U.S. v. De Leon Ruiz, s. 93-2191

• Decision Date: 01 February 1995
• Docket Number: 93-2192,Nos. 93-2191,s. 93-2191
• Citation: 47 F.3d 452
• Parties: UNITED STATES of America, Plaintiff, Appellee, v. Agustin DE LEON RUIZ, Defendant, Appellant. UNITED STATES of America, Plaintiff, Appellee, v. Orlando RODRIGUEZ RODRIGUEZ, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 452

47 F.3d 452

UNITED STATES of America, Plaintiff, Appellee, v. Agustin DE LEON RUIZ, Defendant, Appellant.

UNITED STATES of America, Plaintiff, Appellee, v. Orlando RODRIGUEZ RODRIGUEZ, Defendant, Appellant.

Nos. 93-2191, 93-2192.

United States Court of Appeals First Circuit.

Submitted Nov. 9, 1994.

Decided Feb. 1, 1995.

Jose A. Quiles Espinosa, Senior Litigation Counsel, Hato Rey, PR, with whom Guillermo Gil, U.S. Atty., Washington, DC, and Antonio R. Bazan, Asst. U.S. Atty., Hato Rey, PR, were on brief for the U.S.

Carlos R. Noriega, Hato Rey, PR, for appellant Agustin De Leon Ruiz.

Luis F. Abreu Elias, Hato Rey, PR, on brief for appellant Orlando Rodriguez Rodriguez.

Before BOUDIN, Circuit Judge, CAMPBELL, Senior Circuit Judge, and BOYLE, ^* Senior District Judge.

BOUDIN, Circuit Judge.

On August 26, 1992, appellants Agustin De Leon Ruiz and Orlando Rodriguez Rodriguez, along with three other individuals, were charged in a four-count indictment concerning a May 1992 drug transaction. Appellants were both indicted for possessing two kilograms of cocaine with intent to distribute (count II), 21 U.S.C. Sec. 841(a)(1), and aiding and abetting the use of firearms during the commission of a drug offense (count III), 18 U.S.C. Sec. 924(c)(1). De Leon was indicted for using a communication facility to facilitate the commission of a crime (count I), 21 U.S.C. Sec. 843(b), while Rodriguez was indicted for possessing firearms with obliterated serial numbers (count IV), 18 U.S.C. Sec. 922(k).

After a five-day jury trial, De Leon was convicted on the communication and drug charges (counts I and II) but acquitted on the firearms charge (count III). Rodriguez was convicted on the drug charge (count II) but acquitted on both of the firearms counts with which he was charged (counts III and IV). Following a sentencing hearing, De Leon and Rodriguez were sentenced to 78 and 87 months, respectively. On appeal, Rodriguez challenges both his conviction and sentence, while De Leon challenges only his sentence.

1. The evidence adduced at trial, taken in the light most favorable to the verdict, United States v. Torres-Maldonado, 14 F.3d 95, 100 (1st Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 193, 130 L.Ed.2d 125 (1994), is as follows. On May 5, 1992, Pablo Rivera, an undercover DEA agent, set up a drug buy through a confidential informant for two kilograms of cocaine. The informant spoke with De Leon on the telephone on five different occasions that day to negotiate the transaction; these conversations were all recorded and the recordings played at trial. In those conversations the price for each kilogram was set at $18,000.

Through De Leon's drug connections--two individuals named Lebron and De Jesus--Rodriguez was contacted to supply the cocaine. Lebron and De Jesus both testified for the government at trial pursuant to a plea agreement. According to their testimony, the drug buy was scheduled to take place in the parking lot of a local supermarket on the evening of May 5, 1992. On that day, around 5:00 p.m., De Jesus telephoned Rodriguez to inquire about obtaining the two kilograms of cocaine; Rodriguez told De Jesus to come to his family's restaurant, El Muelles, to discuss the matter.

De Jesus met with Rodriguez at the restaurant, and Rodriguez told De Jesus that he had the drugs in the amount De Jesus needed. Rodriguez instructed De Jesus to meet him at 7:00 p.m. at De Jesus' apartment in the El Coto public housing project. De Jesus then returned to his apartment, and Lebron and De Leon arrived soon after. On De Jesus' instruction, Lebron and De Leon went to the supermarket around 6:45 p.m. to check out the prospective buyer, whom they did not know. After speaking with Agent Rivera and the confidential informant, and seeing the money, Lebron and De Leon returned to De Jesus' apartment. Rodriguez and his brother, Carlos, arrived at the apartment shortly thereafter, sometime around 7:00 p.m. All five then left for the supermarket.

Lebron drove to the supermarket in a Honda CRX with De Leon; Rodriguez drove a beige Oldsmobile, accompanied by his brother and De Jesus. At the supermarket, Lebron parked the Honda next to Agent Rivera's car; Rodriguez parked the Oldsmobile behind and perpendicular to the Honda, about fifteen feet from where Agent Rivera was standing. From his vantage Agent Rivera was able to view the driver of the Oldsmobile, whom he later identified at trial as Rodriguez.

From a plastic bag located on the front seat of the car, Rodriguez removed one kilogram of cocaine. He gave the plastic bag with the remaining kilogram to De Jesus and told him to take just one because the situation looked "nebulous." De Jesus exited with the kilogram of cocaine, and Rodriguez then drove the Oldsmobile slowly across the parking lot. De Jesus approached Agent Rivera, who was standing near his car with De Leon and Lebron, and handed him the drugs. After protesting that the deal was for two kilogram, Agent Rivera raised the trunk of his car as if to stash the drugs but actually signalling the arrest.

Police immediately converged on the scene. Agent Rivera observed Lebron reach for his waist, subdued him and recovered a gun tucked in his belt; De Jesus was also found to have a gun in his belt. Meanwhile, De Leon sought to run away and was caught by DEA agents after a brief chase. Rodriguez escaped in the Oldsmobile, but turned himself in a few days later when he learned that a warrant for his arrest had been issued.

In challenging the sufficiency of the evidence, Rodriguez assumes that the only evidence supporting the jury's verdict is Agent Rivera's identification testimony that he observed Rodriguez driving the beige Oldsmobile. Given the unfavorable conditions under which Agent Rivera viewed the driver--e.g., night, moving car, tense situation--Rodriguez argues that Agent Rivera's identification is unreliable and thus insufficient. In fact, Lebron and De Jesus testified extensively about Rodriguez' involvement in the transaction and identified him as the source of the cocaine.

Rodriguez apparently believes that because the jury acquitted him on the two gun counts, it must have rejected in toto the testimony of Lebron and De Jesus; both had testified unequivocally that Rodriguez had given them the guns used in the drug buy. But the jury is free to believe some portions of a witness' testimony and not others. Here, the testimony of Lebron and De Jesus connecting Rodriguez to the guns was relatively brief while their testimony connecting Rodriguez to the drugs was extensive, detailed and uniform.

Alternatively, the jury may very well have believed the testimony that Rodriguez provided the guns, but nevertheless concluded that the government had failed to prove all the elements of the specific firearm offenses. Count III required proof that a firearm was used during and in relation to a drug transaction; here the jury may (wrongly) have thought it mattered that Rodriguez was not carrying the firearms at the scene or that they were not drawn or fired. Count IV required proof that Rodriguez knew that the serial numbers of the weapons were obliterated. United States v. Haynes, 16 F.3d 29, 33-34 (2d Cir.1994).

Rodriguez also asserts that the district court erred at sentencing in giving him a two-level enhancement under U.S.S.G. Sec. 2D1.1(b)(1) for possession of a dangerous weapon during a drug transaction. He contends that his acquittal on the two gun charges precludes a finding that he "possessed" a gun in connection with the drug offense. He is mistaken.

We have previously held that because of the difference in burden of proof, an acquittal on a charge of using a firearm in connection with a drug transaction does not foreclose a sentencing enhancement for possession of a gun during a drug transaction. United States v. Pineda, 981 F.2d 569, 574 (1st Cir.1992). In addition, the sentencing enhancement requires only that it have been reasonably foreseeable that an accomplice would possess a gun, since under the guidelines a defendant is accountable for reasonably foreseeable conduct undertaken by others to advance their joint criminal venture. U.S.S.G. Sec. 1B1.3(a)(1)(B); United States v. Bianco, 922 F.2d 910, 911-14 (1st Cir.1991).

Here, there was direct testimony that Rodriguez gave Lebron one of the weapons, telling Lebron to watch De Jesus' back, and that he gave De Jesus a gun as well. Further, we have held that the nature of a large-scale drug transaction permits the sentencing court to infer that an accomplice's possession of a gun was reasonably foreseeable...