Opinion · Court of Appeals for the First Circuit
United States v. Santiago-Mendez
691 F.3d 1
- Type
- Opinion
- Court
- Court of Appeals for the First Circuit
- Jurisdiction
- Federal
- Date
- 2012-08-10
- Topic
- general
stating that testimony of a cooperating accomplice can be sufficient to sustain a conviction, even if uncorroborated | noting that "circumstantial evidence will suffice" to establish the elements of a conspiracy | noting that “We do not consider new evidence produced on appeal.” | noting that “We do not consider new evidence produced on appeal.” | explaining that "[w]e repeatedly have held that" even "'the uncorroborated testimony of a cooperating accomplice may sustain a conviction so long as that testimony is not facially incredible'" (quoting United States v. Torres–Galindo, 206 F.3d 136, 140 (1st Cir. 2000)) | holding that planting drugs constitutes distribution | noting that a jury may infer intent to distribute from "the quantity of drugs in a defendant's possession," "the quantity of cash on a defendant," "the manner in which the drugs were packaged," "the presence of drug paraphernalia," "and the presence of firearms" | affirming a § 841(a)(1) conviction and stating: “[I]t is well ac- cepted that drugs may be distributed by giving them away for free; 21 U.S.C. § 841(a)(1) imposes no requirement that a sale take place.” | “[T]he quantity of drugs attributable to a defendant for sentencing purposes is based on both the charged conduct and the relevant uncharged conduct.” | "We repeatedly have held that 'the uncorroborated testimony of a cooperating accomplice may sustain a conviction so long as that testimony is not facially incredible." | "This provision protects accepted law enforcement tactics such as sting or reverse-sting operations in which officers handle and transfer drugs." (footnote omitted) | "[T]he quantity of drugs attributable to a defendant for sentencing purposes is based on both the charged conduct and the relevant uncharged conduct." | “[T]he district court may, but is not required to incorporate 8 documents by reference.” | '"[W]e reject the validity of a so-called Nuremberg defense ... 'the fact that any person acted pursuant to the order of his Government or of a superior does not free him from responsibility for a crime."' | giving "transfer" its ordinary meaning in construing the phrase | giving “transfer” its ordinary meaning in construing the phrase | "issu[ing] instructions" sufficient for role in offense enhancement
Citator
- Cited by
- 39 opinions
United States Court of Appeals
For the First Circuit
Nos. 09-2094,
09-2211,
09-2285,
09-2376,
09-2461,
UNITED STATES OF AMERICA,
Appellee,
v.
VÍCTOR GERARDO CORTÉS-CABÁN,
PASCUAL SANTIAGO-MÉNDEZ,
LUIS ENRIQUE RUPERTO-TORRES,
ANTHONY DOMÍNGUEZ-COLÓN, and
VÍCTOR GERARDO CORTÉS-CABÁN,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Stahl, Circuit Judges.
Ramón García-García, for appellant Cortés-Cabán.
Ernesto Hernández-Milán, for appellant Santiago-Méndez.
Nicolás Nogueras-Cartagena, for appellant Ruperto-Torres.
Lydia Lizarríbar-Masini, for appellant Domínguez-Colón.
Scott H. Anderson, Assistant United States Attorney, with whom
Rosa Emilia Rodríguez-Velez, United States Attorney, Julia M.
Meconiates, Assistant United States Attorney, and Nelson Pérez-
Sosa, Assistant United States Attorney, Chief, Appellate Division,
were on brief for appellee.
August 10, 2012
-2-
TORRUELLA, Circuit Judge, opinion of the court except as
to Part II.B, Part II.C.1, and Part II.C.2; Dissenting in Part
II.B, Part II.C.1, and Part II.C.2.1
"Quis custodiet ipsos custodes?"2
We are presented with highly troubling instances of
abuses of police power, including the disturbing practice,
conducted by certain members of the Mayagüez Drugs and Narcotics
Division of the Puerto Rico Police Department, of planting evidence
and conducting illegal searches and seizures in violation of the
Fourth Amendment.
Defendants-Appellants Pascual Santiago-Méndez
("Santiago"), Anthony Domínguez-Colón ("Domínguez"), Victor Cortés-
Caban ("Cortés"), and Luis Enrique Ruperto-Torres ("Ruperto"), all
police officers in the Puerto Rico Police Department, were charged
in a two-count indictment for (1) conspiring to injure, oppress,
threaten, and intimidate persons in the town of Mayagüez in the
free exercise or enjoyment of their constitutional rights in
violation of 18 U.S.C. § 241
, and (2) conspiring to possess with
intent to distribute controlled substances in violation of 21
1
Chief Judge Lynch writes the opinion of the court as to the
issues considered in Part II.B, Part II.C.1, and Part II.C.2, which
Judge Stahl joins. See infra.
2
This expression is most commonly translated as, "Who watches the
watchmen?" Juvenal, Satires, "Satire VI: The Decay of Feminine
Virtue."
-3-
U.S.C. §§ 841(a)(1) & 846.3 Following their jury trial, all
appellants were convicted of count one, with Santiago, Cortés, and
Domínguez also being convicted of count two.
All appellants challenge their convictions, asserting
that the government failed to present sufficient evidence showing
a violation of either 18 U.S.C. § 241
or21 U.S.C. §§ 841
(a)(1) &
846.4 Additionally, Santiago, Domínguez, and Ruperto raise
distinct challenges to their sentences.
In brief, we affirm all appellants' convictions as to
count one. As to the convictions under count two for alleged
conspiracy to possess with intent to distribute controlled
substances, we are presented with a matter of first impression.
And it is here that I part company with my colleagues, who affirm
the convictions of Santiago, Cortés, and Domínguez as to count two
and conclude that the government's evidence satisfies the legal
requisites for a conviction of conspiracy to posses with intent to
distribute controlled substances under 21 U.S.C. §§ 841
(a)(1) and 846. I respectfully dissent from my colleagues' holding in this respect for the reasons set forth infra. 3 In total, ten defendants were indicted for their roles in the charged conspiracies. We limit our discussion to those appellants presently before us. 4 Because Ruperto only was convicted of count one, he limits his conviction challenge to whether the government met its burden of showing his involvement in a conspiracy pursuant to18 U.S.C. § 241
.
-4-
The evidence supporting the convictions as to both count
one (conspiracy to violate civil rights) and count two (conspiracy
to possess controlled substances with intent to distribute) is
substantially the same and is sufficient to permit the jury to
conclude beyond a reasonable doubt the following facts.
I. The Facts
A. The Black Box and the Nefarious Use of its Contents by Certain
Police Officers
The underlying criminal acts at issue in this case may be
traced back -- like so many Pandora-released evils -- to a box.
Appellants, members of the Puerto Rico Police
Department's Mayagüez Drugs and Narcotics Division (the
"Division"), were convicted of fabricating criminal cases against
citizens through the planting of controlled substances, leading to
such citizens' wrongful arrests based on the fabricated evidence.
Several appellants asserted that this was done to meet a
department-required weekly quota of arrests.5
From 2005 to 2007, Lieutenant Dennis Muñiz ("Muñiz")
served as the director of the Division. He participated and
5
The Division had a quota of arrests that officers were required
to complete every week. If officers failed to satisfy the
Division's quota they could face administrative repercussions, such
as a change in position. The government challenges appellants'
contentions that their actions were motivated by any such quota,
noting that in certain instances, Division members exacted a
personal vendetta against particular "marks" through case
fabrication. Appellants' motivation in this particular respect is
immaterial to establishing the illegality of their actions.
-5-
assisted in overseeing this fabrication practice. At trial, Muñiz,
testifying as a government witness, stated that the drugs used by
the officers for purposes of fabrication typically were stored in
a metal black box that generally was under the care and custody of
Santiago, a supervisor in the Division. It was Santiago's practice
to store the box in a file cabinet in his office. The box
contained a mélange of contraband, including crack, cocaine,
heroin, aluminum strips, drug paraphernalia, and ammunition rounds.
Such contraband was given to agents prior to their execution of a
search warrant or other intervention to ensure that an arrest would
ensue. Testimony at trial confirmed that Muñiz and Santiago
specifically instructed officers to plant drugs if a search or
intervention was not "positive," i.e., did not produce valid
grounds for arrest.6
The following acts of fabrication were established beyond
a reasonable doubt.7
6
Officers repeatedly used the term, "positive," to refer to a
search that had to produce grounds for an arrest, such as the
discovery of contraband or other illegal material. We use the term
in like fashion throughout this opinion.
7
We acknowledge at the outset that the record does not show the
subsequent consequences or ramifications for those citizens
implicated in the described fabricated cases and false arrests, nor
does it specifically confirm the charges for which the various
arrestees were processed. Where such information is available in
the record, it is so noted.
-6-
1. The Stolen Car Incident
Muñiz testified that sometime during his tenure as
director of the Division, his daughter called him to report that
her car had been stolen. Muñiz stated that he immediately
contacted Santiago to help investigate the matter and locate the
vehicle while he drove to meet his daughter. Meanwhile, Santiago
recruited agents Luis Vélez ("Vélez") and Domínguez to assist.
Soon after, Santiago called Muñiz to inform him that they not only
had located his daughter's car, but also had arrested three minors
whom they were taking to the Division in Mayagüez. Muñiz quickly
altered his course to drive to the Division, confirm ownership of
the vehicle, and observe the detained youths. On arriving at the
Division, Muñiz recognized his daughter's car. When he spoke with
Santiago, Santiago informed him that he had fabricated a case
against the minors, charging them with possession of controlled
substances even though no drugs had been found on them at the time
of arrest or processing. The arrested minors were processed for
possession of controlled substances and robbery of the vehicle,
ultimately pleading guilty to both counts. Of course, only the car
robbery charge was properly supported by legal evidence.
-7-
2. The Search of "El Monstruo's" Home
Around the end of 2006 and early 2007, officers conducted
a search of the residence of José "El Monstruo."8 Before leaving
the Division to assist with the search, Santiago handed Agent Vélez
a small bag containing marijuana and cocaine. Santiago, speaking
on behalf of himself and Muñiz, instructed Vélez to "wait for their
call" before taking any action, and advised Vélez that the search
had to be "positive." Vélez, also testifying for the government,
indicated that he only abided by the second part of the
instruction, taking it upon himself to plant the drugs in a closet
next to the bathroom upon entering the premises without waiting for
Santiago or Muñiz's go-ahead. Vélez also testified that he
received numerous calls from both Santiago and Muñiz during the
search, in which they repeatedly stressed that the search had to be
"positive." During one such call, Vélez stated that he told them
"the job had been done" and to "take it easy." Two individuals
present at the residence were arrested as a result of the search
and charged with illegal possession of controlled substances.
3. The Monte Isleño Search
In early 2007, Vélez was sent out to conduct another
search and seizure operation, this time in the Monte Isleño housing
project, the situs of an ongoing drug investigation with various
8
The record does not establish the full name of José, a/k/a "El
Monstruo." As can be discerned, "El Monstruo" means "The Monster"
in the Spanish language.
-8-
search and seizure orders. Santiago again gave Vélez a bag of
contraband, this time containing crack, and instructed him to make
sure the search turned out positive. On arriving at the premises,
Vélez observed two detained individuals and proceeded to the
interior of the residence; he planted the drugs in a bureau drawer
located on the second floor and exited the home. Officers
subsequently arrested the detained individuals based on the planted
evidence.
4. The Man Who Swallowed Marijuana
Also in early 2007, agents Santiago, Vélez, and Domínguez
were conducting a "preventive round" in an unmarked civilian
vehicle in the area of Quinto Centenario under Muñiz's
supervision.9 While patrolling, the officers observed a group of
people gathering under a tree. When the group spotted the police
officers' presence in the vehicle, one individual fled, which
prompted Domínguez and Vélez to immediately exit the car and give
chase. The chase was short-lived, as the individual tripped on his
sandals and fell. The officers detained the individual and
proceeded to search and question him. The search revealed no
contraband on his person, but upon questioning by Vélez the suspect
admitted to having swallowed marijuana before the police caught up
to him. Vélez testified that he noticed the smell of marijuana on
9
Testimony at trial clarified that a "preventive round" occurs
when officers patrol to maintain security and inhibit the
occurrence of crime through their presence.
-9-
the man's breath. The officers proceeded to arrest the subject and
to take him to the police station for processing where he was
charged with possession of cocaine, despite the fact that cocaine
was not found in his possession.
5. The "Planting" at the Puchi Residence
In approximately February or March 2007, agents in the
Division prepared for a search and seizure operation targeting a
known drug leader's home, Omayra Segarra, also known as "Puchi."
Vélez was to be one of the participating agents. Santiago,
frustrated with Puchi's lack of cooperation in providing the
Division with information, decided to "fix" the search. Santiago,
as had been done on previous occasions, advised Vélez that the
search had to be "positive" and handed him several baggies
containing marijuana and cocaine. Additionally, Santiago gave him
specific instructions to plant the drugs in both Puchi's home and
in her car.
Various officers, including Cortés, traveled with Vélez
to Puchi's residence. Upon arrival, the officers, including Vélez,
entered the residence. Vélez walked to a room and planted a bag
containing cocaine on a shelf in the closet. He then exited the
residence while the other officers continued the search of the
home, eventually coming upon the planted evidence. While standing
outside the residence, Vélez received a phone call from Santiago,
who was en route to Puchi's place, seeking an update on the Puchi
-10-
search. Vélez informed him that the "job up in the residence was
done," but that "the one in [Puchi's car] was still not so."
Soon after, Santiago arrived and obtained the keys to
Puchi's vehicle from Agent Cortés, who was still inside the home
conducting the search. Santiago opened Puchi's car's passenger
door and instructed Vélez to plant the marijuana in the vehicle,
which he did. Cortés then arrived with a drug canine, which
quickly detected the planted marijuana. Puchi and her husband were
arrested for possession of the planted controlled substances.
6. The Columbus Landing Episode
Following Puchi's arrest, the agents returned to the
Division. Some agents worked on the processing of the Puchi-
residence arrestees, while others left to get breakfast. The
remaining agents, including Vélez, waited to execute other
outstanding search and seizure orders. One of these orders
included a search at the Columbus Landing housing project.
Vélez left the Division together with Santiago in a
police vehicle, while other officers traveled to the project
separately. Vélez testified that when he and Santiago arrived at
the search location, Santiago handed him a brown paper bag
containing baggies of cocaine. Santiago advised Vélez that the
search had to be "positive." Vélez testified that he felt
"uncomfortable" with Santiago's instructions, and told him that
"this had to come to an end, that this manner of working could not
-11-
continue." Vélez then entered the home, placed the paper bag
containing the cocaine baggies on top of a bureau in a bedroom, and
exited the room.
On leaving the room, Vélez said he saw that the other
assisting officers already had placed two of the home's residents
under arrest for legitimately-discovered -- i.e., not planted --
controlled substances. Santiago, observing the same, instructed
Vélez to retrieve the planted paper bag from the bedroom. Vélez
complied and hid the bag inside his bulletproof vest pocket. Once
Santiago and Vélez had reached their police vehicle, Vélez
testified that he threw the drug bag into the private confines of
the car and told Santiago, "This can't go on. This isn't going to
happen again." But like many other plans of mice and men, this was
not to be.
Vélez participated in yet another search operation later
that same day, also at the Columbus Landing housing project,
planting the same bag retrieved from the previous operation in a
pile of men's shoes in the targeted residence, again pursuant to
Muñiz's instructions. The planted evidence was again the basis for
the arrest of the Columbus Landing resident.
7. Bosques' Revenge
In July 2007, Santiago received a phone call from Agent
José Bosques ("Bosques"), who by that time was cooperating with the
-12-
Federal Bureau of Investigation ("FBI").10 Bosques told Santiago
he needed drugs to fabricate a case against his neighbors, and told
him he was going to the Division to obtain some from their stash.
Santiago informed Bosques that he had left their cache with Vélez,
but that he could take whatever he wanted. Bosques then called
Vélez. Vélez was not at the office, but said the black box was.
After speaking with Vélez, Bosques again contacted Santiago,
informing him of his predicament. Santiago suggested that Bosques
contact Agent Bey to see if he could provide him with the drugs,
and Santiago did so. He explained to Bey why he wanted the drugs
and requested a few bags of marijuana and cocaine. Bey initially
told Bosques that he would look into it; however, when Bosques
called Bey again while en route to the Division, Bey said he was no
longer there, but that he had left the drugs with Domínguez.
When Bosques arrived, Domínguez had them go to the
restroom. He then handed Bosques a clear plastic bag containing a
small amount of the requested cocaine and marijuana. Upon seeing
the small amount of drugs, Bosques asked Domínguez for rounds of
ammunition that he could plant in addition to the drugs. Domínguez
became suspicious of the request and asked Bosques if he was
"wired," trying to lift up Bosques's shirt to confirm his
10
The exact date when Agent Bosques first began cooperating with
the FBI is not clear from the record. What is clear, however, is
that Bosques often wore a concealed recording device to document
his interactions with the conspiring officers.
-13-
suspicions. Bosques literally dodged the question and moved out of
Domínguez's prying reach; he picked up his bulletproof vest, which
was lying nearby, and held it against his body to avoid Domínguez's
inquisitive hands. Domínguez was taken in by this ruse and
desisted in his attempt to pat Bosques down, instead giving Bosques
the requested rounds. Bosques then left the premises, thereafter
handing the drugs, ammunition, and recording equipment to the FBI.
8. Going to the Dogs
Also in July 2007, civilian Wilfredo Henríquez Pérez
("Henríquez") arrived home from work and, as was his custom, left
to walk his dog. While walking his dog, Henríquez spotted an
individual dressed in civilian clothes running towards him
brandishing a weapon in his hand. Unbeknownst to Henríquez, the
individual was a police officer, Agent Domínguez, to be precise.
Domínguez detained Henríquez, hitting him twice on the side of the
head. Domínguez then patted Henríquez down, finding five dollars
on his person. He arrested him and placed him in a police car.
Henríquez repeatedly asked Domínguez why he was under
arrest, but to no avail. Upon arriving at the police station,
Henríquez was placed in an office while Domínguez spoke to Vélez.
Domínguez then requested two bags of drugs from Vélez. On
receiving them, he reentered the office in which Henríquez had been
detained, gestured to the bags, and told Henríquez, "this is what
I got from you, what I seized from you, . . . [i]f you help me,
-14-
I'll help you." Domínguez, apparently unsatisfied with Henríquez's
response, decided to release Henríquez soon after. He was about to
do so when Henríquez's neighbor, Pita Martí ("Martí"), an attorney,
arrived at the station. Martí stated that he had witnessed the
entire incident of Henríquez's arrest, and that at no time did he
see Domínguez seize any drugs from Henríquez. A brief
confrontation ensued, causing Domínguez to take Henríquez back
inside the station, thereby prolonging his detainment. Later that
evening, Henríquez was released. No formal drug possession charges
were ever filed against him.
9. Confessions in an Unmarked Police Car
In mid-July 2007, Agents Bosques and Cortés,
investigating two individuals named Corinna and Bachan, went on a
surveillance assignment in an unmarked police car. The agents
observed Corinna leave a house in a car and followed him in their
vehicle for a brief period. Despite not observing any illegal acts
on Corinna's part during that time, Bosques testified that Cortés
told him "he would 'dress' [Corrina] up himself." Bosques stated
he interpreted Cortés' statement to mean that, when drafting his
sworn statement for a search warrant, Cortés would craft the facts
in such a manner that they would support the issuance of a warrant.
Also while patrolling, Bosques testified that Cortés
spoke to him about a previous arrest, to which he admitted to
fabricating the facts. Soon after their surveillance session,
-15-
Bosques assisted Cortés in drafting a sworn affidavit -- containing
false information describing events that never took place -- to
obtain a search warrant against Bachan and Corrina.
10. "Dealing With It" at the El Carmen Housing Project
Bosques went on another surveillance assignment with
Agent Ruperto, also in mid-July. Ruperto, one of the higher-
ranking officers in the operation, instructed Bosques that he
wanted to complete eight arrests that day to satisfy their quota.
They then traveled to the El Carmen housing project, as Bosques
testified, "to intervene with any person who was committing any
type of violation against the controlled substances law."
The plan for the operation was for Bosques, Cortés, and
other participating agents to interview various confirmed drug
users and record their names and personal information under the
guise of locating a drug rehabilitation program for them. This
explanation, in fact, was a ploy for the agents' ongoing practice
of inputting such information to generate false arrest reports.
While patrolling, Ruperto told Bosques that he expected
him "to catch a motherfucker who's full of drugs." When Bosques
asked what he should do if he seized an individual with no drugs on
his person, Ruperto replied, "[y]ou have to deal with that."
Bosques reminded Ruperto that he was "in zero," meaning he had just
returned from vacation, and thus, had no drugs or substances with
which to fabricate a case or an arrest. Ruperto and Bosques
-16-
continued patrolling and passed the same area in which Domínguez
had chased down and arrested Henríquez. Ruperto, remembering the
incident, began laughing and remarked, "[Domínguez] did what he had
to do." When Henríquez, by chance, passed by their surveillance
point, Ruperto, recognizing him, said, "Look at Flaco, where we
arrested him."11
11. The Unraveling of the Conspiracy to Fabricate
Criminal Cases and the Search for the Black Box
On July 17, 2007, FBI agents Edwin Dorsey ("Dorsey") and
Julio Tobar ("Tobar") approached Cortés as he exited a local
courthouse. The federal agents told Cortés that they wanted to
speak with him regarding the suspected fabrication of cases
occurring in his unit at the time, as well as both his and his
officers' participation in such activity. The federal agents
invited Cortés into their vehicle for a more private conversation.
Federal agent Tobar then stated that he knew Cortés had in his
possession at that time two affidavits containing false information
that he had authenticated in court. After Tobar read Cortés his
rights, Cortés admitted the falsity of the affidavits and confirmed
his involvement in the fabrication of other cases in his unit.
Following their conversation, Dorsey and Tobar sought and
executed a search warrant to locate and seize the infamous black
box containing the contraband. The subsequent search of the drug
11
At trial, Bosques explained that Ruperto's reference to "Flaco"
was his means of referring to Henríquez.
-17-
unit's premises concluded with the agents' finding the box in
Vélez's desk. They also discovered more controlled substances in
a locker inside the unit's premises.
While the FBI agents were executing the warrant, Division
officers, including Bosques, Santiago,12 Ruperto, and Vélez, met
outside the building to try to concoct an alibi justifying their
possession of various contraband and the black box. A potential
plan was to inform the federal agents that the black box had been
seized during a search of a housing project. The Division officers
met again several days later to discuss the FBI search and confirm
their stories. Santiago instructed Vélez to prepare a report,
explaining that the black box had been seized during a search of a
housing project following a confidential phone call, but that, due
to excessive work, he had been unable to draft the report sooner.
On July 21, 2007, Cortés and federal agent Tobar met
again. During their meeting, and after Tobar had read Cortés his
rights, Cortés admitted that he had participated in the planting of
evidence in several of the fabricated cases, listing approximately
ten to fifteen instances when he had done so. Cortés additionally
admitted to planting evidence approximately twenty times and to
executing approximately seventy search warrants containing some
12
Agent Santiago had recently returned from vacationing in the
Dominican Republic, arriving the day of the FBI's search of the
Division. Testimony at trial established that Santiago had given
the black box to Vélez prior to his vacation.
-18-
degree of false information. Cortés confirmed that during a search
of a housing project, he, along with other agents, had gathered
information from drug users under the pretense of finding them a
rehabilitation program, when in fact the agents were using such
data to generate false arrest reports. Lastly, Cortés admitted to
giving drugs to Bosques so that he could use them to plant evidence
in support of fabricated cases.
On August 23, 2007, a grand jury issued a two-count
indictment in the District of Puerto Rico, charging appellants with
conspiracy to violate civil rights under 18 U.S.C. § 241
, and conspiracy to possess controlled substances with intent to distribute in violation of21 U.S.C. §§ 841
(a)(1) & 846. Following
trial, the jury rendered a verdict, convicting Santiago, Cortés,
and Domínguez of both counts and Ruperto, only of count one. The
district court subsequently denied appellants' Rule 29 motions for
a judgment of acquittal and sentenced them to differing terms of
imprisonment. This appeal followed.
II. Discussion
All appellants challenge their convictions as to count
one, with Cortés, Domínguez, and Santiago also challenging their
count two convictions.
The standards of review applicable to the issues before
us are well-settled. We review a district court's Rule 29
determination de novo. United States v. Hernández, 218 F.3d 58
, 64
-19-
(1st Cir. 2000). Our case law also clearly holds that a review of
a court's denial of a motion for acquittal "is quite limited; we
must affirm unless the evidence, viewed in the light most favorable
to the government, could not have persuaded any trier of fact of
the defendant's guilt beyond a reasonable doubt." Id.
(quoting United States v. Paradis,802 F.2d 553, 559
(1st Cir. 1986)) (internal quotation mark omitted). This standard of review is "formidable, and defendants challenging convictions for insufficiency of evidence face an uphill battle on appeal." United States v. Rivera-Rodríguez,617 F.3d 581, 596
(1st Cir. 2010) (quoting United States v. Lipscomb,539 F.3d 32, 40
(1st Cir. 2008)) (internal quotation marks omitted). In assessing appellants' sufficiency of the evidence challenge, we place "no premium . . . upon direct as opposed to circumstantial evidence; both types of proof can adequately ground a conviction." United States v. Ortiz,966 F.2d 707, 711
(1st Cir. 1992). A. Conspiracy pursuant to18 U.S.C. § 241
Appellants argue that the government failed to present
sufficient evidence showing (1) their respective involvement in or
agreement to join the § 241 conspiracy, or (2) any specific intent
on each of their parts to so violate citizens' rights.13
13
In contesting the sufficiency of the evidence supporting their
count one convictions, appellants raise the following additional
arguments unique to their respective appeals.
Santiago contends that the government did not identify nor
-20-
present testimony from a victim whose rights actually were harmed
by Santiago. Moreover, Henríquez, the only witness-victim whom the
government did offer, identified Domínguez and Cortés as his
perpetrators and misidentified one of the conspirators at trial,
weakening his credibility.
Domínguez argues that the specific instances for which the
government offered evidence in support of appellants' alleged
violations did not prove the occurrence of unlawful arrests;
rather, the evidence showed that "there was founded reason to
believe that [the arrested] individuals had engaged in unlawful
conduct." Further, Domínguez contends that in none of the alleged
incidents was he specifically identified to have been carrying or
planting baggies of drugs. Lastly, even if any of the alleged
conspiratorial acts in fact occurred, Domínguez asserts that such
actions were carried out pursuant to superiors' orders, weighing
against a finding of liability as to count one.
Ruperto likewise argues that the evidence offered at trial
showed, at most, that any actions undertaken on his part were
performed pursuant to superiors' orders. Moreover, testimony at
trial confirmed that any interventions in which he participated
were legitimate. No evidence showed Ruperto had any knowledge as
to other officers' planting of false evidence; that he ever asked
or ordered another officer to fabricate a case; or that he himself
so planted evidence.
Ruperto also notes that he only was convicted of the count one
conspiracy, but not of the count two conspiracy. Ruperto contends
the only evidence presented as to count one turned on the same
wrongdoing -- appellants' alleged use of illegal drugs to fabricate
cases -- supporting his co-appellants' convictions as to count two.
Because he was acquitted of "all wrong-doing related to the drug
[distribution] conspiracy," and because the government failed to
produce other evidence showing a violation of citizens' rights,
Ruperto argues that his conviction under count one cannot stand.
These arguments were incorporated into appellants' overall
sufficiency of the evidence challenges to their count one
convictions, which we reject for the reasons stated herein.
Regarding Domínguez and Ruperto's "following orders" defense, we
reject the validity of a so-called Nuremberg defense. Cf. Judgment
of the Tribunal, Trial of Wilhelm von Leeb and Thirteen Others, 12
Law Reports of Trials of War Criminals 1, 71-72 (United States War
Crimes Commission 1949) (noting "[t]he fact that any person acted
pursuant to the order of his Government or of a superior does not
-21-
1. Standard of Review and Applicable Law
A conspiracy pursuant to 18 U.S.C. § 241
exists where "two or more persons conspire to injure, oppress, threaten, or intimidate any person . . . in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States . . . ."18 U.S.C. § 241
. Thus, to convict for such a conspiracy, the government must establish that defendants "1) conspired to injure, oppress, threaten, or intimidate one or more of the victims, 2) with the intent to interfere with the victim's due process rights, 3) under color of state law." United States v. Guidry,456 F.3d 493, 507
(5th Cir. 2006); see also18 U.S.C. § 241
; United States v. Vaden,912 F.2d 780, 781
(5th Cir. 1990).
Additionally, because the normal rules for proving a
conspiracy apply, the government must show that "(1) a conspiracy
existed, (2) the defendants had knowledge of the conspiracy, and
(3) the defendants voluntarily participated in the conspiracy."
United States v. Rodríguez-Ortiz, 455 F.3d 18, 22
(1st Cir. 2006). Direct or circumstantial evidence will suffice to establish each of these elements.Id.
We note that an alleged conspirator's agreement to participate in a conspiracy "need not be express." United States v. Lizardo,445 F.3d 73, 81
(1st Cir. 2006).
Moreover, "each coconspirator need not know of or have contact with
free him from responsibility for a crime").
-22-
all other members, nor must they know all of the details of the
conspiracy or participate in every act in furtherance of it."
United States v. Martínez-Medina, 279 F.3d 105, 113
(1st Cir.
2002).
Because the facts in this case amply support the
determination that a rational trier of fact could have found,
beyond a reasonable doubt, that appellants, acting under color of
state law, conspired to violate various Mayagüez residents' rights,
we reject appellants' arguments as to their count one conviction.
2. Analysis
a. Sufficiency of the Evidence
Three cooperating co-conspirators testified, including
Muñiz, the Division's director from 2005 until the date of arrest,
and Vélez and Bosques, officers in the Division. We repeatedly
have held that "the uncorroborated testimony of a cooperating
accomplice may sustain a conviction so long as that testimony is
not facially incredible." United States v. Torres-Galindo, 206 F.3d 136, 140
(1st Cir. 2000) (emphasis added); United States v. Rosario-Díaz,202 F.3d 54
, 67 (1st Cir. 2000); United States v. Andújar,49 F.3d 16, 21
(1st Cir. 1995); United States v. Gómez- Pabón,911 F.2d 847
, 853 (1st Cir. 1990). Here, we have the
corroborated testimonies of three cooperating witnesses, each of
which could allow a jury to reasonably infer that appellants were
actively involved in the count one conspiracy. Muñiz, Bosques, and
-23-
Vélez's testimonies repeatedly established appellants' voluntary
participation in an unlawful scheme to fabricate cases and violate
citizens' constitutional rights. Each provided a detailed overview
of the Division's practice of fabricating cases by planting
evidence and falsifying arrest reports. They repeatedly identified
active participants, which included appellants, and confirmed one
another's respective testimonies.
The three officers explained that agents generally met at
the Division before executing a search warrant or performing other
forms of police intervention, at which times Santiago would hand
out contraband to agents with instructions to plant evidence to
prevent a "negative" search. They described the black box and its
location in the office, as well as the source and nature of its
contents. Additionally, they specifically detailed various
incidents in which Santiago and Muñiz provided officers with drugs
to plant evidence to ensure a positive result and to the subsequent
consequences of such actions to the citizens in question.14
Moreover, none of the witnesses' respective testimonies
was facially incredible. Torres-Galindo, 206 F.3d at 140
; Rosario-
Díaz, 202 F.3d at 67. Their respective testimonies were
vindicatory of the others; defense counsel zealously challenged
each witness' credibility throughout trial; and both sides
highlighted the witnesses' participation in the crimes committed
14
See supra Part I.A.
-24-
for the jury's consideration. The credibility and weight to be
given to the testimony of these witnesses were classical issues for
the jury.
Even if it could plausibly be argued that the testimonies
of Muñiz, Bosques, and Vélez were not sufficient to sustain the
jury's determination -- a conclusion that is unsupportable on this
record -- the government also introduced a series of audio and
video recordings that corroborated the witnesses' testimonies and
further insulated the conclusion that they conspired to deprive
citizens of their constitutional rights.15
Appellants' arguments do little to persuade us that the
corroborated and detailed evidence presented at trial was so
insubstantial or incredible that the jury's convictions could not
be supported by the weight of the evidence. At most, appellants'
challenges address whether the government satisfied its evidentiary
burden of establishing their involvement in a conspiracy to violate
constitutional rights. However, the case law makes clear that a
conspirator's agreement to participate "need not be express, [and]
may consist of no more than a tacit understanding," United States
v. Echeverri, 982 F.2d 675, 679
(1st Cir. 1993) (quoting United States v. Glover,814 F.2d 15, 16
(1st Cir. 1987)) (internal
quotation marks omitted); "[t]here is no need for a conspirator to
know the other participants in the conspiracy," United States v.
15
See supra Part I.A.
-25-
Rivera-Ruiz, 244 F.3d 263, 268
(1st Cir. 2001); "the government need not prove that the defendant[s] knew all the details . . . of the conspiracy," United States v. Nueva,979 F.2d 880, 884
(1st Cir. 1992); a conspirator does not have to "realize the full extent of the conspiracy to be found guilty," Rivera-Ruiz,244 F.3d at 268
; and specific intent may be established through circumstantial evidence alone. United States v. Donato-Morales,382 F.3d 42, 47
(1st Cir. 2004).
Here, the evidence established that various identified
officers in the Division (including appellants) met with one
another and received contraband with specific instructions to
fabricate cases. These officers accepted the contraband and
participated in several incidents of planting to ensure positive
results. Additionally, the record shows the officers were
cognizant of their co-conspirators' identities, participated in
nefarious activities with knowledge as to their illegal object, and
understood the overall purpose of the conspiracy. In fact, the
evidence establishes that the conspirators often discussed their
case-fabrication experiences amongst themselves, and in the last
stages of the conspiracy, met to concoct an alibi to explain their
possession of the black box and its contraband contents to the
investigating authorities that were closing in on them.
-26-
The government's evidence as to count one overwhelmingly
clears the requisite evidentiary bar. We thus affirm appellants'
convictions as to the count one conspiracy.
b. Ruperto's Inconsistent Verdicts Argument
Ruperto raises the separate argument that the jury
verdict as to him was unreasonable because he was acquitted of
count two, but convicted under count one. He contends that the
count one conspiracy involved the fabrication of cases that turned
on the conspirators' intent to use drugs for planting, the latter
of which was targeted under count two's charge. We reject
Ruperto's argument.
Case law is clear that "verdicts are not inconsistent if
the elements of the two charged counts are not identical." United
States v. Berbere, 229 F.3d 1134
,2000 WL 1160439
, at *1 (1st Cir. 2000) (unpublished table decision) (emphasis added). The elements of the charges in counts one (conspiracy to violate citizens' constitutional rights) and two (conspiracy to possess with intent to distribute a controlled substance) are different: one is a violation of rights charge and the other a drug distribution charge. Even if the verdicts could somehow be deemed inconsistent, "the Supreme Court has made it clear that verdict inconsistency in itself is not a sufficient basis for vacating a conviction," United States v. López,944 F.2d 33, 41
(1st Cir. 1991), provided that
"the appellate court is satisfied that there was sufficient
-27-
evidence to sustain the counts of conviction." United States v.
Sullivan, 85 F.3d 743, 747
(1st Cir. 1996). Here the evidence, in the form of various cooperating witnesses' testimonies and audio and video recordings, was sufficient to show that Ruperto conspired with his co-conspirators to violate individuals' rights. It is not our role to "weigh[] the credibility of the witnesses nor attempt[] to assess whether the prosecution succeeded in eliminating every possible theory consistent with the defendant's innocence." Berbere, 229 F.3d at 1134,2000 WL 1160439
, at *1 (quoting United States v. Noah,130 F.3d 490, 494
(1st Cir. 1997)). Because the evidence supports the jury's conviction as to count one, we reject Ruperto's challenge and affirm his count one conviction. B. Conspiracy Pursuant to21 U.S.C. §§ 841
(a)(1) & 846
Santiago, Cortés, and Domínguez argue that the evidence
was insufficient to convict them of conspiring to possess
controlled substances with an intent to distribute in violation of
21 U.S.C. §§ 841
(a)(1) & 846. Cortés and Domínguez further state,
but do not develop an argument, that a conspiracy by law
enforcement officers to plant controlled substances on victims in
order to fabricate criminal cases does not entail the specific
intent to distribute within the meaning of § 841(a)(1). We
disagree. Because the express language of the statute encompasses
defendants' conduct, and there is no expression of contrary intent,
-28-
and because the evidence amply supports the verdict, we affirm
their conviction under count two.
Our review of the district court's Rule 29 determinations
is de novo. Hernández, 218 F.3d at 64
. "However, our review of the district court's decision to deny a motion for acquittal is quite limited; we must affirm unless the evidence, viewed in the light most favorable to the government, could not have persuaded any trier of fact of the defendant's guilt beyond a reasonable doubt."Id.
(quoting Paradis,802 F.2d at 559
) (internal quotation marks omitted). In applying this standard, "no premium is placed upon direct as opposed to circumstantial evidence; both types of proof can adequately ground a conviction."Id.
(quoting Ortiz,966 F.2d at 711
) (internal quotation marks omitted). Nor may we weigh the evidence or make credibility judgments, as these tasks are reserved to the jury.Id.
Instead, we "must uphold any verdict that is 'supported by a plausible rendition of the record.'"Id.
(quoting Ortiz,966 F.2d at 711
).
"As with any question of statutory interpretation, our
analysis begins with the plain language of the statute." Jimenez
v. Quarterman, 555 U.S. 113, 118
(2009); see also Recovery Grp., Inc. v. Comm'r,652 F.3d 122, 125
(1st Cir. 2011). The Controlled Substances Act, as codified at21 U.S.C. § 841
(a)(1), makes it
"unlawful for any person [to] knowingly or intentionally . . .
manufacture, distribute, or dispense, or possess with intent to
-29-
manufacture, distribute, or dispense, a controlled substance." 21 U.S.C. § 841
(a)(1). Section 846, in turn, provides that "[a]ny person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy."Id.
§ 846.16
Under the plain language of § 841(a)(1), a prima facie
case of possession with intent to distribute requires a showing
that the defendant (1) knowingly and intentionally possessed; (2)
a controlled substance; (3) with the specific intent to distribute.
United States v. García-Carrasquillo, 483 F.3d 124, 130
(1st Cir.
2007).
It is the third element, specific intent to distribute,
with which defendants take issue. Specific intent requires a
showing that the defendant intended the proscribed outcome as his
purpose. United States v. Dyer, 589 F.3d 520, 528
(1st Cir. 2009). This raises two related issues: what constitutes "distribution" within the meaning of the statute, and, given the meaning of that 16 As previously discussed in the review of count one, to prove a conspiracy the government must show "the existence of a conspiracy, the defendant's knowledge of the conspiracy, and the defendant's voluntary participation in the conspiracy," Gómez-Pabón, 911 F.2d at 852, with "voluntary participation" constituting an "intent to agree to the conspiracy and [an] intent to effectuate the object of the conspiracy," United States v. Casas,356 F.3d 104, 126
(1st Cir. 2004). The defendant's voluntary participation may be proved either by direct or circumstantial evidence. See United States v. Rivera-Santiago,872 F.2d 1073, 1079
(1st Cir. 1989).
-30-
term, whether the conspirators had the requisite specific intent to
distribute required by the statute.
1. The Meaning of "Distribute"
The term "distribute" is defined under the Controlled
Substances Act as "to deliver (other than by administering or
dispensing) a controlled substance or a listed chemical." 21 U.S.C. § 802
(11).17 The Act defines "deliver" as "the actual, constructive, or attempted transfer of a controlled substance or a listed chemical, whether or not there exists an agency relationship."Id.
§ 802(8). Although the Act does not define the term "transfer," we may interpret this word by reference to its commonly accepted meaning. See United States v. Collazo-Castro,660 F.3d 516, 520
(1st Cir. 2011) ("[W]e begin with the ordinary
meaning of the terms," which we may decipher by "consult[ing]
dictionary definitions, interpretations given to the same terms by
judicial construction, and the statutory context in which the words
are used." (quoting Hernández-Miranda v. Empresas Diáz Massó, Inc.,
651 F.3d 167, 171
(1st Cir. 2011) (internal quotation marks omitted)), cert. denied132 S. Ct. 1593
(2012). To transfer means
"to carry or take from one person or place to another . . . ; to
move or send to a different location . . . ; to cause to pass from
17
This statutory definition is consistent with the ordinary
meaning of "distribution," which is defined as "[t]he act or
process of apportioning or giving out." Black's Law Dictionary 543
(9th ed. 2009).
-31-
one person or thing to another." Webster's Third New International
Dictionary 2426-27 (1993); see also Oxford English Dictionary (2d
ed. 1989), available at http://www.oed.com (defining "transfer" as
"[t]o convey or take from one place, person, etc. to another; to
transmit, transport; to give or hand over from one to another);
Black's Law Dictionary 1636 (9th ed. 2009) (defining "transfer" as
"[a]ny mode of disposing of or parting with an asset").
Courts, including this one, have held that "distribute"
is defined broadly under § 841(a)(1). See United States v. Castro,
279 F.3d 30, 34
(1st Cir. 2002) ("Section 841(a)(1) contains a
broad prohibition on distribution . . . ."); see also United States
v. Birbragher, 603 F.3d 478, 485
(8th Cir. 2010) (describing § 841 as a "broad prohibition on the distribution of controlled substances"); United States v. Wallace,532 F.3d 126, 129
(2d Cir. 2008) (explaining that use of the broad terms "distribute" and "deliver" bespeaks a congressional intent "to proscribe a range of conduct broader than the mere sale of narcotics" (quoting United States v. Washington,41 F.3d 917, 919
(4th Cir. 1994) (internal quotation marks omitted))); United States v. Tingle,183 F.3d 719
,
727 n.3 (7th Cir. 1999) ("Courts usually interpret the term
'distribution' and related words quite broadly."); Washington, 41 F.3d at 919
("[I]n enacting the 1970 Act, Congress intended to
proscribe a range of conduct broader than the mere sale of
narcotics."); United States v. Catchings, 922 F.2d 777, 779
(11th
-32-
Cir. 1991) (per curiam) (rejecting a "narrow construction of
'distribute'" and stating that the circuit "interpret[s]
distribution broadly"); United States v. Luster, 896 F.2d 1122, 1127
(8th Cir. 1990) ("Courts have interpreted the term
'distribute' under subsection 841(a) quite broadly . . . .");
United States v. Ahumada-Avalos, 875 F.2d 681, 683
(9th Cir. 1989)
(per curiam) ("The courts usually interpret the term 'distribution'
quite broadly."); United States v. Brunty, 701 F.2d 1375, 1381
(11th Cir. 1983) ("Cases involving distribution under § 841(a)
support a broad construction of the offense.").
Defendants' conduct here falls within the language of the
statute. The jury found that the defendants agreed, voluntarily
and knowingly, to take the drugs, either from the black box in
Santiago's office or from one another, and to intentionally
transfer, and so distribute, those drugs to the victims' persons or
property in their proximity. They did this so that the drugs would
be "discovered" by officers, giving cause for the victims' arrest.
The defendants' acts of transferring the drugs amongst each other
and to the victims constitutes an intent to distribute the drugs
under § 841(a)(1), which results in a transfer of possession of a
controlled substance, in other words, a "distribution." "[W]here,
as here, the statute's language is plain, 'the sole function of the
courts is to enforce it according to its terms.'" United States v.
Ron Pair Enters., Inc., 489 U.S. 235, 241
(1989) (quoting Caminetti
-33-
v. United States, 242 U.S. 470, 485
(1917)); see also People To End Homelessness, Inc. v. Develco Singles Apartments Assocs.,339 F.3d 1, 6
(1st Cir. 2003).
"Absent a clearly expressed legislative intention to the
contrary, that language must ordinarily be regarded as conclusive."
Albernaz v. United States, 450 U.S. 333, 336
(1981) (quoting Consumers Prod. Safety Comm'n v. GTE Sylvania, Inc.,447 U.S. 102, 108
(1980)) (internal quotation marks omitted). There is no
clearly expressed legislative intention to the contrary here, so we
regard the text as conclusive. There is no language anywhere in
the statute which supports defendants argument of non-coverage.
Rather, as explained later, there is other language which works to
the contrary.
Application of § 841(a)(1) here is supported not only by
the language but by the fact that this language reflects a
deliberate choice by Congress to use broad language. "The
Comprehensive Drug Abuse Prevention and Control Act of 1970 is
extremely broad in scope, no longer restricted to the narrower
concepts of buy and sell, but all inclusive in covering the entire
field of narcotics and dangerous drugs in all phases of their
manufacturing, processing, distribution and use." United States v.
Pruitt, 487 F.2d 1241, 1245
(8th Cir. 1973). Before the enactment
of the Act, a participant in an illegal drug transaction had to be
-34-
punished as either a seller or a buyer. Id.
(citing United States v. Moses,220 F.2d 166, 168
(3d Cir. 1955)).
Congress, recognizing that narcotics typically pass
through several hands before reaching the ultimate user, opted to
view the transaction as a whole and intended to make illegal
participation at any and all stages. As a result, "[a]ny
individual who participates in any manner in the unauthorized
distribution of such 'controlled substances' is amenable to the Act
and the sanctions provided therein." Id.
(emphasis added); Brunty,701 F.2d at 1381
; United States v. Wigley,627 F.2d 224, 226
(10th
Cir. 1980) (per curiam).
Based on this deliberate choice not to restrict § 841,
including to buying or selling, courts have concluded that
"Congress undoubtedly intended by this new Act to make an all-out
attempt to combat illicit drugs" by targeting "any individual who
knowingly participates in the distribution" in any way. Pruitt,
487 F.2d at 1245
. "The distribution provision has been held to criminalize 'participation in the transaction viewed as a whole.'" Ahumada-Avalos,875 F.2d at 683
(quoting Brunty,701 F.2d at 1381
); see also Pruitt,487 F.2d at 1245
; Wigley,627 F.2d at 226
.
"Courts have interpreted the term 'distribute' under subsection
841(a) quite broadly to include not only the transfer of physical
possession, but also other acts perpetrated in furtherance of a
transfer or sale, such as arranging or supervising the delivery, or
-35-
negotiating for or receiving the purchase price." Luster, 896 F.2d at 1127
(quoting Brunty,701 F.2d at 1381
) (internal quotation marks omitted). The defendant need not even "actually touch[] or physically possess[] the drug" to be convicted under § 841. Catchings,922 F.2d at 779
-80 (citing United States v. Oquendo,505 F.2d 1307, 1310
(5th Cir. 1975)); see also, e.g., United States v. Tejada,886 F.2d 483, 490
(1st Cir. 1989) ("[P]roof of distribution
does not necessarily include the element of possession."); United
States v. Collins, 552 F.2d 243, 245-46
(8th Cir. 1977) (holding
that defendant was properly convicted of distributing heroin under
§ 841(a) even though he did not physically transfer the heroin but
was a conduit in the exchange of money).
In accord with this view of the term "distribute," we
have recognized that distribution takes place in a wide variety of
contexts and the relevant question is not the ultimate objective.
For instance, we have stated that "[w]hether or not sharing [drugs]
with a girlfriend is often so prosecuted, it is as much
'distribution' as selling on a street corner." United States v.
Boidi, 568 F.3d 24, 29
(1st Cir. 2009). Likewise, we have noted that "[i]t is well accepted that drugs may be distributed by giving them away for free;21 U.S.C. § 841
(a)(1) imposes no requirement that a sale take place." United States v. Cormier,468 F.3d 63
, 70
n.3 (1st Cir. 2006). The underlying goal of the distribution is,
under the plain language of the statute, irrelevant to the question
-36-
of whether there was a "distribution." See United States v.
Santistevan, 39 F.3d 250
, 255 n.7 (10th Cir. 1994) (stating that an
"improper motive" is not required under the statute).
Furthermore, the statute carves out specific exceptions
for legitimate activities which do not include the conduct here,
and which require the statute to be read against defendants'
arguments. Congress was well aware of the question of legitimate
handling of drugs, for it carved out exceptions, but those
exceptions do not include the activities in which these defendants
engaged.
In one exception, Congress determined that distribution
of drugs by certain registered persons is lawful:
Every person who . . . distributes any
controlled substance or list I chemical, or
who proposes to engage in the . . .
distribution of any controlled substance or
list I chemical, shall obtain annually a
registration issued by the Attorney General in
accordance with the rules and regulations
promulgated by him.
21 U.S.C. § 822
(a)(1).
Under 21 U.S.C. § 822
(b), "[p]ersons registered . . . [to] distribute . . . controlled substances or list I chemicals are authorized to possess . . . [or] distribute . . . such substances or chemicals . . . to the extent authorized by their registration . . . ."Id.
§ 822(b). These defendants are not registered
-37-
persons authorized to distribute drugs, and so are not part of the
legitimate distribution channels.18
Even more importantly, Congress carved out a specific
exemption for distribution of controlled substances by law
enforcement officers, but only to the extent that they are
"lawfully engaged" in the enforcement of drug laws. See id. § 885.
Section 885 provides:
(d) Immunity of Federal, State, local and
other officials
Except as provided in sections 2234 and 2235
of title 18, no civil or criminal liability
shall be imposed by virtue of this subchapter19
upon any duly authorized Federal officer
lawfully engaged in the enforcement of this
subchapter, or upon any duly authorized
officer of any State, territory, political
subdivision thereof, the District of Columbia,
18
The legislative history states that the registration provisions
were designed to "provid[e] for a 'closed' system of drug
distribution for legitimate handlers of such drugs," H.R. Rep. No.
91-1444 (1970), reprinted in 1970 U.S.C.C.A.N. 4566, 4571-72, and
to enable the Department of Justice "to keep track of all drugs
subject to abuse manufactured or distributed in the United States
in order to prevent diversion of these drugs from legitimate
channels of commerce," id. at 4589. See also Gonzales v. Raich,
545 U.S. 1, 13
(2005) ("Congress devised a closed regulatory system
making it unlawful to manufacture, distribute, dispense, or possess
any controlled substance except in a manner authorized by the
CSA."). The legislative history states that "all persons engaged
in the legitimate distribution chain involving drugs included in
one of the schedules under the bill must be registered with the
Attorney General." H.R. Rep. No. 91-1444 (1970), reprinted in 1970
U.S.C.C.A.N. 4566, 4589 (emphasis added); see also 21 U.S.C. § 822
(a)(1) (requiring "[e]very person" who distributes controlled substances to register with the Attorney General (emphasis added)). 19 Subchapter I of Title 21, Chapter 13 of the United States Code extends from21 U.S.C. § 801
to § 904.
-38-
or any possession of the United States, who
shall be lawfully engaged in the enforcement
of any law or municipal ordinance relating to
controlled substances.
Id. § 885(d) (emphasis added); see also H.R. Rep. No. 91-1444
(1970), reprinted in 1970 U.S.C.C.A.N. 4566, 4625 (explaining that
this provision "exempts federal officers from liability when
lawfully engaged in enforcing Title II and further exempts state
and local officers when lawfully engaged in enforcing any law
relating to controlled substances"). There has never been any
claim at trial or on appeal that these defendants are entitled to
that immunity.
This provision protects accepted law enforcement tactics
such as sting or reverse-sting operations in which officers handle
and transfer drugs,20 the transfer of suspected drugs to DEA
laboratory agents for analysis,21 or to a clerk of court in the
20
The Supreme Court has been clear, in the entrapment context,
that law enforcement officers may engage in undercover sting or
reverse-sting operations to ensnare drug dealers. See United
States v. Russell, 411 U.S. 423, 432
(1973); see also Hampton v. United States,425 U.S. 484, 489-90
(1976) (plurality opinion). We have likewise explained that "[i]t is incontrovertible that the government may supply drugs to a suspect in the course of a drug investigation." United States v. Santana,6 F.3d 1, 5
(1st Cir.
1993) (collecting cases). These defendants do not fall within that
category and do not argue that they do.
21
The Attorney General has promulgated regulations exempting
certain officials from registration requirements. See 21 C.F.R. § 1301.24
(entitled "Exemption of law enforcement officials"); see alsoid.
§ 1301.01 (explaining that this regulation applies to21 U.S.C. §§ 821-824
and §§ 957-958). These regulations extend the
protections of § 885(d) and waive the requirement of registration
as to registered laboratories and their personnel, "when acting in
-39-
course of presenting evidence at trial, none of which could give
rise to prosecution under § 841.
Because only those officers "lawfully" enforcing the
controlled substances laws are protected under § 885, the existence
of § 885(d) evidences that law enforcement officials who do not
fall within that immunity and who exceed lawful enforcement
techniques may be prosecuted under the statute. Police officers
who plant drugs on persons in order to create a false basis for
arrest are not "lawfully engaged" in law enforcement activities,
and thus under the plain language of the statute they may be
prosecuted for distribution. Further, Congress contemplated that
the provisions of the Comprehensive Drug Abuse Prevention and
Control Act of 1970 would apply to the unlawful conduct of law
enforcement officers, like the conduct at issue here, or there
would be no reason to have enacted this provision.
Indeed, a plurality of the Supreme Court has explained
that "[i]f the police engage in illegal activity in concert with a
defendant beyond the scope of their duties the remedy lies, not in
freeing the equally culpable defendant, but in prosecuting the
police under the applicable provisions of state or federal law."
Hampton v. United States, 425 U.S. 484, 490
(1976) (plurality the scope of their official duties."Id.
§ 1301.24(c). These
regulations also make clear that distribution of drugs between
officials who are all "exempted by this section" and "acting in the
course of [their] official duties" falls within the exemption. Id.
§ 1301.24(b).
-40-
opinion) (emphasis added). This was said in the context of
rejecting a defendant's argument that the conduct of law
enforcement agents in a reverse-sting narcotics operation required
vacating the defendant's conviction. See id.
Moreover, the immunity in § 885 is itself subject to two
limits, evidencing that officers who exceed their authority are not
to be given immunity. Officers whose conduct violates 18 U.S.C. § 2234
or § 2235 are not entitled to immunity. See21 U.S.C. § 885
(d). Section 2234 provides a criminal penalty for any person who "in executing a search warrant, willfully exceeds his authority or exercises it with unnecessary severity."18 U.S.C. § 2234
. Section 2235 provides a criminal penalty for "[w]hoever maliciously and without probable cause procures a search warrant to be issued and executed."Id.
§ 2235. These provisions evidence that
Congress expressly intended that officers engaged in unlawful
search and seizure techniques are not entitled to immunity under
§ 885 and may therefore be prosecuted under the Act.22
22
Congress has emphasized the harm that unlawful conduct of law
enforcement officers engaged in undercover activities can cause.
A 1982 Senate Report noted, in the course of proposing reforms in
response to the Abscam sting operation, that
[l]aw enforcement agents should not engage in serious and
harmful criminal activity, or intentionally injure
innocent third parties, in an attempt to deter crime.
There is little doubt that the costs of such tactics --
both to the target and to society -- are likely to
outweigh by a substantial amount the benefits gained
through deterrence of crime.
-41-
Here, these defendants were not "lawfully engaged in the
enforcement of any law or municipal ordinance relating to
controlled substances." The evidence was overwhelming that their
actions were taken in violation of official duties. Indeed,
defendants do not even argue that § 885 applies to their conduct.
There is a good reason for that. The defense is unavailable.
These actions were not authorized by the functions of their law
enforcement positions.23 To apply the statute to the conduct of
these defendants is neither absurd nor does it threaten, in the
least, accepted law enforcement techniques.24 Moreover, the federal
S. Rep. No. 97-672, at 11 (1982) (citation omitted).
23
Cf. United States v. Mack, 164 F.3d 467, 473
(9th Cir. 1999)
("The special attributes of government agencies that justify their
regulated possession of contraband are nowhere to be found in this
set of disquieting facts . . . .").
24
The Attorney General has promulgated a set of Guidelines
governing the FBI's use of undercover operations that recognize
that "use of undercover techniques . . . is essential to the
detection, prevention, and prosecution of . . . offenses involving
controlled substances," but that "these techniques . . . should be
carefully considered and monitored." Attorney General's Guidelines
on FBI Undercover Operations § I (May 30, 2002), available at
http://www.justice.gov/oig/special/0509/appendices.pdf. These
Guidelines provide that "[e]xcept when authorized pursuant to these
Guidelines, no undercover employee shall engage in any activity
that would constitute a violation of Federal, state, or local law
if engaged in by a private person acting without authorization."
Id. § IV.H. Illegal conduct may be engaged in "to obtain
information or evidence necessary for the success of the
investigation and not reasonably available without the
participation in the otherwise illegal activity," to establish or
maintain cover, or to prevent death or serious bodily injury. Id.
§ IV.H(1). Undercover operations, including contemplated illegal
activities, must be approved by the FBI Special Agent in Charge,
including in circumstances involving "the controlled delivery of
-42-
government, acting through the United States Attorney for Puerto
Rico, has taken the position that such prosecution is permissible
and appropriate under § 841.
The dissent argues that the statute must be interpreted
to preclude these prosecutions because there have been no decisions
on prosecutions under § 841 for the planting of drugs as here
(albeit there have been reported decisions under § 841 for other
illegal actions by police, such as distributing drugs for sale).25
But whether prosecutors exercise their discretion to prosecute does
not say anything about the scope of an enacted statute. Further,
that there are no reported decisions on these precise facts says
nothing about the incidence rate of similar misconduct (which one
hopes is rare) and nothing about whether similar prosecutions were
brought but did not result in reported decisions. Moreover,
drugs which will not enter commerce." Id. § IV.H(5)(a). The
Guidelines require preparation for, as well as monitoring and
periodic review of, all undercover operations, to guard against
abuses. Id. § VI.
25
See, e.g., United States v. Wright, 634 F.3d 770, 775-77
(5th Cir. 2011) (rejecting defense under § 885(d) as to deputy sheriff found guilty of attempting to possess with the intent to distribute cocaine), cert. denied,132 S. Ct. 171
(2011); United States v. Sanchez-Berrios,424 F.3d 65, 71-72
(1st Cir. 2005) (affirming the convictions of three officers for conspiring to distribute over five kilograms of cocaine); United States v. Serrano-Beauvaix,400 F.3d 50, 52
(1st Cir. 2005) (affirming convictions of an officer and former officer for conspiracy to distribute over five kilograms of cocaine); United States v. Reeves,730 F.2d 1189, 1195-96
(8th
Cir. 1984) (rejecting defense under § 885(d) as to sheriff and his
deputy found guilty of conspiracy to distribute and distribution of
marijuana).
-43-
Congress and the Constitution have given the Executive Branch some
prosecutorial discretion as to when to prosecute. No such
discretion is given to the Judicial Branch to invalidate
convictions on the basis of whether or not there have been few
prosecutions on similar facts in the past. Here there have been
widespread and well-documented abuses of local police power in this
jurisdiction, particularly as to the massive criminal drug
conspiracies which afflict Puerto Rico. See, e.g., United States
v. Flecha-Maldonado, 373 F.3d 170, 172, 174
(1st Cir. 2004).
Defendants do not claim there was some improper motive for the
prosecution, nor could there have been. Indeed, bringing
prosecutions to deter such conduct is entirely appropriate.
In short, both the language and the intent of § 841(a) is
such that it applies to the conduct at issue in this case.
2. Specific Intent to Distribute
We turn to the defendants' argument that the evidentiary
record does not support a conspiracy with the object of possessing
controlled substances with an intent to distribute under 21 U.S.C. §§ 841
(a)(1) & 846.
As said, specific intent requires a showing that the
defendant intended the proscribed outcome as his purpose. Dyer,
589 F.3d at 528
. In the context of a charge of conspiracy to "possess with intent to . . . distribute" controlled substances,21 U.S.C. § 841
(a)(1), the relevant specific intent the defendants
-44-
must have is a specific intent "to distribute" the controlled
substances, see, e.g., United States v. Rivera-Donate, 682 F.3d 120, 133
(1st Cir. 2012) ("To prove the underlying offense of
'possession with intent to distribute, the government must show
that the defendants knowingly and intentionally possessed, either
actually or constructively, a controlled substance with the
specific intent to distribute.'" (quoting García-Carrasquillo, 483 F.3d at 130
) (emphasis added)). The evidence is that there was a
transfer of drugs between the officers followed by the planting of
drugs to facilitate arrests, which amounts to distribution; it
follows that the intent to take those actions satisfies the
specific intent requirement of the statute.
The relevant intent here is the "intent to distribute."
The dissent argues that because the officers' intent was to
fabricate cases by planting evidence, the officers cannot have had
the specific intent to distribute the drugs. This argument
conflates the specific intent to distribute required by the statute
with the very different question of the ultimate objective. Only
the former is an element of the statute; the ultimate objective is
not a part of the statutory test. That this was Congress's intent
is shown not only because there is no reference to the ultimate
objective as a matter of statutory language, but also because
Congress decided not to make buying or selling elements of the
offense. What matters as to specific intent is that the defendant
-45-
intended to transfer the drugs to someone else.26 See Boidi, 568 F.3d at 29
; Cormier,468 F.3d at 70
n.3; Santistevan,39 F.3d at 255
n.7.
The dissent also suggests that specific intent to
distribute the drugs requires that the defendant intend to either
further the incidence of drug abuse or intend to introduce or
circulate the drugs into society's illicit drug market channels.
This is not the test for specific intent under § 841, and no court
has so held.
26
Even so, the evidence is that the officers did intend to
introduce the drugs into society's illicit channels -- the victims
had to be in unlawful possession of the drugs in order for the
officers to achieve a "positive" result. Indeed, the evidence
shows that the officers repeatedly transferred the drugs to known
drug leaders and dealers, often leaving drugs somewhere on the drug
dealer's property so that the drugs would be "discovered" by other
officers.
Further, the record would permit a jury to find that the drugs
did not always or necessarily remain under the control of the
planting officers. For example, at the home of Omayra Segarra,
a/k/a "Puchi," a known drug leader, Officer Vélez left cocaine on
a shelf in a closet. Vélez testified that he thereafter left the
closet, and that he did not know whether anyone found the cocaine
planted in the closet.
The record also permits a finding that planted drugs were not
always returned to the black box. Bosques testified that generally
when he seized drugs, the drugs were placed in evidence envelopes
and stored in his locker "for a few days" before he handed them in
for processing.
Muñiz likewise testified that recovered drugs "must be deposited
inside an envelope, an evidence envelope, and be stored in a locker
we have for those purposes." In order to successfully prosecute,
the drugs would be used as evidence.
-46-
The dissent further argues that the specific intent to
commit this particular offense cannot be inferred from the actions
undertaken by defendants to distribute the drugs. We disagree.
The defendants were not charged with distribution; they were
charged with conspiracy to possess with intent to distribute
controlled substances. The fact that the defendants did in fact
distribute the drugs is quite properly considered in determining
whether the defendants had earlier entered into a conspiracy to
possess with intent to distribute such drugs. See United States v.
Coleman, 584 F.3d 1121, 1125
(8th Cir. 2009) (evidence that the defendant "repeatedly provided crack" to individuals for resale "alone provided a sufficient basis to infer that [the defendant] knowingly and intentionally joined an agreement to distribute crack"); United States v. Smith,233 F. App'x 297, 300
(4th Cir.
2007) ("By assisting Smith in the actual distribution of crack
. . . , it was reasonable for the jury to infer that Carr knew
Smith was involved in the illegal distribution of a controlled
substance and knowingly participated in Smith's possession of crack
cocaine with the intent to distribute."); United States v.
Childress, 58 F.3d 693, 728-29
(D.C. Cir. 1995) (defendant's acts of delivering bags containing drugs "would normally support an inference that he had the specific intent to further the object of the conspiracy" to distribute and to possess with intent to distribute); United States v. Douglas,874 F.2d 1145
, 1159 n.24
-47-
(7th Cir. 1989) (where defendant "was charged with conspiracy to
possess with intent to distribute," the "[e]vidence of [the
defendant's] drug distribution before and after the purchases from
[another individual] is probative of [the defendant's] intent with
regards to the drugs he bought . . . did he possess the drugs with
intent to distribute them?"); United States v. Thomas, 551 F.2d 347, 348
(D.C. Cir. 1976) (per curiam) (where defendant is charged
with possession with intent to distribute, testimony that an
"actual drug sale" took place is "directly probative" of the
defendant's intent to distribute the drug).
Further, the evidence, "taken as a whole and in the light
most favorable to the prosecution," United States v. Lopez-Lopez,
282 F.3d 1, 19-20
(1st Cir. 2002), would permit a rational jury to
determine beyond a reasonable doubt that the defendants were guilty
of conspiring to possess with intent to distribute a controlled
substance in violation of § 841(a)(1) and § 846.
The evidence at trial included the testimony of three co-
conspirators: Lieutenant Dennis Muñiz, the director of the Division
from 2005 to 2007, as well as Luis Vélez and José Bosques, two
officers in the Division. All three witnesses described the
distribution chain, namely the pattern by which Santiago and Muñiz
would distribute illegal drugs to officers with instructions to
transfer the evidence to the victim's person, property, or presence
in order to yield a "positive" search. The testimony identified
-48-
the active participants in the scheme, which included all three of
the defendants here. This testimony was corroborated by a series
of audio and video recordings showing that the defendants
transferred the drugs both amongst one another and to the victims.
The witnesses described particular instances in which at
least one of the defendants transferred drugs to the victims, many
of whom were known drug leaders and dealers. All three defendants
were identified as having participated in at least one such
planting. The drugs were generally transferred to the drug
leaders' property or presence in the hope that other officers would
subsequently discover them and arrest the victim before the drugs
could be transferred again. For example, at the home of Omayra
Segarra, a/k/a "Puchi," a known drug leader, the drugs were left
both on a shelf in the closet and in Puchi's vehicle. Other
officers eventually came upon the planted evidence and used it to
make an arrest. Similarly, at José "El Monstruo's" home, the drugs
were left in a closet next to the bathroom before any officers
initiated a search. Other officers later came upon the evidence
when searching and, again, used it to make an arrest. At two
housing projects, Monte Isleño and the Columbus Landing project,
both of which were known sites of drug activity, the drugs were
placed in a bureau drawer and a pile of men's shoes, respectively,
and left there to be later discovered by other searching officers.
-49-
To the extent the defendants challenge the credibility of
the government's witnesses, our sufficiency analysis does not
permit us to "'assess the credibility of a witness, as that is a
role reserved for the jury.'" United States v. Rivera–Rodríguez,
617 F.3d at 595
n.6 (quoting United States v. Troy,583 F.3d 20, 24
(1st Cir. 2009)); see also United States v. Calderon,77 F.3d 6, 10
(1st Cir. 1996) ("It [is] well within the jury's province for it to
choose to believe the testimony of [the defendant's] accomplices --
in the face of . . . cross-examination of their characters and
motives -- and to disbelieve [the defendant's] version of the
story."). In any event, the testimony of each witness was
corroborated, not only by the testimony of the other witnesses, but
also by the audio and video recordings.
The evidence of a conspiracy to possess with intent to
distribute goes beyond the officers' actual physical acts of
transferring and planting of drugs, and includes numerous instances
of discussion as to distribution and planting of drugs among the
officers before, during, and after the arrests. The witnesses
testified that the defendants regularly met at the Division before
executing a search warrant, at which point Santiago would hand out
drugs to agents with instructions to transfer the drugs to the
-50-
victims' persons, property, or presence in order to fabricate a
"positive" search.27
The testimony also identified several instances in which
the co-conspirators did the planting in teams and/or discussed with
one another the incidents of evidence planting. The witnesses also
testified that, when the FBI executed a search warrant to locate
and seize the black box, several of the co-conspirators met to try
to concoct an alibi for their possession of the box and the drugs
it contained.
We conclude that the verdict here was "supported by a
plausible rendition of the evidence," taken as a whole and in the
light most favorable to the prosecution, and so we do not disturb
the jury's verdict. Lopez-Lopez, 282 F.3d at 19-20
. We
acknowledge that our result is driven by the plain language of the
statute and its history, and that Congress may not have anticipated
27
Muñiz testified that he and Santiago discussed to which officers
Santiago had distributed drugs for the purpose of fabricating
arrests, and that the drugs were "distributed" during meetings at
the office, while they were preparing documents before going out to
make arrests. Vélez testified that before going out on arrest
operations, they met in either Santiago's or Muñiz's office to
discuss "the work that was going to be done, the plan" as to the
arrests. There were planning meetings before operations, where the
planting of drugs was planned. Santiago and Muñiz would often,
during the search operations, give instructions over the phone that
the search had to result in an arrest.
Bosques testified about asking Cortés for heroin, to justify an
arrest that he had made, and that Cortés provided him with the
drugs. Vélez testified that Domínguez requested that Vélez provide
him with drugs from the black box, for the purpose of
substantiating an arrest already made.
-51-
this precise scenario in writing the statute. If Congress
disagrees with this outcome, it is free to amend the statute. The
defendants' convictions under count two are affirmed.
C. Sentencing Challenges
Appellants Domínguez, Santiago, and Ruperto raise
individual challenges to their respective sentences. We address
each challenge in turn. We review the district court's
interpretation and application of the sentencing guidelines de novo
and factual findings for clear error. United States v. Aguasvivas-
Castillo, 668 F.3d 7, 13
(1st Cir. 2012).
1. Domínguez's Challenge
Domínguez argues that the district court erred in its
determination of the drug quantity to use in sentencing Domínguez
for his role in the conspiracy as to count two. This challenge
fails.
The district court sentenced Domínguez to 40 months'
imprisonment as to count one and 78 months' imprisonment as to
count two, to be served concurrently, based on a guidelines range
of 78 to 91 months.28 The district court found that counts one and
two resulted in a combined base offense level of 28, and that no
28
On January 12, 2012, the district court reduced the sentence as
to count two to 60 months' imprisonment, as was stipulated by the
parties, in light of the retroactive changes to the sentencing
guidelines promulgated in response to the Fair Sentencing Act of
2010. See United States v. Curet, 670 F.3d 296, 308-10
(1st Cir. 2012) (discussing the Act and the retroactive changes to the guidelines), cert. denied,132 S. Ct. 2728
(2012).
-52-
adjustments applied. The base offense level for count two was
calculated based on the quantity of drugs involved in the offense.
See U.S.S.G. § 2D1.1(a)(3) (2008).
The quantity of drugs the district court used for
guidelines calculations purposes was the quantity of drugs seized
when the FBI searched the defendants' offices on July 17, 2007,
which amounted to 6.8 grams of crack cocaine, 3.91 grams of heroin,
and 86.4 grams of marijuana. These drugs were found in three
locations: the black box, an area of Santiago's office, and a
hiding spot in the ceiling. This translated to a drug quantity
value of between 100 and 400 kilograms of marijuana. See id.
§ 2D1.1 cmt. n.10(B) (2008) (stating that the drug equivalency
tables in the guidelines "provide a means for combining differing
controlled substances to obtain a single offense level").
Under the guidelines, although advisory, the quantity of
drugs attributable to a defendant for sentencing purposes is based
on both the charged conduct and the relevant uncharged conduct.
United States v. González-Vélez, 587 F.3d 494, 508
(1st Cir. 2009);
see also U.S.S.G. § 1B1.1 cmt. n.1(H) (2008) (defining the term
"[o]ffense" as including "the offense of conviction and all
relevant conduct under § 1B1.3"). Relevant conduct includes, "in
the case of a jointly undertaken criminal activity . . . all
reasonably foreseeable acts and omissions of others in furtherance
of the jointly undertaken criminal activity." U.S.S.G.
-53-
§ 1B1.3(a)(1)(B) (2008). Accordingly, in the drug conspiracy
context, "each coconspirator is responsible not only for the drugs
he actually handled but also for the full amount of drugs that he
could reasonably have anticipated would be within the ambit of the
conspiracy." United States v. Santos, 357 F.3d 136, 140
(1st Cir.
2004).
We review drug quantity determinations in two steps.
First, we review de novo "whether the district court's drug
quantity determination was based on an individualized
determination" of the "quantity of drugs attributable to, or
reasonably foreseeable by, the offender." United States v.
Cintrón-Echautegui, 604 F.3d 1, 5
(1st Cir. 2010). If the district court made such an "individualized determination, our review is for clear error."Id.
Domínguez contends that the district court erred in
determining that he was sufficiently close to the conspiracy such
that the quantity of drugs seized was reasonably foreseeable to
him. We reject this challenge.
The district court made an individualized determination.
The district court recognized that the amount of drugs seized could
not be attributed to Domínguez unless the drugs were reasonably
foreseeable to Domínguez. The district court found that this was
a closely knit conspiracy to plant drugs to obtain arrests, that
Domínguez knew about the black box being one of the sources of
-54-
drugs, and had been seen with the black box. The district court
also found that Domínguez was close to the leaders of the
conspiracy and had participated in two acts of planting drugs, at
least one of which was with drugs from the black box.29 The
district court concluded, based on this evidence, that the quantity
of drugs seized was reasonably foreseeable to Domínguez.
Because an individualized determination was made, clear
error review applies. We will only reverse for clear error if
"upon whole-record review, an inquiring court 'form[s] a strong,
unyielding belief that a mistake has been made.'" Id.
at 6 (quoting Cumpiano v. Banco Santander P.R.,902 F.2d 148, 152
(1st
Cir. 1990)).
There was no clear error. Domínguez does not dispute the
quantity of drugs seized, but rather only argues that the quantity
was not reasonably foreseeable to him. It was not clear error for
the district court to find the quantity reasonably foreseeable to
him, given the evidence outlined above. We affirm Domínguez's
sentence.
29
One of these events involved Domínguez requesting two bags of
crack cocaine from the black box, which Vélez provided to him, for
use in substantiating an arrest. The second was an instance where
an individual was arrested by Domínguez for possession of cocaine
even though no cocaine was found.
In a separate event, in early July 2007, Domínguez provided
Bosques with several bags of cocaine and marijuana.
-55-
2. Santiago's Challenge
Santiago challenges the district court's imposition of a
three-level enhancement for his role in the offense under U.S.S.G.
§ 3B1.1(b).30 Santiago also asserts, but does not develop an
argument, that his sentence as a whole is unreasonable. Both
challenges fail.
Section 3B1.1(b) provides that "[i]f the defendant was a
manager or supervisor (but not an organizer or leader) and the
criminal activity involved five or more participants or was
otherwise extensive, increase by 3 levels." Id. Santiago concedes
that "the criminal activity involved five or more participants or
was otherwise extensive," but argues that he was not a "manager or
supervisor" within the meaning of the provision, and so the
enhancement was unwarranted. This argument fails.
While the guidelines do not define the term "supervisor"
or "manager," we have held that "[e]vidence of the defendant's role
in the conspiracy 'may be wholly circumstantial,' and need only
show that he 'exercised authority or control over another
participant on one occasion.'" United States v. Flores-de-Jesús,
569 F.3d 8, 34
(1st Cir. 2009) (quoting United States v. García- Morales,382 F.3d 12, 19-20
(1st Cir. 2004)); see also United States v. Cruz,120 F.3d 1, 3
(1st Cir. 1997) (en banc) (stating
30
Neither party states to which count this enhancement was
applied. Since we affirm the enhancement, we need not address the
matter.
-56-
that the analogous enhancement based on "organizer, leader,
manager, or supervisor" status in U.S.S.G. § 3B1.1(c) applies if
"the defendant, in committing the offense, exercised control over,
organized, or was otherwise responsible for superintending the
activities of, at least one of those other persons"). For the
enhancement to apply, it is not enough to show that "the defendant
merely controlled, organized, or managed criminal activities;
rather, he must instead control, organize, or manage criminal
actors." Flores-de-Jesús, 569 F.3d at 34
(quoting United States v. Ofray-Campos,534 F.3d 1, 40
(1st Cir. 2008)) (internal quotation
marks omitted).
In this case, there was extensive testimony as to
Santiago's role in supervising or managing the conspiracy.
Santiago's official position was as a supervisor in the division.
The witnesses testified that Santiago was in charge of maintaining
the black box and distributing the drugs to the other officers
before search operations. When Santiago was out of town in July
2007, he transferred the box to Vélez, so that Vélez could provide
the officers drugs in his absence. During a variety of searches,
Santiago issued instructions as to the planting of drugs. For
instance, before the search of José "El Monstruo's" home, Santiago
provided bags of cocaine and marijuana to Vélez, with instructions
to wait for a call from Santiago and Muñiz; Santiago and Muñiz
called Vélez during the search with instructions to plant the
-57-
drugs. Similarly, before the search of "Puchi's" residence,
Santiago provided Vélez with cocaine and marijuana along with
instructions that the search had to result in an arrest. Santiago
later arrived at the scene, after discussing the situation with
Vélez over the phone. When Vélez protested that he did not want to
plant the drugs, Santiago told him to do so, and Vélez complied;
Santiago later instructed Vélez to retrieve the drugs, and Vélez
again complied. Bosques testified that "Santiago was the one who
ordered me to do whatever work."
In light of this evidence, the district court did not err
in finding that Santiago "exercised authority or control over
another participant on [at least] one occasion." Id.
(quoting
García-Morales, 382 F.3d at 19-20 (internal quotation marks
omitted).
Santiago also asserts without analysis that the overall
sentence was unreasonable, and so has waived this challenge. Even
bypassing waiver, the argument fails on its own terms. The
district court properly calculated the guidelines range, so we
review the reasonableness of the sentence for an abuse of
discretion. Gall v. United States, 552 U.S. 38, 51
(2007); United States v. Ozuna-Cabrera,663 F.3d 496, 503
(1st Cir. 2011), cert. denied,132 S. Ct. 1936
(2012). The district court considered the sentencing factors outlined in18 U.S.C. § 3553
(a), including
Santiago's years of service, and concluded that it was appropriate
-58-
to sentence Santiago "to the lower end of the applicable
guidelines." The applicable guidelines range was 108 to 135
months, and the district court sentenced Santiago to 108 months'
imprisonment for count one as well as count two, to be served
concurrently.31 Santiago bears a "heavy burden" of showing that
this sentence within the guidelines range was unreasonable, which
he has not met. Ozuna-Cabrera, 663 F.3d at 504
. Further, "a sentence will withstand a substantive reasonableness challenge so long as there is 'a plausible sentencing rationale and a defensible result,'" as was the case here.Id.
(quoting United States v. Martin,520 F.3d 87, 96
(2008)). Santiago's challenge fails and we
affirm his sentence.
3. Ruperto's Challenge
Ruperto asserts that the district court erred in applying
the sentencing guidelines when determining his sentence. We review
the district court's interpretation of the sentencing guidelines de
novo. United States v. Sicher, 576 F.3d 64, 70
(1st Cir. 2009).
Ruperto argues that the district court erred when it
computed his advisory guideline range because it applied U.S.S.G.
31
On March 21, 2012, the district court reduced the sentence as
to both counts to 78 months' imprisonment, as was stipulated by the
parties, in light of the retroactive changes to the sentencing
guidelines promulgated in response to the Fair Sentencing Act of
2010.
-59-
§ 2J1.2,32 which he asserts is not applicable to his underlying
offense, instead of U.S.S.G. § 2H1.1.33 A review of the record
establishes that the district court did as appellant zealously
advocates it should have done and applied § 2H1.1.
The record shows that the district court held two
hearings concerning Ruperto's sentencing. During the second
hearing, held on July 31, 2009, the district court decided to apply
guideline 2H1.1. The transcript from that hearing reveals the
following exchanges:
[Appellant's Counsel]: As we addressed in our
opposition to the Government's informative
motion, we represent no opposition to
guideline 2H1.1 and the 12 level base offense
level that is contained there.
The Court: That[, guideline 2H1.1,] is the
one I am going to use.
* * * *
[Appellant's Counsel]: . . . And we are
basically in agreement with the Court that
2H1.1 is the guideline to apply in this case.
The Court: 2H1.1 is the one I'm going to
apply.
* * * *
32
The term "U.S.S.G." refers to the United States Sentencing
Guidelines.
33
Section 2J1.2 of the sentencing guidelines specifically applies
to convictions for obstruction of justice, which are not at issue
in this case. U.S.S.G. § 2J1.2. Section 2H1.1 applies to
convictions for offenses involving individual rights. U.S.S.G.
§ 2H1.1.
-60-
The Court: . . . Since the Defendant was a
public official at the time of the offense and
the offense was committed under color of law,
a six level increase is applied pursuant to
United States Guidelines 2H1.1(b)1.
* * * *
The Court: Yes, this Defendant's report
should also be amended to include the
following, the 2H1.1, the six-level increase
and the four levels of supervisory conduct.
(Emphasis added).
Ruperto, in essence, is stepping up to the plate when the
players have already cleared the field. We find no error in the
district court's interpretation or application of the sentencing
guidelines to Ruperto, and we therefore affirm.
III. Conclusion
We are both disturbed and disheartened by the incidents
underlying this appeal. Appellants, as police officers, held
positions of authority that society regards with admiration and
respect, and which it trusts to safeguard our freedoms, not
infringe upon them; to protect us from harm, not be the instigator
thereof; and to stand the post, not be the cause for the watch. As
often echoed, with great power comes great responsibility,34 and
appellants showed themselves susceptible to corruption's tarnishing
34
Perhaps one of the best known original sources of this phrase
is from the comic book, Spider-Man. See Amazing Fantasy #15
(Marvel Comics, August 1962). It is also believed to have possibly
originated with Voltaire. See Voltaire, et al., 48 Oeuvres de
Voltaire (Lefèvre, 1840).
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influence often found lapping at the shores of such power. Simply
put, appellants disregarded the honorable integrity of their
guardian role, and civil liberties were dealt the tragic blow. We
can express no greater disapproval or remorse than this: we are
saddened and indignant that today, it falls to us to assume the
role of guarding the guardians.
Affirmed.
"Dissenting Opinion as to Part II.B, Part II.C.1.,
and Part II.C.2 follows"
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TORRUELLA, Circuit Judge, dissenting as to Part II.B,
Part II.C.1, and Part II.C.2. As stated in Part II.A of my opinion
for the court, my colleagues and I agree that the record supports
the government's allegations as to count one, i.e., that
appellants' actions in planting drugs for the purpose of
fabricating criminal cases constitutes a violation of 18 U.S.C. § 241
. The government's case charged in count two, however, conspiring to possess with intent to distribute a controlled substance in violation of21 U.S.C. §§ 841
(a)(1) & 846, is a horse
of another color.
I.
On carefully considering the distribution statute's
mental state requirement, legislative history, and the historical
background surrounding its enactment, I believe that my colleagues'
conclusion in Part II.B of the court's opinion -- that the
officers' scheme of possessing and illegally planting controlled
substances with the sole intent to fabricate grounds for a target's
unlawful arrest is tantamount to possession of controlled
substances with an intent to distribute -- asks far too much of
both Congress's purpose in creating such legislation and the
statute's expressly-stated specific intent requirement.
Firstly, I believe my colleagues' analysis incorrectly
centers on whether the officers' actions could properly constitute
"distribution," an issue that is not before us and on which I offer
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no comment. Nor do I believe it appropriate for my colleagues to
go as far as they have and conclusively hold that the officers'
actions here constitute distribution, see Maj. Op. at 45, 47 --
that charge has not been presented to this court, and I believe it
is a question best left unaddressed.
Specifically, the majority on this issue consistently
analyzes appellants' arguments on count two by focusing solely on
their physical acts. See Maj. Op. at 28-29 ("Because the express
language of the statute encompasses defendants' conduct . . . we
affirm their conviction under count two."); (emphasis added); see
also id. at 40
("Congress contemplated that the provisions of the
Comprehensive Drug Abuse Prevention and Control Act of 1970 would
apply to the unlawful conduct of law enforcement officers, like the
conduct at issue here . . . .") (emphasis added). My colleagues
troublingly continue down this path of blurring the distinction
between the actus reus of one crime and the mens rea of another
(distribution versus possession with intent to distribute)
throughout their opinion. See Maj. Op. at 32-33 (citing case law
describing courts' broad construction of distribution); id. at 33
("Defendants' conduct here falls within the language of the
statute.") (emphasis added); id. at 35-36
(noting case law in which
courts have taken a broad approach to what conduct or level of
participation will satisfy the statute's intent-to-distribute
requirement; citing case law concerning whether defendants' acts
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constituted distribution); id. at 42
("To apply the statute to the
conduct of these defendants is neither absurd nor does it
threaten. . . accepted law enforcement techniques.") (emphasis
added); id. at 44
("[B]oth the language and the intent of § 841(a)
is such that it applies to the conduct at issue in this case.").
Our concern on this appeal, however, is not the
appellants' conduct, but rather, the question of whether they held
the requisite statutory mental state at the time they planted the
drugs. Indeed, the officers here were not charged with the
physical act of distribution; rather, they were charged with
possession of controlled substances with the particular mental
intent to distribute, a crime requiring a higher mental showing
than the act of distribution. To conclude otherwise, as my
colleagues now do, waters down the law's specific intent element to
nothing more than a general intent requirement.
Furthermore, I harbor serious misgivings as to my
colleagues' analytical approach because I believe it has the
unwanted effect of removing the statute from its firmly planted and
long-acknowledged legislative moorings. As discussed infra,
Congress's purpose in enacting the statute at issue (as confirmed
by its historical background and legislative history) was to target
the twin evils of drug abuse (in the form of personal consumption)
and drug trafficking (in the sense of injection of drugs into
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society's illicit channels). Significantly, neither of these
elements is at play here.
Finally, I believe my reading of the statute's
prohibition against possession of controlled substances with an
intent to distribute as requiring a higher mental showing than
simply an intent to physically move a controlled substance is
supported by the fact that no other judgment ever has been issued
sustaining the government's novel interpretation, namely, that an
intent to falsify cases through planting evidence is commensurate
with an intent to commit drug distribution. In fact, the entire
sweep of federal criminal jurisprudence up to the present case
lacks any precedent in which the planting of controlled substances
with the purpose of fabricating criminal charges has been held to
constitute an intent to violate our nation's drug laws. This
dearth of prosecutions and convictions on the books supporting such
a statutory interpretation is not, in my view, coincidental. Nor,
as my colleagues claim, do I believe that it may be explained away
as a simple exercise of prosecutorial discretion; rather, I believe
it is more likely the proper exercise of prosecutorial prudence,
i.e., refraining from overreach.
The judiciary's deafening silence in this respect
naturally follows, however, when one considers the history,
purpose, and administration of Congress's controlled substances
laws, all of which target drug abuse and/or drug trafficking, not
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the charges listed in count two. For these reasons, I respectfully
dissent from the majority's conclusion that the officers here held
the requisite specific intent under 21 U.S.C. §§ 841
(a)(1) & 846.
II.
To prove the substantive offense at issue, possession
with intent to distribute, the government must establish that
appellants "knowingly and intentionally possessed, either actually
or constructively, a controlled substance with the specific intent
to distribute." United States v. García-Carrasquillo, 483 F.3d 124, 130
(1st Cir. 2007) (emphasis added).35 The task at hand boils
down to this: to determine whether appellants' intent to fabricate
cases via planting controlled substances constitutes an intent to
distribute within the meaning of what Congress has proscribed
through the legislation in question.
A. Express Itself: Statute's Plain Language
I begin with the statute's language. See Ernst & Ernst
v. Hochfelder, 425 U.S. 185, 197
(1976) (stating the "starting point in every case involving construction of a statute is the language itself" (quoting Blue Chip Stamps v. Manor Drug Stores,421 U.S. 723, 756
(1975) (Powell, J., concurring)) (internal
quotation mark omitted)); see also Recovery Grp., Inc. v. Comm'r,
35
The government's evidence in support of its count one and count
two convictions is the same. That is, the government points to no
distinguishing evidence from that presented in its count one case
in support of the count two convictions, nor does the record reveal
any such additional evidence.
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652 F.3d 122, 125
(1st Cir. 2011). Section 841(a)(1) of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (the "Act" or "Controlled Substances Act") provides that: "[I]t shall be unlawful for any person knowingly or intentionally" to "possess with intent to . . . distribute . . . a controlled substance."21 U.S.C. § 841
(a)(1). The Act defines "distribute" as "to deliver (other than by administering or dispensing) a controlled substance or a listed chemical."Id.
§ 802(11). It defines "deliver" as
"the actual, constructive, or attempted transfer of a controlled
substance or a listed chemical, whether or not there exists an
agency relationship." Id. § 802(8).
The majority accepts the government's request that the
court's analysis end here and adopt a literal, mechanical reading
of the statute. And at first blush, "distribute," defined under
the broadly-worded language of the statute to include delivery or
transfer of a controlled substance, seems, potentially, to
encapsulate the officers' actions under count two: the officers
took and received controlled substances from one individual and/or
location, brought the drugs to the homes of their targets, and
temporarily placed them in a location cognizant that another
officer would soon thereafter seize the drugs.
But such a literal viewing of the underlying acts --
focusing solely on the objective physical movement of the drugs --
overlooks an important aspect of the plain language of the statute.
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To establish a violation of 21 U.S.C. § 841
(a)(1)'s proscription against possession with intent to distribute, the government must show that the defendant knowingly and intentionally possessed a controlled substance with a very particular subjective purpose: to distribute. See21 U.S.C. § 841
(a)(1) (stating "it shall be unlawful for any person knowingly or intentionally" to "possess with intent to . . . distribute . . . a controlled substance") (emphasis added); United States v. Pomales-Lebrón,513 F.3d 262, 267
(1st Cir. 2008) ("To establish a violation of 21 U.S.C. § 841
, the government must prove that defendant: (1) possessed [controlled substances], 'either actually or constructively,' (2) 'did so with a specific intent to distribute the [controlled substances] over which [he] had actual or constructive possession,' and (3) 'did so knowingly and intentionally.'" (quoting United States v. López- López,282 F.3d 1, 19
(1st Cir. 2002) (third alteration in original)). Thus, if the government cannot show that a defendant had the requisite statutory intent to distribute controlled substances at the time he possessed them, a conviction pursuant to21 U.S.C. § 841
(a)(1)'s proscriptions simply cannot stand. See United States v. Pope,561 F.2d 663, 671
(6th Cir. 1977)
("'[I]ntent to distribute' is an essential element of § 841(a)(1),
[and] the Government retains the burden of proving that element
beyond a reasonable doubt.").
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The majority claims that I confuse the question of
specific intent with overall objective. See Maj. Op. at 36-37, 45-
46. I do no such thing. Specific intent, as discussed infra,
"requires more than a knowing violation of the law," namely, that
"[t]he defendant [] act with a bad purpose or with the objective of
committing the act prohibited by the law." United States v. Dyer,
589 F.3d 520, 533
(1st Cir. 2009) (Torruella, J., concurring in part and dissenting in part) (citing cases). In contrast, motive or "ulterior intent" has been defined as "[t]he intent that passes beyond a wrongful act and relates to the objective for the sake of which the act is done." Black's Law Dictionary 882 (9th ed. 2009); see also United States v. Boardman,419 F.2d 110, 113-14
(1st Cir.
1969) (accepting trial court's jury instruction (for a different
crime) generally distinguishing between motive and intent; noting
trial court's definition of motive as "that which tempts, induces
or moves a person to commit a crime," and intent as "the purpose or
mental state with which the person does the act").
When the officers here performed the disputed acts, they
did not hold the requisite intent to engage in drug distribution;
instead, their intent while planting the drugs was always to
fabricate a case against a particular target in order to effectuate
a seemingly lawful arrest of that mark. The officers' motive, to
the extent relevant, was provided to us in their briefs (the merits
of which we need not and do not consider or address here, see
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United States v. Santistevan, 39 F.3d 250
, 255 n.7 (10th Cir.
1994)):36 to satisfy an alleged Department-mandated arrest quota.
Thus, the majority's contention that my analysis of the officers'
specific intent (i.e., their particular mental state at the time
they planted the controlled substances) is nothing more than an
analysis of the officers' overall objective for performing such
acts (i.e., performing seemingly lawful arrests to satisfy an
alleged arrest quota) incorrectly frames my position.
To my reading, the majority does not adequately explain
how a specific intent crime (possession with intent to distribute)
may require the exact same intent showing as a general intent crime
(distribution). See McKenzie v. Risley, 842 F.2d 1525, 1545
(9th Cir. 1988) (noting "general and specific intent are distinct and different"). Nor do I find the majority's conclusion that the officers' underlying physical acts, if accepted to constitute drug distribution (which the majority does), are sufficient, in and of themselves, to prove a specific intent to distribute. Cf. 36 The majority also cites to Santistevan to support its contention that I confuse the officers' specific intent with their overall motive in performing the contested acts of planting. See Maj. Op. at 36-37, 45-46 (citing Santistevan,39 F.3d at 255
n.7). Notably,
Santistevan only concerns the general intent crime of distribution,
not the specific intent crime at issue here. Moreover, the cited
footnote's discussion addresses the relevance of a defendant's
motive when assessing whether a defendant engaged in the act of
distribution. As I repeatedly emphasize, our focus in this case
should be on the specific intent required for the crime of
possession with intent to distribute, not on the general intent
requisites of the crime of drug distribution.
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Morissette v. United States, 342 U.S. 246, 276
(1952) (fact that defendant performed actus reus of crime was relevant to whether defendant had intent to commit actual act of stealing, but was insufficient for purposes of showing the requisite mens rea of a specific intent to steal or convert property from another); Koehler v. United States,189 F.2d 711, 715
(5th Cir. 1951) (Russell, J., dissenting) (citing cases and noting "the fatal taint inflicted by the language of the judge with reference to the intent legally presumed to follow from the commission of acts," which had the effect of negating the "well established rule of law that where wilfulness is an essential ingredient of an offense the specific intent must be proved as an independent fact and cannot be presumed as a matter of law from the commission of an unlawful act"); Hubbard v. United States,79 F.2d 850, 853
(9th Cir. 1935) (similar). While the act of distribution would undoubtedly be a relevant factor to consider when assessing the officers' mental state, I do not believe (presuming distribution occurred) it should be the only one given the surrounding factual circumstances of this case, a point I address further infra. See United States v. Berrios,676 F.3d 118, 137
(3d Cir. 2012) ("[A] defendant's
specific intent is to be judged '[b]ased upon the totality of all
the surrounding facts and circumstances.' (quoting United States v.
Anderson, 108 F.3d 478, 485
(3d Cir. 1997)) (emphasis added)).
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I thus proceed to address the higher evidentiary intent
bar that the government had to (and in my mind, failed to) clear in
this case.
1. General Intent versus Specific Intent
It is a fundamental principle that the trier of fact
generally must assess both a defendant's actions and mind-set,
splitting a crime into two parts: the actus reus of the crime (a
physical act or omission, the performance (or lack thereof) of
which the legislature has deemed unlawful), and the mens rea of the
person committing the crime (the defendant's intent or mental state
at the time of the crime). When assessing mental intent, courts
generally distinguish between two kinds: general and specific.
The former (general intent) requires a showing that a
defendant intended to perform a certain act. His mental intent,
however, need only be to perform the physical act itself, that is,
the actus reus of a crime; he need not possess any intent to
violate the law. See United States v. Veach, 455 F.3d 628, 631
(6th Cir. 2006) (noting that a general intent crime "requires only that a defendant intend to do the act that the law proscribes" (quoting United States v. Gonyea,140 F.3d 649, 653
(6th Cir. 1998))); United States v. Kleinbart,27 F.3d 586
, 592 n.4 (D.C.
Cir. 1994) ("A general intent crime requires the knowing commission
of an act that the law makes a crime."); United States v. Phillips,
19 F.3d 1565, 1576-77
(11th Cir. 1994) ("[A] defendant need not
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intend to violate the law to commit a general intent crime, but he
must actually intend to do the act that the law proscribes.").
In contrast, where specific intent is required, a
heightened mental state is a sine qua non. The government must
show not only that a defendant had a general intent to perform a
particular act, but also, that he possessed a corresponding mental
state when executing such acts. That is, that the defendant
performed the offending acts with the specific purpose of producing
the law's legally forbidden result, or the desired outcome of
executing the actus reus was in fact to violate the law. See Dyer,
589 F.3d at 528
(describing a specific intent crime as one in which "the defendant specifically intended . . . [the proscribed] outcome as his purpose," or "purposefully and affirmatively desired [the proscribed] unlawful outcome"); see also Morissette,342 U.S. at 265
(stating that a showing of "specific intent or purpose [] will require some specialized knowledge or design for some evil beyond the common-law intent to do injury."); Oduche-Nwakaihe v. Att'y Gen. of U.S.,363 F. App'x 898
, 901 (3d Cir. 2010) ("Specific
intent requires not simply the general intent to accomplish an act
with no particular end in mind, but the additional deliberate and
conscious purpose of accomplishing [the] specific and prohibited
result." (quoting Pierre v. Att'y Gen. of U.S., 528 F.3d 180, 189
(3d Cir. 2008)) (internal quotation mark omitted in original)).
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Notably, § 841(a)(1) is not a crime of general intent,
but rather, of specific intent. See United States v. Pelletier,
666 F.3d 1, 11
(1st Cir. 2011); Dyer,589 F.3d at 534
("[I]n the
drug-trafficking context, we have consistently held that to prove
possession with intent to distribute in violation of 21 U.S.C. § 841
, the government must establish that the defendant knowingly and intentionally possessed a controlled substance with specific intent to distribute."); García-Carrasquillo,483 F.3d at 130
.
Thus, the government shoulders the burden of establishing
that the defendants here had the particular purpose of committing
the unlawful act of narcotics distribution when in possession of
the controlled substances. See Clark v. Arizona, 548 U.S. 735, 766
(2006) ("[A] defendant is innocent unless and until the government
proves beyond a reasonable doubt each element of the offense
charged, including the mental element or mens rea." (internal
citations omitted)). While there is evidence in the record to
support the defendants' possession of controlled substances, no
evidence supports the finding that their intent when receiving
drugs from "the box" and planting them in their targets' residences
was for any other purpose than fabricating false cases.
It is well-accepted that specific intent -- an intangible
concept -- may be established by either direct or circumstantial
evidence. See United States v. Cannon, 589 F.3d 514, 517
(1st Cir. 2009); United States v. DesMarais,938 F.2d 347, 352
(1st Cir.
-75-
1991) ("Seldom can 'specific intent' be established by direct
evidence . . . . [but it may] [n]evertheless . . . be demonstrated
'through the use of circumstantial evidence so long as the total
evidence, including reasonable inferences, is sufficient to warrant
a jury to conclude that the defendant is guilty beyond a reasonable
doubt.'" (quoting United States v. Campa, 679 F.2d 1006, 1010
(1st
Cir. 1982))). Given the challenges presented in proving an
individual's subjective mental state, both this court and our
sister courts have recognized that a specific intent to distribute
controlled substances may be inferred from various factors. These
factors include, among others, (1) the quantity of drugs in a
defendant's possession,37 (2) the purity of the drugs at issue,38
(3) the quantity of cash on a defendant,39 (4) the manner in which
37
United States v. Cormier, 468 F.3d 63, 71
(1st Cir. 2006); United States v. Rivera-Ruíz,244 F.3d 263, 269
(1st Cir. 2001); United States v. Latham,874 F.2d 852, 862-63
(1st Cir. 1989)
(collecting cases supporting the notion that "possession of large
quantities of drugs justifies the inference that the drugs are for
distribution").
38
United States v. Echeverri, 982 F.2d 675, 678
(1st Cir. 1993). 39 United States v. Ayala-García,574 F.3d 5, 13
(1st Cir. 2009); United States v. Mangual-Santiago,562 F.3d 411, 425
(1st Cir.
2009).
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the drugs were packaged,40 (5) the presence of drug paraphernalia,41
(6) the lack of any evidence showing a defendant used or consumed
the type of drug seized,42 (7) the presence of firearms,43 (8) a
defendant's history of participation in drug distribution,44 or
(9) a combination of the above.45 Notably, such precedent for
40
Ayala-García, 574 F.3d at 13
(finding that "the packaging alone," consisting of ninety plastic cylinders of cocaine, forty- four plastic bags of cocaine, and fifty-six aluminum wrappings of heroin, "was strong circumstantial evidence that the drugs were intended for distribution"); García-Carrasquillo,483 F.3d at 130
n.12.
41
United States v. García, 983 F.2d 1160, 1165
(1st Cir. 1993); DesMarais,938 F.2d at 352
(noting that "[a] reasonable inference of specific intent to distribute" was supported "by the presence of drug paraphernalia, including a triple beam scale, plastic baggies, and magazines with current marijuana prices"); United States v. Butler,763 F.2d 11, 15
(1st Cir. 1985). 42 See United States v. Andrade,94 F.3d 9, 13
(1st Cir. 1996) (noting fact that defendant did not have any "implements" with which to smoke crack as factor supporting inference of intent to distribute). 43 Cannon,589 F.3d at 518
; United States v. Rivera-Calderón,578 F.3d 78
, 94 (1st Cir. 2009). 44 United States v. Landrau-López,444 F.3d 19, 24
(1st Cir. 2006) (citing cases); United States v. Arias-Montoya,967 F.2d 708
, 712- 13 & n.7 (1st Cir. 1992) (noting evidence of "continuous dealing" as relevant in assessing a defendant's intent regarding distribution); see also United States v. LePage,477 F.3d 485, 489
(7th Cir. 2007).
45
United States v. Shurn, 849 F.2d 1090, 1093
(8th Cir. 1988)
("The intent to distribute may be proven by either direct or
circumstantial evidence and may be inferred from such things as the
possession of a large quantity of a controlled substance, its high
purity level, the presence of paraphernalia used to aid in the
distribution of drugs, large sums of unexplained cash, and the
presence of firearms.").
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establishing a specific intent to distribute involves factors not
present here.46 Although such cases and their corresponding
principles remain relevant for purposes of our analysis, none fall
into the more narrow factual scope of our case: police officers
planting drugs in order to frame their marks and generate grounds
justifying an arrest.
Here the evidence before the jury for purposes of proving
an intent to distribute on the part of the defendants included
witness testimony and audio and video recordings showing that
defendants received controlled substances, brought them to targets'
homes to plant them (thereby framing the victims and providing
grounds for arrest), and almost immediately thereafter, seized the
drugs and returned them to their place of storage so that the
vicious conspiratorial cycle of false inculpation could repeat
itself. Described more succinctly, the evidence from which the
government asked the jury to infer a specific intent to distribute
was the officers' actual acts of physically moving controlled
substances amongst themselves to perform and complete the act of
planting. Accepting arguendo that the officers' physical acts here
of planting evidence constitute drug distribution, the only
46
The sole exception to this is that appellants here, as police
officers, likely were equipped with firearms as they carried out
their case fabrication schemes. However, their being armed
correlated to their capacity as police officers and not to a
specific intent to further drug abuse or drug trafficking. See,
e.g., Carter v. Pathfinder Energy Servs., Inc., 662 F.3d 1134, 1148
("Police officers carry guns . . . .").
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evidence from which the jury could infer an intent to distribute
was from the alleged act of distribution itself. I believe such a
conclusion in this case presents a two-fold problem.
First, where specific intent is a distinct element of a
crime (as here), such element must be proved separately from the
actual commission of the crime itself. See, e.g., Morissette, 342 U.S. at 276
(noting that evidence showing defendant actually took property weighed towards whether defendant "conscious[ly] and intentional[ly]" committed the crime; "[b]ut that isolated fact is not an adequate basis on which the jury should find the criminal intent to steal or knowingly convert . . . . [w]hether that intent existed, the jury must determine, not only from the act of taking, but from that together with defendant's testimony and all of the surrounding circumstances"); United States v. Miles,360 F.3d 472, 477
(5th Cir. 2004) ("[S]trict adherence to the specific intent
requirement contained in the text of the . . . statute is important
to ensure that only 'conduct that is really distinct from the
underlying specified unlawful activity' is punished under th[e]
provision." (quoting United States v. Brown, 186 F.3d 661, 670
(5th Cir. 1999))); United States ex rel. Vraniak v. Randolph,261 F.2d 234, 237
(7th Cir. 1958) (where specific intent is an element of a
crime, "the specific intent must be proved as an independent fact
and cannot be presumed from the commission of the unlawful act").
Thus, even if the officers' case fabrication actions constituted
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drug distribution as such, the government cannot rest upon this
evidence alone to confirm whether the officers held the requisite
statutory intent to distribute. Such evidence, while
unquestionably relevant, still must be considered in light of the
surrounding circumstances.
And secondly, the "surrounding circumstances" of this
case consist of the highly disturbing practice of police officers
fabricating cases by planting evidence. The officers' constant and
unchanging intent -- including while driving to the targets'
residences, entering their homes, and placing the controlled
substances in a location for subsequent seizure -- was to create an
illusion of law enforcement, that is, catching their victims in a
seemingly illegal act, and using the illusion as a justification
for an unlawful arrest. The controlled substances here were simply
the officers' instrument of choice that they played to their
victims' downfall.
The reality is that the officers could have selected from
a variety of instruments -- swapping narcotics for firearms,
ammunition rounds, or even endangered animals -- and still have
held the same intent (fabricating a case against a target and
creating grounds for their arrest) while performing the same
physical acts of driving to a home, temporarily depositing their
instrument-of-choice in a location, and subsequently retrieving it.
I find this to be a noteworthy point.
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In reviewing other precedent in which an intent to
distribute has been inferred from varying factors such as drug
quantity, drug purity, or presence of drug paraphernalia, a
switching of drugs with another item would have changed the
question of intent entirely. And yet here, if the officers could
have executed the same acts with different objects (i.e., not
controlled substances) and still satisfied the same intent and
achieved the same overall objective, I must ask: how can the
officers have held the requisite intent to distribute controlled
substances, if without such substances, their intent would have
remained the same?
For the officers here to have held an intent to
distribute, the court (as it has) would have to accept that an
intent to physically pass, move, or pick-up a controlled substance
is all that is needed to be shown to establish an intent to
distribute under the 1970 Act. But this, in effect, emasculates
the specific intent requirement of § 841(a)(1) such that the crime
is degraded to one requiring only a general intent, an unacceptable
result under established law. Were § 841(a)(1) the latter, then an
intent to perform the actus reus of a crime would suffice for
liability to attach. But as we have noted, the crime of possession
with intent to distribute is one of specific intent requiring a
specific mens rea. See Pelletier, 666 F.3d at 10
; see also Latham,874 F.2d at 863
(concluding district court's jury instruction
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erroneously "permitted a finding of guilt if the defendant had a
general intent to distribute cocaine" and noting that "essential
elements" of the crime of possession with intent to distribute
cocaine included possession, "either actually or constructively,
. . . with a specific intent to distribute").
Having carefully considered the plain language of the
statute, I fail to understand the majority's conclusion, the upshot
of which dilutes a specific intent crime's mental state requirement
to nothing more than a general intent showing. I thus turn to the
Act itself for guidance. Though this court generally has
recognized that "[t]he words of the statute are the first guide to
any interpretation of the meaning of the statute . . . if the
meaning is plain," we also have noted that this "maxim has inherent
flexibility," as "[e]ven seemingly straightforward text should be
informed by the purpose and context of the statute." Greebel v.
FTP Software, Inc., 194 F.3d 185, 192
(1st Cir. 1999). The fact
that the defendants' objective actions, when broken down to their
most basic linguistic descriptive form, may be described as a
"delivery" or "transfer" of drugs does not, for me, resolve the
question of whether the officers held the requisite statutory
intent to distribute such substances.
As the Supreme Court has recently noted, ceasing our
statutory examination at a literal-reading-only point in the
analytical roadway "would ignore the rule that, because statutes
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are not read as a collection of isolated phrases, '[a] word in a
statute may or may not extend to the outer limits of its
definitional possibilities.'" Abuelhawa v. United States, 556 U.S. 816, 819-20
(2009) (alteration in original) (quoting Dolan v. U.S. Postal Serv.,546 U.S. 481, 486
(2006)); U.S. Nat'l Bank of Or. v. Indep. Ins. Agents of Am., Inc.,508 U.S. 439, 455
(1993) ("Over
and over we have stressed that '[i]n expounding a statute, we must
not be guided by a single sentence or member of a sentence, but
look to the provisions of the whole law, and to its object and
policy.'" (alteration in original) (quoting United States v. Heirs
of Boisdore, 49 U.S. 113, 122
(1849))). Thus, ever mindful that "[i]nterpretation of a word or phrase depends upon reading the whole statutory text, considering the purpose and context of the statute, and consulting any precedents or authorities that inform the analysis," Dolan,546 U.S. at 486
, I shift back into drive from
my plain language stop and proceed onward down the statutory
language analysis highway to determine whether an intent to
fabricate cases equates to an intent to distribute.
B. Statutory Purpose
Section 841 is contained in Chapter 13 (Drug Abuse
Prevention and Control) of Title 21 (Food and Drugs) of the 1970
Controlled Substances Act. Before exploring the legislative
history (which we typically turn to for purposes of understanding
a statute's meaning), I turn to the historical context surrounding
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enactment of the Controlled Substances Act. See generally Branch
v. Smith, 538 U.S. 254, 266-71
(2003) (considering historical context surrounding passage of the Voting Rights Act); Rosebud Sioux Tribe v. Kneip,430 U.S. 584, 589-615
(1977) (reviewing the
same in assessing the legislative history of three congressional
acts and their effect on the boundaries of the Rosebud Reservation
in South Dakota). This is a highly relevant backdrop to assessing
Congress's intent in passage of the Act, as a large number of drug
laws already were present on the legislative books preceding its
enactment, raising the question as to why Congress needed to create
the Act, what void in the then-existing drug laws the Act was
intended to fill, and how it was different from other provisions
Congress previously had relied upon to target the ever-growing drug
menace.
1. Historical Context
The Controlled Substances Act was the product of a
decades-long battle of trying to curb the ever-rising tide of drug
abuse and drug trafficking in the United States. The Act, however,
was not Congress's first swing at bat in attempting to combat the
growing drug market. Congress's efforts to erect legislative walls
to control the flow of narcotics both into and within the United
States, and to counter the social problems associated with drug
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abuse and addiction, date as far back as the nineteenth century.47
A review of those laws pre-dating the Act reveals a plethora of
legislation with two predominant targeting themes: (1) drug abuse
and (2) drug trafficking
The turn of the century brought with it the rising
popularity of patent medicines used to treat common ailments.
These medicines, however, contained addictive ingredients (e.g.,
opium, morphine, and cocaine) and contributed to a growing
population of addicts. To combat these sources of addiction,
Congress enacted legislation, the Pure Food and Drugs Act of 1906,
that required labeling of medicines and prohibited the manufacture
or shipment of misbranded or adulterated drugs in interstate
commerce.48 The goal was to discourage consumption via public
exposure of such medications' addictive and dangerous ingredients.
47
In 1842, Congress placed opium on its tariff lists, viewing the
narcotic as a source of government revenue. See Tariff of 1842
("Black Tariff"), Act of Aug. 30, 1842, ch. 270, 5 stat. 548, 558;
see also Thomas M. Quinn & Gerald T. McLaughlin, The Evolution of
Federal Drug Control Legislation, 22 Cath. U. L. Rev. 586
-90 (1972-
1973) (hereinafter "Quinn & McLaughlin"). As opium smoking began
infiltrating varying levels of society, new revenue brought with it
new problems of drug abuse and addiction. Congress accordingly
began tightening the means of general accessibility to the drug,
placing high taxes on all imported smoking opium. Quinn &
McLaughlin, at 590 (citing Act of July 12, 1862, ch. 163, 12 stat.
543, 548).
48
Pure Food and Drugs Act of 1906, ch. 3915, 34 Stat. 768
, repealed by Act of June 25, 1938, ch. 675,52 Stat. 1059
; see also
Quinn & McLaughlin, at 590-91.
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Subsequent years showed Congress taking more forceful
steps to restrict and contain the flow of narcotics, whether into,
out of, or within the United States,49 and more narrowly target the
49
Between 1909 and 1914, the federal government banned the
importation and exportation of smoking opium, see Opium Exclusion
Act, Pub. L. No. 60-221, 35
Stat. 614 (1909), severely restricted the import of other forms of opium, see Narcotics Drugs Import and Export Act of 1914,Pub. L. No. 63-230, 38
Stat. 275 (repealed 1970), and heavily taxed opium's domestic production, see Harrison Narcotics Tax Act, ch. 1,38 Stat. 785
(1914). In 1922, Congress passed the Narcotic Drug Import and Export Act,Pub. L. No. 67-227, 42
Stat. 596 (1922), adding cocaine to the list of drugs banned from entry into the country. In 1937, Congress passed the Marihuana Tax Act, which required participants in the marijuana distribution chain to register with the government and to pay a tax, both increasing federal control over the drug and creating at least a monetary deterrence for those seeking its purchase. Pub. L. No. 238,50 Stat. 551
(repealed 1970); see also Gonzales v. Raich,545 U.S. 1, 11
(2005). Also in the 1930s, Congress continued to tighten its controls over the increasing black market in illegal drugs, passing both the Informers Act, ch. 829,46 Stat. 850
(1930) (authorizing payment of informers for violations of drugs laws), and the Vehicle Seizure Act, ch. 618,53 Stat. 1291
(1939) (prohibiting the transport of narcotics in or by means of a vessel, vehicle, or aircraft). Congress continued to break new ground in drug control in the 1960s. Although it previously had focused on the flow of narcotics into the general public by targeting U.S. ports, in 1960 Congress enacted the Narcotic Manufacturing Act,Pub. L. No. 86-429, 74
Stat. 55 (1960) to control the quantities of narcotics actually
manufactured within the United States.
Congress's last big move before enacting the Controlled
Substances Act was its 1965 amendments to the 1906 Food, Drug and
Cosmetic Act. See Drug Abuse Control Amendments of 1965, Pub. L. No. 89-74, 79
Stat. 226 (1965). These amendments expanded
Congress's narcotics regulation into the realm of "dangerous drugs"
depressants, stimulants, and hallucinogens), targeting all forms of
their illicit traffic and imposing various administrative
requirements on those involved in the production, sale, or disposal
of such drugs. See Quinn & McLaughlin, at 603-05.
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problems of drug abuse and drug addiction,50 all while adjusting its
means of drug enforcement, shifting powers from the Department of
Treasury and the Department of Health, Education, and Welfare,
ultimately into the hands of the Department of Justice.51
50
By the late 1920s, Congress faced an ever-increasing population
of addicts and drug abusers. One such rising population was
addicts in prison. To target the increasing numbers, Congress
passed the Porter Act in 1929, ch. 82, 45 Stat. 1085
(1929), which
created two treatment centers to provide rehabilitative care for
convicted addicts. Quinn & McLaughlin, at 599.
Another population of concern was young people. Following a
Special Senate Committee on Organized Crime's study on the rising
number of young addicts during the years 1946 through 1951,
Congress increased penalties for narcotics violations both in 1951,
see Boggs Act of Nov. 2, 1956, ch. 666, 65 Stat. 767
(repealed 1970), and again in 1956, see Narcotics Control Act of 1956,Pub. L. No. 84-728, 70
Stat. 567 (repealed 1970). See Quinn & McLaughlin, at 601-02. In the 1960s, Congress again revamped its approach to addicts and passed the Narcotic Addict Rehabilitation Act, Pub. L. No. 89- 793,80 Stat. 1438
(1966). The Act expanded rehabilitative treatment from imprisoned addicts to those who voluntarily sought treatment for their illness. 51 The Department of Treasury originally served as the government's main enforcer against the drug market, with Congress creating the Prohibition Bureau of the Department of Treasury in 1927. See Quinn & McLaughlin, at 599; see also Raich,545 U.S. at 10
. In 1930, as enforcement needs grew, a separate agency was created, the Federal Bureau of Narcotics. See id.; see also Act of 1927, ch. 348,44 Stat. 1381
(1927).
Congress's focus in the 1960s on dangerous drugs caused the Food
and Drug Administration ("FDA") of the Department of Health,
Education, and Welfare ("HEW") to step in and create the Bureau of
Drug Abuse Control. See Quinn & McLaughlin, at 605. By 1968,
jurisdiction over dangerous drugs officially was transferred from
the FDA to the Department of Justice, see Reorganization Plan No.
1 of 1968, § 2(a), 28 U.S.C. § 509
(1970), signifying a merger of
both the Department of Treasury's Bureau of Narcotics and the HEW's
Bureau of Drug Abuse Control.
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Although Congress enacted various laws to target both
drug trafficking and drug abuse throughout the early to mid-
twentieth century, the main drug control law before Congress's
passage of the Controlled Substances Act was the Harrison Narcotics
Act of 1914, ch. 1, 38 Stat. 785
(repealed 1970). The Act
signified the government's firm interjection of itself into the
darker realm of narcotics trafficking in the United States,
implanting methods of federal control and regulation that endured
until the 1970 consolidation of the drug laws.
The Harrison Act served two principal purposes: (1) it
created a federal watchdog system whereby the trafficking in
narcotics was surveilled from the drugs' date of entry or
manufacture until their time of consumption, and (2) it established
criminal penalties for drug trafficking that occurred outside
legally authorized entities, persons, or chains. See generally 38 Stat. 785
; United States v. Doremus,249 U.S. 86, 90-95
(1919)
(discussing Harrison Act's regulation of drugs and upholding the
Act on grounds that it did not exceed Congress's tax powers). The
Harrison Act thus affirmatively placed a fork in the drug marketing
road -- which has remained firmly planted ever since -- dividing
the flow of narcotics between two distinct paths, the high (legal)
road, and the low (illegal) road. The Harrison Act directed such
narcotic traffic by requiring manufacturers, producers, dispensers,
distributors, and purchasers of drugs to both register with the
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government and to pay a special occupational tax. See Quinn &
McLaughlin, at 593; see also Raich, 545 U.S. at 10-11
. Any type of
sale, transfer, or exchange of drugs could only occur following a
written order -- limited to execution on documents specifically
provided by the Commissioner of Internal Revenue -- made by the
person receiving such drugs. See Quinn & McLaughlin, at 593-94.
Lastly, strict record-keeping requirements were imposed on anyone
involved in the drug distribution system, allowing Congress to
maintain a vigilant eye over both the drugs themselves and their
corresponding transferors and recipients.
Notably, the Harrison Act's efforts to target the illicit
drug market -- by casting light on all types of transfers and
participants in the drug distribution system -- had the unfortunate
effect of pushing illegitimate transactions further into the
shadowy realms beyond the reach of the law, with black market
transactions thriving, like mushrooms, in the darkness.52 After a
52
An effect of the Harrison Act that one commentator has noted is
tied into section 2 of the Act, which exempted from coverage the
dispensing or distribution of drugs "to a patient by a
physician . . . in the course of his professional practice," ch. 1,
§ 2(a), 38 Stat. 785
, at 786 (1914). The upshot of the provision, however, was a wave of patient-addicts seeking "legal" administration of a drug from their doctor. See, e.g., United States v. Behrman,258 U.S. 280
(1922); Jin Fuey Moy v. United States,254 U.S. 189
(1920); Webb v. United States,249 U.S. 96
(1919). As courts tightened up on those medical treatments they
deemed to fall within the legal provisions of the Harrison Act,
addicts, being increasingly forced out of doctors' offices, sought
a new supply in the black market. And so, "[t]he addict-patient
vanished; the addict-criminal emerged in his place." Rufus King,
The Drug Hang-Up: America's Fifty-Year Folly 43 (1974).
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patchwork of laws directed at targeting drug trafficking and drug
abuse, the narcotics theme took full and center governmental stage
with President Nixon's assumption of the presidency in 1969.
President Nixon's famous declaration of a "war on drugs"
led to a complete transformation of the drug policy playing field.53
Congress sought to create legislation "that would consolidate
various drug laws on the books into a comprehensive statute,
provide meaningful regulation over legitimate sources of drugs to
prevent diversion into illegal channels, and strengthen law
enforcement tools against the traffic in illicit drugs." Raich,
545 U.S. at 10
; see alsoid. at 12
("[P]rompted by a perceived need
to consolidate the growing number of piecemeal drug laws and to
enhance federal drug enforcement powers, Congress enacted the
[Controlled Substances Act]"). And so the historical marathon of
legislation came to a rest and the Comprehensive Drug Abuse
Prevention and Control Act of 1970 came into being, consisting of
three titles: Title I, addressing the prevention and treatment of
narcotic addicts; Title II (most relevant for purposes of this
appeal), addressing drug control and enforcement; and Title III,
addressing the import and export of controlled substances. 84 Stat. 1238
, 1242, 1285.
53
See D. Musto & P. Korsmeyer, The Quest for Drug Control:
Politics and Federal Policy in a Period of Increasing Substance
Abuse (1963-1981) 60 (2002).
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2. Legislative History
The legislative history of the Controlled Substances Act
reveals that Congress transferred its same twofold intent as had
existed in prior legislation, namely, targeting drug abuse and drug
trafficking, into its passage of the 1970 Act. The Report of the
Senate Judiciary Committee on the Controlled Substances Act of 1969
states that "[t]he control of drug abuse and of both the legitimate
and illegitimate traffic in drugs is the main objective of the
bill." S. Rep. No. 91-613, at 4 (1969) (emphasis added). The
House Committee Report on the bill similarly notes that the Act was
intended to unite in a single statute the prior "plethora of
legislation" targeting drug offenses, bringing together the "more
than 50 pieces of legislation" that previously had targeted the
twin evils of drug abuse and drug traffic and that had led to "a
confusing and often duplicative approach to control of the
legitimate industry and to enforcement against the illicit drug
traffic." H.R. Rep. No. 91-1444, 4571 (1970).54 Additionally, the
54
The House Committee Report describes the Controlled Substances
Act's purpose as:
to deal in a comprehensive fashion with the growing
menace of drug abuse in the United States (1) through
providing authority for increased efforts in drug abuse
prevention and rehabilitation of users, (2) through
providing more effective means for law enforcement
aspects of drug abuse prevention and control, and (3) by
providing for an overall balanced scheme of criminal
penalties for offenses involving drugs.
H.R. Rep. No. 91-1444, at 4567 (emphasis added).
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House Committee Report breaks the soon-to-be Act into three
provisions, Title I (focusing on drug abuse), and Titles II and III
(focusing on drug trafficking), the division of which further
reaffirms Congress's twofold objective.55
Exploration into the legislative history additionally
reveals the following regarding Congress's intent in passing the
Controlled Substances Act.
a. Drug Abuse
The legislative history confirms that Congress intended
to maintain its focus on drug abuse. Specifically, Congress sought
to define those drugs of interest, focusing on their "abuse
potential, and psychological and physical effects," using such
categorizations as a basis for creating penalties that corresponded
with the severity of a substance's abuse potential. H.R. Rep. No.
91-1444, at 4571; 4575-77; 4599-605; see also Touby v. United
States, 500 U.S. 160, 162
(1991) ("Violations involving schedule I
substances carry the most severe penalties, as these substances are
55
Specifically, Title I focuses on the problem of drug abuse,
i.e., drug addiction and forms of rehabilitation, treatment, and
prevention. See H.R. Rep. No. 91-1444, at 4568-69 (describing
Title I as "establish[ing] rehabilitation programs relating to drug
abuse," and increasing "efforts in the rehabilitation, treatment,
and prevention of drug abuse"). Titles II and III aim at drug
trafficking, both within and outside of the United States. See
Raich, 545 U.S. at 12
(stating Title II "repealed most of the
earlier antidrug laws in favor of a comprehensive regime to combat
the international and interstate traffic in illicit drugs."); see
also H.R. Rep. No. 91-1444, at 4571 (noting Title III "provides for
control of imports and exports of drugs subject to abuse . . . with
criminal penalties for transactions outside the legitimate chain").
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believed to pose the most serious threat to public safety.");
United States v. Moore, 423 U.S. 122, 132
(1975) (noting that "[i]n enacting the CSA Congress attempted to devise a more flexible penalty structure than that used in the Harrison Act," with penalties "geared to the nature of the violation, including the character of the drug involved"); see also Gonzales v. Oregon,546 U.S. 243, 273-74
(2006). Congress's consideration of the physical and mental effects substances could have on an individual required it to acknowledge those drugs capable of inciting dependency and awakening new addict populations, the latter of which could further foster incidents of drug trafficking. H.R. Rep. No. 91-1444, at 4573-74; 4592-95; 4599-605. Congress's review of various substances' addictive natures for purposes of categorization, determination of corresponding penalties based on their "abuse potential," and concern with recurring drug abuse's effects on the individual, further reaffirm Congress's intent to target drug abuse under the Act, with drug abuse being equated with drug addiction. See Oregon,546 U.S. at 273
(noting the Controlled Substances Act
"consistently connect[s] the undefined term 'drug abuse' with
addiction or abnormal effects on the nervous system").
b. Drug Trafficking
The legislative history also confirms Congress's directed
aim at drug trafficking, both legitimate and illegitimate. See
Moore, 423 U.S. at 134-35
("The legislative history [of the
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Controlled Substances Act] indicates that Congress was concerned
with the nature of the drug transaction . . . . [and] with the
diversion of drugs from legitimate channels to illegitimate
channels."). For instance, the House Committee Report states the
Act's goal of "reduc[ing] the availability of drugs subject to
abuse except through legitimate channels of trade and for
legitimate uses". H.R. Rep. No. 91-1444, at 4574; see also id. at
4569 (same); id. at 4571-72 (same); id. at 4589 (same); id. at 4590
(acknowledging that "law relating to the regulation of narcotics
provides a closed system" of such drugs, making it "possible to
keep diversions of narcotic drugs from legitimate channels of trade
to an almost irreducible minimum"); id. at 4607 (noting the
importance of maintaining "effective controls against diversion of
particular controlled substances into other than legitimate
medical, scientific, and industrial channels").
Additionally, the Senate Judiciary Committee Report on
the Controlled Substances Act of 1969, containing parallel
provisions to those ultimately included in the 1970 Act, echoed
that bill's aim at "both the legitimate and illegitimate traffic in
drugs," S. Rep. No. 91-613, at 4, its section 502 as providing
"additional penalties . . . for those involved in the legitimate
drug trade for illegal" trafficking, and its section 503 as
applying "[f]urther penalties . . . for registrants for illegal
distribution," id. at 9. The Senate's Report further posits that
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"[a]pprehension of the serious traffickers and illicit
manufacturers of drugs is probably the most effective way to
control the drug problem." Id. at 10. This language from both
reports confirms Congress's goal of distinguishing between
legitimate versus illegitimate drug trafficking, and, via its
legislative arm, creating channels with which to divert the
movement of drugs away from illegitimate streams and into
legitimate waters.
Regarding the Act's aim at drug trafficking, we also
observe these points. First, the legislative history repeatedly
distinguishes between legitimate versus illegitimate forms of
trafficking. See, e.g., H.R. Rep. No. 91-1444, at 4569
(distinguishing between members of the "legitimate distribution
chain" and those "outside the legitimate distribution chain"); id.
at 4571 (distinguishing between "the legitimate industry" and
"enforcement against the illicit drug traffic"); id. at 4572
(same); id. at 4574 (describing a reduction in drug availability
subject to abuse "except through legitimate channels of trade and
for legitimate uses"); id. at 4584 (same); id. at 4589 (same); id.
at 4590 (same); id. at 4601-02 (same); id. at 4606-07 (same).
Second, the legislative history indicates that legitimate
"channels" or "markets" or "distribution chains" generally are
determined by whether or not the participants are registered or
authorized manufacturers, wholesalers, retailers, or users of
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narcotics, i.e., market participants; if they are not, then they
fall outside the legitimate realm and into the "illicit market"
category. See H.R. Rep. 91-1444, at 4569 (stating the bill
requires "registration of manufacturers, wholesalers, retailers,
and all others in the legitimate distribution chain, and makes
transactions outside the legitimate distribution chain illegal");
id. at 4589 (same); id. at 4602 (same); id. at 4605-06 (same); S.
Rep. No. 91-613, at 6 (same).
Third, Congress's imposed registration requirements serve
not only to verify whether a participant is involved in the
legitimate or illicit drug market, but also, to ensure Congress's
watchful gaze over each controlled substance and its respective
movements to try and further curtail drug abuse and its associated
problems. See H.R. Rep. No. 91-1444, at 4569 (noting registration
of manufacturers, wholesalers, retailers, and others in legitimate
distribution chain meant to ensure "control by the Justice
Department of problems related to drug abuse").
Fourth, legislative history links participation in drug
distribution with participation in the drug market or drug
industry. Specifically, the legislative history indicates that
Congress sought to create a "closed system" of drug manufacturing,
distribution, and dispensing that (ideally) would lead to a
diminishment -- if not extinction -- of the illicit drug market.
See H.R. Rep. No. 91-1444, at 4571-72 ("The bill is designed to
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improve the administration and regulation of the manufacturing,
distribution, and dispensing of controlled substances by providing
a 'closed' system of drug distribution for legitimate handlers of
such drugs" that would "significantly reduce the widespread
diversion of these drugs out of legitimate channels into the
illicit market, while at the same time providing [for a] legitimate
drug industry . . . ."); see also id. at 4574.
Similarly, Congress connects the flow of controlled
substances with its effect on commerce, again effectively linking
drug distribution with the drug market. See H.R. Rep. No. 91-1444,
at 4596 ("Controlled substances either flow through interstate or
foreign commerce or they have a substantial and direct effect upon
interstate commerce . . . ."); id. ("Those substances manufactured
or distributed on a purely intrastate basis cannot be
differentiated from those manufactured or distributed for
interstate commerce . . . .").
In sum, the legislative history on trafficking reveals
that Congress intended to target both legitimate and illegitimate
drug trafficking; legitimate trafficking correlates with drug
movement through legitimate "channels" or "distribution chains;"
the key players in a "legitimate channel" or "legitimate
distribution chain" consist of registered manufacturers,
wholesalers, retailers and the like; registration serves the dual
purpose of enabling effective monitoring of all legitimate drug
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transfers and further curbing incidents of drug abuse through
careful surveillance; Congress connects drug distribution, whether
via registered or unregistered entities, with participation in the
drug market, whether licit or illicit; and it lastly links any such
participation in the drug market with a potential for drug abuse
and its corresponding problems.
It is thus beyond cavil that the object and intent of the
Controlled Substances Act was the control of drug abuse and drug
trafficking. With this legislative framework in mind, I return to
the facts of our case.
C. Back to the Facts
The evidence adduced at trial revealed that the officers'
intent at all times while handling the controlled substances was to
fabricate a case against a given mark. Specifically, the evidence
(consisting of testimony from cooperating witnesses and audio and
video recordings) showed that all controlled substances were kept
in the care and custody of Santiago. Santiago only accessed the
box, or allowed others to so access the box, when officers were
planning to execute a search warrant or perform another form of
police intervention potentially leading to arrest. Officers who
received the controlled substances did so with specific
instructions to make any search or intervention turn out "positive"
through the use of planted drugs. The officers only use of the
drugs consisted of going to a location in which the target was
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located, planting the evidence, and using it as grounds for a
seemingly lawful arrest. All drugs were then immediately returned
to the black box, to a co-conspirator's control, or, if there was
more than one search or intervention in a given day, used again in
the same manner to falsify grounds for a mark's arrest.
Thus, taken together, the evidence shows that the one
sole, consistent purpose motivating the officers' actions and
collective scheme was to falsify cases against certain targets by
means of planting evidence, with controlled substances serving as
their weapon of choice, and to retrieve and store the drugs once
they no longer were being used for such falsification purposes.56
56
Even the government's framing of the officers' intent in its
indictment reveals the same purpose. In its "Object of the [Count
Two] Conspiracy" section, the government states:
It was the object of the conspiracy to possess with the
intent to distribute controlled substances in the
fabrication of cases against individuals in the
Commonwealth of Puerto Rico in order to further the
object of the conspiracy contained in Count One of this
indictment.
(Emphasis added).
The government describes the object of the count one conspiracy as
"[t]o plant illegal controlled substances on or near persons in the
Commonwealth of Puerto Rico," and "[t]o swear out false search
warrant affidavits against persons in the Commonwealth of Puerto
Rico," both of which resulted in "the unreasonable seizures and
unlawful detentions and arrests of these persons."
In its charging of the "Manner and Means" the officers' used to
effectuate the object of their count two conspiracy, the government
provides:
The foregoing object of the [Count Two] conspiracy was to
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Their intent was never to consume (or try and make others consume)
the narcotics or use the drugs in a way that raised a potential for
addiction (i.e., drug abuse), nor was their objective to introduce
or circulate the drugs into society's illicit drug market channels
(i.e., drug trafficking).57
be accomplished as follows:
1. Defendants and other uncharged co-conspirators would
use their status as sworn officers of the POPR Mayaguez
Drug/Narcotics/Vice Unit to retain controlled substances
seized at various times during the conspiracy in order to
use these controlled substances to fabricate cases
against individuals in the Commonwealth of Puerto Rico.
2. The defendants and other uncharged co-conspirators
would share these controlled substances amongst
themselves in order to assist each other in carrying out
the objects of the conspiracy contained in Count One of
this Indictment.
(Emphasis added).
57
As to this last point, the only recipients of the drugs in the
planting scheme were police officers; their victims never had any
knowledge as to the drugs' presence on their property, and though
the victims may have had questionable legal backgrounds, they still
never consented or willingly participated in receipt of the
controlled substances for which the officers arrested them.
Contrary to the majority's insinuation, simply because the
officers' victims may have engaged in drug deals in the past does
not mean that the officers' leaving of drugs on the targeted drug
leaders or dealers' properties constituted an insertion of drugs
into an illicit channel at the particular time of planting. See
Maj. Op. at 46 n.26 ("The evidence is that the officers did intend
to introduce the drugs into society's illicit channels . . . .
Indeed, the evidence shows that the officers repeatedly transferred
the drugs to known drug leaders and dealers, often leaving drugs
somewhere on the drug dealer's property so that the drugs would be
'discovered' by other officers."). In fact, the drugs never left
the control or authority of the police officers, who at the time of
planting, already were in the process of searching a victim's home,
with their targets accordingly seized and under their authority
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Courts, including ours, have consistently recognized
Congress's intent to broadly target ever-evolving forms of drug
transactions through enactment of the Controlled Substances Act and
its coinciding provisions.58 Moreover, the legislative history
makes clear that Congress's goal in enacting the Controlled
Substances Act was to target drug abuse and drug trafficking, and
that §§ 841(a)(1) and 846 were two such widely-sweeping provisions
through which Congress intended to prevent, or at least control,
either of such double troubles from happening or increasing in
occurrence. However, the fact that Congress intends a law to apply
broadly does not mean that it or its corresponding provisions are
limitless in application.
It is axiomatic that the law presumes men intend the
natural consequences of their actions, but this presumption fails
where the evidentiary mirror reflects an intent different from that
required under the statute. Pico v. United States, 228 U.S. 225, 231
(1913); McDonald v. United States,9 F.2d 506, 508
(8th Cir.
1925) ("While it is a fundamental rule that men are presumed to
during the execution of the search.
58
See, e.g., United States v. Wallace, 532 F.3d 126, 129
(2d Cir. 2008) (noting that the terms "distribute" and "deliver" reflect a congressional intent "'to proscribe a range of conduct broader than the mere sale of narcotics'" (quoting United States v. Washington,41 F.3d 917, 919
(4th Cir. 1994))); United States v. Tingle,183 F.3d 719
, 727 n.3 (7th Cir. 1999) ("Courts usually interpret the
term 'distribution' and related words quite broadly."); United
States v. Pruitt, 487 F.2d 1241, 1245
(8th Cir. 1973).
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intend the natural consequences of their acts, yet this presumption
cannot prevail in the presence of positive proof of a specific
intent different from that required by the statute."). In such
instances, "it devolves upon the government to present affirmative
evidence of the existence of the required unlawful intent"
essential to the crime charged. McDonald, 9 F.2d at 508
.
In my view, the government's evidence falls short of the
requisite specific intent mark for us to affirm appellants'
convictions for violating 21 U.S.C. §§ 841
and 846. See United States v. Feola,420 U.S. 671, 686
(1975) ("[T]o sustain a judgment
of conviction on a charge of conspiracy to violate a federal
statute, the Government must prove at least the degree of criminal
intent necessary for the substantive offense itself."); Ingram v.
United States, 360 U.S. 672, 678
(1959). The officers' specific intent under the facts of this case does not equate with the dual objects which Congress has historically pursued in its controlled substances legislation and on which it set its legislative eyes in the passage of the 1970 Act and the corresponding provisions of §§ 841(a)(1) and 846: drug abuse and drug trafficking.59 See 59 The majority takes issue with my contention that Congress's goal in enacting the Controlled Substances Act, and in particular, § 841(a)(1), was to target the double evils of drug abuse and drug trafficking. The majority itself, however, seems to concede the relevance of such factors in its discussion of why it claims I mistake overall objective for specific intent. Specifically, the majority discusses United States v. Boidi,568 F.3d 24
(1st Cir.
2009). But the language cited by the majority to support its
understanding of the term "distribute" and its corresponding intent
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Oregon, 546 U.S. at 268
(referring to the Controlled Substances Act's "statutory purposes to combat drug abuse and prevent illicit drug trafficking" (emphasis added)); Raich,545 U.S. at 12
(stating "[t]he main objectives of the [Controlled Substances Act] were to conquer drug abuse and to control the legitimate and illegitimate traffic in controlled substances") (emphasis added); United States v. Pumphrey,831 F.2d 307
, 309 n.3 (D.C. Cir. 1987).
III.
After a thorough search, I have been unable to find any
decision, reported or otherwise, in which an individual has been
charged or convicted for violation of the statutes as charged under
count two, nor has the majority (or the parties, for that matter)
pointed to any such decision or precedent.60 The absence of any
precedent since the Controlled Substances Act's enactment in which
a person has been charged (much less convicted) for possession of
controlled substances with an intent to distribute -- where the
-- i.e., "[w]hether or not sharing [drugs] with a girlfriend is
often so prosecuted, it is as much 'distribution' as selling it on
a street corner," Maj. Op. at 36 (quoting Boidi, 568 F.3d at 29
) --
still reflects what I believe were Congress's twin goals in
enacting the underlying statute and the focal points at which it
intended to direct the statute's aim: drug abuse (the girlfriend's
consumption of the drugs) and drug trafficking (selling on the
street corner).
60
Those cases cited by the majority in footnote 25 as alleged
support for the contrary conclusion do not persuade otherwise;
rather, such cases concern classic acts of drug distribution
(involving either drug abuse or drug trafficking), actions which
the history of this legislation clearly prohibits.
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only proffered evidence was the individual's planting of drugs with
the specific purpose to frame others -- I find to be highly
compelling. Though the majority brushes this lack-of-precedent
contention aside on grounds of prosecutorial discretion and
claiming that a scarcity of precedent "says nothing about the
incidence rate of similar misconduct . . . and nothing about
whether similar prosecutions were brought but did not result in
reported decisions," Maj. Op. at 43, I respectfully take issue with
its more cavalier response to what I believe is a relevant point.61
To begin with, I flag this concern not because I believe
it may reasonably be contended that the underlying acts of planting
at issue here never have taken place before, nor because I believe
we hold the power to invalidate a conviction solely on the basis of
whether a track record of such prosecutions in the past exists.
See Maj. Op. at 44. As to the former point, though one would hope
such incidents are few and far between, I am not so naive as to
think that past police misconduct has never encapsulated such
condemnable acts. And to the latter, I raise this lack-of-
precedent point solely to reinforce my contention that the
61
Though the majority finds this dearth of law an unpersuasive
point, when challenging my contention (based on the Controlled
Substances Act's legislative history) that a specific intent to
distribute drugs should somehow trigger or implicate Congress's
twin goals of targeting drug abuse or drug trafficking, the
majority cites to a lack of precedent to support its position that
such factors are not part of the analysis for assessing specific
intent under § 841. Maj. Op. at 46.
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distribution statutes at issue -- 21 U.S.C. §§ 841
(a)(1) & 846 -- are not the appropriate tools with which to tackle the opprobrious charges underlying count two (i.e., that possessing drugs with an intent to fabricate cases against targets is equivalent to possessing drugs with the specific intent to engage in drug distribution). Notably, the acts of case fabrication at issue, clear violations of individuals' civil rights, are not without remedy -- they unquestionably fall, as evidenced supra, within the ambit of other statutes enacted by Congress, with18 U.S.C. § 241
serving as one of the weapons it more commonly uses to target such
acts of civil rights infringement.62
Moreover, I find it quite telling that the government
deemed this dearth of supporting precedent a relevant factor when
deciding which charges it properly could bring in this case.
Specifically, the government at oral argument explained that, when
initially preparing the indictment in this case, "the Department"
(which I presume to mean the Department of Justice) sent out an
agency-wide email requesting the respective views of all other
"offices" (which I assume refers to all other U.S. Attorney
offices), as to whether the officers in this case could be charged
with possession with intent to distribute for their underlying acts
62
For this reason, I take no issue with the majority's point that
officers lawfully engaged in drug distribution are shielded from
liability pursuant to 21 U.S.C. § 885
(d), but that those who
unlawfully participate in such acts may have their cloaks of
immunity pierced. See Maj. Op. at 37-40.
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of police misconduct. The government conceded that its broad
conferral revealed no consensus whatsoever from the Department as
to whether such acts fell within the ambit of 21 U.S.C. § 841
(a)(1). Nevertheless, despite this lack of consensus, the
Puerto Rico office decided to proceed.
At the very least, the fact that no other judgment has
been issued sustaining the government's novel interpretation of an
intent to distribute as including an intent to falsify cases
through planting evidence supports my concern that such a reading
does not fall within Congress's intended purview of § 841's
possession-with-intent-to-distribute proscription. Indeed, it
borders on the preposterous to conclude that out of ninety-three
U.S. Attorney Offices in the United States, only the Puerto Rico
office has not been derelict in charging under the law in question,
and that the remaining offices have apparently been blind to what
the majority believes was a clear proscription of the law since its
1970 enactment. Tragic a statement as it may be, the District of
Puerto Rico is not the only jurisdiction in which rogue police
officers exist. This is a regrettable, unfortunate fact of which
we could almost take judicial notice. But charging under a statute
for conduct of which no prior precedent exists may, in some
instances, be a form of rogueness which this court should not
sanction; indeed, such potential overreaching raises constitutional
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red flags that I fear may fly in future cases before this court.63
IV.
To be clear, any abuse of the authoritative badge is
reprehensible and an indignity to the very laws the badge is
charged with upholding. But I simply cannot accept the
government's -- and now majority's -- novel position that an intent
to fabricate cases and falsify arrests is tantamount to an intent
to commit drug distribution. Although I do not question
prosecutors' accepted discretion to pick and choose among those
statutes it deems most applicable to the crimes and charges at
issue, such power is not absolute, particularly where the evidence
does not support the crime charged. This is such a case. I thus
would reverse the convictions of appellants Santiago, Cortés, and
Domínguez under count two and remand their cases for resentencing
based only on the count one conviction. For this reason, I
likewise dissent to Parts II.C.1 and II.C.2 of the opinion.
63
The government's novel proposal to interpret and enforce
§§ 841(a)(1) and 846 in this radically new manner could prove
constitutionally problematic. See U.S. Const. amend. XIV; Kolender
v. Lawson, 461 U.S. 352, 357
(1983) (stating "the void-for- vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement"); see also Clark v. Martínez,543 U.S. 371, 381-82
(2005) (canon of
constitutional avoidance "is a tool for choosing between competing
plausible interpretations of a statutory text, resting on the
reasonable presumption that Congress did not intend the alternative
which raises serious constitutional doubts").
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