U.S.A v. Mercado

• Decision Date: 07 July 2010
• Docket Number: No. 09-2681.,09-2681.
• Citation: 610 F.3d 841
• Parties: UNITED STATES of Americav.Domingo MERCADO, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

610 F.3d 841

UNITED STATES of Americav.Domingo MERCADO, Appellant.

No. 09-2681.

United States Court of Appeals, Third Circuit.

Argued on June 2, 2010.

Filed July 7, 2010.

Laurence A. Narcisi III, Esq. (Argued), Guy R. Sciolla, Esq., Philadelphia, PA, for Appellant.

Maureen McCartney, Esq., Office of the United States Attorney, Tomika N. Stevens, Esq. (Argued), Office of the United States Attorney, Philadelphia, PA, for Appellee.

Before AMBRO, CHAGARES, and VAN ANTWERPEN, Circuit Judges.

OPINION OF THE COURT

VAN ANTWERPEN, Circuit Judge.

Domingo Mercado (“Mercado”) appeals the District Court's order denying his motion for judgment of acquittal. Because we find the evidence was sufficient to support the verdict, we will affirm the District Court's order.

I.

On September 10, 2008, a grand jury indicted Mercado and his two co-defendants Dionel Rodriguez-Nunez (“Rodriguez-Nunez”) and Hiram Coira-Soto, otherwise known as Morrisette (“Morrisette”) on one count of possession with intent to distribute 100 grams or more of heroin, and aiding and abetting the possession with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). The grand jury also indicted them on one count of possession with intent to distribute, and aiding and abetting the possession with intent to distribute, within 1000 feet of a school, in violation of 21 U.S.C. § 860(a). Rodriguez-Nunez pled guilty to both counts pursuant to a cooperation plea agreement. Morrisette was scheduled to plead guilty on February 5, 2009, but instead absconded. Mercado proceeded alone to trial on February 17, 2009.

At trial, the Government presented evidence that the Drug Enforcement Agency (“DEA”) had been working with a confidential informant, whom Rodriguez-Nunez knew as Poppy. On two occasions prior to the charges in question, Poppy completed controlled substance purchases from Rodriguez-Nunez. On August 13, 2008, at 11:00 a.m., DEA agents instructed Poppy to contact Rodriguez-Nunez and request 250 grams of heroin. Rodriguez-Nunez told Poppy he did not have that much heroin but would travel to New York City to pick some up and call Poppy when he returned.

Rodriguez-Nunez, however, did not go to New York City. Instead, he contacted Morrisette about getting heroin to sell to Poppy. Rodriguez-Nunez testified that he had never done business with Morrisette before, but believed that Morrisette could provide for his customer's needs.

On August 14, 2008, starting at 7:00 a.m., DEA agents set up surveillance at the 200 block of East Allegheny Avenue across the street from Rodriguez-Nunez's residence. Rodriguez-Nunez left his house at approximately 11:00 a.m. He made one stop and then arrived at a barber shop located at the intersection of Front and Lippincott in Philadelphia at 11:40 a.m., less than three blocks from his house. Rodriguez-Nunez stayed in the area around the barber shop for most of the afternoon, talking to numerous people.

Although DEA agents did not observe Rodriguez-Nunez talking with Morrisette or Mercado in front of the barber shop, Rodriguez-Nunez testified that he talked to them twice throughout the day. He said Morrisette pulled up in a black Ford Taurus sometime before noon.¹ Mercado sat in the passenger seat. Rodriguez-Nunez stood outside the passenger-side window of the car and spoke with Morrisette about purchasing heroin. Then, Morrisette and Mercado drove away. A short time later, Morrisette dropped by the barber shop again with Mercado in the passenger seat.² This time, Morrisette was driving a maroon GMC Envoy registered in his name. Standing on the street and speaking to Morrisette through the passenger-side window, Rodriguez-Nunez and Morrisette further discussed which drugs Morrisette had available to sell to Rodriguez-Nunez.

Rodriguez-Nunez testified that he and Morrisette exchanged several calls over cellular phones throughout the day. Originally, Rodriguez-Nunez agreed to pay $62 for each gram of heroin, but in a later call he asked Morrisette if he could decrease the price to $60 per gram. Morrisette responded by saying he would “patch [Rodriguez-Nunez] on with the owner of [the] stuff.” (J.A. 115.) Immediately thereafter, a new voice spoke into the phone and confirmed that the price was $62 a gram. Neither Morrisette nor the “owner” ever identified the new voice by name.

Another confidential informant called Rodriguez-Nunez between 4:30 p.m. and 5:00 p.m. to ask if Rodriguez-Nunez had succeeded in acquiring some heroin. Rodriguez-Nunez responded that he was returning from picking up the heroin and was going to meet with Poppy at the Cousin's Supermarket parking lot across the street from his house. Based on this information, law enforcement set up surveillance in the supermarket's parking lot.

Poppy and Rodriguez-Nunez met at 5:15 p.m. Rodriguez-Nunez told Poppy he did not have the heroin yet, but that Poppy should come back in ten minutes. Then Rodriguez-Nunez left the parking lot, briefly stopped by the barber shop, and returned to his residence on Allegheny Avenue. Rodriguez-Nunez waited on his stoop for Morrisette to arrive with the heroin.

Sometime later, Morrisette pulled up in front of Rodriguez-Nunez's house in the black Ford Taurus. Again, Mercado was in the passenger seat. Rodriguez-Nunez walked over to the passenger-side window and reached into the car. Someone handed him a wrapped package of heroin, which he put directly in his pocket. Rodriguez-Nunez testified that he is unsure whether Mercado or Morrisette passed him the package. Surveillance officers were also unable to see which one transferred the package to Rodriguez-Nunez.

Morrisette drove away. Rodriguez-Nunez crossed the street to deliver the package to Poppy, but DEA agents arrested Rodriguez-Nunez before he could. DEA agents took Rodriguez-Nunez inside his residence, executed a search of his house, and recovered the heroin package from his right, rear pocket. Rodriguez-Nunez, through a Spanish interpreter, immediately began cooperating. He told the DEA agents he received the heroin from a man named Morrisette, which he had yet to pay for, and that he was supposed to call when he had the money.

At the DEA agents' direction, Rodriguez-Nunez called Morrisette at 6:20 p.m. and told him to come pick up the money. A short while later, Morrisette and Mercado drove up, this time in the maroon GMC Envoy. The DEA agents arrested both Morrisette and Mercado.

Rodriguez-Nunez testified that although he saw Mercado with Morrisette every time he saw Morrisette that day, he never conversed with Mercado. When asked if Mercado had anything to do with the drugs, Rodriguez-Nunez stated, “I wasn't dealing with that man. Whatever they did among themselves, you know, Morrisette's the one that knows. It's their business.” (J.A. 139.)

Agent Poules testified that after DEA agents arrested Rodriguez-Nunez, Morrisette, and Mercado, he confiscated their cellular phones. The phone he took from Rodriguez-Nunez was registered to the same number Poppy used to call Rodriguez-Nunez. The number for Morrisette's phone was consistent with the number Rodriguez-Nunez dialed to request that Morrisette pick up the money. Agent Poules also retrieved Mercado's phone and subpoenaed the toll records relating to the three phones.

The toll records revealed that the phones registered to the parties exchanged several phone calls on August 14, 2008 before 11:00 a.m. Of course the toll records do not show that the parties themselves made these calls. Relevant to this case, however, is the fact Rodriguez-Nunez's phone called Morrisette's phone two times that morning, both resulting in short voice messages. Of particular note is the fact that before Morrisette responded to Rodriguez-Nunez, three short calls were placed between Morrisette's phone and Mercado's phone. Only after those calls were made did Morrisette respond to Rodriguez-Nunez's call.³ There were no phone calls between Mercado and Rodriguez-Nunez-only between Mercado and Morrisette and Morrisette and Rodriguez-Nunez.

The Government's case also included three stipulations: the package recovered contained heroin, the distance between the parking lot and the school is less than 1000 feet, and law enforcement maintained the proper chain of custody for documents recovered until the point the documents were introduced into evidence.

Mercado moved for a Rule 29 judgment of acquittal after the Government presented all of its evidence, save one witness. The District Court listened to brief arguments on the motion, but deferred the ruling until after the jury verdict. The jury convicted Mercado on both counts.

After the jury verdict, the District Court asked counsel to reargue the motion, focusing their Rule 29 arguments on Mercado's potential liability as an aider or abettor or via constructive possession. It stated:

It's no secret that I disagree with the jury verdict in this case. I'm not saying that the defendant is not guilty.... I think looking hard at the meaning of “reasonable doubt,” ... if I had been sitting as a juror, I would have voted for a verdict of not guilty. But that's not the test. My disagreement with the jury verdict doesn't carry the day for the Defense, and yet I'm driven to this conclusion. By the Government's argument, I think the fact that the defendant was present four times takes this case out of the rule that mere presence, where the drugs are being delivered, and mere presence in the car in which they're being delivered, is not enough. Mere presence once, yes. Mere presence four times, I say no. That prevents me from saying that no rational trier of the fact could find the defendant guilty beyond a reasonable doubt.

(J.A. 268-69.) Thus, the District Court denied the motion for judgment of acquittal.

II.

The District Court had subject matter jurisdiction over this case pursuant to 18 U.S.C. § 3231, and we have appellate jurisdiction pursuant to 28 U.S.C. § 1291.

We apply a particularly deferential standard when...