U.S. v. Lopez-Pena, LOPEZ-PEN

• Decision Date: 05 May 1989
• Docket Number: D,Nos. 87-2003,MARTINEZ-TORRES,LOPEZ-PEN,PEREZ-SOTO and F,MARTINEZ-TORRE,s. 87-2003
• Citation: 912 F.2d 1536
• Parties: UNITED STATES of America, Appellee, v. Esnoelefendant, Appellant. UNITED STATES of America, Appellee, v. Hector BURGOS, a/k/a Tito, Defendant, Appellant. UNITED STATES of America, Appellee, v. Elvinernando Rupert-Gonzalez, Defendants, Appellants. UNITED STATES of America, Appellee, v. Santos Jesusefendant, Appellant. UNITED STATES of America, Appellee, v. Luis Alfredoefendant, Appellant. UNITED STATES of America, Appellee, v. Epifanio, a/k/a Fanny, Defendant, Appellant. through 87-2008. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1536

912 F.2d 1536

UNITED STATES of America, Appellee, v. Esnoel LOPEZ-PENA, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Hector BURGOS, a/k/a Tito, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Elvin PEREZ-SOTO and Fernando Rupert-Gonzalez, Defendants,

Appellants.

UNITED STATES of America, Appellee, v. Santos Jesus MARTINEZ-TORRES, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Luis Alfredo MARTINEZ-TORRES, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Epifanio MARTINEZ-TORRES, a/k/a Fanny, Defendant, Appellant.

Nos. 87-2003 through 87-2008.

United States Court of Appeals First Circuit.

Heard May 5, 1989.

Decided Nov. 22, 1989.

Pia Gallegos, New York City, with whom Harry Anduze Montano, was on brief, for appellants Santos Jesus Martinez-Torres, Luis Alfredo Martinez-Torres and Epifanio Martinez-Torres.

Maria H. Sandoval with whom Law Offices of Nachman & Fernandez-Sein, Santurce, P.R., was on brief, for appellants Esnoel Lopez-Pena and Hector Burgos.

Luis R. Rivera, Old San Juan, P.R., with whom Marco Antonio Rigau, San Juan, P.R., was on brief for appellants Elvin Perez-Soto and Fernando Rupert-Gonzalez.

Jorge E. Vega-Pacheco, Asst. U.S. Atty., San Juan, P.R., with whom Daniel F. Lopez-Romo, U.S. Atty., Hato Rey, P.R., was on brief, for the U.S.

Before SELYA and ALDRICH, Circuit Judges, and RE, ^* Judge.

BAILEY ALDRICH, Senior Circuit Judge.

Between December 11, 1985, and January 31, 1986, Alvin G. Aponte-Marrero (Aponte), an undercover agent for the Bureau of Special Investigations of the Puerto Rico Justice Department, assisted by an informant, made five purchases of heroin in Santa Isabel, Puerto Rico. A hidden tape recorder recorded each of these transactions, and these tapes, along with the agent's testimony, were the primary evidence at the trial of the seven appellants. All seven were found guilty of conspiracy to distribute heroin. Epifanio Martinez-Torres (as some other defendants have the same family name, we will use the given one: Epifanio), was also found guilty of five counts of possession with intent to distribute and four counts of distribution. Hector Burgos was also found guilty of three counts of possession with intent to distribute, and Elvin Perez-Soto was also found guilty of two counts of possession with intent to distribute, and each of these three was also found guilty of two counts of distribution. These defendants do not contest the sufficiency of the evidence to convict them as conspirators, but the other four do. We will start with the one whose claim in this respect is the strongest.

Our previous opinions on this subject, see, e.g., United States v. Rivera-Santiago, 872 F.2d 1073, 1078-79 (1st Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 3227, 106 L.Ed.2d 576 (1989); United States v. DeLutis, 722 F.2d 902, 905-07 (1st Cir.1983), adequately set forth the method of analysis in evaluating such claims and we need not repave that road. Suffice it to say that the government must present clear evidence sufficient to establish beyond a reasonable doubt that an agreement to commit the substantive offense actually existed, and that the individual defendant knew of the agreement, had intent to agree, and had intent to commit the substantive offense. Here, the first part, whether a conspiracy to distribute heroin existed, is not contested, and we need only determine whether, viewing the evidence in the light most favorable to the government, there was sufficient proof of each defendant's knowledge and intent.

The direct evidence against Luis Alfredo Martinez-Torres (Alfredo), supplied both by the tape of his conversations with Aponte, and Aponte's testimony about the conversation, indicates that when informed that Aponte wished to purchase "packs of one hundred," Alfredo:

1. warned that the police were in the area;

2. repeatedly advised Aponte to go to a nearby store; and

3. warned Aponte that he would "get screwed" if he remained where he was.

While this evidence may sufficiently establish that Alfredo knew of, and intended to aid and abet, the scheme to distribute heroin, it sheds no illumination on the essence of Alfredo's conspiracy conviction: his intent to agree to facilitate the distribution. There exists, however, additional circumstantial evidence implicating him. Later that same day, Epifanio, after negotiating a price for the heroin, gave the same direction provided earlier by Alfredo, namely, to go to a store in the area, and that when Aponte went to the store, he indeed received packs of heroin. Alfredo thus not only provided a prospective heroin purchaser with a warning about police in the area and advice on avoiding arrest, that anyone might do as a friend, but also gave instructions that turned out to be correct on where to go to purchase packs of heroin. In addition, Aponte testified, and the tape could be found to confirm, that Epifanio later told him that when Epifanio was not available it was possible to negotiate with Alfredo. While this last could not establish a conspiracy, it corroborates. ¹ Alfredo's is a close case, but we think it so sufficiently distinguishable from United States v. DeLutis, ante, that we should accept the jury's verdict.

It is not without significance that this was not a hanging jury, but, rather, one that acquitted defendants on a number of counts. Thus Santos Jesus Martinez-Torres (Santos) was convicted on the conspiracy count and acquitted on six others. He, as other defendants, attempts to parse the evidence against him, and place each discrete piece in an innocuous context. Thus, Santos argues that evidence that "he wanted to sell heroin to" the agent on December 9 does not prove intent to agree with others to do so; that evidence of his presence on December 10 at a conversation between Epifanio and the agent about the purchase of heroin does not prove he agreed with Epifanio to sell heroin; that evidence that on December 11 he and his brothers Antonio and Epifanio met with a "go-between" brought by the agent to purchase heroin; that the group of four then entered the Martinez house, and that the "go-between" then left the house with heroin, does not prove Santos was "connected" to the drug; that evidence that on December 27, after a prior drug sale between Epifanio and the agent in which the agent pretended to be $20 short and Epifanio told the agent that the agent could pay the difference "in the next negotiation," Santos asked for and accepted $20 from the agent does not prove Santos had knowledge of the previous drug transaction; that evidence that on December 27 Santos informed the agent that "the hours for the negotiations had changed" because of police presence in the area, by not specifying the nature of the negotiations, does not prove that Santos agreed to participate in drug sales.

Such arguments hardly merit consideration. The agreement comprising the conspiracy need not be shown by direct evidence, and a defendant cannot escape conviction by dividing the evidence into separate single transactions, each of which is an insufficient basis for inferring that an agreement exists. See DeLutis, 722 F.2d at 906. Here, the "development and ... collocation of circumstances" was sufficient to permit the jury to infer the existence of a conspiracy and Santos's participation in it. See Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942).

The claims of Esnoel Lopez Pena and Fernando Rupert-Gonzalez, also convicted of conspiracy and acquitted on the other counts, are similarly unpersuasive, and we but summarize the evidence constituting a sufficient basis for inferring that they, also, agreed to participate in the conspiracy. A tape recording made on January 31 indicates the following conversation between Aponte, the informant, and a man identified by the agent as Rupert-Gonzalez:

Aponte: Is Fany in?

....

Rupert-Gonzalez: He's not here, you know?

....

Aponte: Or Santos; whoever's in.

Informant: Or Santos; whoever's in. They know us.

Rupert-Gonzalez: What did you come to get?

Informant: Another pack.

Rupert-Gonzalez: Did you bring the money?

....

Informant: Yeah, we always bring the money.

Rupert-Gonzalez: And, did you leave it with Tito [Burgos]?

Rupert-Gonzalez also discussed the price of the heroin, asked the agent and informant where they would wait, and, the agent testified, said he would send someone to speak with them.

Aponte testified that on January 17, after arranging the payment for a heroin purchase with Epifanio, he was directed to a store where Lopez Pena was waiting, that Lopez Pena signalled him to stop, and Burgos, who was standing next to Lopez Pena, then delivered bags containing heroin to the agent. Later, on January 31, the agent approached Lopez Pena and the conversation was recorded:

Aponte: Would the boys be down there: Fany [Epifanio] and Tonin [Antonio]?

Lopez Pena: I believe that Fany is in the house.

Aponte: It's to see if we can negotiate another pack. Couldn't you get him while I talk to him there, to leave the money with him now over there?

Lopez Pena: But, I can't tell you that I'll be able to get him for you, because I don't know where he is. You know, the one who deals is Fany.

Lopez Pena then summoned Burgos and remained present for a conversation between Burgos and the agent about the purchase of one hundred packs of heroin. ²

For four of the transactions for which Epifanio was convicted of distribution, and for two of the transactions for which Perez-Soto and Burgos were convicted of distribution, the three defendants were also convicted of possession with intent to distribute. Epifanio's argument, joined by Perez-Soto and Burgos, that the trial court erred in not ordering the government before trial to elect between the possession with intent to distribute and distribution counts, offenses clearly involving different elements, is so unsubstantiated as to not merit...