United States v. Marrero

708 F. Supp. 1279, 1989 U.S. Dist. LEXIS 2690, 1989 WL 24053
CourtDistrict Court, S.D. Florida
DecidedMarch 16, 1989
DocketNo. 86-1031-CR
StatusPublished
Cited by1 cases

This text of 708 F. Supp. 1279 (United States v. Marrero) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Marrero, 708 F. Supp. 1279, 1989 U.S. Dist. LEXIS 2690, 1989 WL 24053 (S.D. Fla. 1989).

Opinion

ORDER DENYING DEFENDANT’S MOTION FOR JUDGMENT OF ACQUITTAL OR FOR A NEW TRIAL

MARCUS, District Judge.

THIS CAUSE was tried before the Court and a jury with a resultant verdict finding the Defendant Evelio Anibel Marrero guilty of both counts of the Indictment, which charged conspiracy to distribute cocaine (Count I) and the distribution of at least five kilograms of cocaine (Count II), in violation of Title 21, U.S.C. §§ 846, 841(a)(1) and Title 18, U.S.C. § 2. Defendant has filed a Motion for a Judgment of Acquittal under Fed.R.Crim.P. 29(c), and an alternative request for a new trial, alleging that co-conspirator’s statements were improperly admitted into evidence and that the Government failed to adduce legally sufficient evidence to prove either that Marrero had knowingly participated in the conspiracy to distribute cocaine or that he had intentionally distributed the cocaine. After having reviewed pertinent excerpts of the trial testimony, taken extensive ar[1280]*1280gument and having carefully considered all of the evidence in light of the presumptions in favor of the jury’s verdict and the guiding case law, we now DENY the Defendant’s alternative motions.

I.

Defendant Marrero was charged with conspiracy to distribute cocaine along with Eduardo Flores, Fernando Morales and Alfredo Marcellino Sanchez. The Defendant Marrero does not challenge that these co-defendants were involved in a cocaine distribution conspiracy, but rather asserts that the proof “falls woefully short of demonstrating that MARRERO even knew of the existence of the conspiracy, let alone that he knowingly and voluntarily joined it.” [Defendant’s initial Motion for Judgment of Acquittal at 3]. Defendant admits that the evidence proved the following facts:

... Marrero may have been in the area of the Sofitel Hotel, in the company of co-defendants Sanchez and Morales on December 17, 1986, the date that Sanchez had a meeting with Special Agent Kibble and the confidential informant and that when arrested, Marrero was in the company of Flores at a shopping center, shortly after Flores had participated in a meeting at Sanchez’s house, at which cocaine transactions were discussed.

Id. at 4.

It is by now axiomatic that in ruling on a criminal defendant’s post-verdict motion for a judgment of acquittal, we must view all of the evidence in the light most favorable to the government, Burks v. United States, 437 U.S. 1, 16-17, 98 S.Ct. 2141, 2149-2150, 57 L.Ed.2d 1 (1978); Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), while drawing all reasonable inferences and credibility choices in favor of the jury’s verdict. Hamling v. United States, 418 U.S. 87, 124, 94 S.Ct. 2887, 2911, 41 L.Ed.2d 590 (1974). The standard we apply is the same as that used by a court of appeals in reviewing a challenge to the sufficiency of the evidence on appeal by the defendant. See United States v. Burns, 597 F.2d 939, 941-42 (5th Cir.1979) (when government appeals from a district court’s order granting a post-trial judgment of acquittal, the same standard of review applies as if the defendant were appealing directly from the jury’s verdict). In fact, if we were to conclude that the evidence here was insufficient to support the verdict, such a finding would be entitled to no deference by the reviewing court. United States v. Greer, 850 F.2d 1447, 1450 (11th Cir.1988); Burns, supra. Therefore, we apply the standard enunciated in United States v. Bell, 678 F.2d 547, 549 (5th Cir.1982) (Unit B, en banc), aff'd on other grounds, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983)— that is, the evidence need not be wholly inconsistent with every reasonable hypotheses except that of guilt, because the jury was free to choose among reasonable constructions of the evidence, as long as the evidence supports the jury’s conclusion that the defendant is guilty beyond a reasonable doubt. United States v. Alexander, 850 F.2d 1500, 1505 (11th Cir.1988). Moreover, this test is the same, whether applied to direct or circumstantial evidence because the law does not give greater weight to either type of evidence. United States v. Gonzalez, 719 F.2d 1516, 1521 (11th Cir.1983), cert. denied, 465 U.S. 1037, 104 S.Ct. 1312, 79 L.Ed.2d 710 (1984).

Inasmuch as the Defendant has conceded the existence of the conspiracy and the knowing participation of co-defendants Flores, Morales and Sanchez, our job is simply to decide whether the evidence, when combined with the inferences which can be drawn therefrom, was sufficient to permit the introduction of two sets of co-conspirators' statements, and, whether all of the evidence was sufficient to support the verdict. Bourjaily v. United States, 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987).

II.

A detailed explication of the facts elicited at trial is essential to the disposition of this issue. The story begins when Francisco Fumorala began working as an informant [1281]*1281for the Drug Enforcement Administration (DEA) in Madrid, Spain. Through a Bolivian, Fumorala was put in touch with Alfredo Sanchez. Fumorala and DEA Special Agent James Kibble flew from Madrid to Miami, where Fumorala met with Alfredo Marcelleno Sanchez. Sanchez represented that he knew people who could obtain cocaine for sale to persons known to Fumorala. When Fumorala related this conversation to Agent Kibble, Kibble encouraged Fumorala to arrange a cocaine transaction. The first negotiations failed and Kibble and Fumorala returned to Spain.

Further international telephone conversations between Sanchez and Fumorala took place soon thereafter, in December 1986. Fumorala, purporting to act as an intermediary for a Frenchman and an Englishman, discussed with Sanchez the possible purchase of a large quantity of cocaine — from 50 to 200 kilograms for $22,000 to $23,000 per kilo. Fumorala said he and the Englishman would fly to Miami. Sanchez agreed to pay for one airline ticket and Fumorala was to pay for the other one.

With hopes of consummating the cocaine deal, Fumorala and Agent Kibble, posing as an Englishman named Eddy Vaughn, again flew to Miami and were met at the airport by Sanchez. Agent Kibble rented a car and he and the informant took a room at the Fountainbleau Hotel, where they remained for the night.

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Bluebook (online)
708 F. Supp. 1279, 1989 U.S. Dist. LEXIS 2690, 1989 WL 24053, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-marrero-flsd-1989.