U.S. v. Dellosantos

• Decision Date: 16 August 2011
• Docket Number: Nos. 09–2135,09–2670.,s. 09–2135
• Citation: 649 F.3d 109
• Parties: UNITED STATES of America, Appellee,v.Ramón DELLOSANTOS, a/k/a Ramón Delosantos, a/k/a Ramón Delassantos, a/k/a Ramón Santos, a/k/a Monstrito, Defendant, Appellant.United States of America, Appellee,v.Richard W. Szpyt, a/k/a Zip, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

649 F.3d 109

UNITED STATES of America, Appellee,

v.Ramón DELLOSANTOS, a/k/a Ramón Delosantos, a/k/a Ramón Delassantos, a/k/a Ramón Santos, a/k/a Monstrito, Defendant, Appellant.United States of America, Appellee,

v.Richard W. Szpyt, a/k/a Zip, Defendant, Appellant.

Nos. 09–2135

09–2670.

United States Court of Appeals, First Circuit.

Heard Jan. 3, 2011.Decided Aug. 16, 2011.

James S. Hewes, for appellant Dellosantos.Mary A. Davis, with whom Tisdale & Davis. P.A., was on brief for appellant Szpyt.Margaret D. McGaughey, Appellate Chief, with whom Thomas E. Delahanty II, United States Attorney, were on brief for appellee.Before TORRUELLA, STAHL, and HOWARD, Circuit Judges.TORRUELLA, Circuit Judge.

On October 22, 2008, appellants Ramón Dellosantos and Richard W. Szpyt (collectively “the Defendants”), together with sixteen other individuals, ¹ were charged in a multiple-count superseding indictment. Count 1 alleged that all individuals (including the Defendants), in violation of 21 U.S.C. §§ 841(a)(1), 846, “in the District of Maine and elsewhere ... knowingly and intentionally conspired with one another and with others ... to commit offenses against the United States, namely, distribution and possession with intent to distribute controlled substances, including 5 kilograms or more of cocaine, and marijuana, and did aid and abet such conduct.” A trial followed, in which a jury found Szpyt and Dellosantos guilty of the conduct charged in Count 1. Szpyt and Dellosantos appealed.²

Because we find that the evidence at trial against both Dellosantos and Szpyt prejudicially varied from the charge in Count 1 of the indictment, we vacate their convictions.³

I. Facts and Background

We review the evidence and all the reasonable inferences that arise therefrom in the light most favorable to the verdict. See United States v. Hatch, 434 F.3d 1, 4 (1st Cir.2006).

In presenting its case, the government relied in part on cooperating witnesses. Plinio Vizcaíno, testifying pursuant to a plea agreement, testified extensively against Dellosantos. Vizcaíno admitted that from 2004 to 2007 he distributed cocaine to a handful of individuals, including Dellosantos,⁴ in Lawrence and Haverhill, Massachusetts. Over the course of several years, Vizcaíno supplied Dellosantos with cocaine ranging in quantity from 125 grams to several kilograms at a time. Vizcaíno also identified his own and Dellosantos' voice in multiple recorded telephone calls, which included discussions about cocaine. Vizcaíno testified that Dellosantos had told him that he resold some of the cocaine to “hippies” who rode motorcycles in New Hampshire and Maine.

The government's primary cooperating witness was Robert L. Sanborn, who also testified pursuant to a plea agreement. Sanborn's testimony was generally focused on drug distribution in Maine and he did not directly implicate Dellosantos in any illegal activity. Sanborn admitted that he had been a vice-president and “enforcer” of a motorcycle gang known as the “Iron Horsemen,” and that Szpyt had been the president of the gang's Maine chapter, which consisted of roughly ten to fifteen members. Sanborn also explained that Szpyt owned the Iron Horsemen clubhouse in Old Orchard Beach, Maine. Despite his leadership position in the gang, however, Szpyt lived outside of Maine, in Haverhill, Massachusetts.

Sanborn testified that in March 2005 he began selling cocaine, which he purchased from James E. Weston, a fellow member of the Iron Horsemen, who was in turn supplied by Szpyt. After a few months of this distribution scheme, Sanborn and Szpyt eliminated Weston as a middleman and began dealing directly with each other. Although Sanborn occasionally received cocaine from other sources, this arrangement between Szpyt and Sanborn continued until Sanborn ceased distributing cocaine in late 2007 or early 2008 following his arrest.

Sanborn also admitted that in the late summer or early fall of 2005 he began distributing marijuana in addition to cocaine. There is no evidence that Sanborn consulted with or received approval from Szpyt when he started to distribute marijuana, or at any point thereafter. Sanborn's first source for marijuana was Carl Demarco, but, in early 2006, Sanborn began receiving his marijuana from Lee P. Chase, whom he had known “for years over the bikes.” Chase, in turn, obtained the marijuana from an individual named Danny Boivin. Sanborn testified that in 2006 he started selling marijuana to Sherwood K. Jordan on a regular basis, ten pounds at a time. On a couple of occasions, however, there was a reversal of roles, and Sanborn would buy a supply of marijuana from Jordan, “anywhere from 10 to 20” pounds. Sanborn also admitted to selling (approximately every two weeks) anywhere from eight to ten pounds of marijuana to Charlie Green, a fellow member of the Iron Horsemen. Green generally received his marijuana from a different gang member, Robert A. Bouthot, but turned to Sanborn when Bouthot ran out of his supply.

Sanborn testified in detail about his cocaine purchases from Szpyt, who Sanborn said was also supplying cocaine to other members of the Iron Horsemen. During his testimony, Sanborn explained the meaning of several recorded telephone calls. These calls included conversations between Sanborn and Szpyt about cocaine transactions, conversations between Sanborn and Chase or Jordan about marijuana transactions (none of which mentioned either Dellosantos or Szpyt), and conversations in which Sanborn discusses selling drugs to and collecting payments from customers.

Sanborn testified that he had around twenty customers. Some of these customers only purchased marijuana, some only purchased cocaine, and some purchased both. Sanborn explained that his “lifelong friend,” Walter D. Towle, Jr., assisted him with both the marijuana and cocaine operations. At times, people would visit Sanborn's garage for various drug transactions, which were conducted with varying amounts of discretion depending on who was present. Szpyt would sometimes deliver cocaine to Sanborn at this same garage, and on other occasions Sanborn, or someone on his behalf, would travel to Massachusetts to pick up the cocaine from Szpyt.

Sanborn testified that he would at times purchase cocaine using proceeds from his marijuana sales, and vice versa. Sanborn also admitted that, with the help of his wife, he maintained ledgers to reflect all of his drug transactions that were done on credit. He started this practice after a dispute with Szpyt over the payment of $12,000, which Sanborn ended up paying because he did not keep adequate records of his nefarious dealings.

Sanborn asserted that both his marijuana and cocaine activities ceased in January 2008, a few months after he was arrested.

The government also called a handful of other cooperating witnesses.⁵ In essence, these witnesses corroborated Sanborn's testimony, within their area of knowledge and participation, about the distribution of cocaine and marijuana. None of them implicated either Dellosantos or Szpyt in marijuana transactions. For example, Towle confirmed his involvement in Sanborn's operations, which he said included traveling with Sanborn, on roughly ten occasions, to Haverhill, Massachusetts, to pick up cocaine from Szpyt. Notably, Lara Sanborn (Robert Sanborn's wife) testified that she was especially careful to record—in the aforementioned ledgers—her husband's cocaine transactions with Szpyt, because Szpyt tended to argue over them. The ledgers demonstrated that Sanborn paid his cocaine debt to Szpyt by transferring cash and other items, such as motorcycles and cars. However, other than one occasion where Sanborn reduced $750 from his cocaine debt by paying Szpyt with half a pound of marijuana, Sanborn's drug ledgers did not connect either Dellosantos or Szpyt with Sanborn's marijuana distribution. Furthermore, neither these cooperating witnesses nor any of the recorded conversations introduced at trial connected Szpyt or Dellosantos to the marijuana distribution. In fact, with regards to Dellosantos, none of these witnesses acknowledged ever having met, seen, or known his name.

In addition to cooperating witnesses, the government called a handful of law enforcement officers, including Brian T. Tully, Mark Tully,⁶ Corey Sweatt, and Michael Hayes. Mark Tully, a special agent with the Drug Enforcement Administration (“DEA”), testified that in October 2006 he was contacted by DEA agents investigating a drug trafficking organization operating in the Atlanta area. These agents told Mark Tully, who was assigned to the DEA's Boston office at the time, that they had intercepted calls involving an individual in Massachusetts who turned out to be Vizcaíno. Mark Tully and other agents began an investigation, which resulted in the arrest of around fifteen individuals, including Vizcaíno, and the seizure of seventeen kilograms of cocaine.

Brian Tully, also a special agent with the DEA, testified about his involvement in the investigation of Robert Sanborn and others for drug trafficking. During his testimony, he recounted a series of events that occurred on September 12, 2007. On that date, Brian Tully observed Dellosantos, seated in a white van parked in front of Szpyt's residence in Haverhill, talking to Szpyt who was standing by his window. After Dellosantos departed the area, a surveilling agent asked the Massachusetts State Police to stop the van. As Dellosantos' vehicle was stopped on the side of the road, Brian Tully, who was observing the stop, noticed Szpyt drive past the location on two or three occasions. Walter Hanley, a sergeant with the Massachusetts State Police, eventually searched Dellosantos' vehicle and found a total of $6,000 in cash from both the van's center console and Dellosantos' person. ⁷ Brian Tully was in turn informed about this discovery, as well as Dellosantos' claim that he had receipts accounting for the cash as the proceeds of sales...