U.S. v. Yeje-Cabrera

Citation430 F.3d 1
Decision Date02 November 2005
Docket NumberNo. 03-1874.,No. 03-1329.,No. 03-1969.,No. 03-1510.,03-1329.,03-1510.,03-1874.,03-1969.
PartiesUNITED STATES of America, Appellee, v. Rafael YEJE-CABRERA, Defendant, Appellant. United States of America, Appellee, v. Wilfredo Pérez, Defendant, Appellant. United States of America, Appellee/Cross-Appellant, v. William Olivero, a/k/a K, a/k/a Alejandro, Defendant, Appellant/Cross-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Joseph S. Oteri, with whom Kimberly Homan was on brief, for Rafael Yeje-Cabrera.

Juan Ortiz-Lebrón, for Wilfredo Pérez.

Lawrence D. Gerzog, for William Olivero.

Joseph C. Wyderko, Attorney, Criminal Division, U.S. Department of Justice, with whom Michael J. Sullivan, United States Attorney, and Heidi E. Brieger, Assistant United States Attorney, were on brief, for the United States of America.

Before BOUDIN, Chief Judge, LYNCH, Circuit Judge, and SCHWARZER,* Senior District Judge.

LYNCH, Circuit Judge.

This case raises several issues of importance, including whether a district court may punish the prosecution by granting the defendant a lower than warranted sentence after trial because the government had engaged in "fact bargaining."

Three men, Rafael Yeje-Cabrera, Wilfredo Pérez, and William Olivero, were convicted, after a twenty-day jury trial, of conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. § 846. The conspiracy distributed over 260 kilograms of cocaine. Yeje-Cabrera was also convicted of attempted possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and of bribery of a federal agent in violation of 18 U.S.C. § 201(b). These men, and others, distributed truckloads full of cocaine obtained from two Mexican suppliers; the drugs were driven from the Southwest to Massachusetts, Rhode Island, and New York. Yeje-Cabrera, of Westport, Massachusetts, was a principal in the operation and received a life sentence and a fine of $16 million. Yeje-Cabrera was also ordered to forfeit $5.2 million and two parcels of real property. Pérez helped to distribute the cocaine and was an agent for Yeje-Cabrera. He was sentenced to thirty years' imprisonment and fined $4 million. Olivero, who lived in New York, collected the money, distributed cocaine, and assisted with the shipments. By contrast with the thirty-year sentence for Pérez, Olivero was sentenced to 48 months' imprisonment, followed by five years of supervised release.

Yeje-Cabrera attacks his conviction and the forfeiture order. Pérez attacks his conviction through a premature ineffective assistance of counsel claim. Olivero attacks his conviction. All three defendants attack their sentences.

The government was also unhappy with the sentence imposed on Olivero and has cross-appealed. It is the government's appeal which raises the most significant issues in the case. In order to sanction the government for what it considered to be impermissible "fact bargaining," the district court declined to follow the Sentencing Guidelines. This was error. The fact bargaining was the government's willingness during earlier unsuccessful plea negotiations to recommend a lower sentence when the facts known to it at the time, or so the court found, justified a higher sentence. The court declined to give a warranted firearms enhancement and did give an unwarranted minimal-role reduction. The court also concluded, mistakenly, that its role as a fact finder with respect to drug quantity for sentencing purposes had been written out of the Sentencing Guidelines by the decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

We affirm all three convictions and the sentences of Yeje-Cabrera and Pérez. We vacate Olivero's sentence and remand it to the district court for re-sentencing.

I. Statement of Facts and Proceedings

Yeje-Cabrera was a leader of a conspiracy to ship cocaine from the Southwest to various states in the Northeast, where it was sold. Pérez assisted with the distribution of cocaine. Olivero assisted with the collection of money and the distribution and shipping of cocaine.

Two seizures of tractor-trailers full of cocaine provide the bookends for this case. In April of 2001, after using a camera to conduct surveillance of a parking lot in New York City, agents of the Drug Enforcement Administration (DEA) seized a tractor-trailer containing over 300 kilograms of cocaine and over $400,000 in cash. The agents found a cellular telephone inside that contained telephone numbers for Yeje-Cabrera and Olivero. DEA agents then conducted surveillance of Yeje-Cabrera's home in Westport, Massachusetts via a hidden camera in a birdhouse, but Yeje-Cabrera discovered the camera and realized that he was under surveillance. Some time later, the DEA agents applied for and received permission to conduct electronic surveillance of Yeje-Cabrera's phone line. This initial wiretap application was followed by others seeking permission to conduct surveillance on multiple phone lines belonging to Yeje-Cabrera and another suspect. All were allowed.

In August 2001, the INS1 initiated removal proceedings in Boston against Yeje-Cabrera and detained him. He reacted by bribing an INS agent to terminate the proceedings and, in a series of recorded conversations, offering to pay another bribe for information regarding the drug investigation. Yeje-Cabrera was released on his own recognizance and resumed his drug business. Pérez and Olivero, with Yeje-Cabrera, continued to arrange for and conduct the shipment of, payment for, and distribution of cocaine. Meanwhile, DEA agents were monitoring Yeje-Cabrera's phone lines and attempting to engage in other forms of surveillance. The agents prepared to move in on the operation on December 8, 2001, when Yeje-Cabrera and his associates were slated to receive a large shipment of cocaine near New Bedford, Massachusetts. DEA agents and state police were out in force that morning, searching for the participants in the anticipated delivery. As it happened, the drugs came to them: the ill-fated driver of the tractor-trailer, instead of making his delivery, accidentally backed into a state trooper's cruiser. Law enforcement agents seized the tractor-trailer and discovered that it contained 260 kilograms of cocaine. That seizure has the dubious distinction of being the largest drug seizure in Massachusetts history.

The conspiracy continued to receive and distribute cocaine for a short while longer. Finally, on December 21, 2001, officers arrested Yeje-Cabrera, Pérez, and several other conspirators. Olivero ultimately turned himself in.

All three defendants were charged in the December 20, 2001 indictment with conspiracy to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(ii), and 846. Yeje-Cabrera was also charged with two additional crimes: attempted possession with intent to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(ii), and 846, and bribery of a federal agent, in violation of 18 U.S.C. § 201(b). The indictment charged that all defendants held certain real property, vehicles, and currency which were subject to criminal forfeiture under 21 U.S.C. § 853.

Before trial, Yeje-Cabrera unsuccessfully moved to suppress the evidence obtained as a result of the various wiretaps. He argued that the affidavits submitted in support of the electronic surveillance applications failed to satisfy the "necessity" requirement of 18 U.S.C. § 2518(1)(c).

The jury convicted Yeje-Cabrera of all counts; it returned a special verdict, finding that he was responsible for more than 260 kilograms of cocaine on the conspiracy charge and exactly 260 kilograms on the attempt charge, and a forfeiture verdict. The jury convicted Pérez of conspiracy to distribute more than five kilograms of cocaine. It also convicted Olivero of conspiracy to distribute cocaine, though it did not attribute to him a specific drug quantity. That failure by the jury to make a specific finding led to some of the conviction and sentencing issues we discuss later.

The district court sentenced Yeje-Cabrera to life imprisonment. It also fined him and, during sentencing, stated that it was "allow[ing] the government's recommendation for forfeiture." The court sentenced Pérez to 360 months' imprisonment and fined him $4 million. The court sentenced Olivero to 48 months of incarceration.2

II. Discussion
A. Challenges to Conviction
1. Denial of Motion to Suppress Wiretap Evidence

Yeje-Cabrera argues that the district court should have excluded evidence derived from electronic surveillance of telephone conversations because the wiretap applications failed to meet the statutory requirements. If the intercepted conversations and all evidence derived therefrom had been properly excluded, he argues, his convictions would not stand.

Yeje-Cabrera bases his challenge on 18 U.S.C. § 2518(1)(c), which states that each wiretap application "shall include... a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous."

The parties disagree on the proper standard of review. We have long applied a unitary standard of review in § 2518(1)(c) cases: "When reviewing the government's showing of necessity, our role `is not to make a de novo determination of sufficiency as if [we] were [the issuing judge], but to decide if the facts set forth in the application were minimally adequate to support the determination that was made.'" United States v. Santana, 342 F.3d 60, 65 (1st Cir.2003) (quoting United States v. López, 300 F.3d 46, 53 (1st Cir.2002) (alterations in original)).

Yeje-Cabrera urges us to adopt a bifurcated standard of review: first, we should review de novo whether the...

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