United States v. Nieves-Canales ( 2015 )

United States Court of Appeals
For the First Circuit
Nos. 11-2328
12-1442
12-2412
UNITED STATES OF AMERICA,
Appellee,
v.
RAMÓN LANZA-VÁZQUEZ, a/k/a Ramoncito;
LUIS R. NIEVES-CANALES, a/k/a Sito;
RAFAEL GALÁN-OLAVARRÍA, a/k/a Galán,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Aida M. Delgado-Colón, U.S. District Judge]
Before
Howard, Chief Judge,
Torruella and Kayatta, Circuit Judges.
David Shaughnessy for appellant Rafael Galán-Olavarría.
Lydia Lizarríbar-Masini for appellant Luis Nieves-Canales.
Inga L. Parsons for appellant Ramón Lanza-Vázquez.
Olga B. Castellón-Miranda, 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.
August 27, 2015
HOWARD, Chief Judge. Ramón Lanza-Vázquez ("Lanza"), Luis
R. Nieves-Canales ("Nieves"), and Rafael Galán-Olavarría ("Galán"),
(collectively, "the defendants"), appeal convictions and sentences
resulting from their participation in a drug distribution
conspiracy. They lodge a litany of challenges covering nearly
every aspect of the proceedings below. Finding no reversible
error, we affirm.
I.
We begin by briefly sketching the facts most relevant to
our analysis.1
A. The Drug-Trafficking Operation
This case arises from a drug trafficking operation at the
Jardines de Sellés Housing Project in San Juan, Puerto Rico
("Sellés"). On January 26, 2000, the leader of that operation,
Luis Daniel Rivera, was murdered. This created a leadership
vacuum, which Alberto Carillo-Morales ("Alfalfa") swiftly moved to
fill. Within two days, he had succeeded in taking control.
Upon taking power, Alfalfa adopted an unforgiving and
oppressive management style. He held regular meetings with his
1
The background facts of the conspiracy and the defendants'
roles in the conspiracy are relevant to Nieves' sufficiency of the
evidence challenge. We therefore view them in the light most
favorable to the jury verdict. See United States v. Burgos, 703
F.3d 1, 4 n.1 (1st Cir. 2012). We consider the remaining facts --
those relevant to the remaining challenges that we discuss in this
opinion -- in a "balanced" manner. See United States v. Burgos-
Montes, 786 F.3d 92, 99 (1st Cir. 2015).
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closest co-conspirators to discuss the operation and to plot
strategy. If an individual sold drugs at Sellés, he or she was
doing so on Alfalfa's behalf or with his blessing. Indeed, the
jury could have concluded that Alfalfa would order his gang to kill
or harm any individual who either disobeyed that rule or who merely
expressed disagreement with his decisions.
As for the drug business itself, Alfalfa implemented a
number of changes. The jury heard evidence that Alfalfa instituted
a hierarchical system: drug "owners" were responsible for obtaining
drugs (and benefitted most from the sales); "runners" transported
the drugs and money from owner to seller; and "sellers" positioned
themselves at drug points to distribute the goods. "Enforcers"
were also tasked with protecting the drug points at Sellés, which
operated 24 hours a day. Relatedly, Alfalfa expanded the number of
drug points at Sellés, and his subordinates sold a variety of drugs
including crack cocaine, powder cocaine, heroin, and marijuana.
The bags containing his drugs typically included a sticker bearing
the face of Osama Bin Laden.
After tightening his grip on power at home, Alfalfa
turned outwards. Around 2004, Alfalfa ordered his men, armed with
guns, to take over the operation at the El Prado housing unit.
They successfully did so. Around the same time, he took over Las
Flores, a housing project in nearby Aibonito. He also briefly took
control of the Liborio Ortiz Housing Project. These territorial
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grabs consistently ignited shootings and fights among the different
drug-trade organizations.
B. The Defendants
The three defendants in this case each joined Alfalfa's
operation at different times and in distinct ways. For instance,
the jury could have found that Defendant Nieves was one of
Alfalfa's initial co-conspirators. From the beginning, he was a
drug owner; he specifically owned the "$12 bag" of marijuana. In
addition to selling that product at Sellés, he served as an
enforcer and protector at drug points. Although he lawfully
possessed a number of guns, he also carried several illegal
firearms. Moreover, he participated in shootings with rival gangs
when it suited his boss's interests.
The evidence likewise supported the finding that
Defendant Galán joined Alfalfa's operation as a seller at Sellés.
Early on, he expressed an interest in rising through the ranks of
the organization, as he wanted to become a drug owner himself.
Alfalfa's expansion into El Prado provided Galán with that
opportunity. He became an owner of a brand of marijuana at El
Prado and enlisted José Serrano-Ayuso ("Serrano") to serve as his
runner. The two met nightly at Galán's apartment, where Serrano
would deliver money and the men would count it together.
Finally, evidence established that Lanza joined Alfalfa's
group after leaving a rival organization. He served as a seller,
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enforcer, and (occasionally) as a runner. As time progressed, his
role became more substantial; for instance, he was invited to join
Alfalfa's weekly meetings. He also became owner of the "green-
capped" crack at El Prado. As a result, Lanza was spotted
conducting business at El Prado on a nearly nightly basis.
C. The Investigation and Indictment
These illicit activities did not go unnoticed, and an
investigation into Alfalfa's operation by a San Juan Metro Strike
Force accelerated in May and June of 2007. As part of that
investigation, agent Jorge L. Cedeño surveilled the El Prado
apartments. He positioned himself in a parking lot facing Galán's
apartment building. According to Cedeño's affidavit, he quickly
became familiar with the building's layout, and knew that the
second floor had two apartments: one to the left and one to the
right (Galán's purported home). From his usual position, he said,
he could not see the actual door to the apartment on the right, but
he could see the door to the apartment on the left and he could
view the stairs leading to the third floor (along with the exit on
the third floor).
On at least two occasions between May 30 and June 6,
Cedeño purportedly saw Galán walking up to the second floor,
turning right, and disappearing for a period of time. Cedeño
concluded (since he would have seen Galán go anywhere else) that
Galán must have been entering the apartment. On a third occasion,
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according to the agent, he also saw an individual with a black
pistol take the same path. Agent Cedeño stated that he also
witnessed Galán with certain contraband, including: containers
ordinarily used to hold drugs; bags with what appeared to be
cocaine inside; and a police radio scanner. Finally, Cedeño
claimed that he saw Galán sitting in the stairwell manipulating
product.
As noted, Cedeño submitted an affidavit detailing these
(and other) observations, and a judge of the San Juan Municipal
Court approved a search warrant for Galán's apartment. During the
search, the police recovered: a police radio scanner that was
turned on; a firearm cleaner; a loaded AK-47 with two magazines;
$1,064 in cash; two social security cards; pressure-sealed baggies;
and stickers/seals depicting Osama Bin Laden's face. The officer
also found registrations for three cars and a driver's license.
One of the registrations matched a vehicle seen in video
surveillance at a Sellés drug point.
At the conclusion of the investigation, a federal grand
jury indicted 121 defendants, including the three in this case. It
charged: (count I) conspiracy to possess with intent to distribute
drugs; (count II) aiding and abetting possession with intent to
distribute heroin; (count III) aiding and abetting possession with
intent to distribute crack cocaine; (count IV) aiding and abetting
possession with intent to distribute cocaine; (count V) aiding and
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abetting possession with intent to distribute marijuana; and (count
VI) conspiracy to possess a firearm during and in relation to drug
trafficking. Galán was also charged as being a felon in possession
of a firearm, (Count VII). Galán, Lanza, and Nieves were jointly
tried.
D. The Trial, Verdict, and Sentence
At trial, the government relied on physical evidence
(such as the items found in Galán's apartment), the testimony of
law enforcement officers (such as Agent Cedeño) and, perhaps most
importantly, the testimony of several co-conspirators. Three were
prominent.
The first was Wilberto Pizarro-Santiago ("Pizarro") who
was a drug seller at Sellés from 1998 to 2005. He subsequently
worked for a rival gang. At trial, he testified extensively about
Alfalfa's operation and made clear that if an individual sold drugs
at Sellés it was on Alfalfa's behalf. He discussed the
organization and provided details about the murder of "Geno" -- an
associate who had expressed disagreement with Alfalfa's decisions.
Pizarro specifically identified Nieves as the owner of the "$12
bag" of marijuana and referenced specific instances in which he saw
Nieves carrying firearms. Indeed, he alleged that Nieves was
"always armed." In addition to identifying Nieves, Pizzaro also
testified that Lanza attended Alfalfa's inner-circle meetings and
was an enforcer within the organization.
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The second co-conspirator, Serrano, worked at El Prado as
a runner and enforcer for Galán. At trial, he identified Lanza as
part of the operation, described Alfalfa's takeover of El Prado,
and explained how he came to work directly for Galán. Since he was
Galán's runner, Serrano was able to provide substantial detail on
their interactions. Serrano also admitted that he was generally
armed to protect Galán.
Finally, José Díaz-Martínez testified about his
experience working for Alfalfa at both Sellés and El Prado. He
described the general framework of the operation and Alfalfa's
style of management. He, too, specifically identified Nieves and
Galán as being drug owners within the organization. He further
explained how Lanza became owner of the green-capped crack at El
Prado.
After an eighteen-day trial, a jury returned verdicts
finding all three defendants guilty on distinct counts. It first
found all three guilty on the initial count of participating in the
overarching conspiracy, count I. Additionally, the jury found
Lanza guilty of the substantive crack cocaine charge; it found
Nieves guilty on the substantive crack cocaine charge, the
substantive cocaine charge, the substantive marijuana charge, and
the firearm conspiracy charge; and, finally, it found Galán guilty
on the substantive marijuana charge, the firearm conspiracy charge,
and the felon in possession of a firearm charge. The court then
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sentenced Lanza to 240 months in prison, Nieves to 240 months, and
Galán to 405 months.
These timely appeals followed.
II.
Galán, Lanza, and Nieves present a laundry-list of claims
ranging from minor evidentiary concerns to broad assertions of
cumulative error. We have considered each and have conducted an
extensive review of the record. Ultimately, only five issues have
merit sufficient to warrant an in-depth exploration.2 We thus
narrow our focus to: (1) Galán's challenge to the search of his
apartment; (2) the defendants' concerns respecting the judge's
intervention during trial; (3) the defendants' protests respecting
the charge to the jury; (4) Nieves' arguments respecting the
sufficiency of the evidence against him; and, (5) Nieves' Alleyne
sentencing contention.3
A. Challenge to the Search of Galán's Apartment
Galán gets the ball rolling with a challenge to the
search of his apartment. His central accusation is that Agent
2
We have considered the remaining arguments and find them to
be unpersuasive.
3
In addition to bypassing detailed discussion of several of
the defendants' claims, we note the government's concern that the
defendants improperly joined each others' appellate arguments and
that each defendant failed to independently object at trial. In a
closer case, these points could be fruitful. Here, we not need
resolve these issues as defendants cannot succeed regardless of
their validity.
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Cedeño intentionally falsified observations in the affidavit
submitted to obtain a warrant for Galán's residence. The district
court, in Galán's view, then erred in ruling otherwise after a
Franks hearing. Franks v. Delaware, 438 U.S. 154 (1978) (providing
a mechanism for a defendant to challenge the veracity of statements
in affidavits submitted to obtain search warrants). He thus asks
us to reverse the district court's Franks determination and
conclude that the fruits of the search should have been suppressed.
Where, as here, a Franks hearing was held and the
challenge is targeted at its results, "[w]e bypass the question of
whether [the defendant] made the 'substantial preliminary showing'
necessary to invoke a Franks hearing," and, instead, "review de
novo the district court's ultimate decision to suppress [or not
suppress] the evidence obtained pursuant to the warrant at issue."
United States v. Tzannos, 460 F.3d 128, 135-36 (1st Cir. 2006).
Any antecedent factual findings are reviewed for clear error. Id.
at 136.
To succeed in challenging the affidavit, Galán must show
by a preponderance of the evidence that "the affiant in fact made
a false statement knowingly and intentionally, or with reckless
disregard for the truth," and, "that with the affidavit's false
material set to one side, the affidavit's remaining content is
insufficient to establish probable cause." Id. at 136. While a
knowing and intentional falsehood requires proof of intent,
-11-
recklessness can be inferred "from circumstances evincing obvious
reasons to doubt the veracity of the allegations." United States
v. Ranney, 298 F.3d 74, 78 (1st Cir. 2002). A material omission
can also form the basis of a Franks violation. United States v.
Castillo, 287 F.3d 21, 25 (1st Cir. 2002).
Galán fails at the first prong. He homes in on Agent
Cedeño's repeated statement in the affidavit that he observed Galán
or other individuals "entering" or "exiting" the apartment. At the
Franks hearing, however, Cedeño testified that he could not
technically see the entrance to Galán's apartment because the door
was obstructed by a concrete staircase. That inconsistency, Galán
insists, exposes an intentional falsehood in the affidavit. Since
those alleged observations by Cedeño were the only statements
connecting the crime with the apartment, Galán believes that once
the statements are excised, no probable cause for the search
exists.
We do not evaluate this argument on a blank slate.
Instead, the district court made extensive factual determinations
and credibility assessments to which we defer unless clearly
erroneous. Notably, the magistrate judge (whose decision was
adopted by the district court), found that Cedeño
testified knowing that there are two
apartments on the second floor. To the left,
there is one apartment, and to the right is
the only other door on that floor. He knows
this because he has gone up those stairs on
several occasions and the distribution is
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always the same. The door cannot be seen
because the stairs to the third floor cover
the door and if the defendant would have gone
up to the third floor, the officer would have
seen him because of the visibility. The
officer knew that the defendant entered the
apartment because there is no other door . . .
[h]e stated that he would have seen him going
up to third floor.
In the magistrate judge's view, its decision then turned on
Cedeño's credibility. The court found Cedeño's explanation to be
truthful. Accordingly, the magistrate judge ruled that no Franks
violation had occurred.
Regardless of the standard of review, the record -- one
which details Cedeño's familiarity with the apartment complex and
the intensity of his investigation -- compels the same finding. No
evidence supports Galán's belief that Cedeño had any intent to
falsify statements or to omit critical information, nor can we even
say that there were any actual falsehoods in the affidavit. The
circumstances also do not suggest that Cedeño was somehow reckless
in writing "entering/exiting" instead of the more precise "I
inferred that he entered or exited." Simply put, neither the
affidavit nor the hearing transcript supports Galán's view.
Instead, as the district court correctly concluded, Cedeño made an
obvious and natural inference from his observations. See United
States v. D'Andrea, 648 F.3d 1, 14 (1st Cir. 2011) (upholding
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denial of a Franks claim when the factual question turned on the
reasonableness of the inference from the facts available).4
We note that accepting this clear and obvious inference
on this record is entirely consistent with the broader purposes
underpinning Franks: to ensure that a warrant judge has adequate
information to make a decision, and to dissuade officers from
misrepresenting their observations. At its core, this requires
that the officer is being "truthful in the sense that the
information put forth is believed or appropriately accepted by the
affiant as true." Franks, 438 U.S. at 165. Here, the warrant
judge had sufficient and accurate information with which to base a
decision, and nothing in the affidavit (or from the hearing
transcripts) leads us to question Cedeño's belief in the statements
he provided. We thus find no reason to disturb the lower court's
Franks determination.5
B. Judicial Conduct at Trial
Lanza and Galán next assert two, interrelated challenges
to the judge's conduct during trial: (1) the judge purportedly
4
Galán also points us to two state court cases to support
his position. See Commonwealth v. Stewart,13 N.E.3d 981 (Mass.
2014); Harris v. State, 184 S.W.3d 801, 813 (Tex. App. 2005). But,
neither of those cases presented a factual background establishing
that the officer's inferences were both obvious and reasonable.
5
The government also offers the good faith exception as a
fall-back position. The clear absence of any error in the
affidavit makes going down this potentially dubious path, see
United States v. Leon, 468 U.S. 897, 922 n.24 (1984), unnecessary.
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intervened exclusively on behalf of, and associated herself with,
the prosecution; and (2) the judge allegedly made improper comments
about Galán's attorney. The parties dispute whether these claims
were preserved or whether plain error review applies. Given that
the defendants cannot succeed under either standard, we need not
dither. Under the usual framework for judicial bias claims, a
party must still show (1) that "the [judge's] comments were
improper" and (2) that there was "serious prejudice." United
States v. Ayala-Vázquez, 751 F.3d 1, 24 (1st Cir. 2014); see also
United States v. Laureano-Pérez, -- F.3d --, 2015 WL 4577763 at *17
(1st Cir. July 30, 2015).
The defendants' first contention is that the judge
excessively interfered on behalf of, and associated herself with,
the prosecution. They begin this argument by focusing on the
instances when the court allegedly assisted the government. The
defendants cite nearly twenty examples where defense counsel
objected to the prosecution's question, and the court, rather than
merely ruling on the objection, responded by asking the witness a
question in a non-objectionable way or by instructing the
government on how to properly phrase the question. E.g., ("So
counsel, what you want to ask is . . . how [the list] comports to
what he used to prepare."); ("[Y]ou stated that at the police
headquarters you actually saw what was seized, is that correct?");
("[A]sk him if he was the arresting agent he will say no and then
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you will ask him if he knows who arrested them. [A]nd then he
testified he alerted the other agents."); ("He wants to know how
did you get the latent print to look at from the object.") In
doing so, the defendants say, the trial judge essentially doffed
her judicial robe and joined the prosecution.
Of course, the mere fact that the judge intervened is not
enough for us to find error. It is well-established that a judge
"is not a mere moderator, but is the governor of the trial for the
purpose of assuring its proper conduct and of determining questions
of law." Quercia v. United States, 289 U.S. 466, 469 (1933). He
or she thus "has a perfect right -- albeit a right that should be
exercised with care -- to participate actively in the trial
proper." Logue v. Dore, 103 F.3d 1040, 1045 (1st Cir. 1997). We
do not examine a single comment by a judge on its own but, instead,
must view it in the context of the entire transcript. United
States v. Espinal-Almeida, 699 F.3d 588, 607 (1st Cir. 2012).
As a comprehensive review of this transcript establishes,
the judge skirted near the line on discrete occasions but, on the
whole, never crossed it. Broadly, the trial lasted 18 days and was
a massive, multi-defendant conspiracy case which the court had the
authority to move through expeditiously. Cf. Deary v. City of
Gloucester, 9 F.3d 191, 194 (1st Cir. 1993) ("The trial judge has
discretion to maintain the pace of trial.") Indeed, the judge was
quite explicit that this was the court's goal. See, e.g., ("I ask
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that the government use the time [a 15 minute break] to identify
the specific spots where they need to go because we need to move
faster.").
More concretely, a pattern emerges with respect to the
judge's participation. The court generally intervened after a
party made a consistent (sometimes repetitive) string of
objections, or when an objection was lodged immediately after the
parties completed a lengthy bench conference discussing that very
same evidentiary issue. In other words, the judge interrupted when
the case was unnecessarily slowing down. While it is true that
this was generally done to the benefit of the prosecution --
though, contrary to what the defendants insinuate, not exclusively
so -- the interactions were largely driven by defense counsels' own
conduct. Defense counsel asserted a plethora of objections (often
repeatedly so or after the judge had made her rulings clear), while
the prosecution exhibited more restraint. Diligent defense of a
client is certainly encouraged, but technical and repetitive
interruptions may properly prompt the trial judge to intervene to
proceed the trial. Indeed, the judge indicated this on several
occasions by saying, for example, "Stop basically, you should stop
objecting on the same grounds it is clear . . . You can further
inquire on cross." The judge was not, despite the defendants
insistence, gratuitously interfering.
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With respect to this initial claim, Lanza and Galán also
invoke instances where they allege that the judge affirmatively
identified herself with the government and thus, in their view,
turned the jury against the defendants. Three statements, at first
blush, could appear fairly damaging. For example, at one point the
judge said, "Then you get the name in, just to avoid the hearsay
that you got . . .[b]ecause the jury is able to compare,
corroborate or discredit whatever the informant said. We need that
in." (emphasis added). On another occasion, the judge alluded to
the defendants' guilt, stating that, the "proper time" for an
argument "would be at the sentence." Finally, in response to a
defendant's objection, the judge said "the government does not have
any interest to portraying something that is not and it is clear
that the pictures were taken after the search was executed."
These statements in which the judge allegedly
"associated" herself with the prosecution are ultimately not
concerning. In a vacuum, each conceivably could be deemed
problematic. In context, however, they were not inappropriate for
the simple reason that the targeted statements were made outside of
the jury's presence. Since our focus centers on whether the
statements affected the jury (or whether they are so egregious on
their own as to demand significant scrutiny -- which was not the
case here) statements that occur outside of the jury's presence are
generally kosher. United States v. Rivera-Rodriguez, 761 F.3d 105,
-18-
111 (1st Cir. 2014) (citing cases emphasizing that the analytical
question for us is whether the jury perceived bias). Thus, this
first claim respecting the judge's intervention falls flat.
In addition to claiming that the judge unduly assisted
the prosecution, Lanza and Galán advance a second argument
respecting the judge's actions; they point to instances when the
judge allegedly badgered Galán's trial counsel. For example, the
judge said "I'm losing my patience with you," and "I want you to
pay attention because I don't want you to open the door, and you
are quite capable." She further stated that he was "mumbling,"
"exhausting her," and was a "very hyper person and how should I
say, extroverted." These statements, they assert, poisoned the
jury against the defendants.
Here, the court's comments, again, were largely prompted
by trial counsel's conduct. Counsel regularly attempted to re-
litigate matters despite the judge's firm rulings or, at other
times, simply lacked traditional courtroom decorum. For instance,
he arrived late to court (on more than one occasion), spoke too
loudly at counsel table or during bench conferences and, at least
once, simply walked out of the courtroom while the judge was
speaking. It is understandable that the judge responded as she
did. Equally relevant, the bulk of the statements that the
defendants point to either occurred at sidebar or were made before
the jury even entered the courtroom. Since the jury never heard
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most of these statements, and since the comments were justifiable,
we find no error.
Even if we were to conclude that the judge's
interventions and comments were improper, and that the jury heard
all of them, the defendants still cannot succeed. Rather than
really engaging on the question of prejudice, they attempt to argue
that we should view any error here as structural. In other words,
the argument runs, the judicial interventions per se require
reversal. The defendants thus posit that we can bypass any
evaluation of prejudice.
That position, however, runs head first into our
precedent which has consistently required proof of "serious
prejudice." We have recently defined that term as requiring "a
reasonable probability that, but for the claimed error, the result
of the proceeding would have been different." Rivera-Rodríguez,
761 F.3d at 112. We have found such prejudice in the past where
the judicial interventions related to an essential piece of
evidence, bolstered a key witnesses's testimony, or constituted a
decree on an issue more properly reserved for a jury. See, e.g.,
Rivera-Rodríguez, 761 F.3d at 111-12; Espinal-Almeida, 669 F.3d at
606; United States v. Ofray-Campos, 534 F.3d 1, 33 (1st Cir. 2008).
As noted, the defendants have not offered much that might
show serious prejudice. To the extent that they focus on specific
interactions, Lanza merely says that "Lanza was convicted on very
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scanty proof and acquitted of four offenses. The judge intervened
most on witnesses who were testifying as to the conspiracy and the
crack cocaine: Serrano and Martínez in particular. Those were the
only two substantive charges which Lanza was found guilty." Galán
only adds that "Galán's trial counsel was the object of much of the
district court's disdain."
Even assuming that this amounts to a developed argument
and is thus not waived, see United States v. Oladosu, 744 F.3d 36,
39 (1st Cir. 2014) ("Because the argument is underdeveloped, it is
waived."), we discern no critical evidence that was either enhanced
or admitted solely on account of the judge's interactions.
Further, even if we were to strip away the judicial interventions
highlighted in the fact section of the defendants' briefs, there
remains enough evidence (when viewing that evidence in a neutral
way) to sustain the convictions. Indeed, three co-conspirators, in
significant detail, tied Lanza directly to the conspiracy and
explained his role as an owner, runner, and enforcer. Two of those
three testified specifically to Lanza's ownership of the green-
capped crack. For Galán, there was not only significant testimony
respecting his interactions with his runner and his drug-ownership,
but there was also substantial physical evidence linking him to the
conspiracy. Simply put, the parties point us to nothing (nor could
we find anything) that would establish the necessary level of
prejudice to sustain this claim.
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C. Jury Charge
Lanza and Galán next point to a number of purported
problems with the judge's charge to the jury. Since the defendants
did not preserve these objections, we review only for plain error.
The defendants must therefore establish that "(1) an error
occurred, (2) the error was obvious, (3) the error affected
substantial rights, and (4) the error seriously impaired the
fairness, integrity, or public reputation of judicial proceedings."
United States v. LaPlante, 714 F.3d 641, 643 (1st Cir. 2013).
The defendants first take issue with the judge's
instruction on conspiracy. After the initial charge, the jury
returned with the question "what is conspiracy?" The parties all
agreed that the judge would bring the jury back into court and
simply re-read the previously provided instruction. At one point,
the court intended to say "[m]ere similarity of conduct among
various people or the fact they may have associated with each other
or discussed common aims and interests does not necessarily
establish proof of the existence of a conspiracy, but you may
consider such factors." However, the judge skipped over the phrase
"interests does not necessarily establish."
Although an error undoubtedly occurred, it can only
constitute plain error where the instruction was reasonably likely
to have misled the jury. United States v. Troy, 618 F.3d 27, 33
(1st Cir. 2010). We evaluate any such error in the context of the
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entire instruction. United States v. Brown, 669 F.3d 10, 29 (1st
Cir. 2012).
Our recent case of United States v. Pennue, 770 F.3d 985
(1st Cir. 2014), provides guidance. There, the district court
erred in discussing the government's burden of proof by, as here,
inadvertently omitting part of the intended instruction. Pennue,
770 F.3d at 989 (noting that the discussion of reasonable doubt was
missing a "negative"). Critically, we found no plain error
because: the word could have been inferred from the context of the
specific instruction; the broader instructions correctly and
repeatedly emphasized the government's burden; and the lack of an
objection manifested the relative unimportance of the mistake.
These factors animate the same result here. First, no
impermissible instruction could have been inferred by the jury as
a result of the mistake. That is, the judge skipped the phrase
"interests does not necessarily establish" before saying, "but you
may consider it such" when discussing what did and what did not
constitute a conspiracy. That limiting phrase ("but you may
consider it") only makes sense if the prior proposition is limited
in some way; i.e. it would be impossible to reconcile "does
necessarily" establish proof of a conspiracy with "but you may
consider it such." In other words, even if the jury were confused
by the omission, it would have been impossible for the jury to have
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assumed that similarity in interests and conduct did automatically
permit a finding of a conspiracy.
Moreover, at the point the judge made this mistake, the
court had already properly defined a conspiracy both during the
initial charge and again in response to the jury question. The
court properly placed the burden on the prosecution to prove "that
the agreement specified in the indictment . . . is one, to have one
common objective, the illegal possession with the intent to
distribute drugs and not some other agreement or agreements existed
between two people to possess with intent to distribute heroin and
or the crack cocaine and or the cocaine and or the marijuana."
Further, the judge stated that the prosecution needed to show "that
the defendant willfully joined in that agreement," and that "those
that were involved share a general understanding of the crime . . .
to act voluntarily and intelligently with the specific intent that
the underlying crime be committed." Perhaps most critically, the
judge added "on the other hand a person who has no knowledge of a
conspiracy but simply happens to act in a way that furthers some
object or purpose of the conspiracy, does not thereby become a
conspirator." We are satisfied that, as a whole, the instructions
conveyed the proper definition of a conspiracy. See United States
v. González-Vélez, 466 F.3d 27, 35 (1st Cir. 2006).
We note finally that, just as in Pennue, no one objected
to the missing instruction. Although not dispositive on its own,
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the fact that three defense attorneys failed to catch the mistake
sheds light on its de minimis impact. This error is thus far from
significant enough to have affected either the meaning of the
instructions or the jury's verdict. No remand is therefore
warranted.
Galán next challenges the judge's instruction (or lack
thereof) on the intersection of the jury's drug quantity finding
and the ultimate sentence imposed. He specifically takes aim at
the phrase "I advise you that sentencing, under the law, is an
issue that remains within the sole discretion of the Court. If you
find any one of the defendants guilty, it will then be my job to
decide what punishment should be imposed." He contends that this
violated the requirement in Alleyne v. United States that a jury
must make certain factual findings when they implicate a mandatory
minimum sentence. 133 S. Ct. 2151, 2156 (2013).
No error occurred here. As a factual matter, Galán
ignores another part of the jury instructions. There, the judge
specifically noted that the jury would have to make findings "under
the standard of proof beyond a reasonable doubt," respecting the
quantity of the substances involved "which may affect the potential
sentence." Compare United States v. Pizarro, 772 F.3d 284 (1st
Cir. 2014) (finding error where the court fails to instruct at all
on the requirement of the drug quantity finding). If there were
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any doubt, the special verdict form also emphasized that the jury
had to make that determination beyond a reasonable doubt.
More pointedly, there was nothing legally incorrect about
the cited instruction. We have noted since Alleyne that sentencing
remains in the hands of the judge regardless of whether certain
facts that implicate a mandatory minimum or statutory maximum go to
the jury. See United States v. Breton, 740 F.3d 1, 19 (1st Cir.
2014). Since the judge remains responsible for sentencing after
Alleyne, it is perfectly acceptable -- assuming, of course, that
the requirements of Alleyne are actually satisfied -- for the court
to inform the jury of this uncontroversial proposition.6
D. Evidentiary Sufficiency and Prejudicial Variance
Unlike Galán and Lanza, who focus on a wealth of
different issues, Nieves' appeal principally targets the adequacy
of the evidence. In doing so, he asserts a traditional sufficiency
of the evidence claim and a prejudicial variance charge. We
address each in turn.
We start with the sufficiency claim, which engenders de
novo review, viewing the evidence in the light most favorable to
the jury's verdict. United States v. Appolon, 695 F.3d 44, 55 (1st
6
We make one passing note respecting the court's special
verdict form. That form implied that the jury needed to find the
defendants not guilty beyond a reasonable doubt. We have recently
admonished the use of this form in United States v. Rodríguez, 735
F.3d 1, 11-14 (1st Cir. 2013). Nonetheless, we concluded in that
case that its use did not constitute plain error. We have no
reason to rule otherwise in this case.
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Cir. 2012). Nieves argues that, at most, the evidence established
that he was present at the El Prado housing complex; he protests
that it did not show that he was part of the conspiracy. Instead,
he contends that all of the evidence tying him to the conspiracy
was "minimal, general, and devoid of details." He goes to great
lengths to attack the credibility of the co-conspirators and urges
us to minimize, if not outright ignore, their testimony. For
instance, he says that Pizzaro's testimony was general and
internally inconsistent (e.g., he never mentioned Nieves to
officers during an initial investigation into the case). Nieves
also points to the absence of testimony respecting his intent to
join the conspiracy.
Nieves' plea to the contrary, we do not make credibility
determinations when assessing the evidence, but instead ask whether
sufficient evidence existed to support a conviction. United States
v. Rivera-Rodríguez, 617 F.3d 581, 595 n.6 (1st Cir. 2010). Here,
we need not dwell -- the testimony of several witnesses connected
Nieves directly to Alfalfa's organization, which would have
permitted any reasonable jury to find him guilty on count I of the
indictment.
For example, Pizarro testified that Nieves owned the "$12
bag" of marijuana and that Alfalfa permitted Nieves to sell it.
Pizarro further explained that Nieves was always armed and that he
engaged in shootings as part of his protective duties. Pizarro
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next discussed how Nieves was related to others in the
organization, how he took marijuana from him at a drug point on a
specific occasion, and why, as a key enforcer, he was dubbed
"sergeant." Pizarro's testimony alone was sufficient to sustain
the conviction on this count. See, Foxworth v. St. Amand, 570 F.3d
414, 426 (1st Cir. 2009) ("[A] criminal conviction can rest on the
testimony of a single eyewitness. Even if the eyewitness's
testimony is uncorroborated and comes from an individual of dubious
veracity, it can suffice to ground a conviction.").
Additional testimony and evidence also connected Nieves
to the conspiracy. Díaz-Martinez, for example, identified Nieves
as the owner of the "$12 bag" of marijuana, and noted that he had
tallied money with him. Díaz-Martinez further testified that he
witnessed Nieves carrying firearms at Sellés and that Nieves
provided protection at drug points. Relatedly, law enforcement
officers testified to physical evidence that was tied to Nieves.
Such physical evidence included shavings of marijuana, an illegal
firearm, two rifles, and three pistols. In sum, this evidence was
enough to permit a jury to reasonably infer that Nieves intended
to, and then did, join the conspiracy. See, e.g., United States
v. Lizardo, 445 F.3d 73, 81 (1st Cir. 2006).
Nieves next asserts that even if he can be tied to the
"$12 bag" of marijuana, a conviction on that basis constitutes a
prejudicial variance from the charge in the indictment. If
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anything, he argues, the evidence tied him to a different drug and
different housing unit than those identified in the charging
document.
"A variance occurs when the crime charged remains
unaltered, but the evidence adduced at trial proves different facts
than those alleged in the indictment." United States v. Mangual-
Santiago, 562 F.3d 411, 421 (1st Cir. 2009). Any variance must be
"prejudicial" for reversal to be appropriate. Id. Usually, our
inquiry focuses on whether the defendant received adequate notice
to permit him or her to defend against the charges. See United
States v. Rodríguez, 525 F.3d 85, 102 (1st Cir. 2008).
It is true that the government described each defendant's
specific role in the indictment. With respect to Nieves, it
classified him as "the owner of a powder cocaine distribution point
within the Las Flores and Liborio Pubic Housing Projects and acted
as an enforcer and seller within this conspiracy." However, at
another place in the indictment, it details the specific charge
against Nieves. The charge was: "knowingly and intentionally
conspir[ing] . . . to posses with intent to distribute heroin,
cocaine, crack cocaine, marijuana, within 1,000 feet of public
housing unit."
We have consistently found that where the government
charges an individual defendant as part of a broad conspiracy, but
alleges his or her involvement in a specific way, it is not a
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material variance for the government to then prove that the
defendant was part of the very organization in a distinct manner.
For instance, in Rodríguez, the government charged a defendant as
part of a broad conspiracy but linked him to a specific individual
within the organization and accused him of being a leader in the
conspiracy. 525 F.3d at 102-03. Nonetheless, the government
proved that the defendant, although he was part of the conspiracy,
was actually tied to another individual and had a more
circumscribed role. Id. Although the evidence was slightly
different, we still determined that no material variance occurred.
In a similar vein, in United States v. Alicea-Cardoza,
the government charged the defendant as being part of a conspiracy
but described him as a runner, even though at trial it was
established that the defendant was a triggerman. 132 F.3d 1, 6
(1st Cir. 1997). We noted that "the error in the indictment was
not so grave" since the defendant knew he was on trial for being
part of the broader conspiracy. Id. Indeed, "so 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." Id.
These cases emphasize that our focus is targeted to
whether the government has proved the specific elements of the
conspiracy alleged in a manner that does not vary from the
indictment to an extent that unfairly handicaps or misleads the
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defense. United States v. Mubayyid, 658 F.3d 35, 48-54 (1st Cir.
2011). This rule makes sense since the goal of the prejudicial
variance analysis is, in part, to determine whether the indictment
put the defendant on notice of the charge the government was going
to seek to prove at trial. Rodríguez, 525 F.3d at 102 (citing
United States v. Balthazard, 360 F.3d 309, 314 (1st Cir. 2004)).
Nieves, like the defendants in the cases discussed, has
failed to show how any prejudicial variance occurred. Although the
government proved that he was involved in the organization in a
slightly different way than originally charged (that is,
responsible for a different drug type and centered at a different
housing unit), the government nevertheless: (1) alleged and
established the existence of the conspiracy; and (2) alleged and
proved Nieves' involvement in that very conspiracy. The
discrepancy between what was alleged in the indictment and what
was established at trial, was not so different that Nieves can now
claim that he lacked notice of the crime that the government was
seeking to prove. Nor are there any other hints in this record
that he was otherwise prejudiced from the minor differences.
Accordingly, no material variance exists under these circumstances.
E. Alleyne and Conspiracy Drug-Quantity Findings
The three defendants finally take aim at their sentences.
Principally, they disagree with the district court's adoption of
certain Guidelines enhancements. We find no errors, and single out
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only one point for discussion: Nieves' argument in his Federal Rule
of Appellate Procedure 28(j) letter that the district court
violated Alleyne in making certain drug-quantity findings. As it
is not preserved, we review the claim for plain error.
In establishing Nieves' base-offense level under the
Guidelines, U.S.S.G. §2D1.1(c)(1), the district court adopted the
jury's findings respecting the amount of drugs that Nieves was
responsible for on count one, the broad conspiracy charge. This
contributed to setting his base-offense level at 34. Nieves argues
that the district court committed an Alleyne error when it made
this drug-quantity determination as it subjected him to an
"enhanced sentence." He also seems to argue, although just barely,
that the court utilized these findings to subject him to a
statutory mandatory-minimum.
Nieves' argument that the district court violated Alleyne
by finding certain facts for Guidelines purposes is foreclosed by
our precedent. As we have noted, "factual findings made for
purposes of applying the Guidelines, which influence the sentencing
judge's discretion in imposing an advisory Guidelines sentence and
do not result in imposition of a mandatory minimum sentence, do not
violate the rule in Alleyne." United States v. Ramírez-Negrón, 751
F.3d 42, 48 (1st Cir. 2014); see also United States v. Correy, 773
F.3d 276, 280 n.4 (1st Cir. 2014). Accordingly, Nieves' contention
necessarily fails.
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To the extent that Nieves argues that the court
improperly subjected him to a statutory mandatory-minimum based on
its drug-quantity findings, the record appears to show that the
court actually imposed a sentence based purely on Guidelines
considerations. As Ramírez-Negrón noted, Alleyne only applies
where "the defendant has been convicted and sentenced under the
aggravated version of the statute -- that is, where an enhanced
mandatory minimum applies." Ramírez-Negrón, 751 F.3d at 49
(emphasis added). Although the district court in this case made a
passing reference that the amount of drugs "is the minimum pursuant
to the statutory minimum," its actual sentencing decision was based
purely on Guidelines considerations and the factors enumerated in
18 U.S.C. § 3553(a). See id. at 50. Indeed, even where the court
made the drug quantity findings, it did so exclusively in the
context of determining the defendant's base-offense level under the
Guidelines. We are thus inclined to say that Alleyne does not even
apply in this case.
In any event, we need not conclusively make that
determination since, even assuming that Alleyne applies, no error
occurred. Our decision in United States v. Acosta-Colón, 741 F.3d
179 (1st Cir. 2013), is instructive. In that case, the jury, like
the one in this case, made individualized findings that each
defendant conspired to possess and distribute a specific quantity
of drugs. The judge then utilized that precise number to determine
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the quantity of drugs the defendant was responsible for. Id. at
192. We found no error because "the jury's individualized drug-
quantity findings still [the defendant's] cry that no
individualized findings drove this part of the judge's sentencing
decision." Id.
As in Acosta-Colón, the district court here utilized a
special verdict form requiring the jury to make certain drug-
quantity findings. The form asked the jury, with respect to each
drug type and each defendant, "Do you unanimously agree, by proof
beyond reasonable doubt, that the quantity of substance containing
a detectable amount of [drug] which the defendant conspired to
posses with the intent to distribute was: [amount]." Since the
jury did just that, the court acted appropriately in attributing
that precise amount to Nieves.7
III.
Accordingly, we affirm the appellants' convictions and
sentences.
7
Nieves also contends that the amount attributed to him was
clearly erroneous. He is incorrect. The evidence was more than
enough to both situate Nieves as part of the broad conspiracy and
to connect him to the specific amount of drugs he could reasonably
have foreseen as flowing through the conspiracy. Indeed, given the
length of time that Nieves was involved in the conspiracy (seven
years), and his significant role in it, the amount adopted by the
jury (1 kilo of heroin, 50g of crack, 5 kilos of cocaine, 100 kilos
of marijuana) was on the low end of what a reasonable fact-finder
could have attributed to him.
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