United States of America, Appellee, v. Jose Luis Gomez-parra, Appellant.united States of America, Appellee, v. Alberto Ramirez, Appellant.united States of America, Appellee, v. John Michael Kolesnikow, Appellant.united States of America, Appellee, v. Diego Fernando Velasco, Appellant.united States of America, Appellee,v,santiago Felipe Cortes-penuela, Appellant.united States of America, Appellee, v. Gerardo Hincapie, Appellant.united States of America, Appellee, v. Edgar Jiminez-ballejo, Appellant.united States of America, Appellee, v. Delio Edgar Romero-romero, Appellant, 813 F.2d 1229 (4th Cir. 1987)

Annotate this Case
US Court of Appeals for the Fourth Circuit - 813 F.2d 1229 (4th Cir. 1987) Argued Dec. 12, 1986. Decided March 11, 1987

Before SPROUSE, CHAPMAN and WILKINS, Circuit Judges.

Dale T. Cobb, Jr. (Belk, Howard, Cobb & Chandler, P.A.) John M. Cutrone; Louis Casuso; Richard A. Sharpstein (Sharpstein & Sharpstein, P.A.) Stephen A. Glass; F. Lee Bailey (Paul M. Rashkind; Ken Fishman; Bailey, Gerstein, Rashkind & Dresnick) Joseph A. Connors (Arnold T. Blostein on brief) for appellants; Cameron Littlejohn, Jr., Assistant United States Attorney; David J. Slattery, Assistant United States Attorney (Vinton D. Lide, United States Attorney; Marcia Mason, Third Year Law Student, on brief), for appellee.

PER CURIAM:


Each of the defendants, Jose Luis Gomez-Parra, Alberto Ramirez, Jr., John Michael Kolesnikow, Diego Fernando Velasco, Santiago Felipe Cortes-Penuela, Gerardo Hincapie, Edgar Jiminez-Ballejo and Delio Edgar Romero-Romero, was tried by jury and convicted of conspiring to possess cocaine with intent to distribute, in violation of 21 U.S.C. SS 846, and of possessing cocaine with intent to distribute, in violation of 21 U.S.C. §Sec. 841(a) (1). All of the defendants appeal their convictions, which arose from their connection with the purchase of sixty kilograms of cocaine from a government informant in Columbia, South Carolina, on August 1-2, 1985. On appeal, the defendants contend that their convictions were based on insufficient evidence or, alternatively, that certain procedural errors mandate a new trial. Finding no merit to these objections, we affirm the convictions.

The defendants' convictions were based primarily on evidence obtained from a Drug Enforcement Agency (DEA) operation conducted in South America and in this country in Columbia, South Carolina. The evidence appropriately viewed revealed the following sequence of events involving all of the defendants.

In early 1985, Robert Candelaria, a DEA agent stationed in Venezuela, was introduced to Johann Pena. Prior to meeting Candelaria, Pena had worked as a confidential informant for the Venezuelan police. Pena agreed to infiltrate two organizations operating in Colombia, South America, that the DEA suspected of drug trafficking in the United States. In July 1985, Pena befriended Daniel Sanchez, a member of these organizations. continuing his role in the DEA operation, Pena posed as an airplane pilot who could fly large amounts of cocaine into the United States without being detected.

Sanchez put Pena in contact with the leaders of the drug trafficking operations, Alberto Ramirez, Sr., and Jose Saldarriaga. Ramirez, Sr., and Saldarriaga were interested in smuggling large quantities of cocaine from Colombia to their confederates in the United States. To test Pena's ability to bring cocaine into the United States without detection, the parties agreed to an initial flight with a small quantity of cocaine.

On behalf of Ramirez, Sr., and Saldarriaga, Sanchez gave Pena approximately sixty kilograms of cocaine--ten from Ramirez, Sr., and fifty from Saldarriaga. The drug dealers planned for Pena to fly his plane from Venezuela to Columbia, South Carolina, where he would be met by associates of Ramirez, Sr., and Saldarriaga. At trial, Pena testified that he was to be met in South Carolina by Ramirez' son, Alberto Ramirez, Jr., and a couple from the United States. Pena also testified that he was to be met by Saldarriaga's partner and a group from Miami. The plan also contemplated that Sanchez would be in South Carolina to act as an intermediary between Pena and the two groups. For transporting the cocaine into the United States, Pena was to receive $6,000 per kilogram.

At trial, Pena and a number of DEA agents testified that the following series of events occurred. After Sanchez gave Pena the sixty kilograms of cocaine, it was packed in two suitcases and a duffel bag. Pena and the luggage were then flown from Venezuela to Columbia, South Carolina, in a DEA airplane. Ruvell Borgus, a Venezuelan policeman, accompanied Pena and they arrived in Columbia on July 31, 1985. The suitcases and duffle bag were placed in the trunk of a Ford Tempo rented for Pena by the DEA. Pena and Borgus then drove the Tempo to a nearby Days Inn motel and checked into room 132. A DEA surveillance team was set up next door in room 134. On the evening of July 31, Pena received a call from defendant Velasco, who informed Pena that Sanchez had taken the wrong plane from Miami and would not arrive until the following day. Also on the evening of July 31, Pena received a call from a man identifying himself as "Alberto." The caller asked for Sanchez and said he, the caller, was nearby. Pena told "Alberto" that Sanchez had been delayed and would not arrive until the following day.

Sanchez and Gomez arrived in Columbia by plane around 12:00 p.m. on August 1 and checked into room 314 at the Days Inn. They went immediately to room 132 and talked with Pena for approximately forty-five minutes. While Sanchez and Gomez were still in Pena's room, "Alberto" called again and spoke with Sanchez. Pena asked if "Alberto" was "the one coming from California" and Sanchez answered affirmatively. Sanchez and Gomez eventually departed and went to their own room. Sanchez later left the room and went to the motel's restaurant.

At the restaurant, Sanchez met with Kolesnikow and Ramirez, Jr. At 1:25 p.m., the three men left the restaurant, got in Kolesnikow's car, and drove to the Howard Johnson motel where Ramirez, Jr., was registered. Leaving the Howard Johnson, they proceeded to a K-Mart store, where Sanchez bought a brown shoulder bag. They returned to the Days Inn and dropped off Sanchez at 2:30 p.m. Kolesnikow drove Ramirez, Jr., back to the Howard Johnson and returned to Sanchez' room at the Days Inn at approximately 3:00 p.m.

Between 2:30 and 3:00 p.m., while Kolesnikow was dropping Rameriz, Jr., off at the Howard Johnson, Sanchez took $60,000 to Pena in room 132. Borgus then drove the Ford Tempo down the parking lot from room 132 to room 314 (Sanchez' room). The suitcases and duffle bag were unloaded and carried into room 314, ten kilograms of cocaine were removed, the suitcases and duffle bag were reloaded in the Tempo, and Borgus drove the car back to room 132.

When Kolesnikow returned to the Days Inn, Sanchez came out of room 314 with the brown shoulder bag he recently purchased at the K-Mart. He handed it to Kolesnikow, who placed the bag in his car's trunk. Kolesnikow then drove back to the Master Economy Inn, where he and his wife were registered under assumed names, and was arrested by DEA agents in the motel's parking lot. The arresting agents seized the shoulder bag, searched it, and discovered ten kilograms of cocaine inside. Ramirez, Jr., was arrested shortly thereafter while in his room at the Howard Johnson.

When Kolesnikow and Ramirez, Jr., were arrested, the group from Miami, with the exception of Gomez (who had flown to Columbia with Sanchez), had yet to arrive. This "group" (defendants Velasco, Jimenez, Romero, Cortes and Hincapie) testified that they left Miami on the afternoon of August 1 and traveled to Columbia in three vehicles: Velasco in a Honda Prelude; Jiminez and Romero in a BMW; and Hincapie and Cortes in a Ford pickup truck.1  The group arrived in Columbia at 4:00 a.m. on August 2. Velasco, Romero and Jiminez checked into the same Howard Johnson at which Ramirez had been arrested the previous day. Hincapie and Cortez, who became separated from the others, checked into a nearby Holiday Inn.

At 7:30 a.m. on the morning of August 2, Velasco drove the Honda Prelude to the Days Inn, picked up Gomez and returned to the Howard Johnson. Gomez then drove the BMW back to the Days Inn and, soon after his return, took $300,000 to Borgus in room 132. After depositing the $300,000 with Borgus, Gomez drove the Tempo from room 132 to room 314, unloaded the suitcases and duffle bag, and carried the luggage into room 314. From 10:00-10:30 a.m. Gomez was observed removing the back seat of the BMW, placing a number of packages into the secret compartment beneath the back seat, and then replacing the BMW's back seat.

After Gomez finished loading the BMW, he met Hincapie in the Days Inn restaurant. Hincapie had driven over in the pickup truck from the Holiday Inn. The two men left the restaurant together and drove to the Howard Johnson--Gomez in the BMW and Hincapie in the pickup truck. They arrived at the Howard Johnson at 11:00 a.m. and were met by Jiminez and Romero. Jiminez and Romero then carried suitcases from their room to the BMW. Romero loaded the trunk, while Jiminez spread clothes on the back seat to cover a crack in the seat left by the secret compartment.

Jiminez and Romero left the Howard Johnson in the BMW shortly before noon and were arrested after pulling into an auto supply store. A search of the vehicle uncovered eighteen kilograms of cocaine hidden in the secret compartment under the back seat. Velasco and Hincapie drove the Honda Prelude from the Howard Johnson to the Holiday Inn, where they and Cortes were arrested. Gomez was arrested while driving the pickup truck back toward the Days Inn. A subsequent search of room 314 at the Days Inn revealed thirty-five kilograms of cocaine, as well as the original suitcases and duffle bags.2 

At trial, all of the defendants testified in their own behalf. Kolesnikow claimed that he and his wife were in South Carolina to look at medical schools his wife might attend. While there, Kolesnikow said he was introduced to Sanchez by a man named "Bill." "Bill" offered him $3,000 to take the shoulder bag to California. Ramirez, Jr., testified that he had flown from California to South Carolina to assist the Kolesnikows in their search for a medical school. He then planned to travel to Florida where he was to marry Mrs. Kolesnikow's sister. Ramirez, Jr., denied making any telephone calls to Pena. Gomez testified that Sanchez threatened his life, as well as the lives of other family members, if he did not arrange to transport the BMW and the pickup truck from Miami to Columbia. In fear of his own life, as well as the lives of other family members, he persuaded his friends to drive the vehicles to South Carolina. The other defendants testified that they agreed to drive the vehicles because they wanted to go to New York City for a vacation and this seemed a convenient and inexpensive way to get halfway to their destination. On appeal, all the defendants, with the exception of Gomez, contend that neither their conspiracy conviction nor their possession conviction was supported by sufficient evidence.

In reviewing the sufficiency of the evidence, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). To establish the elements of conspiracy, the government must prove an agreement to perform an illegal act, that the defendant knew of the agreement, and that he participated in some way in the conspiracy. united States v. Carmichael, 685 F.2d 903, 909 (4th Cir. 1982), cert. denied, 459 U.S. 1202 (1983); United States v. Lauahman, 618 F.2d 1067, 1074-75 (4th Cir.), cert. denied, 447 U.S. 925 (1980). To establish the elements of possession with intent to distribute, the government must prove that the defendant "(1) knowingly (2) possessed a controlled substance (3) with intent to distribute it." United States v. Samad, 754 F.2d 1091, 1096 (4th Cir. 1984). Possession may be actual or constructive. Constructive possession occurs when the defendant "exercises, or has the power to exercise, dominion and control over the item." Id. (quoting Laughman, 618 F.2d at 1077).

The defendants contend that the evidence was insufficient to support either of their convictions. First, each contends that he had no knowledge of any conspiracy. As to the substantive charge of possession, the defendants either contend that they did not actually possess any cocaine (Ramirez, Jr., Velasco, Hincapie and Cortes) or that they were unaware of such possession (Kolesnikow, Jiminez and Romero). With the exception of defendant Cortes, however, our review of the evidence convinces us that these contentions are not of sufficient merit to warrant discussion.

With respect to Cortes, the evidence advanced by the government admittedly was weaker than that presented against the other defendants. Cortes testified, however, that he traveled from Miami to Columbia with the other defendants--riding as a passenger in the pickup truck driven by Hincapie. Moreover, papers belonging to Cortes' father were found in the glove compartment of the truck and DEA agents had observed this vehicle parked in front of the Cortes' residence in Miami in September 1984. In addition, telephone calls had been placed on July 31 from General Works Corporation, an auto repair shop in Miami of which Cortes' father was co-owner, to the following locations: Pena's home in Venezuela, Sanchez' home in Venezuela, and the Days Inn in Columbia. Likewise, a call was placed on August 1 from room 314 of the Days Inn (Gomez' and Sanchez' room) to the Cortes residence in Miami. Finally, when Cortes checked into the Holiday Inn, he incorrectly listed Jacksonville, Florida as his home address. Viewing this evidence in the light most favorable to the government, we conclude that a reasonable trier of fact could have found Cortes guilty beyond a reasonable doubt.

Although he does not contest the sufficiency of the evidence, Gomez raises two evidentiary objections that, he contends, entitle him to a new trial. First, he argues that the prosecution improperly referred to his post-arrest silence. See Doyle v. Ohio, 426 U.S. 610 (1976). At trial, Gomez testified that he arranged to have the cars transported to South Carolina because Sanchez threatened his life if he failed to cooperate. During cross-examination, however, the government asked Gomez "why didn't you tell the police this story when you were first arrested." Although we acknowledge that the prosecution erred in asking this question, we conclude that this error was harmless beyond a reasonable doubt because the evidence against Gomez was overwhelming. Chapman v. California, 386 U.S. 18 (1967); Williams v. Zahradnick, 632 F.2d 353 (4th Cir. 1980). Gomez also argues that the prosecution erred in eliciting from him a reference to his pre-trial incarceration. we find no merit in this objection.

Nor do we find any merit in the other objections raised by the defendants, i.e., the district court's failure to grant motions for severance, its failure to properly instruct the jury on a variety of topics, its failure to suppress evidence, or its failure to alter the terms of the defendants' sentences.

We, therefore, affirm the convictions of each defendant.

AFFIRMED.

 1

The BMW was equipped with a secret compartment underneath the back seat, while the pickup truck had a false gas tank

 2

Sanchez was not arrested. Agent Candeleria testified that, according to the DEA's plan, Sanchez was to leave Columbia on the morning of August 2, unaware that any arrests had been made. He was to return to South America and arrange a second delivery to Pena, this time for 360 kilograms of cocaine. Sanchez was to be arrested after this second delivery. These plans went awry, however, and Sanchez was never apprehended

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.