United States v. Rodriguez-Rodriguez , 741 F.3d 179 ( 2013 )

United States Court of Appeals
For the First Circuit
Nos. 10-1076
10-1099
10-1115
10-1875
10-2466
UNITED STATES OF AMERICA,
Appellee,
v.
JOSÉ DAVID ACOSTA-COLÓN, a/k/a David;
JORGE FOURNIER-OLAVARRÍA, a/k/a Mesón;
FERNANDO L. CASTILLO-MORALES, a/k/a Yaguita;
ALEXIS RODRÍGUEZ-RODRÍGUEZ, a/k/a Sandro; and
DANIEL GUZMÁN-CORREA, a/k/a Danny Pincho,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Howard, Selya, and Thompson,
Circuit Judges.
H. Manuel Hernández for José David Acosta-Colón.
Luis Rafael Rivera, with whom Luis Rafael Rivera Law Offices
was on brief, for Jorge Fournier-Olavarría.
Carlos M. Calderón Garnier for Fernando L. Castillo-Morales.
Lydia Lizarribar-Masini for Alexis Rodríguez-Rodríguez.
Linda Backiel for Daniel Guzmán-Correa.
Myriam Yvette Fernández-González, Assistant United States
Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States
Attorney, Nelson Pérez-Sosa, Assistant United States Attorney,
Chief, Appellate Division, and Juan Carlos Reyes-Ramos, Assistant
United States Attorney, were on brief, for the United States.
December 18, 2013
THOMPSON, Circuit Judge.
Overview
Today we deal with the fallout from a deadly drug
conspiracy in Puerto Rico involving a small army of criminals
affiliated with "the Combo of Dr. Pila" (from now on, "the Combo"),
a vicious gang named after a local housing project where members
ran one of their many drug points. The five defendants whose joint
trial led to these consolidated appeals are Acosta, Fournier,
Castillo, Rodríguez, and Guzmán (their full names and aliases
appear in our case caption).
A federal grand jury indicted each of them for conspiring
to possess and distribute illegal drugs within 1,000 feet of a
public-housing facility. See 21 U.S.C. §§ 841, 846, and 860. The
grand jury also indicted Fournier, Rodríguez, and Guzmán — but not
Acosta and Castillo — for aiding and abetting the use or carrying
of a firearm "during and in relation to" a drug crime or the
possession of a firearm "in furtherance" of that crime. See 18
U.S.C. §§ 2 and 924(c)(1)(A). As shorthand, we shall refer to
these counts as the drug-conspiracy count and the gun count.
Covering the period from January 2003 to July 2007, the
indictment tagged Rodríguez and Guzmán as "leaders" in the Combo
conspiracy, Acosta and Castillo as "sellers," and Fournier as a
"facilitator." These five were not the only ones indicted. Far
from it. The grand jury also indicted 90 others on similar
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charges. But some of them copped pleas and agreed to testify for
the government at our defendants' trial.
After hearing what these and other witnesses had to say,
the jury filled out defendant-specific verdict forms, finding,
essentially, each defendant guilty as charged and picking drug-
weight ranges for the drugs each defendant conspired to possess and
distribute — all while using a beyond-a-reasonable-doubt standard.
The only slight wrinkle on the conviction front is that the jury
found Acosta — and Acosta only — not guilty of participating in
drug-related conspiracy activities within 1,000 feet of a public-
housing project. Later, the district judge imposed the following
prison sentences: Acosta, 151 months on the drug-conspiracy count;
Fournier, 78 months on the drug-conspiracy count plus 60
consecutive months on the gun count; Castillo, 120 months on the
drug-conspiracy count; Rodríguez, 240 months on the drug-conspiracy
count and 60 consecutive months on the gun count; and Guzmán, life
on the drug-conspiracy count plus 60 consecutive months on the gun
count.
Their appeals raise a staggering number of issues for
review, though not all require our extended attention. To make our
opinion manageable, we sort the issues out person by person,
highlighting only those facts needed to put things in perspective.
And for anyone wishing to know our ending up front, we note that
when all is said and done we affirm across the board.
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Acosta
(1)
Public Trial
Acosta starts things off by accusing the district judge
of closing the courtroom to "the public" during the jury-selection
process. The judge's action, he insists, denied him his Sixth
Amendment right to a public trial. See U.S. Const. amend. VI. The
backstory, at least so far as the record discloses, may be swiftly
summarized.
Just before picking the jury, the district judge called
counsel to sidebar. "I've been informed by my [court-security
officer]," the judge said, "that the marshals informed him that
three buses" that looked like "school buses" had "arrived here with
persons who have T-shirts saying, 'Danny, we support you and we
back you.'" "Danny" is defendant Guzmán. Anyway, "I'm not going
to allow that," the judge added, "and none of those persons are
going to walk into the courtroom. They are going to be sent
back[,] and they are going to be —". Guzmán's counsel interrupted,
saying, "I don't think that's appropriate. I had no idea. Send
them back." At the risk of stating the obvious, context makes
clear that counsel was calling the bus-riders' actions
inappropriate, not the judge's ruling. And while the judge did not
blame the lawyers, he did stress that he would not "tolerate any
activity like that from any of the defendants." Tell "you[r]
clients" to "behave," he continued, or else "I'm going to exclude
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them from the courtroom," install "a camera next" to "the holding
cells," and let them "watch the trial from there." "Very well,"
Rodríguez's lawyer said, followed immediately by the judge's
saying, "I'm going to order the marshals to remove them from the
court."
Every criminal defendant has a Sixth-Amendment right to
a public trial — a right designed to ensure a fundamentally fair
process, since the public's very presence there helps keep judges,
prosecutors, and witnesses on their toes. See, e.g., Waller v.
Georgia, 467 U.S. 39, 46-47 (1984). But this public-trial right is
not absolute and must be balanced against other important
considerations in the administration of justice. See, e.g., id. at
45. For example, a judge may close the courtroom to all members of
the public if he detects a compelling interest that needs
protecting, considers sensible closure alternatives, ensures that
closure is no broader than required, and makes findings sufficient
to support his ruling. See, e.g., Presley v. Georgia, 558 U.S.
209, 213-14 (2010) (adding that when a defendant objects to a
closure but does not offer alternatives, the judge must think of
some on his own); Owens v. United States, 483 F.3d 48, 61-62 (1st
Cir. 2007). On the other hand, a judge may order a partial
courtroom closure — partial, because only some members of the
public are kept out — if he pinpoints a substantial interest that
needs protecting and then does the other things that we just
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listed. See, e.g., Bucci v. United States, 662 F.3d 18, 23 (1st
Cir. 2011) (citing United States v. DeLuca, 137 F.3d 24, 34 (1st
Cir. 1998)).
Acosta is having a devil of a time explaining what type
of closure happened here. First he says that the judge barred "the
public in general" during this phase of the trial, not just
Guzmán's t-shirt-wearing supporters, apparently. Backing off a
bit, then he says (emphasis ours) that at the very "least" the
judge barred "defendants' families." Later still, he says that the
judge "may" have barred his family, friends, and supporters (hardly
a take-it-to-the-bank kind of statement). And he says all this
without citing to the record.
Even pushing that failure aside, Acosta cannot overcome
this problem: The judge put the exclusion matter squarely on the
table for all the defendants' lawyers at sidebar, explaining what
he intended to do with the t-shirt wearers. Each attorney had the
chance to speak up. And attorneys for two of Acosta's codefendants
did precisely that. But not Acosta's lawyer — he said nothing,
despite the judge's placing the issue front and center and the
other lawyers' voicing their opinion on this weighty subject.
Fournier's attorney peeped no words of protest either, which is a
problem for him, as we shall shortly see. Ultimately, then, given
the particular facts of our case, we conclude that Acosta's lawyer
had to know that he had to chime in on the exclusion issue — as
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others had — or else waive any claim. So his silence constitutes
classic waiver, rather than forfeiture, which means that he cannot
challenge the judge's ruling even as plain error. See, e.g.,
United States v. Christi, 682 F.3d 138, 142 (1st Cir. 2012)
(Souter, J.) (citing, among other cases, Levine v. United States,
362 U.S. 610 (1960), which deems a courtroom-exclusion issue waived
if counsel knew about the exclusion and "saw no disregard of a
right" but now peddles the argument "as an afterthought on
appeal").
(2)
Alibi Witness
Acosta also challenges the judge's decision banning him
from calling his wife as an alibi witness at trial. Here is what
happened.
Shortly after the indictment issued, the government,
relying on Fed. R. Crim. P. 12.1, demanded that each defendant give
notice of any alibi defense that they intended to use. Rule
12.1(a) provides that a request like that "must state the time,
date, and place of the alleged offense." And the version of the
Rule in effect at the relevant time said that if the defendant
wishes to raise an alibi defense, he must — within 10 (now 14) days
— notify the government in writing of his intent to do so. And the
government's request here stated:
The defendant committed the charged offense
throughout the years 2003, 2004, 2005, 2006,
and until July 2007, during the day and night
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hours, in or within the Dr. Pila Public
Housing Project; and/or within the Ponce
Housing Public Housing Project; the José M.
Gándara Public Housing Project; the Portugues
Public Housing Project; the Los Rosales Public
Housing Project; and within the Municipalities
of Ponce and Juana Díaz, Puerto Rico.
One of Acosta's then-codefendants, José Ríos Santiago ("Ríos"), who
later pled guilty to the drug-conspiracy count, objected to the
request, claiming that it was too broad because it covered four-
plus years, every day and night. "If the government wants an alibi
response," Ríos wrote, it must list the "dates" and "time" showing
when he supposedly "was personally involved in the conspiracy
charged," and not use the entire period covered in the indictment
— then and only then, he added, will notice be "adequate" under the
Rule. Acosta neither filed his own objection nor joined Ríos's.
Eventually, the judge granted Ríos's objection, using language
indicating that the ruling applied only to him: "ORDER as to Jose
L. Rios-Santiago GRANT[ED]." The government never amended its
request. And Acosta never mentioned during pretrial that he
intended to call his wife as an alibi witness.
We fast-forward to August 25, 2009, the thirteenth day of
trial. A confidential informant named Ulises Martínez Camacho
("Martínez") testified about his encounter with Acosta at a Combo-
owned drug point — the "Coto Laurel" drug point — on July 11, 2007.
Armed with police-supplied recording equipment and following the
police's marching orders, Martínez had journeyed there to buy drugs
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and ended up handing Acosta $80 for 13 bags of crack. Acosta
grabbed the cash but never came back with the drugs. Martínez
immediately complained about what had happened to Acosta's brother,
who in turn told defendant Rodríguez (who was also there at that
time). Ticked off that "this guy" — meaning Acosta — had "done
this again," Rodríguez handled the problem by making sure that
Martínez got what he had paid for. Importantly, Martínez had
secretly caught nearly everything on audio and video tape —
everything except a shot of Acosta, which Acosta's counsel brought
out on cross-examination.
After the judge recessed for the day, Acosta's lawyer
said that he wanted to call his client's wife as an alibi witness.
She would testify that Acosta had been with her on July 11, counsel
explained, celebrating her birthday far from the Coto Laurel drug
point. But prosecutors told the judge that they had given the
defense copies of the July 11 recording way back in August 2007 —
nearly 2 years before trial. And one can hear people saying
Acosta's name — "José David" or "David" — on the recordings,
prosecutors stressed. They also said that they had given the
defense a transcript of the audio recording in October 2007. And
they noted that they had given the defense "Jencks Act" material
regarding the July 11 transaction on August 1, 2009 — 6 days before
trial started and 24 days before either Martínez's direct testimony
or Acosta's in-court attempt to spring the alibi witness on the
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prosecution. For those uninitiated in the intricacies of federal
criminal procedure, the Jencks Act entitles a criminal defendant to
the "statement" of a government witness after the witness has
testified on direct examination. See 18 U.S.C. § 3500(a).1
Acosta's counsel did not deny any of this. Instead, he
tells us, he tried to explain to the judge that, yes, prosecutors
"may have" dropped off videos and transcripts of the July 11
doings, but he did not learn that Martínez would tie Acosta to the
tape until he got the Jencks material about a week before trial.
The judge was not impressed. "You had all that information" for
such a long "time," the judge found, yet you still did not give
prosecutors the requisite notice so that they could "investigate"
the alibi theory. "I have to consider the rights of your client,"
the judge told Acosta's attorney. And "I did," the judge said,
reminding counsel too that he had ordered prosecutors to produce
all Jencks-Act statements well "before the time that the government
ha[d] to turn it over." Having concluded that the defense had
failed to comply with Rule 12.1, the judge precluded Acosta's wife
from testifying. See Fed. R. Crim. P. 12.1(e) (providing that "a
court may exclude the testimony of any undisclosed" alibi witness
if a party does not comply with the Rule's requirements).
1
The Jencks Act takes its name from Jencks v. United States,
353 U.S. 657 (1957). See United States v. Dupont, 15 F.3d 5, 7 n.2
(1st Cir. 1994) (noting that the statute "codif[ies] Jencks").
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Looking to undo the judge's ruling, Acosta protests that
he did not have to give advance notice of his alibi witness because
the prosecution had given him an inadequate Rule 12.1 request. But
even if wrong on this point, Acosta contends that the judge should
have used the power under Rule 12.1(d) to let the alibi witness
testify anyway, particularly since the exclusion robbed him of his
constitutional rights to present a meaningful defense, or so he
says.2 Neither argument works.
Take the first one. At no time before dropping the
alibi-witness bombshell midtrial did Acosta object to the
government's Rule 12.1 request — despite then-codefendant Ríos's
objection and the judge's ruling in Ríos's favor. Under these
circumstances, Acosta has waived the argument. See, e.g., United
States v. Valerio, 676 F.3d 237, 246 n.2 (1st Cir. 2012) (noting
that arguments raised for the first time on appeal are deemed
waived); United States v. Meade, 175 F.3d 215, 223-24 (1st Cir.
1999) (same). Hoping to avoid this logic, Acosta faintly intimates
a slight whisper of a suggestion that Ríos's objection preserved
the issue for all defendants. But he does not develop this
piggyback theory, so we need say no more about that. See, e.g.,
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (holding
2
Rule 12.1(d) provides that a "court may" excuse
noncompliance with the Rule "[f]or good cause" shown.
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"that issues adverted to in a perfunctory manner, unaccompanied by
some effort at developed argumentation, are deemed waived").
Explaining the problem that sabotages Acosta's second
argument — that the judge should have plied his Rule 12.1(d) power
to excuse the surprise-witness disclosure — requires a little more
work on our part. We start with some basics. A defendant
obviously has a right to offer witnesses in his defense, thanks to
the Supreme Court's reading of the Sixth Amendment.3 See Taylor,
484 U.S. at 409; see also United States v. Portela, 167 F.3d 687,
704 (1st Cir. 1999). But just as obviously, that right (like most
rights) is not unlimited and may bow to other "[c]ompeting
interests." United States v. Brown, 500 F.3d 48, 57 (1st Cir.
2007) (citing Taylor, 484 U.S. at 414-15). Among these are "the
integrity of the adversary process, the danger of unfairly skewing
the truth-determining function that lies at the epicenter of that
process, and the efficient administration of justice." Id. (citing
Taylor again). Also relevant are "the willfulness [or not] of the
violation, the relative simplicity of compliance, and whether or
not some unfair tactical advantage has been sought." United States
v. Nelson-Rodriguez, 319 F.3d 12, 36 (1st Cir. 2003) (quoting
Chappee v. Vose, 843 F.3d 25, 29 (1st Cir. 1988)). Not every
3
The Sixth Amendment does not literally give the accused the
right to present witnesses. It gives him the right "to have
compulsory process" to "obtain[]" them. See U.S. amend. VI. But
the right to compulsory process includes the right to present
witnesses. See Taylor v. Illinois, 484 U.S. 400, 409 (1988).
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factor applies in every situation, naturally. See Chappee, 843
F.3d at 29 (emphasizing that the Supreme Court has "declined to
cast a mechanical standard to govern all possible cases"). And in
the end, we give fresh review to the judge's application of this
standard, see Nelson-Rodriguez, 319 F.3d at 36, but with
"considerable deference" to his factual determinations, see United
States v. Levy-Cordero, 67 F.3d 1002, 1013 (1st Cir. 1995).
Acosta's effort to poke holes in the judge's exclusion
ruling first focuses on the willfulness factor: because, he says,
there is zero indication that counsel had acted willfully when he
disclosed the alibi witness midtrial, the judge's edict must fall.
What dooms his theory is that we have never held that the exclusion
sanction is available only when a party willfully violates Rule
12.1. See Nelson-Rodriguez, 319 F.3d at 37. Next he argues that
we must reverse given how badly he needed his wife's testimony to
rebut Martínez's and so vindicate his constitutional right to mount
an effective defense. But Acosta had more than enough time to
reveal his alibi witness before day 13 of trial, as the judge
supportably found after hearing prosecutors say how they had handed
the defense incriminating July 11 evidence (recordings,
transcripts, and reports), starting almost two years before the
trial kicked off. Add to that the lack of a credible excuse for
not complying with Rule 12.1 and the fact that allowing the
surprise witness to testify would have delayed this multidefendant
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trial (to give prosecutors a chance to investigate the alibi), and
it becomes clear that Acosta's alibi-witness argument is a no-go.
See generally Williams v. Florida, 399 U.S. 78, 81-82 (1970)
(noting that because an alibi defense is easily "fabricated," the
government's "interest in protecting itself against an eleventh-
hour defense is both obvious and legitimate," adding that
defendants must know that a criminal trial "is not . . . a poker
game in which players enjoy an absolute right always to conceal
their cards until played").
(3)
Sufficiency of the Evidence
Acosta contends that the evidence was not sufficient to
support his drug-conspiracy conviction. To convict someone of that
crime, the government must prove beyond a reasonable doubt that he
knew about and voluntarily participated in the conspiracy,
"intending to commit the underlying substantive offense" — and
proof may come from direct evidence or circumstantial evidence,
like inferences drawn "from members' 'words and actions'" and from
"'the interdependence of activities and persons involved.'" United
States v. Ortiz de Jesús, 230 F.3d 1, 5 (1st Cir. 2000) (quoting
United States v. Boylan, 898 F.2d 230, 241-42 (1st Cir. 1990)). Of
course, winning a sufficiency challenge is hard to do: Acosta must
show that after viewing the evidence and reasonable inferences in
the light most flattering to the prosecution, no rational jury
could have found him guilty beyond a reasonable doubt. See, e.g.,
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United States v. Polanco, 634 F.3d 39, 45 (1st Cir. 2011). And
though we exercise de novo review, we can neither re-weigh the
evidence nor second-guess the jury's credibility calls. Id.
Acosta pins his principal hope on convincing us that two
government witnesses who helped seal his fate were unworthy of
belief. This argument is hopeless.
The first witness is Jayson Serrano, a confidential
informant who had grown up with defendant Rodríguez. Serrano
testified that Acosta was a drug "runner" for the Combo-owned Coto
Laurel drug point: Rodríguez (the person in charge at that drug
point) would get "bundles" of drugs from his Combo colleagues and
hand them over to Acosta, who would then give them to sellers at
the Coto Laurel locale.4 Early in his direct examination Serrano
named two sellers at the Coto Laurel drug point — nicknamed "Wanda"
and "Pucho" — neither of whom were Acosta. Later, though, Serrano
did say that Acosta was a seller there as well. He knew this
because he had bought drugs from him "several" times. Serrano also
testified that he and Acosta had met with Combo leaders at
Rodríguez's house. Acosta tries to pour cold water on all this,
noting that Serrano is a convicted thief, former drug addict, and
paid government snitch who could not keep his story straight about
whether Acosta was the seller. What Acosta says may be proper
4
A bundle of heroin, Serrano explained, contains "25 little
bags of heroin," all "wrapped up in a bag."
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argument for a jury, but it is not proper argument here, given that
we must resolve all evidentiary and credibility conflicts in the
government's favor. See, e.g., Polanco, 634 F.3d at 45; United
States v. Manor, 633 F.3d 11, 14 (1st Cir. 2011).
The second witness that Acosta targets is Martínez, the
same Martínez involved in the July 11, 2007 incident discussed
above — where Acosta agreed to sell Martínez $80 worth of crack but
took off without handing over the drugs, and then defendant
Rodríguez fixed things by making sure that Martínez got his crack.
Well, Acosta says that that testimony shows only that he had preyed
on hapless drug buyers, not that he was a conspiracy member. But
his theory cannot fly, given our prosecution-friendly standard of
review — which, again, requires us to choose from among competing
inferences the one most compatible with the jury's guilty verdict.
See, e.g., Polanco, 634 F.3d at 45; Manor, 633 F.3d at 13-14. And
having done so, we believe a sensible jury could conclude that
Combo-bigwig Rodríguez helped Martínez out because Acosta was a
drug seller in the Combo conspiracy and Rodríguez did not want any
customer-relations problems on his watch. Like he did with
Serrano, Acosta also harps on Martínez's status as a professional
stoolie and former drug addict — a credibility attack that fails,
for the reason his attack on Serrano failed.
The upshot is that Acosta's insufficient-evidence
arguments misfire. So we trudge on.
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(4)
Drug Quantity
For his final salvo, Acosta attacks the judge's drug-
quantity finding. As anyone familiar with this area of the law
knows, sentence length in drug cases turns largely on the amount
and type of drugs involved. Section 841(b)(1)(A) of Title 21, for
example, lists amounts of different drugs — 1 kilogram or more of
heroin, 5 kilograms or more of cocaine, for instance — that lead to
sentences of 10 years to life ("unless death or serious bodily
injury results from the use of such substance," which leads to
sentences of 20 years to life). Acosta says, basically, that the
judge relied on conspiracy-wide amounts rather than on amounts
attributable to him personally or reasonably foreseeable by him —
a gaffe, he adds, that resulted in his getting a higher sentence.
Commendably, he concedes that he did not object on this basis below
and so must prove plain error — a famously difficult standard to
meet, requiring him to show "error, plainness, prejudice to the
defendant[,] and the threat of a miscarriage of justice." United
States v. Torres-Rosario, 658 F.3d 110, 116 (1st Cir. 2011); accord
United States v. Eisom, 585 F.3d 552, 556 (1st Cir. 2009). This is
a standard he ultimately cannot meet, it turns out.
Even a quick look at the record reveals that the jury
made individualized drug findings for each defendant beyond a
reasonable doubt: following the judge's charge, the jury checked
off lines indicating, for example, that Acosta had conspired to
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possess and distribute 1 kilogram or more of heroin, 5 kilograms or
more of cocaine, 50 grams or more of crack, and less than 100
kilograms of marijuana. In sentencing him on the drug-conspiracy
count, the judge used the jury's 1-kilogram-or-more-of-heroin
finding — a finding that triggered a statutory minimum-to-maximum
prison range of 10 years to life, see 21 U.S.C. § 841(b)(1)(A), all
without offending Alleyne v. United States, 133 S. Ct. 2151 (2013),
despite what Acosta says. Alleyne held that facts triggering
application of a "mandatory minimum sentence" generally "must be
submitted to the jury" and established "beyond a reasonable doubt."
See 133 S. Ct. at 2163.5 That is precisely what happened here.6
Working with the 2009 version of the federal sentencing
guidelines,7 the judge then pegged Acosta's base-offense level at
32 and made no adjustments, either up or down. With a criminal-
history category of III, Acosta's guidelines-recommended sentencing
range was 151 to 188 months of imprisonment, the judge concluded.
5
We say "generally" because the high court explicitly
declined to revisit "the narrow exception to this general rule for
the fact of a prior conviction." Id. at 2160 n.1.
6
Alleyne applies to cases like this one that were on direct
appeal when it was released. See, e.g., Schriro v. Summerlin, 542
U.S. 348, 351 (2004).
7
A judge normally applies the guidelines in vogue at the time
of sentencing unless doing so "would violate the ex post facto
clause," in which case the judge must use the version "in effect on
the date" the defendant committed the offense. See U.S.S.G.
§ 1B1.11; see also Peugh v. United States, 133 S. Ct. 2072, 2078-88
(2013) (fleshing out the ex post facto analysis).
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And after considering relevant sentencing factors, see 18 U.S.C.
§ 3553(a), the judge selected 151 months — the very bottom of the
applicable guidelines range and obviously well within the statutory
range of 10 years to life.
Given this set of circumstances, the bottom line is very
simple: the jury's individualized drug-quantity findings still
Acosta's cry that no individualized findings drove this part of the
judge's sentencing decision. Ever persistent, Acosta suggests that
the evidence before the jury concerning what amounts he had handled
or were reasonably foreseeable by him was "iffy" at best, an
argument that certainly sounds like a sufficiency challenge. But
the already high bar for plain error becomes even higher when
dealing with an unpreserved sufficiency-of-the-evidence claim
(which this is), requiring a criminal defendant to show a "clear
and gross injustice" for reversal. United States v. Pratt, 568
F.3d 11, 18 (1st Cir. 2009). And significantly, Acosta makes zero
effort to explain how — after taking the evidence and permissible
inferences in a prosecution-friendly way — he satisfies this
souped-up standard. And that means that he has not lived up to his
obligation to "develop[] a sustained argument out of . . . legal
precedents," which leads to waiver of this issue. See Town of
Norwood v. Fed. Energy Regulatory Comm'n, 202 F.3d 392, 405 (1st
Cir. 2000).
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Fournier
(1)
Public Trial
Like Acosta, Fournier first argues that the judge's
courtroom-closure order violated the Constitution's public-trial
guarantee. Fournier's claim is really just a variation on Acosta's
and shares the same devastating waiver problem. So we soldier on.
(2)
In-Court Identification
Fournier next claims that a witness's in-court
identification of him occurred under circumstances so suggestive
and unreliable as to deny him due process of the law. The
background events are easily summarized. On the second day of
trial, Miguel Lespier Velázquez ("Lespier") took the stand as a
government witness. Possessing a bachelor's degree in criminal
justice, Lespier was an early Combo leader. Eventually arrested
and later indicted (together with our five defendants) for his role
in this sordid affair, Lespier pled guilty and agreed to help the
government prosecute other conspiracy members. After he had given
a downright chilling account of a Combo killing spree, the
prosecutor asked him who had supplied the guns. "Georgie Mesón,"
Lespier said. Fournier sometimes goes by that name, everyone
agrees, because he owned a sandwich shop called "El Mesón Bypass."
"Pistols, revolvers, and AK-47 rifles" are what Fournier provided,
Lespier noted. And Lespier said that he knew him. The prosecutor
-21-
then asked him to identify Fournier for the jury. But he could
not, even after standing up and looking in the defendants'
direction. "I don't see [Fournier] right now," he said. "I know
him," though, he stressed again.
Later in a sidebar conference, the prosecutor told the
judge that he believed that Lespier could not make an
identification because Fournier had kept his head down and a podium
had blocked Lespier's view. The solution, the prosecutor said, was
to have the defendants move so that the witness could see them
better. Fournier's lawyer objected, and the judge denied the
request.
The following day, the prosecutor continued his direct
examination of Lespier. Fournier attended Combo meetings, Lespier
said. Other key attendees included representatives from different
housing projects — like the Portugués Housing Project — that were
part of the Combo network. Shifting gears, the prosecutor then
asked him about defendant Rodríguez. Rodríguez "belonged to the
Combo" since 2005 and ran the Coto Laurel drug point, Lespier said.
And he identified Rodríguez for the jury — "the person is wearing
a polo shirt, white," Lespier added — after leaving the stand (with
the judge's permission, of course) to get a closer look. "[Do] you
recognize any other person?" the prosecutor asked. Lespier
identified four of the defendants by their nicknames. "What about
the person in the coat," the prosecutor then asked, "do you
-22-
recognize that person?" "Objection," Fournier's counsel said.
"Suggestive." After the judge overruled the objection, Lespier
stated, "[t]hat's Georgie Mesón," i.e., Fournier, and then returned
to the witness stand, where he continued testifying about
Fournier's exploits — including how Fournier supplied Combo cohorts
with guns and cars to use in shootouts with Combo foes. Fournier
even drove the getaway car following one gunfight, Lespier said.
A defendant challenging an in-court identification must
show that the procedure used was unduly suggestive. See, e.g.,
United States v. Espinal-Almeida, 699 F.3d 588, 602 (1st Cir.
2012), cert. denied, 133 S. Ct. 1837 (2013). But even if he does,
the identification is still admissible if the totality of the
circumstances indicates that it was nonetheless reliable. Id. An
identification is unreliable only when it poses a "very
substantial" risk of "irreparable misidentification." Id.
(internal quotation marks omitted). For preserved challenges like
Fournier's, we review the judge's ruling de novo and his fact
findings for clear error. See id. The judge in our case, however,
made no fact findings on this issue.
Here, Fournier cannot get to first base, because we do
not believe that Lespier identified him under suggestive
conditions. Consider the context. The prosecutor and Lespier had
been discussing Rodríguez, not Fournier, when the prosecutor asked
him whether he could identify "that person" — meaning Rodríguez —
-23-
and tell the jury "what that person" had on. And the prosecutor's
quite neutral "What about the person in the coat, do you recognize
that person?" comment did not coach Lespier into fingering Fournier
(whom Lespier knew anyway) as the person wearing the coat.
Undeterred, Fournier plays up how Lespier could not
identify him in court the day before — so, he argues, the
prosecutor's comment must have been suggestive. But even if we
assume for argument's sake that Lespier made the identification
under suggestive circumstances, Fournier still cannot get the
result he wants. Unlike us, the jurors here had front-row seats
for Lespier's in-court identification. Hearing his voice, seeing
his eyes and facial expressions, and observing his body movements,
they were perfectly positioned to spot any slight sign of
uncertainty on his part when he did identify Lespier. Fournier's
attorney also had the chance to challenge the identification's
worth on cross-examination. And because jurors have a superior
vantage point for sizing up the whole picture, the reliability of
testimony like this is normally a matter for them. See, e.g.,
United States v. Jones, 689 F.3d 12, 18 (1st Cir. 2012); United
States v. Maguire, 918 F.2d 254, 264 (1st Cir. 1990). Working with
the totality-of-the-circumstances test, we have held time and again
that "only in extraordinary cases" should identification evidence
be kept from the jury. See Jones, 689 F.3d at 18 (quoting United
States v. de Jesus-Rios, 990 F.2d 672, 677 (1st Cir. 1993)); see
-24-
also Espinal-Almeida, 699 F.3d at 602 (citing United States v.
Rivera-Rivera, 555 F.3d 277, 282 (1st Cir. 2009)). Nothing about
this case screams "extraordinary," however, so the judge's
identification ruling stands.
(3)
Brady Claims
As everyone knows, prosecutors must turn over to the
defense exculpatory evidence that is material either to guilt or
punishment. See, e.g., Brady v. Maryland, 373 U.S. 83, 87 (1963).
The duty to disclose covers impeachment evidence too, even if the
evidence is not inherently exculpatory. See, e.g., Giglio v.
United States, 405 U.S. 150, 154-55 (1972). That is what the Fifth
and Fourteenth Amendments' Due Process Clauses require. See, e.g.,
Haley v. City of Boston, 657 F.3d 39, 47 (1st Cir. 2011).
Broadly speaking, there are two types of Brady
violations. See, e.g., United States v. González-González, 258
F.3d 16, 21-22 (1st Cir. 2001). The first occurs when the
undisclosed evidence shows that prosecutors knowingly used perjured
testimony or allowed false testimony to go uncorrected. See, e.g.,
United States v. Agurs, 427 U.S. 97, 103-04 (1976); Giglio, 405
U.S. at 153; see also González-González, 258 F.3d at 21 (citing
Giglio too, among others cases). For this violation, undisclosed
evidence is material "if there is any reasonable likelihood that
the false testimony could have affected the judgment of the jury."
Agurs, 427 U.S. at 103. The other type of Brady violation occurs
-25-
when prosecutors suppress evidence favorable to the defense, even
if the evidence does not involve false testimony. Id. at 104;
González-González, 258 F.3d at 22. For this violation, evidence is
material "if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the
proceeding would have been different." United States v. Bagley,
473 U.S. 667, 682 (1985). The "reasonable likelihood" and
"reasonable probability" standards are synonymous. See González-
González, 258 F.3d at 22.
Fournier makes an odd Brady/Giglio argument. Bear with
us now as we run through it.
Testifying for the government on the eleventh day of
trial, Ernesto David Vidró Díaz ("Vidró") told the jury about how
he had worked at Fournier's eatery, El Mesón Bypass, from 2003
until 2004. During his time there, Vidró saw some Combo leaders —
guys named "Potro, Bo, Ramoncito, Burrito" — meet with Fournier at
that locale two or three times a week. And on a couple of
occasions he saw Burrito and Bo go into Fournier's office and take
out clear plastic baggies containing what looked liked powdered
cocaine. The duo would then go to an out-of-the-way part of the
restaurant and "deck" the cocaine — drug slang that means to
prepare the drug for distribution.8 See United States v. García-
8
Burrito later worked at El Mesón Bypass for a few weeks in
December 2005, another witness noted.
-26-
Torres, 341 F.3d 61, 64 (1st Cir. 2003). Vidró also saw Combo
personnel score guns and cars there, thanks to Fournier's
connections.
Vidró was no angel either, by the way. He had pled
guilty to conspiring from 2007 through 2008 to sell drugs at the
Pámpanos Housing Project ("Pámpanos"). Prosecutors had handed the
defense FBI reports on interviews with him concerning the Pámpanos
conspiracy, even though the reports involved a different drug
organization and a different period than the ones involved here.
Answering questions posed by Fournier's counsel on cross-
examination, Vidró repeated that he had seen Burrito "decking" at
El Mesón. Vidró also said that he had never seen Fournier "dealing
with drugs," though. "Were you aware if his son was dealing with
drugs?" Fournier's counsel then asked. Vidró replied that he knew
nothing of the son's drug-dealing ways until after he (Vidró) had
left El Mesón Bypass's employ in 2004. Sometime between then and
when he "went to jail" for the Pámpanos drug conspiracy in 2008,
Vidró explained, he learned that Fournier's son "was dealing with
us" as part of that conspiracy. Vidró also said that Fournier had
owned "the drug point at Portugués" for a week.
On the next trial day, Fournier's counsel blasted
prosecutors at sidebar for not disclosing evidence favorable to the
defense — namely, notes of local police officers who had
interviewed Vidró as part of the Pámpanos-conspiracy investigation.
-27-
The notes, counsel said, indicated that Vidró had mentioned
Fournier's son's drug dealings with Potro, Bo, and Burrito — but
not Fournier's. A snippet from one of the undisclosed notes says:
"George Fournier's son used to give the drug" to these men, "who
would cut the drug at the little room of the 'El Mesón' business."
So, counsel argued, Vidró did not testify truthfully when he
described Fournier's drug dealings with Potro, Bo, and Burrito.
The judge rebuffed the defense's attacks, explaining that the notes
involved a different conspiracy and that Vidró testified that he
had never seen Fournier deal with drugs.
Fournier presses the same Brady argument on appeal, but
with a twist. He now says that prosecutors knew that Vidró had
testified falsely. The government hints at the possibility that
Fournier did not preserve the challenge for appeal — which if true
would normally force us to review for plain error rather than abuse
of discretion. See United States v. Prochilo, 629 F.3d 264, 268
(1st Cir. 2011). But because his challenge is easily rejected on
the merits, we skip over any waiver question. See United States v.
Dávila-González, 595 F.3d 42, 49 n.2 (1st Cir. 2010) (taking that
very tack).
The much-fought-over investigative notes — which again
reflect that Vidró had accused Fournier's son but not Fournier of
drug dealings with Combo leaders during the Pámpanos conspiracy
sometime after 2004 but before 2008 — are neither exculpatory nor
-28-
impeaching in this case. To recognize the obvious, Vidró's
statements to Pámpanos investigators touch on a different
conspiracy at a different time, and his telling them that
Fournier's son gave drugs to persons who "decked" them at El Mesón
Bypass in 2007-08 hardly lets Fournier off the hook for allowing
them to "deck" drugs there in 2003-04. Also and importantly, the
notes do not come within a country mile of contradicting Vidró's
testimony, which (we remind the reader) was that he had not seen
Fournier "dealing with drugs." So we do not see how the notes had
a reasonable chance of changing the verdict here. And because
Fournier has not shown that Vidró had perjured himself, that aspect
of his Brady claim goes nowhere too.9
Fournier argues for the first time on appeal that we
should analyze his disclosure claims under the Sixth Amendment's
9
As the government points out, the record strongly suggests
that Fournier's counsel well knew the notes' details before Vidró's
testimony. During his cross-examination of Vidró, for example,
Fournier's lawyer asked, "And isn't it true that you told an agent
that decking was done for Mr. Fournier's son?" After the
prosecutor objected, counsel replied that "[i]t's a prior statement
of the witness." And at side bar counsel said twice that he had
"read it somewhere," adding that Vidró "said that to an agent
pursuant to a document I saw." If true, that would be a problem
for Fournier. See Ellsworth v. Warden, 333 F.3d 1, 6 (1st Cir.
2003) (holding that even exculpatory "[e]vidence is not suppressed
if the defendant either knew, or should have known[,] of the
essential facts permitting him to take advantage of any exculpatory
evidence") (internal quotation marks omitted). On the next trial
day, however, Fournier's attorney did a 180, telling the judge that
he had not known about "those statements." We need not referee
this duel, because Fournier's argument fails for the reasons
recorded above.
-29-
Confrontation Clause. That argument is a nonstarter given
Prochilo, where we noted that our judicial superiors have "thus far
only evaluated [Brady] disclosure claims . . . under the Due
Process Clause of the Fifth and Fourteenth Amendments," not the
Sixth Amendment's Confrontation Clause. See 629 F.3d at 271
(citing Bagley, 473 U.S. at 674-78, and Pennsylvania v. Ritchie,
480 U.S. 39, 51-54 (1987)).
(4)
Sufficiency of the Evidence
Fournier insists that the evidence was too skimpy to
support his conviction for conspiring to possess illegal drugs with
intent to distribute. And that means, he argues (at least
implicitly), that the evidence was too skimpy to support his
conviction of aiding and abetting the possession of guns in
furtherance of a drug crime — if he was not part of the drug
conspiracy, the argument seems to go, then he did not commit a drug
crime and so could not have aided and abetted the possession of
weapons in furtherance of a drug crime. This sufficiency challenge
— which we of course review de novo and in the light most favorable
to the government, see Polanco, 634 F.3d at 45 — misses the mark.
As we said earlier, to prove a drug-conspiracy charge
like the one here, the government must show beyond a reasonable
doubt that (a) a conspiracy existed, (b) the defendant knew of it,
and (c) he voluntarily participated in it, intending to commit the
specified underlying crime. See Ortiz de Jesús, 230 F.3d at 5.
-30-
Fournier thinks that prosecutors fell short of meeting requirements
(b) and (c), because, he says, there is no evidence either that he
had known about the "decking" at El Mesón Bypass or that he had
bought and sold drugs for the conspiracy.
But recall Lespier's testimony (sketched in a way most
flattering to the prosecution): Fournier had attended Combo
meetings, had given Combo personnel guns and cars to take on Combo
rivals, and had taken part in a Combo shooting binge. And recall
too Vidró's testimony (also presented in a way most agreeable to
the government): Fournier had met with Combo big shots at his
sandwich shop, had given Combo cabalists guns and cars, and had
given them a safe place (a secluded part of his restaurant) to
"deck" drugs too. On top of that, Combo VIPs were not shy about
flashing baggies of cocaine in his office, Vidró added. In the
light cast by this evidence, a rational jury could conclude beyond
a reasonable doubt that Fournier knew of and voluntarily joined the
Combo conspiracy with an intent to further its goals. And as for
his specific complaints: The jury was free to draw the commonsense
inference that he knew about the "decking" happening right under
his roof. Also, being a drug seller or buyer is not the only way
to participate in a drug conspiracy. See, e.g., United States v.
Avilés-Colón, 536 F.3d 1, 17-18 (1st Cir. 2008); United States v.
Portalla, 496 F.3d 23, 27 (1st Cir. 2007). Doing an "ancillary"
task — "accounting, communications, strong-arm enforcement," for
-31-
example — can suffice, if done to further the conspiracy's
objective. Avilés-Colón, 536 F.3d at 15 (emphasis added) (quoting
United States v. García-Torres, 280 F.3d 1, 4 (1st Cir. 2002)); see
also Portalla, 496 F.3d at 27 (holding that the fact that the
defendant himself did not peddle drugs, did not hold a "leadership
position" within the conspiracy, "and as a provider of 'peripheral'
services (viz., the provision of cell phones designed to elude law
enforcement detection) was unaware of many details of the
[conspirators'] drug business, would not foreclose a reasonable
jury from convicting him" — given that one of the conspiracy's
goals "was the avoidance of police detection," which he obviously
helped out with). This describes Fournier's situation to a "T."
And with his sufficiency-of-the-evidence attack on the drug-
conspiracy count foiled, his passing attempt to undo his conviction
for aiding and abetting the possession of a firearm in furtherance
of a drug crime is a washout too.10
(5)
Courtroom Seating
Fournier says (through his pro se brief) that court
security officers during the trial sat him and his codefendants 20
10
In a supplementary pro se brief, Fournier contends for the
first time that the evidence at trial materially varied from the
allegations in the indictment. As he sees it, the evidence shows
that he may have violated some gun laws but did not prove that he
had joined the charged drug conspiracy. His argument has no bite,
however, because (as we just explained) sufficient evidence
supports his drug-conspiracy conviction.
-32-
feet from counsel table and "cutoff all communication with their
lawyers" — actions, he adds, that infracted the Sixth Amendment.
See, e.g., United States v. Rodríguez-Durán, 507 F.3d 749, 776 (1st
Cir. 2007) (discussing a defendant's Sixth-Amendment right to
consult with counsel at trial). His lawyer never complained about
this below, and the record discloses no whisper as to what actually
happened. Consequently, we must dismiss these claims without
prejudice to his litigating them (if he desires) in a 28 U.S.C.
§ 2255 proceeding. See, e.g., United States v. Bucci, 525 F.3d
116, 129 (1st Cir. 2008). Obviously, nothing we have said or left
unsaid should be considered as even a remote suggestion of how a
petition like that might fare.
Fournier also says (again, through his pro se brief) that
having the defendants sit together during the trial deprived him of
the presumption of innocence. Plain-error review applies, because
his lawyer made no mention of this below. See, e.g., Torres-
Rosario, 658 F.3d at 116. That is probably because the argument is
a clear loser under United States v. Turkette, 656 F.2d 5 (1st Cir.
1981). There, we rejected the suggestion that a judge had offended
the Constitution by sitting the defendants alone in the first row
of the courtroom's spectators' section — a borderline "frivolous"
claim, we said, because
the defendants had to be seated somewhere, and
from the start of the trial the jury knew that
all of them . . . were charged with
conspiracy. If the jury received a suggestion
-33-
of guilt by association, and their verdict
belies this, it was the result of the
conspiracy charge, not the seating
arrangement.
Id. at 10. Ditto here. Consequently, we see no error, plain or
otherwise.
(6)
Closing Argument
Finally, Fournier alleges (also through his pro se brief)
several problems with the prosecution's closing argument. Because
he did not object below, he must show plain error. See, e.g.,
United v. Kasenge, 660 F.3d 537, 541 (1st Cir. 2011); United States
v. Kinsella, 622 F.3d 75, 84 (1st Cir. 2010). But even then,
reversal is justified only if the prosecution's comments "so
poisoned the well that the trial's outcome was likely affected."
Kasenge, 660 F.3d at 542 (quoting United States v. Henderson, 320
F.3d 92, 107 (1st Cir. 2003)).
Undaunted, Fournier condemns the prosecutor for saying
that he had armed Combo members with "rifles," had owned the
"Portugués" drug point for a "week," and had provided "narcotics"
too. None of this crossed any line, however, because the record
supports what the prosecutor said: Lespier had explained how
Fournier had given Combo personnel "AK-47 rifles" and had owned the
"Portugués" drug point for a week, and prosecutors could argue the
Fournier-sold-narcotics inference based on his having owned that
drug point. See, e.g., Manor, 633 F.3d at 18 (concluding that a
-34-
defendant's prosecutorial-misconduct claim flopped because the
"prosecutor had enough evidentiary support" to make the complained-
of statement); United States v. Martínez-Medina, 279 F.3d 105, 119
(1st Cir. 2002) (finding nothing objectionable with statements that
"appear reasonably supported by the record or are within the
prerogative of the prosecution to characterize the evidence
presented at trial and argue certain inferences to the jury").
Next Fournier excoriates the prosecutor for saying that
an early Combo member called "Yiyito" (whom we have not yet
mentioned) had worked at El Mesón Bypass in December 2005, when in
fact he had not. Another Combo member, Burrito (whom we have
introduced already), had worked here during that period, the
evidence shows. Perhaps the prosecutor confused the two. But
given how both Yiyito and Burrito were Combo members, how the
slight misstatement touched on an incidental matter (i.e., whether
a Combo member besides Fournier had worked at El Mesón Bypass), how
the judge had cautioned jurors that counsel's comments were not
evidence and that only their recollection of the facts counted, and
how there was enough evidence of Fournier's guilt, we easily
conclude that the complained-of remark did not prejudice Fournier's
right to a fair trial. See, e.g., United States v. Page, 521 F.3d
101, 107 (1st Cir. 2008); United States v. Carrasquillo-Plaza, 873
F.2d 10, 14 (1st Cir. 1989).
-35-
Castillo
(1)
Confession
Castillo's lead argument is that the judge botched the
case by not suppressing his (allegedly) involuntary confession.
But the evidence presented at the suppression hearing — which we
are about to discuss — fairly supports the judge's conclusion that
his confession was voluntary.
Convening a hearing mid-trial following Castillo's oral
motion to suppress, the judge heard from one witness: Enrique
Rodríguez, a Puerto Rico Police officer, who explained what went
down on the heels of Castillo's arrest. Agents at a local police
office gave Castillo an oral Miranda warning sometime before noon
while they were processing him.11 Castillo said that he understood
his rights. Later, officers gave him a form advising him of his
Miranda rights, and he signed it around 2 p.m. Later still, while
the police were driving him to federal jail, Officer Rodríguez
11
As any crime-drama enthusiast knows, Miranda v. Arizona
requires that law-enforcement officers advise a custodial suspect
of four rights before interrogating him:
[A suspect] must be warned . . . [1] that he has the
right to remain silent, [2] that anything he says can be
used against him in a court of law, [3] that he has the
right to the presence of an attorney, and [4] that if he
cannot afford an attorney one will be appointed for him
prior to any questioning.
384 U.S. 436, 479 (1966). Officers need not use any particular
magic words, see id. at 476 — any words that clearly inform the
suspect of his rights will do, see Florida v. Powell, 559 U.S. 50,
60 (2010).
-36-
asked a nervous-looking Castillo if "something was wrong."
Responding, Castillo confessed that he had worked at a drug point
in the Dr. Pila Public Housing Project.
After the hearing, the judge found that Castillo was
twice Mirandized before saying anything. Also, the judge found
that the police had not used any coercive tactics that would spoil
the voluntariness of his confession. And so the judge denied
Castillo's motion to suppress.
For obvious reasons, Castillo spends considerable energy
trying to convince us to reverse that ruling. We review de novo
the judge's legal conclusion about the voluntariness of the
confession. See, e.g., United States v. Boskic, 545 F.3d 69, 77
(1st Cir. 2008). But we must accept the judge's factfinding on the
circumstances surrounding the confession unless clearly erroneous,
see id., because determining credibility, weighing the evidence,
and drawing inferences from the evidence all fall within his
province, see, e.g., United States v. Valle, 72 F.3d 210, 213-14
(1st Cir. 1995).
Castillo argues that officers coerced him to confess in
the car by not giving him food at any point before he spoke. There
is simply no record support for that claim, however. True, Officer
Rodríguez could "not remember" if anyone had "offered" Castillo
food "or not." But he stressed that "it is our regular" practice
"to offer" persons in Castillo's shoes something to eat. And he
-37-
quickly added that Castillo never asked him for food, telling
defense counsel that "the only thing that we talked about was what
he admitted [to] me and nothing else." "He never complained" about
"anything," Officer Rodríguez said, and he looked "normal" too.
The judge was entitled to believe the officer's testimony,
obviously. Given all this, we cannot brand the judge's no-coercion
factfinding clearly erroneous.
Surprisingly, Castillo contends that the government did
not prove when the agents Mirandized him. And, he adds, the
evidence "contradicts" the government's theory that he had been
Mirandized before the confession. Surprisingly is the right word,
because the record — Officer Rodríguez's testimony (which the judge
could credit without committing clear error) and Castillo's signed
Miranda-rights-waiver form — shows that officers had twice
Mirandized him before he opened up to Officer Rodríguez. Again, we
see no clear error.
Castillo, lastly, grumbles that he was arrested in the
morning, without anyone taking him to a magistrate judge — a one-
sentence-throwaway line appearing in his brief, supported by no
analysis explaining why any of that should matter for purposes of
assessing the voluntariness of his confession. Whatever point he
is trying to make is waived. See, e.g., Zannino, 895 F.2d at 17
(deeming waived claims that lack coherence or developed argument).
-38-
The bottom line is that the judge did not slip in
admitting Castillo's confession.
(2)
Sufficiency of the Evidence
Castillo makes a sufficiency-of-the-evidence claim,
arguing that the government did not prove that he both had
knowledge of the drug conspiracy and had acted with an intent to
further its objectives. But his admission that he had sold drugs
at what the evidence showed was a Combo-controlled drug point cuts
the legs out from under this argument. Enough said.
(3)
Drug Quantity
At sentencing the judge calculated Castillo's sentence on
the drug conspiracy count this way. Using the sentencing
guidelines' 2009 edition, the judge noted that Castillo was
responsible for (among other things) 1 kilogram or more of heroin.
That amount — which activated a statutory range of 10 years to
life, see 21 U.S.C. § 841(b)(1)(A) — resulted in a base-offense
level of 32. After adding 2 levels for conduct within 1,000 feet
of a public-housing facility, the guidelines level totaled 34,
which, when cross-referenced against Castillo's criminal-history
category of I, produced a guidelines range of 151 to 188 months.
But after accounting for the § 3553(a) factors, the judge imposed
a 120-month prison sentence — a sentence 31 months below the low
end of the guidelines.
-39-
An unhappy Castillo now accuses the judge of presiding
over a process that flunked Alleyne, hitting him with the full
weight of the conspiracy's drug doings instead of relying on
individualized drug amounts determined beyond a reasonable doubt.
Because he débuts this claim here, our review is for plain error.12
But no plain error rears its ugly head.
As we observed in discussing Acosta's sentencing
challenge, the jury made individualized beyond-a-reasonable-doubt
drug findings for each defendant, concluding when they got to
Castillo that he had conspired to possess and distribute 1 kilogram
or more of heroin, less than 500 grams of cocaine, less than 5
grams of crack, and less than 100 kilograms of marijuana. And the
jury's particularized beyond-a-reasonable-doubt findings sap the
strength from Castillo's Alleyne argument.
Hold on, says Castillo, the jury did not have enough
evidence to make that finding. This is an unpreserved sufficiency
argument reminiscent of Acosta's. And like Acosta's it is a
deadbang loser, for the same reason. He says not a word about how
— after considering the evidence and inferences in the light most
sympathetic to the government — he can clear the very high clear-
12
It may seem strange to talk about plain error, given how
Alleyne came down after our five defendants argued these
consolidated appeals to us. But to preserve a claim, a litigant
must press the point below, even if the caselaw is against him —
otherwise our review is (at best) limited to plain error. See
United States v. Harakaly, 734 F.3d 88, 93-95 (1st Cir. 2013).
-40-
and-gross-injustice hurdle required for reversal, see Pratt, 568
F.3d at 18, which does not cut it, see Town of Norwood, 202 F.3d at
405.
Still hoping against hope for a reversal, Castillo argues
that the judge bungled the instructions by not focusing the jury's
attention on whether he and his codefendants had "knowingly"
conspired to possess and distribute the drug types and quantities
alleged in the indictment. Hardly. Getting down to the nitty-
gritty, we see that the judge told the jury that it could convict
a defendant on the drug-conspiracy count only if it found "beyond
a reasonable doubt" that the "defendant knowingly and willfully"
conspired to possess and distribute the drug types and quantities
"as charged" in "the indictment." Keeping in mind too the special
verdict forms that required the jury to make personalized drug-
type-and-quantity findings for each of the five defendants beyond
a reasonable doubt, it is readily evident that Castillo's theory is
a bad one.
Rodríguez
(1)
Variance
Rodríguez claims that a fatal variance existed between
the drug conspiracy alleged in the indictment and the drug
conspiracy proved at trial. To get his conviction reversed on this
ground, Rodríguez must show two things: first, that a variance
occurred — i.e., that the facts proved at trial differed materially
-41-
from those alleged in the indictment; and second, that the variance
was prejudicial — i.e., that it affected his substantial rights.
See, e.g., United States v. Seng Tan, 674 F.3d 103, 110 (1st Cir.
2012). Critically, there is no prejudicial variance if the
indictment gave him enough details to prepare a defense and plead
double jeopardy to prevent another prosecution for the same crime.
See id.
Our review of this claim is similar to a sufficiency-of-
the-evidence challenge and is assessed de novo, if properly
preserved. See, e.g., United States v. Dunbar, 553 F.3d 48, 61
(1st Cir. 2009). The government floats the idea that maybe
Rodríguez did not say enough in the district court to preserve the
argument for appeal. Maybe, but because his challenge is a dud, we
skirt the waiver question.
The gist of his theory is that the indictment
"exaggerated [his] participation" in the drug conspiracy, linking
him to three drug points while the trial evidence only linked him
to one, the Coto Laurel drug point mentioned earlier in this
opinion. Going by the "strict definition" of the word, one could
argue "that proving fewer than all of the facts in an indictment —
but adding nothing new — is not a variance at all." United States
v. Mueffelman, 470 F.3d 33, 38 n.6 (1st Cir. 2006). Yet "omissions
could so seriously distort the picture presented . . . as to raise
questions of unfair prejudice," making a variance analysis proper.
-42-
Id. To move the analysis along, we will assume without deciding
that Rodríguez can show a variance. Still, he must show prejudice
sufficient to justify reversal. This he has not done. Things
might be different if the indictment had not mentioned the Coto
Laurel drug point or had "masked" its importance by putting "undue
emphasis" on the other drug points. See id. at 39 (discussing the
masking phenomenon). But the indictment did mention the Coto
Laurel drug point specifically, explicitly, and repeatedly. And
Rodríguez's counsel did try to discredit the charges at trial where
she could — challenging Serrano, for example, regarding his
knowledge of the history of the Coto Laurel drug point (its
ownership, how long it had been up and running, etc.).
The short of it is that the indictment gave Rodríguez
fair warning that the government viewed his Coto-Laurel-drug-point
ties as an important part of the overall conspiratorial scheme.
And because he cannot credibly claim surprise, the alleged variance
does not merit reversal. See id.; see also United States v.
Rodriguez, 525 F.3d 85, 103 (1st Cir. 2008) (concluding that even
if the evidence varied from the charges, the government's proving
that the defendant "ran one of several drug points" instead of "the
entire drug organization" caused no prejudice, because the
-43-
indictment gave him sufficient knowledge of the charges against him
so that he could craft a defense).13
(2)
Sufficiency of the Evidence
Rodríguez separately argues that insufficient evidence
supports his conviction on the gun count. To prove guilt here, the
government had to prove beyond a reasonable doubt, first, that
Rodríguez knew "to a practical certainty" that someone would use or
carry a firearm during and in relation to a drug-trafficking
offense or possess a firearm in furtherance of one and, second,
that he willingly took some action to facilitate the firearm's use,
carrying, or possession. See, e.g., United States v. Alverio-
Meléndez, 640 F.3d 412, 420 (1st Cir. 2011); United States v.
Negrón-Narváez, 403 F.3d 33, 37-38 (1st Cir. 2005); see also United
States v. Medina-Román, 376 F.3d 1, 6 (1st Cir. 2004) (clarifying
that knowledge meeting the "practical certainty" test will in many
cases arise "from such an intimate involvement in the enterprise
13
Somewhat relatedly, Rodríguez grouses that because the judge
let jurors have a copy of the indictment in the jury room during
deliberations, they had at their fingertips the "unproved"
allegations about the other drug points, which, he adds, without
citing a single case, caused "unfair prejudice." But the judge
instructed them that the indictment itself is not evidence of
guilt. He also told them that the defendants are presumed innocent
until proven guilty beyond a reasonable doubt. We presume that
juries follow instructions. See, e.g., United States v. Venti, 687
F.3d 501, 504 (1st Cir. 2012). And those instructions are
sufficient "to guard against the jury's using the indictment as
evidence," United States v. McFarlane, 491 F.3d 53, 60 (1st Cir.
2007), which takes all the wind out of Rodríguez's sail on this
issue.
-44-
that the requirement for an affirmative action to facilitate the
crime inevitably will be met").14 At bottom, Rodríguez really
trains his sights on one issue: Did prosecutors prove his
facilitation? Perusing the evidence in a way most amiable to the
government, see Polanco, 634 F.3d at 45, we answer yes.
Earlier we discussed how Lespier testified that Rodríguez
ran the Combo-controlled Coto Laurel drug point. What we did not
mention then is that Lespier also testified that Combo leaders like
Rodríguez used armed "enforcers" all the time. Extraordinarily
violent men (no doubt), enforcers protected Combo higher-ups and
beat down rival drug gangs — kill-or-be-killed work, with guns
among the tools of their trade. See, e.g., United States v.
Correy, 570 F.3d 373, 400 (1st Cir. 2009). Being in charge at the
Coto Laurel drug point meant that Rodríguez had a hand in personnel
decisions, bossing the help around with life-and-death consequences
14
As an aside, we note that an interesting issue now before
the Supreme Court is
[w]hether the offense of aiding and abetting the use of
a firearm during and in relation to a crime of violence
or drug trafficking crime, in violation of 18 U.S.C.
§§ 924(c)(1)(A) and 2, requires proof of (i) intentional
facilitation or encouragement of the use of the firearm,
as held by the First, Second, Third, Fifth, Seventh,
Eighth, Ninth, and Eleventh Circuits, or (ii) simple
knowledge that the principal used a firearm during a
crime of violence or drug trafficking crime in which the
defendant also participated, as held by the Sixth, Tenth,
and District of Columbia Circuits.
Petition for Writ of Certiorari at I, Rosemond v. United States,
No. 12-895 (U.S. Jan. 16, 2013); see also Rosemond v. United
States, 133 S. Ct. 2734 (2013) (granting certiorari).
-45-
— or so a jury could find. For example, one enforcer, a person
called "Gordo," lost his life defending Rodríguez, Lespier said.
Lespier also talked about seeing Rodríguez's main enforcer, Miguel
Pacheco, at the Coto Laurel drug point. And like other enforcers,
Pacheco was packing heat. Considered in the proper light, the
evidence and reasonable inferences supply enough proof of
Rodríguez's facilitation. See Badamo v. United States, 201 F.3d
426, 1999 WL 1338076, at *1, 2 (1st Cir. 1999) (per curiam)
(unpublished table decision) (finding adequate evidence of
facilitation where (a) the defendant was responsible for having
another help out with a drug-trafficking crime by posing as a
police officer during a proposed robbery of a "stash house," and
(b) a jury could reasonably infer that a poser would have a gun on
him, just like a real officer would).15
(3)
Drug Quantity
and
Role in the Offense
This brings us to Rodríguez's challenges to his 240-month
sentence for his conviction on the drug-conspiracy count. To
understand his claims, some background is helpful.
The jury found beyond a reasonable doubt specific drug
amounts attributable to Rodríguez — 1 kilogram or more of heroin,
5 kilograms or more of cocaine, 50 grams or more of crack, and less
15
We can and do rely on Badamo as persuasive authority. See
1st Cir. R. 32.1.0(a).
-46-
than 100 kilograms of marijuana. The first finding alone meant
that he faced a statutory minimum sentence of 10 years and a
maximum of life. See 21 U.S.C. § 841(b)(1)(A). With the statutory
range set, the judge had to make defendant-specific drug findings
by a preponderance of the evidence, see United States v. Rodríguez,
731 F.3d 20, 31 (1st Cir. 2013), which is a more-likely-than-not
standard, see United States v. Vixamar, 679 F.3d 22, 29 (1st Cir.
2012). And using the 2009 iteration of the guidelines, the judge
found that Rodríguez had been a leader of the Coto Laurel drug
point and a leader in the Combo. From this finding the judge
concluded that Rodríguez could have reasonably anticipated the
amounts of drugs being distributed by the conspiracy each year —
i.e., at least 182.5 kilograms of heroin, 182 kilograms of cocaine,
136.6 kilograms of crack, and 136 kilograms of marijuana, which is
the equivalent of over 30,000 kilograms of marijuana, the judge
noted.16 That led to an offense level of 38, the judge said, which
he enhanced 2 levels for conduct within 1,000 feet of a public-
housing facility and 3 levels for Rodríguez's role as a manager or
supervisor in the conspiracy. The result was an offense level of
43, which combined with his criminal-history category of I to give
him a guidelines range of life in prison. The judge then
16
For sentencing purposes, judges must convert diverse drugs
into "marijuana equivalents" so that they are adding apples to
apples in computing the defendant's offense level. See Kinsella,
622 F.3d at 82.
-47-
considered the § 3553(a) factors before settling on the 240-month
term.
Rodríguez essentially thinks that the judge stumbled
twice — first by attributing conspiracy-wide drug quantities to him
and then by imposing a 3-level sentencing enhancement on him for
his supposed role as a manager or supervisor in the conspiracy.
Spoiler alert — we see no error.
Absent individualized findings concerning the "amounts
attributable to, or foreseeable by, that defendant," the quantities
ascribed "to the conspiracy as a whole cannot automatically be
shifted to the defendant." United States v. Colón-Solis, 354 F.3d
101, 103 (1st Cir. 2004). Rodríguez concedes that the judge made
particularized findings. He just believes that those findings are
insupportable. Our review is for clear error, see, e.g., United
States v. Correa-Alicea, 585 F.3d 484, 489 (1st Cir. 2009), knowing
that a finding is not clearly wrong simply because it strikes us as
probably wrong — rather, "it must prompt 'a strong, unyielding
belief, based on the whole of the record,' that the judge made a
mistake," Toye v. O'Donnell (In re O'Donnell), 728 F.3d 41, 45 (1st
Cir. 2013) (quoting Islamic Inv. Co. of the Gulf (Bah.) Ltd. v.
Harper (In re Grand Jury Investigation), 545 F.3d 21, 24 (1st Cir.
2008)); accord United States v. Cintrón-Echautegui, 604 F.3d 1, 6
(1st Cir. 2010).
-48-
Plenty of evidence supports the judge's finding that
Combo-leader Rodríguez could have reasonably foreseen the amounts
of drugs embraced by the conspiracy: Onetime-Combo leader Lespier
testified that Rodríguez belonged to the Combo and ran the Coto
Laurel drug point. Confidential-informer Serrano testified that
Rodríguez got the drugs for that drug point from his Combo
counterparts at the Dr. Pila Housing Project. The two were
"united," to use Serrano's word. Another cooperating codefendant,
Elvin Cartagena Colón ("Cartagena"), whom we have not yet
mentioned, saw Rodríguez hand a Combo leader a "tall bundle" of
cash for drugs. Still another cooperating witness, Ediberto García
Román ("García"), whose name we have not yet brought up, said
Rodríguez met with Combo confederates to coordinate the drug supply
for the Coto Laurel drug point. So Rodríguez did not just know
Combo leaders. He was, as the judge found, a Combo leader too who
did conspiracy-linked drug business with Combo members. And all of
this was enough to satisfy the preponderance standard, despite what
Rodríguez says.
As for his challenge to the manager-or-supervisor-in-the-
conspiracy enhancement, see U.S.S.G. § 3B1.1(b), Rodríguez again
must show clear error, see United States v. Garcia-Hernandez, 659
F.3d 108, 114 (1st Cir. 2011). And again he cannot.
An enhancement under this guideline proceeds in a
sequence of two steps. Id. First the sentencing judge must find
-49-
that the underlying offense involved five or more persons
(including the defendant) or was otherwise extensive. Id.; United
States v. Conley, 156 F.3d 78, 85 (1st Cir. 1998). Then the judge
"must find that the defendant managed or supervised one or more of
the other participants in that activity." Garcia-Hernandez, 659
F.3d at 114. The preponderance-of-the-evidence standard of proof
applies, not surprisingly. See, e.g., United States v. Alicea, 205
F.3d 480, 485 (1st Cir. 2000).
Rodríguez does not contest the judge's finding that the
conspiracy involved at least five persons — indeed, his counsel
specifically waived that argument at oral argument, reserving his
objection for the judge's conclusion that he played a managerial or
supervisory role in the scheme. But gobs of testimony from
multiple witnesses support the judge's finding. Just from
Lespier's and Serrano's testimony one can reasonably infer that
Rodríguez — at a minimum — controlled the criminal activity of
(a) two enforcers — one of whom, Gordo, died protecting him;
(b) three drug sellers — Wanda, Pucho, and Acosta; and (c) one drug
runner — Acosta, who took the bundle of drugs Rodríguez gave him
and passed them on to the sellers. That will do. See, e.g.,
United States v. Cruz-Rodríguez, 541 F.3d 19, 33 & n.12 (1st Cir.
2008) (discussing what it means to manage or supervise a person).
Desperately, Rodríguez essentially argues that neither Lespier nor
Serrano were credible. But the judge had a better vantage to
-50-
assess the credibility of all involved. And we see no reason to
reverse. See generally United States v. Platte, 577 F.3d 387, 392-
93 (1st Cir. 2009) (noting that "credibility determinations are
part of the sentencing court's basic armamentarium"). The
enhancement was justified.
Guzmán
(1)
Car Search
Guzmán berates the judge for not suppressing the fruits
from the search of a car (most notably an incredible amount of
heroin). He is convinced that the traffic stop that led to the
search was a pretext to allow the police to rummage inside the auto
without a warrant, violating his reasonable expectation of privacy.
And he is also convinced that the judge should have held an
evidentiary hearing on the issue. The story behind all this is
easily told.
Guzmán had rented a Chevy Malibu but had let three others
(coconspirators, it turns out) use it on the day of the search.
The police arrested the trio after pulling the car over on a
highway for a traffic violation and spotting what appeared to be
heroin in the auto's "interior" (exactly where the record does not
say). Guzmán was not in the car. According to an officer at the
scene, his department's policy is that once law enforcers take
custody of a car they must itemize its contents in front of the
arrestees. And an inventory search of this auto turned up over
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5,000 baggies of heroin in the car's trunk, along with other drug-
related paraphernalia.
Calling the search and seizure "illegal," Guzmán argued
below that none of this evidence could be used against him. He
also insisted that his car-renter status meant that he had a
reasonable expectation of privacy at stake in the search. He
offered no affidavit or equivalent evidentiary material to support
his suppression theory, however. And the judge denied the
suppression motion, without holding a hearing or issuing a written
decision. Guzmán moved the judge to reconsider, but again failed
to provide an affidavit. The judge denied that motion too. Six
months later, Guzmán moved once more for reconsideration, this time
supplying an affidavit swearing that he had loaned the car to his
three "friends" and had told them not to open the glove compartment
or the trunk and that "[u]pon information and belief no traffic
violation" had occurred while his friends were in the rented auto.
Motion denied, the judge ruled.
In this venue, Guzmán still champions (as we just said)
his theories that the stop was pretextual and that the search
compromised his reasonable expectation of privacy. Nothing that he
says on this score matters, however, and our de novo review, see
United States v. De Jesús-Viera, 655 F.3d 52, 58 n.3 (1st Cir.
2011), leads straight to affirmance. The reason why is clear:
-52-
Having arrested Guzmán's "friends" after seeing a baggie
of suspected heroin in the car's interior, officers could search
the auto under two traditional exceptions to the warrant
requirement: the-search-incident-to-arrest exception and the
inventory-search exception. The first exception permits a
warrantless search if "it is reasonable to believe" that the car
has "evidence of the offense of arrest." Arizona v. Gant, 556 U.S.
332, 351 (2009); see also Polanco, 634 F.3d at 42 (stressing how
"Gant clarified" that an auto search may come within this exception
"only in two very specific situations: when the arrestee is
unsecured and within reaching distance of the passenger compartment
at the time of the search (the officer-safety exception), or when
it is reasonable to believe evidence relevant to the crime of the
arrest might be found" in the auto) (internal quotation marks
omitted). During oral argument before us Guzmán's lawyer tried to
parry this point by challenging the lawfulness of the trio's
arrest. But he has no standing to do so, given that he himself was
not one of the arrestees. See generally Alderman v. United States,
394 U.S. 165, 174 (1969) (noting that "Fourth Amendment rights are
personal rights which, like some other constitutional rights, may
not be vicariously asserted"). Indeed, we asked Guzmán's lawyer
for authority to back up her surmise. She had none. And our
research turned up none.
-53-
The other exception holds that if the arrests are legal,
then the police can take the car back to the barrack and search it
pursuant to standard inventory procedures — provided also that they
do not "act[] in bad faith or for the sole purpose of
investigation." Colorado v. Bertine, 479 U.S. 367, 371, 372
(1987). Once again Guzmán's lawyer wrangled with us over the
legality of his friends' arrests, without citing any pertinent
authority. And once again Guzmán's argument falls apart on
standing grounds, given that he himself was not among those
arrested. So he cannot challenge the propriety of the inventory
search. See Alderman, 394 U.S. at 174.
But wait, says Guzmán, surely the police did not have to
take the car — they could have called him to come get it instead.
This line of argument is a dead end, however, because "the
existence of alternative means of dealing with the automobile, even
less intrusive means, does not illegitimate the constables'
decision" to remove it. United States v. Rodriguez-Morales, 929
F.2d 780, 786 (1st Cir. 1991).
As for his faulting the judge for not convening an
evidentiary hearing — an issue we review for abuse of discretion,
see, e.g., United States v. Allen, 573 F.3d 42, 50-51 (1st Cir.
2009) — we note that Guzmán had to satisfy an entry-level burden of
showing that the police's warrantless search did not come within
"any" recognized warrant exception, id. at 51 (quoting United
-54-
States v. Calderon, 77 F.3d 6, 9 (1st Cir. 1996)), including the
two we just mentioned. And this he did not do, for he alleged
nothing "definite, specific, detailed, and nonconjectural" that
could defeat application of either exception here. See id.
(quoting Calderon, 77 F.3d at 9). No surprise, then, that we see
no abuse of discretion.
With that said, we turn to his next challenge.
(2)
Sufficiency of the Evidence
Guzmán asks us to declare the evidence inadequate to
support his gun-count conviction. Basically, his gripe is that
nothing shows that he had taken some step to help another use,
carry, or possess a firearm. The evidence was hardly overwhelming,
as the government concedes. But viewed in the proper light, see
Polanco, 634 F.3d at 45, we believe that there was enough to sink
Guzmán's argument.
Here is why. The jury heard from cooperating-conspirator
Roberto Pizarro Orta ("Pizarro") about the time Combo-leader Guzmán
took his brother Alberto to the house of a man named "Willie."
Willie was supposed to give the brothers Guzmán the cash from that
week's heroin sales. Like his brother, Alberto was a Combo member.
And it was no secret that Alberto had a gun on him. Pizarro "saw"
him with a ".38 revolver," actually. Anyway, a suspicious car was
in the area. And Guzmán and the others asked Pizarro to check it
out. "I told them I was not going to check any car, empty" — and
-55-
by "empty" he meant "unarmed." So Pizarro asked for and got
Alberto's pistol.17 Thin this evidence may be. But reading
everything together with all reasonable inferences in the light
most favorable to the government, we think there was enough for a
levelheaded jury to find that Guzmán had his pistol-packing brother
tag along to make sure that he got his hands on the drug money
without incident — particularly when one remembers the other
evidence showing how Combo leaders used armed enforcers to help
push their dirty business to the max. And so there was sufficient
evidence of Guzmán's facilitation. See Badamo, 1999 WL 1338076, at
*2.
(3)
Jury Instructions
Guzmán next contends that the judge misinstructed the
jury on the gun count. But because he never objected below, Guzmán
must run the gauntlet of plain-error review. See, e.g., United
States v. Griffin, 524 F.3d 71, 76 (1st Cir. 2008). That requires
him to show an error that was "obvious and clear" and that affected
his substantial rights. Id. Even then, we need not reverse unless
the error also seriously undermined the fairness, integrity, or
public reputation of judicial proceedings. See Kinsella, 622 F.3d
at 83.
17
Alberto, by the way, was also indicted in this case but pled
guilty to the drug-conspiracy count long before trial.
-56-
Moving to the particulars of the present case, we see
that the judge started off talking about the elements of the drug-
conspiracy count, instructing the jury on the law of conspiracy,
for example. Then he charged the jury on the elements of the gun
count, touching on how the law prohibits anyone from aiding and
abetting the use or carrying of a firearm during and in relation to
a drug crime or possessing a firearm in furtherance of one.
Because the drug crime here was conspiracy to possess and
distribute illegal drugs, the judge talked about the law of
conspiracy some more. And then the judge explained the meaning of
aiding and abetting.
For his first argument, Guzmán says that the judge never
told the jury that it could consider "whether defendant aided and
abetted a member in using or carrying firearms in relation" to a
drug crime only if it first determined that defendants had
conspired to commit a drug crime. Nonsense. The judge explicitly
charged the jury that to find Guzmán guilty on the gun count it
would "first" have to find that "the defendants committed the crime
of conspiring to possess with intent to distribute" the illegal
drugs listed in the indictment. Hardly the stuff of plain error,
by any stretch of the imagination.
Guzmán also calls out the judge for not telling the jury
that to find "Guzmán" guilty on the gun count it had to find that
he had "performed some affirmative act, had some stake or power
-57-
over any firearm." Reduced to essentials, what the judge told the
jury was aiding and abetting "means intentionally to help someone
else commit the crime charged." And, he added, a defendant is
guilty of aiding and abetting if "someone else committed the
charged crime" (i.e., using or carrying a firearm during and in
relation to a drug crime or possessing a firearm in furtherance of
one) and the "defendant[] consciously shared the other person's
knowledge of the charged crime," "intended to help" him, and "took
part in the endeavor seeking to mak[e] it succeed." There is no
etched-in-stone way to convey the aiding-and-abetting idea to the
jury, and what is necessary might turn on the circumstances of the
case. See United States v. Urciuoli, 513 F.3d 290, 300 (1st Cir.
2008); see also United States v. Gonzalez, 570 F.3d 16, 29 (1st
Cir. 2009) (illustrating that point by noting that "we have
explicitly declined to require the 'shared' intent language found
in some of our opinions"). But the judge's discussion essentially
mirrors the ones found in our cases. See, e.g., United States v.
Rodríguez-Lozada, 558 F.3d 29, 41 (1st Cir. 2009); United States v.
García-Carrasquillo, 483 F.3d 124, 130 (1st Cir. 2007); United
States v. Rosario-Díaz, 202 F.3d 54, 62-63 (1st Cir. 2000). And
Guzmán has not shown why the particulars of his case required the
judge to phrase the aiding-and-abetting concept any differently.
So when you get right down to it, what the judge said does not come
within shouting distance of plain error.
-58-
As a last-ditch effort, Guzmán lodges a double complaint
against the judge's conspiracy charge. For openers, he calls them
unduly repetitive, noting that the judge discussed general
conspiracy principles three times. He then sounds off about the
charge's placement, groaning that the second set of conspiracy
instructions were read too close to the aiding and abetting charge.
And all of this, he says, confused jurors into thinking that they
could convict him of conspiring to possess firearms, rather than of
aiding and abetting a firearm's use or carry during and in relation
to, or possession in furtherance of, a drug crime. We think not.
Notably for present purposes, Guzmán's counsel candidly
conceded at oral argument that the judge did not misstate the law
of conspiracy. And having read the entire jury charge with care,
see Griffin, 524 F.3d at 76 (telling us that this is what we must
do), we cannot buy the idea that the repetition must have — by its
sheer weight — coaxed the jury to find against Guzmán on the gun
count. Nor did we detect any defect with the instructions'
placement that might have befuddled the jury in deciding his fate
on that count. Nothing remotely resembling plain error here, to
put it mildly.
(4)
Napue Violations
Convinced that prosecutors violated the constitutional
rule against knowingly using perjured testimony, see Napue v.
Illinois, 360 U.S. 264, 269 (1959), and that there is a "reasonable
-59-
likelihood" that that testimony affected the jury's judgment, see
United States v. Mangual-Garcia, 505 F.3d 1, 10 (1st Cir. 2007),
Guzmán blisters the judge for not granting him a new trial — an
issue that usually invites abuse-of-discretion review, see
González-González, 258 F.3d at 20. The Napue-violation point that
he pushes here pivots on his belief that prosecutors let some
cooperating witnesses lie on the stand about the benefits that they
would get after testifying under plea and cooperation agreements.
What makes this argument a no-go is that it is not the one that he
had presented below.
Guzmán's new-trial motion accused only cooperating
witness García of telling whoppers about potential benefits. A
former heroin seller at the Dr. Pila Housing Project, García
testified that he would give money from his sales to "Willie," who
would in turn give it to Guzmán. García explained that he had
confessed to the police that he had participated in the Combo-drug
conspiracy, a crime with which he was never charged. He also said
that he was cooperating with prosecutors because he wanted to turn
his life around. And he denied any agreement for prosecutorial
leniency. Guzmán's new-trial motion speculated that García must
have lied because it was "highly unlikely" that anyone would
cooperate without an agreement. The judge found no Napue
violation. But Guzmán has now shifted the focus of his attack from
García to "Lespier" and others "whose testimony, produced under a
-60-
plea and cooperation agreement," suggested that prosecutors had
offered "'no benefits'" to secure their help. Having switched
tactics this way so late in the game, Guzmán has waived the
argument that he now seeks to pursue. See United States v. Slade,
980 F.2d 27, 31 (1st Cir. 1992) (emphasizing that "a party is not
at liberty to articulate specific arguments for the first time on
appeal simply because the general issue was before the district
court"); United States v. Dietz, 950 F.2d 50, 55 (1st Cir. 1991)
(holding that a criminal defendant, unhappy with a judge's ruling
"yet persuaded that his original arguments lacked merit, cannot
switch horses mid-stream in hopes of locating a swifter steed");
see also United States v. Charles, 213 F.3d 10, 21 (1st Cir. 2000)
(echoing points made by Slade and Dietz).
One last issue, and we are done.
(5)
Statutory Sentencing Enhancement
Because of two prior drug felonies, Guzmán got an
automatic life sentence for his conviction on the drug-conspiracy
count. See 21 U.S.C. § 841(b)(1)(A) (enhancing the mandatory
sentence for a controlled-substance offense to life imprisonment if
the defendant has two or more final convictions for a felony-drug
offense at the time he committed the crime for which he is being
sentenced). Not willing to take that sentence without a fight,
Guzmán argues (as he did below) that the two priors — resulting
from a pair signed plea agreements between him and the government
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— were not separate criminal episodes, as § 841(b)(1)(A) has been
read to require. See, e.g., United States v. De Jesus Mateo, 373
F.3d 70, 74 (1st Cir. 2004); Martínez-Medina, 279 F.3d at 123. In
reviewing the judge's decision, we decide de novo any underlying
legal issues, see United States v. Rivera-Rodríguez, 617 F.3d 581,
608 (1st Cir. 2010), but check any fact findings for clear error,
see United States v. Fink, 499 F.3d 81, 88 (1st Cir. 2007).
At sentencing the judge read each plea agreement's
statement of facts into the record. The first one said:
On or about 1994 to 1996 and October 1997 the
defendant Danny Guzman Correa was the supplier
of heroin for the drug point located at the
Portugues and Belgica Wards in Ponce, owned by
co-defendant Orlando Rosa Rodriguez.
The second one said:
On or about 1996 and October 1997 the
defendant Danny Guzman Correa was one of the
suppliers of heroin, cocaine and marihuana to
co-defendants Orlando Maldonado Orengo, Samuel
Arce Leon and Ignacio Mendoza Diaz who would
later provide the same to co-defendant Ramona
Nieves Santiago for further distribution at
her drug point located at the Rosaly
Residential in Ponce, Puerto Rico.
The judge deemed the two separate criminal incidents. We see no
error. Sure, the pair overlapped a bit in time. But the second
involved different coconspirators, a different locale, and a
different mix of drugs than the first. As we have said, time and
time again, "an ongoing course of criminal conduct such as
narcotics trafficking may involve many such criminal episodes, each
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a discrete occurrence." United States v. Lino, 493 F.3d 41, 43
(1st Cir. 2007) (quoting De Jesus Mateo, 373 F.3d at 74, in turn
quoting Martínez-Medina, 279 F.3d at 123). Plus, "[t]he fact that
all are related, part of a series, or part of a continuous course
of criminal dealing, does not necessarily render them a single
criminal episode." Id. (again quoting De Jesus Mateo, 373 F.3d at
74, in turn quoting Martínez-Medina, 279 F.3d at 123, again). A
contrary holding, we have stressed, "would insulate the very career
criminals the statute is designed to reach — those continuously
engaged in criminal conduct." Martínez-Medina, 279 F.3d at 123
(quoting United States v. Maxey, 989 F.2d 303, 307 (1st Cir.
1993)). So it is here. Consequently, the judge did not err in
treating these convictions as distinct.
In a last-gasp bid to undo his life sentence, Guzmán says
that certain drug-quantity calculations in the presentence report
"are far from reliable." But the jury's decision to hold him
responsible beyond a reasonable doubt for at least 1 kilogram of
heroin was enough to trigger the life sentence, when combined with
his two priors, of course. And that means that we need not take up
this issue. See, e.g., United States v. Rivera-Ruiz, 244 F.3d 263,
272-73 (1st Cir. 2001) (relying on United States v. Tavano, 12 F.3d
301, 307 (1st Cir. 1993)).
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Final Words
For the reasons arrayed above, we conclude that our
defendants were lawfully tried, convicted, and sentenced.
Affirmed.
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