U.S. v. Llinas, 01-1799.

• Decision Date: 18 June 2004
• Docket Number: No. 01-1799.,01-1799.
• Citation: 373 F.3d 26
• Parties: UNITED STATES of America, Appellee, v. Wanda LLINAS, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

373 F.3d 26

UNITED STATES of America, Appellee, v. Wanda LLINAS, Defendant, Appellant.

No. 01-1799.

United States Court of Appeals, First Circuit.

Heard May 8, 2004.

Decided June 18, 2004.

Rafael F. Castro Lang for appellant.

Thomas F. Klumper, Assistant United States Attorney with whom H.S. Garcia, United States Attorney and Sonia I. Torres-Pabón, were on brief, for appellee.

Before BOUDIN, Chief Judge, LIPEZ and HOWARD, Circuit Judges.

HOWARD, Circuit Judge.

Following a five-day trial, a jury convicted defendant-appellant Wanda Llinas of both conspiracy to possess narcotics with intent to distribute and intentional use of a communication device in facilitating the conspiracy. Llinas now appeals these convictions, alleging that there was (1) insufficient evidence to support the verdicts and (2) reversible error arising out of the district court's decision to admit certain evidence in violation of Rule 12.1(b) of the Federal Rules of Criminal Procedure. We affirm.

I.

We recite the relevant facts in the light most favorable to the verdicts. See United States v. Echeverri, 982 F.2d 675, 676 (1st Cir.1993).

Daniel Sanchez and Wilson Martínez Cotto became friends in or about January 2000, and, within a few days, Sanchez began selling heroin to Martínez for distribution. Soon thereafter, Sanchez told Martínez about a recent encounter he had had with a man called "Guillermo," who had proposed that Sanchez visit Puerto Rico to conduct some drug deals. Martínez was interested. Neither Sanchez nor Martínez was aware that Guillermo was a government informant.

In June 2000, Sanchez and Martínez traveled together to Puerto Rico, where Sanchez was to introduce Martínez to Guillermo. For his part, Martínez tended to the lodging details, initially arranging for the pair to stay at a relative's house. After arriving in Puerto Rico, however, these initial arrangements fell through. In search of a place to stay, Martínez then phoned Llinas's stepfather, a family friend, and arranged for the men to stay at his house. Llinas lived with her stepfather.

On June 16th, Llinas drove Sanchez and Martínez to a nearby bakery. While Llinas waited in her car with her stepfather, Sanchez and Martínez entered the bakery and met with Guillermo and his partner, Carrasquillo, an undercover agent for the Drug Enforcement Administration. There, the men negotiated a transaction in which Martínez agreed to provide, on a later date, two kilograms of heroin in exchange for eleven kilograms of cocaine.

Approximately one-half hour after entering the bakery, Sanchez and Martínez exited, and Llinas drove them back to her stepfather's home. Having earned his commission by introducing Martínez to Guillermo, Sanchez departed Puerto Rico.

Martínez did not hear from Carrasquillo until June 30th, when they spoke via cellular telephone. During the course of this coded-language conversation, Martínez informed Carrasquillo that "at hand, I have one and a half ... then by Sunday, I'll have another two ... it would be three and a half." The men agreed to exchange the drugs — or, as Martínez put it, "cook the goose" — on July 3rd.¹

On the morning of July 3rd, Martínez contacted Carrasquillo to arrange the meeting for that day. A few hours later, in Llinas's presence, Martínez again phoned Carrasquillo and informed him that he "went by the office and [] picked the papers up there with the, the, stamps on them and all that...." The men then agreed to meet at the parking lot of El Comandante racetrack between 4:00 and 4:30 p.m. At this point in the conversation, Martínez handed Llinas the cellular phone to receive directions to the racetrack.

According to Llinas, Martínez had asked her to drop him off at the racetrack, where he was to meet a friend who would pick him up. After dropping Martínez off, Llinas and her boyfriend, José Arroyo, planned on driving to the beach for the Fourth-of-July holiday.

On the way to the racetrack, Llinas and Martínez picked up Arroyo in a rental car that Arroyo allegedly had rented for the weekend. They subsequently made a quick stop at a supermarket to purchase provisions for the beach. While Llinas and Arroyo were inside, Martínez waited in the parking lot and made two additional calls to Carrasquillo.

Having completed this errand, the trio set off for the rendezvous at the racetrack. Martínez was driving; Arroyo was in the passenger seat and Llinas was in the back. Next to Llinas in the backseat were two cellular telephone boxes stacked inside a large plastic bag. The boxes contained plastic bags filled with 1787 grams of heroin.

At approximately 4:30 p.m., they arrived at the racetrack's parking lot. Martínez parked the car, exited, and approached Carrasquillo. Llinas and Arroyo remained inside. According to Llinas's testimony, Martínez had asked them to wait "because he was going to decide where he was going with his friend."

Upon agreeing with Carrasquillo to proceed with the exchange, Martínez walked over to the car, opened the rear door, and asked Llinas to hand him the bag next to her. According to Llinas, after she handed Martínez the bag that she believed contained cellular telephones, she "asked him whether we could leave yet and he said no because the friend that was going to pick him up hadn't arrived yet." Carrasquillo and Martínez then moved to the back of the car to inspect the bag's contents. Once certain that the boxes contained a heroin-like substance, Carrasquillo signaled for the arrest of Martínez, Llinas, and Arroyo.

On July 26, 2000, Llinas was arraigned on a three-count indictment. Count I charged Llinas, Arroyo and Martínez with conspiracy with the intent to possess and distribute two kilograms of a substance containing a detectable amount of heroin and five kilograms of a substance containing a detectable amount of cocaine, in violation of 21 U.S.C. § 841(a)(1); Count II charged Llinas and her co-defendants with aiding and abetting possession with the intent to distribute approximately two kilograms of heroin, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; and Count III charged Llinas and Martínez with aiding and abetting each other in using a communication facility to facilitate the conspiracy, in violation of 21 U.S.C. § 843(b) and 18 U.S.C. § 2.

On November 21, 2000, a joint trial began; Llinas and Arroyo were co-defendants.² On November 28, 2000, a jury found Llinas guilty on Counts I and III and not guilty on Count II. Arroyo was acquitted on all counts. On April 24, 2001, the district court sentenced Llinas to concurrent prison terms of 123 months for Count I and 24 months for Count III, three years of supervised release, and $200 in special assessments.

This appeal followed.

II.

We are presented with two issues on appeal: (1) whether there was sufficient evidence to support Llinas's convictions; and (2) whether the district court erred when it allowed the government to introduce certain documents and testimony, neither of which were noticed to Llinas as allegedly required by Rule 12.1(b) of the Federal Rules of Criminal Procedure.

Given these separate issues, two standards of review apply. First, in deciding sufficiency challenges, "we review all the evidence, direct and circumstantial, in the light most favorable to the prosecution, drawing all reasonable inferences consistent with the verdict, and avoiding credibility judgments, to determine whether a rational jury could have found guilt beyond a reasonable doubt."³ United States v. Baltas, 236 F.3d 27, 35 (1st Cir.2001); see also United States v. Ruiz, 105 F.3d 1492, 1495 (1st Cir.1997) (noting that "we review de novo the defendants' challenge to the evidentiary sufficiency of their convictions, construing the evidence in the light most favorable to the government"). As to the second issue, because the district court's decision to admit the alibi-rebuttal evidence was based on its construction of Rule 12.1(b), we proceed de novo. See United States v. Randazzo, 80 F.3d 623, 627 (1st Cir.1996) (noting that, because the district court's rejection of a motion turned on its construction of a rule of criminal procedure, the court would review the decision de novo); see also United States v. Encarnacion, 239 F.3d 395, 397 (1st Cir.2001) ("We review de novo the district court's construction of the Federal Rules of Criminal Procedure." (citation omitted)).

A. Sufficiency of the Evidence

Llinas's principal argument on appeal is that her convictions should be reversed because there was insufficient evidence at trial to sustain either (1) a finding that she conspired to possess narcotics with the intent to distribute or (2) a finding that she used a communication device to facilitate such a conspiracy. We disagree.

(1) Conspiracy Count

Llinas contends that "the evidence taken as a whole failed to establish her knowing, intentional participation in the drug conspiracy... beyond a reasonable doubt...." More specifically, she argues that, "[a]side from the total lack of evidence presented by the government concerning her knowledge and criminal intent[,] there is a substantial amount of evidence that established that [she] did not know about [the conspiracy]."

To prove the elements of the crime of conspiracy, the government must show the existence of a conspiracy, the defendant's knowledge of the conspiracy, and the defendant's voluntary participation in the conspiracy. More specifically, to establish that a defendant belonged to and participated in a conspiracy, the government must prove two kinds of intent: intent to agree [with her co-conspirators] and intent to commit the substantive offense. Such proof may consist of circumstantial evidence, including inferences from surrounding circumstances, such as acts committed by the defendant that furthered the conspiracy's purposes. The government need not prove that a co-conspirator knew all of the details or participated in all of the objectives of the plan.

United States...