Caseflicks

Court of Appeals for the Fifth Circuit • 1980

United States v. Angel Oscar Rosado-Fernandez and Jose Eligio Borges, A/K/A Jose Velez

614 F.2d 50 | 1980 U.S. App. LEXIS 19585

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Takeaway

In short, this case confirms that a defendant who organizes and joins a drug-sale conspiracy may be liable both for the conspiracy and for a coconspirator's foreseeable possession of the drugs, even without personally handling them.

Background

DEA Agent John Lawler, posing as a cocaine buyer from New York, approached Jose Eligio Borges on January 3, 1979, seeking to buy three kilograms of cocaine. Borges quoted a price, said delivery could be arranged, and later brought Lawler to a restaurant to meet Angel Oscar Rosado-Fernandez. In Borges's presence, Rosado said that he had forty kilograms available and arranged for delivery.

The following day, Rosado and Lawler spoke by recorded telephone calls about the delayed delivery and a price of $46,000 per kilogram. They later met at codefendant Nelson Garcia's home, where a white powder was produced and field-tested as cocaine. During the arrests, another codefendant dumped the cocaine into a swimming pool, but agents recovered samples from the pool and from inside the house. Laboratory testing found cocaine in all samples.

A jury convicted Borges and Rosado of conspiracy to possess cocaine with intent to distribute and possession with intent to distribute cocaine. Rosado was also convicted of using a communication facility in committing a drug felony. Borges challenged the sufficiency of the evidence for conspiracy and possession, while Rosado argued that the Government had not proved the substance was the illegal “L” isomer of cocaine. The Fifth Circuit affirmed the convictions and remanded solely to correct a clerical error in Rosado's judgment and commitment order.

Issues

Issue #1

Whether the evidence was sufficient to prove that Borges knowingly joined a conspiracy to sell cocaine to Agent Lawler.

Holding

Yes. The evidence supported the jury's finding that Borges knowingly participated in the cocaine-distribution conspiracy.

Reasoning

A conspiracy requires proof that the defendant knew of the unlawful agreement and intended to join or associate himself with its objectives. Although the Government must prove knowledge, participation, and criminal intent, those elements may be inferred from circumstantial evidence showing a shared purpose and plan. Under 21 U.S.C. § 846, unlike some conspiracy statutes, the Government need not allege or prove an overt act.

Borges was not a mere bystander or introducer. He negotiated with Lawler after learning that Lawler wanted three kilograms of cocaine, quoted a price, arranged a later meeting, brought Rosado to meet Lawler, and remained present while Rosado discussed supplying the drugs. Those actions supported the conclusion that Borges organized and joined the venture to sell cocaine.

Borges was not relieved of responsibility merely because Rosado ultimately obtained cocaine from Garcia rather than from the source Borges may initially have expected. Conspirators need not know every participant or every operational detail, so long as the evidence shows that they understood the conspiracy's general purpose and scope. Borges knew Rosado would obtain cocaine from one of Rosado's sources for Lawler, which was enough to establish his participation in the single charged conspiracy.

Issue #2

Whether Borges could be convicted of possession with intent to distribute when he never physically possessed the cocaine.

Holding

Yes. Borges was responsible for Rosado's possession because it was a substantive offense committed in furtherance of their continuing conspiracy.

Reasoning

The record established that Rosado possessed the cocaine involved in the planned sale. Once a conspiracy and a defendant's knowing participation in it are proved beyond a reasonable doubt, the Pinkerton doctrine permits conviction of that defendant for substantive crimes committed by coconspirators in furtherance of the conspiracy.

Because Rosado's possession of cocaine was an act advancing the agreed sale to Lawler, Borges could be held liable even without actual physical control of the drugs, personal participation in the final transaction, or knowledge of every detail of that transaction.

Issue #3

Whether the Government failed to prove that the seized substance was illegal “L” cocaine rather than allegedly legal “D” cocaine.

Holding

No. The record adequately established that the substance was illegal cocaine, and Rosado accepted a stipulation that the chemist would identify it as “L” cocaine.

Reasoning

When codefendant Garcia argued that the Government had not shown the powder to be the “L” isomer, the prosecutor represented that the chemist's polarimeter test identified it as “L” cocaine. The trial court offered to recall the chemist, and defense counsel stipulated that the chemist would so testify. Rosado did not object and therefore tacitly adopted that stipulation.

Even apart from the stipulation, the chemist's testimony sufficiently supported the finding that the substance was illegal cocaine. He analyzed the samples through gas-liquid chromatography, mass spectrometry, and polarimetry, and explained that the polarimeter test could distinguish the “L” and “D” forms by their optical rotation. His expert opinion was that the tested exhibits contained cocaine.

Issue #4

Whether Rosado's sentence required correction despite the affirmance of his convictions.

Holding

Yes. The case was remanded for the district court to correct a clerical inconsistency in the judgment and commitment order.

Reasoning

The written judgment imposed a five-year term on the conspiracy count but then stated that Rosado's three-year special-parole term would begin after an “initial sentence of THREE (3) YEARS.” That reference conflicted with the five-year sentence stated in the same order and with the five-year sentence imposed on the possession count.

The Fifth Circuit treated the three-year reference as an obvious clerical error rather than a basis to disturb the convictions or the intended sentence. It therefore affirmed the convictions and remanded only so that the district court could correct the judgment.