UNITED STATES OF AMERICA, Appellee, v. JESÚS PABELLÓN RODRÍGUEZ; JIMMY CARRASQUILLO-RODRÍGUEZ, Defendants, Appellants.
Nos. 11-2479, 11-2492
United States Court of Appeals For the First Circuit
August 16, 2013
Before Lynch, Chief Judge, Torruella and Lipez, Circuit Judges.
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Jay A. García-Gregory, U.S. District Judge]
Michael C. Bourbeau, with whom Bourbeau & Bonilla, LLP, was on brief, for appellant Carrasquillo-Rodríguez.
Justin Reid Martin, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Veléz, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Julia M. Meconiates, Assistant United States Attorney, were on brief, for appellee.
The government concedes that Carrasquillo‘s conviction on count four (possession of a firearm with an obliterated serial number) must be vacated for insufficient evidence. With that exception, we affirm the convictions and Carrasquillo‘s sentence. The evidence was sufficient to support the convictions. The error in the verdict form, though obvious, does not meet the stringent requirements of plain error.
I.
The facts, as supported by the record, are as follows. In December 2008, the DEA created a fictional drug trafficking organization in order to target groups engaged in international drug trafficking operations. The group consisted of three individuals: an informant from Colombia, an informant from the Dominican Republic known as “Cibaíto,” and DEA Task Force Officer Jesús Marrero. Marrero and Cibaíto played the parts of underlings
The group‘s marketing quickly paid off. On December 11, 2008, Marrero and Cibaíto met with Ramón González Duarte (“González“), a/k/a “Gigante,” at a restaurant in Santo Domingo. González indicated that he wanted to purchase ninety kilograms of pure cocaine from the fictional organization, and that he wanted Marrero to transport to Puerto Rico an additional sixty kilograms of cocaine that he would be purchasing from another source. González said that he worked for a man named Cagüitas, and that they had the capacity to distribute over 500 kilograms of cocaine per week, as Cagüitas controlled the drug traffic in Caguas, Puerto Rico and the surrounding towns, and also shipped substantial amounts to the continental United States, particularly New York.
Marrero was to deliver the ninety kilograms to González‘s cohort in Puerto Rico at a cost of $15,000 per kilo, plus a $2,000 transportation fee. He also agreed to transport González‘s independently purchased sixty kilograms, charging the same transportation fee of $2,000 per kilo. Marrero told González that he needed to know who would be picking up the shipment in Puerto Rico and paying him for the shipment. González stated: “I will
Despite their tentative agreement, Marrero never received the sixty kilograms that González had asked him to transport to Puerto Rico. On December 15, Marrero called Carrasquillo to inform him that he had returned from the Dominican Republic. Using coded language, Carrasquillo asked Marrero if he had received the drug cargo and was ready to exchange the drugs for money. The next day, Marrero called Cagüitas, who told him that he would be sending Carrasquillo to exchange cash for the drugs. Cagüitas put Carrasquillo on the phone, who told Marrero to meet him at the kiosks in Luquillo later that day.
When Marrero arrived at the kiosk, he met Carrasquillo and Carrasquillo‘s driver, Jiel Sánchez. Because Marrero had taken longer than Carrasquillo and his compatriots had expected, the unidentified people to whom Carrasquillo‘s organization was to sell the drugs were no longer willing to front the money, and would pay
Marrero, however, would not accept a credit for the transportation costs associated with the drugs. As Marrero had told them that the drugs cost $2,000 per kilo to ship, Carrasquillo would have to come up with $180,000 before he received the ninety kilos. Because of Carrasquillo‘s cash flow problems, the parties agreed that Marrero would give Carrasquillo the drugs in a series of smaller transactions. He would hand off the first thirty kilos to Carrasquillo for the transportation cost of $60,000. Carrasquillo would then sell the drugs, returning a few hours later to give Marrero another $60,000 for a second thirty kilo bale. Only sixty kilos were to be transferred pursuant to this arrangement. The parties agreed that this transaction would take place the next day, December 17, at a kiosk in Luquillo.
Marrero arrived at the kiosk and sat down at a table. Shortly thereafter, Jiel Sánchez arrived with an individual unknown
Carrasquillo and Marrero had a conversation, during which Carrasquillo said that the money was on its way and repeatedly demanded that Marrero show him the drugs. Marrero told him that until he saw the money, Carrasquillo would not see the drugs. After making a few phone calls, Carrasquillo told Marrero that the money was at another kiosk, and asked Marrero to accompany him there. Because there was no surveillance at the second kiosk, Marrero refused, stating that the drugs were close by and he did not want to be separated from them. With both parties refusing to budge, Marrero terminated the meeting.
The next day, December 18, with the deal still uncompleted, Marrero called González to complain. Marrero objected to being surveilled by Sánchez and Pabellón, and generally objected to the presence of anyone but Carrasquillo at the meetings. González explained that the group was nervous because they had seen a car parked at the kiosk with people inside. Marrero and González
Later that same day, Marrero spoke to González‘s boss, Cagüitas. Marrero and Cagüitas agreed that Carrasquillo would meet Marrero in the parking lot of the Metropol restaurant in Fajardo later that day. Marrero insisted that Carrasquillo come alone. Before Marrero arrived at the restaurant, a DEA task force agent observed a blue Toyota pull into the parking lot, followed by a black Honda. The agent recognized the Honda: it was the same car that Sánchez and Pabellón had driven to the kiosk the day before. Marrero arrived and made his way to the Toyota, which Carrasquillo had driven to the meeting. Marrero asked Carrasquillo where the money was, and Carrasquillo removed a plastic bag containing $59,000 from underneath the driver‘s seat. After briefly examining the contents, Marrero called his surveillance to give the signal for the arrest.
After receiving Marrero‘s signal, DEA Task Force Agent Edwin Colón-García and two other officers moved in and arrested Carrasquillo. Meanwhile, Agent Jimmy Alverio-Hernández parked his vehicle in front of the black Honda and moved around to the Honda‘s front passenger side door, where he observed what appeared to be a weapon under a blue rag on the floor of the front passenger seat. After alerting his fellow officers about the gun, the agent ordered
On December 23, 2009, Carrasquillo, Pabellón, and González were indicted for conspiracy to possess with intent to distribute five kilograms or more of cocaine (count one) and conspiracy to import into the United States from the Dominican Republic five kilograms or more of cocaine (count two). Carrasquillo and Pabellón were also both charged with possession of a firearm in furtherance of a drug trafficking crime, specifically the alleged conspiracy (count three), and possession of a firearm with an obliterated serial number (count four). Pabellón alone was charged with being a felon in possession of a firearm (count five).
Defendants’ jury trial began on February 7, 2011. On February 11, the jury found defendants guilty on all counts. After the denial of motions for judgments of acquittal pursuant to
II.
Both defendants challenge the sufficiency of the evidence underlying certain of their convictions. Although he was convicted on counts one through four, Carrasquillo raises a sufficiency challenge only as to counts three and four (the firearm-related counts). Pabellón, on the other hand, raises no sufficiency challenge to the firearm-related counts on which he was convicted (counts three through five), focusing instead on the two drug conspiracy counts (counts one and two).
We review preserved challenges to the sufficiency of evidence de novo. United States v. Ihenacho, 716 F.3d 266, 279 (1st Cir. 2013). In analyzing such claims, we consider “‘whether any rational factfinder could have found that the evidence presented at trial, together with all reasonable inferences, viewed in the light most favorable to the government, established each element of the particular offense beyond a reasonable doubt.‘”
A. Carrasquillo
As noted, Carrasquillo challenges the sufficiency of the evidence underlying his convictions for possessing a firearm in furtherance of a drug trafficking offense in violation of
For a conviction under
Carrasquillo concedes that the evidence presented at trial “clearly established” a drug conspiracy between himself and González to (1) possess cocaine with intent to distribute, and (2) import cocaine into the United States from the Dominican Republic, thereby satisfying the first prong of the
First, there was sufficient evidence presented at trial to allow a rational trier of fact to conclude that Pabellón possessed the pistol during and in furtherance of the conspiracy. Pabellón and Sánchez escorted Carrasquillo‘s car into the parking lot of the Metropol restaurant, where Carrasquillo was to exchange $59,000 for 30 kilograms of cocaine. The loaded .45 caliber Ruger was directly below Pabellón‘s seat. Given Sánchez and Pabellón‘s prior countersurveillance activities at the December 17 kiosk meeting between Carrasquillo and Marrero, a rational factfinder could conclude that Sánchez and Pabellón attended the Metropol restaurant meeting to provide protection for Carrasquillo (and the $59,000) in furtherance of the drug conspiracy, and that the presence of the gun was directly related to the pair‘s security role. See United States v. Marin, 523 F.3d 24, 27 (1st Cir. 2008) (noting that “possession of a firearm to protect drugs or sales proceeds” is sufficient to establish the nexus between the firearm and the drug crime).
Second, there was sufficient evidence to support the finding that it was reasonably foreseeable to Carrasquillo that one of his co-conspirators in the escort vehicle would possess a firearm in furtherance of their drug conspiracy. In the first transaction alone Carrasquillo intended to pick up over $400,000 worth of cocaine. He was then going to sell at least $60,000 of the cocaine that same day, using those proceeds to acquire another thirty-kilo bale. “Because firearms are considered ‘common tools of the drug trade,’ a co-defendant‘s possession of a dangerous weapon ‘is foreseeable to a defendant with reason to believe that their collaborative criminal venture includes an exchange of controlled substances for a large amount of cash.‘” United States v. Thongsophaporn, 503 F.3d 51, 58 (1st Cir. 2007) (quoting United States v. Bianco, 922 F.2d 910, 912 (1st Cir. 1991)); see also United States v. Collazo-Aponte, 216 F.3d 163, 196 (1st Cir. 2000) (noting that “the illegal drug industry is, to put it mildly, a dangerous, violent business,” and that “[a]s a corollary, the use of firearms is foreseeable in trafficking offenses involving substantial quantities of drugs” (internal quotation marks omitted)), vacated on other grounds, 532 U.S. 1036 (2001). The quantity of both the cash and the drugs that Carrasquillo and his co-conspirators hoped to exchange during the course of their conspiracy was substantial by any measure.
Under these circumstances, a rational jury could have concluded that it was reasonably foreseeable to Carrasquillo that one of his co-conspirators would carry a firearm to the Metropol restaurant meeting. See Vázquez-Castro, 640 F.3d at 27. The district court therefore properly denied Carrasquillo‘s motion for a judgment of acquittal on count three.
B. Pabellón
As noted, Pabellón challenges the sufficiency of the evidence underlying his convictions for conspiracy to possess with intent to distribute a controlled substance (count one) and conspiracy to import a controlled substance (count two).
To prove the existence of a conspiracy, “the government must prove beyond a reasonable doubt: (1) that an agreement existed
Pabellón maintains that the evidence presented at trial “gives equal or nearly equal support to a theory of guilt and a theory of innocence.” He states that he is not mentioned in any of the recorded calls that were submitted into evidence, and that the only actual evidence linking him to the conspiracy is his presence in two places -- the kiosk where the original drug deal was supposed to take place, and the parking lot of the Metropol restaurant the next day, where Carrasquillo and Marrero were to make their second attempt at exchanging drugs for money.
Marrero‘s testimony supported the conclusion that Pabellón was conducting countersurveillance and providing protection to Carrasquillo at the December 17 meeting between Carrasquillo and Marrero. The same conclusion, based on Marrero‘s testimony and that of the other agents present at the bust, could have been drawn regarding Pabellón‘s presence at the Metropol restaurant. Although there was no evidence that Pabellón took part in the negotiations between Marrero and Carrasquillo/González
There is less evidence supporting Pabellón‘s importation conspiracy conviction, which requires that he knew the drugs were imported. See United States v. Geronimo, 330 F.3d 67, 72 (1st Cir. 2003) (“[T]o convict a principal actor of importing a controlled substance, the prosecution must prove that the accused knew the drugs were imported.“). Still, there is enough circumstantial evidence to permit a reasonable jury to conclude that Pabellón knew
In short, these pieces of circumstantial evidence, taken together, were sufficient to allow a reasonable jury to conclude that Pabellón knew that the drugs were imported. The district
III.
The defendants argue that the verdict form was faulty because it erroneously instructed the jury that, to find them not guilty, it had to find that they were innocent beyond a reasonable doubt. For example, the verdict form for Carrasquillo‘s count three charge reads as follows:
3. Count Three charges co-defendant Jimmy Carrasquillo-Rodríguez of knowingly possessing a firearm in furtherance of a drug trafficking crime. We the jury, unanimously find, beyond a reasonable doubt, that Jimmy Carrasquillo-Rodríguez, as to Count Three is:
___ Not Guilty ___ Guilty
This same format was used on the verdict form for each count as to each defendant.
We review the verdict form “as a whole, in conjunction with the jury instructions, in order to determine whether the issues were fairly presented to the jury.” United States v. Riccio, 529 F.3d 40, 47 (1st Cir. 2008). Because there were no objections below to this language in the verdict form, we review for plain error. United States v. González-Vélez, 466 F.3d 27, 34-35 (1st Cir. 2006). To satisfy this standard, defendants “must show: (1) that an error occurred (2) which was clear or obvious and which not only (3) affected the defendant‘s substantial rights, but also (4) seriously impaired the fairness, integrity, or public
The language in the verdict form constitutes clear and obvious error, thereby satisfying the first two prongs of the plain error analysis. It is fundamental that a criminal defendant, presumed innocent, can be found guilty only if the government proves guilt beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 361-64 (1970); Brinegar v. United States, 338 U.S. 160, 174 (1949). The verdict form suggested to the jury that it could find defendants not guilty only if it found that their innocence had been established beyond a reasonable doubt. By suggesting that the defendants had the burden of proving their innocence, the verdict form had serious constitutional implications. See Sullivan v. Louisiana, 508 U.S. 275, 277 (1993) (“What the factfinder must determine to return a verdict of guilty is prescribed by the Due Process Clause.“); id. at 278 (“[T]he jury verdict required by the Sixth Amendment is a jury verdict of guilty beyond a reasonable doubt.“); In re Winship, 397 U.S. at 364. The district court
But even an error with constitutional implications is subject to the traditional four-prong plain error analysis. See United States v. George, 676 F.3d 249, 257 (1st Cir. 2012); United States v. Catalan-Roman, 585 F.3d 453, 463 n.8 (1st Cir. 2009); United States v. Rodríguez-Lozada, 558 F.3d 29, 38 (1st Cir. 2009). Defendants must therefore satisfy the heavy burden imposed by the third prong of showing that the error “affected their substantial rights.” In other words, defendants “must show ‘a reasonable probability that, but for [the error claimed], the result of the proceeding would have been different.‘” United States v. Hebshie, 549 F.3d 30, 44 (1st Cir. 2008) (alteration in original) (quoting United States v. Padilla, 415 F.3d 211, 221 (1st Cir. 2005) (en banc) (internal quotation marks omitted)). Although this showing does not require that “a defendant prove by a preponderance of the evidence that but for [the] error things would have been different,” United States v. Dominguez Benitez, 542 U.S. 74, 83 n.9 (2004), we will nevertheless sustain a conviction if we find that “the result would quite likely have been the same” had the
Defendants cannot clear this high hurdle. First, Jury Instruction No. 2 gave a comprehensive, thorough, and accurate explanation of the government‘s burden of proof and defendants’ presumption of innocence.4 Because the jury instructions and the verdict form must be read in conjunction with one another, see Brown, 669 F.3d at 31, the precision of the reasonable doubt standard in the jury instructions is relevant to our analysis of the potential prejudicial impact of the language in the verdict form.
Finally, defendants put forward nothing to suggest that they suffered prejudice from the erroneous language in the verdict form. Instead of attempting to demonstrate actual prejudice, defendants merely focus on the egregiousness of the error, concluding that the language imposed an “impermissible burden” which “negated” their “entitlement as a matter of law to an acquittal should the Government‘s evidence . . . be deemed insufficient.” This error was especially injurious, they maintain, because of the “nominal amount of evidence” the government presented at trial.
First, the evidence was far from nominal; indeed, it was substantial. Second, this sort of general argument is insufficient to “show that the error likely ‘affected the outcome of the district court proceedings.‘”5 Hebshie, 549 F.3d at 44 (emphasis
Having failed to establish prejudice, defendants cannot show that the language in the verdict form constituted plain error sufficient to warrant a new trial.
IV.
Pabellón maintains that the district court‘s instructions on count two were erroneous in that they failed to properly instruct the jury as to the scienter element of the offense. Specifically, he argues that the instructions failed to specify that in order to convict him on count two, the jury needed to find that he had knowledge that the drugs that were the subject of the deal had been imported from outside the United States. Because Pabellón failed to object to the jury instruction, our review is again limited to plain error. United States v. LaPlante, 714 F.3d 641, 643 (1st Cir. 2013).
Defendants Jimmy Carrasquillo-Rodríguez, Jesús Pabellón-Rodríguez, and Ramon González-Duarte are accused of conspiring to commit a federal crime -- specifically, the crime of importing into the United States from the Dominican Republic, five kilograms or more of cocaine. . . .
For you to find a particular defendant guilty of conspiracy, you must be convinced that the government has proven each of the following things beyond a reasonable doubt:
First, that the agreement specified in the indictment . . . existed between at least two people to import into the United States from the Dominican Republic, five kilograms or more of cocaine; and
Second, that the defendant willfully joined in that agreement;
. . . .
To act “willfully” means to act voluntarily and intelligently and with the specific intent that the underlying crime be committed -- that is to say, with bad purpose, either to disobey or disregard the law -- not to act by ignorance, accident or mistake. The government must prove two types of intent beyond a reasonable doubt before a defendant can be said to have willfully joined the conspiracy: an intent to agree and an intent, whether reasonable or not, that the underlying crime be committed. . . .
(Emphasis added.) A finding of guilty on count two therefore required that to “willfully” join the conspiracy to import cocaine from the Dominican Republic to the United States, Pabellón had to intend that the underlying crime -- “specifically, the crime of importing into the United States from the Dominican Republic, five
V.
Carrasquillo challenges his sentence, arguing that the district court failed to consider the application of United States Sentencing Guidelines (“U.S.S.G.“) § 2D1.1, Application Notes 12 and 14. We consider his arguments as to each of these Notes in turn.
Note 12 states in pertinent part:
[I]n a reverse sting, the agreed-upon quantity of the controlled substance would more accurately reflect the scale of the offense because the amount actually delivered is controlled by the government, not by the defendant. If, however, the defendant establishes that the defendant did not intend to provide or purchase, or was not reasonably capable of providing or purchasing, the agreed-upon quantity of the controlled substance, the court shall exclude from the offense level determination the amount of controlled substance that the defendant
establishes that the defendant did not intend to provide or purchase or was not reasonably capable of providing or purchasing.
We review a district court‘s factual findings as to drug quantity under the sentencing guidelines for clear error. United States v. Correa-Alicea, 585 F.3d 484, 489 (1st Cir. 2009). Here the agreed-upon quantity was ninety kilograms. This quantity shall be reduced under Application Note 12 only if ”the defendant establishes that the defendant did not intend to provide or purchase, or was not reasonably capable of providing or purchasing, the agreed-upon quantity of the controlled substance.”
Carrasquillo never put forward evidence indicating that he and his co-conspirators were not reasonably capable of purchasing the ninety kilograms of cocaine that they agreed to purchase. Although Carrasquillo and his co-conspirators were only able to come up with an initial $59,000 to receive the first thirty-kilo bale, they were to use the profits from the sale (that same day) of the first bale to fund the purchase of the second bale, which they would then sell to purchase a third bale. The conspirators were so confident that they could pay the purchase
Note 14 states:
If, in a reverse sting (an operation in which a government agent sells or negotiates to sell a controlled substance to a defendant), the court finds that the government agent set a price for the controlled substance that was substantially below the market value of the controlled substance, thereby leading to the defendant‘s purchase of a significantly greater quantity of the controlled substance than his available resources would have allowed him to purchase except for the artificially low price set by the government agent, a downward departure may be warranted.
We find this argument unconvincing. Although there may be instances in which a “credit arrangement” could implicate the issues identified in Application Note 14, see United States v. Ruiz, 446 F.3d 762, 774-75 (8th Cir. 2006) (“A generous credit arrangement becomes increasingly suspect where the government possesses limited assurances of the defendant‘s ability to be trusted with repayment.“), the human collateral arrangement here --
VI.
For the foregoing reasons, we affirm Pabellón‘s convictions on all counts. We affirm Carrasquillo‘s convictions and their sentences as to all counts except count four. We vacate Carrasquillo‘s conviction and sentence for count four.
So ordered.
Notes
The presumption of innocence until proven guilty means that the burden of proof is always on the government to satisfy you that a defendant is guilty of the crimes with which he has been charged beyond a reasonable doubt. The law does not require that the government prove guilt beyond all possible doubt; proof beyond a reasonable doubt is sufficient to convict. This burden never shifts to a defendant. It is always the government‘s burden to prove each of the elements of the crimes charged beyond a reasonable doubt by the evidence and the reasonable inferences to be drawn from that evidence. A defendant has the right to rely upon the failure or inability of the government to establish beyond a reasonable doubt any essential element of an offense charged against him or her.