569 F.3d 8 (1st Cir. 2009), 06-2670, United States v. Flores-de-Jesus

Docket Nº:06-2670, 06-2671, 06-2672.
Citation:569 F.3d 8
Opinion Judge:LIPEZ, Circuit Judge.
Party Name:UNITED STATES of America, Appellee, v. Sa
Attorney:Edward J. O'Brien, for appellant Flores-de-Jes
Judge Panel:Before TORRUELLA and LIPEZ, Circuit Judges, and DiCLERICO,[*] District Judge.
Case Date:June 18, 2009
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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569 F.3d 8 (1st Cir. 2009)

UNITED STATES of America, Appellee,

v.

Saúl FLORES-DE-JESÚS, Daniel Feliciano-Rodríguez, and Rafael Sabino-Morales, Defendants, Appellants.

Nos. 06-2670, 06-2671, 06-2672.

United States Court of Appeals, First Circuit.

June 18, 2009

Heard Oct. 29, 2008.

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Edward J. O'Brien, for appellant Flores-de-Jesús.

Luis R. Rivera González, for appellant Feliciano-Rodríguez.

Irma R. Valldejuli, for appellant Sabino-Morales.

Vernon B. Miles, Assistant United States Attorney, with whom Rosa E. Rodriguez-Velez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and German A. Rieckehoff, Assistant United States Attorney, were on brief, for appellee.

Before TORRUELLA and LIPEZ, Circuit Judges, and DiCLERICO,[*] District Judge.

LIPEZ, Circuit Judge.

This case requires us to assess the propriety of the government's use of a law enforcement officer as the first witness in a multi-defendant drug prosecution to provide an " overview" of the prosecution's case. While we have condemned aspects of this practice before, most notably in United States v. Casas, 356 F.3d 104, 117 (1st Cir.2004), we must regrettably revisit the overview witness issue in some detail because of the abuse of that practice in this case and others.

Appellants Saúl Flores-de-Jesús, Rafael Sabino-Morales, and Daniel Feliciano-Rodríguez were three of twelve co-defendants charged in a four-count indictment with various crimes related to a drug trafficking enterprise at a public housing facility in Trujillo Alto, Puerto Rico. After a jury trial, all three were convicted of conspiracy to possess with intent to distribute at least five kilograms of cocaine, in violation of 21 U.S.C. § 846. Flores-de-Jesús and Sabino-Morales, but not Feliciano-Rodríguez, were also charged with conspiracy to possess, use, brandish, or carry firearms in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c) and ( o ), but only Flores-de-Jesús was convicted on this count. Flores-de-Jesús, Sabino-Morales, and Feliciano-Rodríguez were sentenced to terms of imprisonment of 235 months, 210 months, and 121 months, respectively.

Two of the appellants, Flores-de-Jesús and Sabino-Morales, assert a number of evidentiary errors and contend that the district court wrongly denied their motions for acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure. All three raise distinct objections to their sentences. We affirm the challenged convictions and the sentence imposed upon appellant Feliciano-Rodríguez. However, because we find that the district court improperly applied the manager/supervisor enhancement to defendants Flores-de-Jesús and Sabino-Morales, we vacate their sentences and remand for resentencing.

I.

Appellants were convicted for their participation in a conspiracy that operated out of the Nuestra Señora de la Covadonga public housing development (" Covadonga" ) in Trujillo Alto, Puerto Rico. Between 1998 and 2004, " the Covadonga drug point operated as a thriving drug marketplace in

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which different dealers sold various brands, or lines, of crack, cocaine, heroin, and marijuana, with the organized assistance of runners and lookouts equipped with walkie talkies." United States v. Rodríguez, 525 F.3d 85, 93 (1st Cir.2008) (summarizing facts established at the trial of Wilfredo Feliciano Rodríguez, one of the leaders of the drug point).

Appellants and nine other individuals were named in a four-count superseding indictment rendered by a District of Puerto Rico Grand Jury on March 11, 2004. Count One charged defendants with conspiracy to possess with intent to distribute, and conspiracy to distribute, controlled substances in a public housing project, in violation of 21 U.S.C. § § 841(a)(1) and (b)(1)(A), 846, and 860. The indictment alleged that the conspiracy involved the following drugs: five kilograms or more of cocaine, and/or fifty kilograms of cocaine base (crack), and/or one kilogram or more of a substance containing a detectable amount of heroin, and/or one thousand kilograms or more of marijuana. Flores-de-Jesús and Sabino-Morales were further charged in Count Two of the indictment with conspiracy to use, carry, or possess a firearm in violation of 18 U.S.C. § 924(c)(1)(A) and 924( o ).

According to the indictment, Flores-de-Jesús and Sabino-Morales assisted the leaders and organizers of the conspiracy in the administration of the drug-trafficking organization. Flores-de-Jesús and Sabino-Morales were also classified as managers/runners, whose role was to " supervise the operations of the drug points, to obtain the drugs, and to ensure a sufficient supply of drugs to the point so that there would be continual distribution." The managers/runners would " receive packaged narcotics and would deliver them to the sellers for sale at the drug points. Then the managers/runners would collect the proceeds derived from the drug sales." Feliciano-Rodríguez was charged as a seller who " distribute[d] the drugs at various drug points" within Covadonga. At trial, the majority of the government's evidence against appellants was presented through three witnesses: the lead-off witness, Special Agent Anthony Toro Zambrana of the Special Investigations Bureau of the Puerto Rico Department of Justice; confidential informant (CI) Oscar Espada; and cooperating co-conspirator Omar Medina Torres. Importantly, the government introduced surveillance videotapes and photographs of various drug and firearm transactions at the drug point. Also testifying for the government was an agent involved in an undercover drug purchase at the drug point, as well as several forensic chemists. The chemists presented their analyses of drugs obtained during several controlled purchases at Covadonga, as well as those seized by Agent Toro from building 32 of the housing project. The jury convicted all three defendants on the conspiracy charge, but only Flores-de-Jesús was convicted on the charge of using or brandishing a firearm in relation to a drug trafficking crime.1

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Feliciano-Rodríguez does not challenge his conviction, but contends that the trial judge failed to correctly compute the amount of drugs individually attributable to him for sentencing purposes. Flores-de-Jesús and Sabino-Morales challenge both their convictions and their sentences on various grounds. Their primary claim is that their convictions must be reversed because the district court improperly admitted the testimony of Agent Toro, whom the government used as a so-called " overview witness." In order to address that contention and determine whether the erroneous admission of portions of Agent Toro's testimony requires a new trial, we first describe the legal principles applicable to overview witnesses. Next, we recount Agent Toro's testimony in significant detail because that detail is crucial to our resolution of the overview witness issue. We then proceed to the harmless error analysis, where we describe the most significant inculpatory evidence against these two defendants. Finally, we briefly address the remaining objections of Flores-de-Jesús and Sabino-Morales to their convictions before turning to the various sentencing issues raised by each of the three appellants. Throughout, the facts are conveyed in the light most favorable to the verdict. United States v. Avilés-Colón, 536 F.3d 1, 8 (1st Cir.2008).

II.

A. The Casas Decision

In Casas, we criticized the government's " misguided use" of a government agent as an overview witness to " map out its case and to describe the role played by individual defendants." 356 F.3d at 117. In that case, DEA Agent Stoothoff described an elaborate drug trafficking organization that he said included the defendants, and he testified that this organization handled " specific massive quantities of cocaine and heroin." Id. at 118. We held that this testimony was " improper," id. at 120-21, and " fatally flawed" for a number of reasons. Id. at 119. First, the agent's testimony " went well beyond his personal knowledge," and he " did not differentiate the testimony that was based on personal knowledge from other sources of information, often hearsay." Id. at 118-19. Second, instead of " present[ing] testimony about the characteristics of large-scale drug organizations in general," he " essentially testified that each of the defendants was guilty of the conspiracy charged." Id. at 119. This was particularly troubling because there was

no indication that Agent Stoothoff's conclusions that the defendants were members of the drug organization were even based on testimony that was eventually presented at trial and could be evaluated by the jury.... In fact, Agent Stoothoff's testimony was likely, at least in part, based on the statements of a witness that the government chose not to call at trial; the record shows that the purported leader of the conspiracy, Israel Perez-Delgado, cooperated with the government and provided information. But Israel Perez-Delgado did not testify. The defendants had no chance to cross-examine him, did not know what he had said to the government, and had no basis to challenge a conclusion drawn from what he had said.

Id.

Casas identified three characteristics of overview testimony that make it " inherently problematic." Id. First, " such testimony raises the very real specter that the jury verdict could be influenced by statements of fact or credibility assessments ... not in evidence." Id. Second, " there is...

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