United States v. Ruben Diaz, 916 F.2d 655, 11th Cir. (1990)
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2d 655
UNITED STATES of America, Plaintiff-Appellee,
v.
Ruben DIAZ, Defendant-Appellant.
No. 89-5684.
United States Court of Appeals,
Eleventh Circuit.
Nov. 6, 1990.
Joel Hirschhorn, Broad & Cassel, Miami, Fla., for defendant-appellant.
Dexter W. Lehtinen, U.S. Atty., Michael P. Sullivan, Carol E. Herman,
Linda Collins-Hertz, Asst. U.S. Atty., Miami, Fla., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of
Florida.
Before HATCHETT and CLARK, Circuit Judges, and MORGAN, Senior
Circuit Judge.
MORGAN, Senior Circuit Judge:
Appellant, Ruben Diaz, was convicted following a jury trial of conspiracy to
import cocaine as proscribed by 21 U.S.C. Sec. 963. He received a five year
sentence of imprisonment and is currently incarcerated. Appellant challenges
his conviction and sentence alleging that: (1) the evidence was insufficient to
establish his participation in the conspiracy; (2) he was denied a fair trial by the
prosecutor's improper comments; and (3) the district court erred in failing to
give an instruction on withdrawal from the conspiracy. Having reviewed the
record and given due consideration to appellant's arguments, we affirm the
judgment and sentence of the district court.
SUFFICIENCY OF THE EVIDENCE
2
To support a conviction for conspiracy, the government must prove only that
two or more persons agreed to commit a crime, that the defendant knew of the
conspiratorial goal, and that he voluntarily participated in helping to accomplish
that goal. United States v. Lee, 695 F.2d 515, 518 (11th Cir.), cert. denied, 464
U.S. 839, 104 S.Ct. 130, 78 L.Ed.2d 125 (1983). The existence of such an
agreement may be proved by either direct or circumstantial evidence; a
common scheme or plan may be inferred from the conduct of the alleged
participants or from other circumstances. United States v. Bascaro, 742 F.2d
1335, 1359 (11th Cir.1984), cert. denied, 472 U.S. 1017, 105 S.Ct. 3476, 87
L.Ed.2d 613 (1985). It is not necessary for the government to disprove every
reasonable hypothesis of innocence as the jury is "free to choose among
reasonable constructions of the evidence." United States v. Vera, 701 F.2d
1349, 1357 (11th Cir.1983) (quoting United States v. Bell, 678 F.2d 547, 549
(5th Cir. Unit B 1982) (en banc), aff'd, 462 U.S. 356, 103 S.Ct. 2398, 76
L.Ed.2d 638 (1983)).
3
In judging the sufficiency of the evidence, this Court must view the evidence in
the light most favorable to the government, Glasser v. United States, 315 U.S.
60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), accepting reasonable inferences and
credibility choices made by the jury. United States v. Sanchez, 722 F.2d 1501,
1505 (11th Cir.), cert. denied, 467 U.S. 1208, 104 S.Ct. 2396, 81 L.Ed.2d 353
(1984). Therefore, we summarize the evidence in the light most favorable to the
government.
David Posada, a Colombian national, desired to import cocaine into the United
States from Colombia, South America. Posada enlisted the aid of his brotherin-law, Ray Perez, a City of Miami police officer. Perez recruited several other
Miami police officers to assist in the importation, including George Canizares
and Reggie Capiro. After an initial planning meeting with Posada at which it
was decided that the cocaine would be flown from South America to Texas and
then transported over land to Florida, Perez concluded that additional
manpower would be needed to guard the cocaine. Appellant was approached by
Perez and Canizares, who advised him that he would earn $30,000 for his
services in guarding the cocaine shipment from Texas to Miami.
Subsequent to this approach, appellant, Capiro, and another Miami police
officer, Arturo De La Vega, traveled to McAllen, Texas, to meet with Perez and
Posada. Appellant packed a Walther PPK and a Remington shotgun for the trip
to Texas and informed his wife that he was going to vacation in Texas and go
hunting. While in McAllen, appellant sat in on discussions regarding the
importation plan and it was understood that he would act as a guard for the
shipment. The group subsequently moved on to South Padre Island to await the
commencement of the importation scheme. At South Padre Island, the group
devoted themselves primarily to recreational activities, however, at some point
during this trip, Capiro sawed off appellant's shotgun. The plan was ultimately
delayed by the murder of a Columbian official, and appellant returned to
Miami.
6
Subsequently, appellant made another trip to Texas and participated in the
search for a landing strip for the airplane. Ultimately, appellant returned to
Texas to retrieve his firearms which had been left with a coconspirator, Larry
Thompson, for safe keeping.
At the time of his arrest, appellant informed F.B.I. agent Judd that he traveled
to Texas and participated in an unsuccessful attempt to import cocaine.
Appellant testified in his own defense that although he knew discussions
concerning the importation of cocaine were going to occur on his trips to Texas,
he did not plan to participate in the scheme and simply went along to party. He
denied telling agent Judd that he participated in the conspiracy.
It is undisputed that the conspirators' attempt to import cocaine never
proceeded past the planning stages. That is, no load of cocaine was ever
secured or brought into this country. We believe, however, that a reasonable
jury could conclude from the foregoing evidence that appellant was guilty of
conspiracy to import cocaine and, therefore, we sustain the jury's verdict. See
United States v. Montes-Cardenas, 746 F.2d 771, 778 (11th Cir.1984) (jury's
verdict must be upheld if any reasonable construction of the evidence allowed
the jury to find guilt beyond a reasonable doubt).
PROSECUTORIAL MISCONDUCT
9
Appellant argues that the prosecutor engaged in an improper attempt to link
appellant's crime to the offenses committed by the "Miami river cops" and that
he was severely prejudiced by this action.
10
Appellant's offense was committed in 1984. Beginning in 1985 and subsequent
years, a group of City of Miami police officers known as the "river cops"
engaged in a pattern of activities which involved "ripping off" drug dealers and
ultimately resulted in the drowning deaths of three drug dealers. Appellant was
not involved in the "river cops" cases although several of his coconspirators
were. Indeed, Reggie Capiro, an admitted "river cop" testified in this trial as
part of his plea bargain with the government on charges stemming from the
"river cops" incidents.
11
In considering this issue we observe that appellant never made a specific
objection to those comments which he now argues are most egregious and
require reversal. Appellant objects to the following statements made during the
prosecutor's rebuttal closing argument:
12 Government didn't bring up all the other drug crimes by many other policemen,
The
including some in this conspiracy. Arturo De La Vega for one. Three men got
drowned in the river.
13
Again,
I don't know why we are discussing that. You want to know what could have
prevented three men from drowning in the Miami River in July, '85? Ruben Diaz
could have prevented three men from drowning in the river if he had been a good
cop in June or any other month in 1984, and reported the men he was participating
with.
That would have prevented three men from drowning in the river ...
14
15
Under
Ruben Diaz' theory of no harm, no foul, if you shoot at somebody and miss-big deal. Nobody got hurt. Let's forget about it. That is this whole conspiracy.
16 forgot it. Five or six years his pals went on to do other rip-offs he could have
He
prevented. He was the bad cop.
17
Appellant's sole objection to the closing argument, made not at the conclusion
of that argument but at the conclusion of the jury instructions, was as follows:
I18would move for a mistrial on the ground that at some point in the closing
arguments he made a statement other defendants who wanted bigger better things.He
specifically said Arturo De La Vega went on to commit other crimes. There was no
evidence of that during the course of the trial.
19
There
was no evidence of Mr. De La Vega at all. 1 There was no testimony as to it. I
think it was highly prejudicial, improper and based on nothing presented to the
court.
20
While the prosecutorial argument objected to may have exceeded the bounds of
good judgment, we do not believe it amounted to plain error.2 See United States
v. Young, 470 U.S. 1, 16, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985) (finding
prosecutor's statements to be inappropriate but not plain error, because they did
not undermine the fundamental fairness of the trial or contribute to a
miscarriage of justice). Even assuming defense counsel's objection to the
prosecutor's argument was sufficient, appellant is not entitled to a new trial.
The jury was properly instructed not to consider the arguments of the attorneys
as evidence, and we have concluded that there was sufficient evidence from
which a reasonable jury could find guilt. Thus, on this record, we conclude that
any error was harmless. See United States v. Bascaro, 742 F.2d at 1353 (to
obtain a new trial based on a claim of prosecutorial misconduct during closing
argument, challenged remark must be both improper and prejudicial to a
substantial right of the defendant).
JURY INSTRUCTION ON WITHDRAWAL
21
Appellant argues that the district court erred in refusing to give his requested
jury instruction on withdrawal from the conspiracy, alleging that there was
some evidence in the record which supported the withdrawal defense. To
prevail on this claim, appellant must show that the requested instruction was
correct, that it was not substantially covered by the other instructions delivered,
and that it concerned a point in the trial so important that the failure to give the
instruction severly impaired the defense. See United States v. Finestone, 816
F.2d 583, 588 (11th Cir.), cert. denied, 484 U.S. 948, 108 S.Ct. 338, 98 L.Ed.2d
365 (1987); United States v. Sans, 731 F.2d 1521, 1529-30 (11th Cir.1984),
cert. denied, 469 U.S. 1111, 105 S.Ct. 791, 83 L.Ed.2d 785 (1985).
22
The requested jury instruction is not included on the record on appeal so it is
impossible to determine whether or not that instruction was correct. Appellant
argues in his reply brief that this instruction was omitted from the record and he
should not be penalized for this omission, however, he has made no attempt to
supplement the record before the Court with a copy of the instruction. Although
this alone warrants affirmance on this issue, we also note that the district court
correctly concluded that there was no evidence in the record supporting the
affirmative defense of withdrawal and thus, appellant was not entitled to a
withdrawal instruction. See United States v. Finestone, 816 F.2d at 589 (mere
cessation of activity in the conspiracy is not sufficient to establish withdrawal,
rather an affirmative step of disavowal is required). Appellant argues that his
refusal to talk to one of the coconspirators, Thompson, provides some evidence
of withdrawal, but we find that this action, occurring after the conclusion of all
the acts which gave rise to the conspiracy charge, is insufficient evidence of
withdrawal to merit an instruction on this affirmative defense. Id.
23
For these reasons, we AFFIRM the judgment of conviction and the sentence of
the district court.
To the contrary, Reggie Capiro testified without objection that De La Vega was
one of the "river cops."
Even if we were to deem the statement in the closing argument to be improper,
it is clear to us that the remaining prosecutorial comments and questions
referenced in appellant's brief, which were not objected to at trial, do not rise to
the level of plain error
