U.S. v. Caraballo-Cruz, CARABALLO-CRU
| Decision Date | 10 February 1994 |
| Docket Number | MONTAEZ-ANAY,Nos. 92-2316,CARABALLO-CRU,D,92-2319,s. 92-2316 |
| Citation | 16 F.3d 401 |
| Parties | NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be cited only in related cases. UNITED STATES of America, Appellee, v. Walterefendant, Appellant. UNITED STATES of America, Appellee, v. Jose Ivanefendant, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
Appeals from the United States District Court for the District of Puerto Rico
Miguel A.A. Nogueras-Castro, Assistant Federal Public Defender, with whom Benicio Snchez-Rivera, Federal Public Defender, was on brief for appellant Walter Caraballo-Cruz. Francisco M. Dolz-Snchez for appellant Jose Ivn Montanez-Anaya.
Carlos A. Perez-Irizarry, Assistant United States Attorney, with whom Charles E. Fitzwilliam, United States Attorney, and Jose A. Quiles-Espinosa, Senior Litigation Counsel, were on brief for appellee.
D. Puerto Rico.
AFFIRMED.
Before Breyer, Chief Judge, Torruella and Boudin, Circuit Judges.
Defendants Walter Caraballo-Cruz ("Caraballo") and Jose Ivn Montanez-Anaya ("Montanez") were convicted by a jury of conspiracy to possess with the intent to distribute cocaine in violation of 21 U.S.C. Secs. 841(a)(1), 846, and of aiding and abetting the possession with the intent to distribute cocaine in violation of 18 U.S.C. Sec. 2. Caraballo challenges the sufficiency of the evidence against him and Montanez appeals the district court's refusal to reduce his sentence for being a minimal or minor participant. We affirm.
The alleged conspiracy in this case involved a plan to smuggle twenty-nine kilograms of cocaine into the continental United States by concealing the drugs in luggage placed on commercial flights departing from San Juan, Puerto Rico. According to the evidence in the record viewed in the light most favorable to the government, United States v. Echeverri, 982 F.2d 675, 676 (1st Cir. 1993), the conspiracy proceeded as follows.
On May 4, 1992, Caraballo and Montanez, along with their two codefendants, Orlando Enrique Monroy-Pedrosa ("Monroy") and Jules Delgado-Valencia ("Delgado"), 1 and several unindicted coconspirators, delivered a total of nine separate pieces of luggage to the American Airlines desk at Luis Munoz Marn International Airport in Isla Verde, Puerto Rico. The defendants checked in the luggage under a variety of assumed names using a series of airline tickets purchased at the same time from the same travel agency. In addition, Montanez purchased two tickets, also under an assumed name, at the airport.
The operation was first detected when United States Customs Service Inspector Vctor Ramos observed Montanez and Monroy each carrying a suitcase with United States Department of Agriculture ("USDA") inspection stickers on them despite the fact that neither had passed through the USDA facility where X-ray inspections are conducted. 2 Montanez and Monroy proceeded to the American Airlines counter where Monroy checked the bags onto a flight to New York under an assumed name.
Upon further surveillance, Inspector Ramos noticed a woman, Gladys Eliana Marulanda-Marn ("Marulanda"), 3 deliver, and then check with the airline, two suitcases that were identical to the luggage delivered by Monroy and Montanez. Marulanda also checked in her bags under an assumed name.
Inspector Ramos alerted other Customs Service officials to this suspicious behavior. The officials then brought in a canine unit to investigate the suspect luggage. The canine unit gave a positive alert for narcotics as to each of the four suitcases. Meanwhile, Customs Inspectors Mara del Carmen Rabell and Hector Cabn, who had also observed Montanez, Monroy, and Marulanda deliver their suitcases, followed Monroy to an airline gate where they watched him board his plane with Marulanda. When informed of the positive alert by the police dogs, Rabell and Cabn entered the plane and arrested Monroy and Marulanda.
Following these arrests, the two Inspectors returned to the American Airlines area where they observed two unattended suitcases with USDA inspection stickers on them. As the Inspectors looked on, Caraballo and another individual grabbed the suitcases, exited the terminal building, and placed them in the trunk of a car which then left without Caraballo and his companion.
Soon thereafter, Inspectors Rabell and Cabn observed Montanez again enter the terminal and carry two more suitcases to the American Airlines counter. Montanez purchased two plane tickets with cash and checked in his luggage. A few moments later, the Inspectors saw Caraballo, together with Delgado, carrying three suitcases. According to Inspector Rabell, two of the three suitcases appeared to be the same ones that she had previously seen Caraballo and his companion place inside the trunk of a car. Rabell did not, however, specify which of the three suitcases Caraballo was carrying. After checking their luggage, again under assumed names, Caraballo and Delgado met with Montanez who was waiting for them in front of a gift shop. Montanez gave Delgado the flight jacket he was wearing after which Caraballo and Delgado proceeded to the airline gate to board their flight.
Inspector Rabell followed Caraballo and Delgado and, after receiving word that all five suitcases were given a positive alert by the canine unit, arrested them on the airplane jetway as they attempted to board their plane. Government agents later found several USDA inspection stickers and sticker fragments in Caraballo's wallet. Inspector Cabn arrested Montanez and seized passenger tickets and boarding passes from him which corresponded to two suitcases that were later found to contain cocaine.
All nine of defendants' suitcases triggered positive alerts for narcotics when presented to the canine unit; however, only five-Government's Exhibits 1, 2, 5, 6, and 7-actually contained cocaine. The first two suitcases, Exhibits 1 and 2, were the ones carried to the American Airlines counter by Monroy and Montanez and checked in by Monroy. The last suitcase, Exhibit 7, was carried and checked in by Montanez under the assumed name of Diego Rivera.
The record contains conflicting evidence, however, as to who carried and who checked in the other two suitcases containing cocaine, Exhibits 5 and 6. Inspector Rabell testified that these were the two suitcases that Caraballo and another individual originally placed in the trunk of a car. Nothing in the record indicates whether, at that point, the two suitcases contained the cocaine that was later found inside them. Rabell also testified that these suitcases, along with a third suitcase that did not contain cocaine, were later carried to the airline counter by either Caraballo or Delgado. According to the airline records, however, Exhibits 5 and 6 were actually checked in under the name Mario Arzuaga, one of the aliases used by Montanez when Montanez purchased his airline tickets and checked in his luggage. The confusion is compounded by the fact that the claim tickets for these two suitcases, Exhibits 5 and 6, were found on Delgado when he was arrested, even though Delgado had checked in only one bag under a completely different alias.
The government tried to suggest that Montanez really checked in Exhibits 5 and 6 and then gave Delgado the claim checks for these suitcases when he handed Delgado his flight jacket. The government never explained, however, the discrepancy between this version of events and Inspector Rabell's testimony that either Delgado or Caraballo carried Exhibits 5 and 6 to the airline counter after Montanez had already checked in two separate pieces of luggage.
At the very least, however, the evidence indicates that Montanez carried a total of at least two suitcases with cocaine to the airline counter (Exhibits 1 or 2 and 7), checked in at least one suitcase with cocaine (Exhibit 7), and purchased and possessed an airline ticket that corresponded to two additional suitcases that were found to contain cocaine (Exhibits 5 and 6). As for Caraballo, the suitcase checked in under his alias, Exhibit 10, did not contain cocaine. Nevertheless, Caraballo was seen carrying suitcases (Exhibits 5 and 6) which contained cocaine at some point, although not necessarily while he was carrying them, either out of or back into the airport.
Drug Enforcement Agency officials found a total of twenty-nine kilograms of cocaine in the five suitcases with an estimated street value of $493,000 to $841,000. The cocaine found in each suitcase was packaged in the same manner and each package was elaborately wrapped to avoid detection.
Caraballo challenges the sufficiency of the evidence supporting his conspiracy and aiding and abetting convictions under 21 U.S.C. Secs. 841(a)(1), 846 and 18 U.S.C. Sec. 2. Upon review of the jury verdict, we examine the evidence in its entirety in the light most favorable to the government to determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The government gets the benefit of all legitimate and favorable inferences and can prove its case by circumstantial evidence without having to exclude every reasonable hypothesis of innocence. Echeverri, 982 F.2d at 677; United States v. Akinola, 985 F.2d 1105, 1109 (1st Cir. 1993); United States v. McLaughlin, 957 F.2d 12, 18 (1st Cir. 1992).
In order to prove a defendant is guilty of conspiracy under 21 U.S.C. Sec. 846, the government must show, beyond a reasonable doubt, that the defendant knowingly and voluntarily participated in an agreement to violate the law and that the defendant did so with the intent to commit the underlying substantive offense. United States v. Seplveda, No. 92-1362, slip op. at 7 (1st Cir. Dec. 20, 1993); Akinola, 985 F.2d at 1110; United States v. Clifford, 979 F.2d 896, 897-98 (1st Cir. 1992); United States v. Tejeda, 974...
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