United States District Court, S.D. New York
OPINION & ORDER
HONORABLE PAUL A. CROTTY, United States District Judge
November 18, 2016, following a nine-day trial, a jury
convicted Defendants Efrain Antonio Campo Flores and Franqui
Francisco Flores de Freitas (“Defendants”) of
conspiring to (i) import five or more kilograms of cocaine
into the United States from a foreign country, in violation
of 21 U.S.C. §§ 952(a) and 960(a)(1), or (ii)
distribute five or more kilograms of cocaine, knowing and
intending that it would be imported into the United States,
in violation of 21 U.S.C. §§ 959(a) and 960(a)(3).
The thrust of the government's proof was that Defendants
agreed to arrange a flight transporting 800 kilograms of
cocaine from Venezuela to Honduras, knowing and intending
that the cocaine was ultimately bound for the United States.
According to the government, Defendants-both nephews of the
First Lady of Venezuela-sought to take advantage of their
political connections by coordinating a private flight that
would appear legitimate and thus be subject to less scrutiny,
notwithstanding the illicit drug cargo it would carry.
January 23, 2017, Defendants renewed their motion for a
judgment of acquittal (Fed. R. Crim. P. 29(c)), and moved in
the alternative for a new trial (Fed. R. Crim. P. 33(a)).
They contend that acquittal is warranted because the
government failed to present sufficient credible evidence to
support conviction and to disprove entrapment. They also
contend that a new trial is warranted because of a
cooperating witness's perjury and because the Court gave
an improper conscious avoidance instruction. For the reasons
stated below, the Court denies Defendants' motion.
Motion for a Judgment of Acquittal
Crim. P. 29(a) provides that “the court on the
defendant's motion must enter a judgment of acquittal of
any offense for which the evidence is insufficient to sustain
a conviction.” On a Rule 29 motion, the
“defendant bears the heavy burden of showing-when
viewing the evidence in the light most favorable to the
government, and drawing all inferences in favor of the
prosecution-that no rational trier of fact could have found
him guilty.” United States v. Gaines, 295 F.3d
293, 299-300 (2d Cir. 2002). The Court reviews all evidence
“in conjunction, not in isolation, ” United
States v. Persico, 645 F.3d 85, 104 (2d Cir. 2011), and
“may enter a judgment of acquittal only if the evidence
that the defendant committed the crime alleged is nonexistent
or so meager that no reasonable jury could find guilt beyond
a reasonable doubt, ” United States v.
Guadagna, 183 F.3d 122, 130 (2d Cir. 1999) (internal
quotation marks omitted).
argue that the evidence at trial was insufficient to
establish beyond a reasonable doubt that they “agreed
on the essential nature of the plan.” See United
States v. Lorenzo, 534 F.3d 153, 159 (2d Cir. 2008)
(citation and alteration omitted).
government's brief thoroughly details the evidence
offered at trial of Defendants' participation in the
charged conspiracy. The evidence showed that in a November 6,
2015 meeting in Honduras with an air traffic controller from
the Roatan Airport in Honduras, Flores de Freitas agreed that
the cocaine shipment would arrive on November 15, 2015,
between approximately 4:30 and 5:20 pm. See GX 222-T
at 7-9; GX 223-T at 6. Thereafter, on November 10, 2015,
Defendants traveled to Haiti to pick up their payment from
confidential source (“CS”) Jose Santos-Pena
(“CS-1”). See Tr. 379. At that meeting
with CS-1, Defendants confirmed that the shipment would be
made on November 15, 2015, see GX 231-T at 19, Campo
Flores specified that the delivery time was set for between
4:30 and 5:30, see Id. at 21, and Flores de Freitas
indicated that the flight was destined for the Roatan
airport, see Id. at 22. Defendants even explained
that the cocaine was already in suitcases. See Id.
Defendants argue that the trail goes cold here because there
was no agreement to send cocaine from Venezuela up through
Central America and then on to the United States. They focus
on questions Campo Flores asked CS-1 at the November 10, 2015
meeting about selling cocaine in Canada and Europe, and
characterize this discussion as a
“counterproposal.” See Mot. at 24-25.
But Campo Flores's general questions about other
countries, reviewed in the context of the entire discussion
at the November 10, 2015 meeting, do not suggest that he was
making a counterproposal. Viewing the evidence in
conjunction, and in the light most favorable to the
government, the Court does not find the evidence introduced
at trial so meager that no reasonable jury could have found
Defendants agreed on the essential terms of the conspiracy.
assert that even if a criminal agreement existed, there was
still insufficient evidence of their knowledge or intent that
the destination of the cocaine would be the United States.
See United States v. Londono-Villa, 930 F.2d 994,
999 (2d Cir. 1991); United States v. Romero-Padilla,
583 F.3d 126, 129 (2d Cir. 2009). They argue that
“there is no evidence that the Defendants even heard,
much less understood or agreed to, the informants'
supposed decision to target the United States.” Mot. at
27. The Court disagrees.
the government introduced evidence through the expert
testimony of Drug Enforcement Administration
(“DEA”) Special Agent Daniel Mahoney that
approximately 80 percent of the cocaine sent from Venezuela
along the Central American corridor (i.e.,
“traveling through Central America and along its shores
up into Mexico into the United States”) is destined for
the United States. See Tr. 544, 562. And cocaine
that travels along the Central American route bound for
Canada also goes over land through the United States.
See Tr. 584. Further, Special Agent Mahoney offered
his expert opinion that drug traffickers as well as “a
fair amount of the population” in South America have
knowledge of these drug routes. See Tr. 578-79.
the two CSes discussed importing drugs to the United States
at least 13 times in recorded conversations with Defendants.
While Defendants are correct that they never explicitly
manifested their agreement to target the United States in
those recordings, an explicit manifestation is not required.
Both Defendants conceded in their confessions that CS-1 had
told them that the drugs were bound for the United States.
See Tr. 152-53, 161.
light of Special Agent Mahoney's testimony, the CSes'
repeated statements about the United States, and
Defendants' own confessions, Defendants have failed to
show that there was insufficient evidence at trial to support
the verdict on this basis.
next argue that jurisdiction was manufactured because the
“references to the United States were unilaterally
supplied by persons working on behalf of the Government,
not the Defendants.” See Mot. at 28.
They contend that “[i]n the absence of evidence of a
‘voluntary action' on the part of the Defendants
implicating the United States nexus . . . there has been a
failure of proof as to an essential element of the offense,
and a judgment of acquittal should be entered.” See
Id. at 29 (citation omitted).
unproved-element theory of manufactured jurisdiction is that
if the government unilaterally supplies an essential element
of a crime, the government has in effect failed to prove that
element as to the defendant.” United States v. Al
Kassar, 660 F.3d 108, 120 (2d Cir. 2011). However,
“jurisdiction is not manufactured if the defendant then
takes voluntary actions that implicate the
government-initiated element.” Id. (internal
quotation marks and alteration omitted).
the government unilaterally introduced the concept of
targeting the United States, the unproved-element theory
still would not apply here because Defendants subsequently
took a number of voluntary actions in furtherance of the
conspiracy. Those actions include: (1) continuing to meet and
discuss the arrangement, and even bringing what the evidence
indicates was a brick of cocaine to one of the meetings; (2)
attempting to send pilots to Honduras to continue discussions
about logistics; (3) traveling on November 6, 2015 to
Honduras for further discussions about the logistics of
unloading the 800 kilograms of cocaine; and (4) flying to
Haiti on November 10, 2015 to pick up money for the deal and
to finalize details.