U.S. v. Garcia-Rosa, GARCIA-ROS

Citation876 F.2d 209
Decision Date02 November 1988
Docket Number87-1857-87-1859,RIVERA-FELICIANO,SOTO-ALVAREZ,D,CARRERA-PEREZ,RIVERA-ORTI,GARCIA-ROS,Nos. 87-1625-87-1627,s. 87-1625-87-1627
Parties, 28 Fed. R. Evid. Serv. 445 UNITED STATES of America, Appellee, v. Blancaefendant, Appellant. UNITED STATES of America, Appellee, v. Pedro, a/k/a Junior, Defendant, Appellant. UNITED STATES of America, Appellee, v. Angel, a/k/a Junior Azuquita, Defendant, Appellant. UNITED STATES of America, Appellee, v. Victor, a/k/a Paye, Defendant, Appellant. UNITED STATES of America, Appellee, v. Eduardoefendant, Appellant. UNITED STATES of America, Appellee, v. Jose HEREDIA NIEVES, a/k/a Checo El Perro, Defendant, Appellant. . Heard
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Antonio Bauza Torres, Guaynabo, P.R., by Appointment of the Court, for appellant Blanca Garcia-Rosa.

Harry R. Segarra Arroyo, Hato Rey, P.R., by Appointment of the Court, for appellant Pedro Soto-Alvarez.

Terrance J. McCarthy, by Appointment of the Court, for appellant Angel Rivera-Feliciano.

Jeffrey M. Williams, Santurce, P.R., for appellant Victor Carrera-Perez.

Blas C. Herrero, Jr., Hato Rey, P.R., for appellant Eduardo Rivera-Ortiz.

Jose A. Fuentes Agostini with whom Law Offices of Troncoso & Fuentes Agostini, San Juan, P.R., was on brief for appellant Jose Heredia Nieves.

Mervyn Hamburg, Dept. of Justice, Washington, D.C., with whom Daniel F. Lopez-Romo, U.S. Atty., Hato Rey, P.R., was on brief for appellee.

Before COFFIN, Circuit Judge, WISDOM, * Senior Circuit Judge, and TORRUELLA, Circuit Judge.

TORRUELLA, Circuit Judge.

The appellants dispute their criminal convictions stemming from two shipments of drugs from Colombia to Puerto Rico. The basic facts, viewed in the light most favorable to the government, see United States v. Sturm, 870 F.2d 769, 770 (1st Cir.1989), are as follows.

The First Shipment

Early in 1984, appellant Pedro Soto Alvarez ("Soto") told his friend Jose Panzardi Alvarez ("Panzardi"), a major drug trafficker, that he had a connection in Venezuela who could supply them with heroin. Panzardi told Soto that he had a supplier in Colombia, but no contacts in Venezuela. Panzardi agreed to contact his Colombian source, Jacobo Mendez Campo ("Mendez"), to determine whether Mendez could transport the heroin from Venezuela to Colombia, from where Panzardi would import it into the United States.

Mendez suggested a plan, which Panzardi approved and revealed to Soto. Panzardi and Soto then flew to Venezuela, bought the heroin, and handed it over to the couriers who were to smuggle it into Colombia. Panzardi and Soto then returned to San Juan and began to devise a plan to smuggle the heroin and an additional 7 kilograms of cocaine supplied by Mendez from Colombia to Puerto Rico. Panzardi ultimately hired a pilot to fly to a clandestine airfield in Colombia to pick up the drug shipment and then to drop it in the sea off the coast of Puerto Rico, where Panzardi and Soto would be waiting in a boat to pick it up.

The plan was successfully executed in March 1984. The shipment was unpacked in Soto's apartment in San Juan. Panzardi, Soto and appellant Angel Rivera Feliciano diluted the cocaine and sold it. Soto and Rivera Feliciano diluted and sold the heroin, but Soto failed to make full payment to Panzardi for it.

The Second Shipment

In January 1985, Soto's Venezuelan supplier was ready to enter into another transaction. Because Soto had proven unreliable during the prior transaction, the supplier elected to deal directly with Panzardi. Panzardi flew to Caracas and agreed to buy two kilograms of heroin from him at a price of $100,000 per kilogram. Later, Panzardi flew to Colombia and arranged with Mendez to smuggle the heroin into Colombia. During that meeting, Panzardi agreed to purchase three kilograms of cocaine from Mendez and half a kilogram of hydromorphine from an associate of Mendez.

Panzardi was short of funds at this time. When he returned to Puerto Rico, he told appellant Victor Carrera Perez ("Carrera") about his monetary problems. A day or so later, Carrera informed Panzardi that he had located an individual, appellant Eduardo Rivera Ortiz, who was willing to loan him the money he needed to finance the proposed drug transaction. Rivera Ortiz agreed to loan Panzardi $20,000 in cash in exchange for one kilogram of cocaine. As collateral, Panzardi agreed to leave his Porsche automobile with Rivera Ortiz.

Panzardi used the funds to purchase an airplane in Florida. He then hired two pilots to fly to Colombia, pick up the drug shipment, and drop it in the sea off the coast of Puerto Rico, where Panzardi would be waiting in a boat to pick it up. This operation was duly executed in April 1985 and the drugs were stored in the Caguas residence of Cesar Castro Gomez ("Castro"), an associate of Panzardi.

The appellants then began to distribute the shipment. 1 Panzardi diluted one kilogram of cocaine and gave it to Rivera Ortiz to regain possession of his Porsche. Rivera Ortiz subsequently complained about the quality of the cocaine; Panzardi took him to Castro's house where he was allowed to choose another kilogram of cocaine.

One of Panzardi's customers was appellant Jose Heredia Nieves ("Heredia"). Panzardi initially gave Heredia a sample for testing. A few days later, after testing it, Heredia agreed to buy an eighth of a kilogram of heroin for $50,000. Heredia made two additional purchases, each of one-eighth of a kilogram of heroin. He returned his last purchase to Panzardi because he was dissatisfied with its quality.

Panzardi contacted Rivera Feliciano to help him distribute the shipment. Rivera Feliciano was given two ounces of cocaine to sell. Panzardi and Rivera Feliciano also established a fixed location, a tavern in Bayamon, which was used as a front for retail sales of heroin. To achieve street-level dosage, the heroin was diluted with a non-narcotic substance and then divided into smaller quantities for retail distribution. This processing took place at various locations, including Panzardi's house, Rivera Feliciano's house, and the home of appellant Blanca Garcia Rosa ("Garcia"), Rivera Feliciano's girl friend. At each location, processing of the heroin was performed on multiple occasions.

Carrera also assisted Panzardi in distributing the shipment. Panzardi agreed to pay Carrera a $1,000 commission for each ounce of cocaine sold by him. On April 16, Carrera accompanied Panzardi on a sales visit to two potential customers that he had suggested to Panzardi. Despite some interest on the part of each customer, no sale was consummated. Thereafter, Carrera met with Panzardi on other occasions to discuss potential customers, but no sales were ever completed because the customers wanted to make the purchases on credit.

Unfortunately for Panzardi, one of his associates, Avelino Cabrera Rios ("Cabrera"), was an informant. On April 18, 1985, ten days after the second shipment of drugs reached Puerto Rico, Panzardi was arrested. At about that time, appellants Garcia, Soto, and Rivera Feliciano were also arrested. They were freed on bail and continued to sell drugs. Sixteen months later, in August 1986, appellants Carrera, Rivera Ortiz, and Heredia were arrested. Cabrera was murdered on November 9, 1987. Panzardi and his girl friend Gloria Nieves Baez ("Nieves") pleaded guilty to conspiring to violate Cabrera's civil rights by killing him, in violation of 18 U.S.C Sec. 241. 2 They agreed to testify against the members of their own organization.

These six appellants in this case, along with twenty five others, were charged in a twelve count indictment with various combinations of the following offenses:

Count 1: conspiracy to possess heroin and cocaine with intent to distribute, in violation of 21 U.S.C. Secs. 841(a)(1) & 846

Counts 2 & 8: importation of heroin, in violation of 21 U.S.C. Secs. 952 & 960, and 18 U.S.C. Sec. 2

Counts 3 & 9: importation of cocaine, in violation of 21 U.S.C. Secs. 952 & 960 and 18 U.S.C. Sec. 2

Counts 4 & 11: possession of heroin with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2

Counts 5 & 12: possession of cocaine with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2

Counts 6 & 7: travel in interstate and foreign commerce to facilitate the carrying on of unlawful activity, in violation of 18 U.S.C. Sec. 1952

Count 10: importation of hydromorphine, in violation of 21 U.S.C. Secs. 952 & 960 and 18 U.S.C. Sec. 2

These six appellants were tried jointly with five other defendants. Panzardi's testimony was the heart of the government's case. Each defendant was convicted on all the counts in which he or she was named. The following sentences were imposed:

Rivera Ortiz (counts 1, 8-12)--imprisonment for five years on count 1; concurrent terms of imprisonment for 13 years on counts 8, 9, and 10, to run consecutively to the sentence imposed on count 1; concurrent 13-year terms on counts 11 and 12, to run concurrently with the sentences on the other counts; fines of $25,000 on count 1, $20,000 each on counts 8-10 and $10,000 each on counts 11 and 12.

Heredia (counts 1 and 11)--consecutive terms of imprisonment of 20 years on each count; fines of $50,000 and $25,000.

Garcia (counts 1 and 11)--imprisonment for six years on each count, the sentences to run concurrently.

Soto (counts 1-6)--imprisonment for 15 years on count 1; concurrent terms of imprisonment for 10 years on counts 2-5, to run consecutively to the sentence imposed on count 1; imprisonment for 5 years on count 6, to run consecutively to punishment on the other counts; fines of $25,000 on count 1, $15,000 on counts 2 and 3, and $10,000 on counts 4 and 5.

Rivera Feliciano (counts 1, 5, 11, 12)--concurrent terms of imprisonment for 15 years on each count; $10,000 fine on count 5.

Carrera (counts 1 and 11)--consecutive terms of imprisonment for five and ten...

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