United States v. Hernandez-Vega

United States Court of Appeals
For the First Circuit

No. 99-1462

UNITED STATES,

Appellee,

v.

CARLOS L. HERNANDEZ-VEGA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Salvador E. Casellas, U.S. District Judge]

Before

Selya, Circuit Judge,

Bownes, Senior Circuit Judge,

and Lipez, Circuit Judge.

Rafael F. Castro Lang for appellant.

Jacabed Rodríguez-Coss, Assistant United States Attorney,
with whom, Guillermo Gil, United States Attorney, and Jorge E.
Vega-Pacheco, Assistant United States Attorney, were on brief
for appellee.

December 29, 2000
 BOWNES, Senior Circuit Judge. Defendant-appellant

Carlos L. Hernandez-Vega, along with eight other defendants, was

tried pursuant to a three-count indictment in the District Court

for the District of Puerto Rico for drug related activities.

The indictment charged as follows: Count I, 21 U.S.C. § 848(a)

and (b), continuing criminal enterprise, and 18 U.S.C. § 2,

aiding and abetting; Count II, 21 U.S.C. § 846, conspiracy to

distribute in excess of five kilograms of heroin, in excess of

five kilograms of cocaine, in excess of five kilograms of

cocaine base and in excess of 100 kilograms of marijuana; and

Count III, 18 U.S.C. § 924(c)(1) & (2), unlawful use of firearms

during and in relation to a drug trafficking offense and aiding

and abetting.

All nine of the defendants who stood trial were found

guilty on all or some of the counts. We consolidated the

appeals. Seven of the defendants argued orally on September 14,

2000. The other two defendants' appeals were submitted on

briefs to the same panel.

The defendant in this case, Carlos Hernandez-Vega, was

found guilty on all three counts. He was sentenced to life

imprisonment on Counts I and II of the indictment1 and a term of

ten years on Count III, to be served consecutively. Defendant

1Count II was subsequently dismissed.

-3-
has raised five issues on appeal, which we will discuss in the

order followed in his brief.

I. FACTS

We state the facts in the light most favorable to the

verdict. See United States v. Duclos, 214 F.3d 27, 32 (1st Cir.

2000). This rehearsal of the evidence does not, of course,

cover the facts that are applicable only to other defendants.

Nor do we recite, at this juncture, all of the facts involving

defendant. Many of the facts pertaining to particular issues

will be set forth in our discussion of the issues. All we do

now is state those facts that will give the reader the necessary

background information to understand the different issues raised

by defendant.

Defendant and Vega-Figueroa were in charge of an

extensive criminal enterprise involving the sale and

distribution of heroin, cocaine, crack cocaine, and marijuana.

Cooperating witnesses for the government included five former

members of the enterprise who sold narcotics for the

organization. Their testimony can be summarized as follows.

Defendant and/or Vega-Figueroa delivered the drugs to

the various cooperating witnesses at the drug point, located in

-4-
a public housing project. Members of the enterprise carjacked

automobiles on a regular basis. The carjacked vehicles were

then used for drive-by shootings targeted against other drug

dealers who operated drug points in other public housing units

in competition with defendant and Vega-Figueroa. The drug

distribution point of the enterprise was guarded by armed

members of the organization. There was also testimony that

defendant and Vega-Figueroa operated a heroin drug point located

within the Hogar Crea detention and drug rehabilitation facility

in Saint Just at Trujuillo Alto, Puerto Rico. Another drug gang

ousted two members of defendant’s organization from the Hogar

Crea drug point. Defendant and Vega-Figueroa ordered that the

two men who had taken over the Hogar Crea drug point be

murdered. The men were ambushed and killed by defendant, Vega-

Figueroa, and other members of defendant’s enterprise.

The indictment charged that the continuing criminal

enterprise and conspiracy started on or about August 1, 1990,

and continued until on or about April 10, 1997.

II. ISSUES

We state the issues as phrased by defendant.2

2
The first issue raised by defendant is that he received
life sentences under both Counts I and Count II, thus violating
principles of double jeopardy. As Count II has been dismissed,
leaving only one life sentence, this point needs no discussion.

-5-
A. Whether the district court committed
reversible error in its instructions to the
jury as to the continuing criminal
enterprise charged in Count I of the
indictment.

The district court instructed the jury as follows:

In Count I of the indictment two of the
defendants are charged, Jose Vega Figueroa
and Carlos Hernandez Vega. The law makes it
a federal crime or offense for anyone to
engage in what is called a continuing
criminal enterprise involving controlled
substances.

A defendant can be found guilty of that
offense only if all of the following facts
are proved beyond a reasonable doubt:

First, that the defendants violated
Section 841(a)(1) as charged in the
indictment. This is the drug trafficking
case.

Second, that such violations were a
part of a continuing series of violations as
herein after defined.

Third, that such continuing series of
violations were undertaken by the defendants
in concert or together with at least five or
more other persons.

Fourth, that the defendant occupied
the position of an organizer, supervisor or
manager.

Fifth, that the defendant obtained
substantial income or resources in the
continuing series of violations.

A continuing series of violation means
proof of at least three violations under the
Federal controlled substances law, as
charged in Count I of the indictment, and

-6-
 also requires a finding that those
violations were connected together as a
series of related or ongoing activities as
distinguished from isolated and disconnected
acts. You must unanimously agree on which
three violations constitute the series of
three or more violations in order to find
the essential element No. 2 of this offense
has been proven.

It must also be proved that the
defendants engaged in the continuing series
of violations with at least five or more
persons, whether or not those persons are
named in the indictment and whether or not
the same five or more persons participated
in each of the violations, or participated
at different times. And, it must be proved
that the defendant’s relationship with the
other five or more persons was that of
organizers, supervisors or managers – that
the defendant’s relationship with the other
five or more persons was that of organizer,
supervisor or manager, and that the
defendant was more than a fellow worker and
either organized or directed the activities
of the others, whether the defendant was the
only organizer or supervisor or not.

Finally, it must be proved that the
defendant obtained substantial income or
resources from the continuing series of
violations. This means that the defendant’s
income from violations, in money or other
property, must have been significant in size
or amount as distinguished from relatively
insubstantial, insignificant or trivial
amount.

In Richardson v. United States, 526 U.S. 813, 815

(1999), the Court, per Justice Breyer, held:

A federal criminal statute forbids any
"person" from "engag[ing] in a continuing
criminal enterprise." 84 Stat. 1264, 21

-7-
 U.S.C. § 848(a). It defines "continuing
criminal enterprise" (CCE) as involving a
"violat[ion]" of the drug statutes where
"such violation is a part of a continuing
series of violations." § 848(c). We must
decide whether a jury has to agree
unanimously about which specific violations
make up the "continuing series of
violations." We hold that the jury must do
so. That is to say, a jury in a federal
criminal case brought under § 848 must
unanimously agree not only that the
defendant committed some "continuing series
of violations" but also that the defendant
committed each of the individual
"violations" necessary to make up that
"continuing series."

Defendant acknowledges that the district court

instructed the jury that it had to unanimously agree as to the

three violations that constituted the series of violations. He

contends, however, that the court erred because “it failed to

identify which predicate offenses the continuing criminal

enterprise was based upon so as to permit the jury to determine

if it unanimously agreed upon said specific predicate offenses

which should have been specifically identified in the jury

instructions.”

We read nothing in Richardson requiring such action by

the district court. If it had instructed the jury along the

lines defendant suggests, it would have usurped the function of

the jury. Accordingly, we rule that the instruction met the

Richardson requirements.

-8-
 B. Whether the district court committed
reversible error by allowing evidence of
drug trafficking at the Ramos Antonini
Housing Project during 1996 and 1997 and an
agent's interpretation of videotapes.

The material allowed to be introduced as evidence over

defendant’s objections included videotapes and photographs taken

at the drug point in the Ramos Antonini Housing Project. The

evidence allegedly depicted narcotic sales taking place on the

following dates: April 24, May 28, May 30, May 31, June 5, June

13, and June 15, 1996; and January 30, 1997.

Defendant also objected to the expert testimony of

Elias Negron, a member of the FBI’s Safe Streets Task Force.

Negron explained to the jury how the videotapes depicted drug

transactions. Negron also gave his expert opinion that the

extended period of lack of violence at the drug point showed

that defendant and his cohorts had such secure control of the

drug point that no other drug gangs would attempt to take it

over.

Defendant’s objections to the videotape evidence are

based on relevancy and Federal Rule of Evidence 403. The

relevancy contention is twofold: (1) that the evidence did not

prove that the drug trafficking at the drug point in the housing

development in 1996 and 1997 related to defendant and the

conspiracy charged in the indictment; and (2) that both

-9-
defendant and Vega-Figueroa had been absent from the Ramos

Antonini Housing Project since 1995.

There was a plethora of evidence, however, as to how

defendant and Vega-Figueroa operated and strictly controlled the

enterprise regardless of their occasional physical absence from

Puerto Rico. William Acevedo Rodriguez, a trusted lieutenant in

the enterprise, testified as to the operation of the drug

points.3 Alicia Gotay Saez testified that she and her sister ran

a drug point in the housing project in competition with the one

run by Vega-Figueroa and defendant. Gotay described in detail

how a drug point is operated. She also testified that after she

refused to join Vega-Figueroa’s enterprise, her sister was shot

to death at his drug point.

Ramon Caesareo Soto, who worked for a rival of the

criminal enterprise throughout the life of the conspiracy run by

Vega-Figueroa and defendant, described in detail the violence

and killings that had taken place in the Ramos Antonini Housing

Project between rival drug gangs for control of the drug trade

in the project in the years 1960 to 1963. He testified that, by

3
After Acevedo was arrested in March of 1995, he decided to
become a cooperating witness. He was afraid that if he was
incarcerated in the main prison at Guayama, he would be killed
by other inmates because he had participated in the killing of
friends of theirs.

-10-
1997, there was only one drug point in the project, which was

controlled by the enterprise run by Vega-Figueroa and defendant.

There was evidence from which a jury could find beyond

a reasonable doubt that defendant was part of a criminal

enterprise and conspiracy devoted to selling illegal drugs that

started on or about August 1, 1990, and continued through March,

1997. There was also evidence from which a jury could

reasonably find that the physical presence of defendant and/or

Vega-Figueroa at all times was not necessary to the daily

operation of the two drug points.

The evidence described above was not the only evidence

before the jury on drug trafficking under defendant’s and Vega-

Figueroa’s auspices. Our careful scrutiny of the record

convinces us that the jury verdict was based on evidence that

constituted proof beyond a reasonable doubt of defendant’s guilt

as charged in the indictment.

We now turn to the objection based on the admission of

videotapes and photographs of the drug point in the public

housing project and the admission of expert testimony to explain

the tapes and photographs. Defendant argues that this evidence

should have been excluded because it violated Fed. R. Evid. 403.

Rule 403 provides:

Exclusion of Relevant Evidence on Grounds of
Prejudice, Confusion, or Waste of Time

-11-
 Although relevant, evidence may be
excluded if its probative value is
substantially outweighed by the danger of
unfair prejudice, confusion of the issues,
or misleading the jury, or by considerations
of undue delay, waste of time, or needless
presentation of cumulative evidence.

Defendant objected to the introduction of the

videotapes and photos as highly prejudicial because they were

taken after he had left Puerto Rico, while he was in New York

State. We point out that New York and Puerto Rico are only a

short plane ride apart and telephone communication is routine.

We have already found that defendant’s daily presence was not

necessary for the operation of the drug point. There was no

violation of Fed. R. Evid. 403 by the introduction of the

videotapes and photos of the drug point.

Defendant also claims that it was a violation of Rule

403 to allow an expert witness to explain to the jury what the

videotapes and photos depicted. He argues that the testimony of

the expert was not necessary because the jury was capable of

understanding what was going on without expert help.

The appropriate test for reviewing the admission or

exclusion of expert testimony is abuse of discretion. General

Elec. Co. v. Joiner, 522 U.S. 136, 139 (1997). Elias Negron, a

member of the FBI’s Safe Streets Task Force, provided his expert

opinion that the videotapes and photographs showed drug

-12-
transactions taking place. He also proffered his opinion that

the extended non-violent period at the housing project showed

that defendant and Vega-Figueroa were in firm control of drug

trafficking at the project and that no other drug gangs

attempted to compete with the criminal enterprise and conspiracy

in which defendant played a major role. It seems clear that

under the pertinent facts and the applicable law the district

court did not abuse its discretion in admitting the videotapes

and photos and allowing Elias Negron to testify as he did.

C. Whether or not prosecutor’s closing
argument stating repeatedly that the
government’s evidence had gone “unrebutted”
and “unrefuted” constituted improper comment
on the silence of defendants and transferred
burden of proof to defendants and improper
argument concerning “dream” of peaceful
residential projects warrants granting of
new trial.

No objections were made by defendant to the statements

by the prosecutor during her argument. This means that we

review for plain error. See United States v. Sepulveda, 15 F.3d

1161, 1187 (1st Cir. 1993).

Once the prosecutor’s words are placed in context, we

inquire whether “the language used was manifestly intended or

was of such character that the jury would naturally and

necessarily take it to be a comment on the failure of the

accused to testify.” Id. at 1187 (quoting United States v.

-13-
Glantz, 810 F.2d 316, 322 (1st Cir. 1987) (citations omitted)).

We note that in his final charge, the judge instructed the jury

that the defendants had the right to remain silent and not

testify, and that their failure to testify could not be

considered as a factor in the case.

Our first task is to put the prosecutor’s words in

context. She began her argument by stating:

I’d like to start by highlighting what
evidence we have presented to you that is
just simply, completely unprofitable [sic],
unrebuttable.

What do we know is a fact, that
neither I nor any defense counsel that can
stand here before you can argue to the
contrary? What has been so well-established
that it is simply undeniable?

. . . We know that on May 16th, 1994,
two people got killed at the Hogar Crea
located in Saint Just La Quinta in Carolina,
and that was Reinaldo Colón Gonzalez and
Melvin Flores Montalvo. No doubt about
that.

What else do we know about that event
that is completely unrefutable? We know
that Daisy Serrano found 19 rifle casings at
the scene of these two murders.

We know that Daisy Serrano found 18
.45-caliber casings at the scene of these
two murders. They were there. They’ve been
admitted here in court. There is nothing
that any witness can say or that any person
can argue that these casings do not exist.
Eighteen .45-caliber casings recovered from
the scene of these crimes. Nineteen rifle
casings recovered from the scene of these

-14-
 two murders. They’re here. They exist.
There’s no doubt about that.

Thirty 9-millimeter casings recovered
at the scene of this crime. Those are here
also. These simply cannot go away; there’s
just no going around that.

It seems obvious that the prosecutor was not, even by

the broadest possible interpretation of the words “unprofitable”

and “unrebuttable,” commenting on defendant’s failure to

testify. What she stated were facts that were unrebuttable.

The next statement was made in the following context.

We also know that one of those
individuals was carrying this revolver,
because Mr. Maldonado told you that
projectiles recovered from the body of
Reynaldo and at least one projectile
recovered from the body of Melvin were fired
by this revolver right here (indicating).
That’s unrebuttable.

Where was this revolver found? This
revolver was found in the house of Carlos
Hernandez Vega. That evidence also went
unrebutted before you.

The agent who found this weapon, Edwin
Rodriguez, says, “I found this weapon in the
house of Carlos Hernandez Vega,” and Mr.
Maldonado says this was one of the revolvers
used during the commission of the murders at
Hogar Crea.

The context is not complete, however, without the

following. There was an objection by defense counsel:

MS. DAVILA: She misstated the
evidence. She said it was found in Carlos
Hernandez Vega’s. What the evidence said

-15-
 was that the agent seized it from the floor
of the bottom of the residential project.
. . . .

MS. RODRIGUEZ: We stand corrected.

The prosecutor acknowledged that she had incorrectly

stated the testimony of a witness.

The next comment and context is as follows.

And it just so happens that one of the
other weapons used in the murders is found
in Carlos Hernandez Vega’s and at least one
other person who William Acevedo Rodriguez
says was with him admits to Agent Luis
Negron and to Agent Vazquez of the FBI that
he is indeed guilty of the Hogar Crea
murders. It’s unrefutable evidence. It’s
unrebuttable.

Acevedo was a former member of the enterprise and

conspiracy. He was one of the chief witnesses for the

government. His admission to murder is hardly the type of

statement that the jury would think that defendant would want to

answer.

The next statement in context was:

Now, what else, what other evidence has come
before you that is unrebuttable, undisputed?

Well, we know that at least one wound
on Reynaldo Colón Gonzalez’s body was fired
from a distance of less than 2 feet.
Whoever fired the shot that made that tattoo
which Dr. Rosa Figueroa explained to you is
caused by gun powder particles which are
lodged on the skin when the gun is being
held at a close distance from the victim

-16-
 means that that one shot was fired less than
2 feet away.

What does that mean? That means that
Reynaldo could not have been any further
away from the person who was holding that
gun to his head than that TV is to me right
now – less than 2 feet; less than 2 feet
away. That is undisputed, unrebuttable
evidence.

Here, the use of the words “undisputed, unrebuttable

evidence” hardly can be construed as a comment on defendant’s

failure to testify about these facts.

We proceed to the next statement:

What else has been presented that is
unrebuttable, unrefuted testimony? Well, we
know that in May of 1996, Edgardo Quiros
Morales produced these two rifles right here
in a matter of minutes to a police officer
so he would do away with an arrest warrant
against him.

Again, we find nothing to suggest a trespass on

defendant’s right to remain silent in this statement.

The final statement is slightly more troubling:

What was he going to do with the
cocaine and marijuana that was seized in
that apartment in 1992? That evidence came
before you unrebutted and unrefuted.

This statement conceivably could be construed as a

comment on the defendant’s failure to explain the circumstances

of the drugs being in his apartment. But there was no

contemporaneous objection, and we have held in such

-17-
circumstances that ambiguous statements in a prosecutor's

summation ordinarily should be given their more innocuous

meaning. United States v. Lilly, 983 F.2d 300, 307 (1st Cir.

1992).

We need not decide whether this instruction involved

plain error, because in all events, we think that any error was

harmless. Rule 52(a) of the Federal Rules of Criminal Procedure

defines harmless error as "[a]ny error, defect, irregularity or

variance which does not affect substantial rights . . . ."

Rule 52(b) provides that "[p]lain errors or defects affecting

substantial rights may be noticed although they were not brought

to the attention of the court." The Supreme Court held in

United States v. Olano, 507 U.S. 725 (1993), that "Rule 52(b)

leaves the discretion to correct the forfeited error within the

sound discretion of the court of appeals, and the court should

not exercise that discretion unless the error 'seriously

affect[s] the fairness, integrity or public reputation of

judicial proceedings.'" Id. at 732 (quoting United States v.

Young, 470 U.S. 1, 15 (1985)). Whether an error is prejudicial

or harmless depends on whether it effects the outcome of the

case. See id. at 734 (holding that the "affecting substantial

rights" language of Rule 52(b) "means that the error must have

been prejudicial: It must have affected the outcome of the

-18-
district court proceedings"). In order to satisfy the

"affecting substantial rights" prong of Rule 52(b), a defendant

must normally make a specific showing of prejudice. See id. at

737.

The harmless error doctrine also applies to the final

statement made by the prosecutor in her argument.

I will tell you and leave you with this
thought. There is a dream in public housing
projects in Puerto Rico. That there is a
tomorrow that we can make it better. That
is our dream, that is part of our promise,
and by “our” I mean those of us in Puerto
Rico.

D. Whether or not the district court
committed reversible error in allowing
prosecutor to present false New York
identifications of appellant in evidence,
which were obtained while appellant was
charged on unrelated state charges and were
distant in time from indictment object of
trial.

Ten days before being indicted, defendant was arrested

in New York on charges unrelated to those in this case. When

arrested, defendant possessed several false identification

items. These were introduced in evidence over defendant's

objections.

In her closing argument, the prosecutor characterized

defendant’s possession of false identification as “consciousness

of guilt.” The government points out that Acevedo Rodriguez, a

-19-
member of the enterprise with whom defendant had participated in

drug-related murders, was arrested in March, 1995. Because of

statements Acevedo had made to another member of the conspiracy

charged in this case, defendant knew that Acevedo planned to be

a cooperating witness in this case. Based on these premises,

the government contends that defendant had obtained false

identification so as to avoid prosecution in this case.

Defendant counters that he obtained the false identification as

long as seventeen months before he was indicted in this case,

and that the false identification was discovered during the

prosecution of an entirely different case.

We decline to decide this issue. It is abundantly

clear from the record that if it was error to admit the false

identification evidence, the error was harmless. See Fed. R.

Crim. P. 52(a).

The judgment of the district court is affirmed.

-20-