U.S. v. Sanchez

• Citation: 917 F.2d 607
• Decision Date: 08 March 1990
• Docket Number: Nos. 89-1600,s. 89-1600
• Parties: UNITED STATES of America, Appellee, v. Edwin SANCHEZ, Defendant, Appellant. UNITED STATES of America, Appellee, v. Gregorio ROSARIO, Defendant, Appellant. UNITED STATES of America, Appellee, v. Rafael SANCHEZ, Defendant, Appellant. to 89-1602 and 90-1058. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 607

917 F.2d 607

UNITED STATES of America, Appellee, v. Edwin SANCHEZ, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Gregorio ROSARIO, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Rafael SANCHEZ, Defendant, Appellant.

Nos. 89-1600 to 89-1602 and 90-1058.

United States Court of Appeals First Circuit.

Heard March 8, 1990.

Decided Oct. 24, 1990.

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

Thomas Kerner with whom Robert J. Wheeler, Jr., and McBride, Wheeler & Widegren, Boston, Mass., were on brief, for defendant, appellant Edwin Sanchez.

Gregorio Rosario, on brief, pro se.

Brien T. O'Connor, Asst. U.S. Atty., with whom Wayne A. Budd, U.S. Atty., Boston, Mass., was on consolidated brief, for U.S.

Before CAMPBELL, Chief Judge, COFFIN, Senior Circuit Judge, and CYR, Circuit Judge.

CYR, Circuit Judge.

Defendants Gregorio Rosario and Edwin and Rafael Sanchez appeal their convictions under 21 U.S.C. Secs. 841(a) and 846 for conspiring to possess, and possessing, twelve kilograms of cocaine for distribution. The Sanchezes also appeal the 360-month prison sentences imposed under the Sentencing Guidelines. We affirm.

I. BACKGROUND

The evidence revealed that Rafael Sanchez and Albert Lagos, a government informant and its key witness, met on several occasions during July and August, 1988, at the Rafael Sanchez place of business in Somerville, Massachusetts, and discussed where Lagos could obtain cocaine. On August 10, 1988, Rafael contacted Lagos and arranged a meeting at which Rafael informed Lagos that a friend had arrived with a shipment of thirty kilograms of cocaine. The two agreed to meet again the next day. At their August 11 meeting, Rafael told Lagos that the cocaine was "already over here." Then Rafael made a phone call to an unidentified individual. Rafael thereupon told Lagos that the price would be $23,500 per kilogram. Another meeting was arranged for later in the day, at which Rafael introduced his brother, Edwin Sanchez, to Lagos. Thereafter, the three rode around in a car, discussed the price and purity of the cocaine, and agreed to finalize the exchange that evening.

That evening, Edwin Sanchez met Lagos, and the two rode in Lagos's car to Gregorio Rosario's apartment in Everett. Earlier, in anticipation of the cocaine exchange, Lagos had put a briefcase, containing a phone book, in the trunk of his car. Massachusetts State Trooper Joseph Brooks, accompanied by other law enforcement officers, followed Lagos and Edwin Sanchez to the Rosario apartment. Once inside the apartment, Edwin and Rosario handed Lagos a suitcase containing twelve kilograms of cocaine. Lagos and Rosario left the apartment with the suitcase and returned to the Lagos car.

The police were watching as Rosario removed the briefcase containing the phone book from the trunk of the Lagos car and replaced it with the cocaine-laden suitcase. Approximately five minutes later the Massachusetts State Police forcibly entered the Rosario apartment, where they arrested Edwin Sanchez and Rosario and seized the briefcase, which had been smashed open. Subsequent analysis revealed that the substance inside the suitcase consisted of 12,062 grams of 95% pure cocaine. Rafael Sanchez was arrested on the following day.

II. DISCUSSION

A. Count I

Edwin and Rafael Sanchez challenge the sufficiency of the evidence to support their conspiracy convictions under count I.

"The gist of conspiracy is an agreement to disobey or to disregard the law," United States v. Drougas, 748 F.2d 8, 15 (1st Cir.1984), which the government may prove by direct and circumstantial evidence, United States v. Rivera-Santiago, 872 F.2d 1073, 1079 (1st Cir.1989). The evidence must establish that the defendants intended to agree and that they intended to commit the substantive criminal offense which was the object of their unlawful agreement. Id.; accord United States v. Flaherty, 668 F.2d 566, 580 (1st Cir.1981). Due to the clandestine nature of criminal conspiracies, the law recognizes that the illegal agreement may be either "express or tacit" and that a " 'common purpose and plan may be inferred from a development and collocation of circumstances.' " Rivera-Santiago, 872 F.2d at 1079 (quoting Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942)); see also Drougas, 748 F.2d at 15. The government need not establish that the defendants knew or agreed upon every detail of the conspiracy. "All that is required is to show 'the essential nature of the plan and their connections with it.' " Rivera-Santiago, 872 F.2d at 1079 (quoting Blumenthal v. United States, 332 U.S. 539, 557, 68 S.Ct. 248, 256, 92 L.Ed. 154 (1947)); see also United States v. Hinds, 856 F.2d 438, 443 (1st Cir.1988).

Without weighing witness credibility, United States v. Serrano, 870 F.2d 1, 5 (1st Cir.1989) (citing Burks v. United States, 437 U.S. 1, 16, 98 S.Ct. 2141, 2149, 57 L.Ed.2d 1 (1978)), we assess the sufficiency of the evidence, including all reasonable inferences, in the light most favorable to the government, United States v. McNatt, 813 F.2d 499, 502 (1st Cir.1987), with a view to whether a rational jury could have found the defendant guilty beyond a reasonable doubt. Thus viewed, there was sufficient evidence to support the conspiracy convictions against Edwin and Rafael Sanchez.

Rafael Sanchez advised Lagos early on that a friend had arrived with a large shipment of cocaine which would be available for purchase. Rafael introduced Lagos to Edwin and discussed the price and purity of the cocaine. Finally, Rafael arranged the meeting between Edwin and Lagos on the evening the cocaine exchange took place. Although Rafael was not present during the actual exchange, a jury might infer, altogether reasonably, that Rafael intended to participate in the conspiracy to acquire cocaine for distribution, as evidenced by his instrumental role in locating the cocaine and in bringing the other participants together.

As for Edwin Sanchez, the evidence established that he and brother Rafael negotiated the price and quality of the cocaine with Lagos. Further, Edwin Sanchez and Rosario personally delivered the cocaine to Lagos, expecting to receive in return, not a briefcase containing a phone book, but more than $280,000 in cash. Therefore, the jury reasonably concluded that Edwin Sanchez intended to participate in the conspiracy to possess cocaine for distribution.

B. Count II

Rafael Sanchez appeals from the denial of his motion for judgment of acquittal under count II, which charged all three defendants with the substantive offense of possessing cocaine for distribution. Rafael argues that the district court committed reversible error by instructing the jury on "aiding and abetting" and on vicarious criminal liability under Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), inasmuch as count II did not provide fair notice that he was being charged under either theory.

(i) "Aiding and Abetting"

Notwithstanding the fact that count II did not charge aiding and abetting, or mention 18 U.S.C. Sec. 2, the jury was instructed that the defendants could be convicted if they aided and abetted the substantive offense of possessing cocaine with intent to distribute. ¹ Rafael Sanchez contends that an "aiding and abetting" instruction in these circumstances violated his sixth amendment right to "be informed of the nature and cause of the accusation" against him.

The contention fails, essentially because "aiding and abetting" is not a separate offense. United States v. Thirion, 813 F.2d 146, 151 (8th Cir.1987); United States v. McKnight, 799 F.2d 443, 445 (8th Cir.1986); see also United States v. Moya-Gomez, 860 F.2d 706, 756 (7th Cir.1988). Title 18 United States Code, section 2, "simply makes those who aid and abet in a crime punishable as principals." Thirion, 813 F.2d at 151 (quoting McKnight, 799 F.2d at 445). Aiding and abetting is "an alternative charge in every ... count, whether explicit or implicit." McKnight, 799 F.2d at 445 (quoting United States v. Walker, 621 F.2d 163, 166 (5th Cir.1980)). Accord United States v. Bullock, 451 F.2d 884, 888 (5th Cir.1971); United States v. Lester, 363 F.2d 68, 72 (6th Cir.1966). A defendant can be convicted of aiding and abetting the commission of a substantive offense "upon a proper demonstration of proof so long as no unfair surprise results." United States v. Galiffa, 734 F.2d 306, 312 (7th Cir.1984); accord United States v. Tucker, 552 F.2d 202, 204 (7th Cir.1977).

All courts of appeals which have considered the matter have concluded that an "aiding and abetting" instruction may be given even though the indictment neither alleges aiding and abetting nor adverts to 18 U.S.C. Sec. 2. ² We, too, now hold that the government may rely on an "aiding and abetting" theory, although the indictment neither alleges nor adverts to it, except on a showing of unfair surprise. ³

Rafael Sanchez and Gregorio Rosario were charged with conspiracy and with the substantive offense of possessing cocaine for distribution. The evidence adduced on those charges established that these defendants aided and abetted the substantive offense charged in count II by assisting the sale of cocaine to Lagos. Although the indictment did not allude to "aiding and abetting," it placed the defendants on notice of the essential nature of the charges against them under count II. Moreover, there was no unfair surprise, as the government, prior to trial, submitted a proposed jury instruction on "aiding and abetting."

(ii) Pinkerton Charge

Rafael Sanchez similarly claims that the jury should not have been given a Pinkerton instruction.

Under the Pinkerton theory a conspirator may be subjected to vicarious criminal liability for a substantive crime committed by a co-conspirator in effecting their conspiracy. We have held that the...