U.S. v. Carlos Cruz, 02-1847.

• Decision Date: 19 December 2003
• Docket Number: No. 02-1847.,No. 02-1970.,02-1847.,02-1970.
• Citation: 352 F.3d 499
• Parties: UNITED STATES of America, Appellee, v. Jean CARLOS CRUZ, Defendant, Appellant. United States of America, Appellee, v. Luis Lugo-Velez, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

352 F.3d 499

UNITED STATES of America, Appellee, v. Jean CARLOS CRUZ, Defendant, Appellant.

United States of America, Appellee, v. Luis Lugo-Velez, Defendant, Appellant.

No. 02-1847.

No. 02-1970.

United States Court of Appeals, First Circuit.

Heard July 28, 2003.

Decided December 19, 2003.

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Rachel Brill, for appellant Luis Lugo-Velez.

Ignacio Fernández de Lahongrais, for appellant Jean Carlos Cruz.

Thomas Klumper, Assistant United States Attorney with whom H.S. Garcia, United States Attorney and Sonia I. Torres, Assistant United States Attorney were on brief, for appellee.

Before SELYA, Circuit Judge, STAPLETON,^* Senior Circuit Judge, and HOWARD, Circuit Judge.

HOWARD, Circuit Judge.

Following a five-day trial, a jury convicted co-defendants Luis Lugo-Velez and Jean Carlos Cruz of, inter alia, possession of narcotics with intent to distribute and possession of firearms — including machine guns — in furtherance of a drug-trafficking scheme. These consolidated appeals require us to decide (1) whether the district court erred in various evidentiary rulings, and (2) whether the evidence was sufficient to support the verdicts. Having carefully reviewed the record, we affirm the convictions of both defendants.

I.

We recite the facts in the light most favorable to the verdicts. See United States v. Echeverri, 982 F.2d 675, 676 (1st Cir.1993).

On October 15, 2001, Puerto Rico Police Agent Angel Aviles parked an unmarked vehicle in front of dead-end Street 2A in Toa Alta and began surveillance of an area known within the police department to be a drug point. Agent Aviles immediately focused his attention on three individuals — later identified as Lugo, Cruz, and Jose Gonzalez Bernard — standing 40 feet away from him, outside a bar known as "The Pub." Each man was carrying a firearm on his waistline; in addition, Cruz had a "fanny pack" strapped across his chest and appeared "ready to receive money from some person."

Agent Aviles next observed an unidentified man, who was carrying money, approach Cruz from an unidentified vehicle that had just arrived on the scene. After encountering Cruz, the individual returned to his vehicle and drove away. The substance of this meeting — namely, whether there had been an actual exchange of drugs or money — was not witnessed.

At one point during his surveillance, Agent Aviles saw Gonzalez disappear around the side of The Pub; when Gonzalez reappeared, he and another unidentified individual were carrying a pillowcase that had rifle barrels protruding from it.¹ These men then lifted the pillowcase, placed it into a nearby garbage can, and, with the assistance of Lugo and Cruz, covered it with a blanket and some trash. After witnessing these activities, Agent Aviles immediately called for backup.

When the reinforcement agents arrived three to four minutes later, backup Agent Luis Sales Morales noticed that Cruz was carrying a pistol on his waistline. During an ensuing chase, Agent Sales saw Cruz toss his firearm into an overgrown lot. Although the handgun was never recovered Cruz was eventually arrested as he tried to scale a fence. At the time of his arrest, Cruz was carrying a nine-millimeter magazine, $526 cash, and a fanny pack (strapped across his chest) containing substances that later tested positive for cocaine base, heroin, and cocaine.

Meanwhile, backup Agent Nancy Mendez was pursuing Gonzalez. When she caught him just outside The Pub, Gonzalez attempted to draw his weapon. In response, Agent Mendez grabbed his arm and was dragged inside The Pub. There, during her struggle with Gonzalez, she observed Lugo for the first time; he was standing behind the bar with a gun in his hand. Agent Aviles testified as to how and when Lugo had entered The Pub: "I saw Mendez who was going to arrest the defendants, and they started running. At that moment, I started running, following her. So she went into [The Pub] after, going after the defendants."

Gonzalez eventually surrendered and was taken outside The Pub and arrested. Once outside, Agent Mendez told another agent to go inside The Pub, arrest Lugo, and seize the firearm that she had seen him conceal between a bottle rack and the bar.

Lugo was arrested without incident. Although no drugs or weapons were found on his person, agents successfully recovered the pistol — a loaded nine-millimeter Smith & Wesson — that Lugo had hidden behind the bar.

The principal suspects having been apprehended, Agent Aviles next seized the pillowcase from the garbage can. Inside the pillowcase were two Romanian Arms rifles that, as an expert witness later testified, had been converted into machine guns, as well as an arsenal rifle, a pistol, and large amounts of ammunition. The serial numbers on the two machine guns and the pistol had been removed, and all four firearms were loaded.

On November 8, 2001, a federal grand jury returned an indictment charging Lugo, Cruz, and Gonzalez with several offenses: Count One alleged that the defendants, aiding and abetting each other, knowingly possessed cocaine base with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; Count Two alleged that the defendants, aiding and abetting each other, knowingly possessed heroin with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; Count Three alleged that the defendants, aiding and abetting each other, knowingly possessed cocaine with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2;² Count Five alleged that the defendants, aiding and abetting each other, possessed a firearm in furtherance of a drug-trafficking scheme, in violation of 18 U.S.C. § 924(c)(1) and 18 U.S.C. § 2; Count Six alleged that the defendants, aiding and abetting each other, knowingly possessed a firearm shipped or transported in interstate commerce and from which the manufacturer's serial number had been obliterated or removed, in violation of 18 U.S.C. § 922(k) and 18 U.S.C. § 2; and Count Seven alleged that the defendants, aiding and abetting each other, possessed a machine gun, in violation of 18 U.S.C. § 922(o) and 18 U.S.C. § 2.

On February 13, 2002, a joint trial began, at which Cruz and Lugo were co-defendants.³ On February 20th, the jury convicted both defendants on all counts. Thereafter, Cruz was sentenced to concurrent prison terms of 63 months for Counts One, Two, and Three and 60 months for Counts Six and Seven. Lugo was sentenced to concurrent prison terms of 51 months for Counts One, Two, and Three and 60 months for Counts Six and Seven. Additionally, because the jury found that each defendant had possessed a machine gun in furtherance of a drug-trafficking scheme, both Cruz and Lugo were sentenced to 360 months of imprisonment for Count Five, to be served consecutive to their other sentences.⁴ See 18 U.S.C. § 924(c)(1)(B).

These appeals followed.

II.

We are presented with two issues on appeal: (1) whether the district court erred in various evidentiary rulings; and (2) whether the evidence was sufficient to support the verdicts.

Given these separate issues, two standards of review apply. First, we review a district court's decision to admit evidence for abuse of discretion. See Larch v. Mansfield Mun. Elec. Dept., 272 F.3d 63, 72 (1st Cir.2001); see also Udemba v. Nicoli, 237 F.3d 8, 14 (1st Cir.2001) ("[A] trial court enjoys considerable discretion in connection with the admission or exclusion of evidence...."). Second, in deciding sufficiency challenges, "we review all the evidence, direct and circumstantial, in the light most favorable to the prosecution, drawing all reasonable inferences consistent with the verdict, and avoiding credibility judgments, to determine whether a rational jury could have found guilt beyond a reasonable doubt."⁵ United States v. Baltas, 236 F.3d 27, 35 (1st Cir.2001) (citations omitted); see also United States v. Ruiz, 105 F.3d 1492, 1495 (1st Cir.1997) (noting that "we review de novo the defendants' challenge to the evidentiary sufficiency of their convictions, construing the evidence in the light most favorable to the government").

A. Evidentiary Rulings

Lugo contends that the district court improperly admitted (1) "unduly prejudicial testimony concerning the presence of a drug point on 2A Street near The Pub," and (2) "various untagged weapons with obliterated serial numbers, [specifically] the two machine guns."⁶ We find no abuse of discretion.

(1) The Drug-Point Testimony

Despite objection, Agent Aviles was allowed to testify at trial as follows:

Q: Now, the young man to this side of the table [Cruz], can you please tell us what, if anything, was he doing, aside from the fact that he had a weapon in his waist?

A: [Cruz] was standing there. He had like a brown bag, and he was ready to receive money from some person. I have knowledge that that is the drug point of that sector.

Q: Excuse me. Before you go into anything else —

COURT: Let him finish.

A: Personally myself I've arrested several people at that location for violation of weapons and drug laws.

Lugo argues that this testimony should have been excluded because "[Agent] Aviles' assertions [regarding the `drug point'] were unsupported by statistics, personal knowledge, or details-and they were unduly prejudicial." As best we can tell,⁷ Lugo is challenging the drug-point testimony on two separate bases: (a) lack of foundation, in violation of Fed.R.Evid. 602; and (b) unfair prejudice, in violation of Fed.R.Evid. 403. Neither is convincing.⁸

First, contrary to Lugo's assertion, the government did, in fact, present evidence sufficient to support a finding that Agent Aviles had the requisite personal knowledge of the area's history. See Fed.R.Evid. 602 ("A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to...