U.S. v. Jimenez-Rodriguez
| Decision Date | 01 December 1995 |
| Docket Number | JIMENEZ-RODRIGUE,D,Nos. 94-1968,94-2072,REYES-VEJERAN,s. 94-1968 |
| Citation | 70 F.3d 1253,1995 WL 709639 |
| Parties | NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be cited only in related cases. UNITED STATES of America, Appellee, v. Wilfredoefendant, Appellant. UNITED STATES of America, Appellee, v. Franciscoefendant, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
Rafael F. Castro Lang for appellant Francisco Reyes-Vejerano.
Rachel Brill with whom Carlos V. Garcia Gutierrez was on brief for appellant Wilfredo Jimenez-Rodriguez.
Sidney M. Glazer, Senior Appellate Counsel, Criminal Division, Department of Justice, with whom Guillermo Gil, United States Attorney, was on brief for the United States.
Before Selya, Cyr and Boudin, Circuit Judges.
In January 1994, a federal grand jury indicted three men on drug-related offenses: Francisco Reyes Vejerano, Wilfredo Jimenez Rodriguez and Jaime Ocampo Ochoa. Ocampo pleaded guilty to one count, and his sentence was subsequently affirmed by this court in United States v. Ocampo, No. 94-1897, 1st Cir. May 8, 1995. Reyes and Jimenez pled not guilty and were tried together in April 1994. Both were convicted, and they now appeal.
Reyes and Jimenez were each convicted on two related conspiracy charges, one to distribute heroin, 21 U.S.C. Secs. 841, 846, and the other to make false statements in an application for a passport, 18 U.S.C. Sec. 1542, in order to secure a false travel document for a drug courier. Reyes was also convicted of three counts of possession with intent to distribute heroin, 21 U.S.C. Sec. 841, for specific drug transactions related to the conspiracy. Reyes was sentenced to 188 months' imprisonment and a $50,000 fine, and Jimenez to a 33-month term of imprisonment.
On this appeal, Reyes and Jimenez have filed over 100 pages of briefs, together making several dozen claims of error. Most of these claims involve matters largely within the scope of the trial court's discretion or claims where no proper objection was taken. We direct most of our discussion to those few issues that seem to us fair ground for argument under the applicable standards of review and, in closing, illustrate why the balance of the claims do not merit detailed discussion.
1. Although the government offered ten witnesses, the brunt of its case rested on the testimony of Carmen Toledo Gonzalez who, by her own admission, had participated in both of the conspiracies and engaged in several of the drug transactions and the attempted passport fraud. Her evidence was bolstered by that of her boyfriend (Jeffrey Martinez) who also participated in certain of the events. Their testimony, with some gaps filled in by other witnesses, permitted the jury to conclude that Reyes and Ocampo were responsible for several efforts to import heroin into Puerto Rico.
As to Reyes, the details need not be recounted since he does not deny that the evidence against him was adequate to convict. Crediting the government witnesses, the case against Reyes was a strong one. Toledo herself made two trips, one in October 1992 to Colombia and one in 1993 (apparently in June) to Panama; and she helped recruit two other individuals for separate trips, both to Colombia in 1993. These trips took place after consultation with Reyes, or so the jury was entitled to find. Some drugs were successfully imported, one effort resulted in an airport arrest, and one fell through because the drugs were not delivered to the courier.
By contrast, Jimenez--whose role was far more limited--argues that the government failed to prove the existence of a single conspiracy to possess heroin as charged in the indictment and that in any event it failed to show that Jimenez joined such a conspiracy. The evidence certainly permitted the jury to find that Reyes, Ocampo and Toledo were members of one drug trafficking conspiracy. The finding was supported by similarities in the participants, methods, geographic locations, and the like. See United States v. Morrow, 39 F.3d 1228, 1233-34 (1st Cir.1994); United States v. Cloutier, 966 F.2d 24, 28 (1st Cir.1992).
The more difficult question is whether Jimenez, who participated in only one of the trips, could fairly be found to have joined the charged conspiracy, or any drug conspiracy at all. The two issues are significantly different, and we address the latter one first. Taking the evidence in the light most favorable to the verdict, the jury could reasonably have found that the following occurred:
After Toledo's passport was seized by police in an unrelated incident, Reyes and Ocampo gave Toledo identification papers to help her obtain a new passport under the name of Sarah Luz Velazquez Santiago. When Martinez declined to accompany Toledo on another trip, Toledo persuaded Jimenez to act as her escort, telling him that she was going to bring in narcotics and that she was asking him to help. Before departing, Toledo applied for a passport in the name of Sarah Luz Velazquez; Jimenez accompanied her to the passport office; and he there signed a document identifying Toledo as Sarah Luz Velazquez. No passport was obtained, and Toledo changed the destination from Colombia to Panama.
Jimenez then accompanied Toledo to Panama. He had been selected because he was a book importer, and it was thought that his legitimate business travels would provide cover for the scheme. There was some evidence that Jimenez sought to distance himself from the importation efforts, but other evidence that he requested (unsuccessfully) a third of "what was coming" and that, for the return trip to Puerto Rico, Jimenez made arrangements to make it "look like it was a [trip] having to do with books." Toledo alone collected the drugs in Panama and carried them back to Puerto Rico in the company of Jimenez.
Jimenez' assistance was certainly limited, and it was open to him to argue that his role was too equivocal to justify conviction. But the jury was entitled to find that the facts were as Toledo represented them. Further, an illegal agreement need not be explicit, Ianelli v. United States, 420 U.S. 770, 777 n. 10 (1975); United States v. Ruiz, 905 F.2d 499, 506 (1st Cir.1990), and a rational jury could conclude that Jimenez' participation was sufficient to make out an agreement. Jimenez was not helped by the fact that the evidence clearly showed his participation in the ancillary conspiracy to secure a passport based on false documents.
Assuming that the evidence allowed the jury to convict Jimenez of the heroin conspiracy, the question remains whether he joined the overarching conspiracy to import drugs as charged in the indictment or only a smaller encompassed conspiracy related to the specific Panama transaction. A conspirator can be part of a larger conspiracy without knowledge of all its details and dimensions. Blumenthal v. United States, 332 U.S. 539, 557 (1947); United States v. Cruz, 981 F.2d 613, 617 (1st Cir.1992). Still, on the present facts there is a reasonable argument (which we need not resolve) that Jimenez, in addition to the passport conspiracy, was at worst knowingly engaged only in a single narrow conspiracy to import drugs on one occasion.
Nevertheless, the evidence (as already noted) was sufficient to find that Jimenez conspired to possess heroin with intent to distribute in connection with the Panama episode; and the prosecution made clear at trial that he had not yet joined the conspiracy at the time of the prior acts of importation. Jimenez was sentenced based only on the 250 grams of heroin imported with his assistance; in fact, the trial court generously based Jimenez' sentence on one-third of that amount, in view of the testimony that he had asked to be given one-third of the drugs Toledo was to procure. Thus, Jimenez has not demonstrated prejudice as a result of the possible variance between the scope of the broader...
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Reyes-Vejerano v. U.S., CIV. 97-1652(HL).
...and on December 1, 1995, the First Circuit affirmed his conviction in an unpublished opinion. See United States v. Jimenez-Rodriguez, 70 F.3d 1253, 1995 WL 709639 (1st Cir. 1995). Reyes then filed the present petition. He claims that he was denied his Sixth Amendment right to effective assi......