United States v. Gustavo Alvarado, United States of America v. Oscar Oqueli-Hernandez

AMENDED OPINION

Gustavo Alvarado (Alvarado) and Oscar Oqueli-Hernandez (Oqueli) were indicted for conspiring to import (Count I), for importing (Count II), and for possessing with the intent to distribute (Count III), 12.7 kilograms of cocaine. A jury found both guilty on all counts. Alvarado and Oqueli sought a new trial charging that: 1) the trial judge gave an erroneous jury instruction, and 2) the prosecutor in his closing argument made false representations that warranted a mistrial. The court denied the motion and both were subsequently sentenced. Alvarado and Oqueli both appeal the trial court’s denial of their motions for a new trial.

I. FACTS

On July 22, 1986, Alvarado, Oqueli, Oqueli’s son Yuri, and Roberto Katan (Ka-tan) arrived at the Los Angeles airport on a Varig Airlines flight from Brazil. At the luggage carousel, Oqueli picked up Alvarado’s suitcase and Yuri’s suitcase and proceeded through customs. Oqueli showed the customs agent a diplomatic pass, and the agent allowed Oqueli to pass through without being checked. Oqueli was General Consul for Honduras from January, 1984 to January, 1985. His diplomatic pass had expired with the termination of his post, but…

concurring in part and dissenting in part:

I concur in all portions of Judge Anderson’s amended opinion except that which finds the Jewell instruction to have been harmless error with regard to defendant Alvarado. As the amended opinion correctly states, we may find the error harmless beyond a reasonable doubt only if the evidence was so overwhelming that a conviction was compelled. While there was certainly sufficient evidence for the jury to convict Alvarado, I cannot say that the evidence compelled such a result. The jury could rationally have chosen to believe Alvarado’s statements that the black bag was Oqueli’s and that he, Alvarado, did not know its contents. Indeed, something kept the jury deliberating for two days before *318 the Jewell instruction was given. I would therefore reverse Alvarado’s conviction and remand for a new trial.

Oqueli’s behavior in picking up the suitcases after Alvarado’s arrest, on the other hand, can only be consistent with guilt. I therefore agree with the majority that his conviction should be affirmed.

838 F.2d 311 UNITED STATES of America, Plaintiff/Appellee, v. Gustavo ALVARADO, Defendant/Appellant. UNITED STATES of America, Plaintiff/Appellee, v. Oscar OQUELI-HERNANDEZ, Defendant/Appellant. Nos. 85-5278, 85-5280. United States Court of Appeals, Ninth Circuit. Argued and Submitted Dec. 1, 1986. Decided May 18, 1987. Amended Jan. 28, 1988. Marilyn E. Butler, Federal Public Defender, Joseph F. Walsh, Los Angeles, Cal., for defendants-appellants. Manuel A. Medrano, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Central District of California. Before J. BLAINE ANDERSON, CANBY and WIGGINS, * Circuit Judges. AMENDED OPINION J. BLAINE ANDERSON, Circuit Judge: 1 Gustavo Alvarado (Alvarado) and Oscar Oqueli-Hernandez (Oqueli) were indicted for conspiring to import (Count I), for importing (Count II), and for possessing with the intent to distribute (Count III), 12.7 kilograms of cocaine. A jury found both guilty on all counts. Alvarado and Oqueli sought a new trial charging that: 1) the trial judge gave an erroneous jury instruction, and 2) the prosecutor in his closing argument made false representations that warranted…