U.S. v. Hernandez, 79-1027

• Decision Date: 18 June 1980
• Docket Number: No. 79-1027,79-1027
• Parties: UNITED STATES of America, Appellee, v. Hector HERNANDEZ, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 2

625 F.2d 2

UNITED STATES of America, Appellee, v. Hector HERNANDEZ, Defendant, Appellant.

No. 79-1027.

United States Court of Appeals First Circuit.

Argued May 5, 1980.

Decided June 18, 1980.

Judith M. Freedman, Boston, Mass., for defendant, appellant.

Justo Arenas Fernandez, Asst. U. S. Atty., with whom Raymond L. Acosta, U. S. Atty., San Juan, P. R., was on brief, for appellee.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

COFFIN, Chief Judge.

Appellant and one Alvarez were indicted and convicted of conspiracy to distribute eight pounds of cocaine between July 31, 1978, and August 9, 1978. Appellant moved for judgment of acquittal and raises here only the issue of evidentiary adequacy.

The alleged conspiracy involved appellant Alvarez, one Manny Cabrera Rosario who pleaded guilty, and one Henry Cepero, a fugitive. All the evidence referring to appellant concerned conduct, including conversations, before and after the purchase of one ounce of cocaine from Cabrera by a government informer, Raymond Torrens, on August 1, 1978. Most of the evidence at the trial was of later events and pertained to the other defendants five telephone conversations about an eight pound drug transaction between a government agent and Cabrera; and, on August 9, 1980, discussions about the sale between the two while driving around San Juan in an automobile, surveillance of the agreed upon rendezvous for the transaction, and attempted arrests at the scene of both Cabrera and co-defendant Alvarez followed by a high speed chase of both, the arrest of Alvarez, and the search of both vehicles.

Appellant was not present at any of the events of August 9 nor was he involved in the discussions leading up to the planned August 9 transaction. His name was not mentioned and no suggestion was made that he was aware of the plans or incidents. His total involvement was the following: On July 31 Torrens, who had known appellant for a year, went to a bar to enlist appellant's help in purchasing one ounce of cocaine. Appellant replied that he would try to find one of his friends who could supply him with an ounce. In the early morning hours of August 1, Cabrera entered the bar, talked to appellant, and appellant introduced him to the informer, saying that Cabrera could supply him with good quantity and good quality at a good price. Cabrera and the informer then entered a bathroom where the sale of one ounce of cocaine for $1600 was effected. They returned to the bar. Cabrera and appellant again talked with each other. On the following day appellant called the informer and asked if "everything was alright (sic)". The informer replied in the affirmative and asked if "Manny had taken care of him". Appellant said that he had.

The only additional evidence was that on August 2, an agent of the Drug Enforcement Administration, Garcia, met with Cabrera at a hotel in accordance with plans and purchased four and a half ounces (one eighth of a kilogram) of cocaine for six thousand dollars. The agent asked Cabrera about "El Chino", described as appellant's nickname. Cabrera, in the words of the agent, said, "(D)on't worry, I will take care of him." The agent tried to prolong this conversation but Cabrera did not go into any detail.

If appellant were being prosecuted for conspiracy or aiding and abetting in connection with the August 1 sale of one ounce, the government would have a much more compelling case. Appellant undertook to find a supplier for the requested one ounce; he talked with the supplier before and after the sale; which was carried out nearby; he called the informer the next day to ask if all was well and said that the supplier had taken care of him. This might well be sufficient. Cf. United States v. Cornish, 491 F.2d 80 (1st Cir. 1974).

The government, however, set itself to a much more ambitious task to link appellant with others in a conspiracy to sell a quantity some 128 times larger at a correspondingly higher price to a different purchaser at a different place and at a later time. In deciding whether the government succeeded in accomplishing that task, our role on review is to "determine whether the evidence presented at trial, evaluated in the light most favorable to the government, was enough to permit the jury to decide . . . beyond a reasonable doubt . . . that the defendant had the specific intent to violate the substantive stat...