United States v. Harold Esquilin-Montanez [2], CRIMINAL NO. 16–796 (PG)

• Decision Date: 27 March 2018
• Docket Number: CRIMINAL NO. 16–796 (PG)
• Citation: 298 F.Supp.3d 345
• Parties: UNITED STATES of America, Plaintiff, v. Harold ESQUILIN–MONTANEZ [2], James Stewart–Carrasquillo [3], Defendants.
• Court: U.S. District Court — District of Puerto Rico

298 F.Supp.3d 345

UNITED STATES of America, Plaintiff,

v.Harold ESQUILIN–MONTANEZ [2], James Stewart–Carrasquillo [3], Defendants.

CRIMINAL NO. 16–796 (PG)

United States District Court, D. Puerto Rico.

Signed March 27, 2018

Edward G. Veronda, Department of Justice United States Attorney's Office District of Puerto Rico, San Juan, PR, for Plaintiff.

Jorge Luis Gerena–Mendez, Gerena Mendez Law Office, Maria Dominguez–Victoriano, McConnell Valdes LLC, San Juan, PR, for Defendants.

OPINION AND ORDER

GUSTAVO A. GELPÍ^* , UNITED STATES DISTRICT JUDGE

Pending before the court are the defendants Harold Esquilin–Montanez and James Stewart–Carrasquillo's motions for judgment of acquittal under Rule 29 of the Federal Rules of Criminal Procedure (Dockets No. 243, 245) and the government's response thereto (Docket No. 247). After carefully considering the parties' arguments, the court DENIES the defendants' motions for the reasons explained below.

I. BACKGROUND

On August 7, 2017, a jury found co-defendants Harold Esquilin–Montanez ("Esquilin") and James Stewart–Carrasquillo ("Stewart") guilty of the three counts they were indicted for: (1) possession with the intent to distribute more than five kilograms of cocaine on board a vessel subject to U.S. jurisdiction (aiding and abetting) in violation of 46 U.S.C. § 70503(a)(1) and 18 U.S.C. § 2 ; (2) conspiracy to possess with the intent to distribute more than five kilograms of cocaine on board a vessel subject to U.S. jurisdiction in violation of 46 U.S.C. §§ 70503(a)(1) and 70506(b) ; and (3) possession with the intent to distribute more than five kilograms of cocaine (aiding and abetting) in violation of 21 U.S.C. § 841 and 18 U.S.C. § 2. See Docket No. 27, 238, 239. Pursuant to the Complaint, Police of Puerto Rico officers from the Ceiba Marine Unit arrested the appearing co-defendants, along with co-defendant Juan Carrasquillo–Soto,¹ on December 10, 2016, after seeing them on board a fishing vessel throwing bales of cocaine into the water. The moving defendants have always maintained that, despite their objections, the drugs were located at sea during a legitimate fishing trip and placed on board by lead defendant Carrasquillo. See Docket No. 196.

Shortly after the verdict, co-defendants filed separate motions under Rule 29 arguing that the evidence adduced at trial was insufficient to support certain elements of the charges and requesting that this court acquit them from their convictions. See Dockets No. 243, 245. The government timely opposed the defendants' motions and asked the court to deny their request. See Docket No. 247.

II. STANDARD OF REVIEW

Pursuant to Rule 29 of the Federal Rules of Criminal Procedure, "[a] defendant may move for a judgment of acquittal, or renew such a motion, within 14 days after a guilty verdict or after the court discharges the jury, whichever is later." Fed. R. Crim. P. 29(c). In ruling on a motion under this rule, the court must view "the evidence in the light most flattering to the jury's guilty verdict, [and] assess whether a reasonable factfinder could have concluded that the defendant was guilty beyond a reasonable doubt." United States v. Lipscomb, 539 F.3d 32, 40 (1st Cir. 2008) (alteration in original). In addition, the court will give "equal weight to direct and circumstantial evidence," United States v. Appolon, 715 F.3d 362, 367 (1st Cir. 2013), and refrain from "assess[ing] the credibility of witnesses, as that is a role reserved for the jury." Lipscomb, 539 F.3d at 40 (quoting United States v. Trinidad–Acosta, 773 F.3d 298, 310–11 (1st Cir. 2014) ). If, however, evidentiary conflicts, credibility questions or competing inferences (two or more of which are plausible) arise, the trial judge must resolve them in the prosecution's favor. United States v. Olbres, 61 F.3d 967, 970 (1st Cir. 1995).

In essence, "[t]he court's duty is to make sure the evidence is sufficient to support the conviction." United States v. Guzman–Montanez, 756 F.3d 1, 10 (1st Cir. 2014). Therefore, "[t]he government need not succeed in eliminating every possible theory consistent with the defendant's innocence." Trinidad–Acosta, 773 F.3d at 310–11 (quoting United States v. Troy, 583 F.3d 20, 24 (1st Cir. 2009) ). "And circumstantial evidence alone may be sufficient to provide a basis for conviction." United States v. Rodriguez–Duran, 507 F.3d 749, 758 (1st Cir. 2007). Consequently, "[d]efendants challenging convictions for insufficiency of evidence face an uphill battle on appeal." Lipscomb, 539 F.3d 32, 40 (quoting United States v. O'Shea, 426 F.3d 475, 479 (1st Cir. 2005) ).

III. DISCUSSION

1. Possession with Intent to Distribute Charges

The defendants contend that the evidence was insufficient to support a conviction for the charge of possession with intent to distribute.

"In order to prove possession with intent to distribute, the government must show that the defendants knowingly and intentionally possessed, either actually or constructively, a controlled substance with the specific intent to distribute." United States v. Ayala–Vazquez, 751 F.3d 1, 12 (1st Cir. 2014) (citing United States v. Garcia–Carrasquillo, 483 F.3d 124, 130 (1st Cir.2007) ). "[T]he requisite knowledge and intention can be inferred from circumstances ...." United States v. McLean, 409 F.3d 492, 501 (1st Cir. 2005). Thus, " ‘[t]here must be some action, some word, or some conduct that links the individual to the contraband and indicates that he had some stake in it, some power over it.’ " Id. (citing In re Sealed Case, 105 F.3d 1460, 1463 (D.C.Cir.1997) ).

" ‘Knowing possession’ may be proven through either ‘actual or constructive possession.’ " United States v. Mendoza–Maisonet, No. CR 16-194 (FAB), 298 F.Supp.3d 337, 341, 2018 WL 799153, at *4 (D.P.R. Feb. 9, 2018) (citing United States v. Ridolfi, 768 F.3d 57, 61 (1st Cir. 2014) ). "Actual possession is ‘the state of immediate, hands-on physical possession.’ " United States v. Rivera Marin, No. CR 12-616 (DRD), 2014 WL 12776167, at *12 (D.P.R. Sept. 28, 2014) (citing United States v. Zavala Maldonado, 23 F.3d 4, 6 (1st Cir. 1994) ). On the other hand, " ‘[c]onstructive possession exists when a person knowingly has the power and intention at a given time to exercise dominion and control over an object either directly or through others.’ " United States v. Apicelli, 839 F.3d 75, 79 (1st Cir. 2016), cert. denied , ––– U.S. ––––, 137 S.Ct. 1603, 197 L.Ed.2d 729 (2017) (citing United States v. Garcia–Carrasquillo, 483 F.3d 124, 130 (1st Cir. 2007) ). "Possession may be solely by one defendant or jointly with others, which ‘occurs when both the defendant and another person share power and intent to exercise dominion and control over contraband.’ " Ayala–Vazquez, 751 F.3d at 12 (citing United States v. Howard, 687 F.3d 13, 18 (1st Cir.2012) ). See also United States v. Batista–Polanco, 927 F.2d 14, 18–19 (1st Cir.1991) (defendant sitting at table with others while heroin was being packaged was in joint constructive possession of drug). Finally, "[w]here the charges arise from a principal's possession with intent to distribute narcotics, knowledge of the particular controlled substance being distributed is not necessary, and intent to distribute can be inferred from the quantity of drugs involved." United States v. Flores–Rivera, 787 F.3d 1, 22 (1st Cir. 2015) (internal quotation marks and citations omitted).

Here, defendants argue that the government failed to adduce evidence of actual or constructive possession. Specifically, they contest the testimony of FURA² Agent Adalberto Del Valle calling it, among other things, implausible and highly impeachable. In sum, Del Valle testified that at approximately 7:00a.m. on December 10, 2016, while on patrol off the coast of Ceiba, Puerto Rico, he and two other officers detected, intercepted and arrested all three co-defendants on board a vessel with twenty-five bales of suspected cocaine. But Stewart and Esquilin challenge Del Valle's assertion that he was able to see them throwing bales of cocaine overboard from a distance of over one hundred (100) feet. Defendants contend that his visibility was impaired by the distance and the fact that, according to other testimony, the defendants were wearing yellow rain jackets with their hoods up covering most of their faces. According to defendants, his incredible testimony cannot be credited.

The government opposes this argument asserting that despite the distance between both vessels at the time they were first detected visually, upon approaching defendants' vessel more closely, Del Valle was able to confirm that both Stewart and Esquilin were the two individuals standing in the front portion of the boat while Carrasquillo was the one captaining it. See Docket No. 247. Moreover, PRPD Sargeant Magaly Diaz, who was on the FURA vessel along with Del Valle at the time, testified that as the FURA officers got closer to defendants' vessel, she saw black packages being thrown overboard and identified Stewart and Esquilin as the two individuals that were standing on top of the bales and Carrasquillo as the man operating the vessel. See Docket No. 206 at pages 116–121. In addition, co-defendant Stewart admitted that his uncle, Carrasquillo, was the only one who knew how to operate the vessel, see Docket No. 226 at page 52, and the record shows that Carrasquillo never left the wheel as he sped off³ and tried to avoid capture by engaging in a swerve and ramming into the FURA boat.⁴ Viewing the record as a whole and taking the evidence in the light most favorable to the verdict, the court finds that it can be logically and reasonably inferred from defendants' positions inside the vessel at the time of capture that Stewart and Esquilin were the ones throwing the bales overboard, and thus, in possession of the cocaine. See United States v. Romero, 32 F.3d 641 (1st Cir. 1994) (holding the government's evidence of possession was ample for purposes of determining sufficient...