United States v. Gomez-Pabon

911 F.2d 847
CourtCourt of Appeals for the First Circuit
DecidedAugust 20, 1990
DocketNos. 88-1613 to 88-1617
StatusPublished
Cited by115 cases

This text of 911 F.2d 847 (United States v. Gomez-Pabon) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Gomez-Pabon, 911 F.2d 847 (1st Cir. 1990).

Opinion

BOWNES, Senior Circuit Judge.

These are consolidated appeals from convictions on jury verdicts rendered after a nine-day trial. The defendants, Luis Gomez-Pabon, Wilfredo Torres-Melendez, Edwin Delfín-Torres, Luis Casanova-Otero and Carlos Benitez-Guzman, were charged with conspiracy to import cocaine in violation of 21 U.S.C. §§ 952 and 963 (Count Three). Gomez, Torres, and Delfín also were charged with conspiracy to possess with intent to distribute marijuana, in violation of 21 U.S.C. §§ 841(a) and 846 (Count One), and conspiracy to import marijuana, in violation of 21 U.S.C. §§ 952(a) and 963 (Count Two). Each having been convicted and sentenced, defendants now appeal on a number of grounds from their convictions.

I. BACKGROUND

The charges contained in the indictment arose from two unsuccessful operations to import narcotics into Puerto Rico from Colombia. The first operation consisted of an effort, participated in by all five defendants, to hire a pilot to fly cocaine and marijuana from Colombia into Puerto Rico. Unhappily for the defendants, the pilot they recruited, William Martinez-Robles, was a government informant whose subsequent tip to the Drug Enforcement Administration (“DEA”) resulted in the seizure of the defendants’ airplane. Undeterred by the failure of their first operation and unaware of Martinez’s role as an informant, Gomez, Torres and Delfín then hired a second pilot to fly to Colombia — this time solely to obtain marijuana. The second pilot, chosen on the recommendation of Martinez, was an undercover DEA agent, and Gomez, Torres and Delfín were arrested while in the act of paying the pilot for his services. These arrests were followed by the arrests of Benitez and Casanova for their role in the first operation. The five defendants were subsequently indicted and convicted, leading to these appeals.

For the most part, the issues raised by defendants on appeal pertain to the first importation scheme. Accordingly, we turn to a more detailed exposition of the facts underlying this operation. As required, we present the facts in the light most favorable to the government.

Much of the evidence presented by the government with respect to the cocaine importation scheme consisted of the testimony of the government’s informant, Martinez-Robles. Martinez testified that he initially was approached by defendant Beni-tez in February 1987 and informed that a certain group in Puerto Rico was looking for a pilot to fly drugs into Puerto Rico from Colombia. When Martinez indicated his possible interest in the venture, Benitez arranged a March 3 meeting between Martinez and defendant Gomez, the group’s leader, at Benitez’s apartment. At this meeting, attended by Martinez, Benitez and Gomez, Gomez offered Martinez $100,000 to fly a load of cocaine and marijuana from Colombia to Puerto Rico in Gomez’s airplane. Martinez insisted on test-flying the plane first, which he did on March 4 and March 5. He was accompanied on these flights by his girlfriend Mara Baez, who was also a government informant, and by Gomez.

On March 11, Martinez attended another meeting with Gomez. During this meeting, which was attended by the defendant Torres as well, Gomez informed Martinez that the flight to Colombia was scheduled for March 13 and that the defendant Delfín would accompany him on the trip. Gomez, Torres, and Martinez then inspected a road in Puerto Rico that had been designated as the landing area for Martinez upon his return from Colombia.

The following day, March 12, Martinez, Gomez and Baez test-flew Gomez’s airplane for a third time to inspect the designated landing area from the air. The three subsequently traveled to Delfin’s house, where they discussed the flight with Delfín and agreed to meet the next morning to travel to the Arecibo Airport, where Gomez’s airplane was located.

[852]*852In accordance with these plans, Gomez, Torres, Delfín, Martinez and Baez met at Delfin’s house the following morning, March 13. Gomez gave Delfín money and gifts to bring to the Colombian cohorts. The group then traveled to the airport. At the airport, Martinez observed that the rear seats had been removed from Gomez’s airplane to make room for the narcotics and that the plane was fully fueled. Gomez earlier had told Martinez that a man named Casanova would take care of these duties, and also would not log the plane’s departure from the airport. Martinez and Delfín then boarded the plane. Before they could take off, however, federal agents approached the plane (having been tipped off by Martinez) and took Martinez away purportedly for questioning, thereby frustrating the mission.

Based on the above facts, as well as additional evidence that we discuss later, the jury convicted Gomez, Torres, Delfín, Benitez and Casanova of conspiracy to import cocaine (Count Three). Gomez, Torres and Delfín also were convicted of conspiracy to import marijuana (Count Two) and conspiracy to possess with intent to distribute marijuana (Count One). The convictions on Counts One and Two were based on the actions of Gomez, Torres and Delfín in hiring a second pilot to fly to Colombia after the failure of the first operation. Defendants raise several challenges to these convictions. We consider each of their arguments in turn.

II. JURY SELECTION

Defendants’ first contention on appeal is that their convictions must be reversed because a United States Magistrate presided over jury selection in their case. Defendants rest their argument on the Supreme Court’s recent decision in Gomez v. United States, — U.S. -, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989), which held that the Federal Magistrates Act does not authorize district courts to delegate jury selection in felony trials to magistrates. Unlike in Gomez, however, the defendants here failed to object at trial to the jury selection procedure. Whether or not this failure to object prevents defendants from successfully raising a Gomez claim on appeal is an issue that is currently before both the Supreme Court, see United States v. France, 886 F.2d 223 (9th Cir.1989), cert. granted, - U.S. -, 110 S.Ct. 1921, 109 L.Ed.2d 285 (1990), and this court sitting en banc. See United States v. Lopez-Pena, 890 F.2d 490 (1st Cir.1989) (opinion withdrawn pending reconsideration en banc ).1 In light of the pending appeals, we decline to address the jury selection issue here. We preserve the question as an open one and retain appellate jurisdiction. We shall address the matter after the issue has been decided in one or both of the cases just mentioned.

III. SUFFICIENCY OF THE EVIDENCE

Defendants next challenge the sufficiency of the evidence to support the jury’s conviction of each of them on Count Three’s charge of conspiracy to import cocaine.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Daaiyah Pasha
797 F.3d 1122 (D.C. Circuit, 2015)
United States v. George
839 F. Supp. 2d 430 (D. Massachusetts, 2012)
United States v. Rosario-Camacho
733 F. Supp. 2d 248 (D. Puerto Rico, 2010)
United States v. Cruz-Rodriguez
541 F.3d 19 (First Circuit, 2008)
United States v. Famania-Roche
537 F.3d 71 (First Circuit, 2008)
United States v. Ofray-Campos
534 F.3d 1 (First Circuit, 2008)
United States v. Cirilo-Munoz
504 F.3d 106 (First Circuit, 2007)
United States v. Tom
504 F.3d 89 (First Circuit, 2007)
United States v. Dwyer
238 F. App'x 631 (First Circuit, 2007)
United States v. Pesaturo
476 F.3d 60 (First Circuit, 2007)
United States v. Gomez-Rosario
418 F.3d 90 (First Circuit, 2005)
Soto-Lara v. United States
367 F. Supp. 2d 189 (D. Massachusetts, 2005)
United States v. Benson
127 F. App'x 808 (Sixth Circuit, 2005)
United States v. Donato Morales
382 F.3d 42 (First Circuit, 2004)
United States v. Llinas
373 F.3d 26 (First Circuit, 2004)
United States v. DeCologero
364 F.3d 12 (First Circuit, 2004)
United States v. Laguna Estela
313 F. Supp. 2d 20 (D. Puerto Rico, 2004)
United States v. Casas
356 F.3d 104 (First Circuit, 2004)
United States v. Carlos Cruz
352 F.3d 499 (First Circuit, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
911 F.2d 847, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-gomez-pabon-ca1-1990.