UNITED STATES of America, Appellee, v. Wanda LLINAS, Defendant, Appellant.
No. 01-1799.
United States Court of Appeals, First Circuit.
Decided June 18, 2004.
Heard May 8, 2004.
In light of these legal errors, and in the absence of a reasoned finding that Hernandez-Barrera did not suffer past persecution or that the INS met its burden of overcoming a regulatory presumption of future persecution based on past persecution, we remand. See El Moraghy, 331 F.3d at 204 (remanding to the BIA where neither the BIA nor the IJ determined whether the asylum applicant had suffered past persecution); Manzoor, 254 F.3d at 349 (remanding to the BIA where the Board erred in allocating part of the INS‘s evidentiary burden to the asylum applicant); Gailius, 147 F.3d at 47 (noting that remand is the appropriate remedy “when a reviewing court cannot sustain the agency‘s decision because it has failed to offer legally sufficient reasons for its decision“).14
IV.
For the reasons stated above, the order of the BIA is vacated, and the case is remanded to the BIA for further proceedings consistent with this opinion.
So ordered.
Thomas F. Klumper, Assistant United States Attorney with whom H.S. Garcia, United States Attorney and Sonia I. Torres-Pabon, were on brief, for appellee.
Before BOUDIN, Chief Judge, LIPEZ and HOWARD, Circuit Judges.
HOWARD, Circuit Judge.
Following a five-day trial, a jury convicted defendant-appellant Wanda Llinas of both conspiracy to possess narcotics with intent to distribute and intentional use of a
I.
We recite the relevant facts in the light most favorable to the verdicts. See United States v. Echeverri, 982 F.2d 675, 676 (1st Cir. 1993).
Daniel Sanchez and Wilson Martinez Cotto became friends in or about January 2000, and, within a few days, Sanchez began selling heroin to Martinez for distribution. Soon thereafter, Sanchez told Martinez about a recent encounter he had had with a man called “Guillermo,” who had proposed that Sanchez visit Puerto Rico to conduct some drug deals. Martinez was interested. Neither Sanchez nor Martinez was aware that Guillermo was a government informant.
In June 2000, Sanchez and Martinez traveled together to Puerto Rico, where Sanchez was to introduce Martinez to Guillermo. For his part, Martinez tended to the lodging details, initially arranging for the pair to stay at a relative‘s house. After arriving in Puerto Rico, however, these initial arrangements fell through. In search of a place to stay, Martinez then phoned Llinas‘s stepfather, a family friend, and arranged for the men to stay at his house. Llinas lived with her stepfather.
On June 16th, Llinas drove Sanchez and Martinez to a nearby bakery. While Llinas waited in her car with her stepfather, Sanchez and Martinez entered the bakery and met with Guillermo and his partner, Carrasquillo, an undercover agent for the Drug Enforcement Administration. There, the men negotiated a transaction in which Martinez agreed to provide, on a later date, two kilograms of heroin in exchange for eleven kilograms of cocaine.
Approximately one-half hour after entering the bakery, Sanchez and Martinez exited, and Llinas drove them back to her stepfather‘s home. Having earned his commission by introducing Martinez to Guillermo, Sanchez departed Puerto Rico.
Martinez did not hear from Carrasquillo until June 30th, when they spoke via cellular telephone. During the course of this coded-language conversation, Martinez informed Carrasquillo that “at hand, I have one and a half ... then by Sunday, I‘ll have another two ... it would be three and a half.” The men agreed to exchange the drugs—or, as Martinez put it, “cook the goose“—on July 3rd.1
On the morning of July 3rd, Martinez contacted Carrasquillo to arrange the meeting for that day. A few hours later, in Llinas‘s presence, Martinez again phoned Carrasquillo and informed him that he “went by the office and [] picked the papers up there with the, the, stamps on them and all that....” The men then agreed to meet at the parking lot of El Comandante racetrack between 4:00 and 4:30 p.m. At this point in the conversation, Martinez handed Llinas the cellular phone to receive directions to the racetrack.
According to Llinas, Martinez had asked her to drop him off at the racetrack, where he was to meet a friend who would pick him up. After dropping Martinez off, Lli-
On the way to the racetrack, Llinas and Martinez picked up Arroyo in a rental car that Arroyo allegedly had rented for the weekend. They subsequently made a quick stop at a supermarket to purchase provisions for the beach. While Llinas and Arroyo were inside, Martinez waited in the parking lot and made two additional calls to Carrasquillo.
Having completed this errand, the trio set off for the rendezvous at the racetrack. Martinez was driving; Arroyo was in the passenger seat and Llinas was in the back. Next to Llinas in the backseat were two cellular telephone boxes stacked inside a large plastic bag. The boxes contained plastic bags filled with 1787 grams of heroin.
At approximately 4:30 p.m., they arrived at the racetrack‘s parking lot. Martinez parked the car, exited, and approached Carrasquillo. Llinas and Arroyo remained inside. According to Llinas‘s testimony, Martinez had asked them to wait “because he was going to decide where he was going with his friend.”
Upon agreeing with Carrasquillo to proceed with the exchange, Martinez walked over to the car, opened the rear door, and asked Llinas to hand him the bag next to her. According to Llinas, after she handed Martinez the bag that she believed contained cellular telephones, she “asked him whether we could leave yet and he said no because the friend that was going to pick him up hadn‘t arrived yet.” Carrasquillo and Martinez then moved to the back of the car to inspect the bag‘s contents. Once certain that the boxes contained a heroin-like substance, Carrasquillo signaled for the arrest of Martinez, Llinas, and Arroyo.
On July 26, 2000, Llinas was arraigned on a three-count indictment. Count I charged Llinas, Arroyo and Martinez with conspiracy with the intent to possess and distribute two kilograms of a substance containing a detectable amount of heroin and five kilograms of a substance containing a detectable amount of cocaine, in violation of
On November 21, 2000, a joint trial began; Llinas and Arroyo were co-defendants.2 On November 28, 2000, a jury found Llinas guilty on Counts I and III and not guilty on Count II. Arroyo was acquitted on all counts. On April 24, 2001, the district court sentenced Llinas to concurrent prison terms of 123 months for Count I and 24 months for Count III, three years of supervised release, and $200 in special assessments.
This appeal followed.
II.
We are presented with two issues on appeal: (1) whether there was sufficient evidence to support Llinas‘s convictions; and (2) whether the district court erred when it allowed the government to introduce certain documents and testimony, neither of which were noticed to Llinas as
Given these separate issues, two standards of review apply. First, in deciding sufficiency challenges, “we review all the evidence, direct and circumstantial, in the light most favorable to the prosecution, drawing all reasonable inferences consistent with the verdict, and avoiding credibility judgments, to determine whether a rational jury could have found guilt beyond a reasonable doubt.” United States v. Baltas, 236 F.3d 27, 35 (1st Cir. 2001); see also United States v. Ruiz, 105 F.3d 1492, 1495 (1st Cir. 1997) (noting that “we review de novo the defendants’ challenge to the evidentiary sufficiency of their convictions, construing the evidence in the light most favorable to the government“). As to the second issue, because the district court‘s decision to admit the alibi-rebuttal evidence was based on its construction of
A. Sufficiency of the Evidence
Llinas‘s principal argument on appeal is that her convictions should be reversed because there was insufficient evidence at trial to sustain either (1) a finding that she conspired to possess narcotics with the intent to distribute or (2) a finding that she used a communication device to facilitate such a conspiracy. We disagree.
(1) Conspiracy Count
Llinas contends that “the evidence taken as a whole failed to establish her knowing, intentional participation in the drug conspiracy ... beyond a reasonable doubt....” More specifically, she argues that, “[a]side from the total lack of evidence presented by the government concerning her knowledge and criminal intent[,] there is a substantial amount of evidence that established that [she] did not know about [the conspiracy].”
To prove the elements of the crime of conspiracy, the government must show the existence of a conspiracy, the defendant‘s knowledge of the conspiracy, and the defendant‘s voluntary participation in the conspiracy. More specifically, to establish that a defendant belonged to and participated in a conspiracy, the government must prove two kinds of intent: intent to agree [with her coconspirators] and intent to commit the substantive offense. Such proof may consist of circumstantial evidence, including inferences from surrounding circumstances, such as acts committed by the defendant that furthered the conspiracy‘s purposes. The government need not prove that a co-conspirator knew all of the details or participated in all of the objectives of the plan. United States v. Gomez-Pabon, 911 F.2d 847, 852-53 (1st Cir. 1990) (citations and quotation marks omitted); United States v. Nelson-Rodriguez, 319 F.3d 12, 27 (1st Cir. 2003) (listing the “three basic components of a drug conspiracy“).3
It is clear from the record that Llinas engaged in activity that would be illegal had she known about the Sanchez-Martinez conspiracy. For example, Llinas testified that, on the day of the exchange, she picked up the boxed heroin from the backseat of the car and handed it to Martinez. This evidence alone arguably is sufficient to prove voluntary participation in the conspiracy, including an intent to commit the underlying substantive offense, if Llinas knew that drugs were in the box.
Llinas‘s conviction, then, turns on the question of when, if ever, she gained knowledge of the conspiracy. At trial, no direct evidence was presented on this issue; instead, as is permissible, the jury inferred knowledge from the government‘s circumstantial evidence. See Gomez-Pabon, 911 F.2d at 853 (“[P]roof may consist of circumstantial evidence, including inferences from surrounding circumstances, such as acts committed by the defendant that furthered the conspiracy‘s purposes.” (citations omitted)); see also United States v. Valerio, 48 F.3d 58, 63 (1st Cir. 1995) (noting that “the government‘s proof may lay entirely in circumstantial evidence” (citation omitted and emphasis retained)).
Although the evidence is not overwhelming, we conclude that the jury, having been properly instructed,5 could have found that the evidence was sufficient to prove the requisite knowledge beyond a reasonable doubt. The inference that Llinas was, in fact, a knowing participant in the conspiracy is adequately supported by substantial circumstantial evidence together with evidence that Llinas testified untruthfully at trial.
First, there was substantial circumstantial evidence suggesting that Llinas knew about the conspiracy. This evidence can be summarized as follows: While in Puerto Rico, Sanchez and Martinez stayed with Llinas in the same house; despite her testimony to the contrary,6 Llinas drove Sanchez and Martinez to their initial meeting with Carrasquillo, waited in the car approximately one-half hour, and then drove them back to her stepfather‘s home; Llinas was present when Martinez phoned Carrasquillo and spoke about the drug exchange (albeit in coded language); on the day of the drug exchange, Martinez handed Llinas the telephone so that she could receive directions to the racetrack; Llinas agreed to provide the transportation to the racetrack in her boyfriend‘s rental car; after Llinas arrived at the racetrack, an undercover agent allegedly observed her “moving [her] head[] like looking for something“;7 when asked, Llinas handed Martinez the drugs, which had been hid-
Llinas responds to the government‘s evidence as follows:
It is obvious that from the evidence taken as a whole ... that [Martinez] used [Llinas] to provide him with transportation without [Llinas] having knowledge that he was engaged in narcotics trafficking with Daniel Sanchez. Whatever actions [Llinas] took in providing a ride to [Martinez] and Sanchez on June 16 and July 3, [they] were carried out without criminal knowledge and intent.
We are unconvinced. While “mere presence at the scene of the crime” or “mere association with conspirators” is not enough to establish guilt, see Gomez-Pabon, 911 F.2d at 853, “the mere presence defense is not so ubiquitous as to envelop every drug-trafficking case in which the government lacks direct evidence of a defendant‘s complicity.” Echeverri, 982 F.2d at 678. See also United States v. Flores-Rivera, 56 F.3d 319, 324 (1st Cir. 1995) (“Mere presence at the scene and close association with those involved are insufficient factors alone; nevertheless, they are relevant factors for the jury.” (quoting United States v. Sanchez, 961 F.2d 1169, 1174 (5th Cir. 1992)) (emphasis retained)). “As we repeatedly have recognized, a jury is free to rely on its common sense and may infer that criminal conspirators do not involve innocent persons at critical stages of a drug deal.” United States v. DiMarzo, 80 F.3d 656, 661 (1st Cir. 1996) (citations omitted). “[S]uch is not normally the conduct that one would expect of conspirators engaged in conduct which by its nature is kept secret from outsiders.” United States v. Smith, 680 F.2d 255, 260 (1st Cir. 1982).
Here, of course, Llinas was more than merely present. On at least one occasion, Llinas provided the necessary transportation. And, as the evidence shows, her usefulness extended much further than the car. First, Llinas alone had the directions to the racetrack; but for her guidance, it is likely that Martinez never would have arrived. Second, when asked, Llinas picked up the heroin that was next to her on the backseat and handed it to Martinez; that the drugs were concealed within boxes is, of course, not enough to require a finding of reasonable doubt as to knowledge, since the jury was entitled to infer knowledge from the other circumstantial evidence.
In addition to evidence of Llinas‘s affirmative involvement in the conspiracy, the government also presented evidence showing what Llinas did not do. For example, notwithstanding her testimony that she planned to drop Martinez off at the racetrack and then leave for the beach, neither Llinas nor her boyfriend ever moved from their respective positions in the car to take Martinez‘s place in the driver‘s seat; instead, they remained at the racetrack and waited for Martinez. Having observed
On facts analogous to these, where the defendant-driver alleged not only that “he had merely given [a conspirator] a ride and [had] not participate[d] in the drug sale” but also that “there was no evidence that he could see what was in the box,” we noted that “the jury could reasonably have inferred that under these potentially dangerous circumstances, an insider rather than an outsider would chauffeur the dealer.” United States v. Olivo-Infante, 938 F.2d 1406, 1409 (1st Cir. 1991). So too in this case. See Echeverri, 982 F.2d at 678 (“[W]e require only that a jury‘s verdict be supportable, not that it be inevitable....“).
Llinas, however, argues that “the present case is akin to several appeals where this court has not hesitated to reverse convictions on sufficiency grounds where the government failed to establish that the actions taken by the defendant were made with criminal knowledge and intent” (citing United States v. Francomano, 554 F.2d 483 (1st Cir. 1977); United States v. Mehtala, 578 F.2d 6 (1st Cir. 1978); United States v. Ocampo, 964 F.2d 80 (1st Cir. 1992); Valerio, 48 F.3d 58; United States v. de la Cruz-Paulino, 61 F.3d 986 (1st Cir. 1995); United States v. Clotida, 892 F.2d 1098 (1st Cir. 1989)).
These cases are inapposite because, unlike in this case, the factfinder did not have evidence suggesting that the defendant had lied on the witness stand. In Francomano, for example, we based our decision to vacate the conviction on findings that “the Government made no case-in-chief and no testimony offered by the [defendants] strengthen[ed] the Government‘s case.” Id. at 487 (emphasis added). We noted that, while a jury may sometimes infer guilt from the mere fact that the defendant lied on the stand, “we [could] detect no inconsistencies or other appropriate basis for such an inference here.” Id. at 487-88.
Here, even if we were to assume that the government‘s circumstantial evidence, taken alone, was insufficient to support an inference of knowledge, we cannot ignore the strong possibility that the jury determined that Llinas had lied on the witness stand. At trial, Llinas testified that she could not have driven Sanchez and Martinez to their meeting with Carrasquillo because she had been working on the day in question. Not only did the government present evidence in rebuttal suggesting that Llinas had not worked that day, it had also presented Sanchez‘s testimony that Llinas had driven them to their meeting and Carrasquillo‘s corroborating testimony that a woman fitting Llinas‘s description had driven the car.
Having reason to doubt Llinas‘s credibility, the jury properly could have disregarded all of Llinas‘s testimony, including the beach-weekend explanation for her presence at the racetrack. See United States v. Batista-Polanco, 927 F.2d 14, 18 (1st Cir. 1991) (noting that “the district court‘s well-supported finding that appellant gave materially false testimony ... provided a basis for discrediting other exculpatory testimony given by [appellant] in [her] own defense” (citations omitted)).
Moreover, the jury properly could have used Llinas‘s testimony, in conjunction with the government‘s circumstantial evidence, to bolster its inference of knowledge. See United States v. Hadfield, 918 F.2d 987, 999 (1st Cir. 1990) (finding that an inference of guilt could have been fur-
In sum, having thoroughly examined the record, we conclude that the jury had sufficient evidence from which to draw an inference of knowledge.8
(2) Facilitation Count
Llinas next argues that “the evidence presented by the government was [in]sufficient to establish that [she] ... knowingly and intentionally used a telephone facility to promote [the] conspiracy.” She asserts that “the same analysis ... as to the conspiracy count applies in the use of a telephone facility charge.”
The applicable criminal statute,
Because it is clear from the record that Llinas engaged in activity that would be illegal had she known about the Sanchez-Martinez conspiracy, see, e.g., United States v. Tuesta-Toro, 29 F.3d 771, 776 (1st Cir. 1994) (finding that two telephone calls between co-conspirators to arrange a drug deal was enough to prove facilitation); United States v. Cordero, 668 F.2d 32, 43 & n. 16 (1st Cir. 1981) (rejecting defendant‘s two-pronged argument that, because she spoke only with a government agent and because she merely was receiving rather than placing the call, she could not have violated
B. Rule 12.1
Finally, Llinas argues that her convictions should be set aside because “the district court committed reversible error in permitting the government to present alibi rebuttal testimony and documents[, neither of] which were [] notified to appellant after she served her notice of alibi as requested by the government pursuant to
When triggered,
(a) Upon written demand of the attorney for the government [,] the defendant shall serve ... upon the attorney for the government a written notice
of the defendant‘s intention to offer a defense of alibi. Such notice by the defendant shall state the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon whom the defendant intends to rely to establish such alibi. (b) Within ten days thereafter, ... the attorney for the government shall serve upon the defendant ... a written notice stating the names and addresses of the ... witnesses to be relied on to rebut testimony of any of the defendant‘s alibi witnesses.
Here, the government triggered Llinas‘s obligation under
Having fulfilled her obligation under
At trial, Llinas herself testified that she had not driven Martinez and Sanchez to the bakery on the 16th—a story that defense counsel attempted to corroborate by offering into evidence a paycheck stub that allegedly placed Llinas at work on the day in question. During a sidebar conference following these events, the government informed defense counsel that it had obtained payroll records from the supermarket that cast serious doubt on the validity of Llinas‘s testimony. Despite objection, the government was allowed to introduce these records as impeachment evidence through the testimony of the supermarket‘s accountant, who was called to authenticate the documents.10
On appeal, Llinas contends that both the payroll records and the accountant‘s testimony should have been excluded because, had she been aware of the government‘s
At the outset, we note that, by its own terms,
The thornier issue is whether the accountant‘s testimony falls within the purview of
III.
For the reasons stated above, the convictions are affirmed.
BOUDIN, Chief Judge, with whom LIPEZ, Circuit Judge, joins (concurring).
This is an unusual case and a troubling one. But for Llinas’ false testimony, this would be an instance in which the defendant‘s conduct was as consistent with innocence as with guilt. Assuredly, Llinas’ actions were enough to constitute participation: she drove the car, got directions, handed over the drugs. But if she did not know that this was part of a drug transaction, she was not guilty of a crime. The evidence of knowledge is very thin.
Had the defense rested without putting on a case, any conviction that followed would have been reversed by the panel. Cf., e.g., United States v. Corchado-Peralta, 318 F.3d 255, 259-60 (1st Cir. 2003). The line between reasonable inference and speculation is very hard to draw; but up to the point when Llinas took the stand, there was little to distinguish her from her boyfriend, whom the jury properly acquitted. She had apparently been seen on a prior occasion waiting for Martinez, but this was consistent with the fact that he was also a guest of her father and added little to the government‘s evidence of knowledge.
Admittedly, the government‘s direct case against Llinas went slightly beyond “mere presence.” Llinas was present during the coded-language telephone conversation between Martinez and the undercover agent that is described in the panel
Nevertheless, when Llinas took the stand and then lied (or so the jury could have found), she gave the jury the extra evidence it needed and the conviction was not irrational. Of course, her denial of presence at a secondary event could have been the product of pure fear or misrecollection, but the jury is permitted to draw an inference of guilt from a deliberate false alibi. See, e.g., United States v. Hadfield, 918 F.2d 987, 999 (1st Cir. 1990), cert. denied, 500 U.S. 936 (1991). Added to the faintly suspicious circumstances, a jury could rationally convict, although this stretches “beyond a reasonable doubt” to its limits. Federal drug cases in which strong doubts as to guilt linger on appeal are a rarity.
Llinas unquestionably has a potential claim under
The error was surely prejudicial under the governing Strickland test. See Strickland v. Washington, 466 U.S. 668, 687-88 & 694 (1984). Indeed, without the false alibi, Llinas’ conviction could not properly be sustained. But background circumstances could provide some explanation for counsel‘s action: perhaps Llinas insisted on testifying despite counsel‘s warning or perhaps the fact that the alibi could so easily be undermined would not have been apparent to a lawyer making a reasonable investigation. It is because of such uncertainties that here, as in the ordinary case, the competence issue cannot be resolved on direct appeal. See, e.g., United States v. Padilla-Galarza, 351 F.3d 594, 600-01 (1st Cir. 2003).
If and when Llinas does file a
Notes
A: But you have got to remember that always, always in all these transactions, when they arrive in a vehicle, they all do the same. They are always looking around at everything, and I never write those details in a [report].
Q: Well, sir, is that an assumption you are making because you thought that the people inside the car knew what was going on?
A: Well, based on my experience, I know.
Q: Exactly. That‘s what you believe is the pattern of behavior. Is that correct ...?
A: Yeah, yeah.
The Court: Why didn‘t you provide the name of this witness to counsel?
The Government: At the time defendant took the stand and decided to tell that she did work on the 16th of June, at that point the matter was triggered, so at this point in time, in open court and for the record, I told Brother Counsel and I showed him the—a photocopy of the books of [the supermarket]. And I immediately told my case agent, ‘Go get this man, because I am going to impeach this witness.’
The Court: Well, [defense] counsel, the statement came out in open court from her, not from your [listed alibi] witness. You see? It probably could have been different had you presented your alibi witness and then he—the Government might be prevented from bringing another witness because he didn‘t give that name to you. But in this case, it is the defendant herself who said, ‘Yes, I worked on the 16th.’ You presented a stub to try to show that she worked on that day, and I recall that I said, ‘Well, this doesn‘t show the days she worked. Merely in that pay period she earned whatever amount is there.’ But it doesn‘t show days of work nor specific hours worked on specific days. So the Government is entitled to rebut that evidence.