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United States v. Martinez-Mercado

United States Court of Appeals, First Circuit

March 25, 2019



          Victor J. Gonzalez-Bothwell, with whom Eric Alexander Vos, Federal Public Defender, District of Puerto Rico, Vivianne M. Marrero, Assistant Federal Public Defender, Supervisor, Appeals Section, and Andrew S. McCutcheon, Assistant Federal Public Defender, were on brief, for appellant.

          Julia M. Meconiates, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

          Before Howard, Chief Judge, Thompson and Kayatta, Circuit Judges.


         A jury found Francisco Martínez-Mercado guilty of conspiracy to deprive a person of civil rights in violation of 18 U.S.C. § 241. The district court then sentenced him to eighty-seven months in prison. On appeal, Martínez-Mercado challenges the sufficiency of the evidence against him, the admission of evidence under Federal Rule of Evidence 404(b), the exclusion of certain testimony, the denial of his new-trial motion based on newly discovered evidence, and the appropriateness of his sentence. For the following reasons, we affirm.


         Although we review the facts relevant to Martínez-Mercado's sufficiency challenge in the light most favorable to the government, we also "provide a more or less neutral summary" of the facts relevant to his remaining claims and reserve further exposition of those facts for our later analysis. See United States v. Flores-Rivera, 787 F.3d 1, 9 (1st Cir. 2015).

         The events underlying Martínez-Mercado's conviction took place in September of 2010. At that time, Martínez-Mercado was working as a Task Force Officer ("TFO") for the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF"). He had previously worked in the Drugs Division of the Puerto Rico Police Department ("PRPD"), where Jorge Fernández had been his supervisor. The alleged conspiracy included PRPD officers Pedro López-Torres and Luis Ramos-Figueroa, both of whom eventually cut a deal and testified on behalf of the government.

         At trial, López-Torres testified that on September 15, 2010, Fernández told López-Torres that Martínez-Mercado was "going to do a job in the area[] of Carolina" and "need[ed] help in doing that job." Fernández and López-Torres had worked illegal "jobs" together in the past, and López-Torres was conveniently serving in the Property Division of the Carolina Criminal Investigations Unit at the time. Based on Fernández's assurances that Martínez-Mercado was trustworthy, López-Torres eventually agreed to take a call from Martínez-Mercado. Martínez-Mercado called López-Torres almost immediately, and they arranged to meet in person to discuss the job.

         That same day, López-Torres contacted Ramos-Figueroa, "[b]ecause he was the person that [López-Torres] trusted to do . . . illegal jobs." The two met up to talk about the potential job in Carolina. Ramos-Figueroa agreed to participate in whatever scheme might unfold.

         Days later, López-Torres and Martínez-Mercado met at a gas station to go over the details of the plan. According to López-Torres, Martínez-Mercado said he had hired "some thugs, meaning street criminals," to break into an apartment to steal "money, jewelry and controlled substances, drugs." Martínez-Mercado explained that the apartment belonged to someone who had recently been arrested by ATF. López-Torres agreed to provide "security" and "communication" using his police patrol car and radio. López-Torres testified that he used his patrol car on jobs so "that people would believe that a legal activity was being conducted there by the police." Additionally, if he heard a complaint come in over the radio, he would warn his co-conspirators and attempt to divert any potential investigation.

         On September 23, Martínez-Mercado called López-Torres to tell him that they would execute the plan that evening. López-Torres relayed the information to Ramos-Figueroa. While López-Torres was on duty, he met up with Martínez-Mercado at around 7:00 p.m. in the parking lot of a local supermarket. Ramos-Figueroa joined them shortly thereafter. Martínez-Mercado was driving a mini-van, and both López-Torres and Ramos-Figueroa testified that they could see the silhouettes of at least two other people in the back of the van.

         Following a signal from Martínez-Mercado, López-Torres and Ramos-Figueroa drove out of the parking lot in López-Torres's patrol car and trailed the van to the PlayaMar condominium complex. López-Torres parked at the end of the street, while the van remained in front of the building. They watched as two or three people jumped out of the van and entered the complex. López-Torres and Ramos-Figueroa kept their eyes on the van and listened to the police radio. After they saw the van's interior lights turn on, they left the area.

         When López-Torres and Martínez-Mercado reconvened as planned, Martínez-Mercado handed López-Torres about $3, 000 to split with Ramos-Figueroa. Martínez-Mercado explained that "there wasn't that much" in the apartment, just "about $6, 000 to $7, 000 and some jewelry."

         López-Torres spoke with Martínez-Mercado over the phone several times over the next week. During one of those conversations, López-Torres informed Martínez-Mercado that a complaint had been filed the day after the break-in. The morning of September 24, another officer, Josue Cosme-Rosa, took photographs of the "ransacked" PlayaMar apartment and concluded that the balcony door had likely been forced open.

         The district court allowed the government to introduce so-called "bad acts" evidence under Federal Rule of Evidence 404(b), over objection, through the testimony of two other former PRPD officers, Rafael Ramos-Veléz and Miguel Pagán. The government also presented telephone records and historical cell-site data. This evidence confirmed that Martínez-Mercado, Fernández, and López-Torres had been in contact by phone on September 15 and showed nineteen calls between Martínez-Mercado and López-Torres on the night of the Carolina job. The cell-site data also showed that Martínez-Mercado's and López-Torres's cell phones were in the area of the PlayaMar that night.

         Near the end of the case against him, Martínez-Mercado alleged that the government delayed the production of an FBI report, which detailed an interview with another PRPD officer, Yaritza Cruz-Sánchez, who had investigated the PlayaMar complaint. The district court determined that, although the report was not disclosed until the day before trial, it was not exculpatory or impeaching under Brady v. Maryland, 373 U.S. 83 (1963). The court did not permit the introduction of the report and also denied Martínez-Mercado's request to issue a material-witness warrant for Cruz-Sánchez.

         Martínez-Mercado takes issue with two further district court actions during the presentation of his case. First, the district court excluded the testimony of ATF Agents Jean Carlos Rivera and Julio Torres about an ATF investigation that Martínez-Mercado contends would have accounted for his communications with Fernández and López-Torres. After hearing the agents' testimony outside the presence of the jury, the court concluded that they did not have any relevant information. Second, although the district court allowed Fernández to testify, the court advised him of his Fifth Amendment rights three times, and Fernández invoked his right against self-incrimination in response to questioning on cross-examination.

         On February 26, 2016, after a five-day trial, the jury found Martínez-Mercado guilty of conspiring to violate civil rights. The district court denied his renewed motion for acquittal under Federal Rule of Criminal Procedure 29 and subsequently denied each of his new-trial motions pursuant to Federal Rule of Criminal Procedure 33.



         Martínez-Mercado appeals the denial of his motions for judgment of acquittal based on the insufficiency of the evidence. See Fed. R. Crim. P. 29(a). We review a district court's denial of a Rule 29 motion de novo, asking "whether, after assaying all the evidence in the light most amiable to the government, and taking all reasonable inferences in its favor, a rational factfinder could find, beyond a reasonable doubt, that the prosecution successfully proved the essential elements of the crime." United ...

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