September 14, 1995
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
No. 94-1858
UNITED STATES OF AMERICA,
Appellee,
v.
GERALD RODRIGUEZ, a/k/a/ JOSE RODRIGUEZ,
Defendant, Appellant.
ERRATA SHEET
The opinion of this Court issued on August 28, 1995 is corrected
as follows:
On page 12, second paragraph, line 5, substitute "defaults" for
"defalcates."
United States Court of Appeals
For the First Circuit
No. 94-1858
UNITED STATES OF AMERICA,
Appellee,
v.
GERALDO RODRIGUEZ, a/k/a JOSE RODRIGUEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
[Hon. Francis J. Boyle, Senior U.S. District Judge]
Before
Selya, Cyr and Lynch, Circuit Judges.
Andrew Grosso for appellant.
Mervyn Hamburg, Senior Counsel, United States Department of
Justice, with whom Sheldon Whitehouse, United States Attorney, was on
brief for the United States.
August 28, 1995
LYNCH, Circuit Judge. Geraldo Rodriguez seeks to
LYNCH, Circuit Judge.
set aside his conviction for conspiracy to distribute heroin,
contending that he was not brought to trial within the 70
days prescribed by the Speedy Trial Act ("STA"), 18 U.S.C.
3161 et seq., and that two evidentiary rulings at trial
were in error. Rodriguez also appeals his sentence,
contending that the district court engaged in impermissible
"double counting" when it departed upward based on the purity
of the heroin he was convicted of conspiring to distribute
while simultaneously enhancing his sentence for his
leadership role. The conviction and sentence are affirmed.
I. Background
Geraldo "Jose" Rodriguez and his co-defendant
Juvenal Grajales arranged the sale of a total of 97.65 grams
of very pure heroin (87% to 96% pure) to a DEA confidential
informant named Miguel Teixeira on four occasions in February
and April, 1993. Teixeira recorded his conversations with
Rodriguez about the particulars of these drug deals at a
number of pre-arranged meetings. At some of the meetings,
Rodriguez was accompanied by Grajales or other associates; at
others, Rodriguez sent associates to assist with or
consummate the transactions.
Rodriguez and Grajales were arrested and indicted
for distribution of heroin, distribution of cocaine, and
conspiracy to possess heroin and cocaine with intent to
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distribute. Following a period of pretrial motion practice
and discovery (set forth in the Appendix that follows this
opinion), trial was scheduled for September 23, 1993. On
September 22, 1993, the district court accepted a guilty plea
from Grajales. On September 23, a jury was empaneled (but
not sworn) in Rodriguez's case and trial was set to begin on
September 30, 1993. On that day, before the jury was sworn,
Rodriguez disputed the adequacy of the government s
disclosures concerning the background of its key witness
Teixeira, the DEA informant. Rodriguez demanded that he be
provided with additional information. The district court,
accommodating Rodriguez s position, dismissed the jury and
adjourned the trial pending resolution of the discovery
issue.
Some two weeks later, on October 19, 1993,
Rodriguez's trial counsel filed a motion to withdraw from the
case. The motion was granted after hearing, and the court
allowed Rodriguez time to obtain new counsel. In November,
Rodriguez's newly retained counsel Barry Wilson filed an
appearance and, later, a motion for admission pro hac vice in
the District of Rhode Island. This proved problematic.
Based on a contempt order that had been issued against Wilson
in an unrelated matter before Judge Pettine, the government
opposed the pro hac vice motion. A hearing was not held on
the motion until February 22, 1994. The motion was allowed.
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That same day Rodriguez filed a motion to dismiss
the indictment on grounds that he had not been brought to
trial within 70 days as required by the STA. That motion was
later denied in a bench ruling.
Trial commenced on May 12, 1994. At the close of
the government's case, the district court granted Rodriguez's
motion for judgment of acquittal with respect to Count 2 of
the indictment, which charged conspiracy to distribute
cocaine. At the conclusion of the five-day trial, the jury
returned a guilty verdict on Count 1 (conspiracy to
distribute heroin) but acquitted Rodriguez on all other
counts (distribution of heroin; distribution of cocaine).
At sentencing, after concluding that both a two-
level leadership role enhancement and an additional two-level
drug-purity upward departure were warranted, the district
court imposed a sentence of 121 months imprisonment to be
followed by 5 years supervised release, and a $50 special
assessment.
II. Speedy Trial Act Claim
Rodriguez's STA claim raises questions of whether
certain time consumed in connection with pretrial motions and
jury empanelment is excludable from the requisite STA
calculations. Factual findings underlying a STA
determination are reviewed for clear error, while legal
rulings are reviewed de novo. See United States v. Storm, 36
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F.3d 1289, 1292 (5th Cir. 1994), cert. denied, 115 S. Ct.
1798 (1995); United States v. Henderson, 746 F.2d 619, 622
(9th Cir. 1984), aff'd, 476 U.S. 321 (1986).
The STA requires that a defendant be tried within
70 days of the filing of the indictment or the defendant's
first appearance before a judicial officer, whichever occurs
later. See Henderson v. United States, 476 U.S. 321, 322
(1986). The remedy for violation of the 70-day requirement
is dismissal of the indictment either with or without
prejudice, depending on consideration of several statutory
factors. See 18 U.S.C. 3162(a)(2); United States v.
Ramirez, 973 F.2d 36, 39 (1st Cir. 1992). Not every day that
passes between indictment or appearance and trial, however,
counts toward the 70-day limit. The Act itself enumerates
various circumstances that can suspend the running of the
time. See 18 U.S.C. 3161(h). The question presented is
whether the total amount of non-excludable time between
indictment or judicial appearance and the filing of the
pretrial motion suggesting a STA violation exceeded the
statutory limit of 70 days.
The metaphor of a running clock is often used in
STA cases. The metaphorical clock here started running on
June 4, 1993, the day after the indictment, and stopped on
February 22, 1994, the day Rodriguez filed his speedy trial
motion, which was not renewed before trial. See United
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States v. Connor, 926 F.2d 81, 84 (1st Cir. 1991) ("[A]
motion for dismissal [under the STA] is effective only for
periods of time which antedate the filing of the motion.
Subsequent periods of delay, whether includable or
excludable, are inconsequential.").
There is no dispute that three days devoted to
miscellaneous proceedings concerning Rodriguez are
excludable.* The battle lines are thus drawn around the
remaining period of 260 days, and the question is whether at
least 190 of those days were excludable. The answer is yes.
Much of Rodriguez's attack focuses on time
associated with pretrial motions. The ground rules are set
by the statute and Supreme Court case law. Section
3161(h)(1) of the Speedy Trial Act provides for the exclusion
of any
(F) delay resulting from any
pretrial motion, from the filing of the
motion through the conclusion of the
hearing on, or other prompt disposition
of, such motion; [and]
. . .
(J) delay reasonably attributable to
any period, not to exceed thirty days,
during which any proceeding concerning
the defendant is actually under
advisement by the court.
18 U.S.C. 3161(h)(1)(F), (J).
*The parties agree that the following days are excludable under 18
U.S.C. 3161(h)(1): the day of arraignment (June 14, 1993), the day
on which Rodriguez's co-defendant Grajales submitted a guilty plea
(September 22, 1993); and the day on which the first jury was
empaneled (September 23, 1993).
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There are significant differences in the
excludability of delays attributable to motions afforded
hearings and those decided without hearing. Such differences
result from the interplay between subsections (F) and (J).
In Henderson v. United States, 476 U.S. 321 (1986), the
Supreme Court held that under subsection (F), the entire
period beginning from the filing of a pretrial motion to the
conclusion of the hearing on that motion is excludable time.
See id. at 328-31; see also United States v. McAfee, 808 F.2d
862, 864 (1st Cir. 1986). Once the hearing on the motion is
concluded, subsection (J) limits the amount of excludable
time while the motion is "under advisement" to 30 days. See
Henderson, 476 U.S. at 328-329; United States v. Ortiz, 23
F.3d 21, 27 & n.6 (1st Cir. 1994); United States v. Wilson,
835 F.2d 1440, 1442 (D.C. Cir. 1987).
When there is no hearing, a motion is deemed to be
taken under advisement when "the court receives all the
papers it reasonably expects . . . ." Henderson, 476 U.S. at
329; see also United States v. Johnson, 29 F.3d 940, 944 (5th
Cir. 1994). Thus, for a motion that does not receive a
hearing, subsections (F) and (J) in conjunction allow for the
exclusion of all of the time from the filing of the motion to
the time that the court receives all reasonably expected
papers, plus no more than an additional 30 days of advisement
time. See Johnson, 29 F.3d at 944; see also Wilson, 835 F.2d
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at 1442 ("[Sections 3161(h)(1)(F) and (J)] taken together
thus exclude the time between filing of a motion and the date
it is taken under advisement by the court, plus the time
during which the court holds the motion under advisement (up
to 30 days).").
The chronology against which the STA clock runs and
stops according to these rules in this case is set forth in
the Appendix. Pursuant to Henderson and 3161(h)(1)(F) &
(J), the entire 75-day period from the December 10, 1993
filing of the pro hac vice motion of his new counsel until
the hearing on that motion (February 22, 1994) is
excludable.** The date on which the motion was filed and
the date on which it was heard are also excludable days.
United States v. Papaleo, 853 F.2d 16, 21 (1st Cir. 1988).
**There is some confusion in the briefs and in the record as to when
Barry Wilson's pro hac vice motion actually was filed. For purposes
of this appeal, we assume the motion was filed on December 10, 1993,
the date indicated on the district court docket sheet. It bears
comment, however, that more than 45 days passed between the time that
the district court granted the motion of Rodriguez's former counsel to
withdraw from the case and the filing of the pro hac vice motion
even though the court had expressly ordered Rodriguez to obtain new
counsel within 10 days of the withdrawal. Although new counsel
purported to file an "appearance" on November 4, 1993, that appearance
was plainly in violation of the district court's local rules. See
D.R.I. Loc. R. 5(c) (permitting appearance of non-member of bar only
on admission pro hac vice). Conceivably, either the November 4
"appearance" by Wilson or the December 1 appearance by local counsel
on behalf of Wilson could be treated functionally as the date on which
the pro hac vice motion was filed. In any case, there is substantial
reason to doubt whether the STA clock was running during the 35 days
that Rodriguez, in violation of the court's order, delayed in
retaining appropriate counsel of record. For purposes of this appeal,
however, we put that issue to one side.
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Similarly, the bail motion filed on October 13, 1993 (which
did not receive a hearing nor, apparently, an express ruling)
resulted in at least an additional 30 days of excludable
time. See Ortiz, 23 F.3d at 27 n.6 (pretrial motion to which
no opposition was filed, which did not receive hearing, and
was never ruled upon created at least 30 days of excludable
time); see also Johnson, 29 F.3d at 945 (same). Excluding
the delays attributable to these motions reduces the STA
count to 155 days.
The events that unfolded in late September, 1993
further reduce the count. On September 23, 1993, Rodriguez's
case was called to trial, and a jury was empaneled, but not
sworn. One week later, as the trial was about to begin in
earnest, a last-minute discovery wrangle caused the still-
unsworn jury to be dismissed and the trial to be postponed.
The issue is how to treat the one-week interim between the
jury's empanelment and its unexpected dismissal.
It is settled that trial generally "commences" for
Speedy Trial Act purposes on the day the jury is empaneled,
even if not sworn. See Government of Virgin Islands v.
Duberry, 923 F.2d 317, 320 (3d Cir. 1991) (STA is not
violated so long as jury selection occurs within the 70-day
period, even if swearing occurs outside the period), cert.
denied, 115 S. Ct. 370 (1994); United States v. Fox, 788 F.2d
905, 908-09 (2d Cir. 1986) (same); United States v. Scaife,
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749 F.2d 338, 343 (5th Cir. 1984) (same); United States v.
Manfredi, 722 F.2d 519, 524 (9th Cir. 1983) (same); United
States v. Gonzalez, 671 F.2d 441 (11th Cir.), cert. denied,
456 U.S. 994 (1982); cf. United States v. Rojo-Alvarez, 944
F.2d 959, 965 (1st Cir. 1991) (dictum) (suggesting that the
STA clock was "definitively stopp[ed]" when jury was
empaneled); United States v. Zayas, 876 F.2d 1057, 1058 (1st
Cir. 1989) (noting the parties' agreement that STA is not
violated if jury empanelment occurs within the 70-day period
even if actual trial commences outside the period, so long as
the empanelment is not "pretextual"). Here, as far as the
record reflects, the parties and the court expected as of
September 23 that, following a brief recess of one week, the
empaneled jury would be sworn and that opening arguments and
testimony would get underway on September 30. Arguably, the
September 23, 1993 jury empanelment ended the running of STA
time. Cf. Duberry, 923 F.2d at 320 ("The Speedy Trial Act
does not require that once a trial commences it continue
without interruption . . . ."). Before September 30 the
parties and the court had every reason to believe that the
STA clock had ceased ticking on September 23. In these
circumstances, we conclude that, at a minimum, the STA clock
did not run during the 6-day interim between the jury's
empanelment and its dismissal. Subtracting this time brings
the STA tally to 149 days.
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We turn next to the proceedings of September 30
that unexpectedly halted the trial. That day, before the
jury was sworn, Rodriguez's counsel raised discovery issues
with the trial judge, contending that the government's
disclosure of information concerning its key witness
(Teixeira) had been sorely inadequate. Rodriguez asked that
the court order the government to produce additional
information. The district court, apparently seeing merit in
Rodriguez's claim, decided to dismiss the jury. Defense
counsel then asked the district court, "Judge, will it be
necessary to file a more detailed request . . .?" The court
replied, "Well, you take the time you need and study the
problem, then let me know what you need, all right?" Twelve
days later, on October 12, 1993, Rodriguez filed a "Motion
for Exculpatory Evidence" concerning Teixeira.
Rodriguez's request for additional information at
the September 30, 1993 proceedings was an oral motion for
supplemental discovery, which triggered the exclusionary
provisions of 3161(h)(1)(F). See United States v. Noone,
913 F.2d 20, 27 (1st Cir. 1990) (an oral motion no less than
a written one creates excludable time under 3161(h)(1)(F)),
cert. denied, 500 U.S. 906 (1991); accord United States v.
Pasquale, 25 F.3d 948, 950-51 (10th Cir. 1994); United States
v. Arbelaez, 7 F.3d 344, 347 (3d Cir. 1993); United States v.
Louis, 814 F.2d 852, 857 (2d Cir. 1987). Alternatively, the
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period between Rodriguez's September 30 oral request and the
filing of his October 12 written motion can be viewed as time
set aside by the district court as motion preparation time,
which also would be excludable under 3161(h)(1). See
United States v. Jodoin, 672 F.2d 232, 238 (1st Cir. 1982)
(allowing STA exclusion for period between defendant's oral
request for time to file motion and actual filing of motion);
cf. United States v. Barnes, 909 F.2d 1059, 1064-65 (7th Cir.
1990) (recognizing excludability of time designated by
district court as motion preparation time). Either way, the
entire 13-day period from September 30, 1993 through October
12, 1993 is excludable time. In light of this conclusion, we
need not address whether the adjournment resulting from the
September 30 proceedings would be excludable as an "ends of
justice" continuance under the STA. Had the district court
so intended, however, it would have been preferable for it to
have made an express finding on the record, as directed by
the statute, explaining why the "ends of justice served by
the granting of such continuance outweigh[ed] the best
interests of the public and the defendant in a speedy trial."
18 U.S.C. 3161(h)(8)(A); see United States v. Bruckman, 874
F.2d 57, 62 (1st Cir. 1989) (encouraging district courts to
make the requisite findings, but noting that in some
circumstances, failure to state the findings for the record
does not preclude excludability). In any event, subtracting
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the time between the September 30 adjournment and the filing
of the October 12 discovery motion brings the STA tally to
136 days.***
There remains at least one additional source of
excludable time the discovery motion Rodriguez filed on
June 16, 1993. Determining how much excludable time to
attribute to this motion presents a novel question in this
Circuit: how to treat a delay when the government defaults on
its obligation to respond to a defendant's motion by a court-
ordered deadline. Rodriguez's motion was filed on June 16,
1993 and did not receive a hearing. The magistrate judge
overseeing the pretrial proceedings had ordered the
government to file any opposition by July 23, 1993. Yet,
inexplicably, the government's opposition was not filed until
September 2, 1993. The government has not disputed that its
opposition was untimely; nor has it pointed to anything in
the record that would justify the delay. Still, citing
Henderson, the government contends that all of the time from
the filing of the June 16, 1993 motion to the filing of its
untimely response on September 2, 1993, plus an additional 30
days of advisement time, should be deemed excludable under
3161(h)(1)(F) and (J). Rodriguez disagrees, asserting that
***Because the period of excludable time attributable to the
October 12, 1993 written motion wholly overlaps the period
independently excluded by virtue of the October 13, 1993 bail
motion, the October 12 motion does not result in any extra
excludable time, except for the single day of October 12.
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the excludable time should be limited to the period from June
16 to July 23 (the date on which the government's opposition
was due), plus an additional 30 days of advisement time after
that due date.
There are considerable reasons to credit
Rodriguez's position. The government's broad reading of
Henderson is hardly sensitive to the purposes of the STA. To
be sure, Henderson creates an expansive rule of exclusion for
delays attributable to the hearing of pretrial motions. But
we doubt that Henderson or the Speedy Trial Act itself would
permit treating as excludable time an extended delay
attributable solely to the government's unexcused failure to
comply with a court-ordered briefing schedule. The dangers
of potential abuse lurking behind such a broad rule of
exclusion are plain.
A more sensible rule might provide for the
termination of excludable time under 3161(h)(1)(F) upon the
due date of the opposition to a defendant's pretrial motion
that does not receive a hearing, absent circumstances that
would reasonably justify a late filing. The Seventh Circuit
adheres to just such a "due date" rule. See United States v.
Thomas, 788 F.2d 1250, 1259 (7th Cir.), cert. denied, 479
U.S. 853 (1986); see also United States v. Baskin-Bey, 45
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F.3d 200, 203 (7th Cir. 1995), cert. denied, 115 S. Ct. 1809
(1995).**** Under that court's approach, a pretrial
motion that does not receive a hearing is deemed to be "under
advisement" on the date the government's response is due,
even if the response has not actually been filed. See
Thomas, 788 F.2d at 1259. Thus, as of the due date in the
Seventh Circuit, 3161(h)(1)(F) ceases to create excludable
time for a motion that receives no hearing, and the 30-day
period of excludable "advisement" time under 3161(h)(1)(J)
begins; after that 30-day period, the STA clock begins to run
again. See id.
The Thomas rule is commended by fairly obvious
considerations of policy. See Thomas, 788 F.2d at 1259 ("If
the entire period [of delay attributable to a government's
late filing] were excluded, a prosecutor could obtain
indefinite exclusions of time by the expedient of not
responding to . . . motions. That would undercut the
structure of the Speedy Trial Act."). For several reasons,
however, we leave for another day whether to adopt the Thomas
"due date" rule as the law of this Circuit. First and
foremost, we need not decide definitively whether to adopt
****The Fifth Circuit appears to differ. See United States
v. Martinez-Mercado, 888 F.2d 1484, 1493 (5th Cir. 1989)
(rejecting appellant's contention that Speedy Trial Act does
not exclude time between due date of government's response
under local rules and actual filing date). The Second
Circuit has left the question open. See United States v.
Adeniji, 31 F.3d 58, 66 (2d Cir. 1994).
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the "due date" rule in this case, because even applying that
rule, the number of non-excludable days within the relevant
STA period is less than 70: between the filing of the June 16
motion and the due date of the opposition (July 23) fell 38
days excludable under 3161(h)(1)(F). Adding 30 days of
excludable "under advisement" time pursuant to
3161(h)(1)(J), the total excludable time attributable to
the June 16 motion under the "due date" rule would be 68
days. Subtracting this time from the STA tally reduces the
count to 68 days, under the 70-day limit. Second, the record
before us is unclear as to whether there were in fact any
reasons for the government's late filing. Third, it is not
evident that Rodriguez ever brought the untimeliness of the
government's opposition to the district court's attention.
Cf. United States v. Welborn, 849 F.2d 980, 986-87 (5th Cir.
1988) (expressing concern that the Seventh Circuit's "due
date" rule might "permit a defendant to remain silent after a
deadline imposed on the prosecution had elapsed and permit a
Speedy Trial Act violation to accrue without notice to the
prosecution or the court").
Finally, we reject Rodriguez's assertion that his
June 16 motion did not generate any excludable time from June
16 to July 13. His argument purports to be built upon 18
U.S.C. 3161(c)(2), which some courts have understood to
prohibit commencement of a trial sooner than 30 days after a
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defendant's arraignment or indictment. See, e.g., United
States v. Daly, 716 F.2d 1499, 1504-05 (9th Cir. 1983), cert.
dismissed, 465 U.S. 1075 (1984). From this reading of
3161(c)(2), Rodriguez argues that his trial could not have
commenced before July 14, 1993 and that his June 16 motion
therefore could not have produced any actual "delay" and
hence no excludable time before that date. Whether or not
Rodriguez's suggested construction of 3161(c)(2) is
correct, his argument is unavailing. The argument rests on
the premise that a motion which causes no actual delay of a
trial date does not trigger 3161(h)(1). However, it is
clear in this Circuit as in others that the exclusions of
3161(h)(1)(F) and (J) are "automatic," and do not depend
upon any showing of actual delay. See United States v. Rush,
738 F.2d 497, 502 (1st Cir. 1984), cert. denied, 470 U.s.
1004 (1985); see also United States v. Montoya, 827 F.2d 143,
151 (7th Cir. 1987); United States v. Velasquez, 802 F.2d
104, 105 (4th Cir. 1986); United States v. Novak, 715 F.2d
810, 813 (3d Cir. 1983), cert. denied, 465 U.S. 1030 (1984).
To summarize, the following periods of time are
excludable under 3161(h): the single day of June 14, 1993
(arraignment); at least 68 days following the filing of
Rodriguez's discovery motion on June 16, 1993; the single day
of September 22, 1993 (co-defendant's submission of plea);
the 7-day period from September 23 through September 29, 1993
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(jury empanelment and trial "commencement"); at least 30 days
following the September 30, 1993 oral request for additional
discovery; the 13 of the 30 days following the October 13,
1993 bail motion that do not overlap with the time excluded
for the September 30 oral motion; and the 75-day period
between the December 10, 1993 pro hac vice motion and the
hearing on that motion. Excluding these 195 days from our
starting count of 263 leaves only 68 nonexcludable days.
We need go no further. The district court did not
err in denying Rodriguez's motion to dismiss the indictment
for violation of the STA.
III. Evidentiary Issues
A. Admissibility of Audiotape
Teixeira, the government's testifying informant,
taped his meetings with Rodriguez using a concealed recording
device. A total of eight tapes were admitted into evidence
at trial. Rodriguez contends that the district court's
admission of one of these tapes (Gov. Exhibit 7) was
reversible error, for three reasons: (1) the tape, which
purported to be a recording of a meeting between Teixeira and
Rodriguez on February 19, 1993, was not properly
authenticated; (2) the tape contains hearsay statements by
Teixeira; and (3) the tape contains some words spoken in
Spanish, creating a danger of jury confusion.
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There was no abuse of discretion in admitting the
tape over Rodriguez's authenticity objection. See United
States v. Font-Ramirez, 944 F.2d 42, 46-47 (1st Cir. 1991),
cert. denied, 502 U.S. 1065 (1992). First, Teixeira
identified it as the tape he recorded during a meeting with
Rodriguez on February 19, 1993, and Teixeira stated that the
tape fairly and accurately reflected that meeting. Teixeira
further testified that he had listened to the tape and
verified that his own voice was on it. Other government
witnesses confirmed that Teixeira met with defendant on the
relevant date, that Teixeira was wired to record the relevant
meeting, that Teixeira gave the tape to the DEA surveillance
team following the meeting, and that the tape passed through
a clean chain of custody preceding trial. Cf. United States
v. Rengifo, 789 F.2d 975, 978 (1st Cir. 1986) (holding that
tape can be properly authenticated by someone other than
participant in the recorded conversation). Rodriguez offered
no evidence that the tape was somehow inaccurate or had been
altered. See United States v. Carbone, 798 F.2d 21, 24 (1st
Cir. 1986).
Rodriguez's other objections to admission of the
tape also fail. His hearsay objection falters because he did
not make it at trial, arguing only a foundation objection
there. Admission of the tape was not plain error. His final
claim, that the presence of some Spanish words on the tape
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created a danger that some of the jurors might have tried to
act as interpreters for other jurors, is sheer speculation
and provides no basis for reversal.
Any alleged error in admitting the tape was
harmless in any event. The jury acquitted defendant of all
counts except for the count charging conspiracy to distribute
heroin. There was a wealth of evidence to support a
conviction on that count that had nothing to do with the
disputed tape, including Teixeira's live testimony, the
testimony of other surveilling officers, and several other
tape recorded conversations between Teixeira and Rodriguez
whose admissibility are not challenged here.
B. Limitation of Impeachment Evidence
During cross-examination of Teixeira at trial,
Rodriguez's counsel exposed the fact that in January, 1993
shortly before the start of the operation that led to
defendant's arrest Teixeira had been convicted of perjury.
As Rodriguez s counsel explored this skeleton in Teixeira s
closet, there arose some question about precisely when
Teixeira had served the 90-day home confinement sentence that
had attached to his conviction. Teixeira testified that he
had already served his sentence as of the date of Rodriguez's
trial (May 1994), but could not remember exactly when.
Rodriguez, in presenting his own case, called Teixeira's
probation officer to the stand. His testimony suggested that
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Teixeira had not in fact served his home confinement sentence
by May 1994. Seeking further to impeach Teixeira s already
damaged credibility, Rodriguez then moved for production of
certain correspondence in the possession of Teixeira's
probation officer that might indicate exactly when Teixeira
had served his 90-day sentence. The court denied Rodriguez's
request for the probation documents.
The district court's decision not to let Rodriguez
pursue the collateral question of when Teixeira had served
his perjury sentence is unassailable. The court had already
permitted Rodriguez ample opportunity to impeach Teixeira,
and it is unlikely that the probation documents would have
added anything to the jury s ability to assess Teixeira s
truthfulness. The district court has broad discretion to
limit the extent to which a defendant is permitted to impeach
a witness, see United States v. Fortes, 619 F.2d 108, 118
(1st Cir. 1980), and there was no abuse of that discretion
here. See United States v. Tejada, 886 F.2d 483, 488 (1st
Cir. 1989).
IV. Sentencing Issues
The district court added a two-level adjustment to
Rodriguez's base offense level in view of his role as a
manager, supervisor, or leader of criminal activity.
U.S.S.G. 3B1.1(c). This enhancement resulted in a total
offense level of 28, which yielded (given a criminal history
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category of I), a guidelines sentencing range of 78-97
months. The court then departed upward from that range (by
the equivalent of two offense levels) pursuant to U.S.S.G.
2D1.1, comment. (n.9) and 5K2.0, in consideration of the
unusually high purity of the drugs that defendant had been
dealing. Consequently, the court imposed a sentence of
imprisonment of 121 months.
Rodriguez's claim that there was insufficient
evidence to support a finding that he played a leadership
role for purposes of U.S.S.G. 3B1.1(c) is without merit.
The district court s finding, made with the benefit of all of
its observations at trial, is entitled to, and is given here,
considerable deference. See United States v. Andujar, 49
F.3d 16, 25 (1st Cir. 1994). We see no basis for declaring
that finding to be clearly erroneous.
Rodriguez s next complaint, that he received a
substantially heavier sentence than his co-defendant
Grajales, is also without merit. Absent misapplication of
the Guidelines, the mere fact of the disparity is of no
consequence. See United States v. Wogan, 938 F.2d 1446,
1448-49 (1st Cir.), cert. denied, 502 U.S. 969 (1991).
Besides, the difference is easily explained. Rodriguez,
unlike Grajales (who pleaded guilty before trial) was
sentenced against the backdrop of a full trial record that
exposed in sharp focus the complete extent of his criminal
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behavior. Cf. United States v. Rodriguez-Cardona, 924 F.2d
1148, 1160-61 (1st Cir.), cert. denied, 502 U.S. 809 (1991).
Rodriguez s final complaint is that his sentence
was twice enhanced for the same or similar aspects of his
criminal conduct through the simultaneous imposition of the
leadership-role enhancement and the drug-purity upward
departure. Rodriguez focuses this double-counting argument
on application note 9 to U.S.S.G. 2D1.1, which explains
that a drug's high purity "is probative of the defendant's
role or position in the chain of distribution." U.S.S.G.
2D1.1, comment. (n. 9). From this language, Rodriguez
argues that an upward departure based on drug purity is
duplicative of a leadership role enhancement.
In this case however, the district court's finding
of leadership role did not depend upon an inference from
heroin purity. Rather, the court found directly that
Rodriguez "used his mules and lackeys to make deliveries for
him and [that] he exercised leadership in some of these
deliveries by using underlings." Thus, the leadership-role
enhancement was notdriven by any consideration ofdrug purity.
Furthermore, application note 9 does not say that
drug purity and a defendant's leadership role are mutually
exclusive sentencing considerations. The application note
specifically states that "[t]rafficking in controlled
substances . . . of unusually high purity may warrant an
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upward departure," U.S.S.G. 2D1.1, comment. (n.9) (emphasis
added), not that high purity can provide a basis for the
leadership role adjustment set forth in 3B1.1(c).
Moreover, the notion of "leadership role" in 3B1.1(c) is
neither conceptually nor factually equivalent to the notion
of "role or position in the chain of distribution" referred
to in 2D1.1 application note 9. This court has in fact
previously affirmed a similar combination of upward
adjustments. See United States v. Diaz-Villafane, 874 F.2d
43 (1st Cir. 1989), cert. denied, 493 U.S. 862 (1989). There
was no error in the calculation of Rodriguez s sentence.
Affirmed.
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APPENDIX
Pretrial Chronology
Jun. 3, 1993 Indictment.
Jun. 14, 1993 Arraignment. Magistrate judge issues
scheduling order directing, inter alia, that
defendant file any pretrial motions by July
13, 1993, and that government file any
responses by July 23, 1993.
Jun. 16, 1993 Rodriguez files motion for discovery and
disclosure. Due date of government's
opposition is July 23, 1993; but opposition is
not filed until Sept. 2, 1993.
Sep. 2, 1993 Government responds to motion filed by
Rodriguez on June 16, 1993.
Sep. 22, 1993 Co-defendant Grajales submits guilty plea;
district court accepts plea.
Sep. 23, 1993 Initial jury in Rodriguez's case is selected
but not sworn.
Sep. 30, 1993 Before jury is sworn, Rodriguez requests
disclosure by government of additional
information concerning its key witness. Jury
is dismissed and Rodriguez's trial is
postponed pending resolution of discovery
issues.
Oct. 12, 1993 Rodriguez files "Motion for Exculpatory
Evidence."
Oct. 13, 1993 Rodriguez files motion to reconsider bail.
Oct. 19, 1993 Rodriguez's counsel files motion to withdraw.
Oct. 25, 1993 Hearing held on motion to withdraw; the court
allows the motion. Court gives Rodriguez 10
days to obtain new counsel.
Nov. 4, 1993 Rodriguez's new counsel Barry Wilson, not a
member of the district court bar, purports to
file an "appearance."
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APPENDIX, continued
Dec. 1, 1993 Local counsel files appearance on behalf of
Barry Wilson.
Dec. 10, 1993 Barry Wilson files motion for admission pro
hac vice. The government opposes the motion.
Feb. 22, 1994 Hearing held on pro hac vice motion. The
court allows the motion.
Feb. 22, 1994 Rodriguez files motion to dismiss indictment
for violation of Speedy Trial Act.
Apr. 28, 1994 Hearing held on motion to dismiss; the court
denies the motion.
May 12, 1994 Rodriguez's trial commences.
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