U.S. v. Rivera-Ruiz, RIVERA-RUI

• Decision Date: 13 November 2000
• Docket Number: D,RIVERA-RUI,No. 98-1538,98-1538
• Citation: 244 F.3d 263
• Parties: (1st Cir. 2001) UNITED STATES OF AMERICA, Appellee, v. CARLOSefendant, Appellant. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 263

244 F.3d 263 (1st Cir. 2001)

UNITED STATES OF AMERICA, Appellee, v. CARLOS RIVERA-RUIZ, Defendant, Appellant.

No. 98-1538

United States Court of Appeals For the First Circuit

Heard November 13, 2000

Decided April 5, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Carmen Consuelo Cerezo, U.S. District Judge] [Copyrighted Material Omitted]

Ramon M. Gonzalez for appellant.

Ruth J. Vernet, with whom Guillermo Gil, United States Attorney, Jorge E. Vega-Pacheco, Assistant United States Attorney, Chief, Criminal Division, and Camille Velez-Rive, Assistant United States Attorney, were on brief for appellee.

Before Torruella, Chief Judge, Lynch and Lipez, Circuit Judges.

LIPEZ, Circuit Judge.

Carlos Rivera-Ruiz appeals his conviction for one count of conspiracy to possess with intent to distribute cocaine. He also appeals his sentence of 121 months. Rivera claims that the evidence presented at trial, consisting largely of the testimony of one cooperating witness about one transaction, was insufficient to convict him of participating in a conspiracy. He also argues that there was an impermissible variance between the allegations in the indictment and the proof offered at trial, and that the prosecutor's closing argument denied him due process of law. Finally, he claims that the district court made an error in sentencing. Although we acknowledge the closeness of the sufficiency issue, we affirm the conviction and sentence.

I. Background

Carlos Rivera-Ruiz ("Rivera") was charged in count six of a ten-count indictment charging various individuals with violations of federal drug laws. While some of the other counts charged substantive drug offenses, Rivera was charged with conspiracy to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1)¹ and 846.² The indictment alleged that Rivera, together with Jaime Padilla Rodriguez ("Padilla"), Jorge Arroyo-Rivera ("Arroyo"), and two unindicted co-conspirators,³ conspired to possess and distribute cocaine. All of the other individuals named in the indictment pled guilty. Trial for Rivera commenced in mid-September, 1997. Following a three-day trial, the jury returned a verdict of guilty. The court sentenced Rivera to 121 months in prison.

II. The Sufficiency of the Evidence

Rivera moved for a judgment of acquittal after the government rested and again at the close of all the evidence. See Fed. R. Crim. P. 29. The district court denied that motion, and we review that ruling de novo. See United States v. Hernandez, 146 F.3d 30, 32 (1st Cir. 1998). In considering the evidence presented at trial, we view the facts and draw all reasonable inferences in favor of the prosecution. See United States v. Baldyga, 233 F.3d 674, 678 (1st Cir. 2000). We have a limited role in reviewing this evidence.

An appellate court plays a very circumscribed role in gauging the sufficiency of the evidentiary foundation upon which a criminal conviction rests. The court of appeals neither weighs the credibility of the witnesses nor attempts to assess whether the prosecution succeeded in eliminating every possible theory consistent with the defendant's innocence.

United States v. Woodward, 149 F.3d 46, 56 (1st Cir. 1998) (quoting United States v. Noah, 130 F.3d 490, 494 (1st Cir. 1997)). Our inquiry is only whether "the guilty verdict finds support in a 'plausible rendition of the record.'" United States v. Echeverri, 982 F.2d 675, 677 (1st Cir. 1993) (quoting United States v. Ortiz, 966 F.2d 707, 711 (1st Cir. 1992)).

A. The Evidence

The evidence presented by the government at Rivera's trial consisted largely of the testimony of William Negron Zapata, who testified that he met Rivera in 1986 through a mutual friend, Ricardo Maldonado. He further stated that he saw Rivera on several occasions in 1986, as well as in 1990. The two would meet at Rivera's home, and Negron stated that Rivera sometimes visited him at his automobile repair shop which he operated out of his home. He successfully identified photographs of property owned by Rivera at trial and knew that Rivera also ran an automobile repair shop out of his home.

Regarding the transactions charged in the indictment, Negron testified that he agreed to purchase two kilograms of cocaine on April 15, 1991 from Amador Irizarry Sanabria, a man he had known since 1989 and had purchased drugs from on prior occasions. Negron paid him a total of $26,000 for the drugs, or $13,000 for each kilogram. Jaime Padilla Rodriguez, a friend of Irizarry's, arrived at Negron's house that day to deliver the cocaine. Because Negron had customers in his auto repair shop when Padilla arrived, he asked Padilla to leave and follow a specified road to a point where they could exchange the cocaine more privately. Padilla complied with these instructions. Negron, accompanied by his personal bodyguard, Jorge Arroyo Rivera, met Padilla at the specified location and collected the package of cocaine.⁴

After obtaining the two kilograms of cocaine from Irizarry, Negron contacted his friend Victor Ramirez de Arellano, an attorney. Negron first met Ramirez in December 1989 when he retained him to represent his uncle in a criminal matter. Ramirez had purchased drugs from Negron on several occasions beginning in February 1991. On April 15, Ramirez agreed to buy one kilogram of cocaine for $13,500. Ramirez corroborated Negron's account of this transaction at trial.

Negron also called Rivera on the afternoon of April 15, and Rivera agreed to buy the other kilogram of cocaine from him for $13,500. The two agreed that they would meet at Rivera's house at the Anones Ward in Las Marias the following morning. The prosecution did not offer a record of this phone call at trial, and Negron testified on cross-examination that he did not remember what phone he used to place the call. Early on April 16, Negron arrived at Rivera's home, unaccompanied, and gave him the drugs in exchange for $13,500. He stated that this transaction occurred in a living room on the first floor of Rivera's house and that only he and Rivera were present when they exchanged the drugs.

After leaving Rivera's house, Negron called Padilla from his cellular phone and asked him to bring an additional two kilograms of cocaine from Irizarry. As before, Padilla arrived at Negron's home and auto shop and the two then left separately to meet at the same specified location. Negron gave Padilla $26,000 for the two kilograms of cocaine he had received the day before, and Padilla gave him an additional two kilograms.

Negron sold one kilogram to Roberto Rivera Ortiz, to whom he had sold cocaine on several prior occasions. He sold the other kilogram to Ramirez the following morning, April 17. Ramirez testified that he then sold the cocaine to two other people. Padilla arrived at Negron's house to collect the $26,000 payment for the cocaine after Negron made these sales.

Negron's testimony about his drug transactions in April 1991 was uncorroborated, except by Ramirez who corroborated Negron's account of their two transactions. However, Negron's testimony was also uncontradicted. The only witness offered by Rivera was Ramonita Malave, his ex-wife. The two were married for 18 years and divorced in 1989, two years prior to the events described in the indictment. Malave testified that a man named Jose Lopez, together with his family, was renting the first floor of the home owned by Rivera where Negron alleged that the transfer of cocaine had occurred. She stated that Lopez moved from the first floor of the home to the second floor sometime after April 1991, but she was uncertain of the exact date when questioned on cross-examination. Malave also testified that Rivera was able to purchase and maintain several properties because of the rents he collected and the income he earned from his automobile repair shop.

B. Applicable Principles

To establish Rivera's guilt on the conspiracy charge, the government needed to show "the existence of a conspiracy, the defendant's knowledge of the conspiracy, and the defendant's voluntary participation in the conspiracy." United States v. Morillo, 158 F.3d 18, 23 (1st Cir. 1998). Rivera conceded, both below and on appeal, that a conspiracy to distribute cocaine existed. He only disputes his own involvement with that conspiracy.

Rivera's voluntary participation in the conspiracy could have been demonstrated by evidence that he intended to enter into an agreement with the other parties to the conspiracy and that he intended "to effectuate the commission of the substantive offense." United States v. Piper, 35 F.3d 611, 615 (1st Cir. 1994). "The agreement itself 'need not be express, but may consist of no more than a tacit understanding.'" Echeverri, 982 F.2d at 679 (quoting United States v. Glover, 814 F.2d 15, 16 (1st Cir. 1987)). The proof of Rivera's involvement in the conspiracy "may consist of indirect evidence, including reasonable inferences drawn from attendant circumstances." Id.

In determining whether a single conspiracy exists, we have considered whether the participants shared a common goal. See United States v. Portela, 167 F.3d 687, 695 (1st Cir. 1999). The common goal of selling cocaine for profit satisfies this element. See id. We have also examined whether there was overlap among the participants to the conspiracy. See id. Such overlap exists where a conspiracy is marked by the "pervasive involvement of a single 'core conspirator,'" or "hub character." Id. (quoting United States v. Wilson, 116 F.3d 1066, 1076 (5th Cir. 1997)).

There is no need for a conspirator to know the other participants in the conspiracy. See United States v. Sepulveda, 15 F.3d 1161, 1191 (1st Cir. 1993); United States v. Nueva, 979 F.2d 880, 884 (1st Cir. 1992) ("[T]he government need not prove that the defendant knew all the details or all the members of the conspiracy."). Additionally, there is no requirement that a conspirator realize the full...