U.S. v. De La Cruz

• Decision Date: 01 February 2008
• Docket Number: No. 07-2515.,No. 06-1659.,06-1659.,07-2515.
• Citation: 514 F.3d 121
• Parties: UNITED STATES of America; Plaintiff, v. Luis DE LA CRUZ, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

514 F.3d 121

UNITED STATES of America; Plaintiff, v. Luis DE LA CRUZ, Defendant, Appellant.

No. 06-1659.

No. 07-2515.

United States Court of Appeals, First Circuit.

Heard May 8, 2007.

Decided February 1, 2008.

Paul J. Haley, with whom Law Office of Paul J. Haley was on brief, for appellant.

Jeffrey P. Singdahlsen, Attorney, U.S. Department of Justice Criminal Division, Appellate Section, with whom Michael J. Sullivan, United States Attorney, and Rachel E. Hershfang, Assistant United States Attorney, were on brief, for the United States.

Before BOUDIN, Chief Judge, SELYA, Senior Circuit Judge and STAFFORD,^* Senior District Judge.

STAFFORD, Senior District Judge.

Luis De La Cruz ("Defendant") appeals from the district court's final judgment of conviction entered on a jury verdict of "guilty" as to two offenses: (1) conspiracy to distribute and to possess with the intent to distribute one kilogram or more of heroin, in violation of 21 U.S.C. § 846 (Count One); and (2) possession with the intent to distribute and distribution of heroin, in violation of 21 U.S.C. § 841(a)(1) (Count Two). Defendant also appeals the district court's denial of his motion for new trial. We affirm.

I.

For a number of years, beginning at least in 1999 and continuing until his arrest in 2001, Defendant—also known as Carlos—was the leader of an organization that distributed heroin in and around Lawrence, Massachusetts. From his suppliers, Defendant received heroin that was compressed into pellets approximately the size of a thumb. Called fingers, the pellets each contained eight to twelve grams of heroin. With the help of his runners, Defendant processed the bulk heroin and placed the resulting powder into small baggies. Ten baggies were then grouped together—each group of ten constituting a bundle—and placed in a plastic sandwich bag for distribution.

Customers would typically call Defendant on his cell phone to arrange a buy. Defendant, or one of his runners, would later meet the customer at a specified public place, then move to a more private place to complete the sale. On March 8, 2001, one of Defendant's regular customers, Alison Tracy ("Tracy"), called Defendant to arrange the purchase of 25 bundles of heroin. While Tracy intended to use some of the heroin herself, she also intended to sell eight of the bundles to one of her customers, Jesse Flynn ("Flynn").

As they had on prior occasions, Tracy and Flynn drove to Lawrence to pick up the heroin. Upon arriving in Lawrence, using Flynn's cell phone, Tracy called Defendant to get directions for meeting. Defendant told Tracy to wait at a local Dunkin Donuts store. From the donut store, Defendant led Tracy and Flynn to a quiet street where he sold Tracy 25 bundles (250 baggies) of heroin. Some of these bundles contained baggies marked with black eagles; the remainder of the bundles contained baggies marked with blue stars.

On that same March 8th day, Tracy also bought 25 bundles of heroin from Richard Frias, whose street name was Miguel. The baggies in the bundles that she purchased from Miguel were marked with red beetles and blue dolphins. From the total bundles that she bought that day, Tracy sold Flynn eight bundles: four bundles— marked with blue stars and black eagles— that came from Defendant, and four bundles—marked with blue dolphins—that came from Miguel.

On March 9, 2001, Bryan Wallace ("Wallace"), one of Flynn's childhood friends, asked Flynn for some heroin. Flynn initially refused to sell to Wallace but soon after relented, agreeing to meet Wallace that evening at a restaurant in New Hampshire. After eating dinner, Flynn sold Wallace two bundles of heroin, one bundle containing haggles marked with blue stars and one bundle containing baggies marked with black eagles.

Wallace's girlfriend, Shay Kelleher ("Kelleher"), stopped at Wallace's home to visit later that night. Kelleher found Wallace looking pale and sluggish, with red eyes and constricted pupils. Although Wallace appeared "unmistakably different" to Kelleher, he did not appear to be in danger. She had previously seen him high on various drugs, and he had never before suffered any adverse consequences from his drug usage. Wallace showed Kelleher some baggies that he said contained heroin bought from a friend. Kelleher described the baggies as being marked with small birds resembling the Harley-Davidson black eagle logo.

The next evening, when Kelleher again stopped by Wallace's home, she found Wallace's dead body. Blood had pooled in his legs, and a blood-tinged foam cone had formed over his mouth. When the police arrived, they found eleven torn and empty baggies—some marked with black eagles and some with blue stars—inside a garbage can, and seven unopened haggles— marked with blue stars—on the kitchenette counter. The baggies tested positive for heroin, as did the drug paraphernalia that was found in Wallace's room.

On the evening that Wallace's body was found, Wallace's mother told investigators that her son had received a telephone call from his friend, Jesse Flynn, the previous afternoon. Arrested on March 20, 2001, Flynn told investigators that he bought heroin on March 8 from Tracy and that he sold some of that heroin to Wallace on March 9.

On March 21, based on the information provided, by Flynn, investigators interviewed Tracy, who was then in custody on a parole violation. Admitting that she sold heroin to Flynn, Tracy agreed to place controlled calls to her suppliers, Carlos and Miguel. Tracy's cooperation led investigators the next day, March 22, to (1) interview and then arrest Defendant, or Carlos; and (2) arrest Roberto Herrera ("Herrera"), one of Miguel's runners, as he was attempting to deliver heroin to Tracy. When arrested, Herrera had in his possession ten bundles of heroin, some marked with black eagles and some with blue stars, the same markings that appeared on the baggies sold by Defendant to Tracy on March 8.

Defendant was initially charged—by indictment dated April 4, 2001—with one count of conspiracy to possess with the intent to distribute heroin, in violation of 21 U.S.C. § 846. There was no allegation in the initial indictment that the conspiracy resulted in the death of Bryan Wallace.

A three-count superseding indictment was returned on October 24, 2002. Count One again alleged a section 846 conspiracy. In Counts Two and Three, it was alleged that, on or about March 8 and March 9, 2001, respectively, Defendant possessed with the intent to distribute, and did distribute, a mixture or substance containing a detectable amount of heroin, in violation of 21 U.S.C. § 841, or aided and abetted the same in violation of 18 U.S.C. § 2. In all three counts, it was alleged that the offense resulted in the death of Bryan Wallace.

A second superseding indictment was returned on December 8, 2004. The second superseding indictment contained two counts: a section 846 conspiracy count and a section 841 substantive offense count. In both counts, it was alleged that the offense resulted in the death of Bryan Wallace. In addition, notice was given of three additional factors: (1) that Defendant was accountable for at least 1 kilogram, but not more than 3 kilograms, of heroin; (2) that Defendant was a manager and supervisor of a criminal activity that involved at least five participants; and (3) that death and serious bodily injury resulted from the use of the heroin distributed by Defendant.

On January 5, 2005, Defendant filed an emergency motion to go to trial on the first superseding indictment. The emergency motion was filed the day he was to be arraigned on the second superseding indictment, which was just four days before trial on the first superseding indictment was scheduled to begin. Defendant argued that he should be permitted to go to trial on the first, rather than the second, superseding indictment because he was then ready to go to trial on the first superseding indictment and because he would be "severely prejudiced" by the government's delay in adding the "expansive charges" contained in the second superseding indictment. While he noted in his motion that he had been detained for close to four years without a trial, Defendant did not expressly move to dismiss the second superseding indictment on speedy trial grounds. Indeed, he made no mention whatsoever of the Speedy Trial Act in his motion. To the contrary, Defendant made it clear that he was not then moving to dismiss the second superseding indictment, expressly stating that he "reserved[d] his right to bring a motion to dismiss the second. Superseding Indictment."

The district court denied Defendant's emergency motion, stating: "Denied for failure to show that it is an appropriate order for this court to make that asserted facts alleged in the Second Superseding indictment should be disregarded in the fair disposition of this case." Defendant did not thereafter file a motion to dismiss the second superseding indictment on speedy trial grounds.

A two-week jury trial began on April 25, 2005. The jury found Defendant guilty of the two offenses, or counts, charged in the second superseding indictment. As to the conspiracy count, the jury found, beyond a reasonable doubt, that the conspiracy involved 1 kilogram or more of a mixture or substance containing a detectable amount of heroin, that the ingestion of heroin was a but-for cause of Bryan Wallace's death, that the heroin causing Wallace's death was distributed as part of the charged conspiracy, and that Defendant himself was in the chain of distribution for the heroin causing Wallace's death. As to the substantive count, the jury found, beyond a reasonable doubt, that ingestion of heroin was a but-for cause of Wallace's death, and that the heroin causing Wallace's death passed through Defendant's hands.

On May 12, 2005, the day he was convicted, Defendant filed a two-sentence motion for new trial, requesting—in his motion—additional time to file a memorandum...