U.S. v. Robles

• Decision Date: 14 September 1994
• Docket Number: No. 93-2151,93-2151
• Citation: 45 F.3d 1
• Parties: UNITED STATES, Appellee, v. Jose ROBLES, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1

45 F.3d 1

UNITED STATES, Appellee, v. Jose ROBLES, Defendant, Appellant.

No. 93-2151.

United States Court of Appeals, First Circuit.

Heard Sept. 14, 1994.

Decided Jan. 20, 1995.

Certiorari Denied March 27, 1995.

See 115 S.Ct. 1416.

Heidi E. Brieger, Asst. U.S. Atty., with whom Donald K. Stern, U.S. Atty., was on brief, Boston, MA, for appellee.

John L. Roberts, Springfield, MA, by appointment of the Court, for appellant.

Before SELYA, Circuit Judge, CAMPBELL, Senior Circuit Judge, and STAHL, Circuit Judge.

LEVIN H. CAMPBELL, Senior Circuit Judge.

Defendant-Appellant Jose Robles appeals from his conviction after a jury trial in the district court and sentence for cocaine-related offenses. We affirm in all respects.

I. BACKGROUND

A. Facts

Viewed in the light most favorable to the government, see United States v. Argencourt, 996 F.2d 1300, 1303 (1st Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 731, 126 L.Ed.2d 694 (1994), a reasonable jury could have found the following facts. In February 1992, Robles began working as a houseman at the Bostonian Hotel in Boston, Massachusetts. During his employment there, Robles befriended another houseman, co-defendant Marlio Motta. Motta then resided at 59 Blossom Street, Chelsea, Massachusetts, but he was a citizen of Colombia, where his family resided.

In the fall of 1992, Robles and Motta agreed to import cocaine from Colombia to Boston by having Motta's family in Colombia conceal the cocaine within a metal cylinder and then ship the cylinder to Boston. Around November 1992, Robles and Motta invited Robles' cousin, Orlando Figueroa, to 35 Westwind Road, Dorchester, Massachusetts, an apartment leased by Robles' girlfriend, Elizabeth Diaz, and occupied, at least occasionally, by Robles. Robles and Motta asked Figueroa if he would help them retrieve the cylinder by putting his name on the shipping papers as the consignee. They told Figueroa that they needed someone--like Figueroa--with an identification card in whose name the shipment could be sent. Robles and Motta told Figueroa that once the cocaine arrived in the United States, they wanted him to appear at the air cargo facility at Boston's Logan Airport, show his identification to Customs officials to prove that he was the consignee, and then take custody of the package. In return for his assistance, Robles and Motta offered to pay Figueroa a total of $10,000. Figueroa agreed to take part as requested.

On or about December 10, 1992, the cylinder, shipped via Challenge Air Cargo from Bogota, Colombia via Miami, Florida arrived at the Continental Airlines Air Cargo Facility at Logan Airport, Boston, for a consignee identified on the shipping documents as "Orlando Figueroa" of 29 Westwind Road, Dorchester, Massachusetts. This was not Figueroa's address, but rather the address of Jose Robles' family. The cylinder was contained within a wooden crate.

At about 1:00 p.m. on December 14, 1992, United States Customs Senior Inspector Lawrence Campbell, assigned to the Contraband Enforcement Team, conducted a routine inspection of the crate at Logan Airport. He noticed that the crate was coming from a country that he recognized as a source country for narcotics. Campbell also took note that, according to the Challenge Air Cargo airway bill, the crate contained a metal machine part stated to be without commercial value, and shipped without insurance. In addition, Campbell noticed that the machine part was destined for a residential, rather than a commercial, address. Finally, Campbell determined that the shipping costs ($212) exceeded the declared Customs value ($150) of the item.

That same afternoon, Motta, Robles, and Figueroa drove to Logan Airport in Motta's girlfriend's car to pick up the package. Robles and Figueroa entered the Continental Airlines terminal at approximately 4:45 p.m., and Robles inquired of a Continental Airlines employee, Robert Bennett, about the status of the package. Mr. Bennett told Robles that the shipment had arrived, but that it was not yet ready to be released. Mr. Bennett told Robles to return to pick it up the following day.

Meanwhile, in light of what he considered to be suspicious circumstances surrounding the shipment of this package, Campbell decided to conduct further inspection. The crate was removed to the Customs Facility at Sealand in South Boston, Massachusetts in the late afternoon of December 14. There it was subjected to x-ray testing, which proved inconclusive. A drug detection dog who sniffed the crate did not alert to the presence of narcotics. Campbell then manually examined the cylinder by tapping it on both ends, which sounded solid, and then by tapping it in the middle, which, he testified, produced a completely different, "hollow" sound. He then decided to drill into the cylinder to determine whether there was contraband concealed within. He first attempted to drill into the ends of the cylinder, but without success; he stated that the drill was "burning more than anything else." However, when he attempted to drill into the center of the cylinder, the drill bit "went straight through" and emerged covered with a white powdery substance. A field test of the substance was positive for the presence of "some sort of opium alkaloid."

Customs agents then transported the cylinder to a machine tool shop in Norwood, Massachusetts for further examination. At approximately 8:00 p.m. on December 14, they succeeded in drilling a one-inch hole into the center of the cylinder. Over the next several hours, Customs agents extracted approximately 2.75 kilograms of cocaine from the cylinder, finally completing the job at about 1:00 a.m. on December 15. In addition, they removed a piece of carbon paper from the cylinder. From experience, they knew that carbon paper was commonly used by smugglers in order to interfere with x-ray examinations. They then poured flour and a small amount of cocaine back into the cylinder, sealed it, repainted it, and repacked it into its shipping crate in order to attempt a controlled delivery ¹ to the listed consignee.

On the morning of December 15, Customs agents transported the crate containing the cylinder to the Continental Airlines Air Cargo facility. That same morning, either Robles or Figueroa contacted a friend, Luis Serrano, and asked him to drive Robles and Figueroa to the airport to retrieve a package. Robles, Figueroa, and Serrano arrived at the Continental terminal at approximately 10:55 a.m. Robles and Figueroa entered the building, and Robles inquired at the counter about the status of the package. Mr. Bennett told Robles that the package would be available for release at 1:00 p.m. that afternoon.

At approximately 1:20 p.m., Robles, claiming to be Figueroa, called the Continental Air Cargo facility and asked to speak with the manager. Special Agent Protentis of the United States Customs Service, acting in an undercover capacity, took the phone call. Robles, who again identified himself as Figueroa, was informed by Protentis that the package was ready to be picked up. He informed Robles that Robles was first required to bring the necessary paperwork to the Customs officials in order to secure the package's release. Once Customs had cleared the package, he said Robles should return to the Continental Air Cargo facility with the paperwork, and then the package would be released to him.

Shortly thereafter, Robles called Motta at the Bostonian Hotel. Motta told Robles to hail a taxi, and, with Figueroa, pick up Motta at the Bostonian Hotel. Robles did so. After Robles and Figueroa picked up Motta at the Bostonian, they took the taxi to the Continental freight facility at Logan, arriving at about 3:00 p.m.

Robles and Figueroa entered the facility, leaving Motta in the taxi. Robles spoke to the Continental employees. He was told by them what he needed to do to clear the package through Customs. He and Figueroa then returned to the cab, which drove them to the Customs Office. At the Customs Office, Robles and Figueroa obtained clearance for release of the package, which they then took back to Continental in the cab.

Once back inside the Continental freight facility, Robles arranged with Continental employees for the package to be brought to the cab. After loading the crate into the cab, Robles, Motta, and Figueroa left Logan Airport. Customs Agents intended to seize the crate and the cab's passengers following a "controlled delivery." However, the agents lost sight of the taxi at some point in the Callahan Tunnel. Figueroa testified that after leaving Logan Airport the cab traveled to the rear of 35 Westwind Road, where Robles and Motta unloaded the crate into the apartment.

Prior to the shipment of the package, sometime in December 1992, Motta had asked Jeff MacDonald, an engineer at the Bostonian Hotel, whether he could borrow a "Sawzall" power saw from the hotel. MacDonald agreed to lend the saw to Motta.

After Robles and Motta unloaded the crate into the apartment at 35 Westwind Road, they attempted to use the saw to cut through the cylinder, but were unable to get the saw to operate properly. Unable to get to the cocaine, Robles, Motta, and Figueroa left the apartment.

Also on December 15, Agent Gildea obtained a search warrant to search for cocaine and drug paraphernalia at 29 Westwind Road, the home of Robles' parents, and the home to which the crate was addressed. The search was carried out at approximately 5:30 p.m., but nothing incriminating Robles was found. On December 17, 1992, following conversations with Figueroa, law enforcement agents obtained a search warrant for the premises at 35 Westwind Road. During the execution of that search warrant on the same day, the agents seized the crate and the cylinder, which had been placed in a utility closet on the first floor of the apartment. In addition, the agents found a tool box made of red-painted metal and labeled with the words "HEAVY-DUTY SAWZALL" in an upstairs...