OPINION
JIM SHARP, Justice.
In its sole issue in this interlocutory appeal, appellant, TTHR, L.P. d/b/a Presbyterian Hospital of Denton, contends that the trial court abused its discretion when it denied appellant's motion to dismiss appellee Normell W. Guyden's medical malpractice suit because Guyden did not file a sufficient expert report. We affirm.
Guyden is suing individually and as heir to the Estate of Natalie J. Guyden, deceased.
If a health care liability claimant fails to serve an expert report within 120 days of filing suit, a defendant physician or health care provider may file a motion with the trial court requesting attorney's fees and dismissal of the claims. See TEX. CIV. PRAC. REM. CODE ANN. § 74.351(b) (Vernon Supp. 2009); see also TEX. CIV. PRAC. REM. CODE ANN. § 51.014(a)(9) (Vernon 2008) (allowing appeal from interlocutory order that denies all or part of relief sought by motion pursuant to section 74.351(b)).
BACKGROUND
After she nearly drowned, Natalie Guyden was taken to Presbyterian Hospital in Denton, Texas, and treated at the hospital for acute respiratory and renal failure, pneumonia, diabetes mellitus, and anoxic encephalopathy. After almost two months in the hospital, Natalie developed a urinary tract infection (UTI) which was treated with the antibiotic Levaquin. Despite laboratory tests indicating that Natalie's UTI was caused by a strain of E. coli bacteria resistant to Levaquin, no other antibiotic was substituted.
Notwithstanding her infection, on June 15, 2006, Natalie was transferred by ambulance to Courtyard Convalescent Center, a long-term-care facility in Houston. Although Presbyterian Hospital was required to prepare a memorandum of transfer informing Courtyard of all relevant diagnoses and treatments, Natalie's memorandum of transfer was silent as to both her UTI and her laboratory results. Notes from Courtyard documenting information that it received from a Presbyterian Hospital nurse also make no mention of Natalie's UTI. As a result, Natalie's infection continued unchecked and she died within a day of arriving at Courtyard. The cause of death was listed as urosepsis.
Guyden filed suit against Presbyterian Hospital, Courtyard, and doctors Christopher Lockhart and Jamal Mubarak. On September 25, 2008, Guyden timely served all four defendants with the required expert report and curriculum vitae of his expert, George M. Matuschak, M.D. Defendant Presbyterian Hospital filed objections to the sufficiency of Dr. Matuschak's expert report on October 21, 2008. Six months later, on March 31, 2009, Presbyterian Hospital filed a motion to dismiss pursuant to section 74.351(b) of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. REM. CODE ANN. § 74.351(b) (Vernon Supp. 2009). After a hearing, the trial court overruled Presbyterian Hospital's objections and denied the motion to dismiss. This interlocutory appeal ensued.
Neither Dr. Mubarak nor Courtyard objected to the sufficiency of Guyden's initial Chapter 74 expert report. Neither defendant is a party to this appeal.
Dr. Lockhart also filed objections to Dr. Matuschak's expert report on October 16, 2008. After a non-evidentiary hearing on November 10, 2008, the trial court denied Dr. Lockhart's motion to dismiss and overruled his objections to Dr. Matuschak's report. On December 1, 2008, Dr. Lockhart filed an interlocutory appeal with this Court challenging the ruling. This Court heard arguments and on July 16, 2009 issued a memorandum opinion reversing the ruling and remanding the case for further proceedings.
Lockhart v. Guyden, No. 01-08 00983-CV,
2009 WL 2050983, at *4 (Tex. App.-Houston [1st Dist.] July 16, 2009) (mem. op.). The trial court subsequently granted Guyden a 30-day extension of time to cure the report's deficiencies. On September 15, 2009, during the pendency of this appeal, Dr. Matuschak prepared and served an amended expert report. The amended report, however, is not part of this appeal.
DISCUSSION
Presbyterian Hospital asserts that the trial court abused its discretion when it determined that Dr. Matuschak's expert report satisfied the statutory requirements of Chapter 74 of the Texas Civil Practice and Remedies Code.
I. Applicable Law
A. Standard of Review
We review a trial court's decision on a motion to dismiss a case for failure to comply with section 74.351 for an abuse of discretion. See Am. Transitional Care Centers v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001); TEX. CIV. PRAC. REM. CODE ANN. § 74.351 (Vernon Supp. 2009). Although we defer to the trial court's factual determinations, we review questions of law de novo. Rittmer v. Garza, 65 S.W.3d 718, 722 (Tex.App.-Houston [14th Dist.] 2001, no pet.). To the extent that resolution of the issue before the trial court requires interpretation of the statute itself, we apply a de novo standard. Buck v. Blum, 130 S.W.3d 285, 290 (Tex.App.-Houston [14th Dist.] 2004, no pet.).
B. Chapter 74 Expert Report Requirements
Section 74.351 ostensibly serves as a `gate-keeper' through which no medical negligence causes of action may proceed until the claimant has made a good-faith effort to demonstrate that at least one expert believes that a breach of the applicable standard of care caused the claimed injury. See TEX. CIV. PRAC. REM. CODE ANN. § 74.351; Murphy v. Russell, 167 S.W.3d 835, 838 (Tex. 2005). A report need not marshal all of the plaintiff's proof but it must include the expert's opinions on the three statutory elements: standard of care, breach, and causation. See Palacios, 46 S.W.3d at 878, 880; Spitzer v. Berry, 247 S.W.3d 747, 750 (Tex.App.-Tyler 2008, pet. denied) (quoting Palacios, 46 S.W.3d at 880) (stating "fair summary" is "something less than a full statement" of applicable standard of care, how it was breached, and how that breach caused injury).
To constitute a good faith effort, the report must provide enough information to fulfill two purposes: (1) inform the defendant of the specific conduct that the plaintiff has called into question; and (2) provide a basis for the trial court to conclude that the claims have merit. Palacios, 46 S.W.3d at 879. A report that merely states the expert's conclusions as to the standard of care, breach, and causation does not fulfill these two purposes. Id. The expert must explain the basis for his statements and link his conclusions to the facts. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (citing Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999)). The trial court may not draw any inferences, but must rely exclusively on the information contained within the report's four corners. See Palacios, 46 S.W.3d at 878. In addition to setting forth the requisite criteria, a Chapter 74 report must also be authored by a qualified "expert." TEX. CIV. PRAC. REM. CODE ANN. § 74.351(r)(6).
II. Adequacy of Expert Report
Presbyterian Hospital argues that the expert report submitted by Guyden does not satisfy the requirements of section 74.351 because Dr. Matuschak, Guyden's expert, is not qualified to opine on causation and, even if he is qualified, his "conclusory statements" are not a "fair summary" of the standard of care, breach, or causation as to Presbyterian Hospital.
A. Qualifications of Experts
Presbyterian Hospital contends that Dr. Matuschak is unqualified to opine on causation because he is not licensed to practice medicine in Texas. Section 74.351, entitled "Expert Report," defines an "Expert," "with respect to a person giving opinion testimony about the causal relationship between the injury, harm or damages claimed and the alleged departure from the applicable standard of care in any health care liability claim" in a Chapter 74 report as "a physician who is otherwise qualified to render opinions on such causal relationship under the Texas Rules of Evidence." TEX. CIV. PRAC. REM. CODE ANN. § 74.351(r)(5)(C). Under the Texas Rules of Evidence, "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise;" TEX.R. EVID. 702; see also Broders v. Heise, 924 S.W.2d 148, 153 (Tex. 1996).
Presbyterian does not argue that Dr. Matuschak is not qualified to opine as to the applicable standard of care or any breaches thereof.
Although neither section 74.351(r)(5)(C) nor the Texas Rules of Evidence explicitly require a physician to be licensed in Texas, Presbyterian Hospital argues that we must nonetheless find Dr. Matuschak disqualified on this basis. According to Presbyterian Hospital, because the term "physician" is not defined in section 74.351(r)(5)(C) or anywhere else in the same subchapter, we must apply the general definition of "physician" as set forth in Subchapter A of Chapter 74 (sections 74.001-.004). Subchapter A defines "physician" to mean, inter alia, "an individual licensed to practice medicine in this state." TEX. CIV. PRAC. REM. CODE ANN. § 74.001(a)(23)(A) (Vernon 2005) (emphasis added).
Section 74.001 (a)(23) of Subchapter A, however, was not intended to define who would or would not be qualified to author an expert report under section 754.351, but rather which type of defendants were entitled to the protections and benefits of Chapter 74 as a whole. Such an interpretation comports with the legislature's intended purpose for enacting Chapter 74 — to protect Texas physicians and other health care providers from the state's "medical malpractice insurance crisis." See TEX. CIV. PRAC. REM. CODE ANN. § 74.001 historical and statutory notes [Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.11, 2003 Tex. Gen. Laws 847, 884].
See generally TEX. CIV. PRAC. REM. CODE ANN. § 74.00 I(a)(10) (Vernon 2005) (defining "health care"); id. at § 74.001(a)(13) (defining "health care liability claim" as "a cause of action against a health care provider or physician . . ."); id. at § 74.001(a)(12)(A)(vii) (defining "health care provider" as "a health care institution"); id. at § 74.001(a)(11)(G), (H) (defining "health care institution" as a hospital or hospital system); id. at § 74.001(a)(16), (17) (defining "hospital" and "hospital system"); id. at § 74.001(a)(23)(A) (defining "physician" as "an individual licensed to practice medicine in this state").
Moreover, the cases that Presbyterian Hospital cites in support of its argument that the general definition of "physician" set forth in section 74.001(a)(23) applies to section 74.351 are neither dispositive nor are they persuasive with regard to this issue. The courts in these cases either (1) were never presented with the question of whether a physician who was not licensed to practice medicine in Texas, but was licensed in another state, was qualified to opine as to causation in a Chapter 74 expert report or (2) never reached the question because the purported expert was either licensed in Texas or not licensed at all. In fact, some of these cases actually support the proposition that section 74.001(a)(23) was intended to define the type of claims subject to Chapter 74 and the scope of defendants entitled to the protections of the chapter. See generally Pro Path Servs., L.L.P. v. Koch, 192 S.W.3d 667, 672 (Tex.App.-Dallas 2006, pet. denied) (stating that laboratory entitled to benefits and protection of Chapter 74 because it met definition of "physician" set forth in section 74.001(a)(23)); Hunsucker v. Fustok, 238 S.W.3d 421, 429 (Tex.App.-Houston [1st Dist.] 2007, no pet.) (determining that appellant's common-law fraud, breach of warranty, and tort claims were "health care liability claim[s]," and therefore, subject to requirements of section 74.351's predecessor statute).
See Pro Path Servs., L.L.P. v. Koch, 192 S.W.3d 667, 672 (Tex.App.-Dallas 2006, pet. denied) (stating that laboratory entitled to benefits and protection of Chapter 74 because it met definition of "physician" set forth in section 74.001(a)(23)); Hunsucker v. Fustok, 238 S.W.3d 421, 429 (Tex.App.-Houston [1st Dist.] 2007, no pet.) (determining that appellant's common-law fraud, breach of warranty, and tort claims were "health care liability claim[s]" and affirming dismissal of claims for failure to submit expert report; court was not presented with, and did not address, question of whether expert was qualified to opine as to causation in a Chapter 74 expert report).
See Foster v. Zavala, 214 S.W.3d 106, 112 (Tex.App.-Eastland 2006, pet. denied) (purported expert licensed to practice medicine in Texas); Li v. Billingsley, No. 05-08-00436-CV, 2009 WL 242523, at *2 (Tex.App.-Dallas Feb. 3, 2009, no pet.) (mem. op.) (purported expert — a chiropractor — was not licensed to practice medicine anywhere in United States); Azle Manor, Inc. v. Vaden, No. 02-08-00115-CV, 2008 WL 4831408, at *9 (Tex.App.-Fort Worth Nov. 6, 2008, no pet.) (mem. op.) (purported expert licensed to practice medicine in Texas).
After considering Presbyterian Hospital's arguments and authorities, we decline to read a Texas licensure requirement into section 74.351(r)(5)(C) by way of section 74.001(a)(23). This result comports with the holdings of three of our sister courts that determined — albeit for other reasons — that a physician need not be licensed in Texas in order to author a Chapter 74 expert report. See Kelly v. Rendon, 255 S.W.3d 665, 675 (Tex.App.-Houston [14th Dist.] 2008, no pet.); Springer v. Johnson, 280 S.W.3d 322, 327-30 (Tex.App.-Amarillo 2008, no pet.); Tenet Hosps. Ltd. v. Boada, 304 S.W.3d 528, 538-39 (Tex.App.-El Paso 2009, pet. denied). Although we do not adopt the analysis of our sister courts, we nonetheless agree with their ultimate conclusions.
Section 74.401(g)(1) also defines the term "physician." This definition, however, only applies to Subchapter I, and is likewise inapplicable to Subchapter H's section 74.351(r)(5)(C). See TEX. CIV. PRAC. REM. CODE ANN. § 74.401(g)(1) (defining "physician" for purposes of "this subchapter").
When no applicable statutory definition is provided, such as here, we accept the ordinary meaning of words used unless a contrary intention is apparent from the context, or unless such a construction leads to absurd results. City of Rockwall v. Hughes, 246 S.W.3d 621, 625-26 (Tex. 2008). The term "physician," as it is ordinarily used, refers to a person who is licensed to practice medicine. See COMPACT OXFORD ENGLISH DICTIONARY 1332 (2d ed. 1993). It does not impose any geographical limits. This interpretation is in accord with section 74.401, entitled "Qualifications of Expert Witness in Suit Against a Physician," that is set out in Subchapter I, entitled "Expert Witnesses.' In regard to "expert witnesses," section 74.401 define "physician" as a person who is "licensed to practice medicine in one or more states in the United States" or a "graduate of a medical school. . . ." TEX. CIV. PRAC. REM. CODE ANN. § 74.401(g) (Vernon 2005).
Here, Dr. Matuschak's report and curriculum vitae reflect that he is a licensed physician in good standing in the States of Pennsylvania and Missouri who has been practicing medicine since 1977. He is a board certified internist with subspecialty board certifications in Critical Care Medicine and Pulmonary Disease. Dr. Matuschak has also provided medical evaluation, care, and treatment to acute and chronically ill patients such as Natalie with urinary tract infections and urosepsis, and he has "managed and/or directed the management of hundreds of patients with medical conditions similar to the circumstances seen in Natalie Guyden's case." Dr. Matuschak's report and curriculum vitae also state that Dr. Matuschak has experience assisting in and supervising the transfer of such patients to long-term-care facilities, and has knowledge regarding the documentation required for such transfers.
Thus, we conclude that Dr. Matuschak's qualifications, as set forth in his report and his curriculum vitae, sufficiently qualify him to opine on the proper treatment and care of acute and chronically ill patients such as Natalie who develop urinary tract infections and the complications that flow from the failure to properly manage or treat such infections. Accordingly, we conclude that the trial court did not abuse its discretion in finding Dr. Matuschak qualified by knowledge, skill, experience, training, or education to opine as to causation, and that such testimony would assist the trier of fact to understand the evidence or to determine a fact in issue. Because Dr. Matuschak is licensed to practice medicine and he is otherwise qualified to render opinions on causation under Texas Rule of Evidence 702, the trial court did not abuse its discretion in finding him qualified to opine as to causation in an expert report under section 74.351(r)(5)(C).
We overrule Presbyterian Hospital's first argument.
B. Standard of Care, Breach, and Causation
After devoting the lion's share of its appellate brief to challenging Dr. Matuschak's qualifications, Presbyterian Hospital perfunctorily argues that Dr. Matuschak's report is deficient because it does not provide a "fair summary" of his opinions as to standard of care, breach, and causation. Specifically, Presbyterian Hospital argues that the report merely states that the hospital "should have communicated `all relevant diagnoses and treatments,'" without identifying what Presbyterian Hospital should have done differently or "what makes one diagnoses or treatment `relevant,' and another not `relevant.'" See Palacios, 46 S.W.3d at 880 ("Identifying the standard of care is critical: Whether a defendant breached his or her duty to a patient cannot be determined absent specific information about what the defendant should have done differently.") With regard to breach and causation, Presbyterian Hospital also argues that Dr. Matuschak's statement that the hospital failed to "effectively communicate relevant diagnoses and treatments" and that "but for the negligence of the Hospital . . . Natalie Guyden would not have suffered from and died from urosepsis" is "completely conclusory" because it is not supported by any facts.
Presbyterian Hospital, however, has taken Dr. Matuschak's statements out of context and attempted to analyze these statements in a vacuum, rather than looking to the report as a whole. In his report, Dr. Matuschak states that a urine specimen was collected from Natalie on June 12, 2006 and sent to Presbyterian Hospital's laboratory for testing, including culture and sensitivity (C S) studies. The C S report prepared by the laboratory indicated that Natalie's UTI was caused by a Levaquin-resistant pathogen. This information was available to the Presbyterian Hospital prior to Natalie's discharge and transfer to Courtyard on June 15, 2006. Despite the laboratory results and the availability of other antibiotics, Natalie continued to be treated with Levaquin. Dr. Matuschak states that in his professional opinion, had Natalie been taken off Levaquin and treated with "an effective antibiotic based upon the urine C S as detailed above, Natalie would not have suffered and died from urosepsis."
With respect to the standard of care applicable to Presbyterian Hospital, Dr. Matuschak states in pertinent part:
The standards of healthcare/nursing care dictate that an [sic] Presbyterian Hospital of Denton via its employees or agents, administrators and/or nurses
should have thoroughly communicated with the accepting long-term care facility about Natalie Guyden's UTI under treatment and pending laboratory results if any. The standards of healthcare/nursing care dictate that Presbyterian Hospital of Denton via its employees or agents, administrators and/or nurses
should have notified the Center of Natalie's UTI under treatment and pending laboratory results if any via the Memorandum of Transfer. The standards of healthcare/nursing care dictate that Presbyterian Hospital of Denton via its employees or agents, administrators and/or nurses
should have notified the Center of Natalie's UTI under treatment and pending laboratory results if any via the verbal transfer communications between Nurse Hanning that occurred on June 15, 2006.
(Emphasis added.)
Having set forth the applicable standard of care, Dr. Matuschak goes on to state that:
In contrast, the Memorandum of Transfer for the Hospital does not contain any information about Natalie's UTI nor any information about any pending diagnostic studies, if any were pending, concerning the UTI. Moreover, the notes from Courtyard documenting the information received from the Hospital via Nurse Hanning on June 15, 2006 does not contain any information about Natalie's UTI nor any information about any pending diagnostic studies, if any, concerning the UTI. Thus, it is my medical professional opinion that the Hospital's healthcare/nursing care with respect to their failure to communicate relevant information about Natalie's evaluation and treatment for a UTI represents healthcare/nursing care negligence.
With regard to causation, Dr. Matuschak states:
Furthermore, based upon my qualifications discussed above and in my CV, the medical science discussed in the "general section" above, the medical facts summarized above, that but for the negligence of the Hospital as set forth in this section, Natalie Guyden would not have suffered from and died from urosepsis. That is, more likely than not had the relevant medical information been communicated to the Center by the Hospital the Center would have timely and appropriately responded to the acute change in Natalie's condition on June 15th and 16th 2006 so that timely and appropriate treatment of her urosepsis could have ensued. Thus, it is my professional opinion to a reasonable degree
of medical probability that Presbyterian Hospital of Denton's negligent care was a proximate cause of Natalie Guyden's injuries from a urinary tract infection and her death from urosepsis.
Dr. Matuschak's report identifies three specific actions that the applicable standard of care required, but Presbyterian failed to do, and sets forth sufficient facts linking Presbyterian Hospital's purported breaches to the alleged injury. See Bowie Mem'l Hosp., 79 S.W.3d at 52 (requiring expert to explain basis of his statements regarding causation and link his conclusions to facts). Dr. Matuschak's statements also make it clear that he has informed Presbyterian Hospital of the specific conduct that Guyden called into question — the hospital's failure to inform Courtyard of Natalie's UTI diagnosis and treatment, and pending laboratory results, if any — and he has provided sufficient information for the trial court to conclude that Guyden's claims have merit with respect to Presbyterian. See Palacios, 46 S.W.3d at 879 (stating expert report must inform defendant of specific conduct that plaintiff has called into question and provide basis for trial court to conclude that claims have merit).
Therefore, keeping in mind that section 74.351 expert reports are a preliminary method to show that a plaintiff has a viable cause of action that is not frivolous or without expert support, we hold that the trial court acted within its discretion in concluding that Dr. Matuschak's report represents an objective good faith effort to identify and set forth how Presbyterian Hospital breached the applicable standards of care and the causal relationship between those failures and the injuries claimed.
We overrule Presbyterian Hospital's second, third, and fourth arguments.
CONCLUSION
We affirm the trial court's order denying Presbyterian Hospital's motion to dismiss.
. 3, 2010.) He said the defendant was dressed in civilian clothing but carried a handgun and a short-wave radio. (Trial Tr. AM Session 20, Mar. 3, 2010.) According to Hernan Santiago, the defendant "came to the table where [the cocaine base] had been weighed, and the accounts been done, and he reviewed Sonia's notebook regarding how much had come from each town." (Trial Tr. AM Session 20, Mar. 3, 2010.) He testified that the defendant "[t]hen . . . took [the cocaine base] to a [cargo] boat where it was loaded pre-dawn to be taken towards the Sunsiya [river]." (Trial Tr. AM Session 20, Mar. 3, 2010.) Hernan Santiago said that he helped load the cocaine base onto the cargo boat. (Trial Tr. AM Session 21, Mar. 3, 2010.) He also said that, if the cargo boat failed to arrive to transport the cocaine base, the cocaine base would be moved further into the jungle and guarded until the defendant communicated with Sonia Valderrama to order that the cocaine base be transported to the defendant's laboratory. (Trial Tr. AM Session 39-40, Mar. 3, 2010.)
Hernan Santiago further testified that when the cocaine base was brought to Penas Coloradas, Sonia Valderrama, her brother and a third person would weigh and test the cocaine base and the defendant would comment about the testing process by saying that they "had to be very careful to make sure [the cocaine base] was absolutely dry and to be very careful with the cutting agents." (Trial Tr. AM Session 22, Mar. 3, 2010.) Each time Hernan Santiago saw the defendant "he would go to review the notebooks with Sonia about the amounts," although he also noted that the defendant and Sonia sometimes communicated by radio. (Trial Tr. AM Session 23, Mar. 3, 2010.) Hernan Santiago said he saw the defendant weekly over a three to four-year time period when "[t]here would be weekly purchases made and deliveries of the cocaine" and the same weighing, testing and repackaging of the cocaine base would take place. (Trial Tr. AM Session 24-25, Mar. 3, 2010.) He stated that "[m]ost of the time [the defendant] was there at pre-dawn to review the notebook" and "[a]lways at dawn when the boat was to be loaded." (Trial Tr. AM Session 25, Mar. 3, 2010.) He also stated that, at one point, the defendant "was telling Sonia that Fabian [Ramirez] was demanding that the testing be done more thoroughly, because it was lowering — decreasing the cocaine in the lab. So they had to test much more carefully to verify for water and impurities." (Trial Tr. AM Session 32, Mar. 3, 2010.)
Hernan Santiago also explained that sometimes there were problems purchasing cocaine base because the FARC's money would be in United States dollars that had not been converted to Colombian pesos, which was the currency needed for cocaine base purchases. (Trial Tr. AM Session 26, 32, Mar. 3, 2010.) He said that when there were only United States dollars available they would give the peasants IOUs for cocaine base. (Trial Tr. AM Session 35, Mar. 3, 2010.) He said he saw United States dollars packed in boxes and there was "a lot of talk" at night about where the dollars came from and "[t]hat the Americans were angry at the organization because we were bringing over dollars for drugs." (Trial Tr. AM Session 33, Mar. 3, 2010.) He went on to state that "[i]t was even said that the Americans were pursuing the coke because it could not be cultivated or harvested in the United States" and "[o]nce it was said that the gringos were always mad because of the drugs, because we brought the drugs up there, and because they had — and most of them have plastic noses from sniffing it so much." (Trial Tr. AM Session 34, Mar. 3, 2010.) Hernan Santiago said that the importation of cocaine to the United States was a common topic of conversation at the meetings to weigh and test the cocaine base and that "[w]e were once talking about that subject when [the defendant] arrived in the morning." (Trial Tr. AM Session 34, Mar. 3, 2010.)
Witness Alexis Perez testified that he was a FARC guerilla who worked for the 43rd Front, the general staff of the Eastern Bloc, as a guard for Mono JoJoy, and then he was assigned to the Juan Jose Rondon Mobile Column. (Trial Tr. PM Session 6, Mar. 10, 2010.) Perez testified that while he was part of the Mobile Column he traveled to the 14th Front in 2002 with Ricuate, a commander of the 14th Front, and Urias, the commander the Mobile Column. (Trial Tr. PM Session 6, Mar. 10, 2010.) Perez identified the defendant and said he met the defendant while he was traveling in the 14th Front with Ricaute and Urias. (Trial Tr. PM Session 6, 7, 8, Mar. 10, 2010.) Perez said that they arrived at a house in Guayabal where the defendant introduced himself and greeted them. (Trial Tr. PM Session 7, Mar. 10, 2010.) Perez said he saw cocaine in the house where "they were conducting activities that began with the testing and working with the coca." (Trial Tr. PM Session 7, Mar. 10, 2010.) Perez testified that, at that time, the defendant "was taking down the accounts of what seven people that were working there were telling him; that is, he kept a record of what these people were telling him that the drug or the coke weighed" and "[t]hey were doing the process of testing the drug and weighing the drug." (Trial Tr. PM Session 9, Mar. 10, 2010.) He explained that:
They were conducting this activity which was weighing the drugs, which is the control they exercise in the area over the purchase of it, from the peasants. This is done so that farmers don't get to add anything to it, something we call additives in Colombia.
So the drugs are accompanied with the name of the farmer that sold it to the guerillas. So this is what they were
more or less doing at this location and — because observed it for about 30 minutes [sic].
Mono JoJoy was a commander of the FARC's Eastern Front. (Trial Tr. PM Session 44, Feb. 25, 2010.)
(Trial Tr. PM Session 8, Mar. 10, 2010.) Perez further stated that he could see the drugs and there were about 2,000 kilograms of cocaine base in the house that day. (Trial Tr. PM Session 9, Mar. 10, 2010.) The following day, the cocaine base was loaded onto a boat in the defendant's presence and then the boat headed down the river. (Trial Tr. PM Session 10, Mar. 10, 2010.)
Perez testified that the following week he accompanied Ricaute to a cocaine laboratory where the defendant greeted them again. (Trial Tr. PM Session 10, Mar. 10, 2010.) Perez described the laboratory as one that produced "crystal" cocaine, which he described as a "much more sophisticated" laboratory that had an electricity generator, "many ovens," and "[t]hat day, there were many people working there." (Trial Tr. PM Session 11, Mar. 10, 2010.) He also stated that the laboratory "had a smell of ammonia and sulfur, and you know by those smells that it is a coke lab." (Trial Tr. PM Session 13, Mar. 10, 2010.) When asked what the defendant was doing, Perez responded that "[i]n a moment there, three speedboats arrived, loaded with drugs. And he gave them instructions. He gave instructions to the pilots that they could leave, telling them that they were waiting for them, that the landing strip was waiting." (Trial Tr. PM Session 11, 54, Mar. 10, 2010.) Perez said he knew crystal cocaine was on the boats because he recognized the packaging and "[w]hat that lab does is coca, so it was loaded with coca." (Trial Tr. PM Session 12, Mar. 10, 2010.) He testified that he was certain the boats contained cocaine "because ever since I was small, I was — I would harvest coca leaves. So I know how the coca is processed. I know the smell. I know how it is packaged. So it is very easy to tell that is was coke." (Trial Tr. PM Session 53, Mar. 10, 2010.) He also said that "[t]here were about 700 kilos in each of the speedboats, because that is about the weight that these kind of boats can carry, because I was also a pilot for these kind of boats." (Trial Tr. PM Session 12, Mar. 10, 2010.)
Perez said that "in most of the fronts where I was, coca is grown" and "in the fronts, there was always coke activity." (Trial Tr. PM Session 15, Mar. 10, 2010.) He also said that it was "something normal" to hear members of the FARC commenting "that the coke was coming to the United States because it said that it is the country that most consumes it." (Trial Tr. PM Session 21, Mar. 10, 2010.) Perez testified that Mono JoJoy said during a meeting at a training school "that the cocaine was all coming to the United States." (Trial Tr. PM Session 23, Mar. 10, 2010.) Perez explained that this statement was made while the guerillas "were receiving instructions, military instructions and political economics." (Trial Tr. PM Session 23, Mar. 10, 2010.) According to Perez, Mono JoyJoy said "[t]hat the drug was going to the United States to make them go crazy, because that is the policy, that is the image that is portrayed in the FARC." (Trial Tr. PM Session 24, Mar. 10, 2010.)
Witness Ferney Tovar Parra testified that he was never a member of the FARC but he knew the defendant's brother, Fabian Ramirez, since 1981 when Ramirez joined the FARC. (Trial Tr. AM Session 30, Mar. 23, 2010.) Tovar said that he performed errands for Ramirez in 1996 and, as a result of working for Ramirez, Tovar established a friendship with Ramirez's brother, the defendant. (Trial Tr. AM Session 30, Mar. 23, 2010.) Tovar explained that his role working for Ramirez changed after 1996 because "Ramirez began to set in motion a plan or a project where he would concentrate all of the drug trafficking business in his own hands." (Trial Tr. AM Session 31, Mar. 23, 2010.) Tovar testified that Ramirez
told him that "the profits derived from all of this business from the drug trafficking was being pocketed by the drug traffickers, and these were moments when the FARC found itself in a critical situation with many needs, and that is why he initiated it." (Trial Tr. AM Session 31, Mar. 23, 2010.) Ramirez told Tovar that the details of the plan "consisted of one, to concentrate the production of the cocaine in his own hands; and two, then to sell for cocaine — the cocaine base after getting production of the upper, middle and lower Caguan, the production of the peasantry in those areas." Tovar aid that "Fabian Ramirez decided that he would make Penas Coloradas on the Caguan River the epicenter of all of his activities." (Trial Tr. AM Session 29, Mar. 23, 2010.)
Tovar said that the first phase of Ramirez's plan involved establishing a monopoly over all the production of cocaine base from the peasants and farmers in the area. (Trial Tr. AM Session 32, 33, Mar. 23, 2010.) To accomplish this Ramirez designated the FARC's militia to collect cocaine base from the peasants and he demanded the highest quality cocaine base that was free of humidity and "dirt." (Trial Tr. AM Session 32, Mar. 23, 2010.) As a result, Tovar testified, the purity of the cocaine base was so improved that it "led to a rise in the price of the cocaine base." (Trial Tr. AM Session 31, Mar. 23, 2010.) According to Tovar, Ramirez "was so successful in obtaining this that the drug traffickers themselves were known to say that the cocaine base was . . . [t]he best in the Caguan — the cocaine base was the best in Colombia." (Trial Tr. AM Session 32, Mar. 23, 2010.)
Tovar said that "the second phase was the marketing phase. And based on the fact that the quality of the cocaine base had been improved, Caguan River was overrun by buyers of cocaine." (Trial Tr. AM Session 34, Mar. 23, 2010.) Tovar explained that, at that time, there were two laboratories in the area that processed cocaine hydrochloride so Ramirez "put an end to their activities and set up his own laboratory." (Trial Tr. AM Session 34, Mar. 23, 2010.) When he was asked who Ramirez put in charge of the laboratory, Tovar responded:
Well, for this great responsibility — this great responsibility he assigned to his brother, Erminso Cuevas Cabrera, and he made him — he named him the general administrator of the laboratory, and he set up the laboratory in Monte Adentro, which is 15 to 20 minutes away from Penas Coloradas on the Caguan River.
(Trial Tr. AM Session 34, Mar. 23, 2010.) Tovar said the defendant was "the brother most loved by Fabian Ramirez" and that Ramirez gave his child to the defendant to raise. (Trial Tr. AM Session 35, 36, Mar. 23, 2010.)
In 1999, Ramirez met with Tovar, the commander of the FARC's Western Bloc, and another drug trafficker and told them that the FARC's Secretariat had named Ramirez to be a leader to provide training to the Finance Officers in the different Blocs to implement the same policies Ramirez established regarding cocaine trafficking in the Caguan region. (Trial Tr. AM Session 58, Mar. 23, 2010.) Ramirez also told them that "he had been promoted to become a member of the Central High Command of the FARC . . . and he told us [as] a point of pride that he had been promoted within the FARC hierarchy." (Trial Tr. AM Session 58, Mar. 23, 2010.) Ramirez explained that "[t]he guidance he was providing was the same for all of the leaders of the different blocks [sic]. The idea was for them to implement this strategy whereby the FARC would take this drug trafficking business into their own hands, not allowing the drug traffickers to come into FARC-controlled areas any more and impose their own sets of command." (Trial Tr. AM Session 59, Mar. 23, 2010.)
Tovar testified that he visited the defendant's laboratory twice and he described the location and layout of the houses where the defendant, Sonia Valderrama, and Fabian Ramirez stayed. (Trial Tr. AM Session 36-37, Mar. 23, 2010.) The first time he visited the laboratory he did so at the behest of Ramirez, who called Tovar and requested that he bring a roll of black plastic tarp and then told him to deliver the tarp to the defendant at the laboratory. (Trial Tr. AM Session 37, Mar. 23, 2010.) When Tovar delivered the tarp he observed "[p]eople working, processing coca" and he said that the defendant was there. (Trial Tr. AM Session 37, Mar. 23, 2010.)
The second time Tovar visited the laboratory was late in 1998 when he was acting "as a marketing agent for this new drug trafficking project" initiated by Ramirez. (Trial Tr. AM Session 38, 39, 43, Mar. 23, 2010.). Tovar said his "role in this new drug trafficking policy of the FARC was to sell this policy to the drug traffickers." (Trial Tr. PM Session 47, Mar. 23, 2010.) At that time, Tovar introduced Ramirez to Jota, who was a Brazilian drug trafficker interested in obtaining 2,240 kilograms of cocaine hydrochloride for export to Brazil. (Trial Tr. AM Session 39, Mar. 23, 2010.) Ramirez agreed to provide the cocaine hydrochloride from the defendant's laboratory. Jota later sent a representative who, along with Tovar, went to the laboratory to oversee the first "load" of 320 kilograms of cocaine hydrochloride. (Trial Tr. AM Session 41, Mar. 23, 2010.) While they were at the laboratory they ate breakfast with the defendant. (Trial Tr. AM Session 41, Mar. 23, 2010.) Tovar said that the defendant's laboratory produced all 2,240 kilograms of cocaine hydrochloride, which Tovar transported by boat to an air strip for shipment to Brazil. (Trial Tr. AM Session 42, Mar. 23, 2010.)
Tovar also represented Ramirez in a deal with a Norte el Valle cartel trafficker who "needed 4000 to 5000 kilograms of cocaine to send per month to the United States, crystal." (Trial Tr. AM Session 44, Mar. 23, 2010.) Tovar told the Norte el Valle cartel trafficker "not to worry, that per week 3000 to 4000 kilos of cocaine base was produced each week, and I told him that there was a laboratory that existed that belonged to Mr. Fabian [Ramirez], and that it was responsibly managed by his brother, Mincho, and I also told him there was an airstrip." (Trial Tr. AM Session 44, Mar. 23, 2010.) When asked whether any of the FARC leaders above Ramirez were aware of the deal to move 4,000 to 5,000 kilograms of cocaine per month to the United States, Tovar responded:
[D]uring that time period, Mr. Fabian Ramirez was the second in command of the southern block [sic] of the FARC. The main commander was known as Joaquin Gomez. And Mr. Ramirez would tell me, for this kind of business, which was such a large scale, everything had to be consulted with the commander who was Joaquin Gomez.
(Trial Tr. AM Session 46, Mar. 23, 2010.) Although "[t]he operation was frustrated," Tovar testified that the defendant's laboratory had the capacity to produce 4,000 to 5,000 kilograms of cocaine per month. (Trial Tr. AM Session 49, Mar. 23, 2010.)
In 2000, Tovar assisted Ramirez to sell 560 kilograms of cocaine that were left over from a deal that involved sending 1,000 kilograms of high-purity cocaine to the United States. (Trial Tr. AM Session 60-61, Mar. 23, 2010.) The deal experienced setbacks that resulted in only 440 kilograms actually being sent to the United States. (Trial Tr. AM Session 61, Mar. 23, 2010.) Tovar helped sell the 560 kilogram overage to another drug trafficker. (Trial Tr. AM Session 62, Mar. 23, 2010.)
During part of his testimony Tovar explained how cocaine was delivered to him from the defendant's laboratory. Tovar said that Sonia Valderrama was the Finance Officer of the 14th Front during this time period and "Erminso [the defendant] would send the drugs to Sonja [sic], who then in turn would store them, and then she would send them to Boris or Jimmy, men who were her trusted — who were trusted by Sonja [sic], who would then deliver them to me." (Trial Tr. AM Session 53, Mar. 23, 2010.) Tovar stated that "the drugs left [the defendant's laboratory] immediately, because one of the security measures was that they be moved immediately in case there should be a military operation carried out by the Colombian military authorities, and thus they would avoid — they would avoid having the drugs seized at the laboratory." (Trial Tr. AM Session 52, Mar. 23, 2010.)
Tovar also testified that he handled large amounts of United States currency for Ramirez, such as in 1999 when he delivered $330,000 to Sonia Valderrama for Ramirez. (Trial Tr. AM Session 55, Mar. 23, 2010.) He also said that, in 2000, he delivered $550,000 to Ramirez that were proceeds from a transaction made at Sonia Valderrama's house that resulted in 1,000 kilograms of cocaine — "cooked in Mr. Erminso's [the defendant's] kitchen" — being exported to Suriname. (Trial Tr. AM Session 56, 57, Mar. 23, 2010.) Tovar said he handed the money over to Ramirez in front of the defendant's laboratory and that the defendant was there "and he said that is good business. Show me the money." (Trial Tr. AM Session 56, Mar. 23, 2010.) The defendant also was present when they counted the money. (Trial Tr. AM Session 56, Mar. 23, 2010.)
In 2004, when Ramirez returned to the Caguan region after a two-year absence, he met with Tovar and the defendant to discuss retaking control of drug trafficking in the region, which had been diminished by the Colombian government's military presence. (Trial Tr. AM Session 62-63, Mar. 23, 2010.) Tovar said that during the meeting Ramirez:
[A]sked us, Mr. Mincho and myself, who were completely trusted by him to help reactivate drug trafficking along the Caguan River, and he delegated us roles. Mr. Mincho was given the role of going to Bogota, which was not a problem for him, to make contact with drug traffickers, to either ask for a loan of money, or for them to come down to meet him in person, as a way of reactivating the drug trafficking again.
(Trial Tr. AM Session 63, Mar. 23, 2010.) Tovar testified that the defendant traveled to meet with the drug traffickers in a place near Bogota and Tovar talked to the defendant by phone and conveyed to Ramirez "how the management of the situation was going between Mr. Mincho and the drug traffickers." (Trial Tr. AM Session 64, Mar. 23, 2010.) Recordings of conversations between the defendant and Tovar, during which they discussed the defendant's efforts to meet with drug traffickers and the traffickers' reluctance to agree to a loan, were admitted into evidence during the trial. (Trial Tr. AM Session 65-73, Mar. 23, 2010; Trial Tr. PM Session 3-10, Mar. 23, 2010.) The defendant was arrested several weeks after the recorded conversations took place. (Trial Tr. PM Session 10, Mar. 23, 2010.)
Tovar concluded his testimony by stating that the defendant "had maximum responsibility" for manufacturing cocaine for the 14th Front and he was "[t]he only person with that level of responsibility." (Trial Tr. PM Session 29, Mar. 23, 2010.)
The trial took nearly six weeks and ended with the jury returning a guilty verdict against both the defendant and Martinez Vega on April 13, 2010. The defendant now seeks to have the Court set aside the jury verdict against him and enter a judgment of acquittal or, alternatively, grant him a new trial or dismiss the indictment.
II. MOTION FOR A JUDGMENT OF ACQUITTAL
Rule 29 of the Federal Rules of Criminal Procedure authorizes a court to set aside a guilty verdict and enter a judgment of acquittal in response to a defendant's timely motion. Fed.R.Crim.P. 29(c)(1)-(2). When considering a motion for acquittal, the Court determines whether "viewing the evidence in the light most favorable to the Government, according the Government the benefit of all legitimate inferences, and recognizing that it is the jury's province to determine credibility and to weigh the evidence, a reasonable jury must necessarily entertain a reasonable doubt on the evidence presented." United States v. Singleton, 702 F.2d 1159, 1163 (D.C. Cir. 1983) (Tamm, J.) (emphasis in original). "If the evidence reasonably permits a verdict of acquittal or a verdict of guilt, the decision is for the jury to make." Curley v. United States, 160 F.2d 229, 237 (D.C. Cir. 1947) (Prettyman, J.).
A. Variance
The defendant first claims that the evidence proved at trial impermissibly varied from the allegations in the indictment by establishing multiple conspiracies rather than a single conspiracy. (Def.'s Mot. for Acquittal 5-8.) According to the defendant, the trial evidence proved the following multiple conspiracies: (1) "[a]n alleged conspiracy to manufacture and distribute cocaine involving numerous drug traffickers;" (2) "[a]n alleged conspiracy to manufacture and distribute cocaine, intending or knowing that such cocaine would be imported into the United States, involving Fabian Ramirez, Ferney Tovar Parra, and . . . Cesar Augusto Perez Parra;" (3) "[a]n alleged conspiracy to distribute cocaine, intending or knowing that such cocaine would be imported into the United States, Suriname, Africa, Mexico;" (4) "[a]n alleged conspiracy to manufacture and distribute cocaine, involving Fabian Ramirez and right-wing paramilitary organizations in Colombia;" and (5) "[a]n alleged conspiracy to overthrow the government of the Republic of Colombia involving the FARC." (Def.'s Mot. for Acquittal 7-8.) The defendant asserts that he was prejudiced by the variance between the indictment's single charged conspiracy and the multiple conspiracies he claims were proven at trial because he "[e]ssentially . . . was tried for felonies not contained within his indictment, in violation of the Fifth Amendment" and "his Sixth Amendment right to be informed of the nature of the accusations against him was also violated." ( Id. at 8.) The defendant also complains that the variance prevented him from adequately preparing his defense and resulted in evidence against his co-defendant, Juan Jose Martinez Vega, "spilling over" and being transferred to the defendant. ( Id.)
A judgment of acquittal is warranted based on a variance between the allegations in the indictment and the proof at trial if the defendant shows that (1) the trial evidence established facts that varied materially from the indictment's allegations and (2) the variance caused substantial prejudice. United States v. Celis, 608 F.3d 818, 845 (D.C. Cir. June 18, 2010) (per curiam). "In a conspiracy prosecution, for example, the appellant may prove (1) that the evidence established the existence of multiple conspiracies, rather than the one conspiracy alleged in the indictment, and (2) that because of the multiplicity of defendants and conspiracies, the jury was substantially likely to transfer evidence from one conspiracy to a defendant involved in another." United States v. Tarantino, 846 F.2d 1384, 1391 (D.C. Cir. 1988) (per curiam) (internal citations omitted). When considering whether the evidence established the existence of multiple conspiracies versus a single conspiracy, "we must view `the evidence in the light most favorable' to the government, asking `whether any rational trier of fact could have found the essential elements of [conspiracy] beyond a reasonable doubt.'" United States v. Carson, 455 F.3d 336, 375 (D.C. Cir. 2006) (per curiam) (quoting United States v. Graham, 83 F.3d 1466, 1471 (D.C. Cir. 1996) (Tatel, J.) (emphasis and alteration in original)). It is well established, however, that "[t]he verdict must be upheld if the evidence adequately supports a finding that a single conspiracy existed." Id. Ultimately, "[t]he true inquiry . . . is not whether there has been a variance in proof, but whether there has been such a variance as to `affect the substantial rights' of the accused." Berger v. United States, 295 U.S. 78, 82 (1935) (Sutherland, J.).
In narcotics cases like this one, "[a] single conspiracy may be established when each conspirator knows of the existence of the larger conspiracy and the necessity for other participants, even if he is ignorant of their precise identities." Id. In such cases, a "single conspiracy is proven if the evidence establishes that each conspirator had the specific intent to further the common unlawful objective." Id. Furthermore, "a single conspiracy can `pursue multiple schemes with different modi operandi without dividing into multiple conspiracies, as long as there is a single objective.'" United States v. Brockenborrugh, 575 F.3d 726, 737 (D.C. Cir. 2009) (Griffith, J.) (quoting United States v. Hemphill, 514 F.3d 1350, 1364 (D.C. Cir. 2008) (Brown, J.)). "Whether a course of conduct should be classified as a single conspiracy or divided into multiple conspiracies depends on whether the participants shared a common goal, were dependent upon one another, and were involved together in carrying out at least some parts of the plan," id., although overlap among alleged participants is "less significant," Graham, 83 F.3d at 1471.
Viewing the evidence in the light most favorable to the government, the Court finds that it adequately supports a finding by a rational trier of fact that a single conspiracy existed to import five kilograms and more of cocaine into the United States and manufacture and distribute five kilograms and more of cocaine knowing and intending that the cocaine would be unlawfully imported into the United States. As summarized above, the trial evidence showed that, beginning in the late 1990s and continuing through the early to mid 2000s, the FARC occupied large regions of Colombia and took over all aspects of cocaine trafficking in those regions by monopolizing the purchase of cocaine base from peasants and farmers, establishing policies and procedures to increase the purity of the cocaine base, processing the cocaine base into cocaine hydrochloride at its own laboratories, and then establishing a distribution network through narcotics traffickers to sell the cocaine in the United States for profit. Notably, witnesses testified that it was commonly known and discussed among the conspiracy participants at all levels, from the FARC's leadership and commanders to the workers in the cocaine laboratories, that cocaine the FARC was manufacturing and distributing was destined for the United States.
In the 14th Front, which included the region around the Caguan River, Fabian Ramirez furthered the FARC's efforts to dominate the cocaine trade and increase its revenues by shutting down private cocaine hydrochloride laboratories and setting up his own laboratory that was operated by his brother, the defendant. Witnesses offered testimony that confirmed and corroborated that: the defendant operated the large cocaine laboratory where cocaine base was processed into cocaine hydrochloride; was present when thousands of kilograms of cocaine base were being weighed and tested at Penas Coloradas; would review and make an accounting of the cocaine base when the 14th Front's Finance Officer was weighing, testing and repackaging it for shipment to the defendant's laboratory; directed the Finance Officer that Ramirez wanted the testing to be done more thoroughly; supervised loading the cocaine base onto boats for transport to his laboratory; instructed the pilots of speed boats about where to transport the cocaine for a transaction; produced thousands of kilograms of cocaine hydrochloride weekly for deals arranged between Ramirez and narcotics traffickers, including deals that involved shipping cocaine to the United States; and arranged meetings with narcotics traffickers at Ramirez's behest in an effort to revitalize the cocaine trade in the Caguan River region at a time when activity had slowed because of the Colombian military's activities there.
Significantly, the trial evidence established a virtually seamless and dependent relationship between the defendant and at least two of the FARC's leadership — Fabian Ramirez and Sonia Valderrama — with respect to the conspiracy's goal of violating United States narcotics laws by importing cocaine into the United States and manufacturing and distributing cocaine knowing and intending that it would be imported into the United States. In the final analysis, the trial evidence revealed that it was of no real consequence that the defendant was not an official member of the FARC because he nevertheless was quite integral, integrated and involved in the FARC's efforts to monopolize and profit from the cocaine trade in the regions it controlled, such as the 14th Front. The defendant and the other conspiracy participants shared a common purpose to further the conspiracy's goals and were dependent on each other to accomplish them. The FARC could not profit from the cocaine trade without monopolizing the market for cocaine base in the geographic areas it occupied, which was an effort that Sonia Valderrama supervised for the 14th Front and the defendant participated in by reviewing and accounting the weighing and testing of the cocaine base. The FARC could not realize the profitability of the cocaine base in the 14th Front without the defendant's laboratory processing it into cocaine hydrochloride and the defendant working with his brother, Fabian Ramirez, and narcotics traffickers to market it. It is well established in this jurisdiction that:
[W]hile proof of conspiracy requires proof of an agreement, the jury may infer this agreement from the defendant's knowing participation in a distribution network organized along division of labor principles-in which his own role necessarily depends on the cooperation of other parties to that network: "The existence of such a vertically integrated, loose-knit combination may raise the inference that each conspirator has
agreed with the others (some whose specific identity may be unknown) to further a common unlawful objective, e.g., the distribution of narcotics."
United States v. Childress, 58 F.3d 693, 710 (D.C. Cir. 1995) (per curiam) (quoting
Tarantino, 846 F.2d at 1393)).
See also United States v. Agueci, 310 F.2d 817, 827 (2d Cir. 1962) (Kaufman, J.) ("An individual associating himself with a `chain' conspiracy knows that it has a `scope' and that for its success it requires an organization wider than may be disclosed by his personal participation.") In this case, all the participants were involved together in carrying out at least some parts of the common unlawful objectives of the conspiracy as demonstrated by the intertwining and overarching activities of the FARC, Fabian Ramirez, Sonia Valderrama, the defendant and the narcotics traffickers who distributed and transported the cocaine for the FARC. Accordingly, reviewing the trial evidence in the light most favorable to the government, it was more than adequate to establish a single conspiracy to violate United States narcotics laws by importing cocaine into the United States and manufacturing and distributing cocaine knowing and intending that it would be imported into
the United States, and to establish that the defendant was part of that single conspiracy as an associate of the FARC who manufactured the very cocaine hydrochloride that made the success of the conspiracy possible.
Furthermore, the defendant's argument that he was tried for felonies not contained in the indictment lacks merit, as does his claim that he was prejudiced by the indictment's failure to inform him of the nature of the accusations against him, which he contends prevented him from preparing an adequate defense. (Def.'s Mot. for Acquittal 8.) In actuality, when the indictment is compared to the trial evidence, see Background, supra, there is no overlooking the fact that the indictment was practically a roadmap of the very evidence admitted at trial. Thus, the defendant cannot credibly claim surprise and the defendant's substantial rights were not affected by a variance.
B. Prejudicial Joinder
In a separate but related argument, the defendant complains that evidence of multiple conspiracies at trial and his joinder with his co-defendant caused him "irreparable prejudice." (Def.'s Mot. for Acquittal 10.) The defendant takes issue with the nature of the evidence about the FARC that was admitted against his co-defendant, id. at 9, and suggests that "it would be nearly impossible to overestimate the `spillover' effect of the FARC testimony upon Mr. Cuevas," id. at 10.
The Court looks at three factors to determine how difficult it was for a jury to separate allegations against multiple defendants: (1) the number of co-defendants, (2) whether the government presented tape recordings involving the individual defendants, and (3) whether the court issued clarifying jury instructions. Celis, 608 F.3d at 845. After considering these factors, this Court is not persuaded that the defendant was irreparably harmed by the alleged spillover of evidence at his trial.
Even setting aside the Court's determination that the trial evidence adequately proved a single conspiracy, the fact of the matter is that there were only two defendants in this trial and the presentation of evidence, with the exception of expert testimony about the cocaine routes from Colombia and the general structure of the FARC, was quite compartmentalized with respect to each defendant, particularly since each defendant was involved with a different FARC Front in separate geographical regions of Colombia. As a consequence, there really was no mistaking which defendant was implicated by the evidence and, as a corollary, there was little risk of spillover. As the D.C. Circuit has observed, "[t]he risk of `spillover prejudice,' which may occur when a jury imputes evidence from one conspiracy to a defendant involved in another conspiracy, is less likely the fewer the defendants." United States v. Gaviria, 116 F.3d 1498, 1533 (D.C. Cir. 1997) (per curiam).
Furthermore, intercepted communications between the defendant and witness Ferney Tovar Parra were admitted during the trial and those communications involved discussions about illegal activities. (Trial Tr. AM Session 65-73, Mar. 23, 2010.) "When the government presents an audio or video recording of the defendant discussing criminal acts, the risk of prejudicial spillover is minimal because the jury has `no need to look beyond each defendant's own words in order to convict.'" Celis, 608 F.3d at 846 (quoting United States v. Anderson, 39 F.3d 331, 348 (D.C. Cir. 1994) (per curiam)).
Likewise, the government introduced intercepted audio communications involving co-defendant Martinez Vega discussing criminal acts. (Trial Tr. AM Session 43-54, Mar. 18, 2010; Trial Tr. PM Session 3-19, Mar. 18, 2010.)
The Court also instructed the jury that "[i]n deciding whether . . . Erminso Cuevas Cabrera . . . became a member of that conspiracy, you may consider only the acts and statements of that particular defendant." Final Jury Instructions 33. The Court further instructed the jury that "[y]ou should give separate consideration, and render separate verdicts, with respect to each defendant. Each defendant is entitled to have the issue of his guilt of the crime for which he is on trial determined from his own conduct and from the evidence that applies to him, as if he were being tried alone. The fact that you may find one defendant guilty or not guilty should not influence your verdict as to any other defendant." Id. at 50. These instructions served to clarify for the jurors that they may consider only the evidence admitted against the defendant, and not evidence admitted against his co-defendant, when deliberating about his guilt. "The jury is presumed to follow the instructions." United States v. Hall, 610 F.3d 727, 742 (D.C. Cir. 2010) (Rogers, J.).
Given that there were only two defendants, audio recordings were admitted against each defendant, and jury instructions made clear that the jury must compartmentalize the evidence against the two defendants, the Court finds that any alleged variance from the indictment was not prejudicial to the defendant and does not warrant a judgment of acquittal. Celis, 608 F.3d at 846.
C. Sufficiency of the Evidence
The defendant disputes the sufficiency of the trial evidence to establish that he knew that the cocaine involved in the conspiracy would be unlawfully imported into the United States, in which case he asserts that he is entitled to a judgment of acquittal. (Def.'s Mot. for Acquittal 10-11.) Presented with a motion for a judgment of acquittal on the ground that the evidence is insufficient, the Court must consider "whether, viewing the evidence in the light most favorable to the Government, according the Government the benefit of all legitimate inferences, and recognizing that it is the jury's province to determine credibility and to weigh the evidence, a reasonable jury must necessarily entertain a reasonable doubt on the evidence presented." United States v. Singleton, 702 F.2d 1159, 1163 (D.C. Cir. 1983) (Tamm, J.). "In reviewing the evidence, we keep in mind that proof of [the defendant's] intent or knowledge may take the form of circumstantial as well as direct evidence." United States v. Martinez, 476 F.3d 961, 968 (D.C. Cir. 2007) (Kavanaugh, J.) (internal quotation marks omitted). "If the evidence reasonably permits a verdict of acquittal or a verdict of guilt, the decision is for the jury to make." United States v. Curley, 160 F.2d 229, 237 (D.C. Cir. 1947) (Prettyman, J.).
The trial evidence showed that the FARC conducted a large-scale cocaine-trafficking operation that was organized geographically and carried out by the various Fronts to fund the FARC's organization and leadership. In the 14th Front, the defendant reviewed and documented the accounting of thousands of kilograms of cocaine base that FARC guerillas delivered to Penas Coloradas, where it was tested and weighed by the 14th Front's Finance Officer, Sonia Valderrama, before being loaded on boats and transported to a laboratory the defendant operated for Front leader Fabian Ramirez, who was his brother. The defendant was the "boss" of Fabian Ramirez's laboratory, supervising around 80 workers and manufacturing thousands of kilograms of cocaine base into cocaine hydrochloride. The trial evidence established that the cocaine's ultimate destination to the United States was a common topic of conversation when Sonia Valderrama and others were weighing and testing the cocaine at Penas Coloradas, workers at the defendant's laboratory discussed the fact that the cocaine being manufactured there was destined for the United States, and a FARC Bloc commander even talked about the importation of cocaine to the United States as a matter of FARC policy. The defendant was involved in cocaine deals with narcotics traffickers, including at least one that involved shipping cocaine directly to the United States. In addition, witness testimony revealed that hundreds of thousands of dollars of United States currency was circulating among the conspiracy's participants and that, at times, payment for the cocaine base that the defendant processed was not possible because United States dollars had not been converted to Colombian pesos. Moreover, expert testimony established that the United States was a primary destination for cocaine from Colombia.
All this evidence, which as the court noted is not exhaustive of what was admitted at trial, and the legitimate inferences that can be drawn therefrom, is sufficient to show that, not only was the defendant integrally involved in the FARC's large-scale conspiracy to manufacture cocaine to fund its efforts, but it also can be reasonably and legitimately inferred from this evidence that the defendant manufactured cocaine with the knowledge and intent that it would be imported to the United States. Martinez, 476 F.3d at 968. Even if considered a close call, the evidence reasonably permits a verdict of acquittal or a verdict of guilt, in which case the decision was for the jury to make. Curley, 160 F.2d at 237.
See n. 1, supra.
III. MOTION FOR A NEW TRIAL
Rule 33 of the Federal Rules of Criminal Procedure provides that "the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed.R.Crim.P. 33(a). "The Rule does not define `interests of justice' and the courts have had little success in trying to generalize its meaning." United States v. Kuzniar, 881 F.2d 466, 470 (7th Cir. 1989) (Flaum, J.). "Nevertheless, courts have interpreted the rule to require a new trial `in the interests of justice' in a variety of situations in which the substantial rights of the defendant have been jeopardized by errors or omissions during trial." Id.
A. Allegation of Improper Prosecutorial Remarks During Closing Arguments
The defendant objects to the prosecutor's comment during closing statements that "the problems of Colombia are a lot closer than they may appear. A lot of the problems right here in Washington, D.C., in New York City, Detroit where I grew up, they can be traced right back to the thousands of pounds of cocaine coming out of Colombia out of this conspiracy." (Trial Tr. AM Session 121, Apr. 7, 2010.) The defendant argues that "[b]y contending, for the first time in the trial, that cocaine in Detroit, Washington, D.C. and New York originated in Colombia and, inferentially, was produced by Mr. Cuevas, the prosecutor impermissibly placed the jurors in the shoes of the victims of drug abuse." (Def.'s Mot. for Acquittal 15.) The defendant argues that the prosecutor's "remarks in this regard were a blatant attempt to appeal to the jury's emotions and sympathies for victims of drug abuse generally and in the community in particular." Id.
"The touchstone of a prosecutorial misconduct claim is prejudice: the court must consider `the probable effect the prosecutor's [statements] would have on the jury's ability to judge the evidence fairly.'" United States v. Thomas, 114 F.3d 228, 246 (D.C. Cir. 1997) (Wald, Silberman Rogers, J.) (quoting United States v. Young, 470 U.S. 1, 12 (1985)). "To determine whether improper remarks by the prosecutor have substantially prejudiced a defendant's trial, the court looks to `the severity of the misconduct, the measures adopted to cure the misconduct, and the certainty of conviction absent the improper remarks.'" Id. (quoting United States v. Williams-Davis, 90 F.3d 490, 507 (D.C. Cir. 1996) (Williams, J.)).
It is well established that "[a] prosecutor may not make comments designed to inflame the passions or prejudices of the jury" or "ask jurors to find a defendant guilty as a means of promoting community values, maintaining order, or discouraging future crime." United States v. Johnson, 231 F.3d 43, 47 (D.C. Cir. 2000). Even assuming without deciding that the prosecutor's remarks violated this tenet, however, the Court is not persuaded that the comment substantially prejudiced the defendant's trial. The comment was isolated, brief and occurred during a lengthy closing argument that covered about six weeks of evidence in a complex narcotics-conspiracy case. The jury heard trial testimony about the percentage and volume of cocaine imported from Colombia into the United States, so a comment suggesting that cocaine entering this country finds its way to major cities was not particularly noteworthy.
"When taken in context of the entire trial and the lengthy closing arguments and rebuttal, the objectionable references did not significantly detract from the proper focus of the argument." United States v. Oberle, 136 F.3d 1414, 1422 (10th Cir. 1998) (Ebel, J.). The Court instructed the jury that "[t]he statements and arguments of the lawyers are not evidence," Jury Instructions 10, and "[r]egardless of the prosecutor's statement, the evidence clearly supported the jury's verdict." United States v. Johnson, 231 F.3d 43, 49 (D.C. Cir. 2000). The Court therefore concludes that the prosecutor's comment did not affect the jury's ability to judge the evidence fairly and the defendant was not substantially prejudiced.
B. Denial of Motions to Sever
The defendant insists that he suffered "substantial and irreparable prejudice" as a result of being tried with co-defendant Martinez Vega so it was improper for the Court to deny the motions for severance he made before and during trial. (Def.'s Mot. for Acquittal 19-21.) By the defendant's account, the "weight of the evidence" offered against his co-defendant "was far greater" than the evidence offered against him, and the "majority of evidence presented by the government" related to the FARC's activities, which was unrelated to him because he is not a FARC member. ( Id. at 20.)
Although Rule 14(a) of the Federal Rules of Criminal Procedure permits a court to sever the trials of multiple defendants if joinder will prejudice a defendant, "[t]he Supreme Court has instructed district courts to grant severance `only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.'" Celis, 608 F.3d at 844 (quoting Zafiro v. United States, 506 U.S. 534, 539 (1993)). "District courts should grant severance sparingly because of the `strong interests favoring joint trials, particularly the desire to conserve the time of courts, prosecutors, witnesses, and jurors.'" Id. (quoting United States v. Mardian, 546 F.2d 973, 979 (D.C. Cir. 1976)).
It is well established that "[t]he critical determination in evaluating a motion to sever the case of two or more co-defendants is whether a jury could reasonably compartmentalize the evidence introduced against each individual defendant." United States v. Hernandez, 780 F.2d 113, 119 (D.C. Cir. 1986). Without belaboring the point, and as the Court already indicated, there were only two defendants who went trial in this case and the evidence was very compartmentalized with respect to each of them. Each defendant had a very specific role in the conspiracy (the defendant operated a large laboratory that manufactured cocaine whereas his co-defendant transported and traded cocaine and weapons), each defendant was tied to separate FARC Fronts that were in different geographical regions of Colombia, and each defendant had established and integral relationships with leaders in their respective Fronts who easily could be distinguished by name and events. Finally, "[t]he jury could assess [the defendant's] personal culpability because it heard a significant amount of evidence relating to his own unlawful acts quite apart from anything said about the FARC." Celis, 608 F.3d at 845. For all these reasons no severance was warranted before or during trial, and no new trial is required in the interest of justice.
C. Weight of the Evidence
The defendant's last contention is that the weight of the evidence does not support his conviction. (Def.'s Mot. for Acquittal 21-22.) "In considering a new trial motion based on the weight of the evidence the district judge weighs the evidence and evaluates the witnesses' credibility and decides whether a serious miscarriage of justice may have occurred." United States v. Dale, 991 F.2d 819, 838 (D.C. Cir. 1993) (per curiam).
After consideration of all the trial evidence, much of which is summarized in this opinion and involved eye-witness accounts of the defendant's criminal activities and conduct in furtherance of the conspiracy, and after evaluating the witnesses' credibility in light of their demeanor at trial, the rationality of their testimony, internal consistencies, and "the manner in which it hangs together with other evidence," Carbo v. United States, 314 F.2d 718, 749 (D.C. Cir. 1963), the Court is persuaded that the weight of the evidence favors conviction and no miscarriage of justice occurred. Although many of the witnesses were former FARC guerillas who demobilized and entered a program offered by the Colombian government that provides these individuals with benefits, education and immunity from prosecution for their crimes, their testimony was plausible and convincing and consistent to the extent that they each described the defendant engaging in similar criminal activities under similar circumstances (e.g., accounting for cocaine while Sonia Valderrama tested and weighed it, arriving and departing by speed boat and loading boats with cocaine, and manufacturing thousands of kilograms of cocaine as the "boss" of a large cocaine laboratory), and they consistently testified about seeing him interacting with the same FARC leaders (e.g., Sonia Valderrama and Fabian Ramirez).
Additionally, in Parts II (A) and (C) supra, the Court found that there was sufficient evidence to support the defendant's conviction for participating in a single conspiracy to violate United States narcotics laws by importing into the United States five kilograms and more of mixtures and substances containing detectable amounts of cocaine and manufacturing and distributing five kilograms and more of mixtures, compounds and substances containing detectable amounts of cocaine, and coca leaves, intending and knowing that these controlled substances would be unlawfully imported into the United States. Likewise, the Court finds that the weight of this same evidence also favors conviction and no miscarriage of justice occurred.
CONCLUSION
For the foregoing reasons, the Court will deny Erminso Cuevas Cabrera's Motion For A Judgment Of Acquittal, Or, In The Alternative, Motion For New Trial And Motion To Dismiss [Docket No. 270]. An appropriate order will accompany this Memorandum Opinion.