U.S. v. Portela

• Decision Date: 09 February 1999
• Docket Number: Nos. 97-2353,97-2354 and 97-2355,s. 97-2353
• Parties: 51 Fed. R. Evid. Serv. 500 UNITED STATES of America, Plaintiff-Appellee, v. Rafael PORTELA, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Francisco Villaman-Rodrguez, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Juan A. Carrasquillo, Defendant-Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 687

167 F.3d 687

51 Fed. R. Evid. Serv. 500

UNITED STATES of America, Plaintiff-Appellee, v. Rafael PORTELA, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Francisco Villaman-Rodrguez, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Juan A. Carrasquillo, Defendant-Appellant.

Nos. 97-2353, 97-2354 and 97-2355.

United States Court of Appeals,

First Circuit.

Feb. 9, 1999.

Rehearing and Suggestion for Rehearing En Banc Denied March

22, 1999.

Lydia Lizarribar-Masini, by appointment of the Court, for appellant Portela, Ramn L. Garay-Medina for appellant Villaman-Rodrguez, and Teodoro Mendez-Lebrn for appellant Carrasquillo.

Stephen Muldrow for appellee United States of America, with whom Guillermo Gil, United States Attorney, Jose A. Quiles-Espinosa, Senior Litigation Counsel, and Camille Velez-Rive and Nelson Perez-Sosa, Assistant United States Attorneys, were on briefs for appellee.

Before SELYA, BOUDIN and LIPEZ, Circuit Judges.

LIPEZ, Circuit Judge.

Rafael Portela, Francisco Villaman-Rodrguez and Juan Antonio Carrasquillo were each convicted by a jury, after a joint trial with one other co-defendant, of conspiracy to possess multiple kilograms of cocaine with intent to distribute, and specific instances of cocaine possession with intent to distribute, most such instances occurring in the course of the larger conspiracy. On appeal each defendant claims that the indictment alleged a single conspiracy, but the facts adduced at trial proved the existence of multiple conspiracies and that they were thereby wrongly convicted on the overarching conspiracy count. In addition, Villaman-Rodrguez and Carrasquillo both object to the use of alleged hearsay testimony against them at trial. Villaman-Rodrguez objects to the exclusion of alibi evidence in his case, and to the government's alleged withholding of other evidence he claims is in its possession. Portela objects to the district court's charge to the jury, and advances objections to his sentencing. Finding the evidence sufficient to sustain the single-conspiracy convictions and finding no other errors, we affirm.

Factual background

The indictment in this case alleged that seventeen named conspirators were involved in a series of cocaine transactions dating from November 1993 through July 1996 in which cocaine was purchased in Puerto Rico and transported to the mainland using a variety of methods. The government's case relied primarily on the testimony of Luis Chevere, a central figure in every drug transaction described below, who, after being arrested in May 1995 in connection with an attempted purchase of ten kilograms of cocaine, cooperated in a subsequent sting operation and testified as a government witness. "We recite the facts in the light most favorable to the verdicts being appealed." United States v. Shifman, 124 F.3d 31, 33 (1st Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 1053, 140 L.Ed.2d 116 (1998).

1. Transactions prior to Chevere's arrest and decision to cooperate with the government

The indictment's conspiracy count includes within its scope several purchases of cocaine by Chevere in which there was no direct involvement by any of the defendants in this appeal. We describe these transactions briefly (interwoven chronologically with transactions involving the defendant-appellants) in order to convey a sense of the scope and nature of the conspiracy as a whole.

In November 1993, Chevere, in cooperation with several drug distributors (Carlos, Joel and Samuel Rivera-Maldonado) in Rochester, New York, traveled to Puerto Rico and purchased a kilogram of cocaine from a supplier known to them only as "Luis." Chevere managed to smuggle this cocaine onto his return flight to Rochester in his check-in baggage, after swapping an inspection sticker from a contraband-free bag onto the bag with the cocaine in it. The cocaine was sold through Carlos Rivera-Maldonado; the proceeds were saved for future purchases.

In December 1993, Chevere again traveled to Puerto Rico, along with Samuel Rivera-Maldonado, and purchased another kilogram of cocaine, this time from one Alex Cruz-Rojas. This cocaine was sent via Express Mail to Rochester where Carlos Rivera-Maldonado sold it. Again, the proceeds were reserved for future purchases.

In April 1994, Chevere traveled to Puerto Rico with his former sister-in-law with the intent of executing a cocaine transaction to raise money for her financially-troubled boyfriend. They purchased three kilograms of cocaine from Alex Cruz-Rojas and mailed them to the boyfriend in Rochester, where the boyfriend sold them. Chevere kept the profits from the sale of one of the three kilograms.

September 1994: defendant Carrasquillo's transaction

Sometime around September 1994, Cruz-Rojas called Chevere and asked to meet him in Boston. In Boston, Cruz-Rojas and Reynaldo Maysonet (an unindicted co-conspirator) asked Chevere to travel to Puerto Rico and purchase two kilograms of cocaine from a man whom they referred to as "Don Tony" for $19,000 in cash which they would provide. Chevere questioned the amount as too low a price for two kilograms, but was reassured that Don Tony owed Cruz-Rojas and Maysonet money in relation to some prior jewelry transactions and planned to discharge his indebtedness to them by providing them with cocaine. Chevere took Don Tony's phone number from Cruz-Rojas and recorded it in his phone book.

The following morning Chevere traveled to Puerto Rico. Several days later, Juan Antonio (Tony or Don Tony) Carrasquillo came to Chevere's hotel room during the evening, picked up the cash and, later that night, returned to deliver two kilograms of cocaine. Chevere took the two kilograms with him on his return flight to Rochester, using the same inspection-sticker swap technique he had used in November 1993. In Rochester he delivered the cocaine to Cruz-Rojas and Maysonet.

At trial, Chevere described this transaction. He related his conversations with Cruz-Rojas and Maysonet, during which they described prospectively Don Tony's role in the transaction. There was also corroborating evidence in the form of phone records of a call made by Carrasquillo to either Cruz-Rojas or Maysonet in Boston, and an entry in Chevere's phone book, which was seized upon his arrest, listing Carrasquillo's business, beeper and cell phone numbers.

In late October 1994, Chevere returned to Puerto Rico and purchased another kilogram of cocaine from yet another supplier, William Santiago-Coln. Chevere attempted to send the cocaine to Rochester by Express Mail, but it was apparently intercepted by law enforcement before its arrival.

In March 1995, Chevere again traveled to Puerto Rico, where Santiago-Coln introduced him to "Don Pedro" Rodrguez, who sold Chevere a kilogram of cocaine. Chevere took the cocaine back to Rochester with him, and sold it there. Part of the funds used by Chevere to make the initial purchase was provided by an associate of Cruz-Rojas, and the proceeds of the sale were reserved for future purchases.

April 1995: defendant Villaman-Rodrguez's transaction

In early April 1995, Chevere and his friend and fellow narcotics trafficker Roselio "Julio" Avila contacted Don Pedro, who said he had a friend who could supply them with four kilograms of cocaine. Chevere traveled to Puerto Rico and met Don Pedro at a bar owned by the latter. A man whom Don Pedro identified as "Chico" arrived in a red Chevrolet Camaro. Don Pedro explained that Chico was to procure the four kilograms of cocaine. Chico left the bar with Don Pedro, and Don Pedro later returned to the bar on foot. Chico returned to the bar in Don Pedro's car, but did not reenter, speaking from the car to Don Pedro out on the street. Don Pedro returned with instructions for Chevere to walk to Don Pedro's nearby apartment with Don Pedro's henchman, where the cocaine was actually delivered. This cocaine was sent to Rochester via the mails, but was interdicted by law enforcement before it arrived.

At trial, Chevere identified Francisco Villaman-Rodrguez in open court as the "Chico" in question. There was a stipulation that Villaman-Rodrguez owned a red Camaro at the time of the transaction. Significant sections of Chevere's testimony were accounts of what Don Pedro told him about Chico's role in the transaction. "Chico" was an acknowledged nickname of Villaman-Rodrguez, and Chevere knew this "Chico" as a Dominican, which is in fact Villaman-Rodrguez's nationality. Finally, there was testimony from a police officer who had interviewed Villaman-Rodrguez, indicating that Villaman-Rodrguez admitted he knew Don Pedro.

April 1995: defendant Portela's first transaction

Having never received the four kilograms purchased from "Chico," Chevere and Avila again traveled to Puerto Rico in April 1995. Chevere purchased a single kilogram from Jose Arizaga. Unhappy with the quality of this cocaine, Chevere resold it in Puerto Rico. Avila then acquired another kilogram from a supplier known only as "Freddy," but Avila expressed reservations about sending the cocaine back to Rochester via the mails since the last such shipment had not arrived.

Defendant Rafael Portela, a baggage handler for U.S. Air, had at some point in the past inquired whether Chevere wanted his help in moving drugs through the airport. Even before hearing Avila's misgivings about mailing the cocaine back to Rochester, Chevere, uncertain about the security of his inspection-sticker swap technique, had already decided to contact Portela again and solicit his assistance. After negotiating terms of payment, Portela helped successfully to move a bag containing one kilogram of cocaine past airport baggage security and onto a flight back to the mainland.

The evidence of this transaction advanced at trial consisted exclusively of Chevere's testimony.

2. May 1995: Chevere's arrest

In May 1995, Chevere and several other co-conspirators named in the indictment ...