U.S. v. Villafane-Jimenez
| Citation | 410 F.3d 74 |
| Decision Date | 07 June 2005 |
| Docket Number | No. 03-1231.,No. 03-1340.,No. 03-1230.,03-1230.,03-1231.,03-1340. |
| Parties | UNITED STATES of America, Appellee, v. Juan E. VILLAFANE-JIMENEZ, Defendant/Appellant. United States of America, Appellee, v. Eddie S. Rodriguez-Nichols, Defendant/Appellant. United States of America, Appellee v. Manuel Pena-Martinez, Defendant/Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (1st Circuit) |
Gabriel Hernandez-Rivera for appellant Juan E. Villafane-Jimenez.
Wilberto Mercado for appellant Eddie S. Rodriguez-Nichols.
Lydia Lizarribar-Masini for appellant Manuel Pena-Martinez.
German A Rieckehoff, Assistant United States Attorney, with whom H.S. Garcia, United States Attorney, Nelson Perez-Sosa, Assistant United States Attorney, were on brief for appellee.
Before BOUDIN, Chief Judge, HOWARD, Circuit Judge, CARTER,* Senior District Judge.
The Appellants (hereinafter "Defendants") were convicted after jury trial in the District of Puerto Rico of the offenses of conspiracy to distribute cocaine, attempting to distribute cocaine, both in violation of 21 U.S.C. §§ 846 and 841(a)(1), and of carrying firearms during and in relation to the commission of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A). Defendants Villafane-Jimenez (hereinafter "Villafane") and Rodriguez-Nichols (hereinafter "Rodriguez") were each sentenced to prison terms totaling 295 months. Defendant Pena-Martinez (hereinafter "Pena") was sentenced to a prison term of 352 months.1 All three Defendants were made subject to supervised release terms of five years.
The Defendants appeal their respective convictions and challenge various aspects of their respective sentence determinations and the imposition of certain specific conditions of supervised release. This Court has appellate jurisdiction over the case under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). The Court will consider the issues the Defendants generate on appeal, affirm their convictions and affirm their sentences in part, remanding for resentencing of each Defendant only with respect to the drug treatment condition of supervised release.
There is no significant dispute as to the specific acts and conduct of each of the Defendants that are the basis for their indictments and convictions. The Defendants admitted to these at trial. The only dispute goes to the intent with which the Defendants engaged in that conduct. The conduct itself is displayed in the record as follows.
Special Agent Jeffrey Pelaez was employed by the Federal Bureau of Investigation's (hereinafter "FBI") Public Corruption Unit in Washington, D.C. He was assigned to the FBI resident agency in Fajardo, Puerto Rico, to investigate allegations of police corruption within the Puerto Rico Police Department (hereinafter "PRPD"). He was in charge of an operation known as "Honor Perdido."2 The operation lasted from June 2000 to June 2001. In the course of the operation, Pelaez recruited ex-police officer Arturo Ortiz-Colon (hereinafter "Ortiz") as an informant and undercover operative. Ortiz had lost his position in the Puerto Rican police because of prior criminal activity. He had also witnessed criminal activity of officers within the PRPD. Pelaez launched Ortiz as his operative in a drug "sting" operation aimed at corrupt police officers.
Arrangements were made for Ortiz to pose as an actual FBI agent. He was given credentials, agency business cards, a marked vehicle, and a gun, all to create the impression that he was an FBI agent. The FBI rented two apartments at an expensive resort. Ortiz lived in one of those apartments, which was wired for audio and video surveillance, and the FBI used the other apartment to monitor what was happening in Ortiz's apartment.
The evidence would support a jury finding that Ortiz was to pretend to be a corrupt FBI agent involved in a drug trafficking organization in which "the boss" was a fictional Columbian male named "El Viejo." Ortiz was to appear to be looking, on behalf of the fictional El Viejo, for law enforcement officers to transport El Viejo's drug shipments, and to protect the shipments from rival drug gangs and intervening police officers. He was to approach individuals who he personally knew, or had reason to believe, were corrupt,3 and solicit them to carry out an illegal drug transport and be paid to do it.
The Government's evidence supports a finding that Ortiz did, in fact, pose to the Defendants as a corrupt FBI officer engaged in illicit drug trafficking. The jury could reasonably have found that he approached Pena representing that he needed policemen willing to assist him in a major illegal shipment of contraband cocaine by unloading the drugs, transporting the drugs to their destination, unloading them from the vehicles, and providing throughout security to the operation as armed, uniformed police officers.4 Agent Pelaez described at trial a meeting between Ortiz and the Defendants on May 9, 2001, which he monitored by television surveillance. Ortiz there discussed with the Defendants the "specifics" of how the transportation of cocaine would occur. He told the Defendants that the cocaine was owned by "El Viejo," who would be the person paying them for their services. Agent Pelaez's testimony also described the Defendants' videotaped activities in unloading the drugs from a boat at a marina and putting them in a Jeep Cherokee on May 11, 2001. All of the Defendants handled and transported the drugs and Rodriguez patrolled the area with "a fully automatic machine gun" to protect against any interference with the conduct of the operation.
Pena and Rodriguez left the marina area where the drugs were obtained in Ortiz's vehicle with the drugs and a rifle and their sidearms. Villafane, also armed, followed them in a marked police cruiser "to provide security." They took the drugs to Ortiz's apartment. Their activities there were videotaped.5 At a subsequent meeting on May 14, the Defendants were each paid $5000 in cash and they discussed the operation and how it could be better done the next time. Thus, the thrust of the Government's evidence was that the three Defendants understood that they were being recruited by a corrupt FBI agent to participate in an illicit, major drug trafficking project for which they would receive at least $4000 and that they willingly participated therein.
Defendants challenge the validity of the drug convictions on Counts I and II and their convictions on Count III, claiming that they thought all along that Ortiz was a legitimate FBI officer seeking their assistance in legitimate law enforcement activities aimed at curtailing an illegal drug transaction.
The Defendants also attack their convictions on Count III on the separate basis that they carried their weapons because they were required by law to do so when in uniform and that the presence of the firearms at the scene of their drug trafficking activities was merely coincidental to the drug trafficking activities and not "in relation to" the drug trafficking activities, as the statute, 18 U.S.C. § 924(c)(1)(A), requires.6
Defendants seek reversal of their convictions because, they allege, their prosecution violates fairness elements of Due Process of Law under the Federal Constitution. They claim this to be so because they offered evidence, disputed by the Government's evidence at trial, that they reasonably relied on representations, which they allege were made by Ortiz, that the conduct upon which their convictions are based was part of a legitimate law enforcement project Ortiz was carrying out in his capacity as an FBI agent. This, they argue, implicitly represented to them that their conduct was legal.7 Hence, they assert, the convictions should be vacated because the Government is estopped from prosecuting them by reason of their entrapment into the illegal activity.
The short answer to this contention is that the Defendants have the burden of proof to establish at trial their defense of estoppel by entrapment and they failed to do so. They had a full opportunity to adduce any evidence they wished in support of that defense, their counsel argued the defense to the jury, and the district court gave instructions to the jury concerning the defense (as to which there were no objections), and the defense was ultimately submitted to the jury on a disputed record. The result at trial was that the jury found for the Government. We conclude after a careful review of the trial record that the evidence is sufficient to support that result.
In briefing on this appeal, the Defendants simply reargue the factual aspects of the defense in juxtaposition to the Government's evidence that they, in fact, committed each of the charged offenses. On a general theory, Defendants assert that all of the evidence is insufficient to prove that they possessed specific criminal intent to commit the offense. There is no claim made here that evidence material to the defense was limited or excluded at trial. It is not contended that the issues generated by the defense were not submitted to the jury or that those issues were taken away from jury consideration on the evidentiary record. Moreover, it is not contended that there was any defect in the jury instructions given by the Court in respect to the defense. The thrust of the arguments as they are made can only be viewed as the assertion of a claim that the Defendants established at trial the defense of estoppel by entrapment as a matter of law. Review of such a claim is plenary because "the issue is whether or not there was sufficient evidence to support a theory of defense. . . ." Caron, 64 F.3d at 715.
In order to establish the subject defense at trial, the Defendants were required to establish that (1) a governmental official told...
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