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United States v. Losada

decided: March 12, 1982.

UNITED STATES OF AMERICA, APPELLEE,
v.
JESUS LOSADA AND ROSALINDA LOSADA, DEFENDANTS-APPELLANTS.



Appeals from judgments entered upon jury verdicts in the Eastern District of New York convicting both appellants of violations of the federal narcotics laws and one appellant of engaging in a continuing criminal enterprise. Affirmed.

Before Timbers and Kearse, Circuit Judges, and Metzner, District judge.*fn*

Author: Timbers

On these appeals from judgments entered upon jury verdicts in the Eastern District of New York, John F. Dooling, District Judge, and Edward R. Neaher, District Judge, convicting both appellants of violations of the federal narcotics laws and convicting one appellant of engaging in a continuing criminal enterprise, we find the following to be the principal claims of error raised on appeal:

(1) Whether dismissal of the conspiracy count required dismissal of the substantive counts against both appellants and dismissal of the continuing criminal enterprise count against one appellant.

We hold that it did not.

(2) Whether the district court abused its discretion in not granting a severance.

We hold that it did not.

(3) Whether there was error in admitting the testimony of a witness from an earlier trial in which appellants were defendants.

We hold that there was not.

(4) Whether one of the appellants was properly convicted of engaging in a continuing criminal enterprise.

We hold that she was.

Other subordinate claims of error are raised, as noted below. See note 5, infra.

We find no merit in any of the claims of error raised. We affirm.

I.

These appeals are sequels to earlier appeals decided by this Court in United States v. Cambindo Valencia, 609 F.2d 603 (2 Cir. 1979), cert. denied, 446 U.S. 940 (1980), with which we assume familiarity. To the extent here relevant, the Court in Cambindo Valencia reversed the convictions of the two named appellants on the instant appeal and remanded their cases for retrial.

After retrial before Judge Dooling, the jury on August 20, 1980 found both appellants-Jesus Losada and Rosalinda Losada-guilty of conspiracy to import, distribute, and possess cocaine with intent to distribute it from 1972 to 1976 in violation of 21 U.S.C. §§ 846 and 963 (1976) (Count I); of importing cocaine in violation of 21 U.S.C. § 960 (1976) (Count II); and of possessing cocaine with intent to distribute it in violation of 21 U.S.C. § 841 (1976) (Count III). In addition, the jury convicted Rosalinda of conspiring to import, distribute, and possess cocaine with intent to distribute it in 1977 in violation of 21 U.S.C. §§ 846 and 963 (1976) (Count IV); and of engaging in a continuing criminal enterprise in violation of 21 U.S.C. § 848 (1976) (Count V).

Prior to retrial, Jesus had moved to dismiss the conspiracy count (Count I) on the ground of double jeopardy. Judge Dooling deferred ruling on this motion until after trial, at which time he granted it. Jesus was sentenced by Judge Dooling to eight years imprisonment, to be followed by five years of special parole, on Counts II and III, the sentences on these counts to run concurrently. Jesus presently is on bail pending appeal.

After Judge Dooling died, Judge Neaher granted Rosalinda's motion to dismiss the conspiracy count (Count I) because of the government's failure to honor a plea agreement. He sentenced her to ten years imprisonment on Count V and to three years imprisonment on Counts II, III and IV. He ordered her sentences on Counts II, III and IV to run concurrently with each other and with her sentence on Count V. He also sentenced her to concurrent five year terms of special parole on Counts II and III, following her release from prison. She is now is prison serving her sentence.

II.

There was evidence from which the jury could have found as follows.

Jesus and Rosalinda were engaged in a large drug conspiracy. Witnesses described several drug transactions in which Colombian cocaine illicitly imported into the United States was delivered to Rosalinda in her apartment. An important witness, John Canzoneri, testified that he purchased some cocaine from her in 1974, paying in cash, and saw her give the money to Jesus. Canzoneri testified that she explained to him the details of the drug network.

Since one Augustine Lemos was living in Colombia and was unavailable at the time of trial, the government introduced his testimony from the prior 1978 trial where the Losadas were defendants. Lemos testified that he and another man arranged to import cocaine for Jesus and had had meetings with him. Freddie Williams, who was supposed to take the cocaine from the ship to Jesus, was arrested and five kilograms of cocaine were seized from him. Canzoneri testified that Rosalinda told him that the seized cocaine belonged to her and Jesus. He further testified that she said she would arrange for bail for Williams.

Canzoneri also testified that in late August 1974 Rosalinda offered to sell some cocaine on consignment to him. He was arrested while attempting to sell the cocaine (which turned out to be lidocaine) to an undercover agent.

By late 1975, Rosalinda and Jesus were living apart. Rosalinda continued her dealings in cocaine. Several witnesses testified that they saw cocaine in Rosalinda's safe deposit box. Others testified that they paid cash to her for cocaine.

In September 1977, Rosalinda and the man whom she later was to marry traveled to Colombia to arrange for a shipment of cocaine. Eventually she and others were arrested. A search produced letters in code which, when deciphered, indicated that cocaine would be delivered to Rosalinda and others from a ...


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