United States v. Carlos Manuel Perez

Citations: 922 F.2d 782; 1991 U.S. App. LEXIS 1181; 1991 WL 2205Docket: 90-5195

Court: Court of Appeals for the Eleventh Circuit; January 30, 1991; Federal Appellate Court

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The Eleventh Circuit Court affirmed the convictions of Carlos Manuel Perez for drug possession and distribution under an aiding and abetting theory, despite his lack of direct involvement in the crimes. In August 1987, Miami Metro-Dade Police intercepted communications from Raul Plasencia's landline and cellular phones, suspecting drug trafficking. The surveillance revealed that Plasencia led a major cocaine distribution network, with Perez and David Carrazana serving as security personnel who conducted counter-surveillance and protected organization members.

On September 7, 1987, officers observed suspicious activity near Plasencia's residence, including Perez communicating with a van driver who reported police presence. Following this, Perez and Carrazana conducted searches for law enforcement, while Plasencia orchestrated a cocaine delivery to Miguel Diaz. Officers intercepted this transaction but did not make arrests, leading to confusion about their intentions. The next day, Plasencia sought to recover stolen cocaine, instructing Perez to bring a firearm as they searched for the missing drugs. The court's decision was based on the extensive evidence of Perez's involvement in the drug operation's security and communication efforts.

On September 14, 1984, law enforcement officers seized 86 kilograms of cocaine from Jesus Garcia, linked to Plasencia's drug organization. Plasencia sought to meet with associates Perez or Carrazana at a nearby restaurant, intending to visit Garcia. The following day, officers observed Carrazana and Perez transferring items from an apartment into Perez's truck, including boxes resembling those containing the seized cocaine. Although officers attempted to follow them, they lost sight due to Perez's evasive driving. 

Plasencia became aware of law enforcement surveillance, prompting him to alert Perez and others to flee. Perez left Miami just before officers arrived at his home, where a search revealed several loaded firearms. In August 1989, he was found living under an alias in Sarasota, Florida. 

On October 2, 1987, a federal grand jury indicted Perez for conspiracy to possess cocaine with intent to distribute and for three counts of possession with intent to distribute. He was convicted on all counts. Perez contested the sufficiency of the evidence for the possession charges, arguing that he did not significantly participate in the crimes on the dates in question and could not be deemed an aider and abettor since he was not involved until after the cocaine seizure.

To establish aiding and abetting, the government must demonstrate a substantive offense occurred, that Perez associated with the criminal venture, and that he performed an act furthering the crime. It is not necessary for Perez to have been present during the crime or to have been an active participant; the focus is on his shared unlawful intent with the actual perpetrators. The government does not need to prove that Perez was aware of the specific methods used by his co-conspirators.

Perez did not possess the cocaine in the illegal transactions, but substantial evidence indicated his intent to facilitate these transactions. Before the September 7, 1987, transaction, he acted as a sentry for Plasencia, conducting counter-surveillance and ensuring the area was safe before the delivery could proceed. This behavior established aiding and abetting for a narcotics violation. Similarly, on September 8 and 14, Perez was ready to intervene in emergencies, demonstrating his role as an enforcer. On September 8, he was instructed by Plasencia to arm himself and assist in resolving a confrontation regarding a drug sale. On September 14, he was directed to provide security after a robbery incident. The jury could reasonably conclude that Perez's actions were intended to support the drug venture's success.

Perez argued against his conviction, claiming one cannot be convicted of aiding and abetting if the principal no longer possesses the drugs. However, aiding and abetting includes actions to ensure the success of the crime, even after the drugs are delivered or if delivery is thwarted. The presence of force or threat of force that Perez provided was a critical factor in facilitating the transactions. The evidence of Perez's activities on the specified dates was adequate to uphold his convictions, as a reasonable jury could find he associated with Plasencia's drug efforts and intended to ensure their success.

The court affirmed Perez's convictions based on these findings.

Plasencia used the term 'caballo,' meaning 'horse' in Spanish, as slang for a firearm, as explained by Metro-Dade Police Sergeant Gonzalez. Perez argues that the district court erred by permitting this testimony and by not suppressing intercepted phone recordings. These issues were addressed in United States v. Carrazana, where it was determined that the district court did not err in admitting the recordings, and any error from the officer's testimony was deemed harmless. Under Title 18 U.S.C.A. Sec. 2, individuals who commit or assist in federal offenses are punishable as principals. Perez did not contest the aiding and abetting charge given to the jury but noted that the court rejected the request for a Pinkerton instruction, leaving his liability based solely on aiding and abetting. It is acknowledged that one cannot aid or abet a completed crime; however, Perez's actions were aimed at ensuring the success of a crime that had been temporarily interrupted by undercover police.