United States v. Gonzalez-Ramirez

561 F.3d 22, 2009 WL 806885
Court of Appeals for the First Circuit·Decided March 30, 2009·No. 07-1880·Published·Cited by 35 cases

Opinions

HOWARD, Circuit Judge.

Appellant Fernando Gonzalez-Ramirez (“Gonzalez”) was convicted of conspiring to distribute and aiding and abetting the distribution of cocaine. He was sentenced to twenty years in prison. On appeal, Gonzalez claims that the district court erred in denying his pre-trial motion for a competency hearing and in admitting certain evidence. He also asserts that the evidence was legally insufficient to convict him, and that his sentence violated his constitutional rights. Finding no error, we affirm the conviction and sentence.

I. FACTUAL BACKGROUND

We review the facts in the light most favorable . to the jury’s verdict. United States v. Marin, 523 F.3d 24 (1st Cir.2008). In January 2006, law enforcement authorities were investigating two Rhode Island men, Estoredarico Bernard (“Belige”), and Eucraneo Severino (“Severino”). The investigation included surveillance of a liquor store that Belige owned and operated, an import/export business owned and operated by Severino, and Severino’s residence.

During this time period, Gonzalez lived in Denver, Colorado, where he served as a middleman for Colorado-based cocaine dealers tied to Mexican drug cartels. His role was to find customers in the northeast United States. Belige was one such customer.

In late January, authorities eavesdropped on a telephone call from Gonzalez to Belige, in which Gonzalez left the message, “Uncle. I am Fernando. Call me back whenever you can to [a phone number].” Two days later, Belige listened to the message three times, and then returned the call, leaving the following message: “Your uncle is calling you. Call me back.” Gonzalez returned the call and the two spoke for a short time. The conversation went as follows:

Belige1 (“B”): Hello.
Gonzalez (“G”): Oh, Hello, uncle, how have you been?
B: Go ahead, go ahead, go ahead.
G: [Chuckles]
B: Where were you? Were you lost?
G: No, there wasn’t any. [chuckles].
B: [chuckles]
G: Oh well things were calm.
B: Oh that’s good.
G: Yeah.
B: Yeah.
G: So, are you working?
B: Yeah.
G: Yeah?
B: Yeah.
G: Do you want me to take a ride over?
B: Come over today.
G: [Chuckles] It’s just that I’m getting it for you way too high.
B: Oh, s — t, then you’re not right.
G: Huh?
B: What ... where are you driving?
G: Come again?
B: What’s the mileage? How much are you driving?
[25] G: For 19.
B: What? You are crazy (laughter)(unintelligible) is here this week.
G: Yeah?
G: And what about 18}£?
B: Huh?
G: 18%
B: Well — it can be done.
G: Yeah?
B: To help you out.
G: Yeah, well let me — let me see if I can get ready right away and I’ll call you in the afternoon.
B: What?
G: That I’ll be ready right away and I’ll call you in the afternoon.
B: Well come over here before the other one arrives.
G: Yeah, yeah. If I go, I’ll be arriving in two days.
B: Oh, around Saturday. Saturday?
G: Yeah.
B: Okay.
G: Alright.

According to Central Falls, R.I., Detective Dorian Rave2, the above conversation was actually rife with coded language concerning the delivery of cocaine to Belige. For example, “there wasn’t any” was an indication that Gonzalez had been out of contact because of a depleted cocaine supply; when he asked whether Belige was “working,” Gonzalez was asking whether Belige was dealing drugs; finally, the discussion of “mileage” — 18/6 and 19 — was actually the price per kilogram in thousands of dollars.

True to his word, Gonzalez called Belige later the same day. This shorter conversation went as follows:

B: Hello.
G: Uh what s up uncle, it s me Fernando.
Talk to me Fernando. td
Oh I couldn’t do that. It didn’t work out for me. I need you to just to — just for 19. O
Oh but it doesn’t work out that way. td
It doesn’t work out? Yeah, but he’ll leave in the morning and the guy has them but I wasn’t able to get them. O
What was that? td
He didn’t want to — go lower. O
Damn, that’s rough that way. That’s not much profit. td
Yeah? O
There’s no profit there. td
What did you say? o
That there’s not much profit there. td
Yeah. Q
Uh. td
No, well think about it-if you want and I’ll look for another guy to see what comes up, if you’re a go call me that those are there. O
Well then. Uh, then when would that be here? td
Yeah, he’s-he would be leaving in the morning and arrives Saturday in the afternoon or Sunday morning. O
Uh. Well, then come over to help you out. td
Yeah? O
Come over to help you out. td
Oh then thank you man. O
Okay. td
Alright. O

[26] Detective Rave decoded this conversation to mean that Gonzalez could go no lower than the $19,000 per kilogram price discussed earlier in the day. Despite the protest about the small profit, Belige agreed after Gonzalez informed him that a courier would leave the next morning (a Wednesday) and deliver the cocaine to Be-lige Saturday or Sunday.

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United States v. Gonzalez-Ramirez, 561 F.3d 22, 2009 WL 806885 (1st Cir. 2009).

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