708 F.3d 310 (1st Cir. 2013), 11-2200, United States v. Rios-Ortiz

Docket Nº:11-2200.
Citation:708 F.3d 310
Opinion Judge:DiCLERICO, District Judge.
Party Name:UNITED STATES of America, Appellee, v. Juan R
Attorney:Mark E. Howard, with whom Howard & Ruoff, PLLC, was on brief, for appellant. Justin Reid Martin, Assistant United States Attorney, with whom Rosa Emilia Rodr
Judge Panel:Before LYNCH, Chief Judge, TORRUELLA, Circuit Judge, and DiCLERICO, [*] District Judge.
Case Date:February 27, 2013
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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708 F.3d 310 (1st Cir. 2013)

UNITED STATES of America, Appellee,

v.

Juan RÍOS-ORTIZ, Defendant, Appellant.

No. 11-2200.

United States Court of Appeals, First Circuit.

February 27, 2013

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[Copyrighted Material Omitted]

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Mark E. Howard, with whom Howard & Ruoff, PLLC, was on brief, for appellant.

Justin Reid Martin, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, were on brief, for appellee.

Before LYNCH, Chief Judge, TORRUELLA, Circuit Judge, and DiCLERICO, [*] District Judge.

DiCLERICO, District Judge.

Appellant Juan Ríos-Ortiz (" Ríos" ) was convicted after a jury trial of conspiracy to possess with intent to distribute controlled substances (Count One), distribution of a controlled substance (Count Six), and possessing and providing contraband to a prison (Count Seven). He was sentenced to a term of imprisonment of seventy-eight months.

Ríos appeals his conviction on Count One, arguing that the evidence was insufficient to support a conviction as to the charged conspiracy. Specifically, Ríos argues that the evidence was insufficient to establish a single conspiracy beginning on or about December 2009 and continuing until on or about February 2, 2010.

For the reasons that follow, we affirm the judgment of the district court.

I.

The facts are recited in the light most favorable to the verdict being appealed. United States v. Poulin, 631 F.3d 17, 18 (1st Cir.2011). As of December 2009, Ríos was employed as a forklift operator at Carribean Produce (" CP" ), a company that distributes fruits, vegetables, and eggs to, among other customers, the Metropolitan Detention Center Guaynabo (" MDC" ) in San Juan, Puerto Rico. Typically, a customer

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would place an order with someone in CP's client service department. The employee who took the customer's order would create a " picking list," which is given to a dispatcher. The dispatcher would select the boxes of products ordered by a customer from various coolers within CP's warehouse, put the boxes on pallets, and wrap the boxes with tape. Another employee would then compare the products on the pallets with the picking list and, if the selected items matched the picking list, a forklift operator would load the pallets onto a delivery truck for shipment to the customer. Ríos, like other CP forklift operators, sometimes acted as a dispatcher for an order.

MDC orders were picked up from CP by Jesús Piñero, an independent driver who made deliveries from CP to MDC on a weekly basis. All food deliveries to MDC were received at the facility's warehouse by the foods service warehouse supervisor. The supervisor inspected the delivery to ensure that none of the food items were damaged or spoiled. An inmate forklift operator would then unload and transfer the delivery to the rear gate of the facility. There, an officer would x-ray a part of the shipment, as determined on a shipment-by-shipment basis at the officer's discretion, to screen for contraband or damage. Once the goods passed through the screening process, they would be brought to the food service area to be unloaded and stocked inside the facility's walk-in coolers.

On December 29, 2009, CP prepared an order for MDC (" December 29th order" ). Piñero delivered the order to MDC and 10% of the shipment was x-rayed. No contraband or damage was found at that time. The order was then unloaded and stocked in MDC's coolers.

The following day, Norman Vélez, a cook supervisor at MDC whose duties included receiving and storing food items, was working in the food service department. As Vélez approached cooler number five, which held vegetables, he saw the inmate who had been cleaning the cooler attempt to close the door quickly. Vélez thought that the inmate's movement was suspicious and held the cooler door open. Vélez looked inside and saw another inmate, who was not authorized to be in that area, searching one of the boxes of produce. Vélez removed the inmate from the cooler, locked it, and called for backup.

Vélez and José Rosa, a special investigator supervisor at MDC, searched the cooler. While inspecting CP's delivery from the previous day, Vélez and Rosa found several bags of contraband, wrapped in electrical tape, inside a box of celery. The bags contained eight cell phones, SIM cards, cell phone charger connectors, cigarettes, alcohol, Xanax pills (containing the controlled substance alprazolam), Percocet pills (containing the controlled substance oxycodone), cocaine, heroin, and marijuana. In addition, one of the bags contained a piece of paper with what Rosa described at trial as a " possible nickname" on it.

Carlos Falcón, the distribution manager at CP, was notified about the contraband that had been found in the celery box. Falcón checked CP's surveillance system, which consisted of twenty-seven cameras in the warehouse and a hard disk that records for sixteen days before it is automatically overwritten. Falcón testified that he reviewed the video that showed the preparation of the December 29th order. According to Falcón, Ríos acted as the dispatcher for that order. Falcón testified that Ríos performed his dispatch duties normally, except that he reinforced one celery box heavily with tape.1

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After MDC discovered the contraband in the December 29th order, CP began sealing the door on Piñero's truck after loading for all future deliveries to ensure that he would not be a suspect if contraband were found again. In addition, CP also began requiring all dispatchers to fill out a document called a " tablilla," which contained the details of the order. 2

On February 2, 2010, Piñero delivered another order from CP to MDC (" February 2nd order" ). At MDC, the seal on Piñero's truck was broken, and the delivery was unloaded. While being unloaded, a box containing eggs began to break open from the bottom. The box was immediately placed on the x-ray machine, which showed that the box contained contraband. FBI Agent Dave Becerra, who was at MDC conducting interviews regarding the December 29th order, took the box to his office.

The box of eggs contained several bags of contraband wrapped in electrical tape as were the bags of contraband found in the December 29th order. The contraband included nine cell phones, a large quantity of cigarettes, and over one thousand pills containing either alprazolam or oxycodone. Becerra removed the tape from the bags of contraband and sent it to the FBI lab in Quantico, Virginia for fingerprint analysis. The FBI found two latent fingerprints, one of which belonged to Ríos. Ríos's fingerprint was found on the adhesive side of the tape.

Upon learning of the contraband in the February 2nd order, Falcón again consulted CP's surveillance system. As Falcón testified at trial, the video showed Ríos working as a dispatcher and performing his duties abnormally for that order.3 For example, Ríos stacked the egg boxes too high, removed a tray of eggs from one of the boxes and took it to the corner of the room, and took longer than normal to prepare the order, none of which is standard procedure for a dispatcher. Unlike the video of the December 29th order, the video of the February 2nd order had not been overwritten, and it was shown to the jury at trial.

At the close of the government's case, Ríos moved for a judgment of acquittal as to all counts under Fed.R.Crim.P. 29.4 The court reserved its ruling on the motion, and Ríos rested without testifying or presenting any witnesses.

The jury convicted Ríos of Count One (conspiracy), Count Six (distribution of a controlled substance— oxycodone), and Count Seven (providing contraband to a prison). Counts Six and Seven related to the February 2nd order. The jury acquitted Ríos of Counts Two, Three, Four, and Five, all of which related to the December 29th order.

II.

On appeal, Ríos raises several challenges to his conspiracy conviction. He contends that the district court erred in denying his Rule 29 motion as to his conspiracy

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conviction because there was no evidence of a conspiratorial agreement; that his conviction for conspiracy and his acquittal on certain underlying substantive offenses constitute impermissible inconsistent verdicts; and that although the government charged one overarching conspiracy, at best it proved multiple conspiracies, representing a prejudicial variance. All of Ríos's challenges are based on the contention that the evidence was insufficient to support a conviction on Count One for a conspiracy beginning on or about December 2009 and continuing to on or about February 2, 2010.

We review Ríos's sufficiency of the evidence claim de novo, considering the evidence in the light most favorable to the verdict. United States v. Green, 698 F.3d 48, 56 (1st Cir.2012). " A reversal is warranted only where no rational factfinder could have concluded that the evidence presented at trial, together with all reasonable inferences, established each element of the crime beyond a reasonable doubt." United States v. Symonevich, 688 F.3d 12, 23 (1st Cir.2012).

A. Existence of a Conspiratorial Agreement

Ríos argues that the trial court erred in denying his Rule 29 motion because the evidence adduced at trial was insufficient to support the existence of an agreement to possess and distribute controlled substances. Specifically, he points to the lack of evidence concerning any interactions or communications between Ríos and another co-conspirator prior to either the December 29th order or the February 2nd order.5 He argues that there was no evidence of knowledge and coordination of efforts and therefore, a jury could not have found beyond a reasonable doubt that he participated in a conspiracy.

" ‘ To prove conspiracy in a [narcotics] case, the government must prove beyond a reasonable doubt that an agreement existed...

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