                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-11-2006

USA v. Rodriguez-Sanchez
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3222




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                                                       NOT PRECEDENTIAL

               UNITED STATES COURT OF APPEALS
                    FOR THE THIRD CIRCUIT
                         _____________

                             No. 05-3222
                            _____________

                   UNITED STATES OF AMERICA

                                   v.

                  RUFINO RODRIGUEZ-SANCHEZ,

                                                 Appellant

                     ________________________

                     Appeal from the District Court
                           of the Virgin Islands
             (Division of St. Thomas, No. 01-cr-00298-1)
           Chief District Judge: Honorable Raymond L. Finch
                     ________________________

                        Argued on May 8, 2006


        BEFORE: FISHER, COWEN and ROTH*, Circuit Judges


                   (Opinion Filed: October 11, 2006)




                               OPINION




*Judge Roth assumed senior status on May 31, 2006.
Thurston T. McKelvin, Esquire (Argued)
Office of the Federal Public Defender
P. O. Box 223450
Christiansted, St. Croix
USVI, 00822

              Counsel for Appellant

Anthony J. Jenkins, Esquire
United States Attorney
Major R. Coleman, Esquire (Argued)
Assistant United States Attorney
Office of the United States Attorney
United States Courthouse
5500 Veterans Building, Suite 260
Charlotte Amalie, St. Thomas
USVI, 00802-6424

              Counsel for Appellee




                                       OPINION




ROTH, Circuit Judge:

       Rufino Rodriguez-Sanchez appeals his conviction and sentencing by the District

Court for the Virgin Islands. He challenges the sufficiency of the evidence, the decision

of the District Court not to sever his cause from his co-defendants’, the admission of

certain evidence, and the sentence. For the reasons set forth below, we will affirm.

I. Background and Procedural History

                                             2
       Because the parties are familiar with the facts and procedural posture, we will

provide only a brief synopsis of the events leading up to this appeal.

       In October 2001, Rodriguez-Sanchez was indicted, along with a number of co-

defendants, on three counts of violating federal drug laws.1 After the District Court

denied Rodriguez-Sanchez’s motion to sever and his pretrial motion in limine to exclude

certain video and audio surveillance evidence, trial commenced against Rodriguez-

Sanchez and three co-defendants. The government put forth its evidence, and the

defendants, including Rodriguez-Sanchez, rested on the grounds that the government had

failed to prove their guilt beyond a reasonable doubt. All defendants were convicted, and

Rodriguez-Sanchez was sentenced to 250 months imprisonment to be followed by five

years of supervised release. On June 23, 2005, Rodriguez-Sanchez filed a timely notice

of appeal.

II. Jurisdiction

       The District Court of the Virgin Islands had jurisdiction pursuant to 48 U.S.C. §

1612. We have jurisdiction over this appeal from a final judgment and commitment order

by virtue of 18 U.S.C. § 3742 and 28 U.S.C. § 1291.


   1
    The first Count alleged a conspiracy to possess with intent to distribute five or more
kilograms of a substance containing a detectable mixture of cocaine. 21 U.S.C. §§
841(a)(1), (b)(1)(A)(ii) and 846. Count Two charged a conspiracy to import five or more
kilograms of a substance containing a detectable amount of cocaine. 21 U.S.C. §§ 952(a),
963 and 960(b)(1)(B)(ii). Finally, Count Three charged a conspiracy to possess five
kilograms or more of a substance containing a detectable amount of cocaine. 46 U.S.C. §
1903 and 18 U.S.C. § 371.

                                             3
III. Analysis

A. Sufficiency of the Evidence

       Rodriguez-Sanchez argues, as he did following the government’s case-in-chief and

after the jury returned a verdict of guilty, that he deserves a new trial based on

insufficiency of the evidence. Our standard of review is “particularly deferential,” and

we will sustain a verdict if “any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” United States v. Dent, 149 F.3d 180,

187 (3d Cir. 1998) (citing United States v. Voigt, 89 F.3d 1050, 1080 (3d Cir. 1996)

(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979) (alteration in Dent))). In

conducting our review, we consider the evidence in the light most favorable to the

government. United States v. Brown, 3 F.3d 673, 680 (3d Cir. 1993) (citations omitted).

After a thorough review of the record, we believe the evidence of conspiracy was

sufficient for a rational jury to conclude beyond a reasonable doubt that Rodriguez-

Sanchez was guilty of the crimes charged.

       To prove conspiracy, the government must establish (1) a unity of purpose

between the alleged conspirators, (2) an intent to achieve a common goal, and (3) an

agreement to work together toward that goal. United States v. Gibbs, 190 F.3d 188, 197

(3d Cir. 1999) (citing United States v. Robinson, 167 F.3d 824, 829 (3d Cir. 1999)). The

government may satisfy its burden of proof entirely by way of circumstantial evidence.



                                              4
Id. Viewing the evidence in the light most favorable to the government, there was

testimony showing a conspiracy to transport drugs from Columbia through Venezuela to

the Virgin Islands. As to Rodriguez-Sanchez’s involvement in the conspiracy, the

government put forth testimony from a coconspirator that Rodriguez-Sanchez was a

member of the team assembled to smuggle the drugs and was present at a meeting

between the group members where the object of the conspiracy was discussed.

Additionally, and perhaps most compellingly, Rodriguez-Sanchez was on-board one of

the two vessels stopped by United States and British authorities after coming together in

an apparent drug drop-off.2 Taken as a whole, we believe that a rational fact-finder could

have found that Rodriguez-Sanchez entered a conspiracy to violate the statutory sections

listed in the indictment.

B. Severance

       Prior to trial, Rodriguez-Sanchez moved to have his cause severed from his co-

defendants’. The District Court denied the motion. We review the denial of a motion for

severance for abuse of discretion. United States v. Hart, 273 F.3d 363, 369 (3d Cir.

2001) (citing United States v. Sharma, 190 F.3d 220, 230 (3d Cir. 1999)).




   2
    Although cocaine was not recovered from the vessel Rodriguez-Sanchez was
apparently navigating, it was a “go-fast vessel” (22 feet long, open hull, with twin 90
horsepower engines) that contained paraphernalia for concealing drugs. Moreover, the
authorities noted the two vessels, running lights off despite the dark sky, come together
roughly 15 miles offshore. From this evidence, it was permissible for the jury to draw an
inference that Rodriguez-Sanchez was part of a group perpetrating an illicit transaction.

                                            5
       Severance is required “only if there is a serious risk that a joint trial would

compromise a specific right of one of the defendants, or prevent the jury from making a

reliable judgment about guilt or innocence.” United States v. Thornton, 1 F.3d 149, 153

(3d Cir. 1993) (quoting Zafiro v. United States, 506 U.S. 534, 539 (1993)); see also F ED.

R. C RIM. P. 14. Given the similarity of the relevant evidence, the lack of undue prejudice,

and the interest in judicial economy, the decision to hold a joint trial was not an abuse of

discretion. See United States v. Balter, 91 F.3d 427, 432-33 (3d Cir. 1996); United States

v. Sarracino, 340 F.3d 1148, 1175 (10th Cir. 2003) (rejecting argument that severance

was required where defenses were not antagonistic, evidence would have been admissible

in a separate trial, and proper jury instructions were provided).3




C. Admissibility of Audio and Video Evidence

       Out-of-court statements from coconspirators are admissible against a fellow

conspirator pursuant to F ED. R. E VID. 801(d)(2)(E).4 Before such evidence can be offered

   3
     That Rodriguez-Sanchez did not suffer undue prejudice by virtue of the joint trial is
underscored by the fact that none of the defendants put forth direct evidence, relying
instead on their hope that the jury would find that the government did not meet its burden
of proof. The absence of conflicting theories from the defense makes the concerns raised
by joint trials far less pressing. See United States v. Banks, 687 F.2d 967, 973 (7th Cir.
1982) (noting that defenses that did not conflict did not warrant severance). Moreover,
the jury was properly instructed to weigh evidence against only those defendants to which
it pertained.
   4
    Although this type of evidence involves out-of-court statements offered for the truth
of the matter asserted, the Federal Rules of Evidence consider it to be non-hearsay rather
than to fall within an exception to the hearsay rules. F ED. R. E VID. 801(d).

                                              6
at trial, however, the District Court must, by a preponderance of the evidence, find that:

(1) a conspiracy existed, (2) the person whom the statements are being offered against

was a member of the conspiracy, (3) the statements were made in the course of the

conspiracy, and (4) the statements were made in furtherance of the conspiracy. Bourjaily

v. United States, 483 U.S. 171, 175 (1987); United States v. Vega, 285 F.3d 256, 264 (3d

Cir. 2002) (citations omitted). Rodriguez-Sanchez claims that the District Court erred by

failing to make the requisite findings before admitting the video and audio tape evidence.

Whether the District Court conducted the required analysis is a question of law which we

review de novo. See Savarese v. Agriss, 883 F.2d 1194, 1200 (3d Cir. 1989) (quoting In+

re Japanese Elec. Prods., 723 F.2d 238, 257 (3d Cir. 1983) (rev’d on other grounds, sub

nom. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986))). The

District Court’s factual findings are reviewed for clear error. Vega, 285 F.3d at 264.

       The District Court heard argument on Rodriguez-Sanchez’s motion in limine to

prohibit the introduction of the video and audio evidence and denied it. As to a potential

801(d)(2)(E) problem, the District Court admitted the evidence subject to a motion to

strike if proceedings during the trial ultimately revealed, despite initial impressions to the

contrary, that the evidence was not related to the conspiracy. We believe the District

Court’s decision comported with the requirements of F ED. R. E VID. 801 because the

government established that the video tapes showed indicted coconspirators (including

Rodriguez-Sanchez) meeting together and going to inspect one of the vessels that would



                                              7
later be used in the drop-off. As to the audio tapes, the government established that they

included conversations between an indicted coconspirator (with whom Rodriguez-

Sanchez was seen in the video) and unindicted coconspirators. The course of the trial

gave the District Court no reason to question its earlier ruling because the government

further connected Rodriguez-Sanchez to the conspiracy.

D. Sentencing

       In his final argument, Rodriguez-Sanchez seeks to assign error because the District

Court, rather than the jury, concluded the total drug weight for which Rodriguez-Sanchez

was held responsible. This argument is unavailing. Rodrigeuz-Sanchez was sentenced

after the Supreme Court’s seminal decision in United States v. Booker, 543 U.S. 220

(2005), and the District Court sentenced Rodriguez-Sanchez within the statutory

maximum,5 operating under an advisory Guidelines regime. Accordingly, there is no

constitutional error. Id.; Apprendi v. New Jersey, 530 U.S. 466 (2000).

IV. Conclusion

       For the reasons set forth above, the judgment of conviction and sentence will be

affirmed.




   5
    Rodriguez-Sanchez was sentenced to 250 months. The statutory maximum for his
offenses of conviction is life imprisonment. See, e.g., 21 U.S.C. § 841(b).

                                             8
