U.S. v. Berrios

• Decision Date: 06 October 1997
• Docket Number: Nos. 95-2035,95-2038,95-2036,97-1121,s. 95-2035
• Citation: 132 F.3d 834
• Parties: UNITED STATES, Appellee, v. George BERRIOS, a/k/a Antonio Candelario, Defendant-Appellant. UNITED STATES, Appellee, v. Mario MENDEZ, a/k/a Pablo, Defendant-Appellant. UNITED STATES, Appellee, v. Pedro GONZALEZ, a/k/a Frank Castillo-Perez, Defendant-Appellant. UNITED STATES, Appellee, v. Hannover Alberto SEGURA, Defendant-Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 834

132 F.3d 834

UNITED STATES, Appellee, v. George BERRIOS, a/k/a Antonio Candelario, Defendant-Appellant.

UNITED STATES, Appellee, v. Mario MENDEZ, a/k/a Pablo, Defendant-Appellant.

UNITED STATES, Appellee, v. Pedro GONZALEZ, a/k/a Frank Castillo-Perez, Defendant-Appellant.

UNITED STATES, Appellee, v. Hannover Alberto SEGURA, Defendant-Appellant.

Nos. 95-2035, 95-2036, 95-2038, 97-1121.

United States Court of Appeals, First Circuit.

Heard Oct. 6, 1997.

Decided Jan. 6, 1998.

Malcolm J. Barach, Boston, MA, by appointment of the Court, for appellant George Berros.

Jose A. Espinosa, with whom Paul F. Murphy and MacDonald & Murphy, Boston, MA, were on brief for appellant Mario Mendez.

Paul J. Garrity, Boston, MA, by appointment of the Court, for appellant Pedro Gonzalez.

Karl R.D. Suchecki, by appointment of the Court, with whom Jennifer Petersen and Petersen & Suchecki, Boston, MA, were on brief for appellant Hannover Alberto Segura.

William F. Sinnott, Assistant U.S. Attorney, with whom Donald K. Stern, United States Attorney, Boston, MA, was on brief for appellee.

Before TORRUELLA, Chief Judge, GODBOLD, ^* Senior Circuit Judge, and BARBADORO, ^** District Judge.

GODBOLD, Senior Circuit Judge.

This appeal arises from the conviction of four defendants, Mario Mendez, Pedro Gonzalez, George Berros, and Hannover Alberto Segura of various offenses relating to possession and distribution of heroin. Their arrests and convictions were the result of an extended undercover and surveillance operation conducted by law enforcement agents seeking to discover the source of an increased heroin trade in Portland, Maine. Each defendant was convicted of participating in a conspiracy to possess and distribute heroin and various other crimes. They appeal, questioning their convictions and their sentences. We AFFIRM the convictions and sentences.

FACTUAL SUMMARY

The following factual synopsis summarizes evidence introduced at trial. The facts are Between July 8, 1994 and August 23, 1994, Agent Scott Pelletier of the Maine Drug Enforcement Agency engaged in four heroin transactions with a man named Pablo, later proved to be Mario Mendez. Pelletier had been introduced to Pablo by Lawrence Freeman, a cooperating government informant familiar with regional drug trade. Each of the four transactions took place in Lowell, Massachusetts, where all four defendants resided. In each transaction Pelletier purchased between 50 and 500 bags of heroin from Pablo. During the course of these transactions, Pelletier saw Gonzalez accompanying and assisting Mendez several times and witnessed Segura conducting counter-surveillance at two different locations on July 8, 1994. After the fourth transaction between Pelletier and Mendez, which took place at a residence located at 36 Park Street, law enforcement officers began arresting individuals involved. Gonzalez was found hiding near the Merrimack River, and Mendez was arrested outside 36 Park Street, later shown to be the location of the heroin "store" that the conspiracy operated.

resolved in the light most favorable to the verdict and consistent with the record, as is required by our standard of review in an appeal from a final judgment of conviction. U.S. v. Maraj, 947 F.2d 520, 522 (1st Cir.1991).

The police then executed a search warrant for 173 University Avenue, also in Lowell, Massachusetts. Based on extensive surveillance and investigation the officers had identified numerous phone calls between the residence of Mendez and 173 University Avenue and between 36 Park Street and 173 University. Upon entering the apartment they observed Segura running from the bathroom where plastic bags containing white powder were going down the toilet. Also, within 173 University Avenue, the officers seized numerous items of drug distribution paraphernalia, including scales, sieves, and a "No Way Out" stamp used for labeling the type of heroin purchased by Pelletier from Mendez. They also found a large amount of cash, 107.6 grams of crack cocaine and a loaded .357 Magnum handgun.

Police next executed a search warrant at 205 and 203 University Avenue where they arrested George Berros, the resident. There the officers seized large amounts of heroin, crack cocaine, and various items identified as distribution paraphernalia and found a notebook containing the telephone number for 173 University Avenue.

Other evidence at trial included the testimony of Christopher Coughlin, who admitted purchasing heroin and crack from the defendants. Coughlin identified Mendez as Pablo and Gonzalez as a man who participated in the transactions but whose name he did not know.

After a nineteen day trial, the jury returned a verdict convicting each defendant of various counts of the nine count indictment. All appellants were convicted of Count I, which charged that the defendants had participated in a conspiracy to possess with intent to distribute and to distribute heroin in violation of 21 U.S.C. § 846. After considering the presentencing report of probation officers, as well as the objections of both parties to the report, the district court sentenced the four defendant to various prison terms ranging from 84 months for Berros to 151 months for Mendez.

DISCUSSION

We have considered the arguments of each defendant and find no error in their convictions or sentences. Accordingly, we affirm. Because each individual raises different and numerous issues and each is represented by different counsel, we will address the contentions of each defendant separately with some necessary repetition.

I. Mendez

Mendez was convicted of Counts I-V, consisting of various charges relating to possession and conspiracy to possess heroin and cocaine with the intent to distribute. He was sentenced to 151 months for each conviction to be served concurrently. The sentence was the result of several enhancements which Mendez contests and a significant downward departure. The district court explained the downward departure by noting that the We affirm Mendez's convictions and sentences.

lengthy sentences for possession of cocaine base (crack) were unjustified because the conspiracy was primarily one to distribute heroin rather than crack. The court found that, by including the amount of confiscated crack cocaine in the sentencing calculation, the sentence of each defendant was increased by as much as six levels. The court acknowledged that its reason could be construed as a discouraged ground for departure but found that the case fell out of the heartland of prescribed conduct, thus warranting departure. This downward departure is not questioned by the government; therefore, we do not reach whether it was proper. The departure resulted in an offense level of 35 for Mendez. Based on his criminal history category he received a 151 month sentence.

A. Testimony of defense witness Fortin

Mendez contends that his conviction should be reversed because he was precluded from offering the testimony of Loretta Fortin. The essence of her testimony would have been that Mendez was not the "Pablo" she was introduced to during a drug sale in June of 1994. Furthermore, Mendez called Fortin to discuss her meeting with Special Agent Connick in August of 1994, during which she identified the photograph of another defendant as Pablo. The relevancy of this testimony is that an individual named Pablo was the supposed leader of the conspiracy and the dealer with whom the government initially dealt. Differences existed as to which member of the conspiracy was actually Pablo, but several witnesses testified that Mendez was in fact Pablo and that Mendez carried a beeper with the number belonging to Pablo.

The substance of Loretta Fortin's proposed testimony was that she had one meeting with Pablo in which he entered the back seat of her car while she remained in the front. Her husband introduced the man as Pablo, and they conducted a drug transaction. Fortin was willing to testify that Mendez was not the Pablo that entered her car and that she selected a different defendant as Pablo from police photographs. The court excluded this testimony because it was based on the inadmissable hearsay of the introduction of Pablo by her husband. Mendez contends that this exclusion was erroneous because Federal Rule of Evidence 801(d)(1)(C) provides that if a witness is available for cross examination, prior statements of identification are not hearsay. This assertion misses the point. Fortin's proposed testimony about her husband's introduction of Pablo created the hearsay problem, not her prior identification statements to Agent Connick. To make her testimony credible she had to admit that her knowledge of Pablo's identity was based on the hearsay statement of her husband--"this is Pablo."

By echoing her husband's introduction of Pablo, Fortin's proposed testimony meets the prerequisites of hearsay. The introduction of Pablo is a statement not made by the declarant in testimony offered to prove the truth of the matter asserted. For Loretta Fortin's testimony to be tenable the statement made by her husband must have been true. Because we have no way of verifying that Mr. Fortin was sufficiently familiar with Pablo to identify him to Mrs. Fortin, her testimony about Pablo is classic hearsay and was properly excluded.

Accordingly, the district court did not err in disallowing Fortin's testimony on hearsay grounds. Moreover, if error, it would have been harmless. Even if the introduction was not hearsay, given Fortin's limited interaction with Pablo, the weight of her testimony could not overcome the substantial testimony of other credible witnesses who had more contact with Mendez/Pablo and who testified that Mendez was in fact Pablo. See U.S. v. Southard, 700 F.2d 1, 21 (1st Cir.1983) (harmless error to improperly exclude admissible evidence as hearsay where substantial evidence existed to convict defendant).

B. Mendez' sentence was based on acquitted conduct

Mendez...