United States v. Amaro-Santiago

United States Court of Appeals
For the First Circuit
No. 14-2065
UNITED STATES OF AMERICA,
Appellee,
v.
RICARDO AMARO-SANTIAGO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, Jr., U.S. District Judge]
Before
Lynch, Kayatta, and Barron,
Circuit Judges.
Luis Angel Guzman-Dupont argued, with whom Mark E. Howard and
Howard & Ruoff, PLLC, were on brief, for appellant.
Nina Goodman, Attorney, Appellate Section, Criminal Division,
U.S. Department of Justice, with whom Leslie R. Caldwell, Assistant
Attorney General, Sung-Hee Suh, Deputy Assistant Attorney General,
Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson
Pérez-Sosa, Assistant United States Attorney, were on brief, for
appellee.
May 31, 2016
BARRON, Circuit Judge. Ricardo Amaro-Santiago was
convicted, after a jury trial, of drug and weapons offenses
committed in connection with the Federal Bureau of Investigation's
Operation Guard Shack, which targeted corrupt Puerto Rico police
officers. The District Court sentenced Amaro, who was not himself
a police officer, to fifteen years in prison. Amaro challenges
his convictions and his sentence. We affirm.
I.
Operation Guard Shack began in 2008. It focused on
Puerto Rico police officers who were suspected of accepting money
from drug dealers in exchange for providing security during drug
transactions.
In May 28, 2010, as part of that operation, the FBI
conducted the sting operation that led to Amaro's arrest. The
sting took place at an apartment in Guaynabo, Puerto Rico. It
involved a staged drug deal (using sham cocaine) in which Amaro
was claimed to have participated -- along with two police
officers -- by acting as an armed guard. The FBI audio and video
recorded the deal.
At trial, Amaro put on a duress defense and took the
stand to make his case. Amaro testified that he needed $400 to
fix his car and that a co-worker had suggested that Amaro might be
able to borrow the money from her cousin, who was a police officer.
Amaro testified that he met with that officer, but the officer
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said he did not "have the money right now." Amaro said he went
with the officer and a second officer to the apartment where the
drug transaction took place because he thought they were going
there to collect $400 for Amaro and not to provide security for a
drug transaction. Amaro testified that he stayed at the apartment
and helped with the drug transaction only because, when he tried
to leave the apartment, the FBI agent posing as the drug dealer
made a comment to him that made him think the drug dealer would
hurt him if he tried to leave. Finally, Amaro testified that he
did not report the drug transaction to the police because he was
afraid for his family's safety.
Despite Amaro's testimony, the jury returned a guilty
verdict on all three counts it was asked to consider: conspiracy
to possess with intent to distribute cocaine in excess of five
kilograms, in violation of 21 U.S.C. § 841(a)(1) and § 846, aiding
and abetting the attempted possession with intent to distribute
cocaine in excess of five kilograms, in violation of 21 U.S.C.
§ 841(a)(1) and 18 U.S.C. § 2, and possession of a firearm during
and in relation to a drug trafficking offense, in violation of 18
U.S.C. § 924(c). The jury also found that the amount of fake
cocaine involved in the first two offenses was eleven kilograms.
The District Court then sentenced Amaro to fifteen years in prison.
Amaro now appeals, challenging both his convictions and his
sentence.
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II.
Amaro first contends that his convictions must be
vacated because the prosecutor made two inappropriate statements
during closing argument. The parties dispute whether Amaro
objected to those statements below, and thus they disagree about
whether our review should be de novo or only for plain error. But
we do not need to resolve that disagreement because, even assuming
that our review is de novo, each of his challenges still fails.
Under de novo review, we may reverse Amaro's convictions
on the basis of the prosecutor's remarks only if they were "both
inappropriate and prejudicial." United States v. Matías, 707 F.3d
1, 5 (1st Cir. 2013). To be prejudicial, "the prosecutor's remarks
[must have] 'so poisoned the well that the trial's outcome was
likely affected.'" United States v. Shoup, 476 F.3d 38, 43 (1st
Cir. 2007) (quoting United States v. Henderson, 320 F.3d 92, 107
(1st Cir. 2003)). In determining whether a statement "poisoned
the well," we must consider "the totality of the circumstances,
including the severity of the misconduct, the prosecutor's purpose
in making the statement (i.e., whether the statement was willful
or inadvertent), the weight of the evidence supporting the verdict,
jury instructions, and curative instructions." Matías, 707 F.3d
at 5-6 (quoting United States v. De La Paz-Rentas, 613 F.3d 18, 25
n.2 (1st Cir. 2010)). Applying those standards here, we conclude
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that Amaro has not shown that the prosecutor's statements require
reversal of his convictions.
A.
Amaro first points to the prosecutor's statement in
closing argument concerning a key aspect of Amaro's duress defense.
The context for that statement is as follows.
During the staged drug transaction at the apartment,
Amaro stated that he had left his cell phone downstairs. The FBI
agent who was posing as the drug dealer said that Amaro should not
be allowed to get his cell phone because he would "run away." The
agent said, "He'll run away and I have the chainsaw ready
for . . . any person that infiltrates in here put him dr-r-r-r-r-
r."
At trial, Amaro testified that this comment made him
feel that his "life was threatened," and so he did not leave the
apartment. In his closing argument, however, the prosecutor told
the jury that:
you can't have an immediate threat that
somebody's going to chop you up with a chain
saw if there's not even a chain saw in the
room. And there's no evidence that there was
a chain saw anywhere in that apartment. And
to be clear, to meet this element of the duress
defense, that's the defendant's burden. He
has to put some evidence to you and prove that
by a preponderance of the evidence that the
threat was immediate, that there was a chain
saw available for these people to chop him up.
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Amaro argues that this statement improperly informed the
jury that, as a legal matter, the chainsaw remark could not support
a key element of his duress defense -- that the threat be an
"immediate threat of serious bodily injury." United States v.
Bravo, 489 F.3d 1, 10 (1st Cir. 2007). But although Amaro is right
that the jury could have found that he felt immediately threatened
as a result of the agent's statements regarding the chainsaw even
though there was no chainsaw in the room, the prosecutor's
problematic statement does not warrant reversal.
As troubling as the prosecutor's misstatement of the law
of duress is, the District Court's instruction the next morning
sufficed to cure any concern that the prosecutor's statement misled
the jury. In the curative instruction, the District Court properly
restated the elements of duress, and then added the following
comments that directly addressed what the prosecutor had said
regarding the chainsaw:
Now, let me note that in this case -- and we've
been here for seven, this is the eighth
day -- the prosecutor for the Government in
his closing argument stated that to meet the
duress defense -- and I will quote, "Mr. Amaro
had to prove that the threat was immediate and
that there was a chain saw and that there was
a chain saw available for these people to chop
him up." And that was the prosecutor's
statements [sic].
Now, I want you to be aware that the
prosecutor's statement about the presence or
not of a chain saw in the apartment and Mr.
Amaro having to prove its presence to succeed,
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is not part of the Court's duress instructions
and cannot be considered by the jury as an
instruction nor as what the law is. That is
not the law, and that was an incorrect
statement.
Now, the presence of a chain saw or not in the
apartment is an argument that the
prosecutor . . . has made and which you may
consider in your deliberations in determining
from the law and the evidence, as you find it,
whether Mr. Amaro was under duress or not.
However, if you consider that argument, you
must also equally consider Mr. Amaro's
arguments of duress which are not limited to
the presence or not presence of a chain saw.
Given the thoroughness and specificity of the curative
instruction, we do not see how the prosecutor's statement caused
prejudice that would warrant reversal. See United States v.
Rodriguez, 675 F.3d 48, 63 (1st Cir. 2012) ("This court has
repeatedly held that a strong, explicit and thorough curative
instruction to disregard improper comments by the prosecutor is
sufficient to cure any prejudice from prosecutorial misconduct,"
id. (quoting United States v. Riccio, 529 F.3d 40, 45 (1st Cir.
2008))), as "juries are presumed to follow such instructions," id.
(quoting United States v. Gentles, 619 F.3d 75, 86 (1st Cir.
2010)). And that is so notwithstanding Amaro's contention on
appeal that, because the instruction was not given until the
morning after the prosecutor made the statement, it "increased the
risk that the improper comment solidified in the minds of some
jurors."
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The problem for Amaro is that he objected to the District
Court's giving a curative instruction immediately after the
statement was made, on the ground that the jury was "tired" and
thus that it would be "extreme[ly] prejudicial for the defense in
this case to have them brought back in here to read a corrective
instruction." He thus asked that a curative instruction be read
"tomorrow morning." Because Amaro cannot "properly challenge on
appeal a proposal [he himself] offered to the trial court," United
States v. Angiulo, 897 F.2d 1169, 1216 (1st Cir. 1990), his
challenge to this statement by the prosecutor fails.
B.
The other statement by the prosecutor that Amaro
contends warrants reversal was made in the prosecutor's closing
argument to illustrate the concept of reasonable doubt. The
challenged statement began as follows:
Now, you heard Judge Gelpi's instructions on
reasonable doubt. Let me give you just an
example of how you use reasonable doubt in
your everyday lives. When your car is on
empty, you go to the gas station. You pull up
to the pump, you swipe your card, you pay for
the gas, you open your tank -- . . .
At that point, defense counsel objected, but the District Court
overruled the objection and instead warned the prosecutor that his
analogy had to comply with the court's statement of the law. The
prosecutor then continued in front of the jury as follows:
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As I was explaining to you about reasonable
doubt -- and let me remind you that your
instruction on the law comes from the Judge.
This is an example that I'm giving you to
explain what reasonable doubt is and how it's
something you use in your everyday lives.
So remember now, we're at the gas station.
We've pulled up, we've swiped our card, we've
opened our tank, we've put in our gas, we've
filled up our car. It stops. It clicks. We
take the pump out. We close our tank. We get
into our car and our car drives. I submit to
you, ladies and gentlemen, that all of this is
circumstantial evidence that proves beyond a
reasonable doubt that the substance you put in
your car was gasoline. That is an example of
how reasonable doubt is used in your everyday
lives.
Amaro argues that when someone "pull[s] up to a gas
station, [that person] ha[s] no reasonable doubts that the
substance [she is] about to buy is gasoline," and that this
presumption "persists unless and until [she] receive[s] some
evidence that suggests that the substance was not gasoline." Amaro
thus contends that the prosecutor's analogy "stood the presumption
of innocence and the reasonable doubt standard on its head," by
encouraging the jury to presume that Amaro was guilty and thereby
"completely eviscerated the presumption of innocence and
reasonable doubt."
But we have a hard time seeing how the prosecutor's
statement improperly led the jury to believe that the beyond a
reasonable doubt standard is less strict than it is. The
prosecutor did not tell the jury that it could assume Amaro's guilt
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in the same way that a driver can assume gas is sold at a gas
station. Rather, the prosecutor explained that the jury could
convict only if it were as confident that Amaro was guilty after
hearing the facts as a driver is confident he has purchased gas
after entering a gas station, pumping gas, and driving away.
Moreover, we generally "assume[] that the jurors follow
jury instructions and thus that they followed the judge's, not
counsel's, definition of reasonable doubt." United States v.
Gonzalez-Gonzalez, 136 F.3d 6, 9 (1st Cir. 1998). "That assumption
is especially so here, since the prosecutor also told the jury to
listen to the judge," id., and the prosecutor did so with respect
to this very issue. Given that the District Court properly
instructed the jury on the presumption of innocence and the
reasonable doubt standard and that the District Court also
instructed the jury to follow the law as instructed by the court
and not by counsel, the prosecutor's use of the gas station analogy
did not so "poison[]the well" that we must reverse. See Shoup,
476 F.3d at 43.
III.
Amaro separately challenges his convictions on the
ground that the District Court erred in delivering to the jury an
"Allen charge," which is a supplemental instruction that a judge
may give to a jury when it is deadlocked in its deliberations.
The charge aims to "urg[e] the jury to return to its deliberations"
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"for the sake of judicial economy." United States v. Angiulo, 485
F.3d 37, 40 (1st Cir. 1973). The charge takes its name from Allen
v. United States, 164 U.S. 492 (1896), and it has been described
as a "dynamite" charge because, due to its potentially coercive
effect, it, "[l]ike dynamite . . . should be used with great
caution." United States v. Flannery, 451 F.2d 880, 883 (1st Cir.
1971).
Amaro's challenge takes two forms. He first seeks
reversal based on the District Court's decision to give the charge
rather than to grant his request for a mistrial. He also seeks
reversal on the basis of the content of the charge that the
District Court gave. We start by describing the relevant facts.
A.
The jury began deliberating at 11 a.m. on the eighth day
of trial. After nine and half hours, the jury sent the District
Court a note that read:
After several hours of deliveration [sic], we
could not reach an agreement and every juror
strongly agree [sic] that nothing could be
made to change his mind.
In response, the District Court proposed to the parties
that he give an Allen charge. The government agreed. Defense
counsel, however, asked the District Court to declare a mistrial
instead. The District Court denied the request for a mistrial.
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The District Court then asked whether defense counsel
had any objections to the court giving an Allen charge. Defense
counsel stated that, given that his request for a mistrial had
been denied, the charge should be given.
The District Court proceeded to instruct the jury with
the First Circuit pattern Allen charge. Before doing so, however,
the District Court made the following additional statement to the
jury, which is not part of the First Circuit pattern Allen charge:
Now, I am going to instruct you to go back to
the jury room and resume your deliberations.
Or, if you need to recess and come back
tomorrow, do so; it's your decision. And I
will explain why and give you some further
instructions as to why this is necessary.
Now, first of all, let me explain that this is
a very important case. It's an important case
for the United States and it's a very
important case also for Mr. Amaro. The trial
has been expensive -- and, again, not in money
but expensive in time, effort, and emotional
strain to all Counsel in this case -- they
worked extremely hard. And what they're
asking is that the respective clients, the
United States and Mr. Amaro, have their day in
court.
The court also has put a lot of time and effort
into this case, and I also know that you have
put a lot of time and effort into this case.
And I also remind you that it is your
constitutional duty, as jurors, to try to
reach a verdict following the instructions
that I gave you and which I will repeat in
part. Now, if you're unable to reach a
verdict, the trial will remain open and
another jury will have to be selected to try
this case.
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After receiving the charge, the jurors returned to their
deliberations. Approximately forty minutes later, the jury asked
to review the video recording of the drug transaction. The jury
was given the recording. At 12:15 a.m. the next day, after
approximately three hours of post-Allen charge deliberations, the
jury reached a verdict of guilty on all counts.
B.
A district court's decision not to declare a mistrial
when confronted by a deadlocked jury is reviewed for abuse of
discretion. United States v. Peake, 804 F.3d 81, 98 (1st Cir.
2015), petition for cert. filed, 84 U.S.L.W. 3527 (Mar. 9, 2016)
(No. 15-1134). We see none here.
Amaro contends that the "deadlock should have been
respected" because "[t]he jury had demonstrated fully through a
long day and evening of deliberations that it had fully discharged
its duty to consider the evidence and reach a conscientious
decision." But we have held that judges have acted within their
discretion in denying motions for a mistrial after trials and
deliberations of similar lengths to this one and in cases in which
the indications that the jury was deadlocked were stronger. See
id. at 99 (holding that the district court did not abuse its
discretion when it denied the defendant's request for a mistrial
after a nine-day trial, two half-days of deliberations, and two
notes from the jury stating that it could not reach a verdict);
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see also United States v. Rengifo, 789 F.2d 975, 977-78, 985 (1st
Cir. 1986) (holding that the trial court's denial of a mistrial
and giving of an Allen instruction "was the correct response to
the information that the jury was at an impasse" after seven hours
of deliberations and two notes from the jury stating that it was
deadlocked). And so, as in those cases, we conclude the judge did
not abuse his discretion in denying the motion for a mistrial in
this case.1
C.
Amaro's challenge to the content of the District Court's
Allen charge is presented for the first time on appeal, and so he
must show plain error. United States v. Vanvliet, 542 F.3d 259,
266 (1st Cir. 2008). Amaro must therefore show that "the Allen
charge contained error which was obvious and affected his
substantial rights, and that we should exercise our discretion to
reverse such an error because it 'seriously affected the fairness,
integrity or public reputation of judicial proceedings.'" Id.
(quoting United States v. Hernández-Albino, 177 F.3d 33, 37-38
(1st Cir. 1999) (internal quotation marks and brackets omitted)).
And to establish that his substantive rights were affected by such
1 Nor are we persuaded by Amaro's entirely speculative
argument that the deadlock "could very well have been the result
of the prosecutor's improper misstatement of the law regarding the
duress defense" because "the jury asked for the duress instruction
on two occasions after the judge gave the curative instruction."
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error, Amaro must show that the Allen "'charge in its context and
under all the circumstances' coerced the jury into convicting him."
Hernández-Albino, 177 F.3d at 38 (quoting Lowenfield v. Phelps,
484 U.S. 231, 237 (1988)).
An Allen charge, by its nature, "can have a significant
coercive effect by intimating that some jury members should
capitulate to others' views, or by suggesting that the members
should compromise their rational positions in order to reach an
agreement." Id. And so, "[a]lthough federal courts have long
sanctioned the use of supplemental charges in the face of an
apparent impasse . . . , we have warned that such action should be
undertaken with 'great caution.'" Id. (citation omitted) (quoting
Flannery, 451 F.2d at 883).
In order to militate against the inherently coercive
nature of an Allen charge, we have required that such a charge
"contain three specific elements to moderate any prejudice." Id.
Specifically, it must "(1) communicate the possibility of the
majority and minority of the jury reexamining their personal
verdicts; (2) restate the government's maintenance of the burden
of proof; and (3) inform the jury that they may fail to agree
unanimously." Peake, 804 F.3d at 98.
The Allen charge at issue here did all three of those
things. Amaro nonetheless contends that the charge was improperly
coercive because it failed to do something else: refer back to
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Amaro's duress defense. He contends that because the Allen charge
"totally eliminated any mention of the affirmative defense[,] the
juror[s] that might have been individually considering acquittal
due to the defense lost legitimacy and were coerced by that
charge."
But we have never held that a district court must
instruct a jury on a defense in an Allen charge. Thus, the District
Court's decision to give a charge that communicated the three
elements set forth in our prior case law was not clear or obvious
error. Cf. Vanvliet, 542 F.3d at 270 (failure to give Allen charge
before the jury retired was not plain error because "[w]e have not
even discussed the desirability of this practice in our own circuit
precedents").
More promising for Amaro is his contention that the
District Court included language in the charge that is not in the
pattern instruction and that was likely to push jurors who were
leaning toward acquittal to abandon that position and vote for
conviction. After all, we have previously advised trial courts to
"avoid substantive departures from the formulations of the [Allen]
charge that have already received judicial approval" and adding to
those formulations "language which might heighten" the "coercive
effect" of such charges. Flannery, 451 F.2d at 883. And the
portions of the charge that Amaro challenges exemplify the problem
with such ad libbing.
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Amaro notes that, in going off-script, the District
Court instructed the jurors that it was their "constitutional duty"
to "try to reach a verdict." Amaro also points to the District
Court's statement to the jury that the trial had been
"expensive . . . not in money but expensive in time, effort, and
emotional strain to all Counsel in this case -- they worked
extremely hard," and that "[t]he court also has put a lot of time
and effort into this case."2 And he objects to the District Court's
statement that if the jury failed to reach a verdict, "the trial
will remain open and another jury will have to be selected to try
the case," on the ground that the statement suggested that "it
would be the jury's failure to reach a verdict that would be cause
of putting a second jury through the process."3 Finally, he
2 The government contends that this instruction "merely stated
the obvious to a jury that had sat through an eight-day trial."
That may be true, but the concern remains that, in combination
with the other statements, the District Court's statement
suggested the jurors should come to a decision because of the cost
in "time, effort and emotional strain" to counsel and the court.
3 The government argues that the language Amaro points to is
"no more coercive" than instructions that this Circuit approved in
United States v. Nichols, 820 F.2d 508 (1st Cir. 1987). But the
instruction in Nichols -- that the jury should consider that it
was "selected in the same manner and from the same source from
which any future jury must be selected" and that there is no reason
to believe that a future jury would be "more intelligent, more
impartial or more competent" to decide the case -- simply
encourages jurors to see themselves as capable of reaching a
verdict. Id. at 511-12. By contrast, the instruction the District
Court gave in this case suggested the jury would be burdening
another group of twelve people -- and the District Court -- if it
did not reach a verdict.
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contends that this aspect of the charge was incorrect, as it was
possible the government would decide not to try the case again and
thus that a second jury would not be "put[] . . . through the
process."
We are troubled by the aspects of the District Court's
supplemental instructions that Amaro highlights. For while the
District Court was free to tell the jury to "try to reach" a
verdict, the supplemental instruction as a whole included much
that seemed to pressure the jury to do more than simply try. In
fact, we have criticized language similar to the language the
District Court used in this case. See United States v. Paniagua-
Ramos, 135 F.3d 193, 198 (1st Cir. 1998) (stating that "the aura
of compulsion" in the trial court's Allen charge, which did not
include all three necessary elements, "was intensified" by the
court's statements that jury indecision "'is not going to be the
end of this' and that 'in the long run' 'I will have to simply try
this case again'"); Angiulo, 485 F.2d at 39 (disapproving of the
trial court's statements to the jury about the expense of trial
and that the court did not want to try the case again); Flannery,
451 F.2d at 883 (disapproving of the district court's statement
that "the case must at some time be decided").
But even if the District Court's use of this supplemental
language was clear or obvious error, Amaro still has not shown
that the District Court's Allen charge "'in its context and under
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all the circumstances' coerced the jury into convicting him," such
that his substantial rights were affected. Hernández-Albino, 177
F.3d at 38 (quoting Lowenfield, 484 U.S. at 237). In reaching
this conclusion, we acknowledge, as we have before, that there is
no way to be sure of the impact on a jury of an Allen charge. See
Angiulo, 485 F.2d at 40 ("The impact [of an Allen charge] can never
be assessed accurately, for the relevant events take place in the
secrecy of the jury room, and never appear in the trial record.").
We nonetheless look to the factors that we have identified in the
past as indicative of whether such a charge was coercive, and here
those factors do not support a finding of prejudice.
After receiving the Allen charge, the jurors continued
to deliberate for three hours, which is a period of time that we
have characterized before as a "significant period of reflection"
that counsels against finding a charge had a coercive effect. See
Vanvliet, 542 F.3d at 270; see also Hernández-Albino, 177 F.3d at
39 (collecting cases in which post-charge deliberations of even
one hour or less weighed against finding coercion). Moreover, the
core factual dispute in the case was a relatively straightforward
one -- whether Amaro was a willing or unwilling participant of the
drug transaction -- and the three hours of post-charge
deliberations constituted one-quarter of the total time the jury
spent deliberating. These facts, too, point against a conclusion
that the charge had a coercive impact. See Hernández-Albino, 177
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F.3d at 39 (the fact that the jury deliberated for a total of "3
1/2 hours, of which the deliberations after the Allen charge
represented one third," "negate[d] any suggestion of coercion"
where "[t]he jury's task was [the] relatively straightforward" one
of determining whether the defendant was "merely present" or
actively involved in a drug conspiracy).
More significant still, less than an hour after
receiving the Allen charge, the jury asked to review the videotape
of the staged drug transaction and then continued deliberating for
more than two hours. The jury's request to review this evidence
further suggests that the jurors took seriously the District
Court's instruction to "re-examine their positions" and "decide
the case if [they could] conscientiously do so," and thus that the
jurors did not reach their unanimous decision due to coercion
imposed by the charge.
In sum, the language of the instruction is concerning
and confirms the importance of district courts, in accord with our
prior admonitions, hewing to the pattern instruction when giving
an Allen charge. But this charge was not so clearly coercive on
its face as to compel a finding of prejudice, even if we assume
that some such charging language could. See Lowenfield, 484 U.S.
at 239 (acknowledging that the language of one Allen charge may be
more coercive than the language of another). And so, given the
other indications from the record that bear on our assessment of
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the harm that might have flowed from the problematic aspects of
the charge, we conclude that Amaro has not met his burden of
showing that the jury was coerced. Amaro therefore has not shown
that the District Court's Allen charge constituted plain error.
IV.
Amaro's final challenges to his convictions attack the
sufficiency of the evidence presented against him. "We review
challenges to the sufficiency of the evidence de novo, 'considering
all the evidence, direct and circumstantial, in the light most
favorable to the prosecution, drawing all reasonable inferences
consistent with the verdict, and avoiding credibility judgments,
to determine whether a rational jury could have found the defendant
guilty beyond a reasonable doubt.'" United States v. Negrón-
Sostre, 790 F.3d 295, 307 (1st Cir. 2015) (quoting United States
v. Alejandro-Montañez, 778 F.3d 352, 357 (1st Cir. 2015))
(alteration omitted).
A.
Amaro argues that the trial evidence was insufficient to
convict him of the count of conspiracy to possess with intent to
distribute cocaine because "[t]here is no evidence that [he] joined
the sham transaction conspiracy at any point prior to the entry
into the apartment on May 28, 2010," or that he "had any
involvement with any of the targets after May 28, 2010." To the
extent Amaro means to argue that the absence of such evidence
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precluded a reasonable jury from finding that he knowingly and
voluntarily participated in the conspiracy -- as the government
was required to prove, see United States v. Dellosantos, 649 F.3d
109, 116 (1st Cir. 2011) -- he is mistaken.
Amaro testified that he met with the two police officers
who provided protection for the same drug transaction before
traveling to the apartment where the drug transaction took place.
And the jury reviewed a video recording of the drug transaction
itself, in which Amaro is observed counting the sham cocaine,
helping to frisk the drug courier, and keeping watch as the drug
courier purchased the sham cocaine. From this evidence, a
reasonable juror could have concluded beyond a reasonable doubt
that Amaro entered the apartment having agreed to play the role of
security guard during the drug transaction in exchange for payment.
See United States v. Lara, 181 F.3d 183, 204 (1st Cir. 1999)
("Jurors are entitled to draw reasonable inferences from proven
facts.").
B.
Amaro next contends that, given the record evidence, no
reasonable juror could have rejected his defense that he acted
under duress and thus that no reasonable juror could have found
him guilty beyond a reasonable doubt on any of the counts of which
he was convicted. The parties appear to agree that, in reviewing
this argument, the question is whether any reasonable juror could
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have found by a preponderance of the evidence that Amaro did not
act under duress. But even assuming, favorably to Amaro, that the
question is whether any reasonable juror could have found beyond
a reasonable doubt that Amaro did not act under duress, see United
States v. Arthurs, 73 F.3d 444, 448 (1st Cir. 1996); United States
v. Amparo, 961 F.2d 288, 291 (1st Cir. 1992), we conclude that
Amaro's challenge fails.
To find an absence of duress, a reasonable juror would
have to find that Amaro did not "act[] under an immediate threat
of serious bodily injury or death" with "a well grounded belief
that the threat would be carried out[] and . . . no reasonable
opportunity to escape or otherwise to frustrate the threat."
Amparo, 961 F.2d at 291. Amaro testified that he acted under an
"immediate threat" when he aided the sham drug transaction. He
testified that he went to the apartment only in an effort to borrow
$400 from one of the two police officers who also provided
protection for the drug transaction. And he testified that he
stayed in the apartment only because he felt that his life would
be in danger if he tried to leave.
But "[c]redibility determinations are uniquely within
the jury's province, and we defer to the jury's verdict if the
evidence can support varying inferences." United States v. García-
Ortiz, 528 F.3d 74, 83 (1st Cir. 2008) (quoting United States v.
Calderón, 77 F.3d 6, 10 (1st Cir. 1996)). Here, the video evidence
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could support, beyond a reasonable doubt, a finding that Amaro's
testimony that he acted under duress was not credible. See United
States v. Rodriguez-Alvarado, 952 F.2d 586, 589 (1st Cir. 1991)
(noting that "a state of mind" "can rarely be proven by direct
evidence," and "is usually established by drawing reasonable
inferences from the available facts" (quoting United States v.
Bank of New England, 821 F.2d 844, 854 (1st Cir. 1987))). In
particular, the video recording of the staged drug transaction
shows everyone, including Amaro, appearing relaxed throughout,
with Amaro spending much of the time sitting on a couch, drinking
a beer, and laughing. Even the sham drug dealer's chain-saw
comments to Amaro are mixed with laughter, as if they are jokes.
V.
Amaro also challenges his sentence, and he does so on
two grounds. Both of his challenges concern the jury's finding
that his two drug offenses involved eleven kilograms of
cocaine -- a finding that subjected him to a ten-year mandatory
minimum in this case. See 21 U.S.C. § 841(b)(1)(A). Amaro argues
that because of the problems he has identified, the case should be
"remanded for resentencing without the applicability of the
minimum mandatory sentence" of ten years.
A.
Amaro first argues that the District Court committed
error under Alleyne v. United States, 133 S. Ct. 2151 (2013).
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Specifically, Amaro argues that the District Court did not instruct
the jury, and thus the jury did not find, that the amount of
cocaine attributable to Amaro was an element of the offense that
needed to be proven beyond a reasonable doubt.
As Amaro concedes that he did not raise this issue below,
our review is for plain error. See United States v. Harakaly, 734
F.3d 88, 94 (1st Cir. 2013). Amaro must therefore show "that the
error was clear or obvious, and that it both affected his
substantial rights and 'seriously impaired the fairness,
integrity, or public reputation of judicial proceedings.'" United
States v. Ramos-González, 775 F.3d 483, 499 (1st Cir. 2015)
(quoting United States v. Ramos-Mejía, 721 F.3d 12, 14 (1st Cir.
2013)). He has failed to do so.
Alleyne did not hold that a trial court must identify
weight as an element of an offense in instructing the jury.
Alleyne simply holds that, where weight increases the statutory
minimum, it is an element and thus must be proven beyond a
reasonable doubt. See Alleyne, 133 S. Ct. at 2155. As Amaro
acknowledges, the District Court clearly did instruct the jury
that it must find the drug quantity beyond a reasonable doubt. So
while the District Court did not specifically inform the jury that
drug quantity was an element of the offense, the District Court
did not plainly err in failing to do so.
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Nor are we persuaded by Amaro's contention that our
decision in United States v. Delgado-Marrero, 744 F.3d 167 (1st
Cir. 2014), requires a different conclusion. In ruling that the
instructions on drug quantity in Delgado were inadequate, we
rejected the government's argument that because "the initial jury
instructions unequivocally established the government's duty to
prove each element of the underlying offense beyond a reasonable
doubt," the jury had been properly instructed that drug quantity
must be found beyond a reasonable doubt. Id. at 186. We explained
that the government's argument "presume[d] that the jurors
understood that . . . 'drug quantity' was an element of the
underlying crime," but "[n]othing in the record support[ed] that
presumption." Id. We thus held that "given the timing and manner
in which the question was presented, the jurors understandably may
have failed to appreciate that the additional question represented
something more than an inconsequential afterthought." Id. at 187.
But here the jury was specifically instructed in advance
of its deliberations that it needed to find the requisite drug
quantity beyond a reasonable doubt. Thus, while in Delgado there
was a "reasonable likelihood" that the jury understood the court's
limited instructions to permit the application of something other
than the reasonable doubt standard in assessing drug quantity, id.
at 187-89; see United States v. Paz-Alvarez, 799 F.3d 12, 23-24
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(1st Cir. 2015) (quoting Victor v. Nebraska, 511 U.S. 1, 6 (1994)),
that is not so in this case.4
B.
Amaro next argues that, even if the jury was properly
instructed on drug quantity, the evidence was insufficient to
support a finding that the quantity of cocaine attributable to his
offenses exceeded five kilograms. For that reason, he contends,
he should be resentenced without the ten year mandatory minimum
that applied because of that finding.
Amaro argues that there was "no evidence of the actual
weight of the [sham] cocaine in this case." But the jury needed
to find beyond a reasonable doubt only that Amaro believed that
the amount of cocaine involved in the transaction exceeded five
kilograms in order for Amaro to be subject to a ten-year mandatory
minimum sentence. See United States v. Sánchez-Berríos, 424 F.3d
65, 78 (1st Cir. 2005) (holding that "[a] culpable conspiracy may
exists even though the conspirators misapprehend certain facts");
United States v. Medina-Garcia, 918 F.2d 4, 7-8 (1st Cir. 1990)
(holding that "factual impossibility" is not a "defense to a charge
4 Amaro also argues, albeit in passing, that the District
Court erred because it instructed the jury only that it must find
the amount of drugs involved in the drug transaction, rather than
the amount of drugs attributable to Amaro. But the District Court
instructed the jury to "make a finding as to the quantity of
[cocaine] that Mr. Amaro either conspired or attempted to possess."
And while the verdict form was not as precise as those
instructions, Amaro does not challenge that form.
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of attempt" because "[t]he criminal intention to commit the
substantive crime . . . together with the fact that the crime was
not consummated due to an external fact, are sufficient to charge
[a] defendant with an attempt" (internal quotation marks
omitted)). And the record provides clear support for such a
finding.
The video recording of the sham drug transaction shows
Amaro counting brick-shaped objects that had been designed to look
like kilograms of cocaine. Amaro testified at trial that he
thought each of the "bricks" was a kilogram of cocaine. The
evidence further showed that there were eleven bricks, and that
Amaro counted all eleven and announced that count to the group.
The jury could thus conclude beyond a reasonable doubt that Amaro
believed that the total weight of the cocaine involved in the
transaction was eleven kilograms.
VI.
Having found no error, we affirm Amaro's convictions and
sentence.
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