United States v. Merced-Nieves ( 2000 )

[NOT FOR PUBLICATION — NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 99-1114
UNITED STATES OF AMERICA,
Appellee,
v.
WALTER MERCED-NIEVES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
Before
Selya, Circuit Judge,
Bownes, Senior Circuit Judge,
and Lipez, Circuit Judge.
John Ward-Llambias, by appointment of the court, for
appellant.
Jacabed Rodriguez-Coss, Assistant United States Attorney,
with whom Guillermo Gil, United States Attorney, and Jorge E.
Vega-Pacheco, Assistant United States Attorney, were on brief,
for appellee.
October 17, 2000
SELYA, Circuit Judge. On April 10, 1997, a federal
grand jury sitting in the District of Puerto Rico returned a
three-count indictment against a number of individuals. In
Count 2 of the indictment, the grand jury charged several
persons, including Walter Merced-Nieves, with conspiring to
distribute controlled substances in violation of 21 U.S.C. §
846. In Count 3 of the same indictment, the grand jury charged
some of the same individuals, including Merced-Nieves, with
using and carrying firearms during and in relation to the
commission of a drug-trafficking offense. See 18 U.S.C. §
924(c)(1). Following a five-week trial, a petit jury found
Merced-Nieves guilty as charged. The district court thereafter
sentenced him to a term of life imprisonment on the conspiracy
charge and, ironically, to a consecutive five-year prison term
on the firearms charge. Merced-Nieves appeals. 1 Having
carefully reviewed the record, we affirm.
The appellant's basic argument entails a challenge to
the sufficiency of the evidence. This challenge invokes a
familiar standard of review: when evaluating the sufficiency of
1
Merced-Nieves stood trial with eight other alleged
coconspirators (all of whom were found guilty), and we
consolidated the nine ensuing appeals. Seven of them, including
this one, were argued together on September 14, 2000. The other
two were submitted on the briefs to the same panel. We have
elected to decide this appeal in a separate opinion.
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the evidence presented against a defendant in a criminal case,
an appellate court must "canvass the evidence (direct and
circumstantial) in the light most agreeable to the prosecution
and decide whether that evidence, including all plausible
inferences extractable therefrom, enables a rational factfinder
to conclude beyond a reasonable doubt that the defendant
committed the charged crime." United States v. Noah, 130 F.3d
490, 494 (1st Cir. 1997).
The principal statute of conviction here is 21 U.S.C.
§ 846. To convict a defendant of violating that statute, the
government must "show beyond a reasonable doubt that a
conspiracy existed and that a particular defendant agreed to
participate in it, intending to commit the underlying
substantive offense." United States v. Sepulveda, 15 F.3d 1161,
1173 (1st Cir. 1993). Proof of the illicit agreement requires
"no particular formalities." Id. Thus, a defendant may join in
a drug-trafficking conspiracy without knowing the full extent of
the enterprise or the identities of all the coconspirators. See
United States v. Rivera-Santiago, 872 F.2d 1073, 1079 (1st Cir.
1989). By like token, the government may satisfy its burden
through either direct or circumstantial evidence, or through any
combination of the two. See United States v. Marrero-Ortiz, 160
F.3d 768, 772 (1st Cir. 1998); United States v. Hernandez, 146
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F.3d 30, 33 (1st Cir. 1998). In short, both the conspiracy's
existence and a particular defendant's membership in it may be
inferred from the participants' "words and actions and the
interdependence of activities and persons involved." United
States v. Boylan, 898 F.2d 230, 241-42 (1st Cir. 1990).
The remaining count of conviction implicates 18 U.S.C.
§ 924(c)(1), which provides in pertinent part that: "[Whoever,]
during and in relation to any . . . drug trafficking crime . .
. for which he may be prosecuted in a court of the United
States, uses or carries a firearm, shall . . . [be given
additional punishment]." In order to convict under the "use"
prong of this statute, the government must show "actual use" of
a firearm, a standard that "'includes brandishing, displaying,
bartering, striking with, and most obviously, firing or
attempting to fire, a firearm.'" United States v. Valle, 72
F.3d 210, 217 (1st Cir. 1995) (quoting Bailey v. United States,
516 U.S. 137, 148 (1994) (citations omitted)). To convict under
the "carry" prong of the statute, the government must prove
beyond a reasonable doubt that the defendant knowingly carried,
conveyed, or transported a firearm. See Muscarello v. United
States, 524 U.S. 125, 126 (1998). Finally, the government must
prove the requisite nexus between this use or carriage and a
drug-trafficking crime. See, e.g., United States v. Bergodere,
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40 F.3d 512, 518 (1st Cir. 1994); United States v. Hadfield, 918
F.2d 987, 998 (1st Cir. 1990).
Against this backdrop, we turn to the appellant's
paramount assignment of error. Merced-Nieves concedes, as he
must, that the government proved the existence of a large, long-
lasting conspiracy to distribute various controlled substances.
The initial question, then, is whether the government also
proved that he was part and parcel of it. The secondary
question is whether the government proved that he used or
carried a firearm to facilitate the ring's drug-trafficking
exploits. The record suggests that both of these questions must
be answered affirmatively.
At trial, the government adduced competent evidence
that Merced-Nieves sold narcotics for the ring and that he
routinely carried a firearm in the course of those felonious
activities. The government also adduced evidence that Merced-
Nieves participated in other facilitative conduct, including
sundry carjackings and drive-by shootings of rival gang members.
This evidence, when viewed in the light most favorable to the
prosecution, suffices to undergird his convictions. See, e.g.,
Rivera-Santiago, 872 F.2d at 1079 (holding that "[t]he fact that
[the defendant] participated in one retail link of the
distribution chain, knowing that it extended beyond his
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individual role, [is] sufficient" to demonstrate his culpability
as a member of a drug-trafficking conspiracy); United States v.
Collazo-Aponte, 216 F.3d 163, 195 (1st Cir. 2000) (holding that
to transgress section 924(c)(1), "it is enough that the
appellant carried the firearms during the [drug related
shootings] and therefore used the weapons in furtherance of the
drug conspiracy").
The appellant seeks to deflect the force of this proof
by assailing the credibility of the government's several
witnesses. But that line of attack avails him naught. In
passing upon challenges to the sufficiency of the evidence, we
are bound to refrain from making independent judgments as to
witness credibility. See Noah, 130 F.3d at 494; United States
v. Echeverri, 982 F.2d 675, 677 (1st Cir. 1993). We recently
summed up this principle in United States v. Alicea, 205 F.3d
480 (1st Cir. 2000), in which we wrote that "[e]xcept in the
most unusual circumstances . . . credibility determinations are
for the jury, not for an appellate court." Id. at 483. The
circumstances here are not extraordinary, so this case comes
within the sweep of this general rule, not within the long-odds
exception to it.
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The appellant puts a twist on his credibility theme,
struggling to invoke the specter of a witness-bribery statute
that provides in pertinent part:
Whoever . . . directly or indirectly, gives,
offers or promises anything of value to any
person, for or because of the testimony
under oath or affirmation given or to be
given by such person as a witness upon a
trial, hearing, or other proceeding, before
any court . . . authorized by the laws of
the United States to hear evidence or take
testimony . . . shall be fined under this
title or imprisoned for not more than two
years, or both.
18 U.S.C. § 201(c)(2). In 1998, a Tenth Circuit panel held that
this statute forbade testimony given in exchange for promised
leniency, and applied an exclusionary rule to remedy perceived
violations. See United States v. Singleton, 144 F.3d 1343 (10th
Cir. 1998) (Singleton I). The appellant acknowledges that
Singleton I has been withdrawn and that the Tenth Circuit,
sitting en banc, has repudiated it. See United States v.
Singleton, 165 F.3d 1297, 1298 (10th Cir. 1999) (en banc)
(Singleton II), cert. denied, 527 U.S. 1024 (1999). The
appellant also acknowledges that this court has disavowed the
reasoning of Singleton I. See United States v. Lara, 181 F.3d
183, 198 (1st Cir. 1999). He nonetheless argues that the spirit
of Singleton I persists, and that the rationale behind the
decision — namely, that testimony from government witnesses who
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have received inducements to testify is inherently unreliable —
justifies the reversal of the jury verdict in this case.
We reject this specious argument. While the testimony
of cooperating witnesses must always be scrutinized with care,
see, e.g., United States v. LiCausi, 167 F.3d 36, 47 (1st Cir.
1999), the witnesses here were subjected to withering cross-
examination by several sets of defense counsel, and the jury was
properly instructed to weigh their testimony in light of the
promises made and inducements tendered. The jury apparently
found the witnesses credible. We know of no authority that
would permit us, in the circumstances of this case, to second-
guess the jury's assessment. We therefore decline to accept the
appellant's reading of either the letter or the spirit of
section 201(c)(2). See Lara, 181 F.3d at 198; Singleton II, 165
F.3d at 1298; see also United States v. Lowery, 166 F.3d 1119,
1122-24 (11th Cir. 1999); United States v. Ramsey, 165 F.3d 980,
987 (D.C. Cir. 1999); United States v. Ware, 161 F.3d 414, 418-
25 (6th Cir. 1998), cert. denied, 526 U.S. 1045 (1999); United
States v. Haese, 162 F.3d 359, 366-68 (5th Cir. 1998), cert.
denied, 526 U.S. 1138 (1999).
We need go no further. To the extent that the
appellant offers other arguments, they are either undeveloped,
or obviously meritless, or both. We conclude that the evidence
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introduced at trial, taken in the light most congenial to the
government's theory of the case, amply supported the jury
verdict on both counts of conviction. Accordingly, the judgment
below must be
Affirmed.
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