CARLOS DE LA TORRE, PETITIONER V. UNITED STATES OF AMERICA No. 90-5153 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eleventh Circuit Brief For The United States In Opposition OPINION BELOW The judgment order of the court of appeals (Pet. App. I) is unpublished. JURISDICTION The judgment of the court of appeals was filed on March 20, 1990. A petition for rehearing was denied on May 16, 1990. The petition for a writ of certiorari was filed on July 16, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the district court committed plain error in admitting a statement by petitioner's coconspirator. STATEMENT After a jury trial in the United States District Court for the Southern District of Florida, petitioner was convicted of conspiracy to import cocaine, in violation of 21 U.S.C. 963, and of importation of cocaine, in violation of 21 U.S.C. 952. He was sentenced to 15 years' imprisonment, to be followed by five years' supervised release. The court of appeals affirmed. Pet. App. I. The evidence at trial showed that petitioner participated in a conspiracy, led by codefendant Hugo Ceballos, to import cocaine into the United States from Colombia. Initially, Ceballos planned to fly the cocaine from Colombia to the Bahamas, and then to bring the cocaine to the United States by boat. Gov't C.A. Br. 5-6. In 1987, Ceballos instead decided to use Cuba as the transfer point. In April 1987, the Coast Guard intercepted approximately 200 pounds of cocaine in the Florida Keys that Ceballos had imported from Colombia by way of Cuba. Gov't C.A. Br. 6-7. In May 1987, Ceballos arranged another importation of cocaine from Colombia through Cuba. Gov't C.A. Br. 8-9. On November 28, 1987, United States Customs Agents boarded petitioner's boat, the KIT KAT, while it was moored behind petitioner's house in Islamorda, in the Florida Keys. As the agents boarded the boat, petitioner left it. On board the KIT KAT, the agents found approximately 98 kilograms of cocaine. Two other members of the conspiracy were arrested on the boat. In petitioner's house, the agents discovered an additional 119 kilograms of cocaine. Gov't C.A. Br. 9. /1/ Six weeks later, in January 1988, Ceballos told an undercover officer that he owned the cocaine that had been found in petitioner's house and boat. Ibid. Petitioner did not object when evidence of this statement was introduced at trial. Gov't C.A. Br. 34. Petitioner was arrested in February 1988. At the time of his arrest, he told his wife, "I told those guys we were going to get in trouble." Gov't C.A. Br. 24. The court of appeals summarily affirmed in an unpublished judgment order. Pet. App. I. ARGUMENT Petitioner contends (Pet. 6-12) that Ceballos' statement to undercover officers that he owned the cocaine found aboard the KIT KAT should not have been introduced against petitioner because there is no evidence, other than Caballos' statement itself, that links him to a conspiracy to import or to any importation of cocaine. In addition, he argues (Pet. 7-8) that the evidence presented at trial, with or without Ceballos' statement, was insufficient to support his conviction for importation of cocaine. These claims are without merit. 1. Petitioner did not object to the introduction of Ceballos' statement at trial and thus cannot prevail unless its admission was plain error. See Fed. R. Crim. P. 52(b). To establish plain error, petitioner must show a "particularly egregious" error that "seriously affect(s) the fairness, integrity or public reputation of judicial proceedings." United States v. Young, 470 U.S. 1, 15 (1985) (internal quotations omitted). Reversals for plain error should occur only when necessary to avoid a miscarriage of justice. See United States v. Frady, 456 U.S. 152, 163 n.14 (1982). Petitioner cannot meet this standard of error. A co-conspirator's statement is admissible under Federal Rule of Evidence 801(d)(2)(E) if the government shows by a preponderance of the evidence that a conspiracy existed between the declarant and the person against whom the statement is sought to be admitted and the statement was made during the course of, and in furtherance of, the conspiracy. See Bourjaily v. United States, 483 U.S. 171, 175 (1987). In determining whether a conspiracy existed and whether the defendant took part in the conspiracy, the district court may evaluate all non-privileged evidence, including the statement sought to be admitted. Id. at 180. When all the government's evidence is examined in conjunction with Caballos' statement, it is clear that the existence of a conspiracy was shown by a preponderance of the evidence. There was an abundance of evidence that Ceballos was involved in a conspiracy with others to import cocaine. Ceballos's statement, even aprt from any other evidence that petitioner conspired with the others, was sufficient in itself to establish the requisite connection between petitioner and this conspiracy. Thus, under Bourjaily, the court's decision to admit Caballos' statement under Rule 801(d)(2)(E) was clearly correct. There was no error, much less a plain error. Petitioner argues that this Court should review the court of appeals' decision to resolve an issue left open in Bourjaily: whether a district court may rely solely on the statements of coconspirators to determine whether a conspiracy exists. Petitioner claims that the court of appeals' decision conflicts with the decision in United States v. Gordon, 844 F.2d 1397 (1988), in which the Ninth Circuit, relying on its pre-Bourjaily cases, held that the government must introduce some evidence independent of the coconspirator statements to obtain admission of those statements. The court of appeals' decision in this case does not conflict with Gordon or any other decision. /2/ Independent evidence, apart from Ceballos' statement, supported the existence of the conspiracy and petitioner's participation in it. The evidence showed that Ceballos and the other conspirators obtained their cocaine in Colombia, flew it to Cuba, and imported it into the Florida Keys by boat. Two other members of the conspiracy were arrested on petitioner's boat, moored behind his house, when Customs agents boarded it and seized the cocaine. Petitioner used an alias to purchase the KIT KAT and a house in the Florida Keys, and was present on the boat with other conspirators shortly before 100 kilograms of cocaine were found on board. An additional 110 kilograms were found in his house. Finally, his own admission that he told "those guys that we were going to get in trouble" is evidence that he conspired with others to import cocaine. In sum, the government did not rely on Ceballos' statements alone to support the existence of a conspiracy or to show petitioner's membership in it. The question left open in Bourjaily is thus not presented. 2. Because the statement was properly admitted, it may be used to support petitioner's conviction. When viewed in the light most favorable to the government, see Glasser v. United States, 315 U.S. 60, 80 (1942), the statement, together with the evidence that petitioner associated himself with the conspiracy to import cocaine, supported petitioner's conviction on both counts. Petitioner's claim to the contrary (Pet. 6-7) rests on the assertion that there was no evidence to show that he was involved in any importation activities. But the evidence showed that petitioner owned a boat from which cocaine was being unloaded, was present while the cocaine was unloaded, and that petitioner owned the house in the Keys to which the cocaine was transferred. The evidence further showed that the conspiracy used boats to bring the cocaine from Cuba to the Florida Keys, that the cocaine found on the KIT KAT belonged to the conspiracy, and that members of the conspiracy were arrested on the KIT KAT. From this evidence, the jury could reasonably conclude that petitioner was involved in importation activities. Consequently, the evidence sufficed to support petitioner's convictions on both counts, and review of this factbound question is unnecessary. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Acting Assistant Attorney General J. DOUGLAS WILSON Attorney SEPTEMBER 1990 /1/ Petitioner used the alias Jose Montiel to register the KIT KAT and to purchase the house. Gov't C.A. Br. 9 n.5. /2/ Petitioner also asserts (Pet. 9-10) that other courts of appeals have required evidence independent of the offered statement to support admission of coconspirator statements. In each of the cases petitioner cites, however, the court found that independent evidence supported the admission of the statement and thus did not reach the issue left open in Bourjaily. See United States v. Dworken, 855 F.2d 12, 25 (1st Cir. 1988); United States v. Daly, 842 F.2d 1380, 1386 (2d Cir.), cert. denied, 109 S. Ct. 66 (1988); United States v. Leavis, 853 F.2d 215, 219-220 (4th Cir. 1988); United States v. Zambrano, 841 F.2d 1320, 1346 (7th Cir. 1988); United States v. Garbett, 867 F.2d 1132, 1134 (8th Cir. 1989).