216 F.3d 163 (1st Cir. 2000), 98-1808, United States v. Collazo-Aponte

Docket Nº:98-1808, 98-1933, 98-1938, 98-2116
Citation:216 F.3d 163
Party Name:UNITED STATES, Appellee, v. RAFAEL COLLAZO-APONTE, a/k/a RAFI, a/k/a RAFAELITO, Defendant, Appellant. UNITED STATES, Appellee, v. HERIBERTO ORTIZ-SANTIAGO, Defendant, Appellant. Page 164 UNITED STATES, Appellee, v. ANDRES COLON-MIRANDA, Defendant, Appellant. UNITED STATES, Appellee, v. EDWIN ORTIZ-FIGUEROA, Defendant, Appellant. UNITED STATES, Ap
Case Date:June 27, 2000
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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216 F.3d 163 (1st Cir. 2000)

UNITED STATES, Appellee,

v.

RAFAEL COLLAZO-APONTE, a/k/a RAFI, a/k/a RAFAELITO, Defendant, Appellant.

UNITED STATES, Appellee,

v.

HERIBERTO ORTIZ-SANTIAGO, Defendant, Appellant.

Page 164

UNITED STATES, Appellee,

v.

ANDRES COLON-MIRANDA, Defendant, Appellant.

UNITED STATES, Appellee,

v.

EDWIN ORTIZ-FIGUEROA, Defendant, Appellant.

UNITED STATES, Appellee,

v.

DAVID SAMUEL Martinez-VELEZ, Defendant, Appellant.

UNITED STATES, Appellee,

v.

JORGE MERCED-MORALES, Defendant, Appellant.

UNITED STATES, Appellee,

v.

RAMON A. Rios-Rios, Defendant, Appellant.

UNITED STATES, Appellee,

v.

EDWIN ROSARIO-Rodriguez, Defendant, Appellant.

Nos. 98-1808, 98-1933, 98-1938, 98-2116

United States Court of Appeals, First Circuit

June 27, 2000

        Heard November 4, 1999

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        Rafael F. Castro-Lang, by appointment of the Court, for appellant Rafael Collazo-Aponte.

        Kevin G. Little, by appointment of the Court, for appellant Heriberto Ortiz-Santiago.

        Johnny Rivera-Gonzalez, by appointment of the Court, for appellant Andres Colon-Miranda.

        Jorge L. Arroyo-Alejandro, by appointment of the Court, for appellant Edwin Ortiz-Figueroa.

        Victor P. Miranda-Corrada, by appointment of the Court, for appellant David S. Martinez-Velez.

        Ludwig Ortiz-Belaval for appellant Jorge Merced-Morales.

        Linda Backiel for appellant Ramon A. Rios-Rios.

        Rafael Anglada-Lopez, by appointment of the Court, for appellant Edwin Rosario-Rodriguez.

        Lena Watkins, Deputy Associate Chief, Litigation, Narcotic and Dangerous Drug Section, with whom Catherine Wingfield, and Grace Chung Becker, Trial Attorneys, Narcotic and Dangerous Drug Section, Criminal Division, U.S. Department of Justice, were on brief, for appellee.

        Before: Torruella, Chief Judge, Wallace, [*] Senior Circuit Judge, and O'Toole, [**] District Judge.

        TORRUELLA, Chief Judge.

        This appeal arises from a sixty-six count criminal indictment charging the eight appellants -- Rafael Collazo-Aponte, Heriberto Ortiz-Santiago, Andres Colon-Miranda, Edwin Ortiz-Figueroa, David S. Martinez-Velez, Jorge Merced-Morales, Ramon A. Rios-Rios, and Edwin Rosario-Rodriguez -- with numerous offenses related to a decade-long, multi-drug-dealing conspiracy based in the Virgilio Davila public housing project in Bayamon, Puerto Rico. In addition to the drug conspiracy charges, the indictment also charged that between April 1993 and June 1994 over a dozen of the originally named co-conspirators engaged in a war of revenge, triggered by the February 23, 1993 murder of Richard Munoz-Candelaria. This drug war resulted in the murder of at least seven individuals. On February 16, 1998, a jury returned guilty verdicts as to all appellants on all counts. This appeal followed.

        After carefully examining the record and the law, we affirm in part and reverse and remand in part.

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        PROCEDURAL HISTORY

        On June 26, 1997, a grand jury empaneled in the United States District Court for the District of Puerto Rico returned a third superseding indictment in criminal case number 95-029(JAF). Count 1 charged appellants with conspiracy to possess with intent to distribute cocaine base, cocaine, and heroin. See 21 U.S.C. §§ 841, 846. Count 65 charged appellants with using and carrying a firearm during and in relation to a drug conspiracy. See 18 U.S.C. § 924(c). Count 51 charged appellants Colon-Miranda, Ortiz-Santiago, Ortiz-Figueroa, and Martinez-Velez with conspiring to kill while engaged in a drug conspiracy. See 21 U.S.C. §§ 846, 848(e)(1)(A). Additional counts charged appellants Rosario-Rodriguez (Count 52), Colon-Miranda (Counts 53-59 and 62), Ortiz-Santiago (Count 53), Ortiz-Figueroa (Count 53), and Martinez-Velez (Counts 57 and 58) with intentionally killing or attempting to kill while engaged in a drug conspiracy. See 18 U.S.C. § 2; 21 U.S.C. §§ 846, 848(e)(1)(A). These charges also alleged liability pursuant to Pinkerton v. United States, 328 U.S. 640 (1946). Finally, Counts 60-64 charged Colon-Miranda with attempting to kill and then killing Rafael Cotto-Fuentes in order to prevent him from (1) communicating with law enforcement officers and (2) testifying for the prosecution. See 18 U.S.C. §§ 2, 1512(a)(1)(A), (C).

        On November 5, 1997, the prosecution moved the district court to empanel an anonymous jury. On November 13, 1997, the court conducted a "Jury Orientation" without the parties or counsel being present and excused several prospective jurors. The court then granted the government's request for an anonymous jury over the objection of Colon-Miranda. Prior to trial, the court also denied motions to sever filed by appellants Rios-Rios and Collazo-Aponte.

        Trial commenced on November 17, 1997. At that time, the district court ruled that all rulings applied to all defendants and motions joining co-defendants' motions were unnecessary. The court also denied a motion to reconsider its decision to empanel an anonymous jury.

        On February 16, 1998, the jury returned guilty verdicts as to all appellants on all counts. The court sentenced Ortiz-Santiago, Ortiz-Figueroa, and Martinez-Velez to concurrent terms of life imprisonment on multiple counts and a consecutive ten-year term on Count 65; Colon-Miranda to concurrent terms of life imprisonment on multiple counts, a concurrent twenty-year term on Count 66, and a consecutive ten-year term on Count 65; Rosario-Rodriguez to concurrent terms of life imprisonment on Count 1 and twenty years on Count 52, as well as a consecutive ten-year term on Count 65; Collazo-Aponte, Rios-Rios, and Merced-Morales to 151, 293, and 360 months imprisonment, respectively, on Count 1 and, with respect to Collazo-Aponte and Merced-Morales, a consecutive ten-year term on Count 65.

        FACTUAL BACKGROUND

        We review the facts in a criminal case in the light most favorable to the verdict. See, e.g., United States v. Bartelho, 71 F.3d 436, 438 (1st Cir. 1995).

        I. Overview

        At trial, the prosecution offered evidence of a drug distribution organization led by Israel Santiago-Lugo that began in the Virgilio Davila housing project in Bayamon, Puerto Rico, and later expanded to several drug distribution points in northern Puerto Rico. The government's evidence included the testimony of five cooperating witnesses: brothers Wilfredo and David Martinez- Matta, Billy Ramos-Rodriguez, Jose Ibanez-Maldonado, and Marcos Hidalgo-Melendez. These witnesses testified that in the mid-1980s Santiago-Lugo cultivated a group of employees who processed and packaged cocaine and heroin at apartments, known as "mesas," for delivery to various drug distribution

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points. The evidence indicated that trusted operatives managed the distribution points and lower level employees handled the street-level distribution. On February 28, 1993, the Santiago-Lugo drug organization splintered into rival factions when the Rosario-Rodriguez brothers murdered Richard Munoz-Candelaria. A series of retaliatory murders ensued as Santiago-Lugo and those loyal to him engaged in hunting expeditions ("cacerias") to kill the Rosarios.

        II. Drug Packaging at the Mesas

        At trial, the witnesses for the prosecution testified as to their and the appellants' involvement in the Santiago-Lugo drug mesas. Wilfredo Martinez-Matta stated that in 1986 and 1987 he worked at two drug mesas located in hotels. At that time, he also packaged cocaine at his mother's house. Ramos-Rodriguez and David Martinez-Matta testified that they also packaged drugs at the Martinez-Matta house, and David Martinez-Matta stated that Santiago-Lugo, Colon-Miranda, and brothers Ortiz-Santiago and Ortiz-Figueroa participated.

        Wilfredo Martinez-Matta and Ramos-Rodriguez testified that in 1989 a condominium in Reina del Mar served as a mesa. Hidalgo-Melendez testified that Colon-Miranda, Ortiz-Santiago, and Ortiz-Figueroa packaged drugs there in the early 1990s. Wilfredo Martinez-Matta stated that he packaged cocaine there once in 1989, and further stated that Ortiz-Santiago, a drug user, "tested" drug quality at this location. Ramos-Rodriguez, who rented the Reina del Mar mesa for four to five months, indicated that the drug organization packaged one-eighth-kilogram quantities of cocaine at each session in the Reina del Mar mesa and that he or Santiago-Lugo would transport the drugs to Davila for storage and distribution.

        In the early 1990s, Wilfredo Martinez-Matta worked at two mesas in the Costa del Mar condominium complex. At these locations, he processed cocaine with Ramos-Rodriguez and heroin with Rios-Rios. Wilfredo Martinez-Matta also stated that (1) the organization packaged kilogram quantities of cocaine and one-eighth kilograms of heroin at each session and (2) Rios-Rios once obtained one kilogram of cocaine for Santiago-Lugo from a supplier. Ramos-Rodriguez recalled that the organization used the Costa del Mar mesas from 1990 to 1991, that he processed heroin and cocaine once or twice a week for four or five months there, and that he was paid $150 for each one-eighth kilogram of cocaine packaged. He added that Ortiz-Santiago delivered drugs to the mesa, occasionally with Santiago-Lugo. Ortiz-Santiago also processed drugs and tested their purity.

        Wilfredo Martinez-Matta, David Martinez-Matta, and Ramos-Rodriguez also testified that Rios-Rios rented a mesa...

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