United States v. Navedo-Concepcion

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 02-1448
UNITED STATES OF AMERICA,
Appellee,
v.
ISRAEL NAVEDO-CONCEPCIÓN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvadore E. Casellas, U.S. District Judge]
Before
Boudin, Chief Judge,
Baldock,* Senior Circuit Judge,
and Howard, Circuit Judge.
Peter Goldberger with whom Pamela A. Wilk was on brief for
appellant.
Nelson Pérez-Sosa, Assistant United States Attorney, with whom
H.S. Garcia, United States Attorney, and Sonia I. Torres-Pabón,
Assistant United States Attorney, was on brief for appellee.
August 26, 2003
*
Of the Tenth Circuit, sitting by designation.
BALDOCK, Senior Circuit Judge. In November 1999, a
Puerto Rico grand jury returned a single-count indictment charging
Defendant, Israel Navedo-Concepción, also known as “Gallo,” and
seven other named co-defendants with conspiracy to possess with the
intent to distribute cocaine in amounts which exceed five (5)
kilograms and heroin in amounts which exceed one (1) kilogram, in
violation of 21 U.S.C. § 846. The indictment alleged a four-year
conspiracy between the named defendants and others unknown to the
grand jury to distribute narcotics in the La Perla section of Old
San Juan. All named co-defendants pled guilty pursuant to plea
agreements. Defendant, however, proceeded to trial. Following a
seven-day trial, the jury convicted Defendant of the sole count in
the indictment. The district court sentenced Defendant to 151
months imprisonment.
Defendant appeals, arguing (1) the district court erred
by failing to sua sponte deliver a limiting instruction on the use
of prior inconsistent statements by a witness; (2) the prosecutor’s
improper remarks during closing argument warrant a new trial; (3)
the district court plainly erred by instructing the jury about the
content of a witness’ testimony; (4) the district court erred by
not making an independent relevant conduct finding as to the drug
quantity attributable to Defendant; and (5) the district court
erred by failing to give a reason pursuant to 18 U.S.C. § 3553(c)
for imposing a sentence at the top of the guideline range. The
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parties are familiar with the facts of the case, and we will not
repeat them here except where necessary. We have jurisdiction
pursuant to 28 U.S.C. § 1291. We affirm the district court on
Defendant’s first four issues. But we remand for resentencing in
accordance with § 3553(c) due to the district court’s failure to
state in open court reasons for the selected sentence.
A.
Defendant first argues the district court erred by
failing to sua sponte give a limiting instruction on how the jury
should treat a witness’ prior inconsistent statements. Because
defense counsel did not object, Defendant concedes we review this
issue for plain error. Under the four-part plain error inquiry,
(1) an error must have been committed; (2) the error must be plain
or obvious; (3) the plain error must affect substantial rights,
which generally means that it must have been prejudicial; and (4)
the error must seriously affect the fairness, integrity or public
reputation of judicial proceedings. See United States v.
Pena-Lora, 225 F.3d 17, 29 (1st Cir. 2000) (citing United States v.
Olano, 507 U.S. 725, 732-33 (1993)).
On direct examination, defense witness Luis Mojica
Bultron (“Bultron”) testified under oath that he did not recognize
Defendant, that he did not sell drugs for Defendant, and that he
had not seen Defendant selling drugs in La Perla. This testimony
contradicted the testimony of the Government’s witness, Catherine
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Rivera Valle (“Valle”), who testified she and Bultron bought drugs
from Defendant. On cross examination, Bultron acknowledged he had
heard of a person nicknamed “Gallo”, but denied that he told FBI
agent Scott Nielson in interviews that “Gallo” sold narcotics or
that he had personally purchased heroin from Gallo. Bultron also
denied he told Sgt. Pablo Quiñones or other law enforcement
officials that Gallo sold “champagne”1 heroin. Bultron admitted on
cross examination that he told agents of a meeting that a man known
as “Sandro” called and that someone named “Gallo” attended.
Bultron also admitted he had seen Defendant in a picture shown to
him by law enforcement, but stated he was unsure whether the
picture shown to him at trial was the same picture.
In response to this testimony, the Government called
Sergeant Pablo Quiñones in rebuttal. Quiñones testified that,
during an interview, he had shown Bultron a photograph of Defendant
and Bultron identified Defendant as “Gallo.” Quiñones also
testified that Bultron told him in an interview that Gallo would
meet with others to form an enterprise and to discuss the drug
trade in La Perla. Quiñones also testified that Bultron told him
that “Gallo” sold champagne heroin.
Under Fed. R. Evid. 801(d)(1)(A), a declarant’s prior
inconsistent statements are hearsay and inadmissible as substantive
1
“Champagne” heroin refers to the color of packaging in which
the heroin was wrapped, and champagne heroin apparently was of
superior quality.
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evidence unless they were made “under oath subject to the penalty
of perjury at a trial, hearing, or other proceeding, or at a
deposition.” Fed. R. Evid. 801(d)(1)(A); see also Finn v.
Consolidated Rail Corp., 782 F.2d 13, 16 n.4 (1st Cir. 1986).2
Bultron’s statements to Quiñones were not made under oath at a
trial or like proceeding, but rather in interviews with law
enforcement authorities. Thus, Quiñones’ testimony was
inadmissible for the truth of the matter asserted. Defendant
concedes, however, the testimony was admissible as impeachment
evidence. See United States v. Winchenbach, 197 F.3d 548, 558 (1st
Cir. 1999) (concluding a witness’ prior inconsistent statement is
admissible to attack the witness’ credibility under Fed. R. Evid.
613(b)). Despite this concession, Defendant argues the district
court had a duty to sua sponte deliver a limiting instruction
informing the jury that they could not consider Bultron’s prior
inconsistent statements for their truth, but only as they bore on
his credibility.
We do not find plain error in the trial court’s failure
to sua sponte deliver a limiting instruction in this circumstance.
Pursuant to Fed. R. Evid. 105–
2
Defendant notes that under Rule 801(d)(1)(C), a prior
statement by a witness is not hearsay if it was “one of
identification of a person made after perceiving the person.”
Consequently, Defendant agrees Quiñones’ testimony that Bultron
previously identified the person in the photograph as “Gallo” was
not hearsay, and thus could be considered substantively by the
jury.
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When evidence which is admissible as to one
party or for one purpose but not admissible as
to another party or for another purpose is
admitted, the court, upon request, shall
restrict the evidence to its proper scope and
instruct the jury accordingly.
Id. (emphasis added). Based on the Rule’s language, we previously
have concluded that the failure to request an instruction waives
the argument on appeal. United States v. Mateos-Sanchez, 864 F.2d
232, 238 (1st Cir. 1988). Consequently, Defendant’s arguments that
the district court erred at all, or that the error was plain and
obvious, are questionable.
But even assuming the district court plainly erred, the
alleged error does not seriously affect the fairness, integrity or
public reputation of judicial proceedings. The jury heard both of
Bultron’s statements and was able to observe both his demeanor and
Quiñones’ demeanor. Both witnesses were subject to direct and
cross examination. The offered testimony did not concern
Defendant’s prior convictions or prior uncharged acts, and was not
highly inflammatory or so prejudicial that the district court
should have offered a limiting instruction absent a request from
the defense. Compare United States v. DeGeratto, 876 F.2d 576, 584
(7th Cir. 1989) (suggesting in dicta that even if cross examination
about uncharged prior bad acts was properly admitted under Fed. R.
Evid. 404(b), district court had a duty to sua sponte offer a
limiting instruction on highly prejudicial testimony); Dawson v.
Cowan, 531 F.2d 1374, 1377 (6th Cir. 1976) (finding plain error in
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the failure to give a limiting instruction regarding evidence of a
prior conviction for attempted rape where the defendant was facing
both a principal charge of attempted rape and a habitual offender
charge). We find no special circumstances in this case that would
require the district court to sua sponte offer a limiting
instruction. See United States v. Malik, 928 F.2d 17, 23 (1st Cir.
1991) (finding no plain error where district court did not sua
sponte offer a limiting instruction on law enforcement agent’s
testimony that defendant made statements to agent inconsistent with
defendant’s trial testimony).
B.
Defendant next argues the prosecutor made improper
closing arguments by misrepresenting the evidence and vouching for
a witness.
1. Misrepresentation of Evidence
Defendant first contends that, in closing argument, the
prosecutor misrepresented Bultron’s testimony. The prosecutor
stated that although Bultron was evasive and hesitant to answer
questions, he eventually testified that he knew Gallo, and knew
Gallo ran a drug business. Defense counsel objected to this
characterization, to which the district court stated, “Let’s move
on.” The prosecutor then continued and stated that Bultron
testified Gallo’s product was champagne. The prosecutor also
stated Bultron admitted he knew that Gallo, Sandro, and the rest of
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the “committee” had Friday meetings in which they organized the La
Perla drug trade.
“This Court has fashioned a three prong test for
examining whether the prosecution’s misconduct ‘so poisoned the
well’ that the trial’s outcome was likely affected, thus warranting
a new trial.” United States v. Joyner, 191 F.3d 47, 54 (1st Cir.
1999). “We examine: (1) whether the prosecutor’s conduct was
isolated and/or deliberate; (2) whether the trial court gave a
strong and explicit cautionary instruction; and (3) whether it is
likely that any prejudice surviving the judge’s instruction could
have affected the outcome of the case.” Id. Where Defendant
timely objected, we review de novo the question of whether the
comment was improper and review for abuse of discretion the
question whether the misconduct, if any, warrants a new trial.
United States v. Hernandez, 218 F.3d 58, 68 (1st Cir. 2000). Where
the defendant has not objected, we review for plain error. Id. at
69.
The record reveals some of the prosecutor’s statements
about Bultron’s statements were not fully supported by the
testimony. Bultron did not testify that he knew “Gallo,” although
he eventually admitted under cross examination that he previously
told an FBI agent that he knew someone named Gallo who lived in
Wipe Out and operated a store there. Bultron did not testify about
Friday meetings as stated by the prosecutor, nor did Quiñones
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testify that Bultron previously told agents about Friday committee
meetings. Only Valle testified about Friday meetings. Bultron
also did not testify that he observed any committee meetings or
that Gallo attended those meetings, or that the meetings concerned
running the drug trade in La Perla. On cross examination, he
admitted he previously told agents about two meetings Sandro called
which “Gallo” attended. The prosecutor did not inquire into the
substance of the meetings, however. Thus, no testimony was
produced that the meetings to which Bultron was referring involved
discussions about the rules of the La Perla drug trade as the
prosecutor stated in closing argument. And Bultron denied that he
knew Gallo sold champagne or heroin or that he personally purchased
drugs from Gallo, contrary to the prosecutor’s closing statements.
He further denied that he told agents this information. The
prosecutor seemed to discuss Quiñones’ testimony that Bultron made
these statements to agents in earlier interviews as if the
statements were Bultron’s live testimony. Thus, the prosecutor’s
statements about Bultron’s testimony misstated the record in some
respects.
We agree with Defendant these comments were improper.
But we do not find sufficient prejudice to warrant a new trial.
Defendant presented no evidence the prosecutor’s conduct was
deliberate, and the misstatements were isolated to this one
witness. The witness’ testimony was less than clear on some
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points, and the witness was impeached by prior statements to
investigators. Thus, the prosecutor may have innocently, albeit
negligently, confused Bultron’s live testimony and the impeachment
testimony. In final instructions, the district court instructed
the jury as follows:
The statements that the lawyers made are not
to be considered by you either as evidence in
the case, which comes only from witnesses and
exhibits, or as [] instruct[ions] on the law,
which will come only from me. These
statements and arguments are intended to help
you understand the issues and the evidence as
it comes in, as well as the positions taken by
both sides.
Although not contemporaneous, the instruction informs the jury that
the statements of the lawyers are not evidence. We conclude the
misstatements were not so egregious, inflammatory, or pervasive
that they could have affected the outcome of the case.3
2. Vouching
Defendant also challenges comments during the
prosecutor’s closing arguments which he alleges constitute improper
vouching for a witness and for the Government’s overall case.
During closing argument, defense counsel suggested witness Jose
Mercado Febles lied about a meeting among drug dealers on
Thanksgiving Day which Defendant allegedly attended. Defense
3
Defendant also asserts the prosecutor misrepresented the
testimony of Valle and Quiñones. After reviewing the record, we
conclude the prosecutor’s description of these witnesses’ testimony
constituted reasonable argument based on the actual testimony.
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counsel argued Febles was lying about this meeting because Febles
claimed another dealer, Papo Aviles, was present at the meeting
when Aviles actually was in jail on Thanksgiving Day. In response
to this argument, the prosecutor argued defense counsel was
misreading and misinterpreting the testimony, and thus Febles “had
not lied.” Defendant admits he did not object to the prosecutor’s
statement in closing argument that Febles “did not lie.” Thus we
review this issue for plain error.
The prosecutor’s choice of words was unfortunate. What
the prosecutor meant was that the defense had not shown Febles
lied. According to the prosecutor’s view of the testimony, Febles
did not testify that Aviles was at the Thanksgiving Day meeting.
Hence his testimony was not contradictory with Aviles being in
prison on Thanksgiving Day. While we caution prosecutors to be
more careful in their choice of words, we do not find this comment
affected Defendant’s substantial rights, nor seriously affects the
fairness, integrity or public reputation of judicial proceedings.
The comment was isolated to one statement regarding one witness,
and the meaning of the comment was not the usual vouching problem
where the prosecutor assures the jury the witness is telling the
truth. See United States v. Figueroa-Encarnacion, 335 F.3d 28, 33
(1st Cir. 2003) (defining the “archetypal example of vouching” as
“a prosecutor’s claim that the witness should be believed because
the prosecutor–a representative of the government–believes the
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witness . . . .”). Rather, the prosecutor argued the defense was
mischaracterizing Febles’ testimony. Instead of stating Febles
“did not lie,” the prosecutor should have said the defense had not
caught Febles in an obvious lie.
Defendant also challenges the prosecutor’s comments in
closing argument that the Government had presented only a “sample”
of the evidence. Specifically, the prosecutor argued--
And what my colleague Miss Sulzbach told you
in her opening statement is that she would
give you a sample, an opportunity to hear from
three people who would tell you about the drug
trade in La Perla.
. . .
What you heard from the government ladies and
gentlemen was a sample, if you think this week
trial was long, if we had brought in every one
that knew about drugs in La Perla we would
have been here for months.
. . .
You have to realize that what the government
brought you was a sample. It wasn’t a day to
day record of everything that went on in La
Perla drug world. It was a sample and that is
all we are asking you consider, this sample of
activity in La Perla drug world involving the
defendant and the [other] individuals involved
in this committee or this group.
. . .
And you saw a sample, not only the drug
dealings that went on but just a very small
portion and the government has proven its case
beyond a reasonable doubt.
In response, defense counsel in closing argued if this was just a
“sample,” the Government should have introduced more compelling
evidence of Defendant’s participation in the drug trade, such as
video, photographs, or tape recordings of controlled buys.
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The prosecutor’s use of the “sample” language constitutes
error. A prosecutor may not suggest to the jury that the
Government has more evidence establishing a defendant’s guilt than
it has presented to the jury. See United States v. Balsam, 203
F.3d 72, 88 (1st Cir. 2000) ("[A] prosecutor may not . . . indicate
that facts outside the jury’s cognizance support the testimony of
the government’s witnesses.") (internal quotation and citation
omitted). Although a close case, we conclude the prosecutor’s ill
advised statements did not prejudice Defendant, nor seriously
effect the fairness, integrity or public reputation of judicial
proceedings.
Most of the comments suggested the evidence presented was
just a sample of the overall drug scene in La Perla and the
overarching investigation of the drug trade in La Perla, without
specifying that the Government had more information specifically
going to Defendant’s guilt. In reaching a verdict, the jury
necessarily had to accept or reject the testimony of the
Government’s cooperating witnesses. The prosecutor’s “sampling”
comments made in closing argument likely did not weigh heavily in
this determination. Either the jury believed the witnesses who
testified they bought from or sold drugs to Defendant, or they did
not. Further, defense counsel was able to effectively use this
“sampling” language in closing argument, further reducing any
potential prejudice. While we harshly condemn the Government’s
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comments in this case, we cannot say on plain error review that the
comments warrant reversal.
C.
Defendant next argues the trial court committed plain
error in instructing the jury when it asserted as fact that witness
Bultron testified he viewed a photograph of Defendant shown to him
by law enforcement officers. Defendant concedes he did not object
to the challenged instruction, and hence we review for plain error.
At the close of the case, the court instructed the jury–
No[w], witness Luis Mojica Bult[r]on testified
that he viewed a photograph of the defendant
Israel Navedo Concepcion which was shown to
him by a law enforcement officer. The police
collect pictures of many people from many
different sources and for many different
purposes. The fact that the police or a law
enforcement officer had defendant’s picture
does not mean that he committed this or any
other crime, and it must have no effect on
you[r] consideration of this case.
Defendant now claims Bultron did not testify that he had identified
Defendant from a photograph shown to him by law enforcement
officers, and thus the district court’s instruction erroneously
resolved a contested factual issue.
The district court did not misstate the evidence.
Bultron did in fact testify that he “viewed a photograph of the
defendant Israel Navedo Concepcion which was shown to him by a law
enforcement officer.” Under questioning by defense counsel,
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Bultron denied he had seen Defendant in person, but admitted to
seeing him in a photograph:
Q: Sir, tell the jury when was the first time
that you saw this gentleman?
A: The first time? Today.
Q: And before today?
A: Before today I had been shown a photo.
Q: Who showed you a photo?
. . .
A: The photo I saw it for the first time at
the C.I.C. in San Augustine.
. . .
Q: And after that first time, when was the
next time if any other time?
A: Second time was at the Department of
Justice.
Q: I ask you if any federal agent has shown
you a photo of my client?
A: Scott.
. . .
Q: Where was that, that Scott showed you a
photo of my client?
A: That was in the office of Domingo Alvarez.
. . .
Q: On that third occasion, who showed you the
photo of my client?
A: It was another federal agent, I was
brought.
Following this colloquy, Bultron testified that the agents asked
whether he recognized the individual in the photographs, and he
told the agents he did not. Thus, Bultron did testify that law
enforcement authorities showed him a photo of Defendant, as the
district court’s instruction indicated. A separate question
existed about whether Bultron identified the person in that photo
as “Gallo” the drug dealer from La Perla, but the district court’s
instruction did not speak to that issue. The district court did
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not misstate the evidence or decide a contested fact issue for the
jury, and thus did not plainly err.
D.
Defendant next argues the district court erred by relying
on the jury verdict for the amount of cocaine and heroin
attributable to Defendant as relevant conduct at sentencing. In a
drug conspiracy case, the jury should determine the existence of
the conspiracy as well as any facts about the conspiracy that will
increase the possible penalty for the crime of conviction beyond
the default statutory maximum. Derman v. United States, 298 F.3d
34, 42 (1st Cir. 2002). But the judge should determine, at
sentencing, the particulars regarding the involvement of each
participant in the conspiracy. Id. at 43. “This means that once
the jury has determined that the conspiracy involved a type and
quantity of drugs sufficient to justify a sentence above the
default statutory maximum and has found a particular defendant
guilty of participation in the conspiracy, the judge lawfully may
determine the drug quantity attributable to that defendant and
sentence him accordingly (so long as the sentence falls within the
statutory maximum made applicable by the jury's conspiracy-wide
drug quantity determination).” Id. Defendant thus contends that
while the jury could find the overall conspiracy involved amounts
exceeding those charged in the indictment, the district court
failed to make an individualized determination of what drug
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quantities were reasonably foreseeable to Defendant specifically,
and thus attributable to him as relevant conduct.
We disagree. The district court instructed the jury in
such a way that the jury had to find Defendant personally
responsible for the amounts charged in the indictment to find
Defendant guilty of the overall conspiracy. After instructing the
jury about the elements of conspiracy, the district charged the
jury as follows:
The crime of conspiracy is complete upon the
agreement to commit the underlying crime.
The underlying crime is possession with
intent to distribute a controlled substance.
Israel Navedo Concepcion is accused of
conspiring with others to possess with the
intent to distribute to someone else cocaine,
in an amount exceeding five kilograms and
heroin in an amount exceeding on[e] kilogram
from on or about 1995 until the date of the
indictment. . . . For you to find Israel
Navedo Concepcion guilty of this crime you
must be convinced beyond a reasonable doubt:
First, that from on or about 1995 until
the date of his indictment, Israel Navedo
Concepcion possessed cocaine, in an amount
exceeding five kilograms and heroin, in an
amount exceeding one kilogram, either actually
or constructively.
Second, that he did so with the
specific intent to distribute the specified
amounts of cocaine and heroin over which he
had actual or constructive possession; and
Third, that he did so knowingly and
intentionally.
(Emphasis added). Based on these instructions, the jury had to
find Defendant personally possessed with intent to distribute over
five kilograms of cocaine and over one kilogram of heroin. By
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finding Defendant guilty, the jury made these factual findings
against Defendant.
Even if the district court were at liberty to attribute
a lesser drug quantity to Defendant for sentencing purposes, the
district court expressed its belief that Defendant was personally
responsible for the drug quantities alleged in the indictment:
. . . I presided over this trial and I have no
question in my mind after viewing all of the
evidence and all of the witnesses and the jury
having found on this, but I as presiding judge
have no qualms or question whatsoever that
this defendant should be held accountable for
a minimum of the amount [charged] in the
indictment. For a minimum.
Thus, even were we to conclude the district court must make a
particularized finding of the drug amount for which Defendant was
personally responsible, the district court made that finding. A
remand for the district court to reiterate its finding would be an
empty gesture.
E.
Finally, Defendant argues the district court erred by
failing to state its reasons for sentencing Defendant at the top
end of the guideline range. The district court determined the
guideline range was 121-151 months, and then imposed the maximum
sentence. Title 18 U.S.C. § 3553(c) requires the sentencing court
to explain how it determined the applicable guideline range and, if
that range exceeds twenty-four months, why it selected the
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particular point it did within that range.4 The Government
concedes the district court did not state any reasons supporting
its selected sentence at the top of the guideline range as
required. Accordingly, we remand to the district court for
resentencing in compliance with § 3553(c). See United States v.
McDowell, 918 F.2d 1004, 1012 (1st Cir. 1990) (remanding for
resentencing where district court made no findings pursuant to
§ 3553(c) to support a four level adjustment for organizer/leader
status).
For the foregoing reasons, we AFFIRM the district court
in all respects except for its failure to state reasons for its
selected sentence. As to that issue, we REMAND for resentencing.
4
Section 3553(c) provides--
(c) Statement of reasons for imposing a sentence. The
court, at the time of sentencing, shall state in open
court the reasons for its imposition of the particular
sentence, and, if the sentence--
(1) is of the kind, and within the range, described in
subsection (a)(4), and that range exceeds 24 months, the
reason for imposing a sentence at a particular point
within the range; . . . .
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