United States v. Navedo-Ramirez , 781 F.3d 563 ( 2015 )

United States Court of Appeals
For the First Circuit
No. 12-2490
UNITED STATES OF AMERICA,
Appellee,
v.
YAMIL NAVEDO-RAMIREZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Lynch, Chief Judge,
Howard and Kayatta, Circuit Judges.
Irma R. Valldejuli for appellant.
Monique T. Abrishami, with whom Rosa Emilia Rodríguez-Vélez,
United States Attorney, Nelson Pérez-Sosa, Assistant United States
Attorney, and Francisco A. Besosa-Martínez, Assistant United States
Attorney, were on brief, for appellee.
March 30, 2015
LYNCH, Chief Judge. This case concerns the jury's
rejection of a duress defense after the defendant took the stand.
Defendant Yamil Navedo-Ramirez, an 18-year veteran of the Puerto
Rico Police Department (PRPD), provided armed protection at a sham
drug transaction orchestrated by the FBI as part of a sting
operation designed to identify corrupt police officers in Puerto
Rico. She was 37 years old at the time, was divorced, and had two
sons, aged 20 and 14. She was convicted of aiding and abetting an
attempt to possess with intent to distribute five kilograms or more
of cocaine and possession of a firearm in furtherance of a drug
trafficking crime and sentenced to 181 months imprisonment. The
sting operation, "Operation Guard Shack," netted a number of
corrupt police officers. See, e.g., United States v. González-
Pérez, 778 F.3d 3 (1st Cir. 2015); United States v. Diaz-Castro,
752 F.3d 101 (1st Cir. 2014); United States v. Delgado-Marrero, 744
F.3d 167 (1st Cir. 2014); United States v. Díaz-Maldonado, 727 F.3d
130 (1st Cir. 2013).
Navedo-Ramirez appeals, arguing that the district court
committed various evidentiary errors. She also argues that the
court should have granted her a downward variance in sentencing,
alleging, incorrectly, that the government engaged in sentencing
factor manipulation. We affirm her conviction and sentence.
I.
In 2008, the FBI began Operation Guard Shack, aimed at
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combating corruption in the PRPD. The FBI recruited PRPD officers
to work as confidential informants, and the informants invited PRPD
officers whom they suspected of corruption to provide armed
protection at sham drug transactions staged by the FBI. Diaz-
Castro, 752 F.3d at 104. The informants often encouraged the
officers to recruit other officers into the scheme. See, e.g., id.
at 104-05; Díaz-Maldonado, 727 F.3d at 134-35.
On April 9, 2010, Wendell Rivera-Ruperto, a former
romantic partner of Navedo-Ramirez, provided security services for
one of the sham drug transactions at an apartment complex in the
Isla Verde sector of San Juan, Puerto Rico. Rivera-Ruperto was
informed that if he wanted to continue providing security for the
drug deals, he would need to recruit an additional police officer
to participate. He stated that his wife was a police officer and
could accompany him to the next transaction. Later events showed
that Rivera-Ruperto, who was unmarried, was referring to Navedo-
Ramirez, his ex-girlfriend, who did come with him to the next
transaction.
Five days later, on April 14, 2010, Rivera-Ruperto and
Navedo-Ramirez arrived at the supposed drug transaction at the
apartment complex. Both were armed. According to a videotape of
the transaction, which was played for the jury, and to the
testimony of one of the undercover agents who participated in the
transaction, Navedo-Ramirez chatted amicably and laughed with the
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agents, observed the entirety of the transaction, and escorted the
"buyer" of the sham drugs to the door after it was completed. She
showed no reluctance to be involved. The undercover officers paid
her $2,000 for her services. The agent testified that, after he
paid Navedo-Ramirez, he told her that he "like[d] the smell . . .
of cocaine and money together," and she laughed. She never tried to
report what happened.
Navedo-Ramirez was arrested on September 21, 2010, for
her involvement in the April 14, 2010, transaction and charged with
(1) conspiracy to possess with intent to distribute over five
kilograms of cocaine, see 21 U.S.C. §§ 841(a), 846; (2) aiding and
abetting an attempt to possess with intent to distribute over five
kilograms of cocaine, see 21 U.S.C. §§ 841(a), 846; and (3)
possession of a firearm in furtherance of a drug crime, see 18
U.S.C. § 924(c).
At her May 2012 trial, Navedo-Ramirez took the stand in
her own defense. She testified that she had a long history of
suffering from domestic abuse by various men, including most
recently at the hands of Rivera-Ruperto, with whom she did not
live, but had dated. She stated that her relationship with Rivera-
Ruperto lasted approximately two months, from August to October
2009. Their relationship was initially amicable, but in mid-
October 2009, Rivera-Ruperto became physically and emotionally
abusive, and Navedo-Ramirez broke off the relationship shortly
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afterward. In the aftermath of the breakup, Navedo-Ramirez
testified, Rivera-Ruperto continued to abuse her, sent her
threatening pictures, and threatened to have her and her younger
son killed if she insisted on ending the relationship or told
anyone about his conduct. In particular, she said, in November
2009, he forced her to drink alcohol and raped her; he later
brought a hitman to her house, introduced the hitman to her son,
and told the hitman her son's name and that he was "the reason []
for which she lives." Navedo-Ramirez never reported any of this to
the police.
Navedo-Ramirez testified that in April 2010, Rivera-
Ruperto called her and "insist[ed]" that she accompany him to his
sister's house. After initially refusing, she agreed to meet
Rivera-Ruperto on April 14. Instead of going to his sister's
house, he drove her to the drug transaction. Navedo-Ramirez
maintained that she did not know that Rivera-Ruperto was leading
her to a drug deal until she arrived at the apartment and saw a
duffel bag and several kilos of cocaine. Navedo-Ramirez admitted
that she was present at the drug transaction and "[went] along with
the game," but she stated that she did so only because she feared
for her and her son's lives.
During closing arguments, defense counsel argued that
Rivera-Ruperto had forced Navedo-Ramirez to participate in the drug
transaction and that Navedo-Ramirez lacked the requisite intent to
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be convicted of the crimes charged. The jury acquitted Navedo-
Ramirez on the conspiracy charge but found her guilty on the
charges of aiding and abetting an attempt to possess with intent to
distribute five kilograms or more of cocaine and possession of a
firearm in relation to a drug trafficking crime.
On November 16, 2012, the district court sentenced
Navedo-Ramirez to 121 months imprisonment as to the drug count and
60 months as to the firearm count, to run consecutively. This
appeal followed.
II.
Navedo-Ramirez argues that the district court erred in
refusing to admit into evidence (1) the testimony of Dr. Carol
Romey, Navedo-Ramirez's proffered expert on Battered Woman Syndrome
(BWS), (2) Rivera-Ruperto's prior domestic violence conviction, and
(3) Navedo-Ramirez's PRPD performance evaluations. We review these
evidentiary rulings for abuse of discretion. Delgado-Marrero, 744
F.3d at 179 (citing United States v. Pelletier, 666 F.3d 1, 5 (1st
Cir. 2011)); United States v. Giambro, 544 F.3d 26, 32 (1st Cir.
2008).
A. Exclusion of BWS Expert
Navedo-Ramirez sought to introduce the testimony of Dr.
Romey, an expert on BWS, who would have testified about the general
nature of the syndrome. More specifically, defense counsel sought
to have Dr. Romey testify about the impact of domestic abuse on
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women generally in order to provide context for the defendant's
testimony and possibly explain the potential impact that the
history of violence Navedo-Ramirez had experienced may have had on
her. Navedo-Ramirez maintains that the testimony was relevant to
whether she possessed the requisite intent to commit the crimes
charged and to whether she acted under duress. Before defendant
testified, the district court agreed that, in general, testimony
about the long-term effects of being battered or domestic violence
in general could well be relevant in a case where a defendant
claimed that she engaged in criminal activity only because she was
forced to by an abusive domestic partner. United States v.
Ramírez, No. 10-344(PG), 2012 WL 733973, at *3 (D.P.R. Mar. 6,
2012); see generally United States v. Marenghi, 893 F. Supp. 85,
92-97 (D. Me. 1995) (holding that expert testimony on BWS may be
admitted to support a duress defense).
After defendant testified, her counsel offered the expert
testimony. The court excluded Dr. Romey's testimony, finding that
it would not be helpful to the jury because Navedo-Ramirez's
testimony had adequately conveyed her contention that she
participated in the drug transaction because she feared for her
son's life and her own:
Based on the history that's before the jury as
to her treatment by her first husband, her
third husband and by [Rivera-Ruperto] . . . .
[s]he was fearful of him, the photographs,
. . . the pulling of the hair, the punch,
whatever, when he said you are going to go
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with me, she felt fear and she went with him.
That is why she went. You don't need to have
a psychologist come in and say, well, a woman
who has had all these experiences is going to
act not as a reasonable person would act under
those situations. She would act based on that
fear that she has ingrown into her because of
her previous experiences. Therefore, she was
there . . . because . . . . [s]he was afraid
for herself and her son and that justifies her
actions. You don't need a psychologist for
that. . . .
. . . .
She was fully articulate on what she
felt, . . . what she thought during . . . .
She just went there because . . . . [s]he was
afraid for her son. If the jury believes that
then they would have to acquit, I
think . . . . At this time it's a question of
credibility. . . .
. . . .
She has testified as to the duress. If
you believe that all that she says put her in
such a state of mind that she was completely
under duress and acted out of duress, we don't
need an expert . . . .
Federal Rule of Evidence 702 provides that "[a] witness
who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or
otherwise if," among other requirements, "the expert's scientific,
technical, or other specialized knowledge will help the trier of
fact to understand the evidence or to determine a fact in issue."
If a layperson is capable of understanding an issue without the aid
of an expert, a district court may properly decline to admit expert
testimony on that issue on the ground that it would not be helpful
to the jury. See United States v. Salimonu, 182 F.3d 63, 74 (1st
Cir. 1999).
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The proposed expert testimony did not fit this case
snugly. This is not a case in which a battered spouse tries to
explain why she continues to live with the batterer. Navedo-
Ramirez dated Rivera-Ruperto for two months, and then broke off the
relationship. Furthermore, the threats to which Navedo-Ramirez
testified were such that any person, unaided by expert testimony,
could readily appreciate their impact. To be blunt, any person
might well be placed under much duress if her child's life were
threatened by a supposed hit man, or if she were raped while
involuntarily intoxicated. This is not to say that all of the
proposed expert testimony was inadmissible. Instead, it is to say
only that we find no abuse of discretion in the district court's
ruling that the jury would not be aided by expert testimony in
determining whether Navedo-Ramirez acted under duress and whether
she had the requisite mens rea for the crimes charged. The real
issue in this case was whether the jury accepted her testimony as
credible. An expert would not be helpful on that. The
government's contention was not that abuse could not produce
duress, but that she was not credible in attributing her presence
and commission of the crime to duress. The court reasonably
concluded that testimony from an expert on BWS would have been
cumulative of Navedo-Ramirez's own testimony and, thus, unhelpful
to the jury. Cf. United States v. West, 670 F.2d 675, 682 (7th
Cir. 1982) (affirming district court's exclusion of expert
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testimony regarding defendant's limited intelligence, intended to
suggest that defendant did not realize that a gift he had accepted
was a bribe, because defendant's "limited intelligence was clearly
revealed to the jury during [his] testimony" and accordingly "the
jury was able to determine whether [defendant] realized that he was
accepting a bribe without the assistance of expert testimony"),
overruled on other grounds by United States v. Green, 258 F.3d 683,
690-92 (7th Cir. 2001); United States v. Byers, 730 F.2d 568, 570-
71 (9th Cir. 1984) (noting that the district court has "wide
latitude in admitting or excluding psychiatric evidence directed to
the capacity of a defendant to entertain a specific intent or
directed to the credibility of a witness" (citations and internal
quotation marks omitted)).
B. Rivera-Ruperto's Prior Domestic Violence Conviction
Navedo-Ramirez also sought to introduce a prior domestic
violence conviction of Rivera-Ruperto. The district court excluded
it as inadmissible propensity evidence. See Fed. R. Evid.
404(a)(1) ("Evidence of a person's character or character trait is
not admissible to prove that on a particular occasion the person
acted in accordance with the character or trait."). Navedo-Ramirez
contends that this was error, arguing that it was relevant to her
duress defense.
"A duress defense requires proof that the defendant
committed a crime as a result of: '(1) an immediate threat of
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serious bodily injury or death, (2) a well-grounded belief that the
threat will be carried out, and (3) no reasonable opportunity to
escape or otherwise to frustrate the threat.'" González-Pérez, 778
F.3d at 13 (quoting United States v. Arthurs, 73 F.3d 444, 448 (1st
Cir. 1996)). Navedo-Ramirez says that Rivera-Ruperto's domestic
violence conviction supported her contention that she had a "well-
grounded belief" that his threats against her and her son would be
carried out. This argument would have some force, were there any
evidence suggesting that she knew about the conviction. Cf. United
States v. Willis, 38 F.3d 170, 177 n.8 (5th Cir. 1994) (noting that
"the objective situation in which the defendant was allegedly
subjected to duress" is relevant to the defense of duress and that
"evidence concerning the defendant's past history with the person
making the unlawful threat" can help show that the defendant's fear
was well-grounded). But there is no such evidence or even an offer
of proof in the record. Defense counsel admitted as much at oral
argument. Without evidence establishing that Navedo-Ramirez knew
about Rivera-Ruperto's conviction, the district court did not err
in excluding the conviction. See United States v. Garcia, 729 F.3d
1171, 1178-79 (9th Cir. 2013) (noting that prior violent acts by a
purported aggressor could not have affected the defendant's state
of mind if the defendant did not know about the violent acts).
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C. Navedo-Ramirez's PRPD Performance Evaluations
We likewise find no abuse of discretion as to the
district court's exclusion of Navedo-Ramirez's PRPD performance
evaluations. It is true that Rule 404(a) allows a criminal
defendant to offer evidence of a "pertinent" character trait. See
Fed. R. Evid. 404(a)(2)(A). But the district court permissibly
concluded that the character trait that the evaluations purport to
show -- general competence at her job as a police officer -- is not
"pertinent" to the drug and gun possession crimes of which Navedo-
Ramirez was convicted. See United States v. Washington, 106 F.3d
983, 990, 999 (D.C. Cir. 1997) (affirming district court's refusal
to admit under Rule 404(a) commendations defendant had received
while on the police force, reasoning that defendant's "'dedication,
aggressiveness and assertiveness' in investigating drug dealing and
carjacking [was not] 'pertinent' to . . . his supposed lack of
predisposition to" provide security for drug transactions); cf.
United States v. Nazzaro, 889 F.2d 1158, 1168 (1st Cir. 1989)
(finding that commendations received by defendant in military
service and as a police officer were not pertinent to defendant's
perjury and mail fraud charges).
III.
Finally, we address Navedo-Ramirez's contention that the
district court erred in finding no sentencing factor manipulation
and so erred in sentencing her by failing to grant a downward
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variance. Sentencing factor manipulation occurred, she maintains,
because the government "chose the actors (undercover police
officers to act as seller and buyer), the place, the amount and
kind of drug that w[ould] be sold, the amount of money to be paid
for the security job and the way that the corrupt police officers
were to be recruited." She notes that the amount of drugs chosen
by the government was sufficient to trigger the statutory minimum
sentence of ten years imprisonment, plus a consecutive five-year
sentence for possession of a firearm.
"Sentencing factor manipulation occurs where government
agents have improperly enlarged the scope or scale of [a] crime."
United States v. Lucena-Rivera, 750 F.3d 43, 55 (1st Cir. 2014)
(alteration in original) (citations and internal quotation marks
omitted). Sting operations are permissible, though they by
definition involve manipulation. Id. Accordingly, "'relief for
sentencing factor manipulation is reserved for only the extreme and
unusual case,'" id. (quoting United States v. Fontes, 415 F.3d
174, 180 (1st Cir. 2005)) (internal quotation marks omitted), such
as a situation "involving 'outrageous or intolerable pressure' [by
the government] or 'illegitimate motive on the part of the
agents,'" United States v. Richardson, 515 F.3d 74, 86-87 n.8 (1st
Cir. 2008) (quoting United States v. Montoya, 62 F.3d 1, 4 (1st
Cir. 1995)). A district court's finding as to whether improper
manipulation took place is "ordinarily a factbound determination"
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that we review for clear error. Lucena-Rivera, 750 F.3d at 55
(quoting United States v. Gibbens, 25 F.3d 28, 30 (1st Cir. 1994)).
The district court did not clearly err in finding that
this was not an "extreme and unusual case." The main focus of a
sentencing factor manipulation claim is impropriety on the part of
the government, United States v. DePierre, 599 F.3d 25, 29 (1st
Cir. 2010), and there is no compelling evidence of impropriety
here, much less the "outrageous or intolerable pressure" required
for a finding of manipulation, Montoya, 62 F.3d at 4.1 In short,
1
Navedo-Ramirez has not explicitly argued that a finding
of "vicarious" or "derivative" sentencing factor manipulation was
required here on a theory that it was Rivera-Ruperto who improperly
pressured her into participating in the drug deal. That argument
would not alter the analysis, because Rivera-Ruperto's conduct is
not attributable to the government for purposes of a sentencing
factor manipulation determination. In the closely related area of
entrapment, we have noted that the conduct of a "middleman" will be
attributable to the government only if
(1) a government agent specifically targeted
the defendant in order to induce him to commit
illegal conduct; (2) the agent acted through
the middleman after other government attempts
at inducing the defendant had failed; (3) the
government agent requested, encouraged, or
instructed the middleman to employ a specified
inducement, which could be found improper,
against the targeted defendant; (4) the
agent's actions led the middleman to do what
the government sought, even if the government
did not use improper means to influence the
middleman; and (5) as a result of the
middleman's inducement, the targeted defendant
in fact engaged in the illegal conduct.
United States v. Luisi, 482 F.3d 43, 55 (1st Cir. 2007). These
conditions are not satisfied here.
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"[t]he facts in this case do not show anything beyond the level of
manipulation inherent in virtually any sting operation -- and that
is not enough to warrant a downward departure." United States v.
Sánchez-Berríos, 424 F.3d 65, 79 (1st Cir. 2005).2
IV.
For these reasons, we affirm Navedo-Ramirez's conviction
and sentence.
2
Navedo-Ramirez's reply brief argues that her sentence
should be vacated because the district court found sentencing
factor manipulation with respect to a purportedly similarly-
situated codefendant, José Nieves-Velez. We note that Nieves-Velez
did not testify and was not a police officer. See United States v.
Nieves-Velez, 28 F. Supp. 3d 131, 134-35 (D.P.R. 2014). The
propriety of the court's finding in Nieves-Velez's case is not
before us, and it has no bearing on the issue of whether the court
clearly erred in finding no sentencing factor manipulation in this
case.
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