U.S. v. Morillo

• Citation: 158 F.3d 18
• Decision Date: 01 June 1998
• Docket Number: No. 97-2099,97-2099
• Parties: UNITED STATES, Appellee, v. Fidel A. MORILLO, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 18

158 F.3d 18

UNITED STATES, Appellee, v. Fidel A. MORILLO, Defendant, Appellant.

No. 97-2099.

United States Court of Appeals First Circuit.

Heard June 1, 1998.

Decided Oct. 13, 1998.

Edgardo Rodrguez-Quilichini, Assistant Federal Public Defender, with whom Joseph C. Laws, Jr., Federal Public Defender, was on brief, for appellant.

Desiree Laborde-Sanfiorenzo, Assistant United States Attorney, with whom Guillermo Gil, United States Attorney, Jose A. QuilesEspinosa, Senior Litigation Counsel, and Camille Velez-Rive, Assistant United States Attorney, were on brief, for appellee.

Before BOUDIN, Circuit Judge, SCHWARZER, ^* Senior District Judge, and SARIS, ^** District Judge.

SARIS, District Judge.

Appellant Fidel Morillo was arrested along with five others in connection with the seizure of three kilos of cocaine from drug couriers in the San Juan, Puerto Rico airport. At trial, the government contended that Morillo's role in the conspiracy was to allow his alleged co-conspirators to use his apartment as the operational center of the drug conspiracy. A jury convicted Morillo of conspiracy in violation of 21 U.S.C. § 846 but found him not guilty of possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841 and 18 U.S.C. § 2. His sole argument on appeal is that the evidence against him was insufficient to support a conviction and that, therefore, the trial judge should have allowed his motion for acquittal. After a careful review of the record, we now reverse, although we agree with the trial judge that this is a close case.

I. FACTUAL BACKGROUND

We summarize the relevant facts, "interpreting the record in the light most helpful to the government." United States v. Ortiz, 966 F.2d 707, 710 (1st Cir.1992).

In April 1996, Fidel Morillo leased an apartment located at HY-1, 252 Street, in the "Country Club" neighborhood of Carolina, Puerto Rico ("HY-1"). It is near the San Juan airport. Morillo had been experiencing marital difficulties and moved into HY-1 with his mistress, Felicia Santos. At the inception of the lease, Morillo was given the only key to the apartment. The small apartment, furnished by Morillo, had a living room, a kitchen and a bedroom, which was separated from the living room by a door. Morillo, who worked as an installer at a water heater supply company, stopped spending the night at the apartment in mid-August 1996, when he moved back to his wife's house. However, he made rent payments on HY-1 through October 1996. ¹ Santos continued to live in the apartment until early to mid-September 1996, when she went to New York for about fifteen days. During that period, landlord Ysidro Fernandez, ² who lived in an attached house, only saw Morillo's truck at the apartment once or twice. Santos returned briefly on October 2, only long enough to tell the landlord that she was leaving permanently to return to her native Santo Domingo, Dominican Republic.

Also on October 2, co-conspirators Fiordaliza Duran and Rosa Peguero flew from John F. Kennedy Airport in New York to San Juan for the purpose of transporting cocaine from Puerto Rico back to New York. Two brothers, co-conspirators Eddison and Hanzel Nnez, picked the women up at the San Juan airport early that evening and brought them to HY-1. Hanzel Nnez let the women into the apartment with a key. No one was in the apartment when Duran and Peguero were dropped off there, without their luggage, and they slept together in the single unoccupied bedroom.

At approximately 9:00 or 9:30 the next morning, October 3, Morillo knocked on the apartment door of HY-1. Peguero, who had met Morillo in September 1996 when she previously stayed in the apartment, ³ opened the door and let Morillo in. Morillo changed into some clothes that were kept in the bedroom closet. Duran, who had never met Morillo, was wearing a man's shirt that she had obtained from the bedroom closet, and she told him she did not know "to whom it belongs." Morillo told Duran it was his shirt but that she could keep it because it did not fit him anymore. Morillo used the telephone in the living room briefly and then, at Peguero's request, took her to a nearby bodega for cigarettes in a large red van. After taking Peguero back to HY-1, Morillo left the apartment. There is no evidence that there were drugs or paraphernalia in plain view anywhere in the apartment during Morillo's October 3 visit. Also, there is no evidence that Morillo spoke with Peguero or Duran, both of whom testified at trial, about the purpose of their sojourn.

Morillo did not return to HY-1 or have any other contact with the two women or the Nnez brothers on October 3. The brothers stopped by HY-1 after Morillo's visit and were in and out throughout the day along with an unidentified man. At some point, they brought to HY-1 another woman, co-conspirator Altagracia Domnguez, who was a cousin of Morillo's mistress, Santos. Like Peguero, Domnguez had been at the apartment during her September visit to Puerto Rico. During the day, the Nnez brothers assisted the couriers with arrangements to return to New York, including visits to several travel agents. The brothers took the women to a shopping mall and met them later that evening for dinner. Morillo did not participate in any of these activities. Domnguez slept in HY-1 with Duran and Peguero on the night of October 3. The men slept elsewhere.

Between 9:00 and 10:00 a.m. on October 4, the Nnez brothers and the other man returned to HY-1 with luggage and a black bag containing the drugs. The three men went into the bedroom, took out three kilogram bags of cocaine, and prepared them for transportation to New York with transparent paper, tape and Vaseline. At least one of the men and Domnguez secured the packages of cocaine to the thighs of Duran and Peguero. Domnguez was scheduled to return to New York with more drugs later that afternoon. The drug paraphernalia, cellophane wraps, tape and a calling card covered with white powder residue were scattered in plain view throughout the bedroom on the bed and the bureau as the women prepared to leave the apartment.

At about 10:00 or 10:30 a.m. on October 4, Morillo went to the house physically attached to HY-1 to see Fernandez, the landlord and Morillo's trusted co-worker and friend. Morillo asked Fernandez if he could borrow Fernandez' car, a late-model green Hyundai, to go to their workplace because his vehicle was in the shop. Morillo left the building in the Hyundai for approximately half an hour and returned the car at about 11:00 a.m. While he was gone, Fernandez walked through an unlocked door into the living room of HY-1, as was his custom, to get something from the refrigerator. He saw one "fat" man, whom he did not recognize, sleeping on the living room couch. When Morillo returned in the Hyundai, he gave the car keys back to Fernandez.

Sometime around 11:00 a.m., after the drugs were attached to the couriers and just as Eddison Nnez was preparing to take the two women to the airport, Morillo stopped by HY-1 itself for the first time since his brief visit the previous day. As Morillo walked into the living room, he said in Spanish, "Oh, las muchachas se van ya?" or "Are the girls leaving now?" Immediately thereafter, Eddison Nnez, Duran and Peguero left the apartment in a green Mitsubishi Mirage. When they left for the airport, the door to the bedroom was open. Morillo remained in the apartment with Hanzel Nnez, Domnguez and the other man. He was not present when the drugs were prepared, packaged, and put on the "mules." Only five to eight minutes after he had returned with the Hyundai, Morillo went back to the attached house to ask Fernandez for a ride in the Hyundai to pick up Morillo's red pickup truck at the shop, where he and his wife had left it earlier that day. Fernandez said he could not go with Morillo, but he let him re-borrow the Hyundai. Meanwhile, at approximately 11:10 a.m., federal agents began following the Mitsubishi a short distance from the apartment at another house, where Eddison Nnez had stopped to pick up a plane ticket. They went directly to the San Juan airport from the house. At approximately 11:20 a.m., Duran and Peguero got out of the car at the airport, and Eddison Nnez drove away. Duran and Peguero were stopped and then questioned, searched and arrested in the airport's DEA office. A total of three kilos of cocaine was seized from the two women, along with two plane tickets from San Juan to Kennedy Airport. Agents followed the Mitsubishi after it left the airport, but they stopped following it or lost the car between noon and 12:20 p.m.

At around 12:30 p.m., agents spotted the Mitsubishi near the point where they had lost contact with it. The car was stopped in front of a travel agency about 1000 meters from HY-1, and the agents saw Domnguez get into the car. They stopped the Mitsubishi after it drove away and placed Hanzel Nnez and Domnguez, the only occupants of the car, under arrest. During the stop and arrest, agents recognized Eddison Nnez riding by the scene in the passenger seat of Fernandez' Hyundai. The agents put on their car's siren and signaled the Hyundai to pull over. Then Eddison Nnez looked behind him and, seeing the police officer in the middle of the street aiming a pistol at the Hyundai from a range of ten feet, motioned to the car's driver, Morillo, to continue driving. Morillo slowed the car but drove approximately fifty meters before he stopped. Both Morillo and Eddison Nnez were arrested on the scene.

Tracing the Hyundai back to HY-1, the police arrived at the apartment around 3:00 p.m. and found both the front and back doors open. They searched Fernandez' house with his consent and, pursuant to a search warrant, searched the apartment on the evening of October 4 after 10:00 p.m. They seized Morillo's work beeper and his personal telephone book from the living room. There were also two phone bills, one under Santos' name dated August...