United States v. Lugo Díaz

80 F.Supp.3d 341

UNITED STATES of America, Plaintiff(s)

v.Dean LUGO DÍAZ [54], also known as Bolon, Defendant(s).

Criminal No. 12–414[54]DRD.

United States District Court, D. Puerto Rico.

Signed Jan. 22, 2015.

Alberto R. Lopez–Rocafort, U.S. Attorney's Office, San Juan, PR, for Plaintiff(s).

OPINION AND ORDER

DANIEL R. DOMÍNGUEZ, District Judge.

Pending before the Court are: (a) Rule 29(c)(2) Motion to Set Aside Verdict and Enter Judgment of Acquittal filed by defendant Dean Lugo Díaz [54] (“Lugo Díaz”), Docket No. 2147; and (b) United States of America's Response in Opposition to Defendant's Motion for Judgment of Acquittal Pursuant to Rule 29 of the Federal Rules of Criminal Procedure, Docket No. 2184. For the reasons set forth below, the defendant motion for acquittal is denied.

Factual and Procedural Background

On or about May 24, 2012, the Grand Jury returned an Indictment against defendant Lugo Díaz, and 73 other individuals charged with several counts for “knowingly and intentionally, combine, conspire, and agree with each other and with diverse other persons known and unknown to the Grand Jury, to commit an offense against the United States, that is, to knowingly and intentionally possess with intent to distribute and/or to distribute controlled substances, to wit: in excess of two hundred and eighty (280) grams of cocaine base (crack), a Schedule II Narcotic Drug Controlled Substance; in excess of one (1) kilogram of heroin, a Schedule I, Narcotic Drug Controlled Substance; in excess of five (5) kilograms of cocaine, a Schedule II, Narcotic Drug Controlled Substance; in excess of one hundred (100) kilograms of marijuana, a Schedule I, Controlled Substance; within one thousand (1,000) feet of the real property comprising housing facilities owned by a public housing authority, to wit: El Coral, Lagos de Blasina and El Faro Public Housing Projects.”See Docket No. 3, pages 7–8, and 21 U.S.C. §§ 841(a)(1), 846 and 860.

Although the Indictment is silent as to the date of the commencement of the conspiracy, it is certain that it was “no later than in or about the year 2004, and continuing to and until the return of the instant Indictment, in the Municipality of Carolina, District of Puerto Rico.” Id., pages 5–6. “The object of the conspiracy was to distribute controlled substances at El Coral, Lagos de Blasina and El Faro Public Housing Projects, Villa Justicia Ward and in other areas within the Municipality of Carolina, Puerto Rico, all for significant financial gain and profit.” See Docket No. 3, page 8.

It was part of the conspiracy that the leaders “would purchase wholesale quantities of heroin, cocaine and marijuana in order to distribute the same in street quantity amounts at their drug distribution points located in El Coral, Lagos de Blasina and El Faro Public Housing Projects, Villa Justicia Ward and other areas within the Municipality of Carolina, Puerto Rico.” See Docket No. 3, page 8. The conspiracy was managed by the leaders who “would maintain a group of co-defendants administrating the daily activities of the drug distribution point.” Id. “The defendants and their coconspirators would act in different roles in order to further the goals of the conspiracy, to wit: leaders and drug point owners who directed and supervised runners, enforcers, sellers, drug processors, lookouts, and facilitators.” Id. “At various times during the course of the conspiracy, leaders purchased firearms and allowed members of the conspiracy to carry such firearms and ammunition in order to protect the drug distribution activities.” See Docket No. 3, page 12. Defendant Lugo Díaz was identified in the Indictment as a seller for the drug trafficking organization. Id., pages 18 and 20.

As stated above, defendant Lugo Díaz was indicted on May 24, 2012, on Counts One through Five, which involve several violations, to wit:

(a) Count One, being a member of a conspiracy with the intention to knowingly possess and distribute and/or distribute controlled substances in excess of two hundred eighty (280) grams of cocaine base (crack), a Schedule II, Narcotic Drug Controlled Substance; in excess of one (1) kilogram of heroin, a Schedule I, Narcotic Drug Controlled Substance; in excess of five (5) kilograms of cocaine, a Schedule II, Narcotic Drug Controlled Substance; in excess of one hundred (100) kilograms of marijuana, a Schedule I, Controlled Substance; within one thousand (1,000) feet of real property comprising public housing facilities;”¹ 21 U.S.C. §§ 841(a)(1) ; 846; 860, see Indictment, Docket No. 3, pages 5–22;

(b) Count Two, possession with intent to distribute “one (1) kilogram or more of a mixture or substance containing a detectable amount of heroin, a Schedule I Narcotics Drug Controlled Substance, within one thousand (1,000) feet” of a public housing facility owned by a public housing authority, see Indictment, Docket No. 3, pages 22–24;”

(c) Count Three, aiding and abetting in the possession and distribution of “two hundred and eighty (280) grams or more of a mixture or substance containing a detectable amount of cocaine base (Crack), a Schedule II Narcotic Drug Controlled Substance, within 1,000 feet of the real property comprising a public housing facility owned by a public housing authority;” 21 U.S.C. §§ 841(a)(1), and 860 ; 18 U.S.C. § 2, see Indictment, Docket No. 3, pages 24–26;

(d) Count Four, aiding and abetting with the intention to possess and distribute “five (5) kilograms or more of a mixture or substance containing a detectable amount of cocaine, a Schedule II Narcotic Drug Controlled Substance, within 1,000 feet of the real property comprising a public housing facility owned by a public housing authority;” 21 U.S.C. §§ 841(a)(1), and 860 ; 18 U.S.C. § 2, see Indictment, Docket No. 3, pages 26–28;

(e) Count Five, aiding and abetting in the possession and with the intent to distribute one hundred (100) kilogram or more of a mixture or substance containing a detectable amount of marijuana, a Schedule I Controlled Substance, within one thousand (1,000) feet of the real property comprising a public housing facility owned by a public housing authority;” 21 U.S.C. §§ 841(a)(1), and 860 ; 18 U.S.C. § 2. (Emphasis ours). See Indictment, Docket No. 3, pages 28–30.

A jury trial was held from July 7 to 17, 2014, that is, eight days. On July 17, 2014, defendant Lugo Díaz was found guilty by a jury on Counts One, Three, Four and Five. See Jury Verdict Form, Docket No. 2119. On July 21, 2014, defendant Lugo Díaz moved the Court for an extension of time to file a motion under Rule 29 of the Federal Rules of Criminal Procedure (“Rule 29 ”), and the same was granted. See Docket entries No. 2122, 2125. On August 8, 2014, defendant Lugo Díaz timely filed a Rule 29(c)(2) Motion to Set Aside Verdict and Enter Judgment of Acquittal, Docket No. 2147, challenging the verdict rendered by the jury and moving the Court for a judgment of acquittal on all counts, for lack of evidence.

In his motion, the defendant alleges that “[t]here is absolutely no evidence that the defendant had any knowledge or joined any conspiracy in any other different housing project.” See Docket No. 2147, page 2. Defendant cited, in support of his argument, several parts of the testimony of defendant Zeus Cordero Alvarez [25], a cooperating witness, who testified on July 10, 2014 during trial. Id. Defendant further argues that the Government failed to show that he “had the intention to join the conspiracy alleged in the Indictment.” Id., page 6. “The evidence did show there were different kind of drugs sold in different housing projects making them different conspiracies.” Id. “Mr. Lugo Díaz, never participated in the other different conspiracies charged in the Indictment.” Id. “Another aspect of the case is the existence of multiple conspiracies and the attempt of the Government to include Mr. Lugo Díaz in the same.” Id. “During trial evidence [sic] of multiple conspiracies were presented and the knowledge participation of Mr. Zeus Cordero Alvarez and Mr. Balu were totally different as the one of Mr. Dean Lugo Díaz.” Id., page 7. “The evidence connecting the defendant to a conspiracy was different to the one charged in the indictment.” Id. “As to the conspiracy charge the evidence was insufficient viewing the evidence in the light most favorable to the verdict.” Id., pages 7–8. Defendant further alleges that, notwithstanding that “Mr. Oppenheimer is a common key figure connecting the conspiracies that fact in itself does not necessarily makes several different conspiracies in unifying them in just the one conspiracy charged in the indictment.” Id., citing Kotteakos v. United States, 328 U.S. 750, 772, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946).

On September 9, 2014, the Government filed its Response in Opposition to Defendant's Motion for Judgment of Acquittal Pursuant to Rule 29 of the Federal Rules of Criminal Procedure, Docket No. 2184, moving the Court to deny defendant's motion for acquittal, on the following grounds:

(a) “[T]he evidence adduced at trial was sufficient to prove that the defendant knowingly and intentionally joined a single overarching drug conspiracy.” See Docket No. 2184, page 4. “The object of the conspiracy was to distribute controlled substances for profit at three public housing projects located in Carolina, Puerto Rico.” Id. “The conspiracy involved numerous members, each having a distinctive role, and one leader, co-defendant [1] David Oppenheimer.” Id. “The trial testimony demonstrated that the defendant, trial co-defendant [12] Abraham Walker–Couvertier, and other co-defendants named in the indictment had the “common goal” of distributing Oppenheimer's narcotics at these public housing projects.” Id.

(b) “[T]he testimony of Zuleyka and Zeus demonstrated that the ‘common goal’ of the conspiracy was to distribute controlled substances at these three public housing projects.” See Docket No. 2184, page 6. “The testimony further proved that

...