U.S. v. DeVarona, 88-5555
| Decision Date | 18 April 1989 |
| Docket Number | No. 88-5555,88-5555 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Nelson DeVARONA, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
W. Troy McKinney, George J. Parnham, Houston, Tex., for defendants-appellants.
Mervyn Hamberg, Crim. Div., Dept. of Justice, Washington, D.C., LeRoy Morgan Jahn, Asst. U.S. Atty., Helen M. Eversberg, U.S. Atty., Daniel Maeso, Asst. U.S. Atty., San Antonio, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Western District of Texas.
Before THORNBERRY, WILLIAMS and DAVIS, Circuit Judges.
Nelson DeVarona appeals his conviction for conspiracy to possess cocaine with intent to distribute on grounds that: (1) a variance existed between the indictment and the government's proof; and (2) the indictment improperly joined his conspiracy count with a substantive possession count against two other defendants. We find no error and affirm.
A jury convicted DeVarona on one count of a two-count indictment for conspiracy to possess cocaine with intent to distribute under 21 U.S.C. Sec. 846. Count One alleged a single conspiracy between DeVarona and three co-defendants--Daniel Vilarchao, Jose Fontao, and Ovidio Rodriguez Cantu--running from January 24, 1985 until February 24, 1986. The second count charged only Vilarchao and Fontao with a substantive possession offense under 21 U.S.C. Sec. 841(a)(1). The government tried DeVarona jointly with Fontao; Vilarchao was a fugitive at the time of trial.
DeVarona argues that the single conspiracy charged in the indictment encompasses at least two, and perhaps three, distinct conspiracies including (1) cocaine discovered aboard a speed boat near Miami on January 24, 1985; and (2) efforts to sell cocaine in San Antonio from late December 1985 until February 24, 1986. The government portrays these events as related episodes in a single conspiracy masterminded by Vilarchao to funnel cocaine inland from Miami.
On January 24, 1985, officers from the Metro-Dade Police Department and the United States Customs Service tracked two speed boats that had stopped together for several minutes off Bimini Island near the Bahamas. The speed boats traveled from Bimini to an inlet just north of Miami Beach; Customs and North Miami Police Department officers began chasing the speed boats as they entered the inlet.
One boat docked at a marina just before the police reached it. Vilarchao, one of the boat's three occupants, produced the registration certificate for another boat when questioned by police. A preliminary search uncovered no drugs.
The second boat crash-landed in a yard further up the waterway; its two occupants escaped before police arrived. A Customs officer noted that the registration number on the second boat matched the number on the form Vilarchao had given him for the first boat. A search of the second boat revealed photocopies of a registration certificate for the first speed boat in co-defendant Fontao's name. Police also discovered about six pounds of cocaine encased in two fiberglas containers.
When police returned to the marina where the first boat was docked, they discovered that the top of the boat's seating area had been tampered with and a large space under the seats was empty. Police seized both boats and moved them to another marina for storage. The government eventually returned the first boat to Fontao.
On February 4, 1985, police discovered that someone had broken into the second boat at the marina. They investigated and found two hidden compartments in the second boat; one was full of fiberglas containers, while the nearly empty second compartment held just a few containers. Police also discovered two more containers floating nearby in the water. Each container held about one kilogram of cocaine.
At trial a Customs agent who participated in the initial chase and a North Miami Police Department vice officer who investigated the marina break-in described the packaging of the cocaine they discovered on the second boat. The watertight packaging method involved wrapping the cocaine in plastic, tinfoil and newspaper, or in a plaster-like substance, and encasing it in fiberglas to create a buoyant cocaine "football" or "brick." Both officers testified that this packaging method was unique in their experience.
The government presented no evidence of any events occurring between February 4, 1985 and early December 1985. The government says the conspiracy's second episode began in December; DeVarona says the second conspiracy began then.
In late 1985, Mondo Romano, a San Antonio resident, and DeVarona's co-defendant, Cantu, agreed to pursue drug sales in San Antonio. In an effort to find a supplier Cantu contacted Osvaldo Scaffidi, a drug dealer with connections in Texas and Florida. Romano's shaky financial condition prompted him to bring Michael Scudder, a real estate agent with whom Romano previously had conducted legitimate business, into the deal. In later meetings Romano portrayed Scudder--an amateur who got in over his head--as the actual buyer of the cocaine.
When Romano, Scudder, Cantu and Scaffidi met on December 10, 1985, Scaffidi said his contacts from Houston and Florida would come to San Antonio to discuss a large cocaine sale with Scudder. After the meeting Scaffidi contacted DeVarona in Houston; in turn, DeVarona contacted Vilarchao in Miami. DeVarona flew to Miami and met with Vilarchao. On December 13, 1985, Vilarchao and DeVarona flew to San Antonio. Scaffidi picked them up at the airport and the three men went out to dinner.
At dinner Scaffidi told Vilarchao and DeVarona that Scudder wanted to buy ten kilograms of cocaine. Vilarchao described generally his method of smuggling cocaine into Miami using speed boats, and mentioned a trip during which he had dumped 400 kilograms of cocaine into the water so that the police would not catch him with it. Vilarchao also told Scaffidi that Vilarchao and DeVarona had known each other a long time and had been "working together for some time," which Scaffidi understood to mean working together in the drug trade. In addition, Scaffidi testified that DeVarona told him at another meeting that they each would earn $4,000 per kilogram of cocaine.
Although Scudder wanted to back out, Romano continued to negotiate with Scaffidi, DeVarona and Vilarchao. Romano and Cantu pressured Scudder into meeting with Scaffidi, DeVarona and Vilarchao at Scudder's real estate office on December 14, 1985 to negotiate the purchase of ten kilograms of cocaine. Vilarchao said he owned the cocaine but had shipped it to San Antonio according to DeVarona's instructions for Scaffidi to sell. During this meeting Vilarchao and DeVarona quarrelled briefly, after which Vilarchao told DeVarona to be quiet because he, Vilarchao, owned the cocaine and would direct its disposition.
After the meeting, Vilarchao returned to his hotel room, called a partner in Miami, and told him to send co-defendant Fontao with the cocaine from Miami to San Antonio. Fontao drove the cocaine from Miami to San Antonio over the weekend of December 14-15, 1985. On Monday morning, December 16, Fontao drove Vilarchao and DeVarona to Scaffidi's hotel in San Antonio. Fontao asked Scaffidi if he had a tool to loosen the spare tire and gain access to a hidden compartment containing the cocaine. After Scaffidi said he had no such tool, Fontao and Vilarchao drove off and left DeVarona with Scaffidi.
Vilarchao called Scaffidi several hours later and asked Scaffidi to send DeVarona to pick up the cocaine. DeVarona said he felt ill and refused. Scaffidi then went alone to meet Vilarchao in a supermarket parking lot near Scaffidi's hotel, where Vilarchao gave him a paper bag containing one kilogram of cocaine in a fiberglas container. Vilarchao told Scaffidi that he would give Scaffidi and DeVarona the remaining nine kilograms after the first had been sold. At trial, Scaffidi examined a picture of a fiberglas-encased cocaine brick recovered from the Miami marina in February 1985 and testified that it was "almost the same" as the cocaine container he received from Vilarchao in the parking lot.
Scaffidi took the kilogram of cocaine back to his hotel room, where DeVarona cut a small portion of it as a sample for Romano and Cantu. DeVarona described the cocaine as "beautiful." Scaffidi, DeVarona and a third person spent the rest of December 16 in an unsuccessful effort to sell the kilogram of cocaine.
When the three returned to Scaffidi's hotel room they found Vilarchao and Fontao waiting for them. While in the room Vilarchao and DeVarona argued again, during which Vilarchao accused DeVarona of trying to steal the cocaine. The argument ended when Fontao unbuttoned his jacket and flashed his gun. Vilarchao took the cocaine and told Scaffidi he could continue his efforts to sell it, but stated he wanted no further dealings with DeVarona. DeVarona's active involvement ended at this point.
Vilarchao also met with Scudder on December 16 and told him he would ship the cocaine to New York if Scudder could not sell it in San Antonio. Vilarchao called Scudder on December 17 and told Scudder he was going to Los Angeles.
When Scudder told Romano that Vilarchao and his cocaine were leaving town, Romano lost his temper. Romano spent the next nine days badgering Scudder and threatening his family until Scudder caved in and agreed to help Romano retrieve the cocaine. The government calls this the conspiracy's third episode; DeVarona calls it the third conspiracy.
Scudder contacted Vilarchao on December 26, 1985 and told him Romano had a ready buyer for the ten kilograms. Vilarchao invited Scudder to come to Miami to discuss the deal; he told Scudder in Miami that he would sell the cocaine to Scudder for $25,000 per kilogram. After returning to San Antonio and conferring with Romano, Scudder called one of Vilarchao's...
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