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Maria H. Luis R. Rivera, Old San Juan, P. Jorge E. Vega-Pacheco, Asst. Lopez-Romo, U. Between December 11, , and January 31, , Alvin G. A hidden tape recorder recorded each of these transactions, and these tapes, along with the agent's testimony, were the primary evidence at the trial of the seven appellants. All seven were found guilty of conspiracy to distribute heroin. Epifanio Martinez-Torres as some other defendants have the same family name, we will use the given one: Epifanio , was also found guilty of five counts of possession with intent to distribute and four counts of distribution. Hector Burgos was also found guilty of three counts of possession with intent to distribute, and Elvin Perez-Soto was also found guilty of two counts of possession with intent to distribute, and each of these three was also found guilty of two counts of distribution. These defendants do not contest the sufficiency of the evidence to convict them as conspirators, but the other four do. We will start with the one whose claim in this respect is the strongest. Our previous opinions on this subject, see, e. Rivera-Santiago, F. DeLutis, F. Suffice it to say that the government must present clear evidence sufficient to establish beyond a reasonable doubt that an agreement to commit the substantive offense actually existed, and that the individual defendant knew of the agreement, had intent to agree, and had intent to commit the substantive offense. Here, the first part, whether a conspiracy to distribute heroin existed, is not contested, and we need only determine whether, viewing the evidence in the light most favorable to the government, there was sufficient proof of each defendant's knowledge and intent. The direct evidence against Luis Alfredo Martinez-Torres Alfredo , supplied both by the tape of his conversations with Aponte, and Aponte's testimony about the conversation, indicates that when informed that Aponte wished to purchase 'packs of one hundred,' Alfredo:. While this evidence may sufficiently establish that Alfredo knew of, and intended to aid and abet, the scheme to distribute heroin, it sheds no illumination on the essence of Alfredo's conspiracy conviction: his intent to agree to facilitate the distribution. There exists, however, additional circumstantial evidence implicating him. Later that same day, Epifanio, after negotiating a price for the heroin, gave the same direction provided earlier by Alfredo, namely, to go to a store in the area, and that when Aponte went to the store, he indeed received packs of heroin. Alfredo thus not only provided a prospective heroin purchaser with a warning about police in the area and advice on avoiding arrest, that anyone might do as a friend, but also gave instructions that turned out to be correct on where to go to purchase packs of heroin. In addition, Aponte testified, and the tape could be found to confirm, that Epifanio later told him that when Epifanio was not available it was possible to negotiate with Alfredo. While this last could not establish a conspiracy, it corroborates. DeLutis, ante, that we should accept the jury's verdict. It is not without significance that this was not a hanging jury, but, rather, one that acquitted defendants on a number of counts. Thus Santos Jesus Martinez-Torres Santos was convicted on the conspiracy count and acquitted on six others. He, as other defendants, attempts to parse the evidence against him, and place each discrete piece in an innocuous context. Such arguments hardly merit consideration. The agreement comprising the conspiracy need not be shown by direct evidence, and a defendant cannot escape conviction by dividing the evidence into separate single transactions, each of which is an insufficient basis for inferring that an agreement exists. See DeLutis, F. Here, the 'development and See Glasser v. United States, U. The claims of Esnoel Lopez Pena and Fernando Rupert-Gonzalez, also convicted of conspiracy and acquitted on the other counts, are similarly unpersuasive, and we but summarize the evidence constituting a sufficient basis for inferring that they, also, agreed to participate in the conspiracy. A tape recording made on January 31 indicates the following conversation between Aponte, the informant, and a man identified by the agent as Rupert-Gonzalez:. Rupert-Gonzalez also discussed the price of the heroin, asked the agent and informant where they would wait, and, the agent testified, said he would send someone to speak with them. Aponte testified that on January 17, after arranging the payment for a heroin purchase with Epifanio, he was directed to a store where Lopez Pena was waiting, that Lopez Pena signalled him to stop, and Burgos, who was standing next to Lopez Pena, then delivered bags containing heroin to the agent. Later, on January 31, the agent approached Lopez Pena and the conversation was recorded:. Aponte: It's to see if we can negotiate another pack. Couldn't you get him while I talk to him there, to leave the money with him now over there? Lopez Pena: But, I can't tell you that I'll be able to get him for you, because I don't know where he is. You know, the one who deals is Fany. Lopez Pena then summoned Burgos and remained present for a conversation between Burgos and the agent about the purchase of one hundred packs of heroin. For four of the transactions for which Epifanio was convicted of distribution, and for two of the transactions for which Perez-Soto and Burgos were convicted of distribution, the three defendants were also convicted of possession with intent to distribute. Epifanio's argument, joined by Perez-Soto and Burgos, that the trial court erred in not ordering the government before trial to elect between the possession with intent to distribute and distribution counts, offenses clearly involving different elements, is so unsubstantiated as to not merit discussion. See Blockburger v. Palafox, F. Cortes, F. Woods, F. An issue that, if presented on appeal, would have merited discussion is whether the trial court properly sentenced defendants for both distribution and possession with intent to distribute with relation to each transaction. Because appellants do not contend in their briefs that the trial court erred in imposing sentences for both counts for each transaction, but rather seek vacation of their sentences to remedy the alleged error in failing to order the government to elect between counts, we need not discuss this issue here. Bay State Abrasives, F. All defendants join in asserting a host of errors relating to transcripts not admitted in evidence but used by the jury as an aid in listening to the recordings as they were played. The proper procedures to be followed in using transcripts of recordings admitted in evidence are indicated in our prior opinions. See United States v. Carbone, F. Rengifo, F. In Carbone, as in this case, 'there was no testimony by anyone as to how the transcripts were made,' prior to their use by the jury. Although we held that because of the circumstances of that case it was not an abuse of discretion for the trial judge to allow the jury to use the transcripts, we recommended,. Nolan, F. Here, however, defendants did not, prior to the jurors' use of the transcripts, make specific objections to the accuracy of the words that were transcribed. Rather, defendants objected to the accuracy of the identification of the voices:. I was able to see and perceive from I don't know if Your Honor feels that is a matter of credibility; if it is a matter of the weight, it is a matter of cross examination to be taken and then the jury to decide as a matter of credibility. Your point is in the record. Earlier in the trial, Aponte testified that he himself had made the identifications indicated in the transcripts, based on his own participation as an undercover agent in the conversations being transcribed. We do not think it was an abuse of discretion for the court to determine that the transcript voice identifications were thus sufficiently accurate to be presented to the jury as an aid. Earlier drafts of the government's transcripts contained voice identifications for certain statements different from those in the version presented to the jury. Defendants sought to present those earlier versions to the jury to show the unreliability of the government's transcripts' voice identifications, and now contest the court's ruling that the earlier versions would not be shown to the jury unless introduced by the defendants in evidence. This is different from the situation discussed in Rengifo, where we held that when the content of a recording is contested, 'each party should be allowed to introduce its own transcript of the recording provided that it is properly authenticated. Here, there was no authentication of the voice identifications in the earlier drafts; the agent specifically testified that the earlier identifications were incorrect. There was no abuse of discretion in not permitting the jury to see the earlier drafts without admitting them in evidence. Defendants also assert that their convictions must be vacated because each of the transcripts used by the jury contained on its last page the following certification:. Inclusion of the certification in the copies used by the jury was an error, a particularly needless error, given the ease with which it could have been avoided. Aside from the fact that defendants did not specifically object to the certification being included in the transcript copies, we think the error was harmless for two reasons. First, the court repeatedly instructed the jury that the transcripts were not evidence, but only an aid, and that what the jurors heard on the tape is what controlled. Second, defendants, through cross-examination, elicited testimony that Aponte made corrections to the typed transcripts after the certification by the typist, thus diluting any weight a juror might have placed on the certifications as an indication of the transcripts' accuracy. It was not error for the court to refuse to instruct the jury completely to disregard the transcripts; the earlier limiting instructions were adequate and in accord with the law in this circuit. In addition to reliance on more general points advanced by other defendants, Burgos complains because of the court's refusal to admit the deposition of a psychiatrist, a Dr. Cabrera, appointed by the court to determine his capacity to stand trial. Cabrera found such capacity, including the ability to understand and to assist counsel, and that defendant was not insane. The doctor went on to express his opinion as to certain believed defects in Burgos' mental capacity, though conceding that they fell short of an inability to distinguish between right and wrong. Burgos was weak willed, and easily led; 'dependent,' and with a low IQ, of 'borderline' intelligence. If the record, from which Burgos quotes liberally, said what he might wish it said, we might have been required to examine our opinions in United States v. White, F. Kepreos, F. Twine, F. Pohlot, F. He is a person who doesn't have the intelligence nor the malice Burgos to be capable of planning a scheme to distribute heroin? This was a much more sophisticated issue than whether defendant could intend to participate in the plan once he learned of it. If we could be persuaded by the reasoning of United States v. Pohlot, ante, to distinguish with respect to diminished capacity and mens rea, it would not be where the asserted diminished capacity was testified to other than on the issue in question. Given the facility of psychiatric opinions, the flood gates would be opened. Finally, all defendants except Burgos and Lopez Pena contest the legality of their sentences because of the district court's failure to comply with Fed. As we have done in the past, see United States v. Jimenez-Rivera, F. Serino, F. The convictions of all appellants are affirmed. Appeal Nos. We are not assisted by Alfredo, and another defendant, in separate briefs, citing in their favor, in terms of being controlling, United States v. Alvarez, F. It is peculiarly not controlling, since it was reversed en banc. See, also, ns. Lopez Pena's arguments that the audio tape recordings prove he could not have given a visual signal to the agent to stop, and that he could not have been standing next to Burgos are entirely unpersuasive. Neither defendants nor the government cite any of these cases, which are directly on point. Defendants also fail to distinguish, or even cite, any of the many cases holding that a single drug transaction can lead to convictions for both distribution and possession with intent to distribute. We note, however, that had this issue been raised on appeal, based on the evidence presented at trial we would not have reached a different result. Carcaise, F. We note that the prosecutor in this case, who also appears before us in this appeal, also argued the appeal in Carbone, and should have been well aware of our recommendations on the authentication of transcripts used as a jury aid. When this court makes specific recommendations on evidentiary matters, it ill behooves a prosecutor to flirt with reversal by not following them. We note the doctor's concession of the generous number of Puerto Ricans that would be comprehended by this classification, and the number of defendants who might, accordingly, assert such a defense. Neither Burgos nor the government cites Twine or Pohlot, cases that are directly on point on the issue Burgos alleges is present in this case. Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes. Esnoel Lopez-pena, Defendant, Appellant. United States of America, Appellee, v. Elvin Perez-soto and Fernando Rupert-gonzalez, Defendants,appellants. Santos Jesus Martinez-torres, Defendant, Appellant. Luis Alfredo Martinez-torres, Defendant, Appellant. Decided Nov. This certification was followed by the signature of the typist. He doesn't have the intelligence nor the malice to do it. Enter Your Email. Justia Legal Resources. Find a Lawyer. Law Schools. US Federal Law. US State Law. Other Databases. Marketing Solutions.

Puerto Cortes buying Heroin