United States v. Pérez-Meléndez

599 F.3d 31, 2010 U.S. App. LEXIS 5518
Court of Appeals for the First Circuit·Decided March 17, 2010·No. Nos. 08-2225, 08-2226·Published·Cited by 35 cases

Opinion

TORRUELLA, Circuit Judge.

This is a consolidated opinion addressing two related appeals. Each appeal arises [33]*33from criminal convictions stemming from events of October 11, 2007, when Daniel Pérez-Meléndez (“Pérez-Meléndez”) and Ángel Rivera-Ríos (“Rivera-Ríos”) (collectively “appellants”) were transporting what law enforcement officials discovered to be forty kilograms of cocaine. After careful review of the record, because we find that the evidence adduced at trial was insufficient to support the jury verdict, we reverse the district court’s rulings and remand the case to the district court with instructions to enter judgments of acquittal.

I. Background

A. Facts

We outline the facts relevant to the appeals. Other details may be found in the district court’s opinion. See United States v. Pérez-Meléndez, 571 F.Supp.2d 322 (D.P.R.2008).

1. Doral Freight Logistics

When she testified at trial, Virginia Maria Cruz-Martinez (“Cruz-Martinez”) had been a customer service employee for three years at Doral Freight Logistics (“Doral”), a Caribbean shipping company based in Amelia Industrial Park in Guaynabo, Puerto Rico. Cruz-Martinez testified that shipments from the Dominican Republic come to Doral via a sealed van on a boat that docks at Mayaguez, Puerto Rico, and then are driven by the shipper to Doral’s headquarters in Guaynabo. Cruz-Martinez stated that when such a van arrives at Doral, the manifest that is included with the shipment is sent to the Customs and Treasury departments for the appropriate clearances. Once the clearances are returned to Doral, Doral notifies the client that the merchandise is available and provides the client with the option of either picking up the merchandise or having Doral deliver it. If the client opts to pick up the merchandise and sends truck drivers to do so, Doral verifies that all clearances have been obtained and then provides the driver with a receipt to sign. Doral then gives the driver a copy of the receipt and a copy of the manifest, the latter of which “states all the shipments that are inside the van.” If the client opts to have Doral deliver the merchandise, Doral hires “independent drivers” and pays them based on the size of the load and the distance to the destination. Cruz-Martinez said that Doral would pay a driver approximately $70-$100 to deliver a load to Caguas, approximately $200 to deliver a load to Ponce, and approximately $250 to deliver a load to Mayaguez.

According to Cruz-Martinez, Industria de Sobres Dominicanos, S.A. (“ISD”), a company in the Dominican Republic, sent six shipments of wrapped pallets of reams of paper to Doral between May and October of 2007, to be ultimately delivered to another company, Industrial Paper, in Puerto Rico. Cruz-Martinez testified that it is not Doral’s company policy to unwrap such pallets to open them. Usually, ISD would pay for its shipment by money order before pick-up, but on one occasion, Cruz-Martinez said, “the truck drivers” may have paid during pick-up. Cruz-Martinez stated that someone identifying himself as José Albarrán (“Albarrán”) would call on behalf of ISD to provide instructions about when the shipment would be sent and picked up, and to inquire about the status of the clearance. Cruz-Martinez said she never met Albarrán in person, having dealt with him only over the telephone.

Cruz-Martinez testified that she was present at work for four of the six shipments ISD sent to Doral for Industrial Paper, and that appellants picked up all four of them. These shipments were dated May 15, June 9, August 18, and October 6 as the dates of departure from the Do[34]*34minican Republic. Cruz-Martinez further testified that Rivera-Ríos signed for three of the shipments but that he twice indicated his first name was “Angel” and the third time indicated it was “Raúl.” Cruz-Martinez stated that the signature on the fourth receipt — dated October 11, 2007 as the pick-up date — was difficult to read but that she thought that the first name was “Raúl,” “David,” or “Daniel,” and the last name was “Meléndez-Pérez.”

2. Vehicle Identification

On October 11, 2007, at approximately 1:30 p.m., Luis Crespo (“Crespo”), an Alcohol, Tobacco, Firearms, and Explosives (“ATF”) Task Force Agent of the Puerto Rico Police Department, and another ATF Task Force Agent received a telephone call from a confidential source. The source reported that a white truck located in Amelia Industrial Park behind R.J. Reynolds contained “some kilos” of cocaine intended for shipment. The source further reported that three people were planning to rob the truck of its contents, and provided the names of these individuals and the makes, models, and license plate numbers of the vehicles they would be driving. The source did not provide Pérez-Meléndez’s name.1 Crespo notified his superiors and then went to the designated area with the purpose of finding the truck, which he did. Crespo followed the truck from Amelia Industrial Park to the Plaza del Mercado, the farmer’s market area, of Caguas, where the truck stopped and ATF agents, including Crespo, approached it. The ATF agents told the truck driver, Pérez-Meléndez, and the only passenger, Rivera-Ríos, to exit the vehicle.

3. Vehicle Search

At 3:15 p.m., Pérez-Meléndez provided handwritten consent to ATF and Drug Enforcement Agency (“DEA”) agents to search the truck. Pérez-Meléndez wrote the consent in Crespo’s presence and signed it, along with a different ATF agent and a DEA agent. The agents then searched the truck, in which they found what appeared to be six pallets of paper wrapped in plastic. After not detecting any narcotics themselves, the agents called the K-9 Division of the Puerto Rico Police Department, which sent a dog that was trained to detect the presence of controlled substances. After being commanded to search the contents of the truck, the dog indicated, by scratching with his front paws, the possibility that drugs were in some of the pallets.

Later that day, Crespo and other agents sought a search warrant to search the truck, as identified by its license plate number, model, color, and Vehicle Identification Number. During that process, the truck was taken to the DEA’s High Intensity Drug Trafficking Area office in Hato Rey. After a judge authorized the search warrant at 11:38 p.m. and until around 3:00 a.m. the following day, Crespo and other agents unloaded and searched the pallets of paper, discovering what amounted to forty kilograms of cocaine. Expert witnesses for the government testified at trial about the specific characteristics and value of the cocaine. One expert stated that the shipment was cocaine hydrochloride, 70.4 percent pure, with a net weight of 20.02 kilograms. Another expert stated that the value of the cocaine was, per kilogram, $16,000 wholesale or $40,000 retail, for a total street value of $1.6 million. Crespo and other agents were not able to deter[35]*35mine the cargo’s destination either during their fourteen-hour intervention or by the time Crespo testified on April 28, 2008.

4. Appellants’ Questioning

Neither appellant testified at trial. As such, “no question is raised about what inferences a jury may rationally draw from its observation of [their] testimony.” United States v. Nieves-Castaño, 480 F.3d 597, 601 (1st Cir.2007). However, both appellants were questioned on October 11, 2007.

a.

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