U.S. v. Velasquez

• Decision Date: 01 August 2000
• Docket Number: Docket No. 00-1494,DEFENDANT-APPELLANT
• Citation: 271 F.3d 364
• Parties: (2nd Cir. 2001) UNITED STATES OF AMERICA, APPELLEE v. MIGUEL VELASQUEZ,
• Court: U.S. Court of Appeals — Second Circuit

Page 364

271 F.3d 364 (2nd Cir. 2001)

UNITED STATES OF AMERICA, APPELLEE v. MIGUEL VELASQUEZ, DEFENDANT-APPELLANT

Docket No. 00-1494

August Term, 2000

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: June 29, 2001

Decided: November 15, 2001

Appeal from a judgment entered in the United States District Court for the District of Connecticut (Chatigny, J.), following a jury trial, convicting defendant-appellant of one count of attempting to possess with intent to distribute 500 grams or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846, and 18 U.S.C. § 2, and sentencing him to a 96-month term of imprisonment. Affirmed.

Darrell B. Fields, The Legal Aid Society, Federal Defender Division - Appeals Bureau, New York, NY, for Defendant-Appellant.

Michael J. Gustafson, Assistant United States Attorney, Hartford, CT (Stephen C. Robinson, United States Attorney for the District of Connecticut, New Haven, Ct, on the brief) for Appellee.

Before: Miner, Jacobs, and Pooler, Circuit Judges.

Miner, Circuit Judge

Defendant-appellant Miguel Velasquez appeals from a judgment of conviction entered in the United States District Court for the District of Connecticut (Chatigny, J.) after a jury trial, convicting him of one count of attempted possession with intent to distribute 500 grams or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846, and 18 U.S.C. § 2. The district court sentenced Velasquez to a 96-month term of imprisonment. Velasquez' conviction stemmed from a reverse-sting operation during which an undercover officer posed as a drug dealer and taped several conversations between himself and Velasquez that purportedly revealed Velasquez' attempt, through the use of coded language, to purchase a kilogram of cocaine. On appeal, Velasquez challenges the sufficiency of the evidence supporting his conviction. It is his present contention that, based on the evidence presented at trial, no rational jury could conclude beyond a reasonable doubt that he knew that cocaine was the contraband that was the object of his attempted purchase.

For the reasons set forth below, we affirm.

BACKGROUND

I. The Arrest

In October 1999, the Drug Enforcement Administration (the "DEA") began an investigation that targeted Velasquez on the basis of information received from a confidential informant. DEA agent Ezekiel Laureano, who is of Puerto Rican descent and fluent in Spanish, was selected to act as an undercover agent for the investigation. In his dealings with Velasquez, Laureano posed as a drug dealer for the purpose of conducting a "reverse sting."¹ Beginning on October 14, 1999, and over the course of the next five weeks, Laureano and Velasquez engaged in eleven taped telephone conversations during which the two discussed Velasquez' desire to purchase "cars." During these conversations Velasquez used the terms "cars," "exit," "paper," and "car and a half," and Laureano understood them in combination to refer to the purchase and sale of cocaine. On November 22, 1999, Laureano and Velasquez met in person to execute their planned transaction, at which time Velasquez was arrested. Following his arrest, Velasquez was charged in a one count indictment with knowingly and intentionally attempting to possess with intent to distribute 500 grams or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846, and 18 U.S.C. § 2. A jury trial commenced on March 7, 2000 and ended on March 8, 2000 in a guilty verdict.

II. The Government's Case

During the government's case-in-chief, the court received in evidence transcripts of the recorded conversations² as well as the testimony of Laureano.³ Prior to his employment with the DEA in 1988, Laureano had been a member of the Hartford Police Department for approximately seventeen years. His training and experience in narcotics investigations included six months at the Hartford Police Academy and several specialized courses in drug enforcement and investigating techniques. Laureano had posed as an undercover officer for the Hartford Police Department, as both a buyer and seller of drugs, well over 600 times. Laureano also testified that, based on his experiences, it would be "extremely foolish and dangerous" for drug dealers to "speak explicitly about their business when talking to one another," and that they often used "a different language [with] a lot of codes."

The government's case against Velasquez consisted principally of the recorded conversations between Velasquez and Laureano and Laureano's explanations of those conversations. The first of these recorded telephone conversations took place on October 14, 1999, during which Laureano introduced himself and explained to Velasquez that Caguas⁴ had asked him to call. Velasquez then asked Laureano, "how are things?" to which Laureano answered: "They're a little light today but for the weekend I'll be heavy." Laureano testified that the term "heavy" is "a common phrase [used] by drug dealers when they have large supplies," and that he was trying to convey that he "would be replenished by [his] drug suppliers or sources" over the weekend. The conversation then turned to Velasquez asking Laureano whether he could help him purchase a "car." Laureano testified that he "understood one car to mean one kilo of cocaine."

According to Laureano, the two then discussed the details of the transaction:⁵

UC: Are you ready then?

MV: Well then... what exit?

UC: Uh... do you know where the McDonald's in Hartford is?

MV: No, no, no, the exit, you know the exit... the exit of how much? No... is what I'm trying to say to you.

UC: The papers is what you're saying?

MV: Yes, yes, ah huh, forgive me... you know is that we haven't spoke in person.

UC: No, I understand... well if you have the papers we can do it quickly... what price did he give you?

MV: He's always told me exit seventeen.

UC: Exit seventeen... I was thinking more or less by exit eighteen... for the first time but it can be negotiate [sic], understand?

MV: Uh, huh... fine... you say that right now you're not ready, no?

UC: For today, for today, it can't be done...

Laureano testified that he believed "exit" referred to the price of the cocaine (i.e., "exit seventeen" meant "$17,000" and "exit eighteen" meant "$18,000"). He also stated that in October 1999 the street price for a kilogram of cocaine in Hartford ranged from $17,000 to $18,000 and up to $21,000. He further explained that "papers" was "common terminology, meaning money, currency."

Approximately an hour later, Velasquez called Laureano to inform him that he had spoken to his cousin and that "he's made arrangement[s] with someone" but that he would not know until Monday how he could "resolve the car." Laureano then asked: "How much do they sell cars?" Velasquez responded that "[their] car is higher." Laureano testified that he understood Velasquez to mean that his cousin had committed to another source of supply and, although Laureano's price was lower, arrangements had already been made with the other source. Velasquez and Laureano next spoke more than two weeks later on October 28, 1999. Over the course of that day, the two had five telephone conversations regarding Velasquez' desire to purchase a "car" or "cars" from Laureano. During the first call, Velasquez asked: "And the cars? Always there, no?," to which Laureano replied "[y]es, there... [sic] a couple." Laureano testified that he meant to convey to Velasquez that he had the supplies of cocaine and always did. Velasquez also mentioned a friend of his from Boston, which Laureano interpreted to mean that Velasquez "had a partner... or someone who was able to go in on a deal." During the second call, Laureano asked Velasquez how many "cars" he wanted; Velasquez said he needed "two cars" but would have to call his friend in Boston before making a commitment.

During their third conversation, Laureano informed Velasquez that "[i]n reality I have three cars and I was going to give you a phenomenal price." Velasquez then asked, "[i]f the guy [in Boston] grabs all three cars, what exit will each go?" After Laureano indicated that "each one will go... for... sixteen," Velasquez asked, "[h]ow about for less?" However, Laureano refused to lower the price. A few moments later, Velasquez informed Laureano that the man from Boston would call him shortly and that he "has enough for a car and a half." Laureano responded that he would not sell Velasquez a car and a half. Laureano testified that the reference to "a car and a half" indicated a desire to acquire a "kilo and a half" of cocaine.

In their fourth call, Laureano explained to Velasquez that "[t]he cars are good" and Velasquez interjected that "[t]hey're not rebuilt cars." Laureano then responded: "Exactly, exactly.... If one takes... exactly... one takes and wins a race you can get three [or four] time[s] the money. " Laureano testified that in this exchange he intended to convey to Velasquez that the cocaine he had for sale was of "really good pure quality"; that is, the cocaine was "not rebuilt," meaning it was "uncut" or undiluted cocaine. He further indicated that his statements regarding "three" and "four times the money" referred to the practice of cutting cocaine so that a dealer could increase his profits on resale. In their final conversation, Velasquez informed Laureano that the man from Boston wanted "two cars" but "he has for one." Laureano understood this to mean that the "money supplier had enough to buy one kilo [of cocaine], but he actually wanted two."

Laureano next spoke with Velasquez on November 10, 1999, when Velasquez indicated that he was "crazy for work." Laureano testified that he understood this exchange to mean that Velasquez was anxious to do business. A week later, on November 17, 1999, the two had a conversation that, according to Laureano, demonstrated that Velasquez was trying to persuade him to provide cocaine on consignment, a practice known as "fronting."⁶...