United States v. Rivera-Donate , 682 F.3d 120 ( 2012 )

United States Court of Appeals
For the First Circuit
No. 08-2441
UNITED STATES OF AMERICA,
Appellee,
v.
EDIBERTO RIVERA-DONATE, a/k/a "YEYE," a/k/a "BALA BLANCA,"
Defendant, Appellant.
No. 08-2541
UNITED STATES OF AMERICA,
Appellee,
v.
JUAN J. GONZÁLEZ-PÉREZ, a/k/a "JUANCHO,"
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Torruella, Stahl, and Thompson,
Circuit Judges.
Ignacio Fernández-de Lahongrais, for appellant González-Pérez.
Jorge L. Armenteros-Chervoni, for appellant Rivera-Donate.
Warren Vázquez, Assistant United States Attorney, with whom
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-
Sosa, Assistant United States Attorney, Chief, Appellate Division,
and George A. Massucco-LaTaif, Assistant United States Attorney,
were on brief for appellee.
June 7, 2012
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TORRUELLA, Circuit Judge. Defendants-Appellants Ediberto
Rivera-Donate ("Rivera") and Juan González-Pérez ("González")
(collectively, the "Defendants") were convicted by a jury on
charges of conspiracy to possess with intent to distribute multi-
kilogram quantities of controlled substances in violation of 21
U.S.C. §§ 841(a)(1) and 846. On appeal, the Defendants
individually raise various challenges to their convictions, with
González also bringing a challenge to his sentence. After careful
consideration, we affirm in all respects.
I. Background
A. The Indictment
In October of 2003, the Drug Enforcement Administration
began an investigation into the drug-trafficking organization run
by Alfredo Martínez-Figueroa ("Martínez") in the area of Ponce,
Puerto Rico. Since 1998, Martínez's organization distributed
cocaine, cocaine base (crack), heroin, and marijuana from drug
points operating in various public housing projects, wards, and
neighborhoods located primarily in the southern region of Puerto
Rico. The organization also shipped narcotics to the continental
United States.
On December 1, 2005, a grand jury returned a multi-count
indictment1 charging forty-two people, including the Defendants in
1
For purposes of this appeal, we limit ourselves to Count One of
the indictment, containing the distribution charges for which the
defendants were convicted.
-3-
this case, with, inter alia, conspiracy to distribute narcotics "at
La Ferrán Ward, Nueva Atenas and Méndez Vigo streets, [the]
Arístides Chavier Public Housing Project, and [the] Ponce Public
Housing Project in Ponce, Puerto Rico." The indictment identified
the Defendants as enforcers of the drug-trafficking organization.
According to the indictment, enforcers were those persons who
possessed, carried, used, and brandished firearms "to provide
protection to the leader of the organization as well as to the drug
operations of the conspiracy from rival drug trafficking
organizations." The Defendants were also both identified as drug
point owners, while Rivera was specifically pegged as a drug
processor and González as a supplier of cocaine for other drug
points. In addition, Rivera was charged with participating in the
March 13, 2005 killing of Luis Torres-Acevedo ("Torres") in
furtherance of the conspiracy.
After the Defendants pled not guilty, Rivera filed
motions to strike the overt act contained in paragraph 27 of the
indictment ("overt act #27") charging him with participation in the
killing of Torres. He also sought to exclude alleged co-
conspirator statements made in furtherance of the conspiracy and to
dismiss the indictment and/or to sever his case. These motions
were denied.
-4-
B. Relevant Testimony at Trial
The government's main cooperating witness at trial was
Jason Barreira-Camacho ("Barreira"), an admitted drug user and
murderer2 who was arrested in 2005 for possession of a firearm.
Barreira testified that he began working for Martínez's
organization in 2001 and held responsibilities as an enforcer,
runner, seller, and processor. In his testimony, Barreira defined
enforcers, including himself, as organization members having the
"duty to kill anybody trying to interfere with the La Ferrán drug
point belonging to [] Martínez." Barreira provided detailed
testimony concerning both Rivera and González's involvement in the
conspiracy.
Barreira testified that he discussed with Rivera the
latter's purchasing of cocaine from Osvaldo Zapata-Cruz (a.k.a.
"Valdo") during 2004, and his subsequent distribution of the drugs
in the Santiago Iglesias housing project. Valdo was Martínez's
right-hand man and in charge of cocaine distribution for the
organization both in Puerto Rico and to the continental United
States. Barreira also identified Rivera as a drug processor for
Martínez's organization and testified that in early 2005 he saw
Rivera processing marijuana along with another co-conspirator at
the house where Barreira resided prior to his arrest. This house
2
Barreira testified to having committed nine murders and two
attempted murders prior to his arrest, during which time he
operated as a member of Martínez's drug trafficking organization.
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was located in Quebrada del Agua, Ponce, which is only a short car
ride away from La Ferrán Ward and the housing projects listed in
the indictment.
Barreira also testified that an unindicted co-conspirator
known as "Chito" confessed to Barreira while in Rivera's presence
that he had accidentally murdered an innocent person as part of a
drive-by shooting in which Rivera participated as the driver.3
According to Barreira, Chito stated that the shooting was meant to
target a person who had allegedly stolen five kilos of cocaine from
Valdo. The unintended victim of the shooting turned out to be
Torres, who had been riding in the car with the intended target.
Barreira testified that, as Chito recounted the events leading up
to the shooting and its aftermath, Rivera confirmed the story
"saying that, yes, it's true, just as Chito told you it happened,
that's how it went down."
According to Barreira's testimony, upon hearing of the
botched drive-by, Valdo became "very, very upset" and asked
Barreira to confiscate Chito's weapon. Subsequently, and at his
request, Chito handed Barreira a .357 Magnum -- the same gun that
the police later found in Barreira's possession on the day of his
arrest. Barreira testified at trial that he incorrectly assumed
3
Barreira testified that "Chito was a real good friend of
Rivera['s]" and had been "working the marijuana along with Rivera"
at Quebrada del Agua.
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this was the same gun that Chito had used to commit the Torres
murder.4
As to González, Barreira testified that, beginning in
2005, González received cocaine from co-conspirator Heriberto
Rodríguez-Rosa ("Rodríguez") for his own distribution. On one
occasion, Barreira personally saw Rodríguez give some cocaine to
González. Subsequently, González approached Barreira directly and
requested a supply of heroin for distribution in the Ponce Housing
Project "because [González indicated that] Rodríguez[] was already
supplying him with crack cocaine." Barreira asserted that González
was distributing the cocaine in the Ponce Public Housing Project.
This testimony was corroborated by Eddie Vidal ("Vidal"), a
government witness and case agent, who indicated that Rodríguez
would give cocaine to González for distribution in the Ponce Public
Housing Project.
In addition, both Barreira and another of the
government's witnesses, Marcos Rentas-Camacho ("Rentas"),
identified González as an enforcer for the organization. Rentas
generally described "enforcers" as members of the gang who "set
order [to] the drug point" and would go to "war" with other gangs.
4
As will be discussed infra, in an affidavit made to state
prosecutors upon his arrest in 2005, Barreira stated that the
pistol the police confiscated from him on the day of his arrest --
a .357 Magnum -- had been the same weapon used to kill Torres on
March 13, 2005. However, ballistics testing would later conclude
that the gun found on Barreira could not have been the murder
weapon.
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Both witnesses testified that González would "hang around" the La
Ferrán drug point, armed and in the company of other charged co-
conspirators; Rentas specified that González would go to La Ferrán
"armed" to "protect the entire drug point." Barreira, in turn,
indicated the kind of weapon that González would carry in the
performance of his duties as an enforcer -- a .45 caliber pistol -–
and that González once handed him such a weapon.
At the close of the government's case the Defendants
moved for judgment of acquittal under Fed. R. Crim. P. 29. The
motions were denied. At the end of trial, the Defendants
unsuccessfully renewed their requests, and on March 3, 2008, they
were found guilty. Subsequent Rule 29 motions by the Defendants
were also denied.
On October 10, 2008, Rivera was sentenced to life
imprisonment, with five years of supervised release if ever
released from confinement. On November 10, 2008, González was
sentenced to a term of imprisonment of two hundred forty months, or
twenty years, followed by a term of supervised release of ten
years. All remaining counts were dismissed against both
defendants. This timely appeal followed.
II. Discussion
Rivera argues that the district court erred by (1)
excluding evidence of certain prior statements made by Barreira,
the government's main witness against him, regarding the weapon
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seized during Barreira's arrest; (2) allowing a conviction based on
evidence that established an impermissible variance to the charges
listed in the indictment against him; and (3) permitting the
government to introduce evidence of the Torres murder via co-
conspirator statements under Federal Rule of Evidence 801(d)(2)(E).
González, on the other hand, claims that (1) the evidence against
him was insufficient to sustain his conviction, and (2) the
district court erred in applying an enhancement to his sentence
based on a prior conviction. We address each issue in turn.
A. Rivera's Challenges on Appeal
1. Exclusion of Barreira's Prior Statements
Rivera claims that the district court improperly denied
the introduction of extrinsic impeachment evidence in the cross-
examination of government witness Barreira and that this violated
his constitutional right to confront the witness against him.
Rivera sought to impeach Barreira with a sworn affidavit given to
state prosecutors upon his arrest. The affidavit contained
Barreira's sworn assertions that the gun that was confiscated from
him on the day of his arrest -- the .357 Magnum that he had taken
from Chito -- was the same gun used for the drive-by shooting and,
consequently, the murder of Torres.5 Subsequent ballistic evidence
5
Rivera also sought to admit certain certified translations of
audio recordings of testimony given by Barreira in state court
proceedings. Counsel for Rivera admittedly failed to submit the
transcripts to the court below as rejected impeachment material for
the record, and Rivera's briefing on appeal is bereft of any
-9-
revealed, however, that the confiscated .357 Magnum was not a match
for the one used in the murder. Accordingly, Barreira's testimony
at trial acknowledged that he had "made a mistake" in his earlier
statements "by incorrectly assuming that [the .357 Magnum] was the
revolver that was used" in the Torres murder. Barreira stated that
he had made this assumption "because [] the day that [he] asked
Chito to give [him] the revolver was the same day that Valdo
ordered [him] to take the revolver from Chito" in connection with
the botched drive-by.
Rivera argues that Barreira's prior sworn statements
establish a discrepancy regarding the gun that makes his testimony
at trial less credible, and his prior statements more significant
for impeachment purposes. We disagree.
"The Confrontation Clause of the Sixth Amendment secures
a right to cross-examination in order to test 'the believability of
a witness and the truth of his testimony.'" United States v.
González-Vázquez, 219 F.3d 37, 45 (1st Cir. 2000) (quoting United
States v. Carty, 993 F.2d 1005, 1009 (1st Cir. 1993)). However, as
we have explained, this right is not unlimited. "When a witness's
credibility is at issue, the trial court may limit cross-
examination as long as the court allows 'sufficient leeway to
description whatsoever of what, if any, material statements those
transcripts contain. We nonetheless assume, based on the nature of
Rivera's argument on appeal, that they contain parallel
misstatements by Barreira as to the gun in question and would
therefore have a similar effect upon the question on appeal.
-10-
establish a reasonably complete picture of the witness' veracity,
bias, and motivation.'" Id. (quoting United States v. Laboy-
Delgado, 84 F.3d 22, 28 (1st Cir. 1996) (internal quotation marks
omitted)).
Thus, on appeal from a trial court's decision to impose
such limitations, we first "review the record de novo to ascertain
whether the court, overall, gave the defendant a reasonable chance
to develop the whole picture." Laboy-Delgado, 84 F.3d at 28(emphasis added). "If we determine that the defendant's
opportunity to impeach adverse witnesses met or exceeded this
constitutionally-guaranteed threshold, we review for abuse of
discretion the district court's decision to impose reasonable
limits on cross-examination in order to avoid confusion of the
issues or extended discussion of marginally relevant material."
United States v. Byrne, 435 F.3d 16, 21 (1st Cir. 2006) (internal
quotation marks and citation omitted).
Barreira's testimony at trial acknowledged that he had
made a prior statement in which he had mistakenly characterized the
confiscated revolver as the murder weapon. Barreira's
acknowledgment at trial of the discrepancy between his prior
statement and the subsequently-gleaned ballistics information
clarified to the jury the precise conflict that Rivera was
interested in highlighting through the affidavit. The district
court's failure to allow Rivera to introduce Barreira's prior sworn
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statement as extrinsic evidence therefore did not prevent the jury
from obtaining "a reasonably complete picture of the witness'
veracity, bias, and motivation." Laboy-Delgado, 84 F.3d at 28(quoting United States v. Boylan, 898 F.2d 230, 254 (1st Cir.
1990)). Defense counsel had ample opportunity to explore this
avenue of impeachment and to "ensure[] that the jury understood
[Rivera's] concerns about the witness," at which point "the
district court was entitled to move the trial forward." Byrne, 435
F.3d at 22. See United States v. Innamorati, 996 F.2d 456, 478
(1st Cir. 1993) (noting "no Confrontation Clause issue [was]
presented" where "reasonable opportunity to test [the witnesses']
veracity and motives was offered"). We therefore hold that the
district court did not deprive Rivera of his confrontation rights
by denying his request to admit prior statements by Barreira as
impeachment material.
Moreover, we conclude that the district court's decision
was not an abuse of discretion. While the previous statement might
be superficially inconsistent with Barreira's testimony at trial,
his explanation upon questioning by both parties, i.e., mistaken
belief, did away with the inconsistency; and so the trial court
found. See United States v. Martin, 694 F.2d 885, 888 (1st Cir.
1982) (alleged inconsistent statement of witness made prior to
trial not allowed as extrinsic impeachment evidence where
defendant-appellant was unable to demonstrate that the offered
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testimony was in fact inconsistent with statements made at trial);
see also United States v. Hale, 422 U.S. 171, 176 (1975) ("A basic
rule of evidence provides that prior inconsistent statements may be
used to impeach the credibility of a witness. As a preliminary
matter, however, the court must be persuaded that the statements
are indeed inconsistent.").
2. Prejudicial Variance
Rivera next argues that the government's evidence at
trial established an impermissible variance from the charges listed
in the indictment against him. Specifically, he submits that any
facts pertaining to drug trafficking in the area of Quebrada del
Agua, introduced through Barreira's testimony, are outside of the
charged conspiracy and are, in fact, related to a separate
conspiracy led by Valdo and an individual known as "Lipo." Rivera
bases this contention on testimony at trial to the effect that Lipo
was running the drug point at Quebrada del Agua, which distributed
marijuana to the adjacent town of Peñuelas, and that this drug
point was not "owned" by Martínez, nor did Lipo "work for" him.
Rivera particularly emphasizes the fact that neither Quebrada del
Agua nor Peñuelas were mentioned in the indictment.6
6
The district court denied Rivera's motion in limine in this
regard and his direct objection to Barreira's Quebrada del Agua
testimony; it also denied Rivera's subsequent motion for a mistrial
during the cross-examination of Barreira based on the same
argument. The argument was again raised in Rivera's various Rule
29 motions, which were also denied.
-13-
Rivera's claim "requires us to determine whether a
variance occurred and, if so, whether that variance prejudiced
[his] substantial rights."7 See United States v. Pérez-Ruiz, 353
F.3d 1, 7 (1st Cir. 2003). This doctrine is also meant to protect
against the prejudicial "spillover" effect that may occur in cases
involving multiple defendants. See United States v. Tormos-Vega,
959 F.2d 1103, 1115 (1st Cir. 1992); United States v. Flaherty, 668
F.2d 566, 582 (1st Cir. 1981) ("If the Government proves more
conspiracies than the one charged in the indictment, a defendant
involved in one conspiracy may not be convicted on the basis of
evidence that relates only to a separate conspiracy."). It is this
last claim that Rivera attempts to raise on appeal.
When, as here, a defendant asserts a claim of variance
that is "premised on the notion that multiple conspiracies existed
and that his activities were not part of the charged conspiracy,
the initial question . . . is one of evidentiary sufficiency."
Pérez-Ruiz, 353 F.3d at 7. We must first determine whether the
government was able to prove the conspiracy charged in the
indictment by applying the typical framework for the review of
sufficiency challenges in criminal cases. See id. Accordingly,
"we canvass the evidence (direct and circumstantial) in the light
7
Our review in this sense is de novo. See United States v.
Dellosantos, 649 F.3d 109, 124 (1st Cir. 2011) ("We review de novo
the question whether a variance affected a defendant's substantial
rights." (quoting United States v. Wihbey, 75 F.3d 761, 774 (1st
Cir. 1996)) (emphasis added).
-14-
most agreeable to the prosecution" to assess if the evidence,
"including all plausible inferences extractable therefrom, enables
a rational factfinder to conclude beyond a reasonable doubt that
the defendant committed the charged crime." Id. (quoting United
States v. Noah, 130 F.3d 490, 494 (1st Cir. 1997)) (internal
quotation marks omitted). In doing so, we resolve all credibility
issues in favor of the verdict, and "[w]e must reject [Rivera's]
claim as long as a plausible reading of the record supports the
jury's implied finding that he knowingly participated in the
charged conspiracy." Id. (citing United States v. Alicea, 205 F.3d
480, 483 (1st Cir. 2000) and United States v. Sepúlveda, 15 F.3d
1161, 1173 (1st Cir. 1993)).8
8
Thus, we are required to address the issue of variance only if
we find that the evidence establishes agreements different from
those charged. United States v. Soto-Beníquez, 356 F.3d 1, 18 n.1
(1st Cir. 2004). See Wihbey, 75 F.3d at 773 (explaining the
framework for analyzing when a variance between the conspiracy
charged and the conspiracy proven constitutes reversible error).
That phase of the inquiry focuses on whether there is sufficient
evidence to permit a well-instructed jury to convict the defendant
of a similar related conspiracy, and if so, whether the variance
between the two conspiracies affected his or her substantial
rights. See United States v. Glenn, 828 F.2d 855, 858 (1st Cir.
1987); Wihbey, 75 F.3d at 773 ("Put differently, '[s]o long as the
statutory violation remains the same, the jury can convict even if
the facts are somewhat different than charged -- so long as the
difference does not cause unfair prejudice.'") (quoting United
States v. Twitty, 72 F.3d 228, 230 (1st Cir. 1995)). Because we
find that the evidence in this case was sufficient to support the
finding of a single conspiracy, however, we need not reach these
additional steps in our analysis. See, e.g., Soto-Beníquez, 356
F.3d at 18 n.1; Pérez-Ruiz, 353 F.3d at 7.
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In order to determine whether a single conspiracy was
proved by the government, we look at the totality of the evidence
with various factors in mind, "none of which, standing alone, i[s]
necessarily determinative." United States v. Sánchez-Badillo, 540
F.3d 24, 29 (1st Cir. 2008). These factors include "(1) the
existence of a common purpose, . . . (2) the interdependency of
various elements in the plan, . . . and (3) the degree of overlap
among the participants." Soto-Beníquez, 356 F.3d at 18-19. The
government does not need to prove "that each conspirator knew of or
had contact with all other members," nor "that the conspirators
knew all of the details of the conspiracy or participated in every
act in furtherance of the conspiracy." Id. at 19 (citing United
States v. Mena–Robles, 4 F.3d 1026, 1032 (1st Cir. 1993)). Here,
in order to find the single conspiracy charged, with Martínez at
its head, it must have been possible for the jury to "infer from
the acts and statements of the witnesses a single ongoing
'agreement' that embraced [Rivera] and other co-conspirators."
United States v. Jones, 674 F.3d 88, 92 (1st Cir. 2012).
Rivera concedes that the trial evidence is sufficient to
support an overlapping of participants between Martínez's operation
and the Quebrada del Agua operation, particularly as it relates to
Valdo. His concern instead is that the objective of the Quebrada
del Agua drug point owned by Lipo was different and separate from
any of the charged conspiracy's concerns because it focused on
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selling marijuana in neighboring Peñuelas (an area not specifically
mentioned in the indictment) and the evidence reflects that Lipo
did not "work for" Martínez. Given, however, "the wide breadth of
the 'common goal' requirement," Rivera's argument does not take him
far. See Sánchez-Badillo, 540 F.3d at 29 (citing United States v.
Portela, 167 F.3d 687, 695 n.3 (1st Cir. 1999)); see also United
States v. Mangual-Santiago, 562 F.3d 411, 421-22 (1st Cir. 2009)
(noting that "'goal of selling cocaine for profit' or 'furthering
the distribution of cocaine is . . . sufficient evidence' of a
common goal" (quoting Portela, 167 F.3d at 695)).
The evidence shows that the activities that took place at
Quebrada del Agua were in fact linked to Martínez's operation.
Barreira testified that Valdo was in charge of distributing
Martínez's cocaine and that, while he was still an enforcer for
Martínez's operation, "[Barreira] left the heroin point to go help
Valdo with the cocaine kilos at [] Quebrada del Agua." Fairly
read, Barreira's testimony reflects that, while Lipo's marijuana
distribution operation ran separately from Martínez's, Valdo ran
his cocaine laboratory from the Quebrada del Agua residence owned
by Lipo's sister, where he kept a "press" for packaging the kilos
of cocaine. Barreira also indicated that, although he personally
"would not get [any] profits out of [Lipo's marijuana operation],
[] [he] would provide safety and security for the marijuana . . .
stash[ed] at the house."
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We also note that another of the government's witnesses,
an unindicted co-conspirator named Gerardo Fontánez ("Fontánez"),
testified that he saw Rivera working the marijuana, crack, and
cocaine processing table with both Lipo and Valdo. Fontánez
testified that he was residing in the same house in Quebrada del
Agua when these events took place. In testimony that will also
become relevant in our subsequent analysis, Fontánez indicated that
on one occasion he saw Lipo take a gun from Rivera and another from
Chito around the time of the Torres murder.9
The evidence, therefore, could support a rational
inference that, at the very least, Lipo's drug point shared a
common defense with the Martínez operation and that Martínez's
cocaine supply depended, at least in part, upon Valdo's successful
processing of the substance at the Quebrada del Agua residence.
See Soto-Beníquez, 356 F.3d at 19 (indicating that interdependency
can be shown where "the success of an individual's own drug
transactions depends on the health and success of the drug
trafficking network that supplies him"); Portela, 167 F.3d at 695("Establishing interdependence among the participants requires
determining whether the activities of one aspect of the scheme are
9
Rivera challenges Fontánez's testimony as having been
inconsistent and "incredible," but it is the prerogative of the
jury to give credence to and interpret the combined testimony of
the various government witnesses and draw any reasonable
conclusions from the same. See United States v. Cianci, 378 F.3d
71, 92 (1st Cir. 2004) (indicating credibility of witnesses "is the
sole function of the trier of fact").
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necessary or advantageous to the success of another aspect of the
scheme." (internal quotation marks and citation omitted)). "Such
interdependence 'makes it reasonable to speak of a tacit
understanding between [a core conspirator] and others upon whose
unlawful acts' his success depends." Sánchez-Badillo, 540 F.3d at
29 (quoting Glenn, 828 F.2d at 858).
Because the jury reasonably could have concluded that the
Quebrada del Agua activities shared a common purpose with
Martínez's operation, had the requisite degree of interdependency,
and were thus a subset of Martínez's master conspiracy, we must
reject Rivera's argument that there was a variance in this regard.
See United States v. LiCausi, 167 F.3d 36, 45 (1st Cir. 1999)
("Whether a single conspiracy or a multiple conspiracy exists is,
of course, a question of fact for the jury."); see also United
States v. Lara, 181 F.3d 183, 204 (1st Cir. 1999) (stating that
"[j]urors are entitled to draw reasonable inferences from proven
facts").
As we stated before, "not every difference between the
indictment and the proof justifies relief." United States v.
Marrero-Ortiz, 160 F.3d 768, 773 (1st Cir. 1998). Although
Quebrada del Agua and Peñuelas are not specifically listed in the
indictment, "[t]he government need not recite all its evidence in
the indictment, nor is its trial proof limited to the overt acts
specified therein." Id. It was established at trial that Quebrada
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del Agua is located in Ponce, and the indictment mentioned that the
drug points associated with the conspiracy were "located in Ponce,
Puerto Rico." In addition, aside from overt act #27, discussed
further infra, Rivera was generally charged as a drug point owner,
drug processor, and as an enforcer for the conspiracy. To this
end, the indictment specified that Martínez's subordinates were
tasked, inter alia, with "accompanying him to purchase kilograms of
narcotics in Ponce and San Juan, Puerto Rico, and other locations
for further distribution at the drug points," as well as concealing
drugs at their residences. Although the indictment did not spell
out every single location at which activities related to the
conspiracy took place, it gave a sufficient description of the
manner and means of the same to put Rivera on notice of the charges
against him. See, e.g., Innamorati, 996 F.2d at 477-78 (rejecting
claim of variance because, although certain evidence presented
encompassed acts not listed in the indictment, "[t]he evidence
complained of [] f[ell] squarely within the scope of th[e] alleged
conspiracy, both temporally and substantively"). We find that
Rivera "cannot credibly claim surprise" and, therefore, "the
asserted variance does not warrant setting aside the verdict."
Marrero-Ortiz, 160 F.3d at 773.
3. Admission of Co-Conspirator Statements
Rivera's final challenge to his conviction is another
attack on the district court's evidentiary rulings. He contends
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that any statements made by Chito or Valdo to Barreira in relation
to the murder of Torres -- overt act #27 -- were inadmissible
hearsay. Because Rivera preserved his challenge to the district
court's admission of these statements,10 we review his claim for
abuse of discretion. United States v. Díaz, 670 F.3d 332, 348 (1st
Cir. 2012).
Federal Rule of Evidence 801(d)(2)(E) classifies as non-
hearsay statements made by a defendant's co-conspirators "during
and in furtherance of the conspiracy." As such, these statements
"if admitted, may be considered for the truth of the matter
asserted." United States v. Colón-Díaz, 521 F.3d 29, 35 (1st Cir.
2008). Their admissibility turns on four elements: (1) the
existence of a conspiracy, (2) the defendant's membership in that
conspiracy, (3) the declarant's membership in the same conspiracy,
and (4) that the statement be made in furtherance of the
conspiracy. Id. at 35-36. "A district court faced with a
challenge to the admission of a co-conspirator's statement must
provisionally admit the statement and then wait until the end of
the trial to consider whether, in light of all the evidence,
[these] four conditions are satisfied by a preponderance of the
evidence." Díaz, 670 F.3d at 348 (citing United States v.
10
During trial, the district court denied Rivera's motion in
limine requesting that it exclude evidence in relation to overt act
#27 and Rivera presented an overruled objection in this respect
during Barreira's direct testimony.
-21-
Vázquez–Botet, 532 F.3d 37, 62 (1st Cir. 2008) and United States v.
Petrozziello, 548 F.2d 20, 23 (1st Cir. 1977)). The preponderance
of the evidence required in this context "must necessarily comprise
more than the weight of the statement itself," requiring some
corroborating extrinsic evidence. Portela, 167 F.3d at 703(quoting Sepúlveda, 15 F.3d at 1181-82).
Rivera contends that the following statements are
inadmissible because they were not made in furtherance of the
conspiracy: (1) Chito's confession to Barreira about the murder of
Torres and his reasons for committing the same, i.e., that the
target had stolen five kilos of cocaine from Valdo, and (2) Valdo's
statements to Barreira in reaction to the news of the botched
drive-by, i.e., his irritation and instruction that Barreira
confiscate Chito's weapon. We find there was no error as to the
latter of these statements because Barreira's testimony regarding
Valdo's reaction was not hearsay. The government offered Valdo's
out-of-court statements to establish the role that Valdo played as
supervisor over both Chito and Rivera. In addition, we have noted
that "[o]ut-of-court statements providing directions from one
individual to another do not constitute hearsay." Díaz, 670 F.3d
at 346 (citing United States v. Bailey, 270 F.3d 83, 87 (1st Cir.
2001)). We therefore proceed to assess only the admissibility of
Chito's statements to Barreira.
-22-
Rivera's argument here essentially reasserts his variance
claim. Because Barreira's conversation with Chito and Rivera about
the botched drive-by took place at Quebrada del Agua, and none of
the activities at Quebrada del Agua had to do with the charged
conspiracy, so Rivera's argument goes, Chito's statements were
inadmissible. Having dismissed Rivera's premise by finding that
the government in this case was able to prove that a single
conspiracy existed, we need not delve too deeply in assessing this
claim.
The first two elements of the test outlined above are
met. We have already discussed the government's evidence from
which a reasonable juror could have concluded that a conspiracy to
distribute drugs operated under Martínez's leadership in the area
of Ponce, that the Quebrada del Agua operation was part and parcel
of the same drug ring, and that Rivera was a member of the
conspiracy by virtue, inter alia, of his drug processing
activities. As to the third element -- whether Chito, the
declarant, was also a member of the conspiracy -- there is evidence
on the record, aside from Barreira's own testimony, that Chito was
a runner for the group, that he was seen arriving at Quebrada del
Agua in the company of Rivera, that the two of them were seen
meeting with Lipo, and that the latter then took a gun from Rivera
and another from Chito. This testimony was given by government
witness Fontánez and serves as independent corroboration of the
-23-
fact that Chito was an active member of the charged conspiracy.
See, e.g., Díaz, 670 F.3d at 348 (identification by other witnesses
of the declarants as co-owners of the drug point and related
testimony as to their activity there considered sufficient as
evidence other than the out-of-court statements at issue).
Finally, the fourth element is satisfied because Chito's
statement to Barreira, that he and Rivera had performed a (botched)
drive-by in retaliation for the theft of cocaine from Valdo's
stash, pertained to the defense of Martínez's drug trafficking
ring. See United States v. Rodríguez, 525 F.3d 85, 101 (1st Cir.
2008) ("A statement is in furtherance of the conspiracy if it tends
to advance the objects of the conspiracy as opposed to thwarting
its purpose." (internal quotation marks and citation omitted)). At
the very least, the district court could reasonably have determined
that the conversation between Barreira, Chito, and Rivera about the
murder of Torres served to keep the members of the conspiracy up-
to-date on important developments relating to the organization.
See Sepúlveda, 15 F.3d at 1180 (noting as "common ground -- and
common sense -- that the reporting of significant events by one
coconspirator to another advances the conspiracy"); see also United
States v. Ammar, 714 F.2d 238, 252 (3d Cir. 1983) ("Statements
between conspirators which provide reassurance, serve to maintain
trust and cohesiveness among them, or inform each other of the
current status of the conspiracy further the ends of the conspiracy
-24-
and are admissible so long as the other requirements of Rule
801(d)(2)(E) are met."). Thus, the district court did not err when
it admitted the co-conspirator statements at issue.11
We move on to consider González's claims on appeal.
B. González's Challenges on Appeal
1. Sufficiency of the Evidence
González contends that the district court erred in
denying his Rule 29 motions for judgment of acquittal based on the
insufficiency of the evidence against him. He argues that the
government's evidence was insufficient to sustain his conviction
because the witnesses' testimonies were "uncorroborated,"
"insubstantial," and "incredible." We find otherwise.
11
Rivera contends that the same evidence does not pass muster
under Crawford v. Washington, 541 U.S. 36 (2004) (holding that
Confrontation Clause bars admission of testimonial hearsay unless
declarant is unavailable and accused had opportunity to cross-
examine). The claim is without merit because "[s]tatements made
during and in furtherance of a conspiracy are not testimonial" and
are, therefore, not subject to Sixth Amendment concerns. United
States v. Malpica-García, 489 F.3d 393, 397 (1st Cir. 2007) (citing
Crawford, 541 U.S. at 56); see also United States v. Hansen, 434
F.3d 92, 100 (1st Cir. 2006) (rejecting Crawford challenge and
finding that statements at issue were nontestimonial because they
were either co-conspirator statements made in furtherance of the
conspiracy, or casual remarks not reasonably expected to be
available for use at a later trial).
We also reject Rivera's additional, overall assertion that the
multiple evidentiary errors he argued, together, caused him
prejudice. Since we rejected all of Rivera's claims of error, "it
necessarily follows that [his] trial was not tainted by cumulative
error and reversal is not warranted." United States v. Brown, 669
F.3d 10, 28 (1st Cir. 2012).
-25-
Because González moved for a judgment of acquittal on
sufficiency grounds, we review the district court's denial of the
motion de novo. United States v. Troy, 583 F.3d 20, 24 (1st Cir.
2009). As noted earlier, we review the sufficiency of the
government's evidence by examining both the direct and
circumstantial proof, "in the light most favorable to the jury's
verdict," id., to determine "'whether that evidence, including all
plausible inferences drawn therefrom, would allow a rational
factfinder to conclude beyond a reasonable doubt that the defendant
committed the charged crime,'" id. (quoting United States v. Cruz-
Rodríguez, 541 F.3d 19, 26 (1st Cir. 2008)). To establish that the
defendant is guilty of participating in a drug-trafficking
conspiracy, "the government must prove . . . that 'an agreement
existed to commit the underlying offense, and that the defendant
elected to join the agreement, intending that the underlying
substantive offense be committed.'" United States v. Paret-Ruiz,
567 F.3d 1, 5 (1st Cir. 2009) (quoting United States v. Gómez-
Rosario, 418 F.3d 90, 105 (1st Cir. 2005)). To prove the
underlying offense of "possession with intent to distribute, the
government must show that the defendants knowingly and
intentionally possessed, either actually or constructively, a
controlled substance with the specific intent to distribute."
United States v. García-Carrasquillo, 483 F.3d 124, 130 (1st Cir.
-26-
2007). Based on the totality of the evidence, we find that this
standard is met in the case before us.
The government's case against González was mainly based
on the testimonies of Barreira and Rentas. Rentas, who described
himself as a drug user from La Ferrán Ward, told members of the
jury that he was a drug seller who also worked as a lookout and
runner for the drug trafficking organization run by Martínez. He
stated that he agreed to testify pursuant to a plea and cooperation
agreement. Rentas described the role of "enforcers" in the
organization and identified González as an armed enforcer of the
same. He testified that he specifically remembered González
arriving at the drug point, armed, and in the presence of another
charged co-conspirator. Barreira, in turn, identified himself as
a drug user and an admitted murderer, and told members of the jury
that, aside from working as an enforcer, he had worked as a runner,
seller, and processor of drugs within the organization. His
testimony corroborated Rentas's account of what an enforcer's role
was within the organization, pegged González as one, specified the
kind of weapon that González typically carried, and indicated that
González once handed him such a weapon. Barreira also testified
that he saw González receive cocaine from co-conspirator Rodríguez
during the time frame of the conspiracy, and that González once
requested heroin from Barreira himself for distribution in the
-27-
Ponce Housing Project. Barreira's testimony in this regard was
corroborated by Vidal, another government witness.
This evidence is sufficient to support the jury's
reasonable conclusion that González was in fact an enforcer for
Martínez's organization and that he also participated as a
distributor of both cocaine and heroin in furtherance of the
charged conspiracy. In the past, similar evidence has been found
sufficient to sustain a drug-related conspiracy conviction. See,
e.g., United States v. Rivera-Rodríguez, 617 F.3d 581, 599-600 (1st
Cir. 2010) (concluding testimonial evidence sufficient for jury to
find that defendant participated in drug-trafficking conspiracy
where testimony related to defendant's relationships with drug
traffickers and his drug-supplying activities); United States v.
Rodríguez–Lozada, 558 F.3d 29, 39 (1st Cir. 2009) (same). We have
also found that evidence of even a single drug transaction, under
circumstances that reflect the defendant's tacit agreement relating
to the continuing drug-trafficking enterprise, can be sufficient to
sustain a conviction for conspiracy to distribute narcotics. See
United States v. Rivera-Ruiz, 244 F.3d 263, 269 (1st Cir. 2001)
(agreeing with this proposition and citing cases). Here, testimony
that González accepted drugs from Rodríguez for distribution, asked
Barreira for additional drugs also for distribution, carried a
weapon, and was a known enforcer for the operation who carried out
his patrolling duties in the company of other charged co-
-28-
conspirators, are all facts supportive of the jury's determination
that González was a member of the overall drug trafficking scheme.
See Paret-Ruiz, 567 F.3d at 6 ("An agreement between coconspirators
may be proven by circumstantial evidence, and it may be tacit.");
United States v. Concemi, 957 F.2d 942, 950 (1st Cir. 1992) ("[A]n
agreement . . . may be inferred from a development and collocation
of circumstances.") (quoting United States v. Smith, 680 F.2d 255,
259 (1st Cir. 1982) (internal quotation marks omitted).
González contends that the government could not rest its
case on the testimony of a government cooperator and serial killer
(Barreira) and the minimal and inconsistent corroboration provided
by Rentas, who was also a government cooperator and Barreira's
brother.12 As to Rentas, González points to his initial inability
to list González as one of the enforcers for the organization, and
emphasizes that he was only able to identify González as an
enforcer after the government's repeated questioning. As to
12
It is unclear from González's brief what significance we are
asked to draw from the fact that the two witnesses were brothers,
except perhaps the notion that they would be in cahoots to
coordinate their respective testimonies in a bid to enhance their
value to the government as witnesses. No such argument is
articulated by González, however, and, in any event, this concern
would be one for the jury to weigh as part of its credibility
determination. Cf. United States v. Vázquez-Guadalupe, 407 F.3d
492, 499 (1st Cir. 2005) (deeming testimony of a government
witness, a criminal defendant being paid by the government for his
cooperation, admissible and noting the credibility of that
testimony "is left for the jury").
-29-
Barreira's testimony, González only contends that the same was
stereotyped, general, and vague.
We cannot agree with González that such alleged
deficiencies in the testimonial evidence presented are enough to
render the basis for his conviction insubstantial under the law.
In conducting our sufficiency analysis, we are not called to
"'assess the credibility of a witness, as that is a role reserved
for the jury.'" Rivera-Rodríguez, 617 F.3d at 596 n.6 (quoting
Troy, 583 F.3d at 24); see also United States v. Calderón, 77 F.3d
6, 10 (1st Cir. 1996) ("It [is] well within the jury's province for
it to choose to believe the testimony of [the defendant's]
accomplices -- in the face of cross-examination of their characters
and motives -- and to disbelieve [the defendant's] version of the
story."). Furthermore, "the uncorroborated testimony of a
cooperating accomplice may sustain a conviction so long as that
testimony is not facially incredible." United States v.
Torres-Galindo, 206 F.3d 136, 140 (1st Cir. 2000) (citing United
States v. Rosario–Díaz, 202 F.3d 54, 67 (1st Cir. 2000)). We do
not agree that the testimonies of Barreira and Rentas were facially
incredible and, in fact, their testimonies, in combination with the
testimony of Vidal, corroborated each other.
Having rejected González's challenge to the sufficiency
of the evidence to sustain his conviction, we now consider his
argument against the district court's sentencing determination.
-30-
2. Sentencing Enhancement
González challenges the applicability to his case of the
sentencing enhancement provided for in 21 U.S.C. § 841(b)(1)(A),
which allows a higher penalty for repeat drug offenders whose prior
convictions have become final. The provision states, in pertinent
part, that any person who violates subsection (a) of Section 841
"shall be sentenced to a term of imprisonment which may not be less
than 10 years or more than life," except that "[i]f any person
commits such a violation after a prior conviction for a felony drug
offense has become final, such person shall be sentenced to a term
of imprisonment which may not be less than 20 years and not more
than life imprisonment . . . ." 21 U.S.C. § 841(b)(1)(A) (emphasis
added). Prior to trial, the government filed an informational
notice under 21 U.S.C. § 851(a)(1)13 to establish González's prior
conviction under the laws of Puerto Rico for a felony drug offense,
that is, possession of a measurable amount of cocaine in violation
of Section 404 of the Commonwealth of Puerto Rico's Controlled
Substances Law. After trial and the jury's finding of guilt under
21 U.S.C. §§ 841(a)(1) and 846, González moved to strike the
government's informational notice, but the district court denied
13
This provision requires that the government provide pre-trial
notice to a defendant of any previous convictions based upon which
he or she might be sentenced to increased punishment for a
conviction under the Controlled Substances Act. See Comprehensive
Drug Abuse Prevention and Control Act of 1970, § 411(a)(1), 21
U.S.C. § 851(a)(1).
-31-
the request in a written order and González was sentenced pursuant
to the enhanced penalty.
On appeal, González reiterates the argument he made
below, that the district court should not have applied the enhanced
penalty provision based on the prior conviction because the same
was not yet "final," as required by Section 841(b)(1)(A), at the
time of his arrest or the issuance of the indictment in the federal
case. He requests that we set aside his sentence and remand his
case to the district court for re-sentencing. "As this argument
presents a question of statutory interpretation, we review it de
novo." United States v. Lino, 493 F.3d 41, 43 (1st Cir. 2007)
(emphasis added); see also Rivera-Rodríguez, 617 F.3d at 608 ("We
review de novo questions of the proper interpretation of statutes,
including whether prior convictions count for purposes of 21 U.S.C.
§ 851."). For the reasons that follow, we affirm the district
court's determination.
The following facts are relevant to González's sentencing
appeal. On or about June 20, 2003 -- during the time frame and
within the territorial limits of the conspiracy charged -- González
was arrested in possession of a measurable amount of cocaine in
violation of Puerto Rico's drug laws.14 On or about September 23,
14
This drug arrest was included as an overt act in the indictment
in this case and the underlying evidence was duly produced by the
government to the defense as part of its discovery obligations.
For reasons not revealed in the record before us, however, the
government did not introduce evidence of this incident at trial,
-32-
2003, pursuant to Rule 247.1 of the Puerto Rico Rules of Criminal
Procedure, P.R. Laws Ann. tit. 34 App. II, R. 247.1, and the
provisions of the state diversionary disposition program known as
"T.A.S.C.," González was placed on a probationary term of two years
for the referenced state drug arrest.15 On or about March 31, 2005,
González was put behind bars in the local system for events
unrelated to this case. In May of 2005, González was arrested
pursuant to the federal charges presently before us, and on
December 1, 2005, he was indicted. Five months later, on or about
May 2, 2006, the Superior Court of Puerto Rico held a hearing and
revoked González's probationary term. The Superior Court then
entered a judgment of guilty for the charged offense, and sentenced
González to a two-year term of imprisonment.
González argues that pursuant to our holding in Lino,
"[a] prior drug conviction" that was based on one of the
transactions that comprises the ongoing, overarching conspiracy at
issue in the federal trial cannot "constitute[] a 'distinct
criminal episode' sufficient to trigger [the Section 841(b)]
nor did it call the arresting officer to the stand.
15
This procedure allows the state court to place a defendant on
probation for the charged drug offense without entering a judgment
of guilt, subject to the revocation of the term of probation (and
the pronouncement of judgment) in the event that any of its
conditions are violated. P.R. Laws Ann. tit. 34 App. II, R. 247.1.
Otherwise, the court, at its discretion, may exonerate the person
and dismiss the charges against him at any time during the period
of probation. Id.-33-
enhancement" unless "the defendant continued to participate in drug
activity after the conviction became final." 493 F.3d at 43(quoting United States v. De Jesús Mateo, 373 F.3d 70, 74 (1st Cir.
2004)). González posits that a prior conviction in this sense is
not final for purposes of a Section 841(b) enhancement until the
time for taking a direct appeal on the same has expired. He so
concludes by citing to United States v. Campbell, 980 F.2d 245 (4th
Cir. 1992), wherein, he contends, the Fourth Circuit so held.
Thus, González argues it was not until thirty days after the
Superior Court of Puerto Rico revoked his probationary period and
entered a finding of guilt against González, in May of 2006, that
his state conviction became final for Section 841(b) purposes. See
P.R. Laws Ann. tit. 34 App. II, R. 193 (providing that the
jurisdictional term for filing a direct appeal from a conviction to
the Puerto Rico Circuit Court of Appeals is "thirty (30) days after
judgment is rendered"). In sum, González contends that his state
conviction did not become final until approximately one year after
his arrest in the present case, which renders the Section 841(b)
enhancement inapplicable.
González's reasoning is flawed for the following reasons.
First, whether or not a prior criminal episode constitutes a
"conviction" for purposes of a federal statutory scheme is
determined under "federal -- not state -- law." Rivera-Rodríguez,
617 F.3d at 609; see also id. ("The Supreme Court and our circuit
-34-
indicate that federal law and not . . . Puerto Rico Rule of
Criminal Procedure 247.1 determines whether [prior drug arrests
that resulted in probationary terms] constitute prior convictions
under 21 U.S.C. § 851."). Second, the Fourth Circuit's decision in
Campbell does not stand for the holding that González ascribes to
it. In that case, the Fourth Circuit held that the trial court had
not erred in enhancing the defendant's sentence pursuant to Section
841 as a result of a "prior conviction," where the defendant had
been sentenced (under a similar Virginia drug diversionary program
and statute) to a term of supervised probation without the
imposition of a judgment of guilt prior to the offense date charged
in the federal indictment. 980 F.2d at 249-50.
In circumstances that parallel the case at hand, the
defendant in Campbell violated his probation and the state court
revoked the deferral and entered a final state conviction on a date
after the indictment issued in his federal case, but prior to
Campbell's federal trial and sentencing. The Fourth Circuit
determined that "[a] sentence of probation, though subject to
expunction, constitutes a 'prior sentence' for purposes of sentence
enhancement," since "[t]he possibility of later 'expunction under
state law does not alter the historical fact of the conviction.'"
Id. at 251 (quoting Dickerson v. New Banner Inst., Inc., 460 U.S.
-35-
103, 115 (1983)).16 Thus, Campbell holds that "as a matter of
federal law" a defendant's "deferred sentence under [] state law
constitutes a prior conviction for purposes of section 841." Id.Our more recent decision in Rivera-Rodríguez addressed
precisely the issue in controversy here and resulted in the same
conclusion as reached by the Fourth Circuit (and the court below in
this case) based on the same case law cited in Campbell. One of
the defendants in the Rivera-Rodríguez appeal had been exposed to
the enhanced sentence provision of Section 841(b)(1)(A) based on a
prior sentence of probation and rehabilitation for the possession
of narcotics, pursuant to Puerto Rico Rule of Criminal Procedure
247.1. 617 F.3d at 609. This defendant argued that the state
sentence of probation could not be considered a prior conviction
because (1) "no appeal could have been taken" from the imposition
of probation in the absence of a finding of guilt, (2) his record
was thereafter expunged by the Puerto Rico Superior Court, and (3)
16
In Dickerson, the Supreme Court had to decide the question
"whether firearms disabilities imposed by 18 U.S.C. §§ 922(g) and
(h) apply with respect to a person who pleads guilty to a state
offense punishable by imprisonment for more than one year, when the
record of the proceeding subsequently is expunged under state
procedure following a successfully-served term of probation." 460
U.S. at 105. The Court held that the statutory disabilities
applied, reasoning that although "there was no written adjudication
of guilt and there was no formal pronouncement of a sentence of
imprisonment for a specified term . . . [i]t was plainly irrelevant
to Congress whether the individual in question actually receives a
prison term . . . . [O]ne cannot be placed on probation if the
court does not deem him to be guilty of a crime . . . ." Id. at
113-14.
-36-
Puerto Rico Rule of Procedure 247.1 explicitly states that the
sentence of probation "shall not be deemed as a conviction." Id.
Citing to both Dickerson and our decision in United States v.
Bustamante, 706 F.2d 13, 14 (1st Cir. 1983), we first concluded
that federal and not state law decided the question. Rivera-
Rodríguez, 617 F.3d at 609. We then went on to hold that the
defendant's prior incidents constituted "convictions" for purposes
of 21 U.S.C. § 851, and agreed with our sister circuits of appeals
who "ha[d] considered this § 841 question" and "counted prior
felony drug convictions even where those convictions had been set
aside, expunged, or otherwise removed from a defendant's record"
for "policy reasons unrelated to innocence or an error of law."
Id. at 609-10 (quoting United States v. Law, 528 F.3d 888, 911
(D.C. Cir. 2008) (citing cases from the Second, Third, Fourth,
Fifth, Seventh, Ninth, and Eleventh Circuits).
Here, González cannot even claim that his prior sentence
of probation should not be counted because it was expunged from his
record. Rather, the Puerto Rico Superior Court sentenced González
to a term of probation (without an adjudication of guilt) prior to
the date on which the federal indictment was returned, but later
revoked it, entering a final order of conviction based on
González's inability to refrain from criminal conduct thereafter.
This confirms the notion that the offense date charged in
González's federal indictment included criminal conduct occurring
-37-
both before and after the Puerto Rico sentence of probation was
entered. Regardless of subsequent events, however, our case law
requires that we consider the state court's imposition of a
sentence of probation for the drug felony charged against González
as a "prior conviction" for purposes of the Section 841
enhancement, whether or not it was subsequently revoked.
Therefore, the district court properly applied the sentence
enhancement in question.
III. Conclusion
We conclude that the district court did not deprive
Rivera of his confrontation rights by denying his request to admit
prior statements by government witness Barreira as impeachment
material, nor did the district court commit an abuse of discretion
by not allowing this evidence. We further conclude that the
government's proof at trial did not establish an impermissible
variance that would warrant reversal of Rivera's conviction.
Moreover, there was sufficient evidence adduced at trial to convict
both Rivera and González of the single conspiracy charged in the
indictment. Finally, the district court did not err with respect
to the sentencing claim made by González. Accordingly, the
judgment of the district court as to each of the Defendants is
affirmed.
Affirmed.
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