United States District Court, D. New Hampshire
MEMORANDUM AND ORDER Opinion No. 2014 DNH 250.
PAUL BARBADORO, District Judge.
Marco Garcia ("Garcia") was convicted in this court of conspiracy to distribute cocaine and to possess it with intent to distribute. He was sentenced to 198 months in prison. He now moves to vacate his sentence pursuant to 28 U.S.C. § 2255. For the reasons that follow, I deny Garcia's motion.
A. Overview of the Conspiracy
Garcia was convicted as a participant in an international drug conspiracy. He was tried jointly with his cousin Ciro Garcia Lopez ("Lopez"), a coconspirator who was also convicted. The First Circuit summarized the background of the conspiracy in its decision rejecting Garcia's direct appeal:
Lopez's cousin [and Garcia's half-brother], Juan Garcia Hernandez ("Hernandez"), was a New Hampshire cocaine dealer, who in 2007 formed a partnership with another dealer in the state, Renaury Ramirez Garcia ("Ramirez"). In the Fall of that year, the two sought a new source of drugs in Texas, where they met with defendant Lopez, who introduced them to a man known as "Molina." Molina later sent them several large shipments of cocaine, which Hernandez and Ramirez in turn sold to other dealers in New Hampshire, New York, and Massachusetts. Much of the drugs and the proceeds from the sales were stored in [the house of Janeth Sarmiento ("Janeth"), Hernandez's girlfriend and one of the coconspirators, ] on Brown Avenue in Manchester, New Hampshire. [In addition to Janeth, the other residents of the Brown Avenue house included her father, Jose Cisneros ("Cisneros"), and her brother, Robert Sarmiento ("Sarmiento").]
The partners were imprudent, however, and after too many sales of cocaine on credit they eventually owed Molina several hundred thousand dollars, a debt that led Ramirez to seek another source of cocaine that he could sell to pay off the debt. He found one right in New Hampshire and made a deal to buy ten kilograms of cocaine for $230, 000. The source, however, was a government informant, and when Ramirez traveled to Manchester to get the drugs in March 2009, an undercover agent arrested him.
As a consequence, Ramirez's girlfriend, Nicole Kalantzis, decided to cooperate with the government in order to obtain leniency for her boyfriend. In her new capacity, she met with Hernandez, who told her that a large shipment of cocaine would soon be delivered to New Hampshire, and that they had to sell it quickly because the "big guys" were coming to collect the money owed.
On April 8, 2009, Lopez and Garcia arrived at the Brown Avenue house [in a white Ford pickup truck], followed four days later by a [tractor-trailer driven by one Adolfo Casas ("Casas")] carrying the cocaine. Soon after, the police videotaped Hernandez [and Casas] transferring cocaine from [the tractor-trailer onto the bed of the pickup truck. A short time later, the police videotaped Hernandez and Cisneros moving the cocaine from the pickup truck] into the trunk of a [white] Cadillac parked behind the house, with Lopez standing 15 feet away, talking on a cellphone.
Later [on April 12, 2009], law enforcement officers including a SWAT team executed a warrant to search the house and arrested its inhabitants... Ledgers seized had details of drug shipments and several references to Garcia and Lopez. Finally, after drug-sniffing dogs confirmed the earlier surveillance evidence, the agents found a large amount of cocaine in the Cadillac parked behind the house.
United States v. Lopez Garcia, 672 F.3d 58, 60-61 (1st Cir. 2012). Garcia was arrested during the April 12, 2009 raid. Following a four-day trial, he was convicted in April 2010 of conspiracy to distribute cocaine and to possess it with intent to distribute.
B. Evidence Against Garcia
The government produced a formidable body of evidence to demonstrate Garcia's involvement in the conspiracy, including the testimony of two coconspirators and an array of physical evidence that corroborated the coconspirators' accounts. This evidence included:
Nine ounces of cocaine were found in the basement bedroom at the Brown Avenue house. Other drug paraphernalia was also found on the table in the basement bedroom, including a heat sealer, a digital scale, packaging material, an industrial-sized roll of wrapping material, and inositol.
Drug ledgers were found in the Brown Avenue house. These ledgers contained references to Garcia, including an entry reading "18, 000 (Marco and Tomas)."
After he was arrested, Garcia admitted to the police that he had arrived at the Brown Avenue house four days before the raid in a white Ford pickup truck. Garcia claimed that he had traveled to New Hampshire to pick up a vehicle and drive it to Mexico, and he expected to receive $500 in payment for doing so. Garcia could not, however, identify the vehicle that he was to drive back to Mexico. Garcia admitted to the police that he had been sleeping in the basement bedroom where the cocaine was found the night before the raid.
Janeth Sarmiento testified that she had first met Garcia in 2008 in Texas. She testified that she would sometimes count drug proceeds with Hernandez, Ramirez, Garcia, and Tomas Cruz ("Cruz"), another coconspirator who reported to Hernandez. Cruz and Garcia, she testified, would occasionally transport some of this money to Texas in the white Ford Mustang. She also testified that Cruz and Garcia had transported ten kilograms of cocaine to New Hampshire in the white Ford Mustang in early March 2009. She admitted, however, that she had learned of this delivery from Hernandez and that she never personally saw cocaine or money being placed into the Mustang.
Janeth also testified that she had made certain entries in the drug ledgers found in the Brown Avenue house. She testified that certain ledger entries pertained to Garcia and Cruz and that she had deposited money into both men's bank accounts at Hernandez's direction.
On March 28, 2009, the same white Ford Mustang that Cruz and Garcia used to transport cocaine was stopped in Mississippi. Police found eight kilograms of cocaine and five kilograms of heroin in the car. Cruz was a passenger in the vehicle when it was stopped. Police arrested Cruz and found a water bill for Garcia and contact numbers for Lopez and Hernandez inside his wallet. The white Ford Mustang was insured in the name of Garcia's wife, and Garcia was listed as a permitted driver.
Ramirez testified that he met Lopez in Texas in late 2007. Lopez, Ramirez testified, planned to find another source of cocaine for Hernandez and Ramirez. He explained that he and Hernandez arranged for cocaine to be transported to New Hampshire from Texas. In late 2008 or early 2009, 50 kilograms of cocaine were delivered to New Hampshire and stored at the Brown Avenue house. Ramirez took 35 kilograms of this shipment to Lowell, Massachusetts to sell. Proceeds from these sales were then brought back to the Brown Avenue house and counted in the basement.
Ramirez testified that he distributed ten kilograms of cocaine to another person but never received payment. He testified that Garcia and Cruz brought ten kilograms to New Hampshire to replace the ten kilograms he had lost. The ten kilograms brought by Garcia and Cruz were stored in the basement of the Brown Avenue house.
Finally, Ramirez testified that he would sometimes pick up supplies of cocaine from Garcia at the Brown Avenue house. He also testified that he would sometimes speak to Cruz or Garcia if Hernandez was not available and that he would sometimes count drug proceeds with Cruz and Garcia.
After the police arrested Garcia, they found a State of Texas document identifying him as the owner of the white Ford Mustang inside his wallet.
Telephone records listed hundreds of calls between numbers associated with Hernandez and Garcia ...