U.S. v. Manotas-Mejia

• Decision Date: 04 August 1987
• Docket Number: No. 86-2667,J,MANOTAS-MEJI,86-2667
• Citation: 824 F.2d 360
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jorgeusto Estrada-Tello, Julian Enriquez-Castro, and Samuel Ramirez-Rios, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 360

824 F.2d 360

UNITED STATES of America, Plaintiff-Appellee, v. Jorge MANOTAS-MEJIA, Justo Estrada-Tello, Julian Enriquez-Castro, and Samuel Ramirez-Rios Defendants-Appellants.

No. 86-2667.

United States Court of Appeals Fifth Circuit.

Aug. 4, 1987.

Rehearing and Rehearing En Banc Denied Oct. 1, 1987.

Michael G. Martinez, Houston, Tex. (court-appointed), for Estrado-tello.

Ralph R. Martinez, Houston, Tex. (court-appointed), for Enriquez-Castro.

Kent Robinson, Andrews & Kurth, Houston, Tex., for Samuel Ramirez-Rios.

Stephen J. Finta, Ft. Lauderdale, Fla., for Manotas-Mejia.

James R. Gough, Asst. U.S. Atty., Henry K. Oncken, U.S. Atty., Houston, Tex., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Texas.

Before RANDALL, WILLIAMS and GARWOOD, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

The defendants appeal their convictions for distributing and importing cocaine and for conspiracy. Upon review of the record we affirm the convictions.

I. The Stake Out

Jorge Manotas-Mejia, Justo Estrada-Tello, Julian Enriquez-Castro, and Samuel Ramirez-Rios were crew members on the Colombian ship CATALINA. Manotas was the ship's second engineer, in charge of certain engine room equipment. On March 22, 1986, the CATALINA arrived at the port of Houston, Texas from Barranquilla, Colombia. A confidential informant had alerted the United States Customs Service that the CATALINA carried about fifteen kilograms of cocaine for delivery to one "Carlos Vaca" in Houston. Based on this tip, Customs agents staked out the port and placed the CATALINA under surveillance once it arrived.

At about 8:00 p.m. on March 22, agent Robert Mangle saw Marilou Buyoc and a man board the CATALINA carrying a television set box. The man disembarked almost immediately. Buyoc disembarked at about 8:30 p.m. carrying a Gucci style handbag. She left the port in a car. Mangle followed her a short distance and then stopped her and placed her under arrest. In her car, Mangle found the Gucci bag stuffed with about five kilograms of cocaine.

During "debriefing" after her arrest, Buyoc agreed to help the authorities catch her suppliers on the CATALINA. At 11:30 p.m., she returned to the ship with undercover agent Lorenzo Mesa posing as her husband and a cocaine buyer. Once on board, Mesa negotiated to buy three kilograms of cocaine for $72,000 and actually left the boat with four kilograms. The next day, March 23, 1983, Mesa returned to the CATALINA and arrested the four appellants.

II. The Indictment

A four count indictment charged the appellants and Buyoc with various narcotics offenses involving cocaine. Count I charged that the four appellants and Buyoc conspired to possess over 1,000 grams with intent to distribute, in violation of 21 U.S.C. Secs. 846 and 841(a)(1). Count II charged all five defendants with possession with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1). Count III charged the four appellants (but not Buyoc) with distribution of the cocaine, in violation of 21 U.S.C. Sec. 841(a)(1), and Count IV charged the appellants with importation, in violation of 21 U.S.C. Secs. 952(a) and 960(a)(1).

Counts III and IV also charged violation of 18 U.S.C. Sec. 2, which provides that one "who aids, abets, counsels, commands, induces, or procures [the] commission [of a crime] is punishable as a principal."

After their arrest on March 23, the appellants were held without bail until trial. Buyoc, who also was arrested, was released on bail and fled the jurisdiction. Still a fugitive, she has not been tried.

III. The Trial

Without Buyoc, the government's key witness at trial was agent Mesa, who explained his 11:30 p.m. purchase in detail. According to Mesa, he and Buyoc boarded the CATALINA and went to Estrada's cabin, where they met Estrada and Manotas. The cabin was small, about six feet by ten feet. Manotas asked if Buyoc had been arrested earlier after she left with the handbag, and Buyoc and Mesa assured him that she had encountered no trouble. Mesa told Manotas and Estrada that he had found a buyer for the rest of their cocaine. Manotas and Estrada urged Mesa to speak quickly and quietly: Estrada warned that informants were on board, and Manotas told Mesa to use the slang term "aparatos" instead of "cocaine." Manotas also bragged that he would bring twenty kilograms on his next trip.

At Manotas' direction, Estrada called for Ramirez. Manotas told Ramirez that Mesa had found a buyer, and Ramirez and Mesa negotiated a price of $24,000 per kilogram for three kilograms. Ramirez demanded immediate payment, but Manotas assured him that Buyoc could be trusted to bring the money the next day. Ramirez left to get the cocaine, which Manotas and Estrada told Mesa was in the engine room.

Ramirez, accompanied by Enriquez, returned with a large bag that he handed to Mesa. Mesa emptied the contents, seven small packages, which Ramirez identified as three kilograms of cocaine. Enriquez told Mesa to pay in large bills, which would be easier to hide then a large number of small bills. Manotas told Buyoc to hide the bundles of cocaine in her clothes, but Mesa packed them in a box and left. Mesa returned the next day to arrest Manotas, Ramirez, Enriquez, and Estrada.

Aside from a chemist to identify the cocaine, the government's only other witness was agent Robert Mangle, the Customs officer who had surveyed the CATALINA and arrested Buyoc on March 22. According to his testimony, he surveyed the CATALINA from the time it docked in Houston and saw Buyoc board the ship at about 8:00 p.m. without the Gucci bag and leave at about 8:30 with it.

Of the defendants, only Estrada did not testify. Ramirez and Enriquez testified that they worked until 10:00 or 11:00 p.m. on March 22, ate dinner together in Ramirez's cabin, watched television, and retired for the night. They and Manotas denied selling cocaine on the 22nd and claimed that they first met Mesa when he arrested them on the 23rd. Ramirez also testified that he physically resembled another crew member, also named Ramirez, with whom Mesa must have confused him. Manotas also called a character witness to vouch for his law abiding reputation.

The jury convicted Manotas and Ramirez on all four counts and Estrada and Enriquez on Counts I, II, and III, but the district court vacated the convictions of all four appellants on Count II. The court sentenced both Manotas and Ramirez to twenty years on Counts I, III, and IV, to run concurrently, and sentenced both Estrada and Enriquez to fourteen years on Counts I and III, to run concurrently.

On appeal, each defendant challenges the sufficiency of the evidence to support his convictions. In addition, Manotas claims that (1) a variance between Count I and the evidence at trial mandates reversal of his convictions, (2) his sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment, and (3) he must be resentenced because of errors at his sentencing hearing. Finally, Ramirez claims that his identification by Mesa was improper.

IV. Standard of Review

We review the evidence in the light most favorable to the government and affirm if substantial evidence supports the verdict, that is, if a reasonable jury could have found guilt beyond a reasonable doubt. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680, 704 (1942); United States v. Loalza-Vasquez, 735 F.2d 153, 158 (5th Cir.1984). Contrary to defendants' contentions, to support a conviction the evidence need not exclude "every reasonable hypothesis of innocence." United States v. Bell, 678 F.2d 547, 549 (5th Cir.1982) (en banc), aff'd, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983); United States v. Livingston, 816 F.2d 184, 192 (5th Cir.1987). "We must reverse if a reasonable jury must have had a reasonable doubt about guilt." United States v. Moreno-Hinojosa, 804 F.2d 845, 847 (5th Cir.1986).

V. Count I.

a. Sufficiency of the Evidence

All four appellants claim that there is insufficient evidence to uphold their convictions for Count I, conspiracy. A conspiracy is an agreement between two or more people to commit a crime. United States v. Ortiz-Loya, 777 F.2d 973, 981 (5th Cir.1985). The government must prove that each conspirator knew the "essential nature" of the conspiracy and intentionally joined it. United States v. Fowler, 735 F.2d 823, 826 (5th Cir.1984); see also United States v. Colwell, 764 F.2d 1070, 1072 (5th Cir.1985) (defendant must intentionally and voluntarily join the conspiracy); Ortiz-Loya, 777 F.2d at 981 (defendant must intend to violate the substantive offense); United States v. Gordon, 712 F.2d 110, 114 (5th Cir.1983) (defendant must have "deliberate, knowing, and specific intent to join the conspiracy"). The government may prove an agreement by circumstantial evidence, although "close association" with criminals or "mere presence" at the scene of the crime will not support a conviction for conspiracy. Fowler, 735 F.2d at 827; United States v. Magee, 821 F.2d 234 (5th Cir.1987); United States v. Holcomb, 797 F.2d 1320, 1327 (5th Cir.1986).

It is clear that the jury decided to believe Mesa and disbelieve the appellants. Mesa's testimony clearly linked all four appellants to a conspiracy. Ramirez carried the cocaine to Estrada's cabin, negotiated a price, and demanded immediate payment. Enriquez accompanied Ramirez with the cocaine and told Mesa to bring large bills. The transaction occurred in Estrada's small cabin, and Estrada warned Mesa to speak quietly because informants might be listening. Manotas made many statements that manifest his involvement: he bragged that he would bring twenty kilograms on his next trip; he asked Buyoc if she had trouble after the 8:30 delivery; he suggested the term "apparatos;" he vouched for Buyoc's reliability and persuaded Ramirez to delay payment. The evidence clearly supports the convictions on Count I.

b. Variance

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