U.S. v. Cruz, 108

• Decision Date: 21 December 1992
• Docket Number: No. 108,D,108
• Citation: 981 F.2d 659
• Parties: 37 Fed. R. Evid. Serv. 611 UNITED STATES of America, Appellee, v. Domingo LaBoy CRUZ, Defendant, Maximino Bonifacio, also known as Nery, Defendant-Appellant. ocket 91-1456.
• Court: U.S. Court of Appeals — Second Circuit

Page 659

981 F.2d 659

37 Fed. R. Evid. Serv. 611

UNITED STATES of America, Appellee, v. Domingo LaBoy CRUZ, Defendant Maximino Bonifacio, also known as Nery, Defendant-Appellant.

No. 108, Docket 91-1456.

United States Court of Appeals Second Circuit.

Argued Sept. 21, 1992.

Decided Dec. 21, 1992.

Gaspar M. Castillo, Jr., Albany, NY, for defendant-appellant.

Donald T. Kinsella, Asst. U.S. Atty., Albany, NY (Gary L. Sharpe, U.S. Atty. N.D. New York, of counsel), for appellee.

Before: VAN GRAAFEILAND, WINTER and MAHONEY, Circuit Judges.

WINTER, Circuit Judge:

Maximino Bonifacio appeals from his conviction by a jury before Judge Cholakis for conspiracy to possess cocaine with the intent to distribute in violation of 21 U.S.C. § 846 (1988), and for possession of cocaine with the intent to distribute and for distribution in violation of 21 U.S.C. § 841(a)(1) (1988), and 18 U.S.C. § 2 (1988). We reverse on the ground that expert testimony was improperly admitted. This testimony concerned the behavior of drug dealers from the Albany area seeking drugs from the Washington Heights area of New York City, and the modus operandi of drug trafficking rings in that area, including the role of a "broker" and the ethnicity of the area. Because the testimony was designed to bolster the credibility of a government fact-witness by mirroring his version of events and injected the ethnicity of Bonifacio as evidence of criminal conduct, we reverse.

BACKGROUND

The government sought to prove that Bonifacio had acted as a "broker" between Domingo LaBoy, a drug dealer in the Albany area, styled by the parties as the "Capital District," and suppliers located in the Washington Heights area of Manhattan. The government's case was based largely upon the testimony of Juan Baez, a government informant, and LaBoy. Baez testified that, on November 13, 1990, he bought two ounces of cocaine from LaBoy in Albany and that, approximately one week later LaBoy testified that, subsequent to Baez's first approach, he and Bonifacio traveled to New York to purchase cocaine on five occasions. Each transaction was conducted in a similar manner. According to LaBoy, he and Bonifacio would travel to West 184th Street in Manhattan to meet a person known to Bonifacio. This person would take them upstairs to an apartment where two others would be waiting. Bonifacio would tell them the quantity of drugs they were seeking, and one of the men would then leave the apartment, returning approximately fifteen minutes later with cocaine. Generally, Bonifacio would check the cocaine and help count the money. After returning to the Capital District, LaBoy would meet alone with Baez to transfer the drugs.

                he accompanied LaBoy to "the Dominican's house" where the three of them discussed the purchase of seven or eight ounces of cocaine.   Bonifacio asked Baez if he wanted to go to New York, but Baez declined.   Bonifacio then made a call on a pay phone and reported back that "everything was ready in New York."   The following day, Baez again met LaBoy and purchased seven ounces of cocaine.   Baez did not learn the identity of "the Dominican" until trial, when he identified Bonifacio.  (During Baez's testimony, both he and the prosecutor referred to Bonifacio as "the Dominican.")
                

The last witness for the prosecution was Special Agent Marano. Marano testified both as a fact-witness (regarding Bonifacio's arrest) and as an expert witness. Marano's expert testimony described typical drug trafficking operations in the Washington Heights area and the function of a broker in drug trafficking between Washington Heights and the Capital District. Bonifacio's trial counsel objected to the testimony as irrelevant. We quote the pertinent portions of Marano's direct testimony at some length:

Q Let me ask you this, Special Agent Marano: Have you ever worked in New York City?

A I spent ten years working in the New York City Office of the DEA.

Q And are you familiar with 184th and St. Nicholas Avenue in Manhattan?

A I am.

Q What particular neighborhood is that?

A It's a neighborhood that is surrounded by high-rise multi-family dwellings. It is what I would describe, especially to someone from the Capital District, as a tremendously overpopulated neighborhood.

Q Does it have a name?

A Washington Heights, Fort Washington area. Washington Heights area. It's just north of the George Washington Bridge. And as of the last five to ten years, it has become inundated with drug dealing.

* * * * * *

Q In the course of your work, have you been involved in a number of investigations, even recently, into the way drug selling or cocaine selling operations are run in New York City, particularly in the Washington Heights or Fort Washington area?

A Yes, I have. It's a much more complex procedure. In that particular area, which does have a very high Hispanic population--by Hispanic, I mean people from Spanish speaking countries or territories, Puerto Rican people, Colombian people, Dominican, Nicaraguan, Honduran, for example.

Cocaine entrepreneurs from all over the state, people who want to make a buck in cocaine, will be brought to a dealer in Manhattan by what we call a broker or middleman. So, for example, an entrepreneur or dealer from Troy or Schenectady would travel to the New York City area, particularly the area under discussion, the Washington Heights, discuss and meet a wholesaler. A cocaine wholesaler. They negotiate a deal. When the deal is struck, the wholesaler will have someone bring the cocaine to that individual and that individual will bring the cocaine back up to the Capital District.

Now the person from the Capital District very often will never go to the exact Q When the person from the Capital District is brought to an apartment in this particular area, could you tell us how that person comes into--makes the exchange of money for drugs?

                locations, the apartment, where the cocaine is being kept.   It is a very complex series of steps to get the cocaine from where it is being hidden to the customer.   Because these dealers have learned over many years and over many arrests that the more difficult, the more complex they make it for the police to find the cocaine, the longer they can keep the cocaine in their possession and away from the police.   So the cocaine may be stored in one of a thousand apartments in a multi-apartment complex scenario
                

A The individual that comes down from the Capital District is usually brought down by a broker, as I've said. The broker will beep that someone, the wholesale cocaine dealer, by calling up that man's beeper. That man, the cocaine dealer, will then call back the broker at a telephone number that is programmed into his beeper. They will arrange a location at which to meet and there the negotiations will transpire. Most of the time the people involved, even though they may have been dealing this way for a number of months, even years, will not actually know the other individual's identity. They may know each other under pseudo names or street names like Gotco or Sneakers or Curly or something like that. This is so they can better insulate themselves from arrest.

In summation, the government relied upon the quoted testimony. We quote the pertinent portions of that summation:

Where does Mr. Bonifacio, the defendant here, come into this case? And that's the obvious question and that's the question that you have to answer. You heard Special Agent Marano testify about how drug operations are run in this particular area, our area here in the Capital District. The people will go down to New York, they will obtain various quantities of cocaine and then it will be packaged in amounts that allow them to either resell to other dealers or sell to users.... The cocaine is obtained in New York City, and Special Agent Marano described for you the way that the cocaine dealing operations work in the northern section of Manhattan, Washington Heights, Fort Washington area, that would include the vicinity of 184th Street and St. Nicholas Avenue. And he described how people are brought by a broker from this area down to the area, because the person from up here does not know the people in New York. The people in New York are only going to, obviously, deal with people they know. The person they know brings the customer from up here to an apartment where the person sits, where the transaction is negotiated. The people leave the apartment, go to an intermediate location, as Special Agent Marano described it, obtain the cocaine where it's hidden--or they go to the area where it is stashed, bring it to the location where the buyer is, where they only have to give the buyer the amount he is buying. So if there is police involvement, they're insulated. Their main stash is insulated. The buyer is sitting in the apartment, he or she does not know where the person has gone from the apartment in order to get the cocaine from the stash. And that is precisely what Domingo LaBoy described to you as what Mr. Bonifacio was doing with respect to him.

Domingo LaBoy. There is no proof he had any connection in New York City. He was brought to the city by Mr. Bonifacio, he was taken to 184th Street, he was taken up to a fourth floor apartment. They sat in the apartment, the person left the apartment, came back with the cocaine, money was paid, Mr. Bonifacio and the other guy weighed it, looked at it to check it out to make sure it was okay, good stuff, the money was counted and they left with the cocaine and went back to Troy and sold it. And that is precisely what Mr. Bonifacio's role is in this case. It's just how Special Agent Marano described how the operations work. If you use your common sense and think about it, it is a perfectly Bonifacio took the stand and testified that he never had discussions with LaBoy or Baez concerning the buying or selling of cocaine. He stated...