U.S. v. Meises

• Citation: 645 F.3d 5
• Decision Date: 13 May 2011
• Docket Number: Nos. 09–2235,09–2239.,s. 09–2235
• Parties: UNITED STATES of America, Appellee,v.Juan A. MEISES, a/k/a David Vazquez–Coss, a/k/A Juan A. Mieses, and Jose L. Reyes–Guerrero, Defendants, Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

645 F.3d 5

UNITED STATES of America, Appellee,

v.Juan A. MEISES, a/k/a David Vazquez–Coss, a/k/A Juan A. Mieses, and Jose L. Reyes–Guerrero, Defendants, Appellants.

Nos. 09–2235

09–2239.

United States Court of Appeals, First Circuit.

Heard Nov. 3, 2010.Decided May 13, 2011.

Leslie W. O'Brien for appellant Reyes–Guerrero.Rafael F. Castro Lang for appellant Meises.Courtney L. Coker, Assistant United States Attorney, with whom Rosa Emilia Rodríguez–Vélez, 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 LIPEZ, LEVAL,^* and THOMPSON, Circuit Judges.LIPEZ, Circuit Judge.

Appellants Juan Mieses ¹ and Jose Reyes–Guerrero were arrested in a reverse sting operation after they drove to a sham drug deal, with a third co-defendant, in a vehicle containing $100,000 in cash.² A jury found both appellants guilty of a single drug conspiracy count. On appeal, the pair claim that their convictions must be vacated because of three significant errors at trial: (1) the government's use of improper overview testimony from the lead law enforcement agent in the case, (2) the indirect admission of the third co-defendant's out-of-court statement implicating appellants, and (3) the district court's refusal to allow the jury to hear an audiotape recorded on the day of their arrests.³ Reyes–Guerrero further asserts that he is entitled to a judgment of acquittal because the evidence was insufficient to support the jury's verdict.

As we shall explain, the overview testimony at issue here was improper and, to its credit, the district court acknowledged the error when it considered appellants' post-trial motions for acquittal. See United States v. Reyes–Guerrero, 638 F.Supp.2d 177, 185–90 (D.P.R.2009). We also conclude that the district court erred in allowing testimony revealing the co-defendant's inculpatory statement. Those two significant errors entitle appellants to a new trial, and we therefore vacate their convictions and remand for such new proceedings.⁴

I.

A. Factual Background

The facts underlying appellants' convictions, viewed in the light most favorable to the jury's verdict, see United States v. Poulin, 631 F.3d 17, 18 (1st Cir.2011), are as follows.

Puerto Rico Police Sergeant Roberto Cruz, a member of a federal drug task force,⁵ worked undercover in 2007 in an investigation targeting Genito Toribio–Custodio (“Custodio”), an alleged trafficker who operated in the Dominican Republic and Puerto Rico. Also participating in the undercover investigation was Marcos Antonio Torres, a longtime drug trafficker who had been a paid government informant since 2005.⁶ The undercover operation ended prematurely when Custodio detected surveillance units and fled from Puerto Rico to the Dominican Republic.

Seeking to reactivate the investigation the next year, Cruz instructed Torres to solicit Custodio for a cocaine deal in Puerto Rico. On June 19, 2008, in the first of a series of recorded phone calls, Torres informed Custodio that he had 220 kilograms to sell. Initially cautious, Custodio asked Torres if he still communicated with Cruz, whom Custodio did not trust. Torres said they were not in touch. Although Custodio originally said he would travel to Puerto Rico within a few days, he instead arranged for his “partner”—Dario Pereyra–Rubis (“Rubis”)—to carry out the deal. A few days later, during a meeting in San Juan that Torres recorded, Rubis expressed interest in buying 150 kilograms of cocaine and proposed paying for them after his clients paid him. Torres told Rubis that he could deal only in twenty-five kilogram amounts, and he would provide the drugs only if Rubis brought $100,000. Rubis contacted a client by phone to advise that a deal was in the works, and he then left to consult with the client face-to-face.

In a follow-up phone call with Custodio, who had already spoken with Rubis, Torres repeated his refusal to defer payment for the drugs and offered to accept a $100,000 deposit. In another phone call the same evening, when Rubis insisted on getting the drugs without cash down, Torres told Rubis that his buyers should come with the money “so that they are present in the negotiation” and they “know where their money is.” Rubis said he would continue to try to reach an agreement.

Sensing continuing mistrust on the part of Rubis and Custodio, Cruz arranged for Torres to show Rubis sham kilograms of cocaine—packages of wood wrapped with the type of tape commonly used by drug traffickers. Their meeting at a shopping center on June 26 was videotaped, and Cruz also was on the scene as part of the surveillance team. Rubis's concerns apparently were resolved when he saw the “cocaine,” and Torres testified that Rubis became “in a hurry to make the deal.”

In a series of conversations between Rubis and Torres on the morning of June 27, the deal was confirmed for fifteen kilograms at $14,000 apiece, with $100,000 in cash to be paid on the spot and the balance due a day later. Torres testified that, in the first call, Rubis reported that he was “with the people, the owners of the money with the money; and that he was desperate to ... make the deal, and he didn't want the people to get bored and leave.” They agreed to meet at 2 p.m., and in a subsequent call Torres told Rubis to come to the shopping center where they had previously met.

DEA Task Force members, including Cruz, set up surveillance with videotaping equipment near the shopping center. Agents saw Rubis arrive at the shopping center alone in a green Mazda that belonged to appellant Reyes–Guerrero, briefly leave the area, and then return with Mieses and Reyes–Guerrero in a Ford minivan. Mieses was driving, Reyes–Guerrero was in the front passenger seat, and Rubis was sitting in the back. Mieses dropped Rubis off near where Torres, equipped with a small audio recorder, was waiting, and then drove on a short distance before parking the van. When Torres asked why Rubis was late, Rubis replied that he had arrived earlier, but he needed to wait for “the owners of the money” to come with the cash. After Torres complained that he did not want to meet anyone else, Rubis explained that “the people” would not give the money to him (i.e., Rubis) because they did not trust him. Asked if the owners were there yet, Rubis said they were “in their car,” and he then escorted Torres to the minivan. Torres testified that, as they proceeded to the vehicle, Rubis assured him that these individuals were trustworthy and that he had previously carried out drug transactions with them.

According to Torres, when he and Rubis arrived at the passenger side of the van, Reyes–Guerrero rolled down his window and Rubis briefly introduced the men. Reyes–Guerrero directed them to “get in” the car, but Torres refused because he feared being kidnapped. Torres then asked if they were ready; Mieses replied “yes” and Reyes–Guerrero nodded. Torres asked to see the money, prompting Mieses to reach behind his seat and, with Reyes–Guerrero's help, pull out a shoe box. Reyes–Guerrero passed the box to Torres, who opened it and asked how much money it contained. After responding “$100,000,” Mieses asked about “the merchandise,” and Torres told him that it was in his car. Mieses then asked, “How are we going to do this?” Torres responded that he would return to his car and drive off, and the others should follow. As Torres walked away from the minivan, he passed his hand over his head in a prearranged signal to let Cruz know that he had seen the money and the deal was underway.

Significantly, although the conversation between Torres and Rubis in the parking lot was recorded by the device Torres carried, the exchange among the men at the minivan could not be heard on the tape. Cruz attributed the glitch to background traffic noise at that location, and Torres testified that a gap is not unusual when he carries a recording device. Cruz and the other Task Force members were too far away from the minivan to hear the men talking, and the jury thus heard only Torres's account of what was said there. ⁷

After Torres signaled Cruz, Mieses and Reyes–Guerrero were quickly arrested, and Rubis, who had tried to flee, was apprehended several blocks away. A blue Reebok shoe box containing $100,000 was recovered from the van, and a subsequent inspection of the vehicle revealed a hidden compartment beneath the rear floor. Rubis indicated a willingness to cooperate with law enforcement authorities, and he was interviewed at the DEA offices by Cruz and another Task Force agent. Cruz testified that, after the interview, the targets of his investigation changed, and he reported that Reyes–Guerrero and Mieses were immediately processed and detained. Rubis, Reyes–Guerrero, and Mieses were all charged with a single count of conspiracy to possess five or more kilograms of cocaine with intent to distribute the drugs. See 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A).

B. Procedural Background

During appellants' five-day trial in February 2009, the government presented the details of the reverse sting largely through the testimony of Cruz and Torres. The jury also heard the audio recordings of the preparatory telephone calls involving Rubis, Torres, and Custodio and saw the videotapes of the sham cocaine display and the attempted transaction. Despite defendants' objections, the court allowed the prosecutor to ask Cruz what role defendants played within the drug trafficking organization. Cruz identified Mieses as “one of the buyers,” and Reyes–Guerrero as “the other buyer.” Cruz also described them as the “owners of the money.” Mieses and Reyes–Guerrero defended by arguing “mere presence,” attempting to persuade the jury that they were merely bystanders to Rubis's drug deal.⁸ The strategy was unsuccessful, and both men were found guilty.

In post-trial motions for judgments of acquittal, appellants cha...