175 F.3d 57 (1st Cir. 1999), 97-1604, United States v. Santana

Docket Nº:97-1604, 97-1617.
Citation:175 F.3d 57
Party Name:UNITED STATES, Appellee, v. Julio C. SANTANA, Defendant, Appellant.
Case Date:April 21, 1999
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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175 F.3d 57 (1st Cir. 1999)

UNITED STATES, Appellee,

v.

Julio C. SANTANA, Defendant, Appellant.

Nos. 97-1604, 97-1617.

United States Court of Appeals, First Circuit

April 21, 1999

Heard Feb. 4, 1999.

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[Copyrighted Material Omitted]

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Robert A. Costantino for appellant.

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Heidi E. Brieger, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, was on brief for appellee.

Before SELYA, Circuit Judge, BOWNES, Senior Circuit Judge, and LIPEZ, Circuit Judge.

LIPEZ, Circuit Judge.

Julio C. Santana appeals his convictions for conspiracy to possess cocaine base with intent to distribute in violation of 21 U.S.C. § 846 and for possession of cocaine base with intent to distribute in violation of 21 U.S.C. § 841. On appeal Santana challenges, inter alia, the court's decision to accede to the jury's request after the close of evidence and during its deliberations to return to the courtroom and observe Santana's ears, which had been covered by headphones used for Spanish translation throughout the course of the trial, and the sufficiency of the evidence. Although we find that there was sufficient evidence to convict Santana, we conclude that the court committed reversible error by allowing the jury to observe Santana's ears during its deliberations, and hence to consider extrinsic information not properly admitted during the trial. Accordingly, we vacate the judgment. 1

I.

We recite the facts in the light most favorable to the verdict, consistent with support in the record. See United States v. Santiago, 83 F.3d 20, 22 (1st Cir.1996). In 1994 the United States Drug Enforcement Administration ("DEA"), working in conjunction with the Worcester Police Department ("WPD"), began a year-long investigation of cocaine, crack, and heroin trafficking in Worcester, Massachusetts. The government was assisted in its investigation by Dien Van Huynh ("Huynh"), a confidential informant who agreed to engage in controlled purchases of drugs from suspected drug dealers. During the course of the investigations and prosecutions, the DEA paid Huynh a salary and reimbursed his expenses.

On November 8, 1994, DEA agents outfitted Huynh with a hidden monitoring device and gave him $2,000 to purchase two ounces of crack cocaine from a suspected drug dealer named Rudy Matos. As surveillance agents watched from a nearby location, Huynh waited for Matos at a local donut shop. Matos arrived in a blue Mazda, spoke briefly with Huynh from his car, and drove away. Fifteen minutes later Matos returned driving a black Mazda, spoke briefly with Huynh, and drove away again. After another fifteen minutes elapsed, Matos returned, this time driving a brown Datsun. Matos and Huynh then left together in the Datsun and traveled to a parking lot next to an apartment complex on Vernon Street in Worcester. As they sat in the parking lot, Matos told Huynh that his (Matos's) source for the crack cocaine drove a red Toyota 4-Runner with tinted windows.

Shortly thereafter a red Toyota 4-Runner with tinted windows registered to Julio Santana pulled into a parking lot next to the apartment complex. Matos entered the passenger's side of the 4-Runner, stayed for a moment, and then returned to the Datsun. Matos informed Huynh that the driver of the 4-Runner had only an ounce and a half of crack cocaine instead of the two ounces that Huynh had requested. Huynh agreed to purchase the smaller amount. Matos re-entered the 4-Runner, then exited and returned to the Datsun with the drugs in his pocket. Matos and Huynh drove away in the Datsun, followed by surveillance agents.

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In an effort to identify the occupant of the 4-Runner, Special Agent Brian Tomasetta had parked his surveillance vehicle in a position that would permit observation of the 4-Runner's driver "head-on" through the untinted front windshield as the vehicle departed the area. Agent Tomasetta identified Santana at trial as the person he had observed driving the 4-Runner, and recalled that the vehicle's sole occupant was

a ... male ..., non-Caucasian, or nonwhite. He was in his late 20s to early 30s. Very distinctive looking to me. By that I mean that he had close-cropped hair, very neat in appearance looking, possibly a mustache. And he had protruding ears or ears that stuck out. It was something that stuck out in my mind.

About twenty minutes after Agent Tomasetta observed the 4-Runner's driver as the vehicle left the Vernon Street location, he and WPD Sergeant Richard Burgos drove to J & M Telecommunications, a business owned by Santana. The 4-Runner was parked in front of the business, and a man was standing next to it. Agent Tomasetta remarked to Officer Burgos that this man was the same person he had seen twenty minutes earlier driving the 4-Runner away from the Vernon Street location. Officer Burgos, who knew Santana from prior dealings, stated that the man was Santana.

Several months later, on February 23, 1995, government agents executed a controlled purchase of heroin from Matos at his home at 57 Outlook Drive in Worcester. Working undercover and wearing a monitoring device, Agent Tomasetta purchased three ounces of heroin from Matos, and at the same time placed an order for crack cocaine to be delivered on short notice. A court-authorized pen register 2 indicated that minutes after Agent Tomasetta left 57 Outlook Drive, there was a call from that location to J & M Telecommunications, Santana's business. Surveillance agents then followed Matos to several locations, including J & M Telecommunications, where they observed Matos meet Santana at the door and enter the store with him. Approximately two hours later, Matos met again with Agent Tomasetta at 57 Outlook Drive, where he sold Tomasetta two ounces of crack cocaine.

Finally, on March 23, 1995, government agents planned another controlled purchase of crack cocaine from Matos. Equipped with a hidden transmitter and $3,000 in government funds, Huynh once again met Matos near the Worcester donut shop. During this meeting, Matos assured Huynh that the crack cocaine would be of good quality because his supplier was the "same guy, red truck." This transaction was never completed because Matos demanded more money than Huynh was authorized to pay.

In September 1995 a federal grand jury returned an indictment charging Santana and Matos with conspiring to possess cocaine base with intent to distribute, in violation of 21 U.S.C. § 846, and with possession of cocaine base with intent to distribute, in violation of 21 U.S.C. § 841. 3 Matos pleaded guilty and has not appealed his sentence. In the first prosecution against Santana, the jury was unable to reach a verdict and the case ended in a mistrial. At a second trial in April 1996, the jury found him guilty on both counts. The district court sentenced Santana to a 120 month term of incarceration followed

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by a 96 month term of supervised release. This appeal followed.

II.

Santana challenges the sufficiency of the evidence against him, arguing essentially that the government failed to introduce any direct evidence that it was he who sold the crack cocaine to Matos on either November 8, 1994, or on February 23, 1995. Although Santana moved unsuccessfully for a judgment of acquittal at the close of the government's case, he did not renew the motion after presenting evidence. See Fed.R.Crim.P. 29. Accordingly, our review is limited to the prevention of clear and gross injustice. See United States v. Santiago, 83 F.3d 20, 23 (1st Cir.1996); United States v. Taylor, 54 F.3d 967, 975 (1st Cir.1995); United States v. Clotida, 892 F.2d 1098, 1102-03 (1st Cir.1989).

In evaluating Santana's sufficiency challenge, we must determine whether the evidence, taken in the light most favorable to the government--a perspective that requires us to draw every reasonable inference and to resolve credibility conflicts in a manner consistent with the verdict--would permit a rational trier of fact to find each element of the crimes charged beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Santiago, 83 F.3d at 23. The government can meet this burden by either direct or circumstantial evidence, or by any combination of the two. See Santiago, 83 F.3d at 23; United States v. Boylan, 898 F.2d 230, 243 (1st Cir.1990); United States v. Campa, 679 F.2d 1006, 1010 (1st Cir.1982). Moreover, the...

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