United States v. Paz-Alvarez ( 2015 )

United States Court of Appeals
For the First Circuit
Nos. 13-2098, 13-2101
UNITED STATES OF AMERICA,
Appellee,
v.
ANGEL PAZ-ALVAREZ and LUIS MARRERO-MARRERO,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Selya, Circuit Judge,
Souter,* Associate Justice, and
Lipez, Circuit Judge.
Raymond Rivera Esteves for appellant Paz-Alvarez.
Javier A. Morales-Ramos for appellant Marrero-Marrero.
Juan Carlos Reyes-Ramos, Assistant United States Attorney,
with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, were on brief, for appellee.
August 21, 2015
* Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
LIPEZ, Circuit Judge. Appellants Angel Paz-Alvarez
("Paz") and Luis Marrero-Marrero ("Marrero") were convicted for
their roles in a drug trafficking conspiracy. Together, they built
sophisticated secret compartments ("clavos") in boats designed to
smuggle hundreds of kilograms of cocaine into the United States.
They argue that their convictions should be vacated because of
errors in the jury instructions. In addition, Paz challenges the
sufficiency of the evidence and the two-level sentence enhancement
he received for using a "special skill," while Marrero argues that
the conspiracy statutes are unconstitutional as applied to him,
that the admission of hearsay evidence gave rise to a prejudicial
variance, and that there was cumulative error. Finding no errors
and the evidence sufficient, we affirm.
I. Background
A. Facts
Since one of the claims addressed in this opinion is a
challenge to the sufficiency of the evidence, we recount the facts
in the light most favorable to the verdict. See United States v.
Rodríguez-Soler, 773 F.3d 289, 290 (1st Cir. 2014).1 In 2009, Nick
Irizarry-Rosado ("Irizarry") and Edwin Retamar-Oriol ("Retamar")
went into business together smuggling cocaine into Puerto Rico.
1Paz challenges the sufficiency of the evidence. We do not
think that Marrero is prejudiced by the application of this
standard because the substantive argument for one of his claims
is, in essence, a sufficiency challenge. See footnote 16, infra.
- 2 -
They had met while in the mutual employ of a Puerto Rico drug
trafficker, but Irizarry and Retamar had grown dissatisfied with
their employer's way of doing business. Using one of their former
employer's boats and Irizarry's contacts in the Dominican
Republic, they embarked on an independent venture and successfully
smuggled twenty kilograms of cocaine into Puerto Rico.
With the profits from their first solo smuggling job,
they purchased a vessel of their own, the Sheymarie. They quickly
put the Sheymarie to use, successfully smuggling another 100
kilograms of cocaine into Puerto Rico. Encouraged by the success
of that undertaking, their contacts in the Dominican Republic then
proposed smuggling a larger quantity of cocaine, specifically, 500
kilograms. Irizarry and Retamar agreed that they would take on
the larger load and, to accomplish the task, purchased a second
vessel, the Such Is Life.
Problematically, the Such Is Life was not already
outfitted with a clavo large enough to smuggle 500 kilograms of
cocaine. Consequently, Irizarry and Retamar asked drug dealers
with whom they were in contact to recommend individuals with the
skills necessary to build hidden compartments in their boat. Paz
and his assistant, Marrero, came highly recommended. They had
built "several" clavos in the past for the drug dealers Irizarry
and Retamar consulted and had reportedly done "a good job."
- 3 -
After Paz and Marrero were assured that Irizarry and
Retamar could be trusted, Paz, Marrero, and a third clavo builder,
Jonathan Delgado-Flores ("Delgado"), met with Irizarry and Retamar
in Puerto Rico. At the meeting, Irizarry and Retamar told the
clavo builders that they needed a secret compartment built in the
Such Is Life large enough to hold 500 kilograms of cocaine. Paz
promised that "it would be done." Paz, Marrero, Irizarry, and
Retamar then met several more times to plan the clavo.
In September 2009, Irizarry, Retamar, Paz, Marrero, and
Delgado met inside the Such Is Life to discuss the completed
clavo's operation. A sixth individual was also present at that
meeting: Ramon Alvarado-Ignacio, who went by the moniker "Moncho"
and administered the marina where the Such Is Life was harbored.
Moncho was secretly a government informant, wired to record the
meeting. Paz, however, was suspicious of Moncho and refused to
discuss the clavo's operation in front of him. Moncho left the
room, leaving the door open, and Paz instructed another person in
the room to close the door so Moncho could not hear how to operate
the secret compartment. Several minutes later, when that portion
of the conversation was concluded, Moncho was permitted to reenter.
At the close of the meeting, Retamar told Paz that they
needed a clavo built in their other boat, the Sheymarie. Soon,
Paz and Marrero were at work on two secret compartments in that
vessel: they enlarged an existing clavo and built a second one.
- 4 -
Within a month, however, law enforcement officials detected
controlled substances onboard the Sheymarie and seized her.
On November 10, 2009, Irizarry, Retamar, Paz, and
Marrero again met in Puerto Rico, this time to discuss building an
additional compartment in the Such Is Life. A second compartment
was needed because 500 kilograms of cocaine would not comfortably
fit in the first clavo.2
Two days later, Retamar, Paz, Marrero, and others met in
Puerto Rico to discuss the new clavo. They also discussed the
upcoming trip, which was being coordinated with the Dominican
contacts, to smuggle 500 kilograms of cocaine from Venezuela into
Puerto Rico by way of a rendezvous point on the open sea near St.
Croix. Retamar invited Paz, Marrero, and Delgado to join him on
the voyage, and Marrero and Delgado agreed to go. Later, however,
Marrero changed his mind; hence, neither he nor Paz accompanied
Retamar on the drug-smuggling excursion. In December 2009, with
the new clavo completed, Delgado and Retamar took the Such Is Life
2 The first clavo had been built in a space that had a small
motor and two rods that held the propellers. After
"reinvestigat[ing]" that site, Retamar and his cohorts "found out
it was too uncomfortable to do it [i.e, to store the cocaine]
there. And we changed it." In other words, since putting the
cocaine in the first clavo was "too difficult," the first clavo
was "cancelled" (Paz contends this means "dismantled") and a second
clavo was constructed elsewhere on the boat. Trial Tr. Day 2 at
95-99, May 9, 2013.
- 5 -
to the rendezvous point.3 The mission was unsuccessful, though,
because the supplier never arrived.
At some point after that, Irizarry and Retamar parted
ways. Retamar launched an independent operation using a new
vessel. However, federal authorities soon arrested Retamar,
seizing his new boat and the drugs onboard. Retamar then began
cooperating with the authorities.
Under the direction of federal agents, Retamar reached
out to Irizarry, ostensibly to resume business together. Retamar
was actually helping to set up a sting operation: a voyage on which
Irizarry and other conspirators would be caught smuggling drugs.
As planned, Irizarry took the Such Is Life on a drug-smuggling
mission and loaded it with cocaine. On its way back to Puerto
Rico, however, the Such Is Life encountered mechanical trouble and
stalled in the water. Federal agents rushed in, seizing the boat.
Agents from U.S. Customs and Border Protection,
including Agent Rafael Reyes ("Reyes"), searched the Such Is Life
for contraband. Reyes had ten years of experience on the anti-
smuggling team, but he nevertheless struggled to find the
sophisticated clavos that Paz and Marrero had constructed. Reyes
and his team ultimately uncovered the clavos and found 150
kilograms of cocaine within.
3
Delgado's job was to operate the complicated mechanism for
opening and closing the clavo.
- 6 -
B. Procedure
In September 2012, a grand jury returned an indictment
charging the appellants and nine others with: one count of
conspiring to possess with intent to distribute controlled
substances, in violation of 21 U.S.C. §§ 846, 841(a)(1), and
841(b)(1)(A)(ii); and one count of conspiring to import a
controlled substance, in violation of 21 U.S.C. §§ 963, 952,
960(a)(1), and 960(b)(1)(B).4
Paz and Marrero were tried together.5 The government's
case relied heavily on cooperating witness Retamar, whose
testimony comprised most of the first two days of the three-day
trial. The jury returned a verdict of guilty on both counts as to
both Paz and Marrero. On the same verdict sheet, the jury was
asked whether "more than 5kg of cocaine" or "less than 5kg of
cocaine" were involved in the conspiracy. The jury found that
"more than 5kg of cocaine" were involved.
At sentencing, the district court determined that Paz's
base offense level ("BOL") under the Sentencing Guidelines was 38
because, by a preponderance of the evidence, over 150 kilograms of
4
Despite the two counts, we will follow the parties' lead
and refer to "the conspiracy," singular.
5
Delgado pleaded guilty to the importation count and, on the
government's motion, the distribution count was dismissed. The
district court sentenced Delgado to 135 months' imprisonment and
we upheld the sentence. See United States v. Delgado-Flores, 777
F.3d 529 (1st Cir. 2015).
- 7 -
cocaine were involved in the conspiracy. Two levels were added to
the BOL because Paz used a special skill, resulting in a total
offense level of 40, with a corresponding Guidelines range of 292
to 365 months. The court sentenced Paz to 292 months'
imprisonment.
The court also set Marrero's BOL at 38 based on its
finding that the conspiracy involved more than 150 kilograms of
cocaine. The court then reduced his BOL to 28 for, among other
factors, minimal participation, yielding a Guidelines range of 78
to 97 months' imprisonment. However, the jury's finding that more
than five kilograms of cocaine were involved in the conspiracy
triggered a 120-month statutory minimum sentence. Hence, Marrero
was sentenced to 120 months' imprisonment.
Paz and Marrero each appeal their sentences and
convictions on multiple grounds, some overlapping.
II. Joint Issues
Appellants make two challenges to the jury instructions.
First, they contend that the court did not properly charge the
jury with the mens rea required for conspiracy. Second, they argue
that the court did not properly instruct the jury to apply the
reasonable doubt standard to its finding that more than five
kilograms of cocaine were involved in the conspiracy.
- 8 -
A. The Intent Instruction
To support a conviction for conspiracy, the evidence
must show (1) the existence of a conspiracy, (2) the defendant's
knowledge of the conspiracy, and (3) the defendant's knowing and
voluntary participation in the conspiracy. United States v.
Dellosantos, 649 F.3d 109, 116 (1st Cir. 2011). "Under the third
element, the evidence must establish that the defendant both
intended to join the conspiracy and intended to effectuate the
objects of the conspiracy." Id.
The court instructed the jury on the third element of
conspiracy as follows: "Here the allegation is that Mr. Paz and
Mr. Marrero joined the conspiracy knowingly and willfully . . . .
Acting knowingly and willfully, I already told you, means to do
something that the law forbids. It means to act voluntarily and
intelligently, and with a specific intent that the conspiracy be
successful."6
6 In full, the relevant instructions were:
Here the allegation is that Mr. Paz and
Mr. Marrero joined the conspiracy knowingly
and willfully . . . . Acting knowingly and
willfully, I already told you, means to do
something that the law forbids. It means to
act voluntarily and intelligently, and with a
specific intent that the conspiracy be
successful. That is to say, with a bad purpose
to disobey or disregard the law, and not
because of mistake, accident, or other
innocent reason.
- 9 -
Paz and Marrero argue that the court did not adequately
instruct the jury that the requisite intent for conspiracy is two-
pronged, i.e., that a defendant must both intend to join the
conspiracy and intend that the conspiracy achieve its aim. United
States v. Gonzalez, 570 F.3d 16, 24 (1st Cir. 2009). Consequently,
they argue, the court's instructions allowed the jury to convict
them merely because they knew about the conspiracy.7 They admit
that they knew the conspiracy would use their clavos to smuggle
drugs, but insist that they were indifferent to the conspiracy's
success and, hence, did not join it. See United States v. Burgos,
Proof that a defendant willfully joined
in the agreement must be based upon the
evidence of his own words and/or actions. . . .
Even if the defendant was not part of the
agreement at the very start, the defendant can
be found guilty of the conspiracy if the
Government proves that the defendant willfully
joined the agreement.
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 of
the conspiracy, does not thereby become a
conspirator. The crime of conspiracy is
complete upon the agreement to participate in
such a way in which you take steps to make the
criminal venture happen, succeed.
7 Marrero suggests, though does not meaningfully argue, that
the court's failure to properly charge the jury with the full
intent requirement constituted structural error. However, "a jury
instruction that omits an element of the offense" is not structural
error. Neder v. United States, 527 U.S. 1, 8 (1999).
- 10 -
703 F.3d 1, 11 (1st Cir. 2012) ("[W]e have suggested that it is
not reasonable to conclude that a defendant who is 'indifferent'
to the conspiracy was a member of it."). Below, they sought to
add language to the instructions that would have made the two-
pronged nature of the requisite intent more explicit, but the
district court declined to add the language they proposed.8
Our review of a court's refusal to give a requested
instruction is de novo. United States v. Baird, 712 F.3d 623, 628
(1st Cir. 2013). When, as here, the evidence is sufficient to
support a requested instruction, our review proceeds in three
steps: "We will reverse a district court's decision . . . only if
the [requested] instruction was (1) substantively correct as a
matter of law, (2) not substantially covered by the charge as
rendered, and (3) integral to an important point in the case so
that the omission of the instruction seriously impaired the
defendant's ability to present his defense." Id. Paz and
Marrero's challenge turns on the second step, whether the requested
8
At trial, the defendants offered language from the Pattern
Criminal Jury Instructions for the District Courts of the First
Circuit § 4.18.371(1) (updated Apr. 21, 2015) and from Burgos, 703
F.3d at 11. In addition, during an in-chambers conference, Paz
sought a "negative Direct Sales instruction," which would have
explained that a defendant's knowledge that his goods or services
will be used for an illegal purpose is not enough to prove that he
intended to join the conspiracy. See United States v. Brandon, 17
F.3d 409, 449 (1st Cir. 1994); Direct Sales Co. v. United States,
319 U.S. 703, 712 (1943).
- 11 -
instruction was substantially covered. The district court has
broad discretion to determine "the precise manner that it explains
legal concepts to the jury." United States v. McFarlane, 491 F.3d
53, 59 (1st Cir. 2007). The court need not accept verbatim the
parties' preferred language. Id.
Here, the instruction explicitly stated the requirement
that the defendants join the venture "knowingly and willfully,"
and that a finding of guilt depends on whether they acted "with a
specific intent that the conspiracy be successful." The court
further instructed, "Even if the defendant was not part of the
agreement at the very start, the defendant can be found guilty of
the conspiracy if the Government proves that the defendant
willfully joined the agreement." The court's emphasis on willfully
joining the conspiracy with the intent that it be successful was
sufficient to convey the intent requirement to the jury. See
Gonzales, 570 F.3d at 24 (equating the two-pronged intent
requirement with an instruction that a defendant "willfully" join
the conspiracy). Although the instructions might have been clearer
if the court had adopted the language that the defendants proposed,
we conclude that the instructions as rendered substantially
covered the dual intents required for a conspiracy conviction and
did not allow the jury to convict the defendants based solely on
their knowledge that the secret compartments they built would be
used for illegal purposes.
- 12 -
B. The Drug Quantity Instruction
The district court based its sentences on the jury's
finding that more than five kilograms of cocaine were involved in
the conspiracy. Consequently, the court sentenced Paz and Marrero
under 21 U.S.C. § 841(b)(1)(A), which mandates a sentence of ten
years to life when five kilograms or more of cocaine are involved
in the conspiracy. Other than the fact of a prior conviction, any
fact that increases the mandatory minimum or maximum sentence must
be submitted to a jury and proved beyond a reasonable doubt.
Alleyne v. United States, 133. S. Ct. 2151, 2155 (2013) (minimum);
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (maximum). Paz
and Marrero argue that the district court failed to instruct the
jury that the drug amount had to be found "beyond a reasonable
doubt." Therefore, they assert, there was no proper finding on
drug quantity, and they should have been sentenced under 21 U.S.C.
§ 841(b)(1)(C), which provides a sentencing range of zero to twenty
years when drug quantity is not determined. We conclude there was
no error in the court's instructions as rendered.9
Here, the court began its instructions with a full
explanation of the reasonable doubt standard, the government's
9Although Marrero concedes our review of this issue is for
plain error, Paz contends the issue was preserved below because a
relevant requested jury instruction was discussed and rejected in
the trial judge's chambers. The defendants' claim fails under any
standard of review.
- 13 -
burden to prove guilt beyond a reasonable doubt, and a defendant's
right to rely on the government's failure "to establish beyond a
reasonable doubt any element of a crime charged against him."
Later in its instructions, the court discussed the indictment,
which charged the defendants with participating in a conspiracy
involving more than five kilograms of cocaine. The court did not
specifically refer to drug quantity at that point, but explained
that the indictment "is simply an accusation" and that "the
[g]overnment has to prove the defendants' guilt beyond a reasonable
doubt." Then, explaining the elements of conspiracy, the court
reiterated, "the [g]overnment must prove beyond a reasonable doubt
that those involved shared a general understanding about the
crime." Continuing to discuss the elements of conspiracy, the
court stated: "You need not find that a defendant agreed
specifically to or knew about all the details of the crime . . . .
But the [g]overnment must prove beyond a reasonable doubt that the
defendant knew the essential features and general aims of the
criminal venture."
With the elements of conspiracy explained, the court
then discussed jury deliberation procedures: selection of a
foreperson, the requirement that the verdict be unanimous, each
juror's duty to decide the matter for him- or herself, and the
need to examine and reexamine one's position while maintaining
- 14 -
one's honest convictions. The court then discussed the verdict
form:
The verdict form that you will use is
this one that I have prepared. Very simple
form. It talks about Count I and Count II,
and simply asks you whether you find Mr. Paz
and Mr. Marrero guilty or not guilty as
charged.
I am also asking you another question.
How much cocaine is involved in this
conspiracy? That's the question, and the
answer must be one of these two. More than
five kilos of cocaine, or less than five kilos
of cocaine. I don't want you to give me a
specific. I just want you to tell me whether
it's more than five or less than five. That's
all.
According to Paz and Marrero, the district court's error
was twofold: first, it did not include drug quantity in its
discussion of the elements of conspiracy, and, second, it did not
reiterate the reasonable doubt standard in its discussion of the
verdict form, when the court asked the jury to determine drug
quantity. This approach, they contend, permitted the jury to find
drug quantity by a less stringent standard, thus violating their
Fifth Amendment right to Due Process and their Sixth Amendment
right to a jury verdict governed by the reasonable doubt standard.10
10
See Sullivan v. Louisiana, 508 U.S. 275, 278 (1993) ("It
is self-evident, we think, that the Fifth Amendment requirement of
proof beyond a reasonable doubt and the Sixth Amendment requirement
of a jury verdict are interrelated.").
- 15 -
We review the instructions as a whole, not piecemeal.
United States v. Melendez, 775 F.3d 50, 55 (1st Cir. 2014);
Gonzalez, 570 F.3d at 21. Assessing whether the jury was properly
charged with the reasonable doubt standard, "the proper inquiry is
not whether the instruction 'could have' been applied in an
unconstitutional manner, but whether there is a reasonable
likelihood that the jury did so apply it." Victor v. Nebraska,
511 U.S. 1, 6 (1994).
We acknowledge that the instructions might have been
better if the court had discussed drug quantity alongside the other
elements of the crime, or if the court had reiterated the
reasonable doubt standard when it instructed the jury to make a
finding on drug quantity. Nevertheless, the court repeatedly
emphasized the reasonable doubt standard throughout the
instructions. The drug quantity determination was then grouped
together with the court's explanation that the jury would be asked
to determine whether the defendants were guilty of conspiracy, a
determination that the instructions made unequivocally subject to
the reasonable doubt standard. Furthermore, the jury had a copy
of the indictment during its deliberations, and the court
emphasized that the accusations in the indictment, which included
an accusation that the conspiracy involved more than five
kilograms, had to be proved beyond a reasonable doubt. Hence, we
do not think that there is "a reasonable likelihood that the jury
- 16 -
understood the instructions to allow conviction" without proof
beyond a reasonable doubt of every element of the charged offense,
including drug quantity.
Contrary to Paz and Marrero's assertion, this case is
distinguishable from United States v. Delgado-Marrero, 744 F.3d
167 (1st Cir. 2014). In Delgado, the court instructed the jury on
the elements of conspiracy, but did not ask the jury to make a
finding as to the quantity of drugs involved. Id. at 183. After
the jury deliberated and returned a guilty verdict, the court sent
the jury back for a second deliberation to determine drug quantity,
stating, "It's like another deliberation under the same terms and
conditions." Id. On appeal, the government argued that the
district court's "same terms and conditions" instruction was
sufficient to convey to the jury that the reasonable doubt standard
still applied. Id. at 187. However, in large measure because the
jury had already returned a verdict before being asked to
deliberate a second time, we held that instructional error had
occurred. "[G]iven the timing and manner in which the question
was presented, the jurors understandably may have failed to
appreciate that the additional question represented something more
than an inconsequential afterthought . . . ." Id.
The facts here differ significantly from those in
Delgado. The finding on drug quantity was made as part of the
original deliberations, not following an initial verdict during
- 17 -
resumed deliberations. Drug quantity was also included on the
same verdict form as that used to determine the defendants' guilt
or innocence on the substantive charges. We do not think "there
is a reasonable likelihood," Victor, 511 U.S. at 6, that a juror
in this case would have understood the instructions to permit the
application of anything other than the reasonable doubt standard
to the assessment of drug quantity. Therefore, the court did not
fail to charge the jury with the reasonable doubt standard on an
element that increased the mandatory minimum or maximum sentences.
III. Paz's Claims
Paz argues that the evidence was insufficient to support
his conviction and that the district court erroneously increased
his BOL by two levels for use of a "special skill."
A. Sufficiency of the Evidence
Our review of the sufficiency of the evidence is de novo.
United States v. Rodríguez-Martinez, 778 F.3d 367, 371 (1st Cir.
2015). We view the evidence in the light most favorable to the
verdict, giving "equal weight to direct and circumstantial
evidence." United States v. Appolon, 715 F.3d 362, 367 (1st Cir.
2013). Importantly, the relevant inquiry is not whether a
reasonable jury could have acquitted the defendant, but rather
whether a reasonable jury "could have found that the government
proved each element of the crime beyond a reasonable doubt." Id.
(internal quotation marks omitted).
- 18 -
As we explained above, to convict Paz of conspiracy, the
jury had to find beyond a reasonable doubt that "(1) a conspiracy
existed, (2) the defendant had knowledge of the conspiracy, and
(3) the defendant knowingly and voluntarily participated in the
conspiracy." Dellosantos, 649 F.3d at 116. Paz does not dispute
that a conspiracy existed and that he had knowledge of it. His
challenge to the sufficiency of the evidence is limited to the
third element, under which the government had to prove that he
intended to join the conspiracy and that he intended for its goals
to be accomplished. See id. Paz advances the notion that he was
indifferent to the conspiracy and lacked the requisite intent. He
contends that he was simply "contracted" to perform "work orders"
for clavo-related "services." He emphasizes that his services
amounted to only seven to nine workdays scattered across several
months, after which he was "never . . . seen or heard from again."
There are many ways to show that a defendant intended to
join and advance a conspiracy, even where the defendant never
actually handled the drugs. The defendant's intention to join
"need not be express, but may be shown by circumstantial evidence."
United States v. Portalla, 496 F.3d 23, 26 (1st Cir. 2007). Hence,
"acts that furthered the conspiracy's purposes" may be evidence of
the intent to join. United States v. McDonough, 727 F.3d 143, 156
(1st Cir. 2013). The requisite intent may also be shown through
the knowing provision of peripheral services that aid in one of a
- 19 -
conspiracy's objectives, like the objective to avoid police
detection. Portalla, 496 F.3d at 27. Ancillary functions like
accounting, communications, and strong-arm enforcement are all
examples of peripheral services that, when performed in the service
of drug dealers, can support a conspiracy conviction. United
States v. García-Torres, 280 F.3d 1, 4 (1st Cir. 2002).
Despite the arguably ancillary nature of the services
Paz provided, a reasonable jury could have concluded that Paz's
actions conveyed his intention to join and advance the
conspiracy.11 He participated in planning meetings where the
intended use of his clavos -- drug smuggling -- was made explicit.
He then constructed multiple clavos on two vessels designed for
the specific purpose of storing and secreting cocaine. On these
facts, a jury could reasonably conclude that Paz intended his
ingenious compartments to achieve their aim, namely, that they
conceal hundreds of kilograms of cocaine being smuggled into Puerto
Rico for distribution. In addition, Paz guarded against sharing
11 Paz's invocation of United States v. Moreland, 703 F.3d
976, 984 (7th Cir. 2012), is unpersuasive. In Moreland, the
Seventh Circuit distinguished between co-conspirators and aiders
and abettors, writing, "[K]nowledge of a buyer's intention to
commit a crime with a supplier's goods doesn't imply an agreement
between the buyer and the seller that the buyer do so. That
knowledge, coupled with [supplying the goods,] could make him an
aider and abettor of the buyer's crime but not, without more, a
conspirator with the buyer." Id. Paz fails to acknowledge that
the something "more" required for a conspiracy conviction -- the
intent to join the conspiracy -- may be found circumstantially,
"by words or action." García-Torres, 280 F.3d at 4.
- 20 -
secretive information with someone he thought untrustworthy:
Moncho. That fact would further support a reasonable jury's
finding that Paz wanted his work to advance the conspiracy's
objective of avoiding police detection. No more was required for
a reasonable jury to find that Paz in fact intended to join the
conspiracy and advance its goals.
Paz argues that it is unreasonable to conclude that he
was a member of the conspiracy because members of the conspiracy
did not consider him to be a member. He points, inter alia, to
evidence in the record that Retamar instructed Moncho not to speak
with Paz over the telephone. However, as the government notes,
"the jury could have reasonably construed Retamar's testimony as
showing his concern that police may have tapped Paz's telephone,
unbeknownst to the latter." In addition, based on the fact that
Retamar invited Paz to join him on the conspiracy's largest drug-
smuggling excursion -- the voyage to St. Croix to import 500
kilograms of cocaine -- a reasonable jury could conclude that
members of the conspiracy trusted Paz and considered him to be one
of their own.
Finally, Paz emphasizes that he declined Retamar's
invitation to participate in the voyage to pick up 500 kilograms
of cocaine near St. Croix and was "never . . . seen or heard from
- 21 -
again" after declining that invitation.12 A conspirator need not
know "all of the details of the conspiracy or participate[ ] in
every act in furtherance of the conspiracy." United States v.
Sanchez-Badillo, 540 F.3d 24, 29 (1st Cir. 2008) (internal
quotation marks omitted). Furthermore, an "inactive co-
conspirator is presumed to be a continuing member of an ongoing
conspiracy" unless he withdraws.13 United States v. Ngige, 780
F.3d 497, 503 (1st Cir. 2015) (internal quotation marks omitted).
Here, Paz essentially argues that, because his active
participation came to an end, he never joined the conspiracy at
all. But neither the fact that he declined to participate in one
of the more dangerous aspects of the conspiracy (the drug run),
nor the fact that his active involvement ended once he had
completed the work he agreed to do, precludes a reasonable jury
from finding that he joined the conspiracy when he built the clavos
with the requisite knowledge and intent.
12
Relatedly, Paz insists it is unreasonable to find that he
joined the conspiracy solely on the basis of his association with
Delgado, the clavo-maker who joined Retamar on the drug-smuggling
excursion. Of course, Paz is correct that mere association with
a conspirator is not sufficient to prove beyond a reasonable doubt
that a defendant is also a co-conspirator. See Gonzalez, 570 F.3d
at 22. Here, however, Paz was not merely an associate of Delgado,
but a knowing participant in construction activities that advanced
the conspiracy.
13
Withdrawing from a conspiracy requires that the conspirator
"act affirmatively either to defeat or disavow the purposes of the
conspiracy." United States v. Pizarro-Berríos, 448 F.3d 1, 10
(1st Cir. 2006).
- 22 -
Hence, the record contains ample evidence to support the
jury's finding that Paz was a member of the conspiracy.
B. Sentence Enhancement
Paz appeals the two-level sentence enhancement he
received for "us[ing] a special skill[ ] in a manner that
significantly facilitated the commission or concealment of the
offense." U.S.S.G. § 3B1.3. We review the district court's
factual findings for clear error. United States v. Prochner, 417
F.3d 54, 60 (1st Cir. 2005).
The Guidelines define a "special skill" as "a skill not
possessed by members of the general public and usually requiring
substantial education, training or licensing. Examples would
include pilots, lawyers, doctors, accountants, chemists, and
demolition experts." U.S.S.G. § 3B1.3 cmt. n.4. Paz argues that
he and his assistants were "hired to put covers on already existing
cavities," and that the skills required to do that do not meet the
meaning of a "special skill" as defined in the Guidelines. The
record belies Paz's modest characterization of his work. His
clavos were sophisticated compartments whose construction required
more than a layperson's capabilities in carpentry, circuitry, and
hydraulics. As Agent Reyes explained at trial, Paz had replaced
a wooden table (a piece of wood covering an open space) in the
floor of the Such Is Life with a different, piston-operated table
powered by a car battery. To access the compartment underneath,
- 23 -
a person had to complete an electrical circuit: "out of those
screws [in the floor] . . . they selected two screws that went
down and connected to [other] screws to make contact. So the
person who was to open that needs to know which screws to touch
with which cables to open or close it. There was no way for me
from the outside to figure it out, because there's so many screws
to try to make a combination. . . . I'd be playing the Lotto."
The district court did not clearly err in determining that a member
of the general public would lack the skills necessary to create
such a mechanism.
Paz emphasizes that the offense here is conspiracy -- an
agreement -- and contends that no special skill is required to
make an agreement. The Guideline, however, applies either to
facilitating the crime or concealing it. The purpose of Paz's
work was to conceal the conspiracy by making drugs aboard the Such
Is Life and the Sheymarie difficult to uncover. As indicated by
the testimony of Agent Reyes, Paz achieved that purpose. In sum,
there was no error in the district court's application of the two-
level enhancement for use of a special skill.
IV. Marrero's Claims
Marrero makes three arguments particular to his appeal.
First, he challenges the constitutionality of the conspiracy
statutes as applied to him. Second, he contends that a
Petrozziello error resulted in the improper admission of hearsay
- 24 -
evidence and gave rise to a prejudicial variance. Finally, he
argues that the district court should have granted his Rule 29
motion for cumulative error. We address these arguments in turn.
A. As Applied Challenge to the Conspiracy Statutes
Marrero argues that the conspiracy statutes, 21 U.S.C.
§§ 846 and 963, are unconstitutional as applied to him because
those provisions did not give him fair notice of what constitutes
participation in a conspiracy. In other words, he asserts that he
did not have fair notice that, by knowingly building secret
compartments to smuggle drugs for a drug conspiracy, he could be
held accountable as a co-conspirator.14
Marrero is correct that the Fifth Amendment Due Process
Clause gives him a "right to fair warning of that conduct which
will give rise to criminal penalties." Marks v. United States,
430 U.S. 188, 191 (1977). In claiming a violation of that right,
Marrero relies in particular on the vagueness doctrine, the aspect
of the fair warning requirement that "bars enforcement of 'a
statute which either forbids or requires the doing of an act in
14Since Marrero raises his constitutional argument for the
first time on appeal, our review is for plain error. United States
v. Diaz, 519 F.3d 56, 65 (1st Cir. 2008). Marrero must show "(1)
that an error occurred (2) which was clear or obvious and which
not only (3) affected the defendant's substantial rights, but also
(4) seriously impaired the fairness, integrity, or public
reputation of the judicial proceeding." United States v.
Henderson, 320 F.3d 92, 102 (1st Cir. 2003).
- 25 -
terms so vague that men of common intelligence must necessarily
guess at its meaning and differ as to its application.'" United
States v. Lanier, 520 U.S. 259, 266 (1997) (Souter, J.) (quoting
Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926)).15
Judicial interpretations may clarify an otherwise
imprecise statute. Id. As Marrero concedes, the parameters of
the conspiracy statutes are articulated in our case law. See,
e.g., Burgos, 703 F.3d at 11 (explicating the third element of
conspiracy, knowing and voluntary participation). Marrero
nevertheless asserts that there is "no clear line" between lawful
work on a vessel -- such as installing a GPS, fixing engines, or
building cabinets -- and conduct that "make[s] me a member of a
conspiracy by mere knowledge of the improper intended use of the
vessel and/or my services."
Marrero's argument, however, is flawed because he was
not convicted for "mere knowledge" of the drug conspiracy and the
conspirators' intent to use his services for unlawful ends.
Rather, he was convicted because he was a knowing participant in
the conspiracy. Marrero's attempt to characterize his conviction
15"There are three related manifestations of the fair warning
requirement," namely, the vagueness doctrine, the rule of lenity,
and the principle that a court's "novel construction of a criminal
statute" cannot be applied "to conduct that neither the statute
nor any prior judicial decision has fairly disclosed to be within
its scope." Lanier, 520 U.S. at 266 (discussing "fair warning" in
the context of Fourteenth Amendment Due Process).
- 26 -
as an arbitrary distinction between otherwise lawful activities
therefore misses the mark. In the ancillary functions he
identifies, it is not the nature of the defendant's services but
the intent with which they are provided that distinguishes the
innocent vendor from the co-conspirator.
Hence, Marrero's constitutional challenge fails. The
statutes, in conjunction with our case law, gave him fair warning
that knowingly participating in a drug conspiracy with the
requisite intent could expose him to criminal penalties.16
B. Prejudicial Variance
Marrero contends that the district court erroneously
admitted into evidence "hearsay about unrelated conspiracies and
this amounts to prejudicial variance." We will untangle Marrero's
argument and take the hearsay objection first. We will then
address the multiple conspiracy and prejudicial variance
arguments.
16
To the extent his constitutional argument is really a
mislabeled challenge to the sufficiency of the evidence, his
challenge fails. A reasonable jury could have found that he was
not "indifferent" to the conspiracy but was, rather, a member of
it. See Burgos, 703 F.3d at 11. The jury could have determined
that Marrero "ma[d]e it his own," id., by building secret
compartments that he knew would advance the conspiracy's
objectives of smuggling cocaine for distribution while avoiding
police detection. Marrero further demonstrated his intent to join
the conspiracy by agreeing to join Retamar on the drug run.
Although he later changed his mind and did not go on the drug run,
his initial agreement would nevertheless support a reasonable
jury's conclusion that he was a member of the conspiracy.
- 27 -
1. Hearsay
Marrero challenges the district court's decision to
admit the hearsay testimony of his co-conspirator, Paz. Although
hearsay testimony generally is not admissible, an out-of-court
statement made by a defendant's co-conspirator "during and in
furtherance of the conspiracy" is not hearsay and may be introduced
into evidence. Fed. R. Evid. 801(d)(2)(E), 802. To admit such
evidence, the district court must determine by a preponderance of
the evidence that the declarant and the defendant were members of
the same conspiracy and that the statement was made in furtherance
of the conspiracy. See United States v. Ciresi, 697 F.3d 19, 25
(1st Cir. 2012) (articulating the preponderance standard); United
States v. Goldberg, 105 F.3d 770, 775-76 (1st Cir. 1997)
(explaining that, following United States v. Baines, 812 F.2d 41,
42 (1st Cir. 1987), statements of a co-conspirator made before the
defendant joined the conspiracy are also admissible). In this
circuit, the district court's decision to allow testimony under
the co-conspirator exception is called a Petrozziello ruling,
after United States v. Petrozziello, 548 F.2d 20 (1st Cir. 1977).
A court may provisionally admit a statement under Rule
801(d)(2)(E) and defer its final Petrozziello ruling until the
close of evidence. Ciresi, 697 F.3d at 25. "To preserve a
challenge to a district court's Petrozziello ruling, a defendant
must object on hearsay grounds when his or her co[-]conspirator's
- 28 -
statement is provisionally admitted and must renew the objection
at the close of evidence." Id. at 25-26. Preserved challenges
are reviewed for clear error; unpreserved challenges, for plain
error. Id. at 26.
Marrero has specifically identified only one hearsay
statement that he contends should not have been admitted: Retamar's
testimony that, at their first meeting, Paz told him "it would be
done," meaning, the clavo would be built. Marrero objected when
that statement was admitted into evidence, citing Petrozziello,
and renewed his objection at the close of evidence. Hence, our
review is for clear error.
The preponderance of the evidence easily supports the
district court's assessment that Paz and Marrero were co-
conspirators, just as it supports the court's conclusion that Paz's
statement, "it would be done," was made in furtherance of the
conspiracy. First, Retamar's testimony made clear that Paz and
Marrero were co-conspirators. Retamar testified that Paz and
Marrero attended multiple planning meetings with him to discuss
building clavos, and that, working together, Paz and Marrero built
clavos in both the Sheymarie and the Such Is Life. Second, it is
more likely than not that Paz's statement, "it would be done," was
made in furtherance of the conspiracy because it could easily be
construed as a promise that he and his assistant, Marrero, would
construct secret compartments to aid Retamar in smuggling hundreds
- 29 -
of kilograms of cocaine into Puerto Rico. Therefore, the court
did not err, much less clearly err, in admitting Paz's statement
into evidence.
2. Multiple Conspiracies and Prejudicial Variance
Marrero argues that the district court admitted evidence
of multiple uncharged conspiracies, giving rise to a variance and
prejudicial spillover. A variance occurs when the evidence at
trial "proves different facts than those alleged in the
indictment," such as when the indictment charges one conspiracy
but the evidence supports multiple conspiracies. Dellosantos, 649
F.3d at 116 (internal quotation marks omitted). Three factors
guide our assessment of whether the evidence was sufficient to
prove that a set of criminal activities comprised a single
conspiracy: "(1) the existence of a common goal, (2) overlap among
the activities' participants, and (3) interdependence among the
participants." Ciresi, 697 F.3d at 26. A single conspiracy may
exist even if the participants or their respective roles change
over time. Id.
Even if a defendant proves a variance, he must also prove
that it was prejudicial. Dellosantos, 649 F.3d at 116. Prejudice
may result from evidentiary spillover: "the transference of guilt
to a defendant involved in one conspiracy from evidence
incriminating defendants in another conspiracy in which the
particular defendant was not involved." United States v. Wihbey,
- 30 -
75 F.3d 761, 774 (1st Cir. 1996) (internal quotation marks
omitted). To prevail on an evidentiary spillover claim, the
defendant must prove "prejudice so pervasive that a miscarriage of
justice looms." United States v. Levy-Cordero, 67 F.3d 1002, 1008
(1st Cir. 1995) (internal quotation marks omitted).
Marrero attempts to prove a variance by dividing the
facts temporally into six sequential conspiracies corresponding to
changes in personnel and discrete drug runs.17 The evidence,
however, points to a single conspiracy involving multiple
transactions and players.18 First, Marrero concedes that all six
of the conspiracies he attempts to distill from the fact pattern
share a common goal, namely, to sell drugs for profit. Second,
there is a clear overlap among participants: either Retamar or
Irizarry was involved in every aspect of the conspiracy, often
17The six conspiracies Marrero identifies are: (1) Retamar
and Irizarry's drug smuggling work for their former employer; (2)
Retamar's work (independent of Irizarry) for their former
employer; (3) Retamar and Irizarry's importation of twenty
kilograms of cocaine using one of their former employer's boats;
(4) the conspiracy charged in the indictment, namely, to import
and distribute more than five kilograms of cocaine using the
Sheymarie and the Such Is Life; (5) the conspiracy Retamar ran in
the time between his split with Irizarry and his arrest; and (6)
the sting operation.
18
The government contends that Marrero forfeited his multiple
conspiracies argument for, among other reasons, failing to request
a multiple conspiracy jury instruction. Since Marrero's argument
cannot succeed on the merits, we need not decide whether he
forfeited it.
- 31 -
working in tandem. Finally, the participants worked
interdependently. For example, Marrero provided the secret
compartments that Retamar and Irizarry then used to smuggle drugs.
Looking "to the totality of the evidence to see if it supports a
finding of a single conspiracy," Ciresi, 697 F.3d at 26 (internal
quotation marks omitted), we think the evidence at trial proved
only one ongoing conspiracy that began when Retamar and Irizarry
met and ran until the Such Is Life was confiscated. Hence, there
was no variance.19
C. Cumulative Error
In his final argument, for cumulative error, Marrero
identifies six motions he submitted to the district court and seeks
to incorporate them by reference.20 The substantive argument for
19Marrero's best case for a variance is the evidence
pertaining to Retamar and Irizarry's work for their former
employer. However, the evidence presented on those facts -- the
so-called conspiracies #1 and #2 -- comprised no more than a
handful of pages of the transcript at the very beginning of
Retamar's two-day testimony. Furthermore, that portion of the
testimony was aimed at establishing nothing more than how Retamar
and Irizarry met and how each knew that the other was involved in
drug trafficking. Marrero has not proved that the prejudice
resulting from that testimony was "so pervasive that a miscarriage
of justice looms." Levy-Cordero, 67 F.3d at 1008 (internal
quotation marks omitted).
20The six motions are: a motion for judgment of acquittal
and/or for new trial (DE 250); two motions to dismiss the
indictment (DE 244, 246); two motions in limine regarding the
alleged improper use of transcripts (DE 231, 247); and a motion
for a sentence below the statutory minimum (DE 363).
- 32 -
cumulative error is limited to the following in his opening brief:
"We adopt said documents by reference and request this Honorable
Court to evaluate the arguments presented therein, both de novo as
well as non harmless cumulative error." As the government asserts,
incorporation by reference is an ineffective method of preserving
arguments for appeal. See United States v. Orrego-Martinez, 575
F.3d 1, 8 (1st Cir. 2009) (stating that incorporation of arguments
by reference has been "consistently and roundly condemned"
(internal quotation marks omitted)). Marrero attempts to
elaborate in his reply brief, but he does not sufficiently develop
an argument in support of any of the six motions.21 Hence, his
cumulative error argument, like the arguments in the motions he
seeks to incorporate by reference, is waived. See United States
v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to
in a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived.").
21In support of one of the motions Marrero seeks to
incorporate by reference -- a motion to dismiss Count One of the
indictment because it allegedly used language permitting the jury
to convict him for guilt by association -- he does include a
footnote quoting, but not discussing, Joint Anti-Fascist Refugee
Comm. v. McGrath, 341 U.S. 123, 178-79 (1951), and United States
v. Allen, 670 F.3d 12, 16 (1st Cir. 2012). He notes in his reply
brief on appeal, "We understand that the nature of the defect in
the Indictment is patent and requires no major argumentation." We
reject this attempt to bypass our well-established waiver rules.
- 33 -
V. Conclusion
We conclude that the district court properly instructed
the jury on the elements of conspiracy and adequately charged the
jury to apply the "beyond a reasonable doubt" standard to its
finding on drug quantity. Both of Paz's individual challenges
fail: the evidence was sufficient to support his conviction and
the district court did not err in applying the two-level
enhancement for a special skill. Marrero's challenges also fail:
his argument that the conspiracy statutes are unconstitutional as
applied to him is meritless, his hearsay and prejudicial variance
arguments are unpersuasive, and his cumulative error arguments are
waived. Thus, the defendants' convictions and sentences are
affirmed.
So ordered.
- 34 -