U.S. v. Delgado

• Decision Date: 05 July 1995
• Docket Number: No. 92-4141,92-4141
• Citation: 56 F.3d 1357
• Parties: 42 Fed. R. Evid. Serv. 794 UNITED STATES of America, Plaintiff-Appellee, v. Juan DELGADO, Emilio Albelo, Juan Carlos Riverol, Tomas Raul Hernandez, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1357

56 F.3d 1357

42 Fed. R. Evid. Serv. 794

UNITED STATES of America, Plaintiff-Appellee, v. Juan DELGADO, Emilio Albelo, Juan Carlos Riverol, Tomas Raul

Hernandez, Defendants-Appellants.

No. 92-4141.

United States Court of Appeals, Eleventh Circuit.

July 5, 1995.

Arthur Joel Berger, Miami, FL, for Delgado.

Gerardo A. Remo, Jr., Miami, FL, for Albelo.

Robert L. Moore, Miami, FL, for Riverol.

J. Rafael Rodriguez, Miami, FL, for Hernandez.

James G. McAdams, III, U.S. Atty., Miami, FL, Neil Karadbil, Barbara A. Ward, Hal Goldsmith, Asst. U.S. Attys., West Palm Beach, FL, for appellee.

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

Before COX and BLACK, Circuit Judges, and FAY, Senior Circuit Judge.

FAY, Senior Circuit Judge:

This appeal arises from a four-count conviction on assorted drug charges against Appellants/Co-Defendants Delgado and Albelo, a two-count conviction against Appellant/Co-Defendant Hernandez, and a one-count conviction against Appellant/Co-Defendant Riverol. Except as to Hernandez, the indicted activity involved a conspiracy and a substantive count for both importation and possession with intent to distribute at least five kilograms of cocaine.

The appellants allege myriad errors in the trial.

I. BACKGROUND

i. Procedure

In May of 1988 a federal grand jury in Miami returned a six-count indictment charging Delgado and five other men with the following: conspiracy to import at least five kilograms of cocaine; importation of at least five kilograms of cocaine; conspiracy to possess with intent to distribute at least five kilograms of cocaine; and possession with intent to distribute at least five kilograms of cocaine. Other charges against Delgado alone were severed before trial.

In March of 1990 another grand jury returned a superseding indictment, adding Albelo Riverol, and four other men as defendants in each of the four counts. Hernandez and another man were added as defendants only in the conspiracy and substantive counts of possession with intent to distribute. In July of 1991 Delgado, Albelo, Riverol, Hernandez, and another man went to jury trial. The jury convicted Delgado, Albelo, and Hernandez on all counts; the jury convicted Riverol of conspiring to import at least five kilograms of cocaine, but acquitted him on all other counts; the jury acquitted the fifth man on all counts.

ii. Facts

Evidence admitted at trial permitted the jury to find the following facts:

Early in 1989 Emilio Albelo contacted Manual Goyanes about working for Juan Antonio Delgado as a cocaine smuggler. Delgado was in Colombia visiting a federal fugitive who could provide 300 kilograms of cocaine. The cocaine was to be picked up in Colombia, flown to Treasure Cay in The Bahamas, and then taken by fast boats to South Florida. Delgado and the fugitive's wife were to receive the cocaine in the United States.

While planning the conspiracy, Delgado held several meetings, including one at a Taco Bell in Miami. The conspirators also met three to four times a week at Delgado's home. In addition, they met three to four times a week at Riverol's farm in Homestead, where they used Riverol's high-powered radio to contact the federal fugitive in Colombia. The conspirators used the radio because it was more difficult to trace than a phone call.

Unfortunately for the conspirators, the pilots they had chosen to smuggle the drugs were arrested in Nassau, The Bahamas, on an unrelated drug run and the plane was seized by Bahamian law enforcement. Next, the conspirators contacted two American friends, Mike and Dave. Unbeknownst to the conspirators, Mike and Dave were undercover operatives working for the Drug Enforcement Administration ("DEA"). They reported the contact to the DEA and began to set up a sting operation. The conspirators offered Mike and Dave $200,000 to fly 500 kilograms of cocaine from Colombia to Treasure Cay. Later, the expected payment was increased to $250,000 plus $15,000 for expenses, and the load was increased to 600 kilograms.

On May 10, 1989, Mike and Dave flew to Colombia in accord with the plan. In Colombia, however, they were unable to make radio contact with anyone. They returned to Florida and reported this trouble to the conspirators. The conspirators confirmed the problem in Colombia and scheduled a second attempt.

On May 19, 1989, Mike and Dave again left for Colombia. As they had done on the first trip, they stopped at Guantanamo Naval Base to be checked by DEA agents before continuing to Colombia. One conspirator waited in Treasure Cay to make radio contact with the plane; two others, one of whom was Albelo, readied themselves in Fort Lauderdale with a boat to pick up the cocaine once it reached The Bahamas.

Mike and Dave landed in Colombia at 2:45 a.m. Armed individuals helped Dave load green padlocked duffel bags onto the aircraft. He then flew back to Guantanamo, where he met a DEA Special Agent. The DEA unloaded the bags, which contained around 600 kilograms of cocaine, counted and initialed them. DEA pilots and the Special Agent flew the cocaine into West Palm Beach.

Meanwhile, Mike and Dave flew towards Treasure Cay, where the DEA had placed a Coast Guard helicopter to create a cover story to explain why Mike and Dave could not land in The Bahamas. The conspirator stationed at Treasure Cay saw the helicopter, warned Mike and Dave by radio not to land, and instructed them to drop the cocaine onto Abaco Island. Dave said he could not do that and would take the cocaine into the United States. Mike and Dave landed their empty plane at Palm Beach International Airport and notified the conspirators that they had arrived safely and needed to know what to do with the cocaine.

The conspirators were unnerved, called a meeting, and debated whether to take the cocaine. Some members were concerned the DEA had engineered the successful flight into the United States. Finally they decided two conspirators would pick up the cocaine the following day while the remaining conspirators provided surveillance and protection. Meanwhile, the DEA planned their own surveillance of the controlled delivery.

The delivery took place in a Boca Raton shopping center. Mike and Dave met with the conspirators and got their approval to drive to another location to place the cocaine in a van that, unbeknownst to the conspirators, had been equipped with a kill switch by a DEA agent. Dave returned with the van loaded with 570 kilograms of cocaine and gave the keys to one of the conspirators. Two conspirators drove the van out of the parking lot and the others followed in several cars. DEA agents followed as well. Once the van reached Miami the DEA activated the kill switch, stopping the van, and arrested the two men on board. They took a digital pager from one of them.

At 10:00 p.m. the pager was activated and the number to a pay phone was left. The DEA, in possession of the beeper, traced the number and dispatched agents. Upon arrival the agents recognized Delgado and other conspirators and their cars. DEA agents arrested Delgado, Albelo and others. Hernandez and Riverol were not arrested; the government contends they got away before the agents could identify them.

A couple months later, and unrelated to the events charged in the indictment, Hernandez was arrested while trying to buy twelve kilograms of cocaine from an undercover police officer. As a result he was convicted of conspiring to distribute and attempting to possess with intent to distribute over five kilograms of cocaine.

II. STANDARDS OF REVIEW

This appeal requires review of findings of fact, conclusions of law, and discretionary rulings on whether to admit or exclude evidence.

We will not disturb the trial judge's decision to admit or exclude Fed.R.Evid. 404(b) "other crimes" evidence absent a clear showing of abuse of discretion. United States v. Miller, 959 F.2d 1535, 1538 (11th Cir.1992) (en banc).

We will not disturb the trial judge's Jencks Act findings absent clear error. United States v. Williams, 875 F.2d 846, 853 (11th Cir.1989).

We review evidence sufficiency, a question of law, de novo. United States v. Kelly, 888 F.2d 732, 739 (11th Cir.1989). We view the evidence in the light most favorable to the government including all reasonable inferences and credibility judgments. See Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). We ask whether a reasonable trier of fact, when choosing among reasonable constructions of the evidence, could have found the defendant guilty beyond a reasonable doubt. Kelly, 888 F.2d at 740.

Because improper vouching is a mixed question of law and fact, and because the defendants objected contemporaneously at trial, our review is plenary. United States v. Eyster, 948 F.2d 1196, 1206 (11th Cir.1991). Prosecutorial misconduct requires a new trial only if we find the remarks (1) were improper and (2) prejudiced the defendants's substantive rights. United States v. Cannon, 41 F.3d 1462, 1466 (11th Cir.1995). We review them in context and assess the probable jury impact. Id.

We review a trial judge's response to a jury query during deliberations for an abuse of discretion. United States v. McDonald, 935 F.2d 1212, 1221-22 (11th Cir.1991).

A sentencing court's determination under the Federal Sentencing Guidelines of a defendant's role in the offense is a factual finding. United States v. Castillo-Valencia, 917 F.2d 494, 501 (11th Cir.1990), cert. denied, 499 U.S. 925, 111 S.Ct. 1321, 113 L.Ed.2d 253 (1991). We do not disturb the sentencing court's fact findings absent clear error. 18 U.S.C. Sec. 3742(e); United States v. Davis, 902 F.2d 860, 861 (11th Cir.1990). Nonetheless, we review de novo the sentencing court's Federal Sentencing Guidelines application to those facts. United States v. Rodriguez, 959 F.2d 193, 195 (11th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 649, 121 L.Ed.2d 563 (1992).

III. ANALYSIS

A. The Jencks...