United States v. Laureano-Pérez

797 F.3d 45

UNITED STATES of America, Appellee

v.Juan M. LAUREANO–PÉREZ, Jeffrey John Cummings-Ávila, and Christopher L. Laureano–Pérez, Defendants, Appellants.

Nos. 13–2224

13–2276

13–2284.

United States Court of Appeals, First Circuit.

July 30, 2015.

Lydia Lizarríbar–Masini, for appellant Juan M. Laureano–Pérez.

Karen A. Pickett, with whom Pickett Law Offices, P.C. was on brief, for appellant Jeffrey John Cummings-Ávila.

Jeremy Gutman, with whom Todd M. Merer, were on brief, for appellant Christopher L. Laureano–Pérez.

Sonja M. Ralston, Attorney, Appellate Section, Criminal Division, U.S. Department of Justice, with whom Leslie R. Caldwell, Assistant Attorney General, Sung–Hee Suh, Deputy Assistant Attorney General, Rosa Emilia Rodríguez–Vélez, United States Attorney, and Nelson Pérez–Sosa, Assistant United States Attorney, Appellate Chief, were on brief, for appellee.

Before TORRUELLA, LYNCH, and BARRON, Circuit Judges.

Opinion

TORRUELLA, Circuit Judge.

Defendants Juan Laureano–Pérez (“Juan”), Jeffrey Cummings-Ávila (“Cummings”), and Christopher Laureano–Pérez (“Christopher”)¹ (collectively, “Defendants”) were convicted of various narcotics possession, firearm, and conspiracy charges arising out of their participation in an illicit drug organization. All three appeal their convictions, alleging a host of errors during the pretrial and trial phases of the proceedings; Cummings and Christopher also challenge their sentences. For the reasons explained below, we affirm all of the convictions, as well as Cummings's sentence. However, we vacate Christopher's sentence and remand for re-sentencing.

I. Background

We begin with a general overview of the facts and prior proceedings, reserving additional factual and procedural details for the relevant discussions below. For present purposes, it is enough to know that Defendants were members of a large drug organization operating in the Residencial Villas de Monterrey public housing project in Bayamón, Puerto Rico (the “Housing Project”) which sold a wide array of narcotics, including heroin, cocaine base (“crack” cocaine), powder cocaine, and marijuana. Additionally, Defendants had different roles in the conspiracy. Christopher was the leader of the organization. Known as both “Negro” and “the boss,” he owned the majority of the drugs sold in the Housing Project, and, wanting the organization's pushers and runners to be armed, he also supplied the organization with weapons. Juan, meanwhile, was Christopher's brother and known as “McGyver.” Juan's role was an enforcer. Finally, Cummings, or “Pitillo,” was an enforcer as well, though he would also deliver drugs on occasion. Both Juan and Cummings were known to carry .40 caliber pistols.

Cummings was initially indicted on May 30, 2012, and was charged with: possession with intent to distribute heroin, cocaine base (“crack” cocaine), and cocaine, each in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(c), 860 (Counts One through Three, respectively); possession with intent to distribute marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(D), 860 (Count Four); illegal possession of a machinegun, in violation of 18 U.S.C. §§ 922(o ), 924(a)(2) (Count Five); and possession of firearms in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i), (B)(ii) (Count Six). Six months later, on November 28, 2012, a superseding indictment was returned. This superseding indictment retained the initial six charges from the May indictment but also added two more: conspiracy to possess with intent to distribute controlled substances in a protected location, in violation of 21 U.S.C. §§ 841(a)(1), 846, 860 (Count Seven), and conspiracy to possess firearms in furtherance of a drug trafficking conspiracy, in violation of 18 U.S.C. § 924(c)(1), (o ) (Count Nine). It also brought charges against Christopher, Juan, and forty-one other co-conspirators.² Christopher and Juan were both charged with the two conspiracy counts (Counts Seven and Nine), while Juan was also charged with possession of a firearm in furtherance of a drug conspiracy, in violation of 18 U.S.C. § 924(c)(1)(A)(i), (B)(ii) (Count Eight).

Trial began on June 5, 2013, and after eight days of trial, Defendants were convicted on all counts. Juan and Christopher were subsequently sentenced to life imprisonment, while Cummings was sentenced to 480 months. These timely appeals followed.

II. Pre–Trial Issues

Only Cummings raises pre-trial issues, and he does so both through his attorney and through a supplemental pro se filing. We address each in turn.

A. The Disqualification of Cummings's Counsel

Cummings first argues that the district court violated his constitutional right to counsel both when it ordered the disqualification of his attorney, Jorge Armenteros–Chervoni (“Armenteros”), due to a conflict of interest and when it later refused to re-appoint Armenteros despite Cummings's attempt to waive the conflict. “We review decisions to disqualify an attorney for conflict of interest for abuse of discretion.” United States v. Lanoue, 137 F.3d 656, 663 (1st Cir.1998). Here, we find no such abuse.

1. Relevant Facts

On June 5, 2012, the district court granted Cummings's motion to be represented by Armenteros instead of a court-appointed attorney from the Office of the Federal Defender. A month later, the government became concerned over the source of Armenteros's attorney fees, so it filed a motion asking the court to determine: (1) the source of Armenteros's attorney fees; (2) whether Armenteros was retained or paid by an individual other than Cummings; (3) whether there was a conflict of interest; and (4) if there was a conflict, whether Cummings was waiving the conflict and whether the district court would accept the waiver. At a status conference on July 26, 2012, the district court set a briefing schedule and hearing date for the issue.

Though the government never filed its formal motion, the district court held the hearing on August 14. At the hearing, Armenteros objected, arguing that the hearing was “premature ... because I don't know what is the issue or what is the intent.” The district court disagreed, stating that the parties were there “to figure out the issue.” The government then informed the court that it had met with Armenteros and that the government had “showed him recordings of his defendant, which proved that ... Attorney Armenteros [ ] was retained by another person who is not the defendant in this case.” The government added that Armenteros “did not deny” that he was being paid by another person. In response to this proffer, the district court asked Armenteros about the source of his fees, but Armenteros refused to answer. Instead, Armenteros responded:

[W]ith all due respect we're going to claim a due process right now, Your Honor, because I don't think that the hearing can come to find out what was going on. I think the prosecutor must make a claim, and we must respond to it.... I'm telling you that I am not clear what is the claim to which I have to respond

....

The district court once again explained that the claim was that Cummings was not paying his own attorney fees but rather that they were coming from a third party. To this, Armenteros replied that “that's not the information that I have been given.” He went on to explain that he had received a $5,000 initial payment and that his relationship with Cummings “date[d] back to another case” in which he defended Cummings and was successful in having the case dismissed. Armenteros conceded that he had heard one of the recordings involving Cummings but nevertheless maintained that “the only person that I talked to is [Cummings] who told me, go and look for some money, okay, in order to get my fees.”

At this point, the government interjected, explaining that it was “trying to protect ... the right of the defendant” because it would create a “clear conflict of interest” if the person paying Armenteros's fees were someone who the government might require Cummings to testify against should he enter a plea. The district court agreed, noting to Armenteros that

[i]f it's true that there is a possibility that a third party is paying for your client's defense, and your client is in a situation whereby he's facing a 30–year minimum, the Government is not going to offer any plea bargaining to him, it is entirely possible that the purpose, that the purpose of somebody else paying for the defense is to keep him shut.

Armenteros once again objected, arguing that he “underst[oo]d that those funds came from the defendant” and that the government's position “presupposes ... that that [third] person told me to go defend this person.” Armenteros argued that “that has never been the case” and “[i]n fact, there are a million phone calls of Mr. Cummings'[s] wife asking me to go and visit him once after he's arrested.” Armenteros emphasized that he could recognize a conflict of interest and was positive that no conflict existed.

The court then proceeded to hear the two telephone recordings of Cummings with counsel for both the government and Cummings present. In the first, Cummings spoke to Ana Saurí, Cummings's girlfriend's mother, and told her that his lawyer had come to visit him and that “they paid him the money.” Saurí added that she spoke with Armenteros and asked him to get someone she called “Negrito” out of jail, to which Armenteros responded, “Don't mention that name.” Cummings also informed Saurí that Armenteros had told him that if “they work with me on the money and stuff ... what I ask them in order to help you, then I will come on Monday.” Later on in the call, Christopher, who had not yet been indicted, took the phone from Saurí and spoke with Cummings. Cummings thanked Christopher “a million for the attorney thing” and added that Armenteros had told him that “[t]hey gave [Armenteros] 10” and that Cummings could give Armenteros “the other 10 ... when you get out.” Christopher also stated that he “was going to see if...