United States v. Nelson ( 2003 )

United States Court of Appeals
For the First Circuit
Nos. 00-1422 Volume II of II
00-1457
00-1534
00-1560
00-1561
00-1628
01-1150
01-1873
01-2248
UNITED STATES,
Appellee,
v.
MILTON A. NELSON-RODRIGUEZ; LUIS A. ROMERO-LÓPEZ;
MIGUEL A. RODRIGUEZ-RIVERA; EDUARDO ARROYO-MALDONADO;
CARLOS BONET-GONZALEZ; ANGEL CHEVERE-GONZALEZ;
LUIS CARIBE-GARCIA; RAÚL RIVERA-PÉREZ; VICTOR M. VALLE-LASALLE,
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
Boudin, Chief Judge,
Lynch, Circuit Judge,
and Shadur,* Senior District Judge.
* Of the Northern District of Illinois, sitting by designation.
Marlene Aponte Cabrera for appellant Nelson-Rodriguez.
Rafael F. Castro Lang for appellant Romero-López.
Jose A. Suarez-Santa for appellant Rodriguez-Rivera.
Raymond L. Sanchez Maceira for appellant Arroyo-Maldonado.
Mauricio Hernandez Arroyo for appellant Bonet-Gonzalez.
Raymond Rivera Esteves for appellant Chevere-Gonzalez.
Marlene Gerdts for appellant Caribe-Garcia.
Linda George for appellant Rivera-Pérez.
Luz M. Rios Rosario for appellant Valle-Lasalle.
William C. Brown, Attorney, U.S. Department of Justice, with
whom H.S. Garcia, United States Attorney, was on brief for
appellee.
February 7, 2003
H. Apprendi (Nelson, Rodriguez, Arroyo, Bonet, Chevere, Caribe,
Rivera, and Valle)
All of the appellants except for Romero, who pled guilty,
argue that their sentences were imposed in violation of Apprendi v.
New Jersey, 530 U.S. 466 (2000). Apprendi held that "[o]ther than
the fact of a prior conviction, any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt." Id. at
2362-63. The defendants raise several distinct Apprendi claims,
and we address each in turn.
1. Facial Challenge to 21 U.S.C. § 841The defendants make a facial challenge to 21 U.S.C. § 841.13Section 841(a) makes it unlawful for any person to knowingly or
intentionally distribute or possess with intent to distribute a
controlled substance. Section 841(b) lists the penalties for
violation of section 841(a), which vary depending on the drug type
and quantity. Defendants say this renders the statute facially
unconstitutional.
This argument about § 841 is foreclosed by United States v.
Collazo-Aponte, 281 F.3d 320 (1st. Cir. 2002), which held that
"there is nothing in the statutory language that explicitly defies
13
The defendants were convicted under 21 U.S.C. § 846, not
21 U.S.C. § 841, but they challenge § 841 because § 846 makes it
unlawful to attempt or conspire to commit the offenses listed in §
841. Therefore, the constitutionality of § 846 is dependent upon
the constitutionality of § 841.
-55-
Apprendi" because "[t]he statute is silent as to who makes these
findings and under what burden of persuasion." Id. at 325. Our
decision in Collazo-Aponte is consistent with the decisions of all
circuits that have addressed this issue. See, e.g., United States
v. Buckland, 289 F.3d 558, 562 (9th Cir. 2002) (en banc); United
States v. McAllister, 272 F.3d 228, 232 (4th Cir. 2001); United
States v. Brough, 243 F.3d 1078, 1079 (7th Cir.), cert. denied, 534
U.S. 889 (2001).
Collazo-Aponte similarly rejected the claim that § 841(b)
includes a mens rea requirement as to the type and quantity of
drugs. Section 841(a) requires the defendant to "knowingly or
intentionally" possess controlled substances with an intent to
distribute. The defendants argue that this mens rea requirement
applies to all elements of the crime, including those listed in §
841(b). However, as we held in Collazo-Aponte, "The plain language
of § 841(b) requires the government to prove only that the offense
'involved' a particular type and quantity of drugs, not that the
defendant knew that he was distributing that particular drug type
and quantity." 281 F.3d at 326. The presumption in favor of a
scienter requirement does not apply in this case because the
elements in § 841(b) only set the penalty and do not criminalize
otherwise innocent conduct.
2. Vague Allegations in Indictment
Defendants argue that the indictment was inadequate in that it
-56-
made only vague allegations as to the type and quantity of the
drugs involved in the conspiracy. It is true that Apprendi
considers any fact (other than a prior conviction) that increases
the penalty for a crime beyond the statutory maximum to be an
element of the crime. But the indictment here easily meets this
requirement. The superseding indictment charged that the
defendants possessed with intent to distribute over 1,000 kilograms
of cocaine, five kilograms of heroin, and 5,000 pounds of
marijuana. Furthermore, it provided the drug type and quantity for
each of the planned importations at issue at trial, stating for
example that Arroyo and Rivera met "two other persons known to the
Grand Jury," CIS Hernandez and Diaz, to discuss the importation of
approximately 1,200 kilograms of cocaine into Puerto Rico in May
1997, and that Rivera, Torres, and Chevere received a shipment of
250 kilograms of cocaine in July 1997. Such detail is more than
sufficient to meet Apprendi's mandate, and we therefore reject
defendants' claim.
3. Lack of Jury Determination of Drug Type and Quantity
Defendants argue that their sentences must be vacated because
the jury did not determine drug type or quantity. In fact, the
jury verdict sheet asked simply whether a particular defendant was
guilty of the one count in the indictment, a copy of which was
provided to the jury. The indictment charged that the defendants
did unlawfully, knowingly, willfully, and intentionally
combine, conspire, confederate, and agree together with divers
-57-
other persons to the Grand Jury known and unknown, to possess
with intent to distribute amounts of cocaine, a Schedule II
narcotic drug controlled substance, which amounts of cocaine
exceeded One Thousand (1,000) kilograms; heroin, a Schedule I,
Narcotic Drug Controlled Substance, which amounts of heroin
exceeded Five (5) kilograms; and marijuana, a Schedule I
controlled substance, which amounts exceeded Five Thousand
(5,000) pounds of marijuana
(emphasis added). It also specified particular amounts and kinds
of drugs for transactions in which those defendants participated.
We understand the argument to have several parts, including
first that the jury, at a minimum, had to decide the drug quantity
and type for the underlying conspiracy (to the extent of
determining a quantity which sets the maximum sentence under § 841
that would be applicable to the conspirators). The argument moves
to another level with the assertion that it was error for the trial
judge to deny the requests of several defendants that the jury make
an individualized determination as to the drug type and quantity
which could be attributed to that defendant. Both arguments have
in common the assertion that Apprendi required these issues to be
submitted to the jury in light of the fact that the defendants
received sentences greater than the default statutory maximum. The
relevant default statutory maximum is based on distribution of less
than 50 kilograms of marijuana, which produces a maximum sentence
of five years for first felony drug convictions and ten years if
there is a prior such conviction. 21 U.S.C. § 841(b)(1)(D).
It is common ground, and the government concedes, that the
-58-
defendants were entitled to some form of jury determination as to
quantity -- whether general or individual is a separate question --
before being subject to more than the default statutory maximum.
Here, there was no jury determination of either sort. One might
suppose from the indictment quoted above that the jury necessarily
found the quantities there specified, but in fact review of the
jury instructions confirms that the jury was asked only to
determine whether there was a conspiracy as charged, not whether it
covered any specific amounts of drugs. The government does not
claim otherwise.
However, the jury's failure to determine drug type and amount
is not fatal if the evidence overwhelmingly establishes the amount.
United States v. Cotton, 535 U.S. 625 (2002). In this instance,
our review shows that this is so as to all defendants, whether the
test is plain error or harmless error and whether the figure
relates to the overall conspiracy or to the individual defendant.
We will return to these calculations in due course. But for the
sake of future litigation, it is useful to say something more about
both the requirements for preservation of Apprendi claims and the
problem of general versus specific findings as to amount of drugs.
We begin with the latter.
In United States v. Derman, 298 F.3d 34, 42-44 (1st Cir.
2002), this court ruled that it was sufficient to satisfy Apprendi
if the jury found that the conspiracy charged was to distribute, or
-59-
possess with intent to distribute, a specific quantity (assuming
that this figure triggered the higher maximum sentence at issue).
If the defendant were convicted of participating in such a
conspiracy, this necessarily meant that he was liable, for Apprendi
purposes, for the quantity of the overall conspiracy. We therefore
held that there was no Apprendi error where a jury
has determined that the conspiracy involved a type and
quantity of drugs sufficient to justify a sentence above the
default statutory maximum and has found a particular defendant
guilty of participation in the conspiracy[.] [In this
situation,] the judge lawfully may determine the drug quantity
attributable to that defendant and sentence him accordingly
(so long as the sentence falls within the statutory maximum
made applicable by the jury's conspiracy-wide drug quantity
determination).
Derman, 298 F.3d at 43.
A number of other circuits have taken the same view as to the
issue required to be decided by the jury if the default maximum is
to be exceeded. See United States v. Thomas, 274 F.3d 655 (2d Cir.
2001); United States v. Patterson, 241 F.3d 912 (7th Cir. 2001);
United States v. Nance, 236 F.3d 820 (7th Cir. 2000). Of course,
such a jury determination by itself merely establishes a new
statutory maximum under Apprendi; it does not set the defendant's
guideline sentence, which will often be less than the statutory
maximum and which depends on numerous determinations specific to
the individual defendant, including role in the offense, attributed
relevant conduct, past criminal history, and the like.
Derman thus answers in this circuit the defendants' claim that
-60-
they are entitled under Apprendi to a defendant-specific finding by
the jury as to the amount of drugs properly attributed to an
individual defendant in a conspiracy case. But we recognize that
this is not necessarily the last word on the subject. Conceivably,
borrowing from related doctrines, one could construct a
foreseeability test of some kind -- attributing to each defendant
the amount that the individual agreed upon, actually handled, and
reasonably could have foreseen that others would handle -- and
could ask the jury by special interrogatories to identify such an
amount.
Derman itself involved a relatively simple conspiracy:
growing marijuana in an underground greenhouse, first on Derman's
property, then on another's. See 298 F.3d at 37. In such cases,
it would be a simple matter for the government to indict on the
charge that a particular defendant joined an agreement to possess
the quantity of drugs grown in the greenhouse, with the intent to
distribute that quantity, and to seek a special verdict to that
effect. That simple approach may break down for more complex
conspiracies involving multiple transactions of different amounts
of drugs imported at different times, with a shifting cast of
actors. A series of problems implicating sentencing then arises.
A particular defendant, for example, may have agreed to import
seven kilograms of a drug, but not agreed to import ten, although
it was reasonably foreseeable to him that his coconspirators would
-61-
import ten. Or a particular defendant may have gone in and then
out of a conspiracy. See Edwards v. United States, 523 U.S. 511(1998). There may be one conspiracy; there may be multiple
conspiracies. Or a defendant may raise Pinkerton issues. See
Pinkerton v. United States, 328 U.S. 640 (1946). Some of these
problems might be solved by more specificity in indictments, by
tailored instructions, and by special verdicts.
Such an endeavor would pose issues of its own too numerous to
recount in full. It would implicate the instructions that define
conspiracy, itself a tangled subject with built-in tension. It
could also have practical disadvantages for some defendants by
compromising later arguments they might otherwise make to the judge
concerning the application of the sentencing guidelines. But
Apprendi itself is a recent innovation; it is too early to expect
all of its implications to be worked out, and only the Supreme
Court can provide final guidance. It is enough here that Derman
provides provisional guidance for the circuit and that the outcome
for the defendants in this case would not change even if Derman
were overturned.
In explaining this last determination, we consider first the
level of review to which each defendant is entitled and then
examine separately the evidence bearing on drug quantity
attributable to each individual defendant.
-62-
a. Preservation of Objection
Valle's appeal raises the question, new to us, of what must be
done at trial to preserve an Apprendi objection. Valle was
convicted at the second trial, after the Apprendi decision.14 In
our only case holding an Apprendi objection preserved, the
objection was raised both at trial and at sentencing. United
States v. Bailey, 270 F.3d 83, 88-90 (1st Cir. 2001). Apprendi is
primarily about sentencing, but it also has implications for
indictment and trial, at least in relation to a sentence which
rests on facts which elevate the sentence above the statutory
minimum.
For future cases, we think it sufficient if the defendant
raises the issue at sentencing. The defendant, of course, has no
interest in being sentenced above the maximum and no incentive to
request that the jury specifically determine those facts which
would carry him above that level. The government, on the other
hand, does have an interest in going above the maximum, so it
should bear the burden of requesting submission of the issue to the
jury. Further, a defendant will not know whether there is an
14
Apprendi was decided on June 26, 2000. We have been asked
here to evaluate whether there was Apprendi error in two trials,
one of which took place before Apprendi was decided and the other
of which began after Apprendi. These cases were indicted in 1998,
and the first trial came to verdict in October 1999. Five of the
six appellants convicted at this first trial were also sentenced
before the Apprendi decision; Caribe, the sixth, was sentenced on
December 15, 2000. Valle and Rivera were convicted at the second
trial, which began in September 2000, after Apprendi.
-63-
Apprendi error until sentencing, and then only if the court
considers a sentence above the maximum. An objection from
defendant at the point of sentencing will be timely.
Rivera requested before the jury was charged that the district
court submit the question of drug quantity and type to the jury in
a special verdict. Valle joined in this initial objection. Rivera
renewed his objection at sentencing, but Valle did not. The
government argues that Valle waived his Apprendi claim by failing
to renew his objection after the jury was charged or at sentencing.
The district court denied Rivera and Valle's request, presumably
because this court had not yet held that Apprendi applied to § 846
prosecutions; under prior circuit law, the drug quantity and type
determination for sentencing purposes was for the judge to decide.
See, e.g., United States v. Lindia, 82 F.3d 1154, 1160-61 (1st Cir.
1996). It was not until January 2, 2001, some three months after
the trial judge acted here, that this circuit decided that Apprendi
applied to §§ 841 and 846. United States v. Baltas, 236 F.3d 27,
40-41 (1st Cir. 2001).
Thus, this case may be viewed as a transition case to a new
post-Apprendi regime, before this court applied Apprendi to
prosecutions under §§ 841 and 846. In this transition context,
where the defendant did raise the issue and ask for a special
verdict, we have sympathy for the argument that this is enough to
preserve the Apprendi objection. Still, given Bousley v. United
-64-
States, 523 U.S. 614 (1998), the waiver analysis is very
complicated and we prefer to assume rather than decide that the
issue was preserved in these circumstances.
b. Valle
Valle's sentence of 360 months exceeds the default statutory
maximum for cocaine offenses of twenty years and so raises a valid
claim of Apprendi error.
The jury found Valle guilty beyond a reasonable doubt of
participating in a drug conspiracy. The only transaction in which
Valle was alleged to be a participant was the planned importation
of 1,100 kilograms of cocaine in the summer of 1997. Therefore the
jury must have found that Valle participated in this transaction.
The only issue is the type and amount of drugs involved in this
transaction, an issue that appears to have been undisputed at
trial. See, e.g., United States v. Swatzie, 228 F.3d 1278, 1283
(11th Cir. 2000) (affirming where there was no evidentiary basis
for the jury to find that the defendant had possessed cocaine with
intent to distribute but that the quantity of cocaine involved was
less than five grams).
CI Hernandez testified on direct examination at the second
trial that the transaction involved 1,100 kilograms of cocaine. CI
Diaz also testified that the transaction was to involve between
1,000 and 1,200 kilograms of cocaine. The drug type and quantity
was not the subject of any questions on cross-examination; indeed,
-65-
defense counsels' questions appear to take the drug type and
quantity as a given. Nor did defense counsel raise the issue in
closing arguments. Finally, Valle does not point to any evidence
on appeal that would cast doubt on the alleged drug type or
quantity involved in this transaction. See, e.g., United States v.
Martinez-Medina, 279 F.3d 105, 122 (1st Cir. 2002) (dismissing
defendants' Apprendi claims under harmless error review in part
because neither defendant seriously denied that the conspiracy
involved at least five kilograms of cocaine). We thus conclude
that the Apprendi error as to Valle was harmless.
c. Rivera
Any Apprendi error against Rivera was also harmless. Rivera
was sentenced to life imprisonment, while the default statutory
maximum for a defendant with a prior felony drug conviction (such
as Rivera) is ten years. The government concedes that Rivera
preserved his Apprendi claim because he raised it at trial and at
sentencing. The only issue, therefore, is whether the jury must
have found Rivera guilty of conspiring to possess at least half a
kilogram of cocaine with an intent to distribute. The trial judge
can sentence a defendant with a prior felony drug conviction to
life imprisonment based on that amount of cocaine. See 21 U.S.C.
§ 841(b)(1)(B).
At trial, the government produced overwhelming evidence that
the transactions in which Rivera participated involved at least
-66-
half a kilogram of cocaine. CI Hernandez and CI Diaz testified as
to the amounts involved in two planned cocaine importations of
1,100 kilograms and 700 kilograms. Torres, the cooperating
defendant, testified that Rivera was involved in the successful
importation of 250 kilograms of cocaine. Their testimony was
supported by evidence from wiretaps and other surveillance.
Rivera's counsel did not contest the type or amount of drugs
involved in any of these importations at trial. Rivera argues on
appeal that the jury could not have been sure of the drug type or
quantity involved because these were "dry" conspiracies, which
means that the government did not seize any drugs. The amount of
the drugs was clear, nonetheless. There is simply no serious
argument that the jury could have convicted Rivera believing that
he participated in a conspiracy involving less than half a kilogram
of cocaine.
Rivera also relies on our decision in Collazo-Aponte to argue
that an Apprendi error can never be harmless. That case does not
stand for this proposition. The defendant in Collazo-Aponte did
not preserve his Apprendi error at trial, which means that this
court normally would have reviewed his claim under plain error
review and, as part of that inquiry, examined the evidence against
him. We did not do so, however, because the government conceded
that the error was plain. Collazo-Aponte, 281 F.3d at 324. Thus
there was no reason for the court to go through the plain error
-67-
analysis. Had the government not made this concession, we would
have reviewed the evidence presented at trial to determine whether
the defendant's Apprendi claim survived plain error review.
d. Arroyo
Arroyo's sentence of 324 months was also contrary to Apprendi
because it exceeded the ten-year default statutory maximum for
prior offenders. Arroyo did not raise an Apprendi claim before the
district court, and review is for plain error. Arroyo, who was
replaced as Rivera's lieutenant when he demanded a million dollars,
was connected only to the first planned importation, involving
1,100 kilograms of cocaine. The jury could have convicted him only
on this basis. Arroyo did not dispute at trial the drug type or
amount involved in this planned importation, nor does he dispute
these facts on appeal. Moreover, no jury could have failed to find
beyond a reasonable doubt that the conspiracy involved some amount
of cocaine, triggering a maximum sentence of thirty years. CI
Hernandez testified in great detail about their plans to import
1,100 kilograms of cocaine, and CI Diaz testified to some of the
same facts. There was no plain error.
e. Caribe
We review Caribe's Apprendi claim for harmless error because
he raised the claim at sentencing. Caribe was sentenced to 420
months, which was above the applicable five-year statutory maximum.
This sentence would be authorized by 21 U.S.C. § 841(b)(1)(B) if
-68-
the conspiracy involved at least half a kilogram of cocaine or more
than 100 kilograms of marijuana. Caribe argues that the error was
not harmless because the evidence linking him to the drug
conspiracy was slim and relied primarily on the testimony of
government informants of dubious credibility. The evidence against
Caribe was much stronger than his re-telling of it; but he has
simply focused on the wrong target. The jury did convict him of
conspiring to possess drugs with an intent to distribute them; the
only remaining issue is the type and quantity of the drugs
involved.
The jury could not have convicted Caribe without finding that
he was involved in the conspiracy's final planned importation.
Caribe did not dispute the type or quantity of drugs involved in
that plan at trial and does not do so on appeal. CI Diaz testified
that the importation involved 700 kilograms of drugs. There is
less evidence about the type of drugs involved. Diaz testified
only that there were "700 kilos" involved; he never explicitly said
what type of drugs the conspirators planned to import, although one
question during his cross-examination referred to cocaine, and he
did not correct defense counsel. Nonetheless, it does not matter
for Apprendi purposes what type of drug was involved. The only
drugs charged in the indictment were cocaine, heroin, and
marijuana. Under § 841(b)(1)(B), Caribe's sentence was permissible
regardless of what type of drugs were involved, as long as the
-69-
conspiracy involved at least 700 kilograms of any of these types of
drugs.
f. Bonet
Bonet's sentence of 360 months was contrary to Apprendi
because it exceeded the ten-year default statutory maximum for
prior offenders. His sentence would be valid under 21 U.S.C.
§ 841(b)(1)(D) as long as he conspired to possess with intent to
distribute any amount of cocaine or at least fifty grams of
marijuana. He argues that we should review his claim for harmless
error because his co-defendant Nelson made an Apprendi objection.
However, the trial judge required each defense counsel to make
their own objections, and Bonet's counsel did not join in Nelson's
Apprendi objection. We review Bonet's claim for plain error.
Like Caribe, the evidence tied Bonet to the conspiracy's final
planned importation in the fall of 1997. The same analysis that
applied to Caribe also applies to Bonet: there was overwhelming
evidence of a quantity of "700 kilos," and that quantity of drugs
is sufficient to justify his sentence regardless of whether the
type of narcotic was cocaine, heroin, or marijuana. See 21 U.S.C.
§ 841(b)(1)(B).
g. Nelson
Nelson's sentence of 293 months raises a potential Apprendi
issue because it exceeded the ten-year default statutory maximum
for prior offenders. His sentence would be permissible if the
-70-
conspiracy involved at least 50 kilograms of marijuana or any
amount of cocaine. See 21 U.S.C. § 841(b)(1)(D). Nelson made an
Apprendi objection only during trial; we review his claim for
harmless error.
The primary evidence against Nelson at trial concerned the
planned importations of 36 kilograms of cocaine and approximately
6,000 pounds of marijuana. The jury could not have convicted
Nelson without finding that he was involved in at least one of
these ventures. The Apprendi error was harmless because evidence
establishing the amount and type of drugs involved in both of these
plans was overwhelming and undisputed at trial. CI Hernandez and
cooperating defendant Torres both testified that Nelson had
attempted to bring 36 kilograms of cocaine into Puerto Rico. There
was some dispute as to Nelson's motivations for participating in
the transaction, but he never disputed the type or quantity of
drugs involved. As to marijuana, the government at trial played a
recording of a conversation between Rivera and Nelson in which they
discussed importing 6,000 pounds of marijuana. Nelson offered no
evidence to rebut this point, and at sentencing did not dispute the
contention that the plan involved 6,000 pounds of marijuana.
h. Chevere
Chevere's sentence of 540 months raised a potential Apprendi
issue because it exceeded the five-year default statutory maximum.
The sentence would be permissible under 21 U.S.C. § 841(b)(1)(A) as
-71-
long as he was involved in a conspiracy involving at least five
kilograms of cocaine or 1,000 kilograms of marijuana. Chevere
argues that his claim should be reviewed for harmless error because
he says his counsel raised an Apprendi claim at sentencing. The
transcript of his sentencing hearing shows that his counsel
challenged only Chevere's involvement in the conspiracy and the
base level calculation, not the amount or type of drugs. We review
his claim for plain error.
Although there was not evidence that Chevere conspired to
import marijuana, the evidence did tie him to the successful
importation of 250 kilograms of cocaine. Torres, the cooperating
defendant, testified that Chevere was in charge of security for
that importation. There was no dispute about the type or quantity
of drugs involved. Torres was directly involved in the importation
and testified that he and the other conspirators imported 250
kilograms of cocaine. He described in detail how he and Rivera
split the load and how Rivera planned to send his share to New York
for distribution. CI Hernandez also testified that Rivera told him
that he successfully imported 250 kilograms of cocaine into Puerto
Rico.
Chevere claims that the transaction never took place despite
Torres and Hernandez's testimony to the contrary. To support this
claim, he points to the fact that the FBI, which had Rivera's
organization under surveillance, did not see the delivery of
-72-
cocaine. However, the jury necessarily found that the transaction
did occur, whether or not it was observed by investigators
directly. There was no evidence that this importation involved a
smaller amount of cocaine.
i. Rodriguez
Rodriguez's sentence of 151 months was contrary to Apprendi
because it exceeded the default statutory maximum of five years.
The sentence would be permissible as long as Rodriguez participated
in a conspiracy involving any amount of cocaine. We review his
claim for plain error because he did not raise it at trial.
The only evidence at trial relating to Rodriguez tied him to
the successful importation of 250 kilograms of cocaine. Taped
telephone conversations played at trial showed that Rodriguez
delivered the cocaine imported in that transaction to New York,
where it was distributed by Figueroa, Caribe's brother-in-law. The
jury could not have convicted Rodriguez without believing that he
was involved in this aspect of the conspiracy. The amount and type
of drugs in the successful importation were undisputed at trial,
and thus we reject Rodriguez's Apprendi claim.
I. Substantial Assistance Departure (Romero)
Romero pled guilty and presents one issue, a sentencing issue,
on his appeal. He argues that the sole reason the government
failed to move that he be given a Section 5K1.1 sentence reduction
for substantial assistance was an impermissible one: it was in
-73-
retaliation for his telling the truth in his third debriefing, a
truth which was exculpatory as to codefendant Ortiz.
U.S.S.G. § 5K1.1 provides: "Upon motion of the government
stating that the defendant has provided substantial assistance in
the investigation or prosecution of another person who has
committed an offense, the court may depart from the guidelines."
See also 18 U.S.C. § 3553(e) ("Upon motion of the Government, the
court shall have the authority to impose a sentence below a level
established by statute as minimum sentence so as to reflect a
defendant's substantial assistance in the investigation or
prosecution of another person who has committed an offense.").
Romero's plea agreement stated that "[t]he United States reserves
its option to seek any departure from the applicable sentencing
guidelines, pursuant to Section 5K1.1 . . . if in its discretion
the United States determines that such a departure is appropriate."
The agreement further specified that "[t]he defendant agrees that
the decision whether to file such motion rests in the sole
discretion of the United States."
The district court, after hearing proffers from both counsel,
rejected the argument and declined to take testimony from Agent
Plichta, who conducted the debriefings at issue here. Romero
argued that there was error in not holding an evidentiary hearing
and in not compelling the government to file such a motion.
Our review of questions of law is de novo; our review of the
-74-
fact-based conclusion of the district court as to the substantial
assistance question is for clear error. See United States v. Doe,
233 F.3d 642, 643-44 (1st Cir 2000).
Implicit in the question presented is an issue of law:
assuming Romero's claims were true, whether it is permissible for
the government to decline to seek a substantial assistance
departure in retaliation for a cooperating defendant's truthful
disclosure of exculpatory information about codefendants. In this
area, the government acts under two constraints. First, the law is
clear that the government may not base its decision on an
unconstitutional motive, such as racial prejudice. See Wade v.
United States, 504 U.S. 181, 185-86 (1992). Second, because the
government entered into a plea agreement with Romero, it had to
carry out in good faith the obligations it assumed under the
agreement. See United States v. Alegria, 192 F.3d 179, 186-87 (1st
Cir. 1999); see also United States v. Davis, 247 F.3d 322, 325 (1st
Cir. 2001). This good-faith requirement applies even though the
plea agreement specifies that the "government retains absolute
discretion with respect to the filing of a section 5K1.1 motion."
Alegria, 192 F.3d at 186-87.
Whether viewed as part of the Wade obligation or the Alegria
obligation, the government may not base its refusal to seek a
substantial assistance departure on a defendant's truthful
disclosure of exculpatory information. We can think of few things
-75-
more corrosive to the criminal justice system than prosecutorial
retaliation against a witness for telling the truth. If these were
the government's grounds, they would both be impermissible and have
no rational relationship to a legitimate government end. Cf.
Davis, 247 F.3d at 326.
The district court held that Romero had not made a threshold
showing of improper motivation by the government. See Alegria, 192
F.3d at 187. In explaining to the district court its reasons for
not filing a Section 5K1.1 motion, the government used language
that was likely to arouse suspicion. It complained that, because
of Romero's statements and writings produced at the third of his
four debriefings, the prosecution was forced to provide defense
counsel with Brady and Jencks material. Appropriately concerned by
these statements, the district judge investigated further and took
proffers from both counsel.
In the end, the district court was satisfied that the
government had reason to think Romero was not truthful at the last
two debriefings and, while he had given assistance, he had not
given substantial assistance. Romero's untruthfulness was shown by
the fact that he did not disclose certain information helpful to
Ortiz and Nelson until his third debriefing, and that this newly-
disclosed information appeared to be inconsistent with information
provided by another cooperating witness. As the trial judge noted,
the government had told the court it intended to use Romero as a
-76-
prosecution witness at trial but then did not do so. This decision
not to call Romero as a witness was entirely consistent with the
government's view, expressed at sentencing, that Romero was not
truthful. And, as the district court aptly noted, substantial
assistance is a higher standard for a defendant to meet than mere
cooperation. Romero's failure to be forthcoming in earlier
debriefings evidenced his failure to meet this higher standard.
When faced with such Section 5K1.1 claims where there is a
plea agreement, the government bears the modest burden of
production, not persuasion. Alegria, 192 F.3d at 187. The
government must offer "facially adequate reasons." Id. at 188. It
did so here. The judge, who sat through a lengthy trial and
inquired into this matter, found nothing impermissible about the
government's reasons for declining to seek a substantial assistance
departure. Given the judge's extensive exploration of the issue
with counsel, no separate evidentiary hearing was required.
J. Supervised Release Terms (Bonet and Rodriguez)
Bonet and Rodriguez challenge the length of their terms of
supervised release. The district judge sentenced Bonet to twenty
years of supervised release and Rodriguez to fifteen years. Both
defendants claim that these terms were invalid because they were
disproportionately longer as a percentage of their total years of
imprisonment than their codefendants' terms. This argument is
foreclosed by 18 U.S.C. § 3742(a), which establishes the limited
-77-
circumstances in which a defendant can seek review of his sentence.
As the Seventh Circuit held in United States v. Rios-Calderon, 80
F.3d 194, 198 (7th Cir. 1996), "nothing in § 3742(a) allows review
of a sentence imposed in conformity with the Guidelines on the
ground that a codefendant was treated differently." See also
United States v. Youngpeter, 986 F.2d 349, 356 (10th Cir. 1993)
("Sentencing differences due to individual conduct as considered by
the Sentencing Guidelines does not make a sentence
disproportionate.").
Rodriguez also argues that his supervised release term is
barred by U.S.S.G. § 5D1.2. We note at the outset that this claim
was nearly forfeited because of the skeletal manner in which it was
raised. See Mass. Sch. of Law v. Am. Bar Ass'n, 142 F.3d 26, 43
(1st Cir. 1998) (claim is forfeited if it is raised in a
perfunctory manner unaccompanied by developed argumentation). But
we will give Rodriguez the benefit of the doubt and find that the
claim was not forfeited. Rodriguez's counsel also failed to object
to the length of the supervised release term at sentencing, which
would normally mean that his claim could be reviewed only for plain
error. But we will again give Rodriguez the benefit of the doubt
because he was not given advance notice in the presentence report
or by the judge or prosecutor that he could be sentenced to more
than five years of supervised release, the maximum term specified
in the guidelines.
-78-
We now turn to the merits of Rodriguez's claim. U.S.S.G. §
5D1.2 states that supervised release terms for Class A or B
felonies shall be "at least three years but not more than five
years." The relevant statute, 21 U.S.C. § 841(b)(1)(A), provides
that the defendant shall be sentenced to a term of supervised
release of "at least five years." This court's recent decision in
United States v. Cortes-Claudio held that these provisions should
be read together to mean that a defendant convicted under 21 U.S.C.
§ 841(b)(1)(A) can be sentenced to only five years of supervised
release unless the judge makes a permissible upward departure from
the guidelines. 312 F.3d 17, 18-19 (1st Cir. 2002). The judge can
make such a departure if he finds that there are aggravating
circumstances "of a kind, or to a degree, not adequately taken into
consideration by the Sentencing Commission," and if the parties are
given advance notice that the judge is contemplating making such a
departure and of the grounds on which the judge is contemplating
departing. Id. at 24; see also United States v. Burns, 501 U.S.
129, 138-39 (1991).
The district judge in this case did not anticipate this
court's decision in Cortes-Claudio and mistakenly concluded that
the guidelines did not apply to the length of a supervised release
term imposed under 21 U.S.C. § 841. Thus he did not give the
parties notice of a possible upward departure or make the required
findings of aggravating circumstances to support the departure. We
-79-
accordingly vacate Rodriguez's fifteen-year supervised release term
and remand to the district court for re-sentencing as to the length
of the term of supervised release. On remand, should the district
court find that there are aggravating circumstances of a kind, or
to a degree, not adequately taken into consideration by the
Sentencing Commission, it must still give the parties advance
notice that it is contemplating departing and the grounds of the
possible departure and give them an opportunity to respond.
K. Other Sentencing Guidelines Issues
1. Drug quantities (Caribe, Bonet, Valle, Chevere, Arroyo,
Nelson, Rodriguez)
In sentencing, the district court took into account the amount
of drugs that could be attributed to each defendant. Several
defendants challenge these determinations, which are distinct from
claims that the determination of quantity by the judge rather than
the jury violated Apprendi.15 We review the trial court's factual
determinations at sentencing for clear error. United States v.
Damon, 127 F.3d 139, 141 (1st Cir. 1997). Legal interpretations of
the sentencing guidelines are reviewed de novo. United States v.
15
As we noted above, Apprendi only requires the jury to
determine the drug type and quantity involved in the conspiracy.
After the jury has made this determination, the judge can make
individualized determinations about the amount of drugs
attributable to each defendant. Even though the jury did not make
its initial determination, we found no reversible error as to any
defendant, so that the judge could still determine the amount of
drug attributable to each defendant.
-80-
Ranney, 298 F.3d 74, 80 (1st Cir. 2002).
a. Caribe
Caribe argues that the court erred in setting his base offense
level at 38, which is applicable to a quantity of 150 kilograms or
more of cocaine. The court set the base offense level after
determining that 745 kilograms of cocaine could be attributed to
Caribe. The court held that Caribe was directly involved in the
conspiracy to import 700 kilograms of cocaine in the fall of 1997.
This determination was consistent with the testimony of CI Diaz,
who testified that Caribe was a key player in several meetings to
plan the details of this importation. It also attributed to Caribe
45 kilograms of cocaine out of the successful 250 kilogram
importation, which he sent to his brother-in-law in New York for
distribution. Torres had testified that Caribe was in charge of
moving some amount of cocaine up to New York, and that he believed
the amount to be "about forty-five" kilograms. It was not clear
error for the court to conclude that Caribe was responsible, at
least in part, for distributing 45 kilograms of cocaine. This
total quantity of 745 kilograms of cocaine supports the court's
decision to set Caribe's base offense level at 38.
b. Bonet
The court found Bonet responsible for at least 150 kilograms
of cocaine, based on Bonet's involvement with the planned
importation of 700 kilograms of cocaine. This determination was
-81-
not clear error considering Bonet's role in planning this
importation.
Bonet argues that the court should have reduced the amount of
cocaine attributed to the defendants because of the intensive
involvement of CIS Hernandez and Diaz in the conspiracy. This is
a type of improper sentencing factor manipulation argument, for
which Bonet has the burden. As stated in United States v. Montoya,
"garden variety manipulation claims are largely a waste of time."
62 F.3d 1, 4 (1st Cir. 1995). It is insufficient to say that the
idea of the conspiracy originated with undercover agents, or that
conduct was encouraged by the government, or that the crime
exceeded in degree or kind what the defendant had done before.
Instead the defendant must show that elements like these were so
extensive that "the government's conduct must be viewed as
extraordinary misconduct." Id. (internal quotations omitted).
This standard is high in part because the defendant has the
opportunity to raise an entrapment defense at trial.
Bonet has fallen far short of this standard; he offers nothing
more than conclusory allegations. Furthermore, Hernandez testified
that the Colombians, not he or Diaz, set the amount involved in the
cocaine importations. For example, in the 700 kilogram
importation, Hernandez testified that the Colombians wanted the
organization to import 700 kilograms of cocaine as a test to
determine whether its members had the capability to import larger
-82-
quantities of drugs in the future. Bonet also bragged to Diaz that
he and his team had been drug trafficking for years. It is
unlikely, therefore, that government agents encouraged Bonet or his
coconspirators to engage in conduct in which they would otherwise
have been unwilling to participate.
c. Valle
Valle argues that the judge erred in attributing at least 150
kilograms of cocaine to him. He did not raise this claim at
sentencing, and therefore it is waived. United States v. Shattuck,
961 F.2d 1012, 1015 (1st Cir. 1992) ("We do not review sentencing
guideline disputes which were not preserved before the district
court."). We have discretion to review waived guidelines claims in
"horrendous cases where a gross miscarriage of justice would
occur." United States v. Haggert, 980 F.2d 8, 11 (1st Cir. 1992).
This is not one of those cases. The evidence overwhelmingly tied
Valle to the planned importation of 1,100 kilograms of drugs. CI
Hernandez testified extensively about Valle's involvement in this
transaction and the amount and type of drugs involved.
d. Chevere
Chevere argues that the district court erred in finding that
he was involved in the importation of 250 kilograms of cocaine.
Torres testified that Chevere was in charge of security for this
successful transaction. Chevere argues that the district court
should not have used this transaction to set Chevere's base offense
-83-
level, because an FBI agent who was watching the delivery location
testified that he did not actually see the drugs being delivered.
Whether the FBI agent saw it or not, there was ample additional
evidence at trial that the transaction took place, and that Chevere
was involved in it. There was no clear error.
e. Arroyo
Arroyo argues error in the attribution of 1,200 kilograms of
cocaine to him because the government did not show that he had the
capability to transport such a large amount of cocaine. Arroyo
argues that the government never proved that Arroyo owned a boat
that could be used to bring the cocaine to Puerto Rico. Under the
sentencing guidelines, if a planned drug transaction does not take
place, the sentencing court should base the defendant's drug-
quantity finding on the negotiated amount of drugs, in this case
1,200 kilograms. See U.S.S.G. § 2D1.1, cmt. n.12. However, the
court can use a lower amount if "the defendant establishes that he
or she did not intend to provide, or was not reasonably capable of
providing, the agreed-upon quantity of the controlled substance."
Id. Thus the burden is on Arroyo to show that he was not capable
of transporting 1,200 kilograms of cocaine. Arroyo has not met his
burden in this case and there was no clear error.
f. Nelson
Nelson argues that the district court erred in attributing
99.5 kilograms of cocaine to him. The court found that he was
-84-
involved in the successful importation of 250 kilograms of cocaine
and had a role in distributing 50 kilograms from that shipment.
Torres testified that Rivera gave Nelson some unknown percentage of
Rivera's own share of the cocaine from this shipment. Rivera also
gave a percentage of his share to Caribe and to Chevere, but Torres
did not know exactly how much each of the three defendants
received; he only knew that together they received 50 kilograms.
Nelson and Rivera, in recorded conversations, discussed the price
at which they would be able to sell the cocaine. The court also
found that he had a role in the attempted importation of 36
kilograms of cocaine and the transaction involving 6,000 pounds of
marijuana. It also could have based its overall findings on
Nelson's more general involvement in distributing Rivera's share of
the cocaine. We see no clear error in the court's conclusion.
g. Rodriguez
Rodriguez argues that the district court erred in determining
that his base offense level was 34, which is applicable when the
judge attributes at least 15 kilograms of cocaine to the defendant.
The government alleged that Rodriguez was involved in delivering to
Figueroa in New York approximately 45 kilograms of cocaine from the
250 kilogram shipment. The government introduced taped
conversations in which Rivera told Figueroa that he had arranged
for someone to deliver the cocaine to Figueroa. The day before,
Rodriguez had flown to New York from San Juan. The government also
-85-
introduced a recording of a conversation in which Rodriguez and
Rivera discussed the price of cocaine. At trial, Rodriguez
disputed that he had been involved in the cocaine delivery, but the
jury could not have convicted Rodriguez otherwise. The only
remaining issue is the amount of drugs that Rodriguez brought to
New York; Torres testified that Rivera sent "about 45" kilograms
there. It was not clear error for the judge to attribute at least
fifteen of those kilograms of cocaine to Rodriguez.
2. Minor Participant Adjustment (Bonet)
Bonet argues that the court erred in not granting him a two-
level reduction under U.S.S.G. § 3B1.2(b) for being a minor
participant in the conspiracy. The commentary to this section
states that "a minor participant means any participant who is less
capable than most other participants, but whose role could not be
described as minimal." U.S.S.G. § 3B1.2(b) cmt. n.5. In seeking
a § 3B1.2 adjustment, a defendant "has the burden of proving that
he is both less culpable than most others involved in the offense
of conviction and less culpable than most other miscreants
convicted of comparable crimes." United States v. Ortiz-Santiago,
211 F.3d 146, 149 (1st Cir. 2000). The court did not err in
refusing to grant this adjustment. The testimony at trial showed
that Bonet participated in several of the meetings in which the
conspirators planned the importation of 700 kilograms of cocaine.
Bonet was also responsible for testing the radio equipment that
-86-
would be used. Finally, Bonet told CI Diaz that he had been part
of Rivera's drug trafficking team for many years. It was entirely
reasonable to conclude that Bonet was no minor participant.
3. Special Skills Enhancements (Valle and Bonet)
Section 3B1.3 of the sentencing guidelines provides that the
district court can increase the offense level two levels if the
defendant "used a special skill, in a manner that significantly
facilitated the commission or concealment of the offense." The
commentary to this section states, "'Special skill' refers to a
skill not possessed by members of the general public and usually
requiring substantial education, training or licensing. Examples
would include pilots, lawyers, doctors, accountants, chemists, and
demolition experts." U.S.S.G. § 3B1.3 cmt. n.3. We review the
district court's legal interpretation of the term "special skill"
de novo and its factual application for clear error. United States
v. Noah, 130 F.3d 490, 499 (1st Cir. 1997).
The district court increased Valle's offense level by two
levels because it found that Valle was going to be the boat captain
for the first planned importation of 1,100 kilograms of cocaine,
thus exercising a special skill. Valle did not object to this
enhancement at his sentencing hearing, and therefore he waived the
claim. Haggert, 980 F.2d at 10-11. Even if this claim were not
waived, the record amply supports the determination.
The district court enhanced Bonet's offense level by two
-87-
levels because it found that his coconspirators were "counting on
his skills as a person knowledgeable with communication equipment."
The record establishes that Bonet had a special skill. CI Diaz
testified that on October 30, 1997, Bonet conducted a test of the
20/40 radio that the conspirators were planning to use to
communicate with the Colombians in order to complete the planned
importation of 700 kilograms of cocaine. A 20/40 radio is one that
can be used to communicate with any part of the world. Bonet
showed Diaz the antenna he had put on a tree outside his house.
Bonet then set up the radio and tried to contact the Colombians;
unbeknownst to him, the transmission was intercepted by the FBI.
Bonet conducted the test over high and low frequency channels and
had given the Colombians the same list of frequencies so that the
two groups could communicate. This evidence shows that Bonet had
a special skill within the meaning of § 3B1.3. Accord United
States v. Malgoza, 2 F.3d 1107, 1110 (11th Cir. 1993) (term
"special skills" applies to an "advanced level of radio operating
ability").
A defendant does not need to have formal education or
professional stature to have a special skill within the meaning of
§ 3B1.3. Noah, 130 F.3d at 500. Instead "a special skill can be
derived from experience or from self-tutelage." Id. Nonetheless,
the defendant must possess skills that members of the general
public would not have. Bonet's knowledge was more extensive than
-88-
merely turning on a radio and speaking; he also knew how to
assemble the radio and its antenna and understood how to determine
and locate the frequencies necessary to communicate with the
Colombians.
The issue remains whether Bonet's skill "significantly
facilitated the commission . . . of the offense." U.S.S.G.
§ 3B1.3. Diaz did not testify that Bonet would be the person
operating the radios on the day the shipment was delivered. Two
reasonable inferences support a determination that Bonet's special
skill substantially facilitated commission of the crime. We review
both possible determinations for clear error.
First, Bonet's radio test in and of itself aided the
conspiracy. He was responsible for making sure that Rivera's
organization had the necessary radio equipment to handle such a
large importation of drugs. The Colombians would not be willing to
entrust Rivera's organization with the shipment if it could not
make this showing. Even though Bonet was unable to contact the
Colombians during his radio test, it did show Diaz (who, as an
intermediary, acted as the Colombians' representative) that
Rivera's organization had at least some of the necessary equipment
and skills.
Second, an inference that Bonet would be the one operating the
radios the day of the shipment could not be clear error. Bonet
played an integral part in the meetings. He told Diaz that he was
-89-
skilled as a boat captain, but that he would not be the boat
captain for this shipment. Bonet argues that he never got a chance
to use his special skills to the full extent contemplated by his
conspirators. However, U.S.S.G. § 2X1.1(a) also covers intended
offense conduct that can be established with "reasonable
certainty." It was not clear error to conclude with reasonable
certainty that Bonet intended to use his special skill to
facilitate the crime. See United States v. Downing, 297 F.3d 52,
65 (2d Cir. 2002).
4. Firearm Enhancement (Caribe)
The district court increased Caribe's offense level by two
levels because the court determined that Rivera had a weapon in
Caribe's presence during part of the planning of the 700 kilogram
importation. U.S.S.G. § 2D1.1(b)(1) provides that the judge can
increase the offense level by two levels "if a dangerous weapon
(including a firearm) was possessed." The comment to this section
states that the enhancement applies if a weapon was present, unless
it is clearly improbable that the weapon was connected with the
offense. See U.S.S.G. § 2D1.1(b)(1), cmt. n.3.
The judge found that Caribe was present when Rivera gave CI
Diaz a gun to give to CI Hernandez. Diaz testified that he met
with Caribe and Rivera on August 16, 1997. At the end of the
meeting, Rivera gave Diaz a gun that he asked Diaz to give to
Hernandez. Rivera told Diaz that Hernandez could use the gun if he
-90-
had to because it was "clean." Caribe claims that he left the
meeting before Rivera gave Diaz the gun, but this claim is not
supported by the record. Caribe was the last person to arrive at
the meeting, but Rivera gave Diaz the gun at the end of the meeting
as they were saying good-bye. It was not clear error for the judge
to determine that Caribe remained at the meeting at this point.
Caribe next argues that the government did not establish the
required nexus between the gun and the conspiracy. The prosecution
must show that the defendant (or in a conspiracy case, one of his
coconspirators) possessed a weapon during the offense. United
States v. McDonald, 121 F.3d 7, 10 (1st Cir. 1997); United States
v. Thornton, 306 F.3d 1355, 1358 (3rd Cir. 2002). The prosecution
does not have to show that the defendant or his coconspirators
actually used the gun in perpetrating the offense or intended to do
so. McDonald, 121 F.3d at 10. Once the prosecution has made this
showing, the burden shifts to the defendant to establish that a
connection between the weapon and the crime was clearly improbable.
Id. Caribe argues that the prosecution did not make its required
showing because it relied on the uncorroborated testimony of CI
Diaz. It is routine, and certainly not clear error, for the trial
judge to credit a witness's testimony in making sentencing
determinations, even if the testimony is not corroborated by other
evidence. Nor did the judge err in determining that Caribe's
coconspirator possessed the gun in connection with the conspiracy.
-91-
5. Leadership Enhancement (Caribe)
Caribe next argues that the court erred in increasing his
offense level by three levels after determining that Caribe was a
manager or supervisor in the organization. Section 3B1.1(b)
permits the court to enhance the sentence if "the defendant was
manager or supervisor (but not an organizer or leader) and the
criminal activity involved five or more participants or was
otherwise extensive." The court based its determination on CI
Diaz's testimony about Caribe's role in planning the importation of
700 kilograms of cocaine in the fall of 1997. For example, Diaz
testified that Caribe "controlled all of the beaches and the group
from Humacao, including the captain and the boats." Caribe also
told Diaz that Ortiz, who was supposed to captain the boat that
would bring the drugs into Puerto Rico, worked for him. According
to Diaz, Caribe said that "they [Rivera and Caribe] had the
captains, the boats, and the personnel that was needed to carry out
the job." This evidence is sufficient to support the court's
determination.
6. Downward Departure Requests (Valle and Nelson)
The district court denied motions by Valle and Nelson for
downward departures in their sentences. Valle argues that the
district judge abused his discretion by failing to depart from the
sentencing guidelines because of a claimed disparity between his
sentence and the sentence of some of his coconspirators. The
-92-
argument fails; a court cannot depart from the sentencing
guidelines in order to correct a disparity between the sentences of
coconspirators. See United States v. Ortiz-Santiago, 211 F.3d 146,
150 (1st Cir. 2000) ("Disparity in sentencing amongst
coconspirators, without more, is not enough to justify a downward
departure.").16 Nelson argues for a downward departure based on his
necessity defense that he participated in the conspiracy only to
save his kidnapped nephew. This was committed to the non-
reviewable discretion of the district court. See United States v.
Romero, 32 F.3d 641, 653 (1st Cir. 1994).
L. Procedural Errors at Sentencing (Caribe)
1. Right to Speedy Sentencing
Caribe claims that his right to a fair trial was violated
because of excessive delay in his sentencing. Caribe was convicted
on October 1, 1999. All objections to the Presentence
Investigation Report were submitted by April 25, 2000, but he was
not sentenced until December 15, 2000. Thus, over fourteen months
passed between the date of conviction and the date of sentencing.
The Sixth Amendment provides that "[i]n all criminal
prosecutions, the accused shall enjoy the right to a speedy and
public trial." U.S. Const. amend. VI. The Supreme Court has not
16
It is far from clear that there was any disparity. Valle's
sentence of 360 months was greater than four coconspirators'
sentences and equal to or less than four other coconspirators'
sentences.
-93-
definitively held that this right extends to the sentencing phase.
See Pollard v. United States, 352 U.S. 354, 361 (1957) (assuming
without deciding that the sentence is part of the trial for
purposes of the Sixth Amendment). However, most circuits that have
addressed this issue have held that the right to a speedy trial
extends to this phase. See, e.g., United States v. Yelverton, 197
F.3d 531, 535-39 (D.C. Cir. 1999); Burkett v. Cunningham, 826 F.2d
1208, 1220 (3d Cir. 1987); United States v. Reese, 568 F.2d 1246,
1252-53 (6th Cir. 1977). Several other circuits, including this
one, have assumed without deciding that the right extends to
sentencing. See, e.g., Katz v. King, 627 F.2d 568, 576 (1st Cir.
1980); United States v. Rothrock, 20 F.3d 709, 711 (7th Cir. 1994).
No circuit has held that the right to a speedy trial does not apply
at this phase.17
We assume for the purposes of this appeal that the right to a
speedy trial extends to sentencing. We analyze the defendant's
claim under the four factors that the Supreme Court set out in
Barker v. Wingo, 407 U.S. 514, 530 (1972): the length of the
delay; the reason for the delay; the defendant's assertion of his
right; and prejudice to the defendant. None of these factors is a
necessary or sufficient condition to the finding of a deprivation
17
A judge is also required under Fed. R. Crim. P. 32(a) to
sentence a defendant "without unnecessary delay." Caribe has not
argued that the delay in his case violated this rule, and therefore
we do not address whether he would have a possible claim
thereunder.
-94-
of the right to a speedy sentencing. See id. at 533.
Applying these factors to the case at hand, we conclude that
any right to speedy sentencing was not violated. A fourteen-month
delay between the date of conviction and the date of sentencing is
long enough to trigger an inquiry into the other Barker factors.
See Perez v. Sullivan, 793 F.2d 249, 254 (10th Cir. 1986) (finding
a fifteen-month delay long enough to provoke an inquiry into the
remaining three factors); see also Barker, 407 U.S. at 530 ("Until
there is some delay which is presumptively prejudicial, there is no
necessity for inquiry into the other factors that go into the
balance"); Katz, 627 F.2d at 577 (finding that a four-month delay
is "not unreasonable and certainly not of constitutional
dimensions").
Caribe does not make a persuasive showing on any of the other
factors. It took approximately seven months for the probation
officer to complete the presentence report and for the parties to
submit their objections. This time was not excessive given the
length of the trial, the number of defendants, and the complexity
of the evidence, and indeed Caribe has not challenged this portion
of the delay. Much of the later delay can be attributed to
Caribe's own motions. He filed a series of motions to continue his
sentencing: the first such motions were filed on December 17, 1999
and February 1, 2000 and were denied on January 13, 2000 and
February 4, 2000, respectively; the court acceded to later requests
-95-
from Caribe's counsel to postpone the sentencing, which had been
scheduled for February 25, 2000; the court eventually denied
Caribe's December 6, 2000 motion to continue his sentencing on
December 13, 2000 and sentenced Caribe on December 15, 2000.
Caribe also filed a motion for a new trial, which the court denied
on December 15, 2000.
Finally, and most importantly, Caribe has not shown he
suffered any prejudice as a result of the fourteen-month delay. The
prejudice resulting from a delay between indictment and trial is
obvious: the accused must live with the anxiety and concern of
facing trial; he may have to spend an extended length of time in
custody; and his defense may be impaired if witnesses' memories
fade. However, "[m]ost of those interests diminish or disappear
altogether once there has been a conviction." Perez, 793 F.2d at
256. Thus, the courts have great reluctance to find a speedy trial
deprivation where there is no substantial and demonstrable
prejudice. Id. Caribe argues that the delay made it more
difficult for him to challenge the contested factual allegations in
the presentence report, but he does not explain which allegations
or how he was prejudiced. He also claims that the delay gave the
government more time to persuade the probation officer to include
unwarranted enhancements in the presentence report, but as
discussed below, Caribe was not prejudiced by these communications.
Caribe may have been anxious about the length of the sentence the
-96-
judge would impose, but such anxiety is present in every sentencing
and cannot be sufficient to meet the prejudice requirement.
2. Ex Parte Communications Between Prosecution and Probation
Officer
Caribe also argues that the prosecution violated Fed. R. Crim.
P. 32(b)(6)(B) by having ex parte communications with the probation
officer who wrote the presentence report. Caribe apparently wants
this court to eliminate the two enhancements added to his offense
level and remand the case to the district judge for re-sentencing.
Rule 32(b)(6)(B) provides:
Within 14 days after receiving the presentence report, the
parties shall communicate in writing to the probation officer,
and to each other, any objections to any material information,
sentencing classifications, sentencing guideline ranges, and
policy statements contained in or omitted from the presentence
report. After receiving objections, the probation officer may
meet with the defendant, the defendant's counsel, and the
attorney for the Government to discuss those objections. The
probation officer may also conduct a further investigation and
revise the presentence report as appropriate.
The probation officer issued her initial presentence report to both
parties on February 3, 2000. This report did not recommend an
enhancement for Caribe's leadership role in the conspiracy or
possession of a gun during the conspiracy. Caribe alleges that
Agent Plichta then met with the probation officer and reviewed the
evidence about Caribe's role in the conspiracy. The probation
officer then amended her report to recommend a four-level
enhancement for a leadership role and a two-level enhancement for
firearm possession. Caribe's counsel was not given a chance to
-97-
rebut Agent Plichta's statements before the amended report was
released, although he was able to file formal objections pursuant
to Rule 32 and to raise his objections directly to the district
court during the sentencing hearing. Caribe filed a motion
objecting to the ex parte communications and demanding disclosure
of all documents that the probation officer used in preparing the
presentence report. The defendant also asked to be able to call
the probation officer as a witness at the sentencing hearing to
examine the extent of the communications.
In a published opinion, United States v. Caribe Garcia, 125 F.
Supp. 2d 19 (D.P.R. 2000), the district judge denied the motion.
The court held that there was no prosecutorial misconduct because
"disclosing information to the probation officer [is] the
functional equivalent of disclosing information to the court
itself." Id. at 21. The court also stated that Caribe failed to
show that he was entitled to a downward departure given that the
presentence report only recommends a sentence and the final
sentencing determination is made "after the Court hears arguments
and objections to the presentence report in open court." Id. We
agree with the second basis for the court's opinion but not the
first.
The first issue is difficult because of the discrepancy
between the fairly formal procedure contemplated by Rule 32 and the
more informal reality. It is common for one side to speak with the
-98-
probation officer, either before or after the report is released.
One district court has stated that, in that court's experience, ex
parte communications between the government and the probation
officer preparing the report are "appropriate and regular."
Roccisano v. United States, 936 F. Supp. 96, 103 (S.D.N.Y. 1996).
But we could not fully embrace such informality without reading
Rule 32(b) out of the Federal Rules; Rule 32(b) does require a more
structured process, at least in the fourteen-day period following
the release of the presentence report.
Rule 32(b) is literally read as permitting ex parte
communications initiated by either party both before and after this
fourteen-day period. During the fourteen-day period, however,
while the parties are preparing their written objections to the
presentence report, the parties, under the rule, should communicate
with the probation officer only in writing, and all communications
must be disclosed to the other party. This reading of the rule
permits most of the present informality, while allowing both sides
to know the scope of the objections. See Fed. R. Crim. P.
32(b)(6)(B) advisory committee notes to 1994 Amendments (the
parties should have a "fair opportunity . . . to review, object to,
and comment upon, the probation officer's report in advance of the
sentencing hearing"). There are benefits to informality, but the
parties should at least know what issues are on the table
concerning the presentence report so they can present counter-
-99-
arguments if they desire.
Even if contact with Agent Plichta did inadvertently violate
Rule 32, Caribe has failed to show that he has suffered any harm as
a result. First, he does not explain what he hoped to accomplish
by additional discovery or by calling the probation officer to
testify at the sentencing hearing. The revised presentence report
apparently sets forth the additional evidence the probation officer
relied upon in amending her recommendations, and all other facts
appear to be undisputed. Second, as the district court noted, the
report is only a recommendation to the court; the court is not
bound to accept these recommendations. The district court in this
case had notice that the second report was prepared after the
prosecution's alleged ex parte contact and gave Caribe's counsel
ample opportunity at sentencing to dispute the report's
recommendations. The court then found that the enhancements were
appropriate and sentenced the defendant accordingly. Thus Caribe
fails to show what harm he suffered as a result of the ex parte
communications. See, e.g., Montoya, 62 F.3d at 3 (1st Cir. 1995)
("[T]he sentencing court has ample power to deal with
[prosecutorial misconduct impacting the judge's sentencing options]
by excluding the tainted transaction from the computation of
relevant conduct or by departing from the [recommendation].").
-100-
M. Conclusion
We affirm the judgments and the sentences and reject each of
the defendant's claims, except that we remand, in accordance with
this opinion, the issue of the term of supervised release for
Rodriguez and vacate that aspect only of his sentence. So ordered.
-101-