United States v. Mercado-Irizarry , 404 F.3d 497 ( 2005 )

United States Court of Appeals
For the First Circuit
Nos. 02-1105
02-1107
02-1108
02-1072
02-1269
UNITED STATES OF AMERICA,
Appellee,
v.
FELIX MERCADO IRIZARRY; MANUEL VAZQUEZ-MENDEZ;
ELIEZER MORERA-VIGO; HERNAN VAZQUEZ-MENDEZ;
GERMAN RODRÍGUEZ RODRÍGUEZ,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lynch, Circuit Judge.
Ignacio Fernández de Lahongrais for appellant Felix Mercado
Irizarry.
David W. Roman, with whom Brown & Ubarri was on brief, for
appellant Manuel Vazquez-Mendez.
Ramon M. Gonzalez for appellant Eliezer Morera-Vigo.
Michael J. Cruz for appellant Hernan Vazquez-Mendez.
Jean Philip Gauthier for appellant German Rodríguez Rodríguez.
Sonia I. Torres-Pabón, Assistant United States Attorney,
Chief, Criminal Division, with whom H.S. Garcia, United States
Attorney, Nelson Pérez-Sosa, Assistant United States Attorney,
Senior Appellate Attorney, and Thomas F. Klumper, Assistant United
States Attorney, were on brief, for appellee.
April 11, 2005
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LYNCH, Circuit Judge. Nineteen individuals, including
appellants Felix Mercado Irizarry, Hernan Vazquez-Mendez, Eliezer
Morera-Vigo, Manuel Vazquez-Mendez, and German Rodríguez Rodríguez,
were indicted on one count of conspiracy to distribute in excess of
one kilogram of heroin, five kilograms of cocaine, and fifty grams
of cocaine base, in violation of 21 U.S.C. § 846. Defendants were
charged with distributing drugs through several drug points in the
Tibes Public Housing Project in Ponce, Puerto Rico, from 1992 until
the return of the indictment in 2000.
All defendants save these five appellants pled guilty to
the charge. After a seventeen-day jury trial, the five appellants
were found guilty. The court sentenced each to life imprisonment.
Each appeals from both the verdict of guilt and the life sentence,
save Hernan Vazquez-Mendez, who appeals only his sentence.
I.
Challenges to Conviction
Mercado Irizarry
Mercado first argues that he was deprived of a fair trial
based on the cumulative effect of various alleged evidentiary
errors: admission of three statements about Mercado's involvement
in murders and of other evidence of two murders committed in
furtherance of the conspiracy. He also argues for the first time
here that the government committed a Brady violation. Brady v.
Maryland, 373 U.S. 83 (1963).
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The first two challenged statements were made by Edwin
Melendez-Negron, a co-conspirator who pled guilty to the conspiracy
and became a cooperating witness for the government. Melendez-
Negron testified that Mercado told him that Mercado was the driver
of the car during the murder of a man named Hueso. On cross
examination, when Melendez-Negron was confronted with his
previously made contradictory statements, Melendez-Negron admitted
that Mercado never told him anything about Heuso's murder. But he
testified that Mercado was present when a man named Melito and
Melendez-Negron discussed Hueso's murder. Mercado argues that,
because Melendez-Negron retracted his earlier statement, the judge
should have stricken Melendez-Negron's first statement from the
record and instructed the jury not to consider it.
Melendez-Negron then testified that the murderer of
Hueso, a man named Melito, told Melendez-Negron that Mercado helped
him kill Hueso. This statement was admitted under Fed. R. Evid.
801(d)(2)(E) as a statement made by a co-conspirator in furtherance
of the conspiracy. Mercado argues that the statement was wrongly
admitted under the co-conspirator exception because the evidence
was that the murder was a result of a personal vendetta, and not in
furtherance of the drug conspiracy.
The final statement was by a police agent, Edwin Rosado
Vega, who testified about prior consistent statements made by
Melendez-Negron regarding Hueso's murder. This was permitted by
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the district court on the basis that it was duplicative of
Melendez-Negron's sworn statement already in evidence. That sworn
statement was introduced into evidence by the defense when cross
examining Melendez-Negron, in an attempt to impeach his earlier
testimony. Although the defense introduced the sworn statement of
Melendez-Negron, Mercado now argues that Melendez-Negron's sworn
statement was made after his motive to fabricate a story regarding
Hueso's murder arose, because the statement was made after he
agreed to cooperate with the government and testify against
Mercado. As a result, he argues, it was error to admit Rosado's
statement.
Mercado further argues that the district court erred in
allowing any evidence of the murder of Hueso, and evidence of
another murder allegedly committed by Mercado of a man named Wally,
because of a lack of evidence that these murders were committed in
furtherance of the conspiracy. He argues that the only evidence
that the murder of Wally was related to the conspiracy is the
testimony of Julio Valentin Medina, who testified that he heard
that Mercado killed Wally because of a "debt" and because he was a
"stool pigeon." Mercado argues that this evidence is insufficient
to show that Wally's murder was in furtherance of the conspiracy.
Finally, Mercado argues that the government committed a
Brady violation by presenting testimony of the murders of Edwin and
Michel Vázquez as overt acts in furtherance of the conspiracy,
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despite the fact that the government had in its possession a sworn
statement from a different cooperating witness that these murders
were unrelated to the conspiracy, which it did not disclose to the
defense. Mercado does not argue that the Brady violation itself
warrants a new trial, but rather he argues that the disclosure of
the statement would have allowed the court to perform a more
informed balancing test under Fed. R. Evid. 403, and that balancing
may have led to this evidence being disallowed as unfairly
prejudicial. Further, he argues that the failure to disclose the
statement impeded his cross examination of the government's
testifying witness. The government denies there was any Brady
violation.
We review the district court's evidentiary rulings as to
preserved claims for abuse of discretion. United States v. Balsam,
203 F.3d 72, 84 (1st Cir. 2000).
The district court did not abuse its discretion in
admitting the statements of Melendez-Negron or Officer Rosado.
First, as to the testimony of Melendez-Negron, Mercado has
impermissibly switched the basis for his argument twixt trial and
appeal. His trial counsel did not move to have Melendez-Negron's
earlier statement stricken on the ground, argued now, that the
witness had disavowed his earlier testimony. Rather, he asked the
judge to strike any testimony relating to the murder of Hueso on
the ground that there was inadequate evidence that the murder was
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in furtherance of the conspiracy. The "in furtherance" evidence
was sufficient, for reasons described later. Considering his newly
advanced argument on appeal, there was no plain error, and no error
at all. It was up to the jury to evaluate the statements,
including the contradictions.
As to the second statement, that Melito told Melendez-
Negron that Mercado helped him kill Hueso, there was adequate
evidence that the murder of Hueso was in furtherance of the
conspiracy. This statement was admissible under the co-conspirator
exception. Fed. R. Evid. 801(d)(2)(E). Mercado attempts to argue
that Melito wanted to kill Hueso because Hueso stole drugs from him
at a time before Melito joined the Tibes conspiracy, and therefore
the murder could not have been found to be in furtherance of the
Tibes conspiracy. This is not so. When Melito and Mercado
murdered Hueso, they both worked for Melendez-Negron at Tibes,
Melendez-Negron supplied them with the weapons to kill Hueso, and
he instructed them to do so away from the Tibes Public Housing
Project so as not to draw attention to the drug points. The
government introduced evidence that the Tibes conspiracy had a
pattern of killing those who had wronged members of the conspiracy
in order to protect the conspiracy; there is adequate evidence that
the murder of Hueso was a part of this pattern.
As to Officer Rosado's testimony concerning what
Melendez-Negron had told him about Hueso's murder, the district
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court correctly ruled that this was admissible under Rule 801(d)(1)
because Melendez-Negron's consistent sworn statement about the
murder had already been introduced into evidence by the defense in
an attempt to impeach his direct testimony.
It is also clear that evidence of the murders of Hueso
and Wally were not erroneously admitted. There was adequate
evidence that each of these murders was committed in furtherance of
the conspiracy. As to the evidence about Wally's murder, the
government introduced testimony that Mercado murdered Wally because
he owed a debt and because he was a "stool pigeon."
As to the unpreserved argument of an alleged Brady
violation, we note that the statement in question was referred to
in multiple reported cases before the start of Mercado's trial, and
could easily have been discovered by Mercado's counsel, thus it is
doubtful there is any Brady claim. In any event, given the
corroborating testimony that the murders in question were committed
in furtherance of the conspiracy, and the amount of evidence
implicating Mercado in the conspiracy, he cannot carry his burden
of showing that the alleged violation affected the result of the
proceeding. See United States v. Conley, 249 F.3d 38, 45 (1st Cir.
2001).
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Morera-Vigo
Morera-Vigo makes the same arguments that Mercado does
about admission of evidence of the murders of Hueso and Wally. We
reject them for the same reasons.
In addition, Morera-Vigo argues that the court erred in
allowing evidence of murders and drug dealing committed at other
drug points in Ponce. He argues that there was a different
conspiracy run by Angela Ayala, whose only connections to the Tibes
conspiracy were that one of her drug points was in the Tibes Public
Housing Project and that she acted as a supplier to other drug
points there. He argues that evidence of Angela Ayala's drug
activities at drug points other than her drug point at Tibes, and
evidence of murders committed to protect those drug points, was
improperly and prejudicially admitted into evidence. The
government introduced this evidence on the theory that dealers at
several drug points in and around the Tibes Public Housing Project
assisted each other in their drug distribution efforts and in the
protection of their drug points, and that its admission was
necessary to understand the full scope of the conspiracy.
We bypass the question of admissibility; any error was
harmless. Independently, there was more than adequate evidence for
the jury to convict Morera-Vigo, including testimony and in-court
identifications by three different cooperating witnesses
implicating Morera-Vigo as a co-conspirator selling drugs and
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committing violent acts to protect the conspiracy. There was also
forensic evidence linking Morera-Vigo to murders committed in
furtherance of the conspiracy.
In pro-se supplemental and reply briefing, defendant
Morera-Vigo for the first time attempts to challenge his conviction
based on the fact that "drug type and quantity was not submitted to
the jury," and "the jury was not instructed to determine guilt on
the elements of drug type and quantity." This argument is both
factually and legally incorrect. The judge did instruct the jury
that, through the special verdict form, they would be asked to
determine both drug type and a minimum drug quantity for each
defendant found guilty of the conspiracy. Citing United States v.
Perez-Ruiz, 353 F.3d, 20 (1st Cir. 2003), Morera-Vigo argues that
this was insufficient because the jury did not find an amount of
drugs attributable to him specifically, rather than the conspiracy
as a whole. This argument misunderstands our case law. Perez-Ruiz
goes to the maximum sentence available based on the jury verdict of
guilt in a conspiracy. Id. at 15. Perez-Ruiz says nothing about
the vacation of a conviction for conspiracy based on lack of an
individualized quantity determination. The district court
instructed the jury on all the elements of the crime, namely,
conspiracy to distribute drugs in violation of 21 U.S.C. § 846, and
the jury found all the elements of the crime. This argument is
meritless.
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Rodríguez Rodríguez
Rodríguez argues that the district court erred in
allowing the government to present testimony by five witnesses
(Melendez-Negron, Enrique Malave Diaz, Gamalier Douglas, Julio
Valentin Medina, and Joel Irizarry-Rosario), who had entered into
cooperation agreements with the government which ensured them
leniency in exchange for their testimony. He argues that such
agreements gave each a motivation to present false testimony, and
that such testimony was unfairly prejudicial. Testimony of
cooperating witnesses is common and appropriate. There are also
adequate procedural safeguards. See United States v. Dailey, 759
F.2d 192, 200 (1st Cir. 1985) (cooperating witness testimony
permissible, but agreements should be read to jury, defense
permitted to cross-examine about agreements, and cautionary
instruction should be given to jury about nature of agreement and
risk created thereby). There is no claim that such procedural
safeguards were ignored in this case; rather, Rodríguez claims that
such testimony is inherently unreliable and should have been
excluded. This claim is meritless.
Manuel Vazquez-Mendez
Manuel Vazquez-Mendez argues that the district court
erred in denying his Fed. R. Crim. P. Rule 29 motion for acquittal.
He argues that there was testimony about at least six individuals
named "Manuel," and the jury was left to speculate as to whether he
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was any of them. Further, he argues that the evidence
affirmatively implicating him showed only his involvement with a
different drug point involved in a different conspiracy, and
therefore the government did not carry its burden of showing his
involvement in the Tibes drug conspiracy that was charged in the
indictment.
We review the denial of a Rule 29 motion for acquittal de
novo. United States v. Moran, 312 F.3d 480, 487 (1st Cir. 2002).
In doing so we must decide, viewing the evidence in the light most
favorable to the verdict of guilt, whether a reasonable factfinder
could find the defendant guilty of the crime beyond a reasonable
doubt. Id. There was ample evidence to find Manuel Vazquez-Mendez
guilty of the charged conspiracy. A cooperating witness, Joel
Irizarry-Rosario, made a valid in-court identification of Manuel
Vazquez-Mendez, testified that he was involved with selling drugs
at the Tibes Housing Project, and gave detailed testimony that
Manuel Vazquez-Mendez was part of a group that hunted down and
killed a rival drug dealer named Papito who was at war with the
Tibes conspiracy. Further, the government submitted forensic
evidence that corroborated Irizarry-Rosario's testimony about
Manuel Vazquez-Mendez's involvement in this murder. Viewing the
evidence in the light most favorable to the verdict of guilt, there
was adequate evidence to find Manuel Vazquez-Mendez guilty of the
conspiracy.
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Sentencing
In the aftermath of United States v. Booker, 125 S. Ct.
738 (2005), and United States v. Antonakopoulos, 399 F.3d 68, 76
(1st Cir. 2005), and acknowledging that each defendant preserved
his claims of sentencing error, the government agreed to a remand
for resentencing of all.1 Although pre-Booker, the sentencing
court was required by the Guidelines, because it found the murder
cross-reference in USSG §2D1.1(d)(1) to be applicable, to impose a
life sentence, the statute permitted but did not require imposition
of a life sentence. The Guidelines are now advisory and the judge
is no longer mandated to impose a life sentence, so given the
government's concession, remand is appropriate. Of course, we
intimate no view on what sentences should be imposed on remand.
We make one comment as to a sentencing claim made by
defendants Hernan Vazquez-Mendez, Eliezer Morera-Vigo, Manuel
Vazquez-Mendez, and German Rodríguez Rodríguez. In supplemental
briefing, each of these defendants claims that the maximum penalty
he may receive based on the jury verdict alone is twenty years, the
default statutory maximum derived from the catch-all provision in
1
The government also concedes that the supervised release term
for Mercado of ten years was in error; the Guidelines provided for
a five-year term and the ten-year term is available only as an
upward departure. Further, it concedes that the district court
erred in delegating to the probation office the number of drug
tests Morera-Vigo must undergo during his supervised release term,
pursuant to this court's holding in United States v. Melendez-
Santana, 353 F.3d 93 (1st Cir. 2003).
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21 U.S.C. § 841(b)(1)(C). This is so, they argue, because the jury
did not make individualized quantity determinations as to the type
and quantity of drugs that were attributable to each defendant
specifically, but rather only determined drug type and quantity
attributable to the conspiracy as a whole.
This argument is mistaken. The indictment specified drug
type and quantity for each defendant. In addition, the district
court instructed the jury that it would be asked to find beyond a
reasonable doubt the drug type and quantity stated in the
indictment for each defendant found guilty of joining the
conspiracy. Further, the jury was given a special verdict form for
each defendant, which stated:
Do you unanimously agree by proof beyond a
reasonable doubt that the quantity of cocaine
which was distributed and/or intended to be
distributed as part of the conspiracy was five
kilograms or more?
Do you unanimously agree by proof beyond a
reasonable doubt that the quantity of heroin
which was distributed and/or intended to be
distributed as part of the conspiracy was one
kilogram or more?
The jury answered yes to both questions of the special verdict form
for all five defendants. As the case law of this circuit has made
abundantly clear, the maximum statutory penalty available to the
district court at sentencing for a defendant convicted of a drug
conspiracy is based on the drug quantity and amount reflected in
the jury verdict attributable to the conspiracy as a whole. United
States v. Perez-Ruiz, 353 F.3d 1, 15 (1st Cir. 2003). Here, since
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the jury found all defendants guilty of a conspiracy to distribute
greater than one kilogram of heroin and five kilograms of cocaine,
the relevant statutory maximum penalty would be the penalty set
forth in 21 U.S.C. § 841(b)(1)(A), which is life imprisonment.
Conclusion
The conviction of each defendant is affirmed. The
sentence for each defendant is vacated and the cases remanded for
reconsideration of the sentence of each defendant in light of
United States v. Booker, 125 S. Ct. 738 (2005).
So ordered.
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