United States v. Garcia-Torres

          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).

                                  -2-
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


                                     -3-
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


                                    -4-
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).

                                   -5-
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.




                                           -6-
             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


                                          -7-
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




                                      -8-
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.


                                  -9-
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


                                      -10-
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).

                               -11-
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


                                  -12-
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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