U.S. v. Figueroa

• Decision Date: 05 May 1992
• Docket Number: Nos. 91-1020,91-1049 and 91-1050,MILAGROS-VASQUE,91-1021,RIVERA-SERRAN,D,s. 91-1020
• Citation: 976 F.2d 1446
• Parties: 36 Fed. R. Evid. Serv. 671 UNITED STATES of America, Appellee, v. Angel Luis FIGUEROA, Defendant, Appellant. UNITED STATES of America, Appellee, v. Tomas FIGUEROA, Defendant, Appellant. UNITED STATES of America, Appellee, v. Isabelefendant, Appellant. UNITED STATES of America, Appellee, v. Carmenefendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1446

976 F.2d 1446

36 Fed. R. Evid. Serv. 671

UNITED STATES of America, Appellee, v. Angel Luis FIGUEROA, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Tomas FIGUEROA, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Isabel RIVERA-SERRANO, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Carmen MILAGROS-VASQUEZ, Defendant, Appellant.

Nos. 91-1020, 91-1021, 91-1049 and 91-1050.

United States Court of Appeals,

First Circuit.

Heard May 5, 1992.

Decided Oct. 7, 1992.

Charles W. Rankin with whom Rankin & Sultan was on brief for defendant-appellant Angel Luis-Figueroa.

Raymond E. Gillespie, for defendant-appellant Tomas Figueroa.

Ellen G. Grant with whom Sally & Fitch was on brief for defendants-appellants Isabel Rivera-Serrano and Carmen Milagros-Vasquez.

Dina Michael Chaitowitz, Asst. U.S. Atty., with whom Wayne A. Budd, U.S. Atty., was on brief for appellee.

Before BREYER, Chief Circuit Judge, CYR, Circuit Judge, and BOYLE, ^* District Judge.

CYR, Circuit Judge.

Appellants Angel Luis Figueroa, Tomas Figueroa, Isabel Rivera-Serrano ("Rivera") and Carmen Milagros-Vasquez ("Milagros"), and three codefendants, were arrested in January, 1990, as a result of a "reverse sting" operation conducted by the United States Drug Enforcement Agency ("DEA"). The grand jury indicted each of the four appellants for conspiring, and attempting, to possess, with intent to distribute, 500 or more grams of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(ii) and 846. Following a ten-day jury trial, each appellant was convicted of both charges, while their two codefendants were acquitted. ¹ Angel Figueroa received a prison sentence of 188 months; Tomas Figueroa 97 months; and Rivera and Milagros 63 months. These appeals followed.

I BACKGROUND

According to the evidence presented at trial, Rivera, the wife of Angel Figueroa, met Estaban Mendoza aboard a plane bound from Boston to San Juan on December 24, 1989. Unbeknown to Rivera, Mendoza had been cooperating with the DEA for thirteen years. During their conversation aboard the plane, Mendoza told Rivera that he was in the drug business. Rivera responded that her husband, Angel Figueroa, was in the drug business as well and sold cocaine from his record shop in the Roxbury area. Rivera told Mendoza that she was collecting welfare benefits, even though she and Angel had substantial property and savings in Puerto Rico. Mendoza told Rivera that he could sell her and her husband cocaine at $18,000 per kilogram provided they purchased at least three kilograms. Rivera expressed satisfaction with the price and said she would speak with her husband. By the end of the conversation, it had been agreed that Mendoza would contact Angel Figueroa at the record shop.

On or about January 8, 1990, Mendoza related his conversation with Rivera to DEA Special Agent Doyle, who asked him to verify the existence of the record shop. On January 17, Mendoza went to the shop, along with Ramon Santiago, another cooperating witness, where they met Tomas Figueroa, Angel's brother, who explained that he and Angel were partners and were interested in doing business with Mendoza based on Mendoza's discussion with Rivera. Tomas indicated that they were selling $6,000 to $7,000 a day in "dime" bags from the record store. Mendoza gave Tomas his Later that day, Mendoza placed a tape-recorded telephone call to the record shop and spoke with Tomas, who confirmed that he had spoken with Angel and that they wanted to buy cocaine from Mendoza. As a result of another recorded call to Tomas, Mendoza arranged a meeting with Angel at Las Brisas Restaurant, in Boston, for the following day. Surveillance was established outside the restaurant and Mendoza was fitted with a body transmitter. Mendoza and Santiago were seen meeting with Angel, while Milagros waited in Angel's car. During a recorded conversation, Angel confirmed that he was in the drug business, selling approximately $6,000 worth of cocaine per day. Angel indicated that he was interested in purchasing at least two kilograms from Mendoza. Mendoza responded that he could sell him three, at $18,000 per kilogram.

"beeper" number and told Tomas to have Angel call.

The next day Mendoza and Santiago went to the record shop, where Angel told them that the shop had been searched and that he had been arrested. ² Angel nevertheless expressed an abiding interest in doing business with Mendoza and gave Mendoza his home phone number. Two days later, on January 22, Mendoza had phone conversations with Rivera and, later, with Angel, which resulted in a meeting at Las Brisas the next day. These phone conversations too were recorded. Once again wearing a body wire, Mendoza went to the restaurant, and Angel Figueroa confirmed his interest in buying cocaine, stating that the quantity would depend on the wishes of other people he knew. Mendoza offered to sell Angel three kilograms for $20,000 in cash and $40,000 later. Following further conversations between Mendoza and Angel, it was agreed that Mendoza would sell Angel three kilograms for $30,000 in cash and $30,000 later.

On January 25, Mendoza again met Rivera, Milagros and Angel at the restaurant. Upon Mendoza's arrival, Rivera said to Angel: "that's the man." Rivera and Milagros immediately left the presence of Angel and Mendoza. Angel told Mendoza: "I got the 30 thousand," and indicated that Milagros and another person would be bringing the money. Angel, Milagros and Rivera left. Milagros later returned with another man. Mendoza entered their car, where Milagros pulled a bag from under the seat and showed the cash to Mendoza, stating: "It's always right on the money, it's here." Upon leaving the car, ostensibly to tell Santiago that the money had been delivered, Mendoza gave a prearranged signal to nearby DEA agents, who arrested Milagros and her companion. The arrests of Angel Figueroa, Tomas Figueroa and Rivera followed. A search of Angel Figueroa and his apartment disclosed records indicating that Rivera was receiving welfare benefits and that she and Angel had Puerto Rico bank account balances totalling over $86,000. ³

II DISCUSSION

1. Severance

Rivera asserts error in the denial of her motion to sever under Federal Rule of Criminal Procedure 14. The motion claimed that Rivera would be "unduly prejudiced because the mutually inconsistent defenses between herself and the other co-defendants w[ould] deny her the opportunity to a fundamentally fair trial." A proper motion for severance is within the sound discretion of the trial court and reversal is warranted only "upon the appellant's maintenance of the heavy burden of showing substantial prejudice as a result of joint trial, amounting to a miscarriage of justice." United States v. Perkins, 926 F.2d 1271, 1280 (1st Cir.1991).

Rivera offers three related grounds for her contention that the joint trial resulted in a miscarriage of justice: first, the substantial evidence against her codefendants was attributed to her and overshadowed her minor role in the conspiracy; second, the numerous recorded conversations among her codefendants were improperly imputed to her, whereas in fact nothing on the tapes implicated her in any illegal activity; third, she was found guilty by reason of her marital association with Angel Figueroa.

The evidence was sufficient to prompt a rational juror to conclude, beyond a reasonable doubt, that Rivera was a founding member of the conspiracy who was responsible for all actions in furtherance of the conspiracy. See, e.g., United States v. Crocker, 788 F.2d 802, 806 (1st Cir.1986); United States v. Cranston, 686 F.2d 56, 62 (1st Cir.1982). Mendoza testified that, during their conversation on the plane, Rivera promoted the illicit agreement which led to the attempt to purchase cocaine. Although the jury was entitled to credit Mendoza's uncorroborated testimony, it no doubt found the credibility determination less problematic in light of the evidence that a later tape-recorded meeting confirmed that Mendoza and Rivera had met and that their conversation on the plane had been related to Angel. Other testimony indicated that Rivera played a significant role in arranging negotiations for the cocaine purchase. Thus, there was ample evidence that Rivera, far from being a peripheral participant, promoted the conspiracy and actively furthered its purpose.

Even though she did not participate in the taped conversations between Mendoza and other coconspirators, the coconspirators' statements were admissible against Rivera. See, e.g., United States v. Sabatino, 943 F.2d 94, 96 (1st Cir.1991) ("[U]nder a basic tenet of traditional conspiracy theory, ... a conspirator is responsible for acts his or her co-conspirators executed during the existence and in furtherance of the conspiracy"); Perkins, 926 F.2d at 1281 (taped remarks of husband admissible against wife once it could be inferred they were involved in the same conspiracy). The "evidentiary spillover" claim is groundless, as the evidence was directly admissible against Rivera.

The court was not required to sever the trial simply because Rivera's spouse was a codefendant. At least where the marital status results in no special evidentiary problems, the mere fact that coconspirators are married does not warrant severance provided sufficient evidence is presented against each. Id. at 1282 (evidence that wife was knowing participant in cocaine sale obviated any special evidentiary problem stemming from marriage to codefendant). The evidence established that Rivera independently embraced the overture from Mendoza, and actively promoted the illicit agreement to distribute cocaine by facilitating the subsequent negotiations for the purchase of cocaine. The direct evidence against Rivera was sufficient to support her convictions.

Finally, even assuming some evidentiary spillover, any prejudice was minimized by the limiting instructions given before...