United States v. Londono

Citation: 175 F. App'x 370Docket: Nos. 05-1626-cr(L), 05-3459-cr(CON)

Court: Court of Appeals for the Second Circuit; March 14, 2006; Federal Appellate Court

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Defendants Pedro Duran Londono and Ingrid Zapata appeal their sentences for conspiracy to distribute heroin, with Londono receiving 65 months and Zapata 42 months. Londono contests the district court's denial of his motion for a downward departure under the Sentencing Guidelines due to diminished capacity, arguing clear error in this decision. The court found no causal link between Londono’s depression and his involvement in the conspiracy and asserted that prior to the Booker decision, such decisions by the district court were largely unreviewable unless there was a misapplication of the Guidelines or an illegal sentence. 

Zapata raises several claims, including a challenge to the district court's exclusion of her testimony regarding her hypothetical actions had she known the money was drug-related. The court ruled this testimony inadmissible as it did not constitute an out-of-court statement relevant under hearsay exceptions. Even if this ruling constituted an error, it was deemed harmless because Zapata was allowed to testify that she was unaware of the money's true purpose. 

Additionally, Zapata contested the admissibility of Western Union wire receipts, arguing they were hearsay. However, the court clarified that the receipts were admitted to show that a transaction took place and that someone using her name was involved, thus not falling under the hearsay rule.

A hotel guest registration card was deemed admissible as non-hearsay evidence in the case of United States v. Lieberman, showing that an individual registered at the hotel under the name on the card. The government also presented testimony from Carolina Rios indicating that Zapata wired money to Florida, supporting the inference that the receipts were connected to Zapata. The court ruled that records could be admitted to demonstrate actions taken under a defendant's name, provided there was additional evidence linking the defendant to that name. The receipts were considered relevant despite arguments for exclusion under Rule 403, as the government offered independent evidence of Zapata's actions, and no unfair prejudice was identified. Additionally, the district court permitted the use of Zapata's Pretrial Services file for impeachment after she denied signing money wire receipts. Previous rulings established that statements made to pretrial services could be used against a defendant for credibility purposes. Zapata's challenge to this practice was rejected, as the court was bound by prior rulings. Furthermore, Zapata's argument regarding Fabian Londono's Fifth Amendment rights was dismissed. Londono's guilty plea did not waive his privilege against self-incrimination before sentencing, and his potential testimony could have impacted his sentencing Guidelines. Lastly, a new claim regarding the government providing testimonial immunity to Londono was also rejected as it was raised for the first time on appeal.

Judicially-mandated immunity is typically not required by the government for the defense, except in extraordinary circumstances, which Zapata failed to demonstrate. He did not provide evidence of discriminatory use of immunity or that Londono felt compelled to invoke his Fifth Amendment rights. The district court acted within its discretion by sustaining government objections during defense counsel’s summation, limiting speculative statements not grounded in evidence, such as assertions regarding witness immunity. Defense counsel's claim regarding the absence of certain forensic evidence was also overreaching, as he suggested the government was at fault for not procuring it. 

Zapata's challenge to the conscious avoidance charge given to the jury was rejected. The court noted that such a charge is appropriate when a defendant claims ignorance, but evidence suggests deliberate avoidance of knowledge. Key evidence included Zapata's contacts with individuals involved in drug operations, the large amounts of cash she transported, and her wire transfers to Florida. Thus, a rational juror could conclude she was aware of the high probability of drug-related activity. Consequently, the judgments of the district court are affirmed.