United States v. Razo , 782 F.3d 31 ( 2015 )

United States Court of Appeals
For the First Circuit
No. 13-2176
UNITED STATES OF AMERICA,
Appellee,
v.
MARK RAZO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Lynch, Chief Judge,
Howard and Barron, Circuit Judges.
Jeffrey M. Silverstein, with whom Law Office of Jeffrey M.
Silverstein, P.A., was on brief, for appellant Mark Razo.
Margaret D. McGaughey, Assistant United States Attorney,
with whom Thomas E. Delahanty, II, United States Attorney, was on
brief, for appellee.
April 1, 2015
BARRON, Circuit Judge. At his trial in the federal
District of Maine, Mark Razo faced a number of charges relating to
drug trafficking. After his conviction on all counts, he received
a sentence of 300 months in prison. Razo now asserts various
alleged errors both at trial and at sentencing. Finding none that
require reversal, we affirm both the conviction and the sentence.
I.
Razo was charged with one count of conspiracy to commit
a drug trafficking offense under 21 U.S.C. §§ 841(a)(1) and 846 and
three counts of criminal use of a communications facility to
facilitate a trafficking offense under 21 U.S.C. §§ 843(b) and (d).
The jury convicted Razo on all counts. The District Court then
sentenced Razo to 300 months of imprisonment on the conspiracy
count. The judge also sentenced Razo to 48 months of imprisonment
on the three counts of criminal use of a communications facility.
That sentence was to be served concurrently with Razo's sentence
for the conspiracy count.
This appeal followed. Razo challenges his conspiracy
conviction and sentence under the Confrontation Clause. He also
brings challenges under the Sentencing Guidelines and Alleyne v.
United States, 133 S. Ct. 2151 (2013). Finally, he challenges as
improper both the use at trial of certain recorded phone calls and
venue in the District of Maine. We discuss the facts relevant to
each of the these challenges in the course of our analysis.
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II.
Razo's primary challenge arises under the Confrontation
Clause, which provides that "[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the
witnesses against him." U.S. Const. amend. VI. Razo contends to
us, as he did below, that the Clause bars the admission of a
portion of the testimony of a state chemist, Amy Johnson.
At trial, Johnson testified about the laboratory analysis
she performed on a substance seized from one of Razo's co-
conspirators, Blanca Ortiz. Johnson testified that her analysis
confirmed the substance was pure methamphetamine. And her
testimony about the methamphetamine's purity was key to the jury's
finding that the conspiracy involved 50 grams of pure
methamphetamine. Moreover, the District Court relied on this jury
finding at sentencing in finding Razo guilty of an aggravated drug
trafficking offense under 21 U.S.C. § 841(b)(1)(A), which carries
a statutory maximum of life.
Razo's Confrontation Clause challenge focuses solely on
the portion of Johnson's testimony that concerned a "known
standard" methamphetamine sample that the state crime lab used to
create a reference point for comparison with seized evidence. The
state crime lab annually received that sample from a private
manufacturer, the Sigma Chemical Company. Members of the crime lab
then analyzed the sample to confirm that the lab's "reference
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library" accurately reflected the properties of the known standard
sample.
Specifically, Razo points to the part of Johnson's
testimony in which she states that the state crime lab relied on
the manufacturer's assurance that the known standard sample was
100-percent pure. And Razo also points to the part of Johnson's
testimony acknowledging that, after testing the seized substance,
she compared the results of that testing to results generated
through analysis by others at the state crime lab of the known
standard sample Sigma had supplied.
Razo thus argues that, contrary to the Confrontation
Clause, Johnson's testimony relied on hearsay statements arising
out of the analysis and production of that known standard sample,
even though the source (or sources) for those statements were not
made available for cross-examination. And to support that
challenge, Razo relies on the line of authority that begins with
Crawford v. Washington, 541 U.S. 36 (2004).
In Crawford, the Supreme Court held that the
Confrontation Clause applies to "testimonial" statements, whether
made in or out of court. That category, Crawford explains,
includes "ex parte in-court testimony or its functional equivalent
-- that is, material such as affidavits, custodial examinations,
prior testimony that the defendant was unable to cross-examine, or
similar pretrial statements that declarants would reasonably expect
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to be used prosecutorially." Id. at 51. As further support for
his argument, Razo also relies on two recent Supreme Court cases
that followed Crawford. There, the Court held that the admission
of government testimony about forensic tests performed by non-
testifying analysts violated the Confrontation Clause. See
Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009); Bullcoming v.
New Mexico, 131 S. Ct. 2705 (2011).
But, as the government points out, unlike in either
Melendez-Diaz or Bullcoming, the analyst who testified in this case
-- Johnson -- did personally perform the forensic testing on the
seized evidence and personally compared the results with the
analysis of the known standard sample. And while a portion of her
testimony did address lab work relating to the known standard
sample that she did not perform herself, we conclude that portion
presents no Confrontation Clause problem under Crawford or the
precedents that followed in its wake.1
In demarcating the bounds of the Confrontation Clause,
the Supreme Court has only confronted cases where the challenged,
out-of-court statements were made in the context of a particular
investigation. In this case, by contrast, as Johnson's testimony
1
In addressing that portion of Johnson's testimony, the
parties dispute whether Johnson was explaining the assumptions for
her own forensic work or testifying about the accuracy of the other
lab work on which she relied. But, as we explain, even if Johnson
went beyond merely describing the assumptions on which her own work
rested, there was still no Confrontation Clause violation.
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makes clear, the production of the known standard sample, like the
analysis of it, occurred prior to and without regard to any
particular investigation, let alone any particular prosecution.
The analysis and production instead merely established a general
reference point that could assist other analysts (like Johnson
herself) in determining the nature of evidence seized in connection
with a later investigation or prosecution. And while Johnson's
testimony recounted her reliance on this reference point, she did
not recount any express, formalized statements that arose from its
development.
We conclude that these distinctions, in this case, are
determinative. To be sure, at a general level, Johnson used the
reference point for "the purpose of establishing or proving some
fact at trial." Melendez-Diaz, 557 U.S. at 324. Her testimony
conveyed reliance on the lab's baseline purity standard and assumed
its reliability.
But the record does not show that Johnson described any
particular out-of-court statements. And, on this record, we
struggle to see how any out-of-court statements that Johnson
implicitly relied upon regarding the sample's purity can be
described as having been made with "a 'primary purpose' of
'establishing or proving past events potentially relevant to later
criminal prosecution.'" United States v. Cameron, 699 F.3d 621,
640 (1st Cir. 2012) (quoting Bullcoming, 131 S. Ct. at 2714 n.6).
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Any such statements would have been made when Sigma provided the
sample or when the state crime lab's analysts updated the
"reference library." Nothing in the Supreme Court's precedents
indicates that the term "testimonial" stretches to cover this
analyst's implicit reliance on such background, empirically-
verifiable statements or representations that were incorporated by
the crime lab for use, prospectively, in all future analyses the
lab would undertake. Cf. Melendez-Diaz, 557 U.S. at 311 n.1
(suggesting that "documents prepared in the regular course of
equipment maintenance may well qualify as nontestimonial records").
In consequence, in referencing work related to the known
standard sample, Johnson was not testifying about statements made
to establish or prove past "events," as has been true in each case
Razo invokes to support his challenge. She was instead testifying,
at most, about statements (if statements they can be called) that
had been used to establish a background reference point for future
testing of materials that then would be used to establish or prove
such events. And, of course, with respect to that testing, Johnson
herself performed it, testified about what she did, and was subject
to cross-examination. Thus, to the extent Johnson could be said to
have testified to the truth of any such statements by other
analysts, those statements were not testimonial under the Crawford
line of authority. See People v. Pealer, 985 N.E.2d 903, 907 (N.Y.
2013) ("The fact that the scientific test results and the
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observations of the technicians might be relevant to future
prosecutions of unknown defendants was, at most, an ancillary
consideration when they inspected and calibrated the machine.");
Commonwealth v. Dyarman, 73 A.3d 565, 574 (Pa. 2013)
("[C]alibration and accuracy certificates [for breathalyzer
machines] were not prepared for the primary purpose of providing
evidence in a criminal case, let alone for the primary purpose of
accusing appellant.").
The government adds that the Supreme Court's recent
fractured decision in Williams v. Illinois, 132 S. Ct. 2221 (2012),
supports this conclusion. And, without addressing how Williams may
or may not have changed the primary purpose test under the Crawford
line of authority, see, e.g., United States v. James, 712 F.3d 79,
95-96 (2d Cir. 2013), we agree.
Consistent with the test used by the plurality opinion in
Williams, statements arising from the analysis and production of
the known standard sample were "not prepared for the primary
purpose of accusing a targeted individual," Williams, 132 S. Ct. at
2243 (plurality opinion). And, to the extent that a testimonial
statement must be a "formalized statement[] bearing indicia of
solemnity," as Justice Thomas indicated in his concurrence in
Williams, id. at 2261 (Thomas, J., concurring), Razo also has not
alleged that any out-of-court statement arising from the analysis
or production of the sample so qualified.
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For these reasons, we conclude the Confrontation Clause
did not require more than Johnson's presence. And so Razo's
challenge on this score fails.
III.
Razo also raises a number of objections to his sentence.
We review challenges to a district court's legal interpretations of
the Sentencing Guidelines de novo. United States v. Gonzalez, 609
F.3d 13, 20 (1st Cir. 2010). We review a district court's factual
determinations for clear error. Id. Challenges to the
reasonableness of a sentence are reviewed for abuse of discretion,
with respect to both procedural error and substantive
reasonableness. United States v. King, 741 F.3d 305, 307-08 (1st
Cir. 2014). Applying these standards of review as applicable, we
find that none of the challenges to Razo's sentence have merit.
A.
Razo first argues that the District Court erred by giving
one of his co-conspirators disparate -- and more favorable --
treatment. Razo rests this argument on the disparity in what is
known under the guidelines as the base offense level, as Razo was
assigned a higher one than his co-conspirator.
The base offense level is a key ingredient in the
calculation that a district court must make to determine the
recommended guidelines sentencing range for a defendant. Here, the
District Court determined that Razo's base offense level was 38
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while the base offense level of the co-conspirator in question,
Blanca Ortiz, was 34.
The District Court concluded Razo warranted the higher
base offense level. The District Court found that Razo, on the
basis of facts set forth in the pre-sentence report that the
probation office prepared, was responsible for an offense that
involved 1,789 grams of pure methamphetamine. By contrast, the
District Court found the other defendant, Ortiz, on the basis of
facts stipulated in her plea agreement, to be responsible for an
offense involving a drug quantity of 1,789 grams of impure
methamphetamine. See U.S.S.G. §§ 2D1.1(c)(1), (3) (2010). And the
District Court correctly concluded that the base offense level is
higher for an offense involving that amount of pure methamphetamine
than for an offense involving that amount of the drug when it is
not pure.
In treating Razo and Ortiz differently in this respect,
the District Court committed no error, even though Ortiz was
involved in the same conspiracy involving the same drugs. The
District Court explained that Ortiz entered into a plea agreement
two days before the prosecutor received the lab report detailing
the purity of the methamphetamine. Razo, by contrast, was
convicted after a trial in which that evidence of purity had been
introduced. The defendant's disparity argument therefore fails,
both because it was fully considered by the District Court and
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because the District Court reasonably attributed the basis for the
difference at issue to the fact that, due to Ortiz having pled, she
was sentenced on the basis of a different record than Razo. See,
e.g., United States v. Dávila-González, 595 F.3d 42, 50 (1st Cir.
2010) ("While avoidance of disparities among codefendants may be
considered, a party is not entitled to a lighter sentence merely
because his co-defendants received lighter sentences." (internal
quotation marks omitted)); United States v. Rodríguez-Lozada, 558
F.3d 29, 45 (1st Cir. 2009) (describing "material difference"
between defendants who pled guilty pursuant to plea agreements and
those who did not); United States v. Brandao, 539 F.3d 44, 65 (1st
Cir. 2008) (same).
B.
Razo next challenges the District Court's four-point
upward increase in his total offense level under the guidelines.
See U.S.S.G. § 3B1.1(a). The total offense level is calculated by
adding points for enhancements to the base offense level. To
justify the increase under U.S.S.G. § 3B1.1(a), the District Court
found that Razo was a leader in the conspiracy and that the
conspiracy involved five or more participants. See United States
v. Lucena-Rivera, 750 F.3d 43, 50 (1st Cir. 2014).
The District Court identified five conspirators who were
involved with an intercepted shipment of drugs to Iowa as well as
additional unnamed suppliers and retailers who had to be involved
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in this planned distribution. The record reveals evidence
sufficient to show the District Court did not clearly err in so
finding. See United States v. Carrero-Hernández, 643 F.3d 344, 352
(1st Cir. 2011).
Similarly, the record refutes Razo's contention that the
District Court erred in finding Razo had a leadership role in the
conspiracy. The District Court stated that it was "convinced
beyond any shadow of a doubt" of Razo's leadership role. The
District Court pointed specifically to Razo's role in organizing
the activities of the conspiracy and his role in the conspiracy's
hierarchy above Barry Diaz, a co-conspirator the District Court
described as having "stood over the actual distributors." We see
no basis for concluding that these factual findings are so lacking
in record support as to be clearly wrong. See United States v.
Tejada-Beltran, 50 F.3d 105, 111 (1st Cir. 1995).
C.
Razo also challenges his designation as a career offender
pursuant to U.S.S.G. § 4B1.1. To qualify as a career offender
under that guideline, a defendant must have at least two prior
felony convictions for a "crime of violence" or a controlled
substance offense. See U.S.S.G. § 4B1.1(a). The District Court
determined that Razo's prior convictions so qualified him. Razo
contends that one of his prior offenses, however, does not
constitute a "crime of violence" within the meaning of that
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guideline. And for that reason, he contends that the career
offender designation was erroneously applied.
The conviction in question is for violating section
2800.4 of California’s Vehicle Code.2 Section 2800.4 requires, as
a predicate, a violation of section 2800.1 of California’s Vehicle
Code. That statute criminalizes flight from a police officer.
Section 2800.4 then also requires -- as a necessary element -- that
"the person operating the pursued vehicle willfully drives that
vehicle on a highway in a direction opposite to that in which the
traffic lawfully moves upon that highway." Cal. Veh. Code
§ 2800.4.
Given the elements of section 2800.4, Razo's argument is
foreclosed by Sykes v. United States, 131 S. Ct. 2267 (2011). In
Sykes, the Supreme Court interpreted the Armed Career Criminal
Act's definition of a "violent felony." That definition is
consonant with the career offender guideline's definition of a
"crime of violence." United States v. Hart, 674 F.3d 33, 41 n.5
(1st Cir. 2012) ("The Sentencing Guidelines' term 'crime of
violence' and ACCA's term 'violent felony' are defined almost
identically. Accordingly, 'decisions construing one term inform
the construction of the other.'" (citations omitted)). Thus, if
2
Though the specific statute for the crime of conviction does
not appear in the record, Razo and the government point to section
2800.4 of California’s Vehicle Code in their briefs, which aligns
with the prior offense as described in the pre-sentence report.
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Razo was convicted of an offense that qualified as a "violent
felony" under Sykes, he was convicted of an offense that qualifies
as a "crime of violence" under the career offender guideline. And
Sykes shows that Razo was.
Sykes held that an Indiana statute that criminalized
vehicular flight from a police officer was a "violent felony." 131
S. Ct. at 2273, 2277. The California offense at issue here
criminalizes a particular type of vehicular flight that is even
more dangerous than the type criminalized by the Indiana statute
that Sykes concluded was a violent felony. Razo's conviction under
the California statute, therefore, necessarily qualifies as a crime
of violence under the career offender guideline. See United States
v. Davis, 773 F.3d 334, 343 (1st Cir. 2014) ("[T]he risk of
violence is inherent to vehicle flight." (quotation marks and
alteration omitted)).
As a fallback position, Razo argues that, even accepting
that his conviction under Section 2800.4 qualifies as a crime of
violence under the career offender guideline, the District Court
still imposed an unreasonably harsh sentence. But this claim, too,
fails.
At sentencing, a district court is instructed to consider
a variety of factors. See 18 U.S.C. § 3553(a). The District Court
acknowledged the sentence was stiff, but carefully applied the
factors that section 3553 requires the judge to consider. See
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Brandao, 539 F.3d at 65. And, after making the individualized
assessment of the circumstances of this particular defendant in
connection with those factors, the District Court varied downwards
from the recommended guidelines sentence. The District Court did
so based in part on the fact that Razo had only two prior
convictions for crimes of violence. There is thus no basis for
concluding that Razo's sentence was substantively or procedurally
unreasonable. See United States v. Martin, 520 F.3d 87, 96 (1st
Cir. 2008).
D.
Razo raises one other challenge to his sentence on the
conspiracy count. He contends the District Court subjected him to
a penalty range unauthorized by statute because the District Court
impermissibly used the statutory maximum from one part of a statute
and the mandatory minimum from another. Razo contends the District
Court was obliged to use the minimum and maximum set forth in the
same part of the statute and not to mix and match. And further,
Razo contends, had the District Court done as required, the
District Court would have had to have used a much lower statutory
maximum than it did.
Although we conclude there is no merit to Razo's
argument, given the facts of this case, it takes a bit of work to
explain why. And that is because the challenge rests on some
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shifts in the law of sentencing that occurred between the time of
trial and the time of sentencing in this case.
We begin with the basics. Razo was charged with
conspiracy to commit a trafficking offense under 21 U.S.C. §§ 846
and 841(a)(1). The penalties for a violation of 21 U.S.C.
§ 841(a)(1) are defined in the subsections of § 841(b)(1). Those
subsections provide for a default penalty range, § 841(b)(1)(C),
and then higher ranges for aggravated offenses when a certain
triggering quantity of drugs is involved, § 841(b)(1)(A), (B).
Against this statutory backdrop, the District Court took
the maximum of life from § 841(b)(1)(A) and used a minimum of zero
years rather than the much higher minimum from § 841(b)(1)(A). The
District Court resorted to this approach -- which Razo calls
"mix[ing] and match[ing]" -- because of a change in the state of
the law between trial and sentencing.
At the time of trial, First Circuit law based the
statutory minimum under 21 U.S.C. § 841 on the quantity of drugs
specifically attributable to the defendant, and the statutory
maximum on the quantity attributable to the conspiracy as a whole.
United States v. Colón-Solís, 354 F.3d 101, 103 (1st Cir. 2004).
At trial, the government had sought to trigger the higher penalty
range that § 841(b)(1)(A) established. To do so, the government
asked the jury to return a finding that the whole conspiracy
involved over 50 grams of pure methamphetamine, or 500 grams of a
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substance containing methamphetamine. The government sought that
jury finding because it was established at that time that the
lifetime maximum under § 841(b)(1)(A) could be triggered only when
the jury returned a finding -- as it did here -- as to what
quantity of drugs was encompassed within the entire conspiracy.
See Apprendi v. New Jersey, 530 U.S. 466, 491-92 (2000); United
States v. Correy, 570 F.3d 373, 377 (1st Cir. 2009).
At that time, however, there was no similar precedent
requiring a jury finding in order to apply the aggravated minimum
from § 841(b)(1)(A), which is 20 years with a qualifying prior
conviction. Instead, a judge could make a finding at the time of
sentencing about the quantity of drugs involved in the conspiracy
attributable to the individual defendant. See Colón-Solís, 354
F.3d at 103. And so long as the judge found that amount was large
enough, the minimum of 20 years (at least for a defendant with
Razo's criminal history) would apply. Thus, consistent with the
law at the time of trial, the government did not seek, and thus did
not receive, a jury finding on that issue.
But, by the time of sentencing, the state of the law had
changed as a result of Alleyne v. United States, 133 S. Ct. 2151
(2013). There, the Court held that a jury finding was required to
trigger a mandatory minimum. Id. at 2155. And while here, the
District Court concluded that Razo was subject to the maximum
sentence of life established under § 841(b)(1)(A) because of the
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jury's finding that the conspiracy involved 50 grams of pure
methamphetamine, the mandatory minimum for that provision could not
be similarly applied. That was because there was no jury finding
on the quantity of drugs individually attributable to Razo and
Alleyne had just held a jury finding was necessary for an element
that triggered a mandatory minimum. And so the judge applied no
minimum at all, which in this case was also the result that would
have obtained under the default penalty range in § 841(b)(1)(C).
Thus, even assuming Razo is correct to characterize the
District Court as having taken the minimum from § 841(b)(1)(C) and
the maximum from § 841(b)(1)(A), and even assuming doing so is not
permissible, see United States v. Ramírez-Negrón, 751 F.3d 42, 49
n.4 (1st Cir. 2014) (leaving open "whether this asymmetry [in
defining the applicable sentencing range] may remain after
Alleyne"), we agree with the government that there was no harm to
Razo. Here, the use of the maximum of life was supported by a jury
finding that the whole conspiracy involved at least 50 grams of
pure methamphetamine. And, Razo was not subjected to a minimum
that could possibly have caused him any harm, as the minimum
applied -- zero years -- was no minimum at all. And while the
district judge purportedly applied a statutory maximum of life,
that did not harm Razo either. The judge in fact imposed a
sentence below the statutory maximum that would have applied to a
defendant with Razo's criminal history under the default penalty
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range in § 841(b)(1)(C), and nothing indicates that the
"theoretical" maximum informed the sentencing determination. See
United States v. Robinson, 241 F.3d 115, 119 (1st Cir. 2001)
("[T]heoretical exposure to a higher sentence, unaccompanied by the
imposition of a sentence that in fact exceeds the
otherwise-applicable statutory maximum, is of no consequence.").
In any event, there also was overwhelming and
uncontradicted evidence to support the finding necessary to trigger
the higher minimum that was not used but that would apply under
§ 841(b)(1)(A) -- that the individual was responsible for at least
50 grams of pure methamphetamine. That evidence consists of Amy
Johnson's testimony that the drugs seized from Blanca Ortiz were of
that quantity and purity and Ortiz's testimony that those drugs
originated with one of Razo's suppliers and were transported by a
courier arranged and supervised by Razo. And, further, the
government presented phone records that revealed that Razo was
personally involved in planning the distribution of that shipment
of drugs through his co-conspirator Diaz. In fact, Razo points to
no evidence contradicting the drug quantities testified to at
trial, nor does he assert that he was responsible for a lower
quantity. Cf. United States v. Casas, 425 F.3d 23, 66 (1st Cir.
2005). Thus, a "reasonable jury necessarily would have found the
aggravating element beyond a reasonable doubt" even though it was
not asked to do so here. United States v. Pizarro, 772 F.3d 284,
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296 (1st Cir. 2014); see also United States v. Harakaly, 734 F.3d
88, 97 (1st Cir. 2013) ("Because the evidence of the triggering
drug quantity was overwhelming, we hold that the Alleyne error was
harmless beyond a reasonable doubt.").
For all of these reasons, we thus agree with the
government that if there was any error here, it was harmless beyond
a reasonable doubt.3
IV.
Razo presents two remaining challenges. He first
contests the admission of certain recorded phone calls during
trial. He then contends that Maine was not a proper venue for the
trial. Neither challenge is persuasive.
A.
Razo objects to the use at trial of unspecified recorded
calls the government obtained through wiretaps during the
3
We need not confront Razo's claim that the District Court
erroneously used the statutory maximum of life imprisonment under
21 U.S.C. § 841(b)(1)(A) in applying the career offender guideline.
See U.S.S.G. § 4B1.1(b) (providing for an alternate base offense
level calculation for career offenders, determined from the
relevant statutory maximum, but applied only when higher than the
ordinary guidelines calculation). As we have already explained,
the District Court did not err in calculating Razo's ordinary base
offense level at 42, after including the four-point leadership
enhancement. This base offense level was determined based on the
quantity and type of drug involved in the offense, see U.S.S.G.
§ 2D1.1(c)(1) (2010), and Razo's role in the offense, see U.S.S.G.
§ 3B1.1(a), without reference to any statutory maximum. And
because this base offense level was higher than the alternate base
offense level available under the career offender guideline, the
statutory maximum was not, in fact, used.
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investigation. Razo argues some of these calls were wrongly
admitted under Federal Rule of Evidence 801(d)(2)(E), which states
that the out-of-court statements of co-conspirators, made during
and in furtherance of the conspiracy, are not hearsay. See United
States v. Mitchell, 596 F.3d 18, 22 (1st Cir. 2010). Razo contends
that some of the recorded calls were admitted as co-conspirator
statements even though they were not made in furtherance of the
conspiracy in which he is charged with participating. He argues
these out-of-court statements were thus inadmissible under the
hearsay rule.
Razo does not specify, however, the non-qualifying calls
he has in mind, nor any that were in fact erroneously admitted.
And the government contends that in fact no such non-qualifying
calls were admitted. Absent Razo identifying the calls he believes
should have been excluded for falling outside the co-conspirator
exception, we must reject his challenge. United States v. Zannino,
895 F.2d 1, 17 (1st Cir. 1990) (holding that claims that are not
developed on appeal are waived).
B.
Razo's final challenge concerns venue. Razo was
incarcerated in California for the duration of the conspiracy and
was not physically present in Maine for any of these offenses. He
thus argues the government cannot establish venue in Maine.
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Absent certain exceptions not relevant here, the
government must prosecute an offense in a district where the
offense was committed. Fed. R. Crim. P. 18. But when a crime
consists of distinct parts, taking place in different localities,
venue is proper wherever any part of that crime can be proved to
have taken place. United States v. Scott, 270 F.3d 30, 35 (1st
Cir. 2001).
When challenged, the government must prove the required
connection between the crime and the venue by a preponderance of
the evidence. United States v. Hall, 691 F.2d 48, 50 (1st Cir.
1982). If a defendant appeals a finding that venue was proper, we
review legal conclusions de novo and factual findings for clear
error. United States v. Salinas, 373 F.3d 161, 164 (1st Cir.
2004). And, "[f]or purposes of that review, we align the evidence
of record in the light most flattering to the venue determination."
Id.
The record shows that while Razo was incarcerated in
California, he used a contraband cell phone to coordinate a
trafficking operation with his co-conspirator Barry Diaz. The
record provides support for the fact that Diaz and Razo spoke on
the phone while Diaz was in Maine. The evidence further shows that
these calls addressed drug distribution in Maine, and that money
orders were sent from Diaz in Maine to Razo's contacts in
California. Thus, the evidence of Razo's co-conspirator's actions
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in Maine suffice to support the jury's venue determination. See
United States v. Cordero, 668 F.2d 32, 44 (1st Cir. 1981); see also
United States v. Uribe, 890 F.2d 554, 558 (1st Cir. 1989) ("As to
the conspiracy charge (count one), it is clear beyond peradventure
that venue was proper so long as any act in furtherance of the
conspiracy was committed in the district (even if a particular
conspirator was not himself physically present there).").
The record also provides sufficient support for finding
venue proper as to the three counts for criminal use of a
communications facility to facilitate a trafficking offense under
21 U.S.C. §§ 843(b), (d). Venue has to be proper for each count,
as "[t]he criminal law does not recognize the concept of
supplemental venue." Salinas, 373 F.3d at 164. But Razo concedes
Diaz used a communication facility in Maine for the calls
underlying all three counts. See Andrews v. United States, 817
F.2d 1277, 1279 (7th Cir. 1987) (finding a section 843(b) offense
"is committed both where the call originates and where it is
received"). And, further, the calls between Razo and Diaz
facilitated a drug conspiracy that involved the distribution of
drugs in Maine, for which venue in Maine was proper. See United
States v. Acosta-Gallardo, 656 F.3d 1109, 1122 (10th Cir. 2011)
(finding venue for a section 843 offense proper where venue is
established for the underlying trafficking offense). Thus, Razo's
venue challenge cannot succeed.
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V.
Because we find no reversible error among Razo's many
challenges, the judgment of the District Court is affirmed.
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