US v. Ofray-Campos, (1st Cir. 2008)
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United States Court of Appeals
For the First Circuit
Nos. 05-1461
05-1462
05-2315
05-2627
06-1005
UNITED STATES OF AMERICA,
Appellee,
v.
HERIBERTO OFRAY-CAMPOS, PEDRO JOSÉ DÍAZ-CLAVELL,
DENNYS CRUZ-PEREIRA, MIZAURY LÓPEZ-SOTO, MODESTO ZARAGOZA-LASA,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Torruella, Circuit Judge,
Lynch, Circuit Judge,
and Keenan,
[1]
Senior District Judge.
Elfrick Méndez Morales, on brief for Appellant Ofray-Campos.
José R. Olmo-Rodríguez, for Appellant Díaz-Clavell.
Elaine Pourinski, on brief for Appellant Cruz-Pereira.
Raymond J. Rigat, for Appellant López-Soto.
J. Michael McGuiness, for Appellant Zaragoza-Lasa.
Julia M. Meconiates, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, was on brief for appellee.
July 7, 2008
KEENAN, District Judge. These five consolidated
appeals arise from the convictions of the defendants, after a
jury trial, for their participation in a multi-drug conspiracy.
On October 4, 2002, a federal grand jury, sitting in the District
of Puerto Rico, returned a two-count Indictment, charging forty-three defendants with conspiracy to distribute five kilograms or
more of cocaine, fifty grams or more of crack, and one kilogram
or more of heroin, in violation of 21 U.S.C. §§ 841 and 846.
[2]
The charges stemmed from the defendants’ alleged participation in
Las Avispas, a heroin, powder cocaine, crack, and marijuana ring
that operated drug distribution centers, or drug “points,”
throughout neighborhoods in the Guayama and Salinas regions of
Puerto Rico, from April 1993 to September 2002. Of the forty-three defendants who were indicted, thirty-seven pleaded guilty.
The present Defendants-Appellants, Mizaury López-Soto (“López-Soto”), Heriberto Ofray-Campos (“Ofray”), Pedro José Díaz-Clavell
(“Díaz-Clavell”), Dennys Cruz-Pereira (“Cruz-Pereira”), and
Modesto Zaragoza-Lasa (“Zaragoza-Lasa”) (collectively, the
“Appellants”), opted to go to trial, along with an additional
defendant, Carlos Escobar-Figueroa, whose appeal proceeded
separately. Trial began on August 5, 2003 and concluded on
September 29, 2003. The jury found the Appellants guilty and
indicated by a special verdict form that the charged conspiracy
involved the threshold amounts of the narcotics described in the
Indictment.
For the reasons that follow, we vacate the convictions
of Díaz-Clavell and Zaragoza-Lasa and remand for new trials. We
affirm the convictions of Cruz-Pereira and López-Soto but vacate
their sentences and remand for re-sentencing. We affirm the
conviction and sentence of Ofray.
BACKGROUND
In setting forth the background of this case, we
present the facts in a light that is most favorable to the
Government’s case and thus supportive of the jury’s verdict. We
provide additional facts where they are relevant to the legal
analysis of specific issues. See United States v. Rodriguez-Marrero, 390 F.3d 1, 6 (1st Cir. 2004).
The Government’s evidence at trial consisted, among
other things, of the testimony of law enforcement agents and
cooperating witnesses; audio recordings of drug transactions; and
physical evidence, including guns and narcotics, recovered during
the course of the investigation. The evidence established that,
from 1993 to 2002, Las Avispas, a gang with approximately forty
members under the leadership of José Dávila-López (a/k/a José
Cabezón), owned and operated drug points in Guayama and Salinas
from which members of the organization sold large quantities of
cocaine, crack, heroin, and marijuana. The drug points operated
by Las Avispas included the points at Las Vias and La Plumita, in
the Borinquen ward of Guayama. For several years during the time
period at issue, Las Avispas was engaged in a violent war over
territory in the Borinquen ward with a smaller gang, Los
Jibaritos, that operated a drug point at Las Ruinas, in close
proximity to the Las Vias and La Plumita drug points. The Las
Vias point carried out a thriving narcotics trade, operating
around the clock with nearly constant demand from street users.
Francisco Rivera Cardona, a former Avispas street dealer who sold
crack and cocaine at Las Vias from 1996 to 1999, testified that
he typically sold between 400 and 500 capsules of crack per
eight-hour shift, as well as approximately twenty-five $10 bags
of cocaine per shift. Members of Las Avispas and Los Jibaritos
regularly carried weapons and frequently engaged in shoot-outs
with each other and with members of other rival gangs in the
area.
Las Avispas, Los Jibaritos, and other neighboring drug
rings operated under similar principles. Drug point owners, such
as José Cabezón, were rarely seen at the actual drug points and
had limited interaction with the gangs’ lower level members. In
addition to drug point owners and managers, workers in the drug
rings included suppliers, who sold large quantities of narcotics
on a regular basis to several different gangs; sellers, who sold
the packaged drugs on the street to end users; runners, who kept
the points stocked with drugs; and enforcers, who often carried
firearms and used violence to protect the gangs’ members, drugs,
and drug proceeds from the violent encroachment of rivals.
Often, members of the drug gangs occupied overlapping roles.
The Government’s witnesses also described how different
drugs were packaged. Cocaine and marijuana were sold in plastic
bags, in $5 and $10 quantities. Crack was sold in small plastic
vials, at $3 or $3.50 per vial. Heroin was packaged in aluminum
foil of different colors. The heroin sold by Las Avispas at Las
Vias generally was packaged in violet-colored foil. The
cooperating witnesses also described how the cash proceeds were
safeguarded and how the cash was spent, often on luxury items, to
disguise its illicit source. Much of the testimony focused on
the narcotics activity and violent conduct of members of Las
Avispas who were named in the Indictment but who were not on
trial. The Government also offered testimony about the seizures
of drugs and firearms that were made from many of the absent co-defendants.
Although the Government’s witnesses provided a
comprehensive description of Las Avispas’ structure and
activities, and much testimony was presented relating to the
narcotics activities of the thirty-seven absent co-defendants,
the quantity and quality of the proof adduced against each of the
present Appellants varied markedly. The evidence offered against
each Appellant was as follows.
Ofray
Ofray owned two bars, Rumba’s Pub and La Cota Rota,
[3]
in
Guayama, as well as an upholstery store in Salinas, from which he
sold cocaine in “wholesale” quantities, ranging from eighths of a
kilogram to full kilograms. Abdul Mendoza-Lebrón (“Mendoza-Lebrón”), a former member of Los Jibaritos who acted as second-in-command of their Las Ruinas drug point but who also sold drugs
to Las Avispas in 1997 and 1998, testified that Ofray was a major
cocaine supplier in Guayama. Mendoza-Lebrón purchased crack from
Ofray for re-sale at Las Ruinas, usually from Ofray’s upholstery
store or from Ofray’s residence in Puente Jobo, on a weekly basis
from 1994 until Mendoza-Lebrón’s arrest in 1999. Mendoza-Lebrón
testified that Ofray sold large amounts of drugs to Las Avispas,
Los Jibaritos and, indeed, “to anybody who would come to buy from
him.” Juan Rivera-Rivera (“Rivera-Rivera”), the former leader of
the rival Las Jibaritos gang during much of the time period at
issue, further testified that Ofray supplied cocaine to drug
points run by Las Avispas and that Rivera-Rivera personally
purchased cocaine from Ofray on one occasion, in 1997 or 1998.
Carlos Collazo (“Collazo”), another cooperating witness who
operated a drug point in the San Felipe ward, between Guayama and
Salinas, and frequently associated with and supplied guns to
Avispas members, testified that he learned from López-Soto that
Ofray was a crack supplier.
[4]
Angel Villodas (“Villodas”), a cooperating witness who
began working as a confidential informant for the FBI in 2000,
testified that, on June 8, 2001, he arranged with Ofray to
purchase approximately two ounces of cocaine for $1200. Villodas
made the purchase on June 14, 2001, at Rumba’s Pub. Although
Villodas conferred with Ofray when he first arrived at Rumba’s
Pub to complete the transaction, Villodas testified that it was
Ofray’s part-time employee, Appellant Díaz-Clavell, who delivered
the cocaine to Villodas in the bathroom of Rumba’s. Villodas
also testified that Ofray frequently carried an automatic weapon.
In addition, law enforcement officers testified about
Ofray’s possession of two handguns. Specifically, in the early
morning of July 14, 2002, police officers recovered a .9mm pistol
that Ofray deposited in a parked van outside of Rumba’s Pub.
Later that day, while arresting Ofray, officers seized a Colt .45
pistol that Ofray carried in a duffel bag.
Díaz-Clavell
Díaz-Clavell had a full-time job with the Puerto Rico
Department of Public Works, but also worked part-time at Ofray’s
establishments, Rumba’s Pub and La Copa Rota. Mendoza-Lebrón
testified that Díaz-Clavell was very frequently in Ofray’s
company and often present when Mendoza-Lebrón and Ofray conducted
drug deals. Mendoza-Lebrón also testified that Díaz-Clavell
stashed cocaine and cash for Ofray and, on several occasions when
Mendoza-Lebrón purchased cocaine from Ofray, Díaz-Clavell brought
the drugs to the apartment above Ofray’s upholstery shop, where
the deals were consummated.
As stated above, Villodas, who was Díaz-Clavell’s
second cousin, testified that, on June 14, 2001, when Villodas
went to Rumba’s Pub to execute the cocaine deal that he had pre-arranged with Ofray, it was Díaz-Clavell who delivered the two
ounces of cocaine to Villodas, in the bar’s bathroom.
López-Soto
The Government’s cooperating witnesses, including
Mendoza-Lebrón, Rivera-Rivera, and Collazo, testified at length
about López-Soto’s control of several drug points, including the
Olimpo point in Borinquen, from which López-Soto sold cocaine and
crack from 1993 to 1998. Mendoza-Lebrón testified that López-Soto regularly carried weapons and acted as an enforcer for Las
Avispas from 1993 through 1998, and shot one of the men working
for Mendoza-Lebrón around Christmas of 1998. López-Soto
conducted frequent drug deals with Las Avispas’ members at drug
points in Borinquen, which remained open twenty-four hours each
day. López-Soto was both a buyer and seller of narcotics;
Rivera-Rivera testified that, on a particular occasion in 1996 or
1997, he sold López-Soto 100 vials of crack, and in 1998, bought
one kilogram of cocaine from López-Soto. Collazo testified that
he supplied automatic weapons and silencers to López-Soto in 1996
and 1997. López-Soto also was arrested in possession of a .9mm
pistol in March 1998. In addition, Collazo testified that López-Soto carried out the murder of Santito, a rival drug dealer, in
March 1997. Rivera-Rivera stated that López-Soto admitted to
Rivera-Rivera that he had murdered Santito.
Cruz-Pereira
Mendoza-Lebrón testified that Cruz-Pereira regularly
purchased crack from him and his cousin, Wilson Mendoza-Vásquez
(“Wilson”) –- a member of Las Avispas and one of the defendants
named in the Indictment. Mendoza-Lebrón sold crack to Cruz-Pereira until Mendoza-Lebrón’s arrest in 1999, on those occasions
when Wilson did not have crack to sell. In addition to selling
crack, Mendoza-Lebrón bought “eighths” of crack from Cruz-Pereira.
The Government also presented evidence of three
recorded drug purchases that were made from Cruz-Pereira. On
June 21, 2001, Villodas, who had known Cruz-Pereira since their
youth, went to Cruz-Pereira’s house on Santa Ana Street and
arranged to purchase crack. Cruz-Pereira left in his truck and
returned approximately thirty or forty minutes later with
approximately fifty vials of crack, which he sold to Villodas in
exchange for cash.
Agent Edwin Rosa-Ferrer (“Agent Rosa-Ferrer”), an
undercover officer working for the Puerto Rico Police Department,
was introduced to Cruz-Pereira through an individual named
“Christopher.” On November 17, 1998, Agent Rosa-Ferrer went to
Cruz-Pereira’s house and arranged to purchase one gram of cocaine
for $40. Agent Rosa-Ferrer later went to La Ponderosa, a bar
owned by Cruz-Pereira, to complete the transaction. At La
Ponderosa, Cruz-Pereira received the cocaine from Cruz-Pereira
and handed the $40 to “Christopher.” On December 3, 1998, again
at La Ponderosa, Agent Rosa-Ferrer purchased five grams of
cocaine from Cruz-Pereira for $150.
Zaragoza-Lasa
Zaragoza-Lasa, who was known by the nickname “El Viejo
Mode,” was alleged to be a major heroin and cocaine supplier for
Las Avispas. Cardona testified that he saw Zaragoza-Lasa, whom
he knew only by the name “El Viejo Mode,” at Las Vias on “several
occasions” speaking with Javier Báez, the manager of the drug
point. On one occasion, in 1998, Cardona saw Zaragoza-Lasa hand
to Baez a brick-shaped object wrapped in paper. Cardona
testified that he believed the package contained drugs because a
runner later brought to Cardona what appeared to be the package’s
wrapping, and Cardona was able to make crack out of cocaine
residue that was on the paper. Cardona also testified that when
drug supplies at Las Vias became depleted, the stock of drugs
would increase following “El Viejo Mode”’s visit.
Olga Lebrón-Ortiz (“Lebrón-Ortiz”), a cooperating
witness who regularly sold marijuana and cocaine in the Borinquen
ward in Guayama in 1994 and 1995 and later made undercover drug
purchases for the FBI, saw Lasa –- whom she also knew only by the
name “El Viejo Mode” –- in Borinquen regularly from 1995 through
2002. Zaragoza-Lasa appeared in Borinquen up to twice a week.
Lebrón-Ortiz stated that she saw Zaragoza-Lasa deliver to Javier
Baez a transparent bag containing violet-colored aluminum foil
packages. Lebrón-Ortiz corroborated other testimony that
established that heroin was regularly packaged for sale by Las
Avispas at Las Vias in violet-colored aluminum foil. Lebrón-Ortiz also testified that, on two occasions in 2002, she saw
Zaragoza-Lasa give free samples, or “tastes,” of heroin to
Borinquen street junkies.
“Overview” Testimony
In addition to the aforementioned testimony from
cooperating witnesses and an undercover officer, the Government
offered the testimony of two lead case agents, Agent Ricardo
Rivera and Agent José Tirado, who were both members of the Puerto
Rico Police Department assigned to the joint FBI task force
investigating narcotics and weapons activity in Guayama and
Salinas. Agent Rivera, the Government’s first witness, provided
a general overview of the pervasive, violent drug activity in the
Guayama and Salinas region, identifying eleven different drug
points that were controlled by seven gangs. In addition to
testifying about the general hierarchy among the workers at the
drug points and the way in which drug points typically operated,
Rivera – over defense counsel’s frequent objections – summarized
the role played by each of the five Appellants in Las Avispas.
Agent Rivera stated that Ofray dealt large quantities of drugs
from his bars and upholstery shop, carried weapons regularly, and
was a friend and drug supplier to José Cabezón, Las Avispas’
leader. Agent Rivera described Díaz-Clavell as Ofray’s assistant
and runner, who regularly delivered drugs to Ofray. Rivera also
discussed López-Soto’s role as an enforcer for Las Avispas, and
his frequent carriage of weapons. Agent Rivera identified Cruz-Pereira as the leader of the Santa Ana drug point in the Puente
Jobo ward. Finally, Agent Rivera stated that Zaragoza-Lasa
delivered drugs regularly to Las Avispas and, in particular,
supplied heroin to the Las Vias drug point. Agent Rivera did
not, however, testify that he had any personal knowledge of the
Appellants’ alleged narcotics activity. Rather, he derived his
conclusions “through information that we obtained from informants
who collaborated in the investigation and informants of the
Puerto Rico Police Department and state policemen as well.”
Agent Tirado provided similar “overview” testimony over
defense counsel’s objections later in the trial. Like Agent
Rivera, Agent Tirado explained the role each Appellant played in
the Las Avispas drug organization. Agent Tirado described Ofray
as a Las Avispas cocaine supplier who operated the San Felipe
drug point in Salinas (that is, Ofray’s upholstery store); Díaz-Clavell as Ofray’s runner; López-Soto as a Las Avispas “hit man”
and owner of a drug point; Cruz-Pereira as the manager of the
Santa Ana drug point in the Puente Jobo ward; and Zaragoza-Lasa
as one of Las Avispas’ suppliers, and “the main supplier of
heroin at the Pales Matos drug points in the Borinquen ward, in
Guayama and other drug points” who was known to supply heroin in
violet-colored aluminum foil packets. While testifying about
each Appellant’s role in the conspiracy, Agent Tirado referred to
a chart that contained the names and alleged positions occupied
in the conspiracy by the Appellants and the other defendants
named in the indictment. Like Agent Rivera, Agent Tirado
conceded that his information was obtained solely through second-hand information given to him by informants and “through the
investigation that we conducted.”
DISCUSSION
The Appellants assert numerous individual claims on
appeal. One claim, which initially was raised only by Cruz-Pereira, arises from the district court’s allegedly improper
handling of a jury note submitted after the close of evidence.
In its written response to the note, the court imparted to the
jury information that was extrinsic to the evidence presented at
trial and potentially prejudicial to all five Appellants.
Because the district court’s response to the jury note arguably
affected the jury’s verdict as to all five Appellants, we deal
first with this issue before addressing Appellants’ many
individual challenges.
The Jury Note
On September 29, 2003, after the jury received final
instructions and began deliberations, the district court told
both the prosecutors and defense counsel that, if the court
received a note from the jury, it would notify all counsel, and
that counsel were required to arrive within ten minutes after
being notified. The trial judge warned that if counsel failed to
appear within ten minutes of the notification, he would respond
to the jury’s note without input from anyone who was absent.
The record indicates that the court subsequently
received four jury notes, including the final note, which stated
that the jury had reached a verdict. Two notes, the contents of
which are irrelevant for purposes of this appeal, were marked as
“Jury Note #1" and “Jury Note #3", and were signed by the
foreperson, respectively, at 5:55 p.m. and 6:00 p.m. The note
which concerns us was marked as “Juror Note #2” (“Note #2"), and
was signed by the foreperson at 6:15 p.m.
[5]
Note #2 was written in
Spanish and headed with the single, underlined word “Duda,” which
is translated as “Doubt.” The district court responded to the
note, in English, as follows:
Dear Jury:
The question you posed, Those that are imprisoned,
that is the others in the Indictment, are they in jail
for a conspiracy? The answer is yes. s/Juan M. Pérez-Giménez, U.S.D.J., 9-29-03.
This written answer was then sent to the jury. The
final note from the jury, stating that the jury had reached a
verdict, was signed by the foreperson at 7:15 p.m.
As stated, Cruz-Pereira was the sole Appellant to
assert a claim relating to the jury note. Cruz-Pereira claimed
that the trial court’s handling of the note violated Rule 43(a)
of the Federal Rules of Criminal Procedure, which requires the
presence of the defendant at every stage of the trial, and that
the substance of the district court’s response to the note
resulted in great prejudice. The Government argued, first, that
the district court’s divergence in this case from the standard
practice of handling the jury note was due to defense counsel’s
failure to follow the judge’s reasonable ten-minute rule; second,
that the record indicated that defense counsel were in fact
present when the district court drafted its proposed answer to
Note #2 and did not object to the answer; and third, even if the
court improperly handled the note, that the error was harmless in
light of the overwhelming evidence against Cruz-Pereira.
Because it is undisputed that the district court
informed the jury of a fact that was never offered in evidence -–
namely, that thirty-seven non-testifying co-defendants were
incarcerated for a conspiracy
[6]
–- and because that fact had the
potential of tainting the jury’s verdict with respect to all of
the Appellants, we exercised our discretion to review the jury
note issue as it applied to all five Appellants, even though only
Cruz-Pereira initially raised the claim on appeal. See United
States v. Rivera-Rosario, 300 F.3d 1, 10 n.1 (1st Cir. 2002) (“In
exceptional cases, especially in criminal cases, appellate
courts, in the public interest, may, of their own motion, notice
errors to which no exception has been taken, if the errors are
obvious, or if they otherwise affect the fairness, integrity or
public reputation of judicial proceedings.”) (quoting United
States v. Atkinson, 297 U.S. 157, 160 (1936) (internal quotation
marks omitted)).
Our initial review of the procedural component of the
district court’s handling of the jury note was somewhat hampered
by the state of the trial transcript. As all the parties agree,
the portion of the transcript that relates to the district
judge’s receipt of the jury notes and his drafting of the answer
to Note #2, in particular, contains gaps and omissions. Because
of the incomplete transcription, it was unclear which defense
counsel, if any, were present when the judge discussed his
proposed response to Note #2. It was equally unclear whether
defense counsel were given an opportunity to object to the
proposed response or whether counsel in fact voiced any
objections. Unsurprisingly, the briefs submitted by the
Government and Appellant Cruz-Pereira contained differing
interpretations of the incomplete record. Counsel’s statements
at oral argument did not help to clarify the circumstances under
which the district court responded to Note #2. Accordingly, we
directed the parties to submit supplemental briefing on the issue
of whether the district court’s handling of the jury note was
erroneous, as well as affidavits from the trial attorneys,
setting forth relevant facts related to the trial judge’s
handling of the jury note, in an attempt to reconstruct the
record. In addition, we directed the parties to address the
substantive issue of prejudice that may have resulted, as to each
Appellant, from the court’s answer to Note #2.
The affidavits and supplemental briefing submitted by
the parties lead us to conclude that the procedure followed by
the court in handling the jury note was not erroneous. In United
States v. Maraj, 947 F.2d 520 (1st Cir. 1991), we set forth the
proper procedure for a trial court’s handling of a jury note:
The preferred practice for handling a jury message
should include these steps: (1) the jury’s communique
should be reduced to writing; (2) the note should be
marked as an exhibit for identification; (3) it should
be shown, or read fully, to counsel; and (4) counsel
should be given an opportunity to suggest an
appropriate rejoinder. If the note requires a response
ore tenus, the jury should then be recalled, the note
read into the record or summarized by the court, the
supplemental instructions given, and counsel afforded
an opportunity to object at side-bar. If, however, the
note is to be answered in writing, the court’s reply
should be marked as an exhibit for identification, the
judge should read both the jury’s note and the reply
into the record, and counsel should be afforded an
opportunity to register objections before the reply is
transmitted to the jury.
Id. at 525. In addition, “it is also helpful for the judge to
inform counsel of the substance of [the] proposed response . . .
.” Id. (quoting United States v. Ronder, 639 F.2d 931, 934 (2d
Cir. 1981) (internal quotation marks omitted)). The rules for
handling a jury note that are set forth in Maraj are well-settled. See United States v. Parent, 954 F.2d 23, 25 (1st Cir.
1992) (stating that Maraj drew upon “long-settled precedent” and
“stands foursquare for the proposition that messages from a
deliberating jury, pertaining to ongoing deliberations, ought to
be fully disclosed to the lawyers when received, so that the
latter may be heard before the judge implements a course of
action”). A judge’s responding to a jury note outside the
presence of counsel and defendant also violates Rule 43 of the
Federal Rules of Criminal Procedure, which states that the stages
of a trial at which the defendant must be present include “every
trial stage, including jury impanelment and the return of the
verdict[.]” Fed. R. Crim. P. 43(a)(2).
The affidavits submitted by the parties lead us to
conclude that all parties were present at the time that the
district court drafted a proposed answer to Note #2 and that the
note was discussed with counsel. The affidavits received from
trial counsel for López-Soto (Attorney Inserni), Zaragoza-Lasa
(Attorney Cruz), and Cruz-Pereira (Attorney Dolz) all state that
the attorneys do not recall whether they were present when the
trial judge drafted his answer to Note #2. The attorney who
represented Ofray and Díaz-Clavell jointly at trial (Attorney
Díaz) did not submit an affidavit. By contrast, the Government’s
lead prosecutor at trial, Assistant United States Attorney
(“AUSA”) Irene Feldman, offers a clear recollection of the events
at issue. She states in her affidavit that she “quite definitely
remember[s] the presence of all attorneys in the crowded room
when the notes were read and the answers were discussed and
drafted by the court.” In particular, AUSA Feldman states that
she is “absolutely certain that the second question [Note #2] was
discussed in the presence of all parties prior to the court’s
having drafted and filed a response.”
In light of defense counsel’s collective uncertainty
and the Government’s definitive recollection that all parties
were present when the district court drafted its response to Note
#2, we find that there was no procedural error in the district
court’s handling of the jury note. It is evident from the record
that Note #2 was reduced to writing, and equally evident from the
Government’s affidavit that the note was shown to and/or
discussed with defense counsel, and that counsel thus had the
opportunity to object to the proposed answer.
[7]
We turn next to the issue of whether the trial judge’s
response to Note #2, resulting in the jury’s exposure to
potentially prejudicial extrinsic information, constituted
substantive error. The Sixth Amendment requires that the jury’s
verdict must be based solely upon the evidence developed at
trial. See Turner v. Louisiana, 379 U.S. 466, 472 (1965). “The
theory of our system is that the conclusions to be reached in a
case will be induced only by evidence and argument in open court,
and not by any outside influence, whether of private talk or
public print.” Patterson v. Colorado, 205 U.S. 454, 462 (1907)
(Holmes, J.). “[E]xposure to extrinsic information deprives a
criminal defendant of the protections of the Sixth Amendment,
including his right of confrontation, of cross-examination, and
of counsel.” United States v. Santana, 175 F.3d 57, 65 (1st Cir.
1999) (citations and footnote omitted); see also id. (finding
that “the judge should not have intervened by allowing the jury
to observe [extrinsic evidence] after the close of evidence and
without the standard safeguards of a criminal trial” and vacating
conviction); Lacy v. Gardino, 791 F.2d 980, 983 (1st Cir. 1986)
(finding that defendant’s Sixth Amendment rights to confrontation
and cross-examination were violated when juror peeled tape off
exhibits unmasking information concerning defendant’s prior
criminal record); United States v. Hans, 738 F.2d 88, 93 (3d Cir.
1984) (trial court committed reversible error by granting jury’s
request to examine objects not in evidence, after deliberations
had begun).
The jury’s exposure to extrinsic facts is especially
troubling when the trial judge is the source of the information.
A district court must use extreme caution in answering
questions from juries so as not to usurp the jury’s
fact finding role. As we have noted on many occasions
“undeniably inherent in the constitutional guarantee of
trial by jury is the principle that a court may not
step in and direct a finding of contested fact in favor
of the prosecution regardless of how overwhelmingly the
evidence may point in that direction.”
United States v. Sabetta, 373 F.3d 75, 80 (1st Cir. 2004)
(quoting United States v. Rivera-Santiago, 107 F.3d 960, 965 (1st
Cir. 1997)). “The Constitution casts judge and jury in mutually
supporting -- yet nevertheless distinct -- roles. . . . ‘The
trial judge is . . . barred from attempting to override or
interfere with the jurors’ independent judgment in a manner
contrary to the interests of the accused.’” United States v.
Argentine, 814 F.2d 783, 788 (1st Cir. 1987) (quoting United
States v. Martin Linen Supply Co., 430 U.S. 564, 573 (1977)).
Here, the jury requested, and the court affirmatively
provided, undisputably extrinsic information. There was simply
no evidence presented at trial relating to the current status of
any of the thirty-seven absent co-defendants named in the
Indictment. None of the thirty-seven co-defendants testified at
trial, and no mention was made of whether any of the thirty-seven
had been imprisoned or found guilty of the charges in the
indictment. Thus, the jury’s note itself sugggests that the jury
had been exposed to the extrinsic “fact” that the absent co-defendants were incarcerated. More crucially, the judge’s
response to Note #2, in which he confirmed for the jury that the
thirty-seven co-defendants who did not appear at trial were in
prison for their participation in a conspiracy, constituted new
evidence, delivered to the jury from the bench rather than the
witness stand, and unaccompanied by any of the safeguards of a
criminal trial, in violation of Appellants’ Sixth Amendment
rights. See Turner, 379 U.S. at 472-73 (“Trial by jury in a
criminal case necessarily implies at the very least that the
‘evidence developed’ against a defendant shall come from the
witness stand in a public courtroom where there is full judicial
protection of the defendant’s right of confrontation, of cross-examination, and of counsel.”). Thus, the jury’s exposure to
extrinsic information amounts to an error of constitutional
dimension.
Having found error, we must next select the appropriate
standard for our review. Normally, in the absence of any
objection to the answer that the district court proposed and
submitted to the jury, we would review for plain error. The gaps
in the trial transcript prevent us, however, from ascertaining
whether defense counsel asserted timely objections to the court’s
proposed response. The affidavits submitted in supplemental
briefing do not provide much illumination. The trial attorneys
for López-Soto, Zaragoza-Lasa, and Cruz-Pereira all state that,
although they are unsure whether they were present when the note
was discussed, they would have certainly objected if the trial
judge had stated that he intended to issue a written affirmative
response to Note #2. As Attorney Cruz states, “I don’t remember
any type of discussion in relation to the answer to jury note
number 2. I am familiar with the experience of the defense
attorneys involved in this case and I believe at least one, if
not all of us, would have objected to the wording contained in
the answer to jury note number 2 and would have requested that
the jury be advised that they were only to concern themselves
with those defendants who were at trial.”
AUSA Feldman’s affidavit contains only the oblique
suggestion that defense counsel failed to voice objections.
Regarding defense counsel’s reaction to the court’s proposed
answer to Note #2, Feldman states, “I recall that defense counsel
responded to the jury note and proposed response as if it were
favorable to the defendants.” Feldman does not affirmatively
state that she recalls that there were no objections asserted.
Moreover, the Government does not claim, in its supplemental
brief, that defense counsel failed to object to the district
court’s proposed response.
Further, Feldman’s recollection that defense counsel
responded to the district court’s answer as if it were
“favorable” is contradicted by the record. The transcript,
though incomplete, indicates that at least one attorney raised a
concern about the trial court’s answer. After the court read
aloud, in English, both the question posed in Note #2 and the
answer that was given by the court, the transcript indicates that
Attorney Díaz stated, “But they should know that they didn’t go
to trial.” The court responded as follows: “I didn’t tell them
that they didn’t go to trial. The question you posed, those that
are in prison; that is the others that are in the indictment, are
they in jail for conspiracy? The answer is yes.” Thus, it
appears that Attorney Díaz (who, as noted, did not provide an
affidavit) did go on record to express a reservation about the
propriety of the court’s response.
In sum, the affidavits submitted by counsel and our
review of the incomplete transcript do not lead us to find that
defense counsel failed to object to the trial court’s proposed
response to the jury note. Rather, the record indicates that
some objection was in fact asserted and thus weighs against plain
error review. Ordinarily, “wherever material uncertainties
result from an incomplete or indecipherable record and impede or
affect our decision, we resolve such uncertainties against
appellants." Credit Francais International, S.A. v. Bio-Vita,
Ltd., 78 F.3d 698, 700-01 (1st Cir. 1996); see also Real v.
Hogan, 828 F.2d 58, 60 (1st Cir. 1987) (“[I]t is the appellant
who must bear the brunt of an insufficient record on appeal.”).
The rule, however, is applied typically in cases where an
appellant has failed to provide an adequate record. In this
instance, however, Appellants are not to blame for any
ambiguities or omissions in the record. We have been provided
with the necessary portions of the trial transcript. It is the
transcript itself that is deficient. Mindful that “[a] criminal
defendant has a right to a record on appeal which includes a
complete transcript of the proceedings at trial,” United States
v. Carrillo, 902 F.2d 1405, 1409 (9th Cir. 1990) (citing Hardy v.
United States, 375 U.S. 277, 279-82 (1964)), we will not resolve
the transcript’s inadequacies against the Appellants.
Where, as here, we deem a claim of jury contamination
to be preserved, we are faced with two potential standards of
review: that of abuse-of-discretion or that of harmless error.
In the majority of our cases that have involved claims that a
jury was improperly exposed to extrinsic information, our review
has been for abuse of discretion. These cases involve the jury’s
accidental exposure to potentially prejudicial material that was
not offered in evidence at trial. See, e.g., United States v.
Bradshaw, 281 F.3d 278 (1st Cir. 2002) (unredacted version of
indictment accidentally left in jury room during deliberations);
United States v. Gomes, 177 F.3d 76 (1st Cir. 1999) (indictment
from prior trial of defendant left in jury room); Boylan v.
United States, 898 F.2d 230 (1st Cir. 1990) (magazine containing
potentially prejudicial article about defense counsel
accidentally left in jury room). In each of these cases, the
colorable claim of jury contamination was brought to light either
before or after the rendering of a verdict, the trial judge
conducted an inquiry to discern whether the jurors were in fact
prejudiced by their exposure to outside material, and where
appropriate the judge employed remedial measures, such as issuing
curative instructions, see Bradshaw, 281 F.3d at 291, or
dismissing potentially prejudiced jurors, see Gomes, 177 F.3d at
82. In Bradshaw, we explained that a trial court, when
confronted with a claim of jury contamination, has broad
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 the jury’s exposure
to improper extrinsic information. 281 F.3d at 290. Where the
jury’s contact with outside information is inadvertent and not
accompanied by “egregious circumstances,” and the trial judge
responds to the claim of contamination by conducting an inquiry
and employing remedial measures, we do not presume that the
jury’s exposure to extrinsic material resulted in prejudice. Id.
at 288. Instead, we review the trial judge’s actions for abuse
of discretion. See United States v. Yeje-Cabrera, 430 F.3d 1, 10
(1st Cir. 2005). In Bradshaw, however, we declined to hold that
a presumption of prejudice could never be applied: “We leave for
another day the question of whether a jury’s exposure to
substantively damaging information may sometimes occur under
circumstances so aggravated as to warrant the application of the
. . . presumption [of prejudice] even without deliberate
misconduct (and if so, what those circumstances might comprise).
That question simply is not presented here.” Bradshaw, 281 F.3d
at 288 n.5. Bradshaw recognized that Santana was one of those
cases.
In Santana, 175 F.3d at 57, we held that the jury’s
exposure to outside information required the application of a
presumption of prejudice. In Santana, as in this case, we
confronted the “unusual” situation where the jury was exposed to
extrinsic information after the close of evidence and during its
deliberations, not as a result of inadvertence or juror
misconduct, but rather because of the trial judge’s “approval of
the jury’s request to consider information outside the record.”
Id. at 65. In Santana, the trial judge permitted the jury to
file back into the courtroom after the close of evidence and
observe the defendant’s ears, which had remained covered
throughout the trial by headphones used for the Spanish
translation. A contested issue at trial was whether the
defendant was in fact the individual who had participated in a
drug deal that had been surveilled by a government agent; in
identifying the defendant as a participant in the deal, the agent
remarked on the fact that the defendant’s ears were oddly
protuberant. After observing the defendant without headphones,
the jury returned to its deliberations and subsequently returned
a guilty verdict. There, as here, the trial judge did not
conduct any inquiry into possible prejudice resulting from the
jury’s exposure to extra-record evidence, nor did the court issue
curative instructions or undertake any other remedial measures.
Under those circumstances, we found that “the court’s decision to
allow the jury to consider extrinsic information is . . . .
subject to de novo review and it is error per se.” Id.
We find that review for abuse of discretion is
inappropriate in this case. Here, the jury’s exposure to
extrinsic material did not occur inadvertently: the undisputably
extrinsic information was supplied to the jury by the trial court
itself, in response to the jury’s note, and thus essentially was
offered to the jury as evidence. The judge, who served as the
source of the extrinsic information, conducted no inquiry as to
the prejudice that may have resulted from the jury’s receipt of
the off-record fact and did not undertake any remedial measures.
Thus, there was no action undertaken by the court that we can now
review. Abuse of discretion is simply a poor fit.
We conclude instead that the presumption of prejudice
that we applied in Santana is also appropriate in this case.
Here, as in Santana, the jury actively sought and received
extrinsic information from the trial judge. Here, too, as
discussed below, the information was prejudicial, was probably
used by the jury as evidence of the Appellants’ guilt, and was
unaccompanied by an instruction or any other curative undertaking
by the district court. Accordingly, this case, like Santana,
presents sufficiently aggravated circumstances that a presumption
of prejudice is warranted.
Because the jury’s exposure to extrinsic factual
information in this case raises a presumption of prejudice, “the
government bears the burden of showing beyond a reasonable doubt
that the extrinsic information did not contribute to the
conviction.” Id. at 66 (citations omitted); see also Lacy, 791
F.2d at 983. An error will be deemed harmless if “the
beneficiary of . . . [the] constitutional error [can] prove
beyond a reasonable doubt that the error complained of did not
contribute to the verdict obtained.” Chapman v. California, 386
U.S. 18, 24 (1967); see also Santana, 175 F.3d at 66. In
Sullivan v. Louisiana, 508 U.S. 275 (1993), the Supreme Court
explained that the harmless error inquiry is “not whether, in a
trial that occurred without the error, a guilty verdict surely
would have been rendered, but whether the guilty verdict actually
rendered in this trial was surely unattributable to the error.”
Id. at 279. To determine whether the jury’s exposure to
extrinsic evidence was harmless, a reviewing court must “assess
the record as a whole to determine the impact of the improper
evidence upon the jury. . . . The prejudicial effect of the
improper evidence must be weighed against the weight of the
properly admitted evidence.” Lacy, 791 F.2d at 986 (quoting
Morgan v. Hall, 569 F.2d 1161, 1166 (1st Cir. 1978) (internal
quotation marks omitted)); see also United States v. Weiss, 752
F.2d 777, 783 (2d Cir. 1985) (possibility of prejudice is
assessed “by reviewing the entire record, analyzing the substance
of the extrinsic evidence, and comparing it to that information
of which the jurors were properly aware”). The inquiry regarding
harmless error analysis “is case-specific” and requires
consideration, among other factors, of “the centrality of the
tainted evidence, its uniqueness, its prejudicial impact, the use
to which the evidence was put, and the relative strength of the
parties’ cases.” United States v. Garcia-Morales, 382 F.3d 12, 17
(1st Cir. 2004). We first examine “the nature of the extrinsic
information to which the jury was exposed to determine its
potential prejudicial effect.” Santana, 175 F.3d at 66. Second,
we analyze the weight of the trial evidence properly adduced
against each of the five Appellants. See id.
Nature of the Prejudicial Information
Both the information conveyed to the jury and the
manner of its conveyance were prejudicial. The district court’s
confirmation that the thirty-seven defendants named in the
Indictment who did not appear at trial were all incarcerated for
participation in the conspiracy was tantamount to an announcement
to the jury that the thirty-seven absent defendants had been
convicted of the charges contained in the Indictment. The
Government concedes, as it must, that “[t]he fact that other co-defendants are in prison for the same conspiracy” is “irrelevant
to the guilt of those on trial.” Courts in this and other
circuits have strongly cautioned against the admission of such
evidence. “[A] defendant is entitled to have the question of his
guilt determined upon the evidence against him, not on whether a
codefendant or government witness has been convicted of the same
charge.” United States v. Dworken, 855 F.2d 12, 30 (1st Cir.
1988) (quoting United States v. Miranda, 593 F.2d 590, 594 (5th
Cir. 1979) (internal quotation marks omitted)). The potential
for prejudice is present where evidence of a co-conspirator’s
conviction is admitted for substantive purposes. See United
States v. Blevins, 960 F.2d 1252, 1260-62 (4th Cir. 1992). Under
such circumstances, the jury may abdicate its duty and “regard
the issue of the remaining defendant’s guilt as settled and the
trial as a mere formality.” United States v. Griffin, 778 F.2d
707, 711 (11th Cir. 1985). As the Fifth Circuit, reversing a
conviction on the grounds that the jury was told that a non-testifying co—defendant had pleaded guilty, explained in United
States v. Hansen, 544 F.2d 778 (5th Cir. 1977): “There is no
need to advise the jury or its prospective members that some one
not in court, not on trial, and not to be tried, has pleaded
guilty. The prejudice to the remaining parties who are charged
with complicity in the acts of the self-confessed guilty
participant is obvious.” Id. at 780. Regardless of whether an
absent co-defendant has pleaded guilty or been convicted after
trial, the admission of such evidence not only results in the
danger that the jury will improperly infer guilt by association,
it also “significantly undercuts the defendant’s right to have a
jury’s verdict based only upon evidence that is presented in open
court and is thereby subject to scrutiny by the defendant.”
Blevins, 960 F.2d at 1260. Thus, “where a missing co-defendant
does not testify, ‘it is generally accepted that absent
agreement, courts and prosecutors generally are forbidden from
mentioning that a co-defendant has either pled guilty or been
convicted.’” United States v. Carraway, 108 F.3d 745, 756 (7th
Cir. 1997) (quoting United States v. Johnson, 26 F.3d 669, 677
(7th Cir. 1994) (internal quotation marks omitted)).
Where, as here, the defendants are being tried for
their participation in an alleged conspiracy that took place over
the course of nearly a decade, the danger that the defendants
will be found guilty by sheer association with guilty non-testifying co-defendants is great. See United States v. Izzi,
613 F.2d 1205, 1210 (1st Cir. 1980) (“Guilt by association is one
of the ever present dangers in a conspiracy count that covers an
extended period.”) (citing Kotteakos v. United States, 328 U.S.
750, 774-75 (1946)). Justice Jackson, in his well-known
concurrence in Krulewitch v. United States, 336 U.S. 440 (1949),
reflected on the abnormally high risk to co-defendants in a
conspiracy trial of being found guilty by association:
A co-defendant in a conspiracy trial occupies an
uneasy seat. There generally will be evidence of
wrongdoing by somebody. It is difficult for the
individual to make his own case stand on its own
merits in the minds of jurors who are ready to believe
that birds of a feather are flocked together.
Id. at 454 (Jackson, J., concurring).
Although a jury “may wonder what happened to the co-defendants whose names have been mentioned in the indictment and
in the course of the trial but who have not appeared before
them,” the preferred course is simply to instruct the jury “not
to concern itself with that question.” Carraway, 108 F.3d at 756;
see also Edward J. Devitt, Charles B. Blackmar, et al., Federal
Jury Practice and Instructions § 5.02, at 106 (1992).
The district court’s announcement to the jury that
thirty-seven absent co-defendants named in the Indictment were
incarcerated for the charged conspiracy increased by an order of
magnitude the risk that the Appellants would be found guilty
because of their association with the absent alleged co-conspirators, rather than because of the evidence offered at
trial. Quite simply, the extrinsic information allowed the jury
to draw the prejudicial inference that, if thirty-seven non-testifying co-defendants had been found guilty of the crimes
described in the Indictment, the Appellants also must be guilty.
[8]
Moreover, the court did not instruct the jury that the
incarcerated status of the thirty-seven absent co-defendants, or
the fact that they may have been found guilty, should have no
bearing on the jury’s verdict with respect to each of the
defendants on trial. See United States v. Rivera-Santiago, 872
F.2d 1073, 1083 (1st Cir. 1989). Absent the safeguard of a
proper instruction, the prejudice arising from the court’s
response to the note is even more serious.
The Government claims that the district court’s answer
was not especially prejudicial because “the jury note itself
illustrates the jury already had knowledge that the other co-defendants were imprisoned, as it begins with the phrase, ‘those
that are imprisoned.’” The Government’s argument is unavailing.
To the extent that the note reveals that the jury knew that the
absent co-defendants were imprisoned, as discussed above, such
awareness was not gleaned from evidence presented at trial. The
fact that the jury demonstrated its knowledge of an undisputably
extrinsic fact does not cut against our evaluation of the
prejudicial impact of the jury note and the district court’s
response. As stated, the Sixth Amendment requires that a jury’s
verdict must be based solely upon the evidence developed at
trial, see Turner, 379 U.S. at 472, and “[t]he jury’s exposure
during its deliberations to extrinsic information, whatever its
source, is an error of constitutional proportions . . . .”
Santana, 175 F.3d at 65 (emphasis added).
Moreover, the Government cannot, and does not, attempt
to deny that the most prejudicial extrinsic information in fact
came from the trial judge –- namely, confirmation that the
thirty-seven alleged co-conspirators were imprisoned for the
conspiracy. It was this information that most readily permitted
the jury to draw the impermissible inference of guilt by
association.
We also find that the manner in which the jury
requested the extrinsic information suggests that a direct
connection existed between the extrinsic evidence and the jury’s
verdict. The fact that the note was headed by the word “Duda,”
or “Doubt,” strongly indicates that the jury may have sustained
doubt about some or all of the Appellants’ involvement in the
charged conspiracy and was looking to the trial judge to resolve
that doubt. See Rivera-Santiago, 107 F.3d at 966 (finding it
“significant,” in determining that district court had exposed
jury to extrinsic information, that jury was asking for judge to
provide portion of record to “‘clarify some doubts’”). That the
jury actively sought the information that it received, rather
than obtained it accidentally or in an otherwise unsolicited
fashion, further indicates that the answer was important to its
verdict. See Santana, 175 F.3d at 67 (“[B]ecause the jurors
specifically asked to observe Santana without his headphones,
they obviously deemed such evidence important to their
deliberations.”).
It is also important, in considering prejudice, that
the answer to the jury’s question was supplied by the trial
judge, and thus stamped with the imprimatur of the court, rather
than by comparatively less authoritative sources, such as
prosecutorial comment, juror misconduct, or the inadvertent
admission of extrinsic evidence into the jury room. See id.;
Argentine, 814 F.2d at 788. Finally, the fact that the jury
returned with a verdict a mere forty-five minutes after receiving
the answer to Note #2, which was the last note the jury sent out
prior to the announcement that it had reached a verdict, supports
the inference that the jury attributed weight to the trial
judge’s response, and indeed considered the court’s response to
be important, if not critical, in arriving at the verdict. See
Rogers v. United States, 422 U.S. 35, 40 (1975) (noting that
jury’s returning with a verdict “five minutes” after receiving
judge’s response to query weighed in favor of finding that
judicial response to note was harmful error); Rivera-Santiago,
107 F.3d at 967 (drawing inference that judge’s improper response
to jury influenced verdict where jury returned verdict two hours
after receiving judge’s answer and noting that timing of jury’s
response to judge’s answer was factor to consider in harmless
error analysis). Thus, although the “fact” of the absent co-defendants’ incarceration was neither raised nor disputed at
trial, and although it was not proper for the jury to consider
such a fact in reaching a verdict, it was clearly information
that was material to the jury’s verdict. See Santana, 175 F.3d at
67 (finding that “the connection between the extrinsic
information at issue here –- the appearance of Santana’s ears –-
and an issue material to and disputed throughout the trial –- the
identity of the [supplier of] crack cocaine –- is unmistakable”).
In sum, the nature of the extrinsic information
received by the jury was prejudicial to the Appellants.
Weight of the Evidence
Because the relative strength of the Government’s case
varied as to each Appellant, we consider each of the Appellants
in turn, in light of the court’s response to Note #2.
López-Soto
The error was harmless as to López-Soto. The evidence
clearly established that López-Soto was a member of the Avispas
conspiracy and, more particularly, an enforcer for the
organization who regularly carried guns and engaged in violence.
Juan Rivera-Rivera, who lived near López-Soto in Marín and
frequently associated with members of Las Avispas before the
Avispas and Los Jibaritos became embroiled in a war over
territory, provided ample, detailed testimony about López-Soto’s
ownership of drug points at Olimpo, Las Palmas de Arroyo, Marín,
and El Flamboyan. The evidence showed that López-Soto sold crack
and cocaine from Olimpo from 1993 through 1998. Rivera-Rivera
testified about specific drug deals in which he engaged with
López-Soto, including the sale of 100 vials of crack to López-Soto in 1996 or 1997 and the purchase from López-Soto of one
kilogram of cocaine in 1998. Rivera-Rivera identified specific
individuals who assisted López-Soto in drug dealing, including
Freddie El Agente and “Cabe,” in Olimpo.
Further testimony established that López-Soto acted as
an enforcer for Las Avispas who regularly carried and used guns.
Testimony was presented about López-Soto’s participation in
specific acts of violence, including his participation in an
attempted contract “hit” of a rival drug dealer, with Rivera-Rivera, and his murder of rival dealer Santito in 1997. Collazo
also provided detailed testimony about López-Soto’s narcotics
activity, including his purchase of large quantities of cocaine
which López-Soto subsequently cooked into crack. In addition,
Collazo testified about specific weapons, including automatic
weapons equipped with silencers, that he sold to Zaragoza-Lasa,
thus supporting the Government’s theory that López-Soto acted as
an enforcer for Las Avispas.
In light of the Government’s strong evidence of López-Soto’s participation in the charged conspiracy, and the
comparative weakness of the defense’s case, we conclude that the
guilty verdict was “surely unattributable” to the district
court’s answer to the jury note. Sullivan, 508 U.S. at 279.
Ofray
The Government’s case against Ofray was overwhelming.
Mendoza-Lebrón testified at length that Ofray supplied large-unit
quantities of cocaine to Las Avispas on a weekly basis from 1994
through 1999. There was ample testimony establishing that Ofray
frequently sold narcotics from his businesses in Salinas and
Guayama, which included an upholstery store, Rumba’s Pub, and La
Copa Rota. Mendoza-Lebrón testified that he frequently contacted
Ofray by cellular phone to arrange purchases and designate a
meeting place, and that Ofray would subsequently meet Mendoza-Lebrón at the designated place and there receive drugs from Ofray
in exchange for cash. Rivera-Rivera also testified about Ofray’s
sale of cocaine to Las Avispas and his purchase from Ofray of
nearly one kilogram of cocaine in 1997 or 1998.
In addition, Villodas testified in detail about the
purchase of cocaine that he pre-arranged with Ofray on June 8,
2001, in which he agreed to buy two ounces of cocaine for $1200.
Villodas provided further testimony about the execution of the
sale on June 14, 2001, in which Villodas – while wearing a
monitoring device – went to La Copa Rota, as arranged, met with
Ofray, and shortly thereafter received the cocaine.
Finally, law enforcement testimony established that a
.9mm pistol belonging to Ofray was recovered from outside Rumba’s
Pub and a Colt .45 pistol was seized from Ofray’s duffle bag at
the time of his arrest on July 14, 2002.
As with López-Soto, the strength of the government’s
case leads us to conclude that the extrinsic information to which
the jury was exposed did not sway the verdict as to López-Soto
and was thus harmless beyond a reasonable doubt.
Cruz-Pereira
The district court’s error also was harmless beyond a
reasonable doubt as to Cruz-Pereira. There was convincing
evidence of Cruz-Pereira’s participation in three pre-arranged
drug buys. Agent Rosa-Ferrer purchased cocaine on two separate
occasions from Cruz-Pereira, on November 17, 1998 and December 3,
1998, at Cruz-Pereira’s bar, La Ponderosa. Angel Villodas,
wearing a monitoring device, purchased vials of crack from Cruz-Pereira on June 21, 2001, in the backyard of Cruz-Pereira’s
residence in Santa Ana.
Mendoza-Lebrón also testified that Cruz-Pereira
purchased crack from Mendoza-Lebrón’s cousin, Wilson –- a member
of Las Avispas –- and from Mendoza-Lebrón himself in large
quantities and on a weekly basis until Mendoza-Lebrón’s arrest in
1999. Mendoza-Lebrón also stated that he purchased crack from
Cruz-Pereira.
Because the evidence of Cruz-Pereira’s drug dealing was
strong, if not overwhelming, and was supported by additional
evidence to show that Cruz-Pereira engaged in narcotics activity
with non-government actors, including Mendoza-Lebrón and Wilson,
we find that the district court’s erroneous answer to the jury
note was harmless beyond a reasonable doubt as to Cruz-Pereira.
Díaz-Clavell
By contrast, the evidence presented against Díaz-Clavell, while legally sufficient to support his conviction for
participation in the conspiracy, was not strong enough to
persuade us beyond any reasonable doubt that the jury’s verdict
of guilt was surely unattributable to the court’s response to
Note #2. See Santana, 175 F.3d at 67. The case against Díaz-Clavell relied exclusively on the testimony of cooperating
witnesses. See United States v. Bosch, 584 F.2d 1113, 1123 (1st
Cir. 1978) (finding government’s case “not overwhelming” and
constitutional error harmful, in part, because “[t]he
government’s case consisted primarily of the testimony of
admitted accomplices, whose credibility was attacked”). Although
it was undisputed that Díaz-Clavell worked as a part-time
employee at Ofray’s businesses, and the Government presented
substantial evidence to establish that Ofray was a major cocaine
supplier to Avispas, proof of Díaz-Clavell’s narcotics activity
was relatively scant. Inculpating testimony was limited to the
testimony of Mendoza-Lebrón, who stated that Díaz-Clavell
assisted Ofray in his drug dealing by stashing cocaine and cash;
and the testimony of Villodas, who testified that Díaz-Clavell
delivered approximately two ounces of cocaine to Villodas on one
occasion, on June 14, 2001, in the bathroom of La Copa Rota,
after Villodas had arranged several days earlier to buy cocaine
from Ofray.
Mendoza-Lebrón initially stated only that he often saw
Díaz-Clavell present during drug deals that Ofray conducted and
that “whenever Eric [Ofray] gave things to me, Pepe [Díaz-Clavell] would always be present . . . .” When asked whether
Díaz-Clavell did “anything in relation to the drug deal?”,
Mendoza-Lebrón answered as follows, “Well, most of the time. I
can’t say all of the time because not all of the time was he
[Díaz-Clavell] with Eric but he was present during several
transactions that I did with Eric.” It is well-settled that such
testimony, establishing nothing beyond the fact that Díaz-Clavell
was present during drug transactions, without more, would not
make him culpable of conspiracy. See, e.g., United States v.
Guerrero, 114 F.3d 332, 342 (1st Cir. 1997) (“[P]roof of
sufficient participation in the crime, as well as knowledge of
it, is required to convict; the defendant’s ‘mere presence’ at
the scene of criminal activity is not enough.”); United States v.
Ocampo, 964 F.2d 80, 82 (1st Cir. 1992) (although defendant knew
that her residence was used by co-defendant for drug dealing,
government must also prove defendant’s participation); United
States v. Hyson, 721 F.2d 856, 862-63 (1st Cir. 1983). On re-direct examination, Mendoza-Lebrón did state that Díaz-Clavell
assisted Ofray “several times” in the latter’s drug dealing by
helping Ofray to stash cocaine. However, Mendoza-Lebrón’s
testimony lacked detail. This evidence, while certainly enough
to justify affirmance on review for legal sufficiency, was not so
conclusive as to convince us that the jury note error was
harmless beyond any reasonable doubt.
Mendoza-Lebrón’s testimony about Díaz-Clavell’s conduct
stood alone. No other Government witness observed Díaz-Clavell
assist Ofray in any narcotics transaction. No physical evidence
linked Díaz-Clavell to Ofray’s drug dealing. Villodas’ testimony
was similarly uncorroborated. There was no testimony by any
Government agent or any other witness to support Villodas’
account of the June 14, 2001 cocaine deal in La Copa Rota, and
there was no physical evidence that tied Díaz-Clavell to the drug
deal. In addition, the recording that Villodas made of the
cocaine transaction, which revealed the voices of both Villodas
and Díaz-Clavell, did not contain any statements relating to the
drug deal. The recording merely captured Villodas and Díaz-Clavell (Villodas’ second cousin) conversing about family
members, which was consistent with Díaz-Clavell’s own testimony
about his encounter with Villodas at La Copa Rota on June 14,
2001.
The testimonies of Agent Rivera and Agent Tirado,
portions of which the Government cites in support of its
assertion that evidence of Díaz-Clavell’s guilt was overwhelming,
provided no corroboration. Although Agent Rivera testified that
Díaz-Clavell acted as a drug runner for Ofray at La Copa Rota,
the statement was based not on his first-hand knowledge but
rather on information gleaned from the Government’s cooperating
witnesses –- namely, Mendoza-Lebrón and Villodas. In other
words, Agent Rivera’s statement constituted “overview” testimony
delivered at the outset of the Government’s case, in which the
case agent merely summarized the evidence that would later be
provided by Villodas and Mendoza-Lebrón. Similarly, Agent
Tirado’s testimony that, “[t]hrough the investigation that we
did,” Díaz-Clavell assisted Ofray in the drug trade did not serve
to corroborate the testimonies of the cooperators. Like Agent
Rivera’s testimony, Agent Tirado’s testimony -– which purportedly
provided additional support for the accounts of the cooperating
witnesses –- in fact derived entirely from and thus did no more
than summarize the testimonies of Mendoza-Lebrón and Villodas.
Agent Rivera’s and Agent Tirado’s conclusions regarding Díaz-Clavell’s role in the conspiracy served merely to bolster the
testimony of the cooperating witnesses.
Although Agent Tirado also testified that, following
the completion of the June 14, 2001 cocaine transaction at La
Copa Rota, Villodas stated to Tirado that Díaz-Clavell had given
the drugs to Villodas, this testimony cannot be deemed to be
corroborative. In considering the strength of the Government’s
case for the purposes of a harmless error analysis, we consider
only evidence that was properly admitted. See, e.g., United
States v. Zanghi, 189 F.3d 71, 83 (1st Cir. 1999) (weighing only
government’s admissible evidence in conducting harmless error
analysis); United States v. Ferreira, 821 F.2d 1, 8 (1st Cir.
1987) (finding error not to be harmless where “strength of the
admissible, circumstantial evidence is not ‘overwhelming’”)
(emphasis added).
In assessing the relative strength of the Government’s
case, it is also significant that Díaz-Clavell testified on his
own behalf. Díaz-Clavell stated that, although he spoke with his
cousin, Villodas, on June 14, 2001 at La Copa Rota, where he
worked and frequently visited even when not working, he did not
at that time or any other time deliver drugs to Villodas. Díaz-Clavell also testified, more generally, that although he
frequented La Copa Rota and Rumba’s Pub and associated with
Ofray, both socially and as a part-time employee, he did not
assist Ofray in conducting drug deals. On cross-examination, the
Government did not substantively impeach Díaz-Clavell’s
testimony. While the jury chose to credit the accounts of the
cooperating witnesses over the admittedly self-serving testimony
of the defendant, Díaz-Clavell’s countervailing testimony on his
own behalf is a factor in conducting the harmless error analysis.
Cf. Garcia-Morales, 382 F.3d at 18 (finding error harmless where
government’s case was strong but “defense was relatively weak,
consisting entirely of cross-examination of the prosecution’s
witnesses to challenge their credibility”); United States v.
Sepulveda, 15 F.3d 1161, 1182 (1st Cir. 1993) (finding error
harmless where defendant’s evidence was “a drop in the proverbial
bucket”).
It is also instructive to contrast the weight of the
Government’s evidence in this case with the prosecution’s proof
in Santana. There, we found that the evidence against Santana,
though legally sufficient, was not strong enough to render
harmless the admission of prejudicial extrinsic evidence. In
Santana, the evidence of the defendant’s participation in the
alleged narcotics activity consisted of the agent’s eyewitness
identification of Santana as a drug supplier as well as the
following facts:
(1) the November 8 drug transaction took place in a
vehicle registered in [Santana’s] name, and law
enforcement officers observed Santana twenty minutes
after the transaction standing next to the vehicle in
front of his business; (2) on February 23, 1995,
[Santana’s non-testifying co-defendant] called, then
visited, Santana’s business shortly after an unexpected
drug order was placed; and (3) on March 23, 1995, [the
non-testifying co-defendant] told [the government’s
confidential informant] that the crack cocaine would be
of good quality because his supplier was the “same guy,
red truck.”
Santana, 175 F.3d at 67. The evidence against Díaz-Clavell was
no more persuasive. As discussed, there was no admissible direct
evidence to corroborate the accounts of the two cooperating
witnesses.
Finally, the extrinsic information received by the jury
was especially prejudicial to Díaz-Clavell. The risk that Díaz-Clavell, a comparatively minor participant in the widespread
nine-year conspiracy, would be found guilty merely because of his
association with his co-defendants, against most of whom far more
evidence was adduced, was particularly high. Although a relative
paucity of evidence was presented against Díaz-Clavell, the
district court’s answer to Note #2 was likely to cause the jury
to disregard weaknesses in the Government’s case and result in a
finding of guilt simply by virtue of his association with the
numerous other individuals named in the Indictment. Thus, in
Díaz-Clavell’s case, there was more than a reasonable possibility
that the extrinsic information “tipped the scales in favor of the
government’s theory.” Rivera-Santiago, 107 F.3d at 967.
After considering the prejudicial nature of the
extrinsic information, as well as the relative strength of the
Government’s case against Díaz-Clavell, “it is impossible to
conclude beyond a reasonable doubt that the court’s error” in
informing the jury that thirty-seven absent co-defendants were in
prison for the conspiracy “did not contribute to the verdict.”
Santana, 175 F.3d at 67. Accordingly, we vacate Díaz-Clavell’s
conviction and remand for a new trial.
[9]
Zaragoza-Lasa
The evidence offered against Zaragoza-Lasa, while also
legally sufficient to support the conviction for drug conspiracy,
was not so overwhelming as to persuade us that the jury note
error was harmless in his case. Despite the Government’s
contention that overwhelming evidence established that Zaragoza-Lasa was “a drug supplier to Las Avispas,” comparatively little
evidence linked Zaragoza-Lasa to any drug transactions.
Zaragoza-Lasa was purported to be a major supplier of heroin to
the Avispas drug point at Las Vias. However, the only admissible
evidence of Zaragoza-Lasa’s involvement in any narcotics activity
was provided by the brief and uncorroborated testimony of two
cooperating witnesses, Francisco Cardona and Olga Lebrón-Ortiz,
both of whom identified Zaragoza-Lasa in court but knew him only
by his nickname “El Viejo Mode.” Cardona, who worked regular
shifts as a Las Avispas street dealer at Las Vias from 1996
through 1999, testified only that he saw Zaragoza-Lasa on
“several occasions,” or “three or four times,” arrive at Las
Vias, speak with the drug point’s manager, Javier Baez, and on
one occasion hand Baez a brick-shaped package wrapped in paper.
Cardona testified that a runner brought him what appeared to be
the paper that had wrapped the package and that cocaine residue
was present on the paper. Cardona also testified that the drug
supplies at Las Vias increased following Zaragoza-Lasa’s visits.
Lebrón-Ortiz also testified that she witnessed
Zaragoza-Lasa frequently in Borinquen from 1998 to 2002 and
witnessed Zaragoza-Lasa hand to Baez on one occasion a
transparent bag filled with violet-colored aluminum foil parcels.
Lebrón-Ortiz also provided the only direct evidence of Zaragoza-Lasa’s involvement with narcotics: namely, that on two occasions
she witnessed him giving tastes of heroin to street junkies in
Borinquen.
The above-mentioned testimony permits the inference
that Zaragoza-Lasa supplied heroin to Las Vias. It is quite
another matter, however, to conclude that this evidence rendered
harmless beyond any reasonable doubt the prejudicial extrinsic
information to which the jury was exposed. As with Díaz-Clavell,
the mere fact that Zaragoza-Lasa was present in a known drug area
(Las Vias) and associating with an Avispas member (Baez) is not
enough. Nor is there much heft in the fact that both cooperating
witnesses observed Zaragoza-Lasa hand suspicious packages to
Baez. Although an inference can be drawn that Zaragoza-Lasa
delivered heroin to Baez, because the violet-colored aluminum
packaging was consistent with the type of packaging Las Avispas
typically used for heroin, Lebrón-Ortiz did not actually observe
Zaragoza-Lasa possess or distribute heroin. Similarly, Cardona’s
testimony about Zaragoza-Lasa’s handing Baez a suspicious package
on one occasion and Cardona’s statement that more drugs were
available at Las Vias after Zaragoza-Lasa’s visits do not amount
to conclusive evidence of Zaragoza-Lasa’s guilt.
The direct evidence of Zaragoza-Lasa’s drug activity,
consisting only of the fact that Zaragoza-Lasa on two occasions
provided heroin samples to Borinquen junkies, also was less than
overwhelming. While this evidence established that Zaragoza-Lasa
had some involvement in narcotics activity, it simply does not
qualify as strong evidence of Zaragoza-Lasa’s participation in
the charged narcotics conspirascy.
Moreover, as with Díaz-Clavell, there was no physical
evidence to corroborate the cooperating witnesses’ testimony.
Zaragoza-Lasa was not recorded on any monitoring device. There
was no physical evidence seized from him. He was not alleged to
have taken part in any Government-arranged undercover drug
purchase. Although Agents Rivera and Tirado testified
confidently about Zaragoza-Lasa’s role as a major heroin supplier
to Las Avispas drug points, including Las Vias, their testimonies
once again derived entirely from, in the words of Agent Rivera,
“information that we obtained from informants who collaborated in
the investigation and informants of the Puerto Rico Police
Department . . . .” Again, as discussed above, this purportedly
corroborating evidence amounts to nothing more than case agent
“overview” testimony that merely summarizes the first-hand
accounts of the cooperating witnesses. As both Agents Rivera and
Tirado conceded on cross-examination, their conclusions about
Zaragoza-Lasa’s culpability were not based on their personal
knowledge.
Again, our decision in Santana provides illumination.
The Government’s case against Zaragoza-Lasa, as against Díaz-Clavell, was not as strong as the case presented against Santana,
where we found harmful error. Unlike Santana, the Government’s
proof against Zaragoza-Lasa did not include a government agent’s
eyewitness identification or circumstantial evidence that closely
linked the defendant to an undercover drug purchase. Here,
again, the evidence consisted solely of the uncorroborated
testimony of two cooperating witnesses. Further, the Government
offered more ample, direct evidence against López-Soto, Ofray,
Cruz-Pereira, and absent members of the Avispas conspiracy named
in the Indictment. As discussed above, the danger that a
defendant, against whom comparatively less evidence was
introduced, would be found guilty by association with more
evidently culpable co-defendants was high, and was made
correspondingly higher by the prejudicial nature of the extrinsic
information imparted to the jury.
As with Díaz-Clavell, in light of the prejudicial
nature of the extrinsic information given to the jury and the
relative strength of the Government’s case against Zaragoza-Lasa,
we cannot conclude with any assurance that the extrinsic
information did not contribute to the jury’s determination that
Zaragoza-Lasa was guilty. Accordingly, we vacate Zaragoza-Lasa’s
conviction and remand for a new trial.
[10]
Individual Claims
I. Insufficiency of Evidence of Conspiracy
Appellant Cruz-Pereira claims that the district court
erred in denying his motion for a judgment of acquittal pursuant
to Rule 29 of the Federal Rules of Criminal Procedure because the
Government presented insufficient evidence of his participation
in the charged conspiracy. Review of a district court’s denial
of a Rule 29 motion is de novo. United States v. Hernandez, 218
F.3d 58, 64 (1st Cir. 2000). “Challenges to the sufficiency of
the evidence and to the denial of the motion for judgment of
acquittal raise a single issue. . . .” Id. at 64 n.4 (quoting
United States v. Morillo, 158 F.3d 18, 22 (1st Cir. 1998)
(internal quotation marks omitted)). A district court’s denial
of a motion for acquittal must be affirmed “unless the evidence,
viewed in the light most favorable to the government, could not
have persuaded any trier of fact of the defendant’s guilt beyond
a reasonable doubt.” United States v. Paradis, 802 F.2d 553, 559
(1st Cir. 1986). The reviewing court cannot weigh evidence or
make credibility judgments. See United States v. Ortiz, 966 F.2d
707, 711 (1st Cir. 1992). The court must reject only “those
evidentiary interpretations . . . that are unreasonable,
insupportable, or overly speculative, and must uphold any verdict
that is supported by a plausible rendition of the record.”
Hernandez, 218 F.3d at 64 (quoting United States v. Spinney, 65
F.3d 231, 234 (1st Cir. 1995) (internal quotation marks
omitted)).
To prove Cruz-Pereira’s culpability of the charged
conspiracy, the Government was required to show “the existence of
a conspiracy, the defendant’s knowledge of the conspiracy, and
the defendant’s voluntary participation in the conspiracy.”
United States v. Gomez-Pabon, 911 F.2d 847, 852 (1st Cir. 1990).
To establish that Cruz-Pereira belonged to and participated in
the drug conspiracy, the Government must show two kinds of
intent: “intent to agree and intent to commit the substantive
offense.” Id. at 853 (quoting Rivera-Santiago, 872 F.2d at 1079)
(internal quotation marks omitted). The Government was not
required to prove that each co-conspirator knew about or had
contact with all other members of the conspiracy or knew details
about and participated in every act in furtherance of the
conspiracy. United States v. Martinez-Medina, 279 F.3d 105, 113
(1st Cir. 2004); see also Rivera-Santiago, 872 F.2d at 1079 (“A
defendant may culpably join a drug-trafficking conspiracy without
knowing the full extent of the enterprise or the identities of
all the coconspirators.”).
Cruz-Pereira argues that, although the Government
presented evidence of his drug sales to an undercover agent and
an FBI informant, there was no evidence presented that connected
Cruz-Pereira with Las Avispas or showed that he conspired with
anyone (other than Government agents) to sell drugs. Thus, the
defense claims that because the evidence proved only that Cruz-Pereira “worked alone,” there was insufficient evidence to
convict him of conspiracy.
As discussed above, the Government presented evidence
that Cruz-Pereira not only sold drugs to Agent Rosa-Ferrer and
Informant Villodas, but also that Cruz-Pereira engaged in crack
transactions with Las Avispas. Specifically, Mendoza-Lebrón
testified that he and his cousin, Wilson –- an established
Avispas dealer –- sold crack to both Cruz-Pereira and Cruz-Pereira’s co-defendant, Carlos Escobar Figueroa, at the drug
points Cruz-Pereira and Escobar operated at Puente Los Jobos,
from 1993 until Mendoza-Lebrón’s arrest in 1999. Mendoza-Lebrón
also testified that he sold drugs to José Cabezón, the leader of
Las Avispas. Cruz-Pereira’s regular drug purchases from Wilson,
an established Avispas member, provided the jury with legally
sufficient proof of Cruz-Pereira’s participation in the charged
conspiracy. In addition, the jury reasonably could have inferred
a link between Cruz-Pereira and Las Avispas arising from the fact
that Cruz-Pereira bought crack from a dealer (Mendoza-Lebrón) who
acted as a common supplier to other members of Las Avispas -–
namely, Escobar Figueroa and Cabezón. In sum, the Government
presented evidence legally sufficient to support the jury’s
finding that Cruz-Pereira was guilty of the charged conspiracy.
II. Purported Judicial Bias
López-Soto claims that the trial judge’s open hostility
and bias against his trial counsel, Attorney Inserni, rendered
his trial fundamentally unfair. As evidence of bias, López-Soto
points out that the trial court, among other things, interrupted
Inserni during opening and closing statements; told Inserni to
“shut up” during a conference at sidebar and made demeaning
comments about Inserni’s performance, including his use of notes;
asked several leading questions of witnesses; and refused to
pause trial proceedings while Inserni left court to use the
restroom.
“It is well-established that a judge is not a mere
umpire; he is ‘the governor of the trial for the purpose of
assuring its proper conduct,’ and has a perfect right -- albeit a
right that should be exercised with care -- to participate
actively in the trial proper.” Logue v. Dore, 103 F.3d 1040, 1045
(1st Cir. 1997) (quoting Quercia v. United States, 289 U.S. 466,
469 (1933)). Where, as here, an appellant claims that the trial
judge overstepped his bounds and displayed judicial bias to the
extent that the trial was rendered fundamentally unfair, the
appellant must show that the judge’s actions resulted in “serious
prejudice.” United States v. Cunan, 152 F.3d 29, 37 (1st Cir.
1998). In reviewing the record for alleged judicial bias, we
“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.
Candelaria-Silva, 166 F.3d 19, 35 (1st Cir. 1999) (quoting United
States v. Montas, 41 F.3d 775, 779 (1st Cir. 1994)). The Supreme
Court has held that “expressions of impatience, dissatisfaction,
annoyance, and even anger . . . are within the bounds of what
imperfect men and women . . . sometimes display. A judge’s
ordinary efforts at courtroom administration -- even a stern and
short-tempered judge’s ordinary efforts at courtroom
administration -- remain immune” to claims of judicial bias.
Liteky v. United States, 510 U.S. 540, 555-56 (1994); see also
Morales v. INS, 208 F.3d 323, 327 (1st Cir. 2000).
Here, López-Soto has identified several moments during
the trial which, at most, demonstrate the court’s occasional
impatience or frustration with Attorney Inserni. The isolated
instances cited by López-Soto do not amount to judicial bias, and
López-Soto has not come close to showing how the purportedly
improper conduct of the trial court resulted in serious
prejudice. Although the trial judge did interrupt Inserni during
opening and closing arguments, the interruptions were almost
invariably interposed for a proper purpose. For example, during
Inserni’s opening statement, when Inserni stated that his client
was being charged with the murder of Santito, the district court
quite rightly broke in to instruct the jury that López-Soto was
not on trial for murder.
To the extent that the trial judge expressed
frustration with Inserni or rebuked him, almost all of the
remarks at issue –- including the court’s imploring Inserni to
“shut up and let me finish” –- were spoken at sidebar, out of the
jury’s presence. See Candelaria-Silva, 166 F.3d at 35 (noting
that “[o]n several occasions, this Court has held that a trial
judge’s frustration displayed at sidebar does not deprive a
defendant of a fair trial” and collecting cases). López-Soto has
not identified any statement that the court made to Inserni in
the jury’s presence, including the court’s remark about Inserni’s
notes, that was so hostile or demeaning as to rise to the level
of judicial bias. See United States v. Rodriguez-Rivera, 473
F.3d 21, 27-28 (1st Cir. 2007).
The questions that the district court asked certain
witnesses also did not constitute judicial testifying or blatant
bias against López-Soto; rather, on the relatively few occasions
when the district court questioned a witness, it was usually to
clarify a witness’s answer regarding the time frame or location
of events, for example, about which the witness was testifying.
A trial court’s sua sponte questioning of witnesses, to clarify
counsel’s questions or the witness’s answer “is generally an
appropriate role for the judge to play.” Id. at 27. Finally,
although the trial court’s refusal to continue proceedings for
five minutes so that Inserni could use the restroom was not
especially accommodating, the failure to grant the brief break
did not result in even slight prejudice to López-Soto, because
the witness testifying at that time was not providing any
evidence that was relevant to López-Soto.
In sum, the few instances of the trial court’s
frustration, cherry-picked from the voluminous record of a nearly
two month-long trial, do not reveal judicial bias, let alone the
serious prejudice against the Appellant that he must establish to
prevail on a claim of judicial bias. López-Soto’s claim of
judicial bias is without merit.
III. Ineffective Assistance of Counsel
López-Soto claims that he received ineffective
assistance of counsel because his trial counsel, Attorney
Inserni, revealed to the jury in opening argument that López-Soto
was being prosecuted in the local court for the murder of
Santito, a rival drug dealer. López-Soto asserts that Inserni’s
commentary about the murder, which was neither charged in the
Indictment nor listed as an overt act, opened the door to permit
the government to introduce highly prejudicial testimony about
the murder.
“We have held with a regularity bordering on the
monotonous that fact-specific claims of ineffective assistance
cannot make their debut on direct review of criminal convictions,
but, rather, must originally be presented to, and acted upon by,
the trial court.” United States v. Mala, 7 F.3d 1058, 1063 (1st
Cir. 1993). This is because an appellate court usually is ill-equipped to handle the fact-specific inquiry that such claims
often require. See id. “In addition, the insights of the trier,
who has seen and heard the witnesses at first hand and watched
the dynamics of the trial unfold, are often of great assistance.”
United States v. Moran, 393 F.3d 1, 10 (1st Cir. 2004). In the
exceptional case, however, where the record is sufficiently
developed, and critical facts are not in dispute, such claims may
be reviewed. United States v. Torres-Rosario, 447 F.3d 61, 64
(1st Cir. 2006).
This is not a case that presents an exception to the
well-settled rule. No claim of ineffective assistance was raised
in the trial court. Although there was ample colloquy relating
to Attorney Inserni’s decision to discuss the fact that local
charges were pending against López-Soto for the murder of
Santito, we cannot tell from the record whether Inserni’s
decision to discuss the uncharged murder was a legitimate
tactical decision at the time that it was made or deficient
performance in violation of López-Soto’s right to effective
assistance of counsel. See Moran, 393 F.3d at 10-11 (“Although
hindsight is always 20/20, we cannot tell from this record
whether [trial counsel’s decision], when made, was a calculated
stratagem or a mere oversight.”). In addition, it is the trial
court, rather than the appellate court, that is in the best
position to assess whether Inserni’s decision, if it was in fact
constitutionally deficient, resulted in prejudice to López-Soto’s
substantial rights, as required under Strickland v. Washington,
460 U.S. 668, 687 (1984). See Moran, 393 F.3d at 11. Thus, we
decline to review López-Soto’s claim. Instead, we dismiss the
claim without prejudice to its reassertion, should the Appellant
so choose, in a proceeding under 28 U.S.C. § 2255. See id.IV. Evidence of Santito’s Murder
Cruz-Pereira argues that he was prejudiced by evidence
that López-Soto confessed to the murder of Santito. He protests
that evidence of this murder was unrelated to the conspiracy, not
charged in the Indictment, and not related to Cruz-Pereira, and
caused a “spillover” effect that was highly prejudicial. Cruz-Pereira asserts that admission of evidence of Santito’s murder
violated Rules 403 and 404(b) of the Federal Rules of Evidence.
We review the district court’s decision whether to
admit evidence pursuant to Rule 404(b) for an abuse of
discretion, and “will reverse a district court’s Rule 403
balancing ‘only in exceptional circumstances.’” United States v.
Manning, 79 F.3d 212, 217 (1st Cir. 1996) (quoting United states
v. Garcia, 983 F.2d 1160, 1173 (1st Cir. 1993)). Further, the
court will treat any error in admitting Rule 404(b) evidence as
harmless if it determines that the disputed evidence did not
contribute to the verdict. United States v. Levy-Cordero, 156
F.3d 244 (1st Cir. 1998).
The court did not abuse its discretion in allowing
evidence of Santito’s murder. First, Rule 404(b) is not
implicated in this case. As the Government notes, the Indictment
charged that the defendants engaged in violence to carry out the
drug conspiracy. The Government presented evidence of the drug
wars between Las Avispas and Las Jibaritos and other rival gangs,
as well as evidence that a number of individuals acted as
enforcers for the drug organizations. In particular, the
Government charged in the Indictment that López-Soto acted as an
enforcer and presented evidence at trial to establish his role as
a “hit man” for Las Avispas. Thus, evidence that López-Soto
murdered the leader of a rival drug gang is direct proof of the
means used to carry out the conspiracy, and is not “other act”
evidence that is subject to Rule 404(b). See, e.g., United States
v. McGuire, 389 F.3d 225, 229 (1st Cir. 2004) (noting that
evidence that defendant pistol-whipped drug customer whom
defendant thought had “set him up” was direct proof of
defendant’s participation in conspiracy and thus was not other
act evidence that required analysis under 404(b)).
Under the Rule 403 analysis, the probative value of the
evidence was not substantially outweighed by the danger of unfair
prejudice. As discussed, the evidence was probative of López-Soto’s participation in the conspiracy and of the means used by
the members of Las Avispas to further the drug ring’s goals.
Further, the trial court instructed the jury that, although it
could consider evidence of Santito’s murder “as part of the
manner or means used by members of the conspiracy to carry out
the objects of the conspiracy,” the jury could not consider the
murder as evidence that any of the Appellants, apart from López-Soto, participated in the conspiracy. The trial court’s limiting
instruction helped to safeguard the jury’s consideration of the
evidence against the claimed “spillover” effect. See United
States v. Sabatino, 943 F.2d 94, 96-97 (1st Cir. 1991) (trial
court’s limiting instructions may safeguard against prejudicial
spillover effect). In sum, the probative value of the evidence
was not substantially outweighed by its prejudicial effect.
Admission of evidence relating to Santito’s murder was proper.V. Restriction of Ofray’s Cross Examination of Govt. Witness
Ofray claims that the district court erred by (a) not
granting his Rule 33 motion for a new trial on the ground that
the court improperly precluded Ofray from introducing evidence of
a Government witness’s bias and motive; and (b) limiting Ofray at
trial from cross-examining the Government’s witness as to bias
and motive.
The Government’s witness, Agent Candelaria, testified
that, in the early morning of July 14, 2002, he was sleeping at
his residence when he was awakened by a detonation that sounded
like a gunshot. Candelaria called the police and then, from his
window, observed Ofray on the street outside Rumba’s Pub, holding
a weapon. Candelaria then saw Ofray walk up to a parked van and
place the weapon inside. Based on the information provided by
Candelaria, police later recovered the weapon, an automatic
pistol, from the van. Ofray was arrested hours later, and at the
time of his arrest, a second weapon was recovered from his duffel
bag.
During cross-examination, Ofray’s counsel sought to
question Candelaria about alleged family ties and hostile
relations that existed between him and Ofray. Specifically,
Ofray wished to show that Candelaria had known Ofray a long time
because of the latter’s ownership of Rumba’s Pub and that the two
men were in fact related, namely because Candelaria’s brother
had a son with Ofray’s sister – in other words, that the two men
shared a nephew. Ofray wished to introduce “evidence of family
troubles between [Ofray’s] sister and the witness’ brother to
impeach the witness as to bias and motivation to cause harm to
[Ofray] by fabricating a case against him.” After hearing the
proffer of testimony to be elicited from Candelaria, the district
court precluded Ofray’s counsel from questioning Candelaria about
the allegedly hostile family relationship. In addition to
restricting the scope of Ofray’s cross examination of Candelaria,
the trial court precluded the defense from calling in its case-in-chief Agent Irving Ofray, who Ofray’s counsel proffered “was
being called to testify about bias and motivation on the part of
the Government agents to induce witnesses to fabricate evidence
against the defendant-appellant.”
Denial of a Rule 33 motion for a new trial is reviewed
for abuse of discretion. United States v. Díaz, 300 F.3d 66, 78
(1st Cir. 2002). As a threshold matter, the Government points
out that the district court never ruled on Ofray’s Rule 33
motion. Accordingly, we remand Ofray’s Rule 33 motion to the
district court.
Thus, the remaining claim is that the court erred by
restricting the scope of cross-examination. A court’s limitation
of the scope of cross-examination is reviewed de novo to
determine whether the defendant “was afforded a reasonable
opportunity to impeach adverse witnesses” in conformity with the
Confrontation Clause. United States v. Martinez-Vives, 475 F.3d
48, 53 (1st Cir. 2007). Under the Confrontation Clause, a
defendant has the right to cross-examine the government’s witness
about his bias against the defendant and his motive for
testifying. See Delaware v. Van Arsdall, 475 U.S. 673, 679
(1986). Nevertheless, the right to cross-examination is not
without limits, and “trial judges retain wide latitude insofar as
the Confrontation Clause is concerned to impose reasonable limits
on such cross-examination based on concerns about, among other
things, harassment, prejudice, confusion of the issues, the
witness’ safety, or interrogation that is repetitive or only
marginally relevant.” Id. “The trial court’s latitude in shaping
such restrictions is ‘wide.’” United States v. Vega Molina, 407
F.3d 511, 523 (1st Cir. 2005) (quoting Van Arsdall, 475 U.S. at
679). “[R]estrictions on cross-examination regarding bias are
erroneous only if they are manifestly unreasonable or overbroad.”
United States v. Callipari, 368 F.3d 22, 36 (1st Cir. 2004),
vacated on other grounds, 543 U.S. 1098 (2005) (quoting United
States v. Gonzalez-Vazquez, 219 F.3d 37, 45 (1st Cir. 2000)
(internal quotation marks omitted)). “To establish that the
district court has abused its discretion, the defendant must show
that the limitations imposed were clearly prejudicial.” United
States v. Williams, 985 F.2d 634, 639 (1st Cir. 1993). “It
follows logically, therefore, that should an error be revealed,
we may affirm the conviction if we are confident that it was
harmless beyond a reasonable doubt.” Martinez-Vives, 475 F.3d at
53.
Here, the district court precluded the proffered cross
examination primarily on the ground that it was “collateral
matter.” The court stated that cross examination as to
Candelaria’s bias would be irrelevant, in light of the fact that
other evidence corroborated Candelaria’s account, namely the
testimony of a police officer who recovered a weapon in the van
parked outside of Rumba’s Pub several hours after Candelaria
claimed to have witnessed Ofray deposit the weapon in the van.
The fact that Candelaria’s testimony was partially corroborated
by the subsequent testimony of another officer, however, did not
provide an adequate basis for the court’s preclusion of the cross
examination sought by Ofray. While it is true that police
recovered a firearm from the exact place where Candelaria
testified the firearm was deposited, there was no corroboration
of Candelaria’s testimony that it was Ofray, rather than another
individual, who placed the weapon in the van. In other words,
cross examination of Candelaria as to his bias against Ofray
could have allowed the jury to infer that Candelaria observed an
individual other than Ofray possess a gun and then –- because of
hostility between him and Ofray –- pinned the act of firearm
possession on Ofray. Although cross examination of Candelaria
would indeed have required a certain amount of delving into
collateral matter, the issue of Candelaria’s possible bias
against Ofray was a relevant fact for the jury to consider in
deciding whether to credit Candelaria’s testimony. It was thus
error for the trial judge to preclude the defense from attempting
to show that there was a familial tie between Candelaria and
Ofray, and that bad blood existed between the two men. This was
clearly evidence of Candelaria’s motive and bias for providing
inculpating testimony.
[11]
Any error, however, was harmless, because the jury was
confronted with other testimony that established that Ofray sold
large quantities of drugs and regularly carried weapons in
connection with his role as the operator of several drug points.
Although Ofray’s possession of a weapon on July 14, 2002, was an
overt act charged in the Indictment, the jury could have chosen
to disbelieve all of Candelaria’s testimony about the gun
possession, and even have disbelieved the testimony of the police
officer who discovered the gun in the van, and still found Ofray
to be guilty of the charged drug conspiracy. As discussed above,
the Government’s proof of Ofray’s participation in the charged
conspiracy was overwhelming. This was not a case where the
success of the Government’s proof turned on the jury’s
determination of Candelaria’s credibility. Cf. United States v.
Mulinelli-Navas, 111 F.3d 983, 993 (1st Cir. 1997) (finding
erroneous limitation of cross examination not harmless where
proof of charges relied solely on government witness’s testimony
and allowing cross examination to proceed could have allowed jury
to discredit witness’s testimony). Here, Ofray’s theory of the
case –- urged in cross examination of most of the Government’s
witnesses, in opening statement, and in closing argument –- was
that the Government had failed to present credible evidence of
any connection between Ofray and Las Avispas. Ofray’s theory of
defense, although ultimately unsuccessful, did not suffer as a
result of his inability to impeach Candelaria’s testimony
regarding Ofray’s possession of a firearm on a single occasion.
See United States v. Cunan, 152 F.3d 29, 38 (1st Cir. 1998)
(finding no error in court’s restriction of cross examination
where restrictions did not impede assertion of theory of
defense).
In sum, the trial court’s decision to limit the cross
examination of Candelaria, even if erroneous, was harmless in
light of overwhelming evidence of Ofray’s guilt.
VI. Sentencing Errors(A) Ofray
At Ofray’s sentencing hearing on February 25, 2005, the
district court, after calculating the applicable sentencing
guidelines range as 188 to 235 months, imposed a “middle-of-the-Guidelines” sentence of 200 months. Ofray in essence asserts a
two-part, procedural challenge to his sentence. First, he claims
that the district court erroneously treated the sentencing
guidelines as mandatory, rather than advisory. Second, Ofray
maintains that the court failed to consider the relevant
sentencing factors set forth in 18 U.S.C. § 3553(a).
Where, as here, an appellant challenges the procedural
aspects of his sentencing, our review is for abuse of discretion.
See Gall v. United States, 128 S. Ct. 586, 597 (2007). We
determine whether the court made errors “such as failing to
calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the [18
U.S.C.] § 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen
sentence -- including an explanation for any deviation from the
Guidelines range.” United States v. Politano, 522 F.3d 69, 72
(1st Cir. 2008) (quoting Gall, 128 S. Ct. at 597) (internal
quotation marks omitted).
Ofray’s claim that the district court erroneously
treated the guidelines as mandatory, rather than advisory, can be
disposed of quickly. Here, it is evident from the sentencing
transcript that the district court, and all parties, were well
aware that the sentencing guidelines were only advisory. As the
Government points out, Ofray’s own counsel stated on the record
at the sentencing hearing that “the guidelines are only advisory
for this court.” The district court also stated as follows:
“The court is using the guidelines as advisory . . . .” There is
no doubt, therefore, that the district court imposed the sentence
under the correct understanding that the sentencing guidelines
are advisory, not mandatory.
Similarly, it is evident that the district court did
not abuse its discretion in failing to consider the relevant
sentencing factors set forth in § 3553(a). While the court did
not expressly refer to the statute or recite the factors, it
provided a reasoned and adequate explanation for the sentence
that was imposed. See United States v. Garcia-Carrasquillo, 483
F.3d 124, 132 (1st Cir. 2007) (“An important prerequisite to our
reasonableness analysis is the district court’s reasoned
explanation for the sentence imposed . . . .”). We “allow a
good deal of leeway” in reviewing the adequacy of a district
court’s explanation. United States v. Gilman, 478 F.3d 440, 446
(1st Cir. 2007). Ultimately, we defer to “the district court’s
sentence as long as the court has provided a plausible
explanation, and the overall result is defensible.” United States
v. Dixon, 449 F.3d 194, 204 (1st Cir. 2006).
Here, the district court properly began the sentencing
procedure by determining Ofray’s adjusted offense level. The
court then stated that, although it was aware of the advisory
nature of the guidelines, “nevertheless I believe that the
guidelines do provide the factors which the court should consider
in this sentence, in which [sic] also provides a reasonable
sentence in view of the evidence in this case.” The court then
found that the applicable sentencing guidelines range for Ofray,
which is uncontested on this appeal, was a term of imprisonment
of 188 to 235 months and a range for a monetary fine of $20,000
to $4 million. Before imposing the 200-month prison term and the
below-guidelines fine of $10,000, the district court gave the
following explanation for the sentence:
The court notes that the defendant[’]s substantial
participation in furtherance of an extensive and
violent drug trafficking enterprise and its detrimental
consequences to society, which [sic] warrants a
sentence at the middle of the guideline range.
There is no indication that the district court failed
to consider, or accord sufficient weight, to the relevant
sentencing factors. The court emphasized the scope and violent
nature of the conspiracy, Ofray’s extensive role within it, and
the “detrimental consequences to society.” The court also stated
that the reasonableness of a sentence at the middle of the
guidelines range was justified by the evidence presented at
trial. The reasonableness of the within-guidelines sentence is
strongly supported by our review of the overall record. As
discussed above, the evidence clearly established that Ofray sold
large quantities of narcotics from various drug points that he
owned and operated over the course of many years, and that he
regularly carried weapons in connection with his narcotics
activity. While the district court’s explanation for a “middle
of the guideline range” sentence could have been more
comprehensive, the court’s sentence was supported by a plausible
explanation and constituted an overall defensible result.
Accordingly, we find that Ofray “has not carried the heavy burden
of proving that his within-the-range sentence was unreasonable or
an abuse of discretion.” United States v. Innarelli, 524 F.3d
286, No. 06-2400, 2008 U.S. App. LEXIS 9242, at *14 (1st Cir.
Apr. 29, 2008).
(B) Cruz-Pereira
Cruz-Pereira argues that the evidence was insufficient
to support the district court’s imposition of a two-level upward
adjustment to his base offense level for his role as an
organizer, leader, manager, or supervisor of other participants
in the drug-selling enterprise. See U.S.S.G. § 3B1.1(c).
We review a sentencing court’s findings of fact for
clear error, while questions of law involved in sentencing
determinations are reviewed de novo. See United States v. Ramos-Paulino, 488 F.3d 459, 463 (1st Cir. 2007). “A question about
whether the evidence is sufficient to support a particular
guideline determination is a question of law and, therefore,
engenders de novo review.” Id. “Where the undisputed facts
support more than one plausible inference, the sentencing court’s
choice among supportable alternatives cannot be clearly
erroneous.” United States v. Garcia, 34 F.3d 6, 10 (1st Cir.
1994).
The sentencing guidelines provide for an upward
adjustment to a defendant’s base offense level due to the
relative importance of his role in the offense. United States v.
Cruz, 120 F.3d 1, 3 (1st Cir. 1997) (en banc) (citing U.S.S.G. §
3B1.1(c)). For a sentencing court to apply an upward adjustment
pursuant to section 3B1.1(c), the evidence must show that the
defendant “exercised control over, organized, or was otherwise
responsible for superintending the activities of” at least one
other participant in a criminal activity on at least one
occasion. Garcia-Morales, 382 F.3d at 19 (quoting Cruz, 120 F.3d
at 3) (internal quotation marks omitted); accord United States v.
Voccola, 99 F.3d 37, 44 (1st Cir. 1996) (finding that single
directed transaction is sufficient to support imposition of
enhancement). It is not enough, however, that the defendant
merely controlled, organized, or managed criminal activities;
rather, he must instead control, organize, or manage criminal
actors. Ramos-Paulino, 488 F.3d at 464; see also United States v.
Thiongo, 344 F.3d 55, 63 (1st Cir. 2003) (“Section 3B1.1 does not
apply to a defendant who merely organizes or supervises a
criminal activity that is executed without the aid of others.”).
Cruz-Pereira argues that there was no evidence in the
record that permitted the district court to find that he
supervised, managed, organized, led or otherwise exercised
control over any non-government actor in the narcotics activity
at issue. He maintains that the evidence established only that
he acted alone in operating the Santa Ana drug point, located at
his house, and the drug point located at his bar, La Ponderosa.
The Government counters that the court’s finding was
based on legitimate inferences. Specifically, the Government
points to the fact that Informant Villodas testified that other
people were present in the backyard of Cruz-Pereira’s house when
Villodas made the controlled purchase of crack, and that the
audio recording of the transaction, though of poor quality,
revealed another voice or voices in the background. This
evidence, the Government contends, permitted the inference that
one or more drug dealers, apart from Cruz-Pereira, sold drugs out
of Cruz-Pereira’s house, over whom Cruz-Pereira necessarily
exerted control. The Government also cites testimony to the
effect that the drug point was open twenty-four hours a day,
which also permitted the court to infer that others assisted
Cruz-Pereira in his narcotics activity. Finally, the Government
claims that Cruz-Pereira is eligible for the enhancement solely
on the basis of the fact that he exerted control over Las
Avispas’ property, by virtue of his “management responsibility
over the Las Avispas Santa Ana drug point,” from which Cruz-Pereira made the sales to the undercover agent and FBI informant.
There was no sufficient basis for the court’s
imposition of a two-level role-in-offense enhancement under
section 3B1.1(c). Where, as here, the basis for an enhancement
pursuant to section 3B1.1(c) is not “apparent from the record, .
. . the sentencing court, in order to apply such an enhancement,
must make a specific finding which identifies those being managed
‘with enough particularity to give credence to the upward
adjustment.’” United States v. Medina, 167 F.3d 77, 80 (1st Cir.
1999) (quoting United States v. McDowell, 918 F.2d 1004, 1011
(1st Cir. 1990)). Here, the district court at sentencing
determined that Cruz-Pereira exercised control over others in
conducting drug activity because the drug point at Santa Ana
operated twenty-four hours each day and because the audio
recording made by Informant Villodas during his controlled
purchase of crack in Cruz-Pereira’s house revealed another voice
or voices.
The district court drew the plausible inference, based
on the audio recording made by Villodas and the fact of the drug
point’s round-the-clock operation, that others must have been
present while Cruz-Pereira sold drugs or that at least one other
person played a role in the operation of the drug point.
However, the record is devoid of any evidence to show that Cruz-Pereira exercised control over any individual. Even if the
district court reasonably inferred that Cruz-Pereira associated
with others in operating the drug point, there was no basis for
the finding that the Appellant oversaw their activities. See
Ramos-Paulino, 488 F.3d at 464. In Ramos-Paulino, where we
remanded for re-sentencing, there was testimony that the
defendant –- who was convicted of alien smuggling –- acted with
the assistance of an individual named “Domingo,” who helped the
defendant collect payment and information from, and provide false
documents for, the aliens. We concluded that this testimony,
which afforded the sole arguable basis for the sentencing court’s
finding that the defendant exercised control over the criminal
activity of another individual, provided an insufficient basis
for the imposition of an upward enhancement. We explained that
“[a]lthough [the defendant] worked hand in glove with the
mysterious Domingo, there is nothing to show either that he was
her subordinate in the chain of command or that she oversaw his
activities.” Id.
Here, too, there was no basis for the district court’s
finding that Cruz-Pereira exercised any control over or oversaw
the activities of any individual who participated in narcotics
activity at the Santa Ana drug point. There was no evidence, for
example, of any communication between Cruz-Pereira and any other
individual from which Cruz-Pereira’s supervisory role could be
inferred. Nor was there any evidence that any other person
assisted Cruz-Pereira in the undercover purchases made by
Villodas or Agent Rosa-Ferrer, or that any other individual
performed any acts at Cruz-Pereira’s express or implied
direction. The mere fact that Cruz-Pereira was characterized as
an owner of the Santa Ana drug point, without more, does not
justify the imposition of the role-in-the-offense enhancement.
See Medina, 167 F.3d at 80 (citing United States v. Graham, 162
F.3d 1180 (D.C. Cir. 1998)); United States v. Sostre, 967 F.2d
728, 733 (1st Cir. 1992) (a finding that defendant played an
“essential role” in drug conspiracy insufficient to warrant
enhancement under section 3B1.1).
The Government’s argument that Cruz-Pereira qualified
for the upward enhancement on the basis of his control over the
“the property, assets or activities of a criminal organization,”
is squarely foreclosed by our holding in Ramos-Paulina.
[12]
As we
explained in that case:
[T]he management of criminal activities (as opposed to
the management of criminal actors) may ground an upward
departure but not an upward role-in-the-offense
adjustment. Although both may lead to similar
outcomes, there is an important structural distinction
between sentencing enhancements and sentencing
departures. For present purposes, then, we are
constrained by the unambiguous case law holding that
management of criminal activities, standing alone, does
not constitute a basis for a role-in-the-offense
enhancement under section 3B1.1.
Ramos-Paulino, 488 F.3d at 464 (citations omitted). Thus, the
two-level role-in-the-offense enhancement imposed by the district
court cannot be based on a finding that Cruz-Pereira managed
property belonging to Las Avispas.
Accordingly, because the district court’s imposition of
a two-level upward enhancement pursuant to section 3B1.1(c) was
based on legally insufficient evidence, we vacate Cruz-Pereira’s
sentence and remand for re-sentencing. Here, however, as in
Ramos-Paulino, we
leave open the full gamut of possibilities -- for
example, the district court, if it can identify a
participant or participants under the [Cruz-Pereira’s]
sway, may reimpose the managerial role enhancement; or
it may essay an upward departure for management of
criminal activities; or it may simply eschew any
further embellishments and impose what it deems to be a
reasonable sentence. We take no view either as to the
course to be followed or as to the duration of the
sentence to be imposed. In the first instance, these
are matters for the sentencing court.
Id.
(C) López-Soto
López-Soto claims that his sentence of forty years (480
months), which constituted an upward variance of greater than two
and one half times the maximum recommended sentence under the
applicable guidelines range, was unreasonable; that he was
deprived of his right to due process by the retroactive
application of Booker’s “remedial” holding; and that the court
failed to give him the required notice of the upward variance
under Rule 32(h) of the Federal Rules of Criminal Procedure. “We review a district court’s sentence for
reasonableness, which involves a procedural as well as a
substantive inquiry.” Politano, 522 F.3d at 72 (citing Gall, 128
S. Ct. at 597). In reviewing the reasonableness of a particular
sentence, we afford the district court broad discretion. “[A]fter
the court has calculated the [applicable guidelines range],
‘sentencing becomes a judgment call, and a variant sentence may
be constructed based on a complex of factors whose interplay and
precise weight cannot even be precisely described.’” Id. (quoting
United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008)).
“Assuming a plausible explanation and a defensible overall
result, sentencing is the responsibility of the district court.”
Jimenez-Beltre, 440 F.3d at 519.
Here, the court gave the following explanation for its
imposition of a sentence of 480 months:
In this case we believe that the guidelines do not
reflect the seriousness of the offense and do not
provide reasonable and adequate deterrence and
punishment.
Based on evidence presented during the trial, the
defendant was a triggerman who possessed powerful
weapons to facillitate the instant offense. Moreover,
he was involved in violence at controlled drug points
where he sold cocaine, crack cocaine, heroin and
marijuana during different periods.
Therefore, to provide just punishment in light of
the seriousness of the offense and to protect the
community, the Court will sentence the defendant
according to the statute.
López-Soto received a sentence that was two and one
half times greater -– and more than twenty-four years longer –-
than the top of the recommended guidelines range. In such a
case, the district court must offer an especially compelling
reason for its sentence. See United States v. Smith, 445 F.3d 1,
4 (1st Cir. 2006) (“The farther the judge’s sentence departs from
the guidelines sentence . . . the more compelling the
justification based on factors in section 3553(a) that the judge
must offer in order to enable the court of appeals to assess the
reasonableness of the sentence imposed.”) (quoting United States
v. Dean, 414 F.3d 725, 729 (7th Cir. 2005) (Posner, J.) (Internal
quotation marks omitted)); see also Martin, 520 F.3d at 91
(“[T]he guidelines are the starting point for the fashioning of
an individualized sentence, so a major deviation from them must
‘be supported by a more significant justification than a minor
one.’”) (quoting Gall, 128 S. Ct. at 597).
The court’s stated grounds for the imposition of a
sentence that so markedly exceeded the recommended guidelines
range were neither sufficiently particularized nor compelling to
survive our review for reasonableness. The district court based
its upward variance on two factors: (1) López-Soto’s possession
of “powerful weapons” as a “triggerman,” and (2) his involvement
in violence in connection with the narcotics activity. The court
linked these facts to several relevant factors set forth in §
3553(a), namely the “need for the sentence to reflect the
seriousness of the offense,” “deterrence,” “to provide just
punishment,” and “to protect the public.” 18 U.S.C. §
3553(a)(2)(A), (B), (C). While the factors identified by the
court may have justified a substantial upward variance, they
simply do not support the imposition of a statutory maximum
sentence of forty years, that is so far above the guidelines
range. López-Soto’s use of powerful weapons and his engagement
in violence were not so unusually egregious as to justify the
imposition of the most severe possible sentence. See, e.g.,
United States v. Poynter, 495 F.3d 349, 354 (6th Cir. 2007)
(vacating sixty year statutory maximum sentence, which was more
than three times higher than guidelines maximum, because grounds
for upward variance, while supporting imposition of severe
sentence, did not sufficiently distinguish defendant from other
offenders guilty of similar crimes). The court’s reference to
López-Soto’s possession of weapons as a triggerman lacks
compelling force, in part because firearm possession had already
been considered, and accounted for, in the two-level enhancement
applied in the calculation of Appellant’s adjusted offense level.
See U.S.S.G. § 2D1.1(b)(1). “When a factor is already included
in the calculation of the guidelines sentencing range, a judge
who wishes to rely on that same factor to impose a sentence above
or below the range must articulate specifically the reasons that
this particular defendant’s situation is different from the
ordinary situation covered by the guidelines calculation.”
United States v. Zapete-Garcia, 447 F.3d 57, 60 (1st Cir. 2006).
It was not necessarily unreasonable for the sentencing court to
have found that a variance was warranted because López-Soto
possessed more than one weapon in his role as an enforcer for Las
Avispas and that the weapons were “powerful.” But these factors
were not so distinct from the firearm possession that was
incorporated into the guidelines calculation as to justify a
variance of such magnitude. See id.
Similarly, the court’s reference to López-Soto’s
engagement in violence was not sufficiently compelling to support
the degree of increase over the top of the recommended guidelines
range. The court expressly stated, at the beginning of the
sentencing hearing, that it would not consider López-Soto’s
alleged involvement in the murder of Santito in imposing
sentence. Further, the court concluded that, for purposes of
assessing López-Soto’s conduct in determining the appropriate
sentence, the presentence report “contains all the essential
information I need. . . . I think it’s complete.” The pre-sentence report, in turn, did not refer to any specific acts of
violence committed by López-Soto; rather, it described the role
of enforcers within the drug ring, who would use weapons to
protect the organization’s leadership and operations from rivals,
and identified López-Soto as a “hitman” within the organization.
If the court had, in fact, weighed the murder as a factor in
sentencing, the imposition of such a severe sentence might have
been justified. Absent the murder, however, the generic
reference to “violence” –- while supporting a sentence in excess
of the guidelines –- did not justify the imposition of the most
severe sentence allowable by law.
As deplorable as López-Soto’s conduct was, not all
enforcers of drug organizations who carry automatic pistols and
engage in generically described acts of violence deserve the
statutory maximum sentence. “While there is no yardstick
perfectly calibrated to measure one crime and one criminal from
the next crime and the next criminal, there are certainly
measurable differences between [López-Soto’s] situation and the
situation of offenders who might warrant the statutory maximum or
something approaching it.” Poynter, 495 F.3d 349, 354 (6th Cir.
2007). By imposing the maximum sentence on López-Soto, “the
district court left us little room to distinguish” between him
and more culpable narcotics conspirators who occupy the role of
enforcer within a drug ring. Id. An enforcer for a drug
organization who, for example, is found by the sentencing judge
to have committed one or more uncharged murders or other specific
egregious acts of violence, or whose criminal history category
“substantially under-represents the seriousness of the
defendant’s criminal history or the likelihood that the defendant
will commit other crimes,” U.S.S.G. § 4A1.3(a)(1), would be
substantially more culpable than López-Soto.
In sum, the district court’s description of López-Soto’s conduct, while justifying an upward variance, was not
sufficiently compelling to support a statutory sentence of more
than double the maximum of the applicable guidelines range.
There was ample room for a variance above the guidelines and
below the statutory maximum to accomplish the trial judge’s
stated purposes in sentencing López-Soto. Although “we emphasize
that we do not reject the sentence imposed below solely because
of the magnitude of its deviation from the guideline-recommended
range,” Zapete-Garcia, 447 F.3d at 61, the statutory maximum
forty-year (480-month) sentence simply does not stem from a
plausible explanation, does not constitute a defensible result,
and therefore cannot survive our review for reasonableness. See
Jimenez-Beltre, 440 F.3d at 519. Accordingly, without expressing
any opinion on what sentence should be imposed on remand, we
vacate López-Soto’s sentence and remand for re-sentencing
consistent with this opinion.
[13]
CONCLUSION
For the foregoing reasons, we vacate the convictions of
Díaz-Clavell and Zaragoza-Lasa and remand both cases for new
trials. We affirm the convictions of Cruz-Pereira and López-Soto, but vacate both sentences and remand for re-sentencing
consistent with this opinion. We affirm both the conviction and
sentence of Ofray.
Footnotes
[1] 'Of the Southern District of New York, sitting by designation.
[2] 'The second count, which was charged against only a few of the
defendants, was a narcotics forfeiture count and is not relevant to
any issue raised in the present appeals.
[3] ' The bar was also known, and at times referred to at trial, by the
name “La Copa Deportiva.”
[4] ' Collazo’s testimony about López-Soto’s statement was admitted,
over objection, as a co-conspirator statement.
[5] ' It is unclear why Note #2 -- which was signed by the foreperson
and thus presumably submitted fifteen minutes after “Jury Note #3"
-- was not in fact marked as the third (rather than the second)
note.
[6] ' Although the trial judge translated Note #2 into English to read
that the “others in the Indictment” were in prison for “a
conspiracy,” the Spanish words “por conspiracion” are more aptly
translated as “for conspiracy.” In any event, given the context of
Note #2, as discussed below, it is evident that the jury was
referring to the conspiracy charged in the Indictment.
[7] ' Because we have determined that the parties and defense counsel
were, in fact, present when the district court drafted its answer
to Note #2, we need not decide whether counsel’s failure to follow
the court’s ten-minute rule operated to waive or forfeit an
appellate challenge to the manner in which the court handled the
note or the substance of the court’s answer.
[8] ' In considering the question of prejudice, it is also worth
noting that AUSA Feldman, after being apprised of the trial court’s
answer to Note #2, expressed reservations about the answer, stating
to the court, “Unless you think [the answer to the note] would be
prejudicing them.” The incomplete transcript prevents us from
determining exactly when AUSA Feldman made this remark. What is
clear, however, is that the Government was aware that the court’s
answer could prejudice the defendants.
[9] ' Because we vacate Díaz-Clavell’s conviction, and because the
other issues raised by Díaz-Clavell on this appeal are unlikely to
be implicated on re-trial, we need not consider the other claims he
has asserted.
[10] ' Having vacated Zaragoza-Lasa’s conviction, we do not address the
rest of his claims, which –- like the additional claims asserted by
Díaz-Clavell –- are unlikely to be implicated in a new trial.
[11] ' The Government seeks to justify the court’s decision to preclude
on the ground that the proffered cross examination was “inherently
speculative.” But it is clear from the record of the proffer that
Ofray’s counsel had an adequate basis from which to assert his
claim that Candelaria had a bias against Ofray stemming from
hostile familial relations. It is worth noting that the district
court did not preclude the requested cross examination on the
ground that the line of questioning was inherently speculative.
[12] ' The note to section 3B1.1(c), which the Government cites,
provides, in relevant part, that a sentencing court may impose an
upward departure “in the case of a defendant who did not organize,
lead, manage, or supervise another participant, but who
nevertheless exercised management responsibility over the property,
assets, or activities of a criminal organization.” U.S.S.G. §
3B1.1, cmt. n.2.
[13] ' Because we have disposed of López-Soto’s sentencing argument on
reasonableness grounds, we need not address his argument that his
sentence created an ex post facto effect that deprived him of due
process. See Zapete-Garcia, 447 F.3d at 59 n.3 (citing United
States v. Lata, 415 F.3d 107, 112 (1st Cir. 2005)). Similarly, we
need not rule on Appellant’s challenge to his sentence on the
grounds that proper notice of the upward variance was not provided
pursuant to Rule 32(h) of the Federal Rules of Criminal Procedure.
We note, however, that under the Supreme Court’s recent decision in
Irizarry v. United States, No. 06-7517, 2008 U.S. LEXIS 4886, at
*11 (U.S. June 12, 2008), which was reached during the pendency of
the present appeals, Rule 32(h) does not apply to a variance from
a recommended guidelines sentencing range.
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