United States v. Rodas , 523 F. App'x 731 ( 2013 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 11-1707
UNITED STATES,
Appellee,
v.
CARLOS ROBERTO RODAS, aka Carlos Rodas-Esposito,
aka “Don Carlos,”
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. William E. Smith, U.S. District Judge]
Before
Lynch, Chief Judge,
Souter,* Associate Justice,
and Lipez, Circuit Judge.
John L. Calcagni, III for appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Peter F. Neronha, United States Attorney, was on brief, for
appellee.
May 1, 2013
*
Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
SOUTER, Associate Justice. Carlos Roberto Rodas appeals
his conviction for drug trafficking offenses, raising various
evidentiary and constitutional arguments in support of reversal.
The appeal comes to us as a companion to United States v. Figueroa,
Nos. 11-1701, 11-1702, 2013 WL 388110 (1st Cir. Jan. 30, 2013).
Like its recent predecessor, this case raises no substantial issue,
and the conviction will be affirmed with comparable brevity.
I
Along with the Figueroa defendants, Rodas was involved in
a criminal conspiracy to import heroin from Guatemala to the United
States. While his co-conspirators bought the heroin in Guatemala
and sold it in this country, Rodas acted as a courier. In
Guatemala, he would swallow heroin wrapped in plastic, which he
would excrete after traveling to Rhode Island. He ran this gamut
six times.
The Government’s charges against him on account of drug
trafficking included conspiracy to distribute heroin. At trial,
the Government provided evidence gained from 133 intercepted phone
calls and extensive surveillance, and it introduced seized heroin
worth over $100,000 and supplies for processing it. The jury
convicted Rodas on all counts, and the district court sentenced him
to 121 months’ incarceration. 28 U.S.C. § 1291 provides
jurisdiction over this timely appeal, comprising four arguments.
-2-
II
A
Rodas contends that introducing the incriminating
wiretapped telephone calls against him violated the Sixth
Amendment’s Confrontation Clause. He argues that the recordings
contained “testimonial” hearsay, which may not be admitted unless
the defendant had the opportunity to cross-examine the absent
declarant. The claim is meritless.
To begin with, Rodas did not preserve this issue in the
district court. He says that he did so by referring to the
Confrontation Clause during a colloquy on his motion for severance
and by moving to use some selections from the recorded phone calls
in the defense case. But in neither instance did Rodas squarely
(or tangentially) raise the constitutional issue he now presents,
nor did he ever object to any failure by the district court to make
a decision rejecting his Sixth Amendment claim. Our review,
therefore, is only for plain error and goes no further than the
first showing that a defendant must make: that an error occurred.
See United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001).
“In all criminal prosecutions, the accused shall enjoy
the right . . . to be confronted with the witnesses against him.”
U.S. CONST. amend. VI. Crawford v. Washington held that the
confrontation right guaranteed by the Sixth Amendment bars
admission of “testimonial statements of [a witness] absent from
-3-
trial,” unless the defendant has had the opportunity to cross-
examine the person quoted. 541 U.S. 36, 59 (2004). Thus, “the
threshold question in every case is whether the challenged
statement is testimonial.” United States v. Figueroa-Cartagena,
612 F.3d 69, 85 (1st Cir. 2010).
The statements admitted against Rodas were not. We have
recently held that “coconspirator statements . . . are, by their
nature, not testimonial.” United States v. Ciresi, 697 F.3d 19, 31
(1st Cir. 2012); see also United States v. Rivera-Donate, 682 F.3d
120, 132 n. 11 (1st Cir. 2012) (“[S]tatements made during and in
furtherance of a conspiracy are not testimonial . . . .”). And
because the recorded calls unambiguously contain statements made by
Rodas’s co-conspirators in furtherance of the conspiracy (and Rodas
has not come close to carrying his burden to show otherwise), his
Confrontation Clause argument is foreclosed.
The conspiracy is also one reason that Rodas fails in his
related claim that the admission of the calls violated Bruton v.
United States, 391 U.S. 123 (1968), in which the Supreme Court held
that “‘powerfully incriminating extrajudicial statements of a
codefendant’—those naming another defendant” can be “so prejudicial
that limiting instructions cannot work.” Gray v. Maryland, 523
U.S. 185, 192 (1998) (quoting Bruton, 391 U.S. at 135). Bruton
self-evidently has little to do with this case, and even when
Bruton might otherwise apply, it “does not bar the use of a co-
-4-
conspirator statement made in furtherance of the conspiracy.”
United States v. De La Paz-Rentas, 613 F.3d 18, 29 (1st Cir. 2010).
There was no error, plain or otherwise.
B
Assuming that admission of the phone transcripts was
constitutional, Rodas argues that they should nonetheless have been
excluded under Federal Rule of Evidence 801(d)(2)(E) because there
was inadequate evidence of his involvement in the conspiracy. Our
review is for abuse of discretion, and we find none. See United
States v. Vázquez-Botet, 532 F.3d 37, 65 (1st Cir. 2008).
In assessing whether hearsay is admissible as a co-
conspirator statement under Rule 801(d)(2)(E), the district court
must make four findings: “(1) a conspiracy existed; (2) the
defendant was a member of the conspiracy; (3) the declarant was
also a member of the conspiracy; and (4) the declarant’s statement
was made in furtherance of the conspiracy.” United States v. Díaz,
670 F.3d 332, 348 (1st Cir. 2012); accord United States v.
Petrozziello, 548 F.2d 20, 23 (1st Cir. 1977). The government must
also supply evidence of a defendant’s membership that is extrinsic
to the communications admissible because of the conspiracy itself.
Díaz, 670 F.3d at 348. Here, the district court found “the
Government has met its burden sufficient to satisfy the
Petrozziello requirements, including [presentation of] evidence
that is outside the phone calls themselves so that these phone
-5-
calls can be fully admitted as statements of co-conspirators.”
J.A. 4:257.
Rodas says that the district court’s finding that Rodas
was a member of the conspiracy ignored a lack of the essential
extrinsic corroboration, but the record more than sufficed. The
Government presented evidence that Rodas was photographed with his
co-conspirators at 48 Grant Street in Cranston, Rhode Island,
outside the house where the heroin was seized, that he made six
trips from Guatemala to Rhode Island, and that the timing of
Rodas’s trips to Guatemala corresponded with the actions of the
others in preparing for the arrival of a new supply of heroin.
There was evidence that after his plane reached the United States
on the first leg of the trip to Rhode Island, he would call a co-
conspirator, who would relay the message that he had “crossed the
line” to the others, J.A. 1:320-21, 444-45; shortly thereafter, he
would meet the other co-conspirators at the Grant Street apartment;
and soon after that they would resume selling the drug. We could
go on, but we need not under the deferential standard of review.
Admitting the calls was not an abuse of discretion.
C
Rodas next claims that the district court erroneously
denied his motion to sever his trial from that of his co-
conspirators. Our review is for abuse of discretion, see United
-6-
States v. Tiem Trinh, 665 F.3d 1, 17 (1st Cir. 2011), and again
there was none.
“If the district court decides not to sever [a] trial,
the defendant bears the burden of making a strong showing that
prejudice resulted from the denial of severance, and prejudice in
this context ‘means more than just a better chance of acquittal at
a separate trial.’” United States v. DeCologero, 530 F.3d 36, 52
(1st Cir. 2008) (quoting United States v. Boylan, 898 F.2d 230, 246
(1st Cir. 1990)). Severance is only warranted on showing “a
serious risk that a joint trial would compromise a specific trial
right of one of the defendants, or prevent the jury from making a
reliable judgment about guilt or innocence.” Zafiro v. United
States, 506 U.S. 534, 539 (1993).
Rodas relies on spillover prejudice he supposedly
suffered from the recorded calls, which he argues were only
admissible against his co-defendants, as well as from the admission
of 66 heroin pellets seized from the Figueroa residence. He claims
further prejudicial spillover from evidence of cocaine discovered
in Ervin Figueroa’s car and from the records of calls related to
Ervin Figeuroa’s money laundering charges. In sum, he argues that
this evidence “prevent[ed] the jury from making a reliable judgment
about guilt or innocence.” Id.The short answer to these arguments is the jury’s
supportable finding that he was a conspirator with the others,
-7-
which renders the spillover claims inapposite. As explained
before, the calls were properly admitted against Rodas, so there
was no spillover prejudice. And as for the balance of the evidence
Rodas cites, we have held that “the nature of proving a conspiracy
charge is that ‘virtually all the evidence relating to the other
conspirators [is] also directly relevant to, and, therefore,
independently admissible in, the prosecution’s case against’ the
defendant requesting severance.” United States v. Saunders, 553
F.3d 81, 85 (1st Cir. 2009) (quoting United States v.
Flores–Rivera, 56 F.3d 319, 325-26 (1st Cir. 1995)). But even if
we were to assume some of the evidence was not admissible against
Rodas, it was dwarfed by what did properly count against him and
would have been admissible in a solo trial. And any possible
prejudice was cured by the district court’s careful limiting
instruction that the jury consider the charges against each
defendant individually and require proof of his membership in the
conspiracy by “evidence of the Defendant’s own words or actions.”
J.A. 4:284.
D
Finally, Rodas joins the arguments of his co-
conspirators, Ervin and Elio Figueroa, that the wiretap evidence
should have been suppressed on the statutory ground that the use of
a wiretap was not necessary. For reasons explained in our opinion
in Figueroa, this position is not well taken. See Figueroa, 2013
-8-
WL 388110, at *1 (finding that the government’s submissions
“staunchly support a finding that other, less intrusive
investigative means could not reasonably have been expected to
achieve the goals of the investigation”).
III
We affirm the judgment of the district court.
It is so ordered.
-9-