U.S. v. Rodríguez-Vélez

• Decision Date: 01 March 2010
• Docket Number: No. 07-2813.,07-2813.
• Citation: 597 F.3d 32
• Parties: UNITED STATES of America, Appellee, v. Eduardo RODRÍGUEZ-VÉLEZ, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

597 F.3d 32 UNITED STATES of America, Appellee,
v.
Eduardo RODRÍGUEZ-VÉLEZ, Defendant, Appellant. No. 07-2813. United States Court of Appeals, First Circuit. Submitted January 6, 2010. Decided March 1, 2010.

[597 F.3d 36]

Stephen J. Weymouth and Law Offices of Stephen J. Weymouth, on brief, for appellant.

Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney (Appellate Chief), and Luke Cass, Assistant United States Attorney, on brief, for appellee.

Before LYNCH, Chief Judge, SOUTER,^* Associate Justice, and SELYA, Circuit Judge.

SELYA, Circuit Judge.

On May 4, 2005, a federal grand jury sitting in the District of Puerto Rico charged defendant-appellant Eduardo Rodríguez-Vélez and seven codefendants with, inter alia, conspiracy to possess with intent to distribute 50 grams or more of cocaine base (crack) and a detectable amount of marijuana. See 21 U.S.C. §§ 841(a)(1), 846. All of the other defendants admitted their guilt and, in October of 2006, the appellant stood trial alone. The jury found him guilty on the conspiracy count, and the district court, relying in part on an information filed by the government in pursuance of 21 U.S.C. § 851(a), sentenced him to life imprisonment.

Before us, the appellant claims that the district court committed a litany of errors in (i) denying his motion for judgment of acquittal; (ii) making erroneous evidentiary rulings; (iii) denying his motion for a mistrial based on the appellant's outburst at trial; (iv) denying his motion for a mistrial based on prosecutorial misconduct; and (v) improperly enhancing his sentence. We reject this entire asseverational array and, accordingly, affirm the judgment below.

I. BACKGROUND

The government presented its case through four witnesses. The appellant neither testified nor proffered any evidence. We rehearse the facts elicited at trial to the extent necessary to place this appeal into a workable perspective.

The government's first witness was José Luís Vélez (Vélez), a confidential informant for the federal Drug Enforcement Administration (DEA) and a former retail drug customer. Vélez testified that Callejón de Los Locos was an "active" drug point in Cabo Rojo, Puerto Rico. Members of the Graniela-Lugo (Graniela) family operated the drug point and, from at least as early as 1996, sold marijuana, cocaine, and crack to "selected people." Vélez was one of these people; he bought marijuana two to three times per week from roughly 1997 to 2003. He also made occasional purchases of cocaine from the drug point.

Vélez began working with the DEA in 2003 and made two recorded purchases of crack from the drug point.¹ The first purchase involved four bags; the second involved ten bags. With the ten-bag purchase, Vélez received a free bonus bag of crack — a fringe benefit that, he testified, was consistent with customary practice at the drug point.

David Ulises Martínez-Camacho (Martínez), a confidential informant and a former retail drug customer, testified that he visited the drug point nearly every day from 1996 to 2000. His last visit took place in 2004. He purchased marijuana and, starting in 2000 or 2001, crack.

Martínez dated one of the Graniela sisters. That romantic entanglement allowed

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him to enter the Granielas' residence on an average of twice a week. At times, the Granielas pressed him into service; he "cooked" crack (i.e., manufactured crack from cocaine) for them at the drug point on two or three occasions.

Martínez outlined the logistics of marketing at the drug point, which was open year-round. Its hours of operation were from noon to midnight on Saturday to Thursday, and noon to 1 a.m. on Friday. Patrons had the option of purchasing drugs on foot or by drive-through. To avail himself of the latter option, a customer would drive up to a seller, place his order, drive down a dirt road, turn around, and park next to a fence. At that locus, the drugs were exchanged for cash.

Retail sales often involved an encoded language, couched in terms more commonly associated with haberdasheries than with criminal enterprises. In this argot, "shoe" meant crack, "shirt" meant cocaine, and "pants" meant marijuana.

Martínez vouchsafed that he knew the appellant by the sobriquet "El Barbero" and knew him to be a brother-in-law of the Granielas. Martínez added that on an occasion when the quality of crack available at the drug point seemed sub par, one of the Granielas told him that, if he waited, the appellant would bring a new supply of cocaine to be manufactured into crack. On other occasions, a Graniela brother, Iván, told Martínez that when the appellant arrived, the drug point would have "new material." On still other occasions when the supply of drugs was running low, either Iván Graniela or his brother Papotin would make a telephone call to order more drugs and mention the appellant's name. Once, Martínez saw Iván Graniela give the appellant a wad of bills three to four inches thick.

José Luna, a DEA agent who worked undercover and surveilled the drug point over one hundred times between 1995 and 2005, was the government's next witness. He described the overall nature of the government's investigation. From his personal observations, sales of approximately 840-1000 grams of crack each week were made at the drug point.

The DEA made five separate undercover purchases of crack at the drug point (including the two made by Vélez) from 2003 to 2005. One of these was videotaped from a lamp-post video camera, and Luna described the activity taking place at the drug point as shown in the videotape.

The government's final witness was Francisco Vega Montalvo (Vega), who served as a confidential informant for the DEA since approximately 2003. Vega testified that he lived in Cabo Rojo for about six years and was "very close" to the appellant. The two men sold drugs together from 1998 to 2001. They participated jointly in at least seven deals aimed at procuring cocaine or marijuana for the drug point. We sketch Vega's accounts of these seven incidents.

The first incident occurred in September of 1998. The appellant expressed concern that the drug point had exhausted its supply of crack and enlisted Vega's help. Vega arranged for the purchase of one kilogram of cocaine and ten pounds of marijuana. Vega, the appellant, and Jorman (whom Vega identified as the appellant's "runner") then proceeded to an apartment complex and bought the drugs for $28,000. The appellant directed Jorman to deliver the goods to the drug point.

The second incident occurred in May of 1999. The appellant, Jorman, and another man went to Vega's store and paid $18,000 to a man named Chaka for a kilogram of cocaine. Vega saw not only the cocaine but also a cash-filled briefcase. After the transaction was consummated, the appellant

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instructed Jorman to take the cocaine to the drug point and inform "the guys" that he (the appellant) would tell them the price later.

The third incident took place in September of 2000. It involved a purchase of ten pounds of marijuana. Vega, the appellant, Jorman, and a man named Freddie Camacho were in attendance. Camacho went into an apartment and returned with the drugs. The appellant gave one pound to Vega, priced the remainder at $1, 900 per pound, and directed Jorman to take it to the drug point.

The fourth incident occurred in October of 2000. Vega met with the appellant at the home of the appellant's mother to discuss replenishing the drug point. There, two hangers-on, Chapi and Amarillo, mentioned a fisherman who had found twenty kilograms of cocaine and was willing to sell it for $10,000 per kilogram. The appellant stated that twenty kilograms would be enough to supply the drug point for two weeks and hatched a plot to steal the drugs. Vega declined to take part in the plot and never learned what happened next.

The fifth incident occurred in November of 2000. Vega, Jorman, Camacho, and the appellant went to a car wash to buy one kilogram of cocaine for $20,000. The appellant emphasized that he wanted cocaine of the "BMW" brand because that was the best brand for processing into crack. After the transaction was completed, Vega and Jorman used the appellant's car to drive to a street near the drug point. There, a runner met them. Jorman told the runner that "this is going to the Callejón and tell those nuts to square off the money that I'm owed."

The sixth incident occurred in December of 2000. Vega, the appellant, Jorman, and another man purchased one kilogram of BMW brand cocaine from a man in a truck. After completing the transaction, the appellant ordered Jorman to deliver the cocaine for "Cabo Rojo" and to inform "the guys" that he would tell them the price later.

The final incident occurred in early 2001. Vega and the appellant purchased one kilogram of cocaine at a bakery in exchange for some heroin. The appellant directed Jorman to take the cocaine to the drug point.

Vega stopped dealing drugs in 2001 and agreed to cooperate with the DEA roughly two years later. He succeeded in recording five conversations with the appellant. We summarize the material aspects of two such conversations:

1. On May 10, 2004, the appellant told Vega that the drug point was "too hot" and that everyone there was going to get arrested.

2. On June 15, 2004, the appellant stated that he had stopped doing business with the Granielas on credit. He added that he made his livelihood from the Granielas and that he was being more cautious because of how "hot" the drug point had become. He also claimed to have started the drug point.

II. ANALYSIS

We address the appellant's five claims of error sequentially.

A. Sufficiency of the Evidence.

We begin with the appellant's claim that his motion for judgment of acquittal, Fed.R.Crim.P. 29, should have been granted for lack of evidence. We review this sufficiency of the evidence claim de novo, appraising the proof...