United States v. Shepard-Fraser

784 F.3d 11, 97 Fed. R. Serv. 306, 2015 U.S. App. LEXIS 6692
CourtCourt of Appeals for the First Circuit
DecidedApril 22, 2015
Docket12-1300, 12-2220
StatusPublished
Cited by96 cases

This text of 784 F.3d 11 (United States v. Shepard-Fraser) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Shepard-Fraser, 784 F.3d 11, 97 Fed. R. Serv. 306, 2015 U.S. App. LEXIS 6692 (1st Cir. 2015).

Opinions

THOMPSON, Circuit Judge.

OVERVIEW

Jorge Correa-Osorio and Denise Shepard-Fraser stand convicted of cocaine offenses. Both ask us to reverse, though for different reasons. Correa, for example, thinks the judge quadruply erred — first by admitting identification evidence (because a witness made him off a highly suggestive and unreliable procedure), next by admitting key statements under the coconspirator exception to the hearsay rule (because the government showed neither that he was in on the conspiracy nor that the statements furthered the conspiracy’s aim), then by admitting evidence of a cocaine-filled suitcase (because the evidence was irrelevant, prejudicial, and confusing), and finally by committing cumulative error (because the net effect of what the judge did made his trial fundamentally unfair). He is wrong. Shepard, for her part, thinks the judge doubly erred — first by finding the evidence sufficient to support her convictions (because the government did not prove guilty knowledge) and then by giving her a 128-month prison term (because the sentence was proeedurally and substantively unreasonable). But she is wrong too. We will explain our thinking shortly, right after we set out the case’s background.

BACKGROUND

This case should seem familiar to any regular reader of the Federal Reporter, given that it concerns yet another major cocaine conspiracy involving a creative distribution network, a large cast of coconspirators (some with colorful nicknames), and a turncoat who became the government’s star witness.

(1)

The Conspiracy at a Glance

Running from June 2006 to June 2008, the conspiracy — led by a man named Manuel Santana-Cabrera (also known as “El Boss”) — operated like this. Recruited couriers took commercial flights from San Juan to mainland cities, including Philadelphia and New York. Before boarding, they would check luggage filled with old clothes, pillows, blankets, etc. — stuff that could get through security without incident. Other conspirators working at the airport would switch the checked luggage with luggage packed with cocaine. Couriers would then fly to their destinations, claim their checked bags, and hand them off to a taxi driver — known to some as “Manopla”— who was in on the conspiracy too. Couriers would make $3,000 a trip.

(2)

The Conspiracy’s Unraveling

In September 2006 DEA agents in Philadelphia heard from their colleagues in San Juan that there was something fishy about the flight itineraries of José Vega-Torres and two others, who were flying from San Juan to New York after a layover in Philly.1 The Philadelphia agents [15]*15looked for and found the trio’s bags. After a drug-detecting dog alerted to the odor of drugs, agents got a search warrant. Their search struck pay dirt: each bag had at least 13 brick-shaped objects wrapped in a blanket, and the objects field-tested positive for cocaine.

Agents arrested Vega and his two sidekicks in New York. Vega initially told a pack of lies about why he had cocaine in his luggage, who had given it to him, who had asked him to go to New York, and who had chauffeured him to the airport. But he eventually agreed to come clean and cooperate in exchange for the government’s promise not to indict his wife on conspiracy-related charges too (she was with him on one of his smuggling trips to New York). His cooperation later led to the arrest of Correa and Shepard (plus others) and to much of the evidence the government used at trial (Correa and Shepard were tried together).

(3)

The Case Against Correa

At trial Vega identified Correa, calling him by a nickname, “El Don.” And he testified about the times that he saw him in 2006, apparently (he did not recall the exact dates).

The first time, Vega had gone to leader Santana’s house with a conspirator named Israel Martes-Canales (nicknamed “Shaq”). While there, he and Martes helped load six suitcases into the trunk of Correa’s car. The suitcases were similar in size and weight to drug luggage Vega had picked up in New York. Correa told Santana that he was actually using his wife’s car and that he would “get in trouble” if she found out what he was up to. And after Correa left, Santana told Vega that “Don” was “in charge of taking bags into the airport and putting them inside the plane.”

Vega later saw Correa working at the San Juan airport. About to jet off to New York to deliver more cocaine, he spotted Correa on the tarmac, loading bags onto a plane.

As for the last occasion, Vega went one time with Martes and another conspirator named Ricardo Soler-Rivera to drop a bag off at Correa’s house. Soler said the bag had $90,000, just before he gave it to Correa.

Seeking to undermine his credibility, Correa’s lawyer extensively cross-examined Vega on a number of topics. Vega, for example, testified about the inducements he received for cooperation, the big one being the government’s pledge not to go after his wife if he played ball. Beyond that, he confessed to not telling agents about “El Don” during an early debriefing, even though other conspirators’ names easily rolled off his tongue. And despite saying how a conspirator told him that the mainland-bound suitcases contained cocaine, he admitted to not personally knowing whether that was in fact true. He also admitted to never seeing Correa handle any of his checked luggage. What is more, he said that “El Don” had braided hair — something the defense played up because Correa later testified that he did not have braids in 2006.

On redirect Vega said that he personally knew Correa was part of the Santana-drug-trafficking cabal. But the government did not just rely on Vega’s testimony to help tell the conspiracy’s story. As part of its case-in-chief, the government, for example, also presented (over defense objections) evidence concerning the seizure of a cocaine-filled suitcase at the San Juan airport on October 4, 2007. The prosecution’s theory was that evidence about the suitcase constituted overt-act evidence [16]*16linking the defendants to the conspiracy. Here is what you need to know.

Marionel Báez-Peña — an airport-worker-turned-convict — testified that he loaded drug luggage onto planes for two people: kingpin Santana and a person named Maximo Bencosme-Aybar (also known as “Phantasma”). Báez had done two jobs for Santana. And he was set to do one for Bencosme on October 4.2 But he was not feeling well that day, so he asked airport-worker Miguel Ramos-Santi to help out. Another airport worker, Luis del-Valle-Febres, testified that early on the morning of October 4, Ramos asked him to put a tag on a suitcase left on a cart. And del-Valle did just that.

Unfortunately for those involved, DEA-agent Hector Tapia-Gerena — a member of the team investigating Santana’s drug doings — got (according to Ms testimony) a tip that day about a suspicious suitcase at the San Juan airport. Springing into action, he headed for the airport’s baggage carousel and spied an unattended suitcase on a cart. The bag’s tag read September 23. A drug-sniffing dog detected the presence of contraband. And x-rays of the suitcase showed — in outline — block-shaped items. Agents opened the bag and saw pillows, towels, and t-shirts, plus 13 bricks of powder that tested positive for cocaine. One thing led to another, and agents arrested Báez, Ramos, and del-Valle.

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Cite This Page — Counsel Stack

Bluebook (online)
784 F.3d 11, 97 Fed. R. Serv. 306, 2015 U.S. App. LEXIS 6692, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-shepard-fraser-ca1-2015.