U.S. v. Camejo

• Decision Date: 22 April 1991
• Docket Number: No. 89-5707,89-5707
• Citation: 929 F.2d 610
• Parties: 32 Fed. R. Evid. Serv. 1212 UNITED STATES of America, Plaintiff-Appellee. v. Ovidio CAMEJO, Luis Rivera-Torres, Livingston K. Smith, Luis F. Setien, Raul Anchia, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 610

929 F.2d 610

32 Fed. R. Evid. Serv. 1212

UNITED STATES of America, Plaintiff-Appellee. v. Ovidio CAMEJO, Luis Rivera-Torres, Livingston K. Smith, Luis F. Setien, Raul Anchia, Defendants-Appellants.

No. 89-5707.

United States Court of Appeals Eleventh Circuit.

April 22, 1991.

Jeffrey S. Weiner, Miami, Fla., for Camejo.

Russell K. Rosenthal, Coral Gables, Fla., for Smith.

Charles G. White, Miami, Fla., for Setien.

Benjamin S. Waxman, Jefrey S. Weiner, Miami, Fla., for Anchia.

Victor Martinez, Bruce Kessler, Asst. Federal Public Defenders, Miami, Fla., for Rivera.

Dexter W. Lehtinen, U.S. Atty., Phillip DiRosa, Mayra R. Lichter, Linda Collins Hertz, Miami, Fla., for U.S.

Appeals from the United States District Court for the Southern District of Florida.

Before TJOFLAT, Chief Judge, EDMONDSON Circuit Judge, and DYER, Senior Circuit Judge.

DYER, Senior Circuit Judge:

Five defendants, who were employees of Eastern Airlines, appeal their convictions

of conspiracy to import and to possess with intent to distribute cocaine. The multiple assertions of error in the trial below do not raise any grounds which require reversal. We affirm the convictions.

BACKGROUND

Ruy Martinez, an Eastern Airlines baggage handler at the Miami International Airport, organized a scheme to smuggle cocaine from Colombia through the use of incoming commercial flights to be off-loaded in Miami. Between 1982 and 1984, large quantities of cocaine loaded into suitcases were delivered into the airport, hidden in various aircraft compartments. In the smuggling operation, Martinez used the services of baggage handlers and supervisors. Martinez paid the individuals for their participation after each flight where cocaine was off-loaded. Each individual performed a specific task to accomplish removal of the luggage from the designated incoming flights and its delivery through the airport. The supervisors who were involved either made sure that baggage containing cocaine on Eastern flights was always off-loaded by the crews of conspirators or kept non-conspirators away from aircraft during crucial times. Martinez' crew used baggage carts to deliver the contraband to Frank Bascaus, an agent of Mexicana Airlines, who would move the cocaine through the airport using an elevator.

Each appellant participated in this scheme along with a number of other baggage handlers recruited by Martinez. Raul Anchia's role was to work inside the aircraft removing the cocaine-filled suitcases from their hiding places. Anchia earned $15,000 to $30,000 per flight. Luis Setien, as lead man on a ramp, was responsible for directing his crew of baggage handlers toward the aircraft to be unloaded and supervising his crew as cocaine-filled suitcases were off-loaded. Initially, Setien had been paid $5,000 per flight for his silence regarding the conspiracy once he discovered what the others were involved in. Later, his active participation increased and he was paid $10,000 per flight by Martinez. Ovidio Camejo was a tractor driver in the vicinity of the off-loading operations. He created diversions when customs agents or non-conspiring supervisors presented a threat to the activities. Martinez paid Camejo $4,000 to $5,000 for each flight in which he participated. Luis Rivera-Torres worked inside the aircraft, removing cocaine-filled suitcases, and then passed the suitcases to drivers to be taken through the airport. Martinez paid Rivera-Torres $20,000 to $30,000 each time he performed these tasks. Livingston K. Smith was a transfer-point driver who delivered baggage from carts at the change-point for continuation on domestic flights. The normal loading procedure worked as a cover and at times functioned to create a diversion. Smith received $2,000 on one occasion from Martinez' wife, and admitted the receipt of payments on a few occasions for moving baggage in connection with Eastern flights.

Charges were brought against all of the known participants: Count 1 for the importation of cocaine and Count 2 for possession with intent to distribute cocaine. Guilty pleas were entered by 12 co-defendants. Three co-defendants were acquitted. Anchia, Camejo and Rivera-Torres were found guilty of both counts. Smith and Setien were found guilty of conspiracy to import.

SETIEN

Prior Acts of Good Conduct

Setien's witness Max Mermelstein made a proffer of his testimony outside the presence of the jury. He testified that during the period that Setien was accused of having been involved in the cocaine importation conspiracy, they met regularly as social friends. During that time, Mermelstein was involved as a high level importer and distributor of cocaine throughout the United States. He offered Setien the lure of easy money if he would quit his job as an Eastern Airlines baggage handler and just hang around Mermelstein while he conducted his narcotics business. Setien refused to involve himself in the narcotics business and repeatedly reminded Mermelstein The government filed a motion in limine objecting to Mermelstein's proffered testimony, on the ground that individual acts of good conduct cannot be permitted to demonstrate good character.

of the damage he was doing to society.

Setien argues that one of the essential elements of the offense charged was his mens rea during the time he was alleged to have agreed to join this conspiracy, and that Mermelstein's offer was relevant to show he was offered an opportunity to do the same thing and refused. The court ruled that the testimony was irrelevant under Rule 405(b) and was not admissible under Rule 404(b). We agree.

Evidence of good conduct is not admissible to negate criminal intent. Michelson v. United States, 335 U.S. 469, 477, 69 S.Ct. 213, 219, 93 L.Ed. 168 (1948); United States v. Russell, 703 F.2d 1243, 1249 (11th Cir.1983). Mermelstein's proffered testimony was merely an attempt to portray Setien as a good character through the use of prior "good acts". The trial judge properly exercised his discretion in excluding this testimony as inadmissible character evidence.

Sufficiency of Evidence

"To determine whether sufficient evidence supports the convictions, we must view the evidence in the light most favorable to the prosecution and decide whether a reasonable fact finder could have reached a conclusion of guilt beyond a reasonable doubt." United States v. Perez, 922 F.2d 782 (11th Cir.1991) (citing United States v. Sanchez, 722 F.2d 1501, 1505 (11th Cir.), cert. denied, 467 U.S. 1208, 104 S.Ct. 2396, 81 L.Ed.2d 353 (1984)).

Setien submits that the finding of the jury that he was not guilty of conspiracy to possess the cocaine as it was being moved through the airport (count 2), eliminates the evidence so rejected from being considered on the conspiracy to import (count 1) and leaves his only participation the acceptance of "hush" money. Thus, Setien argues that when he decided not to "blow the whistle" on the operation, he was not entering into an agreement to import cocaine, he was merely agreeing not to report the existence of the criminal conspiracy to the authorities and that the benefit to the conspiracy was merely an incident of that separate agreement.

This argument is unpersuasive. The jury undoubtedly believed that Setien's involvement in the conspiracy to import ended after the drugs were taken off the aircraft and that he had nothing to do with the conspiracy to possess the cocaine with intent to distribute it. See United States v. Johnson, 889 F.2d 1032, 1035 (11th Cir.1989) (per curiam). Our review is limited to whether the evidence is sufficient to support the guilty verdict returned by the jury as to Setien's participation in the conspiracy to import cocaine. Id.

Even if Setien's only involvement in the conspiracy was accepting hush money, he would be guilty of conspiracy to import cocaine. Proof that a conspiracy existed, and that Setien knew of its existence is overwhelming. Setien clearly understood the objectives of the conspiracy and that he would benefit monetarily from the successful goal of the conspiracy. This is not "mere presence" or "mere association"; this is an act from which the jury could infer an intent to participate in an unlawful enterprise. United States v. Catchings, 922 F.2d 777 (11th Cir.1991) (per curiam); United States v. Jackson, 700 F.2d 181, 185 (5th Cir.), cert. denied, 464 U.S. 842, 104 S.Ct. 139, 78 L.Ed.2d 132 (1983); United States v. Hawkins, 661 F.2d 436, 453-54 (5th Cir. Unit B 1981), cert. denied, 456 U.S. 991, 102 S.Ct. 2274, 73 L.Ed.2d 1287 (1982).

But Setien did more than simply accept hush money. He was paid as much as $10,000 each time a cocaine flight was off-loaded. He was the lead man in his crew and physically supervised baggage handlers on his crew. On some occasions he acted as a lookout while other conspirators actually unloaded the cocaine from the aircraft. The jury could reasonably infer that Setien's action in supervising his crew as it unloaded contraband and in acting as a

lookout were knowing and intentional acts of participating in the conspiracy. United States v. Gordon, 712 F.2d 110, 114 (5th Cir.1983); United States v. Diaz, 655 F.2d 580, 584 (5th Cir. Unit B 1981), cert. denied, 455 U.S. 910, 102 S.Ct. 1257, 71 L.Ed.2d 448 (1982). See, e.g., United States v. Pareja, 876 F.2d 1567, 1570 (11th Cir.1989); see also United States v. Pui Kan Lam, 483 F.2d 1202, 1208 (2nd Cir.1973), cert. denied, 415 U.S. 984, 94 S.Ct. 1577, 1578, 39 L.Ed.2d 881 (1974) (acting as a lookout).

Theory of Defense Jury Instruction

Setien's theory of defense instruction is based upon his argument that mere acceptance of hush money is not legally sufficient to convict him of importation of cocaine. The trial judge refused to give the instruction as not supported by the facts or by law.

A refusal to give a requested theory of defense instruction is reversible error only if the requested instruction "(1) was correct, (2) was not substantially covered by ...