U.S. v. Perez

• Citation: 824 F.2d 1567
• Decision Date: 24 August 1987
• Docket Number: No. 86-5459,86-5459
• Parties: 23 Fed. R. Evid. Serv. 1241 UNITED STATES of America, Plaintiff-Appellee, v. Alain Asland PEREZ, Jerome Latchinian, Robert Kurtz, Edward J. Hernandez, Juan Jesus Roca, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1567

824 F.2d 1567

23 Fed. R. Evid. Serv. 1241

UNITED STATES of America, Plaintiff-Appellee, v. Alain Asland PEREZ, Jerome Latchinian, Robert Kurtz, Edward J. Hernandez, Juan Jesus Roca, Defendants-Appellants.

No. 86-5459.

United States Court of Appeals Eleventh Circuit.

Aug. 24, 1987.

Donald I. Bierman, Bierman, Sonnett, Shohat & Sale, P.A., Robert M. Duboff, Benedict P. Kuehne, Miami, Fla., for Latchinian.

Jose M. Quinon, Coral Gables, Fla., Harry Solomon, Miami, Fla., for Hernandez.

Margaret S. Brodsky, Miami, Fla., for Alain A. Perez.

Laurel White Marc-Charles, Miami, Fla., for Kurtz.

Simon T. Steckel, Coral Gables, Fla., for Roca.

Leon B. Kellner, U.S. Atty., Michael E. Runowicz, Andrea M. Simonton, Linda C. Hertz, Asst. U.S. Attys., Miami, Fla. for U.S.

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

Before KRAVITCH and EDMONDSON, Circuit Judges, and TUTTLE, Senior Circuit Judge.

TUTTLE, Senior Circuit Judge:

In this case the appellants challenge their convictions for various drug-related offenses arising from an importation of cocaine for the purpose of financing the assassination of the president of Honduras. As we find the evidence sufficient to support the convictions of each defendant, the convictions are affirmed.

I. FACTS

The primary grounds of appeal concern the sufficiency of the evidence first in terms of the threshold requirement necessary to substantiate the use of co-conspirator statements under United States v. James, 590 F.2d 575 (5th Cir.) (en banc) cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979), ¹ and second in terms of generally supporting the convictions. As the sufficiency of the evidence is challenged, a rather detailed recitation of the facts is required.

First, for clarity, it is noteworthy that the two principal actors behind the drug importation scheme were not defendants in this case. They are Gerard Latchinian, part owner of G & J Export Company, a Miami-based arms and munitions export business, and Faiz Sikaffy. The defendants in this case are Gerard Latchinian's brother, Jerome Latchinian, Alain Perez, a G & J employee, Robert Kurtz, Edward Hernandez, and Juan Roca.

This case began when Charles Odorizzi, a former U.S. Army officer, was approached to assist in a plot to overthrow the Honduran government. Odorizzi informed the FBI and was joined by undercover agent Salvadore Escobedo in order to investigate the situation. In meetings with Gerard Latchinian and Faiz Sikaffy the undercover operatives agreed to kill the Honduran president in exchange for a combination of cash and drugs. It is the importation of drugs for this intended purpose that forms the basis of the convictions in this case. Three hundred kilos of cocaine were actually smuggled into the country. Aside from that, the majority of physical evidence in this case consisted of recordings of telephone conversations and business meetings.

As the parties' meetings began to focus on drug importation, the actors' discussions shifted to the logistical ends of that enterprise. The parties discussed pilots, landing strips, refueling, unloading, deodorizing a plane, and an undetected flight into the United States. What appears to have been an aborted importation attempt occurred on October 20 or 21, 1984. While Odorizzi's and Escobedo's help was not solicited for this effort, knowledge of this attempt comes from wiretaps on Latchinian's and Sakiffy's residence and Latchinian's place of business.

Appellant Kurtz enters the scene in regard to this smuggling attempt through various conversations with Sikaffy. While language in Kurtz's conversations was euphemistic, his speech indicates his intimate involvement in obtaining a pilot for the venture. This particular venture was aborted, however, so help from the undercover operatives was elicited for the next attempt.

On October 22, 1984, Sikaffy and Gerard Latchinian met with Odorizzi and told him they wanted to bring in a load of cocaine on the following Saturday. Sikaffy asked Odorizzi to obtain a pilot, referred to as a "doctor," so he could test fly the plane in preparation for the flight. The next day, appellant Jerome Latchinian called Sikaffy and confirmed a meeting with Gerard Latchinian on Saturday. In the course of this conversation, Sikaffy asked appellant Latchinian to make a previously discussed proposal to Jerome's friend. The following day, October 24, 1984, appellant Kurtz called Sikaffy and told him that Jose Cymerman was going to pilot the plane. At a meeting with the undercover operatives that evening, plans were made for the flight. Sikaffy stated that appellant Kurtz would transport the cocaine once it arrived in the United States. Sikaffy further indicated that Kurtz had flown in the aircraft that morning and that it was prepared for the flight. Sikaffy also discussed the details of the money to be made, including his plan to give 10 kilos to an individual who had advanced them $100,000 for the plane. Kurtz would transport the remainder of the drugs to the Colombian owners in exchange for the money due them for importing the cocaine. Later that night, Gerard Latchinian received a call that problems had arisen in Colombia and the flight had to be cancelled until further notice.

Three meetings took place at Gerard Latchinian's residence on October 26, 1984. The first occurred in the morning at approximately 10:00 a.m. The undercover operatives met with Sikaffy and Gerard Latchinian concerning the problems in Colombia that caused the cancellation. During the meeting, Sikaffy asked appellant Latchinian if he had contacted the individual with the $100,000. Appellant Latchinian responded negatively.

The second meeting that day occurred in the early afternoon. At that time, the undercover operatives were introduced to Jose Cymerman, who was to pilot the plane from Colombia, and to appellant Kurtz. Sikaffy proposed flying in marijuana; however, the undercover operatives and the pilot preferred to import cocaine.

The third and final meeting of the day took place at approximately 6:00 p.m. Present were the undercover operatives, Sikaffy, and appellants Perez, Kurtz, and Jerome Latchinian. All six men sat around a coffee table in the livingroom throughout the course of the meeting. Sikaffy mentioned that the reason the earlier flight had been cancelled was his suspicion that the Colombian authorities were aware of the scheme. Speculation ensued that the pilot appellant Kurtz had located might be an informant. Appellants Latchinian and Kurtz acknowledged meeting the pilot in Orlando. Appellant Latchinian described how he had discussed matters with the pilot while driving with him. Appellants Kurtz and Latchinian discussed the possibility that the pilot was an informant. The group concluded that the venture could continue as long as a new pilot, Jose Cymerman, was used.

Subsequent meetings were held the following day and on Sunday, October 28. These meetings involved further discussions concerning the importation scheme. Discussed were the two kilograms going to Kurtz for his distribution efforts, the money that appellant Latchinian would receive in advance, and the pilot's arrival in Colombia.

On the morning of October 28, Sikaffy, Kurtz, Gerard Latchinian and Jerome Latchinian met at Sikaffy's home and made a series of calls. In the space of 45 minutes, from 10:30 a.m. to 11:17 a.m., appellant Latchinian called the residence of appellant Hernandez three times. Each time he spoke to appellant Roca who answered the phone and took messages. In the course of the third call, appellant Latchinian asked Roca to give Hernandez a message that "the chicks are here" and that Jerome wanted to know if "we're serious or not." Shortly thereafter, Hernandez called Sikaffy's residence and after speaking with Gerard Latchinian who advised him that "the girls are here," Hernandez acknowledged receiving appellant Latchinian's message. Sikaffy called Odorizzi by phone to advise him that the plane had arrived in Colombia at 10:30 and that it was being loaded with "a lot of meat." Hernandez called Sikaffy's residence again and asked appellant Latchinian to come over to his house.

At approximately 7:00 p.m., Kurtz, who was staying at Sikaffy's residence, received a telephone call from Gerard Latchinian advising him that he and Sikaffy had arrived at Vero Beach and registered at a hotel under a false name. Gerard Latchinian gave Kurtz a phone number for his brother Jerome to call if he should be in touch with Kurtz.

On October 28, 1984, an aircraft piloted by an FBI agent met with an aircraft over a rendevouz point in the Bahamas and led that plane into the United States. At approximately 6:00 p.m., the escorted plane, flown by Jose Cymerman, landed at a strip controlled by undercover FBI agents, and duffel bags containing 300 kilograms of cocaine were unloaded.

After being advised that the plane had landed safely, Kurtz, still at Sikaffy's residence, called his wife and excitedly advised her that 300 "babies" had come in and that he would be coming home with a couple of them. Kurtz then made a second call to another woman to advise her that he had "300 white leghorns" "all full sized chicks" that had all "hatched." Subsequently, Kurtz was advised by Gerard Latchinian that there would be no movement of the "flowers" that night.

Once the drugs had arrived in this country, the undercover operatives met with Gerard Latchinian and Sikaffy in order to settle the mechanics of the delivery of the cocaine and the exchange of the money.

On November 1, 1984, at approximately 2:00 p.m., agent Escobedo went to Gerard Latchinian's office, at G & J Exports, and was admitted into the locked suite by appellant Perez. Perez was the only employee present. Just prior to this meeting, Sikaffy had a telephone conversation with appellant Latchinian at his brother's house. Essentially, appellant Latchinian informed...