United States v. Cabrera ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v. Criminal Action No. ()4-446-49 (TFH)
ERMINSO CUEVAS CABRERA,
Also known as "Mincho,"
Defendant.
MEMORANDUM OPINION
Pending before the Court is defendant Errninso Cuevas Cabrera``s Motion F or A
Judgment Of Acquittal, Or, ln The Alternative, Motion For New Trial And Motion To Dismiss
[Docket No. 270]. The defendant contends that he is entitled to a judgment of acquittal pursuant
to Rule 29 of the F ederal Rules of Criminal Procedure on the grounds that the evidence proved at
trial impermissibly varied from the allegations in the indictment by establishing multiple
conspiracies rather than a single conspiracy, he was prejudiced by being joined with his co-
defendant at trial, and the government failed to present sufficient evidence to sustain his
conviction. In addition, the defendant asserts that he is entitled to a new trial pursuant to Rule 33
of the F ederal Rules of Criminal Procedure because the prosecutor made improper remarks
during closing arguments, the Court improperly denied his trial motions to sever and for a
mistrial, the Court improperly denied is pre-trial motions to sever, and his conviction was not
supported by the weight of the evidence. For the reasons set forth below, the Court will deny the
motions.
I. BACKGROUND
On March l, 2006, Erminso Cuevas Cabrera, who is also known as "Mincho," was
indicted with 50 other individuals and charged with unlawfully, intentionally, and knowingly
combining, conspiring, confederating and agreeing with others known and unknown to violate
the narcotics laws of the United States. (Indictment 11 l.) The objects of the alleged narcotics
conspiracy were (1) to import into the United States five kilograms and more of mixtures and
substances containing detectable amounts of cocaine and (2) to manufacture and distribute five
kilograms and more of mixtures, compounds and substances containing detectable amounts of
cocaine, and coca leaves, intending and knowing that these controlled substances would be
unlawfully imported into the United States. (Indictment 11 2.) To summarize, the indictment
specifically alleged the following:
The means and methods of the conspiracy entailed a structured and organized cocaine
manufacturing, production, supply and distribution system controlled by the Fuerzas Armadas
Revolucionarias de Colombia ("FARC"), which was described as a left-wing guerilla
organization that "has evolved into the world’s largest supplier of cocaine and cocaine paste.”
(Indictment 11 7.) The FARC is hierarchically organized and structured, with policies set by
the Secretariat, which consists of "the top seven leaders who are the ultimate decision makers
of the FARC," and the Estado Mayor, which is subordinate to the Secretariat but consists of
the members of the Secretariat plus 20 or so other members who are "Bloc Commanders,
senior Front Commanders, and other individuals who have attained leadership positions within
the FARC." (Indictment 1111 10-11.) The geographical areas of Colombia over which the
FARC exercises dominion are divided into Blocs or Joint Commands, which are further
subdivided into numbered "Fronts" or "Mobile Columns." (Indictment 1111 12, l5.) A Front
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is "primarily responsible for all activities in the geographic area [that] it controls, including all
activities relating to cocaine and cocaine paste manufacturing and distribution." (Indictment 11
12.) These Fronts and Mobile Columns are led by Front Commanders with the assistance of
Finance Officers who manage the Front’s financial interests, " including matters concerning
narcotics manufacturing and distribution." (Indictment 1111 12-13.)
According to the allegations in the indictment, the FARC relies on income from
cocaine trafficking to fund the organization’s activities and procure weapons. (Indictment
1111 14, 25, 27, 30, 31.) Because the FARC governs large geographic regions of Colombia
where coca growing and cocaine processing is prolific, over time it has exerted authoritarian
control and dominance over cocaine production and distribution in those regions and
established distribution networks to increase its revenues and facilitate cocaine’s importation
into the United States. (Indictment 1111 7-8, 12, 17-34.) The indictment alleges that the FARC
accomplishes this by establishing strict policies that govern cocaine production and distribution
and severely enforcing those policies, monopolizing the pricing and purchase of coca paste
from farmers who grow coca and convert it to cocaine paste, taxing all aspects of the cocaine
trade, running the laboratories that process cocaine paste into manufactured powder cocaine or
taxing independent laboratories that do so, setting the price at which cocaine is sold, building
and operating clandestine air strips to transport cocaine, and establishing distribution networks
to import cocaine into the United States. (Indictment 1111 4, ll, 12, 18-29.) The FARC’s
individual Fronts are responsible for financing themselves by managing the cocaine trade and
revenues for the region the Front oversees and then redistributing revenues and resources
throughout the FARC "to support other Fronts that generate[] smaller revenues from the
manufacture and distribution of cocaine paste and cocaine" and "for the enrichment of the
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Secretariat, Estado Mayor and Bloc Commanders, and in order to purchase weapons and
supplies for all members of the FARC." (Indictment 11 30.) The Fronts are aided in this
endeavor by associates "who work with the Fronts in the narcotics trade and who assist in the
manufacturing of cocaine and the exchange of cocaine for weapons." (Indictment 11 14.)
The indictment goes on to allege that the defendant was a FARC associate "who
managed cocaine laboratories for the FARC’s 14th Front, oversaw the production and
distribution of hundreds of thousands of kilograms of cocaine" and who "converted as much
as 2.5 tons of cocaine paste into cocaine approximately several times a month." (Indictment
1111 35(d), 35(d)(iii)). In addition, the defendant allegedly operated a cocaine laboratory that
was equipped by the FARC, received ton quantities of cocaine paste from the 14th Front’s
Finance Officer, converted ton quantities of cocaine paste in his laboratories and provided the
finished cocaine to drug transportation organizations identified by his brother, Jose Benito
Cabrera Cuevas, also known as "Fabian Ramirez," who was a member of the Estado Mayor,
regularly sent billions of Colombian pesos to the 14th Front’s Finance Officer to pay for
cocaine paste, and supplied ton quantities of FARC cocaine to an unindicted co-conspirator
who transported the cocaine from the defendant’s laboratory. (Indictment 1111 35(d)(i)-(vi).)
On September 20, 2007, the defendant was extradited from Colombia to the United
States to stand trial for the charged crimes. After the subsequent extradition and arraignment
of three co-defendants, as well as protracted pretrial proceedings in this complex international
criminal case, the trial of the defendant and co-defendant Juan Jose Martinez Vega began on
February 24, 2010. Because the defendant’s pending motions challenge the sufficiency of the
evidence at trial, in addition to other issues, a summary of the trial evidence is warranted.
The evidence at trial‘ established that Colombia became a leader in cocaine production
in the l990s, with production from the late l990s into the early 2000s increasing from about
25% to 60% of the world’s coca. (Trial Tr. PM Session 21-22, Feb. 24, 2010.) Colombia
produces between 500 and 600 metric tons of cocaine annually and is the "number-one coca
cultivator as well as the number-one producer of cocaine." (Trial Tr. PM Session 24, 30, 40,
Feb. 24, 2010.) The United States is the world’s largest cocaine consumer and approximately
90% of the cocaine consumed in the United States comes from Colombia. (Trial Tr. PM
Session 31, 42, Feb. 24, 2010.) The United States also is the predominant destination for
cocaine leaving Venezuela, which borders Colombia and through which cocaine is smuggled
from Colombia. (Trial Tr. P.M. Session 45-46, 62, Feb. 24, 2010 .)
Cocaine imported from Colombia arrives in the United States as a powder that is
formed into a kilogram-sized brick that is worth, on average, about $2,000 per kilogram when
ready for export in Colombia and about $30,000 in the United States. (Trial Tr. PM Session
24, 31, Feb. 24, 2010.) Colombian cocaine typically has been imported into the United States
via a secondary country because of transportation limitations and because narcotics traffickers
tend to seek areas of "weak law enforcement,” with "porous borders" that create a "path of
least resistance" when compared to direct shipment to the United States. (Trial Tr. PM
Session 24, 27, Feb. 24, 2010.) About 90% of the cocaine imported from Colombia into the
United States travels through Central America and Mexico, with the remaining 10% traveling
1 The Court cautions that this summary of the trial evidence is by no means
exhaustive and, instead, is primarily an abstract of the witness testimony. ln addition, both
Errninso Cuevas Cabrera and Juan Jose Martinez Vega filed post-trial motions seeking
judgments of acquittal or a new trial so, to the extent that trial evidence related to both
defendants, that evidence is summarized identically in this opinion and the opinion addressing
Martinez Vega’s motions.
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through Caribbean countries. (Trial Tr. PM Session 25, 27, 29, Feb. 24, 2010.) Because it is
more profitable to sell cocaine in the United States versus Mexico, and the demand is greater,
the vast majority of cocaine transported to Mexico from Colombia ultimately is imported into
the United States. (Trial Tr. Feb. 24, 2010 P.M. Session 36.) Virtually every mode of
transportation is used to transport cocaine from Colombia to the United States. (Trial Tr.
P.M. Session 32-35, 50-53, Feb. 24, 2010.)
The trial evidence also established that the Fuerzas Armadas Revolucionarias de
Colombia ("FARC") - a Marxist organization present almost everywhere in Colombia but
particularly in rural regions of the country - initially interjected itself into the cocaine trade by
extorting money from the farmers who grew coca and produced cocaine paste, as well as the
drug traffickers and operators of cocaine processing laboratories, each of whom had to pay a
tax to the FARC for the coca fields or for each kilogram of cocaine produced. (Trial Tr. PM
Session, 37-38, Feb. 24, 2010; Trial Tr. AM Session 21-22, Feb. 25, 2010; Trial Tr. PM
Session 45, Mar. 2, 2010; Trial Tr. AM Session 62, Mar. 4, 2010.) In the l990s, the FARC
began to purchase cocaine base itself and later set the price it was willing to pay. (Trial Tr.
AM Session 32, Mar. 2, 2010; Trial Tr. PM Session 63, Mar. 4, 2010.) As the FARC began
to appreciate the revenues generated by the cocaine trade and learned how to process cocaine,
it expanded its involvement to become a cocaine supplier, an operator of cocaine laboratories,
and to otherwise engage in typical cocaine trafficking activities that previously were the
domain of major cartels like the Medellin and Cali cartels. (Trial Tr. PM Session 38, Feb.
24, 2010; Trial Tr. AM Session 30-31, Mar. 2, 2010; Trial Tr. AM Session 64-65, Mar. 4,
2010.)
The trial evidence also established that the FARC is a hierarchical organization
governed by a Secretariat and the Estado Mayor. (Trial Tr. AM Session 24-25, Feb. 25,
2010; Trial Tr. PM Session 42-44, Feb. 25, 2010.) The FARC is divided into seven Blocs,
which are designated geographically, with the Eastern and Southern Blocs being the most
significant in terms of the production of illegal coca crops.z (Trial Tr. AM Session 27, 33,
Feb. 25, 2010.) Most Colombian cocaine is produced in the eastern or southern regions of the
country. (Trial Tr. PM Session 34, 37, Feb. 24, 2010.) The Blocs are further divided into
Fronts, which are the military units in each Colombian department. (Trial Tr. AM Session
24-25, 27, Feb. 25, 2010.) The FARC also consists of Mobile Columns that engage in
military actions against the Colombian government and Urban Fronts that operate in cities.
(Trial Tr. Feb. 25, 2010 A.M. Session 25-26.)
Within a Front there is a Finance Officer who is responsible for managing drug
trafficking and the Front’s money by collecting the cocaine taxes, resources, and coca base to
deliver to FARC superiors. (Trial Tr. AM Session 25, 28, Mar. 2, 2010; Trial Tr. AM
Session, 60, Mar. 4, 2010.) The Finance Officer buys or collects cocaine base from the farms
where coca is cultivated and cocaine paste manufactured, weighs the cocaine base, and then
pays the farmer if the farm was independently owned or simply collects it from the farms
operated by the FARC. (Trial Tr. AM Session 28-29, Mar. 2, 2010.) The FARC sets the
price for cocaine base and then buys it at that price from farmers. (Trial Tr. AM Session 32,
Mar. 2, 2010.)
2 The other Blocs consist of the Caribbean, Magdalena, and Jose Maria Cordova
Blocs, plus the Eastem Joint Command and the Central Joint Command. (Trial Tr. AM Session
27, 30-31, Feb. 25, 2010.)
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The FARC reached a pinnacle with respect to its expansion and the size of its
membership during the relevant period of the conspiracy charged in the indictment, namely
1998 to 2004, which also coincided with the designation of a demilitarized zone ("DMZ") for
peace talks from 1998 to 2002. (Trial Tr. AM Session 31-32, Feb. 25, 2010; Trial Tr. AM
Session 28, Mar. 1, 2010.) All the FARC Fronts were active in the DMZ. (Trial Tr. AM
Session 28, Mar. l, 2010.) During that time the FARC’s membership peaked at about 16,000
people. (Trial Tr. AM Session 21, Feb. 25, 2010.) The FARC’s warfare ammunition,
training, and food for personnel was funded by narcotics trafficking. (Trial Tr. AM Session
38, Mar. 1, 2010.)
The defendant’s brother, Jose Benito Cabrera Cuevas, also known as "Fabian
Ramirez," was the commander of the FARC’s Southern Bloc. (Trial Tr. Feb. 25, 2010 A.M.
Session 32.) The Southern Bloc included the 14th Front. (Trial Tr. AM Session 60, Feb. 25,
2010; Trial Tr. PM Session 8, Feb. 25, 2010; Trial Tr. PM Session 6, Mar. 10, 2010.)
Colonel Javier Mauricio Alvarez Ochoa from the Colombian National Police testified
as an expert about the production of cocaine base and cocaine hydrochloride and the history
and organization of the FARC. (Trial Tr. AM Session 20, Feb. 25, 2010.) Colonel Alvarez
explained the equipment needed to construct a cocaine base laboratory and the process to
manufacture cocaine base as well as the process to manufacture cocaine hydrochloride and the
higher costs involved in equipping a cocaine hydrochloride laboratory as compared to cocaine
base laboratories, (Trial Tr. AM Session 42-57, Feb. 25, 2010.) He also testified that he
conducted anti-narcotic operations in the 14th Front and, during those operations, discovered
coca crops, cocaine laboratories, illegal airstrips and cocaine complexes. (Trial Tr. AM
Session 59-62, Feb. 25, 2010; Trial Tr. PM Session 9, Feb. 25, 2010.) In addition, during an
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operation in the demilitarized zone in 2002, the Colombian National Police raided a FARC
cocaine laboratory that contained approximately seven tons of cocaine base and seven tons of
cocaine hydrochloride. (Trial Tr. PM Session 15-17, Feb. 25, 2010.)
Witness Maria Santiago testified that one of her brothers, who was a member of the
FARC, introduced her to the defendant after she said she would be willing to work at the 1
defendant’s cocaine laboratory, which processed powder cocaine. (Trial Tr. AM Session 43- 1
45, Mar. 1, 2010.) Maria Santiago said the defendant told her that she would be cooking 1
meals for the people working at his laboratory. (Trial Tr. AM Session 45, Mar. 1, 2010.) l
The defendant told Maria Santiago that she was not allowed to have any relationships with the 1
workers at the laboratory or to go to the town for six months. (Trial Tr. AM Session 46,
Mar. 1, 2010.) Maria Santiago testified that workers at the cocaine laboratory said the
laboratory belonged to the defendant and his brother, Fabian Ramirez. (Trial Tr. AM Session
59, Mar. 1, 2010; Trial Tr. PM Session 57-58, Mar. 1, 2010 (confirming that she consistently
told United States agents and prosecutors that the defendant was the "boss" of the laboratory).)
She also said that one of the defendant’s other brothers, Mr. Casicura, would manage the
cocaine laboratory when the defendant was away. (Trial Tr. AM Session 47-48, 50, Mar. 1,
2010.)
Maria Santiago identified the defendant and said she worked at his cocaine laboratory
for about three months and never left during that time. (Trial Tr. AM Session 42, 60, Mar. 1,
2010.) She described the laboratory, which she said was big, and her responsibilities as the
cook preparing food for approximately 80 laboratory workers. (Trial Tr. AM Session 51-54,
Mar. 1, 2010.) She also described the cocaine process that she witnessed while working at the
defendant’s laboratory and said that cocaine would come into the laboratory anywhere from j
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two or three times per week to three or four times a month. (Trial Tr. AM Session 54, Mar.
l, 2010.) Maria Santiago testified that the defendant would arrive at the laboratory by speed
boat with other men, would meet with Mr. Casicura and others in a room, always carried a
pistol with him, and would be present at the laboratory when a lot of work was being done,
such as when 2,000 to 5,000 kilograms of cocaine arrived to be processed. (Trial Tr. AM
Session 55-56, 58, 59, Mar. l, 2010.) She said it was no secret that these quantities were
coming into the laboratory. (Trial Tr. AM Session 55-56, Mar. 1, 2010.) She said the coca
would arrive at the laboratory in "loose form" and then would be processed into powder
cocaine bricks that were dried, packaged, wrapped in plastic and transported out of the
laboratory. (Trial Tr. AM Session 57, Mar. l, 2010.) She also testified that Mr. Casicura
took her to a storage area away from the laboratory where processed cocaine was stored and
protected by armed guards. (Trial Tr. AM Session 59-60, Mar. 1, 2010.) Maria Santiago
said she heard workers discussing the fact that the cocaine from the defendant’s laboratory was
destined for the United States. (Trial Tr. AM Session 60, Mar. l, 2010.)
Witness Hernan Santiago was a former member of the FARC’s 14th Front while
Fabian Ramirez was the head of the front and Anayibe Valderrama, also known as "Sonia,"
was the Finance Officer. (Trial Tr. PM Session 48-49, Mar. 2, 2010.) Hernan Santiago
testified that he piloted a speed boat that transported money Sonia Valderrama provided to buy
cocaine base from peasants and then he transported the purchased cocaine base to a central
location in Penas Coloradas. (Trial Tr. PM Session 51, 53, 55, Mar. 2, 2010; Trial Tr. AM
Session 17, Mar. 3, 2010.) He stated that the FARC delegated three people to go to each
town to purchase coca from the peasants and he was one of the three people. (Trial Tr. AM
Session 17, Mar. 3, 2010.) He testified that an average town would produce 200-300
kilograms of cocaine base for each purchase. (Trial Tr. AM Session 19, Mar. 3, 2010.) All
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the purchased cocaine base would be brought to Penas Coloradas where it would be piled up
and weighed at night to avoid detection. (Trial Tr. AM Session 19, Mar. 3, 2010.) He
explained that he typically traveled with two other men to a buying location and two or three
FARC guerillas would provide security for the money, which would be packaged in amounts
of 10, 20 or 50 million Colombian pesos. (Trial Tr. PM Session 51-53, Mar. 2, 2010.) The
amount of money depended on the amount of cocaine base that would be purchased, which
averaged about 250-300 kilograms per week. (Trial Tr. PM Session 54, Mar. 2, 2010.)
Hernan Santiago testified that the FARC set the price for cocaine base and the farmers
could not negotiate or they would be punished, nor could the farmers sell to anyone other than
the FARC. (Trial Tr. PM Session 54, Mar. 2, 2010.) The FARC had checking stations on
the margins of the river to ensure that farmers did not sell cocaine base to anyone other than
the FARC. (Trial Tr. PM Session 54, Mar. 2, 2010.) When cocaine base was purchased
from the farmers the FARC buyers would place a paper in the sacks that identified the
farmer’s family name and location to deter the farmers from adding things to the sacks to
make them weigh more. (Trial Tr. PM Session 55, Mar. 2, 2010.) The FARC buyers also
would test each sack of cocaine base to determine whether it contained any additives, weigh it
again and then repackage it. (Trial Tr. PM Session 55, Mar. 2, 2010; Trial Tr. AM Session
18, Mar. 3, 2010.)
Heman Santiago identified the defendant and testified that the defendant managed the
laboratories where cocaine "crystal"3 was produced. (Trial Tr. PM Session 56-57, Mar. 2,
2010.) He said that the defendant’s laboratory was bought by the FARC guerillas but that the
defendant was the "boss" of the laboratory. (Trial Tr. AM Session 37, Mar. 3, 2010.) He
3 Witness Femey Tovar Parra, irifra, testified that cocaine hydrochloride is referred
to as "crystal cocaine" in Colombia. (Trial Tr. AM Session 39, Mar. 23, 2010.)
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said he visited the laboratory "on occasion" but could not stay because the laboratory was
clandestine and boats would reveal its location. (Trial Tr. AM Session 37, Mar. 3, 2010.) He
described the equipment he saw at the defendant’s laboratory and the general layout of the
structures. (Trial Tr. AM Session 39, Mar. 3, 2010.)
Hernan Santiago testified that he first met the defendant in 1998 when he and Sonia
Valderrama delivered cocaine base to Penas Colaradas and the defendant arrived by speed boat
with two or three uniformed FARC guerillas to review the notebook Sonia had that
documented the amount of delivered cocaine base. (Trial Tr. AM Session 16, Mar. 3, 2010.)
He said the defendant was dressed in civilian clothing but carried a handgun and a short-wave
radio. (Trial Tr. AM Session 20, Mar. 3, 2010.) According to Hernan Santiago, the
defendant "came to the table where [the cocaine base] had been weighed, and the accounts
been done, and he reviewed Sonia’s notebook regarding how much had come from each
town.” (Trial Tr. AM Session 20, Mar. 3, 2010.) He testified that the defendant "[t]hen . . .
took [the cocaine base] to a [cargo] boat where it was loaded pre-dawn to be taken towards the
Sunsiya [river]." (Trial Tr. AM Session 20, Mar. 3, 2010.) Hernan Santiago said that he
helped load the cocaine base onto the cargo boat. (Trial Tr. AM Session 21, Mar. 3, 2010.)
He also said that, if the cargo boat failed to arrive to transport the cocaine base, the cocaine
base would be moved further into the jungle and guarded until the defendant communicated
with Sonia Valderrama to order that the cocaine base be transported to the defendant’s
laboratory. (Trial Tr. AM Session 39-40, Mar. 3, 2010.)
Hernan Santiago further testified that when the cocaine base was brought to Penas
Coloradas, Sonia Valderrama, her brother and a third person would weigh and test the cocaine
base and the defendant would comment about the testing process by saying that they "had to
be very careful to make sure [the cocaine base] was absolutely dry and to be very careful with
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the cutting agents." (Trial Tr. AM Session 22, Mar. 3, 2010.) Each time Hernan Santiago
saw the defendant "he would go to review the notebooks with Sonia about the amounts,"
although he also noted that the defendant and Sonia sometimes communicated by radio. (Trial
Tr. AM Session 23, Mar. 3, 2010.) Hernan Santiago said he saw the defendant weekly over a
three to four-year time period when "[t]here would be weekly purchases made and deliveries
of the cocaine" and the same weighing, testing and repackaging of the cocaine base would take
place. (Trial Tr. AM Session 24-25, Mar. 3, 2010.) He stated that "[m]ost of the time [the
defendant] was there at pre-dawn to review the notebook” and "[a]lways at dawn when the
boat was to be loaded." (Trial Tr. AM Session 25, Mar. 3, 2010.) He also stated that, at
one point, the defendant "was telling Sonia that Fabian [Ramirez] was demanding that the
testing be done more thoroughly, because it was lowering - decreasing the cocaine in the lab.
So they had to test much more carefully to verify for water and impurities." (Trial Tr. AM
Session 32, Mar. 3, 2010.)
Heman Santiago also explained that sometimes there were problems purchasing cocaine
base because the FARC’s money would be in United States dollars that had not been converted
to Colombian pesos, which was the currency needed for cocaine base purchases. (Trial Tr.
AM Session 26, 32, Mar. 3, 2010.) He said that when there were only United States dollars
available they would give the peasants IOUs for cocaine base. (Trial Tr. AM Session 35 , Mar.
3, 2010.) He said he saw United States dollars packed in boxes and there was "a lot of talk"
at night about where the dollars came from and “[t]hat the Americans were angry at the
organization because we were bringing over dollars for drugs." (Trial Tr. AM Session 33,
Mar. 3, 2010.) He went on to state that "[i]t was even said that the Americans were pursuing
the coke because it could not be cultivated or harvested in the United States" and "[o]nce it
was said that the gringos were always mad because of the drugs, because we brought the drugs
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up there, and because they had - and most of them have plastic noses from sniffing it so
much." (Trial Tr. AM Session 34, Mar. 3, 2010.) Hernan Santiago said that the importation
of cocaine to the United States was a common topic of conversation at the meetings to weigh
and test the cocaine base and that "[w]e were once talking about that subject when [the
defendant] arrived in the morning." (Trial Tr. AM Session 34, Mar. 3, 2010.)
Witness Alexis Perez testified that he was a FARC guerilla who worked for the 43rd
Front, the general staff of the Eastern Bloc, as a guard for Mono JoJoy," and then he was
assigned to the Juan Jose Rondon Mobile Column. (Trial Tr. PM Session 6, Mar. 10, 2010.)
Perez testified that while he was part of the Mobile Column he traveled to the 14th Front in
2002 with Ricuate, a commander of the 14th Front, and Urias, the commander the Mobile
Column. (Trial Tr. PM Session 6, Mar. 10, 2010.) Perez identified the defendant and said
he met the defendant while he was traveling in the 14th Front with Ricaute and Urias, (Trial
Tr. PM Session 6, 7, 8, Mar. 10, 2010.) Perez said that they arrived at a house in Guayabal
where the defendant introduced himself and greeted them. (Trial Tr. PM Session 7, Mar. 10,
2010.) Perez said he saw cocaine in the house where "they were conducting activities that
began with the testing and working with the coca." (Trial Tr. PM Session 7, Mar. 10, 2010.)
Perez testified that, at that time, the defendant "was taking down the accounts of what seven
people that were working there were telling him; that is, he kept a record of what these people
were telling him that the drug or the coke weighed" and "[t]hey were doing the process of
testing the drug and weighing the drug." (Trial Tr. PM Session 9, Mar. 10, 2010.) He
explained that:
4 Mono JoJoy was a commander of the FARC’s Eastem Front. (Trial Tr. PM
Session 44, Feb. 25, 2010.)
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They were conducting this activity which was weighing the drugs, which is the
control they exercise in the area over the purchase of it, from the peasants. This
is done so that farmers don’t get to add anything to it, something we call additives
in Colombia.
So the drugs are accompanied with the name of the farmer that sold it to the
guerillas. So this is what they were more or less doing at this location and -
because observed it for about 30 minutes [sic].
(Trial Tr. PM Session 8, Mar. 10, 2010.) Perez further stated that he could see the drugs and
there were about 2,000 kilograms of cocaine base in the house that day. (Trial Tr. PM
Session 9, Mar. 10, 2010.) The following day, the cocaine base was loaded onto a boat in the
defendant’s presence and then the boat headed down the river. (Trial Tr. PM Session 10,
Mar. 10, 2010.)
Perez testified that the following week he accompanied Ricaute to a cocaine laboratory
where the defendant greeted them again. (Trial Tr. PM Session 10, Mar. 10, 2010.) Perez
described the laboratory as one that produced “crystal" cocaine, which he described as a
"much more sophisticated" laboratory that had an electricity generator, "many ovens," and
"[t]hat day, there were many people working there." (Trial Tr. PM Session ll, Mar. 10,
2010.) He also stated that the laboratory "had a smell of ammonia and sulfur, and you know
by those smells that it is a coke lab." (Trial Tr. PM Session 13, Mar. 10, 2010.) When asked
what the defendant was doing, Perez responded that "[i]n a moment there, three speedboats
arrived, loaded with drugs. And he gave them instructions. He gave instructions to the pilots
that they could leave, telling them that they were waiting for them, that the landing strip was
waiting." (Trial Tr. PM Session ll, 54, Mar. 10, 2010.) Perez said he knew crystal cocaine
was on the boats because he recognized the packaging and "[w]hat that lab does is coca, so it
was loaded with coca." (Trial Tr. PM Session 12, Mar. 10, 2010.) He testified that he was
certain the boats contained cocaine "because ever since I was small, I was - I would harvest
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coca leaves. So 1 know how the coca is processed. I know the smell. I know how it is
packaged. So it is very easy to tell that is was coke." (Trial Tr. PM Session 53, Mar. 10,
2010.) He also said that "[t]here were about 700 kilos in each of the speedboats, because that
is about the weight that these kind of boats can carry, because I was also a pilot for these kind
of boats." (Trial Tr. PM Session 12, Mar. 10, 2010.)
Perez said that " in most of the fronts where I was, coca is grown” and "in the fronts,
there was always coke activity." (Trial Tr. PM Session 15, Mar. 10, 2010.) He also said
that it was "something normal" to hear members of the FARC commenting "that the coke was
coming to the United States because it said that it is the country that most consumes it." (Trial
Tr. PM Session 21, Mar. 10, 2010.) Perez testified that Mono JoJoy said during a meeting at
a training school "that the cocaine was all coming to the United States." (Trial Tr. PM
Session 23, Mar. 10, 2010.) Perez explained that this statement was made while the guerillas
"were receiving instructions, military instructions and political economics." (Trial Tr. PM
Session 23, Mar. 10, 2010.) According to Perez, Mono JoyJoy said "[t]hat the drug was
going to the United States to make them go crazy, because that is the policy, that is the image
that is portrayed in the FARC." (Trial Tr. PM Session 24, Mar. 10, 2010.)
Witness Ferney Tovar Parra testified that he was never a member of the FARC but he
knew the defendant’s brother, Fabian Ramirez, since 1981 when Ramirez joined the FARC.
(Trial Tr. AM Session 30, Mar. 23, 2010.) Tovar said that he performed errands for Ramirez
in 1996 and, as a result of working for Ramirez, Tovar established a friendship with
Ramirez’s brother, the defendant. (Trial Tr. AM Session 30, Mar. 23, 2010.) Tovar
explained that his role working for Ramirez changed after 1996 because "Ramirez began to set
in motion a plan or a project where he would concentrate all of the drug trafficking business in
his own hands." (Trial Tr. AM Session 31, Mar. 23, 2010.) Tovar testified that Ramirez
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told him that "the profits derived from all of this business from the drug trafficking was being
pocketed by the drug traffickers, and these were moments when the FARC found itself in a
critical situation with many needs, and that is why he initiated it." (Trial Tr. AM Session 31,
Mar. 23, 2010.) Ramirez told Tovar that the details of the plan "consisted of one, to
concentrate the production of the cocaine in his own hands; and two, then to sell for cocaine -
the cocaine base after getting production of the upper, middle and lower Caguan, the
production of the peasantry in those areas." Tovar aid that "Fabian Ramirez decided that he
would make Penas Coloradas on the Caguan River the epicenter of all of his activities.” (Trial
Tr. AM Session 29, Mar. 23, 2010.)
Tovar said that the first phase of Ramirez’s plan involved establishing a monopoly over
all the production of cocaine base from the peasants and farmers in the area. (Trial Tr. AM
Session 32, 33, Mar. 23, 2010.) To accomplish this Ramirez designated the FARC’s militia
to collect cocaine base from the peasants and he demanded the highest quality cocaine base
that was free of humidity and "dirt." (Trial Tr. AM Session 32, Mar. 23, 2010.) As a result,
Tovar testified, the purity of the cocaine base was so improved that it "led to a rise in the
price of the cocaine base." (Trial Tr. AM Session 31, Mar. 23, 2010.) According to Tovar,
Ramirez "was so successful in obtaining this that the drug traffickers themselves were known
to say that the cocaine base was . . . [t]he best in the Caguan - the cocaine base was the best
in Colombia." (Trial Tr. AM Session 32, Mar. 23, 2010.)
Tovar said that "the second phase was the marketing phase. And based on the fact that
the quality of the cocaine base had been improved, Caguan River was overrun by buyers of
cocaine." (Trial Tr. AM Session 34, Mar. 23, 2010.) Tovar explained that, at that time,
there were two laboratories in the area that processed cocaine hydrochloride so Ramirez "put
an end to their activities and set up his own laboratory." (Trial Tr. AM Session 34, Mar. 23,
2010.) When he was asked who Ramirez put in charge of the laboratory, Tovar responded:
Well, for this great responsibility - this great responsibility he assigned to his
brother, Erminso Cuevas Cabrera, and he made him - he named him the general
administrator of the laboratory, and he set up the laboratory in Monte Adentro,
which is 15 to 20 minutes away from Penas Coloradas on the Caguan River.
(Trial Tr. AM Session 34, Mar. 23, 2010.) Tovar said the defendant was "the brother most
loved by Fabian Ramirez” and that Ramirez gave his child to the defendant to raise. (Trial
Tr. AM Session 35, 36, Mar. 23, 2010.)
In 1999, Ramirez met with Tovar, the commander of the FARC’s Western Bloc, and
another drug trafficker and told them that the FARC’s Secretariat had named Ramirez to be a
leader to provide training to the Finance Officers in the different Blocs to implement the same
policies Ramirez established regarding cocaine trafficking in the Caguan region. (Trial Tr.
AM Session 58, Mar. 23, 2010.) Ramirez also told them that "he had been promoted to
become a member of the Central High Command of the FARC . . . and he told us [as] a point
of pride that he had been promoted within the FARC hierarchy." (Trial Tr. AM Session 58,
Mar. 23, 2010.) Ramirez explained that "[t]he guidance he was providing was the same for
all of the leaders of the different blocks [sic]. The idea was for them to implement this
strategy whereby the FARC would take this drug trafficking business into their own hands, not
allowing the drug traffickers to come into FARC-controlled areas any more and impose their
own sets of command." (Trial Tr. AM Session 59, Mar. 23, 2010.)
Tovar testified that he visited the defendant’s laboratory twice and he described the
location and layout of the houses where the defendant, Sonia Valderrama, and Fabian Ramirez
stayed. (Trial Tr. AM Session 36-37, Mar. 23, 2010.) The first time he visited the
laboratory he did so at the behest of Ramirez, who called Tovar and requested that he bring a
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roll of black plastic tarp and then told him to deliver the tarp to the defendant at the
laboratory. (Trial Tr. AM Session 37, Mar. 23, 2010.) When Tovar delivered the tarp he
observed "[p]eople working, processing coca" and he said that the defendant was there, (Trial
Tr. AM Session 37, Mar. 23, 2010.)
The second time Tovar visited the laboratory was late in 1998 when he was acting "as
a marketing agent for this new drug trafficking project" initiated by Ramirez. (Trial Tr. AM
Session 38, 39, 43, Mar. 23, 2010.). Tovar said his "role in this new drug trafficking policy
of the FARC was to sell this policy to the drug traffickers." (Trial Tr. PM Session 47, Mar.
23, 2010.) At that time, Tovar introduced Ramirez to Jota, who was a Brazilian drug
trafficker interested in obtaining 2,240 kilograms of cocaine hydrochloride for export to
Brazil. (Trial Tr. AM Session 39, Mar. 23, 2010.) Ramirez agreed to provide the cocaine
hydrochloride from the defendant’s laboratory. Jota later sent a representative who, along
with Tovar, went to the laboratory to oversee the first "load" of 320 kilograms of cocaine
hydrochloride. (Trial Tr. AM Session 41, Mar. 23, 2010.) While they were at the laboratory
they ate breakfast with the defendant. (Trial Tr. AM Session 41, Mar. 23, 2010.) Tovar said
that the defendant’s laboratory produced all 2,240 kilograms of cocaine hydrochloride, which
Tovar transported by boat to an air strip for shipment to Brazil. (Trial Tr. AM Session 42,
Mar. 23, 2010.)
Tovar also represented Ramirez in a deal with a Norte el Valle cartel trafficker who
"needed 4000 to 5000 kilograms of cocaine to send per month to the United States, crystal."
(Trial Tr. AM Session 44, Mar. 23, 2010.) Tovar told the Norte el Valle cartel trafficker
"not to worry, that per week 3000 to 4000 kilos of cocaine base was produced each week, and
1 told him that there was a laboratory that existed that belonged to Mr. Fabian [Ramirez], and
that it was responsibly managed by his brother, Mincho, and l also told him there was an
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airstrip." (Trial Tr. AM Session 44, Mar. 23, 2010.) When asked whether any of the FARC
leaders above Ramirez were aware of the deal to move 4,000 to 5,000 kilograms of cocaine
per month to the United States, Tovar responded:
[D]uring that time period, Mr. Fabian Ramirez was the second in command of the
southern block [sic] of the FARC. The main commander was known as Joaquin
Gomez. And Mr. Ramirez would tell me, for this kind of business, which was
such a large scale, everything had to be consulted with the commander who was
Joaquin Gomez.
(Trial Tr. AM Session 46, Mar. 23, 2010.) Although "[t]he operation was frustrated," Tovar
testified that the defendant’s laboratory had the capacity to produce 4,000 to 5,000 kilograms
of cocaine per month. (Trial Tr. AM Session 49, Mar. 23, 2010.)
In 2000, Tovar assisted Ramirez to sell 560 kilograms of cocaine that were left over
from a deal that involved sending 1,000 kilograms of high-purity cocaine to the United States.
(Trial Tr. AM Session 60-61, Mar. 23, 2010.) The deal experienced setbacks that resulted in
only 440 kilograms actually being sent to the United States. (Trial Tr. AM Session 6l, Mar.
23, 2010.) Tovar helped sell the 560 kilogram overage to another drug trafficker. (Trial Tr.
AM Session 62, Mar. 23, 2010.)
During part of his testimony Tovar explained how cocaine was delivered to him from
the defendant’s laboratory. Tovar said that Sonia Valderrama was the Finance Officer of the
14th Front during this time period and "Erminso [the defendant] would send the drugs to
Sonja [sic], who then in turn would store them, and then she would send them to Boris or
Jimmy, men who were her trusted - who were trusted by Sonja [sic], who would then deliver
them to me." (Trial Tr. AM Session 53, Mar. 23, 2010.) Tovar stated that "the drugs left
[the defendant’s laboratory] immediately, because one of the security measures was that they
be moved immediately in case there should be a military operation carried out by the
Colombian military authorities, and thus they would avoid - they would avoid having the
drugs seized at the laboratory." (Trial Tr. AM Session 52, Mar. 23, 2010.)
Tovar also testified that he handled large amounts of United States currency for
Ramirez, such as in 1999 when he delivered $330,000 to Sonia Valderrama for Ramirez.
(Trial Tr. AM Session 55, Mar. 23, 2010.) He also said that, in 2000, he delivered $550,000
to Ramirez that were proceeds from a transaction made at Sonia Valderrama’s house that
resulted in 1,000 kilograms of cocaine - "cooked in Mr. Erminso’s [the defendant’s] kitchen"
- being exported to Suriname. (Trial Tr. AM Session 56, 57, Mar. 23, 2010.) Tovar said he
handed the money over to Ramirez in front of the defendant’s laboratory and that the
defendant was there "and he said that is good business. Show me the money." (Trial Tr. AM
Session 56, Mar. 23, 2010.) The defendant also was present when they counted the money.
(Trial Tr. AM Session 56, Mar. 23, 2010.)
In 2004, when Ramirez returned to the Caguan region after a two-year absence, he met
with Tovar and the defendant to discuss retaking control of drug trafficking in the region,
which had been diminished by the Colombian government’s military presence. (Trial Tr. AM
Session 62-63, Mar. 23, 2010.) Tovar said that during the meeting Ramirez:
[A]sked us, Mr. Mincho and myself, who were completely trusted by him to help
reactivate drug trafficking along the Caguan River, and he delegated us roles. Mr.
Mincho was given the role of going to Bogota, which was not a problem for him,
to make contact with drug traffickers, to either ask for a loan of money, or for
them to come down to meet him in person, as a way of reactivating the drug
trafficking again.
(Trial Tr. AM Session 63, Mar. 23, 2010.) Tovar testified that the defendant traveled to meet
with the drug traffickers in a place near Bogota and Tovar talked to the defendant by phone
and conveyed to Ramirez "how the management of the situation was going between Mr.
Mincho and the drug traffickers." (Trial Tr. AM Session 64, Mar. 23, 2010.) Recordings of
__p_j__
conversations between the defendant and Tovar, during which they discussed the defendant’s
efforts to meet with drug traffickers and the traffickers’ reluctance to agree to a loan, were
admitted into evidence during the trial. (Trial Tr. AM Session 65-73, Mar. 23, 2010; Trial
Tr. PM Session 3-10, Mar. 23, 2010.) The defendant was arrested several weeks after the
recorded conversations took place. (Trial Tr. PM Session 10, Mar. 23, 2010.)
Tovar concluded his testimony by stating that the defendant "had maximum
responsibility" for manufacturing cocaine for the 14th Front and he was "[t]he only person
with that level of responsibility." (Trial Tr. PM Session 29, Mar. 23, 2010.)
The trial took nearly six weeks and ended with the jury returning a guilty verdict
against both the defendant and Martinez Vega on April 13, 2010. The defendant now seeks to
have the Court set aside the jury verdict against him and enter a judgment of acquittal or,
alternatively, grant him a new trial or dismiss the indictment,
II. MOTION FOR A JUDGMENT OF ACQUITTAL
Rule 29 of the Federal Rules of Criminal Procedure authorizes a court to set aside a
guilty verdict and enter a judgment of acquittal in response to a defendant’s timely motion.
Fed. R. Crim. P. 29(c)(l)-(2). When considering a motion for acquittal, the Court determines
whether "viewing the evidence in the light most favorable to the Government, according the
Government the benefit of all legitimate inferences, and recognizing that it is the jury’s
province to determine credibility and to weigh the evidence, a reasonable jury must necessarily
entertain a reasonable doubt on the evidence presented." United States v. Singleton, 702 F.2d
1159, 1163 (D.C. Cir. 1983) (Tamm, J.) (emphasis in original). "If the evidence reasonably
permits a verdict of acquittal or a verdict of guilt, the decision is for the jury to make. "
Curley v. United States, 160 F.2d 229, 237 (D.C. Cir. 1947) (Prettyman, J.).
__22_-
A. Variance
The defendant first claims that the evidence proved at trial impermissibly varied from the
allegations in the indictment by establishing multiple conspiracies rather than a single
conspiracy. (Def.’s Mot. for Acquittal 5-8.) According to the defendant, the trial evidence
proved the following multiple conspiracies: (1) "[a]n alleged conspiracy to manufacture and
distribute cocaine involving numerous drug traffickers;" (2) "[a]n alleged conspiracy to
manufacture and distribute cocaine, intending or knowing that such cocaine would be imported
into the United States, involving Fabian Ramirez, Ferney Tovar Parra, and . . . Cesar
Augusto Perez Parra;" (3) "[a]n alleged conspiracy to distribute cocaine, intending or knowing
that such cocaine would be imported into the United States, Suriname, Africa, Mexico;" (4)
"[a]n alleged conspiracy to manufacture and distribute cocaine, involving Fabian Ramirez and
right-wing paramilitary organizations in Colombia;" and (5) "[a]n alleged conspiracy to
overthrow the government of the Republic of Colombia involving the FARC." (Def.’s Mot.
for Acquittal 7-8.) The defendant asserts that he was prejudiced by the variance between the
indictment’s single charged conspiracy and the multiple conspiracies he claims were proven at
trial because he "[e]ssentially . . . was tried for felonies not contained within his indictment, in
violation of the Fifth Amendment" and "his Sixth Amendment right to be informed of the nature
of the accusations against him was also violated.” (Id. at 8.) The defendant also complains that
the variance prevented him from adequately preparing his defense and resulted in evidence
against his co-defendant, Juan Jose Martinez Vega, "spilling over" and being transferred to
the defendant. (Ia’.)
A judgment of acquittal is warranted based on a variance between the allegations in the
indictment and the proof at trial if the defendant shows that (1) the trial evidence established
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facts that varied materially from the indictment’s allegations and (2) the variance caused
substantial prejudice. United States v. Celis, 608 F.3d 8l8, 845 (D.C. Cir. June 18, 2010)
(per curiam). "In a conspiracy prosecution, for example, the appellant may prove (1) that the
evidence established the existence of multiple conspiracies, rather than the one conspiracy
alleged in the indictment, and (2) that because of the multiplicity of defendants and
conspiracies, the jury was substantially likely to transfer evidence from one conspiracy to a
defendant involved in another." United States v. Tarantino, 846 F.2d 1384, 1391 (D.C. Cir.
1988) (per curiam) (intemal citations omitted). When considering whether the evidence
established the existence of multiple conspiracies versus a single conspiracy, "we must view
‘the evidence in the light most favorable’ to the government, asking ‘whether any rational trier
of fact could have found the essential elements of [conspiracy] beyond a reasonable doubt."’
United States v. Carson, 455 F.3d 336, 375 (D.C. Cir. 2006) (per curiam) (quoting United
States v. Graham, 83 F.3d 1466, 1471 (D.C. Cir. 1996) (Tatel, J.) (emphasis and alteration in
original)). lt is well established, however, that "[t]he verdict must be upheld if the evidence
adequately supports a finding that a single conspiracy existed." Ia'. Ultimately, "[t]he true
inquiry . . . is not whether there has been a variance in proof, but whether there has been such
a variance as to ‘affect the substantial rights’ of the accused." Berger v. United States, 295
U.S. 78, 82 (1935) (Sutherland, J.).
In narcotics cases like this one, "[a] single conspiracy may be established when each
conspirator knows of the existence of the larger conspiracy and the necessity for other
participants, even if he is ignorant of their precise identities." Ia'. In such cases, a "single
conspiracy is proven if the evidence establishes that each conspirator had the specific intent to
further the common unlawful objective." Id. Furthermore, "a single conspiracy can ‘pursue
multiple schemes with different modi operandi without dividing into multiple conspiracies, as
__24-_
long as there is a single objective."’ United States v. Brockenborrugh, 575 F.3d 726, 737
(D.C. Cir. 2009) (Griffith, J.) (quoting United States v. Hemphi'll, 514 F.3d 1350, 1364 (D.C.
Cir. 2008) (Brown, J.)). "Whether a course of conduct should be classified as a single
conspiracy or divided into multiple conspiracies depends on whether the participants shared a
common goal, were dependent upon one another, and were involved together in carrying out
at least some parts of the plan," id., although overlap among alleged participants is "less
significant," Graham, 83 F.3d at 1471.
Viewing the evidence in the light most favorable to the government, the Court finds
that it adequately supports a finding by a rational trier of fact that a single conspiracy existed
to import five kilograms and more of cocaine into the United States and manufacture and
distribute five kilograms and more of cocaine knowing and intending that the cocaine would be
unlawfully imported into the United States. As summarized above, the trial evidence showed
that, beginning in the late l990s and continuing through the early to mid 2000s, the FARC
occupied large regions of Colombia and took over all aspects of cocaine trafficking in those
regions by monopolizing the purchase of cocaine base from peasants and farmers, establishing
policies and procedures to increase the purity of the cocaine base, processing the cocaine base
into cocaine hydrochloride at its own laboratories, and then establishing a distribution network
through narcotics traffickers to sell the cocaine in the United States for profit. Notably,
witnesses testified that it was commonly known and discussed among the conspiracy
participants at all levels, from the FARC’s leadership and commanders to the workers in the
cocaine laboratories, that cocaine the FARC was manufacturing and distributing was destined
for the United States.
In the 14th Front, which included the region around the Caguan River, Fabian Ramirez
furthered the FARC’s efforts to dominate the cocaine trade and increase its revenues by
__25--
shutting down private cocaine hydrochloride laboratories and setting up his own laboratory
that was operated by his brother, the defendant. Witnesses offered testimony that confirmed
and corroborated that: the defendant operated the large cocaine laboratory where cocaine base
was processed into cocaine hydrochloride; was present when thousands of kilograms of
cocaine base were being weighed and tested at Penas Coloradas; would review and make an
accounting of the cocaine base when the 14th Front’s Finance Officer was weighing, testing
and repackaging it for shipment to the defendant’s laboratory; directed the Finance Officer that
Ramirez wanted the testing to be done more thoroughly; supervised loading the cocaine base
onto boats for transport to his laboratory; instructed the pilots of speed boats about where to
transport the cocaine for a transaction; produced thousands of kilograms of cocaine
hydrochloride weekly for deals arranged between Ramirez and narcotics traffickers, including
deals that involved shipping cocaine to the United States; and arranged meetings with narcotics
traffickers at Ramirez’s behest in an effort to revitalize the cocaine trade in the Caguan River
region at a time when activity had slowed because of the Colombian military’s activities there.
Significantly, the trial evidence established a virtually seamless and dependent
relationship between the defendant and at least two of the FARC’s leadership - Fabian
Ramirez and Sonia Valderrama - with respect to the conspiracy’s goal of violating United
States narcotics laws by importing cocaine into the United States and manufacturing and
distributing cocaine knowing and intending that it would be imported into the United States.
In the final analysis, the trial evidence revealed that it was of no real consequence that the
defendant was not an official member of the FARC because he nevertheless was quite integral,
integrated and involved in the FARC’s efforts to monopolize and profit from the cocaine trade
in the regions it controlled, such as the 14th Front, The defendant and the other conspiracy
participants shared a common purpose to further the conspiracy’s goals and were dependent on
__26__
each other to accomplish them. The FARC could not profit from the cocaine trade without
monopolizing the market for cocaine base in the geographic areas it occupied, which was an
effort that Sonia Valderrama supervised for the 14th Front and the defendant participated in by
reviewing and accounting the weighing and testing of the cocaine base. The FARC could not
realize the profitability of the cocaine base in the 14th Front without the defendant’s laboratory
processing it into cocaine hydrochloride and the defendant working with his brother, Fabian
Ramirez, and narcotics traffickers to market it. lt is well established in this jurisdiction that:
[W]hile proof of conspiracy requires proof of an agreement, the jury may infer this
agreement from the defendant’s knowing participation in a distribution network
organized along division of labor principles-in which his own role necessarily
depends on the cooperation of other parties to that network: "The existence of such
a vertically integrated, loose-knit combination may raise the inference that each
conspirator has agreed with the others (some whose specific identity may be
unknown) to further a common unlawful objective, e.g., the distribution of
narcotics. "
United States v. Childress, 58 F.3d 693, 710 (D.C. Cir. 1995) (per curiam) (quoting
Tarantino, 846 F.2d at 1393)). See also United States v. Aguecl``, 310 F.2d 817, 827 (2d Cir.
1962) (Kaufman, J.) ("An individual associating himself with a ‘chain’ conspiracy knows that
it has a ‘scope’ and that for its success it requires an organization wider than may be disclosed
by his personal participation.") In this case, all the participants were involved together in
carrying out at least some parts of the common unlawful objectives of the conspiracy as
demonstrated by the intertwining and overarching activities of the FARC , Fabian Ramirez,
Sonia Valderrama, the defendant and the narcotics traffickers who distributed and transported
the cocaine for the FARC. Accordingly, reviewing the trial evidence in the light most
favorable to the government, it was more than adequate to establish a single conspiracy to
violate United States narcotics laws by importing cocaine into the United States and
manufacturing and distributing cocaine knowing and intending that it would be imported into
__27__
the United States, and to establish that the defendant was part of that single conspiracy as an
associate of the FARC who manufactured the very cocaine hydrochloride that made the
success of the conspiracy possible.
Furthermore, the defendant’s argument that he was tried for felonies not contained in the
indictment lacks merit, as does his claim that he was prejudiced by the indictment’s failure to
inform him of the nature of the accusations against him, which he contends prevented him from
preparing an adequate defense (Def.’s Mot. for Acquittal 8.) ln actuality, when the indictment
is compared to the trial evidence, see Background, supra, there is no overlooking the fact that the
indictment was practically a roadmap of the very evidence admitted at trial. Thus, the defendant
cannot credibly claim surprise and the defendant’s substantial rights were not affected by a
variance.
B. Prej udicial Joinder
In a separate but related argument, the defendant complains that evidence of multiple
conspiracies at trial and his joinder with his co-defendant caused him " irreparable prejudice.”
(Def.’s Mot. for Acquittal 10.) The defendant takes issue with the nature of the evidence
about the FARC that was admitted against his co-defendant, id. at 9, and suggests that "it
would be nearly impossible to overestimate the ‘spillover’ effect of the FARC testimony upon
Mr. Cuevas," id. at 10.
The Court looks at three factors to determine how difficult it was for a jury to separate
allegations against multiple defendants: (1) the number of co-defendants, (2) whether the
government presented tape recordings involving the individual defendants, and (3) whether the
court issued clarifying jury instructions. Celis, 608 F.3d at 845. After considering these
__23__
factors, this Court is not persuaded that the defendant was irreparably harmed by the alleged
spillover of evidence at his trial.
Even setting aside the Court’s determination that the trial evidence adequately proved a
single conspiracy, the fact of the matter is that there were only two defendants in this trial and
the presentation of evidence, with the exception of expert testimony about the cocaine routes
from Colombia and the general structure of the FARC, was quite compartmentalized with
respect to each defendant, particularly since each defendant was involved with a different
FARC Front in separate geographical regions of Colombia. As a consequence, there really
was no mistaking which defendant was implicated by the evidence and, as a corollary, there
was little risk of spillover. As the D.C. Circuit has observed, "[t]he risk of ‘spillover
prejudice,’ which may occur when a jury imputes evidence from one conspiracy to a defendant
involved in another conspiracy, is less likely the fewer the defendants." United States v.
Gavirz``a, 116 F.3d 1498, 1533 (D.C. Cir. 1997) (per curiam).
Furthermore, intercepted communications between the defendant and witness Femey
Tovar Parra were admitted during the trial and those communications involved discussions
about illegal activities.5 (Trial Tr. AM Session 65-73, Mar. 23, 2010.) "When the
government presents an audio or video recording of the defendant discussing criminal acts, the
risk of prejudicial spillover is minimal because the jury has ‘no need to look beyond each
defendant’s own words in order to convict."’ Celis, 608 F.3d at 846 (quoting United States v.
Ana’erson, 39 F.3d 331, 348 (D.C. Cir. 1994) (per curiam)).
5 Likewise, the govemment introduced intercepted audio communications involving
co-defendant Martinez Vega discussing criminal acts. (Trial Tr. AM Session 43-54, Mar. 18,
2010; Trial Tr. PM Session 3-19, Mar. 18, 2010.)
___7_9__
The Court also instructed the jury that "[i]n deciding whether . . . Erminso Cuevas
Cabrera . . . became a member of that conspiracy, you may consider only the acts and
statements of that particular defendant." Final Jury Instructions 33. The Court further
instructed the jury that "[y]ou should give separate consideration, and render separate verdicts,
with respect to each defendant. Each defendant is entitled to have the issue of his guilt of the
crime for which he is on trial determined from his own conduct and from the evidence that
applies to him, as if he were being tried alone. The fact that you may find one defendant
guilty or not guilty should not influence your verdict as to any other defendant.” Ia'. at 50.
These instructions served to clarify for the jurors that they may consider only the evidence
admitted against the defendant, and not evidence admitted against his co-defendant, when
deliberating about his guilt. "The jury is presumed to follow the instructions." United States
v. Hall, 610 F.3d 727, 742 (D.C. Cir. 2010) (Rogers, J.).
Given that there were only two defendants, audio recordings were admitted against
each defendant, and jury instructions made clear that the jury must compartmentalize the
evidence against the two defendants, the Court finds that any alleged variance from the
indictment was not prejudicial to the defendant and does not warrant a judgment of acquittal.
Celis, 608 F.3d at 846.
C. Sufficiency of the Evidence
The defendant disputes the sufficiency of the trial evidence to establish that he knew that
the cocaine involved in the conspiracy would be unlawfully imported into the United States, in
which case he asserts that he is entitled to a judgment of acquittal. (Def.’s Mot. for Acquittal 10-
ll.) Presented with a motion for a judgment of acquittal on the ground that the evidence is
insufficient, the Court must consider "whether, viewing the evidence in the light most favorable
__3()__
to the Government, according the Government the benefit of all legitimate inferences, and
recognizing that it is the jury’s province to determine credibility and to weigh the evidence, a
reasonable jury must necessarily entertain a reasonable doubt on the evidence presented." United
States v. Singleton, 702 F.2d 1159, 1163 (D.C. Cir. 1983) (Tamm, J.). "ln reviewing the
evidence, we keep in mind that proof of [the defendant``s] intent or knowledge may take the form
of circumstantial as well as direct evidence." United States v. Marti``nez, 476 F.3d 961 , 968 (D.C.
Cir. 2007) (Kavanaugh, J.) (intemal quotation marks omitted). "lf the evidence reasonably
permits a verdict of acquittal or a verdict of guilt, the decision is for the jury to make." United
States v. Curley, 160 F.2d 229, 237 (D.C. Cir. 1947) (Prettyman, J.).
The trial evidence showed that the FARC conducted a large-scale cocaine-trafficking
operation that was organized geographically and carried out by the various Fronts to fund the
FARC’s organization and leadership. ln the 14th Front, the defendant reviewed and documented
the accounting of thousands of kilograms of cocaine base that FARC guerillas delivered to Penas
Coloradas, where it was tested and weighed by the 14th Front’s Finance Officer, Sonia
Valderrama, before being loaded on boats and transported to a laboratory the defendant operated
for Front leader Fabian Ramirez, who was his brother. The defendant was the "boss" of Fabian
Ramirez’s laboratory, supervising around 80 workers and manufacturing thousands of kilograms
of cocaine base into cocaine hydrochloride. The trial evidence established that the cocaine’s
ultimate destination to the United States was a common topic of conversation when Sonia
Valderrama and others were weighing and testing the cocaine at Penas Coloradas, workers at the
defendant’s laboratory discussed the fact that the cocaine being manufactured there was destined
for the United States, and a FARC Bloc commander even talked about the importation of cocaine
to the United States as a matter of FARC policy. The defendant was involved in cocaine deals
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with narcotics traffickers, including at least one that involved shipping cocaine directly to the
United States. ln addition, witness testimony revealed that hundreds of thousands of dollars of
United States currency was circulating among the conspiracy’s participants and that, at times,
payment for the cocaine base that the defendant processed was not possible because United
States dollars had not been converted to Colombian pesos, l\/loreover, expert testimony
established that the United States was a primary destination for cocaine from Colombia.
All this evidence, which as the court noted is not exhaustive of what was admitted at
trial,é and the legitimate inferences that can be drawn therefrom, is sufficient to show that, not
only was the defendant integrally involved in the FARC’s large-scale conspiracy to manufacture
cocaine to fund its efforts, but it also can be reasonably and legitimately inferred from this
evidence that the defendant manufactured cocaine with the knowledge and intent that it would be
imported to the United States. Martinez, 476 F.3d at 968. Even if considered a close call, the
evidence reasonably permits a verdict of acquittal or a verdict of guilt, in which case the decision
was for the jury to make. Cur/ey, 160 F.2d at 23 7.
III. MOTION FOR A NEW TRIAL
Rule 33 of the Federal Rules of Criminal Procedure provides that "the court may vacate
any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33(a).
"The Rule does not define ‘interests of justice’ and the courts have had little success in trying
to generalize its meaning." United States v. Kuzniar, 881 F.2d 466, 470 (7th Cir. 1989)
(Flaum, J.). "Nevertheless, courts have interpreted the rule to require a new trial ‘in the
interests of justice’ in a variety of situations in which the substantial rights of the defendant
have been jeopardized by errors or omissions during trial." Id.
See n.l, supra
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A. Allegation of Improper Prosecutorial Remarks During Closing Arguments
The defendant objects to the prosecutor’s comment during closing statements that "the
problems of Colombia are a lot closer than they may appear. A lot of the problems right here in
Washington, D.C., in New York City, Detroit where l grew up, they can be traced right back to
the thousands of pounds of cocaine coming out of Colombia out of this conspiracy." (Trial Tr.
AM Session 121, Apr. 7, 2010.) The defendant argues that "[b]y contending, for the first time in
the trial, that cocaine in Detroit, Washington, D.C. and New York originated in Colombia and,
inferentially, was produced by Mr. Cuevas, the prosecutor impermissibly placed the jurors in the
shoes of the victims of drug abuse." (Def.’s Mot. for Acquittal 15.) The defendant argues that
the prosecutor’s "remarks in this regard were a blatant attempt to appeal to the jury’s emotions
and sympathies for victims of drug abuse generally and in the community in particular." Ia'.
"The touchstone of a prosecutorial misconduct claim is prejudice: the court must consider
‘the probable effect the prosecutor’s [statements] would have on the jury’s ability to judge the
evidence fairly."’ United States v. Thomas, 114 F.3d 228, 246 (D.C. Cir. 1997) (Wald,
Silberman & Rogers, J.) (quoting United States v. Young, 470 U.S. l, 12 (1985)). "To determine
whether improper remarks by the prosecutor have substantially prejudiced a defendant’s trial, the
court looks to ‘the severity of the misconduct, the measures adopted to cure the misconduct, and
the certainty of conviction absent the improper remarks."’ ld. (quoting United States v.
VVz``llz``ams-Davis, 90 F.3d 490, 507 (D.C. Cir. 1996) (Williams, J.)).
lt is well established that "[a] prosecutor may not make comments designed to inflame
the passions or prejudices of the jury" or "ask jurors to find a defendant gmilty as a means of
promoting community values, maintaining order, or discouraging future crime." United States v.
Johnson, 231 F.3d 43, 47 (D.C. Cir. 2000). Even assuming without deciding that the
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prosecutor’s remarks violated this tenet, however, the Court is not persuaded that the comment
substantially prejudiced the defendant``s trial. The comment was isolated, brief and occurred
during a lengthy closing argument that covered about six weeks of evidence in a complex
narcotics-conspiracy case, The jury heard trial testimony about the percentage and volume of
cocaine imported from Colombia into the United States, so a comment suggesting that cocaine
entering this country finds its way to major cities was not particularly noteworthy.
"When taken in context of the entire trial and the lengthy closing arguments and rebuttal,
the objectionable references did not significantly detract from the proper focus of the argument."
United States v. Ober/e, 136 F.3d 1414, 1422 (l0th Cir. l998) (Ebel, J.). The Court instructed
the jury that "[t]he statements and arguments of the lawyers are not evidence," Jury lnstructions
10, and "[r]egardless of the prosecutor’s statement, the evidence clearly supported the jury``s
verdict.” United States v. Johnson, 231 F.3d 43, 49 (D.C. Cir. 2000). The Court therefore
concludes that the prosecutor’s comment did not affect the jury’s ability to judge the evidence
fairly and the defendant was not substantially prejudiced.
B. Denial of Motions to Sever
The defendant insists that he suffered ‘“substantial and irreparable prejudice" as a result of
being tried with co-defendant Martinez Vega so it was improper for the Court to deny the
motions for severance he made before and during trial. (Def.’s Mot. for Acquittal 19-21.) By the
defendant’s account, the "weight of the evidence" offered against his co-defendant "was far
greater" than the evidence offered against him, and the "majority of evidence presented by the
govemment" related to the FARC’s activities, which was unrelated to him because he is not a
FARC member. (Id. at 20.)
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Although Rule l4(a) of the Federal Rules of Criminal Procedure permits a court to sever
the trials of multiple defendants if joinder will prejudice a defendant, "[t]he Supreme Court has
instructed district courts to grant severance ‘only if there is a serious risk that a joint trial would
compromise a specific trial right of one of the defendants, or prevent the jury from making a
reliablejudgment about guilt or innocence."’ Ce/z``s, 608 F.3d at 844 (quoting Zafi``ro v. United
States, 506 U.S. 534, 539 (l993)). "District courts should grant severance sparingly because of
the ‘strong interests favoring joint trials, particularly the desire to conserve the time of courts,
prosecutors, witnesses, and jurors."’ Id. (quoting United States v. Mardi'an, 546 F.2d 973, 979
(D.C.Cir.l976)).
lt is well established that "[t]he critical determination in evaluating a motion to sever the
case of two or more co-defendants is whether a jury could reasonably compartmentalize the
evidence introduced against each individual defendant." United States v. Hernandez, 780 F.2d
113, 119 (D.C. Cir. 1986). Without belaboring the point, and as the Court already indicated,
there were only two defendants who went trial in this case and the evidence was very
compartmentalized with respect to each of them. Each defendant had a very specific role in the
conspiracy (the defendant operated a large laboratory that manufactured cocaine whereas his co-
defendant transported and traded cocaine and weapons), each defendant was tied to separate
FARC Fronts that were in different geographical regions of Colombia, and each defendant had
established and integral relationships with leaders in their respective Fronts who easily could
be distinguished by name and events. Finally, "[t]he jury could assess [the defendant’s]
personal culpability because it heard a significant amount of evidence relating to his own
unlawful acts quite apart from anything said about the FARC." Celz``s, 608 F.3d at 845. For
all these reasons no severance was warranted before or during trial, and no new trial is
required in the interest of justice.
C. Weight of the Evidence
The defendant’s last contention is that the weight of the evidence does not support his
conviction. (Def.’s Mot. for Acquittal 21-22.) "In considering a new trial motion based on
the weight of the evidence the district judge weighs the evidence and evaluates the witnesses’
credibility and decides whether a serious miscarriage of justice may have occurred." United
States v. Dale, 991 F.2d 819, 838 (D.C. Cir. 1993) (per curiam).
After consideration of all the trial evidence, much of which is summarized in this
opinion and involved eye-witness accounts of the defendant’s criminal activities and conduct in
furtherance of the conspiracy, and after evaluating the witnesses’ credibility in light of their
demeanor at trial, the rationality of their testimony, internal consistencies, and "the manner in
which it hangs together with other evidence," Carbo v. United States, 314 F.2d 718, 749
(D.C. Cir. 1963), the Court is persuaded that the weight of the evidence favors conviction and
no miscarriage of justice occurred. Although many of the witnesses were former FARC
guerillas who demobilized and entered a program offered by the Colombian govermnent that
provides these individuals with benefits, education and immunity from prosecution for their
crimes, their testimony was plausible and convincing and consistent to the extent that they
each described the defendant engaging in similar criminal activities under similar
circumstances (e.g., accounting for cocaine while Sonia Valderrama tested and weighed it,
arriving and departing by speed boat and loading boats with cocaine, and manufacturing
thousands of kilograms of cocaine as the "boss" of a large cocaine laboratory), and they
consistently testified about seeing him interacting with the same FARC leaders (e.g., Sonia
Valderrama and Fabian Ramirez).
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Additionally, in Parts ll (A) and (C) supra, the Court found that there was sufficient
evidence to support the defendant``s conviction for participating in a single conspiracy to violate
United States narcotics laws by importing into the United States five kilograms and more of
mixtures and substances containing detectable amounts of cocaine and manufacturing and
distributing five kilograms and more of mixtures, compounds and substances containing
detectable amounts of cocaine, and coca leaves, intending and knowing that these controlled
substances would be unlawfully imported into the United States. Likewise, the Court finds
that the weight of this same evidence also favors conviction and no miscarriage of justice
occurred.
CONCLUSION
For the foregoing reasons, the Court will deny Errninso Cuevas Cabrera’s Motion For A
Judgment Of Acquittal, Or, ln The Altemative, Motion F or New Trial And Motion To Dismiss
[Docket No. 270]. An appropriate order will accompany this Memorandum Opinion.
.ZW.%//¢izv-
AugusQ, 2010
Thomas F. H
United States Dist dge
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