U.S. v. Padilla

• Decision Date: 06 April 1992
• Docket Number: D,Nos. 781,863,s. 781
• Citation: 961 F.2d 322
• Parties: UNITED STATES of America, Appellee, v. Paul PADILLA and Juan Torres, Defendants-Appellants, Luis Medina and Rosa A. Arias, Defendants. ockets 91-1501, 91-1531.
• Court: U.S. Court of Appeals — Second Circuit

Page 322

961 F.2d 322

UNITED STATES of America, Appellee, v. Paul PADILLA and Juan Torres, Defendants-Appellants Luis Medina and Rosa A. Arias, Defendants.

Nos. 781, 863, Dockets 91-1501, 91-1531.

United States Court of Appeals Second Circuit.

Argued Jan. 30, 1992.

Decided April 6, 1992.

Marjorie M. Smith (The Legal Aid Society, Federal Defender Services Appeals Unit, New York City), for appellant Torres.

Vivian Shevitz (Georgia J. Hinde, of counsel, New York City), for appellant Padilla.

Jonathan S. Sack, Asst. U.S. Atty. (Andrew J. Maloney, U.S. Atty, Susan Corkery, Asst. U.S. Atty, E.D.N.Y.), for appellee.

Before: VAN GRAAFEILAND, WALKER, and McLAUGHLIN, Circuit Judges.

WALKER, Circuit Judge:

Juan Torres and Paul Padilla appeal from convictions entered by Judge Carol Amon, following a jury trial in the District Court of the Eastern District of New York on August 2, 1991 and August 9, 1991 respectively. Padilla was convicted of conspiring and attempting to possess cocaine with intent to distribute it, in violation of 21 U.S.C. § 846. Padilla also was convicted of three counts of assaulting federal officers in violation of 18 U.S.C. § 111. The district court sentenced Padilla to a prison term of 100 months, to be followed by four years of supervised release, and a $50 special assessment on each of the five counts. Torres was convicted of aiding and abetting an attempted possession of cocaine with intent to distribute it as well as one count of assaulting a federal officer. The district court sentenced Torres to a prison term of 60 months to be followed by four years of supervised release, and a $50 special assessment on each of the two counts. This appeal followed.

Background

At trial, the government asserted that Padilla and Torres were relatively minor participants in a cocaine importing and distributing conspiracy headed by Susan Torres Padilla, a/k/a "Rachel", who is Padilla's mother and Torres' sister. Specifically, the two were charged for their role in picking up a drug courier, Rosa Arias, at LaGuardia airport.

Central to the government's case was the testimony of the courier, Arias, and her boyfriend, Medina, who accompanied Padilla and Torres in a van sent by Rachel to pick up Arias. Arias described two smuggling trips to Bolivia that she made on behalf of Rachel's organization. The first trip, in April-May 1990, went off without a hitch. Arias, and a friend, Lottie, flew to Bolivia with Rachel's money. The two returned to New York a few weeks later carrying packages of cocaine strapped around their waists. Arias testified to Padilla's intimate involvement in this first trip. She stated that Padilla dropped her off and picked her up at the airport and that on both occasions, they discussed the purpose of her trip. Arias also testified that Padilla participated in the arrangements for Arias to make a second trip to Bolivia.

The second trip, in August-September 1990, was less successful. Arias flew to Bolivia on August 24. After meeting with Rachel's supplier, she flew back on September 6, 1990 with a brown paper package of cocaine taped to her body. As Arias proceeded through customs at the airport in Miami, she was stopped by an inspector who asked her if she was carrying any drugs. She admitted that she was and gave the package to the inspector. He determined that it contained 2,025 grams of cocaine and placed Arias under arrest.

At this point, Arias agreed to make a controlled delivery of the drugs in New York. At the request of the agents in Miami, Arias attempted to call Rachel to arrange for Rachel to meet her at the airport on a later flight. She first called Medina to get Rachel's telephone number. He said he did not know the number, but would go over to Rachel's apartment and relay the message. When Medina did so, Rachel responded, in the presence of Torres and Medina: "What is she crazy? She knows DEA is all over the place, they have dogs." Thereafter, Rachel, Padilla, and Torres followed Medina to the gas station where he worked, left Medina there, and continued on to the airport to meet Arias.

When the three arrived at the airport, they were unable to find Arias. Frustrated, they returned to Medina's gas station. When they arrived there, Medina was talking on the phone to Arias, who, accompanied by two Drug Enforcement Agency (DEA) agents, had just arrived at LaGuardia airport. Rachel then sent Medina, Padilla, and Torres back to the airport to pick up Arias.

When Medina, Padilla, and Torres arrived at the airport, the DEA agents staked out their van and sent Arias over to make the controlled delivery. As soon as Arias entered the van, three agents rushed toward the van, guns drawn, and attempted to arrest Medina, who was outside the van, and Padilla and Torres, who were inside it. At that point, Padilla was in the driver's seat, and Torres was in the passenger's seat, sitting sideways, with his legs extending out the open passenger door.

While the precise contours of what happened next are not entirely clear, it seems that, as the agents closed in, Padilla put the van in gear and pulled away rapidly. The van thereupon struck one of the agents in the shoulder. The van next sideswiped a parked car, causing the passenger door to slam shut, nearly crushing another agent who was reaching for Torres. The slamming door pinned the agent's upper body inside the van. As the van continued forwarded, the trapped agent lost his footing, and his legs were dragged along the roadway. A third agent was forced to dive out of the way of the van and was struck by the door as the van sped past. The escape attempt was foiled when the agent pinned in the van managed to shoot Padilla in the foot. At that point, the van stopped and the agents arrested Padilla, Medina, and Torres.

Discussion

On appeal, Torres asserts that the evidence presented at trial was insufficient to support his aiding and abetting conviction. Padilla contends that the district court erred in calculating his sentence. We affirm the district court in all respects.

1. Torres

In order to establish an aiding and abetting charge, the government must show that the defendant "knew of the proposed crime" and "joined the specific venture and shared in it, and that his efforts contributed to its success." United States v. Labat, 905 F.2d 18, 23 (2d Cir.1990). Torres claims that the evidence at trial failed to establish either element of the crime.

In reviewing a challenge to the sufficiency of evidence, this court must affirm a conviction if, after viewing the evidence in the light most favorable to the government and drawing all inferences in favor of the government, we conclude that "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original); see Labat, 905 F.2d at 22.

Here, we conclude that a reasonable fact finder could have found that Torres both knew of the underlying crime and took steps to contribute to its success. The government's theory was that Torres was at the airport to serve as a lookout. While the government did not present direct evidence that Torres knew that the purpose of the trip was to pick up a drug courier, "[t]he jury may base its verdict entirely on inferences from circumstantial evidence". United States v. Oguns, 921 F.2d 442, 449 (2d Cir.1990). The government presented ample circumstantial evidence to support the jury's conclusion that Torres knew that Arias was carrying cocaine, and that Torres sought to further the cocaine conspiracy.

First, Medina testified that he informed Rachel that Arias was in Miami and would be delayed. Medina stated that upon receiving this news, Rachel became concerned that Arias might be apprehended in Miami, exclaiming "What is she crazy? She knows DEA is all over the place, they have dogs." Medina testified that Torres was in the room at the time of this conversation. It was reasonable for the jury to conclude that Torres heard the conversation. While this conversation did not expressly mention drugs, it did include references to the DEA and the presence of dogs at the airport. From this, a jury could reasonably infer that Torres knew the person at the airport would be carrying drugs.

Of course, "mere negative acquiescence ... in the criminal conduct of others, even with guilty knowledge is not sufficient to establish aiding and abetting. An aider and abettor must have some interest in the criminal venture." United States v. Stanchich, 550 F.2d 1294, 1300 (2d Cir.1977). However, here the jury reasonably could have found that Torres' behavior, both at the airport and in deciding to go on the trip, established his interest in the venture. The agents testified that at the airport, Torres sat sideways in the front seat of the van, with his legs out the door, scanning the area. While Torres' behavior might plausibly have been viewed as innocent, once the jury determined that Torres knew that the courier would be carrying drugs, it was not unreasonable for the jury to conclude that Torres was acting as a lookout. See id. This conclusion is particularly sensible in light of the fact that Torres admitted that he did not know what Arias looked like. Thus, it is hard to see why Torres would have been "scanning the area" if not to spot potential interference with the drug transaction.

Further, the testimony showed that Torres made not one, but two trips to the airport. The jury could reasonably have concluded that if Torres wanted simply to keep Padilla company for a while, he would not have taken the second trip. In addition, the jury could have concluded that Rachel would not have included her brother on the mission to pick up Arias if he were unknowing, lest he find out the truth and interfere. Finally, one of the arresting agents testified that when he entered the van, Torres pushed him. For this shove, Torres was...