U.S. v. Restrepo

Citation994 F.2d 173
Decision Date17 June 1993
Docket NumberNo. 92-4580,92-4580
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Andy RESTREPO and Gustavo Bedoya Naranjo, Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Mervyn Hamburg, Atty., U.S. Dept. of Justice, Crim.Div., Bob Wortham, U.S. Atty., Tyler, TX, for the U.S.

Appeals from the United States District Court for the Eastern District of Texas.

Before JOLLY and DAVIS, Circuit Judges, BRAMLETTE, 1 District Judge.

BRAMLETTE, District Judge:

Defendants-appellants Andy Restrepo and Gustavo Bedoya Naranjo appeal their convictions, following a joint jury trial, on charges that they conspired to possess more than five kilograms of cocaine with the intent to distribute it, in violation of 21 U.S.C. § 846, and on individual charges of possession of more than five kilograms of cocaine with the intent to distribute it, and actual distribution of more than five kilograms of cocaine, all in violation of 21 U.S.C. § 841.

Defendant Andy Restrepo (Restrepo) was found guilty of the conspiracy charge (count 1), one individual count of possession with intent to distribute and actual distribution (count 5), and one individual count of possession with intent to distribute (count 6). Defendant Gustavo Bedoya Naranjo (Naranjo) was found guilty of the conspiracy charge (count 1), four individual counts of possession with intent to distribute and actual distribution (counts 2-5), and one individual count of possession with intent to distribute (count 6). 2 Finding no reversible error as to any of the issues raised on appeal, we affirm both defendants' convictions.

I. FACTS

The conspiracy with which the defendants were charged was alleged to have taken place from approximately 1981 until 1991 (count 1). The individual counts in the indictment were alleged to have taken place in the spring of 1987 (count 2), March of 1989 (count 3), June of 1990 (count 4), June of 1991 (count 5), and November of 1991 (count 6).

At trial, the government's evidence showed the following:

A. The Beginnings of the Conspiracy

J.C. Lanier and John Thomas Johnson, co-traffickers in marijuana, were introduced to the defendant Naranjo in east Texas sometime in the early 1980's. Lanier met Naranjo first, for the purpose of purchasing cocaine from him. Lanier then introduced Johnson to Naranjo, and Johnson also began purchasing cocaine from Naranjo.

In approximately 1983 or 1984, Naranjo introduced Johnson to his brother, German Naranjo, a resident of Miami, Florida. Johnson and German Naranjo then went to Dallas to obtain cocaine which had been shipped there at the direction of German Naranjo. Johnson and Lanier then attempted to sell the cocaine. The defendant Naranjo did not participate in this transaction, but there was testimony that he had knowledge of it.

Johnson testified that in 1984 Naranjo introduced him to someone named "Ney," who had come to east Texas from Miami with a kilogram of cocaine. Johnson stated that he and Naranjo tried to sell the entire kilogram. They sold part of it and returned the unsold balance to Ney.

In 1985, Johnson stopped trafficking in cocaine and limited his illicit drug activity to marijuana. That year, Johnson and Naranjo established a corporation for the purpose of importing lumber from a mill owned by Naranjo's father in Columbia. The first shipment of lumber arrived in 1986, before the partners rented a warehouse. The shipment was stored in a shed adjacent to Johnson's residence until it was sold.

B. Count 2

Johnson and Naranjo then rented a warehouse in Longview, Texas. A second shipment Two or three months later, another container of lumber arrived from abroad and was stored at the warehouse. According to Johnson, a crew from Miami, supervised by an individual named "Henry," arrived at the warehouse to remove the false wall. They pulled off the front wall of the container, revealing a compartment containing a number of boxes. Members of the work crew and Naranjo told Johnson that the boxes contained 700-800 kilograms of cocaine. The boxes were transferred to a truck by the crew and driven away. Johnson testified that he again received $100,000, and that Naranjo told him that he and Henry had been paid an equal amount of money.

                of lumber arrived, in a large container, transported to the warehouse by truck from Houston.   Johnson testified that he was not present when the container arrived, but that he was told by Naranjo that the container had a false wall, and that 700 to 800 kilograms of cocaine had been secreted in boxes between the false wall and the actual side of the container of lumber.   Johnson testified that two weeks later, Naranjo gave him $100,000 in cash for being part of the smuggling operation, and that Naranjo told him he had received an equal amount of money
                

After another two or three months, another container arrived at the warehouse. The same work crew returned, opened the false compartment, and transferred the boxes from the compartment to their truck. Naranjo told Johnson again that the boxes contained 700-800 kilograms of cocaine. He paid Johnson $50,000, keeping an equal amount of money for himself. Naranjo and Johnson subsequently closed their lumber import business.

C. Count 3

Johnson testified that he met a man named "Roberto" during his lumber import venture with Naranjo, and that in 1988 he and Naranjo obtained cocaine from Roberto in Houston and sold it on consignment. Later in 1988, at Roberto's home, Naranjo revealed plans to fly cocaine to east Texas from Tampico, Mexico. A crew was assembled to off-load the cocaine. One of the crewmen was William Brooks, one of Johnson's former marijuana customers.

In preparation for the venture Brooks purchased a motorhome with funds furnished by Johnson. In early 1989 the airplane landed on a farm-to-market road and stopped at a wheat field. The off-loading crew removed the plastic sacks containing cocaine from the plane and transferred them to a pickup truck, which was driven to a nearby ranch. The next day the cocaine, weighing 789 kilograms, was transferred to Brooks' motorhome. Brooks was to deliver the cocaine to Houston, but his motorhome developed engine trouble outside of Dallas. Johnson rented a truck to transport the sacks of cocaine the remainder of the journey to Houston. Naranjo, who had travelled to Dallas separately, followed Johnson to Houston in his own vehicle.

Johnson and Naranjo arrived in Houston late at night and registered at a motel. The next morning, they distributed some of the cocaine to individuals whom, according to Johnson, Naranjo had previously contacted to accept part of the shipment. Approximately 200 kilograms of the cocaine were transferred from the rental truck to Naranjo's vehicle. The remainder of the cocaine was driven by Johnson in the truck to another location, where he met individuals who drove the truck away. When the truck was returned, it was empty. The next night Johnson, Naranjo, Brooks and another man were paid approximately $150,000.

D. Count 4

In the spring of 1990, Naranjo left for Columbia. He returned to Longview, Texas, with a plan to smuggle cocaine from Guatemala to Longview in metal containers hidden in the air brake tanks of trucks. Johnson testified that Naranjo shared this plan with him, and told him that they needed local people to obtain a warehouse and to replace the cocaine-laden air brake tanks with new tanks. Johnson recruited Brooks and Lanier to participate in this scheme. With funds furnished by Johnson, Brooks rented a warehouse in Longview and purchased tools needed to dismantle the air brake tanks.

The first two trucks arrived at a motel in Longview in mid-1990. The drivers notified Naranjo of their arrival, and Naranjo contacted Johnson, Brooks, Lanier and Guillermo Naranjo (another brother). Two of the men drove the trucks from the motel to the warehouse. Lanier removed the air brake tanks and installed replacements. Brooks, Johnson and Guillermo Naranjo assisted him. Brooks then took the tanks to his land in Marion County, Texas, where he and Lanier cut the tanks apart. Inside the tanks were large metal boxes which contained metal foil sealed pouches. Johnson testified that cocaine was contained in the packages. The packages of cocaine were stored in inoperative deep freezers buried in the ground.

Every four to six weeks, additional trucks arrived and the process was repeated. When 300-500 kilograms of cocaine were accumulated, the containers would be removed from the deep freezers and driven to a roadside park where a tractor-trailer was parked. The tractor-trailer would contain a legitimate cargo destined for New York, and would be driven by a man known as "Henrietta." According to Johnson and Brooks, the defendant Naranjo would drive Henrietta around the area while Johnson, Brooks and Lanier transferred the cocaine into his tractor-trailer. This procedure was repeated on several occasions.

Johnson testified that Naranjo handed him two suitcases full of money that had been delivered to Naranjo by Henrietta. Naranjo asked Johnson to keep the suitcases until people from Guatemala came for them, and told him that they contained about $1,000,000. Johnson took the suitcases home, opened them, and saw the bundles of cash held together by rubber bands. He took photographs of the money. Two days later, Naranjo retrieved them and said that he would give the money to someone named "Chino' " who was from Guatemala.

Approximately 20 truck shipments arrived in Longview during the spring, summer and fall of 1990. All were successfully dismantled, and the cocaine was transferred to Henrietta without incident. Johnson testified that he and Naranjo were paid $1,700 to $2,500 per truck for their supervisory roles. Lanier stated that he was paid about $1,500 per truck. The operation was discontinued when...

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