United States v. Nelson-Rodriguez

United States Court of Appeals
For the First Circuit
Nos. 00-1422 Volume I of II
00-1457
00-1534
00-1560
00-1561
00-1628
01-1150
01-1873
01-2248
UNITED STATES,
Appellee,
v.
MILTON A. NELSON-RODRIGUEZ; LUIS A. ROMERO-LÓPEZ;
MIGUEL A. RODRIGUEZ-RIVERA; EDUARDO ARROYO-MALDONADO;
CARLOS BONET-GONZALEZ; ANGEL CHEVERE-GONZALEZ;
LUIS CARIBE-GARCIA; RAÚL RIVERA-PÉREZ; VICTOR M. VALLE-LASALLE,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Boudin, Chief Judge,
Lynch, Circuit Judge,
and Shadur,* Senior District Judge.
* Of the Northern District of Illinois, sitting by designation.
Marlene Aponte Cabrera for appellant Nelson-Rodriguez.
Rafael F. Castro Lang for appellant Romero-López.
Jose A. Suarez-Santa for appellant Rodriguez-Rivera.
Raymond L. Sanchez Maceira for appellant Arroyo-
Maldonado.
Mauricio Hernandez Arroyo for appellant Bonet-Gonzalez.
Raymond Rivera Esteves for appellant Chevere-Gonzalez.
Marlene Gerdts for appellant Caribe-Garcia.
Linda George for appellant Rivera-Pérez.
Luz M. Rios Rosario for appellant Valle-Lasalle.
William C. Brown, Attorney, U.S. Department of Justice,
with whom H.S. Garcia, United States Attorney, was on brief for
appellee.
February 7, 2003
LYNCH, Circuit Judge. Thirteen individuals were indicted
on February 5, 1998 for participating in a conspiracy to possess
with intent to distribute 1,000 kilograms of cocaine, five
kilograms of heroin, and 5,000 pounds of marijuana, in violation of
21 U.S.C. § 846 (2000). This case involves the appeals of nine of
those defendants: Milton Nelson-Rodriguez ("Nelson"), Luis Romero-
López ("Romero"), Miguel Rodriguez-Rivera ("Rodriguez"), Eduardo
Arroyo-Maldonado ("Arroyo"), Carlos Bonet-Gonzalez ("Bonet"), Angel
Chevere-Gonzalez ("Chevere"), Luis Caribe-Garcia ("Caribe"), Raúl
Rivera-Pérez ("Rivera"), and Victor Valle-Lasalle ("Valle"). Six
of the defendants -- Nelson, Rodriguez, Arroyo, Bonet, Chevere and
Caribe -- were convicted at a trial in September 1999.1 Rivera and
Valle were convicted at a second trial in September 2000. Romero
pled guilty before trial.
This case raises a large number of issues; the more
important ones include:
(1) whether the authorization for a wiretap was invalid when the
government withheld certain information going to the
trustworthiness of a relied-upon confidential informant in the
affidavit used to apply for a wiretap order;
1
There were also two other defendants at the September 1999
trial who are not parties to this appeal, Julio Ortiz Guevara
("Ortiz") and Luis Diaz (whom we will refer to as "Luis Diaz" to
distinguish him from a confidential informant named Jose Diaz).
The jury was unable to reach a verdict with respect to Ortiz; he
subsequently entered a guilty plea and has not appealed. Luis Diaz
was found guilty and has not appealed his conviction.
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(2) whether a jury determination as to drug quantity and type for
the entire underlying conspiracy is adequate for Apprendi purposes,
and when an Apprendi claim must be raised to be preserved;
(3) the meaning of "special skill" in U.S.S.G. § 3B1.3, which
authorizes a two-level increase in sentence if the defendant "used
a special skill, in a manner that significantly facilitated the
commission or concealment of the offense";
(4) a claim that the government failed to move for a substantial
assistance reduction of sentence under U.S.S.G. § 5K1.1 as
retaliation against a cooperating defendant for telling the truth;
(5) the existence of constraints, if any, on the ability of a
district judge to impose a term of supervised release in cases
under §§ 841 and 846 that is in excess of the term contemplated by
U.S.S.G. § 5D1.2;
(6) a claim of deprivation of a right to speedy trial arising out
of a 14-month period between conviction and sentencing;
(7) a claim of improper ex parte contact between a probation
officer and the prosecution after the initial presentence report
but before the filing of an amended report which supported a new
sentence enhancement;
(8) on the review of a denial for a motion for new trial, a claim
that defense counsel had a potential conflict of interest because
he simultaneously represented another conspirator, who was
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previously acquitted but then had pled guilty, in sentencing issues
resulting from a plea agreement.
Save for one aspect of a claim by Rodriguez concerning
his term of supervised release, we reject all of the claims raised
by defendants. The length of the opinion is mandated by the fact
that it is the equivalent of nine opinions as to the nine
defendants.
I.
With challenges to the sufficiency of the evidence, we
recite the facts in the light most favorable to the jury's guilty
verdicts. See United States v. Bayes, 210 F.3d 64, 65-66 (1st Cir.
2000). As to other issues, we objectively view the evidence of
record. See United States v. Piper, 298 F.3d 47, 50 (1st Cir.
2002).
A. The Investigation
An FBI investigation of the conspiracy, led by FBI
Special Agent Michael Plichta, began when Jorge Hernandez-Miller
("Hernandez") agreed to infiltrate a drug trafficking organization
run by Rivera and serve as a confidential informant ("CI").
Hernandez had been convicted in a 1993 drug importation case known
as the "Al Capone" case and served 36 months in jail, a reduced
sentence because he had cooperated with the government in that case
as well. In 1997, two years after Hernandez was released from
prison, he told the FBI that he wanted to help apprehend
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individuals from the Al Capone case who were still at large.
Hernandez said he wanted to cooperate with the government because
he feared for the safety of himself and his family; some of the Al
Capone individuals still at large, he claimed, broke into his house
while he was in prison. Under his agreement with the FBI,
Hernandez was to receive twenty-five percent of the forfeitures
made as a result of his cooperation. By September 7, 1999, he had
received $21,000.
In the course of their interactions, Hernandez heard
Rivera mention names of coconspirators, including Caribe and Bonet,
who knew that Hernandez had cooperated with the government in the
Al Capone case. Hernandez, fearing that these conspirators could
have exposed him as an informant, introduced another CI, Jose Diaz,
as his employee. He hoped to have Diaz attend any meetings where
the people in attendance might recognize Hernandez from his time as
a drug trafficker.
Hernandez and Diaz were the government's main witnesses
at both of the trials. A third principal government witness, Luis
Torres Orosco ("Torres"), was a charged defendant who pled guilty
and testified about his involvement in the conspiracy. The
government also played numerous audiotapes of conversations in
which the defendants discussed their drug trafficking activity.
The FBI investigators had obtained tapes both from consensual
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recordings made by the CIS and from a wiretap on a cellular phone
that Hernandez sold to Rivera.
B. The Conspirators
The defendants were part of a drug operation led by
Rivera that imported drugs from Colombia to sell in Puerto Rico and
New York. According to the indictment, the conspiracy began "no
later than in or about April 1997" and continued until November
1997, when arrests in the case began. The evidence at the two
trials showed, inter alia, four planned importations of cocaine
from Colombia (only one of which was successful), one planned
importation of heroin from St. Maarten, and one planned importation
of more than 4,000 pounds of marijuana.
Each defendant had a different role in the conspiracy.
Rivera was the leader and Arroyo was his lieutenant. They arranged
for the boat, navigational charts, and radios necessary to import
the drugs. When Arroyo became too greedy, Rivera replaced him with
Valle.
Bonet was to captain Rivera's receiving boat, which would
take the drugs to Puerto Rico in at least one of the early
shipments. On the fourth planned importation, Ortiz was to serve
in this role. Torres was the coordinator of certain drug
shipments. Caribe oversaw security at the drop-off point on shore
and, through his brother-in-law, Mark Figueroa-Jarvis ("Figueroa"),
helped arrange for the distribution of the drugs in New York.
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Nelson was involved in distribution of the imported drugs, and was
also captured on audiotape discussing with Rivera plans to import
between 6,000 and 10,000 pounds of marijuana. Rodriguez took the
cocaine from Puerto Rico to New York, where he sold it to Figueroa.
CI Hernandez, meanwhile, worked with the Colombians to
get the drugs to Puerto Rico, and also traveled to St. Maarten on
Rivera's behalf to negotiate the heroin importation. CI Diaz
participated in various activities of the conspiracy, including
trips to Colombia and St. Maarten. Hernandez also introduced an
undercover agent of the U.S. Customs Service, Agent Victor Rosa, as
the captain of a boat that was to bring cocaine from Colombia to a
rendezvous with Rivera's boat.
C. The Drug Importation Plans
1. Planned Importation of 1,100 Kilograms of Cocaine
CI Hernandez testified about a planned importation of
1,100 kilograms of cocaine in early 1997. Hernandez had
connections in Colombia through Humberto Arduandua, a Colombian
drug trafficker with whom Hernandez had been imprisoned. Arduandua
put Hernandez in contact with Rivera in the spring of 1997; he told
Rivera that Hernandez could be an intermediary between the
Colombian drug suppliers and Rivera's drug distribution
organization to facilitate cocaine importation. As an
intermediary, Hernandez was responsible for examining the boats and
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equipment used to transport the drugs from Colombia and the
delivery site for the drugs in Puerto Rico.
Hernandez called Rivera on April 25, 1997, and the two
set up a meeting later that night. This call, like many between
the CIS and members of Rivera's organization, was recorded by the
FBI. Hernandez met Rivera and Arroyo, whom Rivera introduced as
one of his employees, at the Condado Hotel, and they began
negotiating a contract to import 1,100 kilograms of cocaine from
Colombia. Hernandez and Rivera agreed to the basic details of the
transaction: Hernandez would arrange for the drugs to be
transported from Colombia to a location approximately 35 miles off
the northern coast of Puerto Rico, where Rivera's organization
would pick up the drugs in their own boat and bring the drugs into
Puerto Rico. Rivera told Hernandez that he wanted 25 percent of
the load from the Colombians as payment and that half of the
remaining load would be sold in Puerto Rico while the other half
would be shipped to New York.
Two days later, Hernandez met Rivera and Arroyo to
inspect the shore area where the load would be delivered. They
showed him the elevated area from which Rivera's employees would
watch the delivery. Rivera also told Hernandez that Arroyo had a
friend who owned a car rental business where the drugs would be
stored.
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At their next meeting, on May 3, 1997, Hernandez met
Rivera and Arroyo at a Travelodge hotel and introduced them to
Rosa, the undercover agent posing as one of Hernandez's employees.
The FBI videotaped this meeting with a hidden camera. Hernandez
told Rivera that Rosa would captain the boat that would bring the
cocaine load from Colombia to Rivera's boat off the coast of Puerto
Rico. Arroyo brought navigational charts to the meeting, which the
conspirators used to pinpoint the location where Rivera's boat
would pick up the drugs from Rosa. A few days later, Rivera
provided Hernandez with a two meter radio, which would be used
during the operation.
In the summer of 1997, Hernandez and his putative
employee, CI Diaz, traveled to Venezuela and Colombia to finalize
the division of the drugs between the Rivera/Hernandez organization
and the Colombians. Hernandez later spoke to Rivera about how they
should split their share of the cocaine load, and Rivera suggested
that he and Hernandez become partners.
When Hernandez and Diaz returned from their trip,
Hernandez learned that Arroyo had been replaced by Valle, another
of Rivera's employees, because Arroyo had asked for one million
dollars as payment for his role in the shipment. Rivera told
Hernandez that they would use different equipment and a different
shore area as a result of the replacement and asked Hernandez to
look at both on his next trip to the island. Hernandez later met
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with Rivera and Valle to inspect the new boat and shore area. He
also saw the house where Rivera's team would temporarily store the
drugs. At this meeting, Valle showed Hernandez a police scanner
and told him that they would have "no trouble" because one of his
relatives worked with the local police. The planned shipment was
never made because several problems arose, including the arrest of
one of the cocaine suppliers in Venezuela.
2. Successful Importation of 250 Kilograms of Cocaine
Torres, the cooperating defendant, testified about a
successful shipment of 250 kilograms of cocaine that occurred on
July 16, 1997. Torres was the coordinator for this shipment, and
oversaw security and the distribution of the cocaine. Chevere was
responsible for security when the cocaine load was delivered: he
had weapons at the delivery site and made sure that the people
delivering the drugs would not attempt to take the drugs back after
they received payment. After the shipment was delivered, Torres
and Rivera went to a nearby repair shop and divided the cocaine
between them. Rivera received approximately 50 kilograms, for
which he promised to pay Torres a discounted price amounting to
over $600,000; Torres kept the remaining 200 kilograms. Rivera
arranged for most of his cocaine to be sent to Figueroa, Caribe's
brother-in-law in New York, because the price of cocaine was higher
in New York. Figueroa sold the cocaine and sent some of the
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proceeds back to Rivera. Chevere, Caribe, and Nelson each had a
role in distributing Rivera's share.
3. Attempted Importation of 36 Kilograms of Cocaine
In the summer of 1997, Torres also became involved in the
conspiracy's planned importation of 36 kilograms of cocaine.
Torres testified that Rivera introduced him to Nelson. Rivera and
Nelson had arranged for a 36 kilogram load of cocaine to be sent
from Venezuela to Puerto Rico on a boat. Nelson's nephew, Luis
Diaz, tied the load to the bottom of a boat that was going to
Puerto Rico. While the boat was en route, the load was lost. The
Colombians who had supplied the cocaine kidnapped Luis Diaz and
threatened to kill him unless they were paid for the shipment.
Torres, Rivera, and Nelson discussed ways to gain his release, but
he eventually escaped on his own.
4. Planned Importation of Eight Kilograms of Heroin
On October 12, 1997, Caribe sent the CIS, Hernandez and
Diaz, to St. Maarten to arrange for a shipment of eight kilograms
of heroin into Puerto Rico. Hernandez and Diaz were responsible
for transporting the heroin to Puerto Rico. They met with a man
named Francisco and agreed that Rivera's organization would keep
three kilograms of heroin, while the remaining five kilograms would
either be sold or distributed by Rivera with the proceeds going
back to Francisco's organization.
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5. Planned Importation of 700 Kilograms of Cocaine
In July 1997, CI Diaz went to Colombia to arrange for the
importation of more cocaine into Puerto Rico. Diaz testified that
the Colombians agreed that Hernandez and Diaz's organization could
import 700 kilograms of cocaine into Puerto Rico and, if that
shipment went well, they would be able to import larger shipments
in the future. On August 16, 1997, Diaz met with Rivera and Caribe
to discuss importing the 700 kilograms. During this meeting,
Rivera and Caribe promised to show Diaz that they had the
equipment, security, and other prerequisites to handle the
importation of large quantities of cocaine. Rivera also gave Diaz
a gun to give to Hernandez; Rivera said the gun was "clean" and
could be used.
On October 29, 1997, Diaz met with Rivera and Bonet.
They looked at the nautical charts showing where the drugs would be
brought into Puerto Rico, and Bonet showed Diaz the radio that
would be used during the operation. The next day, October 30,
Diaz, Rivera, Caribe, Figueroa, and Bonet met again. Bonet and
Caribe conducted a test of a radio that would be used in the
shipment. The FBI was able to record Bonet's voice during this
test.
Diaz testified that he and Bonet conversed during their
car trips to and from these meetings. Bonet assured Diaz that his
team "had been in drug trafficking for many years" and "had the
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necessary equipment, including the boats, communication, security
at the beach and the captains." Bonet also said that he had been
sought by the FBI in the Al Capone case, but the FBI was unable to
identify him because it did not know his full name. He said that
someone named Frank Jones had become a "snitch" and that "they were
going to kill him." "Frank Jones" was Hernandez's previous alias
from his time as a drug trafficker.
On November 1, 1997, Diaz, Rivera, and Bonet met a third
time. Caribe introduced Diaz to Ortiz, the boat captain for the
shipment. Caribe told Ortiz that he would make sure that Ortiz had
a working motor for his boat by the shipment date. The group made
plans to meet at a future date to view the site selected for
delivery of the load. There is no evidence that this meeting or
the shipment ever took place, possibly because several defendants
were arrested during early November.
D. Convictions and Sentences
Romero pled guilty and was sentenced to 135 months of
imprisonment and 5 years of supervised release. Juries found the
other eight defendants guilty as charged. They received varying
sentences, as follows:
Rivera: Life imprisonment and 5 years supervised release;
Chevere: 540 months imprisonment and 10 years supervised
release;
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Caribe: 420 months imprisonment and 8 years supervised
release;
Valle: 360 months imprisonment and 10 years supervised
release;
Bonet: 360 months imprisonment and 20 years supervised
release;
Arroyo: 324 months imprisonment and 20 years supervised
release;
Nelson: 293 months imprisonment and 10 years supervised
release;
Rodriguez: 151 months imprisonment and 15 years
supervised release.
II.
On appeal, not all defendants raise every claim. The
defendants who make each claim are identified in the section
heading.
A. Sufficiency of the Evidence (Caribe, Rodriguez, Arroyo)
Caribe, Rodriguez and Arroyo argue that the evidence was
insufficient to establish a conspiracy, or to link each of them to
it individually. The guilty verdicts stand unless, viewing the
evidence in the light most favorable to the prosecution, no
reasonable jury could have rendered them. See United States v.
Spinney, 65 F.3d 231, 234 (1st Cir. 1995). That burden is not met
here.
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There are three basic components to a drug conspiracy:
"[T]he existence of a conspiracy, the defendant's knowledge of the
conspiracy, and the defendant's voluntary participation in the
conspiracy." United States v. Gomez-Pabon, 911 F.2d 847, 852 (1st
Cir. 1990). "Mere association" with the conspirators or "mere
presence" during activities of the conspiracy will not, standing
alone, be sufficient for conviction. Id. at 853. The statute
under which these defendants were convicted, 21 U.S.C. § 846,
requires no overt act in furtherance of the conspiracy. United
States v. Shabani, 513 U.S. 10, 15 (1994). A conspiratorial
agreement may be inferred from circumstantial evidence. See United
States v. Aponte-Suarez, 905 F.2d 483, 490 (1st Cir. 1990).
Caribe and Arroyo both argue that the existence of a
conspiracy was not proven, because many of the drug importation
plans never came to fruition. A conspiracy need not succeed for a
conspiracy conviction to stand. Indeed, the underlying act need
not even be attempted. See United States v. Martin, 228 F.3d 1, 11
(1st Cir. 2000). "The gist of a conspiracy is an agreement to
disobey or to disregard the law." United States v. Palmer, 203
F.3d 55, 63 (1st Cir. 2000). They also argue that various
negotiations failed to produce a complete "meeting of the minds" on
issues such as the exact location for the handover of the drugs at
sea or the division of the proceeds. But there was a vast amount
of evidence presented, including testimony from informants and
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numerous audiotapes, from which a reasonable jury could easily
determine that an agreement existed among Rivera and his associates
to work together to buy and sell illegal narcotics.
Each of the three defendants also argues that even if
there were a conspiracy, the evidence was insufficient that he knew
of it and participated in it voluntarily. A reasonable jury most
certainly could disagree.
There was evidence of Caribe's knowing involvement in the
conspiracy's plans to import illegal drugs. For example, CI Diaz
testified that he met with Caribe and Rivera on August 16, 1997 to
make specific plans in connection with the importation of between
700 and 1,000 kilograms of cocaine. Diaz also testified about
attending a meeting at Caribe's house on October 29, 1997. Caribe
and others discussed drug smuggling plans, tested radios, and
reviewed nautical charts. CI Hernandez testified that he had
participated in a test of radio equipment with Caribe (as well as
Rivera and Bonet) and that Rivera had told him that Caribe would
supervise security at the dropoff point on the shore for a planned
importation.
The evidence as to Rodriguez was that he knowingly
transported Rivera's cocaine from Puerto Rico to New York, where it
was sold to Figueroa, Caribe's brother-in-law. Rodriguez
emphasizes that none of the CIS ever met him directly. But several
intercepted telephone conversations, including two July 21, 1997
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calls made by Rivera, supported his guilt, directly and indirectly.
In one, Rivera told Figueroa that Rodriguez would be meeting with
him in New York to deliver "shirts" (code for cocaine, according to
an FBI agent who testified). In another, Rivera called Rodriguez,
then in New York, to coordinate Rodriguez's meeting with Figueroa
and to discuss the price for the cocaine. A search of Rodriguez's
apartment in Puerto Rico after his arrest found corroborating
evidence such as airplane tickets to New York for the relevant time
period and his cell phone bills.
Finally, Arroyo, who was replaced early in the
conspiracy, argues that the government proved only mere presence or
association. There is no further indication of his participation
after his demand for one million dollars was rebuffed.
Nonetheless, before that time, Arroyo's involvement in the
conspiracy's plans was extensive. He joined Rivera at the initial
April 25 meeting with Hernandez at the Condado Hotel. He also
brought the nautical charts to the May 3 meeting, which the FBI
videotaped; Arroyo looked over the charts with Agent Rosa,
supposedly the captain of Hernandez's boats, to fix a location for
their rendezvous.
Arroyo relies on Aponte-Suarez, 905 F.2d at 491, where
this court vacated a drug conspiracy conviction for insufficient
evidence. The defendant there demanded money from drug traffickers
for the use of his land as an airstrip; when they refused, he
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introduced them to a neighbor and had no further involvement with
the conspiracy. Id. Arroyo, in contrast, was an active
participant up until the time his financial demands were refused.
For similar reasons, Arroyo's alternate argument that he withdrew
from the conspiracy is a non-starter. "[W]ithdrawal is not a
defense to a conspiracy charge if the conspiracy violation has
already occurred." United States v. Rogers, 102 F.3d 641, 644 (1st
Cir. 1996).
The evidence about the existence of a conspiracy, and the
knowing and voluntary involvement of Caribe, Rodriguez, and Arroyo,
was clearly sufficient for the jury to reach a guilty verdict.
B. Pre-Trial Claims
1. Prosecutorial Misconduct (Bonet)
Bonet argues that his conviction should be vacated
because of prosecutorial misconduct before the grand jury. Bonet
asserts that Agent Plichta was the only witness who testified
against him before the grand jury and that Plichta made two false
statements. Plichta stated that the search of Bonet's house
revealed a 20/40 radio and an antenna set up on a tree outside the
house. At trial, Agent Juan Grajales, one of the agents who
conducted the search, testified that the FBI in fact seized a CB
radio and an antenna, which they found in the dining room. Agent
Plichta admitted at trial that he had been mistaken. Bonet claims
that no other evidence against him was presented to the grand jury
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and that the prosecutor encouraged Plichta to testify falsely to
bolster the case.
The Supreme Court in United States v. Mechanik, 475 U.S.
66 (1986), rejected the defendant's claim that his conviction
should be vacated because the prosecutor allegedly violated Fed. R.
Crim. P. 6(d) by permitting two law enforcement agents to be
questioned together before the grand jury. The Court held that any
error was harmless because the defendant was subsequently
convicted. In such cases, "the petit jury's subsequent guilty
verdict means not only that there was probable cause to believe
that the defendants were guilty as charged, but also that they are
in fact guilty as charged beyond a reasonable doubt." Id. at 70.
Two years later, in Bank of Nova Scotia v. United States,
487 U.S. 250 (1988), the Court carved out a narrow exception to the
Mechanik rule. This exception applies only if "the structural
protections of the grand jury have been so compromised as to render
the proceedings fundamentally unfair, allowing the presumption of
prejudice." Id. at 256-57; see also United States v. De Jesus, 230
F.3d 1, 4 (1st Cir. 2000) ("Thus, dismissal after conviction is
appropriate only in cases of serious and blatant prosecutorial
misconduct -- misconduct so grave that it calls into doubt the
fundamental fairness of the judicial process.") (internal
quotations omitted). The Supreme Court noted that this exception
was consistent with past cases in which the Court had dismissed
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indictments after convictions because it found racial or gender
discrimination in the selection of the grand jury. Bank of N.S.,
487 U.S. at 256-57 (citing Vasquez v. Hillery, 474 U.S. 254 (1986),
and Ballard v. United States, 329 U.S. 187 (1946)). However, we
have cautioned that this exception should be "invoked infrequently,
largely as a prophylactic tool to discourage further misconduct of
a like nature." United States v. Giorgi, 840 F.2d 1022, 1030 (1st
Cir. 1988).
Bonet faces an additional hurdle: he did not raise his
claim before the district court, and so review is only for plain
error. A party claiming plain error must demonstrate (1) that
there was error, (2) that it was plain, (3) that it affected the
defendant's substantial rights, usually by altering the outcome,
and (4) that it was sufficiently fundamental to threaten the
"fairness, integrity or public reputation of judicial proceedings."
United States v. Olano, 507 U.S. 725, 732-36 (1993).
The record does not establish prosecutorial misconduct,
much less misconduct so egregious that it rendered the grand jury
proceedings fundamentally unfair. At most there was an
understandable mistake in testimony. The FBI agents involved in
the case had been tracking the defendants for several months and
had gathered innumerable facts about the organization. CI Diaz
testified at trial that he was present when Bonet tested a 20/40
radio at his house that would be used in the planned importation of
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700 kilograms of cocaine. Bonet also showed him the antenna that
he had placed on a tree outside his house. The most likely
explanation for Agent Plichta's misstatements is that he simply
confused the radio and antenna seen by Diaz with those seized by
the FBI. Given the corroborating evidence for the substance of
Plichta's account, if not the exact details, his grand jury
testimony did not affect the defendant's substantial rights or
seriously impair the fairness, integrity, or public reputation of
the judicial proceedings.
2. Bill of Particulars (Nelson)
Nelson argues that the district court abused its
discretion by denying his motion for a bill of particulars. There
was no abuse of discretion.
The indictment names Nelson twice. First, it charges
Nelson with initial involvement in the planned importation of
10,000 pounds of marijuana. Second, it charges that Rivera
instructed Luis Diaz, Nelson's nephew, to go to Colombia to arrange
for the importation of cocaine into Puerto Rico, and that Rivera
and Nelson made efforts to obtain Luis Diaz's release after he was
kidnapped by Colombian drug suppliers.
Nelson argues that he was not put on notice of the
government's evidence at trial concerning his involvement in the
attempted importation of 36 kilograms of cocaine that was lost at
sea. The Colombians kidnapped Luis Diaz to ensure that Nelson
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would pay them for this lost cocaine. Nelson argues that the
indictment does not refer to cocaine in this context and states
only that he tried to gain his nephew's release, which is not a
criminal act.
The indictment stated that the conspiracy involved
attempts "[t]o import large amounts of controlled substances into
the District of Puerto Rico," and detailed the dates of the
conspiracy and the names of the coconspirators. The indictment
specifically charged the defendants with conspiracy with intent to
distribute over 1,000 kilograms of cocaine. Additionally, Nelson
had access during discovery to recordings of conversations between
him and other conspirators discussing the importation of cocaine.
Nelson did not lack a fair opportunity to prepare a defense absent
a bill of particulars. See United States v. Sepulveda, 15 F.3d
1161, 1192-93 (1st Cir. 1993). United States v. Paiva, 892 F.2d
148 (1st Cir. 1989), held that the district court did not abuse its
discretion in denying the motion for a bill of particulars even
though the indictment did not inform the defendant of a number of
transactions he allegedly aided. Id. at 154. The court there held
that the indictment referred to "quantities of cocaine" and thus
informed the defendant that the charge involved more than one
transaction. See id. at 155.
Nelson does not explain how the indictment's lack of
specificity prejudiced him at trial. A defendant must show "actual
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prejudice" and point to "specific evidence or witnesses that the
lack of particularization prevented him from obtaining." United
States v. Arboleda, 929 F.2d 858, 869 (1st Cir. 1991); see also
Sepulveda, 15 F.3d at 1193 ("Neither appellant convincingly relates
a concrete instance of inability to prepare, untenable surprise, or
other cognizable prejudice stemming from the trial court's refusal
to mandate further particulars."). Nelson does not argue that he
was unable to prepare a defense to the allegations, nor does he
point to any evidence that he would have presented. We reject the
claim.
3. Duplicitous Indictment (Nelson, Chevere)
Nelson and Chevere argue that the indictment was
duplicitous because it charged the defendants with possessing
several drugs (cocaine, heroin, and marijuana) with intent to
distribute. Neither defendant raised this claim prior to trial;
the review is for plain error. There was no error, much less plain
error, on this point. It has been clear since the Supreme Court's
decision in Braverman v. United States, 317 U.S. 49 (1942), that
"[t]he allegation in a single count of a conspiracy to commit
several crimes is not duplicitous, for the conspiracy is the crime,
and that is one, however diverse its objects." Id. at 54. The
conspiracy charged here included the planned importations of
cocaine, heroin, and marijuana. Each of these acts was part of a
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single conspiracy, and the jury instructions made clear that the
jury must find as much.
Nelson also argues that the indictment was duplicitous
because it charged two crimes, possession of drugs with intent to
distribute and conspiracy to possess drugs with intent to
distribute, in a single count of the indictment. This claim is
rebutted by the plain language of the indictment, which states only
that the defendants conspired to possess controlled substances with
intent to distribute. The indictment does not charge the
defendants with possession with intent to distribute, and the jury
did not consider any such charge.
C. Wiretap Evidence (Nelson, Rodriguez, Bonet, Chevere, Caribe,
Rivera, and Valle)
Defendants argue that evidence obtained from wiretaps
should have been suppressed.2 They also argue that the district
court erred in refusing to hold a hearing in accordance with Franks
v. Delaware, 438 U.S. 154 (1978), before it denied the motion to
suppress the wiretap evidence. Although in other circumstances the
failure of the government's affidavit supporting its warrant
application to disclose information about the background of a CI
2
This issue was the focus of Nelson's original motion for a
new trial, timely filed on November 1, 1999. Because the question
is thus properly before us and we answer it fully, we need not
consider whether some of the other defendants may have waived the
issue.
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could well lead to suppression, we ultimately find neither argument
by defendants in this case to be meritorious.
1. Suppression
Congress has placed statutory requirements on warrants
authorizing wiretaps, extending beyond the constitutional minimum
mandated for other search warrants. See Omnibus Crime Control and
Safe Streets Act of 1968, Title III, 18 U.S.C. §§ 2510-2522 (2000).
See generally United States v. Lopez, 300 F.3d 46, 51-52 (1st Cir.
2002) (providing overview of Title III's provisions). Law
enforcement authorities seeking a wiretap warrant must submit a
sworn affidavit which includes "a full and complete statement of
the facts and circumstances" that demonstrate probable cause and a
"full and complete statement as to whether or not other
investigative procedures have been tried and failed or why they
reasonably appear to be unlikely to succeed if tried or to be too
dangerous." 18 U.S.C. § 2518(1). A judge considers this affidavit
under the standards of Title III before issuing an order
authorizing the wiretap. These restrictions are intended to ensure
that authorities "make a reasonable, good faith effort to run the
gamut of normal investigative procedure before resorting to means
so intrusive as electronic interception of telephone calls" and
that wiretapping as a law enforcement technique remains "distinctly
the exception -- not the rule." United States v. Hoffman, 832 F.2d
1299, 1306-07 (1st Cir. 1987).
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The issuing judge's initial decision to grant a wiretap
order is subject to review in at least two different contexts.
First, the trial judge may consider a motion to suppress the
evidence gathered by the wiretap that the issuing judge authorized;
later, an appellate court may review the trial judge's suppression
ruling. See United States v. Ashley, 876 F.2d 1069, 1074 (1st Cir.
1989). Both of these later reviewing courts use the same metric to
evaluate the action of the issuing judge, which is to examine the
face of the affidavit and "decide if the facts set forth in the
application were minimally adequate to support the determination
that was made." Id. (quoting United States v. Scibelli, 549 F.2d
222, 226 (1st Cir. 1977)).
Agent Plichta submitted an affidavit in support of the
application on June 24, 1997. The government sought permission to
tap a cellular telephone which CI Hernandez had sold to Rivera (on
the pretense that it was a cloned phone that allowed unlimited
calling). After discussing Plichta's experience and training, the
affidavit chronicled in detail the investigation up to that point,
beginning with the first contact between Hernandez and Rivera on
April 25, 1997. The affidavit revealed information obtained from
Hernandez's audio recordings of his conversations with defendants
in both telephone calls and face-to-face meetings; the May 3
meeting that was attended by Rosa, the undercover agent, and was
secretly videotaped; visual surveillance; court-authorized pen
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registers; and searches of toll records of several telephone
numbers used by Rivera.
While the incriminating information gathered by these
methods and reported in the affidavit was substantial, the
affidavit stated that these methods were unlikely to uncover the
full scope of the conspiracy, even if augmented by other possible
techniques such as executing search warrants or issuing grand jury
subpoenas. Each technique displayed just a small piece of the
puzzle. Meanwhile, the conspirators made careful efforts to evade
detection, such as switching telephones and vehicles and using
counter-surveillance. Finally, searches or grand jury subpoenas
would alert the conspirators that they were under investigation.
The defendants mainly argue that the affidavit downplayed
both (a) the availability and promise of alternate investigative
techniques and (b) the potential unreliability of Hernandez as a
source. We consider these claims in turn.
a. Necessity of Wiretap
Defendants argue that progress made in the investigation
using other methods meant that wiretapping was unnecessary. Title
III requires that the affidavit show why wiretapping is necessary
in place of less intrusive investigative techniques. 18 U.S.C. §
2518(1)(c). But it does not impose an exhaustion requirement.
Lopez, 300 F.3d at 52. "Accordingly, the government is not
required to show that other methods have been wholly unsuccessful."
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Ashley, 876 F.2d at 1072. Rather, "Title III demands a practical,
commonsense approach to exploration of investigatory avenues and
relative intrusiveness." United States v. Uribe, 890 F.2d 554, 556
(1st Cir. 1989).
An eight-page section of the affidavit explained quite
specifically why the investigative techniques then in use, alone or
combined with others that had not been employed, would likely fail
to uncover the full extent of the conspiracy. The affidavit's
discussion of alternate methods does not fall below the standard of
minimal adequacy. See United States v. Rivera-Rosario, 300 F.3d 1,
19 (1st Cir. 2002); Uribe, 890 F.2d at 556-57; Ashley, 876 F.2d at
1074-75.
Nelson also argues that the number of person-hours
dedicated to the investigation at the time of the warrant -- he
estimates forty-one hours -- was per se too short to demonstrate
the necessity of a wiretap. There is no rule on the amount of time
investigators must try and fail, using other methods, before
turning to a wiretap application. See United States v. David, 940
F.2d 722, 729 (1st Cir. 1991). The issuing judge here had the
relevant information and was able to weigh the amount of prior
investigation among other relevant factors in reaching a decision
on the necessity of the wiretap.
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b. Omission of Information About Hernandez's Background
The defendants also argue that the affidavit relied on
information from CI Hernandez, but failed to disclose his prior
drug trafficking conviction, his past involvement with some
defendants, and other indicia of his possible unreliability. The
affidavit was, to put it mildly, economical on this point, stating
only that there was no indication that Hernandez "has been less
than truthful at any time with regard to this investigation." This
statement was crafted carefully to avoid mention of facts that
would call Hernandez's trustworthiness into serious question. We
are concerned that such significant omissions could thwart the
intent of Title III and mislead an issuing judge, who relies on the
government to present the full case for its belief in probable
cause, including any contraindications.3
The troubling omissions here have less significance
because the affidavit also included large quantities of evidence
from sources other than Hernandez. Reliance on Hernandez's
credibility was therefore unlikely to have been important to the
issuing judge's decision. We use the technique described in United
States v. Young, 877 F.2d 1099 (1st Cir. 1989) (Breyer, J.), and
reach the same result as in that case. "That is to say, if we
3
At oral argument it was suggested that the government may
have provided further information about Hernandez to the issuing
judge orally. Even were this so, our review is limited to the four
corners of the affidavit. See Ashley, 876 F.2d at 1074.
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excise (or otherwise appropriately adjust) all misleading
statements from the affidavit, there is still a more than adequate
showing of 'probable cause.' Thus any misstatements are
immaterial." Id. at 1102 (citations omitted). Even without
reliance on Hernandez, the affidavit provided the issuing judge
substantial basis for probable cause. There were over a dozen
recorded conversations, the interactions with undercover agent
Rosa, and the videotape of the May 3 meeting. On these facts, the
omission of information about Hernandez's background was not a
basis for suppression.
Other objections to scattered statements in the
affidavit, even if they had any merit in isolation, would similarly
fail because of the large quantity of evidence on which the issuing
judge could rely.
2. Franks Evidentiary Hearing
Some defendants also argue that the case should at least
be remanded for an evidentiary hearing about the alleged flaws in
the affidavit. A defendant seeking such a hearing must make a
"substantial preliminary showing" that the affidavit included a
false statement which was made either knowingly and intentionally
or with reckless disregard for the truth, and that this
misstatement was necessary to the finding of probable cause.
Franks, 438 U.S. at 155-56, 171-72; see United States v. Adams, 305
F.3d 30, 36 n.1 (1st Cir. 2002) (preliminary showing for Franks
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hearing requires both of these elements). A material omission in
the affidavit may also qualify for a Franks hearing in place of a
false direct statement, provided the same requisite showing is
made. United States v. Scalia, 993 F.2d 984, 987 (1st Cir. 1993).
We review the district court's denial of a Franks hearing for
"clear error." United States v. Ranney, 298 F.3d 74, 77 (1st Cir.
2002). The ruling above disposes of this argument because the
defendants fail to make the second required showing -- Hernandez's
necessity to a finding of probable cause.
D. Other Evidentiary Rulings
1. Exclusion of Impeachment Evidence Against Hernandez
Caribe and Rivera)
Caribe and Rivera argue that the court erroneously
excluded evidence that CI Hernandez had a role in the October 30,
1992 killings of five alleged drug traffickers known as the "Mickey
Motors murders." Three people were convicted for these murders.
Hernandez, who acknowledged to the government that he was present
during the killings, was not prosecuted. The judge excluded the
evidence as collateral under Fed. R. Evid. 403.
Where, as here, the objection was not properly preserved,
we review a district court's decision to admit or exclude evidence
for plain error. United States v. Scott, 270 F.3d 30, 46 (1st Cir.
2001). The term "collateral," for Rule 403 purposes, refers to
evidence that is likely to confuse the issues, mislead the jury, or
waste time. See 1 C.B. Mueller & L.C. Kirkpatrick, Federal
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Evidence § 95, at 512 (2d ed. 1994). The trial court has wide
discretion in determining admissibility under Rule 403, United
States v. Abel, 469 U.S. 45, 54-55 (1984), since the trial judge
"is more directly familiar than a court of appeals with the need
for the evidence and its likely effect." United States v. Lau, 828
F.2d 871, 874 (1st Cir. 1987); see also United States v. Cintolo,
818 F.2d 980, 998 (1st Cir. 1987) (trial judge "has a front row
seat which gives him a unique vantage point").
The district judge did not abuse his discretion by
excluding the impeachment testimony, which would have had little
probative value. The murders, which occurred in 1992, were
unrelated to the drug conspiracy here, which covered events in
1997. The government was prepared to offer testimony from multiple
witnesses that Hernandez was not the killer. Further, the jury
already knew that Hernandez had a history of serious criminal
behavior; indeed, Hernandez himself admitted that he had been a
drug dealer. Moreover, testimony by several witnesses about
Hernandez's role in the murders might have confused the jury as to
the issue before it.
Caribe raises two related issues. First, he argues that
the trial judge violated the Confrontation Clause by denying him
the right to cross-examine Hernandez with respect to his criminal
past. Second, he argues that the government failed to produce and
concealed reports of debriefings from prior investigations which
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contained allegations that Hernandez was involved in drug dealing
and the Mickey Motors murders.4 According to Caribe, this failure
to produce violated Brady v. Maryland, 373 U.S. 83 (1963), Roviero
v. United States, 353 U.S. 53 (1957), Giglio v. United States, 405
U.S. 150 (1972), and the Jencks Act, 18 U.S.C. § 3500. None of
these separate doctrines provides grounds for relief unless the
exclusion or failure to produce prejudiced Caribe's defense. See
United States v. Noone, 913 F.2d 20, 32 (1st Cir. 1990) (alleged
Confrontation Clause violation); Brady, 373 U.S. at 87 (suppressed
evidence must be material); United States v. Bagley, 473 U.S. 667,
682 (1985) (evidence is material for Brady purposes if there is a
"reasonable probability that, had the evidence been disclosed to
the defense, the result of the proceeding would have been
different"); Giglio, 405 U.S. at 154 (requiring the same finding of
materiality of the evidence as Brady); Roviero, 353 U.S. at 64-65;
United States v. Rosario-Peralta, 175 F.3d 48, 53 (1st Cir. 1999)
(Jencks Act). Since Hernandez's alleged role in the Mickey Motors
murders was a collateral matter, and the defense showed at trial
that Hernandez had an extensive criminal past, Caribe has failed to
show any form of prejudice, and that disposes of his claims.
4
Caribe also argues that the reports contained relevant
information on Caribe's "drug quantity [and] role in the offense."
We deal separately with these other issues.
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2. Exclusion of Alibi Evidence (Bonet)
Bonet argues that the district judge erred in excluding
his alibi evidence for October 29, 1997 and October 30, 1997. The
district court found Bonet provided the requisite notice of alibi
too late in the trial process. Bonet adequately preserved his
objection.
Defense counsel was obliged by Fed. R. Crim. P. 12.1(a)
to give the government notice of an intent to offer an alibi
defense within ten days of the government's written demand for such
notice. There is a continuing duty to disclose if defense counsel
learns of additional alibi witnesses prior to or during the trial.
Id. at 12.1(c). If a party does not comply, then the testimony of
its alibi (or rebuttal) witnesses may be excluded. Id. at 12.1(e).
In its discretion, the court may grant an exception for good cause
to any of the above requirements. Id. at 12.1(d).5
Taylor v. Illinois, 484 U.S. 400 (1988), guides this
court's application of Rule 12.1(d). See United States v.
Portella, 167 F.3d 687, 705 (1st Cir. 1999) (holding that Taylor
standard is used to review preclusion of an alibi defense). Taylor
requires the court to balance the defendant's right under the Sixth
5
A new version of Rule 12.1 took effect on December 1, 2002.
This new version changes the organization of the rule's different
provisions, but does not change the analysis here. We cite to the
new version.
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Amendment to offer the testimony of witnesses in his favor against
"countervailing public interests":
The integrity of the adversary process, which depends
both on the presentation of reliable evidence and the
rejection of unreliable evidence, the interest in the
fair and efficient administration of justice, and the
potential prejudice to the truth-determining function of
the trial process . . . .
484 U.S. at 414-15. "The judge should also factor into the mix the
nature of the explanation given for the party's failure reasonably
to abide by the discovery request, the willfulness vel non of the
violation, the relative simplicity of compliance, and whether or
not some unfair tactical advantage has been sought." Chappee v.
Vose, 843 F.2d 25, 29 (1st Cir. 1988). We review application of
the Taylor factors de novo. United States v. Levy-Cordero, 67 F.3d
1002, 1013 (1st Cir. 1995).
Bonet concedes that the government filed a request for
alibi notice and served it on Bonet's counsel in February 1998.
Bonet waited approximately one-and-a-half years before filing his
alibi notice, near the end of the first trial, on September 22,
1999. Applying Taylor, the court denied Bonet's request as
untimely.
Bonet argues that he was unaware he might need an alibi
for October 29 and October 30, 1997 until CI Diaz testified for the
prosecution that he met with Bonet on these dates; the defense
contends that before Diaz took the stand on September 14, 1999,
"the government never mentioned these two dates."
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The government's request for alibi notice referred to
the times the alleged offenses were committed as stated in the
grand jury indictment, which alleged that Bonet (and
coconspirators) committed two overt acts in furtherance of the
conspiracy "[o]n or about October 30, 1997." The "on or about"
language provides adequate notice for both October 29 and October
30. See United States v. Leibowitz, 857 F.2d 373, 379 (7th Cir.
1988) (where the indictment alleged that an offense took place "on
or about" a certain date, the defendant is deemed to be on notice,
for purpose of alibi defense, that the charge is not limited to a
specific date).
Moreover, it is far from clear that there was any
prejudice. Even if the indictment had provided adequate notice
only for October 30, an alibi witness for October 29 alone would
have been of little help to Bonet and might well have hurt his
cause. The meetings on October 29 and October 30 covered the same
ground: the participants reviewed how they would import 700
kilograms of cocaine into Puerto Rico. On October 30, the FBI
recorded Bonet's voice as he tested the audio equipment. On the
tape, Bonet brags about his drug-dealing exploits.
Bonet resorts to the good cause prong of the rule,
arguing his delay in filing the alibi notice was not motivated by
a desire to gain a tactical advantage. He also complains the
district judge's terse statement of his decision was more akin to
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a finding of fact than the requisite finding of law. See Levy-
Cordero, 67 F.3d at 1013 (whether to exclude alibi evidence is a
question of law). Since our review is de novo, the last complaint
is irrelevant. This court has never restricted the application of
the sanction of exclusion to discovery violations that are willful
or intended to gain a tactical advantage. Portella, 167 F.3d at705 n.16; Chappee, 843 F.2d at 29. The exclusion of the evidence
was not in error.
3. Admission of Hearsay Statements by Arduandua (Rivera)
Rivera argues error in the admission of CI Hernandez's
hearsay testimony that Arduandua, the Colombian who had been
incarcerated with Hernandez, said that Rivera was involved in the
drug trade.6 There was no objection. Review is for plain error,
and there was none. The admitted statement is reasonably
understood as being offered, not to prove the truth of the matter
asserted, but to explain why Hernandez contacted Rivera at the
beginning of the investigation.
4. Admission of Evidence About Cruz Murder (Rivera)
Rivera argues error under Rule 403 in the admission of
CI Hernandez's testimony about Rivera's role in the killing of
6
Rivera's brief also contends that the court erred by
admitting Hernandez's testimony that a person loosely associated
with Rivera was responsible for a break-in at Hernandez's house.
As the government correctly observes in its brief, Rivera's
objection that Hernandez lacked personal knowledge of that person's
involvement was sustained, and that portion of Hernandez's
testimony was excluded.
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Roberto Cruz, a murder alleged to have been committed in
furtherance of the conspiracy.7
The district court did not abuse its discretion in
finding that the testimony was probative. It confirmed Rivera's
role in the conspiracy and tended to show that the 250-kilogram
shipment had in fact been delivered. Rivera allegedly committed
the murder in concert with a coconspirator and in furtherance of
the conspiracy. Hernandez testified that Rivera and a subordinate
killed Cruz "because of the kilos . . . [;] [Rivera] had not
allowed [Cruz] to participate and [Cruz] had been stalking him."
Cf. United States v. David, 940 F.2d 722, 731-33, 737 (1st Cir.
1991) (no abuse of discretion in admitting evidence against alleged
ringleader of conspiracy concerning beating of drug courier
suspected of stealing shipment).
Rivera also argues that the government violated discovery
rules by disclosing an FBI Form 302 Report of Hernandez's
debriefing "only days before the testimony was to be introduced."
At trial, defense counsel objected to the admission of testimony by
Hernandez covering topics addressed in the 302 report, including
Rivera's claim of responsibility for the Cruz murder, on the
7
Rivera's complaint about the reliability of the evidence is
belied by the facts of record. Rivera stated in taped
conversations that he had killed the person in the photograph on
page three of the August 11, 1997 edition of El Vocero, a newspaper
in Puerto Rico. That page does indeed contain a photograph of a
corpse later identified as Cruz.
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grounds that the government's failure to disclose this document at
an earlier date violated the Jencks Act, 18 U.S.C. § 3500. This
argument fails. The Jencks Act provides that the government does
not need to disclose the statement or report of a government
witness "until said witness has testified on direct examination in
the trial of the case." Id. § 3500(a).
E. Closing Argument and Jury Instructions
1. Objection to Prosecutor's Closing Argument (Nelson)
Nelson argued both at his trial and to us that a
statement made by the prosecutor in closing argument, described
below, was improper and prejudicial.
We review de novo whether the challenged statement was
improper, and for abuse of discretion whether the misconduct, if
any, warrants a new trial. United States v. Hernandez, 218 F.3d
58, 68 (1st Cir. 2000). The standard for determining whether a new
trial is warranted is:
An improper argument to the jury that does not implicate
a defendant's constitutional rights . . . constitutes
reversible error only where the prosecutor's remarks were
both inappropriate and harmful. Improper statements
during closing argument are considered harmful if, given
the totality of the circumstances, they are likely to
have affected the trial's outcome. In making that
determination, we focus on (1) the severity of the
prosecutor's misconduct, including whether it was
deliberate or accidental; (2) the context in which the
misconduct occurred; (3) whether the judge gave curative
instructions and the likely effect of such instructions;
and (4) the strength of the evidence against the
defendants.
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United States v. Wihbey, 75 F.3d 761, 771-72 (1st Cir. 1996)
(footnote and citations omitted). A prosecutor's comments do not
rise to the level of a constitutional violation unless they "so
infected the trial with unfairness as to make the resulting
conviction a denial of due process." Darden v. Wainwright, 477
U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S.
637 (1974)); see 5 W.R. LaFave et al., Criminal Procedure
§ 24.7(h), at 562 (2d ed. 1984). The challenged statement does not
implicate constitutional rights.
At the first trial, where Nelson was convicted, the
prosecutor concluded a summary of the evidence against Caribe by
remarking of him and two of the other defendants, "Caribe, Bonet
and [Ortiz] got away, they got away from us . . . [b]ack in 1993."
She next recalled Bonet's statement to Rivera and CI Diaz while
they were on the way to an October 30, 1997 meeting in Bonet's
home; Bonet said that the FBI was "a bunch of suckers" who had
failed to arrest him for his role in the earlier Al Capone drug
trafficking case. The prosecutor then said:
I request very respectfully from you that they [sic] do
not let them and the other defendants in this case get
away with it again. Let us make sure that not one, not
one kilogram of cocaine more is imported into Puerto Rico
by these seven defendants. Let us make sure of that.
Nelson challenges the "let them and the other defendants
in this case get away with it again." He argues there was no
evidence of prior crimes on his part and that it was improper to
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raise the specter that he was doing it again. That is not so
clear. There was evidence that Nelson had a role in the botched
importation of the 36 kilograms of cocaine that were lost by his
nephew, Luis Diaz.
The government argues that the trial court overruled the
objection on the basis that the jury would, in context, have
understood the remark to actually refer only to Caribe, Bonet, and
Ortiz, and especially to Bonet's boasting of prior crimes. The use
of "again" could be understood, of course, to refer to hypothetical
past crimes of the other defendants and not be restricted to those
defendants the prosecutor had just named. But, in context, the
stray "again," if the jury thought about it at all, would most
likely link back to those particular defendants. Even if "again"
were understood to refer to all the defendants, we think there was
no harm done and certainly do not think the wayward "again" would
affect the outcome of the trial. See Wihbey, 75 F.3d at 771-72.
As to Nelson's mere generalized argument that the
prosecutor made an emotional appeal to anti-drug dealing sentiment
in Puerto Rico, it too fails. "Closing arguments traditionally
have included appeals to emotion. . . . The outer limit on
emotional appeals is generally stated as a prohibition against
'arguments calculated to inflame the passions or prejudices of the
jury.'" 5 LaFave et al., supra, § 24.7(e), at 558.
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2. Requested Jury Instructions (Arroyo, Nelson)
Arroyo appeals the district court's refusal of his
requested jury instruction that a conspiracy conviction is not
possible if the defendant conspired only with government agents or
informants. This legal point, while true, is inapplicable to the
case against Arroyo. When there are at least two "true"
conspirators, the involvement of a government agent or informant
does not defeat the true conspirators' culpability. See United
States v. Giry, 818 F.2d 120, 126 (1st Cir. 1987). The evidence at
trial showed that Arroyo joined in meetings with not only CI
Hernandez and Agent Rosa, but also Rivera. His unsupported
suggestion that he and Rivera should be counted as each
independently conspiring with the CIS and the undercover agent is
unavailing.
Nelson appeals the district court's refusal to deliver
requested jury instructions concerning proof of the identity of the
defendant as the person who committed the crimes, mere presence,
and his defense theories of necessity and good faith. He properly
preserved these requests for appeal. There was no error.
Nelson requested a separate instruction concerning the
factors to consider when evaluating the identification of a
defendant by a witness. The government incorrectly contends that
potential misidentification was not relevant to Nelson's defense.
To the contrary, his "two Nelsons" theory of mistaken identity
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hinged on it. The proof of Nelson's guilt was at least partly
dependent on Hernandez's connection of Nelson to the voice of the
person with whom he spoke on the telephone and to the person about
whom Rivera and other coconspirators spoke. Defendant Nelson says
he is not the Nelson in those phone calls.8
A district court's refusal to give a requested
instruction is erroneous only if the instruction "was not
substantially covered in the charge actually delivered to the
jury." United States v. Gibson, 726 F.2d 869, 874 (1st Cir. 1984)
(quotation omitted). Here, it was. The district court delivered
a broader charge concerning the credibility of witnesses in general
and the jury's responsibility to consider possible limitations on
the ability of a witness to observe the facts about which he
testified.
Nelson also requested an instruction that "mere presence"
was insufficient for conviction. Similarly, the court explicitly
instructed the jury that mere presence was not sufficient to prove
a conspiracy charge, so Nelson's claim has no merit.
8
Nelson argues that there were "two Nelsons," the defendant
and a Colombian supplier also known as Nelson. He points to a
reference in the FBI affidavit seeking a wiretap warrant, in which
CI Hernandez reported that he had witnessed a telephone call
between Rivera and "Nelson LNU [Last Name Unknown]." "Nelson" is
this defendant's last name, not his first name. In the affidavit,
Rivera and Nelson are said to have discussed Rivera paying Nelson
for the 36 kilograms of cocaine that were lost in transport, as
well as arrangements for a future shipment.
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Nelson's asserted necessity defense9 turns on the
kidnapping of his nephew by the Colombians. Nelson sought
assistance from Rivera and CI Hernandez, hoping they would
intervene with the kidnappers, and Hernandez testified that he
tried to do so. Rivera recommended that Nelson offer to pay the
Colombians back with work on future shipments. In the end,
Nelson's nephew escaped from his kidnappers unharmed. Nelson
argues that his fear for his nephew's safety compelled him to do
the things for which he was convicted.
A defendant must make a showing of a factual predicate
for a necessity defense that is sufficient to raise a question for
the jury. 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).
That predicate is demanding:
To successfully assert the necessity defense, a defendant
must show that he (1) was faced with a choice of evils
and chose the lesser evil, (2) acted to prevent imminent
harm, (3) reasonably anticipated a direct causal
relationship between his acts and the harm to be averted,
and (4) had no legal alternative.
United States v. Sued-Jimenez, 275 F.3d 1, 6 (1st Cir. 2001).
Here, Nelson did not proffer any evidence that he was
forced to join the other defendants' conspiracy because of fear for
9
The traditionally separate defenses of necessity and
duress have become increasingly blurred in modern decisions, to
the point of merger. See United States v. Bailey, 444 U.S. 394,
410 (1980). We will follow the parties' lead and refer to the
defense offered here as "necessity."
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his nephew's safety. There was no evidence that the kidnappers
demanded he do so; they simply wanted their money back. It was
never demonstrated that harm to his nephew was imminent, or that
Nelson had no legal alternatives. Finally, there was evidence that
Nelson's criminal activity continued after his nephew had escaped.
In short, the evidence did not adequately support any of the
required elements for a necessity defense.10
Nelson's separate request for a "good faith" jury
instruction is misplaced, as there is no good faith defense for
participating in a narcotics conspiracy. If the argument was meant
to address the intent required for a conspiracy conviction, the
district court instructed on that point, stating that the
government must prove that a defendant "knew the unlawful purpose
of the agreement and joined in it willfully; that is, with the
intent to further the unlawful purpose." See New Eng. Enters.,
Inc. v. United States, 400 F.2d 58, 71 (1st Cir. 1968) (holding
that a forthright instruction on specific intent is ordinarily a
sufficient response to a defendant's request for a good faith
instruction).
10
We also reject Nelson's argument, advanced pro se, that the
reference to his nephew's kidnapping in the indictment transformed
the necessity defense into an integral part of his charge.
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F. "Supplemental" Motion for a New Trial (Nelson)
Nelson filed a timely motion for a new trial on November
1, 1999. It dealt entirely with objections to alleged flaws in the
wiretap affidavit; these arguments were analyzed earlier in this
opinion. On March 9, 2000, Nelson filed a "supplement" to this
motion for a new trial, which raised a different set of substantive
issues concerning Nelson's theory of mistaken identity. The court
denied Nelson's motions for a new trial on December 15, 2000.
Nelson knew the basis for his "two Nelsons" theory of
mistaken identity before and during trial, and referred to it in a
motion for mistrial during the government's case in chief. The
supplement does not claim to rely on any newly-discovered
information available only after trial. As such, it is time-
barred. See Fed. R. Crim. P. 33(b)(2) (allowing seven days after
verdict for filing motions for new trial based on grounds other
than newly-discovered evidence). Fed. R. Crim. P. 45(b) explicitly
constrains the district court from extending the time period set
out in Rule 33. See United States v. Holt, 170 F.3d 698, 702-03
(7th Cir. 1999); United States v. Hall, 854 F.2d 1269, 1271-72
(11th Cir. 1988). Construing this very late filing (on an entirely
separate issue) as an amendment would violate both the letter and
the spirit of both rules, and create a "back door" for untimely
challenges to verdicts. Holt, 170 F.3d at 703. We refuse to do
so.
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G. Ineffective Assistance of Counsel (Rivera, Caribe and Nelson)
Rivera, Caribe, and Nelson raise issues concerning
alleged conflicts of interest on the part of the attorneys who
represented them at trial. Caribe also makes another claim of
ineffectiveness of counsel unrelated to the alleged conflicts.
Rivera first raised his claim before the district court
in a post-verdict motion for a new trial and made factual
assertions in support of the motion. While Rivera points to a
potential conflict of interest, he failed to carry his burden to
show any actual negative impact on his representation, and the
denial of his motion for new trial was not error.
Unlike Rivera, Caribe and Nelson did not raise their
ineffective assistance arguments in front of the district court at
all, and we will not entertain their fact-dependent but thinly-
supported claims for the first time on direct appeal.
1. Rivera
Rivera, who was convicted at the second trial, says he
became dissatisfied with his appointed counsel and hired Edgar
Vega-Pabon ("Vega") as his attorney a few weeks before his trial
began. Vega also represented Ortiz, who was indicted as a member
of Rivera's conspiracy. Unlike Rivera, Ortiz was tried in the
first trial. The jury there hung as to Ortiz, but the government
pursued a retrial and Vega then negotiated a plea agreement for
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Ortiz. This agreement was completed before Rivera's trial began,
although Ortiz was not sentenced until after Rivera's conviction.
The district court in the second trial never inquired
into the potential conflict of interest raised by Vega's
representation of both Rivera and Ortiz, although the same judge
presided over both proceedings and apparently was aware of Vega's
role in the first trial. In its ruling denying Rivera's motion for
a new trial, the district court relied on the Advisory Committee
Notes to Fed. R. Crim. P. 44(c) and concluded that Vega had engaged
in joint representation by working, at least for a period of time,
both for Rivera on his trial and for Ortiz in preparation for his
sentencing. The government does not challenge this determination
of joint representation and we will assume it to be correct for
purposes of this case.
Rivera's initial brief, citing United States v. Foster,
469 F.2d 1 (1st Cir. 1972), rests on the assertion that the
district court's failure to conduct a hearing into the possible
conflict requires a new trial. This analysis misreads Foster,
which indicated at most that, when the district court does not
inquire into a conflict, then on direct appeal the burden of
persuasion shifts to the government to demonstrate that a negative
effect from the conflict was "improbable." Id. at 5. We long ago
cautioned against granting an undeserved "windfall" to defendants
by vacating convictions on the basis of Foster violations "where it
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is more likely than not that conflicting interests did not hamper
counsel's pursuit of a potentially effective defense." United
States v. Martorano, 620 F.2d 912, 916 (1st Cir. 1980); see also
Brien v. United States, 695 F.2d 10, 15 (1st Cir. 1982) ("[T]he
conflict must be real, not some attenuated hypothesis having little
consequence to the adequacy of representation.").
Moreover, the continued vitality of the Foster burden-
shifting framework is called into question by the Supreme Court's
recent decision in Mickens v. Taylor, 122 S. Ct. 1237 (2002). That
case involved a situation where the trial judge had "fail[ed] to
inquire into a potential conflict of interest about which it knew
or reasonably should have known." Id. at 1239. The Supreme Court
concluded that such a failure on the trial judge's part "does not
reduce the petitioner's burden of proof" to demonstrate that the
potential conflict he alleges actually affected the representation
he received in order to show a constitutional violation. Id. at
1244. The Mickens requirement that the defendant show the alleged
conflict actually affected the representation received is not
precisely the same as demonstrating prejudice. Id. at 1244(standard "requires proof of effect upon representation but (once
such effect is shown) presumes prejudice"). But Mickens does
require more than the showing Rivera offered in his opening brief,
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filed before Mickens, by simply pointing to the absence of a Foster
hearing.11
In this case, because the likelihood of the joint
representation having an effect on Rivera's defense is so minimal,
it does not matter who had the burden. The district court
determined, and we agree, that the government had amply shown that
Rivera's defense did not suffer from any conflict. Thus, we need
not, and do not, decide the burden-shifting question here.
The standard for an effect is that the defendant "might
plausibly have pursued an alternative defense strategy, and that
the alternative strategy was in conflict with, or may not have been
pursued because of, [the attorney's] other loyalties or interests."
United States v. Ramirez-Benitez, 292 F.3d 22, 30 (1st Cir. 2002);
see also Reyes-Vejerano v. United States, 276 F.3d 94, 97 (1st Cir.
2002) (applying same test); Brien, 695 F.2d at 15 (adopting same
test).
11
In his reply brief, filed after Mickens, Rivera attempts
to demonstrate the effect on his representation as follows:
Strategies concerning the development of Rivera's perceived
role in the organization as compared with that of Ortiz,
arguments related to separate conspiracies, temporal
limitations regarding the scope of independent conspiracies,
proofs concerning drug quantities at Rivera's trial which
differed from those in the plea entered into by Ortiz and for
which Ortiz had yet to be sentenced, considerations involved
in calling Ortiz as a witness, as well as plea and/or
cooperation agreement overtures, for which Rivera was in
competition with Ortiz, were, necessarily, influenced.
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The existence of an alternative strategy is most
implausible here. Ortiz, the other defendant represented by Vega,
was a minor figure in the conspiracy. Rivera, however, was the
leader, and he eventually received a life sentence, the stiffest of
any defendant. The suggestion that the government would have
accepted a plea from Rivera in preference to one from Ortiz is
untenable, even more so since Ortiz had already entered his plea
before Rivera's trial began. Nor do we find any significant
evidence that might have been helpful to Ortiz's sentencing but
harmful to Rivera's trial, or vice versa. There is no indication
that Rivera would have any good reason to call Ortiz as a witness.
Finally, the potential impact of any conflict was further reduced
because Rivera's previous appointed attorney remained in the case
as co-counsel with Vega. In fact, it is reasonable to think that
Rivera hired Vega precisely because he managed to get a hung jury
for Ortiz, knowing the lawyer would complete his post-plea
representation of Ortiz through sentencing. Rivera, it seems,
wanted to have his cake and eat it too.
On different facts, we might conclude that an underlying
multiple representation presents a serious question of conflict.
In Rivera's case, however, there is nothing more than speculation
of possible conflict, which would not pass muster after Mickens or
before it. See United States v. Burgos-Chaparro, 309 F.3d 50, 52-
53 (1st Cir. 2002) (finding "speculation" an inadequate threshold
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showing by defendant claiming conflicts after Mickens); United
States v. Michaud, 925 F.2d 37, 41 (1st Cir. 1991) (rejecting, in
pre-Mickens case, conflict of interest claim that was
"insufficiently specific" in describing nature of conflict). In
order to find an effect from an alleged attorney conflict, "some
adverse action or inaction is required that can be traced to the
conflict in loyalty. Merely to speculate that the divided loyalty
could have caused such a step is not enough." Burgos-Chaparro, 309
F.3d at 53.
2. Caribe and Nelson
As to Caribe and Nelson, who did not present their claims
to the district court, it is the settled policy of this court not
to entertain fact-specific ineffective assistance of counsel claims
on direct appeal when they have not been raised previously. See
United States v. Campbell, 268 F.3d 1, 7 (1st Cir. 2001). There is
an exception to this rule "where the critical facts are not
genuinely in dispute and the record is sufficiently developed to
allow reasoned consideration of an ineffective assistance claim."
United States v. Netanel, 938 F.2d 302, 309 (1st Cir. 1991). But
the exception does not apply to any of the three claims that Caribe
or Nelson advances.
Caribe's purported conflict of interest is that one of
his attorneys, Jose Aguayo, represented CI Hernandez in a previous
case. Caribe says that he was unaware of this previous
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relationship until after his own trial and would not have accepted
Aguayo as his lawyer if he had known. But the factual presentation
he makes is inadequate for us to judge the effect of any conflict.
Caribe also makes a more common ineffectiveness claim alleging
shortcomings in the performance of one of his other attorneys, but
it too is very fact-specific and it is supported by no more than a
list of complaints in Caribe's brief. Finally, Nelson's claim,
advanced pro se, is even more clearly ineligible for consideration
under the Netanel exception. He asserts a conflict of interest
based on his lawyer's representation of David Ramos-Rivera, who was
not indicted as a defendant in this conspiracy case; Nelson offers
no explanation of the supposed conflict. We will not entertain any
of these three claims for the first time on the meager record the
appellants present to us.12
12
For the same reason, we also reject Rivera's claim, raised
cursorily in his appellate briefs and not raised in his motion for
a new trial before the district court, that attorney Vega was
further conflicted because of his past representation of Miguel
Montanez (a/k/a "Mickey Motors"). Above, we uphold the district
court's decision to exclude impeachment evidence from Rivera's
trial concerning the alleged connection between CI Hernandez and
the Mickey Motors murders. Rivera makes no explanation of how
Vega's past relationship with Montanez made any difference to the
case, and seems merely to have tacked this claim onto his more
sustained argument concerning joint representation with Ortiz.
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