United States v. Paz-Alvarez

• Decision Date: 21 August 2015
• Docket Number: 13–2101.,Nos. 13–2098,s. 13–2098
• Citation: 799 F.3d 12
• Parties: UNITED STATES of America, Appellee, v. Angel PAZ–ALVAREZ and Luis Marrero–Marrero, Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

799 F.3d 12

UNITED STATES of America, Appellee

v.Angel PAZ–ALVAREZ and Luis Marrero–Marrero, Defendants, Appellants.

Nos. 13–2098

13–2101.

United States Court of Appeals, First Circuit.

Aug. 21, 2015.

Raymond Rivera Esteves, for appellant Paz–Alvarez.

Javier A. Morales–Ramos, for appellant Marrero–Marrero.

Juan Carlos Reyes–Ramos, 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 SELYA, Circuit Judge, SOUTER,^* Associate Justice, and LIPEZ, Circuit Judge.

Opinion

LIPEZ, Circuit Judge.

Appellants Angel Paz–Alvarez (“Paz”) and Luis Marrero–Marrero (“Marrero”) were convicted for their roles in a drug trafficking conspiracy. Together, they built sophisticated secret compartments (“clavos”) in boats designed to smuggle hundreds of kilograms of cocaine into the United States. They argue that their convictions should be vacated because of errors in the jury instructions. In addition, Paz challenges the sufficiency of the evidence and the two-level sentence enhancement he received for using a “special skill,” while Marrero argues that the conspiracy statutes are unconstitutional as applied to him, that the admission of hearsay evidence gave rise to a prejudicial variance, and that there was cumulative error. Finding no errors and the evidence sufficient, we affirm.

I. Background

A. Facts

Since one of the claims addressed in this opinion is a challenge to the sufficiency of the evidence, we recount the facts in the light most favorable to the verdict. See United States v. Rodríguez–Soler, 773 F.3d 289, 290 (1st Cir.2014).¹ In 2009, Nick Irizarry–Rosado (“Irizarry”) and Edwin Retamar–Oriol (“Retamar”) went into business together smuggling cocaine into Puerto Rico. They had met while in the mutual employ of a Puerto Rico drug trafficker, but Irizarry and Retamar had grown dissatisfied with their employer's way of doing business. Using one of their former employer's boats and Irizarry's contacts in the Dominican Republic, they embarked on an independent venture and successfully smuggled twenty kilograms of cocaine into Puerto Rico.

With the profits from their first solo smuggling job, they purchased a vessel of their own, the Sheymarie. They quickly put the Sheymarie to use, successfully smuggling another 100 kilograms of cocaine into Puerto Rico. Encouraged by the success of that undertaking, their contacts in the Dominican Republic then proposed smuggling a larger quantity of cocaine, specifically, 500 kilograms. Irizarry and Retamar agreed that they would take on the larger load and, to accomplish the task, purchased a second vessel, the Such Is Life.

Problematically, the Such Is Life was not already outfitted with a clavo large enough to smuggle 500 kilograms of cocaine. Consequently, Irizarry and Retamar asked drug dealers with whom they were in contact to recommend individuals with the skills necessary to build hidden compartments in their boat. Paz and his assistant, Marrero, came highly recommended. They had built “several” clavos in the past for the drug dealers Irizarry and Retamar consulted and had reportedly done “a good job.”

After Paz and Marrero were assured that Irizarry and Retamar could be trusted, Paz, Marrero, and a third clavo builder, Jonathan Delgado–Flores (“Delgado”), met with Irizarry and Retamar in Puerto Rico. At the meeting, Irizarry and Retamar told the clavo builders that they needed a secret compartment built in the Such Is Life large enough to hold 500 kilograms of cocaine. Paz promised that “it would be done.” Paz, Marrero, Irizarry, and Retamar then met several more times to plan the clavo.

In September 2009, Irizarry, Retamar, Paz, Marrero, and Delgado met inside the Such Is Life to discuss the completed clavo's operation. A sixth individual was also present at that meeting: Ramon Alvarado–Ignacio, who went by the moniker “Moncho” and administered the marina where the Such Is Life was harbored. Moncho was secretly a government informant, wired to record the meeting. Paz, however, was suspicious of Moncho and refused to discuss the clavo's operation in front of him. Moncho left the room, leaving the door open, and Paz instructed another person in the room to close the door so Moncho could not hear how to operate the secret compartment. Several minutes later, when that portion of the conversation was concluded, Moncho was permitted to reenter.

At the close of the meeting, Retamar told Paz that they needed a clavo built in their other boat, the Sheymarie. Soon, Paz and Marrero were at work on two secret compartments in that vessel: they enlarged an existing clavo and built a second one. Within a month, however, law enforcement officials detected controlled substances onboard the Sheymarie and seized her.

On November 10, 2009, Irizarry, Retamar, Paz, and Marrero again met in Puerto Rico, this time to discuss building an additional compartment in the Such Is Life. A second compartment was needed because 500 kilograms of cocaine would not comfortably fit in the first clavo.²

Two days later, Retamar, Paz, Marrero, and others met in Puerto Rico to discuss the new clavo. They also discussed the upcoming trip, which was being coordinated with the Dominican contacts, to smuggle 500 kilograms of cocaine from Venezuela into Puerto Rico by way of a rendezvous point on the open sea near St. Croix. Retamar invited Paz, Marrero, and Delgado to join him on the voyage, and Marrero and Delgado agreed to go. Later, however, Marrero changed his mind; hence, neither he nor Paz accompanied Retamar on the drug-smuggling excursion. In December 2009, with the new clavo completed, Delgado and Retamar took the Such Is Life to the rendezvous point.³ The mission was unsuccessful, though, because the supplier never arrived.

At some point after that, Irizarry and Retamar parted ways. Retamar launched an independent operation using a new vessel. However, federal authorities soon arrested Retamar, seizing his new boat and the drugs onboard. Retamar then began cooperating with the authorities.

Under the direction of federal agents, Retamar reached out to Irizarry, ostensibly to resume business together. Retamar was actually helping to set up a sting operation: a voyage on which Irizarry and other conspirators would be caught smuggling drugs. As planned, Irizarry took the Such Is Life on a drug-smuggling mission and loaded it with cocaine. On its way back to Puerto Rico, however, the Such Is Life encountered mechanical trouble and stalled in the water. Federal agents rushed in, seizing the boat.

Agents from U.S. Customs and Border Protection, including Agent Rafael Reyes (“Reyes”), searched the Such Is Life for contraband. Reyes had ten years of experience on the anti-smuggling team, but he nevertheless struggled to find the sophisticated clavos that Paz and Marrero had constructed. Reyes and his team ultimately uncovered the clavos and found 150 kilograms of cocaine within.

B. Procedure

In September 2012, a grand jury returned an indictment charging the appellants and nine others with: one count of conspiring to possess with intent to distribute controlled substances, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A)(ii) ; and one count of conspiring to import a controlled substance, in violation of 21 U.S.C. §§ 963, 952, 960(a)(1), and 960(b)(1)(B).⁴

Paz and Marrero were tried together.⁵ The government's case relied heavily on cooperating witness Retamar, whose testimony comprised most of the first two days of the three-day trial. The jury returned a verdict of guilty on both counts as to both Paz and Marrero. On the same verdict sheet, the jury was asked whether “more than 5kg of cocaine” or “less than 5kg of cocaine” were involved in the conspiracy. The jury found that “more than 5kg of cocaine” were involved.

At sentencing, the district court determined that Paz's base offense level (“BOL”) under the Sentencing Guidelines was 38 because, by a preponderance of the evidence, over 150 kilograms of cocaine were involved in the conspiracy. Two levels were added to the BOL because Paz used a special skill, resulting in a total offense level of 40, with a corresponding Guidelines range of 292 to 365 months. The court sentenced Paz to 292 months' imprisonment.

The court also set Marrero's BOL at 38 based on its finding that the conspiracy involved more than 150 kilograms of cocaine. The court then reduced his BOL to 28 for, among other factors, minimal participation, yielding a Guidelines range of 78 to 97 months' imprisonment. However, the jury's finding that more than five kilograms of cocaine were involved in the conspiracy triggered a 120–month statutory minimum sentence. Hence, Marrero was sentenced to 120 months' imprisonment.

Paz and Marrero each appeal their sentences and convictions on multiple grounds, some overlapping.

II. Joint Issues

Appellants make two challenges to the jury instructions. First, they contend that the court did not properly charge the jury with the mens rea required for conspiracy. Second, they argue that the court did not properly instruct the jury to apply the reasonable doubt standard to its finding that more than five kilograms of cocaine were involved in the conspiracy.

A. The Intent Instruction

To support a conviction for conspiracy, the evidence must show (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. United States v. Dellosantos, 649 F.3d 109, 116 (1st Cir.2011). “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.” Id.

The court instructed the jury on the third element of conspiracy as follows: “Here the allegation is that Mr. Paz and Mr. Marrero joined the conspiracy knowingly and willfully.... Acting...