691 F.3d 1 (1st Cir. 2012), 09-2094, United States v. Cortes-Caban

Docket Nº:09-2094, 09-2211, 09-2285, 09-2376, 09-2461.
Citation:691 F.3d 1
Opinion Judge:TORRUELLA, Circuit Judge,
Party Name:UNITED STATES of America, Appellee, v. V
Attorney:Ram
Judge Panel:Before LYNCH, Chief Judge, TORRUELLA and STAHL, Circuit Judges. TORRUELLA, Circuit Judge, dissenting
Case Date:August 10, 2012
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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691 F.3d 1 (1st Cir. 2012)

UNITED STATES of America, Appellee,

v.

Víctor Gerardo Cortés-CABÁN, Pascual Santiago-Méndez, Luis Enrique Ruperto-Torres, Anthony Domínguez-Colón, and Víctor Gerardo Cortés-Cabán, Defendants, Appellants.

Nos. 09-2094, 09-2211, 09-2285, 09-2376, 09-2461.

United States Court of Appeals, First Circuit.

August 10, 2012

Heard Nov. 8, 2011.

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Ramón García-García, for appellant Cortés-Cabán.

Ernesto Hernández-Milán, for appellant Santiago-Méndez.

Nicolás Nogueras-Cartagena, for appellant Ruperto-Torres.

Lydia Lizarríbar-Masini, for appellant Domínguez-Colón.

Scott H. Anderson, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Velez, United States Attorney, Julia M. Meconiates, Assistant United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, were on brief for appellee.

Before LYNCH, Chief Judge, TORRUELLA and STAHL, Circuit Judges.

TORRUELLA, Circuit Judge, opinion of the court except as to Part II.B, Part II.C.1, and Part II.C.2; Dissenting in Part II.B, Part II.C.1, and Part II.C.2.1

" Quis custodiet ipsos custodes?" 2

We are presented with highly troubling instances of abuses of police power, including the disturbing practice, conducted by certain members of the Mayagüez Drugs and Narcotics Division of the Puerto Rico Police Department, of planting evidence and conducting illegal searches and seizures in violation of the Fourth Amendment.

Defendants-Appellants Pascual Santiago-Méndez (" Santiago" ), Anthony Domínguez-Colón (" Domínguez" ), Victor Cortés-Caban (" Cortés" ), and Luis Enrique Ruperto-Torres (" Ruperto" ), all police officers in the Puerto Rico Police Department, were charged in a two-count indictment for (1) conspiring to injure, oppress, threaten, and intimidate persons in the town of Mayagüez in the free exercise or enjoyment of their constitutional rights in violation of 18 U.S.C. § 241, and (2) conspiring to possess with intent to distribute controlled substances in violation of 21 U.S.C. §§ 841(a)(1) & 846. 3 Following their jury trial, all appellants were convicted of count one, with Santiago, Cortés, and Domínguez also being convicted of count two.

All appellants challenge their convictions, asserting that the government failed

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to present sufficient evidence showing a violation of either 18 U.S.C. § 241 or 21 U.S.C. §§ 841(a)(1) & 846.4 Additionally, Santiago, Domínguez, and Ruperto raise distinct challenges to their sentences.

In brief, we affirm all appellants' convictions as to count one. As to the convictions under count two for alleged conspiracy to possess with intent to distribute controlled substances, we are presented with a matter of first impression. And it is here that I part company with my colleagues, who affirm the convictions of Santiago, Cortés, and Domínguez as to count two and conclude that the government's evidence satisfies the legal requisites for a conviction of conspiracy to possess with intent to distribute controlled substances under 21 U.S.C. §§ 841(a)(1) and 846. I respectfully dissent from my colleagues' holding in this respect for the reasons set forth infra.

The evidence supporting the convictions as to both count one (conspiracy to violate civil rights) and count two (conspiracy to possess controlled substances with intent to distribute) is substantially the same and is sufficient to permit the jury to conclude beyond a reasonable doubt the following facts.

I. The Facts

A. The Black Box and the Nefarious Use of its Contents by Certain Police Officers

The underlying criminal acts at issue in this case may be traced back— like so many Pandora-released evils— to a box.

Appellants, members of the Puerto Rico Police Department's Mayagüez Drugs and Narcotics Division (the " Division" ), were convicted of fabricating criminal cases against citizens through the planting of controlled substances, leading to such citizens' wrongful arrests based on the fabricated evidence. Several appellants asserted that this was done to meet a department-required weekly quota of arrests.5

From 2005 to 2007, Lieutenant Dennis Muñiz (" Muñiz" ) served as the director of the Division. He participated and assisted in overseeing this fabrication practice. At trial, Muñiz, testifying as a government witness, stated that the drugs used by the officers for purposes of fabrication typically were stored in a metal black box that generally was under the care and custody of Santiago, a supervisor in the Division. It was Santiago's practice to store the box in a file cabinet in his office. The box contained a mélange of contraband, including crack, cocaine, heroin, aluminum strips, drug paraphernalia, and ammunition rounds. Such contraband was given to agents prior to their execution of a search warrant or other intervention to ensure that an arrest would ensue. Testimony at trial confirmed that Muñiz and Santiago specifically instructed officers to plant drugs if a search or intervention was not " positive," i.e., did not produce valid

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grounds for arrest.6

The following acts of fabrication were established beyond a reasonable doubt. 7

1. The Stolen Car Incident

Muñiz testified that sometime during his tenure as director of the Division, his daughter called him to report that her car had been stolen. Muñiz stated that he immediately contacted Santiago to help investigate the matter and locate the vehicle while he drove to meet his daughter. Meanwhile, Santiago recruited agents Luis Vélez (" Vélez" ) and Domínguez to assist. Soon after, Santiago called Muñiz to inform him that they not only had located his daughter's car, but also had arrested three minors whom they were taking to the Division in Mayagüez. Muñiz quickly altered his course to drive to the Division, confirm ownership of the vehicle, and observe the detained youths. On arriving at the Division, Muñiz recognized his daughter's car. When he spoke with Santiago, Santiago informed him that he had fabricated a case against the minors, charging them with possession of controlled substances even though no drugs had been found on them at the time of arrest or processing. The arrested minors were processed for possession of controlled substances and robbery of the vehicle, ultimately pleading guilty to both counts. Of course, only the car robbery charge was properly supported by legal evidence.

2. The Search of " El Monstruo's" Home

Around the end of 2006 and early 2007, officers conducted a search of the residence of José " El Monstruo." 8 Before leaving the Division to assist with the search, Santiago handed Agent Vélez a small bag containing marijuana and cocaine. Santiago, speaking on behalf of himself and Muñiz, instructed Vélez to " wait for their call" before taking any action, and advised Vélez that the search had to be " positive." Vélez, also testifying for the government, indicated that he only abided by the second part of the instruction, taking it upon himself to plant the drugs in a closet next to the bathroom upon entering the premises without waiting for Santiago or Muñiz's go-ahead. Vélez also testified that he received numerous calls from both Santiago and Muñiz during the search, in which they repeatedly stressed that the search had to be " positive." During one such call, Vélez stated that he told them " the job had been done" and to " take it easy." Two individuals present at the residence were arrested as a result of the search and charged with illegal possession of controlled substances.

3. The Monte Isleño Search

In early 2007, Vélez was sent out to conduct another search and seizure operation, this time in the Monte Isleño housing project, the situs of an ongoing drug investigation with various search and seizure orders. Santiago again gave Vélez a bag of contraband, this time containing crack,

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and instructed him to make sure the search turned out positive. On arriving at the premises, Vélez observed two detained individuals and proceeded to the interior of the residence; he planted the drugs in a bureau drawer located on the second floor and exited the home. Officers subsequently arrested the detained individuals based on the planted evidence.

4. The Man Who Swallowed Marijuana

Also in early 2007, agents Santiago, Vélez, and Domínguez were conducting a " preventive round" in an unmarked civilian vehicle in the area of Quinto Centenario under Muñiz's supervision.9 While patrolling, the officers observed a group of people gathering under a tree. When the group spotted the police officers' presence in the vehicle, one individual fled, which prompted Domínguez and Vélez to immediately exit the car and give chase. The chase was short-lived, as the individual tripped on his sandals and fell. The officers detained the individual and proceeded to search and question him. The search revealed no contraband on his person, but upon questioning by Vélez the suspect admitted to having swallowed marijuana before the police caught up to him. Vélez testified that he noticed the smell of marijuana on the man's breath. The officers proceeded to arrest the subject and to take him to the police station for processing where he was charged with possession of cocaine, despite the fact that cocaine was not found in his possession.

5. The " Planting" at the Puchi Residence

In approximately February or March 2007, agents in the Division prepared for a search and seizure operation targeting a known drug leader's home, Omayra Segarra, also known as "...

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