U.S. v. Toro, 87-2117
| Decision Date | 18 March 1988 |
| Docket Number | No. 87-2117,87-2117 |
| Citation | 840 F.2d 1221 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Jose Efrain TORO, Jr., Michael F. Pickel, Jack Peoples, Mario de la Pava and Robert Edwin Brunk, Jr., Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Mervyn Hambur, Atty., Crim. Div., Appellate Section, Dept. of Justice, Washington, D.C., Henry K. Oncken, U.S. Atty., James R. Gough, Asst. U.S. Atty., Houston, Tex., for U.S.
Joe L. Hernandez, Houston, Tex. (Court-appointed), for Maria de la Pava.
David Cunningham, Houston, Tex. (Court-appointed), for Robert Edwin Brunk, Jr.
Appeal from the United States District Court for the Southern District of Texas.
Before GARWOOD, and JONES, Circuit Judges, and HUGHES, * District Judge.
Appellants challenge on numerous grounds their convictions for violating federal narcotics laws. We AFFIRM.
On January 8, 1985, DEA agent Michael Spasaro drove to a Houston hotel where he Spasaro never heard from Pickel again until November 26, 1985. 2 On that date Spasaro received a communication on his pager system. Spasaro returned the call, hung up when he noticed the caller was Pickel, and then called Pickel on an undercover phone. Pickel asked if Spasaro could move five tons of "marlboros." Spasaro said he would think about it and asked if the deal involved any "hersheys." 3 Pickel said it might. Spasaro then took three pay telephone numbers from Pickel and said he would call Pickel back. 4 Spasaro called Pickel fifteen minutes later and taped the conversation, during which Pickel asked if Spasaro could move five tons of "smoke" and some "nose stuff." 5 Spasaro expressed interest in the deal and in meeting Pickel's friend who was arranging the deal.
was introduced by a confidential informant to defendant Pickel. Pickel understood that Spasaro was a large-scale drug trafficker with sufficient resources to put together a cocaine laboratory. Pickel informed Spasaro that he represented wealthy individuals who were interested in getting into the cocaine business and building a cocaine laboratory. Spasaro advised Pickel that they would need a large secluded ranch and an air strip. At a subsequent January meeting, Pickel wanted to know total costs and whether Spasaro could supply cocaine paste. Spasaro informed Pickel of the total costs (including Spasaro's fee), and said he could supply the cocaine paste. At one point, Pickel said that his clients might have the needed property. The two men again met in April, at which time Pickel advised Spasaro that he was going to the West coast to meet with his clients.
On December 4, 1985, Pickel introduced Spasaro to his "friend," defendant Peoples in Houston. Peoples indicated that he was planning on importing 10,000 pounds of marijuana from Colombia. Since Peoples' buyer only wanted 1,500 pounds, Peoples wondered if Spasaro's people wanted the rest. Spasaro expressed interest and asked whether he could get some cocaine imported as well. Peoples said it might be possible.
Spasaro met with Pickel the next day. Pickel said that Peoples had a lot of connections in Colombia and that he knew the right people. Spasaro agreed to pay Pickel five dollars per pound of imported marijuana if the deal went through. Pickel called Spasaro that night to arrange another meeting with Peoples for the next day. As agreed, the three men again met on December 6 and discussed the possibility of having Spasaro send a large plane or boat to Colombia to pick up a large amount of marijuana or to send a small plane to Colombia to pick up a large amount of cocaine. Peoples agreed to attempt to obtain $50,000-$100,000 to help finance the transportation costs.
During a taped telephone conversation between Spasaro and Pickel on December 9, Pickel referred to a "joint venture on the real estate deal" and a "chocolate factory." Spasaro testified that the phrases were codes for the drug deal and cocaine, respectively, and that Pickel was using code words because he was using his office phone.
Spasaro and DEA agent Nick Console met with Pickel and Peoples on December 11. 6 Peoples said he could not raise $100,000 but that he was going to go to Colombia to arrange credit for the cocaine deal. Peoples also asked if Spasaro knew any Miami bankers, as some of his Colombian Spasaro and Peoples met alone on December 13. The two focused their attention on importing a load of cocaine and obtaining credit for Peoples. According to Peoples, the Colombians wanted money before the cocaine left the country. Spasaro rejected that plan. Peoples also said he was going to Colombia soon and would be flying through Miami to meet Spasaro's cousin, the banker. Peoples confirmed that he was going to Miami during a taped telephone conversation with Spasaro on December 16. Spasaro and DEA agent Larry Lyons met with Peoples the next day at a hotel near Houston's Hobby Airport. Peoples again confirmed his plans to leave for Colombia the next day and to fly through Miami to meet Spasaro's cousin. He also informed Spasaro that he knew someone who had twenty kilograms of cocaine available. Spasaro and Peoples agreed to split the profit if Peoples could arrange to have the twenty kilograms sent to Houston.
friends in Miami desired to launder cash of up to $1,000,000 daily. 7 Spasaro indicated that he had a cousin who was a Miami banker
Spasaro, who was flying to Miami separately, agreed to stay in touch with Peoples through Peoples' friend and driver, defendant Toro. During taped conversations with Toro and Peoples on December 18 or 19, Spasaro discussed the possibility that Peoples could meet his banker-cousin at a certain place in Miami and described his cousin. During one of these conversations, Spasaro reminded Peoples to pursue the "bigger offer" with his Colombian contacts. Spasaro testified that the "bigger offer" was a proposed deal where Spasaro and Peoples would attempt to import two hundred kilograms of cocaine, in addition to the second deal to import twenty kilograms.
Spasaro and DEA agent Barnes met with Peoples in Miami on December 24 after Peoples returned from Colombia. Peoples said he had arranged for them to receive five hundred kilograms of cocaine at a cost of $6,500-$7,500 per kilogram. 8 Peoples thought that the Colombians would agree that the money could be placed in a joint safety deposit box in Houston.
Spasaro and DEA agent Console met with Peoples and Toro in Houston on December 30, and Spasaro and Peoples met again the next day. During both meetings the participants discussed the proposed deal to import five hundred kilograms of cocaine and Peoples' planned return to Colombia in January 1986. Spasaro also adamantly refused to send any money to Colombia. Additionally, Spasaro and Peoples discussed whether Peoples' Colombian friends could begin laundering money through Spasaro's cousin in Miami.
Peoples and Spasaro flew to Miami on January 6, 1986, where Peoples met separately with a Colombian friend and with Spasaro and his cousin to discuss money laundering. 9 The two men returned separately to Houston, where they met on January 13 to discuss Peoples' next-day flight to Colombia and plans surrounding the anticipated drug deal.
Spasaro received two pager calls from Pickel on January 20. Spasaro returned the calls and learned that Peoples had returned from Colombia and was trying to reach Spasaro. Later that day, Spasaro met with Peoples. Peoples said he had arranged for a shipment of two hundred kilograms of cocaine, with a tentative pick-up date of February 3. Spasaro was to initially pay $1,300,000 and an additional $1,950,000 two weeks after distribution.
Spasaro and DEA agent Bohman met with Pickel on January 21. Spasaro informed Pickel that he would have some Spasaro met with Peoples in Miami on January 22. Peoples expressed interest in arranging a meeting in Mexico City between Spasaro and the Colombians to discuss transportation and logistics aspects of the deal. The two men had similar discussions during a meeting in Houston on January 27 after Peoples returned from meeting with the Colombians. During either this meeting or a meeting on February 3, Spasaro learned that the Colombians would not travel to Mexico City because they were wanted by the DEA and feared extradition. The parties thereafter agreed to meet in Aruba.
"hersheys" available around February 3. Pickel expressed interest. Spasaro said the price would be $21,000 per kilogram. Spasaro also asked that Pickel furnish a list of his buyers' names before the deal transpired so Spasaro could "check them out" to make sure Pickel was not selling to police.
Spasaro and DEA agent Lyons flew to Aruba on February 6. Peoples introduced his friend "Sonny" (an unindicted co-conspirator in this case) to Spasaro. Sonny told Spasaro that he was aware that Spasaro was in Aruba to meet with some Colombians to discuss transporting a large amount of cocaine to Houston, and that Sonny would assist in coordinating the meeting. Spasaro also met Khalil Choucair, another friend of Peoples', who said he was a broker between Peoples and the Colombians. On February 6 and 7, Spasaro and Lyons met with Sonny, Choucair, Peoples, defendant de la Pava, and co-defendant Figueroa. 10 Spasaro told the other individuals that he understood that the deal called for him to buy 200 kilograms of cocaine at $6,500 per kilogram, that Peoples had arranged financing, and that the only remaining problem was getting an airplane from Houston to Colombia. De la Pava refused to sell any cocaine at less than $7,500 per kilogram, which was $1,000 more than the price Peoples had quoted to Spasaro. The parties then settled on a price. De la Pava explained how he flew the cocaine...
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