U.S. v. Cruz

• Decision Date: 02 April 2004
• Docket Number: No. 02-1458.,02-1458.
• Citation: 363 F.3d 187
• Parties: UNITED STATES of America, Appellee, v. Tommy CRUZ, Luis Rodriguez, Defendants-Appellants, Carlos Medina, Defendant.
• Court: U.S. Court of Appeals — Second Circuit

363 F.3d 187

UNITED STATES of America, Appellee, v. Tommy CRUZ, Luis Rodriguez, Defendants-Appellants, Carlos Medina, Defendant.

No. 02-1458.

United States Court of Appeals, Second Circuit.

Argued October 21, 2003.

Decided April 2, 2004.

COPYRIGHT MATERIAL OMITTED

Jeremy G. Epstein, New York City (William Hauptman, Shearman & Sterling, New York City, of counsel), for Appellant Tommy Cruz.

Noah Perlman, Assistant United States Attorney, Eastern District of New York, Brooklyn, N.Y. (Roslynn R. Mauskopf, United States Attorney, Susan Corkery, Assistant United States Attorney, Eastern District of New York, Brooklyn, NY, of counsel), for Appellee.

Before: OAKES, MESKILL and B.D. PARKER, Circuit Judges.

MESKILL, Circuit Judge:

Defendant-appellant Tommy Cruz was convicted of possession with intent to distribute heroin following a jury trial in the United States District Court for the Eastern District of New York, Ross, J. Cruz now appeals from that judgment. He contends that he was wrongfully convicted on an aiding and abetting theory after the district court erroneously admitted the expert testimony of a Special Agent from the Drug Enforcement Administration (DEA). For the reasons that follow, we agree that the court erred. We also conclude that, even if we were to take into account the improperly admitted testimony, the government failed to introduce sufficient evidence such that a reasonable trier of fact could find Cruz guilty beyond a reasonable doubt. Accordingly, we reverse Cruz's conviction and remand the case to the district court with instructions to enter a judgment of acquittal.

BACKGROUND

Several years ago, a team of DEA agents worked with a paid informant to investigate the activities of Carlos Medina. Eventually, Brian Fleming, the case agent assigned by the DEA to manage the operation, directed the informant, Enrique Ramos, to meet with Medina at a Boston Market in Queens, New York and to purchase approximately 900 grams of heroin from him. In accordance with these instructions, Ramos spoke with Medina and arranged to meet him at the restaurant on December 13, 2000, for the purpose of buying the heroin.

On the Friday before this narcotics transaction took place, defendant Cruz was approached by an intermediary who apparently asked Cruz if he would assault several Ecuadorian men in exchange for $200. When Cruz agreed to do so, the intermediary arranged for a follow-up meeting with him on December 12, 2000. Medina attended this subsequent meeting and discussed the planned assault with Cruz. After Cruz affirmed his agreement to assault the Ecuadorians, he was told that he needed to return for a third meeting on December 13, 2000. However, on arriving the following day, Cruz was informed that events were not proceeding according to plan. Cruz was told that he initially needed "to watch" Medina's "back" while Medina finalized a "deal." He also learned that the so-called "deal" would be taking place at the aforementioned Boston Market.

In the interim, Fleming had assigned a surveillance unit of DEA agents to observe the Market and the surrounding area in an effort to monitor the meeting between Medina and Ramos. These agents were on hand conducting their surveillance when Cruz and his co-defendant, Luis Rodriguez, arrived at the Market in a Lincoln Town Car. According to the agents, Cruz and Rodriguez suspiciously examined vehicles in the nearby area as they approached the restaurant as if they were engaged in "countersurveillance" against law enforcement scrutiny.

Cruz and Rodriguez eventually entered the Boston Market, ordered food at the counter, and took a seat towards the side of the restaurant. Subsequently, Medina also arrived at the Market and sat at a different table with Ramos, who had arrived earlier and had been waiting for him. Ramos and Medina discussed the narcotics transaction and agreed that Medina would sell Ramos the heroin "right there." Neither Cruz nor Rodriguez had any contact with either Medina or Ramos while they were in the restaurant.

After Medina and Ramos finalized their negotiations, Medina left the Boston Market. Not long thereafter, DEA agents noted that Cruz and Rodriguez also left the Market and drove off in the Lincoln Town Car. More than half an hour later, the agents observed the Town Car return to the Market. Medina stepped out of the vehicle's front-side passenger seat and waved towards Ramos. In response, Ramos walked over to the car, stepped inside, and sat down in the back. At that stage, he noticed that Cruz was sitting in the driver's seat. Medina eventually directed Ramos' attention towards a telephone box that had been placed in the back of the vehicle behind the driver's seat. When Ramos opened the box, he found heroin hidden inside a plastic bag within the box.

Once he saw the drugs, Ramos informed Medina that he would soon return with the money for the heroin. When he stepped out of the Lincoln Town Car, Ramos gave a pre-arranged signal to the DEA agents. The signal informed the agents that he had seen the heroin and that they should move in to effectuate arrests. After they received the signal, the DEA agents closed in on the car. They seized the heroin and arrested both Medina and Cruz.

In the wake of these arrests, the government filed an initial indictment on January 9, 2001, charging Cruz, Medina and Rodriguez with two counts: (1) conspiracy to distribute a substance containing heroin in an amount of one kilogram or more in violation of 21 U.S.C. §§ 841 and 846 as well as 18 U.S.C. § 3551 et seq., and (2) possession with intent to distribute a substance containing heroin in an amount of one kilogram or more in violation of 21 U.S.C. § 841, 18 U.S.C. § 2, and 18 U.S.C. § 3551 et seq. The government subsequently filed a superseding indictment that charged only Cruz and Rodriguez with these counts and reduced the amount of heroin they allegedly possessed with the intent to distribute and conspired to possess with the intent to distribute from "one kilogram or more" to "100 grams or more."

During the course of a two-day jury trial held in July 2001, the government called, among other witnesses, DEA Special Agent Mark Tully to testify against Cruz. Tully was one of the agents that had been on hand to observe the events at the Boston Market on December 13, 2000, and had arrested Cruz. Although Tully testified about several different subjects, only one particular aspect of his testimony concerns us here.

After his arrest, Cruz made a number of statements to Tully. At Cruz's trial, Tully testified regarding the substance of these post-arrest statements. Cruz apparently told Tully that he had been at the Boston Market and in the Lincoln Town Car "to watch [Medina's] back while he did business." Cruz also told Fleming that he had not known that he had agreed to take part in a "drug deal." Rather, Cruz explained that he "knew it was some kind of a deal, but not a drug deal." Cruz subsequently reiterated to Tully that he had been asked "to watch [Medina's] back while he [did] a deal or [did] business." When Tully inquired regarding whether Cruz understood that the deal in question was a "drug deal," Cruz explained that he "knew it was a deal that was going on, but [he] didn't know what kind of deal." Cruz purportedly informed Tully that he was not certain whether he and Medina "were going to be picking up money or if [they] were going to be delivering drugs, [he] didn't know which one it was."

The prosecutor ultimately asked Tully to explain what he thought Cruz "meant when he said he was there to do a deal — to watch somebody's back while he did a deal?" Cruz's counsel objected to that question and the court suggested that such information "could be elicited if [the prosecutor] develop[ed] [Tully's] expertise." This evidentiary ruling led the prosecutor to ask Tully several questions about his experience with narcotics investigations. Over the course of these inquiries, the prosecutor once again asked Tully what the agent thought Cruz meant when the defendant told Tully that "he was there to watch somebody do a deal." When defense counsel objected to that question, the district court itself asked Tully whether, in the agent's "experience," he had heard the phrase "[t]here to watch someone's back" and suggested that the prosecutor should further "develop" that line of testimony. The prosecutor took the court's suggestion to heart by asking Tully what the aforementioned phrase meant. According to the record, Tully responded by explaining as follows:

In my experience, when narcotics transactions happen like this you have people, lookouts for you. There are people that are out there to watch your back, to make sure that either if law enforcement are in the area that they're there to try to detect them before you go about and do your business, or that the person that you're doing the deal with is not trying to set you up that they're trying to rob your drugs from you or rob your money from you. You have people out there as lookouts conducting countersurveillance to detect either someone else that is looking to rob you or law enforcement that are trying to arrest you.

The government eventually called several other witnesses and then rested its case. Thereafter, Cruz's defense counsel moved for a judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure. He argued, inter alia, that "[b]ased on the totality of the evidence, even in the light most favorable to the government, there was no evidence that... Cruz knew ... that the drug deal was going to happen." When the court denied that motion, defense counsel did not call any witnesses to testify on Cruz's behalf. The jury subsequently acquitted Cruz of conspiring to distribute a substance containing heroin but found him guilty of possession with intent to distribute a substance containing heroin in an amount of 100 grams or more.

The district court sentenced Cruz to 110...