United States v. Lopesierra-Gutierrez , 708 F.3d 193 ( 2013 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 12, 2012 Decided March 1, 2013
No. 07-3137
UNITED STATES OF AMERICA,
APPELLEE
v.
SAMUEL SANTANDER LOPESIERRA-GUTIERREZ,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 02cr00392-11)
Carmen D. Hernandez, appointed by the court, argued
the cause and filed the brief for appellant.
Vijay Shanker, Attorney, U.S. Department of Justice,
argued the cause for appellee. With him on the brief was
Lanny A. Breuer, Assistant Attorney General.
Before: TATEL and KAVANAUGH, Circuit Judges, and
SENTELLE, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: Samuel Santander Lopesierra-
Gutierrez, a Colombian national, was extradited for, charged
2
with, and convicted of conspiracy to distribute cocaine with
the knowledge or intent that it would be imported into the
United States in violation of 21 U.S.C. §§ 959(a), 960, and
963. The district court sentenced Lopesierra to 300 months’
incarceration. On appeal, he mounts numerous challenges to
his conviction and sentence. Most significantly, he maintains
that his trial attorney suffered from a conflict of interest that
deprived him of his Sixth Amendment right to conflict-free
representation and that excessive trial delays violated his
constitutional and statutory speedy-trial rights. For the reasons
given below, neither claim has merit. As to the rest of his
claims, we conclude either that the district court made no
error or that any such error was harmless.
I.
In October 2002, Samuel Santander Lopesierra-Gutierrez,
a member of the so-called Osorio drug-trafficking network,
was arrested in Colombia and extradited to Washington, D.C.
Upon arrival, he was arraigned and charged with conspiracy
to distribute cocaine, knowing or intending that it would be
imported into the United States. See 21 U.S.C. §§ 959(a), 960,
963. Over the next few years, fourteen other members of the
Osorio gang were extradited from Colombia and charged with
related offenses. By the end of an extended period of
negotiation and discovery, most of Lopesierra’s alleged
coconspirators had pled guilty. The trial of the remaining
defendants, Lopesierra and another man, Dolcey Padilla,
began nearly four years after Lopesierra’s initial arrest.
At trial, Lopesierra never seriously disputed that he
trafficked in large quantities of cocaine—indeed, he conceded
as much during closing argument. But Lopesierra maintained
his innocence of the crime charged, claiming that he neither
knew nor intended that the cocaine was bound for the United
3
States. See 21 U.S.C. §§ 959(a). The government, seeking to
demonstrate that Lopesierra had the requisite mens rea when
he distributed cocaine, introduced testimony focusing on
several key transactions, including a 462-kilogram shipment
to Puerto Rico. The government argued that this evidence,
along with evidence of prior drug-importation activity and of
money laundering in the United States, demonstrated
Lopesierra’s awareness that at least some of the cocaine he
conspired to distribute would be imported to the United
States. After a nearly two-month trial, during which
Lopesierra never testified, the jury found him guilty of
conspiracy to distribute five kilograms or more of cocaine
knowing or intending that the cocaine would be imported into
the United States. See 21 U.S.C. §§ 959(a), 960, 963. The
district court imposed a below-guidelines sentence of 300
months.
Lopesierra appeals both his conviction and his sentence
on myriad grounds. Two of his arguments—that he was
denied his Sixth Amendment right to conflict-free
representation and that the extensive trial delays violated his
constitutional and statutory speedy-trial rights—merit in-
depth analysis. We shall address these in Sections II and III
and then consider his remaining nine arguments, running the
gamut from evidentiary challenges to sentencing claims, in
Section IV.
II.
Lopesierra’s first and most serious contention is that his
trial counsel suffered from a conflict of interest that amounted
to a Sixth Amendment violation that prejudiced his defense.
Here’s what happened. Quite literally on the eve of trial, the
government discovered that a cooperating witness would
testify that, in the course of laundering money in the United
4
States for Lopesierra, he had sent $96,000 to Lopesierra’s
attorney to cover legal fees. This testimony was part of the
government’s evidence regarding the statutorily required
nexus between Lopesierra’s activities and the United States.
The government informed the court about the potential
conflict of interest, explaining that the witness’s testimony
had spawned a Department of Justice investigation into
whether the attorney had violated 18 U.S.C. § 1957, which
criminalizes monetary transactions in property derived from
unlawful activity. Arguing that the testimony and resulting
investigation created an actual conflict of interest, the
government moved to disqualify the attorney.
At a status conference the next day, Lopesierra’s attorney
insisted that he had no intention of withdrawing, that the
witness could testify without identifying him as the recipient
of the laundered funds, and that Lopesierra could waive any
conflict. Speaking for himself, Lopesierra told the court that
he was happy with the attorney’s work and wanted him to
continue. Following the conference, Lopesierra filed a
response to the government’s motion, which was signed by
both the purportedly conflicted attorney and a law professor
from whom the attorney had sought advice. In that response,
Lopesierra maintained that he had the right to continued
representation by his counsel of choice notwithstanding the
alleged conflict of interest. According to Lopesierra, the
conflict could be avoided so long as the witness never
mentioned the attorney by name. He also emphasized that he
wished to waive any potential conflict of interest. In response,
the government agreed that Lopesierra could waive the
conflict—so long as he did so knowingly and voluntarily. The
government also acquiesced to a stipulation about the
laundered funds that omitted the attorney’s identity.
5
The district court then held another status conference, at
which Lopesierra was represented by appointed conflict
counsel and at which the law professor appeared by
telephone. Both lawyers, as well as the government, agreed
that Lopesierra could waive any conflict of interest. After
considering both parties’ statements and submissions, the
district court concluded that any conflict of interest was in
fact waivable. It then proceeded to engage Lopesierra, again
represented by conflict counsel, in a detailed waiver colloquy.
In response to the court’s questioning, Lopesierra assured the
court that he was aware of the source of the conflict, that he
understood its nature, and that he knew he had a right to
conflict-free representation. Lopesierra confirmed that he had
been thoroughly advised by conflict counsel, insisted that he
had carefully considered his waiver decision, and made clear
that he understood he was waiving his right to later claim that
he had been prejudiced by a conflict of interest. Given all this,
the district court found that Lopesierra had “knowingly,
intelligently, [and] voluntarily waived any conflict of
interest.” Lopesierra’s original attorney went on to represent
him at trial.
On appeal, Lopesierra, now represented by new counsel,
argues that he was denied his Sixth Amendment right “to have
the Assistance of Counsel for his defence,” U.S. Const.
amend. VI, which includes a “correlative right to
representation that is free from conflicts of interest.” Wood v.
Georgia, 450 U.S. 261, 271 (1981). Lopesierra begins by
attempting to demonstrate that “an actual conflict of interest
adversely affect[ed] the adequacy of [his] representation.”
United States v. Taylor, 139 F.3d 924, 930 (D.C. Cir. 1998)
(citing Cuyler v. Sullivan, 446 U.S. 335, 349–51 (1980)).
Only then does he turn to the question whether his waiver
bars his claim. We begin with the decisive issue: waiver.
6
Criminal defendants frequently waive their constitutional
rights. By entering a guilty plea, for instance, a defendant
waives rights as fundamental as the “privilege against
compulsory self-incrimination, [the] right to trial by jury, and
[the] right to confront his accusers.” McCarthy v. United
States, 394 U.S. 459, 466 (1969). Of course, such waivers are
subject to strict oversight by the court, which must find that
they are made knowingly and voluntarily. See Godinez v.
Moran, 509 U.S. 389, 400 (1993). Like these other
constitutional rights, the Sixth Amendment right to conflict-
free representation is subject to knowing and voluntary
waiver. See Wheat v. United States, 486 U.S. 153, 160 (1988);
see also United States v. Childress, 58 F.3d 693, 734–36
(D.C. Cir. 1995) (per curiam). A defendant’s power to waive
this right is grounded in another right situated in the Sixth
Amendment: the right to counsel of choice. See Wheat, 486
U.S. at 160.
In cases like this, where a defendant’s chosen counsel
suffers from a conflict of interest, the two Sixth Amendment
rights come into clear conflict. Also implicated are the court’s
own institutional interests, as guaranteeing conflict-free
counsel protects not just defendants’ rights, but also the
“[f]ederal courts[’] . . . independent interest in ensuring that
criminal trials are conducted within the ethical standards of
the [legal] profession and that legal proceedings appear fair to
all who observe them.” Id. at 161. Taking the court’s interests
into consideration, the Supreme Court has held that a
defendant’s counsel-of-choice right may sometimes be
trumped by a conflict of interest. See id. at 159 (“[T]he
essential aim of the Amendment is to guarantee an effective
advocate for each criminal defendant rather than to ensure
that a defendant will inexorably be represented by the lawyer
7
whom he prefers.”). Specifically, a court may decline to
accept a waiver if the conflict of interest jeopardizes the
integrity of the proceedings. See id. at 162; see also Childress,
58 F.3d at 734–36. In making this determination, a court
balances the defendant’s right to choose his representative
against both the defendant’s countervailing right to conflict-
free representation and the court’s independent interest in the
integrity of criminal proceedings. Cf. United States v.
Edelmann, 458 F.3d 791, 806–07 (8th Cir. 2006). The
outcome of that balance turns on the nature and extent of the
conflict. We review a district court’s decision to accept or
reject a waiver for abuse of discretion. See Childress, 58 F.3d
at 734.
Attempting to get around his waiver, Lopesierra argues
that his lawyer’s conflict of interest was so serious that it was
simply unwaivable. Alternatively, he contends that, even if
the conflict was waivable, his waiver was neither knowing nor
voluntary.
Lopesierra’s primary argument relies heavily on a line of
Second Circuit decisions that have defined a “very narrow
category of cases” in which a conflict of interest is never
subject to waiver. United States v. Perez, 325 F.3d 115, 126
(2d Cir. 2003). In this class of cases, a district court that
accepts a waiver necessarily abuses its discretion because the
“conflict so permeates the defense that no meaningful waiver
can be obtained.” United States v. Fulton, 5 F.3d 605, 613 (2d
Cir. 1993). Lopesierra urges us to adopt the Second Circuit’s
approach and hold that this category of per se unwaivable
conflicts includes those cases in which the attorney is the
subject of a criminal investigation. Alternatively and more
narrowly, we take his position to be that such conflicts are
8
unwaivable at least where the attorney’s supposed crime is
related to the defendant’s.
The broader position is untenable. Lopesierra points to no
circuit that has accepted the proposition that attorneys who
are the subject of criminal investigations are incapable of
providing constitutionally adequate representation, and the
government identifies numerous circuits that have rejected it.
See, e.g., Edelmann, 458 F.3d at 806–08; Reyes-Vejerano v.
United States, 276 F.3d 94, 99 (1st Cir. 2002); United States
v. Montana, 199 F.3d 947, 949 (7th Cir. 1999). Indeed, even
the Second Circuit cases on which Lopesierra relies do not
purport to extend to every scenario in which “a court learns
that an attorney may have committed a crime,” but rather only
to situations in which an attorney is implicated in a
“sufficiently related” crime. Fulton, 5 F.3d at 611. This line
makes sense. Whenever an attorney is or is likely to be the
subject of a criminal investigation, courts worry that he might
attempt to curry general favor with the government by pulling
punches. Although this concern is serious, it hardly supports a
conclusion that “no rational defendant would knowingly and
voluntarily desire the attorney’s representation.” United States
v. Martinez, 143 F.3d 1266, 1270 (9th Cir. 1998) (internal
quotation marks omitted). But when the attorney’s alleged
criminal activity is “sufficiently related to the charged
crimes,” Fulton, 5 F.3d at 611, courts have an additional
concern: the attorney’s “fear that evidence concerning [his]
involvement might come out” could potentially “affect
virtually every aspect of his . . . representation of the
defendant.” Id. at 613. For instance, the attorney’s advice to a
defendant about whether to cooperate, plead guilty, or take
the stand could be colored by the attorney’s calculations about
the likelihood that the defendant’s cooperation or testimony
would reveal evidence of his own crimes.
9
Given the seriousness of this kind of conflict, we might
agree with the Second Circuit that when an attorney is
accused of a “sufficiently related” crime, the resulting conflict
“create[s] a real possibility that the attorney’s vigorous
defense of his client will be compromised.” Id. at 611. Were
we faced with the situation presented in Fulton—where a
witness against a defendant charged with conspiracy to
possess and import heroin accused defense counsel of
personally receiving a portion of a heroin shipment and being
otherwise involved in heroin trafficking, see id. at 607—we
may well have concluded that accepting a waiver amounted to
an abuse of discretion. But that is not this case. Lopesierra’s
attorney was accused only of accepting payment for his
services in laundered funds. True, those laundered funds were
allegedly the product of the charged cocaine-importation
conspiracy. That, however, was the full extent of his supposed
connection to Lopesierra’s crimes. Although the attorney’s
alleged criminal activity thus in some sense “related” to
Lopesierra’s, we see a significant difference between an
attorney who conspired with the defendant to distribute drugs
and one who was merely paid in laundered funds. In the
former case—where it is impossible to discern, for instance,
which witnesses the attorney might decline to call or hesitate
to cross-examine for fear they will implicate him—every
single aspect of representation could be infected, every choice
suspect. But where the relationship between the attorney’s
alleged crime and the defendant’s is as attenuated as here, the
extent of the conflict is clear and can be mitigated by
stipulation. A rational defendant—who may well have been
responsible for and fully aware of the fact that his attorney
was paid with profits from unlawful activity—could thus
make an informed choice to proceed in such a circumstance.
10
Accordingly, we hold that where the only relationship
between the attorney’s possible crime and the defendant’s is
the receipt of laundered funds and where a stipulation bars
presentation of incriminating testimony, the resulting conflict
is not per se unwaivable. See United States v. Saccoccia, 58
F.3d 754, 771 (1st Cir. 1995) (upholding waiver where the
attorney allegedly “conspired with appellant to launder the
fruits of unlawful activity”). In cases such as this, the
knowing and voluntary requirement, coupled with the abuse
of discretion standard, strikes the appropriate balance between
protecting defendants from conflicted representation and
preserving their right to counsel of choice. If in the context of
a particular case the district court believes a conflict is
intolerable, it may decline to accept a defendant’s waiver. But
here, where the conflict was less serious, the district court
acted well within its discretion by concluding that
Lopesierra’s right to counsel of choice carried the balance.
This brings us, then, to Lopesierra’s fallback position—
that his waiver was neither knowing nor voluntary. But we
have no doubt that it in fact was both. The district court held
multiple hearings on this issue and went to great lengths to
ensure that Lopesierra, who was represented by an
independent attorney, was fully aware of the nature of the
conflict and the consequences of waiver. The court explained,
for instance, that because the attorney was himself the subject
of a related criminal investigation, he might “have a divided
loyalty between his interests and [Lopesierra’s] interests” and
could “be in some way tempted to take actions that might not
be to [Lopesierra’s] benefit in order to assist himself in
connection with this other investigation.” It further
emphasized that Lopesierra had a right to an attorney who
lacked such a conflict and warned that “going forward could
be ill-advised.” In response to all of this, Lopesierra
11
repeatedly told the court that he was “100 percent”
determined to continue with the attorney who had been
representing him for three years. He also assured the court
that he understood he was waiving any argument that he was
“in some way prejudiced because [the attorney] had this
conflict of interest.”
We cannot conceive of—and Lopesierra fails to
suggest—anything more the district court could have done to
protect his rights. In the end, Lopesierra made a rational and
informed decision that, given the stipulation and the limited
nature of his attorney’s conflict, he wanted to proceed. That
he now wishes he had chosen differently gives us no reason to
doubt the validity of that choice.
III.
Lopesierra’s second major claim focuses on the
substantial delay between his initial arrest and his trial.
Asserting his constitutional and statutory speedy-trial rights,
Lopesierra maintains that the three-and-a-half years he had to
wait was simply too long. On both the constitutional and
statutory claims, we review the district court’s legal
conclusions de novo and its findings of facts for clear error.
See United States v. Tchibassa, 452 F.3d 918, 924 (D.C. Cir.
2006) (Sixth Amendment); United States v. Subblefield, 643
F.3d 291, 294 (D.C. Cir. 2011) (Speedy Trial Act). Although
we understand Lopesierra’s frustration with the pace of
proceedings, we ultimately find that given the complexity of
the case the delay fell within lawful bounds.
In Barker v. Wingo, 407 U.S. 514 (1972), the Supreme
Court established a four-factor test for determining whether a
defendant has been deprived of his Sixth Amendment right to
a speedy trial: “[l]ength of delay, the reason for the delay, the
12
defendant’s assertion of his right, and prejudice to the
defendant.” Id. at 530. Applying these factors, we have
emphasized that “[n]one . . . is either a necessary or sufficient
condition to the finding of a deprivation of the right of speedy
trial; rather, they are related factors and must be considered
together with such other circumstances as may be relevant.”
Tchibassa, 452 F.3d at 923 (internal quotation marks and
alteration omitted). Here, it is indisputable that the delay was
significant—two-and-a-half years longer than the one-year
delay the Supreme Court has suggested to be “presumptively
prejudicial.” Doggett v. United States, 505 U.S. 647, 651–52
& n.1 (1992). Nevertheless, it was considerably shorter than
delays tolerated in prior cases. See, e.g., Tchibassa, 452 F.3d
at 927 (no violation despite eleven-year delay). And more
importantly, when the Supreme Court observed that “the
delay that can be tolerated for an ordinary street crime is
considerably less than for a serious, complex conspiracy
charge,” Barker, 407 U.S. at 531, it could have been referring
to this very case.
Here, the district court and numerous attorneys had to
untangle a complicated and far-reaching conspiracy, execute
fifteen extraditions, fairly treat all fifteen co-defendants,
collect and decipher foreign evidence, and coordinate with
foreign witnesses—all serious obstacles to a quick resolution.
Furthermore, Lopesierra, who himself contributed to the delay
by filing pretrial motions, taking an interlocutory appeal, and
seeking a continuance, fails to demonstrate that the
government was to blame for the delay. Nor does he offer
reason to believe that the delay actually prejudiced his
defense. Accordingly, we conclude that the delay, though
significant, was neither so unjustified nor so prejudicial as to
violate the Sixth Amendment, and we thus turn to
Lopesierra’s statutory claim.
13
The Speedy Trial Act provides that “the trial of a
defendant charged . . . with the commission of an offense
shall commence within seventy days from the filing date (and
making public) of the information or indictment, or from the
date the defendant has appeared before a judicial officer of the
court in which such charge is pending, whichever date last
occurs.” 18 U.S.C. § 3161(c)(1) (emphasis added). Subsection
h of the statute enumerates certain periods of delay that “shall
be excluded in . . . computing the time within which the trial
of any such offense must commence.” Id. § 3161(h).
Here, the speedy-trial clock’s start and stop dates are
undisputed: respectively, Lopesierra’s arraignment on
September 2, 2003, and the date on which trial began, April
18, 2006. There were 959 days in between. The only question
is whether delays permitted by subsection h make up the
difference between the statutorily allotted 70 days and the 959
that actually elapsed. Lopesierra concedes that much of this
time may be properly excluded from the clock under one of
subsection h’s automatic-exclusion provisions. For instance,
he acknowledges that the 338-day period between his
arraignment and the arraignment of the last-extradited co-
defendant was properly and automatically excluded. See id.
§ 3161(h)(6) (“A reasonable period of delay when the
defendant is joined for trial with a co-defendant as to whom
the time for trial has not run and no motion for severance has
been granted.”). Ultimately, the only exclusions he seriously
contests are two “ends of justice” stays that cover the ground
between August 4, 2004, and November 25, 2005, after which
time automatic exclusions based on Lopesierra’s filing of a
motion for release, see id. § 3161(h)(1)(D) (excluding “delay
resulting from any pretrial motion”), and interlocutory appeal,
14
id. § 3161(h)(1)(C) (excluding “delay resulting from any
interlocutory appeal”), kicked in.
The first of the contested “ends of justice” stays would
present no problem at all were it not for the unusual absence
from the docket of a district court order. We pick up this
mystery on August 14, 2003, well before the end of the first
automatic stay, when the government filed a motion to
exclude time from the speedy-trial clock under Section
3161(h)(7), which permits a judge to grant an exclusion where
“the ends of justice served by taking such action outweigh the
best interest of the public and the defendant in a speedy trial,”
id. § 3161(h)(7)(A). No order either granting or denying that
motion appears on the docket. Indeed, not until almost two
years later, on May 26, 2005, when the district court granted a
subsequent Speedy Trial Act motion, does any order stopping
the speedy-trial clock appear on the docket. See generally
Order, United States v. Osorio Ortega, No. 02-00392 (D.D.C.
May 26, 2005). Given this, Lopesierra makes a
straightforward argument: no order tolled the speedy-trial
clock during the 293 days between the expiration of the
automatic stay and the district court’s 2005 order, and because
the district court has no authority to retroactively toll the
clock, dismissal is required.
An examination of the record, however, makes clear that
the phantom order was actually issued and its absence from
the docket resulted from a clerical error. In memoranda
regarding the government’s second Speedy Trial Act motion,
both parties acknowledged that the district court had in fact
issued an order granting the government’s initial motion. In
fact, Lopesierra’s memorandum appears to quote directly
from the missing order:
15
[T]he Government served on defense Counsel a
motion asking the Court to toll the Speedy Trial
Clock (“STC”), under 18 U.S.C. 3161 (h)7 and
(h)8, which was granted “until the last Defendant
or some other Defendant identified by the Court
[was] extradited from their native Colombia,”
(h)(7), as well as because the case was “complex
due to the nature of the prosecution,” Discovery
being so ample, “witnesses resid[ing] outside the
United States,” and the possibility that the case
“may present novel questions of fact or law.” This
order does not appear on the docket sheet but
defendant accepts the fact that it was signed.
Defendant Santander Lopesierra’s Response in Opposition to
Government’s Second Motion to Stay Speedy Trial Act at 1,
United States v. Osorio Ortega, No. 02-00392 (D.D.C. Apr.
28, 2005). Lopesierra’s own filing thus put the existence of
the order beyond dispute, and the portions of the order he
quotes enumerate perfectly adequate reasons for granting a
stay. Moreover, these reasons are confirmed and reiterated on
the record in the district court’s order granting the
government’s second motion. See Order at 1, United States v.
Osorio Ortega, No. 02-00392 (D.D.C. May 26, 2005) (noting
that the court had “previously granted the Government’s first
Motion to Stay the Speedy Trial Act on grounds that several
defendants had not been extradited from Col[o]mbia and due
to the complexity and nature of the prosecution”). This
suffices to satisfy Section 3161(h)(7)’s requirement that the
court’s findings be “set[ ] forth, in the record of the case.” 18
U.S.C. § 3161(h)(7)(A); see Zedner v. United States, 547 U.S.
489, 506–07 (2006); United States v. Edwards, 627 F.2d 460,
461 (D.C. Cir. 1980) (per curiam).
16
Having solved the mystery of the phantom order, we turn
to the second contested “ends of justice” stay. According to
Lopesierra, the district court failed to give a sufficient
explanation of its reasons for granting the government’s
second motion to toll the speedy-trial clock. The district court
stayed the clock for an additional six months, finding, as the
statute requires, that the stay served the “ends of justice” and
“outweigh[ed] the best interest of the public and the
[remaining] defendant[s] in a speedy trial.” See Order at 1,
United States v. Osorio Ortega, No. 02-00392 (D.D.C. May
26, 2005). In so doing, the court explained that it had
considered the statutory factors, reciting some of the more
pertinent ones: “the complexity of the case, the nature of the
prosecution, and that it would be ‘unreasonable to expect
adequate preparation for pretrial proceedings or for the trial
itself within the time limits established’ under the Act.” See
id. at 2.
Lopesierra maintains that because only two defendants
remained for trial and all discovery had been produced, the
district court had no basis for finding that the case remained
complex. According to Lopesierra, docket congestion—a
statutorily impermissible consideration, see 18 U.S.C.
§ 3161(h)(7)(C)—was among the “real” reasons the district
court granted the exclusion. But we have little difficulty
concluding that the district court’s explanation suffices. The
court expressly invoked relevant factors and weighed the
competing interests. Presented with no plausible justification
for doing otherwise, we take the district court at its word.
IV.
We can quickly dispatch with Lopesierra’s many
remaining claims: three evidentiary issues, three challenges to
the jury instructions, two sentencing issues, and an
17
overarching argument that, given all of these supposed errors,
Lopesierra was deprived of a fundamentally fair trial.
Evidentiary Claims
Lopesierra challenges the admission of two pieces of
evidence, as well as the sufficiency of the evidence with
respect to his state of mind.
Lopesierra’s first challenge is to the admission of a
recorded phone call that the government failed to identify on
its exhibit list during pretrial discovery. Because the defense
relied at trial on the absence of the recording from the exhibit
list, Lopesierra maintains that the district court should have
denied the government’s motion to introduce it mid-trial. We
disagree. The government produced the recording during
discovery, as Federal Rule of Criminal Procedure 16 requires,
and it agreed to exclude the evidence if the defense refrained
from suggesting that no such recording existed. The defense,
fully aware of the consequences of doing so, opened the door
to the recording’s admission by continuing its line of
questioning. Under these circumstances, the district court
acted well within its discretion. See United States v. Smart, 98
F.3d 1379, 1386 (D.C. Cir. 1996) (“This court reviews a trial
judge’s admission of evidence for abuse of discretion.”).
Lopesierra next contests the admission of testimony
about his 1996 involvement in a conspiracy to ship cocaine to
Miami. This incident took place prior to the start of the
charged conspiracy, and the district court admitted it for the
limited purpose of showing knowledge or intent. According to
Lopesierra, admission of this evidence violated the so-called
doctrine of specialty, which provides that “once extradited, a
person can be prosecuted only for those charges on which he
was extradited.” United States v. Sensi, 879 F.2d 888, 892
18
(D.C. Cir. 1989). We have previously noted conflicting
authority as to whether a criminal defendant—as opposed to
the extraditing state—has standing to assert the doctrine of
speciality. See id. at 892 n.1 (collecting cases). But even
assuming Lopesierra can make this claim, see id. (declining to
resolve this question and proceeding to the merits), it is
without merit. We agree with the other circuits to have
considered this question that the doctrine of specialty governs
prosecutions, not evidence. See, e.g., United States v. Garcia,
208 F.3d 1258, 1261 (11th Cir. 2000), vacated on other
grounds, 531 U.S. 1062 (2001); Leighnor v. Turner, 884 F.2d
385, 390 (8th Cir. 1989). Testimony about the 1996 incident
was introduced only as evidence of the crime for which
Lopesierra was extradited, the 1999–2002 conspiracy.
Because he was never prosecuted for any crime stemming
from the 1996 incident, the doctrine of specialty has no
bearing here.
Our review of Lopsierra’s third claim—that the jury
lacked sufficient evidence to conclude that he knew or
intended that the drugs he distributed would be imported into
the United States—is “highly circumscribed.” United States v.
Battle, 613 F.3d 258, 264 (D.C. Cir. 2010). Indeed, we must
uphold the jury's verdict if “ ‘any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt.’ ” United States v. Andrews, 532 F.3d 900,
903 n.1 (D.C. Cir. 2008) (quoting Jackson v. Virginia, 443
U.S. 307, 319 (1979)). Because Lopesierra failed to renew his
motion for judgment of acquittal at the close of all the
evidence, this already “exceedingly heavy burden” is made
“even heavier.” United States v. Booker, 436 F.3d 238, 241
(D.C. Cir. 2006) (internal quotation marks omitted). Unless
“ ‘declining to consider the sufficiency of the evidence . . .
cause[s] a manifest miscarriage of justice,’ ” id. (quoting
19
United States v. Thompson, 279 F.3d 1043, 1051 (D.C. Cir.
2002)), Lopesierra will be considered to have waived his
claim.
Viewed in the light most favorable to the prosecution, see
Andrews, 532 F.3d at 903 n.1, the evidence clearly supports
an inference of knowledge or intent. For example, witnesses
testified to Lopesierra’s statements that the drugs he
purchased were to be transported to Puerto Rico, that 462
kilograms of cocaine had in fact arrived there, and that Puerto
Rican buyers were complaining about drug quality. Given all
this, Lopesierra comes nowhere close to demonstrating the
“manifest miscarriage of justice” required for reversal.
Jury Instructions Claims
Lopesierra argues that the district court erred by
declining to give a multiple-conspiracies instruction. He
emphasizes that he had little interaction with co-defendant
Padilla and maintains that the evidence demonstrated the
existence of three distinct conspiracies—a conspiracy to
distribute cocaine knowing or intending that it would be
imported into the United States (the one charged), a
conspiracy to distribute cocaine within Puerto Rico, and a
conspiracy to commit money laundering. We review a district
court’s refusal to give a multiple-conspiracies instruction de
novo. See United States v. Brockenborrugh, 575 F.3d 726,
737 (D.C. Cir. 2009). If the record supports the existence of
multiple conspiracies, the district court errs by failing to
instruct the jury accordingly. See id.In distinguishing a single conspiracy from multiple
conspiracies, we ask “whether the participants shared a
common goal, were dependent upon one another, and were
involved together in carrying out at least some parts of the
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plan.” Id. Although Lopesierra and Padilla may have been
involved in different aspects of the conspiracy, “there is no
requirement that each conspirator [even] know the identity of
every other conspirator.” United States v. Jenkins, 928 F.2d
1175, 1178 (D.C. Cir. 1991). Rather, we have “require[d]
only that the main conspirators”—here, the higher ups in the
Osorio network, not the two defendants who went to trial—
“work with all the participants.” United States v. Hemphill,
514 F.3d 1350, 1363 (D.C. Cir. 2008). And while some of the
cocaine distributed by the Osorio group was not bound for the
United States, that fact, in and of itself, fails to demonstrate
the existence of multiple conspiracies. Not only has
Lopesierra failed to cite any support for such a proposition,
but so holding would render most drug-distribution
conspiracies subject to parsing.
Next, Lopesierra asserts that the district court should
have instructed the jury that it had to unanimously find either
“knowledge” or “intent,” the two states of mind covered by
21 U.S.C. § 959(a). Because he failed to raise this issue at
trial, we review only for plain error. See United States v. Hurt,
527 F.3d 1347, 1353 (D.C. Cir. 2008).
Lopesierra cites nothing to suggest that, where a statute
contemplates alternative states of mind, a jury must
unanimously agree about which one the defendant in fact
possessed. To the contrary, several circuits, relying on the
Supreme Court’s decision in Schad v. Arizona, 501 U.S. 624(1991), have squarely held that “a district court is not required
to instruct the jury that it must unanimously agree as to which
mens rea the defendant possessed at the time of the offense.”
United States v. Felts, 579 F.3d 1341, 1344 (11th Cir. 2009)
(per curiam). We agree. That the statute encompasses both
“knowledge” and “intent” brings it nowhere close to the
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“point at which distinct incidents go from being different
means of committing the same crime, to being different
crimes.” Hurt, 527 F.3d at 1353.
Finally, Lopesierra challenges the instruction the district
court gave when the jury sent a note explaining that it was
“having difficulty coming to a unanimous decision,”
notwithstanding eighteen hours of deliberations. In response
to the note, the district court gave a version of an “initial
instruction” listed in the Criminal Jury Instructions for the
District of Columbia—then designated Instruction 2.91, now
designated Instruction 2.601:
Your note indicates the jury has been unable, at this
point, to reach a unanimous verdict as to both
Defendants. My best judgment is that you have
been deliberating for a total of about 18 hours,
which is not unusual in a case of this duration.
Consequently, I am going to ask that you deliberate
further in this case and continue to give it your best
efforts. You may resume your deliberations
tomorrow morning. You are done for today. A good
night’s rest might be of some assistance to you.
The court also reminded the jury that it had already given a
multiple-defendant instruction, which stated that “at any time
during your deliberations you may return your verdict of
guilty or not guilty with respect to any Defendant, after which
you may resume your deliberations as to any remaining
Defendants.”
Lopesierra objects to the court’s decision to instruct the
jury to continue deliberating instead of declaring a mistrial, to
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its use of the “initial instruction” instead of the anti-deadlock
instruction we approved in United States v. Thomas, 449 F.2d
1177 (D.C. Cir. 1971) (en banc), and to its reference to the
previously given instruction about multiple defendants.
Lopesierra’s failure to request a mistrial or object renders this
claim subject only to plain-error review. See United States v.
Yarborough, 400 F.3d 17, 20 (D.C. Cir. 2005). The district
court’s instructions easily clear that low bar. The “initial
instruction” was appropriate and no more coercive than that
approved in Thomas, and its reference to the multiple
defendant instruction—which correctly stated the law—
suggested no particular result.
Sentencing Claims
In support of his first sentencing claim, Lopesierra
invokes Apprendi v. New Jersey, 530 U.S. 466 (2000), in
which the Supreme Court held that a jury must find any facts
“that increase the prescribed range of penalties to which a
criminal defendant is exposed.” Id. at 490 (internal quotation
marks omitted). According to Lopesierra, Apprendi required
the jury to find the quantity of drugs attributable to Lopesierra
individually—as opposed to the quantity attributable to the
conspiracy as a whole. But we need not resolve this issue, for
even assuming Apprendi error, such error was harmless. See
United States v. Lafayette, 337 F.3d 1043, 1049 (D.C. Cir.
2003) (Apprendi errors subject to harmless-error review).
Although the jury convicted Lopesierra for conspiracy to
import only five kilograms, record evidence shows that he
was personally involved in the importation of many times that
weight. The Puerto Rico transaction alone involved 462
kilograms. Accordingly, we have no doubt that the jury would
have found the importation of at least five kilograms to have
been reasonably foreseeable by Lopesierra himself.
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Lopesierra also challenges the substantive reasonableness
of his 300-month sentence, which fell below the 324- through
405-month guidelines range. We review such claims for abuse
of discretion. See United States v. Hall, 610 F.3d 727, 744
(D.C. Cir. 2010). Moreover, a rebuttable presumption of
reasonableness applies to sentences within the guidelines
range. See United States v. Lawrence, 662 F.3d 551, 563
(D.C. Cir. 2011). Indeed, it is “hard to imagine” how a
sentence “below the range we ordinarily view as reasonable”
could be unreasonably high. United States v. Mejia, 597 F.3d
1329, 1343 (D.C. Cir. 2010). Insisting that his sentence was
nonetheless unreasonable, Lopesierra emphasizes that his co-
defendants received more lenient sentences as a result of
pleading guilty and contends that his higher sentence thus
infringed on his Sixth Amendment right to choose trial by
jury. This claim is meritless. That some defendants pled guilty
while others did not provides a perfectly valid basis for a
sentencing disparity, see id. at 1344, and such disparity
imposed no impermissible burden on Lopesierra’s jury-trial
right, see United States v. Jones, 997 F.2d 1475, 1477–80
(D.C. Cir. 1992) (en banc).
Fundamental-Fairness Claim
Finally, Lopesierra argues that even if none of the errors
he has alleged, taken alone, requires reversal, their cumulative
effect deprived him of his right to a fundamentally fair trial.
Again, we disagree. Lopesierra was fairly tried, convicted,
and sentenced. Our laws require nothing more.
V.
For the foregoing reasons, we affirm both Lopesierra’s
conviction and his sentence.
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So ordered.