United States v. Borda

• Decision Date: 21 February 2017
• Docket Number: No. 13-3074,C/w 13-3101,13-3074
• Citation: 848 F.3d 1044
• Parties: UNITED STATES of America, Appellee, v. Christian Fernando BORDA, also known as Tony, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

848 F.3d 1044

UNITED STATES of America, Appellee,
v.
Christian Fernando BORDA, also known as Tony, Appellant.

No. 13-3074
C/w 13-3101

United States Court of Appeals, District of Columbia Circuit.

Argued November 8, 2016
Decided February 21, 2017

Elizabeth A. Brandenburg argued the cause for appellant Borda. With her on the briefs was Marcia G. Shein, Decatur, GA.

Carmen D. Hernandez, Highland, MD, appointed by the court, argued the cause and filed the briefs for appellant Alvaran–Velez.

Kirby A. Heller, Attorney, U.S. Department of Justice, argued the cause and filed the brief for appellee.

Before: Tatel and Wilkins, Circuit Judges, and Ginsburg, Senior Circuit Judge.

Wilkins, Circuit Judge:

Appellants Christian Fernando Borda and Alvaro Alvaran–Velez challenge the outcome of a jury trial finding them guilty under 21 U.S.C. §§ 959, 960, 963 of conspiracy to distribute five kilograms or more of cocaine knowing and intending that the cocaine would be unlawfully imported

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into the United States. In support of their challenge, Appellants allege that the District Court committed numerous procedural errors, including improper evidentiary admissions and exclusions, insufficient jury instructions, Brady and Napue violations, improper closing arguments, and sentencing errors. Appellants further maintain that there was insufficient evidence to permit a rational juror to find guilt beyond a reasonable doubt. For the following reasons, we affirm Appellants' convictions but remand for the District Court to resentence Mr. Alvaran.¹

I.

On December 9, 2010, Appellants Borda and Alvaran were convicted of conspiracy to distribute at least five kilograms of cocaine with the intent or knowledge that the cocaine would be unlawfully imported into the United States. At trial, Appellants did not contest that they engaged in drug trafficking, but argued that they lacked the knowledge or intent to import the drugs into the United States. The conspiracy at issue in this case involved three separate transactions: (1) Palm Oil #1; (2) Palm Oil #2; and (3) the El Chino Load. The evidence presented at trial, taken in the light most favorable to the government, see United States v. Bryant , 523 F.3d 349, 353 (D.C. Cir. 2008) ; United States v. Washington , 12 F.3d 1128, 1135–36 (D.C. Cir. 1994), is as follows.

A.

The first Palm Oil deal occurred between January 2005 and May 2005 and involved the transportation of approximately 1,553 kilograms of cocaine hidden in drums of palm oil from Cartagena, Colombia to Puerto Progreso, Mexico. A Mexican drug trafficker named Raul Valladares ("Junior") received the cocaine in Puerto Progreso, a small Mexican port on the eastern side of the country, in mid-2005. Junior transported the cocaine from Puerto Progreso to Monterrey, an inland city located approximately one hour and forty-five minutes (200 kilometers) by car from the United States border. According to the evidence, Monterrey lacked sufficient demand for a load of cocaine as large as the Palm Oil #1 deal. Beginning in August 2005, Junior began working as an informant for the United States Drug Enforcement Administration ("DEA").

In exchange for transporting the cocaine to Monterrey, Junior charged Appellants an 18% fee. The transportation fee was calculated based on the quantity of cocaine, not the total price (i.e., Junior received payment in kilograms of cocaine, not money). The usual transportation fee for moving cocaine across the United States border is 40–45%. After selling the cocaine, Junior was responsible for paying Appellants $9,100 per kilogram of cocaine, which is the typical price for cocaine in Monterrey. For cocaine sold in the United States, the usual price increases to $14,000 or $15,000 per kilogram. Appellants expected Junior to pay for the cocaine within ten days of receipt.

Junior, however, was unable to reimburse Appellants within the specified time period. In light of this development, Mr. Alvaran met with Camilo Suarez, another confidential informant, on June 15, 2005, to discuss Junior's failure to pay. At this meeting, Mr. Alvaran noted that Junior had started to send "partials" across the border. Despite the successful sale of cocaine, Appellants still had not received payment. Mr. Alvaran commented that Monterrey was full of merchandise (i.e., cocaine), but it was not selling as fast as they had predicted. Junior later explained that he had already begun selling the cocaine

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at market price and would be able to start delivering money in Monterrey.

Subsequently, on July 20, 2005, Mr. Borda met with Mr. Alvaran and Mr. Suarez to discuss Junior's outstanding payments. Mr. Suarez defended Junior's payment delay by explaining that the "market went bad because the border got harder" for Junior. Appellants then discussed the conditions at the border in greater detail, including new police officers and increased inspections. Mr. Borda admitted that he understood Junior's difficulties because he had previously been a drug dealer in the United States. In particular, Mr. Borda acquired first-hand knowledge of the U.S. drug market while living in New York and Florida, and was previously convicted in the Southern District of Florida for conspiracy to possess with the intent to distribute cocaine back in August 1998. Nonetheless, Mr. Borda expressed frustration at Junior's untimely payments and complained that Junior was not paying the negotiated price. Mr. Borda referred to the fact that Junior had taken the cocaine across the border, sold it at the higher U.S. price, brought the money back to Monterrey, and paid Appellants the Monterrey price for cocaine.

At trial, Mr. Suarez testified that all 1,553 kilograms of the Palm Oil #1 deal were eventually transported into the United States, with at least 200 kilograms trafficked to New York. However, a substantial period of time existed when Mr. Suarez did not know what Junior had done with the cocaine. Additionally, Mr. Suarez noted that Mr. Borda previously refused on two occasions to transport cocaine into the United States because he did not want the "responsibility" or "headache."

By October 2005, Junior had paid Mr. Borda approximately $6 million. Junior's payments were all in United States currency, mostly in $20 bills. However, the testimony at trial established that the money received for the cocaine was laundered through a money exchange house before being distributed to Appellants. Once the proceeds were received in Monterrey, Mr. Alvaran arranged for the cash to be transported to Mexico City. Mr. Alvaran's secretary, Mr. Lucas, would pick the money up in Mexico City and deliver it to Juan Jaime Montoya–Estrada, another co-conspirator. The money was then moved to either Mr. Alvaran's apartment or Mr. Montoya's apartment, where Mauricio Cruz counted the proceeds. The ledgers kept by Appellants and Mr. Montoya show that Junior paid between $153,000 and $1,020,000 every couple of weeks between June 17, 2005 and August 4, 2005.

B.

Following the shipment of the first Palm Oil load, but before Junior successfully paid for all of the cocaine, Appellants and Mr. Suarez initiated negotiations for a second Palm Oil deal. The parties discussed shipping additional cocaine from Colombia to Mexico, and Mr. Suarez recommended using Junior on this transaction since the parties had already completed "one run" with him. Although Appellants ordered the palm oil, and Junior invested money in the new deal, the transaction never materialized due to Junior's late payments on the first Palm Oil load.

C.

Finally, the third transaction, termed the El Chino Load, occurred in approximately September 2005. In this deal, Appellants and a drug trafficker named El Chino agreed to transport 3,000 kilograms of cocaine from Colombia to Mexico City. The cocaine would be transported in two "go-fast boats," and subsequently transferred to a Venezuelan-registered fishing vessel. The fishing vessel would meet a

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boat sent by El Chino off the coast of Honduras, and El Chino's associates would then transport the cocaine to Mexico City.

During the initial shipment of cocaine, one of the "go-fast" boats broke down. As a result, only 1,500 kilograms of cocaine made it to the Venezuelan fishing vessel. While the fishing vessel was supposed to meet El Chino's associates approximately sixty miles off the coast of Honduras, the crew spotted a U.S. plane above the vessel and threw the cocaine into the Caribbean Sea before being intercepted by the U.S. Coast Guard. Accordingly, when the Coast Guard searched the vessel, no contraband was discovered.

D.

Following the presentation of evidence in this case, the jury returned a guilty verdict for both Mr. Borda and Mr. Alvaran. While the District Court noted that the Government's evidence was "not overwhelming," United States v. Borda , 786 F.Supp.2d 25, 36, 44 (D.D.C. 2011), it upheld the jury's verdict and denied Appellants' request for a new trial.

At the sentencing hearing, the District Court found Appellants responsible for...