U.S. v. Freeman, 94-60811
| Decision Date | 29 February 1996 |
| Docket Number | No. 94-60811,94-60811 |
| Citation | 77 F.3d 812 |
| Parties | 26 Envtl. L. Rep. 20,946 UNITED STATES of America, Plaintiff-Appellee, v. Noemi Duarte FREEMAN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Edward L. Ciccone, Richard G. Sherman, Albert Pena, III, Corpus Christi, TX, for appellant.
Paula C. Offenhauser, Lawrence D. Finder, U.S. Attys., Brownsville, TX, Elinor Colburn, Evelyn S. Ying, John A. Bryson, U.S. Dept. of Justice, Env. Div. App. Sec., Washington, DC, for appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before POLITZ, Chief Judge, and HILL * and DeMOSS, Circuit Judges.
Noemi Freeman was convicted of violating 18 U.S.C. § 371 by conspiring to illegally import Amazon parrots from Mexico to the United States of America; 18 U.S.C. § 545 by receiving the parrots; and 16 U.S.C. § 1538(c)(1) by possessing the parrots. We are asked to review the sufficiency of the evidence supporting Freeman's convictions, and to review the district court's denial of her motion for a new trial based upon newly discovered evidence. For the following reasons, we affirm her convictions and sentence.
Noemi Freeman owns and operates a large aviary in Burleson, Texas. On many occasions, between 1990 and 1993, she purchased baby yellow-naped Amazon parrots from Jesus Maldonado and his common-law wife Irene Vasquez who run an aviary in Sandia, Texas. For many years, Maldonado and Vasquez used the aviary to conceal the fact that they were smuggling Amazon parrots from Mexico and Central America into the United States. 1
Maldonado's main source for the birds was Salvador Salazar, 2 who resided in Mexico. Maldonado's cousin, Teodoro Garcia, drove On February 7, 1992, Maldonado and Garcia were stopped in Austin for a traffic violation. The police found and seized seventy baby yellow-naped parrots in the vehicle. Some time later, Maldonado and Garcia were arrested and charged in the Western District of Texas with smuggling birds. After Maldonado refused to employ a lawyer for Garcia, Garcia pled guilty to a misdemeanor and began to cooperate with the government. Garcia testified against Maldonado at his trial, and Maldonado was convicted.
for Maldonado on "hundreds" of his deliveries of smuggled birds. Shortly before February 7, 1992, Maldonado and Salazar smuggled some one hundred Amazon parrots into the United States
Additional investigation by the Customs Service, including a search of Freeman's residence on August 26, 1993, along with information provided by Garcia, revealed a multi-year conspiracy between Maldonado and a dozen other individuals, including Freeman and her common-law husband, Anderson, to smuggle and distribute hundreds of Amazon parrots from Mexico and Central America. On April 14, 1994, the grand jury for the Southern District of Texas indicted Maldonado, his wife Vasquez, Freeman and Anderson, 3 and ten other persons on conspiracy charges and related substantive offenses. That is the case before us.
The indictment alleges that Freeman participated in the conspiracy to illegally import Amazon parrots over a period of time (Count 1), and that she received and possessed illegally imported Amazon parrots (Counts 8 and 9).
Maldonado, Vasquez, and five other defendants pled guilty to some or all of the charges against them. At Freeman's trial, the following evidence was admitted.
Garcia testified that he and Maldonado delivered Amazon parrots to Freeman on numerous occasions. He related a conversation he heard on one delivery when Maldonado told Freeman that the birds were tired because "they had come a long way." When they were stopped on February 7, 1992, Maldonado told the police that he and Garcia were going to Dallas/Ft. Worth. Freeman resides in Burleson, a Dallas suburb. Garcia testified that the parrots seized on February 7, 1992, were intended for delivery to Freeman.
Garcia testified that when he and Maldonado were released by the police later that day, Maldonado went directly across the street to a pay phone and called his wife. According to Garcia, Maldonado told Vasquez to get another shipment ready to fill the Freeman order for baby Amazon parrots. Maldonado also spoke from the pay phone with Salazar and requested that Salazar send more parrots. Although Maldonado denied he made the calls, Salazar's testimony corroborated Garcia's.
Garcia further testified that, on the drive back to Sandia, Maldonado asked Garcia to drive the car on the re-delivery of the parrots to Freeman. Garcia declined. Some time later, Maldonado told Garcia that he (Maldonado) had completed the delivery to Freeman two or three days after February 7.
Telephone records reveal numerous phone calls between the Maldonado and Freeman residences, including two hours of phone calls on February 7 and 8. 4 On March 1, immediately after government agents conducted a search of Maldonado's aviary, there were seven minutes of collect calls placed from the pay phone nearest Maldonado's residence to the Freeman residence. On or about the next day, Freeman received a fax from Vasquez containing the search warrant executed upon the Maldonado residence and the probable cause affidavit for the search. This affidavit outlined the evidence of smuggling which supported the warrant, i.e., the February 7 seizure of baby parrots which Garcia testified were intended for Freeman. Freeman testified she requested the fax of the warrant because she was merely "curious" about the search.
On June 17, 1992, Freeman received another fax from Vasquez in which Vasquez told Freeman:
I think he'll [Jesse] be okay if he can get his day in court. I don't know what happened that scared you so. We don't blame you but we want you to know we won't implicate you in anything. The only reason we talked, you were teaching me about incubation. Maybe someday when the whole thing blows over we can do some business, but don't worry, Jesse will never say anything about anyone.
Both of these faxes were found in Freeman's residence during the August 26, 1993 search, more than a year after she received them.
Bank records reveal checks dated from 1990 to 1993, made out by Freeman to Maldonado, or made out to "cash" with references to Maldonado for approximately $97,000. Additional checks, made out to cash by Freeman between 1990 and 1993, without an explicit reference to Maldonado, totalled about $250,000.
Although the government searched Freeman's office for five to six hours when they executed the search warrant at Freeman's residence without finding any invoices for these checks, Freeman produced at trial what she claimed were invoices covering many of the checks. She testified she had found them in her desk drawer (which Customs agents had searched) and that they represented transactions for which cash was needed. However, further examination revealed that the "invoices" reflected transactions that had to have occurred before the dates the checks were stamped by the bank as actually cashed. Thus, the cash represented by those checks could not have been used for those supposedly invoiced cash transactions.
According to expert testimony, the deliveries of smuggled birds were made in an unprofessional manner, with the birds crowded together. Often the birds were sick with Exotic Newcastle Disease found predominantly in birds from the wild. 5 The disease is not present in domestic birds. The smuggled baby parrots were always delivered in the breeding and hatching season of birds in the wild. They were delivered at odd times of the day.
Maldonado testified that Freeman continued to purchase baby parrots from him after February 7 (although not the specific parrots at issue in Counts 8 and 9). Freeman testified she purchased only adult birds from him after that date.
The jury convicted Freeman of conspiring to illegally import Amazon parrots into the United States (Count 1), and also of knowingly receiving and possessing illegally imported Amazon parrots (Counts 8 and 9). The district judge denied Freeman's motions for a judgment of acquittal ruling that there was sufficient evidence to send the case to the jury, and that the jury convicted her. He sentenced Freeman to twenty-seven months in prison.
We review the sufficiency of the evidence de novo. United States v. Restrepo, 994 F.2d 173 (5th Cir.1993). We review for an abuse of discretion the district court's denial of the motion for a new trial. United States v. Simmons, 714 F.2d 29, 31 (5th Cir.1983).
Freeman admitted that she bought baby yellow-naped parrots from Maldonado on several occasions over the years. Maldonado admitted that the parrots were smuggled. The checks confirm a long-standing business relationship between them.
Freeman is guilty of the conspiracy charge, therefore, if she knew the birds were smuggled. The evidence of her guilty knowledge includes the manner and timing of the delivery of the birds. The expert testimony was that the manner of these deliveries was not in the normal course of business. The babies were always delivered during the hatching season of yellow-napes in the wild. We may infer from this evidence that a Additionally, many of the birds were sick with a disease that is not found in domestically-bred birds. The testimony was that Freeman was an experienced bird breeder and dealer, who would have known all of this and who was well-aware that many yellow-napes sold in this country are smuggled. Finally, Maldonado testified that Freeman continued to purchase "baby" yellow-napes after the seizure of the birds on February 7, when Freeman had actual knowledge that Maldonado had been charged with smuggling baby yellow-napes.
knowledgeable purchaser should have been suspicious.
This evidence is sufficient to support the jury's determination that Freeman...
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