U.S.A v. Rosado-pÉrez
| Decision Date | 14 May 2010 |
| Docket Number | 08-2181,08-2166.,08-2183,No. 08-1900,08-2164,08-1900 |
| Citation | 605 F.3d 48 |
| Parties | UNITED STATES of America, Appellee,v.Luis ROSADO-PÉREZ, Defendant, Appellant.United States of America, Appellee,v.Marcos Rivera-Perez, Defendant, Appellant.United States of America, Appellee,v.Emanuel Rivera Maldonado, Defendant, Appellant.United States of America, Appellee,v.Juan Carlos Torres-Rodriguez, Defendant, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
COPYRIGHT MATERIAL OMITTED
Juan F. Matos de Juan for appellant Luis Rosado-Pérez.
Enrique Vélez-Rodríguez for appellant Marcos Rivera-Perez.
Anita Hill Adames for appellant Emanuel Rivera Maldonado.
Ramon Garcia-Garcia for appellant Juan Carlos Torres-Rodriguez.
Timothy R. Henwood, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Velez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Luke Cass, Assistant United States Attorney, were on brief for appellee.
Before LYNCH, Chief Judge, SELYA and LIPEZ, Circuit Judges.
The four appealing defendants were convicted for their roles in a conspiracy to distribute cocaine, crack cocaine, and marijuana in Barriada San Miguel, known as El Cerro, in Naranjito, Puerto Rico, from 2005 to 2007. Three were convicted after a jury trial, Marcos Rivera-Perez, Juan Carlos Torres-Rodriguez, and Emanuel Rivera Maldonado; and one by a guilty plea, Luis Rosado-Pérez. Rivera Maldonado was a corrupt municipal police officer who aided the conspiracy.
Rivera-Perez, Torres-Rodriguez, and Rivera Maldonado each challenge the sufficiency of the evidence for their convictions. Rivera-Perez and Torres-Rodriguez also argue that the government improperly presented an overview witness. We affirm. The evidence sufficed, and a government agent witness did not give improper overview testimony. He appropriately testified from personal knowledge and explained drug activity and coded language to the jury, based on his experience.
Rosado-Pérez argues, for the first time on appeal, that he did not understand the terms of his plea and that the district court did not ascertain that a sufficient factual basis supported his plea. On plain error review, we affirm, finding no error at all.
The structure of the conspiracy and the appellants' roles in it are described below as a rational jury could have found; further facts relevant to the claims on appeal follow.
Between 2005 and 2007 Manuel Chevres-Motta, not a party to these appeals, led an organization that distributed cocaine, crack cocaine, heroin, and marijuana in the El Cerro ward of Naranjito. Each of the appellants worked for Chevres-Motta, in various roles.
Chevres-Motta's drug organization sold only to known or vouched-for clients, usually from El Cerro. El Cerro's geography, which sets it apart from the rest of Naranjito, also limited the scope of this organization's drug trade. El Cerro rests atop a hill, and only one road, which cuts through El Cerro, connects it to Naranjito.
El Cerro “runners” supplied street dealers with drugs and ensured the dealers gave correct money to Chevres-Motta. “Sellers” then sold those drugs at regular drug points in El Cerro, including a basketball court and a nearby stairwell. Sellers sold small packets of drugs out of black fanny packs, a characteristic of the El Cerro organization. “Escorts,” usually local drug users, brought clients to drug points and vouched for them.
Luis Rosado-Pérez supervised the cocaine trade for Chevres-Motta. Marcos Rivera-Perez was a seller. Juan Carlos Torres-Rodriguez “cooked” cocaine hydrochloride into crack cocaine. And Rivera Maldonado, a Naranjito municipal police officer, provided information to the group.
The conspiracy first came to the attention of law enforcement during a separate drug and money laundering investigation. A confidential informant in that case set up a meeting to sell drugs; Rolando Motta-Morales, a member of the conspiracy in this case, came to that drug meeting. For two months in 2006, federal officials wiretapped Motta-Morales's phone and learned that Motta-Morales cooked crack cocaine for his cousin, Chevres-Motta. They also learned that Torres-Rodriguez was Motta-Morales's neighbor and cooked crack with Motta-Morales, and that Rivera Maldonado was Motta-Morales's cousin and brother-in-law, as well as a corrupt officer.
Federal officers investigated the El Cerro drug organization for almost two years. Investigators conducted personal and video surveillance, wiretapped phones, completed about thirteen controlled drug buys through an undercover police officer buyer, and used a confidential informant from El Cerro.
On September 26, 2007, a federal grand jury handed up a twenty-eight-count indictment against thirty individuals, including the four on appeal in this case, for their participation in the conspiracy. The defendants in this case were charged in count one with conspiracy to possess with intent to distribute controlled substances, 21 U.S.C. § 846, and in count twenty-eight with criminal forfeiture id. §§ 853, 881.1
On May 2, 2008, a jury convicted Rivera-Perez, the seller, Torres-Rodriguez, the crack cooker, and Rivera Maldonado, the corrupt officer, on the conspiracy count, count one. The jury also imposed criminal forfeiture on Rivera-Perez and Torres-Rodriguez. On August 11, 2008, the district court sentenced Rivera-Perez and Torres-Rodriguez to 120 months in prison and Rivera Maldonado to 48 months in prison. It also sentenced all three defendants to five years' supervised release and a $100 special assessment.
Earlier, on March 14, 2008, Luis Rosado-Pérez, the supervisor of the cocaine trade, had pled guilty to the conspiracy and forfeiture counts, specifically to conspiring to distribute between 1.5 and 4.5 kilograms of crack cocaine. That quantity, combined with Rosado-Pérez's criminal history category, gave him a base offense level of 33 after a three-level downward departure for acceptance of responsibility. Rosado-Pérez's sentencing guidelines range was 135 to 168 months. The government, per the plea agreement, recommended a sentence of 135 months in prison, which the court accepted and imposed.
Three defendants argue that the evidence of intent and agreement to participate in the conspiracy was insufficient for a conviction. Rivera-Perez and Torres-Rodriguez also argue that the court erred in admitting the testimony of Federal Bureau of Investigation Special Agent Regino Chavez, alleging Chavez gave improper “overview” testimony. We reject both claims.
We review the sufficiency of the evidence for a conviction de novo. United States v. Azubike, 564 F.3d 59, 64 (1st Cir.2009). We take the evidence and draw all reasonable inferences in the light most favorable to the prosecution. Id. If a reasonable jury could find the defendants guilty beyond a reasonable doubt of all elements of the charged offense, we must affirm the conviction. Id.
On count one, the prosecution had to prove, through direct or circumstantial evidence, beyond a reasonable doubt that “each defendant knowingly and voluntarily agreed with others” to distribute drugs. United States v. Rivera Calderon, 578 F.3d 78, 88 (1st Cir.2009). Evidence of a knowing agreement could include evidence that the defendants took actions that furthered the conspiracy's goals. United States v. García-Pastrana, 584 F.3d 351, 377 (1st Cir.2009).
Marcos Rivera-Perez admits on appeal, as he conceded while testifying at trial, that he sold drugs in El Cerro, but he says the evidence did not show he sold drugs for the Chevres-Motta conspiracy.
Sufficient evidence connected Rivera-Perez to the Chevres-Motta conspiracy.
Both a lead investigator in the case and a confidential informant identified him and testified that he sold drugs in El Cerro. Videos showed him selling drugs from black fanny packs, as the conspiracy's other sellers did. Rivera-Perez was shown selling drugs from the stairwell near the basketball court, a regular drug point for this conspiracy. Videos showed Rivera-Perez selling to, interacting with, and standing nearby known conspiracy members and clients.
A jury could easily reject the idea that Chevres-Motta and his coconspirators would permit a competing drug dealer to sell in the heart of their small, isolated neighborhood at one of their usual drug points. A reasonable juror instead could conclude that Rivera-Perez sold drugs for this conspiracy and therefore agreed and intended to further its aims.
Torres-Rodriguez, the crack cooker, who lived twenty minutes from El Cerro, also argues that the evidence showed at most he cooked crack with his neighbor, Motta-Morales, but not for the rest of the El Cerro conspiracy led by Chevres-Motta.
The evidence was sufficient. In several phone calls, played at trial, Torres-Rodriguez and Motta-Morales discussed cooking crack together. The evidence supported the jury's conclusion that they were collaborating to cook crack for Chevres-Motta's El Cerro organization for two reasons.
First, the jury heard many phone calls in which Motta-Morales discussed his work as a cooker with a number of conspiracy members over a period of months. In particular, Motta-Morales discussed his work with the conspiracy leader, Chevres-Motta, who was Motta-Morales's cousin. He reported his progress cooking crack, discussed how to buy more cocaine to cook, and planned how to deliver drugs to Chevres-Motta and receive payment.
Second, many calls played before the jury between Torres-Rodriguez and Motta-Morales supported the inference that they were working for Chevres-Motta, since they referenced Chevres-Motta several times by his street name. Motta-Morales reported to Torres-Rodriguez...
To continue reading
Request your trial
-
United States v. Brown
...Elaine objected to Monier testifying as an overview witness, and thus we review for abuse of discretion. See United States v. Rosado–Pérez, 605 F.3d 48, 54 (1st Cir.2010). “Even if there was an error, however, we affirm if it was harmless.” Id. Generally speaking, a so-called “overview witn......
-
United States v. Valdivia
...investigation in which he did not actually participate—we have repeatedly admonished the use of such testimony. United States v. Rosado–Pérez, 605 F.3d 48, 55 (1st Cir.2010). Specifically, we have cautioned that “the evidence promised by the overview witness [might] never materialize [ ],” ......
-
United States v. Laureano-Pérez
...the investigation the witness did not participate in, before the government has presented supporting evidence.” United States v. Rosado–Pérez, 605 F.3d 48, 55 (1st Cir.2010). We have repeatedly condemned the use of such tactics, finding it “inherently problematic” for a number of reasons. U......
-
United States v. Lacerda
...opinion about the strength of that evidence or the credibility of any potential witnesses. Id . at 61 ; see also United States v. Rosado-Perez , 605 F.3d 48, 55 (1st Cir. 2010) (cautioning, before government has presented supporting evidence, against presenting an overview of criminal inves......
-
Witness
...not place the defendant in the same location as the computer when her online conversations took place. United States v. Rosado-Perez , 605 F.3d 48 (1st Cir. 2010). Defendants’ convictions for their roles in a conspiracy to distribute cocaine, crack cocaine, and marijuana were affirmed becau......