U.S. v. Ortiz

• Decision Date: 04 May 1992
• Docket Number: 91-1975,Nos. 91-1974,s. 91-1974
• Parties: 35 Fed. R. Evid. Serv. 1235 UNITED STATES of America, Appellee, v. Ruben ORTIZ, a/k/a Ruben Ortiz De Jesus, Defendant, Appellant. UNITED STATES of America, Appellee, v. Felix NUNEZ, a/k/a Felix Nunez Molina, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 707

966 F.2d 707

35 Fed. R. Evid. Serv. 1235

UNITED STATES of America, Appellee, v. Ruben ORTIZ, a/k/a Ruben Ortiz De Jesus, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Felix NUNEZ, a/k/a Felix Nunez Molina, Defendant, Appellant.

Nos. 91-1974, 91-1975.

United States Court of Appeals First Circuit.

Heard May 4, 1992.

Decided June 10, 1992.

Rehearing and Rehearing En Banc Denied July 21, 1992.

Luis F. Abreu Elias, with whom Fernando J. Carlo, Hato Rey, P.R., was on brief, for defendant, appellant Felix Nunez.

Rachel Brill, Asst. Federal Public Defender, with whom Benicio Sanchez Rivera, Federal Public Defender, San Juan, P.R., was on brief, for appellant Ruben Ortiz.

Jose A. Quiles, Asst. U.S. Atty., with whom Daniel F. Lopez Romo, U.S. Atty., Hato Rey, P.R., and Jeanette Mercado-Rios, Asst. U.S. Atty., San Juan, P.R., were on brief, for U.S.

Before SELYA, Circuit Judge, COFFIN and CAMPBELL, Senior Circuit Judges.

SELYA, Circuit Judge.

Defendants Felix Nunez Molina (Nunez) and Ruben Ortiz De Jesus (Ortiz) were convicted of aiding and abetting a drug-trafficking operation. Both men appeal. We affirm their convictions but remand for resentencing as to Nunez.

I. BACKGROUND

We summarize the relevant events, interpreting the record in the light most helpful to the government. See United States v. Maraj, 947 F.2d 520, 522 (1st Cir.1991).

On February 19, 1991, a federal Drug Enforcement Administration (DEA) agent, Roberto Izquierdo, using a confidential informant (CI) as a conduit, arranged to buy a half kilo of cocaine from Ernesto Llanos Domenech (Llanos). The men were to meet in front of a local bank. When Llanos arrived, he asked Izquierdo and the CI to come to his house. They refused. Llanos then left to retrieve the cocaine, promising to meet his prospective customer later that evening in a parking area adjacent to a fast-food restaurant.

Unbeknownst to Llanos, he was placed under surveillance at that time. On the way home, Llanos flagged down a passing car operated by Nunez. The two men spoke. They then proceeded to Llanos' house, each driving his own automobile.

After a brief respite, the pair drove to the restaurant in Llanos' car. Llanos was behind the wheel; Nunez was ensconced in the right front seat. When Llanos' car stopped, Izquierdo and the CI (who was wearing a body wire) approached the open window on the passenger's side. They began to rehash the terms of the deal with Llanos, speaking across Nunez. Llanos said that he had brought a package containing a kilogram of cocaine. Izquierdo protested that this was double the amount he had agreed to purchase. Llanos then told the agent that he and Nunez would repair to his house, cut the drug, reweigh it, and return with a half kilogram. During this conversation, Nunez confirmed that he and Llanos would have to reduce, recalibrate, and repackage the contraband. The sellers drove away.

Llanos returned to the restaurant's parking area later that evening, accompanied by Nunez's brother-in-law, defendant Ortiz. An opaque plastic sack lay in the front seat between the two men. Izquierdo approached the vehicle on the driver's side and began discussing the purchase with Llanos. Llanos grabbed the sack, removed a transparent bag of cocaine, and displayed it. After inspecting the bag's contents and engaging in a brief conversation about the previously negotiated sale, Izquierdo left to get the money. At this juncture, the trap snapped shut. DEA agents arrested Llanos and Ortiz. A pat-down search revealed that Ortiz was carrying a beeper.

Nunez and Ortiz were charged with aiding and abetting Llanos' intended cocaine distribution. See 21 U.S.C. § 841(a)(1) (1982); 18 U.S.C. § 2 (1988). Llanos was charged as a principal and pled guilty. His alleged myrmidons were tried together and convicted.

II. SUFFICIENCY OF THE EVIDENCE

First and foremost, the appellants strive to convince us that the evidence was insufficient to sustain the jury verdict. We are not persuaded.

A. Standard of Review.

In assessing a sufficiency challenge, we examine the evidence in the light most flattering to the prosecution (in the process drawing all reasonable inferences in its favor) so that we may ascertain whether the proof would have allowed a rational jury to determine beyond a reasonable doubt that the defendant was guilty of the crime charged. ¹ See Maraj, 947 F.2d at 522-23; United States v. Vargas, 945 F.2d 426, 427-28 (1st Cir.1991); United States v. Victoria-Peguero, 920 F.2d 77, 86-87 (1st Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2053, 114 L.Ed.2d 458 (1991). In this analysis, no premium is placed upon direct as opposed to circumstantial evidence; both types of proof can adequately ground a conviction. See Nye & Nissen v. United States, 336 U.S. 613, 619, 69 S.Ct. 766, 770, 93 L.Ed. 919 (1949); Maraj, 947 F.2d at 523. Moreover, juries are not required to examine the evidence in isolation, for "individual pieces of evidence, insufficient in themselves to prove a point, may in cumulation prove it. The sum of an evidentiary presentation may well be greater than its constituent parts." Bourjaily v. United States, 483 U.S. 171, 179-80, 107 S.Ct. 2775, 2781, 97 L.Ed.2d 144 (1987).

On appeal, it is not the appellate court's function to weigh the evidence or make credibility judgments. Maraj, 947 F.2d at 523. Rather, it is for the jury to choose between varying interpretations of the evidence. It follows inexorably that the court of appeals ought not disturb, on the ground of insufficient evidence, a jury verdict that is supported by a plausible rendition of the record. See United States v. Quejada-Zurique, 708 F.2d 857, 859 (1st Cir.), cert. denied, 464 U.S. 855, 104 S.Ct. 173, 78 L.Ed.2d 156 (1983); United States v. Smith, 680 F.2d 255, 259 (1st Cir.1982), cert. denied, 459 U.S. 1110, 103 S.Ct. 738, 74 L.Ed.2d 960 (1983).

B. Mere Presence: "Point of Sale" Cases.

Despite the prosecution-friendly overtones of the standard of review, appellate oversight of sufficiency challenges is not an empty ritual. This case, in which Ortiz and Nunez both claim they were merely present at the scene of Llanos' crime and, therefore, the evidence against them was inadequate, presents a paradigmatic example of the sort of problems that can surface. On the one hand, "[m]ere association between the principal and those accused of aiding and abetting is not sufficient to establish guilt; nor is mere presence at the scene and knowledge that a crime was to be committed sufficient to establish aiding and abetting." United States v. Francomano, 554 F.2d 483, 486 (1st Cir.1977) (citations omitted); accord United States v. Clotida, 892 F.2d 1098, 1104-05 (1st Cir.1989). On the other hand, "there are circumstances where presence itself implies participation--as where a 250-pound bruiser stands silently by during an extortion attempt, or a companion stands by during a robbery, ready to sound a warning or give other aid if required." United States v. Martinez, 479 F.2d 824, 829 (1st Cir.1973); accord United States v. Garguilo, 310 F.2d 249, 253 (2d Cir.1962). In sum, the line that separates mere presence from culpable presence is a thin one, often difficult to plot.

We think it is important that this case does not involve a claim of mere presence in regard to, say, a seaman aboard a large vessel transporting drugs, cf. United States v. Mehtala, 578 F.2d 6 (1st Cir.1978), or an occupier of a multi-occupant dwelling where drugs are stored, cf. United States v. Ocampo, 964 F.2d 80 (1st Cir.1992). In situations involving primarily transport or storage, the possibility that an innocent bystander can be on the scene is significantly greater than in a situation where a person is brought to a neutral site by a drug trafficker preliminary to the actual consummation of a narcotics transaction.

Some general principles help us to establish this distinction. When assessing sufficiency challenges in criminal cases, we have remarked, time and again, that factfinders may draw reasonable inferences from the evidence based on shared perceptions and understandings of the habits, practices, and inclinations of human beings. Thus, jurors are neither required to divorce themselves from their common sense nor to abandon the dictates of mature experience. See Vargas, 945 F.2d at 429; Smith, 680 F.2d at 260; see also United States v. Ingraham, 832 F.2d 229, 240 (1st Cir.1987) ("The law is not so struthious as to compel a criminal jury to ignore that which is perfectly obvious."), cert. denied, 486 U.S. 1009, 108 S.Ct. 1738, 100 L.Ed.2d 202 (1988). Jurors can be assumed to know that criminals rarely welcome innocent persons as witnesses to serious crimes and rarely seek to perpetrate felonies before larger-than-necessary audiences. See United States v. Batista-Polanco, 927 F.2d 14, 18 (1st Cir.1991); United States v. Cuevas-Esquivel, 905 F.2d 510, 515 (1st Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 208, 112 L.Ed.2d 169 (1990); United States v. Beltran, 761 F.2d 1, 6 (1st Cir.1985); Quejada-Zurique, 708 F.2d at 861. Indeed, we held some years ago, on facts highly analogous to those in the instant record, that the "jury could have inferred that, had Appellant been a mere bystander, he would not have joined the two agents and [the principal] in the privacy of the car while the terms of the sale were further discussed." Martinez, 479 F.2d at 829.

In short, when the evidence shows a defendant arriving at the scene of a prearranged drug deal accompanied by, and with the contrivance of, a principal, the most closely applicable precedents are not the cases involving presence during the transport or storage of drugs, but those involving presence at the point of sale. See, e.g., United States v. Lema, 909 F.2d 561, 569-71 (1st Cir.1990); United States v. Paone, 758 F.2d 774, 776 (1st Cir.1985); Martinez, 479 F.2d at 829. The cases before us fall into the point-of-sale category. ²

C. The Evidence...