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Date: 07-15-2021
Case Style:
UNITED STATES v. IDALIA MALDONADO-PEÑA
Case Number: 17-1432
Judge: Ojetta Rogeriee Thompson
Court: United States Court of Appeals
Plaintiff's Attorney: Rafael F. Castro Lang for appellant Joel Rivera-Alejandro.
Daniel N. Lerman, United States Department of Justice,
Criminal Division, Appellate Section, with whom W. Stephen
Muldrow, United States Attorney, Mariana Bauza, Assistant United States Attorney, Brian A. Benczkowski, Assistant Attorney General,
and John P. Cronan, Principal Deputy Assistant Attorney General
Defendant's Attorney:
Description:
Boston, MA - Criminal defense lawyer represented defendants with conspiracy to distribute heroin, cocaine, cocaine base (aka crack), marijuana, and prescription pill charges.
These appeals arise from the drug conspiracy and
distribution convictions of five members of a vast drug trafficking
organization. Operating primarily out of the Los Claveles Housing
Project ("Los Claveles") and the general Villa Margarita Ward area
within the Municipality of Trujillo Alto, Puerto Rico, fifty-five
individuals were indicted on charges of conspiracy to distribute
heroin, cocaine, cocaine base (aka crack), marijuana, and
prescription pills between May 2006 and May 2009. The indictment
tagged each of the defendants before us with at least one role in
the conspiracy; hierarchical designations ranging from leader,
supervisor, drug owner, enforcer, runner, seller, or facilitator.
Subsets of the fifty-five were charged with "aiding and abetting
in the distribution of" one or more of heroin, cocaine base,
cocaine, or marijuana. Some were also charged with conspiracy "to
possess firearms in furtherance of drug trafficking crimes."
By the time a jury trial started in the summer of 2014
-- more than five years after the 2009 indictment (which certainly
raises our eyebrows) -- most of the defendants had pled guilty.
Four of them testified as cooperating witnesses ("CWs") for the
government. At the end of the trial in December 2015 only eight
defendants remained. The jury acquitted one defendant of all - 5 -
charges and convicted the other seven of some or all of the charges
against them.
Five of these defendants -- Joel Rivera-Alejandro,
Carlos Rivera-Alejandro, Juan Rivera-George, Suanette RamosGonzalez, and Idalia Maldonado-Peña -- have appealed their
convictions (and some their sentences) and we briefly introduce
them to you.
• Joel1 was charged as one of the two leaders of the conspiracy
as well as an enforcer. He was convicted of two conspiracy
charges and all substantive drug charges, and sentenced to
360 months' imprisonment, concurrent.
• Carlos (Joel's brother) was identified as a supervisor, drug
owner, seller, and enforcer. He was convicted on all counts
against him and sentenced to 324 months' imprisonment,
concurrent.
• Juan was tagged as a runner for the conspiracy, convicted on
all counts, and sentenced to 235 months' imprisonment,
concurrent.
• Suanette was charged for her roles as a seller and a
facilitator and convicted of the drug conspiracy charge as
well as the substantive marijuana distribution charge.
Suanette was sentenced to 24 months' imprisonment,
concurrent.
• Idalia (Carlos's wife) was identified in the indictment as a
seller and convicted on the cocaine base distribution charge.
Idalia was sentenced to 60 months' imprisonment.
The five defendants in these consolidated appeals raise
a variety of challenges. In our review of their claims, we will
1 We have used the defendants' first names throughout this
opinion because two of them (brothers) share the same last name
and a third has a similar surname. We intend no disrespect to the
defendants by using their first names and we only use them to make
it clear as to whom we are referring as we work our way through
their arguments before us.- 6 -
start by addressing the speedy trial contentions before turning to
other purported trial errors. We'll provide the background
information necessary to place the issues and arguments in context
as we proceed.2 For those readers for whom what follows will be
tl;dr,3 the short version is that none of the issues raised by
these five defendants translate into reversible error warranting
vacatur of their convictions or sentences. Thus, we affirm the
whole kit and caboodle.
2 A quick aside about our presentation of the testimony and
evidence at trial as we trudge through the issues. Only Juan and
Suanette challenge the sufficiency of the evidence to support their
convictions, and we don't address those issues until after we have
worked through others, including challenges to several evidentiary
decisions made during trial. Our presentation of the facts will
be in a neutral, "balanced fashion," except where otherwise
specified, especially because "the precise manner in which we
chronicle the backstory has no impact on our decision." United
States v. Zimny, 846 F.3d 458, 460 n.2 (1st Cir. 2017) (citing
United States v. Vázquez–Larrauri, 778 F.3d 276, 280 (1st Cir.
2015), and United States v. Rodríguez–Soler, 773 F.3d 289, 290
(1st Cir. 2014)). When we reach Juan's and Suanette's sufficiencyof-the-evidence arguments, we'll recite "our summary of the facts
in the light most favorable to the jury's verdict." United States
v. Chan, 981 F.3d 39, 45 (1st Cir. 2020) (citing United States v.
Charriez-Rolón, 923 F.3d 45, 47 (1st Cir. 2019)).
3 If "tl;dr" isn't familiar, it stands for "Too Long; Didn't
Read" which, as defined by Urban Dictionary, is "used by someone
who wrote a large post[]/article/whatever to show a brief summary
of their post as it might be too long."
https://www.urbandictionary.com/define.php?term=tl%3Bdr, last
visited June 28, 2021.- 7 -
SPEEDY TRIAL
The defendants waited five years for trial
(Joel & Carlos)
"[T]he right to a speedy and public trial" is guaranteed
to criminal defendants via the Sixth Amendment. United States v.
Lara, 970 F.3d 68, 80 (1st Cir. 2020) (quoting U.S. Const. amend.
VI). Therefore, criminal charges must be dismissed when the
government violates this right. Id. (quoting United States v.
Dowdell, 595 F.3d 50, 60 (1st Cir. 2010)). Joel and Carlos claim
that their constitutional right to a speedy trial was violated
because, after they were arrested and arraigned in mid-2009, the
trial (which took 128 days to complete) didn't start until five
years later.4
Below, the defendants voiced speedy trial complaints
during the pretrial period. In April 2013, Joel filed a motion to
dismiss his indictment alleging his constitutional right to a
speedy trial had been violated. Carlos joined the motion. The
magistrate judge to whom the motion was referred issued a Report
and Recommendation ("R&R") in July 2013. The magistrate judge
found the trial date had either been vacated or rescheduled eight
times and attributed much of the delay to change of plea motions
4 There was some mention of the Speedy Trial Act during the
trial phase and Juan provides one paragraph summarizing the statute
in his brief but, on appeal, the defendants' arguments focus
exclusively on the constitutional rather than the statutory right
to a speedy trial.- 8 -
filed by forty of Joel's codefendants. He also cited the numerous
pretrial motions Joel filed requesting new counsel which resulted
in continuation motions so that each new counsel (three in all)
could get up to speed. The magistrate judge also determined Joel
had not shown prejudice from the delay and recommended the district
court deny the motion to dismiss.
Joel objected to the R&R (and Carlos adopted that
objection), focusing on the failure of the R&R to discuss the
numerous pretrial motions the government had filed up to that point
which had contributed to the delay of the trial's start date.
According to Joel, in the four years between his indictment and
his speedy trial motion to dismiss, he had filed 4 continuation
motions whereas the government had filed 22 motions to either
continue the trial date or extend the time to respond to a pending
motion. Joel further argued the length of the delay was
presumptively prejudicial as per our case law and the magistrate
judge should not have required him to show the ways in which he'd
been prejudiced. Responding to the objection, the trial judge
entered a one-paragraph order agreeing with the R&R and concluding
there had been no speedy trial violation.
On appeal, Joel and Carlos reprise their complaints.5
We have consistently reviewed a district court's resolution of a
5 Below, Juan and Suanette joined Joel's motion to dismiss
for violation of their constitutional speedy trial rights, but - 9 -
defendant's motion to dismiss his indictment on the basis of a
Sixth Amendment violation of his right to a speedy trial for abuse
of discretion.6 Lara, 970 F.3d at 80. When we evaluate such a
challenge, we consider, primarily, four factors as set forth in
Barker v. Wingo, 407 U.S. 514, 530-32 (1972): "(1) 'the length of
delay'; (2) 'the reason assigned by the government for the delay';
(3) 'the defendant's responsibility to assert his right'; and (4)
'prejudice to the defendant, particularly to limit the possibility
that the defense will be impaired.'" Lara, 970 F.3d at 80 (quoting
United States v. Handa, 892 F.3d 95, 101 (1st Cir. 2018)).
However, "none of the four factors" is "either a necessary or
sufficient condition to the finding of a deprivation of the right
of speedy trial. Rather, they are related factors and must be
considered together with such other circumstances as may be
relevant." Barker, 407 U.S. at 533. Further, our case law tells
neither filed an objection to the R&R nor indicated he or she
joined in Joel's objection. The R&R explicitly put them on notice
that the failure to object within 14 days of the R&R would waive
their right to appellate review. Therefore, despite Juan's cursory
arguments here about this issue and Suanette's attempt to join the
arguments on appeal, they have waived this issue. See United
States v. Díaz-Rosado, 857 F.3d 89, 94 (1st Cir. 2017).
6 As we have mentioned in other opinions addressing a speedy
trial violation argument, there is some debate about whether the
abuse of discretion standard is the appropriate standard of review
for this issue, but for various reasons it is the standard we have
consistently applied. See Lara, 970 F.3d at 80; United States v.
Irizarry-Colón, 848 F.3d 61, 68 (1st Cir. 2017). Here, the parties
agree our review is governed by this standard, so we proceed with
it once again.- 10 -
us to presume delays of one year or more are prejudicial and to
proceed with an analysis that "balance[s] all four of the factors
to determine whether there has been a violation, as [no one factor]
carries 'any talismanic power.'" Lara, 970 F.3d at 81 (quoting
Dowdell, 595 F.3d at 60).7 Additionally, the Supreme Court has
been clear that the inquiry into the four factors is completely
dependent on the circumstances of each individual case. See
Barker, 407 U.S. at 530-31. Joel and Carlos argue all four Barker
factors weigh in their favor. We turn now to examine them.
Everyone agrees that the first factor -- length of delay
-- weighs in Joel's and Carlos's favor. There is no doubt that
the time between the defendants' May 2009 indictments and the July
28, 2014 trial start date was more than one year.8
The second factor -- reasons for the delay -- is the
"focal inquiry." Lara, 970 F.3d at 82 (quoting United States v.
Souza, 749 F.3d 74, 82 (1st Cir. 2014)). Joel, joined by Carlos,
and the government are quick to point fingers at each other. Both
7 A quick aside: Joel also tries to bring in the length of
time that passed between the jury's verdict and his sentencing
hearing. However, the Supreme Court has clearly stated the Sixth
Amendment's guarantee to a speedy trial does not "apply to the
sentencing phase of a criminal prosecution[.]" Betterman v.
Montana, 136 S. Ct. 1609, 1612 (2016) ("[O]nce a defendant has
been found guilty at trial or has pleaded guilty to criminal
charges[,]" the guarantee doesn't apply).
8 "The length of pretrial delay is calculated from either
arrest or indictment, whichever occurs first." United States v.
Casas, 425 F.3d 23, 33 (1st Cir. 2005). - 11 -
defendants argue the root of the delay was the government's
decision to indict and prosecute fifty-five defendants at the same
time, exacerbated by the government's many motions to continue the
trial date. According to Joel and Carlos, the delay was made more
egregious by the trial judge's decision to wait to begin the trial
until all the other defendants seeking to change their plea had
done so, as well as the length of time she took to resolve pretrial
motions such as Joel's motions to suppress. In particular, Carlos
points out that defendants shouldn't have to choose between filing
pretrial motions and getting to trial faster. The government
argues the defendants principally caused the delays because of
their numerous pretrial motions -- specifically, that the four
defendants who bring speedy-trial claims (Joel, Carlos, Suanette,
and Juan) filed ninety-nine pretrial motions -- and further say
Joel's repeated change of counsel contributed to the delay.
When it comes to the reasons for delays, "different
weights should be assigned to [the] different reasons" the
government points to as justification for the delays. Barker, 407
U.S. at 531. In Lara, we held this factor weighed against the
defendants there because their pretrial motions and those of other
codefendants were the primary reason for the delays, not government
foot-dragging. 970 F.3d at 82. In United States v. Casas, we
noted the government had a legitimate reason for the five-and-ahalf-year delay between the return of the indictment and the - 12 -
arraignment: the government's inability to find the defendant.
356 F.3d 104, 112-13 (1st Cir. 2004). Here, unlike these prior
cases, the five-year wait for trial was clearly caused by the
numerous motions of all stripes filed by both the government and
the defendants, including motions to suppress, discovery-related
motions, change of plea motions, motions to continue the trial
date, etc. Also contributing to the delay was the court's need on
several occasions to continue the proceedings to attend to changeof-plea hearings from the other forty-seven indicted conspiracy
members. Accordingly, it is difficult to draw a line and attribute
trial delay to either the government or the defendants because
they both substantially contributed to it.
Joel pushes back and insists that this mega-prosecution
is the root cause of the impermissible, inordinate delay that
transpired here and this court, he urges, should not countenance
it. However, in considering a speedy trial challenge involving
the prosecution of ten drug trafficking conspirators, this court
deemed the joint proceeding an "efficient administration of
justice," even when the time from arrest to trial took over three
years. United States v. Casas, 425 F.3d 23, 33, 34 (1st Cir.
2005). Nonetheless, Joel argues the joint prosecution of fifty
persons here certainly did not lead to efficiency as he waited
more than five years to reach the first day of trial. As reasonably
viewed, the efficient administration of justice is at least - 13 -
questionable in this case and the delay causes us much concern.
But given our conclusion that both sides contributed to the delay,
we have no reason to reconsider Casas' efficiency rationale. So
on we go.
Moving to the third factor -- when and how Joel and
Carlos asserted their rights to a speedy trial -- we note they did
file an unsuccessful motion to dismiss on this basis, albeit almost
four years post-arraignment. Subsequently, Joel filed two notices
asserting his right to a speedy trial -- one in December 2013 and
another in May 2014 -- asking the district court to simply note
that he was asserting his right but not requesting a responsive
pleading from the government. In May 2015, after trial had been
underway for ten months, Carlos claimed a speedy trial violation
because he had already been detained for 72 months. This assertion
came after codefendant Suanette sought an eight-week trial break
due to pregnancy-related complications. In our view, in
considering Joel's and Carlos's efforts to assert their speedy
trial rights, while we cannot say they completely sat on their
rights, their efforts were, at best, rather anemic. Barker, 407
U.S. at 531-32 ("Whether and how a defendant asserts his right
. . . [and] [t]he strength of his efforts" reflects the degree of
prejudice to defendants.).
With respect to the fourth factor -- prejudice -- we
have previously "recognized three types of prejudice: 'oppressive - 14 -
pretrial incarceration, anxiety and concern of the accused, and
the possibility that the accused's defense will be impaired by
dimming memories and loss of exculpatory evidence.'" Lara, 970
F.3d at 82-83 (brackets omitted) (quoting Doggett v. United States,
505 U.S. 647, 654 (1992)). Out of the gate, the government says
that neither defendant explains how his defense was impaired --
i.e., prejudiced -- by the length of the delay. Nevertheless,
Carlos argues this court has never confronted a delay of this
length and given the presumption of prejudice beyond a one-year
delay, our analysis should begin and end there.
Beyond the extraordinary delay, Joel claims prejudice,
first citing the heightened and prolonged anxiety he experienced
because he thought the government was retaliating against him for
being acquitted in a Commonwealth death-penalty homicide trial.
Second, that the "oppressive conditions of confinement while [he]
was incarcerated" likewise need to factor into the prejudice
analysis.9
Joel points to United States v. Black, 918 F.3d 243,
264-65 (2d Cir. 2019), in support of his claim of prejudice. While
Black has the result Joel is looking for -- a dismissal due to
9 As the government points out, Joel did not identify how the
conditions at the prison were inhumane for him, in particular
because he didn't articulate any reasons specific to him, pointing
instead to a newspaper article about the general conditions at the
prison.- 15 -
speedy trial infractions of constitutional proportions -- the
reason for the sixty-eight-month delay between indictment and
trial in that case was attributed almost entirely to the
government. For years it was unable to settle on the charges and
it repeatedly flip-flopped on whether it was going to pursue the
death penalty. Id. at 248 (government ultimately filed a
superseding indictment with new charges almost three years after
the indictment was filed, then announced it would not seek the
death penalty). The defendants in Black also "repeatedly requested
a speedy trial." Id. at 249. The anxiety to the defendants in
Black caused by the uncertainty over whether they would face the
death penalty in the case for which they stood trial was of a
substantively different nature than the anxiety caused to Joel and
his codefendants from their long wait to be tried for drug
trafficking conspiracy.
While we clearly have grave concerns about the
government's approach in this case which resulted in a protracted
delay to verdict, we conclude the trial judge did not abuse her
discretion in denying Joel's motion, joined by Carlos, to dismiss
the indictment for violation of the Sixth Amendment's speedy trial
guarantee. Balancing all four Barker factors, the presumed
prejudice from the length of the delay is counterbalanced by Joel's
and Carlos's contributions to the pretrial delays as well as the
number of years they waited before asserting their speedy trial - 16 -
rights. See Lara, 970 F.3d at 80. As such, Joel and Carlos have
not shown how their ability to mount an adequate defense was
hampered by the delay or how the trial judge abused her discretion
by failing to so find.
That said, delaying the trial for those defendants who
chose to exercise their constitutional right to have the government
prove their guilt beyond a reasonable doubt while most of the rest
of the codefendants changed their pleas certainly raises genuine
concerns about the impact of the government's decision to charge
and monolithically process "mega-cases" on defendants' rights to
a speedy trial. This five-year gap between the indictment and the
start of trial does not sit well with us. Some of the defendants
spent this entire pretrial period detained while still presumed
innocent. When speedy trial rights claims are raised, drawing a
line and knowing when it has been crossed is circumstancedependent, but the defendants' five-year wait for trial was as
close as it comes to infringement. Despite their individual
contributions to some of the delay, each defendant was forced to
wait while forty-seven codefendants changed their pleas, changed
their counsel, new counsel got up to speed on the case, and the
judge processed and decided motions unrelated to them. Even though
the defendants made no showing of how their defenses were actually
impacted by the delay, at the very least witnesses' memories would
have dulled and faded over that time. - 17 -
There is no perfect solution to efficiently prosecuting
alleged large drug distribution conspiracy cases, but the
government needs to better balance the efficiencies it enjoys by
prosecuting these so-called "mega cases" with the defendants'
rights to a speedy trial by considering ways to break those
indicted into groups which can reach the first day of trial (when
the defendants choose to exercise this right) sooner. Additionally
and importantly, we note that the government's speedy trial
argument as presented in its briefing makes clear that the
government's reading of Casas is simply incorrect. We did not
give our blessing there to multidefendant indictments regardless
of the consequences, nor did we bless years of delay caused by
allowing the time for codefendants' change of pleas to make it
easier for the government to use codefendant testimony. When the
government indicts, it should have enough evidence to prove the
case as to each and every defendant without delays such as occurred
here. When the government brings such large multidefendant
criminal prosecutions, it assumes a considerable risk of violating
the constitutional rights of defendants. It also risks losing
convictions on appeal because of its choices, which are not
necessary choices, to proceed with a sizable number of defendants
(and/or overcharging).
And one final speedy trial coda before moving on: it
would be wise for the district court to better strategize how to - 18 -
move such multi-party cases through the judicial system given the
constitutional (and statutory) implications attendant thereto.
When the Department of Justice presents the district court with
these very difficult-to-manage scenarios, the court has management
tools available to it to see that the cases are handled more
expeditiously. Such tools are known to the district courts and it
may well be there can be agreements as to procedures likely to
secure more expeditious handling. Given these clear words of
caution, we would not expect to see such unprecedented procedural
prosecutions in the future.
The trial lasted 18 months
(Carlos)
After the trial started in July 2014, approximately 128
trial days were spread out over eighteen months, with the jury
rendering its verdict in January 2016. The trial judge completed
sentencing in May 2018. Carlos contends this "excessive trial
length" was a violation of his Fifth Amendment right to due
process. He argues he was prejudiced by the length of the trial,
once it finally began, because during deliberations the jurors had
to recall and process testimony they had heard over the course of
the prior year-and-a-half. Our search of the record suggests this - 19 -
is the first time Carlos is asserting such a due process
infringement and Carlos directs us to nothing to the contrary.10
Because Carlos pivots to a due process argument on
appeal, plain-error review applies -- "a standard that requires
him to prove four things: (1) an error, (2) that is clear or
obvious, (3) which affects his substantial rights . . . , and which
(4) seriously impugns the fairness, integrity, or public
reputation of the proceeding." United States v. Correa-Osorio,
784 F.3d 11, 17–18 (1st Cir. 2015).
Carlos presents a novel Fifth Amendment argument asking
us to adopt and apply a modified four-factor speedy trial
analytical framework to his due process claim. But he points to
10 The government generously opines Carlos asserted this claim
when he replied to codefendant Suanette's motion in the summer of
2015 requesting the eight-week trial recess. But a review of
Carlos's response reveals he presented no such objection. Instead,
Carlos only argued the court should reconsider his detention status
and allow him bond during the break because the length of time he
had been detained since his arraignment (72 months) violated his
speedy trial rights. The trial judge denied the bond request. It
is clear the judge understood Carlos to be making a speedy trial
motion because she responded to it by distributing a table
reflecting the calendar days since the trial began when a full day
of trial had not occurred and the reasons why trial had not been
held -- or held for only half a day -- on any given day. The
reasons ranged from illness on the part of a juror, an attorney,
and a defendant, to scheduling conflicts across the board. The
trial judge noted that none of the defendants had objected to the
trial interruptions as they occurred and reiterated her speedy
trial conclusion from the earlier motion -- "[d]efendants cannot
trigger excludable delays during the pretrial stage [referring to
the pretrial motions] and simultaneously log them as speedy trial
violations."- 20 -
no case -- binding or otherwise -- in which we or the Supreme Court
have done so. Consequently, there cannot be any clear or obvious
legal error on the part of the trial judge.11 See United States
v. McCullock, 991 F.3d 313, 322 (1st Cir. 2021) (an error is clear
or obvious when a trial judge disregards controlling precedent).
Therefore, Carlos's argument on this point stumbles at the
threshold.
MOTIONS TO SUPPRESS
In this section, we examine Juan's and Joel's arguments
that the trial judge erred in denying two motions to suppress.
The notebook from Juan's apartment
(Juan)
Police found a notebook full of names and phone numbers
in Juan's apartment during a warrantless search. According to
Juan, this notebook, admitted into evidence at trial, should have
been suppressed as obtained in violation of his Fourth Amendment
rights because the Drug Enforcement Administration ("DEA") agent
who seized the notebook did so when Juan was not home and without
obtaining voluntary consent from his wife prior to the search. As
11 Moreover, it is unclear how Carlos considers the trial
judge to have erred because, on appeal, he challenges neither the
denial of his request for bond nor the judge's response to his
speedy trial violation assertion based solely on the length of the
trial. To be sure, the trial in this case was protracted and, as
Carlos points out, there are many disadvantages to a criminal trial
spreading over such a long period. However, as the trial judge
pointed out, there were myriad reasons why the trial took so long. - 21 -
we explain below, Juan waived this argument, so we decline to reach
the merits.
After Juan filed a motion to suppress the notebook, a
magistrate judge listened to testimony from one of the DEA agents
and Juan's wife, and he ultimately recommended the district court
deny the motion after concluding the government had adequately
shown Juan's wife did voluntarily consent to the search. The
magistrate judge's R&R had the usual warning: the parties had 14
days to file any objections to it and failure to object within
that timeframe waived the right to appeal the order. Juan filed
no objection and the trial judge approved and adopted the R&R.
Our procedural rules and case law are crystal clear that
when, as here, a party fails to file an objection to an R&R, the
party has waived any review of the district court's decision.
United States v. Díaz-Rosado, 857 F.3d 89, 94 (1st Cir. 2017);
Fed. R. Crim. P. 59(a); see also Garayalde-Rijos v. Mun. of
Carolina, 747 F.3d 15, 21-22 (1st Cir. 2014) (noting the party had
notice that the failure to object would result in waiver of further
review of the decision); Davet v. Maccarone, 973 F.2d 22, 31 (1st
Cir. 1992). We move on to the preserved suppression issue Joel
raises. - 22 -
The gun from Joel's father's car
(Joel)
Before trial, Joel sought suppression of a gun seized
from the car he was driving when a law enforcement agent pulled
him over outside his home. On appeal, Joel challenges the trial
judge's denial of that motion.
"[W]hen we review a challenge to a district court's
denial of a motion to suppress, we are to 'view the facts in the
light most favorable to the district court's ruling' on the
motion." United States v. Rodríguez-Pacheco, 948 F.3d 1, 3 (1st
Cir. 2020) (quoting United States v. Camacho, 661 F.3d 718, 723
(1st Cir. 2011)). "[W]e recite the key facts as found by the
district court, consistent with the record support." Id.
(quoting United States v. Young, 835 F.3d 13, 15 (1st Cir. 2016)).
On February 26, 2009, agents from an investigative group
called the Carolina Strike Force ("CSF") set up surveillance of
the Los Claveles Public Housing Project in Trujillo Alto after
receiving a tip from a reliable informant that the leaders of the
drug trafficking organization under investigation met there on
Thursdays to pick up money from the previous week's drug sales.
The agents watched Joel drive into the housing complex in his
father's car and leave in it, heading in the direction of his house
in Villa Margarita. Officer Agustin Ortiz saw the car's windows
were likely tinted darker than allowed by Puerto Rico law, so he - 23 -
used his siren to initiate a stop. Instead of pulling over
immediately, Joel indicated with his hand that Officer Ortiz should
follow him. He eventually stopped at the gate in front of his
driveway. Several family members exited the house and walked
toward the car. Officer Evette Berrios Torres saw Joel trying to
move a black object on the floor of the driver's seat with his
foot while his mother was leaning against the car and trying to
pick something up with her hand. Recognizing the object was a
black pistol (which turned out to be a Glock model 26, .9 mm
pistol) Officer Berrios seized it. Joel was arrested.
In a motion to suppress the gun, Joel detailed the same
basic sequence of events as recited above and argued multiple
reasons why the warrantless search of the vehicle violated his
Fourth Amendment rights: law enforcement had no reasonable
suspicion there was contraband in the car, the traffic stop for
the allegedly illegal tint on the windows was clearly a pretext to
search the vehicle, and he was forcibly removed from the vehicle
after law enforcement opened the car door and saw the gun in plain
view. Joel attached three documents to his motion: the warrant
application and supporting affidavit for the car search (obtained
after Joel was pulled over and arrested), a written declaration by
Joel's father (who was at the house when Joel stopped the car and
saw the series of events unfold), and a photo of the driver's area
of the car (taken a few steps back from the open driver's side- 24 -
door). Joel did not request an evidentiary hearing. Joel's
father's recitation of what occurred during the traffic stop did
not conflict with law enforcement's rendition: he briefly stated
that, after Joel stopped his car at the front gate of their home,
"law enforcement personnel surround[ed] the vehicle and
instruct[ed] Joel to unlock the car door." "After Joel unlocked
the door, law enforcement personnel opened the car door and removed
him from the vehicle." Joel was not given a traffic ticket for
the tinted windows on this day and his father was not given such
a ticket for the vehicle at any other time.
The government opposed Joel's motion to suppress,
arguing, first, the dark tint on the windows gave Officer Ortiz
probable cause to stop the car and second, no Fourth Amendment
violation had occurred because the gun had been seen in plain view
and thus properly seized without searching the car. The trial
judge denied the motion to suppress in a written order, relying on
the documents Joel filed in support of his motion.12
During the trial, Puerto Rico Officer Ortiz (assigned to
the Bureau of Alcohol, Tobacco, Firearms ("ATF") as an
investigating agent but part of the CSF in 2008 and 2009) provided
12 The judge found there was no evidence the law enforcement
agents had exercised physical force and that Joel had conceded the
gun was in plain view when the police opened the unlocked door.
Regardless, the judge concluded the police had probable cause to
search based on Joel's behavior from the first wail of the siren
through to the seizure of the gun.- 25 -
more detail about how the gun was found in Joel's father's car.13
Officer Ortiz had been assigned to be in a police cruiser on the
day in question, ready to act if needed. In addition to describing
the sequence of events as laid out above, he stated he pulled the
car over both because the car had darkly tinted windows and because
he needed to confirm Joel was in the car. He testified that while
he did not test the tint level that day, he is trained in how to
test the tint on the windows and perceived a difference between
the tints on the front versus the back windows, with the front
window tinted impermissibly darker.
He testified that when Joel stopped the car in front of
the gate at the house, Joel opened the driver's side door and
placed his left leg outside of the car, while honking the horn and
calling out for someone to open the gate. Officer Ortiz told Joel
to turn off the car, but another officer opened the front passenger
door and turned off the ignition. Officer Ortiz said Joel's mother
came out of the house saying "leave my son alone," then indicated
she was going to faint, all the while leaning against the car and
reaching inside. Agent Berrios walked up to Officer Ortiz to help
with Joel's mother and Agent Berrios saw the firearm on the floor
13 We may consider this testimonial evidence from the trial
because Joel renewed his suppression motion. See United States v.
Howard, 687 F.3d 13, 17 (1st Cir. 2012); United States v. de JesusRios, 990 F.2d 672, 675 n.2 (1st Cir. 1993).- 26 -
of the car, near Joel's right foot. According to Officer Ortiz,
"tactical operations [are] a heated, . . . hostile environment."
The situation was so heated, according to Officer Ortiz, that he
couldn't give the ticket for the dark tint on the windows and then
he forgot to issue the ticket once everyone was at the police
station. Following Officer Ortiz's testimony, Joel renewed his
motion to suppress the gun. Again, it was denied.
We have long-established standards for reviewing a
district court's denial of a motion to suppress: we consider the
motion anew, giving full deference to the district court's
findings of fact (disturbing them only if the record reveals the
findings were clearly wrong), and upholding the denial "if any
reasonable view of the record supports it." United States v.
Gonsalves, 859 F.3d 95, 103 (1st Cir. 2017). Stated slightly
differently, "[u]nder this rubric we can likewise affirm a denial
on any basis apparent in the record." Id. Applying this standard,
we affirm the denial of Joel's motion to suppress the gun.
We can quickly dispose of one argument Joel raises here:
that the trial judge erred by not conducting a pretrial hearing
before denying the motion to suppress, instead relying on the
search warrant application and supporting affidavit completed
after the warrantless stop. The government responds that Joel was
not entitled to a hearing on his motion because he hadn't pointed
to any disputed facts. Generally, the district court has - 27 -
discretion as to whether it holds an evidentiary hearing when
considering a motion to suppress evidence, so abuse of discretion
informs our review of the trial court's denial of an evidentiary
hearing. United States v. Ponzo, 853 F.3d 558, 572 (1st Cir.
2017). "A defendant has no right to an evidentiary hearing unless
he shows 'that material facts are in doubt or dispute, and that
such facts cannot reliably be resolved on a paper record' -- most
critically, he 'must show that there are factual disputes which,
if resolved in his favor, would entitle him to the requested
relief.'" Id. (quoting United States v. Francois, 715 F.3d 21, 32
(1st Cir. 2013)). Notably, Joel still has not pointed to any
material facts about the stop and seizure of the gun he believes
are in dispute. Additionally, Joel never requested a hearing,
either in his pretrial motion to suppress or when he renewed his
motion during trial. The trial judge did not, therefore, abuse
her discretion by not holding a hearing.
Aside from his procedural gripe, Joel argues Agent Ortiz
did not have any "specific articulable facts to justify" pulling
him over because the level of tint on the windows was merely a
disingenuous pretext for the stop. The government says the tinted
windows provided plenty justification. We agree. There is no
doubt that "[a]n officer can stop a car if he sees a driver commit
a traffic offense, even if the stop is an excuse to investigate
something else." United States v. McGregor, 650 F.3d 813, 820 - 28 -
(1st Cir. 2011) (citing Whren v. United States, 517 U.S. 806, 810
(1996)). The officer can then order those inside the vehicle to
get out. Id. (citing Maryland v. Wilson, 519 U.S. 408, 410, 414-
15 (1997)). Officer Ortiz, based on his training and experience,
testified he initiated the traffic stop in part because he noticed
Joel's unlawfully tinted front window. This alone, under the
governing case law, is adequate justification for the stop.14
Joel raises no challenge to the seizure of the gun once
he stopped the car. And there is no dispute Officer Berrios saw
the gun on the floor of the driver's seat when Joel was exiting
the car, which the trial judge so found. The denial of Joel's
suppression motion is, therefore, affirmed.
EVIDENTIARY ISSUES
The defendants raise a litany of evidentiary issues,
which we address in turn. These issues include whether:
• the handwritten notes from law enforcement's interviews with
codefendants should have been produced to the defendants;
• the handwritten notes on a series of documents admitted as
business records were properly admitted for a limited
purpose;
• the scope of cross-examination of some witnesses was
improperly limited;
14 For the first time on appeal, Joel argues -- spilling lots
of ink -- that Officer Ortiz lacked probable cause to stop him
because the supposed tip from an informant that the organization's
leaders met at a specific location each Thursday flunked the longestablished standards for reliability and credibility for tips.
Bypassing forfeiture and plain error review, we decline to address
Joel's argument because, as the government correctly points out,
the stop was justified by the tinted windows infraction.- 29 -
• proffered impeachment testimony was erroneously disallowed;
and
• the trial judge should not have allowed multiple witnesses to
testify about the same investigatory incident.
In order to sensibly address these issues, we need to introduce
four men who were indicted along with the defendants but pled
guilty before trial and became CWs for the government: Manuel
Ferrer Haddock ("Ferrer"), Jaime Lopez Canales ("Lopez"), Jamie
Rivera Nieves ("Rivera"), and Miguel Vega Delgado ("Vega").15
Testifying law enforcement agents involved in the investigation
also feature prominently in the evidentiary challenges raised in
this next section. We will provide a summary of their testimony
that is relevant to the evidentiary issues raised here as we go.
Rough notes from interviews with CWs
(Suanette, Juan)
Law enforcement officers jotted down informal notes when
they formally interviewed CW Lopez and CW Ferrer. They then
prepared official reports which Suanette and Juan received. Both
defendants contend the "rough notes" should have been given to
them during the trial upon their request. Suanette's arguments
here focus on the notes' supposed value as exculpatory evidence
while Juan's claims hinge on an alleged Jencks Act violation.
15 Per "Spanish naming conventions, if a person has two
surnames, the first (which is the father's last name) is primary
and the second (which is the mother's maiden name) is subordinate."
United States v. Martínez-Benítez, 914 F.3d 1, 2 n.1 (1st Cir.
2019).- 30 -
CW Lopez
(Suanette)
In August 2014, Suanette filed a motion to compel the
production of the "rough notes" from CW Lopez's interview.
Invoking both the Jencks Act (18 U.S.C. § 3500) and Brady v.
Maryland, 373 U.S. 83 (1963) (but not explaining how either
entitled her to the notes she sought), Suanette said these "rough
notes" were "fundamental in corroborating the witness information
in the DEA report and to verify" the consistency of CW Lopez's
testimony before the grand jury and trial jury. Suanette also
asked that, in the alternative, the notes be produced to the trial
court for in camera inspection before ruling.
At the court's request that Suanette explain her "need"
for the notes, Suanette provided additional details to support her
motion for production. Suanette admitted she'd received
"synops[e]s" of the Lopez interviews, but complained they were
insufficient because they captured the agents' "interpretation[]
of what . . . [Lopez] told them" and not the raw information
straight from his mouth. Also in her response, Suanette claimed
although she had evidence CW Lopez had not mentioned her during
his first interview she was also entitled to the rough notes from
his other four interviews because if Lopez did not name her in any
of these subsequent interviews then those notes would also be
exculpatory evidence.- 31 -
In a written order, the trial judge denied Suanette's
motion to compel, concluding neither the Jencks Act nor Brady
entitled her to the rough notes. Labeling "sheer speculation"
Suanette's argument that the agents' interview summaries might be
missing "evidence or information favorable to them of an
exculpatory nature," she concluded Suanette had not made a
"colorable [Brady] claim." With respect to Suanette's Jencks Act
contention, the judge concluded she would only be entitled to the
notes if CW Lopez actually adopted the contents of the agents'
interview notes as his own.
On appeal, Suanette again argues that, because the
official DEA report of all CW Lopez's interviews did not include
her name in connection with the conspiracy, the rough notes are
exculpatory as well as impeachment evidence that should have been
produced pursuant to Brady: exculpatory because the reasonable
inference from the failure to name her is that she was not involved
in the conspiracy and impeachment because the notes contradicted
CW Lopez's trial testimony. There, he testified that he bought
marijuana from Suanette at the drug point in Villa Margarita on
Amapola Street from 2007 to 2008 and she "collected the money"
from the customers while her husband handed over the product,
information which, if true, would have found its way into the rough
notes. Plus, according to Suanette, his testimony about her
alleged involvement supposedly conflicted with that of CW Vega. - 32 -
(We'll get into this supposed conflicting testimony a little later
when we address Suanette's sufficiency argument). By not having
this supposedly exculpatory evidence during the trial Suanette
says she was prejudiced.16 If there was doubt about the relevance
of the rough notes, the trial judge, at minimum, should have made
an in camera inspection of them.
The government responds that the trial judge did not
abuse her discretion when she denied Suanette's motion to compel
because the rough notes were immaterial and not likely exculpatory.
Immaterial because Suanette already knew and had evidence CW Lopez
never told law enforcement agents she was part of the drug
conspiracy -- her name was not on the list of alleged members of
the drug trafficking organization that law enforcement included in
their official report from the interviews with him. Further, as
the government points out, Suanette cross-examined CW Lopez at
length about whether he had mentioned her during his formal
interviews. The rough notes were also immaterial because CW Lopez
was not the only witness to testify about Suanette's drug
transactions.
16 We do not discern any argument on appeal challenging the
trial judge's conclusion that the rough notes sought were not
discoverable pursuant to the Jencks Act. We read Suanette's
argument to focus entirely on the value of the rough notes as
exculpatory and impeachment evidence. But we will soon get into
the Jencks Act when we address Juan's arguments about rough notes
from CW Ferrer's interviews below.- 33 -
As for the trial judge's refusal to inspect the notes in
camera, the government says Brady does not allow fishing
expeditions and Suanette did not show the notes would contain
exculpatory or impeachment information that was not already in
other documents in her possession. As we view it, the government
has the better arguments on this issue, and we'll explain why after
first setting out the governing legal principles.
A trial judge's conclusion that information is not
exculpatory under Brady gets examined through an abuse-ofdiscretion lens. United States v. Schneiderhan, 404 F.3d 73, 78
(1st Cir. 2005) (citing United States v. Rosario-Peralta, 175 F.3d
48, 55 (1st Cir. 1999)). To make an effective Brady claim, "[t]he
evidence at issue must be favorable to the accused, either because
it is exculpatory, or because it is impeaching; that evidence must
have been suppressed by the [government], either willfully or
inadvertently; and prejudice must have ensued." United States v.
Avilés-Colón, 536 F.3d 1, 19 (1st Cir. 2008) (quoting Strickler v.
Greene, 527 U.S. 263, 281-82 (1999)). "The import of withholding
evidence is heightened 'where the evidence is highly impeaching or
when the witness' testimony is uncorroborated and essential to the
conviction.'" Id. (emphasis omitted) (quoting Conley v. United
States, 415 F.3d 183, 189 (1st Cir. 2005)). "Suppressed
impeachment evidence is immaterial under Brady, however, if the - 34 -
evidence is cumulative or impeaches on a collateral issue." Id.
(quoting Conley, 415 F.3d at 189).
After reviewing the record as a whole, we do not see how
Suanette could have gained anything substantial from the
production of the rough notes from CW Lopez's interviews, even if,
had they been produced, they revealed no mention of Suanette's
name. Here's why: as Suanette herself discusses in her brief,
she asked one of the law enforcement agents who interviewed CW
Lopez if Lopez ever mentioned Suanette during his interviews. The
agent said he couldn't remember. When pressed again, the agent
agreed that he would have "[m]ost likely" written her name down if
CW Lopez had mentioned her. This exchange makes the precise point
Suanette says she needed to make.
Moreover -- and as the government indicates -- the DEA's
official report of the interviews with CW Lopez included a list of
the members of the drug trafficking organization under
investigation that CW Lopez fingered, and Suanette wasn't on that
list. We fail to see how the absence of her name from the rough
notes -- if that is what the rough notes actually confirmed --
could have had more qualitative value than the absence of her name
from the list of members in the DEA's summary report. In
consequence, the rough notes were immaterial and also cumulative
of other evidence in the record. Therefore, the trial judge's - 35 -
decision denying Suanette's motion to compel production of the
rough notes was hardly an abuse of her discretion.
CW Ferrer
(Juan)
During the trial testimony of CW Ferrer, Juan's counsel,
pursuant to the Jencks Act, moved for production of the rough notes
from CW Ferrer's interviews with law enforcement agents. Juan's
counsel wanted more than the summaries already provided by the
government because, according to him, CW Ferrer was adding new
details to his testimony and because of this, he wanted the notes
to compare what CW Ferrer said back then to what he was saying in
court. The trial judge verbally denied the motion and addressed
it again when she ruled on Suanette's written motions for the
production of the rough notes from CW Lopez's interviews. In the
written order, the trial judge left the production issue open for
further consideration depending on how he answered a couple of
questions. Because the Jencks Act requires a witness to sign or
verify a third party's accounting of the witness's testimony, she
ruled she would ask CW Ferrer if the government agents read their
notes back to him during his interview and whether he had approved
the notes as read back.
During trial, the trial judge did precisely as she said
she would. CW Ferrer stated he could recall some notes read back
to him but not whether he approved them, or if he did, whether it - 36 -
was verbally or by signing something. He was interviewed on at
least seven occasions and did not recall what or how much was read
back to him on any given day, nor whether he had raised any
discrepancies between what he said and what was read back to him.
The trial judge declined to order production of the rough notes
because she lacked the required affirmative evidence that CW Ferrer
adopted the written notes as his own. Therefore, they did not
qualify as Jencks Act statements.
On appeal, Juan contests the trial court's findings. He
asserts CW Ferrer did in fact adopt the rough notes because he
testified that the notes were read back to him even if he could
not remember if he approved them verbally or in writing and did
not recall discussion of any discrepancies. Jencks requires
nothing more, he says. The government says that the trial judge
committed no error. Juan had all he needed to cross-examine Ferrer
about his interviews with the agents -- the DEA-6 report (the
official report of the investigation).
Our review of the trial judge's Jencks Act determination
is for abuse of discretion. See Schneiderhan, 404 F.3d at 78.
"The Jencks Act, 18 U.S.C. § 3500, in concert with Fed.
R. Crim. P. 26.2, controls the production of certain witness
statements in the government's possession." United States v.
Marrero-Ortiz, 160 F.3d 768, 775 (1st Cir. 1998). "[T]o be
discoverable under the Jencks Act, a government record of a witness - 37 -
interview must be substantially a verbatim account." United States
v. Sepulveda, 15 F.3d 1161, 1179 (1st Cir. 1993) (citing United
States v. Newton, 891 F.2d 944, 953–54 (1st Cir. 1989)). In
addition -- and most importantly here -- "the account must have
been signed or otherwise verified by the witness himself." Id.
(citing United States v. Gonzalez-Sanchez, 825 F.2d 572, 586-87
(1st Cir. 1987)).17
"Where a defendant requests discovery of potential
Jencks material, our precedent requires the district judge to
conduct an independent investigation of any such materials and
determine whether these materials are discoverable under the
Jencks Act." United States v. Gonzalez-Melendez, 570 F.3d 1, 3
(1st Cir. 2009) (per curiam) (emphasis omitted).
This independent review may include such measures as in
camera inspection of any disputed document(s), and
conducting a hearing to evaluate extrinsic evidence,
including taking the testimony of the witness whose
17 18 U.S.C. § 3500(b) provides that:
After a witness called by the United States has testified
on direct examination, the court shall, on motion of the
defendant, order the United States to produce any
statement (as hereinafter defined) of the witness in the
possession of the United States which relates to the
subject matter as to which the witness has testified. If
the entire contents of any such statement relate to the
subject matter of the testimony of the witness, the court
shall order it to be delivered directly to the defendant
for his examination and use.
Crucial for Juan's argument, however, is that a statement is
defined in § 3500(e)(1) in relevant part as "a written statement
made by said witness and signed or otherwise adopted or approved
by him." (Emphasis added.)- 38 -
potential statements are at issue as well as the person
who prepared the written document in which those
statements appear.
Id. at 3 n.2 (citing Goldberg v. United States, 425 U.S. 94, 108-
09 (1976)). As we previously described, the trial judge did just
that: she undertook the required "independent investigation" when
she probed CW Ferrer's recollection and understanding of the
agents' interview notes. See id. at 3 (emphasis omitted). She
even expanded the inquiry by allowing Juan's attorney to ask
clarifying questions before explaining her Jencks Act ruling.
In support of his claim of error, Juan insists the facts
here are analogous to those in Goldberg, where a CW who had been
interviewed by prosecutors a few times prior to trial couldn't
perfectly recall whether the attorneys' handwritten notes were
read back to him or whether he was always asked if the notes were
accurate. 425 U.S. at 100-101. Even though the Goldberg court
remanded, this case is not helpful to Juan because the Supreme
Court was primarily focused on whether the notes were attorney
work product. Id. at 101-08. Indeed, part of the scope of the
ordered remand was for the trial court to determine, as a matter
of fact, whether the "notes were actually read back to [him] and
whether he adopted or approved them." Id. at 110. We conclude
then, as the trial judge did, that the government was not obligated
to produce these rough notes because the trial court's
investigation did not establish CW Ferrer approved the notes taken - 39 -
during his interviews and the notes did not therefore qualify as
statements pursuant to the Jencks Act. See Marrero-Ortiz, 160
F.3d at 775-76 (holding the government had no obligation to produce
rough notes taken by a government official during an interview
with an individual who testified for the government at trial
because there was no evidence on the record that the witness
adopted the notes). The trial judge did not abuse her discretion.
Business records from North Sight Communications
(Joel, Carlos, Juan)
One piece of physical evidence admitted during trial was
a set of business records from North Sight Communications ("North
Sight"), a business with whom one of the members of the conspiracy
had an account for cell phones with a walkie-talkie-type
functionality. Some of the pages of the records had handwritten
notes, linking each specific device associated with the account to
a specific individual. Joel, Carlos, and Juan challenge the trial
judge's decision to admit these handwritten notes.
Here's how these notes and records were allowed: about
halfway through the trial, Angel Miranda, Vice President of North
Sight, testified that his company offered Motorola iDEN service,
which allowed a cellular phone to be used as a walkie-talkie as
well as a regular phone and, with the right plan, one phone could
radio broadcast to several other units at the same time. Miranda
explained that when a fleet (or large group) of devices was issued - 40 -
under one account, a North Sight employee made handwritten notes
as a regular course of business on the customer's printed account
documents connecting the name of each individual who had a device
with the device assigned to that individual. These handwritten
notes were made while the customer stood in front of the employee
and indicated who had which device listed on the account. These
hard copy invoices and other records on the account were then
stored in physical files.
The file for the account opened under the name Carlos
Rivera Rivera (aka Carlitos, Suanette's husband, one of the
individuals indicted along with the other defendants in this case)
included approximately 100 pages and was admitted as an exhibit at
trial, over the defendants' objections, under the business record
exception to the rule against hearsay. In line with Miranda's
description of North Sight's business practice, some of the pages
reflected handwritten names and numbers, including the first names
or nicknames of some of the defendants presently appealing.
The defendants objected on the basis that the
handwritten notations presented impermissible double hearsay.
After lengthy voir dire of the witness and much argument by
counsel, the trial judge concluded the "handwritten notes on those
pages [were] . . . probative of association between members of the
alleged conspiracy. There's no other possible probative value."
The trial judge proposed a limiting instruction for the jury to - 41 -
make it clear that the jury could only consider the handwritten
notes for the purpose of deciding whether the names reflected in
the notations might be associated with one another. According to
the trial judge, "there's no double hearsay problem if that's the
only purpose for which it's allowed." The trial judge issued two
written orders on this evidentiary ruling as well.
The trial judge issued the following limiting
instruction to the jury:
Members of the jury, I instruct you that you can consider
all of the 105 pages of this Exhibit 177 for the truth
of the data or the matters contained in those pages
except for the annotations handwritten by the North
Sight Communications employee whose source of
information was an outsider and which appear at these
particular pages, 33-34, 61, 69, 94-95, 99 and 101. These
handwritten notes on these specific pages can only be
considered by you, the jury, for the limited purpose of
determining whether the same -- referring to the notes,
handwritten notes -- establish association among the
alleged members of the drug conspiracy as charged in the
Indictment.
Joel asked the trial judge to reconsider her ruling and she
explained in an order considering his request that the admission
of the handwritten notes was "for the limited purpose of the jury
determining whether the records establish an association between
the alleged members of the drug conspiracy charged. This is no
different than tallies, logs, ledgers, contact lists . . . which
are admitted in determining association in criminal activity."
We review preserved objections to "[e]videntiary
rulings, including whether to admit evidence over a hearsay - 42 -
objection, . . . for abuse of discretion." United States v. ColónDíaz, 521 F.3d 29, 33 (1st Cir. 2008).
Juan, Carlos, and Joel all argue that the judge was wrong
to admit these handwritten notes for any purpose because the
accuracy and veracity of the notes could not be confirmed. These
defendants emphasize that, if the jury was allowed to consider
whether the notes showed association between the alleged
conspirators, then the jury would first have to consider the notes
to be true and accurate.
The government responds that the handwritten notations
were properly admitted with limitation to infer association
between the names in the notes and the defendants on trial as well
as the association between the alleged members of the conspiracy
-- the court's limiting instruction appropriately tailored these
purposes. This court, argues the government, has previously
allowed circumstantial evidence of association between alleged
coconspirators when, for example, a payroll list seized from a
defendant's bedroom was admitted for this limited purpose and the
jury was told not to consider it for the truth of the information
contained on it. United States v. Hensel, 699 F.2d 18, 33-35 (1st
Cir. 1983). The government also points us to the admission of a
hand-written drug ledger kept on a pad of paper by a codefendant
for the purpose of showing the existence of a drug conspiracy.
Casas, 356 F.3d at 124-25. Of course, as Juan and Joel point out, - 43 -
these cases involved a codefendant as the author of the writings,
whereas here there is no suggestion that a codefendant wrote the
notations on the admitted North Sight business records or even
verified what had been written. This is an important distinction,
which the trial judge did not appear to consider when articulating
her decision to allow the handwritten notes here.
We need not decide whether this distinction means the
trial judge erred when she admitted the exhibit for the limited
purpose expressed because, even if she erred, the error was
harmless and doesn't warrant disturbing the jury verdict.18 See
United States v. Laureano-Pérez, 797 F.3d 45, 68-69 (1st Cir. 2015)
(declining to decide whether an error had been made because the
error, if any, was harmless). Improperly admitted evidence "is
harmless if it is 'highly probable that the error did not influence
the verdict.'" United States v. Meises, 645 F.3d 5, 23 (1st Cir.
2011) (quoting United States v. Flores-de-Jesús, 569 F.3d 8, 27
18 Juan's discussion of United States v. Blechman, an out-ofcircuit case holding the trial court in that case erred by
admitting online account records as a business record exception to
the rule against hearsay, 657 F.3d 1052, 1056-58, 1066 (10th Cir.
2011), is not what persuades us there may have been error here.
As the trial judge aptly distinguished in her order addressing
Joel's request that she reconsider her ruling about the handwritten
notes on the North Sight records, the district court in Blechman
had admitted the documents as Federal Rule of Evidence 803(6)
business records, whereas she acknowledged the double hearsay
problem with the handwritten notes and did not admit them for that
reason, but allowed the jury to see the notes for the expressly
limited purpose she articulated.- 44 -
(1st Cir. 2009)); see also United States v. Montijo-Maysonet, 974
F.3d 34, 49 (1st Cir. 2020) (error may be considered harmless when
"the record minus the improper[ly admitted evidence] gives us 'fair
assurance . . . that the [jurors'] judgment was not substantially
swayed by the error'" (quoting Kotteakos v. United States, 328
U.S. 750, 765 (1946))). The harmlessness "inquiry requires a casespecific examination of factors that include 'the centrality of
the tainted material,' its prejudicial impact, and any other
indications that 'the error affected the factfinder's resolution
of a material issue.'" Meises, 645 F.3d at 24 (quoting Sepúlveda,
15 F.3d at 1182). The burden to establish harmlessness falls on
the government, id.; the government carried this burden by pointing
to the ample other evidence that by itself convincingly established
the necessary connections among Juan, Carlos, and Joel, and with
other alleged members of the drug enterprise.
The government has shown that, without the exhibit in
question, there was other evidence that Juan, Carlos, and Joel
knew each other and associated with other alleged members of the
drug conspiracy. For example, with respect to Juan, one of the
testifying law enforcement agents (Special Agent Cedeño) told the
jury during trial that the notebook seized from the kitchen of
Juan's apartment included a list of names and phone numbers; the
names corresponded to nicknames of several of the other alleged
members of the organization. Another law enforcement agent - 45 -
testified about watching Juan's authority over other suspected
members during one part of the investigation when Juan ordered
these men to comply with that law enforcement agent's instructions
to the group of them. And CW Vega testified he observed Juan
receive pre-packaged drugs from other people CW Vega knew to be
members of the drug enterprise.
In addition, CW Ferrer testified about his participation
in meetings among alleged coconspirators including Juan, Carlos,
and Joel. One such meeting occurred when CW Ferrer and his cousin
were physically with Carlos and Joel; CW Ferrer testified he
watched Joel speak with Juan using a walkie-talkie type of function
on his cell phone to ask Juan questions about why Juan was not
with them in person. These examples of evidence in the record
show that apart from the handwritten notes the jury had other
convincing evidence from which to find the alleged members of the
drug enterprise knew each other and spent time together. As a
result, the government has shown that any error in admitting the
North Sight business records with the handwritten notations was
harmless because it was "highly probable" this single exhibit did
not sway the verdict. Id. at 23.
Limited cross-examinations
(Idalia, Juan, Joel, Carlos)
Up next is whether the trial judge impermissibly limited
the scope of cross-examination of some of the witnesses. Idalia, - 46 -
Juan, Joel, and Carlos contend the trial judge did just that in
violation of their Sixth Amendment Confrontation Clause rights.
"The Confrontation Clause of the Sixth Amendment guarantees
criminal defendants the right to cross-examine witnesses who
testify against them," United States v. Casey, 825 F.3d 1, 23-24
(1st Cir. 2016) (citing United States v. Vega Molina, 407 F.3d
511, 522 (1st Cir. 2005)), so defendants can "test the
believability of a witness and the truth of his testimony," United
States v. Rivera-Donate, 682 F.3d 120, 126 (1st Cir. 2012) (quoting
United States v. González-Vázquez, 219 F.3d 37, 45 (1st Cir. 2000)
(internal quotation omitted)). "This right is not without limits,
however; the district court wields considerable discretion to
impose 'reasonable limits' on cross-examination." Casey, 825 F.3d
at 24 (quoting United States v. Raymond, 697 F.3d 32, 39-40 (1st
Cir. 2012)). "When a witness's credibility is at issue, the trial
court may limit cross-examination as long as the court
allows sufficient leeway to establish a reasonably complete
picture of the witness' veracity, bias, and motivation." RiveraDonate, 682 F.3d at 126 (quoting González-Vázquez, 219 F.3d at 45)
(internal quotation omitted). "We review de novo whether a
defendant was afforded a reasonable opportunity to impeach a
witness, and for abuse of discretion limitations the trial court - 47 -
imposed on that opportunity." Casey, 825 F.3d at 24 (citing
Raymond, 697 F.3d at 39-40).
CW Vega
(Idalia)
Idalia argues the trial judge infringed her
Confrontation Clause rights when Idalia was not permitted to
question CW Vega about whether he had met with the prosecutors
outside the courtroom after he started testifying. Here's how
this controversy unfolded during trial: CW Vega was one of the
witnesses who testified about his observations of, and
interactions with, Idalia. When he first testified about the
timing and frequency of his crack cocaine purchases from Idalia at
the residence she shared with her husband, codefendant Carlos,
during the summer of 2006, CW Vega said he bought crack from a
"woman" but he was not asked if the woman from whom he bought the
crack was in the courtroom and he did not offer an in-court
identification on his own. He indicated he had not known -- or
ever found out -- who the "woman" was the first time he encountered
her when he'd approached Carlos's house looking to buy crack from
Carlos but bought instead from the woman who'd emerged from the
house when he had yelled for Carlos. CW Vega also testified that
he bought vials of crack from this woman at this house around
sixteen times over a one-to-two month period and, during this same - 48 -
period, he also bought vials of crack from Carlos from this same
house.
A few days into his testimony (he testified on at least
nine separate days), the prosecutor sought to introduce a photo of
Idalia. Idalia's attorney objected because CW Vega had not
identified Idalia a few days prior when he had been testifying
about his crack purchases from the woman at Carlos's house. At
the court's suggestion, the prosecutor asked CW Vega if the woman
from whom he had purchased the crack was in the courtroom and he
identified Idalia without any detectable hesitation in open court.
The next morning, Idalia's counsel raised a concern
about potential prosecutorial misconduct after a codefendant's
counsel reported to her that his client had seen two of the
prosecutors leave the room in the courthouse where testifying
witnesses typically cooled their heels when they weren't on the
stand. The codefendant was clear that she had not seen CW Vega
(or anyone else) in the room, but Idalia's counsel expressed a
concern that, because CW Vega initially testified he had not known
the identity of the woman at Carlos's house who sold him crack in
June 2006 but a few days into his testimony identified Idalia in
court as that woman, the prosecutors had influenced his memory and
subsequent identification of her.
One of the prosecutors volunteered that she had been in
the witness room with CW Vega a couple of times to discuss - 49 -
scheduling and dietary matters but adamantly denied discussing any
part of his testimony with him. The trial judge lightly
reprimanded Idalia's counsel for jumping to conclusions without a
stronger basis because seeing prosecutors emerge from a room
holding trial papers did not in and of itself mean there was any
misconduct. The trial judge also reminded Idalia's counsel that
she would have an opportunity to cross-examine CW Vega about his
in-court identification.
During Idalia's cross-examination, CW Vega answered "no"
when first asked whether he had met with the prosecutors during
his testimony. After CW Vega confirmed his testimony with respect
to not knowing the identity of the woman the first night a woman
sold him the vials of crack at Carlos's house and then identifying
Idalia when asked if he saw the same woman in the courtroom, Idalia
asked whether he had met with the prosecutors during the lunch
recess immediately prior to his in-court identification of Idalia.
The trial judge did not allow CW Vega to answer the question,
removed the jury from the courtroom, and admonished Idalia's
counsel for her inquiry into this subject when the trial judge had
already inquired and resolved it when she determined there was no
indication of any actual misconduct.
On appeal, Idalia asserts the trial judge erred by not
allowing her to cross-examine CW Vega about his suspected lie when
he said he had not met with prosecutors during the course of his - 50 -
several days of testimony. Idalia contends that, beyond the issue
of impeaching CW Vega's credibility, the limit placed on her crossexamination meant she could not explore his "reliability and
potential suggestiveness." Idalia refers to this issue in her
brief as a violation of her "due process" rights but her analysis
is actually structured as a Sixth Amendment Confrontation Clause
challenge, so we shall follow her lead and proceed under this
latter framework.
The government counters Idalia had been permitted to
cross-examine CW Vega extensively about his interactions with the
woman who sold him crack as well as his subsequent identification
of this woman as Idalia. As such, says the government, the trial
judge did not abuse her discretion to reasonably limit the scope
of cross-examination.
After reviewing the transcript of CW Vega's testimony on
direct and cross-examination, in our view, there is no doubt Idalia
was provided an adequate, reasonable opportunity to impeach CW
Vega's direct testimony about his interactions with -- and
identification of -- the woman from whom he bought the vials of
crack. Idalia asked a series of detailed questions checking his
testimony from the day he discussed his purchases to the day he
identified Idalia in court. Idalia also asked a long series of
questions delving into the history of CW Vega's drug use and
effects he experienced while using drugs.- 51 -
When the trial judge cut off Idalia's attempt to bring
up the conversations in the witness room between CW Vega and the
prosecutors, she explained her concern that the trial would turn
into an evidentiary hearing about the dubious conversation and she
did not think such inquiry was justified based on what Idalia's
codefendant reported observing and what the prosecutor
acknowledged. But Idalia was permitted to continue her crossexamination after the trial judge told counsel to refrain from the
inquiry about the witness room. Moreover, as Idalia herself points
out, CW Vega's credibility was laid to bare when he admitted during
cross-examination by counsel for a codefendant that he had deceived
both probation officers and judges in the past, which she concludes
must mean he has no trouble with lying to authority. Therefore,
CW Vega's credibility and reliability were explored during his
cross-examinations by more than one codefendant's attorney and the
jury had abundant information from which to decide whether he
testified truthfully about his identification of Idalia as the
woman who sold crack to him.19 For all of these reasons, the record
19 Juan also makes a cursory statement that the trial judge
erred by not allowing him to inquire about CW Vega's meetings with
the prosecutors during his cross-examination of this witness and
that this inquiry would have resulted in a successful impeachment
of Vega's testimony. As the government points out, however, Juan's
contention on this matter is waived for his failure to flesh out
the argument. See Chan, 981 F.3d at 50 n.4 (citing Rodríguez v.
Mun. of San Juan, 659 F.3d 168, 175 (1st Cir. 2011) ("[W]e deem
waived claims not made or claims adverted to in a cursory fashion,
unaccompanied by developed argument.")). And as we have just - 52 -
shows the trial judge gave Idalia plenty of leeway to impeach CW
Vega's identification of Idalia as one of the people from whom he
bought crack. The reasonable limitations she placed on the scope
of the cross-examination were not an abuse of discretion. See
Casey, 825 F.3d at 24.
Sergeant Rivera Vélez
(Juan)
We turn now to Juan's complaint that the trial judge did
not allow him to explore, during cross-examination, a meeting a
trial witness had with the prosecutors during a court recess after
the witness had started testifying. Puerto Rico Police Sergeant
Luis Rivera Vélez was the first witness to testify at the trial.
After a couple of days of testimony, the government disclosed to
the trial judge, outside the presence of the jury, that it had met
with this witness the morning of his second day of testimony to
review and cut down the number of exhibits the government was
admitting into evidence through him. Apparently there was some
confusion on the government's part about whether it had been
allowed to meet with its witness in the middle of his direct
testimony. But after hearing the government's disclosure and
explanation for what happened, the trial judge ultimately decided
the government and the witness had genuinely misunderstood the
written, the trial judge did not abuse her discretion when she did
not allow this line of inquiry during the defendants' respective
cross-examinations of this witness.- 53 -
court's instructions and had not violated a court order when they
met to discuss the trial exhibits.
During Juan's cross-examination of Sergeant Rivera, the
trial judge interrupted his inquiry about whether the sergeant
recalled the trial judge's instruction during the first day of
testimony about not discussing the testimony with anyone. During
a conversation at side bar, the trial judge admonished Juan's
counsel for his attempt to impeach the witness based on an event
that had been discussed, researched, and determined to have been
the result of some confusion on the part of the government's
attorneys and not of misconduct on the part of either the
government or the witness. The trial judge ruled that, absent
some indication that the witness had met with the government after
the discussion following the government's own admission about the
misunderstanding, Juan's counsel could not exploit the early
misunderstanding as part of his attempt to impeach the witness's
credibility.
Juan frames his complaint about the limitation on the
scope of cross-examination as a violation of his right to confront
Sergeant Rivera. Without citing any case law, Juan asserts the
cross-examination would have been relevant to show the witness had
a tendency to ignore the law, including the trial judge's explicit
instructions. The government responds that Sergeant Rivera was
not at fault for meeting with the government mid-testimony because, - 54 -
as the trial judge explicitly found, he had been guided by the
government's misunderstanding of the rules. The government also
argues -- and the transcripts confirm -- that Juan and his
codefendants were permitted to cross-examine Sergeant Rivera at
length about various topics discussed during the direct
examination.
After reviewing the testimony and discussion around this
testimony, it is clear Juan had a full opportunity to cross-examine
this witness and that the trial judge placed a reasonable and
permissible limitation on the scope of Juan's cross-examination.
We perceive no abuse of discretion here either. See Casey, 825
F.3d at 24.
Other witnesses
(Joel and Carlos)
Joel argues (and Carlos joins) his confrontation rights
were infringed when the trial judge limited the scope of crossexamination and/or re-cross-examination for five of the
government's witnesses. Joel contends the limitations improperly
prevented him and his codefendants from developing their defense
theory that other drug points were operating in the same area where
they were accused of operating. Joel provides five examples of
where he tried, during cross-examination, to elicit information - 55 -
about how other organizations' drugs were packaged but the trial
judge cut it off as irrelevant and collateral.
The government picks apart these five examples by
pointing out that the defendants did in fact have the opportunity
to cross-examine the witnesses they now claim they were precluded
from questioning. Moreover, the government argues there were
several witnesses who did testify about different drug packaging
types and colors and, ultimately, that the jury got to hear the
defendants' theory about more than one drug enterprise operating
out of the same areas. A review of the trial transcripts supports
the government's assertions here. Even when the trial judge
sustained an objection from the government after Joel or a
codefendant asked a specific question about other drug points or
drug packaging details, the government asserts -- and the record
shows -- that the defense got its main point across.20 This
20 The trial judge did sustain several objections during crossexamination and re-cross-examination about the details of other
possible drug points at or around Los Claveles as beyond the scope
of the direct or re-direct examination and such is a valid reason
to sustain the objection. See United States v. Weekes, 611 F.3d
68, 70 (1st Cir. 2010) (Souter, J.) (holding no abuse of discretion
when defendant was not allowed to cross-examine a witness about a
matter outside the scope of the witness's direct testimony but
other witnesses were questioned about that matter); United States
v. Kenrick, 221 F.3d 19, 33 (1st Cir. 2000) (en banc)
(acknowledging district court's "'extensive discretion' in
controlling re-cross-examination"), abrogated on other grounds by
Loughrin v. United States, 573 U.S. 351 (2014).- 56 -
particular drug trafficking enterprise on trial was not the only
game in town.
As we stated above, "the district court wields
considerable discretion to impose 'reasonable limits' on crossexamination." Casey, 825 F.3d at 24 (quoting Raymond, 697 F.3d at
39-40). Reviewing de novo whether Joel and the other defendants
were given a reasonable opportunity to question each of the
witnesses discussed in Joel's brief and the limitations on the
scope of the cross or re-cross for abuse of discretion, we see the
transcripts are replete with examples of these witnesses
acknowledging other drug points operated by different people in
areas similar to where the defendants before us were accused of
operating their drug trafficking business. See id. In addition,
we see no abuse of the trial judge's discretion to limit the scope
of their cross-examination and re-cross-examination of these
witnesses.
Excluded defense witnesses
(Juan)
Juan challenges the trial judge's decision not to allow
him to present witnesses to impeach certain testimony offered by
CW Ferrer. To place Juan's challenge in context, here is the short
version of what happened at trial. CW Ferrer testified (among
many other topics) about his drug addiction and that he supported
his drug addiction by "selling drugs; sometimes my grandma would - 57 -
give me some money, and, well, I would just hustle around. And I
had a legal job." When another defense counsel explored the
details of the "legal job" during cross-examination, CW Ferrer
testified that he had worked at a restaurant and as a security
guard. Juan eventually attempted to bring in witnesses whose
proffered testimony was to prove CW Ferrer had not worked at two
of the locations at which he claimed to have been employed in 2006
and 2008. Citing impermissible character evidence and collateral
impeachment, the government objected. After considering Juan's
proffer, the trial judge concluded these witnesses would not be
allowed to testify. Their testimonies, she reasoned, fell squarely
within the rule against impeachment by collateral evidence, had no
other relevance or probative value, and would not have been
material to the guilt or innocence of any defendant.
Before us, Juan challenges those conclusions and argues
he should have been allowed to call those witnesses who could
expose Ferrer's lies about his work history -- lies designed to
minimize this CW's role in the conspiracy and hide the fact that
he was -- in Juan's words -- a "major drug trafficker" for the
organization. For its part, the government countered that Juan's
proffered evidence would have been "the very definition of
collateral." We agree.
"A matter is collateral if 'the matter itself is not
relevant in the litigation to establish a fact of consequence, - 58 -
i.e., not relevant for a purpose other than mere contradiction of
the in-court testimony of the witness.'" United States v. Marino,
277 F.3d 11, 24 (1st Cir. 2002) (quoting United States v.
Beauchamp, 986 F.2d 1, 4 (1st Cir. 1993)). In general, a party
may not present extrinsic evidence for the sole purpose of
impeaching a witness on a collateral matter. Id. The decision on
whether a matter is collateral or material is within the district
court's discretion. United States v. DeCologero, 530 F.3d 36, 60
(1st Cir. 2008). Like the trial judge, we fail to see how CW
Ferrer's employment contemporaneous with his participation in a
drug distribution conspiracy has any bearing on the issue of Juan's
own culpability in that same conspiracy.21
Moreover, as Juan admits, he was allowed to and in fact
did cross-examine CW Ferrer about the witness's employment
history. In sum, the trial judge did not abuse her discretion
when she precluded Juan's proffered impeachment witnesses from
testifying.
21 Juan tries to carve a space for his excluded witnesses by
arguing that the truthfulness of CW Ferrer's statement regarding
his "legal job" became a legitimate issue to explore as soon as CW
Ferrer testified on direct, in response to the government's
questions, to this employment history. The government, however,
eliminates that space when it points out that CW Ferrer stated he
paid for his drugs by selling drugs and holding a "legal job" but
that the prosecutor did not ask any follow-up questions about his
"legal job," only his selling activity. The government states --
and this is supported by the trial transcripts -- that CW Ferrer
only stated details of these "legal jobs" after he was asked about
them on cross-examination.- 59 -
Repetitive testimony
(Joel & Carlos)
In Joel and Carlos's final evidentiary issue, they
contend the trial lasted 128 days in part because the trial judge
allowed the government to present needlessly long and repetitive
testimony about a few specific events, unearthed during the
investigation, which ultimately had an unduly prejudicial effect
on them in violation of Federal Rule of Evidence 403.22 Joel
(joined by Carlos) provides three examples:
• Five law enforcement agents testified about the same
surveillance day which yielded a military box with drugs
inside and a video taken of Joel yelling "snitch you are
going to die" to an unidentified listener.
• Five law enforcement agents testified about the discovery
of the gun in Joel's father's car the day that Joel was
pulled over.
• Four agents testified about a shooting incident on the
basketball court in Villa Margarita in which Joel got shot
in the arm and went to the hospital.23
22 Federal Rule of Evidence 403 says "[t]he court may exclude
relevant evidence if its probative value is substantially
outweighed by a danger of [among other reasons] needlessly
presenting cumulative evidence."
23 In considering Carlos's argument here, we note Joel
presents only conclusory arguments about the repetitive or
cumulative nature of the bulk of the testimony at issue. He
provides lists of transcript pages for the witnesses he asserts
provided the cumulative testimony for each incident, but he doesn't
describe how the various testimonies are repetitive to the point
of substantially outweighing their probative value. He also does
not refer us to any case precedent in which we found a Rule 403
error where a few witnesses have testified about the same event
and the district court declined to strike or disallow the
testimony.- 60 -
In response, the government, siding with the trial
judge's reasoning, says the testimony about these events was not
needlessly repetitive or cumulative just because more than one
witness testified about the same event since each witness added a
different part or perspective of the incident. Each witness here
challenged as needlessly cumulative was in fact needed to share
either different personal observations or vantage points of the
incident in question or to testify to a distinct temporal part of
the day the event occurred.
"Evidence is cumulative if repetitive, and if 'the small
increment of probability it adds may not warrant the time spent in
introducing it.'" Elwood v. Pina, 815 F.2d 173, 178 (1st Cir.
1987) (quoting 1 Weinstein's Evidence ¶ 401[07] at 401–47–48
(1985)). Rule 403 allows a trial judge "to 'exclude relevant
evidence if its probative value is substantially outweighed by a
danger of' certain pitfalls, including . . . 'needlessly presenting
cumulative evidence.'" United States v. Mehanna, 735 F.3d 32, 59
(1st Cir. 2013) (quoting Fed. R. Evid. 403). Abuse of discretion
guides our review of the district court's Rule 403 determination.24
24 The government suggests our review of the supposedly
cumulative testimony about the shooting incident on the basketball
court should be for plain error because Joel did not object to the
various law enforcement agent testimonies regarding this incident
on a Rule 403 basis. Because the trial judge recognized Joel's
standing objection throughout the trial to repetitive or
cumulative evidence and because we find no abuse of discretion in
allowing each of the witnesses Joel mentions to testify about the - 61 -
United States v. Dudley, 804 F.3d 506, 515 (1st Cir. 2015). "An
abuse of discretion showing is not an easy one to make. We afford
deference to the district court's weighing of probative value
versus unfair effect, only in 'extraordinarily compelling
circumstances' reversing that 'on-the-spot judgment' from 'the
vista of a cold appellate record.'" United States v. DiRosa, 761
F.3d 144, 154 (1st Cir. 2014) (quoting United States v. Doe, 741
F.3d 217, 229 (1st Cir. 2013)). In doing so, we acknowledge the
trial judge's "better position to assess the admissibility of the
evidence in the context of the particular case before it."
Mehanna, 735 F.3d at 59 (quoting Sprint/United Mgmt. Co. v.
Mendelsohn, 552 U.S. 379, 387 (2008)).
There is no debate that the trial judge has "considerable
latitude in Rule 403 rulings." United States v. King, 827 F.2d
864, 867 (1st Cir. 1987). And it is true, as Carlos points out,
that we have previously upheld a district court's decision to
exclude cumulative evidence on Rule 403 grounds as an appropriate
discretionary call. See id. But such an exclusionary call did
not happen here -- just the opposite -- so saying we've upheld
discretionary exclusionary rulings in the past without adequately
explaining why it was error here to allow the evidence is not
events Joel raises here, we do not conduct a separate plain error
analysis for the overruled objections during the testimony about
the shooting incidents.- 62 -
helpful to Carlos's cause. We have surveyed the testimonies Joel
contests and as in other cases we have examined, we find that
"[a]lthough [defendants] can point to instances in which the same
story was told more than once, such repetition" here "encompassed
new and relevant details." United States v. Muñoz-Franco, 487
F.3d 25, 67 (1st Cir. 2007). Additionally, Carlos fails to show
prejudice. See id. (noting "no indication" that "the arguably
cumulative nature of the evidence affected the outcome of the trial
in any way"). To whatever extent the testimonies from witnesses
overlapped, the trial judge did not abuse her discretion by
allowing each of the witnesses, who added to the story, to testify
over Joel's cumulative evidence objection.
With that conclusion, we move on to the next set of
issues.
UNFAIR TRIAL
(Joel, Carlos, Juan, Idalia)
Four defendants assert they were denied a fair trial for
several reasons and because of purported errors by the trial
judge.25 They claim they had to contend with:
• a biased and prejudiced jury,
25 Carlos mentions the denial of due process in his broad
summary of his arguments, asserting the bias of the trial judge
and the lack of access to daily trial transcripts denied him due
process, but he does not flesh out an argument about how his due
process rights were implicated here. Similarly, Joel makes a one
phrase claim that the "multiple errors" throughout the trial
"deprived [him] of his constitutional due process right to a fair
trial" but doesn't develop any argument about due process per se. - 63 -
• a biased trial judge, and
• a series of improper prosecutorial tactics.26
We'll delve into each of these arguments in turn, first setting
the scene for each claim.
Jury bias
Joel, Carlos, Juan, and Idalia each argue there was at
least one incident during the trial that either 1) showed the jury
was biased against them or 2) caused the jury to be biased against
them and their codefendants. Premise one is based upon two
separate notes written to the trial judge during trial. Premise
two arises from one juror's disclosure that he had recognized one
of the law enforcement witnesses. Before sifting through the
details of what happened at trial, we first spell out some general
principles that guide our thinking.
"'All would agree that an impartial jury is an integral
component of a fair trial' and must be 'jealously safeguarded.'"
Sampson v. United States, 724 F.3d 150, 160 (1st Cir. 2013)
(alteration adopted) (quoting Neron v. Tierney, 841 F.2d 1197,
1200-01 (1st Cir. 1988)). That said, "[a] district court has
broad, though not unlimited, discretion to determine the extent
Accordingly, our discussion in this section goes with their primary
framing of this issue as whether either were denied a fair trial
in any of the ways they argue to us.
26 The defendants add to this fair trial grievance list the
variety of evidentiary challenges we have already discussed and
rejected. - 64 -
and nature of its inquiry into allegations of juror bias." United
States v. Corbin, 590 F.2d 398, 400 (1st Cir. 1979) (citations
omitted). We review the trial judge's approach and resolution to
allegations of jury bias for abuse of discretion. United States
v. Ramírez-Rivera, 800 F.3d 1, 38 (1st Cir. 2015).
"[D]efendants seeking to establish juror misconduct bear
an initial burden only of coming forward with a 'colorable or
plausible' claim." United States v. French, 904 F.3d 111, 117
(1st Cir. 2018) (French I) (quoting United States v. Zimny, 846
F.3d 458, 464 (1st Cir. 2017)). "Once defendants have met this
burden, an 'unflagging duty' falls to the district court to
investigate the claim." Id. (quoting Zimny, 846 F.3d at 464).
"The type of investigation the district court chooses to conduct
is within the district court's discretion; it may hold a formal
evidentiary hearing, but depending on the circumstances, such a
hearing may not be required." Id. (citing Zimny, 846 F.3d at 465);
see also United States v. French, 977 F.3d 114, 122 (1st Cir. 2020)
(French II) (referring to a "formal evidentiary hearing" as "the
gold standard for an inquiry into alleged juror misconduct" but
reaffirming that "a full evidentiary proceeding in response to an
allegation of juror bias" is "not required")). "[T]he court's
primary obligation is to fashion a responsible procedure for
ascertaining whether misconduct actually occurred and if so, - 65 -
whether it was prejudicial." French I, 904 F.3d at 117 (quoting
Zimny, 846 F.3d at 465).
So long as the district judge erects, and employs, a
suitable framework for investigating the allegation and
gauging its effects, and thereafter spells out her
findings with adequate specificity to permit informed
appellate review, the court's "determination . . .
deserves great respect and . . . should not be disturbed
in the absence of a patent abuse of discretion."
French II, 977 F.3d at 122 (brackets omitted) (quoting United
States v. Boylan, 898 F.2d 230, 258 (1st Cir. 1990)).
Notes from jurors
(Idalia, Juan, Carlos, Joel)
Idalia argues that two notes from the jury sent to the
judge during trial make evident she did not receive a fair trial
because these notes showed juror bias and the trial judge did not
adequately examine or consider these bias indicators when brought
to her attention.27 We'll start by telling you what these notes
were about and how the trial judge responded to them.
A couple of weeks into the trial, the judge received a
note from one juror, who wrote that she felt "uncomfortable with
27 Joel, Carlos, and Juan also mention these jury notes in
their briefs as part of their broader arguments about the ways in
which they claim they were denied a fair trial, but other than
asserting the trial judge failed to adequately inquire and/or
examine the extent of the jurors' prejudice against them, they do
not develop their argument as much as Idalia, so we focus on her
take of this issue. In fact, Carlos and Juan do not provide any
argument about why these notes or the trial judge's manner of
addressing them should disturb the guilty verdicts against them,
so they have waived this particular issue. - 66 -
the intimidating looks" from Joel's attorney and Carlos's
attorney. Idalia's attorney asked the trial judge to excuse this
juror, which the judge declined to do, explaining it would be like
punishing the juror for bringing a concern to the attention of the
court. The judge discussed how to phrase the response to the juror
with the attorneys but stated she would not hold a hearing to ask
the juror whether the juror had shared the concerns with other
jurors or whether the juror's concerns were affecting the
evaluation of the evidence unless the same concern was raised
again. The judge provided the attorneys with an opportunity to
object to the wording of her response, but after the attorneys
spoke with their respective clients about the proposed response,
everyone agreed to the trial judge's wording without further ado.
The response returned to the juror read:
I have received your note and discussed it with counsel.
Regarding atty. Milanés and atty Burgos their response
to your note is that they meant no disrespect to you and
neither had nor have any intention to intimidate you.
If there is any instance in which you need to address
the court, feel free to do that.
There was a brief discussion about whether to admonish
the juror not to discuss this concern with any other juror, but
the trial judge decided she did not want to assume the juror had
already spoken about it and did not want to discourage bringing
these kinds of concerns to the court's attention. The trial judge - 67 -
also reminded Joel's attorney not to look at the jury when he
questioned witnesses, as had apparently been his trend so far.
The trial judge received the second note at issue at the
end of the first day of closing arguments after the court session
had ended. The jury had collectively sent a note asking if the
judge could ensure they left the courthouse before the defendants
and the defendants' family members "in order to avoid any
encounters which are occurring on a daily basis." The trial judge
responded to the note asking the jury to "advise to which
defendants you are referring to when you mention encounters that
are occurring on a daily basis." The jury replied it was referring
to Suanette and Idalia and their family members. When the trial
judge discussed the notes with counsel, Idalia's attorney
expressed concern that this note meant the jury was biased against
the defendants. She did not, however, request a hearing to further
explore the jurors' request. The trial judge remarked that counsel
was reading more into the note than what the jury had actually
written and reminded all the attorneys that their clients were
entitled to a fair trial but not a perfect one. The trial then
continued with closing arguments.
Idalia filed a written motion for reconsideration, again
expressing her concern about the ability of the jury to be
impartial and asking the trial judge to conduct further inquiry
into the jury note. And depending on how the jurors responded, - 68 -
Idalia sought to poll each juror to assess whether anyone's
impartiality had been compromised. The judge denied the motion in
a written order, stating the jury had not referred to any specific
incidents with the defendants and had simply asked to be allowed
to leave the courthouse at the end of the day ahead of the
defendants. The judge wrote: "There is no reason to read into
this request the concerns of bias and lack of impartiality by the
jurors that the two defendants are injecting into it. Nor have
jurors voiced any concerns for their safety whatsoever."
On appeal, Idalia states the trial judge abused her
discretion by not conducting a deeper inquiry into the jury's
concerns expressed in these two notes, resulting in a verdict
against her rendered by a partial jury. The government counters
that the trial judge responded appropriately to each note. As for
the note about the intimidating looks from two attorneys, the
government is skeptical that the note could have implied any
prejudice to Idalia because, importantly, her attorney wasn't one
of the two mentioned. With respect to the note requesting a head
start out of the building at the end of each day, the government
argues the trial judge responded promptly to find out to which
defendants the note referred and that Idalia has not provided any
reason to doubt the judge's conclusion that the jury had not been
tainted by their encounters with Idalia and Suanette as they left
the building.- 69 -
We agree with the government that there is no indication
the trial judge abused her discretion when she denied Idalia's
requests for hearings to further inquire about the two notes
submitted by the jury.28 See French I, 904 F.3d at 117. The record
shows the trial judge brought the jury's respective concerns to
the defendants as soon as was possible, carefully considered the
best response, and allowed the defendants and their counsel to
assist with the responses. Given the trial judge's wide discretion
to decide how to investigate a defendant's concerns about jury
bias, we conclude her response to the defendants' concerns was
both reasonable and appropriately measured. We espy no error and
move on to the next argument about jury bias.
Basketball
(Joel)
Two months into trial, one of the jurors submitted a
written note to the trial judge, telling her he recognized a
witness who had testified the day before as one of the men with
whom he played in the same regular pick-up basketball games. The
juror wrote the note to bring his recognition of the witness to
the trial judge's attention and to raise a concern that other
28 The government makes no waiver argument as to either note
so we proceed to resolve these juror note issues on the merits.- 70 -
players in the basketball league may be witnesses because he
understood many of the players were involved in law enforcement.
The trial judge brought the juror into the courtroom to
explore on the record this juror's connection to the witness. In
response to the trial judge's questions, he indicated he'd been
playing in this over-35 league for about a year. Twice a week or
so he showed up at the court -- located behind the police station
in Trujillo Alto -- and played with and against whomever else
showed up that night as well. The juror told the trial judge he'd
played with this witness five to ten times total but didn't know
him personally and had never discussed this case with him or any
other police officer. The juror hadn't recognized the witness's
name when it was read as a part of a list of witnesses during voir
dire because, as he told the judge, he didn't know any of the other
players personally and couldn't provide anyone's full name. When
the witness in question took the stand the day before, however,
the juror recognized him. He didn't alert the court immediately
because he didn't know how to do so during open court. Instead,
he told the court security officer at the end of the day who
suggested the juror write the note that made its way to the trial
judge.
The trial judge concluded neither the juror nor the
witness engaged in any misconduct and the juror had an adequate
explanation about how he brought the issue to the trial judge's - 71 -
attention. The trial judge denied the defendants' request to
excuse the juror because she concluded the proper remedy was to
instruct the juror not to play basketball with this group until
the trial was over rather than dismiss him from the jury.
The next day, the judge called the juror back for another
conversation at the bench. She asked the juror whether he would
give more weight or credibility to the police officer's testimony
because they had played basketball together. The juror said no
because he doesn't know anything about the witness other than what
he had seen on the basketball court and had no reason to give more
weight to his testimony than to another witness based on the
experiences on the basketball court. Following this exchange, the
juror departed the courtroom and the trial judge invited further
comment from all counsel. The prosecutor declined and counsel for
Joel, Carlos, and Juan raised no additional demur.
Now before us, Joel argues the trial judge abused her
discretion by refusing to dismiss this juror. Joel says the
juror's "failure to inform" the court that he played basketball
with police officers "reflected bias in favo[r] of the police with
whom he played every week."29
29 Carlos states in his brief that he joins Joel's argument
on this issue, but he does not provide any independent or
additional argument. We pause for a moment to remind the
defendants -- many of whom joined in various arguments by their
codefendants -- that they cannot simply state a blanket intention
to join another's argument and leave it at that. Adoption by- 72 -
The government argues the trial judge did not abuse her
discretion when she denied the defendants' request to dismiss the
juror because the issue was brought promptly to her attention, she
conducted an in-depth inquiry into the connection between the juror
and the witness, and appropriately concluded the juror was not
biased by his "casual" connection to this witness.
We can agree with Joel on one point: a "juror's
interpersonal relationships" are an important factor to consider.
But this situation is a far cry from the case Joel cites in support
of his argument. In French I, a defense counsel learned after the
conviction and sentencing of his client for marijuana production
and distribution conspiracy that one of the jurors had lied on her
jury questionnaire and during voir dire when she had not disclosed
that her son had been convicted a few times of offenses related to
his use and distribution of marijuana and cocaine. 904 F.3d at
114-15. The trial judge denied the codefendants' motion for a new
reference can be a risky move because it is well-known that it
"cannot occur in a vacuum and the arguments must actually be
transferable from the proponent's to the adopter's case." United
States v. Brown, 669 F.3d 10, 16 n.5 (1st Cir. 2012) (citing Casas,
425 F.3d at 30 n.2). A statement of intention to join another's
argument without providing any independent argument about the
issue whatsoever will often result in waiver. See id.
Juan, for his part, includes this incident as part of a list
of reasons why he did not receive a fair trial from an impartial
jury but doesn't provide any developed argument around this
incident in particular.
Both Carlos and Juan have therefore waived this particular
issue. See id.; Chan, 981 F.3d at 50 n.4.- 73 -
trial and request for an evidentiary hearing, but we reversed and
remanded after holding that an investigation into the juror's
misconduct had been warranted. Id. at 116, 120. The defendants
appealed again when upon remand the judge again denied their motion
for a new trial following an evidentiary hearing to determine
whether the juror had in fact engaged in misconduct and whether
the misconduct, if any, was prejudicial to the defendant. French
II, 977 F.3d at 121-22. We affirmed the district court's denial,
rejecting the defendants' arguments that the court's investigation
had not been thorough or structured enough. Id. at 122. We also
stated that "'[t]he touchstone' of our appellate review is
'reasonableness.'" Id. at 122 (quoting United States v. PaniaguaRamos, 251 F.3d 242, 249 (1st Cir. 2001)).
Here, the juror's misconduct, as the defendants see it,
was not disclosing his basketball-playing activities and not
recognizing the name of one of the witnesses as one of the players
who plays in the informal, pick-up basketball games during voir
dire. But after the juror notified the trial judge that he had
recognized the witness on the stand, the trial judge immediately
questioned the juror, at length, twice. The trial judge was
reasonably satisfied that the juror credibly denied having any
personal relationship with the witness, and that he had not
intentionally misled the court during voir dire. Also reasonable
was the trial judge's determination that the juror was not going - 74 -
to favor the witness's testimony because of the time he had spent
with the witness playing basketball. The trial judge's actions
and decisions here do not reflect any abuse in her exercise of the
wide discretion she had to decide how to investigate a claim of
juror misconduct. See French I, 904 F.3d at 117.
Next up: the third and final claim of jury bias.
Knowing some defendants were detained
(Joel & Carlos)
Three times during the trial, the defendants raised
concerns to the trial judge that the jurors had either seen them
in handcuffs or deduced some of them were detained pending the
outcome of the trial based on a newspaper article published during
the trial. We describe each incident before getting into the
arguments Joel and Carlos make about why the trial judge didn't
address each appropriately.
Incident number 1 - whether some jurors saw some
defendants handcuffed in the courthouse elevator: one mid-trial
day (in September 2015), as the jurors left the courtroom, they
may have caught sight of some defendants, in handcuffs, in an
elevator on their way to the courthouse cell block. The defendants
asked the trial judge to ask the jurors about what they saw and to
declare a mistrial if warranted. The judge ultimately did not
question the jurors, but she held an evidentiary hearing at which
she heard testimony from four of the defendants about this- 75 -
encounter and she considered video evidence from the courthouse
hallways which captured the juror's movements with respect to the
defendants' positions in the elevator.
After the hearing, the trial judge determined that if
any of the jurors saw the defendants in handcuffs, it was for a
brief moment only and, regardless, "none of the jurors exchanged
looks with the defendants." She concluded the encounter did not
warrant a mistrial because this was not a happenstance in which
the jurors had seen the defendants shackled or gagged. She
compared the quick glance one juror made in the direction of the
elevator (which she observed in the video) to the quick glimpses
the jurors had caught in United States v. Ayres, in which we held
that a "quick glimpse once or twice of the defendants in handcuffs
out of court . . . would hardly dilute their presumption of
innocence" because a moment's view of defendants in handcuffs is
far different from cases in which the jurors saw a defendant
shackled for longer periods of time or were "repeatedly reminded
of the defendants' confinement." 725 F.2d 806, 812-13 (1st Cir.
1984).
Incident number 2 - whether some jurors saw defendants
handcuffed in the courtroom: near the end of trial (in December
2015), during a lunchtime recess, the courtroom door was ajar for
some moments when a trial spectator left the courtroom while some
defendants were in handcuffs in the courtroom and the jury was - 76 -
walking in the hallway past the courtroom door. The defendants
requested a mistrial. The trial judge held a hearing, heard the
defendants' versions of events, considered courtroom security
video footage, then concluded none of the jurors could have seen
inside the courtroom for more than "a matter of seconds" and "[n]o
reasonable minded person who view[ed] the videos in an impartial
manner could conclude" the jurors saw the defendants handcuffed.
The defendants also tried to provide the trial judge with
photographic and videographic evidence that purported to reenact
the scene, but the trial judge refused to consider these
reenactments and ultimately denied the motion for mistrial.
Incident number 3 - whether the jurors read a newspaper
article from which they might have deduced some of the defendants
in their trial were detained: also towards the end of trial, an
article published in a local newspaper disclosed that two drug
trials had been suspended by the court for a few days after a
gastroenteritis virus started spreading through the detention
center where many defendants in those trials were being held. Joel
and Carlos filed a motion for a hearing to determine whether a
mistrial would be required and asked that the trial judge poll the
jurors to find out whether they had seen the article and inferred
from it that Joel and Carlos were two of the defendants referred
to in the article. The judge denied the motion because the article
had not named the cases or the defendants involved, rendering Joel - 77 -
and Carlos's concerns too speculative. She also commented that
Joel and Carlos's concern over the potential release of their
identities was not completely credible because they had filed a
motion two days later on the public docket of their case
complaining about the conditions of the detention center in which
they were being held. The trial judge also distinguished a juror's
knowledge of a defendant's detention from a juror seeing a
defendant shackled and handcuffed in a courtroom, which she
concluded had not occurred.
The denial of a motion for mistrial is reviewed for abuse
of discretion. Gonsalves, 859 F.3d at 107. As we indicated above,
"[c]onducting an inquiry into a colorable question of jury taint
is a delicate matter, and there is no pat procedure for such an
inquiry." United States v. Bradshaw, 281 F.3d 278, 290 (1st Cir.
2002) (citing Evans v. Young, 854 F.2d 1081, 1083–84 (7th Cir.
1988)). "[T]he trial court has wide discretion to fashion an
appropriate procedure for assessing whether the jury has been
exposed to substantively damaging information, and if so, whether
cognizable prejudice is an inevitable and ineradicable concomitant
of that exposure." Id.
Joel and Carlos argue to us that the trial judge was
wrong not to ask the jurors whether they saw defendants handcuffed
and, if so, what and who they saw, as well as whether they had - 78 -
seen the newspaper article.30 We note, however, that, in response
to both courthouse incidents, the trial judge conducted an
evidentiary hearing to investigate whether the jury could have
seen or did see the defendants in handcuffs. This, as we earlier
noted, is "the gold standard" for an inquiry into an incident that
could create or lead to juror bias. French II, 977 F.3d at 122.
While the trial judge did not bring jurors in to question them,
she did consider testimony from the defendants as well as
photographs and/or video footage from courthouse security cameras
and provided detailed written summaries about what the defendants
told her during the hearing and what she found after reviewing the
videos.
The defendants do not claim the trial judge was clearly
wrong with any of her factual determinations after the hearings -
- the standard of review we would apply to her findings. See
Bradshaw, 281 F.3d at 291 ("[W]e accept the trial court's factual
findings only to the extent that they are not clearly erroneous."
(citation omitted)). Instead, they insist she needed to make a
30 Idalia also mentions, in a footnote, the defendants'
collective request for a mistrial after members of the jury saw
the defendants in handcuffs, which the trial judge denied. Idalia
does not make any argument that the denial of the motion for
mistrial was in error, so we will not undertake a review of this
ruling on her behalf. Juan, for his part, also lumps these events
into his list of reasons why he did not receive a fair trial from
an impartial jury but once again doesn't provide any developed
argument around this incident in particular.- 79 -
direct inquiry to the jurors to find out what they saw. The
government counters that she conducted an appropriate inquiry into
these two incidents and her findings are unassailable.
True, the trial judge, in her written orders explaining
the denial of the motions for mistrial, did not expressly address
the defendants' requests to question the members of the jury.
However, her written "statements of reasons" indicate and
demonstrate her detailed consideration about whether the jurors
could have seen the defendants during the two incidents. In other
words, she answered the question of whether the jury had possibly
viewed the defendants in cuffs another way. That she did not bring
jurors in for questioning was not an abuse of her discretion to
determine how to investigate these possible sources of bias. See
Bradshaw, 281 F.3d at 290.31
Turning our attention briefly to the newspaper article,
the trial judge also did not err by choosing not to ask the jurors
about whether they had read it. As the government argues, if the
jurors read the article, then, at worst, they may have inferred
that a defendant in this trial was being detained, but mere
awareness that one or more defendants were detained during the
31 To be sure, "[c]are should be taken whenever reasonably
possible to prevent the jurors from viewing a defendant handcuffed
while the defendant is on trial. In the absence of a showing of
prejudice, however, a fleeting glance by jurors of a defendant
outside the courtroom in handcuffs does not justify a new trial."
Ayres, 725 F.2d at 813.- 80 -
trial is not sufficiently prejudicial to require a mistrial. See
Ayres, 725 F.2d at 812-13; see also United States v. Deandrade,
600 F.3d 115, 119 (2d Cir. 2010) ("[A] brief and fleeting comment
on the defendant's incarceration during trial, without more, does
not impair the presumption of innocence to such an extent that a
mistrial is required."). Asking the jurors one-by-one whether
they saw it would have only served to tip them off that the article
existed.
All in all, there was no hint the trial judge abused her
discretion when she investigated and addressed the defendants'
various jury bias concerns.
Judicial Bias
(Joel & Carlos)
We now turn our attention to whether the trial judge
showed bias against some of the defendants' trial attorneys.
Several times throughout the trial, the judge admonished some of
the defense counsel's behavior in open court, whether for laughing,
talking, or otherwise disrupting or interrupting the proceedings.
Several times, counsel brought concerns to the court that she was
treating them differently than the government's attorneys to the
detriment of the defendants. Joel and Carlos now contend her bias
toward their trial attorneys resulted in an unfair trial.
For example, in September 2014, Carlos's trial counsel
filed a miscellaneous motion asking the trial judge to note his - 81 -
concern that her tone and demeanor (including facial expressions
and looks reflecting "impatience, annoyance, and ire") with and
towards him was markedly different from the way she treated the
government's attorneys and could be interpreted by the jury as
"animosity" against the defense. The trial judge noted counsel's
"subjective perceptions" and concern in a written order entered on
the docket stating she had needed to address the defense attorneys'
"courtroom manners" outside the presence of the jury and repeating
that she had had "no issues" with the defendants' courtroom
behavior. When the trial judge read her order into the record,
she added:
And I reaffirm, I have absolutely no partiality toward
the Government or the defendants. I have said the
defendants have always displayed utmost respect. They
have been exemplary in their behavior. Unfortunately,
their attorneys do not show the same respect for the
[c]ourt that their clients do. When you measure up to
them, you won't need this, you won't need this kind of
statement from the [c]ourt. It is not the defendants;
it is you.
A second example is from January 2015, when Carlos's
trial counsel again raised a concern that the trial judge was
treating him differently from the government's attorneys and asked
her to declare a mistrial because her "rebuking tone, menacing
looks and accompanying body language" towards him were not looked
on favorably by the jury. In the alternative, Carlos's counsel
asked the judge to "refrain[] from engaging defense attorneys in
that tone, with that body language, and that sort of look[]." The - 82 -
trial judge denied the oral motion, commenting that she had been
working hard to ensure the trial was fair to the defendants but
that some of the defendants' attorney's behavior had been less
than exemplary. The trial judge stated she had no bias against
any of the defendants and was explaining each of her evidentiary
rulings in detail so that all the parties understood the decisions
she was making throughout the trial.
A third example occurred in February 2015, when, in the
middle of testimony on direct examination from a law enforcement
officer, the trial judge said "Mr. Burgos" (Carlos's trial
counsel's name) twice to get him to stop whatever he was doing at
counsel table at the time. The testifying officer subsequently,
and outside of the jury's presence, accused Mr. Burgos of making
a disparaging remark -- calling the officer "smartass" while he
was testifying. Mr. Burgos admitted to conferring with co-counsel
during the witness's testimony but categorically denied making any
remarks towards the witness. The trial judge took Mr. Burgos at
his word but warned him that she would take further action if any
other witnesses made a similar complaint about his courtroom
behavior.
The trial transcripts are replete with examples of the
trial judge commenting on Mr. Burgos's behavior. Several times
throughout witness testimony, hearings held to address issues
which arose during trial, and during bench conferences, the trial - 83 -
judge asked Mr. Burgos (in addition to other attorneys) to stop
laughing or otherwise disrupting what she and others were trying
to listen to.
Before us, Carlos argues that the trial judge repeatedly
mistreated Mr. Burgos in front of the jury, discrediting him
several times throughout the trial, which served to deprive his
client of a fair trial. Joel, who likewise voices fair trial
concerns, acknowledges that, using the cold appellate record, it
is hard to show the way in which the trial judge's looks and tone
toward Mr. Burgos and some of the other attorneys prejudiced the
defendants, but also argues the judge's attitude towards Mr. Burgos
was clearly noted by the jury, which created prejudice against the
defendants.
"When addressing allegations of judicial bias, we
consider 'whether the comments were improper and, if so, whether
the complaining party can show serious prejudice.'" United States
v. Ayala-Vazquez, 751 F.3d 1, 24 (1st Cir. 2014) (quoting
DeCologero, 530 F.3d at 56). "[W]e consider isolated incidents in
light of the entire transcript so as to guard against magnification
on appeal of instances which were of little importance in their
setting." United States v. Espinal-Almeida, 699 F.3d 588, 607
(1st Cir. 2012) (brackets omitted) (quoting United States v. OfrayCampos, 534 F.3d 1, 33 (1st Cir. 2008)). "Clearly a trial judge
should be fair and impartial in her comments during a jury trial - 84 -
because a fair trial in a fair tribunal is a basic requirement of
due process." Id. (citing United States v. de la Cruz–Paulino, 61
F.3d 986, 997 (1st Cir. 1995)). "However, a finding of partiality
should be reached only from an abiding impression left from a
reading of the entire record." Id. (quoting de la Cruz-Paulino,
61 F.3d at 997). "And even an imperfect trial is not necessarily
an unfair trial." Ayala-Vazquez, 751 F.3d at 24 (citing Espinal–
Almeida, 699 F.3d at 608).
"As a general rule, a judge's mid-trial remarks critical
of counsel are insufficient to sustain a claim of judicial bias or
partiality against the client." Logue v. Dore, 103 F.3d 1040,
1046 (1st Cir. 1997) (citing Liteky v. United States, 510 U.S.
540, 555 (1994)). As in Logue, the comments and demeanor the
defendants complain of here were interspersed throughout the
trial, sometimes at sidebar or when the jury was not in the room
and sometimes in the presence of the jury. "Statements that are
made by a judge in the jury's presence are, of course, subjected
to stricter scrutiny." Id. There were clearly several incidents
where the trial judge admonished Mr. Burgos, both in and out of
the presence of the jury. The incidents described above illustrate
Carlos and Joel's general concerns. The record is clear that there
was no love lost between Mr. Burgos and the trial judge. But, as
the government points out, the direct reprimands and discussions
regarding Mr. Burgos's courtroom behavior were mostly conducted - 85 -
outside the presence of the jury. We further note that this is
not a situation in which the trial judge impermissibly hijacked
witness questioning or made inappropriate commentary about any
defendant or vouched for a witness's credibility. See United
States v. Raymundí-Hernández, 984 F.3d 127, 152-57 (1st Cir. 2020)
(reversing convictions because the trial judge's comments during
trial and sua sponte cross-examination-like questioning of a key
defense witness indicated a pro-prosecution bias and likely
affected the outcome of the trial). Lastly, after reviewing the
trial transcripts, we note that some of the trial judge's
admonitions to Mr. Burgos may well have been justified by his
courtroom behavior.
To the extent any of the trial judge's demeanor or
commentary may have come close to crossing the line, we observe
that her end-of-trial instructions to the jury addressed her
reproaches to counsel:
It is the duty of the [c]ourt to admonish an attorney,
members of the jury, who out of zeal for his or her
cause, does something which the [c]ourt deems is not in
keeping with the rules of evidence or with the rules of
procedure. You are to draw no inference against the
party represented by an attorney to whom an admonish
[sic] of the [c]ourt was addressed during the trial of
this case.
The government argues that if the jury perceived any animosity, it
was cured by the trial judge's instruction to the jury. We agree.
"In assessing the impact of a judge's actions, jury - 86 -
instructions can be a means of allaying potential prejudice."
Logue, 103 F.3d at 1046-47. In our view, this instruction was
"sufficient to palliate any untoward effects" from the trial
judge's words, tone, or demeanor towards defendants' attorneys
throughout the trial. Id. at 1047.
Examining the record as a whole, we conclude that the
judge's statements on the record and demeanor in the courtroom did
not indicate judicial partiality against the defendants or in favor
of the government and "did not compromise the fundamental fairness
of the proceedings." Logue, 103 F.3d at 1046; see also United
States v. Rodríguez-Rivera, 473 F.3d 21, 28 (1st Cir. 2007).
Prosecutors' tactics
(Joel & Carlos)
Joel (joined by Carlos) asserts the prosecutors engaged
in several improper tactics throughout the trial, all of which (in
their view) add to the pile of reasons how and why their trial was
ultimately unfair. The government treats their arguments as
alleging prosecutorial misconduct and while neither defendant
specifically frames this issue in those precise terms, we agree
that we should address the arguments using our well-established
framework for reviewing claims of prosecutor misconduct. "We
review preserved claims de novo and unpreserved claims for plain
error." United States v. Rosario-Pérez, 957 F.3d 277, 299 (1st
Cir. 2020) (citing United States v. Sepúlveda-Hernández, 752 F.3d - 87 -
22, 31 (1st Cir. 2014)). "Either way, we may first consider
whether the government's conduct was, in fact, improper." Id.
(citing United States v. Duval, 496 F.3d 64, 78 (1st Cir. 2007)).
"If so, we will only reverse if the misconduct 'so poisoned the
well that the trial's outcome was likely affected.'" Id. (quoting
United States v. Vázquez-Larrauri, 778 F.3d 276, 283 (1st Cir.
2015)). "Four factors guide our analysis: (1) the severity of
the prosecutor's misconduct, including whether it was deliberate
or accidental; (2) the context in which the misconduct occurred;
(3) whether the judge gave curative instructions and the likely
effect of such instructions; and (4) the strength of the evidence
against the defendant." Id. (quoting Vázquez-Larrauri, 778 F.3d
at 283).
We briefly summarize the ways in which Joel and Carlos
assert the prosecutors misbehaved throughout the trial. We also
provide the government's explanation about why and how each
instance did not actually amount to misconduct by the prosecutors
in this case. To cut to the chase, our examination of each incident
alleged by Joel and Carlos has not uncovered any misconduct on the
part of the prosecutors. Here's what's alleged:
• Allowing Sergeant Rivera to testify about the drug
distribution activities of two codefendants who were not part
of the trial when this witness did not have personal knowledge
about these activities and was relying on what others had
told him. As the government points out (and the trial
transcripts confirm), the basis for this witness's knowledge
was revealed while he was on the stand and the prosecutor - 88 -
admitted she was mistaken by her belief that he'd had personal
knowledge about the activities of the two codefendants in
question. In addition, the trial judge struck the testimony
and instructed the jury that they were to disregard it.
• Speaking with Sergeant Rivera mid-testimony and refusing to
turn over the reports from his interviews with the defendants
so Joel wouldn't have the benefit of these reports to prepare
his cross-examination. The government's misunderstanding
regarding the trial judge's order not to meet with witnesses
once their testimony had begun has already been examined
supra. In response to Joel's accusation that the government
withheld Rivera's reports from various interviews with
witnesses, the government asserts the record clearly reflects
that the reports Joel sought either did not exist because
Rivera had not written them, or Joel acknowledged he had
ultimately received the report. As the government argues,
there is no indication of prosecutorial misconduct here
either because the government complied with all the discovery
orders.
• Referring to Joel as the operator of the drug trafficking
organization with a few different witnesses. The government
asserts -- and the trial transcripts show -- either the
witness volunteered Joel's role as part of an answer to a
question, the witness was testifying to Joel's own
description of his role, or the prosecutor's question
implying Joel was a leader was posed during the grand jury
proceedings and only came out during the trial through proper
memory refreshing for the particular witness. The government
also shows us where the jury heard unchallenged testimony
several times from witnesses that Joel was the leader of the
enterprise.
• Asking CW Ferrer during re-direct examination about other
defendants who had pled guilty. The government argues there
was no misconduct when the government asked CW Ferrer about
whether another codefendant had pled guilty because Joel had
introduced this series of questions when, during his crossexamination, he started inquiring about how much jail time
Ferrer had received upon his own guilty plea and whether other
codefendants had also simply been sentenced to time served.
As we previewed above, our review of the record reveals each of
these claims "lack[s] arguable merit" because none shows actual - 89 -
prosecutorial misconduct. See Rosario-Pérez, 957 F.3d at 299.
So, we do not explore them any further.32
32 There are two more "unfair trial" arguments to bring to the
reader's attention, each relegated to this footnote because
neither is sufficiently developed for our review. First, Carlos
says he was unfairly disadvantaged during trial by not having
access to daily trial transcripts. He asserts the trial might
have been shorter if he and his codefendants had access to daily
transcripts because the length of the bench conferences and
arguments over specific testimony would have been shorter if they
had been able to consult the transcripts of the testimony they
were arguing over. During the trial, the judge granted a motion
filed by Suanette -- joined by Carlos and other defendants -- for
access to the transcripts the government had already ordered.
Carlos asserts she gave him and his codefendants a hard time about
their request for transcripts but there is no indication in the
briefing or the discussion about Suanette's motion that the trial
judge denied a request for daily transcripts. And Carlos
acknowledges that indigent defendants are not automatically
entitled to free daily transcripts. See 18 U.S.C. § 3006A.
Instead, Carlos states that, in order to mount an "adequate
defense," daily transcripts should be one of the entitlements
included within a defendant's constitutional rights. In the
absence of a developed record or argument, however, all we can do
is acknowledge this was one of the ways in which Carlos says there
were cumulative errors in his trial requiring reversal and a
combination of errors depriving him of a fair trial.
Second, Juan mentions "inhumane conditions" several times
throughout the factual and procedural summary in his brief,
mentioning the times he was feeling ill or was sleep deprived or
had inadequate food, but he does not tie these claims to any of
his arguments about how he was denied a fair trial or how or why
these events would be a reason to vacate his convictions or warrant
a new trial. Carlos, in his brief, states that he "adopts" Juan's
claims about "the documented and debilitating conditions of
confinement" but also does not develop any argument on this topic.
As the government asserts in response, these claims are therefore
waived. See Chan, 981 F.3d at 50 n.4.- 90 -
Cumulative error
(Joel, Carlos, Juan)
Joel, Carlos, and Juan also argue that the combined
effect of the errors they say were made during trial (including
the purported evidentiary errors and the ways in which they claim
they were denied a fair trial) leads to the inescapable conclusion
that they are entitled to a new trial. Joel's list of errors he
claims add up to cumulative error include jury bias, judicial bias,
improper prosecutorial tactics, evidentiary errors, and the denial
of the motion to suppress the gun found in his father's car. Juan
says the cumulative effect of the evidentiary errors he raised in
addition to the list of ways he asserts (without explaining why)
he was denied a fair trial will justify setting aside his
convictions. Carlos, for his part, asserts the combination of the
trial errors, including those related to jury bias, judicial bias,
improper prosecutor tactics, evidentiary errors, and insufficient
access to transcripts all deprived him of a fair trial.
When we are presented with a cumulative error argument,
"[w]e review the rulings for abuse of discretion before deciding
what cumulative effect any errors may have had." United States v.
Centeno-González, 989 F.3d 36, 50 (1st Cir. 2021) (quoting United
States v. Perez-Montañez, 202 F.3d 434, 439 (1st Cir. 2000)). "In
doing so, we 'must consider each such claim against the background
of the case as a whole, paying particular weight to factors such - 91 -
as the nature and number of the errors committed; their
interrelationship, if any . . . ; and the strength of the
government's case.'" Id. (ellipsis in original) (quoting
Sepulveda, 15 F.3d at 1196). Joel, Carlos, and Juan's cumulative
error claims fail because we have not found any errors in any of
the ways they contend they were denied a fair trial and the one
potential evidentiary error (admitting the handwritten notations
on the North Sight Communications business records) was harmless.
See id. at 50.
And with that, we move on to the evidentiary sufficiency
arguments.
SUFFICIENCY OF THE EVIDENCE
Suanette and Juan each argue they were entitled to
judgments of acquittal on all the counts with which they were
charged. Recall Suanette was convicted of conspiracy to distribute
narcotics as a seller and a facilitator as well as of aiding and
abetting the distribution of marijuana. Juan was charged with and
convicted of two conspiracy counts (to distribute narcotics in the
role of a "runner" and to possess firearms in furtherance of drug
trafficking) and four aiding-and-abetting-drug-distribution
counts (heroin, crack cocaine, powder cocaine, and marijuana).
Both defendants moved for judgments of acquittal at the end of the
government's presentation of evidence and again at the end of all - 92 -
the defendants' presentations of evidence. The trial judge denied
both motions.
"Because the defendants made the same arguments before
the district court (therefore preserving this legal issue for our
review), our task is to consider afresh their arguments about why
they say they are entitled to judgments of acquittal." United
States v. Chan, 981 F.3d 39, 51 (1st Cir. 2020). "That is, we
give no deference to the district court's assessment of the same
arguments when it evaluated the defendants' motions for judgments
of acquittal." Id. "To complete our review, we 'consider all the
evidence, direct and circumstantial, in the light most favorable
to the prosecution, draw all reasonable inferences consistent with
the verdict, and avoid credibility judgments, to determine whether
a rational jury could have found the defendants guilty beyond a
reasonable doubt.'" Id. at 55 (cleaned up) (quoting United States
v. Negrón-Sostre, 790 F.3d 295, 307 (1st Cir. 2015)). If we agree
with the defendants that the trial judge erred when she denied
their motions for judgments of acquittal, then we must order
acquittal. Montijo-Maysonet, 974 F.3d at 41
("[T]he Double Jeopardy Clause precludes a second trial once the
reviewing court has found the evidence legally insufficient."
(quoting Burks v. United States, 437 U.S. 1, 18 (1978))).33
33 We would usually tackle the sufficiency-of-the-evidence
arguments at the front end of our opinion because successful - 93 -
Suanette's and Juan's primary involvement in the drug
trafficking organization were in two separate locations and the
evidence of their respective roles came from different witnesses.
So we'll address their challenges to the sufficiency of the
evidence to support their convictions separately.
Suanette's convictions
The testimony about Suanette's involvement in the drug
trafficking organization came from two of the CWs we've encountered
already: Lopez and Vega.34 They each testified about their
personal observations of Suanette providing sellers within the
organization with baggies of marijuana as well as working sideby-side with her husband and codefendant Carlitos. CW Lopez
testified that he was a drug addict who bought and sold marijuana
and cocaine at the Villa Margarita "curve" on Amapola Street. In
2005 or 2006, CW Lopez watched the drug distribution hierarchy and
process while he built a fence for Carlos (the defendant on appeal
before us). Lopez
could see the sellers when [Carlos] would give them their
shifts, when he would give them material to sell. . . .
sufficiency challenges have double jeopardy implications, see
Montijo-Maysonet, 974 F.3d at 41, but we cover these claims of
error here in chronological order to the phase in which the trial
judge ruled on these motions because only two of the five
defendants raised these arguments before us and because we affirm
the trial judge's denial of the motions for judgments of acquittal.
34 A quick reminder that we are now reciting "our summary of
the facts in the light most favorable to the jury's verdict."
Chan, 981 F.3d at 45 (citing Charriez-Rolón, 923 F.3d at 47).- 94 -
[W]hen they finished working, they could come to the
area in front of his house to do the tally, they would
go to the carport in Joel's house, and there they would
tally up. And anything regarding the drug point, well,
[Carlos] was the man.
After CW Lopez finished building the fence, he became a lookout
for the curve drug point, a "runner" (according to Lopez, that's
someone who picked up money from clients, bought the drugs, then
delivered the drugs back to the clients),35 a direct seller, and a
buyer. CW Lopez described the recharge process: when a seller
ran low on product (whether heroin, cocaine, or marijuana), the
seller would ask for a "recharge" through a handheld radio.
Carlitos resupplied marijuana. CW Lopez testified he bought
marijuana from Suanette at the drug point in Villa Margarita on
Amapola Street from 2007 to 2008. According to CW Lopez, he did
not observe Suanette resupply marijuana to the drug point, but
"[she] always accompanied Carlitos when he was selling and she
collected the money. If you went to buy, she would be the one
collecting the money."
CW Vega testified he worked as a seller for the drug
organization and sold marijuana from the abandoned house at the
"curve." CW Vega often saw Carlitos in a truck and sometimes saw
Suanette drive the same truck, especially when CW Vega had radioed
Carlitos about needing to be resupplied because she often delivered
35 Other folks add additional responsibilities to this
"runner" job description, as we'll touch on later.- 95 -
the next batch of marijuana in that truck after Joel had called CW
Vega to tell him the new inventory was on its way. CW Vega said
Suanette delivered around 80 baggies of marijuana around 7:30 a.m.
four times a week in 2007 and the beginning of 2008. CW Vega also
testified he did not see Suanette sell marijuana to customers at
the drug point, but he paid her for the resupply by handing money
to the lookout on duty who gave the money to Suanette.
The trial judge denied Suanette's first motion for
judgment of acquittal in a written order, explaining that
Suanette's assistance to her husband Carlitos at the drug point,
her interaction as seller to CW Lopez, and her role as resupplier
for Vega was enough to show she was "part of the organized
structure and coordination of the drug point and that she worked
with and assisted these other defendants in the possession with
intent to distribute all types of drugs sold." After the jury
rendered its verdict on January 5, 2016, Suanette filed a written
Rule 29 motion for a judgment of acquittal which the trial judge
denied without explanation.
On appeal, Suanette argues the government failed to
prove she either conspired to distribute narcotics or aided and
abetted the marijuana distribution.
Conspiracy to distribute narcotics
"To convict someone of [drug-conspiracy], the government
must prove beyond a reasonable doubt that he knew about and - 96 -
voluntarily participated in the conspiracy, 'intending to commit
the underlying substantive offense.'" United States v. AcostaColón, 741 F.3d 179, 190 (1st Cir. 2013) (quoting United States v.
Ortiz de Jesús, 230 F.3d 1, 5 (1st Cir. 2000)). "[P]roof may come
from direct evidence or circumstantial evidence, like inferences
drawn 'from members' words and actions and from the interdependence
of activities and persons involved.'" Id. (quoting Ortiz de Jesús,
230 F.3d at 5).
Suanette contends there was insufficient evidence to
convict her of conspiracy because living with Carlitos did not
mean she had joined the conspiracy, she was indifferent to the
success of the drug selling enterprise, she had no interdependence
with any members of the conspiracy, she didn't know what the others
were doing, and there was no evidence she associated with anyone
else in the conspiracy. The government responds there was
sufficient evidence to convict Suanette of conspiring to traffic
marijuana from Lopez's and Vega's testimony. The government says
their testimony shows she was directly involved in dealing drugs
and helping Carlitos and Vega with their drug sales. In our view,
the government has the better argument. Two witnesses testified
Suanette either resupplied or directly sold marijuana to them at
one of the organization's drug hubs, that sometimes she was on her
own, and sometimes she was with Carlitos, who had also been charged
with the conspiracy to traffic drugs. - 97 -
Suanette also makes a broad argument that the testimony
from one CW contradicted the other because one testified she
resupplied him with baggies of marijuana to sell and the other CW
testified she did not resupply him, but she did sell directly to
him either on her own or when she was with Carlitos. Suanette's
argument doesn't help convince us there was insufficient evidence.
When we view the testimony in the light most favorable to the
prosecution (as we must, see Chan, 981 F.3d at 51), a rational
jury could have easily concluded each CW simply had different
interactions and experiences with her. CW Lopez and CW Vega
observed her actions from their respective roles and positions
within the organization. Each of their testimonies, on their own,
could have been sufficient to convict her because they both
observed her engage in the sale of marijuana: she delivered the
inventory of marijuana for CW Vega to sell a few times a week, and
she sold marijuana to CW Lopez by collecting the money while her
husband handed the drugs to him.
Suanette also protests that "[m]ere association with a
conspirator is not enough to prove beyond a reasonable doubt that
[she] is also a co-conspirator." True, but CW Lopez's and CW
Vega's testimony goes beyond mere association. Each of these
witnesses testified that she either handed marijuana to them or a
coconspirator standing nearby or took money from them while her
husband handed the marijuana over to them. Their testimony - 98 -
demonstrates she purposefully and willingly interacted with them.
There is, therefore, sufficient evidence to sustain her conviction
for the drug distribution conspiracy. See Acosta-Colón, 741 F.3d
at 190-91.
Aiding and abetting distribution of marijuana
Suanette states in her brief that there was insufficient
evidence to convict her of aiding and abetting the distribution of
marijuana but her entire argument seems to focus on her insistence
that there was insufficient evidence to sustain her conviction for
the conspiracy count. Giving her the benefit of the doubt, we
briefly state that there certainly was sufficient evidence to find
her guilty beyond a reasonable doubt of the aiding and abetting
charge. The government argues the same evidence that convicted
her of the conspiracy count is sufficient to prove beyond a
reasonable doubt that she aided and abetted the distribution of
marijuana. We agree.
To convict Suanette of aiding and abetting in the
distribution of marijuana, the government needed to prove she
"'associated h[er]self with the venture,' 'participated in [the
venture] as something that [s]he wished to bring about,' and that
[s]he 'sought by [her] actions to make the venture succeed.'"
United States v. Monteiro, 871 F.3d 99, 109 (1st Cir. 2017)
(quoting Negrón-Sostre, 790 F.3d at 311). The testimony from CW
Lopez and CW Vega clearly shows she was more than merely present - 99 -
for the interactions they had with her; she actively engaged in
the distribution of marijuana when she resupplied CW Vega four
times a week at the same time on each of those days and participated
in the sale of marijuana to CW Lopez when she took the money he
tendered when he bought from her and Carlitos. Cf. Negrón-Sostre,
790 F.3d at 311-12 (mere presence is insufficient to prove aiding
and abetting possession with intent to distribute). We affirm her
conviction for aiding and abetting the distribution of marijuana
and move on to Juan's arguments about the lack of evidence
supporting his convictions.
Juan's convictions
The testimony about Juan's actions included CWs and law
enforcement agents. CW Ferrer testified about his experiences at
Los Claveles, a tower of apartments where he often spent time with
his cousin, Julio Alexis, and watched his cousin buy marijuana
from the lobby. CW Ferrer also bought marijuana for others who
were scared to go into this apartment building. Over time, CW
Ferrer often helped during his cousin's shifts by giving customers
the marijuana they bought while his cousin took the money. CW
Ferrer testified he met Juan for the first time in January 2008,
when he went to Juan's apartment with his cousin, who had just
finished a shift and needed to do his "tally." (A tally, CW Ferrer
explained, is when the seller returns the drug inventory he or she
did not sell during a shift back to the runner along with the money - 100 -
collected from sales throughout the shift.) CW Ferrer watched his
cousin record the number of baggies of marijuana and cocaine, vials
of crack, and aluminum folds of heroin.
CW Ferrer also testified that he went to Villa Margarita
in the summer of 2008 with his cousin when Juan asked the cousin
to take the tally there. When CW Ferrer and his cousin arrived at
Villa Margarita, Joel called Juan using the walkie-talkie function
on a cell phone to find out why Juan had not brought the tally
over himself. CW Ferrer testified the tally his cousin handed to
Joel included money, marijuana, cocaine, crack vials, and aluminum
packets of heroin. CW Ferrer went back to Villa Margarita another
time with his cousin, again on Juan's request.
CW Vega also testified about Juan's actions. When Vega
was working for the enterprise as a lookout at Villa Margarita in
May 2008, he saw Juan several times. On one occasion, other
members of the enterprise handed Juan packages of heroin,
marijuana, and crack cocaine, which Juan placed in the seat of the
motorcycle he had arrived on before riding off in the direction of
Los Claveles. CW Vega also saw Juan at Los Claveles when Vega was
there to buy drugs. CW Vega testified he watched Juan get off an
elevator and ask the man from whom CW Vega was buying to give him
(Juan) the tally; the seller gave Juan money and Juan gave the
seller a package with vials of crack. - 101 -
Members of law enforcement also testified about Juan's
actions. When Agent Evette Berrios Torres went to Villa Margarita
in July 2008 as part of her investigation of drug trafficking and
organized crime in that area, she observed Juan command the men he
was with to cooperate with her and the other agents at the scene,
leading by example when he walked up to her vehicle and placed his
hands on the hood and ordering the others to do the same. According
to Agent Berrios, they complied.
On appeal, Juan argues there was insufficient evidence
to prove his guilt beyond a reasonable doubt and he identifies a
lot of evidence against him as unreliable or not credible. He
claims that the "main evidence" against him was CW Ferrer's
testimony, which Juan brands as "[u]nreliable, uncorroborated,
vague and scant." He also claims that CW Vega's testimony was
vague and not credible. The government, for its part, argues that
Juan's arguments boil down to his contention that the testimony of
the CWs should not have been believed. We won't spend a boat load
of time here examining Juan's claims because a defendant cannot
win a sufficiency-of-the-evidence challenge by claiming (as Juan
does) the witnesses against him were not credible. Our framework
for reviewing this kind of challenge means we give the government
the benefit of the doubt and resolve any questions of witness
credibility against the defendant. United States v. Cruz-Ramos, - 102 -
987 F.3d 27, 38 (1st Cir. 2021); United States v. Manor, 633 F.3d
11, 13 (1st Cir. 2011).
The government says there was sufficient evidence to
convict Juan of conspiracy because it showed he was running the
Los Claveles drug point for the drug trafficking organization.
The government also argues that there was sufficient evidence to
convict Juan of aiding and abetting drug trafficking because there
was much eyewitness testimony that he managed the sale of several
types of drugs from the Los Claveles drug point along with Joel
and other members of the organization.
To the extent Juan is arguing that CW Ferrer's testimony
was insufficient because it was uncorroborated, we can also head
this off immediately because it is well-settled that "[t]estimony
from even just one witness can support a conviction." NegrónSostre, 790 F.3d at 307 (quoting United States v. AlejandroMontañez, 778 F.3d 352, 357 (1st Cir. 2015)). There was sufficient
evidence on CW Ferrer's testimony alone to uphold Juan's conspiracy
and aiding-and-abetting-the-distribution convictions. But more
than one witness testified about Juan's involvement with the drug
trafficking organization; CW Vega also testified about two
specific instances of watching Juan receive packages of drugs or
money in direct exchange for a package of drugs and Agent Berrios
watched several men fall into line when Juan clearly had authority - 103 -
to tell them what to do when she and her agents met them at Villa
Margarita.
The testimony also demonstrates there was sufficient
evidence to convict Juan of the conspiracy count because Juan
clearly "knew about and voluntarily participated in the
conspiracy, 'intending to commit the underlying substantive
offense.'" Acosta-Colón, 741 F.3d at 190 (quoting Ortiz de Jesús,
230 F.3d at 5). The testimony summarized above also demonstrates
there was sufficient evidence to convict Juan of the four aiding
and abetting counts because Juan clearly "'associated himself with
the venture,' 'participated in [the venture] as something that he
wished to bring about,' and 'sought by his actions to make the
venture succeed.'" Monteiro, 871 F.3d at 109 (brackets in
original) (quoting Negrón-Sostre, 790 F.3d at 311).36
36 Juan does not address his count of conviction for conspiracy
to possess a firearm in furtherance of a drug trafficking crime,
so he has waived any argument about the sufficiency of the evidence
for that crime. See, e.g., Cruz-Ramos, 987 F.3d at 35 n.5 (citing
Rodríguez, 659 F.3d at 175).
Juan also provides a laundry list of other evidence from trial
and asserts, without any supporting case law whatsoever, why these
pieces of evidence cannot support his conviction. We decline to
address these assertions because he did not provide any developed
argument about them. See Chan, 981 F.3d at 50 n.4 (citing
Rodríguez, 659 F.3d at 175 ("It should go without saying that we
deem waived claims not made or claims adverted to in a cursory
fashion, unaccompanied by developed argument."); Holloway v.
United States, 845 F.3d 487, 491 n.4 (1st Cir. 2017) (stating an
argument was waived when party failed to provide any legal
citations to support its argument)).
Finally, Juan writes a few lines suggesting his drug-related
convictions should be dismissed because the indictment specified - 104 -
Juan's convictions affirmed, we move on to the
sentencing issues.
SENTENCING
Joel, Carlos, Juan, and Idalia all challenge the methods
the trial judge used to calculate the drug quantities attributable
to each of them when she determined their individual guidelines
sentencing ranges ("GSRs") before imposing their individual
sentences. Before tackling their respective arguments, we provide
some basic sentencing principles which govern the way we consider
their arguments.
Our overall task when we examine a sentence or, as here,
the sentencing process, is to consider whether the sentence is
reasonable. Typically, our reasonableness review "is bifurcated,
requiring us to ensure that the sentence is both procedurally and
substantively reasonable." United States v. Arsenault, 833 F.3d
24, 28 (1st Cir. 2016) (citing United States v. Mendez, 802 F.3d
93, 97 (1st Cir. 2015)). "We ordinarily review both procedural
and substantive reasonableness [arguments] under a deferential
the location of his activities as within 1,000 feet of a public
housing authority but Los Claveles is private property outside the
purview of 18 U.S.C. § 860(a). The indictment actually charges
him and the others with distribution "within 1000 feet of a
playground in Los Claveles Housing Project and in around the Villa
Margarita Ward . . . ," not a housing facility. Regardless, any
argument or claim he intended to make on this basis is waived
because it is perfunctory and undeveloped. See id.- 105 -
abuse-of-discretion standard." Id. (citing United States v.
Maisonet–González, 785 F.3d 757, 762 (1st Cir. 2015), cert. denied
sub nom. Maisonet v. United States, 136 S. Ct. 263 (2015)).
"However, when assessing procedural reasonableness, this
[c]ourt engages in a multifaceted abuse-of-discretion standard
whereby 'we afford de novo review to the sentencing court's
interpretation and application of the sentencing guidelines,
[examine] the court's factfinding for clear error, and evaluate
its judgment calls for abuse of discretion.'" Id. (quoting United
States v. Ruiz–Huertas, 792 F.3d 223, 226 (1st. Cir. 2015)). "And
we will find an abuse of discretion only when left with a definite
conviction that 'no reasonable person could agree with the judge's
decision.'" McCullock, 991 F.3d at 317 (quoting Cruz-Ramos, 987
F.3d at 41). One of the ways in which a district court can commit
a procedural error in sentencing is to improperly calculate the
GSR. United States v. Lee, 892 F.3d 488, 491 (1st Cir. 2018).
Drug Quantity
(Joel & Carlos)
Joel and Carlos37 both challenge the trial judge's
findings of the drug quantities she used to calculate their GSR
37 Joel was sentenced to 360 months on each of the following
four counts: conspiracy to distribute narcotics, aiding and
abetting the distribution of heroin, aiding and abetting the
distribution of crack cocaine, and aiding and abetting the
distribution of powder cocaine; 120 months on the count for aiding
and abetting the distribution of marijuana; and 240 months on the
count for conspiracy to possess a firearm in furtherance of a drug - 106 -
and determine their respective sentences. Before delving into the
arguments, we lay the groundwork for our review by summarizing
Joel's and Carlos's objections and motions leading up to their
sentencing hearings.
The presentencing report ("PSR") suggested a finding of
25,446.49 kg of marijuana for the three-year conspiracy (after
converting the suggested quantities of the other drugs at play as
instructed in U.S.S.G. § 2D1.1, App. Note 8(D)). Before his
sentencing hearing, Carlos filed an objection to the drug quantity
included in the PSR, arguing this quantity was based on unreliable
testimony from CW Vega. According to Carlos, CW Vega testified to
different drug amounts during cross-examination than he did during
his direct testimony. Carlos also argued that CW Vega's testimony
regarding drug quantities only covered a portion of the three-year
conspiracy and that Vega couldn't provide accurate quantities
because his role shifted throughout the conspiracy from lookout to
seller, meaning his testimony about quantities couldn't be
extrapolated to calculate the total quantity for the entire threetrafficking crime, all to be served concurrently. Carlos, who was
also convicted of all six counts charged, was sentenced to 324
months on each of the following counts: conspiracy to distribute
narcotics, and aiding and abetting the distribution of heroin,
crack cocaine, and powder cocaine, respectively; 120 months on the
count for aiding and abetting the distribution of marijuana, and
240 months on the count for conspiracy to possess a firearm in
furtherance of a drug trafficking crime, all to be served
concurrently.- 107 -
year timespan of the charged conspiracy. Joel, for his part, also
filed an objection to his own amended PSR, expressly adopting
Carlos's arguments regarding extrapolation from CW Vega's
testimony.
The trial judge overruled both objections, finding CW
Vega's testimony reliable on the whole despite the occasional
discrepancies in precise amounts. Addressing Carlos's and Joel's
objections to using this testimony to extrapolate the total
quantity for the length of the conspiracy, the judge stated the
probation office used drug quantities from all four CWs and
plausibly extrapolated from the testimonies to provide a
conservative total quantity for sentencing purposes.
At the subsequent sentencing hearings, the judge
attributed 25,446.49 kg of marijuana to Joel and to Carlos.38 For
Carlos, the judge calculated a total offense level of 41 with a
criminal history category ("CHC") of I for a GSR of 324 to 405
months and ultimately sentenced him to 324 months. For Joel, the
judge calculated a total offense level of 42 with a CHC of II for
38 This quantity was the total quantity estimated in each PSR
as attributable to the three-year conspiracy after the various
controlled substances were converted to equivalent marijuana
quantities as instructed in U.S.S.G. § 2D1.1(c), App. note 8(D),
for purposes of determining the base offense level. - 108 -
a GSR of 360 months to life and ultimately sentenced him to 360
months.39
On appeal, Joel and Carlos continue to press their
argument that the only evidence of the drug quantities sold was
testimony from CW Vega who, they say, did not provide reliable
testimony because, throughout his testimony, he was inconsistent
about how much he typically sold each shift he worked. Both also
insist that the other CWs did not provide daily sales figures.
Both appellants rely on United States v. Rivera-Maldonado, where
we warned that "[t]he potential for grave error where one
conclusory estimate serves as the multiplier for another . . . may
undermine the reasonable reliability essential to a fair
sentencing system." 194 F.3d 224, 233 (1st Cir. 1999) (remanding
for resentencing because the drug quantity used to determine the
base offense level was based on a pyramid of unreliable
inferences). Carlos specifically argues that the trial judge's
calculation of the drug quantity by multiplying small amounts
seized across dozens of days of investigations in order to reach
a daily sales figure is the kind of grave error we warned about in
Rivera-Maldonado.
39 Joel's counsel renewed the objection to the drug quantity
during the sentencing hearing. Carlos's counsel did not lodge any
additional objections during the sentencing hearing. - 109 -
The government responds that the judge used a reasoned
estimate of the drug quantity attributable to Joel and Carlos when
she adopted the PSR's calculations because the probation office's
calculation, while largely informed by CW Vega's testimony, was
corroborated by other CWs' testimony regarding sales volumes. The
government points out that, even if CW Vega's testimony had been
entirely consistent between direct and cross-examination, the
probation office's calculations of drug quantity were below the
lowest quantity to which he testified. The government also
emphasizes that the quantities calculated in the PSRs were
conservative in other ways too, such as using only the estimated
quantities of drugs sold at Villa Margarita and not adding
quantities from sales at Los Claveles, considering the two-shift
selling operation at Villa Margarita (as opposed to a single shift)
as starting later in time than the testimony supported, halving
the quantities sold during the day vs. night shifts, and using
only sales figures for "slow" days (rather than the higher
quantities supported by the testimonies for "busy" days).
"When making a drug quantity finding, the sentencing
court's responsibility is to 'make reasonable estimates of drug
quantities, provided they are supported by a preponderance of the
evidence.'" Lee, 892 F.3d at 491 (quoting United States v. Mills,
710 F.3d 5, 15 (1st Cir. 2013)). "We review those estimates
'deferentially, reversing only for clear error.'" Id. (quoting - 110 -
Mills, 710 F.3d at 15). "We will only find clear error when our
review of the whole record 'forms a strong, unyielding belief that
a mistake has been made.'" Id. at 491-92 (alteration adopted)
(quoting Cumpiano v. Banco Santander P.R., 902 F.2d 148, 152 (1st
Cir. 1990)).
A defendant who is convicted of conspiracy to distribute
controlled substances will be held responsible "not only for the
drugs he actually handled but also for the full amount of drugs
that he could reasonably have anticipated would be within the ambit
of the conspiracy." United States v. Correa-Alicea, 585 F.3d 484,
489 (1st Cir. 2009) (quoting United States v. Santos, 357 F.3d
136, 140 (1st Cir. 2004)). Although the court "may rely on
reasonable estimates and averages" to reach "its drug-quantity
determinations", those estimates must possess "adequate indicia of
reliability" and "demonstrate record support," Rivera-Maldonado,
194 F.3d at 228 (internal citations omitted); a "hunch or
intuition" won't cut it, Correa-Alicea, 585 F.3d at 489 (quoting
Marrero-Ortiz, 160 F.3d at 780). When we review the district
court's factual finding as to drug quantity for clear error, we
are looking for "whether the government presented sufficient
reliable information to permit the court reasonably to conclude
that [the appellants were] responsible for a quantity of drugs at
least equal to the quantity threshold for the assigned base offense
level." Correa-Alicea, 585 F.3d at 489 (quoting United States v. - 111 -
Barnett, 989 F.2d 546, 553 (1st Cir. 1993)). We have previously
recognized that "an estimate of drug quantity may be unreliable if
based on an extrapolation from too small a sample." Id. (citing
Rivera-Maldonado, 194 F.3d at 231 (holding a dozen controlled buys
over a six-month period was not sufficiently reliable for
estimating the overall drug quantity)).
The drug quantity the trial judge used to determine the
applicable base offense level for Joel and Carlos was based on
much more than a small sample of drugs seized by the government.
The CWs testified at length about the operational details of their
drug trafficking organization, including where the drugs were sold
and how the sellers were organized first in one day shift but
eventually evolved into a 24-hour operation with a day shift and
a night shift. CW Vega testified in detail about how much he sold
on each day of the week, depending on the time of day. While he
did not testify to the same exact quantities when cross-examined,
he provided the same general quantity range and, as the government
points out, the PSR explicitly explains how it included
conservative estimates for the length of time the sales were made
24 hours/day as opposed to 12 hours/day and the quantity of each
drug sold per day.
The extrapolation of the drug quantities attributable to
the entire length of the conspiracy was clearly based on
information from CW Vega and informed by the testimony from other - 112 -
CWs as well as testimony from the government's experts, and we
have no concerns that there are any grave errors in the calculation
of the total quantity attributed to the conspirators. See RiveraMaldonado, 194 F.3d at 233. In our opinion, the judge's drug
quantity finding was based on sufficiently reliable information
and we have no reason to believe a mistake or clear error was made
in the calculation of the total drug quantity. See Correa-Alicea,
585 F.3d at 489.
Juan
Juan raises different arguments than Joel and Carlos in
his challenge to his 235-month sentence.40 Prior to the sentencing
hearing, Juan asserted he should only be held responsible for the
drug sales at Los Claveles and not the sales at Villa Margarita
because, according to him, there was no evidence linking him to
Villa Margarita. He also asserted that there was no way for the
court to determine the drug quantity for purposes of calculating
his sentence because there was no testimony at trial about the
quantity of the drugs sold at Los Claveles. During his sentencing
hearing, Juan relied on the written memorandum he'd already filed.
40 Juan was sentenced to 235 months on his convictions for
conspiracy to distribute narcotics, conspiracy to possess a
firearm in furtherance of a drug trafficking crime, and aiding and
abetting the distribution of powder cocaine, crack cocaine, and
heroin. Juan was also sentenced to 120 months on his conviction
for aiding and abetting the distribution of marijuana, to be served
concurrently with the sentence for the other counts of conviction.- 113 -
The government argued the evidence at trial revealed Juan was a
high-level runner for the organization who was clearly instructing
other members of the conspiracy about where to go and what to sell,
and that the Los Claveles and Villa Margarita drug points were
part of the same operation with the same main operators, including
Juan. On appeal, Juan contends his sentence was unreasonable for
the same reasons he articulated in his sentencing memorandum.
As we previously stated, we review preserved sentencing
arguments for abuse of discretion, reviewing the findings of fact
for clear error and any conclusion regarding the governing
sentencing laws de novo. Arsenault, 833 F.3d at 28. Juan argues
that his sentence is procedurally unreasonable because the judge
used the drug quantity evidence from sales at the "curve" to
calculate his sentence. Juan says this evidence doesn't reflect
his personal involvement in the conspiracy because he had allegedly
worked as a runner at Los Claveles, not at the "curve," so the
quantities for drug sales at the "curve" were not attributable to
him in the absence of evidence connecting him to drug trafficking
at the "curve."
Juan's right that "when a district court determines drug
quantity for the purpose of sentencing a defendant convicted of
participating in a drug trafficking conspiracy, the court is
required to make an individualized finding as to drug amounts
attributable to, or foreseeable by, that defendant." United States- 114 -
v. Colon-Solis, 354 F.3d 101, 103 (1st Cir. 2004). But this is
not the same thing as requiring that "the defendant must have
personally handled the drugs for which he is held responsible,"
which we don't. Id. at 103 n.2 (citing U.S.S.G. § 1B1.3). "A
defendant may be held responsible for drugs involved in his
'relevant conduct' [and] 'such conduct may include a defendant's
own acts or the acts of others.'" Id. (first quoting U.S.S.G.
§ 1B1.3, then quoting United States v. Laboy, 351 F.3d 578, 578
(1st Cir. 2003)).
As the government points out, in a drug conspiracy, the
quantities of drugs sold by others operating within the enterprise
are attributable to a defendant as long as the sales were a
reasonably foreseeable consequence of the enterprise. United
States v. Ramírez-Negrón, 751 F.3d 42, 53 (1st Cir. 2014) ("A
defendant may be held responsible only for drug quantities
'foreseeable to [that] individual.'" (quoting United States v.
Correy, 570 F.3d 373, 380 (1st Cir. 2009))). "Foreseeability
encompasses 'not only . . . the drugs the defendant actually
handled but also . . . the full amount of drugs that he could
reasonably have anticipated would be within the ambit of the
conspiracy.'" Id. (brackets omitted) (quoting Santos, 357 F.3d at
140).
Both the Villa Margarita and Los Claveles drug points
were part of the single conspiracy for which Juan was charged and - 115 -
convicted; as summarized supra when we reviewed Juan's challenge
to the sufficiency of the evidence to support his convictions,
there was testimony to support Juan's movements and actions at and
between both locations. It was therefore reasonably foreseeable
that, while Juan primarily worked at Los Claveles, the sales at
Villa Margarita would be both attributable and attributed to him.
The trial judge did not abuse her discretion by using the drug
quantities calculated from the sales at Villa Margarita when she
calculated and imposed Juan's sentence.41
Idalia
Idalia challenges the trial judge's attribution of her
husband's crack sales to her. The evidence at trial showed Idalia
directly sold vials of crack from her home, and at times completed
the sales transactions when a customer was looking for her husband,
Carlos. Idalia was sentenced to sixty months for her one count of
conviction for aiding and abetting the possession with intent to
distribute fifty grams or more of crack within 1,000 feet of a
protected facility.
41 Juan also states that his sentence was substantively
unreasonable because some of the similarly situated codefendants
(including other alleged drug runners) received more lenient
sentences. Other than listing some of these codefendants' names,
alleged role in the conspiracy, and ultimate sentence, Juan doesn't
develop this argument. It is therefore waived. See Chan, 981
F.3d at 50 n.4.- 116 -
Prior to her sentencing hearing, Idalia successfully
challenged the PSR's recommendation that the court calculate her
GSR using the amount of crack attributable to the entire
conspiracy. The trial judge sustained her objection to the extent
Idalia had not been convicted of the conspiracy charge but found
the estimated amount of crack sold to CW Vega by Carlos was
properly attributable to Idalia because her one count of conviction
included aiding and abetting the distribution of crack cocaine.
At the sentencing hearing, Idalia pressed her objection to the
inclusion of the crack sold by Carlos in the court's finding of
the amount of crack for which she was held responsible for
sentencing purposes. She argued there was no indication CW Vega
had bought crack from both her and Carlos at the same time --
always from either one or the other when the other was not present.
In response, the trial judge noted CW Vega's testimony that he
first bought from Idalia after she emerged from the house she
shared with Carlos in response to Vega calling for Carlos and that
he always bought from Carlos and Idalia from the yard of their
house. The judge relied on U.S.S.G. § 1B1.3, which provides the
relevant conduct for the determination of the GSR. See Sections
1B1.1, 1B1.2(b). Idalia was on the hook for:
(1)(A) all acts and omissions committed, aided, abetted,
counseled, commanded, induced, procured, or willfully
caused by the defendant; and
(B) in the case of a jointly undertaken criminal
activity (a criminal plan, scheme, endeavor, or - 117 -
enterprise undertaken by the defendant in concert with
others, whether or not charged as a conspiracy), all
acts and omissions of others that were--
(i) within the scope of the jointly undertaken criminal
activity,
(ii) in furtherance of that criminal activity, and
(iii) reasonably foreseeable in connection with that
criminal activity;
that occurred during the commission of the offense of
conviction, in preparation for that offense, or in the
course of attempting to avoid detection or
responsibility for that offense[.]
Section 1B1.3.
On appeal, Idalia continues her battle against the
calculation of her GSR including the sales by Carlos to CW Vega
during the time in which she also sold crack to Vega. She argues
that her sentence is unreasonable as a result of this attribution,
especially because the trial judge rounded up to two months of
Carlos's sales to her when CW Vega's testimony indicated she might
have only sold to him during a one-month period. The round up,
according to Idalia, constitutes clear error on the part of the
judge. The government responds that CW Vega's testimony reflected
a two-month purchasing timeframe and argues that, as a matter of
law, Carlos's sales to Vega during these two months were properly
included in the total quantity attributed to Idalia for the purpose
of calculating her GSR.
As we have previously stated, "[t]he district court's
finding as to the amount of drugs reasonably foreseeable to [a
defendant] need only be supported by a preponderance of the - 118 -
evidence and need not be exact so long as the approximation
represents a reasoned estimate." United States v. Ortiz-Torres,
449 F.3d 61, 79 (1st Cir. 2006) (citing Santos, 357 F.3d at 141).
In addition, "[w]e will set aside a drug-quantity calculation only
if clearly erroneous; if there are two reasonable views of the
record, the district court's choice between the two cannot be
considered clearly erroneous." Id. (citing Santos, 357 F.3d at
141).
Idalia, quoting United States v. Ortiz, 966 F.2d 707,
712 (1st Cir. 1992), points out that "the line that separates mere
presence from culpable presence is a thin one, often difficult to
plot." Indeed, we have also stated that "mere association between
the principal and those accused of aiding and abetting is not
sufficient to establish guilt; nor is mere presence at the scene
and knowledge that a crime was to be committed sufficient to
establish aiding and abetting." Id. (alteration adopted) (quoting
United States v. Francomano, 554 F.2d 483, 486 (1st Cir. 1977)).
However, these statements of black letter law related to the
substantive charge of aiding and abetting won't help her here.
There is no doubt she was on the hook for the crack sold by her
partner at the same location and to the same person when it came
to determining a reasonable sentence to impose for her aiding and
abetting conviction. See U.S.S.G. § 1B1.3. The sentencing
guidelines are clear, so the trial judge was not wrong to include - 119 -
Carlos's crack sales to CW Vega during the time period the latter
identified as also buying crack from Idalia when the trial judge
calculated the total drug quantity attributable to Idalia.
Turning our attention to Idalia's argument that the
trial judge clearly erred by using a two-month period to estimate
the total quantity of crack attributable to Idalia for sentencing
purposes, the government points out that Idalia did not
specifically challenge the one- vs. two-month period during the
sentencing proceedings. Because her challenge to the manner in
which the trial judge calculated the total drug quantity
attributable to her is well-preserved, we'll give her the benefit
of the doubt about the preservation of this argument here for our
review.
CW Vega first testified he bought crack from Idalia and
Carlos for "a short while" starting in June 2006. When pressed by
the prosecutor to be more specific about the time, he said "I would
go to the drug point daily, so I would say about a month, two
months" for a total of fifteen times after the first time he bought
vials of crack from Idalia on the front porch. CW Vega also
testified that he bought orange-capped vials of crack cocaine from
Carlos -- in the yard of Carlos's house -- during "the same time
of the two months" as when he bought from Idalia -- from the porch
of the same house. The trial judge's decision to use the twomonth period for calculating the GSR was not wrong, never mind - 120 -
clearly wrong, because this time period and subsequent estimated
quantity was supported by a preponderance of the evidence. See
Ortiz-Torres, 449 F.3d at 79. Idalia's challenge to the procedural
reasonableness of her sentence therefore fails.
Crack:Powder
(Carlos)
In addition to his drug quantity argument, Carlos also
challenges the district court's denial of his request that it use
a 1:1 ratio for crack cocaine:powder cocaine instead of the 18:1
ratio provided in the drug equivalency table in the 2016 U.S.
Sentencing Guidelines, § 2D1.1, App. Note 8(D).42 The trial judge
denied Carlos's motion because she was not convinced the ratio
should be reduced at all in light of the § 3553 factors and
"objectives of sentencing policy." Before us, Carlos argues the
judge should have used her discretion to apply a 1:1 ratio because
the use of the smaller ratio would have had a big impact on his
GSR and, according to him, there is increasing support for courts
to vary from the 18:1 ratio in the guidelines. Carlos also says
the trial judge did not give an adequate explanation for her
42 Pursuant to the drug equivalency table in the 2016 U.S.S.G.
§ 2D1.1, App. Note 8(D), the court is to convert 1 gram of cocaine
base to 3,571 grams of marijuana but 1 gram of powder cocaine to
200 grams of marijuana when it calculates the total drug quantity
attributable to a defendant. Herein lies the 18:1 ratio.- 121 -
refusal to use the requested 1:1 ratio.43 The government responds
that the trial judge did indeed provide her reasons for denying
Carlos's motion and was not required to vary from the ratio
provided in the guidelines. We agree and explain below why we
leave Carlos's sentence as we have found it.
As part of the trial court's wide discretion in
sentencing, the Supreme Court has acknowledged the "district
courts' authority to vary from the crack cocaine Guidelines based
on policy disagreement with them, and not simply based on an
individualized determination that they yield an excessive sentence
in a particular case." Spears v. United States, 555 U.S. 261, 264
(2009) (emphasis in original). Despite Carlos's insistence that
the judge should have used a 1:1 ratio when determining the total
drug quantity here, there is no question that the judge had the
discretion to stick to the 18:1 ratio in the guidelines and did
not abuse her discretion by deciding not to vary from the
applicable drug equivalency table. See id. While there is an
acknowledged disparity in sentencing created by such a divergent
conversion scheme for crack vs. powder cocaine, Dorsey v. United
43 The government says Carlos has not preserved this argument
for our review because Carlos's ratio-based arguments to the trial
judge during the sentencing phase did not frame this issue in terms
of procedural unreasonableness. We disagree and proceed with our
standard abuse of discretion lens of review because we don't see
a pivot in the framing of Carlos's argument in his brief before
us.- 122 -
States, 567 U.S. 260, 266, 268 (2012), we need not and do not get
into that policy controversy here, despite Carlos's invitation to
follow a couple of district court judges who have chosen to vary
from the drug equivalency ratios captured in the sentencing
guidelines. The trial judge did not abuse her discretion when she
denied Carlos's motion to use a 1:1 crack to powder cocaine ratio.
Outcome: For the reasons we stated and explained for each of the
issues discussed above, we affirm all the defendants' convictions
and sentences
Plaintiff's Experts:
Defendant's Experts:
Comments: