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United States v. Echeverri

argued: May 3, 1988.

UNITED STATES OF AMERICA
v.
ECHEVERRI, ELKIN A., APPELLANT



On Appeal From the United States District Court For the District of New Jersey (Camden), Criminal Action No. 86-99.

Higginbotham, Stapleton, and Greenberg, Circuit Judges.

Author: Stapleton

OPTION OF THE COURT

STAPLETON, Circuit Judge:

Appellant Elkin Echeverri was convicted on five drug-related charges after a three-month trial that involved seven other defendants. Echeverri contends that his convictions cannot stand because (1) the district court failed to give a requested instruction to the jury concerning the need for unanimous agreement on the acts that constituted a "continuing series" of narcotics violations for purposes of the Continuing Criminal Enterprise ("CCE") count, (2) the district court on two occasions erroneously admitted evidence of other, uncharged, criminal conduct, and (3) the RICO predicate acts found by the jury do not constitute a pattern as a matter of law.

I.

In reviewing Echeverri's convictions, we are required to view the evidence in the light most favorable to the government. See, e.g., Burks v. United States, 437 U.S. 1, 17, 57 L. Ed. 2d 1, 98 S. Ct. 2141 (1978); Glasser v. United States, 315 U.S. 60, 80, 86 L. Ed. 680, 62 S. Ct. 457 (1942). Our discussion of the facts reflects this obligation.

Echeverri immigrated from Colombia to the United States in 1969. In 1977, he established a substantial drug distribution business having its headquarters in Elizabeth, New Jersey, at the North Cross Towers apartments. Elkin and his brother Edgar lived in the same building at North Cross Towers, the records of the business were kept there, drugs were stored there, and many drug transactions occurred there. The Echeverri organization operated in five states, New Jersey, California, Florida, Texas, and Colorado.

Echeverri's organization flourished from 1977 until Elkin Echeverri's brother Edgar was murdered in New York in 1982. Investigation of the murder led law enforcement authorities to Edgar Echeverri's apartment at North Cross Towers. There they discovered drugs, drug paraphernalia, $45,000 in cash, and notebooks containing records of a substantial drug distribution business that made frequent references to "Elkin".*fn1 Thereafter, the drug operation was conducted at a reduced level until August of 1984.

James Scheidemann was the superintendent at North Cross Towers and was the conduit through which most of the New Jersey transactions described in the indictment passed. James Scheidemann was also the operator of P.S. Mailers, a legitimate business involved in the preparation of postal mailings but which also served as a storage area for cocaine sent to New Jersey from Colombia or Miami.

Ronald Scheidemann, James's brother, and Ronald's wife Kathleen were major distributors of the cocaine imported by the organization over the course of the conspiracy. Ronald Scheidemann's associates included Dennis and Susan Commorato, of Dallas, Texas, to whom he supplied cocaine and quaaludes.

Jairo Garcia came to the United States with Edgar Echeverri and served Edgar and Elkin as a courier making runs between Miami and New Jersey with either cocaine or money. Julio Torres-Gomez, the uncle of James and Ronald Scheidemann, also served as a courier. On one occasion he transported several kilograms of cocaine from Miami to New Jersey and was paid $5,000 for the trip.

At trial, the government relied heavily on testimony elicited from four unindicted co-conspirators who had received immunity or other benefits. The first of these witnesses, Mario Alvarez, testified that he had encountered Elkin Echeverri during a trip to Miami in 1976, one year before the commencement of the charged conspiracy, at a house where both had gone to purchase substantial quantities of cocaine for distribution. Alvarez testified, over Echeverri's objection, that Echeverri was preparing at that time to start his own drug organization, having become dissatisfied with the "Valencia" organization for which he had been working. In particular, Alvarez testified that Echeverri was seeking to establish an arrangement with the cocaine source pursuant to which he could purchase cocaine on credit to be sold on his own account, and that Echeverri offered Alvarez and other associates in the Valencia organization positions in his new organization. Finally, Alvarez testified that in three transactions with Echeverri in 1979, he purchased quantities of cocaine ranging from approximately one-half kilograms to three kilograms and paid from $20,000 to $120,000.

Kathleen Scheidemann, Ronald Scheidemann's wife, testified at length about the narcotics transactions that she and her husband had participated in on behalf of the Echeverri organization, including one involving the receipt of a kilogram of cocaine that had been delivered to Echeverri and several of his codefendants in spring of 1982. She testified that during the time she resided with her husband, cocaine and quaaludes were stored at her apartment in Springfield, New Jersey. On one occasion, her husband showed her a black case in which several kilograms of cocaine and $260,000 were stored. She also testified to seeing quantities of cocaine stored in the basement of North Cross Towers and observing five football size shipments of cocaine being delivered to P.S. Mailers in Morristown, New Jersey. She further testified about trips to Florida that she and Ron had made in 1981 and 1982. On two occasions, the couple transported cocaine from Florida to New Jersey.

Juan Castro described the "California branch" of the Echeverri organization. Castro testified that he had been introduced to Echeverri by a mutual acquaintance, and that he had rented two apartments for Echeverri in Los Angeles, one used for loving quarters and the other for storage of cocaine. According to Castro, he had made monthly flights between Florida and Los Angeles for Echeverri over a period of more than a year, each time ferrying from four to six kilograms of cocaine to Los Angeles and returning to Miami with money in amounts ranging from $60,000 to $485,000.

Finally, a fourth co-conspirator, Stanley Buglione, testified concerning three drug purchases he made from James Scheidemann at P.S. Mailers. He also testified about an incident involving Edgar Echeverri's apartment at North Cross Towers. Following Edgar's death, Elkin and James paid Buglione $2,000 to break into Edgar's apartment to retrieve documents and drug paraphernalia, as well as personal items belonging to Elkin. Elkin drew Buglione a diagram designating where everything that he wanted was located, and Buglione broke into the apartment and removed the specified items.

Echeverri took the stand in his defense and testified that he knew his brother was a cocaine dealer, that he himself had never been involved with drugs, and that the "Elkin" referred to in Edgar's notebook was someone else. He indicated that he had been in the business of buying and selling clothes, cosmetics, and electronic appliances. His purchasing caused him to travel about the country and he regularly exported and imported goods to and from Colombia. He admitted that, with one exception, he knew the alleged co-conspirators, but denied being in a drug business with them. Finally, he admitted having hired Buglione to break into Edgar's apartment but denied that he had asked him to retrieve drug paraphernalia.

In rebuttal, the government tendered testimony concerning a February 1986 search of a Los Angeles apartment leased to Echeverri. Over Echeverri's objection, the district court permitted Officer David Dick to testify that the searching officers found four kilos of cocaine and personal papers addressed to Echeverri and his girlfriend Rosa Cobb, both in their own names and in the alleged aliases "Anthony Razzeti" and "Patricia Cariolli."

The jury convicted all but one of the defendants on one or more counts.*fn2 Echeverri was convicted of (1) a Racketeer Influenced and Corrupt Organization (RICO) conspiracy; (2) a substantive RICO offense, in violation of 18 U.S.C. §§ 1962(c) and 1962(d); (3) operating a Continuing Criminal Enterprise ("CCE") between January, 1977 and August, 1984 contrary to 21 U.S.C. § 848 ("kingppin" statute); (4) conspiracy in violation of the federal drug laws, as prohibited by 21 U.S.C. § 846; and (5) possession of cocaine with intent to distribute, as prohibited by 21 U.S.C. § 841(a)(1). Echeverri's post-trial challenges to these convictions in the district court were rejected.

Echeverri was sentenced on the CCE conviction to a 25-year term, without parole or probation, and a $25,000 fine. He was sentenced to a term of 20 years and a $25,000 fine on each of the RICO counts, and to 15 years and a $25,000 fine on each of the drug conspiracy and possession counts. All other sentences were made to run concurrently with his 25-year CCE sentence.*fn3

II.

In support of the CCE count, the government offered testimony concerning a plethora of drug-related activity.*fn4 At the conclusion of the evidence, Echeverri argued that there could be no conviction on this count unless the members of the jury reached unanimous agreement on each drug offense that they believed had occurred and had constituted a "continuing series" of violations of the federal narcotics laws. In order to assure that the jury ...


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