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U.S. v. LONDONO-VILLA

April 9, 1990

UNITED STATES OF AMERICA
v.
MAURICIO LONDONO-VILLA, DEFENDANT.



The opinion of the court was delivered by: Leisure, District Judge:

ORDER AND OPINION

Defendant Mauricio Londono-Villa ("Londono") was convicted after a trial by jury on two counts: first, for conspiring to import cocaine into the United States in violation of 21 U.S.C. § 952(a), 960, and 963 and second, for aiding and abetting the importation of cocaine in violation of 21 U.S.C. § 952(a) and 960, and 18 U.S.C. § 2.*fn1 Defendant has filed post-trial motions pursuant to Fed.R.Crim.P. 29(c), to set aside the verdict of the jury on both counts, and pursuant to Fed.R.Crim.P. 33 and 34, demanding a new trial and an arrest of judgment. In brief, defendant argues that the Court erred in instructing the jury on the elements of the crimes charged in both counts of the indictment. More specifically, defendant claims that the government is required, under the relevant federal narcotics statutes and the caselaw interpreting them, to prove beyond a reasonable doubt that the defendant knew that the intended destination of the cocaine was the United States, and that it was the defendant's specific intent to import the cocaine into the United States.

BACKGROUND

In deciding post-trial motions pursuant to Fed.R.Crim.P. 29(c), the Court must view the evidence "in the light most favorable to the government," United States v. Gurary, 860 F.2d 521, 523-24 (2d Cir. 1988), cert. denied, ___ U.S. ___, 109 S.Ct. 1931, 104 L.Ed.2d 403 (1989), and draw all reasonable inferences and resolve all issues of credibility in favor of the verdict. United States v. Villegas, 899 F.2d 1324, 1338-39 (2d Cir. 1990); United States v. Chang An-Lo, 851 F.2d 547, 554 (2d Cir.), cert. denied, ___ U.S. ____, 109 S.Ct. 493, 102 L.Ed.2d 530 (1988). The following brief synopsis of the relevant facts is presented pursuant to this standard.

In March, 1987, several individuals, including co-defendant Cuevas, met in Panama City, Panama to discuss a plan to import approximately 150 kilograms of cocaine from Colombia through Panama and into the United States (Tr. at 111-35).*fn2 Accompanying one of the central conspirators from Colombia to Panama, but not participating in any of the negotiations, was defendant Londono (Tr. 131). Londono's role was to assist another participant in the plan, Frank Kelly ("Kelly"), a government confidential informant, in the navigation of a small plane from Panama City to an airstrip in rural Colombia where the shipment of cocaine was to be waiting (Tr. 131-35, 320-28). Londono would then remain in Colombia while Kelly flew back to Panama and eventually on to the United States.

While in Panama, Londono commented to Rene DeLacova, an undercover agent of the Drug Enforcement Administration ("DEA"), that he was familiar with the location of the airstrip where the cocaine would be waiting (Tr. 132-33). Londono also said that while he was performing this particular task at the last minute as a favor to a friend, he had worked for an associate of one of the other conspirators (Tr. 134). After a delay of one day, Londono and Kelly took off in a small plane from an airport outside Panama City and flew, under Londono's instructions and in a manner to avoid observation, to a grass airstrip in Colombia (Tr. 131-35, 320-28). There, according to Kelly, Londono assisted in the loading of 111 kilograms of cocaine into the airplane (Tr. 331). Due to an unexpected shortage in the amount of cocaine, Londono promised Kelly that he would telephone back to Panama to alert the other conspirators that Kelly was not responsible for the discrepancy (Tr. 330). The evidence concerning Londono's participation in the conspiracy and importation scheme was limited to these alleged actions and statements. The cocaine was eventually transported from Panama into the United States.

During a conference with the parties prior to instructing the jury, the Court heard extensive argument on whether to include a charge requiring the government to prove beyond a reasonable doubt that Londono knew the destination of the cocaine was to be the United States. The Court declined to give the charge requested by Londono (Tr. 927), but also declined the government's request to charge the jury that proof of such intent was not required (Tr. 930-34). The Court foresaw the possibility that the jury would inquire by note into the question of specific intent, but believed it was more prudent to see if the jury might decide the case without need to reach that point of law (Tr. 931-33). The Court realized that the legal question posed a "knotty problem" and hoped to avoid resolving it if the jury found other grounds on which to base its decision (Tr. 931-33).

During its deliberations, the jury did indeed request clarification on whether the government was required to prove that Londono knew the destination of the cocaine was the United States. The first time that the jury made such a request, the Court responded by sending into the jury room the portions of the jury charge which concerned the law of conspiracy to import cocaine and aiding and abetting the importation of cocaine (Tr. 1388-1402).*fn3 The jury subsequently sent another note to the Court again requesting clarification on the specific intent requirements of the law (Tr. 1445). After discussion with the parties (Tr. 1454-60), the Court provided the jury with a supplemental instruction that "the defendant need not have specific knowledge that the cocaine was to be imported into the United States" (Tr. 1463). The jury thereafter convicted Londono on both counts of the indictment.

DISCUSSION

A. Rule 29(c) Motion

1. Statutory Argument

Londono argues that to convict a defendant of conspiring to import cocaine in violation of 21 U.S.C. § 952(a), 960 and 963, the government must prove beyond a reasonable doubt that the defendant knew that the destination of the cocaine was to be the United States, and that the defendant possessed the specific intent to import the cocaine into the United States. Section 952(a) states in relevant part that "[i]t shall be unlawful . . . to import into the United States from any place outside thereof, any controlled substance. . . ." Section 963 states that "[a]ny person who attempts or conspires to commit any offense defined in this title shall be subject to the same penalties as those proscribed for the offense, the commission of which was the object of the attempt or conspiracy."

Londono emphasizes that 21 U.S.C. § 960 provides that any person who "knowingly or intentionally imports or exports a controlled substance" contrary to § 952 is punishable within certain limits. Londono claims that the "knowingly and intentionally" language of § 960 should be read to require that under § 952(a), the defendant knew and intended the destination of the narcotics to be the United States. Londono argues that, since § 952(a) describes the offense and § 960 the punishment, the two statutes must be read together, and interpreted to create a requirement that the government prove the defendant's specific intent with respect to the destination of the narcotics.

Rather than view the "into the United States" language of ยง 952(a) as an element of intent which must be proved, the government contends that the phrase is "jurisdictional" in that it reflects the geographical and situational limits to which the statute may be applied. For example, the language limits the ability of American courts to try and convict individuals acting outside the United States, or conspiring from within the United States to take action which has no effect within this country. Thus the government rejects Londono's claim that the "knowingly and intentionally" ...


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