USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1261
UNITED STATES,
Appellee,
v.
PILAR BELARDO-QUI ONES,
Defendant - Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Lynch, Circuit Judge,
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and Watson,* Judge.
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Rafael F. Castro-Lang for appellant.
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Jos A. Quiles-Espinosa, Senior Litigation Counsel, with
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whom Guillermo Gil, Acting United States Attorney, and Nelson
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P rez-Sosa, Assistant United States Attorney, were on brief for
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appellee.
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December 13, 1995
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* Of the United States Court of International Trade, sitting by
designation.
WATSON, Senior Judge. Appellant has challenged his
WATSON Senior Judge
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conviction for conspiracy to import marijuana in violation of 21
USC 592 and 963. Appellant claims that it was error for the
trial court to deny a motion for a bill of particulars, to deny a
mistrial after prejudicial testimony, to allow hearsay testimony
linking a telephone number used in the conspiracy to appellant's
fish market, to deny his Rule 29 motion for acquittal, and
finally, to increase his sentencing Guideline level for having a
managerial role in the crime. For the following reasons,
Appellant's claims are found to be without merit.
Denial of the Bill of Particulars
Denial of the Bill of Particulars
Appellant was named in Count One of the Indictment.
That count described a conspiracy that began on or about October
26, 1991 with the object of importing marijuana from Colombia and
ended on November 6, 1991 when the conspirators found out that
the boat for which they had been searching had been seized by
Venezuelan authorities. Appellant was described as joining the
conspiracy on November 2, 1991, when, in a meeting at his fish
store, he agreed to supply the boat and crew needed to meet the
Colombian boat at a point ten to fifteen miles off the coast of
St. Croix, U.S. Virgin Islands. Count I of the indictment ends
with an allegation that one of the conspirators made some calls
on November 6, 1991, after which he announced to the others that
the boat had been seized by Venezuelan authorities. He then
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called St. Croix to have the others return to Puerto Rico.
Appellant claims that it was error for the District
Court to deny his bill of particulars asking for the date on
which the Colombian boat was seized by the Venezuelan
authorities. According to Appellant that information would have
allowed him to present a defense that, for him, the crime of
conspiracy to import marijuana had become impossible to achieve
because the boat was seized prior to November 2, 1991, before he
was alleged to have met with the other conspirators.
According to Appellant, the anticipated delivery date
of November 4th means that the boat had to leave Colombia four to
five days earlier, in which case its seizure by Venezuelan
authorities had to take place before appellant's first contact
with the other conspirators at 5:00 P.M. on November 2d.
The government has defended the denial of the bill of
particulars on the grounds that the indictment provided
sufficient information, that the government did not have the
seizure information, that it provided full discovery in any
event, and that if the seizure did indeed take place prior to
November 2d, the conspirators would most likely have found out
about it quickly and would not have continued their efforts to
meet the Colombian boat. The government suggests that the seizure
took place after the rendezvous failed. The government also
asserts that the defendant was not prejudiced by the lack of the
information.
To begin with, the denial of a bill of particulars is
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reversible error only if it is a clear abuse of discretion that
causes actual prejudice to a defendant's substantial rights.
United States v. Hallock, 941 F.2d 36, 40 (1st Cir. 1991). This
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indictment contained more than enough information to allow
defendant to prepare his defense. In fact, it is prolix compared
to the indictment under discussion in United States v. Paiva, 892
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F.2d 148 (1st Cir. 1989), which did not contain any precise time
period for the conspiracy and did not even specify the date on
which the defendant joined it. Nevertheless this Court held that
the temporal specifications of "early 1983" and "the fall of
1983" were sufficient to allow the preparation of a defense
without a bill of particulars. A fortiori the temporal details
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in this indictment were sufficient to allow the defendant to
present a defense that the conspiracy had ended before he came
into the picture. It is noteworthy that the record shows no
attempt by defendant to pursue alternative means of obtaining
information about the date of the boat seizure.
Even if we go past the correctness of denying the
elaboration of an adequate indictment, there is another
insurmountable obstacle to the request for information about the
date of seizure.
Denial of this bill of particulars as to the time and
location of the seizure could not possibly be an abuse of
discretion because it could not be the basis of a legal defense
to the charge of conspiracy. It has been held that "... a
culpable conspiracy may exist even though, because of the
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misapprehension of the conspirators as to certain facts, the
substantive crime which is the object of the conspiracy may be
impossible to commit." United States v. Waldron, 590 F.2d 33, 34
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(1st Cir. 1979). In that case the conspirators thought that they
were working to import and sell valuable stolen paintings. In
reality, the only painting they delivered to Boston was a forgery
worth less than the $5000 minimum of the provision making it
unlawful to knowingly sell stolen goods.
Appellant's argument resembles the one made by
appellants in United States v. Giry, 818 F.2d 120 (1st Cir. 1987)
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that because the persons who were to import the cocaine were
agents of the Drug Enforcement Agency [DEA] the importation could
never actually occur. The court rejected "... the faulty
assumption that an expressed conspiratorial objective is negated
by its factual impossibility." 818 F.2d at 126. Here appellant
joined in a conspiracy and performed an essential role in
obtaining a boat and crew needed to accomplish the crime. Even
if intervening events had made the accomplishment of the criminal
purpose impossible all the elements of a criminal conspiracy were
present. There is no basis for making a distinction between
those who start a conspiracy that is impossible from the
beginning and one who joins in a conspiracy that has become
impossible due to intervening events unknown to the conspirators.
Appellant has cited three cases for the proposition
that a conspiracy ends when its purpose is thwarted, United
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States v. Roshko, 969 F.2d 1, 8 (2d Cir. 1992); United States v.
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Serrano, 870 F.2d 1, 8 (1st Cir. 1989); and Krulewitch v. United
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States, 336 U.S. 440, 443-44 (1949). This proposition can only
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be true if the conduct of the conspirators is no longer directed
towards accomplishment of the goal of the conspiracy, impossible
or not. In the cases cited by appellant it was held that the
conspiracy had ended either because its goal had been reached or
because the conspirators had given up. There was no continuation
of acts designed to further the conspiracy.
In United States v. Roshko, 969 F.2d 1, 8 (2d Cir.
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1992), appellant's conspiracy was held to have ended successfully
when he obtained a green card by means of a sham marriage to a
first "wife." The government, seeking to justify indicting him
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 he divorced that first wife and married another
woman. The court held that it was the obtaining of a green card
that was the object of the conspiracy and the conspiracy
terminated when that was accomplished.
In United States v. Serrano, 870 F.2d 1, 8 (1st Cir.
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1989) and Krulewitch v. United States, 336 U.S. 440, 443-44
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(1949) the issue of the duration of a conspiracy arose in the
context of whether statements should have been admitted into
evidence against defendants under the coconspirator exception to
the hearsay rule. The statements in question were held
inadmissible because they were made long after the collapse of
the conspiracy in the case of Serrano and after the end of the
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conspiracy, successful or not, in Krulewitch.
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It is apparent that these cases do not support a
proposition that conspiracies end because of impossibility when
the conspirators are continuing to actively pursue the original
criminal goal.
Denial of the Rule 29 Motion for Acquittal
Denial of the Rule 29 Motion for Acquittal
At trial the defendant's argument in favor of his Rule
29 motion was that the evidence, viewed in the light most
favorable to the government, showed only that he was doing a
favor for friends and lacked criminal intent. The record makes
it plain that there was more than enough evidence from which a
rational trier of fact could have found beyond a reasonable doubt
that the Appellant was engaged in a conspiracy to import
marijuana and had the active role of supplying the boat and crew
needed to import the marijuana. Having asserted specific grounds
for that motion, other grounds such as the impossibility argument
discussed above cannot be raised on appeal. See United States v.
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Dandy, 998 F.2d 1344, 1357 (6th Cir. 1993), cert. denied, 115 S.
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Ct. 1188 (1994). In any event, that line of argument would be to
no avail in light of the conclusion reached above that an unknown
impossibility does not end a conspiracy.
Denial of a mistrial for prejudicial testimony
Denial of a mistrial for prejudicial testimony
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During cross examination about his past crimes a
prosecution witness, Sergio Monteagudo, was asked where a prior
drug crime had occurred. He replied "Your client can recall
because I gave him 1,000 dollars at that time." Defendant moved
for a mistrial. The court denied the motion and gave a curative
instruction to the jury.
This was certainly an inappropriate and potentially
prejudicial answer. However, within the context of the events at
the trial it was not likely to affect the outcome and interfere
with the jury's ability to make an impartial determination of the
facts. The factors leading to this conclusion are those set out
in United States v. Manning, 23 F.3d 570, 574 (1st Cir. 1994),
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the severity of the cause, the surrounding context, the likely
effect of a curative instruction, and the strength of the
evidence against the defendant. In this case all these factors
militated against a mistrial. Although the summary of the
offensive testimony above gives it a certain clarity, it was not
as clear in the actual sequence of testimony. There it appears
that counsel for defendant was probing about a drug crime prior
to the one on trial and could not elicit an exact date for it.
Then he asked "where did this happen?" and the response
implicating his client was given. Although the implication is
that the payment to defendant was connected to that prior crime
it is not a clear or graphic description of defendant's
involvement.
In any event, the trial judge immediately gave the jury
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a thorough and forceful curative instruction. There is no reason
to believe that this episode interfered with the jury's ability
to reach an impartial verdict. When this is considered together
with the strong evidence of appellant's guilt developed elsewhere
at trial it is plain that the trial judge did not abuse her
discretion in denying the motion for mistrial.
Admission of hearsay testimony as to location of a telephone
Admission of hearsay testimony as to location of a telephone
number
number
The government wanted to connect Appellant, the owner
of El Relincho fish market, to telephone calls made from
telephone number 863-3318 in Fajardo, Puerto Rico, to the hotel
in St. Croix that was being used by the conspirators who were
searching for the Colombian boat. To that end Jos A. Morales,
the DEA case agent for this case was asked whether he had
determined the number of El Relincho fish market. He gave the
number 863-3318. Later, on cross examination, it was brought out
that in the telephone company records that number is listed only
as being invoiced to a Julia Amparo G mez at a General Delivery
address in Puerto Rural, Puerto Rico. On redirect examination no
connection was made between that person and the Appellant or El
Relincho fish market. Over a hearsay objection, Morales was
allowed to testify that on two occasions he had called the number
in question and had been told by a person on the other end that
he had reached El Relincho fish market.
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The linking of the telephone number in question and
Appellant's fish market was first made in testimony to which no
objection was made. The admission of that testimony was not
plain error. The later testimony, based on what the agent was
told when he dialed that number, was inadmissible hearsay and
should not have been allowed in evidence. The admission of that
testimony was harmless error. In neither instance was the
evidence concerning the telephone number important in light of
the abundance of other evidence linking the Appellant and his
fishmarket to the activity of the conspiracy. This is not an
instance where the error would cause a "miscarriage of justice"
or cause the "fundamental fairness or basic integrity of the
proceedings" to be skewed in a major respect. See United States
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v. Taylor, 54 F.3d 967, 973 (1st Cir. 1995).
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Imposition of an increase in Sentencing Guideline level
Imposition of an increase in Sentencing Guideline level
Appellant argues that he came into the conspiracy at a
late stage and did not have a true managerial role. Accordingly,
he asserts that it was error for the sentencing Judge to make an
upward adjustment of 3 points in his guideline level. Appellant
argues that he should have received a 2 point decrease for being
a minor participant in the conspiracy.
This contention has no merit. There is no clear error
in the sentencing judge's imposition of an increase for
managerial participation. The recruiting, supplying, and
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instructing of those who are to perform an essential mission of
picking up marijuana at sea plainly indicates a managerial role.
It has been held that "'[e]fforts to marshall other individuals
for the purpose of executing the crime' are enough to demonstrate
sufficient control over a participant for the purposes of
3B1.1." United States v. Sax, 39 F.3d 1380 (7th Cir. 1994)
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(quoting United States v. Carson, 9 F.3d 576, 585 (7th Cir.
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1993). Accordingly, it was not erroneous for the sentencing
judge to make an upward adjustment of 3 points under 3B1.1 of
the Sentencing Guidelines. See United States v. Vargas, 16 F.3d
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155, 160 (7th Cir. 1994).
Affirmed.
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