United States v. Burgos-Montanez

1

UNITED STATES OF AMERICA v. JESUS BURGOS-MONTANEZ, Appellant in 18-3538 JEAN CARLOS VEGA-ARIZMENDI, Appellant in 18-3586 JOSE R. HODGE, Appellant in 18-3590 SERGIO QUINONES-DAVILA a/k/a Chulin a/k/a Pai, Appellant in 18-3664 OMY A. GUTIERREZ-CALDERON, Appellant in 19-2909 ANIBAL A. VEGA-ARIZMENDI, a/k/a Bebo, Appellant in 19-2917

Nos. 18-3538, 18-3586, 18-3590, 18-3664, 19-2909, 19-2917

United States Court of Appeals, Third Circuit

April 4, 2023

NOT PRECEDENTIAL

Argued on December 8, 2022 ^[*]

On Appeal from the District Court of the Virgin Islands (D.C. No. 1-16-cr-00009) District Judge: Honorable Wilma A. Lewis

Yohana M. Manning Counsel for Appellant Jesus Burgos-Montanez

Robert J. Kuczynski ARGUED Counsel for Appellant Jean Carlos Vega-Arizmendi

Renee D. Dowling ARGUED Law Office of Renee D. Dowling

Kye Walker ARGUED Counsel for Appellant Sergio Quinones-Davila

Jennie M. Espada-Ocasio ARGUED Counsel for Appellant Omy A Gutierrez-Calderon

Eszart A. Wynter, Sr ARGUED Counsel for Appellant Anibal A Vega-Arizmendi

Delia L. Smith, United States Attorney Adam Sleeper, Assistant United States Attorney ARGUED Counsel for Appellee

Before: CHAGARES, Chief Judge, GREENAWAY, JR. and FISHER Circuit Judges.

OPINION ^[*]

FISHER, CIRCUIT JUDGE

These consolidated appeals arise from a lengthy drug conspiracy trial involving six defendants: Jesus Burgos-Montanez, Jose Hodge, Jean Carlos Vega-Arizmendi, Anibal Vega-Arizmendi^[1], Sergio Quinones-Davila, and Omy Gutierrez-Calderon.^[2] From 2014 to 2016, Defendants conspired to smuggle drugs onto St. Croix by boat. They were eventually convicted of conspiracy to possess with intent to distribute more than five kilograms of cocaine, as well as either possession or attempted possession of cocaine. They appeal, arguing errors occurred at trial and sentencing. For the reasons set forth below, we will affirm the convictions and sentences of all Defendants.

I.^[3]

A. Forfeiture

Before discussing the merits of the Defendants' appeal, we note an error made by the Defendants that potentially results in the forfeiture of some of their arguments.

While the appeal was pending, our Clerk's Office encouraged the Defendants to adopt, pursuant to Fed. R. App. P. 28(i), portions of one another's briefs to minimize repetition. Defendants Jean Carlos, Gutierrez-Calderon, Hodge and Quinones-Davila attempt to incorporate all arguments raised by their co-Defendants by including blanket statements of incorporation in their briefs. This is insufficient. Defendants must make clear the specific issues they are incorporating; otherwise, they have forfeited the issue on appeal. United States v. Williams, 974 F.3d 320, 339 n.7 (3d Cir. 2020). "[G]eneral statements of adoption under Rule 28(i) will not be regarded." Id. This Court will not "serve as a Defendant's lawyer, 'scour[ing] the record' for him and determining 'which of the many issues of his codefendants [are] worthy of our consideration.'" Id. (quoting United States v. Fattah, 914 F.3d 112, 146 n.9 (3d Cir. 2019)). Thus, any arguments Defendants attempt to incorporate are forfeited.

B. Sufficiency of the Evidence

Defendants challenge their convictions based on the sufficiency of the evidence. We review a district court's denial of a motion for judgment of acquittal de novo. United States v. Hoffert, 949 F.3d 782, 790 (3d Cir. 2020). In conducting our de novo sufficiency of the evidence inquiry, we view "the record in the light most favorable to the prosecution to determine whether any rational trier of fact could have found proof of guilt beyond a reasonable doubt." United States v. Caraballo-Rodriguez, 726 F.3d 418, 430 (3d Cir. 2013) (internal quotation marks, citation, and alteration omitted).

To succeed on Count One, conspiracy to possess with intent to distribute more than five kilograms of cocaine from January 2014 to March 2016, in violation of 21 U.S.C. §§ 841(a), 841(b)(1)(A)(ii) and 846, the Government needed to prove the following: "(1) a unity of purpose between the alleged conspirators; (2) an intent to achieve a common goal; and (3) an agreement to work together toward that goal." United States v. Pressler, 256 F.3d 144, 147 (3d Cir. 2001). Counts Two through Five are attempted possession with the intent to distribute more than five kilograms of cocaine; to convict, the jury must have been persuaded beyond a reasonable doubt that each defendant "(1) acted with the requisite intent to violate the statute, and (2) performed an act that, under the circumstances as he believes them to be, constitutes a substantial step in the commission of the crime." United States v. Tykarsky, 446 F.3d 458, 469 (3d Cir. 2006). Count Six charged possession with intent to distribute five or more kilograms of cocaine, in violation of 21 U.S.C. §§§ 841(a), 841(b)(1)(A)(ii), 846 and 18 U.S.C. § 2, where the Government needed to prove that each Defendant "(1) knowingly possessed [the] controlled substance with (2) the intent to distribute it." United States v. Iglesias, 535 F.3d 150, 156 (3d Cir. 2008) (citation omitted). Counts Two through Six were brought under the theory of aiding and abetting, meaning the Government also needed to prove beyond a reasonable doubt that a substantive crime was committed, the Defendant knew a crime was committed, and he "acted with intent to facilitate it." United States v. Petersen, 622 F.3d 196, 208 (3d Cir. 2010) (citation omitted).

1. Count One

Defendants Quinones-Davila, Burgos-Montanez, Gutierrez-Calderon, and Anibal Vega-Arizmendi challenge the sufficiency of evidence supporting Count One, conspiracy to possess with intent to distribute more than five kilograms of cocaine from January 2014 to March 2016. A conviction for conspiracy requires a unity of purpose and intent among the conspirators, along with an agreement to work together. Pressler, 256 F.3d at 147.

Quinones-Davila argues there was insufficient evidence to support his conviction because he and Hodge refused to work together, meaning there were two separate conspiracies-not one, as alleged in the indictment. A conviction must be vacated when the number of conspiracies charged in the indictment and proved at trial differs and the difference "prejudices a substantial right of the defendant." United States v. Kelly, 892 F.2d 255, 258 (3d Cir. 1989). To determine whether a group of individuals was engaged in a single conspiracy or multiple conspiracies, we consider: (1) "whether there was a common goal among the conspirators"; (2) "whether the agreement contemplated bringing to pass a continuous result that [would] not continue without the continuous cooperation of the conspirators"; and (3) "the extent to which the participants overlap in the various dealings." United States v. Kemp, 500 F.3d 257, 287 (3d Cir. 2007) (quoting Kelly, 892 F.2d at 259).

There was sufficient evidence for a rational jury to find a single conspiracy, as there was a common goal to retrieve cocaine in the waters of St. Croix and the success or failure of the operation depended on the constant drug runs. Additionally, Hodge and Quinones-Davila overlapped in their dealings: Hodge told Timothy Schoenbohm-the Government's confidential informant and primary witness at trial-that Quinones-Davila wanted to meet him, and Hodge made a trip to retrieve drugs for Quinones-Davila. Because there was sufficient evidence of a single conspiracy, there was no variance that could have prejudiced Quinones-Davila's substantial rights.

Burgos-Montanez, Gutierrez-Calderon, and Anibal contend there was insufficient evidence to convict them because they were present but were not aware of the illegal activities of the conspiracy. To sustain a conviction for conspiracy with intent to distribute a controlled substance, the government must introduce drug-related evidence from which "a rational trier of fact could logically infer that the defendant knew a controlled substance was involved in the transaction at issue." United States v. Boria, 592 F.3d 476, 481 (3d Cir. 2010). The record shows all three Defendants' participation and knowledge of the conspiracy.

Burgos-Montanez helped bring a heavy fuel tank onto Schoenbohm's boat, the Scorpion, before boarding it himself. Burgos-Montanez was also found on the beach at Knight's Bay near four suitcases containing over 87 kilograms of cocaine, and he fled when police announced themselves. A rational trier of fact could infer Burgos-Montanez knew about the illegality of the conspiracy from the totality of this evidence. See Caraballo-Rodriguez, 726 F.3d at 433 (sufficient evidence of conspiracy where the defendant traveled from Puerto Rico to Philadelphia with only a small bag containing $33 and who transferred suitcases that did not belong to him from the baggage conveyor to a vehicle); United States v. Leon, 739 F.2d 885, 893 &n.19 (3d Cir. 1984) (sufficient evidence of conspiracy where the defendant was present at the crime scene, associated with those involved in criminal enterprise, and fled from the scene when agents announced themselves).

There is also sufficient evidence of Gutierrez-Calderon's involvement and knowledge of the drug trafficking conspiracy. He provided Schoenbohm with a firearm and later asked Schoenbohm if the Scorpion could go out again for a drug run and offered to pay.

Anibal was present in October 2014 when a group discussed retrieving 71 kilograms of cocaine. Anibal was also on the Scorpion for multiple failed retrieval attempts, and for the successful one when he helped get the cocaine onto the boat.

Ultimately, there was sufficient evidence to convict all of the Defendants of Count One.

2. Count Two

Gutierrez-Calderon argues there was insufficient evidence to convict him of aiding and abetting the...