534 F.3d 1 (1st Cir. 2008), 05-1461, United States v. Ofray-Campos

Docket Nº:05-1461, 05-1462, 05-2315, 05-2627, 06-1005.
Citation:534 F.3d 1
Party Name:UNITED STATES of America, Appellee, v. Heriberto OFRAY-CAMPOS, Pedro Jos
Case Date:July 07, 2008
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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534 F.3d 1 (1st Cir. 2008)

UNITED STATES of America, Appellee,

v.

Heriberto OFRAY-CAMPOS, Pedro José Díaz-Clavell, Dennys Cruz-Pereira, Mizaury López-Soto, Modesto Zaragoza-Lasa, Defendants, Appellants.

Nos. 05-1461, 05-1462, 05-2315, 05-2627, 06-1005.

United States Court of Appeals, First Circuit.

July 7, 2008

Submitted March 7, 2008.

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Elfrick Méndez Morales, on brief for Appellant Ofray-Campos.

José R. Olmo-Rodríguez, for Appellant Díaz-Clavell.

Elaine Pourinski, on brief for Appellant Cruz-Pereira.

Raymond J. Rigat, for Appellant López-Soto.

J. Michael McGuiness, for Appellant Zaragoza-Lasa.

Julia M. Meconiates, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, was on brief for appellee.

Before TORRUELLA, Circuit Judge, LYNCH, Circuit Judge, and KEENAN, [*] Senior District Judge.

KEENAN, District Judge.

These five consolidated appeals arise from the convictions of the defendants, after a jury trial, for their participation in a multi-drug conspiracy. On October 4, 2002, a federal grand jury, sitting in the District of Puerto Rico, returned a two-count Indictment, charging forty-three defendants with conspiracy to distribute five kilograms or more of cocaine, fifty grams or more of crack, and one kilogram or more of heroin, in violation of 21 U.S.C. §§ 841 and 846.1 The charges stemmed from the defendants' alleged participation in Las Avispas, a heroin, powder cocaine,

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crack, and marijuana ring that operated drug distribution centers, or drug “points," throughout neighborhoods in the Guayama and Salinas regions of Puerto Rico, from April 1993 to September 2002. Of the forty-three defendants who were indicted, thirty-seven pleaded guilty. The present Defendants-Appellants, Mizaury López-Soto (“López-Soto" ), Heriberto Ofray-Campos (“Ofray" ), Pedro José Díaz-Clavell (“Díaz-Clavell" ), Dennys Cruz-Pereira (“Cruz-Pereira" ), and Modesto Zaragoza-Lasa (“Zaragoza-Lasa" ) (collectively, the “Appellants" ), opted to go to trial, along with an additional defendant, Carlos Escobar-Figueroa, whose appeal proceeded separately. Trial began on August 5, 2003 and concluded on September 29, 2003. The jury found the Appellants guilty and indicated by a special verdict form that the charged conspiracy involved the threshold amounts of the narcotics described in the Indictment.

For the reasons that follow, we vacate the convictions of Díaz-Clavell and Zaragoza-Lasa and remand for new trials. We affirm the convictions of Cruz-Pereira and López-Soto but vacate their sentences and remand for re-sentencing. We affirm the conviction and sentence of Ofray.

BACKGROUND

In setting forth the background of this case, we present the facts in a light that is most favorable to the Government's case and thus supportive of the jury's verdict. We provide additional facts where they are relevant to the legal analysis of specific issues. See United States v. Rodriguez-Marrero, 390 F.3d 1, 6 (1st Cir.2004).

The Government's evidence at trial consisted, among other things, of the testimony of law enforcement agents and cooperating witnesses; audio recordings of drug transactions; and physical evidence, including guns and narcotics, recovered during the course of the investigation. The evidence established that, from 1993 to 2002, Las Avispas, a gang with approximately forty members under the leadership of José Dávila-López (a/k/a José Cabezón), owned and operated drug points in Guayama and Salinas from which members of the organization sold large quantities of cocaine, crack, heroin, and marijuana. The drug points operated by Las Avispas included the points at Las Vias and La Plumita, in the Borinquen ward of Guayama. For several years during the time period at issue, Las Avispas was engaged in a violent war over territory in the Borinquen ward with a smaller gang, Los Jibaritos, that operated a drug point at Las Ruinas, in close proximity to the Las Vias and La Plumita drug points. The Las Vias point carried out a thriving narcotics trade, operating around the clock with nearly constant demand from street users. Francisco Rivera Cardona, a former Avispas street dealer who sold crack and cocaine at Las Vias from 1996 to 1999, testified that he typically sold between 400 and 500 capsules of crack per eight-hour shift, as well as approximately twenty-five $10 bags of cocaine per shift. Members of Las Avispas and Los Jibaritos regularly carried weapons and frequently engaged in shoot-outs with each other and with members of other rival gangs in the area.

Las Avispas, Los Jibaritos, and other neighboring drug rings operated under similar principles. Drug point owners, such as José Cabezón, were rarely seen at the actual drug points and had limited interaction with the gangs' lower level members. In addition to drug point owners and managers, workers in the drug rings included suppliers, who sold large quantities of narcotics on a regular basis to several different gangs; sellers, who sold the packaged drugs on the street to end users; runners, who kept the points

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stocked with drugs; and enforcers, who often carried firearms and used violence to protect the gangs' members, drugs, and drug proceeds from the violent encroachment of rivals. Often, members of the drug gangs occupied overlapping roles.

The Government's witnesses also described how different drugs were packaged. Cocaine and marijuana were sold in plastic bags, in $5 and $10 quantities. Crack was sold in small plastic vials, at $3 or $3.50 per vial. Heroin was packaged in aluminum foil of different colors. The heroin sold by Las Avispas at Las Vias generally was packaged in violet-colored foil. The cooperating witnesses also described how the cash proceeds were safeguarded and how the cash was spent, often on luxury items, to disguise its illicit source. Much of the testimony focused on the narcotics activity and violent conduct of members of Las Avispas who were named in the Indictment but who were not on trial. The Government also offered testimony about the seizures of drugs and firearms that were made from many of the absent co-defendants.

Although the Government's witnesses provided a comprehensive description of Las Avispas' structure and activities, and much testimony was presented relating to the narcotics activities of the thirty-seven absent co-defendants, the quantity and quality of the proof adduced against each of the present Appellants varied markedly. The evidence offered against each Appellant was as follows.

Ofray

Ofray owned two bars, Rumba's Pub and La Cota Rota,2 in Guayama, as well as an upholstery store in Salinas, from which he sold cocaine in “wholesale" quantities, ranging from eighths of a kilogram to full kilograms. Abdul Mendoza-Lebrón (“Mendoza-Lebrón" ), a former member of Los Jibaritos who acted as second-in-command of their Las Ruinas drug point but who also sold drugs to Las Avispas in 1997 and 1998, testified that Ofray was a major cocaine supplier in Guayama. Mendoza-Lebrón purchased crack from Ofray for re-sale at Las Ruinas, usually from Ofray's upholstery store or from Ofray's residence in Puente Jobo, on a weekly basis from 1994 until Mendoza-Lebrón's arrest in 1999. Mendoza-Lebrón testified that Ofray sold large amounts of drugs to Las Avispas, Los Jibaritos and, indeed, “to anybody who would come to buy from him." Juan Rivera-Rivera (“Rivera-Rivera" ), the former leader of the rival Las Jibaritos gang during much of the time period at issue, further testified that Ofray supplied cocaine to drug points run by Las Avispas and that Rivera-Rivera personally purchased cocaine from Ofray on one occasion, in 1997 or 1998. Carlos Collazo (“Collazo" ), another cooperating witness who operated a drug point in the San Felipe ward, between Guayama and Salinas, and frequently associated with and supplied guns to Avispas members, testified that he learned from López-Soto that Ofray was a crack supplier.3

Angel Villodas (“Villodas" ), a cooperating witness who began working as a confidential informant for the FBI in 2000, testified that, on June 8, 2001, he arranged with Ofray to purchase approximately two ounces of cocaine for $1200. Villodas made the purchase on June 14, 2001, at Rumba's Pub. Although Villodas conferred with Ofray when he first arrived at Rumba's Pub to complete the transaction, Villodas

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testified that it was Ofray's part-time employee, Appellant Díaz-Clavell, who delivered the cocaine to Villodas in the bathroom of Rumba's. Villodas also testified that Ofray frequently carried an automatic weapon.

In addition, law enforcement officers testified about Ofray's possession of two handguns. Specifically, in the early morning of July 14, 2002, police officers recovered a .9mm pistol that Ofray deposited in a parked van outside of Rumba's Pub. Later that day, while arresting Ofray, officers seized a Colt .45 pistol that Ofray carried in a duffel bag.

Díaz-Clavell

Díaz-Clavell had a full-time job with the Puerto Rico Department of Public Works, but also worked part-time at Ofray's establishments, Rumba's Pub and La Copa Rota. Mendoza-Lebrón testified that Díaz-Clavell was very frequently in Ofray's company and often present when Mendoza-Lebrón and Ofray conducted drug deals. Mendoza-Lebrón also testified that...

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