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United States v. Guzman-Ortiz

United States District Court, D. Massachusetts

March 14, 2019




         On June 19, 2018, a jury convicted defendant of conspiring with Oristel Soto-Peguero to distribute and possess with intent to distribute heroin, Count 6 of the Superseding Indictment[1] (Docket # 82). See 21 U.S.C. § 846. The jury failed to reach a verdict on Count 4 that charged the substantive offense, possession of heroin with intent to distribute in violation of 21 U.S.C. § 841(a)(1). See Docket # 240. Now before me is defendant's renewed motion for judgment of acquittal (Docket # 241).

         I. Factual Background

         The court reviews the evidence presented at trial, including all reasonable inferences which may be drawn therefrom, in the light most favorable to the government. See United States v. Hyson, 721 F.2d 856, 860 (1st Cir. 1983). This evidence pertains almost entirely to events that occurred in the afternoon and evening of July 6, 2015, at 632 Norwest Drive, Norwood, Massachusetts, the residence of co-defendants Soto-Peguero and Cabral. Because Cabral had earlier pled guilty to the charges against her and Soto-Peguero was found guilty in a separate trial, Guzman-Ortiz was the sole defendant in the instant proceeding. In this trial the government presented the testimony of five law enforcement personnel, two agents of the Drug Enforcement Administration (“DEA”), as well as three state and local police officers who were part of an anti-crime task force that worked with the DEA, all hereafter referred to as “agents.” The evidence also included photographs, substances found in bags, charts reflecting tests on substances seized, and transcripts of intercepted telephone calls and messages.

         The evidence showed that at 1:43 p.m. on that day, Eddyberto Mejia-Ramos, known to the agents as a heroin dealer in Taunton, Massachusetts, spoke by telephone with Soto-Peguero, who was one of his suppliers. Law enforcement agents, who had been conducting a months-long wiretap investigation of Mejia-Ramos, intercepted the call. Soto-Peguero told Mejia-Ramos, “Call me because ... because I have a lot of food .... I have a lot of food around. I got ready for you.” Tr. Ex. 1.1. “Food” was a code word for heroin. Mejia-Ramos told Soto-Peguero, “I'll call you ... around three, between three and four I'll call you.” Id.

         Based on this call, agents established surveillance of the Norwood apartment that afternoon. They observed no activity until around 6:00 p.m., when Cabral left the apartment in a car and apparently went grocery shopping. She returned about an hour later, entered the apartment briefly, and then fetched the groceries from her vehicle, assisted by defendant and Soto-Peguero. This was the first notice of defendant's presence at the apartment. The agents had not known of, or seen, defendant before that day.[2]

         At 8:57 p.m. that evening, after a short exchange of text messages, Mejia-Ramos called Soto-Peguero and said “I'll be ready ... Get here at ten .... Send me something heavy, heavy duty.” Tr. Ex. 1.3. “[S]omething heavy” meant a large amount of heroin. Soto-Peguero replied that he would send Cabral, and she left the apartment shortly thereafter. In a 9:38 p.m. phone call, Soto-Peguero informed Mejia-Ramos: “she's around there on her way, the woman. In twenty minutes, half an hour around there.” Tr. Ex. 1.4. None of the intercepted communications referred to or were exchanged with defendant, nor was there any evidence of his knowledge thereof.

         Agents followed Cabral as she traveled towards Taunton and coordinated a stop of her vehicle. She was arrested after police seized from her purse 918 grams of heroin in the form of seven to ten bricks wrapped in green cellophane. Although forensics later identified latent fingerprints on the bricks matching Soto-Peguero's, no such evidence of defendant's participation was adduced.

         Shortly after Cabral's arrest, around 10:00 p.m., agents approached the front and rear entrances of the Norwood apartment to enter and freeze the premises pending issuance of a search warrant. A detective knocked on the front door and yelled loudly to announce the presence of the police. No. one answered, but the agents heard movement within the apartment. As they tried unsuccessfully to breach the front door with a ram, Soto-Peguero and defendant apparently moved upstairs and were observed at the window in the front upstairs bedroom. The agents then broke the glass sliding door at the back of the apartment, gained entry and opened the front door. They ordered Soto-Peguero and defendant to come downstairs and arrested them.

         The agents found heroin and drug distribution paraphernalia throughout the apartment. One kilogram of heroin, wrapped entirely in black electrical tape, was partially stuffed in an air vent below the window in the upstairs room where defendant and Soto-Peguero had been observed during the attempted front door entry. That room was sparsely furnished with only an air mattress (without bedding), the box therefor, some suitcases, and miscellaneous items on the floor. In a second upstairs bedroom, the agents located 834 grams of heroin inside a black plastic bag, as well as six cell phones and a smaller portion of heroin. This room also contained a bed, but with bedding, night stands, two bureaus, women's and men's clothing, and pictures of Soto-Peguero and Cabral together. The evidence suggests that this was Soto-Peguero and Cabral's bedroom. The evidence is not clear, however, as to defendant's presence in that room at any time.

         Downstairs, the apartment comprised a sparsely furnished living room and an open area with a kitchen. In the kitchen dirty pans were on the stove and the remnants of a fried chicken dinner, on the counter. Two items associated with drug distribution activity were plainly visible: the base of a blender or grinder sitting in the center of the living room floor, and a roll of green cellophane wrapping material similar in appearance to the material used for wrapping the heroin found on Cabral. Other drug distribution paraphernalia was located behind closed doors or otherwise out of sight: inside a hallway closet, agents found a small bag of heroin, cutting agent, zip lock bags, aluminum mixing bowls with drug residue, a digital scale, and a mold for use in a hydraulic drug press; in a bathroom/laundry area, the drug press itself was found inside a large bag. There was no evidence that the drug distribution paraphernalia had been used on the day in question, or that the heroin seized from Cabral had been prepared and packaged that day, or that defendant was aware of or had participated in such activities.

         Defendant moved for judgment of acquittal at the close of the evidence. Though the court maintained the view that “this is a very, very, very thin case, ” Tr. 2-90, it allowed the jury to render a verdict. After his conviction on the conspiracy count only, defendant renewed his motion. The matter was thereafter briefed by both parties.

         II. Legal Principles

         A. ...

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