United States v. Vega

Decision Date24 June 2016
Docket NumberNo. 10-3083,C/w 10-3084,10-3083
Citation826 F.3d 514
PartiesUnited States of America, Appellee v. Juan Jose Martinez Vega, Erminso Cuevas Cabrera, Appellants.
CourtU.S. Court of Appeals — District of Columbia Circuit

Richard K. Gilbert, appointed by the court, argued the cause for appellant Martinez Vega. Manuel J. Retureta, Washington, DC, and Gary M. Sidell, appointed by the court, argued the cause for appellant Cuevas. With them on the briefs was Kristen Grim Hughes.

Michael A. Levy, Assistant U.S. Attorney, argued the cause for appellee. On the brief were Ronald C. Machen Jr., U.S. Attorney at the time the brief was filed, and Randall W. Jackson and Brian A. Jacobs, Assistant U.S. Attorneys. Elizabeth Trosman, Assistant U.S. Attorney, entered an appearance.

Before: Brown and Millett, Circuit Judges, and Ginsbur g, Senior Circuit Judge.

Per Curiam:

Juan Jose Martinez Vega and Erminso Cuevas Cabrera were indicted with more than 50 other individuals for conspiring to commit crimes associated with the importation, manufacture, and distribution of cocaine into the United States. To date, only Martinez Vega, Cuevas, and one other have stood trial. See United States v. Garcia , 757 F.3d 315 (D.C. Cir. 2014).

The indicted individuals were allegedly affiliated with the Fuerzas Armadas Revolucionarias de Colombia (“FARC”), a “left-wing guerilla group that has waged a violent insurgency against Colombia's government for much of the last fifty years.” Id. at 316. Though it initially eschewed the drug trade as counterrevolutionary, the FARC embraced the manufacture and exportation of cocaine in the early 1980s as a lucrative means to fund its increasingly ambitious military objectives. John Otis, The FARC and Colombia's Illegal Drug Trade , Wilson Center (Nov. 2014), at 3, https://www.wilsoncenter.org/sites/default/files/Otis_FARCDrugTrade2014.pdf. By the 1990s and early 2000s, after the breakup of the famous Medellín and Cali cartels, the FARC began to consolidate its control over the coca fields and cocaine production. Id. at 4.

Martinez Vega and Cuevas allegedly occupied different roles within the cocaine trade. Martinez Vega's role primarily consisted of exporting cocaine and importing arms. Throughout his association with the FARC, he was allegedly responsible for exporting at least 11,000 kilograms of cocaine and with supplying the FARC with 250 tons of ammunition, explosives, and weapons. Cuevas, on the other hand, allegedly operated a large cocaine laboratory that produced thousands of kilograms of cocaine paste each week. In addition to supervising that operation, Cuevas allegedly met with FARC officials on several occasions to oversee the shipment of coca base to his laboratory.

After their capture and extradition to the United States, Martinez Vega and Cuevas were tried for and convicted of violating Title 21 of the United States Code, Sections 812, 952, 959, 960, and 963. Taken together, these sections provide for the punishment of any person who knowingly or intentionally conspires to import, manufacture, or distribute five kilograms or more of cocaine into the United States. The district court then sentenced Martinez Vega and Cuevas to 330 and 348 months' imprisonment, respectively. These defendants come before us now appealing their convictions and sentences.

Three categories of issues are raised in this appeal: the joint issues, the Martinez Vega-specific issues, and the Cuevas-specific issues. Both Martinez Vega and Cuevas challenge the sufficiency of the evidence, the mens rea jury instructions, and the district court's denial of their motions alleging prosecutorial misconduct. Martinez Vega challenges several evidentiary rulings pertaining to identification evidence, as well as the application of a “managerial” sentencing enhancement. Finally, Cuevas challenges the admission of certain evidence, the adequacy of the district court's curative instruction to the jury regarding stricken testimony, the district court's refusal to permit cross-examination about witnesses wearing ankle monitoring devices, and its application of certain sentencing enhancements. Detailed discussions of the facts, evidence, and standards of review will be set forth as necessary to address each issue Defendants raise.

I. Joint Issues

Martinez Vega and Cuevas together raise three arguments for vacating their convictions: (i) the mens rea evidence was insufficient; (ii) the mens rea jury instructions were misleading; and (iii) the Government committed prejudicial prosecutorial misconduct. We address each in turn.

A. Sufficiency of Evidence

Defendants argue the evidence at trial was insufficient to prove the mens rea element of their charged offense; that they knew or intended the cocaine would end up in the United States. See 21 U.S.C. § 952(a) ; id. § 959(a); id. § 960(a)(1), (a)(3). In their view, not only did the Government fail to put on any direct evidence of mens rea , the proffered circumstantial evidence doesn't justify the inference that either of them knew the destination of the cocaine.

Challenging a jury verdict for insufficient evidence carries with it an “exceedingly heavy burden.” United States v. Booker , 436 F.3d 238, 241 (D.C. Cir. 2006) ; see also United States v. Morris , 576 F.3d 661, 666 (7th Cir. 2009) (describing the burden as a “nearly insurmountable hurdle”). To prevail, Defendants must convince the court that no “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Stadd , 636 F.3d 630, 636 (D.C. Cir. 2011). We review sufficiency-of-the-evidence claims “in the light most favorable to the government, drawing no distinction between direct and circumstantial evidence, and giving full play to the right of the jury to determine credibility, weigh the evidence and draw justifiable inferences of fact.” United States v. Dykes , 406 F.3d 717, 721 (D.C. Cir. 2005).

We conclude the jury's mens rea determinations were justified by sufficient evidence. The Government demonstrated several facts from which a rational juror could reasonably infer intent or knowledge that the cocaine would end up in the United States. First, it demonstrated that at least half of the cocaine produced in Colombia is exported to the United States, establishing a substantial probability that at least some of the 11,000 kilograms of cocaine Martinez Vega trafficked or the thousands of kilograms of cocaine paste Cuevas manufactured each week was headed to the United States. Second, several witnesses confirmed that, among the FARC rank-and-file, it was a widespread and generally known fact that the cocaine they handled was destined for the United States. Maria Santiago and Hernan Santiago each testified that the destination of these drugs (the United States) was a topic of discussion among Cuevas's subordinates at the laboratory. And Alexis Perez offered similar testimony with respect to Martinez Vega, that it was “something normal to hear the comments that the coke was coming to the United States because it was said that it is the country that most consumes it.” These testimonies justify an inference that those within both Martinez Vega's and Cuevas's operations were generally aware of the intended destination. Third, Martinez Vega and Cuevas had high-level roles in their association with the FARC, which, in conjunction with the previous point, justifies an inference that, given their rank within the organization, they were even more likely to know the destination than their subordinates. Martinez Vega was a leader within the 16th Front of the FARC—he was an important enough leader that the FARC provided security as he conducted his operations. Cuevas was the “general administrator” of a large cocaine laboratory where he supervised about 80 workers and met with FARC officials to coordinate product deliveries.

These data points justify the jury's inferences that both Martinez Vega and Cuevas knew or intended the drugs would end up in the United States. This is not a close question. In fact, in United States v. Martinez, this court upheld a conviction for conspiracy to import cocaine into the United States against an insufficiency challenge based on evidence that closely mirrors the evidence in this case. 476 F.3d 961, 963 (D.C. Cir. 2007). First, a former DEA Agent testified, based on his extensive experience, that “almost every drug operation that transports Colombian cocaine by land through Central America intends to import the cocaine into the United States.” Id. at 969. Second, there was direct evidence that “many of the lower-level individuals involved with the ... shipment of cocaine knew [it] was headed to the United States.” Id. And third, Martinez “supervised many key aspects of the international transportation of this massive shipment of cocaine.” Id. at 968.

In response, Defendants stress a lack of direct evidence of knowledge or intent, but that emphasis is unavailing. Our review of insufficiency claims treats all evidence—direct or circumstantial—the same. See Dykes , 406 F.3d at 721. Moreover, this argument carries even less weight considering their insufficiency claim alleges a lack of direct mens rea evidence. In “most cases in which the defendant's state of mind is at issue, it may be near impossible to establish the requisite mens rea through direct evidence,” and therefore proof must be inferred from circumstantial evidence instead. United States v. Schaffer , 183 F.3d 833, 843 (D.C. Cir. 1999). As we have shown, the proffered circumstantial evidence is sufficient to support the jury's guilty verdicts, and accordingly, we reject Defendants' insufficiency claim.

B. Jury Instructions

Martinez Vega and Cuevas also challenge the district court's jury instructions.

Specifically, they claim the instructions failed to adequately convey that Defendants “personally intended the cocaine be imported into the United States or personally knew the cocaine...

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