United States v. Garcia-Hernandez

659 F.3d 108

• Court: Court of Appeals for the First Circuit
• Decided: February 24, 2012
• Docket: 10-2146
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 10-1913

UNITED STATES OF AMERICA,

Appellee,

v.

CIRO LOPEZ GARCIA

Defendant, Appellant.

No. 10-1914

MARCO GARCIA,

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul Barbadoro, U.S. District Judge]

Before

Selya, Circuit Judge, Souter, Associate Justice,* and Lipez, Circuit Judge.

* The Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by designation. Roberto J. Yzaguirre, with whom Yzaguirre & Chapa, was on brief, for appellant Ciro Lopez Garcia. Joseph M. Wrobleski, Jr. for appellant Marco Garcia. Seth R. Aframe, Assistant United States Attorney, with whom John P. Kacavas, United States Attorney, was on brief, for appellee.

February 24, 2012

-2- SOUTER, Associate Justice. The defendant-appellants,

Ciro Lopez Garcia (“Lopez”) and Marco Garcia (“Garcia”) were

convicted of conspiracy to distribute cocaine, and to possess it

with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1),

841(b)(1)(A)(ii), and 846. Lopez claims that the evidence was

insufficient to prove him a conspirator, and in the alternative he

challenges the sentencing judge’s finding of the amount of the drug

attributable to him. Garcia raises plain error in admitting

evidence of law enforcement officers’ precautions in executing a

search warrant, and in the trial court’s failure to declare a

mistrial sua sponte in response to prosecution testimony referring

to a threat of violence by one of Garcia’s co-conspirators and to

the Mexican origin of the drugs. We see no reversible error and

affirm.

Lopez’s cousin, 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”). See United States v. Garcia-Hernandez, 659 F.3d 108

(1st Cir. 2011). 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

-3- were stored in Hernandez’s girlfriend’s house on Brown Avenue, in

Manchester, New Hampshire.

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, followed four days later by a truck carrying the

cocaine. Soon after, the police videotaped Hernandez transferring

cocaine into the trunk of a Cadillac parked behind the house, with

Lopez standing 15 feet away, talking on a cellphone.

Later that day, law enforcement officers including a SWAT

team executed a warrant to search the house and arrested its

inhabitants. The agents found a bag of Lopez’s personal items,

-4- including a cellphone with information for contacting “Molina.”

They also found, in the living room where Lopez had slept for

several nights, another cellphone, to which “Molina” placed a call

the next day. 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.

I.

Although Lopez claims that the government’s attempt to

prove his membership in the conspiracy was inadequate, the evidence

viewed in the light most favorable to the verdict, see United

States v. Troy, 583 F.3d 20, 24 (1st Cir. 2009), adequately shows

his agreement with others to distribute cocaine and posses it with

that intent, see United States v. Famania-Roche, 537 F.3d 71, 78

(1st Cir. 2008) (government must show defendant knew of a

conspiracy and participated in it with intent to agree with his co-

conspirators and to commit the substantive drug offense).

Testimony from a single witness can be enough to support a

conviction, United States v. Meises, 645 F.3d 5, 12 (1st Cir.

2011), and here, two co-conspirators directly implicated Lopez in

the scheme. Ramirez testified that Lopez introduced him and

Hernandez to Molina, who became the New Hampshire dealers’

-5- principal cocaine supplier, while the testimony of Hernandez’s

girlfriend, Janeth Sarmiento, supported the inference that Lopez

was one of the “big guys” who traveled to New Hampshire to collect

money in arrears from the sale of cocaine. Telephone records

revealed that Lopez frequently contacted Hernandez around the time

of the major shipment of cocaine in March 2009, and Lopez was

mentioned by name in the drug ledgers seized in the search of the

house. Evidence showed that Lopez had communicated with Molina on

several cellular telephones, through one of which Molina tried to

reach Lopez the day after the raid. And of course Lopez was

videotaped within 15 feet of the cocaine that Hernandez was moving

to the trunk of the Cadillac. Summed up, this was enough evidence

to allow a reasonable jury to find without serious question that

Lopez was a conspirator.

The evidence just canvassed also blows cold on Lopez’s

challenges to the district court’s attribution to him of over 150

kilograms of cocaine, which we review for clear error. United

States v. Cinton-Echautegui, 604 F.3d 1, 6 (1st Cir. 2010).

Although a conspirator is responsible only for foreseeable conduct

by members of the conspiracy (including himself) acting within the

scope of the agreement (here, to distribute drugs), United States

v. Laboy, 351 F.3d 578, 583 (1st Cir. 2003), the district court’s

conclusion by a preponderance of the evidence, see id., that Lopez

had conspired to possess and distribute over 150 kilograms of

-6- cocaine rested on the evidence that Lopez was the conduit to

Molina, the major source of the cocaine. The court pointed to the

many telephone contacts between Lopez and the other distributors,

and cited evidence that large loads of cocaine were shipped north

to New Hampshire using the same driver in similar trucks, and thus

indicating Molina as their common source. It is reasonable to

infer from all this that the cocaine shipments from Molina to

Hernandez and Ramirez, which amounted to over 150 kilograms, were

foreseeable by Lopez and fairly attributable to him.

II.

Garcia’s primary claim is one of error in letting law

enforcement agents testify about the exciting way they executed the

warrant at the Brown Avenue house. An FBI agent told how they used

a SWAT team in anticipation of the firepower drug dealers usually

command when transporting or storing large quantities of drugs, and

a Manchester SWAT team member described the standard tactics used

to subdue high-volume drug dealers like the defendants; here, the

team used a “flash-bang” device, a non-lethal grenade that explodes

with a stunning combination of light and noise, to freeze the

inhabitants of the house at the moment the police enter. The

officer went into the reasons for such aggressive tactics, and

spoke of drug dealers as customarily armed, dangerous, and ready to

fight.

-7- Although Garcia now contends that this evidence was

irrelevant and prejudicial in depicting the defendants as highly

dangerous, he did not object to the testimony at trial, our review

consequently being only for plain error. United States v. Perez-

Ruiz, 353 F.3d 1, 10 (1st Cir. 2003). That is, he must show an

error that was clear and obvious, affecting his substantial rights

and seriously impairing the integrity of the judicial proceedings.

United States v. Rios-Hernandez, 645 F.3d 456, 462 (1st Cir. 2011).

Garcia cannot shoulder the burden.

To begin with, as the Government points out, the

testimony about the flash-bang device and the immediate

apprehension of the house’s inhabitants helped to show that the

conspirators were startled by the SWAT team’s use of force, to the

point of losing any opportunity to move or conceal anything within

the house before the police took control. This evidence helped to

establish that Lopez was probably the owner of a cellphone found in

the living room where he had been sleeping and independently linked

to calls in aid of the conspiracy.1

1 Garcia objects that there was no testimony as to Lopez’s whereabouts when the officers executed the search warrant and that evidence of the inhabitants’ inability to move could therefore not link Lopez to the cellphone in the living room. But evidence that the inhabitants could not conceal items when the police arrived helped establish that the cellphone had not been moved and was, prior to the search, in the living room, where Lopez had been sleeping for several nights.

-8- We do think that Garcia is right in arguing that the

further testimony describing the Government’s motivations for using

force (the general propensity of drug dealers to be armed and

paranoid) is less obviously relevant, and more prejudicially risky,

than the account of the dramatic entry of the house. But it was

not plain error to allow it. Descriptions of the background for

police action can be relevant in preventing jury puzzlement at

otherwise unexplained behavior, and law enforcement agents

accordingly have some leeway to describe the course of their

investigations in order to “set the stage for the testimony to

come.” United States v. Flores-De-Jesus, 569 F.3d 8, 19 (1st Cir.

2009). Here, the justification for the testimony was its hedge

against any suspicion on the part of jurors that the police were

being gratuitously militant and thus too zealous to be trusted, and

we cannot identify any pivotal moment when this background evidence

reached the stage when its threat of prejudice so clearly

outweighed relevance that the judge was required to take action sua

sponte, as defense counsel sat silent. See Fed. R. Evid. 403.

Nor has Garcia demonstrated that the evidence was so

damaging to his substantial rights that it probably affected the

outcome of his trial. See United States v. Gilman, 478 F.3d 440,

447 (2007) (on plain error review, a defendant “must show that the

error was prejudicial in the sense that ‘[i]t must have affected

the outcome of the district court proceedings’”) (quoting United

-9- States v. Olano, 507 U.S. 725, 734 (1993)). Law enforcement

officers testified that, in fact, these defendants turned out to be

unarmed and cooperative, and the jury perfectly well would have

understood that, notwithstanding the general possibility of

violence that explained the force used in entering the house, the

defendants neither employed actual violence in return nor were

outfitted to do so.

Garcia points to United States v. Cunningham, 462 F.3d

708 (7th Cir. 2006), in which the Seventh Circuit ordered a new

trial after a government agent testified to the remarkable number

of government officers and agencies that signed off on a Title III

wiretap order before issuance. The court held the testimony

irrelevant and prejudicial in showing that the officials who

approved the application for the order all believed that the

defendants were in fact committing drug-related crimes, with the

effect of improperly bolstering the credibility of the

prosecution’s evidence. Id. at 713. But this case is far from

Cunningham. Not only did the defendants there object to the

testimony at trial, entitling them to review for abuse of

discretion, id. at 712, not the more onerous plain error standard,

but the Cunningham testimony was irrelevant to anything but the

weight to be given to the prosecution testimony, which the

government was forbidden to bolster by resort to third-party

belief. Here, the testimony about executing the warrant helped

-10- establish Lopez’s connection to a cellphone, which in turn

connected him to Molina, the source of the cocaine.

As a related matter, Garcia argues that the district

court should have declared a mistrial after Hernandez’s girlfriend

testified that she had allowed Hernandez to use her house on Brown

Avenue because she was afraid that he might harm her parents. She

said that Hernandez had told her that he knew her “parents were in

Mexico and that he knew where they were.” Garcia did object to

this, and the district court sustained the objection and allowed no

further testimony on the point. Garcia did not, however, request

a mistrial, and his claim that the district court should have

declared one sua sponte is consequently reviewed like his other

issues, for plain error. United States v. Smith, 101 F.3d 202, 212

(1st Cir. 1996). Again, he does not make the grade.

Hernandez’s girlfriend did not testify that he threatened

her parents directly, and her testimony was cut off before she

could expand on the suggestion of even an indirect threat. The

court could reasonably have assumed that it was sufficiently

satisfactory to disallow any further testimony on the subject,

there being no evidence that Garcia condoned or even had knowledge

of any threat. There was thus no reason for the judge to have

perceived any substantial prejudice to Garcia warranting a

mistrial.

-11- Finally, Garcia raises a third claim of plain error in

the Government’s reference at closing to the “Mexican” connection

of the conspiracy, and argues that the cumulative effect of

mentioning this together with the previous suggestions of drug

violence was to inflame and prejudice the jury against the

defendants to the point of reversible error, even absent objection.

But this is simply far-fetched. The mention of Mexico was not

error per se, for the prosecutor was entitled to point out that the

drugs used in the alleged conspiracy were, in fact, from Mexico,

given the evidentiary basis for saying so. See United States v.

Ovalle-Marquez, 36 F.3d 212, 220 (1st Cir. 1994) (a prosecutor may

mention the foreign origins of a conspiracy when there is evidence

to support the statement). And it is difficult to see how

reference to the Mexican association was likely to add anything to

what generally informed jurors would know in any event, that high

level drug trade is typically violent and that a lot of drugs come

north from Mexico. Inflammation is even the less likely here,

where the jurors heard evidence that these defendants carried no

arms and engaged in no violence.

Affirmed.

-12-