356 F.3d 104 (1st Cir. 2004), 02-1623, United States v. Casas

Docket Nº:02-1623, 02-1624, 02-1785, 02-1674, 02-1794.
Citation:356 F.3d 104
Party Name:UNITED STATES of America, Appellee, v. Ralph CASAS, Defendant, Appellant. United States of America, Appellee, v. Feliciano Nieves, Defendant, Appellant. United States of America, Appellee, v. Winston Cunningham, Defendant, Appellant. United States of America, Appellee, v. Rafael Segui-Rodriguez, Defendant, Appellant.
Case Date:January 20, 2004
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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356 F.3d 104 (1st Cir. 2004)

UNITED STATES of America, Appellee,


Ralph CASAS, Defendant, Appellant.

United States of America, Appellee,


Feliciano Nieves, Defendant, Appellant.

United States of America, Appellee,


Winston Cunningham, Defendant, Appellant.

United States of America, Appellee,


Rafael Segui-Rodriguez, Defendant, Appellant.

Nos. 02-1623, 02-1624, 02-1785, 02-1674, 02-1794.

United States Court of Appeals, First Circuit

January 20, 2004

Heard Nov. 4, 2003.

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Elfrick Méndez-Morales for appellant Casas.

Raymond L. Sanchez-Maceira, for appellant Nieves.

Marcia J. Silvers, for appellant Cunningham.

Joseph S. Berman, for appellant Segui-Rodriguez.

Nelson Perez-Sosa, Assistant United States Attorney, with whom Thomas F. Klumper, Assistant United States Attorney, H.S. Garcia, United States Attorney, and Sonia I. Torres-Pabon, Assistant United States Attorney, Chief, Criminal Division, were on brief for appellee.

Before BOUDIN, Chief Judge, LYNCH, Circuit Judge, and HOWARD, Circuit Judge.

LYNCH, Circuit Judge.

Four defendants, Ralph Casas, Feliciano Nieves, Winston Cunningham, and Raphael Segui-Rodriguez, were convicted by a jury of participating in a drug organization that smuggled massive amounts of cocaine and heroin from Puerto Rico and several foreign countries into Miami and New York from September 1992 to March 1995.

Ralph Casas and Winston Cunningham were convicted of using their positions as baggage handlers for American Airlines to smuggle the drugs past customs and security personnel at the Miami International Airport. Raphael Segui-Rodriguez and Feliciano Nieves were convicted of participating in all facets of the organization's operations in Puerto Rico, the point from which most of the drug shipments were prepared.

In this appeal, the four defendants raise a number of serious concerns about their trial. We vacate the conviction of defendant Cunningham because the government improperly used as a lead witness a government agent who testified that, based on his investigation, the defendants were members of the charged drug conspiracy. The error was not harmless as to Cunningham, but was harmless as to the other defendants.

In the case of defendant Segui-Rodriguez, we also reject the government's suggestion that we adopt a rule that, for speedy trial purposes, the clock does not start until the indictment is unsealed. But we find that the delay of over five years from indictment to trial did not violate Segui-Rodriguez's speedy trial rights where the government did not know his location during that period and no prejudice has been shown. We also note, but do not resolve, an issue about the interplay between the prejudice prong of the Brady disclosure requirements and the government's obligations under the Jencks Act, 18 U.S.C. § 3500, to disclose evidence only at certain times. Finally, we again affirm the imposition of a sentence by a judge other than the judge who heard the trial.

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The facts are recounted as a reasonable jury could have found them, in the light most favorable to the verdict.

A sophisticated drug organization, based principally in Puerto Rico, transported large quantities of cocaine and heroin into the United States between September 1992 and March 1995. The leader of the organization, Israel Perez-Delgado, coordinated the work of approximately sixty subordinates. Working together, the members of the organization transported drugs from Puerto Rico, the Dominican Republic, and Panama into Miami International Airport for ultimate distribution in New York. In total, the organization smuggled approximately 9,000 kilograms of cocaine and approximately 1,400 grams of heroin into the continental United States.

The organization used various methods to smuggle the drugs past customs and security personnel. In one scheme, women "mules" traveled on commercial flights from the Dominican Republic to Miami with professionally altered garment bags containing cocaine. On later flights the mules carried the cocaine directly on their bodies. The organization also mailed cocaine to Miami using overnight mail carriers. The drugs were stored in toolboxes, and packaged with Ben Gay and Vick's Vaporub to cloak their smell. Another method used by the organization involved hiding heroin in the carved-out soles of sneakers. And a fourth scheme used American Airlines flights to transport suitcases filled with cocaine from Puerto Rico and the Dominican Republic to Miami.

Defendant Ralph Casas was in charge of the organization's operations in Miami, the entry point for most of the drugs into the continental United States. Casas was a baggage handler for American Airlines at Miami International Airport and recruited other employees to help divert drug shipments past normal security and customs checkpoints. For instance, Bryan Francis, a cooperating government witness and former American Airlines employee, testified that he and Casas met at the Miami airport, where Casas gave him shipments of cocaine that had been mailed to Miami from Puerto Rico and had not yet been screened by security personnel. Francis then bypassed security by using the employee's entrance to the bag room area, traveled up to the terminal where the passengers that had passed through security were waiting to board flights, and regrouped with Casas. At that point, Casas directed Francis to a third individual, who took possession of the cocaine and boarded a flight headed for New York. Casas paid Francis $2500 per importation; they used this method three times.

Casas also recruited "Rasta," another employee of American Airlines, to help smuggle drugs into the United States. At trial, Francis and two other government witnesses, Carlos Perez-Delgado and Thomas Martinez, identified defendant Cunningham as Rasta. Cunningham testified, denied any involvement, but admitted that he was called "Rasta" by some American Airlines employees.

Rasta provided assistance when one of the organization's mules, most frequently Elizabeth Morales, a cooperating witness, traveled on a flight from the Dominican Republic to Mexico that stopped off in Miami (Morales did not identify Cunningham as Rasta). In the Dominican Republic, the mule would check a suitcase containing cocaine. Because its ultimate destination was international, the suitcase did not go through customs when it arrived in Miami, but was placed in a secluded area known as the ITI room. Rasta, who had access to this area, then placed the suitcase in an area where Francis picked it up, moved it to a storage

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room for domestic bags that had already gone through security, and put a new tag on it indicating that its destination was New York. This occurred about four times, until Casas decided to rely exclusively on another member of the organization (not on trial in this case) to perform Rasta's function.

Casas also stored drugs in his house in Miami, assisted in packaging cocaine, and facilitated the delivery of drugs to New York or directly to Israel Perez-Delgado when he was in Miami. He assisted in purchasing weapons and bullet-proof vests to be used in the course of searching for several people suspected of stealing a shipment of drugs from the organization. Thomas Martinez testified that, at a meeting held in New York after Israel Perez-Delgado was arrested, Casas attempted to take control of the organization. Martinez also testified that Cunningham attended that meeting.

Defendant Rafael Segui-Rodriguez worked directly for Israel Perez-Delgado in Puerto Rico and assisted him in all areas of the operation. He served as a bodyguard for Israel Perez-Delgado and Ray Cabassa, another high-ranking member of the organization. Additionally, he provided armed security for the drugs while they were in storage awaiting shipping and distribution. Segui-Rodriguez also transported firearms and surveillance equipment from Miami to Puerto Rico and New York for the organization.

Several witnesses specifically identified Segui-Rodriguez as participating in drug transactions on behalf of the organization. Thomas Martinez, for instance, testified that Segui-Rodriguez helped deliver cocaine to Israel Perez-Delgado's New York City apartment by hiding it inside an audio speaker in the trunk of the car he was driving. Three guns were also in that car.

DEA Agent Stoothoff also testified that he saw Segui-Rodriguez, along with several others, drop off four suitcases of cocaine at the Puerto Rico airport on March 21, 1994. Agent Stoothoff testified that Segui-Rodriguez was sitting in the driver seat of a black Pontiac TransAm in front of the airport and that an Isuzu Trooper was parked directly behind the TransAm. As Agent Stoothoff and a fellow officer walked toward the two vehicles, they saw several people inside the cars and observed Israel Perez-Delgado unloading suitcases from the Isuzu Trooper. Once the officers got even closer, the people suddenly fled. Three were caught: Jose Velez-Roman, Hector Martinez-Medina and Jose Charluisant-Pagan were arrested, but Rafael Segui-Rodriguez escaped after he sped off in the TransAm. Another DEA agent, Miguel Escalera, also recounted this incident at the airport. The suitcases were each filled with about twenty kilograms of cocaine and had been labeled with agricultural stickers. The Isuzu also contained an American Airlines boarding pass with the name "Rafael Rodriguez" on it.

After being confronted with this evidence, Martinez-Medina offered to cooperate and led officials to a house in Villa Fontana that he claimed contained...

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