U.S. v. Rodriguez

Decision Date13 May 2008
Docket NumberNo. 06-2719.,06-2719.
Citation525 F.3d 85
PartiesUNITED STATES of America, Appellee, v. Wilfredo Feliciano RODRIGUEZ, Defendant, Appellant.
CourtU.S. Court of Appeals — First Circuit

Linda Backiel, for appellant.

German A. Rieckehoff, Assistant United States Attorney, with whom Rosa Rodriguez Velez, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, were on brief for appellee.

Before BOUDIN, Chief Judge, SELYA, Circuit Judge, and KEENAN, District Judge.*

KEENAN, District Judge.

Appellant Wilfredo Feliciano Rodriguez ("Feliciano") was convicted after a jury trial for his participation in a multi-drug conspiracy that operated out of the Nuestra Senora de Covadonga public housing complex in Trujillo Alto, Puerto Rico ("Covadonga"), from 1998 through 2004. Feliciano challenges his conviction on the grounds that the cumulative effect of evidentiary errors deprived him of a fair trial and that the evidence presented at trial varied impermissibly from the allegations contained in the indictment. In addition, Feliciano challenges his sentence on the grounds that the district court imposed an unreasonable sentence; clearly erred in making findings regarding drug quantity and the brandishing of a firearm; imposed a sentence that was above the statutory maximum for the charge of conspiracy to possess weapons in furtherance of narcotics trafficking; and erroneously imposed consecutive sentences for two section 924(c) violations that were based on a single underlying drug conspiracy. For the following reasons, we affirm Appellant's convictions on Counts One, Two, and Six; vacate the conviction on Count Four; vacate the sentences on Counts Two and Six but not on Count One; and remand for resentencing on Counts Two and Six.


Appellant was one of eleven co-defendants charged in a six-count superseding indictment (the "Indictment") returned on March 11, 2004 by a grand jury sitting in the District of Puerto Rico. The Indictment charged Feliciano in four counts. Count One charged him with conspiracy to possess with intent to distribute five kilograms or more of cocaine, 50 grams or more of crack, one kilogram or more of heroin, and/or 1000 kilograms or more of marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), 846, and 860. Count Two charged him with conspiracy to use firearms in furtherance of the drug conspiracy, in violation of 18 U.S.C. §§ 924(c)(1)(A) and 924(o). Counts Four and Six each charged Feliciano with using and/or brandishing firearms in furtherance of a drug trafficking crime, respectively, on April 10, 2003 and April 19, 2003, in violation of 18 U.S.C. § 924(c)(1)(A)(ii).

Feliciano's co-defendants pleaded guilty and were eventually sentenced to terms ranging from 57 to 132 months. Feliciano opted to go to trial.

The Government's evidence of Feliciano's participation in the drug conspiracy at Covadonga consisted primarily of the testimony of Omar Medina, a cooperating co-conspirator who was a drug runner and seller at Covadonga; and the testimony of Oscar Espada, a government informant who was installed in a vacant apartment at Covadonga and directed by his police handlers to make secret videotape recordings of narcotics deals that took place at the drug point outside his building.

Medina's testimony established the following. Between 1998 and 2004, the Covadonga drug point operated as a thriving drug marketplace in which different dealers sold various brands, or lines, of crack, cocaine, heroin, and marijuana, with the organized assistance of runners and lookouts equipped with walkie-talkies. Feliciano, whom Medina knew since their childhood growing up together in the housing complex, began working in the drug trade at Covadonga in 1998, when he was a teenager. Feliciano assisted his brother-in-law, Bebe, in Bebe's operation of a drug point by sorting cocaine into bags and organizing the bags into quantities of one hundred, or "decks". Feliciano also acted as Bebe's runner, distributing cocaine and collecting the $5 in proceeds from the sale of each baggie. Feliciano served as a runner on a daily basis, delivering between 50 and 100 bags of cocaine, two or three times per eight hour shift.

Feliciano worked for Bebe from 1998 until 2002, when Bebe was murdered after a power struggle over control of the drug point. During this period, Medina also worked at the drug point as a seller and runner of marijuana, crack, cocaine, and heroin. Medina testified that, after Bebe's murder, an individual named Luis Osorio, a/k/a "Trumpi", assumed power over the drug point and was joined by Cristian Villegas, a/k/a "Casi". In April 2003, "Trumpi" was murdered, "Casi" was driven out of Covadonga, and Feliciano, along with Alex Trujillo, assumed control. Feliciano acted as a leader, or owner, until his arrest on June 1, 2004. Trujillo went into hiding and, at the time of Feliciano's trial, remained a fugitive.

As the owner of a drug point, Feliciano employed various runners and sellers, including Medina, who sold bags of heroin and cocaine on Feliciano's behalf. Feliciano's heroin was distinguished from the heroin sold by other dealers at Covadonga by blue foil packaging, and his cocaine was distinguished by pictures of a little bus that were stamped onto the bags.

Medina testified that drug workers in Covadonga regularly carried weapons to protect their drug operations. Medina observed Feliciano carrying weapons at Covadonga several times in 2003. In addition, Feliciano authorized the distribution of and supplied weapons to his drug workers at Covadonga. Medina also testified that Feliciano himself fired an AR-15 rifle at "shady"-looking cars that passed through Covadonga.

Espada, a professional photographer who was in the witness protection program at the time that he agreed to work on the Government's behalf, testified about his installation at Covadonga, his infiltration of the drug ring, and the videotapes he made of numerous drug transactions that took place at the drug point that Appellant operated, which was located outside Espada's building. Espada surreptitiously videotaped the narcotics activity from his apartment window. Espada began making recordings upon his arrival at Covadonga in October 2002 and stopped only in April 2003, when he fled Covadonga in the wake of "Trumpi"'s murder. Espada testified that he was mistakenly believed to be associated with "Casi" and "Trumpi" and that shots were fired at him.

The Government introduced into evidence 78 videotapes recorded by Espada. Feliciano appeared on four tapes made on four separate days: December 21 and 31, 2002 and April 10 and 19, 2003. The videotape of December 21, 2002 showed Feliciano delivering a package of cocaine to and receiving cash from an individual named "Junito", whom Medina identified as one of the sellers at the drug point. The December 31, 2002 videotape also showed Feliciano receiving money from a drug sale. The videotapes of April 10 and 19, 2003 corresponded to the overt acts charged in the Indictment in connection with the section 924(c) violations charged in Counts Four and Six and showed Appellant and his co-conspirators in possession of firearms. Espada also testified that he observed Feliciano on a number of occasions possess and distribute weapons and cocaine.

Medina was called on to describe the activity that was depicted on the videotapes and, in particular, to identify Feliciano. On the April 10 videotape, Medina identified Feliciano handing a pistol to an individual named "Siese", whom Medina described as the owner of a drug point in a housing complex outside of Covadonga. Also on the April 10 videotape, Medina identified "Carli" Rojas, one of Feliciano's drug sellers, with a firearm in his waistband, which Medina said Rojas carried for protection. On the April 19 videotape, Medina identified Feliciano carrying a firearm in his hand in the company of three men whose functions Medina did not identify.

In addition to the testimonies of Medina and Espada, the Government offered at the outset of its case the testimony of Drug Enforcement Administration Agent Anthony Toro Zambrano ("Toro"), the lead agent on the case. Agent Toro was qualified as an expert in the operations of drug conspiracies and testified about the manner in which a drug point typically functions, including the hierarchy among leaders, sellers, enforcers, runners, and lookouts, and the manner in which different brands of drugs are typically packaged. Toro also testified about his seizure of drugs and drug paraphernalia from the Covadonga apartment of Alex Trujillo, the individual who Medina testified "took over" the Covadonga drug operation along with Feliciano. The drugs and paraphernalia seized by Toro displayed the markings of several different brands of narcotics that were sold by different drug owners at Covadonga.

After a ten-day trial, the jury found Feliciano guilty on all four counts. The jury also found by special verdict form that the drug conspiracy charged in Count One involved the threshold drug quantities charged in the Indictment. The district court sentenced Feliciano to concurrent sentences of life imprisonment on Counts One and Two. The court also imposed a sentence of seven years on Count Four, based on a finding of brandishing, and 25 years on Count Six, the mandatory minimum sentence for a second or subsequent conviction under section 924(c), with the sentences on Counts Four and Six to run consecutively to each other and to the life sentences in Counts One and Two. Thus, Feliciano received cumulative sentences of life imprisonment plus 32 years. This timely appeal followed.

(I) Alleged Evidentiary Errors

Feliciano claims that the cumulative effect of improperly introduced evidence deprived him of a fair trial. The evidence to which he objects consisted of: (a) purportedly improper testimony of the lead agent, Agent Toro; (b) testimony...

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