United States v. Mosquera

• Decision Date: 30 March 2018
• Docket Number: No. 16-10381,No. 16-10261, No. 16-10313, No. 16-10414,16-10261
• Citation: 886 F.3d 1032
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Jesus Hernando Angulo MOSQUERA, Juan Rodriguez Acosta, Arley Lopez Enciso, Efrain Bilbao Varela, Defendants–Appellants. United States of America, Plaintiff–Appellee, v. Juan Rodriguez Acosta, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Arley Lopez Enciso, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Efrain Bilbao Varela, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

886 F.3d 1032

UNITED STATES of America, Plaintiff–Appellee,

v.Jesus Hernando Angulo MOSQUERA, Juan Rodriguez Acosta, Arley Lopez Enciso, Efrain Bilbao Varela, Defendants–Appellants.

United States of America, Plaintiff–Appellee,

v.Juan Rodriguez Acosta, Defendant–Appellant.

United States of America, Plaintiff–Appellee,

v.Arley Lopez Enciso, Defendant–Appellant.

United States of America, Plaintiff–Appellee,

v.Efrain Bilbao Varela, Defendant–Appellant.

No. 16-10261

No. 16-10313

No. 16-10381

No. 16-10414

United States Court of Appeals, Eleventh Circuit.

March 30, 2018

Karin Bethany Hoppmann, Arthur Lee Bentley, III, Joseph K. Ruddy, U.S. Attorney's Office, Tampa, FL, for Plaintiff–Appellee.

Christophir A. Kerr, Christophir A. Kerr, Esq., Largo, FL, for Defendant–Appellant JESUS HERNANDO ANGULO MOSQUERA.

Che Lopardo, Law Offices of Che Lopardo, Tampa, FL, for Defendant–Appellant JUAN RODRIGUEZ ACOSTA.

Edward Liebling, Law Office of Edward Liebling, PA, Palm Harbor, FL, for Defendant–Appellant ARLEY LOPEZ ENCISO.

Joseph John Hovsepian, Sr., Hovsepian Law Group, Riverview, FL, Efrain Bilbao Varela, FMC Lexington—Inmate Legal Mail, Lexington, KY, for Defendant–Appellant EFRAIN BILBAO VARELA.

Before MARCUS, MARTIN, and NEWSOM, Circuit Judges.

MARCUS, Circuit Judge:

In this large cocaine conspiracy, the appellants, Jesus Hernando Angulo–Mosquera ("Angulo"), Juan Rodriguez–Acosta ("Acosta"), Efrain Bilbao–Varela ("Varela"), and Arley Lopez–Enciso ("Lopez"), were charged, along with four other co-conspirators, with conspiring to possess and possessing cocaine with intent to distribute while aboard a vessel on the high seas and subject to United States jurisdiction. Before trial the four other co-conspirators pled guilty, and at trial they testified that all of the appellants knew there were drugs on the vessel they sailed and all were knowing participants in the conspiracy. Angulo, alone among the appellants, testified in his own defense. Each of the appellants was convicted by the jury and each was sentenced to a 235–month prison term.

The appellants argue that the district court's denial of their motions for a new trial amounted to an abuse of the district court's discretion because polygraph evidence offered by Angulo in support of his claimed lack of knowledge prejudiced the remaining appellants in a joint trial and should have resulted in severance. They also claim that the prosecutor improperly cross-examined Angulo, that the district court erroneously allowed the introduction of hearsay evidence, and that the court erred in not including a particular jury instruction sought by Acosta, Varela, and Lopez. Finally, Varela and Acosta contest their sentences.

We can discern no error, and, accordingly, affirm the judgments of the district court.

I.

Angulo, Acosta, Varela, and Lopez were part of an eight-member crew on board the Hope II, a Panamanian-flagged cargo ship that departed from Cartagena, Colombia in August 2014 laden with nearly 1500 kilograms of cocaine secreted in a hidden compartment. The other four crewmembers were Simon Bolivar Ferreras–Trinidad, Euclides Tous–Calle, Manuel DeJesus Crespo–Marin, and Emerson Julio Carcedo.

Three of the appellants—Acosta, Varela, and Angulo—had been working on the Hope II for several months before the Coast Guard intercepted the vessel. Acosta was the ship's captain, Varela was its chief engineer, and Angulo claims to have been the cook. One of the co-conspirators, Crespo–Marin, testified that the August 2014 voyage was not the Hope II's first drug run. Rather, the Hope II had sailed with cocaine at least one other time in February 2014, and according to Crespo–Marin, the entire crew for that voyage, including Acosta, Varela, and Angulo, had been involved in the drug conspiracy. Prior to that run, a secret compartment to house the drugs was built inside a fuel tank beneath the hallway outside the crew's cabins.

While the Hope II was undergoing repairs after the first run, the crew was told about an opportunity to participate in another drug run with about twice the cargo of cocaine; each crewmember would net between 50 and 120 million pesos for undertaking the task. Ferreras–Trinidad testified that everyone, including the four appellants, agreed to take part in the enterprise. Ferreras–Trinidad and Tous–Calle added that Angulo used the ship's crane to load some 61 boxes of cocaine onto the Hope II while Varela directed him from the deck, and Ferreras–Trinidad testified that Lopez detached the boxes from the crane when they got to the ship. The crew also stored some empty rice bags in the steering room—a type of bag often used to facilitate the delivery of drugs.

On August 28, 2014, a maritime patrol aircraft spotted the Hope II traveling in an area of "known drug-smuggling activity" some 47 nautical miles north of San Blas, Panama. The aircraft reported to a Coast Guard ship that it had encountered a vessel acting in a suspicious manner: the ship was seen changing course as soon as the aircraft approached, and its automated information system—which broadcasts the ship's last port of call, next port of call, and purpose—was not active. A Coast Guard cutter hailed the Hope II and ultimately boarded it. Co-conspirator Tous–Calle testified that not long before the Hope II was boarded, Acosta tried to call someone on a satellite phone and ordered Tous–Calle to throw the phone overboard when the call did not go through "[s]o that it would not be seized."

Six Coast Guard personnel boarded the ship and began to conduct a safety sweep. They asked the captain, Acosta, to muster the crew on deck, and to produce documentation for the ship and its crew, along with the crew's passports. The Coast Guard then conducted an "at-sea space accountability" inspection—a visual inspection of "every single square inch of the vessel" to look for hidden compartments and drugs. They discovered the empty rice bags in the steering room, which added to their suspicions, because this kind of bag is often associated with contraband. Coast Guard personnel also discovered that the ship's automated information system worked but had been switched off. During the inspection, co-conspirator Carcedo overheard Varela warn Acosta that the Coast Guard was "right on top of the secret compartment."

The Coast Guard eventually found a hatch in the middle of the berthing area hallway that had been covered by two mats: a black rubber mat placed on top and a "welcome" mat found underneath. Coast Guard personnel assumed the hatch led to a fuel hold, but one officer became suspicious because of its unusual location near the berthing area. Closer inspection revealed other oddities: the hatch was not airtight, which is highly unusual for a fuel hold; some of the bolts holding the hatch closed were shiny, indicating they had been manipulated recently; and there was caulking discerned around the access plate, which is not typically used for a fuel hold. The officer opened the hatch just a little bit to see if he could smell any fuel. Once he determined that he could not, he opened the hatch fully. Inside, the Coast Guard found 1483 kilograms of cocaine. Ion scans of the ship also revealed trace amounts of cocaine on the crane and in the galley area of the ship.

The crew was arrested, brought to Tampa, and each was indicted in the United States District Court for the Middle District of Florida for possessing cocaine with the intent to distribute while aboard a vessel subject to United States jurisdiction, under 46 U.S.C. §§ 70503(a) and 70506(a), and 21 U.S.C. § 960(b)(1)(B) ; and for conspiracy to possess cocaine with the intent to distribute, under 46 U.S.C. §§ 70503(a) and 70506(a) – (b), and 21 U.S.C. § 960(b)(1)(B).

Four of the co-conspirators—Ferreras–Trinidad, Tous–Calle, Crespo–Marin, and Carcedo—pled guilty. One of them, Crespo–Marin, testified that after pleading guilty and returning to the holding area, Angulo came up to him and they had "a verbal fight." Angulo allegedly called Crespo–Marin a traitor, which Crespo–Marin took to be a reference to his decision to plead guilty. According to Crespo–Marin, Angulo also said "that he [Angulo] was a man that demanded respect," and then Angulo threatened him by saying "[y]ou don't know who I am." Another co-conspirator, Ferreras–Trinidad, testified that Angulo and Varela "threatened to kill [him] 50 times over," observing "that [he] know[s] how [pleading guilty] is rewarded in Colombia," and that when Ferreras–Trinidad pled he "became a rat." A third co-conspirator, Carcedo, added that Angulo told him he had thrown away the gloves and clothing he had worn while loading the drugs on board the ship in order to dispose of any evidence against him. An unrelated prisoner, Jose Yamir Lopez–Marrero, testified that while the crew was incarcerated at Pinellas County Jail awaiting trial, Varela explained the Hope II operation to him, including that the vessel had been headed for San Andrés Island where the crew intended to drop off the dope and then sail on to Costa Rica in order to pick up a load of gravel.

For his part, Angulo swore before the jury that he never threatened anyone, and offered an entirely different version of the "verbal fight" with Crespo–Marin. According to Angulo, Crespo–Marin had been rude to him, and Angulo simply responded, "[b]e respectful to me because I've always been respectful to you." In fact, Angulo testified that it was Crespo–Marin who exclaimed that Angulo "didn't know who he [Crespo–Marin] was." As Angulo told it, this altercation had nothing to do with the criminal proceedings.

Before trial, Lopez moved to sever his trial from Angulo's, based solely on the possible introduction by Angulo of rehabilitative polygraph evidence. Lopez claimed that the polygraph evidence would prejudice him because the jury might well assume that he either refused to take a lie detector test or, maybe, had failed a similar exam. The district court denied the motion to sever, explaining that...