799 F.3d 134 (1st Cir. 2015), 11-2328, United States v. Lanza-Vazquez

Docket Nº:11-2328, 12-1442, 12-2412
Citation:799 F.3d 134
Opinion Judge:HOWARD, Chief Judge.
Party Name:UNITED STATES OF AMERICA, Appellee, v. RAM
Attorney:David Shaughnessy for appellant Rafael Gal
Judge Panel:Before Howard, Chief Judge, Torruella and Kayatta, Circuit Judges.
Case Date:August 27, 2015
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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799 F.3d 134 (1st Cir. 2015)

UNITED STATES OF AMERICA, Appellee,

v.

RAMÓ N LANZA-VÁ ZQUEZ, a/k/a Ramoncito; LUIS R. NIEVES-CANALES, a/k/a Sito; RAFAEL GALÁ N-OLAVARRÍA, a/k/a Galá n, Defendants, Appellants

Nos. 11-2328, 12-1442, 12-2412

United States Court of Appeals, First Circuit

August 27, 2015

As Amended September 1, 2015.

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[Copyrighted Material Omitted]

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APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Aida M. Delgado-Colón, U.S. District Judge.

David Shaughnessy for appellant Rafael Galá n-Olavarrí a.

Lydia Lizarrí bar-Masini for appellant Luis Nieves-Canales.

Inga L. Parsons for appellant Ramón Lanza-Vá zquez.

Olga B. Castellón-Miranda, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Juan Carlos Reyes-Ramos, Assistant United States Attorney, were on brief, for appellee.

Before Howard, Chief Judge, Torruella and Kayatta, Circuit Judges.

OPINION

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HOWARD, Chief Judge.

Ramón Lanza-Vá zquez (" Lanza" ), Luis R. Nieves-Canales (" Nieves" ), and Rafael Galá n-Olavarrí a (" Galá n" ), (collectively, " the defendants" ), appeal convictions and sentences resulting from their participation

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in a drug distribution conspiracy. They lodge a litany of challenges covering nearly every aspect of the proceedings below. Finding no reversible error, we affirm.

I.

We begin by briefly sketching the facts most relevant to our analysis.1

A. The Drug-Trafficking Operation

This case arises from a drug trafficking operation at the Jardines de Sellé s Housing Project in San Juan, Puerto Rico (" Sellé s" ). On January 26, 2000, the leader of that operation, Luis Daniel Rivera, was murdered. This created a leadership vacuum, which Alberto Carillo-Morales (" Alfalfa" ) swiftly moved to fill. Within two days, he had succeeded in taking control.

Upon taking power, Alfalfa adopted an unforgiving and oppressive management style. He held regular meetings with his closest co-conspirators to discuss the operation and to plot strategy. If an individual sold drugs at Sellé s, he or she was doing so on Alfalfa's behalf or with his blessing. Indeed, the jury could have concluded that Alfalfa would order his gang to kill or harm any individual who either disobeyed that rule or who merely expressed disagreement with his decisions.

As for the drug business itself, Alfalfa implemented a number of changes. The jury heard evidence that Alfalfa instituted a hierarchical system: drug " owners" were responsible for obtaining drugs (and benefitted most from the sales); " runners" transported the drugs and money from owner to seller; and " sellers" positioned themselves at drug points to distribute the goods. " Enforcers" were also tasked with protecting the drug points at Sellé s, which operated 24 hours a day. Relatedly, Alfalfa expanded the number of drug points at Sellé s, and his subordinates sold a variety of drugs including crack cocaine, powder cocaine, heroin, and marijuana. The bags containing his drugs typically included a sticker bearing the face of Osama Bin Laden.

After tightening his grip on power at home, Alfalfa turned outwards. Around 2004, Alfalfa ordered his men, armed with guns, to take over the operation at the El Prado housing unit. They successfully did so. Around the same time, he took over Las Flores, a housing project in nearby Aibonito. He also briefly took control of the Liborio Ortiz Housing Project. These territorial grabs consistently ignited shootings and fights among the different drug-trade organizations.

B. The Defendants

The three defendants in this case each joined Alfalfa's operation at different times and in distinct ways. For instance, the jury could have found that Defendant Nieves was one of Alfalfa's initial co-conspirators. From the beginning, he was a drug owner; he specifically owned the " $12 bag" of marijuana. In addition to selling that product at Sellé s, he served as an enforcer and protector at drug points. Although he lawfully possessed a number of guns, he also carried several illegal firearms. Moreover, he participated in shootings

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with rival gangs when it suited his boss's interests.

The evidence likewise supported the finding that Defendant Galá n joined Alfalfa's operation as a seller at Sellé s. Early on, he expressed an interest in rising through the ranks of the organization, as he wanted to become a drug owner himself. Alfalfa's expansion into El Prado provided Galá n with that opportunity. He became an owner of a brand of marijuana at El Prado and enlisted José Serrano-Ayuso (" Serrano" ) to serve as his runner. The two met nightly at Galá n's apartment, where Serrano would deliver money and the men would count it together.

Finally, evidence established that Lanza joined Alfalfa's group after leaving a rival organization. He served as a seller, enforcer, and (occasionally) as a runner. As time progressed, his role became more substantial; for instance, he was invited to join Alfalfa's weekly meetings. He also became owner of the " green-capped" crack at El Prado. As a result, Lanza was spotted conducting business at El Prado on a nearly nightly basis.

C. The Investigation and Indictment

These illicit activities did not go unnoticed, and an investigation into Alfalfa's operation by a San Juan Metro Strike Force accelerated in May and June of 2007. As part of that investigation, agent Jorge L. Cedeño surveilled the El Prado apartments. He positioned himself in a parking lot facing Galá n's apartment building. According to Cedeño's affidavit, he quickly became familiar with the building's layout, and knew that the second floor had two apartments: one to the left and one to the right (Galá n's purported home). From his usual position, he said, he could not see the actual door to the apartment on the right, but he could see the door to the apartment on the left and he could view the stairs leading to the third floor (along with the exit on the third floor).

On at least two occasions between May 30 and June 6, Cedeño purportedly saw Galá n walking up to the second floor, turning right, and disappearing for a period of time. Cedeño concluded (since he would have seen Galá n go anywhere else) that Galá n must have been entering the apartment. On a third occasion, according to the agent, he also saw an individual with a black pistol take the same path. Agent Cedeño stated that he also witnessed Galá n with certain contraband, including: containers ordinarily used to hold drugs; bags with what appeared to be cocaine inside; and a police radio scanner. Finally, Cedeño claimed that he saw Galá n sitting in the stairwell manipulating product.

As noted, Cedeño submitted an affidavit detailing these (and other) observations, and a judge of the San Juan Municipal Court approved a search warrant for Galá n's apartment. During the search, the police recovered: a police radio scanner that was turned on; a firearm cleaner; a loaded AK-47 with two magazines; $1,064 in cash; two social security cards; pressure-sealed baggies; and stickers/seals depicting Osama Bin Laden's face. The officer also found registrations for three cars and a driver's license. One of the registrations matched a vehicle seen in video surveillance at a Sellé s drug point.

At the conclusion of the investigation, a federal grand jury indicted 121 defendants, including the three in this case. It charged: (count I) conspiracy to possess with intent to distribute drugs; (count II) aiding and abetting possession with intent to distribute heroin; (count III) aiding and abetting possession with intent to distribute crack cocaine; (count IV) aiding and abetting possession with intent to distribute cocaine; (count V) aiding and abetting possession with intent to distribute marijuana;

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and (count VI) conspiracy to possess a firearm during and in relation to drug trafficking. Galá n was also charged as being a felon in possession of a firearm, (Count VII). Galá n, Lanza, and Nieves were jointly tried.

D. The Trial, Verdict, and Sentence

At trial, the government relied on physical evidence (such as the items found in Galá n's apartment), the testimony of law enforcement officers (such as Agent Cedeño) and, perhaps most importantly, the testimony of several co-conspirators. Three were prominent.

The first was Wilberto Pizarro-Santiago (" Pizarro" ) who was a drug seller at Sellé s from 1998 to 2005. He subsequently worked for a rival gang. At trial, he testified extensively about Alfalfa's operation and made clear that if an individual sold drugs at Sellé s it was on Alfalfa's behalf. He discussed the organization and provided details about the murder of " Geno" -- an associate who had expressed disagreement with Alfalfa's decisions. Pizarro specifically identified Nieves as the owner of the " $12 bag" of marijuana and referenced specific instances in which he saw Nieves carrying firearms. Indeed, he alleged that Nieves was " always armed." In addition to identifying Nieves, Pizzaro also testified that Lanza attended Alfalfa's inner-circle meetings and was an enforcer within the organization.

The second co-conspirator, Serrano, worked at El Prado as a runner and enforcer for Galá n. At trial, he identified Lanza as part of the operation, described Alfalfa's takeover of El Prado, and explained how he came to work directly for Galá n. Since he was Galá n's runner, Serrano was able to provide substantial detail on their interactions. Serrano also admitted that he was generally armed to protect Galá n.

Finally, José Dí az-Martí nez testified about his experience working for Alfalfa at both Sellé s and El Prado. He described the general framework of the operation and Alfalfa's style of management. He, too, specifically identified Nieves and Galá...

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