U.S. v. Cuesta

• Decision Date: 25 June 1979
• Docket Number: 77-5522,Nos. 77-5510,s. 77-5510
• Citation: U.S. v. Cuesta, 597 F.2d 903 (5th Cir. 1979)
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Adrian CUESTA, a/k/a "Andy" Cuesta, Gloria Ophelia Patterson, Eddie R. Callahan, Anthony George Lopez, Jr., John T. Bowles, a/k/a J. T. Bowles, Leo Matassini, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. William L. TAYLOR, Gloria Ophelia Patterson, Anthony George Lopez, Jr., Eddie R. Callahan, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 903

597 F.2d 903

UNITED STATES of America, Plaintiff-Appellee, v. Adrian CUESTA, a/k/a "Andy" Cuesta, Gloria Ophelia

Patterson, Eddie R. Callahan, Anthony George

Lopez, Jr., John T. Bowles, a/k/a J. T.

Bowles, Leo Matassini,

Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellee, v. William L. TAYLOR, Gloria Ophelia Patterson, Anthony George

Lopez, Jr., Eddie R. Callahan, Defendants-Appellants.

Nos. 77-5510, 77-5522.

United States Court of Appeals Fifth Circuit.

June 25, 1979.

Richard Lazzara, Tampa, Fla. (Court-Appointed), for Cuesta.

Bennie Lazzara, Jr., Tampa, Fla. (Court-Appointed), for Bowles.

Nicholas M. Matassini, Tampa, Fla. (Court-Appointed), for Matassini.

Arthur N. Eggers, Tampa, Fla. (Court-Appointed), for Taylor.

Anthony F. Gonzalez, Tampa, Fla., for Patterson.

Joseph H. Ficarrotta, Tampa, Fla. (Court-Appointed), for Lopez, Jr.

James R. Yon, Tampa, Fla., for Callahan.

Gary L. Betz, U. S. Atty., Jacksonville, Fla., Andrew S. Gordon, c/o T. George Gilinsky, William G. Otis, Washington D. C., for plaintiff-appellee.

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

Before GOLDBERG, Circuit Judge, SKELTON ^*, Senior Judge, and FAY, Circuit Judge.

FAY, Circuit Judge:

These two cases come before us on appeal from the United States District Court, Middle District of Florida. Count I of the ten count indictment charged all appellants except William Taylor, with conspiracy to possess and distribute narcotics, in violation of 21 U.S.C. §§ 846 and 841(a) (1976). Count I was the subject of trial in No. 77-5510. Count II charged appellants Callahan, Lopez, Matassini, Patterson and Taylor with conspiracy to obstruct justice, in violation of 18 U.S.C. §§ 371, 1503 and 1510 (1976). Counts III through X alleged false declarations before a grand jury, in violation of 18 U.S.C. § 1623 (1976); Lopez was charged in Count III, Patterson in Count IV, Callahan in Counts V, VI, and VII, and Taylor in Counts VIII, IX and X. Counts II through X were the subject of trial in No. 77-5522.

Following consecutive jury trials, appellants were convicted as follows: John T. Bowles, Count I; Callahan, Counts I, II, V, VI and VII; Cuesta, Count I; Lauro, ¹ Count I; Lopez, Counts I, II, and III; Matassini, ² Count I; Patterson, Counts I, II and IV; Taylor, ³ Counts II, VIII and X.

Each appellant has filed a brief in this court urging reversal on multiple grounds. Pursuant to Rule 28(i) of the Federal Rules of Appellate Procedure, each appellant has adopted the arguments advanced by each co-appellant. For reasons stated herein, we affirm these convictions.

THE FACTS

I. The Marijuana Conspiracy

The nature of the alleged conspiracies and the claimed errors requires us to set forth the facts in unusual detail.

The evidence against appellants in the two trials consisted primarily of testimony by Carl Swartz, a confidential informant for the FBI, and taped recordings of conversations among the appellants. Viewing the evidence in the light most favorable to the government, See Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), the evidence reveals that on February 25, 1976, Carl Swartz came to Tampa from Fort Myers. On that day, he visited the office of Callahan Bail Bonds where he saw appellants Lopez and Patterson, and met appellant Callahan for the first time.

In early March, while Swartz, Callahan and another man were at a restaurant, appellant Bryant Bowles approached Swartz and introduced himself. After Swartz' companions had departed, Bryant Bowles asked Swartz if he could "move" two hundred pounds of marijuana which Bryant added would arrive in two weeks. Swartz indicated that he thought he could move the marijuana, but first wanted to check. After obtaining assurances from Callahan that it was safe to deal with Bryant, Swartz informed Lopez of his conversation with Bryant and asked if "we could move it." Lopez indicated that the marijuana could be "moved," noting that the asking price of $300 per pound was too high, but confident that the price would come down after the dealing began.

Later that day, Swartz informed Bryant Bowles that he had spoken to someone who Bryant knew, and indicated that that person said there would be no problem moving the marijuana. Bryant asked if the person Swartz was referring to worked at Callahan's office. Bryant responded "You have no problems" when Swartz answered his question in the affirmative. In addition, Bryant indicated that his brother, J. T. Bowles, would be buying the drugs within two weeks.

During the next week, Swartz met with Bryant almost every day. At one of those meetings, Bryant explained that the marijuana would be flown in from Columbia to the Lake Okeechobee area and then brought to Tampa by truck. During this time, Swartz had several general discussions with Lopez regarding the impending deal with Bryant. Lopez reiterated that they would have no problem disposing of the marijuana. Over the weekend Bryant travelled to Fort Myers with Swartz, and had several discussions with him concerning the marijuana deal, including references by Bryant to the fact that his brother, J. T., would be bringing the drugs into the country.

Upon returning from the weekend in Fort Myers, Swartz again discussed the marijuana with Lopez. Lopez said that they should get the price lowered and that Swartz should tell Bryant that he (Lopez) thought the price was too high. Swartz then met with Bryant and, after some negotiation, Bryant reduced the price to $275 per pound.

In the early part of April, Swartz lost touch with Bryant, but he was able to arrange a meeting with J. T. Bowles. J. T. revealed that he knew of Swartz' deal with Bryant and was willing to continue with it. In addition, J. T. said that he would be bringing in 1,000 pounds of marijuana at least every week and hopefully every four to five days. The price for dealing directly with J. T. would be $225 per pound. Swartz informed J. T. that Lopez was his partner. J. T., while approving of Lopez, said that he preferred to deal with Swartz directly.

Swartz in turn told Lopez of the possibility of obtaining 1,000 pounds at $225 per pound. Lopez told Swartz to stay in touch and that the price would come down even more when they saw the money. Lopez asked Swartz to arrange a meeting with J. T. so that they could negotiate a lower price, obtain a sample of the marijuana and arrange for the airplane which J. T. needed to import the marijuana.

During this same time, Lopez was attempting to line up other sources of marijuana. On April 6, 1976, appellants Cuesta and Matassini told Lopez that they could obtain 10,000 pounds of marijuana at $225 per pound, but that they had no outlets. All parties then readily agreed to attempt the transaction and split the profits equally.

By April 22, however, Lopez had still been unable to obtain marijuana. Callahan advised Lopez to deal directly with Harry "the Rock" Hoffman and offered to put Lopez in touch with Hoffman.

On April 23, Lopez had a discussion with Patterson at the bond office. Lopez told of the possible deal with the Bowles brothers for 1,000 pounds and Patterson replied, "We know what to do with it". Lopez also mentioned that Swartz was trying to get a half-pound sample which Lopez would give to Patterson.

Thereafter, J. T. arrived at the bond office. His son brought in a sample of marijuana and gave it to Swartz who, in turn, gave it to Lopez for checking. The next day Lopez told Swartz that the marijuana was good. Patterson confirmed that "the stuff was terrific".

The following day, J. T., Lopez, and Swartz discussed the quality of the drugs and Lopez' offer to supply the plane. J. T. agreed to a price of $185 per pound if Lopez provided the plane. J. T. also mentioned that he had 15 kilograms of cocaine which would be imported with the marijuana. Lopez expressed interest in the cocaine and indicated that he would pay up to $7,000 per kilo. After J. T. left, Lopez told Swartz that everything sounded good, especially the cocaine, and that he would try to get a plane. Lopez discussed with Patterson the possibilities for obtaining a plane, but neither one could find someone willing to loan them the proper type of aircraft.

At about this same time (the middle to latter part of April 1976), appellant Lauro approached Swartz and J. T. at a table in Lopez' bottle club. Lauro asked Swartz if J. T. was the person bringing the "stuff" in and if he (Lauro) "could get in on the action". Swartz referred Lauro to Lopez, and the next morning Lopez told Swartz that they could use Lauro as a driver for $10 per pound.

J. T. told Swartz that he was going to Miami and then to Columbia to complete the arrangements. Swartz did not see J. T. again for about a week. During that week Bryant stayed at Swartz' home. During his stay, Bryant attempted to revive their prior deal for 200 pounds of marijuana. Lopez told Swartz they could still move the 200 pounds for Bryant, but it would be more difficult because of the higher price. Lopez also explained to Swartz that they could do the entire operation themselves, including the importation, but that by dealing through J. T. they would "pay a little more . . . but we don't take no chances."

On May 6, 1976, Lopez told Patterson that it appeared that the deal with J. T. was going to "come off." Lopez' optimism was based on the fact that Swartz had obtained a bank loan to finance the purchase of a plane and that soon J. T. was going to take the aircraft for a dry run. During this conversation with Patterson, Lopez explained that he was trying to help Cuesta and Matassini who were having trouble operating their drug business. Lopez said that he would not talk to either Cuesta or Matassini alone, since they apparently were partners. In spite of this, Lopez spoke to Cuesta and mentioned that the dry run would take place the following day.

On May 12, J. T. reappeared and told Swartz...