424 F.3d 65 (1st Cir. 2005), 03-2333, United States v. Sanchez-Berrios

Docket Nº:03-2333, 03-2334, 03-2335.
Citation:424 F.3d 65
Party Name:UNITED STATES of America, Appellee, v. Edgardo S
Case Date:September 20, 2005
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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424 F.3d 65 (1st Cir. 2005)

UNITED STATES of America, Appellee,


Edgardo SÁNCHEZ-BERRÍOS, Defendant, Appellant.

United States of America, Appellee,


José Cotto-Latorre, Defendant, Appellant. 

United States of America, Appellee,


David Cruz-Pagán, Defendant, Appellant. 

Nos. 03-2333, 03-2334, 03-2335.

United States Court of Appeals, First Circuit.

September 20, 2005

        Submitted Aug. 3, 2005.


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        Juan M. Masini-Soler on brief for appellant Sanchez-Berrios.

        Lenore Glaser on brief for appellant Cotto-Latorre.

        Alan D. Campbell on brief for appellant Cruz-Pagan.

        H.S. Garcia, United States Attorney, Nelson Perez-Sosa and Lisa Snell-Rivera, Assistant United States Attorneys, on brief for the United States.

        Before Boudin, Chief Judge, Selya, Circuit Judge, and Siler, [*] Senior Circuit Judge.

        SELYA, Circuit Judge.

        These appeals evolve from a reverse sting operation designed to ferret out police corruption. The defendants, all law enforcement officers who greedily took the bait, were found guilty by a jury on a myriad of charges and thereafter sentenced to lengthy prison terms. In this venue, they variously challenge the district court's stewardship of the trial, their convictions, and their sentences. Concluding, as we do, that their asseverational array lacks merit, we affirm the judgments below.


        We recount the facts in the light most hospitable to the verdicts, consistent with record support. United States v. Vega Molina, 407 F.3d 511, 516 (1st Cir. 2005).

        The central figure in the reverse sting operation that led to the instant convictions is Arturo Ortiz-Colon, himself a corrupt police officer who, after his apprehension in the spring of 2000, began to cooperate with the Federal Bureau of Investigation (FBI) in exchange for leniency. That arrangement resulted in the launching of Operation Honor Perdido (Lost Honor).

        In the course of that operation, Ortiz-Colon, posing as a corrupt federal agent, would present opportunities to local police officers to earn money for assisting in the transportation and protection of illegal drugs. The FBI furnished Ortiz-Colon with accouterments suitable to his assumed

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role, including a luxury apartment and a flashy car (both of which were outfitted with recording equipment). His telephone was similarly appointed and he himself wore a body wire when the occasion demanded. Ortiz-Colon found no shortage of local police officers who hastened to trade honor for hard cash. See, e.g., United States v. Villafane-Jimenez, 410 F.3d 74 (1st Cir. 2005) (per curiam) (recounting details of an unrelated Honor Perdido prosecution and conviction); United States v. Vazquez Guadalupe, 407 F.3d 492 (1st Cir. 2005) (same); United States v. Flecha-Maldonado, 373 F.3d 170 (1st Cir. 2004) (same).

        Diana Diaz, herself a corrupt police officer who had bought into Ortiz-Colon's charade, functioned as his "recruiter." At various times, she approached defendant-appellant Edgardo Sanchez-Berrios (Sanchez), defendant-appellant Jose Cotto-Latorre (Cotto), and defendant-appellant David Cruz-Pagan (Cruz). Each of them was enlisted to participate in a different drug transport. The details follow.

        After Diaz initially contacted Sanchez, Ortiz-Colon hired him to act as an escort for a drug delivery scheduled to take place in November of 2000. Sanchez, driving Diaz's car, accompanied the transport vehicle to a shopping plaza where the drugs were transferred to another vehicle. Ortiz-Colon paid Sanchez $5,000 for his services.

        When Diaz approached Cotto, he too indicated a willingness to participate in drug deals. She took him and other police officers whom she had recruited to Ortiz-Colon's apartment. The group discussed a transport projected to take place in April of 2001. At that meeting, Ortiz-Colon explained that he was working for a Colombian drug dealer (El Viejo) and that the officers would be expected to escort and unload an incoming shipment of cocaine while pretending that they were raiding the boat on which it arrived. The "raiding party" would then deliver the cocaine to El Viejo and be paid for their services. Ortiz-Colon offered the assembled officers an opportunity to opt out; Cotto not only chose to stay, but also volunteered to recruit other police officers to swell the coconspirators' ranks.

        On the day of the transport, Cotto, wearing his uniform shirt and carrying his official firearm, rode with Ortiz-Colon to a marina. He helped to off-load the cocaine, stow it in Ortiz-Colon's car, and ferry it to Ortiz-Colon's apartment. Ortiz-Colon paid Cotto $5,000 for services rendered.

        Diaz also recruited Cruz and arranged an audience for him with Ortiz-Colon. Cruz agreed to participate in a drug transport that occurred in May of 2001. During that incident, Cruz carried his firearm and helped to move cocaine from one vehicle to another. Ortiz-Colon later paid him $5,000 for his help.

        The three appellants, along with Diaz and twelve other individuals, were eventually indicted by a federal grand jury sitting in the District of Puerto Rico. Pertinently, count 1 of the second superseding indictment charged the sixteen named defendants, including all three appellants, with conspiracy to distribute more than five kilograms of cocaine. See 21 U.S.C. §§ 841, 846. Count 2 charged Sanchez with attempting to distribute more than five kilograms of cocaine while aiding and abetting others. See 18 U.S.C. § 2; 21 U.S.C. § 841. Counts 5 and 6 levied the same charge against Cotto and Cruz, respectively. Count 8 charged each of the three appellants, among others, with carrying a firearm during and in furtherance of a drug-trafficking offense. See 18 U.S.C. § 924©).

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        After a twelve-day trial, the jury convicted Sanchez on counts 1 and 2, Cotto on counts 1, 5, and 8, and Cruz on counts 1, 6, and 8. The district court sentenced Sanchez to 151 months of imprisonment and a five-year supervised release term; Cotto to 188 months of imprisonment on the drug-trafficking charges, a consecutive five-year incarcerative term on the weapons count, and eight years of supervised release; and Cruz to 151 months of imprisonment on the drug-trafficking charges, a consecutive five-year incarcerative term on the weapons count, and eight years of supervised release. These appeals ensued.

        II. ANALYSIS

        The appellants advance a gallimaufry of challenges to their convictions and sentences. We discuss this panoply of issues along a quasi-chronological continuum that stretches from trial to sentencing.

        A. Prosecutorial Misconduct.

        Cotto argues that improper prosecutorial comments entitle him to a new trial. His challenge encompasses a variety of word choices made throughout the proceedings. He castigates (i) the prosecutor's reference, in the opening statement, to "Honor Perdido"; (ii) the prosecutor's eliciting of testimony from an FBI agent, Jeffrey Paleaz, that the FBI used sham cocaine in the reverse sting operation because it "did not trust" the targeted police officers with real cocaine; (iii) the prosecutor's repeated invocation of the term "corrupt officers"; and (iv) the prosecutor's allusion, in closing argument, to the defense attorneys' explanation of what had occurred as a "self serving absurdity."

        Because Cotto interposed no contemporaneous objections to any of these word choices, we review his claim of prosecutorial misconduct under the plain error rubric. "Review for plain error entails four showings: (1) that an error occurred (2) which was clear or obvious and which not only (3) affected the defendant's substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings." United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001). If an assignment of error fails to pass through any of these four screens, it is not a basis for reversal. See id. Consequently, a party who neglects to call a looming error to the trial court's attention acts at his peril; under plain error review, we have leeway to correct only the most egregious of unpreserved errors. See United States v. Taylor, 54 F.3d 967, 972 (1st Cir. 1995) (explaining that "[t]he plain error doctrine concentrates on 'blockbusters'" (quoting United States v. Griffin, 818 F.2d 97, 100 (1st Cir. 1987))) .

        None of the statements singled out by Cotto was improper. "Honor Perdido" was the appellation assigned to the sting operation and, thus, was a background fact of the case. The agent's testimony, which explained why no actual drugs were in evidence, falls into the same classification. The prosecutor's description of the defense as a "self serving absurdity," while not flattering, was fair argument. See, e.g., United States v. Bennett, 75 F.3d 40, 46-47 (1st Cir. 1996) (holding that prosecutor's comment that the defense argument was a "'diversion' that does not 'pass the laugh test'" did not "cross [] the line"); United States v. Sblendorio, 830 F.2d 1382, 1395 (7th Cir. 1987) ("Counsel represent many people with lame defenses; the prosecutor [is] entitled to say that the defenses [are] lame . . . .").

        The references to "corrupt officers" present a marginally closer call. Mischaracterization or overuse of a potentially inflammatory phrase may in some

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exaggerated circumstances...

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