U.S. v. Van Hemelryck
| Decision Date | 30 October 1991 |
| Docket Number | 87-5529,Nos. 87-5501,s. 87-5501 |
| Citation | 945 F.2d 1493 |
| Parties | 34 Fed. R. Evid. Serv. 494 UNITED STATES of America, Plaintiff-Appellee, v. George VAN HEMELRYCK, Golbert Bustamante, Tyrone Giraldo, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellant, v. George VAN HEMELRYCK, Maria Alvardo, Lilacia Marina Bustamante, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Theodore J. Sakowitz, Federal Public Defender, Alison M. Igoe, Asst. Federal Public Defender, Miami, Fla., for Hemelryck.
William A. Meadows, Jr., Thomas W. Risavy, Miami, Fla. (court-appointed), for Alvardo.
Leon B. Kellner, U.S. Atty., Susan Tarbe, Linda Collins, Jose A. Bonau, Lynne W. Lamprecht, Asst. U.S. Attys., Miami, Fla., for U.S.
Appeals from the United States District Court for the Southern District of Florida.
Before FAY and JOHNSON, Circuit Judges, and MERHIGE *, Senior District Judge.
Defendants were indicted on one count of conspiracy to possess cocaine with intent to distribute, 21 U.S.C. § 846, and for one count of possession of cocaine with intent to distribute. 21 U.S.C. § 841(a)(1). All defendants were convicted of the conspiracy count, and with the exception of Golbert Bustamante, all were convicted of the possession count. The district court, however, granted the motions of defendants George Van Hemelryck, Lilacia Marina Bustamante, and Maria Alvardo for judgment of acquittal notwithstanding the jury's verdict on the possession count. George Van Hemelryck, Golbert Bustamante, and Tyrone Giraldo challenge their convictions on several grounds including sufficiency of the evidence, introduction of statements by co-conspirators and nontestifying codefendants, and failure to try defendants separately. The United States challenges the judgment of acquittal notwithstanding the verdict. For the reasons that follow, we AFFIRM the convictions of all defendants, and REVERSE the judgment of acquittal notwithstanding the verdict
as to George Van Hemelryck, Lilacia Marina Bustamante, and Maria Alvardo, and REMAND to the district court for proceedings consistent with this opinion.
On November 19, 1986, two undercover agents of the Drug Enforcement Administration ("DEA"), George Rakowsky and Ruben Prieto, along with a DEA confidential informant, met with defendant George Van Hemelryck in Hialeah, Florida to negotiate a sale of cocaine to Rakowsky. Van Hemelryck indicated that if Rakowsky could show him $100,000 to prove that Rakowsky was a sincere and legitimate businessman, then they could proceed with the proposed sale. On November 21, 1986, Prieto met with Van Hemelryck to allow Van Hemelryck to see and count the money, after which Van Hemelryck again met with Rakowsky and stated that he was satisfied.
Rakowsky continued negotiations for the purchase of cocaine with Van Hemelryck's wife, Lilacia Marina Bustamante ("Marina Bustamante"), and their juvenile son, George Van Hemelryck, Jr. ("George, Jr."), on December 3, 1986. At that time, Rakowsky suggested a deal for sixteen kilograms of cocaine. They arranged for the cocaine to be delivered in three stages: two deliveries of five kilograms each and one six-kilogram delivery. The first five-kilogram delivery was to be made on December 5, 1986, with payment due at the time of delivery. Marina Bustamante acknowledged that Rakowsky had shown her husband $100,000 a few days earlier. Marina Bustamante also assured Rakowsky that despite the fact that she and her husband had previously had some problems with each other, they had worked out their differences and would be acting as partners in the proposed transaction. When Rakowsky expressed concern over who would be present at the proposed delivery, George, Jr. stated that his parents (Van Hemelryck and Marina Bustamante) would be there, and that there would probably be another woman arriving who was a friend of his mother.
On December 5th, Rakowsky and the confidential informant arrived at a house owned by Marina Bustamante's family. Rakowsky went to the front door and was admitted by Van Hemelryck while the confidential informant stayed outside in the car.
In the house, Rakowsky met with Marina Bustamante, Van Hemelryck, and George, Jr. Also at the house was Golbert Bustamante. Marina Bustamante explained that Golbert Bustamante was her nephew, who was there to help with the deal. George, Jr. told Rakowsky that he and his parents usually took Golbert Bustamante with them in their vans when they made cross-country cocaine delivery trips, because he was an excellent mechanic.
Approximately an hour later, defendant Maria Alvardo arrived without any cocaine. Alvardo, who spoke no English, proceeded to make a phone call in Spanish, after which Marina Bustamante told Rakowsky that the cocaine was on its way. Shortly thereafter, Alvardo left the house and met Edgar Moreno and defendant Tyrone Giraldo outside. She returned to the house with a diaper bag from which she extracted four boxes from under some diapers. Alvardo said something in Spanish to Marina, who then informed Rakowsky that there were only four kilograms.
Rakowsky tested the contents of each box with a cocaine test kit. Van Hemelryck claimed that he had a chemistry background and removed some of the cocaine allegedly to test it with a chemistry kit that he had in the house. Van Hemelryck returned and stated that it was ninety-four percent pure cocaine.
Rakowsky said that although he was satisfied with the quality of the cocaine, he was not satisfied with the quantity, since the deal had been for five kilograms, not four. Alvardo and Marina Bustamante began to argue about the mistake. George, Jr. and Golbert Bustamante left to find another kilogram, but returned unsuccessful. Golbert Bustamante then made a call to try to find another kilogram of cocaine. Subsequently, he and George, Jr. left the house again. They were arrested some Meanwhile, Alvardo said that she was going to send her people to get more cocaine. She went back outside and met with Moreno and Giraldo. Giraldo subsequently left in another van. At this point, the surveillance agents moved in and arrested Van Hemelryck, Marina Bustamante, and Alvardo inside the house, and Moreno outside the house.
distance from the house while they were driving a van owned by Marina Bustamante.
After being advised of her constitutional rights, Marina Bustamante told agents Rakowsky and Prieto that she wanted to cooperate with the government. While Marina Bustamante was talking to the agents, the telephone rang. Marina had a brief conversation with someone in Spanish, after which she advised the agents that "it was the other person, that he is on his way back here." Soon after that phone call, Giraldo returned in another of Marina Bustamante's vans. The DEA arrested Giraldo, and found two separate diaper bags in the back seat of the van, each of which contained three, one-kilogram packages of cocaine. These packages were identical to the first four packages that had been delivered to the house earlier.
All the defendants were indicted for conspiracy to possess with intent to distribute in excess of five kilograms of cocaine, in violation of 21 U.S.C. § 846 (count one), 1 and for possession with intent to distribute in excess of five kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1) (count two). Although the district court had previously denied motions for severance made by several of the defendants, the court reconsidered motions for severance on behalf of all defendants and subsequently granted the motions of Edgar Moreno and Marina Bustamante.
The jury convicted Van Hemelryck, Giraldo, and Alvardo of both counts of the indictment, but convicted Golbert Bustamante of only count one of the indictment. Prior to his trial, Edgar Moreno pled guilty to count one of the indictment. In her separate trial, the jury found Marina Bustamante guilty of both counts.
Van Hemelryck, Giraldo, Alvardo, Marina Bustamante, and Golbert Bustamante all filed timely motions for judgment of acquittal not withstanding the verdict. The district court denied the motions of Giraldo and Golbert Bustamante, but granted the motions of Van Hemelryck, Marina Bustamante, and Alvardo as to count two of the indictment. This appeal followed.
Van Hemelryck, Golbert Bustamante, and Giraldo appeal their convictions and sentences on four grounds: (1) co-conspirator statements were improperly admitted against Van Hemelryck and Golbert Bustamante; (2) there was insufficient evidence to support the convictions of Van Hemelryck and Golbert Bustamante for conspiracy; (3) it was error to try Golbert Bustamante jointly with his codefendants; and (4) a statement by a nontestifying codefendant was improperly admitted against Giraldo. The government also appeals the judgments of acquittal of Van Hemelryck, Marina Bustamante, and Maria Alvardo on count two of the indictment.
Defendants George Van Hemelryck and Golbert Bustamante argue that the district court improperly admitted coconspirator statements without first making a determination as to the existence of a conspiracy and their individual participation. We disagree.
Statements that would otherwise be hearsay are admissible if they are "by a coconspirator of a party during the course and in furtherance of the conspiracy." Fed.R.Evid. 801(d)(2)(E). For a declaration by one defendant to be admissible against other defendants under this section, the government must establish by a preponderance of the evidence: (1) that a conspiracy In this case, the district court deferred ruling on the admissibility of coconspirator statements until after all the evidence had been presented. At that time, the court found that there was ...
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