540 F.3d 24 (1st Cir. 2008), 05-1800, United States v. Sanchez-Badillo

Docket Nº:05-1800, 05-2045, 05-2047.
Citation:540 F.3d 24
Party Name:UNITED STATES of America, Appellee, v. David SANCHEZ-BADILLO and Raymond Mendez-Echevarria, Defendants, Appellants.
Case Date:August 27, 2008
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 24

540 F.3d 24 (1st Cir. 2008)

UNITED STATES of America, Appellee,

v.

David SANCHEZ-BADILLO and Raymond Mendez-Echevarria, Defendants, Appellants.

Nos. 05-1800, 05-2045, 05-2047.

United States Court of Appeals, First Circuit.

August 27, 2008

Heard May 7, 2007.

Rafael F. Castro Lang, for appellant David Sanchez-Badillo.

Raymond Rivera Esteves, for appellant Raymond Mendez-Echevarria.

Mariana E. Bauzá-Almonte, Assistant United States Attorney, with whom Rosa Emilia Rodriguez-Velez, United States Attorney and Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

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

HOWARD, Circuit Judge.

After a lengthy jury trial, appellants David Sanchez-Badillo (“Sanchez" ) and Raymond Mendez-Echevarria (“Mendez" ) were convicted of conspiring to distribute heroin, cocaine, cocaine base and marijuana. Mendez was also convicted of two counts of illegal weapon possession. They were sentenced to terms of imprisonment of 292 months and life, respectively.1On appeal Mendez and Sanchez both claim that while they were charged with participating in a single conspiracy, the evidence adduced at trial demonstrated the existence of separate, independent conspiracies. Thus, they argue, the jury's conspiracy verdict was not supported by the evidence. Both men also claim the trial court made sentencing errors. In addition, Mendez argues that the evidence was insufficient to support the jury's verdict against him on the weapons charges, and that prosecutorial misconduct entitles him to a new trial. Finally, Sanchez claims that the trial judge made impermissible comments in the jury's presence, and that he was denied effective assistance of counsel. We affirm.

I. FACTUAL BACKGROUND

We recount the facts in the light most favorable to the verdicts being appealed. United States v. Portela, 167 F.3d 687, 692 (1st Cir.1999). The basic facts of the case are outlined first, with further details added to address particular arguments.

This case involved drug trafficking at the Los Lirios del Sur housing project (“Los Lirios" ) in Ponce, Puerto Rico. The government's case was based, to a large extent, on the testimony of three cooperating witnesses-Carlos Ramon Rivera Segarra, Ferdinand Pagan Flores and Jonathan Negron Torres. According to extensive trial testimony, the central player in the drug conspiracy was one Alex Crespo-Echevarria, a/k/a Alex Gatillo (“Gatillo" ), the owner of two “drug points" at Los Lirios. As owner, Gatillo collected “rent" -generated from drug sales-from those who ran the day-to-day operations of the drug points. Gatillo was also known to have enforced his rent collection and his territorial boundaries with both actual and threatened violence.

One of Gatillo's drug points, known as the “lower point," was located near block # 10 at Los Lirios. This point was managed by appellant Sanchez, who, according to trial testimony, was known to carry a gun. The lower point trafficked primarily in heroin, as well as marijuana. In order to get the drugs to the street-level sellers, Sanchez used a “runner," Nelmaris Rodriguez, who was also responsible for collecting money from the sellers. After the sellers received their shares of sales proceeds, Rodriguez passed the balance of the proceeds on to Sanchez.

Gatillo's other Los Lirios drug point, known as the “upper point," sold marijuana and cocaine. Gatillo's involvement with the upper point dated back to 1999, when he removed the point's original owner. The point subsequently fell under the control of a rival of Gatillo's, who was driven off by death threats made by Mendez and his brother, to the benefit of Gatillo. Mendez's brother took over management of the upper point until his 2002 imprisonment, whereupon Mendez-who had returned to Puerto Rico in 2002 after living in Florida for approximately two years-took over.

In September 2002, a rival marijuana dealer, Felix Gelbi 2, was shot and killed in a park at Los Lirios. Negron Torres testified that he purchased marijuana from Gelbi at approximately 11 p.m. near the park, and that as he sat on some bleachers to smoke, saw Gelbi continue through the park. He further stated that as Gelbi neared a market, Mendez and others called out to Gelbi, and then fired several shots at him, killing him. A few days later, Mendez admitted to Negron Torres that he shot Gelbi in the mouth.

Mendez's involvement with the upper drug point ended when he was arrested on October 23, 2002. When he was seized by federal agents, Mendez was a passenger in a pickup truck that was leaving Los Lirios. The agent who removed the driver from the truck saw a handgun on the front bench seat. It contained a fully-loaded magazine and a bullet in the chamber. Shortly thereafter, another agent found a second handgun under the passenger seat Mendez occupied. This gun, which was equipped with a laser sight, also had a full magazine and a round in the chamber ready to be fired.

In late September 2002, Mendez and Sanchez had been indicted for participating in a drug conspiracy, in violation of 21 U.S.C. §§ 841(a)(1) and 846. In light of the circumstances surrounding Mendez's October arrest, he was indicted again in November, for illegal possession of a firearm with an obliterated serial number, and possession of a firearm while under indictment. Also, in December, a superseding indictment was returned against Sanchez and Mendez, restating the drug charges, but adding the October weapons possessions as an overt act in furtherance of the conspiracy. Thus, in addition to the two gun charges against Mendez, he and Sanchez were accused of conspiring to knowingly and intentionally possess with intent to distribute one kilogram or more of heroin, five or more kilograms of cocaine, fifty grams or more of cocaine base, and 100 kilograms or more of marijuana.

In addition to convicting Sanchez and Mendez of the criminal charges in the indictment, the jury completed special verdict forms, in which it found Mendez responsible for possessing with intent to distribute less than 100 kilograms of marijuana, that he was a manager of more than five conspiracy members, that he possessed weapons in furtherance of the conspiracy, and that he murdered Felix Gelbi in furtherance of the conspiracy. The jury found Sanchez responsible for thirty or more kilograms of heroin, less than 100 kilograms of marijuana, and found that he was a leader or organizer of the conspiracy.

II. DISCUSSION

A. Conspiracy convictions (Mendez and Sanchez)

Both appellants argue that while the indictment alleged a single conspiracy-playing a role in Gatillo's organization-the facts introduced at trial proved the existence of multiple, independent conspiracies. Where, as here, there was no objection to the jury instructions, “the issue resolves into a sufficiency-of-evidence question." United States v. Soto-Beniquez, 356 F.3d 1, 18 (1st Cir.2004) (citations omitted). Thus, we must affirm if the jury was presented with evidence sufficient to support its finding that appellants were guilty of the charged conspiracy. Id.

While we ultimately look at the totality of the evidence in determining whether a single conspiracy was proved, Portela, 167 F.3d at 696, we consider a number of factors along the way, none of which, standing alone, in necessarily determinative. These include (1) the existence of a common goal, (2) interdependence among the participants, and (3) overlap among the participants. Id. at 695; Soto-Beniquez, 356 F.3d at 18-19.It is also not necessary to prove that “each conspirator knew of or had contact with all other members. Nor ... that the conspirators knew all of the details of the conspiracy or participated in every act in furtherance of the conspiracy." Id. at 19 (citing United States v. Mena-Robles, 4 F.3d 1026, 1032 (1st Cir.1993)).

Mendez concedes that the trial evidence was sufficient to support the finding of a common goal-selling drugs for profit. See Portela, 167 F.3d at 695 (“[G]oal of selling cocaine for profit satisfies the common goal requirement." ). Sanchez, however, disputes this finding, alleging that the objectives of the two drug points may have been “identical," but were not “in common." Given that we have noted the wide breadth of the “common goal" requirement, see id. at 695 n. 3 (citing United States v. Richerson, 833 F.2d 1147, 1153 (5th Cir.1987)), and the testimony that the Los Lirios drug trade was controlled by Alex Gatillo, we have little trouble finding that this conspiracy had a common goal of serving Gatillo's illicit interests.

Both appellants argue that the evidence was insufficient to prove interdependence among the participants in the conspiracy. To the...

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