United States v. Zavala

Citation622 F. Supp. 319
Decision Date19 March 1985
Docket NumberNo. CR-83-0154 RFP.,CR-83-0154 RFP.
CourtU.S. District Court — Northern District of California
PartiesUNITED STATES of America, Plaintiff, v. Julio ZAVALA, Defendant.

COPYRIGHT MATERIAL OMITTED

Mark Zanides, James Lassart, Asst. U.S. Attys., San Francisco, Cal., for plaintiff.

Judd C. Iversen, Marvin S. Cahn, Law Offices of Judd Iversen, San Francisco, Cal., for defendant.

FINDING OF FACT AND CONCLUSIONS OF LAW

PECKHAM, Chief Judge.

INTRODUCTION:

The government is prosecuting the defendant in the above-captioned case for counts three through eight, and count twenty-five of the March 1983 indictment. Counts three through eight allege that Zavala used a telephone, in committing, causing or facilitating the commission of a felony narcotics violation, in violation of 21 U.S.C. § 843(b). In count twenty-five, the government alleges that Zavala violated 21 U.S.C. § 848, the continuing criminal enterprise (CCE) statute.

The trial, a bench trial, began in late October of 1984 and consisted partly of stipulated facts and partly of live testimony. Closing argument was heard on February 22, 1984. After an examination of the record in this case,1 and a consideration of the legal arguments by counsel, the court hereby finds Julio Zavala GUILTY of counts three (3), four (4), five (5), six (6), eight (8), and twenty-five (25). The court hereby finds the defendant NOT GUILTY of count seven (7).

The court also hereby orders dismissed count one (1) of the indictment against Zavala and vacates his plea of guilty to this count.

The following memorandum sets forth the factual and legal basis for this court's findings, pursuant to Fed.Rules Crim.Pro. rule 23(c). The court considers each count in turn, making its findings of fact and conclusions of law as it takes up each count separately.

COUNTS THREE THROUGH EIGHT:

Section 843(b) of Title 21 of the U.S.C. provides:

(b) It shall be unlawful for any person knowingly or intentionally to use any communication facility in committing or in causing or facilitating the commission of any act or acts constituting a felony under any provision of this subchapter or subchapter II of this chapter. Each separate use of a communication facility shall be a separate offense under this subsection....

The indictment alleges that Zavala had six separate phone conversations from August 28, 1982 to September 23, 1982, that violated § 843(b). These phone conversations were all allegedly in furtherance of a variety of federal narcotics laws, including 21 U.S.C. § 963 (attempt or conspiracy to violate laws against importing or exporting controlled substances), 21 U.S.C. § 952 (importation of controlled substances), 21 U.S.C. § 846 (attempt or conspiracy to violate laws regarding controlled substances), and 21 U.S.C. § 841(a)(1) (possession with intent to distribute controlled substances).

The government has conceded that it has not proved count seven. The defendant has conceded that the government has met its burden of proof on counts four and eight. The court will address briefly counts four and eight to show that the record does support such a concession. Counts three, five, and six are in dispute and the court will concentrate on these communication counts.

The elements of a § 843(b) crime are "(1) knowing or intentional (2) use of a `communication facility' (3) to facilitate the commission of a felony under 21 U.S.C. § 801-966." United States v. Barnes, 681 F.2d 717, 723 (11th Cir.), cert. denied, 460 U.S. 1046, 103 S.Ct. 1447, 75 L.Ed.2d 802, modified on other grounds, 694 F.2d 233 (11th Cir.1982); United States v. Rey, 641 F.2d 222, 224 n. 6 (5th Cir.), cert. denied 454 U.S. 861, 102 S.Ct. 318, 70 L.Ed.2d 160 (1981). No question has been raised that the defendant knowingly and intentionally used communication facilities on the days charged in counts three, five, and six. The defendant does not deny that he spoke to the people charged in the indictment on those days. Moreover, the parties have stipulated that the translations of conversations referred to in the Government's Stipulation of Facts (SFG), including the conversations charged in counts three, five, and six, are "substantially accurate." SFG at 5, line 3-5.

The parties do dispute the interpretation the court should place on the contents of these conversations. In order to prove that the conversations facilitated the commission of a narcotics offense, the government must show that the conversation "comes within the common meaning of facilitate — `to make easier' or less difficult, or to assist or aid." United States v. Phillips, 664 F.2d 971, 1032 (5th Cir.1981), cert. denied 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354, and 459 U.S. 1040, 103 S.Ct. 456, 74 L.Ed.2d 608 (1982).

The court proceeds to an examination of each § 843(b) count.

1. Count three: In count three, the government alleges a conversation on August 28, 1982, between Zavala and Ernesto Linsig-Cabellero. In this conversation, the defendant calls his house on Barneson Street in San Mateo from Costa Rica. Mario Leon initially answers the phone,2 then the defendant talks with Lydia Guiterrez, his housekeeper. The defendant speaks with Ernesto Linsig-Cabellero last. In this conversation, by his own testimony, the defendant asks Linsig about Linsig's efforts to collect drug debts owed to the defendant. SFZ at 6, lines 15-16. The translations of the conversations support this conclusion. In particular, the defendant asked Linsig about the debts owed by Mario Leon, "Chino", and Tom.

Linsig also tells the defendant that some customers want a "shirt," which Linsig has testified to being an ounce of cocaine. SFG at 12, line 8. He also tells the defendant that he is going to give out "seven." The defendant instructs Linsig not to give any cocaine to this particular unnamed customer(s) until that customer pays Linsig. Linsig says the customer promised payment and the defendant says, "but that is what he told me last time." Translations accompanying SFG, conversation # 15, MALE line, NDC 86, August 28, 1982.

The defendant also instructs Linsig to use "Charlene" if he gets any cocaine.

The findings of fact prove a violation of 21 U.S.C. § 843(b) in this August 28, 1982 conversation. The conversation facilitated the defendant's conspiracy with Linsig to distribute cocaine. The defendant has stipulated that this conspiracy existed. SFG at 1-2. The discussion regarding the collection of debts assists this conspiracy because one of the main techniques the defendant used to distribute cocaine depended on the successful collection of these debts. The defendant has stipulated that he "fronted" drugs, that is, distributed drugs to persons without first receiving payment, in anticipation of payments to be received when his customers got paid by their customers. SFG at 3, lines 11-21. Thus, in a fronted transaction, the act of distribution is not complete until the customer finally pays.

Unless the defendant was able to collect his money for the fronted drugs, he could not continue in his business. First, unless he collected the debts, obviously he would not make any money. Second, unless the defendant collected his debts, he would not be able to pay his supplier of drugs, Alvaro Carvajal-Minota. If the defendant did not pay Carvajal-Minota, he would no longer be able to buy cocaine from this source. A telephone conversation in which Zavala checks up on Linsig's collection efforts aids or assists the conspiracy to distribute cocaine, and constitutes a violation of 21 U.S.C. § 843(b).

Moreover, the facts show that Zavala instructs Linsig regarding future drug sales. The court has in mind the defendant's instructions to Linsig not to give the unnamed customer who wants a "shirt," any cocaine until he pays. The defendant is not, as he urges the court to conclude, telling Linsig not to sell drugs. Defendant's Memorandum of Proof, filed 2/5/85, at 34. Rather, the court understands the defendant to be telling Linsig not to sell drugs to this customer in a certain manner, i.e., by fronting. The difference in these two instructions is that the latter is clearly a violation of 21 U.S.C. § 843(b).

In addition, the court finds that the defendant's instructions to Linsig to use Charlene for future drug distribution proves count three. Again, instructions about how to conduct future drug distributions facilitates the conspiracy to distribute drugs. Such planning surely is intended to make the conspiracy, and eventual distribution, easier than if the conspirators did not discuss future plans.

2. Count Four: In count four, the government alleges a conversation on September 5, 1982 between the defendant and Ernesto Linsig-Cabellero. The defendant concedes that the government has proven count four. The court also finds that evidence in the record supports such a concession.

The evidence of count four includes uncontradicted testimony of Linsig that he and the defendant were discussing the measurement and distribution of cocaine left at the defendant's house in the September 5, 1982, call. SFG at 15. The court also has examined the translations of the conversations and finds it is clear that the defendant and Linsig were discussing these matters.

3. Count Five: In count five, the government alleges a conversation on September 9, 1982, between the defendant and Ernesto Linsig-Cabellero. The contents of the conversations are basically uncontroverted. The defendant calls Linsig and Linsig tells the defendant that he just sold drugs to "Rita." The defendant also talks to Rita and tells her he is mad at her brother because her brother has not paid Zavala for drugs Zavala sold him. The court finds that he wanted Rita to relay a message to her brother that the defendant is looking for his money. The defendant, in his conversation with Rita, is engaged in a drug money collection effort.

The September 9, 1982, conversation amounts to a report by Linsig to the defendant on a recently completed...

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