United States v. Diaz Arias , 717 F.3d 1 ( 2013 )

United States Court of Appeals
For the First Circuit
No. 11-2271
UNITED STATES OF AMERICA,
Appellee,
v.
HIPÓLITO DÍAZ-ARIAS, a/k/a HIPÓLITO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, U.S. District Judge]
Before
Torruella, Boudin,* and Thompson,
Circuit Judges.
John F. Cicilline, for appellant.
Theodore B. Heinrich, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney, was on brief for
appellee.
April 29, 2013
*
Judge Boudin heard oral argument in this matter and participated
in the semble, but he did not participate in the issuance of the
panel's opinion in this case. The remaining two panelists therefore
issued the opinion pursuant to 28 U.S.C. § 46(d).
TORRUELLA, Circuit Judge. Following a four-day jury
trial, Defendant-Appellant Hipólito Díaz-Arias was found guilty of
conspiring to distribute cocaine, in violation of sections
841(a)(1) and 846 of Title 21 of the United States Code. He
received a sentence of 120 months' imprisonment to be followed by
a supervised release term of five years. Díaz-Arias now appeals
his conviction and sentence, claiming that the district court erred
in (1) permitting a non-expert witness to identify him as one of
the speakers in several wiretap recordings, which the government
introduced at trial to establish his involvement in the conspiracy;
(2) allowing the jury to receive the transcripts of those
recordings, which were labeled with his first name, "Hipólito," in
order to identify him as one of the speakers; (3) allowing the
government to introduce evidence about his co-defendants' unrelated
drug activity; (4) declining to give the jury a specific
instruction regarding any animosity they may have towards his race
and ethnicity; (5) refusing to allow the jury to make a
determination as to the specific drug quantity that could be
attributed to him in the conspiracy; and (6) finding, by a
preponderance of the evidence, that he was involved with five or
more kilograms of cocaine. Finding no error in the district
court's actions, we affirm its judgment in all respects.
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I. Background
A. The Indictment and Investigation
On July 27, 2005, Díaz-Arias and twelve other co-
defendants were charged pursuant to a four-count, first superseding
indictment issued by a grand jury in the District of Massachusetts.
Díaz-Arias was only charged in Count One of the indictment, which
alleged that he participated in a conspiracy to distribute at least
five kilograms of cocaine, from January to October 2004, at various
locales within the District of Massachusetts. Among the other
defendants who were charged in Count One were Manuel Pinales,
Rafael Heredia,1 Richard Pena and Tajh M. White. The following
facts are recounted in the light most favorable to the verdict.
United States v. Poulin, 631 F.3d 17, 18 (1st Cir. 2011).
The charges brought against Díaz-Arias arose out of an
investigation conducted by the Drug Enforcement Administration
("DEA") during the summer and fall of 2004. The focus of the
investigation was an organization involved in the distribution of
large quantities of cocaine in the Boston area. Manuel Pinales was
identified as the leader of the organization, receiving cocaine in
quantities of between 30 and 80 kilograms at a time from a source
of supply in the Dominican Republic. Pinales and his cohorts then
1
Heredia was also known as Luis Clas or "Cuba." During Díaz-
Arias' trial, the government referred to him as Luis Clas. On
appeal, both parties refer to him in their briefs as Heredia. We
do the same here.
-3-
distributed these drugs to customers in the Boston, New Bedford and
Lowell areas of Massachusetts, as well as to customers in Rhode
Island. According to the results of the investigation, the core
members of the Pinales organization were Heredia, Rodríguez and
Pena.
The DEA investigation relied on court-authorized wiretaps
on phones belonging to Pinales, Rodríguez, Pena and Heredia. The
evidence submitted at trial against Díaz-Arias consisted primarily
of recordings of conversations between Pinales, Pena, Heredia and
a man referred to as "Hipólito," whom the government later
identified as Díaz-Arias. The government also relied on several
"drug ledgers" that were seized on October 8, 2004, pursuant to
search warrants executed on 115 Navarre Street, where Heredia
maintained an inventory of cocaine, and at another location known
as the "Park Avenue Market," a grocery store run by Pinales. The
government's position at trial was that the ledgers linked Díaz-
Arias (referred to in the ledgers as "Hipólito" or "H.P.") with
several kilograms of cocaine and thousands of dollars paid or owed
to the Pinales organization. The wiretap recordings, which the
government also used to prove that Díaz-Arias was a regular
customer of the Pinales organization, are discussed in more detail
below.
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B. The Wiretapped Conversations
In July 2004, law enforcement agents began intercepting
several telephone calls between Hipólito, Pinales, Pena and
Heredia. These telephone calls depicted Hipólito attempting to
broker several drug transactions with Pinales, with Hipólito asking
Pinales to "give me some stuff" and later reminding Pinales "I owe
you seven and a half." The intercepted conversations also revealed
that the parties spoke in code, referring to kilograms of cocaine
as "cars" and money as "tickets."
The low point for Hipólito came in the final days of
September, when one of his planned cocaine transactions with
Pinales went awry. It all began on September 28, when agents
intercepted a telephone call where Hipólito told Pinales the
following: "so, tomorrow, I am going to send the guy over there
. . . to bring the tickets, the little tickets, yes, and so you
give him that." Pinales responded, "[a]lright . . . [t]ell him to
call me, so that he meets up with Viejo . . ."2
The next day, at 11:47 a.m., Alex Hernández, Hipólito's
courier, called Pinales and said: "I am Hipólito's guy. I will, I
am going to call you . . . in a couple of minutes, do you hear?"
Pinales told Hernández that this was fine, but gave him another
2
Trooper Cepero testified that, over the course of the
investigation, he concluded that "Viejo," which in this context
translates into English as "Old Man," was a reference to either
Heredia or Pena. In this particular call, the government posited
that Pinales was referring to Heredia.
-5-
phone number and asked him to "[c]all him there." An hour later,
Hernández placed a call to the phone number that Pinales gave him,
which turned out to belong to Heredia. Hernández again identified
himself as "Hipólito's guy," and Heredia instructed him to "come by
here, by near here, by Hyde Park," where the "little store"3 was
located. Hernández told Heredia that he would stop by there to
"pick up a pair of pants." Heredia then called Pinales to ask what
he should give to Hernández, to which Pinales responded "the usual"
or "the complete one." Massachusetts State Trooper Jaime Cepero,
who was eavesdropping on these calls while sitting in a wire room,
alerted surveillance officers that there was a person heading to
the Park Avenue Market to meet with Heredia, and that said person
was going to be receiving a kilogram of cocaine.
At 1:00 p.m., several law enforcement officers, including
DEA Task Force Agent Kevin McDonough, were conducting surveillance
around the Park Avenue Market. Twenty minutes later, McDonough
observed Heredia come out of the Park Avenue Market, wearing an
unzipped jacket. As Heredia stood outside, a red Mustang pulled
over next to him, and he began to talk with the driver. At that
point, Heredia entered the vehicle through the passenger door, and
the vehicle then proceeded down Hyde Park Avenue. It stopped just
a few blocks away from 115 Navarre Street. Heredia emerged from
the vehicle and entered a residence at that location. One or two
3
This is apparently a reference to the Park Avenue Market.
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minutes later, Heredia exited the residence, this time with his
jacket zipped up and his hands inside his pockets. Agent McDonough
perceived him to be holding something around his stomach area.
Heredia then traveled to the Mustang, reconvened with the driver,
and together they headed back to the area of the Park Avenue
Market. Now back there, Heredia stepped out of the vehicle, and
the vehicle continued on its way. The officers, including Agent
McDonough, proceeded to follow it in their unmarked cars.
The red Mustang made its way through several streets in
Boston, eventually embarking on Interstate 93, northbound. As
Agent McDonough was shadowing the vehicle, Trooper Cepero, who was
still in the wire room, contacted a nearby Massachusetts State
Police barracks to arrange for a marked police cruiser to stop the
Mustang. Trooper John Costa and Sergeant McCarthy, who were in the
area driving separate police cruisers, spotted the Mustang as it
was approaching the town of Wilmington, Massachusetts and ordered
it to pull over onto the hard shoulder lane.4 They identified the
driver as Alex Hernández and conducted a search of the vehicle
using trained canines. The canines sniffed around the vehicle and
alerted the officers to an area under the rear of the passenger
seat; the officers inspected the floor around this area and found
a possible hidden compartment. Hernández was placed under arrest,
4
Trooper Costa testified that, at the time, the Mustang was
traveling over the speed limit and was following the vehicle in
front of it too closely.
-7-
and the Mustang was towed to the Andover barracks, where an
inspection of the hidden compartment yielded a kilogram of cocaine.
As time passed, Hipólito grew anxious awaiting
Hernández's arrival. At 3:31 p.m., he called Pinales and asked
"[a]t what time did you guys give the car to the guy?" Pinales
replied, "[a] while ago . . . [i]s he not answering the phone?"
"No, he is not answering now . . . [y]ou know how that is," said
Hipólito. A worried Pinales then told Hipólito "[o]h, damn . . .
[b]ad sign . . . [t]here are problems there, bro . . . I hope . . .
God willing there are not . . ." The two agreed that they would
wait and see what happened to Hernández, with Hipólito promising to
call Pinales as soon as he had news.
At 4:57 p.m., Hipólito finally called Pinales and told
him: "[t]hey caught the man, dude." Dismayed, Pinales asked where,
and Hipólito replied, "in Andover." Hipólito then told Pinales
that he was going to call someone to figure out what was going on.
Pinales and Hipólito spoke again on the phone at 7:39 p.m. Pinales
warned Hipólito that "[i]t seems the friend is singing" to the
police, and Hipólito advised Pinales to change his phone numbers.
Almost two hours later, Hipólito called Pinales and told him that
he had spoken with Hernández's lawyer, who confirmed that the
police had "caught him with that, yes." Several other phone
conversations between Hipólito and Pinales were intercepted on the
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following day. Those recordings mostly featured discussions
concerning the amount of Hernández's bail.
C. Jacqueline Fresa
During trial, Trooper Costa testified that on October 2,
2004, he received a phone call from a woman who identified herself
as Jacqueline Fresa. He testified that Fresa expressed anger at
the arrest of Hernández, and that she complained about receiving
threats, because "somebody had said that she was the informant that
had told the police about Hernández" and therefore was responsible
for his arrest. Fresa denied being the informant, but admitted she
knew Hernández.
On the same day, Hipólito told Pinales over the phone
that, "[t]he mother of my daughters . . . I got told that . . . she
screwed me over." "But which one of them, who?" asked Pinales.
"The one who was in jail, who came out," replied Hipólito.
Hipólito told Pinales that, shortly before Hernández was arrested,
"the mother of [his] daughters" had called Hernández to find out
where he was. Hipólito then claimed that, as soon as Hernández
told her his location, "like five hundred showed up . . . she is a
rat[,] man . . ." A few days later, on October 7, Hipólito called
Pinales again and told him that the mother of his daughters had
filed a restraining order against him.
During the trial, the district court admitted into
evidence certified birth records from the city of Haverhill,
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Massachusetts, which showed that Díaz-Arias and Fresa were in fact
the parents of two daughters. In addition, the district court
admitted a certified record from the Haverhill District Court,
which reflected that on October 4, 2004, Fresa had filed a
restraining order against Díaz-Arias. Thus, the government claims
that Fresa was the one Hipólito referred to as "the mother of [his]
daughters," and that this was conclusive evidence proving that
Hipólito was in fact Díaz-Arias.5
D. Arrest and Sentencing
Díaz-Arias was arrested on October 22, 2004, in Lowell,
Massachusetts, while using the name of Carlos Santiago. He was
also known to use other aliases, such as "Junio Humberto Santana
Ortiz," "Raphael Ortiz Santino," "Guillermo Sánchez" and "José
Nieves." Díaz-Arias was subsequently released on bail, but became
a fugitive when he was indicted on the federal drug charge. On
June 11, 2009, he was arrested in Lynn, Massachusetts. At that
time, the officers found Díaz-Arias to be in possession of a
Dominican passport in the name of Rafael Bienvenido Reynoso
5
Fresa also testified at trial and identified Díaz-Arias as the
father of two of her three daughters. She stated that she knew
Hernández, that she was supposed to go out with him on the day he
was arrested, and that after learning of his arrest, she called the
Andover police station to complain about people commenting that she
was the informant who helped them apprehend Hernández. Fresa
further testified that, later on, she asked Hipólito to "beat up"
Hernández in retribution for Hernández accusing her of being the
snitch. When Hipólito refused, Fresa took out a restraining order
against him.
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Hernández and a Social Security Card in the name of Rafael Matos
Bruno.
The jury found Díaz-Arias guilty of participating in the
charged conspiracy. At sentencing, the district court found, by a
preponderance of the evidence, that he was responsible for at least
five kilograms of cocaine and therefore subject to a mandatory
minimum sentence of ten years. 21 U.S.C. § 841(b)(1)(a)(ii)
(2006). The court determined that the applicable guideline range
for Díaz-Arias, taking into account an offense level of 32 and a
criminal history category of III, was 151 to 188 months. The court
nevertheless varied downward to reflect the culpability of Díaz-
Arias in comparison to the other defendants in the case and
sentenced Díaz-Arias to 120 months' imprisonment to be followed by
five years of supervised release. This timely appeal followed.
II. Discussion
A. The Voice Identification Testimony
Díaz-Arias' main argument in this appeal is that the
district court abused its discretion when it allowed the government
to introduce the lay opinion testimony of Trooper Cepero, who
identified Díaz-Arias as the speaker in the intercepted telephone
conversations. He contends that this testimony ran afoul of
Federal Rule of Evidence 701 for lay opinion testimony because it:
(1) was not helpful to the jury; (2) was not based on personal
knowledge; (3) constituted expert testimony masked as lay opinion;
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and (4) was factually flawed. The following background on Trooper
Cepero's testimony at trial will assist us in sorting through these
arguments.
1. Background
Trooper Cepero is a trooper with the Massachusetts State
Police, where he has served for approximately 30 years, primarily
in narcotics enforcement. At trial, he testified that he has
fulfilled many roles there, including working undercover, serving
search warrants, doing surveillance and serving as affiant on
wiretaps. He stated that he has participated in hundreds of
investigations, including over 30 that involved wiretaps. He was
born in Puerto Rico, and Spanish is his native language; he
continues to speak Spanish fluently and uses it in connection with
his duties as a state trooper. For example, he has used his
Spanish skills in several wiretap investigations involving Spanish
speakers. He testified that he is familiar with individuals from
the Dominican Republic (where Díaz-Arias is from) and their
speaking intonations and accents.
Trooper Cepero testified that he was a co-case agent on
the DEA investigation that led to Pinales' and Díaz-Arias' arrests.
During most of the investigation, Cepero was stationed in a "wire
room," overseeing and reviewing the audio of the intercepted
telephone calls from the day before, as well as the transcripts and
summaries of those calls. Whenever a phone call was made to or
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from an intercepted phone line, the call would be recorded via
computer onto an optical disk that would contain the audio of the
call, the data furnished by the phone company, and any additional
comments provided by the officer monitoring the call. In
preparation for trial, Trooper Cepero copied the recorded calls
that involved Hipólito onto a separate optical disk and reviewed
the transcripts and translations of those recorded conversations.
The parties do not seem to dispute that the transcripts accurately
reflected the words spoken among the speakers, which were
translated from Spanish into English.
During trial, the government introduced into evidence
Exhibits 26 and 27, which featured the recorded telephone calls
that involved "Hipólito" and the transcripts of those calls.
Trooper Cepero testified that he had reviewed all of those calls
with their companion transcripts, and assured that the transcripts
accurately identified the speakers and the words spoken. He
testified that he spent approximately "five or six hours" listening
to the calls in preparation for trial.
In order to adequately compare the voice of "Hipólito" in
Exhibits 26 and 27 with the voice of Díaz-Arias, the prosecution
introduced Exhibit 41, a compact disk that contained at least 16
recorded telephone calls, which the parties stipulated were "recent
recordings of the defendant Hipólito Díaz-Arias' voice obtained by
lawful means." Some of the recordings included conversations
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between Díaz-Arias and Fresa. Trooper Cepero testified that he
spent about three hours listening to the calls in Exhibit 41 in
their entirety and went over some of them a couple of times. In
preparation for trial, he compared the voice of Díaz-Arias on
Exhibit 41 with the voice of Hipólito on Exhibit 27. In making
that comparison, Trooper Cepero testified that he took into account
several factors, including: (1) things that were unique to the
voice, such as greetings, laughter, tone, manner and speech
pattern; (2) certain expressions that could not have been
rehearsed; (3) certain expressions that were indicative of
something the speaker did all the time; and (4) if the speaker
used, or responded to, his name, and whether the speaker referenced
to having spoken with someone else beforehand. Based on these
factors, Cepero testified that, in his opinion, the voices belonged
to "the same gentleman, same voice." Díaz-Arias lodged an
objection to this testimony, but it was overruled by the district
court. He now renews his objection to the admission of the lay
opinion testimony before us, which we review for manifest abuse of
discretion. United States v. Valdivia, 680 F.3d 33, 50 (1st Cir.
2012).
2. Helpfulness to the Jury
Díaz-Arias claims that the proffered testimony by Trooper
Cepero was not helpful to the jury because the jurors were just as
capable as Trooper Cepero of comparing the voice of Hipólito with
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that of Díaz-Arias. We disagree. In order for lay opinion
testimony to be admissible under Federal Rule of Evidence 701, the
testimony must be "helpful to clearly understanding the witness'
testimony or to determining a fact in issue." Fed. R. Evid.
701(b); United States v. Flores-de Jesús, 569 F.3d 8, 20 (1st Cir.
2009).
Lay opinion testimony will not be "helpful" to the jury
"when the jury can readily draw the necessary inferences and
conclusions without the aid of the opinion." United States v.
Sanabria, 645 F.3d 505, 515 (1st Cir. 2011) (quoting Lynch v. City
of Boston, 180 F.3d 1, 17 (1st Cir. 1999))(emphasis added). The
"nub" of this "helpfulness" requirement is "to exclude testimony
where the witness is no better suited than the jury to make the
judgment at issue, providing assurance against the admission of
opinions which would merely tell the jury what result to reach."
United States v. Meises, 645 F.3d 5, 16 (1st Cir. 2011) (internal
quotations and citations omitted); see also United States v.
Vázquez-Rivera, 665 F.3d 351, 361 (1st Cir. 2011) ("[T]estimony,
the 'sole function' of which is 'to answer the same question that
the trier of fact is to consider in its deliberations . . . [m]ay
be excluded as unhelpful.'") (quoting 4 J. Weinstein & M. Berger,
Weinstein's Federal Evidence § 701.05 (Joseph M. McLaughlin, ed.,
Matthew Bender 2d ed. 2011)). We are mindful that lay opinions
which make an assertion as to the ultimate issue in a case "will
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rarely meet the requirement of Rule 701(b), since the jury's
opinion is as good as the witness's." United States v. Rodríguez-
Adorno, 695 F.3d 32, 39 (1st Cir. 2012) (internal quotations and
citation omitted).
Díaz-Arias contends that Trooper Cepero's opinion was
just as good as the jury's because Trooper Cepero had never spoken
with Díaz-Arias in person. Furthermore, the testimony in question
went directly to the ultimate issue: it asserted that Díaz-Arias
was the speaker in the recordings, thus identifying him as the
guilty party and leaving no room for the jury to draw its own
conclusions as to what the evidence established. The government,
for its part, argues that Trooper Cepero's testimony was helpful to
the jury because, as a native Spanish speaker who is familiar with
the intonations and accents of people from the Dominican Republic,
Trooper Cepero possessed particularized knowledge which may have
proven helpful to a reasonable juror in making a voice comparison
of a native Spanish speaker. The government calls our attention to
United States v. Ayala, No. 09-CR-0138, 2010 WL 3369686, at *2
(N.D. Okla. Aug. 24, 2010), where the district court for the
Northern District of Oklahoma allowed the lay opinion testimony of
an interpreter who made a voice identification of a Spanish
speaking defendant.
We agree with the government that, in this particular
case, Trooper Cepero's testimony should have proven useful to the
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jury in identifying Díaz-Arias' voice. Given the fact that the
wiretapped conversations were in Spanish, the district court did
not abuse its discretion by determining that the jury may not have
been able to readily draw the inferences and conclusions necessary
to identify Díaz-Arias' voice, in the absence of Trooper Cepero's
testimony. Díaz-Arias can point to no evidence that this
particular jury, sitting in Massachusetts, possessed the same
mastery of the Spanish language as did Trooper Cepero, who is a
native speaker familiar with the particular accents, intonations
and speaking habits of persons from the Dominican Republic.6
Lacking this background, the jurors were in a less advantageous
position than Trooper Cepero was in making the voice comparison, as
they would have had trouble understanding the words being spoken
amongst the speakers and telling their voices apart. This, in
turn, would have hampered their efforts to detect how specific
words were being repeated and vocalized by the speakers, to the
detriment of their efforts to make a voice comparison.
The jurors also benefited from Trooper Cepero's guidance
in making their voice identification because Trooper Cepero
testified as to the particularities they should look for, including
the speaker's unique intonation of certain words, greetings and
6
It is irrelevant that Trooper Cepero had never spoken with Díaz-
Arias prior to trial, as the helpfulness of his testimony centers
upon his fluency in the Spanish language, and not on any contact he
may have had with Díaz-Arias beforehand.
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laughter. Trooper Cepero was able to derive these indicators
thanks to the significant amount of hours he was able to devote,
before trial, to listening to and comparing the voices of Hipólito
and Díaz-Arias. In this regard, Trooper Cepero's testimony may
have actually saved time for the jury.
We conclude that Trooper Cepero and the jurors were not
in the same position when it came to comparing the voices in the
recordings, and therefore, the jury could have found the trooper's
testimony to be helpful.
3. Personal Experience
Federal Rule of Evidence 701 also requires that lay
opinion testimony be "rationally based on the witness's
perception." Fed. R. Evid. 701(a). Díaz-Arias argues that Trooper
Cepero's testimony failed to comport with this requisite, because
Trooper Cepero allegedly based his identification of Díaz-Arias'
voice on information that was relayed to him from the other agents
working on the case. Specifically, Díaz-Arias claims that Trooper
Cepero testified that he "coordinated" with the other agents in the
case and read their reports. Because Trooper Cepero never spoke to
Díaz-Arias in person, the argument goes, Trooper Cepero's lay
opinion was not based on personal knowledge, but rather resulted
from the overall investigation.
We have repeatedly warned that "prosecutors should not
permit investigators to give overview testimony, in which a
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government witness testifies about the results of a criminal
investigation, usually including aspects of the investigation the
witness did not participate in . . . ." United States v. Rosado-
Pérez, 605 F.3d 48, 55 (1st Cir. 2010). Such testimony improperly
exposes the jury to conclusory statements that are not based on the
witness' personal knowledge, and which are unreliable because they
often consist of inadmissible hearsay evidence derived from other
government agents who participated in the investigation, but who
were never brought to testify at trial. See Flores-De Jesús, 569
F.3d at 19 (stating that, when a government witness expresses his
opinion as to a defendant's culpability based on the overall
results of an investigation, "these conclusory statements often
involve impermissible lay opinion testimony, without any basis in
personal knowledge, about the role of the defendant in the
conspiracy.").
We are satisfied that Trooper Cepero's voice
identification testimony was squarely based on his personal
knowledge. Díaz-Arias claims that, during cross-examination,
Trooper Cepero admitted that he worked with the other agents
participating in the investigation and read their reports.
However, Trooper Cepero never said that his identification of Díaz-
Arias' voice was based on the contents of those reports or on his
interactions with the other agents, and Díaz-Arias' counsel did not
follow up on this line of questioning by asking Trooper Cepero
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whether he had in fact based his opinion on outside evidence.
Rather, a review of the testimony reveals that Trooper Cepero
adequately based his testimony on the knowledge he developed from
personally listening to, and analyzing, the recorded telephone
conversations of "Hipólito," as well as the stipulated audio
recordings containing exemplars of Díaz-Arias' voice.7 If a proper
foundation is laid establishing the basis of a government lay
witness' knowledge, opinion or expertise, then such a witness may
testify about matters within his personal knowledge and give lay
or, if qualified, expert opinion testimony. Rosado-Pérez, 605 F.3d
at 56. This was clearly done in this case, as the prosecutor
properly authenticated Trooper Cepero's voice identification
testimony, by having him testify at length about (1) the procedures
that were used to intercept and record the relevant phone
conversations; (2) his experience handling wiretap investigations;
(3) his fluency in the Spanish language as a native speaker from
Puerto Rico who is familiar with the accents and intonations of
7
Díaz-Arias' reliance on our decision in Vázquez-Rivera, 365 F.3d
at 361, is misplaced, because in that case, the government had
asked the government witness who the investigation had identified
as the culpable party, and the witness answered that it was the
defendant. We held that such testimony was improper under Rule 701
because the agent had never personally heard or observed the
defendant; instead, the agent based her testimony on the combined
perceptions of others. This is not the case here, as Trooper
Cepero testified that he was familiar with Díaz-Arias' voice due to
the hours he spent listening to the admitted recordings, and based
his voice identification testimony on his own perceptions of those
recordings.
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individuals from the Dominican Republic; (4) his familiarity with
the voices present in the recordings, given the extent of his
preparation before trial in listening to them; and (5) the
particularities he looked for in comparing the voices present in
the recordings.
Therefore, we conclude that the voice identification
testimony was properly authenticated pursuant to Federal Rule of
Evidence 901, and that the content of this testimony was squarely
based on Trooper Cepero's personal knowledge.
4. Lay vs. Expert Opinion
Díaz-Arias' fourth challenge is that the district court
erred in allowing Trooper Cepero's voice identification testimony
as it did not comply with the requirements of Federal Rule of
Evidence 702, which governs the admission of expert witness
testimony. Specifically, he complains that the government
attempted to portray Trooper Cepero as an expert in voice
identification, by having him testify about his fluency in the
Spanish language and his familiarity with the accents of Spanish
speakers from the Dominican Republic. However, apart from this
impression, Díaz-Arias makes no attempt to explain how the
trooper's familiarity with the Spanish language constituted the
type of "specialized knowledge and heightened sophistication
normally associated with expert testimony." United States v.
Espinal-Almeida, 699 F.3d 588, 614 (1st Cir. 2012) (ellipsis
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omitted). Neither does he elaborate on how the methods used by
Trooper Cepero in making the voice comparison were unreliable or
how he was prejudiced by the district court's decision to allow the
testimony as lay, instead of expert, opinion. See United States v.
Hilario-Hilario, 529 F.3d 65, 72 (1st Cir. 2008)("to succeed in
obtaining a reversal on appeal, a defendant must prove both an
abuse of discretion and prejudice.") (citing United States v.
Álvarez, 987 F.2d 77, 85 (1st Cir. 1993), cert denied, 510 U.S. 849(1993)).
In addition, these arguments are irrelevant to the issues
presented by Trooper Cepero's testimony identifying Díaz-Arias as
the speaker in question. During cross-examination, Trooper Cepero
clearly admitted that he was not an expert in voice identification,
and stated that the jury had as much expertise as he did in voice
recognition. Further, at the close of evidence, the district court
reminded the jurors that they were not obligated to accept his
testimony, and that they could disregard it if they concluded it
was unreliable or inadequately supported. As a result, we cannot
conclude that the jurors were misled into thinking that Trooper
Cepero was an expert witness and that they needed to accord any
undue deference to his testimony. Accordingly, we find no abuse of
discretion here.
-22-
5. Factual Inconsistencies
Díaz-Arias' final challenge to the admission of the voice
identification testimony is that the testimony was factually
flawed. He makes the case that, in the recordings of the
wiretapped conversations, Hipólito represented that he was facing
certain events and circumstances in his life which are directly at
odds with the events and circumstances surrounding Díaz-Arias' life
in 2004. Firstly, he notes that in the recordings, Hipólito
identified himself as being age 34 and that he was born in the
month of April. Conversely, Díaz-Arias claims he is 41 years of
age and that his birthday falls on January 29. Secondly, he notes
that in the recordings, Hipólito made reference to the "sacrifices"
he was making for "Angie," who presumably was his daughter. Díaz-
Arias now claims that the evidence at trial revealed that he only
had three children, none of whom were named "Angie." Thirdly, on
one of the calls, Hipólito mentioned that he had not been able to
see a certain woman, because she had put a restraining order on
him, and that this, in turn, had prevented him from seeing his
oldest daughter, whom he had raised. Díaz-Arias argues that the
recording does not identify the woman as Jacqueline Fresa, that the
government did not elicit testimony from Fresa going to her efforts
to impede Díaz-Arias from seeing his oldest daughter, and that
Fresa's oldest daughter was in fact fathered by a man named Jason
Pina, which makes it extremely unlikely that Díaz-Arias would have
-23-
been the one that raised her. Lastly, Díaz-Arias contends that the
speaker in the recordings was not clear on whether he had one or
more daughters with the woman he spoke about.
Having thoroughly reviewed the record, including Díaz-
Arias' smorgasbord of aliases and liaisons, we are convinced that
a reasonable jury may still have elected to credit Trooper Cepero's
testimony, despite these seeming inconsistencies. In fact, many of
the inconsistencies cited by Díaz-Arias are not inconsistencies at
all. First of all, the Presentence Report (PSR) lists Díaz-Arias
as having been born on January 29, 1971. In the summer and fall of
2004, Díaz-Arias would have been 33 years old, turning 34 the
following year. In his brief, he states that he is 41 years old,
but that probably refers to his age in 2012, when the brief was
written. That said, there is a valid question as to the month of
his birthday, January vs. April, but the record in this case
establishes that Díaz-Arias was an avid user of false identities,
which allowed him to assume several false dates of birth.
Therefore, a reasonable jury would have acted well within in its
discretion in concluding that Díaz-Arias was merely being
untruthful when he asserted that he "was 34 years old as of April."
It was also free to surmise that Díaz-Arias' true date of birth was
not conclusively established at trial.
Likewise, Díaz-Arias' assertion that he only had three
daughters, none of whom were named "Angie," is unsupported by the
-24-
record. First of all, the record indicates that it was Fresa, and
not Díaz-Arias, who testified that she only had three daughters,
two with Díaz-Arias and one with Jason Pina. Second, having
reviewed the pertinent transcripts, it is apparent to us that
Hipólito never explicitly stated that he had procreated "Angie"
with the woman who placed the restraining order against him, and
whom the government argued was Fresa. Hipólito only appeared to
mention that he had raised "Angie" and that the woman in question
had taken her away from him. Third, there was evidence that Díaz-
Arias had romantic relationships with other women, and so the jury
could have inferred that "Angie" was another one of Díaz-Arias'
daughters, procreated with someone other than Fresa. In fact, the
PSR noted that Díaz-Arias reported having four other children,
including two with Angie Christo, one of his former girlfriends. In
any case, it is difficult to argue that the reference to "Angie"
could have created any reasonable doubt within the minds of the
jurors while evaluating the sufficiency of the evidence against
Díaz-Arias.
We are similarly unpersuaded by Díaz-Arias' remaining
arguments, to the effect that the recordings did not identify Fresa
as the woman who had placed the restraining order against him. The
content of the recorded phone conversations, Fresa's testimony, and
the admission of the restraining order itself (which was filed only
a few days before Hipólito referred to it in the recordings) as
-25-
well as the other evidence presented at trial, comprised enough
circumstantial evidence for the jury to conclude that it was Fresa
who filed the restraining order against "Hipólito." Any
uncertainty as to the amount of children Hipólito had with Fresa is
minimal compared to the corroborating circumstantial evidence
presented at trial, which strongly indicated that Hipólito was
indeed Díaz-Arias. Moreover, it is the prerogative of the jury to
"choose between varying interpretations of the evidence." United
States v. Sánchez-Badillo, 540 F.3d 24, 32 (1st Cir. 2008)(citing
United States v. Wilder, 526 F.3d 1, 7 (1st Cir. 2008)); see also
United States v. Rodríguez-Durán, 507 F.3d 749, 758 (1st Cir. 2007)
("The government need not succeed in eliminating every possible
theory consistent with the defendant's innocence . . . and
circumstantial evidence alone may be sufficient to provide a basis
for conviction." (internal quotations and citations omitted));
United States v. Martínez, 922 F.2d 914, 923 (1st Cir. 1991)("The
evidence need not exclude every reasonable hypothesis inconsistent
with guilt, and the jury is entitled to choose among varying
interpretations of the evidence so long as the interpretation it
chooses is a reasonable one.").
Based on the foregoing, we find that the district court
did not abuse its discretion in allowing Trooper Cepero’s voice
identification testimony.
-26-
B. Labeling of Transcripts
Díaz-Arias' second argument is that the district court
abused its discretion when it allowed the government to provide the
jury with transcripts of the intercepted phone conversations which
identified one of the speakers by his first name, i.e. Hipólito.
1. Background
On July 25, 2011, Díaz-Arias filed a motion in limine
aimed at precluding the government from introducing the transcripts
of the wiretapped conversations it prepared, because one of the
speakers was labeled as "Hipólito." After hearing arguments, the
district court ruled that the transcripts could be used as the
government proposed, "with the caution to the jury that it's a
point the government has to prove, not only to identify who the
speaker is but that, in fact, it is the defendant."
At trial, Díaz-Arias requested a limiting instruction
when the government began playing the recorded telephone calls and
providing the jury with the transcripts. The district court
imparted the following instruction:
Let me just tell the jurors that the
government's labeled these conversations, and
the transcripts have been prepared, obviously,
from their point of view as to who the
speakers are and what their names are and so
on and so forth. Ultimately, that's your
judgment to make, whether those people are who
are actually recorded on the matter to the
extent it's important. Particularly, the
person identified as Hipólito. You'll have to
decide if there was such a person and,
ultimately, the question will be whether that
-27-
was the defendant or not, or somebody else.
But because the government has labeled it as
"Hipólito" doesn't mean that that's
determinative. You will make the determination
at the appropriate time.
The jury was allowed to use the transcripts several times in order
to follow along whenever the government played a recording of an
intercepted telephone call. The jury was also provided with a copy
of the transcripts to use during their deliberations.8 Díaz-Arias
now reiterates his objections to the use of the transcripts before
this forum.
2. Standard of Review
We review for abuse of discretion the district court's
decision to allow the use of a transcript at trial. United States
v. Anderson, 452 F.3d 66 (1st Cir. 2006).
3. Analysis
Díaz-Arias mainly advances three arguments regarding the
admissibility of the contested transcripts: (1) that there was no
compelling evidence supporting Trooper Cepero's identification of
him as one of the speakers; (2) that the district court did not
properly instruct the jury that it was up to them to decide whether
the speaker labeled as "Hipólito" was indeed Díaz-Arias; and (3)
8
Díaz-Arias lodged a continuing objection to the use of the
transcripts at trial. He also objected to the government's request
to provide the jury with the transcripts for their deliberations.
The district court overruled both objections.
-28-
that labeling one of the speakers as "Hipólito" constituted
impermissible vouching by the government.
The first two arguments are derived from Díaz-Arias'
reading of our decision in United States v. Jadlowe, 628 F.3d 1(1st Cir. 2010). In Jadlowe, the district court admitted the lay
opinion testimony of a police officer identifying the defendant's
voice in several recordings of wiretapped communications. 628 F.3d
at 24. The defendant had argued that it was error to admit such
testimony, because the identification was not based on the
officer's prior personal experience with him, and because the jury
"was perfectly capable of drawing its own independent conclusion[s]
based on the evidence presented." Id. (internal quotations
omitted). We agreed with the defendant that it was error for the
district court to admit as lay opinion testimony the voice
identification of the officer, because the officer was "not in a
better position than the jurors to make the identity judgments."
Id. We also agreed with the defendant that the district court
erred when it allowed the prosecution to furnish the jury with the
transcripts of the recorded conversations, because the transcripts
reflected the officer's identification of the defendant's voice by
labeling one of the speakers with his name. However, since the
record established that there was "compelling circumstantial
evidence that Jadlowe was properly identified as the speaker in the
calls" and the district court providently instructed the jury that
-29-
it was up to them to make a determination as to whether the
transcripts accurately identified the speaker as Jadlowe, we held
that any error in admitting the lay opinion testimony and allowing
the transcripts was harmless. Id. at 25.
Díaz-Arias claims that, contrary to Jadlowe, the
circumstantial evidence pointing to him as the speaker in the phone
call recordings was not compelling, and that while the district
court did give the jury an instruction as to the use of the
transcripts, this instruction was not given at the time that the
transcripts were provided to the jury. Díaz-Arias' arguments,
however, are misplaced, because the situation in Jadlowe is
completely distinguishable from the one present in this case. The
centerpiece of our holding in Jadlowe, as it pertained to the use
of the transcripts, was that the officer's testimony identifying
Jadlowe as one of the speakers was not helpful to the jury, because
the evidence the officer relied upon to make that assessment was
readily available to the jury. Id. at 24. Instead, here one of
the speakers in the transcript was labeled with the name "Hipólito"
based on Trooper Cepero's identification of Díaz-Arias as said
speaker, and as we have already explained, Trooper Cepero in this
case was in a better position than the jury to make that
assessment, based primarily on his mastery of the Spanish language
and his familiarity with the accents of native speakers.
-30-
Therefore, Díaz-Arias' attempts to frame his arguments within the
context of our holding in Jadlowe are unavailing.
In any event, we agree with the government that there is
sufficient evidence to establish that the speaker in the
intercepted telephone conversations was someone named "Hipólito,"
and that "Hipólito," in turn, was the defendant, Díaz-Arias. There
is strong circumstantial evidence that the speaker in question was
referred to as "Hipólito" by the other members of the Pinales
organization when they communicated with each other over the phone.
For example, on the night of July 11, 2004, Pinales told Pena to
call Hipólito the next day so that Pena and Hipólito could meet.
A minute after that conversation took place, Pena called Hipólito
to ask if he could visit him. On September 28, 2004, Hipólito
called Pinales to inform him that "tomorrow, I am going to send the
guy over there" and the next day, Hernández called Pinales and
identified himself as "Hipólito’s guy." Later that day, Pinales
called a phone number and asked to speak with "Hipólito," after
which he spoke with the speaker in question. Apart from Trooper
Cepero's admissible testimony identifying the speaker as
"Hipólito," there was enough circumstantial evidence here to
support the labeling of the transcript with the name "Hipólito."9
9
In addition, two of the phone numbers used by Hipólito during
the intercepted telephone calls were listed in Pinales’ address
books as belonging to "H.P.," which a reasonable juror could infer
is an abbreviation for Hipólito.
-31-
The same can be said about the government's theory that
Hipólito was the defendant, Díaz-Arias. As we have previously
recounted, a reasonable jury could have concluded that Fresa was
the woman Hipólito referred to in the tapes, given the ample
evidence connecting the two. This evidence, coupled with Trooper
Cepero's testimony that he was able to match the voice of
"Hipólito" with the voice of Díaz-Arias, the latter of which he was
able to discern from stipulated recordings of Díaz-Arias' voice, is
enough to support the jury's conclusion that the voice of Hipólito
belonged to Díaz-Arias.
The record also belies Díaz-Arias' second argument, that
the district court did not properly instruct the jury that it was
up to them to decide if the speaker labeled as "Hipólito" was in
fact Díaz-Arias. As previously recounted, the district court did
give the jury such an instruction when the government began playing
the audio recordings of some of the intercepted calls. This
instruction was given at the behest of Díaz-Arias' counsel. The
district court again reminded the jury that the labeling of the
transcripts was not determinative when it gave its concluding
instructions, stating that "it is the government's position that
the person referred to in . . . the transcripts of the intercepted
telephone conversations as Hipólito is this defendant. To convict
the defendant, the government must convince you of that fact beyond
a reasonable doubt." We thus find that the district court
-32-
sufficiently instructed the jury that it was up to them to decide
whether the speaker in question was Díaz-Arias.
Lastly, we are similarly unswayed by Díaz-Arias' third
argument, that permitting the transcript to identify the speaker in
question as "Hipólito" constituted improper governmental vouching.
Improper vouching occurs when prosecutors place the
prestige of the United States behind one of their witnesses "by
making personal assurances about the credibility of [that] witness
or by indicating that facts not before the jury support [that]
witness' testimony." United States v. Rosario-Díaz, 202 F.3d 54,
65 (1st Cir. 2000). Improper vouching can also be said to occur
when a prosecutor implies to the jury that they "should credit the
prosecution's evidence simply because the government can be
trusted." United States v. Castro-Davis, 612 F.3d 53, 66 (1st Cir.
2010) (citing United States v. Pérez-Ruiz, 353 F.3d 1, 9 (1st Cir.
2003) and Flores-De Jesús, 569 F.3d at 18). We fail to see how any
vouching took place with regards to the district court's allowance
of the impugned transcripts. In his appellate brief, Díaz-Arias
cites to some of our case law on the vouching doctrine, but fails
to explain how the situations in those cases -- of government
witnesses and prosecutors improperly bolstering the credibility of
other government witnesses -- are mirrored in this case. Neither
can we find any evidence on the record to suggest that the
prosecutor improperly implied to the jury that they should take the
-33-
transcript at its word that the speaker in question really was
"Hipólito," simply because the government and Trooper Cepero could
be trusted to speak the truth. On the contrary, the government
properly authenticated the transcripts via Trooper Cepero's
testimony, and the labeling of those transcripts with the name
"Hipólito" merely memorialized a part of that testimony: the
identification of the speaker in question as a man named
"Hipólito." Therefore, we reject Díaz-Arias' claims of improper
vouching.
Consequently, we find no abuse of discretion in the
district court's decision allowing the jury to use the transcripts.
However, notwithstanding our validation of the evidence in this
case, we suggest that in future cases it would be better practice
for the government to establish the basis for the labeling of the
transcripts, before these documents are initially presented to the
jury, in addition to the court instructing the jury as was done by
the district court in this case.
C. Admission of Unrelated Drug Seizures
Díaz-Arias' third claim of error is that, while the
indictment charged him with participating in a single, overarching
conspiracy with the other twelve co-defendants, the evidence
marshaled at trial indicated the existence of multiple independent
conspiracies. Specifically, Díaz-Arias maintains that he was only
"one of [the] many customers" of the Pinales organization, and that
-34-
he only entered into a limited conspiracy with two of the co-
defendants (presumably Pinales and Heredia) to purchase cocaine
from them, and not into the broader conspiracy charged in the
indictment. Because of this, Díaz-Arias contends that the district
court erred when it allowed the government to introduce evidence
pertaining to the seizure of a kilogram of cocaine from Tajh White
on September 27, 2004, as well as the seizure of 53 kilograms of
cocaine from the stash house stewarded by Heredia at 115 Navarre
Street. He claims this caused an impermissible variance to result
at trial, which fomented an evidentiary spillover that allowed the
jury to transfer the guilt of the other co-defendants to him,
thereby abridging his "substantial rights." The following is a
brief overview of the law in this regard.10
To sustain a conviction for conspiracy under 21 U.S.C.
§ 846, the government must establish that "(1) a conspiracy
existed; (2) the defendant had knowledge of the conspiracy; and (3)
the defendant knowingly and voluntarily participated in the
conspiracy." United States v. Maryea, 704 F.3d 55, 73 (1st Cir.
2013) (citing United States v. Dellosantos, 649 F.3d 109, 116 (1st
Cir. 2011)). The third element requires a showing that the
defendant intended to join the conspiracy and also intended to
effectuate its objectives. Id. A tacit agreement to join the
10
Díaz-Arias also seems to challenge the drug quantity
attributable to him in this section. For the sake of clarity, we
will address said issue in the final section of this opinion.
-35-
conspiracy is sufficient. United States v. Portela, 167 F.3d 687,
695 (1st Cir. 1999).
A prejudicial variance may result when "(1) the facts
proved at trial differ from those alleged in the indictment; and
(2) the error affects the defendant's substantive rights. . . ."
Maryea, 704 F.3d at 73 (citation omitted). The question of whether
the evidence supports the existence of a single conspiracy is a
factual one for the jury to determine. United States v. Escobar-
Figueroa, 454 F.3d 40, 48 (1st Cir. 2006). Assuming the jury was
properly instructed on this matter, something which Díaz-Arias does
not challenge here, the initial question boils down to "one of
evidentiary sufficiency." Dellosantos, 649 F.3d at 116. On
review, we frequently regard the totality of the circumstances when
evaluating whether the evidence proffered at trial suffices to
establish the overarching conspiracy. Pérez-Ruiz, 353 F.3d at 7.
We must reject Díaz-Arias claims that a variance occurred if a
"plausible reading of the record supports the jury's implied
finding that he knowingly participated in the charged conspiracy."
Id.After carefully reviewing the record in this case, we
first conclude that there was abundant evidence for the jury to
determine that Díaz-Arias entered into a conspiracy to distribute
cocaine. The evidence showed that Díaz-Arias purchased multiple
kilograms of cocaine from the Pinales organization on several
-36-
occasions. See, e.g., United States v. Mitchell, 596 F.3d 18, 23
(1st Cir. 2010)("pattern of drug sales between individuals for
redistribution supports conclusion that individuals were involved
in drug conspiracy." (citing United States v. Moran, 984 F.2d 1299,
1303 (1st Cir. 1993))). It also established, as reflected in the
wiretap recordings, that Díaz-Arias arranged for drug transactions
with the core members of the conspiracy using the conspiracy's
coded language. Mitchell, 596 F.3d at 24 ("use of drug code
probative of membership in conspiracy" (citing United States v.
Morales-Madera, 352 F.3d 1, 12-13 (1st Cir. 2003))). The drug
ledgers also indicated the Díaz-Arias was a recurrent customer of
the Pinales organization and that, at one point, he was indebted to
the organization by more than $50,000. Id. ("drug ledger,
containing nicknames of defendant and other conspiracy members, is
direct evidence of membership in conspiracy." (citing United States
v. Tejada, 886 F.2d 483, 487 (1st Cir. 1989))).11
11
In Mitchell, we rejected a similar argument made by one of Díaz-
Arias' co-defendants. 596 F.3d 18. Marcus Mitchell, who was tried
separately from Díaz-Arias, also argued that the evidence was
insufficient to establish his participation in the conspiracy,
although he did so as part of his challenge against the district
court's decision to admit wiretap recordings as co-conspirator
statements. See Fed. R. Evid. 801(d)(2)(E). We rejected his
argument and found that the government had "offered substantial
evidence . . . to establish that Mitchell was an active conspiracy
member," by a preponderance of the evidence. Mitchell, 596 F.3d at
24. The evidence used against Mitchell was substantially the same
as that used against Díaz-Arias, except that a co-defendant, Oscar
Rodríguez, testified at Mitchell's trial as a government witness.
Id.-37-
There was also a sufficient evidentiary foundation for
the jury to determine that a single conspiracy existed. In
conducting our inquiry as to this issue, several factors are of
use, including: "(1) the existence of a common goal, (2)
interdependence among participants, and (3) overlap among the
participants." Dellosantos, 649 F.3d at 117. No single one of
these factors, standing alone, is necessarily determinative.
Sánchez-Badillo, 540 F.3d at 29. As to the common goal
requirement, we have found it satisfied when the goal is to sell
cocaine for profit or to further the distribution of cocaine.
Portela, 167 F.3d at 695; Dellosantos, 649 F.3d at 117.
Interdependence concerns "whether the activities of one aspect of
the scheme are necessary or advantageous to the success of another
aspect of the scheme." United States v. Ciresi, 697 F.3d 19, 27
(1st Cir. 2012) (internal quotation omitted). The final factor,
overlap among the participants, can be found to exist when the
conspiracy features "the pervasive involvement of a single core
conspirator, or hub character." Dellosantos, 649 F.3d at 118(internal quotation omitted).
Here, Díaz-Arias seems to argue that the evidence
introduced at trial established the existence of multiple,
independent drug trafficking conspiracies instead of the single,
overarching conspiracy described in the indictment. He claims that
while all the defendants had the purpose of profiting from the
-38-
distribution of cocaine, "that objective was achieved by different
methods of operation, at different places, and with different
people," which, according to him, suggests there was no
interdependence between the parties. Although Díaz-Arias admits he
received his supply of cocaine from Pinales, he contends the
evidence did not establish that either of them believed that the
success of the distribution operation depended on the ventures of
the remaining eleven defendants. He also argues there was no
evidence presented at trial indicating that he had any interactions
with the other members of the conspiracy, thus reflecting a lack of
overlap between them.
Since it appears that Díaz-Arias concedes the conspiracy
had the common goal of selling and distributing cocaine for profit,
we address the remaining two factors: whether overlap and
interdependency existed among the participants of the conspiracy.
The overlap factor is easily established, as the government proved
that Díaz-Arias' supply of cocaine came directly from Pinales and
Heredia, who spearheaded the organization. Hence, Pinales and
Heredia neatly fit into the roles of core conspirators or hub
characters of the conspiracy.
As to interdependency, we are not convinced by Díaz-
Arias' argument that there was no interdependency because his co-
defendants, who also purchased cocaine in wholesale quantities from
the Pinales organization, were independent criminals whose criminal
-39-
activity was unforeseeable to him. It is well established that the
government does not need to prove that the defendant knew all of
the details of the conspiracy, nor that he participated in every
aspect of the conspiracy. Sánchez-Badillo, 540 F.3d at 29. It
also does not have to show that the defendant knew of or had any
contact with each and every one of the conspirators. Id.Further, in United States v. Soto-Beníquez, we stated
that an example of interdependence is when "the success of an
individual's own drug transactions depends on the health and
success of the drug trafficking network that supplies him . . . ."
356 F.3d 1, 19 (1st Cir. 2003). This is readily apparent here,
where the evidence established that Díaz-Arias was a repeat
customer of the Pinales organization, purchasing multiple kilograms
of cocaine, often on consignment, and regularly paying down debts,
amounting to thousands of dollars, to the organization. A rational
jury could have inferred that the proceeds the organization
obtained from customers such as Díaz-Arias allowed it to continue
importing large quantities of cocaine, thus furthering the criminal
enterprise. Therefore, it can be said that Díaz-Arias' success as
a distributor was predicated upon the success of the other co-
conspirators; were it not for the combined collective effort of all
of them, the Pinales organization would have faltered, possibly
leaving Díaz-Arias bereft of a supplier. See Maryea, 704 F.3d at
77 ("This interdependence makes it reasonable to speak of a tacit
-40-
understanding between [a core conspirator] and others upon whose
unlawful acts his success depends.") (internal quotation marks
omitted). Accordingly, there was sufficient evidence for a jury to
infer interdependency, and thus the existence of a single
conspiracy.
Having determined that there was sufficient evidence to
support the existence of a single conspiracy, we must also
determine that the district court did not err in admitting the
evidence from the cocaine seizures of Tajh White and Heredia's
stash house. The evidence proffered by the government tended to
establish that White was also a customer of the Pinales
organization and that the stash house at 115 Navarre Street was
used by that organization as a repository for cocaine. Therefore,
the evidence stemming from the cocaine seizures were plainly
relevant to proving the existence of the charged conspiracy. See
Fed. R. Evid. 401.
D. The Race and Ethnicity Instruction
Díaz-Arias has also lodged an objection to the district
court's refusal to provide the jury with his requested instruction
on race, ethnicity and national origin. The requested instruction
stated the following:
It would be improper for you to consider, in
reaching your decision as to whether the
government sustained its burden of proof, any
personal feelings you may have about the
defendant's race or ethnicity, or national
-41-
origin, or his or any witness' immigration
status.
The district judge declined to give this instruction,
stating "I don't think I will give that specifically. I will
emphasize that they are to be completely fair-minded and impartial
and not to be influenced by private views of any of the instances
in the case, but I won't be any more specific than that." Instead,
the court opted to charge the jury with the following instruction:
You should determine what facts have been
shown or not based solely on a fair
consideration of the evidence. That
proposition means two things, of course. First
of all, you'll be completely fair-minded and
impartial, swayed neither by prejudice, nor
sympathy, by personal likes or dislikes toward
anybody involved in the case, but simply to
fairly and impartially judge the evidence and
what it means.
In his brief, Díaz-Arias points to surveys which "have
established that large portions of the community believe that drug
trafficking is more prevalent amongst Hispanics than it is with any
other ethnic group." He also provides citations to other studies
which have indicated that: (1) Blacks and Hispanics are more likely
to be incarcerated for drug offenses than are Caucasians; and (2)
the correlation between race and drug activity is a popular
misconception. Therefore, Díaz-Arias contends his proposed
instruction was necessary to dispel any notion among the jurors
that being Hispanic in and of itself is evidence of guilt in a drug
crime. By not giving the instruction, he argues, the district
-42-
court diminished the burden of proof and "allowed a misconception
to infect the jury trial process." He contends the district
court's lapse in this regard constituted reversible error. We
reject that contention.
Properly preserved challenges to jury instructions are
reviewed de novo, "taking into account the charge as a whole and
the body of evidence presented at trial." United States v.
Sampson, 486 F.3d 13, 29 (1st Cir. 2007). A district court's
refusal to provide a requested instruction is reversible error only
when the requested instruction "(1) was substantively correct; (2)
was not substantially covered elsewhere in the charge; and (3)
concerned an important point in the case so that the failure to
give the instruction seriously impaired the defendant's ability to
present his defense." United States v. Willson, 708 F.3d 47, 54-55
(1st Cir. 2013). "Cases satisfying all three [of these] factors
are 'relatively rare.'" Id. (quoting United States v. González,
570 F.3d 16, 21 (1st Cir. 2009)).
In this case, Díaz-Arias' instruction fails to surmount
the second prong of the test. The district court adequately
instructed the jury that it should be "completely fair-minded and
impartial, swayed neither by prejudice, nor sympathy, by personal
likes or dislikes toward anybody involved in the case . . . ."
Díaz-Arias' proposed instruction was a more specific version of the
court's instruction; it merely recited the possible forms of
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prejudice that a person might have against Díaz-Arias: race,
ethnicity, national origin or immigration status.12 The court's
instructions effectively incorporated the essence of Díaz-Arias'
request; they advised the jurors that they could not be swayed by
any form of prejudice towards anybody involved in the case, which
obviously included the defendant. See United States v. Rose, 104
F.3d 1408, 1416 (1st Cir. 1997) ("[T]rial court's charge need not
use the exact wording requested by the defendant so long as the
instruction incorporates the substance of the defendant's
request."); United States v. McGill, 953 F.2d 10, 12 (1st Cir.
1992) (similar); Calhoun v. Acme Cleveland Corp., 798 F.2d 559, 564
(1st Cir. 1986) (holding that instruction to jury to "avoid bias or
prejudice" was sufficient, despite defendant requesting an
"anticorporate bias" instruction). Thus, the district court's
decision to use a general term such as "prejudice," without listing
the examples of concern to Díaz-Arias, does not constitute
reversible error.
Our conclusion here is also based upon a number of
factors. We first note that a plurality of the Supreme Court has
stated that "[t]here is no constitutional presumption of juror
bias either for or against members of any particular racial or
ethnic groups." Rosales-López v. United States, 451 U.S. 182, 190
12
The proposed instruction also referred to "the defendant," while
the court's instruction referred to "anybody involved in this
case."
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(1981). Although Díaz-Arias expresses a concern in his brief as to
one or more of the jury members possibly bringing "to the process
some bias or just some inkling that the drug problem in this
country is created by the presence of Hispanic's [sic] in our
society," nothing in the record supports such an assertion. The
district court docket reflects that Díaz-Arias was able to propose
voir dire questions that went directly to the issue of prejudice on
account of race, ethnicity, national origin and immigration status.
Díaz-Arias has not argued before us that the district court refused
to ask the venire those questions, or that the venire members who
ultimately served as jurors demonstrated signs of harboring any
kind of prejudice towards him. Neither can he point to any
incident during the proceedings which would have given rise to a
heightened concern of potential bias in any of the jurors.
Díaz-Arias' reliance on cases such as Miller-El v.
Dretke, 545 U.S. 231 (2005) and United States v. Casas, 425 F.3d 23(1st Cir. 2005), is also misplaced. While the Court in Miller-El
did reaffirm that "racial discrimination by the State in jury
selection offends the Equal Protection Clause," 545 U.S. at 238,
there are no allegations in this case that the prosecutor
discriminatorily used her peremptory strikes against venire members
on account of their race or ethnic background. In Casas, on the
other hand, we did warn that "[w]hen a non-frivolous suggestion is
made that a jury may be biased or tainted by some incident, the
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district court must undertake an adequate inquiry to determine
whether the alleged incident occurred and if so, whether it was
prejudicial." 425 F.3d at 48 (quoting United States v. Gastón-
Brito, 64 F.3d 11, 12 (1st Cir. 1995)). However, Casas concerned
an incident during trial where it was discovered that some of the
jurors may have been biased in favor of certain defendants. Here,
in contrast, Díaz-Arias has not alleged that any incidents took
place during the course of the proceedings which may have called
into question the impartiality of the jurors. Furthermore, we
emphasize that Díaz-Arias did not inform the district court of his
belief that some of the jurors may have been prejudiced against
him; much less did he provide the court with any evidence to
support such a claim, as he attempts to do on appeal. Accordingly,
we see no legal basis to find reversible error in the district
court's decision to forgo using the requested instruction.13
E. Drug Quantity Determination
The fifth claim of error broached by Díaz-Arias in this
appeal concerns whether the district court erred in refusing
another of his proposed jury instructions, one that would have
13
Our decision does not foreclose the possibility that, on facts
not presented here, we would take up and reconsider the issue in
the future. While the surveys and studies cited by Díaz-Arias
present legitimate concerns, the record does not reflect that the
jurors in this case were afflicted with the kind of bias said
studies point to. In addition, we are confident the district
courts will remain vigilant when it comes to detecting possible
signs of jury bias, particularly during the jury selection stage of
the proceedings.
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asked the jury to determine the drug quantity attributable to him.
The district court, however, opted to instruct the jury that "proof
of the quantity of cocaine is not an issue for you to determine."
Díaz-Arias now contends that the drug quantity finding should have
been made by the jury beyond a reasonable doubt, not by the
district judge by a preponderance of the evidence. He invokes the
Supreme Court's landmark case of Apprendi v. New Jersey, 530 U.S.
466 (2000), to argue that his sentence was imposed in violation of
his rights under the Fifth Amendment's Due Process Clause as well
as the Sixth Amendment's notice and jury trial guarantees. Since
Díaz-Arias preserved this claim at sentencing, we review his
challenge to the constitutionality of his sentence de novo. See
United States v. Brown, 669 F.3d 10, 19 (1st Cir. 2012).
The Supreme Court in Apprendi established the principle
that, "[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable
doubt." 530 U.S. at 490; United States v. Malouf, 466 F.3d 21, 25
(1st Cir. 2006). The Apprendi principle, however, does not apply
to facts that increase the mandatory minimum sentence. Harris v.
United States, 536 U.S. 545, 557 (2002); Malouf, 466 F.3d at 25.
In United States v. Goodine, 326 F.3d 26, 33 (1st Cir. 2003), we
emphasized that "[a] sentencing court may use the preponderance of
the evidence standard to find facts that require the imposition of
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a specified minimum sentence, so long as that sentence does not
exceed the maximum sentence provided by the relevant statute."
(emphasis in original). Hence, the principle established in
Apprendi is not breached if the district judge finds that a
specific quantity of drugs can be attributed to a defendant --
thereby increasing the mandatory minimum sentence involved -- as
long as that mandatory minimum sentence remains at or below the
statutory maximum sentence that could be applied against the
defendant given the jury's verdict. United States v. Platte, 577
F.3d 387, 392 (1st Cir. 2009); United States v. Barnes, 244 F.3d
172, 177-78 (1st Cir. 2001). The Apprendi principle will not be
transgressed as long as the district judge does not impose a
sentence above that statutory maximum sentence.
In this case, the indictment charged the defendants with
violating sections 841(a)(1) and 846 of Title 21 of the United
States Code, by conspiring with each other to possess with intent
to distribute, and to distribute, at least five kilograms of
cocaine. At trial, the government did not seek to have the jury
determine whether the drug quantity attributable to Díaz-Arias was
at least five kilograms of cocaine. Instead, the government agreed
that if the jury decided to convict Díaz-Arias, it would not seek
a sentence in excess of 20 years, which is the default statutory
maximum sentence for crimes involving the distribution of cocaine
in any quantity. See 21 U.S.C. § 841(b)(1)(c) (2006). Given the
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jury's verdict finding Díaz-Arias guilty of the crimes charged, the
maximum sentence that could have been applied against him was 20
years. Id. Subsequently, at sentencing, the district court found
by a preponderance of the evidence that five or more kilograms of
cocaine were attributable to Díaz-Arias and it imposed the
mandatory minimum sentence contained in section 841(b)(1)(A)(ii),
that is, ten years. Therefore, since the imposed sentence of ten
years is not in excess of the default statutory maximum sentence of
20 years, Díaz-Arias' Apprendi-based attack on the
constitutionality of his sentence fails. See Goodine, 326 F.3d at
33 ("If the disputed fact (here, drug quantity) influences the
sentence, but the resulting sentence is still below the default
statutory maximum, there is no Apprendi violation.").
F. Sentencing
Lastly, Díaz-Arias takes issue with the district court's
finding that more than five kilograms of cocaine were attributable
to his participation in the conspiracy. He notes that the district
court arrived at that estimate by relying on several pieces of
evidence: (1) the single kilogram seized from Hernández on
September 29, 2004; (2) a recording dated July 11, 2004, where
Díaz-Arias supposedly discussed another kilogram; (3) the amounts
shown on the seized drug ledgers from the Park Avenue Market; and
(4) several proffer statements made by two of Díaz-Arias' co-
defendants, Pinales and Rodríguez, who entered into cooperation
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agreements with the government. Although Díaz-Arias admits that
the kilogram seized from Hernández could arguably be tied to him,
he claims that the remaining pieces of evidence are insufficient to
establish, by a preponderance of the evidence, that he was involved
with five or more kilograms of cocaine. He argues that the
July 11, 2004 recording does not contain any explicit mention of a
kilogram of cocaine, that no reliable evidence was introduced to
discern the meaning of the numbers contained in the drug ledgers,
and that the proffer statements should not have been relied upon
because they violated his Confrontation Clause rights under the
Sixth Amendment. We proceed to analyze his claims.
When sentencing a member of a drug conspiracy, the
district court must make an individualized finding "concerning the
quantity of drugs attributable to, or reasonably foreseeable by,"
that member. United States v. Cintrón-Echautegui, 604 F.3d 1, 5
(1st Cir. 2010). In making that determination, the court "may
consider relevant information without regard to its admissibility
under the rules of evidence applicable at trial, provided that the
information has sufficient indicia of reliability to support its
probable accuracy." Id. at 6 (quoting United States v. Zapata, 589
F.3d 475, 485 (1st Cir. 2009)).
Since Díaz-Arias objected to the district court's drug
quantity calculation at sentencing, we review any legal error
committed by the district court de novo, while mindful that factual
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findings must be reviewed for clear error. United States v. Ortiz-
Torres, 449 F.3d 61, 72 (1st Cir. 2006). If we can discern no
legal error, then we must credit the district court's factual
findings as to drug quantity "unless, on the whole of the record,
we form a strong, unyielding belief that a mistake has been made."
Platte, 577 F.3d at 392 (quoting Cumpiano v. Banco Santander Puerto
Rico, 902 F.2d 148, 152 (1st Cir. 1990)). Here, we find that the
district court's determination as to drug quantity was sufficiently
grounded on reliable evidence.
At the outset, we must reject Díaz-Arias' claim that the
use of the proffer statements subscribed by Pinales and Rodríguez
violated his rights under the Confrontation Clause, because we have
repeatedly stated that such rights do not attach during sentencing.
See United States v. Dyer, 589 F.3d 520, 532 (1st Cir. 2009);
United States v. Luciano, 414 F.3d 174, 178-80 (1st Cir. 2005). In
these proffer statements, Pinales and Rodríguez described the role
of Díaz-Arias within the drug organization, with Pinales stating
that Díaz-Arias picked up a kilogram of cocaine from him every 15
days. The proffers of Rodríguez seemed to be more inconsistent; at
first he stated that he "possibly" delivered two kilograms to Díaz-
Arias, as well as another undetermined amount, to two of Díaz-
Arias' couriers. However, a few months later, Rodríguez stated
that he met Díaz-Arias three or four times and delivered six or
seven kilograms to him. In any event, despite this inconsistency,
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Díaz-Arias does not separately challenge the reliability of these
proffers; he has only assailed the district court's consideration
of these statements under the Confrontation Clause. Moreover, the
district judge made clear that he did not view the proffer
statements in isolation, but rather as part of the information
available to him as a whole, and that he did not take those
statements as "gospel."
It is clear to us that the proffer statements, coupled
with the amounts contained in the drug ledgers and the rest of the
evidence presented a trial, adequately supported the district
court's finding that Díaz-Arias was involved with five or more
kilograms of cocaine. During trial, Trooper Cepero testified that,
at the time of the conspiracy, a kilogram of cocaine generally sold
for $23,000 to $24,000. The drug ledgers themselves suggested that
someone with the initials "H.P." effectuated three transactions of
$24,000 each, and one transaction amounting to $48,000. The
ledgers gave the impression that once the transactions were made,
"H.P." would proceed to amortize the resulting debts in various
installments. Given the other evidence presented at trial, these
ledgers could reasonably be read as reflecting the purchase of at
least five kilograms of cocaine (three separately and two
together), and that these sales were made on consignment.
Furthermore, the district court did not commit clear error in
concluding that "H.P." was Díaz-Arias, because in one of Pinales'
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address books, introduced as Exhibit 23, there was a phone number
ending in 1764 next to the initials "H.P." The wiretap
investigation carried out by the DEA revealed that Díaz-Arias used
that same phone number, among others, to communicate with Pinales.
Accordingly, we are not convinced by Díaz-Arias'
arguments that the drug ledgers were too ambiguous for the district
court to have arrived at a drug quantity determination of five or
more kilograms. When considered alongside the other information
contained in the PSR, including the proffer statements as well as
the evidence produced at trial, the ledgers were sufficiently
reliable to hold Díaz-Arias accountable for at least five kilograms
of cocaine, as required to sentence him to the mandatory minimum of
ten years under 21 U.S.C. § 841(b)(1)(A)(ii).
III. Conclusion
For the reasons elucidated above, the judgment of the
district court is affirmed.
Affirmed.
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