United States Court of Appeals,
Eleventh Circuit.
No. 94-4962.
UNITED STATES of America, Plaintiff-Appellee,
v.
Melva LOZANO-HERNANDEZ, Armando Vililla, Huberto Torres-Tamayo,
Defendants-Appellants.
July 31, 1996.
Appeal from the United States District Court for the Southern
District of Florida. (No. 93-148-CR-CCA), C. Clyde Atkins, Judge.
Before COX and BARKETT, Circuit Judges, and BRIGHT*, Senior Circuit
Judge.
BARKETT, Circuit Judge:
Melva Lozano-Hernandez ("Lozano-Hernandez"), Armando Vililla
("Vililla"), and Huberto Torres-Tamayo ("Torres-Tamayo") appeal
their convictions for various drug violations after a jury trial.1
All three appellants were convicted of attempted possession with
the intent to distribute cocaine in violation of 21 U.S.C. § 841.
Additionally, Lozano-Hernandez was convicted of conspiracy to
possess with the intent to distribute cocaine in violation of 21
U.S.C. § 846, conspiracy to possess with the intent to distribute
heroin also in violation of 21 U.S.C. § 846, and possession with
the intent to distribute heroin in violation of 21 U.S.C. § 841.
Vililla and Torres-Tamayo also assert that their sentences were
*
Honorable Myron H. Bright, Senior U.S. Circuit Judge for
the Eighth Circuit, sitting by designation.
1
Co-defendant Eliesar Leal, who is not involved in this
appeal, pled guilty to conspiracy to possess with the intent to
distribute cocaine in violation of 21 U.S.C. § 846, and attempted
possession with the intent to distribute cocaine in violation of
21 U.S.C. § 841.
incorrectly calculated under the sentencing guidelines.
On December 5, 1992, a confidential informant, Antonio Olivera
("Olivera"), introduced an undercover agent, Metro-Dade Detective
Jerry Rodriguez ("Rodriguez"), to appellant Melva Lozano-Hernandez.
The meeting was held at Olivera's home in Miami. Lozano-Hernandez
was seeking a way to ship cocaine into Miami from Colombia.
Rodriguez claimed that he was an airline employee, who could use
his connections at Miami International Airport to provide
protection for drugs smuggled to Miami from Colombia. Rodriguez
offered to help Lozano-Hernandez smuggle cocaine in suitcases on
either American or Avianca Airlines at a cost of $3,000 per
kilogram. Lozano-Hernandez replied that she would discuss these
plans with her people in Colombia and get back with Rodriguez and
Olivera.
On January 30, 1993, Lozano-Hernandez called Olivera from
Colombia to confirm the negotiated smuggling venture. Olivera
returned her call and tape recorded the conversation, in which
Lozano-Hernandez informed him that her Colombian associates were
ready to begin the venture and confirmed the method and fee for the
transportation. She indicated that she would be returning to the
United States within the week to represent the Colombian
organization in both the importation and subsequent distribution of
the drugs.
Lozano-Hernandez returned to Miami from Colombia the following
week and met with Olivera and Detective Rodriguez, informing them
that up to 50 kilograms of were cocaine ready for immediate
shipment from Colombia and that the means of transportation and
price were acceptable to the organization. Lozano-Hernandez
established communication by facsimile machine (fax) with her
Colombian connection, Alejandro de la Verde ("de la Verde"), who
would provide detailed descriptions of the suitcases that he
arranged to be placed on the flights out of Colombia.
A week later de la Verde faxed a message to Lozano-Hernandez
confirming that the shipment was ready and that he would further
fax a description of the suitcase after it had been packed for
delivery to the airplane. He apprised Lozano-Hernandez that the
quality of the cocaine was "super good" and that the shipments
would be continuous. On February 19th de la Verde sent a detailed
fax description of the suitcase containing the cocaine and asked
Lozano-Hernandez to provide him with the details of the manner of
delivery and payment. Lozano-Hernandez faxed Verde details of
their plans to distribute the drugs in the first suitcase. That
same day de la Verde faxed Lozano-Hernandez confirmation of the
flight and baggage claim ticket number for the first suitcase of
cocaine.
On February 24th, after the Colombian National Police seized
the suitcase containing 35 kilograms of cocaine, Lozano-Hernandez
met with Detective Rodriguez to discuss the loss of the cocaine.
She assured him during that tape-recorded meeting that her
organization was so powerful that the loss of one suitcase meant
nothing to them and that a second suitcase would be ready to ship
either the next Sunday or Wednesday. She promised to obtain the
Colombian news articles confirming the seizure, which arrived the
next day by fax.
Three days later de la Verde faxed a detailed description of
the second suitcase packed for delivery to Avianca Airlines in
Colombia. A week later Lozano-Hernandez gave Olivera, the
confidential informant, a sample of heroin and asked him to help
her distribute a package of heroin she planned to have de la Verde
ship with the second suitcase of cocaine. She did not want anyone
else but Olivera to know about the heroin, because she did not want
to pay a higher transportation fee.
On March 6th, the second suitcase described by de la Verde
arrived at Miami International Airport aboard Avianca Airlines.
The U.S. Customs Service seized the suitcase, and turned it over to
the Drug Enforcement Administration for a planned delivery to
Lozano-Hernandez, so that enforcement agencies could identify the
persons to whom Lozano-Hernandez and de la Verde intended to sell
the drugs in the United States. The suitcase contained 21 separate
packages, including 20 kilograms of 96 percent pure cocaine and one
half kilogram of 94 percent pure heroin. The United States
wholesale price of the cocaine at that time was $18,000 per
kilogram. The wholesale price of the heroin was $100,000. Lozano-
Hernandez had asked Olivera to sell the one pound of heroin for
$115,000 to his clients.
Detective Rodriguez called Lozano-Hernandez to arrange to meet
the next day to discuss delivery. Lozano-Hernandez met with
Detective Rodriguez, who recorded her agreement to give him $63,000
cash in advance before the cocaine was delivered. She also
indicated that her Colombian organization was ready to ship an
additional 50 kilograms and agreed to a reduced transportation fee
of $2,500 per kilogram of cocaine for this next load. On March
8th, Lozano-Hernandez notified Rodriguez that she did not yet have
the $63,000. She said that she had a second separate buyer for the
cocaine (the "Fort Lauderdale organization") and that she was
waiting to obtain that buyer's phone numbers. Meanwhile, she asked
Detective Rodriguez to release eight of the 21 kilograms so she
could sell part of the cocaine in order to obtain the $63,000.
Detective Rodriguez refused and maintained he would not release the
suitcase without the fee paid up front.
On March 9th, Lozano-Hernandez made numerous calls on her
cellular phone, reporting to Olivera throughout the day that she
had not been able to collect the $63,000. Late that evening she
called Olivera to inform him that she finally had all of the money.
Her cellular phone records reveal that the call she made at 8:06
p.m., just prior to informing Olivera that she had the money, was
to appellant Huberto Torres-Tamayo's home.
Lozano-Hernandez was tape-recorded in meeting with Detective
Rodriguez at Olivera's home the next day. She brought with her
$63,000 in large bills to pay the transportation fee. After
Detective Rodriguez told her that he could not deliver the suitcase
until the next day, they discussed her returning the $63,000 to her
buyer pending delivery of the cocaine the next day. She told
Detective Rodriguez that she was going to discuss this with her
buyer and made two calls from her cellular phone during the
meeting. The tape recording of her side of the telephone
conversations, in conjunction with her cellular phone records,
reveal that she reported the status of the delayed delivery of the
cocaine during calls made to Torres-Tamayo's home and to his
cellular phone.
Early the next morning, Lozano-Hernandez again delivered
$63,000, but in smaller bills, to Detective Rodriguez at Olivera's
house. Olivera was told that this money came from Lozano-
Hernandez's second buyer, the Fort Lauderdale organization.
Detective Rodriguez took the money and a white Suburban truck
provided by Lozano-Hernandez to DEA headquarters, where the money
was seized, and the white truck was outfitted with surveillance
electronics and packed with the suitcase containing the drugs for
the "controlled" delivery.
At 9:02 a.m. the same day, Lozano-Hernandez left Olivera's
house and met with her ex-husband, Armando Vililla, at a shopping
center near his apartment. At approximately 11:30 a.m., Rodriguez
drove the truck back to meet Lozano-Hernandez at Olivera's house.
The suitcase was placed in the garage, where Lozano-Hernandez
separated the package of heroin and gave it to Olivera. Lozano-
Hernandez and Vililla then tested the remaining 20 kilogram
packages of cocaine for quality and repacked them in a cardboard
box. According to Olivera, Lozano-Hernandez had hired Vililla to
deliver the cocaine to her clients and had agreed to pay him
$2,000. At approximately 1:30 p.m., just as Vililla was leaving
the house to deliver the box of cocaine, Lozano-Hernandez used her
cellular phone to call the home phone number for Torres-Tamayo. At
that moment, Detective Rodriguez overheard Lozano-Hernandez saying:
"Huberto. Everything's OK, He's on his way. I'll meet you half
way."
Surveillance agents followed Vililla to a Texaco Gas station.
They observed Vililla park the truck containing the cocaine nearby,
and then use the pay phone at the station. They also observed
Torres-Tamayo and Eliesar Leal arrive in Torres-Tamayo's car.
After talking to Vililla, Torres-Tamayo drove his car next to the
truck containing the cocaine, where Leal got out and drove off in
the truck containing the cocaine. Leal was later arrested.
Torres-Tamayo, Lozano-Hernandez, and Vililla were arrested
together at the Texaco Station. The detective who arrested Torres-
Tamayo noted that he acted as if the detective did not exist and
attempted to leave the scene by walking away, even after the
officers shouted that he was under arrest. The cellular phone that
Torres-Tamayo used to communicate with Lozano-Hernandez was seized
from his person upon arrest. Torres-Tamayo consented to a search
of his home. The agents seized $210,600 cash in large bills
located in cardboard boxes in a locked closet in Torres-Tamayo's
bedroom. The court admitted $207,600 of this cash as evidence at
trial.
Lozano-Hernandez
Lozano-Hernandez raises one issue on appeal. She contends
that the district court abused its discretion in refusing to grant
her motions for mistrial based on government witnesses' improper
innuendo at trial that she had threatened the confidential
informant and was otherwise dangerous, thereby incurably
prejudicing the jury against her defense of entrapment. She claims
that she is, therefore, entitled to a new trial.
This court reviews the district court's refusal to grant a
mistrial for an abuse of discretion. United States v. Perez, 30
F.3d 1407, 1410 (11th Cir.1994). When a curative instruction is
given, this court reverses only if the evidence "is so highly
prejudicial as to be incurable by the trial court's admonition."
United States v. Funt, 896 F.2d 1288, 1295 (11th Cir.1990) (quoting
United States v. Tenorio-Angel, 756 F.2d 1505, 1512 (11th
Cir.1985)). Upon carefully reviewing this record, we cannot say
that under the totality of the circumstances presented in this
case, including the overwhelming evidence of guilt presented
against Lozano-Hernandez, the district court abused its discretion
in denying the motion for mistrial. Accordingly, Lozano-Hernandez'
convictions and sentencing are affirmed.
Vililla
Vililla contends on appeal that because the jury acquitted
him of conspiracy to possess with intent to distribute cocaine, the
evidence was insufficient to support his conviction for the
substantive count of attempted possession with intent to distribute
cocaine. Regarding his sentence, Vililla argues that the
sentencing court improperly denied his request for a downward
adjustment for acceptance of responsibility, and erroneously
determined that Vililla was not a minor or minimal participant in
the offense. We find no merit to Vililla's arguments.
In general, a review of the evidence is limited to a
determination of whether a reasonable juror could find guilt beyond
a reasonable doubt. United States v. Funt, 896 F.2d 1288, 1291-92
(11th Cir.1990). All evidence must be viewed in the light most
favorable to the government, with all reasonable inferences drawn
in favor of supporting the verdict. Id. Under the facts of this
case, the jury could have convicted Vililla of attempted
possession, and consistently acquitted him of conspiracy to possess
with intent to distribute cocaine. The attempt count was based on
the events of March 11, 1993, and was not coterminous with the
charged conspiracy, which spanned several months and involved
cocaine transactions prior to Vililla's involvement in the scheme.
Different elements comprise the two offenses, and, in any event,
inconsistent jury verdicts are not necessarily a cause for reversal
of a conviction, United States v. Powell, 469 U.S. 57, 65-67, 105
S.Ct. 471, 477, 83 L.Ed.2d 461 (1984) (acquittal may reflect
exercise of lenity). Accordingly, we find that sufficient evidence
supported the jury's conviction of Vililla for attempted possession
with intent to distribute cocaine.
We likewise affirm Vililla's sentence. A sentencing court's
factual findings for purposes of applying the Federal Sentencing
Guidelines are reviewed for clear error. United States v. Erves,
880 F.2d 376, 381 (11th Cir.1989); United States v. Hansley, 54
F.3d 709 (11th Cir.1995); United States v. Marin, 916 F.2d 1536,
1538 (11th Cir.1990). In light of Vililla's actions in this case,
we cannot say that the district court committed clear error in
concluding that Vililla's role in the offense surpassed that of a
minor or minimal participant, and that he was not entitled to a
downward adjustment for acceptance of responsibility.
Torres-Tamayo
Torres-Tamayo makes several arguments regarding his
conviction. Like Vililla, Torres-Tamayo contends that the evidence
was insufficient to support his conviction. He also argues that
the district court abused its discretion in admitting evidence of
currency seized at his residence following his arrest, because the
government failed to establish at trial a connection between the
money and the offense charged. Finally, he claims that the court
abused its discretion in refusing to give his "theory of defense"
instruction, which he asserts was properly based upon the evidence
adduced at trial. Regarding his sentence, Torres-Tamayo contends
that the court erred by improperly attributing too great a quantity
of drugs to him in calculating his base offense level, and by
enhancing his sentence based upon an erroneous determination that
he had played a leadership role in the offense.
Torres-Tamayo was convicted under the theory that he aided
and abetted the offense. The standard test for determining whether
one aided and abetted a criminal offense is whether (1) a
substantive offense was committed, (2) an act by the defendant
contributed to and furthered the offense, and (3) the defendant
intended to aid its commission. United States v. Jones, 913 F.2d
1552, 1558 (11th Cir.1990); United States v. Pareja, 876 F.2d
1567, 1568 (11th Cir.1989). Although much of the evidence against
Torres-Tamayo is circumstantial, when viewed in the light most
favorable to the government, we find that the record sufficiently
supports the jury's verdict, and that the verdict is a reasonable
construction of the evidence. We also find that the trial court
did not abuse its discretion in admitting currency seized at
Torres-Tamayo's residence following his arrest, or in refusing to
give his "theory of defense" instruction.
Regarding Torres-Tamayo's sentence, the district court did
not commit clear error in attributing to Torres-Tamayo
responsibility for 20 kilograms of cocaine to determine his base
offense level. Among other things, the evidence at trial reflected
that Torres-Tamayo had at one point provided the full
transportation fee of $63,000 to Lozano-Hernandez for all twenty
kilograms of cocaine. However, we do find clear error in the
district court's decision to enhance Torres-Tamayo's sentence on
the basis that he had played a leadership role in the offense.
Section 3B1.1(c) provides for a two-level enhancement when
"the defendant was an organizer, leader, manager, or supervisor in
any criminal activity other than described in (a) or (b)...."
U.S.S.G. § 3B1.1(c) (Nov. 1993). The evidence regarding Torres-
Tamayo's role in the narcotics organization was limited to a period
of three days. There was absolutely no evidence that he supervised
or controlled anyone, or that he exercised management
responsibility over the property, assets, or activities of the
criminal organization. At best, the evidence shows that he was a
buyer of 10 kilograms and intended to sell the other 10 kilograms
of cocaine. The district court, based on the evidence presented at
trial, clearly erred in concluding that Torres-Tamayo was anything
more than a mere buyer of the cocaine. Accordingly, Torres-
Tamayo's sentence must be vacated.
Based upon the foregoing, we affirm the convictions and
sentences of both Lozano-Hernandez and Vililla. We also affirm
Torres-Tamayo's conviction for attempted possession with the intent
to distribute cocaine, but vacate as clear error the enhancement of
his sentence under § 3B1.1(c), and remand to the district court for
resentencing.
AFFIRMED in part; VACATED in part; and REMANDED.
COX, Circuit Judge, concurring in part and dissenting in part:
I concur in the court's opinion with the exception of its
holding that the district court erred in enhancing Torres-Tomayo's
sentence based on his role in the offense. The district court
enhanced Torres-Tomayo's sentence two levels because it concluded
that Torres-Tomayo was "an organizer, leader, manager, or
supervisor." U.S.S.G. § 3B1.1(c) (Nov. 1993). Vacating the
sentence, the court concludes that "[t]here was absolutely no
evidence that he supervised or controlled anyone, or that he
exercised management responsibility over the property, assets, or
activities of the criminal organization." I disagree. The record
supports the sentence enhancement.
We review the district court's findings with respect to a
defendant's role in the offense for clear error, United States v.
Young, 39 F.3d 1561, 1568 (11th Cir.1994), and the government need
prove the defendant's role only by a preponderance of the evidence.
United States v. Yates, 990 F.2d 1179, 1182 (11th Cir.1993).
Adherence to the proper standard of review and burden of proof
requires us to affirm Torres-Tomayo's sentence. The evidence
reveals that Torres-Tomayo was to purchase one-half of the shipment
of cocaine, (R. 21 at 25-32), was the financier of the
transportation fee that had to be paid to obtain delivery of the
cocaine (id.), and supplied the driver of the truck used to take
delivery of the drugs, (R. 17 at 188-90). The district court did
not clearly err in concluding from this evidence that Torres-Tomayo
was more than a "mere buyer," as the court describes him on this
appeal. This evidence supports a finding that Torres-Tomayo was
involved in "the recruitment of accomplices, claimed right to a
larger share of the fruits of the crime," U.S.S.G. § 3B1.1,
comment. (n. 4), and "exercised management responsibility over the
property, assets, or activities of a criminal organization,"
U.S.S.G. § 3B1.1, comment. (n. 2).