United States v. Flores-Rivera

787 F.3d 1

UNITED STATES of America, Appellee

v.Sonia N. FLORES–RIVERA, a/k/a Mimi; Sandra I. Flores–Rivera, a/k/a Sandy; Carlos Omar Bermúdez–Torres, a/k/a Omar Moreno–Espada; Cruz Roberto Ramos–González, a/k/a La R, a/k/a El Gordo, a/k/a El Galán, a/k/a Robert Belleza, a/k/a Crucito, Defendants, Appellants.

Nos. 10–1434

11–1416

12–1538

12–1711.

United States Court of Appeals, First Circuit.

May 22, 2015.

Linda Backiel, for appellants Sonia N. Flores–Rivera and Cruz Roberto Ramos–González.

H. Manuel Hernández, for appellant Sandra I. Flores–Rivera. Rafael F. Castro Lang, for appellant Carlos Omar Bermúdez–Torres.

Dina Ávila–Jiménez, Assistant United States Attorney, with whom Rosa Emilia Rodríguez–Vélez, United States Attorney, Nelson Pérez–Sosa, Assistant United States Attorney, Chief, Appellate Division, and Juan Carlos Reyes Ramos, Assistant United States Attorney, were on brief, for appellee.

Before TORRUELLA, THOMPSON, and KAYATTA, Circuit Judges.

Opinion

KAYATTA, Circuit Judge.

These consolidated appeals arise from a multi-count indictment alleging that the four appellants—Sonia Flores–Rivera (“Sonia”), Sandra Flores–Rivera (“Sandra”), Carlos Omar Bermúdez–Torres (“Omar”), Cruz Roberto Ramos–González (“Ramos”)—and their forty-three co-defendants¹ participated in a far-reaching drug trafficking conspiracy throughout various parts of eastern Puerto Rico. Following their joint trial, the appellants were convicted and sentenced to prison terms ranging from 151 months to life. They assign error to many facets of their trial, sentencing, and post-trial proceedings.

Ramos and Omar contend that the district court erred in denying their motions for a new trial based on the prosecution's failure to disclose material evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). We agree that, cumulatively, the withheld evidence had a “reasonable probability” of changing the result for those two appellants. See United States v. González–González, 258 F.3d 16, 20 (1st Cir.2001). We therefore remand their cases to the district court for a new trial. Sonia and Sandra press no Brady claims on appeal. Finding no reversible error arising from the claims that they do bring, we affirm their convictions and sentences.

I. Background

A. The Charged Conspiracy

A grand jury indicted the appellants and their co-defendants on August 2, 2007, on charges of conspiring to distribute, and aiding and abetting the distribution of, cocaine, crack-cocaine, heroin, and marijuana within 1,000 feet of a public housing project or a public school, see 21 U.S.C. §§ 841(a)(1), 846, 860 and 18 U.S.C. § 2 (counts one and three through six), in addition to possessing firearms in furtherance of those crimes, see 18 U.S.C. § 924(c)(1)(A) and (o ) (count two).² On February 5, 2008, the grand jury returned a superseding indictment bringing additional charges against Ramos and five other defendants for bribing and tampering with a government witness (counts seven through nine) in violation of 18 U.S.C. § 1512(b)(1) and (k) ; id. § 201(b)(3); and id. § 2 (hereinafter “the witness tampering counts”). Prior to trial, the district court granted the prosecution's motion to dismiss the witness tampering counts without prejudice so that those charges could be tried separately.

B. The Evidence

In considering a challenge to the sufficiency of the evidence following a trial by jury, we typically recite the relevant facts in the light most favorable to the jury's verdict. See United States v. Bayes, 210 F.3d 64, 65–66 (1st Cir.2000). Conversely, our precedent manifests a lack of consensus on how to present the record when a challenge is lodged to other issues, such as claims of prejudicial error. See United States v. Burgos–Montes, No. 13–2305, 786 F.3d 92, 98–99 & n. 1, 2015 WL 2223304 at *1 & n.1 (1st Cir. May 13, 2015).

Given that we cannot simultaneously recite the facts in more than one manner, we first provide a more or less neutral summary of the key relevant evidence presented at trial. In our subsequent analysis of each issue we adopt a Rashomon-like approach to our view of the evidence depending on the precise question posed by the applicable principles of substantive law. For example, if a prosecution witness plausibly says “X” and a witness favorable to the defense plausibly claims “not X,” we may initially recite both but, in considering the sufficiency challenge, we assume “X” to be correct. Conversely, on the Brady challenges, the key question posed is whether the unproduced evidence “could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” United States v. Avilés–Colón, 536 F.3d 1, 19 (1st Cir.2008) (internal quotation marks omitted). Answering this question requires that “[w]e evaluate the strength of the impeachment evidence and the effect of its suppression in the context of the entire record.” Id. (alteration in original) (internal quotation marks omitted). Thus, in the hypothetical example posed above, and with omitted evidence in the form of documents calling into question the credibility of the prosecution witness, we do not assume “X” to be correct; rather, we consider the evidence as a whole to gauge the impact that the documents would likely have had on the jury in weighing the evidence.

The appellants were tried before a jury in October and November of 2009. The prosecution's witnesses told of a wide-ranging conspiracy led by Ramos and staffed by his cadre of “lieutenants” (including Omar), “sellers” (including Sandra), and “runners” (including Sonia).

The prosecution's star witness was Harry Smith Delgado Cañuelas (“Delgado”). Upon his release from prison in 2004, Delgado moved to the Victor Berríos Public Housing Project (“Victor Berríos”) in Yabucoa, Puerto Rico. He testified that brothers Alex and Ramiro Nazario controlled heroin sales at Victor Berríos in 2004, whereas Ramos controlled crack, cocaine, and marijuana distribution. Delgado said that, while working for the Nazario brothers, he learned where Ramos's organization hid its drug inventory, and he stole a large packet (a “muerto”) of Ramos's drugs. Ramos, he said, suspected him of taking the “muerto,” and hired Delgado with the intent to later kill him after Ramos purchased control of the heroin drug point from the Nazario brothers in 2005. But after seeing how effectively Delgado was “building up” heroin sales under Omar's supervision, Ramos decided Delgado was more valuable to him alive than dead.

Delgado explained that his role as a lead administrator at Victor Berríos gave him an insider's view of the organization's leadership. Omar and two other defendants acted as “order sergeants” in carrying out Ramos's commands whenever a problem arose at a Ramos-owned drug point. Delgado also recounted how Ramos kept tabs on competitors who sought to establish other drug points near Victor Berríos.

Delgado's additional role as a seller provided insight into the organization's day-to-day operations as well. He testified that Sonia was a “runner” for the Victor Berríos drug point. When a seller's supply ran low, Sonia would fetch drugs from Ramos's inventory and deliver them to the seller. After another individual finished tallying drug sales, Sonia stashed away the proceeds until one of Ramos's lieutenants picked up the money. Sandra, meanwhile, served as both a runner and a seller of cocaine, crack, and marijuana. Two other cooperating witnesses, whose testimony is described below, painted a similar picture of Sandra's role.

Delgado claimed that his employment with Ramos's organization continued until 2007, when he was arrested for attempted murder in Yabucoa. Delgado soon thereafter began cooperating with the government.

Xiomara Berríos–Rojas (“Xiomara”) was the government's second cooperating witness who claimed to have been a member of the conspiracy. Xiomara testified that she began working for Ramos's organization at Victor Berríos in or around 2004, selling marijuana, crack, and cocaine. She testified that certain notebooks, seized by the police from an apartment belonging to one of Ramos's lead bookkeepers at Victor Berríos, included “tallies” reflecting the accounting of drug sales. Xiomara also testified that a video depicting Sandra at Victor Berríos showed her dispensing crack, although no drugs were visible in the footage. And she agreed with Delgado's testimony that Sonia was a “runner” for Ramos.

The third cooperating witness to testify was Andy Marcano (“Andy”). Andy, like Xiomara, was a “runner.” He delivered heroin and other drugs to various drug points, including Victor Berríos. Andy said that he also accompanied Ramos and his lieutenants when it became necessary to threaten competitors or discipline the organization's members.

Andy explained that Omar cooked heroin for the organization and acted as one of Ramos's lieutenants. After preparing the heroin, Omar gave it to Andy or another runner, who then delivered it to sellers such as Delgado.

Central to the defendants' (in particular, Ramos's) trial strategy was an attempt to impeach Delgado, Xiomara, and Andy by suggesting that they engaged in a coordinated effort to fabricate their testimony. Leading up to the trial, the three witnesses were housed in a unit for cooperators within the Metropolitan Detention Center (MDC) in Guaynabo, Puerto Rico. Within the cooperators' unit, the men were located in section 4–C (“4–Charlie”), and Xiomara resided in section 3–C, “right below” 4–Charlie. Xiomara admitted it was possible for the cooperators to talk to prisoners in other cells through the plumbing system by removing water from each cell's toilet bowl.

On the stand, all three witnesses admitted speaking to each other at MDC, but they flatly and firmly denied discussing anything involving the instant case. Asked by Ramos's counsel whether he discussed the case with Andy, Delgado responded: “No ..., from the beginning when I arrived [at 4–Charlie] in ...