U.S. v. Cruz

• Citation: 981 F.2d 613
• Decision Date: 18 December 1992
• Docket Number: No. 91-1047,91-1047
• Parties: UNITED STATES of America, Appellee, v. Joseph CRUZ, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 613

981 F.2d 613

UNITED STATES of America, Appellee, v. Joseph CRUZ, Defendant, Appellant.

No. 91-1047.

United States Court of Appeals, First Circuit.

Argued June 5, 1992.

Decided Dec. 18, 1992.

William A. Brown, Boston, MA, for defendant, appellant.

Jeffrey A. Locke, Asst. U.S. Atty., with whom A. John Pappalardo, U.S. Atty., and Geoffrey E. Hobart, Asst. U.S. Atty., Boston, MA, were on brief, for appellee.

Before CYR, Circuit Judge, RONEY, ^* Senior Circuit Judge, and PIERAS, ^** District Judge.

CYR, Circuit Judge.

Joseph Cruz appeals his conviction on one count of conspiring to possess heroin, with intent to distribute, within 100 feet of a public playground in violation of 21 U.S.C. §§ 846, 841(a)(1) and 845a, and on two counts of possessing heroin, with intent to distribute, within the same environs in violation of 21 U.S.C. §§ 841(a)(1) and 845a. ¹ Appellant questions the sufficiency of the evidence and challenges the sixty-three month prison sentence imposed by the district court. We affirm the judgment of conviction and sentence, but remand to the district court to permit modification of its sentencing memorandum and compliance with Fed.R.Crim.P. 32(c)(3)(D).

I BACKGROUND

In April 1990, the United States Drug Enforcement Agency ("DEA") and the Lowell Police Department launched an investigation into suspected heroin distribution at the residence of appellant's brother, Dennis Cruz, who occupied the first floor of a two-family dwelling abutting a public playground in Lowell, Massachusetts. The DEA enlisted the aid of a cooperating individual, Esmiraldo Ruiz, Jr., who purchased heroin at the residence on six occasions.

                The investigation led to the indictment of appellant Joseph Cruz on one count of conspiring to possess heroin for distribution within 100 feet of a public playground (count one) and six counts of possessing heroin for distribution within 100 feet of a public playground (counts two through six and count eight).   Appellant was acquitted of the charges in counts two, three, six and eight
                

As appellant disputes the sufficiency of the evidence, we relate it in the light most favorable to the challenged verdicts, with a view to whether a rational juror fairly could have found guilt beyond a reasonable doubt. See United States v. Tejeda, 974 F.2d 210, 212 (1st Cir.1992) (citing United States v. Ortiz, 966 F.2d 707, 711 (1st Cir.1992), and United States v. Vargas, 945 F.2d 426, 427-28 (1st Cir.1991)).

The investigation began on April 5, 1990. Esmiraldo Ruiz, Jr. testified that he arrived at the Dennis Cruz residence with $1,800 in DEA cash and spoke briefly with Dennis Cruz, who instructed him to give the money to appellant Joseph Cruz. Ruiz testified that he handed the money to appellant, who allegedly counted it and then conducted a pat-down weapon search of Ruiz. Ruiz alleged that appellant handed him 100 "bags" or "squares," later determined to contain 4.8 grams of heroin. ²

On April 20, Ruiz visited the Dennis Cruz residence a second time, with $3,600 in DEA cash and a radio transmitter. The ensuing conversation was not received by law enforcement agents, however, because of a malfunction in the transmitter. Ruiz testified that he told appellant, who was in the yard when Ruiz arrived, that he wanted to buy more heroin. Appellant allegedly summoned brother Dennis, who led Ruiz to the basement and accepted the $3,600. Ruiz testified that appellant then went upstairs to the first floor apartment. Several minutes later, appellant allegedly entered the basement and handed Ruiz 200 bags, later found to contain 12.8 grams of heroin. ³

On April 27, Ruiz arrived at the Dennis Cruz residence carrying $3,600 in DEA cash and a functioning transmitter disguised as a beeper. Dennis Cruz directed Ruiz to the basement of the house, where he encountered appellant, gave him the $3,600, and received 200 bags containing 13.8 grams of heroin. As Ruiz was leaving the basement, he overheard Dennis instructing appellant and another individual to follow Ruiz to the train station. A DEA agent, posing as a taxi driver, waited for Ruiz at the curb and drove him to the train station. The agent identified appellant Joseph Cruz as one of the individuals who followed the DEA agent's vehicle to the train station and watched while Ruiz purchased a train ticket. The April 27 transaction formed the basis for count four, on which appellant was convicted.

The next transaction took place on May 3. The DEA again utilized the beeper/transmitter device, but also conducted video surveillance of the rear of the Dennis Cruz residence. The DEA provided Ruiz with $3,600 and transported him in a taxi to the Dennis Cruz residence, where he met appellant in the yard and said he wanted to buy 200 bags of heroin. When Dennis arrived, appellant left the yard and went to the first floor apartment. At Dennis' instruction, Ruiz let the taxi go. Ruiz gave the cash to Dennis, and a few minutes later appellant returned and handed Ruiz 200 bags containing 12.6 grams of heroin. Dennis and appellant then drove Ruiz to the train station. The May 3 transaction formed the basis for count five, on which appellant was convicted.

The next transaction took place on May 8, under audio and video surveillance. Dennis Cruz and his wife drove Ruiz from the train station to the Cruz residence. Dennis provided Ruiz with 400 bags of heroin in exchange for $6,000 in DEA cash. Later analysis established that the bags contained 24.6 grams of heroin. At trial, a On May 15, the sixth and final transaction was consummated, when Ruiz purchased 218 bags of heroin from Dennis Cruz for $3,270, while under DEA audio and video surveillance. The bags contained 13.7 grams of heroin. ⁵

DEA agent identified appellant as the person who was depicted in the videotape closing the basement door after the transaction took place; however, Ruiz testified on cross-examination that appellant was not directly involved in the May 8 transaction. ⁴

On May 18, search and arrest warrants were executed at the Cruz residence. Above the ceiling tiles in the unoccupied apartment on the second floor, the police discovered 1,423 bags of white powder containing 80.3 grams of heroin. Two cots were found in a basement bedroom. Personal papers and identification belonging to appellant were found on one cot, beneath which was a brown paper bag filled with empty yellow bags identical to those found filled with white powder in the unoccupied second floor apartment. A set of scales also was found in the basement. The Dennis Cruz apartment on the first floor contained police scanners, walkie-talkies, beepers, and a clear plastic bag filled with rubber bands and tied to two boxes of clear plastic baggies. Dennis Cruz and another individual were arrested. Appellant was not at the Cruz residence on the day of the search, but was arrested several days later. ⁶

II DISCUSSION

A. Sufficiency of the Evidence

1. Substantive Offenses

Appellant challenges the sufficiency of the evidence supporting the substantive offenses charged in counts four and five. He says he was a "passive bystander" at the Dennis Cruz residence, present only by virtue of his fraternal relationship with Dennis. As "mere presence" is insufficient to support a conviction, United States v. Mehtala, 578 F.2d 6, 9 (1st Cir.1978), appellant argues that the jury verdicts on the substantive counts cannot stand. We do not agree.

The trial evidence revealed more than "mere presence." It revealed that appellant was an active participant in the substantive offenses charged in counts four and five, as clearly stated by Ruiz at trial, corroborated by the DEA agent, reflected in the transcripts of recorded conversations, and even depicted on videotape. Indeed, the evidence came close to admitting of no other interpretation than that given it by the jury.

2. Conspiracy

Appellant likewise challenges the sufficiency of the evidence supporting the conspiracy conviction under count one, claiming that because he was not implicated in the conspiracy at the time of its alleged commencement on April 5, and because he was acquitted of the substantive offenses charged in counts two, three, six and eight, he lacked the requisite specific intent.

A sustainable conspiracy prosecution requires proof beyond a reasonable doubt that the conspirators intended to agree and to commit whatever substantive criminal offense may have been the object of their unlawful agreement. Tejeda, 974 F.2d at 212; United States v. Lopez, 944 F.2d 33, 39 (1st Cir.1991); United States v. Sanchez, 917 F.2d 607, 610 (1st Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1625, 113 L.Ed.2d 722 (1991). The illicit agreement may be "express or tacit" and may be proven by direct or circumstantial evidence. United States v. Rivera-Santiago, 872 F.2d 1073, 1079 (1st Cir.1989), cert. denied, 492 U.S. 910, 109 S.Ct. 3227, 106 L.Ed.2d 576 (1989). See also Tejeda, 974 F.2d at 212; Sanchez, 917 F.2d at 610.

Appellant overlooks the direct and circumstantial evidence underlying the well-grounded guilty verdicts on the substantive charges in counts four and five, see supra at Pt. II.A.1, which was ample to establish the conspiracy alleged in count one and appellant's membership in it. The government was not required to prove that appellant knew about, or took part in, all aspects of the conspiracy, Rivera-Santiago, 872 F.2d at 1079 (proof of "the essential nature of the plan and [the defendant's] connection[ ] with it" is enough) (quoting Blumenthal v. United States, 332 U.S. 539, 557, 68 S.Ct. 248, 256, 92 L.Ed. 154 (1947)), but only that appellant intended to agree with a co-conspirator to possess heroin, for distribution, within 100 feet of a public playground. ⁷ We conclude that a rational jury could have found, beyond a reasonable doubt, that appellant was a member of the criminal conspiracy alleged in count one.

B. Sentencing

1. 18 U.S.C. § 3553(c)

At the heart of the guideline...