Appeal by ten of twelve appellants from judgments of conviction for single conspiracy to import and distribute cocaine in violation of 21 U.S.C. §§ 846, 963, in the Eastern District of New York, Mishler, Chief Judge . Appellant Cambindo also appeals from a conviction for continuing criminal enterprise, in violation of 21 U.S.C. § 848. Various appellants appeal from substantive convictions for importation and possession of cocaine, in violation of 21 U.S.C. §§ 841, 960, and appellant Flores appeals from a conviction for possession of cocaine with intent to distribute. Appellants claimed the existence of multiple conspiracies and made various other claims. The court of appeals found the trial judge's failure to charge that the jury could find multiple conspiracies faulty. It nevertheless affirmed the convictions of appellants Cambindo, Moreno Ortiz, and Bermudez Prado, and reversed and remanded for new trial the convictions of appellants Gonzalez, Flores, Vivas, Williams, Rosalinda Losada, and Jesus Losada. However, the convictions of appellants Escobar, Velasco, and Mario Caicedo were reversed.
Before Oakes and Gurfein, Circuit Judges, and Pierce, District Judge.*fn*
This appeal is from convictions of ten defendants for conspiracy to commit narcotics offenses (Count I, 21 U.S.C. §§ 846, 963), from convictions of several for the commission of substantive narcotics offenses (Counts II-X, XII-XIII, 21 U.S.C. §§ 841, 960), and from a conviction of one defendant, Jose Esteban Cambindo Valencia (Cambindo),*fn1 for conducting a "continuing criminal enterprise" (Count XI, 21 U.S.C. § 848). Trial to a jury took place in the United States District Court for the Eastern District of New York, Jacob Mishler, Chief Judge. The court ruled as a matter of law that there was involved only a single conspiracy. Consequently it did not submit to the jury the question whether there were multiple conspiracies, but merely the question whether there was a conspiracy and whether each defendant was a member of it. Because we do not agree that the issue of single/multiple conspiracy could be determined as a matter of law in this case, and because the evidence permitted the finding of several conspiracies (and in the case of some defendants demanded such a finding), we must assume that multiple conspiracies were proved. In so doing, we must decide which of the appellants may have been prejudiced by the variance between the conspiracy charged and the conspiracies proved. We find that only one narrower conspiracy was sufficiently proved by the evidence to outweigh any possible prejudice from the spillover of proof as to other conspiracies. We therefore affirm the convictions only of those appellants who were clearly linked by the evidence with that conspiracy. We also reverse the convictions of others who might be linked with that conspiracy and remand their cases for a new trial. Finally, we reverse the convictions of those appellants whose connections with the conspiracy proved were so remote that they cannot under any circumstances be held to have participated in That conspiracy. On the substantive charges, we reverse the convictions of all but one defendant and remand for new trials. However, we affirm all the substantive convictions of appellant Cambindo, finding that any prejudice was, in his case, harmless.
I. Indictment and Convictions
The superseding indictment (78 CR 106(S)) charged twenty-seven defendants in one conspiracy and charged assorted defendants in twelve substantive counts, one of which accused defendant Cambindo of engaging in a continuing criminal enterprise (Count XI; 21 U.S.C. § 848). The conspiracy count (Count I) charged a conspiracy, occurring between approximately January, 1972, and October, 1976, violating 21 U.S.C. §§ 846 and 963, (1) to import and (2) to distribute and possess with intent to distribute substantial quantities of cocaine, as well as (3) to conceal the existence of the conspiracy. Four named coconspirators, Thomas Esposito, Lucho Plata, Louis Guillermo Moreno Serna (Moreno Serna) and Augustin Lemos, pleaded guilty (apparently to substantive counts) and do not appear. The case against another named conspirator (Juan Bautista Torres) was dismissed at the close of the Government's case. Four named coconspirators were "John Does," never arrested, and five more named were fugitives at the time of trial. One more (Zohie Perez) was convicted, but is a fugitive. The remaining twelve, all of whom appeal, were each convicted of the conspiracy count; these include Cambindo, Rafael Flores Valencia (Flores), Carmen Vivas (Vivas), Freddie Williams, Jesus Losada, and Rosalinda Losada, each of whom was also convicted of substantive counts,*fn2 and Federico Gonzalez (Gonzalez), Jose Manuel Escobar Orjuella (Escobar), Alfonso Velasco (Velasco), Mario Caicedo (Caicedo), Edgar Enrique Moreno Ortiz (Moreno Ortiz), and Julio Francisco Bermudez Prado (Bermudez Prado), none of whom was charged with a substantive count.
Each defendant named in a substantive count whose case went to the jury*fn3 was also convicted on each such count: Cambindo, named in Counts II, V, VI, X, and XI; Flores (Count IX); Vivas (Count X); Williams (Counts VII and VIII); Jesus Losada (Counts XII and XIII); and Rosalinda Losada (Counts XII and XIII). All except Vivas, Williams, and Rosalinda Losada are in custody serving their sentences, set out in the margin.*fn4
Thus, there was a verdict of guilty as to every defendant on every count in which he or she was charged.
II. The Government's Proof
The Government contended at trial that the alleged conspiracy involved persons who knew one another and in some cases had grown up together in Buenaventura, a Colombian port city. The Government presented evidence that the defendants utilized vessels of the Grancolombiana line (especially the Ciudad de Bogata and the Ciudad de Buenaventura) to import the cocaine to New York (although some of the transactions put in evidence relate to shipments to Miami, Baltimore, Los Angeles, and San Francisco), where the ships usually docked at Pier 3 below Brooklyn Heights or at the Bush Terminal in Brooklyn. These defendants, according to the Government, principally used the same general methods to remove the cocaine from the ships Viz., couriers carrying it on their bodies off the ship or seamen lowering the cocaine overboard to waiting "swimmers" who would enter the East River at the base of the Brooklyn Bridge (or other points), swim downstream to the vessel, get the shipment, and then swim further to an arranged point and waiting "pick-up man." They would exchange the illegal drugs among themselves or with others, principally at the Tunnel Bar, an establishment near the Brooklyn Bridge, although there were also transactions at Red Hook Park, the La Gran Casa store, a house in Queens, another house on Amity Street in the Cobble Hill section of Brooklyn, and elsewhere in greater New York City. The Tunnel Bar, owned by appellant Gonzalez and evidently the "on-the-drug-scene" successor to the Buenaventura Social Club on Hamilton Avenue in Brooklyn, exhibited sufficient prominence in the forty-eight or so transactions described during the trial to lead the Government to refer to the alleged conspiracy on occasion as the "Tunnel Bar Conspiracy." At other times, however, it has been referred to as the Buenaventura or the Grancolombiana Conspiracy.
To clarify the myriad of individual transactions that must be recounted in detail in order to analyze the contentions of the parties, a brief listing in the nature of a cast or principal characters may be helpful. The Suppliers/Senders from Colombia include one Mauro, appellant Flores, defendant Alfonso Villafana (Villafana), Silvio, Juan Cambindo Rodriguez, and Ricardo Cambindo Rodriguez. Seamen include a "John Doe" and defendants Lemos, Jose Argoti, and Figueroa. Traffickers/Dealers include appellants Gonzalez, Escobar, Velasco, Mario Caicedo, Bermudez Prado, Cambindo, Moreno Ortiz, Rosalinda Losada, Jesus Losada, and defendant Ulpiano Vega. The Body Carriers include two longshoremen, defendant German Largacha and appellant Freddie Williams, as well as Jaime Ortiz, "Pepo" (Carlos Riascos), "Kilometer," and Alvaro Caicedo. The Swimmers include Government witness Pacifico Caicedo Rodriguez, Daniel Riascos, Conrado Ortiz, and defendant "El Wallo." Pick-up Men or Couriers include Government witness Moreno Serna, defendant "El Bolla," and Gillian Vargas. Government witness Emilio Rivas is a Purchaser, and Local Dealers include defendants Zohie Perez and "Lucho Plata," as well as appellant Vivas. It must be understood, however, that at various times, different characters appear in different roles: the Government witness Pacifico Caicedo Rodriguez, for example, swims, traffics, picks up, and deals; there is evidence that appellant Flores in addition to supplying also deals.
We have found no way to classify effectively the forty-eight or so specific transactions adduced at trial. The Government kindly furnished us postargument with flow charts purporting to show connections among the various participants, but we did not find them particularly helpful. We therefore recount, chronologically and in depth, the transactions about which the Government offered proof, taking the proof in the light most favorable to the Government.
Rivas and Gonzalez; Rivas and Escobar (and Velasco).
Emilio Rivas, a former resident of Buenaventura, aware that a number of the people at the Buenaventura Social Club on Hamilton Avenue in Brooklyn did business in cocaine, testified that, in 1971, prior to the conspiracy charged, he asked several of them if he too could get in the business. About the time appellant Gonzalez opened the Tunnel Bar, Rivas asked Gonzalez to sell him small amounts of cocaine on consignment and Gonzalez did so. Rivas in turn would sell this cocaine in the Tunnel Bar and elsewhere. In 1972, as Rivas's clientele grew, Gonzalez began to provide eighth kilograms to him at $2,000 per unit. Rivas would order and receive the cocaine from Gonzalez at the Tunnel Bar. Rivas at this time also found a second supplier at the Tunnel Bar, appellant Escobar, who also began to sell Rivas eighth kilograms of cocaine on consignment at $2,000 per unit; the transactions were often negotiated, and delivery of the cocaine made, in the Tunnel Bar. Deliveries were usually made in the toilet in the back of the 15' X 30' bar. As time went on, in 1972, Rivas began to receive from Escobar half kilograms of cocaine for approximately $9,000 each. Often, at Escobar's direction, Rivas would pay the appellant Velasco.
Pacifico Caicedo Rodriguez; here of Mario Caicedo, Escobar and Velasco again, and a theft.
In March of 1972, Pacifico Caicedo Rodriguez (Caicedo Rodriguez), another resident of Buenaventura, who in Colombia had been given the telephone number of the Tunnel Bar in Brooklyn, called it when he arrived. He soon talked to appellants Gonzalez, Mario Caicedo, Velasco, Escobar, and others in the bar about the cocaine trade. One day his opportunity came. Mario Caicedo told him that a ship was scheduled to leave at seven o'clock that evening and that there were still three pounds of cocaine on board. Mario Caicedo drove him to an apartment that appellants Escobar and Velasco maintained, but did not inhabit, across the street from the Tunnel Bar. Caicedo Rodriguez learned that Escobar and Velasco were the owners of the cocaine and that Mario Caicedo was an eager purchaser. Escobar and Velasco explained that the originally assigned "carrier" (who was to have walked off the ship with the cocaine on his body) had been unable to conceal the full load and thus left three pounds of cocaine behind.
Velasco took Caicedo Rodriguez to the ship, where a seaman handed a package of cocaine to Velasco, who handed it to Caicedo Rodriguez. Caicedo Rodriguez then walked the package off the ship in his pants. The package was then turned over to Escobar and Velasco in front of the Tunnel Bar. The next day at Escobar's and Velasco's apartment, Caicedo Rodriguez was paid $1,500. Also present was appellant Mario Caicedo.
At some time thereafter Caicedo Rodriguez, who was taking marijuana off a Grancolombiana ship, was informed by Escobar that, on the same ship, he had thirty kilograms of cocaine. Caicedo Rodriguez offered to remove this cocaine, but Escobar Orjuella told him that Pepo was going to do that. Later, Pepo brought the cocaine to Caicedo Rodriguez's apartment and asked him to guard it for a week. Why Caicedo Rodriguez was entrusted with this much cocaine does not appear. According to his testimony, however, at the end of the week Escobar arrived and took the thirty kilograms of cocaine.
Caicedo Rodriguez later met with the appellant Gonzalez, Pepo, Jaime Ortiz, and "Kilometer." Gonzalez told them that there was a load of approximately three kilograms of cocaine on a Grancolombiana ship. Gonzalez agreed to hire only Pepo and Kilometer to remove the cocaine. Caicedo Rodriguez convinced Pepo and Kilometer to steal the cocaine and to tell Gonzalez that the cocaine had been lost. Caicedo Rodriguez thereafter sold the stolen cocaine to Mario Caicedo, the earlier purchaser from Escobar and Velasco, for $16,000 a kilogram. Mario Caicedo, who was originally to receive the cocaine from Federico Gonzalez, now agreed not to tell Gonzalez that Caicedo Rodriguez had sold him the cocaine.*fn5
Augustin Lemos*fn6 was a resident of Buenaventura who for some years served aboard the Grancolombiana ships as a steward. At the beginning of 1973, a man in Buenaventura, Libardo Cano, asked Lemos to carry 1.5 kilograms of cocaine to New York which had been smuggled on board ship. Cano told Lemos that appellant Mario Caicedo was to receive the cocaine. Lemos concealed the cocaine on the ship and, once in New York, met with Caicedo at a Brooklyn store frequented by seamen, La Gran Casa on Atlantic Avenue, where Mario Caicedo introduced him to a man named Alomia. Alomia agreed to board the ship in the early morning hours the next day to body-carry the cocaine off the ship. After the delivery was complete, Lemos met again with Mario Caicedo on Atlantic Avenue and Caicedo took him to an apartment and paid him $1,500.
Emilio Rivas and Cambindo.
Also in the spring of 1973, Government witness Emilio Rivas, who had done business with Gonzalez and Escobar, was introduced by a Julio Mehia to appellant Cambindo, who was apparently living at the house of Zaira Mehia. Rivas negotiated there with Cambindo to buy a half kilogram. Present also was appellant Moreno Ortiz. When Zaira Mehia vouched for Rivas's trustworthiness, Cambindo sent Moreno Ortiz to obtain a package of cocaine from the next room which he gave to Rivas. Rivas paid Cambindo $3,000 as a down payment for the drugs. Several days later Rivas paid Cambindo and Moreno Ortiz an additional $4,000. On another occasion at Zaira Mehia's house, Rivas paid $4,000 or $5,000 as a down payment on another half kilogram. Rivas gave the money to Moreno Ortiz, who in turn handed it to Cambindo, and Rivas was given another half kilogram of cocaine. Shortly thereafter, Cambindo alone sold Rivas an eighth kilogram of cocaine, this time at Rivas's home.
While it is out of chronological order, the testimony was that Rivas regularly received cocaine from Cambindo through 1974 except for one period during that year when he did not. Some of this cocaine was resold to Jorge Vivas, husband of appellant Carmen Vivas, and some to appellant Flores. On one occasion Flores met Rivas in the Tunnel Bar and negotiated a deal for an eighth kilogram for $4,000 on consignment, but Flores never paid the money.
During this same time, Cambindo became a partner with Rivas and another in a meat market in uptown Manhattan.
In early 1973, Juan Cambindo, the brother of appellant Jose Cambindo, went to steward Lemos's home in Buenaventura. Cambindo asked Lemos to deliver approximately five kilograms of cocaine to his brother in New York, and Lemos agreed. In New York, the ship docked, as usual, at Pier 3. Lemos met with Jose Cambindo on Atlantic Avenue at La Gran Casa (where he had met Mario Caicedo). Cambindo told Lemos that a man named Luango would swim the cocaine away from the ship.
At a prearranged time in the early morning the next day, Lemos threw the cocaine wrapped in plastic down to the swimmer. But the next day Cambindo told Lemos that Luango had disappeared, that he had not received the cocaine and that Lemos would accordingly not be paid.
Largacha and appellant Williams, the longshoremen.
Also in early 1973, Caicedo Rodriguez (the Government witness and erstwhile swimmer/dealer) traveled home to Colombia and there contracted with a man named Mauro to bring 800 grams of cocaine to New York on the Ciudad de Bogota. When the ship arrived, he contacted a longshoreman, German Largache, who agreed to smuggle the cocaine through customs at Pier 3. At the agreed time, appellant Freddie Williams appeared and removed from his socks packets of cocaine, which he gave to Caicedo Rodriguez. This cocaine was sold on consignment to Lucho Plata. One day later, Plata called Caicedo Rodriguez to say that there was money from the cocaine sales at Plata's house in Queens. When Caicedo Rodriguez arrived, Plata gave him approximately $5,000 and told him to wait because a customer for the cocaine was about to arrive. Fugitive defendant Zohie Perez walked in, purchased an "eighth" of cocaine from Plata in Caicedo Rodriguez's presence, and gave Plata $3,500, which Plata gave in turn to Caicedo Rodriguez.
Rafael Flores and Caicedo Rodriguez.
Later in 1973, Caicedo Rodriguez made a second trip to Buenaventura where he met with appellant Flores. Flores took Caicedo Rodriguez to the nearby town of Cali and introduced him to a source of cocaine. Caicedo Rodriguez purchased a pound of the substance, then hired a seaman on a Grancolombiana ship to transport it to New York and take it to Pepo and Jaime Ortiz. Caicedo Rodriguez later received $5,000 as his share of the transaction.
In August of 1973, Caicedo Rodriguez returned to the United States from Colombia and thereafter entered the marijuana business with defendant Lucho Plata. The Government does not suggest that this was part of the "single conspiracy."
Moreno Serna and Bermudez Prado.
In 1973, Government witness*fn7 Moreno Serna, as a former resident of Buenaventura, began associating with other Buenaventurans in New York and became aware that some of them were making money in the drug trade. He asked Caicedo Rodriguez, Pepo, and Batey, another swimmer, and others to get him into the business and was told that Atlantic Avenue was the hiring ground when a Grancolombiana ship was at Pier 3. When he learned that a Grancolombiana ship was in port, he drove down to Atlantic Avenue and ran into Pepo, who drove him to the piers. In the vicinity of Pier 3, they pulled into a cul-de-sac and Pepo called out. Batey, a man named Moises, and two or three others leaped over the customs fence with plastic bags and got into the car. Moreno Serna was then directed to drive to Pepo's home. There Pepo told Moreno Serna to return the next day to discuss payment.
The next day Pepo said that three of the kilograms of cocaine removed from the ship belonged to appellant Bermudez Prado, one to a woman, Efigenia, three to a man, Tunebares, and a final kilogram to him. Pepo explained that Moreno Serna should look to the others for payment since he (Pepo) had given Moreno Serna an entree into the cocaine business. Thereafter, Moreno Serna spoke with Bermudez Prado, who told him that, because his customers had failed to pay him, he was unable to pay. Tunebares also refused to pay Moreno Serna, but Efigenia gave him $900.
Three or four months later, Moreno Serna was approached by Batey and asked if he wished to wait for him with a car when Batey picked up a kilogram from a Grancolombiana ship on Pier 3. Moreno Serna agreed and was paid $900 by Efigenia for his assistance in picking up the kilogram of cocaine. Despite these transactions, Efigenia and Tunebares are nowhere else mentioned in the evidence and presumably are not a part of the "single conspiracy" that the Government claims.
Morena Serna and Cambindo; the police on the trail.
In November of 1973, Cambindo contacted Moreno Serna and told him that a Carlos Palomino, not a named conspirator, was expecting two kilos of cocaine at the pier and that he (Cambindo) was going to receive the cocaine for Palomino. Cambindo took Moreno Serna to Palomino, who agreed to pay him $1,000 per kilogram for being the pick-up man. When the Grancolombiana ship arrived at Pier 3, Moreno Serna, Cambindo, Palomino, and Moreno Ortiz met on the Brooklyn Heights promenade overlooking Pier 3 to discuss procedures. At 3:00 a. m., Cambindo and Moreno Ortiz walked toward the pier, while Moreno Serna drove Palomino to the cul-de-sac in the pier area. Cambindo and Moreno Ortiz walked up to the car, gave the cocaine to Palomino, and then walked away. As Moreno Serna and Palomino began to drive away, they realized they were being followed by the police. Palomino threw the package from the car before the pursuing police car pulled them over. No arrests were made. Moreno Serna drove Palomino back to the area where he had thrown the cocaine but it was nowhere to be found.
The next day Palomino, Ortiz, and two others accosted Moreno Serna and ordered him into a car. Palomino accused him of having set up a fake police surveillance to steal the package. Appellant Moreno Ortiz struck Moreno Serna on the head with a gun, but Cambindo arrived, told them to stop and said Moreno Serna was not responsible. Palomino told Moreno Serna that he must pay for the lost cocaine, but Moreno Serna refused. Later Moreno Serna's car was vandalized and Cambindo told him that Palomino had done this. Cambindo confided to Morena Serna that his lady friend Zaira Mahia had been working with Government agents and that she had been the one who had tipped off the agents about the two kilograms of cocaine.
In early December, 1973, Cambindo and Moreno Serna had several conversations about raising money to purchase cocaine. Moreno Serna told Cambindo that he had saved $3,000. Cambindo stated that, with the $500 he could add, they could purchase a half kilo in Colombia. On December 9, 1973, Moreno Serna traveled to Colombia, was met by Cambindo's brothers, Juan and Ricardo, and gave the money to them. Thereafter, in February of 1974, Cambindo told Moreno Serna that a Grancolombiana ship had arrived with the half kilogram of cocaine contracted for and that the cocaine had been unloaded, but, because it was wet, had diminished in value. A week later, Cambindo told Moreno Serna that he had sold the wet cocaine for $5,000. Moreno Serna asked for $1,200 and told Cambindo to reinvest the rest.
Cambindo sent the money to Colombia and, in March or April of 1974, another half kilogram arrived by Grancolombiana ship at Pier 3. Again, however, Cambindo said profits would be poor because the cocaine was of poor quality. This cocaine was sold for $8,000, however, and Moreno Serna received half. Cambindo advised him to hold onto the money for further investment. A month later, Cambindo told Moreno Serna that he had purchased a gypsy cab as a "front," in case he had to show he was working. Moreno Serna asked Cambindo to let him drive the gypsy cab so that he could make some money and Cambindo agreed.
The opium shipment (a similar act); Caicedo Rodriguez, Williams and Bermudez Prado.
In early 1974, a shipment of opium arrived from Colombia on board the Ciudad de Cucata. Why this new product line was entered into does not appear, but in any event the Government's evidence was that its witness Caicedo Rodriguez met on Atlantic Avenue with the seaman who brought the opium. German Largacha, the longshoreman who had previously smuggled cocaine, arranged to have appellant Freddie Williams body-carry the opium from the ship. Thereafter, Bermudez Prado drove Caicedo Rodriguez to the Bronx and introduced him to a customer for the opium, but when he took only some of it, Caicedo Rodriguez gave the rest to appellant Gonzalez to sell on consignment.
Escobar and the undercover police officer in the Tunnel Bar.
On Wednesday, February 13, 1974, Ralph Delgado, a Spanish-speaking police officer of the New York City Police Department assigned to make an undercover purchase in the Tunnel Bar, arrived late in the evening with an informant. Delgado was introduced to appellant Escobar, and thereafter negotiated a purchase of cocaine. Escobar led Delgado to the ladies' toilet and invited him to sample the stuff. The officer asked to make a purchase. Escobar led Delgado back to the bar and then started to leave. As he did so, he spoke to two men who assumed positions as "spotters" at the Tunnel Bar's window. Moments later, Escobar came back and told the informant that he would take $550 for an ounce of cocaine. Delgado bargained for $500. Escobar walked up to the officer, handed him an ounce of cocaine in the presence of the others in the bar, and told him to check it in the toilet. Delgado went to the men's toilet, but observed three men hiding and came back. Escobar directed him to the ladies' toilet. When Delgado emerged from the toilet, he handed Escobar $500, spoke briefly with him, and told him that he would be back soon.
Here of appellant Rosalinda Losada.
Also in early 1974, appellant Rosalinda Losada, then working for a City agency, became friendly with a fellow worker, one John Canzoneri.*fn8 After telling Canzoneri that she had access to quantities of cocaine, Losada asked Canzoneri if he would be able to sell any. He agreed to attempt to do so and visited Rosalinda Losada at her Amity Street house in Cobble Hill. The eighth kilo was already on the living room table when Canzoneri arrived. Rosalinda Losada and Jesus Losada offered to give him the eighth to sell on consignment for $3,000. Canzoneri later sold it and returned to the Losadas' house, where they counted the proceeds together.
Thereafter, Rosalinda explained the organization of this cocaine trade to Canzoneri. According to his testimony, she stated that she obtained large amounts of cocaine from merchant seamen who would bring it to New York and that swimmers would then smuggle it ashore. Rosalinda Losada noted that, on occasion, the shipping line employees would carry the cocaine through customs. Canzoneri was also instructed by Jesus Losada, with Rosalinda Losada acting as interpreter, that, since Canzoneri lived in Brooklyn Heights near the promenade, he was to watch for the arrival of the Ciudad de Buenaventura, the ship on which the cocaine was to arrive. One evening, Jesus Losada asked Canzoneri to drive him to the Tunnel Bar, which Rosalinda explained was the meeting place for seamen and cocaine dealers. She also said that she and Jesus used the Tunnel Bar to meet other people in the cocaine business.
Caicedo Rodriguez and Batey; Cambindo and Villafana.
In late spring or early summer of 1974, Villafana asked Caicedo Rodriquez on Atlantic Avenue in Brooklyn to swim a load of cocaine off the Ciudad de Buenaventura, and he agreed to do so even after Villafana explained that an unusual amount of surveillance on the piers had made it impossible to walk the cocaine off. The same day, Cambindo, aware that Caicedo Rodriguez was to remove the shipment for Villafana, asked him to smuggle some cocaine from the ship for him also. Caicedo Rodriguez then met with Jose Argoti, the seaman who brought the cocaine, to make arrangements. That night Caicedo Rodriguez and Batey entered the water two blocks away from the ship. Caicedo Rodriguez gave the prearranged signal with a white handkerchief, and Argoti threw the cocaine down to them. The swimmers then emerged from the water at a parking lot near the pier area. Waiting in an automobile were Villafana and appellant Bermudez Prado. Caicedo Rodriguez and Batey were paid approximately $9,000 for swimming the four and a half kilograms of cocaine.
German Largacha and Freddie Williams, the longshoremen, deal.
Also during the spring of 1974, German Largacha approached Caicedo Rodriguez and told him that another seaman, Estupinan, had brought in a pound of cocaine on the Ciudad de Santa Marta and offered it for sale. Largacha explained that he had purchased it and that appellant Freddie Williams would carry it off the boat, but that they had no place to store it. Caicedo Rodriguez agreed to hide the stuff. Thereafter Caicedo Rodriguez waited in a car one block from the piers. Largacha and Williams pulled up in a car and gave the cocaine to Caicedo Rodriguez, who took it home and kept it for the other two.
In the summer of 1974, Largacha told Caicedo Rodriguez that another seaman had a quarter kilogram of cocaine for sale and that if Caicedo Rodriguez could sell it they could divide the profit three ways with the third share going to Williams for smuggling out the cocaine. Caicedo Rodriguez sold the cocaine for approximately $5,000 but told Largacha that he had made only $4,000. Largacha said he had paid the seaman $1,500 or $1,800. The remaining profit was divided between Caicedo Rodriguez, Largacha, and Williams.
Shortly thereafter Villafana approached Caicedo Rodriguez as to a shipment on board the Cuidad de Bogota docked in Bush Terminal. When Villafana asked if Caicedo Rodriguez could arrange to have the cocaine smuggled out, the latter contacted Largacha who said he would use Freddie Williams. Caicedo Rodriguez then took Williams to meet with the seaman Arturo Figueroa, and they agreed that Williams would go on the ship to receive the cocaine in the seaman's cabin. Williams then smuggled out four or five kilograms of cocaine to Caicedo Rodriguez's car. Caicedo Rodriguez paid Largacha $1,500 for each kilogram, but Largacha told him to tell Williams that he was paying only $1,000 per kilo. When subsequently questioned by Williams, Caicedo Rodriguez gave him the lower figure.
Caicedo Rodriguez, Daniel Riascos, and Cambindo.
In June of 1974 Daniel Riascos told Caicedo Rodriguez that he had been hired by Cambindo to swim a shipment from the Ciudad de Bogota; he asked Caicedo Rodriguez to swim with him. Riascos took him to meet with Cambindo and thereafter the three met with the two seamen who had brought the cocaine. Cambindo indicated that Government witness Moreno Serna would be the pick-up man near the pier.
That night, Riascos and Caicedo Rodriguez swam to the side of the ship and pulled on a nylon cord hanging over the side. One of the seamen threw the cocaine down. They swam under the piers back to Pier 5, where Moreno Serna was waiting in a gypsy cab. The next day, June 19, 1974, Riascos and Caicedo Rodriguez went to Cambindo's residence and Caicedo Rodriguez was given cash and an eighth kilogram of cocaine in payment for his services.
Caicedo, Riascos, Cambindo, and Villafana; another theft.
Thereafter Villafana asked Caicedo Rodriguez to "swim" a shipment of cocaine at Bush Terminal from the Ciudad de Buenaventura. Villafana had contacted the seaman Lemos in Buenaventura and arranged for him to bring the shipment from Colombia. He introduced Caicedo Rodriguez to Lemos and then told Caicedo Rodriguez that Cambindo also had a shipment of cocaine on the ship, being brought by seaman Argoti, and would require assistance. All agreed that Caicedo Rodriguez would make the "swim" that evening with the assistance of Riascos. That night Riascos and Caicedo Rodriguez swam to the ship and Lemos and Argoti lowered the cocaine wrapped in plastic bags to them. Once on shore, Caicedo Rodriguez told Riascos to look for the pick-up man. While Riascos was gone, Caicedo Rodriguez quickly removed about a pound of cocaine for himself. The rest was then passed to Moreno Serna who, along with one Hanry Carvajal, was there in the gypsy cab to make the pick-up. Later Riascos gave Caicedo Rodriguez his share of the money that Riascos stated had been given to him by Cambindo.
Moreno Serna and Carvajal brought the cocaine to Atlantic Avenue. Cambindo took his three kilos and Villafana therefore suffered the loss caused by Caicedo Rodriguez's theft. Later Cambindo paid $1,500 to Moreno Serna, who objected that he was to receive $3,000. Cambindo replied that the other $1,500 was going to Carvajal, due to ...