United States v. Garcia-Leon , 530 F. App'x 1 ( 2013 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 11-1459
UNITED STATES OF AMERICA,
Appellee,
v.
ANTONIO GARCÍA-LEÓN, a/k/a Gringo,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Lynch, Chief Judge,
Howard and Kayatta, Circuit Judges.
Ernesto Hernandez-Milan on brief for appellant.
Rosa Emilia Rodriguez-Velez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, and John A.
Mathews II, Assistant United States Attorney, on brief for
appellee.
August 1, 2013
Per Curiam. A jury convicted Antonio García-León of
conspiracy and aiding and abetting possession with intent to
distribute controlled substances. García-León appeals his
conviction on the grounds that the evidence at trial was
insufficient to support the jury's verdict because the government's
witnesses lied when they testified about his activities. Aside
from correcting a clerical error in the judgment as requested by
the parties, we affirm the conviction.
I. Background
This case involves a drug trafficking organization that
operated in the Altos de Cuba Ward in Vega Baja, Puerto Rico. A
grand jury indicted García-León, along with seventy-three others,
for his participation in the organization. The indictment stated
that García-León was a "runner," meaning that he was responsible
for distributing narcotics to sellers and collecting the proceeds
of drug sales. García-León was charged with conspiracy and aiding
and abetting possession with intent to distribute cocaine, crack
cocaine, heroin, and marijuana within 1,000 feet of a school.
At trial, the government called three witnesses who
testified that García-León had sold drugs in Altos de Cuba. Each
of these witnesses had been charged with crimes related to the drug
trafficking organization, and each was promised that the prosecutor
would recommend a lower sentence in exchange for their testimony.
At the close of the government's case, and again at the close of
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evidence, García-León made both general and specific objections to
the sufficiency of the government's evidence. The court denied
the Rule 29 motions. The jury convicted both García-León and his
co-defendant, and García-León appealed.1
On appeal, García-León abandons the two specific
objections he made at trial to the sufficiency of the government's
evidence.2 He argues instead that the evidence against him was
insufficient generally because it depended on incredible testimony
from government witnesses.
II. Analysis
The parties agree that the standard of review is de novo.
We have previously explained that there are good reasons to treat
a Rule 29 motion that raises both general and specific objections
as preserving all sufficiency challenges for de novo appellate
1
García-León's co-defendant, David Lopez-Ortiz, appealed
separately. We permitted Lopez-Ortiz's counsel to withdraw because
the appeal was frivolous, and we affirmed the conviction. See
Anders v. California, 386 U.S. 738 (1967).
2
Arguably, García-León's brief mentions his original argument:
"[T]he grouping of numerous offenses through a given period of time
does not constitute the establishment of an agreement between
groups of individuals by itself for the entire span of the alleged
offenses committed." Even if this oblique statement refers to the
grounds for García-León's Rule 29 motion, it is not enough to
consider the argument to have been adequately presented on appeal.
See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)
("[I]ssues adverted to in a perfunctory manner, unaccompanied by
some effort at developed argumentation, are deemed waived."). In
any event, the jury could have rationally credited the testimony of
the government witnesses as directly implying that García-León
intended to join and assist in the wider narcotic network in which
he actually participated.
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review. See United States v. Marston, 694 F.3d 131, 134-35 (1st
Cir. 2012). Because García-León did precisely that and no party
urges a different standard, we review the denial of García-León's
Rule 29 motion de novo, construing the record evidence in the light
most favorable to the verdict. Id.
Although García-León asks us to hold that the
government's witnesses did not tell the truth, we do not second-
guess the jury's assessment of a witness's credibility. United
States v. Paret-Ruiz, 567 F.3d 1, 5 (1st Cir. 2009). We have
recognized a narrow exception to this rule for a cooperating
accomplice's "facially incredible" uncorroborated testimony.
United States v. Rosario-Diaz, 202 F.3d 54, 67 (1st Cir. 2000).
The testimony of the government's witnesses was not
facially incredible. García-León contends that these witnesses--
Alfredo Sierra, Xiomara Rosado-Pabón, and Jesus Robles-Santana--
testified that he sold drugs or acted as a runner from 1999 to
2008, which would be impossible because he was incarcerated at
various times during that period, including the years 2003 and
2007. García-León mischaracterizes the witnesses' testimony. Each
witness testified about specific times during that period when they
saw García-León selling drugs (including times that he was out of
jail), and times they did not. For example, the witnesses
testified that they did not see García-León in Altos de Cuba in
2007, which seems accurate because he was incarcerated then. While
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Sierra and Rosado-Pabón did testify incorrectly that García-León
sold drugs in 2003, Rosado-Pabón stated that she had very little
contact with him that year. Moreover, the witnesses corroborated
each other's testimony on certain facts, such as the name of a
brand of cocaine that García-León sold. The witnesses' mistakes
(or even lies, if they were lies) regarding García-León's
activities in 2003 do not make the rest of their testimony facially
incredible.3 See United States v. Washington, 434 F.3d 7, 14 (1st
Cir. 2006) ("The testimony of the cooperating co-defendants was
corroborated at trial, and [the appellant] has, at most, pointed
out minor inconsistencies that fall far short of rendering the
testimony facially incredible.").
One final point requires our attention. The parties
agree that the judgment erroneously failed to indicate that García-
León's terms of supervised release are to run concurrently.
Accordingly, although we otherwise affirm, we return this matter to
the district court for correction of the judgment.
III. Conclusion
Because the jury was entitled to believe the government's
witnesses, there was no error in the court's decision to deny a
judgment of acquittal. Accordingly, we affirm the judgment, but
3
García-León points out that the law-enforcement agents who
testified at trial never saw him at the drug distribution points in
2007 and 2008. This is unremarkable; García-León was incarcerated
then. The cooperating witnesses, on the other hand, testified that
García-León sold drugs when he was free.
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remand to the district court for correction of the judgment as to
García-León's terms of supervised release. Affirmed and remanded.
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