U.S. v. Gomez-Pabon

• Decision Date: 04 June 1990
• Docket Number: D,CASANOVA-OTER,BENITEZ-GUZMAN,TORRES-MELENDEZ,DELFIN-TORRES,Nos. 88-1613,GOMEZ-PABO,s. 88-1613
• Citation: 911 F.2d 847
• Parties: 31 Fed. R. Evid. Serv. 11 UNITED STATES, Appellee, v. Luis E.efendant, Appellant. UNITED STATES, Appellee, v. Wilfredo, a/k/a "La Bruja," Defendant, Appellant. UNITED STATES, Appellee, v. Edwin, a/k/a "Wichi," Defendant, Appellant. UNITED STATES, Appellee, v. Luisefendant, Appellant. UNITED STATES, Appellee, v. Carlos, a/k/a "Charlie Guzman," Defendant, Appellant. to 88-1617. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 847

911 F.2d 847

31 Fed. R. Evid. Serv. 11

UNITED STATES, Appellee, v. Luis E. GOMEZ-PABON, Defendant, Appellant.

UNITED STATES, Appellee, v. Wilfredo TORRES-MELENDEZ, a/k/a "La Bruja," Defendant, Appellant.

UNITED STATES, Appellee, v. Edwin DELFIN-TORRES, a/k/a "Wichi," Defendant, Appellant.

UNITED STATES, Appellee, v. Luis CASANOVA-OTERO, Defendant, Appellant.

UNITED STATES, Appellee, v. Carlos BENITEZ-GUZMAN, a/k/a "Charlie Guzman," Defendant, Appellant.

Nos. 88-1613 to 88-1617.

United States Court of Appeals, First Circuit.

Heard June 4, 1990.

Decided Aug. 20, 1990.

Joseph C. Laws, Jr., for appellant Gomez-Pabon.

Charles G. White, for appellant Torres-Melendez.

Benito I. Rodriguez-Masso, for appellant Delfin-Torres.

Ludwig Ortiz-Belaval, for appellant Casanova-Otero.

Roxana C. Matienzo Carrion, for appellant Benitez-Guzman.

Thomas E. Booth, Appellate Section, Crim. Div., Dept. of Justice, with whom Daniel Lopez-Romo, U.S. Atty., and Jorge Vega-Pacheco, Asst. U.S. Atty., were on brief, for U.S.

Before SELYA, Circuit Judge, BOWNES, Senior Circuit Judge, and SOUTER, ^* Circuit Judge.

BOWNES, Senior Circuit Judge.

These are consolidated appeals from convictions on jury verdicts rendered after a nine-day trial. The defendants, Luis Gomez-Pabon, Wilfredo Torres-Melendez, Edwin Delfin-Torres, Luis Casanova-Otero and Carlos Benitez-Guzman, were charged with conspiracy to import cocaine in violation of 21 U.S.C. Secs. 952 and 963 (Count Three). Gomez, Torres, and Delfin also were charged with conspiracy to possess with intent to distribute marijuana, in violation of 21 U.S.C. Secs. 841(a) and 846 (Count One), and conspiracy to import marijuana, in violation of 21 U.S.C. Secs. 952(a) and 963 (Count Two). Each having been convicted and sentenced, defendants now appeal on a number of grounds from their convictions.

I. BACKGROUND

The charges contained in the indictment arose from two unsuccessful operations to import narcotics into Puerto Rico from Colombia. The first operation consisted of an effort, participated in by all five defendants, to hire a pilot to fly cocaine and marijuana from Colombia into Puerto Rico. Unhappily for the defendants, the pilot they recruited, William Martinez-Robles, was a government informant whose subsequent tip to the Drug Enforcement Administration ("DEA") resulted in the seizure of the defendants' airplane. Undeterred by the failure of their first operation and unaware of Martinez's role as an informant, Gomez, Torres and Delfin then hired a second pilot to fly to Colombia--this time solely to obtain marijuana. The second pilot, chosen on the recommendation of Martinez, was an undercover DEA agent, and Gomez, Torres and Delfin were arrested while in the act of paying the pilot for his services. These arrests were followed by the arrests of Benitez and Casanova for their role in the first operation. The five defendants were subsequently indicted and convicted, leading to these appeals.

For the most part, the issues raised by defendants on appeal pertain to the first importation scheme. Accordingly, we turn to a more detailed exposition of the facts underlying this operation. As required, we present the facts in the light most favorable to the government.

Much of the evidence presented by the government with respect to the cocaine importation scheme consisted of the testimony of the government's informant, Martinez-Robles. Martinez testified that he initially was approached by defendant Benitez in February 1987 and informed that a certain group in Puerto Rico was looking for a pilot to fly drugs into Puerto Rico from Colombia. When Martinez indicated his possible interest in the venture, Benitez arranged a March 3 meeting between Martinez and defendant Gomez, the group's leader, at Benitez's apartment. At this meeting, attended by Martinez, Benitez and Gomez, Gomez offered Martinez $100,000 to fly a load of cocaine and marijuana from Colombia to Puerto Rico in Gomez's airplane. Martinez insisted on test-flying the plane first, which he did on March 4 and March 5. He was accompanied on these flights by his girlfriend Mara Baez, who was also a government informant, and by Gomez.

On March 11, Martinez attended another meeting with Gomez. During this meeting, which was attended by the defendant Torres as well, Gomez informed Martinez that the flight to Colombia was scheduled for March 13 and that the defendant Delfin would accompany him on the trip. Gomez, Torres, and Martinez then inspected a road in Puerto Rico that had been designated as the landing area for Martinez upon his return from Colombia.

The following day, March 12, Martinez, Gomez and Baez test-flew Gomez's airplane for a third time to inspect the designated landing area from the air. The three subsequently traveled to Delfin's house, where they discussed the flight with Delfin and agreed to meet the next morning to travel to the Arecibo Airport, where Gomez's airplane was located.

In accordance with these plans, Gomez, Torres, Delfin, Martinez and Baez met at Delfin's house the following morning, March 13. Gomez gave Delfin money and gifts to bring to the Colombian cohorts. The group then traveled to the airport. At the airport, Martinez observed that the rear seats had been removed from Gomez's airplane to make room for the narcotics and that the plane was fully fueled. Gomez earlier had told Martinez that a man named Casanova would take care of these duties, and also would not log the plane's departure from the airport. Martinez and Delfin then boarded the plane. Before they could take off, however, federal agents approached the plane (having been tipped off by Martinez) and took Martinez away purportedly for questioning, thereby frustrating the mission.

Based on the above facts, as well as additional evidence that we discuss later, the jury convicted Gomez, Torres, Delfin, Benitez and Casanova of conspiracy to import cocaine (Count Three). Gomez, Torres and Delfin also were convicted of conspiracy to import marijuana (Count Two) and conspiracy to possess with intent to distribute marijuana (Count One). The convictions on Counts One and Two were based on the actions of Gomez, Torres and Delfin in hiring a second pilot to fly to Colombia after the failure of the first operation. Defendants raise several challenges to these convictions. We consider each of their arguments in turn.

II. JURY SELECTION

Defendants' first contention on appeal is that their convictions must be reversed because a United States Magistrate presided over jury selection in their case. Defendants rest their argument on the Supreme Court's recent decision in Gomez v. United States, --- U.S. ----, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989), which held that the Federal Magistrates Act does not authorize district courts to delegate jury selection in felony trials to magistrates. Unlike in Gomez, however, the defendants here failed to object at trial to the jury selection procedure. Whether or not this failure to object prevents defendants from successfully raising a Gomez claim on appeal is an issue that is currently before both the Supreme Court, see United States v. France, 886 F.2d 223 (9th Cir.1989), cert. granted, --- U.S. ----, 110 S.Ct. 1921, 109 L.Ed.2d 285 (1990), and this court sitting en banc. See United States v. Lopez-Pena, 890 F.2d 490 (1st Cir.1989) (opinion withdrawn pending reconsideration en banc ). ¹ In light of the pending appeals, we decline to address the jury selection issue here. We preserve the question as an open one and retain appellate jurisdiction. We shall address the matter after the issue has been decided in one or both of the cases just mentioned.

III. SUFFICIENCY OF THE EVIDENCE

Defendants next challenge the sufficiency of the evidence to support the jury's conviction of each of them on Count Three's charge of conspiracy to import cocaine. In reviewing this challenge, we must view the evidence "in the light most favorable to the government, drawing all legitimate inferences and resolving all credibility determinations in favor of the verdict." United States v. Angiulo, 897 F.2d 1169, 1197 (1st Cir.1990). The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See, e.g., United States v. Aponte-Suarez, 905 F.2d 483, 489 (1st Cir.1990); United States v. Bernal, 884 F.2d 1518, 1523 (1st Cir.1989).

To prove the elements of the crime of conspiracy, the government must show the existence of a conspiracy, the defendant's knowledge of the conspiracy, and the defendant's voluntary participation in the conspiracy. See, e.g., United States v. Aponte-Suarez, 905 F.2d at 489; United States v. Garcia-Rosa, 876 F.2d 209, 223 (1st Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 742, 107 L.Ed.2d 760 (1990). More specifically, to establish that a defendant belonged to and participated in a conspiracy, the government must prove two kinds of intent: "intent to agree and intent to commit the substantive offense." United States v. Rivera-Santiago, 872 F.2d 1073, 1079 (1st Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 3227, 106 L.Ed.2d 576 (1989); see also United States v. Alemany Rivera, 781 F.2d 229, 234 (1st Cir.1985), cert. denied, 475 U.S. 1086, 106 S.Ct. 1469, 89 L.Ed.2d 725 (1986). Such proof may consist of circumstantial evidence, including inferences from surrounding circumstances, such as acts committed by the defendant that furthered the conspiracy's purposes. See, e.g., United States v. Paradis, 802 F.2d 553, 559 (1st Cir.1986); United States v. Alemany Rivera, 781 F.2d at 234. The government need not prove that a co-conspirator knew all of the details or participated in all of the objectives of the plan. See, e.g., United States v. Aponte-Suarez, 905 F.2d at 489-90; United States v. Rivera-Santiago, 872 F.2d at 1079. Mere presence at the scene of the crime, however, does not establish conspiracy to participate in that crime. ...