U.S. v. Rios, 87-1344

• Decision Date: 14 July 1988
• Docket Number: No. 87-1344,87-1344
• Parties: 25 Fed. R. Evid. Serv. 301 UNITED STATES of America, Plaintiff-Appellee, v. Alfredo RIOS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 868

842 F.2d 868

25 Fed. R. Evid. Serv. 301

UNITED STATES of America, Plaintiff-Appellee, v. Alfredo RIOS, Defendant-Appellant.

No. 87-1344.

United States Court of Appeals Sixth Circuit.

Argued Jan. 25, 1988.

Decided March 18, 1988.

Rehearing and Rehearing En Banc Denied July 14, 1988.

Kenneth R. Sasse, Detroit, Mich., Joseph I. Stone (argued), New York City, for defendant-appellant.

Michael C. Leibson (argued), Asst. U.S. Atty., Detroit, Mich., for plaintiff-appellee.

Before LIVELY, Chief Judge; JONES and BOGGS, Circuit Judges.

PER CURIAM.

Defendant-appellant, Alfredo Rios, appeals his jury conviction for conspiracy to import cocaine. For the reasons set forth below, we find his arguments to be without merit and, therefore, affirm his conviction.

I.

On April 11, 1986, Alfredo Rios, the defendant, along with twenty-three others, was indicted by a federal grand jury sitting in the United States District Court for the Eastern District of Michigan. Rios was charged only in Count Two of a thirteen count indictment. Count Two alleged a conspiracy to import cocaine in violation of 21 U.S.C. Secs. 952, 960 and 963 (1982). Count Two specifically alleged:

1.) That from on or about January, 1981, until on or about December, 31, 1984, in the Eastern District of Michigan and elsewhere, Stephen A. Hagerman, John H. McCann, III, Roberto C. Jaramillo, Michael Canelas, Jose Cruz and Alfredo Rios, defendants herein, did knowingly, willfully and unlawfully combine, conspire, confederate and agree together and with other persons, both known and unknown to the grand jury, to commit an offense or offenses against the United States, that is, to knowingly, intentionally, and unlawfully import into the United States cocaine, a Schedule II Controlled Substance, contrary to Title 21, United States Code, Section 960; all in violation of Section 963, Title 21, United States Code.

2.) It was part of said conspiracy that Roberto C. Jaramillo would use his position as a Columbia [sic] diplomat to assist Stephen A. Hagerman and John H. McCann, III in taking suitcases and other containers of cocaine through various Customs stations without the suitcases or containers being searched by Customs officials.

3.) It was further part of said conspiracy that Alfredo Rios, Roberto C. Jaramillo, Michael Canelas, Fernando Canelas and Jose Cruz would either act as sources of supply or introduce Stephen A. Hagerman and John H. McCann, III to sources of supply of cocaine in South America.

J.App. at 8-9.

As a result of various pretrial dispositions, including dismissals and guilty pleas, Rios was the only person named in Count Two to stand trial. ¹

On November 3, 1986, Rios's jury trial commenced before the Honorable Barbara K. Hackett. On November 12, 1986, a mistrial was declared when the jury was unable to reach a verdict.

During this trial, various motions were made by the defendant concerning the admission of co-conspirator statements. These statements concerned Rios's involvement in the conspiracy and were allegedly made by co-defendant Stephen Hagerman to John McCann and Michael Canelas, two co-defendants who were testifying for the government pursuant to plea agreements. Judge Hackett received testimony from McCann and Canelas outside the jury's presence. Upon receiving that testimony, she ruled that the government had shown, by a preponderance of the evidence, that a conspiracy existed, that Rios was a member thereof and that the statements in question were made in furtherance of the conspiracy.

Prior to Rios's retrial, both parties stipulated that the testimony and rulings concerning the admissibility of the co-conspirator statements in the first trial would be incorporated into the second trial so as to avoid unnecessary repetition of testimony.

Rios's second trial began on January 6, 1987. At trial, the government once again alleged that Rios had conspired with Stephen Hagerman and others to import cocaine into the United States. Evidence was introduced which indicated that sometime before February 1982, Hagerman became involved in the importation of cocaine from Colombia. This activity allegedly began when John McCann, Hagerman's brother-in-law, requested Hagerman's assistance in developing sources for coal in South America. Hagerman agreed to help McCann with his expenses and to accompany him on his trips. McCann later learned that Hagerman intended to import cocaine from South America into the United States.

On their first trip to Colombia in January 1982, Hagerman and McCann brought back into the United States one kilogram of cocaine. Thereafter, Hagerman asked Anthony Peters, a friend, if he could identify anyone who might provide him with a South American "source." Peters stated that he had been dealing cocaine with an individual named Jose Cruz who had a source named Alfredo "Freddy" Rios. Peters agreed to ask Cruz to arrange a meeting between Hagerman, Cruz and Rios for the purpose of introducing Rios to Hagerman as a potential source of South American cocaine. In February 1982, such a meeting occurred in New York.

Testimony provided at trial by Peters and Cruz established that a deal was struck at that meeting whereby Hagerman would go to South America and meet Rios who, in turn, would introduce him to a cocaine source. Cruz was supposed to make the necessary arrangements, but decided, at the last moment, not to take part in the transaction. Thus, Rios failed to meet Hagerman in South America. However, Cruz testified, he subsequently learned that Hagerman had, in fact, been successful in obtaining cocaine from Rios and his sources.

Thereafter, between February 1982 and October 1983, Hagerman and McCann

made several trips to Colombia where they brought back varying amounts of cocaine ranging from one to fifty kilograms. Based on several conversations he had with Hagerman, McCann testified that at least five of these trips were arranged by an individual identified as "Freddy." McCann testified that these conversations with Hagerman arose because of his concern for their safety. He stated that he wanted reassurance from Hagerman that the people with whom they were dealing would not rob or kill them. Hagerman told McCann that he had met Freddy in New York and had been reassured that Freddy and his people would deliver the cocaine without problems. He stated that Freddy was of Puerto Rican extraction and lived in New York. At a later date, Hagerman placed Freddy's phone number in McCann's personal telephone book. At trial, the evidence showed that the New York telephone number listed in McCann's personal book belonged to Estrella Lopez, the common law wife of Alfredo "Freddy" Rios.

McCann also testified that Hagerman told him that he had an arrangement with Freddy's source whereby Hagerman would pay for one-half of the drugs he wanted and take the rest on consignment and that he was also able to take an equal amount of drugs for Freddy or the people whom Freddy was representing. Hagerman told McCann that he had become the middleman between Freddy and Freddy's Colombian suppliers in that the drugs he and McCann picked up in Colombia were taken to Detroit where Freddy and/or his associates would pick up the portion earmarked for them.

In October 1983, Hagerman and McCann obtained another source of cocaine through Michael Canelas in Bolivia. During that month, Hagerman and McCann, with Canelas's assistance, imported approximately eighty kilograms of cocaine into the United States. Hagerman told McCann that Freddy would be receiving some portion of the Bolivian cocaine. Also, at some point after the October 1983 delivery, Hagerman met with Canelas in Michigan and told him he was unable to pay him because Freddy had not yet paid for the drugs and Freddy was the source of the money for the portion of cocaine which had to be paid up front on the first Bolivian deal. Hagerman identified Freddy as living in New York and of a Puerto Rican background. Hagerman also told Canelas that Freddy was his best source in the United States as he was good for over 100 kilos of cocaine a month.

In September 1984, Hagerman, McCann and Canelas imported over 100 kilograms of cocaine from Bolivia to Monterrey, Mexico and on into Michigan. During this trip, Hagerman and McCann discovered that they were under investigation. McCann remained in Mexico while Hagerman returned to the United States. Hagerman, however, began to make departure plans.

Telephone records introduced into evidence at trial showed that Hagerman made many phone calls to Rios and vice-versa concerning the Bolivian shipments as well as their other deals. An ongoing relationship between the two was certainly demonstrated by the records introduced and the testimony given.

Prior to the submission of the case to the jury, Rios requested that the court instruct the jury on multiple conspiracies. The court gave the requested instruction to the jury informing them that they might only convict Rios if they found him guilty of the conspiracy charged and not some other conspiracy which might have been proven. Rios made no objection to the wording and/or form of the instruction.

On January 9, 1987, the jury began its deliberations. On January 12, 1987, the jury found Rios guilty as charged.

On March 30, 1987, Judge Hackett sentenced Rios to 15 years imprisonment and ordered him to pay a committed fine of $20,000. On the same day, the defendant filed a timely notice of appeal to this court.

II.

Two issues are presented to us by the defendant for appellate review. We review both questions under limited standards. The question of [w]hether single or multiple conspiracies have been shown is usually a question of fact to be resolved by the jury under proper instructions and to be considered on appeal in the light most favorable to the government. Even if there is a 'variance' in the proofs showing multiple conspiracies rather than a single conspiracy, reversal is required only...