U.S. v. de Jesus-Rios, JESUS-RIOS

• Decision Date: 05 February 1993
• Docket Number: JESUS-RIOS,91-1933,Nos. 91-1860,s. 91-1860
• Citation: 990 F.2d 672
• Parties: UNITED STATES, Appellee, v. Jose de, a/k/a Papo Rios, Defendant, Appellant. UNITED STATES, Appellee, v. Eva RIOS, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 672

990 F.2d 672

UNITED STATES, Appellee, v. Jose de JESUS-RIOS, a/k/a Papo Rios, Defendant, Appellant.

UNITED STATES, Appellee, v. Eva RIOS, Defendant, Appellant.

Nos. 91-1860, 91-1933.

United States Court of Appeals, First Circuit.

Heard Feb. 5, 1993.

Decided April 7, 1993.

Gabriel Hernandez Rivera for defendant, appellant Jose de Jesus-Rios.

Juan Acevedo-Cruz with whom Wilma E. Reveron-Collazo was on brief, for defendant, appellant Eva Rios.

Jose A. Quiles Espinosa, Sr. Litigation Counsel, with whom Daniel F. Lopez Romo, U.S. Atty., and Antonio R. Bazan, Asst. U.S. Atty., were on brief, for appellee.

Before STAHL, Circuit Judge, ALDRICH and COFFIN, Senior Circuit Judges.

STAHL, Circuit Judge.

Appellants Jose de Jesus Rios ("Jose Rios") and his cousin, Eva Maria Rios ("Eva Rios"), were convicted of aiding and abetting each other in the importation of approximately 196 kilograms of cocaine into the customs territory of the United States in violation of 18 U.S.C. § 2 and 21 U.S.C. § 952(a). Appellants also were convicted of aiding and abetting each other in the possession with intent to distribute cocaine in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1). On appeal, both maintain that the evidence was insufficient to support their respective convictions. Eva Rios also argues that the district court erred in denying her motion to suppress the pretrial identifications of her by two government witnesses. After careful consideration of the record, we affirm the conviction of Jose Rios and vacate that of Eva Rios.

I. Factual Background

The two principal government witnesses, George Rivera Antron ("Rivera") and Juan Enrique Mejias Valle ("Mejias"), brothers-in-law who had known each other more than thirty years, worked together aboard a vessel named the "Santa Martina." The Santa Martina, which was owned by Rivera, transported general cargo between the islands of Puerto Rico and St. Thomas. Rivera made his livelihood as the captain of the Santa Martina, and Mejias was employed as his assistant.

On February 7, 1991, at approximately 5:30 p.m., while Mejias was working on the Santa Martina, which was docked at a port in St. Thomas, two women approached him looking for Rivera. Mejias informed them that Rivera was on an errand and would probably return around 6:00 p.m. The two women waited for Rivera for approximately fifteen minutes, during which time they engaged Mejias in casual conversation. For reasons unexplained in the record, they departed before Rivera returned to the boat.

The following morning, at approximately 8:00 a.m., one of the two women returned to the boat looking for Rivera. Mejias, who was preparing the boat for departure, informed her that Rivera was on an errand and would return shortly. A few minutes later Rivera returned, and the woman, posing as a commercial dealer in detergent, asked him to transport ten boxes of detergent to Fajardo, Puerto Rico. Rivera agreed and they made the necessary arrangements. When Rivera asked what name should be entered on the receipt as "sender," the woman responded "A & A Supplies." When asked what name to enter as receiver, she responded "Papo Rios." At some point during their conversation, the woman told Rivera that she would "send the boxes later." The conversation between Rivera and the woman, which was witnessed by Mejias, lasted somewhere between five and fifteen minutes.

Approximately one-half hour after she left, two men drove up to the dock in a truck with the ten boxes. One of the men told Rivera that "the lady sent the boxes." About an hour after the ten boxes were loaded onto the Santa Martina, Rivera and Mejias departed St. Thomas for Fajardo, Puerto Rico.

The Santa Martina arrived in Fajardo later that afternoon. After docking the vessel, Rivera went to customs to enter all of his cargo. On the way to customs, Rivera was approached by Jose Rios, who--as it turned out--had been a longtime acquaintance of Rivera's. Rivera knew Jose Rios as "Papo Rios." Rivera asked Jose Rios to accompany him to customs to sign for the ten boxes being delivered to him. On the way to customs, Jose Rios disclaimed ownership of the boxes, and told Rivera that he did not know why the boxes had been sent to him. At customs, however, Jose Rios signed the entry declaration as the "owner" of the ten boxes. Rafael Figueroa, a United States customs agent who witnessed Jose Rios sign the declaration, testified that Jose Rios appeared "nervous" as he answered questions about his ownership of the ten boxes.

After all of the relevant customs documents were processed, Rivera, Jose Rios, and United States Customs Agent Angel Luis Villegas Lopez ("Agent Villegas"), went to the Santa Martina to unload its cargo. As Jose Rios was carrying one of the boxes off the boat, Agent Villegas became suspicious about its weight and decided to inspect it. Agent Villegas opened one of the boxes and discovered powder that appeared to be cocaine. Upon hearing that cocaine may have been discovered, Jose Rios disclaimed ownership of the boxes, stated that he was "going to look for the owners," and promptly departed the scene.

Shortly thereafter, Agent Villegas conducted a field test on the powder in one of the boxes. That test yielded a positive result for cocaine. ¹ The government then seized the Santa Martina, informing Rivera that it would be held pending the investigation. Several days later, the government arrested Jose Rios, and began its search for the as yet unidentified woman who had contracted with Rivera to ship the ten boxes to Fajardo. The facts leading up to the identification of Eva Rios as that person are summarized below. ²

On February 8, 1991, both Rivera and Mejias gave verbal descriptions of the woman who had contracted with Rivera to United States Customs Agent Hector Marti Figueroa ("Agent Marti"). According to Agent Marti, both Rivera and Mejias described the woman as a "Latin female" with "dark hair" and "white" skin who was "a little chubby" and approximately five feet, two inches tall.

On February 11, 1991, Rivera was interviewed again by United States Customs Agent Juan Dania ("Agent Dania"), and Agent Marti. Relying upon written notes, Agent Dania testified that Rivera described her as "white" with "shoulder length [black] hair" and "a full face ... with fine features." ³ The next day, on February 12, Agents Dania and Marti also interviewed Mejias. Relying upon his written notes, Agent Dania testified that Mejias described the woman as "white."

Although the record is not clear, it appears that Eva Rios became a suspect based upon independent information from a confidential informant. Apparently relying upon that information, Agents Marti and Dania decided to conduct a show-up identification procedure using Rivera as the identifying witness and Eva Rios as the potential suspect. To that end, on February 16, 1991, they arranged with Eva Rios to meet them in front of the United States Customs Building in St. Thomas. Immediately after making the arrangements with Eva Rios, Agent Marti phoned Rivera and instructed him to be at the United States Customs Building by 11:30 a.m.

Upon Rivera's arrival, Agent Marti informed him that a suspect, named "Eva Rios," would be meeting the agents on the steps of the customs building sometime between 11:30 a.m. and 12:00 p.m. Marti also informed Rivera that the purpose of Eva Rios's visit was to allow him to make an identification of her. Rivera was instructed to sit in a parked car across the street from the customs building, and to signal the agents with a white handkerchief as soon as he could positively identify her as the woman with whom he spoke on the morning of February 8, 1991.

At some point between 11:30 a.m. and 12:00 p.m., Eva Rios arrived at the customs building. Rivera testified that he saw her as she drove by, as she parked her car, and again as she walked by his parked car. He did not, however, give a signal to the officers until she walked up to Agents Marti and Dania, shook their hands, and sat down next to them on the stairs of the customs building. Based upon Rivera's positive identification of Eva Rios, Agents Marti and Dania arrested her on the spot.

The record reveals that February 16, 1991, was a Saturday, Eva Rios's car was the only car that drove by the customs building during the time Rivera was in his parked car, and, while several women "passed by" the customs building during that time, only Eva Rios stopped to talk with the agents. Agents Marti and Dania also testified that they would not have arrested Eva Rios but for Rivera's positive identification of her. Subsequently, on or about February 22, 1991, the government returned the Santa Martina to Rivera.

On February 25, 1991, Rivera and Mejias were brought to an office in the customs building and shown a photo-spread of six photographs, one of which was Eva Rios. Both Rivera and Mejias positively identified Eva Rios from the photo spread. After Rivera and Mejias made their respective identifications, Agent Marti, the agent in charge of the procedure, asked both of them to sign affidavits attesting to the results. They also included in their affidavits an additional description of the woman with whom they spoke on February 8. Rivera described her as "a young woman ... with dark hair, light brown complexion, thirty years old ... and somewhat fat." Mejias described her as a lady "with light brown skin, of average height ... dark hair and a little fat."

Agent Marti testified that Rivera and Mejias made their identifications at different times and "never encountered each other at the office." ⁴ When asked whether he had had any discussions with Rivera about the incident, Mejias testified that he ended his employment relationship with Rivera on February 8, 1991, and had not seen Rivera between that date and February 25, 1991, the date of the photo spread identification. During their trial testimony, Rivera and Mejias also made in-...