07-2912-cr(L), 08-6210-cr(CON)
USA v. Ramirez
1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3 _____________________
4 August Term, 2009
5 (Argued: December 17, 2009 Decided: June 29, 2010)
6 Docket Nos. 07-2912-cr(L), 08-6210-cr(CON)
7 _____________________
8 UNITED STATES OF AMERICA ,
9 Appellee,
10 — v .—
11 ARCADIO RAMIREZ, JOSÉ LUIS RODRIGUEZ,
12 Appellants-Defendants,
13 ALEX LUNA ,
14 Defendant.
15 Before: CALABRESI, CABRANES, AND B.D. PARKER, Circuit Judges.
16 ___________________
17 Appeal from convictions for conspiracy to distribute cocaine, challenging the admission of police
18 officer’s rebuttal testimony under the “impeachment by contradiction doctrine.” Affirmed.
19 ___________________
20 Robert J. Sullivan, Jr., Westport, CT, for
21 Defendant-Appellant Rodriguez.
22 Barry A. Weinstein, Goldstein & Weinstein, Bronx,
23 NY, for Defendant-Appellant Ramirez.
1
1 Harold H. Chen, Assistant United States Attorney
2 (William J. Nardini, Assistant United States
3 Attorney, on the brief), for Nora R. Dannehy,
4 United States Attorney, District of Connecticut,
5 New Haven, CT, for Appellee United States of
6 America.
7 ________________________________________________________________________
8 BARRINGTON D. PARKER, CIRCUIT JUDGE:
9 This appeal stems from the defendants' convictions in the United States District Court for the
10 District of Connecticut (Underhill, J.) for their participation in a large-scale cocaine trafficking
11 conspiracy. The indictment charged Rodriguez with being a major supplier of cocaine to a Danbury,
12 Connecticut drug distribution network from 2002 to 2005, and charged Ramirez with similar conduct
13 from 1998 to 2005. Ultimately, Rodriguez was convicted of conspiracy to distribute 5 kilograms of
14 cocaine or 50 grams of cocaine base, and Ramirez for 500 grams of cocaine or 5 grams of cocaine
15 base. See 21 U.S.C. §§ 841(a)(1), 841(b)(1), 846.
16 On appeal, Rodriguez challenges his conviction on two separate grounds, while Ramirez
17 challenges his sentence. Rodriguez argues that two rebuttal witnesses – police officer Waldo Cuba
18 and Maria Robles – should not have been permitted to testify about collateral matters, and that their
19 testimony severely prejudiced his defense. He also complains that the bill of particulars filed by the
20 government on the eve of trial was inadequate, and that the indictment should have been dismissed.
21 Ramirez, for his part, claims that the sentencing judge improperly found him responsible for 15
22 kilograms of cocaine, resulting in a 204-month sentence, after the jury expressly rejected such a large
23 drug quantity in its special interrogatory responses. Thus, according to Ramirez, the district court
24 improperly relied on "acquitted conduct" to establish drug quantity at sentencing.
25 We find that the district court erred in admitting Officer Cuba's testimony to impeach
26 Rodriguez. Nonetheless, we affirm his conviction, ultimately finding this error harmless. Because
2
1 we reject Rodriguez's other claims, as well as Ramirez's sentencing challenge, the defendants'
2 convictions and sentences are affirmed.
3 I. BACKGROUND
4 The defendants were charged and convicted for their roles in a drug distribution conspiracy
5 involving the weekly transport of cocaine from Brooklyn, New York to Danbury, Connecticut.
6 Co-conspirator José Adames (also known as "Pompa" or "Ponpa") led the trafficking operation.
7 From 2002 to 2005, Rodriguez was alleged to be Adames's driver for many of the trips to Danbury,
8 where the drugs were purchased for resale by Alex Luna, another co-conspirator. Ramirez, in his
9 role, also often accompanied Adames to Connecticut, and was responsible for supplying and
10 distributing cocaine in Brooklyn over an even longer period.
11 Rodriguez was arrested in Massachusetts and, according to the testimony of one of the
12 arresting officers, confessed to his role in the conspiracy while being transported back to Connecticut
13 for prosecution. At trial, the government also offered the testimony of three other co-conspirators
14 who described Rodriguez's involvement with Adames, Luna, and Ramirez in regular cocaine
15 transactions. Finally, the government presented video surveillance of Rodriguez meeting with
16 Adames and Luna in Danbury, although the video did not show any drugs changing hands.
17 Rodriguez testified in his own defense. He foreswore any knowing involvement in the
18 narcotics conspiracy and denied the alleged confession. Instead, he claimed that, although he had
19 acted as Adames's driver over a period of years, he had no knowledge of any drug transactions.
20 According to Rodriguez, he came to know Adames socially, through friends and family; when
21 Rodriguez later lost his job, Adames began to ask Rodriguez to drive him places, including Danbury,
22 to visit relatives. Rodriguez testified that he never saw or knew of any cocaine on these trips.
23 Because he was without work, Rodriguez says he continued to chaffeur Adames periodically until
3
1 late 2004 when Rodriguez's mother warned him that Adames was thought to be involved with drugs.
2 Rodriguez claims that he confronted Adames about these rumors and, although they were denied,
3 that he subsequently distanced himself from Adames.
4 The government sought to undermine Rodriguez's defense by, among other things,
5 cross-examining him about his contact with drugs during this period. Relying on Rodriguez's denial
6 of any involvement with cocaine on both direct and cross-examination, the government also sought
7 to introduce the rebuttal testimony of police officer Waldo Cuba and Alex Luna’s girlfriend, Maria
8 Robles. In particular, Officer Cuba reported seeing Rodriguez handling cocaine during an unrelated
9 drug stop shortly after the conspiracy had ended. Robles, for her part, testified about Rodriguez’s
10 involvement with drug trafficking during the indicted period. The trial court acknowledged that this
11 testimony had the potential to be extremely damaging; nonetheless, over Rodriguez’s objections, it
12 admitted the testimony of both witnesses.
13 Ultimately, the jury convicted each defendant of conspiracy to possess with intent to
14 distribute cocaine, in violation of 21 U.S.C. §§ 841, 846. Rodriguez was subsequently sentenced
15 to 120 months imprisonment, while Ramirez was sentenced to 204 months imprisonment.
16 II. RODRIGUEZ
17 A. Admission of impeachment testimony
18 Rodriguez claims that the district court erred when it permitted the rebuttal testimony of
19 Cuba and Robles. The testimony of both witnesses was offered to prove that Rodriguez had had
20 previous contact with drugs, thereby impeaching his statements to the contrary as well as his overall
21 credibility. Officer Cuba provided testimony describing Rodriguez's involvement in a separate
22 drug-related stop in Queens on March 30, 2005. Importantly, this stop occurred after the period of
23 the charged conspiracy and, in fact, after Adames had already been arrested. Cuba testified that,
4
1 while posted with the Special Narcotics Enforcement Unit, he had seen Rodriguez outside a vehicle
2 placing what appeared to be plastic bags of cocaine into a small plastic box. Cuba subsequently
3 followed the vehicle and radioed his fellow officers, who pulled Rodriguez over and arrested the
4 SUV's two occupants. The arrest report indicates that Rodriguez later received an adjournment in
5 contemplation of dismissal ("ACD") and that all records relating to the incident were sealed. In view
6 of this fact, the prosecution was unable to account for how it had received a copy of the sealed arrest
7 report, claiming that it mysteriously arrived by fax with no identifiable source.
8 In her testimony, Maria Robles, briefly described a conversation with Rodriguez while the
9 conspiracy was ongoing, in which he recounted swallowing "balloons" of cocaine in order to
10 smuggle them into the country from the Dominican Republic. She also reported seeing Rodriguez
11 accompany Adames on drug deliveries to Danbury on a weekly basis, and stated that Rodriguez had
12 made deliveries alone on two or three occasions.
13 1. Standard of review
14 In general, we will not overturn the district court's decision to admit or reject evidence absent
15 an abuse of discretion. See United States v. Esdaille, 769 F.2d 104, 108 (2d Cir. 1985). Even if we
16 conclude that the admission of the rebuttal testimony here was in error, the government contends that
17 any such error was harmless. See Fed. R. Crim. P. 52(a); United States v. Madori, 419 F.3d 159, 168
18 (2d Cir. 2005). Broadly speaking, the erroneous admission of evidence is harmless where it "had
19 no substantial and injurious effect or influence on the jury verdict," judged in relation to the total
20 evidence on the issue in question. United States v. Garcia, 413 F.3d 201, 217 (2d Cir. 2005)
21 (quotation marks omitted).
22 2. Analysis
5
1 Generally, the Federal Rules of Evidence bar the admission of extrinsic evidence, like Officer
2 Cuba’s testimony, related to the past conduct of a witness. The government concedes as much,
3 acknowledging that the testimony related to an entirely collateral matter and did not serve as proof
4 of the charged offense. Indeed, because Rodriguez's March 30, 2005 arrest occurred after the end
5 of the indicted conspiracy, Officer Cuba's rebuttal testimony would normally have been precluded
6 by Federal Rule of Evidence 608(b), which prohibits extrinsic evidence of exactly this kind.
7 Nonetheless, the government argues that this evidence was admissible for the purpose of
8 "impeachment by contradiction," which operates as a limited exception to Rule 608(b). "Where a
9 defendant testifies on direct about a specific fact, the prosecution is entitled to prove . . . that he lied
10 as to that fact." United States v. Beverly, 5 F.3d 633, 639-40 (2d Cir. 1993) (permitting use of
11 extrinsic evidence). More precisely, this doctrine provides that when a witness puts certain facts at
12 issue in his testimony, the government may seek to rebut those facts, including by resorting to
13 extrinsic evidence if necessary. According to the government, the point of this exception is that a
14 defendant may not invoke the Federal Rules of Evidence in order to shield his perjury from
15 contradiction.
16 The government contends that Rodriguez's statements on both direct and cross-examination
17 triggered the exception, but the trial record simply does not bear out this rationale. It is an open
18 question in our Court whether the government can present extrinsic evidence to impeach by
19 contradiction a statement made by the defendant on cross-examination, where such evidence would
20 otherwise be barred by the Federal Rules of Evidence.1 We need not resolve this question because,
1
We have previously held that a defendant’s statements on cross-examination may be impeached
by evidence otherwise suppressed under the exclusionary rule. See United States v. Atherton, 936 F.2d
728, 734 (2d Cir. 1991) (citing United States v. Havens, 446 U.S. 620 (1980)); Beverly, 5 F.3d at 639-40
(stating, in dicta, that "[t]he same holds true for defendant's false statements on cross-examination").
However, like other courts, we have been reluctant to extend this principle to evidence prohibited by the
Federal Rules of Evidence, which often serve different policy goals. See United States v. Lawson, 683
6
1 as a factual matter, Officer Cuba did not impeach either Rodriguez's testimony on direct examination
2 or his responses on cross-examination.
3 By highlighting Rodriguez’s unrelated stop while in possession of cocaine, Officer Cuba's
4 rebuttal testimony was purportedly offered to impeach Rodriguez's statements that he had never seen
5 or handled drugs. Yet Rodriguez never gave the testimony that the government ascribes to him. The
6 transcript is pellucid that on both direct and cross-examination, Rodriguez was responding to a series
7 of questions about his work for Adames and the time-period covered by the alleged conspiracy. For
8 instance, at the end of a lengthy colloquy focused on Adames's activities from 2001 to 2004, defense
9 counsel asked Rodriguez:
10 Def. Counsel: During the time that you were just describing, did you see any deliveries of
11 drugs of any kind?
12 Rodriguez: No, I never see no drugs.
13 Gov't App'x at 118-19 (emphasis added). The government pins its rebuttal claim on this testimony,
14 yet it is abundantly clear from the context that Rodriguez was not issuing a blanket denial of ever
15 having seen drugs.
16 The very same is true of Rodriguez's cross-examination testimony, where he was asked about
17 his activities during the charged conspiracy:
18 Gov't: Mr. Rodriguez, you're claiming you never saw any drugs in this whole time
19 period, correct?
20 Rodriguez: No, never.
21 Gov't: Except for marijuana. You saw marijuana, right?
22 Rodriguez: Yes.
F.2d 688, 692 (2d Cir. 1982) (distinguishing Havens because “[a] principal purpose of the exclusionary
rule under Miranda is to deter police officers while Rules 410 and 11(e)(6) are designed to encourage
plea bargaining”); see also Walder v. United States, 347 U.S. 62, 66 (1954) (prohibiting impeachment
evidence where the government had “smuggle[d] in” the impeaching opportunity in the course of cross-
examination) (citing Agnello v. United States, 269 U.S. 20, 35 (1925)); United States v. Pantone, 609
F.2d 675, 683 (3d Cir. 1979); United States v. Warledo, 557 F.2d 721, 726 (10th Cir. 1977); United
States v. Lambert, 463 F.2d 552, 557 (7th Cir. 1972).
7
1 Gov't: Okay, but you never saw cocaine?
2 Rodriguez: No.
3 Gov't App'x at 134 (emphasis added). The government points to no instances where Rodriguez
4 forswore, as a universal matter, ever having seen drugs of any kind. Compare Walder v. United
5 States, 347 U.S. 62, 65 (1954). Nor did his reference to having had “a little problem before” provide
6 a predicate for admitting Officer Cuba's testimony about the arrest. The government contends that
7 this “little problem” referred to the drug stop, which opened the door to its rebuttal testimony. But
8 reading Rodriguez’s statement in context, again, makes clear that he was referring to an earlier event
9 – as he allegedly decided to distance himself from Adames – not an arrest that occurred after the
10 conspiracy's conclusion: "[Y]ou know, I don't want to get no more trouble, so I think Mom was right
11 at that time." Most of all, none of these statements show that Rodriguez staked his credibility before
12 the jury on any expansive assertion about lifelong avoidance of drugs. Indeed, the government
13 inaccurately characterizes the trial record when it suggests as much.
14 As a result, we see no basis for admitting Officer Cuba's testimony under the "impeachment
15 by contradiction" doctrine and conclude that it should have been barred by Federal Rule of Evidence
16 608(b). On the other hand, we sustain the district court’s admission of Maria Robles's testimony.
17 That testimony – describing Rodriguez's transport and delivery of cocaine – related to the charged
18 conspiracy, and contradicted Rodriguez's statement on direct examination that he had no contact with
19 drugs during the relevant period. We cannot say that the admission of this evidence was an abuse
20 of discretion.
21 3. Harmless Error
22 "A district court's erroneous admission of evidence is harmless if the appellate court can
23 conclude with fair assurance that the evidence did not substantially influence the jury." United States
24 v. Al-Moayad, 545 F.3d 139, 164 (2d Cir. 2008) (internal quotation marks omitted). In reviewing
8
1 for harmless error, "we principally consider (1) the overall strength of the prosecution's case; (2) the
2 prosecutor's conduct with respect to the improperly admitted evidence; (3) the importance of the
3 wrongly admitted [evidence]; and (4) whether such evidence was cumulative of other properly
4 admitted evidence." United States v. Kaplan, 490 F.3d 110, 123 (2d Cir. 2007) (internal quotation
5 marks omitted). We have frequently stated that the strength of the government's case is the most
6 critical factor in assessing whether error was harmless. See, e.g., United States v. Lombardozzi, 491
7 F.3d 61, 76 (2d Cir. 2007).
8 There is no question that a police officer's testimony about a previous unrelated drug stop can
9 prove extremely damaging to a defendant at trial. It functions essentially as evidence of criminal
10 propensity and presents exactly the risk of undue prejudice that the Federal Rules of Evidence are
11 designed to guard against. We do not treat the erroneous admission of such evidence lightly, and
12 we weigh its effect on the jury carefully. Cf. United States v. McCallum, 584 F.3d 471, 478 (2d Cir.
13 2009) ("In a different case, in which . . . the government's other evidence was not overwhelming, or
14 where the other harmless error factors tilted more strongly in the defendant's favor, or where the
15 government's summation emphasized the prior [misconduct], a different result could well be
16 indicated.").
17 Even with these precautions, we conclude that the government's evidence was sufficiently
18 conclusive and its case sufficiently robust such that the error in Rodriguez's case was harmless. The
19 government introduced a series of co-conspirators who testified to Rodriguez's knowing involvement
20 in the cocaine trafficking operation. Nelson Rosa testified about cocaine deliveries Rodriguez made
21 to him in Danbury, about money that Rodriguez received from Alex Luna in exchange for drugs,
22 about how Rodriguez would retrieve cocaine from the vehicle he drove for Adames, and about how
23 Rodriguez helped Adames cook cocaine into crack.
9
1 José Pena provided similar testimony, describing Rodriguez's role as a driver who would
2 often "bring down the merchandise," and who was frequently present when Adames discussed
3 cocaine sales or handed off drugs hidden in the car's secret compartment. Nicky Carrasquillo
4 recounted for the jury how Rodriguez accompanied Adames on repeated drug deliveries, and how
5 he too had witnessed Rodriguez and Adames removing drugs from secret compartments in two
6 vehicles. He also described seeing Rodriguez "compressing" cocaine at Adames's house – that is,
7 mixing relatively pure cocaine with other substances in order to increase the overall resale profits.
8 Finally, Maria Robles, another cooperating co-conspirator, testified to seeing Rodriguez and Adames
9 deliver cocaine, approximately one kilogram at a time, to her boyfriend Alex Luna on a weekly basis.
10 She also told the jury that Rodriguez and Adames once ran Luna's drug business in Danbury while
11 she and Luna vacationed in the Dominican Republic.
12 In addition to these witnesses, the prosecution called Special Agent Rodney George, who
13 described statements Rodriguez made shortly after his arrest. According to this testimony,
14 Rodriguez confessed to his involvement in Adames's drug trafficking operation while he was
15 transported from Boston, where he was arrested, to Connecticut. As he rode with Agent George,
16 Rodriguez allegedly told him how he had become aware of Adames's cocaine trafficking, had met
17 Adames's supplier, and had driven Adames to make frequent deliveries in Danbury.
18 Lastly, the government produced video surveillance of Rodriguez and Adames meeting Luna
19 in Danbury. This surveillance showed the three men arriving in a parking lot, warily surveying their
20 surroundings, and then proceeding into an apartment. While the footage, taken outside, does not
21 show any drugs changing hands, the meeting followed a phone call in which Luna asked Adames
22 to deliver 200 grams of cocaine.
10
1 Together, all this evidence is at odds with Rodriguez's claim that, although he frequently
2 drove Adames to Danbury for a period of years, he knew nothing of Adames's drug trafficking
3 activities. Needless to say, given the scale and frequency of Adames's cocaine deliveries to Luna,
4 such a defense strains belief. Based on the strength of the government's evidence to the contrary, and
5 the many witnesses who testified to Rodriguez's knowing involvement, we conclude that the
6 erroneous admission of Agent Cuba's rebuttal testimony was harmless.
7 B. Bill of particulars
8 We conclude that the district court did not err in determining that the government's
9 submission in response to the district court's order for a bill of particulars was sufficient. The district
10 court granted Rodriguez's motion for a bill of particulars, and in response, the government submitted
11 a 62-page summary of the evidence that it intended to introduce at trial. Although the government's
12 submission did not take the traditional format of a bill of particulars, the district court found that the
13 government's submission contained sufficient specificity to inform Rodriguez of the charges against
14 him and to prevent undue surprise at trial. In light of the fact that Rodriguez has not, on appeal,
15 identified "any particular charge on which further detail would have been helpful," In re Terrorist
16 Bombings of U.S. Embassies in E. Afr., 552 F.3d 93, 151 (2d Cir. 2008), we find no error in the
17 district court's ruling, and we will not overturn Rodriguez's conviction on the ground that the
18 government's submission was not formatted as a traditional bill of particulars.
19 Whether to grant a bill of particulars is generally a decision entrusted to the sound discretion
20 of the district court. See United States v. Barnes, 158 F.3d 662, 665-66 (2d Cir. 1998). That being
21 the case, a district court's determination that a bill of particulars is sufficient would appear to be
22 entitled to an even greater measure of deference. See id. at 665 ("A district court judge . . . has the
11
1 discretion to deny a bill of particulars if the information sought by defendant is provided in the
2 indictment or in some acceptable alternate form." (quotation marks omitted)).
3 In this case, the bill of particulars, though lengthy, significantly condensed the voluminous
4 discovery produced by the prosecution into a form that apprised Rodriguez of what the government
5 would seek to prove at trial. See United States v. Davidoff, 845 F.2d 1151, 1154 (2d Cir. 1988) (A
6 bill of particulars enables a "defendant to prepare for trial, to prevent surprise, and to interpose a plea
7 of double jeopardy should he be prosecuted a second time for the same offense." (quotation marks
8 omitted)). The district court made clear that it ordered a bill of particulars because so much
9 discovery was produced to the defendants, not too little. That being the case, the bill, though not
10 formatted in the traditional fashion, adequately and appropriately explicated the charges Rodriguez
11 faced so that he could defend against them. He cannot show that he was entitled to anything more.
12 We have considered Rodriguez's remaining arguments on appeal and find them meritless.
13 We therefore affirm Rodriguez's conviction.
14 III. RAMIREZ
15 Ramirez appeals arguing that the district court erred by basing his sentence on a finding that
16 he was responsible for at least 15 kilograms of cocaine. When a district court makes a finding of fact
17 with respect to the amount of drugs attributable to a defendant, we review that finding for clear error.
18 United States v. Hazut, 140 F.3d 187, 190 (2d Cir. 1998); see also Untied States v. Cavera, 550 F.3d
19 180, 190 (2d Cir. 2008) (en banc) ("A district court commits procedural error [at sentencing] where
20 it . . . rests its sentence on a clearly erroneous finding of fact."). "The clearly erroneous standard
21 requires us to uphold the ruling of the court below unless we are 'left with the definite and firm
22 conviction that a mistake has been committed.'" United States v. Reilly, 76 F.3d 1271, 1276 (2d Cir.
23 1996) (quoting United States v. Gypsum Co., 333 U.S. 364, 395 (1948)).
12
1 Having reviewed the record, we conclude that there was ample evidence at trial, at
2 sentencing, and in the PSR to support the district court's finding that Ramirez conspired to distribute
3 (or conspired to possess with intent to distribute) an amount of cocaine that was "very easily over
4 the 15-kilogram minimum." We conclude, therefore, that the district court did not commit clear
5 error. We have considered Ramirez's additional arguments on appeal and find them meritless. We
6 affirm Ramirez's sentence.
7 IV. CONCLUSION
8 For the foregoing reasons, the defendants' convictions and sentences are AFFIRMED.
13