U.S. v. Rivera-Santiago
| Decision Date | 09 December 1988 |
| Docket Number | RIVERA-SANTIAGO,87-1583,CANCEL-HERNANDEZ,D,87-1649 and 87-1650,Nos. 87-1580,ORTIZ-ORTI,ROMERO-LOPEZ,87-1649,87-1650 and 87-1582,ROMERO-LOPE,CASTRO-POUPART,87-1581,s. 87-1580 |
| Parties | UNITED STATES of America, Appellee, v. Antonio, a/k/a Junior Vivique, Defendant, Appellant. UNITED STATES of America, Appellee, v. Nestor, a/k/a Papo, Defendant, Appellant. UNITED STATES of America, Appellee, v. Edwinefendant, Appellant. UNITED STATES of America, Appellee, v. Henry, a/k/a Quique, Defendant, Appellant. UNITED STATES of America, Appellee, v. Luis, a/k/a Nando, Defendant, Appellant. UNITED STATES of America, Appellee, v. Manuelefendant, Appellant. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
Ricardo L. Rodriguez Padilla for appellant Antonio Rivera-Santiago.
Eric M. Cohen with whom Jack R. Blumenfeld and Blumenfeld & Cohen, Coral Gables, Fla., were on brief for appellant Nestor Cancel-Hernandez.
Rafael F. Castro Lang, San Juan, P.R., by Appointment of the Court, for appellant Edwin Romero-Lopez.
Seth M. Kalberg, Jr., Boston, Mass., by Appointment of the Court, for appellant Henry Castro-Poupart.
Francis C. Newton, III, Arlington, Mass., by Appointment of the Court, for appellant Luis Romero-Lopez.
Miriam Ramos-Grateroles, by Appointment of the Court, for appellant.
Mervyn Hamburg, Dept. of Justice, Washington, D.C., with whom Daniel F. Lopez-Romo, U.S. Atty., Hato Rey, P.R., was on brief for the United States.
Before BOWNES, BREYER and SELYA, Circuit Judges (Nos. 87-1580, 87-1581, 87-1583, 87-1649 and 87-1650).
Before BOWNES, BREYER and TORRUELLA, Circuit Judges (No. 87-1582).
The six defendants-appellants were all convicted by a jury under count one of a nine count indictment of being part of a conspiracy with intent to possess and distribute amounts of marihuana, 1 in violation of 21 U.S.C. Secs. 841(a)(1) and 846. The marihuana had been smuggled into Puerto Rico from Colombia on four different occasions. Each of the defendants was also found guilty of one or more of the other eight substantive counts which charged aiding and abetting in the importation of marihuana (counts 2, 4, 6, and 8) and aiding and abetting the possession of marihuana with intent to distribute (counts 3, 5, 7 and 9). Each of the appeals will be discussed separately but before considering the individual cases, an exposition of the genesis, operation and demise of the smuggling venture which was the source of the marihuana supply is necessary as a background.
The chief witness for the government, Jose E. Panzardi-Alvarez, a/k/a Polo, was the principal planner, organizer and director of the marihuana smuggling venture and the conspiracy to possess and distribute it. He was named in the indictment as an unindicted conspirator. The source of supply for the enterprise was Jacobo Mendez-Compo who resided in Colombia. All of the marihuana brought to Puerto Rico came from Colombia and was sold to Panzardi by Mendez. Mendez was named as a defendant in all nine counts of the indictment. He is not a party to this appeal. Panzardi's chief lieutenant, Cesar Castro-Gomez, was also indicted on all nine counts; he is not a party to this appeal.
Panzardi, who had prior experience in drug trafficking, decided in late 1981 to smuggle marihuana into Puerto Rico for distribution and sale. He told Nestor Cancel Hernandez, one of the appellants and an acquaintance of Panzardi, that he needed someone who knew about airplane landing fields in Puerto Rico. Cancel introduced him to Castro and the venture began.
The first smuggling operation, however, was by sea, not by air. Panzardi owned a large Chris Craft motorboat, the Survive, which he decided to use for smuggling. He contacted Mendez in Colombia and arranged to rendezvous in January of 1982 with a ship from Colombia carrying a load of marihuana. This operation, however, went awry. The Colombian ship developed engine trouble and the marihuana had to be jettisoned when the Coast Guard arrived to render assistance.
Panzardi was not one easily discouraged. He telephoned Mendez and arrangements were made within two weeks of the failed smuggle to send another boatload of marihuana to be transferred to Panzardi's boat. The rendezvous point was off Saba Island, one of the Leeward Islands east of St. Croix. The plan was that the marihuana would be transferred to Panzardi's boat, the Survive, which would take it to Palmas del Mar, a resort development on the east coast of Puerto Rico near the town of Humacao. After two unsuccessful attempts to contact the Colombian ship, rendezvous was made on the third try and the marihuana was off-loaded to the Survive. The marihuana was landed accorded to plan but not without difficulty. The weight of the marihuana caused the Survive to ride low in the water and it took on water, which caused some damage to the marihuana. The Survive was anchored offshore and the marihuana loaded on a small boat for the final In April 1982, Panzardi, his chief lieutenant, Castro, and Luis Viera Lourido, another indicted defendant not a party to this appeal, and three women friends went for a ride on the Survive to celebrate the success of the smuggle. During the celebration the Survive ran aground on some rocks. The celebrants survived, but the Survive was wrecked beyond repair. Thus ended Panzardi's smuggling by sea. He now turned to the air.
transfer to land. After the marihuana had been brought ashore it was loaded on two vans and a truck and taken to a house in Humacao for storage before distribution. The entire shipload weighed between 8,500 and 9,000 pounds.
Mendez was contacted by Panzardi in the late summer of 1982 and arrangements were made to have a load of marihuana picked up by plane in Colombia and flown to Puerto Rico. Panzardi owned a Piper Aztec, which was to be used for the smuggle. He hired two pilots with previous marihuana smuggling experience, Shaun Baldacchino and Fred McNulty. Both are named in the indictment as being part of the conspiracy. Baldacchino entered into a plea agreement with the government and testified at the trial. McNulty is not involved in this appeal.
In the middle of September, Baldacchino and McNulty flew the Piper Aztec to the pick-up site in Colombia. About one thousand pounds of marihuana were picked up and flown to a landing strip at Palmas del Mar. The marihuana was transferred to a van owned by Panzardi and then driven to a house for storage and distribution. The plane was left on the airstrip after the marihuana had been loaded. Panzardi intended to pick it up the next day. Unfortunately for him, United States Custom Officers found the plane and confiscated it. Panzardi was eventually able to regain possession of it, but the plane was no longer used for marihuana smuggling.
Panzardi purchased a Twin Beech aircraft in early October. It was flown to St. Thomas and parked there while plans were made for the next smuggle. Mendez was contacted again and arrangements were made to pick up another load of marihuana in Colombia and to fly it to the landing strip at Palmas del Mar. The same pilots were used. This smuggle went smoothly. Fifteen hundred pounds of marihuana were brought to Palmas del Mar, unloaded, stored and then distributed.
The final smuggle took place in December of 1982. A load of about eighteen hundred pounds of marihuana was picked up in Colombia and flown to Palmas del Mar in the Beechcraft by the same pilots. This time, however, there was a new development. After the marihuana had been placed aboard a truck and driven away, the police arrived. The plan, as in the prior operation, had been for the pilots accompanied by two women and Panzardi and his mistress, Gloria Nieves Baez, to fly to St. Thomas to allay suspicion and then split up. This time the group went to the police station in Humacao instead of St. Thomas. After questioning, all were released. The marihuana which had been smuggled in on the plane was distributed and sold. Thus, the final smuggle was a success.
In addition to Panzardi there were also other participants in the smuggling venture who testified for the government: Francisco Vega Estrado testified in detail about the smuggle by sea. Louis Viera Lourido was also involved in the sea smuggle. Carlos Riollano knew Panzardi as a fellow marihuana distributor. He learned about Panzardi's plan to smuggle marihuana by plane and introduced the pilot, McNulty, to Panzardi. Hector Jesus Padilla Navarez was familiar with some of the participants. As already noted, Shaun Baldacchino was a government witness. The other government witness that had first-hand knowledge of the smuggling operations was Gloria Nieves Baez, Panzardi's paramour.
Before discussing the individual cases, we set forth the legal principles that apply to all the appeals. First, we must review the evidence in the light most favorable to the government, including any legitimate inferences which can be drawn from it to determine whether a rational jury could The sine qua non of a conspiracy is the agreement between the conspirators, "and it is therefore essential to determine what kind of agreement or understanding existed as to each defendant." United States v. Glenn, 828 F.2d 855, 857 (1st Cir.1987) (quoting United States v. Borelli, 336 F.2d 376, 384 (2d Cir.1964), cert. denied, Cinquegrano v. United States, 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555 (1965)). In order to prove that a defendant belonged to and participated in a conspiracy, the government must prove two kinds of intent; intent to agree and intent to commit the substantive offense. United States v. Drougas, 748 F.2d at 15; United States v. Flaherty, 668 F.2d 566, 580 (1st Cir.1981).
have found each defendant guilty beyond a reasonable doubt. United States v....
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