Professional Documents
Culture Documents
No. 94-1261
UNITED STATES,
Appellee,
v.
Defendant - Appellant.
____________________
____________________
Before
_____________________
Guillermo Gil,
_____________
P rez-Sosa, Assistant
__________
Acting United
Litigation
Counsel, with
States Attorney,
and Nelson
______
on brief for
appellee.
____________________
designation.
WATSON,
WATSON
Senior Judge.
Senior Judge
____________
Appellant
has challenged
his
USC
marijuana in violation of 21
Appellant claims
linking a
fish
market, to
finally,
managerial
testimony
deny
his Rule
29
motion for
acquittal,
and
role
in
the
crime.
For
the
following
reasons,
Appellant
was named
in Count
One of
the Indictment.
That
26, 1991 with the object of importing marijuana from Colombia and
ended
the
on November 6, 1991
boat for
Venezuelan authorities.
conspiracy on November
store, he agreed
Colombian
been seized by
as joining the
2, 1991, when,
in a meeting at
Virgin Islands.
boat had
Count I
been seized
by Venezuelan
-2-
his fish
the
some calls
authorities.
He then
Appellant
Court
which
to deny his
the
authorities.
allowed him
conspiracy to
claims that
bill of
Colombian
to present a
error for
particulars asking
boat
According to
it was
was
seized
the District
for the
by
the
date on
Venezuelan
defense that,
for him,
the crime
of
impossible to achieve
According to Appellant,
date
of November 4th means that the boat had to leave Colombia four to
five days
earlier,
authorities had
in
which
to take
case its
seizure
by
Venezuelan
first contact
particulars
sufficient
seizure
the
November 2d,
grounds
information, that
information,
event, and
about
on
that if the
that
the
that it
the
indictment
government did
provided
seizure did
full
of
provided
not have
the
discovery in
any
prior to
found out
their efforts to
meet the Colombian boat. The government suggests that the seizure
took place
after
the rendezvous
failed.
The government
also
information.
denial of a bill of
particulars is
-3-
if it is a clear
causes
actual prejudice
to
defendant's substantial
indictment
contained
more
than
enough
rights.
information
to
This
allow
F.2d 148
(1st Cir. 1989), which did not contain any precise time
period for
the temporal
1983"
specifications of
were sufficient
without a bill of
in
this indictment
present
to
date on
"early
allow the
particulars.
1983" and
preparation
A fortiori the
__________
were sufficient
to allow
"the fall
of a
of
defense
temporal details
the
defendant to
before he came
into
the picture.
attempt
It
by defendant
is noteworthy that
to pursue
the record
alternative means
shows no
of obtaining
Even
elaboration
if we
of
an
go
past the
adequate
correctness
indictment,
of denying
there
is
the
another
date of seizure.
location
of
discretion
to the
culpable
the
of particulars as to the
seizure could
not
possibly
charge of
conspiracy.
conspiracy
may
It
exist
-4-
an abuse
of
has been
even
be
time and
though,
held
that "...
because
of
the
misapprehension
substantive
impossible
conspirators
as to
object of the
certain facts,
the
conspiracy may be
were
of the
paintings.
In
worth
less than
the $5000
minimum of
the provision
making it
Appellant's
argument
resembles
the
one
made
by
appellants in United States v. Giry, 818 F.2d 120 (1st Cir. 1987)
_____________
____
that
because the
persons who
were to
import the
cocaine were
never
actually
occur.
assumption that
by
The
court
in
obtaining
"...
the
faulty
joined
rejected
conspiracy
and
performed an
Here appellant
essential
role
in
Even
present.
There
is no
basis for
making a
distinction between
those
who
beginning
start
and
conspiracy
one who
that
joins in
is
impossible
conspiracy that
from
the
has become
Appellant
that
States v.
______
has
conspiracy ends
cited three
when
cases for
its purpose
is
the proposition
thwarted, United
______
-5-
443-44 (1949).
This proposition
or not.
conspiracy
United
______
can only
is no longer directed
by appellant it
the
In United States
_____________
v. Roshko,
______
969 F.2d 1,
8 (2d
Cir.
when he obtained a
first
"wife."
a sham marriage to
after the five year statute of limitations had run on that crime,
had argued that the conspiracy continued through the later points
in
time when
woman.
that
he divorced
that first
wife and
married another
was
the
object
of
the
conspiracy
and
the
a green card
conspiracy
In
1989)
and Krulewitch
__________
(1949) the
context
issue of
of whether
v.
United States,
_____________
the duration of
statements
the
hearsay
rule.
The
870 F.2d 1,
336
8 (1st Cir.
U.S. 440,
443-44
a conspiracy arose
in the
should have
been admitted
into
statements
in
question
were
held
of
the conspiracy
in the case of
end of the
-6-
It
is
apparent that
the conspirators
criminal goal.
these
cases
do not
support
when
29
motion
favorable
was
that the
to the
evidence,
viewed
government, showed
in
only that
the light
he was
The
most
doing a
record makes
that
the
Appellant
was
engaged
in
conspiracy
to
import
Dandy, 998 F.2d 1344, 1357 (6th Cir. 1993), cert. denied,
_____
_____ ______
115 S.
-7-
During
cross
prosecution witness,
drug
crime had
because
for a
examination
about
his
occurred.
He replied
crimes
where a prior
"Your client
mistrial.
past
can recall
Defendant moved
This
was
prejudicial answer.
the trial
certainly an
inappropriate
and potentially
facts.
in United States v.
_____________
the severity of
effect
of
Manning, 23 F.3d
_______
curative
1994),
likely
instruction,
and
the strength
mistrial.
these factors
against
offensive
sequence of testimony.
to the one
Then
he
"where
it
is
not
did
summary of
There
asked
the
the
militated
Although
of
this
was given.
and
or
graphic
crime prior
the
for it.
response
clear
it appears
happen?"
description
of
the
is
prior crime
defendant's
involvement.
-8-
There is no reason
to believe that
to
at
trial it
is plain
that the
trial judge
did not
abuse her
Admission
Admission
of hearsay
of hearsay
testimony as
testimony as
to
to
location of
location of
a telephone
a telephone
number
number
The
of
El
Relincho
telephone
in
government wanted to
fish
market,
telephone
the
to
DEA case
determined the
agent
for
boat.
this case
number of El
calls
made
from
by the
To that end
was
asked
Jos
A. Morales,
whether he
had
He gave the
number 863-3318.
that
as being
Relincho fish
market.
Over
On redirect examination no
a hearsay
objection, Morales
or El
was
-9-
that
The
linking of
the telephone
objection
plain
told
was made.
error.
The
The later
when he dialed
was
admission of
evidence concerning
error.
the telephone
the abundance
of other
fishmarket to
the activity
that testimony
testimony, based on
that number,
harmless
question and
In
The
neither
admission of that
instance was
the Appellant
of the conspiracy.
was not
hearsay and
number important in
evidence linking
which no
was inadmissible
testimony
number in
This is
the
light of
and his
not an
"miscarriage of justice"
or
cause the
"fundamental
proceedings" to be skewed
fairness or
basic integrity
in a major respect.
of the
he asserts
upward
Accordingly,
Appellant
This
in
the
managerial
sentencing
judge's
participation.
imposition
The
of
recruiting,
an
increase
for
supplying,
and
-10-
It
mission of
sufficient control
over
a participant
3B1.1."
United States
______________
(quoting
United States v.
______________
1993).
Accordingly,
judge to make
the Sentencing
v. Sax,
___
it was
39 F.3d
Carson, 9
______
not
for
F.3d
the purposes
1380 (7th
576, 585
erroneous for
Affirmed.
________
of
Cir. 1994)
(7th Cir.
the sentencing
under
3B1.1 of
Vargas, 16 F.3d
______
-11-