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United States v. Flores

United States District Court, S.D. New York

March 24, 2017


          OPINION & ORDER

          HONORABLE PAUL A. CROTTY, United States District Judge

         On 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.

         On 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.


         I. Motion for a Judgment of Acquittal

         Fed. R. 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).

         A. Conviction

         1. Agreement

         Defendants 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).

         The government's brief thoroughly details the evidence offered at trial of Defendants' participation in the charged conspiracy.[1] 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. at 20-21.

         Nonetheless, 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.

         2. Specific Intent

         Defendants 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.

         First, 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.

         Second, 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.

         In 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.

         3. Manufactured Jurisdiction

         Defendants 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).

         “The 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).

         Even if 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.

         4. ...

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