U.S. v. Torres, 88-1503

• Decision Date: 09 December 1988
• Docket Number: No. 88-1503,88-1503
• Citation: 862 F.2d 1025
• Parties: UNITED STATES of America v. Antonio TORRES, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 1025

862 F.2d 1025

UNITED STATES of America v. Antonio TORRES, Appellant.

No. 88-1503.

United States Court of Appeals,

Third Circuit.

Argued Nov. 1, 1988.

Decided Dec. 9, 1988.

Stanley Weinberg (argued), Philadelphia, Pa., for appellant.

Frank R. Costello, Jr. (argued), Walter S. Batty, Jr., Chief of Appeals, Linwood C. Wright, Asst. U.S. Attys., Edwards S.G. Dennis, Jr., U.S. Atty., Philadelphia, Pa., for appellee.

Before GIBBONS, Chief Judge, and BECKER and WEIS, Circuit Judges.

OPINION OF THE COURT

WEIS, Circuit Judge.

We decide in this appeal that a conspiracy to distribute drugs may be a predicate offense to a statute providing an enhanced sentence for the use of a firearm during a "drug trafficking" offense. We also conclude that a city policeman assigned to the United States Drug Enforcement Agency may be a de facto agent within the scope of a statute prohibiting assaults on federal officials. Accordingly, we will affirm the convictions on these offenses, but because of a duplicitive sentence on two counts we will remand for the entry of a general sentence on those charges.

Defendant was convicted on four counts of an indictment charging in count 1, conspiracy to distribute cocaine, in violation of 21 U.S.C. Sec. 846; count 3, assaulting a federal officer, in violation of 18 U.S.C. Sec. 111; count 4, using a firearm during a drug trafficking crime, in violation of 18 U.S.C. Sec. 924(c)(1); and count 5, using a firearm in connection with an assault on a federal officer, in violation of 18 U.S.C. Sec. 924(c)(1). The district court imposed concurrent sentences of three years imprisonment on counts 1 and 3, and consecutive five-year terms on counts 4 and 5.

The defendant's convictions were based on events that occurred on October 16, 1987 at the intersection of Third and Ontario Streets in Philadelphia. While driving through the area, undercover police officers Ronald Abel and Jorge Cruz noticed the suspicious behavior of two men, Neris and DeJesus, standing on the street corner. The officers circled the block and parked their car near the intersection so that they had an unobstructed view of the two suspects' activities.

For some time, the policemen watched the two men take small packets from an aerosol can and sell them to certain passing motorists. The officers then drove into the intersection, stopping their car crosswise against the southwest corner. They inspected the can and, finding that it contained glassine packets of a white substance, arrested and handcuffed Neris and DeJesus. Officer Abel returned to the car to radio for assistance while Officer Cruz remained with the two suspects.

At this moment, defendant--driving north on Third Street--brought his car to a screeching stop at the intersection and, taking a carbine from the front seat, pointed it at Officer Abel as the policeman was radioing in the arrest report. Noticing the defendant's actions, Officer Cruz drew his revolver and shouted, "Police; Drop it or I'll shoot." Defendant lowered the carbine and surrendered it to Officer Cruz, who took him to where the two suspects were standing.

Defendant stretched out prone on the sidewalk as directed by the officers. After a few minutes, defendant attempted to rise and, as Officer Cruz forced him back down, defendant struck his head on the sidewalk, provoking DeJesus to exclaim: "Tony, stop. It won't help any." When defendant was searched, $942 in currency was found in his pocket.

DeJesus and Neris both pleaded guilty to narcotics charges, but defendant maintained his innocence. At his lawyer's request, defendant was examined before trial by a psychiatrist who reported that defendant asserted he was intoxicated at the time of his arrest. Defendant asked the court for, but was refused, a continuance to permit further mental evaluation by a psychologist.

At trial Officer Abel testified that he had been employed by the Philadelphia Police Department since 1981, and in June 1987 had been assigned to the Federal Drug Enforcement Administration Task Force. He stated that, though he remained a city policeman, he took an oath as a DEA Task Force member. DeJesus and Neris did not testify, nor did defendant or his psychiatrist.

After the trial concluded, defendant was evaluated by a psychologist. On the basis of the psychologist's comments about the defendant's alleged intoxication, defendant moved for a new trial. The district court denied the motion, ruling that the matters the psychologist had recounted were not newly discovered evidence.

On appeal defendant presses a number of theories for reversal. First, he contends that there was insufficient evidence to prove that he participated in the DeJesus/Neris conspiracy. Second, he asserts that the government's evidence that Officer Abel was a federal official at the time of the assault was inadequate. Third, he argues that conspiracy is not a predicate offense for enhanced punishment under section 924(c)(1). Fourth, he insists that his consecutive five-year sentences on the two section 924(c)(1) counts are duplicative, and that only one such term of imprisonment is permissible. ¹

The prosecution concedes that only one firearm incident occurred here and, therefore, only one enhanced punishment may be imposed. The government agrees that the case must be remanded for resentencing on counts 4 and 5.

I. COUNT 1--CONSPIRACY

Defendant insists that the government has failed to introduce any direct evidence of his involvement with the DeJesus/Neris drug distribution. He argues that the government's evidence against him on the conspiracy charge established only that he kept bad company and was found in the vicinity of criminal activity, conduct which we previously have held to be insufficient to prove a conspiracy. See United States v. Wexler, 838 F.2d 88, 91 (3d Cir.1988); United States v. Coleman, 811 F.2d 804, 808 (3d Cir.1987); United States v. Cooper, 567 F.2d 252, 255 (3d Cir.1977). We find these precedents clearly distinguishable. As is true in most conspiracy cases, our holdings were heavily dependent on the factual backgrounds; in each of the cited decisions, the trial evidence failed to support an essential element of the crime.

Where a jury returns a verdict of guilty, we review the defendant's sufficiency of the evidence challenge by viewing the proof in the light most favorable to the government. Hamling v. United States, 418 U.S. 87, 124, 94 S.Ct. 2887, 2911, 41 L.Ed.2d 590 (1974); Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). Although the elements of a conspiracy must be established beyond a reasonable doubt, United States v. Johnstone, 856 F.2d 539, 545 (3d Cir.1988), the prosecution can bear this burden entirely through circumstantial evidence, Wexler, 838 F.2d at 90; United States v. Scanzello, 832 F.2d 18, 20 (3d Cir.1987). The existence of an illegal agreement may be inferred from interrelated facts and circumstances which lead reasonably and logically to the conclusion that the activities of the participants would not have occurred as they did absent a preconceived scheme or common understanding. United States v. Kapp, 781 F.2d 1008, 1010 (3d Cir.), cert. denied, 479 U.S. 821, 107 S.Ct. 87, 93 L.Ed.2d 40 (1986).

The record shows that defendant lived and worked near the location where the cocaine was being sold, an area notorious for drug offenses. Both the intersection and the two other participants' conduct could be observed readily from a distance of at least fifty yards. Between thirty and sixty seconds after DeJesus and Neris were apprehended, defendant sped to the intersection brandishing a carbine. After defendant was arrested and as he seemingly attempted to resist, DeJesus urged defendant to "stop", because "it won't help any."

These circumstances support the government's theory of the defendant's role in the conspiracy: that he was to monitor the cocaine distribution from a concealed vantage point and, in the event of interference, to rush to the scene to provide protection for his confederates. The amount of currency found in the defendant's pocket tends to corroborate his involvement in drug transactions.

That the policemen were in plain clothes is not inconsistent with the government's theory. Before Officer Cruz identified himself as a policeman, defendant might well have surmised that the two officers were attempting to rob DeJesus and Neris of their cash and narcotics. Indeed, that assumption would seem more likely to have triggered the defendant's response than would have a desire to forcibly interfere with an arrest.

The evidence permits the inference that defendant played an integral role in the cocaine sales scheme. The conspiracy theory was adequately supported by circumstantial proof of a rational plan for protection directly related to distribution. In fact, the defendant's conduct might have supported an indictment for aiding and abetting as well. We conclude that the evidence admitted at the trial was sufficient to support a jury verdict that defendant was guilty of conspiracy. The conviction on this count will be affirmed.

II. COUNT 3--ASSAULT ON A FEDERAL OFFICIAL

Defendant next contends that the government failed to prove that Officer Abel was protected by 18 U.S.C. Sec. 111, which prohibits assaults against certain designated federal officials. The statute, in pertinent part, reads: "Whoever forcibly assaults ... any person designated in section 1114 of this title while engaged in or on account of the performance of his official duties, shall be fined ... or imprisoned ... or both." 18 U.S.C. Sec. 111. Among the officials listed in section 1114 is "any officer or employee ... of the Drug Enforcement Administration." 18 U.S.C. Sec. 1114.

Abel testified that the resident agent-in-charge of the Philadelphia DEA office had administered an oath to him. Defendant contends, however, that to be considered a federal employee, Officer Abel had to have...