To be successful at crime often requires good sense and even better luck.
Puerto Rico resident Jose Luis Bobadilla-Pagan (“Bobadilla”) is undeniable evidence of this point. The First Circuit Court of Appeals in a March 28, 2014 decision upholding his convictions for possession of a control substance and possession of a firearm in furtherance of a drug trafficking offense opened with this observation: “When ill luck began for [Bobadilla], it came not in sprinkles, but in showers.”
That observation was being kind. Bobadilla was married to a woman whose brother was a major drug dealer in Barrio Cacao, Carolina, Puerto Rico. He lived in a second floor apartment the couple shared, which was above his brother-in-law’s home. The U.S. Drug Enforcement Agency had Bobadilla’s brother in law, Hector Patron, in their cross-hairs. The agency staged a raid on Patron’s apartment just before dawn on September 27, 2011. The commotion outside the house moments before the raid awakened Bobadilla and his wife. Rather than just staying in bed, Bobadilla rushed outside to investigate the “loud noises.”
After Bobadilla made his way outside, he was confronted by the agents. The agents asked him who he was and how he knew Patron. As soon as he explained the connection, the agents placed Bobadilla in their cross-hairs along with his brother-in-law. As the First Circuit aptly noted, “Bobadilla probably wishes he had stayed in bed,” particularly since Patron was not even at home at the time of the raid.
It was too late for that retrospection. The police were not going away empty-handed. When Bobadilla could not produce any identification, telling the agents his driver’s license was in a van parked down the street, one of the agents said he would accompany him to retrieve the identification and bring it back to the house.
The agents instinctively surmised that Bobadilla had parked his van away from the house to hide or disassociate himself from any contraband inside it. The agents were not buying Bobadilla’s explanation that he parked the van down the street because the “emergency brake” did not work.
The agents sent for a canine unit whose dog “alerted” almost immediately to narcotics in the van. Bobadilla not only gave the agents consent to search the van, he also “admitted there was marijuana inside” of it. He personally opened the van and pulled a bag from beneath the driver’s seat which contained just under a “half a pound” of marijuana. At that point he probably should have just kept his mouth shut and asked for a lawyer. Instead he told the agents he “kept an illegal firearm in the van and proceeded to fish out a partially loaded nine-millimeter Beretta from a fanny pack in the middle console.”
The gun was just a couple feet from where the marijuana had been stashed. He told the agents the marijuana and weapon were for his personal use and protection.
The evidence was more than enough for the Government to obtain the two-count indictment against Bobadilla. His attorney made an effort to have the marijuana and weapon suppressed before trial on the ground that the “consent to search” had been coerced. The trial judge wasted no time denying the motion.
Bobadilla’s trial began on December 14, 2011, less than 90 days after his arrest, and lasted two days. The Government quickly refuted Bobadilla’s “personal use” defense by calling DEA Special Agent Christopher Diaz, a narcotics expert, who testified that:
“[He] was part of the team that seized the marijuana from Bobadilla’s minivan. He observed that, when it was confiscated, the marijuana was wet, green, soft, and contained red hairs, stems and seeds. Based on its condition, he opined that the marijuana was not ready to be used that day; rather, it needed to be cured for several weeks in a cool environment and the stems and seeds needed to be removed before it could be smoked. He continued to say that – given the amount of marijuana, its rough condition, and the fact that it was stored in a large Ziplock bag in a hot van – he believed the marijuana was intended for distribution, not for personal use. Furthermore, when asked about the role of weapons in drug trafficking, Agent Diaz said that drug traffickers use firearms to protect themselves and their merchandise and sometimes to kill people.”
Bobadilla countered this expert testimony with his own testimony from the witness stand. He told the jury that he smoked between 10 and 12 joints each day with each joint containing 1 to 2 grams of marijuana. He explained that after he removed the stems and seeds, the 7.5 grams found in his minivan would “yield only 5 to 5.5 ounces of usable drug.” That would give him enough “to make about 50 joints”—a week or two supply. He explained that “buying his marijuana in bulk was more economical, more convenient, and reduced the risk of getting caught.”
The First Circuit challenged Bobadilla’s calculations. The court said 5 ounces represented 140 grams, and if he used 1 to 2 grams to make a joint, he possessed “enough marijuana to make 70 to 140 joints.” Besides the problem with his math calculations, the appeals court pointed out that Bobadilla’s “admitted” daily intake of marijuana “did not jibe with what he had told the pre-trial services officer the day he was arrested.”
He told the pre-trial officer he smoked only a “single joint per day.” He explained this discrepancy by saying “he was nervous and did not want to get in trouble” when he lied to the services officer about his marijuana use.
AS for the gun, Bobadilla told the jury the weapon belonged to a friend who was traveling and he decided to keep the gun in his minivan instead of his house “because he did not want his young daughter to find it.”
The jury was not impressed. It found Bobadilla guilty on both counts. But apparently his story resonated with the trial judge. On March 16, 2012, the judge sentenced Bobadilla, who had no prior convictions, to zero months on the controlled substance count and the mandatory minimum five years on the firearms count. Bobadilla timely appealed. He argued on appeal that the Government had not presented sufficient evidence that he intended to distribute the marijuana or that the gun was used in furtherance of a drug trafficking offense. Although the First Circuit upheld the jury verdicts, the court was clearly troubled by the Government’s handling of the case. The appeals court concluded its opinion this way:
“Before we wrap up, we pause to make explicit our ambivalence towards the jury’s findings. While it is clear that Bobadilla guiltily possessed a small quantity of marijuana and an illegal firearm, whether he intended to distribute that marijuana, as well as whether he possessed the firearm ‘in furtherance of’ a drug trafficking crime, are harder questions. The jury answered ‘yes’ to both.
Another jury may have concluded otherwise. Obviously too, another prosecutor could have opted to indict Bobadilla on lesser charges, i.e., simple possession of marijuana and an unlicensed firearm. This prosecutor chose not to, as was within her discretion. And at this stage, we are duty-bound to enforce the jury’s amply supported verdict. Consequently, today, like September 27, 2011, is not Bobadilla’s lucky day.”
We agree with the First Circuit’s implication. This was a classic case of “Governmental overreach.” Justice would have been better served with the indictment of lesser charges that would not have resulted in a mandatory minimum penalty. However, apparently trying to squeeze Bobadilla to cooperate against his brother-in-law, law enforcement decided to play hard ball. The taxpayers will incur the costs of the governmental abuse of discretion in this Bobadilla case by spending hundreds of thousands of dollars to confine this unfortunate soul.