APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Juan M. Perez-Gimenez, U.S. District Judge]
Nathan P. Diamond for appellant Angel Ayala-Vazquez.
Rafael F. Castro Lang for appellant Luis Xadiel Cruz-Vazquez.
Timothy R. Henwood, Assistant United States Attorney, with whom Nelson Pérez-Sosa, Assistant United States Attorney, and Thomas F. Klumper, Assistant United States Attorney, were on brief, for appellee.
Before Thompson, Baldock, [*] and Lipez, Circuit Judges.
THOMPSON, Circuit Judge.
Blood is often thicker than water. Brothers Angel Ayala-Vazquez ("Ayala") and Luis Xadiel Cruz-Vazquez ("Cruz") (collectively, "appellants") appeal their convictions on multiple criminal charges related to their involvement in a wide-ranging drug trafficking organization based out of the Jose Celso Barbosa Public Housing Project ("Barbosa") and the Sierra Linda Public Housing Project ("Sierra Linda") in Bayamon, Puerto Rico. Unlike dozens of others who entered guilty pleas, and some others who testified against them in the hope of lessening their own punishments, Ayala and Cruz hunkered down and stood trial together. They were both convicted, and each received a life sentence.
The two brothers now argue they should be acquitted because the evidence introduced at trial was not sufficient to support the jury verdicts. Failing that, they seek a new trial on the grounds that the trial judge improperly acted as an extra prosecutor and added to the evidence against them through the way in which he questioned several witnesses. Should neither of these claims be resolved in his favor, Cruz additionally contests his life sentence on the grounds that he was less culpable than his brother and, therefore, he should not be fated to spend the rest of his life in prison too.
We have carefully considered the extensive trial record and the brothers' legal positions. After doing so, we conclude there is no merit to any of the arguments advanced by the brothers on appeal. Accordingly, we affirm their convictions and Cruz's sentence.
We set forth the basic facts in the light most favorable to the verdict, United States v. Rios-Ortiz, 708 F.3d 310, 312 (1st Cir. 2013), reserving additional details for our discussion of the specific issues raised in this appeal. Brothers Ayala and Cruz were arrested and indicted following a federal investigation into an extensive and long-lived drug trafficking organization ("DTO") based out of Barbosa. The appellants were indicted together along with sixty-three other individuals alleged to have taken part in the DTO. The Indictment identified each defendant by first name, last name, and, if applicable, nicknames or aliases. When it drew up the Indictment, the government assigned each defendant a number from one through sixty-five, with Ayala as number one and Cruz number eight.
The Indictment charged the appellants and other co-conspirators with selling a substantial amount of drugs, including marijuana, cocaine base ("crack"), cocaine, and heroin at various drug points throughout Barbosa and at other locations. It further contained several counts of conspiracy to commit money laundering through various schemes, including one count alleging that the appellants put up drug money to pay for extravagant annual Christmas parties for Barbosa's residents. The Indictment also set forth forfeiture counts seeking a money judgement of $100, 000, 000, along with forfeiture of numerous motor vehicles, race cars, watercraft, and parcels of real estate in Puerto Rico and Florida.
The other defendants named in the Indictment--with the exception of a few who could not be located--reached individual plea agreements with the government, and in the end Ayala and Cruz were the only two who stood trial. The evidence at trial outlined in detail each brother's specific role in the DTO. We recount some of the undisputed highlights.
As befitting his position as the first listed defendant, the government set out to prove that Ayala was the kingpin of the entire DTO. The eleven-count Indictment (ten counts of which were directed against Ayala) charged Ayala and sixty-four others with a panoply of drug crimes, including conspiracy with intent to distribute various controlled substances, conspiracy to import large quantities of cocaine into Puerto Rico, possession with intent to distribute controlled substances (heroin, crack, cocaine, and marijuana) within one thousand feet of a public housing facility,  and conspiracy to commit money laundering. After a lengthy trial, the jury convicted Ayala on the first nine counts. Ayala does not contest the jury's acceptance of the vast majority of the facts testified to at trial. Instead, he argues that his conviction and sentence should be vacated due to a variety of other legal errors, which we will address in time. For now, we summarize the essential facts testified to at trial and to which Ayala does not object on appeal.
Ayala became involved with drug sales at Barbosa more than two decades ago, when he sold heroin, crack, cocaine, and marijuana. At first Ayala sold these drugs along with another man named Steven, but when Steven died in 1995 Ayala took over the DTO himself and became the "boss" or "leader of the drug point owners" at Barbosa. Ayala was "always armed for protection, because of local drug wars." The drug point owners within Barbosa paid rent to Ayala for the privilege of selling drugs there. Only people who Ayala knew or who had positions of responsibility within the DTO were allowed to sell drugs.
Witnesses testified that drug sales occurred at Barbosa twenty-four seven. To improve security, Ayala directed that gates be installed between two buildings in Barbosa. The gates, which Ayala paid for, were intended to keep the drug sellers from being identified or apprehended by the police. Two sellers worked at each gate, and drugs purchased there were literally handed to customers through the iron bars. This physical barrier helped shield the sellers from any attempted arrest. Sellers also wore shirts over their faces to conceal their identities from the police.
Also on the security front, Ayala employed lookouts to provide a further level of protection. Lookouts were equipped with radios and were responsible for notifying higher-ups when police officers entered Barbosa or if they noticed anyone suspicious. One witness testified she earned $75 for each shift she worked as a lookout.
The size and scale of the DTO's Barbosa operations can be appreciated from testimony regarding just a few of the drug sales there. According to one of the coconspirators, Jose Arce Baez (number 37 on the Indictment), drugs were available twenty-four hours a day. Baez recalled that on one day in March 2001, 240 grams of crack, 600 baggies of heroin, 10 to 15 packets of marijuana and 250 to 375 baggies of cocaine were sold. A DEA informant, Burke Declet, said he purchased 3 vials of crack, 1 bag of marijuana, and 10 packets of heroin in April of 2008. Police officers also described a February 2009 raid at Barbosa that ended in a search of an apartment where the police discovered and seized a radio used by the drug lookouts, along with 1, 000 "decks" of heroin and 400 "decks" of marijuana. Chemical analysis determined these materials contained 146 grams of heroin and 428 grams of marijuana. A further search on March 27, 2009, resulted in the seizure of 51 grams of heroin and 300 grams of marijuana. Subsequent police searches led to the seizure of 285 grams of marijuana and 122 grams of heroin on April 7, 2009, 159 grams of cocaine on April 8, 2009, and 177 grams of crack on May 7, 2009.
Trial testimony further indicated that Ayala's involvement in the drug trade was not confined to sales in Puerto Rico. Indeed, one drug trafficker testified that, between 2005 and 2008, he imported "thousands of kilos of cocaine and a small portion of heroin" from the Dominican Republic for Ayala. Ayala and two other conspirators, he said, went on to ship at least some of those drugs to sellers in New York and other mainland destinations. One example of the scope of drug imports into Puerto Rico is a March 30, 2009, seizure by Puerto Rican police of a flatbed truck that had come in from the Dominican Republic. When they searched the truck, law enforcement agents discovered 182 kilos of cocaine and 12 kilos of heroin. There was also testimony that in 2008, law enforcement agents seized two vessels arriving from the Dominican Republic that contained drugs destined for Ayala's DTO. Police discovered 600 kilos of cocaine and 7 kilos of heroin on the first ship, and 397 kilos of cocaine on the second.
With respect to shipments to the mainland, one drug seller testified that between February and November of 2007, he received in New York as many as 100 kilograms per week from the DTO. Another trafficker testified that between 2000 and 2006 the DTO used commercial airlines to bring "kilos" of cocaine from Puerto Rico to New York and Florida. The amount of drugs brought in varied, but was between 120 and 300 kilos per trip. Trips were made two or three times each week, and the witness testified that in one month "about 5, 000 kilos had been sent" to the mainland.
The Indictment identified Cruz's role in the DTO as that of an "administrator" who "would, among other duties, supervise the day-to-day operations of the various narcotics distribution points within Barbosa, Sierra Linda and other locations within Puerto Rico." Cruz was charged with one count of conspiracy to posses with intent to distribute controlled substances, along with separate counts for possession with intent to distribute heroin, crack, cocaine, and marijuana. He also stood trial for his alleged participation in a money laundering conspiracy. The jury returned a guilty verdict on each crime charged against him.
Like his brother, Cruz does not contest the substance of the testimony against him, focusing instead upon the inferences to be drawn from the evidence and the purported unfairness of his life sentence. While Cruz concedes that he was in fact involved in the DTO and that he was an "administrator" at Barbosa and Sierra Linda, he maintains that his participation was "limited" to those two locales and characterizes his role as nothing more than a "third-tier administrator."
The testimony at trial indicated that Cruz was much more than a minor player in the DTO. One witness testified Cruz was in charge of daily operations at Barbosa whenever Ayala or the number two man, Omar Median Santiago, was not around. In this capacity, Cruz was responsible for ensuring the various drug points in Barbosa actually had drugs on-hand to be sold there.
As an administrator of the DTO, Cruz gave orders to others and made sure that people did not congregate in the middle of Barbosa. It was important to keep large groups from forming because this would attract attention from law enforcement agents who periodically came into Barbosa. In addition, testimony showed that Cruz worked as a runner delivering drugs to the sellers, assigned "shifts" to the sellers, informed drug sellers of locations in which the police had set up surveillance cameras, and explained to the sellers why they should cover up their faces.
Testimony further indicated that Cruz acted as an enforcer when necessary. In one instance, Jose Arce Baez (who testified against Ayala as well) explained that he worked as a seller and Cruz imposed discipline on individuals involved with the DTO at Barbosa. Baez recounted one incident where he himself was subjected to discipline as a result of having stolen "storm drains" from an apartment because he thought they were made of aluminum. When Cruz found out about this, Cruz took Baez aside into a stairwell and told him that he could either take a "slap in the face" as punishment or, failing that, Cruz could let Ayala know what he had done. Baez opted for a Cruz-administered slap. Baez also testified that he observed Cruz personally selling drugs from time to time.
Having adequately framed the backdrop, we now take up the appellants' specific arguments.
The appellants raise various grounds on appeal in their attempt to reverse their convictions or, at the very least, obtain a new trial. In seeking to reverse their convictions, the appellants challenge the sufficiency of the evidence with respect to certain counts of conviction. Failing that, they each claim entitlement to a new trial because the trial judge violated their right to a fair trial by acting as a prosecutor in his questioning of various witnesses. They say that the district judge, under the guise of questioning certain witnesses, abused his discretion by making comments that added to the evidence against them. Finally, Cruz solely argues that even if he is not entitled to an acquittal or a new trial, his life sentence should be vacated as procedurally and substantively unreasonable.
Unsurprisingly, the government disagrees. In its view the convictions should stand because the evidence at trial--including witness testimony, videotape, and seized drugs--more than suffices to allow a reasonable jury to return guilty verdicts. The government then urges us not to grant new trials because the trial judge did not exceed his authority in questioning witnesses and commenting on the evidence. As a fallback, the government argues that even if the trial judge erred in his trial participation, the appellants still are not entitled to a new trial because any such error was harmless. And with respect to Cruz's life sentence, the government states that it is procedurally and substantively reasonable in light of the evidence adduced at trial, and asks us to affirm it.
We address the arguments of each appellant in turn, beginning with their sufficiency of the evidence arguments.
I. AYALA'S CHALLENGE TO THE SUFFICIENCY OF THE EVIDENCE
Ayala challenges the sufficiency of the evidence with respect to three aspects of his convictions for drug possession and money laundering. First, he argues the government did not introduce sufficient evidence to allow the jury to find him guilty of possessing with intent to distribute illegal drugs within 1, 000 feet of a public housing facility in violation of 21 U.S.C. § 860. Next, he challenges the sufficiency of the evidence to support the jury's drug quantity findings. Finally, he contends that the jury did not have enough evidence to find that he was involved in any of the financial transactions alleged in Counts VII through IX.
Although Ayala argues that his sufficiency of the evidence challenges present questions of law--which engender de novo review--our review of the record shows Ayala did not muster a sufficiency challenge as to any of the evidence admitted at trial. Accordingly, this issue has not been preserved for appellate review. We, of course, "review an unpreserved challenge to sufficiency of the evidence only for plain error." United States v. Pratt, 568 F.3d 11, 15 (1st Cir. 2009). When employing plain error review, we will affirm the conviction unless doing so "would result in a 'clear and gross injustice.'" Id. (quoting United States v. Bello-Perez, 977 F.3d 664, 668 (1st Cir. 1992)). We address each of these issues separately.
a. Possession With Intent to Distribute (Counts III - VI)
Ayala's first sufficiency challenge is to his convictions on Counts III through VI, which alleged violation of 21 U.S.C. § 860 for possessing with intent to distribute illegal drugs within 1, 000 feet of a public housing facility. Delineating the contours of his challenge, Ayala admits the evidence allowed a jury to find that he possessed illegal drugs with intent to distribute them in Puerto Rico. He further concedes that there was enough evidence for the jury to make the following findings: (1) Ayala supplied drugs to sellers who were selling inside Barbosa; (2) the sellers in turn sold those drugs inside Barbosa; (3) the sellers kept those drugs in apartments and in vehicles; and (4) Ayala charged rent to the sellers. He argues, however, that once he turned the illegal drugs over to the sellers, he no longer had actual or constructive possession over the drugs that were ultimately sold at Barbosa. Expressed differently, Ayala's position is that once he placed the drugs into the stream of (illicit) commerce, they were no longer his drugs and, therefore, he is not responsible for their further downstream distribution to the end users. Thus, he urges us to overturn his convictions on the grounds that the evidence did not prove he possessed with intent to distribute illegal drugs within Barbosa.
In rebuttal, the government argues the evidence at trial showed Ayala controlled the DTO and, therefore, actually or constructively possessed the illegal drugs distributed at Barbosa even after they had left his physical custody. In support of this theory, the government cites testimony from cooperating witnesses to the effect that Ayala rose through the ranks of the drug organization until he finally became the leader and took control of the entire DTO from 1997 onwards. The government then goes on to argue that the evidence showed Ayala controlled the specific manner of distribution within Barbosa itself.
21 U.S.C. § 860 makes it illegal for an individual to "distribut[e], possess with intent to distribute, or manufactur[e] a controlled substance in or on, or within one thousand feet of, the real property comprising a . . . housing facility owned by a public housing authority." 21 U.S.C. § 860(a). Here, Ayala does not contest that the drugs are "controlled substances" or that Barbosa constitutes a "housing facility owned by a public housing authority." Instead, Ayala's argument is centered on his contention that once the drugs left his physical custody, he no longer possessed them or controlled the particulars of their ultimate distribution and, therefore, is not guilty of possession with intent to distribute at Barbosa in violation of 21 U.S.C. § 860.
"In order to prove possession with intent to distribute, the government must show that the defendants knowingly and intentionally possessed, either actually or constructively, a controlled substance with the specific intent to distribute." United States v. Garcia-Carrasquillo, 483 F.3d 124, 130 (1st Cir. 2007). To establish constructive possession, the government must show the defendant "knowingly ha[d] the power and intention at a given time to exercise dominion and control over an object either directly or through others." Id. Possession may be solely by one defendant or jointly with others, which "occurs when both the defendant and another person share power and intent to exercise dominion and control over contraband." United States v. Howard, 687 F.3d 13, 18 (1st Cir. 2012) (internal quotation marks omitted). Having carefully reviewed the record, we conclude that the evidence at trial proved Ayala, through his control of the DTO, retained constructive possession of the illegal drugs even after they had been distributed to the suppliers.
Ayala does not contest that he distributed drugs to sellers who ultimately sold those drugs at Barbosa. Indeed, the evidence at trial proved Ayala controlled all of the DTO's operations there. For instance, the testimony showed Ayala was responsible for having gates installed in Buildings 14 and 15 to protect sellers from arrest, and that he controlled the operation of these gates. There was also evidence that Ayala consolidated multiple drug points within Barbosa itself, directed sellers to distribute specific drugs out of specific buildings, and received proceeds from the drug sales at Barbosa. And, as we discuss later, there was evidence that Ayala instituted a regime in which he required runners and sellers to "work for free" on certain days each month and "donate" the money they would have made to finance annual, elaborate Christmas parties attended by members of the DTO and the residents of Barbosa.
From this evidence, a reasonable jury could conclude that Ayala was intricately involved with--and indeed, controlled--the entire DTO and all of its operations at Barbosa. Moreover, the evidence showed Ayala dictated where sellers could sell certain drugs at Barbosa, that he consolidated drug points there, and that he caused the runners and sellers to contribute portions of their earnings to pay for the Christmas parties put on by the DTO each year at Barbosa. The jury was warranted in concluding that Ayala exercised dominion and control over the drugs even after they left his physical possession, through his control over his underlings in the DTO. Accordingly, the evidence at trial proved Ayala constructively possessed with intent to distribute illegal drugs at Barbosa in violation of 21 U.S.C. § 860. Garcia-Carrasquillo, 483 F.3d at 130. Ayala's challenge to the sufficiency of the evidence with respect to his conviction on Counts III through VI is without merit.
b. Drug Quantity (Counts III - VI)
Moving on, Ayala next challenges the jury's drug quantity findings with respect to his conviction on Counts III through VI. Ayala first recognizes the jury found as a fact that he possessed 1 kilogram or more of heroin, 288 grams or more of crack, 5 or more kilograms of cocaine, and 1, 000 or more kilograms of marijuana, all inside Barbosa. He contends, however, that the only evidence as to drug weight at trial came from the amount of drugs the government actually seized at Barbosa. These amounts--173 grams of heroin, 377 grams of crack, 159 grams of cocaine and 1.2 kilograms of marijuana--Ayala points out, "fell far short of the charged amounts that the jury found." He then concludes, without citing any authority, that the jury's ultimate finding with respect to drug quantity was based on nothing more than "speculation and guess work."
Not surprisingly, the government disagrees completely. It points out that in addition to the amount of drugs seized, witnesses at trial testified to the size and scope of the DTO and its drug sales. This evidence included testimony that the drug point operated twenty-four seven until 2009. The government also refers to testimony from cooperating witnesses regarding the amounts of each type of drug sold on a typical day. For example, the government refers us to the witness testimony that heroin was sold in packages weighing a minimum of .22 grams per bag and that at least 500 such bags were sold each day; that 120 or more grams of crack were sold daily; that 250 to 500 baggies of cocaine were sold on a daily basis, with an average weight of .24 grams per baggie based on the seizure of 672 baggies; and that at least 100 packets of marijuana averaging 1.5 grams each were sold every day. By extrapolating these amounts over the life of the conspiracy, the government argues, the jury's drug quantity findings were amply supported by the evidence.
Simply put, Ayala's belief that the jury was prohibited from making a drug quantity determination that exceeded the amount of drugs actually seized is mistaken. When determining drug quantity, a jury may utilize and rely on witness testimony to mathematically calculate drug quantities (based on, e.g., testimony as to the duration of possession and distribution multiplied by the amount distributed on a given day). United States v. Aviles-Colon, 536 F.3d 1, 26 (1st Cir. 2008). Obviously in this case, the jury made a drug quantity finding significantly exceeding the amount of drugs actually seized by the government at Barbosa. We are satisfied, however, that the trial testimony regarding the scope of daily drug transactions in Barbosa supported the jury's ultimate findings. Moreover, this was based not only on witness testimony, but also the average weight of individual packages seized by the government. In addition, although no witness testified as to the weight of marijuana bags sold as part of the conspiracy, the jury had sufficient evidence to infer their weight based upon the evidence of (1) an undercover purchase of a bag weighing 2.2 grams, and (2) the 1.5 gram average weight of the 953 bags actually seized. Accordingly, the jury's findings with respect to drug quantity were supported by the evidence introduced at trial.
c. Money Laundering Conspiracy (Counts VII - IX)
Finally, Ayala argues that his conviction on Counts VII through IX should be overturned because there was no evidence at trial as to his personal involvement with any of the financial transactions alleged in those Counts. His position is that, although the government's evidence "established each of the three crimes of money laundering conspiracy, themselves, " the government nevertheless failed to establish one essential element of the crime as it relates to him. Relying on United States v. Gotti, 459 F.3d 296, 335 (2d Cir. 2006), Ayala argues the government was required to show that he, as the principal, personally initiated, concluded, or participated in each transaction. The government's response is, essentially, that the evidence at trial allowed the jury to conclude that Ayala was the boss or leader of the entire DTO, that Ayala imposed a structure on the drug sellers to collect money throughout the year to finance the annual Christmas parties, that Ayala directed the purchase of race cars and other luxury vehicles (so-called "daily-drivers") through "straw buyers" who owned those vehicles in name only, and that drug money was used to pay for all of Ayala's vehicles, both the race cars and daily-drivers.
Ayala's challenge to the sufficiency of the evidence on these Counts is without merit. By basing his argument on the lack of evidence of his direct involvement in the alleged financial transactions, Ayala overlooks that each money laundering count charged him as a participant in a money laundering conspiracy in violation of 18 U.S.C. § 1956(h). That statute makes it a crime for anyone to knowingly engage in certain financial transactions involving the proceeds of unlawful activity. See 18 U.S.C. § 1956(a). The specific section Ayala was charged under, Section 1956(h), declares that "[a]ny person who conspires to commit any offense defined in this section . . . shall be subject to the same penalties as those prescribed for the offense the commission of which was the object of the conspiracy." 18 U.S.C. § 1956(h). Thus, to secure a conviction the government needed to prove not that Ayala himself carried out each transaction, but that he was part of a conspiracy the object of which was to engage in money laundering.
The crime of money laundering comes in two varieties, "promotional" and "concealment." United States v. Cedeño-Perez, 579 F.3d 54, 57 (1st Cir. 2009). An individual is guilty of promotional money laundering if "(1) 'knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity, ' he (2) 'conducts or attempts to conduct such a financial transaction which in fact involves the proceeds of specified unlawful activity, ' (3) 'with the intent to promote the carrying on of specified unlawful activity.'" Id. (quoting 18 U.S.C. § 1956(a)(1)(A)(i)). The second variety, concealment, differs only with respect to the third element. To convict an individual of concealment money laundering, the government must prove the first two elements of promotional money laundering and, third, that "the person conducts the financial transaction 'knowing that the transaction is designed in whole or in part . . . to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity.'" Id. (quoting 18 U.S.C. § 1956(a)(1)(B)(i)).
To convict Ayala of conspiracy to commit money laundering, the government was required to introduce evidence showing that Ayala had entered into an agreement with one or more co-conspirators to commit either promotional or concealment money laundering. See United States v. Misla-Aldarondo, 478 F.3d 52, 68 (1st Cir. 2007). An agreement to enter into a conspiracy may be tacit or express. United States v. Josleyn, 99 F.3d 1182, 1190 (1st Cir. 1996). A conspiracy conviction requires proof that "the defendant voluntarily participated to promote a criminal objective." Id. We have also held that "[a] particular defendant need not have been familiar with all the details of the conspiracy or with the identities of all other conspirators" in order to be guilty of the conspiracy offense. Id.
Count VII alleged that Ayala was part of a money laundering conspiracy that "utilized narcotics proceeds in order to organize, host and finance annual Christmas parties at . . . Barbosa" from 2004 through 2008. The government introduced evidence at trial showing not only that Ayala was the unquestioned "boss" of Barbosa, but that he himself put in place a procedure to fund the Christmas parties by requiring sellers to contribute drug proceeds throughout the year. There was also testimony showing that Ayala personally ...