US v. Cuervelo

• Decision Date: 12 December 1989
• Docket Number: No. S 89 Cr. 305 (PKL).,S 89 Cr. 305 (PKL).
• Citation: 726 F. Supp. 103
• Parties: UNITED STATES of America v. Emiro CUERVELO, Omaira Gomez-Galvis, Jose Fernando Cardona, Sigfredo Mejia Sanchez, Antonio Jaramillo, Cesar Bravo, Luis Alberto Correa, and Carlos Alberto Gomez-Galvis, Defendants.
• Court: U.S. District Court — Southern District of New York

726 F. Supp. 103

UNITED STATES of America v. Emiro CUERVELO, Omaira Gomez-Galvis, Jose Fernando Cardona, Sigfredo Mejia Sanchez, Antonio Jaramillo, Cesar Bravo, Luis Alberto Correa, and Carlos Alberto Gomez-Galvis, Defendants.

No. S 89 Cr. 305 (PKL).

United States District Court, S.D. New York.

December 12, 1989.

Otto G. Obermaier, U.S. Atty., S.D.N.Y. (Christine Gray, of counsel), New York City, for U.S.

Robert N. Scola, Jr., Coral Gables, Fla., for defendant Cesar Bravo.

Quinon & Strafer (Jose Quinon, of counsel), Coral Gables, Fla., for defendant Luis Alberto Correa.

LEISURE, District Judge.

All defendants were charged in count one of a three-count indictment with conspiracy to distribute and to possess with intent to distribute over 200 kilograms of a substance containing the narcotic drug cocaine ("cocaine"). Additionally, defendants Omaira Gomez-Galvis and Jose Fernando Cardona ("Cardona") were charged in count two with conspiracy to import 390 kilograms of cocaine and, in count three, with a substantive count of importation of 390 kilograms of cocaine.¹ A trial was held beginning September 11, 1989. On October 23, 1989, the jury returned a verdict finding all defendants, except Carlos Alberto Gomez-Galvis, guilty of conspiracy to distribute cocaine (count one), and finding Omaira Gomez-Galvis guilty on all three counts, while acquitting Cardona on counts two and three.

After the close of all the evidence, each defendant made motions for acquittal pursuant to Fed.R.Crim.P. 29(b). The Court reserved decision on the Rule 29 motions pursuant to Rule 29(b). After the jury returned its verdict, the Court denied all the Rule 29 motions except those as to defendants Cesar Bravo ("Bravo") and Luis Alberto Correa ("Correa"), on which the Court continued to reserved decision pending the submission of papers on those motions. The motions on behalf of Bravo and Correa urge a judgment of acquittal based on the insufficiency of the evidence submitted at trial. Papers have now been submitted by the government and by both defendants. The Court has reviewed those papers and the evidence at trial relating to Bravo and Correa. Based on that review, the Court denies the motions of defendants Bravo and Correa for acquittal pursuant to Rule 29(b).

DISCUSSION

"A party challenging the sufficiency of evidence bears a very heavy burden." United States v. Campino, 890 F.2d 588, 594 (2d Cir.1989); United States v. Adegbite, 877 F.2d 174, 179-80 (2d Cir.), cert. denied, ___ U.S. ___, 110 S.Ct. 370, 107 L.Ed.2d 356 (1989). "A conviction must be allowed to stand if, `after viewing the evidence in the light most favorable to the prosecution,' the reviewing court finds that `any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" United States v. Casamento, 887 F.2d 1141, 1156 (2d Cir. 1989), quoting, Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original). In making its determination about the sufficiency of evidence at trial, the Court must view the various pieces of evidence in concert as a whole, and not individually. United States v. Young, 745 F.2d 733, 762 (2d Cir.1984), cert. denied, 470 U.S. 1084, 105 S.Ct. 1842, 85 L.Ed.2d 142 (1985). The Second Circuit has noted that viewing the evidence as a whole is particularly important in a conspiracy case such as the one now before the Court, because so much of the evidence, while not incriminating on its face and when viewed in isolation, may be used by the jury to draw a reasonable inference about the alleged conspiracy. Id.

Bravo and Correa assert that the government did not present sufficient evidence to allow any rational juror to find that either defendant had a connection to the conspiracy to distribute cocaine charged in the indictment. The Court is not without guidance on this issue. Unwilling, but out of necessity, the federal courts in recent years have become quite familiar with the ways of conspiracies to distribute and/or import narcotic drugs. Accordingly, there is substantial case law on this issue spanning a wide range of factual situations.

The Second Circuit has shown substantial deference to juries in reviewing conspiracy convictions, in large part because the proof of conspiracy is often so dependent on circumstantial evidence and inferences. As one commentator, cited with approval by the Second Circuit, has stated,

Conspiracy is by nature a clandestine offense. It is improbable that the parties will enter into their illegal agreement openly; it is not necessary, in fact, that all the parties ever have direct contact with one another, or know one another's identity, or even communicate verbally their intention to agree. It is therefore unlikely that the prosecution will be able to prove the formation of the agreement by direct evidence, and the jury must infer its existence from the clear co-operation among the parties.

Developments in the Law—Criminal Conspiracy, 72 Harv.L.Rev. 920, 933 (1959), cited in United States v. Nusraty, 867 F.2d 759, 762 (2d Cir.1989); United States v. Young, 745 F.2d 733, 762 (2d Cir.1984). Once the existence of a conspiracy is shown, "evidence sufficient to link another defendant to it need not be overwhelming." Nusraty, 867 F.2d at 762 (citations omitted).

The government does have the burden of making the connection between the defendant and the conspiracy. "The agreement between the party charged and his coconspirators is the gist of the crime of conspiracy." Id. at 763. The proof of such an agreement is crucial to the government's case for the finding of guilt in a conspiracy case. Such proof is not always a simple matter. It is elemental that "mere presence at the scene of a criminal act, even coupled with the knowledge that a crime was being committed there, is not enough to establish guilt" United States v. Soto, 716 F.2d 989, 991 (2d Cir.1983). Similarly, "mere association with conspirators does not establish participation in a conspiracy." United States v. Rios, 856 F.2d 493, 496 (2d Cir.1988); United States v. Diez, 736 F.2d 840, 843 (2d Cir.1984). "There must be some evidence from which it can reasonably be inferred that the person charged with conspiracy knew of the existence of the scheme alleged in the indictment and knowingly joined and participated in it." United States v. Gaviria, 740 F.2d 174, 183 (2d Cir.1984).

These requirements of proof cannot be read too broadly, however. "The size of a defendant's role does not determine whether that person may be convicted of conspiracy charges. Rather, what is important is whether the defendant wilfully participated in the activities of the conspiracy with knowledge of its illegal ends." United States v. Vanwort, 887 F.2d 375, 386 (2d Cir.1989). Participation in a single act in furtherance of the conspiracy is enough to sustain a finding of knowing participation. Id.; United States v. Zabare, 871 F.2d 282, 287 (2d Cir.), cert. denied, ___ U.S. ___, 110 S.Ct. 161, 107 L.Ed.2d 119 (1989). Further, it is not essential that each member of a conspiracy know all the details of the agreement or of the events planned. Nor is it necessary that the conspiracy be successfully concluded. It is the agreement, and the defendant's participation in it, which constitutes the crime. United States v. Martino, 759 F.2d 998, 1003-4 (2d Cir.1985).

This case began in 1988 when Omaira Gomez-Galvis ("Omaira"), Emiro Cuervelo, and an undercover agent of the Drug Enforcement Administration ("DEA") met in Panama to plan drug shipments to the United States. After extensive negotiations and a series of false starts, an agreement was reached in early 1989 for a shipment of some 390 kilograms of cocaine to be shipped to New York. The DEA, through the auspices of its undercover agent and his contacts in New York, arranged for a plane and a pilot to fly the shipment of drugs to White Plains, New York. From there, 231 kilograms of the cocaine was to be distributed for sale in the New York area. The remainder of the shipment was to be paid to the undercover agents as a fee for the transportation services provided.

The cocaine arrived in New York on April 6, 1989. An agreement was reached between the undercover agents, Omaira and the distributors whom she had contacted in New York, that the cocaine would be turned over to the distributors at a meeting to be held on the evening of April 7, 1989 in the TriBeCa section of Manhattan. Omaira's contact with the distributors was Cardona. Additionally, Omaira was staying at Cardona's apartment in Brooklyn while she arranged the sale of the cocaine to the distributors.

A DEA undercover agent met Cardona in TriBeCa after 7:00pm on April 7, 1989. At that time the agent was introduced to two of the distributors, Antonio Jaramillo ("Jaramillo") and Sigfredo Mejia Sanchez ("Sanchez"), who had come to pick up the cocaine. The undercover agent gave Jaramillo possession of the van which allegedly contained the cocaine, and Sanchez took Jaramillo's car. Both Jaramillo and Sanchez drove, by separate routes, to a house located at 57-20 226th Street in Queens, New York. DEA agents followed both the van and Sanchez's car and arrived at that address just as the van was pulling into the driveway at the house. At the house, Jaramillo exited the van and went inside. He emerged from the garage a few minutes later with Bravo. Correa was seen at the front door, looking to his right and to his left. Jaramillo then got back into the van and drove it into the garage while Bravo remained outside, looking out at the street. Immediately after the van entered the garage, agents exited their vehicles and placed Jaramillo, Sanchez, Bravo and Correa under arrest.

At the time of the arrest, agents searched the house, finding it to be only sparsely furnished.² At the same time, agents seized communications beepers from defendants Jaramillo, Bravo and Correa.³ Additionally, agents...