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USCA1 Opinion

UNITED STATES COURT OF APPEALS


FOR THE FIRST CIRCUIT
____________________

No. 94-1261

UNITED STATES,

Appellee,

v.

PILAR BELARDO-QUI ONES,

Defendant - Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Carmen Consuelo Cerezo, U.S. District Judge]


___________________

____________________

Before

Torruella, Chief Judge,


___________

Lynch, Circuit Judge,


_____________

and Watson,* Judge.


_____

_____________________

Rafael F. Castro-Lang for appellant.


_____________________
Jos
A. Quiles-Espinosa, Senior
_________________________
whom

Guillermo Gil,
_____________

P rez-Sosa, Assistant
__________

Acting United

Litigation

Counsel, with

States Attorney,

United States Attorney, were

and Nelson
______

on brief for

appellee.

____________________

December 13, 1995


____________________
____________________

Of the United States

Court of International Trade, sitting by

designation.

WATSON,
WATSON

Senior Judge.
Senior Judge
____________

Appellant

has challenged

his

conviction for conspiracy to import

USC

592 and 963.

marijuana in violation of 21

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

linking a

fish

telephone number used in the conspiracy to appellant's

market, to

finally,

managerial

testimony

deny

his Rule

29

motion for

acquittal,

and

to increase his sentencing Guideline level for having a

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

the

on November 6, 1991

boat for

which they had

Venezuelan authorities.

conspiracy on November

store, he agreed

Colombian

when the conspirators

been searching had

been seized by

Appellant was described

as joining the

2, 1991, when,

in a meeting at

to supply the boat and crew

boat at a point ten to

St. Croix, U.S.

Virgin Islands.

with an allegation that

boat had

needed to meet the

Count I

of the indictment ends

one of the conspirators made

been seized

by Venezuelan

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his fish

fifteen miles off the coast of

on November 6, 1991, after which he announced

the

found out that

some calls

to the others that

authorities.

He then

called St. Croix to have the others return to Puerto Rico.

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

Appellant that information would have

defense that,

import marijuana had become

for him,

the crime

of

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,

authorities had

in

which

to take

case its

seizure

by

place before appellant's

Venezuelan

first contact

with the other conspirators at 5:00 P.M. on November 2d.

The government has defended

particulars

sufficient

seizure

the

November 2d,

grounds

information, that

information,

event, and

about

on

that if the

that

the

that it

the

the conspirators would

indictment

government did

provided

seizure did

it quickly and would

the denial of the bill

full

of

provided

not have

the

discovery in

any

indeed take place

prior to

most likely have

found out

not have continued

their efforts to

meet the Colombian boat. The government suggests that the seizure

took place

after

the rendezvous

asserts that the defendant

failed.

The government

also

was not prejudiced by the lack of the

information.

To begin with, the

denial of a bill of

particulars is

-3-

reversible error only

if it is a clear

abuse of discretion that

causes

actual prejudice

to

defendant's substantial

United States v. Hallock, 941 F.2d


_____________
_______

indictment

contained

more

than

36, 40 (1st Cir. 1991).

enough

defendant to prepare his defense.

rights.

information

to

This

allow

In fact, it is prolix compared

to the indictment under discussion in United States v. Paiva, 892


_____________
_____

F.2d 148

(1st Cir. 1989), which did not contain any precise time

period for

the conspiracy and did

which the defendant joined it.

the temporal

1983"

specifications of

were sufficient

without a bill of

in

this indictment

present

to

date on

Nevertheless this Court held that

"early

allow the

particulars.

1983" and

preparation

A fortiori the
__________

were sufficient

a defense that the

not even specify the

to allow

"the fall

of a

of

defense

temporal details

the

conspiracy had ended

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

information about the date of the boat seizure.

Even

elaboration

if we

of

an

go

past the

adequate

correctness

indictment,

insurmountable obstacle to the

of denying

there

is

the

another

request for information about the

date of seizure.

Denial of this bill

location

of

discretion

to the

culpable

the

of particulars as to the

seizure could

not

possibly

because it could not be the

charge of

conspiracy.

conspiracy

may

It

exist

-4-

an abuse

of

basis of a legal defense

has been

even

be

time and

though,

held

that "...

because

of

the

misapprehension

substantive

impossible

conspirators

crime which is the

as to

object of the

certain facts,

the

conspiracy may be

to commit." United States v. Waldron, 590 F.2d 33, 34


_____________
_______

(1st Cir. 1979).

were

of the

In that case the conspirators thought that they

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)
_____________
____

that

because the

persons who

were to

import the

cocaine were

agents of the Drug Enforcement Agency [DEA] the importation could

never

actually

occur.

assumption that

by

The

court

in

obtaining

"...

the

faulty

an expressed conspiratorial objective is negated

its factual impossibility."

joined

rejected

conspiracy

and

818 F.2d at 126.

performed an

a boat and crew needed

Here appellant

essential

role

to accomplish the crime.

in

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

beginning

start

and

conspiracy

one who

that

joins in

is

impossible

conspiracy that

from

the

has become

impossible due to intervening events unknown to the conspirators.

Appellant

that

States v.
______

has

conspiracy ends

cited three

when

cases for

its purpose

is

the proposition

thwarted, United
______

Roshko, 969 F.2d 1, 8 (2d Cir. 1992); United States v.


______
_____________

-5-

Serrano, 870 F.2d 1, 8 (1st Cir. 1989); and Krulewitch v.


_______
__________

States, 336 U.S. 440,


______

443-44 (1949).

This proposition

be true if the conduct of the conspirators

towards accomplishment of the

or not.

In the cases cited

conspiracy

United
______

can only

is no longer directed

goal of the conspiracy, impossible

by appellant it

was held that

the

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.

1992), appellant's conspiracy was held to have ended successfully

when he obtained a

first

"wife."

green card by means of

The government, seeking

a sham marriage to

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

woman.

that

he divorced

that first

wife and

married another

The court held that it was the obtaining of

was

the

object

of

the

conspiracy

and

the

a green card

conspiracy

terminated when that was accomplished.

In

1989)

United States v. Serrano,


_____________
_______

and Krulewitch
__________

(1949) the

context

issue of

of whether

v.

United States,
_____________

the duration of

statements

evidence against defendants under

the

hearsay

rule.

The

inadmissible because they

870 F.2d 1,

336

8 (1st Cir.

U.S. 440,

443-44

a conspiracy arose

in the

should have

been admitted

into

the coconspirator exception to

statements

were made long

in

question

were

after the collapse

held

of

the conspiracy

in the case of

Serrano and after the


_______

end of the

-6-

conspiracy, successful or not, in Krulewitch.


__________

It

is

apparent that

proposition that conspiracies

the conspirators

criminal goal.

these

cases

do not

support

end because of impossibility

are continuing to actively

when

pursue the original

Denial of the Rule 29 Motion for Acquittal


Denial of the Rule 29 Motion for Acquittal

At trial the defendant's argument

29

motion

favorable

was

that the

to the

evidence,

viewed

government, showed

favor for friends and

it plain that there

in favor of his Rule

in

only that

lacked criminal intent.

was more than enough

the light

he was

The

most

doing a

record makes

evidence from which

rational trier of fact could have found beyond a reasonable doubt

that

the

Appellant

was

engaged

marijuana and had the active role

needed to import the marijuana.

in

conspiracy

to

import

of supplying the boat and crew

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.


___ _____________

Dandy, 998 F.2d 1344, 1357 (6th Cir. 1993), cert. denied,
_____
_____ ______

Ct. 1188 (1994).

115 S.

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

-7-

During

cross

prosecution witness,

drug

crime had

because

for a

examination

about

his

Sergio Monteagudo, was asked

occurred.

He replied

crimes

where a prior

"Your client

I gave him 1,000 dollars at that time."

mistrial.

past

can recall

Defendant moved

The court denied the motion and gave a curative

instruction to the jury.

This

was

prejudicial answer.

the trial

certainly an

inappropriate

and potentially

However, within the context of the events at

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.
_____________

the severity of

effect

of

Manning, 23 F.3d
_______

the cause, the

curative

570, 574 (1st Cir.

1994),

surrounding context, the

likely

instruction,

evidence against the defendant.

and

the strength

In this case all

mistrial.

these factors

against

offensive

testimony above gives it a certain clarity, it was not

sequence of testimony.

that counsel for defendant

to the one

Then

he

"where

implicating his client

that the payment to

it

is

not

did

summary of

There

was probing about a drug

on trial and could not

asked

the

the

militated

as clear in the actual

Although

of

this

was given.

and

or

graphic

crime prior

the

for it.

response

Although the implication

defendant was connected to that

clear

it appears

elicit an exact date

happen?"

description

of

the

is

prior crime

defendant's

involvement.

In any event, the trial judge immediately gave the jury

-8-

a thorough and forceful curative instruction.

There is no reason

to believe that

the jury's ability

to

this episode interfered with

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
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

number 863-3318 in Fajardo,

St. Croix that

was being used

searching for the Colombian

the

to

connect Appellant, the owner

DEA case

determined the

agent

for

boat.

this case

number of El

calls

made

from

Puerto Rico, to the hotel

by the

conspirators who were

To that end

was

asked

Jos

A. Morales,

whether he

Relincho fish market.

had

He gave the

number 863-3318.

that

Later, on cross examination, it was brought out

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.

connection was made between

Relincho fish

market.

Over

On redirect examination no

that person and the Appellant

a hearsay

objection, Morales

or El

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

he had reached El Relincho fish market.

-9-

that

The

linking of

the telephone

Appellant's fish market was

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

instance where the

that testimony

testimony, based on

that number,

harmless

question and

first made in testimony to

In

The

neither

admission of that

instance was

the Appellant

of the conspiracy.

error would cause a

was not

hearsay and

number important in

evidence linking

which no

what the agent was

was inadmissible

should not have been allowed in evidence.

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

See United States


___ _____________

v. Taylor, 54 F.3d 967, 973 (1st Cir. 1995).


______

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.

he asserts

upward

Accordingly,

that it was error for the sentencing Judge to make an

adjustment of 3 points in his guideline level.

argues that he should have received a

a minor participant in the conspiracy.

Appellant

2 point decrease for being

This

in

the

managerial

contention has no merit.

sentencing

judge's

participation.

imposition

The

There is no clear error

of

recruiting,

an

increase

for

supplying,

and

-10-

instructing of those who

are to perform an essential

picking up marijuana at sea

It

mission of

plainly indicates a managerial role.

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

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

an upward adjustment of 3 points

Guidelines. See United States v.


_____________

155, 160 (7th Cir. 1994).

Affirmed.
________

of

Cir. 1994)

(7th Cir.

the sentencing

under

3B1.1 of

Vargas, 16 F.3d
______

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