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United States v. Serna

decided: August 25, 1986.

UNITED STATES OF AMERICA, APPELLEE,
v.
JORGE SERNA AND STEVEN JOHN CINNANTE, APPELLANTS



Appeals from judgment of conviction entered by the United States District Court for the Eastern District of New York, Thomas C. Platt, Jr., Judge, for conspiracy and substantive offenses related to importation, possession, and distribution of marijuana, and conspiracy to possess and distribute cocaine. Claims of trial court error in excluding hearsay statements and expert testimony, admitting a drug ledger, and denying a new trial based on newly discovered evidence rejected; evidence sufficient. Judgment affirmed.

Author: Oakes

Before: FEINBERG, Chief Judge, LUMBARD, and OAKES, Circuit Judges.

OAKES, Circuit Judge:

Appellants Jorge Serna and Steven John Cinnante appeal their convictions following a jury trial in the United States District Court for the Eastern District of New York, Thomas C. Platt, Jr., Judge, in connection with the importation into the United States from Colombia of 4,920 pounds of marijuana in March of 1984 and the distribution of cocaine. Count One of the indictment charged Serna and Cinnante with conspiring to import, possess, and distribute marijuana and to possess and distribute cocaine in violation of 21 U.S.C. § 846 (1982); Count Two charged Serna with directing the importation of the marijuana in violation of 21 U.S.C. §§ 952(a), 960(a)(1) (1982) and 18 U.S.C. § 2 (1982); Count Three charged both Serna and Cinnante with the crime of possession of marijuana with the intent to distribute it in violation of 21 U.S.C. § 841(a)(1) (1982) and 18 U.S.C. § 2. Each defendant was found guilty on all counts charged. Judge Platt sentenced Serna to concurrent twelve-year terms of imprisonment on Counts One and Two and a concurrent five-year term on Count Three, to be followed by concurrent lifetime special parole terms, as well as a cumulative fine of $65,000; Cinnante was sentenced to a twelve-year prison term on Count One and a concurrent ten-year prison term on Count Three, to be followed by a concurrent lifetime special parole term, and a cumulative fine of $80,000. Appellants challenge four evidentiary rulings of the trial court. Cinnante also claims that the evidence was insufficient to support his conviction and that the trial court should have granted his motion for a new trial on the basis of newly discovered evidence. We affirm.

BACKGROUND

On March 13, 1984, United States Customs inspectors at the Brooklyn seaport discovered sixty-eight bales of marijuana weighing about two and one-half tons secreted inside a false compartment of a shipping container loaded with furniture that arrived aboard a vessel from Colombia. According to the ship's manifest, the furniture was destined for a Marco Castellon at a Corona, Queens, address. Customs and Drug Enforcement Administration ("DEA") officials removed the marijuana from the container, except for a small quantity deliberately left inside the false compartment. The furniture was placed back into the container, which was left on the Brooklyn waterfront to be claimed in the normal course by a customs broker. On March 29, Atlantic & Pacific Transport, Inc. ("A&P"), a brokerage firm. effected customs clearance for the container and transported it by truck to its lot in Queens. A&P personnel advised DEA agents that someone would arrive on April 2, 1984, to transport the container.

On the morning of April 2, Kenneth Neal Chupurdy drove a tractor to the A&P lot; shortly thereafter, Marco Castellon arrived at the A&P offices. After Castellon completed payment, Chupurdy hooked up the container to his tractor and, followed by surveillance agents, drove to a truck stop in South Kearney, New Jersey. Castellon took a taxi from A&P to LaGuardia Airport and was arrested as he was about to board a flight to Florida. Agents stopped Chupurdy after he was observed driving away from the truck stop in his tractor without the container and then arrested him as a result of information Castellon provided to the DEA following his arrest. Thereafter DEA agents, pursuant to a search warrant, obtained a black bag belonging to Chupurdy from a New Jersey motel where he had been registered at the time of his arrest. Inside the bag was a telephone address book with various names and numbers, including the name "Ciannante [sic]" without any first name, telephone number, or address.

Castellon agreed to cooperate immediately following his arrest. He did so and eventually testified at trial. Castellon advised the DEA agents that the marijuana importation scheme had been conceived and directed by Jorge Serna and by a man named "Steven," whose last name Castellon did not know. Castellon described Steven as about thirty-five to forty years old, between five feet ten inches and six feet two inches tall, about 200 pounds, with dirtyish blond hair, a moustache, blue eyes, and "very nice teeth." He stated that Serna had recruited him to act as consignee for the container for $50,000, and provided details of the importation scheme.

During the previous few months Castellon had purchased some five kilograms of cocaine from Serna on a consignment basis for resale, for which he owed Serna about $20,000. On several occasions in late 1983 and early 1984, Castellon, when delivering sums of money to Serna for cocaine, observed Serna making notations in a black notebook or ledger comprised of entries for various customers. Customers were designated by a code name or first name, and a detailed balance sheet for each customer recorded deliveries of kilograms of cocaine, payments made and balances due; a separate section listed accounts in Miami and Bahamian banks.

With respect to the marijuana container, Serna gave Castellon the bills of lading and other necessary documents and instructed him to travel to New York and hire a customs broker to handle the customers clearance. Castellon made three trips to New York in March 1984, retained the A&P brokerage firm, and paid for its services with money that Serna provided. A&P reported delays and during one of its trips Castellon telephoned Serna, who advised him that an "American gentleman by the name Steven" would call him at his hotel to ask about the delays. A few minutes later, Castellon received a telephone call from a man who identified himself as Steven and asked Castellon questions about the lack of progress in clearing the container.

On March 29, 1984, Serna and Castellon met in a Miami restaurant to discuss the delays, Serna remarked to Castellon that his "American friends will not believe him any more." He also confided that "this gentleman Steven . . . has the customer for this marijuana" and remarked that they would now refer to Steven as "John." Later the same day, A&P cleared the container and told Castellon he had to collect it from the lot as soon as possible. After learning of this news, Serna told Castellon to go to a House of Pancakes restaurant in Miami the following morning to meet Steven and Steven's truckdriver. At the restaurant Serna introduced Cinnante to Castellon only as "Steven"; Chupurdy was identified simply as the truckdriver. Cinnante sat down next to Serna and across from Castellon and Chupurdy, about two or three feet from Castellon. Because of language difficulties Castellon, who spoke both English and Spanish, acted as interpreter. Castellon reported to "Steven" that A&P wanted the container moved from its lot "as soon as possible" because of a recent snowstorm. Discussing transportation, Cinnante told Serna that, before delivering the marijuana to the customer in Philadelphia, he planned to leave the container overnight in a rest area in New Jersey to "see if the feds are watching." He explained that on a prior occasion the container was found to be "full of bugs," i.e., electronic devices. Serna told Cinnante that it was "good" to have snow covering the container because "that way the marijuana will not smell." Castellon, hesitant to use the word "marijuana" in a public place, incongruously used the word "pot" to convey this message in English. Cinnante remarked to Serna that "you will not believe how fast you're going to get your money." Serna replied that "money is the last thing [I'm] worried about." He stressed that he wanted Steven to be in Philadelphia when the deal was consummated to avoid dispute about the quantity and quality of the merchandise.

At this stage in the House of Pancakes conversation, Serna and Cinnante began to speak about other transactions. Serna asked, "How about a little money[?]" and Cinnante replied that he could probably get $50,000 or $75,000. Serna and Cinnante also discussed Serna's recent purchase of a DC-3 airplane, which was ready for a "test flight down there." Serna told Cinnante that he "must not forget that next week they have [another] container coming into San Francisco." The entire conversation lasted about thirty to thirty-five minutes.

After the meeting, Castellon asked Serna whether he was sure that "Steven" and the truckdriver were not "policemen." Serna assured Castellon that "Steven," who resided in the Boca Raton area, was a longstanding business associate in cocaine trafficking who owed Serna $800,000 for cocaine already delivered and was asking for more cocaine.

Castellon also cooperated after his arrest by telephoning Serna while DEA agents tape-recorded the conversation. In all, seven such telephone conversations in Spanish were recorded. Using a cover story provided by the DEA agents, Castellon told Serna that he was still in New York because he had missed the flight as a result of a weapons check by airport police. Castellon asked Serna whether he had spoken to "Steven." Serna responded, "No, I'm waiting for him to call me," and suggested that the airport stop "could be a coincidence." The following day Serna informed Castellon that he learned from "John" that the "chauffeur was in jail" and added that it was "strange" for Castellon that if he was caught he should claim lack of knowledge about the marijuana and assert that a fictitious Pedro Gonzalez had hired him to act as consignee. ...


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