United States v. Alvarez

755 F.2d 830 (1985)

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Nature of the Case

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Facts

BATF Special Agents Joseph Benitez, Joseph Tirado, Ariel Rios, and Alex D'Atri, each acting in an undercover capacity, met with Rolando Rios and Ramon Raymond in the parking lot of a convenience store to close a drug transaction. Raymond informed the agents that he had obtained a source for the cocaine, but that delivery would be delayed by about a half-hour. Calls to the cocaine source went unanswered. Roland Rios asked Agents Rios and Tirado to take him to the source's residence. They found no one there, returned to the parking lot. Raymond continued to assure the remaining agents that the cocaine would be delivered shortly. Eduardo Portal arrived at the parking lot and began speaking with Rolando Rios and Raymond. Portal informed Agents Rios, Tirado, [and Benitez that he could make immediate delivery of two kilograms of cocaine. Portal then made a telephone call to Victoriano 'Macho' Concepcion. After the call, Portal told the agents that delivery of the cocaine could be made by noon the next day. The agents departed after agreeing to call Concepcion the next morning to arrange the details. The next day, Agent Rios telephoned Concepcion and arranged to meet with Concepcion and Portal in the parking lot of a restaurant. D'Atri told Concepcion that he wished to purchase three kilograms of cocaine. Concepcion answered that the cocaine was available at a price of $49,000 per kilogram. The four men left the restaurant parking lot and proceeded, in two separate cars, to the Hurricane Motel. The agents advised their surveillance team of their destination. After they arrived at the Motel Concepcion advised the agents that only one of them would be allowed inside the motel to complete the deal. The agents refused to proceed. Concepcion relented and they entered the motel office, while Portal remained outside. Surveillance agents stationed near the motel observed Portal acting as a 'lookout.' Concepcion and the two agents met with Alvarez and Hernandez. Hernandez was the manager of the Motel. and Alvarez and Hernandez shared an apartment that adjoined the motel office. Alvarez made a call and informed the agents that the cocaine would be delivered shortly. The five men waited in the living room of the Alvarez-Hernandez apartment. Alvarez stated in Spanish, 'In this business, you have to be careful. It's a dangerous business. You have to watch out for rip-offs and Federal agents.' Alvarez also stated that he would never go back to prison and that he would rather be dead than go back to prison. D'Atri answered, 'It's always better to be alive than in prison.' After about an hour of waiting, D'Atri announced that he and Agent Rios were leaving. At the same time, Mario Simon drove into the motel parking lot. Hernandez said, 'He's here,' and the men all laughed. Simon entered the living room and said it would take another hour to deliver. The agents agreed to return to the motel in about one hour. The agents returned and found Simon, Alvarez, and Concepcion in the living room where the earlier meeting had taken place. Simon went out to his car and returned with a plastic bag. Concepcion took the bag from Simon and removed a cardboard box from the bag. Concepcion handed the box to D'Atri, who opened the box and found another plastic bag containing what appeared to be about one kilogram of cocaine. D'Atri then asked Agent Rios to go out to their car and get the money. D'Atri took the money out of the paper bag, stood up, and began to count the money. The surveillance and backup agents began to converge on the motel. The bullets started flying. Surveillance and backup found Agent Rios on the couch with a gunshot wound in the face. Agent Rios had also been shot in the finger and the left thigh. Agent D'Atri was lying on the floor in a pool of blood, with four gunshot wounds. Simon, who was covered with blood, was leaning against the wall near a hallway that led to the bedrooms. A carbine rifle was at his feet. Alvarez was running down the hallway toward the bedrooms. Surveillance and backup found Agent Rios on the couch with a gunshot wound in the face. Agent Rios had also been shot in the finger and the left thigh. Agent D'Atri was lying on the floor in a pool of blood, with four gunshot wounds. Simon, who was covered with blood, was leaning against the wall near a hallway that led to the bedrooms. A carbine rifle was at his feet. Alvarez went for a shotgun and was shot. Agent Rios died. Agent D'Atri, Alvarez, and Simon were taken to the hospital and eventually recovered from their wounds. Ds were indicted for Conspiracy to possess with intent to distribute cocaine, Possession with intent to distribute cocaine, or aiding and abetting the same, First-degree murder of Agent Ariel Rios, or aiding and abetting the same, Assault on Agent Alex D'Atri by means of a deadly and dangerous weapon, or aiding and abetting the same, and Use of a firearm to commit a felony. The jury found Ds guilty as charged, except that Portal, Hernandez, and Concepcion were found guilty of second-degree murder under Count III. Ds appealed. In part, Ds claim that BATF agents are not protected under 18 U.S.C. § 1114.