United States v. Rosado-Fernandez

Facts

John Lawler, an undercover Drug Enforcement Agency (DEA) agent, went to Jose Eligio Borges (Defendant) with the intent to purchase three kilos of cocaine. After the two discussed the price and delivery, Borges made a telephone call in Spanish and instructed Lawler to return later that evening. Thereafter, Lawler met Borges and his “supplier,” Oscar Rosado-Fernandez (Defendant), at a restaurant. Lawler, Rosado and Borges discussed the purchase and delivery of the cocaine. No actual delivery took place that evening. The next day Lawler and Rosado had a series of recorded telephone conversations in which Rosado quoted Lawler a price of $46,000 per kilo. Subsequently, Lawler and Rosado met at the home Nelson Garcia (Defendant). While there, Lawler was presented with the cocaine. As federal officers moved into to make arrests, Zayas (Defendant) took the cocaine and dumped it into the swimming pool. Lawler dove into the pool and recovered samples of the water and cocaine. Defendants were charged with, and convicted of, conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. § 846 and possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Rosado was also convicted of using a communications facility during the commission of a felony in violation of 21 U.S.C. §§ 841(a)(1), 846, and 843(b). Borges and Rosado appealed.