U.S. v. Flores-Rivera

• Decision Date: 09 January 1995
• Docket Number: No. 93-1558,FLORES-RIVER,D,93-1558
• Citation: 56 F.3d 319
• Parties: 42 Fed. R. Evid. Serv. 499 UNITED STATES, Appellee, v. Ericefendant-Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 319

56 F.3d 319

42 Fed. R. Evid. Serv. 499

UNITED STATES, Appellee, v. Eric FLORES-RIVERA, Defendant-Appellant.

No. 93-1558.

United States Court of Appeals First Circuit.

Heard Jan. 9, 1995.

Decided June 1, 1995.

Robert G. Levitt, Denver, CO, for appellant.

David S. Kris, Atty., U.S. Dept. of Justice, with whom Guillermo Gil, U.S. Atty., Washington, DC and Salixto Medina-Malave, Asst. U.S. Atty., Hato Rey, PR, were on brief, for appellee.

Before TORRUELLA, Chief Judge, SELYA and STAHL, Circuit Judges.

TORRUELLA, Chief Judge.

On April 11, 1991, defendant Eric Flores-Rivera ("Flores-Rivera"), along with seventeen other persons not party to this appeal, was named in a thirty-four-count superseding indictment charging various drug-related offenses. On April 14, 1993, a jury convicted Flores-Rivera on one count of conspiracy to import cocaine and to possess cocaine with intent to distribute it, in violation of 21 U.S.C. Secs. 846 and 963 (Count 2), and two counts of assaulting a federal officer with a deadly weapon, in violation of 18 U.S.C. Sec. 111, (Counts 5 and 6). The jury acquitted Flores-Rivera on Counts 3, 4, and 34, which charged importation of cocaine, possession of cocaine with intent to distribute, and use of a communication facility to commit a drug crime, in violation of 21 U.S.C. Secs. 952, 841(a)(1), and 843(b), respectively. The district court sentenced Flores-Rivera to 324 months' imprisonment, to be followed by a five-year term of supervised release. Flores-Rivera now appeals. For the following reasons, we affirm.

I. BACKGROUND

We recite the facts in the light most favorable to the government. United States v. Echeverri, 982 F.2d 675, 676 (1st Cir.1993). The focus of this case was a large drug trafficking conspiracy. The conspirators, headed by co-defendant Eusebio Escobar-de Jesus ("Escobar"), worked with members of the Medellin and Cali drug cartels to import cocaine from Colombia into Puerto Rico and New York.

The linchpin witness for the government's case against Flores-Rivera was William Cedres ("Cedres"), a confidential informant. Cedres testified that he infiltrated the conspiracy and gained the confidence of Escobar. In 1990, Cedres became the "number two man" in Escobar's organization. Cedres testified that Escobar informed him that Flores-Rivera was a member of the organization. Cedres also testified that Flores-Rivera had accompanied him to the island of Vieques to look for sites where an airplane could land or drop-off kilogram quantities of cocaine in the future. Cedres indicated that the conspirators were planning to use the new sites to import approximately 1,500 kilograms of cocaine. The Medellin cartel was to supply the cocaine, and the importation was to be divided into four or five shipments.

Cedres also testified that Escobar had instructed Flores-Rivera to supervise the importation of between 300 and 500 kilograms of cocaine from Colombia. Flores-Rivera was tape recorded discussing the importation plans with Cedres and Escobar. The tape recording, along with Cedres' testimony, indicate that Flores-Rivera was to travel to Colombia and return in a boat loaded with cocaine to one of Escobar's properties.

The government also presented evidence of Flores-Rivera's involvement in the April 1986 shooting of two U.S. Customs agents. Two witnesses testified that on April 14, 1986, they saw Flores-Rivera arrive at the Isla Grande Flying School in a yellow, flatbed tanker-truck and purchase over 100 gallons of aviation fuel. Two U.S. Customs agents followed Flores-Rivera as he drove the tanker-truck from the flying school to a farm housing a covert landing strip used by the Escobar organization. From their surveillance post outside the farm, the Customs agents observed Flores-Rivera and codefendant Andres Morales-Cruz enter the farm. Later that night, the Customs agents saw a small airplane land at the farm. Shortly thereafter, the Customs agents witnessed an unidentified man clad in army fatigues exit the farm in a white van. The Customs agents followed. When the van got to a small curve in the road, it stopped as if to make a U-turn. As the Customs agents tried to drive by, the van's occupants opened fire on them, severely injuring both agents. The agents were never able to identify the attackers.

II. DISCUSSION

A. Sufficiency of the Evidence

Flores-Rivera contends that the evidence was insufficient to support his convictions for conspiracy and assault on a federal officer.

The standard of review governing a challenge to the sufficiency of the evidence is well established. An appellate court must determine whether a rational jury could find guilt beyond a reasonable doubt. Echeverri, 982 F.2d at 677; United States v. Garcia, 983 F.2d 1160, 1163-64 (1st Cir.1993). In making this determination, the reviewing court must examine the evidence, together with all inferences that may be reasonably drawn from it, in the light most favorable to the prosecution. Echeverri, 982 F.2d at 677. Furthermore, the reviewing court does not evaluate witness credibility, but resolves all credibility issues in favor of the verdict. Garcia, 983 F.2d at 1164 (quoting United States v. Batista-Polanco, 927 F.2d 14, 17 (1st Cir.1991)). "The evidence may be entirely circumstantial, and need not exclude every reasonable hypothesis of innocence; that is, the factfinder may decide among reasonable interpretations of the evidence." Batista-Polanco, 927 F.2d at 17. Nevertheless, "[i]f the 'evidence viewed in the light most favorable to the verdict gives equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence of the crime charged,' this court must reverse the conviction. This is so because ... where an equal or nearly equal theory of guilt and a theory of innocence is supported by the evidence viewed in the light most favorable to the prosecution, 'a reasonable jury must necessarily entertain a reasonable doubt.' " United States v. Sanchez, 961 F.2d 1169, 1173 (5th Cir.) (citations omitted), cert. denied, --- U.S. ----, 113 S.Ct. 330, 121 L.Ed.2d 248 (1992). With the scope of our review thus defined, we move to the appellants' claims.

1. Conspiracy

To establish a conspiracy conviction, the prosecution must prove, inter alia, that the defendant entered an agreement to commit the substantive offense, and that the defendant was a voluntary participant in the conspiracy. Echeverri, 982 F.2d at 679. The government must prove that the defendant possessed both "an intent to agree and an intent to effectuate the commission of the substantive offense." United States v. Piper, 35 F.3d 611, 615 (1st Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1118, 130 L.Ed.2d 1082 (1995). However, "[d]ue to the clandestine nature of criminal conspiracies, the law recognizes that the illegal agreement may be either 'express or tacit' and that a ' "common purpose and plan may be inferred from a development and collocation of circumstance." ' " United States v. Sanchez, 917 F.2d 607, 610 (1st Cir.1990) (citations omitted), cert. denied, 499 U.S. 977, 111 S.Ct. 1625, 113 L.Ed.2d 722 (1991). "Mere presence at the scene and close association with those involved are insufficient factors alone; nevertheless, they are relevant factors for the jury." Sanchez, 961 F.2d at 1174 (5th Cir.) (citation omitted).

Although he does not dispute the existence of the Escobar drug-trafficking conspiracy, Flores-Rivera maintains that the evidence fails to establish that he was a member. Given that we resolve any credibility issues in favor of the verdict, we find that Flores-Rivera's sufficiency-of-the-evidence challenge fails because the record contains ample support for his conspiracy conviction. A reasonable jury could infer from Cedres' testimony that Flores-Rivera was deeply involved in the entire operation. Cedres testified that Flores-Rivera was a member of the Escobar conspiracy, and that Flores-Rivera accompanied him to Vieques to search for appropriate landing sites for drug drop-offs. Moreover, the evidence against Flores-Rivera includes a tape-recorded conversation in which Flores-Rivera discusses importation plans with Escobar and Cedres. The tape recording also indicates that Flores-Rivera agreed to go to Colombia and return in a boat laden with cocaine. In sum, the evidence demonstrates clearly and convincingly that Flores-Rivera was a knowing and voluntary participant in many aspects of the Escobar drug conspiracy.

2. Assault on a federal agent

Under the well settled Pinkerton doctrine, members of a conspiracy may be held liable for the substantive crimes committed by co-conspirators, provided that the substantive crimes were committed in furtherance of the conspiracy and while the defendant was a member of the conspiracy. See Pinkerton v. United States, 328 U.S. 640, 646-48, 66 S.Ct. 1180, 1183-84, 90 L.Ed. 1489 (1946); United States v. Torres-Maldonado, 14 F.3d 95, 101 (1st Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 193, 130 L.Ed.2d 125 (1994). Under Pinkerton, the government was required to prove that the April 14, 1986, assault on the U.S. Customs agents was carried out by members of the Escobar conspiracy, in furtherance of the conspiracy, and at a time when Flores-Rivera was still a member of the conspiracy. United States v. Munoz, 36 F.3d 1229, 1234 (1st Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1164, 130 L.Ed.2d 1120 (1995). We think it met this burden. The jury heard the following facts: On April 14, 1986, Flores-Rivera brought airplane fuel to a farm housing a covert landing strip operated by the conspirators. While the Customs agents were surveilling the farm, a plane landed at the farm and, shortly thereafter, a man clad in army fatigues exited in a white van. The Customs agents followed the van. The van stopped as if to make a U-turn, and as the Customs agents drove by, they were fired upon by the van's occupants. In these circumstances, a reasonable jury...