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UNITED STATES v. ORJUELA

December 18, 1992

UNITED STATES OF AMERICA, Plaintiff,
v.
HENRY ORJUELA, Defendant.



The opinion of the court was delivered by: I. LEO GLASSER

 GLASSER, United States District Judge:

 In July of 1991, defendant Henry Orjuela was convicted of one count of conspiring to import five kilograms or more of cocaine. Mr. Orjuela now argues that the government's misconduct in connection with the grand jury proceeding by which he was indicted entitles him to an order dismissing that indictment. In addition, he moves this court, first, to grant him a new trial based on the government's constructive amendment of the indictment and, second, to set aside the jury's verdict based on the absence of sufficient evidence against him at trial. For the following reasons, this court must deny Mr. Orjuela's motions.

 I. MOTION TO DISMISS INDICTMENT

 A. Grand Jury Proceedings

 Any discussion of defendant Orjuela's first post-trial motion must begin with an examination, of the testimony before the grand jury concerning Henry Orjuela's criminal activity. All of the evidence against Orjuela was presented through Special Agent Paul W. Vick, who relied primarily on information from a confidential informant known as "Roberto." Agent Vick informed the grand jurors that Roberto, a previously convicted heroin trafficker (Tr. 37-39), was an informant whose "reliability has been proven and it has resulted in the seizure of cocaine and also a number of arrests have resulted from the cooperation of the informant." (GJM 9)

 The "seizure of cocaine" to which Agent Vick referred was a large-scale narcotics importation scheme instituted by Roberto at the instruction of the FBI. Roberto contacted various drug traffickers in Los Angeles and informed them that his organization could transport substantial quantities of cocaine into the United States. (Tr. 39-40) The government confirmed Roberto's credibility by arranging for him to intervene and reduce the sentences of two drug traffickers, Gladys Londono-Ramirez and Luisa Castaneda. (Tr. 40-43) With his reputation thereby enhanced, Roberto was able to come into contact with Jaime Orjuela, Henry Orjuela's brother and one of the four or five largest distributors of cocaine out of Columbia from the Cali cartel. (GJM 7-10) Roberto's cooperation enabled the government to seize approximately 1500 kilograms of cocaine in Guatemala and 500 kilograms in New York; the grand jury was informed that "the sum total that [the government] could produce as evidence would be over 2000 kilos of cocaine." (GJM 16)

 Agent Vick provided the following testimony to the grand jury concerning Henry Orjuela's involvement in the cocaine importation scheme:

 Q: Did the confidential informant have occasion to speak to a man by the name of Henry Orjuela.

 A: Yes, he did.

 Q: First of all, who's Henry Orjuela.

 A: Henry Orjuela is the brother and one of three brothers of Jaimi Orjuela. There are four brothers. All of them are involved in this conspiracy. They all work for -- or I should say, Jaimi Orjuela, the only person that's above him in the Cali cartel is a man by the name of Jose SantaCruz Landanio (phonetic) who's one of the heads of the cartel.

 Jaimi Orjuela works right under Jose SantaCruz Landanio. Henry Orjuela works directly under Jaimi and manages all of Jaimi's operational affairs. In the summer 1989, Jaimi Orjuela and a number of other people in Columbia that were being sought after by the Columbian authorities went into hiding.

 In Jaimi's absence, Henry assumed control of Jaimi's operations and so, Henry then stepped in and instructed our informant to do certain things.

 Q: What I want to do is direct you specifically to some of the conversations between Henry and the informant beginning on August 22, 1989, and here I am referring, specifically, to paragraph eight of Grand Jury Exhibit 1 [the complaint against Mr. Orjuela].

 A: Yes, he did. It was a taped conversation.

 Q: And have you had an opportunity to review the transcript ...


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