U.S. v. Cuervelo

• Citation: 949 F.2d 559
• Decision Date: 14 November 1991
• Docket Number: No. 209,D,209
• Parties: UNITED STATES of America, Appellee, v. CUERVELO, et al., Defendants, Omaira Gomez-Galvis, Antonio Jaramillo, Sigfredo Mejia Sanchez, Jose Fernando Cardona, Luis Alberto Correa, Cesar Bravo, Defendants-Appellants. ocket 90-1151.
• Court: U.S. Court of Appeals — Second Circuit

Page 559

949 F.2d 559

UNITED STATES of America, Appellee, v. CUERVELO, et al., Defendants,

Omaira Gomez-Galvis, Antonio Jaramillo, Sigfredo Mejia

Sanchez, Jose Fernando Cardona, Luis Alberto

Correa, Cesar Bravo, Defendants-Appellants.

No. 209, Docket 90-1151.

United States Court of Appeals, Second Circuit.

Argued March 11, 1991.

Decided Nov. 14, 1991.

Mark B. Gombiner, New York City (The Legal Aid Soc., Federal Defender Services Appeals Unit, of counsel), for defendant-appellant Omaira Gomez-Galvis.

Christine Gray, Asst. U.S. Atty., New York City (Otto G. Obermaier, U.S. Atty., S.D.N.Y., Daniel C. Richman, Asst. U.S. Atty., of counsel), for appellee.

Before FEINBERG, NEWMAN and PIERCE, Circuit Judges.

PIERCE, Senior Circuit Judge:

Omaira Gomez-Galvis appeals from a judgment of conviction and sentence entered in the United States District Court for the Southern District of New York, Peter K. Leisure, Judge, after a jury trial, in which she was found guilty of conspiring to distribute cocaine in violation of 21 U.S.C. § 846, conspiring to import cocaine in violation of 21 U.S.C. § 963, and importing cocaine in violation of 18 U.S.C. § 2, 21 U.S.C. §§ 812, 951, 952(a), 960(a)(1), and Gomez-Galvis' principal contention on appeal is that because there was no pre-trial hearing and because the district court accepted her version of the events, her motion to dismiss the indictment should have been granted by the district court because of outrageous governmental conduct arising from her alleged sexual relationship with a federal undercover agent, Rene DeLaCova; or, alternatively, the case should be remanded for findings of fact.

                960(b)(1)(B). 1  The district court sentenced Gomez-Galvis under the Sentencing Guidelines ("Guidelines") to 360 months imprisonment, a 5 year term of supervised release, and a $150 assessment
                

We remand the case to the district court for a hearing to be held and findings of fact and conclusions of law to be made vis-a-vis Gomez-Galvis' contentions and the role of the government, if any, in connection with this matter. In light of our remand, we decline to address the other issues raised by appellant at this time, ² however, we retain jurisdiction over any appeal taken after the hearing and from the district court's determinations and rulings on Gomez-Galvis' motion to dismiss the indictment.

BACKGROUND

At this time, we need only recount so much of the record of proceedings and trial evidence as relates to Gomez-Galvis' claim of outrageous governmental conduct. On November 7, 1987, appellant Gomez-Galvis was introduced to United States Drug Enforcement Administration ("DEA") Agent Rene DeLaCova in Panama City, Panama, by Jairo Sanchez, an acquaintance of Gomez-Galvis. At that time, DeLaCova was an undercover agent, posing as one "Julio Chavez," an operator of an import-export company with access to several airplanes. According to DeLaCova's testimony, during their conversation on that date, Gomez-Galvis told him that she worked for one of the major drug trafficking organizations in Medellin, Colombia and that she supplied chemicals used in the processing of cocaine to most of the major labs in Colombia. DeLaCova testified that at the end of the evening Gomez-Galvis gave him her business and home telephone numbers in Colombia. According to DeLaCova, Gomez-Galvis left for Colombia the next day.

DeLaCova testified that two weeks later, on November 22, 1987, Gomez-Galvis returned to Panama at his invitation. The next day, DeLaCova obtained a United States visa for Gomez-Galvis so that she could visit him in the United States; in addition, they took a trip on a private airplane to a small island, which is considered part of Panama. He testified that during the trip Gomez-Galvis and he discussed using the island as a transshipment point for drugs. On the following day, November 24, 1987, she left Panama to return to Colombia. DeLaCova testified that during these meetings he tried to establish a "love interest" between Gomez-Galvis and himself, but that they never engaged in sexual intercourse. He also testified that, during the period of the investigation, they did not see each other again after November 24, 1987.

DeLaCova further testified concerning the events that occurred thereafter. In January 1988, Gomez-Galvis sent Jairo Sanchez to Panama to deliver a suitcase, which purportedly contained one kilogram of heroin, to DeLaCova. Finding that the sample contained narceine, a poppy derivative, DeLaCova refused to pay the agreed price of $22,000. In March 1988, on DeLaCova's behalf, Gomez-Galvis met with a drug supplier in Colombia, regarding a transaction involving DeLaCova. However In July 1988, according to DeLaCova's testimony, Gomez-Galvis and Emiro Cuervelo went to Panama to negotiate with DeLaCova. DeLaCova testified that he avoided meeting with Gomez-Galvis and Cuervelo, feeling that his prior "romancing" of Gomez-Galvis might compromise the investigation. Between September 1988 and February 1989, Gomez-Galvis and DeLaCova made several attempts to arrange drug transactions.

                there was no testimony that this transaction ever took place.   On June 20, 1988, DeLaCova spoke with a confidential informant and Gomez-Galvis on the telephone.   In this conversation, DeLaCova learned that Gomez-Galvis was representing Carlos Vaquero, the source of cocaine in a transaction being negotiated
                

DeLaCova testified that on February 28, 1989, he spoke with Gomez-Galvis and Cuervelo concerning a transaction for 300 kilograms of cocaine. DeLaCova also testified that Gomez-Galvis decided to fly to New York in early March 1989 to find buyers for the cocaine. Gomez-Galvis, Cuervelo and DeLaCova agreed that any profits realized from any drug transaction they effected were to be split equally among themselves. DEA undercover agent Dean Kiernan, who was acting as one of DeLaCova's employees in the drug trafficking business, testified that he met Gomez-Galvis at John F. Kennedy International Airport in New York City on March 7, 1989. However, according to DeLaCova, this deal did not take place because of police activity Cuervelo encountered near the Venezuelan border. DeLaCova testified that in early April 1989, he was told by Gomez-Galvis that Cuervelo had a source who could supply 500 kilograms of cocaine to be received by DeLaCova and shipped by him from Panama to New York.

According to DeLaCova, on April 2, 1989, Cuervelo and he met in Panama, discussed the delivery and financial arrangements for the 500 kilograms, and agreed that the fee from the transaction would be split equally between Cuervelo, Gomez-Galvis and himself. The next day Cuervelo assisted in the delivery of 390 of the 500 kilograms to DeLaCova in Panama; the other 110 kilograms were to follow. DeLaCova testified that in his conversations with Gomez-Galvis between April 4th and 6th, he told her to work out arrangements with Kiernan regarding delivery of the drugs once they reached New York. On April 6, 1989, DeLaCova delivered the 390 kilograms of cocaine to another DEA agent in Panama; that agent brought the drugs to New York and kept them in DEA custody. Kiernan testified that on April 7, 1989, Gomez-Galvis, Jose Fernando Cardona and he arranged for delivery of the cocaine.

On April 7, 1989, Cardona, Antonio Jaramillo, and Sigfredo Mejia Sanchez arrived at a previously designated intersection in New York City, where Cardona had been told by Kiernan that a van with cocaine would be waiting. The DEA had placed two vans at the intersection; one containing counterfeit cocaine, and the other containing approximately 50 kilograms of the cocaine the DEA had transported to New York from Panama. Kiernan testified that the DEA had planned to have Cardona and the others drive away in the van containing the counterfeit cocaine. The other van, with the 50 kilograms of cocaine, was present in the event the individuals picking up the van wanted to examine the cocaine prior to accepting it.

Kiernan gave Jaramillo the key to the van containing the counterfeit cocaine and Jaramillo entered the van and drove away. Sanchez followed Jaramillo in a separate car. After they left, Cardona was arrested at the scene. Gomez-Galvis and the other appellants soon thereafter were arrested at various locations in and around New York City. On April 20, 1989, a two-count indictment was filed. Count One charged Omaira Gomez-Galvis and nine others with conspiring to import, distribute and possess with intent to distribute over 200 kilograms of cocaine, and Count Two charged Omaira Gomez-Galvis and Cuervelo with importing approximately 390 kilograms of cocaine. ³ At a status conference held on May 8, 1989, the district court set four weeks for the Omaira Gomez-Galvis' claim of outrageous governmental conduct surfaced as an issue in a letter dated August 29, 1989, which was sent to the district court. This letter was received about two months after the deadline for all pre-trial motions had passed, but apparently soon after Gomez-Galvis had orally informed her attorney of DeLaCova's alleged conduct. In the letter to the district judge, defense counsel asserted that Gomez-Galvis had been recruited into the charged drug conspiracy by a DEA undercover agent named "Julio." In the letter, it was alleged that she had had sexual relations with "Julio" on at least 15 occasions, that "Julio" had given her gifts of money, clothes and jewelry, that he had written her "a number of love letters," and that he had induced her to come to the United States by procuring a visa for her and paying her way. On the basis of these allegations, Gomez-Galvis claimed that DeLaCova's conduct constituted outrageous governmental conduct within the meaning of United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). She requested that her scheduled suppression hearing be expanded to seek dismissal of the indictment on the grounds of outrageous governmental conduct. In...