U.S. v. Rodriguez

• Decision Date: 24 February 1983
• Docket Number: No. 275,D,275
• Citation: 702 F.2d 38
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Felipe RODRIGUEZ, Defendant-Appellee. ocket 82-1211.
• Court: U.S. Court of Appeals — Second Circuit

Page 38

702 F.2d 38

UNITED STATES of America, Plaintiff-Appellant, v. Felipe RODRIGUEZ, Defendant-Appellee.

No. 275, Docket 82-1211.

United States Court of Appeals, Second Circuit.

Argued Oct. 12, 1982.

Decided Feb. 24, 1983.

William B. Pollard, III, Asst. U.S. Atty., for the Southern District of New York, New York City (John S. Martin, Jr., U.S. Atty., for the Southern District of New York; Roanne L. Mann, Asst. U.S. Atty., New York City, of counsel), for plaintiff-appellant.

Martin J. Proscia, Kew Gardens, N.Y., for defendant-appellee.

Before MESKILL, PIERCE and FAIRCHILD, ^* Circuit Judges.

PIERCE, Circuit Judge:

During the early evening of August 20, 1981, an undercover agent of the Federal Drug Enforcement Administration (DEA), Lawrence Acevedo, drove with a confidential informant to the area of Kingsbridge Road and Jerome Avenue in the Bronx, New York City. On Jerome Avenue, Agent Acevedo stopped the automobile (the Acevedo car) and the confidential informant left the vehicle and met with Victor Rodriguez, ¹ as previously arranged. Victor then joined Agent Acevedo and the informant in the car and began negotiating a $10,000 sale of cocaine to Acevedo. Three DEA surveillance agents--Hudson, Rice, and Jones--were also in the locale of the prearranged meeting of Victor, the informant, and Agent Acevedo, and were parked nearby.

While the three men were negotiating the drug deal in the Acevedo car, Agent Hudson, who, with his partner, Agent Rice, was parked about seven car lengths to the south of that car, observed defendant-appellee, Felipe Rodriguez, walk past and look into Hudson's and Rice's vehicle (the Hudson car), and then walk past and look into the Acevedo car. As Victor Rodriguez was counting the $10,000, Felipe Rodriguez peered "very intently and very determinedly in the [Acevedo] car." Tr. 36. ² Agent Acevedo asked Victor if he knew who the person was, and Victor nodded affirmatively. Acevedo followed Felipe in his rear view mirror for about four car lengths south, and then turned his attention back to the negotiations.

After Victor finished counting the money, he and the informant left the Acevedo car and walked north. Agent Acevedo testified that Victor stated "he was going to his source and would be back shortly." Tr. 37. According to the testimony of Agents Acevedo, Rice and Hudson, during the approximately 20 minutes Victor and the informant were gone, Felipe walked up and down the same block--walking by the Acevedo car some three to four times, looking into the car each time, but not as intently as the first time when his brother, Victor, was counting the money. According to Agent Hudson, Felipe Rodriguez appeared to be engaged in countersurveillance. Victor then returned to the Acevedo car with the informant and one "Jose." Jose stated he did not wish to do business at 196th Street and Jerome Avenue because it was a busy location, police vehicles might pass by, and they might attract attention. Jose expressed his wish to do business further uptown, north of 196th Street, and invited Acevedo to his apartment. When Acevedo refused, Jose and Victor left and walked north, apparently to discuss what to do. Agent Rice observed Jose and Victor proceed north on Jerome Avenue, out of his sight. ³ Agent Jones, unlike his agent-colleagues, testified before the jury that after Victor had counted the money, his brother Felipe joined him and left the area with him. ⁴

Victor then returned and entered the Acevedo car. He asked Acevedo to drive several blocks north to Morris and Jerome Avenues to complete the transaction. Acevedo did so, accompanied by Victor and the informant. Having arrived at this second location, Acevedo parked by a fire hydrant. Acevedo remained in the car while Victor left the car and entered an apartment building across the street. A few minutes later, five individuals were observed by Agent Acevedo leaving the building together: Felipe Rodriguez, Victor Rodriguez, Sammy Fernandez, Jose, and a person later identified as "Danny." ⁵ Two agents testified that Felipe conversed with the others at this second location. Agent Rice observed Felipe in what appeared to be conversation with Victor and Sammy after leaving the building; Jones testified that he saw Felipe conversing with Victor, Sammy and Jose on the corner of Morris and Jerome, about 50 yards from the Acevedo car minutes prior to the arrest.

Having left the building, Felipe, Victor and Sammy approached the Acevedo car, while Jose and Danny remained standing on the corner. Sammy and Victor entered the car. Agents Acevedo, Jones and Rice observed the actions of Felipe Rodriguez at this point, although describing his movements somewhat differently. Agent Acevedo, who was in the driver's seat of the car, testified that he saw Felipe walk to the rear of the car when Sammy and Victor got in, and stand outside it. Jones testified that he observed Felipe standing on the corner where the vehicle was parked. Agent Rice stated that he saw Felipe step back from the Acevedo car "possibly 20 or 30 feet sort of up a hill, and he again was looking around in the vicinity." Tr. 138. Then, according to Acevedo, Sammy gave Acevedo a brown paper bag containing two plastic bags of white powder. At that time, Acevedo gave a prearranged arrest signal, and Felipe Rodriguez and Jose "took off like a bolt of lightening [sic]." Tr. 157. (Agent Jones). Agents Jones and Joura arrested Felipe, whom they found "walking up [an adjacent] street in a hurried fashion." Tr. 157-58.

The next day, Felipe Rodriguez was questioned at the United States Attorney's office in the Southern District of New York. When asked what he was doing in the vicinity of 196th and Jerome the previous evening, Felipe made a statement "to the effect that he was out jogging, that he had jogged passed the vehicle, said hello to his brother, who was in the undercover [Acevedo] vehicle, and jogged past without stopping, and that he did not remain near that vehicle." ⁶ Tr. 139-40 (Agent Rice).

On August 31, 1981, a grand jury in the Southern District of New York indicted appellee Felipe Rodriguez, his brother Victor Rodriguez, and Samuel Fernandez, each on two counts of violating federal drug laws. ⁷ Felipe and Victor Rodriguez were tried before Judge Knapp and a jury, commencing on November 30, 1981. ⁸ The jury returned a guilty verdict against Victor on both counts on December 2, 1981, and against Felipe the following day. Felipe Rodriguez moved for judgment of acquittal on the ground of insufficient evidence, pursuant to Fed.R.Crim.P. 29(c). The district court granted the motion by oral order entered on May 6, 1982.

In ruling on the motion for acquittal, the district judge pointed out that "the crucial thing here" was that Felipe and Victor were brothers. Tr. 2 (Rule 29 hearing). The judge stated, "Nothing happened here that isn't equally explainable by the fact that they are brothers." Id. In addition the judge concluded that "[t]he testimony of [Agent] Jones that [Felipe] left with his brother [at the first location] is unbelievable as a matter of law." Tr. 5. This appeal followed.

On appeal, the government objects, inter alia, to these two principal bases for granting the Rule 29 motion--the "brother" theory and rejection by the judge of Agent Jones' testimony. By granting the motion, it is argued, the district judge erred by "substitut[ing] [his] own determination of the credibility of witnesses, the weight of the evidence, and the reasonable inferences for that of the jury." United States v. Artuso, 618 F.2d 192, 195 (2d Cir.), cert. denied, 449 U.S. 861, 101 S.Ct. 226, 66 L.Ed.2d 102 (1980). We agree.

The standard which a trial judge must apply to a motion for acquittal in this Circuit is set forth in United States v. Taylor, 464 F.2d 240, 243 (2d Cir.1972):

The true rule, therefore, is that a trial judge, in passing upon a motion for directed verdict of acquittal, must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt. If he concludes that upon the evidence there must be such a doubt in a reasonable mind, he must grant the motion; or, to state it another way, if there is no evidence upon which a reasonable mind might fairly conclude guilt beyond a reasonable doubt, the motion must be granted. If he concludes that either of the two results, a reasonable doubt or no reasonable doubt, is fairly possible, he must let the jury decide the matter. (citation omitted) (emphasis added)

See also Jackson v. Virginia, 443 U.S. 307, 318-19 n. 11, 99 S.Ct. 2781, 2788 n. 11, 61 L.Ed.2d 560 (1979); United States v. Lieberman, 637 F.2d 95, 104-05 (2d Cir.1980); United States v. Artuso, supra, 618 F.2d at 195. In addition, "all reasonable inferences are to be resolved in favor of the prosecution and the trial court is required to view the evidence in the light most favorable to the Government with respect to each element of the offense." United States v. Artuso, supra, 618 F.2d at 195 (citation omitted).

In this case, evidence of Felipe Rodriguez' specific actions occurring during the course of events described with particularity by the government's witnesses provided a sufficient basis upon which a jury could--and did--conclude that he was acting as a "lookout" during the drug transaction. We note, for example, that Felipe was present at a prearranged time and place for the negotiation; spent 30-45 minutes walking up and down the block past the surveillance and undercover vehicles and peering into both at the first location; reappeared at a second location about four blocks north shortly thereafter with four other men, one of whom--Victor Rodriguez--was found by the jury to have been involved in the cocaine transaction; conversed with two or three of the others just prior to the sale; stood at...