U.S. v. Hertular

• Decision Date: 06 April 2009
• Docket Number: Docket No. 07-1453-cr.
• Citation: 562 F.3d 433
• Parties: UNITED STATES of America, Appellee, v. Robert HERTULAR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

562 F.3d 433

UNITED STATES of America, Appellee, v. Robert HERTULAR, Defendant-Appellant.

Docket No. 07-1453-cr.

United States Court of Appeals, Second Circuit.

Argued: June 19, 2008.

Decided: April 6, 2009.

Anirudh Bansal, Assistant United States Attorney (Jesse M. Furman, Katherine Polk Failla, Assistant United States Attorneys, of counsel), for Michael J. Garcia, United States Attorney for the Southern District of New York, New York, New York, for Appellee.

Avrom Robin (Ira D. London, of counsel), Law Office of Ira D. London, New York, New York, for Defendant-Appellant.

Before: STRAUB, RAGGI, Circuit Judges, and SESSIONS, District Judge.¹

REENA RAGGI, Circuit Judge:

Defendant Robert Hertular appeals from a judgment of conviction entered on April 4, 2007, by Judge Naomi Reice Buchwald after a jury trial in the United States District Court for the Southern District of New York. Hertular stands convicted of four crimes: (1) conspiracy to import five kilograms or more of cocaine, see 21 U.S.C. §§ 952(a), 963; (2) distribution of five kilograms or more of cocaine, knowing that it would be imported into the United States, see id. §§ 959(a), 960(b)(1)(B)(ii); (3) forcibly impeding or intimidating a federal officer, see 18 U.S.C. § 111; and (4) obstruction of justice, see id. § 1512(b)(3). He is presently incarcerated serving a non-Guidelines prison term of 400 months (33-1/3 years). Through counsel, Hertular challenges his conviction on the grounds that (1) the trial evidence was insufficient to support the jury's guilty verdicts on the counts of (a) forcibly impeding or intimidating a federal officer and (b) obstructing justice; (2) the district court erroneously instructed the jury on the elements of obstruction of justice; and (3) the 400-month sentence is infected by procedural error and, in any event, is substantively unreasonable. In a pro se submission, Hertular raises myriad other challenges.

Because we conclude that the trial evidence, even when viewed in the light most favorable to the government, was insufficient to support a guilty verdict under the § 111 count (Count Three), we are obliged to reverse the conviction on that count and to vacate the sentence and to remand for resentencing in light of that reversal. We reject Hertular's remaining appellate arguments as without merit and, therefore, affirm his conviction in all other respects.

I. Background

A. Evidence Supporting the Challenged Counts of Conviction

The trial evidence convincingly demonstrated that in the period between 2001 and January 2004, Belizean national Robert Hertular conspired with others to import more than six tons of cocaine into the United States. Because Hertular raises no sufficiency challenge to his conviction on the conspiracy and substantive counts of narcotics trafficking, we do not detail this evidence further. Instead, we focus on the evidence adduced to prove the challenged counts of forcibly impeding or intimidating a federal officer and obstruction of justice. We summarize that evidence in the light most favorable to the government. See, e.g., Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); United States v. Jones, 531 F.3d 163, 166 (2d Cir.2008).

1. 2001: Hertular's Initial Meetings with DEA Agent Williams

In mid-2001, Hertular was charged by Belizean authorities with trafficking in 1,161 kilograms of cocaine, which drugs Hertular admitted belonged to him and were destined for the United States. After securing bail release, Hertular initiated cellular telephone contact with Special Agent Vincent Williams, then assigned by the Drug Enforcement Administration ("DEA") to Belize to investigate drug trafficking between that country and the United States. At that time, Agent Williams had never met Hertular, much less given him the agent's unlisted cell phone number.

As a result of the call, Agent Williams and Hertular met on September 18, 2001, at which time Hertular expressed an interest in cooperating with United States authorities. Hertular generally described his drug trafficking operation, identifying various Belizean government officials as confederates. He admitted to transporting large quantities of cocaine by plane and speedboat from Colombia to Belize and to using VHF radios and satellite phones to communicate with his fellow traffickers during transport operations.

Agent Williams and Hertular met again on December 13, 2001, at which time Hertular gave the agent a VHF radio and satellite phone that he indicated had been used to coordinate a May 2001 cocaine shipment. At this meeting, however, Agent Williams informed Hertular that the DEA would not use him as a confidential informant. The agent had no further contact with Hertular until April 2003.

2. April 11, 2003: Hertular's Uncharged Threat to Agent Williams

On April 11, 2003, Agent Williams was surveilling the Belize residence of confidential informant Liston McCord when he observed Hertular entering the premises. Both Agent Williams and McCord testified at trial to the events that ensued.

Specifically, McCord testified that, once inside his home, Hertular told him that a vehicle belonging to DEA agents was parked outside the premises. When McCord feigned indifference, Hertular advised him to get rid of the car.

Moments later, Agent Williams called McCord to inquire about defendant's presence. Although McCord took this call out of Hertular's presence, when the conversation concluded, Hertular asked the informant if he was cooperating with the DEA. McCord denied any such involvement, and Hertular again advised him to get rid of the surveilling agents, going so far as to offer McCord hand grenades to achieve that goal. When McCord responded that there was no need to "get that drastic," Hertular stated that he could get McCord "anything" he wanted. Trial Tr. at 379. Hertular even offered to "get rid of" the agents himself, but McCord declined, stating that he had nothing to hide from the DEA. Id.

After Hertular left McCord's home, Agent Williams followed defendant and signaled him to pull over into a parking lot. There, Agent Williams warned Hertular to "be mindful of his associations." Id. at 540. Agent Williams testified that this incensed Hertular, who replied that he could "associate with anybody he want[ed]" and reminded Agent Williams that he was a guest in Belize. Id. Hertular stated that "he was tired of the DEA and the American Embassy" and that he was "willing to kill a DEA agent or an American Embassy" employee. Id. at 541. In response to this threat, Agent Williams warned Hertular that if he were to "make[ ] a hit" on the agent, Hertular should "make sure that he does it right the first time because he won't get a second chance." Id.

Agent Williams reported Hertular's threat to American Embassy officials. In response, the Embassy threat level was raised and extra security measures were implemented. For example, Hertular's photograph was circulated to all Embassy employees, and a "two-man rule" was implemented, requiring all agents and Embassy personnel to travel in pairs.

3. December 25, 2003: Hertular's Charged Threat to Agents Williams and Kelly

By the end of 2003, the DEA had opened a formal investigation into Hertular's drug trafficking activities and was conveying its findings to Assistant United States Attorneys in the Southern District of New York with a view toward securing a federal indictment.

On December 25, 2003, Hertular called DEA Agent Raymond Kelly (recently assigned to Belize) on his cell phone and requested a meeting near the residence of another DEA agent. Agent Kelly's cell phone number, like that of Agent Williams, was unlisted and should have been unavailable to Hertular. Similarly, there was no obvious way in which Hertular could have obtained the residential addresses for DEA agents stationed in Belize.

Agents Kelly and Williams met Hertular that same day at the designated site. As the three men sat in Kelly's car, Hertular stated that he knew he was the subject of a DEA investigation and that an indictment was likely to be returned against him in the near future. He told the agents that "he didn't want [that] to occur." Id. at 549. When Agent Kelly denied any investigation, Hertular promptly rebutted the denial by playing the tape recording of an intercepted conversation between Kelly and a confidential DEA informant regarding Ralph Fonseca, a senior Belizean government official with whom Hertular was suspected of trafficking drugs. Hertular explained that DEA telephones—both cellular and landline—had been tapped, that a call had been intercepted between Agent Williams and an Assistant United States Attorney discussing the possibility of Hertular's indictment, that individuals within the American Embassy routinely provided Hertular with information, and that he knew the identities of several DEA informants. Hertular stated that he wanted the investigation against him stopped, in return for which he would consider cooperating with the DEA.

In the ensuing conversation, Hertular admitted that, since 1987, he had been a member of the "Fonseca organization," a group involved in drug trafficking and money laundering in the United States and Europe. Hertular implicated a former Belizean prime minister and police commissioner in the organization and identified the Belize Alliance Bank as the entity used for money laundering. Hertular stated that his further cooperation would depend on DEA agreeing in writing to various demands, for example, allowing defendant to live in Europe. The agents indicated that they would have to consult with their superiors and the prosecutors. Meanwhile, they asked Hertular for a copy of the recorded conversation that he had played for them.

Hertular left the scene to make a copy of the requested recording. When he returned a half hour later, his attitude was confrontational. Specifically, Hertular refused to give the agents a copy of the...