U.S. v. Rodriguez

• Decision Date: 05 October 1998
• Docket Number: Nos. 97-2002,97-2004,97-2003,s. 97-2002
• Citation: 162 F.3d 135
• Parties: 50 Fed. R. Evid. Serv. 1030 UNITED STATES, Appellee, v. Miguel RODRIGUEZ, a/k/a Negrito, Defendant, Appellant. UNITED STATES, Appellee, v. John ROSARIO, Defendant, Appellant. UNITED STATES, Appellee, v. Hector FAMANIA, a/k/a Dilenge, a/k/a Talinge, Defendant, Appellant. Appeals from the United States District Court for the District of Massachusetts . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 135

162 F.3d 135

50 Fed. R. Evid. Serv. 1030

UNITED STATES, Appellee, v. Miguel RODRIGUEZ, a/k/a Negrito, Defendant, Appellant.

UNITED STATES, Appellee, v. John ROSARIO, Defendant, Appellant.

UNITED STATES, Appellee, v. Hector FAMANIA, a/k/a Dilenge, a/k/a Talinge, Defendant,

Appellant. Appeals from the United States

District Court for the District of

Massachusetts [Hon. Richard G.

Stearns, U.S. District Judge ]

Nos. 97-2002, 97-2003, 97-2004.

United States Court of Appeals, First Circuit.

Heard Oct. 5, 1998.

Decided Dec. 7, 1998.

Rehearing and Suggestion for Rehearing En Banc Denied, Jan.20, 1999.

Michael P. Doolin for Miguel Rodrguez.

James B. Krasnoo, by appointment of the Court, with whom Richard Briansky and Law Offices of James Krasnoo, were on brief, for John Rosario.

Michael J. Liston, by appointment of the Court, with whom Carr & Liston, was on brief, for Hector Famania.

Demetra Lambros, Attorney, U.S. Department of Justice, with whom Donald K. Stern, United States Attorney, and George W. Vien, Assistant United States Attorney, were on brief, for United States of America.

Before TORRUELLA, Chief Judge, BOWNES, Senior Circuit Judge, and LYNCH, Circuit Judge.

TORRUELLA, Chief Judge.

Following a jury trial, appellants Miguel Rodrguez, John Rosario, and Hector Famania were convicted of conspiracy to distribute cocaine base, in violation of 21 U.S.C. § 846. Rodrguez was additionally convicted on three counts of possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1), and of engaging in a continuing criminal enterprise, in violation of 21 U.S.C. § 848. On appeal, the defendants raise numerous issues among which are the lack of sufficient evidence to convict and abuse of prosecutorial discretion. For the following reasons, we affirm the convictions and sentences.

BACKGROUND

We review the facts of a criminal case on appeal from a conviction in the light most favorable to the verdict. See United States v. Gonzalez-Maldonado, 115 F.3d 9, 12 (1st Cir.1997). We sketch the facts presented at trial, providing further details as they become relevant to the discussion.

This case concerns a crack cocaine distribution ring in Framingham, Massachusetts. Through a joint investigation conducted by the Drug Enforcement Administration ("DEA") and the Framingham police during 1994 and 1995, a drug-trafficking operation in the Framingham community known as "Beaver Park" came to light. At the helm of the operation was Miguel Rodrguez. Among his lieutenants were John Rosario and Hector Famania.

The operation worked in the following manner. An individual known as "Johnny" would cook powder cocaine into crack. Rosario and Famania would then cut, measure, and package the drugs at Rodrguez's direction. Typically, a prospective drug purchaser would contact Rodrguez to place an order. When the customer came to obtain her drugs, Rodrguez would direct her to one of his distributors--Famania, Rosario, Jose Villafane, Pedro De Jess, Luis Torres, and others.

Famania and Rosario acted as Rodrguez's lieutenants. In addition to cutting and packaging the crack for distribution, they served as liaisons between Rodrguez and would-be distributors. Both regularly sold crack in Beaver Park.

Famania sold Rodrguez-supplied crack out of his apartment. One customer, Juan Carvajal, visited Famania's apartment on numerous occasions throughout 1995. Carvajal witnessed Famania sell $20 bags of crack daily to various customers, and twice saw Rodrguez give Famania an ounce of crack for distribution. On two occasions, Famania supplied Carvajal with an ounce of crack.

Rosario also sold Rodrguez-supplied crack. Upon collecting payment from a prospective buyer, Rosario would spit a plastic bag containing the crack onto the ground, where it would be retrieved by the purchaser. ¹

In January 1995, Rodrguez subordinate Pedro De Jess made a crack sale to Angela Investigators also employed Alicia Ellerbee, one of Rodrguez's regular customers, to make controlled buys. On July 10, 1995, Ellerbee met Rodrguez at Beaver Park and placed an order for an ounce of crack. Later that day, at a pre-arranged place, Rodrguez drove up to Ellerbee. Upon giving him $900, Ellerbee was directed to the passenger seat of Rodrguez's car, where a baggie covered by a piece of paper had been placed. Ellerbee took the baggie and paper, which she subsequently handed over to the authorities. Inside the paper, a Boston Globe subscription card carrying the name and address of Famania, was a baggie of crack.

Aurelio--who, unbeknownst to him, was an undercover police officer. The ounce of crack was supplied by Rodrguez and delivered by De Jess to the officer in her vehicle. She paid $950 for the ounce of crack. A couple of weeks later, Officer Aurelio made another undercover buy from De Jess. This time, Aurelio paid De Jess $1000 for an ounce.

On July 27, 1995, Ellerbee again made a crack purchase from Rodrguez at the DEA's direction. After she ordered the crack from Rodrguez in the park, Rodrguez walked over to Jose Villafane. Villafane left, and Ellerbee gave Rodrguez $900. Villafane then returned and dropped a package of crack into Ellerbee's lap.

On September 13, 1995, the grand jury indicted Rodrguez, De Jess, and Villafane, charging all the defendants with conspiracy to distribute cocaine and violations of substantive drug offenses. On December 22, 1995, the grand jury returned a seven count superseding indictment. Count I charged Rodrguez, De Jess, Villafane, Rosario, Famania, Carvajal with conspiracy to distribute cocaine base. Count II charged Rodrguez and De Jess with possession of cocaine base with intent to distribute on January 26, 1995 and aiding and abetting. Count III charged De Jess with possession of cocaine base with intent to distribute on February 10, 1995. Count IV charged Rodrguez with possession of cocaine base with intent to distribute on July 10, 1995. Count V charged Rodrguez and Villafane with intent to distribute on July 27, 1995 and aiding and abetting. Count VI charged Rodrguez with engaging in a continuing criminal enterprise. Count VII sought the criminal forfeiture of Rodrguez's Suzuki Samurai and Nissan Maxima.

Carvajal, De Jess, and Villafane pled guilty and were sentenced to terms ranging from time served to sixty months. Rodrguez, Famania, and Rosario proceeded to trial, and were convicted on all counts. Rodrguez was sentenced to life imprisonment, Rosario to 262 months imprisonment, and Famania to 235 months imprisonment.

DISCUSSION

I. Continuing Criminal Enterprise Conviction

A conviction under 21 U.S.C. § 848 for engaging in a continuing criminal enterprise ("CCE") requires proof beyond a reasonable doubt that the defendant: (1) committed a felony drug offense; (2) as part of a continuing series of such violations; (3) in concert with five or more persons in relation to whom he acted as a supervisor, organizer, or manager; and (4) from which multiple operations he realized substantial income or other resources. United States v. Hahn, 17 F.3d 502, 506 (1st Cir.1994). In challenging his conviction, Rodrguez attacks the sufficiency of the evidence on the latter two elements. Neither contention has merit.

One who challenges the sufficiency of the evidence bears a heavy burden: he must show that no rational jury could have found him guilty beyond a reasonable doubt. See United States v. Fulmer, 108 F.3d 1486, 1492 (1st Cir.1997). We review the sufficiency of the evidence as a whole, in a light most favorable to the verdict, taking into consideration all reasonable inferences. See United States v. Scantleberry-Frank, 158 F.3d 612, 616 (1st Cir.1998). We resolve all credibility issues in favor of the verdict. See id. The evidence may be entirely circumstantial, and need not exclude every hypothesis of innocence; that is, the factfinder may decide among reasonable interpretations of the evidence. See id. at 616 (citation omitted).

A. Organizer, Supervisor or Manager under CCE

To be an organizer, supervisor or manager within the meaning of the CCE, the defendant "need not be the dominant organizer or manager of the enterprise; he need only occupy some managerial position with respect to five or more persons." United States v. Hahn, 17 F.3d 502, 506 n. 4 (1st Cir.1994). Further, the jurors are not required to agree on the particular identities of the subordinates, but must only agree that there were at least five doing his bidding. See United States v. David, 940 F.2d 722, 731 (1st Cir.1991).

Rodrguez concedes that he organized, supervised or managed four individuals: Rosario, Famania, Villafane, and De Jess. See Def. Br. at 31. Contrary to his claim, the government has presented sufficient evidence as to a fifth individual.

De Jess, testified that, like him, "Peto" also worked for Rodrguez. See Tr. 10/17 at 11-12. The relevant testimony is as follows:

Q: Did you ever see Miguel Rodrguez give drugs to Peto?

A: (Through the Interpreter) Yes.

Q: Where did you see those transactions take place?

A: (Through the Interpreter) At the house, Peto's.

...

Q: Did you see what Peto did with the money he made from the drugs?

A: (Through the Interpreter) He would also give it to Miguel.

Tr. 10/17 at 12-13.

The jury was entitled to find that "Peto" was within Rodrguez's sphere of influence and subject to his supervision in the course of his drug trafficking activities.

B. Substantial Income from the Enterprise

The "substantial income" requirement may be met either by direct evidence of the revenues realized and resources accumulated by the defendant, or by such circumstantial evidence as the defendant's position in the criminal organization, and the volume of drugs handled by the organization. See Hahn, 17 F.3d at 507. The substantial income test establishes no fixed minimum, but is intended to exclude trivial amounts derived from occasional drug sales. See id. (citation omitted).

There is...