20-3996 United States v. Lopez
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 27th day of January, two thousand twenty-one.
PRESENT: JOHN M. WALKER, JR., RICHARD J. SULLIVAN, EUNICE C. LEE, Circuit Judges, _____________________________________
UNITED STATES,
Appellee,
v. No. 20-3996
FRANCISCO LOPEZ,
Defendant-Appellant. *
_____________________________________
* The Clerk of Court is respectfully directed to amend the official caption as set forth above. For Defendant-Appellant: ROBERT A. CULP, Law Office of Robert A. Culp, Garrison, NY.
For Respondent-Appellee: NATHANIEL J. GENTILE (Marc H. Silverman, on the brief), Assistant United States Attorneys, for Leonard C. Boyle, Acting United States Attorney for the District of Connecticut.
Appeal from the United States District Court for the District of Connecticut
(Janet C. Hall, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
Defendant-Appellant Francisco Lopez appeals his conviction following a
jury trial for conspiracy to distribute 100 grams or more of heroin in violation of
21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(i) and 846, and use of a telephone to facilitate a
drug trafficking felony in violation of 21 U.S.C. §§ 841(a)(1) and 843(b). We
assume the parties’ familiarity with the underlying facts, procedural history, and
issues on appeal.
Lopez challenges the sufficiency of the evidence presented at trial. We
review challenges to the sufficiency of trial evidence de novo. United States v. Lyle, 919 F.3d 716, 737 (2d Cir. 2019). Even on de novo review, however,
“defendants face a heavy burden” because we must sustain the jury’s verdict if,
“credit[ing] every inference that could have been drawn in the government’s
favor” and “viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” United States v. Ho, 984 F.3d 191, 199 (2d
Cir. 2020) (internal quotation marks omitted).
Lopez argues that the government’s case – which principally relied on
intercepted phone calls and text messages and not physical evidence or direct
testimony – was insufficient to prove that Lopez conspired to distribute heroin or
that Lopez used a telephone to further that conspiracy. We disagree.
“The gist of conspiracy is, of course, agreement.” United States v. Beech-Nut
Nutrition Corp., 871 F.2d 1181, 1191 (2d Cir. 1989). To prove membership in a
conspiracy, the government must show “that the person charged with conspiracy
knew of the existence of the scheme alleged in the indictment and knowingly
joined and participated in it.” United States v. Snow, 462 F.3d 55, 68 (2d Cir. 2006)
(internal quotation marks omitted). Once the government has proven that a
conspiracy exists, “the evidence sufficient to link another defendant to [the conspiracy] need not be overwhelming.” United States v. Nusraty, 867 F.2d 759,
762 (2d Cir. 1989) (internal quotation marks omitted).
At trial, the government’s cooperating witness, Lliver Abreu-Baez, testified
that from January 2018 through December 2018 he provided approximately 8–10
kilograms of heroin to Larry Hall on credit. Hall stored the heroin in a garage
next to his house, and would then sell the heroin to his own customers. One of
those customers was Pedro Santos, who in turn sold heroin to Lopez. To establish
the existence of the conspiracy and Lopez’s membership in it, the government
introduced a series of intercepted phone calls and text messages between Hall and
Santos and between Santos and Lopez in which the men discussed Lopez’s plans
to buy heroin from Hall. Because many of the communications were conducted
in code, the government called an expert witness to testify about the heroin trade
and commonly used expressions employed by heroin traffickers. See United
States v. Dukagjini, 326 F.3d 45, 52 (2d Cir. 2003) (“[W]e have consistently upheld
the use of expert testimony to explain both the operations of drug dealers and the
meaning of coded conversations about drugs.”).
Viewing that evidence in the light most favorable to the government, as we
must, we have no hesitation in finding that there was sufficient proof for the jury to conclude that Lopez entered into an agreement to buy distribution-level
quantities of heroin from Hall and Santos. Although Lopez is correct that none
of the calls in which he was a participant ever expressly referenced heroin, his use
of the terms “buck fifty,” “dollar-fifty,” and “one-and-a-half” were consistent with
the expert’s testimony about slang used by drug dealers to describe gram
quantities of narcotics, and were followed by more explicit references to 150 and
190, which Santos described as “forty cent more” than the “one-and-a-half” that
Lopez had ordered. Appellant App’x at 365. Lopez’s request for “a dollar-fifty”
from Santos was followed by a call from Santos to Hall, the supplier, in which
Santos asked for “[o]ne hundred and fifty” and reminded Hall that the “house
number is . . . 6-2 now.” Appellant App’x at 453. This evidence, combined with
Abreu-Baez’s testimony that he supplied Hall with heroin and the expert’s
testimony that a gram of heroin typically sold for approximately $60 per gram,
provided ample basis for the jury to conclude that Lopez was negotiating heroin
sales with Santos and Hall.
Lopez alternatively argues that even if the evidence was sufficient to show
that he agreed to purchase heroin from Hall, his conduct falls under the “buyer-
seller exception” to narcotics-conspiracy liability. To be sure, we have long recognized an exception to narcotics-conspiracy liability for “the mere purchase
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20-3996 United States v. Lopez
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 27th day of January, two thousand twenty-one.
PRESENT: JOHN M. WALKER, JR., RICHARD J. SULLIVAN, EUNICE C. LEE, Circuit Judges, _____________________________________
UNITED STATES,
Appellee,
v. No. 20-3996
FRANCISCO LOPEZ,
Defendant-Appellant. *
_____________________________________
* The Clerk of Court is respectfully directed to amend the official caption as set forth above. For Defendant-Appellant: ROBERT A. CULP, Law Office of Robert A. Culp, Garrison, NY.
For Respondent-Appellee: NATHANIEL J. GENTILE (Marc H. Silverman, on the brief), Assistant United States Attorneys, for Leonard C. Boyle, Acting United States Attorney for the District of Connecticut.
Appeal from the United States District Court for the District of Connecticut
(Janet C. Hall, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
Defendant-Appellant Francisco Lopez appeals his conviction following a
jury trial for conspiracy to distribute 100 grams or more of heroin in violation of
21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(i) and 846, and use of a telephone to facilitate a
drug trafficking felony in violation of 21 U.S.C. §§ 841(a)(1) and 843(b). We
assume the parties’ familiarity with the underlying facts, procedural history, and
issues on appeal.
Lopez challenges the sufficiency of the evidence presented at trial. We
review challenges to the sufficiency of trial evidence de novo. United States v. Lyle, 919 F.3d 716, 737 (2d Cir. 2019). Even on de novo review, however,
“defendants face a heavy burden” because we must sustain the jury’s verdict if,
“credit[ing] every inference that could have been drawn in the government’s
favor” and “viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” United States v. Ho, 984 F.3d 191, 199 (2d
Cir. 2020) (internal quotation marks omitted).
Lopez argues that the government’s case – which principally relied on
intercepted phone calls and text messages and not physical evidence or direct
testimony – was insufficient to prove that Lopez conspired to distribute heroin or
that Lopez used a telephone to further that conspiracy. We disagree.
“The gist of conspiracy is, of course, agreement.” United States v. Beech-Nut
Nutrition Corp., 871 F.2d 1181, 1191 (2d Cir. 1989). To prove membership in a
conspiracy, the government must show “that the person charged with conspiracy
knew of the existence of the scheme alleged in the indictment and knowingly
joined and participated in it.” United States v. Snow, 462 F.3d 55, 68 (2d Cir. 2006)
(internal quotation marks omitted). Once the government has proven that a
conspiracy exists, “the evidence sufficient to link another defendant to [the conspiracy] need not be overwhelming.” United States v. Nusraty, 867 F.2d 759,
762 (2d Cir. 1989) (internal quotation marks omitted).
At trial, the government’s cooperating witness, Lliver Abreu-Baez, testified
that from January 2018 through December 2018 he provided approximately 8–10
kilograms of heroin to Larry Hall on credit. Hall stored the heroin in a garage
next to his house, and would then sell the heroin to his own customers. One of
those customers was Pedro Santos, who in turn sold heroin to Lopez. To establish
the existence of the conspiracy and Lopez’s membership in it, the government
introduced a series of intercepted phone calls and text messages between Hall and
Santos and between Santos and Lopez in which the men discussed Lopez’s plans
to buy heroin from Hall. Because many of the communications were conducted
in code, the government called an expert witness to testify about the heroin trade
and commonly used expressions employed by heroin traffickers. See United
States v. Dukagjini, 326 F.3d 45, 52 (2d Cir. 2003) (“[W]e have consistently upheld
the use of expert testimony to explain both the operations of drug dealers and the
meaning of coded conversations about drugs.”).
Viewing that evidence in the light most favorable to the government, as we
must, we have no hesitation in finding that there was sufficient proof for the jury to conclude that Lopez entered into an agreement to buy distribution-level
quantities of heroin from Hall and Santos. Although Lopez is correct that none
of the calls in which he was a participant ever expressly referenced heroin, his use
of the terms “buck fifty,” “dollar-fifty,” and “one-and-a-half” were consistent with
the expert’s testimony about slang used by drug dealers to describe gram
quantities of narcotics, and were followed by more explicit references to 150 and
190, which Santos described as “forty cent more” than the “one-and-a-half” that
Lopez had ordered. Appellant App’x at 365. Lopez’s request for “a dollar-fifty”
from Santos was followed by a call from Santos to Hall, the supplier, in which
Santos asked for “[o]ne hundred and fifty” and reminded Hall that the “house
number is . . . 6-2 now.” Appellant App’x at 453. This evidence, combined with
Abreu-Baez’s testimony that he supplied Hall with heroin and the expert’s
testimony that a gram of heroin typically sold for approximately $60 per gram,
provided ample basis for the jury to conclude that Lopez was negotiating heroin
sales with Santos and Hall.
Lopez alternatively argues that even if the evidence was sufficient to show
that he agreed to purchase heroin from Hall, his conduct falls under the “buyer-
seller exception” to narcotics-conspiracy liability. To be sure, we have long recognized an exception to narcotics-conspiracy liability for “the mere purchase
and sale of drugs.” United States v. Brock, 789 F.3d 60, 63 (2d Cir. 2015). Instead,
“[t]o sustain a conspiracy conviction, the government must present some evidence
from which it can reasonably be inferred that the person charged with conspiracy
knew of the existence of the scheme alleged in the indictment and knowingly
joined and participated in it.” United States v. Rodriguez, 392 F.3d 539, 546 (2d Cir.
2004) (internal quotation marks omitted). Here, the evidence introduced at trial
amply demonstrated that Lopez knew of the scheme to distribute heroin and
joined in it. The intercepted phone calls and texts revealed that Lopez engaged
in multiple transactions for wholesale quantities of heroin with Santos and Hall,
that he was given priority over other, lesser-known buyers, and that he was
permitted to purchase heroin on credit. After Lopez and Santos were stopped by
police officers, each contacted Hall to let him know about the stop and urge him
to “cleanup shop” and “be safe.” Based on the evidence introduced at trial, we
find that there was sufficient evidence for the jury to conclude that Lopez
knowingly joined in the conspiracy and that his conduct did not fall within the
buyer-seller exception. See United States v. Rojas, 617 F.3d 669, 675 (2d Cir. 2010)
(considering factors such as whether there was mutual trust between the buyer and the seller, whether the buyer and seller had a long-standing relationship, and
whether the buyer purchased redistribution quantities of illegal drugs when
determining the applicability of the buyer-seller exception).
Finally, Lopez argues that the government failed to show that he joined in
the particular conspiracy charged in the indictment – which included twenty-nine
individuals – as opposed to a smaller conspiracy limited to Lopez, Santos, and
Hall. But the law is clear that “[e]ven where there are multiple groups within an
alleged conspiracy, a single conspiracy exists where the groups share a common
goal and depend upon and assist each other, and we can reasonably infer that each
actor was aware of his part in a larger organization where others performed
similar roles.” United States v. Chavez, 549 F.3d 119, 126 (2d Cir. 2008) (internal
quotation marks omitted) abrogated on other grounds by Dean v. United States, 137 S.
Ct. 1170 (2017). The defendant need not know “all of the details of the
conspiracy,” nor the “identities of all of the other conspirators,” so long as they
agreed on the essential nature of the plan. United States v. Huezo, 546 F.3d 174,
180 (2d Cir. 2008). From the evidence introduced at trial, it is clear that Lopez
agreed on the essential nature of the plan (trafficking heroin) and that he knew he
was part of a collective venture. We have considered Lopez’s remaining arguments and find them to be
without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court