U.S. v. Pinillos-Prieto
| Decision Date | 17 August 2005 |
| Docket Number | No. 03-1628.,No. 03-1566.,No. 03-1772.,No. 03-1627.,03-1566.,03-1627.,03-1628.,03-1772. |
| Parties | UNITED STATES of America, Appellee, v. Jaime PINILLOS-PRIETO, Defendant, Appellant. United States of America, Appellee, v. Rodrigo Campusano, Defendant, Appellant. United States of America, Appellee, Cross Appellant, v. Nolgie Rodriguez-Zamot, Defendant, Appellant, Cross Appellee. |
| Court | U.S. Court of Appeals — First Circuit |
Jean Philip Gauthier for Jaime Pinillos-Prieto.
Stephen J. Golembe for Rodrigo Campusano.
Ira N. Loewy, with whom Michael A. Pizzi, Jr. and Bierman, Shohat, Loewy & Pizzi, P.A. were on brief, for Nolgie Rodriguez-Zamot.
Nelson Pérez-Sosa, Assistant U.S. Attorney, with whom Rebecca Kellog-De Jesús, Assistant U.S. Attorney, and H.S. Garcia, U.S. Attorney, were on brief, for the United States.
Before SELYA, LYNCH, and LIPEZ, Circuit Judges.
These appeals stem from a multi-defendant drug conspiracy trial involving a "reverse sting" operation. Appellants were convicted of conspiring and attempting to possess, with intent to distribute, five or more kilograms of cocaine. They challenge the sufficiency of the evidence supporting their convictions, the admission of certain testimony by an undercover agent, and the jury instructions. We affirm the convictions.
The government cross-appeals from the district court's denial of a mandatory life sentence for Rodriguez under 21 U.S.C. § 841(b)(1)(A). However, we need not decide the correctness of that decision. In light of United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and without opposition from the government, we vacate all of the defendants' sentences and remand for re-sentencing under advisory sentencing guidelines.
We recite the facts in the light most favorable to the verdict. United States v. Rodriguez-Marrero, 390 F.3d 1, 6 (1st Cir.2004), cert. denied, ___ U.S. ___, 125 S.Ct. 1620, 161 L.Ed.2d 292 (2005). Nelson "Rafa" Rodríguez, an experienced government informant of Colombian origin, first met defendant-appellant Jaime Pinillos-Prieto ("Pinillos") in Colombia in early 2001. In this meeting, Rafa1 represented himself as a drug trafficker. Pinillos, in turn, represented himself as a facilitator of sorts who had access to potential cocaine buyers in the United States and the ability to launder drug money by using it to buy computers, which could then be imported legally into Colombia and sold.
In July 2001, Pinillos telephoned Rafa (who was in Puerto Rico at the time) from Miami and said that he had a customer to buy 100 kilograms (kilos) of cocaine. Rafa asked Pinillos if the customer had the money — approximately $1.4 million, since the going rate was about $13,500 per kilo. Pinillos confirmed that the buyer had the money. During this telephone call, as in other communications, Rafa and Pinillos did not use the terms "cocaine" or "kilos," but rather the terms "laptops" and "computers," which, Rafa later testified, were code words designed to obscure their conversation in case law enforcement officers overheard them.
Rafa contacted his case agent at the Drug Enforcement Administration, who authorized him to proceed with a "reverse sting" operation. In a classic sting, government agents attempt to buy drugs from persons suspected of being drug sellers. In a reverse sting, government agents offer to sell drugs to persons suspected of being drug buyers.
In this reverse sting, Rafa would be part of a three-person team of "sellers," and would serve as the negotiator and principal liaison to the buyers. Nataya "Princesa" Posada, a Colombian national and occasional government informant, would pose as the owner of the drugs. Special Agent Anthony Toro-Zambrana ("Toro") of the Special Investigations Bureau of the Puerto Rico Department of Justice, an undercover narcotics agent, would pose as Princesa's bodyguard and, as a Puerto Rican, one who was familiar with Puerto Rico and could arrange certain logistics.
Rafa and Pinillos arranged to meet on July 9, 2001 in the España Bakery in Isla Verde, Puerto Rico to finalize a sale of 100 kilos at the market rate. At the appointed time, Rafa, Princesa, and Toro arrived at the bakery. Pinillos was already there, and joined them after they entered. The subsequent conversation was videotaped from outside the bakery, but no sound was recorded.
After initial introductions, Pinillos assured the sellers that he had $700,000 ready for the purchase.2 However, he stated that his friends wanted first to buy one kilo and test its quality before committing to a larger purchase. Rafa and Princesa refused, saying they were there for a multi-kilo deal. Princesa pointed out that cocaine was traded wholesale in 25-kilo packages, and she would not open up a package just to extract one kilo. Rafa further noted that Pinillos's proposal was not in the buyers' interests, since the sellers could easily provide a high-quality test kilo and then sell them 99 low-quality kilos. Rafa suggested instead that the buyers purchase an entire 25-kilo package, and the buyers could test one kilo from that package while remaining assured that the other 24 kilos were of equal quality.
Pinillos then went to another table and conferred with two other men whom the "sellers" had not met, defendants-appellants Nolgie Rodriguez-Zamot ("Rodriguez") and Rodrigo Campusano. Pinillos shortly returned and related that his friends had rejected the 25-kilo proposal because that type of deal was how undercover police agents did business. Rafa and Princesa then suggested that, instead of communicating through Pinillos as an intermediary, they should talk directly to the buyers themselves.
Pinillos led Rafa, Princesa, and Toro to meet Rodriguez and Campusano, who were sitting at a nearby table, and introduced the group. Rodriguez was the owner of the money and therefore the principal on the buyers' side. Campusano was identified as the liaison between Rodriguez and Pinillos. The group then resumed negotiations. Rodriguez insisted that he wanted to buy just one kilo, and proceed from there if he was satisfied with the quality. Princesa (who, as leader of the "sellers," was Rodriguez's counterpart) refused and made a counteroffer, which the buyers rejected.
Rodriguez and Campusano then abruptly left the bakery. Pinillos and Rafa followed them outside; Toro and Princesa remained behind. Rodriguez explained that he disliked doing business with women, and the way that Princesa wanted to arrange the deal was characteristic of a police sting. Outside the bakery, negotiations continued for another 15 or 20 minutes. Rodriguez was interested in making the purchase, but the two sides could not agree on various logistical details. The parties agreed to meet later that afternoon to continue talking.
That afternoon, the group met at the parking lot of the Plaza Carolina shopping mall. By established protocol, the leaders (Rodriguez and Princesa) would not attend this or later meetings. Thus, the buyers were represented by Pinillos and Campusano, and the "sellers" by Rafa and Toro. During this meeting, Campusano spoke via mobile phone with Rodriguez, who insisted on receiving the drugs and testing the quality before delivering the money. The buyers continued to argue that the sellers' proposals were how undercover police do business; the "sellers" countered that the buyers' proposals were how thieves do business.
Finally, the group reached an agreement. The transaction would involve two cars. First, Campusano would drive a car containing the money to the handoff site. After Rafa counted the money, the buyers would drive the car offsite. Then Rafa would signal for a car containing the drugs to come to the site. Campusano would drive that car away, leaving Pinillos with the "sellers" as a guarantee, i.e., a hostage. Once the buyers had verified the quantity and quality of the drugs, they would return with the "money" car; the sellers would take the money and Pinillos would be released. Pinillos and Rafa later agreed that this transaction would take place on July 11, 2001 at the parking lot of the Metropol Restaurant.
At the appointed time, Rafa and Toro arrived in the parking lot and waited. Pinillos arrived first and the group waited for Campusano to come with the "money" car. Pinillos appeared somewhat nervous but assured Rafa and Toro that everything was in order — he had seen the money, and the buyers were not planning to rob the "sellers." Rafa sensed that something was not right and asked Pinillos to call Campusano, but Pinillos replied that Campusano would not be available by telephone. Rafa then asked whether the buyers were going to pay for one kilo or 25 kilos. Pinillos did not answer, but appeared anxious. Both Rafa and Toro grew concerned that the transaction was not proceeding as planned and that their lives might be at risk.
Finally, Campusano arrived at the parking lot on foot. Toro decided that this was a bad sign. He called nearby agents, who surrounded the vehicle and arrested Pinillos and Campusano. Rodriguez was later arrested after a brief car chase. No drugs, money, or weapons were ever found on or near any defendant.
On July 24, 2001, a grand jury returned a two-count indictment against Pinillos, Campusano, and Rodriguez. Count I charged that defendants conspired to possess with intent to distribute five or more kilograms of cocaine, in violation of 21 U.S.C. § 846. Count II charged that defendants, aiding and abetting each other, attempted to possess with intent to distribute five or more kilograms of cocaine, in violation of 18 U.S.C. § 2(a) and 21 U.S.C. § 841(a)(1). See also 21 U.S.C. § 841(b)(1)(A)(ii)(II) ().
Defendants were represented separately but tried together. Rafa, Toro, and Princesa testified for the prosecution,...
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