United States v. Rivera-Rangel , 466 F.3d 158 ( 2006 )

United States Court of Appeal
For the First Circuit
No. 05-2042
UNITED STATES OF AMERICA,
Appellee,
v.
MARIA DE LOS ANGELES RIVERA RANGEL,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Boudin, Chief Judge,
Selya, Circuit Judge, and
Schwarzer,* Senior District Judge.
Ignacio Fernández de Lahongrais, with whom Edgar Vega Pabon
was on brief, for appellant.
Kathleen A. Felton, United States Dep't of Justice, with whom
H.S. Garcia, United States Attorney, Guillermo Gil and Maritza
Gonzalez De Miranda, Assistant United States Attorneys, were on
brief, for appellee.
October 25, 2006
__________
*Of the Northern District of California, sitting by designation.
SELYA, Circuit Judge. This is a sequel to an earlier
appeal. See United States v. Rivera Rangel, 396 F.3d 476 (1st Cir.
2005). In it, defendant-appellant Maria de Los Angeles Rivera
Rangel (Rivera) tries once again to defenestrate her Hobbs Act
convictions. This time around, she substitutes a series of Sixth
Amendment claims for her previously unrequited claims of
evidentiary insufficiency. Her new arguments fare no better than
her old arguments: although her appellate counsel has pleaded her
case ably, the freshly minted argumentation lacks adequate
grounding in the trial record. We therefore affirm the appellant's
convictions. At the same time, however, we accept the parties'
joint importuning and remand for resentencing.
We rehearse the background only to the extent necessary
to explain our reasoning, urging readers who hunger for a more
complete profile to consult our earlier opinion. See id. at 480-
82.
The appellant served for some time as a top aide to the
governor of Puerto Rico. On August 23, 2002 — after both she and
the governor whom she served had left office — a federal jury
convicted her of one count of conspiracy to interfere with commerce
by extortion induced by fear of economic harm and/or under color of
official right, 18 U.S.C. § 1951, and one count of aiding and
abetting the underlying offense, id. § 2. The convictions rested
largely on the testimony of two businessmen, José Miguel Ventura
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Asilis (Ventura) and Angel Luis Ocasio Ramos (Ocasio). These men
testified that they had given money to the appellant in exchange
for access to high-ranking government officials.
The trial judge ordered a judgment of acquittal
notwithstanding the jury verdict or, in the alternative, a new
trial. On appeal, we reinstated the verdict. See Rivera Rangel,
396 F.3d at 486. In the course of that appeal, we rejected
Rivera's plea that the government had failed to demonstrate that
Ventura or Ocasio feared her but, rather, were willing participants
in the spreading around of money. See id. at 483.
Pursuant to our direction, the case, on remand, was
reassigned for the penalty phase of the proceedings. The new judge
thereafter sentenced Rivera to a 48-month incarcerative term. This
appeal followed.
Rivera, qua appellant, now maintains that various
curtailments of her efforts to cross-examine witnesses violated her
right to confront her accusers. See U.S. Const., amend. VI; Davis
v. Alaska, 415 U.S. 308, 320 (1974). She points to no fewer than
five occasions on which the trial court thwarted proposed lines of
inquiry and posits that these inquires, if permitted, would have
been highly probative of the fact that her accusers freely elected
to make payments to her. Because the government's case was thin,
her thesis runs, these abridgments of her Sixth Amendment rights
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were distinctly prejudicial and require that her convictions be set
aside.
But, there is a rub. Despite the fervor with which the
appellant's arguments are presented, they are built on quicksand.
We explain briefly why we reach that conclusion.
We start with the one ground of complaint that merits
extended discussion. The appellant's trial counsel attempted to
question Ocasio regarding payments that he had received from
Ventura while he (Ocasio) was himself a government official
(payments that allegedly occurred years before the inception of the
charged conspiracy). Ocasio responded by invoking his right
against self-incrimination. See U.S. Const., amend V. At that
juncture, the appellant moved for a mistrial, but the district
court denied the motion. The appellant assigns error to this
ruling.
For purposes of precision, we begin this phase of our
discussion by inquiring into what ground of appeal the motion for
mistrial served to preserve. It is beyond peradventure that the
motion preserved a claim of error as to the failure to grant a
mistrial. It is less clear, however, whether the appellant can
leverage the motion into a foundation for challenging the failure
to take action with respect to Ocasio's previous testimony. After
all, the appellant did not move to strike the testimony to that
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point. See, e.g., United States v. Sepulveda, 15 F.3d 1161, 1183
(1st Cir. 1993).
This is significant because remonstrances about rulings
that have the effect of admitting evidence ordinarily must be
preserved through either "a timely objection or motion to strike,"
Fed. R. Evid. 103(a)(1); see United States v. Meserve, 271 F.3d
314, 325 (1st Cir. 2001). It is not self-evident, as a matter of
logic, that a motion for mistrial qualifies.
Be that as it may, the denial of a motion for a mistrial
is subject to review for abuse of discretion, see Sepulveda, 15
F.3d at 1184, and that ground of appeal plainly was preserved. The
same standard — abuse of discretion — governs appellate review of
rulings admitting or excluding evidence, see United States v.
Maldonado-Garcia, 446 F.3d 227, 231 (1st Cir. 2006), and in this
instance the inquiries seem to overlap. Given this similitude, we
elect to treat this claim of error as preserved with regard to
Ocasio's direct testimony being allowed to stand.
In the long run, winning that battle does not help the
appellant to win the war. The appellant effectively concedes that
Ocasio had a colorable Fifth Amendment right to remain silent as to
these earlier uncharged transactions (none of which were covered by
his testimony on direct examination). In United States v. Berrio-
Londono, 946 F.2d 158 (1st Cir. 1991), we observed: "In determining
whether a witness's refusal to answer questions posed during cross-
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examination constitutes a denial of the defendant's confrontation
rights . . . a distinction must be drawn between direct and
collateral matters." Id. at 160.
That principle possesses particular pertinence here. If
the evidence sheltered behind Ocasio's invocation of the Fifth
Amendment was directly relevant, the appellant's rights may have
been compromised by the earlier admission of Ocasio's testimony.
See, e.g., United States v. Cardillo, 316 F.2d 606, 613 (2d Cir.
1963) (reversing convictions when key witness invoked Fifth
Amendment midstream and "[t]he answers solicited might have
established untruthfulness with respect to specific events of the
crime charged"). If, however, the proffered line of questioning
touched upon matters of only collateral import, the court had broad
discretion to permit the direct testimony to stand while allowing
Ocasio to invoke his right to silence on certain subjects raised by
the cross-examiner. See, e.g., Berrio-Londono, 946 F.2d at 161(denying relief when the questions that the witness refused to
answer on cross-examination served only to "gild[] the lily"). As
long as the case at hand falls within the latter category, the
motion for mistrial was properly denied.
The appellant's brief argues forcefully that the desired
cross-examination was central to her defense. Specifically, she
remonstrates that had the jury been alerted to Ventura's history of
doling out cash to public servants, it might have concluded that
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the payments to the appellant were part of an established way of
doing business rather than tribute extorted through threats of
reprisal or under color of official right (the standard for Hobbs
Act extortion, see United States v. Cruz-Arroyo, 461 F.3d 69, 73
(1st Cir. 2006)).
The chief difficulty with this argument is that it comes
too late. That is to say, even though the denied line of cross-
examination bears a direct relationship to the "willing
participant" defense, that theory of defense was first clearly
articulated in the appellant's second motion for a judgment of
acquittal, filed six months after the jury had spoken.1 It was not
asserted at trial. There, the appellant's theory of defense was
1
There are three places in the trial record that contain faint
echoes of the "willing participant" defense. One is a brief
allusion in closing argument suggesting that multi-millionaire
developers had nothing to fear from the appellant. In context,
however, the clear implication of this allusion was that these
powerful men had little need for the appellant's assistance and,
logically, would not have bothered to grease her palm. The second
is a cryptic comment during a motion for a judgment of acquittal
presented after the government's case was concluded, see Fed. R.
Crim. P.29(a), in which counsel observed that the government had
failed to introduce evidence of "fear or harm." The third is an
attempt to ask Ocasio on cross-examination if he feared the
appellant. After the court sustained an objection to this
question, counsel, without argument or attempt to rephrase, ended
his cross-examination. None of these can sustain the weight of an
entire defense theory. At any rate, the sockdolager is that all
three incidents occurred after the judge had denied the motion for
mistrial and, therefore, could not have alerted him to what the
appellant now says is the possible relevance of Ocasio's prior
misconduct.
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that she had not actually accepted any monies from either Ocasio or
Ventura in return for access to government officials.
Not surprisingly, then, when the appellant's trial
counsel argued the motion for mistrial, he did not suggest — or
even so much as hint — that the thrust of his inquiry into matters
pre-dating the conspiracy was to demonstrate a lack of fear on the
part of the alleged victims. Rather, consistent with the defense
strategy rolled out at trial, counsel argued that the denied line
of cross-examination was necessary to impeach Ocasio's credibility
by showing specific instances of bad character under Federal Rules
of Evidence 404 and 608. At no time did counsel alert the court to
the possibility that these prior bad acts might do double duty as
evidence of willing participation.
The fact that a party has preserved an objection does not
mean that, on appeal, the party can raise any conceivable ground in
support of that objection. In the context of a ruling admitting
evidence, we have explained that a "lack of specificity bars the
party aggrieved by the admission of the evidence from raising more
particularized points for the first time on appeal." United States
v. Holmquist, 36 F.3d 154, 168 (1st Cir. 1994). This logic is
fully transferable to a ruling excluding evidence (or, as here, a
ruling denying a motion for a mistrial premised on a refusal to
allow a particular line of questioning). In either case, a
contrary holding would enable a party to retrench after an adverse
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jury verdict and ask an appellate court to view the trial judge's
evidentiary rulings through a new and different lens. This sort of
second-guessing is antithetic to the core purpose of procedural
default rules. Thus, we treat the appellant's objection as
preserved only as to the theory presented in support thereof to the
trial court, namely, that the denied cross-examination would have
been useful for impeachment purposes.
That effectively ends this aspect of the appeal.
Impeachment through reference to a witness's prior conduct is often
a paradigmatic example of a collateral pursuit. The admission of
this type of evidence is always subject to the trial judge's sound
discretion. See Fed. R. Evid. 608(b). On several prior occasions,
we have found the exclusion of such evidence appropriate in the
face of Sixth Amendment challenges. See, e.g., Berrio-Londono, 946
F.2d at 161; United States v. Barrett, 766 F.2d 609, 615 (1st Cir.
1985).
The testimony shielded by Ocasio's assertion of his Fifth
Amendment privilege is of this genre. Despite the modest
impediment that the exclusion of such testimony may have created,
the appellant retained access to a variety of effective ways with
which to attack Ocasio's credibility — not the least of which was
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the fact that Ocasio had pleaded guilty to related charges and was
hoping for a lenient sentence.2 No more was exigible.
To be sure, the appellant argues that the unavailable
testimony had added significance because it concerned criminal
conduct with which Ocasio had not been charged, thus suggesting
another potential reason for Ocasio to furnish testimony favorable
to the government. Yet, that sort of argument has heretofore been
tried and found wanting: an "inability to superimpose on [a
witness's] admissions the possibility that [the witness] might also
be concerned about punishment for other offenses can hardly be
characterized as an abridgement of [the defendant's] right to
effective cross-examination." Berrio-Londono, 946 F.2d at 161.
Here, moreover, even though the lower court denied the appellant
the opportunity to press Ocasio about the previous transactions,
Ventura already had confirmed their occurrence.3 Consequently, the
2
In some contexts, a witness's credibility also may be
undermined by the very exercise of his Fifth Amendment rights in
the presence of the jury. See Berrio-Londono, 946 F.2d at 162.
Here, however, the trial judge instructed the jury that Ocasio's
claim of Fifth Amendment privilege was irrelevant.
3
This single fact destroys any chance for the appellant to
prevail on an argument that permitting Ocasio to invoke the Fifth
Amendment was plain error when the "willful participant" defense is
taken into account. As we have written, "[t]estimony that is
cumulative in nature and limited in scope cannot constitute plain
error." United States v. Bailey, 270 F.3d 83, 88 (1st Cir. 2001).
In an effort to parry this thrust, the appellant asserts that, had
Ocasio's claim of privilege been denied, she would have elicited
testimony beyond the scope of Ventura's revelations. Appellant's
Reply Br. at 4-5. Since the appellant's trial counsel neglected to
make a contemporaneous offer of proof, we cannot credit this
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jury had available to it all the information needed to discount
Ocasio's credibility on the basis of his earlier unscrupulous
dealings.
The Sixth Amendment assures a criminal defendant a right
of effective cross-examination, not a right of unrestricted cross-
examination. See United States v. Mulinelli-Navas, 111 F.3d 983,
987 (1st Cir. 1997). In this instance, the opportunity for
effective cross-examination was not foreclosed by the mistrial
ruling. Consequently, we conclude that the lower court acted well
within its discretion in prioritizing the probative value of
Ocasio's testimony over the necessary limitations on cross-
examination concerning collateral matters that upholding his Fifth
Amendment privilege entailed.
The remaining claims of error need not occupy us for
long. In each and all of these instances, the appellant's trial
counsel did not object, did not attempt to rephrase challenged
questions, and did not make an offer of proof. See Fed. R. Evid.
103(a)(2); Fed. R. Crim. P. 51(b). Accordingly, these four
assignments of error are procedurally defaulted.4
speculation. See Fed. R. Evid. 103(a)(2); see also United States
v. Mulinelli-Navas, 111 F.3d 983, 992 (1st Cir. 1997) (elucidating
cross-examiner's burden, in the face of an objection, to
"adequately indicate[] to the district court the theory of defense
she want[s] to pursue").
4
In a letter submitted following oral argument, see Fed. R.
App. P. 28(j), the appellant's counsel argues that our holding in
United States v. Vega Molina, 407 F.3d 511 (1st Cir. 2005),
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The procedural default rules, though sometimes harsh in
their application, "are essential to the balanced and orderly
functioning of our adversarial system of justice." United States
v. Griffin, 818 F.2d 97, 99-100 (1st Cir. 1987). They deserve our
allegiance here. These four claims are, therefore, reviewable only
under the plain error standard — a standard that is notoriously
difficult to satisfy.
The inquiry into plain error is elementary. The trial
court sustained objections on relevancy grounds to questions anent
(i) payments (unrelated to the appellant) allegedly made to high-
ranking political figures; (ii) business deals between Ventura and
Ocasio, including payments to the latter while he was in government
service; and (iii) whether Ocasio actually feared the appellant.
All of these lines of inquiry play into the appellant's theory on
appeal — willing participation — but as we already have explained,
that theory would not have been apparent to the nisi prius court.
Finally, the district court denied the appellant the opportunity to
press Ocasio, who had testified that he had no plea agreement, as
to whether he had any type of agreement whatever with the
prosecution.
suggests that, in cases raising Sixth Amendment concerns, there is
no need to attempt to make an offer of proof or to rephrase
questions in order to avoid procedural default. Vega Molina does
not stand for so eccentric a proposition. In embracing that
opinion, the appellant's counsel seems to have overlooked that the
claim at issue there was "duly preserved." Id. at 522.
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In none of these instances can the appellant vault the
quadrat of hurdles incorporated in the plain error standard. To
prevail on any of these forfeited claims of error, the appellant
must make four showings: "(1) that an error occurred (2) which was
clear or obvious and which not only (3) affected the defendant's
substantial rights, but also (4) seriously impaired the fairness,
integrity, or public reputation of judicial proceedings." United
States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001).
In no instance has the appellant satisfied even the first
of these four prerequisites. It is easy to imagine that the
queries at issue would have been confusing to the jury and — given
the nature of the defense presented at trial — not particularly
illuminating. At any rate, supplying context divests the four
claims of error of even their initial patina of plausibility. For
example, it may seem troubling at first blush that the appellant
was not permitted to ask Ocasio if he feared her, but in the
context of the cross-examination to that point it was not
unreasonable to think that counsel was either repeating a question
previously asked and answered or attempting to create the
appearance of a contradiction where none existed.
Even were we to assume for argument's sake that any or
all of these restrictions on cross-examination were erroneous, the
appellant would not get very far. Based on our review of the
record as a whole, these limitations neither affected the
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appellant's substantial rights nor impaired the integrity of the
proceeding. The record makes manifest that the trial judge gave
the appellant broad latitude to cross-question both of the
government's star witnesses, and her trial counsel vigorously
exploited that latitude. And, finally, the judge afforded the
appellant a full and fair opportunity to present the defense of her
choosing to the jury. The Sixth Amendment demands no more.
Mulinelli-Navas, 111 F.3d at 987, 992.
To cinch matters, the fourth prong of the plain error
test bars relief here. Choices have consequences and, for aught
that appears, the appellant made a strategic choice as to what line
of defense might work at trial. Fundamental fairness neither
requires nor suggests that an appellate court relieve her of the
consequences of that choice by reinterpreting trial proceedings in
light of an alternate theory of defense first clearly articulated
after the verdict.
The absence of any principled basis for a finding of
plain error in the exclusion of evidence brings us to the last
issue. The district court sentenced the appellant during the
twilight period between the Supreme Court's watershed decision in
United States v. Booker, 543 U.S. 220 (2005) (rendering the federal
sentencing guidelines advisory), and our explanatory dissertation
in United States v. Jiménez-Beltre, 440 F.3d 514 (1st Cir. 2006)
(en banc) (elucidating Booker and providing guidance to sentencing
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courts on how to work with advisory guidelines). The decision in
Jiménez-Beltre required, among other things, that in the absence of
exceptional circumstances — not present here — a sentencing court
should begin its work by calculating the applicable guideline
sentencing range. See Jiménez-Beltre, 440 F.3d at 518 ("In most
cases, this will mean that the district court will have to
calculate the applicable guidelines range . . . before deciding
whether to exercise its new-found discretion to impose a non-
guidelines sentence."); see also United States v. Pho, 433 F.3d 53,
61 (1st Cir. 2006) (explaining that, post-Booker, "the guidelines
remain part and parcel of the sentencing algorithm").
Here, the sentencing court did not pause to calculate the
applicable guideline sentencing range. Given the uncertainty that
existed in the roiled wake of Booker, it is not surprising that the
court lacked the clairvoyance to foresee the procedures that we
would deem necessary for sentencing under an advisory guideline
regime. In light of this and other omissions, the government and
the appellant — who agree on little else — both request that we
vacate the sentence and remand to the district court for
resentencing consistent with the steps limned in Jiménez-Beltre.
The ends of justice counsel that we accommodate this sensible
suggestion, and we do so. We caution, however, that we take no
view of the length of the sentence previously imposed; the district
court remains free, in line with the dictates of Booker, Jiménez-
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Beltre, and 18 U.S.C. § 3553, to impose a reasonable sentence
above, below, or equal to that previously imposed.
We need go no further. Procedural lapses limit and
define what may be reviewed on this appeal. For the most part, the
appellant's claims of error are forfeit. The little that remains
of those claims is untethered from the trial proceedings and, thus,
insufficient to serve as a fulcrum for overturning the convictions.
Withal, the appellant's sentence must be vacated.
Affirmed in part, vacated in part, and remanded for resentencing.
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