U.S. v. Parrado

• Decision Date: 20 September 1990
• Docket Number: No. 89-5756,89-5756
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Manuel PARRADO and Elfobaldo Rodriguez, Defendants-Appellants. Non-Argument Calendar.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1567

911 F.2d 1567

UNITED STATES of America, Plaintiff-Appellee, v. Manuel PARRADO and Elfobaldo Rodriguez, Defendants-Appellants.

No. 89-5756.

Non-Argument Calendar.

United States Court of Appeals Eleventh Circuit.

Sept. 20, 1990.

Stewart G. Abrams, Linda M. Osberg, Asst. Federal Public Defenders, Miami, Fla., for Parrado.

Joel Hirschhorn, Miami, Fla., for Rodriguez.

Dexter W. Lehtinen, U.S. Atty., Linda C. Hertz, Harriet R. Galvin, Thomas P. Lanigan, Asst. U.S. Attys., Miami, Fla., for U.S.

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

Before HATCHETT, CLARK and EDMONDSON, Circuit Judges.

CLARK, Circuit Judge.

Appellants Manuel Parrado and Elfobaldo Rodriguez were found guilty by a jury on two counts of a superseding indictment filed on March 31, 1988. Count one charged defendants with conspiracy to distribute in excess of five kilograms of cocaine, in violation of 21 U.S.C. Sec. 846. Count two charged defendants with possession with intent to distribute in excess of five kilograms of cocaine, in violation of 21 U.S.C. Sec. 841.

Appellants Parrado and Elfobaldo Rodriguez raise several claims on appeal. They both challenge the sufficiency of the evidence to support their conspiracy convictions. Specifically, they claim that the evidence is insufficient because the government did not present such things as videotapes and recordings, but instead relied solely on Agent Forteza's and other agents' We find that the district court committed no error; the decision of the district court is therefore AFFIRMED.

testimony. They assert that Forteza's testimony is insufficient to prove intent, a necessary element in conspiracy. Rodriguez appeals the district court's denial of his motion to suppress the cocaine found in his van. He argues that the search of his van violated the Fourth Amendment and asserts that the "automobile" exception does not apply in this case as there were no exigent circumstances. Parrado also appeals the sentence imposed by the district court. He claims that it was imposed in violation of the law and was excessively harsh.

FACTS

On November 12, 1987, at appellant Parrado's residence, a confidential informant introduced undercover Drug Enforcement Administration Special Agent Forteza to Parrado and defendant Eugenio Rodriguez. Agent Forteza arranged with them to purchase twelve kilograms of cocaine at $12,500 per kilogram. Parrado and Eugenio did not have the cocaine in hand, but told agent Forteza that they could obtain it from their source and deliver it to Forteza the next day.

On November 13, 1987, Agent Forteza and the confidential informant returned to Parrado's residence. Parrado showed Forteza a one kilogram package of cocaine. Forteza reminded Parrado that the deal was for twelve kilograms whereupon Parrado told Forteza that it would take a while. Forteza left Parrado's residence and returned approximately one hour later. When Forteza returned, only Eugenio Rodriguez was there. Eugenio said Parrado had gone to see his source. Soon thereafter, Parrado returned; he was accompanied by co-defendant Erika Agrillo. Agrillo showed Forteza a kilogram of cocaine which she removed from her purse. Parrado retrieved the other kilogram which he had shown Forteza earlier and placed both packages on the bed. Forteza insisted on purchasing twelve kilograms as agreed. Agrillo sent Parrado outside to a van to retrieve a tool box containing two additional kilograms of cocaine. Appellant Elfobaldo Rodriguez opened the side door of the van and handed Parrado the tool box. Parrado returned with the tool box containing cocaine. Agrillo placed the additional two packages on the bed and told Forteza that he would have to buy the four kilograms before he would get the rest. Forteza agreed, but insisted on getting the balance immediately after paying for the four kilograms. Agrillo told Forteza that the rest was in the van. Forteza then went out to his car to retrieve the money.

While in his car, Forteza radioed the agents who were conducting surveillance of the house and informed them that he had seen four kilograms in the house and the rest was in the van. Forteza returned to the house. The van left Parrado's residence; Special Agent Benisek, a member of the surveillance team, followed it to a coffee shop. Appellant Elfobaldo Rodriguez was driving the van; co-defendant Barrera was a passenger. After the van left Parrado's residence, members of the surveillance team entered Parrado's house and arrested Parrado, Agrillo and Eugenio Rodriguez. Several of the agents then proceeded to the coffee shop to assist Agent Benisek. The agents found Elfobaldo Rodriguez and Barrera leaning against the van drinking coffee and placed them under arrest. After they were handcuffed, one of the agents opened the van's sliding door. The van had no windows through which the agents could see the cargo area of the van; the door was unlocked. Just inside the door, the agents found a shopping bag containing four kilograms of cocaine. The van was impounded and searched thoroughly at DEA headquarters. The search netted two additional kilograms of cocaine in two empty five-gallon paint cans that were located behind the driver's and passenger's seats. The van was registered in Elfobaldo Rodriguez' name.

The Probation Officer and the district court determined Parrado was a career offender which, given the statutory maximum sentence of life imprisonment, yielded offense level 37 with criminal history category The Court has considered the facts in this case and reviewed the pre-sentence investigation. Additionally, although the PSI doesn't reflect it, the Court tried the case and is familiar with the evidence. The PSI should be so amended to reflect that the Court has taken notice of the defendant's role in this case.

VI. See 21 U.S.C. Sec. 841(b)(1)(A) and U.S.S.G. Sec. 4B1.1. Parrado's guideline range was 360 months to life. Parrado moved for a departure from the guidelines based on his age and the fact that after Parrado served even the statutory minimum sentence of twenty years, it was unlikely that he would recidivate. The district court denied Parrado's motion and stated:

The Court has further taken note of the defendant's past criminal history, including his past violation of probation, as well as breaches with the Federal Government.

It's this Court's viewpoint that the defendant is a career criminal.

The court then sentenced Parrado to life imprisonment on each count of his conviction.

DISCUSSION

A. Sufficiency of the Evidence.

The standard of review for sufficiency of the evidence is whether "a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt." United States v. Bell, 678 F.2d 547, 549 (5th Cir. Unit B 1982), aff'd, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983). To support a conspiracy conviction under 21 U.S.C. Sec. 846, the government must prove that there is an agreement by two or more persons to violate the narcotics laws. United States v. Tamargo, 672 F.2d 887, 889 (11th Cir.), cert. denied, 459 U.S. 864, 103 S.Ct. 141, 74 L.Ed.2d 119 (1982). The government must prove knowledge, intent and participation beyond a reasonable doubt. United States v. Vera, 701 F.2d 1349, 1357 (11th Cir.1983). Mere presence at the scene is not enough; however, "direct evidence of a conspiracy is not required. A defendant's knowing participation in a conspiracy may be established through proof of surrounding circumstances such as acts committed by the defendant which furthered the purpose of the conspiracy." Id.

Agent Forteza's and the other agents' testimony is clearly sufficient to support a jury finding that both Parrado and Rodriguez were knowing intentional participants in a conspiracy to violate the drug laws. The transaction took place in Parrado's residence and Forteza's testimony demonstrates that Parrado helped coordinate the entire transaction. Rodriguez maintains that the evidence shows that he was merely present and cannot sustain a conviction; however, Rodriguez used his van to transport the cocaine and was the party who handed Parrado the toolbox containing cocaine. We have stated that "[a] conspiracy conviction will be upheld ... when the circumstances surrounding a person's presence at the scene of conspiratorial activity are so obvious that knowledge of its character can fairly be attributed to him." United States v. Figueroa, 720 F.2d 1239, 1246 (11th Cir.1983). Elsewhere, in elaborating on the mere presence defense, this court has stated:

In most cases ... the evidence establishes not mere presence but presence under a particular set of circumstances. In such a case the task of determining the sufficiency of the evidence is not aided by the ritualistic invocation of the "mere presence" rubric. Rather, it requires an examination of all of the proved circumstances, including presence, to determine whether from them a reasonable jury could infer and find beyond a reasonable doubt knowing and intentional participation.

United States v. Cruz-Valdes, 773 F.2d 1541, 1545 (11th Cir.1985) (en banc).

Appellants also claim that the evidence is insufficient because the government presented only testimony by the agents involved in the operation. Appellants assert that the law requires more reliable forms of evidence such as videotapes and recordings. While such evidence may serve to enhance the government's case, it is by no means required and appellants cite no authority to support their position. The jury apparently found the agents' testimony credible. Credibility determinations are the exclusive province of the jury. United States v. Hewitt, 663 F.2d 1381, 1385 (11th Cir.1981) (jury entitled to believe government's witnesses even if they consist of "an array of scoundrels, liars and brigands").

Appellant Parrado's claim that the government failed to connect him with five kilograms of cocaine as alleged in the...