United States v. Alberto Bravo Griselda Blanco Bruno Bravo Francisco A. Armedo-Sarmiento Jose A. Cabrera-Sarmiento Edgar Restrepo-Botero Leon Velez Bernardo Roldan Arturo Gonzalez Jorge Gonzalez Libardo Gill Ruben Dario Roldan Marconi Roldan Carmen Gill Carlos Marin Beatrice Gonzalez Nina Nino Oscar Perez Ernesto Guello Julian Carrion Arco Gilberto Rojas Guillermo Palacios Arturo Zapata James Mario Gaviria Gabriel Correa Alvaro Cabrera-Sarmiento Antonio Romero Elsa Cabrera Cesar J. Riveros-Rincon William Rodriguez-Parra Olegario Montes-Gomez Ramiro San Cocho Humberto Sandoval Alberto Luis Herrara Rhonda Sue Shirah William Andries Luis Estrada, Gaston Robinson
Docket: 496
Court: Court of Appeals for the Second Circuit; November 23, 1993; Federal Appellate Court
Defendant-appellant Gaston Robinson appeals a conviction from the United States District Court for the Southern District of New York, following his recapture after being a fugitive for over fifteen years during which he absconded from his trial. The trial proceeded in his absence, resulting in conviction alongside co-defendants on January 23, 1976, for conspiracy to manufacture, import, possess with intent to distribute, and distribute cocaine and marijuana, as indicted on April 30, 1975. Upon recapture, the district court declined to address Robinson's postconviction motions for acquittal, a new trial, and to supplement the trial record, determining that his prolonged absence constituted a waiver of these rights. On appeal, Robinson contests both the refusal to consider his motions and the imposed sentence. The court affirms the district court's decisions. The case references prior related opinions, indicating ongoing legal scrutiny of matters arising from this indictment. Robinson's trial featured key testimony from a cooperating witness and a former restaurant maitre d'hotel.
Andries testified that Robinson attended a November 1973 meeting concerning the shipment of 28 kilos of cocaine and 5,000 pounds of marijuana arriving on the Providence Trader. The conspirators successfully intercepted the cargo after an initial attempt failed, offloading it to a 23-foot courier boat in Miami, which Robinson was hired to navigate. During this time, Robinson inquired about the cargo and was informed it included 5,000 pounds of marijuana. Andries paid Robinson a total of $40,000 for his services, with $20,000 designated for the trip and an additional $20,000 specifically for retrieving cocaine. Andries later testified that he believed Robinson was unaware of the cocaine's presence until it was picked up.
Additionally, Fernandez testified about Robinson's association with Cabrera, who was involved in drug importation. He noted that Robinson's familiarity with ocean travel made him crucial for a trip to retrieve a large load from Colombia, which Cabrera confirmed was successful, revealing cocaine and marijuana afterward.
On November 24, 1975, following the testimony of Andries and Fernandez, Robinson failed to appear in court after his bail was increased from $50,000 to $100,000. A bench warrant was issued for his arrest, and his bail was further raised to $1,000,000. The trial continued in Robinson's absence, and his bail was forfeited on December 1, 1975. The defendants, including Robinson, moved to dismiss the second count of the indictment for lack of evidence relating solely to marijuana, which the court granted. On January 23, 1976, the jury convicted all twelve defendants on the first count, but sentencing for Robinson was postponed. He remained at large until his capture by the U.S. Coast Guard on May 23, 1991, aboard the Endeavor I, carrying approximately 2,000 kilograms of cocaine.
Robinson sought acquittal, a new trial, and record supplementation following his recapture, arguing insufficient evidence for his conviction, improper amendment of the indictment, and prejudicial variance between the charges and the evidence presented. He referenced case law requiring the government to choose between sentencing him for marijuana conspiracy or retrying him on the cocaine conspiracy charge, and asserted his right to a hearing to reconstruct missing trial transcript portions, which could affect the outcome of a new trial. Judge Cannella, invoking the 'disentitlement doctrine,' declined to consider Robinson's motions, citing the need to deter fugitives and the potential prejudice to the prosecution due to lost evidence and diminished witness memories over Robinson's fifteen-year absence. Ultimately, Robinson was sentenced to fifteen years in prison and a $25,000 fine. On appeal, Robinson argued that the district court abused its discretion by not ruling on his motions and improperly sentenced him without considering the proven facts or making required findings under procedural rules. The appeal referenced a precedent case where a similar refusal to hear post-trial motions was challenged.
Sacco escaped custody during a motion hearing in the Middle District of Florida, where his motion was denied on the merits in the District of Maryland while he was absent. A codefendant filed a similar motion in the Southern District of New York. Although Sacco was apprehended before this hearing, his request to reinstate his motions was denied due to his prior absence, and his post-trial motions were also denied for failing to appear. The court affirmed this decision, emphasizing that a defendant who has escaped from custody cannot utilize court resources for claims. The district court has discretion to refuse hearing post-conviction claims from such fugitives, a principle supported by various precedents. This discretion is applicable in similar contexts, such as civil actions against fugitives. While disentitlement issues are more common in appeals, they were also addressed in the Supreme Court case Ortega-Rodriguez v. United States, where a defendant's post-conviction motions were impacted by his escape prior to sentencing.
The Supreme Court vacated and remanded the Eleventh Circuit's dismissal of Ortega-Rodriguez's appeal, emphasizing that a defendant's fugitive status must have a connection to the appellate process to justify dismissal under the disentitlement rule. The Court highlighted concerns regarding delays in appellate proceedings due to a defendant's escape, noting that such delays could prejudice the government in preparing for retrial. However, it stated that in cases of appeals based on insufficient evidence, retrial is not permissible after reversal, thus negating the rationale for dismissal. The Court also addressed complications arising from a co-defendant's flight, stating that if a fugitive's absence hinders the consolidation of appeals, dismissal may be warranted. It affirmed that defendants fleeing before sentencing retain the right to appeal sentencing errors but lose the right to appeal convictions. The Court concluded that Robinson's prolonged absence severely impaired the government's ability to prepare for any retrial, and thus, the district court acted within its discretion by refusing to consider Robinson's claims of trial error. Robinson was deemed disentitled to present these claims, with the exception of his argument regarding the sufficiency of evidence for his conviction, which, if successful, would eliminate the need for a new trial, thereby not affecting the government’s interests.
Refusal to entertain the claim could be justified to avoid multiple appeals, especially considering the resolution of co-defendants' appeals nearly two decades prior. However, the merits of the insufficiency claim will be addressed without setting a broad precedent, similar to the approach in United States v. Baccollo, where an appeal was dismissed due to its frivolity. Robinson's assertion that the government must choose between sentencing options under Orozco-Prada is deemed a reviewable sentencing error. Conversely, claims regarding improper indictment amendments, prejudicial variances in evidence related to count one, and the request for a Selva hearing about missing trial transcript portions are categorized as trial errors. These claims are not permissible for consideration in either the district court or on appeal.
Robinson contends he only participated in the marijuana importation and was unaware of any cocaine involvement. However, conflicting testimony indicates he had foreknowledge of the cocaine transfer, which must be viewed favorably toward the government, as established in relevant case law. The jury could reasonably conclude that Robinson had knowledge of the cocaine involvement, especially since he actively transported the cocaine ashore and accepted payment. The conspiracy was ongoing until the conspirators received their financial benefits, as clarified in United States v. Fitzpatrick.
Robinson's first sentencing claim references the case Orozco-Prada, where a defendant was convicted of a narcotics conspiracy that allowed for dual sentencing under different statutory provisions. The relevant sections differentiate between narcotics like cocaine and non-narcotics like marijuana, with varying maximum penalties. The district court in Orozco-Prada sentenced the defendant under the more severe provision without a clear jury determination regarding the type of conspiracy, which led to the ruling that the government must choose a correct sentencing framework or grant a new trial.
In contrast, Robinson's case involved a direct charge of cocaine conspiracy under 21 U.S.C. Sec. 841(b)(1)(A), while the marijuana conspiracy charge was dismissed and not presented to the jury. Therefore, Robinson's sentence does not exceed the statutory limits applicable to his conviction.
Robinson's second argument challenges the accuracy of information in his presentence report, asserting that the district court relied on incorrect details about his involvement. He objected to characterizations in the report that labeled him a "willing and integral member" of the conspiracy. However, the sentencing judge stated he would consider the evidence presented without strictly adhering to the prosecution's narrative. The judge ultimately credited testimony that Robinson was unaware of the cocaine's presence until its loading.
According to Federal Rule of Criminal Procedure 32(c)(3)(D), the court is required to address any factual inaccuracies raised by the defendant in the presentence report. The judge's acceptance of Robinson's interpretation regarding the cocaine incident complied with this requirement. Given the lack of statutory violations or non-compliance with sentencing rules, and recognizing the limited review scope for pre-Guidelines sentences, the court found no grounds to overturn Robinson's sentence.
The judgment of conviction is affirmed. A third count involved two codefendants charged with using and carrying a firearm during the commission of the crimes in the first two counts, violating 18 U.S.C. Sec. 924(c). Two codefendants of Robinson fled and were tried in absentia, while nine defendants who did not flee subsequently appealed; their convictions were upheld except for Libardo Gill and Carmen Gill, whose convictions were reversed and remanded for retrial, although the government chose not to pursue a retrial. An indictment against Robinson related to contraband is pending in the Southern District of New York. Sacco faced extortion charges in multiple districts and claimed all prosecutions were based on the same illegally seized evidence. His post-trial motions were denied, with the court referencing the Maryland district court's ruling on a similar motion and noting Sacco's failure to appear constituted a waiver of his rights in the proceedings.
