U.S. v. Nelson-Rodriguez
| Decision Date | 07 February 2003 |
| Docket Number | No. 00-1422.,No. 00-1560.,No. 01-1873.,No. 00-1628.,No. 00-1561.,No. 00-1457.,No. 00-1534.,No. 01-2248.,No. 01-1150.,00-1422.,00-1457.,00-1534.,00-1560.,00-1561.,00-1628.,01-1150.,01-1873.,01-2248. |
| Citation | 319 F.3d 12 |
| Parties | UNITED STATES, Appellee, v. Milton A. NELSON-RODRIGUEZ; Luis A. Romero-López; Miguel A. Rodriguez-Rivera; Eduardo Arroyo-Maldonado; Carlos Bonet-Gonzalez; Angel Chevere-Gonzalez; Luis Caribe-Garcia; Raúl Rivera-Pérez; Victor M. Valle-Lasalle, Defendants, Appellants. |
| Court | U.S. Court of Appeals — First Circuit |
Marlene Aponte Cabrera for appellant Nelson-Rodriguez.
Rafael F. Castro Lang for appellant Romero-López.
Jose A. Suarez-Santa for appellant Rodriguez-Rivera.
Raymond L. Sanchez Maceira for appellant Arroyo-Maldonado.
Mauricio Hernandez Arroyo for appellant Bonet-Gonzalez.
Raymond Rivera Esteves for appellant Chevere-Gonzalez.
Marlene Gerdts for appellant Caribe-Garcia.
Linda George for appellant Rivera-Pérez.
Luz M. Rios Rosario for appellant Valle-Lasalle.
William C. Brown, Attorney, U.S. Department of Justice, with whom H.S. Garcia, United States Attorney, was on brief for appellee.
Before BOUDIN, Chief Judge, LYNCH, Circuit Judge, and SHADUR,* Senior District Judge.
Thirteen individuals were indicted on February 5, 1998 for participating in a conspiracy to possess with intent to distribute 1,000 kilograms of cocaine, five kilograms of heroin, and 5,000 pounds of marijuana, in violation of 21 U.S.C. § 846 (2000). This case involves the appeals of nine of those defendants: Milton Nelson-Rodriguez ("Nelson"), Luis Romero-López ("Romero"), Miguel Rodriguez-Rivera ("Rodriguez"), Eduardo Arroyo-Maldonado ("Arroyo"), Carlos Bonet-Gonzalez ("Bonet"), Angel Chevere-Gonzalez ("Chevere"), Luis Caribe-Garcia ("Caribe"), Raúl Rivera-Pérez ("Rivera"), and Victor Valle-Lasalle ("Valle"). Six of the defendants — Nelson, Rodriguez, Arroyo, Bonet, Chevere and Caribe — were convicted at a trial in September 1999.1 Rivera and Valle were convicted at a second trial in September 2000. Romero pled guilty before trial.
This case raises a large number of issues; the more important ones include:
(1) whether the authorization for a wiretap was invalid when the government withheld certain information going to the trustworthiness of a relied-upon confidential informant in the affidavit used to apply for a wiretap order;
(2) whether a jury determination as to drug quantity and type for the entire underlying conspiracy is adequate for Apprendi purposes, and when an Apprendi claim must be raised to be preserved;
(3) the meaning of "special skill" in U.S.S.G. § 3B1.3, which authorizes a two-level increase in sentence if the defendant "used a special skill, in a manner that significantly facilitated the commission or concealment of the offense";
(4) a claim that the government failed to move for a substantial assistance reduction of sentence under U.S.S.G. § 5K1.1 as retaliation against a cooperating defendant for telling the truth;
(5) the existence of constraints, if any, on the ability of a district judge to impose a term of supervised release in cases under §§ 841 and 846 that is in excess of the term contemplated by U.S.S.G. § 5D1.2;
(6) a claim of deprivation of a right to speedy trial arising out of a 14-month period between conviction and sentencing;
(7) a claim of improper ex parte contact between a probation officer and the prosecution after the initial presentence report but before the filing of an amended report which supported a new sentence enhancement;
(8) on the review of a denial for a motion for new trial, a claim that defense counsel had a potential conflict of interest because he simultaneously represented another conspirator, who was previously acquitted but then had pled guilty, in sentencing issues resulting from a plea agreement.
Save for one aspect of a claim by Rodriguez concerning his term of supervised release, we reject all of the claims raised by defendants. The length of the opinion is mandated by the fact that it is the equivalent of nine opinions as to the nine defendants.
With challenges to the sufficiency of the evidence, we recite the facts in the light most favorable to the jury's guilty verdicts. See United States v. Bayes, 210 F.3d 64, 65-66 (1st Cir.2000). As to other issues, we objectively view the evidence of record. See United States v. Piper, 298 F.3d 47, 50 (1st Cir.2002).
An FBI investigation of the conspiracy, led by FBI Special Agent Michael Plichta, began when Jorge Hernandez-Miller ("Hernandez") agreed to infiltrate a drug trafficking organization run by Rivera and serve as a confidential informant ("CI"). Hernandez had been convicted in a 1993 drug importation case known as the "Al Capone" case and served 36 months in jail, a reduced sentence because he had cooperated with the government in that case as well. In 1997, two years after Hernandez was released from prison, he told the FBI that he wanted to help apprehend individuals from the Al Capone case who were still at large. Hernandez said he wanted to cooperate with the government because he feared for the safety of himself and his family; some of the Al Capone individuals still at large, he claimed, broke into his house while he was in prison. Under his agreement with the FBI, Hernandez was to receive twenty-five percent of the forfeitures made as a result of his cooperation. By September 7, 1999, he had received $21,000.
In the course of their interactions, Hernandez heard Rivera mention names of coconspirators, including Caribe and Bonet, who knew that Hernandez had cooperated with the government in the Al Capone case. Hernandez, fearing that these conspirators could have exposed him as an informant, introduced another CI, Jose Diaz, as his employee. He hoped to have Diaz attend any meetings where the people in attendance might recognize Hernandez from his time as a drug trafficker.
Hernandez and Diaz were the government's main witnesses at both of the trials. A third principal government witness, Luis Torres Orosco ("Torres"), was a charged defendant who pled guilty and testified about his involvement in the conspiracy. The government also played numerous audiotapes of conversations in which the defendants discussed their drug trafficking activity. The FBI investigators had obtained tapes both from consensual recordings made by the CIS and from a wiretap on a cellular phone that Hernandez sold to Rivera.
The defendants were part of a drug operation led by Rivera that imported drugs from Colombia to sell in Puerto Rico and New York. According to the indictment, the conspiracy began "no later than in or about April 1997" and continued until November 1997, when arrests in the case began. The evidence at the two trials showed, inter alia, four planned importations of cocaine from Colombia (only one of which was successful), one planned importation of heroin from St. Maarten, and one planned importation of more than 4,000 pounds of marijuana.
Each defendant had a different role in the conspiracy. Rivera was the leader and Arroyo was his lieutenant. They arranged for the boat, navigational charts, and radios necessary to import the drugs. When Arroyo became too greedy, Rivera replaced him with Valle.
Bonet was to captain Rivera's receiving boat, which would take the drugs to Puerto Rico in at least one of the early shipments. On the fourth planned importation, Ortiz was to serve in this role. Torres was the coordinator of certain drug shipments. Caribe oversaw security at the drop-off point on shore and, through his brother-in-law, Mark Figueroa-Jarvis ("Figueroa"), helped arrange for the distribution of the drugs in New York. Nelson was involved in distribution of the imported drugs, and was also captured on audiotape discussing with Rivera plans to import between 6,000 and 10,000 pounds of marijuana. Rodriguez took the cocaine from Puerto Rico to New York, where he sold it to Figueroa.
CI Hernandez, meanwhile, worked with the Colombians to get the drugs to Puerto Rico, and also traveled to St. Maarten on Rivera's behalf to negotiate the heroin importation. CI Diaz participated in various activities of the conspiracy, including trips to Colombia and St. Maarten. Hernandez also introduced an undercover agent of the U.S. Customs Service, Agent Victor Rosa, as the captain of a boat that was to bring cocaine from Colombia to a rendezvous with Rivera's boat.
CI Hernandez testified about a planned importation of 1,100 kilograms of cocaine in early 1997. Hernandez had connections in Colombia through Humberto Arduandua, a Colombian drug trafficker with whom Hernandez had been imprisoned. Arduandua put Hernandez in contact with Rivera in the spring of 1997; he told Rivera that Hernandez could be an intermediary between the Colombian drug suppliers and Rivera's drug distribution organization to facilitate cocaine importation. As an intermediary, Hernandez was responsible for examining the boats and equipment used to transport the drugs from Colombia and the delivery site for the drugs in Puerto Rico.
Hernandez called Rivera on April 25, 1997, and the two set up a meeting later that night. This call, like many between the CIS and members of Rivera's organization, was recorded by the FBI. Hernandez met Rivera and Arroyo, whom Rivera introduced as one of his employees, at the Condado Hotel, and they began negotiating a contract to import 1,100 kilograms of cocaine from Colombia. Hernandez and Rivera agreed to the basic details of the transaction: Hernandez would arrange for the drugs to be transported from Colombia to a location...
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