United States v. Rodríguez-Milián

820 F.3d 26
Court of Appeals for the First Circuit·Decided April 19, 2016·No. No. 14-1976·Published·Cited by 18 cases

Opinion

SELYA, Circuit Judge.

A party who fails to preserve potential claims of error in the trial court usually encounters strong headwinds on appeal. [30]*30So it is here. Concluding that the appellant’s asseverational array is largely un-preserved and wholly unpersuasive, we affirm his conviction and sentence. We nonetheless remand to allow the district court to consider a sentence reduction under a recent amendment to the sentencing guidelines.

I. BACKGROUND

We recite the background facts “in the light most hospitable to the verdict, consistent with record support.” United States v. Maldonado-García, 446 F.3d 227, 229 (1st Cir.2006). Starting in 2005, a drug-trafficking organization headed by the notorious Junior Cápsula smuggled cocaine by sea from the Dominican Republic into Puerto Rico aboard yawls specially retrofitted with secret compartments. After law enforcement personnel seized two of the vessels, the drug ring began to consider alternative modes of transportation (including airplanes).

In June of 2009, defendant-appellant Carlos E. Rodríguez-Milián became involved with a scheme to fly drug shipments from the Dominican Republic to Puerto Rico and to ferry cash on return flights. Shortly after this plot was hatched, the appellant purchased a small aircraft that he thereafter used to transport a leader in the drug ring from Puerto Rico to the Dominican Republic. Later that summer, the appellant and a confederate, Jeffrey Núñez-Jiménez (Núñez), transported roughly $500,000 in illegal drug-sale proceeds from Puerto Rico to the Dominican Republic.

A subsequent flight by the two men in the appellant’s recently-purchased airplane took place on August 22, carrying a cargo of no less than 50 kilograms of cocaine. Spotted on radar when it entered Puerto Rican airspace, their airplane aroused suspicion because it failed to communicate with anyone, flew past Borinquen Airport, and descended instead into Arecibo Airport (which was not an authorized port of entry for international air traffic). The airplane landed before any law enforcement personnel arrived to investigate. Two men (later identified as Diego Pérez and Fernando Nieves) approached the aircraft, while a third man, José Marrero-Martell, watched from a nearby automobile. Marrero-Martell testified that Junior Cápsula had told him that he (Cápsula) had delivered cocaine to the appellant and Núñez. Junior Cápsula then added that Marrero-Martell should pick up the drugs from the airport.

An airport security guard became inquisitive at the sight of all the activity around the appellant’s aircraft. When the guard approached, the appellant told Pérez that h,e would distract the guard while the bags were unloaded. The appellant told the guard (falsely) that Pérez and Nieves had arrived by parachute. The guard then instructed the appellant not to take off until customs officials could arrive, and shortly thereafter put the appellant'em the telephone with a customs agent. The appellant suggested that the landing at Are-cibo was due to electrical problems and that his real destination was Isla Grande Airport. In the meantime, the other three men (Pérez, Nieves, and Núñez) unloaded bags filled with cocaine from the aircraft and stashed them in a waiting automobile; The car then departed and — about 35 minutes after landing at Arecibo — the appellant and Núñez flew away before customs officials could arrive.1

In due season, a federal grand jury returned an indictment that targeted, among [31]*31other things, the broad drug-trafficking conspiracy headed by Junior Cápsula. One count of the indictment, . however, charged the appellant with participating in a narrower conspiracy to import five or more kilograms of cocaine into the customs territory of the United ■ States. See 21 U.S.C. §§ 952(a), 963. -At trial, Marrero-Martell and Pérez testified for the government as cooperating witnesses. ■ The jury found the appellant guilty on the single count lodged against him and, on August 22, 2014, the district court sentenced him to serve a 235-month term of immurement. This timely appeal ensued.

II. ANALYSIS

The appellant, represented on appeal by new counsel, attacks on several fronts. His claims of error can conveniently be segregated into four tranches. ' We address each tranche separately and then tie up a loose end.

A. Sufficiency of the Evidence.

The appellant’s flagship claim is that the government' failed to prove beyond a reasonable doubt his specific intent to engage in a conspiracy to traffic narcotics. Since the appellant did not at any time move for judgment of acquittal below, see Fed.R.Crim.P. 29, we review this claim only for clear and gross injustice, see United States v. Gobbi, 471 F.3d 302, 309 (1st Cir.2006); United States v. Greenleaf, 692 F.2d 182, 185 (1st Cir.1982); see also Magee v. BEA Constr. Corp., 797 F.3d 88, 90 & n. 2 (1st Cir.2015). Nothing of the sort occurred here.

In considering a claim-of eviden-tiary -insufficiency, “we must take the facts in the light most hospitable to the prosecution, drawing all reasonable inferences in its favor.” United States v. Hadfield, 918 F.2d 987, 996 (1st Cir.1990), We are not at liberty to question the credibility of

witnesses. See United States v. O'Brien, 14 F.3d 703, 706 (1st Cir.1994). Moreover, we are constrained to recognize that. “Reliance on indirect, as opposed to direct, evidence in a criminal case is both permissible and commonplace.” United States v. Spinney, 65 F.3d 231, 234 (1st Cir.1995). Even with respect to a preserved challenge to the sufficiency of evidence, the verdict must stand as long as it derives support from a “plausible rendition of the record.” United States v. Ortiz, 966 F.2d 707, 711 (1st Cir.1992).

To sustain a conviction for conspiracy, 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). The existence of a conspiracy, as well as a particular defendant’s membership in it, may be “inferred from the defendant[’s] 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 government need not show that each conspirator knew of or had contact with all other members. Nor need it show that the conspirators knew all of the details of the conspiracy or participated in every act in furtherance of the conspiracy.” United States v. Soto-Beníquez, 356 F.3d 1, 19 (1st Cir.2003).

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United States v. Rodríguez-Milián, 820 F.3d 26 (1st Cir. 2016).

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