U.S. v. Montilla-Rivera, MONTILLA-RIVER

• Decision Date: 09 April 1997
• Docket Number: MONTILLA-RIVER,D,No. 96-1773,96-1773
• Parties: UNITED STATES of America, Appellee, v. Fernandoefendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1060

115 F.3d 1060

UNITED STATES of America, Appellee, v. Fernando MONTILLA-RIVERA, Defendant, Appellant.

No. 96-1773.

United States Court of Appeals, First Circuit.

Heard April 9, 1997.

Decided June 19, 1997.

Peter Diaz-Santiago, Bayamon, PR, for appellant.

Jose A. Quiles-Espinosa, Senior Litigation Counsel, San Juan, PR, with whom Guillermo Gil, United States Attorney and Antonio R. Bazan, Assistant United States Attorney, Hato Rey, PR, were on brief, for appellee.

Before BOUDIN, Circuit Judge, ALDRICH, Senior Circuit Judge, and LYNCH, Circuit Judge.

LYNCH, Circuit Judge.

Three men have gone to prison as a result of the distribution of two kilograms of cocaine within one thousand feet of a school in Carolina, Puerto Rico. Two of the men are guilty, having pled so. The third, Fernando Montilla-Rivera ("Montilla"), asserts that he is innocent. He trusted his fate to a jury, and he was convicted of aiding and abetting the crime, in violation of 21 U.S.C § § 841(a)(1) and 860(a), and 18 U.S.C. § 2. On appeal, Montilla argues that the government's evidence showed no more than that he was present during the sale, and that this "mere presence" is insufficient to support the verdict. He also argues that the trial judge erred in denying him a new trial when, a year after his conviction, Montilla presented affidavits from the other two men, each swearing that Montilla was innocent.

I.

We recite the facts as the jury could have reasonably found them. United States v. Andrade, 94 F.3d 9, 10 (1st Cir.1996). On March 22, 1995, Eladio Valerio, a Drug Enforcement Agency confidential informant, made a phone call in search of drugs. He called Miguel Caldern-Salmiento ("Caldern"), who would later become a codefendant in this case. In a taped conversation, which was clearly about arranging a drug purchase, Caldern told the informant, "Come on down here to ... to go over to the mechanic at 12." The informant explained that he could not "come on down" that day because the funds were not ready. There were several other taped conversations about the deal. At that time, the mechanic working at the mechanic's shop to which Caldern referred was Montilla.

A few days later, on March 24, 1995, the informant, wired and accompanied by DEA Agent Domingo Carrasquillo, did meet with Caldern. The informant and Caldern initially met at a service station, where Caldern invited the informant to go "see the mechanic." The informant understood that "by seeing the mechanic," Caldern meant they would go "where the material or the drug was." Agent Carrasquillo went ahead to a shopping center where he expected the drug transaction to take place.

Caldern drove the informant to an auto repair shop, behind the Metreza night club in San Antn, which was within one thousand feet of a public school. The shop was a wooden structure attached at one end to the club and open at the other. There was a small room inside the shop; the repair work took place outside of this room.

At the shop, the informant saw Ramn Zorrilla, who also later became a codefendant in this case, and Montilla. The informant shook hands with them, but did not speak to Montilla. Montilla wore overalls and had grease on his clothes; Zorrilla did not. The four men then went into the small room.

Once inside, the dealing began in earnest between the informant, Caldern, and Zorrilla. During these negotiations, Montilla was ten to twelve feet away, just inside the entrance to the room, "watching [and] looking." The informant and the other two negotiated and agreed on a price of $12,100 per kilogram of cocaine. As Montilla stood at the entrance, still watching, the three other men agreed that if the quality of the initial two kilograms was high, four more would be purchased. At that point, Zorrilla made a call from the room to have the cocaine delivered to the shop, requesting "two shoes." The informant called his "partner," in reality DEA Agent Carrasquillo, to arrange for the exchange of the cocaine for cash. While they waited for the delivery, and with Montilla still at the entrance, Caldern loudly commented on the quality of the cocaine: "[H]ell, pure cocaine." ("Diablo, cocana pura.")

The drugs were delivered to the shop. As Montilla watched, the informant tasted the cocaine and pronounced that it was good and that the "deal was on." The informant went off with Caldern to the shopping center to meet the informant's partner, who had the money. Montilla and Zorrilla stayed behind with the cocaine at the shop.

At the shopping center, the partner showed Caldern the cash. The men agreed that Caldern would return alone to the repair shop, and that ten minutes later, the informant and his partner would bring the money for the exchange. Back at the shop, the "partner" agent told the informant to get out of the car, go into the mechanic's shop, and bring out the people involved in the transaction. The informant went into the small room, told Montilla, Zorrilla, and Caldern that "someone was waiting for them in the car, [and] for them to take the material and give them the money." Zorrilla and the informant approached the car and asked the partner to come into the shop, where they would make the exchange. The partner refused and said the delivery should be made outside. Zorrilla complied and went back into the shop to get the drugs. The three men--Caldern, Zorrilla, and Montilla--came back toward the street, with Caldern carrying the drugs. Montilla and Zorrilla had moved to where they could watch the transaction from the front of the shop, about thirty feet away from the partner's car.

All three men were arrested where they stood when Caldern made the delivery. At the time of arrest, others were in the shop, including the shop owner and a visitor. At no time during the transaction did the informant see Montilla working on a car.

As the government conceded, its videotape of the drug delivery and arrest did not show Montilla; nor do any of the audiotapes of the transactions contain recordings of Montilla's voice. In fact, the government at trial described Montilla as a minor participant, but a knowing participant nonetheless, who had acted as a lookout.

Montilla's defense was mistaken identity, that Zorrilla was the "mechanic" referred to in the initial conversation. Zorrilla was a mechanic and had worked at this shop some four months earlier. Caldern was not a mechanic.

Montilla did not testify at trial. His first witness, the shop owner, testified that Montilla had worked for him there for about a month, that Zorrilla, not Montilla, lived in the room at the shop, and that Montilla had just been doing his job, repairing a car that was to be picked up that day. The owner also said that Zorrilla had worked for him at the shop for over a year, but had not worked there during the previous four months. The owner explained that just before Montilla went outside to the front of the shop where he was arrested, Montilla had said that he was stepping outside to have a soft drink and to smoke. Montilla's second witness, who was visiting the shop during the incident, testified that he had seen Montilla working on a car until he stepped outside to have a cigarette since the owner did not allow smoking inside the shop. The jury convicted Montilla, and he was sentenced to five years in prison and eight years of supervised release.

Montilla originally planned to call both Zorrilla and Caldern as witnesses. The two entered guilty pleas on June 27, 1995. On June 29, 1995, Montilla filed a motion to have the Marshal's Service produce his codefendants to testify. The court granted the motion, but the two codefendants informed the court, on advice of and through their counsel, that they would not testify for Montilla. Montilla was convicted on July 1, 1995. Caldern and Zorrilla were not sentenced until September 26, 1995.

On July 17, 1996, Montilla filed a motion for a new trial under Fed.R.Crim.P. 33. The motion attached nearly identical affidavits from Zorrilla and Caldern. Zorrilla's affidavit said in relevant part:

I never knew Mr. Fernando Montilla as qa [sic] drug dealer nor that he was or has been involved in drugs [sic] dealing but as a good har [sic] worker as a mechanic.

I state that Mr. Fernando Montilla was not involve [sic] in the drugs [sic] transaction occurred on the date of my arrest and for which I pled guilty.

Caldern's affidavit stated in part:

At no time, I have [sic] been aware that Mr. Fernando Montilla has been involved in any illegal activity like the one for which he was convicted, possession with intent to distribute cocaine. In other words, Mr. Fernando Montilla was not involve [sic] in the offense for which I pled guilty.

At all time [sic] I knew Mr. Fernando Montilla as a hard mechanic worker and anything [sic] else.

Citing United States v. Tibolt, 72 F.3d 965 (1st Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 2554, 135 L.Ed.2d 1073 (1996), the district court denied the new trial motion on the grounds that the witnesses were known and available at the time of trial. Thus, in the court's view, Montilla did not meet the requirements of Fed.R.Crim.P. 33.

II. Sufficiency of the Evidence

In our sufficiency of the evidence review, we determine whether, drawing all reasonable inferences in the government's favor, a rational jury could find guilt beyond a reasonable doubt. Andrade, 94 F.3d at 12.

Montilla argues that the jury was faced with two equally likely scenarios, one of which was that he was innocent. He asserts that under United States v. Andujar, 49 F.3d 16 (1st Cir.1995), this is insufficient to meet the government's burden of proof of guilt beyond a reasonable doubt. Montilla's statement of the law is correct. Id. at 22 ("When a jury is confronted ... with equally persuasive theories of guilt and innocence, it cannot rationally find guilt beyond a reasonable doubt."). However, Montilla understates the case against him.

The guilt of Zorrilla and...