UNITED STATES of America, Appellee, v.

Jose Esteban CAMBINDO VALENCIA, Jose Manuel Escobar Orjuella, Federico Gonzalez, Alfonso Velasco, Mario Caicedo, Edgar Enrique Moreno Ortiz, Julio Francisco Bermudez Prado, Rafael Flores Valencia, Carmen Vivas Freddie Williams, Jesus Losada, and Rosalinda Losada, Appellants. Nos. 759 to 763, 765, 766, 770, 771 and 840 to 842, Dockets 78-1364 and 78-1438 to 78-1448.

United States Court of Appeals, Second Circuit.

Argued April 11, 1979.

Decided Oct. 12, 1979.

On Rehearing Jan. 10, 1979.

603

Donna Claire Pendergast, Philip S. Greene, Houston, Tex., for appellant Jose Esteban Cambindo Valencia.

Irving Katcher, New York City, for appellant Jose Manuel Escobar Orjuella.

Charles E. Clayman, New York City, Dawson, Kimelman & Clayman, New York City, for appellant Federico Gonzalez.

Jonathan J. Silbermann, New York City, Federal Defender Services Unit, Legal Aid Society, for appellant Alfonso Velasco.

Albert A. Gaudelli, Flushing, N. Y., for appellant Mario Caicedo.

Theodore Krieger, New York City, for appellant Edgar Enrique Moreno Ortiz.

Julius M. Wasserstein, Lasher & Wasserstein, New York City, for appellant Julio Francisco Bermudez Prado.

Maurice Brill, New York City, for appellant Rafael Flores Valencia.

Michael Ira Asen, New York City, for appellant Carmen Vivas.

Raphael F. Scotto, New York City, for appellant Freddie Williams.

F. Louis Caraballo, Brooklyn, N. Y., for appellant Jesus Losada.

Michael G. Dowd, Kew Gardens, N. Y., for appellant Rosalinda Losada.

Barry E. Schulman, Asst. U. S. Atty., Brooklyn, N. Y. (Edward R. Korman, U. S. Atty., for the Eastern Dist, of New York, Harvey M. Stone, Mary McGowan Davis, Diane F. Giacalone, Vivian Shevitz, Asst. U. S. Attys., Brooklyn, N. Y., of counsel), for appellee.

Before OAKES and GURFEIN, Circuit Judges, and PIERCE, District Judge.^{Footnote *}

OAKES, Circuit Judge: This appeal is from convictions of ten defendants for conspiracy to commit narcotics offenses (Count I, 21 U.S.C. §§ 846, 963), from convictions of several for the commission of substantive narcotics offenses (Counts II-X, XII-XIII, 21 U.S.C. §§ 841, 960), and from a conviction of one defendant, Jose Esteban Gambindo Valencia (Cambindo),^{Footnote 1} for conducting a "continuing criminal enterprise" (Count XI, 21 U.S.C. § 848). Trial to a jury took place in the United States District Court for the Eastern District of New York, Jacob Mishler, Chief Judge. The court ruled as a matter of law that there was involved only a single conspiracy. Consequently it did not submit to the jury the question whether there were multiple conspiracies, but merely the question whether there was a conspiracy and whether each defendant was a member of it. Because we do not agree that the issue of single/multiple conspiracy could be determined as a matter of law in this case, and because the evidence permitted the finding of several conspiracies (and in the case of some defendants demanded such a finding), we must assume that multiple conspiracies were proved. In so doing, we must decide which of the appellants may have been prejudiced by the variance between the conspiracy charged and the conspiracies proved. We find that only one narrower conspiracy was sufficiently proved by the evidence to outweigh any possible prejudice from the spillover of proof as to other conspiracies. We therefore affirm the convictions only of those appellants who were clearly linked by the evidence with that conspiracy. We also reverse the convictions of others who might be linked with that conspiracy and remand their cases for a new trial. Finally, we reverse the convictions of those appellants whose connections with the conspiracy proved were so remote that they cannot under any circumstances be held to have participated in that conspiracy. On the substantive charges, we reverse the convictions of all but one defendant and remand for new trials. However, we affirm all the substantive convictions of appellant Cambindo, finding that any prejudice was, in his case, harmless.

STATEMENT OF THE CASE

I. Indictment and Convictions The superseding indictment (78 CR 106(S)) charged twenty-seven defendants in one conspiracy and charged assorted defendants in twelve substantive counts, one of which accused defendant Cambindo of

engaging in a continuing criminal enterprise (Count XI; 21 U.S.C. § 848). The conspiracy count (Count I) charged a conspiracy, occurring between approximately January, 1972, and October, 1976, violating 21 U.S.C. §§ 846 and 963, (1) to import and (2) to distribute and possess with intent to distribute substantial quantities of cocaine, as well as (3) to conceal the existence of the conspiracy. Four named coconspirators, Thomas Esposito, Lucho Plata, Louis Guillermo Moreno Serna (Moreno Serna) and Augustin Lemos, pleaded guilty (apparently to substantive counts) and do not appear. The case against another named conspirator (Juan Bautista Torres) was dismissed at the close of the Government's case. Four named coconspirators were "John Does," never arrested, and five more named were fugitives at the time of trial. One more (Zohie Perez) was convicted, but is a fugitive. The remaining twelve, all of whom appeal, were each convicted of the conspiracy count; these include Cambindo, Rafael Flores Valencia (Flores), Carmen Vivas (Vivas), Freddie Williams, Jesus Losada, and Rosalinda Losada, each of whom was also convicted of substantive counts,^{Footnote 2} and Federico Gonzalez (Gonzalez), Jose Manuel Escobar Orjuella (Escobar), Alfonso Velasco (Velasco), Mario Caicedo (Caicedo), Edgar Enrique Moreno Ortiz (Moreno Ortiz), and Julio Francisco Bermudez Prado (Bermudez Prado), none of whom was charged with a substantive count.

Each defendant named in a substantive count whose case went to the jury^{Footnote 3} was also convicted on each such count: Cambindo, named in Counts II, V, VI, X, and XI; Flores (Count IX); Vivas (Count X); Williams (Counts VII and VIII); Jesus Losada (Counts XII and XIII); and Rosalinda Losada (Counts XII and XIII). All except Vivas, Williams, and Rosalinda Losada are in custody serving their sentences, set out in the margin. ^{Footnote 4}

Thus, there was a verdict of guilty as to every defendant on every count in which he or she was charged.

II. The Government's Proof

A. In General The Government contended at trial that the alleged conspiracy involved persons who knew one another and in some cases had grown up together in Buenaventura, a Colombian port city. The Government presented evidence that the defendants utilized vessels of the Grancolombiana line (especially the Ciudad de Bogata and the Ciudad de Buenaventura) to import the cocaine to New York (although some of the transactions put in evidence relate to shipments to

Miami, Baltimore, Los Angeles, and San Francisco), where the ships usually docked at Pier 3 below Brooklyn Heights or at the Bush Terminal in Brooklyn. These defendants, according to the Government, principally used the same general methods to remove the cocaine from the ships'viz., couriers carrying it on their bodies off the ship or seamen lowering the cocaine overboard to waiting "swimmers" who would enter the East River at the base of the Brooklyn Bridge (or other points), swim downstream to the vessel, get the shipment, and then swim further to an arranged point and waiting "pick-up man." They would exchange the illegal drugs among themselves or with others, principally at the Tunnel Bar, an establishment near the Brooklyn Bridge, although there were also transactions at Red Hook Park, the La Gran Casa store, a house in Queens, another house on Amity Street in the Cobble Hill section of Brooklyn, and elsewhere in greater New York City. The Tunnel Bar, owned by appellant Gonzalez and evidently the "on-the-drug-scene" successor to the Buenaventura Social Club on Hamilton Avenue in Brooklyn, exhibited sufficient prominence in the forty-eight or so transactions described during the trial to lead the Government to refer to the alleged conspiracy on occasion as the "Tunnel Bar Conspiracy." At other times, however, it has been referred to as the Buenaventura or the Grancolombiana Conspiracy.

To clarify the myriad of individual transactions that must be recounted in detail in order to analyze the contentions of the parties, a brief listing in the nature of a cast or principal characters may be helpful. The Suppliers/Senders from Colombia include one Mauro, appellant Flores, defendant Alfonso Villafana (Villafana), Silvio, Juan Cambindo Rodriguez, and Ricardo Cambindo Rodriguez. Seamen include a "John Doe" and defendants Lemos, Jose Argoti, and Figueroa. Traffickers/Dealers include appellants Gonzalez, Escobar, Velasco, Mario Caicedo, Bermudez Prado, Cambindo, Moreno Ortiz, Rosalinda Losada, Jesus Losada, and defendant Ulpiano Vega. The Body Carriers include two longshoremen, defendant German Largacha and appellant Freddie Williams, as well as Jaime Ortiz, "Pepo" (Carlos Riascos), "Kilometer," and Alvaro Caicedo. The Swimmers include Government witness Pacifico Caicedo Rodriguez, Daniel Riascos, Conrado Ortiz, and defendant "El Wallo." Pick-up Men or Couriers include Government witness Moreno Serna, defendant "El Bolla," and Gillian Vargas. Government witness Emilio Rivas is a Purchaser, and Local Dealers include defendants Zohie Perez and "Lucho Plata," as well as appellant Vivas. It must be understood, however, that at various times, different characters appear in different roles: the Government witness Pacifico Caicedo Rodriguez, for example, swims, traffics, picks up, and deals; there is evidence that appellant Flores in addition to supplying also deals.

B. Specific Proof We have found no way to classify effectively the forty-eight or so specific transactions adduced at trial. The Government kindly furnished us postargument with flow charts purporting to show connections among the various participants, but we did not find them particularly helpful. We therefore recount, chronologically and in depth, the transactions about which the Government offered proof, taking the proof in the light most favorable to the Government. 1 and 2 (similar acts) Rivas and Gonzalez; Rivas and Escobar (and Velasco).

Emilio Rivas, a former resident of Buenaventura, aware that a number of the people at the Buenaventura Social Club on Hamilton Avenue in Brooklyn did business in cocaine, testified that, in 1971, prior to the conspiracy charged, he asked several of them if he too could get in the business. About the time appellant Gonzalez opened the Tunnel Bar, Rivas asked Gonzalez to sell him small amounts of cocaine on consignment and Gonzalez did so. Rivas in turn would sell this cocaine in the Tunnel Bar and elsewhere. In 1972, as Rivas's

clientele grew, Gonzalez began to provide eighth kilograms to him at $2,000 per unit. Rivas would order and receive the cocaine from Gonzalez at the Tunnel Bar. Rivas at this time also found a second supplier at the Tunnel Bar, appellant Escobar, who also began to sell Rivas eighth kilograms of cocaine on consignment at $2,000 per unit; the transactions were often negotiated, and delivery of the cocaine made, in the Tunnel Bar. Deliveries were usually made in the toilet in the back of the 15' X 30' bar. As time went on, in 1972, Rivas began to receive from Escobar half kilograms of cocaine for approximately $9,000 each. Often, at Escobar's direction, Rivas would pay the appellant Velasco. 3-6

Pacifico Caicedo Rodriguez; here of Mario Caicedo, Escobar and Velasco again, and a theft.

In March of 1972, Pacifico Caicedo Rodriguez (Caicedo Rodriguez), another resident of Buenaventura, who in Colombia had been given the telephone number of the Tunnel Bar in Brooklyn, called it when he arrived. He soon talked to appellants Gonzalez, Mario Caicedo, Velasco, Escobar, and others in the bar about the cocaine trade. One day his opportunity came. Mario Caicedo told him that a ship was scheduled to leave at seven o'clock that evening and that there were still three pounds of cocaine on board. Mario Caicedo drove him to an apartment that appellants Escobar and Velasco maintained, but did not inhabit, across the street from the Tunnel Bar. Caicedo Rodriguez learned that Escobar and Velasco were the owners of the cocaine and that Mario Caicedo was an eager purchaser. Escobar and Velasco explained that the originally assigned "carrier" (who was to have walked off the ship with the cocaine on his body) had been unable to conceal the full load and thus left three pounds of cocaine behind.

609

Velasco took Caicedo Rodriguez to the ship, where a seaman handed a package of cocaine to Velasco, who handed it to Caicedo Rodriguez. Caicedo Rodriguez then walked the package off the ship in his pants. The package was then turned over to Escobar and Velasco in front of the Tunnel Bar. The next day at Escobar's and Velasco's apartment, Caicedo Rodriguez was paid $1,500. Also present was appellant Mario Caicedo.

At some time thereafter Caicedo Rodriguez, who was taking marijuana off a Grancolombiana ship, was informed by Escobar that, on the same ship, he had thirty kilograms of cocaine. Caicedo Rodriguez offered to remove this cocaine, but Escobar Orjuella told him that Pepo was going to do that. Later, Pepo brought the cocaine to Caicedo Rodriguez's apartment and asked him to guard it for a week. Why Caicedo Rodriguez was entrusted with this much cocaine does not appear. Accordin