United States Court of Appeals
For the First Circuit
____________________
No. 98-1808
UNITED STATES,
Appellee,
v.
RAFAEL COLLAZO-APONTE,
a/k/a RAFI, a/k/a RAFAELITO,
Defendant, Appellant.
____________________
No. 98-1933
UNITED STATES,
Appellee,
v.
HERIBERTO ORTIZ-SANTIAGO,
Defendant, Appellant.
____________________
No. 98-1934
UNITED STATES,
Appellee,
v.
ANDRES COLON-MIRANDA,
Defendant, Appellant.
____________________
No. 98-1935
UNITED STATES,
Appellee,
v.
EDWIN ORTIZ-FIGUEROA,
Defendant, Appellant.
____________________
No. 98-1936
UNITED STATES,
Appellee,
v.
DAVID SAMUEL MARTINEZ-VELEZ,
Defendant, Appellant.
____________________
No. 98-1937
UNITED STATES,
Appellee,
v.
JORGE MERCED-MORALES,
Defendant, Appellant.
____________________
No. 98-1938
UNITED STATES,
Appellee,
v.
RAMON A. RIOS-RIOS,
Defendant, Appellant.
____________________
No. 98-2116
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UNITED STATES,
Appellee,
v.
EDWIN ROSARIO-RODRIGUEZ,
Defendant, Appellant.
____________________
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
____________________
Before
Torruella, Chief Judge,
Wallace,* Senior Circuit Judge,
and O'Toole, Jr.,** District Judge.
_____________________
Rafael F. Castro-Lang, by appointment of the Court, for appellant
Rafael Collazo-Aponte.
Kevin G. Little, by appointment of the Court, for appellant
Heriberto Ortiz-Santiago.
Johnny Rivera-González, by appointment of the Court, for appellant
Andrés Colón-Miranda.
Jorge L. Arroyo-Alejandro, by appointment of the Court, for
appellant Edwin Ortiz-Figueroa.
Víctor P. Miranda-Corrada, by appointment of the Court, for
appellant David S. Martínez-Vélez.
Ludwig Ortiz-Belaval for appellant Jorge Merced-Morales.
Linda Backiel for appellant Ramón A. Ríos-Ríos.
Rafael Anglada-López, by appointment of the Court, for appellant
Edwin Rosario-Rodríguez.
Lena Watkins, Deputy Associate Chief, Litigation, Narcotic and
Dangerous Drug Section, with whom Catherine Wingfield, and Grace Chung
Becker, Trial Attorneys, Narcotic and Dangerous Drug Section, Criminal
Division, U.S. Department of Justice, were on brief, for appellee.
____________________
June 27, 2000
* Of the Ninth Circuit, sitting by designation.
** Of the District of Massachusetts, sitting by designation.
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____________________
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TORRUELLA, Chief Judge. This appeal arises from a sixty-six
count criminal indictment charging the eight appellants -- Rafael
Collazo-Aponte, Heriberto Ortiz-Santiago, Andrés Colón-Miranda, Edwin
Ortiz-Figueroa, David S. Martínez-Vélez, Jorge Merced-Morales, Ramón A.
Ríos-Ríos, and Edwin Rosario-Rodríguez -- with numerous offenses
related to a decade-long, multi-drug-dealing conspiracy based in the
Virgilio Dávila public housing project in Bayamón, Puerto Rico. In
addition to the drug conspiracy charges, the indictment also charged
that between April 1993 and June 1994 over a dozen of the originally
named co-conspirators engaged in a war of revenge, triggered by the
February 23, 1993 murder of Richard Muñoz-Candelaria. This drug war
resulted in the murder of at least seven individuals. On February 16,
1998, a jury returned guilty verdicts as to all appellants on all
counts. This appeal followed.
After carefully examining the record and the law, we affirm
in part and reverse and remand in part.
PROCEDURAL HISTORY
On June 26, 1997, a grand jury empaneled in the United States
District Court for the District of Puerto Rico returned a third
superseding indictment in criminal case number 95-029(JAF). Count 1
charged appellants with conspiracy to possess with intent to distribute
cocaine base, cocaine, and heroin. See 21 U.S.C. §§ 841, 846. Count
65 charged appellants with using and carrying a firearm during and in
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relation to a drug conspiracy. See 18 U.S.C. § 924(c). Count 51
charged appellants Colón-Miranda, Ortiz-Santiago, Ortiz-Figueroa, and
Martínez-Vélez with conspiring to kill while engaged in a drug
conspiracy. See 21 U.S.C. §§ 846, 848(e)(1)(A). Additional counts
charged appellants Rosario-Rodríguez (Count 52), Colón-Miranda (Counts
53-59 and 62), Ortiz-Santiago (Count 53), Ortiz-Figueroa (Count 53),
and Martínez-Vélez (Counts 57 and 58) with intentionally killing or
attempting to kill while engaged in a drug conspiracy. See 18 U.S.C.
§ 2; 21 U.S.C. §§ 846, 848(e)(1)(A). These charges also alleged
liability pursuant to Pinkerton v. United States, 328 U.S. 640 (1946).
Finally, Counts 60-64 charged Colón-Miranda with attempting to kill and
then killing Rafael Cotto-Fuentes in order to prevent him from (1)
communicating with law enforcement officers and (2) testifying for the
prosecution. See 18 U.S.C. §§ 2, 1512(a)(1)(A), (C).
On November 5, 1997, the prosecution moved the district court
to empanel an anonymous jury. On November 13, 1997, the court
conducted a "Jury Orientation" without the parties or counsel being
present and excused several prospective jurors. The court then granted
the government's request for an anonymous jury over the objection of
Colón-Miranda. Prior to trial, the court also denied motions to sever
filed by appellants Ríos-Ríos and Collazo-Aponte.
Trial commenced on November 17, 1997. At that time, the
district court ruled that all rulings applied to all defendants and
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motions joining co-defendants' motions were unnecessary. The court
also denied a motion to reconsider its decision to empanel an anonymous
jury.
On February 16, 1998, the jury returned guilty verdicts as
to all appellants on all counts. The court sentenced Ortiz-Santiago,
Ortiz-Figueroa, and Martínez-Vélez to concurrent terms of life
imprisonment on multiple counts and a consecutive ten-year term on
Count 65; Colón-Miranda to concurrent terms of life imprisonment on
multiple counts, a concurrent twenty-year term on Count 66, and a
consecutive ten-year term on Count 65; Rosario-Rodríguez to concurrent
terms of life imprisonment on Count 1 and twenty years on Count 52, as
well as a consecutive ten-year term on Count 65; Collazo-Aponte, Ríos-
Ríos, and Merced-Morales to 151, 293, and 360 months imprisonment,
respectively, on Count 1 and, with respect to Collazo-Aponte and
Merced-Morales, a consecutive ten-year term on Count 65.
FACTUAL BACKGROUND
We review the facts in a criminal case in the light most
favorable to the verdict. See, e.g., United States v. Bartelho, 71
F.3d 436, 438 (1st Cir. 1995).
I. Overview
At trial, the prosecution offered evidence of a drug
distribution organization led by Israel Santiago-Lugo that began in the
Virgilio Dávila housing project in Bayamón, Puerto Rico, and later
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expanded to several drug distribution points in northern Puerto Rico.
The government's evidence included the testimony of five cooperating
witnesses: brothers Wilfredo and David Martínez- Matta, Billy Ramos-
Rodríguez, José Ibáñez-Maldonado, and Marcos Hidalgo-Meléndez. These
witnesses testified that in the mid-1980s Santiago-Lugo cultivated a
group of employees who processed and packaged cocaine and heroin at
apartments, known as "mesas," for delivery to various drug distribution
points. The evidence indicated that trusted operatives managed the
distribution points and lower level employees handled the street-level
distribution. On February 28, 1993, the Santiago-Lugo drug
organization splintered into rival factions when the Rosario-Rodríguez
brothers murdered Richard Muñoz-Candelaria. A series of retaliatory
murders ensued as Santiago-Lugo and those loyal to him engaged in
hunting expeditions ("cacerías") to kill the Rosarios.
II. Drug Packaging at the Mesas
At trial, the witnesses for the prosecution testified as to
their and the appellants' involvement in the Santiago-Lugo drug mesas.
Wilfredo Martínez-Matta stated that in 1986 and 1987 he worked at two
drug mesas located in hotels. At that time, he also packaged cocaine
at his mother's house. Ramos-Rodríguez and David Martínez-Matta
testified that they also packaged drugs at the Martínez-Matta house,
and David Martínez-Matta stated that Santiago-Lugo, Colón-Miranda, and
brothers Ortiz-Santiago and Ortiz-Figueroa participated.
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Wilfredo Martínez-Matta and Ramos-Rodríguez testified that
in 1989 a condominium in Reina del Mar served as a mesa. Hidalgo-
Meléndez testified that Colón-Miranda, Ortiz-Santiago, and Ortiz-
Figueroa packaged drugs there in the early 1990s. Wilfredo Martínez-
Matta stated that he packaged cocaine there once in 1989, and further
stated that Ortiz-Santiago, a drug user, "tested" drug quality at this
location. Ramos-Rodríguez, who rented the Reina del Mar mesa for four
to five months, indicated that the drug organization packaged one-
eighth-kilogram quantities of cocaine at each session in the Reina del
Mar mesa and that he or Santiago-Lugo would transport the drugs to
Dávila for storage and distribution.
In the early 1990s, Wilfredo Martínez-Matta worked at two
mesas in the Costa del Mar condominium complex. At these locations, he
processed cocaine with Ramos-Rodríguez and heroin with Ríos-Ríos.
Wilfredo Martínez-Matta also stated that (1) the organization packaged
kilogram quantities of cocaine and one-eighth kilograms of heroin at
each session and (2) Ríos-Ríos once obtained one kilogram of cocaine
for Santiago-Lugo from a supplier. Ramos-Rodríguez recalled that the
organization used the Costa del Mar mesas from 1990 to 1991, that he
processed heroin and cocaine once or twice a week for four or five
months there, and that he was paid $150 for each one-eighth kilogram of
cocaine packaged. He added that Ortiz-Santiago delivered drugs to the
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mesa, occasionally with Santiago-Lugo. Ortiz-Santiago also processed
drugs and tested their purity.
Wilfredo Martínez-Matta, David Martínez-Matta, and Ramos-
Rodríguez also testified that Ríos-Ríos rented a mesa at the Los Pinos
condominium complex in Isla Verde. All three witnesses, in addition to
Colón-Miranda, Ortiz-Santiago, Ortiz-Figueroa, and Ríos-Ríos, processed
heroin there. According to the testimony presented at trial, the
organization processed quarter-kilogram quantities of heroin and
kilogram quantities of cocaine there on a weekly basis. Hidalgo-
Meléndez also recalled packaging drugs at Los Pinos and once saw Ríos-
Ríos deliver cocaine there. Further, the rental agreements for the Los
Pinos mesa indicated that Ríos-Ríos rented the apartment and listed
Santiago-Lugo as his employer and reference. Defense witness Marta
Arrondo-Díaz, who owned the Los Pinos apartment, stated that she rented
the apartment to Ríos-Ríos and Santiago-Lugo for a one year term in
March 1991.
The trial testimony identified three additional mesas: an
apartment in Condado where Wilfredo Martínez-Matta worked with Ortiz-
Santiago, a condominium in the Villa del Mar complex in Isla Verde, and
a Coral Beach condominium rented by Colón-Miranda. Wilfredo Martínez-
Matta recalled seeing Santiago-Lugo, Colón-Miranda, Ramos-Rodríguez and
others packaging heroin in bags marked with the name "cristal" at the
Coral Beach condominium. Ramos-Rodríguez testified that Santiago-Lugo
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moved operations to the Coral Beach condominium in 1991. There,
Santiago-Lugo, Colón-Miranda, Ortiz-Santiago, and others packaged two
or three ounces of heroin two or three times each week.
III. Drug Distribution Points
Wilfredo Martínez-Matta testified that by the time the drug
operation was located at the Coral Beach mesa in 1991, the organization
had drug points in Manatí, Vega Baja, Arecibo, Campo Alegre, and Sabana
Seca. Wilfredo Martínez-Matta worked at the Vega Baja drug point where
he sold fifty packages of heroin every ten days; each package, obtained
for $75 and sold for $100, contained ten "decks" of heroin. Colón-
Miranda and Richard Muñoz-Candelaria occasionally supervised the Vega
Baja drug point. Later, Wilfredo Martínez-Matta supervised a drug
point in Manatí where he sold approximately one hundred packages of
heroin every three days and also sold marijuana and vials of crack.
David Martínez-Matta supervised one of the Arecibo drug
points where he sold heroin, cocaine, crack, and marijuana from 1991 to
1995. He testified that Colón-Miranda would deliver the drugs for
distribution. He also stated that on two occasions he saw Colón-
Miranda make deliveries to Luis Rosario-Rodríguez.
In 1990, José Ibáñez-Maldonado began to accompany Colón-
Miranda on drug deliveries to the drug distribution points; later,
Ibáñez-Maldonado also assisted with packaging drugs at Colón-Miranda's
Dorado home and at a mesa in the King's Court condominium.
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After the Santiago-Lugo/Rosario-Rodríguez conflict erupted
in February 1993, the exchange of drugs and money moved from an
apartment in the Dávila housing project to Merced-Morales' bar,
"Chompa," in Monacillos. Both Wilfredo and David Martínez-Matta
testified that on numerous occasions they delivered money there and
obtained drugs from Merced-Morales and Collazo-Aponte, including
kilogram quantities of crack.
IV. The Rosario-Rodríguez Brothers
The Rosario-Rodríguez brothers, Richard, Edwin, and Luis,
controlled a drug distribution point at the Dávila housing project
outside of Building 17. By mid-1991, the brothers were selling
Santiago-Lugo's heroin. In August 1991, Santiago-Lugo granted the
Rosario brothers exclusive distribution rights for his cocaine at
Dávila.
Ramos-Rodríguez testified that Edwin Rosario-Rodríguez
controlled the crack cocaine distribution at Dávila and was responsible
for getting heroin to the street dealers. He further stated that
during this time he saw Edwin Rosario-Rodríguez in possession of a
firearm at Dávila. Similarly, Hidalgo-Meléndez testified that Edwin
Rosario-Rodríguez went to Rosa Morales-Santiago's apartment to pick up
drugs, and identified numerous drug transactions in the drug ledgers
under Edwin's nickname "Indio."
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By 1992, however, Edwin Rosario-Rodríguez' ability to run the
drug point was in question, and Santiago-Lugo removed him from his
position as a "point owner." Nevertheless, the Rosarios were still
allowed to sell packages of heroin and cocaine. Hidalgo-Meléndez
testified that the agreement between Santiago-Lugo and the Rosario
brothers continued until February 28, 1993, when the Rosario brothers
murdered Richard Muñoz-Candelaria.
The prosecution also offered evidence of the following
incident involving Edwin Rosario-Rodríguez. On July 3, 1992, a police
officer witnessed Edwin Rosario-Rodríguez holding a Calico pistol in
the Dávila housing project. The officer followed him into Building 17.
Edwin Rosario-Rodríguez discarded the weapon by the entrance, and the
officer seized it. In the stairway, the officer also seized a white
bag that had been carried by a second individual that contained
transparent plastic vials commonly used to package crack cocaine. The
bag field-tested positive for cocaine. Edwin Rosario-Rodríguez ran
into an apartment with a metal door (the other apartments on the floor
had wooden doors), and the officer heard the toilet flushing. The
officer entered the apartment by using a balcony and later seized over
$1,000 in cash.
V. Drug Ledgers
Both Wilfredo and David Martínez-Matta testified about drug
transactions at the Dávila apartment of Rosa Morales-Santiago. In his
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testimony, Wilfredo Martínez-Matta stated that Morales-Santiago would
count the heroin proceeds and record them in a notebook. Similarly,
Hidalgo-Meléndez testified that Morales-Santiago recorded drug
transactions in a black school notebook and, later, a brown notebook.
After examining two notebooks seized from Morales-Santiago's Dávila
apartment in 1991, Hidalgo-Meléndez stated that units marked "c" in the
notebooks represented "cristal" and that each package contained ten
bags of heroin. An expert witness testified that the notebooks were
consistent with those kept by an illicit drug organization. He opined
that the "product" was calculated in units and that the "c" units sold
for $75. He noted that together the notebooks reflected sales of at
least $3.5 million during one year.
VI. The Murder of Richard Muñoz-Candelaria
At trial, witnesses for the prosecution offered the following
account of the February 28, 1993 murder of Richard Muñoz-Candelaria.
Wilfredo Martínez-Matta testified that he, Muñoz-Candelaria, and an
individual named Jerry were at the Rosario drug point in Dávila the day
Muñoz-Candelaria was killed. Santiago-Lugo had sent Muñoz-Candelaria
to inform "Liquio" (Luis Rosario-Rodríguez) that he wanted his heroin
and his money back. Liquio was "upset" and told Muñoz-Candelaria to
"forget about it." Edwin Rosario-Rodríguez was there, holding an
automatic pistol. Colón-Miranda and a co-conspirator identified as "El
Gato" arrived, and Colón-Miranda sent Wilfredo Martínez-Matta to
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deliver some money to Santiago-Lugo. When Wilfredo arrived at
Santiago-Lugo's house, Santiago-Lugo answered a ringing telephone. He
heard gun shots over the telephone, and he ordered Wilfredo to return
to the Rosario drug point. Santiago-Lugo then paged Wilfredo and
directed him to pick up Colón-Miranda at a bus stop. When he arrived,
Colón-Miranda told him that Liquio killed Muñoz-Candelaria.
Ramos-Rodríguez testified that he was in Dávila on the
afternoon of the murder. He stated that he had declined to join Colón-
Miranda and Muñoz-Candelaria when they went to talk to Liquio, going
instead to his mother-in-law's apartment. There, he heard a gunshot,
and then a few seconds later, he heard two different series of shots.
He ran out onto a balcony, saw people running away, and heard some
people shout, "Liquio killed him" and "whoever talks, I'll kill them."
Later that day, Colón-Miranda told David Martínez-Matta that
El Gato and Muñoz-Candelaria were talking to Liquio. Muñoz-Candelaria
attempted to hand Liquio his phone when Liquio started to shoot him.
Colón-Miranda and El Gato did not have time to draw their weapons, so
they ran away. At that time, "Indio" (Edwin Rosario-Rodríguez) came
over to where Muñoz lay, and both Edwin and Luis Rosario-Rodríguez shot
Muñoz-Candelaria again.
Officer Sánchez-Ramos testified that he found the victim
lying on top of a cellular telephone that was still turned on. The
autopsy report showed that Muñoz-Candelaria was shot twenty-nine times.
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Blood and urine tests indicated the presence of alcohol, and urine and
nasal swab tests were positive for cocaine and a cocaine metabolite.
A forensics expert testified that the victim had been shot with two
types of bullets, indicating that two guns were used in the murder.
After the murder, Colón-Miranda and Wilfredo Martínez-Matta
attended the first of several meetings to discuss "going to war" over
the Dávila drug point. At these meetings, members of the Santiago-Lugo
organization discussed and planned cacerías to kill the Rosarios. At
a second meeting in Isla Verde, Santiago-Lugo and Colón-Miranda
prepared weapons for the cacerías.
VII. The Hunting Expeditions ("Cacerías")
A. The Murder of Reynaldo Pacheco-Aponte
At a subsequent meeting held in an apartment in Dorado, the
Martínez-Matta brothers, Hidalgo-Meléndez, El Gato, Santiago-Lugo, and
Colón-Miranda planned how they would enter Dávila and kill the
Rosarios. During the meeting, Colón-Miranda telephoned Ortiz-Santiago,
and it was agreed that Ortiz-Santiago and Ortiz-Figueroa would keep
Colón-Miranda informed as to the Rosarios' precise location within
Dávila.
On April 19, 1993, the group drove to Dávila after receiving
a call from Ortiz-Santiago. Colón-Miranda and El Gato, armed with AR-
15 rifles, entered the housing project through the back door of a
business while the others drove into the complex. When they all
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returned to their cars, and at a later meeting, Colón-Miranda talked
about how he killed "El Pacheco." At the scene of the crime, law
enforcement officers recovered 100 casings fired from AR-15 rifles.
A distressed resident informed an officer at the scene that
"they ran off through Paradero 23" and "they had masks." He also said
that one of those who ran off was injured and wearing white pants and
a mask. The officer located Ortiz-Santiago and Ortiz-Figueroa walking
together on a side street near the Paradero and arrested and searched
them. Ortiz-Figueroa had a bag containing firearms and ammunition, a
rock of heroin or cocaine, a cellular telephone, a glove, two masks,
and a firearm on his person. The officer saw blood on one of the masks
and on the clothes of Ortiz-Figueroa who appeared to have a hand
injury.
Wilfredo Martínez-Matta was not at the cacería; instead, he
was obtaining three pounds of marijuana from Merced-Morales' business.
Some of those involved, however, later met at his house. There, Colón-
Miranda admitted to participating in the hunt and El Gato admitted
killing Pacheco-Aponte. At yet another meeting, the co-conspirators
discussed David Martínez-Matta shooting haphazardly during the cacería
and that, as a result, "Erick [Ortiz-Santiago] could not come out."
Hidalgo-Meléndez learned of the murder on the news. He was
informed of the details at a meeting with Colón-Miranda and the
Martínez-Matta brothers at the Las Villas apartments in Dorado.
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Hidalgo-Meléndez testified, "[El Gato] was just like bragging about the
way he had killed Pacheco and explaining, like, he sewed with bullets
the person of Pacheco . . . ." In addition, El Gato told Hidalgo-
Meléndez that "Erick [Ortiz-Santiago] and his brother [Ortiz-Figueroa]
had not been able to come downstairs from the building . . . because
one of the persons that had entered the project to kill the Rosario
brothers were shooting at them."
B. The Murders of Ricardo Rivera-Dide and Samuel Serrano-
Bermúdez
Wilfredo Martínez-Matta began the next cacería with Santiago-
Lugo by driving through the Bayamón area armed and looking for the
Rosarios. After Colón-Miranda joined them, they found and followed
Rivera-Dide and Serrano-Bermúdez, known associates of the Rosarios.
Wilfredo and Colón-Miranda shot and killed both men as they sat in a
car. Hidalgo-Meléndez testified that he later learned that Wilfredo
had killed "Sammy" and Colón-Miranda had killed Sammy's passenger.
C. The Murders of Wilfredo Rivera-Rodríguez and Wilfredo
Guzmán-Morales
A third cacería occurred around Easter in 1994. At that
time, Ibáñez-Maldonado, Colón-Miranda, and Martínez-Vélez met at the
King's Court mesa. There, they planned a cacería in search of the
Rosarios "because of the drug point war." They drove a stolen white
van to look for the Rosarios. While driving, they came across two
people on a motorcycle. They recognized someone they were looking for,
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and Colón-Miranda and someone else began shooting at the individuals on
the motorcycle. Ibáñez-Maldonado testified that he had a Taurus 9mm
firearm, Colón-Miranda had an AK-47 or an AR-15, and Martínez-Vélez had
an M-14 that jammed. There were three other Taurus pistols in the van.
After they shot the driver and the motorcycle crashed, Martínez-Vélez
and Raúl Ortiz-Miranda exited the van and killed the victims. When a
police scanner alerted them that the police were in pursuit, they fled
to a mountainous area, abandoned the van, and hid some of the weapons
under leaves. Ibáñez-Maldonado also testified that Martínez-Vélez had
darker skin than Ortiz-Miranda and that Ortiz-Miranda was wearing a
white cap.
A police officer was following the white van as it pursued
the motorcycle. After driving over the crest of a hill, the officer
saw the bikers on the ground being shot by a tall, dark person and a
tall, white person with a cap. A second officer responded to the
shooting incident and chased the white van, which he eventually found
near a hill. The police found several firearms near the van and a cap.
Officers also seized casings for AR-15 and 9mm firearms within the van.
VIII. The Murder of Rafael Cotto-Fuentes
In 1994, Cotto-Fuentes was arrested for the murder of José
Cruz-Rodríguez. He agreed to cooperate with authorities and was
released on bond. At a meeting with Officer Rodríguez in late April or
early May 1994, Cotto-Fuentes described the Santiago-Lugo drug
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organization. His testimony linked Colón-Miranda to the organization's
activities, including the Cruz-Rodríguez murder. Based on the
information it received from Cotto-Fuentes, the Puerto Rico U.S.
Attorney's Office initiated an investigation. Cotto-Fuentes
subsequently reported that Colón-Miranda, among others, had tried to
kill him on May 20. Based on Cotto-Fuentes' account of the attempted
murder, a judge issued warrants for the arrest of Ortiz-Miranda, Colón-
Miranda, and a co-conspirator. While Ortiz-Miranda was in custody, he
and Colón-Miranda reviewed the complaint, and an officer heard Ortiz-
Miranda comment that Cotto-Fuentes was a "snitch."
Cotto-Fuentes was murdered in June 1994. On July 27, 1994,
Colón-Miranda was arrested. A forensics expert testified that the 9mm
Taurus firearm seized from Colón-Miranda's vehicle at the time of his
arrest had an obliterated serial number; its barrel had been hollowed
out to prevent identifying marking from forming on the bullet; and its
firing pin had been filed down to disguise markings. However, the gun
still produced identifying marks on the casing from the breach face,
which is located at the rear of the gun, and these marks matched the
twenty-four shell casings recovered from the murder scene.
IX. The Arrests of Martínez-Vélez, Collazo-Aponte, and Merced-
Morales
On November 22, 1993, police officers stopped a stolen
vehicle. The passengers fled, but the police arrested the driver,
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Martínez-Vélez, and seized a loaded "submachine gun," two portable
radios, and approximately $1,300 in currency.
On September 29, 1994, a police officer observed Collazo-
Aponte standing beside a car. The officer announced himself, and
Collazo-Aponte threw a bag containing more than 1,000 decks of heroin
into the car. He later stated that the car was his.
At the time Merced-Morales was arrested, law enforcement
officers seized a scale, small ziplock bags, and additional drug
paraphernalia from his residence as well as a list of high-powered
firearms from his vehicle.
DISCUSSION
This case involves eight appellants, each raising a plethora
of arguments. Not surprisingly, several arguments are raised by more
than one appellant. Accordingly, in the interest of clarity, we have
organized this opinion by issue and not by individual appellant. We
begin with the arguments concerning pretrial motions and then proceed
in a rough chronology through sentencing.
I. Severance of the Cases of Ríos-Ríos, Collazo-Aponte, and
Merced-Morales
Severance motions made pursuant to Federal Rule of Criminal
Procedure 14 are addressed to the sound discretion of the trial judge.
This Court will interfere with the exercise of that discretion "only
upon a demonstration of manifest abuse." United States v. Boylan, 898
-22-
F.2d 230, 246 (1st Cir. 1990); see also United States v. Cresta, 825
F.2d 538, 554 (1st Cir. 1987); Talavera v. Peña, 668 F.2d 625, 630 (1st
Cir. 1982). Accordingly, in order to prevail, appellants must "make a
strong showing of prejudice." Boylan, 898 F.2d at 246 (quoting United
States v. Porter, 764 F.2d 1, 12 (1st Cir. 1985)). In this context,
"prejudice means more than just a better chance of acquittal at a
separate trial." United States v. Martínez, 479 F.2d 824, 828 (1st
Cir. 1973). As we have previously stated:
This is a difficult battle for a defendant to
win. There is always some prejudice in any trial
where more than one offense or offender are tried
together -- but such "garden variety" prejudice,
in and of itself, will not suffice. Even where
large amounts of testimony are irrelevant to one
defendant, or where one defendant's involvement
in an overall agreement is far less than the
involvement of others, we have been reluctant to
secondguess severance denials.
Boylan, 898 F.2d at 246 (citations omitted); see also Cresta, 825 F.2d
at 554-55 ("[T]he fact that the defendant plays a minor role and that
a substantial portion of the evidence is not directly related to the
defendant, does not make it ' automatically unlawful to try him with
more important figures.'" (quoting United States v. Mahomud Rawwad, 807
F.2d 294, 295 (1st Cir. 1986)).
Here, Ríos-Ríos, Collazo-Aponte, and Merced-Morales contend
that they suffered prejudicial spillover from the murder evidence
presented in this case. We are well aware of the potential for
-23-
prejudice in a complicated conspiracy trial involving several
defendants. See, e.g., United States v. Smolar, 557 F.2d 13, 21 (1st
Cir. 1977); Gorin v. United States, 313 F.2d 641, 646 (1st Cir. 1963).
Nonetheless, in this case we see "little beyond the type and degree of
prejudice customary in virtually all high-profile trials of multiple
defendants and charges." Boylan, 898 F.2d at 246. Here, as in Boylan,
"[t]here is nothing to suggest that the number of defendants and
charges was so large that the jury could not distinguish among them."
Id.; see also United States v. Luna, 585 F.2d 1, 5 (1st Cir. 1978).
Furthermore, the trial court gave appropriate limiting instructions as
to the admissibility of evidence against particular defendants and as
to the need to determine guilt on an individual basis. See United
States v. Figueroa, 976 F.2d 1446, 1452 (1st Cir. 1992) ("[E]ven
assuming some evidentiary spillover, any prejudice was minimized by the
limiting instructions given before and after the closing arguments.");
see also Boylan, 898 F.2d at 246; Smolar, 557 F.2d at 21.1 Under these
circumstances, we hold that appellants have failed to "make a strong
showing of prejudice." Boylan, 898 F.2d at 246 (quoting Porter, 764
1 At the outset of trial, the judge instructed the jury to separately
consider "each charge and the evidence pertaining to it" and to "give
separate and personal consideration to the case of each individual
defendant." At the close of evidence, the judge reiterated these
instructions and added, "your verdict on any counts to any defendant
should not control your verdict on any other count or as to any other
defendant."
-24-
F.2d at 12). Accordingly, the district court did not abuse its
discretion in denying appellants' Rule 14 motion.
II. The District Court's Jury Screening Procedure
On September 3, 1997, the trial judge stated that he intended
to screen the jury outside the presence of the parties and counsel, as
he did in the related case United States v. Candelaria-Silva, 166 F.3d
19, 31 (1st Cir. 1999). There, the prospective jurors completed
questionnaires and the judge excused those who lacked English
proficiency, suffered from medical problems, or had previously
scheduled travel plans. See id. at 29-31. On November 13, 1997, the
judge screened the jury panel assigned to this case. Between September
3 and November 13, appellants did not object or request reconsideration
of the court's intention to screen the jury. However, on November 17,
Rosario-Rodríguez and Ortiz-Figueroa did object and moved to quash the
panel. The district court denied the motion.
In Candelaria-Silva, we stated, "[i]f a judge does no more
than what a jury clerk is authorized to do in excusing jurors, that may
raise an issue of allocation of court resources but does not raise an
issue of impropriety." Id. at 31. Here, several appellants argue that
the jury screening procedure violated their Fifth and Sixth Amendment
rights, but they fail to provide the Court with any relevant citations
to the record. In fact, appellants do not even allege that the
district court improperly dismissed jurors. Accordingly, we hold that
-25-
Candelaria-Silva controls, and therefore appellants' argument is
without merit. See id.
-26-
III. The District Court's Decision to Empanel an Anonymous Jury2
Ríos-Ríos alleges that the decision to empanel an anonymous
jury constituted an abuse of discretion. We disagree. A district
court may empanel an anonymous jury when "the interests of justice so
require." 28 U.S.C. § 1863(b)(7). In this Circuit, we have held that
an anonymous jury is "a permissible precaution where (1) there are
strong grounds for concluding that it is necessary to enable the jury
to perform its factfinding function, or to ensure juror protection; and
(2) reasonable safeguards are adopted by the trial court to minimize
any risk of infringement upon the fundamental rights of the accused."
United States v. DeLuca, 137 F.3d 24, 31 (1st Cir. 1997). Our review
of this decision is not limited to "the evidence available at the time
the anonymous empanelment occurred," but may include "all relevant
evidence introduced at trial." Id.
2 Martínez-Vélez argues that the district court failed to make
individualized findings regarding the need for an anonymous jury, the
jury may not have been anonymous to the government, and the combination
of anonymity and the mid-trial dismissal of Juror 23 negated the
presumption of innocence. As the government correctly points out,
Martínez-Vélez did not raise these arguments before the district court.
Accordingly, these arguments have been waived. See United States v.
Slade, 980 F.2d 27, 31 (1st Cir. 1992) ("[A] party is not at liberty to
articulate specific arguments for the first time on appeal simply
because the general issue was before the district court."); see also
United States v. Figueroa, 818 F.2d 1020, 1025 (1st Cir. 1987) ("[A]n
issue not presented to the trial court cannot be raised for the first
time on appeal."); United States v. Argentine, 814 F.2d 783, 791 (1st
Cir. 1987) (same); Nogueira v. United States, 683 F.2d 576, 580 (1st
Cir. 1982) (same).
-27-
Here, the indictment charged several defendants with murder,
all defendants with membership in a violent, sprawling drug conspiracy,
and one defendant with intimidation and murder of a cooperating
government witness. Under these circumstances, we hold that the record
"affords sufficient foundation for empaneling an anonymous jury both as
a prudent safety precaution and a means of ensuring unfettered
performance of the factfinding function." Id.; see also United States
v. Marrero-Ortiz, 160 F.3d 768, 776 (1st Cir. 1998).
Furthermore, the trial judge took adequate precautions to
protect the defendants' rights. As he had done in the related case of
Marrero-Ortiz, the trial judge "did not mention any threat to juror
safety, but, rather, informed the jurors that they would remain
anonymous during the trial because of publicity concerns. He then
instructed the jury on the presumption of innocence, and periodically
repeated that instruction as the trial progressed." Marrero-Ortiz, 160
F.3d at 776. Under these circumstances, the trial judge did not exceed
the scope of his discretion when he empaneled an anonymous jury in this
case.
IV. Restriction on Sidebar Participation During Voir Dire
During voir dire, the trial judge restricted participation
by defense counsel in sidebar conferences to "two of you at the most."
Although counsel for Ortiz-Figueroa suggested that all attorneys
participate by using headphones, trial counsel for appellants did not
-28-
object to the limitation. Ríos-Ríos now argues that the restrictions
on sidebar participation during voir dire violated his right to be
present at every critical stage of the trial. See Fed. R. Crim. P.
43(a). We disagree.
This argument is controlled by United States v. Gagnon, 470
U.S. 522, 527 (1985). There, the Supreme Court held:
The mere occurrence of an ex parte conversation
between a trial judge and a juror does not
constitute a deprivation of any constitutional
right. The defense has no constitutional right
to be present at every interaction between a
judge and a juror, nor is there a constitutional
right to have a court reporter transcribe every
such communication.
Id. at 526 (quoting Rushen v. Spain, 464 U.S. 114, 125-26 (1983)
(Stevens, J., concurring)). In addition, the Court stated:
If a defendant is entitled under Rule 43 to
attend certain "stages of the trial" which do not
take place in open court, the defendant or his
counsel must assert that right at the time; they
may not claim it for the first time on appeal
from a sentence entered on a jury's verdict of
"guilty."
.
Id. at 529.
In this case, Ríos-Ríos was restricted from full
participation in a limited number of sidebar conferences that occurred
during voir dire; in all other aspects, appellant was present at, and
fully participated in, his trial. In addition, trial counsel did not
object to the restriction, and counsel subsequently exercised cause and
-29-
peremptory challenges without objecting that there was not enough
information to make those decisions. On these facts, we see no Rule 43
violation.
-30-
V. The Defense's Request to Use the Government's Witness List
During Voir Dire
Ríos-Ríos alleges that the trial court abused its discretion
in refusing the defense's request for disclosure of the prosecution's
witnesses during voir dire. This argument is meritless. In this
Circuit, the law is settled: "[T]here is no constitutional or statutory
requirement that the identity of prosecution witnesses be disclosed
before trial." United States v. Bello-Pérez, 977 F.2d 664, 670 (1st
Cir. 1992); see also United States v. Reis, 788 F.2d 54, 58 (1st Cir.
1986); United States v. Barrett, 766 F.2d 609, 617 (1st Cir. 1985).
VI. Juror 58's Previous Service in an Unrelated Trial
Ríos-Ríos also argues that Juror 58's previous service in an
unrelated trial involving government witness Ibáñez-Maldonado resulted
in bias. We see no merit in this argument. During Ibáñez-Maldonado's
testimony, Juror 58 informed the trial judge of his service in a
previous trial that ended in an acquittal of Ibáñez-Maldonado. The
judge then conducted voir dire outside the presence of the jury. Juror
58 stated that he could serve impartially in this case and, although he
had mentioned his prior service to his fellow jurors, he had not
discussed the details of the case. Upon further inquiry, the court
determined that the prior case involved a drug charge unrelated to the
Santiago-Lugo organization. Exercising an abundance of caution, the
trial judge queried the defense; defense counsel informed the court
-31-
that they did not want Juror 58 dismissed. The judge recalled the
jurors and instructed them that Juror 58 had served in a previous case
in which Ibáñez-Maldonado was accused, but that Juror 58 could
participate in the present case. The judge emphasized that Juror 58
should not discuss the previous case with the jurors and that Juror 58
had to disregard the previous case in considering the present one.
We conclude that the trial judge's careful voir dire of Juror
58 was sufficient to assess his impartiality and the potential taint of
the entire panel. Further, the judge carefully instructed the jury to
disregard the juror's prior service. As we have previously held, "the
trial judge is vested with the discretion to fashion an appropriate and
responsible procedure to determine whether misconduct actually occurred
and whether it was prejudicial." United States v. Ortiz-Arrigoitía,
996 F.2d 436, 443 (1st Cir. 1993); see also Boylan, 898 F.2d at 258.
Therefore, appellant's claim of bias fails.
VII. Statements Made by Co-Conspirator "El Gato" to
Hidalgo-Meléndez
Ortiz-Figueroa alleges that certain statements indicating his
participation in the April 19, 1993 cacería that resulted in the murder
of Pacheco-Aponte were inadmissible hearsay. The trial court admitted
the statements pursuant to Fed. R. Evid. 801(d)(2)(E). This Court
reviews that decision for plain error. See United States v. McCarthy,
961 F.2d 972, 977 (1st Cir. 1992).
-32-
Hearsay statements are inadmissible as a matter of law. See
Fed. R. Evid. 801(c). However, pursuant to Rule 801(d)(2)(E), "a
statement by a coconspirator of a party during the course and in
furtherance of the conspiracy" is not hearsay. To invoke this
evidentiary exception, the movant "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." United States v. Sepúlveda, 15
F.3d 1161, 1180 (1st Cir. 1993); see also Bourjaily v. United States,
483 U.S. 171, 175-76 (1987). In other words, the trial court must
conclude that (1) "it is more likely than not that the declarant and
the defendant were members of a conspiracy when the hearsay statement
was made," and (2) that "the statement was in furtherance of the
conspiracy." United States v. McCarthy, 961 F.2d 972, 977 (1st Cir.
1992) (quoting United States v. Petrozziello, 548 F.2d 20, 23 (1st Cir.
1977)).
In this case, several of the co-conspirators met at the Las
Villas apartments in Dorado following the April 19, 1993 cacería. At
that meeting, El Gato made several incriminating statements. Hidalgo-
Meléndez testified that El Gato was "just like bragging about the way
he had killed Pacheco and explaining, like, he sewed with bullets the
person of Pacheco." El Gato also told Hidalgo-Meléndez that "Erick
[Ortiz-Santiago] and his brother [Ortiz-Figueroa] had not been able to
-33-
come downstairs from the building . . . because one of the persons that
had entered the project to kill the Rosario brothers were shooting at
them." The district court concluded that these statements were
admissible pursuant to Fed. R. Evid. 801(d)(2)(E). We agree.
First, the record contains ample evidence that (1) the
cacerías were conducted in furtherance of the drug conspiracy, and (2)
the declarant and Ortiz-Figueroa were members of that conspiracy when
the hearsay statements were made. Second, El Gato's information
confirmed for Hidalgo-Meléndez what had transpired within the
organization, who had participated in the cacería, and "the people that
[he ran] a risk with." As we have previously stated, "the reporting of
significant events by one coconspirator to another advances the
conspiracy." Sepúlveda, 15 F.3d at 1180. Accordingly, El Gato's
statements were properly admitted into evidence.
Alternatively, we hold that any error in admitting El Gato's
statements was harmless. Ortiz-Figueroa was arrested as he fled the
murder scene at Dávila. At the time of his arrest, police seized a
plethora of incriminating evidence, including a bag containing firearms
and ammunition, a rock of heroin or cocaine, a cellular telephone, a
glove, two masks, and a firearm he was carrying on his person.
Further, the record also contains co-conspirator and police testimony
indicating Ortiz-Figueroa's participation in the cacería. Accordingly,
-34-
we conclude that the outcome of the trial would have been the same
regardless of whether El Gato's statements were admitted.
VIII. Evidence Regarding Collazo-Aponte, Ortiz-Figueroa, and Ortiz-
Santiago's Income Taxes
Appellants allege that the district court erroneously
admitted income tax certificates for Collazo-Aponte, Ortiz-Figueroa,
and Ortiz-Santiago. In support of their argument, appellants cite Fed.
R. Evid. 401, 403, and 404(b). At trial, the prosecution argued that
the absence of tax returns demonstrated the absence of legitimate
income and, therefore, a motive for engaging in the drug conspiracy.
The trial court agreed, ruling (1) the tax returns were relevant to
determine if a defendant alleged to have drug trafficking income
declared any legitimate income, and (2) the tax certificates did not
concern the crime of failing to file tax returns. We review the
district court's evidentiary rulings for abuse of discretion. See
United States v. Houlihan, 92 F.3d 1271, 1297 (1st Cir. 1996); United
States v. Rivera-Gómez, 67 F.3d 993, 997 (1st Cir. 1995).
Even if the trial court did err by admitting the tax
certificates, we nonetheless conclude that, given the overwhelming
proof of appellants' participation in the drug conspiracy, any error
was harmless. See United States v. Sabatino, 943 F.2d 94, 98 (1st Cir.
1991); United States v. Rodríguez-Cardona, 924 F.2d 1148, 1152 (1st
-35-
Cir. 1991). We therefore reject this argument without further
discussion.
IX. The Search of Merced-Morales' Residence
Merced-Morales alleges that the trial court should have
suppressed the evidence seized from his residence and vehicle because
the arresting officers (1) did not knock and announce their presence
before breaking the gate padlock, (2) entered his home after arresting
him outside, and (3) obtained his consent to search under duress.
Appellant's arguments are without merit.
The trial court conducted a mid-trial suppression hearing.
At that time, the following evidence was presented. Merced-Morales was
arrested by a team of law enforcement officers led by DEA Special Agent
German Blanco. Agent Blanco testified that his officers took extra
precautions when executing the arrest warrant for Merced-Morales due to
the violent nature of the organization. Specifically, the agents broke
the padlock on the driveway entrance gate and entered the driveway
without announcing their presence. According to Agent Blanco, he
believed this was necessary (1) to reduce the risk of a surprise attack
by whoever might be in the house and (2) to reduce the likelihood that
anyone in the house could flee. After the officers proceeded to safer
positions near the main entrance and the sides of the house, Agent
Blanco began knocking on the main entrance gate and announced his
presence. When Merced-Morales came down the stairs inside the house,
-36-
Agent Blanco ordered him to open the gate and the wooden door behind
it.
When Merced-Morales opened the door, the police team entered
his residence and initiated a protective sweep. Contemporaneously,
Agent Blanco advised Merced-Morales of his constitutional rights in
Spanish, using DEA Form 13A. According to Agent Blanco's testimony,
Merced-Morales stated that he understood his rights. Agent Blanco
further testified that there were no guns aimed at Merced-Morales, the
officers did not threaten him, and he did not appear to be under the
influence of drugs or alcohol. Merced-Morales then verbally consented
to a search of his residence, and he signed a written consent form in
Spanish after both he read it and Agent Blanco read it to him. The
officers then seized a revolver, drug paraphernalia, marijuana, and a
list of firearms.
The defense presented contrary testimony. Merced-Morales'
sister testified that the lock on the wooden front door was broken and
there was damage to the door jamb following the arrest. She added that
Merced-Morales had told her that the police entered the house by
forcing open the front door. Merced-Morales testified that he was
awakened by police pounding on his door. When he approached the door,
police aimed a rifle at him through an open window, ordered him not to
move, and then broke in through the door. Merced-Morales alleged he
was then forced to sign a consent form at gunpoint and was informed
-37-
that the searches would proceed even if he refused to sign. He further
stated that as police officers escorted him out of the house, he saw
that the doorlock and the edge of the door were broken. On cross-
examination, Merced-Morales testified that he had seen a crow bar and
a sledgehammer only as officers returned them to a police vehicle and
that the door showed no marks from a sledgehammer.
After hearing all of the evidence, the district court ruled
that (1) the agents lawfully broke the padlock on the driveway gate due
to exigent circumstances, namely the organization's known violence, (2)
agents announced their presence as soon as their safety was less
compromised, and (3) Merced-Morales opened his door with no breaking or
entering by police. While this Court reviews factual determinations
supporting the denial of suppression motions for clear error, see
United States v. Twomey, 884 F.2d 46, 51-52 (1st Cir. 1989), we review
de novo whether exigent circumstances justify entry without notice, cf.
United States v. Tibolt, 72 F.3d 965, 969 (1st Cir. 1995) ("[W]hether
a particular set of circumstances gave rise to . . . 'exigent
circumstances' is reviewed de novo and findings of fact are reviewed
for clear error."); United States v. Gooch, 6 F.3d 673, 679 (9th Cir.
1993) ("We review de novo whether exigent circumstances justify a
warrantless arrest or seizure."); United States v. Echegoyen, 799 F.2d
1271, 1277-78 (9th Cir. 1986) ("The ultimate issue of whether exigent
circumstances justify a warrantless entry and/or search is resolved
-38-
under the de novo standard."). "Where, as here, there are no explicit
factual findings, the record below is assessed in the light most
favorable to the trial court ruling." Tibolt, 72 F.3d at 969.
First, we reject Merced-Morales' argument that the search of
his residence and automobile was unlawful in light of the agents'
failure to knock and announce. The Supreme Court has held:
[F]or Fourth Amendment purposes, an arrest
warrant founded on probable cause implicitly
carries with it the limited authority to enter a
dwelling in which the suspect lives when there is
reason to believe the suspect is within.
Payton v. New York, 445 U.S. 573, 603 (1980); see also Steagald v.
United States, 451 U.S. 204, 214 n.7, 221 (1981) ("Because an arrest
warrant authorizes the police to deprive a person of his liberty, it
necessarily also authorizes a limited invasion of that person's privacy
interest when it is necessary to arrest him in his home."). As a
general rule, officers must give notice of their authority and purpose
before entering private premises to make an arrest. See Wilson v.
Arkansas, 514 U.S. 927, 930 (1995) (holding common law
knock-and-announce principle forms part of the Fourth Amendment
reasonableness inquiry). However, the so-called knock-and-announce
rule is not without its exceptions. Specifically, entry without notice
to execute an arrest warrant is permissible when notice would
jeopardize the safety of the officers. See Ker v. California, 374 U.S.
23, 39-40 (1963) (holding Fourth Amendment not violated by failure to
-39-
announce where compliance would have increased officer's peril); cf.
Fletcher v. Town of Clinton, 196 F.3d 41, 49 (1st Cir. 1999) ("[T]hreat
to police or the public safety is sufficient to create exigent
circumstances." (internal quotation omitted)). In addition, we note
that "the Supreme Court's standard of reasonableness [for Fourth
Amendment purposes] is comparatively generous to the police in cases
where potential danger, emergency conditions or other exigent
circumstances are present." Roy v. Inhabitants of Lewiston, 42 F.3d
691, 695 (1st Cir. 1994).
Accordingly, Agent Blanco and his officers had a right to
enter Merced-Morales' residence in order to execute the warrant for his
arrest. See Payton, 445 U.S. at 602-03; Steagald, 451 U.S. at 214 n.7,
221. Further, the officers knocked and announced their presence once
they had obtained safe positions near the main entrance and the sides
of the house. If the officers had announced their presence prior to
entering the driveway gate, the officers would have been exposed to any
threat emanating from the house. The record contains ample evidence
that the officers knew Merced-Morales was a member of a well-armed and
extremely violent drug organization. Under these circumstances, we
hold that the authorities' failure to knock and announce prior to
breaking the padlock on the driveway entrance gate was justified by
exigent circumstances. See Ker, 374 U.S. at 39-40; see also Tibolt, 72
-40-
F.3d at 969 (stating exigent circumstances include situations posing a
threat to police).
Next, we turn to Merced-Morales' contention that the police
arrested him outside of his house. This version of events is contrary
to Merced-Morales' testimony before the district court that the police
broke down his door. Accordingly, this argument has been waived. “A
litigant cannot jump from theory to theory like a bee buzzing from
flower to flower. To the precise contrary, when a party fails to raise
a theory at the district court level, that theory is generally regarded
as forfeited and cannot be advanced on appeal.” United States v.
Torres, 162 F.3d 6, 11 (1st Cir. 1998); see also United States v.
Slade, 980 F.2d 27, 30 (1st Cir. 1992) ("It is a bedrock rule that when
a party has not presented an argument to the district court, she may
not unveil it in the court of appeals.").
Finally, we affirm the district court's finding that the
search of Merced-Morales' residence and vehicle was consensual. The
voluntariness of consent is a question of fact determined by the
totality of the circumstances. See United States v. Mendenhall, 446
U.S. 544, 557 (1980); Schneckloth v. Bustamonte, 412 U.S. 218, 226, 227
(1973); United States v. Barnett, 989 F.2d 546, 554 (1st Cir. 1993).
Among other factors, a district court must consider "whether the
consenting party was advised of his or her constitutional rights and
whether permission to search was obtained by coercive means or under
-41-
inherently coercive circumstances." Barnett, 989 F.2d at 555; see also
Schneckloth, 412 U.S. at 226; United States v. Twomey, 884 F.2d 46,
51-52 (1st Cir. 1989). "Although sensitivity to the heightened
possibility of coercion is appropriate when a defendant's consent is
obtained during custody, see Schneckloth, 412 U.S. at 240, n.29,
'custody alone has never been enough in itself to demonstrate . . .
coerced . . . consent to search.'" Barnett, 989 F.2d at 555 (quoting
United States v. Watson, 423 U.S. 411, 424 (1976)). Here, Agent
Blanco's testimony contradicted Merced-Morales' allegation of being
coerced and held at gunpoint. The trial court observed both witnesses
and determined that Agent Blanco's testimony was more credible. Where,
as here, "there are two competing interpretations of the evidence, the
district court's choice of one of them cannot be clearly erroneous."
United States v. Cruz Jiménez, 894 F.2d 1, 7 (1st Cir. 1990); see also
United States v. Zapata, 18 F.3d 971, 974 (1st Cir. 1994) (holding
trial judge's denial of a suppression motion is entitled to
considerable deference because he had opportunity to hear testimony,
observe witness demeanor, and evaluate facts first hand). Accordingly,
we conclude that appellant's arguments on this issue are without merit.
X. Evidence Seized at the Time of Merced-Morales' Arrest
Merced-Morales argues that the evidence seized at the time
of his arrest should have been suppressed because: (1) the drug
-42-
conspiracy ended in 1995 when certain members of the Santiago-Lugo
organization were arrested, and therefore the evidence was inadmissable
pursuant to Fed. R. Evid. 404(b); and (2) the risk of undue prejudice
outweighed the probative value of the evidence pursuant to Fed. R.
Evid. 403. We review for abuse of discretion. See Houlihan, 92 F.3d
at 1297; Rivera-Gómez, 67 F.3d at 997. Finding no error, we affirm the
ruling of the district court.
There is no evidence in the record that the drug conspiracy
involved in this case ended prior to the arrest of Merced-Morales. The
law on this question is settled: "Where a conspiracy contemplates a
continuity of purpose and a continued performance of acts, it is
presumed to exist until there has been an affirmative showing that it
has terminated." E.g., United States v. Elwell, 984 F.2d 1289, 1293
(1st Cir. 1993). Contrary to appellant's assertion, the arrest of some
co-conspirators does not automatically terminate a conspiracy. See,
e.g., United States v. Mealy, 851 F.2d 890, 901 (7th Cir. 1988) ("A
co-conspirator's arrest does not automatically terminate a conspiracy;
the remaining conspirators may continue to carry out the goals of the
conspiracy notwithstanding the arrest of one of their partners.");
United States v. Thompson, 533 F.2d 1006, 1010 (6th Cir. 1976) (same).
In addition, there is no evidence in the record that Merced-
Morales withdrew from the conspiracy prior to his arrest. "To
withdraw, a conspirator must take some affirmative action 'either to
-43-
defeat or disavow the purposes of the conspiracy.'" United States v.
Muñoz, 36 F.3d 1229, 1234 (1st Cir. 1994) (quoting United States v.
Juodakis, 834 F.2d 1099, 1102 (1st Cir. 1987)). Since the record does
not indicate that Merced-Morales withdrew from the drug conspiracy, and
since the drug paraphernalia and firearms list were consistent with his
involvement in the conspiracy, the trial court did not err by admitting
these items into evidence.
XI. Withdrawal of the Firearm Seized From Merced-Morales' Vehicle
Merced-Morales argues that the trial court erred when it
denied his motion for a mistrial. Merced-Morales moved for a mistrial
when the court withdrew from evidence a revolver seized from his
vehicle at the time of his arrest. We review a trial court's refusal
to grant a mistrial for abuse of discretion; absent a clear showing of
prejudice, we will uphold the lower court's ruling. See United States
v. Zanghi, II, 189 F.3d 71, 82 (1st Cir. 1999); United States v. Gomes,
177 F.3d 76, 82 (1st Cir. 1999).
We briefly review the facts relevant to this argument. The
police arrested Merced-Morales at his residence. After the authorities
had properly informed him of his constitutional rights, Merced-Morales
consented to a search of his house and vehicle. Pursuant to this
search, the police seized a revolver. At trial, the court initially
admitted the weapon into evidence. However, at the close of the
prosecution's case, the trial judge requested additional information.
-44-
At that time, the prosecution requested that the firearm be withdrawn
from evidence. The court agreed, and the trial judge reversed his
prior admissibility ruling. Merced-Morales then moved for a mistrial,
but the court denied the motion.
Before Merced-Morales' trial counsel began his deferred opening
statement, the judge instructed the jury that rulings on the
admissibility of evidence could change during the course of trial and
that the jury could not consider excluded evidence. With respect to
the revolver, the judge stated:
[T]he gun will not be in evidence any further,
since I have now found that the possession of
this particular revolver is too remote in time to
the conspiracy as to be related to the conspiracy
. . . . [Y]ou cannot consider this gun as
evidence, and I instruct you to disregard that
particular revolver that was seized in his car at
the time of his arrest.
We have previously stated that "[t]rials are expected to be
fair, but not necessarily perfect; and appeals courts are slow to
insist on mistrials, even in cases where [improper evidence] may
actually convey prejudicial information." Gomes, 177 F.3d at 82.
Where, as here, "a curative instruction is promptly given, a mistrial
is warranted only in rare circumstances implying extreme prejudice."
United States v. Torres, 162 F.3d 6, 12 (1st Cir. 1998); see also
United States v. Magana, 127 F.3d 1, 6 (1st Cir. 1997) ("Jurors are
presumed to follow [curative] instructions, except in extreme cases.").
-45-
Here, the judge instructed the jury on the inadmissibility of the
revolver prior to the deferred opening statement of counsel for Merced-
Morales. This allowed the jury to connect the judge's revised ruling
on this one piece of evidence directly with Merced-Morales. The
revolver, moreover, has little significance: the record contains ample
evidence of appellant's guilt, including the testimony of two
cooperating eyewitnesses. See Rivera-Gómez, 67 F.3d at 999 ("[T]he
strength of the government's overall case is frequently a cardinal
factor in evaluating the denial of a mistrial motion."). Under these
circumstances, we conclude that Merced-Morales has not demonstrated
extreme prejudice, and therefore this argument fails. See Torres, 162
F.3d at 12.
XII. Delayed Disclosure that a Government Witness Failed to Identify
Ríos-Ríos in a Pre-Trial Photograph Array
Ríos-Ríos alleges that the district court should have
sanctioned the prosecution for failing to timely disclose that Hidalgo-
Meléndez failed to identify Ríos-Ríos in a pretrial photograph array.
A district court's decision on how to handle delayed disclosure of
Brady material is reviewed for abuse of discretion. See United States
v. Catano, 65 F.3d 219, 227 (1st Cir. 1995).
Prosecutors have an obligation to furnish exculpatory and
impeachment information to the defense in a timely fashion. See Brady
v. Maryland, 373 U.S. 83, 87 (1963). Where the defense is confronted
-46-
not with complete suppression, but rather with delayed disclosure, "the
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." United States v. Ingraldi, 793 F.2d 408, 411-12
(1st Cir. 1986); see also Catano, 65 F.3d at 227. In United States v.
Ayres, 725 F.2d 806, 811 (1st Cir. 1984), we held that there was no
prejudice when disclosure of a failed photograph identification
attempt, although delayed, was sufficiently timely for cross-
examination of the witness.
Here, Hidalgo-Meléndez testified that Ríos-Ríos was someone
who once delivered cocaine to Santiago-Lugo. The day after this
testimony was given, the prosecution belatedly disclosed that Hidalgo-
Meléndez had failed to identify Ríos-Ríos in a pretrial photo array.
The judge concluded that although the government should have informed
Ríos-Ríos at the time of the in-court identification, it would not
preclude the government from eliciting the information during Hidalgo-
Meléndez's direct examination. Thereafter, the failed identification
attempt was introduced first by the prosecution on direct examination,
and then again by defense counsel on cross-examination. In addition,
the judge instructed the jury that (1) a prior failure to identify was
relevant to a witness' credibility, and (2) the prosecution had the
burden of proving the identity of the defendant. Under these
circumstances, we conclude that Ríos-Ríos cannot show prejudice from
-47-
the delayed disclosure. Therefore, this argument fails. See, e.g.,
Ayres, 725 F.2d at 811.
XIII. The Prosecution's Failure to Turn Over the Sworn Statement of
Officer Burgos
Ríos-Ríos alleges that the district court erred in concluding
that the prosecution had no obligation to turn over the sworn statement
of Officer Burgos. The district court ruled that Officer Burgos' sworn
statement regarding Ortiz-Santiago's arrest was not discoverable as
Jencks Act material, see 18 U.S.C. § 3500, since the government could
not obtain it from the Commonwealth of Puerto Rico office that had
created and maintained it. We see no error in this determination.
See, e.g., United States v. Durham, 941 F.2d 858, 861 (9th Cir. 1991)
("Under the Jencks Act, the prosecutor is required to disclose only
those statements which are in the possession of the United States.");
United States v. Polizzi, 801 F.2d 1543 (9th Cir. 1986) (same).
XIV. Cooperating Witness Instruction
A. Merced-Morales' Argument
Merced-Morales argues that the trial judge's decision not to
use his proposed jury instruction regarding the cooperating witnesses
Ibáñez-Maldonado, Ramos-Rodríguez, and Hidalgo-Meléndez violated his
right to a fair trial and due process of law. The instruction proposed
by Merced-Morales stated:
It is inappropriate to hold a defendant in prison
for long periods of time pending sentencing while
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the government extracts information from him
[because] this practice increases the likelihood
that innocent individuals will be implicated by
defendant trying to placate the government.
Merced-Morales did not object at the charge conference or after the
judge instructed the jury.
In this Circuit, "[i]t is reversible error for the court to
refuse a request to instruct as to defendant's theory of the case if
there is evidence to support it." United States v. Thomas, 895 F.2d
51, 55 (1st Cir. 1990) (quoting United States v. Leach, 427 F.2d 1107,
1112-13 (1st Cir. 1970)). However, the refusal to give a particular
requested instruction is reversible error only if "the instruction (1)
is substantively correct; (2) was not substantially covered in the
charge actually delivered to the jury; and (3) concerns an important
point in the trial so that the failure to give it seriously impaired
the defendant's ability to effectively present a given defense."
United States v. Gibson, 726 F.2d 869, 874 (1st Cir. 1984) (quoting
United States v. Grissom, 645 F.2d 461, 464 (5th Cir. 1981)).
Consequently, "[t]he court need not give instructions in the form and
language requested by the defendant." United States v. Morris, 700
F.2d 427, 433 (1st Cir. 1983).
With regard to testimony given by an accomplice, this Court
has stated:
It is well established that an accomplice is
qualified to testify as long as any agreements he
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has made with the government are presented to the
jury and the judge gave complete and correct
instructions detailing the special care the jury
should take in assessing the testimony.
United States v. Hernández, 109 F.3d 13, 15 (1st Cir. 1997) (internal
quotation omitted).
Here, the trial judge instructed the jury to examine the
testimony of an alleged accomplice "who provides evidence against a
defendant for personal advantage under a plea agreement . . . with
greater care and caution than the testimony of an ordinary witness."
The judge further instructed the jury (1) that they must consider such
a witness's sentencing expectations and (2) that it is improper to
convict any defendant "upon the unsupported testimony of such witness
unless you believe the testimony beyond a reasonable doubt." We
conclude that the judge properly instructed the jury on issues of
credibility and reject appellant's allegation of error. See, e.g.,
Hernández, 109 F.3d at 15; Gibson, 726 F.2d at 874.
B. Collazo-Aponte's Argument
Collazo-Aponte raises a closely related argument regarding
the testimony of Wilfredo and David Martínez-Matta. Namely, Collazo-
Aponte contends that the Martínez-Mattas' post-conviction cooperation
agreements violated 18 U.S.C. § 201(c)(2), and therefore the district
court should have excluded their testimony. This Court has squarely
rejected this argument: "We hold, without serious question, that 18
-50-
U.S.C. § 201(c)(2) does not bar the government from promising leniency
or the like to cooperating witnesses." United States v. Lara, 181 F.3d
183, 198 (1st Cir. 1999); see also United States v. Falú-González, 205
F.3d 436, 445 (1st Cir. 2000). Accordingly, the district court did not
err in admitting the contested testimony.
XV. Multiple Conspiracy Instruction
Collazo-Aponte and Merced-Morales allege that they suffered
prejudice because the trial judge did not give a multiple conspiracies
instruction. As appellants correctly indicate, this case involved two
conspiracies -- the first was the drug conspiracy (Count 1), the second
was the conspiracy to kill the Rosario-Rodríguez brothers (Count 51).
Appellants were not charged in Count 51, and no evidence linked either
Collazo-Aponte or Merced-Morales to the cacerías undertaken to kill the
Rosario-Rodríguez brothers.
As we indicated above, "[i]t is reversible error for the
court to refuse a request to instruct as to defendant's theory of the
case if there is evidence to support it." Thomas, 895 F.2d at 55.
However, "the defendant must tender an instruction that is appropriate
in form and substance. Where he fails to accomplish this, the court is
not obligated to give an instruction unless a particularly sensitive
defense is involved, or the facts adduced at trial are so complex and
confusing that an understanding of the issues would be beyond the grasp
of the jury." Id.
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Here, the record shows that neither Collazo-Aponte nor
Merced-Morales proposed a multiple conspiracies instruction. Further,
this is not a case involving "a particularly sensitive defense . . . or
. . . issues . . . beyond the grasp of the jury." Id. Accordingly,
"our review will be confined to determining whether the judge's
omission to instruct on multiple conspiracies constituted plain error."
Id. We stated in Thomas that "[t]he test for such error is whether
there was a variance between the conspiracy charged in the indictment
and the one implicating the defendant according to the evidence adduced
at trial which prejudiced the substantial rights of the accused." Id.
Under the test we formulated in Thomas, the essential inquiry "is
whether the evidence is sufficient to permit a jury to find the
agreement that the indictment charges." Id. at 56.
In this case, the record contains ample evidence of
appellants' involvement in the drug conspiracy charged in Count 1.
This evidence has no relation to the cacerías and is more than
sufficient to convict appellants. In addition, the evidence involving
the cacerías and the ensuing murders directly implicates appellants in
the drug conspiracy. As the prosecution correctly indicates, the
cacerías were initiated to restore and maintain the integrity of the
drug conspiracy. Although the defendants who participated in the
cacerías also reached an agreement to murder in violation of 21 U.S.C.
§ 848(e), those murders were inextricably linked to and committed in
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furtherance of the drug conspiracy. See United States v. Miller, 116
F.3d 641, 682 (2d Cir. 1997). Finally, the judge appropriately
instructed the jury to separately consider each defendant's case. See,
e.g., United States v. Brandon, 17 F.3d 409, 449 (1st Cir. 1994);
United States v. Boylan, 898 F.2d 230, 244 (1st Cir. 1990). Under
these circumstances, we conclude that appellants have failed to
demonstrate any prejudice arising from the lower court's decision not
to give a multiple conspiracy instruction.
XVI. Sufficiency of the Evidence
In this Circuit, "[o]ne who challenges the sufficiency of the
evidence bears a heavy burden: he must show that no rational jury
could have found him guilty beyond a reasonable doubt." United States
v. Rodríguez, 162 F.3d 135, 141 (1st Cir. 1998). In evaluating a
sufficiency of the evidence claim, we review "the evidence as a whole,
in a light most favorable to the verdict, taking into consideration all
reasonable inferences." United States v. Scantleberry-Frank, 158 F.3d
612, 616 (1st Cir. 1998). Further, "[w]e resolve all credibility
issues in favor of the verdict." Id.; see also United States v. Hahn,
17 F.3d 502, 506 (1st Cir. 1994); United States v. Batista-Polanco, 927
F.2d 14, 17 (1st Cir. 1991). Accordingly, "[t]he evidence may be
entirely circumstantial, and need not exclude every hypothesis of
innocence; that is, the factfinder may decide among reasonable
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interpretations of the evidence." Scantleberry-Frank, 158 F.3d at 616
(quoting Batista-Polanco, 927 F.2d at 17).
A. Martínez-Vélez's Conviction on Count 1
Martínez-Vélez alleges that there was insufficient evidence
to support his conviction on Count 1. Specifically, he argues that his
participation in the 1994 Easter cacería that resulted in the murder of
two motorcyclists did not establish his participation in the drug
conspiracy. In making this argument, Martínez-Vélez attacks the
credibility of government witness Ibáñez-Maldonado. We conclude that
this argument is without merit.
"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." United States v. Sepúlveda, 15 F.3d 1161, 1173 (1st Cir.
1993). "Due to the clandestine nature of criminal conspiracies, the
law recognizes that the illegal agreement may be either express or
tacit and that a common purpose and plan may be inferred from a
development and collocation of circumstances." United States v.
Sánchez, 917 F.2d 607, 610 (1st Cir. 1990) (internal quotation
omitted). Accordingly, we have previously stated that "proof may
consist of circumstantial evidence, including inferences from
surrounding circumstances, such as acts committed by the defendant that
-54-
furthered the conspiracy's purposes." United States v. Gómez-Pabón,
911 F.2d 847, 853 (1st Cir. 1990).
Here, Ibáñez-Maldonado testified that Martínez-Vélez
participated in the meeting at the King's Court mesa, the ensuing
cacería, and the murder of the two motorcyclists in April of 1994. The
evidence, consequently, shows that (1) appellant met with other
conspirators at a Santiago-Lugo drug mesa, (2) appellant willingly
joined members of the Santiago-Lugo organization in planning a cacería
against the Rosario-Rodríguez brothers, and (3) during this cacería,
appellant participated in killing two individuals who were members of
a rival drug organization. As we have stated, the record contains
abundant evidence that the cacerías were undertaken in order to regain
control over the Dávila drug distribution point. Accordingly, we
conclude that the jury could reasonably infer that Martínez-Vélez was
a member of the Count 1 drug conspiracy and was prepared to kill to
protect the conspiracy's interests. See United States v. Mangual-
Corchado, 139 F.3d 34, 44 (1st Cir. 1998) ("[T]he jury is entitled to
rely on a chain of reasonable inferences, as long as each constituent
inference is rooted in the evidence."). In reaching this result, we
note that "proof of direct participation in the sale of drugs is not
required to convict in a drug conspiracy case." United States v.
Marrero-Ortiz, 160 F.3d 768, 773 (1st Cir. 1998).
-55-
We also reject the challenge to Ibáñez-Maldonado's
credibility. We have previously stated, "[c]redibility is not an issue
for the appellate court." United States v. Aponte-Suárez, 905 F.2d
483, 489 (1st Cir. 1990). Here, Ibáñez-Maldonado's testimony, even if
uncorroborated, was sufficient to support appellant's conviction
because "it was not incredible or insubstantial on its face." Id.
Accordingly, we conclude that Martínez-Vélez has failed to demonstrate
that no rational jury could have found him guilty beyond a reasonable
doubt.
B. The Statute of Limitations Argument Raised by Ríos-Ríos
Ríos-Ríos alleges that the evidence adduced at trial
established his involvement in the drug conspiracy only in 1990-91,
which is outside the statute of limitations period. Ríos-Ríos did not
raise this argument before the trial court. Consequently, this
argument is waived. See United States v. Barnett, 989 F.2d 546, 554
(1st Cir. 1993) ("Issues not squarely raised in the district court will
not be entertained on appeal."); United States v. Haggert, 980 F.2d 8,
10-11 (1st Cir. 1992) (collecting cases).
Even if this argument had been properly preserved for appeal,
we see no merit in it. Martínez-Matta and Hidalgo-Meléndez testified
that Ríos-Ríos participated in the drug conspiracy while it operated at
the Costa del Mar and Los Pinos mesas in 1990 and 1991. There is no
-56-
evidence in the record that Ríos-Ríos subsequently withdrew from the
conspiracy. Accordingly, this argument fails as a matter of law:
A mere cessation of activity in furtherance of a
conspiracy does not constitute withdrawal. To
withdraw, a conspirator must take some
affirmative action either to defeat or disavow
the purposes of the conspiracy. Typically, we
have required evidence either of a full
confession to authorities or a communication by
the accused to his co-conspirators that he has
abandoned the enterprise and its goals.
Muñoz, 36 F.3d at 1234 (quotations and citations omitted). Since Ríos-
Ríos did not withdraw from the conspiracy, the statute of limitations
did not begin to run. See United States v. Rogers, 102 F.3d 641, 644
(1st Cir. 1996).
C. Rosario-Rodríguez's Motion for Judgment of Acquittal
Rosario-Rodríguez alleges that the district court erroneously
denied his motion for judgment of acquittal because the evidence was
insufficient to sustain his conviction for conspiracy to distribute
narcotics. See 21 U.S.C. §§ 841, 846. We review the denial of a
motion for judgment of acquittal de novo. See United States v.
Hernández, 146 F.3d 30, 32 (1st Cir. 1998). Having carefully reviewed
the record, we conclude that this argument is meritless.
First, the record is replete with evidence of Rosario-
Rodríguez's role in controlling the crack cocaine distribution at the
Dávila housing project. Second, his role in obtaining heroin for
street dealers was established not only through the testimony of Ramos-
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Rodríguez but also through the Santiago-Lugo drug ledgers. Third,
Ramos-Rodríguez testified that Rosario-Rodríguez carried a firearm to
protect the Dávila drug point. Finally, at the time of Rosario-
Rodríguez's arrest, police seized from his person a Calico pistol, over
$1,000 cash, and a bag filled with transparent vials which field-tested
positive for cocaine.
As the prosecution indicates, this evidence is more than
sufficient for a rational jury to find that (1) the charged conspiracy
existed, (2) Rosario-Rodríguez agreed expressly or tacitly to
participate in it, and (3) he had the requisite intent to possess
narcotics with the intent to distribute. See Sepúlveda, 15 F.3d at
1173; Sánchez, 917 F.2d at 610.
D. Colón-Miranda's Sufficiency of Evidence Claims
Colón-Miranda argues that there was insufficient evidence to
establish the existence of a drug conspiracy, his participation in a
drug conspiracy, or his participation in the Pacheco-Aponte or Cotto-
Fuentes murders.3 As we have already indicated, a sufficiency of the
evidence claim is reviewed "in [the] light most favorable to the
verdict, taking into consideration all reasonable inferences."
3 Colón-Miranda also argues that the evidence was insufficient to
convict him of murdering Muñoz-Candelaria and violating 21 U.S.C. §
848. The record indicates that he was not charged with either offense.
-58-
Scantleberry-Frank, 158 F.3d at 616. Here, even a cursory examination
of the record demonstrates that appellant's arguments are disingenuous.
First, there is ample evidence in the record of the Count 1
drug conspiracy. Five co-conspirators described the Santiago-Lugo
organization and its extensive drug processing, packaging, and
distribution activities. These witnesses gave a detailed account of
the quantity of drugs involved, and one drug ledger established that
sales totaled $3.5 million for a single year. Second, the witnesses
all testified that they worked with Colón-Miranda at various times
during the conspiracy. In addition, Wilfredo Martínez-Matta testified
that Colón-Miranda rented the Coral Beach mesa, and Ramos-Rodríguez
described Colón-Miranda as a supervisor of the organization. Three
other witnesses indicated that Colón-Miranda made armed deliveries of
drugs to the distribution points. Third, the testimony of Hidalgo-
Meléndez, Wilfredo Martínez-Matta, and David Martínez-Matta contradicts
Colón-Miranda's claim that he was not at the Pacheco-Aponte murder
scene. Finally, ballistic evidence established that the firearm found
by the police in Colón-Miranda's car was the firearm used to kill
Cotto-Fuentes.
E. Insufficiency of Evidence Arguments Raised by Ortiz-
Figueroa and Ortiz-Santiago4
4 Because the insufficiency of the evidence arguments raised by Ortiz-
Figueroa and Ortiz-Santiago involve the same set of facts, we have
elected to address these two arguments together.
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Ortiz-Figueroa argues that there is insufficient evidence to
uphold his conviction on Counts 51, 53, and 65. See 21 U.S.C. §§ 846,
848(e)(1)(A); 18 U.S.C. §§ 2, 924(c). Specifically, he states that no
evidence linked him to the planning of the cacería that resulted in the
murder of Pacheco-Aponte, and no evidence linked the firearms seized
from him at the time of his arrest with the actual murder or the drug
conspiracy.
Similarly, Ortiz-Santiago raises an insufficiency of the
evidence argument against his conviction on Count 53. See 21 U.S.C. §
848(e)(1)(A); 18 U.S.C. § 2. He contends that (1) the Pacheco-Aponte
murder was neither reasonably foreseeable nor in furtherance of the
conspiracy to kill the Rosario-Rodríguez brothers, and consequently
Pinkerton liability does not apply; and (2) the evidence did not show
that he aided and abetted the Pacheco-Aponte murder because he did not
assist with it or actively seek its occurrence. Neither appellant
raises a colorable claim.
Hidalgo-Meléndez testified that Ortiz-Santiago spoke to
Colón-Miranda by telephone while Colón-Miranda and other co-
conspirators planned the cacería that resulted in the murder of
Pacheco-Aponte. At that time, Ortiz-Santiago agreed that he and Ortiz-
Figueroa would act as scouts, informing Colón-Miranda of the location
of the Rosario-Rodríguez brothers "for the time that we were going to
go into the housing project to kill them." This testimony was
-60-
partially corroborated by David Martínez-Matta. Further testimony
given by various government witnesses indicated that Ortiz-Santiago and
Ortiz-Figueroa were present at the cacería and that fellow co-
conspirator David Martínez-Matta mistakenly shot at them. In addition,
Ortiz-Santiago and Ortiz-Figueroa were arrested as they fled from the
crime scene. Appellants' clothing matched a bystander's description of
the culprits, and the arresting officer seized firearms, ammunition, a
cellular telephone, narcotics, and two masks (one stained with blood)
from Ortiz-Figueroa.
Based on this evidence, Ortiz-Figueroa cannot show that "no
rational jury could have found him guilty beyond a reasonable doubt."
Rodríguez, 162 F.3d at 141. As we have already stated, "the
factfinder may decide among reasonable interpretations of the
evidence." Scantleberry-Frank, 158 F.3d at 616 (quotation omitted).
Here, there is sufficient circumstantial evidence to raise a reasonable
inference that Ortiz-Figueroa was a knowing and voluntary participant
in the conspiracy to kill the Rosario-Rodríguez brothers. See id.
Accordingly, we reject appellant's claim of mere presence and uphold
his conviction on Count 51. See, e.g., United States v. Echeverri, 982
F.2d 675, 678 (1st Cir. 1993) ("The attendant circumstances tell the
tale -- and the culpability of a defendant's presence hinges upon
whether the circumstances fairly imply participatory involvement. In
other words, a defendant's 'mere presence' argument will fail in
-61-
situations where the 'mere' is lacking."); Batista-Polanco, 927 F.2d at
18 ("[I]t runs counter to human experience to suppose that criminal
conspirators would welcome innocent nonparticipants as witnesses to
their crimes.").
The evidence outlined above is equally conclusive as to both
of these appellants' convictions on Count 53 for the murder of Pacheco-
Aponte. While the government argues that aider and abettor liability
is applicable, we rely on Pinkerton v. United States, 328 U.S. 640,
645-48 (1946). In Pinkerton, the Supreme Court held that a conspirator
may be held vicariously liable for a substantive crime committed by a
co-conspirator if that crime is reasonably foreseeable and committed in
furtherance of the conspiracy. See id.; see also United States v.
Shea, 150 F.3d 44, 50 (1st Cir. 1998); United States v. Tse, 135 F.3d
200, 206 (1st Cir. 1998); United States v. White, 116 F.3d 948, 951
(1st Cir. 1997).
Count 51 alleged an agreement to kill the Rosario-Rodríguez
brothers "and other individuals whom the defendants herein believed to
be associated with [them]." Ortiz-Santiago concedes his participation
in the Count 51 conspiracy. And, as we have just concluded, there is
sufficient circumstantial evidence to tie Ortiz-Figueroa to this
conspiracy as well. The record, moreover, is conclusive that (1) the
cacería that resulted in the murder of Pacheco-Aponte was undertaken to
kill the Rosarios, (2) Ortiz-Santiago and Ortiz-Figueroa were present
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and participated in this cacería, (3) the murder victim, Pacheco-
Aponte, was an associate of the Rosarios, and (4) during the cacería,
appellants and their co-conspirators were heavily armed. (Witnesses
for the prosecution testified that some co-conspirators were armed with
AR-15 rifles, and police responding to the scene recovered over 100
casings fired from AR-15 rifles.) Under these circumstances, a
rational jury could conclude that the Pacheco-Aponte murder was
reasonably foreseeable and committed in furtherance of the conspiracy
to kill the Rosarios and their associates. Accordingly, we uphold
appellants' convictions on Count 53.5
Finally, with respect to the 18 U.S.C. § 924(c) charge, the
record reflects that (1) the cacerías were undertaken as part of the
drug war over the Dávila drug distribution point, (2) Ortiz-Figueroa
participated in the cacería that resulted in the murder of Pacheco-
Aponte, and (3) Ortiz-Figueroa was arrested immediately after Pacheco-
Aponte was murdered in the vicinity of the crime with multiple firearms
on his person. Ortiz-Figueroa does not contest his possession of the
firearms or challenge the sufficiency of the evidence linking him to
the Count 1 drug conspiracy. Contrary to appellant's belief, it is
irrelevant that the firearms in his possession were not used to kill
5 We note that appellants' convictions for Count 53 could also be
affirmed by applying Pinkerton liability to the Count 1 drug
conspiracy. We need not determine whether the appellants could also be
held guilty for aiding and abetting as the government urges.
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Pacheco-Aponte. It is enough that appellant carried the firearms
during the cacería and therefore used the weapons in furtherance of
the drug conspiracy. See 18 U.S.C. § 924(c). Accordingly, we affirm
Ortiz-Figueroa's conviction under Count 65.
F. Merced-Morales and Collazo-Aponte's Sufficiency of the
Evidence Arguments Regarding Pinkerton Liability under
18 U.S.C. § 924(c)
There is no dispute that Pinkerton liability may apply to a
violation of 18 U.S.C. § 924(c). See, e.g., United States v. Shea, 150
F.3d 44, 50 (1st Cir. 1998) ("Pinkerton liability attaches to the
use-or-carrying-of-a-firearm offense proscribed in § 924(c).").
Merced-Morales, however, alleges that the district court erred in
denying his Rule 29 motion on Count 65 because there is no evidence
that he used or carried a firearm at any time or that a co-conspirator
did so during Merced-Morales' membership in the conspiracy. Similarly,
Collazo-Aponte contends that there is no direct evidence that he
possessed a firearm or was aware that any other co-conspirator used or
carried a firearm. Collazo-Aponte raises two additional arguments
against his conviction on Count 65: (1) Pinkerton liability violates
his due process rights because he was a minor participant in the drug
conspiracy, and (2) the trial judge improperly instructed the jury on
aiding and abetting as an alternative theory of liability. Neither
appellant raises a viable argument.
-64-
The record contains considerable evidence that both
appellants belonged to the Santiago-Lugo drug conspiracy when other
members of the organization carried firearms in furtherance of the
conspiracy and that such conduct was reasonably foreseeable to
appellants. First, Wilfredo Martínez-Matta testified that the
organization began storing heroin and cocaine at Merced-Morales' bar
when the Rosario conflict began in early 1993. The record is replete
with evidence that various members of the organization were armed
during the subsequent drug war that took place between May 19, 1993 and
June 22, 1994. Second, both of the Martínez-Matta brothers testified
that Merced-Morales was involved in routine drug deliveries and
pickups. (Wilfredo also placed Merced-Morales at the bar with
Santiago-Lugo on many occasions prior to the Rosario conflict and at
the 1992 funeral of Santiago-Lugo's father.) Third, Wilfred Martínez-
Matta testified that Collazo-Aponte was involved in various drug
transactions that occasionally involved up to a kilogram of cocaine.
Unlike the stricter "practical certainty" standard applied
in aider and abettor liability, under Pinkerton, the defendant need
only have reasonably foreseen that one of his co-conspirators would use
a firearm during the commission of the conspiracy. See Shea, 150 F.3d
at 50. It is well settled that "the illegal drug industry is, to put
it mildly, a dangerous, violent business." United States v. Díaz, 864
F.2d 544, 549 (7th Cir. 1988). As a corollary, the use of firearms is
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foreseeable in trafficking offenses involving substantial quantities of
drugs. See id.; United States v. Cummings, 937 F.2d 941, 945 (4th Cir.
1991).
In this case, there is no evidence that appellants were
unaware of the quantities of drugs delivered to Merced-Morales' bar.
In contrast, Wilfredo and David Martínez-Matta testified that both
Merced-Morales and Collazo-Aponte were frequently involved in drug
transactions involving, for example, kilogram quantities of cocaine and
crack. Further, at the time of his arrest in September 1994, Collazo-
Aponte possessed over 1,000 decks of heroin. (Wilfredo Martínez-Matta
testified that ten decks of heroin sold for $100; therefore, the 1,000
decks Collazo-Aponte possessed would have sold for $10,000.)
Accordingly, we hold that the use of firearms was foreseeable to the
appellants, and we affirm their convictions on Count 65.6
In reaching this conclusion, we reject Collazo-Aponte's due
process argument. We agree with appellant that "due process constrains
the application of Pinkerton where the relationship between the
defendant and the substantive offense is slight." United States v.
Castañeda, 9 F.3d 761, 766 (9th Cir. 1993); see also United States v.
6 We note that there is also sufficient evidence in the record to
support a reasonable inference that both Merced-Morales and Collazo-
Aponte were aware that the drug war with the Rosarios was the impetus
behind the move to Merced-Morales' bar. For this reason as well, we
affirm appellants' Count 65 conviction because it was foreseeable that
firearms would be used to facilitate and protect the Santiago-Lugo drug
operation during the drug war with the Rosarios.
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Chorman, 910 F.2d 102, 112 (4th Cir. 1990); United States v. Alvarez,
755 F.2d 830, 850-51 (11th Cir. 1985); United States v. Moreno, 588
F.2d 490, 493 (5th Cir. 1979). However, contrary to appellant's
assertion, "[t]he foreseeability concept underlying Pinkerton is also
the main concern underlying a possible due process violation."
Castañeda, 9 F.3d at 766 (quoting United States v. Christian, 942 F.2d
363, 367 (6th Cir. 1991)). Accordingly, the relevant inquiry is, "was
it reasonably foreseeable to the defendant that a firearm would be used
in relation to the predicate offense?" Id. at 766.
In support of his argument, Collazo-Aponte relies on United
States v. Castañeda. In Castañeda, the Ninth Circuit reversed
appellant Leticia Castañeda's conviction under 18 U.S.C. § 924(c) on
due process grounds. There, as here, the § 924(c) conviction was based
on Pinkerton liability. The court reasoned, "a conspirator may be held
vicariously responsible for her co-conspirator's carrying of a firearm
in relation to a specified drug trafficking offense," id. at 765,
however, given the specific facts of the case, "we cannot conclude,
without violating the fundamental precepts of due process, that Leticia
could have foreseen the other conspirators' use of firearms in relation
to the predicate offenses," id. at 768. The court's analysis is
informative.
Where a defendant has little or no connection to
the predicate drug offense, another conspirator's
use of a firearm in relation to the predicate
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drug offense may, in some fact situations, be
unforeseeable. In those cases, it would violate
due process to find the defendant vicariously
liable for the firearm's use under § 924(c).
Leticia's situation is a paradigm example of such
an unforeseeable use.
As the sentencing court emphasized, Leticia
played, at best, a small part in the overall
conspiracy. The government contends, however,
that six telephone conversations between Leticia
and other conspirators demonstrate that she acted
as her husband's "assistant" or "confidante" in
the conspiracy. Not so. Although she was married
to Uriel, a major player, there is no evidence
that she played more than a passive role in the
drug operation. . . .
Taken together, [the] phone calls demonstrate
that Leticia "assisted" Uriel only insofar as she
acted as his spouse: answering her home phone,
taking messages from callers and answering his
questions when he called. The evidence does not
show that she knew much about Uriel's or Barron's
organizations, that she knew the low-level
distributors involved, that she had any knowledge
of Angulo-López's organization, or that she ever
had more than a marginal role in the conspiracy.
Id. at 767.
The dissimilarities between Castañeda and this case are
readily apparent. Here, appellants were personally involved in
numerous transactions involving large quantities of cocaine, crack, and
other illegal drugs. Unlike Castañeda, this is not a case involving an
attenuated relationship between the conspirator and the substantive
crime. Accordingly, we hold that it was reasonably foreseeable to
appellants that a firearm would be used in relation to the predicate
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drug trafficking offense, see Díaz, 864 F.2d at 549, and reject
Collazo-Aponte's due process argument, see, e.g., United States v.
Johnson, 886 F.2d 1120, 1123 (9th Cir. 1989).
Finally, Collazo-Aponte alleges that the jury could have
erroneously convicted him under an aiding and abetting theory. The
trial judge instructed the jury as to Count 65 on two alternate
theories of liability: aiding and abetting and Pinkerton co-conspirator
liability. Contrary to appellant's assertion, it is settled that where
there is insufficient evidence with respect to one theory of liability,
the jury's verdict is presumed to rest on the theory that the evidence
supported. See Griffin v. United States, 502 U.S. 46, 59 (1991);
United States v. Nieves-Burgos, 62 F.3d 431, 434-35 (1st Cir. 1995).
Since the evidence against Merced-Morales and Collazo-Aponte on the 18
U.S.C. § 924(c) charge is sufficient pursuant to Pinkerton, we affirm
their convictions.
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XVII. Rosario-Rodríguez's Double Jeopardy and Collateral Estoppel
Arguments
Rosario-Rodríguez raises a double jeopardy challenge to his
conviction based on his acquittal in United States v. Solano-Moreta,
Cr. No. 95-160 (SEC). The Double Jeopardy Clause provides that no
person shall "be subject for the same offense to be twice put in
jeopardy of life or limb." U.S. Const. amend. V. This guarantee is
expressed, in pertinent part, as a prohibition against multiple
prosecutions for the "same offense." United States v. Booth, 673 F.2d
27, 29 (1st Cir. 1982). In the First Circuit, we examine five criteria
to determine whether two conspiracies are the "same offense" for double
jeopardy purposes: "(1) the time during which the activities occurred;
(2) the persons involved in the conspiracies' (3) the places involved;
(4) whether the same evidence was used to prove the two conspiracies;
and (5) whether the same statutory provision was involved in both
conspiracies." Id.; see also United States v. Hart, 933 F.2d 80, 85-6
(1st Cir. 1991); United States v. Gómez-Pabón, 911 F.2d 847, 860-61
(1st Cir. 1990). Once a defendant has established a non-frivolous
double jeopardy claim, the burden shifts to the government to prove by
a preponderance of the evidence that the indictments charge separate
offenses. See Booth, 673 F.2d at 30-31.
Applying the Booth test here, we are satisfied that the
narcotics conspiracy prosecuted in case 95-160 and the narcotics
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conspiracy involved in this case are not the same offense. First, the
two conspiracies involve different time periods. The indictment in
this case alleges a conspiracy beginning in 1988, from which Rosario-
Rodríguez withdrew by early 1993. In contrast, in case 95-160,
Rosario-Rodríguez was charged with participating in a drug conspiracy
that existed at "divers[e] times between January 1, 1992 until on or
about June 7, 1995." Second, the participants were not the same.
Among the thirty-seven defendants in case 95-160 and the forty-nine
defendants named in the various indictments in this case, only the
Rosario-Rodríguez brothers are common to both. Third, the evidence
that the government used to prove each conspiracy was substantially
different. Most notable, not a single witness was common to both
trials. Although the location of both conspiracies and the statutory
provisions charged, 21 U.S.C. §§ 841 and 846, were the same, this alone
is not dispositive. See, e.g., Hart, 933 F.2d at 85-86. Accordingly,
we hold that the conspiracies charged in each indictment are legally
distinct and the prosecution in this case did not offend the Double
Jeopardy Clause.
Rosario-Rodríguez also raises a collateral estoppel argument.
Collateral estoppel is a part of the Fifth Amendment's guarantee
against double jeopardy. It provides that "when an issue of ultimate
fact has once been determined by a valid and final judgment, that issue
cannot again be litigated between the same parties in any future
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lawsuit." Ashe v. Swenson, 397 U.S. 436, 443 (1970). Although first
developed in civil litigation, collateral estoppel is an "established
rule of federal criminal law." Id. at 443. Further, the Supreme Court
has stated that in criminal cases collateral estoppel is to be applied
"with realism and rationality." Id. at 444.
Where a previous judgment of acquittal was based
upon a general verdict, as is usually the case,
this approach requires a court to examine that
record of a prior proceeding, taking into account
the pleadings, evidence, charge, and other
relevant matter, and conclude whether a rational
jury could have grounded its verdict upon an
issue other than that which the defendant seeks
to foreclose from consideration. The inquiry
must be set in a practical frame and viewed with
an eye to all the circumstances of the
proceedings. Any test more technically
restrictive would, of course, simply amount to a
rejection of the rule of collateral estoppel in
criminal proceedings, at least in every case
where the first judgment was based upon a general
verdict of acquittal.
Id. (internal quotations and citations omitted). The defendant bears
the burden of demonstrating "that the issue whose relitigation he seeks
to foreclose was actually decided in the first proceeding." See
Dowling v. United States, 493 U.S. 342, 350 (1990).
Here, Rosario-Rodríguez states that Count 1 of the indictment
describes the individuals murdered after the Rosarios exited the
Santiago-Lugo drug conspiracy as "associates of the Rosario-Rodríguez
brothers." According to appellant, his acquittal in case 95-160 barred
the government from alleging that he was "associated" with any of the
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murder victims in this case. This argument is not only confusing, but
meritless.
Quite simply, there is no evidence indicating that the jury
in case 95-160 concluded that appellant was not associated with the
murder victims in this case. To the contrary, as the record stands,
there is nothing that even suggests that appellant's association with
these individuals was at issue, let alone determined in appellant's
favor, at the prior trial. Equally important, the evidence attacked by
appellant was not offered against him. The government introduced
evidence of Rosario-Rodríguez's association with certain murder victims
to establish the motive of other defendants, who murdered those
individuals because of their affiliation with the Rosario-Rodríguez
brothers. Consequently, appellant has not carried his burden of proof
and this argument fails.
XVIII. Ortiz-Santiago, Rosario-Rodríguez, and Colón-Miranda's Double
Jeopardy Argument
Ortiz-Santiago, Rosario-Rodríguez, and Colón-Miranda argue
that their convictions for the Count 1 drug conspiracy, charged
pursuant to 21 U.S.C. § 846, and the drug-related murders, charged
pursuant to 21 U.S.C. § 848(e), violate the Double Jeopardy Clause
because the former is a lesser included offense of the latter.
Appellants are mistaken.
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In Blockburger v. United States, 284 U.S. 299, 304 (1932),
the Supreme Court set out the test for "separate offenses" under the
Double Jeopardy Clause, stating:
The applicable rule is that, where the same act
or transaction constitutes a violation of two
distinct statutory provisions, the test to be
applied to determine whether there are two
offenses or only one is whether each provision
requires proof of an additional fact which the
other does not.
The Court, however, has clarified that "[t]he Blockburger test is a
'rule of statutory construction,' and because it serves as a means of
discerning congressional purpose the rule should not be controlling
where, for example, there is a clear indication of contrary legislative
intent." Missouri v. Hunter, 459 U.S. 359, 367 (1983) (quoting
Albernaz v. United States, 450 U.S. 333, 344 (1981)); see also Garrett
v. United States, 471 U.S. 773, 779 (1985) ("[T]he Blockburger rule is
not controlling when the legislative intent is clear from the face of
the statute or the legislative history."); Albrecht v. United States,
273 U.S. 1, 11 (1927) ("There is nothing in the Constitution which
prevents Congress from punishing separately each step leading to the
consummation of a transaction which it has power to prohibit and
punishing also the completed transaction.").
Here, Count 1 charged appellants with engaging in a drug
conspiracy under 21 U.S.C. § 846, which is punishable under 21 U.S.C.
§ 841(b)(1)(A). Counts 52-59 charged appellants with murder under 21
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U.S.C. § 848(e)(1), which outlaws, in relevant part, intentional
killing while engaged in an offense punishable under § 841(b)(1)(A).
The statutory language of 21 U.S.C. § 848(e)(1) clearly indicates that
a drug-related murder conviction is a separate offense from the
predicate drug conspiracy offense:
(1) In addition to the other penalties set forth
in this section--
(A) any person engaging in or working in
furtherance of a continuing criminal enterprise,
or any person engaging in an offense punishable
under section 841(b)(1)(A) of this title or
section 960(b)(1) of this title who intentionally
kills or counsels, commands, induces, procures,
or causes the intentional killing of an
individual and such killing results, shall be
sentenced to any term of imprisonment, which
shall not be less than 20 years, and which may be
up to life imprisonment, or may be sentenced to
death.
21 U.S.C. § 848(e)(1). Significantly, the first sentence of
§ 848(e)(1) begins "[i]n addition to the other penalties set forth in
this section," thereby making it clear that Congress intended to permit
a defendant to be convicted and sentenced separately for murder under
848(e)(1) and a predicate drug conspiracy punishable under 21 U.S.C. §
841(b)(1)(A). The case law is in accord and we need not give this
argument any further consideration. See United States v. McCullah, 76
F.3d 1087, 1104-05 (10th Cir. 1996); United States v. Snow, 48 F.3d
198, 200 (6th Cir. 1995); see also United States v. Villarreal, 963
F.2d 725, 728 (5th Cir. 1992) ("We are convinced that Congress created
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a substantive offense in 21 U.S.C. § 848(e)(1)(B) and that its
'language, structure, and . . . history . . . show in the plainest way
that Congress intended [it] to be a separate criminal offense which was
punishable in addition to, and not as a substitute for, the predicate
offenses.'" (quoting Garrett, 471 U.S. at 779)); cf. United States v.
NJB, 104 F.3d 630, 632-33 (4th Cir. 1997) (holding conviction for CCE
murder, 21 U.S.C. § 848(e)(1), is a separate offense from a CCE, 21
U.S.C. § 848(c)).
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XIX. Sentencing Arguments Raised by Ríos-Ríos Regarding His Base
Offense Level and the Denial of a Mitigating Role Adjustment
In the First Circuit, appellate review of a district court's
application of the Sentencing Guidelines is a two-part process. See
United States v. Cali, 87 F.3d 571, 575 (1st Cir. 1996); United States
v. Joyce, 70 F.3d 679, 681 (1st Cir. 1995). First, we determine the
applicability and interpretation of a sentencing guideline de novo.
See Cali, 87 F.3d at 575; United States v. McCarthy, 77 F.3d 522, 535
(1st Cir. 1996); United States v. St. Cyr, 977 F.2d 698, 701 (1st Cir.
1992). Second, after determining the guideline's scope and meaning, we
review "the district court's factual determinations for clear error,
'giv[ing] due deference to the district court's application of the
guidelines to the facts.'" Cali, 87 F.3d at 575 (quoting Joyce, 70 F.3d
at 681); see also McCarthy, 77 F.3d at 535; St. Cyr, 977 F.2d at 701.
Here, Ríos-Ríos contends that the district court erred by (1)
failing to make individualized findings regarding the drug quantity
attributed to him, (2) incorrectly calculating the drug quantity, and
(3) failing to apply Sentencing Guidelines § 2D1.1 comment note 14 and
§ 3B1.2 to his case. These arguments are without merit.
In a drug distribution case, "a key datum in constructing a
defendant's sentence is the quantity of narcotics attributable to him
for sentencing purposes . . . ." United States v. Bradley, 917 F.2d
601, 604 (1st Cir. 1990); see also United States v. García, 954 F.2d
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12, 15 (1st Cir. 1992). In the context of a drug conspiracy, a
defendant is also accountable for the conduct of others if that conduct
is (1) reasonably foreseeable to the defendant and (2) committed in
furtherance of a jointly undertaken criminal activity. See U.S.S.G. §
1B1.3(a)(1)(B); see also United States v. O'Campo, 973 F.2d 1015, 1026
(1st Cir. 1992) ("We are of the view that the base offense level of a
co-conspirator at sentencing should reflect only the quantity of drugs
he reasonably foresees it is the object of the conspiracy to distribute
after he joins the conspiracy."); García, 954 F.2d at 15 (same). As a
corollary, we have held that in order to properly calculate a
defendant's base level for sentencing, a trial judge must make
individualized findings regarding the foreseeability of conduct
undertaken by co-conspirators. See, e.g., United States v. Balogun,
989 F.2d 20, 22 (1st Cir. 1993).
In this case, the evidence established that Ríos-Ríos was
actively involved in the Costa del Mar and Los Pinos mesas for
approximately eighteen months during 1990 and 1991. As a matter of
law, Ríos-Ríos is accountable for his co-conspirators' conduct during
that time so long as that conduct was reasonably foreseeable and in
furtherance of the conspiracy. See U.S.S.G. § 1B1.3(a)(1)(B); O'Campo,
973 F.2d at 1026; García, 954 F.2d at 15. In sentencing Ríos-Ríos, the
trial court determined that the conduct of his co-conspirators was
reasonably foreseeable, stating those who were "dealing with the mesas,
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taking care of the apartments, renting places, people who were in the
trust of Santiago-Lugo, in that sense are responsible for that amount
of drug." The trial court then relied on the various drug ledgers
deciphered by Agent Clouse at trial as a "conservative way of
determining how much drug is involved," and concluded that Ríos-Ríos
was subject to a base offense level of thirty-eight.
The district court's findings are not clearly erroneous. See
Cali, 87 F.3d at 575. To the contrary, there is ample evidence in the
record to support the trial court's determination of a base offense
level of thirty-eight. David Martínez-Matta testified that the
Santiago-Lugo organization processed quarter-kilogram quantities of
heroin and kilogram quantities of cocaine at the Los Pinos mesa weekly.
Over a one-year period, that would result in thirteen kilograms of
heroin and fifty-two kilograms of cocaine. The Sentencing Guidelines
convert heroin and cocaine quantities to marijuana equivalents. See
U.S.S.G. § 2D1.1 cmt. note 10. Pursuant to the drug equivalence
tables, one gram of heroin equals one kilogram of marijuana and one
gram of cocaine equals two hundred grams of marijuana. Accordingly,
during 1991, the Santiago-Lugo organization processed the equivalent of
23,400 kilograms of marijuana at the Los Pinos mesa (13,000 kilograms
attributable to the heroin production and 10,400 kilograms attributable
to the cocaine). Ríos-Ríos actively participated in the mesas at Costa
del Mar and Los Pinos for eighteen months, which makes him accountable
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for a year and a half's worth of narcotics production amounting to the
equivalent of 35,100 kilograms of marijuana. The prosecution needed
only to show that the defendant was responsible for 30,000 kilograms of
marijuana to support a base level of thirty-eight.
In addition, the trial court properly declined to apply
Sentencing Guidelines §§ 2D1.1 comment note 14 and 3B1.2 to this case.
Application Note 14, authorizing a downward departure for certain less
culpable defendants, is dependent on the applicability of § 3B1.2,
authorizing an offense level reduction for mitigating role. The burden
to show that the facts merit the adjustment falls on the defendant.
See García, 954 F.2d at 18 ("[W]hen a defendant seeks to show that his
role was so tangential as to justify a downward adjustment in an
otherwise-applicable offense level, he must carry the devoir of
persuasion."). Moreover, we have often held, and today reaffirm, that
role-in-the-offense determinations, if based on reasonable inferences
drawn from undisputed facts, cannot be clearly erroneous. See, e.g.,
id. at 18; United States v. DiIorio, 948 F.2d 1, 5 (1st Cir. 1991);
United States v. Rosado-Sierra, 938 F.2d 1, 1-2 (1st Cir. 1991).
In this case, the judge ruled, "from the evidence I have
heard, . . . those who had access to [the mesas], indeed were by no
means minor, minimal, or in between participants." There is no dispute
that Ríos-Ríos had access to the drug mesas. Accordingly, we reject
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appellant's argument that he played a minor role and affirm his
sentence of 293 months.
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XX. Sentencing Argument Raised by Collazo-Aponte Regarding Enhancement
of His Sentence Pursuant to 18 U.S.C. § 924(c)(1)(B)(i)
Collazo-Aponte alleges that the district court improperly
enhanced his sentence for Count 65 (charging appellant with use of a
firearm during a drug trafficking offense pursuant to 18 U.S.C. §
924(c)(1) and Pinkerton) to ten years pursuant to 18 U.S.C.
§ 924(c)(1)(B)(i). The statute provides, in relevant part:
(c)(1)(A) Except to the extent that a greater
minimum sentence is otherwise provided by this
subsection or by any other provision of law, any
person who, during and in relation to any crime
of violence or drug trafficking crime (including
a crime of violence or drug trafficking crime
that provides for an enhanced punishment if
committed by the use of a deadly or dangerous
weapon or device) for which the person may be
prosecuted in a court of the United States, uses
or carries a firearm, or who, in furtherance of
any such crime, possesses a firearm, shall, in
addition to the punishment provided for such
crime of violence or drug trafficking crime --
(i) be sentenced to a term of imprisonment of not
less than 5 years;
. . . .
(B) If the firearm possessed by a person
convicted of a violation of this subsection--
(i) is a short-barreled rifle, short-barreled
shotgun, or semiautomatic assault weapon, the
person shall be sentenced to a term of
imprisonment of not less than 10 years.
Id. § 924(c). Appellant argues that (1) the use or carrying of
semiautomatic firearms occurred prior to his joining of the conspiracy,
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and (2) he could not have foreseen the use of such firearms. Neither
argument has merit.
In the sentencing context, "we review factbound matters for
clear error, and such facts need only be supported by a preponderance
of the evidence." United States v. McCarthy, 77 F.3d 522, 535 (1st
Cir. 1996); see also United States v. Andújar, 49 F.3d 16, 25 (1st Cir.
1995). Here, a preponderance of the evidence establishes that Collazo-
Aponte joined the conspiracy shortly after the murder of Richard Muñoz-
Candelaria, who was killed on February 23, 1993. At that time, the
organization began storing drugs at Merced-Morales' bar. Collazo-
Aponte does not contest that he was employed by Merced-Morales at this
location, and Wilfredo Martínez-Matta testified that Collazo-Aponte was
personally involved with the drug trafficking that took place there.
Collazo-Aponte also does not contest that the evidence presented by the
government at his sentencing reflected the organization's use of
semiautomatic firearms during the Easter 1994 cacería that resulted in
the murder of Wilfredo Rivera-Rodríguez and Wilfredo Guzmán-Morales.
Consequently, appellant's first argument fails because the record
reveals no clear error.
Collazo-Aponte failed to raise his reasonable foreseeability
argument before the district court, and therefore appellant's second
argument is waived. See, e.g., United States v. Candelaria-Silva, 166
F.3d 19, 40-41 (1st Cir. 1999); United States v. Barnett, 989 F.2d 546,
-83-
554 (1st Cir. 1993). Moreover, even if this argument had been properly
preserved, the record contains ample evidence that the use of
semiautomatic weapons was reasonably foreseeable. Collazo-Aponte had
personal knowledge of the significant drug quantities involved in the
conspiracy, see, e.g., United States v. Díaz, 864 F.2d 544, 549 (7th
Cir. 1988), and it stretches the imagination to suggest that Collazo-
Aponte was somehow unaware of the drug war with the Rosarios.
Accordingly, this argument fails.
XXI. Sentencing Arguments Raised by Rosario-Rodríguez
A. Criminal History
Rosario-Rodríguez alleges that the district court improperly
calculated his criminal history category pursuant to Sentencing
Guidelines § 4A1.2 because the court treated his local convictions for
first-degree murder and the related firearms offenses committed on
April 2, 1994 as a "prior sentence." Appellant argues that contrary to
the district court's determination, these convictions constitute
conduct that is part of the instant offense pursuant to the definition
of relevant conduct contained in Sentencing Guidelines § 1B1.3.
Appellant is mistaken.
Section 4A1.2(a)(1) states that in calculating a defendant's
prior criminal history a judge may count as a "prior sentence" only a
"sentence previously imposed . . . for conduct not part of the instant
offense." (Emphasis added). Conduct that is part of the instant
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offense "means conduct that is relevant conduct to the instant offense
under the provisions of § 1B1.3" U.S.S.G. § 4A1.2 cmt. note 1.
Unfortunately, the applicable definition found in § 1B1.3 is not a
model of clarity. Section 1B1.3 defines relevant conduct as "the same
course of conduct or common scheme or plan as the offense of
conviction." U.S.S.G. § 1B1.3(a)(2); see also United States v.
Skrodzki, 9 F.3d 198, 201 (1st Cir. 1993). Thankfully, the commentary
to § 1B1.3 is more helpful:
(A) Common scheme or plan. For two or more
offenses to constitute part of a common scheme or
plan, they must be substantially connected to
each other by at least one common factor, such as
common victims, common accomplices, common
purpose, or similar modus operandi. . . .
(B) Same course of conduct. Offenses that do not
qualify as part of a common scheme or plan may
nonetheless qualify as part of the same course of
conduct if they are sufficiently connected or
related to each other as to warrant the
conclusion that they are part of a single
episode, spree, or ongoing series of offenses.
Factors that are appropriate to the determination
of whether offenses are sufficiently connected or
related to each other to be considered as part of
the same course of conduct include the degree of
similarity of the offenses, the regularity
(repetitions) of the offenses, and the time
interval between the offenses. When one of the
above factors is absent, a stronger presence of
at least one of the other factors is required.
U.S.S.G. § 1B1.3 cmt. note 9.
The case law is in accord, adopting a "severable and distinct
test." See, e.g., Unites States v. Copeland, 45 F.3d 254, 256 (8th
-85-
Cir. 1995) ("Although conduct that is part of the current offense
should be counted as relevant conduct rather than as a prior sentence,
conduct is not part of the instant offense when it is a 'severable
distinct offense.'") (quoting United States v. Blumberg, 961 F.2d 787,
792 (8th Cir. 1992). As the Guidelines indicate, "[t]his is
necessarily a fact-specific inquiry that involves more than just a
consideration of the elements of the two offenses. Factors such as the
temporal and geographical proximity of the two offenses, common
victims, and a common criminal plan or intent also must be considered."
United States v. Beddow, 957 F.2d 1330, 1338 (6th Cir. 1992) (internal
citation omitted).
Here, the district court properly concluded that Rosario-
Rodríguez exited the Santiago-Lugo conspiracy on February 28, 1993 by
taking part in the murder of Richard Muñoz-Candelaria. Consequently,
appellant's local convictions for murder and the related firearms
offenses do not constitute relevant conduct for sentencing purposes in
this case. First, the local offenses occurred on April 2, 1994, more
than a year after Rosario-Rodríguez exited the conspiracy charged in
the present indictment. Second, although appellant claims that the
1994 murder was "relevant conduct" of his participation in the
Santiago-Lugo organization, there was no evidence of the 1994 murder
presented during trial. Third, appellant fails to provide the Court
with any details of the 1994 murder. We are left to speculate as to
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both the circumstances involved and the identity of the victim. The
little information about this murder that is in the record merely
suggests that it was a double murder committed to avenge the execution
of appellant's fourteen-year-old brother. Accordingly, there is no
evidence of common victims, accomplices, criminal plans or intent. See
Copeland, 45 F.3d at 256; Beddow, 957 F.2d at 1338. Therefore, we hold
that the district court did not err in finding the 1994 murder was not
relevant conduct to the instant offense.
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B. Downward Departure for Superb Prison Behavior
Rosario-Rodríguez argues that the district court should have
departed downward, pursuant to Sentencing Guidelines § 5K2.0, because
of his "superb prison behavior" during prior and ongoing periods of
incarceration. In United States v. Saldaña, 109 F.3d 100 (1st Cir.
1997), we explained:
Under 18 U.S.C. § 3742(a), a defendant may appeal
from his sentence . . . if it was imposed "in
violation of law" or by "an incorrect application
of the sentencing guidelines"; but the defendant
may not appeal from a sentence within the
guideline range if there was no legal error and
the only claim is that the district court acted
unreasonably in declining to depart.
Id. at 102; see also United States v. Tucker, 892 F.2d 8, 10 (1st Cir.
1989). Here, appellant does not allege any error of law. Accordingly,
this claim is not subject to review.
C. Consecutive Sentences
Rosario-Rodríguez alleges that the district court should have
"exercised its discretion" under 18 U.S.C. § 3584(a) and Sentencing
Guidelines § 5G1.3(c) to run his sentence in this case concurrent to
that imposed for his local first-degree murder and related firearms
convictions.
The applicable statute, 18 U.S.C. § 3584(a), states:
[I]f a term of imprisonment is imposed on a
defendant who is already subject to an
undischarged term of imprisonment, the terms may
run concurrently or consecutively . . . .
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Multiple terms of imprisonment imposed at
different times run consecutively unless the
court orders that the terms are to run
concurrently.
Since the district court did not specify concurrent sentences, the
terms of appellant's federal and local convictions run consecutively
pursuant to the last sentence of Section 3584(a).
As Sentencing Guidelines § 5G1.3(c) makes clear, and as
Rosario-Rodríguez admits, the district court has "full discretion" to
decide whether to run the sentences concurrently or consecutively:
[T]he sentence for the instant offense may be
imposed to run concurrently, partially
concurrently, or consecutively to the prior
undischarged term of imprisonment to achieve a
reasonable punishment for the instant offense.
U.S.S.G. § 5G1.3(c). Appellant does not allege any error of law, but
merely contends that the court should have exercised its discretion
differently. For the reasons set forth above, this argument is not
subject to review. See Saldaña, 109 F.3d at 102 ("Under 18 U.S.C. §
3742(a), a defendant . . . may not appeal from a sentence within the
guideline range if there was no legal error and the only claim is that
the district court acted unreasonably in declining to depart.");
Tucker, 892 F.2d at 10 (same).
D. Acceptance of Responsibility
In light of his allocution at the sentencing hearing,
Rosario-Rodríguez argues that the trial court erred in declining to
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reduce his offense level for acceptance of responsibility pursuant to
Sentencing Guidelines § 3E1.1(a). In this Circuit, "[a] defendant
bears the burden of proving entitlement to decreases in the offense
level, including downward adjustments for acceptance of
responsibility." United States v. Gonzáles, 12 F.3d 298, 300 (1st Cir.
1993); see also United States v. Morillo, 8 F.3d 864, 871 (1st Cir.
1993); United States v. Bradley, 917 F.2d 601, 606 (1st Cir. 1990).
"Whether a defendant clearly demonstrates a recognition and affirmative
acceptance of personal responsibility is a fact-dominated issue, and
the district court's decision to withhold a reduction in the offense
level will not be overturned unless clearly erroneous." E.g., United
States v. Royer, 895 F.2d 28, 29 (1st Cir. 1990); see also U.S.S.G. §
3E1.1 cmt. note 5 ("The sentencing judge is in a unique position to
evaluate a defendant's acceptance of responsibility. For this reason,
the determination of the sentencing judge is entitled to great
deference on review.").
Section 3E1.1 requires a defendant to "clearly" demonstrate
acceptance of responsibility for his offense. Accordingly, "a
defendant who falsely denies, or frivolously contests, relevant conduct
that the court determines to be true has acted in a manner inconsistent
with acceptance of responsibility." U.S.S.G. § 3E1.1 cmt. note 1(a).
Although a defendant who goes to trial may still qualify for acceptance
of responsibility, such an occurrence is "rare." Id. at cmt. note 2.
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The Guidelines explain: "This adjustment is not intended to apply to
a defendant who puts the government to its burden of proof at trial by
denying the essential factual elements of guilt, is convicted, and only
then admits guilt and expresses remorse." U.S.S.G. § 3E1.1 cmt. note
2. Accordingly, "a determination that a defendant has accepted
responsibility will be based primarily upon pre-trial statements and
conduct." Id.
In this case, the record reflects that Rosario-Rodríguez made
no pretrial statements accepting responsibility. Further, although
appellant talked at length about his distribution of narcotics at his
sentencing hearing, he did not accept responsibility for the murder of
Muñoz-Candelaria. To the contrary, he stated:
[T]he only reason I went to trial in this case
was because I was being charged with the death of
Richard Muñoz-Candelaria . . . . I would have
accepted my responsibilities but I could never
accept that I killed Richard Muñoz-Candelaria.
I could never accept something that was not true.
Based on these statements, the district court correctly found:
What I am saying is that the jury made a finding
that your client participated in the murder.
There has been no admission. No acceptance of
responsibility by your client as to that and that
is at odds with the evidence at trial and the
jury verdict. In which case I don't think that
I should second guess what happened in the jury
room or how the jury interpreted the evidence by
granting an acceptance of responsibility . . . .
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As the trial court indicated, the record reflects that
Rosario-Rodríguez denied murdering Muñoz-Candelaria in direct
contravention of the jury's verdict on Count 52. Accordingly, we see
no reason to reverse the lower court's determination on this question.
[T]he district judge had firsthand knowledge of
the circumstances surrounding the defendant's
actions and had the opportunity to see [the
defendant], listen to him, and assess his
credibility. The judge determined that appellant
had not forthrightly acknowledged the extent of
his involvement and thus had failed meaningfully
to shoulder responsibility. Because the court
had a plausible basis for arriving at the
conclusion, no more was required.
United States v. Royer, 895 F.2d 28, 30 (1st Cir. 1990).
E. Credit for Time Served
Rosario-Rodríguez alleges that he should have received credit
for time served on a previous federal sentence pursuant to 18 U.S.C. §
3585(b). Appellant's previous sentence was for possession of a firearm
with an obliterated serial number. According to appellant, this
offense was "inextricably related and inextricably intertwined" with
the offenses in this case. The Supreme Court has disposed of this
argument
We do not accept [appellant's] argument that
§ 3585(b) authorizes a district court to award
credit at sentencing . . . . Congress has
indicated that computation of the credit must
occur after the defendant begins his sentence. A
district court, therefore, cannot apply § 3585(b)
at sentencing.
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United States v. Wilson, 503 U.S. 329, 333 (1992). The computation of
credit for time served must be made in the first instance by the
Attorney General, through the Bureau of Prisons. See id. at 335.
Prisoners may then seek administrative review of the computation of
their credits, see 28 C.F.R §§ 542.10-.16 (1990), and, if necessary,
"seek judicial review of these computations after exhausting their
administrative remedies." Id. Accordingly, appellant's contention of
error is without merit.
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F. Imposition of a Consecutive Ten-Year Sentence for
Violation of 18 U.S.C. § 924(c)(1)
Finally, Rosario-Rodríguez argues that he was improperly
sentenced under 18 U.S.C. § 924(c)(1). As we previously indicated, the
statute provides:
[A]ny person who, during and in relation to any
crime of violence or drug trafficking crime
(including a crime of violence or drug
trafficking crime that provides for an enhanced
punishment if committed by the use of a deadly or
dangerous weapon or device) for which the person
may be prosecuted in a court of the United
States, uses or carries a firearm, or who, in
furtherance of any such crime, possesses a
firearm, shall, in addition to the punishment
provided for such crime of violence or drug
trafficking crime -- be sentenced to a term of
imprisonment of not less than 5 years . . . . If
the firearm possessed by a person convicted of a
violation of this subsection – is a
short-barreled rifle, short-barreled shotgun, or
semiautomatic assault weapon, the person shall be
sentenced to a term of imprisonment of not less
than 10 years . . . .
Id. § 924(c)(1). Here, the district court imposed the mandatory,
consecutive ten-year sentence for violations involving a semiautomatic
assault weapon. We see no error in this determination. The record
establishes that on July 3, 1992 Rosario-Rodríguez was arrested with a
Calico 9mm firearm capable of holding fifty rounds of ammunition. In
addition, Wilfredo Martínez-Matta testified that shortly before the
murder of Richard Muñoz-Candelaria, appellant was holding an automatic
pistol. Moreover, the prosecution's expert witness, Dr. Brugal,
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testified that Muñoz-Candelaria was shot twenty-nine times, which
suggests that a semiautomatic weapon of some sort was employed in his
murder. Accordingly, the ten-year mandatory sentence imposed by the
district court was appropriate pursuant to 18 U.S.C. § 924(c)(1).
XXII. Colón-Miranda's Sentence for Tampering with a Witness in
Violation of 18 U.S.C. § 1512
In Counts 60 and 61 of the indictment, Colón-Miranda was
charged with attempting to kill Rafael Cotto-Fuentes with the intent to
prevent Cotto-Fuentes from (1) communicating with a United States law
enforcement officer and (2) testifying in an official proceeding --
both in violation of 18 U.S.C. § 1512. Colón-Miranda was convicted on
each count, and the district court imposed life sentences. We agree
with appellant that these sentences are improper. The statute provides
that in the case of attempted murder, imprisonment shall be for no more
than twenty years. See 18 U.S.C. § 1512(a)(2)(B). Accordingly, we
reverse and remand the sentence imposed on Colón-Miranda under Counts
60 and 61 for re-sentencing in accordance with 18 U.S.C. §
1512(a)(2)(B).
XXIII. Ineffective Assistance of Counsel Argument Raised by Ríos-Ríos
Ríos-Ríos alleges that his trial counsel was ineffective.
In this Circuit, "[w]e have held with a regularity bordering on the
monotonous that fact-specific claims of ineffective assistance cannot
make their debut on direct review of criminal convictions, but, rather,
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must originally be presented to, and acted upon by, the trial court."
United States v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993); see also
United States v. McGill, 952 F.2d 16, 19 (1st Cir. 1991); United States
v. Natanel, 938 F.2d 302, 309 (1st Cir. 1991); United States v.
Hunnewell, 891 F.2d 955, 956 (1st Cir. 1989); United States v. Costa,
890 F.2d 480, 482-83 (1st Cir. 1989); United States v. Hoyos-Medina,
878 F.2d 21, 22 (1st Cir. 1989); United States v. Carter, 815 F.2d 827,
829 (1st Cir. 1987); United States v. Kobrosky, 711 F.2d 449, 457 (1st
Cir. 1983). It is true that we have made an occasional exception to
this rule where, for example, "the critical facts are not genuinely in
dispute and the record is sufficiently developed to allow reasoned
consideration of an ineffective assistance claim." Natanel, 938 F.2d
at 309. This, however, is not such a case, and therefore we decline to
review this claim.
Appellant is free to raise this argument collaterally under
28 U.S.C. § 2255. See, e.g., United States v. Martínez-Martínez, 69
F.3d 1215, 1225 (1st Cir. 1995); United States v. Daniels, 3 F.3d 25,
27 (1st Cir. 1993).
XXIV. Appellants' Remaining Arguments
Appellants' remaining claims have been considered but do not
require discussion. This Court has previously stated:
[W]e understand the practical pressure on
lawyers--especially in criminal cases--to resolve
doubts in favor of including doubtful claims
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along with stronger ones. But cases with
difficult issues now crowd the dockets. At least
in opinion writing, the court's time is best
reserved for colorable claims.
United States v. Bennett, 75 F.3d 40, 49 (1st Cir. 1996). We reaffirm
this principle today.
In addition, we decline to reach any arguments merely alluded
to by appellants because "we see no reason to abandon the settled
appellate rule that issues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are deemed
waived." E.g., United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990). As we have previously reasoned, "[j]udges are not expected to
be mindreaders," and therefore "a litigant has an obligation to spell
out its arguments squarely and distinctly." Rivera-Gómez v. de Castro,
843 F.2d 631, 635 (1st Cir. 1988) (quotation omitted).
CONCLUSION
For the reasons stated above, we reverse and remand the
sentence imposed on Colón-Miranda under Counts 60 and 61 for re-
sentencing in accordance with 18 U.S.C. § 1512(a)(2)(B). We reject all
other arguments raised by appellants, and therefore we affirm
appellants' convictions and sentences in all other aspects.
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