U.S. v. Paret-Ruiz

• Citation: 567 F.3d 1
• Decision Date: 19 May 2009
• Docket Number: No. 06-2709.,06-2709.
• Parties: UNITED STATES of America, Appellee, v. Jorge A. PARET-RUIZ, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

567 F.3d 1

UNITED STATES of America, Appellee, v. Jorge A. PARET-RUIZ, Defendant, Appellant.

No. 06-2709.

United States Court of Appeals, First Circuit.

Heard October 29, 2008.

Decided May 19, 2009.

Víctor González-Bothwell, Assistant Federal Public Defender, with whom Joseph C. Laws, Jr., Federal Public Defender, was on brief, for appellant.

Mariana E. Bauzá, Assistant United States Attorney, with whom Rosa E. Rodríguez-Vélez, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, were on brief, for appellee.

Before TORRUELLA and LIPEZ, Circuit Judges, and DiCLERICO,^* District Judge.

DICLERICO, District Judge.

Following a five-day trial, appellant Jorge Alberto Paret-Ruiz ("Paret-Ruiz") was found guilty of conspiracy to import with intent to distribute, and to possess with intent to distribute, five or more kilograms of cocaine. He argues that the evidence was insufficient to sustain his convictions, that the district court erred in denying his request for a new trial based on his proffer of newly discovered evidence and his claim that the government suppressed exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and that the government made an improper argument at trial by suggesting that the jury could find him guilty based solely on an agreement with a government agent. Because we conclude that the evidence admitted at trial was insufficient to support Paret-Ruiz's conviction, we reverse the verdict and remand with instructions to enter a verdict of not guilty. The other issues Paret-Ruiz raises need not be addressed.

I.

A. Background Facts

The government presented its case through the testimony of Agent Jesus González ("Agent González"), a special agent with the Drug Enforcement Administration ("DEA"). The government also played for the jury numerous audio recordings of conversations between Agent González and Paret-Ruiz, and introduced Spanish and English transcripts ("audio transcripts") of the audio recordings into evidence. Because Paret-Ruiz asks us to review the sufficiency of the evidence, it is his burden on appeal to provide the relevant portions of the record. See Fed. R.App. P. 10(a); Local Rule 11(a); Muniz Ramirez v. Puerto Rico Fire Services, 757 F.2d 1357, 1358 (1st Cir.1985) ("[I]t is the appellant's responsibility to ensure that the record is complete, i.e., that it contains all papers necessary for the determination of the issues presented by the appeal."). In his brief, Paret-Ruiz relies upon Agent González's testimony as well as a portion of those audio transcripts which he claims are relevant. The record contains the trial transcripts, which include Agent González's testimony, and the portions of the audio transcripts on which Paret-Ruiz relies. The government, in its brief, relies entirely on Agent González's testimony, which includes references to the audio recordings. We review Paret-Ruiz's arguments on appeal based upon the record as presented to us by the parties. Cf. United States v. Morales-Madera, 352 F.3d 1, 11-12 (1st Cir.2003) (finding record sufficient for appellate review despite absence of one wiretap tape which government did not rely upon to prove its case and which government witness summarized in his testimony).

We recite the facts in the light most favorable to the verdict. United States v. DeCologero, 530 F.3d 36, 47 (1st Cir.2008). In 2003, the Federal Bureau of Investigation ("FBI") informed the DEA that one of its confidential informants ("FBI CI") was approached by Paret-Ruiz, who was looking to acquire a boat for the purpose of transporting cocaine from other Caribbean islands into Puerto Rico. The DEA began its investigation of Paret-Ruiz's activities in January of 2004. On January 28, 2004, the FBI CI met with Paret-Ruiz to discuss his request for a boat. Agent González supervised the photographic surveillance of this meeting.

On February 3, 2004, Agent González posed as a drug trafficker and met with the FBI CI and Paret-Ruiz aboard a boat owned by the DEA that is used to conduct undercover drug transactions. Agent González gave Paret-Ruiz a tour of the boat, showing him the hidden compartments, which were of particular interest to Paret-Ruiz. Paret-Ruiz initially indicated that he wanted to purchase the boat, but Agent González informed him that this was not possible. Paret-Ruiz then stated that several different acquaintances had cocaine contacts in Antigua and St. Maarten, and that he was interested in using the boat, and Agent González's services, to smuggle cocaine into Puerto Rico and deliver it to these acquaintances. Agent González and Paret-Ruiz also discussed the price of the cocaine and the costs of transporting it. Through subsequent investigation, Agent González discovered that Adalberto Coriano-Aponte ("Coriano") had cocaine contacts in St. Maarten, and that Coriano and Efraín Santana-Ortiz ("Santana"), an acquaintance of Coriano's, were two of the intended recipients for the cocaine.¹

In a phone conversation on February 8, 2004, Paret-Ruiz told Agent González that he had finished a meeting with some individuals and asked if Agent González would show them the boat if necessary. Paret-Ruiz did not identify these individuals, and Agent González never confirmed their identities. Agent González declined to show the undercover boat. In another phone conversation on February 9, 2004, Paret-Ruiz told Agent González that some individuals had two cocaine loads available, for 300 and 500 kilograms each, but that he had not discussed fees with them. Following this conversation, Agent González, the FBI CI, Paret-Ruiz, and another undercover DEA agent met at a restaurant. At this meeting, Paret-Ruiz explained that he met with other unidentified individuals the previous day and they offered him two loads of cocaine, consisting of 200 and 500 kilograms, to be picked up in Antigua, using Agent González's undercover boat, which would be escorted by police or military officials up to 30 miles out to sea.

On February 10, 2004, Paret-Ruiz told Agent González that he was going to meet with unidentified individuals to discuss their February 9 meeting. At a February 13, 2004, meeting, Paret-Ruiz again told Agent González of the other cocaine loads, consisting of 300 and 500 kilograms, that were still available in Antigua. Agent González stated that he would like a fee of twelve to fifteen percent, depending upon the size of the cocaine load. Paret-Ruiz told Agent González that he would negotiate for twenty percent, so that he could make some money. They also discussed the possibility that the owner of the drugs might accompany Agent González on his boat from Antigua to Puerto Rico and instructions for loading the cocaine from the boat into a vehicle for delivery in Puerto Rico.

During a meeting on February 24, 2004, Paret-Ruiz told Agent González that he was going to meet with some unidentified individuals in a few days to continue negotiations regarding the cocaine loads from Antigua. At a February 25 meeting, Paret-Ruiz told Agent González that one of the cocaine loads he had been working on was no longer available because it had been picked up by someone else, but that other loads were still available. Agent González testified that he was unsure which loads Paret-Ruiz was referring to in this conversation. Paret-Ruiz then accepted $2,000 from Agent González to travel to Antigua to confirm that there was cocaine available for transport to Puerto Rico. However, Paret-Ruiz never went to Antigua and did not repay the money. Later that same day, Paret-Ruiz met with some unidentified individuals to continue discussions.

On March 2, 2004, Paret-Ruiz told Agent González that he met with two individuals about transporting cocaine using Agent González's boat, but they were not interested because they wanted to buy, not rent, a boat to transport the drugs. Paret-Ruiz also said that he was currently in discussions with another unnamed individual. Agent González later discovered that the individual was Santana. Agent González and Paret-Ruiz met again on March 16, 2004. During the meeting, Paret-Ruiz made a phone call to someone, later identified as Santana, and asked him to tell an unnamed individual, later identified as Coriano, that he was meeting with the owners of the boat, and to ask whether Coriano was still interested in the drug transaction. Paret-Ruiz concluded the call, and Santana called back some time later. After finishing his conversation with Santana, Paret-Ruiz informed Agent González that Santana and Coriano were still interested in obtaining transportation for cocaine loads but that they could not agree on the fee he and Agent González would take for transporting the cocaine. Paret-Ruiz demanded a fee of twenty percent and Santana would only offer sixteen percent, which Paret-Ruiz would not accept. Paret-Ruiz stated, however, that he would meet with Santana later that day. When Agent González asked to be included in this meeting, Paret-Ruiz declined because he was afraid of being excluded from a transaction.

On March 17, 2004, Paret-Ruiz told Agent González in a phone conversation that Santana and Coriano were still interested in working with them. On March 18, Paret-Ruiz and Agent González met to discuss Paret-Ruiz's meeting with Santana on March 16. Paret-Ruiz told Agent González that other unidentified individuals were arrested and that his negotiations with them regarding drug loads had therefore terminated. Paret-Ruiz stated his concern about the arrests and suggested that they should delay their drug transaction for awhile but that they would resume negotiations later. The drug transaction never occurred.

In August of 2004, Agent González, as an undercover agent, met with Coriano, the FBI CI, and another individual to discuss the shipment of cocaine from St. Maarten into Puerto Rico. Coriano had approached the FBI CI looking for transportation for...