U.S. v. Ruiz

• Decision Date: 04 April 1990
• Docket Number: No. 89-1815,89-1815
• Citation: 905 F.2d 499
• Parties: UNITED STATES of America, Appellee, v. Fausto D. RUIZ, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 499

905 F.2d 499

UNITED STATES of America, Appellee, v. Fausto D. RUIZ, Defendant, Appellant.

No. 89-1815.

United States Court of Appeals,

First Circuit.

Heard April 4, 1990.

Decided June 5, 1990.

John C. McBride, with whom McBride, Wheeler & Widegren, Boston, Mass., was on brief, for appellant.

Michael Kendall, Asst. U.S. Atty., with whom Wayne A. Budd, U.S. Atty., Boston, Mass., was on brief, for the U.S.

Before TORRUELLA, SELYA and CYR, Circuit Judges.

SELYA, Circuit Judge.

Defendant-appellant Fausto D. Ruiz appeals his conviction and sentence on racketeering and drug trafficking charges, ¹ hawking a gusher of reasons for reversal. Finding a dry hole, we affirm.

I. BACKGROUND

We set forth the evidence in the light most flattering to the prosecution, as the law and the present posture of the case demand. See, e.g., United States v. Ingraham, 832 F.2d 229, 230 (1st Cir.1987), cert. denied, 486 U.S. 1009, 108 S.Ct. 1738, 100 L.Ed.2d 202 (1988).

Ruiz was a patrolman in the Lawrence, Massachusetts police department (LPD) during the period 1980-88. His codefendant, Daniel Fillipon, frequently served as his partner. ² Ruiz, and to a lesser extent Fillipon, obtained gram-sized quantities of cocaine from Lazaro Fernandez, Victor Graciano, Olegario Marte, Jose Rodriguez and their confederates (including Miguel Abreu, Vincente Paulino, and Neo Marte). In return, the officers allowed the drug traffickers to ply their nefarious trade unmolested and provided them with confidential police information and services.

The evidence clearly established that Ruiz, by virtue of his LPD affiliation, was useful to the cocaine dealers in various ways. We offer three representative samples of the available proof and a catchall containing an assortment of other items.

1. Registry Data. Employing the LPD's connections with the state Registry of Motor Vehicles (RMV) to the behoof of Graciano and Paulino, Ruiz determined that a particular individual (Cepero) was likely an undercover narcotics agent. He also obtained information from the RMV for Fernandez and received personal use quantities of cocaine (PUQs) in return. ³ Two witnesses testified that the general public did not have access to RMV information of the sort which appellant procured for his criminal confederates.

2. The Search Warrant Tip. Through confidential information available within the LPD, Ruiz learned of an impending raid on Neo Marte's apartment. Alerted by appellant, Marte departed the premises hastily, removing a large quantity of narcotics. When the police executed the search warrant, they found that their pigeon had flown the coop. No contraband remained. Marte gave Ruiz three and one-half grams of cocaine in exchange for the tip.

3. Escort Services. On one occasion, Ruiz and Fillipon used a marked police cruiser to escort a dealer who was delivering what Ruiz had described as a "large amount" of cocaine. Ruiz also told Fillipon about a time when he accompanied a dealer to New York, obtained a kilogram of cocaine, and brought it back to Lawrence.

4. Potpourri. Ruiz furnished Fernandez, Paulino and Abreu with ammunition from LPD stock; warned them of outstanding arrest warrants; drove Graciano to pick up cocaine and then to meet a customer; and informed his associates of a secret departmental decision to step up narcotics enforcement.

Just as Ruiz's labors on behalf of his criminal comrades were integrated with his police work, so too the rewards of Ruiz's complicity were intermixed with his law enforcement role. For example, Ruiz picked up and used cocaine while on duty, in uniform and carrying a handgun. On several occasions, dealers delivered cocaine to him within a marked police cruiser or inside LPD headquarters.

Notwithstanding this sordid backdrop, appellant mounts several arguments for relief. We have carefully considered the entire asseverational array. Save only for two broad topics, discussed infra, we reject his contentions without extended comment. ⁴

II. EVIDENTIARY SUFFICIENCY

Ruiz appeals the district court's denial of his motion for judgment of acquittal on counts 1, 2 and 6, maintaining that "the evidence is insufficient to sustain a conviction of such ... offenses." Fed.R.Crim.P. 29. In this context, a reviewing court is obliged to assess "the evidence in its totality, taken in the light most flattering to the government, together with all legitimate inferences to be drawn therefrom, in an effort to ascertain whether a rational trier of the facts could have found the appellant guilty beyond any reasonable doubt." United States v. Tierney, 760 F.2d 382, 384 (1st Cir.), cert. denied, 474 U.S. 843, 106 S.Ct. 131, 88 L.Ed.2d 108 (1985); see also United States v. Boylan, 898 F.2d 230, 238 (1st Cir.1990); United States v. Jimenez-Perez, 869 F.2d 9, 10 (1st Cir.1989).

A. Racketeering and RICO Conspiracy.

We need not differentiate between the first two counts for purposes of appellant's sufficiency challenge. In this case, there is a considerable overlap. Count 2 is premised on 18 U.S.C. Sec. 1962(c), which makes it "unlawful for any person employed by or associated with any enterprise ... affect[ing] interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity...." To prove such a substantive RICO violation, the prosecution must show (1) conduct (2) of an "enterprise" (3) through a "pattern" (4) of "racketeering activity," which in turn necessitates (5) the commission of two or more predicate crimes. See Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, 105 S.Ct. 3275, 3285, 87 L.Ed.2d 346 (1985).

On the other hand, Count 1 is premised on 18 U.S.C. Sec. 1962(d), which renders it "unlawful for any person to conspire to violate" certain provisions of RICO, including section 1962(c). To convict for such a RICO conspiracy, the prosecution must prove (1) that a common plan existed (2) to conduct an "enterprise" through a "pattern" of "racketeering activity," that (3) the defendant knowingly joined the venture, and (4) embarked upon, or agreed to carry it out, by committing, or agreeing to the commission of, two or more predicate crimes in connection with his enterprise participation. See Boylan, 898 F.2d at 241; United States v. Torres Lopez, 851 F.2d 520, 528 (1st Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 1144, 103 L.Ed.2d 204 (1989); United States v. Angiulo, 847 F.2d 956, 964 (1st Cir.), cert. denied, 488 U.S. 928, 109 S.Ct. 314, 102 L.Ed.2d 332 (1988).

Inasmuch as the conspiracy charge in this case posits the commission of the very racketeering activity which count 2 charges substantively, the proof required to uphold the guilty verdict on Count 1 would perforce suffice to uphold the guilty verdict on Count 2. ⁵ We concentrate, therefore, on Ruiz's challenge to Count 1.

1. Applicability. Ruiz begins by arguing that Congress did not intend RICO to reach the type of conduct which occurred here. The statute, he exhorts, was enacted as an antidote to certain organized crime activities and was never intended to encompass acts such as Ruiz carried out to support his drug habit. The plea is bootless; the Court has explicitly rejected the notion that any such limiting principle constrains RICO's scope. See H.J. Inc. v. Northwestern Bell Tel. Co., --- U.S. ----, 109 S.Ct. 2893, 2905, 106 L.Ed.2d 195 (1989) ("Congress ... chose to enact a more general statute ... not limited in application to organized crime."); Sedima, 473 U.S. at 495, 105 S.Ct. at 3284 ("Section 1962 [was directed toward] 'any person'--not just mobsters"). RICO prosecutions need not have an "organized crime" nexus.

2. Pattern of Racketeering Activity. Defendant's participation in the LPD is admitted. Moreover, the parties stipulated that the LPD was an "enterprise" the conduct of which affected interstate commerce. Thus, we consider the alleged "pattern of racketeering activity."

Under RICO, proof of a pattern "requires at least two acts of racketeering activity," 18 U.S.C. Sec. 1961(5), commonly described as "predicate acts," "predicate crimes," or simply "predicates." The jury convicted Ruiz on counts 7-10. It cannot be gainsaid that these four convictions, not challenged on appeal, each constituted a predicate act in the basic RICO sense. See 18 U.S.C. Sec. 1961(1)(D) (defining "racketeering activity" to include, inter alia, numerous drug offenses). In addition, each time Ruiz accepted cocaine as payment for forbearance (i.e., not arresting a dealer), he violated M.G.L. ch. 268A, Sec. 2(b). Each such violation was itself capable of qualifying as a predicate act. See 18 U.S.C. Sec. 1961(1)(A). Ruiz nonetheless asserts that these crimes do not show racketeering activity because the necessary concatenation is lacking between them and the enterprise (the LPD). The assertion will not withstand the most cursory scrutiny.

Ruiz's acquisition of cocaine, and his quid pro quo conduct, were inextricably intertwined with his authority and activities as an employee of the LPD. His ability to intimidate dealers with the power of arrest, his access to RMV data and inside information anent warrants, his assistance in transporting cocaine, and his ability to supply ammunition were all made possible through, or facilitated by, his employment. In fine, defendant's illegal activities were clearly helped along by the authority vested in him as a police officer and by the reactions (fear and timorousness in some instances) which a police officer, uniquely, has the ability to engender in others by virtue of his position. The necessary nexus between a racketeering enterprise and predicate crimes can be based on circumstantial as well as direct evidence and can be guided by reasonable inference. In this situation, there was ample room for the jury to find a snug fit between defendant's acts and the enterprise.

Forging a link between appellant's criminality and his...