United States v. Rodríguez-Milián

Citation820 F.3d 26
Decision Date19 April 2016
Docket NumberNo. 14–1976.,14–1976.
PartiesUNITED STATES of America, Appellee, v. Carlos E. RODRÍGUEZ–MILIÁN, Defendant, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Luis A. Guzmán Dupont, for appellant.

Jenifer Y. Hernández–Vega, Assistant United States Attorney, with whom Rosa Emilia Rodríguez–Vélez, United States Attorney, Nelson Pérez–Sosa, Assistant United States Attorney, Chief, Appellate Division, and Francisco A. Besosa–Martínez, Assistant United States Attorney, were on brief, for appellee.

Before LYNCH, SELYA and LIPEZ, Circuit Judges.

SELYA

, Circuit Judge.

A party who fails to preserve potential claims of error in the trial court usually encounters strong headwinds on appeal.

So it is here. Concluding that the appellant's asseverational array is largely unpreserved and wholly unpersuasive, we affirm his conviction and sentence. We nonetheless remand to allow the district court to consider a sentence reduction under a recent amendment to the sentencing guidelines.

I. BACKGROUND

We recite the background facts “in the light most hospitable to the verdict, consistent with record support.” United States v. Maldonado–García, 446 F.3d 227, 229 (1st Cir.2006)

. Starting in 2005, a drug-trafficking organization headed by the notorious Junior Cápsula smuggled cocaine by sea from the Dominican Republic into Puerto Rico aboard yawls specially retrofitted with secret compartments. After law enforcement personnel seized two of the vessels, the drug ring began to consider alternative modes of transportation (including airplanes).

In June of 2009, defendant-appellant Carlos E. Rodríguez–Milián became involved with a scheme to fly drug shipments from the Dominican Republic to Puerto Rico and to ferry cash on return flights. Shortly after this plot was hatched, the appellant purchased a small aircraft that he thereafter used to transport a leader in the drug ring from Puerto Rico to the Dominican Republic. Later that summer, the appellant and a confederate, Jeffrey Núñez–Jiménez (Núñez), transported roughly $500,000 in illegal drug-sale proceeds from Puerto Rico to the Dominican Republic.

A subsequent flight by the two men in the appellant's recently-purchased airplane took place on August 22, carrying a cargo of no less than 50 kilograms of cocaine. Spotted on radar when it entered Puerto Rican airspace, their airplane aroused suspicion because it failed to communicate with anyone, flew past Borinquen Airport, and descended instead into Arecibo Airport (which was not an authorized port of entry for international air traffic). The airplane landed before any law enforcement personnel arrived to investigate. Two men (later identified as Diego Pérez and Fernando Nieves) approached the aircraft, while a third man, José Marrero–Martell, watched from a nearby automobile. Marrero–Martell testified that Junior Cápsula had told him that he (Cápsula) had delivered cocaine to the appellant and Núñez. Junior Cápsula then added that Marrero–Martell should pick up the drugs from the airport.

An airport security guard became inquisitive at the sight of all the activity around the appellant's aircraft. When the guard approached, the appellant told Pérez that he would distract the guard while the bags were unloaded. The appellant told the guard (falsely) that Pérez and Nieves had arrived by parachute. The guard then instructed the appellant not to take off until customs officials could arrive, and shortly thereafter put the appellant on the telephone with a customs agent. The appellant suggested that the landing at Arecibo was due to electrical problems and that his real destination was Isla Grande Airport. In the meantime, the other three men (Pérez, Nieves, and Núñez) unloaded bags filled with cocaine from the aircraft and stashed them in a waiting automobile. The car then departed and—about 35 minutes after landing at Arecibo—the appellant and Núñez flew away before customs officials could arrive.1

In due season, a federal grand jury returned an indictment that targeted, among other things, the broad drug-trafficking conspiracy headed by Junior Cápsula. One count of the indictment, however, charged the appellant with participating in a narrower conspiracy to import five or more kilograms of cocaine into the customs territory of the United States. See 21 U.S.C. §§ 952(a)

, 963. At trial, Marrero–Martell and Pérez testified for the government as cooperating witnesses. The jury found the appellant guilty on the single count lodged against him and, on August 22, 2014, the district court sentenced him to serve a 235–month term of immurement. This timely appeal ensued.

II. ANALYSIS

The appellant, represented on appeal by new counsel, attacks on several fronts. His claims of error can conveniently be segregated into four tranches. We address each tranche separately and then tie up a loose end.

A. Sufficiency of the Evidence.

The appellant's flagship claim is that the government failed to prove beyond a reasonable doubt his specific intent to engage in a conspiracy to traffic narcotics. Since the appellant did not at any time move for judgment of acquittal below, see Fed.R.Crim.P. 29

, we review this claim only for clear and gross injustice, see

United States v. Gobbi, 471 F.3d 302, 309 (1st Cir.2006) ; United States v. Greenleaf, 692 F.2d 182, 185 (1st Cir.1982) ; see also

Magee v. BEA Constr. Corp., 797 F.3d 88, 90 & n. 2 (1st Cir.2015). Nothing of the sort occurred here.

In considering a claim of evidentiary insufficiency, we must take the facts in the light most hospitable to the prosecution, drawing all reasonable inferences in its favor.” United States v. Hadfield, 918 F.2d 987, 996 (1st Cir.1990)

. We are not at liberty to question the credibility of witnesses. See

United States v. O'Brien, 14 F.3d 703, 706 (1st Cir.1994). Moreover, we are constrained to recognize that [r]eliance on indirect, as opposed to direct, evidence in a criminal case is both permissible and commonplace.” United States v. Spinney, 65 F.3d 231, 234 (1st Cir.1995). Even with respect to a preserved challenge to the sufficiency of evidence, the verdict must stand as long as it derives support from a “plausible rendition of the record.” United States v. Ortiz, 966 F.2d 707, 711 (1st Cir.1992).

To sustain a conviction for conspiracy, the government must show “beyond a reasonable doubt that a conspiracy existed and that a particular defendant agreed to participate in it, intending to commit the underlying substantive offense.” United States v. Sepulveda, 15 F.3d 1161, 1173 (1st Cir.1993)

. The existence of a conspiracy, as well as a particular defendant's membership in it, may be “inferred from the defendant['s] words and actions and the interdependence of activities and persons involved.” United States v. Boylan, 898 F.2d 230, 241–42 (1st Cir.1990). “The government need not show that each conspirator knew of or had contact with all other members. Nor need it show that the conspirators knew all of the details of the conspiracy or participated in every act in furtherance of the conspiracy.” United States v. Soto–Beníquez, 356 F.3d 1, 19 (1st Cir.2003).

The conspiratorial agreement may be tacit or express and may be proved by circumstantial evidence. See Sepulveda, 15 F.3d at 1173

. To prove a defendant's participation in a conspiracy, the government must show two types of intent: the defendant's intent to join the conspiracy and his intent to perpetrate the underlying substantive offense. See United States v. Rivera–Santiago, 872 F.2d 1073, 1079 (1st Cir.1989)

. This, of course, requires a showing that the defendant had knowledge of the underlying substantive offense and that he “both intended to join the conspiracy and intended to effectuate the objects of the conspiracy.” United States v. Burgos, 703 F.3d 1, 11 (1st Cir.2012) (quoting United States v. Dellosantos, 649 F.3d 109, 116 (1st Cir.2011) ).

The record here is more than ample to show that the appellant knowingly entered into an agreement with other miscreants to commit the underlying offense: smuggling cocaine into the United States. The jury reasonably could have found that the appellant joined members of the drug-trafficking ring, agreed to transport drugs and drug money by air between the Dominican Republic and Puerto Rico, undertook the August 22 flight after one of the coconspirators (Marrero–Martell) received instructions from the drug kingpin (Junior Cápsula), and knowingly agreed to participate in the smuggle. The appellant's eager participation in the venture is evident from his course of conduct: he financed the purchase of an airplane, flew it from the Dominican Republic to Puerto Rico, and attempted to cover up the smuggling in his dealings with both a security guard at the airport in Arecibo and a customs agent.

The appellant now contends that he was merely present, not culpably present. See Ortiz, 966 F.2d at 712

(explaining the difference). The record, however, belies this disclaimer: it makes manifest that the appellant participated knowingly at several key points in the conspiracy. A jury surely could have inferred—as this jury did—the existence of a conspiracy and the appellant's membership in it.

The appellant's fallback position is that the government never established that he knew that the bags he was transporting contained cocaine. This position is untenable: the jury reasonably could have concluded that the appellant traveled to the Dominican Republic with Núñez for the specific purpose of transporting drugs. Núñez informed Marrero–Martell that an aircraft could be used for the specific purpose of smuggling large quantities of cocaine into Puerto Rico. Núñez and the appellant received the drugs from the operation's kingpin, Junior Cápsula, and made the trip at his direction. Once in Arecibo, the appellant distracted the security guard at the airport while the cargo was unloaded, and lied to both the guard and a customs official. He then decamped without waiting for customs officials to...

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