U.S. v. Vázquez-Rivera

• Citation: 407 F.3d 476
• Decision Date: 18 May 2005
• Docket Number: No. 02-1818.,02-1818.
• Parties: UNITED STATES of America, Appellee, v. Jorge A. VÁZQUEZ-RIVERA, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

407 F.3d 476

UNITED STATES of America, Appellee, v. Jorge A. VÁZQUEZ-RIVERA, Defendant, Appellant.

No. 02-1818.

United States Court of Appeals, First Circuit.

Heard June 9, 2004.

Decided May 18, 2005.

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Edward J. DeAngelo, was on brief, for appellant.

Sonia I. Torres-Pabón, Assistant United States Attorney, Chief, Criminal Division, with whom H.S. García, United States Attorney, and Germán A. Rieckehoff, Assistant United States Attorney, were on brief, for appellee.

Before TORRUELLA, Circuit Judge, PORFILIO,^* Senior Circuit Judge, and HOWARD, Circuit Judge.

TORRUELLA, Circuit Judge.

Defendant-appellant Jorge A. Vázquez Rivera ("defendant") appeals from his conviction on one count of conspiracy to possess cocaine and heroin with intent to distribute under 21 U.S.C. § 846. For the reasons stated below, we affirm his conviction.

I.

We recount the relevant facts in the light most favorable to the jury verdict. See United States v. Casas, 356 F.3d 104, 109 (1st Cir.2004).

The government presented the testimony of seven witnesses in its case in chief, six of whom testified pursuant to plea agreements. José Borrero Feliciano ("Borrero") testified that, after he was released from prison in 1991, he approached defendant about working for him in the drug business. Borrero stated that, after defendant consulted with Roberto Soto Andón ("Soto"), he began selling cocaine and heroin on behalf of defendant and Soto. According to Borrero, defendant told him that he was in charge of the drug point at the La Ceiba Housing Project in Ponce, Puerto Rico ("the Ceiba drug point"). Borrero stated that he never saw defendant sell drugs on the street, but that he went to defendant's home to replenish his drug supplies.

Alberto Negrón Constantino ("Negrón") testified that he met defendant in 1995 and sold him cocaine and heroin for distribution by Soto's drug operation. Negrón initially sold cocaine and heroin to defendant's brother Víctor Vázquez Rivera. In late 1996 or early 1997, Negrón began working for Soto. According to Negrón, Soto removed defendant as the head of the Ceiba drug point. Negrón then took over the Ceiba drug point and began purchasing the cocaine and heroin for the drug point himself. Another co-conspirator, Daniel Sánchez Ortiz ("Sánchez"), testified that he was a drug runner in the Soto organization and that he bought and sold drugs from defendant's brother. While Sánchez never dealt directly with defendant, he was instructed by Víctor Vázquez Rivera that he was acting on behalf of defendant.

Another witness, Edwin Meléndez Negrón, stated that he had been supplied drugs by defendant for his drug point elsewhere in the Ponce area. In addition, he testified that he went to Las Cucharas jail in Ponce, Puerto Rico with defendant to visit Soto while he was confined there. Alexander Figueroa Delgado testified that he lived for about a month with a cousin who sold heroin for defendant. Finally, Yazmin Laracuente Alameda testified that after her husband was arrested on drug charges, she began selling cocaine for defendant.

Defendant appealed from the jury verdict, alleging the following: (1) improper testimony from a government witness; (2) the prosecutor's closing arguments were rife with error; and (3) defendant's sentence was improperly enhanced. In supplemental briefing, defendant also appealed his sentence on the basis that it was imposed in violation of United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We address each argument in turn.

II.

A. Improper Testimony

Defendant argues on appeal that the case agent, Iván Lugo, gave improper vouching testimony. Because there was no contemporaneous objection, we review for plain error. To show plain error, a defendant must show that an error occurred, which was clear and obvious; and that it affected defendant's substantial rights and seriously impaired the fairness, integrity or public reputation of the public proceedings. See United States v. Pérez-Ruiz, 353 F.3d 1, 9 (1st Cir.2003).

Defendant argues that the testimony of Agent Lugo was improper because, in the course of rebuttal, the prosecution twice elicited a statement from Lugo purporting to "certify" that Víctor Vázquez Rivera, defendant's brother, would not have received a safety valve credit if he had not incriminated the defendant. Further, defendant argues, it was improper to allow testimony that Agent Lugo "already knew" that defendant was involved in drug trafficking.

Improper vouching occurs when "prosecutors ... place the prestige of the United States behind a witness by making personal assurances of credibility or by suggesting that facts not before the jury support the witness's account." United States v. Torres-Galindo, 206 F.3d 136, 140 (1st Cir.2000).

Agent Lugo initially testified in the government's case in chief. The statements that defendant objects to on appeal were given after defendant's brother, Vítor Vázquez Rivera, testified for the defense. Víctor Vázquez Rivera testified that his brother was not involved in Roberto Soto's operations and that he had never distributed cocaine or heroin. In order to impeach Vázquez Rivera's testimony, the government called Agent Lugo to the stand again. He testified to the following:

Q [by AUSA]: Sir, did you have an opportunity to interview Víctor Vázquez Rivera?

Agent Lugo: Yes, ma'am.

Q: And what was the purpose of that interview?

A: It was a safety valve debriefing.

Q: Please explain to the members of the jury, what is a safety valve debriefing?

A: Safety valve debriefing is an opportunity for the defendant [referring to Víctor Vázquez Rivera] to speak to the government and give us his admissions of their [sic] criminal activities. And this statement cannot be used against him once [he] give[s] it to us at that particular time, and in return they receive the benefit of the safety valve debriefing.

Q: When you say give the opportunity, [Víctor Vázquez Rivera] an opportunity to speak about him, is he also required under the law to speak about everything he knows?

A: Yes, ma'am.

. . . .

THE COURT: Well, when you say about everything he knows, so that we are exact, the requirement on the safety valve debriefing is that he testifies about everything he knows about the offense that he is pleading to, or other offenses that have a common scheme or plan with that offense....

....

Q: Do you recall what, if anything, did Víctor Vázquez say about Jorge Vázquez, his brother during that debriefing?

A: Yes, ma'am. The first thing that I remember in reference to that is when I started talking to him about his brother and Robert[o Soto-Andón], he refused to talk. He said that he wasn't going to say anything regarding his brother or Robert[o Soto-Andón]. And at that point—

....

A: At that point he was advised, you know, that if he didn't say everything that he knew, he couldn't receive credit.

He kept stubbornly saying that he wasn't going to say anything, that he didn't care.

At that point I contacted the U.S. Attorney's Office and advised them of the problem I was having. And you know, it was conveyed to Mr. Vázquez, Víctor Vázquez, that he had to say everything that he knew related to the charges that he had been involved, with the criminal activities he had been charged, and that part of that was talking about his brother.

He stated that he was not going to testify against his brother or anybody else and then reluctantly admitted his brother worked for Robert[o Soto-Andón], he was a runner for [him].

....

Q: Sir, do you know if the government certified later on [sic] the court that Víctor Vázquez had complied with meeting with the United States and providing all information he had?

A: Yes, ma'am.

....

Q: [After Agent Lugo was shown a copy of his notes] Sir, is this the only reference to Robert[o Soto-Andón] and [defendant] in any of these notes?

A: Yes, ma'am. If you notice, it has the asterisk next to it, that was when we reached the point during the interview that I began to have the problem that I mentioned earlier with Mr. Víctor Vázquez. Once I asked him about Robert[o Soto-Andón] and his brother, that was when we had that problem and I made those notations there, the asterisk. Also, the part about [defendant] being a "compadre" of—

Q: Why did you put that down?

A: Because I didn't know that. I knew about Robert[o Soto-Andón] organization, about the drug trafficking, but I had no knowledge that [defendant] was the "compadre" of Robert[o Soto-Andón]. So I felt that was something I had to write down to remember it.

Q: Who gave you that information?

A: Víctor Vázquez, ma'am....

After defendant's counsel cross-examined Agent Lugo regarding his taking of notes during the safety valve debriefing, Agent Lugo gave the following testimony on redirect:

Q: Mr. Lugo, would the government have certified that Víctor Vázquez had provided the information if he had not stated the information about his brother?

....

A: No, the government would not certify him.

Defendant argues that Agent Lugo attempted to vouch for the credibility of Víctor Vázquez Rivera. Defendant's argument fails because Agent Lugo was not attempting to bolster the credibility of any witness, he was merely explaining the procedure under 18 U.S.C. § 3553(f). Agent Lugo was not, as defendant suggests, stating that Víctor Vázquez Rivera told the truth at the safety valve hearing, although that is its purpose. See generally United States v. Matos, 328 F.3d 34, 39 (1st Cir.2003)(stating that "a safety valve debriefing is a situation that cries out for straight talk; equivocations, half-truths, and veiled allusions will not do"). Instead, the statement was introduced to show that Víctor Vázquez Rivera gave a prior inconsistent statement to Agent Lugo, which contradicted his testimony during the trial. The statement was couched in terms of the certification, but that was not meant to...