U.S. v. Aviles-Colon

• Citation: 536 F.3d 1
• Decision Date: 31 July 2008
• Docket Number: No. 05-2040.,No. 05-1384.,No. 05-2039.,05-1384.,05-2039.,05-2040.
• Parties: UNITED STATES of America, Appellee, v. Luis AVILÉS-COLÓN, Jose J. Galiany-Cruz, and Juan Carrión Torres, Defendants, Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

536 F.3d 1

UNITED STATES of America, Appellee, v. Luis AVILÉS-COLÓN, Jose J. Galiany-Cruz, and Juan Carrión Torres, Defendants, Appellants.

No. 05-1384.

No. 05-2039.

No. 05-2040.

United States Court of Appeals, First Circuit.

Heard December 7, 2007.

Decided July 31, 2008.

David Abraham Silverman, for appellant Avilés-Colón.

Jose E. Rivera-Ortíz, for appellant Galiany-Cruz.

Linda Backiel, for appellant Carrión Torres.

Julia M. Meconiates, Assistant United States Attorney, with whom Rosa Emilia Rodriguez-Velez, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, were on brief, for appellee.

Before LYNCH, Chief Judge, LIPEZ and HOWARD, Circuit Judges.

LIPEZ, Circuit Judge.

An indictment alleged that seventeen individuals conspired to distribute heroin, cocaine, and marijuana between December 2000 and March 2003 at three drug points in Coamo, Puerto Rico in violation of 21 U.S.C. §§ 841(a) and 846. Most of these individuals were also charged with possession of firearms in furtherance of the conspiracy in violation of 18 U.S.C. §§ 921(a)(3) and 924(c)(1). All but the three appellants here, Juan Carrión Torres ("Carrión"), José Galiany-Cruz ("Galiany"), and Luis Avilés-Colón ("Avilés"), pled guilty to the charges alleged in the indictment. The appellants were tried jointly, and a jury found each guilty on the conspiracy and firearms counts. The appellants were later sentenced to lengthy prison terms.

The appellants each raise a number of challenges to their convictions and sentences. After careful review of the record and case law, we have found no reversible error with respect to either Galiany or Avilés and therefore affirm their convictions and sentences. However, we conclude that the government's failure to disclose exculpatory evidence material to Carrión's defense, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), requires us to vacate his convictions and sentence.

I.

The evidence presented by the government in the appellants' eight-day jury trial was provided primarily through the testimony of three witnesses — confidential informant Carlos Bonilla Santos ("Bonilla"), cooperating co-defendant Carlos Iván Torres-Martinez ("Torres"), and Special Agent Noel Gil ("Gil") of the Federal Bureau of Investigations ("FBI"). The government also introduced audiotapes of conversations among the co-conspirators that Bonilla recorded during his undercover participation in the conspiracy.

We begin by providing a brief general description of the drug-trafficking conspiracy, as depicted by the witnesses' testimony, and then recount in some detail particular evidence provided by Bonilla and Torres. Throughout, the facts are conveyed in the light most favorable to the verdict. United States v. Rodriguez-Marrero, 390 F.3d 1, 6 (1st Cir.2004).

A. General Description

Appellants were among seventeen individuals who operated multiple drug points in Coamo, Puerto Rico, between December 2000 and March 2003.¹ Appellant Galiany was the leader of the group, known as the Cataño gang,² and appellants Carrión and Avilés were both identified as enforcers who protected the conspiracy's drug business against rival gang members and helped the conspiracy expand to new drug points, including those under the control of rival gangs. Torres testified that he also worked as a runner, delivering drugs to street-level sellers within the organization and collecting money from those sellers. The conspirators would buy large quantities of drugs, divide those drugs into smaller packages, and then sell the repackaged drugs at their drug points.

Although the government's witnesses described interactions between Carrión and other members of the conspiracy, Carrión contended that he was, in fact, a rival of Galiany's gang and thus not a member of the conspiracy charged in the indictment. He presented no witnesses in his defense, but relied on challenges to the credibility of Bonilla and Torres. Galiany defended himself by trying to impeach Torres's testimony and arguing that Torres led the conspiracy and was testifying against him to deflect responsibility in the hopes of getting a lower sentence. He also presented one witness in his defense. Avilés primarily argued that there was insufficient evidence linking him to the conspiracy and, like Carrión, he declined to offer any witnesses in his defense.

B. Specific Testimony

1. Bonilla

Bonilla, a former police officer, testified that he was "pensioned honorably" from the Puerto Rico police force because of injuries stemming from an incident in which he apprehended a gun-wielding assailant attempting to rob his father's store. After his retirement from the police force, he sold jewelry and operated a pawn shop out of his home in Coamo. Through this business, he became familiar with members of the Cataño organization. Bonilla first met Galiany in February 2001 when Galiany came to his home to purchase paint and jewelry. He next saw Galiany when co-defendant Jose Flores-Rivera ("Flores") arranged for Galiany to rent a car from Bonilla. Bonilla encountered Galiany again in March 2001, in a gray Acura with co-defendant Kelvin Torres-Ruiz ("Kelvin") and "Juanito," whom he later identified as appellant Carrión. Kelvin was driving, and "Juanito" was in the back seat holding two AK-47s. Although it was night, Bonilla was able to clearly see the guns because the car stopped near him and he shook hands with the three men in the car. During this encounter, Galiany told Bonilla that they were looking for "Cuquito," who controlled the Las Palmas drug points, so that they could kill him.

Although Bonilla was not yet working as an FBI informant, he reported the encounter to the FBI because he had a "relationship of trust" with FBI Agent Digno Cartagena from his tenure on the police force. Subsequently, Bonilla entered into a formal relationship with the FBI to act as a confidential informant.³ He agreed to wear a hidden tape recorder during some of his encounters with people who were suspected of being members of Galiany's gang.

In the course of his testimony, Bonilla explained that Galiany controlled various Coamo drug points, including ones in La Vega del Puente, San Luis, and Santa Ana, as well as a drug point in Las Ollas, Santa Isabel. In March 2001, Bonilla visited the La Vega del Puente point with Galiany and co-defendants Julio Mateo-Espada ("Mateo") and Flores. When Galiany learned that the conspiracy members at that point had no drugs on hand to sell, Galiany, Mateo, Flores, and Bonilla went to Galiany's house to process drugs. They mixed large blocks of heroin with unidentified chemicals, divided the large blocks into smaller units, and then packaged these smaller units in little pieces of colored paper. Based on his experience as a police officer, Bonilla testified that they were processing an eighth of a kilogram of heroin. At that time, he saw several handguns and revolvers in Galiany's house.

Bonilla returned to Galiany's house on many occasions. Several times he saw Avilés there, but did not engage with him. In December 2001, Galiany took Bonilla to Avilés's house to collect money, which Bonilla presumed was from drug sales, and to show Bonilla a 30-06 Remington model rifle.

Four months later, on March 21, 2002, Galiany came to Bonilla's house and gave him a bag with an Uzi in it, saying "Keep this for me because the police is after me." After Bonilla reported the incident to the FBI, the agents decided to stage an arrest of Bonilla to protect his undercover status while enabling them to seize the Uzi. Bonilla was then quickly released from jail. When Galiany came by his house the next day, Galiany said, "Man, if you are giving information to the FBI, don't tell them anything about me. I mean, give me a break because I'm not doing anything wrong and I have children." Bonilla told Galiany that he was not working for the FBI. Galiany then said in reference to the Uzi: "That's Juano's [Carrión's] and now I am responsible for it. I have to respond for it."⁴

While on the stand Bonilla explained that he had been able to record Galiany, Torres, and other gang members on several occasions. These recordings were entered into evidence and Bonilla described the contents of the recordings he made while in the company of Galiany and his men. Several of these recordings, including the ones described below, were played for the jury. Since the recordings were in Spanish, the jury was provided with a Spanish transcript and an English translation of the recordings. In a recording made on February 6, 2002, Galiany discussed the events leading up to his shooting of "Nelson," a rival drug dealer.⁵ In a conversation recorded on February 27, 2002, Galiany was trying to borrow money from Bonilla to purchase an AK-47. Bonilla was reluctant to lend Galiany the money, but Galiany explained that he would be able to repay Bonilla after he sold the cocaine he had on hand. Galiany also discussed the quality of the cocaine he was processing at the time, urging Bonilla to sample it. In a recording from March 27, 2002, which was played on cross-examination, Torres told Bonilla that "Juanito" (Carrión) and rival gang member "Enrique" wanted to kill "Jose" (Galiany).⁶

2. Torres

Torres, the cooperating co-defendant, testified that he was involved in packing and processing the drugs that were sold at the drug points. Weekly, he processed about an eighth of a kilogram of heroin, an eighth of a kilogram of cocaine, and a half pound of marijuana. In addition, as an enforcer and a runner, he transported drugs to the drug points and collected money from the dealers. According to Torres, Galiany's gang controlled three drug points in Coamo — La Vega del Puente, San Luis, and Santa Ana. Heroin was sold daily at La Vega del Puente, cocaine and marijuana were sold at San Luis on Thursdays and Fridays, and cocaine was sold those same two days at Santa Ana.

Torres...