United States v. Campo Flores
945 F.3d 687
| 2d Cir. | 2019Background
- Defendants Efrain Campo Flores and Franqui Flores de Freitas were convicted by a jury of conspiracy to import five or more kilograms of cocaine into the United States (21 U.S.C. §§ 963, 959(c), 960(b)(1)(B)(ii)) and sentenced to 216 months and $50,000 each.
- The prosecution ran a DEA sting: Honduras-based Sentado and former cartel member/informant Jose Santos-Pena (working with DEA) met with defendants in October 2015 (recorded Oct. 23, 26, 27) and again on Nov. 10 in Haiti (where arrests occurred); recordings and seized cell‑phone messages were admitted at trial.
- At an October 27 meeting defendants provided a kilo sample; Santos-Pena examined it (smell, sight, touch) and identified it as cocaine; defendants discussed using a private airplane and pricing consistent with U.S. markets.
- After arrest in Haiti, DEA Agent Sandalio Gonzalez interviewed each defendant in flight to New York; Gonzalez testified about defendants’ postarrest statements and the agent’s contemporaneous notes and reports were admitted as prior consistent statements.
- On appeal defendants challenged (a) sufficiency of evidence that they knew drugs were destined for the U.S. (and the conscious-avoidance jury instruction), (b) that the government failed to disprove entrapment (predisposition), (c) several evidentiary rulings (prior-consistent statements, Santos-Pena’s lay identification, agents’ interpretations), and (d) application of a two-level Guidelines enhancement for use of a private aircraft.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Gonzalez's notes/reports as prior consistent statements | Gov't: admissible under Fed. R. Evid. 801(d)(1)(B)(ii) to rebut defense attacks on Gonzalez's memory/credibility opened in defense openings and cross | Defs: improper because no express challenge to memory or recent fabrication and inadmissible before cross-examination | Court: affirmed admission as non-hearsay under Rule 801(d)(1)(B)(ii); judge acted within discretion given defense openings and timing was acceptable |
| Santos‑Pena's identification of the sample as cocaine | Gov't: lay-opinion admissible under Rule 701; Santos‑Pena had extensive practical familiarity and firsthand perception (smell/sight/touch) | Defs: constituted expert opinion (Rule 702) or insufficient without ingestion/testing; Daubert required | Court: upheld as lay opinion—tests were nontechnical, based on longtime cartel experience, helpful to jury, not expert scientific testimony |
| Sufficiency: knowledge that drugs were destined for the U.S. and conscious avoidance instruction | Gov't: recordings, texts (pricing differences), and in‑flight statements supported actual knowledge or at least deliberate avoidance; conscious-avoidance instruction was warranted | Defs: no evidence they knew or deliberately avoided knowing; instruction substituted avoidance for actual knowledge | Court: evidence (numerous references to U.S. distribution, prices, defendant admissions, nonresponses to CS references) supported either knowledge or conscious avoidance; instruction and verdict affirmed |
| Sentencing: §2D1.1(b)(3)(A) two-level enhancement for private aircraft "was used" | Gov't: §2D1.1 applies to conspiracies (per §2X1.1); entire guideline (including SOCs) applies to conspirators—enhancement warranted where plan involved private aircraft | Defs: “was used” requires actual completed importation or aircraft actually used; conspiracy thwarted so enhancement improper (Joelson/Chastain) | Court: applied Guidelines structure and history to reject past-tense limitation; §2D1.1 expressly covers attempts/conspiracies and SOCs apply—enhancement affirmed |
Key Cases Cited
- Old Chief v. United States, 519 U.S. 172 (1997) (standards for reviewing evidentiary rulings and admissibility issues)
- United States v. O'Connor, 650 F.3d 839 (2d Cir. 2011) (trial court may admit prior consistent statement before cross when defense openings attack credibility)
- United States v. Gaskin, 364 F.3d 438 (2d Cir. 2004) (lay testimony may identify narcotics if foundation of familiarity is established)
- Melendez‑Diaz v. Massachusetts, 557 U.S. 305 (2009) (analyst testimony not always required to prove substance identity)
- United States v. Yannotti, 541 F.3d 112 (2d Cir. 2008) (permitting lay opinion to explain coded criminal language)
- United States v. Svoboda, 347 F.3d 471 (2d Cir. 2003) (prerequisites for conscious-avoidance jury instruction)
- United States v. Joelson, 7 F.3d 174 (9th Cir. 1993) (held private-aircraft enhancement requires actual use of private aircraft to import)
- United States v. Chastain, 198 F.3d 1338 (11th Cir. 1999) (similar to Joelson; rejected enhancement when no actual import/use occurred)
- United States v. Rendon, 354 F.3d 1320 (11th Cir. 2003) (applied §2D1.1 enhancements to conspirators despite past‑tense phrasing)
- Jacobson v. United States, 503 U.S. 540 (1992) (entrapment doctrine: inducement and predisposition elements)
- Mathews v. United States, 485 U.S. 58 (1988) (entrapment focuses on defendant predisposition)