APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Gustavo A. Gelpí, U.S. District Judge].
David Ramos-Pagan for appellant Juan Santos-Rivera.
Alan Jay Black for appellant Jeffrey Carrasquillo-Ocasio.
Juan M. Masini-Soler for appellant Jesús M. Díaz-Correa.
Mariana Bauzá, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, and Julia M. Meconiates, Assistant United States Attorney, were on brief, for appellee.
Before Torruella, Lipez, and Howard, Circuit Judges.
LIPEZ, Circuit Judge.
Following a sixteen-day trial, a jury convicted the defendants on conspiracy and drug possession charges stemming from their role in a criminal organization operating a 24hour "drug point" in the Jesus T. Piñero Public Housing Project in Canóvanas, Puerto Rico. Each of the three defendants was convicted of conspiracy to possess with the intent to distribute at least 50 grams of cocaine base, at least 5 kilograms of cocaine, and a measurable quantity of marijuana within 1, 000 feet of a protected zone and of aiding and abetting the same in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iii), 846, and 860, and 18 U.S.C § 2. Defendant Jesús Díaz-Correa was also convicted of conspiracy to possess firearms in furtherance of drug trafficking crimes in violation of 18 U.S.C. § 924(o). Each defendant received a lengthy term of incarceration: Díaz-Correa was sentenced to 330 months, Juan Santos-Rivera to 240 months, and Jeffery Carrasquillo-Ocasio to 216 months. The jury also imposed a forfeiture under 21 U.S.C. § 853.
Defendants Díaz-Correa and Carrasquillo-Ocasio challenge their convictions, asserting that the district court erred in denying their motions under Federal Rule of Criminal Procedure 29 for a judgment of acquittal. Díaz-Correa also argues in the alternative that his conviction was irreparably tainted by prosecutorial misconduct during closing arguments. Carrasquillo-Ocasio and Santos-Rivera both challenge their sentences.
Although there was an instance of prosecutorial misconduct here, it is saved by harmless error. Hence, we affirm the judgments of the district court.
"We turn to the trial record for the following background, presenting the facts in the light most favorable to the verdict." United States v. Gómez-Rosario, 418 F.3d 90, 93 (1st Cir. 2005).
The three defendants in this case were indicted, along with 39 co-conspirators, for their role in a substantial, organized drug trafficking conspiracy operating out of the Jesús T. Piñero Public Housing Project ("Piñero") in Canóvanas, Puerto Rico from 2006 to 2008. According to the testimony at trial, the drug point operated around the clock, moving at least 400 vials of crack cocaine, 30 bags of powder cocaine, and 160 bags of marijuana on a daily basis.
The Piñero operation was sufficiently organized so that each co-conspirator had a prescribed, specialized role within the operation. Santos-Rivera was a "pusher, " meaning he sold drugs at the drug point on behalf of the organization and received a commission on those sales. Carrasquillo-Ocasio was also a "pusher" for the organization, but during the relevant period he was promoted and became a "runner" for the ten-dollar bags of cocaine. As such, he was in charge of delivering cocaine from the stash points to the sellers working the drug point, and he had to collect and tally cash at the end of shifts, distribute to the sellers their commission, and return that money to the drug point administrators. Díaz-Correa was an "administrator" of the Piñero drug point. He was responsible for overseeing the day-to-day operations of the drug point and hosting meetings with other leaders to organize and plan the conspiracy's unlawful business.
To support the charge of a drug trafficking conspiracy, the government introduced drugs and weapons seized from Piñero, surveillance photographs and video recordings of the drug point in operation, and wire-tap recordings of conversations between various co-conspirators. To tie the three co-defendants to the conspiracy, the government relied primarily on the testimony of two confessed former co-conspirators: 1) Gretchen Villafañe, the common law wife of the organization's incarcerated former leader, and 2) Daniel Nuñez-Rivera, also known as Danny Sellés, an active member of the Piñero drug operation who became a confidential informant sometime in 2007. The jury convicted the defendants on every count charged in the indictment.
We first discuss the challenges to the convictions, beginning with Díaz-Correa and Carrasquillo-Ocasio's sufficiency challenges and then address Díaz-Correa's allegation of prosecutorial misconduct. We close with a discussion of Carrasquillo-Ocasio and Santos-Rivera's challenges to their sentencing.
II. Challenges to the Convictions
A. Sufficiency of the Evidence
"We review de novo the district court's denial of a motion made under Rule 29 for judgment of acquittal." United States v. Fernández-Hernández, 652 F.3d 56, 67 (1st Cir. 2011). I n o u r review, "[w]e examine the evidence, both direct and circumstantial, in the light most favorable to the jury's verdict. We do not assess the credibility of witnesses, as that role is reserved for the jury. Nor need we be convinced that the government succeeded in eliminating every possible theory consistent with the defendant's innocence. Rather, we must decide whether that evidence, including all plausible inferences drawn therefrom, would allow a rational factfinder to conclude beyond a reasonable doubt that the defendant committed the charged crime." United States v. Troy, 583 F.3d 20, 24 (1st Cir. 2009) (citations omitted) (internal quotation marks omitted). This standard of review is formidable and "defendants challenging convictions for insufficiency of evidence face an uphill battle on appeal." United States v. Lipscomb, 539 F.3d 32, 40 (1st Cir. 2008) (citation omitted) (internal quotation marks and alterations omitted); see also United States v. Polanco, 634 F.3d 39, 44-45 (1st Cir. 2011) (noting that "a sufficiency challenge is a tough sell").
1. Drug Trafficking Charges
"To prove a drug conspiracy charge under 21 U.S.C. § 846, the government is obliged to show that a conspiracy existed and that a particular defendant agreed to participate in it, intending to commit the underlying substantive offense." United States v. Baltas, 236 F.3d 27, 35 (1st Cir. 2001) (citations omitted) (internal quotation marks omitted). Because neither can seriously contend that a drug conspiracy did not exist at Piñero, both defendants attack the evidence demonstrating their agreement to participate in the drug-selling operation there. Specifically, they argue that the testimony of the government's key witnesses, co-conspirators Nuñez-Rivera and Villafañe, was too conclusory and unreliable for a reasonable factfinder to conclude beyond a reasonable doubt that Díaz-Correa and ...