U.S. v. Rodriguez

Citation509 F.2d 1342
Decision Date20 March 1975
Docket NumberNo. 74--3031,74--3031
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Frank RODRIGUEZ, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

William A. Daniel, Jr., Miami, Fla., for defendant-appellant.

Robert W. Rust, U.S. Atty., Charles Jaffe, Asst. U.S. Atty., Miami, Fla., Karen L. Atkinson, Crim. Div., U.S. Dept. of Justice, Miami, Fla., for plaintiff-appellee.

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

Before DYER, MORGAN and GEE, Circuit Judges.

LEWIS R. MORGAN, Circuit Judge:

In this case appellant, convicted of conspiracy to import cocaine, charges that certain errors were committed during the course of his trial. Finding his allegations meritless, we affirm his conviction.

I.

Viewed in the light most favorable to the government, see Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1941), the facts are these. In January, 1971, Al Nardone, a confidential informant, met Jaime Castello-Yepez (hereinafter 'Yepez') on an airplane flight from New York to Miami. In response to Nardone's inquiry, Yepez indicated that a 'kilo' of cocaine could be purchased in the United States for about $8,000, gave Nardone his card, and told Nardone to contact him at the Hotel Bradford in Miami.

In July of 1971, Nardone called the Hotel Bradford and a meeting was arranged between Aurelio Castro and Juan Arteaga, who claimed to be Yepez's associates, and Nardone and Peter Scrocca of the Drug Enforcement Administration, working under cover. At the meeting on July 13, 1971, Scrocca told Castro and Arteaga that he wanted to buy 100 kilos of cocaine. Castro said that there would be no problem, but he would have to contact Yepez. During the conversation Castro gave Scrocca Frank Rodriguez's name and phone number. He also said that Rodriguez was Yepez's man in Miami and Scrocca should contact him if there were any problems.

After making arrangements by phone, Nardone, Scrocca, and Agent William D. Hudson met with Rodriguez on July 16, 1971. At this meeting Scrocca told Rodriguez that he (Scrocca) had made arrangements with Castro and Arteaga for the shipment of a quantity of cocaine but that they had departed prematurely, and he had no knowledge if the final arrangments had been made. Rodriguez replied that he did not know Castro or Arteaga, but that he represented Yepez in Miami and would contact Yepez in Ecuador to resolve Scrocca's problem.

On July 20, 1971, Hudson and Nardone again met with Rodriguez who said that he was going to Ecuador and would have Yepez call Nardone to straighten the matter out. Within a day or two Yepez called Nardone to devise a method of payment for the cocaine. A period of negotiation followed. During one of the subsequent conversations, Yepez indicated that Nardone should pay Rodriguez for the drugs.

In late August Nardone met Yepez in Ecuador at the latter's invitation. Yepez showed Nardone his cocaine laboratory. In March 1972, Nardone again returned to Ecuador to negotiate with Yepez who again indicated that payment should be made to Rodriguez.

On July 13, 1973, Scrocca and other agents met Yepez in Kingston, Jamaica. During this meeting, Scrocca made plans to purchase 100 kilos of cocaine a month from Yepez. Yepez indicated that Rodriguez was in narcotics traffic with him but would not take an 'active, out-front part' in this deal because of Internal Revenue problems. Yepez also told the agents that a shipment of cocaine was to arrive in New York around June 29 by boat and that Scrocca could have part of the shipment. Yepez stated that the boat would make intermediate stops in Jacksonville and Baltimore.

At the end of June, 1973, Rodriguez contracted with Harold Wright to pick up cartons that were to arrive at the port of Baltimore on July 3, 1973, and transport them to New York. Rodriguez told Wright which broker to contact in Baltimore, gave him a bill of lading for the boxes, and $100 to cover the shipping charges. Rodriguez instructed Wright to pick out 30 of the boxes in the shipment of 450, explaining that these could be identified by the configuration of the staples holding the boxes together.

On July 3, 1973, cocaine was discovered during a customs search in the boxes Wright was to pick up. As a result, when he arrived at the pier and claimed the boxes, Wright was arrested.

On August 26, 1973, Scrocca met with Frank Rodriguez and asked him what had happened to the cocaine that Yepez had shipped. Rodriguez said that he would find out and suggested a meeting the next day. This meeting occurred on August 28, 1973, at which time Rodriguez told Scrocca that Yepez had been arrested in Ecuador but would probably be released in the near future.

On February 25, 1974, Nardone, Scrocca, and Agent James Milford visited Rodriguez at his home. Scrocca told Rodriguez that he knew Rodriguez was Yepez's partner and that he was shipping cocaine to New York. Rodriguez replied that all this was true. Rodriguez said that he 'was aware of everything that Castello-Yepez told anyone, both in South America and in the United States, and he was well aware of the pending deal.' He also said that Yepez would probably be out of jail very soon and suggested that, when Yepez was released, they hold a meeting in Mexico or Panama to resolve all problems relative to both their current business and any future business they might conduct.

On March 14, 1974, Rodriguez, Yepez, Wright, Castro, Arteaga, and Piedad Romero de Herrera were charged in a one-count indictment with conspiracy to import cocaine in violation of 21 U.S.C. §§ 952 and 963. Yepez, Castro, Arteaga, and de Herrera were never apprehended.

At the subsequent trial, Wright pleaded guilty and testified as to all of the instructions Rodriguez had given him. Nardone, Scrocca, Hudson, and Milford also testified as to their conversations with the named defendants, recounting both their comments and those of the alleged co-conspirators. The jury returned a verdict of guilty and appellant was sentenced to ten years imprisonment and a special parole term of three years.

Rodriguez appeals, alleging that certain errors were committed in his trial.

II.

Appellant first contends that extrajudicial statements made by co-defendants Castro, Arteaga, and Yepez, outside the presence of the appellant were improperly admitted into evidence. We hold that these statements, although hearsay, were properly admitted as declarations of co-conspirators made during the course of the conspiracy and in furtherance of it.

Of course, the government must introduce sufficient independant evidence of the existence of a conspiracy and of appellant's participation therein before the judge may allow declarations of the co-conspirator, made outside of the presence of the defendant, to go to the jury. United States v. Apollo, 476 F.2d 156, 157 (5th Cir. 1973); Montford v. United States, 200 F.2d 759, 760 (5th Cir. 1952). The test of sufficiency is whether the other evidence, aliunde the hearsay, would be sufficient to support a finding that the defendant himself is a conspirator--that is, whether the government has established a prima facie case of the existence of a conspiracy and of defendant's participation therein. United States v. Oliva, 497 F.2d 130, 132--33 (5th Cir. 1974).

The trial judge below properly required that the government show the appellant's participation in the conspiracy by evidence other than hearsay before allowing the jury to hear any of the extrajudicial statements of the co-conspirators. The government met this burden by having Agent Scrocca describe the July 16, 1971 meeting with Rodriguez. The judge then held that the government had made a sufficient showing that Rodriguez was a member of the conspiracy. We believe the judge's ruling that sufficient evidence of a conspiracy and of defendant's participation therein had been presented was correct. 1

Appellant next contends that the trial court erred in admitting into evidence extrajudicial declarations of co-conspirators which were not made in furtherance of the conspiracy charged in the indictment. Of course, declarations by co-conspirators are admissible under the conspiracy exception to the hearsay rule only if they are made in furtherance of the conspiracy and during its pendency. Paoli v. United States, 352 U.S. 232, 237, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957); Lutwak v. United States, 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593 (1952); Holsen v. United States, 392 F.2d 292, 298 (5th Cir. 1968), cert. denied, 393 U.S. 1029, 89 S.Ct. 640, 21 L.Ed.2d 573 (1969).

Appellant claims that the references to Rodriguez made by Castro and Arteaga--although in furtherance of a conspiracy--were not made in furtherance of the conspiracy with which Yepez, Wright, and Rodriguez were charged because the two declarants left town before consummating the deal. The record indicates, however, that the meeting between the agents and Castro was but the first step in one continuous conspiracy to import cocaine. Rodriguez entered this conspiracy rather than undertaking a new one when he followed up the initial negotiations by putting the agents in touch with Yepez.

Appellant also argues that it was improper to permit Agent Miller to testify as to statements made by Wright after Wright's arrest, since the conspiracy had been terminated by the seizure of cocaine in Baltimore, and Wright's statements were therefore not made during the pendency of the conspiracy.

The indictment against Rodriguez, however did not indicate that the conspiracy terminated with the seizure of cocaine; rather, it charged a conspiracy continuing until March 14, 1974. Plainly, Rodriguez's actions in no way indicated a conclusion on his part that the conspiracy had terminated with the seizure in Baltimore. Rather, in the meeting of February 25, 1974, he indicated that he would arrange a future meeting between the agents and Yepez to discuss...

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