U.S. v. Flecha-Maldonado

• Decision Date: 28 June 2004
• Docket Number: No. 02-2404.,02-2404.
• Citation: 373 F.3d 170
• Parties: UNITED STATES of America, Appellee, v. Miguel A. FLECHA-MALDONADO, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

373 F.3d 170

UNITED STATES of America, Appellee, v. Miguel A. FLECHA-MALDONADO, Defendant, Appellant.

No. 02-2404.

United States Court of Appeals, First Circuit.

Heard May 6, 2004.

Decided June 28, 2004.

COPYRIGHT MATERIAL OMITTED

John F. Cicilline, for appellant.

David Rivera, Assistant U.S. Attorney, with whom Sonia I. Torres-Pabón, Assistant U.S. Attorney, and H.S. Garcia, U.S. Attorney, were on brief, for appellee.

Before TORRUELLA, Circuit Judge, LYNCH, Circuit Judge, and LIPEZ, Circuit Judge.

LYNCH, Circuit Judge.

Miguel A. Flecha-Maldonado, a former officer of the Puerto Rico Police Department, was corrupted by the lure of drug money. After being caught in an FBI sting operation transporting what he believed to be cocaine for a Columbian drug trafficker, he was convicted by a jury of three federal crimes. He now appeals these convictions. We affirm. In doing so, we discuss several practices in federal criminal prosecutions in Puerto Rico that we discourage.

I.

For approximately one year, the FBI investigated widespread corruption within the Puerto Rico Police Department in an operation appropriately named "Honor Perdido," or "Lost Honor."

The investigation was triggered by the May 2000 arrest of a Puerto Rico police officer, Arturo Guillermo Ortiz-Colón, for the sale of heroin. Ortiz-Colón, in a post-arrest interview with FBI agent Jeffrey Pelaez, explained that for some time numerous officers in the Puerto Rico Police Department had been committing crimes, such as home invasions, robberies and theft. In exchange for leniency, Ortiz-Colón agreed to assist in FBI investigations by contacting corrupt police officers and recording incriminating statements. To facilitate these investigations, the FBI concealed Ortiz-Colón's arrest¹ and created a fake position for him as an FBI task force agent. The investigation included twelve different operations and targeted about thirty-two active and former Puerto Rico police officers.

One of the operations focused on a pair of officers, appellant Flecha-Maldonado and Mahmud Juma-Pineda, and one former officer, José Serrano-Beauvaix (a.k.a. "Pollo"). Ortiz-Colón had identified all three as having already participated in criminal activity. And Serrano-Beauvaix had already been fired from his position as an officer after being arrested for burglary.

On October 25, 2000, the FBI instructed Ortiz-Colón to contact these three individuals and tell them that he had met a Columbian drug trafficker named El Viejo who wanted armed police to transport and protect large shipments of cocaine. Such police protection for the drug shipments would both ward off potential legitimate police stops and provide protection from theft by rival drug gangs. Ortiz-Colón contacted them as instructed, and each agreed to transport the drugs on the following day. In a recorded telephone conversation, Ortiz-Colón told Flecha-Maldonado that the group would be paid two thousand dollars for each kilogram of cocaine that was transported and that the shipment would be somewhere between five and fifty kilograms.

The next day, October 26, Juma-Pineda, Serrano-Beauvaix, and Flecha-Maldonado met at Ortiz-Colón's apartment, which the FBI had wired for video and audio recording. The group discussed the planned transport of the drugs from Ortiz-Colón's apartment to an awaiting drug trafficker's vehicle in Humacao, Puerto Rico. At some point, an undercover agent, playing the part of a drug trafficker in the concocted Columbian drug organization, arrived at the apartment and delivered a cooler filled with sham cocaine. The cooler was placed in the trunk of a Chevy Lumina that the FBI had provided to Ortiz-Colón and had wired to record audio and video.

Flecha-Maldonado, Juma-Pineda, and Ortiz-Colón, who was the driver, got into the Lumina containing the sham cocaine. Because Serrano-Beauvaix had been fired from the police force, the group concluded that he should travel in a separate car and provide surveillance. Followed by the car Serrano-Beauvaix was driving, the three officers drove the Lumina with the sham cocaine to the appointed destination in Humacao, which was a parking lot next to a Sam's Club. During the trip, Flecha-Maldonado and Juma-Pineda kept a look-out for any suspicious cars that might contain either other police officers or rival gangsters. At one point during the drive, Juma-Pineda pulled out his police-issued firearm and began to clean it in plain view.

When the three officers arrived at the designated parking lot in Humacao and spotted the car in which they were supposed to leave the drugs, either Flecha-Maldonado or Juma-Pineda noticed several surveillance cameras and told Ortiz-Colón that the drop-off should take place elsewhere. The three settled on a nearby location and Ortiz-Colón telephoned his FBI contact, whom he pretended was El Viejo, and informed him of the new plan. Juma-Pineda then retrieved the keys to the designated car, which were stored behind the car's bumper, and drove it to the new location. He was followed by Ortiz-Colón and Flecha-Maldonado in one car and Serrano-Beauvaix in the third car. Once they arrived at the new location, the sham cocaine was finally placed into the trunk of the designated car, and the group immediately headed back to the Westin Rio Mar.

Flecha-Maldonado was paid $5,000 for his services: he was told that the shipment totaled ten kilograms, resulting in a $20,000 payment to be split four ways. In the end, the FBI had made recordings of the initial telephone conversations, the meeting in Ortiz-Colón's apartment and the delivery of the sham cocaine there, the conversations and actions in the car containing the sham cocaine, and the final delivery of the supposed drugs. The recorded conversations were in Spanish, which was the common language of the group.

These events led to the indictment of Flecha-Maldonado, along with Juma-Pineda and Serrano-Beauvaix, for three federal crimes and a fourth forfeiture count.² Count One charged the defendants with conspiring to distribute more than five kilograms of cocaine, 21 U.S.C. §§ 841(a)(1) & 846; Count Two charged them with aiding and abetting the distribution of more than five kilograms of cocaine, id.; and Count Three charged them with carrying a firearm in furtherance of a drug-trafficking crime, 18 U.S.C. § 924(c)(1)(A). Before trial, Juma-Pineda and Serrano-Beauvaix both pled guilty, but Flecha-Maldonado rejected a plea agreement proffered by the government. At trial, the principal evidence was the testimony of Ortiz-Colón and Agent Pelaez and the various video and audio tapes. A jury found Flecha-Maldonado guilty on all three counts; it also found for the government on the forfeiture count, which required Flecha-Maldonado to forfeit the $5,000 payment he received from Ortiz-Colón.

Flecha-Maldonado was sentenced to 160 months of imprisonment on Counts One and Two, to be served concurrently, plus a consecutive sentence of 60 months on Count Three. In addition to the total imprisonment term of 220 months, he also received a supervised release term of five years and a special monetary assessment of $300.

II.

Flecha-Maldonado argues that there were four errors at his trial that require reversal of his conviction: (1) the denial of his first motion for a continuance; (2) the refusal to declare a mistrial or grant a continuance due to the prosecution's delays in providing English transcripts of the Spanish conversations on the audio tapes it used at trial; (3) the admission of impermissible character evidence; and (4) the denial of his motion for a judgment of acquittal on the firearm count.

He also makes two arguments regarding his sentence. First, he argues that his position as a police officer did not afford him sufficient discretion in performing his duties to warrant his sentence enhancement for abuse of a "position of trust." Second, he claims that the district court denied his request for a downward departure because it incorrectly believed that it did not have authority to consider such a departure.

We reject each of the grounds asserted on appeal. None of Flecha-Maldonado's arguments that he was denied a fair trial has merit and his sentence was plainly within the range of options open to the district court.

A. Trial

1. Denial of Continuance Prior to Trial

Defendant was represented from several months prior to his November 29, 2001 arraignment through the start of trial by Attorney Antonio Bauzá-Torres. On March 12, 2002, the trial judge held a status conference and set a trial date of May 6, 2002. A little over a week after the status conference, on March 21, Flecha-Maldonado moved for the withdrawal of Attorney Bauzá-Torres. On the same day, Attorney John Cicilline, who is counsel on this appeal, filed an appearance for the defendant. Although the court denied Attorney Bauzá-Torres's motion to withdraw, Attorney Cicilline filed an informative motion with the court on April 18 representing that he would be ready and available for the May 6 trial date.

Some time in late April, after he filed the informative motion agreeing to the May 6 trial date, Attorney Cicilline says that he agreed to try an unrelated case that was also scheduled to start on May 6. Several days later, after receiving written notice that Flecha-Maldonado's trial was indeed set for May 6, Attorney Cicilline claims that he filed a motion notifying the judge in this case of the conflict and requesting a continuance.³ According to Attorney Cicilline, the trial judge responded that, in the event of a conflict, Flecha-Maldonado's trial would proceed as scheduled on May 6, but would be conducted from 5 p.m. until 9 p.m.

Three days before the scheduled start of the trial, Flecha-Maldonado filed a second motion requesting the withdrawal of Attorney Bauzá-Torres. The court denied this motion on the same day, saying in the accompanying order that:

Mr. Bauza will not be allowed to withdraw. Although Mr. Cicilline...