United States v. Camacho-Santiago , 851 F.3d 81 ( 2017 )

United States Court of Appeals
For the First Circuit
No. 14-2232
UNITED STATES OF AMERICA,
Appellee,
v.
CARLOS R. CAMACHO-SANTIAGO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Thompson, Dyk, and Kayatta,
Circuit Judges.
Raul S. Mariani Franco for appellant.
Thomas F. Klumper, Assistant U.S. Attorney, Senior Appellate
Counsel, United States Attorney's Office, with whom Rosa Emilia
Rodríguez-Vélez, United States Attorney, and Mariana E. Bauzá-
Almonte, Assistant U.S. Attorney, Chief, Appellate Division, were
on brief, for appellee.
March 15, 2017

Of the Federal Circuit Court of Appeals, sitting by
designation.
KAYATTA, Circuit Judge. A jury convicted Carlos
Camacho-Santiago ("Camacho") of two counts of drug trafficking
based on his involvement in a criminal conspiracy to move cocaine
in luggage stowed on commercial airline flights from Puerto Rico
to the mainland United States. On appeal, Camacho raises an array
of challenges to his conviction based on the contention that he
was not a member of the conspiracy proven at trial. He also argues
that his conviction depended upon the erroneous admission of
hearsay evidence and that the district court failed to do enough
to ensure the jury could fairly render a verdict. Finding the
evidence sufficient to sustain his conviction as a member of the
conspiracy charged in the indictment and proven at trial, and
finding no other reversible error, we affirm.
I. Background
In May 2012, a grand jury indicted Camacho and nineteen
others on two criminal counts arising out of a drug trafficking
conspiracy. We described the charged conspiracy in our recent
opinion vacating the conviction of another individual, Nelson
Pereira. See United States v. Pereira, 848 F.3d 17, 19–20 (1st
Cir. 2017). In brief, the indictment alleged that Wilfredo
Rodríguez-Rosado ("Rodríguez")--not indicted here--created and ran
an operation using baggage handlers to smuggle cocaine on American
Airlines flights from Puerto Rico to the mainland over roughly a
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ten-year period beginning in 1999. The indictment charged Camacho
with two counts of joining and aiding and abetting this conspiracy.
Rodríguez did not oversee the distribution process in
the continental United States, nor was he the original source of
the cocaine that made its way onto American Airlines flights. The
cocaine was furnished by a variety of suppliers who brought their
cocaine supply to Rodríguez's people and worked with them to get
cocaine packaged and delivered to American Airlines employees at
Luis Muñoz Marín International Airport in San Juan. One such
supplier was Carlos Arce Lopez ("Arce"), who first connected with
Rodríguez through Camacho.
Gerardo Torres Rodríguez ("Torres"), one of the
government's key witnesses against Camacho, testified that
Rodríguez offered to forgive a debt Camacho owed him if Camacho
brought him a new supplier, and that Camacho accepted that offer
by bringing Arce to Rodríguez. According to Torres, on at least
three occasions, Camacho traveled with him to Newark to test the
route for Arce, pick up suitcases of drugs, and collect money to
return to Puerto Rico. Arnaldo Sierra-Menendez ("Sierra") also
testified that Camacho worked for Arce and that on one occasion
when some cocaine went missing, Camacho and Rodríguez confronted
Sierra about his involvement in the drugs' disappearance. Sierra
testified that Camacho pointed a gun at him while asking what
happened to the cocaine and threatening to kill him. The only
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other witness who offered first-hand testimony as to Camacho's
involvement in the conspiracy was Javier Olmo-Rivera ("Olmo"), a
member of Rodríguez's organization who testified that every
supplier had an intermediary who delivered the cocaine to the
airport and facilitated the trafficking group's connection to the
supplier, and that Camacho was the person who delivered Arce's
cocaine.
Rodríguez did not testify, but many other members of the
conspiracy did. Torres and Sierra both testified as to statements
Rodríguez made concerning the conspiracy and Camacho's alleged
role in it, testimony the court allowed as relating out-of-court
statements of a coconspirator. The jury convicted Camacho on both
counts, and the judge sentenced him to 360 months' imprisonment.
This timely appeal followed.
II. Discussion
Camacho begins with two arguments that train on the
nature of the conspiracy proven at trial. He contends that the
evidence was insufficient to convict him of the one conspiracy
charged. Alternatively, he contends that the jury should have
been told more expressly that proof of multiple conspiracies rather
than the one conspiracy alleged in the indictment was not grounds
for conviction. Third, Camacho challenges the admission of what
he says is hearsay evidence. Fourth, he requests a new trial
because he claims the jury was twice contaminated. Fifth, he avers
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that the court read testimony back to the jury during deliberations
without taking adequate steps to ensure the jury did not place
undue weight on what it heard.1 We address these arguments in
their logical order.
A. One Conspiracy, Or More?
The indictment alleged a conspiracy to "possess with
intent to distribute [cocaine]." The specific object of the
conspiracy was "to smuggle into American Airlines commercial
aircrafts, suitcases filled with large amounts of cocaine to be
transported from Puerto Rico to the continental United States with
the intent to generate and obtain large monetary profits." Against
this backdrop, the essence of Camacho's conspiracy-related
arguments is that the evidence showed at least two conspiracies,
not one, and he was not a part of the only one alleged in the
indictment. To demonstrate the existence of at least two
conspiracies rather than one, he describes the evidence as perhaps
showing him in a conspiracy with Arce, as Arce's employee, to
supply cocaine to Rodríguez, who in turn ran a separate conspiracy
1
In the table of contents to his opening brief, Camacho also
lists as one issue for review whether "the district court committed
reversible error by applying a higher than legally mandated
guideline range for Mr. Camacho and when it sentenced Camacho to
360 months based on such erroneous guideline." His briefs, though,
never address this issue or argue that such error occurred. The
issue is therefore 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.").
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to smuggle cocaine into the continental United States. This "two-
conspiracy" description provides the launch pad for two arguments:
the evidence was insufficient to convict Camacho of a single
conspiracy; alternatively, the evidence was at least ambiguous
enough to warrant what Camacho calls a "multiple conspiracy"
instruction. By that he means an instruction telling the jury
that it should decide whether the government has proved one or
multiple conspiracies, and that Camacho must be found not guilty
if he did not join the conspiracy alleged, even if he joined
another. Camacho requested such an instruction, but it was not
given. Because the argument challenging the instructions is an
easier one for a defendant to support, we address it first.
"A trial court should grant a defendant's request for a
multiple conspiracy instruction if, on the evidence adduced at
trial, a reasonable jury could find more than one such illicit
agreement, or could find an agreement different from the one
charged." United States v. Ramírez-Rivera, 800 F.3d 1, 45 (1st
Cir. 2015) (quoting United States v. Brandon, 17 F.3d 409, 449
(1st Cir. 1994)). "To determine whether a set of criminal
activities constitutes a single conspiracy, we generally look to
three factors: (1) the existence of a common goal, (2) overlap
among the activities' participants, and (3) interdependence among
the participants." United States v. Ciresi, 697 F.3d 19, 26 (1st
Cir. 2012). "A general scheme may exist 'notwithstanding
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variations in personnel and their roles over time.'" Id. (quoting
United States v. Shea, 211 F.3d 658, 665 (1st Cir. 2000)). "'The
goal of selling cocaine for profit' satisfies the common goal
requirement. That each defendant had an interest in furthering
the distribution of cocaine is also sufficient evidence that they
shared a common goal with the other participants." United States
v. Portela, 167 F.3d 687, 695 (1st Cir. 1999) (footnotes and
citation omitted) (quoting United States v. Wilson, 116 F.3d 1066,
1075 (5th Cir. 1997)).
We review a preserved challenge to a district court's
decision not to provide a multiple conspiracy instruction for abuse
of discretion, but "[w]e will reverse a district court's decision
not to provide a multiple conspiracy instruction only if the
defendant can show that he suffered substantial prejudice." United
States v. Díaz, 670 F.3d 332, 350 (1st Cir. 2012) (citing United
States v. De La Cruz, 514 F.3d 121, 139 (1st Cir. 2008)). "In the
context of alleged multiple conspiracies, the defendant's main
concern is that jurors will be misled into attributing guilt to a
particular defendant based on evidence presented against others
who were involved in a different and separate conspiratorial
scheme." Brandon, 17 F.3d at 450.
The evidence at trial, to the extent it pointed a finger
at Camacho, was unambiguous on three points: securing a supply of
cocaine was an essential element of Rodríguez's conspiracy to
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distribute; Rodríguez recruited Camacho into the conspiracy to
find a supplier; and Camacho knew, in great detail, how the
smuggling portion of the conspiracy operated, and actually tested
out the route and delivered drugs and money himself. In short, if
the evidence was to be believed at all, there was: (1) "the
existence of a common goal, (2) interdependence among
participants, and (3) overlap among the participants." United
States v. Dellosantos, 649 F.3d 109, 111 (1st Cir. 2011).
The fact that the conspiracy had several integrated
steps does not mean that each step could reasonably be seen as a
separate conspiracy, at least where the evidence shows Camacho was
aware of all the steps. See, e.g., United States v. Hansen, 434
F.3d 92, 101 (1st Cir. 2006) (observing that it was not plainly
erroneous for a district court to refuse to give a multiple
conspiracy instruction where the evidence demonstrated the
defendant knew the extent of the conspiracy alleged and acted in
furtherance of it). A person need not be involved at every level
of a conspiracy to be a participant in it. See Brandon, 17 F.3d
at 451. At any point in time in the course of the conspiracy, it
could be said of Camacho that which the indictment alleged: he
was involved in a scheme to possess cocaine with the intent of
shipping it on commercial flights into the continental United
States for sale. By supplying drugs to Rodríguez and ensuring
that those drugs successfully made their way through his packaging-
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and-distribution operation, Camacho's "aspect of the scheme [was]
necessary [and] advantageous to the success of" Rodríguez's
distribution scheme. Portela, 167 F.3d at 695. To find on this
evidence that Camacho was engaged only in a conspiracy with Arce
to supply cocaine to Rodríguez would be like saying that a center
on a football team was engaged only in a conspiracy to supply the
ball to the quarterback but was otherwise not a part of the team.
Nor did the government's case suggest any alternative
conspiracy that might have attracted jurors as a possible basis
for convicting Camacho. He does point to two snippets of testimony
that Rodríguez and Camacho met each other when they "started"
"doing business" with an individual named Tun Tun. The evidence
was obviously aimed at explaining how Camacho and Rodríguez met.
It concerned events "much" before 1999. While a juror could have
inferred that the "business" was drug smuggling, the testimony
contained no details at all about any smuggling at that time, or
about Camacho's involvement. Nor was it presented or argued as a
possible alternative conspiracy upon which jurors might rest a
verdict.
Camacho also argues that a multiple conspiracy
instruction was necessary because of evidence of a smuggling
conspiracy that predated the one alleged and that involved Sierra,
Rodríguez, and another drug trafficker; evidence of a similar,
concurrent drug-trafficking conspiracy in which another drug
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trafficker used Rodríguez's same smuggling method and facilities
to ship cocaine to the mainland United States; and the government's
references to other drug traffickers separately working to supply
Rodríguez with cocaine for his smuggling operation. But Camacho
does not argue, nor does the record show, that the government's
evidence purported or even attempted to show that Camacho was a
participant in any of these other conspiracies. Simply put, the
government did not adduce evidence tending to show that Camacho
was involved in any conspiracy but the one alleged in the
indictment.
Adding belt to suspenders, we note that the district
court told the jury that it needed to find beyond a reasonable
doubt "that the agreement specified in the Indictment, and not
some other agreement or agreements, existed between at least two
people . . . to possess with intent to distribute cocaine." We
have found virtually identical instructions sufficient in similar
cases in which a defendant challenged a district court's refusal
to give a multiple conspiracy instruction. See United States v.
Niemi, 579 F.3d 123, 126–27 (1st Cir. 2009); United States v.
Balthazard, 360 F.3d 309, 315–16 (1st Cir. 2004). And while more
might be said on the matter by a judge in a case posing a greater
risk of confusion, see, e.g., United States v. Trainor, 477 F.3d
24, 34 & n.20 (1st Cir. 2007), this was not such a case.
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The foregoing discussion also removes the heart from
Camacho's insufficiency argument, which rests on the assertion
that there was no evidence of the single conspiracy charged. Here,
the indictment, the evidence, the instructions, and the verdict
all aligned: at Rodríguez's request, Camacho secured a supply for
the smuggling pipeline and otherwise knowingly assisted in using
the pipeline to convert cocaine into dollars by shipping it from
Puerto Rico for sale in the mainland United States.
B. Hearsay
Camacho's hearsay argument trains on the trial court's
admission of the testimony by Torres and Sierra relating what
Rodríguez told them about Camacho's role in the conspiracy.
Camacho's principal argument challenging the admission of that
testimony relies on his claim that he was not a member of
Rodríguez's conspiracy, thus Rodríguez's out-of-court statements
were not admissible against him. This argument fails in the wake
of our determination that the evidence amply supported a finding
that the two were in the conspiracy together.
That leaves Camacho with a second, more technical
argument. He points out that when affirming a tentative decision
to admit the challenged testimony subject to proof of the
conspiracy, and in listing the names of the conspirators, the
district court neglected to mention the undisputed leader,
Rodríguez, by name. Having read the district court's comments, we
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think it fairly plain that the court was including the leader of
the conspiracy even though the court did not mention him by name.
Guided by the initial objections, none of which challenged
Rodríguez's role as a leader of the conspiracy, the court appears
to have been concerned not with listing every person who, by a
preponderance of the evidence, appeared to be a member of the
conspiracy, but rather, with listing the testifying witnesses
capable of relaying the statements of their named-defendant
coconspirators. In any event (and likely because Rodríguez's
inclusion was obvious), Camacho did not object or in any way point
out the exclusion when it was clear that the court would have
readily confirmed our reading of its statement if asked. The
objection is therefore forfeited (if not waived) and our foregoing
discussion of the conspiracy evidence negates any possibility of
finding plain error.
C. Jury Contamination
Camacho trains his final two arguments on the district
court's handling of two procedural issues separate and distinct
from the issues of proof discussed above.
A week into Camacho's trial, Juror Number 23 advised the
U.S. Marshal assigned to the jury that Camacho's stepson had
approached her at her place of business. The Marshal informed the
court, which conducted voir dire of the juror in the presence of
the parties and outside the presence of the other jurors.
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Questioning revealed that Camacho's stepson had approached Juror
Number 23 to tell her that the case against Camacho was
"fabricated" and Camacho was "a good person." Juror Number 23
also indicated that she had not spoken to any other jurors about
the incident. The government argued for Juror Number 23's
dismissal; Camacho and his codefendants argued against it. The
district court sided with the government, excusing Juror
Number 23--in the presence of the rest of the jury--because of the
"situation" in which she had been "involved" and advising her to
"not contact any of the jurors about this case or what happened or
anything having to do with this case." Juror Number 23 agreed and
departed. No party lodged any objection to the court's
instructions to Juror Number 23.
A few weeks later, a second, unrelated incident occurred
involving prosecution witness Juan Delgado-Biaggi ("Delgado"), a
former American Airlines crew chief who had participated in the
drug smuggling operation. Delgado advised a court security officer
that he recognized Juror Number 60. The officer informed the court
and a recess was called. After questioning Delgado outside the
presence of the jury, the court questioned Juror Number 60 outside
the presence of the other jurors (and Delgado). Juror Number 60
told the court that he had seen Delgado working as an American
Airlines employee. He also informed the court that he had
mentioned as much to another juror, Juror Number 8, during
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Delgado's testimony. Juror Number 60 told the court that he had
not made any other comments to any other members of the jury.
Shortly thereafter, the court questioned Juror Number 8.
Juror Number 8 stated that she did not know whether or not Juror
Number 60 said anything to her about Delgado, explaining, "I know
I heard that he told me that one of them he kind of seen him--
like, he recognizes as he saw him, but he didn't make it for sure.
He didn't say for sure, as far as I know." She said that she
"didn't talk to anybody about it" and that it would "[n]ot at all"
affect her impartiality. The court denied the defendants' request
for complete voir dire of the entire jury and denied the
defendants' subsequent motion for a mistrial. The court then
excused Juror Number 60 and instructed him to have no further
contact with the other jurors. It did not excuse Juror Number 8,
but it did instruct her to refrain from discussing the incident.
On appeal, Camacho argues that the district court abused
its discretion when it refused to conduct full voir dire to ensure
that no other jurors were affected by either incident.2 As to the
2Camacho appears also to argue that by obliquely referring
to Juror Number 23's "situation" in the presence of the other
jurors, the district court created some measure of mistrust or
bias against the defendants. Camacho did not raise this issue
below, so we review for plain error. See United States v. DeLeon,
187 F.3d 60, 67 (1st Cir. 1999). We do not see how the court's
vague, euphemistic reference to Juror Number 23's run-in with
Camacho's stepson could have engendered in the minds of the
remaining jurors anything more than curiosity. The district court
did not plainly err.
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first incident (involving Juror Number 23), we find that Camacho
has waived any argument challenging the trial court's failure to
question the entire jury. When the government sought Juror
Number 23's removal because of her contact with a person friendly
to the defense, Camacho objected, arguing that the juror testified
that she could remain impartial and did not feel threatened.
Having affirmatively made such an argument below, Camacho cannot
now argue on appeal that it was plain error for the court not to
investigate further whether other jurors may have been
contaminated by Juror Number 23 to Camacho's prejudice. See United
States v. Gaffney-Kessell, 772 F.3d 97, 100 (1st Cir. 2014)
(observing that waiver occurs where a party's actions "ring not of
oversight, inadvertence, or neglect in asserting a potential
right, but rather of a deliberate course of conduct" (citation
omitted)).
As to the second incident, Camacho joined his
codefendants in arguing for full voir dire and objecting to the
court's decision to retain Juror Number 8, so we review the court's
decision for abuse of discretion. See United States v. Morosco,
822 F.3d 1, 13 (1st Cir. 2016). In response to a nonfrivolous
claim that a jury might be biased or contaminated, a district court
is required to inquire into whether contamination occurred and, if
so, whether such contamination was prejudicial. See United States
v. Zimny, 846 F.3d 458, 464 (1st Cir. 2017); United States v.
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Bristol-Mártir, 570 F.3d 29, 42 (1st Cir. 2009). "[T]he trial
court has wide discretion to fashion an appropriate procedure for
assessing whether the jury has been exposed to substantively
damaging information, and if so, whether cognizable prejudice is
an inevitable and ineradicable concomitant of that exposure."
United States v. Bradshaw, 281 F.3d 278, 290 (1st Cir. 2002). We
will defer to a trial court's finding that the jury was not
contaminated "[s]o long as the district judge erects, and employs,
a suitable framework for investigating the allegation and gauging
its effects, and thereafter spells out his findings with adequate
specificity to permit informed appellate review." United States
v. Boylan, 898 F.2d 230, 258 (1st Cir. 1990).
Camacho argues that the district court abused its
discretion because it did not do enough to ascertain whether Juror
Number 60's recognition of a witness and the juror's act of
disclosing such recognition to one of his fellow jurors led to
contamination. As an initial matter, we find the claim of bias or
contamination tenuous at best. After all, the witness's employment
was not a matter of dispute, and Juror Number 60 merely reported
that he had seen the witness before and knew the witness worked
for American Airlines. While the cautious judge with an available
alternate did not abuse his discretion in excusing Juror Number 60,
that decision did not turn Juror Number 60 into a Typhoid Mary of
bias warranting any extraordinary effort to root out all
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contamination. In any event, the district court took adequate
steps to ensure that Juror Number 60's comments to Juror Number 8
had no effect on Juror Number 8's ability to decide the case
impartially and that those comments were not shared with any other
members of the jury. On this record, the district court was
entitled to deem the jurors' explanations credible. We, in turn,
have no reason not to believe that both jurors followed the court's
instructions. See United States v. Pagán-Ferrer, 736 F.3d 573,
587–88 (1st Cir. 2013); see also Correia v. Fitzgerald, 354 F.3d
47, 52 (1st Cir. 2003) ("Assuming that venirepersons pass through
this screen [of voir dire], the trial court may operate on the
presumption that the chosen jurors will obey the judge's
instructions to put extraneous matters aside and decide each case
on its merits."). The district court did not abuse its discretion.
D. Testimony Read-Back
Camacho's final challenge concerns the district court's
handling of the jury's request to hear certain testimony read back
after the jury began deliberations. During deliberations, the
jury sent a note to the court asking to hear Torres's testimony
again. The parties agreed that the court would read back Torres's
entire testimony, including both direct and cross examination.
The jury returned to the courtroom and the courtroom deputy read
Torres's direct examination, including a portion of the
examination in which Torres explained that he had traveled with
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Camacho from New Jersey to Puerto Rico. When the court finished
reading Torres's direct testimony, the jury sent a note to the
court stating: "[W]e do not need to hear the contra-interrogatory.
Thank you for your support. Respectfully." The court without
objection polled the jury, and every one of the jurors confirmed
that they did not want to hear cross-examination again. The court
thus allowed the jury to resume deliberations without hearing
Torres's cross-examination anew. The court shortly thereafter
admonished the jury not to place additional weight on Torres's
direct testimony just because they did not rehear the cross.
Camacho argues on appeal that the court committed
reversible error by reading back Torres's direct testimony without
reading back his testimony on cross-examination. Camacho contends
that the court's choice to permit the jury to return to the jury
room without rehearing Torres's complete testimony kept the jury
from hearing Torres state that, contrary to his direct testimony
that he and Camacho returned to Puerto Rico from a trip to New
Jersey they took together, he in fact flew back from Philadelphia
while Camacho flew back from New Jersey. As Camacho sees it,
Torres effectively recanted his direct testimony on cross. Camacho
argues that Torres's contradictory testimony undermined the
government's proof and demonstrated Torres's lack of credibility.
According to Camacho, allowing Torres's direct testimony to be
heard without his cross-examination functionally rehabilitated
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Torres as a witness and reasserted his faulty testimony. Camacho
did not object at the time this alleged error occurred, so we
review for plain error. See United States v. Flores-Rivera, 787
F.3d 1, 30 (1st Cir. 2015).
The district court did not plainly err. For one thing,
"our circuit has yet to establish any bright-line rules on read-
back procedures." Id. The district court thus could not have
plainly erred because a plain error is one that is clear and
obvious, and "an error will not be clear or obvious where the
challenged issue of law is unsettled." United States v. Goodhue,
486 F.3d 52, 57 (1st Cir. 2007). We need keep in mind, too, a
jury's practical ability to decide what evidence to focus on during
its deliberations. Jurors might discuss part of a witness's
testimony, or part of a document. One simply does not normally
know when this happens. The fact that in this instance we happen
to know that the jury was interested in rehearing only Torres's
direct testimony provides no reason to force-feed the jury a read-
back that it expressly deemed unnecessary. In short, the court
likely made no error, much less plain error, in declining to
require the jury during deliberations to rehear testimony that it
specifically stated it had no need to rehear.
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III. Conclusion
Finding the evidence sufficient to support the jury's
verdict and observing no other reversible errors in the record
below, we affirm.
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