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United States v. Carmona

decided: April 19, 1989.

UNITED STATES OF AMERICA, APPELLEE,
v.
FERNANDO CARMONA, JOSE OMAR SANCHEZ, CARLOS ESCOBAR, FAOUD HASSAN, ANGELICA CARVAJAL, LUZ MARINA CARVAJAL, SOPHIE MEJIA CARVAJAL, LUIS GARCIA, JESUS ZAMBRANO, VICKY QUINJANO, GONZALO GAVIRIA, ROBERT PIETRI, JOSE SANTA CRUZ-LONDONO, DEFENDANTS, GONZALO GAVIRIA, A/K/A "PALESTINO", DEFENDANT-APPELLANT



Appellant Gonzalo Gaviria appeals from a May 22, 1988 judgment of conviction entered in the United States District Court for the Eastern District of New York (McLaughlin, J.) that convicted him of conspiracy to import and distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846, and sentenced him to a 12-year term of imprisonment and a $25,000 fine. Affirmed.

Author: Cardamone

Before: KEARSE, CARDAMONE and WINTER, Circuit Judges.

CARDAMONE, Circuit Judge:

Gonzalo Gaviria appeals from a May 22, 1988 judgment of conviction entered in the United States District Court for the Eastern District of New York (McLaughlin, J.), following a two day jury trial in March 1988. In a one-count indictment appellant and 11 co-defendants were charged with conspiracy to import, possess and distribute large quantities of cocaine between 1980 and March 1984 in violation of 21 U.S.C. §§ 841(a)(1) and 846 (1982 and Supp. IV 1986). Three of the co-defendants, Omar Sanchez, Sophie Carvajal and Luz Carvajal were tried and convicted in October 1987 in absentia. The conviction of a fourth co-defendant, Carlos Escobar, the only other defendant to appear, was affirmed. See United States v. Carmona, 858 F.2d 66 (2d Cir. 1988) (per curiam). Three of the remaining defendants are fugitives, two were shot to death before trial, and the charges against Fernando Carmona were dropped. Upon conviction appellant was sentenced to a 12-year prison term and fined $25,000. From the judgment of conviction Gaviria appeals. We affirm.

BACKGROUND

Investigation by the New York Drug Enforcement Task Force revealed that from early 1980 until March 1984 an international cocaine distribution organization headed by Colombian businessman Jose Santa Cruz-Londono was responsible for importing and distributing in the United States nearly 2000 kilograms of cocaine. From this illicit activity the organization, which operated cocaine distribution centers in New York City, Los Angeles, Miami and Houston, reaped millions of dollars in illegal profits.

The New York distribution center was run by "managers," who were responsible for conducting the daily narcotics business affairs for Santa Cruz. These managers included several of Gaviria's co-defendants, namely, Carlos Escobar, Omar Sanchez, Faoud Hassan and Fernando Carmona, as well as Alfredo Cervantes, who was the government's principal trial witness. The managers were responsible for maintaining "stash" locations in which large amounts of cocaine and cash were stored, delivering cocaine in kilogram packages to the organization's "clients," and collecting payments for those deliveries from the clients. The managers also received and stored the cocaine that was transported into New York by automobile or by the organization's airplane, and transferred large sums of cash to Panama where it was "laundered" and deposited in the organization's bank.

Another essential task performed by the managers was the maintenance of detailed accounts, consisting of handwritten ledgers and journals, reflecting the inflow and outflow of cocaine and cash. In particular, these records showed the amount of cocaine measured in kilograms delivered on a specific date to each client and the amount of the payment received. All of the approximately 40 or so clients of the Santa Cruz organization in New York City during the period 1982 through March 1984 were designated in the Santa Cruz organization's drug ledgers by a nickname or "code" name. Each purchased cocaine on a wholesale basis and controlled his or her own independent distribution network. These written records were seized by DEA agents from members of the Santa Cruz organization. The accounts and ledgers indicated that during the periods from May to December of 1981, and from April of 1982 to March of 1984 one particular client code-named "Palestino" purchased in excess of $800,000 worth of cocaine.

A jury trial took place over two days in early March 1988 and evidence presented there established that "Palestino" is the appellant Gonzalo Gaviria. After appellant's conviction a sentencing or Fatico hearing was held on May 27, 1988 to determine, inter alia, the reliability and accuracy of certain information contained and statements made in Gaviria's pre-sentence report. In particular, defense counsel challenged the assertion in the report that Gaviria was a "contract killer for the Santa Cruz organization . . . responsible for several drug related murders in New York and Florida." Finding the testimony of DEA Agent Jerome McArdle and probation officer Manuel Fuentes to be credible, and the information upon which they testified to be reliable, Judge McLaughlin imposed the earlier noted sentence.

Discussion

Three issues are raised on appeal. Gaviria contends that the district court: (1) improperly admitted evidence that the name "Lucho" next to the notation "Cali ofici" in the telephone address book seized from him by arresting officers was the same as that of Santa Cruz' brother in Cali, Colombia; (2) erroneously admitted testimony that he identified himself during routine post-arrest questioning by the false name "Carlos Santelli," after he had previously invoked his right to counsel; and (3) impermissibly enhanced his sentence based on hearsay testimony at the Fatico hearing which described how five informants, each unknown to the others, had positively identified appellant as a "contract killer." We discuss each of these issues in turn.

I

The government's chief witness Cervantes testified that Jose Santa Cruz-Londono, the leader of the drug organization, lived in Cali, Colombia and had a brother named Lucho. Cervantes further stated that at Christmas in 1982 he traveled to Cali and was present in both Santa Cruz' office and home. While there, he met Santa Cruz' wife and his brother Lucho. The informant claimed that he met Lucho Santa Cruz several times in Colombia and, on one occasion, in Florida.

In October 1987 appellant was arrested in Miami, Florida by officers of a DEA task force that had a warrant for his arrest. Upon performing a routine search of appellant's clothing, the officers discovered a red telephone-address book. Among the handwritten entries was the name "Lucho" above the words "Cali ofici" and a telephone number. The exhibit was offered and received into evidence without objection. Defense counsel's earlier motion to exclude this evidence had prompted a ruling from Judge ...


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