United States v. Díaz

• Decision Date: 20 January 2012
• Docket Number: 10–1686.,Nos. 10–1393,10–1530,10–1412,s. 10–1393
• Citation: 670 F.3d 332
• Parties: UNITED STATES, Appellee, v. Albert I. DÍAZ, a/k/a Gringo, Defendant, Appellant.United States, Appellee, v. Javier Rodríguez–Romero, a/k/a Panky, Defendant, Appellant.United States, Appellee, v. Eddie M. Rodríguez, a/k/a Bolón, Defendant, Appellant.United States, Appellee, v. Angel O. López–Capó, a/k/a Baby Face, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

670 F.3d 332

UNITED STATES, Appellee,

v.Albert I. DÍAZ, a/k/a Gringo, Defendant, Appellant.United States, Appellee,

v.Javier Rodríguez–Romero, a/k/a Panky, Defendant, Appellant.United States, Appellee,

v.Eddie M. Rodríguez, a/k/a Bolón, Defendant, Appellant.United States, Appellee,

v.Angel O. López–Capó, a/k/a Baby Face, Defendant, Appellant.

Nos. 10–1393

10–1412

10–1530

10–1686.

United States Court of Appeals, First Circuit.

Heard Nov. 9, 2011.Decided Jan. 20, 2012.

Jorge E. Rivera–Ortíz, by Appointment of the Court, for Albert I. Díaz.

Sonia I. Torres–Pabón, by Appointment of the Court, for Javier Rodríguez–Romero.

Michael R. Hasse, by Appointment of the Court, for Eddie M. Rodríguez.John E. Mudd, by Appointment of the Court, for Angel O. López–Capó.Rosa Emilia Rodríguez–Vélez, United States Attorney, with whom Nelson Pérez–Sosa, Assistant United States Attorney, and Luke Cass, Assistant United States Attorney, were on brief for appellee.

Before LYNCH, Chief Judge, STAHL and THOMPSON, Circuit Judges.

STAHL, Circuit Judge.

A jury convicted defendants-appellants Albert I. Díaz, Javier Rodríguez–Romero, Eddie M. Rodríguez, and Angel O. López–Capó of conspiracy to distribute narcotics and possession with intent to distribute narcotics as a result of their participation in a drug point that operated within a public housing project in Guayama, Puerto Rico. The defendants individually raise a variety of challenges to the district court's jurisdiction, the sufficiency of the evidence, the court's evidentiary rulings, the jury instructions, and their sentences. After careful consideration, we find merit to only one of these claims. Specifically, we find that the district court lacked jurisdiction over Rodríguez, who was a juvenile during much of the conspiracy, with respect to two of the substantive drug counts of which he was convicted. We thus vacate those convictions and remand his case to the district court for a new sentencing hearing. We affirm in all other respects.

I. Facts & Background

On March 27, 2009, a grand jury returned a seven-count indictment against the defendants and forty-three other individuals. The indictment alleged, among other things, that the defendants conspired to operate a drug point in the San Antonio Public Housing Project (commonly known as “Carioca”), in the municipality of Guayama, Puerto Rico.

Count One of the indictment alleged that, between 2006 and March 27, 2009, the defendants and others knowingly conspired to possess with intent to distribute various amounts of cocaine base (“crack”), heroin, cocaine, marijuana, and Oxycodone within 1,000 feet of a school and/or public housing facility and/or playground, in violation of 21 U.S.C. §§ 841(a)(1), 846, and 860. We refer to this as the “conspiracy count.”

Counts Two through Five of the indictment alleged that, between 2006 and March 27, 2009, the defendants and others, aiding and abetting each other, knowingly and intentionally possessed with intent to distribute one kilogram or more of heroin (Count Two), fifty grams or more of crack (Count Three), five kilograms or more of cocaine (Count Four), and 1,000 kilograms or more of marijuana (Count Five) within 1,000 feet of a school and/or public housing facility, in violation of 21 U.S.C. §§ 841(a)(1) and 860 and 18 U.S.C. § 2. We refer to these as the “substantive drug counts.”

Count Six alleged that, between 2006 to March 27, 2009, López–Capó, Díaz, and others conspired to carry and use firearms during and in relation to the drug trafficking crimes charged in Count One, in violation of 18 U.S.C. § 924( o ). Count Seven, which is not at issue here, sought the forfeiture of drug proceeds.

According to the indictment, Díaz worked primarily as an “enforcer” for the drug point, meaning that he used firearms to protect the drug point's employees, narcotics, and proceeds. Rodríguez and Rodríguez–Romero allegedly worked as runners and sellers, meaning that they supplied the drug point with narcotics, collected proceeds, recruited and paid sellers, and prepared ledgers, also known as “tallies,” to keep track of the drug point's sales. The indictment alleged that López–Capó was one of the owners of the drugs distributed at Carioca and that he received proceeds from the sale of crack at the drug point.

These four defendants elected to go to trial. The government presented the testimony of three co-operating witnesses, who had themselves participated in the Carioca drug point: Heriberto García–Román, Leonardo Martínez de León, and Yamil Irizarry–Lucas. The government also presented the testimony of various officers from the Puerto Rico Police Department who had conducted surveillance and arrests, or otherwise intervened, at Carioca. Finally, the government presented the testimony of Carmen Orengo, a licensed chemist for the Puerto Rico Forensic Sciences Institute, who analyzed some of the controlled substances seized from Carioca. Based on her analysis of the substances and the co-operating witnesses' testimony regarding the frequency of sales at the drug point, Ms. Orengo estimated that, in a given year, the Carioca drug point had sold 21.9 kilograms of crack, 5.47 kilograms of heroin, 10.95 kilograms of cocaine, and 18.25 kilograms of marijuana.

The jury found Díaz guilty of Counts One through Five but acquitted him of Count Six. Rodríguez–Romero and Rodríguez were found guilty of Counts One through Five. López–Capó, who testified at trial, was found guilty of Counts One and Three and acquitted of all other counts. This timely appeal followed. ¹

II. Discussion

A. The “Schoolyard” Counts

We begin with a claim raised by Díaz and López–Capó that the government failed to prove beyond a reasonable doubt that the relevant drug activity took place within 1,000 feet of a protected area. See 21 U.S.C. § 860(a). They also argue that the evidence was insufficient to establish the existence of a school, playground, or public housing project as those locations are defined in the statute. See id. Because Díaz and López–Capó raised this argument as part of a Rule 29 motion, we review de novo, viewing the evidence and drawing all reasonable inferences in the light most favorable to the verdict. United States v. Pérez–Meléndez, 599 F.3d 31, 40 (1st Cir.2010). We conclude that the 1,000–foot requirement was met and that the evidence was sufficient to establish the existence of a public housing project. We therefore need not address whether the government also proved that the defendants engaged in drug-related activity within 1,000 feet of a school or playground.

Title 21 U.S.C. § 860(a), also known as the “schoolyard statute,” provides enhanced penalties for the distribution, possession with intent to distribute, or manufacturing of drugs “in or on, or within one thousand feet of” any of three protected areas: (1) a school; (2) a playground; or (3) a public housing facility. The indictment charged the defendants with conspiring to possess with intent to distribute various controlled substances “within one thousand (1,000) feet of” all three protected areas.²

The government seems to have made its job unnecessarily difficult by alleging that the drug activity occurred “within 1,000 feet of” a protected area, rather than simply alleging that it occurred “in or on” a protected area, as the statute allows. See 21 U.S.C. § 860(a). When the government charges a defendant under the “within 1,000 feet” prong of the statute, we have held that the government must prove beyond a reasonable doubt that the distance from the protected area to the site of the drug transaction is 1,000 feet or less. United States v. Soler, 275 F.3d 146, 154 (1st Cir.2002). Because “[d]istances are notoriously difficult to gauge in still photographs, and more so in motion pictures,” we have generally insisted that the government provide a precise measurement. Id. at 155 (internal citation omitted). We have, however, carved out an exception “in some cases where the spatial leeway is relatively great and the gap in the chain of proof is relatively small,” such that “common sense, common knowledge, and rough indices of distance can carry the day.” Id. at 154.

The government offered ample evidence that the drug point operated within the Carioca housing project. Government witness Heriberto García–Román testified that the drug point was located “[i]nside of the Carioca Public Housing Project.... in some abandoned houses that were located right there inside of the Public Housing Project.” Police Officer Víctor J. Veguilla–Figuero testified that the drug point was located “in the area of the staircase,” in “two abandoned houses” and “in the children's play area” within the Carioca housing project, and he identified each of those locations in a photograph of Carioca. Leonardo Martínez de León, who himself dealt drugs in Carioca, identified various locations from which the drug point operated within Carioca. And Police Officer Roberto Ayala–Vega testified that “the drug point was always within Carioca” but moved among multiple buildings in the housing project.

The evidence was also sufficient to establish that Carioca is a “housing facility owned by a public housing authority,” as required by 21 U.S.C. § 860(a). Officer José Ortiz–Sierra, of the Puerto Rico Police Department's Monitoring Center for the Public Housing Projects, testified that the Monitoring Center has surveillance cameras within Carioca. It would be reasonable for the jury to infer from this testimony that Carioca is a public housing project. See Pérez–Meléndez, 599 F.3d at 40. Furthermore, defense witness Jessica Pinto–Capó, who worked as a secretary in the Housing Department, testified that she “grew up in the Carioca Public Housing Project” and that all Carioca apartments are owned by the Public Housing Authority.

Given that the evidence was sufficient for the jury to find that the drug point operated within Carioca and that Carioca is a public housing facility, it...