United States v. Soto-Beniquez ( 2003 )

United States Court of Appeals
For the First Circuit
Vol. II of II
No. 01-1619
UNITED STATES OF AMERICA,
Appellee,
v.
WILLIAM SOTO-BENÍQUEZ,
Defendant, Appellant.
No. 01-1674
UNITED STATES OF AMERICA,
Appellee,
v.
JUAN SOTO-RAMÍREZ,
Defendant, Appellant.
No. 00-1547
UNITED STATES OF AMERICA,
Appellee,
v.
EDUARDO ALICEA-TORRES,
Defendant, Appellant.
No. 01-1620
UNITED STATES OF AMERICA,
Appellee,
v.
RAMON FERNÁNDEZ-MALAVÉ,
Defendant, Appellant.
No. 00-1464
UNITED STATES OF AMERICA,
Appellee,
v.
CARMELO VEGA-PACHECO,
Defendant, Appellant.
No. 00-1488
UNITED STATES OF AMERICA,
Appellee,
v.
ARMANDO GARCÍA-GARCÍA,
Defendant, Appellant.
No. 00-1470
UNITED STATES OF AMERICA,
Appellee,
v.
JOSE LUIS DE LEÓN MAYSONET,
Defendant, Appellant.
No. 00-1362
UNITED STATES OF AMERICA,
Appellee,
v.
RENE GONZALEZ-AYALA,
Defendant, Appellant.
No. 00-1543
UNITED STATES OF AMERICA,
Appellee,
v.
JUAN ENRIQUE CINTRÓN-CARABALLO,
Defendant, Appellant.
No. 00-1361
UNITED STATES OF AMERICA,
Appellee,
v.
MIGUEL VEGA-COLÓN,
Defendant, Appellant.
No. 00-1456
UNITED STATES OF AMERICA,
Appellee,
v.
MIGUEL VEGA-COSME,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lynch, Circuit Judge.
Marlene Apontes-Cabrera for appellant Soto-Beníquez.
Miriam Ramos-Grateroles for appellant Soto-Ramírez.
Raymond Rivera Esteves for appellant Alicea-Torres.
Luz M. Rios-Rosario for appellant Fernández-Malavé.
Javier Morales-Ramos for appellant Vega-Pacheco.
Rachel Brill for appellant García-García.
Roberto Roldan-Burgos for appellant de León Maysonet.
Victor Miranda-Corrada, for appellant Gonzalez-Ayala.
Rafael Anglada-Lopez for appellant Cintrón-Caraballo.
Marcia G. Shein for appellants Vega-Cosme and Vega-Colón.
Jacabed Rodriguez-Coss and Michelle Morales, Assistant United
States Attorneys, with whom H.S. Garcia, United States Attorney,
and Sonia I. Torres-Pabon, Assistant United States Attorney, were
on brief, for appellee.
November 20, 2003
f) Improper Admission of Rule 702 Expert Testimony As
Lay Testimony Under Rule 701
(Cintrón-Caraballo)
Cintrón-Caraballo argues that the court should have
excluded the testimony of eleven witnesses because they provided
expert testimony but, he says, were not disclosed as experts under
Rule 702.8 These witnesses included eight forensic examiners
(Ruben Diaz-De Leon, Alfredo Roman-Rodriguez, Virginia Cortes, Luis
Batista-Maldonado, Nelson Morales-Huerta, Luis Mercedes-Rodriguez,
Francisco Ramos-Seda, and Cesar W. Ostolaza-Perez), two
pathologists (Dr. Yocasta Brougal-Mena and Dr. Francisco Cortes),
and a firearms examiner (Juan B. Maldonado). This was prejudicial,
Cintrón-Caraballo argues, because the defendants would have been
entitled to summaries of the witnesses' testimony if they had been
designated as experts. See Fed. R. Crim. P. 16(a)(1)(G)(defendants
are entitled to summaries of all expert testimony, which must
include "the witness's opinions, the bases and reasons for those
opinions, and the witness's qualifications").
The district court correctly determined that none of the
eight forensic examiners provided expert testimony. Witnesses who
testify only about their perceptions of an event, or about lay
opinions arising out of those perceptions, see Fed R. Evid. 701,
8
The trial in this case took place in 1999, before the
December 1, 2000 effective date of the amendments to Rules 701 and
702. Accordingly, we apply the pre-amendment Rules and case law.
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are not experts under Rule 702 regardless of any specialized
training or experience they may possess. See United States v.
Paiva, 892 F.2d 148, 157 (1st Cir. 1989) ("[T]he individual
experience and knowledge of a lay witness may establish his or her
competence, without qualification as an expert, to express an
opinion on a particular subject outside the realm of common
knowledge."); see also United States v. Rivera-Santiago, 107 F.3d
960, 968 (1st Cir. 1997). That rule is dispositive here: the court
permitted each of the witnesses to testify only about their
observations at the various crime scenes they personally
investigated. Indeed, the court consistently reminded both the
witnesses and the lawyers that if any of these witnesses' testimony
"sound[ed] like a 702 [opinion] . . . [he would] not admit it."
Although at points the district court faced difficult decisions
about the side of the Rule 701 / Rule 702 divide on which a
witness's opinion fell, there was no abuse of discretion in the
court's resolution of these issues. See Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 152 (1999) (review of a district court's
decision to admit or exclude expert testimony is for abuse of
discretion).
Nor did the district court abuse its discretion in
allowing the expert testimony of the two pathologists, Drs. Cortes
and Brugel-Mena. The district court found, despite the
government's failure to label the witnesses' testimony and reports
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as Rule 702 material in its pre-trial disclosure, that the
government had effectively complied with the applicable disclosure
requirements. In particular, the government had informed
defendants before trial that both pathologists would be testifying
about several autopsies and provided the defendants with copies of
all of these autopsy reports. Although Dr. Cortes testified about
one autopsy report that he did not personally prepare, the district
court permitted this substitution because the pathologist who had
prepared that report was unavailable to testify due to serious
illness. There is no generalized prohibition on allowing experts
to testify about autopsy reports that they did not personally
prepare. See Manocchio v. Moran, 919 F.2d 770, 780 (1st Cir.
1990).
The government failed to formally designate the last
witness, Juan Maldonado, as an "expert", but it did inform the
defendants that Maldonado would be testifying about ballistics and
provided the defense with all of Maldonado's notes on his
testimony. And once again, the district court permitted
Maldonado's testimony due to the lack of prejudice to the defense.
Here, though, the court compensated the defendants for the
government's failure to adhere to the technical requirements of
Fed. R. Crim. P. 16 by certifying the witness only as a ballistics
expert, and refusing to also certify him as a "firearms expert."
This decision was an appropriate sanction against the government
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and undercuts the defendant's prejudice argument.
g) Rule 404(b) "Bad Act" Evidence
(Cintrón-Caraballo)
Cintrón-Caraballo argues that the court erred in
admitting evidence of his March 8, 1994 arrest by Puerto Rico
police, and of the contemporaneous seizure of a gun that he was
carrying. He argues that this evidence was impermissible bad act
evidence under Fed. R. Evid. 404(b) because it was not relevant to
demonstrating his participation in the conspiracy, which, according
to the indictment, had ended one day earlier, on March 7. Cintrón-
Caraballo also argues that the firearms evidence should have been
excluded as unreliable because the firearm had been destroyed by
Puerto Rico authorities.
These arguments are unavailing. Evidence of Cintrón-
Caraballo's arrest was admissible under Rule 404(b) because the
arrest was for activities evidencing his participation in the
conspiracy charged in the indictment. The arrest took place on
Street B, where the drug point that the government alleged Cintrón-
Caraballo supervised was located. This evidence demonstrated an
overt act in furtherance of the alleged conspiracy and Rule 404(b)
explicitly provides that evidence of bad acts is admissible for
purposes other than showing actions in conformity with those acts.
See Fed. R. Evid. 404(b).
The fact that the indictment charged the conspiracy with
ending "on or about" March 7 does not change this conclusion. The
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"on or about" language left the district court leeway to conclude
that the arrest fit within this time frame, and thus that the
arrest was evidence of an act directly in furtherance of the
conspiracy. Cf. Portela, 167 F.3d at 704 (indictment charging
defendant with possession of cocaine "on or about" March 1995
provided "perfectly adequate" notice to the defendant for acts
charged in April 1995).
We also reject Cintrón-Caraballo's related objection that
the photograph of the gun should have been excluded because there
was no reliable evidence that it was the gun actually seized from
him. The district court found that there were sufficient indicia
of reliability that the photograph was what it purported to be
because specific markings on the gun in the photograph matched the
description in the police report. The arresting officer also
testified that the photograph depicted the weapon seized from
Cintrón-Caraballo. Under these circumstances, the photograph was
properly authenticated. See Fed. R. Evid. 901(a).
h) Admission of Evidence on Rebuttal
(Soto-Ramírez)
In the government's case-in-chief, Negrón-Maldonado
testified that Soto-Ramírez was involved in the murder of a
government informant, Ana Luz Dones-Arroyo. Soto-Ramírez countered
this testimony by suggesting that the government did not have
sufficient evidence to indict him for Dones-Arroyo's murder because
it had accepted his guilty plea to the charge of accessory after
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the fact. In rebuttal, the government called Juan Maldonado, who
had previously testified as a ballistics expert, but whom the court
had refused to further qualify as a firearms expert. Maldonado
testified that the same weapon that was used to kill Robles-
Rodríguez -- a murder to which Soto-Ramírez had pled guilty -- was
also used in the murder of Dones-Arroyo.
Defendant argues that Maldonado's testimony was not
admissible as rebuttal evidence because Soto-Ramírez's argument
that he only pled guilty to the accessory after the fact charge was
not "a sweeping denial" of his involvement in the Dones-Arroyo
murder. We review the admission of rebuttal evidence for abuse of
discretion. See United States v. Leon-Delfis, 203 F.3d 103, 113
(1st Cir. 2000); Faigin v. Kelly, 184 F.3d 67, 85 (1st Cir. 1999).
The district court did not abuse its discretion in
rejecting Soto-Ramírez's argument and admitting Maldonado's
testimony as rebuttal evidence. "Rebuttal evidence may be
introduced to explain, repel, contradict or disprove an adversary's
proof." United States v. Laboy, 909 F.2d 581, 588 (1st Cir. 1990).
That is exactly what the government did here. The defense opened
the door to Maldonado's testimony when it attempted to demonstrate
that Soto-Ramírez was only an accessory after the fact because that
claim implied that Soto-Ramírez was not guilty of the underlying
murder.
Soto-Ramírez also argues that Maldonado's testimony in
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rebuttal should have been excluded because it was expert firearms
testimony that the district court had specifically excluded during
the government's case-in-chief. The court rejected this argument,
concluding that the defendants had sufficient notice that Maldonado
would testify to this issue and thus that its previous holding
limiting Maldonado's testimony to ballistics was not applicable.
This conclusion was sound. The defendants were provided with a
report before trial that Maldonado would testify that the same
weapons were used in the Robles-Rodríguez and Dones-Arroyo murders.
2. Brady and Giglio Claims
(Soto-Beníquez, Soto-Ramírez, Alicea-Torres)
Defendants contend that there were multiple Brady and
Giglio violations. See Brady v. Maryland, 373 U.S. 83, 87 (1963);
Giglio v. United States, 405 U.S. 150, 153-54 (1972). First,
several defendants challenge the government's failure to reveal the
apparent inconsistencies in Rodríguez-López's story when it first
became aware of them in the summer of 1998. At that time, all the
prosecution knew was that Rodríguez-López had lied to the FBI (not
the grand jury) about being present at Rivera-González's murder.
He had not testified to the grand jury about that murder. Although
the prosecution must reveal material information that is favorable
to the accused, the fact that Rodríguez-López may not have been
present at the Rivera-González murder is not exculpatory evidence.
Admittedly, the analysis might have been different if the
government had ultimately called Rodríguez-López as a witness at
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trial: his earlier lies to the government would certainly have
constituted a basis for impeaching him. See Giglio, 405 U.S. at
153-54; Moreno-Morales v. United States, 334 F.3d 140, 145 (1st
Cir. 2003). But the government did not call Rodríguez-López.
Furthermore, as the trial court noted, the defendants knew a month
before trial that Rodríguez-López had lied, so they had sufficient
time to interview him and have him testify if they so desired.
Several defendants also argue that the government failed
to fully disclose the extent of Negrón-Maldonado's plea and
cooperation agreement with the government. After testifying on
direct examination about ten murders, Negrón-Maldonado admitted
during redirect examination that the government had promised him
favorable treatment in his related state court proceedings in
exchange for his testimony. Counsel for Soto-Beníquez and Soto-
Ramírez immediately moved for a mistrial, telling the court that
the prosecution had never disclosed its intervention in the Puerto
Rico courts on behalf of the witness. (The prosecution had
disclosed the existence of a plea arrangement between itself and
Negrón-Maldonado). At side-bar, the government explained that
while the Commonwealth of Puerto Rico had made certain oral
assurances to the witness at the prosecution's behest, no agreement
had been reduced to writing and thus there was no document that
could have been produced to inform the defense of the agreement.
The government's obligation to disclose impeachment
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evidence is not, as suggested by the prosecution, dependent on
whether that evidence has been reduced to written form. See
Giglio, 405 U.S. 152, 154-55 (reversing conviction where an oral
agreement between a prosecutor and key witness was not disclosed to
the defense). Here, the government failed to disclose the full
extent of its agreement with the witness until the defense
uncovered the details of the arrangement during cross-examination.
Nonetheless, the defendants were not prejudiced by the
government's delay in revealing this information and are not
entitled to reversal on appeal. See United States v. Lemmerer, 277
F.3d 579, 588 (1st Cir. 2002) (a defendant must show that
"learning the information altered the subsequent defense strategy,"
and that given timely disclosure, "a more effective strategy would
likely have resulted" (quoting United States v. Devin, 918 F.2d
280, 290 (1st Cir. 1990)); United States v. Ingraldi, 793 F.2d 408,
411-12 (1st Cir. 1986) (same). Negrón-Maldonado admitted the full
extent of his arrangement with the government during cross-
examination. Moreover, the defendants' strategy in cross-examining
Negrón-Maldonado was surely not impacted by the government's
delayed disclosure. Even without knowing about the federal
prosecution's intervention in state court, the defense's cross-
examination of Negrón-Maldonado was intended to suggest that the
witness was fabricating his testimony in order to receive favorable
treatment. There has been no showing that having a larger quantum
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of evidence than originally supposed would have altered the way in
which the defense cross-examined the witness, and the court granted
additional time to defense counsel to prepare and investigate the
new information before cross-examination of the witness resumed.
Again, we do not approve of the prosecution's conduct; we hold only
that it does not provide a basis for reversal.
Soto-Beníquez and Soto-Ramírez also allege that the
prosecution failed to disclose that it had granted immunity to
Janet Garcia-Diaz, the girlfriend of Torrens-Alicea, another
cooperating witness. This argument is without merit. Garcia-Diaz
was told that she would not be prosecuted after she specifically
inquired of the government whether she needed a lawyer, on the same
day that she was called as a defense witness by Vega-Colón to
impeach Torrens-Alicea's testimony for the prosecution. There was
a window of, at most, several hours between the government's
statement to Garcia-Diaz and the defendants' discovery of this
supposed grant of immunity. Even assuming that the defendants were
entitled to this information under Giglio, they became aware of the
so-called "grant of immunity" on the same day that it was extended.
No prejudice has been shown.
Finally, Soto-Beníquez and Soto-Ramírez suggest that the
prosecution did not disclose the fact that cooperating witnesses
were allowed to make unmonitored phone calls, visit with their
spouses, and take pictures of themselves "half-naked" in government
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offices. Defendants, though, were informed by discovery letter
about several visits by family members to cooperating witnesses.
In any case, these benefits pale in comparison with the deals
negotiated in the plea bargains. Defendants were well aware of the
agreements with cooperating witnesses (absent that of Negron-
Maldonado, discussed above) and used them well in cross-
examination. There was no prejudice to the defendants.
3. Closing Arguments
(de León Maysonet, Gonzalez-Ayala, García-García)
Several defendants urge that the prosecution's closing
argument led to reversible error.
In its rebuttal in closing the prosecutor argued:
And one point that I want to make clear as to Ramon
Fernandez Malave, as to Carmelo Vega Pacheco, as to Rene
Gonzalez Ayala, as to Jose Luis de Leon Maisonet and
anyone else who argues here before you that they are here
before you pleading not guilty, pleading their innocence.
Well, let me tell you something, ladies and gentlemen of
the jury, a plea of not guilty is not, not a declaration
of innocence. A plea of not guilty simply means,
government, prove your case. But a plea of not guilty is
not a declaration of innocence.
(emphasis added). Defense counsel objected:
We would like to interpose an objection, hinges on the
constitution right to the presumption of innocence.
The court replied, in the presence of the jury:
There is a presumption of innocence going on. Fine.
(emphasis added). The prosecutor echoed that:
There is a presumption of innocence. They are to be
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presumed innocent, that is not what I'm arguing against,
Your Honor. And I understand the jurisprudence from the
First Circuit supports my argument.
The court then said:
Keep on going.
Later, the prosecution made a similar statement:
Carmelo Vega Pacheco again comes before you and says my
client is pleading not guilty. Again, a plea of not
guilty is not a declaration of innocence. It simply puts
the government to its proof. And he argues, yes, he
participated in [the] Quintana massacre but that was in
furtherance of a different conspiracy.
(emphasis added). The defense again objected to this later
statement, but not on the ground asserted on appeal -- namely, that
the prosecutor's comments undercut the presumption of innocence.
Because a contemporaneous objection was made by defense
counsel to the earlier statement, we review de novo the question of
whether the argument was improper and review for abuse of
discretion the court's ruling on whether the misconduct, if any,
warrants a new trial. United States v. Hernandez, 218 F.3d 58, 68
(1st Cir. 2000). We conclude that error occurred but that it does
not warrant a new trial.
On appeal, the prosecution argues that these statements
were an accurate description of the law. It also contends that its
comments were invited by the improper argument of several
defendants that their pleas of not guilty in this case were
reliable indications of their innocence because if they were guilty
they would have admitted it in this case, as they did in the state
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court.
The prosecution is wrong on both points. First, the
prosecutor's comments did undermine the presumption of innocence.
By saying that a plea of not guilty is "not a declaration of
innocence" but simply means "government, prove your case," the
prosecutor undercut the axiomatic principle that a defendant is
presumed innocent until proven guilty and need not declare or prove
that he is innocent. Regardless of the complex relationship
between the presumption of innocence and the prosecution's duty to
convince the jury beyond a reasonable doubt, see, e.g., Taylor v.
Kentucky, 436 U.S. 478, 483-85 (1978) (noting the scholarly debate
concerning whether the presumption of innocence is analytically
distinct from the requirement that the government prove guilt
beyond a reasonable doubt); McCormick on Evidence § 346 (5th ed.
1999) (suggesting that the presumption of innocence is "a
convenient introduction to the statement of the burdens upon the
prosecution"), due process requires that both of these principles
guide the jury in reaching its verdict. Taylor, 436 U.S. at 483-
86; Coffin v. United States, 156 U.S. 432, 453, 461 (1895). To
undercut one, even if the other remains standing, is improper. It
is for precisely this reason that a district court's failure to
instruct the jury on the presumption of innocence may violate due
process even when the jury has been properly informed of the
prosecution's burden of proving guilt beyond a reasonable doubt.
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Taylor, 436 U.S. at 488-89.
The prosecution's contention that the statements were a
justified response to the argument of defense counsel is also
incorrect. Although it is true that, in certain circumstances, a
prosecutor's otherwise impermissible statements during closing
argument may be allowable because they were "invited" by defense
counsel, United States v. Henderson, 320 F.3d 92, 107 (1st Cir.
2003), this was clearly not such a case. Defense counsel's
argument that the defendants' pleas of not guilty in federal court
were particularly trustworthy because the defendants had formerly
pled guilty in state court was not improper and did not justify the
prosecutor's response.
Not every prosecutorial error in making closing argument
justifies a new trial, even when that error undermines
constitutional rights. No reversible error occurs when the
reviewing court determines beyond a reasonable doubt that the
constitutional error was harmless. Wihbey, 75 F.3d at 772 n.6; see
also United States v. Hasting, 461 U.S. 499, 510-11 (1983). As the
Supreme Court has clarified, the relevant question "is not what
effect the constitutional error might generally be expected to have
upon a reasonable jury, but rather what effect it had upon the
guilty verdict in the case at hand." Sullivan v. Louisiana, 508
U.S. 275, 279 (1993); see United States v. Rivera-Santiago, 107
F.3d 960, 967 (1st Cir. 1997).
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We conclude beyond a reasonable doubt that the
prosecutor's improper closing argument did not prejudice the
defendants in this case. The court gave curative instructions that
established the presumption of innocence immediately after the
prosecutor's first improper statement (the only time the defense
made the appropriate objection). It then reinforced the
presumption in its general instructions to the jury, noting that it
"is a cardinal principle of our system that every person accused of
a crime is presumed to be innocent unless and until his/her guilt
is established beyond a reasonable doubt." Given those
instructions and the strong evidence of guilt, we conclude beyond
a reasonable doubt that the statements did not affect the ultimate
outcome of the case, especially when they occupied only several
seconds in a six-month long trial.
4. Cumulative Effect of Errors
(Soto-Beníquez, Soto-Ramírez)
A series of errors, each one of which is individually
"harmless," may have a cumulative effect that requires a new trial.
United States v. Sepulveda, 15 F.3d 1161, 1195-96 (1st Cir. 1993).
Defendants rely on this proposition, arguing that,
considered as a whole, the prosecution's missteps warrant a new
trial. To this point, we have concluded that the prosecution erred
in repeatedly failing to meet discovery deadlines, in neglecting to
disclose the extent of its plea arrangement with Negrón-Maldonado,
and in making inappropriate remarks during closing arguments. This
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conduct is blameworthy and the government should take steps to see
that it does not recur.
Still, the government's bad behavior does not require
that the jury's verdict of guilt be set aside. At a minimum, to
overturn a verdict, the prosecution's bad behavior must have
prejudiced the defendants. See, e.g., United States v. Joyner, 191
F.3d 47, 53 (1st Cir. 1999) (in evaluating allegations of
prosecutorial misconduct, "the unavoidable bottom line" is "whether
we deem it likely, or not, that any prejudice affected the outcome
of the case"). Although the frustrations of defense counsel are
understandable, that test is not met here.
The defense was not demonstrably prejudiced by any of the
government's violations, and sometimes even gained an advantage
from them. The defendants ultimately received the necessary
discovery and were provided with compensation such as additional
discovery and the exclusion of otherwise admissible evidence. When
the defendants learned of the federal prosecution's intervention in
state court on behalf of Negrón-Maldonado, the court offered them
additional time to cross-examine the witness. And while the
court's curative instruction during the prosecutor's closing
arguments was concise, it was sufficient in the context of the
overall instructions to assure that the jury was properly appraised
of the import of the presumption of innocence. The totality of
errors argument is unsuccessful.
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D. Post-Trial
1. Sufficiency of Evidence as to CCE Count
(Soto-Beníquez, Soto-Ramírez)
Soto-Beníquez and Soto-Ramírez argue that there is
insufficient evidence to support their convictions. They offer no
further explanation, except to cite to their filings before the
district court. Their argument as to sufficiency of evidence has
been waived. See Grella, 42 F.3d at 36. "If counsel desires our
consideration of a particular argument, the argument must appear
within the four corners of the brief filed in this court."
Executive Leasing Corp. v. Banco Popular de P.R., 48 F.3d 66, 67-68
(1st Cir. 1995). Attorneys cannot circumvent this requirement by
referencing their district court filings. Id. at 68.
2. Sufficiency of Evidence as to Conspiracy Count
(Cintrón-Caraballo, Vega-Cosme, Vega-Colón)
Vega-Cosme and Vega-Colón argue that the evidence is
insufficient to tie them to the charged conspiracy. We reject this
claim.
The government presented overwhelming evidence of Vega-
Cosme's participation in the conspiracy. Government witnesses
testified that Vega-Cosme had a series of agreements with other
members of the conspiracy to maximize drug revenue. He negotiated
with the Chacho gang on behalf of the drug points to end the
warfare that was interfering with drug sales, met with Negrón-
Maldonado to coordinate the colors of crack capsule caps to avoid
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competition between the points, and arranged the opening of his own
drug point on Laguna Street with Soto-Ramírez. Although Vega-Cosme
correctly notes that there is no evidence that Soto-Ramírez acted
as his supplier, the government did present testimony that Vega-
Cosme supplied narcotics to Soto-Ramírez, along with ammunition
used in shootings of rival gang members in 1992 and 1993.
The record also shows sufficient evidence of the
participation of Vega-Cosme's son, Miguel Vega-Colón. Vega-Colón
packaged crack cocaine, heroin, and marijuana for his father's
point. He also stood armed guard at the Callejón Nueve drug point,
which was owned by Rodríguez-López. Both of those activities were
in furtherance of the conspiracy. Moreover, based on Vega-Colón's
presence at meetings between Vega-Cosme and Soto-Ramírez, a
reasonable jury could have concluded that he joined the conspiracy
knowingly and voluntarily.
Vega-Cosme and Vega-Colón also argue that their
convictions are based on unreliable testimony from co-conspirators
who "had clear incentives to testify untruthfully." In assessing
the sufficiency of evidence, credibility determinations must be
resolved in favor of the verdict. United States v. Guerra-Garcia,
336 F.3d 19, 22 (1st Cir. 2003). Credibility judgments are the
province of the jury, not of this court.
Cintrón-Caraballo also makes an insufficiency of evidence
argument. He argues that the district court erred in admitting
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certain expert testimony and Rule 404(b) "bad act" evidence, and
contends that without this evidence, the only evidence tying him to
the conspiracy is the uncorroborated testimony of co-conspirators.
This argument fails. The contested evidence was properly admitted.
See Part III.B(f)-(g). Moreover, even if Cintrón-Caraballo's
conviction rested only on co-conspirator testimony, the jury was
entitled to credit such testimony and convict him on that basis.
See United States v. Torres-Galindo, 206 F.3d 136, 140 (1st Cir.
2000).
3. Special Verdict and Jury Instructions for CCE Count
(Soto-Beníquez, Soto-Ramírez)
Soto-Beníquez and Soto-Ramírez claim that the district
court committed reversible error when it failed to instruct the
jury to determine the quantity and type of drugs. First, they
argue that the drug amount is an element of the CCE offense and
that the jury was not otherwise instructed to find a minimum drug
amount. Second, they argue that Apprendi v. New Jersey, 530 U.S.
466 (2000), requires that the drug amount be proven to the jury
beyond a reasonable doubt. The standard of review for alleged jury
instruction errors involving the interpretation of the elements of
a statutory offense is de novo. United States v. Shea, 150 F.3d
44, 49-50 (1st Cir. 1998).
We reject both arguments. As to the claim that the drug
amount is an element of the CCE offense, the CCE statute plainly
does not require a minimum drug amount for a conviction.
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As to Soto-Ramírez and Soto-Beníquez's Apprendi argument,
Apprendi requires that "[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt." 530 U.S. at 490. Here, absent
a finding of drug quantity, the statutory maximum for CCE is
already life imprisonment: the statute authorizes a sentence of
twenty years to life imprisonment regardless of drug amount. 21
U.S.C. § 848(a)-(c). A drug amount above a certain level can
result in a mandatory life sentence, § 848(b), but does not change
the statutory maximum. Hence, no Apprendi violation has occurred
with regard to the CCE convictions.9
4. Special Verdict for Conspiracy Count
(Alicea-Torres, Fernández-Malavé)
Alicea-Torres and Fernández-Malavé argue that the trial
court erred in not providing the jury with a special verdict form
requiring it to determine the quantity and type of drugs as to each
defendant. They argue that a special verdict form was necessary to
9
Soto-Beníquez and Soto-Ramírez also argue reversible
error based on the district court's denial of their request for a
special verdict sheet requiring the jury to find the type and
amount of drugs as to each defendant. In criminal cases, the
failure to use a special verdict form is reviewed for abuse of
discretion. United States v. Ellis, 168 F.3d 558, 562 (1st Cir.
1999). For the reasons discussed above, we find no such abuse
here. It was not necessary for the jury to determine the quantity
or type of drugs to convict Soto-Ramírez and Soto-Beníquez on the
CCE count.
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ensure that the jury was unanimous as to drug type and quantity.
This argument is based on Apprendi and is discussed later.
E. Sentencing
1. Apprendi and Related Issues
a) Apprendi Error
(Alicea-Torres, Fernández-Malavé, Vega-Pacheco,
Vega-Cosme, Vega-Colón)
Five of the non-CCE defendants -- Alicea-Torres,
Fernández-Malavé, Vega-Pacheco, Vega-Cosme, and Vega-Colón --
assert that their sentences violated the rule of Apprendi. They
argue that the amount of drugs distributed by the conspiracy was
not proven beyond a reasonable doubt to a jury, that the drug
amount raised the statutory maximum, and that their sentences must
be vacated as a result. We conclude that Apprendi error did occur,
but that the error was harmless.
The jury instructions in this case did not make direct
reference to drug amount or quantity. Instead, the jury was
instructed that, to find the defendants guilty of the conspiracy
count, it had to find that the government proved the conspiracy
charged in the indictment beyond a reasonable doubt. The jury was
provided with a copy of the indictment, which charged the
defendants with knowingly and intentionally distributing more than
five kilograms of heroin, more than five kilograms of cocaine, more
than five kilograms of crack cocaine, and more than 100 kilograms
of marijuana. However, the jury was also instructed that the
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actual amount of drugs need not be proven, and that the government
need only prove that defendants distributed or possessed with
intent to distribute a "measurable amount" of drugs.
The latter part of these instructions resulted in
Apprendi error. This case presents an even stronger case of
Apprendi error than United States v. Nelson-Rodriguez, 319 F.3d 12(1st Cir. 2003). In that case, as here, the jury was given a copy
of the indictment and instructed that to find the defendants guilty
on the conspiracy count, it had to find them guilty of the
conspiracy in the indictment. Id. at 45. The indictment in
Nelson-Rodriguez, as here, specified drug types and quantities
sufficient to support the defendants' sentences. Id. We concluded
that this instruction was insufficient to elicit a jury
determination of the threshold drug amount and quantity. Id. The
same analysis applies here with greater force because the jury was
specifically instructed that it need only find a "measurable
amount" of drugs.
All five defendants who raise the Apprendi issue were
sentenced above the default statutory maximum. Absent a jury
determination of drug amount or type, the default statutory maximum
is based on the distribution of unspecified amounts of marijuana,
which results in a maximum sentence of five years for first-time
felony drug convictions and ten years if a prior such conviction
exists. 21 U.S.C. §§ 841(b)(1)(D), 846. Alicea-Torres, Fernández-
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Malavé, Vega-Pacheco, and Vega-Cosme were sentenced to life
imprisonment, and Vega-Colón was sentenced to 292 months, or about
twenty-five years, of imprisonment.
The existence of an Apprendi error, however, does not end
the inquiry. If the defendants failed to preserve their Apprendi
objection below, their sentences are vacated only if we find plain
error. United States v. Cotton, 535 U.S. 625, 631 (2002). If they
did preserve their objection, their sentences are vacated only if
we find that the error was not harmless beyond a reasonable doubt.
Nelson-Rodriguez, 319 F.3d at 49.
Fernández-Malavé preserved his Apprendi objection, and we
assume without deciding that the remaining defendants did the same,
as it makes no difference to the outcome. Defendants' trial took
place from December 1998 to June 1999, before Apprendi was decided.
At the time, several defendants requested a special verdict form
requiring the jury to determine the drug amount and type as to each
defendant. But only Fernández-Malavé, who was the sole non-CCE
defendant sentenced after Apprendi was decided, challenged his
sentence before the district court on this basis. The question
whether the remaining defendants' special verdict request was
sufficient to preserve an Apprendi objection, absent a separate
objection at sentencing, is a complex one. Nelson-Rodriguez, 319
F.3d at 48. Here, as in Nelson-Rodriguez, we prefer to assume
without deciding that the objection was preserved and the harmless
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error standard applies. Id.The Apprendi error in this case was harmless beyond a
reasonable doubt. An Apprendi error is harmless where the evidence
overwhelmingly establishes the minimum drug quantity needed to
justify the statutory maximum under which the defendants were
sentenced. Martinez-Medina, 279 F.3d at 121-22. Here, the
government produced overwhelming evidence that the conspiracy
involved at least five kilograms of cocaine, which triggers a
maximum sentence of life imprisonment for all co-conspirators under
21 U.S.C. § 841(b)(1)(A) and § 846. Government witnesses Negrón-
Maldonado and Torrens-Alicea both testified that Rodríguez-López
and Gonzalez-Ayala stole a 200 kilogram shipment of cocaine in
Fajardo, which was then brought back to Bitumul for distribution.
Negrón-Maldonado further testified that in 1991 he purchased a
kilogram of cocaine per week from Soto-Ramírez. After May 1992,
Negrón-Maldonado stated, he and another co-conspirator named
Manolín, who managed Soto-Ramírez's point while Soto-Ramírez was in
prison, each purchased one kilogram of cocaine per week from Soto-
Beníquez to be sold at their respective drug points. Negrón-
Maldonado also testified that after January 1993, he continued to
purchase from Soto-Beníquez three-eighths of a kilogram of cocaine
each week for his drug point.
In addition, the government presented overwhelming
evidence that the conspiracy distributed more than the 50 grams of
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crack cocaine necessary to trigger a life sentence under 21 U.S.C.
§ 841(b)(1)(A). According to Negrón-Maldonado, 125 grams of crack
cocaine would yield approximately 800 to 850 crack capsules using
the conspiracy's packaging techniques. Negrón-Maldonado testified
that Cintrón-Caraballo received 600 capsules of crack cocaine (90
grams) per week for distribution at his drug point in 1990, 800 to
850 capsules (125 grams) per week in 1991, and 1000 capsules (150
grams) per week in early 1993. Furthermore, Negrón-Maldonado
testified that at the beginning of 1992, he would "cook" 500 grams
to a kilogram of cocaine into crack cocaine two to three times per
week for Soto-Ramírez's points; this alone amounts to one to three
kilograms per week. At around the same time, Negrón-Maldonado
himself was also selling 500 to 800 crack capsules, or between 75
to 125 grams of crack, per week. When he left for the United
States, he sold an additional 2000 crack capsules, or over 300
grams of crack. All told, Negrón-Maldonado estimated that a single
drug point would distribute at least one kilogram of crack cocaine
per month -- more than twenty times the amount necessary to trigger
a life sentence.
In the face of this overwhelming evidence, defendants
argue that the testimony of co-conspirators alone is never a
sufficient basis to find an Apprendi error harmless beyond a
reasonable doubt. That is not so. See United States v. Stewart,
306 F.3d 295, 324-25 (6th Cir. 2002) (finding Apprendi error
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harmless beyond a reasonable doubt based on the testimony of co-
conspirators). Defendants offered no evidence contradicting the
conspiracy-wide drug quantities at trial, and they point to no such
evidence on appeal, except their attack on the general credibility
of the two witnesses.
The jury in this case could not have convicted all eleven
defendants of participation in the conspiracy without believing the
testimony of Negrón-Maldonado and Torrens-Alicea regarding at least
some of the transactions. Negrón-Maldonado and Torrens-Alicea also
testified regarding the quantity of drugs involved in those
transactions. Defendants offer no explanation for why the jury
would believe Negrón-Maldonado and Torrens-Alicea's account of each
defendant's activities in furtherance of the conspiracy, but
discredit their testimony regarding the quantity or type of drugs
involved in those activities. In Nelson-Rodriguez, we found an
Apprendi error harmless on very similar facts: the jury could not
have convicted without crediting informant testimony, the same
informant testified to the drug amount, and the defendant offered
no reason to disbelieve the testimony except a general attack on
the witness's credibility. 319 F.3d at 49-50.
Defendants further protest that even if the conspiracy
writ large involved the requisite quantities and types of drugs,
the Apprendi error is not harmless. They argue that it was not
reasonably foreseeable to each of them individually, from their
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limited involvement, that such quantities of drugs would be
involved. Under the Sentencing Guidelines, a narcotics
conspirator's sentence is based on the amount of drugs he actually
handled, negotiated, or saw, as well as the amount of drugs that he
reasonably could have foreseen to be embraced by the conspiracy he
joined. Rodriguez, 162 F.3d at 149; U.S.S.G. § 1B1.3 & cmt. 2.
Defendants argue that unless this court is certain that the jury
would find the drug quantity reasonably foreseeable to each
defendant, the Apprendi error cannot be harmless.
We reject this argument. Apprendi does not require that
the jury determine beyond a reasonable doubt the quantity of drugs
foreseeable to each defendant. Apprendi requires only that juries
determine facts necessary to increase the statutory maximum. 530
U.S. at 490. Here, the conspiracy-wide drug quantity determines
the statutory maximum. See 21 U.S.C. § 846 (holding each
conspirator responsible for the quantity of drugs distributed by
the conspiracy). As long as the sentence falls within this
statutory maximum, the district court may determine the quantity of
drugs reasonably foreseeable to each defendant by a preponderance
of the evidence and sentence each defendant accordingly. Derman v.
United States, 298 F.3d 34, 42-43 (1st Cir. 2002). In determining
whether an Apprendi error is harmless, the determinative question
is whether the evidence overwhelmingly establishes the amount of
drugs distributed by the conspiracy as a whole. It does here.
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b) Multi-Object Conspiracy
(Vega-Cosme)
Vega-Cosme raises a related argument that the defendants
were charged with a multi-object conspiracy. In a multi-object
conspiracy charge, a jury convicts the defendants of distributing
one type of drug or another type of drug. See, e.g., United States
v. Dale, 178 F.3d 429, 431 (6th Cir. 1999) (jury instructed to
convict if conspiracy distributed crack cocaine or marijuana).
Although the First Circuit has not ruled on this issue, other
circuits have held that when a defendant is charged with a multi-
object conspiracy, and the jury returns a general verdict, the
statutory maximum should be based on the object carrying the lowest
maximum penalty. See, e.g., id. at 432; United States v.
Orozco-Prada, 732 F.2d 1076, 1083-84 (2d Cir. 1984). Vega-Cosme
argues that the jury in this case returned a general verdict on a
multi-object conspiracy charge -- namely, that the defendants
distributed more than five kilograms of heroin, cocaine, or cocaine
base, or more than 100 kilograms of marijuana. He argues that the
statutory maximum should therefore have been based on the penalty
for conspiring to distribute 100 kilograms of marijuana, which is
up to forty years imprisonment under 21 U.S.C. § 841(b)(1)(B). If
this were indeed the case, Vega-Cosme's life sentence would be
problematic.
Vega-Cosme's argument, though, is without merit. The
defendants were not charged with a multi-object conspiracy. The
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indictment charged them with distributing more than five kilograms
each of heroin, cocaine, and crack cocaine, and more than 100
kilograms of marijuana.10 Because those drug quantities and types
were joined by the conjunctive term "and" rather than the
disjunctive term "or," there was no ambiguity about the crime
charged. See United States v. Neuhausser, 241 F.3d 460, 469-70
(6th Cir. 2001) (no Apprendi error in sentencing defendant to
higher statutory maximum for cocaine conspiracy, when defendant was
charged with conspiracy to distribute both cocaine and marijuana);
United States v. Banks, 78 F.3d 1190, 1203 (7th Cir. 1996) (no
ambiguity where indictment was phrased in conjunctive rather than
disjunctive); United States v. Watts, 950 F.2d 508, 515 (8th Cir.
1991) (same).
Vega-Cosme argues that, regardless of the indictment, the
jury instructions transformed Count Two into a multi-object
conspiracy charge. The jury instructions contain a definition of
"possession with intent to distribute" that required the government
to "prove beyond a reasonable doubt that the defendant knew he was
possessing a controlled substance" but not that "the defendant knew
which particular controlled substance was involved." Vega-Cosme
contends that this instruction changed the conjunctive term "and"
10
The indictment did not need to specify the exact amount
of drugs involved in the conspiracy, as long as it alleged the
appropriate threshold amounts necessary to support the defendants'
sentences. Cf. Derman v. United States, 298 F.3d 34, 42 n.4 (1st
Cir. 2002).
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in the indictment into the disjunctive term "or." This argument is
meritless. First, this definition should not have affected the
jury's consideration of the conspiracy charge. The conspiracy
count of the indictment and the jury instructions regarding the
elements of conspiracy require the jury to find that defendants
conspired to "distribute" controlled substances to return a guilty
verdict; nowhere does the term "possession with intent to
distribute" appear. Second, even if the term had appeared, the
definition requires the government to prove that the defendants did
in fact possess specific drugs, even if they did not know which
drugs they possessed. Thus, the government must still show that
the defendant possessed cocaine and cocaine base and heroin and
marijuana, even if the defendant himself did not know the specific
drugs that he had in his possession. Finally, even if a multi-
object conspiracy were charged and an Apprendi error therefore
occurred, Vega-Cosme admits that review would be for plain error
because he did not preserve this argument below. We have already
determined that any Apprendi error as to drug amount or type would
be harmless; a fortiori, no plain error occurred.
c) Failure to Reference § 841(b)(1)(B) in Indictment
(Fernández-Malavé)
Fernández-Malavé argues that his sentence must be vacated
because the indictment was defective under Apprendi for failing to
reference specifically § 841(b)(1)(B), the statutory penalty
subsection under which he was sentenced. This claim is meritless.
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The indictment included threshold drug quantities and types. There
is no Apprendi requirement that the penalty subsection be included
in the indictment once the drug quantity and type are alleged. See
United States v. Eirby, 262 F.3d 31, 38 (1st Cir. 2001).
2. Sufficiency of Evidence As to Drug Quantities
(Soto-Ramírez, Soto-Beníquez, Cintrón-Caraballo, Vega-
Colón, Vega-Cosme)
Five defendants argue, separate from their Apprendi
claims, that the district court erred in determining the amount of
drugs attributable to them. They argue that the evidence does not
establish by a preponderance the quantity or type of drugs
necessary to support the calculation of their base offense levels.
We review factual determinations at sentencing for clear error.
United States v. Damon, 127 F.3d 139, 141 (1st Cir. 1997).
The district court's determinations of drug amounts were
not clearly erroneous. Under the Sentencing Guidelines, each
defendant must be sentenced based on the amount of drugs that he
handled, negotiated, saw, or could reasonably have foreseen to be
embraced by the conspiracy. Rodriguez, 162 F.3d at 149; U.S.S.G.
§ 1B1.3 & cmt. 2. Applying this standard, the district court
attributed at least 1.5 kilograms of crack cocaine to each of the
five defendants, resulting in a base offense level of 38 for each.
The record at trial and sentencing supports this
calculation. Negrón-Maldonado testified that Soto-Ramírez sold 300
crack capsules to Cintrón-Caraballo on at least ten occasions in
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1990, which amounts to 450 grams of crack cocaine. He also
testified that at the beginning of 1990, Soto-Ramírez supplied him
with 1000 to 1500 crack capsules, or about 150 to 200 grams, per
week. Assuming that these purchases continued for at least seven
weeks, Soto-Ramírez would have distributed 1.5 kilograms of crack
cocaine just from sales to Cintrón-Caraballo and Negrón-Maldonado
in 1990. Furthermore, according to Negrón-Maldonado's testimony,
during early 1992, Negrón-Maldonado "cooked" one to three kilograms
of cocaine into crack cocaine per week for Soto-Ramírez's points.
In one and a half weeks, Negrón-Maldonado would have packaged at
least 1.5 kilograms of crack cocaine for distribution at Soto-
Ramírez's points. Although Soto-Ramírez was in prison at this
time, the drug quantity was reasonably foreseeable to him because
he was still supervising his drug points by telephone.
The government presented evidence that Soto-Beníquez
supplied other members of the conspiracy with cocaine, which they
converted into at least 1.5 kilograms of crack cocaine and
distributed at their respective drug points. Negrón-Maldonado
testified that each week in early 1992, he bought one to three
kilograms of cocaine from Soto-Beníquez and converted it into crack
cocaine. Over two weeks, this would exceed the required 1.5
kilograms. Negrón-Maldonado also testified that Soto-Beníquez
supplied Cintrón-Caraballo with 125 grams of cocaine per week and
Negrón-Maldonado with 75 to 125 grams of cocaine per week, which
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was converted into crack cocaine for sale at their respective drug
points. Over eight weeks, this would exceed the required 1.5
kilograms. Soto-Beníquez protests that he could not have
reasonably foreseen that the cocaine he supplied would be converted
into crack cocaine. The district court had sufficient evidence to
conclude otherwise. Negrón-Maldonado testified that Soto-
Beníquez's house was used, repeatedly, as a location for converting
cocaine into crack cocaine. He also testified that when Cosme-
Sobrado was killed, Soto-Beníquez picked up the proceeds from Soto-
Ramírez's crack cocaine point and determined that money was
missing. Bitumul is a small community; given Soto-Beníquez's
involvement, it would be difficult for him to be wholly ignorant
that his co-conspirators were producing crack cocaine. These
activities and Soto-Beníquez's leadership role in the conspiracy
are sufficient to support the conclusion that Soto-Beníquez knew
Negrón-Maldonado and Cintrón-Caraballo sold crack cocaine at their
points and that he could have reasonably foreseen that the cocaine
he supplied to them would be converted into crack cocaine.
Cintrón-Caraballo's crack cocaine point was in operation
throughout the duration of the conspiracy, according to Negrón-
Maldonado's testimony. Negrón-Maldonado testified that Cintrón-
Caraballo purchased over 90 grams of crack cocaine per week for
distribution at his point in 1990, 125 grams per week in 1991, 125
grams on a regular basis in 1992, and over 150 grams per week in
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early 1993. Assuming that Cintrón-Caraballo's drug point operated
at least four weeks each year, the total amount of crack cocaine
purchased for distribution would exceed 1.5 kilograms.
Negrón-Maldonado testified that the drug point operated
by Vega-Cosme and Vega-Colón sold crack cocaine in 1990, 1992, and
1993. Negrón-Maldonado estimated that one drug point distributing
crack cocaine would usually sell at least one kilogram per month.
That volume of sales alone is sufficient to exceed the required 1.5
kilograms. In addition, the government presented evidence
indicating that the quantity of crack cocaine sold by Negrón-
Maldonado and Cintrón-Caraballo was reasonably foreseeable to Vega-
Cosme. Vega-Cosme met at least three times with the others to
coordinate the color of the caps on their respective crack
capsules. These meetings are evidence that Vega-Cosme had some
awareness of his co-conspirators' crack cocaine sales and that,
after color-coding was instituted, he had some way of tracking
their activities.
In response, all five defendants argue that this evidence
is unreliable because it is based on the testimony of cooperating
co-conspirators and was uncorroborated. Vega-Colón and Vega-Cosme
argue in their brief that absent a rule requiring corroboration of
such evidence, "unsuspecting defendants would be entirely at the
mercy of cooperating co-defendants, who have all the incentive in
the world to testify in a manner [whether truthful or not] that
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will assist the government in obtaining a larger sentence." That
risk is real, but vacating their sentences for lack of
corroboration is not the answer.11 Here, the cooperating co-
defendants were vigorously cross-examined, and defense counsel had
the opportunity to present evidence of the witnesses's plea
agreements, grants of immunity, and receipt of government money.
If the government's dilatory production of discovery materials had
impeded the cross-examination, the situation might be different.
But it did not. The jury found the co-conspirators credible, and,
for sentencing purposes, so did the trial court. These plausible
credibility determinations cannot be disturbed on appeal. Cf.
Torres-Galindo, 206 F.3d at 139-40 ("Uncorroborated testimony of a
cooperating accomplice may sustain a conviction so long as that
testimony is not facially incredible . . . .").
3. Alleged Rule 32 Violation
(Cintrón-Caraballo, Vega-Cosme)
Cintrón-Caraballo argues that the district court erred
(1) in permitting the government to introduce evidence in support
of an upward adjustment for his role as a supervisor in the
conspiracy under U.S.S.G. § 3B1.1 and (2) in granting the
adjustment. Although the probation officer did not include the
upward adjustment for a supervisory role in the PSR and the
11
If the government is mindful of its obligations,
countervailing incentives, such as avoidance of perjury charges,
can reduce the incentive to lie.
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government did not object to this omission before sentencing, the
government attempted to argue the upward adjustment to the court at
the sentencing hearing. We agree with Cintrón-Caraballo that this
course of action violated Fed. R. Crim. P. 32, which requires that
"[w]ithin 14 days after receiving the presentence report, the
parties shall communicate in writing to the probation officer, and
to each other, any objections" to it. Fed. R. Crim. P. 32(b)(6)(B)
(2000) (amended 2002).
Any possible prejudice to Cintrón-Caraballo from the
government's non-compliance was cured by the district court's grant
of a two-week continuance to give defense counsel an adequate
opportunity to respond to the government's late submission. See
United States v. Young, 140 F.3d 453, 457 (2d Cir. 1998) ("The
sentencing court may impose sentencing enhancements belatedly
suggested by the Government and not contained in the PSR, provided
the defendant is afforded an adequate opportunity to
respond . . . ." (internal citation omitted)).
Vega-Cosme raises a similar argument that the district
court erred in granting a two-level upward adjustment for
possession of a weapon. Here again, the adjustment was not
included in the PSR, and the prosecution did not object to its
omission before sentencing but argued for the enhancement at
sentencing, which was in violation of Rule 32. Because Vega-Cosme
did not object at sentencing, review is for plain error. United
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States v. Frisby, 258 F.3d 46, 47-48 (1st Cir. 2001). There was
none. Vega-Cosme had the opportunity to respond to the evidence at
the sentencing hearing. Contrast United States v. Curran, 926 F.2d
59, 62 (1st Cir. 1991), in which the court vacated a defendant's
sentence when he had no opportunity to contradict letters that were
not included in the PSR and that the court relied upon in reaching
its decision. Given the trial testimony regarding Vega-Cosme's
role in obtaining ammunition for the conspiracy and the extensive
murder evidence presented at trial, the government's belated
seeking of a firearms enhancement could not have come as such a
surprise to Vega-Cosme as to render the entire sentencing
proceeding a miscarriage of justice.
4. Denial of Downward Adjustment
(Gonzalez-Ayala, de León Maysonet)
Gonzalez-Ayala and de León Maysonet argue that the
district court committed an error of law when it refused to grant
them a downward adjustment based on their roles as minor
participants in the conspiracy. They argue in their brief that the
district court "failed to realize that the guidelines permitted the
sentencing court to decrease defendants' sentencing level" based on
the fact that "the appellants' level of participation was below that
of the other defendants." Mistakes of law in applying the
Sentencing Guidelines are reviewed de novo. United States v. Cali,
87 F.3d 571, 575 (1st Cir. 1996). The district court made no
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mistake of law.
The district court correctly determined that these
defendants were not entitled to a minor-role adjustment merely
because they were the least culpable among those who were actually
indicted. See United States v. Daniel, 962 F.2d 100, 103 (1st Cir.
1992). The relevant inquiry is whether the defendant played a part
that made him substantially less culpable than the average
participant in similar crimes. See U.S.S.G. § 3B1.2 cmt. 3; United
States v. Brandon, 17 F.3d 409, 460 (1st Cir. 1994).
Absent a mistake of law, we review the district court's
fact-based determination that a defendant was not a minor
participant for clear error. United States v. Rosario-Peralta, 199
F.3d 552, 571 (1st Cir. 1999). The court's determination was not
clearly erroneous. The government presented testimony at trial that
de León Maysonet stored weapons and narcotics for the conspiracy in
1992, stood as an armed guard at drug points in 1993, and packaged
and sold narcotics at the Callejón Nueve point in 1993. The
government also presented evidence at trial that he participated in
an unsuccessful mission to Fajardo to find and kill an individual
named Vitito, who had been hired to kill those responsible for
stealing the 200 kilograms of cocaine. The evidence is sufficient
to support the district court's finding that de León Maysonet was
not a minor participant, based on his two-year involvement and his
participation in a variety of criminal activities in support of the
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conspiracy. As to Gonzalez-Ayala, government witnesses Negrón-
Maldonado and Torrens-Alicea testified at trial that he participated
in the planning and execution of the theft of 200 kilograms of
cocaine in Fajardo and that he received profits from the sale of
that cocaine. They also testified that he helped package heroin and
cocaine for distribution at the Callejón Nueve point. The record
supports the district court's conclusion, based on the quantity of
drugs he helped obtain for the conspiracy and his ongoing role in
the packaging and sale of those drugs, that Gonzalez-Ayala was not
a minor participant.
5. Grant of Upward Adjustment
(Cintrón-Caraballo)
Cintrón-Caraballo argues that the evidence was
insufficient to support the district court's grant of a three-level
sentencing enhancement for his role as a supervisor in the
conspiracy under U.S.S.G. § 3B1.1(b). Under the Sentencing
Guidelines, a three-level enhancement is permissible "[i]f the
defendant was a manager or supervisor (but not an organizer or
leader) and the criminal activity involved five or more participants
or was otherwise extensive." U.S.S.G. § 3B1.1(b). Review of this
determination is for clear error. United States v. Brown, 298 F.3d
120, 122 (1st Cir. 2002).
The district court correctly counted the eleven defendants
convicted in the trial as meeting the "five or more participants"
prong. The more serious question is whether Cintrón-Caraballo was
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a manager or supervisor, terms not defined in the Sentencing
Guidelines but described in U.S.S.G. § 3B1.1 cmt. 4 as involving:
the exercise of decision making authority, the nature of
participation in the commission of the offense, the recruitment
of accomplices, the claimed right to a larger share of the
fruits of the crime, the degree of participation in planning or
organizing the offense, the nature and scope of the illegal
activity, and the degree of control and authority exercised
over others.
Cintrón-Caraballo argues that there was no firm evidence that he was
a supervisor; there was only rumor and innuendo. But the government
presented testimony at trial that Cintrón-Caraballo controlled a
drug point at Street B that sold crack cocaine and that he had
"Nanito, . . . Bennie's little brothers, and other persons" selling
for him. He also had Negrón-Maldonado cook cocaine into crack for
his drug point. The district court did not clearly err in finding
that Cintrón-Caraballo acted as a supervisor in running his drug
point.
6. Denial of Downward Departure
(Soto-Ramírez)
Soto-Ramírez challenges the district court's denial of a
downward departure based on his upbringing. The record contained
well-documented evidence that Soto-Ramírez had suffered severe
neglect and sexual abuse as a child. A denial of a downward
departure is generally non-reviewable unless the lower court's
failure to depart stemmed from a misapprehension of its authority
under the Sentencing Guidelines. See United States v.
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Rivera-Rodriguez, 318 F.3d 268, 275 (1st Cir. 2003). This standard
is unaffected by the PROTECT Act, which applies when the decision
made is to grant a departure. 18 U.S.C. § 3742(e). Here, Soto-
Ramírez argues that the district court failed to recognize that it
had the power to grant a downward departure based on abuse that
Soto-Ramírez suffered as a child. But the district court did
acknowledge its power to depart. It expressly stated, "I have [the]
authority to depart because of an upbringing situation which may
have affected the defendant." Accordingly, we have no jurisdiction
to review its decision on this issue.
IV.
This was a lengthy and complex case handled patiently and
well by the trial court. Despite missteps by the prosecution,
defendants received a fair trial and sufficient evidence supported
both the verdicts and the sentences for each defendant, which are
affirmed. So ordered.
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