Escolar Documentos
Profissional Documentos
Cultura Documentos
Nos. 11-2160
12-1814
UNITED STATES OF AMERICA,
Appellee,
v.
NORMA SANTOS-SOTO,
CARLOS PLAZA-SANTIAGO,
Defendants, Appellants.
Before
Howard, Chief Judge,
Torruella and Kayatta, Circuit Judges.
Norma
Santos-Soto
("Santos")
and
Carlos
After careful
Background
Factual Background
We recite the facts as the jury could have found them,
In 2007, as
agents,
including
Agent
Jos
Rodrguez-Vzquez
Two
prepared
February
9,
2007,
by
undercover
agent
Gonzlez-Medina's house and Hernndez got out of the car and walked
to the rear side of Gonzlez-Medina's house to do the controlled
-3-
given him the day before hidden in his boot, but he did not tell
this to Rodrguez.
boot and, upon returning to the car, told Rodrguez that GonzlezMedina
had
just
sold
him
those
drugs
on
behalf
of
Aquino.
Rodrguez then took Hernndez home and left with the drugs.
While
this was taking place, Santos and Plaza were together in a police
car in the general vicinity, but they did not see the "transaction"
take place.
Rodrguez's sworn
Aquino
and
Gonzlez-Medina
with
state
drug-related
warrants related to the February incident to Agent Bernie GonzlezVlez ("Gonzlez-Vlez"), who had joined the Arecibo Drug Division
earlier that year. According to Gonzlez-Vlez's trial testimony,3
Santos, Plaza, and two other police agents developed a plan whereby
Gonzlez-Vlez and Rodrguez were to conduct a buy-bust operation.
Pursuant to the plan, Gonzlez-Vlez would go to Aquino's house
with Rodrguez to buy some drugs from Aquino. After paying for the
drugs, Gonzlez-Vlez would execute the arrest warrant issued as a
result of the February complaint.
The officers
then planned to pay Aquino for the cocaine that he had allegedly
sold Hernndez earlier that day, and then arrest him after making
the payment.
Gonzlez-
Vlez then radioed the patrol car where Santos and Plaza were and
informed them that Hernndez did not want to go to Aquino's house
and wanted to be taken home instead.
take Hernndez home, which he did.
tell Plaza that Hernndez had already "purchased" the drugs from
Aquino or that they already had the drugs.
After dropping Hernndez at his house, Rodrguez and
Gonzlez-Vlez arrived at Aquino's house to execute the arrest
warrant.
Rodrguez told him that he was there to pay for the drugs he had
given earlier to Hernndez, but Aquino denied any knowledge of the
drugs. Rodrguez then identified Aquino by taking off his watch -a prearranged signal -- and returned to the car while Aquino went
-6-
back into his house. Gonzlez-Vlez then exited the car and called
Aquino.
Vlez arrested him and searched him, but did not find anything
illegal.
agents who were all together in the same police car and told them
that "the target had been arrested."
about the drugs.
Gonzlez-Vlez then
his.
The
officers
then
searched
house
for
station and left in a holding cell until the next day, when he was
released on bail, which was paid for by Plaza.
There, Gonzlez-Vlez
asked Santos and Plaza what would happen because the drugs had not
been seized from Aquino and the buy-bust had not taken place.
Santos and Plaza instructed Gonzlez-Vlez to tell the district
attorney that he had seized the drugs from Aquino's person.
Gonzlez-Vlez told Santos and Plaza that "the facts didn't occur
like that," to which they responded that "it was Aquino's drugs,
submit the case like that."
and Plaza had instructed.
had a search warrant for Aquino and that when he arrested and
searched him, he seized drugs and money from Aquino.5
In September 2007, in collaboration with the Federal
Bureau of Investigation ("FBI"),6 Gonzlez-Vlez had three recorded
conversations with Santos about the July 5 incident.
In these
conversations, Santos -- unaware that she was being recorded -told Gonzlez-Vlez that he should stick to "the same story" he
previously told the district attorney back in July 2007. GonzlezVlez was unable to record any conversations with Plaza.
Also in
She told
It is unclear from the record how the FBI first became involved
in this case.
-8-
Tobar that on July 5, 2007, she learned from Hernndez that he had
received baggies of cocaine from Aquino, and admitted to Tobar that
she instructed Gonzlez-Vlez to "charge Aquino as if the drugs had
been found in his possession," despite knowing that the drugs had
not been found on Aquino or in his house.
Subpoenaed phone records of Eggy, Tuti, and Plaza for the
months of February, June, July, and September 2007, showed that the
telephone
calls
between
Plaza,
Eggy,
and
Tuti
significantly
the day when Eggy gave Hernndez two ounces of cocaine to plant on
Aquino and Gonzlez-Medina -- the records showed three telephone
calls between Eggy, Tuti, and Plaza. First, Eggy called Tuti, then
Plaza called Tuti, and afterwards Eggy and Tuti had another
telephone conversation.
In the
Between 4:18 pm
and 4:40 pm, the three agents had four telephone conversations.
First, Eggy and Tuti talked, then Plaza called Tuti, and after
speaking with Plaza, Tuti called Eggy.
A similar
pattern was reflected in the records for February 8, the day after
the February incident.
The records also showed that from July 2 to July 6, 2007,
Plaza had seventeen telephone calls with Tuti and Eggy,8 and Plaza
initiated more than forty percent of these calls.9
Six of the
but
also
that
their
telephone
calls
were
relatively
contemporaneous.
immediately
hanging
upon
up
the
phone,
one
of
them
would
one hour before the buy-bust operation was scheduled to begin, Tuti
and Plaza had a telephone conversation at 3:01 pm that lasted for
two minutes.
Ten of these telephone calls were with Tuti, and the remaining
seven were with Eggy.
9
conversation with Plaza, Tuti called Eggy at 7:01 pm. The evidence
reflects the same pattern of contemporaneous calls between the
three of them on the day following the arrest of Aquino, when six
telephone calls were made between Eggy, Tuti, and Plaza within a
time frame of barely eight minutes.10
The telephone records admitted into evidence showed that
the telephone calls between Plaza, Eggy, and Tuti around the
February and July incidents constituted a spike in relation to the
telephone records for the rest of the period examined, which showed
that Plaza barely communicated with Eggy or Tuti by phone.11
10
B. Procedural Background
On October 1, 2007, a grand jury returned a two-count
indictment charging Santos and Plaza, along with others,12 with
(1) conspiracy to injure, oppress, threaten, and intimidate persons
in the town of Arecibo in the exercise of their constitutional
rights
in
violation
of
18
U.S.C.
241
(Count
1),
and
motions
for
acquittal,
which
were
again
denied.
On
October 28, 2010, after a six-day trial, the jury found Santos and
Plaza guilty of both counts.
The district
12
convictions only.
On appeal, Santos and Plaza challenge the sufficiency of
the evidence supporting their convictions on Count 2, and claim
that the district court erred in denying their respective motions
for acquittal.
any evidence that she knew the drugs involved in the February or
July incidents did not come from Gonzlez-Medina or Aquino and,
thus,
there
conspiracy
was
to
no
evidence
possess
with
that
she
intent
to
had
knowledge
distribute
of
the
controlled
-13-
with
intent
to
distribute
controlled
substances
and
that
he
Discussion
United States v.
Acosta, 773 F.3d 298, 310 (1st Cir. 2014) (internal quotation marks
and citations omitted).
separately.
The sum
-14-
Also, in
need
we
be
convinced
that
the
government
succeeded
in
at 311
jury
draws
reasonable.").
from
[it],
although
not
inevitable,
are
marks
omitted)).
Thus,
"defendants
challenging
-15-
appeal."
"we
must
'reject
those
evidentiary
F.3d 367, 371 (1st Cir. 2015) (quoting United States v. Spinney, 65
F.3d 231, 234 (1st Cir. 1995)). "Where the evidence presented does
not support the inference that a defendant had knowledge of the
crime, we have consistently found the evidence insufficient."
Id.
United States v.
Acosta-Coln, 741 F.3d 179, 190 (1st Cir. 2013) (quoting United
States v. Ortiz de Jess, 230 F.3d 1, 5 (1st Cir. 2000)).
"An
-16-
113-14
(1st
Cir.
2002)
("The
jury
may
infer
an
agreement
defendant
drug-trafficking
need
conspiracy
not
know
or
the
co-conspirators to be convicted.
at 5.
the
full
extent
identities
of
of
all
the
the
With that
Santos
-17-
Santos did
She also
-18-
We agree.
The
trial
testimony
revealed
that
Hernndez
never
disclosed that he had gotten the drugs from someone other than
Aquino or Gonzlez-Medina, and the government offered no evidence
from which to infer that Santos knew that the drugs involved in the
February or July incidents came from someone other than Aquino. In
fact, at oral argument the government stated that it could not
point to any evidence demonstrating that Santos did not believe
that Aquino was the real source of the drugs.
As evidence supporting Santos's Count 2 conviction, the
government
points
most
strongly
to
Santos's
encouragement
of
late,
when
she
asked
[Gonzlez-Vlez]
to
lie."
extent
of
conspiracy,
the
identity
of
all
the
-19-
service,
is
designed
to
foster
that
conspiracy.
victims
by
providing
false
evidence
to
the
Commonwealth
-20-
Id.
intent
to
distribute
controlled
substances,
Santos's
Plaza
The record shows that on July 5, 2007, Eggy and Tuti gave
On that
same date, Plaza called Hernndez and instructed him to buy fifty
baggies of cocaine from Aquino. Upon his arrival at Aquino's house
after Gonzlez-Vlez had arrested Aquino, Plaza asked GonzlezVlez for the "bundle" of drugs and, once Gonzlez-Vlez gave him
the drugs, Plaza confronted Aquino stating, "This is yours."
Some
not
been
seized
from
Aquino's
person,
Plaza
instructed
The trial
-21-
He alleges
that the fact that he instructed Hernndez to buy from Aquino the
exact amount of cocaine provided by Eggy and Tuti is not indicative
that he was part of the drug conspiracy.
the telephone calls between him, Eggy, and Tuti were unrelated to
the alleged conspiracy, as they all worked together, knew each
other for years and communicated frequently for business and
personal reasons. Plaza further argues that the testimony from his
two witnesses contradicts the testimony of one of the government's
main witnesses.
and
See
intended
to
Mena-Robles,
commit
4
F.3d
the
at
underlying
1031
substantive
(articulating
the
-22-
incidents.
evidence
isolation,
for
individual
pieces
of
evidence,
that on the days before, of, and after the two incidents, Plaza was
in constant communication with Eggy and Tuti via their personal
telephones, and that Plaza initiated a significant amount of these
calls.
within the Puerto Rico Police -- the Arecibo Illegal Weapons Unit
-- and they were not involved in the planned buy-bust operation
that was being conducted by the Arecibo Drug Division.
Not only
were Plaza's telephone calls with Eggy and Tuti constant during
those days, but the telephone calls between the three of them were
also relatively contemporaneous, with many times two of the agents
finishing a conversation and immediately calling the third agent.
The evidence also showed that Plaza otherwise rarely had telephone
conversations with either Tuti or Eggy, and that the records only
showed a spike in calls between them around the two incidents.
Furthermore, there was evidence that on the day of the planned buybust operation, all communications related to the operation were
made over a dedicated police radio frequency and not over the
agents' personal telephones. In addition, the evidence showed that
-23-
14
years
as
coworkers
and
thus
the
three
of
them
frequently
to
Plaza's
assertions,
the
government
did
all telephone calls to and from their telephones for the entire
months of February, June, July, and September 2007.
A review of
15
we
insufficient
decline
to
Plaza's
support
his
invitation
to
conviction
find
the
because
the
When we assess
773
F.3d
at
310-11;
see
also
See Trinidad-
United
States
v.
-26-
the jury verdict is the evidence that was submitted for its
consideration, we do not consider the magnitude of additional
evidence that could have been presented in determining whether the
evidence that was actually submitted was sufficient to convict the
defendant.
Nor
do
we
take
into
consideration
that
certain
U.S. 683, 693 (1974) (noting that "Executive Branch has exclusive
authority and absolute discretion to decide whether to prosecute a
case").
submit
the
case
to
the
local
district
attorney,
is
17
affirmed.
III.
Conclusion
Thus, Santos's
which
attributed
included
acts
specifically
to
Plaza,
was
-28-