Opinion
5:01-CR-0113 (FJS)
May 29, 2003
EDWARD R. BROTON, AUSAOFFICE OF THE UNITED STATES ATTORNEY, Syracuse, New York, for the United States.
FRANK POLICELLI, ESQ., OFFICE OF FRANK POLICELLI, Utica, New York, for Defendant.
At trial, Defendant was represented by Robert P. Moran, Jr., Esq. of Rome, New York. The Court directs the Clerk of the Court to serve a courtesy copy of the instant decision on Mr. Moran at the following address of record: Office of Robert P. Moran, Jr., 301 Black River Boulevard, Rome, New York 13440.
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
By superseding indictment dated August 23, 2001, Defendant Luis I. Santiago is charged with a single conspiracy count pursuant to 21 U.S.C. § 846, 841(a)(1), stemming from his alleged participation in the "Brito" narcotics conspiracy based in Utica, New York. Specifically, Count I of the superseding indictment charged Defendant with conspiring (1) to possess with intent to distribute and distribute cocaine base (crack) and cocaine in the Utica area and (2) to aid and abet the distribution of cocaine base (crack) and cocaine in the Utica area.
In addition to Defendant, the superseding indictment named as Defendants Ramon Brito, Felix Brito, Hector Hernandez, Marlene Brito, Porforio Gaton, Terry O'Connor, Luis Garcia, Andre Nazario, Robert Sherman and Jose Reyes, all of whom have entered a plea of guilty to Count I of the superseding indictment.
By stipulation of the parties, a bench trial was held on February 4-5, 2003. The following constitutes the Court's findings of fact and conclusions of law pursuant to Rule 23(c) of the Federal Rules of Criminal Procedure.
II. FINDINGS OF FACT
In the instant case, there is no dispute that a conspiracy to distribute cocaine existed amongst various individuals under the direction of Ramon and Felix Brito, as charged in the superseding indictment. The question before the Court is thus whether Defendant was a member of that conspiracy.
A. The Investigation
Ramon and Felix Brito headed a narcotics conspiracy in the Utica, New York area between approximately 1999 and March 2001, the object of which was to import and distribute cocaine and crack cocaine for profit. The investigation of the Brito conspiracy began in earnest in December of 1999. At that time, members of the Oneida County Drug Task Force approached Federal Bureau of Investigation Special Agent Tony Fitzgerald with information regarding the Brito conspiracy. After interviewing a cooperating witness, Agent Fitzgerald opened a federal investigation of the Brito conspiracy.
Agent Fitzgerald was thereafter the case agent responsible for the federal investigation of the Brito conspiracy.
With the assistance of a cooperating witness, federal investigators arranged fourteen controlled buys from Ramon Brito, Felix Brito and Hector Hernandez between February 2000 and December 2001. In total, the controlled buys netted 206 grams of crack cocaine.
In the course of the controlled buys, investigators identified three cellular telephones that members of the Brito conspiracy used to conduct drug transactions and subsequently ran pen registers on each. The pen registers logged approximately 454 calls between Defendant's residential telephone number and the three cellular telephones over the course of approximately six months in 2000 and 2001.
A pen register is a device that logs calls placed and received on a specific telephone number.
It is unclear, however, how many of those calls involved Defendant. Agent Fitzgerald conceded on cross-examination that the pen register log does not establish who placed and received calls at Defendant's residence.
Investigators thereafter obtained judicial authorization for a thirty-day wiretap, beginning on February 7, 2001, on two of the cellular telephones identified during the controlled buys. See Government Exhibit "35." Between February 7 and March 7, 2001, investigators intercepted forty-two calls in which Defendant participated. At trial, the Government introduced tapes and transcripts of thirty-one calls. See Government Exhibits "1"-"31" "1A"-"31A."
During the thirty-day wiretap, surveillance was conducted to corroborate information obtained from the wiretap. See Government Exhibits "39," "41" "42" (original surveillance reports); Government Exhibit "43" (surveillance videotape). Investigators testified that they observed Defendant approaching vehicles connected with the Brito conspiracy on four occasions on February 7, 15 and 16, 2001, after he was heard ordering drugs in intercepted calls.
The surveillance was inconclusive, however, with respect to whether narcotics or money exchanged hands on these occasions.
Thereafter, arrest and search warrants issued for those persons believed to be part of the Brito conspiracy. Defendant was arrested at his residence on the morning of March 7, 2001. Shortly after his arrest, Defendant made various oral statements to FBI Special Agent John Bokal. Specifically, Agent Bokal testified that Defendant stated that he had purchased cocaine from the Brito conspiracy for two to three years; that he originally purchased two to three "eightballs" per month but that in the year leading up to his arrest he purchased two to three eightballs two to three times per week; that he paid $120 per eightball; that he purchased cocaine from various members of the Brito conspiracy, including Ramon Brito, Hector Hernandez and Porforio Gaton; and that he sold some of the cocaine that he purchased to support his drug habit.
Defendant waived his Miranda rights in writing. See Government Exhibit "36."
Multiple witnesses testified that an "eightball" is a one-eighth ounce, or 3.5 gram, unit of cocaine.
B. Defendant's Cocaine Purchases
The evidence adduced at trial establishes beyond a reasonable doubt that Defendant was a regular and longstanding customer of the Brito conspiracy. Defendant's post-arrest statement that he was purchasing two to three eightballs two to three times per week in the year leading up to his arrest is supported and corroborated by Porforio Gaton's testimony that he delivered one to three eightballs to Defendant two or three times per week and tape recorded telephone conversations in which Defendant ordered approximately thirty-four eightballs during the thirty days that the wiretap was in place. See Government Exhibit "45."
While Hernandez testified that he delivered anywhere from one to six eightballs at a time to Defendant, sometimes five days per week and occasionally more than once a day, on cross-examination he was unable to explain his prior statement to prosecutors that Defendant purchased two eightballs per week, on average. The Court therefore discounts Hernandez' trial testimony as not being credible with respect to the quantity of cocaine that Defendant purchased.
While it is unclear whether all of these orders were fulfilled, the weight of the credible evidence supports a finding that Defendant ordered eight or nine eightballs per week during the period of time that the wiretap was in place, a figure consistent with both Defendant's post-arrest statement and Gaton's testimony at trial.
C. Defendant's Resale of Cocaine
The investigation of the Brito conspiracy produced little direct evidence that Defendant sold cocaine. On cross-examination, Agent Fitzgerald conceded that there were no controlled buys from Defendant and that investigators did not identify any individuals who had purchased cocaine from Defendant. In addition, the search of Defendant's residence yielded only trace amounts of cocaine and no evidence of paraphernalia related to cocaine distribution, such as plastic bags, cutting agent, or scales. In contrast, substantial quantities of cocaine and cash were seized from the residences and automobiles of other undisputed members of the Brito conspiracy. See Government Exhibits "17," "18" and "22." For example, nearly two kilograms of cocaine were seized from Ramon Brito's residence and approximately $14,000 in cash was seized from Felix and Marlene Brito's residence.
However, as stated, Defendant admitted in his post-arrest statement to Agent Bokal that he sold some cocaine to support his drug habit. Also, Hernandez and Agent Fitzgerald both testified that the quantity of cocaine that Defendant purchased was inconsistent with personal use. Hernandez further testified that Defendant occasionally indicated that he had customers waiting for him and on several occasions asked Hernandez to drive him to various locations to meet such individuals.
The Court notes, however, that the quantity of cocaine that Defendant purchased is not so large as to be obviously and indisputably outside the realm of personal consumption.
In addition, Gaton testified that on one occasion he observed Defendant dividing a quantity of cocaine into several small packages.
Furthermore, several of Defendant's statements intercepted during the wiretap investigation suggest that Defendant was selling some portion of the cocaine that he purchased. In the context of several obviously drug-related conversations, Defendant stated, for example, that "this guy comes every Tuesday," see Government Exhibit "10A," "I have some people waiting already," see Government Exhibit "12A," and "I had a slow day . . . [n]o one called me last night," see Government Exhibit "31A." Defendant's statements in these calls, in combination with other evidence, clearly indicate that Defendant was reselling cocaine. The Court therefore finds that Defendant resold some portion of the cocaine that he purchased from the Brito conspiracy.
D. Defendant's Relationship to the Brito Conspiracy
The evidence with respect to Defendant's relationship to the Brito conspiracy is somewhat more troublesome. Hernandez testified that Ramon Brito characterized Defendant as a good customer. Hernandez further testified that Defendant was not employed by the Brito organization; that he was not involved in the weekly accounting of the Brito organization's profits; and that he had no stake in the profits of the organization. Gaton testified that, unlike members of the conspiracy, the Britos did not give Defendant a pager or a cell phone to conduct business. Furthermore, in contrast to Gaton and Hernandez, there is no evidence that Defendant was paid or otherwise rewarded for doing business with the Brito conspiracy.
Hernandez conceded on cross-examination that Defendant was not given a cell phone because he was not part of the organization.
III. CONCLUSIONS OF LAW
A. Applicable Law
Whether a particular defendant is a member of the conspiracy charged in the indictment is a question of fact to be resolved by the trier of fact. See United States v. Aracri, 968 F.2d 1512, 1520 (2d Cir. 1992) (citations omitted). The Government bears the burden of proving each defendant's membership in the particular conspiracy charged in the indictment beyond a reasonable doubt. See id.
In a conspiracy case, the evidence may support the conclusion that there existed more than one conspiracy; if the trier of fact concludes that a particular defendant was not a member of the conspiracy charged in the indictment, but some other conspiracy, that defendant must be acquitted. See United States v. Taylor, 562 F.2d 1345, 1351 (2d Cir. 1977); United States v. Tramunti, 513 F.2d 1087, 1107 (2d Cir. 1975). In the instant case, the Government did not charge, nor did it argue that there existed, any conspiracy other than the Brito conspiracy. To the extent that the evidence indicates that Defendant may have been a member of a separate conspiracy to distribute cocaine, such a theory of liability was not charged in the indictment and is thus not properly before the Court.
In its trial memorandum, the Government asserts that it need only provide "slight additional evidence" connecting the defendant to the charged conspiracy, citing United States v. Marrapese, 486 F.2d 918 (2d Cir. 1973). Marrapese, however, involved appellate review of a judgment of conviction for sufficiency of the evidence, a procedural juncture at which "[t]he evidence must be considered in the light most favorable to the Government. . . ." Id. at 921 (internal citation omitted). While the "slight evidence" language in Marrapese may properly state the standard upon appellate review for sufficiency of the evidence, in no way does it change the Government's burden to prove each element of its case beyond a reasonable doubt in the first instance. See United States v. Durrive, 902 F.2d 1221, 1229 n. 6 (7th Cir. 1990); United States v. Cooper, 567 F.2d 252, 253 (3d Cir. 1977) (standard of review for sufficiency of evidence "cannot be understood to establish the novel rule that the prosecution in a conspiracy case is relieved of the burden of proving every element of the offense beyond a reasonable doubt."). For this reason, courts have held that it is reversible error to instruct a jury that only "slight evidence" is required to connect a defendant to a particular conspiracy. See Durrive, 902 F.2d at 1229 n. 6; Cooper, 567 F.2d at 253 (citing United States v. Partin, 552 F.2d 621, 628 (5th Cir. 1977), cert. denied ___ U.S. ___, 98 S.Ct. 298, 54 L.Ed.2d 189 (1977)).
"In order to prove a conspiracy charge against a defendant, the government must present "`some evidence from which it can reasonably be inferred that the person charged with conspiracy knew of the existence of the scheme alleged in the indictment and knowingly joined and participated in it."'" United States v. Gore, 154 F.3d 34, 40 (2d Cir. 1998) (quoting United States v. Sanchez Solis, 882 F.2d 693, 696 (2d Cir. 1989) (quoting United States v. Gaviria, 740 F.2d 174, 183 (2d Cir. 1984))); see United States v. Lara, 47 F.3d 60, 65 (2d Cir. 1995) (membership in the charged conspiracy may be shown by "proof of active participation with knowledge of the venture's illegal purpose") (citations omitted). "Both the existence of the conspiracy and the defendant's participation in it with the requisite criminal intent may be established through circumstantial evidence." Gore, 154 F.3d at 40 (citing United States v. Tutino, 883 F.2d 1125, 1129 (2d Cir. 1989)).
The Second Circuit has held that "the mere buyer-seller relationship . . . is insufficient to establish a conspiracy." Id. (citing United States v. Beech-Nut Nutrition Corp., 871 F.2d 1181, 1191 (2d Cir. 1989)) (footnote omitted); see United States v. Pena, No. 89 CR. 410, 1990 WL 103970, *4 (S.D.N.Y. July 18, 1990) (citations omitted). This is so because the existence of a buyer-seller relationship does not, by itself, prove the existence of a joint objective above and beyond the consummation of the underlying offense, i.e., an illicit narcotics transaction. See United States v. Koch, 113 F.2d 982, 983 (2d Cir. 1940) (the mere purchase of narcotics does not evince an "agreement to advance any joint interest"); accord United States v. Moran, 984 F.2d 1299, 1303 (1st Cir. 1993) (noting, in the context of a drug transaction, that "both [parties] may be guilty — one of distribution and the other of possession — but without more they are not conspirators.") (citing Glenn, 828 F.2d at 858)); United States v. Kimmons, 917 F.2d 1011, 1015-16 (7th Cir. 1990) (quoting United States v. Mancillas, 580 F.2d 1301, 1307 (7th Cir.), cert. denied, 439 U.S. 958, 99 S.Ct. 361, 58 L.Ed.2d 351 (1978)) (citation omitted).
At least six other circuits have reached the same conclusion. See Gore, 154 F.3d at 40 n. 2 (citing United States v. Mims, 92 F.3d 461, 465 (7th Cir. 1996) (holding buyer-seller relationship insufficient to show conspiracy "even where the buyer intends to resell the purchased narcotics"); United States v. Morris, 267 U.S.App.D.C. 23, 836 F.2d 1371, 1373-74 (D.C. Cir. 1988); United States v. McIntyre, 836 F.2d 467, 471 (10th Cir. 1987); United States v. Burroughs, 830 F.2d 1574, 1580-81 (11th Cir. 1987); United States v. Lennick, 18 F.3d 814, 819 n. 4 (9th Cir. 1994); United States v. Meyers, 646 F.2d 1142, 1145 (6th Cir. 1981)).
Moreover, while the "purchase of narcotics for resale [may be] evidence of a conspiratorial agreement," United States v. Mims, 92 F.3d 461, 465 (7th Cir. 1996) (citing United States v. Townsend, 924 F.2d 1385, 1394 (7th Cir. 1991)) (other citation omitted), such evidence does not, in itself, establish the existence of a conspiratorial agreement. See United States v. Lechuga, 994 F.2d 346, 349 (7th Cir. 1993) (en banc) ("[I]nsofar as there was an agreement . . . merely on the one side to sell and on the other to buy, there was no conspiracy . . . no matter what [the buyer] intended to do with the drugs after he bought them."); cf. United States v. Zambrano, 776 F.2d 1091, 1095 (2d Cir. 1985) (noting that "not every sale of [drugs], even with the knowledge that the buyer intends to use them illegally, would support a conspiracy count" and requiring proof of "informed and interested cooperation, stimulation and instigation.").
Likewise, evidence of an ongoing buyer-seller relationship may, in some circumstances, be probative of a conspiratorial agreement, see Mims, 92 F.3d at 1394 (citations omitted). However, "prolonged cooperation is neither the meaning of conspiracy nor an essential element. . . ." Lechuga, 994 F.2d at 350.
B. Application of the Law to the Facts
As stated, the evidence establishes conclusively that Defendant was a longstanding customer of the Brito conspiracy and that he resold some portion of the cocaine that he purchased on an unknown number of occasions. While these facts may, in some circumstances, give rise to an inference of a conspiratorial agreement, they are not conclusive. See Mims, 92 F.3d at 465; cf. Pena, 1990 WL 103970 at *5 ("[P]ossession of large quantities of drugs alone commonly gives rise to an inference of intent to distribute, but not to an inference of conspiracy.") (citing United States v. Morgan, 835 F.2d 79, 82 (5th Cir. 1987)). The Court must, therefore, decide whether these facts are sufficient, in light of the record as a whole, to prove Defendant's membership in the Brito conspiracy beyond a reasonable doubt.
In the instant case, several facts militate against a finding that Defendant was a member of the Brito conspiracy. The evidence establishes that Defendant paid a stated price for the cocaine that he purchased and there is no evidence that he turned over profits from his resale of cocaine to the Brito conspiracy. In contrast, admitted co-conspirators, Gaton and Hernandez, did not pay for the drugs that they delivered and they both turned over monies collected from buyers to the Brito conspiracy.
Defendant's post-arrest statement and the trial testimony of Gaton and Hernandez support a finding that Defendant paid $120 per eightball for the cocaine that he purchased from the Brito conspiracy. Gaton testified that some other customers paid up to $140 or $150 per eightball, which may indicate either that Defendant received a discount or that some other customers were charged a premium. In any event, it appears that Defendant paid a retail price for the cocaine that he purchased from the Brito organization.
Furthermore, there is no evidence that Defendant held a position of trust within the Brito conspiracy or that he was otherwise invested in the success of the Brito conspiracy; unlike Hernandez and Gaton, the Britos did not provide Defendant with a pager or cell phone, nor did they front drugs to him. Likewise, the record is devoid of any indication that the Brito conspiracy exerted any control over Defendant or had any particular interest in Defendant's disposition of the drugs that he purchased, outside of obtaining the agreed upon sale price for each purchase. See Koch, 113 F.2d at 983 (finding no conspiracy where the buyer "bought at a stated price and was under no obligation to [the seller] except to pay him that price.").
Significantly, Heranandez and Gaton did not have any specific knowledge of what Defendant did with the cocaine that he purchased. Indeed, there is no evidence at all that the Brito conspiracy had any direct stake in Defendant's sales of cocaine or was in any way involved in trying to effectuate or promote his sales. Cf. Zambrano, 776 F.2d at 1094 (to find membership in conspiracy, there must be some evidence that a defendant promoted the venture, made it his own, or had a stake in the outcome) (citations omitted).
Specifically, Gaton testified that he delivered drugs to customers, including Defendant, and had no idea what the customers did with the drugs that they purchased.
Nor does the record support a finding that Defendant intended to further the interests of the Brito conspiracy. There is no evidence that Defendant "function[ed] as a go-between, facilitator, sales agent, [or] general helper" in the Brito conspiracy. Lechuga, 994 F.2d at 350. Moreover, there is no evidence that Defendant had any particular stake in the success of the Brito conspiracy. See Zambrano, 776 F.2d 1095 (evidence that a defendant had "a `stake in the venture'. . ., even if not a crucial element, tends to prove the question of intent and agreement necessary to sustain a conspiracy charge.") (citation omtited). Indeed, Defendant's relationship to the Brito conspiracy stands in stark contrast to that of Hernandez and Gaton, both of whom clearly held positions of trust within the conspiracy, distributed cocaine on its behalf and shared in its success. Cf. Lechuga, 994 F.2d at 348 ("Someone who provides an input into another's business usually cares only about selling the input, not about furthering the other's business. It is different when the buyer is the seller's distributor, [however,] without whom the seller cannot reach the market for his product").
It is the Court's opinion that the law of conspiracy in this Circuit demands proof beyond a reasonable doubt that Defendant intended to further or advance the Brito conspiracy's interests, not that he inadvertently or incidentally did so by buying, using and/or selling drugs that he obtained from the Brito conspiracy. Cf. Direct Sales Co. v. United States, 319 U.S. 703, 713 (1943) (inferring a conspiratorial agreement from evidence of "informed and interested cooperation, stimulation, [and] instigation. . . ."); United States v. Beech-Nut Nutrition Corp., 871 F.2d 1181, 1191 (2d Cir. 1989) (same) (quotation omitted). The record in the instant case simply does not support a finding that Defendant intended to further or advance any joint interest with the Brito organization beyond the consummation of the underlying narcotics transactions. For the foregoing reasons, the Court finds that the Government has failed to prove Defendant's membership in the conspiracy charged in the superseding indictment beyond a reasonable doubt.
As stated, the evidence adduced at trial clearly establishes that Defendant sold an unknown quantity of cocaine on an unknown number of occasions. The Court notes, however, that Defendant was not charged with the underlying offense of possession with intent to distribute and distribution of a controlled substance pursuant to 21 U.S.C. § 841(a)(1). Even if the evidence at trial were sufficient to establish that Defendant violated § 841(a)(1), "[a] conspiracy conviction is not a simple substitute for a drug distribution conviction." United States v. Rivera, 273 F.3d 751, 756 (7th Cir. 2001) ("No matter how overwhelmingly the government showed [defendant's] participation in drug sales, it did not show his agreement to join in a further crime.").
IV. CONCLUSION
After carefully considering the evidence adduced at trial, the applicable law, and for the reasons stated herein, the Court hereby finds that Defendant Luis I. Santiago is NOT GUILTY of the crime charged; and the Court furtherORDERS that the Clerk of the Court enter a JUDGMENT OF ACQUITTAL with respect to Count I of the superseding indictment dated August 23, 2001, as it applies to Defendant Luis I. Santiago, and close this case.
IT IS SO ORDERED.