U.S. v. Fuentes-Coba

• Decision Date: 13 August 1984
• Docket Number: No. 83-5011,D,FUENTES-COB,83-5011
• Citation: 738 F.2d 1191
• Parties: 16 Fed. R. Evid. Serv. 50 UNITED STATES of America, Plaintiff-Appellee, v. Fernandoefendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1191

738 F.2d 1191

16 Fed. R. Evid. Serv. 50

UNITED STATES of America, Plaintiff-Appellee, v. Fernando FUENTES-COBA, Defendant-Appellant.

No. 83-5011.

United States Court of Appeals Eleventh Circuit.

Aug. 13, 1984.

McMaster & Forman, P.A., James D. McMaster, Miami, Fla., Randy Frances Kandel, Shereff, Friedman, Hoffman & Goodman, New York City, for defendant-appellant.

Stanley Marcus, U.S. Atty., Paul A. DiPaola, Linda Collins-Hertz, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

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

Before HENDERSON and CLARK, Circuit Judges, and ATKINS ^*, District Judge.

ALBERT J. HENDERSON, Circuit Judge:

Fernando Fuentes-Coba appeals his jury conviction in the United States District Court for the Southern District of Florida on a charge of conspiracy to violate the Trading with the Enemy Act and the Cuban Assets Control Regulations, pursuant to 18 U.S.C. Sec. 371, 50 U.S.C. Appendix Sec. 5(b) and 31 C.F.R. Sec. 515.201.

The Cuban Asset Control Regulations, 31 C.F.R. Sec. 515.201 et seq. ("Regulations"), were promulgated in 1963 pursuant to the Trading with the Enemy Act of 1917 ("Act"). ¹ The Regulations prohibit all commercial interchange with Cuba or Cuban nationals, with specific exemptions as set out in the Regulations.

In 1977, certain restrictions on the previous policy of prohibiting free travel by Americans to Cuba were removed by President Carter. Although the Cuban trade embargo remained firmly in effect, the Regulations were amended to establish a general authorization for Americans to travel to Cuba and to spend money incident to that travel. The general authorization also allowed American-owned travel agencies to provide travel service and services incident to travel to Americans going to Cuba.

Beginning in March 1979, American Airways Charters, Inc. ("AAC") furnished chartered aircraft services for flights to Cuba to Havanatur, the travel agency exclusively authorized by Cuba to provide tourist services in Cuba. The appellant, Fuentes-Coba, was the president and chief operating officer of AAC.

In the latter part of 1979, the United States Treasury Department's Office of Foreign Assets Control designated Havanatur as a Cuban national company pursuant to Sec. 515.306 of the Regulations. The effect of this designation was to prohibit any transactions between Americans and Havanatur.

According to testimony adduced at the trial, the chief operating officers of Havanatur then formed successor companies in order to continue their operations. Fuentes-Coba met with these officers and discussed strategies to disguise what proved to be a continuing AAC association with the Havanatur principals. The participants specifically discussed the necessity of a license to transport goods to Cuba. Fuentes-Coba stated that he was aware of the licensing requirement.

As part of the dealings with Havanatur, AAC transported several items of contraband into Cuba. Among the items transported were four Pepsi-Cola dispensing machines, communications equipment, office equipment and supplies, numerous quantities of foodstuffs, United States currency, perfume, scuba equipment, mail, auto parts and tires and aircraft parts. Testimony at the trial also revealed that computer equipment had been obtained in the United States and sent to Cuba.

According to the testimony, Fuentes-Coba personally concealed certain of the items in duffel bags before they were loaded on the aircraft. He also often accompanied his company van to the airport in an effort to avoid United States Customs inspection of the goods.

Fuentes-Coba was tried for his role in the shipment of these goods to Cuba, and was convicted of conspiracy. He was sentenced to one year of imprisonment and ordered to pay a fine of ten thousand dollars ($10,000.00). This appeal followed.

I.

Fuentes-Coba filed a pretrial motion for a change of venue contending that adverse publicity made it impossible to impanel an impartial jury in south Florida on issues related to trade with Cuba. The evidence presented in support of the motion consisted of an extensive public opinion survey of potential jurors and an analysis of media coverage of Cuba in the south Florida press conducted by a purported expert on jury prejudice.

A criminal defendant is not constitutionally entitled to a trial by jurors ignorant of issues and events. Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751, 756 (1961). Rather, due process requires only that a jury be seated which can put aside any impressions gained from pretrial publicity and render a fair verdict based exclusively on the evidence presented in court. 366 U.S. at 723, 81 S.Ct. at 1643, 6 L.Ed.2d at 756; Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977); Murphy v. Florida, 421 U.S. 794, 800, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589, 594-95 (1975). In the event of juror exposure to pretrial publicity, a defendant may successfully appeal his conviction only if he is able to demonstrate that actual prejudice resulted from the publicity. Irvin v. Dowd, 366 U.S. at 723, 81 S.Ct. at 1643, 6 L.Ed.2d at 756; United States v. Thompson, 615 F.2d 329, 333 (5th Cir.1980). ²

After reviewing the survey evidence presented by Fuentes-Coba and determining that no prejudice had been demonstrated, the district court conducted a voir dire examination of the jury exploring any potential bias of the jurors. The jurors responded that they could be fair and impartial in the case. Counsel for the appellant also extensively inquired of the veniremen with respect to their feelings about Cuba and Cuba-oriented organizations. Again, no juror expressed concern about the influence of outside factors. Finally, the government interrogated the jurors for possible bias and none responded affirmatively. Thereupon, both the government and the defendant accepted the panel and proceeded with the selection of the jury which heard the case. The defendant did not renew his motion for change of venue.

The thorough inquiry of the jury panel with respect to potential bias was sufficient to safeguard the right of Fuentes-Coba to an impartial trial.

II.

Fuentes-Coba asserts that his conviction cannot stand because his acts were fully authorized under the licensing provisions of the Cuban Foreign Assets Control Regulations, 31 C.F.R. 515.201 et seq., and the Export Administration Regulations, 15 C.F.R. 371 et seq. In the alternative, he argues that even if his activities were technically in excess of the scope of his licensed authority, his conviction should be overturned because the Regulations are so vague and ambiguous that they fail to pass muster under the due process guarantee of the fifth amendment.

Under the broad language of Sec. 515.201, which establishes the general embargo against transactions in which Cuba or Cuban nationals have an interest, a transaction is permitted only if it is exempted under the more specific language of a subsequent regulation. Fuentes-Coba characterizes each of the items he is charged with shipping from this country to Cuba as a specifically exempted good.

He primarily relies on Sec. 515.560, which authorizes transactions incident to arranging or assisting travel to, from or in Cuba, including arranging hotel accommodations, ground transportation, local tours and similar travel activities. He contends that this regulation expressly authorized his exportation of the many items identified at the trial. He claims that all of the items were utilized in the tour operations.

The precedent and practice of this court demands an interpretation of the Act and Regulations with "a common sense regard for regulatory purposes and plain meanings." United States v. Frade, 709 F.2d 1387, 1401 (11th Cir.1983). Applying this standard to the facts before us, we conclude that the appellant's shipping activities went well beyond the Sec. 515.560 exceptions to the Act.

We simply do not agree with the appellant that the shipment of such items as airplane parts, bulk quantities of United States coins, and communications equipment can reasonably be considered as incident to travel, as specified in the Regulations. If we accept the appellant's argument, the exception to the trade embargo would become so broad that the embargo itself would lack substance. We cannot countenance such a claim.

Neither can we embrace the appellant's companion claim that shipment of the majority of the items was authorized by Sec. 515.333 which governs general baggage and gift parcels authorized for transport by Cuban-bound travelers. ³ First, many of the items seized simply fail to fit the description of property normally transported in a traveler's baggage for his or her personal use. Second, the items were not marked as gift parcels, as specifically required by the regulation, and many do not fall into the property categories authorized in the regulation.

Finally, we find no grievous ambiguity in the Regulations themselves. They are clear in scope and adequately delineate the restrictions in existence. There is no merit in the appellant's due process challenge.

III.

Guilt under the Act and its Regulations mandates a finding of specific intent--that is, the government must prove that the regulatory provisions were both "actually known" and "deliberately violated" by the defendant. United States v. Frade, 709 F.2d 1387, 1392 (citations omitted). Fuentes-Coba maintains that there was no evidence of specific intent and that the jury instruction of the district court was deficient in that it did not enumerate and particularize these elements and issues.

In reviewing the sufficiency of the evidence to support a guilty verdict, the evidence, and all reasonable inferences therefrom, is viewed in the light most favorable to the government. Hamling v. United States, 418 U.S. 87, 124, 94 S.Ct. 2887, 2911, 41 L.Ed.2d 590, 624-25 (1974); Glasser v. United States, 315 U.S....