United States v. Santos-Soto

• Decision Date: 24 August 2015
• Docket Number: Nos. 11–2160,12–1814.,s. 11–2160
• Citation: 799 F.3d 49
• Parties: UNITED STATES of America, Appellee, v. Norma SANTOS–SOTO, Carlos Plaza–Santiago, Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

799 F.3d 49

UNITED STATES of America, Appellee

v.Norma SANTOS–SOTO, Carlos Plaza–Santiago, Defendants, Appellants.

Nos. 11–2160

12–1814.

United States Court of Appeals, First Circuit.

Aug. 24, 2015.

Gail S. Strassfeld, for appellant Santos–Soto.

Ramón M. González, for appellant Plaza–Santiago.

Tiffany V. Monrose, Scott H. Anderson, Assistant United States Attorneys, 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 HOWARD, Chief Judge, TORRUELLA and KAYATTA, Circuit Judges.

Opinion

TORRUELLA, Circuit Judge.

After a six-day jury trial, Defendants–Appellants Norma Santos–Soto (“Santos”) and Carlos Plaza–Santiago (“Plaza”), former police agents of the Puerto Rico Police, were convicted of conspiracy to injure, oppress, threaten, and intimidate persons in the town of Arecibo in the exercise of their constitutional rights in violation of 18 U.S.C. § 241 (Count 1) and conspiracy to possess with intent to distribute controlled substances in violation of 21 U.S.C. §§ 841, 846 (Count 2). On appeal, they challenge the sufficiency of the evidence supporting their convictions on Count 2.¹ After careful consideration, we reverse Santos's conviction on Count 2 for insufficient evidence, but find that there was sufficient evidence to convict Plaza on Count 2. We, therefore, affirm his conviction.

I. Background

A. Factual Background

We recite the facts as the jury could have found them, viewing the evidence in the light most favorable to the jury's verdict. See United States v. Beltrán, 503 F.3d 1, 2 (1st Cir.2007). Santos and Plaza used to work as police agents in the Arecibo Drug Division of the Puerto Rico Police. In 2007, as members of the “Confidentiality” section, Defendants worked with undercover agents, including Agent José Rodríguez–Vázquez (“Rodríguez”). Santos was in charge of undercover agent Rodríguez.

On July 5, 2007, the Puerto Rico Police, Arecibo Drug Division, executed arrest warrants against some individuals. Two of these individuals—Juan Carlos Aquino–Méndez (“Aquino”) and Roberto González–Medina (“González–Medina”)—were arrested based on complaints filed for an alleged drug transaction that took place on February 7, 2007. These complaints were predicated on a sworn affidavit prepared on February 9, 2007, by undercover agent Rodríguez, where he stated that he and a confidential informant, Gerald Hernández–Vera (“Hernández”), had purchased two ounces of cocaine from Aquino and González–Medina on February 7, 2007. However, the information contained in this affidavit detailing the transaction was false.

The February Incident

On February 7, 2007, Rodríguez and Hernández did not purchase any drugs from either Aquino or González–Medina. Instead, on February 6, 2007, agent Edgardo Hernández–López (a/k/a “Eggy”), a police officer at the Arecibo Illegal Weapons Unit of the Puerto Rico Police, gave two ounces of cocaine to Hernández to plant on Aquino and González–Medina in order to frame them, because Eggy had a personal grudge against Aquino. On February 7, 2007, Rodríguez and Hernández were supposed to do a controlled buy of drugs from Aquino's alleged pusher, González–Medina. They drove together to González–Medina's house and Hernández got out of the car and walked to the rear side of González–Medina's house to do the controlled buy while Rodríguez stayed in the car. Hernández talked briefly to González–Medina's father, but did not purchase any drugs or talk to anyone else. At the time, Hernández had the drugs that Eggy had given him the day before hidden in his boot, but he did not tell this to Rodríguez. Instead, Hernández took out the drugs from his boot and, upon returning to the car, told Rodríguez that González–Medina had just sold him those drugs on behalf of Aquino. Rodríguez then took Hernández home and left with the drugs. While this was taking place, Santos and Plaza were together in a police car in the general vicinity, but they did not see the “transaction” take place. Santos afterwards submitted the drugs for testing to the Institute of Forensic Science,² which concluded that they were in fact cocaine.

Two days later, on February 9, 2007, Rodríguez prepared a sworn affidavit, in which he stated that he and the confidential informant, Hernández, had purchased two ounces of cocaine from Aquino and González–Medina on February 7, 2007. Rodríguez's sworn affidavit of February 9, 2007, was then used to support complaints charging Aquino and González–Medina with state drug-related offenses, and arrest warrants were issued against them in July 2007.

The July Incident

The arrest warrants for Aquino and González–Medina were to be executed on July 5, 2007. Santos assigned the arrest warrants related to the February incident to Agent Bernie González–Vélez (“González–Vélez”), who had joined the Arecibo Drug Division earlier that year. According to González–Vélez's trial testimony,³ Santos, Plaza, and two other police agents developed a plan whereby González–Vélez and Rodríguez were to conduct a buy-bust operation. Pursuant to the plan, González–Vélez would go to Aquino's house with Rodríguez to buy some drugs from Aquino. After paying for the drugs, González–Vélez would execute the arrest warrant issued as a result of the February complaint. However, Hernández again got cocaine prior to the planned buy-bust. Earlier that day, Hernández obtained fifty baggies of cocaine from Eggy and Agent José González (a/k/a “Tuti”), who also worked at the Arecibo Illegal Weapons Unit of the Puerto Rico Police. Both Eggy and Tuti told Hernández to plant the cocaine on Aquino. According to Hernández's trial testimony, Plaza called him on July 5, 2007, and told him to purchase fifty bags of cocaine from Aquino.

Hernández consumed three to five of the fifty baggies of cocaine that Eggy and Tuti had given him, and then met with González–Vélez and Rodríguez. Hernández gave the remaining forty-five to forty-seven baggies of cocaine to Rodríguez, and told him that he had purchased the drugs from Aquino earlier that day. Hernández told González–Vélez and Rodríguez that they still needed to pay Aquino for the drugs. Because Hernández had already gotten the drugs, the original buy-bust plan was changed. The officers then planned to pay Aquino for the cocaine that he had allegedly sold Hernández earlier that day, and then arrest him after making the payment. When González–Vélez and Rodríguez suggested that Hernández go with them to pay Aquino for the drugs, Hernández refused. Instead, he requested to be taken home because he feared that Aquino would label him as a snitch and kill him. González–Vélez then radioed the patrol car where Santos and Plaza were and informed them that Hernández did not want to go to Aquino's house and wanted to be taken home instead. Plaza told González–Vélez to take Hernández home, which he did. At no time did González–Vélez tell Plaza that Hernández had already “purchased” the drugs from Aquino or that they already had the drugs.

After dropping Hernández at his house, Rodríguez and González–Vélez arrived at Aquino's house to execute the arrest warrant. There were no other police officers at Aquino's house, but other officers had agreed to be nearby. Rodríguez exited the car and called for Aquino. When Aquino came out of his house, Rodríguez told him that he was there to pay for the drugs he had given earlier to Hernández, but Aquino denied any knowledge of the drugs. Rodríguez then identified Aquino by taking off his watch—a prearranged signal—and returned to the car while Aquino went back into his house. González–Vélez then exited the car and called Aquino. When Aquino once again came out of his house, González–Vélez arrested him and searched him, but did not find anything illegal. González–Vélez then radioed Santos, Plaza, and two other agents who were all together in the same police car and told them that “the target had been arrested.” He did not mention anything about the drugs. Santos, Plaza, and the other two agents arrived at Aquino's house in less than ten minutes. Other officers arrived shortly thereafter. Immediately upon his arrival Plaza asked González–Vélez for the “bundle” of cocaine. González–Vélez then gave Plaza the drugs that Rodríguez had given him. Plaza took the “bundle” and told Aquino, “This is yours.” Aquino denied that it was his. The officers then searched Aquino's house for approximately twenty minutes but did not find anything illegal. All they found was over $2,000 in a drawer, which González–Vélez seized. Aquino was taken to the police station in a van, while González–Vélez left with Rodríguez.

Later that day, Plaza arrested Hernández at his house, though his arrest was fake.⁴ He was also taken to the police station and left in a holding cell until the next day, when he was released on bail, which was paid for by Plaza.

After all the arrests were made on July 5, 2007, the agents went back to the police station. There, González–Vélez asked Santos and Plaza what would happen because the drugs had not been seized from Aquino and the buy-bust had not taken place. Santos and Plaza instructed González–Vélez to tell the district attorney that he had seized the drugs from Aquino's person. González–Vélez told Santos and Plaza that “the facts didn't occur like that,” to which they responded that “it was Aquino's drugs, submit the case like that.” González–Vélez did exactly as Santos and Plaza had instructed. He told the district attorney that he had a search warrant for Aquino and that when he arrested and searched him, he seized drugs and money from Aquino.⁵

In September 2007, in collaboration with the Federal Bureau of Investigation (“FBI”),⁶ González–Vélez had three recorded conversations with Santos about the July 5 incident. In these conversations, Santos—unaware that she was being recorded—told González–Vélez that he should stick to “the same story” he previously told the...