U.S. v. Pomales-Lebron

• Decision Date: 17 January 2008
• Docket Number: No. 06-1620.,06-1620.
• Citation: 513 F.3d 262
• Court: U.S. Court of Appeals — First Circuit
• Parties: UNITED STATES of America, Appellee, v. Edgar POMALES-LEBRÓN, a/k/a Edgardo Oscar Pomales-Lebrón, Defendant, Appellant.

513 F.3d 262

UNITED STATES of America, Appellee, v. Edgar POMALES-LEBRÓN, a/k/a Edgardo Oscar Pomales-Lebrón, Defendant, Appellant.

No. 06-1620.

United States Court of Appeals, First Circuit.

Heard November 5, 2007.

Decided January 17, 2008.

Arturo Luciano Delgado, for appellant.

Andrew Massucco-LaTaif, Assistant United States Attorney, with whom Rosa Emilia Rodríguez Vélez, United States Attorney, Nelson J. Pérez-Soso, Assistant United States Attorney, and Germán A. Rieckehoff, Assistant United States Attorney, were on brief for appellee.

Before TORRUELLA, Circuit Judge, BALDOCK^*, Senior Circuit Judge, and SMITH^**, District Judge.

BALDOCK, Senior Circuit Judge.

A grand jury indicted defendant Edgar Pomales-Lebrón and five co-defendants for drug-trafficking offenses. Defendant was charged with: (1) conspiracy to possess with intent to distribute fifty grams or more of cocaine base, in violation of 21 U.S.C. §§ 841, 846 (Count 1); and (2) possession with intent to distribute five grams or more of cocaine base, in violation of 21 U.S.C. § 841 and 18 U.S.C. § 2 (Count 2).¹ A petit jury convicted defendant on both counts. On appeal, defendant challenges his convictions, arguing that the district court erred in denying his: (1) Motion for Acquittal; and (2) Motion for New Trial. See Fed.R.Crim.P. 29, 33. As to defendant's Rule 29 Motion for Acquittal, we have jurisdiction, pursuant to 28 U.S.C. § 1291, and affirm. As to defendant's arguments pertaining to Rule 33, we lack jurisdiction and dismiss.

I.

Viewed in the light most favorable to the government, the trial evidence demonstrated that: in late 2003, Drug Enforcement Administration (DEA) Special Agent Todd Yant (SA Yant) began investigating the Joel Rivera-Delgado drug-trafficking organization (the Rivera organization) based in Guayama, Puerto Rico. (Tr. 68:10-11.) To further the investigation, DEA used a paid confidential source (CS) to infiltrate the Rivera organization. (Id.; see also 12/2 Tr. 30.) At trial, the CS testified in person and admitted he used marijuana in December 2003 and January 2004. (See 12/2 Tr. 29, 32.)

On December 19, 2003, the CS was introduced to Harry Arizmendi-Serrano, a Rivera organization affiliate. (11/30 Tr. 78; 12/1 Tr. 100.) The CS purchased 100 vials of cocaine base (crack), weighing 7.4 grams (12/1 Tr. 16), from Arizmendi. (11/30 Tr. 78; 12/1 Tr. 100.) According to the CS, although he did not know defendant Edgar Pomales-Lebrón's name at the time (12/1 Tr. 131), defendant was present when he purchased crack from Arizmendi on December 19.² (12/1 Tr. 101, 104, 109-10.) The CS recorded this transaction; DEA conducted partial video surveillance.³ (12/1 Tr. 75-76, 105.)

On December 31, 2003, the CS arranged for a larger controlled buy from Arizmendi. (11/30 Tr. 79-80.) SA Yant testified that the 600 crack vials the CS purchased on that date weighed 49 grams. (11/30 Tr. 81.) DEA conducted video surveillance of the deal. (12/1 Tr. 83.) Defendant was not present during the December 31 transaction. (12/1 Tr. 16, 23.)

On January 12, 2004, the CS met with Arizmendi and defendant to arrange a 1000-vial crack buy. (11/30 Tr. 84-85; 12/1 Tr. 117.) The CS learned defendant's name for the first time at this meeting. (11/30 Tr. 84; 12/1 Tr. 130-31.) When asked by the CS, defendant and Arizmendi identified their supplier as "Joel."⁴ (12/1 Tr. 132-33.)

The next day, January 13, 2004, the CS purchased 1000 vials (73.7 grams) of crack from defendant. (Id. 85, 87; 12/1 Tr. 122-25; see also 12/1 Tr. 17.) The CS recorded the transaction; DEA conducted partial video surveillance.⁵ The audio recordings from the CS's wire were played to the jury. (12/2 Tr. 5.) On the recording, a voice—identified as defendant's by the CS—is heard counting. (12/2 Tr. 9-10; 12/1 Tr. 122-25.) The CS testified that defendant was counting money he had handed to defendant in payment for the narcotics. (12/2 Tr. 9-10; 12/1 Tr. 122-25.) Later on the recording, defendant is heard saying to the CS: "[T]ake that bag, and let's get the F out of here." (12/2 Tr. 9-10; 12/1 Tr. 122-25.) The CS testified that the "bag" defendant referred to was the bag containing the 1000 vials of crack.⁶ (12/2 Tr. 11.)

After the January 13, 2004 transaction, the CS placed—at the DEA's direction— several recorded calls to defendant. (12/1 Tr. 133.) The district court admitted these recordings into evidence; they were played for the jury. (12/2 Tr. 14-17, 20.) AS to each recorded call, the CS identified defendant's voice, as well as his own. (See id.)

In the first recorded call, the CS referenced "a thousand" and stated that "the stuff was good" in talking to defendant. (12/2 Tr. 14.) The CS testified that this was a reference to the January 13, 2004 buy. (12/2 Tr. 14-15; 12/1 Tr. 134.) The connection dropped and the call ended. During the second call, the CS asked defendant about whether he could get "2000" (which, the CS testified, was a reference to 2000 vials of crack). (12/2 Tr. 15-16.) Defendant refused to discuss the matter over the phone with the CS. (12/2 Tr. 15-16.)

In the third call, the CS tried to get defendant to agree to meet his "friend" (in reality, an undercover DEA agent). (12/2 Tr. 16; 12/1 Tr. 133-34.) Defendant, however, refused. (12/1 Tr. 134.) At some point in this conversation, the CS mentioned "fifteen hundred"—i.e., 1500 vials of crack (12/2 Tr. 18)—to which defendant responded: "[N]o, those things cannot be talked about over the telephone." (12/2 Tr. 18.) During the fourth, and final, recorded call, the CS asked defendant to discount ten cents on each "nail." (12/2 Tr. 20.) The CS also referenced "fifteen hundred nails." (12/2 Tr. 20.) The CS testified that by "nail" he was referring to one vial of crack. (12/2 Tr. 20-21.)

Based on these conversations, as well as other DEA investigatory efforts, SA Yant applied for a Title III wiretap of defendant's phone number.⁷ A U.S. District Judge granted SA Yant's application on March 25, 2004. (11/30 Tr. 105; see also 11/30 Tr. 100-04.) During the thirty-day wire tap, DEA intercepted and recorded several drug-trafficking related discussions on defendant's phone line. The district court admitted portions of these recorded calls, which were played for the jury. (E.g., 11/30 Tr. 107, 128 (co-defendant Omar Caraballo-García's arrest for possessing 13 vials of crack discussed by defendant and Arizmendi on defendant's wire); e.g., 11/30 Tr. 108, 124-25, 136 (seizure of 600 vials of crack from a suspected member of the Rivera organization—"Otto"—whose vehicle was used during the December 31, 2003 and January 13, 2004 drug transactions, discussed by defendant and Arizmendi on defendant's wire); see also, e.g., 11/30 Tr. 132-33 (conversation between defendant and Arizmendi regarding Joel Rivera having "2100"); 11/30 Tr. 138-39 (conversation between defendant and Joel Rivera regarding Otto's arrest after the 600-vial seizure).) Additionally, based on his investigation, SA Yant testified that his conservative estimation was that the Rivera organization sold 125 grams of crack per week between 2002-2005. (12/1 Tr. 4-5, 10.)

At the close of the government's case, defendant moved for a judgment of acquittal under Fed.R.Crim.P. 29. (12/2 Tr. 70.) The district court denied the motion, finding sufficient evidence had been introduced to support defendant's conviction on both Count 1 and Count 2. (12/2 Tr. 70.)

II.

Under Fed.R.Crim.P. 29, we "must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction." Fed.R.Crim.P. 29. We review a denial of a motion for acquittal "de novo to determine whether any rational factfinder could have found that the evidence presented at trial, together with all reasonable inferences, viewed in the light most favorable to the government, established each element of the particular offense beyond a reasonable doubt." United States v. Campbell, 268 F.3d 1, 6 (1st Cir.2001).

To establish a violation of 21 U.S.C. § 846, the government must prove: "[1] the existence of a conspiracy, [2] the defendant's knowledge of the conspiracy, and [3] the defendant's knowing and voluntary participation in the conspiracy." United States v. Portalla, 496 F.3d 23, 26 (1st Cir.2007). To establish a violation of 21 U.S.C. § 841, the government must prove that defendant: (1) possessed crack cocaine, "either actually or constructively," (2) "did so with a specific intent to distribute the [crack] cocaine over which [he] had actual or constructive possession," and (3) "did so knowingly and intentionally." United States v. Lopez-Lopez, 282 F.3d 1, 19 (1st Cir.2002). Review of the record makes clear that the evidence introduced at trial adequately supported the jury's verdicts.

The recordings of the December 31, 2003 buy, the January 13, 2004 buy, and the calls between defendant and the CS (including the Title III calls) are likely sufficient—on their own—to support defendant's convictions on Count 1 and Count 2. We agree with the district court that defendant's voice—particularly on the January 13, 2004 recording and the Title III calls—constitutes compelling evidence of defendant's guilt. Even if, as defendant suggests, this evidence could be interpreted as non-incriminating, other evidence readily supported the jury's verdict. See Campbell, 268 F.3d at 6 (reviewing court must view the evidence in the light most favorable to the government).

The CS's testimony further evidenced defendant's guilt. The CS's testimony was corroborated by several sources, including the recorded conversations between the CS and defendant, as well as SA Yant's testimony. See, e.g., United States v. Vazquez Guadalupe, 407 F.3d 492, 499 (1st Cir.2005) (case did not turn on the CS's testimony where there were "audio and video tapes, in which the defendants incriminated themselves"). Indeed, SA Yant's testimony, and the recorded conversation itself, track the CS's testimony. Cf. United States v....