U.S. v. Aguilar

• Decision Date: 05 November 2009
• Docket Number: Docket No. 08-4640-cr.
• Citation: 585 F.3d 652
• Parties: UNITED STATES of America, Appellee, v. Martin AGUILAR, also known as Sassy, Jeffrey Taylor, Quincy Martinez, Angel Navarro, also known as Prep, Anthony Perez, also known as Little Anthony, Edwin Aguilar, also known as Lucky, Armando Molina, Eric Rosario, also known as Buzz, Defendants, Gilberto Caraballo, also known as Carlos Caraballo, also known as Anthony Rodriguez, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

585 F.3d 652

UNITED STATES of America, Appellee, v. Martin AGUILAR, also known as Sassy, Jeffrey Taylor, Quincy Martinez, Angel Navarro, also known as Prep, Anthony Perez, also known as Little Anthony, Edwin Aguilar, also known as Lucky, Armando Molina, Eric Rosario, also known as Buzz, Defendants, Gilberto Caraballo, also known as Carlos Caraballo, also known as Anthony Rodriguez, Defendant-Appellant.

Docket No. 08-4640-cr.

United States Court of Appeals, Second Circuit.

Argued: September 21, 2009.

Decided: November 5, 2009.

James E. Neuman (David Stern, on the brief), New York, NY, for Defendant-Appellant.

David Bitkower, Assistant United States Attorney (Emily Berger, Assistant United States Attorney, on the brief), on behalf of Benton J. Campbell, United States Attorney

for the Eastern District of New York, Brooklyn, NY, for Appellee.

Before: LEVAL, RAGGI, and LIVINGSTON, Circuit Judges.

REENA RAGGI, Circuit Judge:

Defendant Gilberto Caraballo appeals from a judgment of conviction entered after a jury trial in the United States District Court for the Eastern District of New York (Raymond J. Dearie, Chief Judge) at which he was found guilty on five counts relating to the murder of Jose Fernandez, see 18 U.S.C. § 1958(a) (substantive and conspiratorial murder-for-hire); id. § 373(a) (solicitation to commit a crime of violence); id. § 924(c) (use of a firearm in relation to a crime of violence); 21 U.S.C. § 848(e)(1)(A) (murder while engaging in a narcotics offense); one count relating to the murder of Edward Cortes, see id. (murder while engaging in a narcotics offense); conspiracy to distribute five kilograms or more of cocaine hydrochloride and fifty grams or more of cocaine base ("crack"), see id. §§ 841(b)(1)(A), 846; and two counts of firearm possession, see 18 U.S.C. § 922(g) (felon in possession of a firearm); id. § 924(c) (possession of a firearm in furtherance of a drug trafficking crime). Caraballo was sentenced principally to five concurrent terms of life imprisonment and is currently serving that sentence.

On appeal, Caraballo challenges (1) the sufficiency of the evidence supporting his § 848(e)(1)(A) conviction for the murder of Jose Fernandez,¹ as well as (2) the district court's failure (a) to dismiss a juror for cause after the start of trial, and (b) to give a multiple-conspiracies charge. We discuss and reject Caraballo's claims of error by the district court in a summary order issued today. See United States v. Caraballo, ___ Fed.Appx. ___ (2d Cir. 2009). In this opinion, we address his sufficiency challenge. We conclude that the "substantive connection" requirement implied in the "engaging in" element of § 848(e)(1)(A) can be satisfied not only by proof that at least one of the purposes of the killing was related to an ongoing drug conspiracy, as we held in United States v. Desinor, 525 F.3d 193, 202 (2d Cir.2008), but also by proof that the defendant used his position in or control over such a conspiracy to facilitate the murder. The trial evidence in this case demonstrated that Caraballo used his position as a supplier in the charged drug conspiracy to induce confederates to participate in Fernandez's murder, promising to forgive past drug debts and to supply drugs in the future. This was sufficient to sustain the challenged § 848(e)(1)(A) conviction.

Thus, for the reasons stated in this opinion and the contemporaneous summary order, we affirm Caraballo's judgment of conviction.

I. Background

Caraballo's conviction was secured following a lengthy trial at which the government sought, but did not ultimately obtain, death sentences for the murders of Jose Fernandez and Edward Cortes. We here describe only those facts relevant to Caraballo's sufficiency challenge to his § 848(e)(1)(A) conviction for the Fernandez murder. In doing so, we view the evidence, as we must, in the light most favorable to the government. See United States v. Williams, 558 F.3d 166, 175 (2d Cir.2009).

A. The Narcotics Conspiracy

Caraballo was charged with killing Jose Fernandez "while engaged in an offense punishable under section 841(b)(1)(A) of Title 21 of the United States Code," specifically, a conspiracy to distribute five kilograms or more of cocaine and fifty grams or more of crack. United States v. Caraballo, No. 01 Cr. 01367(S-5), Superseding Indictment at 3 (Jan. 28, 2005) (citing 21 U.S.C. § 848(e)(1)(A)). Caraballo does not challenge the sufficiency of the evidence supporting his conviction on the underlying narcotics conspiracy, nor could he. The evidence overwhelmingly demonstrated that between January 1989 and December 2001, Caraballo and various confederates, including Quincy Martinez, Martin Aguilar, Armando Molina, and Eric Rosario, conspired to distribute and possess with intent to distribute large quantities of cocaine and crack in violation of 21 U.S.C. § 841(b)(1)(A). See id. § 846 ("Any person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.").

The evidence further demonstrated that Caraballo was the conspiracy's wholesale supplier, providing drugs either through direct sales or on consignment to confederates who sold (or arranged for the sale of) those drugs on the street, principally in Sunset Park, Brooklyn. Among the persons to whom Caraballo supplied drugs was Molina who, at various times, employed Martinez, Rosario, and Fernandez as street-level dealers. After a falling-out with Molina, Caraballo began supplying drugs to Fernandez on consignment. Caraballo likewise supplied drugs on consignment to co-defendant Aguilar and Aguilar's associate, Jeffrey Taylor. Caraballo ceased providing drugs to Aguilar in September 2000 after Aguilar failed to pay his debts and, along with Taylor, robbed one of Caraballo's drug associates.

B. The Murder of Jose Fernandez

Co-conspirator Quincy Martinez had been dating Fernandez, also known as "Tris," for more than ten years when, in September 2000, she began a romantic relationship with Caraballo. Apparently, Fernandez often physically abused Martinez, and, on several occasions in the fall of 2000, Caraballo advised Martinez that he could "get rid" of Fernandez. See Trial Tr. at 2506, 2596-97. On December 7, 2000, following a "big fight" between Martinez and Fernandez, Martinez told Caraballo that he should "do it," i.e., "murder Tris," id. at 2600-04. Caraballo responded, "say no more." Id. at 2604.

Caraballo had, in fact, been planning Fernandez's murder for some time. In October 2000, Caraballo solicited his drug confederate Aguilar to kill Fernandez, promising in return to forgive Aguilar's drug debts and to resume supplying drugs to him on consignment. Aguilar's drug-dealing partner Taylor concluded that he would "double [his own drug] sales" if Aguilar's line of credit with Caraballo was reopened, and so he too agreed to participate in the Fernandez murder in exchange for $5,000 in cash or drugs. Id. at 1665-66. Taylor's participation was central to Caraballo's plan: Taylor worked as a maintenance man in Green-Wood Cemetery in Sunset Park, which Caraballo identified as a convenient place to hide Fernandez's dead body.

Aguilar and Taylor knew that Caraballo wanted Fernandez killed because of his relationship with Martinez. Taylor told Aguilar that this was a "stupid reason to kill Tris," but Aguilar explained: "Who cares? It's not our business. I'll get this done and everything's squashed," i.e., all of Aguilar's problems with Caraballo would be resolved and they could resume their profitable drug distribution arrangement with Caraballo. Id. at 1676.

On the morning of December 9, 2000, shortly after Martinez gave her consent to Fernandez's murder, Caraballo, Aguilar, and Taylor drove Caraballo's van to Fernandez's home. Fernandez had been told that the group was going to Green-Wood Cemetery to steal marble. Once Fernandez was in the van, Caraballo began driving, whereupon Aguilar put his arm around Fernandez and shot him under the chin. Fernandez began screaming, prompting Aguilar to shoot Fernandez again, in the temple. Although Fernandez fell to the floor, he was not yet dead. Indeed, he attempted to escape the van, but Aguilar pulled him back inside. Caraballo then handed Aguilar an automatic pistol, and Aguilar fired several more shots into Fernandez's head and back, finally killing him.

Fernandez's dead body remained in Caraballo's van, parked overnight in his driveway. The next day, Taylor and Aguilar drove the vehicle to Green-Wood Cemetery and there dropped Fernandez's body down a remote storm drain, as previously agreed with Caraballo. As promised, Caraballo thereafter gave Taylor approximately $5,000 worth of cocaine and one hundred ecstasy pills for his role in the murder. Caraballo also forgave Aguilar's drug debt and arranged for him and Taylor to receive drugs on consignment from one of Caraballo's associates.

C. The Jury Charge

With compelling evidence adduced that Caraballo was a participant in both the charged narcotics distribution conspiracy and the murder of Jose Fernandez, defendant's sufficiency challenge reduces to a single issue: did Caraballo commit the murder while "engaging in" the charged drug conspiracy? 21 U.S.C. § 848(e)(1)(A). On this element of § 848(e)(1)(A), the government requested that the jury be charged as follows:

[T]he government must establish that the defendant intentionally killed Jose Fernandez while engaging in the drug conspiracy charged in Count Seven. The term "while engaging in" means more than coincidence in time with a drug conspiracy. It requires not only that the crime occur during the time period covered by the drug conspiracy, but also that the killing be related in some meaningful way to the drug conspiracy. Moreover, the defendant's participation in the killing must be related to the drug...