578 F.3d 78 (1st Cir. 2009), 05-2650, United States v. Rivera Calderon

Docket Nº:05-2650, 05-2651, 05-2652, 05-2839.
Citation:578 F.3d 78
Opinion Judge:HOWARD, Circuit Judge.
Party Name:UNITED STATES of America, Appellee, v. JOS
Attorney:Laura Maldonado Rodr
Judge Panel:Before LIPEZ and HOWARD, Circuit Judges, and DiCLERICO,[*] District Judge.
Case Date:August 26, 2009
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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578 F.3d 78 (1st Cir. 2009)

UNITED STATES of America, Appellee,


JOSÉRIVERA CALDERÓN, Jesús Pomales-Pizarro, Leonardo Rivera Torres, Luis Rosario-Rivas, Defendants, Appellants.

Nos. 05-2650, 05-2651, 05-2652, 05-2839.

United States Court of Appeals, First Circuit.

August 26, 2009

Heard Oct. 28, 2008.

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Laura Maldonado Rodríguez, for appellant Leonardo Rivera Torres.

Saul Roman Santiago, for appellant JoséA. Rivera Calderón.

Rafael Anglada-López, for appellant Jesús Pomales-Pizarro.

Judith H. Mizner, Assistant Federal Public Defender, Federal Defender Office, District of Massachusetts, for appellant Luis Daniel Rosario-Rivas.

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German A. Rieckehoff, Assistant United States Attorney, with whom Nelson Pèrez-Sosa, Assistant United States Attorney, Chief, Appellate Division and Rosa Emilia Rodriguez Velez, United States Attorney, were on brief, for appellee.

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

HOWARD, Circuit Judge.

After a thirty-four day trial, a jury convicted the appellants, Jesús Pomales-Pizarro ("Pomales"), Luis Daniel Rosario-Rivas ("Rosario"), JoséA. Rivera Calderón ("Calderón"), and Leonardo Rivera Torres ("Torres"), of conspiring to possess with the intent to distribute cocaine, cocaine base, heroin, and marijuana. See 21 U.S.C. § § 841(a)(1), 841(b)(1)(A), 846. They were later sentenced to lengthy prison terms.

The appellants challenge both their convictions and sentences. They advance a spate of claims in the process, the most prominent one being a challenge to the sufficiency of the evidence underlying their convictions. We are not persuaded that any of the claims justify the granting of relief.

I. Facts

We provide many of the salient facts here, adding more or elaborating further when discussing particular issues. " Because the facts stated here are relevant to the appellants' sufficiency claims, we present them in the light most favorable to the jury's verdict." United States v. Cruz-Rodríguez, 541 F.3d 19, 25 (1st Cir.2008) (citation omitted).

The charged crimes arose from the operation of drug distribution points in Guaynabo, Puerto Rico. The points were in operation from 1995 to 2003 in a public housing project. The eight drug points, which were open twenty-four hours a day, were all located in La Placida, a square at the center of the project. Collectively, they offered a buffet of contraband that included marijuana, cocaine, crack cocaine, and heroin. The drug points were controlled by various " point owners," who periodically met with each other to discuss matters pertaining to the drug trafficking operation. These discussions addressed a variety of issues including ownership of points, drug pricing, security, rules and internal discipline.

Conspiracy members, including some of the point owners, performed various tasks that facilitated the functioning of the overall operation. Cookers processed drugs for the point owners. Runners transferred drugs from the points to the ground-level sellers who, in turn, sold the drugs to the ground-level customers. Runners would also relay a portion of the profits from the sales to the drug point owners. Finally, enforcers protected the network from various threats and maintained discipline within the network. To help them perform their roles, enforcers acquired, hid and used firearms.

After an investigation, which included warrant-based searches that resulted in the seizure of drugs from the apartments of appellants Pomales and Calderón, the government obtained a grand jury indictment. The indictment charged ten individuals, including the appellants, with conspiring to distribute drugs. The appellants elected to go to trial and were tried together.

At trial, the government relied predominantly on the testimony of two cooperating witnesses, Luis Rodriguez Gonzalez ("Rodriguez") and Jesus Rafael Rivera-Santiago

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("Santiago"). Both acknowledged that they were members of the alleged conspiracy. In addition to outlining the general structure of the operation, sketched above, the cooperating witnesses implicated all four appellants as members of the network.

Both witnesses identified appellant Pomales as the owner of a crack point. Rodriguez testified that Pomales employed four people, including Rodriguez himself and appellant Torres, who cooked cocaine into crack for Pomales.

The cooperating witnesses identified Rosario as performing, at various times, at least two roles within the network-point owner and enforcer. Rodriguez testified that Rosario was the owner of a cocaine and crack point. Santiago corroborated this testimony and added that Rosario employed three others, including Torres, who cooked cocaine into crack for Rosario. With respect to Rosario's role as an enforcer, Rodriguez testified that Rosario enforced for himself and for other point owners. In Rosario's capacity as an enforcer, Santiago testified that Rosario bought and stored weapons, and indeed killed two people.

Santiago identified Calderón as a point owner, specializing in marijuana. According to Santiago, Calderón employed three people as sellers.

Finally, the cooperating witnesses portrayed Torres as a jack of all trades. Collectively, they testified that Torres cooked cocaine for Pomales, Rosario and Rodriguez; was a runner for Pomales and others; was a seller for Santiago; was an enforcer for Pomales and for others, along with Santiago and Rosario; and eventually became a marijuana point owner, employing two people to sell for him.

The jury found all of the appellants guilty of conspiring to distribute controlled substances. Challenging the sufficiency of the evidence, the appellants all filed unsuccessful motions for judgment of acquittal. See Fed.R.Crim.P. 29(c).

II. Discussion

A. Trial

All four appellants present sufficiency claims. Three of them also challenge the admission of certain evidence. Although we might ordinarily consider the admissibility claims up front, for ease of exposition we first will take up the sufficiency arguments common to all of the appellants and then address the discrete admissibility claims. Appellant Pomales also argues that he should have been tried separately from the other defendants. We address that claim last.

1. Sufficiency of the Evidence

As each defendant moved for a judgment of acquittal, we review the sufficiency claims de novo. See United States v. Jiménez-Torres, 435 F.3d 3, 8 (1st Cir.2006). We view the evidence, both direct and circumstantial-and including all plausible inferences drawn therefrom-in the light most favorable to the verdict. United States v. Fenton, 367 F.3d 14, 18 (1st Cir.2004). Additionally, we bear in mind that " [c]redibility issues must be resolved in favor of the verdict." United States v. Pérez-Ruiz, 353 F.3d 1, 7 (1st Cir.2003).

The appellants were charged with conspiracy to distribute drugs. To establish that a conspiracy existed, the government had to prove beyond a reasonable doubt that each defendant knowingly and voluntarily agreed with others to commit a particular crime. See Cruz-Rodríguez, 541 F.3d at 26. Such an agreement may be express or tacit, that is, represented by words or actions, and may be proved by direct or circumstantial evidence. See

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United States v. David, 940 F.2d 722, 733-34 (1st Cir.1991); see also United States v. Barnes, 244 F.3d 172, 175 (1st Cir.2001).

Where, as here, the government has charged multiple defendants with participation in a single conspiracy, an issue often arises over whether the evidence established that the defendants were participants in the single conspiracy charged or instead established that the defendants were involved in a conspiracy or conspiracies other than the one charged. See United States v. Soto-Beníquez, 356 F.3d 1, 18 (1st Cir.2003). In the event of a variance in proof, a conviction will be reversed if there has been " prejudice to the defendant's substantial rights-that is, when lack of notice regarding the charges deprives the defendant of his ability to prepare an effective defense and to avoid surprise at trial." Id. at 27.

Although all of the appellants argue that the evidence was insufficient to establish their involvement in the single charged conspiracy, at least two present arguments sounding in variance, suggesting that the evidence, at best, supports the existence of multiple, independent drug trafficking conspiracies different from the one charged. When such arguments are advanced, the inquiry ordinarily is, again, one of evidentiary sufficiency. Pérez-Ruiz, 353 F.3d at 7; United States v. Portela, 167 F.3d 687, 696 (1st Cir.1999) ("[W]hether a given body of evidence is indicative of a single conspiracy, multiple conspiracies, or no conspiracy at all is ordinarily a matter of fact; a jury's determination in that regard is subject to review only for evidentiary sufficiency.") (internal quotation marks and citation omitted). Accordingly, we must ask whether " a rational jury could have found beyond a reasonable doubt that each defendant joined a single conspiracy." Portela, 167 F.3d at 696 (emphasis added).

a. Common purpose, interdependence and overlap

In determining whether the proof suffices to establish the single conspiracy charged, " we ultimately look at the totality of the evidence." United States v. Mangual-Santiago, 562...

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