U.S. v. Lopez, 88-5290

Decision Date25 April 1990
Docket NumberNo. 88-5290,88-5290
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Francisco LOPEZ, Alberto Perdomo-Holquin, Defendants-Appellants.
CourtU.S. Court of Appeals — Eleventh Circuit

Chris Mancini, Miami, Fla., for Francisco Lopez.

L. Mark Dachs, and Debra Cholodofsky, Miami, Fla., for Alberto Perdomo Holquin.

Dexter W. Lehtinen, U.S. Atty., William F. Jung, Frank J. DiGiammarino, Mayra Lichter, and Linda Collins-Hertz, Asst. U.S. Attys., Miami, Fla., for the U.S.

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

Before KRAVITCH and JOHNSON, Circuit Judges, and KAUFMAN *, Senior District Judge.

JOHNSON, Circuit Judge:

Defendants appeal their convictions and sentences for conspiracy to possess cocaine with intent to distribute and for possession of cocaine with intent to distribute in violation of 21 U.S.C.A. Secs. 846 and 841.

I. FACTS
A. Background

On September 8, 1987, a container of balsa wood arrived in the Port of Miami from Ecuador. Drug Enforcement Administration ("DEA") and United States Customs agents searched the container and found approximately 400 pounds 1 of cocaine concealed in false compartments in the wood. The cocaine was wrapped in Ecuadorian newspapers. The agents decided to follow the cocaine and apprehend the importers. They left the cocaine in the false compartments and advised the trucking company waiting for the container that the container was ready for pickup.

On the morning of September 14, 1987, the trucking company picked up the container and delivered it to a mini-warehouse at 7882 Northwest 64th Street, near Miami. 2 A person later identified as Flores met the truck and had the container placed inside the warehouse. Flores remained at the warehouse until five that afternoon. He returned to the warehouse at seven that evening and left a short time later with a briefcase.

On the morning of September 15, 1987, Flores returned with five men. An agent observing the warehouse testified that he could hear the sounds of the men unloading the wood from the container. While the five men were unloading the container, Flores slowly drove his car around the warehouse parking lot. When the men were done, Flores closed the warehouse and left.

In the afternoon of September 16, 1987, defendant Alberto Perdomo-Holquin arrived and entered the warehouse. He met a truck from the trucking company, which took the empty container. Perdomo-Holquin then waited at the warehouse. As he waited, he came out of the front and scanned the parking lot three times. At 2:10 p.m., Flores arrived. After 30 minutes, Flores placed a long box in the trunk of his car and left. A short time later, a trooper with the Florida Highway Patrol and a Customs agent stopped Flores under the pretext that he was a robbery suspect. After obtaining Flores's consent, the trooper searched Flores's car and found some sticks of balsa wood but no cocaine. 3 The trooper then allowed Flores to leave.

On the morning of September 17, Flores arrived at the warehouse at 10:15 a.m., and Perdomo-Holquin arrived at 11:30 a.m. At 1:00 p.m., defendant Francisco Lopez arrived. Lopez parked his car and walked around the parking lot with a cellular phone in his hand. He walked past a car from which an agent was observing the warehouse, looked around, and continued walking the parking lot. Lopez then returned the cellular phone to his car and went to a cafeteria across the street, where he stood in the doorway looking out at the warehouse and parking lot. He then walked to the warehouse and entered through the partially open bay door. Lopez left at 1:45 p.m. and Perdomo-Holquin left five minutes later. Flores locked up and left at 3:15 p.m.

At 5:00 p.m., Lopez returned to the area. He drove his car completely around the parking lot and parked by the office door to the warehouse. He checked the door and found that it was locked, so he drove away. He returned a few minutes later and parked across the parking lot from the warehouse in a lengthwise position that covered several spaces. From this position, Lopez could observe the entire area. Perdomo-Holquin arrived fifteen minutes later, opened the warehouse bay door, and allowed Lopez to back his car into the warehouse.

A few minutes later, the agents executed a search warrant. They drove up to the warehouse, exited their vehicles, announced that they were federal agents and that they had a search warrant, and took Perdomo-Holquin and Lopez into custody. The agents entered the warehouse through the open bay door and the unlocked office door. Inside the warehouse, they found Lopez near the front passenger door of his car. A bundle of balsa wood 4 was in the open trunk along with the cellular phone. There was an operating citizens' band radio on the roof of the car. An electronic bug detector capable of detecting police radios and police tape recording devices was located near the driver's door. An instruction manual to the bug detector lay open on the front seat of Lopez's car.

The agents found Perdomo-Holquin in an interior office. A desk in the office contained a beeper with three telephone numbers in its memory, including Lopez's cellular phone and Perdomo's residence. The agents seized the balsa wood and the cocaine, which was in the warehouse. They also seized Perdomo-Holquin's keys to the warehouse and some Ecuadorian newspapers that were dated within a couple of days of the newspapers seized earlier from the container at the Port of Miami.

Special Customs Agent Sanz took the following notes when Perdomo made a statement after his arrest:

Perdomo stated that he had met his companion (referring to Lopez) in a disco and he (Perdomo) had been offered $100 per box by Lopez to move boxes. Perdomo said he had gotten the key from a male, whose name he did not know, but whom he referred to as an old man. 5 Perdomo said the old man just gave him the key to the warehouse. When Perdomo was asked what he had been doing at the warehouse, on the prior occasions he stated, "just hanging around." When asked where he got his car, Perdomo said, "I don't know, the other guy [referring to Lopez] gave it to me and told me to drive it."

B. Proceedings in the District Court

A grand jury indicted Lopez and Perdomo-Holquin on three counts each. 6 Count one, which was later dismissed, was for conspiracy to distribute cocaine in violation of 21 U.S.C.A. Secs. 841 and 846. Count two was for conspiracy to possess cocaine with intent to distribute in violation of 21 U.S.C.A. Secs. 841 and 846 ("the conspiracy count"). Count three was for possession with intent to distribute in violation of 21 U.S.C.A. Sec. 841 and 18 U.S.C.A. Sec. 2 ("the possession count"). Perdomo-Holquin filed a pre-trial motion for severance, which the district court denied.

The district court held a jury trial from January 8 to 12, 1988. Lopez testified that he was a carpenter in Colombia and that he owned a furniture manufacturing company in Venezuela. He said that he came to the United States because "[a]s a spontaneous matter, I had been appointed as a news person, but pro bono for a magazine, and I supposed that perhaps I would be able to do something relating to horses...." 7 He stated that he had known Flores twenty years earlier in Colombia, that he met Flores by chance in the Dadeland Mall in Miami, and that Flores offered him the job moving wood. Perdomo-Holquin chose not to testify. The prosecution, however, offered a redacted version of Perdomo-Holquin's post-arrest statement as evidence against him. 8 The jury found both Lopez and Perdomo-Holquin guilty on both counts.

In this appeal, we first consider (1) whether there was sufficient evidence to support the defendants' convictions, (2) whether the district court erred in denying Perdomo-Holquin's motion for severance because the omitted portions of his post-arrest statement were exculpatory, (3) whether the trial court erred in denying the defendants' motions to suppress evidence discovered in the warehouse search under 18 U.S.C.A. Sec. 3109, (4) whether the district court erred in denying the defendants' motions for a mistrial based on the prosecutor's remark during closing argument, and (5) whether the district court erred in sentencing the defendants.

II. ANALYSIS
A. Sufficiency of the Evidence

Both defendants argue that the evidence was insufficient to support their convictions. This Court cannot reverse a conviction for insufficiency of the evidence unless after reviewing the evidence in the light most favorable to the government, we conclude that no reasonable jury could find proof beyond a reasonable doubt. United States v. Bennett, 848 F.2d 1134, 1138 (11th Cir.1988); United States v. Petit, 841 F.2d 1546, 1558 (11th Cir.1988). The evidence is sufficient even if it does not exclude every reasonable hypothesis of innocence. Bennett, 848 F.2d at 1138.

There is ample evidence to support these convictions. Both of the defendants engaged in activity from which the jury could reasonably infer a plan to remove the cocaine from the warehouse while avoiding detection by the authorities. The warehouse contained approximately 400 pounds of cocaine with a wholesale price of approximately $3 million. Both defendants conducted counter-surveillance measures, indicating that they knew of the cocaine. Perdomo-Holquin watched for police surveillance as he waited for Flores on September 17, 1987. 9 Perdomo-Holquin also had the key to the warehouse, which indicates control over the warehouse and its contents. Perdomo-Holquin's home telephone number was in the beeper that the agents found in the warehouse office, indicating that he was in close contact with the holder of the beeper. Finally, the jury could have inferred guilty knowledge from Perdomo-Holquin's post-arrest statement. See Bennett, 848 F.2d at 1139 (jury may infer guilt from defendant's explanation of his activities). The jury reasonably could...

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