U.S. v. Colon-Diaz

• Decision Date: 26 March 2008
• Docket Number: No. 06-2550.,06-2550.
• Parties: UNITED STATES of America, Appellee, v. Edwin COLÓN-DÍAZ, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

521 F.3d 29

UNITED STATES of America, Appellee, v. Edwin COLÓN-DÍAZ, Defendant, Appellant.

No. 06-2550.

United States Court of Appeals, First Circuit.

Heard November 9, 2007.

Decided March 26, 2008.

Rafael F. Castro-Lang, for appellant.

Dina Ávila, Assistant United States Attorney, with whom Rosa E. Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and German A. Rieckehoff, Assistant United States Attorney, were on brief, for appellee.

Before TORRUELLA and HOWARD, Circuit Judges, and SMITH,^* District Judge.

TORRUELLA, Circuit Judge.

A jury convicted Edwin Colón-Díaz ("Colón") on five counts of drug offenses under 21 U.S.C. §§ 841(a)(1) and 846, and 18 U.S.C. § 2. He appeals these convictions, claiming that the district court committed a number of errors that, in the aggregate, constituted reversible error under the cumulative error doctrine articulated in United States v. Sepúlveda, 15 F.3d 1161, 1196 (1st Cir.1993). After thoroughly reviewing the record and considering the parties' arguments, we affirm Colón's convictions.

I. Background

We consider only those facts relevant to Colón's arguments on appeal, relating them "as the jury could have found them, drawing all inferences in the light most consistent with the jury's verdict." United States v. Milkiewicz, 470 F.3d 390, 392 (1st Cir.2006). Colón lived in Building 47 of the Vista Hermosa housing project in San Juan, Puerto Rico, where he ran a small grocery store. The Drug Enforcement Administration ("DEA") assembled a task force to investigate Colón as the suspected owner of a drug-selling location in front of Building 47 known as the "yellow point" for the yellow markings on the packaging in which certain drugs were sold. In particular, crack cocaine was sold in small plastic vials sealed with yellow caps. These vials of crack were called "yellow caps."

As part of the investigation, the DEA sent an informant, Wanda Romero, to the yellow point to buy yellow caps. The seller at the yellow point on this occasion was José Otero-Cruz ("Otero"), alias "Bebo," Colón's stepson. Romero and Otero had a conversation in which Otero informed her that he had yellow caps belonging to Colón, and Romero returned later with DEAfurnished money and bought the yellow caps from Otero. Again on DEA instructions, Romero went to the yellow point with Puerto Rico police officer and undercover DEA task-force member Janet López; Romero and López had a hidden audio-recording device. This time, the seller was Víctor Díaz, alias "Ne," who sold Romero and López drugs. Colón's name was not mentioned during this transaction.

Over the course of the investigation, federal agents gathered a considerable quantum of additional evidence that would later be presented at trial, including: (1) a video showing Colón in close proximity to the yellow point; (2) witnesses who said they saw Colón near the yellow point and that Colón appeared concerned with the goingson there; (3) the testimony of Colón's friend and fellow drug trafficker, Jesus Rivera-Santiago ("Rivera"), that Colón owned the yellow point; (4) the testimony of Colón's coconspirator Rafael Soto-Torres ("Soto") that Colón owned the yellow point and that Soto sold drugs at the yellow point on behalf of Colón; (5) evidence that a search of Colón's store turned up police scanners and surveillance cameras that were located both inside and outside the store, but no food or other goods on the shelves; (6) evidence that a search of an apartment belonging to Colón yielded a large amount of drugs, drug paraphernalia, cash, a cash counting machine, a police scanner, and some weapons; and (7) that Colón had made down payments of thousands of dollars on a number of expensive homes, sometimes in cash, even though he only registered a monthly income of $100.

Colón was eventually arrested and charged with conspiracy to possess with intent to distribute heroin, cocaine, cocaine base, and marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 846; and with aiding and abetting the possession with intent to distribute heroin, cocaine, cocaine base, and marijuana within 1,000 feet of an elementary school or park, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. A jury convicted Colón on all counts, and the district court sentenced him to twenty years' imprisonment. On appeal, Colón challenges a number of evidentiary rulings made at trial. He also complains of the Government's alleged destruction of certain "rough notes" taken during several interviews with a government informant who testified at trial. We detail these challenges, and the trial procedure giving rise to them, in the relevant parts of the discussion that follows.

II. Discussion

Colón argues that three sets of purported errors, taken together, justify reversal of his convictions under the cumulative error doctrine. See Sepúlveda, 15 F.3d at 1196. None of his arguments withstands scrutiny. We consider them in turn.

A. Limiting Instructions for the Romero, López, and Péerez Testimony Naming Colón as the Yellow Point's Owner

Colón's first assignment of error is that three government witnesses — Romero, López, and DEA task force member Pedro Pérez — gave highly prejudicial hearsay testimony naming him as the yellow point's owner, and that the district court's limiting instructions to the jury failed to cure the infirmity. Evidentiary rulings, including whether to admit evidence over a hearsay objection, are ordinarily reviewed for abuse of discretion. See United States v. García, 452 F.3d 36, 38 (1st Cir.2006); United States v. Washington, 434 F.3d 7, 14 (1st Cir.2006). However, we review Colón's challenge to the Romero, López, and Pérez limiting instructions only for plain error because Colón did not object to them when they were given at trial. See United States v. Marino, 277 F.3d 11, 28 (1st Cir.2002); see also United States v. de la Cruz-Paulino, 61 F.3d 986, 996 (1st Cir.1995) ("The `plain error' standard requires the reviewing court to ask: (1) whether there is an error; (2) whether the error is `plain,' a term synonymous with `clear' or `obvious'; and (3) whether the error affected substantial rights." (quoting United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993))).

While an out-of-court statement may be hearsay if offered to prove the truth of the matter asserted, it is nonhearsay if offered for some other purpose, including when offered "only for context." United States v. Bailey, 270 F.3d 83, 87 (1st Cir.2001) (internal quotation marks omitted). Where a given statement potentially qualifies as both hearsay and nonhearsay, the district court may admit it if it is relevant, and if the probative value of its intended nonhearsay use is not substantially outweighed by the risk of the jury considering it for the truth of the matter asserted. See Fed.R.Evid. 403; see also United States v. Mazza, 792 F.2d 1210, 1215 (1st Cir.1986). If so requested by a party, however, the district court must instruct the jury not to Consider the statement for its truth. See United States v. Linwood, 142 F.3d 418, 425 (7th Cir.1998) (citing Fed.R.Evid. 105).

After reviewing the record, it is clear that the district court adopted the proper procedure with respect to the impugned Romero and López testimony. Romero testified that federal agents asked her to go and purchase drugs from "[Colón]'s yellow point." Colón timely objected that this statement was hearsay and requested a limiting instruction. The district court instructed the jury as follows:

[Y]ou may not take that answer for its veracity, that it was [Colón]'s yellow point. You can only consider that answer for the fact that those were the instructions provided to ... the witness [Romero]. But, again, you may not take that, that it was [Colón]'s yellow point, for the veracity that in fact that was [Colón]'s yellow point.

Colón explicitly approved of this instruction in advance during a sidebar conference, and did not object when the court announced it to the jury.

For her part, López testified regarding what she and her supervisor said to Romero before proceeding to the yellow point to purchase drugs from Víctor Díaz: "[A]fter going over the job that was going to be carried out, we told [Romero] that we were going to go over to the housing project to buy drugs at a point of somebody called [Colón]." Colón again objected on hearsay grounds, and the district court instructed the jury as follows: "The Court instructs the jury that they are not to take that into consideration, other than they were told that it was [Colón], period. Not to take it for the truth, but that was the instruction that was provided to them." Colón did not object to this instruction.

Both these pieces of testimony lent themselves to at least two nonhearsay purposes: they described directions from one person to another, and they demonstrated why Romero — accompanied by López the second time — went to the yellow point. See Bailey, 270 F.3d at 87 ("directions from one individual to another ... do not constitute hearsay," and nonhearsay includes statements "`offered to ... supply a motive for the listener's action'" (citing United States v. Murphy, 193 F.3d 1, 6 n. 2 (1st Cir.1999))). On Colón's request, the court issued unequivocal instructions that the jury was not to consider the evidence as proof that Colón was the yellow point's owner.¹ We find no plain error here.

Colón's challenge to the Pérez testimony is similarly fruitless. Pérez testified that "on and off in the year 2002, the special investigation unit ... targeted the ... drug t[r]afficking organization led by Mr. Edwin Colón Díaz." Like the Romero and López testimony, this testimony could readily be taken for a nonhearsay purpose: it provided background and context for understanding the investigative steps of the task force, and an explanation for why the task force focused its efforts on Colón,...