U.S. v. Rodriguez
| Decision Date | 16 December 2004 |
| Docket Number | No. 04-0082(CON).,No. 02-1488(L).,No. 03-1514(CON).,02-1488(L).,03-1514(CON).,04-0082(CON). |
| Citation | 392 F.3d 539 |
| Parties | UNITED STATES of America, Appellee, v. Luis RODRIGUEZ, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Jillian S. Harrington, New York City, (Barry M. Fallick, Rochman Platzer Fallick Sternheim Luca & Pearl, New York City, of counsel), for Appellant.
Scott Klugman, Assistant United States Attorney, Eastern District of New York, Brooklyn, N.Y. (Roslynn R. Mauskopf, United States Attorney for the Eastern District of New York, Susan Corkery, Assistant United States Attorney, Eastern District of New York, Brooklyn, NY, of counsel), for Appellee.
Before: MESKILL, McLAUGHLIN and B.D. PARKER, Jr., Circuit Judges.
Defendant-Appellant Luis Rodriguez was convicted following a jury trial in the United States District Court for the Eastern District of New York, Ross, J., of possession with intent to distribute heroin and conspiracy to distribute heroin. See 21 U.S.C. §§ 841, 846. Rodriguez now moves for a new trial arguing, inter alia, that the district court improperly admitted expert testimony offered by two law enforcement officers and that his trial counsel provided constitutionally ineffective assistance. Rodriguez principally argues, however, that his conviction should be reversed because the evidence was insufficient as a matter of law to warrant a conviction. On this score, we agree. We therefore reverse Rodriguez's conviction and remand with instructions to enter a judgment of acquittal.
From July to December 2000, the Drug Enforcement Agency (DEA) conducted an investigation into the activities of Carlos Medina, a suspected narcotics dealer. During this six month investigation a DEA confidential informant, Enrique Ramos, personally met with and spoke by telephone to Medina on several occasions to arrange the purchase of heroin. The investigation culminated on December 13, 2000, when the DEA arranged a "buy and bust" operation at which Ramos was to purchase heroin from Medina. Ramos and Medina arranged to meet at a Boston Market restaurant to consummate the transaction. The prosecution against Rodriguez and an alleged co-conspirator, Tommy Cruz, centered on their involvement in the events surrounding that meeting.
Rodriguez and Cruz were charged in a single indictment with two counts: conspiracy to distribute a substance containing heroin in an amount of 100 grams or more and possession with intent to distribute a similar amount of heroin. They were tried jointly. At trial, the government postulated that both men knowingly and intentionally assisted in the Boston Market meeting and the attempted sale of the heroin by serving as "lookouts" for Medina. That is, they allegedly protected Medina from detection by law enforcement and robbery by rival drug dealers. During the course of a two day trial the government offered the testimony of Ramos and five DEA agents. The government's evidence consisted of the following.
Before Medina met with Ramos, Rodriguez and Cruz arrived together at the Boston Market in a Lincoln Town Car. The DEA investigation had not previously targeted either individual as being involved with Medina. But, when Rodriguez and Cruz exited their vehicle and began surveying the surrounding area and stores, DEA agents began to monitor their actions. DEA surveillance also showed that Rodriguez and Cruz examined vehicles in the restaurant's parking lot, with Cruz even walking up to and peering into a DEA surveillance van. Only after doing so did they enter the Boston Market to order food. Rodriguez and Cruz then sat together, several tables from where Ramos already was seated.
Thereafter, Medina arrived at the Boston Market and sat with Ramos. In hushed voices Ramos and Medina discussed the sale of heroin, and Ramos agreed to accept 900 grams of heroin at a price of $76 per gram. After the negotiations were complete Medina left the Boston Market, promising Ramos that he would return with the drugs. Medina walked east through the restaurant's parking lot, and DEA agents observed him make a call on his cellular telephone. Soon thereafter, Rodriguez and Cruz exited the restaurant, entered the Lincoln Town Car and, as Medina had done minutes earlier, proceeded east through the parking lot.
As the agents waited for Medina to return with the heroin they saw the Lincoln Town Car carrying three unidentifiable passengers drive past both their surveillance van and the Boston Market. Approximately three minutes later, the car reappeared. This time it carried only two passengers, Cruz and Medina, and it proceeded into the parking lot. At the same time agents observed Rodriguez "suspicious[ly]" standing alone on a street corner a block from the restaurant, looking toward the restaurant's parking lot.
On seeing Medina, Ramos exited the Boston Market and approached the car; as he did so, Ramos noticed that Cruz was in the driver's seat while Medina sat alongside him in the front passenger seat. Ramos entered the back seat of the car and Medina directed him to look in a box located behind the driver's seat. Ramos opened the box and observed heroin hidden inside a plastic bag. Satisfied, Ramos informed Medina that he would retrieve cash to finalize the transaction. Instead, Ramos exited the car and gave the DEA agents a prearranged arrest signal. In response, the agents converged on the car and arrested Cruz and Medina. They also searched the car, seizing a total of 898.1 grams of heroin. Also seized from the back seat of the car was a locked briefcase that contained two weapons (an electronic taser gun and OC spray1) and documentation (including a hotel bill and passport) bearing Rodriguez's name. Finally, the agents seized a cellular telephone and a pager from Medina.
After his arrest Cruz professed that he did not know that Medina was selling narcotics. Instead, Cruz stated that he had been asked "to watch someone's back" and did not know precisely why Medina met with Ramos. For his part, Medina immediately began to cooperate. Rodriguez was apprehended three weeks later, at which time agents also seized a cellular telephone that he was carrying. A DEA agent testified that one day after his arrest, while awaiting his initial appearance before a magistrate judge, Rodriguez, apparently referencing the Lincoln Town Car and the items found within it, asked where his car and passport were being kept.
At trial the government also offered the expert testimony of two DEA agents. One of these witnesses, Special Agent Mark Tully, opined that when Cruz stated that he had arrived at the Boston Market "to watch someone's back" he used a phrase commonly understood in narcotics jargon to mean serving as a lookout for a drug deal. The government also offered the expert testimony of Agent Brian Fleming, who oversaw the investigation. He testified that drug dealers usually bring armed associates to such transactions as a means of guarding against robbery by rival drug dealers and to detect law enforcement activity.
Finally, the government offered two pieces of demonstrative evidence against Rodriguez. First, to establish that Rodriguez owned the Lincoln Town Car the government offered into evidence the taser gun, OC spray and documentation bearing Rodriguez's name, all of which were seized from the locked briefcase inside the vehicle. Second, the government offered records from the cellular telephones and pager seized when Medina and Rodriguez were arrested separately. These records showed that during the two days preceding Medina's meeting with Ramos thirteen telephone calls and four pages were placed between the two phones. The toll records also showed that on the day of the meeting six calls were placed between the seized phones, with two calls being made minutes before Rodriguez and Cruz arrived at the Boston Market. Additionally, the records indicated that a call was placed between the two phones corresponding to when agents observed Medina talking on a cellular telephone as he walked through the restaurant's parking lot after finalizing the terms of the sale with Ramos.
After Agent Fleming completed his testimony the government rested its case. Although the record before us indicates that Medina was cooperating, the government did not offer his testimony. Counsel for Rodriguez and Cruz then moved for a judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure, arguing that the government had failed to demonstrate that either defendant knew that Medina engaged in a drug deal or acted with the specific intent to provide assistance to a drug transaction. Specifically, counsel for Rodriguez maintained that the government had offered only "suspicious behavior coupled with some cell phone calls" such that "[t]he government never demonstrated knowledge and intent on the part of Mr. Rodriguez as part of this conspiracy and the evidence isn't sufficient to sustain the case going to the jury." When the district court denied the motions, Rodriguez and Cruz elected not to call any witnesses to testify on their behalf. The jury subsequently convicted Rodriguez on both the conspiracy charge and the substantive possession charge. The jury acquitted Cruz of conspiracy but convicted him on the substantive charge.
Thereafter, the district court sentenced Rodriguez principally to 188 months imprisonment, to be followed by five years of supervised release. A judgment of conviction was entered on July 31, 2003, from which Rodriguez timely appealed.
Rodriguez asks us to determine whether the government presented evidence that proved his guilt on the charged crimes beyond a reasonable doubt. To prevail, Rodriguez "bears a heavy burden," United States v. Aina-Marshall, 336 F.3d 167, 171 (2d Cir.2003), as our inquiry...
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