United States v. Lozano-Hernandez

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).