U.S. v. Perez-Tosta
| Decision Date | 08 November 1994 |
| Docket Number | No. 92-4781,PEREZ-TOST,G,92-4781 |
| Citation | 36 F.3d 1552 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Hernan Franciscoustavo Javier Correa-Patino, Erasmo Perez-Aguilera, Luis Guillermo Rojas-Valdez, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Benjamin S. Waxman, Weiner, Robbins, Tunkey, Ross, Amsel & Raben, P.A., Miami, FL, for Perez-Tosta.
Oscar Arroyave, Miami, FL, for Correa-Patino.
Peter Raben, Coconut Grove, FL, for Perez-Aguilera.
William D. Matthewman, Miami, FL, for Rojas-Valdez.
Mary V. King, Asst. U.S. Atty., Miami, FL, for appellee.
Appeals from the United States District Court for the Southern District of Florida.
Before TJOFLAT, Chief Judge, COX, Circuit Judge, and YOUNG *, Senior District Judge.
Defendants Hernan Perez-Tosta (Tosta), Gustavo Correa-Patino (Correa), Erasmo Perez-Aguilera (Aguilera), and Luis Rojas-Valdez (Rojas) appeal convictions for conspiracy to distribute cocaine in violation of 21 U.S.C. Sec. 846 and, in Rojas's and Correa's cases, possession of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1). Because the prosecutor gave only a few minutes' pretrial notice, Aguilera challenges the district court's admission of prior bad acts evidence under Fed.R.Evid. 404(b). In addition, Aguilera, Tosta, and Rojas contend that the evidence was insufficient to support their convictions. All the appellants also raise other issues.
For over a year before the arrests in this case, the Drug Enforcement Agency (DEA) conducted an undercover investigation targeting a suspected cocaine trafficker, Fernando Loaiza-Alzate (Loaiza). As part of the probe, DEA agent Joseph Giuffre offered Loaiza his services as a smuggler of shipments of Colombian cocaine from the Bahamas into South Florida. For one of these shipments, Giuffre was put in touch with Adelsis Grieco. Grieco and Giuffre planned for Grieco to have the cocaine flown from northern Colombia to the southeastern Bahamas, where the cocaine would be dropped for Giuffre's men to retrieve. After Giuffre had smuggled the cocaine into South Florida, the cocaine would be transferred to Grieco's men.
One of these transfers in Florida was to take place on July 20, 1990. Grieco's organization owned two pickup trucks equipped with concealed cargo compartments under the truckbed. Grieco was to turn the trucks over to Giuffre, who was to have the concealed compartments filled with cocaine. Giuffre would then have his people park the trucks at two southwest Miami locations that Grieco would code into Guiffre's beeper.
On July 18, 1990, Giuffre and Grieco met in a Kendall, Florida restaurant for the initial transfer of the trucks. Grieco explained the pickups' hidden compartments to Giuffre as the two of them circled the parking lot in Giuffre's car. After Grieco had told Giuffre where the trucks were, Giuffre stopped the car, and Grieco rolled down his window and whistled. Tosta appeared with an envelope containing one of the trucks' keys, registration, and insurance papers. Tosta and Grieco exchanged a few words in Spanish and left together in Grieco's car.
On July 20, 1990, the day planned for the transfer, Tosta and Aguilera arrived at Grieco's house at 10:20 a.m. in a LeBaron rented in Aguilera's name. Grieco took the wheel, and for the next hour and a half to two hours, he drove erratically around the neighborhood and up and down U.S. 1, pulling into driveways and pulling directly out again, making U-turns, and even coming to a full stop in moving traffic on U.S. 1. Agents identified this erratic driving as countersurveillance, a ploy for Grieco to determine if he was being followed. Meanwhile, around 11:00, DEA agents parked the pickups, each carrying seventy kilograms of cocaine, in two designated shopping center parking lots on U.S. 1. Grieco's erratic route took him repeatedly past the lots where the trucks were parked.
A few minutes after DEA agents had put the cocaine-laden trucks in the lots, Rojas and Victor Manuel Estrada-Correa 1 arrived to drive the trucks to Grieco's storage sites. Rojas was led by a small brown car to Correa's house. The testimony is in conflict as to what happened at Correa's house. DEA agents testified that Rojas drove the truck into the garage and closed the garage door, only to emerge a little while later, driving the same truck without the load of cocaine. Rojas testified that he never parked the truck in the garage, and that he was directed by a man to sit in Correa's living room. He did so until Correa (whom Rojas had never met) appeared, wet from the shower, and told Rojas to get out of the house. Rojas then left in the pickup he had arrived in.
As Rojas left, the DEA agents stopped the truck and arrested him. The agents immediately discovered that the cocaine was missing from the hidden compartments, and they returned to Correa's house. One agent discovered Correa with his body half out a window in the rear of the house. Correa went back in, and before agents could ram Correa's door in, Correa emerged from the open garage door in an attempt to flee. He was arrested. Agents then entered the house and discovered the cocaine in a bedroom.
Meanwhile, Grieco had observed the DEA agents' unmarked cars following the LeBaron's erratic maneuvers, and he got out of the car at a gas station on U.S. 1. Aguilera took the wheel and continued the erratic driving for another half hour to forty-five minutes, when agents stopped the car and arrested both Aguilera and Tosta.
After the arrests, Grieco and Giuffre remained in contact for a few more weeks, but Grieco was never arrested and remained a fugitive at the time of trial.
Aguilera, Tosta, Correa, Rojas, Grieco, and Estrada-Correa were all charged with one count of conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. Sec. 846 and one count of possession of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1). At trial, most of the law enforcement personnel who surveilled the defendants testified as to what they saw on July 20. However, the Government did not call Agent John Shepard, the one agent who had direct visual contact with Correa's house while Rojas and Correa were inside.
In addition to the agents and officers, the Government called Luis Zaldivar, who was not a subject of this investigation, to testify that he had seen Aguilera on at least two prior occasions working for Grieco's organization. Only a few minutes before voir dire, the Government notified Aguilera's counsel that it intended to present this evidence under Fed.R.Crim.Evid. 404(b). Aguilera's counsel objected to the admission of the evidence with such short notice. At the hearing on the issue during trial, the district court concluded that because six days had elapsed between voir dire and the day the Government planned to call Zaldivar, the notice was in fact reasonable and the testimony therefore admissible.
The jury convicted Correa, Aguilera, Tosta, and Rojas of conspiracy to distribute cocaine. Correa and Rojas were also convicted of possession of cocaine with intent to distribute. All defendants moved for judgments of acquittal both at the close of the Government's evidence and at the close of all the evidence. At the close of the Government's evidence, the district court denied Rojas's and Correa's motions and reserved ruling on the others. At the close of all the evidence, the district judge denied all the motions.
At the sentencing hearings, the district court ruled that the defendants would be held liable for all seven hundred kilograms of cocaine that Grieco had planned to import through Giuffre. After adjustments, the court sentenced all four defendants to 235 months' imprisonment and five years' supervised release.
Each of the four appellants raises a number of issues on appeal, and some of the issues are common to more than one appellant: 2
(1) Aguilera, Rojas, and Tosta all challenge the district court's denial of their motions for acquittal, contending that the Government's evidence did not suffice to show they voluntarily participated in the conspiracy, or, in Rojas's case, to show that he knowingly possessed cocaine.
(2) Aguilera contends that the district court erred in admitting 404(b) evidence when Aguilera received notice of the Government's intent to offer the evidence only a few minutes before trial.
(3) Aguilera contends that the district court erroneously forbade him from cross-examining the Government's 404(b) witness on his knowledge of the sentencing guidelines.
(4) Rojas contends that he was denied effective assistance of counsel.
(5) Tosta and Rojas take issue with the district court's attribution of 700 kilograms of cocaine to them for sentencing purposes.
(6) Rojas argues that the district court erred in giving the jury a "deliberate ignorance" instruction.
Three defendants, Tosta, Aguilera, and Rojas, contend that the district court improperly denied their motions for acquittal because the Government's evidence was insufficient to convict them. We find the evidence sufficient as to Aguilera and Rojas, but we hold that the evidence was insufficient to convict Tosta. After reviewing the relevant principles of law, we discuss each defendant in turn.
We review the denial of a defendant's motion for acquittal de novo. United States v. Mieres-Borges, 919 F.2d 652, 656 (11th Cir.1990), cert. denied, 499 U.S. 980, 111 S.Ct. 1633, 113 L.Ed.2d 728 (1991); United States v. Kelly, 888 F.2d 732, 739 (11th Cir.1989). In considering the sufficiency of the evidence, we draw all reasonable inferences in the Government's favor. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Keller, 916 F.2d 628, 632 (11th Cir.1990), cert. denied, 499 U.S. 978, 111 S.Ct. 1628, 113...
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