Filed: Feb. 24, 2012
Latest Update: Feb. 22, 2020
Summary: (Ramirez).Molina, the major source of the cocaine.1, Garcia objects that there was no testimony as to Lopezs, whereabouts when the officers executed the search warrant and that, evidence of the inhabitants inability to move could therefore not, link Lopez to the cellphone in the living room.
United States Court of Appeals
For the First Circuit
No. 10-1913
UNITED STATES OF AMERICA,
Appellee,
v.
CIRO LOPEZ GARCIA
Defendant, Appellant.
No. 10-1914
UNITED STATES OF AMERICA,
Appellee,
v.
MARCO GARCIA,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul Barbadoro, U.S. District Judge]
Before
Selya, Circuit Judge,
Souter, Associate Justice,*
and Lipez, Circuit Judge.
*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
Roberto J. Yzaguirre, with whom Yzaguirre & Chapa, was on
brief, for appellant Ciro Lopez Garcia.
Joseph M. Wrobleski, Jr. for appellant Marco Garcia.
Seth R. Aframe, Assistant United States Attorney, with whom
John P. Kacavas, United States Attorney, was on brief, for
appellee.
February 24, 2012
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SOUTER, Associate Justice. The defendant-appellants,
Ciro Lopez Garcia (“Lopez”) and Marco Garcia (“Garcia”) were
convicted of conspiracy to distribute cocaine, and to possess it
with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A)(ii), and 846. Lopez claims that the evidence was
insufficient to prove him a conspirator, and in the alternative he
challenges the sentencing judge’s finding of the amount of the drug
attributable to him. Garcia raises plain error in admitting
evidence of law enforcement officers’ precautions in executing a
search warrant, and in the trial court’s failure to declare a
mistrial sua sponte in response to prosecution testimony referring
to a threat of violence by one of Garcia’s co-conspirators and to
the Mexican origin of the drugs. We see no reversible error and
affirm.
Lopez’s cousin, Juan Garcia Hernandez (“Hernandez”), was
a New Hampshire cocaine dealer, who in 2007 formed a partnership
with another dealer in the state, Renaury Ramirez Garcia
(“Ramirez”). See United States v. Garcia-Hernandez, 659 F.3d 108
(1st Cir. 2011). In the Fall of that year, the two sought a new
source of drugs in Texas, where they met with defendant Lopez, who
introduced them to a man known as “Molina.” Molina later sent them
several large shipments of cocaine, which Hernandez and Ramirez in
turn sold to other dealers in New Hampshire, New York, and
Massachusetts. Much of the drugs and the proceeds from the sales
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were stored in Hernandez’s girlfriend’s house on Brown Avenue, in
Manchester, New Hampshire.
The partners were imprudent, however, and after too many
sales of cocaine on credit they eventually owed Molina several
hundred thousand dollars, a debt that led Ramirez to seek another
source of cocaine that he could sell to pay off the debt. He found
one right in New Hampshire and made a deal to buy ten kilograms of
cocaine for $230,000. The source, however, was a government
informant, and when Ramirez traveled to Manchester to get the drugs
in March 2009, an undercover agent arrested him.
As a consequence, Ramirez’s girlfriend, Nicole Kalantzis,
decided to cooperate with the government in order to obtain
leniency for her boyfriend. In her new capacity, she met with
Hernandez, who told her that a large shipment of cocaine would soon
be delivered to New Hampshire, and that they had to sell it quickly
because the “big guys” were coming to collect the money owed.
On April 8, 2009, Lopez and Garcia arrived at the Brown
Avenue house, followed four days later by a truck carrying the
cocaine. Soon after, the police videotaped Hernandez transferring
cocaine into the trunk of a Cadillac parked behind the house, with
Lopez standing 15 feet away, talking on a cellphone.
Later that day, law enforcement officers including a SWAT
team executed a warrant to search the house and arrested its
inhabitants. The agents found a bag of Lopez’s personal items,
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including a cellphone with information for contacting “Molina.”
They also found, in the living room where Lopez had slept for
several nights, another cellphone, to which “Molina” placed a call
the next day. Ledgers seized had details of drug shipments and
several references to Garcia and Lopez. Finally, after drug-
sniffing dogs confirmed the earlier surveillance evidence, the
agents found a large amount of cocaine in the Cadillac parked
behind the house.
I.
Although Lopez claims that the government’s attempt to
prove his membership in the conspiracy was inadequate, the evidence
viewed in the light most favorable to the verdict, see United
States v. Troy, 583 F.3d 20, 24 (1st Cir. 2009), adequately shows
his agreement with others to distribute cocaine and posses it with
that intent, see United States v. Famania-Roche,
537 F.3d 71, 78
(1st Cir. 2008) (government must show defendant knew of a
conspiracy and participated in it with intent to agree with his co-
conspirators and to commit the substantive drug offense).
Testimony from a single witness can be enough to support a
conviction, United States v. Meises,
645 F.3d 5, 12 (1st Cir.
2011), and here, two co-conspirators directly implicated Lopez in
the scheme. Ramirez testified that Lopez introduced him and
Hernandez to Molina, who became the New Hampshire dealers’
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principal cocaine supplier, while the testimony of Hernandez’s
girlfriend, Janeth Sarmiento, supported the inference that Lopez
was one of the “big guys” who traveled to New Hampshire to collect
money in arrears from the sale of cocaine. Telephone records
revealed that Lopez frequently contacted Hernandez around the time
of the major shipment of cocaine in March 2009, and Lopez was
mentioned by name in the drug ledgers seized in the search of the
house. Evidence showed that Lopez had communicated with Molina on
several cellular telephones, through one of which Molina tried to
reach Lopez the day after the raid. And of course Lopez was
videotaped within 15 feet of the cocaine that Hernandez was moving
to the trunk of the Cadillac. Summed up, this was enough evidence
to allow a reasonable jury to find without serious question that
Lopez was a conspirator.
The evidence just canvassed also blows cold on Lopez’s
challenges to the district court’s attribution to him of over 150
kilograms of cocaine, which we review for clear error. United
States v. Cinton-Echautegui, 604 F.3d 1, 6 (1st Cir. 2010).
Although a conspirator is responsible only for foreseeable conduct
by members of the conspiracy (including himself) acting within the
scope of the agreement (here, to distribute drugs), United States
v. Laboy,
351 F.3d 578, 583 (1st Cir. 2003), the district court’s
conclusion by a preponderance of the evidence, see
id., that Lopez
had conspired to possess and distribute over 150 kilograms of
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cocaine rested on the evidence that Lopez was the conduit to
Molina, the major source of the cocaine. The court pointed to the
many telephone contacts between Lopez and the other distributors,
and cited evidence that large loads of cocaine were shipped north
to New Hampshire using the same driver in similar trucks, and thus
indicating Molina as their common source. It is reasonable to
infer from all this that the cocaine shipments from Molina to
Hernandez and Ramirez, which amounted to over 150 kilograms, were
foreseeable by Lopez and fairly attributable to him.
II.
Garcia’s primary claim is one of error in letting law
enforcement agents testify about the exciting way they executed the
warrant at the Brown Avenue house. An FBI agent told how they used
a SWAT team in anticipation of the firepower drug dealers usually
command when transporting or storing large quantities of drugs, and
a Manchester SWAT team member described the standard tactics used
to subdue high-volume drug dealers like the defendants; here, the
team used a “flash-bang” device, a non-lethal grenade that explodes
with a stunning combination of light and noise, to freeze the
inhabitants of the house at the moment the police enter. The
officer went into the reasons for such aggressive tactics, and
spoke of drug dealers as customarily armed, dangerous, and ready to
fight.
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Although Garcia now contends that this evidence was
irrelevant and prejudicial in depicting the defendants as highly
dangerous, he did not object to the testimony at trial, our review
consequently being only for plain error. United States v. Perez-
Ruiz, 353 F.3d 1, 10 (1st Cir. 2003). That is, he must show an
error that was clear and obvious, affecting his substantial rights
and seriously impairing the integrity of the judicial proceedings.
United States v. Rios-Hernandez,
645 F.3d 456, 462 (1st Cir. 2011).
Garcia cannot shoulder the burden.
To begin with, as the Government points out, the
testimony about the flash-bang device and the immediate
apprehension of the house’s inhabitants helped to show that the
conspirators were startled by the SWAT team’s use of force, to the
point of losing any opportunity to move or conceal anything within
the house before the police took control. This evidence helped to
establish that Lopez was probably the owner of a cellphone found in
the living room where he had been sleeping and independently linked
to calls in aid of the conspiracy.1
1
Garcia objects that there was no testimony as to Lopez’s
whereabouts when the officers executed the search warrant and that
evidence of the inhabitants’ inability to move could therefore not
link Lopez to the cellphone in the living room. But evidence that
the inhabitants could not conceal items when the police arrived
helped establish that the cellphone had not been moved and was,
prior to the search, in the living room, where Lopez had been
sleeping for several nights.
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We do think that Garcia is right in arguing that the
further testimony describing the Government’s motivations for using
force (the general propensity of drug dealers to be armed and
paranoid) is less obviously relevant, and more prejudicially risky,
than the account of the dramatic entry of the house. But it was
not plain error to allow it. Descriptions of the background for
police action can be relevant in preventing jury puzzlement at
otherwise unexplained behavior, and law enforcement agents
accordingly have some leeway to describe the course of their
investigations in order to “set the stage for the testimony to
come.” United States v. Flores-De-Jesus, 569 F.3d 8, 19 (1st Cir.
2009). Here, the justification for the testimony was its hedge
against any suspicion on the part of jurors that the police were
being gratuitously militant and thus too zealous to be trusted, and
we cannot identify any pivotal moment when this background evidence
reached the stage when its threat of prejudice so clearly
outweighed relevance that the judge was required to take action sua
sponte, as defense counsel sat silent. See Fed. R. Evid. 403.
Nor has Garcia demonstrated that the evidence was so
damaging to his substantial rights that it probably affected the
outcome of his trial. See United States v. Gilman, 478 F.3d 440,
447 (2007) (on plain error review, a defendant “must show that the
error was prejudicial in the sense that ‘[i]t must have affected
the outcome of the district court proceedings’”) (quoting United
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States v. Olano, 507 U.S. 725, 734 (1993)). Law enforcement
officers testified that, in fact, these defendants turned out to be
unarmed and cooperative, and the jury perfectly well would have
understood that, notwithstanding the general possibility of
violence that explained the force used in entering the house, the
defendants neither employed actual violence in return nor were
outfitted to do so.
Garcia points to United States v. Cunningham, 462 F.3d
708 (7th Cir. 2006), in which the Seventh Circuit ordered a new
trial after a government agent testified to the remarkable number
of government officers and agencies that signed off on a Title III
wiretap order before issuance. The court held the testimony
irrelevant and prejudicial in showing that the officials who
approved the application for the order all believed that the
defendants were in fact committing drug-related crimes, with the
effect of improperly bolstering the credibility of the
prosecution’s evidence.
Id. at 713. But this case is far from
Cunningham. Not only did the defendants there object to the
testimony at trial, entitling them to review for abuse of
discretion,
id. at 712, not the more onerous plain error standard,
but the Cunningham testimony was irrelevant to anything but the
weight to be given to the prosecution testimony, which the
government was forbidden to bolster by resort to third-party
belief. Here, the testimony about executing the warrant helped
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establish Lopez’s connection to a cellphone, which in turn
connected him to Molina, the source of the cocaine.
As a related matter, Garcia argues that the district
court should have declared a mistrial after Hernandez’s girlfriend
testified that she had allowed Hernandez to use her house on Brown
Avenue because she was afraid that he might harm her parents. She
said that Hernandez had told her that he knew her “parents were in
Mexico and that he knew where they were.” Garcia did object to
this, and the district court sustained the objection and allowed no
further testimony on the point. Garcia did not, however, request
a mistrial, and his claim that the district court should have
declared one sua sponte is consequently reviewed like his other
issues, for plain error. United States v. Smith, 101 F.3d 202, 212
(1st Cir. 1996). Again, he does not make the grade.
Hernandez’s girlfriend did not testify that he threatened
her parents directly, and her testimony was cut off before she
could expand on the suggestion of even an indirect threat. The
court could reasonably have assumed that it was sufficiently
satisfactory to disallow any further testimony on the subject,
there being no evidence that Garcia condoned or even had knowledge
of any threat. There was thus no reason for the judge to have
perceived any substantial prejudice to Garcia warranting a
mistrial.
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Finally, Garcia raises a third claim of plain error in
the Government’s reference at closing to the “Mexican” connection
of the conspiracy, and argues that the cumulative effect of
mentioning this together with the previous suggestions of drug
violence was to inflame and prejudice the jury against the
defendants to the point of reversible error, even absent objection.
But this is simply far-fetched. The mention of Mexico was not
error per se, for the prosecutor was entitled to point out that the
drugs used in the alleged conspiracy were, in fact, from Mexico,
given the evidentiary basis for saying so. See United States v.
Ovalle-Marquez, 36 F.3d 212, 220 (1st Cir. 1994) (a prosecutor may
mention the foreign origins of a conspiracy when there is evidence
to support the statement). And it is difficult to see how
reference to the Mexican association was likely to add anything to
what generally informed jurors would know in any event, that high
level drug trade is typically violent and that a lot of drugs come
north from Mexico. Inflammation is even the less likely here,
where the jurors heard evidence that these defendants carried no
arms and engaged in no violence.
Affirmed.
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