United States v. Delgado-Marrero

• Decision Date: 11 February 2014
• Docket Number: 11–1742.,Nos. 11–1660,s. 11–1660
• Parties: UNITED STATES of America, Appellee, v. Raquel DELGADO–MARRERO, Ángel L. Rivera–Claudio, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

744 F.3d 167

UNITED STATES of America, Appellee,

v.Raquel DELGADO–MARRERO, Ángel L. Rivera–Claudio, Defendants, Appellees.

Nos. 11–1660, 11–1742.

United States Court of Appeals, First Circuit.

Feb. 11, 2014.

Rafael F. Castro–Lang, for appellant Delgado.

Linda Backiel, for appellant Rivera.

Jacqueline D. Novas–Debién, 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 TORRUELLA, HOWARD and THOMPSON, Circuit Judges.

TORRUELLA, Circuit Judge.

Former San Juan Municipal Police Officers Raquel Delgado–Marrero (“Delgado”) and Ángel Rivera–Claudio (“Rivera”) were convicted by a jury on drug and gun charges arising from an FBI reverse sting operation called “Operation Guard Shack.” They each received a fifteen-year sentence. On appeal, Delgado and Rivera raise multiple challenges, claiming both trial and sentencing errors by the district court. They each seek either a new trial or resentencing.

Our discussion begins with Delgado's contention that the district court committed reversible error by excluding the testimony of a defense witness. Because we agree with Delgado that the district court erred on this front, and that a new trial is needed to mend the error, we do not address any of her other appellate challenges.

With respect to Rivera, we agree that his sentence cannot withstand the Supreme Court's decision in Alleyne v. United States, ––– U.S. ––––, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). Applying Alleyne retroactively, we find that the district court plainly erred in articulating the jury instructions imparted in connection with a post-verdict special jury form. We further find that Rivera's other claims of error ultimately fail.

The necessary details follow, with a recitation of “the facts in the light most favorable to the government.” United States v. Flores–Rivera, 56 F.3d 319, 322 (1st Cir.1995).

I. Background

A. Operation Guard Shack

The FBI launched “Operation Guard Shack” as part of its efforts to combat police corruption throughout Puerto Rico.¹ As relevant here, the FBI hired a Puerto Rico Police officer (“Officer I”) to pose undercover as a corrupt policeman with close ties to a mid-to-high-level local drug dealer. ² Officer I's main responsibility was to recruit fellow police officers willing to provide armed security during a staged “multi-kilo” drug transaction. The FBI also hired another undercover Puerto Rico Police officer, “Officer II,” to play the role of the dealer during the staged drug transaction.

Delgado and Rivera were working partners stationed at the Antillas Police Precinct in San Juan, Puerto Rico. Delgado, a divorced mother of two, had no prior criminal record. She began her career as a municipal police officer in her late twenties. Before her arrest in 2010, Delgado had enjoyed five years of experience on the force, had never been the subject of an administrative complaint, and had received the award of “Municipal Police Woman of 2009.” For his part, Rivera, who was twenty-four years old at the time of his arrest, enjoyed four years of experience in the municipal police force and, like Delgado, had untarnished criminal and administrative records.

Officer I reached out to Delgado sometime in the middle of 2009 as part of his undercover role as a corrupt policeman. Officer I knew Delgado from childhood. They grew up near each other, were middle-school classmates, and had once shared a close-knit circle of friends. After middle school, however, Officer I and Delgado went their separate ways and eventually lost touch with each other.

More than a decade later, Officer I identified Delgado as a possible target of Operation Guard Shack during a conversation with her ex-husband, who had asked to meet with him for an unrelated personal matter.³ During the meeting, when Officer I asked about Delgado, her ex-husband told him that they were no longer together and that Delgado had several part-time jobs providing nighttime door security at veterinarian clinics as well as some pubs. Delgado's ex-husband also shared with Officer I his distaste for Delgado's part-time jobs, stating that he was concerned that the jobs were in unsafe locations. According to his testimony at trial, Officer I understood the ex-husband's concerns to mean that Delgado was part-timing in places where drug-trafficking activities occurred.

Officer I asked for Delgado's phone number during a second meeting with her ex-husband. Soon thereafter, he called her to see whether she was in fact doing part-time jobs at questionable locations. Although the FBI had instructed that phone conversations with Operation Guard Shack targets be recorded,⁴ Officer I testified at trial that he was unable to record the first call with Delgado because he made it while on duty, with fellow officers nearby. Another unrecorded phone call took place shortly thereafter; Officer I testified that he could not record that conversation because some of his family members were nearby when he placed the call.

Officer I recorded a phone conversation with Delgado for the first time on July 20, 2009. The transcript of that conversation reflects that Officer I had previously invited Delgado, and she had agreed, to participate in a drug transaction, in which Delgado and an unnamed fellow officer ⁵ would provide security in exchange for $2,000 each.⁶

Officer I recorded a second call with Delgado on July 23, 2009. This time, as depicted in the call's transcript, Officer I explained to Delgado that the transaction would take place inside a house; that Delgado and the fellow officer's job was simply to frisk two people that would come to pick up the “kilos”; that the job would begin at 8:00 p.m. and would last thirty minutes to an hour; and that Officer I would personally direct Delgado on how to get to the house.

B. The Sham Transaction

The sham drug transaction took place the next day. With the assistance of Officer I, who provided final minute-by-minute directions by phone, Delgado and Rivera arrived at the apartment in the municipality of Dorado, Puerto Rico, where the “transaction” was to take place. Officer I and Officer II waited in the apartment, where the FBI had placed hidden cameras and microphones in order to record the events.⁷ Also in the apartment was a duffle bag containing the purported drugs underlying the sham transaction—seven packages, or “bricks,” that the FBI had prepared to resemble one-kilogram blocks of actual cocaine.

The video recording of the “transaction” begins when Delgado and Rivera step into the apartment. Officer I, Delgado, and Rivera enter in full view of a hidden camera that was recording the entry door and foyer area of the apartment. To the left of the entry door is a kitchen, and Officer I offers drinks to Delgado and Rivera. Delgado takes a soda and Rivera a beer. Officer I then ushers them into a living room, where Officer II, in his role as a drug dealer, sits in the middle of a large L-shaped sectional sofa.

Another hidden camera captures the moment when Officer I, Delgado, and Rivera come into the living room. Officer I and Rivera sit on the sofa where Officer II awaits seated. Delgado asks where the bathroom is and steps out of the camera's range.

While Delgado is in the bathroom, Officer I and Officer II engage Rivera in friendly banter. Among other things, they ask Rivera about the type of gun given to the municipal police. Rivera states that he dislikes the old, secondhand gun he was provided, and, upon further probing from Officer I, retrieves the gun from underneath his jacket, waves it in the air so that the others can see it, and tucks it back in. Officer I and Officer II also show Rivera the gun each is carrying. When Delgado returns from the bathroom, the gun-related discussion continues, and she also shows her official gun, which she was carrying inside her waistband, hidden underneath her shirt. Delgado then sits down on the sofa between Rivera and Officer II.

The friendly banter continues for half an hour, including remarks about Delgado's birthday party, which is happening later that night. The conversation is interrupted when the purported drug buyer knocks at the door. ⁸ Immediately, Officer II instructs Rivera to open the door and to make sure that nobody enters the apartment armed. Rivera picks up a set of keys from the coffee table in front of the sofa and leaves to open the door. Officer I gets up and signals Delgado to follow him in order to assist Rivera. She gets up and follows Officer I out of the living room.

The hidden camera recording the area of the entry door captures Rivera approaching. He opens the door and orders the purported drug buyer to stand still and proceeds to frisk him.⁹ Finding no weapons on the newcomer, Rivera walks him to the living room. There, the purported buyer greets Officer II and sits down on the sofa, and Officer I and Rivera return to their seats. Delgado remains standing and goes in and out of the camera's frame, but her voice can sometimes be heard as she participates in the conversation.

The friendly banter continues exactly where it left off. It is interrupted approximately fifteen minutes later, when the purported buyer tells Officer II to bring him the “stuff” because he is leaving. Officer II then casually tells Rivera to call an elevator that is apparently nearby, while at the same time signaling to him the direction of the elevator he is referring to. Rivera gets up from the sofa and walks away from the hidden camera's view. Officer II then tells Rivera, who is still out of view but apparently in the living room, to wait for the elevator doors to open and to hand what is inside the elevator to the buyer. A few seconds later, Rivera comes back carrying a duffle bag. He hands it to the buyer, and sits down on the sofa next to him.

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