United States v. Vazquez-Castro

United States Court of Appeals
For the First Circuit
No. 09-2109
UNITED STATES OF AMERICA,
Appellee,
v.
JOSÉ A. VÁZQUEZ-CASTRO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen C. Cerezo, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Siler,* Circuit Judges.
Alvin E. Entin, with whom Richard Della Fera was on brief for
appellant.
Vernon B. Miles, with whom Rosa Emilia Rodriguez-Vélez, United
States Attorney, Nelson Pérez-Sosa, Assistant United States
Attorney, and Luke Cass, Assistant United States Attorney, were on
brief for appellee.
April 7, 2011
*
Of the Sixth Circuit, sitting by designation.
SILER, Circuit Judge. Jose Vazquez-Castro was convicted by a
jury of three counts: (1) conspiracy to possess with intent to
distribute cocaine; (2) possessing cocaine with intent to
distribute; and (3) possessing a firearm in furtherance of drug
trafficking. He appeals the sufficiency of the evidence for the
weapon charge in Count Three, and argues the district court erred
by instructing the jury on the Pinkerton theory of liability. For
the following reasons, we AFFIRM.
I.
A. The Undercover Sting Operation
DEA Agents Miguel Melendez-Cruz, Roberto Cruz-Perez, and
Johnny Melendez organized an undercover operation to buy cocaine.
The targeted individuals included Carlos Rodriguez and Israel Ruiz.
Rodriguez had solicited Marcos Nunez-Retamar to be a "runner," or
an intermediary who earns commissions by matching suppliers of
cocaine with buyers. Nunez-Retamar became a confidential
informant.
Agent Cruz-Perez instructed Nunez-Retamar to call Rodriguez
and tell him that Cruz-Perez was his brother and he wanted to buy
ten kilograms of cocaine. Cruz-Perez, Melendez, and Nunez-Retamar
then met with Rodriguez and Ruiz. Nunez-Retamar introduced Cruz-
Perez as his brother, and told Rodriguez and Ruiz that he wanted to
buy ten kilograms of cocaine. After conversing about the specifics
of the deal, they came to an agreement to purchase the cocaine.
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The next day, Rodriguez called to report that he had spoken
with the supplier and "they wanted to do the deal" in front of a
restaurant at a shopping mall that evening. Rodriguez and Ruiz
arrived at the designated time, but stated that their supplier did
not like the area because they saw suspicious vehicles and
uniformed patrols.
Cruz-Perez made several recorded calls to Rodriguez and Ruiz
the following day. Ruiz said that no one wants to "release the
tickets," which meant that the suppliers did not want to provide
the drugs without first seeing the money. Cruz-Perez asked
Rodriguez if he had "iron," meaning firearms. Rodriguez replied,
"I carry steel on my waist."
Cruz-Perez, Melendez, Nunez-Retamar, and Rodriguez agreed to
meet at a restaurant for the exchange at 5:30 p.m. on June 23,
2006. Cruz-Perez placed agents around the premises to make arrests
once the drugs arrived. They planned to call these agents after
seeing the drugs and ask them to "bring the money in," which was
the code phrase ordering the arrests of the dealers.
Cruz-Perez, Melendez, and Nunez-Retamar arrived first, and
waited inside the restaurant. Rodriguez called and said he could
not attend the meeting because his car broke down. At 6:30 p.m.,
a Mitsubishi automobile parked in front of the restaurant, with
Ruiz in the back seat and Angel Cruz-Perez ("Angel") driving.
Vazquez-Castro was also in the vehicle, sitting in the front
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passenger seat. Ruiz exited the vehicle, and Angel and Vazquez-
Castro left the area. Ruiz entered the restaurant, told Cruz-Perez
that the "kilos were there," and asked about the money. The agent
replied that "not a penny was going to be shown until" he "saw the
kilos." Ruiz responded that he needed to speak "with the owners of
the material."
Ruiz left the restaurant, made a telephone call outside, and
returned to again inquire about the money. The agents repeated
that there would be no money until the drugs were shown, and Ruiz
left to make another telephone call. The Mitsubishi returned with
Angel driving and Vazquez-Castro in the front passenger seat. Ruiz
got into the back seat. Cruz-Perez approached the Mitsubishi,
opened the rear passenger side door, and asked whether they were
"going to negotiate?" Angel said "yes," and instructed Vazquez-
Castro to "go get that."
Vazquez-Castro exited the vehicle, walked to an Isuzu "about
six vehicles away," and got into the rear passenger side. A few
minutes later, Vazquez-Castro exited the vehicle, and returned with
his hand tucked near the left side of his body and apparently
carrying something inside his sweater. Vazquez-Castro got back
into the Mitsubishi. Ruiz opened the door and said, it is "here."
Cruz-Perez instructed Nunez-Retamar to check the drugs. Nunez-
Retamar looked in the passenger's side "for several seconds," then
told Cruz-Perez to "[b]ring the money, there is a kilo."
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Angel and Vazquez-Castro exited the vehicle and walked into
the restaurant, where they were arrested. Ruiz was arrested
outside, as were the two individuals in the Isuzu. When Melendez
arrested the driver of the Isuzu, the driver said he was armed and
"[t]he weapon is under the carpet in the driver's seat, on the
floor." The agent then found a loaded .45 caliber pistol folded in
the floor mat on the driver's side of the Isuzu. The agents also
retrieved a blue bag containing five kilograms of cocaine from the
back seat of the Isuzu and a kilogram of cocaine from the
Mitsubishi's glove box.
B. The Trial
Vazquez-Castro and his co-defendants were indicted on three
counts. Count One charged Vazquez-Castro and others with knowingly
and unlawfully conspiring to possess with intent to distribute five
kilograms or more of cocaine in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A), and 846. Count Two charged him with
possessing with intent to distribute five kilograms or more of
cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), and
18 U.S.C. § 2. Count Three charged, "[t]he defendants herein,
while aiding and abetting each other, did possess, use and carry .
. . a .45 caliber Ruger pistol . . . in furtherance of a drug
trafficking crime" in violation of 18 U.S.C. §§ 924(c)(1)(A) and
(c)(1)(A)(i).
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At trial, Vazquez-Castro moved under Rule 29(a) for a judgment
of acquittal on Count Three. The district court denied the motion.
It held that, even though the Government had expressly charged
Vazquez-Castro under an aiding and abetting theory in Count Three,
the jury may be instructed to consider the liability theory from
Pinkerton v. United States, 328 U.S. 640 (1946), as an alternative
theory for conviction under 18 U.S.C. § 924(c)(1). The district
court found that "since both parties argued the foreseeability
factor [of the Pinkerton theory] during the Rule 29(a) discussion,
a factor which is not an element of the standard of proof of the
aiding and abetting theory, . . . the alternative Pinkerton theory
of liability is justified." The court later instructed the jury on
both theories of liability.
Vazquez-Castro was convicted and sentenced to 120 months for
Counts One and Two to be served concurrently, and 60 months for
Count Three to be served consecutively, for a total of 180 months
imprisonment.
II.
On appeal, Vazquez-Castro makes three related arguments. He
argues there was insufficient evidence to convict him of the weapon
charge, and maintains that the district court therefore erred in
denying his Rule 29 motion before the case was submitted to the
jury. He also contends that, because the government expressly
included an aiding and abetting theory of liability in the
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indictment, the court erred by instructing the jury on the
Pinkerton theory of liability.1
We review the denial of a Rule 29 motion for acquittal de
novo. See United States v. Rosado-Perez, 605 F.3d 48, 52 (1st Cir.
2010). We review the jury instructions for plain error because
Vazquez-Castro did not object to them at trial. See Fed. R. Crim.
P. 52(b); United States v. Olano, 507 U.S. 725, 732 (1993). In
analyzing Vazquez-Castro's sufficiency claim, "we must affirm the
conviction if after de novo review of the evidence taken in the
light most favorable to the government, we conclude that a rational
factfinder could find that the government proved the essential
elements of its case beyond a reasonable doubt." United States v.
Marin, 523 F.3d 24, 27 (1st Cir. 2008).
A. The Pinkerton Instruction
An aiding and abetting theory of liability requires a higher
mens rea than a Pinkerton theory of liability. United States v.
Shea, 150 F.3d 44, 50 (1st Cir. 1998), abrogated on other grounds,
United States v. Mojica-Baez, 229 F.3d 292 (1st Cir. 2000). To
show aider and abettor liability, the government must prove that
the defendant knew to a "practical certainty" that the principal
would use a weapon during the commission of the crime. United
States v. Spinney, 65 F.3d 231, 238 (1st Cir. 1995). "[P]ractical
1
We have also reviewed the pro se supplemental brief
submitted by Vazquez-Castro. It does not raise any substantial
additional claims.
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certainty is a rubric that calls for proof verging on actual
knowledge." Id. By contrast, under the Pinkerton theory of
liability, the jury must find that the defendant was a member of a
conspiracy and the use or carrying of a firearm was "reasonably
foreseeable" in furtherance of the conspiracy. Shea, 150 F.3d at
50.
Notwithstanding this difference, "a jury may be instructed to
consider the liability theory established in Pinkerton as an
alternative ground for conviction under § 924(c)(1) in addition to
an aiding and abetting theory." United States v. Medina-Roman, 376
F.3d 1, 3 n.4 (1st Cir. 2004) (internal citation omitted). The
alternative instruction is justified because, "[a]s with the aiding
and abetting theory, vicarious co-conspirator liability under
Pinkerton is not in the nature of a separate offense." United
States v. Sanchez, 917 F.2d 607, 612 (1st Cir. 1990) (internal
quotations omitted); accord United States v. Gobbi, 471 F.3d 302,
309 (1st Cir. 2006) ("The law is crystalline that, when the
government has advanced several alternate theories of guilt and the
trial court has submitted the case to the jury on that basis, an
ensuing conviction may stand as long as the evidence suffices to
support any one of the submitted theories.").
In the same manner, the trial court may instruct the jury on
a Pinkerton theory even though the indictment does not plead
vicarious liability. Sanchez, 917 F.2d at 612. "Indeed, every
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court to consider the matter has held that the individual
substantive counts need not make reference to co-conspirator
liability in order for the jury to be so instructed." Id.
(internal quotations omitted).
When an indictment does not reference Pinkerton liability,
however, the defendant remains entitled to fair notice of the
government's charge against him. Id. at 611. The defendants in
Sanchez were charged with conspiracy and possession of cocaine for
distribution, and the district court instructed the jury on both
aiding and abetting and Pinkerton theories of liability. Id. at
611-12. Even though the indictment itself did not mention either
theory of liability, we held that the defendants were "on notice of
the essential nature of the charges against them." Id. at 612.
This is because aiding and abetting "is not a separate offense."
Id. at 611-12. Rather, "[a]iding and abetting is an alternative
charge in every count, whether explicit or implicit."2 Id. at 611
(internal citations omitted). We held the Pinkerton charge
warranted "on the same reasoning." Id. at 612. There was also no
unfair surprise because the government submitted proposed jury
instructions on both theories prior to trial. Id.
2
We noted in Sanchez that it is "better practice," however,
"to have the indictment framed in the alternative or at least to
have noted upon it a reference to" the aiding and abetting theory
of liability. Id. at 611 n.3.
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However, "a Pinkerton charge should not be given as a matter
of course." Id. at 612 n.4 (internal quotations omitted). The
Pinkerton charge causes concern "particularly where the jury is
being asked to make the converse inference; that is, to infer, on
the basis of a series of disparate criminal acts, that a conspiracy
existed." Id. In Sanchez, "there was ample evidence that [the
defendant] was a member of the alleged conspiracy to possess
cocaine for distribution." The jury instructions on aiding and
abetting and Pinkerton were proper for the separate purpose of
determining whether the defendant's co-conspirators "committed the
substantive offense of possessing cocaine for distribution." Id.
Applying this reasoning, the district court here did not
plainly err by instructing the jury on the Pinkerton theory of
liability as an alternative to the aiding and abetting theory.
Even though only the aiding and abetting theory was specifically
referenced in the indictment, each theory was implicit in the
firearm charge against him. See id. at 611-12. "Since there was
sufficient evidence to enable a jury to conclude, beyond a
reasonable doubt," that Vazquez-Castro and his co-defendants were
members of the cocaine conspiracy, "the Pinkerton charge was
proper" on the substantive weapon count. See id. at 612.
There was also no unfair surprise. As the district court
pointed out, the parties argued the Pinkerton element of
foreseeability during trial. See Gobbi, 471 F.3d at 309; cf.
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Medina-Roman, 376 F.3d at 3 n.4. Additionally, Vazquez-Castro's
own proposed jury instructions referenced the Pinkerton theory of
liability. See Sanchez, 917 F.2d at 612. Moreover, following a
charge conference in chambers and prior to instructing the jury,
Vazquez-Castro appears to have agreed on the record to the
Government's request that the court include the Pinkerton
instruction.
B. Sufficiency of the Evidence
To convict a defendant under § 924(c)(1)(A), the government
must prove that the defendant (1) committed a drug trafficking
crime; (2) knowingly possessed a firearm; and (3) possessed the
firearm in furtherance of the drug trafficking crime. United
States v. Pena, 586 F.3d 105, 112 (1st Cir. 2009). "We have
repeatedly held that under Pinkerton, the defendant does not need
to have carried the gun himself to be liable under § 924(c)."
United States v. Flecha-Maldonado, 373 F.3d 170, 179 (1st Cir.
2004). "So long as there is sufficient evidence that a
co-conspirator carried or used a firearm in furtherance of the
conspiracy and that this was reasonably foreseeable to the
defendant, the defendant can be held liable as if he himself
carried or used the firearm." Id.
It is not necessary to show that the defendant owned or
"physically possessed" the firearm, and possession may be
constructive. United States v. Rodriguez-Lozada, 558 F.3d 29, 41
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(1st Cir. 2009). "Constructive possession of a firearm may be
established by showing that the person knows (or has reason to
know) that the firearm is within easy reach, so that he can take
actual possession of it virtually at will." United States v.
Robinson, 473 F.3d 387, 399 (1st Cir. 2007). "The mere presence of
a firearm" in the area is insufficient, and there must be some
"nexus" between the firearm and the offense. Id. at 400. In
determining whether there is a nexus, we consider whether the
firearm was loaded, whether the firearm was easily accessible, the
proximity of the firearm to the drugs, and the surrounding
circumstances. Id.
"[F]irearms are often used by drug dealers to protect drug
stockpiles, to preempt encroachment into a dealer's 'territory' by
rival dealers, and for retaliation." United States v. Luciano, 329
F.3d 1, 6 (1st Cir. 2003). In Luciano, agents searched an
apartment the defendant had been inside just prior to selling
heroin. Id. at 3. In a crawl space in the ceiling, an agent found
a large bag of heroin close to another bag containing two handguns
and two loaded magazines. Id. at 3-4. The defendant argued there
was no nexus between the drug transaction and the gun possession.
Id. at 6. However, "[g]iven the close proximity of the firearms
and loaded magazines to the significant stockpile of heroin, we
[had] no difficulty concluding that there was a sufficient nexus
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between the drug trafficking crime and the firearms to sustain a
conviction under § 924." Id. at 6.
Viewing the evidence in the light most favorable to the jury's
verdict in Vazquez-Castro's case, there was sufficient evidence for
the jury to convict him of the weapon charge. First, sufficient
evidence showed Vazquez-Castro voluntarily and knowingly
participated in the drug conspiracy. See United States v.
Bristol-Martir, 570 F.3d 29, 39 (1st Cir. 2009). The DEA agents'
testimony, video recordings, and Vazquez-Castro's post-arrest
interview allowed the jury to reasonably infer that he was aware
of, and intended to participate in, the conspiracy. See United
States v. Paret-Ruiz, 567 F.3d 1, 6 (1st Cir. 2009) ("An agreement
between coconspirators may be proven by circumstantial evidence,
and it may be tacit.").
Second, sufficient evidence supports a finding that one of
Vazquez-Castro's co-conspirators constructively possessed a firearm
"in furtherance of" the drug trafficking crime. Robinson, 473 F.3d
at 399. At the time of the arrests, the driver of the Isuzu told
the agents where to find the weapon. The pistol was found loaded
with a magazine and easily accessible by reaching to the floorboard
of the driver's seat in the Isuzu. See Marin, 523 F.3d at 28.
Five kilograms of cocaine were found on the floor behind the
driver's seat, in close proximity to the gun. See Luciano, 329
F.3d at 6. Additionally, these items were seized in the broader
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context of a drug deal, and the driver and passengers arrived at
the designated location carrying both the drugs and the gun in
their vehicle. See Robinson, 473 F.3d at 400.
Sufficient evidence also supports a finding that it was
"reasonably foreseeable" to Vazquez-Castro that a co-conspirator
would possess a firearm in furtherance of the conspiracy.
Flecha-Maldonado, 373 F.3d at 179. In the days prior to the drug
deal, one of Vazquez-Castro's co-conspirators told an undercover
agent he carried "steel." Although Vazquez-Castro arrived in a
different vehicle on the day of the deal, he walked to and sat
inside the Isuzu for several minutes after Angel instructed him to
"go get that." While seated in the Isuzu, Vazquez-Castro was
within reaching distance of both the loaded weapon and a
significant amount of cocaine. When Vazquez-Castro exited the
Isuzu, he carried a kilogram of the cocaine back to the Mitsubishi.
The Government estimated the total value of the cocaine seized at
approximately $100,000. See United States v. Bianco, 922 F.2d 910,
912 (1st Cir. 1991) ("[W]e think it fairly inferable that a
codefendant's possession of a dangerous weapon is foreseeable to a
defendant with reason to believe that their collaborative criminal
venture includes an exchange of controlled substances for a large
amount of cash.").
Under these circumstances, the jury could have concluded it
was reasonably foreseeable to Vazquez-Castro that one of his
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co-conspirators would carry a firearm. See United States v. Bucci,
525 F.3d 116, 132 (1st Cir. 2008); Flecha-Maldonado, 373 F.3d at
179; Bianco, 922 F.2d at 912. The jury's finding of liability on
a Pinkerton theory is sufficient to uphold Vazquez-Castro's
conviction on the gun charge, and we therefore need not reach the
question of whether this evidence adequately supported the higher
showing required under an aiding and abetting theory of liability.
AFFIRMED.
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