U.S. v. Pedraza, s. 92-2042

• Decision Date: 30 June 1994
• Docket Number: Nos. 92-2042,92-2054 and 92-2084,s. 92-2042
• Citation: 27 F.3d 1515
• Court: U.S. Court of Appeals — Tenth Circuit
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alphonso PEDRAZA, Defendant-Appellant, UNITED STATES of America, Plaintiff-Appellee, v. Peter Brent IRELAN, Defendant-Appellant, UNITED STATES of America, Plaintiff-Appellee, v. Enrique PEDRAZA, Defendant-Appellant.

Page 1515

27 F.3d 1515

UNITED STATES of America, Plaintiff-Appellee, v. Alphonso PEDRAZA, Defendant-Appellant, UNITED STATES of America, Plaintiff-Appellee, v. Peter Brent IRELAN, Defendant-Appellant, UNITED STATES of America, Plaintiff-Appellee, v. Enrique PEDRAZA, Defendant-Appellant.

Nos. 92-2042, 92-2054 and 92-2084.

United States Court of Appeals Tenth Circuit.

June 30, 1994.

Michael G. Katz, Federal Public Defender, James P. Moran, Asst. Federal Public Defender, Denver, CO, for defendant-appellant Alphonso Pedraza. ^*

Jerry A. Walz, Albuquerque, NM, for defendant-appellant Peter Brent Irelan.

Stephen P. McCue, Asst. Federal Public Defender, Albuquerque, NM, for defendant-appellant Enrique Pedraza.

Larry Gomez, Asst. U.S. Atty. (John J. Kelly, U.S. Atty. and James T. Martin, Asst. U.S. Atty., with him on the brief), Albuquerque, NM, for plaintiff-appellee U.S.

Before TACHA and BALDOCK, Circuit Judges, and DAUGHERTY, District Judge. ^**

BALDOCK, Circuit Judge. ^***

Defendants Alphonso Pedraza ("Alphonso"), Enrique Pedraza ("Enrique"), and Peter Brent Irelan were convicted by a jury of one count of conspiracy to possess with intent to distribute more than five kilograms of cocaine, 21 U.S.C. Sec. 846; 18 U.S.C. Sec. 2. Enrique was also convicted of one count of possession with intent to distribute more than five kilograms of cocaine, 21 U.S.C. Sec. 841(a)(1); 18 U.S.C. Sec. 2. We have jurisdiction under 28 U.S.C. Sec. 1291.

The relevant facts for purposes of this appeal are as follows. Edward Mitchell and George Anthony Seek were longtime drug dealers who had been acquainted since the seventies. While incarcerated together on unrelated drug charges at La Tuna Federal Penitentiary in the early eighties, the two discussed engaging in future drug smuggling operations upon release from prison. On November 25, 1988, Mitchell, who had escaped from a halfway house and was a fugitive from the United States residing in Colombia, South America, placed a telephone call to Seek, who had been released from La Tuna and was residing in New Mexico. During that call, Mitchell informed Seek that he was arranging a deal to import a large amount of marijuana into the United States. Mitchell asked Seek to assist in arranging for the transportation of the marijuana into the United States in exchange for a large amount of cash, and Seek expressed interest.

At the time of his November 1988 conversation with Mitchell, Seek was working as an informant for the United States Customs Service, in exchange for the government's recommendation that he receive probation for pleading guilty to a 1986 unrelated drug charge. For his assistance in the case against Defendants, the government compensated Seek in the amount of $100,000.

Following the November 25, 1988 conversation between Mitchell and Seek, the two spoke several times and discussed the logistics of smuggling marijuana into New Mexico via aircraft. At some point, Seek introduced the idea of importing cocaine instead of marijuana and informed Mitchell that he knew some people in the United States who were interested in purchasing cocaine. Nearly one year after this conversation, Mitchell became involved with individuals in the cocaine business, and he notified Seek that plans were being formulated to smuggle 500 kilograms of cocaine into Florida by aircraft. In order to facilitate the cocaine-smuggling plan, Mitchell provided Seek with Alphonso's telephone number in Miami, and informed Seek that Alphonso would contact him regarding expense money for the operation. Mitchell also informed Seek that Alphonso's brother Enrique, who was a fugitive from the United States living in Colombia, was involved in the cocaine-smuggling plan.

On November 17, 1989, Alphonso telephoned Seek and informed him that he was going to ship $20,000 in expense money from Florida to Seek in New Mexico. The money was to finance a plan that called for Seek to fly into Colombia and pick up the cocaine and transport it to Miami where it would be delivered to Alphonso. Seek retrieved the $20,000 at the Albuquerque airport. Shortly thereafter, Seek advised Alphonso that another $5,000 was needed for the transportation of the cocaine. On November 20, 1989, Seek met Alphonso at a Miami shopping mall and Alphonso gave Seek the additional $5,000. On November 21, 1989, Seek notified Mitchell that he was departing from Florida by aircraft to Colombia to transport the cocaine. However, because the Customs Service was unable to obtain country clearance for the trip, Seek called Enrique and told him that the aircraft had been seized and that additional funds would be required to obtain another aircraft to transport the cocaine. On December 13, 1989, Enrique advised Seek that Alphonso was attempting to arrange another drug deal to raise money to pay for the transportation of the cocaine.

While alternative smuggling plans were being formulated, Mitchell and Enrique began having difficulty obtaining expense money from the cocaine owners. Around this time, Mitchell informed Seek that he was so unhappy with his living conditions in Colombia that he was tempted to return to the United States and turn himself over to authorities. Mitchell informed Seek that Enrique was also miserable in Colombia and was "about ready to split too." Seek reassured Mitchell that the deal could go forward. On January 20, 1990, Mitchell was arrested by Colombian authorities. On February 6, 1990, Alphonso was arrested by Florida state officials on unrelated drug charges.

Following Alphonso's arrest, Irelan and Nelson Pedraza ("Nelson") entered the picture. Irelan called Seek and reassured him that the deal was still on, and informed Seek that he would arrange to get an additional $30,000 in expense money. In order to assure Seek, Enrique informed him that his brother Nelson and Irelan, Alphonso's brother-in-law, were reliable and that Seek could speak freely with them concerning the pending operation.

In March 1990, the cocaine owners agreed to provide the expense money. Enrique informed Seek that the money could be picked up in California. Seek and a Customs Service official traveled to Los Angeles and retrieved the $30,000 from an unidentified male. On March 13, 1990, Enrique informed Seek that Irelan would send additional expense money. On March 14, 1990, Irelan sent $5,000 to Seek in New Mexico.

In April 1990, Enrique and Seek conceived a new plan for smuggling the cocaine into the United States. Enrique proposed that Seek land a seaplane off the Colombian coast and pick up the cocaine from Enrique who would come alongside the seaplane in a boat. The cocaine would then be flown to New Mexico. On May 11, 1990, Irelan and Nelson traveled to New Mexico to help unload the cocaine upon its arrival, and Irelan gave an additional $4,900 in expense money to an undercover Customs Service official. On May 17, 1990, Seek departed for the coast of Colombia, however, high seas prevented a safe water landing. As a result, the attempt had to be aborted, as did a second attempt on May 19, 1990.

After these unsuccessful attempts, Seek proposed that Enrique transport the cocaine by small boat into the waters off the coast of Colombia where a ship would pick up the cocaine and transport it to an area where the seaplane could safely land. Enrique readily agreed to the plan and agreed to provide additional expense money. On May 24, 1990, Irelan sent Seek an additional $19,950.

On June 13, 1990, an undercover Customs Service ship, "The Hope," met a small boat off the coast of Colombia. The skipper of The Hope was Joseph Goulet, a Customs Service employee. Enrique and Jamie Martinez were on board the small boat. At trial, Goulet testified that The Hope was approximately fifteen miles off the coast of Colombia in international waters when the cocaine transfer occurred. However, after trial it was discovered that some native fishermen had seen The Hope as close as five miles off Colombia's coast.

In any event, thirty-six bundles of cocaine, amounting to 707 kilograms, were transferred from Enrique's boat to The Hope, and Enrique and Martinez came aboard. The Hope then left to meet Seek's seaplane at an agreed-upon location. On June 15, 1990, The Hope arrived off the coast of Puerto Rico and the cocaine was transferred to the seaplane. Enrique and Martinez boarded the seaplane, which departed for Florida for refueling, and then landed at an undercover airstrip in New Mexico.

Undercover Customs Service agents met the seaplane in New Mexico. Agent Jim Stokes, Enrique, Martinez, and Seek then drove to an Albuquerque hotel and met Irelan and Nelson, who had arrived in New Mexico to await the delivery of the cocaine. At the hotel, Enrique placed several telephone calls to Colombia to inform his associates that the cocaine had arrived. He then made arrangements to obtain the money to pay Seek for the transportation of the cocaine. Enrique advised Seek that the payment for the transportation would have to be retrieved in California. On June 17, 1990, Nelson and Seek flew to California and Nelson received $400,000 from Jairo Salazar. Nelson later turned the money over to Seek.

On June 22, 1990, the Customs Service arrested Enrique, Irelan, Martinez, and Nelson. Martinez was later turned over to the Immigration and Naturalization Service ("INS") for deportation. On July 4, 1993, Salazar was arrested at Miami International Airport.

Following the arrests, the Customs Service held a press conference where it displayed the cocaine and stacks of money that had been confiscated upon Defendants' arrest. Following the press conference, the Select Committee of the United States House of Representatives conducted an investigation into the June 22, 1990 arrests, and Chairman Charles Rangel and Representative Bill Richardson issued a joint statement. In that statement, Rangel and Richardson criticized the Customs Service for misstating the facts surrounding the...