United States v. Marrero-Ortiz

160 F.3d 768 (1998) | Cited 33 times | First Circuit | November 17, 1998

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. José Antonio Fusté, U.S. District Judge]

In the wake of his conviction on a charge of conspiracy to possess controlled substances with intent to distribute, see 21 U.S.C. §§ 841(a)(1), 846 (1994), defendant-appellant Luis Marrero-Ortiz (Marrero), one of thirty-one defendants named in a wide-ranging indictment, claims that the district court committed a host of errors. We have reviewed the trial record with care and find Marrero's multi-pronged attack on his conviction meritless. Withal, one aspect of the trial court's sentencing determination gives us pause.

With this brief prelude, we proceed to discuss Marrero's principal assignments of error, segregating those points that relate to his conviction from those that relate to sentencing.1

Trial Issues

We start by addressing those assignments of error that center on the trial.

1. Sufficiency of the Evidence.

On a defendant's timely motion, a federal trial court is constrained to order a judgment of acquittal with respect to any given charge if the government fails to present sufficient evidence to sustain a conviction. See Fed. R. Crim. P. 29(a). In this instance, the appellant sought - but did not secure - judgment of acquittal under Rule 29. We review the district court's determination de novo, applying precisely the same standard that obtained below: "whether, after assaying all the evidence in the light most amiable to the government, and taking all reasonable inferences in its favor, a rational fact- finder could find, beyond a reasonable doubt, that the prosecution successfully proved the essential elements of the crime." United States v. Hernandez, 146 F.3d 30, 32 (1st Cir. 1998) (citation and internal quotation marks omitted).

"To prove a drug conspiracy charge under 21 U.S.C. § 846, the government is obliged to 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). The prosecution may meet its burden through either direct or circumstantial evidence, or through some combination thereof. See United States v. Houlihan, 92 F.3d 1271, 1292 (1st Cir. 1996).

In this case, the appellant claims that the government's proof fell short in two respects because the evidence failed to show either that he agreed to participate in the conspiracy or that he possessed an intent to commit the underlying offense. This claim rests mainly on the assertion that the prosecution offered no direct proof that the appellant personally engaged in drug transactions. The claim is groundless: proof of direct participation in the sale of drugs is not required to convict in a drug conspiracy case. See, e.g., United States v. David, 940 F.2d 722, 735 (1st Cir. 1991).

In all events, a percipient witness, Marcos Hidalgo Melendez (Hidalgo), himself a coconspirator, testified that he received money from the appellant after delivering narcotics to him. Furthermore, Hidalgo and another admitted coconspirator testified in substance that Marrero served as a supervisor at the drug ring's distribution center in Corozal. This evidence, in conjunction with testimony concerning (i) the appellant's frequent presence at the ring's

1. The jury also found for the government on a count that sought criminal forfeiture. See 21 U.S.C. § 853 (1994). Because the appellant does not mount an independent challenge to this Disposition, we abjure any further mention of it.

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