United States v. Carlos Lopez, Also Known as Charlie Chan, Also Known as Chan Rafael Lopez, Also Known as Tito

372 F.3d 86, 2004 U.S. App. LEXIS 11331, 2004 WL 1260056

• Court: Court of Appeals for the Second Circuit
• Decided: June 9, 2004
• Docket: Docket 02-1746(L), 02-1748(CON)
• Status: Published

Opinions

Judge NEWMAN dissents in a separate opinion.

B.D. PARKER, JR., Circuit Judge.

Carlos Lopez and his brother, Rafael Lopez, appeal from judgments of conviction entered by the United States District Court for the Eastern District of New York (John Gleeson, Judge). Following a two-week trial, a jury convicted both defendants of racketeering conspiracy in violation of 18 U.S.C. § 1962(d) (Count I) and conspiracy to distribute and possess with intent to distribute cocaine base in violation of 21 U.S.C. § 846 (Count II). The jury also convicted Carlos Lopez of obstruction of justice murder in violation of 18 U.S.C. § 1512(a)(1)(C) (Count III). The District Court subsequently sentenced Carlos and Rafael Lopez principally to concurrent terms of life imprisonment on each of the counts for which they were respectively convicted. Both appeal, raising various challenges to their convictions and sentences. We write solely to explain our reversal of Carlos Lopez’s conviction of obstruction of justice murder on the basis of insufficiency of the evidence, and we affirm as to all other issues raised in this appeal in a summary order issued with this opinion.¹

BACKGROUND

In early 1999, the Federal Bureau of Investigation and the New York City Police Department learned through a cooperating witness, Victor Cruz, that Carlos Lopez murdered an individual named Edward Montalvo in 1991 and that from 1989 through 1996 Lopez led a violent crew of crack cocaine dealers operating principally in the vicinity of a flower shop in the East New York section of Brooklyn, New York. Other leaders of the organization included his brother, Rafael Lopez, and Jose Salce-do.

With respect to the murder of Montalvo (the sole focus of this opinion), NYPD Officer Brenda Soto-Ramos testified at trial that, on August 17, 1991, she took a complaint from Montalvo, who reported that he had been threatened at gunpoint by Lopez. Soto-Ramos testified that Montalvo provided her with Lopez’s nickname, “Charlie,” and with a detailed physical description.

In addition, NYPD Officer Brian Connolly testified that, on the following day, he went to Montalvo’s home, where Mon-talvo lodged another complaint against Lopez. In that complaint, Montalvo again provided a detailed description of Lopez, renewed his complaint about Lopez’s prior threat, and stated that Lopez had returned that day with another man, that both were armed and that both had threatened him. Montalvo also informed Connolly that Lopez could be found at the corner of Pennsylvania and Flatlands Avenues, the location of a flower shop from which the defendants ran their narcotics operation.

After receiving this information from Montalvo, Connolly went to the flower shop and found Lopez sitting on a milk crate. After identifying Lopez, Connolly searched the vicinity and discovered two loaded handguns in the milk crate. Connolly then arrested Lopez for criminal possession of the weapons and menacing.

Following Lopez’s arrest, the Kings County District Attorney’s office decided not to prosecute him for criminal possession of the guns and, instead, charged him with the less serious crimes of assault, menacing, and attempted criminal mischief. Montalvo was present when the decision was made not to charge Lopez with the gun crimes and nervously reacted to that decision, exclaiming that “they’re going to get out and they’ll kill me.” In an effort to ensure his safety, on August 19, the day after Lopez’s arrest, Montalvo obtained a temporary order of protection against Lopez from a state court.

After he was released from police custody, Lopez complained to fellow members of his drug organization that Montalvo was bringing “heat,” or police presence, to the flower shop and that Montalvo intended to testify against him in state court criminal proceedings. Salcedo testified at trial that Lopez repeatedly told him that Montalvo had told the police about the threats, that Montalvo was making him and the flower shop drug sale location “hot,” and that he had to “get rid” of him. Another associate of Lopez, Andre Eugene, similarly testified that Lopez asked him in the summer of 1991 to kill Montalvo because Montalvo had caused Lopez’s arrest for possessing firearms.

The government’s trial evidence established that Lopez murdered Montalvo. On August 30, Lopez enlisted the aid of two members of the flower shop organization, one acting as a getaway driver and the other as a lookout, and went to Montalvo’s apartment building. Lopez waited in the stairwell on the floor where Montalvo’s apartment was located, and when Montal-vo came out of his apartment, Lopez approached him in the hallway and shot him repeatedly. Lopez subsequently described to other flower shop members how he had murdered Montalvo.

In April 2001, a grand jury indicted Lopez for, among other things, the obstruction of justice murder of Montalvo in violation of 18 U.S.C. § 1512(a)(1)(C), a count on which he was subsequently convicted at trial. Lopez appeals.

DISCUSSION

Lopez contends that the evidence at trial was insufficient to convict him under section 1512(a)(1)(C), which makes it unlawful to commit murder to prevent communications to a federal official about a federal crime. In challenging the sufficiency of the evidence, Lopez bears a “heavy burden.” United States v. Diaz, 176 F.3d 52, 89 (2d Cir.1999); accord United States v. Romero, 54 F.3d 56, 61 (2d Cir.1995). In reviewing such a challenge, we must “view the evidence, whether direct or circumstantial, in the light most favorable to the government and credit every inference that could have been drawn in its favor.” Diaz, 176 F.3d at 89; accord Romero, 54 F.3d at 61. Moreover, we “assess the evidence not in isolation but in conjunction ... and the convictions must be affirmed, so long as, from the inferences reasonably drawn, the jury might fairly have concluded guilt beyond a reasonable doubt.” Diaz, 176 F.3d at 89 (internal citation omitted); accord Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); United States v. Podlog, 35 F.3d 699, 705 (2d Cir.1994). In other words, a conviction will be affirmed if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319, 99 S.Ct. 2781 (emphasis in original).

Lopez contends that, at most, the evidence demonstrated his intention to obstruct a state investigation and that the government adduced no evidence that the murder might impact a federal investigation because no such investigation existed. The government maintains that it established the requisite federal nexus under section 1512(a)(1)(C) because it proved that Lopez committed a crime punishable under federal as well as state law, and, since Montalvo repeatedly turned to the local police for personal security, it is reasonable to assume that he might eventually have turned to federal law enforcement officials. We believe that the proof was inadequate to establish a violation of the statute, though for reasons that differ from those urged by Lopez.

We begin our analysis with the text of the statute. Specifically, section 1512(a)(1)(C) makes it unlawful to kill or attempt to kill another person “with intent to ... prevent the communication by any person to a law enforcement officer ... of the United States of information relating to the commission or possible commission of a Federal offense.” 18 U.S.C. § 1512(a)(1)(C). Section 1515 defines a “law enforcement officer” as “an officer or employee of the Federal Government, or a person authorized to act for or on behalf of the Federal Government or serving the Federal Government as an adviser or consultant.” Id. § 1515(a)(4). Section 1512(g) further provides that in a prosecution for an offense under section 1512, “no state of mind need be proved with respect to the circumstance ... that the law enforcement officer is an officer or employee of the Federal Government or a person authorized to act for or on behalf of the Federal Government or serving the Federal Government as an adviser or consultant.” Id. § 1512(g)(2).

We previously have explained that, because section 1512(g) expressly does not require that the government prove a defendant’s “state of mind” with respect to the federal employment of the law enforcement officer, it is irrelevant that a defendant only intends to prevent the victim from speaking with local or state, as opposed to federal, law enforcement officers. Diaz, 176 F.3d at 90-91; United States v. Gonzalez, 922 F.2d 1044, 1054 (2d Cir.1991). As we made clear in Diaz, “ ‘the government is not obligated to prove that the defendant knew or intended.anything with respect to this federal involvement.’ ” 176 F.3d at 91 (quoting United States v. Bell, 113 F.3d 1345, 1349 (3d Cir.1997)).² Therefore, we reject Lopez’s argument that the evidence was insufficient because it proved only his intention to obstruct a local investigation.

We also reject Lopez’s contentions that a federal investigation must be underway or that Montalvo must have been willing or available to cooperate with federal officials. As we held in Romero:

[T]he government did not need to offer proof that [the victim] was willing to cooperate or that an investigation was underway. Rather, the statute is directed at the “intent to prevent ... communication” with federal authorities. See 18 U.S.C. § 1512(a)(1)(C). The government need prove only an intent to kill for the purpose of interfering with communication with federal law enforcement officials. The victim need not have agreed to cooperate with any federal authority or even to have evinced an intention or desire to so cooperate. There need not be an ongoing investigation or even any intent to investigate. Rather, the killing of an individual with the intent to frustrate the individual’s possible cooperation with federal authorities is implicated by the statute.

54 F.3d at 62.

However, Romero ultimately is of limited guidance here because it involved evidence that the defendant and his criminal organization “had become suspicious that [the victim] was cooperating with federal authorities.” 54 F.3d at 59 (emphasis added). Specifically, the defendant had learned that an indictment had been filed in federal court, charging him and other members of his organization with narcotics and RICO violations. The defendant and his organization also had learned that the victim had not been named in that indictment, had apparently been released promptly each time he was arrested, and had attempted to involve an organization member in nareotics-related conversations. Id. at 58-59. We held that this evidence constituted a sufficient evidentiary predicate for the jury’s conclusion that the defendant committed murder to prevent the victim’s possible cooperation with federal authorities. Id. at 62.

In the absence of the type of evidence found sufficient in Romero to establish the requisite federal nexus, the government contends that it was established here by evidence that Montalvo reported Lopez to the local police on more than one occasion, which resulted in his arrest for gun possession and menacing, that Lopez was motivated to kill Montalvo to prevent him from bringing police to the flower shop, and that Lopez had stipulated that his possession of firearms on the date of his arrest would have constituted a federal offense. In other words, the government contends that a federal nexus was established by proof that a federal crime was committed and that Montalvo was willing to cooperate with the local police. According to the government, nothing more is required to establish the federal nexus.

We cannot agree that this evidence was sufficient to prove obstruction of justice murder in violation of section 1512(a)(1)(C). In Diaz, we adopted the Third Circuit’s formulation of the government’s burden of proof, explaining that

“the -government must prove that at least one of the law-enforcement-officer communications which the defendant sought to prevent would have been with a federal officer, but that the government is not obligated to prove that the defendant knew or intended anything with respect to this federal involvement. ... [T]he government may carry this burden by shoiving that the conduct which the defendant believed would be discussed in these communications constitutes a federal offense, so long as the government also presents ‘additional appropriate evidence.’ ”

176 F.3d at 91 (quoting Bell, 113 F.3d at 1349) (emphasis added and alteration in original). Because the government seeks to carry its burden in this case by showing that the underlying conduct to be discussed involved a federal offense, it therefore must also present “additional appropriate evidence.” Id.

Examples of “additional appropriate evidence” include proof that the defendant had “actual knowledge of the federal nature of the offense” or proof that “there was a federal investigation in progress” at the time of the murder. United States v. Stansfield, 101 F.3d 909, 918 & n. 4 (3d Cir.1996); see also Bell, 113 F.3d at 1349-51 & n. 4 (expressing no opinion as to what additional types and what quantum of evidence satisfy the “additional appropriate evidence” standard, “which by its nature will require careful, case-by-case analysis”). In Diaz, for instance, we found the evidence sufficient because the defendant intended to prevent the victim from communicating with local officials about a federal offense, and that the defendant knew federal officials could record his telephone conversations that he conducted from federal prison with another member of his gang regarding “disciplining]” the victim, and that during the relevant time period “federal authorities were in fact working closely with local police on a massive federal investigation of the [defendant’s] gang’s drug activities.” 176 F.3d at 90-91. And in every other case in this or in any other circuit that has addressed this issue and affirmed a conviction there similarly has been at least some evidence of federal involvement beyond the underlying federal crime to be discussed with the federal official. See, e.g., Romero, 54 F.3d. at 59 (“For a number of reasons, members of Romero’s organization had become suspicious that Tyson was cooperating with federal authorities.”); Gonzalez, 922 F.2d at 1046-47, 1053-54 (involving federal offense and investigation by the federal Drug Enforcement Administration); Bell, 113 F.3d at 1347, 1350 (involving federal offense and investigation by task force comprised of local, state, and federal investigators); Stansfield, 101 F.3d at 919 (involving federal offense and federal investigation); United States v. Leisure, 844 F.2d 1347, 1364 (8th Cir.1988) (involving evidence that victim would “‘turn over and talk to the FBI’ ”).

Where there has been no such federal involvement, however, other courts have found the evidence insufficient. See, e.g., United States v. Causey, 185 F.3d 407, 422-23 (5th Cir.1999). Such cases have been, and likely will be, rare. As we have explained, after all, “the killing of an individual with the intent to frustrate the individual’s possible cooperation with federal authorities is implicated by the statute.” Romero, 54 F.3d at 62 (emphasis added). Yet there must be evidence — not merely argumeni&wkey;of such a possibility. In other words, the government must adduce evidence from which a rational juror could infer that the victim plausibly might have turned to federal officials.

Here, the government has adduced no such “additional appropriate evidence.” All the government proved was that conduct punishable under both state and federal law was involved and that Montalvo was willing to communicate with local authorities. The government did show that Montalvo feared for his life after the district attorney declined to pursue more serious charges. But even after that decision, Montalvo did not turn to federal officials; instead, he returned to local authorities for a protective order. There simply is no evidence that, despite the passage of over ten days between the issuance of the protective order and his murder, Montalvo ever turned to, or gave so much as a moment’s thought of turning to, federal officers, or that federal agents were otherwise involved. The government provided no evidence, for example, that a federal investigation was underway, that federal authorities were in any way involved, that Lopez knew of the federal nature of his offense at the time he murdered Montalvo, or that Montalvo intended to communicate or anticipated communicating with federal authorities. See, e.g., Causey, 185 F.3d at 422-23. It is always possible that Montal-vo someday “might” have turned to federal officials; but the range of things he “might” do is limitless, and no evidence in the record connects this possibility with reality. On these facts, even drawing all reasonable inferences in the government’s favor, we hold that a reasonable jury could not conclude that Lopez killed Montalvo to prevent his communication to a federal law enforcement officer. Accordingly, we reverse Lopez’s conviction on Count III.

CONCLUSION

For the foregoing reasons, as well as the reasons stated in the accompanying summary order, the judgment of the District Court is affirmed in part and reversed in part.

1 . Although the reversal of Carlos Lopez’s conviction on Count III will have no effect on the length of his imprisonment because of the concurrent life sentences he received on Counts I and II, we must still consider the validity of his conviction on Count III since a special assessment was imposed separately on that count, rendering the "concurrent sentence doctrine” inapplicable. See Ray v. United States, 481 U.S. 736, 737, 107 S.Ct. 2093, 95 L.Ed.2d 693 (1987); United States v. Mauro, 80 F.3d 73, 76 (2d Cir.1996); United States v. Griffin, 884 F.2d 655, 656 (2d Cir.1989).

2 . Although Diaz addressed subsection (b)(3) of section 1512, the reasoning is applicable here because the elements of subsections (b)(3) and (a)(1)(C) are, as we explained in Diaz, 176 F.3d at 91, sufficiently similar.