U.S. v. Lizardo, 04-1714.
| Decision Date | 26 April 2006 |
| Docket Number | No. 04-1714.,04-1714. |
| Citation | 445 F.3d 73 |
| Parties | UNITED STATES of America, Appellee, v. Meraldo LIZARDO, Defendant, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
James B. Krasnoo, with whom the Law Offices of James B. Krasnoo was on brief, for appellant.
Mark T. Quinlivan, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, were on brief, for appellee.
Before TORRUELLA and LYNCH, Circuit Judges, and LASKER,* Senior District Judge.
A jury convicted defendant Meraldo Lizardo for conspiring to distribute cocaine in violation of 21 U.S.C. § 846 and for unlawful use of a communication facility in violation of 21 U.S.C. § 843(b). The district court sentenced Lizardo to a term of imprisonment of 60 months. On appeal, Lizardo contests both the conviction and the sentence. We affirm.
From 1997 to 2000, Lizardo was a deputy sheriff in the Essex County Sheriff's department in Massachusetts. He was a member of the Warrant Apprehension Unit and worked with state and local law enforcement. The jury convicted Lizardo of conspiring to distribute cocaine with two other individuals, Carlos Bello and Tilson Yturrino. Before presenting the factual background of this case, we give a brief summary of the roles played by Bello and Yturrino.
Bello owned a business in Lawrence, Massachusetts, called Bello's Multi Services, from which he would sell cocaine to dealers, who in turn sold the cocaine on the street. Bello and Lizardo knew each other, and they would meet at Bello's Multi Services. Bello pled guilty to conspiracy to distribute cocaine and was sentenced to 120 months' imprisonment.
Yturrino purchased cocaine from Bello at Bello's Multi Services over a period of about seven years. Yturrino and Lizardo met each other on several occasions at Bello's Multi Services. Yturrino ran a cocaine distribution business, and he had several employees selling cocaine on the streets. Yturrino pled guilty to conspiracy to distribute cocaine and was sentenced to 97 months' imprisonment. In exchange for his testimony against Lizardo, Yturrino's sentence was reduced to 60 months.
Law enforcement officers were investigating Bello for drug crimes and obtained a wiretap authorization to monitor his cell phone. In a December 16, 1999 conversation between Bello and a person named "Enano," Enano chastised Bello for posting bail for a person who had been arrested for counterfeiting money because that could involve federal law enforcement authorities. Enano then became a suspect in the investigation. Lizardo later admitted that he was the person named Enano in this conversation.
On December 17, Sergeant Donald Kennefick interviewed an inmate at the Essex County Jail regarding drug trafficking in Lawrence, and Lizardo assisted in the interview by providing Spanish translation. It is not clear if this interview was related to drug trafficking by Bello or Yturrino. After the interview, Lizardo initiated a conversation with Kennefick, which the government contends was an attempt to divert investigation of drug trafficking away from Bello. Lizardo mentioned a recent fire in Lawrence that had burned down several businesses, including Bello's Multi Services. He stated that the fire was caused by a dispute over heroin trafficking in a sandwich shop. When Kennefick responded that he thought that the dispute involved cocaine trafficking and not heroin trafficking, Lizardo stated that the shoe store across the street was run by cocaine dealers. When Kennefick asked Lizardo for more information about this drug trafficking, Lizardo responded that he had already given this information to Mark Rivet of the Lawrence Police Department. In fact, Lizardo never had this conversation with Rivet. Lizardo did not mention Bello or Bello's business to Kennefick during this conversation.
At 11:15 a.m. the same day, Lizardo called Bello and had the following conversation:
Lizardo: What have you done?
Bello: What happened?
Lizardo: Nothing man.
. . . .
Bello: What happened, any problem?
Lizardo: No, no, I said to take care.
Bello: What happened?
Lizardo: I can't tell you over the phone but take care okay.
Bello: But . . . but . . . damn . . . what's going on old man?
Lizardo: I can't tell you over the phone man.
At 12:44 p.m., Lizardo and Bello had another conversation:
Lizardo: Did you already eat?
Bello: That if I ate? No.
Lizardo: It's better to wait for me there. You know right there at . . . where we usually go to eat sometimes.
Bello: Uh-uh. Hold on, hold on. Where we usually go. More or less what is the name of the place?
Bello: What's the first sign of this place?
Lizardo: It starts with a number.
Bello and another man then drove to the Ninety-Nine Restaurant, while under surveillance by undercover officers. The officers entered the restaurant and observed Bello sitting with Lizardo. After leaving the restaurant, Bello and Lizardo had another phone conversation where they discussed the officers whom they knew were surveilling them at the restaurant.
Officers intercepted two phone calls on December 21. Around 3:11 p.m., Bello had a conversation with a person named Daniel:
Bello: Is it for whenever or does it have to be right now?
Daniel: . . . I want to go tonight and buy me some shoes.
Bello: Oh, alright.
Daniel: Do you understand me? You see, it's because I'll be going to the party tonight.
. . . .
Bello: . . . but so we're partying tonight, right?
Daniel: Yes!
Around 6:49 p.m. the same day, Bello and Lizardo had the following conversation:
Bello: Until what time is your detail?
Lizardo: Until 11:00 p.m.
Bello: So that you could do it today?
. . . .
Lizardo: What . . . we have to make a trip to Boston?
Bello: No . . . right there . . . in any one of those places.
That night around 11:30 p.m., an officer surveilling Bello's residence saw Lizardo arrive and enter Bello's residence. He then saw Bello drive a minivan out of the garage with Lizardo as a passenger. Six unmarked police vehicles followed the minivan.
The officers followed Bello to Lynn, Massachusetts, and observed him driving at a high rate of speed. Bello parked outside a nightclub named Casa del Sol. Several of the surveillance vehicles drove past Bello, and one officer observed Lizardo pointing out the undercover vehicles to Bello. The officers saw Bello and Lizardo enter the nightclub.
Around 1:00 a.m., Bello and Lizardo left the nightclub and got back in the minivan. Bello drove on the highway at a slow rate of speed, about 45-50 miles per hour. At one point, Bello exited the highway, but at the bottom of the ramp he made a U-turn to get back on the highway. An officer who was driving behind them saw Bello and Lizardo looking directly at him as they passed each other. The officers continued to follow the minivan and saw Bello exit onto a rotary. The officers pulled over before the rotary and saw Bello drive around the rotary five times before continuing. At this point, the officers broke off their surveillance.
The next morning, December 22, Lizardo called Sergeant Kennefick and told him that he went to a nightclub the previous night with his cousin (Bello was not his cousin), an informant who could provide information about heroin dealers in Lawrence. Kennefick asked to meet his cousin, and Lizardo said he could arrange a meeting but never did.
On April 13, 2000, officers interviewed Lizardo regarding his involvement with Bello's cocaine trafficking operation. Lizardo said that he had known Bello for about two years and was aware that he had been a cocaine dealer, but he thought that Bello had since stopped dealing cocaine. The officers showed Lizardo the transcripts of the telephone calls between Lizardo and Bello, and Lizardo admitted that he was the person on the phone with Bello. Lizardo also admitted to conducting countersurveillance on December 17 and 21 and stated, "It was wrong for me to burn surveillance." The officers asked him if he had ever taken advantage of his position as deputy sheriff to run warrant checks or Registry of Motor Vehicle checks for Bello,1 and after remaining silent for about three minutes, Lizardo responded that he had not. Lizardo initially admitted to having warned Bello that he was under police investigation but later denied that he had done so. At the conclusion of the interview, the officers arrested Lizardo.
Yturrino testified at trial as to his relationship with Bello and his knowledge of the relationship between Bello and Lizardo. From 1993 to 1999, Yturrino bought cocaine from Bello at Bello's Multi Services. He purchased approximately a kilogram of cocaine every two weeks.
On one occasion in 1998, Yturrino went to Bello's Multi Services and was startled to see Lizardo wearing his uniform in Bello's office. After Lizardo had left, Bello assured Yturrino that Lizardo was under his control. On about eight or nine occasions, Lizardo was present when Yturrino delivered thousands of dollars in cash to Bello. He would openly place the cash on Bello's desk and not make any effort to conceal his actions. On about fifteen occasions, Lizardo was present when Yturrino picked up kilogram-sized packages from Bello. He described one occasion in particular, where in Lizardo's presence, Bello took a 1.5 kilogram block of cocaine out of a bag, put it in a Nextel2 box, and gave it to Yturrino, who put it in his briefcase and departed.
Yturrino also met with Bello in Lizardo's presence at nightclubs and restaurants, including the Ninety-Nine Restaurant. During these meetings, Yturrino and Bello spoke openly about their cocaine business. Yturrino also talked to his employees on his cell phone and brought his business ledger with him.
To avoid the attention of law enforcement,...
To continue reading
Request your trial
-
U.S. v. Heredia
...in their caselaw regarding the appropriate standard of review, but have declined, thus far, to resolve them. See United States v. Lizardo, 445 F.3d 73, 85 (1st Cir.2006); United States v. McConnel, 464 F.3d 1152, 1158 n. 3 (10th Cir.2006). And, as previously mentioned, the D.C. Circuit has ......
-
United States v. Valdivia
...of jurors.” We review the admission of lay opinion and expert testimony for manifest abuse of discretion. United States v. Lizardo, 445 F.3d 73, 83 (1st Cir.2006); United States v. Montas, 41 F.3d 775, 783 (1st Cir.1994). The admissibility of lay opinion testimony is governed by Federal Rul......
-
U.S. v. Heredia
...in their caselaw regarding the appropriate standard of review, but have declined, thus far, to resolve them. See United States v. Lizardo, 445 F.3d 73, 85 (1st Cir.2006); United States v. McConnel, 464 F.3d 1152, 1158 n. 3 (10th Cir.2006). And, as previously mentioned, the D.C. Circuit has ......
-
United States v. Shaw
...of the fact in question; second, that the defendant consciously and deliberately avoided learning of that fact.” United States v. Lizardo, 445 F.3d 73, 85 n. 7 (1st Cir.2006) (finding no error in quoted instruction). Willful blindness is determined using a subjective standard, and thus “[t]......
-
Opinion
...personal perceptions as a participant in a conversation. There was no error in admission of the testimony. United States v. Lizardo , 445 F.3d 73 (1st Cir. 2006). A witness’s testimony, in the form of opinions or inferences, is limited to those opinions or inferences which are: (a) rational......
-
Opinion
...personal perceptions as a participant in a conversation. There was no error in admission of the testimony. United States v. Lizardo , 445 F.3d 73 (1st Cir. 2006). A witness’s testimony, in the form of opinions or inferences, is limited to those opinions or inferences which are: (a) rational......
-
Opinion
...personal perceptions as a participant in a conversation. There was no error in admission of the testimony. United States v. Lizardo , 445 F.3d 73 (1st Cir. 2006). A witness’s testimony, in the form of opinions or inferences, is limited to those opinions or inferences which are: (a) rational......
-
Federal criminal conspiracy.
...is only necessary to show conspirators knew "the essential nature of the plan" and their connection to it); see United States v. Lizardo, 445 F.3d 73, 82 (1st Cir. 2006) (holding defendant had sufficient knowledge of conspiracy although he did not know all the details); United States v. Ndi......