U.S. v. Mercado Irizarry, 02-1072.

Decision Date11 April 2005
Docket NumberNo. 02-1108.,No. 02-1269.,No. 02-1072.,No. 02-1105.,No. 02-1107.,02-1072.,02-1105.,02-1107.,02-1108.,02-1269.
Citation404 F.3d 497
PartiesUNITED STATES of America, Appellee, v. Felix MERCADO IRIZARRY; Manuel Vazquez-Mendez; Eliezer Morera-Vigo; Hernan Vazquez-Mendez; German Rodríguez Rodríguez, Defendants, Appellants.
CourtU.S. Court of Appeals — First Circuit

Ignacio Fernández de Lahongrais for appellant Felix Mercado Irizarry.

David W. Roman, with whom Brown & Ubarri was on brief, for appellant Manuel Vazquez-Mendez.

Ramon M. Gonzalez for appellant Eliezer Morera-Vigo.

Michael J. Cruz for appellant Hernan Vazquez-Mendez.

Jean Philip Gauthier for appellant German Rodríguez Rodríguez.

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

Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and LYNCH, Circuit Judge.

LYNCH, Circuit Judge.

Nineteen individuals, including appellants Felix Mercado Irizarry, Hernan Vazquez-Mendez, Eliezer Morera-Vigo, Manuel Vazquez-Mendez, and German Rodríguez Rodríguez, were indicted on one count of conspiracy to distribute in excess of one kilogram of heroin, five kilograms of cocaine, and fifty grams of cocaine base, in violation of 21 U.S.C. § 846. Defendants were charged with distributing drugs through several drug points in the Tibes Public Housing Project in Ponce, Puerto Rico, from 1992 until the return of the indictment in 2000.

All defendants save these five appellants pled guilty to the charge. After a seventeen-day jury trial, the five appellants were found guilty. The court sentenced each to life imprisonment. Each appeals from both the verdict of guilt and the life sentence, save Hernan Vazquez-Mendez, who appeals only his sentence.

I.

Challenges to Conviction

Mercado Irizarry

Mercado first argues that he was deprived of a fair trial based on the cumulative effect of various alleged evidentiary errors: admission of three statements about Mercado's involvement in murders and of other evidence of two murders committed in furtherance of the conspiracy. He also argues for the first time here that the government committed a Brady violation. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

The first two challenged statements were made by Edwin Melendez-Negron, a co-conspirator who pled guilty to the conspiracy and became a cooperating witness for the government. Melendez-Negron testified that Mercado told him that Mercado was the driver of the car during the murder of a man named Hueso. On cross examination, when Melendez-Negron was confronted with his previously made contradictory statements, Melendez-Negron admitted that Mercado never told him anything about Hueso's murder. But he testified that Mercado was present when a man named Melito and Melendez-Negron discussed Hueso's murder. Mercado argues that, because Melendez-Negron retracted his earlier statement, the judge should have stricken Melendez-Negron's first statement from the record and instructed the jury not to consider it.

Melendez-Negron then testified that the murderer of Hueso, a man named Melito, told Melendez-Negron that Mercado helped him kill Hueso. This statement was admitted under Fed.R.Evid. 801(d)(2)(E) as a statement made by a co-conspirator in furtherance of the conspiracy. Mercado argues that the statement was wrongly admitted under the co-conspirator exception because the evidence was that the murder was a result of a personal vendetta, and not in furtherance of the drug conspiracy.

The final statement was by a police agent, Edwin Rosado Vega, who testified about prior consistent statements made by Melendez-Negron regarding Hueso's murder. This was permitted by the district court on the basis that it was duplicative of Melendez-Negron's sworn statement already in evidence. That sworn statement was introduced into evidence by the defense when cross examining Melendez-Negron, in an attempt to impeach his earlier testimony. Although the defense introduced the sworn statement of Melendez-Negron, Mercado now argues that Melendez-Negron's sworn statement was made after his motive to fabricate a story regarding Hueso's murder arose, because the statement was made after he agreed to cooperate with the government and testify against Mercado. As a result, he argues, it was error to admit Rosado's statement.

Mercado further argues that the district court erred in allowing any evidence of the murder of Hueso, and evidence of another murder allegedly committed by Mercado of a man named Wally, because of a lack of evidence that these murders were committed in furtherance of the conspiracy. He argues that the only evidence that the murder of Wally was related to the conspiracy is the testimony of Julio Valentin Medina, who testified that he heard that Mercado killed Wally because of a "debt" and because he was a "stool pigeon." Mercado argues that this evidence is insufficient to show that Wally's murder was in furtherance of the conspiracy.

Finally, Mercado argues that the government committed a Brady violation by presenting testimony of the murders of Edwin and Michel Vázquez as overt acts in furtherance of the conspiracy, despite the fact that the government had in its possession a sworn statement from a different cooperating witness that these murders were unrelated to the conspiracy, which it did not disclose to the defense. Mercado does not argue that the Brady violation itself warrants a new trial, but rather he argues that the disclosure of the statement would have allowed the court to perform a more informed balancing test under Fed.R.Evid. 403, and that balancing may have led to this evidence being disallowed as unfairly prejudicial. Further, he argues that the failure to disclose the statement impeded his cross examination of the government's testifying witness. The government denies there was any Brady violation.

We review the district court's evidentiary rulings as to preserved claims for abuse of discretion. United States v. Balsam, 203 F.3d 72, 84 (1st Cir.2000).

The district court did not abuse its discretion in admitting the statements of Melendez-Negron or Officer Rosado. First, as to the testimony of Melendez-Negron, Mercado has impermissibly switched the basis for his argument twixt trial and appeal. His trial counsel did not move to have Melendez-Negron's earlier statement stricken on the ground, argued now, that the witness had disavowed his earlier testimony. Rather, he asked the judge to strike any testimony relating to the murder of Hueso on the ground that there was inadequate evidence that the murder was in furtherance of the conspiracy. The "in furtherance" evidence was sufficient, for reasons described later. Considering his newly advanced argument on appeal, there was no plain error, and no error at all. It was up to the jury to evaluate the statements, including the contradictions.

As to the second statement, that Melito told Melendez-Negron that Mercado helped him kill Hueso, there was adequate evidence that the murder of Hueso was in furtherance of the conspiracy. This statement was admissible under the co-conspirator exception. Fed.R.Evid. 801(d)(2)(E). Mercado attempts to argue that Melito wanted to kill Hueso because Hueso stole drugs from him at a time before Melito joined the Tibes conspiracy, and therefore the murder could not have been found to be in furtherance of the Tibes conspiracy. This is not so. When Melito and Mercado murdered Hueso, they both worked for Melendez-Negron at Tibes, Melendez-Negron supplied them with the weapons to kill Hueso, and he instructed them to do so away from the Tibes Public Housing Project so as not to draw attention to the drug points. The government introduced evidence that the Tibes conspiracy had a pattern of killing those who had wronged members of the conspiracy in order to protect the conspiracy; there is adequate evidence that the murder of Hueso was a part of this pattern.

As to Officer Rosado's testimony concerning what Melendez-Negron had told him about Hueso's murder, the district court correctly ruled that this was admissible under Rule 801(d)(1) because Melendez-Negron's consistent sworn statement about the murder had already been introduced into evidence by the defense in an attempt to impeach his direct testimony.

It is also clear that evidence of the murders of Hueso and Wally were not erroneously admitted. There was adequate evidence that each of these murders was committed in furtherance of the conspiracy. As to the evidence about Wally's murder, the government introduced testimony that Mercado murdered Wally because he owed a debt and because he was a "stool pigeon."

As to the unpreserved argument of an alleged Brady violation, we note that the statement in question was referred to in multiple reported cases before the start of Mercado's trial, and could easily have been discovered by Mercado's counsel, thus it is doubtful there is any Brady claim. In any event, given the corroborating testimony that the murders in question were committed in furtherance of the conspiracy, and the amount of evidence implicating Mercado in the conspiracy, he cannot carry his burden of showing that the alleged violation affected the result of the proceeding. See United States v. Conley, 249 F.3d 38, 45 (1st Cir.2001).

Morera-Vigo

Morera-Vigo makes the same arguments that Mercado does about admission of evidence of the murders of Hueso and Wally. We reject them for the same reasons.

In addition, Morera-Vigo argues that the court erred in allowing evidence of murders and drug dealing committed at other drug points in Ponce. He argues that there was a different conspiracy run by Angela Ayala, whose only connections to...

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