United States v. Correa-Osorio

• Decision Date: 22 April 2015
• Docket Number: 12–2220.,Nos. 12–1300,s. 12–1300
• Citation: 784 F.3d 11
• Parties: UNITED STATES of America, Appellee, v. Jorge CORREA–OSORIO; Denise Shepard–Fraser, Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

784 F.3d 11

UNITED STATES of America, Appellee

v.Jorge CORREA–OSORIO; Denise Shepard–Fraser, Defendants, Appellants.

Nos. 12–1300

12–2220.

United States Court of Appeals, First Circuit.

April 22, 2015.

Alejandra Bird López, for appellant Jorge Correa–Osorio.

Claudia Leis Bolgen, with whom Bolgen & Bolgen was on brief, for appellant Denise Shepard–Fraser.

John A. Mathews II, Assistant United States Attorney, with whom Rosa Emilia Rodríguez–Vélez, United States Attorney, and Nelson Pérez–Sosa, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

Before THOMPSON, LIPEZ, and BARRON, Circuit Judges.

THOMPSON, Circuit Judge.

OVERVIEW

Jorge Correa–Osorio and Denise Shepard–Fraser stand convicted of cocaine offenses. Both ask us to reverse, though for different reasons. Correa, for example, thinks the judge quadruply erred—first by admitting identification evidence (because a witness made him off a highly suggestive and unreliable procedure), next by admitting key statements under the coconspirator exception to the hearsay rule (because the government showed neither that he was in on the conspiracy nor that the statements furthered the conspiracy's aim), then by admitting evidence of a cocaine-filled suitcase (because the evidence was irrelevant, prejudicial, and confusing), and finally by committing cumulative error (because the net effect of what the judge did made his trial fundamentally unfair). He is wrong. Shepard, for her part, thinks the judge doubly erred—first by finding the evidence sufficient to support her convictions (because the government did not prove guilty knowledge) and then by giving her a 128–month prison term (because the sentence was procedurally and substantively unreasonable). But she is wrong too. We will explain our thinking shortly, right after we set out the case's background.

BACKGROUND

This case should seem familiar to any regular reader of the Federal Reporter, given that it concerns yet another major cocaine conspiracy involving a creative distribution network, a large cast of coconspirators (some with colorful nicknames), and a turncoat who became the government's star witness.

(1)

The Conspiracy at a Glance

Running from June 2006 to June 2008, the conspiracy—led by a man named Manuel Santana–Cabrera (also known as “El Boss”)—operated like this. Recruited couriers took commercial flights from San Juan to mainland cities, including Philadelphia and New York. Before boarding, they would check luggage filled with old clothes, pillows, blankets, etc. —stuff that could get through security without incident. Other conspirators working at the airport would switch the checked luggage with luggage packed with cocaine. Couriers would then fly to their destinations, claim their checked bags, and hand them off to a taxi driver—known to some as “Manopla”—who was in on the conspiracy too. Couriers would make $3,000 a trip.

(2)

The Conspiracy's Unraveling

In September 2006 DEA agents in Philadelphia heard from their colleagues in San Juan that there was something fishy about the flight itineraries of José Vega–Torres and two others, who were flying from San Juan to New York after a layover in Philly.¹ The Philadelphia agents looked for and found the trio's bags. After a drug-detecting dog alerted to the odor of drugs, agents got a search warrant. Their search struck pay dirt: each bag had at least 13 brick-shaped objects wrapped in a blanket, and the objects field-tested positive for cocaine.

Agents arrested Vega and his two sidekicks in New York. Vega initially told a pack of lies about why he had cocaine in his luggage, who had given it to him, who had asked him to go to New York, and who had chauffeured him to the airport. But he eventually agreed to come clean and cooperate in exchange for the government's promise not to indict his wife on conspiracy-related charges too (she was with him on one of his smuggling trips to New York). His cooperation later led to the arrest of Correa and Shepard (plus others) and to much of the evidence the government used at trial (Correa and Shepard were tried together).

(3)

The Case Against Correa

At trial Vega identified Correa, calling him by a nickname, “El Don.” And he testified about the times that he saw him in 2006, apparently (he did not recall the exact dates).

The first time, Vega had gone to leader Santana's house with a conspirator named Israel Martes–Canales (nicknamed “Shaq”). While there, he and Martes helped load six suitcases into the trunk of Correa's car. The suitcases were similar in size and weight to drug luggage Vega had picked up in New York. Correa told Santana that he was actually using his wife's car and that he would “get in trouble” if she found out what he was up to. And after Correa left, Santana told Vega that “Don” was “in charge of taking bags into the airport and putting them inside the plane.”

Vega later saw Correa working at the San Juan airport. About to jet off to New York to deliver more cocaine, he spotted Correa on the tarmac, loading bags onto a plane.

As for the last occasion, Vega went one time with Martes and another conspirator named Ricardo Soler–Rivera to drop a bag off at Correa's house. Soler said the bag had $90,000, just before he gave it to Correa.

Seeking to undermine his credibility, Correa's lawyer extensively cross-examined Vega on a number of topics. Vega, for example, testified about the inducements he received for cooperation, the big one being the government's pledge not to go after his wife if he played ball. Beyond that, he confessed to not telling agents about “El Don” during an early debriefing, even though other conspirators' names easily rolled off his tongue. And despite saying how a conspirator told him that the mainland-bound suitcases contained cocaine, he admitted to not personally knowing whether that was in fact true. He also admitted to never seeing Correa handle any of his checked luggage. What is more, he said that “El Don” had braided hair—something the defense played up because Correa later testified that he did not have braids in 2006.

On redirect Vega said that he personally knew Correa was part of the Santana-drug-trafficking cabal. But the government did not just rely on Vega's testimony to help tell the conspiracy's story. As part of its case-in-chief, the government, for example, also presented (over defense objections) evidence concerning the seizure of a cocaine-filled suitcase at the San Juan airport on October 4, 2007. The prosecution's theory was that evidence about the suitcase constituted overt-act evidence linking the defendants to the conspiracy. Here is what you need to know.

Marionel Báez–Peña—an airport-worker-turned-convict—testified that he loaded drug luggage onto planes for two people: kingpin Santana and a person named Maximo Bencosme–Aybar (also known as “Phantasma”). Báez had done two jobs for Santana. And he was set to do one for Bencosme on October 4.² But he was not feeling well that day, so he asked airport-worker Miguel Ramos–Santi to help out. Another airport worker, Luis del-Valle-Febres, testified that early on the morning of October 4, Ramos asked him to put a tag on a suitcase left on a cart. And del-Valle did just that.

Unfortunately for those involved, DEA-agent Hector Tapia–Gerena—a member of the team investigating Santana's drug doings—got (according to his testimony) a tip that day about a suspicious suitcase at the San Juan airport. Springing into action, he headed for the airport's baggage carousel and spied an unattended suitcase on a cart. The bag's tag read September 23. A drug-sniffing dog detected the presence of contraband. And x-rays of the suitcase showed—in outline—block-shaped items. Agents opened the bag and saw pillows, towels, and t-shirts, plus 13 bricks of powder that tested positive for cocaine. One thing led to another, and agents arrested Báez, Ramos, and del-Valle.

Testifying in his own defense, Correa denied important elements of the accusations against him. For example, he said that until his arrest, he had never met Santana. And he added that the first time he laid eyes on Vega was in court. He also painted a picture of himself as an educated, intelligent person of strong character who lived a very simple lifestyle—one incompatible with a criminal way of life. He insisted too that he did not have access to some areas while working at the airport and so could not have snuck drug bags in as alleged.

(4)

The Case Against Shepard

The case against Shepard essentially rests on a single event—her flying from San Juan to New York on September 9 and back again on September 10. The crucial testimony came from Vega, who had known her for about 20 years and who had what he described as a “friendly” relationship with her in 2006. This is what he had to say.

Already in New York, Vega and Martes went with cabbie Manopla to a New York airport to pick up Shepard and two others. Vega saw the threesome walking from the airport to the cabstand, each carrying two suitcases. Vega and Martes helped put the bags in the taxi's trunk. Manopla then dropped everyone off at a hotel and sped off with the luggage. The accommodations were a little tight—the five from the cab (Vega, Martes, Shepard, and her two companions) stayed with four or five others in a single room a conspirator (the record does not say who) had booked for what ended up being Shepard's one night there. Everyone—except for Vega—came from the same housing project in Puerto Rico.

At some point (the record does not indicate exactly when), Santana called Martes and ordered him to pick up a cash-filled bag at another locale and get the money back to Puerto Rico. So Martes and Vega hopped in a cab, grabbed a bag of $261,000 in cash, and headed back to the hotel. They paid each person in the room—including Shepard—$3,000 for helping get the suitcases to New York. Then they rolled up the rest of the money in socks and crammed the rolls into their cohorts' luggage. Vega, however, did...