United States Court of Appeals
For the First Circuit
No. 99-1463
UNITED STATES OF AMERICA,
Appellee,
v.
FELIPE ORTIZ DE JESUS,
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.
Edgar R. Vega Pabon, by appointment of the court, for
appellant.
Jacabed Rodriguez-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.
October 17, 2000
SELYA, Circuit Judge. On April 10, 1997, a federal
grand jury sitting in the District of Puerto Rico returned a
three-count indictment against a number of individuals. In
Count 2 of the indictment, the grand jury charged several
persons, including Felipe Ortiz de Jesús (Ortiz), with
conspiring to distribute controlled substances in violation of
21 U.S.C. § 846. In Count 3 of the indictment, the grand jury
charged some of the same individuals, including Ortiz, with
using and carrying firearms during and in relation to the
commission of a drug-trafficking offense. See 18 U.S.C. §
924(c)(1). Following a five-week trial, a petit jury found
Ortiz guilty on both counts. The district court thereafter
sentenced him to a term of life imprisonment on the conspiracy
charge and, ironically, to a consecutive five-year prison term
on the firearms charge. Ortiz appeals.1 Having carefully
reviewed the record, we affirm.
The appellant urges us to overturn his conviction
because of prosecutorial misconduct relating to the presentation
1Ortiz stood trial with eight codefendants (all of whom were
found guilty), and we consolidated the nine ensuing appeals.
Seven of them, including this one, were argued together on
September 14, 2000. The other two were submitted on the briefs
to the same panel. Because this appeal raises issues peculiar
to Ortiz, we have chosen to decide it in a separate opinion.
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of testimony to the grand jury. This broadside refers to the
grand jury testimony of William Acevedo Rodríguez (Acevedo), a
coconspirator who decided to cooperate with the prosecution and
who became a government witness. When Acevedo — the only
witness before the grand jury who implicated the appellant — was
asked to identify the appellant, he described him as a
"gatillero" or "hit man" who "kill[ed] people" on the
instructions of Carlos Hernández Vega (a kingpin of the charged
conspiracy). The grand jury evidently believed this testimony,
as it charged that the appellant "did possess, carry, use and
brandish firearms . . . using them to provide protection to the
leaders of the organization as well as to the drug operations of
the conspiracy from rival drug-trafficking organizations, and to
engage in shootings against members of the rival drug-
trafficking organizations pursuant to the instructions of the
[conspiracy's] leaders."
When the case went to trial, the government called
Acevedo as a witness. He testified on cross-examination that,
although he had labeled the appellant as a hit man, he had never
actually seen the appellant fire any shots. When pressed, he
admitted that his grand jury testimony was in that sense "a
mistake."
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Characterizing this testimony as a flat contradiction
of Acevedo's grand jury testimony, the appellant moved ore
sponte to dismiss the indictment on the ground that the
prosecutor had knowingly presented false testimony to the grand
jury. The district court denied the motion. After the jury
found the appellant guilty, he moved for judgment of acquittal
on this theory. 2 The district court declined to scuttle the
indictment.
In this venue, the appellant persists in his contention
that the district court erred in refusing to dismiss the
indictment for prosecutorial misconduct. We must preface our
review of this contention with a caveat: not every
prosecutorial bevue during grand jury proceedings warrants the
post-conviction dismissal of an indictment. Usually, the trial
jury's verdict provides an adequate safeguard against the
failings of the grand jury process. See United States v.
Georgi, 840 F.2d 1022, 1030 (1st Cir. 1988). Thus, dismissal
after conviction is appropriate only in cases of "serious and
blatant prosecutorial misconduct" — misconduct so grave that it
calls into doubt the fundamental fairness of the judicial
2
The appellant's motion for judgment of acquittal also
challenged the sufficiency of the evidence. We discuss that
argument infra.
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process. United States v. Font-Ramirez, 944 F.2d 42, 46 (1st
Cir. 1991) (citations omitted).
In this case, the appellant stumbles at the starting
gate: he has failed to prove that any prosecutorial misconduct
occurred. While he claims that the government knowingly
permitted a witness to make false statements before the grand
jury, leading to an improper probable cause determination, his
claim is built on a non-existent foundation. We explain
briefly.
The appellant's argument proceeds from the premise that
Acevedo's statements before the grand jury were antithetic to
his trial testimony. But the record belies this premise.
During the grand jury proceeding, Acevedo provided testimony
about the appellant's general relationship with Carlos Hernández
Vega. Much of his testimony was obviously hearsay — and there
is, of course, no prohibition on either the presentation of
hearsay evidence to a grand jury or the grand jury's use of that
hearsay evidence in determining whether to indict. See, e.g.,
United States v. Houlihan, 92 F.3d 1271, 1289 n.18 (1st Cir.
1996); Font-Ramirez, 944 F.2d at 46. Read in context, Acevedo's
description of the appellant as a "hit man" fell into this
category; it dealt more with the appellant's reputation than
with Acevedo's personal observations.
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At trial, however, Ortiz's counsel laid bare Acevedo's
lack of any personal knowledge of the appellant's alleged
homicidal tendencies. Acevedo's statement that he had no such
knowledge plausibly can be viewed as serving to clarify his
grand jury testimony, rather than repudiating it in toto. In
the final analysis, then, the record regarding the veracity of
Acevedo's statements to the grand jury is uncertain.
That ends this aspect of the matter. Because the two
sets of statements did not necessarily conflict, the appellant
cannot be said, as a matter of law, to have met his burden of
proving falsity. And without proof that the testimony adduced
before the grand jury was false, the appellant cannot succeed in
his contention that the prosecutor knew Acevedo's grand jury
testimony was fabricated, but used it nonetheless. See, e.g.,
United States v. Flores-Rivera, 56 F.3d 319, 328 (1st Cir. 1995)
(finding no prosecutorial misconduct where, in considering
allegedly false testimony before a grand jury, there was
insufficient evidence to prove a particular statement to be
untrue).
If more were needed — and we doubt that it is — the
appellant's contention also is deficient in other respects. In
the first place, even if the record showed a direct
contradiction — which it does not — there is no reason to
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believe that Acevedo's grand jury testimony, rather than his
trial testimony, was false. In the second place, even if the
record showed that the statements to the grand jury were lies —
which it does not — there is no proof that the prosecutor knew
that fact when he brought the witness before the grand jury.
Absent knowledge of falsity, any defect in the grand jury
proceedings would, on this record, be harmless beyond a
reasonable doubt (i.e., inoculated by the jury verdict). See
Bank of Nova Scotia v. United States, 487 U.S. 250, 254 (1988);
Flores-Rivera, 56 F.3d at 328. For these reasons, we reject the
appellant's principal assignment of error.
Our journey is not yet finished, as Ortiz's appeal also
entails a challenge to the sufficiency of the evidence. This
challenge invokes a familiar standard of review: when
evaluating the sufficiency of the evidence presented against a
defendant in a criminal case, an appellate court must "canvass
the evidence (direct and circumstantial) in the light most
agreeable to the prosecution and decide whether that evidence,
including all plausible inferences extractable therefrom,
enables a rational factfinder to conclude beyond a reasonable
doubt that the defendant committed the charged crime." United
States v. Noah, 130 F.3d 490, 494 (1st Cir. 1997).
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It is hornbook law that a defendant may be found guilty
of participating in a drug-trafficking conspiracy without
knowing the full extent of the enterprise or the identities of
all the coconspirators. See United States v. Rivera-Santiago,
872 F.2d 1073, 1079 (1st Cir. 1989). The governing statute is
21 U.S.C. § 846. To convict a defendant of violating that
statute, the government must "show beyond a reasonable doubt
that a conspiracy existed and that a particular defendant agreed
to participate in it, intending to commit the underlying
substantive offense." United States v. Sepulveda, 15 F.3d 1161,
1173 (1st Cir. 1993). This burden may be met through either
direct or circumstantial evidence, or through some combination
of the two. See United States v. Marrero-Ortiz, 160 F.3d 768,
772 (1st Cir. 1998); Houlihan, 92 F.3d at 1292. Moreover, both
the conspiracy's existence and a particular defendant's
participation in it may be inferred from the members' "words and
actions and the interdependence of activities and persons
involved." United States v. Boylan, 898 F.2d 230, 241-42 (1st
Cir. 1990).
The appellant's related conviction implicates 18 U.S.C.
§ 924(c)(1), which provides in pertinent part that: "[Whoever,]
during and in relation to any . . . drug trafficking crime . .
. for which he may be prosecuted in a court of the United
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States, uses or carries a firearm, shall . . . [be punished as
provided]." In order to convict under the "use" prong of this
statute, the government must prove beyond a reasonable doubt
"actual use" of a firearm, a standard that "'includes
brandishing, displaying, bartering, striking with, and most
obviously, firing or attempting to fire, a firearm.'" United
States v. Valle, 72 F.3d 210, 217 (1st Cir. 1995) (quoting
Bailey v. United States, 516 U.S. 137, 148 (1994) (citations
omitted)). To convict under the "carry" prong of the statute,
the government must prove beyond a reasonable doubt that the
defendant knowingly carried, conveyed, or transported a firearm.
See Muscarello v. United States, 524 U.S. 125, 126 (1998).
Finally, the government also must prove beyond a reasonable
doubt the requisite nexus between the use or carriage, on one
hand, and a drug-trafficking crime, on the other hand. See,
e.g., United States v. Bergodere, 40 F.3d 512, 518 (1st Cir.
1994); United States v. Hadfield, 918 F.2d 987, 998 (1st Cir.
1990).
Against this backdrop, we turn to the appellant's
second assignment of error. Ortiz concedes, as he must, that
the government proved the existence of a large, long-lasting
conspiracy dealing in various controlled substances. The
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government presented evidence linking the appellant both to a
drug point in the Ramos Antonini housing project that the
conspiracy controlled and to the scene of two murders carried
out in an endeavor to secure the gang's hegemony over another
drug point. The government also offered evidence which showed
that, after having been informed of the location of the planned
assassinations, the appellant proceeded to that locus with other
individuals charged in the indictment. Finally, a survivor of
the attempted massacre, Ramón Santiago-Casiano, identified the
appellant as the person who shot him in the face with a
revolver. This copious evidence more than suffices to undergird
the jury's verdict on both counts of conviction.
The appellant seeks to level this mountain of proof by
assailing the credibility of the government's witnesses. But
that line of attack avails him naught. In passing upon
challenges to the sufficiency of the evidence, we are bound to
refrain from making independent judgments as to witness
credibility. See Noah, 130 F.3d at 494; United States v.
Echeverri, 982 F.2d 675, 677 (1st Cir. 1993). We recently
summed up this principle in United States v. Alicea, 205 F.3d
480 (1st Cir. 2000), in which we wrote that "[e]xcept in the
most unusual circumstances . . . credibility determinations are
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for the jury, not for an appellate court." Id. at 483. The
circumstances here are not extraordinary, so this case comes
within the sweep of the general rule, not the long-odds
exception to it.
We need go no further. We conclude, without serious
question, that the indictment returned against the appellant was
not tainted by prosecutorial misconduct. We likewise conclude
that
the evidence presented at trial, taken in the light most
congenial to the government's theory of the case, amply
substantiated the jury verdict. No more is exigible.
Affirmed.
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