U.S. v. Hawkins
| Decision Date | 16 October 2008 |
| Docket Number | Docket No. 07-3018-cr. |
| Citation | 547 F.3d 66 |
| Parties | UNITED STATES of America, Appellant, v. Warren HAWKINS, also known as Paul, also known as Hawk, Defendant-Appellee, Alex Luna, Nicky Carrasquilla, also known as Nicky Gomez, Jose R. Adames, also known as Ponpa, also known as Pon, also known as Pong, Nelson Rosa, also known as Pee Wee, Bobby Medina, also known as Mr. B., Alex Salcedo, Juan Rodriguez, also known as Juan G, also known as Juan Prosser, also known as John Prosser, also known as Juan Garcia, Maria Robles, also known as Mari, William Azcona, also known as Willie, Henry Mayoral, Heriberto Guzman, also known as Crazy Louis, Jose A. Pena, Benny Ramirez, David Melendez, also known as Gary, Joel Bueno, Joshua Febres, Timothy Eberly, Rafael Almontes, also known as Raf, also known as Rafie, Aaron King, also known as A-Mo, Jose Luis Rodriguez, also known as Jose Luis, Arcadio Ramirez, also known as Peti, John # 1 Doe, also known as N.Y.S. Trooper Rubio, Defendants. |
| Court | U.S. Court of Appeals — Second Circuit |
The government appeals from the judgment of the United States District Court for the District of Connecticut (Stefan R. Underhill, Judge), granting Defendant-Appellee Warren Hawkins's motion for an acquittal notwithstanding the verdict pursuant to Rule 29(c) of the Federal Rules of Criminal Procedure. The District Court found that, although the government proved that Hawkins purchased cocaine from what he knew was a cocaine-distribution conspiracy and that the head of the conspiracy knew of Hawkins's intent to resell the cocaine, the government's evidence that Hawkins knowingly and intentionally joined and participated in that conspiracy in violation of 21 U.S.C. §§ 841(a)(1) and 846 was insufficient. See United States v. Hawkins, No. 05-cr-058, 2007 WL 1732767 (D.Conn. June 15, 2007). For the reasons that follow, we find that the government's evidence was sufficient to prove that Hawkins not only purchased from the conspiracy with a known intent to resell, but he knowingly and intentionally joined and participated in it. Accordingly, we REVERSE the judgment of acquittal and REMAND the case to the District Court for further proceedings consistent with this opinion.
In a thirteen-count Superseding Indictment charging Hawkins and twenty-two others with various offenses, Hawkins was charged with one count of conspiring with Alex Luna, the head of a drug organization, Joshua Febres, a Luna associate and the brother of Hawkins's childhood friend, Arcadio Ramirez, Jose Luis Rodriguez and others to possess with intent to distribute and to distribute fifty grams or more of cocaine base and five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846. In May 2006, Hawkins and two co-defendants, Ramirez and Rodriguez, were tried before a jury on the conspiracy count. Hawkins was found guilty of entering into a conspiracy to distribute less than 500 grams of a mixture or substance containing a detectable amount of cocaine and/or less than five grams of a mixture or substance containing a detectable amount of cocaine base. The jury also convicted Ramirez and Rodriguez, finding them responsible for at least 500 grams and five kilograms of cocaine, respectively.
At trial, the government presented evidence regarding a conspiracy led by Alex Luna to distribute cocaine in Danbury, Connecticut from late 2002 until March 4, 2005, when Luna, his associate Febres, Hawkins and others were arrested. The evidence concerning Hawkins adduced at trial consisted of: (1) recordings of five intercepted telephone calls between Hawkins and members of the conspiracy; (2) the testimony of cooperating witness Febres; and (3) the testimony of Special Agent Eileen Dinnan of the Drug Enforcement Administration. We review this evidence in the light most favorable to the government.
Members of the Luna conspiracy testified that an eight-ball of cocaine, approximately 3.5 grams, could be broken down into several 0.3 gram bags for resale. An eight-ball, however, might also be bought for personal use.
On February 9, 2005, Febres called Hawkins, a childhood friend of his sister. Hawkins confirmed to Febres what it appears he suggested previously to Luna: that Hawkins wanted to purchase five grams of cocaine from Luna. Febres told him the price would be twenty-three dollars per gram. Hawkins asked about the quality of the cocaine, and Febres reassured him that it was Febres passed the phone to Luna, who told Hawkins, "Come get your shit, man." Hawkins told Luna that he had recently seen Henry Mayoral, a member of the Luna conspiracy. Hawkins then explained to Luna that he expected to sell his car in a few days and planned to put some of the proceeds into savings and use the rest "to get fresh with." Febres testified that this meant Hawkins planned to purchase cocaine from Luna. Hawkins asked Luna how he should get in touch with them and Luna instructed him to use the same number from which Febres had just called him, Luna's cellphone number. Hawkins said he would store the number in his phone and call Luna later. Hawkins and Luna then chatted, with Hawkins expressing his desire to "[s]tay under the radar" and "[s]tay away from them knuckle heads and that wild shit." Hawkins said that he did "nothing but go to work and come home and chill with [his] kids and wifey," who was pregnant. Hawkins then told Luna, Febres testified that this sale of five grams to Hawkins did not occur.
On February 12, 2005, Hawkins called Luna and told him that two individuals from work were seeking drugs. Febres testified that "looking hard" meant the customer wanted to get high. Hawkins noted that he does not do business with the cocaine dealers on Beaver Street. Hawkins asked Luna about buying an eight-ball and they agreed Hawkins would call Luna back later that day. Febres thought Hawkins might have been planning to get high with his customers or to take some for his own use. Special Agent Dinnan conducted surveillance of Luna that day and observed Hawkins meet with Luna in the parking lot of Hawkins's condominium. Febres testified that this sale of 3.5 grams of cocaine to Hawkins was completed.
On February 17, 2005, Luna called Hawkins. Hawkins asked Luna how much he wanted for two eight-balls and Luna confirmed that the price was ninety dollars per eight-ball. The two arranged to meet at a local ice-cream parlor. Febres went with Luna to deliver the cocaine to Hawkins at the parlor. Febres testified that this sale of seven grams of cocaine to Hawkins was completed.
On February 23, 2005, Hawkins called Luna and said that he was broke but he needed an eight-ball. Hawkins explained that he had a potential customer:
I got this white kid, he waiting for me right now, he got a $100.00. I need a "8 ball" though. You know what I mean? I need to come from you right now and go give it to him and then hit you right back in the spot. Whatever or just give you [unintelligible], I'll get back on my feet.
Febres explained that Hawkins was asking Luna for credit to resell an eight-ball to a customer from New Milford. Luna agreed with the plan, saying he would call him back. A few minutes later, Hawkins called Luna and asked for confirmation on the deal. Hawkins again said he would meet the customer, "grab the dough from him and come right back and hit you with it." Luna told Hawkins to "go to the Gardens," a Danbury housing complex, and Luna said he would "be right there." At this time, Luna, Febres and a co-conspirator were inside a parked car, compressing cocaine. (Febres explained that this process entailed cutting the cocaine to decrease its purity.) The credit transaction with Hawkins did not take place.1
Febres testified that Hawkins was an addict who bought drugs, and that he was neither a drug dealer generally nor a member of the Luna organization. Febres accepted the government's characterization of Hawkins as a go-between.
At the close of the government's main case, Hawkins and his co-defendants each moved for a judgment of acquittal. The District Court denied the motions, explaining that with respect to Hawkins it "is a closer call[,] but if the jury adopts the government's view of the evidence ... I think they could return a verdict against Mr. Hawkins."
The District Court charged the jury, instructing that on the element of membership in a conspiracy the government must prove more than mere presence, association, and knowledge. As Hawkins requested, the District Court further instructed: "Thus, without more, the mere existence of the buyer/seller [relationship] is insufficient to establish membership in a conspiracy." The District Court also instructed the jury on single versus multiple conspiracies, explaining that the government must prove the existence of the conspiracy charged in the indictment and each defendant's participation in that conspiracy. The jury found Hawkins guilty, the District Court subsequently granted his Rule 29(c) motion, Hawkins, 2007 WL 1732767, and this appeal followed.
"We review the district court's judgment of acquittal notwithstanding the verdict de...
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