UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE
v.
OVIDIO CAMEJO, LUIS RIVERA-TORRES, LIVINGSTON K.
SMITH, LUIS F. SETIEN, RAUL ANCHIA, DEFENDANTS-APPELLANTS
No. 89-5707
United States Court of Appeals, Eleventh Circuit
April 22, 1991
929 F.2d 610 (11th Cir. 1991)
Jeffrey S. Weiner, Miami, Fla., for Camejo.
Russell K. Rosenthal, Coral Gables, Fla., for Smith.
Charles G. White, Miami, Fla., for Setien.
Benjamin S. Waxman, Jefrey S. Weiner, Miami, Fla.,
for Anchia.
Victor Martinez, Bruce Kessler, Asst. Federal Public
Defenders, Miami, Fla., for Rivera.
Dexter W. Lehtinen, U.S. Atty., Phillip DiRosa,
Mayra R. Lichter, Linda Collins Hertz, Miami, Fla., for U.S.
Appeals from the United States District Court for
the Southern District of Florida.
Before TJOFLAT, Chief Judge, EDMONDSON Circuit
Judge, and DYER, Senior Circuit Judge.
DYER, Senior Circuit Judge:
Five defendants, who were employees of Eastern
Airlines, appeal their convictions of conspiracy to import and to
possess with intent to distribute cocaine. The multiple assertions of
error in the trial below do not raise any grounds which require
reversal. We affirm the convictions.
BACKGROUND
Ruy Martinez, an Eastern Airlines baggage handler at
the Miami International Airport, organized a scheme to smuggle cocaine
from Colombia through the use of incoming commercial flights to be
off-loaded in Miami. Between 1982 and 1984, large quantities of
cocaine loaded into suitcases were delivered into the airport, hidden
in various aircraft compartments. In the smuggling operation, Martinez
used the services of baggage handlers and supervisors. Martinez paid
the individuals for their participation after each flight where
cocaine was off-loaded. Each individual performed a specific task to
accomplish removal of the luggage from the designated incoming flights
and its delivery through the airport. The supervisors who were
involved either made sure that baggage containing cocaine on Eastern
flights was always off-loaded by the crews of conspirators or kept
non-conspirators away from aircraft during crucial times. Martinez'
crew used baggage carts to deliver the contraband to Frank Bascaus, an
agent of Mexicana Airlines, who would move the cocaine through the
airport using an elevator.
Each appellant participated in this scheme along
with a number of other baggage handlers recruited by Martinez. Raul
Anchia's role was to work inside the aircraft removing the
cocaine-filled suitcases from their hiding places. Anchia earned
$15,000 to $30,000 per flight. Luis Setien, as lead man on a ramp, was
responsible for directing his crew of baggage handlers toward the
aircraft to be unloaded and supervising his crew as cocaine-filled
suitcases were off-loaded. Initially, Setien had been paid $5,000 per
flight for his silence regarding the conspiracy once he discovered
what the others were involved in. Later, his active participation
increased and he was paid $10,000 per flight by Martinez. Ovidio
Camejo was a tractor driver in the vicinity of the off-loading
operations. He created diversions when customs agents or nonconspiring
supervisors presented a threat to the activities. Martinez paid Camejo
$4,000 to $5,000 for each flight in which he participated. Luis
Rivera-Torres worked inside the aircraft, removing cocaine-filled
suitcases, and then passed the suitcases to drivers to be taken
through the airport. Martinez paid Rivera-Torres $20,000 to $30,000
each time he performed these tasks. Livingston K. Smith was a
transfer-point driver who delivered baggage from carts at the
change-point for continuation on domestic flights. The normal loading
procedure worked as a cover and at times functioned to create a
diversion. Smith received $2,000 on one occasion from Martinez' wife,
and admitted the receipt of payments on a few occasions for moving
baggage in connection with Eastern flights.
Charges were brought against all of the known
participants: Count 1 for the importation of cocaine and Count 2 for
possession with intent to distribute cocaine. Guilty pleas were
entered by 12 co-defendants. Three co-defendants were acquitted.
Anchia, Camejo and Rivera-Torres were found guilty of both counts.
Smith and Setien were found guilty of conspiracy to import.
SETIEN
Prior Acts of Good Conduct
Setien's witness Max Mermelstein made a proffer of
his testimony outside the presence of the jury. He testified that
during the period that Setien was accused of having been involved in
the cocaine importation conspiracy, they met regularly as social
friends. During that time, Mermelstein was involved as a high level
importer and distributor of cocaine throughout the United States. He
offered Setien the lure of easy money if he would quit his job as an
Eastern Airlines baggage handler and just hang around Mermelstein
while he conducted his narcotics business. Setien refused to involve
himself in the narcotics business and repeatedly reminded Mermelstein
of the damage he was doing to society.
The government filed a motion in limine
objecting to Mermelstein's proffered testimony, on the ground that
individual acts of good conduct cannot be permitted to demonstrate
good character.
Setien argues that one of the essential elements of
the offense charged was his mens rea during the time he was
alleged to have agreed to join this conspiracy, and that Mermelstein's
offer was relevant to show he was offered an opportunity to do the
same thing and refused. The court ruled that the testimony was
irrelevant under Rule 405(b) and was not admissible under Rule 404(b).
We agree.
Evidence of good conduct is not admissible to negate
criminal intent. Michelson v. United States, 335 U.S. 469, 477,
69 S.Ct. 213, 219, 93 L.Ed. 168 (1948); United States v. Russell,
703 F.2d 1243, 1249 (11th Cir. 1983). Mermelstein's proffered
testimony was merely an attempt to portray Setien as a good character
through the use of prior "good acts". The trial judge properly
exercised his discretion in excluding this testimony as inadmissible
character evidence.
Sufficiency of Evidence
"To determine whether sufficient evidence supports
the convictions, we must view the evidence in the light most favorable
to the prosecution and decide whether a reasonable fact finder could
have reached a conclusion of guilt beyond a reasonable doubt."
United States v. Perez, 922 F.2d 782 (11th Cir. 1991) (citing
United States v. Sanchez, 722 F.2d 1501, 1505 (11th Cir.),
cert. denied, 467 U.S. 1208, 104 S.Ct. 2396, 81 L.Ed.2d 353
(1984)).
Setien submits that the finding of the jury that he
was not guilty of conspiracy to possess the cocaine as it was being
moved through the airport (count 2), eliminates the evidence so
rejected from being considered on the conspiracy to import (count 1)
and leaves his only participation the acceptance of "hush" money.
Thus, Setien argues that when he decided not to "blow the whistle" on
the operation, he was not entering into an agreement to import
cocaine, he was merely agreeing not to report the existence of the
criminal conspiracy to the authorities and that the benefit to the
conspiracy was merely an incident of that separate agreement.
This argument is unpersuasive. The jury undoubtedly
believed that Setien's involvement in the conspiracy to import ended
after the drugs were taken off the aircraft and that he had nothing to
do with the conspiracy to possess the cocaine with intent to
distribute it. See United States v. Johnson, 889 F.2d 1032,
1035 (11th Cir. 1989) (per curiam). Our review is limited to whether
the evidence is sufficient to support the guilty verdict returned by
the jury as to Setien's participation in the conspiracy to import
cocaine. Id.
Even if Setien's only involvement in the conspiracy
was accepting hush money, he would be guilty of conspiracy to import
cocaine. Proof that a conspiracy existed, and that Setien knew of its
existence is overwhelming. Setien clearly understood the objectives of
the conspiracy and that he would benefit monetarily from the
successful goal of the conspiracy. This is not "mere presence" or
"mere association"; this is an act from which the jury could infer an
intent to participate in an unlawful enterprise. United States v.
Catchings, 922 F.2d 777 (11th Cir. 1991) (per curiam); United
States v. Jackson, 700 F.2d 181, 185 (5th Cir.), cert. denied,
464 U.S. 842, 104 S.Ct. 139, 78 L.Ed.2d 132 (1983); United States
v. Hawkins, 661 F.2d 436, 453-54 (5th Cir. Unit B 1981), cert.
denied, 456 U.S. 991, 102 S.Ct. 2274, 73 L.Ed.2d 1287 (1982).
But Setien did more than simply accept hush money.
He was paid as much as $10,000 each time a cocaine flight was
off-loaded. He was the lead man in his crew and physically supervised
baggage handlers on his crew. On some occasions he acted as a lookout
while other conspirators actually unloaded the cocaine from the
aircraft. The jury could reasonably infer that Setien's action in
supervising his crew as it unloaded contraband and in acting as a
lookout were knowing and intentional acts of participating in the
conspiracy. United States v. Gordon, 712 F.2d 110, 114 (5th
Cir. 1983); United States v. Diaz, 655 F.2d 580, 584 (5th Cir.
Unit B 1981), cert. denied, 455 U.S. 910, 102 S.Ct. 1257, 71
L.Ed.2d 448 (1982). See, e.g., United States v. Pareja, 876
F.2d 1567, 1570 (11th Cir. 1989); see also United States v. Pui
Kan Lam, 483 F.2d 1202, 1208 (2nd Cir. 1973), cert. denied,
415 U.S. 984, 94 S.Ct. 1577, 1578, 39 L.Ed.2d 881 (1974) (acting as a
lookout).
Theory of Defense Jury Instruction
Setien's theory of defense instruction is based upon
his argument that mere acceptance of hush money is not legally
sufficient to convict him of importation of cocaine. The trial judge
refused to give the instruction as not supported by the facts or by
law.
A refusal to give a requested theory of defense
instruction is reversible error only if the requested instruction "(1)
was correct, (2) was not substantially covered by the court's charge
to the jury, and (3) dealt with some point in the trial so important
that failure to give the requested instruction seriously impaired the
defendant's ability to conduct his defense." United States v. Benz,
740 F.2d 903, 910 (11th Cir. 1984), cert. denied, 474 U.S. 817,
106 S.Ct. 62, 88 L.Ed.2d 51 (1985).
For the reasons we have already stated, the proposed
instruction is legally incorrect. Moreover, in addition to this
receipt of hush money there was evidence that Setien acted as a
lookout and supervised his crew's unloading of aircraft containing
cocaine. Requested instructions on a theory of defense need not be
given unless there is some foundation in the evidence for the proposed
instruction. See United States v. Gold, 743 F.2d 800, 819 (11th
Cir. 1984), cert. denied, 469 U.S. 1217, 105 S.Ct. 1196, 84
L.Ed.2d 341 (1985); United States v. Terebecki, 692 F.2d 1345,
1351 (11th Cir. 1982).
The requested instruction is Setien's version of the
facts, and is more of a jury argument than a proper theory of defense
instruction. It was properly denied. See United States v.
Russell, 717 F.2d 518, 521 (11th Cir. 1983).
Other Claimed Errors
Setien argues that there was error in admitting
financial evidence against him, and there was error in permitting the
government to argue facts not in evidence relating to the financial
evidence. A careful review of the record convinces us that Setien's
arguments are without merit.
ANCHIA
Court's Ex Parte Voir Dire of Juror
On the second day of deliberations juror Delay
failed to appear in court as scheduled. At the direction of the court
a United States Marshal located her at her home and accompanied her
back to the courthouse. The trial judge held an ex parte
conference with her to determine the cause of her tardiness. Ms. Delay
explained that she had been awake until very late the night before to
be in the company of her girlfriend who had been battered by her
husband. She described it as a terrible night that was upsetting.
Nevertheless, she was emphatic that she was physically and mentally
able to proceed as a juror, and, in fact, thought she should serve.
After the jury began deliberating, the court had the
ex parte conference transcribed and immediately had the
transcript read to all counsel. The defendant moved for a mistrial, or
for the substitution of an alternate juror based on the exclusion of
defense counsel from participation in the voir dire of the
juror, and their belief that due to the juror's experiences of the
night before, she was unable to carry out her full responsibilities in
deliberating with the jury.
The court denied the motion finding there had been no prejudice from
the inquiry and that the juror was fully capable of deliberating
fairly.
The district court wisely had the in camera
proceeding transcribed as was done in United States v. Yonn,
702 F.2d 1341 (11th Cir.), cert. denied, 464 U.S. 917, 104 S.Ct.
283, 78 L.Ed.2d 261 (1983), in order to "minimize the possibility of
prejudice, by enabling the reviewing court to examine carefully
whether any harm resulted from the ex parte contact between the
judge and juror[s]." Id. at 1345. The harm done in this case,
the defendants argue, was that the judge's voir dire of the
juror was superficial and inadequate to uncover the bias and prejudice
the juror may have developed. They rely on inferences that might be
drawn from the juror's lack of sleep, the unknown effect of the cause
of the domestic violence of the girlfriend and her husband, the
possible use of drugs by the husband, and whether the husband was a
Latin like the defendants. These and other questions, they argue, were
proper to delve into by the defendants' cross-examination of the
juror.
The short answer to this argument is that it amounts
to no more than speculation and conjecture and has no support in the
record. There is no suggestion that the juror's experiences of the
night before with her girlfriend distracted her from her
responsibilities, or could have possibly influenced her fairmindedness,
or provided a natural motivation to conclude the jury's deliberation
prematurely. See Smith v. Kelso, 863 F.2d 1564, 1572-73 (11th
Cir.), cert. denied, 490 U.S. 1072, 109 S.Ct. 2079, 104 L.Ed.2d
644 (1989). In fact, the sole ground stated in the district court in
support of this motion for a mistrial was that the juror was in no
state of mind to fairly and impartially consider the defendants' guilt
or innocence. The recitation in this court of what the defendants
might have elicited from questioning the juror was neither submitted
to nor argued to the trial judge.
Finally, the defendants exhort us to adopt a rule
that absent consent of counsel, in camera examination of jurors
should not be conducted by a trial judge without, at least, the
presence of counsel. We decline this invitation to erode the court's
discretion by such a blanket rule. Here the trial judge adopted the
better approach in following what this court said in United
States v. Caldwell, 776 F.2d 989, 997 (11th Cir. 1985):
[W]e see no prejudice, and
perhaps even some benefit, to be gained by the defendants from their
absence during the questioning of juror Campbell. Had the appellant
actually been present and had counsel taken an active role in the
questioning, it would have put the juror and the defendant in an
adversarial posture, which could have an adverse effect on a juror. .
. . Consequently, we find the appellant's absence from the proceeding
did not result in prejudice to his due process rights, and any
technical violation of Rule 43 was rendered harmless by the
precautions taken by the district court.
There was no abuse of discretion in the judge's
ex parte inquiry to ascertain the cause of the juror's tardiness
in attending court. Nor do we find any prejudice resulting from that
procedure. United States v. Adams, 799 F.2d 665, 667-68 (11th
Cir. 1986), cert. denied, 481 U.S. 1070, 107 S.Ct. 2464, 95
L.Ed.2d 873 (1987).
Prosecutor's Closing Argument
In his closing argument, the prosecutor pointed out
the government's evidence of the defendant's unexplained wealth. The
defendant had offered evidence that $16,000 of the money deposited in
his account came from the sale of a truck in Houston, Texas and argued
this to the jury. The prosecutor countered this by arguing that the
so-called sale of the truck was a sham, that the money was paid to him
by a co-conspirator. He argued that it was not reasonable for the jury
to believe that the defendant could buy a truck for $12,000, use it
for two years hauling sand and gravel over dusty roads and re-sell it
later for $16,000. The defendant contends that he showed the
prosecutor a letter from the Alvin State Bank in Houston which
purportedly described the sale of the truck to a person named Mayor,
and this being so, the government's closing argument was improper and
prejudiced the defendant's right to a fair trial.
The defendant did not offer the letter in evidence.
It is not a part of the record before us. We are in no position to
pass upon its authenticity or contents as corroborating evidence of
the defendant. Butterworth v. Bowen, 796 F.2d 1379, 1387 (11th
Cir. 1986); Lee County Branch of NAACP v. Opelika, 748 F.2d
1473 (11th Cir. 1984); Int'l Business Machines Corp. v. Edelstein,
526 F.2d 37, 45 (2nd Cir. 1975). The government cannot be faulted for
the failure of the defendant to make a record, nor can it be censored
for arguing the evidence established by it without reference to a
document that was not offered in evidence.
The government also offered evidence of unexplained
wealth by introducing a wire transfer of $4,000 to the defendant by
his wife while he was vacationing in Europe where he spent $8,000 in
charges. The defendant contends that the prosecutor should not have
argued in summation that the defendant's wife wired him the money from
Miami to Rome because their passports showed that she accompanied him
on the trip and the passports were shown to the government. The
passports were not offered in evidence and no proffer was made. They
are not a part of the record and are not before us. We decline to
consider matters dehors the record. Hassenflu v. Pyke, 491 F.2d
1094 (5th Cir. 1974) (per curiam). In any event, whether or not the
defendant's wife went to Europe with him is of no moment since the
fact remains that he spent $8,000 on a European vacation. The
prosecutor's argument did not affect the substantial rights of the
defendant.
Evidence of Uncharged Misconduct
Defendant Anchia complains that the government's
witness Washington implicated him in a cocaine importation that
occurred on July 6, 1983 in spite of the government's discovery
response that these conspirators did not import cocaine into the
United States on that date.
During the government's examination of witness
Washington, he started to testify concerning an involvement of Anchia
in the importation of cocaine in July 1983. After a sidebar, the
prosecutor limited his questions to the unloading of cocaine by Anchia
"from any flights on times other than July 6, 1983." The witness
responded that he had observed Anchia on two or three occasions
unloading cocaine from flights during the year 1983, although he could
not remember the month. Defense, counsel did not object to this
testimony. The government took pains to avoid questioning the witness
concerning uncharged misconduct. The evidence was properly before the
jury.
CAMEJO
Defendant Camejo moved to strike the testimony of
government witness Washington concerning the importation of cocaine on
July 6, 1983, because the court had excluded such evidence under Rule
404(b). After the witness began to testify, the court excused the jury
and directed the witness to base all of his testimony on events other
than the July 1983 incident.
On cross-examination, Washington testified that he
did not see Camejo participate in a cocaine transaction other than one
time in July 1983. Camejo's motion to strike this testimony was
denied. The motion should have been granted. A fair reading of the
record leads to the conclusion that according to one government
witness, Martinez, Camejo had been involved in only one narcotics
transaction, occurring on July 6, 1983. Since the government had
dismissed that allegation against Camejo, the witness's references to
the event should have been stricken. However, we find this to be
harmless error considering the overwhelming evidence of the guilt of
Camejo.
That Camejo was a member of the conspiracy, knew
about the unlawful importation of cocaine and took an active part in
it can hardly be disputed. He talked with co-conspirators on numerous
occasions about the conspiracy and how it was being carried on. He was
the driver of carts around the airport to make sure that customs
agents and other non-conspirators would not interfere with the
conspirators' off-loading of the cocaine from the airplanes by
blocking the area from view, and, if necessary by creating a
diversionary disturbance. He was involved in the conspirator's
operations about twenty-five times and was paid $3,000 to $4,000 each
time. There was evidence from which the jury could have found that
Camejo loaned his company $100,000. We find that there is no
"reasonable possibility that the evidence complained of might have
contributed to the conviction." United States v. Reed,
700 F.2d 638, 646 (11th Cir. 1983) (quoting Fahy v.
Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 230, 11 L.Ed.2d 171
(1963)).
We have considered Camejo's argument that the
district court abused its discretion by denying his motion to exclude
testimony of his financial status and find that it is without merit.
SMITH
Motion for Severance
The government introduced in evidence without
objection a book with the names and telephone numbers kept by the lead
conspirator and government witness, Martinez. He testified that he
kept the book in case he had to contact his co-conspirators in
connection with the conspiracy. The book contained Smith's name and
his mother's telephone number, but did not include the name of alleged
co-conspirator Astiazarian or his number.
The prosecutor's closing argument pointed out the
fact that Martinez recorded the number of Smith's mother so that
Martinez could contact Smith. Counsel for co-defendant Astiazarian in
his closing argument emphasized the fact that his client's name did
not appear in Martinez' book and argued that "if it's [Astiazarian's
name] in there [the book] you find him guilty because then he would
have been part of the conspiracy. That would have corroborated it."
Further, he stated, "[his name] is not in there because he wasn't part
of the conspiracy".
At the end of the closing arguments, Smith moved for
a severance because the focus of his co-defendant's counsel's argument
was that the book was essentially a roster of those involved in the
conspiracy. Therefore, those not in the book were not involved in the
conspiracy, and those in the book were members of the conspiracy and
should be convicted. The court denied the motion.
Smith insists that his motion for severance should
have been granted because co-defendant's, Astiazarian, counsel's
argument prejudiced Smith by a negative inference. Smith relies on
United States v. DeVeau, 734 F.2d 1023 (5th Cir. 1984),
that by taking an adversarial stance on the part of co-defendant's
counsel, that tactic generated prejudice to him as to deny him a fair
trial. In this case, the court found that a severance was not
warranted.
Neither Astiazarian nor Smith testified, and neither
put on evidence implicating the other. Smith was not mentioned in his
co-defendant's argument to the jury. Moreover, co-defendant Alonso,
whose name and telephone number also appeared in the book, was
acquitted. The court properly instructed the jury on three occasions
that statements of counsel are not evidence.
In United States v. Lee, 744 F.2d 1124, 1126
(5th Cir. 1984), the court succinctly stated: "The severance decision
is reviewed under an abuse of discretion standard, and to prove an
abuse the defendant undertakes the considerable burden of proving
'that he received an unfair trial and suffered compelling prejudice
against which the trial court was unable to afford protection'".
(Citations omitted).
Examination of the record in this case convinces us
that Astiazarian's counsel simply cannot be cast in the role of a
second prosecutor. His argument to the jury was directed toward
establishing Astiazarian's innocence, not toward damning Smith.
The substantial evidence supporting Smith's
conviction indicates that the trial, as a whole, was fair and Smith
was not exposed to compelling prejudice against which the district
court was unable to afford protection.
Finally, Smith asserts error in the admission of a
statement against interest made by him, and the prosecutor's
mischaracterization of evidence against him in closing argument. We
find no merit to either contention.
RIVERA-TORRES
Torres argues that the evidence was insufficient to
sustain his conviction, thus the district court erred in denying his
motion for acquittal. He contends that the government's witnesses'
contradictory statements and motives made them inherently unreliable.
"To determine whether sufficient evidence supports the convictions, we
must view the evidence in the light most favorable to the prosecution
and decide whether a reasonable fact finder could have reached a
conclusion of guilt beyond a reasonable doubt." United States v.
Perez, 922 F.2d 782 (11th Cir. 1991).
The evidence against Torres was not only adequate to
establish him as an active conspirator at the heart of the conspiracy,
but was compelling.
CONCLUSION
The judgment of conviction of each defendant is
affirmed.
AFFIRMED.
