United States v. Rosa-Carino

United States Court of Appeals
For the First Circuit

Nos. 08-1220, 08-1221

UNITED STATES OF AMERICA,

Appellee,

v.

ELIEZER ROSA-CARINO,

Defendant, Appellant,

No. 08-1222

UNITED STATES OF AMERICA,

Appellee,

v.

SAMUEL DIAZ-DUMENIGO

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Pérez-Giménez, U.S. District Judge]

Before

Lynch, Chief Judge,
Boudin and Lipez, Circuit Judges.

Jorge L. Gerena-Mendez for appellant Eliezer Rosa-Carino.
Laura Maldonado Rodríguez for appellant Samuel Diaz-Dumenigo.
 Timothy R. Henwood, Assistant U.S. Attorney, with whom Rosa
Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa,
Chief, Appellate Division, and Luke Cass, Assistant U.S. Attorney,
were on brief, for appellee.

August 12, 2010
 LYNCH, Chief Judge. The defendants, Eliezer Rosa-Carino

and Samuel Diaz-Dumenigo, were convicted on four counts of

participating in a large, international conspiracy to import by sea

more than 5 kilograms of cocaine from nations in the Carribean, 21

U.S.C. §§ 841(a)(1), 846, 952(a), 963. The conspiracy imported for

distribution 415 kilograms of cocaine with a street value of over

$6 million in 2005. The district court sentenced Rosa to 235

months in prison and Diaz to 120 months in prison and each

defendant to five years' supervised release and a $400 special

assessment.

Diaz argues that there was insufficient evidence to

convict him and that the district court erred by allowing expert

testimony from a law enforcement officer on drug prices and how

drug trafficking works. Rosa appeals from his sentence, arguing

that the court erred by denying his request for an offense-level

reduction for playing a minor role in the conspiracy, that his

sentence was unreasonably excessive, and that the court erred when

it attributed 300 kilograms of cocaine to him when calculating his

guidelines range.

We affirm.

I.

Because Diaz challenges the sufficiency of the evidence

against him and Rosa challenges the court's sentencing after the

jury's verdict, we recite the facts in the light most favorable to

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the verdict. See United States v. DeCologero, 530 F.3d 36, 47 (1st

Cir. 2008).

Diaz and Rosa were two of eighteen defendants charged

with involvement in drug smuggling between August and November 2005

in Puerto Rico, the Virgin Islands (both United States and

British), the Netherlands Antilles, Colombia, and the Dominican

Republic. The conspiracy came to the attention of federal

authorities during an international investigation into the

Carribean drug trade. The investigation, code-named "Operation

Watusi," led federal agents to obtain court orders under Title III

to wiretap two phone numbers, both of which belonged to Toribio

Jiménez-Guerrero, who organized efforts to import drugs into Puerto

Rico. Over forty-nine days, the government intercepted more than

700 calls involving about forty individuals. Jiménez became one of

the lead witnesses for the government.

The conspiracy made three drug shipments between August

and November 2005. On August 19, 2005, officers intercepted a boat

carrying 88 kilograms of cocaine; it was supposed to land in

Naguabo, Puerto Rico. On November 4, 2005, the conspiracy

successfully imported 27 kilograms of cocaine to Ceiba, Puerto

Rico. Some 300 kilograms of cocaine were shipped to Luquillo,

Puerto Rico, and seized on November 17-18, 2005; the original date

for the delivery had been November 12, but the shipment had been

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delayed. Much of the evidence against Diaz and Rosa focused on

their work for the Luquillo delivery.

The conspirators followed this basic plan for the

Luquillo delivery. A boat carrying the drugs sailed from St.

Maarten to St. Thomas1 and then to a private beach in Luquillo,

Puerto Rico. Several people were brought to meet the shipment at

the Luquillo beach, unload the drugs onto a dinghy, bring the

dinghy up a nearby river, and load the drugs onto a van. Jiménez

and another person arranged to drive the van with the drugs to the

San Juan metropolitan area.

Rosa provided access to the private beach. He also

discussed delivery plans with Jiménez and tried to help Jiménez

find a boat when the boat carrying the drugs to St. Thomas had

trouble. Diaz drove the group that met the shipment at the

Luquillo beach. Jiménez and his brother had asked Diaz, in person

on November 10, 2005, to help them with a "movida"--slang for a

movement of drugs--and Diaz had agreed.

On November 12, 2005, Diaz drove several conspirators in

a white van to a street corner in Luquillo. He dropped them off,

drove to a motel, and then waited to retrieve the men. However,

the boat carrying the cocaine had trouble reaching St. Thomas, so

the delivery was canceled. The wiretap captured phone calls

1
The boat made an emergency stop in Tortola on the way to
St. Thomas.

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between Jiménez and Diaz in which they discussed the failed attempt

and how Diaz should collect the others he had dropped off. It also

captured Jiménez's call to Rosa the next day reporting the failure

of the drug shipment to arrive.

On the night and early morning of November 16-17, 2005,

the conspiracy again tried to deliver the drugs to the Luquillo

beach. Diaz once more drove several others in a van. En route the

group learned that federal agents were following them, and Diaz

tried to stop the van. Prodded by the others, Diaz continued to

Luquillo, dropped off his passengers, and waited for them at a

motel.

The group went to the beach and waited for the boat. The

boat approached the beach between 4:00 and 4:30 a.m. on November

17. But it had trouble reaching shore and soon capsized. The

beach group rushed to collect bales of cocaine, which had scattered

in the water, and load them onto the dinghy. Because the wiretap

had tipped off law enforcement about the shipment, federal officers

were monitoring the area and spotted the boat. When officers

reached the beach, the conspirators ran, abandoning the drugs.

Diaz left the motel without retrieving his passengers.

One passenger, José Jiménez-Guerrero (José), escaped from the

police and called Diaz to pick him up. Diaz initially refused but

agreed to call another conspirator and report that José was safe.

José obtained a ride to a bus station, to which Diaz drove with

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Jiménez to pick up José. Diaz gave José money to pay his driver.

When José climbed in Diaz's car, Diaz noted that someone else had

been arrested and commented, "I thought they had caught you."

José, during the drive from the bus station and in front of Diaz,

reported to Jiménez what happened on the beach.

On November 18, Jiménez learned from the news that agents

had found only twelve bales of cocaine. Knowing the shipment

contained fourteen, Jiménez called several people--including Rosa--

to find out where the missing bales went. Officers listened to

these calls on the wiretap and returned to the beach, on November

19, to look for the missing two bales. There they saw Rosa. After

searching the beach, officers found another bale of cocaine.

Altogether, officers recovered 300 kilograms from this shipment.

Rosa and Diaz were later arrested.

A jury convicted Rosa and Diaz on four drug counts on

September 14, 2007.2 The district sentenced both defendants on

January 9, 2008. The court denied Rosa's request for an offense-

level reduction for playing a minor role in the conspiracy. The

2
Those counts charged conspiracy to import narcotics into
the customs territory of the United States, 21 U.S.C. §§ 952, 963;
conspiracy to possess with the intent to distribute narcotics, 21
U.S.C. §§ 841, 846; importation of and aiding and abetting
importation of narcotics into the customs territory of the United
States, 18 U.S.C. § 2, 21 U.S.C. § 952; and possession with the
intent to distribute and aiding and abetting possession with intent
to distribute narcotics, 18 U.S.C. § 2, 21 U.S.C. § 841. The
government dismissed a criminal forfeiture count, 21 U.S.C. §§ 853,
881.

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court also rejected Rosa's argument that he should be held

responsible for 2 kilograms, the amount Jiménez promised to pay

him, rather than 300 kilograms, the amount actually shipped to

Luquillo.

II.

A. Samuel Diaz-Dumenigo's Claims

Diaz challenges the sufficiency of the evidence for his

conviction and argues that the district court erred by permitting

a law enforcement officer, Agent Eddie Vidal-Gil, to testify as an

expert.

1. Sufficiency of the Evidence

Diaz argues the evidence was insufficient because it did

not show he had the requisite knowledge or intent for any of the

drug charges. Diaz has conceded that he was responsible for

driving the conspirators to and from the drug pickup site at

Luquillo, Puerto Rico. But he argues that he believed he was

transporting people to a paint job, that he did not know any drugs

were involved, and that others hid that fact from him. His defense

was ignorance and, so, innocence. To this he adds that he was

merely present at the drug scene; that, he says, is not enough to

uphold his convictions.

We review sufficiency-of-the-evidence claims de novo,

taking the evidence and drawing all reasonable inferences in the

light most favorable to the prosecution. United States v. Rosado-

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Pérez, 605 F.3d 48, 52 (1st Cir. 2010). The evidence supports the

jury's assessment that Diaz had the requisite knowledge and intent.

Diaz testified in his own defense. His implausible

version of events was that he twice drove several conspirators to

Luquillo from San Juan (some distance), in the middle of the night,

for no money other than expenses. He did not question why his

passengers failed to do a paint job on the first night or why they

had him wait at a motel, for hours, rather than at the purported

paint-job site. Nor could he remember most details of the two

drives, including who he drove, where he went, where he stopped

along the way, at what motel he stayed, and whether he picked

anyone up in Luquillo after the November 17-18 raid.

Diaz's statements and actions, as established by other

testimony and the wiretap recordings, were more consistent with his

knowing participation in a drug delivery. On November 10, when

Jiménez invited Diaz to drive the van, Jiménez told Diaz that

Jiménez was planning a "movida." Jiménez testified that Diaz

understood this term referred to a drug movement.

Diaz's phone conversations with Jiménez, captured on the

wiretap, also supported Diaz knew he was involved in a drug

movement. For example, after the November 12 delivery was

canceled, Diaz reported to Jiménez "no, they didn't move." In

these conversations Diaz used vague code words, supporting the

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conclusion he was trying to conceal his participation in illegal

drug activity. Diaz, tellingly, never mentioned paint.

José's testimony supported that Diaz knew that federal

agents had tracked and intercepted an illegal drug shipment and

that the passengers he had brought to Luquillo had later fled

arrest. José testified that Diaz knew agents followed his van;

that José called Diaz for help after the raid; that Diaz picked up

José on November 18; and that Diaz, José, and Jiménez discussed the

raid and its aftermath.

Diaz argues that no one explicitly told him the operation

involved drugs; he points out that Jiménez admitted never saying so

expressly when they met in person and that neither Diaz nor Jiménez

mentioned drugs in their wiretapped phone conversations. But

Jiménez testified that while he never spoke explicitly about drugs

to Diaz, Diaz "should know" and "must know" that their

conversations were about drugs. It is hardly surprising that drug

conspirators never explicitly spelled out what they were doing in

conversation. A reasonable jury could have concluded that Diaz

knew and intended to participate in a drug delivery.

2. Officer Vidal-Gil's Testimony

Diaz argues the district court erred when it denied his

motion to preclude Police Officer Eddie Vidal-Gil from testifying

as an expert on the price of drugs and the nature of drug

organizations. We review this preserved objection for abuse of

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discretion. United States v. Reynoso, 336 F.3d 46, 49 (1st Cir.

2003).

As Diaz concedes, government officers may, depending on

the facts, be qualified as experts on how drug organizations work

and similar data. E.g., United States v. García-Morales, 382 F.3d

12, 18-19 (1st Cir. 2004). But he argues the court should not have

admitted this expert testimony for two reasons.

First, Diaz claims that Vidal's expert testimony about

the nature of the conspiracy and, particularly, the street price of

drugs was irrelevant and did not assist the jury. See Fed. R.

Evid. 702 (permitting expert testimony that "will assist the trier

of fact to understand the evidence or determine a fact at issue");

García-Morales, 382 F.3d at 18 ("[E]xpert testimony . . . must be

relevant to the task at hand and helpful to the jury in its

deliberations." (quoting United States v. Lopez-Lopez, 282 F.3d 1,

14 (1st Cir. 2002) (internal quotation marks omitted)). Second, he

argues that testimony about the nature of drug organizations was

cumulative because government cooperators had already described

this organization in detail and so allowance of "expert" testimony,

to boot, was unfairly prejudicial.

Both aspects of Vidal's testimony were relevant and

helpful to the jury. The price of drugs helped the jury understand

the vast amounts of money the conspirators could hope to make and

the sheer volume of drugs involved. For example, Vidal testified

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that a kilogram of cocaine was worth $16,000 on the street in

Puerto Rico in 2005. The 300-kilogram delivery was therefore worth

$4.8 million. The conspiracy's three attempted deliveries--of 88,

27, and 300 kilograms of cocaine--had a street value of $6.64

million. Drug smugglers handling such valuable drugs are unlikely

to involve unknowledgeable outsiders.

Vidal's testimony was not cumulative; none of the other

witnesses explained how drug conspiracies work generally and, in

that context, how the government understood this particular

conspiracy operated. Even if Vidal's testimony was cumulative,

which it was not, Rule 403 gave the trial court wide discretion to

determine whether testimony was unfairly prejudicial or needlessly

cumulative. See Fed. R. Evid. 403; see also United States v.

Jimenez, 507 F.3d 13, 18 (1st Cir. 2007). It did not abuse that

discretion here.

B. Eliezer Rosa-Carino's Sentencing Claims

Rosa argues that the district court erred by not granting

him a two-level decrease in his offense level for playing a minor

role in the conspiracy, by imposing an unreasonably high sentence,

and by holding him responsible for an excessive amount of cocaine.

We disagree.

1. Minor-Participant Adjustment

The district court's decision whether to grant a downward

adjustment for a minor role is usually a fact-based decision that

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we review for clear error. United States v. Sanchez, 354 F.3d 70,

74 (1st Cir. 2004). Defendants seeking this adjustment have the

burden to prove they are "(i) less culpable than most other

participants in the offense of conviction, and (ii) less culpable

than the average miscreant involved in offenses of the same genre."

Id. Rosa's presentence report recommended that he receive the

adjustment.

The district court did not clearly err by concluding that

Rosa was not less culpable than the other defendants or less

culpable than most other drug conspirators. The wiretap recordings

and trial testimony supported the district court's assessment that

Rosa was not at all on the periphery of this conspiracy.

Rosa did not simply provide private beach access as a

drug landing point, as he suggests. Jiménez repeatedly called Rosa

to discuss the Luquillo delivery plans. Rosa expected 2 kilograms

as payment and demanded more if the shipment was larger; he also

asked for another kilogram to sell himself, which was worth $16,000

on the street. When the boat bringing the drugs to Luquillo

initially had trouble in November, Jiménez turned to Rosa to help

find another boat. The fact that Rosa did not procure the boat on

which the drugs were ultimately shipped is beside the point; the

district court did not clearly err by considering his efforts to

find a boat for Jiménez as evidence of Rosa's role in the

conspiracy. And after agents seized the 300-kilogram delivery,

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Jiménez asked Rosa to explain why two bales were missing; Rosa

later searched the beach for those bales.

The district court could easily conclude that Rosa was at

least as involved as his co-defendants who worked with Jiménez and

that his participation was similar to that of other drug

conspirators.

2. Reasonableness of Rosa's Sentence

Absent an error in the district court's guidelines

calculation or in the adequacy of its reasoning, we review a

sentence's substantive reasonableness for abuse of discretion in

light of all circumstances. United States v. Gibbons, 553 F.3d 40,

47 (1st Cir. 2009).

Rosa argues the district court did not properly consider

mitigating sentencing factors recited in 18 U.S.C. § 3553(a).

Although the court sentenced him to the bottom of his guidelines

range, 235 months, he urges that the court should have sentenced

him to the statutory mandatory minimum, 120 months.

The record flatly contradicts Rosa's argument that the

court mechanically applied the guidelines without considering all

the circumstances of his case. The court heard and articulated a

number of facts favoring a lenient sentence but found they had to

be balanced against the great harms done. Before sentencing Rosa,

the court said it had considered the § 3553(a) factors, recited

several mitigating facts, and sentenced Rosa to the bottom of his

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guidelines range in light of those mitigating facts. The district

court did not abuse its discretion by concluding that a 235-month

sentence fairly balanced these mitigating factors and the

seriousness of Rosa's offense.

3. Amount of Cocaine

The district court held Rosa responsible for 300

kilograms of cocaine, which was the amount recovered by authorities

from the attempted delivery at Luquillo. Rosa argues the court

should have used the amount Rosa was promised in payment, 2

kilograms.

We review a sentencing court's calculation of drug

quantities for clear error. United States v. Platte, 577 F.3d 387,

391 (1st Cir. 2009). To the extent Rosa argues that he could only

be responsible for the amount he personally would receive, his

claim misunderstands our caselaw. He is also responsible for the

amount of drugs he could have reasonably foreseen the conspiracy

would involve. United States v. Santos, 357 F.3d 136, 140 (1st

Cir. 2004).

Wiretap recordings confirmed that Rosa had enough

information that the Luquillo delivery would involve 300 kilograms;

on one tape he was explicitly told it would be over 200 kilograms

of cocaine. Indeed, Rosa insisted that the 2 kilograms he was

promised might not be enough if the overall delivery was much

larger than 200 kilograms. Rosa worked closely with Jiménez to

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arrange the 300-kilogram shipment, and they had a number of phone

calls about it. After the seizure but during the conspiracy Rosa

confirmed that he knew the delivery included 14 bales totaling

about 300 kilograms.

III.

We affirm the judgment of the district court.

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