United States v. Arias-Diaz

• Citation: 497 F.2d 165
• Decision Date: 18 July 1974
• Docket Number: No. 73-2463.,73-2463.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Armando ARIAS-DIAZ, Delfin Hondares-Alfaro, Octavio Pino-Villa, Pedro Alvaro Zarzabal-Naranjo, Mario Orlando Curbelo-Talvara and Jose Quinones-Pita, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

497 F.2d 165 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. Armando ARIAS-DIAZ, Delfin Hondares-Alfaro, Octavio Pino-Villa, Pedro Alvaro Zarzabal-Naranjo, Mario Orlando Curbelo-Talvara and Jose Quinones-Pita, Defendants-Appellants.

No. 73-2463.

United States Court of Appeals, Fifth Circuit.

July 18, 1974.

Tyce S. Smith, Chicago, Ill., for Curbelo-Talvara and Pino-Villa.

George B. Weires, Miami, Fla., for other defendants-appellants.

John L. Briggs, U. S. Atty., Robert S. Yerkes, Asst. U. S. Atty., Jacksonville, Fla., for plaintiff-appellee.

Before WISDOM and GOLDBERG, Circuit Judges, and LYNNE, District Judge.

WISDOM, Circuit Judge:

About 5 a. m., January 10, 1973, United States customs agents stopped four cars traveling together near the Leesburg Airport, Florida. The agents arrested six persons caught redhanded with a total of 1947 pounds of marijuana. The defendants-appellants, Arias, Hondares, Pino, Zarzabal, Curbelo, and Quinones,¹ were indicted, each on three charges of violating the marijuana laws: conspiring to import and distribute marijuana; knowingly and intentionally importing marijuana; and knowingly and intentionally possessing marijuana with the intent to distribute it. See 21 U.S.C. §§ 841(a)(1), 952(a), 960(b), 963 and 18 U.S.C. § 2. The defendants were tried together. Pino and Curbelo were convicted on all three counts. The other defendants were convicted only of possession of the marijuana. All appeal. We reverse the conviction of Zarzabal and affirm the convictions of the other five.

I.

Juan Ortiz, an airplane pilot, was a government informer and the chief government witness. He testified that on December 7, 1972, he met with an alleged narcotics smuggler from Colombia, Raul Gonzales, at a hotel in Miami, Florida. Ortiz had met Gonzales through Curbelo. In the hotel lobby Ortiz was introduced to Nacre Dace, another alleged marijuana dealer from Colombia. Dace later asked Ortiz to introduce him to Curbelo. Ortiz informed Curbelo that "there was a person from Colombia who wanted to see him". Curbelo suggested that they meet in his trailer. The meeting took place at 11 a. m. the next morning; Curbelo, Ortiz, Dace, and Pino were present. Dace said that a friend of Curbelo's needed money and had about 1800 pounds of marijuana in Colombia for sale. Curbelo agreed to pay Ortiz $55,000 to fly to Colombia to pick up the marijuana and bring it back into the United States. Curbelo was to send $36,000 with Ortiz as partial payment for the shipment and later pay another $36,000 to complete the deal.

Curbelo gave Ortiz several hundred dollars to make a deposit on the rental of an airplane, and later Curbelo and Pino brought Ortiz $2,500 to cover rental of the plane and other expenses. They told Ortiz how to make the connection in Colombia. Arrangements were also made for Ortiz to be met at Leesburg, Florida, upon his return from Colombia. Ortiz was to pick up a car parked near the landing field at Leesburg and drive it to the local Holiday Inn. He would be met there by Pino and Curbelo. Ortiz divulged the plan to United States customs agents.

Ortiz flew from Miami to Colombia, as planned, and picked up 24 boxes of marijuana, disguised as cartons of cigarettes. He then flew to Kingston, Jamaica. After speaking with a customs agent, he flew on to Marathon, Florida, where he refueled and flew on to Leesburg. When he landed at Leesburg, he was unable to find the appointed car, and he was unable to locate Pino or Curbelo at the Holiday Inn. He then taxied to a remote area of the airport, dumped the 24 boxes of marijuana on the ground, and flew to Miami. At that time his plane was fully inspected by U.S. Customs agents and found not to contain any type of drugs. When he arrived at his home in Miami at about 3 a. m., January 10, he learned from his wife that Pino had called. Pino called again between 3:30 and 4 a. m. He said that he was at the Leesburg Airport and asked where the marijuana was. Ortiz told him that it was at the end of the east-west runway.

Fifteen customs agents were at the Leesburg Airport in the early morning hours of January 10, 1973. At about 4:30 a. m. four cars pulled up and parked near the east-west runway. Half an hour later three of those cars proceeded to the area where Ortiz had left the cartons of marijuana. When the cars departed shortly thereafter, the cartons were gone. As these automobiles left the airport, they were joined by a fourth. Customs agents, who had been staked out at the airport, stopped all four cars. Curbelo, the driver of the fourth car, had none of the cartons; he did have two .38 caliber snub-nosed revolvers in the trunk of his car. Pino, with a passenger unidentified at trial, was driving a car containing nine cartons. Hondares, with Quinones as a passenger, had eight. The remaining car contained seven cartons. The driver was not identified at trial. Customs agents did not show that Zarzabal or Arias was in any of the vehicles stopped; nor did the agents identify them as being at the airport.

II.

At the close of the Government's case, all of the defendants moved for judgments of acquittal on all counts. The motions were denied. Zarzabal now argues that the court erred in denying his motion.

The test to be applied by the trial court in passing on a motion for judgment of acquittal "is whether, taking the view most favorable to the Government, a reasonably-minded jury could accept the relevant evidence as adequate and sufficient to support the conclusion of the defendant's guilt beyond a reasonable doubt." United States v. Jeffords, 5 Cir. 1974, 491 F.2d 90, 91; United States v. Knox, 5 Cir. 1972, 458 F.2d 612, 615, cert. denied, 409 U.S. 845, 93 S.Ct. 48, 34 L.Ed.2d 85; Jones v. United States, 5 Cir. 1968, 391 F.2d 273, 274. The judge is to direct acquittal "if the evidence is insufficient to sustain a conviction". Fed.R.Crim.P. 29(a).

The court erred in denying Zarzabal's motion to dismiss and in submitting the case against him to the jury. There was no evidence in the Government's case-in-chief to implicate Zarzabal directly. One of the customs agents, Mason, identified Pino as the driver of one of the cars and stated that there was a passenger, but he could not remember the passenger's name. The Government asks us to infer from this bald statement that the passenger was Zarzabal. We cannot draw this inference. Nor are we inclined to follow the Government's suggestion that testimony establishing that six suspects were arrested and that "all the defendants" were taken into Leesburg Municipal Courtroom and advised of their rights was sufficient to support a reasonable jury finding of Zarzabal's guilt beyond a reasonable doubt. This is not "substantial evidence" to support the verdict. See United States v. Jackson, 5 Cir. 1971, 444 F.2d 1389.

The Government also argues that Zarzabal waived appellate consideration of the denial of his motion for acquittal when his codefendant, Arias, testified and supplied deficiencies in the Government's case. Arias took the stand and attempted to raise a defense that he had no knowledge that the packages contained marijuana. During his testimony he mentioned that about 1 a. m. on January 10, 1973, he rented a room at the Holiday Inn in Leesburg, Florida, for Zarzabal and himself. It is problematical whether this testimony added enough to the nascent case against Zarzabal to permit it to go to the jury.² In any event, we cannot accept Arias's testimony as representing Zarzabal's waiver of consideration of the motion for acquittal. The rule is well-recognized in this circuit that a defendant who testifies himself and supplies deficiencies in the Government's case waives appellate review of a denial of his motion for judgment of acquittal at the close of the Government's case.³ See United States v. Jackson, supra, 444 F.2d at 1389; United States v. Rawls, 5 Cir. 1970, 421 F.2d 1285. We adhere to it. But that doctrine should not be extended to imply waiver when a codefendant testifies. See Cephus v. United States, 1963, 117 U.S.App.D.C. 15, 324 F.2d 893, 897.

III.

The appellants argue that through the activities of Ortiz, the informer, the Government's role was so integral a part of the criminal enterprise as to be repugnant to the criminal justice system and deprive the appellants of due process. They are careful not to couch this argument as entrapment. The theory, once increasingly relied on by defendants, that entrapment exists as a matter of law when there is "an intolerable degree of governmental participation in the criminal enterprise" was cut short by the 1973 Supreme Court decision United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366. In Russell the Court reaffirmed the classic predisposition test for entrapment: "It is only when the government's deception actually implants the criminal design in the mind of the defendant that the defense of entrapment comes into play." 411 U.S. at 436. The Court did not rule out the possibility however, that it might "some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction." Id. at 431-432. The appellants here contend that that day has now arrived, ushered in by the case at bar.

We need not lay out a detailed account of Ortiz's role to dispose of the appellants' argument on this point. Their attempt to impart life to the theory, discredited in Russell, that government involvement in criminal activity bars prosecution must fail. It is clear that the situation envisioned by the Supreme Court in Russell to require reversal involved more than the presence of a government informer in the scheme and his supplying a not uncommon, though essential, skill, such as here the ability to fly a plane.⁴ And we think that the "outrageous" conduct postulated by the Court must be more than...