United States v. Díaz-Arias

• Decision Date: 29 April 2013
• Docket Number: No. 11–2271.,11–2271.
• Citation: 717 F.3d 1
• Parties: UNITED STATES of America, Appellee, v. Hipólito DÍAZ–ARIAS, a/k/a Hipólito, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

717 F.3d 1

UNITED STATES of America, Appellee,

v.Hipólito DÍAZ–ARIAS, a/k/a Hipólito, Defendant, Appellant.

No. 11–2271.

United States Court of Appeals, First Circuit.

April 29, 2013.

John F. Cicilline, for appellant.

Theodore B. Heinrich, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief for appellee.

Before TORRUELLA, BOUDIN,^* and THOMPSON, Circuit Judges.

TORRUELLA, Circuit Judge.

Following a four-day jury trial, Defendant–Appellant Hipólito Díaz–Arias was found guilty of conspiring to distribute cocaine, in violation of sections 841(a)(1) and 846 of Title 21 of the United States Code. He received a sentence of 120 months' imprisonment to be followed by a supervised release term of five years. Díaz–Arias now appeals his conviction and sentence, claiming that the district court erred in (1) permitting a non-expert witness to identify him as one of the speakers in several wiretap recordings, which the government introduced at trial to establish his involvement in the conspiracy; (2) allowing the jury to receive the transcripts of those recordings, which were labeled with his first name, “Hipólito,” in order to identify him as one of the speakers; (3) allowing the government to introduce evidence about his co-defendants' unrelated drug activity; (4) declining to give the jury a specific instruction regarding any animosity they may have towards his race and ethnicity; (5) refusing to allow the jury to make a determination as to the specific drug quantity that could be attributed to him in the conspiracy; and (6) finding, by a preponderance of the evidence, that he was involved with five or more kilograms of cocaine. Finding no error in the district court's actions, we affirm its judgment in all respects.

I. Background

A. The Indictment and Investigation

On July 27, 2005, Díaz–Arias and twelve other co-defendants were charged pursuantto a four-count, first superseding indictment issued by a grand jury in the District of Massachusetts. Díaz–Arias was only charged in Count One of the indictment, which alleged that he participated in a conspiracy to distribute at least five kilograms of cocaine, from January to October 2004, at various locales within the District of Massachusetts. Among the other defendants who were charged in Count One were Manuel Pinales, Rafael Heredia, ¹ Richard Pena and Tajh M. White. The following facts are recounted in the light most favorable to the verdict. United States v. Poulin, 631 F.3d 17, 18 (1st Cir.2011).

The charges brought against Díaz–Arias arose out of an investigation conducted by the Drug Enforcement Administration (“DEA”) during the summer and fall of 2004. The focus of the investigation was an organization involved in the distribution of large quantities of cocaine in the Boston area. Manuel Pinales was identified as the leader of the organization, receiving cocaine in quantities of between 30 and 80 kilograms at a time from a source of supply in the Dominican Republic. Pinales and his cohorts then distributed these drugs to customers in the Boston, New Bedford and Lowell areas of Massachusetts, as well as to customers in Rhode Island. According to the results of the investigation, the core members of the Pinales organization were Heredia, Rodríguez and Pena.

The DEA investigation relied on court-authorized wiretaps on phones belonging to Pinales, Rodríguez, Pena and Heredia. The evidence submitted at trial against Díaz–Arias consisted primarily of recordings of conversations between Pinales, Pena, Heredia and a man referred to as “Hipólito,” whom the government later identified as Díaz–Arias. The government also relied on several “drug ledgers” that were seized on October 8, 2004, pursuant to search warrants executed on 115 Navarre Street, where Heredia maintained an inventory of cocaine, and at another location known as the “Park Avenue Market,” a grocery store run by Pinales. The government's position at trial was that the ledgers linked Díaz–Arias (referred to in the ledgers as “Hipólito” or “H.P.”) with several kilograms of cocaine and thousands of dollars paid or owed to the Pinales organization. The wiretap recordings, which the government also used to prove that Díaz–Arias was a regular customer of the Pinales organization, are discussed in more detail below.

B. The Wiretapped Conversations

In July 2004, law enforcement agents began intercepting several telephone calls between Hipólito, Pinales, Pena and Heredia. These telephone calls depicted Hipólito attempting to broker several drug transactions with Pinales, with Hipólito asking Pinales to “give me some stuff” and later reminding Pinales “I owe you seven and a half.” The intercepted conversations also revealed that the parties spoke in code, referring to kilograms of cocaine as “cars” and money as “tickets.”

The low point for Hipólito came in the final days of September, when one of his planned cocaine transactions with Pinales went awry. It all began on September 28, when agents intercepted a telephone call where Hipólito told Pinales the following: “so, tomorrow, I am going to send the guy over there ... to bring the tickets, the little tickets, yes, and so you give him that.” Pinales responded, “[a]lright ... [t]ell him to call me, so that he meets up with Viejo ...” ²

The next day, at 11:47 a.m., Alex Hernández, Hipólito's courier, called Pinales and said: “I am Hipólito's guy. I will, I am going to call you ... in a couple of minutes, do you hear?” Pinales told Hernández that this was fine, but gave him another phone number and asked him to “[c]all him there.” An hour later, Hernández placed a call to the phone number that Pinales gave him, which turned out to belong to Heredia. Hernández again identified himself as “Hipólito's guy,” and Heredia instructed him to “come by here, by near here, by Hyde Park,” where the “little store” ³ was located. Hernández told Heredia that he would stop by there to “pick up a pair of pants.” Heredia then called Pinales to ask what he should give to Hernández, to which Pinales responded “the usual” or “the complete one.” Massachusetts State Trooper Jaime Cepero, who was eavesdropping on these calls while sitting in a wire room, alerted surveillance officers that there was a person heading to the Park Avenue Market to meet with Heredia, and that said person was going to be receiving a kilogram of cocaine.

At 1:00 p.m., several law enforcement officers, including DEA Task Force Agent Kevin McDonough, were conducting surveillance around the Park Avenue Market. Twenty minutes later, McDonough observed Heredia come out of the Park Avenue Market, wearing an unzipped jacket. As Heredia stood outside, a red Mustang pulled over next to him, and he began to talk with the driver. At that point, Heredia entered the vehicle through the passenger door, and the vehicle then proceeded down Hyde Park Avenue. It stopped just a few blocks away from 115 Navarre Street. Heredia emerged from the vehicle and entered a residence at that location. One or two minutes later, Heredia exited the residence, this time with his jacket zipped up and his hands inside his pockets. Agent McDonough perceived him to be holding something around his stomach area. Heredia then traveled to the Mustang, reconvened with the driver, and together they headed back to the area of the Park Avenue Market. Now back there, Heredia stepped out of the vehicle, and the vehicle continued on its way. The officers, including Agent McDonough, proceeded to follow it in their unmarked cars.

The red Mustang made its way through several streets in Boston, eventually embarking on Interstate 93, northbound. As Agent McDonough was shadowing the vehicle, Trooper Cepero, who was still in the wire room, contacted a nearby Massachusetts State Police barracks to arrange for a marked police cruiser to stop the Mustang. Trooper John Costa and Sergeant McCarthy, who were in the area driving separate police cruisers, spotted the Mustang as it was approaching the town of Wilmington, Massachusetts and ordered it to pull over onto the hard shoulder lane.⁴ They identified the driver as Alex Hernández and conducted a search of the vehicle using trained canines. The canines sniffed around the vehicle and alerted the officers to an area under the rear of the passenger seat; the officers inspected the floor around this area and found a possible hidden compartment. Hernández was placed under arrest, and the Mustang was towed to the Andover barracks, where an inspection of the hidden compartment yielded a kilogram of cocaine.

As time passed, Hipólito grew anxious awaiting Hernández's arrival. At 3:31 p.m., he called Pinales and asked “[a]t what time did you guys give the car to the guy?” Pinales replied, “[a] while ago ... [i]s he not answering the phone?” “No, he is not answering now ... [y]ou know how that is,” said Hipólito. A worried Pinales then told Hipólito “[o]h, damn ... [b]ad sign ... [t]here are problems there, bro ... I hope ... God willing there are not ...” The two agreed that they would wait and see what happened to Hernández, with Hipólito promising to call Pinales as soon as he had news.

At 4:57 p.m., Hipólito finally called Pinales and told him: “[t]hey caught the man, dude.” Dismayed, Pinales asked where, and Hipólito replied, “in Andover.” Hipólito then told Pinales that he was going to call someone to figure out what was going on. Pinales and Hipólito spoke again on the phone at 7:39 p.m. Pinales warned Hipólito that “[i]t seems the friend is singing” to the police, and Hipólito advised Pinales to change his phone numbers. Almost two hours later, Hipólito called Pinales and told him that he had spoken with Hernández's lawyer, who confirmed that the police had “caught him with that, yes.” Several other phone conversations between Hipólito and Pinales were intercepted on the following day. Those recordings mostly featured discussions concerning the amount of Hernández's...