UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
Nos. 92-1362
92-1574
UNITED STATES OF AMERICA,
Appellee,
v.
DAVID SEPULVEDA,
Defendant, Appellant.
No. 92-1364
UNITED STATES OF AMERICA,
Appellee,
v.
EDGAR SEPULVEDA,
Defendant, Appellant.
No. 92-1366
UNITED STATES OF AMERICA,
Appellee,
v.
EDWARD W. WELCH, JR.,
Defendant, Appellant.
No. 92-1367
UNITED STATES OF AMERICA,
Appellee,
v.
ARLINE S. WELCH,
Defendant, Appellant.
No. 92-1369
UNITED STATES OF AMERICA,
Appellee,
v.
KEVIN CULLINANE,
Defendant, Appellant.
No. 92-1371
UNITED STATES OF AMERICA,
Appellee,
v.
CHERYL T. JOHNSON,
Defendant, Appellant.
No. 92-1373
UNITED STATES OF AMERICA,
Appellee,
v.
RICHARD F. LABRIE,
Defendant, Appellant.
No. 92-1374
UNITED STATES OF AMERICA,
Appellee,
v.
TONY ROOD,
Defendant, Appellant.
No. 92-1375
UNITED STATES OF AMERICA,
Appellee,
v.
WILLIAM D. WALLACE,
Defendant, Appellant.
Nos. 92-1573
92-1629
UNITED STATES OF AMERICA,
Appellee,
v.
ERNEST F. LANGLOIS,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Shane Devine, U. S. District Judge]
Before
Selya, Cyr and Boudin, Circuit Judges.
David H. Bownes, with whom David H. Bownes, P.C. was on
brief, for defendant David Sepulveda.
Julia M. Nye, with whom McKean, Mattson and Latici, P.A. was
on brief, for defendant Edgar Sepulveda.
Stephen A. Cherry, with whom Wright & Cherry was on brief,
for defendant Edward W. Welch, Jr.
Kevin M. Fitzgerald, with whom Peabody & Brown was on brief,
for defendant Arline S. Welch.
Michael J. Ryan, with whom King and Ryan was on brief, for
defendant Kevin Cullinane.
Robert P. Woodward for defendant Cheryl T. Johnson.
Mark H. Campbell for defendant Richard Labrie.
Paul J. Garrity on brief for defendant Tony Rood.
Matthew J. Lahey, with whom Murphy, McLaughlin, Hemeon &
Lahey, P.A. was on brief, for defendant William D. Wallace.
Julie L. Lesher, with whom Murphy, McLaughlin, Hemeon &
Lahey, P.A. was on brief, for defendant Ernest F. Langlois.
John P. Rab for defendant Christopher Driesse (appellant in
consolidated appeal).
Paul J. Haley, with whom Scott L. Hood was on brief, for
defendant Shane Welch (appellant in consolidated appeal).
Kevin M. Fitzgerald, Kevin M. Leach, McLane, Graf, Raulerson
& Middleton, Peabody & Brown and David H. Bownes on omnibus
briefs for all appellants.
Terry L. Ollila, Special Assistant United States Attorney,
with whom Peter E. Papps, United States Attorney, and Jeffrey S.
Cahill, Special Assistant United States Attorney, were on brief,
for appellee.
December 20, 1993
SELYA, Circuit Judge. These appeals, arising out of
SELYA, Circuit Judge.
the drug-trafficking convictions of a dozen New Hampshire
residents, suggest that while two New Hampshiremen might once
have been a match for Satan, see Stephen Vincent Benet, The Devil
and Daniel Webster (1937), times have changed. The tale follows.
I. BACKGROUND
During a two-month trial in the district court, the
government mined a golconda of evidence. Because it would serve
no useful purpose to recount the occasionally ponderous record in
book and verse, we offer instead an overview of the evidence,
taken in the light most compatible with the guilty verdicts. See
United States v. Ortiz, 966 F.2d 707, 711 (1st Cir. 1992), cert.
denied, 113 S. Ct. 1005 (1993). Further facts will be added as
we discuss specific issues.
For almost six years, David Sepulveda conducted an
increasingly sophisticated cocaine distribution business in and
around Manchester, New Hampshire. Initially, Sepulveda purchased
cocaine from a vendor in Nashua, New Hampshire, and transported
it to Manchester himself. Over time, Sepulveda expanded his
operation, increasing the volume of cocaine and engaging others
to handle tasks such as pickup, delivery, and street-level sales.
As his enterprise grew more ambitious, Sepulveda began
purchasing cocaine from a source in Lawrence, Massachusetts.
Faced with the need to retain control while insulating himself
from the prying eyes of law enforcement personnel, Sepulveda's
journeys to Lawrence became an elaborate ritual in which he would
4
scrupulously avoid carrying drugs or travelling in the same car
with the cocaine that he purchased. On these provisioning trips,
Sepulveda was usually accompanied by his brother, Edgar, and a
"runner," that is, an individual who would actually transport the
cocaine from Lawrence to Manchester.1 Frequently, one of
Sepulveda's distributors or a user in a particular hurry to
obtain fresh supplies would join the troupe.
Once the cocaine arrived in Manchester, Sepulveda and
his associates packaged it in street-level quantities and
distributed it to a series of individuals for resale and personal
use. The buyers included, among others, defendants Edward W.
Welch, Jr., Arline S. Welch, Shane Welch, Kevin Cullinane,
Christopher Driesse, Cheryl T. Johnson, Richard E. Labrie, Tony
Rood, and William D. Wallace. David Sepulveda made a practice of
directing persons who inquired about purchasing small amounts of
cocaine to these same individuals.
Eventually, David Sepulveda's reach exceeded his grasp.
A federal grand jury indicted him, along with others, for drug
trafficking; and, after trial, a petit jury convicted twelve
persons, viz., the Sepulveda brothers, the three Welches,
Cullinane, Driesse, Johnson, Labrie, Rood, Wallace, and Langlois,
on a charge of conspiracy to possess and distribute cocaine. See
21 U.S.C. 846 (1988). The jury also convicted David Sepulveda
on a charge of engaging in a continuing criminal enterprise. See
1At various times, defendants Tony Rood and Ernest F.
Langlois worked as runners. At other times, Norberto Perez
played this role.
5
21 U.S.C. 848 (1988). Twenty-six appeals ensued.
It is no exaggeration to say that the defendants,
represented by able counsel, managed to cultivate a profusion of
variegated grounds for appeal from the peat of the protracted
trial. Because of the sheer bulk and complexity of the
proceedings, we issued a special briefing order and then heard
oral argument on all twenty-six appeals. We decide today twelve
appeals taken by ten defendants (collectively, "the
appellants").2 After sifting what grains we can locate from the
considerable chaff, we conclude that the appellants enjoyed a
fair, substantially error-free trial, and that their convictions
must stand. In two instances, however, we vacate particular
sentences and remand for further proceedings.
II. SUFFICIENCY OF THE EVIDENCE
Four appellants claim that the evidence is
insufficient, as a matter of law, to support their convictions.3
Because insufficiency claims are commonplace in criminal appeals,
the standard of appellate oversight lends itself to rote
2The appeals taken by defendants Christopher Driesse and
Shane Welch following the trial present certain unique issues and
those two appeals will be resolved in a separate opinion. In
addition, after the original round of appeals had been docketed,
all twelve defendants moved to vacate judgment on the basis of
newly discovered evidence. The court below denied relief and a
fresh battery of appeals ensued. Those twelve late-blooming
appeals were argued in tandem with the fourteen earlier appeals
and will be disposed of in a third opinion.
3We do not include under this rubric appellants Edgar
Sepulveda and Tony Rood, both of whom argue that the government
failed to present sufficient evidence to show their participation
in the single "master conspiracy" charged in the indictment.
Instead, we treat with those claims in Part IX, infra.
6
recitation. Following a guilty verdict, a reviewing court must
scrutinize the record, eschewing credibility judgments and
drawing all reasonable inferences in favor of the verdict, to
ascertain if a rational jury could have found that the government
proved each element of the crime beyond a reasonable doubt. See
United States v. Echeverri, 982 F.2d 675, 677 (1st Cir. 1993);
Ortiz, 966 F.2d at 711; United States v. David, 940 F.2d 722, 730
(1st Cir. 1991) (collecting cases), cert. denied, 112 S. Ct. 2301
(1992). To sustain a conviction, the court need not conclude
that only a guilty verdict appropriately could be reached; it is
enough that the finding of guilt draws its essence from a
plausible reading of the record. See Echeverri, 982 F.2d at 677;
Ortiz, 966 F.2d at 711.
Here, the challenged convictions center around a charge
of conspiracy to possess and distribute cocaine. To prove a drug
conspiracy charge under 21 U.S.C. 846, the government is
obliged to show beyond a reasonable doubt that a conspiracy
existed and that a particular defendant agreed to participate in
it, intending to commit the underlying substantive offense (here,
possession of cocaine with intent to distribute, 21 U.S.C.
841(a)(1)). See David, 940 F.2d at 735; United States v.
Sanchez, 917 F.2d 607, 610 (1st Cir. 1990), cert. denied, 111 S.
Ct. 1625 (1991); United States v. Rivera-Santiago, 872 F.2d 1073,
1079 (1st Cir.), cert. denied, 492 U.S. 910 (1989). There are no
particular formalities that attend this showing: the agreement
may be express or tacit and may be proved by direct or
7
circumstantial evidence. See Echeverri, 982 F.2d at 679; Rivera-
Santiago, 872 F.2d at 1079. Moreover, in a criminal conspiracy,
culpability may be constant though responsibilities are divided;
the government does not need to show as a precursor to a finding
of guilt that a given defendant took part in all aspects of the
conspiracy. See United States v. Benevides, 985 F.2d 629, 633
(1st Cir. 1993); United States v. Cruz, 981 F.2d 613, 617 (1st
Cir. 1992). Using these guideposts, we find that the quantum of
evidence presented against each of the four challengers suffices.
A. Arline Welch.
Four witnesses provided the bulk of the evidence
regarding Arline Welch's role in the conspiracy. Kurt Coriaty
testified that he had purchased cocaine from her both in her home
and in his, particularly after her husband, Edward Welch, was
imprisoned. Coriaty's partner, Kenneth Milne, stated that Arline
Welch gave him cocaine at her home and was present when he
purchased cocaine from Edward Welch at the Welch residence.
While mere presence is not sufficient to ground criminal charges,
a defendant's presence at the point of a drug sale, taken in the
light of attendant circumstances, can constitute strong evidence
of complicity. See Ortiz, 966 F.2d at 711-12.
The jury also heard Norberto Perez explain that Arline
Welch accompanied David Sepulveda on three buying expeditions to
Lawrence, Massachusetts. Perez testified that, in expressing
anxiety, she made manifest her awareness of the trips' purpose,
voicing statements like: "Let's hurry up and get this cocaine so
8
we can get out of here." Furthermore, Randall Vetrone testified
that Arline Welch was present in Edgar Sepulveda's apartment
while the Sepulveda brothers packaged and sold cocaine.
Appellant's consensual presence in a private home, not her own,
while large quantities of drugs were being packaged for resale,
possessed evidentiary significance. From this fact, coupled with
other contextual detail (much of it inculpatory), the jury
reasonably could have inferred that she was a member of the ring.
See Ortiz, 966 F.2d at 712 (pointing out that criminals rarely
seek to expose their felonious activities to innocent outsiders,
where such exposure could easily be avoided); United States v.
Batista-Polanco, 927 F.2d 14, 18-19 (1st Cir. 1991) (to like
effect).
Keeping in mind the maxim that "criminal juries are not
expected to ignore what is perfectly obvious," Echeverri, 982
F.2d at 679, the testimony of these four witnesses and the
reasonable inferences to be drawn therefrom formed a serviceable
predicate upon which to rest a conviction for conspiracy to
distribute cocaine.4 Accordingly, the district court did not err
in denying Arline Welch's motion for judgment of acquittal.
B. Kevin Cullinane.
Daniel Santos, a quondam partner of Cullinane's in the
4We give short shrift to Welch's argument, echoed at various
times by other appellants, that, because some of the government's
witnesses anticipated receiving reduced sentences in exchange for
cooperation, their testimony should be regarded as inherently
unreliable. When an appellate court reviews the sufficiency of
the evidence, it must resolve routine credibility questions in
favor of the verdict. See David, 940 F.2d at 730.
9
drug distribution trade, testified that Cullinane introduced him
to David Sepulveda and that Sepulveda eventually became a
principal supplier of cocaine to the Cullinane-Santos
partnership. Santos also testified that Cullinane accompanied
Sepulveda on provisioning trips, returning to Santos's apartment
with fresh supplies of contraband. The ubiquitous Norberto Perez
corroborated this relationship, testifying that he had travelled
to Lawrence on at least five occasions in the company of
Cullinane and the Sepulveda siblings in order to replenish
cocaine stores. Perez also recreated a conversation that took
place between Cullinane and Sepulveda involving the former's
indebtedness to the latter for transactions in cocaine.
The government adduced abundant evidence that Cullinane
distributed much of the contraband he acquired. Perez and Santos
both described Cullinane's activities as a vendor. John Rice
testified that Cullinane delivered cocaine to defendant
Christopher Driesse, and that Driesse, in turn, would resell the
drugs. Santos confirmed that Cullinane procured these drugs from
David Sepulveda and that Sepulveda extended credit to Cullinane.
Another witness, David Chase, acknowledged that he had purchased
up to eight kilograms of cocaine from Cullinane before concluding
that, aphorisms about honor among thieves notwithstanding,
Cullinane could not be trusted.5
In view of this plenitudinous testimony, the court
5When Chase and Cullinane fell out, Chase took his business
directly to David Sepulveda.
10
below appropriately derailed Cullinane's quest for acquittal as a
matter of law.
C. Ernest Langlois.
David Sepulveda hired Langlois to be both a drug
courier and a torpedo. Langlois's resounding success in the
latter role intimidating Sepulveda's debtors and, sometimes,
his associates produced a suffusion of testimony limning
Langlois's role in the organization. For instance, David Hill
described four occasions on which Langlois used force, or threats
of force, to collect debts owed to Sepulveda. Two other
witnesses testified that Sepulveda boasted of employing Langlois
as a strongarm to collect drug debts. Another witness overheard
Langlois crowing about the nature of his employment. And no
fewer than six witnesses relayed information from which a
rational jury could infer that Langlois "rode shotgun" during
drug-buying expeditions.
As this partial summary indicates, the evidence
accumulated against Langlois rose well above the level necessary
to sustain the jury's verdict.
D. Cheryl Johnson.
Two witnesses, Santos and Kathy Malone (an undercover
police officer), testified that David Sepulveda sent them to
Cheryl Johnson when they wanted to buy cocaine. Santos said that
he purchased cocaine from Johnson on approximately one hundred
occasions, during which transactions Johnson offhandedly revealed
11
the full extent of her copious cocaine inventory. Malone stated
that she purchased cocaine from Johnson on three occasions.6
Perez testified that he, too, bought cocaine from Johnson,
delivered cocaine to Johnson at Sepulveda's behest, and
accompanied her on at least one buying trip to Lawrence.
Although Johnson argues vehemently that the witnesses
against her were inherently unreliable, courts must leave such
credibility determinations in the jury's domain. See David, 940
F.2d at 730. Here, the jury was at liberty to credit the
testimony, and it, in turn, supplied all the elements necessary
to convict.
III. SEQUESTRATION
Appellants claim that, shortly after sentencing, they
learned for the first time that the government housed three key
witnesses (Perez, Milne, and Coriaty) in the same cell throughout
the trial. Appellants moved for a new trial,7 alleging that the
housing arrangements violated a sequestration order issued by the
district court. The government not only contested appellants'
conclusion but also contested the premise on which the conclusion
6Both Santos and Malone also testified that they bought
cocaine from defendant Richard Labrie at Johnson's abode.
7These motions are separate from, and much earlier in time
than, the motions to which we alluded in note 2, supra.
Nonetheless, these motions, like the later motions, invoked Fed.
R. Crim. P. 33. We grant appellants a considerable indulgence,
assuming arguendo that the information concerning the witnesses'
living arrangements was not discoverable before or during trial
with the exercise of due diligence. See United States v. Slade,
980 F.2d 27, 29 (1st Cir. 1992) (articulating standard); United
States v. Natanel, 938 F.2d 302, 313 (1st Cir. 1991) (similar),
cert. denied, 112 S. Ct. 986 (1992).
12
rested, asserting that, though the three men were lodged within
the same cell block, they did not share a cell.
For reasons that are somewhat opaque, the district
court denied the motion without a hearing and without findings
anent the accuracy of appellants' "three to a cell" allegation.
Instead, the court determined that, regardless of the dormitory
arrangements, its sequestration order had not been flouted. It
is against this rather spartan background that we undertake our
analysis.8
A. Rule 615.
The sanctum sanctorum of supervised sequestration
states in its salient segment:
At the request of a party the court
shall order witnesses excluded so that they
cannot hear the testimony of other witnesses,
and it may make the order of its own motion.
Fed. R. Evid. 615. The rule more or less codifies common-law
sequestration powers, but it is at once less discretionary and
less stringent than its forebears. On one hand, the rule cabins
the judge's discretion by affording all parties a right to close
8To recognize that the record sheds no light on the factual
underpinnings of the sequestration dispute is not to imply that
the defense lacked opportunity to explore the possibility of
sequestration violations. During trial, appellants cross-
examined all three witnesses at length, inquiring, inter alia,
whether they had discussed the case with others. The examination
elicited no evidence that the trio traded tales concerning past,
present, or future testimony. Cf. United States v. Eyster, 948
F.2d 1196, 1210 (11th Cir. 1991) (finding that witnesses housed
in the same cell who admitted discussing testimony with each
other violated a sequestration order). Moreover, appellants knew
all along that Perez, Milne, and Coriaty dwelled at the same
penitentiary, yet they made no specific inquiries about the
congregant housing arrangement.
13
the courtroom to prospective witnesses.9 On the other hand,
while the common law supported sequestration beyond the
courtroom, see 6 John Wigmore, Evidence 1840, at 471 n.7 (1976)
(stating that, at common law, the sequestration process involves
three parts: preventing prospective witnesses from consulting
each other; preventing witnesses from hearing other witnesses
testify; and preventing prospective witnesses from consulting
witnesses who have already testified), Rule 615 contemplates a
smaller reserve; by its terms, courts must "order witnesses
excluded" only from the courtroom proper, see Perry v. Leeke, 488
U.S. 272, 281 & n.4 (1989); United States v. Arruda, 715 F.2d
671, 684 (1st Cir. 1983). In sum, the rule demarcates a compact
procedural heartland, but leaves appreciable room for judicial
innovation beyond the perimeters of that which the rule
explicitly requires. See United States v. De Jongh, 937 F.2d 1,
3 (1st Cir. 1991) (stating that district courts possess
"considerable discretion" to fashion orders pertaining to
sequestration).10
9The rule's stringencies in that respect have not been
adopted by all states. See 6 John Wigmore, Evidence 1837, at
458 n.11 (1976); see also id. at 35 (Supp. 1991) (compiling
data). Rather, many states continue to leave sequestration
decisions solely within the judge's discretion. See, e.g., R.I.
R. Evid. 615.
10Citing United States v. Greschner, 802 F.2d 373 (10th Cir.
1986), cert. denied, 480 U.S. 908 (1987), appellants postulate
that Rule 615 requires sequestration beyond the courtroom door.
Although Greschner does equate "circumvention" of Rule 615 with a
violation of the rule itself, it concedes that controlling such
circumvention rests within the district court's discretion a
condition that clearly does not apply to violations of Rule 615
itself. Id. at 375-76. Thus, Greschner fails to support
14
Outside of the heartland, the district court may make
whatever provisions it deems necessary to manage trials in the
interests of justice, see id., including the sequestration of
witnesses before, during, and after their testimony, see Geders
v. United States, 425 U.S. 80, 87 (1976), and compelling the
parties to present witnesses in a prescribed sequence, see United
States v. Machor, 879 F.2d 945, 954 (1st Cir. 1989), cert.
denied, 493 U.S. 1094 (1990). Rule 615 neither dictates when and
how this case-management power ought to be used nor mandates any
specific extra-courtroom prophylaxis, instead leaving the
regulation of witness conduct outside the courtroom to the
district judge's discretion. See United States v. Arias-Santana,
964 F.2d 1262, 1266 (1st Cir. 1992) (explaining that a federal
trial court may enter non-discussion orders at its discretion);
see also Arruda, 715 F.2d at 684 (holding that there was
"technically" no violation of sequestration where witnesses
conversed outside the courtroom).
This is not to say, however, that sequestration orders
which affect witnesses outside the courtroom are a rarity. As a
practical matter, district courts routinely exercise their
discretion to augment Rule 615 by instructing witnesses, without
making fine spatial distinctions, that they are not to discuss
their testimony. Indeed, such non-discussion orders are
generally thought to be a standard concomitant of basic
sequestration fare, serving to fortify the protections offered by
appellants' thesis.
15
Rule 615. See Perry, 488 U.S. at 281-82.
B. Sequestration and Cohabitation.
Here, appellants moved in advance of trial for
sequestration without indicating to the court what level of
restraint they thought appropriate. The court granted the motion
in its simplest aspect, directing counsel "to monitor
sequestration" and ordering "that witnesses who are subject to
[the court's] order are not to be present in the courtroom at any
time prior to their appearance to render testimony." At trial,
the district court expanded its earlier order beyond the Rule 615
minimum, instructing each witness at the close of his or her
testimony not to discuss that testimony with any other witness.
Appellants accepted the conditions of sequestration described by
the court without demurrer. What is more, they did not request
any further instructions, say, that witnesses be directed at the
end of each day, or before each recess, not to discuss their
testimony. Thus, every witness was placed under an order
prohibiting discussion of the case with other witnesses only upon
the completion of his or her testimony.
On these facts, the district court's denial of relief
must be upheld. The court's basic sequestration order, which
ploughed a straight furrow in line with Rule 615 itself, did not
extend beyond the courtroom. There has been no intimation that
the witnesses transgressed this order. Moreover, because the
district court did not promulgate a non-discussion order
applicable to any witness until the conclusion of that witness's
16
testimony, Perez, Milne, and Coriaty were under no obligation,
prior to that moment, to refrain from discussing their
recollections with each other. Finally, there is no evidence
that any of the three ever chatted about the case with another
witness after having been admonished to the contrary or at any
earlier time, for that matter.
Given this predicate, appellants' plaint reduces to the
unprecedented proposition that witness cohabitation constitutes
an automatic violation of a standard sequestration order. The
crux of sequestration, however, is communication between
witnesses, not shared accommodations or geographic proximity.
Social settings, such as communal housing or common work sites,
may offer opportunities for witnesses to compare notes and gossip
about their testimony, but such environments do not ensure that
forbidden conversations will occur. We assume that witnesses,
like all other persons subject to court orders, will follow the
instructions they receive. Cf., e.g., Richardson v. Marsh, 481
U.S. 200, 206 (1987) (reiterating the "invariable assumption of
the law that jurors follow their instructions"). We conclude,
therefore, that the housing arrangement, in and of itself, did
not violate an existing sequestration order.
If doubt inhered and we see no room for any two
other considerations would then be decisive. In the first place,
a district court's interpretation of its own order is customarily
accorded great weight. See, e.g., Witty v. Dukakis, 3 F.3d 517,
521 (1st Cir. 1993); Martha's Vineyard Scuba Hqtrs., Inc. v.
17
Unidentified, Wrecked & Abandoned Steam Vessel, 833 F.2d 1059,
1066-67 (1st Cir. 1987); Lefkowitz v. Fair, 816 F.2d 17, 22-23
(1st Cir. 1987). Here, the district court ruled that congregant
housing of witnesses did not infringe on the sequestration that
it decreed. When a trial court's interpretation of its own order
tracks plain language and the actual sequence of events, that
interpretation must be honored on appeal.
In the second place, even if some implied ban on
congregant housing of prisoner-witnesses existed, breach of a
sequestration order would not automatically call for a new trial;
rather, the need for a sanction, and the nature of one, if
imposable, are matters committed to the trial court's sound
discretion. See United States v. Rossetti, 768 F.2d 12, 16 (1st
Cir. 1985); Arruda, 715 F.2d at 684. Appellants' failure to
request a broader sequestration order, coupled with the
speculative nature of their claim of actual prejudice, renders it
impossible to find an abuse of discretion here. See, e.g.,
Rossetti, 768 F.2d at 16.
To sum up, our search of the record in this case
discloses no reason to suspect that the government or its
witnesses transgressed the existing sequestration order. And as
we have indicated, if appellants desired a more vigorous
sequestration regime, such as an edict that would have banned
cohabitation or other contact amongst prisoner-witnesses, they
had a duty to ask for it. They failed to do so. Under these
circumstances, the district court appropriately declined to
18
overturn the convictions. See, e.g., De Jongh, 937 F.2d at 3;
Rossetti, 768 F.2d at 16; see also Langel v. United States, 451
F.2d 957, 963 (8th Cir. 1971) (determining that district court's
refusal to restrict witnesses from communicating with other
witnesses, after some had testified, did not constitute error;
defendants made "no showing . . . that Government witnesses did
talk to each other after testifying").
IV. DISPUTES ANENT DISCOVERY
Appellants complain vociferously about the government's
conduct during discovery. The complaints have a modest basis in
fact. Over the course of this logistically complex trial, the
government produced a number of documents in a seemingly
lackadaisical fashion. On each of these occasions, defense
counsel had to scramble in order to assess the nascent discovery
and integrate it into their trial strategy. On other occasions,
the government refused to produce documents that defense counsel
believed were discoverable either as exculpatory material, see
Brady v. Maryland, 373 U.S. 83, 87 (1963), or as fodder for
impeachment, see Giglio v. United States, 405 U.S. 150, 154-55
(1972); see also 18 U.S.C. 3500 (1988) (requiring the
government to disclose, after direct testimony and on the
defendant's motion, any statement by the witness, in the
government's possession, that relates to the subject matter of
the witness's testimony). We discuss these two species of
discovery problems separately.
A. Delayed Discovery.
19
Prosecutors have an obligation to furnish exculpatory
and impeachment information to the defense in a timely fashion.
Although the government's obligation goes beyond the good-faith
requirement of civil discovery, see United States v. Samalot
Perez, 767 F.2d 1, 4 (1st Cir. 1985), its bounds are not
limitless. Patrolling these boundaries is primarily the duty of
the nisi prius court. Because the district judge is better
attuned to the nuances of the trial, this court must take a
deferential view of rulings made in the course of that patrol.
When discovery material makes a belated appearance, a
criminal defendant must ordinarily seek a continuance if he
intends to claim prejudice. A continuance affords time to study
the newly emergent information, consider its possible
ramifications, change trial strategy (if necessary), assess any
potential prejudice, and determine how best to use the
information. As a general rule, a defendant who does not request
a continuance will not be heard to complain on appeal that he
suffered prejudice as a result of late-arriving discovery. See,
e.g., United States v. Osorio, 929 F.2d 753, 758 (1st Cir. 1991);
see also United States v. Diaz-Villafane, 874 F.2d 43, 47 (1st
Cir.) (concluding, in an analogous context, that a defendant's
cry of unfair surprise "is severely undermined, if not entirely
undone, by his neglect to ask the district court for a
continuance to meet the claimed exigency"), cert. denied, 493
U.S. 862 (1989). Thus, in situations where defense counsel does
not seek a continuance upon belated receipt of discoverable
20
information, a court often can assume that counsel did not need
more time to incorporate the information into the defense's game
plan. See United States v. Ingraldi, 793 F.2d 408, 413 (1st Cir.
1986).
This general rule spells defeat for the majority of
appellants' delayed discovery claims. In every instance save
one, appellants eschewed a request for a continuance. They have
never satisfactorily explained how delays in production caused
them any cognizable harm on those several occasions and the
record, which reflects that appellants assimilated the new
material without any perceptible hitch and used it to good
effect, belies any such claim. The lack of demonstrable
prejudice sounds the death knell for a "delayed discovery" claim.
See United States v. Devin, 918 F.2d 280, 290 (1st Cir. 1990)
(explaining that a defendant who complains about tardiness in
disclosure "cannot rely on wholly conclusory assertions but must
bear the burden of producing, at the very least, a prima facie
showing of a plausible strategic option which the delay
foreclosed"). Hence, we find appellants' delayed discovery
claims, with one exception, to have been waived.
The facts referable to the remaining dilatory
disclosure claim can be succinctly summarized. Perez not only
worked as a courier for David Sepulveda, but also supported his
own cocaine habit by peddling drugs. After he was apprehended
for selling cocaine, Perez agreed to testify against appellants
in return for the United States Attorney's help in seeking a
21
reduced sentence. Since Perez was the only witness who tied all
the defendants to David Sepulveda's illicit enterprise, his
testimony was extremely important to the government's case.
When defense lawyers began cross-examining Perez, it
became apparent that the FBI records furnished in pretrial
discovery did not list Perez's entire repertoire of criminal
convictions, especially those stemming from state court
proceedings and not reported to the FBI. When Perez acknowledged
that a state probation officer had prepared a presentence report
for a New Hampshire court, appellants asked for a continuance so
that they might obtain this document and more fully research
Perez's criminal history. The district court denied the motion
but offered to permit the defense to recall Perez for further
cross-questioning should the new information warrant it. The
trial continued coincident with the defense's efforts to secure
the presentence report.
After some travail, New Hampshire authorities agreed to
release the report to the federal court in camera. The district
judge found that it contained little fresh material but he
nonetheless issued a turnover order. The defense received the
report while Perez was still on the witness stand. The judge
refused to grant a mistrial or afford appellants any comparable
redress.
We see no error. The prosecution was caught unawares;
it never knew of the report's existence and, therefore, could not
have deliberately withheld it. Furthermore, the rigors of Brady
22
do not usually attach to material outside the federal
government's control and the presentence report at issue here
falls within the scope of this generality. See, e.g., United
States v. Aichele, 941 F.2d 761, 764 (9th Cir. 1991) (holding
that a federal prosecutor had no duty to procure materials
prepared for the state courts which were not otherwise under
federal control).
Last, but far from least, delayed disclosure claims
cannot succeed unless the aggrieved defendant demonstrates
prejudice arising from the delay. See Devin, 918 F.2d at 290
(refusing to reverse conviction where delayed disclosure of
impeachment material "had no effect on the outcome of the
trial"); Ingraldi, 793 F.2d at 411-12 (stating that the critical
test "is whether defendant's counsel was prevented by the delay
from using the disclosed material effectively in preparing and
presenting the defendant's case"). Here, however, the defense's
delayed receipt of the report did not hinder cross-examination to
any appreciable degree. From the start of trial, appellants had
a sizeable storehouse of data concerning Perez's checkered past.
In comparison to what was already known, the report, which
yielded a relatively inconsequential amount of incremental
information, comprised small potatoes. Moreover, the timing of
events minimized the possibility of prejudice. Appellants
received the report while Perez was still testifying. They were
able to incorporate its contents into their cross-examination and
employ the information effectively. For aught that appears, the
23
course and outcome of the trial would have been the same no
matter when the report surfaced.
In our view, the presider's decision to allow a
criminal case to go forward, notwithstanding delayed disclosure
of material relevant to impeachment of a witness, should be
upheld unless a manifest abuse of discretion looms. See Devin,
918 F.2d at 289. On this record, we can neither criticize the
district court's exercise of its informed discretion nor tamper
with the court's bipartite finding that the government violated
no duty and that, in any event, appellants sustained no
cognizable prejudice arising out of the presentence report's
belated emergence.
B. Denied Discovery.
Appellants also complain that the court below, after
scrutinizing certain materials in camera, denied their motion to
compel discovery. The materials in question consist of various
police files, including interview notes. We have reviewed these
materials and agree with the lower court that they are outside
the purview of the Jencks Act, 18 U.S.C. 3500, for two reasons.
First, to be discoverable under the Jencks Act, a government
record of a witness interview must be substantially a verbatim
account. See United States v. Newton, 891 F.2d 944, 953-54 (1st
Cir. 1989). Second, the account must have been signed or
otherwise verified by the witness himself. See United States v.
Gonzalez-Sanchez, 825 F.2d 572, 586-87 (1st Cir.), cert. denied,
484 U.S. 989 (1987). The police files at issue here, including
24
the interview notes, do not meet either of these guidelines and
are, therefore, non-discoverable. A fortiori, the district court
did not blunder in denying access to them.
V. COCONSPIRATORS' STATEMENTS
During the course of trial, the judge allowed several
witnesses to attribute out-of-court statements to one or more
declarants, finding, inter alia, that the declarants were
coconspirators. Appellants assign error.
Although out-of-court statements made by non-testifying
declarants ordinarily are excluded as hearsay if offered to prove
the truth of the matter asserted, see Fed. R. Evid. 801(c), there
are exceptions to the rule. One such exception provides that "a
statement by a coconspirator of a party during the course and in
furtherance of the conspiracy" is not hearsay. Fed. R. Evid
801(d)(2)(E). To invoke the exception, a party who wants to
introduce a particular statement must show by a preponderance of
the evidence that a conspiracy embracing both the declarant and
the defendant existed, and that the declarant uttered the
statement during and in furtherance of the conspiracy. See
Bourjaily v. United States, 483 U.S. 171, 175-76 (1987); Ortiz,
966 F.2d at 714-15. The party at whom the evidence is aimed must
object to the statement when it is offered; and, if the district
court accepts the evidence de bene, must then ask the court at
the close of all the relevant evidence to strike the statement,
i.e., to consider whether the proponent fulfilled the requisite
foundational requirements by a preponderance of the evidence.
25
See Ortiz, 966 F.2d at 715; United States v. Perkins, 926 F.2d
1271, 1283 (1st Cir. 1991); see generally United States v.
Ciampaglia, 628 F.2d 632, 638 (1st Cir.), cert. denied, 449 U.S.
956 (1980); United States v. Petrozziello, 548 F.2d 20, 23 n.3
(1st Cir. 1977).
On five occasions, at least one defendant objected to
testimony anent coconspirators' out-of-court statements.11 We
treat these objections as fully preserved after all, the
district court told counsel that it deemed an objection by one
defendant sufficient to preserve the rights of all defendants
and, accordingly, we plumb the record in an effort to determine
whether any or all of the district court's rulings with respect
to these statements were clearly erroneous. See United States v.
McCarthy, 961 F.2d 972, 977 (1st Cir. 1992); United States v.
Cresta, 825 F.2d 538, 551 (1st Cir. 1987), cert. denied, 486 U.S.
1042 (1988).
We begin by considering three pieces of testimony
recounting out-of-court statements. The common thread that joins
these proffers is that the government adduced some other evidence
tending to prove that the declarants were, in fact,
coconspirators. We then address two pieces of testimony that are
not cushioned in a comparable fashion.
A. Supported Statements.
11On a sixth occasion, defendant Driesse objected to another
statement. Inasmuch as that statement implicated Driesse alone,
we regard the ensuing assignment of error as beyond the scope of
this opinion. See supra note 2.
26
1. Milne Testimony. Milne (a self-confessed
1. Milne Testimony.
coconspirator) served as the wellspring of the first statement.
He testified that a defendant, Edward Welch, told him that the
police noticed cocaine on his (Welch's) bed in the course of
executing a search warrant. The district court found that the
declarant, Welch, was a coconspirator, and that Welch's statement
was made during and in furtherance of the conspiracy. The
finding is fully sustainable.
Both Coriaty and Milne testified that Welch sold them
cocaine he had purchased from David Sepulveda (an arrangement
that numerous other witnesses corroborated). This evidence
encourages, if it does not demand, the conclusion that Welch
worked hand in glove with Sepulveda. A pattern of drug sales
between two individuals, looking toward resale to third persons,
together with appropriate contextual detail, can support a
finding that the two individuals were jointly involved in a drug-
trafficking conspiracy. See United States v. Moran, 984 F.2d
1299, 1303 (1st Cir. 1993); United States v. Glenn, 828 F.2d 855,
857-58 (1st Cir. 1987). The record likewise justifies the
conclusion that Welch's statements to Milne were made during and
in furtherance of the conspiracy. We think it is common ground
and common sense that the reporting of significant events by
one coconspirator to another advances the conspiracy. See United
States v. Smith, 833 F.2d 213, 219 (10th Cir. 1987).
2. Rice Testimony. Another government witness, John
2. Rice Testimony.
Rice, testified that one defendant, Driesse, mentioned that a
27
second defendant, Rood, sold cocaine for the Sepulveda brothers.
The jury found both Driesse and Rood guilty of the conspiracy
charge, and the record gives considerable definition to both
men's links to the drug ring. And, moreover, since the sharing
of pertinent information about a conspiracy's mode of operation
furthers the conspiratorial ends, see United States v. Munson,
819 F.2d 337, 341 (1st Cir. 1987), Driesse's statement concerning
drug sales assisted the charged conspiracy by informing other
coconspirators of Rood's role and activities.
3. Malone Testimony. A third statement came in
3. Malone Testimony.
through a police officer, Kathy Malone, who made a number of
undercover buys from Sepulveda-supplied vendors. She testified
that David Sepulveda's inamorata, Bambi Burley, told her that she
(Bambi) had jilted Sepulveda and asked whether Malone might be
"one of those girls that went to New York with him." Appellants
challenge the admission of this statement on the sole ground that
Burley, herself, was a stranger to the charged conspiracy.
However, this challenge overlooks Perez's testimony that he
collected drug debts for David Sepulveda and delivered the money
to Burley. While there is hardly a profusion of evidence
depicting Burley as a coconspirator, there is enough to withstand
clear error review.12
12It seems problematic whether these statements furthered
the conspiracy. We need not mull this question, however, as
appellants did not advance this ground either in the lower court
or in their briefs. The issue is, therefore, waived. See United
States v. Slade, 980 F.2d 27, 31 (1st Cir. 1992). In all events,
the statements seem harmless.
28
B. Unsupported Statements.
The two additional instances in which the court below
admitted statements under the coconspirator exception despite
contemporaneous objection are qualitatively different. In each
instance, there appears to be no record evidence, other than the
statement itself, to support its admissibility.
One statement arose during the government's examination
of a police detective, Mark Putney. The detective testified
that, while executing a search warrant at a dwelling occupied by
defendant Cheryl Johnson and her husband, Brian, he answered the
telephone:
The male caller asked if Brian was home. I
stated I was Brian. The caller stated did
you pick up the stuff. I said I did. The
caller asked if he could come over and pick
up a half. I stated sure, come on over.
The other statement occurred during direct examination
of Joseph Baranski. Baranski testified that he sometimes
provided transportation for people going to David Sepulveda's
house and that, on occasion, his passengers would tell him that
they were visiting Sepulveda because "they wanted to buy some
drugs."
Our review of the record has deterrated no extrinsic
evidence tending to show that these out-of-court declarants (the
unidentified caller to the Johnson residence and the unidentified
passengers in Baranski's vehicle) were involved in the
conspiracy, and the government has directed us to no such proof.
Following the Supreme Court's landmark opinion in Bourjaily, and
29
Justice Stevens's concurrence, 483 U.S. at 185 & n.2, several of
our sister circuits have concluded that the preponderance of
evidence required for the introduction of an out-of-court
statement under Rule 801(d)(2)(E) must necessarily comprise more
than the weight of the statement itself. See, e.g., United
States v. Gambino, 926 F.2d 1355, 1361 n.5 (3d Cir.), cert.
denied, 112 S. Ct. 415 (1991); United States v. Garbett, 867 F.2d
1132, 1134 (8th Cir. 1989); United States v. Silverman, 861 F.2d
571, 577 (9th Cir. 1988); United States v. Zambrana, 841 F.2d
1320, 1344-45 (7th Cir. 1988); see also United States v. Daly,
842 F.2d 1380, 1386 (2d Cir.), cert. denied, 488 U.S. 821 (1988).
We have not yet spoken to the point. See, e.g., United States v.
Dworken, 855 F.2d 12, 25 (1st Cir. 1988) (deferring resolution).
This case presents the issue squarely and requires that
we decide it. We hold that a coconspirator's statement, standing
alone, is insufficient to meet the preponderance standard of Rule
801(d)(2)(E). In other words, to satisfy the weight-of-the-
evidence criteria for that hearsay exception, there must be some
proof aliunde. Though the district court may consider a
statement's contents and the circumstances attending its
utterance when gauging the statement's reliability, see United
States v. Gomez-Pabon, 911 F.2d 847, 856 n.3 (1st Cir. 1990),
cert. denied, 498 U.S. 1074 (1991), admitting the statement into
evidence requires some extrinsic proof of the declarant's
involvement in the conspiracy. Thus, because the government
developed no independent evidence of who Brian Johnson's callers
30
or Joseph Baranski's passengers might have been, or what their
status might have been vis-a-vis the charged conspiracy, the
statements were improperly admitted under the coconspirator
exception to the hearsay rule.13
There is no bright-line rule for divining when
particular errors that result in a jury's exposure to improper
evidence are (or are not) harmless. Rather, a harmlessness
determination demands a panoramic, case-specific inquiry
considering, among other things, the centrality of the tainted
material, its uniqueness, its prejudicial impact, the uses to
which it was put during the trial, the relative strengths of the
parties' cases, and any telltales that furnish clues to the
likelihood that the error affected the factfinder's resolution of
a material issue. Gearing our inquiry along these lines, we
conclude that the errors in admitting the statements are benign.
The telephone talk concerned a peripheral matter, for Brian
Johnson was not on trial. Furthermore, several witnesses
testified at first hand that his wife and housemate, appellant
Cheryl Johnson, trafficked in cocaine. See supra Part II(D).
The passengers' remarks constituted cumulative evidence. They
13We do not mean to imply that the evidence might not have
been introduced for some other purpose. Suppose, for example,
that the telephone calls Putney received were not offered to show
that someone in fact sought to buy drugs from Brian Johnson, but,
rather, to show the types of telephone calls the Johnsons
received. If admissible on that basis, the statements would not
be excludable as hearsay. See Fed. R. Evid. 801(c); see also
United States v. Green, 887 F.2d 25, 27 (1st Cir. 1989)
(upholding admission of out-of-court statement to show motive,
not for the truth of the matter asserted).
31
inculpated only David Sepulveda, and a googol of witnesses tabbed
Sepulveda as a large-scale narcotics distributor who made
countless cocaine sales. Several of these witnesses swore that
they personally purchased drugs from him. Against this tidal
wave of evidence, Baranski's testimony was a drop in the
proverbial bucket. Because the record offers every assurance
that the errant statements did not affect the trial's outcome,
they were harmless.14 See United States v. Ladd, 885 F.2d 954,
957-58 (1st Cir. 1989); Dworken, 855 F.2d at 26.
VI. EXPERT TESTIMONY
At trial, the government's case culminated in the
testimony of Commander Richard Gerry of the New Hampshire Drug
Task Force. Before Commander Gerry testified, the prosecutor
told the court that Gerry's views would be based upon the trial
testimony and his experience as a police officer, and predicted
that Gerry would "explain to the jury how the quantities of drugs
. . . referred to in the . . . testimony at trial [were] used and
distributed . . . from the business aspect." Based on this
representation, the court denied appellants' motion in limine and
permitted the witness to testify.
14Appellants also assign error to four statements that were
admitted without objection. Absent a showing of plain error, the
failure to object below is fatal to claims that particular
evidence should not have reached the jury. See Ortiz, 966 F.2d
at 715; Perkins, 926 F.2d at 1283; see also Fed. R. Evid. 103(a).
We find no plain error in connection with the admission of the
four statements; their introduction, whether viewed singly or in
combination, did not "seriously affect the fundamental fairness
and basic integrity of the [trial]," United States v. Griffin,
818 F.2d 97, 100 (1st Cir.), cert. denied, 484 U.S. 844 (1987),
or otherwise impair appellants' substantial rights.
32
In the initial stages, the testimony went according to
plan: Commander Gerry discussed the ways in which drug dealers
commonly package their products and reviewed the economics of the
cocaine trade (illustrating the profit to be gained by buying and
selling in various quantities). Despite this promising start,
matters soon deteriorated. Although Commander Gerry offered
opinions as to appellants' roles in the enterprise,
characterizing David Sepulveda as "top dog" and the others as
rank-and-file members of the organization, cross-examination
revealed that these opinions were less the fruit of an expert
mind attuned to the testimony in the case than the yield of
undifferentiated conversations over the years with unidentified
police officers regarding Sepulveda and his associates. So
ingrained were the roots of Commander Gerry's opinions that he
was unable to specify the sources of his information or, in the
end, articulate a plausible basis for his views. The speculative
nature of Gerry's testimony became starkly apparent when the
defense established that he had heard only bits and pieces of the
testimony in the case. These rather startling insights cast
grave doubt upon both the adequacy of the foundation on which
Gerry's testimony rested and the existence of a fair opportunity
for effective cross-questioning.
Midway through cross-examination the defense moved to
strike the expert's testimony in toto. The district court
granted the motion. We think the defects in the expert's
presentation warranted this step. Fed. R. Evid. 705 provides in
33
pertinent part that an expert witness "may . . . be required to
disclose [on cross-examination] the underlying facts or data" on
which his opinions rest. If cross-examination reveals that the
opinions advanced by an expert rest on a wholly inadequate
foundation, the judge, on timely motion, may strike the
testimony. See, e.g., United States v. Scop, 846 F.2d 135, 142-
43 (2d Cir. 1988); Benjamin v. Peter's Farm Condo. Owners Ass'n,
820 F.2d 640, 641 (3d Cir. 1987); see also 3 David W. Louisell et
al., Federal Evidence 400, at 709-10 (1979).
The district judge also told the jury to disregard the
offending testimony "entirely." His instruction was firm, clear,
and to the point. Appellants neither objected to its form nor
sought to have the judge improve upon it. The next day, however,
appellants moved for a mistrial. The judge denied the motion.
On appeal, appellants lament the denial of both their original
motion in limine and their subsequent motion for a mistrial.
A. The Motion in Limine.
The admission of expert testimony is governed by Fed.
R. Evid. 702, which authorizes the district court to admit such
testimony if, and to the extent that, it will "assist the trier
of fact to understand the evidence or to determine a fact in
issue . . . ." Id. Because gauging an expert witness's
usefulness is almost always a case-specific inquiry, the law
affords trial judges substantial discretion in connection with
the admission or exclusion of opinion evidence. See Apostol v.
United States, 838 F.2d 595, 599 (1st Cir. 1988); United States
34
v. Hoffman, 832 F.2d 1299, 1310 (1st Cir. 1987); see also 3 Jack
Weinstein & Margaret A. Berger, Weinstein's Evidence 702[02] at
702-22 to 702-23 (1993). It follows that a trial judge's rulings
in this sphere should be upheld "unless manifestly erroneous."
Salem v. United States Lines Co., 370 U.S. 31, 35 (1962); see
also Hoffman, 832 F.2d at 1310 (explaining that "the district
court's assessment of what will or will not assist the jury is
entitled to considerable deference in the Rule 702 milieu").
Given the government's preliminary proffer, there was
no need for outright exclusion of the anticipated testimony. The
Supreme Court has recently reaffirmed that when a party proffers
an expert, the trial judge performs a gatekeeping function,
determining whether it is reasonably likely that the expert
possesses specialized knowledge which will assist the trier
better to understand a fact in issue. See Daubert v. Merrell Dow
Pharmaceuticals, Inc., 113 S. Ct. 2786, 2796 (1993). The
witness's opinions need "not [be] based on first-hand knowledge
or observation." Id. at 2796.
Seen in light of these authorities, the district court
had a reasonable basis for allowing the expert to testify. If
Commander Gerry's pedagogy proved to be as advertised, his
testimony arguably would have assisted the jury in understanding
the voluminous evidence that had emerged. Experienced
investigators are commonly permitted to testify as experts on
topics such as the structure of a criminal enterprise, the
economics of the drug trade, and the handling of contraband.
35
See, e.g., United States v. Angiulo, 897 F.2d 1169, 1188-89 (1st
Cir.) (allowing veteran FBI agent to offer opinions, based mainly
on information presented at trial, about defendants' roles in
gambling ring), cert. denied, 498 U.S. 845 (1990); Ladd, 885 F.2d
at 959 (allowing experienced police officer to testify about
methods of packaging and processing heroin, and relationship to
distribution venture); United States v. Angiulo, 847 F.2d 956,
973-75 (1st Cir.) (allowing suitably credentialed agent to offer
expert opinions about structure and operation of La Cosa Nostra,
including defendants' relationships to that organization), cert.
denied, 488 U.S. 928 (1988); Hoffman, 832 F.2d at 1310 (allowing
knowledgeable federal agent to testify as an expert on the
practices and idiom of the cocaine community).
In sum, the lower court's denial of the motion in
limine cannot be faulted. The unhappy fact that, in hindsight,
the expert turned out to be a dud does not retroactively negate
the lawfulness of the court's original ruling. Trial judges,
whose lot is often to make swift battlefield decisions on tangled
evidentiary matters, cannot be expected to foretell the future
with absolute accuracy.15
B. The Motion for Mistrial.
15When uncertainty attends a proffer of opinion evidence,
voir dire screenings are standard fare. See, e.g., Tokio Marine
& Fire Ins. Co. v. Grove Mfg. Co., 958 F.2d 1169, 1175 & n.4 (1st
Cir. 1992); Freeman v. Package Mach. Co., 865 F.2d 1331, 1337
(1st Cir. 1988); cf. United States v. Griffin, 818 F.2d 97, 105
(1st Cir.) (discussing utility of voir dire in an analogous
context), cert. denied, 484 U.S. 844 (1987). But although
appellants moved in limine to forfend Gerry's testimony, they
apparently never sought permission to conduct a voir dire.
36
Appellants' next assignment of error presents a
slightly closer question. Although the district court struck
Commander Gerry's half-completed testimony and told the jurors to
disregard what they had heard, appellants assert that the court
erred in refusing to grant a mistrial. At the core of
appellants' argument lies their insistence that the judge did no
more than hold a farthing candle to the sun; once Gerry's views
were aired, words from the bench, no matter how stentorian the
judge's tone, could not exorcise the resultant prejudice.
Granting or denying a motion for a mistrial is a matter
committed to the trial court's discretion. See De Jongh, 937
F.2d at 3; United States v. Chamorro, 687 F.2d 1, 6 (1st Cir.),
cert. denied, 459 U.S. 1043 (1982). The exercise of that
discretion always must be informed by the circumstances of the
particular case. When, as now, a motion to declare a mistrial
has its genesis in a claim that improper evidence came before the
jury, the court must first weigh the claim of impropriety and, if
that claim is well founded, strike the offending evidence. Next,
unless the court believes that the evidence is seriously
prejudicial and that a curative instruction will be an
insufficient antidote, the court should proceed with the trial
after instructing the jury to disregard the evidence. Declaring
a mistrial is a last resort, only to be implemented if the taint
is ineradicable, that is, only if the trial judge believes that
the jury's exposure to the evidence is likely to prove beyond
realistic hope of repair.
37
In this instance, Judge Devine followed the standard
paradigm as closely as possible, considering appellants' delay in
offering the mistrial motion. Three factors persuade us that he
handled the situation in an appropriate manner. First, courts
have long recognized that, within wide margins, the potential for
prejudice stemming from improper testimony or comments can be
satisfactorily dispelled by appropriate curative instructions.
See, e.g., United States v. Figueroa, 900 F.2d 1211, 1216 (8th
Cir.), cert. denied, 496 U.S. 942 (1990); United States v.
Ferreira, 821 F.2d 1, 5-6 (1st Cir. 1987); United States v.
Cirrincione, 780 F.2d 620, 635 (7th Cir. 1985). The instructions
given here pass the test of appropriateness; indeed, appellants
have not suggested any way in which they might have been
improved.
Second, Judge Devine did not allow sores to fester.
Rather, he halted Commander Gerry's testimony in midstream and
instructed the jurors to discard the faulty evidence. Swiftness
in judicial response is an important element in alleviating
prejudice once the jury has been exposed to improper testimony.
See, e.g., United States v. Pryor, 960 F.2d 1, 2-3 (1st Cir.
1992); United States v. Hernandez, 891 F.2d 521, 523 (5th Cir.
1989), cert. denied, 495 U.S. 909 (1990). In this case, the
judge could scarcely have acted more celeritously.
Third, appellate courts inquiring into the
effectiveness of a trial judge's curative instructions should
start with a presumption that jurors will follow a direct
38
instruction to disregard matters improvidently brought before
them. See United States v. Olano, 113 S. Ct. 1770, 1781 (1993);
Richardson, 481 U.S. at 206. Though rebuttable, the presumption
endures unless it appears probable that, in a particular case,
responsible jurors will not be able to put the testimony to one
side, and, moreover, that the testimony will likely be seriously
prejudicial to the aggrieved party. See United States v. Paiva,
892 F.2d 148, 160 (1st Cir. 1989) (collecting cases).
Read as a whole, Commander Gerry's partially completed
testimony does not strike us as so compelling that its impact
would linger even after the court's stern admonition. The
testimony is virtually indistinguishable from the vast array of
other evidence introduced by the prosecution, and, therefore, it
is of the cumulative vintage.16 We have routinely found
cumulative evidence impotent when accidentally uncorked. See,
e.g., United States v. Ellis, 935 F.2d 385, 393 (1st Cir.), cert.
denied, 112 S. Ct. 201 (1991); United States v. Morris, 700 F.2d
427, 431 (1st Cir.), cert. denied, 461 U.S. 947 (1983). So it is
here. Appellants have not successfully rebutted the presumption
that the jury heeded the judge's instructions.
In a last-ditch effort to save the day, appellants come
at the question of undue prejudice from a slightly more oblique
16It is, perhaps, worth noting that the only defendant
discussed in any detail by the witness was David Sepulveda a
defendant as to whom the prosecution adduced overwhelming
evidence of guilt. We add that, although there were different
quanta of evidence as to each defendant, a painstaking review of
the record inspires confidence that Gerry's testimony had no
significant spillover effect vis-a-vis other defendants.
39
angle. They allege that the government's questioning of
Commander Gerry went so far beyond the limits of propriety that
putting him on the witness stand amounted to prosecutorial
misconduct. But the record simply does not support this
accusation. The government had a reasonable basis for offering
Gerry as an expert witness. Although the decision did not pan
out, that is no reason to consign either the prosecutor or the
prosecution to the juridical equivalent of philotheoparoptesism.
Like judges, prosecutors cannot be held to a standard of utter
prescience.17
For these reasons, we discern no abuse of discretion in
either the district court's initial admission of Commander
Gerry's testimony or the court's refusal to declare a mistrial
after the necessity to strike the testimony arose. In a
nutshell, there was no reason to believe that the infelicitously
offered evidence remained in the jurors' minds after it was
banished from the case, and, consequently, no need for the court
to jettison the baby when the bath water turned tepid.
VII. CLOSING ARGUMENT
Appellants contend that the prosecutors' comments
17Moreover, if blame is to be assigned, appellants must
share in it. They could have, but did not, ask for a voir dire.
See supra note 15. A party who elects not to request voir dire
of an opponent's expert runs certain risks. When a predictable
risk materializes, there is little incentive for courts to be
sympathetic. Cf., e.g., Paterson-Leitch Co. v. Massachusetts
Mun. Wholesale Elec. Co., 840 F.2d 985, 989 (1st Cir. 1988)
("Courts, like the Deity, are most frequently moved to help those
who help themselves.").
40
during closing argument constituted reversible error because some
statements spotlighted appellants' joint decision not to testify
and others unfairly inflamed the jury's passions.18 Although
these contentions are obviously related, we analyze them
separately.
A. Comments on Defendants' Silence.
We begin with bedrock. The Fifth Amendment forbids any
comment by the prosecutor on the defendant's exercise of the
right to remain silent. See United States v. Robinson, 485 U.S.
25, 30 (1988); Griffin v. California, 380 U.S. 609, 615 (1965).
The proposition is more easily stated than applied. There is no
bright line marking the precipice between a legitimate assessment
of defense witnesses and an impermissible encroachment upon the
accused's silence. Prosecutors who choose to explore such rugged
terrain must take particular care not to comment upon, or call
the jury's attention to, a defendant's failure to take the
witness stand. See United States v. Lavoie, 721 F.2d 407, 408
(1st Cir. 1983), cert. denied, 465 U.S. 1069 (1984); Rodriguez-
Sandoval v. United States, 409 F.2d 529, 531 (1st Cir. 1969).
Nonetheless, the road runs in both directions, leading
to a rough mutuality of obligation. Defense attorneys have a
responsibility to exercise reasonable vigilance and direct the
trial court's immediate attention to perceived trespasses. See
generally Ortiz, 966 F.2d at 715 (pointing out that "attorneys
18We use "prosecutors" in the plural because one government
attorney delivered the initial summation and another handled
rebuttal.
41
must usually bear the responsibility for preserving their
points"); United States v. Griffin, 818 F.2d 97, 100 (1st Cir.)
(discussing the "obligation to alert the district judge to error-
in-the-making"), cert. denied, 484 U.S. 844 (1987). Although
excessive summations may on rare occasions constitute plain
error, redressable after the fact notwithstanding the absence of
a contemporaneous objection, see, e.g., Arrieta-Agressot v.
United States, 3 F.3d 525, 528 (1st Cir. 1993), a criminal
defendant who believes that a prosecutor's closing argument goes
too far must usually object to the offending statements when and
as they are uttered. See id. In this way, the prosecution can
clarify ambiguities and correct mislocutions in a timely manner,
and, if necessary, the trial judge can administer an immediate
antidote, thereby curtailing any damage.
None of the appellants chose to testify at trial. Yet,
the prosecutors courted trouble in both segments of their closing
argument. Initially, one of them asked rhetorically:
Did anyone come into this courtroom and say
what the Government witnesses told you didn't
happen? Did they? They attacked the
witnesses, the DEA, the police officers, [and
the government attorneys]. . . .
On rebuttal, her colleague expanded upon (and twice repeated) the
same theme:
The United States introduced a lot of
evidence during this trial, a lot of facts.
And for the most part, there is no evidence
in this case to show that what our witnesses
said happened did not happen. That is, the
defendants have done little or nothing to
refute that evidence.
42
* * *
Ladies and gentlemen, we stand on the
evidence, the overwhelming evidence, the
evidence which, for the most part, the
defendants have done absolutely nothing to
refute . . . .
It was only after the jury had been dismissed for the day that
appellants, having sat silently throughout both segments of the
prosecutors' summations, moved for a mistrial based in part on
the quoted statements. The trial court denied the motion as
untimely and sent the case to the jury the next morning. In the
course of the charge, Judge Devine stated on five separate
occasions that the government was responsible for carrying the
burden of proof, that the defendants had the right to remain
silent, and that no inferences might be drawn from the
defendants' election not to testify.19
In assaying the appropriateness of a prosecutor's
remarks, context frequently determines meaning. See, e.g.,
United States v. Young, 470 U.S. 1, 11 (1985); United States v.
Akinola, 985 F.2d 1105, 1111 (1st Cir. 1993); United States v.
Lilly, 983 F.2d 300, 307 (1st Cir. 1992). Once the prosecutor's
words are placed in context, we inquire whether "the language
used was manifestly intended or was of such character that the
jury would naturally and necessarily take it to be a comment on
19To be sure, the judge did not specifically direct the jury
to disregard the comments quoted above. Yet, appellants neither
sought such an instruction nor objected to its absence. A trial
court's failure to launch a limiting instruction sua sponte is
not reversible error. See, e.g., United States v. De La Cruz,
902 F.2d 121, 134 (1st Cir. 1990); Rivera-Santiago, 872 F.2d at
1083.
43
the failure of the accused to testify." United States v. Glantz,
810 F.2d 316, 322 (1st Cir.) (citations omitted), cert. denied,
482 U.S. 929 (1987); see also Lilly, 983 F.2d at 307.20 In
borderline cases, the standard of review can figure importantly.
When no contemporaneous objection appears of record, appellate
review is for plain error. See Arrieta-Agressot, 3 F.3d at 528;
United States v. Smith, 982 F.2d 681, 682 (1st Cir. 1993); see
also Fed. R. Crim. P. 52(b). And in the absence of a
contemporaneous objection it seems fair to give the arguer the
benefit of every plausible interpretation of her words. See
United States v. Donlon, 909 F.2d 650, 656-57 (1st Cir. 1990);
Glantz, 810 F.2d at 323; cf. Robinson, 485 U.S. at 31 (noting
that counsel's failure to object contemporaneously suggests that
the arguer's statement is not ambiguous).
In this case, the prosecutors' remarks, taken in
context and at face value, do not appear to constitute a comment
on the accuseds' silence. The government's closing argument
recounted the evidence against each defendant and, while
admitting that certain prosecution witnesses possessed unsavory
reputations and might profit by cooperation, the prosecutors
urged the jury to find that those witnesses testified truthfully.
Not surprisingly, defense counsels' summations played up the
20In this case, the district court apparently did not
believe that the prosecutors intended the statements as a
reflection on the defendants' failure to testify and appellants
have not imputed so malign a motive to the prosecution team. We
focus, therefore, on what the jury might have taken the
statements to imply.
44
credibility theme, systematically besmirching the reliability of
the government's witnesses, stressing internal inconsistencies,
and outlining perceived conflicts between the testimony of
different witnesses. Throughout, counsel paraded the cooperating
witnesses' criminal records past the jury and made much of what
those witnesses stood to gain by currying favor with the
authorities.
Visualized against this backdrop, and assigning
ordinary words their most natural meaning, the prosecution's
argument that the defense had not successfully rebutted
incriminating evidence seems not to be a comment on appellants'
failure to testify but a comment about the credibility of the
government's case. Arguments of this stripe do not trespass upon
the accused's right to remain silent. See Lockett v. Ohio, 438
U.S. 586, 595 (1978) (finding remarks that evidence was
"unrefuted" and "uncontradicted" not to violate the Fifth
Amendment); see also United States v. Pitre, 960 F.2d 1112, 1124
(2d Cir. 1992) (upholding a prosecutor's comment that defendant
had offered no competing explanation); United States v. Castillo,
866 F.2d 1071, 1083 (9th Cir. 1988) (upholding a prosecutor's
remark about defendant's failure to rebut evidence); United
States v. Borchardt, 809 F.2d 1115, 1119 (5th Cir. 1987)
(similar). Within the bounds of fair play and due process,
prosecutors are not barred from making powerful arguments.
To be sure, it is conceivable that a juror hearing the
prosecutors' words might have interpreted them as a commentary on
45
appellants' joint decision not to testify. But we cannot decide
this case based on what amounts to a doomsday scenario. After
all, an appellate court is not at liberty to "infer that a
prosecutor intends an ambiguous remark to have its most damaging
meaning or that a jury, sitting through lengthy exhortation, will
draw that meaning from the plethora of less damaging
interpretations." Lilly, 983 F.2d at 307 (citation omitted); see
also Robinson, 485 U.S. at 31 (explaining "that an appellate
court may [not] substitute its reading of ambiguous language for
that of the trial court"). We are particularly unwilling to fish
in the pool of ambiguity where the defendants did not
contemporaneously object or otherwise bring the district court's
attention to any potentially harmful circumlocution during the
summations. Hence, we rule that the prosecutors' lack-of-
refutation references did not require a mistrial.
B. Inflammatory Statements.
The second half of appellants' challenge to the
government's final argument implicates what appellants
characterize as four attempts to inflame the jury, viz., the
prosecutors' suggestion that the jury could consider the effect
on the community should the Sepulveda organization be able to
continue in business;21 two references to the "war on
21The first prosecutor argued, inter alia:
We put this organization out of business.
And it's up to you to decide that it stays
that way. Because ask yourselves, the
business practices of this organization, this
organized group of drug dealers, what
46
drugs";22 and a monition that feelings of pity should be
subordinated to the call of civic duty.23 Because defendants
failed to object to these remarks when they were voiced, we
review them only for plain error. See Smith, 982 F.2d at 682.
Under that regime, we are constrained to stay our hand unless
improper remarks "so poisoned the well that the trial's outcome
practices will be allowed to continue in the
streets of Manchester and the surrounding
towns of New Hampshire if these people are
allowed or permitted to revive the drug ring
. . . .
22In rebuttal argument, the second prosecutor stated:
It's a sad but true fact of law enforcement,
particularly of this war on drugs, that if
you're going to try to clean out the sewers,
you've got to roll up your sleeves and get
down in with the filth, and, ladies and
gentlemen, I, for one, am proud to have gone
down into those sewers and I'm proud to have
been part of this prosecution team and I'm
proud to be a small part of this war on
drugs.
23In rebuttal, the second prosecutor also suggested:
[I]f perhaps you do feel sorry for anyone,
then what I'm asking you to do, ladies and
gentlemen, is to override any such feelings
with your sense of duty as jurors, with your
sense of responsibility as citizens, and with
your desire to do the job you've sworn to do
in this court of law. And consider this.
During this testimony Kurt Coriaty said that
if he had not been indicted and prosecuted
for his drug dealings, that he would still be
on the street today selling drugs. So ask
yourselves, ladies and gentlemen, if you fail
to do your duty as jurors and find any
defendant not guilty just because you feel
sorry for him, are you doing your community a
service? Are you doing your families a
service? And are you really doing that
defendant a service?
47
was likely affected." United States v. Mejia-Lozano, 829 F.2d
268, 274 (1st Cir. 1987); accord United States v. Mateos-Sanchez,
864 F.2d 232, 240-41 (1st Cir. 1988). None of the quoted
statements comprise plain error in the setting of this trial.
1. Protection of the Community. The first statement,
1. Protection of the Community.
see supra note 21, went too far: prosecutors overreach when they
ask jurors to function as de facto vigilantes. Yet, importantly,
cf. United States v. Lester, 749 F.2d 1288, 1301 (9th Cir. 1984),
there is no sign that the buzznacking about the Sepulveda
organization resuming operations, while gratuitous, was part of a
pattern of remarks specifically intended to inflame the jury.
The reference was not prominently featured in the summation;
rather, it was prefatory, serving to introduce a recitation of
evidence that had been presented at the trial. When, as in this
case, the evidence of defendants' guilt is strong, courts should
be very reluctant to find plain error in misguided rhetoric. See
United States v. Santana-Camacho, 833 F.2d 371, 373-74 (1st Cir.
1987); Mejia-Lozano, 829 F.2d at 274; United States v. Capone,
683 F.2d 582, 586-87 (1st Cir. 1982). So here: we think it is
wildly improbable, given the weight of the evidence, that what we
read as an isolated, relatively subdued appeal for law
enforcement affected the trial's outcome. Consequently, the
resumption-of-business remarks do not furnish a basis for
reversal. See United States v. Smith, 918 F.2d 1551, 1562-63
(11th Cir. 1990); Hernandez, 891 F.2d at 527; United States v.
Monaghan, 741 F.2d 1434, 1441 n.30 (D.C. Cir. 1984), cert.
48
denied, 470 U.S. 1085 (1985).
2. The War on Drugs. A somewhat different set of
2. The War on Drugs.
considerations informs our analysis of the next two passages.
Defense attorneys introduced the phrase "war on drugs" and used
it repeatedly during their opening statements and, later, during
their summations. Mindful of the environment created by the
defense, we cannot say that the government's two rebuttal
references to an ongoing war on drugs, though better left unsaid,
comprised plain error. The ancient adage applies: what is sauce
for the government's goose often may prove to be sauce for the
defendants' gander.
Although we deplore frank appeals to passion of the
sort typified by "war on drugs" rhetoric, see, e.g., Arrieta-
Agressot, 3 F.3d at 527, we regard it as settled that references
to law enforcement efforts are not forbidden in summation if such
references are incited or invited by, or fairly respond to,
defendants' closing statements. See, e.g., Smith, 918 F.2d at
1563; United States v. Brown, 887 F.2d 537, 542 (5th Cir. 1989);
Machor, 879 F.2d at 956; United States v. Bascaro, 742 F.2d
1335, 1353-54 (11th Cir. 1984), cert. denied, 472 U.S. 1017
(1985). Though there may well be exceptions to this rule,24 no
such exceptions lie for cases like this one cases where the
dysphemisms are few in number, do not escalate the level of fire
24We have, for instance, warned prosecutors that "there are
limits to the extent that we will permit fighting fire with
fire." Mejia-Lozano, 829 F.2d at 274. Merely because a defense
attorney opens the door does not mean that a prosecutor can come
storming through it in a pair of hobnailed boots.
49
and brimstone that characterized the defense's oratory, and do
not provoke a contemporaneous objection. See United States v.
Tajeddini, 996 F.2d 1278, 1285 (1st Cir. 1993); Mejia-Lozano, 829
F.2d at 274.
3. Discouraging Sympathy. For somewhat similar
3. Discouraging Sympathy.
reasons, we find the final challenged statement, quoted supra
note 23, to fall within the pale. Viewed in context, this
statement, which questioned whether an acquittal out of sympathy
would be in the community interest, was made to dampen the
defense's flirtation with jury nullification (described infra
Part VIII). Courts should allow prosecutors greater leeway in
rebuttal when the defense has itself breached the standards for
proper summation. See Young, 470 U.S. at 11; Lawn v. United
States, 355 U.S. 339, 359 n.15 (1958); Mejia-Lozano, 829 F.2d at
274; United States v. Flaherty, 668 F.2d 566, 598 (1st Cir.
1981). Applying this offshoot of the goose-and-gander principle,
we hold that the challenged comment did not constitute plain
error.
VIII. JURY NULLIFICATION
The defendants invoked the specter of jury
nullification during final arguments. Labrie's lawyer, in
particular, invited the jury to "send out a question" concerning
this doctrine. Three non-events followed; the government did not
object to this soliloquy, the district court did not intervene
sua sponte, and the court's charge did not broach the subject.
Nevertheless, the deliberating jury took the invitation literally
50
and asked the judge to "[c]larify the law on jury nullification."
The court responded by telling the jury:
Federal trial judges are forbidden to
instruct on jury nullification, because they
are required to instruct only on the law
which applies to a case. As I have indicated
to you, the burden in each instance which is
here placed upon the Government is to prove
each element of the offenses . . . beyond a
reasonable doubt, and in the event the
Government fails to sustain its burden of
proof beyond a reasonable doubt as to any
essential element of any offense charged
against each defendant, it has then failed in
its burden of proof as to such defendant and
that defendant is to be acquitted. In short,
if the Government proves its case against any
defendant, you should convict that defendant.
If it fails to prove its case against any
defendant you must acquit that defendant.
Appellants objected to this supplemental instruction. They now
argue that the instruction amounted to a wrongful repudiation of
the time-honored concept of jury nullification.
The applicable rule is that, although jurors possess
the raw power to set an accused free for any reason or for no
reason, their duty is to apply the law as given to them by the
court. See United States v. Boardman, 419 F.2d 110, 116 (1st
Cir. 1969), cert. denied, 397 U.S. 991 (1970). Accordingly,
while jurors may choose to flex their muscles, ignoring both law
and evidence in a gadarene rush to acquit a criminal defendant,
neither the court nor counsel should encourage jurors to exercise
this power. See United States v. Trujillo, 714 F.2d 102, 106
(11th Cir. 1983). A trial judge, therefore, may block defense
attorneys' attempts to serenade a jury with the siren song of
nullification, see United States v. Garcia-Rosa, 876 F.2d 209,
51
226 (1st Cir. 1989); and, indeed, may instruct the jury on the
dimensions of their duty to the exclusion of jury nullification,
see Trujillo, 714 F.2d at 105-06 (collecting cases).
To the extent that appellants, during closing argument,
managed to mention nullification, they received more than was
their due. Having pocketed this gratuity, appellants now
complain that they were not allowed to capitalize on it. When
the jurors rose to the bait, appellants say, Judge Devine should
have assured them that nullification is an "historical
prerogative" of juries from time immemorial. We disagree.
Though jury nullification has a long and sometimes storied past,
see Boardman, 419 F.2d at 116, the case law makes plain that a
judge may not instruct the jury anent its history, vitality, or
use. See, e.g., United States v. Desmarais, 938 F.2d 347, 350
(1st Cir. 1991) (collecting cases). This proscription is
invariant; it makes no difference that the jury inquired, or that
an aggressive lawyer managed to pique a particular jury's
curiosity by mentioning the subject in closing argument, or that
a napping prosecutor failed to raise a timely objection to that
allusion. Thus, the district court appropriately scotched
appellants' suggested jury instruction.
Appellants' fallback position that the district
court, if disinclined to sing the praises of jury nullification,
should have refrained from giving any supplemental instruction
and, instead, should have stonewalled is not well conceived.
The objection focuses on the district court's opening comment
52
that "[f]ederal trial judges are forbidden to instruct on jury
nullification," interpreting this as a judicial prohibition
against the jury's use of its inherent power. The objection
fails for several reasons, most noticeably because the quoted
statement conveys no such chilling effect.
Taken literally, the judge's comment is an accurate
recitation of the law and an appropriate rejoinder to the jury's
question on nullification (a question that appellants prompted).
The district court explained why it could not answer the jury's
request for more information on nullification. The court went on
to repeat its earlier instruction that if the government proved
its case the jury "should" convict, while if the government
failed to carry its burden the jury "must" acquit. This contrast
in directives, together with the court's refusal to instruct in
any detail about the doctrine of jury nullification, left
pregnant the possibility that the jury could ignore the law if it
so chose. Whether the jury perceived this possibility or not, no
error infiltrated the court's supplemental instruction.
IX. VARIANCE BETWEEN INDICTMENT AND PROOF
Appellants Edgar Sepulveda and Tony Rood now claim that
the district court should have acquitted them because they were
not part of the charged conspiracy. We review their claims to
determine whether there is sufficient evidence to support the
jury's verdict. See David, 940 F.2d at 732. We conclude that a
rational jury could find, as this jury did, that a single
conspiracy existed, and that the two objectors participated in
53
it.
We start with bedrock. Ordinarily, questions anent the
number and structure of conspiracies present matters of fact
suitable for resolution by a jury. See id.; United States v.
Boylan, 898 F.2d 230, 243 (1st Cir.), cert. denied, 489 U.S. 849
(1990). Of course, the jury's inquiry is guided by certain
principles. For example, in a unitary conspiracy it is not
necessary that the membership remain static, see United States v.
Perholtz, 842 F.2d 343, 364 (D.C. Cir.), cert. denied, 488 U.S.
821 (1988), or that all members join at the same time, see United
States v. Cintolo, 818 F.2d 980, 997 (1st Cir.) (deeming that
latecomers to a conspiracy adopt the prior acts and declarations
of earlier arrivals), cert. denied, 484 U.S. 913 (1987), or that
a given member knows all his fellow coconspirators, see Rivera-
Santiago, 872 F.2d at 1079. Similarly, the modus operandi of a
conspiracy may vary over time without negating the existence of a
single conspiracy. See Garcia-Rosa, 876 F.2d at 223.
Turning to the instant case, several defendants argued
that they were not members of the charged conspiracy. The
district court instructed the jury that it should convict a
particular defendant only if it found him or her to be part of
the single conspiracy limned in the indictment. The court
cautioned the jurors that they must acquit any defendant not
linked to that conspiracy even if they concluded that such
defendant had been a member of a separate, equally heinous
conspiracy. The verdict, then, had the effect of rejecting the
54
"multiple conspiracy" defense, instead signifying the jury's
contrary conclusion that the appellants collogued together within
the framework of the master conspiracy.
To be sure, the charged conspiracy had a protean
quality but many criminal conspiracies, particularly large
conspiracies that function for extended periods of time, must
adjust to cope with changing conditions. In this respect,
conspiracies are like other business organizations: a conspiracy
may hire, fire, retool, change suppliers, expand, downsize,
refine its operating practices, undertake new marketing
strategies, or shift its priorities from time to time without
sacrificing its essential identity. It is, therefore, not fatal
to the government's "single conspiracy" theory that David
Sepulveda began his career by patronizing a cocaine supplier in
Nashua, and later switched to a source in Lawrence. Likewise,
the fact that the organization's methods and tactics evolved over
time did not dictate a finding of two, three, or four separate
conspiracies. The government offered evidence showing that,
throughout the six-year period covered by the indictment, the
goals of the organization were constant, its leadership did not
change, and much of its membership remained stable. These are
important indicia of unitariness. See David, 940 F.2d at 734.
All in all, we find the common threads adequate to create a jury
question as to whether a single conspiracy existed.
The evidence tying Edgar Sepulveda to the single
conspiracy is more than ample. Two witnesses testified that
55
Edgar, himself, sold them cocaine. Four witnesses testified that
Edgar routinely accompanied his brother, David, on drug-buying
sprees. One of these witnesses, Norberto Perez, testified to
taking an average of one such trip a week with the Sepulveda
siblings over a protracted period of time. Another witness, John
Rice, testified that he saw the Sepulvedas packaging cocaine at
Driesse's home.
There is similar, albeit less pervasive, evidence of
Rood's role in the organization. Perez testified that he and
Rood made over fifteen trips to Lawrence in order to replenish
David Sepulveda's drug inventory. When David agreed to pay
Santos in kind for chauffeuring him during a drug delivery, he
instructed Rood, in Santos's presence, to give Santos his
stipend. On another occasion, David sent Rood and Perez to
retrieve cocaine that had been abandoned during a police chase.
Finally, a gaggle of witnesses, including Santos, testified that
they had purchased cocaine from Rood. From this variegated proof
the jury could permissibly weave a tapestry linking Rood with the
master conspiracy rather than isolating him within the cloister
of the self-styled "mini-conspiracy" in which he now professes to
have been involved. See Moran, 984 F.2d at 1304; Glenn, 828 F.2d
at 861-62.
To recapitulate, the record satisfactorily supports a
multifaceted finding that the single conspiracy charged in the
indictment existed and that both Edgar Sepulveda and Tony Rood
enlisted in it. Thus, no material variance existed and the
56
district court properly refused to order acquittal.
X. POTPOURRI
Appellants raise a number of other issues. Believing
that exegetic treatment of these points would serve no useful
purpose, we reject some by means of this global reference and
discuss the rest in summary fashion.
A. Particularity of the Indictment.
Two appellants challenge the particularity of the
indictment as it applies to them. While we comment separately on
each challenge, we first lay out the black-letter rule: in
general, an indictment is sufficiently particular if it
elucidates the elements of the crime, enlightens a defendant as
to the nature of the charge against which she must defend, and
enables her to plead double jeopardy in bar of future
prosecutions for the same offense. See Hamling v. United States,
418 U.S. 87, 117 (1974) (collecting cases); see also Fed. R.
Crim. P. 7(c)(1).
1. Arline Welch. Defendant Arline Welch argues that,
1. Arline Welch.
as it applies to her, the indictment transgresses the Hamling
guidelines. The gravamen of her complaint is that the indictment
neither contains the elements of the crime charged nor limns the
date, time, and place of her ostensible criminal activity. We
think her reading of the charging papers is colored by self-
interest.
The grand jury indicted Welch for conspiracy to possess
and distribute cocaine in violation of 21 U.S.C. 846. To
57
convict her, therefore, the government had to show beyond a
reasonable doubt that a drug-trafficking conspiracy existed about
which Welch knew and in which she voluntarily participated. See
David, 940 F.2d at 735 (explaining elements of conspiracy under
846); Gomez-Pabon, 911 F.2d at 852 (similar). The indictment
specifies the law which Welch is alleged to have violated and
elaborates that she, with others, "knowingly" and "intentionally"
agreed to act in contravention of that law. The indictment also
provides a temporal framework, asserts that Welch's residence was
used as a packaging center for the drug distribution ring, and
states that she worked as a "runner" and a "street-level dealer."
We think this information sufficiently spelled out the crime,
apprised Welch of the charge against which she had to defend, and
protected her from the boggart of double jeopardy. See Hamling,
418 U.S. at 117; Paiva, 892 F.2d at 154. In the last analysis,
indictments need not be infinitely specific.
2. Kevin Cullinane. Defendant Kevin Cullinane also
2. Kevin Cullinane.
challenges the indictment's particularity. Notwithstanding the
pervasive proof of his complicitous conduct adduced at trial, see
supra Part II(B), Cullinane points out that the indictment itself
only mentions him twice, asserting that he purchased cocaine from
David Sepulveda and that, on one specific occasion, he
distributed cocaine to another coconspirator. But the frequency
with which a person is (or is not) mentioned in an indictment is
an insufficient indicium of the indictment's particularity.
Here, the charging papers contained considerable contextual
58
detail. Given the indictment's general description of the
conspiracy and identification of the alleged coconspirators, we
find that it put Cullinane on fair notice and contained
information sufficient to allow him to prepare his defense. See
Hamling, 418 U.S. at 117. The drug conspiracy statute, 21 U.S.C.
846, does not require the government to plead or prove any
particular overt acts in furtherance of a charged conspiracy.
See United States v. O'Campo, 973 F.2d 1015, 1019-20 (1st Cir.
1992); Paiva, 892 F.2d at 155.
B. Bill of Particulars.
The same two appellants assign error to the lower
court's denial of their motions for bills of particulars.
Motions for bills of particulars are seldom employed in modern
federal practice. When pursued, they need be granted only if the
accused, in the absence of a more detailed specification, will be
disabled from preparing a defense, caught by unfair surprise at
trial, or hampered in seeking the shelter of the Double Jeopardy
Clause. See United States v. Abreu, 952 F.2d 1458, 1469 (1st
Cir.) (collecting cases), cert. denied, 112 S. Ct. 1695 (1992).
We review refusals to require such bills under an abuse-of-
discretion test. See United States v. Hallock, 941 F.2d 36, 40
(1st Cir. 1991).
Here, both appellants enjoyed the benefits of modified
open-file discovery, i.e., automatic discovery that encompassed
all relevant data except Jencks Act material related to witnesses
not employed in law enforcement. Neither appellant convincingly
59
relates a concrete instance of inability to prepare, untenable
surprise, or other cognizable prejudice stemming from the trial
court's refusal to mandate further particulars. For our part, we
have been unable to discover any such instance. In the
unremarkable circumstances of this case, the district court acted
well within the encincture of its discretion in denying
appellants' motions.
C. Speedy Trial.
Arline Welch contends that the court below erred in
refusing to dismiss the charges against her on the ground that
too long a time intervened between indictment and trial. Her
claim invokes the Speedy Trial Act, 18 U.S.C. 3161-3174
(1988). The Act provides in pertinent part:
In any case in which a plea of not
guilty is entered, the trial of a defendant
charged in an . . . indictment . . . shall
commence within seventy days from the filing
date . . . of the . . . indictment, or from
the date the defendant has appeared before a
judicial officer . . ., whichever date last
occurs.
18 U.S.C. 3161(c)(1).
For Speedy Trial Act purposes, time has both
quantitative and qualitative dimensions. The Act's 70-day trial
mandate, see id., exemplifies its quantitative side. On the
qualitative side, the Act excludes from the 70-day period
intervals of delay that result from such events as the pendency
of pretrial motions, see 18 U.S.C. 3161(h)(1)(F), the presence
of other defendants in the case "as to whom the time for trial
has not run and no motion for severance has been granted," id. at
60
3161(h)(7), or continuances which serve the "ends of justice,"
id. at 3161(h)(8)(A). Therefore, a violation of the Act occurs
only if (i) a sufficient number of days elapse (the quantitative
benchmark), and (ii) the days are nonexcludable (the qualitative
benchmark).
Against this background, the chronology of Welch's case
is telling. Her arraignment took place on November 19, 1990, and
her trial started on April 2, 1991. Quantitatively, this 134-day
interval exceeds the goal set by the Speedy Trial Act. But,
qualitatively, the record presents a much more excusatory
picture. The bulk of the time elapsed between arraignment and
trial is excludable for Speedy Trial Act purposes because
pretrial motions filed by the defendants, as a group, engendered
considerable delay (bringing the nonexcludable time to fewer than
35 days). Hence, the court below did not err in declining to
dismiss the case under the Speedy Trial Act.25 See, e.g.,
United States v. Ramirez, 973 F.2d 36, 37 (1st Cir. 1992)
(collecting cases); United States v. Torres Lopez, 851 F.2d 520,
526 (1st Cir. 1988), cert. denied, 489 U.S. 1021 (1989); United
States v. Anello, 765 F.2d 253, 256-58 (1st Cir.), cert. denied,
474 U.S. 996 (1985).
D. David Chase's Testimony.
At trial, David Chase testified that he regularly
25We note that the district court also granted an ends-of-
justice continuance on December 18, 1990, in response to David
Sepulveda's motion for an extension of discovery deadlines,
thereby providing an additional source of excludable time. See
18 U.S.C. 3161(h)(8)(A).
61
purchased cocaine from appellant Cullinane until, having grown
dissatisfied with the quality of Cullinane's wares, he began
buying directly from David Sepulveda. Cullinane argues before
us, as he argued below, that Chase's testimony should have been
purged because Chase did not explicitly tie Cullinane to
Sepulveda. We disagree.
The relevancy of a witness's testimony cannot be
gauged in isolation. See United States v. Hickey, 596 F.2d 1082,
1089 (1st Cir.), cert. denied, 444 U.S. 853 (1979). Several
witnesses other than Chase described Cullinane's dealings with
Sepulveda, including his purchases of contraband and their joint
participation in drug-buying excursions. Given this contextual
detail, the jury could well infer that the sales to Chase were
connected to the Cullinane-Sepulveda axis. In a criminal case,
proof need not be explicit; juries are permitted, indeed,
encouraged, to draw reasonable inferences from the facts before
them. See, e.g., Echeverri, 982 F.2d at 679; United States v.
Ingraham, 832 F.2d 229, 239-40 (1st Cir. 1987), cert. denied, 486
U.S. 1009 (1988). The district court did not abuse its
discretion in admitting evidence of Cullinane's sales to Chase as
circumstantial evidence of Cullinane's role in the distribution
network.
E. Steven Ranfros's Testimony.
David Sepulveda objected to the testimony of Steven
Ranfros, a police officer who recounted that Sepulveda and
several of his associates chased Ranfros when they discovered him
62
watching them from a wooded area. Sepulveda insists that
Ranfros's testimony lacks any relevance.
Relevance is defined in terms of probative value, see
Fed. R. Evid. 401, and trial courts are afforded wide discretion
in assessing the relevance and probative value of proffered
evidence. See United States v. Sutton, 970 F.2d 1001, 1006 (1st
Cir. 1992); United States v. Nickens, 955 F.2d 112, 125 (1st
Cir.), cert. denied, 113 S. Ct. 108 (1992). We will disturb an
exercise of that discretion only upon a showing of manifest
abuse. See United States v. Yefsky, 994 F.2d 885, 898 (1st Cir.
1993). We discern no such problem here. Ranfros's testimony
could be taken to bear on guilty knowledge, and, thus, the
district court had discretion to allow the jury to consider it.
F. The Terry Stop.
At trial, the government introduced evidence that the
police seized $4,200 from David Sepulveda after a highway stop
near Nashua. Sepulveda moved to suppress the evidence. The
government contended that the cash constituted the fruits of a
search incident to a lawful arrest. The district court denied
the suppression motion without comment. Sepulveda assigns error
to this ruling and to the admission of evidence emanating from
the seizure.
In its appellate brief, the government concedes the
fallibility of the construct that it hawked in the district court
and, instead, attempts to justify the search under Terry v. Ohio,
392 U.S. 1, 29-30 (1968). At oral argument the government
63
executed yet another about-face, acknowledging that the Terry-
based yarn spun in its brief is easily unravelled. We do not
find it surprising that the prosecution, like a Pirandello
character in search of an author, has encountered insuperable
difficulties in articulating a viable theory: the short of it is
that the cash was unlawfully seized and that evidence derived
from the seizure should have been suppressed. We do not
understand why the government is unwilling simply to face that
fact or why it pressed so vigorously to have evidence obtained
in a patently illegal manner admitted in the first place.
At any rate, the matter is academic. As a general
rule, a defendant is not shielded if the government violates
someone else's constitutional rights. See United States v.
Santana, 6 F.3d 1, 8 (1st Cir. 1993). Consequently, Sepulveda's
coconspirators have no standing to raise a claimed abridgment of
his Fourth Amendment rights. See United States v. Padilla, 113
S. Ct. 1936, 1939 (1993); Rawlings v. Kentucky, 448 U.S. 98, 106
(1980).
As to Sepulveda himself, the erroneously admitted
evidence is cumulative. In testimony not covered by the motion
to suppress, a civilian witness, Michael Lacerte, related that he
had given the funds in question to Sepulveda so that Sepulveda
could buy cocaine. Lacerte also recounted Sepulveda's
explanation as to seizure of the money. Under the circumstances,
and bearing in mind the factors that frame our inquiry, see supra
pp. 30, whatever error inhered in admitting evidence anent the
64
seizure and its sequelae was entirely harmless.
G. Jury Taint.
At one point during the trial, a juror joked about one
of the defendants. The district court proceeded to question two
jurors out of earshot of the venire. After identifying the
individual responsible for the wisecrack, the court dismissed
her. Appellants moved unsuccessfully for a mistrial and now
posit error based on the denial of their motion.
We find nothing amiss. When a potentially taint-
producing event threatens to mar the jury's integrity, the
district court has fairly broad discretion in deciding whether
the situation is susceptible to remediation, and if so, what
corrective action might be appropriate. See Boylan, 898 F.2d at
258; Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 570 (1st
Cir. 1989). Unless the event leaves so sour a taste that less
extreme palliatives will prove inadequate to undo serious damage,
the mere possibility of jury taint does not necessitate a
mistrial. See United States v. Hunnewell, 891 F.2d 955, 960-61
(1st Cir. 1989). Mindful of the trial court's superior coign of
vantage, we accord great respect to a district judge's finding
that a jury has not been irreparably tainted. See Boylan, 898
F.2d at 258.
Here, the judge employed a combination of
amelioratives: he removed the offending juror from the case and
issued hortatory instructions to the remaining jurors. Given
what transpired, the judge's prescription seems reasonably well
65
calculated to protect the defendants' legitimate rights; the
joke, albeit tasteless, did not work a per se deprivation of
appellants' right to a fair trial. Consequently, the court acted
appropriately in refusing to abort the trial. See Hunnewell, 891
F.2d at 961.
H. Destruction of Evidence.
On May 5, 1989, in the course of a separate
investigation, the government took custody of certain telephone
records belonging to defendant Cullinane. After examining the
records, the government returned them to Cullinane's housemate.
In turn, the housemate threw them out. Seizing on this
development, appellant Arline Welch asseverates that those
records may have contained exculpatory material vis-a-vis her
relationship with Cullinane and that, therefore, the government's
failure to maintain them requires dismissal of the indictment.
The asseveration is full of holes.
Government destruction of potentially exculpatory
evidence only violates the rule in Brady, 373 U.S. at 87, if the
evidence possesses apparent exculpatory value that cannot fully
be replicated through other sources, and if the government acts
willfully or in bad faith in failing to preserve it. See Arizona
v. Youngblood, 488 U.S. 51, 58 (1988); California v. Trombetta,
467 U.S. 479, 488-89 (1984); United States v. Femia, F.3d
, (1st Cir. 1993) [No. 93-1276, slip op. at 8-9].
Government investigators typically cast a wide net and haul in a
variety of items. While evidence, once seized, cannot be
66
destroyed willy-nilly, the government does not become an insurer
of the perpetual availability of every item caught in its
investigatory net. See, e.g., United States v. Kincaid, 712 F.2d
1, 2-3 (1st Cir. 1983).
In the situation at hand, the government did not
destroy the records Welch seeks but merely returned them to
Cullinane's residence. There is no hint of bad faith and no
indication that the agents knew, or should have anticipated, that
Cullinane's friend would thereafter discard them. Accordingly,
Welch's motion is best regarded as a throwaway.26
I. Cumulative Error.
Appellants argue that even if certain trial errors,
taken in isolation, appear harmless, the accumulation of errors
effectively undermines due process and demands a fresh start. We
accept the theoretical underpinnings of this argument.
Individual errors, insufficient in themselves to necessitate a
new trial, may in the aggregate have a more debilitating effect.
See, e.g., United States v. Dwyer, 843 F.2d 60, 65 (1st Cir.
1988); Dunn v. Perrin, 570 F.2d 21, 25 (1st Cir.), cert. denied,
437 U.S. 910 (1978); cf. United States v. Samango, 607 F.2d 877,
884 (9th Cir. 1979) (employing cumulative error doctrine to
invalidate results of grand jury proceeding). In other words, a
column of errors may sometimes have a logarithmic effect,
producing a total impact greater than the arithmetic sum of its
26In view of this shortfall, we need not address the other
prongs of the test.
67
constituent parts.
Of necessity, claims under the cumulative error
doctrine are sui generis. A reviewing tribunal must consider
each such claim against the background of the case as a whole,
paying particular weight to factors such as the nature and number
of the errors committed; their interrelationship, if any, and
combined effect; how the district court dealt with the errors as
they arose (including the efficacy or lack of efficacy of any
remedial efforts); and the strength of the government's case.
See, e.g., Mejia-Lozano, 829 F.2d at 274 n.4. The run of the
trial may also be important; a handful of miscues, in
combination, may often pack a greater punch in a short trial than
in a much longer trial.
The cumulative error doctrine is inapposite here.
While we have uncovered a few benign bevues, e.g., the district
court's failure to grant David Sepulveda's motion to suppress
evidence of money illegally seized from him, see supra Part X(F),
and the ill-advised admission of two statements unsupported by
extrinsic evidence and, hence, ineligible for special swaddling
under Fed. R. Evid. 801(d)(2)(E), see supra Part V(B), the errors
were not portentous; they were few and far between; they
possessed no special symbiotic effect; they occurred in the
course of a two-month trial; and the government's case was very
strong. Consequently, the errors, in the aggregate, do not come
close to achieving the critical mass necessary to cast a shadow
upon the integrity of the verdict.
68
Considering the trial's length, complexity, and hard-
fought nature, the district court's handling of it evokes our
admiration. Appellants' focus on cumulative error does not
change the picture. The Constitution entitles a criminal
defendant to a fair trial, not to a mistake-free trial. See
Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986); United States
v. Polito, 856 F.2d 414, 418 (1st Cir. 1988). When all is said
and done, the proceedings here meet this measure.
XI. SENTENCING ISSUES
The sentencing issues raised in these appeals implicate
the federal sentencing guidelines.27 See David, 940 F.2d at
739 (holding that the guidelines apply to a conspiracy that
"begins before the guidelines' effective date and continues after
the effective date"). Six appellants (Rood, Wallace, Cullinane,
Arline Welch, Edward Welch, and Johnson) challenge rulings
relative to the imposition of sentence.28 To the extent that
these challenges touch upon the district court's factfinding or
its evaluative judgments in applying the guidelines to the facts
as found, appellate review is for clear error. See United States
27Since the district court sentenced appellants on various
dates in January 1992, the November 1991 version of the
sentencing guidelines applies in this case. See United States v.
Harotunian, 920 F.2d 1040, 1041-42 (1st Cir. 1990) ("Barring any
ex post facto problem, a defendant is to be punished according to
the guidelines in effect at the time of sentencing.").
Therefore, all references to the sentencing guidelines will be to
the November 1991 edition, unless otherwise specifically
indicated.
28The court below sentenced appellants to assorted prison
terms ranging from a high of almost twenty-two years (David
Sepulveda) to a low of five years.
69
v. St. Cyr, 977 F.2d 698, 701 (1st Cir. 1992). To the extent
that the challenges raise "pure" questions of law or require
interpretation of the guidelines, our review is plenary. See id.
A. General Principles.
In drug-trafficking cases under the sentencing
guidelines, sentences are largely quantity-driven. See, e.g.,
United States v. Morillo, F.3d , (1st Cir. 1993) [No.
93-1388, slip op. at 12 & n.10]; United States v. Garcia, 954
F.2d 12, 15 (1st Cir. 1992); United States v. Blanco, 888 F.2d
907, 909-11 (1st Cir. 1989); see also United States v. Bradley,
917 F.2d 601, 604 (1st Cir. 1990) (describing drug quantity as "a
key datum" for sentencing purposes). The drug quantity
attributable to a particular defendant is derived by adding
together the amounts of narcotics, actual or negotiated, bound up
in the acts "that were part of the same course of conduct or
common scheme or plan as the offense of conviction." U.S.S.G.
1B1.3(a)(2). However, in the context of jointly undertaken
criminal activity, such as a conspiracy, a defendant is not
automatically saddled with the full weight of the conspiracy's
wrongdoing; rather, a defendant is responsible for drugs he
personally handled or anticipated handling, and, under the
relevant conduct rubric, for drugs involved in additional acts
that were reasonably foreseeable by him and were committed in
furtherance of the conspiracy. See Garcia, 954 F.2d at 15;
David, 940 F.2d at 742; see also U.S.S.G. 1B1.3(a)(1), comment.
(n.1). In this regard, we have emphasized that "the measure of a
70
defendant's accountability for drug transactions in which he was
not personally involved is usually congruent with the scope of
his agreement with the other participants in the criminal
enterprise." Garcia, 954 F.2d at 16.
B. Tony Rood; William Wallace.
Appellants Rood and Wallace object to the district
court's attribution of particular drug quantities to them.
Because the same type of error infects both sentences, we discuss
them in the ensemble.
In regard to Rood and Wallace, the district court's
drug quantity calculations rested essentially on Perez's trial
testimony.29 According to Perez, Rood accompanied him on
fifteen to twenty drug-buying jaunts and Wallace accompanied him
on ten to fifteen such trips. Perez did not assign particular
amounts to particular people on particular trips. Rather, he
testified in sweeping generalities, stating that the smallest
amount he remembered having been acquired, in the eighty or so
trips he took with Sepulveda and an assortment of companions over
a two-year period (1987-1989), was four ounces (113.4 grams), and
the largest amount acquired was one kilogram (an amount purchased
more than once). In preparing the presentence investigation
report (PSI Report), the probation department adopted methods of
calculation apparently urged by the prosecution. The basic
29To be sure, there was some evidence of participation by
Rood and-or Wallace in a few other incidents. But the quantities
involved in these incidents were niggling in comparison to the
Sepulveda trips and, thus, do not affect these appeals.
71
method was to construct a double "average" covering both the
number of runs and the amount of cocaine carried. This was done
by taking the midpoint of the high and low figures and
multiplying the average number of runs by the average amount
carried. Thus, in Wallace's case, the PSI Report assumed twelve
runs (an alleged "average" of ten and fifteen) and 556 grams per
run (the rounded-off average, expressed in grams, of four ounces
and one kilogram), attributing a total of 6.68 kilograms of
cocaine to him. In Rood's case, a different probation officer
proposed a slightly more complicated (but methodologically
similar) calculation and attributed 8.3 kilograms to him. The
exact mechanics are beside the point; what matters, for our
purposes, is that, albeit somewhat more circuitously, the
ultimate attribution of a drug quantity figure to Rood, as to
Wallace, represented an assumed average number of trips
multiplied by an assumed average quantity of cocaine per trip.
The district court held separate sentencing hearings
for Rood and Wallace. Neither the prosecution nor the defendants
offered additional evidence. The court, over objection, endorsed
the probation officers' calculations, attributing 8.3 kilograms
of cocaine to Rood and 7.6 kilograms to Wallace. This yielded a
base offense level (BOL) of 32 for each man. See U.S.S.G.
2D1.1(c) (6) (Drug Quantity Table) (establishing BOL of 32 for
at least five but less than fifteen kilograms of cocaine). The
court essayed further offense-level adjustments (not now in
dispute), factored Rood's criminal history category (IV) into the
72
mix, and set his guideline sentencing range (GSR) at 135-168
months. The court sentenced Rood at the bottom of the range.
Wallace displayed a less notorious criminal history (category
II). Nonetheless, after interim adjustments not material here,
his GSR proved to be identical. Relying on United States v.
Floyd, 945 F.2d 1096, 1099 (9th Cir. 1991), and citing a lack of
adult guidance during Wallace's youth, the court departed
downward, sentencing him to ten years.30
The defense's first line of attack is to assail Perez's
testimony as utterly unreliable in view of his dubious character,
asserted contradictions, and sundry other defects. But, the
trial judge heard and saw Perez testify at trial, and credited
his testimony. Such credibility calls are grist for the trial
court's mill. See St. Cyr, 977 F.2d at 706. Consequently, we
have no basis for overturning this judgment.
Nonetheless, one swallow does not a summer make. The
critical problem with respect to these sentences lies not with
Perez's testimony but with the pyramiding of inferences based
upon it. Perez's testimony was elicited at trial, not at either
sentencing hearing, and the prosecution, primarily concerned
during trial with proving the defendants' participation in a drug
trafficking conspiracy rather than fixing the precise quantity of
drugs for which each defendant might be held responsible,
30Floyd has since been overruled, albeit on other grounds.
See United States v. Atkinson, 990 F.2d 501 (9th Cir. 1993).
However, the government has not prosecuted a cross-appeal and the
validity of the departure decision is not before us.
73
obtained a bare minimum of information. With no better
information at hand, these appellants' sentences cannot be
upheld.
For sentencing purposes, the government must prove drug
quantities by a preponderance of the evidence. See United States
v. Sklar, 920 F.2d 107, 112-13 (1st Cir. 1990); Bradley, 917 F.2d
at 605. Courts must sedulously enforce that quantum-of-proof
rule, for, under the guidelines, drug quantity has a dramatic
leveraging effect. Thus, relatively small quantitative
differences may produce markedly different periods of immurement.
This reality informs the preponderance standard, requiring that
district courts must base their findings on "reliable
information" and, where uncertainty reigns, must "err on the side
of caution." Sklar, 920 F.2d at 113 (quoting United States v.
Walton, 908 F.2d 1289, 1302 (6th Cir.), cert. denied, 498 U.S.
990 (1990)).
These tenets possess particular force on the record
before us, for we do not believe that the so-called average
figures selected by the probation officers and adopted by the
trial court have adequate support in the record. To say that the
minimum amount carried on a single trip was four ounces and that
the maximum was one kilogram provides no rational basis for
presuming that the average amount carried on a given number of
trips was the mathematical midpoint between the high and low
figures. Cf. United States v. Hewitt, 942 F.2d 1270, 1274 (8th
Cir. 1991) (condemning use of a "far reaching" averaging
74
assumptions in estimating drug quantity). Similarly, while the
distortions are mathematically less serious, the selection of a
midpoint in estimating the number of trips is also without
evidentiary support. And the two flawed findings feed on each
other; by using not one, but two, unsupported averages to arrive
at both the number of trips undertaken and the amounts of cocaine
handled in the course of each trip, the court compounded the
error of its ways. This is, after all, not a case in which a
witness testified that, in his or her estimation,"X" equalled the
average drug quantity involved in a specific number of drug
transactions. That kind of estimate from a lay witness may
itself be troublesome, but at least the witness can be cross-
examined on the figure; and this court has sometimes accepted
such estimates in the past. See, e.g., United States v.
Innamorati, 996 F.2d 456, 490 (1st Cir.), cert. denied, S.
Ct. (1993). It is also not a case where a witness has given
a range, as to amounts or as to trips, but other persuasive
evidence (e.g., documents or records) exists tending to show that
some figure within the range is supported by a preponderance of
the evidence. Here, to the contrary, the court did not cite, and
the PSI Report did not identify, any extrinsic evidence or other
circumstances making averaging peculiarly appropriate or
suggesting a basis, apart from averaging, on which the probation
officers' determinations might rest. For our part, we have
combed the record and unearthed nothing that remotely suggests
Wallace joined in transporting shipments averaging 556 grams or
75
that Rood's shipments averaged twelve to sixteen ounces. In the
face of timely objection, wholly conclusory findings such as are
now before us cannot be said to command a preponderance of the
evidence, and, therefore, cannot support an imposed sentence.
Cf., e.g., United States v. Shonubi, 998 F.2d 84, 89-90 (2d Cir.
1993) (vacating, in the absence of other evidentiary support,
district court's drug quantity finding arrived at by rote
multiplication of number of trips times quantity carried on one
such trip); United States v. Garcia, 994 F.2d 1499, 1509 (10th
Cir. 1993) (vacating defendant's sentence and holding that
averages, when used to arrive at drug quantity findings, must be
"more than a guess"). And the gap in proof is not satisfied by
showing, as the government seeks to do in its brief, that more
trips and larger amounts are consistent with the general scale of
the Sepulveda enterprise.
Let us be perfectly clear. We do not announce a per se
rule barring a court from sentencing at a point different than
the low end of a testified range. There may be other evidence in
the case, direct or circumstantial, making it more likely than
not that the low point is simply too low and that some other
point is more probably representative. Indeed, in some
situations, the estimate itself, and the contextual detail
surrounding it, may provide the needed enlightenment. In our
view, a sentencing court remains free to make judicious use of
properly constructed averages and, ultimately, to make any
finding that the record supports. See United States v. Miele,
76
989 F.2d 659, 664-65 (3d Cir. 1993) (explaining that, where there
is other evidence tending to buttress the high end of an
estimated range, the sentencing court need not restrict itself to
the range's low end); see also U.S.S.G. 6A1.3(a) (stating that
the information on which a sentence is based must possess
"sufficient indicia of reliability to support its probable
accuracy"). Here, however, the record does not justify the
district court's findings concerning the drug quantities it
attributed to Rood and Wallace. Accordingly, because drug
quantity dictated these appellants' offense levels and at least
arguably influenced their sentences, Rood and Wallace are
entitled to be resentenced.31
C. Kevin Cullinane.
After all relevant adjustments had been made, the court
below established a GSR of 121-151 months referable to appellant
Cullinane,32 and sentenced him at the range's nadir. This
determination rested in substantial part on the court's drug
31On remand, the district court is, of course, free to hear
new evidence bearing on drug quantity. For example, it may well
be that better evidence can be adduced by recalling Perez or by
calling other witnesses. Alternatively, the government has the
"low point" estimates as to both the number of trips and amounts
transported to fall back upon and it has some specific evidence
as to other transactions. To start a mini-trial on drug quantity
is surely a discouraging supplement to a lengthy trial; but too
much rides on the computations to rely upon the kind of drug
quantity calculations that the government urges in respect to
these two appellants.
32We do not dissect the interim adjustments made by the
district court en route to the GSR as Cullinane concentrates his
fire on the drug quantity finding. We follow this same pattern,
whenever applicable, in discussing other appellants' sentences.
77
quantity assessment. Cullinane challenges this assessment,
insisting that Judge Devine erred in ascribing 8.99 kilograms of
cocaine to him.
Our review of Cullinane's challenge is more
circumscribed than might appear at first blush. It is
unnecessary to address an allegedly erroneous sentencing
computation if, and to the extent that, correcting it will not
change the applicable offense level or otherwise influence the
defendant's GSR (and, ultimately, his sentence). See United
States v. Connell, 960 F.2d 191, 198 n.11 (1st Cir. 1992);
Bradley, 917 F.2d at 604; see also Williams v. United States, 112
S. Ct. 1112, 1121 (1992) (stating that an error in sentencing is
harmless, and may be disregarded, if it "did not affect the
district court's selection of the sentence imposed"). This
principle is pertinent in Cullinane's case: his BOL, and, thus,
his sentence, will remain unchanged so long as he is responsible
for an amount of cocaine between five and fifteen kilograms. See
U.S.S.G. 2D1.1(c)(6) (Drug Quantity Table). His appeal fails,
then, if there is record support for ascribing at least five
kilograms of cocaine to him.
We find this to be the case. Although the district
court relied on the testimony of a number of witnesses to
buttress the drug quantity it attributed to Cullinane, we need
not go beyond the testimony of David Chase. Chase stated that he
bought somewhere between five and eight kilograms of cocaine from
Cullinane. The district court found this testimony credible and
78
we, therefore, give it weight. At sentencing, credibility
determinations are the province of the district court. See
United States v. Brewster, 1 F.3d 51, 55 (1st Cir. 1993); St.
Cyr, 977 F.2d at 706; see also 18 U.S.C. 3742(e) (1988). That
ends the matter: the lowest of Chase's estimates affords a
sufficient predicate for the disputed sentence.
Cullinane attempts to confess and avoid. Even if
Chase's testimony is reliable, he ruminates, the conduct Chase
describes is irrelevant to the charged conspiracy. This maneuver
takes appellant down a blind alley. Within broad limits,
reviewing courts must defer to a sentencing judge's determination
of relevant conduct. Such findings are almost invariably
factbound, and we will set them aside only if they are shown to
be clearly erroneous. See Garcia, 954 F.2d at 16; Bradley, 917
F.2d at 605. In addition, the argument for deference peaks when
the sentencing judge has presided over a lengthy trial and is
steeped in the facts of the case. See, e.g., United States v.
Shattuck, 961 F.2d 1012, 1014-15 (1st Cir. 1992); United States
v. Zuleta-Alvarez, 922 F.2d 33, 37 (1st Cir. 1990), cert. denied,
111 S. Ct. 2039 (1991).
These salutary precepts are dispositive here. Full
deference is due and Chase's testimony, though circumstantial,
touched upon, and could logically be found to involve, matters
coming within the scope of the conspiracy. Accordingly, the
lower court did not commit clear error in concluding that
Cullinane's transactions with Chase comprised relevant conduct
79
for sentencing purposes.
D. Arline Welch.
The district court attributed 1924 grams of cocaine to
Arline Welch and imposed the mandatory minimum incarcerative
sentence under 21 U.S.C. 841(b)(1)(B), viz., five years. Welch
contests only the district court's drug quantity assessment.
Because the mandatory minimum applies so long as quantities of
cocaine totalling 500 grams or more are involved in the offense
of conviction, see id., we need only inquire whether that much
contraband can fairly be attributed to her.
We answer this query affirmatively. Perez testified
that Arline Welch accompanied him on three journeys to Lawrence
and that 10 ounces of cocaine were acquired on each trip. The
district court credited Perez's testimony, attributing nearly 900
grams of cocaine to Arline Welch on this account. We decline
appellant's invitation to second-guess this finding.
E. Edward Welch.
The district court attributed 7.72 kilograms of cocaine
to Edward Welch and, after various interim adjustments, sentenced
him to 135 months in prison (the low end of the GSR). Welch
challenges only the drug quantity assessment.
The court's attribution of cocaine to Edward Welch
rests upon a cornucopia of testimony. It would serve no useful
purpose to survey it all. Upon careful review of the record, we
can see, at a minimum, no clear error in the court's decision to
accept the testimony of Coriaty and Milne testimony that was,
80
in itself, sufficient to support the attribution of over 5.3
kilograms to this defendant.33 At this point, Welch's ground
of appeal collapses, for his sentence would be the same if the
court had found 5.3 kilograms rather than 7.72 kilograms. See
U.S.S.G. 2D1.1(c)(6) (Drug Quantity Table).
F. Cheryl Johnson.
The lower court attributed 1.2 kilograms of cocaine to
Cheryl Johnson and imposed the mandatory minimum five-year
sentence. See 21 U.S.C. 841(b)(1)(B). Johnson disputes the
drug quantity finding. Here, again, the trigger amount is 500
grams of cocaine. See id.
The district court determined, inter alia, that Johnson
sold 1/16th of an ounce of cocaine to Santos on at least 100
occasions; and that she sold 3/10s of an ounce to officer Malone
on another occasion. The court further found that $7,115 seized
from Johnson's house constituted the proceeds of drug sales and,
for sentencing purposes, equated this cash stash with 5.08 ounces
of cocaine. Finally, the court credited Perez's testimony that
Johnson participated in at least "a couple" of drug-buying
expeditions. Erring on the side of caution, the court could
warrantably have found Johnson responsible for two trips,
33At the risk of carrying coal to Newcastle, we note that
Edward Welch was a fellow traveller on, and a co-venturer in,
several drug-buying expeditions described supra Part XI(D).
Thus, the drug quantities associated with those jaunts are also
attributable to him.
81
involving four ounces per trip.34 In the aggregate, the
determinations listed above support the attribution of 556 grams
of cocaine to Johnson more than the minimum required to
underbrace the sentence she received.
Johnson argues against these serial findings on three
grounds. Her first attack a broadside blast aimed at the total
quantity of cocaine attributed to her deserves little comment.
We simply restate the obvious: the district court's credibility
calls are beyond reproach and, therefore, its bottom-line
conclusion is not clearly erroneous.
Johnson's second fusillade is aimed at the cash
equivalency finding. In drawing a head on the sentencing court's
decision to translate dollars into drugs, Johnson is shooting
blanks. The government presented abundant evidence of Johnson's
narcotics trafficking, see supra Part II(D), and the volume of
business transacted justified the court's illation that the sums
seized were connected to her drug dealings. When it is
reasonably probable that confiscated cash represents either drug
profits or money dedicated to the upcoming purchase of
contraband, a sentencing court may convert the cash into
equivalent amounts of narcotics for "relevant conduct" purposes.
See U.S.S.G. 2D1.4, comment. (n.2) (authorizing district courts
to use price as a means of approximating drug quantity); see also
34The court actually found that Johnson's two trips involved
16 ounces per trip. But, this finding utilized an impermissible
process of rote averaging. See supra Part XI(B). Hence, we use
the low end of the range of available estimates for purposes of
appellate review.
82
United States v. Jackson, 3 F.3d 506, 510 (1st Cir. 1993); United
States v. Figueroa, 976 F.2d 1446, 1460-61 (1st Cir. 1992), cert.
denied, 113 S. Ct. 1346 (1993); United States v. Gerante, 891
F.2d 364, 369 (1st Cir. 1989). So it is here.
Johnson's third salvo also flies wide of the target.
She insists that the cash did not belong to her and, thus, cannot
figure in her sentence. But as we read the record, the
circumstantial evidence supports a finding of proprietary
interest. And, moreover, even if we were to give credence to
Johnson's protest regarding ownership, the cash equivalency
evidence could be used against her as long as the drug money
constituted part of the same common scheme or plan and met the
foreseeability requirement for relevant conduct under the
guidelines. See Garcia, 954 F.2d at 15; Blanco, 888 F.2d at 910-
11; see also supra Part XI(A) (discussing relevant conduct in
conspiracy cases). The evidence here could reasonably be
interpreted as placing the cash stash within the orbit of the
conspiracy. For these reasons, we detect no clear error in the
lower court's conclusion that the money ought properly to be
treated as a proxy for cocaine and counted against this
appellant.
Johnson has two final items in her asseverational
array. She asserts that the court should have reduced her BOL by
two levels since she was merely a minor participant in the drug
distribution scheme, see U.S.S.G. 3B1.2(b), and that the court
should have departed downward due to her family circumstances.
83
Neither assertion has much firepower.
As to the former plaint, a role-in-the-offense
reduction, even if granted, would have no effect on appellant's
sentence due to the overriding force of the mandatory minimum
prescribed by 21 U.S.C. 841(b)(1)(B). See U.S.S.G. 5G1.1(b)
(providing that the statutorily required minimum sentence shall
be the guideline sentence when it exceeds the top of the
applicable GSR). The assignment of error is, therefore, moot.
As to Johnson's last point, it is settled in this
circuit that a sentencing judge's informed decision not to
depart, regardless of direction, is a non-appealable event. See
United States v. Tardiff, 969 F.2d 1283, 1290 (1st Cir. 1992);
United States v. Hilton, 946 F.2d 955, 957 (1st Cir. 1991).
There is nothing about appellant's case that extricates it from
the vice-like grip of this jurisdictional rule. In any event,
appellant failed to seek a departure below and, hence, cannot
broach the matter for the first time on appeal. See Ortiz, 966
F.2d at 717 (reiterating rule that appellate court will not
address sentencing arguments that were not seasonably advanced
below); United States v. Dietz, 950 F.2d 50, 55 (1st Cir. 1991)
(similar).
XII. CONCLUSION
We need go no further. After considering all the
issues raised by appellants, including some issues not
specifically discussed herein, we have unearthed no vestige of
reversible error. Appellants' convictions and sentences are
84
therefore lawful, save only for the sentences imposed on Rood and
Wallace. Accordingly, we affirm the convictions of those two
appellants, vacate their sentences, and remand for resentencing.
At the same time, we affirm the convictions and sentences of the
other eight appellants. We stay issuance of mandate in all the
appeals, pending publication of the two additional (and closely
related) opinions described supra note 2.
The convictions and sentences of appellants David
Sepulveda, Edgar Sepulveda, Edward W. Welch, Jr., Arline S.
Welch, Kevin Cullinane, Cheryl T. Johnson, Richard F. Labrie, and
Ernest F. Langlois are affirmed in all respects. The convictions
of appellants Tony Rood and William D. Wallace are affirmed,
their sentences are vacated, and, as to those appellants only,
the case is remanded for resentencing. The issuance of mandate
is stayed pending further order of the court.
85
United States v. Sepulveda
Court: Court of Appeals for the First Circuit
Date filed: 1993-12-20
Citations: 15 F.3d 1161
Copy CitationsCombined Opinion