Ramos-Ramos v. United States ( 2011 )

United States Court of Appeals
For the First Circuit
Nos. 09-1285, 09-1287, 09-1299
UNITED STATES OF AMERICA,
Appellee,
v.
RAFAEL FERNÁNDEZ-HERNÁNDEZ, JULIO ROSARIO-OTERO,
and ÁNGEL GONZÁLEZ-MÉNDEZ,
Defendants-Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José A. Fusté, U.S. District Judge]
Before
Torruella, Leval* and Thompson,
Circuit Judges.
Anita Hill Adames, for appellant Fernández-Hernández.
Raymond L. Sánchez-Maceira, for appellant Rosario-Otero.
Rafael Anglada-López, for appellant González-Méndez.
Thomas F. Klumper, Assistant United States Attorney, with whom
Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, were on brief, for appellee.
June 30, 2011
*
Of the Second Circuit, sitting by designation.
LEVAL, Circuit Judge. Defendants Angel González-Méndez
(“González”), Rafael Fernández-Hernández (“Fernández”), and Julio
Rosario-Otero (“Rosario”) (collectively, “Defendants”) appeal from
their convictions after jury trial. Defendants were convicted of
various conspiracy and drug charges arising out of their
involvement with a large drug distribution organization, which
operated under the name “Los Dementes” and was based in the Juana
Matos public housing project in the Cataño area of Puerto Rico.
See 21 U.S.C. §§ 841(a)(1), 846, 860. González and Fernández were
also convicted of gun charges, arising out of, inter alia, their
involvement in the April 25, 2004 killing of three unintended
victims on a public highway in a botched attempt to assassinate a
rival gang leader. See 18 U.S.C. §§ 924(c), (o). Their sentences
included prison terms of life in the cases of González and
Fernández, and in Rosario’s case, of 151 months. On appeal,
Defendants assert numerous challenges to the conduct of their trial
and imposition of their sentences, some raised by counsel, others
in pro se briefs. In the case of Rosario, we find that while the
evidence was sufficient to support his involvement in crimes of
drug conspiracy and distribution, it did not support the jury’s
findings of elevated quantities of drugs. Otherwise, we find no
error as to any defendant that would support overturning the
judgment. The judgment is therefore affirmed in part, vacated in
-2-
part, and the case remanded to the district court for re-sentencing
of Rosario.
BACKGROUND
On October 25, 2007, a grand jury returned a seven-count
indictment charging sixty-three individuals with participation in
a conspiracy dating from 1998 through 2007 to distribute narcotics
at street level in the Cataño and Guaynabo areas of Puerto Rico.
Carlos-Croz Mojica, a/k/a “Hueso,” was identified as the principal
leader of the drug-selling organization, which used the name “Los
Dementes.” The indictment identified the Juana Matos Public
Housing Project (“Juana Matos”) as its base of operations, where
Los Dementes members used apartments to “store, package, and
process” narcotics, including heroin, cocaine, cocaine base
(“crack-cocaine”), and marijuana, for sale at drug points located
inside and outside Juana Matos.
On August 22, 2008, a grand jury returned a superseding
indictment, which in major part repeated the charges asserted in
the earlier indictment. It charged González, Fernández, and
Rosario, among other co-defendants, with: (1) conspiracy to possess
controlled substances with intent to distribute, in violation of 21
U.S.C. §§ 841(a)(1), 846, 860 (Count I); (2) aiding and abetting
the possession with intent to distribute of (i) at least one
kilogram of heroin, (ii) at least fifty grams of crack-cocaine,
(iii) at least five kilograms of cocaine, and (iv) a detectable
-3-
amount of marijuana, within 1000 feet of a public housing project
or school,1 in violation of 21 U.S.C. §§ 841(a)(1), 860 (Counts II
- V); and (3) using or carrying a firearm “during and in relation
to any . . . drug trafficking crime,” in violation of 18 U.S.C. §
924(c)(1)(A) (Count VI), and conspiring to commit an offense under
§ 924(c), in violation of 18 U.S.C. § 924(o) (Count VII). The
only offense charged in the superseding indictment that was not
charged in the original indictment was Count VII, conspiracy under
§ 924(o) to use or carry a firearm during and in relation to a drug
trafficking crime. The superseding indictment charged, as an overt
act in furtherance of this conspiracy, that: “[O]n or about April
25, 2004, in Cataño, Dorado, and elsewhere within Puerto Rico,”
defendants, including Gonzales and Fernández, “carried and used
firearms, to include fully automatic pistols and rifles (machine
guns).” (In relation to this overt act, the government’s evidence
at trial showed that González and Fernández, along with other Los
Dementes members, killed three bystanders in a failed attempt to
murder a rival gang leader.)
Most of the defendants named in the indictments pled guilty.
González, Fernández, and Rosario proceeded to trial on October 1,
1
21 U.S.C. § 860 establishes enhanced penalties for “[a]ny person
who violates section 841(a)(1) . . . by distributing, possessing
with intent to distribute, or manufacturing a controlled substance
in or on, or within one thousand feet of, the real property
comprising a public or private elementary, vocational, or secondary
school or . . . housing facility owned by a public housing
authority . . . .” 21 U.S.C. § 860(a).
-4-
2008. The government’s theory was that González, prior to his
arrest for bank robbery in 2004, owned a drug point outside of
Juana Matos in the Vietnam Ward in Cataño and that he operated this
drug point as part of the Los Dementes organization; that Fernández
was a seller and enforcer for Los Dementes, working principally at
González’s Vietnam Ward drug point and eventually taking over that
operation; and that Rosario was also a member of Los Dementes, who
owned a drug point outside of Juana Matos in either the Amelia or
the Vietnam Ward.
At trial, the government presented the testimony of several
FBI agents and Puerto Rico Police Department (“PRPD”) officers who
were tasked to the Los Dementes investigation. They testified to,
inter alia, surveillance, controlled buys, and the seizure of
drugs, cash, and weapons at the Juana Matos housing complex. The
government’s evidence linking Defendants to the conspiracy was
primarily the testimony of three cooperating witnesses: Alexis
García-Heredia, a Los Dementes member, who testified to selling
drugs at González’s drug point in the Vietnam Ward and
participating with González and Fernández in the April 2004 killing
(he was one of the shooters); William Rosario-Garcia (“William
Rosario”), a co-defendant, who testified for the government to
performing various errands on behalf of Los Dementes members at
Juana Matos; and Joaquin Casiano, an informant placed by the FBI in
Juana Matos for several months in 2005. We discuss the evidence at
-5-
trial in greater detail in connection with the Defendants’ various
claims of error.
Following Rule 29 motions, the court dismissed the gun charges
(counts VI and VII) against Rosario for insufficient evidence. It
also dismissed the claim for forfeiture against all the defendants
(count XIII). On October 17, 2008, after approximately ten days of
trial, the jury returned guilty verdicts against all three
defendants. It found González guilty of the conspiracy charge, the
substantive heroin, crack-cocaine, and cocaine charges, and the gun
charges under §§ 924(c) & (o). Fernández was found guilty of the
same, excepting the heroin charge, of which he was acquitted.
Rosario was found guilty of the conspiracy and the substantive
cocaine and crack-cocaine charges.2 On the marijuana charge, all
three defendants were acquitted.
The court held sentencing hearings on February 2, 2009. In
determining González’s and Fernández’s guidelines range, the
district court applied United States Sentencing Guidelines §
2D1.1(d), the “murder cross-reference,” which provides: “If a
victim was killed under circumstances that would constitute murder
under 18 U.S.C. § 1111 . . . apply [the level for first or second
degree murder] as appropriate . . . .” The court sentenced
2
On each of the substantive drug counts, the jury convicted
Defendants of possessing with intent to distribute specified drug
quantities: at least one hundred fifty grams of crack-cocaine, at
least five kilograms of cocaine, and as to González, at least one
kilogram of heroin.
-6-
González and Fernández to life imprisonment. The court sentenced
Rosario to 151 months imprisonment, which was above the statutory
mandatory minimum of ten years in connection with the drug
offenses, see 21 U.S.C. § 841(b)(1)(A), but at the bottom of his
guidelines range.
DISCUSSION
I. Jury Notes
Defendants argue, for the first time on appeal, that the
district court violated their Sixth Amendment right to counsel as
well as Federal Rule of Criminal Procedure 43 by responding to
notes received from the jury during deliberations without alerting
counsel to the fact of the notes and outside of the presence of
Defendants and their counsel. The government concedes that the
district court erred procedurally, but contends that the Defendants
were not prejudiced by the violations. We agree.
On October 17, 2008, the court charged the jurors, and at 2:15
p.m. sent them to deliberate. The court advised the parties to
“Stay around in the courthouse. In case we need you, we’ll call
from outside.” The court received a note from the jury at 3:15
p.m. In this note, marked as Note #2,3 the jury requested (in
3
Fernández argues through counsel (who was not trial counsel) that
the record reveals that the court never “took care of” or responded
to “Jury Note One.” Fernández Br. at 9. This is not correct. The
record reveals that on October 10, 2008, during the lunch recess,
the jury sent a note to the court, marked as Note #1, asking that
two questions be put to government witness William Rosario. After
receiving the note from the jury, the court read the questions to
-7-
Spanish) a copy of the transcript of the testimony of the
cooperating witness García-Heredia. The court immediately
responded in writing, “The transcript is not available, it would
have to be prepared,” and “You should first rely on your collective
memory.” The government concedes that the first part of the
court’s response was inaccurate: a copy of the transcript of
García-Heredia’s testimony had been posted on the court’s
electronic filing system on October 9, 2008, and accordingly, was
available to be read back to the jury. A second note was received
at 3:18 p.m. In this note, marked as Note #3, the jury requested
(this time in English) a transcript of García-Heredia’s grand jury
testimony. The court immediately responded in writing, “This
testimony is not in evidence – no party proposed it.”
At 4:11 p.m., trial reconvened, and the court informed counsel
that the jury had reached a verdict. Prior to reading the verdict,
the court called counsel to a sidebar and explained that it had
received and responded to Notes #2 and #3. The court said that it
had tried unsuccessfully to reach counsel, and showed the notes.
The court advised counsel it had provided a “[b]oiler plate type of
counsel, heard argument, and determined that it would ask the
questions in a neutral way. There was no objection. Upon resuming
trial, the court questioned the witness. Fernández’s counsel
appears to be confusing the first note received during
deliberations, which was marked as Note #2 but which was identified
in the minutes pertaining to that trial day as “note 1,” with the
earlier note, which, as noted above, was received and taken care of
during trial.
-8-
answer of the type suggested always when these type of things
happen, okay?” González’s counsel responded, “Yes, sir.”
Fernández’s counsel made a comment on the content of the notes.
There was no objection or further inquiry by any counsel into the
substance of the court’s responses to the notes.
We have held that “[a] district court’s failure to attempt to
inform defense counsel about the existence of a jury note, and
further failure to solicit defense counsel’s input regarding any
response to such a note, violates Rule 43 of the Federal Rules of
Criminal Procedure.” United States v. Gonzalez-Melendez, 570 F.3d
1, 2 (1st Cir. 2009); see United States v. Ofray-Campos, 534 F.3d
1, 17 (1st Cir. 2008); see also Rogers v. United States, 422 U.S.
35, 39 (1975) (noting that the court’s prior rulings, and those
interpreting Rule 43, “make clear . . . that the jury’s message
should have been answered in open court and that petitioner’s
counsel should have been given an opportunity to be heard before
the trial judge responded”); cf. Fed. R. Crim. P. 43(a)(2) (the
defendant’s presence is required at “every trial stage, including
jury impanelment and the return of the verdict”).4 There is no
4
In United States v. Maraj, 947 F.2d 520 (1st Cir. 1991), we set
forth the proper procedure for handling a note from the jury:
The preferred practice for handling a jury message should
include these steps: (1) the jury’s communique should be
reduced to writing; (2) the note should be marked as an
exhibit for identification; (3) it should be shown, or read
fully, to counsel; and (4) counsel should be given an
opportunity to suggest an appropriate rejoinder. If the note
-9-
question that, in its procedure in responding to Notes #2 and #3,
the district court erred. Counsel should have been advised of the
notes and been offered the opportunity to suggest responses (or
object to the court’s proposed responses).5 However, the
Defendants did not object when the court revealed the jury notes.
Although counsel did not learn of the notes until the jury had
reported that it had reached a verdict, the possibility of curing
the error remained open as the court could have told the jury that
the referenced transcript did exist, caused it to be read to them,
and instructed them to continue to deliberate. Defendants’ failure
to bring the claim of error to the district court’s attention
results in the forfeiture of the claim. See United States v.
requires a response ore tenus, the jury should then be
recalled, the note read into the record or summarized by the
court, the supplemental instructions given, and counsel
afforded an opportunity to object at sidebar. If, however, the
note is to be answered in writing, the court’s reply should be
marked as an exhibit for identification, the judge should read
both the jury’s note and the reply into the record, and
counsel should be afforded an opportunity to register
objections before the reply is transmitted to the jury.
Id. at 525; see Ofray-Campos, 534 F.3d at 17 (“The rules for
handling a jury note that are set forth in Maraj are
well-settled.”).
5
Although the court told counsel at the time it revealed the notes
that it had attempted unsuccessfully to contact counsel, according
to the record only one minute passed between the court’s receipt of
the notes and its responses to the jury. While the need for a
rapid response may vary depending on a number of circumstances, in
this case, especially in view of the unclear status of the trial
transcript, no good reason appears why the court should not have
made more than one minute’s effort to reach counsel.
-10-
Rodríguez-Lozada, 558 F.3d 29, 38 (1st Cir. 2009).
Pursuant to Federal Rule of Criminal Procedure 52(b), “[a]n
appellate court may, in its discretion, correct an error not raised
at trial only where the appellant demonstrates that (1) there is an
error; (2) the error is clear or obvious, rather than subject to
reasonable dispute; (3) the error affected the appellant’s
substantial rights, which in the ordinary case means it affected
the outcome of the district court proceedings; and (4) the error
seriously affects the fairness, integrity or public reputation of
judicial proceedings.” United States v. Marcus, ___ U.S. ___ , 130
S. Ct. 2159, 2164 (2010) (internal quotation marks and alterations
omitted); see United States v. Duarte, 246 F.3d 56, 60 (1st Cir.
2001). We see no reason to believe this error either affected
Defendants’ substantial rights or affected the fairness or
integrity of the trial.
With respect to Note #3, the court properly responded that
García-Heredia’s grand jury testimony was not in evidence and could
not be provided. Defendants cannot show they were prejudiced, as
nothing more could have or would have been done if counsel had been
made aware of the jury’s inquiry prior to the court’s response.
See Maraj, 947 F.2d at 526 (error in handling jury note did not
adversely affect defendant’s substantial rights, because the
judge’s response to the note was satisfactory and “had the full
note been contemporaneously disclosed, there was nothing more that
-11-
defense counsel could appropriately have done to protect their
client’s rights”).
With respect to Note #2, Defendants have not shown that the
court’s incorrect response was prejudicial or that it affected the
fairness or integrity of the proceedings. There was no error in
instructing the jury that they should rely on their collective
memory of García-Heredia’s trial testimony. Even if the court had
been aware of the existence of the transcript, it would not
necessarily have been read to the jury. Trial courts have
discretion whether to do so. See United States v. Akitoye, 923
F.2d 221, 226 (1st Cir. 1991) (“[W]e have long and repeatedly held
that rereading testimony during jury deliberations rests in the
presider’s sound discretion.”). Appellants argue that the verdict
might have been different had the testimony been provided. That
is, of course, a possibility, but they make no persuasive argument
supporting such a likelihood. García-Heredia’s testimony was
decidedly unfavorable to the Defendants, and they do not show that
it was impeached in cross-examination in any significant fashion,
other than the obvious point of his aiding his own case by
testifying against the Defendants, which the Defendants forcefully
communicated to the jury in their summations. The procedural error
did not prejudice the Defendants.
II. Voir Dire of Prospective Jurors
Rosario, in a supplemental pro se filing, also argues that the
-12-
court violated his constitutional rights as well as Federal Rule of
Criminal Procedure 43 by questioning certain prospective alternate
jurors outside of his presence. We disagree. The court’s
questioning of the prospective jurors outside the presence of the
Defendants was justified, and, in any event, Rosario waived any
right to be present pursuant to Rule 43 by his failure to object at
trial.
After selection of twelve jurors and four alternate jurors,
the court called counsel to a side bar. The judge told them that
he and a security officer observed two of the alternate female
jurors laughing and sticking their tongues out at Rosario “like, ‘I
know you.’” The court determined that it would question the two
alternates, and ordered that the Defendants be removed from the
courtroom. There was no objection. With counsel for each of the
Defendants present, the court questioned the two alternate female
jurors, who said that they did not know any of the Defendants. The
court decided, nevertheless, to excuse the two alternates.
A criminal defendant has a constitutional right to be present
at “all stages of the trial where his absence might frustrate the
fairness of the proceedings.” See, e.g., Faretta v. California,
422 U.S. 806, 819 n.15 (1975). As noted above, Federal Rule of
Criminal Procedure 43 further provides that a defendant must be
present at “every trial stage, including jury impanelment and the
return of the verdict,” Fed. R. Crim. P. 43(a)(2), except at stages
-13-
where, inter alia, “[t]he proceeding involves only a conference or
hearing on a question of law,” Fed. R. Crim. P. 43(b)(3).
Defendants need not be expressly warned of their rights under Rule
43, and a defendant’s failure to assert his right to be present or
to object to a purported violation of the rule may result in a
valid waiver of the right. See United States v. Gagnon, 470 U.S.
522, 529 (1985); United States v. Peterson, 385 F.3d 127, 137 (2d
Cir. 2004); United States v. Brantley, 68 F.3d 1283, 1291 (11th
Cir. 1995).
In Gagnon, a multi-defendant trial, the Supreme Court rejected
a claim that a conference attended by one of the defense counsel
and a juror, regarding a concern expressed by that juror that one
of the defendants “had been sketching [portraits of] jury members
during the trial,” violated the defendants’ constitutional right to
be present. 470 U.S. at 523. The Supreme Court recognized that
“[t]he mere occurrence of an ex parte conversation between a trial
judge and a juror does not constitute a deprivation of any
constitutional right.” Id. at 526 (quoting Rushen v. Spain, 464
U.S. 114, 125-26 (1983) (Stevens, J. concurring in the judgment)).
The Court explained that the conference at issue, “a short
interlude in a complex trial[,] . . . was not the sort of event
which every defendant had a right personally to attend.” Id. at
527. The defendants “could have done nothing had they been at the
conference, nor would they have gained anything by attending.” Id.
-14-
As in Gagnon, Rosario’s absence from the bench conference did
not deprive him of any constitutional right. It did not detract
from his defense or in any way affect the fairness of his trial.
See id. at 526 (explaining that due process concerns are implicated
“[w]henever [the defendant’s] presence has a relation, reasonably
substantial, to the [fullness] of his opportunity to defend against
the charge . . . [and] to the extent that a fair and just hearing
would be thwarted by his absence, and to that extent only”).
Rosario was removed (as were his co-defendants) for only a brief
period of time, and his interests were sufficiently protected by
his counsel’s presence at the conference. See United States v.
Bertoli, 40 F.3d 1384, 1397, 1399-1401 (3d Cir. 1994); see also
United States v. Collazo-Aponte, 216 F.3d 163, 182 (1st Cir. 2000)
(finding no Rule 43 violation where the defendant was “restricted
from full participation in a limited number of sidebar conferences
that occurred during voir dire” but otherwise was “present at, and
fully participated in, his trial”), vacated on other grounds, 532
U.S. 1036 (2001).
Furthermore, even assuming Rosario had a statutory right to be
present under Rule 43 in these circumstances (a proposition we
doubt), he waived that right by remaining silent. When the court
ordered that the Defendants be removed from the courtroom, Rosario
had the opportunity to object, but did not. As in Gagnon,
Rosario’s “total failure to assert [his] right[] to attend the
-15-
conference with the juror sufficed to waive [it] under Rule 43.”
Gagnon, 470 U.S. at 529. “If a defendant is entitled under Rule 43
to attend certain ‘stages of the trial’ which do not take place in
open court, the defendant . . . must assert that right at the time
. . . [and] may not claim it for the first time on appeal from a
sentence entered on a jury’s verdict of ‘guilty.’” Id.; see
Peterson, 385 F.3d at 138; Collazo-Aponte, 216 F.3d at 182.
III. Right to Jury Selected from Fair-Cross Section of the
Community
González and Rosario argue, for the first time on appeal, that
they were deprived of their Sixth Amendment right to a trial before
a jury representing a fair cross-section of the community. They
argue that the jury that convicted them was not drawn from a fair
cross section of the community, as it was an English-speaking,
“white-collar,” and “highly professionally oriented” group drawn
from a “universe of less than 16% of” their peers. The local plan
for the District of Puerto Rico requires that jurors be
sufficiently proficient in English to render satisfactory jury
service, see, e.g., United States v. Candelaria-Silva, 166 F.3d 19,
29-30 (1st Cir. 1999), and yet, according to Defendants, eighty
percent of Puerto Rico residents have little command of English.
(The eighty percent figure is based on certain U.S. census surveys
cited in Defendants’ briefs on appeal.) Because this contention,
at least as it pertained to the composition of the trial jury, was
not raised in the district court, it is subject to review only for
-16-
plain error. Even if it were properly preserved for review,
Defendants’ contention is foreclosed by our precedents, which have
repeatedly upheld the English proficiency requirement against such
challenges in Puerto Rico district court. See United States v.
Rodríguez-Lozada, 558 F.3d 29, 38 (1st Cir. 2009) (concluding that
the English proficiency requirement was “justified by the
overwhelming national interest served by the use of English in a
United States court” (quoting United States v. González-Vélez, 466
F.3d 27, 40 (1st Cir. 2006))); United States v. Dubón-Otero, 292
F.3d 1, 17 (1st Cir. 2002). Defendants offer no persuasive reason
for reconsidering our prior rulings.
IV. Spanish Translation of Jury Instructions
González argues for the first time on appeal that his right to
a fair trial was violated because the district court did not
provide the jury with a Spanish translation of the jury
instructions. González’s argument is forfeited for failure to
raise it below, and is in any event foreclosed by our precedents.
In United States v. Gonzalez-Maldonado, 115 F.3d 9 (1st Cir. 1997),
we explained that the practice of charging the jury using non-
English words was “inadvisable and should be discouraged” and
instructed “district courts to frame instructions in English.” Id.
at 18-19. As noted above, the governing rules require that all
jurors speak, read, and write in English with proficiency. At the
jury selection phase, the Defendants were not rebuffed in any
-17-
effort to test any juror’s comprehension of English. González has
failed to show any error (let alone plain error).
V. Sufficiency of the Evidence
Defendants challenge the sufficiency of the evidence
supporting their convictions. We review de novo the district
court’s denial of a motion made under Rule 29 for judgment of
acquittal. United States v. Giambro, 544 F.3d 26, 29 (1st Cir.
2008). In doing so, we view the evidence in the light most
favorable to the jury’s guilty verdict and assess whether a
reasonable factfinder could have concluded that the defendant was
guilty beyond a reasonable doubt. See United States v. Lipscomb,
539 F.3d 32, 40 (1st Cir. 2008). We conclude that the evidence was
sufficient to support the jury’s verdict as to González and
Fernández. However, in the case of Rosario, we conclude that while
the evidence was sufficient to support the jury’s verdict as to his
involvement in crimes of drug conspiracy and distribution, it did
not support the jury’s findings of elevated quantities of drugs.
Accordingly, we vacate the district court’s judgment as to Rosario
to the extent it included the elevated quantities, and remand for
re-sentencing.
1) González and Fernández.
The evidence was clearly sufficient to show that González and
Fernández were involved in the Los Dementes drug distribution
operation, which operated out of the Juana Matos housing project
-18-
and sold drugs at a drug point owned by González on F street in the
Vietnam Ward. Much of the evidence was provided by the testimony
of García-Heredia, who testified that he had been a member of Los
Dementes and sold drugs, including heroin, cocaine, crack-cocaine,
and marijuana, for the organization. He identified González as
the owner of the drug point, and Fernández as having sold drugs and
having acted as an enforcer at the drug point.6 According to
García-Heredia, drugs were routinely delivered from Juana Matos to
the Vietnam location by Los Dementes principals, and these drugs
were sold under so-called “brand names,” including Pokemon, that
were exclusive to Los Dementes drug points. (Other evidence
established the large quantities supporting the jury’s verdict.)7
García-Heredia also testified to his involvement, together
with González and Fernández, in the April 25, 2004 murders, which
formed the basis for the convictions under Sections 924(c) and (o).
As part of a war between Los Dementes and a rival drug
organization, Las Palmas, Los Dementes members attempted to kill
Las Palmas’s leader, Gilberto El Reyes. According to García-
Heredia, while González drove the car, he and Fernández opened fire
6
There was also testimony that, by May 2004 (following González’s
arrest for bank robbery), Fernández operated the Vietnam Ward drug
point and that drugs at Juana Matos were packaged for Fernández to
sell in the Vietnam Ward.
7
During a two-month surveillance of the Juana Matos drug points,
the evidence established that the drug conspiracy sold “about
71,000 decks of heroin, 62,000 baggies of cocaine, 300,000 vials of
‘crack,’ and 60,000 baggies of marijuana.”
-19-
(he with two semi-automatic .38 revolvers and Fernández with an AK-
47) on another car they believed belonged to El-Reyes’s son. Three
passengers in the car were killed. (It turned out that the car did
not belong to El Reyes’s son; none of the victims were involved in
the drug trade.)
González and Fernández argue that the convictions under 21
U.S.C. § 860 must be vacated because the drug sales in the Vietnam
Ward were not within 1000 feet of a public housing project or
school, as they contend is required by that statute.8 This
argument is without merit. Section 860 does not require that the
drug sales take place within 1000 feet of a housing project or
school. The charges under § 860 included possession of drugs
within 1000 feet of a hosing project or school, with intent to
distribute. The evidence showed that González and Fernández, with
intent to distribute, aided and abetted in such possession within
1000 feet of a protected location (in this case, Juana Matos and
two schools located therein).9 See United States v. DeLuna, 10
8
21 U.S.C. § 860 provides in relevant part that: “Any person who
violates section 841(a)(1) of this title . . . by distributing,
possessing with intent to distribute, or manufacturing a controlled
substance in or on, or within one thousand feet of, the real
property comprising a public or private elementary, vocational, or
secondary school or . . . housing facility owned by a public
housing authority . . . is subject to (1) twice the maximum
punishment authorized by section 841(b) of this title . . . .”
9
Fernández argues in a supplemental pro se filing that the
convictions under Sections 924(c) and (o) must be vacated because
there was insufficient evidence of a “nexus” between the April 25,
2004 killings and the drug trafficking charges. We disagree. The
-20-
F.3d 1529, 1534-35 (1st Cir. 1993).
2) Rosario.
Rosario was convicted of drug conspiracy, and of possession
with intent to distribute at least one hundred fifty grams of
crack-cocaine and five kilograms of cocaine. See 21 U.S.C. §§
841(a)(1), 846, 860. We conclude first that the evidence was
sufficient to show that Rosario participated in the drug conspiracy
and that he possessed or aided and abetted the possession of drugs
at Juana Matos with intent to distribute.
The evidence of Rosario’s participation came in principally
through two witnesses: Casiano and William Rosario. Casiano was
an FBI informant placed in Juana Matos as an outside observer for
approximately two months, from February through April 2005.
Casiano testified that he saw Rosario attend what Casiano
characterized as a March 2005 peace meeting between Los Dementes
and Las Palmas members at Juana Matos, and that when he saw Rosario
at the housing complex, “[h]e would always be with Hueso.”10
evidence showed that González and Fernández attempted to murder El-
Reyes as part of a war between the two drug organizations, and did
so with the participation of other Los Dementes members. The
attempted murder was sufficiently connected to the drug trafficking
crime to satisfy Section 924(c)’s “during and in relation to”
requirement.
10
In the district court, Rosario moved for a mistrial on the
grounds that the government engaged in misconduct by permitting
Casiano to testify allegedly falsely about Rosario’s presence at
the peace meeting. The basis for this accusation was that Casiano
had previously told the government that he could not identify
Rosario on the basis of a photo given to him. The court summarily
-21-
Casiano testified that “Hueso was the leader, and not everybody got
to hang out with him.” According to Casiano, only close associates
in the drug business could “hang out” with Hueso.
William Rosario, the cooperating witness, testified to
performing various drug-related tasks and errands for members of
Los Dementes at Juana Matos. He confirmed that the defendant
Rosario “would spend all of his time with, you know, with the big
people in the organization, with Hueso.” “More than twice” he saw
the defendant Rosario in an apartment in “Building 50” – one of the
principal apartments where Los Dementes members would prepare drugs
– at times when drugs were being prepared. He saw the defendant
Rosario there with other members of the organization. According to
William Rosario’s testimony, the apartment was outfitted with
steel-plated doors and video cameras for surveillance. He
testified that there were “a lot of drugs and a lot of money” at
the apartment. He estimated that Los Dementes members processed
approximately 1/4 kilogram of cocaine into crack (the equivalent of
about 1000 vials of crack) in the apartment approximately three or
four times per week, and that he often saw approximately $5000 in
denied the motion, and Rosario appeals from the denial. We see no
basis for grant of new trial, nor any showing of misconduct on the
current record. Rosario was given an adequate opportunity to
develop this (or any other) inconsistency on cross-examination.
Casiano testified that, although he did not recognize Rosario from
the picture, he realized in the courtroom that the defendant was
“Julio Hotdog” (Rosario’s nickname), who he remembered from his
time at Juana Matos. The government was entitled to solicit this
testimony and the jury was entitled to credit it.
-22-
cash being counted there (by machine).
William Rosario also testified about two specific drug-related
interactions he had with the defendant Rosario. In the first, the
defendant Rosario took William to Rosario’s aunt’s house in a
neighboring housing complex, where Rosario had William “cook” and
“taste” (tasks he often performed at Juana Matos) a small sample
from a bag of cocaine (the bag’s weight was approximately 1/8
kilogram). In the second, William washed a car for Rosario, and in
return, Rosario paid him with six or seven vials of crack. In
response to a question from the jury as to whether he knew if “in
the Building 50 they prepare drugs for Julio Rosario,” William
testified: “I could not tell you that I was there when they were
preparing drugs for Julio. But I can say that on one day, when I
washed a car for him, he told me that after I finished, that he was
going to go to apartment 50 and that he was going to pay me with
what they were preparing for him.”
Finally, the government introduced evidence that, following
the October 2007 indictment and arrests, Rosario fled and took on
a new identity. When he was apprehended in 2008 by the U.S.
Marshals Service, he was found in possession of a fake driver’s
license and social security card (both in the name of “Omar
Palma”). When confronted with the fake documents, Rosario admitted
that “he was assuming the identity of Mr. Omar Palma while being a
fugitive.” The government argued – and the jury was entitled to
-23-
find – that Rosario’s attempt to evade arrest demonstrated a
consciousness of guilt.11
Taken together, and in the light most favorable to the
verdict, this evidence was sufficient to support the jury’s
findings that Rosario was guilty of participation in the drug
distribution conspiracy and of aiding and abetting the possession
of drugs with intent to distribute.12
11
Rosario argues that the district court erred in admitting
evidence of his flight because (1) the evidence was admitted
without the necessary showing of extrinsic evidence of guilt, and
(2) the evidence was highly prejudicial and should have been
excluded pursuant to Fed. R. Evid. 403. We reject these
contentions. “A district court is afforded considerable leeway
when determining whether evidence of a defendant’s flight is
accompanied by a sufficient factual predicate . . . [and] is
afforded similar latitude in determining whether the evidence
passes the Rule 403 balancing test.” United States v. Benedetti,
433 F.3d 111, 116 (1st Cir. 2005). We believe there was sufficient
extrinsic evidence of Rosario’s guilt to support admission of the
flight evidence. Nor can we say that the district court acted
outside of its discretion in admitting the flight evidence pursuant
to Rule 403. We note further that the district court instructed
the jury – instructions we presume it followed – that flight alone
is not a sufficient basis to convict, but rather should be
considered in light of all the evidence presented at trial. We
discern no reversible error in connection with the admission of the
flight evidence.
12
We note that Rosario testified as part of the defense case,
denying his involvement in any drug-related activities at Juana
Matos. He denied that Los Dementes was a drug distribution
organization. He also implausibly asserted that Hueso was simply
a “recreational leader” at the housing complex. The jury was
entitled to disbelieve the defendant’s testimony and use its
disbelief to supplement the other evidence against him. See United
States v. Abou-Saada, 785 F.2d 1, 10 (1st Cir. 1986); see also
United States v. Velasquez, 271 F.3d 364, 374 (2d Cir. 2001)
(defendant’s “incredible” testimony “transform[ed] the evidence in
this case from borderline to sufficient”).
-24-
On the other hand, we conclude that the evidence was
insufficient to support a finding, beyond a reasonable doubt, that
Rosario was responsible for the elevated drug quantities of which
he was convicted, i.e., at least one hundred fifty grams of crack-
cocaine and five kilograms of cocaine. The government relied on
testimony that Rosario, like González and Fernández, owned a drug
point outside of Juana Matos, which, if proved, would presumably be
sufficient to show responsibility for large quantities. There was,
however, no competent evidence of his ownership of a drug point.
William Rosario testified that “from what [he] knew, [Rosario] had
a crack point” outside of Juana Matos. When asked on direct
examination how he knew Rosario was a drug point owner, William
Rosario did not give any intelligible explanation. On cross-
examination, William Rosario acknowledged that his basis for
believing Rosario had a drug point was “because somebody told
[him].” William Rosario accordingly had no competent basis for
testifying that Rosario had a drug point. Nor has the government
identified for us any other evidence from which a rational trier of
fact could conclude that Rosario had a drug point.
We recognize that there was evidence of large quantities of
drugs, money, and drug dealing paraphernalia at the apartment in
Building 50, and there was evidence that Rosario was seen “more
than twice” in that apartment, including at least one occasion when
drugs were being prepared. But there was no evidence showing that,
-25-
on any occasion when Rosario was at the apartment, he would
inevitably have seen large-scale operations being conducted there.
Nor did the evidence show Rosario’s awareness of the continuity of
sustained drug preparation there. While the government might have
been able to elicit such testimony with properly focused questions,
it did not do so. In order to support a criminal conviction,
evidence must be sufficient to support a finding beyond a
reasonable doubt of the essential elements. Without doubt there
was evidence from which jurors could speculate as to Rosario’s
awareness of the large-scale operation in which he participated,
but the evidence as to him was sketchy and could not support a
finding beyond a reasonable doubt.
Accordingly, while we affirm Rosario’s convictions on the
various drug offenses, we vacate the judgment to the extent that it
incorporated convictions based on the jury’s findings of elevated
quantities. Because Rosario’s overall sentence was predicated in
part on these convictions for elevated quantities, and because the
charges alleging elevated quantities included mandatory minimum
sentences,13 we vacate Rosario’s sentence. At Rosario’s sentencing
hearing, the district court treated the jury’s findings of elevated
13
The jury found the Defendants responsible for drug quantities of
at least five kilograms of cocaine and at least one hundred fifty
grams of crack-cocaine. These quantities, under 21 U.S.C. §
841(b)(1)(A), trigger a term of imprisonment of at least ten years
and not more than life. See United States v. Cruz-Rodriguez, 541
F.3d 19, 32 n.11 (1st Cir. 2008).
-26-
quantities as determinative. As set forth above, there was
insufficient evidence to support the jury’s findings as to
quantity. On imposing sentence upon remand, the district court
shall make any necessary findings as to drug quantities
attributable to Rosario, in accordance with our decisions in United
States v. Colon-Solis, 354 F.3d 101 (1st Cir. 2004), and United
States v. Correy, 570 F.3d 373 (1st Cir. 2009).14
VI. Sentencing Challenges
We review a “district court’s sentence for reasonableness,
which involves a procedural as well as a substantive inquiry.”
United States v. Politano, 522 F.3d 69, 72 (1st Cir. 2008). The
first task is to determine whether the district court made any
procedural errors “such as failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors,
selecting a sentence based on clearly erroneous facts or failing to
adequately explain the chosen sentence – including an explanation
for any deviation from the Guidelines range.” Gall v. United
States, 552 U.S. 38, 51 (2007); United States v. Stone, 575 F.3d
83, 89 (1st Cir. 2009). In addition, we review the substantive
reasonableness of the sentence imposed. The standard of review as
14
This opinion expresses no view as to the quantities the
sentencing court may properly attribute to Rosario when the
standard, unlike the standard for conviction, is preponderance of
the evidence.
-27-
to substantive reasonableness is abuse of discretion. Politano,
522 F.3d at 72. “[W]hen a defendant fails to preserve an objection
below, the plain error standard supplants the customary standard of
review.” United States v. Dávila-González, 595 F.3d 42, 47 (1st
Cir. 2010).
González contends that the district court’s imposition of a
term of life imprisonment was procedurally unreasonable because it
was done without proper consideration of the sentencing factors
outlined in 18 U.S.C. § 3553(a), was based on an erroneous
assumption that the court was compelled to adhere to the guideline
range, and was substantively unreasonable.15 We reject these
contentions.
The court determined that González’s guidelines range was life
imprisonment, based on an offense level of 43 and a Criminal
History Category of II (the result of a prior guilty plea to bank
robbery and gun charges).16 If the court finds by a preponderance
of the evidence that a murder was committed in furtherance of a
drug conspiracy, the Guidelines provide for a base offense level of
43. See U.S.S.G. § 2D1.1(d)(1) (“If a victim was killed under
15
González was sentenced to 480 months imprisonment on Count I
(drug conspiracy); life imprisonment on Counts II, III, and IV (the
substantive drug charges); 240 months imprisonment on Count VII
(the violation of 18 U.S.C. § 924(o)), to run concurrently with the
other counts; and life imprisonment on Count VI (the violation of
18 U.S.C. § 924(c)), to run consecutively with the other counts.
16
U.S.S.G. § 2A1.1 states that the base offense level for first
degree murder is 43.
-28-
circumstances that would constitute murder under 18 U.S.C. § 1111had such killing taken place within the territorial or maritime
jurisdiction of the United States, apply § 2A1.1 (First Degree
Murder) . . . .”); see also United States v. Avilés-Colón, 536 F.3d
1, 27 (1st Cir. 2008). The evidence of the April 25, 2004 murders
made this offense level applicable.17 Nor is there reason to doubt
that the court recognized its obligation to consider the obligatory
sentencing factors of 18 U.S.C. § 3553(a), or the advisory nature
of the Guidelines since Booker. See 2/2/09 Sentencing Hr’g Tr.
(González) at 43-44 (“We have looked at this in the context of the
advisory guidelines. We have looked at it in our own mind in the
context of 3553(a). What is really salient in the analysis is the
– is the issue of total disregard for the life of others,
especially the total loss of three innocent lives that were
murdered on a well-trafficked road in Puerto Rico.”) That the
court did not discuss mitigating factors advocated by González is
of no significance. Sentencing judges are not obligated to set
forth their appraisal of the pertinent factors. Dávila-González,
595 F.3d at 48. We find no procedural unreasonableness in the
court’s imposition of sentence. Nor do we find any reason to doubt
the substantive unreasonableness of the sentence imposed on
17
The court also determined that a four-level leadership
enhancement applied pursuant to U.S.S.G. § 3B1.1(a), because the
defendant was a leader of criminal activity involving five or more
participants. Because 43 is the highest possible offense level
under the Guidelines, González’s offense level remained 43.
-29-
González, especially in view of his wanton killings.
Fernández, in a pro se supplemental brief, also challenges the
reasonableness of his sentence. Fernández’s principal objection is
to the application of the Guidelines’ murder cross-reference in
determining his guidelines range. As discussed above in connection
with González’s sentence, evidence of Fernández’s participation in
the April 25, 2004 murders made a base offense level of 43
applicable. See U.S.S.G. § 2D1.1(d)(1). We have considered
Fernández’s remaining sentencing arguments, and find them without
merit.18
VII. Notice of Charges
González and Fernández argue that the superseding indictment
failed to provide adequate and timely notice of the charges
relating to the April 25, 2004 murders and thus violated their
Sixth Amendment rights to notice of accusation. González raises
the argument for the first time on appeal.19 Fernández in the
district court did not object to the filing of the new charges, but
moved to exclude evidence of the murders. Regardless of the proper
standard of review, we find no error.
18
Because we vacate Rosario’s sentence in its entirety, we do not
address the sentencing arguments advanced by Rosario on appeal.
19
On September 4, 2008, González, through counsel, filed an in
limine motion seeking to suppress certain video evidence relating
to the April 25, 2004 murders, which the motion described as “raw,
gruesome, and inflammatory.” The motion did not argue that
González’s Sixth Amendment rights were violated.
-30-
The charges added by the superseding indictment returned on
August 22, 2008 did not expand the scope of the evidence as to the
Defendants. The original indictment included a charge under 18
U.S.C. § 924(c), alleging their use of firearms. The only
pertinent change in the superseding indictment was to add a charge
under 18 U.S.C. § 924(o) of conspiracy to commit the violation of
§ 924(c), which set forth as an overt act that: “[O]n or about
April 25, 2004, in Cataño, Dorado, and elsewhere within Puerto
Rico,” defendants, including González and Fernández, “carried and
used firearms, to include fully automatic pistols and rifles
(machine guns).” The shooting down of the three occupants of the
car which the Defendants mistakenly believed carried the drug
rival’s son was provable under the earlier indictment without need
for the supplemental charge. The addition of this specification of
an overt act in furtherance of the Section 924(o) conspiracy did
not enlarge the admissible evidence. As the Dorado shootings in
furtherance of a drug dealing war were evidence of both the
narcotics and firearms offenses, they would have been admissible
even if the superseding indictment had not been filed.
Furthermore, the Defendants had been put on notice of this evidence
long before the filing of the superseding indictment by the
government’s designation of evidence. Defendants have not asserted
that the government’s allegedly tardy filings impaired their trial
preparation or their ability to present a defense. Nor have
-31-
Defendants argued on appeal that the district court abused its
discretion in not delaying trial to permit further investigation or
preparation. The argument is therefore forfeited. We see no basis
for disturbing the convictions of either González or Fernández on
this ground.
VIII. Hearsay Statements of Cooperating Witnesses
Defendants argue that the district court erred by
provisionally admitting alleged hearsay testimony by certain
cooperating government witnesses, without having later made a final
determination that such testimony satisfied Fed. R. Evid.
801(d)(2)(E)’s requirements for the admission of co-conspirator
testimony.20 The argument is without merit.
On the first day of trial, the government elicited testimony
from García-Heredia about certain statements made to him by
González about their intention to go ahead with the attempted
assassination of the Las Palmas leader. González’s counsel
objected to the testimony on the grounds that it was hearsay, and
argued that for the statement to be admissible the court had to
make a finding that García-Heredia was engaged in a conspiracy with
the Defendants. The court responded that, under our precedent in
United States v. Petrozziello, 548 F.2d 20 (1st Cir. 1977), it
could make a tentative determination that González and García-
20
This argument was raised by at least González and Fernández in
Rule 29 motions filed after trial.
-32-
Heredia were members of a drug conspiracy, and if the statement was
in furtherance of the conspiracy, it could be admitted. The court
stated that it would make final determinations on these issues
after it heard all the evidence. González’s counsel agreed, and
there was no further inquiry. (This came up again during the
testimony of Casiano, with respect to statements made to him by
alleged members of the conspiracy during his undercover assignment
at Juana Matos. Fernández’s counsel objected on hearsay grounds,
and the district court made the same ruling, i.e., that it could
only make a final ruling at the close of the evidence. At the
close of the government’s case, neither the Defendants nor the
government requested a final ruling from the court on the
admissibility of any of the provisionally admitted co-conspirator
testimony under Fed. R. Evid. 801(d)(2)(E), and the court did not
make one.
Under Petrozziello, the out-of-court declaration of an alleged
coconspirator may be admitted into evidence under Fed. R. Evid.
801(d)(2)(E) if it is more likely than not that the declarant and
the defendant were members of a conspiracy when the hearsay
statement was made, and that the statement was made in furtherance
of the conspiracy. United States v. Castellini, 392 F.3d 35, 50
(1st Cir. 2004) (citing Petrozziello, 548 F.2d at 23). The trial
court is not required to decide what has come to be called in this
Circuit the Petrozziello question prior to admitting the statement,
-33-
but may admit it provisionally subject to making a final
determination at the close of all the evidence. United States v.
Ortiz, 966 F.2d 707, 715 (1st Cir. 1992).21 We ordinarily review
such determinations for clear error, but where, as here, the
defendant fails to request a final Petriozziello ruling prior to
verdict, this Court will vacate the defendant’s convictions on this
ground only upon a showing of plain error. Avilés-Colón, 536 F.3d
at 14 (“Our precedent clearly establishes that to preserve a
hearsay objection to the admission of a co-conspirator’s statement,
the objection must be renewed at the close of all of the
evidence.”); see also United States v. Perez-Ruiz, 353 F.3d 1, 12
(1st Cir. 2003); Ortiz, 966 F.2d at 715-16.
On appeal, Defendants failed to identify the allegedly hearsay
statements on which they base their claim. Absent identification
of the challenged statements, “[w]e cannot conduct effective
appellate review of . . . evidentiary ruling[s] admitting
coconspirator statements under . . . Rule 801(d)(2)(E).” United
States v. Isabel, 945 F.2d 1193, 1199 (1st Cir. 1991); see id.(finding waiver where appellants failed to identify the challenged
hearsay statements). Without specification of the statements, we
21
If at the close of the evidence the court reverses its
provisional ruling, “it may give a cautionary jury instruction or,
on motion, declare a mistrial if an instruction would not prevent
or cure the prejudice resulting from its provisional admission of
the hearsay.” United States v. Isabel, 945 F.2d 1193, 1199 n.10
(1st Cir. 1991) (citing United States v. Ciampaglia, 628 F.2d 632,
638 (1st Cir. 1980)).
-34-
cannot determine whether they were hearsay, and if so, whether the
evidence supported application of the exception for co-conspirator
statements in furtherance of the conspiracy.22
IX. Rosario’s remaining arguments
Rosario argues pro se and for the first time on appeal that
his due process rights were violated because a “selected sworn
juror was asleep from the inception of the trial.” Rosario Supp.
Br. at 8. Rosario cites to a portion of the transcript where
Rosario’s counsel alerted the trial court that one of the jurors
was “falling asleep.” At the time, Rosario did not raise any due
process objection, and therefore, such argument is at best
forfeited on appeal, subject to review only for plain error. The
trial court is not required to remove a juror who has slept and is
accorded considerable discretion in handling the matter. See,
e.g., United States v. Freitag, 230 F.3d 1019, 1023 (7th Cir.
2000); see also United States v. Newman, 982 F.2d 665, 670 (1st
Cir. 1992). A sleeping juror does not violate a defendant’s due
process rights unless the defendant can show he was prejudiced to
22
We note that, as for the statements made by González to García-
Heredia concerning plans to kill El-Reyes (to which González
objected to below), we would have no trouble concluding that the
evidence showed a conspiracy among García-Heredia, González, and
Fernández (Rosario was not implicated by this testimony), and that
the statements were made in furtherance of the conspiracy. We note
further that the statement would also be admissible, at least as to
González, as an admission of a party-opponent under Fed. R. Evid.
801(d)(2)(A).
-35-
the extent that he did not receive a fair trial. See Freitag, 230
F.3d at 1023. Rosario’s pointing out that a single juror at one
point in the trial fell asleep does not by itself establish such
prejudice, and does not support grant of new trial.
Rosario also argues for the first time on appeal that his
trial should have been severed pursuant to Federal Rule of Criminal
Procedure 14. He argues that he was prejudiced by the spillover
effects of evidence with respect to González and Fernández’s role
in the April 25, 2004 murders, in which he had no part. This
argument is forfeited as he failed to raise it below. In any
event, “[c]o-conspirators are customarily tried together absent a
strong showing of prejudice.” United States v. Perkins, 926 F.2d
1271, 1280 (1st Cir. 1991). On the current record, we have no
reason to think that had a motion to sever been made, the district
court would have been compelled to grant it. See United States v.
Brandon, 17 F.3d 409, 440 (1st Cir. 1994) (“The decision to grant
or deny a motion for severance is committed to the sound discretion
of the trial court and we will reverse its refusal to sever only
upon a finding of manifest abuse of discretion.”).23
23
After oral argument, González and Fernández submitted various pro
se motions, seeking, inter alia, a stay of the proceedings and
appointment of new counsel or permission to proceed pro se. The
basis for González and Fernández’s motions appear to be that the
government breached plea agreements entered into in a prior
criminal case, 04-cr-217 (PG), by using evidence from that case in
the instant prosecution and that their trial and appellate counsel
were ineffective in not pursuing these allegations. The motions
are denied. González and Fernández’s allegations should be raised
-36-
CONCLUSION
For the reasons stated above, the judgment of the district
court is affirmed as to González and Fernández. The judgment as to
Rosario is vacated to the extent it is based on the jury’s findings
beyond a reasonable doubt of elevated drug quantities. Rosario’s
case is remanded for re-sentencing. Any pending motions are moot.
in the first instance in the district court pursuant to 28 U.S.C.
§ 2255.
-37-