United States v. Ramos-Gonzalez , 787 F.3d 1 ( 2015 )

United States Court of Appeals
For the First Circuit
Nos. 10-1434
11-1416
12-1538
12-1711
UNITED STATES OF AMERICA,
Appellee,
v.
SONIA N. FLORES-RIVERA, a/k/a Mimi; SANDRA I. FLORES-RIVERA,
a/k/a Sandy; CARLOS OMAR BERMÚDEZ-TORRES, a/k/a Omar Moreno-
Espada; CRUZ ROBERTO RAMOS-GONZÁLEZ, a/k/a La R, a/k/a El Gordo,
a/k/a El Galán, a/k/a Robert Belleza, a/k/a Crucito,
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, Thompson, and Kayatta,
Circuit Judges.
Linda Backiel for appellants Sonia N. Flores-Rivera and Cruz
Roberto Ramos-González.
H. Manuel Hernández for appellant Sandra I. Flores-Rivera.
Rafael F. Castro Lang for appellant Carlos Omar Bermúdez-
Torres.
Dina Ávila-Jiménez, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Juan Carlos Reyes Ramos, Assistant United States
Attorney, were on brief, for appellee.
May 22, 2015
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KAYATTA, Circuit Judge. These consolidated appeals arise
from a multi-count indictment alleging that the four appellants--
Sonia Flores-Rivera ("Sonia"), Sandra Flores-Rivera ("Sandra"),
Carlos Omar Bermúdez-Torres ("Omar"), Cruz Roberto Ramos-González
("Ramos")--and their forty-three co-defendants1 participated in a
far-reaching drug trafficking conspiracy throughout various parts
of eastern Puerto Rico. Following their joint trial, the
appellants were convicted and sentenced to prison terms ranging
from 151 months to life. They assign error to many facets of their
trial, sentencing, and post-trial proceedings.
Ramos and Omar contend that the district court erred in
denying their motions for a new trial based on the prosecution's
failure to disclose material evidence in violation of Brady v.
Maryland, 373 U.S. 83 (1963). We agree that, cumulatively, the
withheld evidence had a "reasonable probability" of changing the
result for those two appellants. See United States v. González-
González, 258 F.3d 16, 20 (1st Cir. 2001). We therefore remand
their cases to the district court for a new trial. Sonia and
Sandra press no Brady claims on appeal. Finding no reversible
error arising from the claims that they do bring, we affirm their
convictions and sentences.
1
The other indicted co-defendants pled guilty either before
or during trial.
-2-
I. Background
A. The Charged Conspiracy
A grand jury indicted the appellants and their co-
defendants on August 2, 2007, on charges of conspiring to
distribute, and aiding and abetting the distribution of, cocaine,
crack-cocaine, heroin, and marijuana within 1,000 feet of a public
housing project or a public school, see 21 U.S.C. §§ 841(a)(1),
846, 860 and 18 U.S.C. § 2 (counts one and three through six), in
addition to possessing firearms in furtherance of those crimes, see
18 U.S.C. § 924(c)(1)(A) and (o) (count two).2 On February 5,
2008, the grand jury returned a superseding indictment bringing
additional charges against Ramos and five other defendants for
bribing and tampering with a government witness (counts seven
through nine) in violation of 18 U.S.C. § 1512(b)(1) and (k); id.
§ 201(b)(3); and id. § 2 (hereinafter "the witness tampering
counts"). Prior to trial, the district court granted the
prosecution's motion to dismiss the witness tampering counts
without prejudice so that those charges could be tried separately.
2
Count ten alleged the defendants' joint and several
liability for forfeiture of $10 million, as authorized by 21 U.S.C.
§ 853. The parties later agreed at trial that the evidence only
supported up to $3 million, so the judge instructed the jury that
the $10 million shown in the verdict form "should be reduced to $3
million at the most."
-3-
B. The Evidence
In considering a challenge to the sufficiency of the
evidence following a trial by jury, we typically recite the
relevant facts in the light most favorable to the jury's verdict.
See United States v. Bayes, 210 F.3d 64, 65—66 (1st Cir. 2000).
Conversely, our precedent manifests a lack of consensus on how to
present the record when a challenge is lodged to other issues, such
as claims of prejudicial error. See United States v. Burgos-
Montes, No. 13-2305, slip op. at 2—3 & n.1 (1st Cir. May 13, 2015).
Given that we cannot simultaneously recite the facts in
more than one manner, we first provide a more or less neutral
summary of the key relevant evidence presented at trial. In our
subsequent analysis of each issue we adopt a Rashomon-like approach
to our view of the evidence depending on the precise question posed
by the applicable principles of substantive law. For example, if
a prosecution witness plausibly says "X" and a witness favorable to
the defense plausibly claims "not X," we may initially recite both
but, in considering the sufficiency challenge, we assume "X" to be
correct. Conversely, on the Brady challenges, the key question
posed is whether the unproduced evidence "could reasonably be taken
to put the whole case in such a different light as to undermine
confidence in the verdict." United States v. Avilés-Colón, 536
F.3d 1, 19 (1st Cir. 2008) (internal quotation marks omitted).
Answering this question requires that "[w]e evaluate the strength
-4-
of the impeachment evidence and the effect of its suppression in
the context of the entire record." Id. (alteration in original)
(internal quotation marks omitted). Thus, in the hypothetical
example posed above, and with omitted evidence in the form of
documents calling into question the credibility of the prosecution
witness, we do not assume "X" to be correct; rather, we consider
the evidence as a whole to gauge the impact that the documents
would likely have had on the jury in weighing the evidence.
The appellants were tried before a jury in October and
November of 2009. The prosecution's witnesses told of a wide-
ranging conspiracy led by Ramos and staffed by his cadre of
"lieutenants" (including Omar), "sellers" (including Sandra), and
"runners" (including Sonia).
The prosecution's star witness was Harry Smith Delgado
Cañuelas ("Delgado"). Upon his release from prison in 2004,
Delgado moved to the Victor Berríos Public Housing Project ("Victor
Berríos") in Yabucoa, Puerto Rico. He testified that brothers Alex
and Ramiro Nazario controlled heroin sales at Victor Berríos in
2004, whereas Ramos controlled crack, cocaine, and marijuana
distribution. Delgado said that, while working for the Nazario
brothers, he learned where Ramos's organization hid its drug
inventory, and he stole a large packet (a "muerto") of Ramos's
drugs. Ramos, he said, suspected him of taking the "muerto," and
hired Delgado with the intent to later kill him after Ramos
-5-
purchased control of the heroin drug point from the Nazario
brothers in 2005. But after seeing how effectively Delgado was
"building up" heroin sales under Omar's supervision, Ramos decided
Delgado was more valuable to him alive than dead.
Delgado explained that his role as a lead administrator
at Victor Berríos gave him an insider's view of the organization's
leadership. Omar and two other defendants acted as "order
sergeants" in carrying out Ramos's commands whenever a problem
arose at a Ramos-owned drug point. Delgado also recounted how
Ramos kept tabs on competitors who sought to establish other drug
points near Victor Berríos.
Delgado's additional role as a seller provided insight
into the organization's day-to-day operations as well. He
testified that Sonia was a "runner" for the Victor Berríos drug
point. When a seller's supply ran low, Sonia would fetch drugs
from Ramos's inventory and deliver them to the seller. After
another individual finished tallying drug sales, Sonia stashed away
the proceeds until one of Ramos's lieutenants picked up the money.
Sandra, meanwhile, served as both a runner and a seller of cocaine,
crack, and marijuana. Two other cooperating witnesses, whose
testimony is described below, painted a similar picture of Sandra's
role.
Delgado claimed that his employment with Ramos's
organization continued until 2007, when he was arrested for
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attempted murder in Yabucoa. Delgado soon thereafter began
cooperating with the government.
Xiomara Berríos-Rojas ("Xiomara") was the government's
second cooperating witness who claimed to have been a member of the
conspiracy. Xiomara testified that she began working for Ramos's
organization at Victor Berríos in or around 2004, selling
marijuana, crack, and cocaine. She testified that certain
notebooks, seized by the police from an apartment belonging to one
of Ramos's lead bookkeepers at Victor Berríos, included "tallies"
reflecting the accounting of drug sales. Xiomara also testified
that a video depicting Sandra and Sonia at Victor Berríos showed
them dispensing crack, although no drugs were visible in the
footage. And she agreed with Delgado's testimony that Sonia was a
"runner" for Ramos.
The third cooperating witness to testify was Andy Marcano
("Andy"). Andy, like Xiomara, was a "runner." He delivered heroin
and other drugs to various drug points, including Victor Berríos.
Andy said that he also accompanied Ramos and his lieutenants when
it became necessary to threaten competitors or discipline the
organization's members.
Andy explained that Omar cooked heroin for the
organization and acted as one of Ramos's lieutenants. After
preparing the heroin, Omar gave it to Andy or another runner, who
then delivered it to sellers such as Delgado.
-7-
Central to the defendants' (in particular, Ramos's) trial
strategy was an attempt to impeach Delgado, Xiomara, and Andy by
suggesting that they engaged in a coordinated effort to fabricate
their testimony. Leading up to the trial, the three witnesses were
housed in a unit for cooperators within the Metropolitan Detention
Center (MDC) in Guaynabo, Puerto Rico. Within the cooperators'
unit, the men were located in section 4-C ("4-Charlie"), and
Xiomara resided in section 3-C, "right below" 4-Charlie. Xiomara
admitted it was possible for the cooperators to talk to prisoners
in other cells through the plumbing system by removing water from
each cell's toilet bowl.
On the stand, all three witnesses admitted speaking to
each other at MDC, but they flatly and firmly denied discussing
anything involving the instant case. Asked by Ramos's counsel
whether he discussed the case with Andy, Delgado responded:
"No . . ., from the beginning when I arrived [at 4-Charlie] in
2007, the order is that you cannot talk about the cases with
anybody, anybody, nobody, nobody." Similarly, while admitting that
she spoke to Delgado "on several occasions," Xiomara denied ever
speaking to him after she began cooperating with the government,
and she also denied that Delgado convinced her to testify or that
they discussed their testimony with one another. Andy, too,
admitted to speaking to Delgado at 4-Charlie. But when asked on
cross-examination whether he "at any time discuss[ed] [his]
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testimony or the facts of this case with Harry Delgado," Andy
replied, "No. It is totally prohibited to us to talk about the
case."
One might think that in this case charging a conspiracy
covering so much time, geography, and wrongdoing, the prosecution
(perhaps with the assistance of the cooperating witnesses) would
have offered a great deal of other evidence that did not depend on,
and indeed corroborated, the testimony of its cooperating
witnesses. One would be wrong. The government points us to no
such evidence of any significant probative value, especially as it
might bear on Ramos and Omar.
Government agents did explain how they set up secret
cameras, and seized computers, cell phones, and notebooks. They
also explained how they caught a number of other individuals red-
handed at Victor Berríos. None of this evidence, though, directly
implicated Ramos or Omar, and none of the other individuals who
were implicated testified.
After a thirteen-day trial, the jury found Ramos and Omar
guilty on all six counts charged in the superseding indictment.
The government dismissed the firearms charge against Sonia and
Sandra prior to jury deliberations, but the jury returned a guilty
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verdict against those two appellants as to the five remaining drug
trafficking counts.3
At the close of their respective sentencing hearings, the
district court sentenced the appellants to the following terms of
imprisonment: Sonia, 151 months; Sandra, 240 months; Omar, 480
months; Ramos, life imprisonment. Each of the four appellants
timely appealed their convictions and sentences, but intervening
events arising from the severed counts of witness tampering against
Ramos delayed their appeals from reaching this Court for several
years.
II. Ramos and Omar's Brady Claims
At some unspecified time before the trial of this case,
Delgado sent the lead prosecutor a handwritten letter that was, on
its face, a document that the prosecutor was required to disclose
to defense counsel prior to trial. The prosecutor did not make
this disclosure. Instead, she recounts that she put a copy of the
letter in her file for the separate trial on the witness tampering
charges against Ramos, and forgot about it even as she tried this
case in which Delgado was, in her words, her star witness. She
then came across the letter after the trial of this case when
preparing to try the witness tampering case. The prosecutor also
managed not to provide defense counsel prior to the verdicts a
3
The jury also found all four appellants guilty of the
forfeiture counts.
-10-
series of notes Delgado kept, or notes taken by FBI agents during
their interviews with another indicted co-conspirator, Gabriel
Medina-Pabon ("Medina"). The belated production of these
materials set off a series of post-trial evidentiary hearings and
motions by Ramos, Omar, and Sandra. The district court, in four
separate opinions issued between 2010 and 2013, rejected the
appellants' various arguments for a new trial based on the belated
productions. Those four opinions provide a detailed account of
each of the hearings conducted by and motions submitted to the
district court. See United States v. Ramos-González, 747 F. Supp.
2d 280, 284—89 (D.P.R. 2010); United States v. Ramos-González, No.
07-318, 2011 WL 2144215, at *1—2 (D.P.R. May 31, 2011); Opinion &
Order, ECF No. 2648 at 1—3, July 30, 2012; Opinion & Order, ECF No.
2972 at 1—6, August 9, 2013. We describe the details of the
withheld evidence and the district court's reasoning.
A. The Withheld Evidence
1. Delgado's Letter to the Prosecutor
The evidence of Delgado's letter to the prosecutor
consisted of two photocopied pages of handwritten text. The
certified translation of the letter states as follows:
To: The Prosecutor Dina Avíla Jímenez
From: The best cooperator, Harry S. Delgado
Hello!
I hope under God Almighty that when you
receive the foregoing in your hands, you enjoy
perfect health together with your co-workers
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and relatives. It is my best wish from the
bottom of my heart.
About me, I tell you that [illegible], I am
well health-wise.
I will start by saying that this is to let you
know to please remember these 2 things, the
first is that Jeanette4 is on probation and
before she leaves the country, to clarify that
point of view, because otherwise, they'll deem
her as a fugitive and they may take away my
daughters, and that would kill me, please
clarify this thing of the probation first; and
the second thing, I need an order from the
Judge so that when they transfer me Jeanette
can visit me, remember that I am not legally
married, and to get visits you have to fill in
a paper that you have to put your home and the
criminal record and it is not convenient for
any jail to know where Jeanette lives, what we
want is that the least they know, the better,
please help me, I am doing everything for my
daughters and Jeanette. I need you to help me
please. I promised you, the last time we saw
each other, to do everything you said and I
have done it to the point that you know how
this has gotten, we have more than we
expected, more evidence and more strength for
the case, I hope you can help me, I will
The photocopy of the letter is cut off after "I will" at
the end of the letter's second page. The prosecutor reports that
when she re-discovered the letter after the trial, she asked the
FBI agents to "go through each . . . folder or envelope to see if
they could find the original," but they were unable to find it.
Ramos-González, 747 F. Supp. 2d at 286—87. The prosecutor said
that the agents could not find any other materials related to the
letter, and she denied destroying any part of the letter herself or
4
Jeanette was Delgado's conjugal partner.
-12-
instructing the agents to destroy part of the letter. The district
court was unable to definitively determine whether additional pages
were missing from the letter and, if so, how such pages may have
disappeared. Id. at 284.
2. Delgado's Toilet Conversation Notes
Delgado made notes of two conversations with Andy and
Medina on the night of December 9, 2008, one at 8:57 p.m. and the
other at 9:18 p.m. Id. at 287. Those conversations took place
through the "toilet system" at MDC, id. at 287, where, as we
mentioned above, Delgado, Xiomara, Andy, and Medina were all
incarcerated leading up to the drug trafficking trial.
The notes reflect that Andy and Medina attempted to curry
favor with Delgado (who they presumably knew was the lead
cooperator) and to downplay their own roles in the conspiracy.
According to the notes, Medina said: "Look [Delgado], I'm calling
to tell you that I am cooperating in the case with the prosecutor
and I know you are getting [Xiomara] ready. . . . Andy and I are
going to cooperate, I already started to cooperate." Medina then
questioned Delgado as to why the government was "plac[ing] [him] at
the [drug] point when you know that I wasn't working there." Andy
also denied being an "enforcer." Delgado replied: "You very well
know that you were dealing," and proceeded to remind Medina of a
time when he assisted Delgado with storing guns. The rest of the
-13-
conversation basically reiterated Medina's pleas to Delgado to
treat him well in prison.
Delgado's notes also relate a later conversation between
Delgado and Andy that had a similar tenor to Delgado's conversation
with Medina. Andy asked why the government had him "down as an
enforce[r]." Delgado replied: "Listen, you know that I know about
your situation, and to tell you a little something, do you remember
the meeting in Caguas, where you, [Ramos], Manolo, [Bam Bam],
Eddie, Omar, and the others were there?" Andy said: "Yes, yes,
yes, it's true, but I'm going to cooperate and I'm going to bring
down all of those who stayed behind," and, "What I want is that
when we go up there, for us not to be enemies, but friends, and be
only [one], so we can help each other." They then agreed to talk
to each other again the following day at 8:00, but there are no
notes of any subsequent conversations on the record. At some point
the prosecutor, according to her testimony at a post-trial
proceeding, "scolded" Delgado for making the notes after he turned
them in and ordered him to stop making them.
3. "Rough Notes" of Interviews with Medina
FBI agents interviewed Medina three times in November and
December 2008 about the drug conspiracy, but Medina never testified
at trial. The prosecutor turned over the FBI "302 Reports" (the
FBI's official notes of what was said during the interviews) prior
to trial, but she withheld "rough notes" transcribed by one of the
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interviewers, FBI Special Agent Carlos Barreiro. The rough notes
were finally disclosed to defense counsel in September 2012 at one
of the post-trial evidentiary hearings involving allegations by
Ramos and Omar that the government intimidated Medina, causing him
not to testify on behalf of Ramos at an earlier post-trial hearing.
These notes, including the Spanish version and English translation,
span 121 pages of our appellate record.
The rough notes' content largely overlaps with the
information in the disclosed 302 Reports. However, Omar, whose
motion for a new trial on the basis of these notes was joined by
Ramos, argued before the district court that the rough notes
contained various new pieces of exculpatory impeachment evidence.
For example, the notes stated that Andy and another individual
"tapped Xiomara's [phone] line and listened to conversations
between her and [Delgado]" in prison. Medina also omitted any
mention of Omar's involvement within the time period in the
indictment (the only mention of Omar concerned events occurring in
1999), which Omar argued below and on appeal is "totally
exculpatory" as to him. And Medina inferred that Delgado murdered
a man known as "Barquilla," even though Delgado denied having
anything to do with that murder while on the stand.
B. The District Court Opinions
In a series of four detailed opinions, the district court
rejected all arguments that the above-described evidence was
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sufficiently impeaching or exculpatory to warrant a new trial. The
court concluded that, had the defense possessed the evidence prior
to trial, none of it would have had a "reasonable probability" of
changing the result.5 In the first opinion, the court made a
preliminary finding that "the evidentiary hearing allowed the Court
to gauge [the prosecutor's] testimony as credible and supportive of
her avowal of good faith in belatedly disclosing the evidence by
reason of inadvertence." Ramos-González, 747 F. Supp. 2d at 287.
As for the evidence's materiality, the court found that:
The evidence . . . [was] principally aimed at
impeaching Delgado's credibility and bias in
favor of the government, issues that were
already opened at trial and closed shut by the
jury. . . . Beyond the smokescreen of factual
allegations attacking Delgado's credibility,
which were in large part previously decided by
the jury, Defendants have not pointed to a
single piece of material evidence that
undermines the guilty verdicts, especially
when substantial evidence corroborates their
participation in the drug trafficking
conspiracy.
Id. at 292.
With regard to Delgado's letter, the district court
pointed out that the defendants had in their possession, before
trial, information showing Delgado's receipt of benefits from the
government, including assistance with relocating his family. Id.
at 293. Moreover, Delgado admitted on direct examination that his
5
We discuss the applicable legal standard in greater detail
in Part 1.C, below.
-16-
family received close to $10,000 from the FBI for his cooperation,
and the court warned the jurors that Delgado's receipt of such
benefits could affect his veracity and should be considered in
judging his credibility. Id. Therefore, the district court
concluded that the letter, "stripped to [its] bare essentials,
. . . say[s] nothing more than what has already been said about
Delgado at trial" and the attempt to impeach Delgado with the
letter could "only be described as cumulative." Id. at 294.
Similarly, the court found that Delgado's conversations
with Andy and Medina as reflected in Delgado's notes fell "into the
same general category of cumulative or collateral impeachment
evidence failing to create a reasonable probability of acquittal."
Id. at 294. The court explained that the notes "simply reflect
conversations by two co-defendants who were either contemplating
cooperating or already decided upon cooperating with the
Government. In essence, [Andy] and Medina [were] attempting to
exculpate themselves, not Defendants, from playing major roles in
the drug conspiracy, and are attempting to curry favor with Delgado
. . . such that he would treat them fairly when they would arrive
and reside together at the cooperator's [sic] unit." Id. at 295.
The court "fail[ed] to see how the conversations [between the
cooperators] were clearly related to the drug trafficking charges
in the sense that the cooperators were discussing any key material
factual allegations relating to [the appellants'] participation in
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the conspiracy and guilt." Id. at 296. Thus, this evidence, too,
was "collateral because [it did] not exculpate Defendants in any
way, and, [it was] cumulative because the fact that the cooperators
spoke in prison . . . was subject to extensive cross-examination at
trial." Id.
With respect to the rough notes (which were not produced
until 2012, two years after the court issued its first post-trial
opinion), the court again concluded the evidence was both
collateral and cumulative. As a general matter, Medina's testimony
at a 2012 hearing for the government's alleged prosecutorial
misconduct, while still inculpating the defendants, conflicted with
many of the statements reflected in the rough notes. Thus, the
probative force of his pre-trial statements was weak, and the notes
of those interviews did "little, if nothing at all, to undermine
the confidence of the verdict against the defendant." In response
to Omar's claim that the absence of any mention of his involvement
in the rough notes during the period included in the indictment was
"totally exculpatory" to him, the court concluded that such an
absence was at best neutral and therefore immaterial.
Finding that "the undisclosed evidence was neither new or
[sic] exculpatory, but was collateral and cumulative," and that
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"the government did not engage in any misconduct," the court denied
the defendants' final motion for a new trial.6
C. Standard of Review for the Denial of a New Trial
On appeal, only Ramos and Omar renew their contentions
that the withheld evidence warranted a new trial, so we evaluate
the Brady issue solely with respect to them.7
The appellants brought their new trial motions under
Federal Rule of Criminal Procedure 33, which provides that "[u]pon
the defendant's motion, the court may vacate any judgment and grant
a new trial if the interest of justice so requires." We review the
district court's denial of a Rule 33 motion for "manifest abuse of
discretion." González-González, 258 F.3d at 20.
As this circuit has previously explained, motions for a
new trial based on newly discovered evidence generally require a
6
The court's denial of the defendants' motion to dismiss the
indictment due to the government's alleged prosecutorial misconduct
is not at issue in this appeal.
7
Sandra's trial counsel joined Ramos and Omar in petitioning
the district court for a new trial after the prosecutor turned over
Delgado's letter and notes in 2010. Her appellate counsel has not
renewed this claim on appeal. Counsel was clearly aware of his
ability to adopt a co-appellant's arguments in a consolidated case
pursuant to Federal Rule Appellate Procedure 28(i), since he
reserved his right to do so in Sandra's opening brief. But counsel
never filed a reply brief after the court granted him an extension,
nor did he make a motion to adopt the other appellants' arguments.
Sonia did not make a motion for a new trial below and does not
attempt to piggyback on her co-appellants' motions on appeal, even
though her appellate counsel was clearly aware of the Brady issue,
since she is also representing Ramos in this appeal. Sonia's
opening brief includes a footnote referencing Delgado's letter but
makes no argument in relation to it.
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four-pronged showing that: "(1) the evidence was unknown or
unavailable to the defendant at the time of trial; (2) failure to
learn of the evidence was not due to lack of diligence by the
defendant; (3) the evidence is material, and not merely cumulative
or impeaching; and (4) it will probably result in an acquittal upon
retrial of the defendant." Id. (quoting United States v. Wright,
625 F.2d 1017, 1019 (1st Cir. 1980)). However, when the basis for
the motion is that the government failed to disclose evidence
required to be disclosed under Brady, either willfully or
inadvertently, we apply the more defendant-friendly Kyles v.
Whitley standard to the test's third and fourth prongs. See Kyles
v. Whitley, 514 U.S. 419, 434 (1995); United States v. Josleyn, 206
F.3d 144, 151—52 (1st Cir. 2000). Instead of requiring that the
defendant show that an acquittal would have "probably" resulted had
the material been produced, we require only that the defendant show
a "reasonable probability" that had the government disclosed the
evidence prior to trial, the result of the proceeding would have
been different. González-González, 258 F.3d at 20. Answering that
question requires that we determine whether a trial held in the
absence of such evidence can be described as a trial that can
produce "a verdict worthy of confidence." Id. (citing Kyles, 514
U.S. at 434). "This somewhat delphic 'undermine confidence'
formula suggests that reversal might be warranted in some cases
even if there is less than an even chance that the evidence would
-20-
produce an acquittal." Conley v. United States, 415 F.3d 183, 188
(1st Cir. 2005) (internal quotation marks omitted).
D. A Preliminary Note
We pause here to acknowledge that this is not the first
time our circuit has referenced the district court's 2010 opinion
rejecting Ramos and Omar's request for a new trial based on
Delgado's letter and toilet conversation notes.8 In United States
v. Ramos-González, 775 F.3d 483, 509—10 (1st Cir. 2014) (which we
will call "the possession case" for purposes of this discussion),
we affirmed Ramos's conviction for a separate drug offense.9 One
of Ramos's arguments in his appeal from the possession case
conviction was that the indictment against him should have been
dismissed, in part because the prosecutor also failed to timely
disclose certain 302 Reports of interviews with Ramos's arresting
officers. Id. at 491–92. To buttress his claim of prosecutorial
misconduct in that case, Ramos pointed out that the prosecutor in
that case was the same one who also failed to timely disclose the
above-described letter and notes from Delgado in the instant
conspiracy case. Id. at 492. Ramos urged us to find that the
8
Because the prosecutor did not disclose the rough notes
until 2012, they were not addressed by the district court until
2013.
9
We also remanded the possession case for resentencing in
light of the district court's erroneous application of the career
offender enhancement under the sentencing guidelines. Id. at 487,
503–08.
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prosecutor's actions, considered cumulatively in the two cases,
amounted to a "recurrent pattern of concealment and deception" and
a "flagrant disregard for [his] constitutional rights" that
warranted a dismissal of the indictment in the possession case.
Id.
We rejected that argument. After explaining why the
prosecutor's failure to disclose the 302 Reports in the possession
case itself did not constitute "an extreme case of prosecutorial
misconduct," id. at 493, we addressed Ramos's argument based on the
cumulative conduct in the two cases. In so doing, we "express[ed]
concern about the repeated nondisclosure of evidence" in the
prosecutions against Ramos and noted that "[t]he United States
Attorney's Office should develop procedures to avoid repeating the
lapses that occurred in these cases." Id. at 494. Nevertheless,
we affirmed the verdict in the possession case and made the
following statement regarding the ruling in this case that is now
the subject of this direct appeal:
As an initial matter, the district court in
the conspiracy case took the defendants' Brady
claims seriously, conducted an evidentiary
hearing, and wrote a thoughtful opinion
explaining why the alleged violations there
did not warrant a new trial. Given such
careful treatment, that court's judgment that
no constitutional violation occurred in the
trial over which it presided is owed deference
by both the district court in the instant case
and by us on appeal.
Id. at 493–94 (internal citation omitted).
-22-
So we must first ask whether the above-quoted language
dictates the resolution of the Brady issue on this direct appeal.
For the following reasons, we think not.
First, the precise question posed in the possession case
trained on the conduct and good faith of the prosecutor. The
argument posed was that misconduct in one case supported a finding
of misconduct in another, or that two errors could not be explained
as innocent. To reject that argument, it was sufficient to defer
to the district court's finding that the prosecutor did not act in
bad faith. As we will explain, there is no need to revisit that
finding on this appeal.
Second, and relatedly, in its collateral discussion of
the district court ruling in the instant case, the prior panel
(which included one of the judges on this panel) simply did not
have the complete record. This appeal in this case is the first
appellate opportunity to examine the above-described Brady material
and to analyze its potential effect on the appellants' drug
conspiracy convictions. We re-emphasize, and this is critical,
that the dispositive inquiry in determining whether a defendant is
entitled to a new trial under Brady is whether there is a
"reasonable probability" that the newly discovered evidence would
result in an acquittal in this case. Since we have never before
looked at the full record to determine whether Delgado's letter and
notes would have any effect on the jury's finding in the instant
-23-
conspiracy case, our deferential statement that the district
court's 2010 opinion was "careful" and "thoughtful" contains
limited, if any, value to us in deciding Ramos and Omar's claims.
We proceed with our analysis.
E. Analysis
The district court did indeed recite with care and
thought the correct standards and, as we have summarized above, it
issued detailed opinions rejecting the appellants' arguments.
Nevertheless, we disagree with the district court's ultimate
conclusion that the withheld evidence, considered cumulatively,
lacked sufficient materiality to create a "reasonable probability"
of acquittal had it been disclosed. Our disagreement is strong
enough to overcome the considerable deference we must yield to a
trial court on such decisions.
We begin with the well-established principle that, under
Brady, the government has an "affirmative duty to disclose evidence
favorable to a defendant," be it exculpatory or impeachment
evidence. Kyles, 514 U.S. at 432—33. However, "[w]e do not . . .
automatically require a new trial whenever a combing of the
prosecutors' files after the trial has disclosed evidence possibly
useful to the defense but not likely to have changed the verdict."
United States v. Dumas, 207 F.3d 11, 15 (1st Cir. 2000) (quoting
Giglio v. United States, 405 U.S. 150, 154 (1972) (internal
quotation marks omitted)). The following guidance on materiality
-24-
compiled from Supreme Court and First Circuit precedent is
particularly instructive with respect to the newly discovered
evidence in this case:
In analyzing whether there was a Brady
violation, we evaluate the strength of the
impeachment evidence and the effect of its
suppression in the context of the entire
record to determine its materiality. The
import of withholding evidence is heightened
where the evidence is highly impeaching or
when the witness' testimony is uncorroborated
and essential to the conviction. . . . We
must grant a new trial if, after assessing the
significance of the non-disclosed evidence in
the context of trial, the favorable evidence
could reasonably be taken to put the whole
case in such a different light as to undermine
confidence in the verdict.
Avilés-Colón, 536 F.3d at 19 (internal quotation marks and
citations omitted) (quoting, inter alia, Strickler v. Green, 527
U.S. 263, 290 (1999) and Kyles, 514 U.S. at 435).
Applying this test, we observe, first, that the testimony
of the three cooperating witnesses--especially Delgado--was both
essential to the convictions and uncorroborated by any significant
independent evidence. Indeed, the absence of such evidence is so
marked and surprising in view of the resources devoted to the
investigation and the availability of three turned conspirators
that it could reasonably cause the factfinder to be dubious about
the witnesses' claims. This is therefore a case in which the Brady
material that was not produced need not be "highly impeaching" in
-25-
order to require that the verdict be reversed. Avilés-Colón, 536
F.3d at 19.
Delgado was the star witness. The prosecutor told us so
much at oral argument and emphasized Delgado's testimony throughout
her closing argument at trial. His direct examination lasted an
entire day, and his cross, re-cross, and re-direct examination
lasted a day and a half more. On cross, defense counsel worked
through the usual litany of attacks one might make on any
cooperating witness. Delgado parried any suggestions that his
testimony was orchestrated with that of the other witnesses. In
fact, he denied even talking about the case with them, telling the
jury that to do so was against the rules. So, too, did those other
two cooperating witnesses firmly deny a basic premise of the
defense: that they coordinated their testimony.
Had defense counsel possessed Delgado's notes, counsel
could have either shown Delgado and the others to have perjured
themselves, and/or forced them to admit that they had at the very
least compared prospective testimony with one another. The notes
indicate that Delgado was encouraging Andy and Xiomara to testify,
and recount in detail at least one conversation where Delgado
"reminded" Andy about a meeting involving Ramos and Omar, which a
jury could have interpreted as Delgado telling Andy what to say.
Similarly, the rough notes show that Andy knew that Delgado and
Xiomara were talking through the pipes. It was not just the
-26-
defense who believed the potential for the cooperators to talk
about the case in prison jeopardized the government's chances of a
conviction.10 The prosecutor elicited testimony from Andy on re-
direct that suggested male and female prisoners could not talk to
each other at the prison.11
Delgado's letter to the prosecutor is probative for a
different reason. Although it contains no fact directly at
variance with his testimony,12 its overall tone turns it into what
could clearly have been a focus of a defendant's closing. In the
10
In line with Supreme Court precedent, we decide whether the
newly discovered "evidence is material . . . to guilt . . .
irrespective of the good faith or bad faith of the prosecution."
Brady, 373 U.S. at 87; see also Kyles, 514 U.S. at 432.
11
We refer to the following exchange:
Prosecutor: [Defense counsel] asked you
whether you and Harry had discussed the facts
of this case or the case about your testimony.
Andy: Yes, he asked me that question.
Prosecutor: Sir, what kind of gender inmates
are in Four Charlie?
Andy: We are all males.
Prosecutor: So where is Xiomara located?
Andy: The 3 C unit.
Prosecutor: So you and Harry do not share a
same unit with Xiomara?
Andy: No.
12
The letter did contain at least one "new" fact that the
defendants lacked at trial but that they could have used for
impeachment purposes: Delgado's girlfriend Jeanette, who he
references in the letter, was on probation while Delgado was
cooperating. Delgado's letter suggests that the government was
allowing Jeanette to travel out of Puerto Rico with Delgado's
children due to his cooperation.
-27-
letter, Delgado presents himself as the prosecutor's "best
cooperator"; a fawning, desperate supplicant willing to "do
everything [the prosecutor] said" and eager to point out how much
assistance he was providing her. Importantly, the fact that the
last part of the letter appears to have been destroyed--the part
where it seems he was saying what he would do--heightens greatly
its probative value, both raising an inference of spoliation,
see United States v. Laurent, 607 F.3d 895, 902 (1st Cir. 2010),13
and providing a powerful tool in the hands of any good trial
counsel to call into question the credibility of both the key
witness and, implicitly, the lead prosecutor.14
13
Omar argued below and on appeal that the prosecution's
failure to preserve the entire letter supported a new trial under
Arizona v. Youngblood, 488 U.S. 51, 58 (1988) (holding that bad
faith destruction of evidence constitutes a due process violation).
In Dumas, 207 F.3d at 15, we explained that in order to obtain a
new trial on a Youngblood-style destruction of evidence rationale,
"[t]he defendant must show that, in failing to preserve the
evidence, the government, (1) acted in bad faith when it destroyed
evidence, which (2) possessed an apparent exculpatory value and
which (3) is to some extent irreplaceable." While the district
court's finding of no bad faith prevented a new trial based on the
destruction of evidence rationale alone, the appellants likely
would have been entitled to a spoliation instruction, allowing the
jury to make an adverse inference that the destroyed evidence was
favorable to the defense. See Laurent, 607 F.3d at 902. Thus, the
fact that the letter was partially destroyed is of import to our
view of the withheld evidence's cumulative effect.
14
In noting that the apparently incomplete copy of the letter
might suggest such an inference, we do not question the district
court's conclusion that the non-production was unintentional. We
do, however, repeat our concern that this United States Attorney's
office, especially given its very heavy workload, appears to need
better procedures for gathering and producing Brady materials.
See Ramos-González, 775 F.3d at 494.
-28-
In deeming all this evidence to be merely "cumulative,"
the district court twice erred. First, the district court relied
heavily--at least twice--on its observation that the jury believed
Delgado based on the evidence it did hear. But this begs the
question of whether the jury would have believed Delgado if it had
also heard the omitted impeachment evidence. Second, the fact that
the defense had some tools to attack Delgado's testimony hardly
dismisses the potential of different tools as merely cumulative.
If defense counsel had firm proof that a witness received $500 from
the government, a letter confirming such a payment would be
cumulative. But a letter revealing another payment of $50,000
would be cumulative only in the sense that its relevance pointed
toward the same conclusion. This type of cumulative evidence can
be quite probative.
Here, moreover, there was no other document or recording
tending to prove that the witnesses were lying when they denied
discussing their testimony with one another. In so concluding, we
have considered the district court's finding that "Ramos' camp was
aware of conversations among co-defendants through the toilet at
MDC prior to trial." The district court based this finding upon
Medina's post-trial testimony recalling a pre-trial meeting with
Ramos's investigator in which he told the investigator that he
heard Delgado and Xiomara discussing the case through the toilets.
The investigator also testified and denied such a meeting ever
-29-
occurred, but the district court (despite finding Medina not to be
a credible witness) nevertheless concluded that the toilet
conversations were not "unavailable" to Ramos under the first prong
of Brady, and "thus, the motion for new trial must be denied[.]"
See United States v. Del-Valle, 566 F.3d 31, 38 (1st Cir. 2009) (to
establish a Brady violation, evidence must be unknown or
unavailable to the defendant at the time of trial).
We disagree with the district court's analysis. First,
a fact "known" to counsel remains entirely unknown to a jury unless
counsel has admissible evidence of the fact. There is no evidence
that Medina would have been willing to testify at Ramos's trial or
that he could have been so compelled. Second, even if Medina had
testified at trial, a swearing contest between Medina and Delgado
is hardly the same in terms of impeachment value as notes written
in Delgado's own hand. See United States v. Paladin, 748 F.3d 438,
446 (1st Cir. 2014) ("[S]uppressed impeachment evidence can be
immaterial because of its cumulative nature only if the witness was
already . . . impeached at trial by the same kind of evidence."
(internal quotation marks omitted)). And in this latter respect,
it is noteworthy that in concluding that Medina's testimony lacked
a reasonable probability of changing the result at trial, the
district court opined that Medina was not a credible witness
"considering the numerous inconsistencies in [his] statements." We
also reiterate that our holding is based on the cumulative impact
-30-
of all of the newly discovered evidence, not solely the content of
Delgado's alleged conversation with Xiomara. See Kyles, 514 U.S.
at 420 (explaining that the "disclosure obligation turns on the
cumulative effect of all suppressed evidence favorable to the
defense, not on the evidence considered item by item").
We also recognize that, in some sense, the letter and
notes were collateral because they did not directly bear on the
factual evidence underlying the government's case. See id. at 448;
United States v. Beauchamp, 986 F.2d 1, 4 (1st Cir. 1993) ("A
matter is considered collateral if 'the matter itself is not
relevant in the litigation to establish a fact of consequence,
i.e., not relevant for a purpose other than mere contradiction of
the in-court testimony of the witness.'" (quoting 1 McCormack on
Evidence § 45, at 169 (4th ed. 1992))). Yet in another, very
important sense, the evidence is anything but collateral because
the possibility that the three linchpin witnesses colluded to
fabricate incriminating testimony goes to the very core of this
case and potentially compromises every piece of factual evidence
the government had against Ramos and Omar.
Semantics aside, here is where the rubber meets the road:
This was a case that surprisingly pivoted entirely on the
credibility of Delgado and his two cohorts. The unproduced Brady
materials were the only evidence that would have eliminated the
claim that the testimony was entirely uncoordinated, and the
-31-
Delgado letter would have provided a uniquely colorful tool for
both attacking Delgado's motivation and raising the prospect that
Delgado and the prosecutor were hiding something from the jury.
Many members of the public would pause when told that a jury
accepted Delgado's testimony--and convicted Ramos and Omar--without
being shown any of these documents. See Norton v. Spencer, 351
F.3d 1, 9 (1st Cir. 2003) ("Confidence in the outcome is
particularly doubtful when the withheld evidence impeaches a
witness whose testimony is uncorroborated and essential to the
conviction." (internal quotation marks omitted)).15 We cannot say
for sure what Delgado, Xiomara, and Andy would have said had they
been confronted with this evidence on the stand (regardless of
whether it was introduced on direct or cross-examination). Nor can
we say that introduction of the withheld evidence would more likely
than not have changed the verdict. But the grasp of our own
conviction need not reach so far. Rather, under the applicable
standard we need only find it to be "reasonably probable" that the
15
The lack of corroboration of the cooperators' testimony is
a critical factor in helping us distinguish this appeal from other
cases applying the same legal standard that came out the other way.
See, e.g., Paladin, 748 F.3d at 493 (evidence of defendant's guilt
was "overwhelming and did not depend on [the informant's]
credibility"); United States v. Mathur, 624 F.3d 498, 505 (1st Cir.
2010) (multiple witnesses gave first-hand accounts of being
victimized by the defendant, and government introduced physical
evidence corroborating defendant's guilt); González-González, 258
F.3d at 18—19 (numerous other witnesses, who were not impeached by
the newly discovered evidence, corroborated the impeached witness's
testimony, and the government introduced voluminous incriminating
documentary evidence of the defendant's guilt).
-32-
impeachment evidence would have caused the jury to acquit Ramos and
Omar. See United States v. Prochilo, 629 F.3d 264, 268 (1st Cir.
2011). These circumstances satisfy that test due to the combined
impact of Delgado's solicitous and suspiciously incomplete letter,
the toilet conversation notes that the prosecutor scolded Delgado
for making, and the FBI's rough notes. We therefore instruct the
district court to grant Ramos and Omar's motions for a new trial.
This finding disposes of Omar's appeal, since any
potentially reversible mistakes arising from the other trial and
sentencing errors he alleges will be--at least temporarily--cured
by our grant of a new trial. Ramos, however, also makes a
sufficiency of the evidence argument with respect to the aiding and
abetting counts (counts three through six). A successful
sufficiency claim would oblige us to direct the court to dismiss
those counts of the indictment, see Burks v. United States, 437
U.S. 1, 10—11 (1978)--a more severe remedy than a new trial--so we
still must analyze that claim despite our ruling on the Brady
issue. As for Sonia and Sandra, neither of them pressed Brady
claims before this Court. We therefore proceed to address Ramos's
sufficiency claim and each of Sonia and Sandra's assignments of
error below.
III. Ramos's Sufficiency Argument
Ramos moved for a judgment of acquittal on all counts
based on the insufficiency of the evidence against him at the close
-33-
of the government's case, and he renewed that motion post-trial.
See Fed. R. Crim. P. 29(a). We review a district court's denial of
a Rule 29 motion de novo, viewing the evidence in the light most
favorable to the jury verdict and giving equal weight to direct and
circumstantial evidence. See United States v. Appolon, 695 F.3d
44, 55 (1st Cir. 2012). "The verdict must stand unless the
evidence is so scant that a rational factfinder could not conclude
that the government proved all the essential elements of the
charged crime beyond a reasonable doubt." Id. (quoting United
States v. Rodríguez-Vélez, 597 F.3d 32, 39 (1st Cir. 2010)).
On appeal, Ramos argues only that the trial evidence was
insufficient to prove the charges that he aided and abetted the
possession with intent to distribute heroin, cocaine, crack-
cocaine, and marijuana. When the government alleges that a
defendant aided and abetted an illegal act, it must show that the
"defendant participated in the venture and sought by [his] actions
to make it succeed," United States v. Bristol-Martir, 570 F.3d 29,
39 (1st Cir. 2009) (alteration in original) (internal quotation
marks omitted), and that he "willingly took some action to
facilitate" the crime, United States v. Bennett, 75 F.3d 40, 45
(1st Cir. 1996). Where the charges arise from a principal's
possession with intent to distribute narcotics, "[k]nowledge of the
particular controlled substance being . . . distributed is not
necessary, and intent to distribute can be inferred from the
-34-
quantity of drugs involved." Bristol-Martir, 570 F.3d at 39
(internal quotation marks omitted).
As we have explained, the prosecution's case was
vulnerably perched on the testimony of cooperating witnesses
without the support of any independent corroboration. That
weakness, though, does not render the evidence insufficient.
Indeed, we have repeatedly held that even the "uncorroborated
testimony of a cooperating accomplice may sustain a conviction so
long as that testimony is not facially incredible." United States
v. Cortés-Cabán, 691 F.3d 1, 14 (1st Cir. 2012) (collecting cases).
Considering the evidence in the light most favorable to the
government, as we must in analyzing an attack against the
sufficiency of the evidence, see Bayes, 210 F.3d at 65—66, we
conclude that a rational jury could have found Ramos guilty beyond
a reasonable doubt on the aiding and abetting counts. Delgado,
Xiomara, and Andy's trial testimony showed that, as the leader of
the conspiracy, Ramos established the organization's primacy for
all four types of drugs at Victor Berríos by "purchasing" control
of the drug point from the Nazario brothers. He also made hiring
decisions (such as his choice to retain Delgado as an administrator
and seller at Victor Berríos and Andy as a "runner" at various drug
points, including Victor Berríos), armed his employees (such as
when he provided Delgado with a gun), and constructed a chain of
command (by tapping Omar, José Manuel Zavala-Martí, and Bam Bam as
-35-
"order sergeants" who "dole[d] out" punishment to those who "failed
at something"). Such high-level activities were no less helpful
and intentional in furthering the organization's illegal objectives
than the actions taken by the sellers and runners themselves.
Ramos's sufficiency of the evidence argument therefore fails.
IV. Sandra Flores-Rivera's Arguments
A. "Other Act" Evidence
Sandra first argues that she is entitled to a new trial
because the district court committed error under Federal Rule of
Evidence 404(b) by admitting testimony about "prior bad acts." We
begin by describing the complained-of evidence.
Near the beginning of Xiomara's direct examination, the
prosecutor asked her several questions aimed at lessening the blow
of the defendants' anticipated impeachment attempts. For example,
the prosecutor elicited Xiomara's admission that she cut off her
electronic bracelet while on bail, used drugs while on bail, lied
to her parole officer, and fought another prisoner while
incarcerated. During this line of questions, the prosecutor asked
Xiomara if she had "ever been involved in an incident regarding a
knife." Xiomara proceeded to explain that she was placed "in the
hole" for seventeen days because prison officials discovered a
homemade knife in a co-defendant's cell. The following day, the
prosecutor returned to this subject, and Xiomara clarified that it
was Lauren Ortiz-Flores, Sandra's niece, in whose cell the knife
-36-
was found. Sandra was not mentioned in connection to this story at
all. On cross-examination, Sandra's trial counsel elicited
testimony that during the investigation about the homemade knife,
prison officials found a sewing needle in Xiomara's cell.
Prisoners were not allowed to have sewing needles, so this was
another instance of Xiomara breaking prison rules.
The second piece of evidence is a story told by Andy
during his testimony. Andy testified that Sandra and her sister
Diana (also a co-defendant) got into a domestic dispute about a
purported love affair between Sandra's daughter and Diana's
husband. Andy, Omar, Zavala-Martí and three other members of the
conspiracy traveled to Victor Berríos after hearing that Sandra and
Diana had shot guns at each other as part of the dispute. Zavala-
Martí warned Sandra and Diana that gunfire compromised the drug
point because it would make the drug point "hot" and "attract
cops." He also threatened Sandra that if "he had to go back
because of this sort of issue, . . . he was going to deal with
her."
Sandra concedes that she did not lodge a contemporaneous
objection to the testimony about the homemade knife, the domestic
dispute, or the shooting itself at trial. We therefore review her
claims for plain error, which means that we will only deem the
testimony's admission to justify reversal if it "seriously
affect[ed] the fairness, integrity, or public reputation of
-37-
judicial proceedings." United States v. Olano, 507 U.S. 725, 732
(1993) (internal quotation marks omitted); see United States v.
Niemi, 579 F.3d 123, 128 (1st Cir. 2009) (reviewing defendant's
forfeited 404(b) argument for plain error).
Rule 404(b) provides that "[e]vidence of a crime, wrong,
or other act is not admissible to prove a person's character in
order to show that on a particular occasion the person acted in
accordance with the character." Fed. R. Evid. 404(b)(1). The Rule
expressly provides that evidence of prior bad acts "may be
admissible for another purpose, such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident." Fed. R. Evid.
404(b)(2).16
Andy's account of the domestic dispute between Sandra and
Diana exemplifies the type of prior bad act evidence that may be
admitted for a purpose other than to show propensity. See Fed. R.
Evid. 404(b)(2) ("Permitted Uses"). The story illustrated how
16
Subparagraph (b)(2) of Rule 404 provides: "On request by a
defendant in a criminal case, the prosecutor must: (A) provide
reasonable notice of the general nature of any such evidence that
the prosecutor intends to offer at trial[.]" See also United
States v. Tuesta-Toro, 29 F.3d 771, 774—75 (1st Cir. 1994)
(discussing the specificity with which such a request must be made,
and holding that a general request for exculpatory information was
insufficient). Sandra argues that the prosecutor improperly failed
to provide notice of the evidence, but she also admits that she did
not request such notice. We therefore reject any implied argument
that the prosecutor's failure to provide proper notice constituted
reversible error.
-38-
high-ranking co-conspirators reprimanded lower-ranking members and
ensured the drug-selling operation's continued success. Thus,
while the domestic dispute itself was not relevant to Sandra's
guilt, the incident in its entirety was probative in showing
Sandra's participation in the conspiracy. See United States v.
Currier, 821 F.2d 52, 55 (1st Cir. 1987) ("[E]vidence of prior or
contemporaneous uncharged conduct may be admissible to complete the
story of a crime by proving the immediate context of events near in
time and place."); United States v. Watson, 695 F.3d 159, 165 (1st
Cir. 2012) (explaining that "the full weight of [the narrative]
would be lost on the jury absent the introduction of some limited
factual foundation"); United States v. Guerrero, 169 F.3d 933, 944
(5th Cir. 1999) (noting that Rule 404(b) permits admission of
evidence that explains the relationship between the parties).
With respect to the homemade knife incident, the story
had no direct connection to Sandra in the first place. Any
inference that the jury may have made due to the familial
relationship between Lauren and Sandra was too tenuous to attribute
the "bad act" to Sandra in these circumstances, especially under
plain error review. We therefore need not decide whether the
purpose of softening the blow of cross-examination would have been
a proper non-propensity purpose under Rule 404(b). Either way, it
was at worst harmless.
-39-
Having rejected Sandra's evidentiary arguments, we
proceed to her sentencing challenges.
B. Sentencing Challenges
The district court sentenced Sandra to twenty years'
imprisonment with respect to count one, which represented the
mandatory minimum term of incarceration for that count due to the
drug quantities found by the jury, the proximity of the offense to
a public housing project, and Sandra's prior felony drug offense
convictions. See 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), 846, 851,
and 860. She was sentenced to 188 months for each of the four
remaining counts, to run concurrently with count one and each
other. Sandra challenges what amounts to a twenty-year sentence on
two bases, both of which butt up against a stone wall of
controlling precedent. She also fails to direct us to any
indication in the record that she preserved her claims. We
therefore review her two sentencing arguments on plain error
review. See United States v. Dávila-González, 595 F.3d 42, 47 (1st
Cir. 2010).
Sandra first makes a broad attack on the
constitutionality of mandatory minimum sentences. This Court has
already determined that "it is beyond cavil that Congress has the
power to set statutory minimum and maximum sentences to which
courts must adhere." United States v. Gonzalez-Ramirez, 561 F.3d
22, 30 (1st Cir. 2009) (citing Chapman v. United States, 500 U.S.
-40-
453, 467 (1991)). No subsequent case has called that conclusion
into question. Sandra's constitutional challenge to mandatory
minimum sentences therefore fails to raise error, much less plain
error.
Sandra's second sentencing challenge is based on a
conflict she perceives between mandatory minimum sentences and the
mandate in 18 U.S.C. § 3553(a) that sentences be "sufficient, but
not greater than necessary, to comply with the purposes set forth"
therein, including the nature and circumstances of the offense, the
history and characteristics of the defendant, and other enumerated
sentencing factors. See 18 U.S.C. § 3553(a). She argues that
sometimes the mandatory minimum is greater than necessary to comply
with those purposes.17 Thus, she says, we must rely on the rule of
lenity to resolve the ambiguity in her favor, and (we assume)
remand to the district court for a different sentence.
We need look no farther than the text of section 3553
itself to conclude that no such conflict exists. Sections 3553(e)
and (f) describe the limited situations in which a sentencing judge
has the authority to impose a sentence below a statutorily mandated
minimum. A court may impose a lower sentence, for instance, when
the government makes a motion to reduce the sentence due to the
defendant's "substantial assistance" with an investigation or
17
Sandra fails to explain why her own sentence ought to be
characterized as such.
-41-
prosecution. 18 U.S.C. § 3553(e). There would have been no need
for Congress to include these carve-outs had it not assumed that
statutory mandatory minimums were generally applicable. Cf. United
States v. Jimenez, 507 F.3d 13, 21 (1st Cir. 2007) (stating that
the rule of lenity "only applies if there is a grievous ambiguity
in the statute" (internal quotation marks omitted)). Finding no
ambiguity, reliance upon the rule of lenity is unnecessary, and we
find no plain error in the district court's decision to subject
Sandra to the statute's mandatory minimum sentence.
V. Sonia Flores-Rivera's Arguments
A. Sufficiency of the Evidence
Like Ramos, Sonia moved for a judgment of acquittal based
on the insufficiency of the evidence against her at the close of
the government's case and post-trial. See Fed. R. Crim. P. 29(a).
Once again, we review the district court's denial of her Rule 29
motion de novo, viewing the evidence in the light most favorable to
the jury verdict. See Appolon, 695 F.3d at 55.
In order to sustain a conviction for the drug conspiracy
counts, "the evidence must show that: (1) [the] conspiracy existed;
(2) the defendant had knowledge of the conspiracy; and (3) the
defendant knowingly and voluntarily participated in the
conspiracy." United States v. Maryea, 704 F.3d 55, 73 (1st Cir.
-42-
2013).18 Here, the facially plausible trial testimony of Sonia's
admitted co-conspirators provided sufficient evidence to sustain
her conviction. See Cortés-Cabán, 691 F.3d at 14. Sonia was
identified by both Delgado and Xiomara as a "runner" for Ramos's
organization. Delgado also testified that he personally saw Sonia
tallying drug proceeds at her apartment, and that he saw her take
money from another conspirator and "stash" it until another member
of the conspiracy retrieved the money. Based on this testimony,
the jury was entitled to conclude that Sonia, too, conspired to
further the organization's objectives.
B. Prejudicial Variance
Sonia also argues that even if the evidence was
sufficient to prove her participation in the organization's drug
trafficking at the Victor Berríos housing project, there was
insufficient evidence tying her to the "larger conspiracy" charged
in the indictment. She points out that the indictment alleged a
conspiracy taking place in Yabucoa, Caguas, and elsewhere in Puerto
Rico, but the evidence of her direct participation was localized to
Victor Berríos in Yabucoa.19
18
Sonia's opening brief did not include any argument on the
aiding and abetting counts, and her reply brief simply claims that
should the conspiracy convictions fall, so too will the aiding and
abetting convictions. We find her argument as to the aiding and
abetting convictions waived. See United States v. Zannino, 895
F.2d 1, 17 (1990).
19
The trial testimony showed that Ramos's employees operated
in at least the cities of Aguas Buenas, Caguas, and Yabucoa.
-43-
We interpret Sonia's brief to argue that there was a
prejudicial variance between the indictment and the trial evidence
against her. She groups this claim together with her sufficiency
of the evidence argument, but she failed to alert the district
court that she was claiming a distinct prejudicial variance error.
Since we have previously stated that a prejudicial variance claim
is often "a challenge to the sufficiency of the evidence," see
United States v. Martínez-Medina, 279 F.3d 105, 113 (1st Cir.
2002), we give Sonia the benefit of the doubt and assume without
deciding that she preserved this argument by making her Rule 29
motions below, because here the standard of review does not change
the outcome. Cf. United States v. Lyons, 740 F.3d 702, 716 (1st
Cir. 2014). Our review is therefore de novo, taking all of the
evidence in the light most favorable to the government. See
Maryea, 704 F.3d at 73; Martínez-Medina, 279 F.3d at 113.
"A prejudicial variance occurs when (1) the facts proved
at trial differ from those alleged in the indictment; and (2) the
error affects the defendant's substantive rights." Maryea, 704
F.3d at 73. Sonia is unable to satisfy either prong of our
inquiry.
With regard to the first prong, in order to be convicted
of participating in a conspiracy, "each coconspirator need not know
of or have contact with all other members, nor must they know all
of the details of the conspiracy or participate in every act in
-44-
furtherance of it." Martínez-Medina, 279 F.3d at 113.
Furthermore, "[t]he jury may infer an agreement circumstantially by
evidence of, inter alia, a common purpose (such as a purpose to
sell illicit drugs), overlap of participants, and interdependence
of various elements in the overall plan." Id. at 113—14.
The evidence before the jury showed not only that the
drugs flowed from Ramos's inventory to multiple housing projects in
different cities, but that Ramos's lieutenants enforced
organizational discipline, punished thieves, and sought to exclude
competitors at Ramos's various drug points. Runners and
lieutenants traveling from Caguas to Victor Berríos did not merely
deliver drugs, but also checked on supply at each point of sale.
Moreover, at least one witness--Andy--testified that he worked at
multiple drug points owned by Ramos during his employment for the
organization. See Rodriguez, 525 F.3d at 103 (fact that different
drug point owners used the same runners and sellers was evidence of
a single conspiracy); cf. Martínez-Medina, 279 F.3d at 114 ("In a
case where a common supplier is the sole link between diverse
distributors, it may be more difficult to sustain a finding of
common agreement, although even then one could be inferred by
additional evidence--e.g., a finding that the various distributors
depended on one another for the health of their own drug business."
(internal citations omitted)).
-45-
Sonia also offers no coherent explanation for why she
sustained any prejudice (prong two) due to her claimed lack of
involvement in the organization's activities outside of the Victor
Berríos drug point. Simply put, the jury easily could have
convicted her for having the precise role charged in the
indictment--running drugs and serving as an accountant for drug
sales--without any consideration of events at other locations. See
United States v. Twitty, 72 F.3d 228, 231 (1st Cir. 1995) ("[S]o
long as the statutory violation remains the same, the jury can
convict even if the facts found are somewhat different than those
charged--so long as the difference does not cause unfair
prejudice."). Sonia does not, for example, contend that some of
the drug types in the indictment related only to trafficking by
others that occurred outside of Victor Berríos, or that sales made
outside of that housing project were needed to achieve the charged
quantity thresholds. Cf. United States v. Dellosantos, 649 F.3d
109, 124 (1st Cir. 2011) (evidence failed to show that defendants
participated in a conspiracy to sell marijuana and cocaine, as
opposed to solely cocaine). Nor could she, since, as discussed in
Part I, supra, the vast majority of the evidence presented at
trial--including evidence of all four types of drugs--related to
the organization's activities at Victor Berríos. Absent any
showing of prejudice, we are unable to assign plain error to the
alleged variance.
-46-
C. Prejudicial Evidence
Sonia next argues that the district court erred by
admitting testimony that should have been excluded under Federal
Rule of Evidence 403. That rule provides: "The court may exclude
relevant evidence if its probative value is substantially
outweighed by a danger of . . . unfair prejudice, confusing the
issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence." Fed. R. Evid. 403.
Since her trial counsel failed to raise an objection to any of the
testimony she now claims was wrongfully admitted under this Rule,
she must show that the district court's failure to exclude such
evidence amounted to plain error. See Rodriguez, 525 F.3d at 98
(assessing newly-unveiled Rule 403 claim for plain error). This
she cannot do.
1. Delgado's Shooting
On direct examination, Delgado began testifying about a
shooting he attempted to carry out against another co-conspirator
when Delgado was still working for the Nazario brothers. The
district court interrupted the testimony and then stated in open
court that it saw "no relationship to this case." Counsel
requested no mistrial, nor was this remotely cause for a mistrial.
In short, there was no error, much less plain error.
-47-
2. Ramos's Threat to "Spill Blood"
Andy testified about a threat Ramos made to "spill" the
blood of a competitor at a drug point in Aguas Buenas if the
competitor did not cease selling drugs there.20 Sonia makes a one-
sentence argument that this testimony "was clearly more prejudicial
than relevant, and unfairly distracted the jury from whether
Appellant agreed to join a conspiracy with Ramos' enterprises in
Caguas and Aguas Buenas, to how dangerous its members were." She
therefore appears to premise her argument on her belief that the
organization's activities outside of Yabucoa constituted a separate
conspiracy, and were thus irrelevant to her. That premise is
faulty, since, as we explained in addressing her prejudicial
variance argument, the trial testimony from Andy showed evidence of
interdependence and a common supply chain between the
organization's various drug points. Ramos's attempts to maintain
control over his drug points, rather than being a distraction, were
certainly relevant to proving the conspiracy's existence. The fact
that Sonia did not directly participate in this event does not--
taken alone--deem the evidence unduly prejudicial with respect to
20
Ramos's counsel objected to this testimony, but Sonia's did
not join in the objection. We decline to deem the argument
preserved for Sonia, particularly because the evidence pertained to
Ramos, and the district court did not have an opportunity to
evaluate its admissibility with regard to Sonia. Her argument is
therefore forfeited and reviewed only for plain error. See United
States v. Acosta-Colón, 741 F.3d 179, 189 (1st Cir. 2013)
(rejecting an undeveloped argument that co-defendants may
"piggyback" on one another's objections).
-48-
her conviction. Cf. Maryea, 704 F.3d at 73 (explaining, in
responding to a prejudicial variance argument, that while
"knowledge of the broader conspiracy's existence is critical," the
"government need not prove that the defendant had knowledge of
every other participant, or of the details of the conspiracy").
Further, any potential prejudice against Sonia was diminished by
the fact that Ramos never carried out the threat, and the incident
did not involve her.
3. Shootout Between Sandra and Diana Flores-Rivera
We have already described Andy's testimony related to
Sandra and Diana's domestic dispute. Sonia also challenges this
evidence, but on Rule 403 rather Rule 404(b) grounds. Her claim of
undue prejudice with respect to the domestic dispute evidence is
even weaker than Sandra's 404(b) argument, because Sonia was not
involved in the alleged shooting at all. Sonia attempts to bridge
this gap by claiming the story constituted evidence of guilt by
association that "served to suggest that because [Sonia] was a
member of this family, she must also be guilty." But given the
evidence's obvious probative value in illustrating the
organization's disciplinary system, in addition to her failure to
object below, this is a bridge too far.
Having rejected each of her Rule 403-based arguments, we
proceed to Sonia's next category of claimed evidentiary errors.
-49-
D. Testimony Based on "Speculation"
On direct examination, Xiomara testified that the
notation "M.I." in one of the drug ledgers written by co-
conspirator Sandra Fernandez-Espinosa21 could have referred to
either "Mimi" (Sonia's nickname) or another co-conspirator,
"Miguelito." Sonia claims on appeal that this testimony was
admitted in violation of Federal Rule of Evidence 602 because
Xiomara lacked sufficient personal knowledge to connect the ledger
notation to Sonia. Rule 602 provides: "A witness may testify to a
matter only if evidence is introduced sufficient to support a
finding that the witness has personal knowledge of the matter.
Evidence to prove personal knowledge may consist of the witness's
own testimony."
We have previously stated that under Rule 602, testimony
is inadmissible "only if in the proper exercise of the trial
court's discretion it finds that the witness could not have
actually perceived or observed what he testified to." United
States v. Brown, 669 F.3d 10, 22 (1st Cir. 2012). "Personal
knowledge can include inferences and opinions, so long as they are
grounded in personal observations and experiences." United States
v. Rodriguez, 162 F.3d 135, 144 (1st Cir. 1998) (internal quotation
marks omitted).
21
The ledgers were seized by the agents and had previously
been admitted into evidence without objection.
-50-
As a threshold matter, Sonia and the government dispute
whether Sonia's trial counsel made a contemporaneous objection to
this testimony at trial. We need not definitively decide whether
her claim of error is preserved because, even under the less
deferential standard of review for preserved claims of error, Sonia
fails to show that the admission of the ledger testimony
constituted reversible error.
Simply put, the jury was entitled to hear Xiomara's
testimony and afford it the proper amount of weight. Xiomara
testified that she personally tallied the drugs with Fernandez-
Espinosa, and that she watched Fernandez-Espinosa make recordings
in the ledger. Given Xiomara's role in the conspiracy, and her
testimony that Sonia acted as a runner, Xiomara could have fairly
inferred that the notation referred to one of the two co-
conspirators she named. See Rodriguez, 162 F.3d at 144. Moreover,
considering Xiomara, Delgado, and Andy's other testimony about
Sonia's involvement, any error caused by the introduction of the
evidence was harmless. See United States v. Muñoz-Franco, 487 F.3d
25, 63 (1st Cir. 2007) (internal quotation marks omitted).
Sonia makes a similar Rule 602 argument, this one
indisputably raised for the first time on appeal, about Xiomara's
testimony that she saw Sonia carrying bags containing drugs while
acting as a runner for the organization. We find no plain error in
the district court's decision to admit this unobjected-to
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testimony. Xiomara's belief that the bags contained drugs were
based on what "everybody knew." Absent an objection, the district
court lacked an opportunity to determine whether Xiomara meant that
co-conspirators had told her what was in the bags, in which case
the evidence may have been admissible under the co-conspirator
hearsay exception, see Fed. R. Evid. 801(d)(2)(E),22 or whether her
statement was based on unsupported speculation. We thus decline
the invitation to disturb the district court's judgment based on
the cold appellate record. Cf. United States v. Houlihan, 92 F.3d
1271, 1297 (1st Cir. 1996).
Finally, Sonia makes a two-sentence argument that Delgado
lacked personal knowledge to testify that Sonia stored the
organization's drug trafficking proceeds. She claims that the
testimony was based on inadmissible hearsay--statements by co-
conspirator Zavala-Martí–-but her argument is based upon a
misreading of the trial transcript. When asked how he knew that
the drug money was given to Sonia, Delgado testified that he "saw
her." There was no contemporaneous objection to this testimony at
trial. Of course, personally viewing Sonia procure the money was
22
Rule 801(d)(2)(E) provides that a statement offered against
a party that is made by that party's co-conspirator during and in
furtherance of the conspiracy is not hearsay.
-52-
a sufficient basis for Delgado to conclude that Sonia served in
that role.23
E. Jury Instructions
Sonia claims in a parenthetical of her opening brief that
the district court's failure to instruct the jury "that it must
determine the guilt of each defendant on each count separately"
amounted to a "distinct and serious plain error." There was no
objection to this instruction at trial. We decline to construct
Sonia's arguments for her, and we thus deem this assignment of
error waived. See United States v. Sevilla-Oyola, 770 F.3d 1,
13—14 (1st Cir. 2014) (explaining that "[a]rguments raised in only
a perfunctory and undeveloped manner are deemed waived on appeal").
23
After Delgado stated how he knew Sonia stored the funds,
he was asked by the prosecutor how he knew "where the money ended
up after leaving [Sonia's] hands." Ramos's trial counsel lodged an
objection at this point ("Objection, if he doesn't know"), but
Sonia's did not. Delgado then explained the basis for his personal
knowledge: Zavala-Martí, an undisputed leader of the organization,
told Delgado that Diana Flores-Rivera picked up the money from
Sonia and delivered it to Zavala-Martí. Zavala-Martí's statements
themselves--made by a conspirator for the purpose of informing
another conspirator what happened to the money--may have been
admissible under the co-conspirator hearsay exception. See Fed. R.
Evid. 801(d)(2)(E). The application of the co-conspirator
exception is complicated by Delgado's testimony that Zavala-Martí
told him this information because, in Delgado's words, "I worked
with the organization and we told each other, I mean, like as
friends." So, arguably, Zavala-Martí did not tell Delgado the
information "in furtherance" of the conspiracy itself, as would be
required by that exception. In any event, there was no objection
to Zavala-Martí's second-hand remarks, and we find no plain error
in the district court allowing the jury to find out what happened
to the money after Sonia took it.
-53-
F. Read-backs in the Jury Room
During its deliberation, the jury sent a note to the
trial judge that read, in relevant part: "We would like to hear the
transcripts from Harry's and Xiomara's testimony that make
reference to Sonia Flores (Mimi)." The judge, while in chambers
with the prosecutor, defense counsel, and the court reporter,
instructed the court reporter to read both the direct and cross-
examination for those two witnesses. The judge also explained the
restricted nature of the read-back procedure: "You are there as a
stone," the judge told the court reporter. The court reporter
could read the transcripts, and repeat anything the jury requested
to be repeated. However, the jury was not permitted to ask the
court reporter any other questions, nor was it allowed to make any
comments in the court reporter's presence.
The judge then asked the attorneys, "Do you want me to
bring them out in court?" Ramos and Sonia's attorneys responded
that "we prefer in open court." So the judge summoned the jury
into the courtroom, reiterated the instructions and the limited
nature of the read-back procedure, and confirmed that the jurors
understood the applicable restrictions. The jury foreperson
expressed a preference to do the read-back in the jury room, which
the judge said was "[f]ine. That's your choice." None of the
attorneys objected.
-54-
On appeal, Sonia claims that the court reporter's read-
backs in the jury room violated her rights to a public trial, to be
present for all parts of the trial, and to the assistance of
counsel. She also claims that the read-back procedure violated
Federal Rule of Criminal Procedure 43 (the "Court Reporter's Act"),
which requires the defendant to be present "at every trial stage."
We note at the outset that the trial transcript does not
evince any contemporaneous objection to the district court's grant
of permission for the jury to retire to the jury room during the
read-backs. This finding disposes of Sonia's Rule 43 claim, as we
have refused to entertain similar Rule 43 arguments on appeal where
trial counsel had a clear opportunity to object, but did not. See
United States v. Fernández-Hernández, 652 F.3d 56, 66 (1st Cir.
2011) ("[E]ven assuming [the defendant] had a statutory right to be
present under Rule 43 in these circumstances[,] . . . he waived
that right by remaining silent.") (citing United States v. Gagnon,
470 U.S. 522, 529 (1985)).
As for her constitutional claims, we find no plain error
in the way the district court handled the read-backs. We rest this
finding primarily on the second prong of the plain error test
(requiring the error to be "clear and obvious"), see Rios-
Hernández, 645 F.3d 456, 462—63 (1st Cir. 2011), because our
circuit has yet to establish any bright-line rules on read-back
procedures. For example, in United States v. Luciano-Mosquera, 63
-55-
F.3d 1142, 1156—57 (1st Cir. 1995), we addressed a situation where
a trial judge sent a court reporter to conduct a read-back in the
jury room without doling out any cautionary instructions. Since
defense counsel did not object, and since "[t]here [was] no
evidence that anything untoward happened in the jury room and no
reason to think the reporter did anything other than properly read
the pertinent portions of the record," we declined to reverse the
defendant's convictions. Id. at 1157. Here, the district court
provided explicit cautionary instructions in open court, and from
our reading of the record, defense counsel appeared to accede to
the procedure as it unfolded. While it may well have been
preferable for the district court, in an abundance of caution, to
conduct the read-backs in the presence of the defendants and their
attorneys, we find no plain error in its decision.
G. Delgado's Testimony About Meeting Ramos in Bayamón 308
Prior to trial, the government disclosed to the court and
the defendants that it could not verify from the available prison
records that Delgado and Ramos were simultaneously incarcerated at
the "Bayamón 308" prison in 1998, even though Delgado told the
grand jury that the two first met there that year. The government
then informed the court and the defendants that it would not be
-56-
presenting any evidence about their alleged meeting on direct
examination.24
Nevertheless, on Delgado's cross-examination, Ramos's
counsel chose to elicit Delgado's story about meeting Ramos at
Bayamón 308 in an apparent attempt to impeach Delgado by reference
to the earlier grand jury testimony. Delgado then claimed that he
spoke to someone claiming to be named "Robert Belleza" (Ramos's
alias) through windows and pipes at Bayamón 308, although he denied
ever seeing Ramos there face-to-face. There was no objection by
the defense, which intended to bring out the testimony all along.25
When it came time for the defense to present its own evidence,
Ramos's counsel introduced a prison administrator to testify as to
the prison records' failure to show any overlap between Ramos and
Delgado's incarceration at Bayamón 308 in 1998, although the
records did show that both were imprisoned there close in time to
one another. On cross-examination of the administrator, the
prosecutor tried to show that the records were unreliable.
24
This exchange is not in the record, but it is referred to
in the trial transcript.
25
Omar's counsel stated during his opening statement that
"[Delgado] told the grand jury that he met [Ramos] while he was in
prison in 1998." At that point, the prosecutor requested a sidebar
to express her concern that Omar's counsel was inviting a mistrial
by telling the jury that Ramos had previously been incarcerated.
The district court replied that it was "sure that counsel has
gotten all ready for this trial," and declined to take any further
action. Omar's counsel proceeded with his opening, stating that
Delgado lied to the grand jury about meeting Ramos at Bayamón 308.
-57-
The next day, Sonia's counsel filed a written "Motion to
Order the Government to Fulfill its Obligation Under Napue." Her
motion argued that by failing to correct Delgado's testimony about
Bayamón 308, the prosecution had "knowingly use[d] false . . .
testimony" in violation of Napue v. Illinois, 360 U.S. 264, 269
(1959). Counsel orally raised the motion the next day, and
requested a mistrial, which the district court denied. We thus
treat her Napue argument as properly preserved for appeal, and our
review of the district court's denial to retry the case is for
manifest abuse of discretion. See González-González, 258 F.3d at
22.
Under Napue, a prosecutor "may not knowingly use false
evidence, including false testimony, to obtain a tainted conviction
regardless of whether the prosecutor solicits false evidence or
. . . allows false evidence to go uncorrected when it appears."
United States v. Mangual-Garcia, 505 F.3d 1, 10 (1st Cir. 2007)
(quoting Napue, 360 U.S. at 269) (internal quotation marks and
alterations omitted). However, "[w]hen the defendant knows about
the false testimony and fails to bring it to the jury or the
court's attention, the assumption is that he did so for strategic
reasons, and the defendant will not be able to question his own
strategic choices on appeal." Id. at 10—11.
We reject Sonia's Napue argument for two principal
reasons.
-58-
First, it is a stretch to say that Delgado's testimony
about meeting Ramos at Bayamón was "knowingly . . . false" to the
prosecutor. Delgado testified that he spoke through windows and
pipes to someone who called himself by Ramos's alias, and that he
thought the person was Ramos, but that he did not see the speaker's
face. The prosecutor's decision not to elicit the testimony at
trial was based on her discovery that the story was uncorroborated
by available prison records. That lands short of an admission by
the prosecutor that she knew Delgado was lying. Under these
circumstances--especially where the prosecutor brought the
inconsistency to the attention of the court and defense counsel
prior to trial--the prosecutor's decision not to "correct" the
testimony when it was thereafter elicited by the defense was not
improper.
Second, the testimony only came before the jury for the
defense's own "strategic reasons." Mangual-Garcia, 505 F.3d at 10.
Just as a defendant's strategic failure to object to false
testimony will not create a Napue violation, neither will a
defendant's strategic elicitation of such testimony. Cf. id. at
10—11 & n.7 (collecting cases for the proposition that the tactical
omission of an objection does not give rise to a Napue claim).
This is especially true when, as here, defense counsel came
prepared to impeach said testimony.
-59-
H. Sentencing Challenges
Sonia makes what we interpret to be two categories of
challenges relating to her 151-month sentence.
1. Firearm Enhancement
Despite the prosecutor's decision to dismiss the firearms
count against Sonia, the district court imposed a two-level firearm
enhancement under U.S.S.G. § 2D1.1(b)(1), which contributed to
Sonia's total offense level of 34.26 Sonia levied an objection to
the enhancement in her sentencing memorandum, renewed the objection
at her sentencing hearing, and assigns error to the enhancement's
application once again on appeal. Arguments such as Sonia's--that
the district court wrongly applied the facts of the case in
imposing a guidelines enhancement--are subject to clear error
review. See United States v. Thongsophaporn, 503 F.3d 51, 57—58
(1st Cir. 2007).27
Section 2D1.1(b)(1)'s firearm enhancement "applies
whenever a codefendant's possession of a firearm in furtherance of
their joint criminal venture [is] reasonably foreseeable" by the
26
Sonia's 151-month sentence sat at the bottom of the
guidelines range for that offense level.
27
The heading to this section of Sonia's brief states that her
sentence was procedurally and substantively unreasonable, but she
makes no argument to this effect. We therefore deem any challenge
to her sentence's procedural and substantive reasonableness waived,
aside from her argument regarding the firearm enhancement. See
United States v. Rossignol, 780 F.3d 475, 477 & n.2 (1st Cir.
2015).
-60-
defendant. United States v. Bianco, 922 F.2d 910, 912 (1st Cir.
1991).28 Even though there was no direct evidence at trial or in
the presentence investigation report evidencing Sonia's awareness
of the use of firearms in connection with the conspiracy, our
circuit's case law on point piles a mountain too high for her to
climb. Indeed, "[b]ecause firearms are considered common tools of
the drug trade," where firearms are used in furtherance of drug
offenses, the two-level "enhancement should be applied if [a]
weapon was present, unless it is clearly improbable that the weapon
was connected with the offense." Thongsophaporn, 503 F.3d at 58
(internal quotation marks omitted).
Here, the trial testimony showed that Sonia was a runner
of crack, cocaine, and marijuana, and that she helped stash all
four types of drugs sold by the organization. She had contact with
several other co-conspirators, including Delgado, who had a
reputation for shooting his gun.29 Finding, as we do, that the use
of firearms during and in furtherance of the conspiracy was not
"clearly improbable" from Sonia's perspective, we see no clear
error in the district court's choice to apply the enhancement.
28
U.S.S.G. § 1B1.3(a)(1)(B) requires the sentencing court to
consider "in the case of a jointly undertaken criminal
activity . . ., all reasonably foreseeable acts and omissions of
others in furtherance of the jointly undertaken criminal activity."
29
Delgado had a reputation for donning a bulletproof vest and
frequently firing guns while at the housing project. He testified
that he was armed "all the time."
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2. Fair Sentencing Act Amendments
Sonia next argues that she is entitled to resentencing
under the Fair Sentencing Act of 2010 ("FSA"), which was passed
five months after the district court imposed her sentence. Our
circuit has already decided that the FSA does not apply
retroactively to those who, like Sonia, were sentenced before the
FSA's enactment. See United States v. Goncalves, 642 F.3d 245,
253—54 (1st Cir.), cert. denied, 132 S. Ct. 596 (2011). Her
argument thus necessarily fails.30
Anticipating our disagreement with her retroactivity
argument, Sonia asks us to "address the issue raised here to guide
the District Court in the exercise of its discretion pursuant to 18
U.S.C. § 3582(c)(2)." Section 3582(c)(2) provides that "in the
case of a defendant who has been sentenced to a term of
imprisonment based on a sentencing range that has subsequently been
lowered by the Sentencing Commission . . ., the court may reduce
the term of imprisonment." (Emphasis supplied). The statute, by
its plain language, is triggered in the first instance by the
discretion of the sentencing judge, not the Court of Appeals.
Sonia does not point to any evidence that she brought this request
to the district court in the intervening years between the
30
Sonia also seems to argue that the imposition of her pre-FSA
sentence violated the Equal Protection and Due Process clauses of
the constitution. We deem her glancing references to those
constitutional provisions as waiving any viable challenge to her
sentence for which they form a basis.
-62-
imposition of her sentence and this appeal. Therefore, we reject
Sonia's invocation of section 3582(c), without opining on her
eligibility for a sentence reduction.
VI. Conclusion
To summarize, appellants Carlos Omar Bermúdez-Torres and
Cruz Roberto Ramos-González are entitled to a new trial on all six
counts of their conviction, plus the forfeiture count. We remand
their cases to the district court for a new trial. Having rejected
each of Sandra and Sonia Flores-Rivera's challenges, we affirm
their respective convictions and sentences.
So ordered.
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