United States v. Merced-Nieves

• Court: Court of Appeals for the First Circuit
• Decided: October 17, 2000
• Docket: 99-1114
• Status: Published

Opinion

[NOT FOR PUBLICATION — NOT TO BE CITED AS PRECEDENT]

United States Court of Appeals For the First Circuit

No. 99-1114

UNITED STATES OF AMERICA, Appellee,

v.

WALTER MERCED-NIEVES, Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Salvador E. Casellas, U.S. District Judge]

Before

Selya, Circuit Judge,

Bownes, Senior Circuit Judge,

and Lipez, Circuit Judge.

John Ward-Llambias, by appointment of the court, for appellant. Jacabed Rodriguez-Coss, Assistant United States Attorney, with whom Guillermo Gil, United States Attorney, and Jorge E. Vega-Pacheco, Assistant United States Attorney, were on brief, for appellee.

October 17, 2000 SELYA, Circuit Judge. On April 10, 1997, a federal

grand jury sitting in the District of Puerto Rico returned a

three-count indictment against a number of individuals. In

Count 2 of the indictment, the grand jury charged several

persons, including Walter Merced-Nieves, with conspiring to

distribute controlled substances in violation of 21 U.S.C. §

846. In Count 3 of the same indictment, the grand jury charged

some of the same individuals, including Merced-Nieves, with

using and carrying firearms during and in relation to the

commission of a drug-trafficking offense. See 18 U.S.C. §

924(c)(1). Following a five-week trial, a petit jury found

Merced-Nieves guilty as charged. The district court thereafter

sentenced him to a term of life imprisonment on the conspiracy

charge and, ironically, to a consecutive five-year prison term

on the firearms charge. Merced-Nieves appeals. 1 Having

carefully reviewed the record, we affirm.

The appellant's basic argument entails a challenge to

the sufficiency of the evidence. This challenge invokes a

familiar standard of review: when evaluating the sufficiency of

1 Merced-Nieves stood trial with eight other alleged coconspirators (all of whom were found guilty), and we consolidated the nine ensuing appeals. Seven of them, including this one, were argued together on September 14, 2000. The other two were submitted on the briefs to the same panel. We have elected to decide this appeal in a separate opinion.

-3- the evidence presented against a defendant in a criminal case,

an appellate court must "canvass the evidence (direct and

circumstantial) in the light most agreeable to the prosecution

and decide whether that evidence, including all plausible

inferences extractable therefrom, enables a rational factfinder

to conclude beyond a reasonable doubt that the defendant

committed the charged crime." United States v. Noah, 130 F.3d

490, 494 (1st Cir. 1997).

The principal statute of conviction here is 21 U.S.C.

§ 846. To convict a defendant of violating that statute, the

government must "show beyond a reasonable doubt that a

conspiracy existed and that a particular defendant agreed to

participate in it, intending to commit the underlying

substantive offense." United States v. Sepulveda, 15 F.3d 1161,

1173 (1st Cir. 1993). Proof of the illicit agreement requires

"no particular formalities." Id. Thus, a defendant may join in

a drug-trafficking conspiracy without knowing the full extent of

the enterprise or the identities of all the coconspirators. See

United States v. Rivera-Santiago, 872 F.2d 1073, 1079 (1st Cir.

1989). By like token, the government may satisfy its burden

through either direct or circumstantial evidence, or through any

combination of the two. See United States v. Marrero-Ortiz, 160

F.3d 768, 772 (1st Cir. 1998); United States v. Hernandez, 146

-4- F.3d 30, 33 (1st Cir. 1998). In short, both the conspiracy's

existence and a particular defendant's membership in it may be

inferred from the participants' "words and actions and the

interdependence of activities and persons involved." United

States v. Boylan, 898 F.2d 230, 241-42 (1st Cir. 1990).

The remaining count of conviction implicates 18 U.S.C.

§ 924(c)(1), which provides in pertinent part that: "[Whoever,]

during and in relation to any . . . drug trafficking crime . .

. for which he may be prosecuted in a court of the United

States, uses or carries a firearm, shall . . . [be given

additional punishment]." In order to convict under the "use"

prong of this statute, the government must show "actual use" of

a firearm, a standard that "'includes brandishing, displaying,

bartering, striking with, and most obviously, firing or

attempting to fire, a firearm.'" United States v. Valle, 72

F.3d 210, 217 (1st Cir. 1995) (quoting Bailey v. United States,

516 U.S. 137, 148 (1994) (citations omitted)). To convict under

the "carry" prong of the statute, the government must prove

beyond a reasonable doubt that the defendant knowingly carried,

conveyed, or transported a firearm. See Muscarello v. United

States, 524 U.S. 125, 126 (1998). Finally, the government must

prove the requisite nexus between this use or carriage and a

drug-trafficking crime. See, e.g., United States v. Bergodere,

-5- 40 F.3d 512, 518 (1st Cir. 1994); United States v. Hadfield, 918

F.2d 987, 998 (1st Cir. 1990).

Against this backdrop, we turn to the appellant's

paramount assignment of error. Merced-Nieves concedes, as he

must, that the government proved the existence of a large, long-

lasting conspiracy to distribute various controlled substances.

The initial question, then, is whether the government also

proved that he was part and parcel of it. The secondary

question is whether the government proved that he used or

carried a firearm to facilitate the ring's drug-trafficking

exploits. The record suggests that both of these questions must

be answered affirmatively.

At trial, the government adduced competent evidence

that Merced-Nieves sold narcotics for the ring and that he

routinely carried a firearm in the course of those felonious

activities. The government also adduced evidence that Merced-

Nieves participated in other facilitative conduct, including

sundry carjackings and drive-by shootings of rival gang members.

This evidence, when viewed in the light most favorable to the

prosecution, suffices to undergird his convictions. See, e.g.,

Rivera-Santiago, 872 F.2d at 1079 (holding that "[t]he fact that

[the defendant] participated in one retail link of the

distribution chain, knowing that it extended beyond his

-6- individual role, [is] sufficient" to demonstrate his culpability

as a member of a drug-trafficking conspiracy); United States v.

Collazo-Aponte, 216 F.3d 163, 195 (1st Cir. 2000) (holding that

to transgress section 924(c)(1), "it is enough that the

appellant carried the firearms during the [drug related

shootings] and therefore used the weapons in furtherance of the

drug conspiracy").

The appellant seeks to deflect the force of this proof

by assailing the credibility of the government's several

witnesses. But that line of attack avails him naught. In

passing upon challenges to the sufficiency of the evidence, we

are bound to refrain from making independent judgments as to

witness credibility. See Noah, 130 F.3d at 494; United States

v. Echeverri, 982 F.2d 675, 677 (1st Cir. 1993). We recently

summed up this principle in United States v. Alicea, 205 F.3d

480 (1st Cir. 2000), in which we wrote that "[e]xcept in the

most unusual circumstances . . . credibility determinations are

for the jury, not for an appellate court." Id. at 483. The

circumstances here are not extraordinary, so this case comes

within the sweep of this general rule, not within the long-odds

exception to it.

-7- The appellant puts a twist on his credibility theme,

struggling to invoke the specter of a witness-bribery statute

that provides in pertinent part:

Whoever . . . directly or indirectly, gives, offers or promises anything of value to any person, for or because of the testimony under oath or affirmation given or to be given by such person as a witness upon a trial, hearing, or other proceeding, before any court . . . authorized by the laws of the United States to hear evidence or take testimony . . . shall be fined under this title or imprisoned for not more than two years, or both.

18 U.S.C. § 201(c)(2). In 1998, a Tenth Circuit panel held that

this statute forbade testimony given in exchange for promised

leniency, and applied an exclusionary rule to remedy perceived

violations. See United States v. Singleton, 144 F.3d 1343 (10th

Cir. 1998) (Singleton I). The appellant acknowledges that

Singleton I has been withdrawn and that the Tenth Circuit,

sitting en banc, has repudiated it. See United States v.

Singleton, 165 F.3d 1297, 1298 (10th Cir. 1999) (en banc)

(Singleton II), cert. denied, 527 U.S. 1024 (1999). The

appellant also acknowledges that this court has disavowed the

reasoning of Singleton I. See United States v. Lara, 181 F.3d

183, 198 (1st Cir. 1999). He nonetheless argues that the spirit

of Singleton I persists, and that the rationale behind the

decision — namely, that testimony from government witnesses who

-8- have received inducements to testify is inherently unreliable —

justifies the reversal of the jury verdict in this case.

We reject this specious argument. While the testimony

of cooperating witnesses must always be scrutinized with care,

see, e.g., United States v. LiCausi, 167 F.3d 36, 47 (1st Cir.

1999), the witnesses here were subjected to withering cross-

examination by several sets of defense counsel, and the jury was

properly instructed to weigh their testimony in light of the

promises made and inducements tendered. The jury apparently

found the witnesses credible. We know of no authority that

would permit us, in the circumstances of this case, to second-

guess the jury's assessment. We therefore decline to accept the

appellant's reading of either the letter or the spirit of

section 201(c)(2). See Lara, 181 F.3d at 198; Singleton II, 165

F.3d at 1298; see also United States v. Lowery, 166 F.3d 1119,

1122-24 (11th Cir. 1999); United States v. Ramsey, 165 F.3d 980,

987 (D.C. Cir. 1999); United States v. Ware, 161 F.3d 414, 418-

25 (6th Cir. 1998), cert. denied, 526 U.S. 1045 (1999); United

States v. Haese, 162 F.3d 359, 366-68 (5th Cir. 1998), cert.

denied, 526 U.S. 1138 (1999).

We need go no further. To the extent that the

appellant offers other arguments, they are either undeveloped,

or obviously meritless, or both. We conclude that the evidence

-9- introduced at trial, taken in the light most congenial to the

government's theory of the case, amply supported the jury

verdict on both counts of conviction. Accordingly, the judgment

below must be

Affirmed.

-10-