United States v. Cordero

• Decision Date: 03 September 2020
• Docket Number: Nos. 19-3540/3543,s. 19-3540/3543
• Citation: 973 F.3d 603
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Angel CORDERO (19-3540) ; Eduardo Rios Velasquez (19-3543), Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

973 F.3d 603

UNITED STATES of America, Plaintiff-Appellee,

v.Angel CORDERO (19-3540) ; Eduardo Rios Velasquez (19-3543), Defendants-Appellants.

Nos. 19-3540/3543

United States Court of Appeals, Sixth Circuit.

Argued: August 5, 2020

Decided and Filed: September 3, 2020

Rehearing Denied November 3, 2020

Rehearing En Banc Denied November 18, 2020

ARGUED: Joseph V. Pagano, Rocky River, Ohio, for Appellant in 19-3540. Richard P. Kutuchief, THE KFARM, Coventry Township, Ohio, for Appellant in 19-3543. Daniel R. Ranke, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee. ON BRIEF: Joseph V. Pagano, Rocky River, Ohio, for Appellant in 19-3540. Richard P. Kutuchief, THE KFARM, Coventry Township, Ohio, for Appellant in 19-3543. Daniel R. Ranke, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee.

Before: ROGERS, KETHLEDGE, and NALBANDIAN, Circuit Judges.

ROGERS, Circuit Judge.

Defendants Angel Cordero and Eduardo Velasquez were convicted by a jury of conspiring to commit murder for hire and conspiring to distribute one kilogram of cocaine. On appeal, defendants argue that their convictions were not supported by sufficient evidence and challenge the admission of other-acts evidence under Federal Rule of Evidence 404(b). Defendants also raise sentencing claims. Defendants’ challenges to their convictions fail because the record demonstrates a sufficient factual basis for their guilt on the charged offenses. Also, the district court correctly admitted the challenged bad-act evidence, as that evidence served permissible purposes under Rule 404(b) and was probative of contested issues in the case. Finally, the district court properly applied the Sentencing Guidelines to calculate Cordero's base offense level. However, as the Government concedes, a limited remand is required with respect to Velasquez, who was incorrectly sentenced as a career offender.

I. Factual and Procedural Background

In March of 2007, Angel Cordero was confined at the Fort Dix correctional facility in New Jersey, where he was serving a 40-year sentence. During his incarceration at Fort Dix, Cordero met Marc King, another inmate who lived in the same dorm. King was serving a sentence for his role in a long-running cell phone insurance fraud scheme. While out of prison on bond, King engaged in stock market manipulation fraud that added time to his sentence. King offered to help Cordero and other inmates at Fort Dix "fix" their credit ratings through identity theft. Contraband was rampant at Fort Dix, and King would routinely rent smartphones with internet access from other inmates in order to conduct his fraud. Cordero himself owned a small "flip phone" which he used to call and send text messages. In return for his services, King would receive monetary payment or, in the case of Cordero, assistance in marketing his skills to other prisoners.

King was eventually introduced (virtually) to Cordero's friend and co-defendant Eduardo Velasquez. Cordero and Velasquez had spent eleven years together as cellmates in prison, and the two maintained a close bond. At the time, Velasquez was out of prison but still on probation in Lorain, Ohio. King began assisting Velasquez in fraudulently obtaining products from Home Depot and other hardware stores that were used for Velasquez's landscaping business. The landscaping equipment was purchased with stolen credit cards that King bought off black-market websites. King was also able to secure a fake ID for Velasquez's brother using a stolen social security number.

Cordero eventually asked King if he would be able to locate the address of a woman named Tyra Goines. Cordero said that Velasquez wanted to kill Goines. Cordero did not explain the exact connection between Goines and Velasquez, but gave a vague story about how Goines had profited off a drug robbery during which her boyfriend, Glenn Smith, was killed. Glenn Smith was purportedly the brother of Velasquez's drug supplier. King expressed his disbelief of Cordero's story, prompting Cordero to call Velasquez, who explained that he and someone else were looking for Goines and that the private investigator they had hired was not able to find her. Cordero told Velasquez that King would be able to help. Cordero proceeded to ask Velasquez, "[i]f you find her, what are you going to do [?]" to which Velasquez responded, "I'm going to tie her up and get rid of the bitch." Upon learning that Velasquez wanted to kill Goines, King contacted his attorney to inform the Government of the murder scheme, hoping to receive a reduced sentence in return. Meanwhile, King had no difficulty locating Goines’ address in an online version of the white pages. King was also able to find Goines on a number of social media and messaging websites. Cordero and Velasquez promised King payment in exchange for locating Goines’ address.

During the same period, Velasquez also sought King's assistance in rerouting a package being shipped from Puerto Rico to Ohio. Velasquez told King on the phone that "if we can reroute the stuff that I've got, we'll be rich." Velasquez also told King that, had he known earlier that King had the ability to reroute packages, they would have "been rich already." King testified that he understood this to mean that the package contained drugs because Cordero had told him that Velasquez was a drug dealer and King had heard Velasquez make statements indicating his involvement in drug trafficking. Velasquez elaborated that by rerouting the package, he and King were going to "burn the supplier." King thought this meant that Velasquez would avoid paying the supplier by reporting that the package never arrived, thereby allowing him to sell the drugs for a higher profit.

On June 29, 2017, King met with Government agents at Fort Dix and discussed both the murder and drug distribution plots. During the meeting, the Government promised King that, in exchange for his cooperation, he would not be prosecuted for his illegal activity while in prison and would receive consideration for a reduction in his sentence. However, the Government forbade King from engaging in any further illegal activity even as part of the investigation into Cordero and Velasquez. As part of its investigation, the Government subpoenaed Cordero's phone records, which showed that Cordero and Velasquez had conducted 21 calls between June 29th and 30th.

The drug and murder schemes continued to progress after King met with the Government. Cordero told Velasquez that he wanted $1,500 in exchange for the information about Goines’ address, which was to be split evenly between Cordero and King. Velasquez responded that he would have to "[w]ait for [his] man to get back in town" in order to negotiate the price. King testified that Velasquez's "man" was referred to as "Victor" and "the California guy," and Victor was said to have owned the drugs that Goines purportedly ran off with. King further testified that he understood Victor to be paying Velasquez to murder Goines. Forty-eight hours later, Velasquez conducted a call during which King negotiated a price of $1,500 with Victor. Cordero and Velasquez also asked King to reroute¹ a package containing surveillance equipment they had ordered from a spyware company called Brickhouse security and instructed King to have it shipped to Velasquez's address in Lorain, Ohio. Cordero and Velasquez indicated to King that this equipment, which included night vision goggles, a listening device, and nano GPS, was to assist in staking out the area where Goines lived. Velasquez had also by this time sent Cordero a text message with the tracking number for the drug package. King had told Cordero and Velasquez that his aunt worked for the post office and would help reroute the package. King's "aunt" was in reality special agent Diana Spangenberg of the Drug Enforcement Administration. Cordero gave King the tracking number, and King in turn covertly texted it to Spangenberg. That tracking number was eventually traced by postal inspectors to a package containing one kilogram of cocaine.

On July 7, 2017, King met again with Government agents, who this time equipped King with a recording device disguised as a credit card. The agents told King that he would wear the device for around four hours. King secretly recorded Cordero while the two engaged in a series of conversations, covering both the alleged murder-for-hire and drug-trafficking schemes. First, Cordero and King discussed the status of the Brickhouse Security package, with Cordero telling King how happy Velasquez would be when it arrived. The discussion next covered the status of the drug package. Cordero asked King, "[y]ou wanna check the post office?" Cordero recited the tracking number to King, who plugged it into the post office's website. The check of the post office website revealed that the package never made it to Ohio and had been sent back to Puerto Rico. Cordero reassured King, however, stating, "don't worry about the package. Once it gets back to Puerto Rico, they'll retrieve it." The audio captures Cordero's instructing King to take a screenshot of the post office website that showed the package's arrival in Puerto Rico. Cordero then told King to send the screenshot to Velasquez, along with a message that Cordero dictated.

To prompt Cordero about the murder plot, King pretended to be worried that he would not be paid because Velasquez would be afraid to act. Cordero denied that Velasquez was scared. Cordero then described what Velasquez planned to do: Velasquez would be paid by "his man," presumably Victor, to find Goines’ address and would follow up with an offer to kill Goines for payment:

Cordero: Yeah, cause once he [Velasquez] finds that, he sees ... he's not going to give that information to him [Victor], he's going to sell it to him

King: That's what I'm saying ... sell it for what, don't, isn't he the one that's going to take the hit anyway? Isn't he the one taking the hit?

Cordero: That's what I'm saying, we

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