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United States v. Borda

United States Court of Appeals, District of Columbia Circuit

February 21, 2017

United States of America, Appellee
v.
Christian Fernando Borda, also known as Tony, Appellant

          Argued November 8, 2016

         Appeals from the United States District Court for the District of Columbia (No. 1:07-cr-00065-1) (No. 1:07-cr-00065-2)

          Elizabeth A. Brandenburg argued the cause for appellant Borda. With her on the briefs was Marcia G. Shein.

          Carmen D. Hernandez, appointed by the court, argued the cause and filed the briefs for appellant Alvaran-Velez.

          Kirby A. Heller, Attorney, U.S. Department of Justice, argued the cause and filed the brief for appellee.

          Before: Tatel and Wilkins, Circuit Judges, and Ginsburg, Senior Circuit Judge.

          OPINION

          Wilkins, Circuit Judge

         Appellants Christian Fernando Borda and Alvaro Alvaran-Velez challenge the outcome of a jury trial finding them guilty under 21 U.S.C. §§ 959, 960, 963 of conspiracy to distribute five kilograms or more of cocaine knowing and intending that the cocaine would be unlawfully imported into the United States. In support of their challenge, Appellants allege that the District Court committed numerous procedural errors, including improper evidentiary admissions and exclusions, insufficient jury instructions, Brady and Napue violations, improper closing arguments, and sentencing errors. Appellants further maintain that there was insufficient evidence to permit a rational juror to find guilt beyond a reasonable doubt. For the following reasons, we affirm Appellants' convictions but remand for the District Court to resentence Mr. Alvaran.[1]

         I.

         On December 9, 2010, Appellants Borda and Alvaran were convicted of conspiracy to distribute at least five kilograms of cocaine with the intent or knowledge that the cocaine would be unlawfully imported into the United States. At trial, Appellants did not contest that they engaged in drug trafficking, but argued that they lacked the knowledge or intent to import the drugs into the United States. The conspiracy at issue in this case involved three separate transactions: (1) Palm Oil #1; (2) Palm Oil #2; and (3) the El Chino Load. The evidence presented at trial, taken in the light most favorable to the government, see United States v. Bryant, 523 F.3d 349, 353 (D.C. Cir. 2008); United States v. Washington, 12 F.3d 1128, 1135-36 (D.C. Cir. 1994), is as follows.

         A.

         The first Palm Oil deal occurred between January 2005 and May 2005 and involved the transportation of approximately 1, 553 kilograms of cocaine hidden in drums of palm oil from Cartagena, Colombia to Puerto Progreso, Mexico. A Mexican drug trafficker named Raul Valladares ("Junior") received the cocaine in Puerto Progreso, a small Mexican port on the eastern side of the country, in mid-2005. Junior transported the cocaine from Puerto Progreso to Monterrey, an inland city located approximately one hour and forty-five minutes (200 kilometers) by car from the United States border. According to the evidence, Monterrey lacked sufficient demand for a load of cocaine as large as the Palm Oil #1 deal. Beginning in August 2005, Junior began working as an informant for the United States Drug Enforcement Administration ("DEA").

         In exchange for transporting the cocaine to Monterrey, Junior charged Appellants an 18% fee. The transportation fee was calculated based on the quantity of cocaine, not the total price (i.e., Junior received payment in kilograms of cocaine, not money). The usual transportation fee for moving cocaine across the United States border is 40-45%. After selling the cocaine, Junior was responsible for paying Appellants $9, 100 per kilogram of cocaine, which is the typical price for cocaine in Monterrey. For cocaine sold in the United States, the usual price increases to $14, 000 or $15, 000 per kilogram. Appellants expected Junior to pay for the cocaine within ten days of receipt.

          Junior, however, was unable to reimburse Appellants within the specified time period. In light of this development, Mr. Alvaran met with Camilo Suarez, another confidential informant, on June 15, 2005, to discuss Junior's failure to pay. At this meeting, Mr. Alvaran noted that Junior had started to send "partials" across the border. Despite the successful sale of cocaine, Appellants still had not received payment. Mr. Alvaran commented that Monterrey was full of merchandise (i.e., cocaine), but it was not selling as fast as they had predicted. Junior later explained that he had already begun selling the cocaine at market price and would be able to start delivering money in Monterrey.

         Subsequently, on July 20, 2005, Mr. Borda met with Mr. Alvaran and Mr. Suarez to discuss Junior's outstanding payments. Mr. Suarez defended Junior's payment delay by explaining that the "market went bad because the border got harder" for Junior. Appellants then discussed the conditions at the border in greater detail, including new police officers and increased inspections. Mr. Borda admitted that he understood Junior's difficulties because he had previously been a drug dealer in the United States. In particular, Mr. Borda acquired first-hand knowledge of the U.S. drug market while living in New York and Florida, and was previously convicted in the Southern District of Florida for conspiracy to possess with the intent to distribute cocaine back in August 1998. Nonetheless, Mr. Borda expressed frustration at Junior's untimely payments and complained that Junior was not paying the negotiated price. Mr. Borda referred to the fact that Junior had taken the cocaine across the border, sold it at the higher U.S. price, brought the money back to Monterrey, and paid Appellants the Monterrey price for cocaine.

         At trial, Mr. Suarez testified that all 1, 553 kilograms of the Palm Oil #1 deal were eventually transported into the United States, with at least 200 kilograms trafficked to New York. However, a substantial period of time existed when Mr. Suarez did not know what Junior had done with the cocaine. Additionally, Mr. Suarez noted that Mr. Borda previously refused on two occasions to transport cocaine into the United States because he did not want the "responsibility" or "headache."

         By October 2005, Junior had paid Mr. Borda approximately $6 million. Junior's payments were all in United States currency, mostly in $20 bills. However, the testimony at trial established that the money received for the cocaine was laundered through a money exchange house before being distributed to Appellants. Once the proceeds were received in Monterrey, Mr. Alvaran arranged for the cash to be transported to Mexico City. Mr. Alvaran's secretary, Mr. Lucas, would pick the money up in Mexico City and deliver it to Juan Jaime Montoya-Estrada, another co-conspirator. The money was then moved to either Mr. Alvaran's apartment or Mr. Montoya's apartment, where Mauricio Cruz counted the proceeds. The ledgers kept by Appellants and Mr. Montoya show that Junior paid between $153, 000 and $1, 020, 000 every couple of weeks between June 17, 2005 and August 4, 2005.

         B.

         Following the shipment of the first Palm Oil load, but before Junior successfully paid for all of the cocaine, Appellants and Mr. Suarez initiated negotiations for a second Palm Oil deal. The parties discussed shipping additional cocaine from Colombia to Mexico, and Mr. Suarez recommended using Junior on this transaction since the parties had already completed "one run" with him. Although Appellants ordered the palm oil, and Junior invested money in the new deal, the transaction never materialized due to Junior's late payments on the first Palm Oil load.

         C.

         Finally, the third transaction, termed the El Chino Load, occurred in approximately September 2005. In this deal, Appellants and a drug trafficker named El Chino agreed to transport 3, 000 kilograms of cocaine from Colombia to Mexico City. The cocaine would be transported in two "go-fast boats, " and subsequently transferred to a Venezuelan-registered fishing vessel. The fishing vessel would meet a boat sent by El Chino off the coast of Honduras, and El Chino's associates would then transport the cocaine to Mexico City.

         During the initial shipment of cocaine, one of the "go-fast" boats broke down. As a result, only 1, 500 kilograms of cocaine made it to the Venezuelan fishing vessel. While the fishing vessel was supposed to meet El Chino's associates approximately sixty miles off the coast of Honduras, the crew spotted a U.S. plane above the vessel and threw the cocaine into the Caribbean Sea before being intercepted by the U.S. Coast Guard. Accordingly, when the Coast Guard searched the vessel, no contraband was discovered.

         D.

         Following the presentation of evidence in this case, the jury returned a guilty verdict for both Mr. Borda and Mr. Alvaran. While the District Court noted that the Government's evidence was "not overwhelming, " United States v. Borda, 786 F.Supp.2d 25, 36, 44 (D.D.C. 2011), it upheld the jury's verdict and denied Appellants' request for a new trial.

         At the sentencing hearing, the District Court found Appellants responsible for 200 kilograms of cocaine, in accordance with Mr. Suarez's testimony that Junior delivered 200 kilograms of cocaine to New York. The District Court further determined that Mr. Alvaran was "a manager or supervisor" of a conspiracy that included at least five participants. Given this finding, the District Court added three extra points to Mr. Alvaran's offense level, bringing his total level to 41. The Sentencing Guidelines range for this offense level is 324 months to 505 months, and the Probation Office recommended 360 months. The District Court, however, noted that it was not bound by the Guidelines range, and engaged in an analysis of the § 3553 factors. See 18 U.S.C. § 3553(a). Following this evaluation, the District Court imposed a below-Guidelines sentence of 180 months for Mr. Alvaran, which was substantially less than Mr. Borda's sentence of 300 months.

         After sentencing, Mr. Borda and Mr. Alvaran filed timely appeals. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

         II.

         Appellants first argue that the Government's evidence at trial was insufficient to permit a rational juror to find that Appellants knew or intended that the cocaine would be transported into the United States. Borda Br. 13, 19-25; Alvaran Br. 6-7, 9-13. In their briefing, however, Appellants ignore the Government's presentation of evidence on the intent element, and erroneously draw all reasonable inferences in favor of themselves. See Gov't Br. 18-19; see generally Borda Br. 20-25; Alvaran Br. 9-13. For the reasons discussed below, we reject Appellants' sufficiency of the evidence challenge.

         A.

         In reviewing a conviction for sufficiency of the evidence, we must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational juror could have found the elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v. Thompson, 279 F.3d 1043, 1050-51 (D.C. Cir. 2002); United States v. Washington, 12 F.3d 1128, 1135-36 (D.C. Cir. 1994). This standard seeks to preserve the jury's role as fact-finder. Jackson, 443 U.S. at 319; United States v. Glover, 681 F.3d 411, 423 (D.C. Cir. 2012). A defendant "faces a high threshold" and bears a "heavy burden" when seeking to overturn a guilty verdict on this ground. Washington, 12 F.3d at 1135; United States v. Branham, 97 F.3d 835, 853 (6th Cir. 1996).

         B.

         When viewed in the light most favorable to the Government, the evidence is sufficient to allow a rational juror to find guilt beyond a reasonable doubt. At trial, witness testimony suggested that Appellants knew Junior was sending cocaine across the border. Specifically, Mr. Suarez testified that Junior had started to send "partials" to the border and "[t]hey were waiting for the money to come back from there." Appellants then conversed about Junior's difficulties at the border, and Mr. Borda sympathized with Junior's hardships because Mr. Borda had previously been a drug dealer in the United States. Mr. Suarez further testified that all 1, 553 kilograms of the Palm Oil cocaine were transported into the United States, and at least 200 kilograms were sold in New York.

         The jury's decision to credit Mr. Suarez's testimony was not unreasonable in light of the circumstantial facts presented by the Government. First, the Government introduced evidence regarding the geographic location of Mexico and the United States, focusing particularly on the distance from Monterrey to the U.S. border. Through witness testimony, the Government established that Appellants knew the Palm Oil cocaine would be transported by Junior from Puerto Progreso to Monterrey. Puerto Progreso is a small port, and Monterrey is an inland city with no direct access to the ocean. Although Appellants argued that they intended to sell the cocaine in either Mexico or Europe, a reasonable juror could find that moving the merchandise inland contradicted this theory. Further, Monterrey is located only 200 kilometers from the U.S. border, and the evidence showed that Monterrey had an insufficient demand for the amount of cocaine contained in the Palm Oil load. A rational juror could infer that Appellants did not intend to sell the cocaine in Mexico, but rather intended for the cocaine to be distributed within the United States.

         Second, Appellants received payment for the Palm Oil cocaine in U.S. currency. At no point in time did Appellants receive payment in European or Mexican currency, refuting Appellants' contentions that they intended to sell the drugs in Europe or Mexico. To the contrary, Appellants kept ledgers that showed the receipt of U.S. currency - mostly in $20 bills. Although the profits passed through a money exchange house before distribution, a reasonable juror could nonetheless infer that the receipt of U.S. currency meant that the drugs were sold in the United States. Thus, Mr. Suarez's testimony, combined with the circumstantial evidence of geographic location and receipt of U.S. currency, could enable a rational juror to find guilt beyond a reasonable doubt.

         While Appellants cite numerous examples of evidence they believe to be exculpatory or contradicting, see Borda Br. 20-25; Alvaran Br. 9-13, much of that evidence is also consistent with the jury's guilty verdict, and the Court must view all the evidence in a light most favorable to the prosecution. See Jackson, 443 U.S. at 319; Thompson, 279 F.3d at 1050-51. A reasonable juror could examine the evidence and, taking all inferences in favor of the Government, conclude that Appellants knew or intended that the cocaine would be transported into the United States. Accordingly, Appellants have not met their high burden to show that no rational juror could find for the Government, and the evidence is sufficient to support the jury's guilty verdict.

         III.

         Appellants next challenge four specific evidentiary rulings made by the District Court. First, Appellants contend that the District Court erred by denying Mr. Borda's motion to admit a 2006 e-mail from Junior to the DEA. Borda Br. 34-40; Alvaran Br. 17-19. Second, Mr. Borda argues that the admission of his New York property records and Florida driver's license were irrelevant to the case and prejudicial. Borda Br. 40-42. Third, Mr. Borda asserts that the District Court erred by admitting his prior federal drug conviction. Id. at 42-48. Fourth, Mr. Borda contends that the District Court erroneously admitted co-conspirator testimony that was unrelated to the charged conspiracy. Id. at 48-52. We decline to reach the merits of these arguments because, for the reasons that follow, we find that, even assuming error, any such error was not prejudicial.

         A.

         This Court reviews the District Court's evidentiary rulings, particularly the admission or exclusion of evidence, for abuse of discretion. United States v. Vega, 826 F.3d 514, 537 (D.C. Cir. 2016) (per curiam); United States v. Mitchell, 816 F.3d 865, 870 (D.C. Cir. 2016) (explaining that the trial court's admissibility rulings are reviewed for abuse of discretion if a timely objection is made, and plain error if an objection is not preserved). Even if this Court determines that an evidentiary error occurred, it will not reverse an otherwise valid judgment unless the error affected the appellant's "substantial rights." Fed. R. Crim. P. 52(a) ("Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded."); United States v. Russo, 104 F.3d 431, 434 (D.C. Cir. 1997); United States v. Baker, 693 F.2d 183, 188-89 (D.C. Cir. 1982). An error affects the appellant's substantial rights if it influenced or tainted the outcome of the district court proceedings. United States v. Olano, 507 U.S. 725, 734 (1993); United States v. Smith, 232 F.3d 236, 243 (D.C. Cir. 2000). As the Supreme Court noted in Kotteakos v. United States, "[t]he inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand." 328 U.S. 750, 765 (1946). Where the Court is sure "that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand." Id. Thus, a reversal is usually only warranted where the error was prejudicial. Olano, 507 U.S. at 734; see Baker, 693 F.2d at 188-89.

         B.

         First, Appellants contend that the District Court erred by denying Mr. Borda's motion to admit a 2006 e-mail from confidential informant Junior to the DEA. See Borda Br. 16, 34-40; Alvaran Br. 17-19. Appellants argue that the e-mail, which conveyed Mr. Borda's interest in sending drugs to Europe, was relevant to the issue of intent and did not contain impermissible hearsay. Borda Br. 35-40; Alvaran Br. 17-19. Even assuming that the District Court's decision to exclude this e-mail was error, it was not prejudicial.

         1.

         On March 6, 2006, Junior sent an e-mail to the DEA titled "Tony-Mexico-Saturday 4 March." The e-mail included a description of Junior's meeting with Mr. Borda in which Mr. Borda offered Junior a new deal to settle Junior's account. Most relevantly, the e-mail stated that "[h]e is not interested in sending anything to the United States. Nothing. He is interested in Spain, (Valencia) and Mex." Appellants sought to admit this e-mail to negate the element of intent.

         The Government opposed admission of the e-mail and argued that if the District Court admitted Junior's March 6, 2006 e-mail, it would need to admit another e-mail by Junior sent later in the day regarding a meeting with a Mexican drug trafficker named Esteban Olivera (referred to as Estevan). In this second e-mail, Junior explained that he told Estevan "about the business with [Borda]" and that Estevan agreed to receive the containers. The e-mail further reported that "[o]n the trip we receive from [Mr. Borda], he wants to send to New York." The Government argued that the pronoun "he" in the prior sentence referred to Mr. Borda, and suggested Mr. Borda intended to distribute cocaine in the United States.

         The District Court was faced with dueling e-mails rather than Junior's testimony because Junior had disappeared by the time of trial and was feared to have been kidnapped and murdered. Ultimately, the District Court declined to admit the March 6, 2006 e-mail. First, the District Court explained that the e-mail did not relate to the charged conspiracy because it occurred six months after the Palm Oil and El Chino deals concluded. Second, the District Court noted that the use of ambiguous pronouns in the e-mail rendered it vague and confusing. Third, the District Court stated that even if the email had been relevant (i.e., within the scope of the conspiracy), it constituted hearsay. Finally, the District Court acknowledged that if Junior's 2006 e-mail were introduced, the Government would be permitted to admit the second e-mail on redirect.

          2.

         Without deciding whether the District Court erred, we find that the exclusion of Junior's March 6, 2006 e-mail was not prejudicial. First, Junior's 2006 e-mail occurred outside the scope of the conspiracy and was contradicted by another e-mail later that day. It therefore had little probative value on the issue of Mr. Borda's intent to sell drugs in the United States from January 2005 to September 2005. Second, Appellants introduced more probative evidence of their intent at trial, rendering Junior's 2006 e-mail duplicative. For example, Mr. Suarez testified on cross-examination that Mr. Borda rejected several offers to send cocaine to the United States. Mr. Suarez further acknowledged that Mr. Borda maintained an interest in transporting cocaine to Europe, particularly Holland, Italy, Spain, Switzerland, and Portugal, and that Mr. Borda had strong connections to ship the cocaine from Mexico to Europe. ...


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