This is a case that addresses the principal issues surrounding most drug importation cases. It addresses the issues that defendants in these cases are interested in.
The case is US v. Arbane, 446 F.3d 1223 (11th Cir. 2006), and it is so clearly written that there is no reason to summarize it. It was edited only for simplicity and clarity. But every word is the court’s, and every word is beautiful.
United States Court of Appeals,
Eleventh Circuit.
UNITED STATES of America,
v.
Mehrzad ARBANE, a.k.a. El Turco, a.k.a. Tony, Defendant
April 21, 2006.
Background: Defendant was convicted in the United States District Court for the Southern District of Florida, of conspiracy to import cocaine into the United States, and he appealed.
Holdings: The Court of Appeals held that:
(1) District Court had jurisdiction to try defendant for conspiracy, and
(2) Evidence was insufficient to show that anyone other than government informant was involved in alleged conspiracy.
BARKETT, Circuit Judge:
Mehrzah Arbane appeals his conviction, following a jury trial, for conspiracy to import five kilograms or more of cocaine into the United States in violation of 21 U.S.C. §§ 952(a), 960(b)(1)(B), and 963. On appeal, Arbane argues that: (1) we lack jurisdiction to try, imprison, and punish him because his presence in the United States was procured in violation of the extradition treaty between the United States and Ecuador; [and] the evidence was insufficient to support the conviction. We address only Arbane’s arguments on jurisdiction and sufficiency of the evidence.
I. BACKGROUND
Arbane was indicted on one count of conspiracy to import five kilograms or more of cocaine. The indictment alleged that Arbane was guilty of a conspiracy to import cocaine into the United States which commenced in October 2001 and ended on January 8, 2002. During Arbane’s trial, the government’s key witness was Jose Jairo Velez, a government informant who testified that he and Arbane had engaged in various criminal activities, including the exportation of cocaine from Ecuador. Arbane was convicted and sentenced to 235-months’ imprisonment, a five-year term of supervised release, a $100 special assessment, and a $5,000 fine. He now brings this timely appeal.
II. DISCUSSION
A. Jurisdiction
Arbane first challenges whether there was jurisdiction to try him in the Southern District of Florida because of the manner in which his presence in the United States was obtained. After Arbane was acquitted on drug possession charges brought in Ecuador, he was ordered deported to Iran. En route to Iran, Arbane’s plane landed for a stopover in Houston, Texas, where Arbane was arrested on the instant indictment and removed to the Southern District of Florida. Arbane argues that because he arrived in the United States outside of the normal judicial and treaty processes, the court lacked jurisdiction to try, convict, and imprison him.
[1] We conclude that the Supreme Court’s decision in United States v. Alvarez-Machain, 504 U.S. 655, 112 S.Ct. 2188, 119 L.Ed.2d 441 (1992), precludes relief on this basis. In Alvarez-Machain, the Court held that unless an extradition treaty contains an explicit provision making the treaty the exclusive means by which a defendant’s presence may be secured, extra-treaty seizures are permitted. Alvarez-Machain was forcibly abducted from Mexico at the behest of the DEA to stand trial in the United States. The Court dismissed Alvarez-Machain’s claim because our treaty with Mexico did not expressly forbid abductions to secure a defendant’s presence. Whereas the defendant in Alvarez-Machain was abducted by law enforcement agents, Arbane was simply placed, by Ecuadorian officials, on a plane that stopped in the United States. Arbane does not and cannot claim that our extradition treaty with Ecuador contains a clause expressly requiring that we secure his presence in accordance with the treaty.
[2] Arbane likewise cannot point to a law which divests us of jurisdiction under these circumstances. “[T]he power of a court to try a person for crime is not impaired by the fact that he had been brought within the court’s jurisdiction by reason of a ‘forcible abduction.’ ” The Supreme Court holds that a criminal defendant cannot defeat personal jurisdiction by asserting the illegality of the procurement of his presence in the relevant jurisdiction-here, the United States. See, e.g., United States v. Noriega, 117 F.3d 1206, 1214 (11th Cir.1997). Thus, Arbane is not entitled to dismissal for lack of jurisdiction.
B. Sufficiency of the Evidence
Arbane argues that the government’s evidence is insufficient to support his conspiracy conviction because the government failed to prove that he conspired with anyone other than a government informant, which is insufficient to support a conviction for conspiracy and requires reversal.
The evidence of the charged conspiracy in this case was presented only through the testimony of confidential informant Jose Jairo Velez. Velez testified that he and Arbane met in 1999 and began engaging in various illegal conduct throughout Central America, South America, and Mexico. Eventually, they engaged in the drug trade. He and Arbane shipped drugs from Ecuador to Mexico, from Mexico to Guatemala, from Guatemala to Panama, and from Panama to Ecuador. These transactions began in 1999 and ended in December 2000. [the conspiracy charged began in 2001].
The government [also] presented the testimony of an Ecuadorian police officer who seized 222 packages from an apartment in Guayaquil, Ecuador that Jose Lopez-Posada was renting from Arbane. An Ecuadorian forensic chemist testified that the substance seized was cocaine. Neither of these witnesses testified as to a conspiracy or agreement involving Arbane. The government also offered the videotaped deposition of Jose Lopez-Posada. However, Lopez-Posada testified that he was a farmer from Colombia who was paid $1,000 per month to reside in the apartment in Guayaquil, Ecuador where the cocaine was found. He stated that he used $300 to pay the rent and used the remaining money for expenses. He denied any involvement in drug transactions. Arbane did not testify on his own behalf.
In early 2000, Velez and Arbane purchased and shipped cocaine from Ecuador to Mexico, where they sold fifteen kilograms to Jose Luis Jimenez, known as the Engineer. Just before Easter in 2000, the Engineer transported the fifteen kilograms to New York, where they were sold. Velez testified that in the summer of 2000, Velez showed two men how to vacuum seal the drugs so they could fit on the Engineer’s airplane. He testified that one of these men “had sort of a swarthy or darkish skin” and the other “had perhaps Indian features” and “was called Jose.”
According to Velez, the Engineer bought ten more kilograms of cocaine from him and Arbane in early December 2000 and an additional amount in late December 2000, both of which he imported to the United States. This was the final instance when they sold drugs to the Engineer.
This evidence pertaining to the prior importation of drugs into the United States was admitted pursuant to Federal Rule of Evidence 404(b). The district court correctly instructed the jury, without objection from the government, that it was not permitted to consider evidence of Arbane’s prior acts similar to those charged in the indictment but committed on other occasions except for the purpose of determining Arbane’s intent, and only if they found beyond a reasonable doubt from other evidence in the case that Arbane did commit the acts charged in the indictment. We agree with the district court that the evidence of Arbane’s prior drug dealing was properly admitted as probative of intent. We also agree with the district court that evidence of prior bad acts without evidence that Arbane committed the acts charged in the indictment is insufficient to sustain a conviction.
The evidence of a prior conspiracy to import drugs throughout South America and even to import drugs into the United States from 1999 through 2000 with the assistance of the Engineer cannot support the conspiracy actually charged. The government presented all evidence regarding the Engineer as 404(b) evidence precisely because it predated the period of illegal activity alleged in the indictment. The notice requirement within Rule 404(b) as well as the fact that Rule 404(b) expressly bars evidence of prior bad acts from being used to suggest action in conformity therewith makes clear that 404(b) evidence cannot, by itself, serve as a basis for a conviction.
Velez testified that towards the end of 2000, Arbane discussed with Velez the possibility of storing drugs for shipment to Mexico or possibly Miami in containers of frozen seafood:
“[Arbane] had attempted to speak with a nautical shipping company, and I spoke with another nautical shipping company in Mexico City, so there were two possibilities of bringing the drugs over: One was bringing it among a load of frozen vegetables into the port of Mazatlan, Mexico, and another one was on a ship in a load of seafood and fish coming into the city of Miami.”
“In one of my trips into Ecuador in the year 2000, [Arbane] took me to show me a storage place for containers, which was a hidden compartment this container had, a frozen container, next to the refrigeration unit, and it was there we were gonna store, put the drugs in that we were gonna bring to Miami. And in that instance only Tony [Arbane] and I would be the only people involved.”
Despite the discussion regarding the possibility of importing drugs to the United States by boat, Velez testified that they did not do so at the time:
Q[uestion]: “So, between October 2001 and January of 2002 you and [Arbane] never had an agreement during that time frame to bring drugs into the United States, did you?
A[nswer]: “Not to the United States and not to anywhere else, because we couldn’t.”
In June 2001, [before the start of the conspiracy charged] Engineer was arrested and detained in the United States. Velez testified that the Engineer was the only conduit they used to bring drugs to the United States by plane:
Q: “So the only connection you had to bring drugs into New York was the Engineer, correct?
A: “Yes, sir.”
…
Q: “Other than the Engineer, there was nobody else to take it to the United States. Am I correct?
A: “There were more people, but we didn’t work with anyone else but the Engineer.”
Just after the Engineer was arrested, Velez began cooperating with the government as an informant and then began taping conversations between himself and Arbane. At trial, the government introduced these recorded conversations. Velez testified that during these conversations, Arbane complained that it was costing him a lot of money to pay Lopez-Posada for the storage of the drugs in Ecuador. He also explained that during one of these conversations, he and Arbane were discussing the possibility of importing drugs to the United States via boat. Velez explained that although he told Arbane during the conversation that there was a third party who would receive the drugs once the ship arrived at its final destination and who would receive 30% of their profits, in reality the plan was for U.S. Customs to receive the ship and unload the drugs upon the ship’s arrival.
The question before us is whether Velez’s testimony suffices to support a conviction for the charged conspiracy to import cocaine into the United States. To support such a conviction, the government must prove beyond a reasonable doubt that there existed an agreement between two or more persons to import narcotics into the United States and that the defendant knowingly and voluntarily participated in that agreement.
It is axiomatic that you cannot have a conspiracy without an agreement between two or more culpable conspirators. If there are only two members of a conspiracy, neither may be a government agent or informant who aims to frustrate the conspiracy. The government may prove the existence of an agreement by circumstantial evidence through “inferences from the conduct of the alleged participants or from circumstantial evidence of a scheme.”
In this case, we do not find sufficient evidence of the relevant agreement between Arbane and anyone other than Velez, a government informant, during the relevant time period. The government concedes that Velez cannot be a co-conspirator because he was a government informant. The government likewise concedes that the Engineer was not a member of the conspiracy charged in the indictment [October 2001-January 2002] because there is no evidence that he had a continuing role or interest in a relationship with Arbane and Velez after he was arrested and detained in June 2001.
[7] The government asserts the existence of three possible co-conspirators-(1) Jose Lopez-Posada, the man renting the house where the drugs were found, (2) Luis Castillo Amen, Arbane’s secretary in Ecuador, and (3) “Rene,” one of Velez’s contacts who could allegedly transport the drugs out of Mexico. . .
The indictment alleged that Arbane conspired with “other persons both known and unknown,” but did not name any co-conspirators. While it is the law of this Circuit that “an individual can be convicted of conspiracy with ‘unknown persons’ referred to in the indictment,” the government has not proven the existence of unknown persons and has only proffered the three named possible co-conspirators discussed herein. While in its brief, the government argues that Arbane “was paying a lot of money” to safeguard the cocaine, the evidence at trial revealed only that Lopez-Posada was paid to guard the house where the cocaine was found and did not reveal the existence of any other persons, known or unknown, who were responsible for anything relating to drugs. Furthermore, the government did not argue either in its briefs or at oral argument that there were unnamed co-conspirators-they only argued that Arbane conspired with Lopez-Posada and Luis Castillo Amen, and Rene. In any event, we have reviewed the entire record and fail to find any other conspirator to import drugs into the United States.
With reference to Jose Lopez-Posada, the government presented evidence that he was arrested with Arbane in Ecuador and that he took care of the apartment in Ecuador where the drugs were kept. Specifically, Velez testified that Jose Lopez-Posada was “the gentleman who took care of or who guarded the house where the drugs were kept.” However, the government presented no evidence that Lopez-Posada was a participant in, or had knowledge of, a conspiracy to import drugs into the United States.
Even if one were to infer that Lopez-Posada knew that the house he was guarding contained drugs, there is no evidence that Lopez-Posada possessed “a general understanding of the unlawful purpose of the plan, nor “knowledge that h[is] actions would further the venture.” There was simply no evidence introduced at trial from which the jury could have found beyond a reasonable doubt that Lopez-Posada knew or intended or agreed in any way to import drugs to the United States. Accordingly, the government did not meet its burden to show an agreement between two or more culpable co-conspirators to commit the illegal act charged.
[8] The crux of the “agreement” element in a conspiracy case is that the government must prove a “meeting of the minds” to achieve the unlawful result. While it is true that the government need not prove that a conspirator knew all of the details or participated in every aspect of the conspiracy, it was the government’s burden to prove the “essential element” of “an agreement between two or more persons to violate [United States] narcotics laws.”
The only conspiracy charged in this case was a conspiracy to import drugs into the United States. The venture or plan to which two culpable co-conspirators must have agreed is thus the importation of drugs into the United States. Of course, conspiracy to possess drugs in Ecuador, to export drugs from Ecuador, or to distribute drugs in South America are not crimes in the United States. The government was therefore obligated to prove that two co-conspirators agreed to a United States crime-to be precise, the crime charged in the indictment.
The reason that the destination of the drugs is significant here is because the agreement to import is the essence of the charged conspiracy. In fact, the only reason we have subject-matter jurisdiction in this case is the laws of the United States are alleged to have been violated. In a conspiracy to import drugs into the United States, the essential nature of the conspiracy is the importation of narcotics into the United States. Such a conspiracy requires the agreement of two or more people to violate the laws of the United States. The co-conspirator need not know every fact about the conspiracy-for example, he need not know the details of when the drugs will be imported into the United States or who else is involved in the importation, but he must at the very least know that the drugs will be imported into the United States. This is, of course, not meant to suggest that in every drug prosecution the government need prove an agreement about the intended destination of drug shipments, for example, in cases involving actions which take place wholly within the borders of the United States. However, the gravamen of a drug importation crime, which permits the case to be brought in U.S. courts, is the importation into the United States.
“The government must show that each member participated in the conspiracy with knowledge of its illegal purpose and not merely that a member associated with a bad person.” (Emphasis added)); “[A] person cannot conspire with himself; at least two conspirators must have sufficient knowledge in order for there to be a conspiracy.” (Emphasis added)) . . . [t]he defendant’s agreement must be with someone other than a government agent or informant.”
The dissent seems to be bifurcating the agreement and knowledge elements, arguing that there can be an agreement between two persons even if one does not have any knowledge of the basic purpose of the agreement. See Dissenting Opinion at n.1. The dissent cites numerous cases in which we have discussed the government’s need to prove the defendant’s requisite knowledge, but of course none of those cases are exclusive of the government’s obligation to prove an agreement between the defendant and at least one other co-conspirator. In fact, it is impossible to have an agreement absent knowledge by both parties as to what it is they have agreed to accomplish. There exists no scenario where a person will have agreed to a conspiracy without knowledge of the essential nature of the conspiracy-the very definition of an “agreement” is a meeting of the minds, and there can be no meeting of the minds if only one mind contains knowledge of the object of the agreement.
*1231 As the Supreme Court has stated, “It is impossible in the nature of things for a man to conspire with himself …. [C]onspiracy imports a corrupt agreement between not less than two with guilty knowledge on the part of each. The Supreme Court’s analysis of the facts in [the case of] Morrison is particularly apt. Two men, George Morrison and H. Doi, were convicted of conspiracy to violate California’s Alien Land Law. That statute made it a crime to knowingly conspire to place an alien Japanese, ineligible for citizenship, in the possession and enjoyment of agricultural land within the state. Because Morrison did not have knowledge that Doi was ineligible for citizenship, the Court reversed each’s conviction since “[i]n California as elsewhere conspiracy imports a corrupt agreement between not less than two with guilty knowledge on the part of each.” 291 U.S. at 92, 54 S.Ct. 281. The Court concluded that “Doi was not a conspirator, however guilty his own state of mind, unless Morrison had shared in the guilty knowledge and design.” Id. at 93, 54 S.Ct. 281; see also 15A C.J.S. Conspiracy § 111 (2005) (“When knowledge is an essential element of the underlying substantive offense, all co-conspirators must possess the requisite knowledge, as a person cannot conspire with himself or herself, and at least two conspirators must have sufficient knowledge in order for there to be a conspiracy.” (emphasis added)); United States v. Brazel, 102 F.3d 1120, 1139-40 (11th Cir.1997) (affirming jury instruction that “a person who has no knowledge of a conspiracy, but who happens to act in a way which advances some purpose of one, does not thereby become a conspirator”).
In this case, the record is devoid of any evidence that Lopez-Posada knew of the existence of a plan to import the drugs into the United States, much less its purpose or his role in furtherance thereof. For instance, the recorded conversations between Velez and Arbane reveal an agreement between the two men to import drugs, but the only involvement of Lopez-Posada anywhere in these conversations is Arbane’s mention that Lopez-Posada was guarding the house where the drugs were stored. Neither the conversations themselves, nor Velez’s explanation of them during his testimony at trial, reveal an agreement by Lopez-Posada to import drugs into the United States. The fact that Lopez-Posada rented and guarded the house from Arbane does not support an agreement on Lopez-Posada’s part to belong to a conspiracy to import drugs into the United States. Even if we could infer that Lopez-Posada knew that the drugs were leaving Ecuador, there was no evidence that Lopez-Posada knew they were headed to the United States. We recognize that circumstantial evidence is sufficient to prove an agreement, but the government presented no evidence-neither direct nor circumstantial-to support an agreement by Lopez-Posada to import drugs into the United States.
As noted in footnote 10, the essential element of the charged conspiracy to which two or more persons must have agreed was importation of narcotics into the United States. Even if it could be inferred that Lopez-Posada was the man “called Jose” with “Indian features” who Velez taught to vacuum seal drugs to fit on the Engineer’s airplane in 2000, this is at best evidence that in 2000, Lopez-Posada knew that Arbane and Velez intended to export drugs from Ecuador on the Engineer’s airplane. There was absolutely no evidence that the man “called Jose” knew where the airplane was headed. The facts that the drugs were vacuum packed, sealed with tape, and covered in an oily substance to mask the smell are likewise evidence that Lopez-Posada may have known the drugs would be exported, but not that he knew they were headed to the United States. Moreover, even if there was evidence that Lopez-Posada was part of the conspiracy to import drugs to the United States with the Engineer, that conspiracy occurred prior to the period of conspiracy alleged in the indictment, and there was no evidence that Lopez-Posada knew of or was part of the charged conspiracy to import drugs to the United States by boat from October 2001 to January 2002.[the period of the conspiracy] See Fernandez, 797 F.2d at 949 (holding that past involvement in drug activity does not qualify as evidence of an agreement to import). As we have stated, the evidence regarding the Engineer was introduced as 404(b) evidence, which cannot be the sole basis to convict Arbane of the charged conspiracy.
In that respect, this case is unlike those cases where we have found sufficient evidence to convict crew members aboard ships which were headed to the United States as knowing participants in a drug conspiracy. but see United States v. Vidal-Hungria, 794 F.2d 1503 (11th Cir.1986) (reversing convictions of seven crew members for conspiring to possess and possessing marijuana, on the ground that the circumstances of the discovery of the marijuana “does not lend itself to an inference that all persons on the vessel necessarily knew of the presence of the marijuana”). In both Cruz-Valdez and Munoz, the co-conspirators were arrested in a boat which the evidence showed was headed to the United States. Indeed, the defendants in Cruz-Valdez and Munoz never contended that the government had failed to prove their knowledge that the ship on which they were all arrested was heading to the United States. In fact, we have on least one occasion affirmed a conspiracy conviction only after analyzing whether the government met its burden of introducing sufficient evidence of an agreement to import to United States specifically. See United States v. DeWeese, 632 F.2d 1267, 1271-72 (5th Cir.1980) (affirming conviction for conspiracy to import based on presence of navigational charts aboard the boat and expert testimony that the ship was headed to the United States and based on the close relationship between captain and crew during the long voyage).
None of the evidence from which we have previously inferred knowing participation in a conspiracy to import was present in this case. Lopez-Posada was not arrested aboard a ship laden with drugs and headed to the United States. There was simply no circumstantial evidence tying anyone other than Arbane and Velez in any way to an agreement to import drugs into the United States. The government may have proved a conspiracy to possess drugs in Ecuador or export them from Ecuador to any number of South American countries, but that was not the conspiracy charged, nor could the United States criminalize such conduct without a jurisdictional basis. For these reasons, we must conclude that the government did not present sufficient evidence of an agreement between Arbane and Lopez-Posada to import drugs to the United States.
Nor can the evidence support the government’s alternative claim that Velez and Arbane conspired with Luis Castillo Amen, Arbane’s secretary in Ecuador. The only evidence pertaining to Luis is that he functioned as Arbane’s secretary, for example, by keeping Velez in touch with Arbane. According to Velez, Arbane stopped sending Luis money in Ecuador, so Velez “sent him $500 so that he could work.” Velez stated that he desired to send Luis out of Ecuador because he was concerned that he would talk to the authorities, though Velez did not testify as to what Luis might say to the authorities. As of December 23, 2001, neither Velez nor Arbane had a telephone number or other means of contacting Luis. This evidence is clearly insufficient to demonstrate that Luis Castillo Amen was a participant in or had knowledge of any criminal conspiracy, much less the one alleged here. We have long held that mere association with persons engaged in a conspiracy does not qualify someone as a member of the conspiracy. Furthermore, Velez’s fear that Luis might speak with the authorities fails to establish the requisite knowledge or agreement absent testimony as to what Luis might speak about.
Finally, at oral argument, the government argued for the first time that a “Rene” could be counted as a co-conspirator with Velez and Arbane. At trial, Velez testified that someone named Rene had a connection at a port in Mazatlan, Mexico and that Rene could send drugs from Mexico to the United States. However, rather than presenting evidence that Arbane and Rene were co-conspirators, the government’s evidence was to the contrary. In the transcript of the December 23, 2001 conversation between Arbane and Velez, it is evident that Arbane rejected the offer of working with Rene; when Velez mentioned that he had a friend who could help bring it, ostensibly referring to the ability of Rene to assist in bringing drugs across the border, Arbane told him to “[f]orget about that.” When Velez testified that Arbane showed him the storage compartments where he claimed they were planning to put drugs to be brought to Miami, he described the scheme as one in which “only Tony [Arbane] and I would be the only people involved.”
In short the evidence is insufficient to demonstrate that anyone other than a governmental informant was involved with Arbane in an agreement to import drugs into the United States. Although there is no doubt that Arbane had been involved in illegal conduct elsewhere, it was the government’s burden to prove, beyond all reasonable doubt, that there existed a specific agreement between the defendant and at least one or more culpable co-conspirators to import narcotics into the United States. The government failed to meet this burden.
Accordingly, Arbane’s conviction must be reversed.