U.S. v. Santiago, 93-2246

• Decision Date: 03 April 1996
• Docket Number: No. 93-2246,93-2246
• Citation: 83 F.3d 20
• Parties: UNITED STATES of America, Appellee, v. Luis A. SANTIAGO, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 20

83 F.3d 20

UNITED STATES of America, Appellee, v. Luis A. SANTIAGO, Defendant, Appellant.

No. 93-2246.

United States Court of Appeals,

First Circuit.

Heard April 3, 1996.

Decided May 1, 1996.

Appeal from the United States District Court for the District of Maine; Hon. Hector M. Laffitte, ^* U.S. District Judge.

George F. Gormley, with whom John D. Colucci and Gormley & Colucci, P.C., Cambridge, MA, were on brief, for appellant.

Luis A. Santiago on supplemental brief pro se.

Helene Kazanjian, Portland, ME, Assistant United States Attorney, with whom Jay P. McCloskey, United States Attorney, Bangor, ME, and Jonathan R. Chapman, Assistant United States Attorney, Portland, ME, were on brief, for appellee.

Before SELYA, Circuit Judge, ALDRICH, Senior Circuit Judge, and STAHL, Circuit Judge.

SELYA, Circuit Judge.

A jury empaneled in the United States District Court for the District of Maine found defendant-appellant Luis A. Santiago guilty of a single count of conspiracy to possess and distribute heroin, 21 U.S.C. § 846, and the district court sentenced him as a career offender. Santiago now challenges his conviction and sentence. We affirm.

I. Background

We limn the facts in the light most congenial to the verdict, consistent with record support. See, e.g., United States v. Maraj, 947 F.2d 520, 522 (1st Cir.1991).

The overarching conspiracy that the government charged in the indictment and attempted to portray at trial pirouetted around Wilfredo Figueroa, a Lawrence, Massachusetts drug dealer. Figueroa began his career as a purveyor of cocaine. In 1991, he shifted his attention to heroin. He soon built up a roster of approximately fifteen clients, all from Maine. In a typical transaction a client would call Figueroa from Maine, order a certain quantity of heroin, and then sojourn to Lawrence to take delivery. Occasionally a client would appear on Figueroa's doorstep without any prearrangement, and Figueroa would improvise.

In effect, Figueroa acted as a middleman (or so the jury could have found). From October 1991 forward, he had two suppliers: Angel Soto and the appellant. Figueroa patronized Soto as his principal supply source but turned to the appellant whenever Soto could not fill an order. Furthermore, some of Figueroa's clients preferred the "brand" of heroin that the appellant carried, and Figueroa invariably used Santiago as his source of supply whenever a client ordered that brand. ¹

When Figueroa asked for heroin, the appellant would either deliver the drugs personally or arrange for their delivery. All the deliveries took place in Massachusetts. Figueroa (who cooperated with the government and testified at the trial) stated that he purchased an average of fifty bags of heroin a day from the appellant at $15 apiece, often on credit. Although the appellant claims that he never met any of the retail customers, the government presented evidence that contradicted this assertion; and, moreover, Figueroa testified that he informed the appellant that all his clients were coming from Maine to Massachusetts to buy heroin.

Figueroa's involvement in the drug trade followed a hallowed family tradition. His uncle, Roberto Figueroa, dealt drugs in Maine. Blood may be thicker than water, but it is by no means thicker than self-interest. When lawmen closed in on Roberto Figueroa's operation he threw his nephew to the wolves in hopes of mitigating his own punishment. To help set the snare, Roberto ordered 130 bags of heroin from his compliant nephew and demanded delivery in Maine. The appellant sold fifty bags of heroin to Figueroa and Soto supplied the remainder. On January 15, 1992, Figueroa and Soto exchanged the drugs for cash at a designated rest area alongside the Maine Turnpike and were promptly arrested. The authorities apprehended the appellant in Massachusetts and, without objection, removed him to Maine for trial. He was convicted and sentenced in due course. This appeal ensued.

II. Analysis

A. Sufficiency of the Evidence

The appellant--who is represented by fresh counsel on appeal--argues that the government presented insufficient evidence to justify a conviction. Since the appellant did not preserve a sufficiency challenge by moving for judgment of acquittal at the close of all the evidence, see Fed.R.Crim.P. 29, our review is limited to the prevention of clear and gross injustice. See United States v. Taylor, 54 F.3d 967, 975 (1st Cir.1995); United States v. McDowell, 918 F.2d 1004, 1009-10 (1st Cir.1990).

To determine a sufficiency challenge, we customarily inquire whether the evidence, taken in the light most favorable to the government--a perspective that requires us to draw every plausible inference in line with the verdict and to resolve every credibility conflict in the same fashion--permitted a rational jury to find each essential element of the offense of conviction to have been proven beyond a reasonable doubt. See United States v. Olbres, 61 F.3d 967, 970 (1st Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 522, 133 L.Ed.2d 430 (1995); Maraj, 947 F.2d at 522-23. In a conspiracy case, as in virtually any other criminal case, the government can meet this burden by either direct or circumstantial evidence, or by any combination thereof. See United States v. Echeverri, 982 F.2d 675, 679 (1st Cir.1993); United States v. David, 940 F.2d 722, 735 (1st Cir.1991), cert. denied, 502 U.S. 1046, 112 S.Ct. 908, 116 L.Ed.2d 809 (1992).

The appellant's sufficiency challenge is lacking in merit. Under the statute of conviction, 21 U.S.C. § 846, it was incumbent upon the government to establish that the appellant agreed with Figueroa (and, according to the indictment, possibly "other persons"), at least tacitly, to commit the substantive crime--heroin distribution, see 21 U.S.C. § 841(a)(1) & (b)(1)(C)--which constituted the object of their agreement, and that he thereafter participated in the conspiracy knowingly and voluntarily. See Echeverri, 982 F.2d at 679. The record here satisfies those criteria.

To be sure, the appellant makes an impassioned plea that the evidence shows no more than a buyer-seller relationship between him and Figueroa. We agree with the premise that underlies this plea: a buyer-seller relationship, simpliciter, is an insufficient predicate for a finding that the buyer and the seller are guilty as coconspirators. See, e.g., United States v. Mancari, 875 F.2d 103, 105 (7th Cir.1989) (holding that the sale of drugs in small quantities is inadequate, without additional evidence, to support a finding of conspiracy to distribute drugs to others because the seller could reasonably believe that such purchases are intended for the buyer's personal use). But the premise provides the appellant no safe harbor on the facts of this case. While a scenario in which A sells to B (who resells to C, D, E, and F) may signify that A and B are related only as vendor and vendee, such a scenario may also signify a broader, more imbricated relationship. See, e.g., United States v. Moran, 984 F.2d 1299, 1303 (1st Cir.1993). Knowledge and intent are at the core of the issue. Thus, the question in such a case is whether the evidence surrounding the transaction(s) is sufficient to allow a fairminded jury to find beyond a reasonable doubt that A knew that B was reselling the drugs, and intended to facilitate the resales. See id.

The evidence here, taken in the light most congenial to the verdict, establishes that the relationship between Figueroa and Santiago contained enough elements of "[c]ommon knowledge, interdependence, [and] shared purpose," id., to support a finding that they were coconspirators. Figueroa testified that the appellant had actual knowledge of the follow-on sales to Maine residents. Two of Figueroa's customers testified that on at least one occasion the appellant made a delivery of heroin to Figueroa's home and met some of his clients.

The foregoing testimony was amply corroborated by the circumstantial evidence. The appellant sold Figueroa quantities of drugs (fifty bags per day) well beyond the outer limits of personal use amounts and packaged them in a manner suggestive of intended resale. The regularity of the transactions, the quantities of heroin, the amounts of money involved, and the financial terms (especially the appellant's extension of credit to Figueroa), taken together, form a sturdy foundation for a finding that the appellant and Figueroa had at least a tacit agreement to distribute the heroin to third parties. Since they acted upon that tacit agreement (or so the jury could have found), the appellant's conviction is sustainable by any measure. Surely, it does not work an injustice. ²

B. Venue

The appellant next asserts that he was tried in an improper venue because he never committed a crime in the District of Maine. This assertion is baseless. It is settled beyond peradventure that venue is a personal privilege which can be waived. See Fed.R.Crim.P. 18; see also, 2 Charles A. Wright, Federal Practice and Procedure § 306 (2d ed. 1982). Here, the appellant consented to his removal and to the holding of the proceedings in Maine. He submitted to trial there without ever contesting venue. He has, therefore, waived the right to raise a venue-based challenge to his conviction. ³ See United States v. Cordero, 668 F.2d 32, 44-45 (1st Cir.1981); see also Fed.R.Crim.P. 12(b)(2) (mandating waiver of most defenses that could have been, but were not, raised prior to trial).

In all events, the argument fails on the merits. The venue requirement is designed to prevent a criminal defendant from having to defend himself in a place that has no meaningful connection to the offense with which he is charged. This court held in United States v. Uribe, 890 F.2d 554 (1st Cir.1989), that in a conspiracy case venue is proper in any district in which an act in furtherance of the charged conspiracy has taken place, even if a particular coconspirator was not himself...