U.S. v. Cruz-Rodriguez

• Decision Date: 08 September 2008
• Docket Number: No. 05-2493.,No. 05-2492.,05-2492.,05-2493.
• Citation: 541 F.3d 19
• Court: U.S. Court of Appeals — First Circuit
• Parties: UNITED STATES of America, Appellee, v. Carlos D. CRUZ-RODRÍGUEZ, Felix Reyes-De León, Defendants, Appellants.

541 F.3d 19

UNITED STATES of America, Appellee, v. Carlos D. CRUZ-RODRÍGUEZ, Felix Reyes-De León, Defendants, Appellants.

No. 05-2492.

No. 05-2493.

United States Court of Appeals, First Circuit.

Heard April 3, 2007.

Decided September 8, 2008.

Johnny Rivera Gonzales for appellant, Carlos D. Cruz-Rodríguez.

Raymond L. Sanchez-Maceira for appellant, Felix Reyes De León.

Thomas F. Klumper, Assistant United States Attorney, with whom Rosa Emilia Rodriguez-Velez, United States Attorney and Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

Before LYNCH, Chief Judge, HOWARD, Circuit Judge, and YOUNG,^* District Judge.

HOWARD, Circuit Judge.

An indictment charged twenty-six defendants with crimes arising from their involvement in a large drug distribution network that operated in a Puerto Rico housing project. These are appeals by two of the defendants — Carlos D. Cruz-Rodríguez (Cruz) and Felix Reyes-de León (Reyes).

After an eight-day trial a jury convicted Cruz and Reyes of conspiring to possess with the intent to distribute cocaine, crack cocaine, and heroin within 1000 feet of both a school and a public housing facility. See 21 U.S.C. §§ 841, 846, 860 (count one). The jury also convicted Cruz of two other offenses stemming from the drug distribution conspiracy — conspiring to use, carry, or possess a firearm in furtherance of a drug trafficking crime, see 18 U.S.C. § 924(o) (count two), and possessing a firearm at a place he knew or had reasonable cause to believe was a school zone, see 18 U.S.C. § 922(q)(2)(A) (count three). The district court sentenced Cruz to 202 months' imprisonment on counts one and two and 60 months' imprisonment on count three to be followed by eight years of supervised release. The prison sentences were to be served consecutively. The court sentenced Reyes to 324 months' imprisonment on the sole count on which he was convicted, count one, and to three years of supervised release. Reyes's incarcerative sentence was consecutive to the undischarged portion of a state sentence Reyes was serving.

Cruz and Reyes appeal both their convictions and sentences. Each presses a sufficiency challenge to his conviction; Cruz argues that the evidence failed to implicate him in any conspiracy and Reyes contends that the evidence implicated him in a conspiracy different from the one charged.¹ Each also claims that the district court committed a host of errors, mostly procedural, in sentencing. We affirm both the convictions and the sentences.

I. Facts

We provide most of the facts here, adding more or elaborating when discussing particular issues. Because the facts stated here are relevant to the appellants' sufficiency claims, we present them in the light most favorable to the jury's verdict. United States v. Portela, 167 F.3d 687, 692 (1st Cir.1999).

The crimes charged in this case arise from the operation of a drug distribution network in a Puerto Rico housing project. The network, which operated from mid-September 2001 to mid-March 2003, was hierarchical.

At the top was Orlando Malpica. Malpica controlled a number of "drug points" in the housing project. These drug points were located in the same general area and each was within 1000 feet of two public schools.

Below Malpica were various individuals who rented the drug points from him. Collectively, these "point owners" sold a variety of drugs including marijuana, cocaine, crack cocaine, and heroin.

Working beneath the drug point owners were the drug "runners" and "enforcers." The runners delivered drugs from the drug points to the "sellers" who were the ground-level distributors. These runners would also relay a portion of the profits gleaned from the sales to the drug point owners. The enforcers were charged with protecting the sellers and protecting the drug points from out-of-project predators — local gangs that desired control of the points. To serve this function, they carried firearms. Only they and others associated with the conspiracy were permitted to possess firearms at the project.

After investigation, the government sought and received an indictment from the grand jury. Twenty-six individuals, including Cruz and Reyes, were charged with crimes arising from the scheme. Cruz and Reyes elected to go to trial and were tried together.²

At trial, the government introduced testimonial evidence implicating Cruz as a drug point owner. A cooperating witness, who had lived with Cruz for a period of time, testified that Cruz was a drug point owner, that he sold a variety of drugs from his point, that he paid rent to Malpica in the form of money and drugs, and that he and another point owner informed her of their plan to open an additional point and asked her in advance to run drugs for the point. This witness also testified that, during the time of the conspiracy, Cruz possessed an automatic firearm and carried it with him while at the project. Two other government witnesses corroborated much of this testimony and otherwise testified consistently with it.

With respect to Reyes, the government presented evidence portraying him as a jack of all trades — a runner, enforcer, and seller. Witnesses testified that he ran drugs for point owners, that he worked as an enforcer for Alex Trujillo — a point owner who would later take over the top spot in the conspiracy while Malpica was in prison, and that he sold crack cocaine to ground-level customers.

The jury found both Cruz and Reyes guilty on the distribution conspiracy count and Cruz alone guilty on the firearm conspiracy count and the firearm possession count. Challenging the sufficiency of the evidence, both defendants filed motions for judgments of acquittal on all counts. See Fed.R.Crim.P. 29(c). The district court, finding the evidence adequate, denied the motions.

II. Discussion

A. Trial

1. Sufficiency claims

We first address the appellants' sufficiency claims, examining each in turn. Because both Cruz and Reyes moved for a judgment of acquittal on sufficiency grounds, our review of these claims is de novo. See United States v. Jimené-Torres, 435 F.3d 3, 8 (1st Cir.2006).

In assessing sufficiency, we examine the evidence, both direct and circumstantial, in the light most favorable to the prosecution and decide whether that evidence, including all plausible inferences drawn therefrom, would allow a rational factfinder to conclude beyond a reasonable doubt that the defendant committed the charged crime. United States v. Fenton, 367 F.3d 14, 18 (1st Cir.2004). When examining the evidence, we keep in mind that "[c]redibility issues must be resolved in favor of the verdict." United States v. Perez-Ruiz, 353 F.3d 1, 7 (1st Cir.2003).

Cruz argues that the evidence was insufficient to show either that he conspired to distribute drugs or to possess a firearm. Our inquiry is thus focused on whether a rational factfinder could have found that he was guilty of conspiring to distribute drugs near a housing project and of conspiring to use, carry, or possess a firearm in furtherance of a drug trafficking crime.³

To prove a conspiracy existed, the government must prove beyond a reasonable doubt: (1) that an agreement existed to commit the particular crime; (2) that the defendant knew of the agreement; and (3) that he voluntarily participated in it. United States v. Gomez, 255 F.3d 31, 35 (1st Cir.2001). The conspiratorial agreement may be "express or tacit and may be proved by direct or circumstantial evidence." Id. (quoting United States v. Sepulveda, 15 F.3d 1161, 1173 (1st Cir. 1993) (internal quotation marks omitted)).

Cruz's sufficiency argument is straightforward. He contends that the government failed to introduce any evidence, whether direct or circumstantial, showing that he conspired to deal drugs or that he used, carried, or possessed a firearm — much less that he conspired to use, carry, or possess one in furtherance of a drug trafficking crime. He likens the government's prosecution of him to a witch hunt in which he was targeted merely because he associated with or was friends with some drug dealers. This association, in Cruz's view, is the only thing the government proved at trial and, citing established authority, he argues that associating with conspirators is not enough to support a conviction for conspiracy. See e.g., United States v. Nelson-Rodriguez, 319 F.3d 12, 28 (1st Cir.2003) ("`Mere association' with the conspirators ... will not, standing alone, be sufficient for conviction.") (citing United States v. Gomez-Pabon, 911 F.2d 847, 853 (1st Cir.1990)).

The record does not support Cruz's claim of innocence. The government introduced a videotape of a meeting of armed conspirators at which Cruz was present, supporting an inference that he was more than a bystander. See United States v. Llinas, 373 F.3d 26, 31 (1st Cir. 2004) (noting that defendant's close association with other conspirators is a relevant factor for the jury to consider). But there was much more. Additional evidence came in the form of testimony from a government informant and two cooperating witnesses. These witnesses detailed the drug distribution network operating within the housing project. They testified that Orlando Malpica was a drug kingpin who controlled all the drug points in the housing project and that drug point owners had to seek permission from Malpica to operate a drug point and would pay him rent for this privilege.

In addition to this general testimony about Malpica's operation, prosecution witnesses testified specifically about Cruz's role in the operation. One cooperating witness who lived with Cruz during the alleged conspiracy period — and who happened to be Malpica's niece — testified that Cruz was a drug point owner who sold marijuana and crack, that he paid rent to Malpica in the form of money and drugs, that he smuggled rent to Malpica when Malpica was in prison, and that he and another point owner asked her to run...