United States v. Fontanez ( 2017 )

United States Court of Appeals
For the First Circuit
No. 15-1360
UNITED STATES OF AMERICA,
Appellee,
v.
RAFAEL FONTANEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark G. Mastroianni, U.S. District Judge]
Before
Lynch, Selya and Lipez,
Circuit Judges.
Robert Herrick and Nicholson Herrick LLP on brief for
appellant.
Carmen M. Ortiz, United States Attorney, and Kelly Begg
Lawrence, Assistant United States Attorney, on brief for appellee.
January 9, 2017
SELYA, Circuit Judge. Defendant-appellant Rafael
Fontanez challenges evidentiary rulings made in the course of the
revocation of his supervised release and the ensuing revocation
sentence. After careful consideration, we reject his
asseverational array and affirm the judgment below.
I. BACKGROUND
We start with an overview of the relevant facts and the
travel of the case. On October 15, 1998, the appellant was charged
with one count of conspiracy to possess with intent to distribute
cocaine base (crack cocaine) and three specific-offense counts of
distribution of that controlled substance. See 21 U.S.C.
§§ 841(a)(1), 846. The indictment alleged the applicability of 21
U.S.C. § 841(b)(1)(A)(iii), which provides for a sentence up to
life imprisonment.1
The appellant maintained his innocence and went to
trial. The jury found him guilty on all counts. The appellant
had stipulated to the quantity of drugs for which he should be
held accountable — a series of transactions involving specified
amounts, totaling more than one kilogram — and the jury was not
asked to make (and did not make) a separate drug-quantity
determination.
1
At the time, section 841(b)(1)(A)(iii) applied to offenses
involving more than fifty grams of cocaine base. The triggering
amount has since been increased to 280 grams. See Fair Sentencing
Act of 2010, Pub. L. No. 111-220, § 2(a)(1), 124 Stat. 2372, 2372.
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At the disposition hearing, the sentencing court noted
that the jury "had to have found [the appellant] guilty of more
than 50 grams." This drug quantity exposed the appellant to a
maximum penalty of life imprisonment instead of the default maximum
penalty of twenty years in prison. Compare 21 U.S.C.
§ 841(b)(1)(A)(iii) with id. § 841(b)(1)(C). The court proceeded
to sentence the appellant to an eighteen-year term of immurement,
to be followed by a five-year term of supervised release.2
The appellant served his incarcerative term and, on June
11, 2014, began serving his supervised release term. On November
29, 2014, a man was stabbed at a bar in Springfield, Massachusetts.
An anonymous telephone call named the appellant as the perpetrator.
Three days later, a Springfield police officer, Eric Podgurski,
interviewed the victim in the hospital. He showed the victim an
eight-person photo array, which included a picture of the
appellant. The victim identified the appellant as the malefactor
2 The appellant insists that this judgment does not
"establish[] a conviction for a violation of 21 U.S.C.
§ 841(b)(1)(A)(iii)" because the written judgment states only that
the appellant was found guilty of violating 21 U.S.C. §§ 841(a)(1)
and 846. By its terms, though, that written judgment "adopts the
factual findings and guideline application in the presentence
report" — a report that stated unambiguously that "21 U.S.C.
§ 841(b)(1)(A)(iii) applies" to the appellant's sentence. In all
events, the court made it luminously clear at the sentencing
hearing that the sentence was premised on section
841(b)(1)(A)(iii). If there were a material conflict between the
written judgment and the oral sentence (and we see none), the
latter would control. See United States v. Riccio, 567 F.3d 39,
40 (1st Cir. 2009).
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and wrote on his picture: "I am 100 percent this is the guy that
stabbed me."
In due course, the appellant was charged in a
Massachusetts state court with attempted murder and assault with
a dangerous weapon. He was later brought before the federal
district court in a revocation proceeding aimed at determining
whether he had violated the conditions of his supervised release
(which included a condition forbidding him from committing
"another federal, state, or local crime" during the currency of
his supervised release).
The revocation hearing was continued at the appellant's
request. When the rescheduled date arrived, the government
explained that the victim was out of state due to a pre-planned
vacation. In lieu of the victim's testimony, it sought to
introduce, through Podgurski, hearsay evidence anent both the
photo array identification and the anonymous telephone call. The
district court allowed this evidence over the appellant's
objection. The government also introduced other evidence,
including the bar's video surveillance footage capturing the
commission of the crime.
The district court found, by a preponderance of the
evidence, that the appellant had committed the stabbing and, thus,
had violated the conditions of his supervised release. The court
based this determination primarily on the surveillance video, the
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victim's identification of the appellant in the photo array, and
evidence of the victim's wounds. The court then determined that
the offense undergirding the appellant's supervised release term
was an offense that fell within the purview of 21 U.S.C.
§ 841(b)(1)(A)(iii) and, accordingly, was a Class A felony. See
18 U.S.C. § 3559(a)(1). Having made this determination, the court
sentenced the appellant to a four-year incarcerative term for
violating the conditions of his supervised release. This timely
appeal followed.
II. ANALYSIS
The appellant challenges both the finding that he
violated the conditions of his supervised release and the sentence
imposed. We discuss these challenges sequentially.
A. The Supervised Release Violation.
The appellant's merits challenge is premised on his view
that the court improperly allowed the admission of hearsay
evidence. He submits that the district court should not have
permitted Podgurski to testify either to the victim's
identification of the appellant in the photo array or to the
anonymous telephone call. Inasmuch as these objections were
preserved below, we review the court's decision to admit the
challenged evidence for abuse of discretion. See United States v.
Rondeau, 430 F.3d 44, 48 (1st Cir. 2005).
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In revocation proceedings, a releasee does not have a
Sixth Amendment right to confront adverse witnesses. See id. He
has only a more circumscribed right, delineated in the Federal
Rules of Criminal Procedure. Hearsay evidence is allowable but,
under Rule 32.1(b)(2)(C), a releasee is entitled to "question any
adverse witness unless the court determines that the interest of
justice does not require the witness to appear." In making such
a determination, the court must balance the releasee's right to
confront the witnesses against him with what good cause may exist
for denying confrontation in a particular instance. See Rondeau,
430 F.3d at 48. In practice, this need for balancing requires the
court to weigh both the apparent reliability of the hearsay
evidence and the government's proffered reason for not producing
the declarant. See id.
Here, the district court concluded that the interests of
justice did not require the victim's live testimony. In assailing
this conclusion, the appellant trains his fire principally on the
district court's decision to admit Podgurski's testimony regarding
the photo array. He argues that, as a practical matter, the court
failed to carry out the balancing test at all because it admitted
the testimony despite finding that the government's reason for not
producing the victim was "very weak." He further argues that the
district court's crediting of that "very weak" reason and its
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admission of the hearsay evidence was an abuse of discretion. We
do not agree.
To begin, Podgurski's photo array testimony was
characterized by several indicia of reliability. As an initial
matter, the government introduced a surveillance video of the
stabbing, which corroborated the victim's account of the incident
(as related to Podgurski). So, too, it confirmed the victim's
identification of the appellant. Objective evidence that
corroborates a witness's testimony may provide persuasive proof of
that testimony's reliability. See id.
Here, moreover, the officer's interaction with the
victim bolstered the testimony's reliability. Cf. United States
v. Taveras, 380 F.3d 532, 538 (1st Cir. 2004) (finding hearsay
testimony unreliable where probation officer had only spoken to
victim briefly). Podgurski met with the victim face-to-face in
the hospital and interviewed him at length. The victim was
cooperative, and his account of the stabbing was both internally
consistent and consistent with the video. The consistency of a
declarant's account of events may lend support to a finding of
reliability. See United States v. Marino, 833 F.3d 1, 6 (1st Cir.
2016); Rondeau, 430 F.3d at 48. And according to the district
court (which had the advantage of observing Podgurski's demeanor
at first hand), Podgurski "testified in a way that [indicated]
that he was getting reliable information from the victim."
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Relatedly, the victim identified the appellant
confidently. He expressed no doubt, and memorialized the
identification in writing on the photograph that he selected (a
photograph that was, in fact, a photograph of the appellant). The
victim's confidence in his account was a factor to which the court
could give weight in gauging the reliability of that account. See
United States v. DeCologero, 530 F.3d 36, 62 (1st Cir. 2008).
Last — but far from least — the manner in which Podgurski
handled the photo array bolstered the finding of reliability. The
array was presented to the victim while the central events were
fresh in his mind (his identification was made a scant three days
after the stabbing). Furthermore, Podgurski took care in composing
and presenting the photo array: before showing it to the victim,
he read aloud a comprehensive explanation of the photo array
process. Among other things, this explanation warned the victim
that the perpetrator might or might not be included in the array.
Importantly, the photographs used in the array were of men whose
looks were generally similar to the appellant's. And, all of the
photographs had the same background (thus mitigating the risk of
drawing attention to a particular photograph).
The short of it is that the photo array testimony bore
the hallmarks of reliability. The close proximity between the
crime and the identification, the time that Podgurski spent with
the victim, the victim's level of certainty, and the lack of any
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suggestiveness in the photo array all support the identification's
reliability, see id., and thus support a finding that the Podgurski
testimony should be regarded as reliable. The fact that the victim
memorialized the identification in writing (on the back of a
correctly selected photograph of the appellant) also signals the
testimony's trustworthiness. See Rondeau, 430 F.3d at 48 (finding
hearsay testimony reliable where declarants "reduced their verbal
statements to writing").
In the Rule 32.1(b)(2)(C) context, strong evidence of
reliability can counterbalance a weak reason for not producing the
declarant. See, e.g., Marino, 833 F.3d at 6-7; United States v.
Boyd, 792 F.3d 916, 920 (8th Cir. 2015). Given this principle, we
think that the government in this case furnished "a sufficient
reason" for not producing the victim. Rondeau, 430 F.3d at 49.
The revocation hearing was not held when originally scheduled and,
on the continued date, it is undisputed that the victim was out of
state for a legitimate reason (totally unrelated to the case).
The district court found that to be an adequate reason for not
producing him as a witness. On the facts of this case, that
finding was plausible.
In an effort to blunt the force of this reasoning, the
appellant suggests that the government never intended to call the
victim as a witness. Therefore, he says, the court's assumption
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that only "a scheduling issue" prevented the government from
calling the victim was clearly erroneous.3
This is magical thinking. The record reflects that the
government had planned to have the victim in attendance; but after
the hearing was continued at the appellant's request, the victim
left on vacation. On the new hearing date, the prosecutor
expressly stated that he had been expecting the victim to be
present.
To be sure, the prosecutor did tell the court that he
"was going to attempt to try the case without putting [the victim]
on the stand and further victimize the victim who has to testify
in state court. He already testified in the grand jury and has to
testify at trial there." But these remarks indicate, at most, a
vague, noncommittal desire to avoid putting the victim on the
stand, not a decision to refrain from doing so.4
We add, moreover, that although the government's reason
for not producing the victim may have been weak, the appellant
3
In this regard, the court stated: "I think the government
offered evidence [that] it really was just a scheduling issue. It
was a vacation-type issue and trying to serve a subpoena on this
particular witness" would have been futile.
4
We add that, in appropriate circumstances, the desire not
to further victimize the victim may provide an additional reason
for not requiring a victim to testify. Cf. Rondeau, 430 F.3d at
49 (permitting hearsay testimony rather than forcing declarants to
testify in front of releasee who caused them to fear for their
safety). We have no occasion to explore this point today.
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contributed to the victim's absence. After all, it was the
appellant who requested and received the original continuance,
thus creating the conflict between the new hearing date and the
victim's planned vacation. In striking the requisite balance, the
district court was entitled to take into account the fact that the
appellant contributed to the government's inability to produce the
witness. See United States v. Williams, 443 F.3d 35, 45 (2d Cir.
2006) (holding that releasee's "interest in confronting the
declarant is entitled to little, if any, weight" when releasee's
actions caused declarant's absence).
By the same token, the appellant — after being advised
of the victim's unavailability — neither suggested nor expressed
a willingness to agree to a further continuance. This fact, too,
was pertinent to the striking of the balance. See generally United
States v. Sepulveda, 15 F.3d 1161, 1178 (1st Cir. 1993) (discussing
general rule that "a defendant who does not request a continuance
will not be heard to complain on appeal that he suffered prejudice
as a result").
In constructing the balance between the reliability of
proffered hearsay evidence and the need for confrontation, the
district court's discretion is broad. See Marino, 833 F.3d at 5-
7; Rondeau, 430 F.3d at 48-49. In this instance, the district
court did not abuse its broad discretion in admitting the photo
array testimony.
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We need not tarry over the anonymous telephone call.
The district court took pains to note that it gave Podgurski's
testimony about the anonymous call only the weight that it "might
deserve," which the court described as "not considerable but some
weight." Given the substantial other evidence of the appellant's
involvement in the stabbing (including Podgurski's photo array
testimony) and the infinitesimal role that the call played in the
court's analysis, any error in admitting Podgurski's testimony
about the anonymous call was manifestly harmless. See United
States v. Mosley, 759 F.3d 664, 669 (7th Cir. 2014) (holding that
erroneous admission of hearsay evidence in revocation proceeding
was harmless error when "the result would have been the same
without admitting the hearsay").
B. The Sentence.
The maximum sentence for a person who violates the
conditions of his supervised release varies based on the severity
of "the offense that resulted in the term of supervised release."
18 U.S.C. § 3583(e)(3). For that purpose, offenses are grouped in
various categories. Those groupings have real-world consequences:
a Class C or D felony bears a maximum sentence upon revocation of
supervised release of two years; a Class B felony bears a maximum
sentence upon revocation of supervised release of three years; a
Class A felony bears a maximum sentence upon revocation of
supervised release of five years; and all other offenses bear a
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maximum sentence upon revocation of supervised release of one year.
See id. These categories correspond to the maximum penalties that
can be imposed for the underlying offenses: a Class D felony is an
offense that carries a term of imprisonment of at least five but
less than ten years; a Class C felony is an offense that carries
a term of imprisonment of at least ten but less than twenty-five
years; a Class B felony is an offense that carries a term of
imprisonment of at least twenty-five years but less than life
imprisonment; and a Class A felony is an offense that carries a
maximum penalty of either death or life imprisonment. See id.
§ 3559(a).
The appellant argues that the district court lacked the
authority to sentence him to more than two years of imprisonment
for violating his supervised release. In support, he argues that
the court misclassified his underlying offense as a Class A felony
when it should have been considered a Class C felony. The
appellant preserved this argument at the revocation hearing, and
we review his classification challenge de novo. See United States
v. Eirby, 515 F.3d 31, 35 (1st Cir. 2008).
The basic facts are clear. The jury convicted the
appellant of violating sections 841(a)(1) and 846. Neither of
these offenses requires a specific drug quantity in order to
convict, and the jury made no explicit drug-quantity
determination. Without such a determination, the "default"
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statutory maximum of twenty years ordinarily would apply. See 21
U.S.C. § 841(b)(1)(C); United States v. Portes, 505 F.3d 21, 25
(1st Cir. 2007).
Here, however, the sentencing court found the appellant
responsible for over a kilogram of cocaine base and sentenced him
under 21 U.S.C. § 841(b)(1)(A)(iii). At the time, that statute
required a drug quantity of more than fifty grams of cocaine base
and carried a maximum sentence of up to life imprisonment. The
appellant, in effect, is seeking to challenge, albeit quite
belatedly, the sentencing court's resort to section
841(b)(1)(A)(iii).
In Apprendi v. New Jersey, the Supreme Court held that
"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." 530 U.S. 466, 490 (2000). The
appellant argues that the district court's classification of his
earlier conviction as a Class A felony rested upon a fact not found
by the jury (drug quantity) and, thus, offended Apprendi.
The government counters that the appellant cannot
collaterally attack his sentence in this proceeding. It adds that,
in any event, the indictment in the original case charged a drug
quantity sufficient for a Class A felony, the appellant stipulated
to such a quantity, and the district court appropriately sentenced
him based on that quantity.
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It is entirely likely that the appellant's challenge to
his sentence is not properly before us. See Eirby, 515 F.3d at 36
(describing appellant's Apprendi claim in similar circumstances as
an impermissible "collateral attack"); see also Trenkler v. United
States, 536 F.3d 85, 96 (1st Cir. 2008) (describing 28 U.S.C.
§ 2255 as the "exclusive means of challenging the validity of [a
federal prisoner's] conviction or sentence," with limited
exceptions). But because his challenge fails on the merits
regardless, we bypass the "collateral attack" issue.
To be blunt, the appellant's argument collides head-on
with binding precedent. At trial, the appellant stipulated to a
drug quantity that was well in excess of the threshold needed for
a Class A felony. At sentencing for the underlying offense, the
sentencing court's drug-quantity determination was based on the
stipulation. We have stated in no uncertain terms that
"[f]actfinding premised on a defendant's admissions is not a
practice invalidated by Apprendi." Eirby, 515 F.3d at 36. In
this case, the stipulation obviated the need for a jury
determination of drug quantity because the appellant "had agreed
to the drug quantities, thereby leaving nothing for the jury to do
on that issue." United States v. Etienne, 772 F.3d 907, 923 n.9
(1st Cir. 2014). And in the absence of any Apprendi error at the
original sentencing, the court below cannot plausibly be said to
have committed an Apprendi error at the revocation hearing by
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treating the appellant's prior conviction as a Class A felony.
See id. at 923; Eirby, 515 F.3d at 36.
It is true, as the appellant suggests, that the Eirby
defendant — unlike the appellant — had entered a guilty plea. See
515 F.3d at 32. For present purposes, though, this is a
distinction without a difference: what matters is that here, as in
Eirby, the sentencing court's drug-quantity determination was
based on the defendant's stipulation.
It is also true, as the appellant suggests, that the
stipulation in Etienne was relevant to an element of the offense,
see 772 F.3d at 923, and not — as here — merely to a sentencing
factor, see United States v. Delgado-Marrero, 744 F.3d 167, 185
(1st Cir. 2014) ("Prior to [Apprendi], . . . 'drug quantity' was
considered . . . a 'sentencing factor' that the sentencing judge
could determine by a preponderance of the evidence."). Once again,
the distinction that the appellant draws has no significance: in
both Etienne and this case, the defendant stipulated to a fact,
not a fact only to be used for a certain purpose. See United
States v. Teeter, 257 F.3d 14, 28 (1st Cir. 2001) ("Should the
court decide to accept and act upon factual stipulations for
sentencing purposes, the parties usually will be firmly bound.").
That ends this aspect of the matter. The appellant's
original supervised release term was imposed as part of his
sentence for a crime to which the penalty provisions of 21 U.S.C.
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§ 841(b)(1)(A)(iii) applied (by virtue of his drug-quantity
stipulation). See Etienne, 772 F.3d at 923; Eirby, 515 F.3d at
36; cf. United States v. McIvery, 806 F.3d 645, 651 (1st Cir. 2015)
(holding that any error in imposition of mandatory minimum sentence
based on drug quantity neither charged in indictment nor proven to
a jury was harmless because evidence of quantity was
"uncontested"). Consequently, that underlying offense was a Class
A felony, see 18 U.S.C. § 3559(a)(1), and the court below was
authorized to sentence him to a term of imprisonment of up to five
years for violating his supervised release conditions, see id.
§ 3583(e)(3). It follows inexorably that the appellant's claim of
sentencing error is baseless.
III. CONCLUSION
We need go no further. For the reasons elucidated above,
the judgment is
Affirmed.
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