751 F.3d 1 (1st Cir. 2014), 11-2347, United States v. Ayala-Vazquez

Docket Nº:11-2347, 12-1540
Citation:751 F.3d 1
Opinion Judge:THOMPSON, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Appellee, v. ANGEL AYALA-VAZQUEZ, Defendant, Appellant. UNITED STATES OF AMERICA, Appellee, v. LUIS XADIEL CRUZ-VAZQUEZ, Defendant, Appellant
Attorney:Nathan P. Diamond for appellant Angel Ayala-Vazquez. Rafael F. Castro Lang for appellant Luis Xadiel Cruz-Vazquez. Timothy R. Henwood, Assistant United States Attorney, with whom Nelson P
Judge Panel:Before Thompson, Baldock,[*] and Lipez, Circuit Judges.
Case Date:May 02, 2014
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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751 F.3d 1 (1st Cir. 2014)



ANGEL AYALA-VAZQUEZ, Defendant, Appellant.



LUIS XADIEL CRUZ-VAZQUEZ, Defendant, Appellant

Nos. 11-2347, 12-1540

United States Court of Appeals, First Circuit

May 2, 2014

Petition for certiorari filed at, 08/12/2014

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Nathan P. Diamond for appellant Angel Ayala-Vazquez.

Rafael F. Castro Lang for appellant Luis Xadiel Cruz-Vazquez.

Timothy R. Henwood, Assistant United States Attorney, with whom Nelson Pérez-Sosa, Assistant United States Attorney, and Thomas F. Klumper, Assistant United States Attorney, were on brief, for appellee.

Before Thompson, Baldock,[*] and Lipez, Circuit Judges.


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THOMPSON, Circuit Judge.

Blood is often thicker than water. Brothers Angel Ayala-Vazquez (" Ayala" ) and Luis Xadiel Cruz-Vazquez (" Cruz" ) (collectively, " appellants" ) appeal their convictions on multiple criminal charges related to their involvement in a wide-ranging drug trafficking organization based out of the Jose Celso Barbosa Public Housing Project (" Barbosa" ) and the Sierra Linda Public Housing Project (" Sierra Linda" ) in Bayamon, Puerto Rico. Unlike dozens of others who entered guilty pleas, and some others who testified against them in the hope of lessening their own punishments, Ayala and Cruz hunkered down and stood trial together. They were both convicted, and each received a life sentence.

The two brothers now argue they should be acquitted because the evidence introduced at trial was not sufficient to support the jury verdicts. Failing that, they seek a new trial on the grounds that the trial judge improperly acted as an extra prosecutor and added to the evidence against them through the way in which he questioned several witnesses. Should neither

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of these claims be resolved in his favor, Cruz additionally contests his life sentence on the grounds that he was less culpable than his brother and, therefore, he should not be fated to spend the rest of his life in prison too.

We have carefully considered the extensive trial record and the brothers' legal positions. After doing so, we conclude there is no merit to any of the arguments advanced by the brothers on appeal. Accordingly, we affirm their convictions and Cruz's sentence.


We set forth the basic facts in the light most favorable to the verdict, United States v. Rios-Ortiz, 708 F.3d 310, 312 (1st Cir. 2013), reserving additional details for our discussion of the specific issues raised in this appeal. Brothers Ayala and Cruz were arrested and indicted following a federal investigation into an extensive and long-lived drug trafficking organization (" DTO" ) based out of Barbosa.1 The appellants were indicted together along with sixty-three other individuals alleged to have taken part in the DTO. The Indictment identified each defendant by first name, last name, and, if applicable, nicknames or aliases.2 When it drew up the Indictment, the government assigned each defendant a number from one through sixty-five, with Ayala as number one and Cruz number eight.

The Indictment charged the appellants and other co-conspirators with selling a substantial amount of drugs, including marijuana, cocaine base (" crack" ), cocaine, and heroin at various drug points throughout Barbosa and at other locations. It further contained several counts of conspiracy to commit money laundering through various schemes, including one count alleging that the appellants put up drug money to pay for extravagant annual Christmas parties for Barbosa's residents. The Indictment also set forth forfeiture counts seeking a money judgement of $100,000,000, along with forfeiture of numerous motor vehicles, race cars, watercraft, and parcels of real estate in Puerto Rico and Florida.

The other defendants named in the Indictment--with the exception of a few who could not be located--reached individual plea agreements with the government, and in the end Ayala and Cruz were the only two who stood trial. The evidence at trial outlined in detail each brother's specific role in the DTO. We recount some of the undisputed highlights.

1. Ayala

As befitting his position as the first listed defendant, the government set out to prove that Ayala was the kingpin of the entire DTO. The eleven-count Indictment (ten counts of which were directed against Ayala) charged Ayala and sixty-four others with a panoply of drug crimes, including conspiracy with intent to distribute various controlled substances, conspiracy to import large quantities of cocaine into Puerto Rico, possession with intent to distribute controlled substances (heroin, crack, cocaine, and marijuana) within one thousand feet of a public housing facility,3 and conspiracy

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to commit money laundering. After a lengthy trial, the jury convicted Ayala on the first nine counts. Ayala does not contest the jury's acceptance of the vast majority of the facts testified to at trial. Instead, he argues that his conviction and sentence should be vacated due to a variety of other legal errors, which we will address in time. For now, we summarize the essential facts testified to at trial and to which Ayala does not object on appeal.

Ayala became involved with drug sales at Barbosa more than two decades ago, when he sold heroin, crack, cocaine, and marijuana. At first Ayala sold these drugs along with another man named Steven, but when Steven died in 1995 Ayala took over the DTO himself and became the " boss" or " leader of the drug point owners" at Barbosa. Ayala was " always armed for protection, because of local drug wars." The drug point owners within Barbosa paid rent to Ayala for the privilege of selling drugs there. Only people who Ayala knew or who had positions of responsibility within the DTO were allowed to sell drugs.

Witnesses testified that drug sales occurred at Barbosa twenty-four seven. To improve security, Ayala directed that gates be installed between two buildings in Barbosa.4 The gates, which Ayala paid for, were intended to keep the drug sellers from being identified or apprehended by the police. Two sellers worked at each gate, and drugs purchased there were literally handed to customers through the iron bars. This physical barrier helped shield the sellers from any attempted arrest. Sellers also wore shirts over their faces to conceal their identities from the police.

Also on the security front, Ayala employed lookouts to provide a further level of protection. Lookouts were equipped with radios and were responsible for notifying higher-ups when police officers entered Barbosa or if they noticed anyone suspicious. One witness testified she earned $75 for each shift she worked as a lookout.

The size and scale of the DTO's Barbosa operations can be appreciated from testimony regarding just a few of the drug sales there. According to one of the coconspirators, Jose Arce Baez (number 37 on the Indictment), drugs were available twenty-four hours a day. Baez recalled that on one day in March 2001, 240 grams of crack, 600 baggies of heroin, 10 to 15 packets of marijuana and 250 to 375 baggies of cocaine were sold. A DEA informant, Burke Declet, said he purchased 3 vials of crack, 1 bag of marijuana, and 10 packets of heroin in April of 2008. Police officers also described a February 2009 raid at Barbosa that ended in a search of an apartment where the police discovered and seized a radio used by the drug lookouts, along with 1,000 " decks" of heroin and 400 " decks" of marijuana.5 Chemical analysis determined these materials contained 146 grams of heroin and 428 grams of marijuana. A further search on March 27, 2009, resulted in the seizure of 51 grams of heroin and 300 grams of marijuana. Subsequent police searches led to the seizure of 285 grams of marijuana and 122 grams of heroin on April 7, 2009, 159 grams of cocaine on April 8, 2009, and 177 grams of crack on May 7, 2009.

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Trial testimony further indicated that Ayala's involvement in the drug trade was not confined to sales in Puerto Rico. Indeed, one drug trafficker testified that, between 2005 and 2008, he imported " thousands of kilos of cocaine and a small portion of heroin" from the Dominican Republic for Ayala. Ayala and two other conspirators, he said, went on to ship at least some of those drugs to sellers in New York and other mainland destinations. One example of the scope of drug imports into Puerto Rico is a March 30, 2009, seizure by Puerto Rican police of a flatbed truck that had come in from the Dominican Republic. When they searched the truck, law enforcement agents discovered 182 kilos of cocaine and 12 kilos of heroin. There was also testimony that in 2008, law enforcement agents seized two vessels arriving from the Dominican Republic that contained drugs destined for Ayala's DTO. Police discovered 600 kilos of cocaine and 7 kilos of heroin on the first ship, and 397 kilos of cocaine on the second.

With respect to shipments to the mainland, one drug seller testified that between February and November of 2007, he received in New York as many as 100 kilograms per week from the DTO. Another trafficker testified that between 2000 and 2006 the DTO used commercial airlines to bring " kilos" of cocaine from Puerto Rico to New York and Florida. The amount of drugs brought in varied, but was between 120 and 300 kilos per trip. Trips were made two or three times each week, and the witness testified that in one month " about 5,000 kilos had been sent" to the mainland.

2. Cruz

The Indictment identified Cruz's role in the DTO as that of an " administrator" who " would, among other duties,...

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