United States v. Soto-Beniquez , 356 F.3d 1 ( 2003 )

United States Court of Appeals
For the First Circuit
Vol. I of II
No. 01-1619
UNITED STATES OF AMERICA,
Appellee,
v.
WILLIAM SOTO-BENÍQUEZ,
Defendant, Appellant.
No. 01-1674
UNITED STATES OF AMERICA,
Appellee,
v.
JUAN SOTO-RAMÍREZ,
Defendant, Appellant.
No. 00-1547
UNITED STATES OF AMERICA,
Appellee,
v.
EDUARDO ALICEA-TORRES,
Defendant, Appellant.
No. 01-1620
UNITED STATES OF AMERICA,
Appellee,
v.
RAMON FERNÁNDEZ-MALAVÉ,
Defendant, Appellant.
No. 00-1464
UNITED STATES OF AMERICA,
Appellee,
v.
CARMELO VEGA-PACHECO,
Defendant, Appellant.
No. 00-1488
UNITED STATES OF AMERICA,
Appellee,
v.
ARMANDO GARCÍA-GARCÍA,
Defendant, Appellant.
No. 00-1470
UNITED STATES OF AMERICA,
Appellee,
v.
JOSE LUIS DE LEÓN MAYSONET,
Defendant, Appellant.
No. 00-1362
UNITED STATES OF AMERICA,
Appellee,
v.
RENE GONZALEZ-AYALA,
Defendant, Appellant.
No. 00-1543
UNITED STATES OF AMERICA,
Appellee,
v.
JUAN ENRIQUE CINTRÓN-CARABALLO,
Defendant, Appellant.
No. 00-1361
UNITED STATES OF AMERICA,
Appellee,
v.
MIGUEL VEGA-COLÓN,
Defendant, Appellant.
No. 00-1456
UNITED STATES OF AMERICA,
Appellee,
v.
MIGUEL VEGA-COSME,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lynch, Circuit Judge.
Marlene Apontes-Cabrera for appellant Soto-Beníquez.
Miriam Ramos-Grateroles for appellant Soto-Ramírez.
Raymond Rivera Esteves for appellant Alicea-Torres.
Luz M. Rios-Rosario for appellant Fernández-Malavé.
Javier Morales-Ramos for appellant Vega-Pacheco.
Rachel Brill for appellant García-García.
Roberto Roldan-Burgos for appellant de León Maysonet.
Victor Miranda-Corrada, for appellant Gonzalez-Ayala.
Rafael Anglada-Lopez for appellant Cintrón-Caraballo.
Marcia G. Shein for appellants Vega-Cosme and Vega-Colón.
Jacabed Rodriguez-Coss and Michelle Morales, Assistant United
States Attorneys, with whom H.S. Garcia, United States Attorney,
and Sonia I. Torres-Pabon, Assistant United States Attorney, were
on brief, for appellee.
November 20, 2003
LYNCH, Circuit Judge. This massive drug conspiracy case
from Puerto Rico involved a six-month trial and resulted in
convictions of the eleven defendants who appeal, eight of whom
received life sentences and three of whom received sentences of
more than twenty years.
The government charged this case as involving one
overarching conspiracy from January 1990 to March 1994 to
distribute drugs at Bitumul (Israel Ward) in Hato Rey, San Juan,
Puerto Rico and to protect that distribution through multiple
murders. Twenty-two defendants were indicted on charges of
conspiracy with intent to distribute more than five kilograms of
cocaine, more than five kilograms of cocaine base, more than five
kilograms of heroin, and more than 100 kilograms of marijuana over
a four-year period, in violation of 21 U.S.C. § 841(a)(1). Two of
these defendants, William Soto-Beníquez and Juan Soto-Ramírez
(a/k/a Pipo), were also charged with violating the Continuing
Criminal Enterprise (CCE) statute, 21 U.S.C. § 848(a) and (b). The
government alleged that Soto-Ramírez headed the conspiracy and that
Soto-Beníquez was the triggerman and principal supplier. The
remaining nine appellants were charged with playing various roles
in distributing drugs or protecting the distribution of drugs.
The original twenty-two defendants were separated into
two groups. The first group of eleven, comprised of those who the
government said were more major players in the conspiracy, were
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tried before a jury from December 28, 1998 to June 25, 1999. The
jury convicted all eleven defendants on all counts with which they
were charged.
The two CCE defendants were sentenced to life
imprisonment on Count One, the CCE count, while Count Two, the
conspiracy count, was dismissed as to them under the rule of
Rutledge v. United States, 517 U.S. 292 (1996). Six other
defendants were also sentenced to life imprisonment: Alicea-
Torres, Fernández-Malavé, Vega-Pacheco, García-García, Vega-Cosme,
and Cintrón-Caraballo. The remaining three -- Vega-Colón,
Gonzalez-Ayala, and de León Maysonet -- were each sentenced to 292
months of imprisonment.
These appeals present three substantial issues: a
multiple conspiracy issue, an issue of improper argument by the
government in its rebuttal closing argument, and a set of Apprendi
sentencing issues. Defendants' key theme on appeal is that the
government overcharged the conspiracy in at least two significant
respects. First, defendants argue that, assuming Soto-Beníquez and
Soto-Ramírez did distribute drugs to points in Bitumul from 1990
until late 1992 or early 1993, the drug points were largely
independent; the fact of a common supplier does not mean the
independent drug point operators agreed to a conspiracy, much less
to the ensuing murders. Second, defendants argue that, by late
1992, both Soto-Beníquez and Soto-Ramírez were out of action: one
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had been imprisoned and the other had left for Florida after
narrowly escaping an attempt on his life. Any conspiracy was by
then concluded, defendants assert, and the government's attempts to
include another year's worth of events, until March 1994, in the
conspiracy were improper. Those events involved a different and
rival drug dealer, Rodríguez-López (a/k/a El Bebo), and took place
partly in another town called Fajardo. The defendants argue that
if their theory as to multiple conspiracies is correct, then there
are significant ramifications that affect the application of the
statute of limitations, the admissibility of testimony
(particularly, evidence of fifteen horrific murders), the refusal
to sever certain defendants, and various sentencing determinations.
The defendants also complain, with justification, about
the government's poor record of pre-trial production of required
materials, as well as its belated springing of requested sentencing
enhancements on certain defendants after the Pre-Sentence
Investigative Report (PSR) had been prepared and the defendants'
objections to it had been served. The trial court was obviously
frustrated with the government's conduct in this case and
threatened three times to dismiss the indictment, but in the end
did not. Post-trial, the court also found the evidence sufficient
to support the convictions.
Over twenty-five issues are raised in these appeals and
are discussed in the sequence of events leading to and through
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trial, with the exception of the multiple conspiracies issue, which
we discuss first.
I.
The facts are stated, for sufficiency of the evidence
purposes, as a reasonable jury could have found them, in the light
most favorable to the verdict.
The government's case turned on the testimony of several
cooperating co-conspirators -- Ramón Cesário-Soto, Victor Negrón-
Maldonado (a/k/a Pitosito), and Luis Torrens-Alicea (a/k/a Pito
Salsa) -- as well as the testimony of police officers and
investigators.
The case centers around six drug points in the Bitumul
Ward of Hato Rey, San Juan, Puerto Rico: (1) Callejón Nueve,
operated by Juan Soto-Ramírez and later by Negrón-Maldonado, (2) La
Pared, also operated by Soto-Ramírez, (3) Street B between La Pared
and Callejón Nueve, operated by Juan Cintrón-Caraballo and supplied
by Soto-Ramírez, (4) El Palo on Laguna Street, operated by Alberto
Santiago-Figueroa, a defendant not participating in this trial, and
supplied by Soto-Ramírez, (5) Cuba Street, which included two
distribution points operated by Soto-Beníquez and Soto-Ramírez, and
(6) Laguna Street, operated by Miguel Vega-Cosme. These points,
which began operation around 1990, dealt in crack cocaine, cocaine,
heroin, and marijuana.
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Soto-Ramírez and Soto-Beníquez were the leaders of the
operation. Soto-Ramírez operated or supplied almost all of the
drug points. His house at Callejón Dos was used by various
defendants to prepare crack and heroin for distribution at the six
drug points and to store weapons to defend and acquire territory
for the drug points. When defendant Miguel Vega-Cosme established
his drug point on Laguna Street with his son, defendant Miguel
Vega-Colón, he first requested permission from Soto-Ramírez.
Soto-Beníquez served as the triggerman and principal
supplier. He ultimately supplied most of the narcotics sold at the
drug points and owned many of the weapons used to kill rival gang
members. Cesário-Soto described him as "one with ranks" in the
drug world.
The remaining defendants were involved in running one or
more of the six drug points. Eduardo Alicea-Torres sold drugs at
the Cuba Street and Callejón Dos drug points from 1990 until at
least 1991, and later began his own drug point. Ramon Fernández-
Malavé packaged crack and cocaine for Soto-Ramírez and cooperating
government witness Negrón-Maldonado in 1992. Carmelo Vega-Pacheco
packaged drugs for Soto-Ramírez and Negrón-Maldonado through 1992,
and sold narcotics at the Cuba Street drug points in 1990 and 1991.
Armando García-García sold narcotics at the Cuba Street drug points
from 1990 to 1991, packaged drugs in 1992, and sold drugs at
Callejón Nueve in 1993. From 1990 to 1992, Jose de León Maysonet
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stored narcotics and weapons for the drug points, and after 1992,
he sold narcotics at Callejón Nueve. Juan Cintrón-Caraballo
operated the Street B drug point throughout the charged conspiracy.
Miguel Vega-Cosme supplied Soto-Ramírez with narcotics and operated
a drug point at Laguna Street from 1990 until 1994 with Soto-
Ramírez's permission. Vega-Cosme also supplied ammunition used in
shootings of rival gang members in 1992 and 1993, and negotiated on
behalf of the group in seeking to resolve its differences with the
rival Chacho gang. Miguel Vega-Colón, the son of Vega-Cosme,
packaged crack cocaine, heroin, and marijuana for his father and
stood as an armed guard at the Callejón Nueve drug point, a point
separate from the one his father ran on Laguna Street.
Several of the defendants were involved in a series of
murders undertaken to defend and acquire territory in Bitumul on
behalf of the conspiracy. The first of these killings occurred on
February 10, 1991. Soto-Ramírez confessed to Negrón-Maldonado that
he, along with two deceased members of the conspiracy, killed
Dagoberto Robles-Rodríguez because he felt threatened by Robles-
Rodríguez. Soto-Ramírez then gained control of Robles-Rodríguez's
heroin point on Cuba Street. Soto-Ramírez pled guilty in a Puerto
Rico court to Robles-Rodríguez's homicide.
Another killing occurred on February 20, 1991. As
government informant Ana Luz Dones-Arroyo was leading undercover
police officer Efrain Hernández de León to the location at Callejón
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Dos where Soto-Ramírez and others stored their weapons, both were
gunned down. Soto-Ramírez shot Dones-Arroyo, and defendant Alicea-
Torres killed the police officer and disposed of the body. A
ballistics expert testified that the same two weapons used in the
murder of Robles-Rodríguez were used to kill Dones-Arroyo and
Hernández de León.
According to Negrón-Maldonado's testimony, several more
murders occurred after these two. On July 20, 1991, Soto-Ramírez
ordered the murder of one of his sellers at the Cuba Street drug
point, Fernando Agosto-Villegas, because two-eighths of a kilogram
of cocaine and a machine gun belonging to Soto-Ramírez were
missing. On May 12, 1992, Soto-Beníquez ordered the murder of
Heriberto Rivera-González in retribution for the death of Jose
Cosme-Sobrado (a/k/a Canito), who had been managing several of
Soto-Ramírez's drug points. Rivera-González was suspected of
participating in the murder of Cosme-Sobrado earlier that day.
Defendant Cintrón-Caraballo, cooperating government witness Negrón-
Maldonado, and two other members of the group kidnapped Rivera-
González and brought him to Callejón Dos, where Negrón-Maldonado
and others killed him. Finally, on November 25, 1992, Negrón-
Maldonado, Soto-Beníquez, and another co-conspirator not on trial
here, Juan Antonio Rodríguez-López, killed Reynaldo Cancel-Robles.
Soto-Beníquez supplied a drug dealer named "Cuelli," who owned a
drug point outside Bitumul in the Vista Hermosa housing project.
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Cancel-Robles was killed because he had ousted "Cuelli" from this
drug point.
On December 20, 1992, gang warfare broke out between the
group and members of a rival gang led by "Chacho." A shootout
occurred between the two gangs, in which Angel Rivera-Pagán, a
member of Soto-Ramírez and Soto-Beníquez's group, was killed.
Eight days later, Negrón-Maldonado, Rodríguez-López, and others
retaliated by murdering Roberto Vasallo-Morninglane, a member of
the Chacho gang.
The gang warfare continued, and several days later, on
January 10, 1993, defendant Vega-Pacheco, government witnesses
Cesário-Soto and Negrón-Maldonado, Rodríguez-López, and others went
to the Quintana housing project and killed five more people, two of
whom were members of the Chacho gang. Vega-Pacheco later pled
guilty in a Puerto Rico court to participating in those five
murders, which came to be known as the Quintana massacre.
Yet another murder took place on March 7, 1993, when
defendant Fernández-Malavé killed Tito Dones-Sanchez. Negrón-
Maldonado and Cesário-Soto testified that Fernández-Malavé opened
fire on a white van after Cintrón-Caraballo and other dealers at
the Callejón Nueve drug point saw it driving nearby and suspected
that those inside were members of the rival El Visco gang. Dones-
Sanchez was later found dead inside a white van of the same
description, which a municipal police officer had witnessed leaving
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the Bitumul area. Fernández-Malavé pled guilty in a Puerto Rico
court to the murder of Dones-Sanchez.
While these murders were occurring in 1992 and 1993, some
changes occurred in the leadership of the group. On January 8,
1992, Soto-Ramírez was incarcerated after pleading guilty in a
Puerto Rico court to various crimes, including attempted murder.
After Soto-Beníquez was shot in an assassination attempt, he ceased
activities in Bitumul in December 1992 and moved to Florida in
1993. While Soto-Ramírez was in prison, Cosme-Sobrado managed
three of Soto-Ramírez's drug points until Cosme-Sobrado was killed
on May 12, 1992. Negrón-Maldonado then took over managing the
points until he left for Philadelphia in June or July 1993. When
managing the points, both Cosme-Sobrado and Negrón-Maldonado took
instructions from Soto-Ramírez through telephone calls from prison
and forwarded the proceeds from the drug points to Soto-Ramírez's
wife.
In June or July 1993, Rodríguez-López, a former member of
the group, returned to Bitumul from Fajardo, where he had fled
after the Quintana massacre. Rodríguez-López had teamed up with
defendant Rene Gonzalez-Ayala and government witness Torrens-Alicea
to steal a two hundred kilogram shipment of cocaine at a beach in
Fajardo. Without consulting anyone in Bitumul, Rodríguez-López
brought the cocaine back to Bitumul and established a "new" drug
point at Callejón Nueve, where Soto-Ramírez's drug point had been
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abandoned. Rodríguez-López employed several members of the
original group in setting up the new drug point, including García-
García and de León Maysonet, but he also brought in individuals
from outside Bitumul, including Gonzalez-Ayala and Torrens-Alicea.
Tension arose between Rodríguez-López and the members of
the original group, in particular Cintrón-Caraballo and Negrón-
Maldonado, over the influx of outsiders working at the new drug
point at Callejón Nueve. Torrens-Alicea testified, however, that
after Negrón-Maldonado returned from Philadelphia, he "ironed out"
these differences with Rodríguez-López over the course of two
meetings in August or September 1993.
Around that time, several defendants again became
involved in violent activities. According to Torrens-Alicea's
testimony, on September 12, 1993, de León Maysonet, Gonzalez-Ayala,
García-García, and three other members of the gang went to Fajardo
to find and kill an individual named Vitito, who had been hired to
kill those responsible for the stolen cocaine in Fajardo. They
never found Vitito. Instead, de León Maysonet, Gonzalez-Ayala, and
another member of the gang were arrested in Fajardo while in
possession of a firearm and eleven decks of heroin; both de León
Maysonet and Gonzalez-Ayala pled guilty in Puerto Rico court to the
charges. On October 11, 1993, Torrens-Alicia, García-García, and
two others killed Oscar Nazario-Rivera in Floral Park, Hato Rey,
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because he was a member of the Chacho gang and had threatened
Rodríguez-López.
II.
On April 10, 1997, a federal grand jury in Puerto Rico
returned a two-count indictment against the eleven appellants,
along with ten other defendants. Count One charged Soto-Beníquez
and Soto-Ramírez with engaging in a continuing criminal enterprise
in violation of 21 U.S.C. § 848(a) and (b). Count Two charged that
from about January 1, 1990, until about March 7, 1994, all twenty-
one defendants conspired to distribute more than five kilograms of
heroin, more than five kilograms of cocaine, more than five
kilograms of cocaine base, and more than 100 kilograms of
marijuana, as prohibited by 21 U.S.C. § 841(a)(1) and 21 U.S.C. §
846.
Rodríguez-López, who became a cooperating witness in the
pre-trial stage of the case, testified to the grand jury. The
government eventually discovered that he had lied before the grand
jury about his presence at a murder. The government informed the
grand jury about the false testimony, and on December 14, 1998,
obtained a superseding indictment. In the superseding indictment,
the government alleged the same charges against the same twenty-one
defendants listed in the original indictment. The government also
added Rodríguez-López as a defendant to the conspiracy charge of
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the superseding indictment, thus raising the total number of
defendants to twenty-two.
On December 28, 1998, the district court divided the
twenty-two defendants into two groups for trial purposes. At that
point, sixteen of the original twenty-two defendants were slated to
go to trial. The district court selected the eleven appellants as
the first group to be tried. After an eighty-six-day trial, the
jury returned a guilty verdict as to all eleven defendants on all
counts for which they were charged.
All eleven defendants appealed. This court consolidated
their appeals.
III.
A. Sufficiency of the Evidence Proving a Single Conspiracy
(García-García, de León Maysonet, Gonzalez-Ayala)
To join a drug conspiracy, a defendant must agree with
others to advance the aim of the conspiracy -- here, to possess
drugs for distribution. United States v. Garcia-Torres, 280 F.3d
1, 4 (1st Cir. 2002). Advancing the aim of the conspiracy can
involve performing ancillary functions such as processing and
cooking drugs, procuring weapons, collecting monies, enforcing
discipline, chastising rivals, accounting, and the like, as long as
such actions are performed with the aim of furthering the
conspiracy. See id. To hold that defendants have "joined" a
conspiracy, there must be sufficient evidence both that they knew
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about the conspiracy and that they knew the ancillary service would
advance that conspiracy. Id.Special issues arise when defendants argue that there
were multiple conspiracies and that their activities were not part
of the conspiracy charged. The initial issue -- and the only issue
we need to reach here -- is whether the government proved the
conspiracy charged in the indictment. This issue, assuming a
properly instructed jury, resolves into a sufficiency-of-evidence
question. United States v. Martinez-Medina, 279 F.3d 105, 113 &
n.2 (1st Cir. 2002); United States v. Wihbey, 75 F.3d 761, 773-74
(1st Cir. 1996). If the evidence is sufficient to support the
jury's finding that all the defendants are guilty of the single
conspiracy charged, then no error has occurred.1
A number of factors come into play in determining whether
the evidence establishes a single conspiracy,2 including (1) the
1
If the evidence instead establishes agreements different
from those charged, the next issue is variance. The reviewing
court asks whether the evidence is sufficient to permit a properly
instructed jury to convict the defendant of a similar related
conspiracy, and if so, whether the variance between the two
conspiracies affected the substantial rights of the defendant.
United States v. Glenn, 828 F.2d 855, 858 (1st Cir. 1987); see also
Kotteakos v. United States, 328 U.S. 750, 774 (1946). We need not
reach this step of the inquiry in this case because we find
sufficient evidence to support the finding of a single conspiracy.
2
In some cases, the indictment itself sets forth
different, often sequential conspiracies in multiple counts. See,
e.g., United States v. David, 940 F.2d 722 (1st Cir. 1991).
Defendants then may argue that there is only one conspiracy, not
two, and that they may not be sentenced for two conspiracies
without violating the double jeopardy clause. Id. at 732. This
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existence of a common purpose, such as selling drugs for profit,
(2) the interdependency of various elements in the plan, such as
whether the success of an individual's own drug transactions
depends on the health and success of the drug trafficking network
that supplies him, and (3) the degree of overlap among the
participants. See Martinez-Medina, 279 F.3d at 114; United States
v. Rivera-Ruiz, 244 F.3d 263, 268 (1st Cir. 2001); United States v.
Portela, 167 F.3d 687, 697 (1st Cir. 1999). We look to the
totality of the evidence to see if it supports a finding of a
single conspiracy. Rivera-Ruiz, 244 F.3d at 268; Portela, 167 F.3d
at 696. The government need not show that each conspirator knew of
or had contact with all other members. Nor need it show that the
conspirators knew all of the details of the conspiracy or
participated in every act in furtherance of the conspiracy. United
States v. Mena-Robles, 4 F.3d 1026, 1032 (1st Cir. 1993). Changes
in the cast of characters do not preclude a finding of a single
overarching conspiracy. United States v. Shea, 211 F.3d 658, 665
(1st Cir. 2000).
The defendants present two main challenges to the
sufficiency of evidence proving a single conspiracy. First, they
argue that there was no conspiracy at all because Soto-Ramírez and
Soto-Beníquez were simply common distributors to a number of
court uses a similar totality of the circumstances, multi-factored
approach in analyzing a claim of that type. Id. at 734.
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diverse and independent drug points. This argument is belied by
the record, which shows a great deal more than common distribution.
The evidence establishes not only that Soto-Ramírez and Soto-
Beníquez were the primary suppliers of the six drug points, but
also that the six drug points shared a common system of defense.
Various defendants stood guard at drug points owned by other co-
conspirators to protect them from rival gang members. For example,
Vega-Colón, who worked at his father's point on Laguna Street, also
stood as an armed guard at Rodríguez-López's point on Callejón
Nueve. Those standing guard at different drug points shared
resources with each other. They communicated among themselves via
walkie-talkies or radios, issuing alerts when the police or
unfamiliar cars from outside Bitumul were in the area. They also
shared rifles purchased and stored by Soto-Beníquez, and ammunition
purchased by Vega-Cosme after taking up collections from each of
the drug points. When the drug points were threatened by rival
gangs, members of the group would join together to guard vulnerable
points from attack. After the shootout with the Chacho gang in
December 1992, Negrón-Maldonado, Fernández-Malavé, and Vega-Pacheco
stood guard together at Callejón Dos. And after the conspiracy was
threatened by members of the El Vizco gang, Soto-Beníquez, Negrón-
Maldonado, Fernández-Malavé, and Cintrón-Caraballo stood guard
together at the Street B drug point. The six drug points also
negotiated as a group in settling disputes with rival gangs. When
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war broke out against the Chacho gang at the end of 1992, Vega-
Cosme met with Chacho to negotiate on behalf of all six drug points
because the war was interfering with drug sales at the Bitumul
points.
Furthermore, members of the group jointly avenged the
deaths of others involved in the operation of the six drug points.
After the death of Cosme-Sobrado, who managed Soto-Ramírez's drug
points while he was in prison, members of the group met at Callejón
Dos. Individuals from different drug points attended the meeting,
including Soto-Beníquez and Alicea-Torres (Cuba Street point),
Vega-Cosme and Vega-Colón (Laguna Street point), Cintrón-Caraballo
(Street B point), and Negrón-Maldonado (Callejón Nueve point). As
a result of the meeting, Negrón-Maldonado and Cintrón-Caraballo
came together to kidnap and murder Rivera-González, whom Soto-
Ramírez's wife suspected of participating in Cosme-Sobrado's
murder.
In addition to this system of common defense, the co-
conspirators had agreements regarding the distribution of narcotics
at the drug points. Vega-Cosme and Negrón-Maldonado met at least
three times to assign colors to the caps of crack capsules sold at
different points in the Bitumul Ward so that their origin could be
identified and competition between the points avoided. Vega-Cosme
also asked Soto-Ramírez for permission before setting up his drug
point with his son Vega-Colón on Laguna Street.
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The evidence supports the jury's finding that each of the
defendants joined in this common enterprise. First, the evidence
establishes that each defendant joined in the common defense of the
points. Seven of the defendants -- Soto-Ramírez, Soto-Beníquez,
Alicea-Torres, Vega-Pacheco, Fernández-Malavé, García-García, and
Cintrón-Caraballo -- ordered or participated in murders to protect
the drug points. Soto-Ramírez and Alicea-Torres killed a police
officer and a government informant who were about to discover the
group's stash of weapons used to protect the drug points. Soto-
Ramírez ordered the murder of one of his drug dealers when some
cocaine and a machine gun disappeared, sending the message that
those who broke ranks and stole from the group would be punished.
See United States v. Rodriguez, 162 F.3d 135, 143 (1st Cir. 1998)
(finding the beating of a member of the conspiracy suspected of
being an informant to be in furtherance of the conspiracy because
it served to "maintain[] discipline in [the conspiracy's] ranks").
On Soto-Beníquez's orders, Cintrón-Caraballo kidnapped Rivera-
González and brought him to Bitumul to be killed to avenge the
death of Cosme-Sobrado. Vega-Pacheco participated in the Quintana
massacre to avenge the death of Rivera-Pagán, a member of the
group. While defending the group's territory at Callejón Nueve,
Fernández-Malavé killed Tito Dones-Sanchez by opening fire on a van
suspected of containing rival gang members. García-García killed
a member of the rival Chacho gang who threatened Rodríguez-López.
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Although not direct participants in those murders, the
remaining four defendants also contributed to the common defense of
the drug points. We put aside, for the moment, the issue of
whether the group's post-1993 activities involved a separate
conspiracy. De León Maysonet and Gonzalez-Ayala went to Fajardo
for the purpose of killing someone who threatened Rodríguez-López.
Vega-Cosme supplied ammunition for shootings of rival gang members
in 1992 and 1993 and negotiated on behalf of the group with the
Chacho gang. Vega-Colón stood as an armed guard at Rodríguez-
López's point on Callejón Nueve.
Second, in addition to evidence that each defendant
participated in the system of common defense, there is evidence
that each defendant participated in the common enterprise of
selling drugs through the six points. We again put aside for the
moment whether the group's post-1993 activities involved a separate
conspiracy. Soto-Ramírez controlled several drug points, and his
house was used to prepare and package crack and heroin for
distribution at several of the drug points. Soto-Beníquez was the
primary supplier of cocaine and crack to the six drug points.
Alicea-Torres and Vega-Pacheco sold narcotics for points owned by
Soto-Beníquez and Soto-Ramírez from 1990 to 1991. Fernández-Malavé
packaged crack cocaine, cocaine, and heroin from 1992 to 1993, and
packaged cocaine specifically for Soto-Ramírez from May 1992 to
December 1992. García-García sold narcotics for Soto-Beníquez and
-23-
Soto-Ramírez from 1990 to 1991, packaged narcotics in 1992,
returned to selling narcotics for Rodríguez-López in 1993.
Cintrón-Caraballo supervised a drug point for crack cocaine and
distributed cocaine and crack cocaine for Soto-Ramírez throughout
the duration of the conspiracy. Gonzalez-Ayala helped Rodríguez-
López steal 200 kilograms of cocaine for the conspiracy in 1993 and
subsequently packaged and distributed it. De Leon-Maysonet
packaged and stored narcotics for the conspiracy from 1990 to 1992
and then sold narcotics at the Callejón Nueve point in 1993.
Vega-Cosme supplied ammunition and narcotics to Soto-Ramírez and
distributed heroin at a drug point with Soto-Ramírez's permission
throughout the duration of the conspiracy. Vega-Colón,
Vega-Cosme's son, packaged crack, heroin, and marijuana for his
father's point.
The second argument challenging the sufficiency of
evidence proving a single conspiracy is presented by defendants
García-García, de León Maysonet and Gonzalez-Ayala. They argue
that the government overreached in counting as part of one massive
conspiracy a separate, later, and antagonistic drug-selling group.
The three defendants argue that they cannot be guilty of the
continuing conspiracy when they were in competition with the
original conspiracy and the original conspirators were out to kill
the head of their drug group. They concede that the evidence does
show their involvement with separate drug points. But the evidence
-24-
does not, they contend, show that they participated in an overall
drug conspiracy headed by Soto-Beníquez and Soto-Ramírez. They
argue that this conspiracy effectively ended by the summer of 1993.
In January 1992, Soto-Ramírez was arrested and incarcerated. And
William Soto-Beníquez, after escaping death in a shootout, ceased
activities in Bitumul in December 1992 and moved to Florida in
1993. Cosme-Sobrado, who succeeded Soto-Ramírez, was killed on May
12, 1992, and Victor Negrón-Maldonado left for Philadelphia in June
or July 1993.
The three defendants argue that later events centered
around a separate conspiracy, led by Rodríguez-López. Rodríguez-
López, who had originally been part of the conspiracy headed by
Soto-Ramírez and Soto-Beníquez, left Bitumul for Fajardo in the
summer of 1993 to avoid being arrested for his involvement in the
Quintana massacre. While in Fajardo, he stole a 200 kilogram
shipment of cocaine. Upon his return to San Juan in June or July
of 1993, and without consulting anyone in Bitumul, Rodríguez-López
reestablished a drug point at Callejón Nueve with the stolen
cocaine, employing outsiders from Fajardo to operate the point.
Negrón-Maldonado testified that while he was in Philadelphia, he
had telephone conversations with people in Bitumul, including
Cintrón-Caraballo, who wanted to kill Rodríguez-López for bringing
outsiders into the Bitumul operation; Torrens-Alicea confirmed that
-25-
some members of the original group "were out to kill" Rodríguez-
López.
Each of the three defendants argues that the multiple
conspiracies theory affects his liability in a different way.
Gonzalez-Ayala contends that, at most, he was a member only of a
later uncharged conspiracy headed by Rodríguez-López; he did not
join any conspiracy at all until the summer of 1993, when he helped
Rodríguez-López steal the shipment of cocaine and returned with
Rodríguez-López to set up the drug point at Callejón Nueve.
Gonzalez-Ayala thus contends that no evidence ties him to the other
Bitumul drug points or the earlier murders connected with those
drug points.
De León Maysonet contends that he was prejudiced by the
government's single conspiracy theory because all of his
participation in the original conspiracy occurred while he was a
minor. He was nonetheless held liable as an adult because he
supposedly ratified the conspiracy by continuing to participate
after he turned eighteen on January 12, 1992. United States v.
Welch, 15 F.3d 1202, 1211-12 (1st Cir. 1993). He contends,
however, that the only acts of ratification presented by the
government occurred after the original conspiracy had ended and
Rodríguez-López had taken over.
García-García argues that the government's presentation
of a single overarching conspiracy, rather than multiple
-26-
conspiracies, subjected him to evidence of murders in which he did
not participate. García-García contends that the only murder in
which he allegedly participated -- that of Oscar Nazario-Rivera --
occurred after the original conspiracy ended and was not drug-
related.
The jury was instructed on multiple conspiracies, at the
request of the defense. The district court informed the jury that
it must acquit "[e]ven if the evidence in the case shows that
defendants were a member of some conspiracy, and not the single
conspiracy charged in the indictment." As noted earlier, where the
jury was properly instructed and found the defendants guilty of
conspiracy, its verdict is reviewable only for sufficiency of
evidence. David, 940 F.2d at 732.
On the evidence, a jury could have concluded that there
was a later, rival conspiracy, but it was not compelled to do so.
There is sufficient evidence to support the jury's verdict of
guilt, as well as its implicit finding that a single conspiracy
existed that extended through the summer of 1993. The jury could
plausibly have found that Rodríguez-López was a member of the
original conspiracy, that the reestablishment of the Callejón Nueve
drug point in the small neighborhood of Bitumul was part of an
agreed-upon general operation to sell drugs and to control the drug
trade in Bitumul, that the tension among the members of the
overarching group did not destroy the overall agreement, that those
-27-
tensions were worked out, and that the cooperation worked to
everyone's benefit and continued to provide a system of common
defense.
Government informant Luis Torrens-Alicea testified that
differences between Rodríguez-López and the original Bitumul
conspiracy were "ironed out" during two meetings involving
Rodríguez-López, Negrón-Maldonado, and Cintrón-Caraballo at the El
Trebol housing project in August or September of 1993.3 Other
evidence corroborates this account. Members of the original group
continued to transact and meet with Rodríguez-López after his
return. Negrón-Maldonado bought heroin on credit from Rodríguez-
López on at least one occasion, and "cooked" crack cocaine for
Rodríguez-López. "Peter," who managed Soto-Ramírez's point,
Alicea-Torres, and Vega-Cosme all distributed kilograms of cocaine
for Rodríguez-López after his return. On September 12, 1993,
García-García, de León Maysonet, and two other members of the
original Bitumul group joined together with newcomers Gonzalez-
Ayala and Torrens-Alicea to find and kill Vitito, who had been
hired to kill those who had stolen the 200 kilogram shipment of
cocaine in Fajardo. Furthermore, after Rodríguez-López's return,
3
Torrens-Alicea also testified that, at this meeting,
Cintrón-Caraballo and Negrón-Maldonado informed Rodríguez-López
that they now sought to kill Soto-Ramírez and his associates.
Because Soto-Ramírez and Soto-Beníquez had already left Bitumul at
this point, however, these new tensions did not prevent the drug
points from working together, as described infra.
-28-
Soto-Ramírez, Vega-Cosme, Cintrón-Caraballo, and Negrón-Maldonado
all continued to operate the same drug points, and García-García,
de León Maysonet, Alicea-Torres, Fernández-Malavé, and two other
members of the original conspiracy continued to work at those
points.
Moreover, contrary to defendants' assertions that the
drug points operated independently after the summer of 1993, the
evidence permitted the conclusion that they continued to work
together. Negrón-Maldonado's three meetings with Vega-Cosme to
coordinate the cap colors for crack capsules occurred between
September and November of 1993, three to five months after
Rodríguez-López's return. In addition, members of the conspiracy
acted jointly to defend each other from threats. Vega-Cosme
continued to purchase ammunition for the collective defense of the
drug points. On September 12, 1993, as mentioned earlier, members
of the original Bitumul group joined with the newcomers to find and
kill Vitito, who had been hired to kill Rodríguez-López and others.
On October 11, 1993, Torrens-Alicea, García-García, and two other
individuals murdered Oscar Nazario-Rivera, a member of the rival
Chacho gang who had threatened Rodríguez-López. Members of the
conspiracy also continued to warn one another about possible
threats. In 1994, after Vega-Cosme's drug point was shot at by
individuals from San Jose, he went to Cintrón-Caraballo and Negrón-
Maldonado to warn them of the danger. And on several occasions in
-29-
early 1994, after Alberto Santiago-Figueroa, who ran the El Palo
point on Laguna Street, saw people armed with rifles driving by his
point, he sent a messenger to inform Negrón-Maldonado of what he
had seen.
Because the record supports the jury's finding of a
single conspiracy, the three defendants are liable for their
participation. Although Gonzalez-Ayala may have joined the
conspiracy late, as long as he did so knowingly, he is liable for
the conspiracy itself and earlier acts in furtherance of the
conspiracy. David, 940 F.2d at 735. A jury could easily have
found that he joined knowingly. Gonzalez-Ayala was present at the
meeting of Negrón-Maldonado, Cintrón-Caraballo, and Rodríguez-López
in August or September of 1993, in which they worked out their
differences. He also participated in the trip to Fajardo to kill
Vitito. Mere association with conspirators does not establish a
knowing intent to join a conspiracy. United States v. Gomez-Pabon,
911 F.2d 847, 853 (1st Cir. 1990). But, in this situation, the
jury could have reasonably inferred from Gonzalez-Ayala's presence
at negotiations between major players in the gang and from his
participation in the hunt for Vitito that he knew or learned of
"the essential nature of the plan" to distribute narcotics in
Bitumul and the violent tactics used to carry out that
distribution. Mena-Robles, 4 F.3d at 1032 (quoting United States
v. O'Campo, 973 F.2d 1015, 1019 (1st Cir. 1992)).
-30-
Similarly, although de León Maysonet joined the
conspiracy as a minor, he ratified his participation after he had
turned eighteen. In 1993, he stood guard at the Callejón Nueve
point, packaged and stored narcotics for the point, and
participated in the unsuccessful mission to Fajardo in 1993 to find
and kill Vitito.
García-García actively participated in the conspiracy
from the beginning, selling drugs at the Cuba Street point from
1990 to 1991 and packaging narcotics for drug points from 1992 to
1993.
We reject the defendants' multiple conspiracies
arguments.
B. Pre-Trial
1. Grand Jury Misconduct
(Soto-Beníquez, Soto-Ramírez, Fernández-Malavé)4
One event concerning a grand jury witness underlies a
number of issues presented by the defense.
The government used a then-cooperating conspirator,
Rodríguez-López, as a grand jury witness in obtaining the original
indictment on April 10, 1997. In July of 1998, the prosecution
first learned that it might have been misled by Rodríguez-López.
4
A number of defendants present no argument on issues but
purport to adopt arguments presented by other defendants on those
issues. In no instance in which that is done is the argument
successful. When an issue is listed as raised by a defendant, the
defendant listed is the one who argued the issue.
-31-
Negrón-Maldonado, who had just started cooperating with federal
authorities, informed the prosecution that Rodríguez-López was not,
as he had told the prosecution, present at Rivera-González's
murder. When confronted with this information, Rodríguez-López
admitted that he had lied to FBI investigators about being present
at the murder but insisted that he had not fabricated any of his
testimony before the grand jury, which did not address the Rivera-
González murder.
Rather than disclose this information immediately, the
prosecution waited and investigated. In November 1998, the
government learned from a second cooperating defendant that
Rodríguez-López also might have lied about his presence at several
other murders, including at least one murder about which he had
testified to the grand jury, that of Rivera-Pagán. On November 18,
the government notified defense counsel of this inconsistency. It
also insisted that Rodríguez-López, who still denied lying to the
grand jury, take a polygraph test. When he failed the test on
December 1, Rodríguez-López admitted that he had indeed lied during
the grand jury proceedings and that he had not been present at
Rivera-Pagán's murder. On December 14, the prosecution obtained a
superseding indictment from the grand jury that changed Rodríguez-
López from a star government witness to a defendant. The
superseding indictment, which was returned 15 days before trial
started, was based on the testimony of a federal agent who
-32-
presented the government's evidence that Rodríguez-López had lied
to the FBI. Rodríguez-López did not testify at trial.
Several defendants object that their convictions were
irreparably tainted by Rodríguez-López's perjury before the grand
jury. The trial court rejected this claim, holding that the fact
that the superseding indictment was obtained and the perjured
testimony was not presented at trial cured any problem. That
ruling was correct.
The unknowing presentation of perjured testimony before
the grand jury was harmless and does not warrant any remedial
action. "[A]s a general matter, a district court may not dismiss
an indictment for errors in grand jury proceedings unless such
errors prejudiced the defendants." Bank of Nova Scotia v. United
States, 487 U.S. 250, 254 (1988); see also United States v.
Flores-Rivera, 56 F.3d 319, 328 (1st Cir. 1995). Here, the
district court specifically found that "[d]efendants can hardly
show prejudice when the matter was later explained to the Grand
Jury and the perjured testimony has not been used in trial." We
review this conclusion only for an abuse of discretion. See United
States v. Maceo, 873 F.2d 1, 3 (1st Cir.), cert. denied, 493 U.S.
840 (1989). No such abuse was present here.
First, the grand jury returned a superseding indictment
after learning of the perjured testimony, thereby demonstrating
-33-
that sufficient evidence existed to indict the defendants even
absent the testimony of Rodríguez-López.
Of even greater import, a petit jury subsequently found
the defendants guilty beyond a reasonable doubt of the charges
alleged in the indictment. Such a finding "demonstrates a fortiori
that there was probable cause to charge the defendants with the
offenses for which they were convicted." United States v.
Lopez-Lopez, 282 F.3d 1, 9 (1st Cir. 2002) (quoting United States
v. Mechanik, 475 U.S. 66, 67 (1986)). As such, "[a]ll but the most
serious errors before the grand jury are rendered harmless by a
conviction at trial." United States v. Reyes-Echevarria, No. 02-
1653, 2003 U.S. App. LEXIS 19614, at *6 (1st Cir. Sept. 22, 2003).
"Only a defect so fundamental that it causes the grand jury no
longer to be a grand jury, or the indictment no longer to be an
indictment" is sufficient to invalidate a subsequent conviction.
Id. (quoting Midland Asphalt Corp. v. United States, 489 U.S. 794,
802 (1989)). The government's unknowing presentation of perjured
testimony before the grand jury is not a defect of that magnitude
on these facts.
2. Indictment
a) Pre-Indictment Delay
(Soto-Beníquez, Soto-Ramírez)
Soto-Beníquez and Soto-Ramírez argue that the indictment
should have been dismissed because the government delayed in
obtaining it. As discussed infra, the indictment complied with the
-34-
statute of limitations, which is the primary safeguard against pre-
indictment delay. When the statute of limitations has been met, a
defendant seeking reversal of his conviction based on pre-
indictment delay "bears the heavy burden of showing not only that
the pre-indictment delay caused him actual, substantial prejudice,
but also that the prosecution orchestrated the delay to gain a
tactical advantage over him." United States v. Stokes, 124 F.3d
39, 46-47 (1st Cir. 1997); see also United States v. Marion, 404
U.S. 307, 324 (1971). Soto-Beníquez and Soto-Ramírez have not
attempted to make such a showing.
b) Constitutionality of CCE Indictment
(Soto-Beníquez, Soto-Ramírez)
i. Failure to Charge Three Predicate CCE Acts
Soto-Beníquez and Soto-Ramírez argue that their CCE
convictions should be reversed because the indictment did not set
forth as elements of the offense the three predicate offenses
required for the crime of CCE, 21 U.S.C. § 848. As described in
our case law, the elements of a CCE crime are (1) the defendant
committed a felony violation of the federal narcotics laws, (2) the
violation was part of a continuing series of violations, (3) the
series of offenses occurred in concert with five or more persons,
(4) the defendant was an organizer, supervisor, or manager, and (5)
the defendant obtained substantial income or resources from the
series of violations. United States v. Rouleau, 894 F.2d 13, 14
-35-
(1st Cir. 1990). To show a continuing series of violations, three
or more predicate drug offenses must be demonstrated. Id.Defendants argue that their due process rights were
violated because they were deprived of adequate notice of the
predicate offenses underlying the CCE charge. Where the CCE count
of an indictment does not list the specific predicate offenses but
those offenses are alleged in other counts of the indictment,
courts have generally held that defendants have received actual
notice of the charges and no reversible error has occurred. United
States v. Staggs, 881 F.2d 1527, 1530-31 (10th Cir. 1989) (finding
indictment adequate where no underlying violations were specified
in the CCE count but at least three underlying violations were
listed elsewhere in the indictment); United States v. Moya-Gomez,
860 F.2d 706, 752 (7th Cir. 1988); United States v. Becton, 751
F.2d 250, 256-57 (8th Cir. 1984). We think it preferable for
predicate offenses to be alleged in the CCE count. But, at least
where the CCE count incorporates by reference predicate offenses
charged elsewhere in the indictment, failure to list predicate
offenses in the CCE count itself is not reversible error because
the defendant has been provided fair notice. Moya-Gomez, 860 F.2d
at 752; Becton, 751 F.2d at 256-57.
Here, while the CCE count did not explicitly set forth
three CCE predicate offenses, it incorporated Count Two, the
conspiracy count. Count Two did provide such notice. Count Two
-36-
states that "at divers times" between January 1, 1990 and March 7,
1994, the defendants distributed and possessed with intent to
distribute heroin, cocaine, crack cocaine, and marijuana. It
further states that the defendants "would purchase multi-kilogram
quantities of heroin, cocaine and marijuana at wholesale prices, .
. . would cut, divide, and package [the drugs] in small packages
for subsequent sale at drug points, [and] . . . would sell packaged
[drugs] in small quantities to customers at drug points." That
count also alleges specifically that Soto-Ramírez and Soto-Beníquez
supervised the "supply [of] sellers with the drugs to be sold . . .
and [the sale of] narcotics at drug point," and that they would
"personally deliver packaged narcotics to [their] runners and
sellers."
Defendants argue (1) that the acts described in Count Two
are insufficient to provide notice because they establish only one
predicate offense, namely, the conspiracy to distribute narcotics,5
and (2) that the acts are insufficiently described. Both
assertions are incorrect. As to the defendants' first contention,
each act of distribution described in the indictment constitutes a
separate predicate offense. See, e.g., United States v. Escobar-de
5
If the conspiracy is used to establish the continuing
series of violations, then defendants may be punished on the CCE
charge but not the conspiracy charge. Rutledge v. United States,
517 U.S. 292, 307 (1996). Because the court eventually dismissed
the conspiracy charge, Count Two, against the two CCE defendants,
this is not an issue here.
-37-
Jesús, 187 F.3d 148, 160 n.6 (1st Cir. 1999) (treating two
different incidents of possession with the intent to distribute as
two separate predicate offenses). Multiple acts of distribution,
certainly three or more, are alleged. As to their second
contention, the time period and acts are alleged in sufficient
detail to provide adequate notice.
Defendants then argue that the indictment failed to
specify either the amount of drugs distributed or the amount of
"substantial income" received by the defendants, thus depriving
them of notice as to whether they were charged under 21 U.S.C. §
848(a) or (b). Section 848(a) carries a sentence of thirty years
to life, whereas § 848(b) carries a mandatory life sentence. We
reject defendants' argument. Defendants, merely by reading the
indictment, were on notice of the possibility of a life sentence.
Section 848(b) requires life imprisonment for the "principal . . .
leaders" of the continuing criminal enterprise if their violation
of the drug laws involved more than 300 times the quantity
described in 21 U.S.C. § 841(b)(1)(B). The indictment identified
Soto-Ramírez and Soto-Beníquez as the two "leader[s] . . . of the
drug-trafficking organization described in Counts One and Two." It
also identified them as conspiring to distribute, inter alia, more
than five kilograms of cocaine base, which is more than 300 times
the five grams of cocaine base described in § 841(b)(1)(B).
-38-
Defendants also argue that in the indictment the
predicate offenses for the CCE charge were based on the conspiracy
count, but at trial, the government used evidence of uncharged
narcotics offenses to establish the predicate offenses. Thus,
defendants argue, although the CCE charge remained the same, the
facts used to prove the series element of the charge were different
from those set forth in the indictment.
Defendants frame this argument as a claim of constructive
amendment, but it is actually a claim of variance. "A constructive
amendment occurs when the charging terms of the indictment are
altered, either literally or in effect, by prosecution or court
after the grand jury has last passed upon them. A variance occurs
when the charging terms remain unchanged but when the facts proved
at trial are different from those alleged in the indictment."
United States v. Fisher, 3 F.3d 456, 462 (1st Cir. 1993) (citations
and quotation marks omitted). Convictions may be reversed based on
variance only upon a showing of prejudice to the defendant's
substantial rights -- that is, when lack of notice regarding the
charges deprives the defendant of his ability to prepare an
effective defense and to avoid surprise at trial. Id. Here,
defendants were not prejudiced. The indictment charged them with
violations of narcotics laws from January 1990 to March 1994; the
use of narcotics offenses in that time period should have been no
surprise to them.
-39-
ii. CCE Prosecution As Contrary to Congressional
Intent
Soto-Beníquez and Soto-Ramírez next argue that their
prosecution under the CCE statute is contrary to legislative
intent. That intent, they contend, is to enhance punishment for
large-scale drug kingpins. Defendants argue that the evidence did
not show them to be kingpins because they lived modestly. The
government argues that we should not entertain this argument
because the crime charged is within the statutory language and that
ends the inquiry. If the crime charged is literally within the
words of the statute, there is not usually occasion to inquire into
intent. See United States v. Rutherford, 442 U.S. 544, 551 (1979).
That is the case here.
To the extent that defendants' argument challenges the
sufficiency of evidence as to the substantial income element of the
CCE charge, it fails. Soto-Beníquez sold at least $10,000 worth of
cocaine per week to Negrón-Maldonado. Soto-Ramírez owned three
drug points for at least three years, each of which yielded
approximately $5,000 per week from crack cocaine alone. These
figures provide sufficient evidence to support the jury's finding
of substantial income.
c) Statute of Limitations
(Soto-Beníquez, Soto-Ramírez)
Soto-Beníquez and Soto-Ramírez argue that their
prosecution was untimely under the statute of limitations. A CCE
-40-
offense consists of a series of three or more underlying predicate
offenses. A CCE charge is within the statute of limitations if the
government demonstrates that at least one predicate act was
committed in the five years prior to the indictment. See, e.g.,
United States v. Baker, 10 F.3d 1374, 1410 (9th Cir. 1993). In
this case, the indictment is dated April 11, 1997. Thus, the
prosecution had to prove that one predicate act was committed on or
after April 12, 1992.
The parties dispute which acts count as predicate
offenses for purposes of determining whether the statute of
limitations has run. Soto-Beníquez and Soto-Ramírez argue, by
analogy to the RICO statute, that only the acts of the parties
charged with the CCE count, and not those of their co-conspirators,
may be considered. See United States v. Torres-Lopez, 851 F.2d
520, 524-25 (1st Cir. 1988) (applying this rule to substantive RICO
charges). The government argues that it need only demonstrate that
acts in furtherance of the conspiracy occurred within the five-year
limitations period and that the defendants failed to withdraw from
the conspiracy.
We need not resolve this issue because the evidence,
viewed in the light most favorable to the prosecution, is
sufficient to support the conclusion that both Soto-Ramírez and
Soto-Beníquez themselves committed predicate offenses after April
12, 1992. Although Soto-Ramírez was incarcerated on January 8,
-41-
1992, the government presented evidence that he still controlled
and managed the drug points at La Pared, Callejón Nueve, and Cuba
Street. While he was in prison, he employed Cosme-Sobrado to
manage the points until May 1992. After Cosme-Sobrado was killed,
Soto-Ramírez appointed "Manolín" and "Peter" as Cosme-Sobrado's
successors. Soto-Ramírez gave instructions on the operation of the
points by telephone, and the proceeds from the points were given to
Soto-Ramírez's wife. This evidence of Soto-Ramírez's own acts
within the five-year period is sufficient to establish the
timeliness of his indictment.
Soto-Beníquez argues that he ceased all activities
related to the conspiracy in December 1992 when he moved to
Florida. Assuming arguendo that this statement is true, the
December 1992 date does not help Soto-Beníquez. The operative date
for limitations purposes is April 12, 1992, some eight months
earlier. The record supports the conclusion that Soto-Beníquez
engaged in predicate offenses after that date. In January 1993,
for example, Soto-Beníquez provided transportation, firearms, and
a hide-out for members of the Bitumul gang after the Quintana
massacre, in which the gang murdered five people in retaliation for
the death of fellow gang member Rivera-Pagán. Soto-Beníquez's
indictment was not barred by the statute of limitations.
-42-
3. Abuse of Prosecutorial Discretion
(Fernández-Malavé)
Fernández-Malavé makes a generalized protest that the
federal prosecution should never have been brought because he (and
many of the other defendants) had already pled guilty to related
state charges. This argument does not present an issue that is
reviewable by this court. Whatever the contours of permissible
attacks on the exercise of prosecutorial discretion, this claim
lies outside of those contours. See United States v. Stokes, 124
F.3d 39, 45 (1st Cir. 1997) ("[T]he federal government [has] a
perfect right to take a hard look at [a] case and to determine
whether society's interests call for the unusual step of
instituting a federal prosecution notwithstanding the prior
commencement of a state prosecution for substantially the same
conduct.").
4. Pre-Trial Denial of Motions for Severance
(Gonzalez-Ayala, de León Maysonet)
Gonzalez-Ayala and de León Maysonet appeal from the
district court's denial of their motions to be severed and tried
with the second group of defendants. On December 28, 1998, the day
on which jury selection began, the district court decided to split
the sixteen defendants who planned to go to trial into two groups.
The government proposed that the first ten defendants on the
indictment become the first group to go to trial. The government's
reasoning was that this division would allow the prosecution to
-43-
"try[] the senior conspirators together, that is the principal
leaders, and the organizers and supervisors of the conspiracy" and
to "try[] the conspirators who planned and carried [out] numerous
acts of violence within the conspiracy together." The district
court initially accepted this proposal but then severed one
defendant to allow for a mental competency hearing, another
defendant because he was on bond, and yet another defendant because
his counsel withdrew from the case on that day. Two other
defendants were severed because they could not yet proceed to
trial; one was still a fugitive and the other, Rodríguez-López, had
been indicted only two weeks earlier. Having severed five
defendants, the district court was left with the eleven appellants
and decided to proceed to trial with all eleven.
Gonzalez-Ayala and de León Maysonet contend that the
district court erred in refusing to sever their cases. Rule 14,
Fed. R. Crim. P., allows a trial court to sever defendants when
joinder would prejudice them. Gonzalez-Ayala and de León Maysonet
argue that the joinder prejudiced them by forcing them to go to
trial with more senior conspirators. They contend that the
complexity of the case and the markedly different degrees of
culpability between them and their co-defendants, many of whom
committed murders or held leadership positions in the conspiracy,
created the potential for jury confusion. Moreover, they argue
that they were prejudiced by the presentation of spillover evidence
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regarding fifteen murders committed by their co-defendants, in
which they did not participate.
We review the district court's denial of defendants'
motions for severance under Fed. R. Crim. P. 14 for abuse of
discretion. United States v. Lane, 474 U.S. 438, 449 n.12 (1986);
United States v. DeLuca, 137 F.3d 24, 36 (1st Cir. 1998). To
demonstrate abuse of discretion, defendants must show that joinder
deprived them of a fair trial, resulting in a miscarriage of
justice. United States v. Baltas, 236 F.3d 27, 33 (1st Cir. 2001).
Because the general rule is that those indicted together are tried
together to prevent inconsistent verdicts and to conserve judicial
and prosecutorial resources, severance is particularly difficult to
obtain where, as here, multiple defendants share a single
indictment. United States v. O'Bryant, 998 F.2d 21, 25 (1st Cir.
1993).
Defendants have not made such a strong showing of
prejudice. As to the murder evidence, defendants cannot complain
of an improper spillover effect where evidence is independently
admissible against them. United States v. Brandon, 17 F.3d 409,
440 (1st Cir. 1994); O'Bryant, 998 F.2d at 26. Because conspiracy
cases often involve evidence that is admissible against all members
of the conspiracy, "in the context of conspiracy, severance will
rarely, if ever, be required." DeLuca, 137 F.3d at 36 (quoting
Flores-Rivera, 56 F.3d at 325 (internal quotation marks and
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citations omitted)). Here, the murder evidence would likely be
admissible against Gonzalez-Ayala and de León Maysonet even in a
separate trial in order to demonstrate the operation and
development of the conspiracy's system of common defense.
As to the complexity of the case and the potential for
jury confusion, there is no indication that the jury was unable to
distinguish the evidence and acts relating to each defendant. The
court instructed the jury that each defendant must be judged
separately based on the evidence admissible against him.
Defendants are not entitled to severance solely on the basis that
their co-defendants were more culpable. See Flores-Rivera, 56 F.3d
at 325; Brandon, 17 F.3d at 440-41.
5. Pre-Trial Discovery
(Soto-Beníquez, Soto-Ramírez, Fernández-Malavé, Alicea-
Torres)
Defendants make both a generalized attack on the
government's habitual dilatoriness in turning over discovery
material and more specific attacks. Here, we address only the
alleged lateness of the prosecution's compliance with discovery;
the Brady and Giglio claims are dealt with later, as are the
specific attacks.
Several of the defendants allege that the prosecution
consistently failed to respond to discovery requests and orders in
a timely fashion, and then "smother[ed] [them] with an avalanche of
documents during trial." The defendants are correct that the
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prosecution did, on several occasions, fail to comply with
discovery timetables set by the district court. These discovery
violations do not warrant reversing the defendants' convictions.
We have long recognized that "the decision as to whether
discovery sanctions are warranted and the choice of what sanctions
should be imposed are matters within the sound discretion of the
trial court." Gannett v. Carp (In re Carp), 340 F.3d 15, 23 (1st
Cir. 2003); Media Duplication Servs., Ltd. v. HDG Software, Inc.,
928 F.2d 1228, 1238 (1st Cir. 1991). As such, review of a district
court's use or non-use of discovery sanctions is only for abuse of
discretion. See United States v. One 1987 BMW 325, 985 F.2d 655,
657 (1st Cir. 1993). An abuse of discretion "occurs when a
material factor deserving significant weight is ignored, when an
improper factor is relied upon, or when all proper and no improper
factors are assessed, but the court makes a serious mistake in
weighing them." Indep. Oil & Chem. Workers, Inc. v. Procter &
Gamble Mfg. Co., 864 F.2d 927, 929 (1st Cir. 1988).
The district court did not abuse its discretion in
refusing to dismiss the indictment due to the prosecution's
discovery violations. Rather than resort to the drastic remedy of
dismissal, the district court wisely addressed the prosecution's
failures to comply with discovery deadlines on a situation-by-
situation basis in order to prevent or remedy any prejudice that
those violations may have had on the defendants. Cf. United States
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v. Santana, 6 F.3d 1, 11 (1st Cir. 1993) (suggesting that a court
should not dismiss an indictment when prosecutorial misconduct is
"redressable through the utilization of less drastic disciplinary
tools"). For instance, in response to the government's failure to
comply with one discovery order, the district court chastised the
prosecution and ordered the government to provide the defendants
with information not normally covered by Rule 16 of the Federal
Rules of Criminal Procedure. Addressing another violation, the
district court set an accelerated discovery timetable and warned
the prosecution that "[i]f the government fails to comply, the
court will dismiss the indictment." In a third instance, the court
refused to admit into evidence a photograph that the prosecution
had not adequately disclosed to the defense. Each of these
responses to the government's discovery violations helped mitigate
any prejudice to the defendants that might otherwise have resulted
from the government's apparent inability to meet discovery
deadlines. Given this solution, the district court's continual
denials of the defendants' motions to dismiss the indictment due to
the government's discovery violations were certainly not abuses of
discretion. That conclusion is not a condonation of the
government's behavior; it is just a recognition that reversal of
the conviction is not warranted, given the district court's
imposition of other sanctions.
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C. Alleged Trial Errors
1. Evidentiary Rulings
a) Admission of Murder Evidence As to CCE Defendants
(Soto-Beníquez, Soto-Ramírez)
Soto-Beníquez and Soto-Ramírez object that they were
unfairly prejudiced by the admission of evidence concerning the
murders of Jose Cosme-Sobrado, Angel Rivera-Pagán, and Miguel Angel
Millan-Soto (a/k/a Guelo). The district court found that the three
murders were not part of the conspiracy, but admitted the evidence
over the defendants' Rule 403 objection because the three murders
explained the motive for subsequent murders that did further the
conspiracy.
The district court's ruling is reviewed for abuse of
discretion. Old Chief v. United States, 519 U.S. 172, 183 n.7
(1997). The court did not abuse its discretion in admitting the
evidence. Cosme-Sobrado's murder was relevant to demonstrate a
motive for an overt act in furtherance of the conspiracy: the
kidnapping and murder of Herberto Rivera-González. Members of the
conspiracy killed Rivera-González because he was a suspected
participant in Cosme-Sobrado's murder. Cosme-Sobrado's death was
also important to demonstrate that conspirators from different drug
points would come together to avenge the death of a member of their
gang. Similarly, the killings of Rivera-Pagán and Millan-Soto in
shootings by the Chacho gang were relevant to demonstrate the basis
for gang warfare with Chacho. This gang warfare led to two overt
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acts in furtherance of the conspiracy: the murder of Roberto
Vasallo-Morninglane, who was a member of the Chacho gang, and the
Quintana massacre.
Soto-Ramírez and Soto-Beníquez also claim, without
further explanation, that they were prejudiced by evidence of
twelve other murders. Because this argument is made in a
perfunctory manner, unaccompanied by any effort at developed
argumentation, it has been waived. See Grella v. Salem Five Cent
Sav. Bank, 42 F.3d 26, 36 (1st Cir. 1994).
b) Admission of Murder Evidence As to Non-CCE
Defendants
(García-García, Gonzalez-Ayala, de León Maysonet)
Three defendants contend that evidence of murders should
not have been admitted against them because the government did not
establish a connection between any of the murders and the charged
conspiracy. They argue that the murders were not shown to be in
furtherance of the charged conspiracy. They also argue that even
if the murders were in furtherance of a conspiracy headed by Soto-
Ramírez and Soto-Beníquez from 1990 until the summer of 1993, those
murders did not advance the interests of the later conspiracy
headed by Rodríguez-López. These errors regarding the admission
of the murder evidence, they contend, cannot be harmless because
the murders constituted about seventy-five percent of the
government's evidence at trial.
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Review is for abuse of discretion. No abuse occurred
here. The three murders discussed in the previous section were
admissible to demonstrate the motive for subsequent overt acts in
furtherance of the conspiracy. The remaining murders were
admissible as acts in furtherance of the conspiracy.
A reasonable factfinder could infer that the murder of
Dagoberto Robles-Rodríguez was in furtherance of the conspiracy.
Soto-Ramírez and Soto-Beníquez worked for Robles-Rodríguez, who
owned the drug point on Cuba Street, at the time of the murder.
Negrón-Maldonado testified that Soto-Ramírez teamed up with co-
conspirators Cosme-Vega and "Manolín" and killed Robles-Rodríguez
at least partly because Soto-Ramírez felt threatened by him.
Afterwards, Soto-Ramírez and Soto-Beníquez took control of Robles-
Rodríguez's drug point. A reasonable inference is that Soto-
Ramírez killed Robles-Rodríguez to avoid further threats and to
gain full control of the drug point, thus eliminating a potential
competitor to the conspiracy.
It is also a reasonable inference that government
informant Ana Luz Dones-Arroyo and undercover police officer Efrain
Hernández de León were killed in furtherance of the conspiracy --
to prevent their discovery of the group's weapons stash. The two
were gunned down as Dones-Arroyo was leading the officer to the
location of the stash.
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Fernando Agosto-Villegas was killed on Soto-Ramírez's
orders because two-eighths of a kilogram of cocaine and a machine
gun belonging to Soto-Ramírez were missing. The murder furthered
the conspiracy by sending the message that those suspected of
stealing from the conspiracy would be treated harshly. Rodriguez,
162 F.3d at 143.
Herberto Rivera-González was killed in retribution for
the death of Cosme-Sobrado, who had been managing Soto-Ramírez's
drug point for him while he was in prison. The defendants
correctly note that the government never proved that Rivera-
González was actually a member of a rival gang or participated in
killing Cosme-Sobrado. But the government met its burden when it
presented testimony that the conspirators believed, even if
incorrectly, that Rivera-González was responsible and that they
killed him for that reason. See, e.g., United States v. Mayes, 917
F.2d 457, 464 (10th Cir. 1990) (explaining that to be "in
furtherance" of a conspiracy, an act must be intended to promote
conspiratorial objectives but need not actually succeed in
furthering the conspiracy).
Reynaldo Cancel-Robles was killed because he seized
control of a drug point located outside Bitumul in the Vista
Hermosa housing project that was supplied by Soto-Beníquez. His
murder furthered the conspiracy by protecting its customer base and
thus ensuring a stronger market for its narcotics.
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Robert Vasallo-Morninglane and the five victims of the
Quintana Massacre were killed in retribution for the death of
Angel Rivera-Pagán. Rivera-Pagán had died in a shootout in Bitumul
with the rival Chacho gang, to which Vasallo-Morninglane and two of
the five victims of the Quintana Massacre belonged. These murders
furthered the conspiracy's goal of defending its territory and its
members against rival drug-trafficking organizations.
Tito Dones-Sanchez was killed while riding in a van near
the drug point at Callejón Nueve. Fernández-Malavé spotted the van
and opened fire on it, believing that those inside were members of
a rival gang who intended to threaten the drug point. Dones-
Sanchez was murdered to protect the drug territory at Callejón
Nueve, and thus to further the goals of the conspiracy.
Oscar Nazario-Rivera was killed because he was a member
of the rival Chacho gang and had fired shots at Rodríguez-López in
the past. His murder furthered the conspiracy by eliminating a
possible threat to one of its major players, Rodríguez-López. Cf.
United States v. Nesser, 939 F. Supp. 417, 421 (W.D. Pa. 1996)
("Hiding information about the leader of a drug conspiracy [in
order to protect him] is another way to further its purpose, by
allowing it to continue.").
We also reject defendants' argument that these murders
furthered a separate conspiracy from the one in which they
participated. As discussed above, the record supports the jury's
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finding that a single conspiracy existed and that the three
defendants were part of it.
Because evidence of all fifteen murders was admissible to
demonstrate the existence of a conspiracy, it was admissible
against these three defendants. Defendants correctly note that the
record establishes that García-García participated in only one
murder, that Gonzalez-Ayala and de León Maysonet participated in no
murders, and that most of the murders occurred before Gonzalez-
Ayala joined the conspiracy and before de León Maysonet turned
eighteen. But, as discussed earlier, the three defendants are
liable for conspiracy. As a result, they are liable for acts in
furtherance of the conspiracy, even if they did not participate in
those acts and even if those acts occurred before they joined the
conspiracy.
c) Admission of Guilty Pleas
(Fernández-Malavé, Gonzalez-Ayala, de León Maysonet)
The district court admitted into evidence Fernández-
Malavé's guilty plea to the murder of Tito Dones-Sanchez over
defense counsel's objection that the plea was not knowing and
voluntary.6 According to Fernández-Malavé, his plea in Puerto Rico
6
Fernández-Malavé also asserts in his brief a different
objection to the admission of his guilty plea, rooted in Fed. R.
Evid. 403. Because this objection was not raised below, the
court's decision not to exclude the evidence on Rule 403 grounds is
reviewed for plain error. See United States v. Woods, 210 F.3d 70,
78 (1st Cir. 2000). Given the relevance of the murder of Dones-
Sanchez to the charged conspiracy, it is clear that there was not
plain error in admitting the guilty plea despite potential Rule 403
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court was coerced because the local prosecutor had falsely
represented to him that the earlier testimony of an unavailable
witness could be used against him at trial. After hearing lengthy
argument on this issue, the district court denied Fernández-
Malavé's motion, concluding that Fernández-Malavé knowingly pled
guilty in order to avoid facing first-degree murder charges.
Normally, it is inappropriate for a federal court to
review a collateral attack on a state court conviction without
affording the state court a prior opportunity to do so. United
States v. Bouthot, 878 F.2d 1506, 1511 (1st Cir. 1989). But when
a defendant challenges the voluntariness of a state court guilty
plea for purposes of an admissibility determination, the interests
of comity and federalism that underlie the exhaustion doctrine are
best served by addressing the merits of that claim. Id.; see
United States v. Campusano, 947 F.2d 1, 4-5 (1st Cir. 1991). We
thus review the district court's evidentiary ruling for abuse of
discretion. United States v. Perrotta, 289 F.3d 155, 164 (1st Cir.
2002).
The district court had a more than sufficient basis upon
which to deny Fernández-Malavé's motion to exclude his guilty plea.
The court noted that "counsel for the defendant described exactly
what the plea was" during the plea colloquy in state court and that
concerns: the murder was highly probative of a material issue in
the case.
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Fernández-Malavé expressly told the court that he had discussed his
options with his lawyer and was pleading guilty freely and
voluntarily. Furthermore, the court concluded that the Puerto Rico
prosecutor did not mislead Fernández-Malavé about the admissibility
of the unavailable witness's prior testimony, but was instead
simply advocating a plausible interpretation of the Puerto Rico
evidence rules. Fernández-Malavé has not presented any reason to
doubt these findings.
De León Maysonet and Gonzalez-Ayala also object to the
district court's admission of their plea agreements regarding state
crimes; de León Maysonet had pled guilty to possessing a controlled
substance, while Gonzalez-Ayala had pled guilty to conspiring or
attempting to violate the Puerto Rico controlled substances law.
The argument of these defendants differs slightly from that of
Fernández-Malavé: they claim that the plea agreements were not
admissible because the government did not enter in evidence a
transcript of their plea colloquies in Puerto Rico court.
Gonzalez-Ayala also argues that his plea should not have been
admitted because the crime to which he pled encompasses numerous
types of criminal activity, making it impossible for the jury to
determine the activities for which he was actually convicted.7
7
The defendants also argue briefly that the convictions
were inadmissible hearsay because they did not fall within Rule
803(22). This argument is not developed in the defendants' brief,
and, in any case, is not meritorious. See Fed. R. Evid. 803(22)
(exception to hearsay rule for "[e]vidence of a final judgment,
-56-
The district court had a sufficient basis to reject these
arguments as well. Even without the transcript of the plea
colloquy, the pleas linked the defendants to the charged drug
conspiracy: according to the arresting officer, both Gonzalez-Ayala
and de León Maysonet possessed heroin and a firearm when they were
arrested. Had the defendants produced specific evidence that the
guilty pleas were coerced, the admissibility of the pleas might be
questionable. But defendants cannot defeat the relevance of these
guilty pleas by making unsupported allegations that they were not
voluntary.
For similar reasons, we reject Gonzalez-Ayala's argument
that his plea should not have been admitted because the statute to
which he pled guilty applied to more than one factual scenario.
The guilty plea corroborated the fact that Gonzalez-Ayala was found
carrying drugs and a weapon, and that fact was relevant in
establishing that he was part of the charged conspiracy.
d) Admission of the Testimony of Cesário-Soto
(Alicea-Torres)
Alicea-Torres makes a separate argument that the
government knowingly offered in evidence perjured testimony from
witness Cesário-Soto. Cesário-Soto testified at trial that he had
observed Alicea-Torres sell drugs at two different drug points.
entered after a trial or upon a plea of guilty . . . adjudging a
person guilty of a crime punishable by death or imprisonment in
excess of one year, to prove any fact essential to sustain the
judgment").
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Alicea-Torres alleges that at an earlier interview conducted by his
counsel and attended by the prosecuting attorney, Cesário-Soto
stated only that Alicea-Torres was in the area. That discrepancy
provides the basis for the defendant's misconduct claim.
We bypass the question whether the defendant properly
preserved the objection and reject on the merits his claim that the
prosecution knowingly used perjured testimony. First, the two
statements by Cesário-Soto are not necessarily conflicting. At the
interview, defense counsel did not pursue what was meant by the
witness's statement that Alicea-Torres was "in the area." Second,
there was no prejudice. Defense counsel cross-examined Cesário-
Soto as to the supposed conflict between his testimony and the
statements he made during the interview. Moreover, Cesário-Soto
was not the only witness to link Alicea-Torres to two different
drug points: Negrón-Maldonado testified that Alicia-Torres sold
drugs at Calejon Dos and Torrens-Alicea testified that Alicea-
Torres conducted drug transactions with Rodríguez-López and spent
time at Callejón Nueve. There is no reasonable likelihood that any
false testimony could have affected the judgment of the jury. Cf.
Kyles v. Whitley, 514 U.S. 419, 433 n.7 (1995) ("[A] conviction
obtained by the knowing use of perjured testimony is fundamentally
unfair, and must be set aside if there is any reasonable likelihood
that the false testimony could have affected the judgment of the
jury.").
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e) Motion to Suppress Exhibit 227, a Photograph, and
Related Testimony
(Fernández-Malavé)
Fernández-Malavé appeals the denial of his motion to
suppress a photograph, later admitted as Exhibit 227, of items that
appeared to be drugs and that were seized when he was arrested on
April 9, 1993. He contends that the photograph was taken after
Officers Rosa-Lopez and Victor-Rivera illegally entered and
searched his apartment without a warrant.
The trial court conducted an evidentiary hearing on the
suppression motion and held that the warrantless entry was
justified by exigent circumstances. The court made the following
factual determinations. Officer Rosa-Lopez was on routine patrol
during the evening of April 9, 1993 when he saw a person carrying
a nickel plated gun in his hand. Before he could respond, the
individual noticed Officer Rosa-Lopez (who was in uniform) and
began to run in the opposite direction. Officer Rosa-Lopez pursued
the suspect up a nearby stairway between two houses, but lost sight
of him when he apparently jumped onto an adjacent patio.
Meanwhile, Officer Victor-Rivera was patrolling the same area when
he received notice on his police radio of the pursuit involving
Officer Rosa-Lopez. While he was approaching the area to provide
back-up, he observed an individual carrying a black gun. That
individual, on spotting Officer Victor-Rivera (who was in uniform),
immediately turned around and ran into a house behind him. Officer
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Victor-Rivera followed the person, later identified as Fernández-
Malavé, into the house and pursued him up the stairway. Officer
Rosa-Lopez, still searching for the first suspect outside, heard a
window open. He turned toward the noise and saw someone drop a gun
and a plastic bag containing drugs out of the window. When he
looked through the window, he saw Fernández-Malavé inside. He then
seized the drugs and the weapon. After a third officer told him
that Officer Victor-Rivera was inside, Officer Rosa-Lopez went to
the front of the house. Officer Rosa-Lopez explained to Officer
Victor-Rivera that he had just observed Fernández-Malavé drop the
seized drugs and weapon out of the back window, and Fernández-
Malavé was placed under arrest.
This court reviews the district court's findings of fact
for clear error and its ultimate Fourth Amendment conclusion de
novo. Ornelas v. United States, 517 U.S. 690, 699 (1996). The
district court's rendition of facts is not clearly erroneous.
Fernández-Malavé unsuccessfully attempts to discredit the court's
findings by noting that much of Officer Rosa-Lopez's testimony was
not included in an earlier sworn statement of his. There are
multiple explanations for why Officer Rosa-Lopez might not have
reported certain details about his encounter with Fernández-Malavé
in his sworn statement, including his belief at the time that those
details were not important. The absence of those details does not
establish clear error.
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The district court's Fourth Amendment conclusion was
correct. Once Fernández-Malavé abandoned the weapon and drugs by
throwing them out of the window, he had no reasonable expectation
of privacy in those items and their seizure did not itself violate
his Fourth Amendment rights. It is well settled that if a
defendant abandons property while he is being pursued by police
officers, he forfeits any reasonable expectation of privacy he may
have had in that property. See Abel v. United States, 362 U.S.
217, 241 (1960). Nevertheless, if Officer Victor-Rivera's pursuit
of Fernández-Malavé into his house was unconstitutional, then the
evidence of the drugs might well have been subject to suppression
as the fruit of an illegal entry. Cf. California v. Hodari D., 499
U.S. 621, 629 (1991); United States v. Lewis, 40 F.3d 1325, 1334
(1st Cir. 1994).
Even without a warrant, police officers are entitled to
enter private residences when "exigent circumstances" necessitate
such action. See Fletcher v. Town of Clinton, 196 F.3d 41, 49 (1st
Cir. 1999). One consistently recognized example of exigent
circumstances encompasses the "hot pursuit" of a suspect the police
reasonably believe to be a felon. Minnesota v. Olson, 495 U.S. 91,
100 (1990); Hegarty v. Somerset County, 53 F.3d 1367, 1374 (1st
Cir. 1995). In such cases, the police are permitted to pursue the
fleeing felon into a private residence in order to effect an
arrest. See United States v. Santana, 427 U.S. 38, 43 (1976).
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Officer Victor-Rivera's pursuit of Fernández-Malavé falls
squarely within the doctrinal confines of the hot pursuit
exception, and thus did not violate the Fourth Amendment. We have
previously held in a remarkably similar situation that an officer
who is looking for a fleeing suspect and has a reasoned basis to
think that he has found the suspect is justified in pursuing the
suspect into a house. See United States v. Lopez, 989 F.2d 24, 27
(1st Cir. 1993) (holding that police were justified under the hot
pursuit doctrine in following defendant into a house because he fit
a general description of an armed assault suspect and ran from
police when he was ordered to halt). That same conclusion holds
here.
Fernández-Malavé also objects on hearsay grounds to the
admission of Officer Rosa-Lopez's testimony about a subsequent
field test that confirmed that the items in the picture were indeed
drugs. The hearsay objection is that Officer Rosa-Lopez did not
perform the field test himself, but instead only observed the test
as it was conducted. The court correctly overruled this objection
at trial. Officer Rosa-Lopez did not testify about an out-of-court
statement, see Fed. R. Evid. 801(c), but about his personal
observation of the results of the field test.
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