United States v. Laureano-Perez , 797 F.3d 45 ( 2015 )

United States Court of Appeals
For the First Circuit
Nos. 13-2224
13-2276
13-2284
UNITED STATES OF AMERICA,
Appellee,
v.
JUAN M. LAUREANO-PÉREZ,
JEFFREY JOHN CUMMINGS-ÁVILA, and
CHRISTOPHER L. LAUREANO-PÉREZ,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Torruella, Lynch, and Barron,
Circuit Judges.
Lydia Lizarríbar-Masini, for appellant Juan M. Laureano-Pérez.
Karen A. Pickett, with whom Pickett Law Offices, P.C. was on
brief, for appellant Jeffrey John Cummings-Ávila.
Jeremy Gutman, with whom Todd M. Merer, were on brief, for
appellant Christopher L. Laureano-Pérez.
Sonja M. Ralston, Attorney, Appellate Section, Criminal
Division, U.S. Department of Justice, with whom Leslie R. Caldwell,
Assistant Attorney General, Sung-Hee Suh, Deputy Assistant Attorney
General, Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, Appellate
Chief, were on brief, for appellee.
July 30, 2015
TORRUELLA, Circuit Judge. Defendants Juan Laureano-Pérez
("Juan"), Jeffrey Cummings-Ávila ("Cummings"), and Christopher
Laureano-Pérez ("Christopher")1 (collectively, "Defendants") were
convicted of various narcotics possession, firearm, and conspiracy
charges arising out of their participation in an illicit drug
organization. All three appeal their convictions, alleging a host
of errors during the pretrial and trial phases of the proceedings;
Cummings and Christopher also challenge their sentences. For the
reasons explained below, we affirm all of the convictions, as well
as Cummings's sentence. However, we vacate Christopher's sentence
and remand for re-sentencing.
I. Background
We begin with a general overview of the facts and prior
proceedings, reserving additional factual and procedural details
for the relevant discussions below. For present purposes, it is
enough to know that Defendants were members of a large drug
organization operating in the Residencial Villas de Monterrey
public housing project in Bayamón, Puerto Rico (the "Housing
Project") which sold a wide array of narcotics, including heroin,
cocaine base ("crack" cocaine), powder cocaine, and marijuana.
Additionally, Defendants had different roles in the conspiracy.
1
Because Juan Laureano-Pérez and Christopher Laureano-Pérez are
brothers with the same last name, we refer to them by their first
names in order to distinguish them. We mean no disrespect in doing
so.
-2-
Christopher was the leader of the organization. Known as both
"Negro" and "the boss," he owned the majority of the drugs sold in
the Housing Project, and, wanting the organization's pushers and
runners to be armed, he also supplied the organization with
weapons. Juan, meanwhile, was Christopher's brother and known as
"McGyver." Juan's role was an enforcer. Finally, Cummings, or
"Pitillo," was an enforcer as well, though he would also deliver
drugs on occasion. Both Juan and Cummings were known to carry .40
caliber pistols.
Cummings was initially indicted on May 30, 2012, and was
charged with: possession with intent to distribute heroin, cocaine
base ("crack" cocaine), and cocaine, each in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(c), 860 (Counts One through Three,
respectively); possession with intent to distribute marijuana, in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(D), 860 (Count Four);
illegal possession of a machinegun, in violation of 18 U.S.C.
§§ 922(o), 924(a)(2) (Count Five); and possession of firearms in
furtherance of a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c)(1)(A)(i), (B)(ii) (Count Six). Six months later, on
November 28, 2012, a superseding indictment was returned. This
superseding indictment retained the initial six charges from the
May indictment but also added two more: conspiracy to possess with
intent to distribute controlled substances in a protected location,
in violation of 21 U.S.C. §§ 841(a)(1), 846, 860 (Count Seven), and
-3-
conspiracy to possess firearms in furtherance of a drug trafficking
conspiracy, in violation of 18 U.S.C. § 924(c)(1), (o) (Count
Nine). It also brought charges against Christopher, Juan, and
forty-one other co-conspirators.2 Christopher and Juan were both
charged with the two conspiracy counts (Counts Seven and Nine),
while Juan was also charged with possession of a firearm in
furtherance of a drug conspiracy, in violation of 18 U.S.C.
§ 924(c)(1)(A)(i), (B)(ii) (Count Eight).
Trial began on June 5, 2013, and after eight days of
trial, Defendants were convicted on all counts. Juan and
Christopher were subsequently sentenced to life imprisonment, while
Cummings was sentenced to 480 months. These timely appeals
followed.
II. Pre-Trial Issues
Only Cummings raises pre-trial issues, and he does so
both through his attorney and through a supplemental pro se filing.
We address each in turn.
A. The Disqualification of Cummings's Counsel
Cummings first argues that the district court violated
his constitutional right to counsel both when it ordered the
disqualification of his attorney, Jorge Armenteros-Chervoni
("Armenteros"), due to a conflict of interest and when it later
2
None of these other co-conspirators went to trial with
Defendants.
-4-
refused to re-appoint Armenteros despite Cummings's attempt to
waive the conflict. "We review decisions to disqualify an attorney
for conflict of interest for abuse of discretion." United States
v. Lanoue, 137 F.3d 656, 663 (1st Cir. 1998). Here, we find no
such abuse.
1. Relevant Facts
On June 5, 2012, the district court granted Cummings's
motion to be represented by Armenteros instead of a court-appointed
attorney from the Office of the Federal Defender. A month later,
the government became concerned over the source of Armenteros's
attorney fees, so it filed a motion asking the court to determine:
(1) the source of Armenteros's attorney fees; (2) whether
Armenteros was retained or paid by an individual other than
Cummings; (3) whether there was a conflict of interest; and (4) if
there was a conflict, whether Cummings was waiving the conflict and
whether the district court would accept the waiver. At a status
conference on July 26, 2012, the district court set a briefing
schedule and hearing date for the issue.
Though the government never filed its formal motion, the
district court held the hearing on August 14. At the hearing,
Armenteros objected, arguing that the hearing was "premature . . .
because I don't know what is the issue or what is the intent." The
district court disagreed, stating that the parties were there "to
figure out the issue." The government then informed the court that
-5-
it had met with Armenteros and that the government had "showed him
recordings of his defendant, which proved that . . . Attorney
Armenteros [] was retained by another person who is not the
defendant in this case." The government added that Armenteros "did
not deny" that he was being paid by another person. In response to
this proffer, the district court asked Armenteros about the source
of his fees, but Armenteros refused to answer. Instead, Armenteros
responded:
[W]ith all due respect we're going to claim a
due process right now, Your Honor, because I
don't think that the hearing can come to find
out what was going on. I think the prosecutor
must make a claim, and we must respond to
it. . . . I'm telling you that I am not clear
what is the claim to which I have to respond
. . . .
The district court once again explained that the claim
was that Cummings was not paying his own attorney fees but rather
that they were coming from a third party. To this, Armenteros
replied that "that's not the information that I have been given."
He went on to explain that he had received a $5,000 initial payment
and that his relationship with Cummings "date[d] back to another
case" in which he defended Cummings and was successful in having
the case dismissed. Armenteros conceded that he had heard one of
the recordings involving Cummings but nevertheless maintained that
"the only person that I talked to is [Cummings] who told me, go and
look for some money, okay, in order to get my fees."
-6-
At this point, the government interjected, explaining
that it was "trying to protect . . . the right of the defendant"
because it would create a "clear conflict of interest" if the
person paying Armenteros's fees were someone who the government
might require Cummings to testify against should he enter a plea.
The district court agreed, noting to Armenteros that
[i]f it's true that there is a possibility
that a third party is paying for your client's
defense, and your client is in a situation
whereby he's facing a 30-year minimum, the
Government is not going to offer any plea
bargaining to him, it is entirely possible
that the purpose, that the purpose of somebody
else paying for the defense is to keep him
shut.
Armenteros once again objected, arguing that he "underst[oo]d that
those funds came from the defendant" and that the government's
position "presupposes . . . that that [third] person told me to go
defend this person." Armenteros argued that "that has never been
the case" and "[i]n fact, there are a million phone calls of
Mr. Cummings'[s] wife asking me to go and visit him once after he's
arrested." Armenteros emphasized that he could recognize a
conflict of interest and was positive that no conflict existed.
The court then proceeded to hear the two telephone
recordings of Cummings with counsel for both the government and
Cummings present. In the first, Cummings spoke to Ana Saurí,
Cummings's girlfriend's mother, and told her that his lawyer had
come to visit him and that "they paid him the money." Saurí added
-7-
that she spoke with Armenteros and asked him to get someone she
called "Negrito" out of jail, to which Armenteros responded, "Don't
mention that name." Cummings also informed Saurí that Armenteros
had told him that if "they work with me on the money and stuff
. . . what I ask them in order to help you, then I will come on
Monday." Later on in the call, Christopher, who had not yet been
indicted, took the phone from Saurí and spoke with Cummings.
Cummings thanked Christopher "a million for the attorney thing" and
added that Armenteros had told him that "[t]hey gave [Armenteros]
10" and that Cummings could give Armenteros "the other 10 . . .
when you get out." Christopher also stated that he "was going to
see if . . . [he] could send something with the attorney, but it
wasn't possible."
The second recording involved Cummings, Saurí, her
daughter Ashley, and Christopher. In this call, Cummings asked
Christopher, "what did the lawyerinski say to you?" and Christopher
responded that "[h]e hasn't showed up. I have been calling him and
he hasn't showed up . . . . [H]e came to talk about money, but he
hasn't returned." Cummings once again thanked Christopher for the
money, to which Christopher responded that "[t]his is not about the
money, this is about being united." At the end of the call,
Cummings asked Christopher to put pressure on Armenteros because he
"does not come here to visit me," and Christopher responded that he
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will "try[] to call and contact him, but he doesn't want to talk to
me . . . . But, everything that he tells me I will tell you."
Once the recordings were finished, the district court
asked Armenteros if Cummings was "willing to answer some questions
from" the court, but Armenteros declined the invitation because it
was a "very dubious situation." The court emphasized that
in order for me to make a decision, a balanced
decision, I have to ask him some questions to
figure out, you know, first of all, who is the
person that is paying the fees, what is the
relationship with him, and advise him of the
potential conflicts, et cetera. And he has to
make a decision, and then I have to make my
own decision. But we have to have an exchange
obviously.
Still, Armenteros declined. He informed the court that Cummings
was "more than willing to listen to whatever the Court has to say.
However, he's not in a position at this point to give any statement
to the Court . . . ." The government objected to this refusal,
arguing "[t]hat's exactly the conflict of interest. The attorney
is there, and I don't know if the client wants to talk to the Court
or if the attorney is not letting the client."
The district court agreed:
If it's clear to me that a third party is
paying for the fees, then I have an obligation
to have some sort of dialogue, if you will,
that has to be through questions and answers
with the defendant, and advise him, get
information from him about this situation, and
advise him of the potential risks and
conflicts. But I am in a situation whereby
the defendant doesn't want to deal with that
issue with me. So I'm getting no information
-9-
from him . . . . [It] is quite clear, that
[Christopher][3] is paying for the fees, and
that [Christopher] has control over a bunch of
things that pertain to the defense obviously.
. . . .
. . . All I'm saying is that it's quite clear,
quite clear from those tapes that
[Christopher], who is the purported leader,
has advanced the funds, retained you to deal
with Cummings, to represent Cummings, and that
Cummings is eternally grateful to
[Christopher] for having done that. Not only
that, [Christopher] and Cummings are going to
decide basically what the strategy's going to
be together, and the strategy is going to be
such that [Christopher] will not be
prejudiced. . . .
. . . .
. . . You have been retained and paid by a
third party. . . . [I]t goes beyond that,
because one thing is the act of a charity of a
third party to pay a defense of somebody dear
to him. Another thing is a situation whereby
the defense is being paid by a third party but
at the same time there is intervention of that
third party and the defendant as to how
they're going to deal with the issue.
Basically, not only to defend Cummings, but
also to make certain that [Christopher]
doesn't get involved.
Seeing how the court was leaning, Armenteros asked the district
court to delay making a ruling, but the court refused, stating that
"[i]t's made." The district court proceeded to explain its ruling
as follows:
3
Throughout the hearing, the district court mistakenly referred
to Christopher as Christian.
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[T]he reasons are the ones that I've stated:
No cooperation on defendant's side; obvious
conflict of interest; failure on the
defendant's side, who has a burden, too, to
put me in a position to make a balancing, a
balancing that is going to be very difficult
to make even if he tells me something, because
of the content of the tapes.
Therefore, I am once again stating that
there is a potential material, huge conflict
of interest here that will not allow you to be
his attorney in this case.
Three months later, on November 28, 2012, Cummings filed
a motion requesting that Armenteros be re-appointed as his
attorney. In the motion, Cummings stated that
Mr. Armenteros has been my attorney since
February 18, 2010 . . . . I feel that he has
allways [sic] and will continue to have my
complete confidence as my attorney.
. . . .
I do not believe that Mr. Armenteros
has a conflict of interest. But in any case
if it were true, I am willing to waive said
conflict.
The motion was denied on January 28, 2013.
2. The District Court Did Not Abuse Its Discretion
The Sixth Amendment guarantees the right of an individual
accused in a criminal prosecution to "have the Assistance of
Counsel for his defence," U.S. Const. amend. VI, which necessarily
includes "the right to have an attorney of one's own choosing."
Lanoue, 137 F.3d at 663. This right, however, is not absolute.
Id. To the contrary, because the "essential aim" of the Sixth
-11-
Amendment "is to guarantee an effective advocate for each criminal
defendant," Wheat v. United States, 486 U.S. 153, 159 (1988),
"[o]ne important limitation on th[is] right is the trial court's
interest in ensuring that criminal trials are conducted within
ethical and professional standards." In re Grand Jury Proceedings,
859 F.2d 1021, 1023 (1st Cir. 1998).
To that end, "[i]f there is a realistic potential for
conflict of interest," a district court's "concern may override a
defendant's Sixth Amendment right freely to choose his lawyer."
Id. And while a defendant can often waive the conflict, this, too,
is not absolute. See, e.g., Wheat, 486 U.S. at 158-59; Lanoue, 137
F.3d at 663. A district court may decline to accept a defendant's
waiver "not only in those rare cases where an actual conflict may
be demonstrated before trial, but [also] in the more common cases
where a potential for conflict exists which may or may not burgeon
into an actual conflict as the trial progresses." In re Grand Jury
Proceedings, 859 F.2d at 1023-24 (alteration in original) (emphasis
omitted) (quoting Wheat, 486 U.S. at 163) (internal quotation marks
omitted). Still, there must be a "showing of a serious potential
for conflict" to overcome the presumption in favor of a defendant's
selection of counsel. Id. at 1024.
One such serious potential for conflict occurs when "a
criminal defendant is represented by a lawyer hired and paid by a
third party, particularly when the third party is the operator of
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the alleged criminal enterprise." Wood v. Georgia, 450 U.S. 261,
268-69 (1981); see also United States v. Urutyan, 564 F.3d 679 (4th
Cir. 2009). The conflict arises because a lawyer could be inclined
to "prevent his client from obtaining leniency by preventing the
client from offering testimony against his former employer or from
taking other actions contrary to the employer's interest." Wood,
450 U.S. at 269.
That was the precise situation facing the district court.
The government alerted the district court that it was concerned
Armenteros was being paid by Christopher -- the leader of the drug
organization connected to Cummings's arrest -- and wanted the court
to inquire further. In response, the district court held a hearing
in which it heard two recordings unequivocally showing that
Armenteros was being paid by somebody other than Cummings, most
likely Christopher, and in which it learned that any plea agreement
offered by the government would necessarily entail cooperation
against others, including Christopher.4 Given this evidence, the
potential for a conflict of interest was obvious. See Lanoue, 137
4
We reject Cummings's argument that his due process rights were
violated when the district court held the hearing despite the
government's failure to file a formal motion as ordered by the
district court. The government made its concerns clear both
through its initial informative motion to the court and through its
arguments at the status conference. Moreover, the government met
with Armenteros and "previewed" one of the recorded phone
conversations. Any allegation that Armenteros was faced with an
unfair surprise and was unable to prepare for the hearing,
therefore, is disingenuous at best.
-13-
F.3d at 664 ("The district court in this case did not make the
decision to disqualify summarily. It held a hearing and allowed
each side to present its arguments for and against
disqualification."); see also Urutyan, 564 F.3d at 687 (finding no
abuse of discretion in district court's disqualification of
attorney due to a conflict of interest where district court heard
a telephone recording between defendant and co-defendant discussing
how a member of the alleged conspiracy could provide defendant with
an attorney). Add to this the fact that Armenteros was
uncooperative throughout the hearing and prohibited Cummings from
partaking in a colloquy with the court, and the district court's
conclusion that there was a likelihood of a conflict of interest
was only further supported.5 Cf. United States v. Diozzi, 807 F.2d
10, 13 (1st Cir. 1986) (finding no conflict of interest where the
attorneys were cooperative). Accordingly, we find no abuse of
discretion in the district court's decision to disqualify
Armenteros.
5
That Cummings later seemed willing to engage in a discussion
with the district court through the filing of a motion to waive any
conflict does not alter our analysis. This waiver occurred months
after the initial hearing, and after Christopher had been indicted
as a co-defendant. Christopher's indictment only increased the
chances of a conflict since Armenteros would be representing
Cummings while being paid not by some third party but by a co-
defendant with different interests. As such, the district court's
decision to reject Cummings's waiver motion was also not an abuse
of discretion. See Wheat, 486 U.S. at 163; In re Grand Jury
Proceedings, 859 F.2d at 1023.
-14-
B. The Speedy Trial Act
Cummings next argues that due to a violation of the
Speedy Trial Act, 18 U.S.C. § 3161, the district court should have
dismissed Cummings's initial indictment with prejudice, thus
barring the inclusion of those charges in the superseding
indictment. We disagree with Cummings that the Speedy Trial Act
was violated.
1. Standard of Review
We review the district court's Speedy Trial Act
determination de novo. United States v. Barnes, 159 F.3d 4, 9-10
(1st Cir. 1998) ("Barnes I"). In doing so, we "start from scratch
in the computation of excludable and nonexcludable time under the
Act" by first "do[ing] the basic mathematics and determin[ing] the
aggregate time elapsed awaiting trial," and then "ascertain[ing]
how many days should be excluded from the total time." Id. at 10
(internal quotation marks omitted). However, we do not go hunting
for nonexcludable time; exclusions of time not specifically
challenged in the district court are waived on appeal. United
States v. Gates, 709 F.3d 58, 67-68 (1st Cir. 2013).
2. The Speedy Trial Act Was Not Violated
The Speedy Trial Act "commands that a defendant be tried
within 70 days of the latest of either the filing of an indictment
or information, or the first appearance before a judge or
magistrate." Barnes I, 159 F.3d at 9 (internal quotation marks and
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citations omitted). Certain periods of time, however, are excluded
from this seventy-day calculation. These include:
[a]ny period of delay resulting from other
proceedings concerning the defendant,
including but not limited to --
. . . .
(F) delay resulting from any pretrial motion,
from the filing of the motion through the
conclusion of the hearing on, or other prompt
disposition of, such motion;
. . . .
(J) delay reasonably attributable to any
period, not to exceed thirty days, during
which any proceeding concerning the defendant
is actually under advisement by the court.
. . . .
(8)(A) Any period of delay resulting from a
continuance granted by any judge on his own
motion or at the request of the defendant or
his counsel or at the request of the attorney
for the Government, if the judge granted such
continuance on the basis of his findings that
the ends of justice served by taking such
action outweigh the best interest of the
public and the defendant in a speedy trial.
Id. (alterations in original) (quoting 18 U.S.C. § 3161(h)).
Here, the parties agree that we begin counting on
June 15, 2012 -- the date of Cummings's arraignment6 -- and that we
6
It is unclear to us why the parties begin counting on June 15,
2012, the date of Cummings's arraignment. The Speedy Trial Act
instructs that we begin counting on the later of a defendant's
first appearance or indictment; it says nothing about a defendant's
arraignment. See 18 U.S.C. § 3161(c)(1); Barnes I, 159 F.3d at 9.
Cummings was indicted on May 30, 2012, and his first appearance
occurred on May 2, 2012. Thus, the proper starting date should
-16-
stop the clock on November 28, 2012 -- the date the superseding
indictment adding Cummings's co-defendants was filed. See United
States v. Barnes, 251 F.3d 251, 258 (1st Cir. 2001) ("Barnes II")
(holding that the Speedy Trial Act clock resets upon the return of
a superseding indictment adding new defendants in order to
"synchronize[]" the cases and avoid piecemeal prosecutions and
duplicative proceedings). This is a total of 167 days. We find
the following days to be excludable under the Act:
Date(s) Number of Reason
Days
June 15, 2012 1 Arraignment -- a "proceeding[]
concerning the defendant." Id.
§ 3161(h)(1).
June 20, 2012 - 6 Motion for Rule 404(b)
June 25, 2012 disclosures -- a "pretrial
motion, from the filing of the
motion through . . .
disposition." Id.
§ 3161(h)(1)(D).
June 25, 2012 - 27 Motion for continuance. Id.
June 27, 2012 § 3161(h)(7).
July 3, 2012 - July 7 Continuance.8 Id.
9, 2012
have been May 30. However, because Cummings never argued for this
starting point, any nonexcludable time between May 30, 2012, and
June 15, 2012, is waived. See Gates, 709 F.3d at 67-68.
7
Three days elapsed from the filing of the motion on June 25
until its resolution on June 27. However, we only include two
excludable days because June 25 was already excluded as part of the
404(b) motion.
8
Cummings argues that these seven days should not be excluded
because the district court never explicitly found that "the ends of
justice served by taking such action outweigh the best interest of
the public and the defendant in a speedy trial" as required by the
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July 9, 2012 - 179 Motion for discovery -- a
July 26, 2012 "pretrial motion, from the
filing of the motion through
. . . disposition." Id.
§ 3161(h)(1)(D).
July 23, 2012 - 1910 Motion to disqualify counsel --
August 14, 2012 a "pretrial motion, from the
filing of the motion through
. . . disposition." Id.
August 21, 2012 1 Status conference -- a
"proceeding[] concerning the
defendant." Id. § 3161(h)(1).
September 7, 2012 1 Status conference -- a
"proceeding[] concerning the
defendant." Id.
September 8, 2012 - 13 Time between request for status
September 20, 2012 conference and holding of status
conference.11
Speedy Trial Act. See 18 U.S.C. § 3161(h)(7)(A). However, we have
held that a district court need not explicitly state its reasons
for granting a continuance nor make a "best interest" finding if it
is "'obvious and set forth in [the] motion for a continuance.'"
See United States v. Pringle, 751 F.2d 419, 432 (1st Cir. 1984)
(quoting United States v. Rush, 738 F.2d 497, 507 (1st Cir. 1984)).
Cummings's motion for a continuance was premised on Cummings's
counsel being out of the jurisdiction during the continued period.
This is considered a sufficient reason to exclude the time. See
id. at 432-33 (finding that delays resulting from defense counsel's
scheduling conflicts and defendant's travel outside the
jurisdiction were excludable).
9
This seventeen-day period excludes the July 9 overlap with the
continuance.
10
This nineteen-day period excludes the four-day overlap with
Cummings's discovery motion.
11
It is unclear to us why the parties exclude this time.
Cummings's request for an additional status conference does not
appear to fit under § 3161(h)(1)(D) as a "pretrial" motion, and
even if it did, the motion would have been disposed of as soon as
the court agreed to hold another conference, since the requested
conference itself cannot be fairly categorized as a hearing on the
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September 21, 2012 1 Status conference -- a
"proceeding[] concerning the
defendant." Id.
October 18, 2012 1 Status conference -- a
"proceeding[] concerning the
defendant." Id.
October 24, 2012 - 3 Motion by Cummings -- a
October 26, 2012 "pretrial motion, from the
filing of the motion through
. . . disposition." Id.
§ 3161(h)(1)(D).
October 30, 2012 - 17 Cummings pro se motion asserting
November 15, 2012 his right to a speedy trial -- a
"pretrial motion, from the
filing of the motion through
. . . disposition."12 Id.
motion. Similarly, we do not believe the time can be categorized
as an excludable continuance under § 3161(h)(7), since even if it
were considered a continuance, there are no findings -- either
explicit or obvious from the record -- that would qualify it as
excludable. Nevertheless, because Cummings never argues for its
nonexclusion, we exclude it. See Gates, 709 F.3d at 67-68.
12
This court has never formally ruled on whether pro se motions
are excludable under the Speedy Trial Act. Given that both parties
excluded the days in their respective calculations and the
exclusion of these days does not affect our calculation, we assume,
without deciding, that the days are excludable.
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November 8, 2012 - 1313 Government continuance.14 Id.
November 28, 2012 § 3161(h)(7).
Adding all of these days together, 102 days were
excludable. This leaves sixty-five nonexcludable days, five less
than the permitted seventy. Accordingly, the Act was not violated.
C. The Sufficiency of the Superseding Indictment
In his pro se brief, Cummings argues that the superseding
indictment was flawed in two key respects. First, he alleges that
because the § 922(o) charge (Count Five) failed to provide proper
notice of what the government considered a machinegun and what
statute made it illegal, his Fifth Amendment right to due process
was violated. Second, he claims that the superseding indictment's
reference to "crack" cocaine in Counts Two and Seven was
insufficient following the Supreme Court's 2011 decision in
DePierre v. United States, 131 S. Ct. 2225 (2011), which clarified
the meaning of "cocaine base." Cummings never raised these
13
This thirteen-day period excludes the eight-day overlap with
Cummings's pro se motion.
14
Cummings objects to the exclusion of these days because the
court never made explicit its findings and rationale for granting
the continuance. As we stated above, this is not necessary if the
reasons are obvious. Pringle, 751 F.2d at 432. The government
explains that the continuance was requested due to the impending
filing of the superseding indictment. Because a continuance in
this situation would allow all Defendants to be tried together and
to avoid piecemeal and repetitive proceedings, "the ends of justice
served by taking such action outweigh the best interests of the
defendant in a speedy trial," 18 U.S.C. § 3161(h)(7)(A), and thus
the days are properly excluded. See Barnes II, 251 F.3d at 256.
-20-
challenges in the district court, and his failure to do so
"constitutes a forfeiture, which confines appellate review to plain
error." United States v. Troy, 618 F.3d 27, 34 (1st Cir. 2010);
see also Fed. R. Crim. P. 12(b)(3)(B) (stating that challenges to
the sufficiency of an indictment must be raised prior to trial).
Plain error exists when: (1) an error occurred; (2) which was clear
or obvious; and both (3) affected the defendant's substantial
rights; and (4) seriously impaired the fairness, integrity, or
public reputation of judicial proceedings. Troy, 618 F.3d at 33.
We need not go past the first step, however, because neither
alleged error has any merit.
1. Count Five of the Superseding Indictment Is Not
Defective
"An indictment is legally sufficient if it 'first,
contains the elements of the offense charged and fairly informs a
defendant of the charge against which he must defend, and, second,
enables him to plead an acquittal or conviction in bar of future
prosecutions for the same offense.'" United States v. Berk, 652
F.3d 132, 137 (1st Cir. 2011) (quoting United States v. Cianci, 378
F.3d 71, 81 (1st Cir. 2004)).
Here, Count Five of the superseding indictment alleges
that
[o]n or about May 2nd, 2012, in the District
of Puerto Rico and within the jurisdiction of
this Court, Jeffrey Cummings-Ávila, the
defendant herein, did knowingly and unlawfully
possess, machineguns, to wit: (1) a Glock
-21-
pistol, Model 23, .40 caliber, serial number
on the body PDW-403 and another different
serial number ETE-057 on the side; (2) a Glock
pistol, model 23, .40 caliber, serial number
RYM722, both firearms modified to shoot
automatically more than one shot, without
manual reloading, by a single function of the
trigger. All in violation of Title 18, U.S.C.
Section 922(o) and 924(a)(2).
This description contains all of the elements of Section
922(o)(1),15 which provides that "it shall be unlawful for any
person to transfer or possess a machinegun," and it quotes verbatim
from 26 U.S.C. § 5845(b), which defines a machinegun as "any weapon
which shoots, is designed to shoot, or can be readily restored to
shoot, automatically more than one shot, without manual reloading,
by a single function of the trigger." It also describes the
specific machineguns at issue. As such, Cummings was fairly
informed of what he had to defend against, and the indictment was
therefore sufficient. See Berk, 652 F.3d at 137; United States v.
Just, 74 F.3d 902, 904 (8th Cir. 1996) (finding indictment for
possession of a machinegun sufficient where it only cited to
§ 922(o) and did not include language defining a machinegun).
That the superseding indictment only quotes the language
of § 5845(b) without citing to the statute directly does not alter
this conclusion.16 It is the language describing the elements that
15
Cummings makes no argument regarding § 924(a)(2).
16
We do note, however, that in an abundance of caution it would
be in the government's best interest to cite to all relevant
provisions, especially when directly quoting from those provisions.
-22-
puts a defendant on notice, not a simple citation to a statute.
Cf. United States v. Daniels, 973 F.2d 272, 275 (4th Cir. 1992)
("[T]he mere citation to the statute of which the defendant is
charged with violating is insufficient to cure the failure of the
indictment to charge each essential element of the offense because
the citation alone does not insure that the grand jury considered
and found each of these elements."). Moreover, while Cummings was
charged with violating § 922(o), this is merely a subsection of
§ 922. A full reading of § 922 directs the reader to § 5845 for
the meaning of a machinegun, see § 922(a)(4), (b)(4), and it is
hornbook statutory construction that "identical words used in
different parts of the same act are intended to have the same
meaning." Sorenson v. Sec'y of Treasury, 475 U.S. 851, 860
(1986)(internal quotation marks omitted); see also, e.g., United
States v. Ozuna-Cabrera, 663 F.3d 496, 499 (1st Cir. 2011).
Accordingly, we find no error with Count Five of the
superseding indictment.
2. Counts Two and Seven of the Superseding Indictment
Are Not Defective
In Counts Two and Seven of the superseding indictment,
the government charged Cummings with possession with intent to
distribute cocaine base and conspiracy to possess with intent to
distribute cocaine base (and other narcotics), respectively. In
Count Two, the superseding indictment states that Cummings "did
knowingly and intentionally possess with intent to distribute a
-23-
measurable amount of a mixture or substance containing a detectable
amount of cocaine base ('crack') . . . ." Count Seven, meanwhile,
states that forty-four conspirators, including Cummings, "did
knowingly and intentionally combine, conspire and agree with each
other . . . to possess with the intent to distribute . . . two-
hundred and eighty (280) grams or more of a mixture or substance
containing a detectable amount of cocaine base ('crack') . . . ."
According to Cummings, the inclusion of "crack" renders the
superseding indictment insufficient because DePierre
"decriminalize[d] certain individual's conduct . . . [which] would
have otherwise been aggravated violators."
Cummings, however, badly misreads DePierre. In DePierre,
the Supreme Court "h[e]ld that the term 'cocaine base' as used in
§ 841(b)(1) means not just 'crack cocaine,' but cocaine in its
chemically basic form." 131 S. Ct. at 2237. In other words, the
Supreme Court expanded the meaning of cocaine base to include other
forms of cocaine in addition to crack cocaine.17 Id. at 2231. It
in no way "decriminalized" crack cocaine as Cummings seems to
allege.
Counts Two and Seven of the superseding indictment charge
possession with the intent to distribute and conspiracy to possess
with the intent to distribute cocaine base. The parenthetical
17
These include freebase and coca paste. DePierre, 131 S. Ct. at
2231.
-24-
inclusion of "crack" simply specified which form of cocaine base
was at issue. There is nothing improper about this practice.18
III. Trial Issues
Defendants also present a number of alleged errors they
claim occurred during the trial itself. We address each in turn,
noting that unless otherwise stated, the issue was raised in some
form by all three Defendants.
A. The Admission of Certain Pieces of Evidence
Defendants claim that various pieces of evidence -- the
testimonies of Marco A. Díaz Narváez ("Díaz"), Carlos Rivas Serrano
("Rivas" or "Gordo"), and Officer Luis Vázquez Torres ("Officer
Vázquez"), and the two phone calls between Cummings and Christopher
-- were improperly admitted. As explained in more detail below,
all of the evidence was admissible.
1. Díaz
a. The Contested Testimony
Díaz was a member of the conspiracy who agreed to
cooperate with the government. According to Díaz, he was a seller
in the organization and would also store guns for Christopher.
After discussing his involvement, Díaz testified about three
18
Cummings makes a similar unpreserved argument regarding the jury
instructions for these counts, alleging that it was error to
instruct the jury on crack cocaine as opposed to cocaine base
because crack and cocaine base were no longer synonymous under
DePierre. For the same reasons discussed above, we reject this
argument.
-25-
specific instances. The first two involved "rounds" with Juan.
During these "rounds," Díaz -- driving Cummings's car -- would take
Juan to a specified location, find the person they were looking
for, beat the person up, put the person in the trunk of Cummings's
car, and then drive for a while before letting Díaz out and
continuing to drive onward with the victim in the trunk. Díaz
testified that he never knew in advance where they were going, who
they were looking for, or why they were looking for that person.
Rather, he just followed Juan's instructions, which were being
carried out on Christopher's behalf. Díaz added that Juan was
armed both times and that Christopher was the leader of the
conspiracy.
The third incident occurred one night in the Housing
Project. According to Díaz, he had been on duty selling drugs late
one night when he heard two shots. Shortly thereafter, Juan and
Christopher appeared and enlisted Díaz's help putting a young man
with a gunshot wound in his leg into a car. Díaz testified that he
was later told that Juan had shot the young man -- who was not from
the Housing Project -- twice at Christopher's behest.
b. This Testimony Was Properly Admitted
Defendants contend that this testimony was irrelevant and
thus should have been excluded. Because they made this objection
at trial, we review for abuse of discretion. United States v.
-26-
Richardson, 421 F.3d 17, 37 (1st Cir. 2005). Contrary to
Defendants' assertion, however, the testimony was relevant.
We reject Defendants' suggestion that Díaz's testimony
shows that the "rounds" were not part of the drug conspiracy.
Though Díaz did testify about the "rounds" in response to questions
from the prosecutor about actions "aside from the drugs," a review
of the transcript as a whole makes clear that the "rounds" were
related to the drug organization. Given this relationship, there
is little question that the testimony was relevant. See Fed. R.
Evid. 401 ("Evidence is relevant if: (a) it has any tendency to
make a fact more or less probable than it would be without the
evidence; and (b) the fact is of consequence in determining the
action."). The testimony helped establish a connection between
Defendants -- Juan, acting on Christopher's orders, used Cummings's
car -- and between Defendants and the drug conspiracy -- the
rounds, being conducted by Juan on Christopher's behalf, were in
connection to the drug organization. It also helped to prove at
least two allegations in the indictment -- that the roles of
Christopher and Juan were leader and enforcer, respectively, and
that the leaders of the organization would use force, violence, and
intimidation in order to protect the conspiracy and maintain
control. See United States v. Rivera Calderón, 578 F.3d 78, 95-96
(1st Cir. 2009) (holding that evidence of murders was relevant to
-27-
show the existence of a single, overarching drug conspiracy and to
prove the defendant's involvement in the conspiracy).
As a fallback position, Defendants contend that even if
the evidence was relevant, it should still have been excluded as
unfairly prejudicial under Rule 403 of the Federal Rules of
Evidence. Defendants never raised this objection below, and thus
we review for plain error. Id. at 95; see also United States v.
Ciresi, 697 F.3d 19, 26 (1st Cir. 2012). Under any standard,
however, this argument fails. Evidence is only excluded under Rule
403 "if its probative value is substantially outweighed by 'the
danger of unfair prejudice.'" United States v. Varoudakis, 233
F.3d 113, 121 (1st Cir. 2000) (quoting Fed. R. Evid. 403). And
"unfair prejudice" is often reserved for "evidence that invites the
jury to render a verdict on an improper emotional basis" or for
evidence that is "shocking or heinous" and "likely to inflame the
jury." Id. at 122 (internal quotation marks and citations
omitted). Díaz's testimony does none of these things, and thus its
admission was not unfairly prejudicial.
2. Rivas
a. The Contested Testimony
Like Díaz, Rivas was also a member of the conspiracy who
chose to cooperate with the government. Rivas's testimony focused
mostly on Christopher. First, Rivas described an incident where
Christopher had a "problem" because "some people . . . shot at his
-28-
car with his kids in it" while they were traveling near a bakery.
According to Rivas, in response to this attack, Christopher and
"Coquito" and "Monchi" -- two of the drug conspiracy's "triggermen"
-- went in search of the shooters. Rivas testified that he knew
all three were armed because "[h]e was always armed every time that
they would go out to solve a problem" and "they weren't going out
to the shopping mall to look for clothing. They were going out to
look for the enemy."
b. This Testimony Was Properly Admitted
Like with Díaz's testimony, Defendants allege that
Rivas's testimony is both irrelevant and unfairly prejudicial.
However, neither of these objections was raised below, so we review
for plain error.19 See Ciresi, 697 F.3d at 26. Once again, we find
no error. Rivas's testimony is relevant because it helps to
establish that Christopher was a leader of the organization -- he
was targeted shortly after another leader was murdered and it is
unlikely that a low-level member of the organization would be
targeted for assassination -- and that the drug organization
resorted to violence to protect its territory. Moreover, the fact
that Christopher and his men were armed provides proof of the
19
Christopher did object to Rivas's statement that the men were
armed and his subsequent explanation as to how he knew this, but
the objection was based on a different ground. See United States
v. Wallace, 461 F.3d 15, 35 n.11 (1st Cir. 2006) ("Because that
objection was on different grounds, however, we deem the
defendant's present argument of error, raised for the first time on
appeal, as unpreserved.").
-29-
conspiracy charged in Count Nine -- conspiracy to possess firearms
in furtherance of a drug trafficking crime. See Fed. R. Evid. 401;
Rivera Calderón, 578 F.3d at 95-96. And because the testimony was
neither shocking, heinous, nor likely to inflame the jury, it need
not have been excluded under Rule 403. See Varoudakis, 233 F.3d at
122.
3. Officer Vázquez
a. The Contested Testimony20
During Officer Vázquez's testimony, a video was played
showing Christopher and others attending the funeral of Miguel Ruiz
Sánchez ("Miguel") at the Housing Project. Officer Vázquez
commented on the video, explaining that "[a]ccording to [his]
investigation, Miguel Ruiz Sánchez was one of the leaders" of the
conspiracy and that the reason some of the individuals were seen in
the video picking up shell casings from the basketball court at the
Housing Project was because "according to [their] investigation,
the previous day they were having a wake . . . for Miguel Ruiz
Sánchez inside the project." The officer then proceeded to
identify one of the individuals in the video as Antero Rivero
Marrero ("Rivero").
On cross-examination, Officer Vázquez testified that
according to his investigation, Rivero "was serving as an escort"
20
Defendants also challenge parts of Officer Vázquez's testimony
as overview testimony. That is addressed in Part III.B.1, infra.
-30-
for Christopher because Christopher "feared for his life, and . . .
was hot in the street." On re-direct examination, the government
asked Officer Vázquez about Rivero's escort services. Officer
Vázquez testified that Rivero had a fictitious license to escort
dignitaries and agreed with the statement that no license would
permit possession of the two AK-47 rifles that were seized from
Rivero because it is not legal "to carry firearms to protect a drug
trafficker."
b. This Testimony Was Properly Admitted
Defendants once again challenge the relevance and undue
prejudice of this testimony. Once again, our review is for plain
error, and, once again, their challenge fails. See Ciresi, 697
F.3d at 26. Both pieces of evidence -- the picking up of the shell
casings and the questioning into Rivero's escort services -- are
relevant.
Regarding the shell casings, the evidence is relevant for
two reasons. First, the testimony connects Christopher with
Miguel, who was known to be a leader of the drug organization. By
establishing that Christopher was sufficiently connected to Miguel
to attend his funeral, the evidence supported the conclusion that
the two were part of the same organization. Second, the collection
of the shell casings helps support the allegation that the
organization used weapons (thus providing evidence of the gun-
related conspiracy charge) and that the conspirators were familiar
-31-
with the firearms. See Fed. R. Evid. 401; Rivera Calderón, 578
F.3d at 95-96. Once again, nothing about this testimony was
unfairly prejudicial. See Varoudakis, 233 F.3d at 122.
As to the testimony regarding Rivero, the majority of
this testimony was relevant for much the same reason as the
testimonies already discussed: it helped establish Christopher's
role as a leader in the organization since a low-level conspirator
would likely not need the level of protection that Christopher
needed. And though the district court could have in its discretion
applied Rule 403 to exclude Officer Vázquez's agreement that it was
not legal for Rivero to "carry firearms to protect a drug
trafficker," its failure to do so does not constitute plain error,
especially given our "great deference" to a district court's 403
rulings. See id. In any event, this one comment was harmless
given all of the other evidence presented. See United States v.
Landrón-Class, 696 F.3d 62, 68 (1st Cir. 2012).
4. The Recorded Phone Calls
a. The Contested Portions of the Calls
As mentioned above while discussing the disqualification
of Cummings's counsel, two conversations involving Cummings were
recorded while he was detained at the Metropolitan Detention Center
("MDC"), Guaynabo. In both calls -- one on June 5, 2012, and one
on July 14, 2012 -- Cummings spoke with Christopher, who had not
yet been arrested. Besides discussing the payments to Cummings's
-32-
counsel, the two also discussed whether Juan was looking for
"Gordo" -- recall, this is Rivas's alias. Cummings informed
Christopher that Juan was working in the kitchen at MDC, Guaynabo
and had been looking for Rivas but was unable to find him. In
addition, Cummings and Christopher spoke about the attack on
Christopher and his family outside the bakery, specifically
focusing on the fact that other members of their organization had
advance knowledge of the attack and that there would be retaliation
against those who shifted loyalties.
b. The Recordings Were Properly Admitted
Juan objects to the admission of the two phone calls on
hearsay grounds. Because he failed to object when the statements
were first admitted and at the close of evidence, we review for
plain error.21 See Ciresi, 697 F.3d at 25-26 (holding that to
preserve a challenge to the admission of co-conspirator statements,
"a defendant must object on hearsay grounds when his or her
coconspirator's statement is provisionally admitted and must renew
the objection at the close of evidence"). We reject this
challenge, as the calls were properly admitted as co-conspirator
statements.
21
Juan did initially object on Confrontation Clause grounds, but
does not renew that objection on appeal. See Wallace, 461 F.3d at
35 n.11. Even if he had, that argument would fail as well, as co-
conspirator statements are "by their nature, not testimonial," and
thus not subject to the Confrontation Clause. Ciresi, 697 F.3d at
31; see also Bourjaily v. United States, 483 U.S. 171, 182 (1987).
-33-
Though hearsay evidence is generally inadmissible in
criminal trials, Rule 801(d)(2)(E) of the Federal Rules of Evidence
"provides that a statement made by a defendant's coconspirator
'during the course of and in furtherance of the conspiracy' may be
introduced as the nonhearsay admission of a party opponent." Id.
(quoting Fed. R. Evid. 801(d)(2)(E)). For a statement to qualify,
the declarant and the defendant must be members of a conspiracy
when the statement was made and the statement must have been made
in furtherance of the conspiracy. Id.
The calls here meet both requirements. As to the first,
the government provided significant evidence that Juan, Cummings,
and Christopher were all members of the same drug organization --
and thus the same conspiracy -- and there is nothing in the record
to suggest that any Defendant affirmatively withdrew from the
conspiracy. See United States v. Piper, 298 F.3d 47, 52 (1st Cir.
2002) ("Where a conspiracy contemplates a continuity of purpose and
a continued performance of acts, it is presumed to exist until
there has been an affirmative showing that it has terminated."
(internal quotation marks omitted)).
As to the second requirement, the calls did in fact
further the ends of the conspiracy. At the time of the calls,
Cummings and Juan had been arrested but Christopher had not, and
the evidence showed that the conspiracy was still ongoing at the
Housing Project. For example, Officer Vázquez testified that
-34-
surveillance continued until November 2012, months after the June
and July telephone calls. Moreover, when Christopher was arrested,
additional guns and drugs were seized, suggesting that the
contraband seized in the earlier raids had been replenished. See
United States v. Elwell, 984 F.2d 1289, 1293 (1st Cir. 1993)
(finding a conspiracy to be ongoing and defendant to still be a
part of it even after his arrest).
Given that the organization was still operating, the
calls can reasonably be interpreted as promoting the conspiracy.
Cummings and Christopher discussed how certain members of the
conspiracy -- such as Rivas -- knew that Christopher was going to
be attacked and that Christopher was contemplating retaliating
against those who were disloyal. Maintaining loyalty from others
clearly promotes the conspiracy. See Ciresi, 697 F.3d at 30
(finding that statements "served to placate . . . and forestall any
dissension" were in furtherance of the conspiracy); Elwell, 984
F.2d at 1293.
The calls, therefore, properly qualify as co-conspirator
statements and were thus properly admitted.
B. Overview Testimony
Next, Defendants claim that Officer Vázquez and Federal
Bureau of Investigation ("FBI") Special Agent David James provided
improper overview testimony. Overview testimony occurs, for
example, when "a government witness testifies about the results of
-35-
a criminal investigation, usually including aspects of the
investigation the witness did not participate in, before the
government has presented supporting evidence." United States v.
Rosado-Pérez, 605 F.3d 48, 55 (1st Cir. 2010). We have repeatedly
condemned the use of such tactics, finding it "inherently
problematic" for a number of reasons. United States v. Casas, 356
F.3d 104, 119 (1st Cir. 2004); see also United States v. Flores-De-
Jesús, 569 F.3d 8, 14 (1st Cir. 2009). First, because it is
possible that "evidence promised by the overview witness never
materializes," Flores-De-Jesús, 569 F.3d at 17, the testimony
"raises the very real specter that the jury verdict could be
influenced by statements of fact or credibility assessments" not in
evidence, Casas, 356 F.3d at 119. Second, it is similarly possible
that subsequent testimony will differ from the assumptions of the
overview witness. Id. at 119-20.
Though our concerns with overview testimony are
applicable regardless of the witness involved, our skepticism is
enhanced when the witness is a law enforcement official because
"juries may place greater weight on evidence perceived to have the
imprimatur of the government." Id. at 119. As we explained in
Flores-De-Jesús, "overview testimony of a law enforcement official
is not simply a repetition (at best) of other evidence. It is
also, in effect, an endorsement of the veracity of the testimony
that will follow." 569 F.3d at 18. Moreover, a law enforcement
-36-
official is likely to "express opinions as to defendants'
culpability based on the totality of information gathered in the
course of their investigation," even though the official did not
have personal knowledge. Id. at 19 (alterations omitted) (internal
quotation marks omitted). Such testimony is inadmissible and
effectively serves to usurp the role of the jury because the
witness's inference is based on the same circumstantial evidence
presented to the jury. United States v. Meises, 645 F.3d 5, 16
(1st Cir. 2011).
With that background in place, we now turn to the
contested testimony here.
1. Officer Vázquez
Defendants never objected that Officer Vázquez was
providing overview testimony, and thus we review for plain error.
Rosado-Pérez, 605 F.3d at 54.
a. The Contested Testimony
Officer Vázquez testified during the first two days of
trial. In explaining his involvement in the investigation, Officer
Vázquez told the jury that he led the Bayamón Strike Force which
was tasked with, among other things, conducting video surveillance.
This video surveillance, he explained, occurred over fifteen days.
On twelve of those days, Officer Vázquez was either personally
operating the camera or assisting a colleague in doing so; on the
-37-
other three days, Officer Vázquez was on the ground surveilling the
Housing Project.
In addition to authenticating the clips from the fifteen-
day surveillance, Officer Vázquez also described what the clips
were portraying. He told the jury that the surveillance was
directed toward "the site that we had identified as the drug point"
and that the video clips represented "all persons that appear[ed]
engaged in a criminal activity at that point in time." For each
video clip, he would point out all of the individuals present --
noting their role in the drug organization -- as well as the
controlled substances, firearms, and other objects which could be
seen. For example, in one clip, Officer Vázquez explained to the
jury that they were viewing Cummings holding "a package with a
number of baggies inside with a white content." The rest of the
clips contained similar commentary.
b. This Testimony Was Not Overview Testimony
Contrary to Defendants' contention, this was not a "new
variation" of overview testimony derived by the government. In
fact, it was not "overview" testimony at all. Officer Vázquez was
present at each and every surveillance -- either behind the camera
or in front of it -- and thus was simply testifying about his own
observations based on his personal knowledge. And while he did
note the apparent roles each Defendant played in the organization,
he never expressed an opinion as to their culpability. Cf. Flores-
-38-
De-Jesús, 569 F.3d at 19 ("When a law enforcement witness expresses
opinions as to defendants' culpability based on the totality of
information gathered in the course of their investigation, these
conclusory statements often involve impressible lay opinion
testimony . . . ." (alterations omitted) (internal citation and
quotation marks omitted)). Appropriate testimony does not become
improper overview testimony just because one law enforcement
official was present throughout the entire investigation and is
then called to walk the jury through the investigation from
beginning to end. See United States v. Valdivia, 680 F.3d 33, 48
(1st Cir. 2012) ("[F]ar from being a scripted 'overview' of the
government's case by uninvolved agents, the testimony represented
the fruits of first-hand police work."); Rosado-Pérez, 605 F.3d at
55-56 (finding testimony to be proper where agent was lead
investigator, participated in surveillance and controlled drug
buys, and testified only on the basis of personal observations).
Moreover, none of the problems generally associated with
overview testimony are present here. Because Officer Vázquez was
providing a first-hand account of his observations, while
simultaneously playing the video clips of those surveillances,
there is no concern that the evidence being testified to would
never materialize. Nor is there a worry that Officer Vázquez would
make assumptions disputed by later testimony. Cf. Flores-De-Jesús,
569 F.3d at 17; Casas, 356 F.3d at 119.
-39-
Accordingly, the testimony was proper.
2. Agent James
Unlike with Officer Vázquez, there was an objection to
the district court's decision to allow Agent James to elaborate and
clarify his testimony. Accordingly, our review is for abuse of
discretion. Rosado-Pérez, 605 F.3d at 54.
a. The Contested Testimony
Agent James was called as part of Christopher's case-in-
chief in an attempt to discredit Rivas, one of the government's
cooperating witnesses. Rivas had testified during the government's
case that Christopher was a leader of the organization, but in a
pre-trial interview with Agent James, Rivas had not named
Christopher when listing the organization's leadership.
Accordingly, Christopher's attorney asked the agent to read a
paragraph from his interview report which had memorialized the
conversation. After reading the paragraph, Agent James attempted
to clarify the report. He explained (over Christopher's objection)
that while the report reflected Rivas's initial interview, he "of
course corroborated this with other intelligence." He then
proceeded to summarize this intelligence:
AGENT JAMES: [Rivas] did not know the
name of this individual, but did identify his
nickname as Negro. If I can provide some
context to the Court.
COURT: Sure.
-40-
AGENT JAMES: In these initial
interviews, I had a binder that showed
different pictures, and so I'd just show it
and they would identify. So this is the
number two of the ones whom I showed him whom
Carlos Rivas identified.
So number two, he did not know the name
of the individual, but identified his nickname
as Negro. Negro is known to us as -- by law
enforcement as Christopher Laureano Pérez.
Negro is the other leader of the Residential
Villas De Monterrey. Negro frequents
Residential Villas De Monterrey more than
Miguel. He visits Villas De Monterrey
approximately three times a week or more.
Miguel only visits approximately two times a
week. He gives orders to the drug point.
Negro is armed with a .50 caliber pistol. He
saw him firing it on New Year's Eve. Negro
was shooting it into the air.
Previously, some enemies of Residential
Villas De Monterrey tried to kill Negro and
his children in order to take over the
Residential Villas De Monterrey drug point.
Negro drives a black Toyota Carolla [sic], and
also rides a gray and black scooter. He has a
house probably in Naranjito or Barranquitas.
b. This Testimony Was Potentially Improper but
Harmless
Unlike Officer Vázquez's testimony, this testimony was
potentially problematic for two reasons. First, Agent James made
clear that he was not testifying about his personal knowledge of
"Negro" but rather was summarizing everything the investigation had
uncovered. Second, the "context" he provided was well beyond the
scope of the question asked.
Whether this qualifies as improper "overview testimony,"
however, is a determination we need not make because any error that
-41-
may have occurred was harmless. Agent James testified as part of
Christopher's case-in-chief, well after the government had already
rested. Thus, most -- if not all -- of the evidence Agent James
referred to had already been introduced by other witnesses. At the
very least, the government had provided evidence that Christopher
and "Negro" were the same person and that there had been an attempt
on Christopher's life. Given the timing of this testimony and the
fact that the same evidence had previously been properly
introduced, we are confident that this testimony did not affect the
verdict, and thus the error was harmless. See United States v.
Hall, 434 F.3d 42, 57 (1st Cir. 2006) (distinguishing other cases
involving improper overview testimony in part because the officer
"did not testify until near the end of the government's case-in-
chief"); Casas, 356 F.3d at 121 (explaining that the admission of
improper testimony is "harmless if it is highly probable that the
error did not influence the verdict").
C. Judicial Bias
Defendants next allege that numerous actions by the
district court show that it was biased against them, and that this
bias deprived them of a fair trial. When reviewing claims of
judicial bias, we "must evaluate the judge's actions 'according to
a standard of fairness and impartiality, recognizing that each case
tends to be fact-specific.'" Logue v. Dore, 103 F.3d 1040, 1045
(1st Cir. 1997) (quoting United States v. Polito, 856 F.2d 414, 418
-42-
(1st Cir. 1988)). That being said, it is important to consider
"isolated incidents in light of the entire transcript so as to
guard against magnification on appeal of instances which were of
little importance in their setting." United States v. Candelaria-
Silva, 166 F.3d 19, 35 (1st Cir. 1999) (internal citation and
quotation marks omitted).
Here the allegations take three general forms: (1)
endorsement of government witnesses through additional questions by
the district court; (2) hostile statements made to Juan by the
district court; and (3) adverse judicial rulings. These sorts of
claims will only be successful if the party alleging bias can show
"serious prejudice." Logue, 103 F.3d at 1045. After thoroughly
reviewing the record, we reject the contention that these actions
-- either taken independently or together -- rise to the level of
legally cognizable judicial bias by the district court.
1. The Bolstering of Witnesses
Defendants first argue that the district court
continually questioned witnesses and interjected comments which
improperly bolstered their testimony, thus lessening the
government's burden and evincing bias towards them. Because no
Defendant objected to the district court's practice of asking
questions or to any of its specific comments, we review for plain
error. United States v. Fernández, 145 F.3d 59, 63 (1st Cir.
1998).
-43-
a. Relevant Facts
During trial, the district court asked witnesses a number
of questions and made a variety of comments. These included the
following:
C During the testimony of cooperating
witness Díaz, the district court asked
"what are your obligations?" in
relation to the cooperation agreement
with the government. In response, Díaz
stated that his obligation was
"cooperation in telling the truth." He
also testified that he had been offered
"safety" and "security out in the
street" in exchange for his
cooperation. When Juan objected to the
government's attempt to elaborate, the
district court sustained the objection,
stating that "it is self-explanatory"
that "he cooperates, he needs
security."
C During the testimony of cooperating
witness Rivas, the district court
interjected when the government asked
what would happen if Rivas did not tell
the truth. The court stated, "Do you
understand that aside from that point,
if you are caught lying, inventing,
exaggerating, et cetera, you could face
charges for perjury or for obstruction
of justice, too?" Rivas acknowledged
that "[e]verything would then be in the
hands of the Judge" if he was caught
lying, to which the district court
responded "on top of that, you will
always be in my hands, you understand
me?" Finally, when Rivas revealed that
he and the government had agreed on a
sentence recommendation of sixty
months, the district court again
interrupted to make clear that it did
not necessarily have to follow the
recommendation.
-44-
C When the district court overruled an
objection and allowed Officer Eric
Rivera Figueroa ("Officer Rivera") to
testify about how a "chip" converts a
pistol into an automatic weapon, it
explained its ruling by stating that
"[t]his man has been a police officer
dealing with firearms and drugs for
years. He can tell us whether this is
a chip or not." Similarly, the
district court explained that it was
allowing Rivera to show the jury how to
use a magazine because "[h]e's in the
police force, in the Bayamón Strike
Force, deals with these issues every
day of his life."
C When Officer María Cruz identified an
item seized during the search as a
"cleaning kit," the district court
inquired what the kit was designed to
clean.
C During the testimony of federal Bureau
of Alcohol, Tobacco, Firearms, and
Explosives ("ATF") Agent Carlos
González, the district court asked a
number of questions related to the
seized firearms. First, it asked what
the purpose of shortening the AK-47
was, to which Agent González responded,
"[t]he shorter you make a firearm, the
easier it is to conceal." Second, it
asked whether high-capacity magazines
like the ones seized were legal to buy,
to which the agent responded that they
were. It followed this up by asking "a
curious question" regarding the
magazines: "When you guys go out on an
operation, is this the kind of thing
you use on your firearms?" When the
agent responded in the negative, the
district court said "[n]ot at all,
right?"
C When Officer Rivera described the items
he recovered during the search as
"cylindrical plastic transparent
-45-
bottles, containers," the district
court tried to clarify their
description, asking if they were
"[l]ittle bottles. It's like little
bottles, correct?"
C In response to Officer Abizer Cotto
Adorno ("Officer Cotto") identifying
seized items as "cocaine vials," the
court interjected, clarifying that the
officer did not actually know what was
inside the vials.
b. The District Court Did Not Improperly Endorse
Witnesses
"It is well-established that a judge is not a mere
umpire" and accordingly "has a perfect right -- albeit a right that
should be exercised with care -- to participate actively in the
trial proper." United States v. Ofray-Campos, 534 F.3d 1, 33 (1st
Cir. 2008). This includes asking questions "to elicit facts to
facilitate a clear presentation of the issues." United States v.
Meléndez-Rivas, 566 F.3d 41, 50 (1st Cir. 2009) (internal quotation
marks omitted). Still, a district court needs to "be balanced;
[it] cannot become an advocate or otherwise use [its] judicial
powers to advantage or disadvantage a party unfairly." Id.
(internal quotation marks omitted). So as long as the court
"preserves an attitude of impartiality and guards against giving
the jury an impression that the court believes the defendant is
guilty," it may question witnesses. United States v. Rosario-
Peralta, 199 F.3d 552, 560 (1st Cir. 1999).
-46-
Here, Defendants point to the district court's comments
during the testimonies of Díaz, Rivas, Officer Rivera, Officer
Cruz, and Agent González to support their claim of bias. However,
Defendants conveniently ignore the district court's comments and
questions to Officer Rivera and Officer Cotto and its question to
Agent González regarding the legality of purchasing high-capacity
magazines which show a much more balanced approach to questioning.
Taken together, these questions and comments show that
the district court asked questions which were helpful (and
unhelpful) to both sides. For example, it asked Agent González
about the purpose of shortening firearms and whether it was common
law enforcement procedure to use high-capacity magazines (questions
unhelpful to Defendants), but it also asked him whether those same
high-capacity magazines were legal to buy (a question helpful to
Defendants). And while it questioned Officer Cruz as to the
purpose of the recovered cleaning kit (a question unhelpful to
Defendants), it also corrected Officer Cotto's statement that he
recovered "cocaine vials" by interjecting that the officer did not
actually know what was inside (a question helpful to Defendants).
We view these questions as a legitimate attempt to clarify
testimony and focus the presentation of evidence, and not an
-47-
indication of a district court using its powers to unfairly
disadvantage Defendants.22 See Meléndez-Rivas, 566 F.3d at 50.
We also disagree with Defendants that reminding the
cooperating witnesses of their requirement to be truthful was
"bolstering the prosecution." If anything, these warning should
help Defendants, since if the witnesses had a motivation to lie --
which is the focus of the typical cross-examination of a
cooperating witness -- the district court's comments could have
scared the witnesses into telling the truth. The same can be said
for the district court's action of sustaining Juan's objection to
the government's attempt to follow up on Díaz's "safety" comment.
Similarly, we fail to see how the district court was
bolstering the prosecution by explaining its reasoning for finding
Officer Rivera and Agent González qualified to answer the
government's questions. There is a difference between objectively
stating the officer's qualifications to answer a question on the
one hand and suggesting that the officer's testimony is to be given
enhanced weight and credibility because of these qualifications on
the other. Here, the district did the former while avoiding the
latter.
22
We also note that the district court's questioning was isolated,
occurring only a handful of times over an eight-day trial. Cf.
United States v. Ayala-Vázquez, 751 F.3d 1, 19-20, 25 (1st Cir.
2014) (finding a district court's questioning to not be improper
where there were twenty-three comments over four days of an
eighteen-day trial).
-48-
While all of these interjections may have highlighted
issues Defendants would rather the jury not have focused on, that
does not mean that the district court improper bolstered witnesses,
nor does it indicate bias. See Rosario-Peralta, 199 F.3d at 560.
Finally, we add that even if the questions did mistakenly
give the jury an impression of bias, cf. United States v. Rivera-
Rodríguez, 761 F.3d 105, 121 (1st Cir. 2014), any prejudice was
cured by the district court in its closing instructions, where it
specifically instructed the jury on this issue:
I have an obligation as a judge to get
immersed in questioning if I think I should,
but you should not ever take from any question
that I [m]ake or from anything that I say or
do an inclination or indication on my part as
to what the result of the case should be.
That is not the purpose. The purpose is to
try to give you the best quality of evidence
possible. You are at liberty to disregard any
question, any comment that I may have made in
the context of this case.
We have previously held that similar jury instructions were
sufficient to dispel any impressions that a district court's
questioning may have caused, and we see no reason to depart from
those holdings here. See Ayala-Vázquez, 751 F.3d at 25, 26;
Rivera-Torres v. Ortiz-Vélez, 341 F.3d 86, 100 (1st Cir. 2003); cf.
Meléndez-Rivas, 566 F.3d at 51 n.10 ("There was, for example, no
instruction that the jury should not assume the court had any view
on the subject of the court's questions and that the jury could
disregard all the court's questions.").
-49-
2. The District Court's Admonitions to Juan
Juan also argues that the district court was specifically
biased against him.
a. Relevant Facts
Once during jury selection and again during the trial,
the district court observed Juan staring at the jury. Thinking
that this was an attempt to intimidate them, the district court
sent Juan's counsel a note warning Juan not to stare at the jury.
Also during the trial, Juan alerted the district court that he
believed the prosecutor was making improper hand signals to
witnesses. When the issue was discussed outside the presence of
the jury, the district court rejected the allegation, telling Juan
that it was observing the prosecutor and it did not see any
improper signaling. Juan was unconvinced, and asked the court for
permission to "raise his hand" when he saw the prosecutor making
these signals. The district court was having none of it, though,
and chastised Juan for this request. It told Juan to not even
think about it and threatened that if he "dare[d] to disrupt th[e]
courtroom," the district court would "force" Juan into his chair or
make him watch the trial "in front of a TV set in the jail."23
23
While the district court forbade Juan from disrupting
proceedings by raising his hand, it did offer Juan the opportunity
to file a motion regarding the alleged hand gestures. Juan
declined to do so.
-50-
b. These Admonitions Did Not Evince Bias
"[J]udicial remarks during the course of a trial that are
critical or disapproving of, or even hostile to, counsel, the
parties, or their cases, ordinarily do not support a bias or
partiality challenge." Liteky v. United States, 510 U.S. 540, 555
(1994). There is a difference "between expressions of impatience,
annoyance or ire, on the one hand," which are permissible, "and
bias or partiality, on the other hand," which are forbidden.
Candelaria-Silva, 166 F.3d at 35 (internal quotation marks
omitted).
Here, the allegations raised by Juan fall into the former
category. Both actions -- warning Juan not to stare at the jury
and prohibiting him from "raising his hand" in the middle of
questioning by the government -- are simply efforts at courtroom
administration which are well within the district court's
discretion. Liteky, 510 U.S. at 556. Even the district court's
alleged threat that if Juan "dare[d] to disrupt th[e] courtroom,"
the district court could "force" Juan into his chair or make him
watch the trial "in front of a TV set in the jail" is nothing more
than an attempt to get Juan to behave and not disrupt proceedings.
To be sure, these admonishments are stern and somewhat harsh. But
that alone is insufficient to establish bias. See id. ("A judge's
ordinary efforts at courtroom administration -- even a stern and
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short-tempered judge's ordinary efforts at courtroom administration
-- remain immune."); Candelaria-Silva, 166 F.3d at 35.
Moreover, the district court went out of its way to
ensure that the jury did not become aware of these admonishments --
it sent notes to Juan's counsel instructing Juan not to stare at
the jury, and the discussion involving Juan raising his hand
occurred at a sidebar. Given this discretion, we fail to see how
Juan was prejudiced by the comments. See Candelaria-Silva, 166
F.3d at 35 ("[A] trial judge's frustration displayed at sidebar
does not deprive a defendant of a fair trial."); Logue, 103 F.3d at
1046 (holding that a statement made outside "the presence of the
jury does not irretrievably taint the trial").24
3. The District Court's Treatment of Alleged Improper
Jury Contact
Finally, Juan and Cummings (through his supplemental pro
se brief) also contend that the district court was biased in its
24
Unconnected to any particular concern about these admonitions,
Juan also contends that the district court was biased based on
statements that Juan says show it had "formed an opinion with
regards to the ultimate issue of [Juan's] guilt." Juan bases that
contention on statements the district court made late in the trial
-- out of the hearing of the jury -- including telling Juan that
Juan was "in charge in Villas De Monterrey." Even if these
statements could be taken to suggest that the district court had by
that point formed an opinion as to Defendants' guilt, the law is
clear that a judge who over the course of the trial becomes
"exceedingly ill disposed towards the defendant, who has been shown
to be a thoroughly reprehensible person," is "not thereby recusable
for bias or prejudice, since his knowledge and the opinion it
produced were properly and necessarily acquired in the course of
the proceedings . . . ." Liteky, 510 U.S. at 550-51.
-52-
treatment of Juan's allegation of improper contact between the
prosecutor and a juror.
a. Relevant Facts
During trial, Juan's counsel advised the district court
of an alleged prohibited contact between the prosecutor and a juror
in the cafeteria in which the two discussed the weapons in the
case. In response, the district court questioned the prosecutors
and the court security officer, all of whom denied the contact. It
also agreed to hear the testimony of a witness, but would only do
so in open court since the public had a right to know what was
occurring. When Juan's counsel proffered that the witness was
unwilling to do so (but would testify to the court in chambers),
the district court denied the motion, finding the allegation was
unsubstantiated and "smells like a red herring." It added that "it
is natural for somebody who is in that circumstance to try to do
whatever it takes to try to derail the procedure" and that it would
"believe the word of an official Assistant U.S. Attorney, two of
them, that says this did not happen."25
25
These comments were based, at least in part, on the fact that
the alleged conversation -- that the juror allegedly told the
Assistant U.S. Attorney that he "would sign[] whatever was
necessary for the weapons that were in evidence" -- does not even
make sense. For that reason, the district court did not clearly
err in concluding that no inappropriate contact had occurred, and
so we also reject Cummings's pro se argument that this incident
deprived him of an impartial jury.
-53-
b. The District Court's Treatment of the
Allegation Did Not Evince Bias
There is nothing here to suggest bias on the part of the
district court. The court took the allegation seriously and was
willing to hold a hearing. It questioned the Assistant U.S.
Attorney and the court security officer, and it was willing to
question another witness as well. That the district court refused
to close the courtroom to question this witness does not show bias;
rather, it is just an example of the district court exercising its
"wide discretion to determine the scope of [a] resulting inquiry
and the mode and manner in which it will be conducted." United
States v. Paniagua-Ramos, 251 F.3d 242, 250 (1st Cir. 2001). Juan
and Cummings simply disagree with the court's resolution of the
issue, which is insufficient to establish bias. See Liteky, 510
U.S. at 555 ("[J]udicial rulings alone almost never constitute a
valid basis for a bias or partiality motion.").
4. The Cumulative Effect of These Circumstances Did Not
Evince Bias
Even though each of the allegations raised by Defendants
does not, on its own, show bias, we must still consider whether
these allegations in the aggregate demonstrate judicial bias. See
Candelaria-Silva, 166 F.3d at 35; Logue, 103 F.3d at 1045. After
a thorough review of the record, we are convinced that they do not.
These isolated events, none of which showed bias, did not somehow
combine to create such a biased atmosphere that Defendants were
-54-
deprived of a fair trial. Accordingly, we reject Defendants'
arguments regarding judicial bias. And because we find no credible
claim for judicial bias, the district court did not abuse its
discretion in denying Defendant's recusal motion due to bias. See
United States v. Pulido, 566 F.3d 52, 62 (1st Cir. 2009) ("We
review a ruling on a motion to recuse for abuse of discretion
. . . . [and] will sustain the district court's ruling unless we
find that it cannot be defended as a rational conclusion supported
by [a] reasonable reading of the record." (internal quotation marks
omitted)).
D. The Sufficiency of the Evidence for Cummings's Machinegun
Convictions
Counts Five and Six of the superseding indictment charged
Cummings with illegal possession of a machinegun and possession of
firearms (including machineguns) in furtherance of a drug
trafficking crime, respectively. Cummings challenges his
convictions on these counts, arguing that the evidence was
insufficient to establish his knowledge that the firearms were
machineguns. We review these sufficiency claims de novo. United
States v. Shaw, 670 F.3d 360, 362 (1st Cir. 2012).
1. Relevant Facts
On May 2, 2012, while executing a search warrant at the
Housing Project, law enforcement officials discovered a closed red
and black bag in Cummings's apartment. The bag contained four
firearms, two of which were .40-caliber Glock pistols with visible,
-55-
external chips which converted the pistols into automatic firearms.
During his subsequent interrogation, Cummings admitted that he
often "stored weapons and drugs for the organization" and was going
to be paid "around $400" for storing this particular bag. At
trial, Rivas, one of the cooperating witnesses, testified that he
had seen Cummings testing fully automatic weapons, including a
black pistol which was "either a .40 or .45" caliber.
2. The Evidence Was Sufficient to Convict Cummings
In reviewing claims of insufficiency, "we consider the
evidence, including all reasonable inferences drawn therefrom, in
the light most favorable to the jury's verdict." Id. So long as
"any reasonable jury could find all the elements of the crime
beyond a reasonable doubt, we must uphold the conviction." United
States v. Lizardo, 445 F.3d 73, 81 (1st Cir. 2006).
Here, Cummings concedes that the evidence established
that he possessed firearms and possessed firearms in furtherance of
a drug-trafficking crime. He argues, however, that the evidence
was insufficient to establish the additional element that he knew
the firearms had been modified to fire automatically, thus bringing
them under the definition of a machinegun. See United States v.
Nieves-Castaño, 480 F.3d 597, 599 (1st Cir. 2007) (explaining that
to convict under 18 U.S.C. § 922(o), the "government must . . .
prove beyond a reasonable doubt that the defendant knew the weapon
had the characteristics that brought it within the statutory
-56-
definition of a machinegun." (internal quotation marks omitted)).
According to Cummings, the government provided no evidence that he
opened up the bag or was told what the bag contained, and thus
there is no evidence to show that he knew the guns were machineguns
and not regular firearms.
Though a close call, we disagree. This case is quite
similar to a previous case, United States v. Azubike, in which a
defendant convicted of conspiracy to possess with the intent to
distribute narcotics argued that while the evidence established
that he knew the suitcase he was transporting contained something
illegal, the evidence was insufficient to prove beyond a reasonable
doubt that he knew the suitcase contained a controlled substance.
564 F.3d 59, 61-62, 64 (1st Cir. 2009) ("Azubike II"); 504 F.3d 30,
32-36 (1st Cir. 2007) ("Azubike I"). Two separate panels of this
court upheld the conviction on sufficiency of the evidence
grounds,26 explaining that a number of factors and inferences made
it possible for a jury to conclude that Azubike would likely have
known the contents. These included a recorded phone conversation
in which Azubike did not want to talk about the "stuff" over the
phone, the close relationship between Azubike and the conspiracy's
26
Azubike's first conviction was upheld on sufficiency grounds but
reversed due to prosecutorial misstatements during closing
arguments. Azubike I, 504 F.3d at 36, 40-42. After Azubike was
convicted a second time, we once again concluded that the evidence
was sufficient to support the conviction. Azubike II, 564 F.3d at
64-66.
-57-
leaders, the fact that Azubike was entrusted with a large amount of
drugs (thus suggesting he was trustworthy), and the modus operandi
of the crime. Azubike II, 564 F.3d at 64-65; Azubike I, 504 F.3d
at 37-38.
Many of those same factors are present here. First,
Cummings admitted during his interrogation that he often stored
guns and drugs for the organization. The repetitive nature of this
process (his modus operandi) could lead a jury to infer that simply
by being handed the bag and being told how much he would be
expected to be paid, Cummings would understand what the bag
contained.
Second, the fact that Cummings had stored weapons and
drugs before suggests that he was trusted by his co-conspirators,
and positions of trust often come with increased access to
information. See Azubike I, 504 F.3d at 37 ("[A] reasonable
inference of knowledge arises when the defendant is trusted with
possession of a large amount of drugs. This is because drug
organizations do not usually take unnecessary risks by trusting
critical transactions to outsiders."); see also Azubike II, 564
F.3d at 65.
Third, the evidence established that Cummings and
Christopher -- one of the leaders of the organization -- were
close. First, remember the phone calls between Christopher and
Cummings while Cummings was incarcerated. Not only did Christopher
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attempt to pay for Cummings's counsel, but he also confided in
Cummings that he believed members of the organization knew that
Christopher was going to be targeted, and that retribution would be
taken on those who were not loyal. Second, Díaz testified that he
would use Cummings's car when going on rounds for Christopher.
That Cummings was willing to give up his car so that Christopher
could order these activities further supports a close relationship
between the two. Given this apparent closeness, a jury could
rationally conclude that Christopher would have confided in him
regarding the details of the bag. See Azubike II, 564 F.3d at 64-
65; see also Azubike I, 504 F.3d at 37.
Finally, Rivas testified that Cummings had tested the
organization's weapons in the past and had been seen firing .40 or
.45 caliber black pistols which had been modified to fire
automatically shortly before Cummings was given the bag seized
during the May 2 search. Given that Cummings had been seen with
machineguns previously, a reasonable jury could infer that Cummings
knew that these were the types of guns he was being asked to
safeguard.27
27
This last point is the key difference between the present case
and Nieves-Castaño, the case relied upon by Cummings. In Nieves-
Castaño, we found insufficient evidence of knowledge because the
modifications to make the gun fire automatically were all internal
and there was no evidence that the defendant was knowledgeable
about firearms or had fired the AK-47 rifle previously. 480 F.3d
at 600-02. Here, by contrast, the government presented evidence
that Cummings had a practice of storing firearms for the
organization and had been seen testing automatic weapons shortly
-59-
Though far from the strongest of cases, we believe that
the cumulation of all of this circumstantial evidence is just
enough to sustain the jury's verdict. See Shaw, 670 F.3d at 362
("Individual pieces of evidence viewed in isolation may be
insufficient in themselves to prove a point, but in cumulation may
indeed meet the mark."). Accordingly, we reject Cummings's
challenge.
E. The Courtroom Closings
Christopher, meanwhile, also argues that the district
court violated his Sixth Amendment right to a public trial when it
removed his wife and children from the courtroom. We review this
allegation de novo. United States v. DeLuca, 137 F.3d 24, 32-33
(1st Cir. 1998).
1. Relevant Facts
During the fourth day of trial, the district court
ordered that Christopher's wife and two minor children -- aged ten
and fourteen -- be removed from the courtroom. Christopher's
counsel learned of this exclusion after the day had ended, so he
brought the issue to the district court's attention at the start of
day five. Upon raising the issue, the district court acknowledged
that it had ordered all three family members removed, stating that
they had been disruptive. Regarding Christopher's wife, the
before the search. Thus, while there was no evidence from which to
infer knowledge in Nieves-Castaño, there was here.
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district court explained that it had observed her "moving her lips"
at the witness with "great distaste" and that the witness had seen
her doing so. As to the children, the district court explained
that they "were disrupting a little bit." It added that it
"d[id]n't want the children here, because this is not a place for
children . . . . [to] listen to th[ese] kind of conversations that
are recorded, nor to see drugs distributed at a drug point . . . .
[b]ecause I don't think that -- nobody should validate or let
children be exposed to that to begin with." It went on to note
that it would "never let a child of mine listen to this thing, nor
hear the language spoken on this tape."
After hearing this explanation, Christopher's counsel
asked if Christopher's wife was barred from returning, to which the
district court responded in the negative. The court instructed
Christopher's counsel that if Christopher's wife "wants to come in
and behave like a person should . . . and stay seated and put,"
then she could come back. However, it warned that a court officer
would be seated behind Christopher's wife and "if this happens
again, [the court will] get her out, and she will be banned
forever." Christopher's counsel never asked if the children could
return, nor did he object to their continued exclusion.
2. Christopher's Sixth Amendment Right Was Not Violated
The Sixth Amendment guarantees that "[i]n all criminal
prosecutions, the accused shall enjoy the right to a speedy and
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public trial." U.S. Const. amend. VI. This right was "'created
for the benefit of the defendant,' as openness in criminal
proceedings 'encourages witnesses to come forward,' 'discourages
perjury,' and 'ensure[s] that judge and prosecutor carry out their
duties responsibly.'" Bucci v. United States, 662 F.3d 18, 22 (1st
Cir. 2011) (quoting Waller v. Georgia, 467 U.S. 39, 46 (1984)).
Accordingly, closing a criminal trial to the public is
rare, and before a closure is permitted, a four-part inquiry must
be satisfied:
[1] the party seeking to close the hearing
must advance an overriding interest that is
likely to be prejudiced, [2] the closure must
be no broader than necessary to protect that
interest, [3] the trial court must consider
reasonable alternatives to closing the
proceeding, and [4] it must make findings
adequate to support the closure.
Id. (citing Waller, 467 U.S. at 48).
This test, however, applies to total closures -- where
all members of the public are excluded during some portion of the
trial. Id. "In partial closures -- i.e., where courtroom access
is restricted but some members of the public are permitted to
attend -- this court and several of our sister circuits have held
that a 'substantial' interest, rather than a 'compelling' one, will
justify [a] partial closure." Id. Because only Christopher's wife
and children were removed from the courtroom, we analyze the
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exclusions under the modified Waller test for partial closures.28
Id. at 27.
a. Christopher's Wife
The exclusion of Christopher's wife complied with the
modified Waller test. First, the district court explained that it
observed Christopher's wife making faces and mouthing words of
disapproval at the witness, and that the district court believed
that the witness saw these actions. We agree that such actions
could be seen as an attempt at witness intimidation, and the
prevention of witness intimidation is clearly a "substantial"
interest. See Martin v. Bissonette, 118 F.3d 871, 873 (1st Cir.
1997) (upholding the exclusion of defendant's family members during
the reopening of a witness's testimony where the witness stated
that her initial testimony had been untrue because she had been
given looks by defendant's family and felt intimidated); United
States v. Brazel, 102 F.3d 1120, 1155-56 (11th Cir. 1997)
(requiring that the public identify themselves before entering the
courtroom constituted a partial closure but was permissible because
the district court observed individuals coming into the courtroom
and staring at witnesses); Woods v. Kuhlmann, 977 F.2d 74, 77-78
(2d Cir. 1992) (upholding a partial, temporary closure where
28
We reject the government's argument that there was never a
closure of any kind. Christopher's wife and children were removed
from the courtroom and forbidden from returning on that day. The
courtroom was closed to them, and thus a partial closure existed.
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defendant's family was excluded because, after observing the family
members and the witness and having a brief exchange with the
witness, the district court believed family members were
intimidating witnesses).
Second, we believe that the district court's requirement
that Christopher's wife leave until she promised to behave herself
was "no broader than necessary" to protect this substantial
interest. As soon as Christopher's wife stopped mouthing words and
staring at witnesses, she was to be allowed back in, and thus, the
removal was "neither broader nor longer than was reasonably
necessary to end this . . . harassment and secure the witness's
accurate testimony." Martin, 118 F.3d at 875.
Third, while it would have been better for the district
court to have explicitly stated that it had considered reasonable
alternatives to removing Christopher's wife, we have previously
held that such a consideration can be implicit. See id. at 875 &
n.4. This is especially true here, where no reasonable and less-
broad alternative existed. Christopher suggests that the court
should have publicly admonished his wife and warned her to stop
before removing her, as opposed to making that a condition for
reentry, and that it should have questioned the witness to
determine whether he had seen Christopher's wife's actions and been
intimidated by them. However, we believe neither of these
alternatives to be reasonable under the circumstances. The
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district court was concerned that the witness was being intimidated
and wanted to take action to ensure that that did not happen. Had
the court stopped the proceedings, questioned the witness, and
scolded Christopher's wife, all this would have done is disrupt the
proceedings, draw attention to the situation, and possibly even
enhance the intimidation felt by the witness. "Nothing in Waller
or in any other case cited by [Christopher] suggests that a trial
judge, presented with evidence of . . . witness intimidation . . .
must undertake an assessment of the exact level of affrightment
. . . before closing a courtroom." Id. at 875. In fact, the law
is to the contrary. See id.
Finally, as already explained, the district court
informed Christopher's counsel that Christopher's wife was removed
because she was staring at the witness "moving her lips" with
"great distaste" and that the witness had seen her doing so. This
is an adequate finding to support the partial closure. See Martin,
118 F.3d at 873; Brazel, 102 F.3d at 1155-56; Kuhlmann, 977 F.2d at
77-78.
Accordingly, the exclusion of Christopher's wife during
the fourth day of trial met the modified Waller test and did not
violate Christopher's Sixth Amendment right to a public trial.
b. Christopher's Children
In stark contrast to his wife's exclusion, where
Christopher's counsel asked specifically whether she was barred and
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if she could return, Christopher's counsel remained silent with
regards to Christopher's children and never sought to have them
readmitted. This silence is fatal to Christopher's claim. When
the "subject matter [is] unmistakably on the table, and the
defense's silence is reasonably understood only as signifying
agreement that there was nothing objectionable," the issue is
waived on appeal. United States v. Christi, 682 F.3d 138, 142 (1st
Cir. 2012); see also United States v. Acosta-Colón, 741 F.3d 179,
187 (1st Cir. 2013) ("The judge put the exclusion matter squarely
on the table for all the defendants' lawyers at sidebar . . . .
Each attorney had the chance to speak up. . . . So [defendant's
counsel's] silence constitutes classic waiver . . . ."); Martineau
v. Perrin, 601 F.2d 1196, 1199-1200 (1st Cir. 1979). Given that
the closure issue was front-and-center -- indeed, it was the entire
point of the colloquy -- Christopher's counsel's silence as to
Christopher's children can only be understood as implicit agreement
that they should remain barred from the courtroom. Accordingly,
this argument is nothing but an "afterthought on appeal," and thus
waived. See Levine v. United States, 362 U.S. 610, 619-20 (1960)
("Due regard generally for the public nature of the judicial
process does not require disregard of the solid demands of the fair
administration of justice in favor of a party who, at the
appropriate time and acting under advice of counsel, saw no
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disregard of a right, but raises an abstract claim only as an
afterthought on appeal.").
We pause for a moment, however, to sound a note of
caution. A defendant has a clear right to have his family present
during proceedings -- and we know of no exception for minor
children. See United States v. Negrón-Sostre, --- F.3d ---, Nos.
10-1974, 10-2042, 10-2055, 10-2057, 10-2129, 2015 WL 3898794, at *1
(1st Cir. Jun. 25, 2015) ("[W]ithout exception all courts have held
that an accused is at the very least entitled to have his friends,
relatives and counsel present, no matter with what offense he may
be charged." (quoting In re Oliver, 333 U.S. 257, 271-72 (1948)
(internal quotation marks omitted))); see also United States v.
Rivera, 602 F. App'x 372, 377 (9th Cir. 2015); Downs v. Lape, 657
F.3d 97, 108 (2d Cir. 2011) (Chin, J., dissenting). Whether any
individual child should be allowed to observe proceedings and
possibly be exposed to harsh language, violence, and other untoward
situations is a decision for that child's parents, not for the
district court.29 The court's troubling blanket view that the
courtroom was "not a place for children" is not only overly
paternalistic, but also potentially in contradiction with the Sixth
Amendment.
29
Indeed, the child's parents may find such observation to have
educational benefits despite the adult themes. Observing the
judicial system in action can be a valuable civics lesson for a
person of any age, and especially for an adolescent.
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F. Cumulative Error
Finally, Defendants argue that even if no single error
warrants reversal, the cumulative effect of these errors form an
"interconnected web of unfairness." While we agree that
"[i]ndividual errors, insufficient in themselves to necessitate a
new trial, may in the aggregate have a more debilitating effect,"
United States v. Sepúlveda, 15 F.3d 1161, 1195-96 (1st Cir. 1993),
that is not the situation presently before us.
Defendants allege a host of errors, but only one has any
potential merit: Agent James's testimony as to Christopher's
involvement in the conspiracy which was both beyond his personal
knowledge and beyond the scope of the question asked. But as we
discussed above, any error was harmless. And there can be no
"cumulative" error when multiple errors do not exist. See United
States v. DeSimone, 699 F.3d 113, 128 (1st Cir. 2012) ("The
cumulative error doctrine is of no use to [defendant] because the
only identified error was harmless."); United States v. Stokes, 124
F.3d 39, 43 (1st Cir. 1997) ("By definition, cumulative-error
analysis is inappropriate when a party complains of the cumulative
effect of non-errors.").
IV. Sentencing Issues
In addition to attacking their convictions, Cummings and
Christopher also challenge their sentences. We review these
challenges under a deferential abuse-of-discretion standard, the
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goal being to ensure that the sentence "is both procedurally sound
and substantively reasonable." United States v. Trinidad-Acosta,
773 F.3d 298, 308 (1st Cir. 2014) (quoting United States v. Dávila-
González, 595 F.3d 42, 47 (1st Cir. 2010)) (internal quotation
marks omitted); see also United States v. Maisonet-González, 785
F.3d 757, 762 (1st Cir. 2015). Because both Defendants only
challenge the procedures by which the district court arrived at
their respective sentences, that is where we focus our discussion.
A sentence is procedurally sound so long as the district
court complies with the "'specifically delineated roadmap'" we have
previously laid out. United States v. Serunjogi, 767 F.3d 132, 142
(1st Cir. 2014) (quoting United States v. Madera-Ortiz, 637 F.3d
26, 29 (1st Cir. 2011)). This entails calculating the applicable
Guidelines Sentencing Range ("GSR"), addressing any objections to
the probation department's Presentence Investigation Report
("PSR"), giving both parties an opportunity to argue for whatever
sentence they deem appropriate, considering the 18 U.S.C. § 3553(a)
sentencing factors, and explaining the reasoning behind the chosen
sentence. See Gall v. United States, 552 U.S. 38, 49-50 (2007).
Deviations from this roadmap -- such as "failing to calculate (or
improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the section 3553(a)
factors, selecting a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentence" -- constitute
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procedural error. Trinidad-Acosta, 773 F.3d at 309 (internal
quotation marks omitted); see also Gall, 552 U.S. at 51. Though
our overall review of a sentencing is for abuse of discretion, this
standard is actually multifaceted: "[W]e review factual findings
for clear error, arguments that the sentencing court erred in
interpreting or applying the guidelines de novo, and judgment calls
for abuse of discretion simpliciter." Serunjogi, 767 F.3d at 142
(alteration in original). Notably, when a defendant is convicted
of more than one count, a district court is expected to render a
separate sentence on each count. United States v. Zavala-Martí,
715 F.3d 44, 51 n.6 (1st Cir. 2013).
A. Cummings's Sentence
In his supplemental pro se brief, Cummings argues that
his sentence was procedurally flawed because the district court
erred in calculating the Base Offense Level for Count Seven (the
drug conspiracy conviction). Specifically, Cummings contends that
he was not automatically responsible for all of the drugs involved
in the conspiracy simply because he was convicted as a co-
conspirator, and the district court's failure to make an
individualized finding as to the amount specifically attributable
to him was error. This argument, while right on the law, is wrong
on the facts.
Under the Sentencing Guidelines, a defendant's Base
Offense Level for drug offenses depends mostly on the quantity of
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the drugs involved in the offense. U.S.S.G. § 2D1.1(c).
Accordingly, in order to properly calculate the GSR, the district
court must first make "an individualized finding as to drug amounts
attributable to, or foreseeable by, that defendant." United States
v. Vázquez-Larrauri, 778 F.3d 276, 291 (1st Cir. 2015) (internal
quotation marks omitted). Drug amounts are foreseeable to a co-
conspirator so long as he or she "could reasonably have anticipated
[the drugs] would be within the ambit of the conspiracy." United
States v. Santos, 357 F.3d 136, 140 (1st Cir. 2004) (citing
U.S.S.G. § 1B1.3(a)(1)(B) cmt. 2).
Here, the PSR attributed over 538,000 kilograms of
marijuana equivalent30 to Cummings, qualifying him for the highest
Base Offense Level -- Level 38. U.S.S.G. § 2D1.1(c). When
Cummings objected to this calculation, the district court rejected
his argument, responding that "no matter how you look at this, in
the context of what the conspiracy rules are and foreseeability and
all of that, he's a[n offense] level [of] 38." Though perhaps not
the clearest or most detailed of explanations, this statement shows
that, contrary to Cummings's contention, the district court did
30
Under the Sentencing Guidelines, when multiple drugs are
involved, the quantity of each drug is converted into its marijuana
equivalent and then added together to obtain the total drug
quantity. See U.S.S.G. § 2D1.1; United States v. Ventura, 353 F.3d
84, 87 (1st Cir. 2003).
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consider whether or not the entire drug amount was individually
attributable to Cummings, and the court concluded that it was.31
Because the district court did address the drug quantity
attributed to Cummings, we are left to determine whether the court
committed clear error in adopting the PSR's finding. It did not.
The evidence showed that Cummings was an enforcer in the
organization, sometimes delivered drugs, and would often store
drugs for the conspiracy. With all of these roles, Cummings could
reasonably have anticipated that such a large quantity of drugs
would be involved in the conspiracy, and thus there is no error in
concluding that that entire amount was foreseeable to him. See
Santos, 357 F.3d at 140.
In any event, even if the district court had failed to
make an individualized finding, the error would have been harmless.
See Vázquez-Larrauri, 778 F.3d at 291 (explaining that in order to
vacate a sentence, a defendant must show that an error occurred and
31
At the very least, the statement suggests the district court
believed the amount to be a fair approximation of the drug quantity
given the huge discrepancy between the threshold amount of
marijuana equivalency and the amount attributed to Cummings in the
PSR. See United States v. Mullins, 778 F.3d 37, 42 (1st Cir. 2015)
(explaining that a district court need not make an exact finding as
to drug quantity but rather may base its calculation on
"approximations," so long as those approximations "represent
reasoned estimates of drug quantity." (internal quotation marks
omitted)). Cummings's counsel seemed to concede this point during
the sentencing hearing, agreeing that since the PSR attributed
538,000 kilograms of marijuana equivalent to Cummings and the
threshold for the Base Offense Level of 38 was 30,000 kilograms,
there was no point "quibbling at the margins."
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that it affected the defendant's substantial rights). The verdict
form convicting Cummings explicitly found that at least 280 grams
of narcotics were involved in the conspiracy, thus triggering a
ten-year mandatory minimum sentence. See 21 U.S.C. § 841(b)
(1)(A)(iii). Since Cummings was only sentenced to 120 months (or
ten years) on this count, his sentence would have been the same
regardless of the individualized drug finding.
Accordingly, Cummings's sentence was procedurally sound.
B. Christopher's Sentence
Christopher was convicted on Count Seven -- the drug
conspiracy -- and Count Nine -- conspiracy to possess firearms in
furtherance of a drug trafficking crime -- of the superseding
indictment, and the district court imposed a joint "life sentence."
Christopher argues that this sentence was procedurally flawed for
a number of reasons.
First, he contends that the district court relied on the
PSR for a different defendant, and thus the district court's
sentence was tailored towards another defendant, and not
Christopher. This argument is easily dispensed with. Though the
district court did initially have the wrong PSR in front of it,
this mistake was quickly corrected. By the time the district court
made its comments regarding the Guidelines calculation and
imposition of sentence, it had been given and had reviewed the
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correct PSR. Thus, the sentence was individually tailored to
Christopher.
Second, Christopher argues that the district court failed
to consider his objections to the GSR calculation on his drug
conspiracy conviction (Count Seven), and that this failure resulted
in an incorrect calculation. At the outset of the sentencing
proceedings, the district court asked if there was "any objection
that survives," to which Christopher responded that he had filed a
sentencing memorandum containing all of his arguments for an
eighteen-to-twenty-year sentence. The district court replied,
"Okay. Very well" and made no other specific reference to the
memorandum. Later in the proceedings, however, the district court
stated "the calculations regarding drugs are totally correct, and
there's no objection about that." This latter statement was
clearly erroneous, as Christopher had indeed objected to the
calculation in his sentencing memorandum and had told the district
court as much earlier in the proceeding.
This misstatement, however, was harmless because
Christopher's objection was legally incorrect. Christopher
contended that under Alleyne v. United States, 133 S. Ct. 2151
(2013), the jury was required to find the specific drug quantity he
was responsible for, so any drug findings by the district court (or
in the PSR) could not be considered. However, all Alleyne requires
is for the jury to find that the amount of drugs is greater than
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that necessary for the mandatory minimum in order for that
mandatory minimum to be imposed. See United States v. Razo, 782
F.3d 31, 40 (1st Cir. 2015) ("[Alleyne] held that a jury finding
was required to trigger a mandatory minimum.").
The jury found that Christopher possessed at least five
kilograms of cocaine, so the district court's finding that the PSR
was correct in its calculation of a drug quantity significantly
more than that32 is entirely consistent with the jury finding -- and
entirely appropriate. See United States v. Ramos-González, 775
F.3d 483, 508-09 (1st Cir. 2015). There was thus no error in the
district court's calculation of a Total Offense Level of 43,33
corresponding to a GSR of life imprisonment.
In addition to challenging the GSR calculation for Count
Seven, Christopher also alleges that the district court erroneously
ignored the § 3553(a) factors and considered the life sentence to
be mandatory. He bases this contention on the district court's
statement that it was "imposing the mandatory life sentence."
However, immediately following this statement, the district court
clarified that the sentence was "[m]andatory in the sense that
32
The PSR concluded that Christopher was responsible for
1,076,248.4 kilograms of marijuana equivalent over the life of the
conspiracy. Of that amount, 1,053,580.4 kilograms was attributable
to some form of cocaine.
33
Technically, Christopher was at a Total Offense Level of 48, but
because the highest Total Offense Level is 43 the Guidelines call
for reducing it to 43.
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that's what the guidelines call for." Indeed, the court went on to
state that there was "nothing before me that would tell me that I
should do anything different by departure or by variance, and I
will not." Thus, though the district court did use the term
"mandatory," it is clear from its clarification and decision not to
impose a variance that this was simply a misstatement, and that the
court was well aware that the life sentence was not mandatory.
Moreover, the court's comment that there was "nothing
before me that would tell me that I should do anything different"
was most likely a reference to, and rejection of, the § 3553(a)
sentencing factor arguments contained in Christopher's sentencing
memorandum. While we wish this statement was clearer and more
explicit, it was sufficient. See United States v. Savoie, 985 F.2d
612, 621 n.11 (1st Cir. 1993) (rejecting defendant's argument that
the district court failed to address the § 3553(a) factors given
"the pointed comments delivered by the district court at
sentencing"); see also United States v. Ocasio-Cancel, 727 F.3d 85,
91 (1st Cir. 2013) ("[A] within-the-range sentence usually demands
a less detailed explanation than a variant sentence.").
Finally, Christopher argues that the district court erred
in failing to calculate the applicable GSR for Count Nine, instead
choosing to "group[]" the two counts together since there was "no
point" in calculating the sentence for each count separately. We
agree this was error. "[T]he proper procedure" during sentencing
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"is to render a separate sentence on each count." Zavala-Martí,
715 F.3d at 51 n.6 (internal quotation marks omitted). This is
especially true here where Count Nine did not authorize a life
sentence; rather, it carries a twenty-year maximum penalty.34 See
Almonte-Núñez, 771 F.3d at 92 ("[C]ollateral consequences may arise
as a result of an above-the-maximum sentence imposed on a
particular count. . . . It strikes us as both unwise and unfair to
place the risk of such harm on the defendant where, as here, the
excessive sentence is easy to correct.").
Accordingly, we vacate Christopher's sentence and remand
so that the district court may impose an individual sentence on
each of the two counts of conviction.
V. Conclusion
For the foregoing reasons, we affirm the convictions of
all three Defendants. We also affirm Cummings's sentence, but we
vacate and remand Christopher's sentence so that the district court
can impose an individual sentence on each count.
AFFIRMED IN PART, VACATED AND REMANDED IN PART.
34
To the extent the district court was attempting to apply
U.S.S.G. § 3D1, which allows different counts to be grouped
together for determining the Total Offense Level, that would not
justify the imposition of a sentence on Count Nine in excess of the
statutory maximum. As we explained in United States v. Almonte-
Núñez, "Guideline calculations simply cannot usurp a maximum level
of imprisonment established by Congress. Nor does grouping by some
mysterious alchemy blend the maximum penalties for each of the
grouped counts." 771 F.3d 84, 92 (1st Cir. 2014) (internal
citation omitted).
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