United States Court of Appeals
For the First Circuit
No. 01-1267
UNITED STATES OF AMERICA,
Appellee,
v.
JAIME GARCÍA-TORRES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella, Circuit Judge,
and Lynch, Circuit Judge.
Joseph C. Laws, Jr., Federal Public Defender, for appellant.
Nelson Pérez-Sosa, Assistant United States Attorney, with
whom Guillermo Gil, United States Attorney, and Jorge E. Vega-
Pacheco, Assistant United States Attorney, Chief, Criminal
Division, were on brief for the United States.
February 8, 2002
BOUDIN, Chief Judge. On February 18, 1997, the
defendant-appellant, Jaime Garcia-Torres (a/k/a "Coque"),
participated in the murder of one Eddie Vazquez in Ponce, Puerto
Rico. He has since been convicted of the murder and sentenced
in Commonwealth court to a long prison term. In this appeal,
Jaime contests his federal conviction for drug conspiracy and
related offenses based on the same murder.1 A brief precis of
the facts, based on trial evidence favorable to the government,
United States v. David, 940 F.2d 722, 730 (1st Cir.), cert.
denied, 502 U.S. 989 (1991), will set the scene.
During the 1990s, a number of drug dealers sold their
wares from drug points located in or around Ponce. While the
points were controlled by individuals, the owners assisted each
other in obtaining and distributing drugs and acted together
against perceived threats to their businesses. In 1994 or early
1995, Angela Ayala-Martinez ("Ayala") emerged as a central
1The federal offenses were conspiracy to possess cocaine and
heroin with intent to distribute, 21 U.S.C. §§ 841(a)(1), 846;
using and carrying a firearm during and in relation to a drug-
trafficking crime, thereby causing the death of a person, 18
U.S.C. §§ 924(c)(1), (j); and conspiracy to do the same, 18
U.S.C. § 924(o).
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figure when she began to receive major offshore drug shipments
and became a major supplier to drug points in the area.
One of the owners supplied by Ayala was Tommy Garcia-
Torres (no relation to Jaime), who controlled the La Cantera
drug point with his two brothers (Manuel and Andres) and other
helpers. Sometime in 1994, Tommy found that a large amount of
money was missing and blamed his brother-in-law "Gerardito", who
lived with his own brother "Nelsito" across the street from
Tommy. After some hostilities involving firearms, Gerardito and
Nelsito left the neighborhood and began associating with Michael
Vazquez, who lived a few blocks away. Neither Michael nor his
father, Eddie Vazquez, were engaged in drug dealing, but Tommy's
group resented the Vazquezes' association with Gerardito and
Nelsito. At one point, one of Tommy's gunmen shot Michael,
although not fatally.
Although this quarrel was temporarily patched up by
Tommy paying Eddie for Michael's medical expenses, Michael
continued to associate with Gerardito and his friends to the
point of helping them shoot at members of Tommy's group at
Tommy's drug points. In return, members of Tommy's group began
harassing Eddie. Further violence followed between the two
sides and, while the Vazquezes took no part in drug dealing, the
Garcias' drug point suffered some loss of customers due to the
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violence. More violence followed, and Tommy's group began to
fear that Gerardito might try to take over their drug point.
This fear grew when in August 1995 Tommy was murdered
and suspicion fell on the Vazquezes. Murders in both directions
followed in 1996 and 1997. In 1998, Tommy's group, now led by
his surviving brother Manuel and others, located the Vazquezes'
new residence and devised a plan to kidnap and murder them.
Ayala, Manuel, a co-worker Deri Ventura, and Edwin Melendez
(a/k/a "Danny Gongolon"), pooled $20,000 to implement the plot.
Gongolon was the owner of other drug points and was in the past
a supplier to Ayala.
At this point Jaime first entered the scene. Manuel
told the other plotters that Jaime--who was apparently then
working as a freelance gunman or supplier of guns--had
connections with men who would pose as police officers. On the
night of February 17-18, 1997, the supposed officers visited the
Vazquezes' house in Guayama and carried off Michael in the early
morning hours. Just before the kidnapping, Manuel and others
had gone to get guns from Jaime, who provided them and then (for
reasons unknown) chose to go along with them.
As the kidnapping developed, Manuel's group and the
pretend policemen took Michael Vazquez and fled in several cars.
Eddie and his wife pursued them fruitlessly, then went to the
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Guayama police station, and then finally sought to call the
Ponce police from a pay telephone. While Eddie was on the
phone, Jaime and Andres Garcia drove up in a car and shot and
killed him. The police caught Jaime and Andres near the scene,
and Eddie's wife identified them as the killers. By this time,
Michael Vazquez had been murdered by Manuel and Ventura.
Jaime was charged on February 16, 2000, in the three-
count indictment already described. The government's theory was
that by participating in the murder Jaime had become part of an
overall drug distribution conspiracy involving Ayala, Tommy and
his brothers, and others; that Jaime's assistance in the murders
comprised his adherence to the conspiracy; and the use of (or
conspiracy to use) a firearm or firearms "during and in
relation" to the drug conspiracy, and the resulting death,
violated the other two federal statutes. See note 1, above.
During four days of trial, the government presented the
gist of what has been described along with further details--
largely not involving Jaime--about drug operations in Ponce
conducted by Ayala, the Garcia brothers, and others associated
with them.2 Ample evidence showed that Jaime had participated
2Much more extensive evidence of the same events was
presented in the forty-day trial of the main drug conspirators.
See United States v. Martinez-Medina, ___ F.3d ___ (1st Cir.
2002).
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in the murder but the only other evidence that connected Jaime
with drug matters in any way were two hearsay statements,
admitted over objection, suggesting that Jaime had at one time
worked as a guard for an independent drug point owner named Rafa
and that Jaime had then become an independent gunman for hire.
After the judge denied a motion for judgment of
acquittal, the jury convicted Jaime on all three counts. Jaime,
who is already serving an 18-year Commonwealth sentence for the
murder, was sentenced to life imprisonment for the drug
conspiracy as well as sentences on other counts and various
other penalties. He now appeals, raising only two issues: the
sufficiency of the evidence and the admission of the Rafa-
related hearsay statements.
On this appeal, our focus is on the drug conspiracy set
forth in count one. The government's claim was that by
participating in the murder and providing help incident to the
kidnapping, Jaime thereby became a member of the conspiracy
involving the Garcia brothers and others to possess drugs for
distribution. The other two counts depend on this premise: each
posits firearms-related action by Jaime, "during and in relation
to a drug trafficking crime," and the only drug trafficking
crime pointed to is the count one conspiracy.
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For Jaime to join a drug conspiracy, it was necessary
that he agree, whether by words or action, to join with others
in the enterprise--here, to possess drugs for distribution.
United States v. Innamorati, 996 F.2d 456, 469-70 (1st Cir.
1993), cert. denied, 510 U.S. 1120 (1994). Whatever the breadth
of the drug conspiracy in which the Garcia brothers were
involved, there is no evidence that Jaime was associated with
any phase of their drug collection, handling, or sales.
Nevertheless, a drug conspiracy may involve ancillary functions
(e.g., accounting, communications, strong-arm enforcement), and
one who joined with drug dealers to perform one of those
functions could be deemed a drug conspirator. See United States
v. Gomez-Pabon, 911 F.2d 847, 853-54 (1st Cir. 1990), cert.
denied sub nom. Benitez Guzman v. United States, 498 U.S. 1074
(1991).
There is no direct evidence of any explicit agreement
by Jaime to join the drug conspiracy and the main evidence of an
implicit agreement is that he furnished help of several kinds in
the murder of Eddie Vazquez and the kidnapping and the
subsequent murder of Michael Vazquez. A drug conspirator need
not know all of the details of the conspiracy, United States v.
Nueva, 979 F.2d 880, 884 (1st Cir. 1992), cert. denied, 507 U.S.
997 (1993), but it is hard to image how someone furnishing a
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peripheral service to a drug conspiracy could be deemed to
"join" that conspiracy unless he knew both that the drug
conspiracy existed and that the peripheral service being
furnished was designed to foster the conspiracy.
Both points are critical. No one can join a conspiracy
without knowledge of its existence--the gravamen is an agreement
to commit an offense. Innamorati, 996 F.2d at 469-70. And even
with knowledge that a conspiracy exists, one who allegedly
"joins" only by furnishing some peripheral service can hardly be
deemed to have "agreed" to conspire through his conduct unless
he has the aim to forward or assist the conspiracy. United
States v. Morillo, 158 F.3d 18, 23 (1st Cir. 1998). If Jaime
did not know that the murders of Eddie and Michael were in aid
of the drug conspiracy, his assistance could hardly count as
deliberate adherence to it. Id. at 23-24.
On the first requisite--Jaime's knowledge of the drug
conspiracy--the evidence is painfully thin. Perhaps many
criminals in a modest sized city know something about the names
and activities of other criminals; and it is true that one of
the drug conspirators knew enough about what Jaime did to seek
out his help in setting up the kidnapping and murder. But the
only specific evidence that comes close to suggesting that Jaime
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knew much about the drug business in Ponce comes from the two
disputed hearsay statements.
The first of the two statements came from Gongolon, who
participated in organizing the kidnapping and murder and
testified for the government. He testified that according to
Rafa, the independent drug dealer mentioned earlier, Jaime had
once worked as a drug point guard for Rafa and later became a
gunman on his own behalf. A second government witness, Gamaliel
Goglas, testified to a somewhat similar statement associating
Jaime with Rafa, made by Manuel Garcia to Goglas outside of
court. These statements, if admissible, might support an
inference that Jaime had enough connection with the drug trade
in Ponce to know that the Garcia brothers and others were
operating a drug conspiracy.
Whether either statement was admissible under the co-
conspirator exception is open to doubt. The governing rule
permits a hearsay statement by a fellow conspirator against the
defendant if made during and in furtherance of the conspiracy;
but while admissibility is decided by the judge and requires
only a preponderance of evidence to establish the predicate,
some evidence of the conspiracy independent of the hearsay
statement itself is required. Fed. R. Evid. 801(d)(2)(E);
United States v. Sepulveda, 15 F.3d 1161, 1181-82 (1st Cir.
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1993), cert. denied, 512 U.S. 1223 (1994). Here, Jaime says
that there was no independent evidence that he and the
declarants were members of any conspiracy.
The government says (unhelpfully) that the main drug
conspiracy--which it builds around Ayala, the Garcia brothers,
and others--was amply established. But this is beside the
point: Rafa's out-of-court statement was admissible against
Jaime only if they were part of the same conspiracy; that
conspiracy was at best one to run Rafa's separate drug
operation; and there is moreover no independent evidence of that
conspiracy unless one counts as adequate corroboration the
hearsay statement--also connecting Jaime and Rafa with drugs--
made by Manuel Garcia and testified to by Goglas.
The statement made by Manuel to Goglas, however terse,
is at least arguably admissible because Manuel and Jaime can be
viewed as conspirators to kidnap and murder Michael and Eddie
Vazquez; that murder conspiracy is independently corroborated;
and the statement by Manuel was allegedly made to Goglas after
the murder during the attempted cover up. So long as the
statement is made during the conspiracy, the "in furtherance"
requirement is administered flexibly. See United States v.
Flores-Rivera, 56 F.3d 319, 330 (1st Cir. 1995). In all events
defense counsel objected to the statement only on grounds of
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relevance; the statement is clearly relevant and any claim now
that it was inadmissible hearsay falters on the plain error
rule.3
This second statement furnishes what may be adequate,
although still thin, evidence from which a jury might suppose
that Jaime knew something about the Garcia brothers and their
associates. In addition to the hearsay statement, Goglas
testified that Rafa, at some point in time, supplied drugs to
Manuel Garcia's father-in-law, and may have distributed drugs on
at least one occasion to Manuel's drug point. The hearsay
statement creates a link between Jaime and Rafa, and there is
this tangential affiliation between Rafa and Manuel Garcia.
Even so, there is no evidence that Jaime ever met Manuel or even
worked for Rafa at the time this affiliation existed.
Assuming this is adequate to show that Jaime knew about
the Garcia brothers' drug conspiracy, it remains a fatal flaw
that virtually no evidence shows that Jaime knew, or even had
3If the second hearsay statement is treated as admissible,
the first is redundant. The main relevance of either is to give
Jaime some specific knowledge of the drug trade in Ponce based
on more than speculation, and either one of the two statements
serves that purpose. Although the first statement includes the
additional and arguably prejudicial addendum that Jaime then
turned into an independent gunman, this hardly matters in this
case because there is virtually no dispute that Jaime
participated in Eddie and Michael's killing. United States v.
Tse, 135 F.3d 200, 209-10 (1st Cir. 1998).
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reason to suppose, that the kidnapping and murder were in aid of
that conspiracy. True, drugs are a common source of violence;
but in this instance Eddie and Michael were not in the drug
business, and there are plenty of other reasons for violence
(debts, revenge, personal animosities). Nor is there any basis
to infer that Jaime was actually involved with the Garcia drug
conspiracy and therefore would have known of the threat posed to
it by the Vazquezes.
Conceivably, Jaime might have asked why those who
solicited his help wanted Michael kidnapped and murdered. But
there is no evidence that this occurred, nor is it obvious that
a professional independent gunman and weapon supplier would
demand such information. And, if he had asked, it is pure
speculation to imagine what he would have been told, given the
mix of drug business and personal vendetta motives for the
animosity and violence.
In sum, the evidence is insufficient to show beyond a
reasonable doubt that Jaime, when participating in the
kidnapping and murder, knew that he was aiding the drug
conspiracy. Without a solid basis for inferring such an
awareness, Jaime stands liable for the murder under Puerto Rico
law--for which he has been convicted in Commonwealth court--but
not for the federal drug conviction. The government makes no
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argument that the other two counts, both dependent on actions by
Jaime "during and in relation to" a drug crime, can stand if the
drug conspiracy conviction falls.
The judgment is reversed and the matter is remanded for
entry of a judgment of acquittal.
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