United States v. Guzman-Ortiz

• Decision Date: 16 September 2020
• Docket Number: No. 19-1349,19-1349
• Citation: 975 F.3d 43
• Parties: UNITED STATES of America, Appellant, v. Luis F. GUZMAN-ORTIZ, Defendant-Appellee.
• Court: U.S. Court of Appeals — First Circuit

975 F.3d 43

UNITED STATES of America, Appellant,

v.Luis F. GUZMAN-ORTIZ, Defendant-Appellee.

No. 19-1349

United States Court of Appeals, First Circuit.

September 16, 2020

Mark T. Quinlivan, Assistant United States Attorney, and Andrew E. Lelling, United States Attorney, on brief for appellant.

E. Peter Parker on brief for appellee.

Before Lynch, Kayatta, and Barron, Circuit Judges.

BARRON, Circuit Judge.

In June of 2018, a jury in the United States District Court for the District of Massachusetts found Luis Guzman-Ortiz guilty of one count of conspiracy to distribute and possess with intent to distribute heroin in violation of 21 U.S.C. § 846. The following spring, however, the District Court granted Guzman-Ortiz's motion for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29. The District Court ruled that there was insufficient evidence in the record to permit a reasonable juror to find beyond a reasonable doubt that Guzman-Ortiz knowingly either agreed to participate or participated in the alleged conspiracy. The United States now appeals from that ruling. We affirm .

I.

We recount the essential facts of the case, drawn from the trial record, in the light most favorable to the verdict. See, e.g., United States v. Mubayyid, 658 F.3d 35, 41 (1st Cir. 2011). On July 6, 2015, a United States Drug Enforcement Administration (DEA) Task Force, which included DEA agents and officers from local police departments in Massachusetts, was investigating Oristel Soto-Peguero and Mercedes Cabral, a couple who were then living in a two-bedroom, two-story apartment in Norwood, Massachusetts, for their possible involvement in distributing drugs. At 1:43 p.m. that day, the Task Force used a wiretap to listen to a telephone conversation between Soto-Peguero and an individual by the name of Eddyberto Mejia-Ramos, who was a suspected drug dealer and another target of the Task Force's investigation. Soto-Peguero received the call at the apartment he leased with Cabral in Norwood and used coded language to tell Mejia-Ramos that he had heroin for sale.

Suspecting an imminent heroin delivery based on the call, the Task Force set up surveillance of the Norwood residence that afternoon. At 6:00 p.m., Task Force members observed Cabral leave the apartment and go to the grocery store. When she returned about an hour later, Task Force members saw Guzman-Ortiz exit the apartment and assist Cabral with bringing grocery bags into it. This was the first time that the Task Force had come across Guzman-Ortiz during the investigation into Soto-Peguero and Cabral.

At 8:57 p.m., Soto-Peguero received a phone call at the apartment from Mejia-Ramos, requesting, again in coded language, that Soto-Peguero sell and deliver a large amount of heroin. Soto-Peguero agreed and said that he would dispatch Cabral with heroin to Mejia-Ramos' location. Approximately half an hour later, Cabral got back in her car and left the apartment.

Members of the Task Force followed Cabral in her car. Then, at 9:38 p.m., Soto-Peguero called Mejia-Ramos and told him that Cabral was on her way. Thereafter, the Task Force members following Cabral pulled her car over. While she was detained, Task Force members seized seven to ten bricks of heroin (totaling 918 grams) wrapped in cellophane packaging from her purse. Soto-Peguero's fingerprints were later identified on the bricks of heroin recovered from Cabral's purse. Guzman-Ortiz's fingerprints were not found on any of those packages.

Around 10:00 p.m., after Cabral was arrested, members of the Task Force decided to "enter and freeze" the apartment in Norwood that Cabral and Soto-Peguero had leased pending the issuance of a search warrant. After knocking and announcing their presence, Task Force members forcibly entered through the apartment's front and back doors.

As the Task Force members were attempting to enter the apartment, Soto-Peguero and Guzman-Ortiz ran up the stairs, where they were observed standing near a window in one of the bedrooms. Task Force members ordered the two men to come downstairs. After as many as ten minutes, and following numerous commands to descend, they did.

Soto-Peguero descended by sliding face-first down the stairs. One Task Force member testified that as Soto-Peguero slid down, he observed two plastic, knotted baggies on the floor, which he assumed had spilled out of Soto-Peguero's clothes. Guzman-Ortiz descended next and without incident.

A sweep of the apartment by Task Force members turned up, in the same upstairs guest bedroom that Soto-Peguero and Guzman-Ortiz had fled to as Task Force members entered the apartment, a kilogram of heroin fully wrapped in opaque, black electrical tape and partially hidden in an air duct located on the floor below the window where the two men had been observed standing. It is unclear from the record whether, when it was discovered, the brick of heroin would have been readily apparent to someone entering the bedroom without lifting the cover of the air duct. The sweep also revealed what appeared to be a quarter baggie of a powder drug, less than ten millimeters in diameter, to the right of the vent.

In a second bedroom that appeared to belong to Soto-Peguero and Cabral, Task Force members found during the sweep another 834 grams of heroin, some of which was wrapped in a black plastic bag on the floor and the rest of which was discovered inside of a dresser. In that same bedroom, Task Force members found six cellphones and some drug-packaging materials.

Downstairs, the state of the kitchen indicated that Guzman-Ortiz, Soto-Peguero, and Cabral had eaten a meal together that evening. In the living room, Task Force members found the base of a blender or grinder on the floor, and, on the dining room table, they found a roll of cellophane wrapping tape and some cellphones. In a closed but unlocked hallway closet, there was a small bag of heroin, cutting agents, Glad sandwich bags, aluminum mixing bowls with drug residue, a digital scale, parts of a drug press, and a mold for use in a hydraulic drug press. In the first-floor bathroom, there was a drug press inside a large opaque bag, which, although it is unclear from the record, may have been open at the time that Guzman-Ortiz was in the apartment.

A grand jury in the District of Massachusetts indicted Guzman-Ortiz on March 23, 2016, charging him with possession of heroin with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and conspiracy to distribute and possess with intent to distribute heroin, in violation of 21 U.S.C. § 846.¹ Guzman-Ortiz's trial started on June 18, 2018. He moved for a judgment of acquittal under Federal Rule of Criminal Procedure 29 after the close of evidence, but the District Court allowed the jury to render a verdict. The jury found Guzman-Ortiz guilty on the conspiracy charge but failed to return a verdict on the substantive possession charge.

Post-verdict, Guzman-Ortiz renewed his motion for a judgment of acquittal on the conspiracy charge. The District Court granted the motion on March 14, 2019, reasoning that "[t]here was no evidence that the drug distribution paraphernalia had been used on the day in question, or that the heroin seized from Cabral had been prepared and packaged that day, or that [Guzman-Ortiz] was aware of or had participated in such activities." The District Court further explained that "the only evidence of [Guzman-Ortiz's] participation in [the conspiracy], or his agreement to so participate, was his response, jointly with Soto-Peguero, to the attempted and ultimately successful entry into the apartment by the agents." The District Court deemed that evidence insufficient to meet the government's burden of proof.

The government appealed the District Court's decision on April 9, 2019. We have jurisdiction under 18 U.S.C. § 3731.

II.

To establish a violation of 21 U.S.C. § 846, the government must prove the following elements beyond a reasonable doubt:

(1) the existence of a conspiracy, (2) the defendant's knowledge of the conspiracy, and (3) the defendant's knowing and voluntary participation in the conspiracy. "Under the third element, the evidence must establish that the defendant both intended to join the conspiracy and intended to effectuate the objects of the conspiracy."

United States v. Paz-Alvarez, 799 F.3d 12, 21 (1st Cir. 2015) (internal citation omitted) (quoting United States v. Dellosantos, 649 F.3d 109, 116 (1st Cir. 2011) ). "[T]o establish that a defendant belonged to and participated in a conspiracy, the government must prove two kinds of intent: ‘intent to agree and intent to commit the substantive offense.’ " United States v. Gomez-Pabon, 911 F.2d 847, 853 (1st Cir. 1990) (quoting United States v. Rivera–Santiago, 872 F.2d 1073, 1079 (1st Cir. 1989) ).

We review a District Court's decision to grant a motion for judgment of acquittal de novo. See Mubayyid, 658 F.3d at 47. "[W]e may uphold the judgment of acquittal only if the evidence, viewed in the light most favorable to the government, could not have persuaded any trier of fact of the defendants' guilt beyond a reasonable doubt." Id.

A.

Guzman-Ortiz does not dispute the District Court's determination that "the evidence supports a finding that he, at some point, knew illegal drug activity was conducted" in Soto-Peguero and Cabral's apartment. The District Court concluded, however, that there was insufficient evidence to show beyond a reasonable doubt that Guzman-Ortiz agreed to participate in or participated in the drug conspiracy. Our analysis thus focuses on that point.

" ‘Mere association’ with conspirators or ‘mere presence’ during conduct that is part of the conspiracy is insufficient to establish knowing participation; the defendant must be found to have shared his co-conspirators' intent to commit the substantive offense." United States v. Ortiz, 447 F.3d 28, 32–33 (1st Cir. 2006) (internal citations omitted). However, due "to the clandestine nature of criminal...