United States v. Ruiz ( 2021 )

United States Court of Appeals
For the First Circuit
No. 20-1156
UNITED STATES OF AMERICA,
Appellee,
v.
MINERVA RUIZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Lynch and Kayatta, Circuit Judges,
and Woodcock, District Judge.
Emmett E. Robinson and Robinson Law Firm, LLC, on brief for
appellant.
Lauren A. Graber, Assistant United States Attorney, and
Andrew E. Lelling, United States Attorney, on brief for appellee.
June 4, 2021
 Of the District of Maine, sitting by designation.
WOODCOCK, District Judge. On July 24, 2019, a jury
convicted Minerva Ruiz of one count of conspiracy to distribute
and to possess with intent to distribute heroin in violation of 21
U.S.C. § 846 and one count of distribution of heroin in violation
of 21 U.S.C. § 841(a)(1). On January 21, 2020, the district court
imposed a downward variant sentence of forty-eight months of
imprisonment followed by a two-year term of supervised release.
Ruiz appeals her convictions and sentence on three
grounds. First, she contends the district court abused its
discretion by finding certain coconspirator statements were non-
hearsay under Federal Rule of Evidence 801(d)(2)(E) and admitting
the statements into evidence. Second, she submits the district
court failed to properly instruct the jury about the elements of
her offenses. Third, she argues the district court clearly erred
by applying a three-level mitigating role reduction under United
States Sentencing Guidelines § 3B1.2 rather than a four-level
minimal role reduction. We affirm the convictions and sentence.
I. Background
Because Ruiz does not contest the sufficiency of the
evidence presented against her, we recount the facts in a "balanced
way, without favoring either side." United States v. Arias, 848
F.3d 504, 509 n.1 (quoting United States v. Rodríguez-Soler, 773
F.3d 289, 290 (1st Cir. 2014)).
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A. The Crime
In June of 2017, the United States Drug Enforcement
Administration (DEA) and Homeland Security Investigations (HSI)
began investigating a man named Dalnovis Delarosa Arias. The
investigation started after a Puerto Rican HSI confidential source
(CS) told agents that an unidentified male using a specific
cellphone number was selling heroin in Massachusetts. Under the
oversight of federal agents, the CS set up a phone call on June
28, 2017, between Delarosa and a cooperating witness named Bernie
Bravo. During the call, Delarosa told Bravo he could sell Bravo
multiple kilograms of heroin, and Delarosa agreed to meet Bravo in
Charlestown, Massachusetts, to discuss the terms of the heroin
deal. Delarosa told Bravo that he did not drive but would find a
ride to the meeting. At the instruction of federal agents, Bravo
recorded this call and all subsequent communications with
Delarosa.
On July 13, 2017, Bravo and Delarosa met in Charlestown
to discuss a heroin deal. At the time, Delarosa was dating Minerva
Ruiz. Around 2:00 p.m., before the Charlestown meeting, law
enforcement saw Delarosa and Ruiz outside an apartment on Milton
Street in Lawrence, Massachusetts, where Ruiz lived with her
parents. Law enforcement observed Delarosa and Ruiz standing near
the rear of a white Honda Civic that was registered to Ruiz at the
Milton Street address. After some time, Delarosa and Ruiz departed
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in the Honda Civic with Ruiz driving. Federal agents followed the
couple to the Bunker Hill Mall in Charlestown, Massachusetts.
When they arrived at the Bunker Hill Mall around
4:20 p.m., Bravo was waiting for Ruiz and Delarosa. Bravo climbed
into Ruiz's car and secretly recorded the ensuing conversation.
Once again, Delarosa offered to sell Bravo some heroin and Bravo
said he was interested. Bravo told Delarosa to call him after
securing the heroin.
Ruiz stayed in the car for the entire fifteen-minute
meeting. At one point, Bravo said he was uncomfortable talking
about selling drugs in front of a woman. Delarosa told Bravo not
to worry because Ruiz was his "right hand in everything." Later,
Bravo again said he was embarrassed to discuss dealing drugs in a
woman's presence. This time, Ruiz encouraged Bravo to speak freely
because her relationship with Delarosa was similar to Bravo's
relationship with his own boss.
After the July 13, 2017, Charlestown meeting, Bravo and
Delarosa spoke by phone several times. During these calls,
Delarosa informed Bravo he was still trying to get his hands on
some heroin. Around August 22, 2017, Delarosa called Bravo and
said he had just returned from New York with heroin. He offered
to sell Bravo two kilograms of heroin for $60,000 per kilogram.
The following day, the two men spoke again by phone and agreed to
meet on August 24, 2017, and consummate the transaction.
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On August 24, 2017, Ruiz drove Delarosa in her Honda
Civic to the Bunker Hill Mall in Charlestown. When they arrived
around 2:30 p.m., Bravo and his recording device were waiting.
Bravo got into the Honda Civic and asked where the heroin was.
Delarosa said, "Everything is there." Bravo peered into a bag
behind Ruiz's seat and saw two cereal boxes, Froot Loops and Apple
Jacks; each contained a brick-shaped object wrapped in black tape.
Next, Bravo told Delarosa and Ruiz that he would retrieve
their payment from his car. He exited the Honda Civic, walked to
his car, and popped the trunk. This signaled to law enforcement
that there was heroin inside Ruiz's car. Law enforcement arrested
Ruiz and Delarosa around 2:40 p.m. on August 24, 2017. Federal
agents recovered the two brick-shaped objects from Ruiz's vehicle.
A subsequent laboratory analysis confirmed the objects contained
heroin, with a net weight of about 1.8 kilograms.
B. The Trial
On September 20, 2017, a federal grand jury handed down
a two-count indictment against Delarosa and Ruiz for conspiracy
and distribution. Delarosa pleaded guilty; Ruiz went to trial in
July 2019.
Before trial, Ruiz moved to exclude the recordings and
transcripts of conversations between Delarosa and Bravo as
inadmissible hearsay. The government opposed the motion and argued
the statements were non-hearsay coconspirator statements under
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Federal Rule of Evidence 801(d)(2)(E). On the first day of trial,
the district court denied the motion to exclude, reasoning the
conversations in the Honda Civic were clearly admissible as
opposing party statements or statements of coconspirators.
On the second day of Ruiz's trial, the government
introduced recordings of the July 13, 2017, and August 24, 2017,
face-to-face meetings in her car, when Ruiz was present, and the
June 28, 2017, and August 22, 2017, phone calls between Delarosa
and Bravo, in which Ruiz did not participate. The government moved
to introduce English transcripts because the recordings were in
Spanish. Ruiz maintained a standing hearsay objection to this
evidence.
At the close of the government's case, the district court
overruled Ruiz's objection and found by a preponderance of the
evidence that Ruiz and Delarosa were coconspirators. To make this
finding, the district court relied on the transcripts of the two
meetings and the fact that Ruiz drove Delarosa to two meetings in
which Delarosa and Bravo openly discussed the sale of heroin.
However, the district court did not rely on Bravo's trial
testimony. According to his testimony about the transaction on
August 24, 2017, Bravo got into Ruiz's Honda Civic and twice asked
where the heroin was; the first question prompted Delarosa to say
that the heroin was in a cereal box and the second prompted Ruiz
to point to the cereal boxes behind the driver's seat. Referring
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to these aspects of Bravo's account, the district judge
acknowledged Bravo's "credibility . . . [had] been called into
doubt . . . because he[] doubled down on something which clearly
[was]n't in the transcript" of the conversations in the Honda
Civic. Ruiz again objected to the recordings and transcripts.
C. The Jury Instructions and Verdict
Before trial, Ruiz submitted proposed jury instructions;
one read:
6. The government must prove, beyond a
reasonable doubt, that in addition to being
present or knowing about a crime, the
defendant knowingly, deliberately, and
voluntarily associated herself with the crime
in some way as a participant-someone who
wanted the crime to be committed, not a mere
spectator. United States v. Verdugo, 617 F.3d
565 (1st Cir. 2010).
Before trial, the government objected to this instruction. It
contended the instruction went "well beyond the pattern
instructions" concerning the meaning of "mere presence." The
government instead urged the district court to adopt the same
instruction this Court approved in United States v. Verdugo, 617
F.3d 565, 579 n.3 (1st Cir. 2010).
On the final day of the Ruiz trial, the district court
circulated draft jury instructions. The draft instructions
included language substantially the same as Ruiz's proposed "mere
presence" instruction. The government objected to the words
"intentionally associated herself." Specifically, the government
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claimed the draft instruction was duplicative because "[m]ere
presence applies to all of the instructions," but conspiracy,
distribution, and aiding and abetting require different mens rea
for conviction. The district court overruled the government's
objection after concluding the language "may be duplicative" but
was not problematic because whether Ruiz intended to commit the
charged offenses was the key issue in her case.
Later that day, the district court charged the jury.
The district court told the jury it could not convict Ruiz of
distribution of heroin unless it found beyond a reasonable doubt
that she (1) "transferred heroin to another person," on the alleged
date, (2) "knew that the substance was heroin," and (3) "acted
intentionally . . . [t]hat is, that it was her conscious object to
transfer the heroin to another person."
The district court further explained to the jury that it
"may also find Ms. Ruiz guilty of either possession with intent to
distribute or distribution under a theory of aiding and abetting"
if (1) the government proved beyond a reasonable doubt that another
person committed the charged offense, and (2) "Ms. Ruiz consciously
shared the other person's knowledge of the underlying criminal
act, intended to help him, and willfully took part in the endeavor
seeking to make it succeed."
The district court then instructed the jury that "[m]ere
presence at the scene of a crime and knowledge that a crime is
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being committed are . . . not sufficient to establish aiding and
abetting." It noted "the law recognizes the difference between
mere presence and culpable presence in the context of drug-
trafficking activities" and stated that "a defendant's presence at
the point of a drug sale, taken in light of attendant
circumstances, can constitute strong evidence of complicity."
Thus, the district court instructed the jury to "evaluate the
circumstances of this case in order to determine the quality of
the defendant's presence at a location where drugs are found. This
will assist you in determining whether [she] was merely present or
was culpably present."
This language was nearly identical to the government's
proposed Verdugo instruction. However, the district court added
a final sentence on "mere presence," making the instruction
substantially similar to instruction number six in Ruiz's proposed
jury instructions. The district court stated:
In order to find Ms. Ruiz guilty, the
government must prove beyond a reasonable
doubt that in addition to being present or
knowing about the crime, that she
intentionally associated herself with the
crime charged in some way as a participant,
someone who wanted the crime to be committed,
not as a mere spectator.
Once again, Ruiz did not object to this instruction, but the
government did. The government reiterated that this sentence
should be struck because it was inconsistent with this Court's
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statement of law in Verdugo, 617 F.3d at 579 n.3. The district
court again overruled the government's objection. Several hours
later, the jury convicted Ruiz on both counts of the indictment.
D. The Sentencing
On January 17, 2020, Ruiz appeared before the district
court for sentencing. Before the sentencing hearing, the United
States Office of Probation and Pretrial Services (PO) prepared a
Presentence Investigation Report (PSR), which calculated Ruiz's
offense level to be twenty-six with a criminal history category of
I. The PO's calculations included a two-level reduction in Ruiz's
offense level under U.S.S.G. § 3B1.2(b) for being a minor
participant in the crime. With this offense level and criminal
history category, the guideline sentence range (GSR) was sixty-
three to seventy-eight months of imprisonment, two to five years
of supervised release, a fine range of $25,000 to $20 million, and
a $200 special assessment. Ruiz objected to the calculated total
offense level of twenty-six and argued that instead of a two-level
minor participant reduction, she deserved a four-level reduction
as a minimal participant under U.S.S.G. § 3B1.2(a).
At the sentencing hearing, the district court concluded
a three-level mitigating role reduction was appropriate because it
did not view Ruiz's role in the offense as minimal. It noted Ruiz
went on two trips to discuss and facilitate a heroin deal and told
Bravo to think of her relationship with Delarosa as similar to
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Bravo's relationship with his own boss. However, the district
court also acknowledged facts suggesting Ruiz was less culpable
than Delarosa. For instance, there was no evidence Ruiz received
any money from selling heroin or that she had previously
participated in drug trafficking with Delarosa.
After the three-level mitigating role reduction, Ruiz's
base offense level was twenty-five. A criminal history category
of I and an offense level of twenty-five produced a GSR of fifty-
seven to seventy-one months of incarceration, two to five years of
supervised release, a fine of $20,000 to $20 million, and a special
assessment of $200. The district court varied downward because
Ruiz has a daughter with special needs and sentenced Ruiz to forty-
eight months of imprisonment, no fine, two years of supervised
release, and a $200 special assessment.
II. Discussion
Ruiz raises three issues on appeal; we affirm the
district court because each claim of error is without merit.
A. The Coconspirator Statements Under Rule 801(d)(2)(E)
Ruiz first contends the district court abused its
discretion by admitting transcripts and recordings of
conversations between Delarosa and Bravo. She urges that under
United States v. Petrozziello, 548 F.2d 20, 23 (1st Cir. 1977),
and its progeny, there was insufficient extrinsic evidence for the
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district court to find by a preponderance that she was in a
conspiracy with Delarosa.
Ruiz preserved her challenge to the admission of the
transcripts and recordings by objecting before and during trial
when the district court admitted them into evidence. We review
preserved challenges to the admission of coconspirator statements
under Federal Rule of Evidence 801(d)(2)(E) for either clear error
or abuse of discretion. United States v. Lara, 970 F.3d 68, 77-
78 (1st Cir. 2020). When a defendant's challenge would fail under
either standard, we need not decide which standard applies. Id.
at 78.
In federal court, hearsay statements are inadmissible
for their truth unless a federal statute, the Federal Rules of
Evidence, or other rules prescribed by the Supreme Court authorize
their admission. Fed. R. Evid. 802. Under Federal Rule of
Evidence 801(d)(2)(E), a statement offered against an opposing
party that "was made by the party's coconspirator during and in
furtherance of the conspiracy" is not hearsay. Fed. R.
Evid. 801(d)(2)(E). Our decision in Petrozziello explains that
such a statement is admissible when the trial judge finds "it is
more likely than not that the declarant and the defendant were
members of a conspiracy when the hearsay statement was made, and
that the statement was in furtherance of the conspiracy." 548
F.2d at 23.
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To satisfy Petrozziello and Rule 801(d)(2)(E), the
proponent of a statement must introduce some "extrinsic evidence"
of a conspiracy between the defendant and the declarant. United
States v. Piper, 298 F.3d 47, 52 (1st Cir. 2002). In this context,
extrinsic evidence means "other evidence sufficient to delineate
the conspiracy and corroborate the declarant's and the defendant's
roles in it." Id. The trial judge considers the alleged hearsay
statements alongside the proffered extrinsic evidence and
determines whether the proponent of the statements has established
by a preponderance that the coconspirator statements are not
hearsay under Rule 801(d)(2)(E). See United States v. Sepulveda,
15 F.3d 1161, 1182 (1st Cir. 1993).
Here, Ruiz contends there was no extrinsic evidence of
a conspiracy between herself and Delarosa.1 She first urges that
the district court improperly weighed circumstantial evidence that
she twice drove Delarosa to meet with Bravo about a heroin deal.
Ruiz observes there was no evidence she knew on either occasion
that Delarosa planned to meet Bravo. She posits that the only
evidence of a conspiracy was Bravo's testimony that Ruiz confirmed
the location of the heroin during the second meeting. Ruiz,
however, says Bravo's testimony was not credible because it
1 Ruiz does not challenge whether the purported
coconspirator statements were made in furtherance of the
conspiracy.
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contradicted a transcript of Bravo's recording of the meeting.
Thus, she concludes she was merely present at the scene of the
conspiracy and, therefore, argues the district court erroneously
admitted Delarosa's conversations with Bravo.
Ruiz's arguments lack support. As the district judge
made clear, Bravo's trial testimony was immaterial to its
Petrozziello ruling. Rather, the district court concluded the
government proved by a preponderance that Delarosa and Ruiz were
in a conspiracy because (1) "at the first meeting and then again
at the second meeting, . . . she was driving the car" and (2) "it
was plainly discussed in the first meeting that the heroin, the
brown thing, was the object of the transaction." Ruiz's driving
Delarosa in her automobile to two meetings with a wholesale drug
dealer is the extrinsic evidence between Ruiz and the declarants
that she now claims is missing.
Although the district court may not have expressly
relied on this portion of the transcript, Ruiz's own inculpatory
statements from the transcripts further support the district
court's Petrozziello ruling. When Bravo hesitated to talk about
purchasing drugs in front of Ruiz, she reassured him, saying, "Let
me tell you something[,] [Delarosa] and I would be like you and
[your boss]." Ruiz's statement is not hearsay and is admissible
under Federal Rule of Evidence 801(d)(2)(A) as a statement of an
opposing party. See United States v. Mitchell, 596 F.3d 18, 24
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(1st Cir. 2010) (accepting a district court's use of "recordings
of phone calls, which came into evidence as the defendant's own
admissions" as extrinsic evidence of a drug conspiracy). By making
this statement, Ruiz inculpated herself in the conspiracy and
explained her role. Ruiz's own statement is additional extrinsic
evidence she claims is lacking.
Ruiz's mere presence argument fares no better. The
circumstantial evidence at trial indicated Ruiz actively
participated in the conspiracy. She twice drove Delarosa to meet
with Bravo about a heroin transaction. According to the
transcripts of the conversations in the Honda Civic, she saw and
heard the men planning criminal activity. Despite this, Ruiz drove
Delarosa to another meeting with Bravo. Therefore, rather than
Ruiz being "merely present," the evidence supported the district
court's conclusion that she participated in the conspiracy by
ferrying Delarosa to two meetings with a potential buyer and
driving approximately 1.8 kilograms of heroin to the second
meeting.
In summary, the government presented extrinsic evidence
at trial, including Ruiz's own inculpatory statement and her
driving Delarosa to a heroin sale, to support the admission of the
statements of coconspirators. Alongside the coconspirator
statements, such as Delarosa referring to Ruiz as his "right hand
in everything," the district judge was fully justified in
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concluding that this evidence proved by a preponderance that Ruiz
and Delarosa were coconspirators. Ruiz is correct that the
government introduced no direct evidence that she knew she was
driving Delarosa to meet Bravo. It does not matter. The
government's direct and circumstantial evidence satisfied
Petrozziello. The district court's ruling was neither clear error
nor an abuse of discretion.
B. The Jury Instructions
Ruiz next argues the district court's jury instructions
were plain error. She claims the district court incorrectly
instructed the jury that it could convict her of conspiracy and
aiding and abetting based on intent alone. This claim of error is
waived, and we therefore reject it.
When a party affirmatively requests a particular jury
instruction, that party waives its right to challenge that
instruction on appeal. See United States v. Chen, No. 19-1962,
2021 U.S. App. LEXIS 14572, at *8 (1st Cir. May 17, 2021) ("An
issue may also be waived if counsel's own conduct invited the trial
judge's ruling."); Lara, 970 F.3d at 75 ("[The defendant] targets
language in the instruction that is not materially different from
the language that his counsel requested. Accordingly, the
challenge has been waived."); United States v. Kakley, 741
F.2d 1, 3 (1st Cir. 1984) (concluding that a defendant who
requested a particular jury instruction concerning the elements of
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conspiracy had waived his right to challenge the instruction on
appellate review).
This is a textbook waiver. Absent unusual circumstances
not present here, see United States v. Orsini, 907 F.3d 115, 120-
21 (1st Cir. 2018), Ruiz may not challenge language in the jury
instructions that she herself proposed. That is the end of the
matter.
C. The Mitigating Role Reduction
Ruiz's final challenge is that the district court
wrongly imposed a three-level, rather than four-level, mitigating
role reduction. We have explained that a sentencing judge's
decision concerning a mitigating role adjustment is "a fact-
specific inquiry" and reversal is appropriate only where the
defendant demonstrates "the district court's determination as to
his role in the offense was clearly erroneous." United States v.
Mendoza-Maisonet, 962 F.3d 1, 23 (1st Cir. 2020) (quoting United
States v. De la Cruz-Gutiérrez, 881 F.3d 221, 225-26 (1st Cir.
2018)). This standard is highly deferential, and reversal is
rare. See id.Section 3B1.2 of the United States Sentencing Guidelines
permits a sentencing judge to decrease the offense level of a
defendant who had a mitigating role in the offense. U.S.
Sentencing Guidelines Manual § 3B1.2 (U.S. Sentencing
Comm'n 2018). The Guideline commentary includes a non-exhaustive
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list of factors for courts to consider when ruling on a mitigating
role adjustment, including the defendant's understanding of the
criminal activity's scope and structure, whether the defendant
participated in planning or organizing the activity, whether the
defendant exercised decision-making authority, or influenced the
exercise of such authority the defendant's specific acts, and the
benefits the defendant derived from the criminal activity. Id.
§ 3B1.2 cmt. n.3(C)(i)-(v).
Under section 3B1.2(a), a sentencing judge may reduce a
minimal participant's offense level by four levels. Id.
§ 3B1.2(a). This reduction "is intended to cover defendants who
are plainly among the least culpable of those involved in the
conduct of a group." Id. § 3B1.2 cmt. n.4. A "defendant's lack
of knowledge or understanding of the scope and structure of the
enterprise and of the activities of others is indicative of a role
as minimal participant." Id. Section 3B1.2(b) permits a
sentencing judge to reduce a minor participant's offense level by
two levels. Id. § 3B1.2(b). A defendant is a minor participant
when the defendant is a person "who is less culpable than most
other participants in the criminal activity, but whose role could
not be described as minimal." Id. § 3B1.2 cmt. n.5. A defendant
who is neither a minimal participant nor a minor participant but
had a mitigating role may receive a three-level reduction. Id.
§ 3B1.2.
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A defendant bears the burden of proving a mitigating
role adjustment is applicable by a preponderance. Mendoza-
Maisonet, 962 F.3d at 23. A defendant is never entitled as a
matter of law to a mitigating role downward adjustment. See United
States v. Montes-Fosse, 824 F.3d 168, 173 (1st Cir. 2016); United
States v. Santos, 357 F.3d 136, 143 (1st Cir. 2004)("[E]ven those
who serve purely and simply as drug couriers are not automatically
guaranteed mitigating role reductions.").
Ruiz insists the district court's decision to apply a
three-level mitigating role reduction was clearly erroneous. She
relies on language from United States v. Innamorati, 996
F.2d 456, 490 (1st Cir. 1993), and argues that as a drug courier
in a single transaction, she should have received a four-level
minimal participant reduction. Her reliance on Innamorati is
unpersuasive. First, to the extent that Ruiz implies drug couriers
should automatically receive a mitigating role reduction, we have
previously rejected this argument and do so again here. See United
States v. Vargas, 560 F.3d 45, 51 (1st Cir. 2009) ("The appellant
seems to assume that couriers are automatically entitled to
mitigating role adjustments. That is an incorrect assumption.").
Second, the language Ruiz cites from Innamorati concerns a prior
version of the Guideline commentary which listed "an individual
recruited as a courier for a single transaction in a[] larger
enterprise" as a minimal participant. 996 F.2d at 490. This
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commentary is no longer in force. See U.S.S.G. app. C supp.,
amend. 635. The district court did not err by failing to apply
inapplicable Guideline commentary.
Here, the district court rejected Ruiz's argument for a
four-level mitigating role adjustment after considering her
involvement in the heroin conspiracy and distribution offenses.
The district court determined Ruiz could not be a minimal
participant because she drove Delarosa to two meetings with Bravo.
The district court also considered Ruiz's inculpatory statements,
in which she encouraged Bravo to speak freely about the drug
transaction in her presence because he could think of Delarosa as
her "boss." At the same time, the district court's analysis was
not one-sided. It also noted that there was no evidence that Ruiz
made any money from heroin dealing or that she had previously
helped Delarosa sell drugs. For these reasons, the district court
concluded that a three-level, rather than four-level adjustment
was appropriate.
The record amply supports the district court’s finding
that Ruiz was no mere courier or mule. Ruiz drove Delarosa, a man
she described as her boss and who could not drive himself, to a
$120,000 drug deal with nearly 2 kilograms of heroin in her car.
On these facts, we find nothing clearly erroneous about the
district court's decision to apply a three-level mitigating role
reduction. See De la Cruz-Gutiérrez, 881 F.3d at 226-27 (holding
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that a district court's conclusion that a defendant was no
"ordinary mule" for purposes of a mitigating role enhancement was
not clearly erroneous because a district court's choice between
supportable alternative inferences cannot be clearly erroneous).
As we have said before, whether and to what extent a
defendant occupies a mitigating role "is, within wide limits, best
left to the sentencing court." Vargas, 560 F.3d at 51. In this
case, the sentencing judge did not come close to traversing those
wide limits.
III. Conclusion
Affirmed.
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