[Copyrighted Material Omitted]
José Luis Novas Debien for appellant Pabellón Rodríguez.
Michael C. Bourbeau, with whom Bourbeau & Bonilla, LLP, was on brief, for appellant Carrasquillo-Rodríguez.
Justin Reid Martin, Assistant United States Attorney, with whom
Rosa Emilia Rodríguez-Veléz, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Julia M. Meconiates, Assistant United States Attorney, were on brief, for appellee.
Before LYNCH, Chief Judge, TORRUELLA and LIPEZ, Circuit Judges.
LIPEZ, Circuit Judge.
Appellants Jimmy Carrasquillo-Rodríguez (" Carrasquillo" ) and Jesús Pabellón Rodríguez (" Pabellón" ) were convicted on drug and gun charges that arose from a reverse sting operation orchestrated by federal Drug Enforcement Administration (" DEA" ) agents seeking to stem the flow of illegal narcotics from the Dominican Republic to Puerto Rico. Both defendants challenge their convictions, primarily on sufficiency grounds. They also claim that an error in the verdict form requires a new trial. Carrasquillo also challenges his sentence.
The government concedes that Carrasquillo's conviction on count four (possession of a firearm with an obliterated serial number) must be vacated for insufficient evidence. With that exception, we affirm the convictions and Carrasquillo's sentence. The evidence was sufficient to support the convictions. The error in the verdict form, though obvious, does not meet the stringent requirements of plain error.
The facts, as supported by the record, are as follows. In December 2008, the DEA created a fictional drug trafficking organization in order to target groups engaged in international drug trafficking operations. The group consisted of three individuals: an informant from Colombia, an informant from the Dominican Republic known as " Cibaíto," and DEA Task Force Officer Jesú s Marrero. Marrero and Cibaíto played the parts of underlings for the Colombian informant, portrayed as the boss of the organization. The group began giving Marrero's phone number to individuals involved in the illegal drug trade, advertising him as a drug distributor who received shipments from the Dominican Republic.
The group's marketing quickly paid off. On December 11, 2008, Marrero and Cibaíto met with Ramón González Duarte (" González" ), a/k/a " Gigante," at a restaurant in Santo Domingo. González indicated that he wanted to purchase ninety kilograms of pure cocaine from the fictional organization, and that he wanted Marrero to transport to Puerto Rico an additional sixty kilograms of cocaine that he would be purchasing from another source. González said that he worked for a man named Cagüitas, and that they had the capacity to distribute over 500 kilograms of cocaine per week, as Cagüitas controlled the drug traffic in Caguas, Puerto Rico and the surrounding towns, and also shipped substantial amounts to the continental United States, particularly New York.
Marrero was to deliver the ninety kilograms to González's cohort in Puerto Rico at a cost of $15,000 per kilo, plus a $2,000 transportation fee. He also agreed to transport González's independently purchased sixty kilograms, charging the same transportation fee of $2,000 per kilo. Marrero told González that he needed to know who would be picking up the shipment in Puerto Rico and paying him for the shipment. González stated: " I will call the person who is going to take care of you when you arrive in Puerto Rico. He's my son, so I trust him." He then picked up the phone, dialed a number, and placed the phone on speakerphone. The call was answered
by a man identifying himself as " Hijo de Gigante," or " Son of Gigante," who was later identified as Carrasquillo. (Carrasquillo is González's stepson.) At some point during the call, Carrasquillo handed the phone to Cagüitas, who stated that Carrasquillo would be the individual in charge of receiving the cocaine and making the payment to Marrero.
Despite their tentative agreement, Marrero never received the sixty kilograms that González had asked him to transport to Puerto Rico. On December 15, Marrero called Carrasquillo to inform him that he had returned from the Dominican Republic. Using coded language, Carrasquillo asked Marrero if he had received the drug cargo and was ready to exchange the drugs for money. The next day, Marrero called Cagüitas, who told him that he would be sending Carrasquillo to exchange cash for the drugs. Cagüitas put Carrasquillo on the phone, who told Marrero to meet him at the kiosks in Luquillo later that day.
When Marrero arrived at the kiosk, he met Carrasquillo and Carrasquillo's driver, Jiel Sánchez. Because Marrero had taken longer than Carrasquillo and his compatriots had expected, the unidentified people to whom Carrasquillo's organization was to sell the drugs were no longer willing to front the money, and would pay only upon seeing the drugs. Carrasquillo asked for a credit, meaning that Marrero would hand over the shipment for nothing, with Carrasquillo paying him back later with the proceeds of his sale to other parties. Carrasquillo's organization negotiated with Cibaíto (the informant in the Dominican Republic), whereby the drugs would be extended to the organization on a credit. The " guarantee" was González himself: he was to stay at Cibaíto's house in the Dominican Republic until the payment for the ninety kilos was delivered.
Marrero, however, would not accept a credit for the transportation costs associated with the drugs. As Marrero had told them that the drugs cost $2,000 per kilo to ship, Carrasquillo would have to come up with $180,000 before he received the ninety kilos. Because of Carrasquillo's cash flow problems, the parties agreed that Marrero would give Carrasquillo the drugs in a series of smaller transactions. He would hand off the first thirty kilos to Carrasquillo for the transportation cost of $60,000. Carrasquillo would then sell the drugs, returning a few hours later to give Marrero another $60,000 for a second thirty kilo bale. Only sixty kilos were to be transferred pursuant to this arrangement. The parties agreed that this transaction would take place the next day, December 17, at a kiosk in Luquillo.
Marrero arrived at the kiosk and sat down at a table. Shortly thereafter, Jiel Sánchez arrived with an individual unknown to Marrero, later identified as Pabellón. Pabellón is Carrasquillo's brother and González's stepson. Without greeting Marrero, Sánchez and Pabellón looked around the kiosk, went to the counter, ordered a beer, went to the door of the bathroom, and then left quickly. Upon exiting, the pair surveilled the parking lot in the back and side of the establishment. Apparently satisfied that the coast was clear, one of them placed a call. Carrasquillo arrived about eight minutes later.
Carrasquillo and Marrero had a conversation, during which Carrasquillo said that the money was on its way and repeatedly demanded that Marrero show him the drugs. Marrero told him that until he saw the money, Carrasquillo would not see the drugs. After making a few phone calls, Carrasquillo told Marrero that the money was at another kiosk, and asked Marrero to accompany him there. Because there was no surveillance at the second kiosk,
Marrero refused, stating that the drugs were close by and he did not want to be separated from them. With both parties refusing to budge, Marrero terminated the meeting.
The next day, December 18, with the deal still uncompleted, Marrero called González to complain. Marrero objected to being surveilled by Sánchez and Pabellón, and generally objected to the presence of anyone but Carrasquillo at the meetings. González explained that the group was nervous because they had seen a car parked at the kiosk with people inside. Marrero and González both expressed suspicion as to the other's credentials in the drug trade, with González noting that no one in the Dominican Republic appeared to have heard of Marrero.
Later that same day, Marrero spoke to González's boss, Cagüitas. Marrero and Cagüitas agreed that Carrasquillo would meet Marrero in the parking lot of the Metropol restaurant in Fajardo later that day. Marrero insisted that Carrasquillo come alone. Before Marrero arrived at the restaurant, a DEA task force agent observed a blue Toyota pull into the parking lot, followed by a black Honda. The agent recognized the Honda: it was the same car that Sánchez and Pabellón had driven to the kiosk the day before. Marrero arrived and made his way to the Toyota, which Carrasquillo had driven to the meeting. Marrero asked Carrasquillo where the money was, and Carrasquillo removed a plastic bag containing $59,000 from underneath the driver's seat. After briefly examining the contents, Marrero called his surveillance to give the signal for the arrest.
After receiving Marrero's signal, DEA Task Force Agent Edwin Colón-García and two other officers moved in and arrested Carrasquillo. Meanwhile, Agent Jimmy Alverio-Hernández parked his vehicle in front of the black Honda and moved around to the Honda's front passenger side door, where he observed what appeared to be a weapon under a blue rag on the floor of the front passenger seat. After alerting his fellow officers about the gun, the agent ordered the passenger of the Honda, later identified as Pabellón, out of the car and placed him under arrest. Agents also arrested the driver of the Honda, Jiel Sánchez. The weapon on the floor of the front passenger seat was determined to be a .45 caliber Ruger pistol with an obliterated serial number.
On December 23, 2009, Carrasquillo, Pabellón, and González were indicted for conspiracy to possess with intent to distribute five kilograms or more of cocaine (count one) and conspiracy to import into the United States from the Dominican Republic five kilograms or more of cocaine (count two). Carrasquillo and Pabellón were also both charged with possession of a firearm in furtherance of a drug trafficking crime, specifically the alleged conspiracy (count three), and possession of a firearm with an obliterated serial number (count four). Pabellón alone was charged with being a felon in possession of a firearm (count five).
Defendants' jury trial began on February 7, 2011. On February 11, the jury found defendants guilty on all counts. After the denial of motions for judgments of acquittal pursuant to Federal Rule of Criminal Procedure 29, defendants were sentenced. González received a sentence of 120 months. Carrasquillo was sentenced to 144 months on counts one and two, and 60 months on count four, to be served concurrently with one another. The court also imposed a mandatory 60-month consecutive sentence on count ...