United States v. Hugo Sarmiento, Thomas K. Fahey, Alfonso Irribarren

744 F.2d 755
CourtCourt of Appeals for the Eleventh Circuit
DecidedFebruary 5, 1985
Docket82-5705
StatusPublished
Cited by40 cases

This text of 744 F.2d 755 (United States v. Hugo Sarmiento, Thomas K. Fahey, Alfonso Irribarren) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh 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. Hugo Sarmiento, Thomas K. Fahey, Alfonso Irribarren, 744 F.2d 755 (11th Cir. 1985).

Opinions

TJOFLAT, Circuit Judge:

Hugo Sarmiento, Alfonso Irribarren and Thomas Kevin Fahey appeal their convictions for: (1) conspiring to possess, (2) possessing with intent to distribute, and (3) removing from U.S. Customs Service custody a quantity of cocaine secreted in a packing crate.1 Appellants question the sufficiency of the evidence and several trial rulings of the district judge. We conclude that the government proved the crimes charged and that no reversible error occurred. Accordingly, we affirm.

I.

At 6:00 a.m. on Friday, February 19, 1982, a gray wooden crate approximately two feet by two feet by three feet marked “Boeing aircraft partr” [sic] arrived at Miami International Airport on Faucette Airlines flight # 280 from Lima, Peru. The crate was sealed with twelve screws and two steel bands; the gray paint had been applied over the tightened screws. The crate was not listed on the airplane's manifest and contained no documentation indicating whether it was part of the airplane’s flight kit or cargo, and if the latter, who had sent it and who was to receive it.

The plane and its contents, having arrived from a narcotics source country, Peru, were inspected by U.S. Customs Service officials. Customs Inspector Draun cut the steel bands surrounding the crate. Customs Inspector Knapik unscrewed the top and inspected the contents. Inside he found twenty-six packages, each weighing one kilogram, of grayish-white powder that field tested positive for cocaine. Inspector Knapik resealed the crate, left the airplane and informed his superiors. Employees of Servair, a bonded Customs warehouse, proceeded to unload the crate as well as other cargo from the plane and move it on a wooden pallet into the Servair warehouse.2

[758]*758The Customs Service and the Drug Enforcement Administration (DEA) decided to conduct a surveillance of the crate. A team of Customs agents from the Tactical Enforcement Support Team secreted themselves in the adjacent warehouse and established a twenty-four hour a day watch over the gray crate for the next five days. During the course of this surveillance the agents noted who had contact with the crate and what that contact was.3

Later on the morning of the nineteenth, the manager of the Servair warehouse, appellant Sarmiento, arrived and opened the warehouse. At this time the gray crate, along with several other boxes from Faucette flight # 280, was resting on a pallet located in the middle of the building. Upon entering the building, Sarmiento went directly to the crate, bent down and began carefully examining it, running his hands over the crate as he did so.4 Twenty minutes later Sarmiento came out of his office and examined the crate again.

Early that afternoon Sarmiento moved the pallet containing the crate and the other cargo from flight # 280 to a scale located in the warehouse. Sarmiento then weighed the pallet with its contents and examined the crate, once more running his hands over its surface. Sarmiento separated the crate from the other cargo, placing it on a pallet by itself. He then moved it to a different location than that designated for Faucette cargo.

Shortly thereafter, Joseph Mangin and Brent McFarlan arrived at Servair in a blue BMW driven by McFarlan. Mangin and McFarlan entered the warehouse and met briefly with Sarmiento. After they left, Sarmiento once more moved the crate, this time to the area designated for Faucette freight, and placed several other boxes on the same pallet with the crate. At about 5:00 p.m., Sarmiento and all the other Servair employees closed the warehouse and left for the day. At 10:00 that night, Customs inspectors entered the warehouse, opened the crate, and replaced all but one of the packages of cocaine base with packages of inert material. Nothing further of note was observed by the agents at the warehouse over the weekend.

At 8:30 on Monday morning Sarmiento opened the warehouse and went directly to the crate and examined it. At 10:30 a.m. he placed an additional box on the pallet with the crate. At 2:00 that afternoon Mangin and McFarlan returned to the warehouse in the same blue BMW once more driven by McFarlan. This time, however, only Mangin entered the warehouse, while McFarlan remained behind in the car. At 2:05 p.m., appellant Irribarren arrived, at which time he and McFarlan entered the warehouse together. McFarlan, Irribarren and Mangin then briefly conversed near the warehouse door.

Mangin and Irribarren had each been consignees on packages of furniture that had been shipped from Peru on Faucette Airlines one week earlier. Customs agents had closely examined the furniture on its arrival and had drilled holes into some of the pieces. Furniture is a commonly used hiding place for drug shipments. This shipment, having originated in Peru, aroused the suspicion of Customs officials. A further determination, that the addresses listed for Irribarren and Mangin were nonexistent, led them to closely examine the furniture. However, no contraband was discovered in the furniture.

Shortly after 2:00 p.m. on February 22, 1982, two Customs inspectors arrived at the warehouse and with the help of Mangin [759]*759and Irribarren proceeded to remove the cardboard wrapping that covered the two furniture shipments. After the Customs inspectors left the warehouse Sarmiento displayed the crate to Mangin, Irribarren, and McFarlan, rotating it in front of them and pointing out features on the surface of the crate. The four men then began placing the furniture consigned to Mangin and Irribarren, and the cardboard wrapping which had initially covered the furniture, on the pallet with the crate, and over the crate itself. After completing this task they left the warehouse.

The following day Sarmiento opened the warehouse and once more checked the crate. At 9:00 a.m. Irribarren arrived in a car rented to Brent McFarlan’s wife, Leah. He removed the cardboard covering the crate and unscrewed two screws from the crate. He then replaced the cardboard over the crate and left the warehouse.

At 1:30 p.m. Irribarren returned to the warehouse and, after conferring with Sarmiento, departed at about 2:00 p.m. He drove to a lunch truck parked several blocks away. There, he got out of his car, walked over to a blue BMW parked nearby and conversed with the driver. Shortly after, Mangin and McFarlan arrived at the Servair warehouse in a blue BMW. Man-gin entered the warehouse, leaving McFarlan behind the wheel of the car.

Appellant Fahey then arrived in a white panel truck and entered the warehouse carrying four or five “moving blankets” which he dropped on the floor near the scale. He walked over to Sarmiento and Mangin who were conversing near the crate. After speaking with Sarmiento and Mangin, Fahey picked up one of the moving blankets, returned to the crate, and covered it with the blanket. Mangin and Fahey then loaded the crate and the furniture into the white panel truck.

Mangin and McFarlan left the warehouse in the blue BMW and moments later Fahey drove off in the truck, leaving behind the moving blankets on the floor of the warehouse. Fahey was followed by a string of cars containing Customs and DEA agents. He drove away from the warehouse for about thirty minutes and then, retracing his route, returned to the warehouse and parked the truck.

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Bluebook (online)
744 F.2d 755, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-hugo-sarmiento-thomas-k-fahey-alfonso-irribarren-ca11-1985.