United States v. Landron-Class , 696 F.3d 62 ( 2012 )

United States Court of Appeals
For the First Circuit
No. 10-2462
UNITED STATES,
Appellee,
v.
REYNALDO LANDRÓN-CLASS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Lynch, Chief Judge,
Selya and Lipez, Circuit Judges.
Rafael F. Castro Lang for appellant.
Scott H. Anderson, Assistant United States Attorney, with whom
Rosa Emilia Rodriguez-Velez, United States Attorney, Nelson Pérez-
Sosa and Thomas F. Klumper, Assistant United States Attorneys, were
on brief, for appellee.
August 29, 2012
LIPEZ, Circuit Judge. Appellant, Reynaldo Landrón-Class,
was tried and convicted in the United States District Court for the
District of Puerto Rico for his role in a scheme to illegally
obtain and distribute prescription drugs. On appeal, Landrón-Class
challenges his conviction on numerous grounds, including: 1) a pre-
trial ruling during the voir dire, 2) evidentiary rulings made by
the district court during his trial, 3) the court's decision not to
order certain documents turned over to him as Jencks Act material,
and 4) the denial of his motion for a judgment of acquittal under
Federal Rule of Criminal Procedure 29. He also asserts multiple
errors in the determination of his sentence.
We conclude that the district court did err in allowing
testimony about the guilty pleas of appellant's former co-
defendants; however, this error was harmless. Additionally, in
resolving a claim of sentencing error, we join other circuits in
holding that, in determining the appropriate sentence within the
guidelines, or in varying from the guidelines, a sentencing court
has discretion to consider the defendant's cooperation with the
government as an 18 U.S.C. § 3553(a) factor, even if the government
has not made a United States Sentencing Guidelines ("USSG") § 5K1.1
motion for a downward departure.
Finding no reversible error in the district court's
decisions, we affirm.
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I.
We begin with an abbreviated version of the facts
underlying this appeal, reserving for our analysis of appellant's
individual arguments a more detailed description of the facts
relevant to each. We present the facts in the light most favorable
to the verdict. See United States v. Díaz, 670 F.3d 332, 337 (1st
Cir. 2012).
Appellant was originally indicted with twenty-one other
defendants for his role in a conspiracy to possess and distribute
approximately 435 kilograms of oxycodone and 278 kilograms of
alprazolam from January 2005 to September 2007. He moved to
dismiss the indictment, arguing that there was no single conspiracy
among the various co-defendants. The district court denied this
motion as moot after appellant was re-indicted, in September 2009,
with just one other co-defendant, Miriam Daisy-Perez. This new
indictment charged that the two co-defendants conspired to possess
with intent to distribute approximately forty-four kilograms of
oxycodone over the period January 2005 to September 2007.1
Specifically, appellant allegedly obtained, from a single doctor,
1
Oxycodone is an opiate analgesic, available only by
prescription. As an opiate, it has an effect on users similar to
that of heroin, and it is often used recreationally. Because of
these facts, it is classified as a Schedule II controlled substance
under the Controlled Substances Act and implementing regulations,
21 C.F.R. § 1308.12(b)(1)(xiii), meaning that it "has a currently
accepted medical use," but also "a high potential for abuse," 21
U.S.C. § 812(b)(2)(A) & (B).
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at least 2,700 medically unnecessary prescriptions for oxycodone in
his name and the names of others, and used these prescriptions to
obtain oxycodone from various pharmacies.
Appellant was offered a deal by the government, whereby
it would recommend a sentence of seventy months' incarceration if
he pled guilty to the charges. He rejected this offer because of
the disparity between the deal offered to him and that offered to
other defendants involved in the same scheme.2 Accordingly,
appellant was tried before a jury in June 2010. Even though he had
admitted the offense conduct during the government's investigation,
appellant denied at trial his participation in the conspiracy and
argued that he was factually innocent.
The primary government witness was Dr. Jose Victor
Vázquez-Senti, from whom appellant obtained the prescriptions used
in the scheme. Dr. Vázquez-Senti testified that appellant
initially came to him as a patient in late 2004, complaining of
back pain. However, after the treatment ended, Vázquez-Senti
continued to supply prescriptions to appellant for a fee.
Initially, appellant simply dictated the names that Vázquez-Senti
used to write prescriptions. But, around December 2006, appellant
provided five "patient" lists to Vázquez-Senti, each containing
2
For example, Daisy-Perez was the owner of a pharmacy from
which oxycodone was obtained. She negotiated a non-cooperation
plea agreement calling for a sentence of probation and was
ultimately sentenced to three years' probation.
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between six and fifty-six names and addresses. Appellant regularly
called Vázquez-Senti to instruct the doctor to write new
prescriptions in the names of individuals on the lists, and
Vázquez-Senti subsequently delivered the prescriptions to appellant
-- about twenty each week. Generally, the prescriptions were
filled at one of three pharmacies, and, over the course of the
conspiracy, Vázquez-Senti wrote at least 2,700 medically
unnecessary prescriptions for appellant's use.
The Drug Enforcement Administration ("DEA") became aware
of the unusual pattern of Vázquez-Senti's prescriptions and started
an investigation. The DEA secured a wiretap of the doctor's phone
and recorded calls in which the doctor and appellant discussed
their activities, including the preparation of prescriptions and
how best to obtain drugs from various pharmacies. The DEA
eventually arrested appellant, Vázquez-Senti, and twenty other
individuals, including owners of the pharmacies from which drugs
were obtained and individuals who filled the prescriptions at the
pharmacies. Excepting appellant, each of the other individuals
indicted pled guilty to at least some of the charges against them.
At the conclusion of a four-day jury trial, appellant was
found guilty of conspiracy to possess with intent to distribute
676.50 grams of oxycodone. The jury also found that the government
was entitled to a forfeiture of $541,200, the estimated proceeds of
the conspiracy. Appellant was sentenced to 240 months'
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incarceration, which was below the guidelines range, but the
maximum sentence permitted by statute. This appeal followed.
II.
A. Pre-trial and Trial Rulings
1. Voir Dire of Potential Jurors
Appellant challenges two aspects of the district court's
handling of the voir dire. He argues that it was error for the
court to decline to ask potential jurors questions that he proposed
concerning their legal use of prescription drugs, prior grand jury
service, and general personality traits. He also argues that the
court erred in failing to dismiss juror number 26 for cause because
of a purported bias against drug users and the fact that she was
the daughter of two attorneys -- a retired judge and a former
attorney with the Puerto Rico Department of Justice.
We review challenges to the trial court's voir dire of
the jury under an abuse of discretion standard. United States v.
Sherman, 551 F.3d 45, 49 (1st Cir. 2008). We have noted that,
"[b]ecause the trial court observes the demeanor and reactions of
the prospective jurors, we review its determination of jury
impartiality with 'special deference.'" Id. at 51 (quoting United
States v. Moreno Morales, 815 F.2d 725, 733 (1st Cir. 1987)).
Furthermore, a court "need not . . . pose every voir dire question
requested by a litigant. It is more than enough if the court
covers the substance of the appropriate areas of concern by framing
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its own questions in its own words." Id. (quoting Real v. Hogan,
828 F.2d 58, 62 (1st Cir. 1987)) (internal quotation marks
omitted).
Here, although the district court declined to give
prospective jurors the questionnaire proposed by appellant, it
noted that many questions included in the questionnaire were
similar to the questions that it did ask prospective jurors. For
example, it asked about experience with drugs and drug-related
crimes, whether the prospective jurors had connections to law
enforcement, either themselves or through friends and family
members, and whether the prospective jurors felt that they would be
able to presume appellant innocent. These questions were
sufficient to probe for potential biases. It was not an abuse of
discretion for the court to decline to ask the questions proposed
by appellant.
The court also did not err in declining to strike juror
number 26 for cause. After individual questioning of this juror,
the court determined that she did not have a bias against drug
users. Although the court also noted that the juror's father was
a retired judge, it determined that this fact did not render her
unfit for jury service, an unremarkable conclusion. As we have
explained, "[t]here are few aspects of a jury trial where we would
be less inclined to disturb a trial judge's exercise of discretion,
absent clear abuse, than in ruling on challenges for cause in the
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empaneling of a jury." United States v. Gonzalez-Soberal, 109 F.3d
64, 69-70 (1st Cir. 1997) (internal quotation marks omitted).
There was no abuse of discretion here.
2. Authentication of Prescriptions by Vázquez-Senti
Appellant's challenges to his conviction include
preserved evidentiary objections, reviewable for abuse of
discretion. United States v. Mare, 668 F.3d 35, 38 (1st Cir.
2012). Of course, even if such an error occurred, it would not
serve to overturn a conviction if it ultimately proved harmless.
See United States v. Walker, 665 F.3d 212, 231-32 (1st Cir. 2011).
An error is harmless if we can conclude "with fair assurance, after
pondering all that happened without stripping the erroneous action
from the whole, that the judgment was not substantially swayed by
the error." Id. at 231 (quoting Kotteakos v. United States, 328
U.S. 750, 765 (1946)) (internal quotation marks omitted).
The district court admitted into evidence approximately
2,700 prescriptions written by Vázquez-Senti and seized by
government agents from computers at the three different pharmacies
from which appellant obtained drugs. They were admitted into
evidence pursuant to Federal Rule of Evidence 901(b)(1), which
allows authentication through testimony of a witness with knowledge
of the nature of the item. The government provided a foundation
for the prescriptions through testimony by Vázquez-Senti, who
reported that he wrote them and gave them to appellant and others.
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Vázquez-Senti testified that the prescriptions were medically
unnecessary and that he took the names appearing on them from the
lists that appellant provided to him. On appeal, appellant argues
that it was error for the court to admit the prescriptions without
authenticating testimony from someone with knowledge of how the
prescriptions were presented and filled at each pharmacy.
Rule 901(b)(1) permits authentication of evidence on the
basis of "[t]estimony of a witness with knowledge" that the
evidence is what it is claimed to be. Thus, "[a] document can be
authenticated [under Rule 901(b)(1)] by a witness who wrote it,
signed it, used it, or saw others do so." Orr v. Bank of Am., NT
& SA, 285 F.3d 764, 774 n.8 (9th Cir. 2002) (second alteration in
original) (quoting 31 Charles Alan Wright & Victor J. Gold, Federal
Practice & Procedure: Evidence § 7106 (2000)) (internal quotation
marks omitted); see also Dugas v. Coplan, 428 F.3d 317, 334 n.25
(1st Cir. 2005) (noting that a letter may be authenticated under
Rule 901(b)(1) by testimony from its author).
In this case, Vázquez-Senti testified that he wrote all
of the prescriptions offered into evidence by the government.
Having so testified, he could authenticate the prescriptions as
those written at the request of appellant and testify that they
were medically unnecessary. See Orr, 285 F.3d at 774 n.8.
Vázquez-Senti testified that he had reviewed the prescriptions,
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recognized them as coming from his prescription pad, and identified
his signature.
Appellant's argument that the prescriptions were used to
show how they were presented at various pharmacies -- a topic on
which Vázquez-Senti lacked knowledge -- has no merit. The
government did not have to show how the prescriptions were filled
to convict appellant of conspiracy. It was enough to prove
appellant's role in the conspiracy to show that he obtained the
prescriptions with the intent that they be used for an illegal
purpose. See United States v. Medina-Martinez, 396 F.3d 1, 5 (1st
Cir. 2005) ("To prove conspiracy in a criminal case, the government
must prove beyond a reasonable doubt that an agreement existed to
commit the underlying substantive offense, and that the defendant
elected to join the agreement, intending that the underlying
offense be committed."). Moreover, the government offered the
prescriptions to show how appellant obtained the drugs sold through
the scheme. Vázquez-Senti was the only witness capable of
testifying to the origin of the prescriptions and to the fact that
they were medically unnecessary. A DEA agent later testified as to
how the prescriptions were seized from various pharmacies.
Accordingly, the court's decision to admit the prescriptions with
Vázquez-Senti's authentication was not an abuse of its discretion.
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3. Vázquez-Senti's Testimony Regarding Other Defendants
During his cross-examination, appellant asked Vázquez-
Senti about benefits he was receiving from the government in
exchange for his testimony. Vázquez-Senti acknowledged that he was
held responsible for only 745 medically unnecessary prescriptions,
and appellant contrasted this number with the 20,000 that Vázquez-
Senti had admitted to writing. On redirect, the government
attempted to diffuse this impeachment by eliciting testimony about
Vázquez-Senti's co-defendants, showing that they had received
similar reductions even though they were not testifying. Over
appellant's objection, the district court allowed the government to
ask Vázquez-Senti if he knew the status of the charges against his
co-defendants. After Vázquez-Senti indicated that he did, the
government asked, "[a]re you aware as to whether or not they pled
guilty to 435 kilos of oxycodone, or they pled guilty to a lesser
amount?" Vázquez-Senti replied, "I believe it were [sic] to a
lower amounts." The government briefly alluded to these guilty
pleas again during its closing argument. In response to
appellant's objection, the court ruled that appellant had opened
the door on cross-examination to this redirect testimony by asking
Vázquez-Senti about the benefits he received because of his
cooperation.
Appellant now repeats his argument that admission of this
testimony was inappropriate and prejudicial. In defending the
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district court's ruling, the government emphasizes that the cross-
examination justified questions about the guilty pleas of Vázquez-
Senti's co-defendants because it referred to the separate criminal
case in which Vázquez-Senti and his co-defendants were convicted.
The government argues that it was entitled to show that all of the
co-defendants, not just Vázquez-Senti, pled guilty to lesser drug
quantities, and thus Vázquez-Senti did not receive any additional
benefit because of his testimony against appellant.
We have previously explained that "where a missing co-
defendant does not testify, . . . courts and prosecutors generally
are forbidden from mentioning that a co-defendant has either pled
guilty or been convicted." United States v. Ofray-Campos, 534 F.3d
1, 23 (1st Cir. 2008) (internal quotation marks omitted). This is
because "[a] defendant is entitled to have the question of his
guilt determined upon the evidence against him, not on whether a
codefendant or government witness has been convicted of the same
charge." Id. at 22-23 (quoting United States v. Dworken, 855 F.2d
12, 30 (1st Cir. 1988)) (internal quotation marks omitted).
Regardless of whether an absent co-defendant
has pleaded guilty or been convicted after
trial, the admission of such evidence not only
results in the danger that the jury will
improperly infer guilt by association, it also
significantly undercuts the defendant's right
to have a jury's verdict based only upon
evidence that is presented in open court and
is thereby subject to scrutiny by the
defendant.
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Id. at 23 (internal quotation marks omitted). Accordingly,
"[t]here is no need to advise the jury or its prospective members
that some one not in court, not on trial, and not to be tried, has
pleaded guilty. The prejudice to the remaining parties who are
charged with complicity in the acts of the self-confessed guilty
participant is obvious." Id. (internal quotation marks omitted).
In this case, the individuals whose guilty pleas were
revealed by the government's questioning were not co-defendants of
appellant, but the co-defendants of Vázquez-Senti. However, the
vast majority of the evidence against appellant concerned the
relationship between the two men. The guilty pleas of the
individuals indicted with Vázquez-Senti on charges similar to those
against appellant are plainly inadmissible. The government's
attempt to suggest this sort of guilt-by-association is clear in
its reminder to the jury during its closing argument. It told the
jury: "The doctor told you he was indicted with 21 other people,
including pharmacists. So [appellant] talks about how the
prescriptions aren't properly marked. You know what? Those
responsible for marking the prescriptions have already been dealt
with." In light of the fact that the government had elicited
testimony that Vázquez-Senti's co-defendants had pled guilty, this
argument was likely to appear as an attempt to suggest to the jury
that, just as those individuals were held responsible, now it is
appellant's turn.
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Furthermore, contrary to the government's argument,
appellant's questions on cross-examination concerning the benefits
of Vázquez-Senti's cooperation did not open the door to questions
about these guilty pleas. The government seems to take the
position that any time a defendant explores the benefits that a
cooperating witness obtained, it is entitled to introduce evidence
about other participants in the conspiracy and deals that they were
offered. However, the government offers no authority for this
problematic assertion and we find it meritless. Accordingly, the
court erred in permitting the government to elicit testimony
concerning the guilty pleas of Vázquez-Senti's co-defendants.
That error, however, was harmless. The government
presented overwhelming evidence of appellant's guilt at trial,
including: 1) extensive testimony from Vázquez-Senti concerning
appellant's role in the scheme to obtain drugs by means of
medically unnecessary prescriptions, 2) recordings of telephone
conversations between appellant and Vázquez-Senti concerning the
sale of prescriptions and the lists of names to be used in writing
prescriptions, 3) the patient lists provided by appellant to
Vázquez-Senti, 4) thousands of prescriptions written by Vázquez-
Senti that he testified were medically unnecessary, 5) testimony
concerning DEA surveillance of meetings between appellant and
Vázquez-Senti, and 6) testimony concerning the seizure of
prescription drugs from two individuals in the company of appellant
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immediately after a visit to one of the pharmacies at which the
medically unnecessary prescriptions were filled.
The inappropriate testimony, even coupled with the
government's reference to the guilty pleas in its closing argument,
is insignificant when considered against the totality of the
evidence presented at trial. Thus, we can conclude "with fair
assurance" that the jury's decision was not swayed by the
improperly admitted testimony. Walker, 665 F.3d at 231. The
error, therefore, was harmless. See United States v. Dunbar, 553
F.3d 48, 59 (1st Cir. 2009) ("The essential inquiry in harmless
error review is whether the improperly admitted evidence likely
affected the outcome of trial." (internal quotation marks
omitted)).
4. Cross-Examination of Vázquez-Senti
Appellant also argues that it was error for the court to
refuse to allow him to cross-examine Vázquez-Senti about charges
that were dismissed as part of the doctor's plea agreement. The
indictment against Vázquez-Senti included one conspiracy count,
seven distribution counts, and one forfeiture count. Vázquez-Senti
was permitted to plead guilty to only the conspiracy and forfeiture
counts. Appellant argues that dismissal of the distribution counts
was a benefit that he should have been able to use to impeach
Vázquez-Senti. He points out that the plea and cooperation
agreement entered into by Vázquez-Senti states that the doctor will
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not be charged with "any other crimes committed about which the
defendant has informed the United States." However, when appellant
attempted to elicit testimony from Vázquez-Senti concerning the
dismissed charges, the court upheld an objection and blocked this
line of questioning.
It is well established that "the right to cross-
examination is not unbridled." United States v. Rivera-Rodriguez,
617 F.3d 581, 591 (1st Cir. 2010) (quoting United States v. Molina,
407 F.3d 511, 523 (1st Cir. 2005)). We have explained that "[s]o
long as the trial court affords the defendant a fair opportunity
for effective cross-examination, it may impose reasonable
restrictions . . . [, and] [t]he trial court's latitude in shaping
such restrictions is 'wide.'" Id. (quoting Molina, 407 F.3d at
523). In particular, information concerning pending or dismissed
charges against a witness may be unfairly prejudicial. Where the
defense is permitted to cross-examine a witness regarding a
cooperation agreement with the government, the details of the other
charges may not be necessary to establish the potential for bias.
See United States v. Bunchan, 580 F.3d 66, 71 (1st Cir. 2009). The
ultimate question is whether "the jury is provided with sufficient
information concerning formative events to make a discriminating
appraisal of a witness's motives and bias." DiBenedetto v. Hall,
272 F.3d 1, 10 (1st Cir. 2001) (internal quotation marks omitted).
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Here, the jury was provided sufficient information to
make an informed judgment concerning Vázquez-Senti's motives and
potential bias. As noted, Vázquez-Senti acknowledged that he was
testifying in connection with a plea and cooperation agreement, and
the agreement was itself admitted into evidence. It guarantees
that Vázquez-Senti will not be prosecuted for other crimes about
which he informs the government, provides that he will be held
liable for only 745 of the more than 20,000 medically unnecessary
prescriptions that he wrote, and states that the government will
recommend a sentence of 108 months' incarceration, well below the
statutory maximum of twenty years. In short, there is no doubt
that the jury was aware of both Vázquez-Senti's incentive to
testify against appellant and the potential for bias. Accordingly,
it was not an abuse of discretion for the district court to limit
cross-examination regarding the dismissed charges.
5. Failure to Provide Reports of Investigation
Appellant argues that the district court erred by failing
to order the government to provide him two Reports of Investigation
("ROI") prepared in connection with interviews of Vázquez-Senti and
the rough notes taken by investigators during those interviews.
There were at least three such interviews and three ROIs. At
trial, appellant asked the district court to review the ROIs in
camera and determine if he was entitled to receive them under the
Jencks Act, 18 U.S.C. § 3500. The district court reviewed the ROIs
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and determined that two of the three did not have the
characteristics of Jencks material, as they were not verbatim
records of the interviews and not even prepared on the same days as
the interviews they documented. However, it did order the
government to turn over the third ROI, which was prepared on the
day of the interview. On appeal, appellant asks that we review the
two ROIs withheld and determine whether they should have been
turned over pursuant to the Jencks Act.
The Jencks Act generally requires that any "statement" of
a government witness relating to the subject matter of that
witness's testimony be turned over to the defendant. 18 U.S.C.
§ 3500(b). The Act defines "statement" as:
(1) a written statement made by said witness
and signed or otherwise adopted or approved by
him;
(2) a stenographic, mechanical, electrical, or
other recording, or a transcription thereof,
which is a substantially verbatim recital of
an oral statement made by said witness and
recorded contemporaneously with the making of
such oral statement; or
(3) a statement, however taken or recorded, or
a transcription thereof, if any, made by said
witness to a grand jury.
Id. § 3500(e). We have explained that this definition does not
require that a witness write the statement himself, but that notes
taken by an investigator during an interview may qualify if read
back to the witness and adopted. United States v. Gonzalez-
Melendez, 570 F.3d 1, 4 (1st Cir. 2009) (per curiam). "Where a
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defendant requests discovery of potential Jencks material, our
precedent requires the district judge to conduct an independent
investigation of any such materials and determine whether these
materials are discoverable under the Jencks Act." Id. at 3. This
independent investigation can take the form of an in camera review
of the documents or an evidentiary hearing to take testimony from
the witness who provided the purported "statement." Id. at 3 n.2.
On appeal, a district court's decision on a Jencks Act claim is
reviewed for abuse of discretion, United States v. Gonzalez-
Melendez, 594 F.3d 28, 35 (1st Cir. 2010), though we review
underlying legal conclusions de novo and findings of fact for clear
error, id.
In this case, the district court conducted the requisite
investigation, as have we, of the ROIs in question. Like the
district court, we do not find the ROIs to be statements within the
meaning of the Jencks Act. Contrary to appellant's suggestion, the
ROIs are not substantially verbatim accounts of the interviews with
Vázquez-Senti, nor do they qualify as "statements" under any other
provision of the Jencks Act. 18 U.S.C. § 3500(e). The ROIs are
short bullet-point summaries of the interviews of Vázquez-Senti,
and there is no indication that they were ever shown or read to
Vázquez-Senti, or adopted by him.
Appellant argues that even if he was not entitled to the
ROIs, the district court should have also reviewed the rough notes
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taken during the interviews with Vázquez-Senti, which served as the
basis for the ROIs. At trial, Vázquez-Senti testified that an
agent took hand-written notes during the interviews, but that this
note-taking was sporadic and only occurred in connection with
"some" of his answers. He also testified that he never saw what
the agent wrote down and that the agents did not review his answers
or their notes with him. Given this testimony, there was plainly
no opportunity for Vázquez-Senti to adopt the rough notes as his
own statements, nor could the rough notes have been a
"substantially verbatim" recording or transcription of the
interviews. See id. § 3500(e)(1) & (2). Accordingly, it was not
an abuse of discretion for the district court to decline to order
the government to produce these documents to appellant as Jencks
material.3
6. Denial of the Rule 29 Motion
At the conclusion of his trial, appellant made a motion
pursuant to Federal Rule of Criminal Procedure 29 for a judgment of
acquittal. Although the motion is styled as challenging the
sufficiency of the evidence supporting his conviction, it actually
3
Appellant is correct that the district court identified an
incorrect legal standard when it stated that appellant would be
entitled to the ROIs only if "the result of the proceeding would
have been different if the evidence had been disclosed." As
appellant noted, this is an appellate legal standard unrelated to
the identification of Jencks material. However, for the reasons
stated, appellant is not entitled to the ROIs under the Jencks Act
because they do not constitute "statements" within the meaning of
the Act.
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challenges the drug quantity determination made by the jury.4
According to appellant, this determination was almost entirely
based on the five lists of names that Vázquez-Senti testified were
used to write prescriptions, and he argues that there was
insufficient evidence to link him to the lists. In particular, he
argues that: 1) the lists referred to in recorded telephone
conversations were different from those introduced as evidence, 2)
Vázquez-Senti testified that some of the lists appeared to be
written in the handwriting of an ex-wife of appellant, and 3) there
was inconsistent evidence concerning the use of the lists because
Vázquez-Senti testified that the lists were only used for
prescriptions filled at one of the three pharmacies, but many of
the prescriptions using names from the lists were filled at the
other two. Given that these lists were the link tying him to the
2,700 prescriptions for which he was ultimately held liable,
appellant argues that the court erred in denying his motion for a
judgment of acquittal.
We review a district court's denial of a Rule 29 motion
de novo, "taking the evidence in the light most favorable to the
government and making all reasonable inferences in its favor."
4
For the purpose of sentencing after a guilty verdict, the
court will often determine the amount of drugs for which a
defendant will be held liable. However, it is not unprecedented
for the jury to be asked to make a specific drug quantity
determination by means of a special verdict form. See United
States v. Casas, 356 F.3d 104, 127-28 (1st Cir. 2004).
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United States v. Giambro, 544 F.3d 26, 29 (1st Cir. 2008). Such an
analysis requires us to "assess whether a reasonable factfinder
could have concluded that the defendant was guilty beyond a
reasonable doubt." United States v. Fernández-Hernández, 652 F.3d
56, 67 (1st Cir. 2011).
We reject appellant's argument. At best, he identifies
minor inconsistencies in witness testimony which do not outweigh
the strong evidence that he did provide the lists to Vázquez-Senti.
Given that appellant and his ex-wife worked together to obtain
prescription drugs for some time, the fact that the lists may be in
his ex-wife's handwriting is consistent with appellant's alleged
role in the conspiracy and the attribution of drugs obtained using
prescriptions written in names from those lists to him.
Furthermore, although Vázquez-Senti testified at one
point that the lists were used at only one of the pharmacies, later
that same day he testified that he did not know where the
prescriptions were taken to be filled, allowing for the possibility
that some of the prescriptions were taken to other pharmacies.
Additionally, during the course of the investigation, appellant was
observed with several individuals whose names appeared on the
lists. Most importantly, Vázquez-Senti testified that appellant
provided him the lists and instructed which list to use at a given
time, and that he gave appellant the prescriptions he wrote using
the lists. This testimony was corroborated by the admission of a
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recorded phone conversation between appellant and Vázquez-Senti
discussing the use of these lists.5 In sum, there was ample
evidence to connect appellant to the patient lists and to support
use of these lists to determine the drug quantity attributable to
him. Therefore, the court was correct to deny appellant's Rule 29
motion.
B. Sentencing Issues
1. Drug Equivalency Ratios
The district court sentenced appellant based on a
quantity of drugs determined by use of equivalency tables
established by the sentencing guidelines. Appellant argues on
appeal, as he did below, that the equivalency ratio provided for
oxycodone is unfairly high and creates unwarranted disparities
between defendants sentenced for offenses involving oxycodone and
morphine. The sentencing guidelines instruct that, when
determining the base level for an offense, one gram of oxycodone is
equivalent to 6,700 grams of marihuana, and one gram of morphine is
equivalent to 500 grams of marihuana. USSG § 2D1.1 cmt. n.10(D).
In an objection to the Presentence Report, appellant argued that
the court should use the 500-gram equivalency for morphine because
5
Appellant points to this conversation as evidence that he
did not prepare the lists because Vázquez-Senti states during the
conversation, "Remember that I did list 2, the one that he is
supposed to get . . . [a]nd the list 3." However, read in context,
this statement may be understood to mean that Vázquez-Senti had
recently written prescriptions using lists two and three, not that
he wrote the lists.
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the 6,700-gram equivalency for oxycodone created an unwarranted
disparity between those convicted of offenses involving the two
drugs. In support, he notes that oxycodone is a morphine
derivative and that morphine is more potent and more addictive than
oxycodone. He further argues that the court committed a procedural
error by failing to recognize that it had discretion, pursuant to
Kimbrough v. United States, 552 U.S. 85 (2007), to impose a variant
sentence based on policy disagreements with the guidelines. See
United States v. Stone, 575 F.3d 83, 89 (1st Cir. 2009) ("[A]fter
Kimbrough, a district court makes a procedural error when it fails
to recognize its discretion to vary from the guideline range based
on a categorical policy disagreement with a guideline.").
These arguments are without merit. The court explicitly
acknowledged its authority to impose a variant sentence based on a
policy disagreement with the guidelines. At sentencing, appellant
invoked Kimbrough and raised what he described as a "fairness
argument" based on the respective equivalencies for oxycodone and
morphine. The court agreed that it had discretion under Kimbrough,
and asked appellant to "[e]xplain to me why this is a fairness
argument." In fact, at one point appellant stated, "Let's be
clear. You have the authority to disagree [with the guidelines
equivalency for oxycodone]," to which the court responded, "Of
course. . . . But why should I disagree?" Given this exchange, it
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is clear that the court was aware that it had discretion to vary
from the guidelines range based on a policy disagreement.
Although our review ends here, it is worth noting that
the exceptionally high equivalency ratio for oxycodone is the
product of a 2003 amendment to the guidelines. See Amendment 657,
USSG app. C, vol. II at 397 (2003). As we explained in United
States v. Ekasala, 596 F.3d 74 (1st Cir. 2010) (per curiam):
Amendment 657 changed the marijuana equivalent
for oxycodone in two respects. First, it
based the equivalent on the amount of actual
oxycodone involved rather than on the gross
weight of the pills containing oxycodone.
Second, it made 1 gram of oxycodone equivalent
to 6,700 grams of marijuana, rather than 1
gram of pill weight equivalent to 500 grams of
marijuana.
Id. at 75 n.1. Thus, unlike for many prescription drugs, when
determining the guidelines range for an oxycodone-related offense,
only the weight of the active ingredient (oxycodone) is used, not
the full pill weight. This change was made because of
proportionality issues arising when "pills containing greatly
differing amounts of actual oxycodone had the same marijuana
equivalent and, hence, the same base offense level." Id. at 76.
In contrast, in determining the guidelines range for a
morphine-related offense, the full weight of the pill or other
mixture including morphine is used, regardless of potency. See
USSG § 2D1.1(c) n.(A) & cmt. n.1, n.10(D). Accordingly, the
apparent disparity caused by the multipliers used for oxycodone and
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morphine is largely neutralized by the use of a larger base weight
for morphine. See United States v. Vigil, 832 F. Supp. 2d 1304,
1319, 1327-30 (D.N.M. 2011) (discussing at length the guidelines
treatment of oxycodone and finding no disparity in treatment of
oxycodone and morphine).
2. Acceptance of Responsibility
Appellant argues that the court erred in failing to grant
him a two-level reduction in offense level pursuant to USSG
§ 3E1.1(a), which allows such a reduction if "the defendant clearly
demonstrates acceptance of responsibility for his offense." Id.
Appellant argues that he fully accepted responsibility for his
offense, pointing out that he detailed his role in the scheme in a
series of interviews with authorities and even offered to cooperate
in the investigation of others. He asserts that he rejected the
offered plea agreement only because he felt he was being treated
unfairly as compared to others convicted in the same scheme, all of
whom were offered deals calling for a shorter period of
incarceration. He argues that insisting on going to trial under
these circumstances is not incompatible with the type of acceptance
of responsibility called for by USSG § 3E1.1(a).
A sentencing court's determination of whether a defendant
accepted responsibility is reviewed for clear error. United States
v. Garrasteguy, 559 F.3d 34, 38 (1st Cir. 2009). In order to
qualify for a reduction pursuant to USSG § 3E1.1(a), "a defendant
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must truthfully admit or not falsely deny the conduct comprising
the conviction, as well as any additional relevant conduct for
which he is accountable." Garrasteguy, 559 F.3d at 38. Given this
requirement, "defendants who proceed to trial and put the
government to its proof normally do not qualify for any reduction
for acceptance of responsibility . . . [, and] proceeding to trial
creates a rebuttable presumption that no credit is available." Id.
at 38-39 (citations omitted). However, the guidelines provide that
in "rare situations" the reduction may be available to those who go
to trial. USSG § 3E1.1 cmt. n.2. Such circumstances include, "for
example, where a defendant goes to trial to assert and preserve
issues that do not relate to factual guilt (e.g., to make a
constitutional challenge to a statute or a challenge to the
applicability of a statute to his conduct)." Id.
This case does not present one of the "rare situations"
in which going to trial is compatible with a § 3E1.1(a) reduction.
While it is true that appellant initially acknowledged his conduct
to investigators, he did not do so at trial. His defense at trial
was not based on issues other than his factual guilt; rather, he
disputed every aspect of the government's case and denied his role
in the conspiracy. Given this conduct, his reasons for rejecting
the government's offered plea agreement are immaterial, and the
court did not err in deciding that his decision to go to trial and
deny his factual guilt disqualified him from receiving a § 3E1.1(a)
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reduction. See United States v. González-Vélez, 587 F.3d 494, 509
(1st Cir. 2009) (stating that "the failure of plea negotiations is
generally not . . . a circumstance" permitting a § 3E1.1(a)
reduction for a defendant who chooses to go to trial).
3. Consideration of § 3553(a) Factors
Although appellant's final argument occasionally seems to
be a claim that the 240-month sentence imposed was substantively
unreasonable, this claim is not actually raised. Rather, he
focuses on two claims of procedural error.6 First, he argues that
the court erred in determining that it could not consider the
extent of his cooperation with the government as a basis for a
downward variance in the absence of a USSG § 5K1.1 substantial
assistance motion from the government. Second, he asserts that the
court erred in failing to explain why it rejected an argument for
a lower sentence based on the disparity between the sentences
imposed on him and others convicted as part of the same scheme.
See United States v. Dávila-González, 595 F.3d 42, 47 (1st Cir.
2010) (noting that procedural error includes "failing to consider
6
We draw a distinction between claims of procedural error in
sentencing, such as "failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence," United States v. Martin, 520 F.3d 87,
92 (1st Cir. 2008) (quoting Gall v. United States, 552 U.S. 38, 51
(2007)), and claims of substantive unreasonableness, which
challenge the reasonableness of the sentence imposed given "the
totality of the circumstances," id.
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the 18 U.S.C. § 3553(a) factors" or "failing to adequately explain
the chosen sentence").
With regard to appellant's first argument, § 3553(a)(1)
instructs a sentencing court to consider the "history and
characteristics of the defendant," without limitation. As the
Second Circuit has explained, "[t]his sweeping provision presumably
includes the history of a defendant's cooperation and
characteristics evidenced by cooperation." United States v.
Fernandez, 443 F.3d 19, 33 (2d Cir. 2006). Furthermore, nothing in
the guidelines suggests that a court's discretion to consider all
of a defendant's relevant conduct under § 3553(a) is constrained by
the government's decision not to file a § 5K1.1 motion.
Accordingly, we join our sister circuits in sensibly holding that,
in determining the appropriate sentence within the guidelines, or
in varying from the guidelines, a sentencing court has discretion
to consider the defendant's cooperation with the government as a
§ 3553(a) factor, even if the government has not made a USSG
§ 5K1.1 motion for a downward departure. See United States v.
Massey, 663 F.3d 852, 858 (6th Cir. 2011); United States v.
Leiskunas, 656 F.3d 732, 737 (7th Cir. 2011); Fernandez, 443 F.3d
at 33; United States v. Doe, 398 F.3d 1254, 1260-61 (10th Cir.
2005); Hutchison, et al., Federal Sentencing Law and Practice §
5K1.1, cmt. 2 n.3 (2012) (noting that although a court may not
grant a downward departure for substantial assistance without a
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motion from the government, "[p]ost-Booker . . . sentencing courts
may weigh a defendant's assistance or attempts to assist the
government as part of the § 3553(a) analysis and vary from the
Guidelines if appropriate"). No circuit court has held to the
contrary.
However, although appellant's legal argument is correct,
we detect no error in the district court's assessment of the
§ 3553(a) factors. It is true that, during appellant's sentencing
hearing, the court initially expressed doubt that it could grant a
downward variance based on his cooperation absent a motion pursuant
to USSG § 5K1.1. But the court offered appellant the opportunity
to "convince me otherwise." After appellant identified cases from
other circuits holding that a sentencing court has such discretion,
the court stated, "I understand your argument. Thank you." It
went on to hear extensive argument from appellant concerning his
cooperation with the government, and also asked the government to
address the issue of his cooperation on the merits. Accordingly,
the record indicates that the court understood that it had the
discretion to consider the extent of appellant's cooperation in
fashioning the appropriate sentence.
Appellant's argument concerning the alleged failure of
the district court to explain its rejection of his sentencing
disparity argument also fails. At the sentencing hearing,
appellant had ample opportunity to elaborate on the disparity
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argument, which had already been raised in his objections to the
Presentence Report, and he did so. The gist of this argument was
that the others who pled guilty as part of the scheme in which he
was involved received far lower sentences. While that is so,
appellant ignores important differences between his circumstances
and those of the other individuals he identifies. Appellant was
considered a leader in the conspiracy and had a more extensive
criminal history than some of the other participants. Given that
"a sentencing court is not required to address frontally every
argument advanced by the parties, nor need it dissect every factor
made relevant by 18 U.S.C. § 3553," United States v. Turbides-
Leonardo, 468 F.3d 34, 40-41 (1st Cir. 2006), the court did not err
by failing to explain why it rejected appellant's disparity
argument, especially where that argument was so obviously
meritless.
IV.
For the foregoing reasons, we find appellant's arguments
without merit. Although the district court did err in admitting
testimony about the guilty pleas of appellant's former co-
defendants, that error was harmless. Accordingly, the judgment is
affirmed.
So ordered.
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