U.S. v. VÁzquez–castro

• Decision Date: 07 April 2011
• Docket Number: No. 09–2109.,09–2109.
• Citation: 640 F.3d 19
• Parties: UNITED STATES of America, Appellee,v.José A. VÁZQUEZ–CASTRO, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

640 F.3d 19

UNITED STATES of America, Appellee,

v.José A. VÁZQUEZ–CASTRO, Defendant, Appellant.

No. 09–2109.

United States Court of Appeals, First Circuit.

Heard March 8, 2011.Decided April 7, 2011.

Alvin E. Entin, with whom Elaine Mittleman was on brief and Richard Della Fera and Entin & Della Fera, P.A., was on reply brief, for appellant.Vernon B. Miles, with whom Rosa Emilia Rodriguez–Vélez, United States Attorney, Nelson Pérez–Sosa, Assistant United States Attorney, and Luke Cass, Assistant United States Attorney, were on brief for appellee.Before LYNCH, Chief Judge, TORRUELLA and SILER,^* Circuit Judges.

SILER, Circuit Judge.

Jose Vazquez–Castro was convicted by a jury of three counts: (1) conspiracy to possess with intent to distribute cocaine; (2) possessing cocaine with intent to distribute; and (3) possessing a firearm in furtherance of drug trafficking. He appeals the sufficiency of the evidence for the weapon charge in Count Three, and argues the district court erred by instructing the jury on the Pinkerton theory of liability. For the following reasons, we AFFIRM.

I.

A. The Undercover Sting Operation

DEA Agents Miguel Melendez–Cruz, Roberto Cruz–Perez, and Johnny Melendez organized an undercover operation to buy cocaine. The targeted individuals included Carlos Rodriguez and Israel Ruiz. Rodriguez had solicited Marcos Nunez–Retamar to be a “runner,” or an intermediary who earns commissions by matching suppliers of cocaine with buyers. Nunez–Retamar became a confidential informant.

Agent Cruz–Perez instructed Nunez–Retamar to call Rodriguez and tell him that Cruz–Perez was his brother and he wanted to buy ten kilograms of cocaine. Cruz–Perez, Melendez, and Nunez–Retamar then met with Rodriguez and Ruiz. Nunez–Retamar introduced Cruz–Perez as his brother, and told Rodriguez and Ruiz that he wanted to buy ten kilograms of cocaine. After conversing about the specifics of the deal, they came to an agreement to purchase the cocaine.

The next day, Rodriguez called to report that he had spoken with the supplier and “they wanted to do the deal” in front of a restaurant at a shopping mall that evening. Rodriguez and Ruiz arrived at the designated time, but stated that their supplier did not like the area because they saw suspicious vehicles and uniformed patrols.

Cruz–Perez made several recorded calls to Rodriguez and Ruiz the following day. Ruiz said that no one wants to “release the tickets,” which meant that the suppliers did not want to provide the drugs without first seeing the money. Cruz–Perez asked Rodriguez if he had “iron,” meaning firearms. Rodriguez replied, “I carry steel on my waist.”

Cruz–Perez, Melendez, Nunez–Retamar, and Rodriguez agreed to meet at a restaurant for the exchange at 5:30 p.m. on June 23, 2006. Cruz–Perez placed agents around the premises to make arrests once the drugs arrived. They planned to call these agents after seeing the drugs and ask them to “bring the money in,” which was the code phrase ordering the arrests of the dealers.

Cruz–Perez, Melendez, and Nunez–Retamar arrived first, and waited inside the restaurant. Rodriguez called and said he could not attend the meeting because his car broke down. At 6:30 p.m., a Mitsubishi automobile parked in front of the restaurant, with Ruiz in the back seat and Angel Cruz–Perez (“Angel”) driving. Vazquez–Castro was also in the vehicle, sitting in the front passenger seat. Ruiz exited the vehicle, and Angel and Vazquez–Castro left the area. Ruiz entered the restaurant, told Cruz–Perez that the “kilos were there,” and asked about the money. The agent replied that “not a penny was going to be shown until” he “saw the kilos.” Ruiz responded that he needed to speak “with the owners of the material.”

Ruiz left the restaurant, made a telephone call outside, and returned to again inquire about the money. The agents repeated that there would be no money until the drugs were shown, and Ruiz left to make another telephone call. The Mitsubishi returned with Angel driving and Vazquez–Castro in the front passenger seat. Ruiz got into the back seat. Cruz–Perez approached the Mitsubishi, opened the rear passenger side door, and asked whether they were “going to negotiate?” Angel said “yes,” and instructed Vazquez–Castro to “go get that.”

Vazquez–Castro exited the vehicle, walked to an Isuzu “about six vehicles away,” and got into the rear passenger side. A few minutes later, Vazquez–Castro exited the vehicle, and returned with his hand tucked near the left side of his body and apparently carrying something inside his sweater. Vazquez–Castro got back into the Mitsubishi. Ruiz opened the door and said, it is “here.” Cruz–Perez instructed Nunez–Retamar to check the drugs. Nunez–Retamar looked in the passenger's side “for several seconds,” then told Cruz–Perez to “[b]ring the money, there is a kilo.”

Angel and Vazquez–Castro exited the vehicle and walked into the restaurant, where they were arrested. Ruiz was arrested outside, as were the two individuals in the Isuzu. When Melendez arrested the driver of the Isuzu, the driver said he was armed and “[t]he weapon is under the carpet in the driver's seat, on the floor.” The agent then found a loaded .45 caliber pistol folded in the floor mat on the driver's side of the Isuzu. The agents also retrieved a blue bag containing five kilograms of cocaine from the back seat of the Isuzu and a kilogram of cocaine from the Mitsubishi's glove box.

B. The Trial

Vazquez–Castro and his co-defendants were indicted on three counts. Count One charged Vazquez–Castro and others with knowingly and unlawfully conspiring to possess with intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. Count Two charged him with possessing with intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), and 18 U.S.C. § 2. Count Three charged, “[t]he defendants herein, while aiding and abetting each other, did possess, use and carry ... a .45 caliber Ruger pistol ... in furtherance of a drug trafficking crime” in violation of 18 U.S.C. §§ 924(c)(1)(A) and (c)(1)(A)(i).

At trial, Vazquez–Castro moved under Rule 29(a) for a judgment of acquittal on Count Three. The district court denied the motion. It held that, even though the Government had expressly charged Vazquez–Castro under an aiding and abetting theory in Count Three, the jury may be instructed to consider the liability theory from Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), as an alternative theory for conviction under 18 U.S.C. § 924(c)(1). The district court found that “since both parties argued the foreseeability factor [of the Pinkerton theory] during the Rule 29(a) discussion, a factor which is not an element of the standard of proof of the aiding and abetting theory, ... the alternative Pinkerton theory of liability is justified.” The court later instructed the jury on both theories of liability.

Vazquez–Castro was convicted and sentenced to 120 months for Counts One and Two to be served concurrently, and 60 months for Count Three to be served consecutively, for a total of 180 months imprisonment.

II.

On appeal, Vazquez–Castro makes three related arguments. He argues there was insufficient evidence to convict him of the weapon charge, and maintains that the district court therefore erred in denying his Rule 29 motion before the case was submitted to the jury. He also contends that, because the government expressly included an aiding and abetting theory of liability in the indictment, the court erred by instructing the jury on the Pinkerton theory of liability.¹

We review the denial of a Rule 29 motion for acquittal de novo. See United States v. Rosado–Perez, 605 F.3d 48, 52 (1st Cir.2010). We review the jury instructions for plain error because Vazquez–Castro did not object to them at trial. See Fed.R.Crim.P. 52(b); United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). In analyzing Vazquez–Castro's sufficiency claim, “we must affirm the conviction if after de novo review of the evidence taken in the light most favorable to the government, we conclude that a rational factfinder could find that the government proved the essential elements of its case beyond a reasonable doubt.” United States v. Marin, 523 F.3d 24, 27 (1st Cir.2008).

A. The Pinkerton Instruction

An aiding and abetting theory of liability requires a higher mens rea than a Pinkerton theory of liability. United States v. Shea, 150 F.3d 44, 50 (1st Cir.1998), abrogated on other grounds, United States v. Mojica–Baez, 229 F.3d 292 (1st Cir.2000). To show aider and abettor liability, the government must prove that the defendant knew to a “practical certainty” that the principal would use a weapon during the commission of the crime. United States v. Spinney, 65 F.3d 231, 238 (1st Cir.1995). “[P]ractical certainty is a rubric that calls for proof verging on actual knowledge.” Id. By contrast, under the Pinkerton theory of liability, the jury must find that the defendant was a member of a conspiracy and the use or carrying of a firearm was “reasonably foreseeable” in furtherance of the conspiracy. Shea, 150 F.3d at 50.

Notwithstanding this difference, “a jury may be instructed to consider the liability theory established in Pinkerton as an alternative ground for conviction under § 924(c)(1) in addition to an aiding and abetting theory.” United States v. Medina–Roman, 376 F.3d 1, 3 n. 4 (1st Cir.2004) (internal citation omitted). The alternative instruction is justified because, “[a]s with the aiding and abetting theory, vicarious co-conspirator liability under Pinkerton is not in the nature of a separate offense.” United States v. Sanchez, 917 F.2d 607, 612 (1st Cir.1990) (internal quotations omitted); accord United States v. Gobbi, 471 F.3d 302, 309 (1st Cir.2006) (“The law is crystalline that, when the government has...