U.S. v. Ceballos
| Decision Date | 14 August 2003 |
| Docket Number | Docket No. 01-1431. |
| Citation | 340 F.3d 115 |
| Parties | UNITED STATES of America, Appellee, v. Gabriel CEBALLOS, also known as Sealed Deft. # 3, also known as Gabriel LNU, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Glenn T. Suddaby, United States Attorney for the Northern District of New York, Albany, New York (Richard S. Hartunian, Tina E. Sciocchetti, Assistant United States Attorneys, Albany, New York, of counsel) filed a brief for Appellee.
Philip L. Weinstein, New York, New York (The Legal Aid Society, Federal Defender Division, Appeals Bureau, New York, New York, on the brief), argued for Defendant-Appellant.
Before: KEARSE, and B.D. PARKER, Jr., Circuit Judges, and BERMAN, District Judge*.
Defendant Gabriel Ceballos ("Ceballos") was convicted in the United States District Court for the Northern District of New York, following a jury trial before Thomas J. McAvoy, Judge, on one count of conspiracy to possess and distribute heroin and cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and one count of conspiracy to bribe a public official, in violation of 18 U.S.C. §§ 201(b)(1)(A) and 371 ("bribery conspiracy"); he was sentenced principally to a 136-month prison term for the narcotics conspiracy offense and a 60-month term for the bribery conspiracy offense, to be served concurrently. Ceballos appeals from so much of the judgment as reflects his bribery conspiracy conviction, contending that the evidence at trial was insufficient to permit an inference that he was a member of that conspiracy. We agree and reverse so much of the judgment of the district court as convicts him of conspiring to bribe a public official.
The present prosecution arose out of a 1999-2000 undercover investigation called "Operation Wild Card," conducted jointly by several law enforcement agencies, including the United States Drug Enforcement Administration ("DEA"), the then-Immigration and Naturalization Service ("INS" (which has since ceased to exist as an independent agency, see Homeland Security Act of 2002, Pub.L. No. 107-296, 116 Stat. 2135 (Nov. 25, 2002))), and the New York State ("State") Police. The investigation culminated in a 34-count indictment charging more than three dozen individuals with narcotics trafficking, immigration violations, bribery, and/or conspiracy. Ceballos was charged with one count of narcotics conspiracy and one count of bribery conspiracy, and he stood trial alone.
The principal government witnesses at Ceballos's trial were INS special agent Thomas D. O'Connell, DEA special agent Ulises R. Delgado, and State Police senior investigator Samuel Mercado. There was no testimony from any cooperating coconspirator. The evidence at trial showed the following.
The primary goal of Operation Wild Card (or the "Operation") was the identification, arrest, and conviction of high-level drug traffickers operating in the New York City area. As a secondary goal, the law enforcement agents sought out aliens who were present in the United States illegally or who were engaged in criminal activity. In the Operation, Mercado and Delgado posed as drug dealers who distributed in upstate New York and Canada; O'Connell pretended to be a corrupt INS official who was willing, in exchange for cash, to provide illegal aliens with documents evidencing Permanent Resident Alien status, also known as "green cards." Mercado and Delgado dealt with individuals who both brokered green cards for illegal aliens and distributed narcotics.
One such broker was Pedro Gonzalez ("Gonzalez" or "Pedro"), who eventually led the agents to Ceballos. The general flow of the transactions was as follows. Mercado and Delgado purchased narcotics from Gonzalez; they were to pay him partly in cash and partly in green cards that they would obtain for illegal aliens with the help of the supposedly corrupt INS official. Mercado and Delgado generally charged Gonzalez between $5,000 and $9,500 per card (higher prices were charged for aliens who had criminal records or prior immigration problems), crediting these amounts against the price of the narcotics they received from Gonzalez. Gonzalez received payments from the aliens for the green cards. He obtained narcotics from a supplier, planning to pay the supplier partly out of the cash he received from the aliens and partly out of the cash to be received from Mercado and Delgado upon their resale of the drugs. Gonzalez transported the aliens to a prearranged meeting place, usually a diner near Albany, from where they would be taken to the INS official to begin their green-card processing; on those trips Gonzalez also delivered the narcotics. Mercado and Delgado were to pay the INS official out of the cash generated by the sale of the narcotics they received from Gonzalez.
Between June 1999 and June 2000, Delgado, who had responsibility for receiving and processing the delivered drugs, and Mercado, who arranged for the aliens to meet with the INS official, had many dealings with Gonzalez. During that period, Gonzalez brought the agents 36 aliens for processing. Between June 1999 and mid-February 2000, he delivered to Mercado and Delgado 125 grams of cocaine and quantities of heroin ranging from approximately 100 to 544 grams. Delgado would receive the drugs and transfer them to another DEA agent for testing and safekeeping. The aliens would be taken to one of two adjacent motel rooms that housed the Operation. In that room, the supposedly corrupt INS official would fingerprint the aliens, take information relevant to applications for permanent resident alien status, and instruct the aliens on how to answer questions they might be asked by INS officials in the future. In the adjacent room, agents videotaped the fraudulent green-card activity.
After Gonzalez had made a delivery of 544 grams of heroin on October 15, 1999, for which Gonzalez charged the agents approximately $40,000, the agents gave him only a small payment and delayed paying the remainder. Their goal was to impede Gonzalez's ability to pay his supplier and to force him to turn to the agents for help in explaining that inability, thereby revealing his supplier's identity. As hoped, Gonzalez looked to the agents for help; as a result, the agents learned that Gonzalez's source for the October 15 heroin was one of the aliens they had processed earlier in October, Euler Soto Gallo. Thereafter, the agents dealt directly with Gallo for the drugs he supplied, and Gallo, like Gonzalez, brought aliens to the agents for green cards.
On March 22, 2000, Gonzalez brought the agents six aliens, along with one kilogram of relatively pure heroin that Delgado testified would, after dilution, have a street value of from $800,000 to more than $3 million. Gonzalez and Delgado had previously agreed that the agents would pay Gonzalez a total of $78,000, comprising $75,000 for the heroin and $3,000 as a delivery fee. Mercado learned that Gonzalez had bought the heroin for approximately $58,000. See Tr. 349 ()
The agents charged $30,000 for green cards for the six aliens brought on March 22. Deducting that amount from the $78,000 total to be paid to Gonzalez, the agents owed him $48,000. Delgado and Gonzalez had agreed that the agents would have some 7-10 days to make payment, although the balance could be reduced further if Gonzalez brought additional aliens for green cards. The agents again delayed making full payment to Gonzalez, hoping to force him to identify the supplier of these drugs. On April 4, 2000, Delgado and Gonzalez spoke by telephone. Gonzalez said he needed the money to pay his supplier; Delgado responded that he and Mercado had encountered problems in bringing in drug sale proceeds from Canada and had lost some $135,000, forcing them to delay payment to Gonzalez. Although the agents offered to help Gonzalez explain the delay, Gonzalez resisted introducing them to his supplier, whom he described as a man who ran a computer business. During the next several weeks, Gonzalez brought additional aliens for green-card processing and thereby reduced the agents' debt to him from $48,000 to $11,300.
On May 11, Gonzalez buckled under the pressure he was receiving from his supplier, and he asked Mercado to speak directly with the supplier to explain why Gonzalez had not been able to pay the rest of the debt. As discussed in Part I.B. below, Gonzalez had his supplier, who was eventually identified as Ceballos, telephone Mercado.
A week or so later, Delgado and Gonzalez discussed the possibility of the agents' buying 10-12 kilograms of cocaine at $25,000 per kilo. In mid-June, they agreed that on June 15, Gonzalez would bring several aliens to Albany, and 10 kilograms of cocaine would be brought in another car by one of the supplier's workers. On June 15, Delgado and Gonzalez spoke several times while Gonzalez was waiting for the second driver, whom he identified as his supplier's son. Gonzalez stated that he was going to the home of his supplier, and a New York City surveillance team followed Gonzalez to the home of Ceballos. Delgado testified that, ultimately, the planned June 15 deliveries did not come to pass because Gonzalez
had spoken to the father again and ... the father was able to get a hold of the son, the son was okay, but the ten kilograms of cocaine were in a vehicle, the vehicle could not be moved because it was hot, meaning the police was [sic] around, so at this point it could not be moved. As soon as things calmed down, it wasn't hot or the police wasn't [sic] around, then his son, you know, would be able to finish doing this deal.
(Trial Transcript ("Tr.") 206-07.)
Mercado and Delgado remained in contact with Gonzalez for the next several days, and on June 20, Gonzalez revealed that he had only four kilograms of cocaine...
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