U.S. v. Ayala-Garcia

• Citation: 574 F.3d 5
• Decision Date: 24 July 2009
• Docket Number: No. 07-2130.,No. 07-2129.,07-2129.,07-2130.
• Parties: UNITED STATES of America, Appellee, v. Cristian AYALA-GARCÍA, José Luis Alicea-Cotto, Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

574 F.3d 5

UNITED STATES of America, Appellee, v. Cristian AYALA-GARCÍA, José Luis Alicea-Cotto, Defendants, Appellants.

No. 07-2129.

No. 07-2130.

United States Court of Appeals, First Circuit.

Heard May 7, 2009.

Decided July 24, 2009.

Robert Millán, for appellant Ayala-García.

Jorge E. Rivera-Ortíz, for appellant Alicea-Cotto.

George A. Massucco La Taif, with whom Rosa Emilia Rodriguez-Velez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Luke Cass, Assistant United States Attorney, were on brief, for appellee.

Before BOUDIN, HANSEN,^* and LIPEZ, Circuit Judges.

LIPEZ, Circuit Judge.

Appellant José Luis Alicea-Cotto appeals his conviction on drug distribution and firearms charges, and appellant Cristian Ayala-García appeals his conviction on a single firearms charge stemming from the same incident. Both men claim that the evidence presented at their joint trial was insufficient to support their convictions and that statements made by the prosecutor during rebuttal, including a suggestion that the defendants were planning to gun down dozens of innocent individuals, unfairly prejudiced the jury against them. After a close review of the record and relevant caselaw, we agree that Alicea-Cotto's conviction on one firearms count must be reversed due to insufficient evidence and that the prosecutor's improper remarks "so poisoned the well that a new trial is required" for both defendants on the remaining counts. United States v. Manning, 23 F.3d 570, 574 (1st Cir.1994) (citations and quotation marks omitted).

I.

The charges against defendants Alicea-Cotto and Ayala-García arose from events that took place at the Sabana Abajo housing project in Carolina, Puerto Rico, on May 25, 2006. At trial, the prosecution and defense witnesses offered starkly different accounts of what occurred. Although we take the facts in the light most favorable to the government in assessing the defendants' sufficiency claims, see United States v. Angulo-Hernández, 565 F.3d 2, 7 (1st Cir.2009), the prosecutorial misconduct claim obliges us to consider as well the defendants' contrary view of the events in question. We first recite the facts as the jury could have found them.

The incident began when two undercover Puerto Rico police officers, Luis Vega López ("Vega") and José M. Sánchez Santiago ("Sánchez"), were ordered to investigate a drug point on the south side of the Sabana Abajo housing project. As they drove onto the grounds of the project, they noticed the defendants and another man, Benny Alvarado-Arroyo ("Alvarado"),¹ standing next to a Nissan Pathfinder Armada sport utility vehicle ("SUV") whose rear hatch door was open. From a distance of about sixty feet, both officers saw Alicea-Cotto hand a pistol to Alvarado, who put the gun in his waistband and covered it with his shirt. Alvarado then handed money to Alicea-Cotto, ostensibly paying for the firearm. Ayala-García stood nearby, watching the transaction.

Vega and Sánchez exited their vehicle, approached the defendants, and identified themselves as police officers. Approximately twelve feet away from the defendants, four men were sitting on a set of steps near a dumpster watching the activity. Vega testified that he arrested Alicea-Cotto and seized the cash from his hand. Sánchez arrested Alvarado and Ayala-García. Sánchez seized a pistol from Ayala-Garcia, along with a loaded magazine, and also took the handgun from Alvarado's waistband. The weapon recovered from Ayala-García was a loaded 9mm Ruger pistol with an obliterated serial number; the weapon in Alvarado's waistband was a Smith & Wesson 9mm pistol that had been reported stolen to the Puerto Rico Police Department in 1998.

Looking into the open rear of the SUV, which Alicea-Cotto said belonged to him, Vega saw the tip of a rifle sticking out from under a t-shirt. He removed the shirt to reveal an AK-47 assault rifle, which was loaded with thirty-one bullets. Vega then looked inside the driver's side door, which also was open, and saw a transparent plastic bag on the floor in front of the passenger seat. The bag contained $1,068 in cash and assorted narcotics: ninety plastic cylinders of crack cocaine (totaling 10.8 grams), forty-four small plastic bags of cocaine (totaling 10 grams), fifty-six aluminum wrappers of heroin (totaling three grams), and a single small plastic bag containing 1.2 grams of marijuana.

Backup Puerto Rico police officers had arrived as the arrests were taking place, and additional officers arrived shortly thereafter—bringing the total number at the scene to at least ten. In addition to the appellants and Alvarado, the four men who had been sitting on the steps also were arrested. The defendants were driven in a police vehicle, along with the drugs and guns, to the narcotics division in Carolina, Puerto Rico, and the SUV also was brought there by Vega, Sánchez and a third officer.

Alicea-Cotto was indicted on six counts stemming from the May 25 incident: aiding and abetting possession of a stolen firearm (the Smith & Wesson 9mm pistol), in violation of 18 U.S.C. §§ 922(j) and 2 (Count One); aiding and abetting unlawful possession of heroin, cocaine base, cocaine and marijuana, with the intent to distribute the drugs, in violation of 21 U.S.C. §§ 841(a)(1) and 18 U.S.C. § 2 (Counts Three, Four, Five and Six); and knowing possession of firearms (the pistol and the AK-47 rifle) in furtherance of a drug trafficking crime, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) (Count Seven). Ayala-García was charged in Count Two with knowing possession of a firearm with an obliterated serial number (the Ruger pistol), in violation of 18 U.S.C. § 922(k). Although Ayala-García originally was charged with Alicea-Cotto on the drug counts (Three through Six), the district court later granted the government's motion to dismiss those counts against him.

At the seven-day trial, the defense claimed that the government's case was fabricated. Six eyewitnesses—two men who were arrested with appellants and four residents of the housing project who were in the area or saw the activity from their windows—testified that the defendants were among the men sitting on the steps when the officers entered the housing project. The officers immediately proceeded to search each of the men, but found nothing. Several of the officers then went to search a nearby wooded area and emerged with a large, black, duffle-type bag. Some witnesses said they heard an officer yell "bingo!" when the bag was removed from the brush.

According to the defense witnesses, all seven men who had been sitting on the steps were arrested and placed in a police van. Alicea-Cotto was the last to be brought to the van because the officers took him first to the Nissan Armada and kept him there while they searched the vehicle. The officers found only some money in the SUV. The arrested men were then all transported to the drug division in Carolina. The two men in that group who appeared as defense witnesses, Luis Geraldo Cruz-Ortiz and Joan Ojeda, testified that they saw officers take the weapons that were displayed at appellants' trial out of the black bag at the police station, and Cruz-Ortiz said that he also saw the drugs removed from the bag. Cruz-Ortiz, Ojeda and the two others who were not charged were released at about midnight.

Testimony from one or more of the defense witnesses contradicted, or varied from, the officers' testimony in several other significant respects: (1) the witnesses reported that all doors on the SUV were closed when the officers arrived, and the officers opened them; (2) one officer was heard to say "[t]here is nothing here" after the officers searched Alicea-Cotto's vehicle; and (3) the witnesses saw no firearms transaction take place between Alicea-Cotto and Alvarado, and they saw no weapons at all in the defendants' possession. During the government's presentation of rebuttal evidence, one of the backup officers, Ender Meléndez, testified that no black bag was ever recovered at the scene.

In the government's rebuttal argument, the prosecutor made the following remarks that the government concedes were improper:

Ladies and gentlemen of the jury, those (indicating) are bullets from an AK-47 assault rifle. There are 31 of those bullets that were in this gun, ready to go on May 25th. Thirty-one potential lives were saved on May 25th, 2006. And for that, the district of Puerto Rico should be thankful, 31 lives were saved.

The prosecutor made a number of other comments that defendants challenge as improper, including urging the jury to look at the size of the bullets and asserting that Alicea-Cotto was "armed for a war that goes on every day in public housing projects around Puerto Rico."²

Defendants moved for a mistrial based on the prosecutor's remarks. In denying the motions, the district court stated that it would instruct the jury to judge the defendants "only on the evidence that has been presented, not on those comments." The court also rejected defendants' motions for a judgment of acquittal under Federal Rule of Criminal Procedure 29.

Alicea-Cotto was found guilty on the two firearms charges (Counts One and Seven) and three drug charges (Counts Three through Five), but not guilty on the marijuana distribution crime alleged in Count Six. Ayala-García was found guilty on the only charge remaining against him, Count Two, which alleged the unlawful possession of a firearm with an obliterated serial number.³ Alicea-Cotto was subsequently sentenced to a term of sixty-three months on Counts One, Three, Four and Five, to be served concurrently, and a consecutive sixty-month term on Count Seven. Ayala-García was sentenced to time served.

On appeal, defendants Ayala-García and Alicea-Cotto argue that their convictions must be overturned, and judgments of acquittal entered, because the evidence presented by the government failed to establish the elements...