U.S. v. Andujar

• Decision Date: 07 November 1994
• Docket Number: D,Nos. 92-2376,IRIZARRY-SANABRI,s. 92-2376
• Citation: 49 F.3d 16
• Parties: UNITED STATES, Appellee, v. Jose Salvador ANDUJAR, Defendant-Appellant. UNITED STATES, Appellee, v. Amadorefendant-Appellant. UNITED STATES, Appellee, v. Pedro INFANTE, Defendant-Appellant. to 92-2378. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 16

49 F.3d 16

UNITED STATES, Appellee, v. Jose Salvador ANDUJAR, Defendant-Appellant.

UNITED STATES, Appellee, v. Amador IRIZARRY-SANABRIA, Defendant-Appellant.

UNITED STATES, Appellee, v. Pedro INFANTE, Defendant-Appellant.

Nos. 92-2376 to 92-2378.

United States Court of Appeals, First Circuit.

Heard Nov. 7, 1994.

Decided March 6, 1995.

Ramon Garcia, by Appointment of the Court, for appellant Jose Salvador Andujar.

Gabriel Hernandez-Rivera, by Appointment of the Court, on brief, for appellant Amador Irizarry-Sanabria.

Thomas R. Lincoln, by Appointment of the Court, with whom Law Offices of Thomas R. Lincoln was on brief, for appellant Pedro Infante.

Jose A. Quiles-Espinosa, Sr. Litigation Counsel, with whom Guillermo Gil, U.S. Atty., was on brief, for appellee.

Before TORRUELLA, Chief Judge, CAMPBELL, Senior Circuit Judge, and BOYLE, ^* Senior District Judge.

TORRUELLA, Chief Judge.

On July 17, 1992, defendants Amador Irizarry-Sanabria, Jose Salvador Andujar, and Pedro Infante-Ruiz were convicted by a jury in federal district court for conspiracy to import approximately 3000 pounds of marijuana and for the possession of a firearm in relation to the commission of said narcotics offense, in violation of 21 U.S.C. Secs. 952(a) and 963, and 18 U.S.C. Sec. 924(c)(1), respectively. All defendants now appeal. Jose Salvador Andujar alleges that the evidence was insufficient to support the jury's verdict. Amador Irizarry-Sanabria (1) challenges the sufficiency of the evidence; (2) alleges that the district court erroneously instructed the jury regarding the meaning of reasonable doubt; and (3) maintains that the district court abused its discretion in precluding the defense from presenting certain impeachment testimony. Pedro Infante-Ruiz alleges (1) that the district court misapplied the United States Sentencing Guidelines (the "Guidelines") in determining his sentence; and (2) that the jury instructions impermissibly reduced the government's burden of proof at trial. For the following reasons, we vacate the conspiracy and Sec. 924(c)(1) convictions of Jose Salvador Andujar. All other convictions are affirmed.

I. BACKGROUND

We recite the facts in the light most favorable to the government. United States v. Echeverri, 982 F.2d 675, 676 (1st Cir.1993). The charges contained in the indictment arose from an unsuccessful operation to import narcotics into Puerto Rico from Colombia. The pertinent facts occurred between September 24 and September 30, 1991, beginning with the co-conspirators' efforts to recruit William Linder ("Linder") to assist them in a scheme to import marijuana. These facts came to light because Linder, unbeknownst to the co-conspirators, was a confidential informant working for the government.

Linder had resided in the town of Lajas, Puerto Rico, Papayo Ward, for nearly thirty years. Linder's occupation at the relevant time was selling oysters from a kiosk adjacent to Salvi's Tire Center (the "Tire Center"). The Tire Center, as well as the adjacent kiosk, was owned by Appellant Jose Salvador Andujar ("Andujar"), whom Linder had known for approximately twenty-eight years. Linder had become acquainted with Appellant Pedro Infante-Ruiz ("Infante") because Infante was a frequent customer at his oyster stand. Linder knew Appellant Amador Irizarry-Sanabria ("Irizarry") because he owned a fish market in the nearby town of La Parguera.

On September 24, 1991, while Linder was at the Tire Center, he noticed Infante drive up. After Infante and Andujar had a brief conversation, which Linder could not hear, Andujar told Linder that Infante wanted to see him inside the Tire Center. Infante and Linder met alone in Andujar's office, at which time Infante asked Linder if Linder would use his boat to retrieve a load of drugs from an ocean rendezvous. Linder accepted the proposition, and they agreed to meet later the same day at the Tire Center.

Linder then left the Tire Center and informed Puerto Rico Police Agent Amilcar Vargas ("Agent Vargas") of Infante's illegal offer. Afterwards, he returned to the Tire Center to wait for Infante, who eventually arrived with Irizarry. Infante then drove them to a house located in the direction of Barrio Joyuda (the "Barrio Joyuda House"), where Federico Francisco de la Paz (a.k.a. "Freddie") was waiting. Also present were two Colombian nationals, Alberto Enrique Pineda-Wissman ("Pineda") and an unidentified individual. Andujar was not present at this meeting.

Pineda proceeded to sketch out the plans for the off-shore drug pick-up. The plan called for Linder to take his boat to a location near Mona Island, where he would retrieve the drugs from a speed boat called "La Colombiana." Pineda provided Linder with a crude map of Mona Island, the coordinates for the intended rendezvous point, and a list of the radio frequencies on which the co-conspirators planned to communicate.

Because Linder was unsatisfied with the map of Mona Island, Infante instructed Irizarry to get him a nautical chart. Irizarry and Linder then proceeded to Lucas Marine Shop in Cabo Rojo, where they purchased a nautical ruler, and La Pescaderia Rosa, where they found an appropriate chart. Irizarry paid for both items.

On their way back to the Barrio Joyuda House, Irizarry informed Linder that he was to pick up a 3,000 pound load of marijuana and offered him $100,000 for his efforts. At the Barrio Joyuda House, Linder was given $800 to purchase supplies for the trip. Linder then left the house and bought the necessary supplies. Before he returned home, he briefed Agent Vargas on the day's events.

The following day, September 25, 1991, Linder went to the Tire Center, where Andujar instructed him to return the following day to meet Infante. The next day, as instructed, Linder returned to the Tire Center. Infante was late for the scheduled meeting, so Andujar, at Linder's request, called Infante's cellular phone to determine his whereabouts. After the call, Andujar assured Linder that Infante would arrive soon. Shortly thereafter, accompanied by Irizarry, Infante drove through the Tire Center's back entrance. Infante ordered Linder to get in the vehicle quickly so that he would not be seen. Before proceeding to the Barrio Joyuda House, Infante instructed Andujar to move Linder's car from the front to the back of the Tire Center.

When Linder, Infante, and Irizarry arrived at the Barrio Joyuda House, the same group present at the September 24 meeting was already assembled. They discussed revisions in the plans, and Linder told the group that he would require a gun if he was to make the journey alone. After a brief consultation with Infante and Freddie, Irizarry left the house and returned shortly with a .357 Ruger revolver, which he gave to Linder. After the meeting dissolved, Linder met with the local police, who copied the weapon's serial number.

Before his departure on the evening of September 26, Linder met with Lt. Gonzalez, a local police officer, and Drug Enforcement Administration agent Jose Morales ("Agent Morales"). Linder informed them of the specifics of his trip, and the three agreed to meet the following day at a spot near Mona Island. Linder surrendered the revolver to the officers at this time.

Linder arrived at Mona Island on the morning of September 27. He was met later that day by Lt. Gonzalez, Agent Morales, and several other law enforcement personnel. Linder left that night for the rendezvous, which was scheduled to take place the following afternoon.

Although Linder arrived at the rendezvous point at the appointed hour, the Colombian boat was nowhere to be seen. The boat never appeared, and attempts to communicate with it by radio were unavailing. It was close to midnight when Linder finally decided to head back to Mona Island. The seas were rough, and he was having engine and radio problems. Eventually, his engine quit altogether. Linder's boat remained adrift until a large tug boat stopped to help and called the Coast Guard for assistance. The Coast Guard arrived and brought Linder on board. Although they tried to tow his boat back to Mona Island, it sank along the way.

When Linder eventually arrived back at La Parguera, he recounted the events to Irizarry, who explained that the Colombian boat had suffered engine problems and had been unable to make the trip. During the following days, Linder and the co-conspirators met at the Tire Center, where they assured him that they would get him another boat. Infante cautioned Linder not to tell anyone about the failed mission and specifically told him not to communicate over the telephone. Instead, Infante instructed Linder, "Anytime you want to say something to me, tell [Andujar]. [Andujar] will call me and I get with you [sic]."

Several days later, while Linder was at the oyster kiosk, Andujar told him, "My friend came to pick up the gun. He was looking for the gun. I told him he better go to Mona Island and look in the mouth of a shark, and he might find it."

Subsequently, the appellants were indicted and convicted in federal court on charges of conspiracy to import marijuana and possession of a firearm in relation to the commission of the offense.

II. SUFFICIENCY OF THE EVIDENCE

Both Andujar and Irizarry allege that the proof at trial was insufficient to support their convictions.

A. Standard of Review

The standard of review governing a challenge to the sufficiency of the evidence is well established. An appellate court must determine whether a rational jury could find guilt beyond a reasonable doubt. Echeverri, 982 F.2d at 677; United States v. Garcia, 983 F.2d 1160, 1163-64 (1st Cir.1993). In making this determination, the reviewing court must examine the evidence, together with all inferences that may be reasonably drawn from it, in the light most favorable to the prosecution. Echeverri, 982 F.2d at 677. Furthermore, the reviewing court does not evaluate witness credibility, but resolves all credibility issues...