U.S. v. Lopez-Lopez
| Decision Date | 19 February 2002 |
| Docket Number | No. 00-2016.,No. 00-2020.,No. 00-2018.,No. 00-2017.,00-2016.,00-2020.,00-2017.,00-2018. |
| Citation | 282 F.3d 1 |
| Parties | UNITED STATES, Appellee, v. Ruben LOPEZ-LOPEZ, Defendant, Appellant. United States, Appellee, v. Carlos Santana, Defendant, Appellant. United States, Appellee, v. Ramon Luciano-Del-Rosario, a/k/a Ruben Luciano-Del-Rosario, a/k/a Ruben Luciano-De-La-Rosa, Defendant, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
Alexander Zeno for appellant Ruben Lopez-Lopez.
Maria H. Sandoval for appellant Carlos Santana.
Rafael F. Castro-Lang for appellant Ramon Luciano-del-Rosario.
Timothy S. Vásquez, Assistant United States Attorney, with whom Guillermo Gil, United States Attorney, and Jorge E. Vega-Pacheco and Thomas F. Klumper, Assistant United States Attorneys, were on brief for appellee.
Before BOUDIN, Chief Judge, KRAVITCH,* Senior Circuit Judge, and LYNCH, Circuit Judge.
Ruben Lopez-Lopez, Ramon Luciano-del-Rosario, and Carlos Santana were convicted of importation of, and possession with intent to distribute, approximately 700 kilograms of cocaine and for aiding and abetting these crimes. They were each sentenced to 235 months, or slightly less than 20 years, in prison.
Lopez-Lopez, Luciano, and Santana challenge their convictions on numerous grounds. Summing the arguments of all three, they claim the district court erred by: (1) denying Santana's motion to dismiss based on "inadequate" legal instruction to the grand jury; (2) refusing to suppress evidence obtained from their arrests, which Lopez-Lopez alleges to have been without probable cause; (3) admitting identification evidence of Luciano, which they allege to have violated their due process rights; (4) admitting testimony that Lopez-Lopez told Luciano to remain silent when the police were questioning Luciano; (5) allowing the government's witness to provide expert testimony based on his prior experiences prosecuting drug cases; (6) ordering the prosecutor to demonstrate the use of a spotlight in the courtroom; (7) refusing to instruct the jury that it could consider prior testimony by government witnesses as substantive evidence on behalf of the appellants under Fed.R.Evid. 801(d)(1)(A); (8) refusing to instruct the jury to acquit Santana if the jury determined that Santana was just as likely to have been smuggling aliens; (9) sentencing them on the evidence presented, which they allege is insufficient; (10) sentencing them in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); and (11) refusing to allow them access to discovery concerning their constitutional challenge to the appointment of United States Attorney Guillermo Gil.
Although this is a close case on the sufficiency of the evidence of Santana's guilt, we reject appellants' arguments and uphold their convictions and sentences. We note at the outset that we reject appellants' argument that the drug laws under which they were sentenced are unconstitutional under Apprendi.
On the night of March 23, 1999, at approximately 3:00 a.m., the Rapid Action Force Unit ("FURA") of the Puerto Rico Police was on routine patrol at sea. Three agents were on the patrol boat: Waldy Velez, Pedro Rivera, and Hector Camacho. On their radar, the FURA agents spotted another boat, about a quarter mile out at sea, with its lights off. The FURA boat approached this other boat. When the FURA boat was approximately 25 feet from the boat on radar, the agents shined the FURA boat's two spotlights on the other boat, which both agents Velez and Rivera saw was a speed boat with three men aboard. The speed boat responded by speeding up, colliding with the FURA boat, and then heading on a zig-zag course toward shore. As the speed boat sped away, its occupants started to throw items overboard.
A few minutes later, when the speed boat neared the shore-line of Isla Matei, a small uninhabited island off the coast of mainland Puerto Rico, the speed boat's occupants abandoned ship, swam or waded to shore, and then ran onto the island. They were carrying plastic bags. Instead of pursuing the three men, the FURA agents pursued the now unmanned speed boat and gained control of it. They found 700 kilograms of cocaine in the speed boat and in the surrounding sea. The agents also found t-shirts, rain gear, wetsuits, a marine radio, a Global Positioning System ("GPS"), a satellite telephone, and a cellular telephone.
One hour later, at approximately 4:00 a.m., two police officers of the Yauco narcotics unit, Jose Alarcon and Octavio Cruz, were driving down Highway 324. They had been advised that FURA agents were pursuing a fleeing vessel with a load of drugs, and were headed toward the Phosphorescent Bay area where there might be land crews waiting to assist the drug-carrying boat.
On their way to the bay, the Yauco police officers saw three men walking along Highway 324 in a rural area at least two miles from Isla Matei, where the boat's occupants had fled. These three men turned out to be the appellants: Lopez-Lopez, Luciano, and Santana. Officers Alarcon and Cruz did not know that the drug boat had been abandoned, nor did they know that three persons had fled the boat. The three men ran into a field by the roadside and hid. There, officers Alarcon and Cruz apprehended them. Officers Alarcon and Cruz, with the assistance of police officers from the town of Lajas, who had arrived to assist them, arrested the men and took them to the Guanica police station. At the time of their arrest, only Lopez-Lopez spoke, and he stated that he had been robbed and abandoned in the area. All three men appeared damp and exhausted. Only these three were found in the police search of the area.
At approximately 6:00 a.m., agents Velez and Rivera — two of the FURA agents who had encountered and pursued the speed boat — arrived at the Guanica station. Lopez-Lopez, Luciano, and Santana were being held in a central area on the first floor of the small, two-story structure. Upon seeing the three men in handcuffs, agents Velez and Rivera immediately identified Luciano as the pilot of the speed boat, but the agents did not identify Lopez-Lopez or Santana. Neither a lineup nor a photographic display was ever conducted. The agents later conducted ion and fiber tests of the three men and their clothing in order to detect the presence of cocaine or fibers from the bales recovered from the speed boat. All of the tests returned negative results.
Three weeks later, Yauco police officer Cruz, accompanied by customs agent Ismael Padilla and other agents, returned to the site of the earlier arrests. The purpose of their visit to the field was for officer Cruz to show agent Padilla where the arrests occurred, not to gather evidence. Although no evidence was found in the field at the time the three were arrested, this time the agents found several items, including a cellular telephone and a bag containing money and two wallets. None of the wallets contained identification of the defendants. Through telephone record analysis of the telephone found in the field, it was determined that, at 3:27 a.m. on the night the speed boat was apprehended and the defendants were arrested, a call was placed from the cellular telephone to a telephone accessible to residents in the building where Lopez-Lopez lived.
Lopez-Lopez, Luciano, and Santana were indicted on two counts: (1) possession with intent to distribute, and aiding and abetting possession with intent to distribute, 700 kilograms of cocaine, 21 U.S.C. § 841(a)(1); 18 U.S.C. § 2, and (2) importation, and aiding and abetting importation, of 700 kilograms of cocaine, 21 U.S.C. § 952(a); 18 U.S.C. § 2. After a month-long jury trial, the three defendants were convicted on both counts. At sentencing, the district court determined in separate proceedings that, given the nature of the offenses and the amount of cocaine involved, each defendant's base offense level was 38. Given a criminal history category of I, the district court found that the guidelines imprisonment range was 235 to 293 months. On July 10, 2000, the trial judge sentenced each defendant to 235 months in prison.
Santana renews his pretrial argument that the indictment should be dismissed because he says the grand jury was inadequately instructed in violation of Fed. R.Crim.P. 6 and the Due Process Clause of the Fifth Amendment. He requests that we review the grand jury minutes in order to answer several questions he raised in the district court about the grand jury instructions.1
We review the district court's refusal to dismiss the indictment de novo because Santana's claim is a purely legal one. United States v. Balsam, 203 F.3d 72, 81 n. 8 (1st Cir.2000) (de novo review). We affirm the district court's denial of Santana's motion to dismiss the indictment for two reasons. First, under federal law the prosecutor is not obligated to provide legal instruction to the grand jury. Second, the alleged errors in the grand jury proceedings are harmless in light of the petit jury proceedings and verdict.
"[N]either the Fifth Amendment nor any other constitutional provision prescribes the kind of evidence upon which grand juries must act." Costello v. United States, 350 U.S. 359, 362, 76 S.Ct. 406, 100 L.Ed. 397 (1956). "Courts ... generally have found that the prosecutor satisfactorily explains the offense to be charged by simply reading the statute to the grand jury."2 4 Criminal Procedure § 15.7(g), at 450 (LaFave et al., eds., 2d ed.1999). "The prosecutor is under no obligation to give the grand jury legal instructions." United States v. Zangger, 848 F.2d 923, 925 (8th Cir.1988); accord United States v. Kenny, 645 F.2d 1323, 1347 (9th Cir.1981). Santana's motion to dismiss the indictment was properly denied.
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