United States v. Torres-Rodriguez

United States Court of Appeals
For the First Circuit

No. 08-1900

UNITED STATES OF AMERICA,

Appellee,

v.

LUIS ROSADO-PÉREZ,

Defendant, Appellant.

Nos. 08-2164, 08-2166

UNITED STATES OF AMERICA,

Appellee,

v.

MARCOS RIVERA-PEREZ,

Defendant, Appellant.

No. 08-2181

UNITED STATES OF AMERICA,

Appellee,

v.

EMANUEL RIVERA MALDONADO,

Defendant, Appellant.
No. 08-2183

UNITED STATES OF AMERICA,

Appellee,

v.

JUAN CARLOS TORRES-RODRIGUEZ,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. José A. Fusté, U.S. District Judge]

Before

Lynch, Chief Judge,
Selya and Lipez, Circuit Judges.

Juan F. Matos de Juan for appellant Luis Rosado-Pérez.

Enrique Vélez-Rodríguez for appellant Marcos Rivera-Perez.

Anita Hill Adames for appellant Emanuel Rivera Maldonado.

Ramon Garcia-Garcia for appellant Juan Carlos Torres-
Rodriguez.

Timothy R. Henwood, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Velez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Luke Cass, Assistant United States Attorney, were on
brief for appellee.

May 14, 2010
 LYNCH, Chief Judge. The four appealing defendants were

convicted for their roles in a conspiracy to distribute cocaine,

crack cocaine, and marijuana in Barriada San Miguel, known as El

Cerro, in Naranjito, Puerto Rico, from 2005 to 2007. Three were

convicted after a jury trial, Marcos Rivera-Perez, Juan Carlos

Torres-Rodriguez, and Emanuel Rivera Maldonado; and one by a guilty

plea, Luis Rosado-Pérez. Rivera Maldonado was a corrupt municipal

police officer who aided the conspiracy.

Rivera-Perez, Torres-Rodriguez, and Rivera Maldonado each

challenge the sufficiency of the evidence for their convictions.

Rivera-Perez and Torres-Rodriguez also argue that the government

improperly presented an overview witness. We affirm. The evidence

sufficed, and a government agent witness did not give improper

overview testimony. He appropriately testified from personal

knowledge and explained drug activity and coded language to the

jury, based on his experience.

Rosado-Pérez argues, for the first time on appeal, that

he did not understand the terms of his plea and that the district

court did not ascertain that a sufficient factual basis supported

his plea. On plain error review, we affirm, finding no error at

all.

-2-
 I. FACTUAL BACKGROUND

The structure of the conspiracy and the appellants' roles

in it are described below as a rational jury could have found;

further facts relevant to the claims on appeal follow.

Between 2005 and 2007 Manuel Chevres-Motta, not a party

to these appeals, led an organization that distributed cocaine,

crack cocaine, heroin, and marijuana in the El Cerro ward of

Naranjito. Each of the appellants worked for Chevres-Motta, in

various roles.

Chevres-Motta's drug organization sold only to known or

vouched-for clients, usually from El Cerro. El Cerro's geography,

which sets it apart from the rest of Naranjito, also limited the

scope of this organization's drug trade. El Cerro rests atop a

hill, and only one road, which cuts through El Cerro, connects it

to Naranjito.

El Cerro "runners" supplied street dealers with drugs and

ensured the dealers gave correct money to Chevres-Motta. "Sellers"

then sold those drugs at regular drug points in El Cerro, including

a basketball court and a nearby stairwell. Sellers sold small

packets of drugs out of black fanny packs, a characteristic of the

El Cerro organization. "Escorts," usually local drug users,

brought clients to drug points and vouched for them.

Luis Rosado-Pérez supervised the cocaine trade for

Chevres-Motta. Marcos Rivera-Perez was a seller. Juan Carlos

-3-
Torres-Rodriguez "cooked" cocaine hydrochloride into crack cocaine.

And Rivera Maldonado, a Naranjito municipal police officer,

provided information to the group.

The conspiracy first came to the attention of law

enforcement during a separate drug and money laundering

investigation. A confidential informant in that case set up a

meeting to sell drugs; Rolando Motta-Morales, a member of the

conspiracy in this case, came to that drug meeting. For two months

in 2006, federal officials wiretapped Motta-Morales's phone and

learned that Motta-Morales cooked crack cocaine for his cousin,

Chevres-Motta. They also learned that Torres-Rodriguez was Motta-

Morales's neighbor and cooked crack with Motta-Morales, and that

Rivera Maldonado was Motta-Morales's cousin and brother-in-law, as

well as a corrupt officer.

Federal officers investigated the El Cerro drug

organization for almost two years. Investigators conducted

personal and video surveillance, wiretapped phones, completed about

thirteen controlled drug buys through an undercover police officer

buyer, and used a confidential informant from El Cerro.

On September 26, 2007, a federal grand jury handed up a

twenty-eight-count indictment against thirty individuals, including

the four on appeal in this case, for their participation in the

conspiracy. The defendants in this case were charged in count one

with conspiracy to possess with intent to distribute controlled

-4-
substances, 21 U.S.C. § 846, and in count twenty-eight with

criminal forfeiture, id. §§ 853, 881.1

On May 2, 2008, a jury convicted Rivera-Perez, the

seller, Torres-Rodriguez, the crack cooker, and Rivera Maldonado,

the corrupt officer, on the conspiracy count, count one. The jury

also imposed criminal forfeiture on Rivera-Perez and Torres-

Rodriguez. On August 11, 2008, the district court sentenced

Rivera-Perez and Torres-Rodriguez to 120 months in prison and

Rivera Maldonado to 48 months in prison. It also sentenced all

three defendants to five years' supervised release and a $100

special assessment.

Earlier, on March 14, 2008, Luis Rosado-Pérez, the

supervisor of the cocaine trade, had pled guilty to the conspiracy

and forfeiture counts, specifically to conspiring to distribute

between 1.5 and 4.5 kilograms of crack cocaine. That quantity,

combined with Rosado-Pérez's criminal history category, gave him a

base offense level of 33 after a three-level downward departure for

acceptance of responsibility. Rosado-Pérez's sentencing guidelines

range was 135 to 168 months. The government, per the plea

agreement, recommended a sentence of 135 months in prison, which

the court accepted and imposed.

1
Marcos Rivera-Perez was also charged in count twenty-
seven with dealing in firearms without a license, 18 U.S.C.
§ 922(a)(1)(A). That charge was not submitted to the jury and was
dismissed at sentencing.

-5-
II. CLAIMS OF MARCOS RIVERA-PEREZ, JUAN CARLOS TORRES-RODRIGUEZ,
AND EMANUEL RIVERA MALDONADO AS TO THEIR CONVICTIONS

Three defendants argue that the evidence of intent and

agreement to participate in the conspiracy was insufficient for a

conviction. Rivera-Perez and Torres-Rodriguez also argue that the

court erred in admitting the testimony of Federal Bureau of

Investigation Special Agent Regino Chavez, alleging Chavez gave

improper "overview" testimony. We reject both claims.

A. Sufficiency of the Evidence

We review the sufficiency of the evidence for a

conviction de novo. United States v. Azubike, 564 F.3d 59, 64 (1st

Cir. 2009). We take the evidence and draw all reasonable

inferences in the light most favorable to the prosecution. Id. If

a reasonable jury could find the defendants guilty beyond a

reasonable doubt of all elements of the charged offense, we must

affirm the conviction. Id.

On count one, the prosecution had to prove, through

direct or circumstantial evidence, beyond a reasonable doubt that

"each defendant knowingly and voluntarily agreed with others" to

distribute drugs. United States v. Rivera Calderón, 578 F.3d 78,

88 (1st Cir. 2009). Evidence of a knowing agreement could include

evidence that the defendants took actions that furthered the

conspiracy's goals. United States v. García-Pastrana, 584 F.3d

351, 377 (1st Cir. 2009).

-6-
 1. Marcos Rivera-Perez

Marcos Rivera-Perez admits on appeal, as he conceded

while testifying at trial, that he sold drugs in El Cerro, but he

says the evidence did not show he sold drugs for the Chevres-Motta

conspiracy.

Sufficient evidence connected Rivera-Perez to the

Chevres-Motta conspiracy. Both a lead investigator in the case and

a confidential informant identified him and testified that he sold

drugs in El Cerro. Videos showed him selling drugs from black

fanny packs, as the conspiracy's other sellers did. Rivera-Perez

was shown selling drugs from the stairwell near the basketball

court, a regular drug point for this conspiracy. Videos showed

Rivera-Perez selling to, interacting with, and standing nearby

known conspiracy members and clients.

A jury could easily reject the idea that Chevres-Motta

and his coconspirators would permit a competing drug dealer to sell

in the heart of their small, isolated neighborhood at one of their

usual drug points. A reasonable juror instead could conclude that

Rivera-Perez sold drugs for this conspiracy and therefore agreed

and intended to further its aims.

2. Juan Carlos Torres-Rodriguez

Torres-Rodriguez, the crack cooker, who lived twenty

minutes from El Cerro, also argues that the evidence showed at most

-7-
he cooked crack with his neighbor, Motta-Morales, but not for the

rest of the El Cerro conspiracy led by Chevres-Motta.

The evidence was sufficient. In several phone calls,

played at trial, Torres-Rodriguez and Motta-Morales discussed

cooking crack together. The evidence supported the jury's

conclusion that they were collaborating to cook crack for Chevres-

Motta's El Cerro organization for two reasons.

First, the jury heard many phone calls in which Motta-

Morales discussed his work as a cooker with a number of conspiracy

members over a period of months. In particular, Motta-Morales

discussed his work with the conspiracy leader, Chevres-Motta, who

was Motta-Morales's cousin. He reported his progress cooking

crack, discussed how to buy more cocaine to cook, and planned how

to deliver drugs to Chevres-Motta and receive payment.

Second, many calls played before the jury between Torres-

Rodriguez and Motta-Morales supported the inference that they were

working for Chevres-Motta, since they referenced Chevres-Motta

several times by his street name. Motta-Morales reported to

Torres-Rodriguez Chevres-Motta's instructions and comments about

their work cooking crack, and he did so once shortly after he had

ended a call with Chevres-Motta.

3. Emanuel Rivera Maldonado

Rivera Maldonado, the former Naranjito municipal police

officer, urges that the evidence did not show that he intended to

-8-
help a drug conspiracy or even that he knew he had spoken with a

conspiracy member; he says he was simply helping family. He did,

from his position as a police officer, provide help to the

conspiracy, and a reasonable jury could conclude that he knew what

he was doing and intended to assist the drug conspiracy. Phone

calls captured on the wiretap between Rivera Maldonado and Rolando

Motta-Morales, who cooked for the El Cerro group, linked Rivera

Maldonado to the larger conspiracy. Rivera Maldonado was Motta-

Morales's cousin and brother-in-law. A jury could have reasonably

concluded that, in those calls, Rivera Maldonado gave Motta-Morales

confidential police information to help Motta-Morales avoid police

detection.

On March 2, 2008, Motta-Morales called Rivera Maldonado.

Motta-Morales reported that a white Ford Mustang had been following

him and provided the car's license plate. Two officers

investigating the conspiracy had been using that car that day for

surveillance.

In response to this report, Rivera Maldonado went through

police channels and learned that the license plate was

unregistered. In Puerto Rico, unregistered license plates

typically denote law enforcement vehicles. Although he knew this

information was confidential and its release could jeopardize a

police investigation, Rivera Maldonado called Motta-Morales and

reported that the license plate was unregistered. Rivera Maldonado

-9-
warned Motta-Morales to be careful and acknowledged that the plate

could belong to a police vehicle.

The officers in the vehicle, realizing from the wiretap

their cover was blown, then tested for the source of the leak.

They drove the white Mustang to the police station on March 3.

Rivera Maldonado came out and inspected the car in the parking lot.

The officers approached Rivera Maldonado, told him they were using

the car to locate a fugitive in Palmarito, and asked Rivera

Maldonado for help. Rivera Maldonado told them his cousin, who

lived in that area, had reported that car was watching him. He

called Motta-Morales, while standing with the investigators, and

told Motta-Morales that the car belonged to police.

About three hours later, Rivera Maldonado again called

Motta-Morales and encouraged him to help find the fugitive, stating

that police would leave the area once the fugitive was captured.

Motta-Morales agreed that he would prefer less police presence near

his home, observing that the police were placing too much "heat" on

his "place." On March 9, 2008, Rivera Maldonado called Motta-

Morales again to report having seen strange cars on property Motta-

Morales's family owned.

The jury could reasonably reject Rivera Maldonado's story

that he gave his cousin the license plate information because

another drug dealer, "El Gordo," had threatened Motta-Morales's

life. Rivera Maldonado testified that he believed the car could

-10-
belong to El Gordo and did not know his cousin was involved in the

El Cerro drug conspiracy. Rivera Maldonado admitted, however, that

he was aware that Motta-Morales knew Chevres-Motta and that

Chevres-Motta ran a drug ring in El Cerro. And although he claimed

he believed Motta-Morales's life was in danger, he never made a

report of Motta-Morales's phone call or took steps to protect him

from a death threat.

A jury also could have inferred that Rivera Maldonado

intended to further the conspiracy's aims by helping Motta-Morales

avoid police detection. Rivera Maldonado knew that he gave Motta-

Morales confidential information that could risk other officers'

investigation and even lives. Rivera Maldonaldo also counseled his

cousin to be careful and to help locate the fugitive, which would

remove police scrutiny from Motta-Morales's area.

B. "Overview" Testimony by Agent Chavez

Evidentiary objections, including to overview testimony,

are reviewed for abuse of discretion when they were preserved and

for plain error when they were not.2 See United States v. Hall,

434 F.3d 42, 56-57 (1st Cir. 2006); United States v. Casas, 356

F.3d 104, 113 (1st Cir. 2004). Even if there was an error,

however, we affirm if it was harmless. See Hall, 434 F.3d at 57.

2
The defendants did not always clearly object to the
foundation for Agent Chavez's testimony. Although they may not
have preserved every concern they raise on appeal, we treat their
objections under the abuse-of-discretion standard.

-11-
 Rivera-Perez, the seller, and Torres-Rodriguez, the crack

cooker, object to the lay witness testimony of Special Agent Regino

Chavez, who was a lead investigator on this case. While Agent

Chavez was testifying, the government played for the jury video

tapes of conspiracy members participating in drug activity and

wiretap recordings of phone conversations between conspirators.3

On appeal, the defendants argue that eighteen portions of this

testimony were improper "overview" testimony.

We break those portions into two categories. First, the

defendants object to Chavez's testimony that placed the videos and

recordings in the context of this conspiracy. He identified

members of the conspiracy and their roles and related what they

were doing and saying to the broader conspiracy. Second, they

contest Chavez's testimony translating for the jury how actions

taken on the video and statements made in the recordings related to

drug activity. Chavez identified drug activity and interpreted

coded language.

We have previously cautioned that prosecutors should not

permit investigators to give overview testimony, in which a

government witness testifies about the results of a criminal

investigation, usually including aspects of the investigation the

3
The government played digital copies of video recordings
made on tape, after Agent Chavez testified that he had seen the
original recordings and the digital copies were identical. Torres-
Rodriguez's argument that the digital copies violated the best
evidence rule is meritless. See Fed. R. Evid. 1003.

-12-
witness did not participate in, before the government has presented

supporting evidence. Overview testimony at times involves a

witness's assertion of facts not based on his own knowledge when

those facts are not otherwise proven. E.g., United States v.

Rodriguez, 525 F.3d 85, 95-96 (1st Cir. 2008); Casas, 356 F.3d at

118-20.

The prohibition on overly broad overview testimony arises

from the basic principle in the Federal Rules of Evidence that

witnesses, other than experts giving expert opinions, should

testify from personal knowledge. See Fed. R. Evid. 602, 701, 802;

see also, e.g., Casas, 356 F.3d at 118-20 (criticizing overview

testimony because it was not based on the witness's personal

knowledge); United States v. Mazza, 792 F.2d 1210, 1214-16 (1st

Cir. 1986) (holding that an officer's testimony was inadmissible

hearsay when he gave an overview of an investigation based in part

on what other officers told him). A foundation should be laid

establishing the basis of a witness's knowledge, opinion, or

expertise. See Fed. R. Evid. 602, 701, 702; see also, e.g., United

States v. García-Morales, 382 F.3d 12, 17 (1st Cir. 2004)

(criticizing overview testimony "that [the defendant] was a member

of the drug conspiracy, even though the prosecution had not yet

introduced evidence supporting this conclusion"); 6 J.B Weinstein

& M.A. Berger, Weinstein's Federal Evidence § 1006.04[3], at 1006-

14 (J.M. McLaughlin ed., 2d ed. 2006) ("It is improper . . . for a

-13-
party to open its case with an overview witness who summarizes

evidence that has not yet been presented to the jury.").

The district court did not abuse its discretion in

admitting Chavez's testimony about how the videos and wiretap

recordings fit into the rest of the conspiracy as based on Chavez's

personal knowledge. The prosecution laid a foundation that Chavez

had personal knowledge of the conspiracy and its membership. He

was a lead investigator; went to El Cerro at least fifty times; and

repeatedly participated in video and personal surveillance, wiretap

surveillance, and controlled drug buys. He testified that his

knowledge was based on his personal observations.

If a proper foundation is laid, government witnesses may

testify about matters within their personal knowledge and give lay

or, if qualified, exert opinion testimony. Relevant here, we have

long held that government witnesses with experience in drug

investigations may explain the drug trade and translate coded

language for juries, either through lay or, if qualified, expert

testimony. See United States v. Santiago, 560 F.3d 62, 66 & n.1

(1st Cir. 2009). This testimony is not overview testimony and is

properly admitted. See Casas, 356 F.3d at 119.

Chavez's testimony translating the videos and wiretap

recordings helped the jury understand evidence it was hearing and

seeing. E.g., Santiago, 560 F.3d at 66. The jury could

independently evaluate Chavez's interpretations, and the defendants

-14-
exhaustively cross-examined Chavez about possible alternative

interpretations.

III. CLAIMS OF LUIS ROSADO-PÉREZ AS TO HIS PLEA

Rosado-Pérez argues on appeal that his plea was invalid

because the district court did not ensure that he knowingly and

voluntarily entered into several terms of his plea or ascertain

that a factual basis existed for his plea. Fed. R. Civ. P.

11(b)(2), (3).

Rosado-Pérez concedes that he did not raise these

objections in the district court, and so our review is for plain

error. United States v. Torres-Oliveras, 583 F.3d 37, 40-41 (1st

Cir. 2009); United States v. Serrano-Beauvaix, 400 F.3d 50, 53 (1st

Cir. 2005). Rosado-Pérez must demonstrate that the district court

committed clear error affecting his substantial rights that

undermined the "fairness, integrity, or public reputation of

judicial proceedings." Torres-Oliveras, 583 F.3d at 41. To show

his substantial rights were affected, Rosado-Pérez must "show a

reasonable probability that, but for the [Rule 11] error, he would

not have entered the plea." United States v. Borrero-Acevedo, 533

F.3d 11, 16 (1st Cir. 2008) (quoting United States v. Dominguez

Benitez, 542 U.S. 74, 76 (2004)) (alteration in original) (internal

quotation marks omitted).

-15-
A. Voluntariness of Rosado-Pérez's Plea

Rosado-Pérez argues that he did not understand the type

and amount of drugs he was pleading to having conspired to

distribute or that he was waiving his right to have the court

consider further sentence reductions under 18 U.S.C. § 3553(a).4

Even if Rosado-Pérez could demonstrate that he would not

have otherwise pled guilty, which he has not, he cannot show the

court committed any error, much less plain error, by accepting his

plea.5 The prosecutor reported, in Rosado-Pérez's presence, each

of the three terms Rosado-Pérez claims he misunderstood. The

district court then explained them again to Rosado-Pérez and asked

whether the defendant understood. Rosado-Pérez confirmed that he

did.

It is true there was some discussion at sentencing about

the type and quantity of drugs Rosado-Pérez had pled to conspiring

to distribute. But after reviewing the plea colloquy transcript,

4
Rosado-Pérez also argues that he did not understand the
prosecutor's statement that several terms of his plea agreement
mirrored the terms for other defendants in the case. The
prosecutor said that, like the other defendants, Rosado-Pérez was
waiving his right to appeal and to other downward departures or
sentence reductions under 18 U.S.C. § 3553(a).
There was no plain error or even confusion about these terms.
The prosecutor proceeded to discuss these terms in greater depth,
and the district court ensured that Rosado-Pérez understood them.
5
The prosecution does not press the waiver-of-appeal
provision of his plea before this court. We therefore need not
address Rosado-Pérez's claim that he did not understand his waiver
of appeal.

-16-
the court, the prosecutor, and even defense counsel agreed that

Rosado-Pérez unambiguously pled to conspiring to distribute 1.5 to

4.5 kilograms of crack cocaine. Not only did Rosado-Pérez agree,

during the plea colloquy, that he was pleading to having conspired

to distribute crack, but he later asked what effect recent

amendments to crack sentencing would have on his sentence.

Moreover, this drug type and amount corresponded accurately to the

base offense level to which Rosado-Pérez pled.

B. The Factual Basis for Rosado-Pérez's Plea

Before accepting a guilty plea, a district court must

find that a factual basis exists for the defendant's plea. Fed. R.

Crim. P. 11(b)(3). We look at the offense the defendant has pled

to committing and ask whether "the plea has a rational basis in

facts that the defendant concede[d] or that the government

proffer[ed] as supported by credible evidence." Serrano-Beauvaix,

400 F.3d at 53 (quoting United States v. Gandia-Maysonet, 227 F.3d

1, 6 (1st Cir. 2000)) (internal quotation marks omitted).

The district court explained every element of count one,

conspiracy to possess with the intent to distribute narcotics. The

court explained both the elements of a conspiracy and the elements

of possession of narcotics with intent to distribute. Rosado-Pérez

confirmed that he was admitting he committed that offense by

acknowledging that he had acted as the district court recited and

as the prosecutor had suggested in his version of the offense.

-17-
Then Rosado-Pérez admitted the type and amount of narcotics

underlying that offense.

Rosado-Pérez argues that the court committed plain error,

first, by not ascertaining the time frame of the conspiracy. The

district court ascertained the facts essential to the offense

Rosado-Pérez was admitting he committed; it did not need to go into

such great factual detail. Cf. United States v. Jiminez, 498 F.3d

82, 87 (1st Cir. 2007) (noting that the facts established at a plea

colloquy need only "touch all the bases" and need not develop the

defendant's guilt in depth).

Rosado-Pérez also argues that the kind of drug he was

pleading to was not adequately established because the prosecutor

offered to stipulate that Rosado-Pérez had conspired to distribute

powder rather than crack cocaine.6 In the end, Rosado-Pérez

explicitly admitted to distributing crack and pled to conspiring to

distribute crack, and that plea was the basis of his sentence.

That admission provided a sufficient factual basis for the court to

accept his plea, and there was no error.

6
At his plea colloquy, Rosado-Pérez's attorney stressed
that, although his client was pleading to having conspired to
distribute crack, the government had agreed to a sentence at the
low end of Rosado-Pérez's guidelines range. The prosecutor
responded that, if the defendant was worried, the government would
stipulate that Rosado-Pérez had distributed an amount of powder
rather than crack cocaine that would have produced an identical
guidelines range. The defense apparently did not accept this
offer.

-18-
 IV.

We affirm the judgments of conviction.

-19-