United States v. Diaz-Castro

752 F.3d 101, 2014 WL 2142516, 2014 U.S. App. LEXIS 9622
CourtCourt of Appeals for the First Circuit
DecidedMay 23, 2014
Docket12-2038
StatusPublished
Cited by25 cases

This text of 752 F.3d 101 (United States v. Diaz-Castro) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Diaz-Castro, 752 F.3d 101, 2014 WL 2142516, 2014 U.S. App. LEXIS 9622 (1st Cir. 2014).

Opinion

LYNCH, Chief Judge.

Defendant Javier Diaz-Castro, formerly of the Puerto Rico Police Department (PRPD), was caught committing crimes through a sting operation aimed at corrupt police officers. Diaz-Castro provided armed protection at what he believed were two drug deals approximately five weeks apart in February and March 2010. He was found guilty by a jury on multiple counts of conspiracy to possess with intent to distribute a controlled substance, attempt to possess with intent to distribute a controlled substance, and possession of a firearm in relation to a drug trafficking crime. Following his conviction, Diaz-Castro was sentenced to 40 years’ imprisonment.

Diaz-Castro appeals, arguing that various aspects of his conviction and sentence were erroneous. Like many caught in sting operations, he argues entrapment, along with other issues. We affirm the convictions and sentence.

I.

Seeking to combat corruption in the PRPD, in 2008, the FBI began a large sting operation, known as “Operation Guard Shack,” as has been detailed in other cases arising out of the same operation. See United States v. Delgado-Marrero, 744 F.3d 167, 171-72 & n. 1 (1st Cir.2014); United States v. Díaz-Maldonado, 727 F.3d 130, 134 (1st Cir.2013). The FBI recruited PRPD officers to work for it as confidential informants; those officers then invited suspect PRPD officers to participate for pay by providing armed protection for (sham) drug transactions. See Díaz-Maldonado, 727 F.3d at 134. The officers who so participated often recruited other officers into the scheme. See *105 Delgado-Marrero, 744 F.3d at 172-73 & n. 5.

In late January or early February 2010, Diaz-Castro was invited by fellow PRPD officer Angel Rivera-Ortiz, known as “Kento,” to provide armed protection at a drug deal on February 4, 2010. Diaz-Castro and Kento were apparently friends. Kento was a target in the sting operation, as he had been recruited for and had participated in two other Guard Shack deals before this one.

On February 4, Diaz-Castro and Kento arrived at the apartment in Guaynabo, Puerto Rico, where the deal was to take place. They drank beer and socialized with the purported seller, undercover agent Germán Vázquez. Diaz-Castro and Kento moved into position when the purported buyer arrived. They frisked the buyer and took up security positions around the room. A video of the deal shows that Diaz-Castro carried his regulation firearm during the transaction. The deal was for eight kilograms of cocaine; during the deal, the buyer counted out six kilograms in front of Diaz-Castro. After the deal was consummated, as caught on tape, Kento and Diaz-Castro were each paid $2,000. 1

Later (the record does not reveal the precise date), Diaz-Castro was contacted directly by a confidential informant, who invited him to provide protection at another drug deal if he brought along another police officer willing to provide the illicit protection. Diaz-Castro recruited Ramón Benítez-Falcon, a friend and fellow PRPD officer. Diaz-Castro also told Benítez-Falcon to bring a handgun with him, as the PRPD had taken Diaz-Castro’s police-issued weapon on March 4, 2010, because a domestic violence complaint had been filed against him.

This second transaction took place at the Conrad Hotel in San Juan, Puerto Rico on March 12, 2010. Like the first transaction, Diaz-Castro spent time drinking and socializing with the other participants in the deal, then moved into position when the buyer arrived. At the request of the undercover officer, Vázquez, Diaz-Castro handed him a bag purportedly containing nine kilograms of cocaine, which Vázquez passed along to the buyer; the buyer pulled out and inspected five kilograms. The deal successfully concluded. Diaz-Castro and Benítez-Falcon were each paid $2,000. After getting paid, Diaz-Castro stayed in the room with the purported seller and others, drinking beer and socializing.

On September 16, 2010, a federal grand jury indicted Diaz-Castro on six counts. The charges came within a broader indictment reaching other officers who had been caught in the same set of sham drug transactions, including Kento and Benítez-Fal-con. 2 The counts relevant to Diaz-Castro were:

Count 8: Conspiracy to possess with intent to distribute a controlled substance, from January 27 to February 4, 2010, under 21 U.S.C. §§ 841(a)(1) and 846.
Count 9: Attempt to possess with intent to distribute a controlled substance on February 4, 2010, under 21 U.S.C. §§ 841(a)(1) and 846.
Count 10: Possession of a firearm in relation to a drug trafficking *106 crime, on February 4, 2010, under 18 U.S.C. § 924(c).
Count 14: Conspiracy to possess with intent to distribute a controlled substance, from February 16, 2010 to March 12, 2010, under 21 U.S.C. §§ 841(a)(1) and 846.
Count 15: Attempt to possess with intent to distribute a controlled substance, on March 12, 2010, under 21 U.S.C. §§ 841(a)(1) and 846.
Count 16: Aiding and abetting possession of a firearm in relation to a drug trafficking crime, on March 12, 2010, under 18 U.S.C. § 924(c).

Diaz-Castro went to trial and was convicted by a jury on all six counts in December 2011. The jury also made special findings that the February 4 drug deal (Counts 8-9) involved eight kilograms of fake cocaine, while the March 12 drug deal (Counts 14-15) involved nine kilograms.

The district court sentenced Diaz-Castro in July 2012. Diaz-Castro received the mandatory minimum sentence on all counts: 10 years for each of the drug trafficking and conspiracy counts (Counts 8, 9, 14, and 15), 5 years for the first firearms count (Count 10), and 25 years for the second firearms count (Count 16). See 21 U.S.C. § 841(b)(1)(A) (drug trafficking crimes); 18 U.S.C. § 924(c)(l)(A)(i) (firearms in drug offense); 18 U.S.C.

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Cite This Page — Counsel Stack

Bluebook (online)
752 F.3d 101, 2014 WL 2142516, 2014 U.S. App. LEXIS 9622, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-diaz-castro-ca1-2014.