United States v. Tuesta Toro

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-2182

UNITED STATES OF AMERICA,

Plaintiff, Appellee,

v.

HECTOR H. TUESTA-TORO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Hector M. Laffitte, U.S. District Judge]

Selya, Cyr and Boudin,

Circuit Judges.

Kevin G. Little for appellant.

Jose A. Quiles Espinosa, Senior Litigation Counsel, with whom

Guillermo Gil, United States Attorney, and Warren Vazquez, Assistant

United States Attorney, were on brief for appellee.

July 25, 1994

CYR, Circuit Judge. Following a three-day trial, a
CYR, Circuit Judge.

jury returned guilty verdicts on four drug-related charges

against defendant-appellant Hector H. Tuesta Toro ("Tuesta"), who

was sentenced to serve 128 months in prison, and this appeal

ensued. Finding no reversible error, we affirm.

I

FACTS

We set out the salient facts in the light most favor-

able to the verdicts. United States v. Tejeda, 974 F.2d 210, 212

(1st Cir. 1992). On September 2, 1992, after receiving informa-

tion from a confidential informant ("CI") that Tuesta and code-

fendant Carlos Martinez Diaz ("Martinez") were distributing large

quantities of cocaine in the San Juan metropolitan area, the

United States Drug Enforcement Administration ("DEA") recorded

telephone conversations during which Martinez agreed to sell the

CI five kilograms of cocaine at $16,500 per kilogram and identi-

fied Tuesta as his source. Martinez in turn spoke with Tuesta by

cellular phone in order to establish the price and quantity of

the cocaine to be sold to the CI and the site of the drug trans-

action, but then lost phone contact with Tuesta.

The next day Martinez advised the CI by phone that a

one-kilogram transaction (rather than the five-kilogram transac-

tion discussed the day before) would take place that afternoon,

but that Tuesta did not wish to be seen by the buyer. Martinez

reestablished telephone contact with Tuesta at 2:40 in the

2

afternoon. En route to the scene of the transaction, Martinez

noted that Tuesta was carrying a gun and more than one kilogram

of cocaine. At Tuesta's instruction, Martinez parked their

vehicle so that Tuesta could witness the drug deal without being

observed. Martinez then exited the car and delivered the cocaine

to the CI, who was accompanied by an undercover DEA agent.

Shortly thereafter, Martinez and Tuesta were arrested

and charged with possessing cocaine, with intent to distribute,

see 21 U.S.C. 841(a)(1), 18 U.S.C. 2; carrying a firearm

during and in relation to a drug trafficking offense, see id.

942(c)(1), 2; and with two counts of using a communication

facility to facilitate a drug trafficking offense, see 21 U.S.C.

843(b), 18 U.S.C. 2. Martinez eventually entered into a plea

agreement with the government and testified against Tuesta at

trial. Following Tuesta's conviction on all counts, he was

sentenced to 128 months' imprisonment.

II

DISCUSSION

A. Evidence Rule 404(b)

Prior to trial, Tuesta filed an omnibus motion to

compel discovery which included the following request:

[a]ll confessions, admissions and statements

to the United States Attorney, or any law
enforcement agent, made by any other person,

whether indicted or not, that in any way

exculpate, inculpate or refer to the defen-

dant, whether or not such confessions, admis-

3

sions and statements have been reduced to

writing.

(Emphasis added.) The motion made no mention of Rule 404(b) or

"other wrongful acts" evidence.

The government responded that it intended to pursue an

"open file" discovery policy and that only government agents

would be called to testify against Tuesta. Following the govern-

ment's response, however, Martinez entered into a plea agreement

which provided that he would testify against Tuesta. Except as

discussed below, Tuesta did not claim surprise.

At trial, the defense objected when the government

asked Martinez how he knew Tuesta. The government responded that

Martinez would testify to prior drug dealings with Tuesta.

Tuesta objected on the ground that he had not been afforded

pretrial notification of the government's intention to use Rule

404(b) evidence. The court admitted the evidence for the limited

purpose of refuting Tuesta's "mere presence" defense, see United

States v. Hernandez, 995 F.2d 307, 314 (1st Cir.), cert. denied,

114 S. Ct. 407 (1993), after ruling that its probative value was

not substantially outweighed by the danger of unfair prejudice,

see Fed. R. Evid. 403. The court, acting sua sponte, gave the

jury a contemporaneous limiting instruction.

1. The Notification Requirement of Rule 404(b)

Tuesta first contends that the "other wrongful acts"

evidence introduced through codefendant Martinez should have been

excluded because the government failed to provide the pretrial

4

notification required by Evidence Rule 404(b) in response to

Tuesta's omnibus motion for discovery. The government maintains

that Tuesta made no cognizable Rule 404(b) request prior to

trial.

The question presented is one of first impression: how

particular must a pretrial discovery request be in order to

trigger the government's responsibility to disclose Rule 404(b)

evidence as a precondition to its use at trial? Rule 404(b), as

amended in 1991, provides in relevant part:

Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a
person in order to show action in conformity
therewith. It may, however, be admissible
for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, know-
ledge, identity or absence of mistake or
accident, provided that upon request by the

accused, the prosecution in a criminal case

shall provide reasonable notice in advance of

trial . . . of the general nature of any such

evidence it intends to introduce at trial.

Fed. R. Evid. 404(b) (emphasis added). As the rule speaks only

of a "request by the accused" and the duty of the prosecution to

provide reasonable pretrial notification "of the general nature

of any such evidence it intends to introduce at trial," id., we

turn elsewhere for guidance.

The advisory committee's notes to the 1991 amendment

define the responsibilities of the respective parties in request-

ing and affording pretrial notification under Rule 404(b): "The

amendment to Rule 404(b) . . . . expects that counsel for . . .

the defense . . . will submit the necessary request . . . in a

reasonable and timely manner." Fed. R. Evid. 404(b) advisory

5

committee's notes (1991 amendment) (emphasis added). The adviso-

ry committee note simply confirms the requirement implicit in the

rule itself that the defense must submit, "in a reasonable and

timely manner," its request for pretrial notification of the

general nature of any evidence of other crimes, wrongs, or acts

the government intends to introduce at trial for purposes of

proving "motive, intent, preparation, plan, knowledge, identity

or absence of mistake or accident," Fed. R. Evid. 404(b). We

think it beyond question, therefore, that a "reasonable" request

for notification, at a minimum, must be sufficiently clear and

particular, in an objective sense, fairly to alert the prosecu-

tion that the defense is requesting pretrial notification of the

general nature of any Rule 404(b) evidence the prosecution

intends to introduce.

An overbroad pretrial request, like the present for

"confessions, admissions and statements . . . that in any way

exculpate, inculpate or refer to the defendant" is insuffi-

ciently specific at the very least, if not misleading. Cf.

United States v. Carrasquillo-Plaza, 873 F.2d at 10, 12 (1st Cir.

1989) (noting that overbroad discovery requests, absent a specif-

ic showing of materiality, do not afford the prosecution proper

notice in analogous Rule 16 context); United States v. Hemmer,

729 F.2d 10, 14-15 (1st Cir.) (same), cert. denied, 467 U.S. 1218

(1984). The omnibus motion submitted by Tuesta made no discern-

ible reference to anything resembling "other wrongful acts"

evidence nor did it request mere notification of the general

6

nature of any such evidence. Rather, it demanded outright

pretrial disclosure of statements in any form, referring to the

defendant in any way, without regard to their admissibility or

the government's intention to introduce them.1 See Fed. R.

Evid. 404(b); cf., United States v. Williams, 792 F. Supp. 1120,
;

1133 (S.D. Ind. 1992) (notification required in response to

detailed request reciting text of Rule 404(b)); United States v.

Alex, 791 F. Supp. 723, 728 (N.D. Ill. 1992) (similar; request

specifically referencing Rule 404(b)).

Accordingly, at a minimum the defense must present a

timely request sufficiently clear and particular, in an objective

sense, to fairly alert the prosecution that the defense is

invoking its specific right to pretrial notification of the

general nature of all Rule 404(b) evidence the prosecution

intends to introduce at trial. The rule we describe will bring

pretrial practice under Rule 404(b) in line with circuit prece-

dent governing the prosecution's duty to provide discovery

material under Federal Rule of Criminal Procedure 16. Cf. Fed.

R. Evid. 404(b) advisory committee's notes (1991 amendment)

(noting that amended rule "places Rule 404(b) in the mainstream

with notice and disclosure provisions in other rules of evidence"

but was not intended to impose on government a greater disclosure

1As a further condition precedent to the government's duty,
we note that Rule 404(b) seemingly requires pretrial notification
only of "other wrongful acts" evidence which the government
presently intends, as of the time the government responds to the

request, to introduce at trial. The present appeal neither

requires that we determine the point nor consider its ramifica-
tions.

7

burden than "currently . . . required . . . under [Fed. R. Crim.

P.] 16") (emphasis added). See also supra note 1.

8

2. Admission of 404(b) Evidence at Trial

Next, Tuesta contends that it was reversible error to

admit the Martinez testimony to rebut Tuesta's "mere presence"

defense. These evidentiary rulings normally are reviewed for

abuse of discretion. United States v. Figueroa, 976 F.2d 1446,

1454 (1st Cir. 1992), cert. denied, 113 S. Ct. 1346 (1993). As

Tuesta made no contemporaneous objection, however, we review for

"plain error," id. at 1453, and will reverse only if the error

"seriously affect[ed] the fundamental fairness and basic integri-

ty of the proceedings," United States v. Carty, 993 F.2d 1005,

1012 n.9 (1st Cir. 1993).

A Rule 404(b) proffer must undergo a two-step inquiry:

First, under the "absolute bar" of Rule
404(b), the evidence is inadmissible if rele-
vant solely to show the defendant's character
or propensity for criminal conduct; it must
have some "special relevance" to a material
issue such as motive, opportunity, intent,
preparation, plan or knowledge. Second,
under Rule 403, the trial court must satisfy
itself that the probative value of the evi-
dence is not substantially outweighed by the
danger of unfair prejudice, confusion or
undue delay.

Id. at 1011 (citations omitted). The district court admitted the

Martinez testimony relating to prior drug deals with Tuesta for

the limited purpose of refuting Tuesta's "mere presence" defense

that he was at the drug scene by "mistake." Fed. R. Evid. 404(b)

(evidence admissible to prove, inter alia, knowledge, intent,

absence of mistake); Carty, 993 F.2d at 1011 (prior drug-dealing

evidence admitted where defendant raised "mere presence" de-

fense); United States v. Agudelo, 988 F.2d 285, 287 (1st Cir.

9

1993) (same). Further, after the district court ruled that the

probative value of the evidence outweighed any "danger of unfair

prejudice," Fed. R. Evid. 403, it minimized the potential for

prejudice with a contemporaneous limiting instruction, which it

reiterated in the final charge. See Tejeda, 974 F.2d at 214. We

discern no error, plain or otherwise.

B. Use of Communication Facility to Effect Drug Crime

Tuesta challenges the guilty verdicts on counts three

and four, on the grounds that the district court misinterpreted

18 U.S.C. 2 and that there was insufficient evidence that he

aided and abetted Martinez in the use of a communication facility

to effect the cocaine transaction, see 21 U.S.C. 843(b). We

disagree.

Section 843(b) prohibits use of a communication facili-

ty to cause or facilitate a felonious drug offense. See United

States v. Cordero, 668 F.2d 32, 43 (1st Cir. 1981). Tuesta's

challenge to the sufficiency of the evidence requires that "[w]e

view the evidence in the light most favorable to the verdict, in

order to determine whether a rational trier of fact could have

found guilt beyond a reasonable doubt. All reasonable inferences

are drawn in favor of the verdict and any credibility determina-

tion must be compatible with the judgment of conviction." Tejeda,

974 F.2d at 212 (citations omitted).

The jury was entitled to credit Martinez's testimony

that he telephoned Tuesta, on September 2 and 3, 1992, to arrange

the time and place at which the cocaine transaction would occur,

10

as well as the price and quantity of cocaine. No more was

required. Thus, even if Tuesta had played no part in the two

telephone conversations between Martinez and the CI, the jury

rationally could have inferred, from the two telephone conversa-

tions between Martinez and Tuesta, that Tuesta knowingly used a

communication facility to effect the cocaine deal.2

C. "Background" Hearsay

A DEA agent testified that during a debriefing session

the CI stated that Martinez acted in behalf of Tuesta in setting

up cocaine deals. Tuesta contends that admission of this hearsay

testimony, over timely objection, was error. We agree.

As the government conceded at oral argument, the

agent's testimony purported to relate an out-of-court statement

by the CI offered for the sole purpose of proving the truth of

the matter asserted (i.e., Tuesta's role in the instant offens-

es). See Fed. R. Evid. 801; cf. Figueroa, 976 F.2d at 1458

(noting that so-called "background" hearsay is not hearsay at all

unless introduced to prove the truth of the matter asserted).

Thus, its admission constituted error. We conclude, however,

that the error was harmless. See id.

First, the testimony was cumulative of Martinez's

testimony on the same matter. Further, independent admissible

2Since the indictment, as well as the jury instruction on
the section 843(b) charges, encompassed Tuesta's conduct as a
principal and as an aider and abettor, we need not address his
contention that he could not be convicted under 18 U.S.C. 2
because there was no evidence that he instructed Martinez to use
a communication device to arrange the cocaine sale.

11

evidence confirmed that Tuesta determined the conditions of sale,

supplied the cocaine, and witnessed the cocaine exchange from

nearby while in possession of a loaded firearm. Thus, "we can

say 'with fair assurance, after pondering all that happened

without stripping the erroneous action from the whole, that the

[jurors'] judgment was not substantially swayed by the error.'"

Id. at 1459 (quoting Kotteakos v. United States, 328 U.S. 750,

765 (1946) ("harmless error" standard)).

D. Ineffective Assistance of Counsel

Next, Tuesta attempts to present an "ineffective assis-

tance" claim on direct appeal. As a general rule, we address

such Sixth Amendment claims on direct appeal only if "the criti-

cal facts are not in dispute and a sufficiently developed record

exists." United States v. Jadusingh, 12 F.3d 1162, 1169 (1st Cir.

1994) (citing United States v. Daniels, 3 F.3d 25, 26-27 (1st

Cir. 1993)). Ordinarily, a collateral proceeding under 28 U.S.C.

2255 is the proper forum for fact-bound ineffective assistance

claims. See Jadusingh, 12 F.3d at 1170. Tuesta's contention

that trial counsel inexplicably failed to discover the identity

of the CI was not raised in the district court and is sufficient-

ly fact-bound to preclude effective review on the present record.

12

E. Prosecutorial Misconduct

Tuesta contends that the prosecution improperly vouched

for Martinez's testimony during its closing argument.3 In the

absence of a contemporaneous objection, we review allegations of

prosecutorial misconduct for plain error, and will overturn a

jury verdict only "if the government's closing argument 'so

poisoned the well' that it is likely that the verdict was affect-

ed." United States v. Smith, 982 F.2d 681, 682 (1st Cir. 1993)

(citing United States v. Mejia-Lozano, 829 F.2d 268, 274 (1st

Cir. 1987)). Any vouching which may have occurred was so faint

as to be virtually indiscernible even to the trained ear. We are

confident that there is no likelihood that the verdicts were

tainted by the alleged prosecutorial misconduct. Id.

F. Cumulative Error

As most assignments of error were baseless, we must

also reject Tuesta's final contention that the conviction was

tainted by cumulative error. See United States v. Barnett, 989

F.2d 546, 560 (1st Cir.) ("The Constitution entitles a criminal

defendant to a fair trial, not a perfect one.") (citing Delaware

3Tuesta argues that the prosecutor improperly vouched for
Martinez's credibility by stating that "when a person repents and
wants to cooperate, we need to present the testimony to the jury
so that the jury has the facts at hand." Although he states that
there was no evidence that Martinez approached the government and
offered to testify, Tuesta concedes that evidence was presented
that the plea agreement did not require Martinez to testify.
Second, Tuesta contends that the prosecutor's reference to "the
facts at hand" placed the government's prestige behind Martinez.

13

v. Van Arsdall, 475 U.S. 673, 681 (1986)), cert. denied, 114 S.

Ct. 148 (1993).

G. Sentencing Error
G. Sentencing Error

1. Acceptance of Responsibility

Tuesta argues that the district court improperly denied

a reduction for acceptance of responsibility, see U.S.S.G.

3E1.1, without affording him an adequate opportunity to evince

remorse.

Tuesta distorts the record. He continued to assert his

innocence during a post-conviction interview with the probation

officer. At sentencing, the district court twice invited him to

accept responsibility, by pointing out that the sentencing

hearing would be his last opportunity to do so.4 Nonetheless,

though Tuesta asked the court for leniency, he said nothing which

might be taken to indicate remorse. Thus, he squandered several

opportunities to verbalize acceptance of responsibility, leaving

the district court little choice but to adopt a presentence

report recommendation that no reduction be allowed. There was no

error.

2. Sentencing Enhancement for Managerial Role

Finally, Tuesta challenges the two-level enhancement

imposed for his managerial role in the offense, see U.S.S.G.

4Prior to Tuesta's allocution, the court stated: "I haven't
heard any acceptance of responsibility." Moments later, the
court said: "Well, you can say some things that may be able to
help you; but if you don't say them . . . that's up to you."

14

3B1.1 (1993), which the district court premised in part upon the

unusual purity of the cocaine supplied by Tuesta. A defendant's

role in the offense must be established by a preponderance of the

evidence, see United States v. Sostre, 967 F.2d 728, 731 (1st

Cir. 1992), and the sentencing court's factual findings are

reviewed only for clear error, Jadusingh, 12 F.3d at 1169.

The exercise of decision-making authority, the degree

of participation in planning or organizing the offense, and the

degree of control and authority the defendant exercised over

others are among the factors to be considered in determining

managerial role. See U.S.S.G. 3B1.1, comment (n.4). The record

is replete with evidence that Martinez acted at the direction of

Tuesta in setting the time and place of the drug transaction, and

the price and quantity of the cocaine. United States v. Cronin,

990 F.2d 663, 665 (1st Cir. 1993) (noting that such evidence

supports finding of managerial role.) Additionally, the district

court properly relied on the unusual purity of the cocaine (98%)

Tuesta supplied to Martinez, as a further ground for inferring

that Tuesta performed a managerial role. See United States v.

Iguaran-Palmar, 926 F.2d 7, 9 (1st Cir. 1991). There was no

error.

The judgment is affirmed.
affirmed

15