US v. Barbosa

Decision Date19 December 2000
Docket NumberNo. 00-1205,00-1205
Citation271 F.3d 438
CourtU.S. Court of Appeals — Third Circuit


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James Kousouros (argued) Law Office of James Kousouros 80-02 Kew Gardens Road Suite 1030 Kew Gardens, NY 11415, Attorney For Appellant

Michael R. Stiles United States Attorney, Walter S. Batty, Jr. Assistant United States Attorney Chief of Appeals, Judy Goldstein Smith (argued) Assistant United States Attorney 615 Chestnut Street Suite 1250 Philadelphia, PA 19106, Attorneys For Appellee

Before: Becker, Chief Judge, Nygaard and Fuentes, Circuit Judges


Fuentes, Circuit Judge

In July 1998, the Drug Enforcement Agency ("DEA") arrested defendant Luis Humberto Barbosa for importing into this country 882 grams of cellophane-wrapped pellets of heroin, which he had swallowed while in Aruba and subsequently expelled in a hotel room in Philadelphia, Pennsylvania. Following the arrest, Barbosa was charged in a complaint with possession with intent to distribute heroin. Upon further investigation, the DEA laboratory determined that the pellets Barbosa had swallowed contained cocaine base with a purity of 85%, not heroin.

After a jury trial, Barbosa was convicted of possession with intent to distribute more than 50 grams (i.e., 882 grams) of cocaine base in violation of 21 U.S.C. SS 841(a)(1) and 841(b)(1)(A)(iii). He was later sentenced to a twenty-year term of imprisonment. Barbosa appeals his conviction and sentence, contending that: (1) the District Court should have sentenced him based upon the drug he intended to bring into the country (heroin), rather that the drug he unwittingly, but actually, transported (cocaine base); (2) in accordance with the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), the issue of which substance he intended to transport should have been submitted to the jury for a factual determination beyond a reasonable doubt; (3) if it was proper to sentence him for cocaine base, the court erred in sentencing him to a twenty-year mandatory minimum; (4) the District Court erred in denying his motion for a new trial based on newly discovered evidence of payments made to government informants who testified at trial; and (5) the District Court erroneously denied his motions to dismiss the indictment based upon "outrageous governmental conduct."

We conclude that there is no merit to any of these claims, and thus, we affirm the conviction and sentence.


Barbosa was an ancillary part of a larger DEA undercover investigation into South American heroin suppliers who were smuggling the drug into the United States. This investigation ultimately resulted in the seizure of 75 kilograms of cocaine in Aruba and the arrest of five individuals, including Emilio Medina a/k/a Felix Zorilla. As Aruba was a critical point in the smuggling route, the DEA had worked with the Aruban Police Department through the DEA's Curacao Country Office.

During this investigation, the DEA used three paid professional informants: Ramon Disla, Nestora Salcedo, and Miguel Morel. Disla had previously been prosecuted for illegal re-entry after being deported following a drug conviction. While serving his sentence, he and his girlfriend, Salcedo, had cooperated with the Government in order to have his sentence reduced. Once released, he was again deported, but had re-entered the country under a cooperation agreement with the DEA. In total, Disla had received $14,002 and Salcedo had received $47,000 over four years for information, evidence, and expenses in a large number of cases. The DEA had also provided housing for both Disla and Salcedo. Although they had worked for other government agencies as well, Disla and Salcedo had derived the vast majority of their income from the DEA. Morel, by comparison, had received a total of $108,000 over eleven years of work with the DEA but was a minor informant in this case. Under its policy, the DEA made payments to informants regardless of their progress on a case; these payments were also unconnected to the convictions of any specific individuals.1 At trial, the Government elicited detailed testimony as to the amounts each of the three informants was being paid on this particular investigation.

At the time these informants were enlisted, the Government possessed information that Zorilla had access to a large amount of heroin in Aruba. The DEA knew that Zorilla had previously been involved in narcotics activities with Disla, and thus directed Disla to contact Zorilla in Aruba to negotiate a deal. Disla, however, did not know Barbosa when he began this work for the DEA. On June 10, 1998, during a tape-recorded conversation, Zorilla asked Disla if he could obtain a United States passport for him to travel internationally but not to enter the United States. Later in the conversation, Zorilla gave Disla the pager number of his friend, "Luisin," an American citizen who had just left Aruba for the United States. According to Zorilla, Luisin was a "straight guy," which Disla later testified meant someone who could be trusted with drugs. Zorilla also stated that he had met Luisin at a restaurant in Aruba after not seeing him for some time. Zorilla then asked Disla whether he knew of anyone who could be used to transport drugs into the United States.

Two days after this conversation, Disla paged Luisin, and the two agreed to meet at the La Familia restaurant in New York; Luisin turned out to be Barbosa. Disla did not record this meeting and did not recall the details of this meeting at trial. However, Disla had a second unrecorded meeting with Barbosa at the same restaurant in July 1998, this time accompanied by Morel, who posed as Disla's partner. At this meeting, Barbosa portrayed himself as a drug dealer who did not import drugs personally. Rather, Barbosa explained the two ways of transporting drugs -- by swallowing or by enclosing them in some type of rubber device. With respect to the swallowing technique, Barbosa asserted that swallowing drugs was not risky because the drugs were wrapped in cellophane and then in rubber, and that it would cost $10,000 per kilogram, plus an additional $5,000 for expenses, to bring in drugs using a swallower. In between the two meetings at the restaurant, Disla spoke to Barbosa on numerous occasions but similarly did not record any of those conversations.

Disla did, however, record a telephone conversation with Barbosa on July 7, 1998. During this call, Barbosa told Disla that he would talk to Zorilla as soon as Zorilla was ready to carry out a drug transaction because, otherwise, they would be wasting their time. Barbosa also told Disla that the $35,000 per kilogram price (which did not include $15,000 for travel and expenses) that Zorilla was charging for heroin was too high. Barbosa further explained to Disla that the going wholesale price for heroin was $70,000 in New York, leaving $20,000 for profit. According to Barbosa, a swallower would cost $10 per gram of drugs.

During another recorded telephone conversation on July 9, 1998, Barbosa informed Disla that he was going to tell Zorilla how to package the drugs, that he wanted no more than 9 grams of drugs in each pellet, that he wanted the pellets narrow so that they could be more easily swallowed, and that he was familiar with the type of equipment Zorilla used to make the pellets. However, Barbosa had been unable to reach Zorilla to relay this information. Barbosa said that Zorilla was trying to rush the deal and recommended to Disla that they not move hastily as, in any case, there were very few heroin customers in Aruba and Zorilla would be unable to sell the heroin there.

In this same conversation, Barbosa also explained a potential drug deal in which cocaine would be transported from Aruba to Israel and heroin would be brought from Israel to the United States. Barbosa explained to Disla that, in order to bring the heroin from Israel to the United States, the swallower would have to stop in between the two countries, expel the drugs, and reswallow them. According to Barbosa, Zorilla could get the heroin but did not have the money for this transaction.

On July 13, 1998, Disla and Barbosa had another recorded telephone conversation. During this call, Barbosa told Disla that he had someone to transport the drugs, but that this person would be unable to swallow 1,400 grams of drugs. Barbosa also explained the nature of the transaction between Zorilla and Zorilla's supplier, telling Disla that Zorilla's supplier in Aruba initially would only give Zorilla 1,000 grams of heroin but would give an additional 600 grams after being paid for the first 1,000 grams. Barbosa also told Disla that he had a steady customer who was a Colombian. At the end of the conversation, Barbosa told Disla that he would go to Aruba to get the drugs from Zorilla, if they were ready, and then return to New York City. Disla wanted Barbosa to come directly to Philadelphia, or to pick-up Barbosa at the airport in New York himself, but Barbosa declined both options.

Barbosa and Disla had a second recorded conversation later on July 13. During this call, Barbosa insisted on making all of his own travel arrangements out of New York. Shortly after this call, there was a third recorded conversation, during which Barbosa estimated that his expenses would be between $1,400 and $1,500. That night, Barbosa went to Philadelphia and received $1,600 from Disla.

Barbosa traveled to Aruba on July 15, 1998. He spoke to Salcedo on the telephone concerning the money Zorilla had...

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