The Things We Do For Love

United States v. Caraballo, No. 08-4640-cr (2d Cir. November 5, 2009) (Leval, Raggi, Livingston, CJJ)

Gilberto Caraballo was a large-scale drug supplier in the Sunset Park section of Brooklyn. In September of 2000, he started dating Quincy Martinez, former girlfriend of Jose Fernandez, a dealer who worked for Caraballo. Three months into their relationship, Martinez asked Caraballo to murder Fernandez because he had been abusive toward her. Caraballo answered, “Say no more.”

Caraballo recruited one of his former drug dealers, Aguilar, and Aguilar’s associate, Taylor, to help do the job. Caraballo had previously cut off Aguilar’s supply over an unpaid drug debt, but promised to forgive the debt and resume supplying to him in exchange for the hit. Taylor, who realized that his own sales would increase once Caraballo started supplying Aguilar again, agreed to help and was to receive $5,000 in cash or drugs.

Aguilar, Taylor and Caraballo did the deed and, as promised, Caraballo gave Taylor cocaine and ecstacy pills, forgave Aguilar’s drug debt and arranged for both of them to begin receiving drugs on consignment. As a result of this arrangement, Caraballo was convicted of violating 21 U.S.C. § 848(e)(1)(A), which makes it a crime for “any person engaging in” a specified drug crime to kill or solicit a killing.

On appeal, although he conceded that the evidence supported his conviction for the predicate drug offense, Caraballo argued that the evidence was insufficient to support a finding that he committed the murder while “engaging in” the drug conspiracy.

The circuit affirmed. It first noted that the statutory language - “engaging in” - would seem to require only a temporal connection between the murder and the drug crime. But the Second Circuit, like every other court, has concluded that the government must prove a “substantive, and not merely temporal, connection” between the murder and the drug predicate. This requirement saves the statute from a possible Commerce Clause challenge and furthers the law’s purpose, which is to “target drug-related killings.”

Previously, the court has held that the “engaging in” element is satisfied by proof that there was a drug-related motive for the killing, although the court has made clear that it does not have to be the “primary” motive, or even of equal importance to any non-drug-related motive. But here, the court rejected Caraballo’s argument that these precedents required that the government prove that the killing was, at least in part, in furtherance of the drug crime.

Rather, the court explained, those precedents are simply illustrations of one type of substantive connection; they do not hold that proof of a drug-related motive is the only way to establish it. Nor is there any legitimate policy reason for limiting the scope of the statute to cover only killings that are specifically motivated by the predicate drug crime.

With that as a background, the court had little trouble finding the evidence sufficient here. “[W]e see no reason why [the substantive connection] is not also proved by evidence that the defendant used qualified drug dealings to procure the murder.” Thus, here, while the motive for the killing - Caraballo’s romantic relationship with Martinez - was not drug-related, using the drug conspiracy’s proceeds as a tool to procure the killing was “sufficient to permit a reasonable jury to find that Caraballo killed Fernandez while ‘engaging in’ the charged drug conspiracy.”

In a footnote, however, the court reiterated its view - still dicta, since it has not yet come up - that a drug dealer who killed a spouse in a purely non-drug-related domestic dispute would not satisfy the “engaging in” requirement of § 848(e)(1)(A).

Conspiracy Theories

United States v. Santos, No. 06-0833-cr (2d Cir. September 2, 2008) (McLaughlin, Sack, Livingston, CJJ)

In 2000, Santos was hired by a big Columbian drug dealer to kill two men who had stolen drug proceeds from him. Santos had meetings with an intermediary, Medina, in which Medina answered Santos' questions about the nature of the drug organization and the debt, and detailed the reasons for the hit. Soon after, Santos and an associate shot and killed two men they believed to be the intended targets, but who in fact were not. He was convicted of drug-related murder under 21 U.S.C. § 848(e)(1)(A), and was sentenced to life plus ten.

On appeal, Santos raised, without success, three issues of statutory interpretation relating to his involved in the conspiracy, two of which had a parallel sufficiency claims.

“Engaging In” Drug Trafficking

The statute makes it a crime for a person “engaging in” an offense punishable under 21 U.S.C. § 841(b)(1)(A) to commit murder. Santos argued that this language required the government to prove that he himself was “actively engaged in the distribution of drugs.” The circuit disagreed, based on the plain language of the statute.

The murder statute makes reference to any offense “punishable under” § 841(b)(1)(A). The penalties under this section apply to those who actually distribute drugs, but also those who attempt or conspire to do so. Thus, a defendant need not be actively engaged in drug distribution to be subject to § 848(e)(1)(A). Any person involved in a (b)(1)(A)-level drug conspiracy can be subject to the drug-related murder statute.

Here, there was legally sufficient evidence that Santos was guilty of knowingly participating in the narcotics conspiracy. The government proved that: the charged conspiracy existed and involved more than five kilograms of cocaine; that Santos had knowledge of the conspiracy; that he intentionally joined it, and; that he either knew or could reasonably foresee the drug type and quantity involved.

Medina told Santos about the scope of his boss’ drug dealing and the nature and amount of the debt. Santos agreed to commit the murders and in fact shot and killed two people, albeit the wrong ones. In addition, Santos knew that his acts would further the overall drug conspiracy’s goals, by sending a message that those who stole from the organization would be treated harshly. Finally, there was sufficient evidence Santos had the specific intent to further the conspiracy’s goals - his “affirmative requests to know more about the purpose behind the killings and details of the drug conspiracy,” along with his participation in the killings themselves, were enough.


Does the Statute Cover Cases Where the Only Evidence of the Defendant’s Participation in the Conspiracy is the Killing Itself?

Santos also argued that the statute does not merely cover those working “in furtherance of” the conspiracy, and thus that a drug offense must be committed independent of the killing itself. The problem with these arguments, according to the circuit, is that the drug conspiracy statute does not require an overt act. As long as “the defendant enters into the unlawful agreement before the killing, and the conspiracy is ongoing when the killing occurs,” the drug-offense and killing elements are satisfied by independent acts that overlap in time. Accordingly, although a murder committed in furtherance of the drug conspiracy “cannot itself satisfy the drug-offense element of section 848(e)(1)(A), it can, in appropriate circumstances, persuade the jury that the defendant was a member of the drug conspiracy in furtherance of which the killing was committed.”

The Nexus Requirement

Finally, Santos argued that the government must prove a “direct and substantial nexus” between the killing and the drug conspiracy. The circuit countered that all that is required is a “meaningful connection” between the two. It is enough if the evidence shows that one of the motives for the killing was related to the drug conspiracy. The government does not have to establish that a drug-related motive was the sole purpose, the primary purpose, or even that it was equally important as any other purpose.

Under this standard, there was ample evidence of a connection between the drug conspiracy and the killings. After all, Santos asked why he was being hired, and Medina gave him specific information about the debt owed to the drug conspiracy and the relationship between it and the murders.