United States Court of Appeals
For the First Circuit
No. 01-2636
UNITED STATES OF AMERICA,
Appellee,
v.
LUÍS RIVERA NEWTON,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan Pérez Giménez, U.S. District Judge]
Before
Lynch, Circuit Judge,
Cyr, Senior Circuit Judge,
and Lipez, Circuit Judge.
Linda Backiel, on brief for appellant.
Aixa Maldonado-Quiñones, Assistant United States Attorney,
with whom H.S. Garcia, United States Attorney, and Sonia Torres-
Pabón, Assistant United States Attorney, were on brief for the
United States.
April 9, 2003
LIPEZ, Circuit Judge. On April 23, 2001, a jury
convicted Luis Rivera Newton ("Rivera Newton", a.k.a. "Luis el
Mono," "Luisito") of conspiracy to possess with intent to
distribute in excess of five kilograms of cocaine, more than one
kilogram of heroin, and multiple kilograms of marijuana. On
October 12, 2001, the district court sentenced Rivera Newton to
life imprisonment. Rivera Newton now appeals his conviction on
three grounds: 1) the district court improperly admitted
statements of co-conspirators, 2) the district court erroneously
excluded evidence of his prior acquittal in state court for a
multiple homicide that formed an integral component of the
government's conspiracy case, and 3) his attorneys labored under an
impermissible conflict of interest. He also challenges his
sentence, claiming that the district court erroneously calculated
his offense level under the United States Sentencing Guidelines
(the "Guidelines"). Finding no merit in Rivera Newton's
contentions, we affirm the defendant's conviction and decline to
set aside his sentence.
I.
We describe the facts in the light most favorable to the
verdict. United States v. Diaz, 300 F.3d 66, 69 (1st Cir. 2002).1
The evidence at trial described Rivera Newton's involvement in a
1
We recount facts here to convey a general picture of the
case, and provide additional detail in subsequent sections where it
is relevant to the legal analysis.
-2-
"hub-and-spoke conspiracy"2 to distribute multi-kilogram quantities
of cocaine, heroin, and marijuana from the early months of 1989 to
April 8, 1998. The drugs were sold at specialized distribution
points for each substance ("drug points") primarily located within
the Gautier Benitez Housing Project ("Gautier Benitez") in Cagua,
Puerto Rico. While the drug points were managed by different
individuals, every distribution point in Gautier Benitez was
ultimately controlled by Edsel Torres Gomez (a.k.a. "Negri"), the
de facto "hub" of the conspiracy. At trial, the government
portrayed Rivera Newton as Negri's right-hand man and presented
witnesses who testified to Rivera Newton's role as a conduit
between Negri and lower-level members of the conspiracy. Negri
also entrusted Rivera Newton with various high-level
responsibilities such as counting the money received in drug
transactions and testing the quality of the drugs purchased from
other dealers.
Rivera Newton's claims of error implicate, inter alia,
the testimony of co-conspirators who served as "spokes" of the
conspiracy. Several of these individuals were among the seven co-
defendants indicted with Rivera Newton on June 2, 1999. Of these
2
In a "hub-and-spoke conspiracy," a central mastermind, or
"hub," controls numerous "spokes," or secondary co-conspirators.
These co-conspirators participate in independent transactions with
the individual or group of individuals at the "hub" that
collectively further a single, illegal enterprise. See Kotteakos
v. United States, 328 U.S. 750, 754-55 (1946).
-3-
seven, six pled guilty in exchange for reduced sentences and agreed
to testify against Rivera Newton at trial. The seventh co-
defendant, Francisco Fernandez Rios ("Fernandez Rios") also
testified against Rivera Newton in exchange for a reduction in his
sentence for a previous conviction. Their varying roles in the
conspiracy and the substance of the testimony at issue in this
appeal are best understood in the context of the two major
activities undertaken by the conspiracy -- trafficking drugs and
protecting Negri's drug empire.
A. Drug Trafficking
The government's first witness was Javier Perez Alicea
("Perez Alicea"), a drug supplier who testified that from 1993 to
1995 he sold approximately 200 kilograms of cocaine to a close
confidant of Negri named Jimmy Peligro. Perez Alicea conveyed
these drugs to Peligro through approximately 20 to 25 transactions,
and Peligro in turn arranged for the cocaine to be sold at the
appropriate drug points in Gautier Benitez. Perez Alicea further
testified that Rivera Newton participated in three or four of these
transactions, helping Peligro and Perez Alicea to count the money
being exchanged and testing the quality of the cocaine.
Fernandez Rios, the government's next witness, was the
main supplier of drugs to Negri's organization. Beginning in 1992,
he sold between 1,500 and 1,600 kilograms of cocaine and
approximately 1,000 pounds of marijuana to Negri directly and to an
-4-
associate of Negri named Yuco. Most of these drugs were
distributed to drug points managed by Rivera Newton in Gautier
Benitez, although Negri also wholesaled some of the drugs to drug
points controlled by other traffickers.
The third drug supplier to testify for the government was
Cesar Escobar Vazquez ("Cesar Escobar"). Cesar Escobar supplied a
total of two kilograms of heroin to Negri's organization for resale
in Gautier Benitez,3 and from June to July 1994 he also sold 2 to
3 kilograms of heroin to a drug dealer named "Davey." Davey rented
a drug point from Negri in Barriada Morales and was one of the two
victims in the "Isla Verde murders" discussed below.
B. Protecting Negri's Drug Empire
During the period covered by the indictment, various
members of the conspiracy took steps to eliminate threats to
Negri's drug empire. Of particular relevance to this case are two
multiple murders that were committed in furtherance of the
conspiracy. The first murders, referred to at trial as the "Isla
Verde murders," eliminated Davey and another drug dealer in
retaliation for their unauthorized encroachment on Negri's drug
points. Perez Alicea testified that he was supplying drugs in
October 1994 to an individual named Wes Solano who, according to
3
While Negri primarily operated out of Gautier Benitez,
various drug suppliers testified that Negri also controlled a
limited number of drug points in two other housing projects --
Villa Del Ray and Barriada Morales.
-5-
appellant, was "the head of one of Puerto Rico's most extensive and
violent drug organizations." Solano frequented an apartment that
Perez Alicea rented in the Isla Verde area. At one point he
arranged for Negri, Jimmy Peligro, and Cano Newton (Rivera Newton's
brother) to conduct surveillance from the apartment to determine
whether Davey and the second drug dealer were infringing on Negri's
drug points. After confirming his suspicions, Solano and an
accomplice killed the two drug dealers the next day. Later, Solano
justified the killings to Perez Alicea as the elimination of two
individuals who "were trying to outsmart Negri with regard
to . . . certain drug points."
The second multiple murder, dubbed the "Cayey Massacre"
by the Puerto Rico press, was the brutal torture and murder of four
individuals who supposedly stole $4.2 million in drug proceeds that
Negri had temporarily stored at Fernandez Rios's residence.
Fernandez Rios testified that avenging this theft was particularly
important for Negri not only to recover the money itself, but also
because "the loss of that money had to be justified in the eyes of
the Colombians" who supplied drugs to Negri and were presumably
concerned with the security of his operation.
On March 13, 1994, Negri informed Perez Alicea that he
had kidnaped the four individuals who committed the robbery. One
of the individuals was shot and killed immediately, and Rivera
Newton helped direct the interrogation of the other three. Negri's
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associates tortured the three individuals by tearing out their
fingernails, burning them with acid, and forcing them to drink
gasoline. They then threw the accused thieves in the back seat of
a car, where they were shot and set on fire. Rivera Newton's
participation in the Cayey Massacre was a central issue at trial,
and ultimately an aggravating factor that led the district court to
sentence him to life imprisonment, the maximum sentence permitted
by the Guidelines.
II.
A. Hearsay Statements Admitted Under Rule 801(d)(2)(E)
Rivera Newton claims that the district court erroneously
admitted two groups of hearsay statements under Rule 801(d)(2)(E)
of the Federal Rules of Evidence: 1) statements made by Solano to
Perez Alicea describing the Isla Verde murders, and 2) statements
made by Prieto Capota, described at trial as "Negri's triggerman,"
to Cesar Escobar concerning the Cayey Massacre and Isla Verde
murders.
Federal Rule of Evidence 801(d)(2)(E) excludes from the
category of hearsay "statement[s] by a coconspirator of a party
during the course and in furtherance of the conspiracy." Fed. R.
Evid. 801(d)(2)(E). As a predicate for admitting evidence under
this rule, the trial court must conclude that "it is more likely
than not that the declarant and the defendant were members of a
conspiracy when the hearsay statement was made, and that the
-7-
statement was in furtherance of the conspiracy." United States v.
Petrozziello, 548 F.2d 20, 23 (1st Cir. 1977). In our circuit,
this determination is referred to as a Petrozziello ruling.
Significantly, the trial court is not required to decide the
Petrozziello question prior to admitting hearsay statements under
Rule 801(d)(2)(E), but may "admit the statement[s] provisionally,
subject to its final Petrozziello determination at the close of all
the evidence." United States v. Isabel, 945 F.2d 1193, 1199 n.10
(1st Cir. 1991). Hence, to properly preserve an objection to a
Petrozziello ruling, a defendant must ordinarily object both when
the hearsay statements are provisionally admitted and again at the
close of all the evidence.
Generally, "we review the trial court's determination
that statements were coconspirator statements under the clear error
standard." United States v. Marino, 277 F.3d 11, 25 (1st Cir.
2002) (citing United States v. Mojica-Baez, 229 F.3d 292, 304 (1st
Cir. 2000)). This deferential standard of review places a heavy
burden on a defendant seeking to overturn a trial court's
Petrozziello ruling:
A finding is clearly erroneous when although
there is evidence to support it, the reviewing
court on the entire evidence is left with the
definite and firm conviction that a mistake
has been committed. Where the evidence is
susceptible of two plausible interpretations,
the trier of fact's choice between them cannot
be clearly erroneous.
-8-
Reich v. Newspapers of New England, Inc., 44 F.3d 1060, 1080 (1st
Cir. 1995) (internal quotation marks and citations omitted).4
Applying this standard, we consider the two hearsay statements
challenged by Rivera Newton.
1. Statements made by Solano to Perez Alicea
describing the Isla Verde murders
Perez Alicea, one of Negri's drug suppliers, testified
over the defendant's objections to a conversation he had with
Solano about the Isla Verde murders. According to Perez Alicea,
Solano told him that the Isla Verde victims were murdered because
"they were trying to get away with certain things at some of the
drug points that belonged to Negri." Rivera Newton claims that the
court's decision to admit this statement was clear error for two
reasons: 1) the court had no basis for concluding that Solano (the
declarant) and Rivera Newton were co-conspirators, and 2) assuming
arguendo that Solano and Rivera Newton were co-conspirators, the
hearsay statements could not logically have been made "in
furtherance of the conspiracy," Petrozziello, 548 F.2d at 23,
4
The parties dispute whether our review should be governed by
the even more deferential plain error standard, in light of Rivera
Newton's conceded failure to renew his objection to the court's
Petrozziello determination at the close of all the evidence.
Rivera Newton argues that his persistent, standing objections to
the court's admission of hearsay testimony throughout the trial
cured any defect arising from his failure to object yet again after
all of the evidence was submitted. Because we conclude that the
trial court did not commit clear error in admitting the hearsay at
issue, we do not reach the question of whether the trial court's
Petrozziello ruling should only be subject to review for plain
error.
-9-
because they were made after the commission of the Isla Verde
murders.
We turn first to the question of whether the district
court clearly erred in determining that Solano and Rivera Newton
were co-conspirators. The defendant points us to United States v.
Sepulveda, 15 F.3d 1161 (1st Cir. 1993), in which we held that "a
coconspirator's statement, standing alone, is insufficient to meet
the preponderance standard of Rule 801(d)(2)(E) . . . [A]dmitting
the statement into evidence requires some extrinsic proof of the
declarant's involvement in the conspiracy." Id. at 1181. Rivera
Newton argues that the government was therefore "required to show,
by some independent evidence, that [he] was related to the
conspiracy to kill two people in Isla Verde, and the existence of
a conspiracy between [him] and . . . Wes Solano."
This argument construes the relevant conspiracy too
narrowly. We observed in United States v. Martinez-Medina, 279
F.3d 105 (1st Cir. 2002), that
each coconspirator need not know of or have
contact with all other members, nor must they
know all of the details of the conspiracy or
participate in every act in furtherance of it.
The [finder of fact] may infer an agreement
circumstantially by evidence of, inter alia, a
common purpose (such as a purpose to sell
illicit drugs), overlap of participants, and
interdependence of various elements in the
overall plan.
Id. at 113-14; see also Marino, 277 F.3d at 25 ("As long as it is
shown that a party, having joined a conspiracy, is aware of the
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conspiracy's features and general aims, statements pertaining to
the details of plans to further the conspiracy can be admitted
against the party even if the party does not have specific
knowledge of the acts spoken of.") (internal citations omitted).
Here, the jury convicted Rivera Newton for broadly conspiring "to
knowingly and intentionally possess with the intent to distribute"
large quantities of illicit drugs. The indictment specified that
the object of this conspiracy was so (sic)
that the defendants and their co-conspirators
would earn money illicitly in and through drug
trafficking and other drug related activities.
The manner and the means by which the unlawful
conspiracy was accomplished included the
following . . . . [The conspirators] would []
contract killers that would be hired . . . to
intimidate and kill rival gang members and to
maintain and stabilize control of the
organization's drug distribution points.
The evidence at trial highlighted the importance of the Isla Verde
murders in furthering the objectives of this larger conspiracy to
earn money for Negri's drug organization through the illicit
traffic of narcotics -- a conspiracy to which Rivera Newton was
undoubtedly a party, viewing the evidence in the light most
favorable to the verdict. See Diaz, 300 F.3d at 69. Accordingly,
the validity of the district court's Petrozziello ruling does not
turn on the narrow question of whether Rivera Newton conspired in
the commission of the Isla Verde murders. To uphold the district
court's Petrozziello ruling under a clear error standard we need
only confirm that the evidence at trial permitted the trial judge
-11-
to conclude that Solano and Rivera Newton were co-conspirators in
the broader drug trafficking conspiracy.
Even setting the disputed statements to one side, see
Sepulveda, 15 F.3d at 1181, Perez Alicea's testimony could
reasonably have led the district court to conclude that Solano
participated in the drug trafficking conspiracy by helping to
eliminate individuals who encroached on Negri's drug points. Perez
Alicea testified at length to an encounter with Negri and several
other individuals in October 1994. Negri had obtained the keys to
an apartment in Isla Verde that Perez Alicea rented and shared with
Solano, and Negri's associates asked Perez Alicea for the location
of "the apartment that Wes [Solano] had." After Perez Alicea led
them to the apartment, Jimmy Peligro, one of Negri's associates,
made phone calls in an effort to locate Solano. The other members
of Negri's party began surveillance of the apartment next door to
Perez Alicea, discussing at one point how the individuals within
the apartment were "really going to be fucked" once Solano showed
up. Perez Alicea further testified that the next day, Negri's
associates confirmed that they had made contact with Solano; within
the next three to five days Solano revealed to Perez Alicea in the
conversation at issue that he had committed the Isla Verde murders.
Perez Alicea's uncontradicted testimony describing the period
immediately preceding the Isla Verde murders supports the
interpretation that Solano participated in the broad conspiracy
-12-
outlined in the indictment. Accordingly, the trial court did not
clearly err in determining that Rivera Newton and Solano were co-
conspirators within the meaning of Rule 801(d)(2)(E).
Rivera Newton's alternative argument that Solano's
comments about the Isla Verde murders did not "further the
objectives of the conspiracy" is similarly unavailing. The
defendant argues that an after-the-fact description of the Isla
Verde murders could not have furthered the objective of eliminating
individuals who by that time were already dead. Once again, this
argument construes the relevant "objective" of the conspiracy too
narrowly. The Petrozziello requirements are satisfied so long as
Solano's act of communicating the motivation behind the murders and
the manner in which they were committed furthered the broad
objectives of the drug trafficking conspiracy. In this instance,
Solano, who the appellants concede "acted, at times, as a hired gun
for Negri," was informing a major drug supplier to Negri's
organization that he had committed a multiple murder to protect
Negri's drug points from unauthorized use. The trial court could
reasonably have determined that this conversation served the
important function of reassuring Perez Alicea that Negri's drug
organization was effectively addressing external threats to its
security and profitability. See United States v. Ammar, 714 F.2d
238, 252 (3d Cir. 1983) ("Statements between the conspirators which
provide reassurance, serve to maintain trust and cohesiveness among
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them, or inform each other of the current status of the conspiracy
further the ends of the conspiracy and are admissible so long as
the other requirements of Rule 801(d)(2)(E) are met.").5
2. Statements made by Prieto Capota to Cesar Escobar
concerning the Cayey Massacre and Isla Verde
murders
Approximately one month after the Cayey Massacre, Prieto
Capota recounted in detail the torture and murder of the four Cayey
victims during a conversation with Cesar Escobar, another of
Negri's drug suppliers. At trial, Cesar Escobar repeated Prieto
Capota's description of the Cayey Massacre to the jury. Although
the defendant concedes that he and Prieto Capota (the declarant)
were co-conspirators within the meaning of Rule 801(d)(2)(E), he
argues that the statements are nonetheless inadmissible for two
reasons: 1) the statements did not further the objectives of the
conspiracy as required by Petrozziello, and 2) the statements were
unduly prejudicial and should have been excluded under Rule 403.
Once again, in light of Rivera Newton's failure to raise the Rule
5
Rivera Newton also claims, belatedly, that the trial court
should have excluded this portion of Perez Alicea's testimony on
grounds that its probative value was outweighed by its prejudicial
effect. Fed. R. Evid. 403. Because Rivera Newton never raised
this objection below, we review for plain error only. United
States v. Balsam, 203 F.3d 72, 85-86 (1st Cir. 2000). Applying
this highly deferential standard, we do not find that the trial
court's decision to admit this testimony under Rule 403 was an
error "so shocking [as to] seriously affect the fundamental
fairness and basic integrity of the proceedings conducted below."
United States v. Griffin, 818 F.2d 97, 100 (1st Cir. 1987).
-14-
403 objection below, we review the trial court's decision to admit
Cesar Escobar's testimony under Rule 403 for plain error, and apply
a clear error standard to the trial court's Petrozziello
determination. These claims of error are indistinguishable from
Rivera Newton's Petrozziello and Rule 403 arguments challenging the
admission of Perez Alicea's testimony, and we reject them for the
reasons outlined above.6
B. The Exclusion of Rivera Newton's Acquittal on State
Murder Charges Stemming from the Cayey Massacre
Prior to trial, the government filed a motion in limine
to prohibit Rivera Newton from alluding to his previous acquittal
in state court on murder charges stemming from the Cayey Massacre.
The district court granted the motion, relying, inter alia, on our
prior decisions specifying that "a district court has discretion to
exclude from evidence acquittals or other favorable outcomes of
prior state court proceedings involving the same subject matter."
United States v. Marrero-Ortiz, 160 F.3d 768, 775 (1st Cir. 1998);
6
Rivera Newton cursorily raises Petrozziello and Rule 403
claims challenging the trial court's admission of other testimony
from Cesar Escobar regarding 1) an argument between Negri and
Davey, one of the Isla Verde victims, and 2) Cesar Escobar's
conversations with an ex-partner and a car dealer in which he was
told that Davey had been killed at Isla Verde. "[I]ssues adverted
to in a perfunctory manner, unaccompanied by some effort at
developed argumentation, are deemed waived." United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990). Even if Rivera Newton had
not abandoned these arguments on appeal, we would have no cause to
reverse the district court's decision to admit this testimony under
the plain error standard of review occasioned by appellant's
failure to raise contemporaneous objections to these statements
below.
-15-
see also United States v. Smith, 145 F.3d 458, 462 (1st Cir. 1998).
Citing Federal Rule of Evidence 403, the judge also concluded that
"the probative value of the acquittals is substantially outweighed
by the danger of unfair prejudice."
Although Rivera Newton does not challenge the district
court's authority to grant the motion in limine, he argues that the
prosecution took unfair advantage of the trial court's ruling by
repeatedly referring to the fact that he had been charged with the
Cayey murders, knowing that he could not dispel the prejudice
arising from those references by introducing the fact of his
acquittal. As a threshold matter, both parties misrepresent the
extent to which the government referred to Rivera Newton's state
murder charges. The defendant alleges that the prosecution
"allowed the fact of the prior trial to permeate its evidence,"7
while the government retorts that "[a]t no time during trial were
appellant's charge, arrest or acquittal mentioned." In fact, our
7
This misstatement perhaps reflects the appellant's efforts to
conflate testimony concerning the Cayey Massacre itself with
testimony referring to the state murder charges brought against
Rivera Newton in the aftermath of the incident. The government
matter-of-factly concedes in its brief that the former was a major
element of their case, asserting that "the Cayey Massacre proved to
be this violent organization's way to recuperate millions of
dollars in drug proceeds stolen from them, and a way to demand
respect from non-members." We agree with the government that the
introduction of evidence pertaining to Rivera Newton's acquitted
conduct did not preclude the judge from excluding the fact of
Rivera Newton's acquittal. United States v. Candelaria-Silva, 166
F.3d 19, 35 (1st Cir. 1999); Smith, 145 F.3d at 462 (1st Cir.
1998).
-16-
review of the record reveals a single instance in which the
government elicited a reference to Rivera Newton's state murder
trial. During the prosecution's direct examination of Antonio
Garay Fonseca, a longtime acquaintance of Rivera Newton, the
following exchange occurred:
Q: I ask you, sir, have you ever heard about what is
known as the Cayey massacre?
A: Yes.
Q: How is it that you, yourself find out? Where
were you when you found out?
A: I was in jail here in the prison in Guaynabo.
Q: And I ask you, sir, now, have you ever discussed
the event of the Cayey massacre with Luis El Mono
[Rivera Newton]?
A: Yes, on several occasions.
Q: Can you please tell us what was the contents of
that conversation?
A: Well, I asked him how his case, the case
involving the massacre was coming along.
Rivera Newton argues that the court erred by failing sua
sponte to alleviate the prejudice from this exchange in one of two
ways: 1) the court could have rescinded its ruling in limine and
permitted Rivera Newton to "present the other half of the story" by
introducing the fact of his acquittal, or 2) the court could have
expressly instructed the jury not to consider the state murder
charges as evidence of Rivera Newton's guilt on the federal
indictment. Because Rivera Newton did not ask the trial court to
-17-
rescind its earlier ruling excluding evidence of his acquittal or
give the aforementioned jury instruction, we review the errors
alleged for plain error. Garay Fonseca's reference to Rivera
Newton's state prosecution for murder, occurring within the context
of a nine-day trial that generated over nine hundred pages of trial
testimony, did not require the court to reverse its earlier
decision to exclude evidence of Rivera Newton's acquittal or
provide a curative jury instruction. The former remedy presented
an unwarranted risk of confusing the jury, while the latter would
likely have attracted more attention to the state murder charges
than Garay Fonseca's remark. In any event, this reference was not
"so shocking that [it] seriously affect[ed] the fundamental
fairness and basic integrity of the proceedings conducted below."
Griffin, 818 F.2d at 100.
Rivera Newton also draws our attention to a second
reference to his state murder charges elicited by his own lawyers
over the government's objection. Jose Quiñonez Robles, the FBI
agent assigned to Rivera Newton's case, was asked by defense
counsel during cross-examination whether he was aware that Rivera
Newton had no criminal record. After the court overruled the
government's objection to the question, Quiñonez responded: "Yes,
I know that he was accused in the local system for participating in
the Cayey massacre." Pressed further, Quiñonez clarified that
Rivera Newton had only been accused of murder at the state level,
-18-
and that to his knowledge the defendant did not have a criminal
record.
Quiñonez's evasive response to defense counsel's question
regarding Rivera Newton's criminal record is disturbing. As an
experienced FBI agent, he presumably understood the difference
between a criminal record and a criminal charge, and his answer was
clearly not responsive to defense counsel's inquiry. Nonetheless,
the defense did not move to strike Quiñonez's testimony. Arguably,
his reference to the state charges even benefitted the defense.
There had already been a reference to the state case in the earlier
testimony of Garay Fonseca. Quiñonez's subsequent mention of the
state accusations permitted Rivera Newton's counsel to extract the
concession that, to the witness's knowledge, Rivera Newton had no
criminal record, thereby prompting a possible inference by the jury
that Rivera Newton was acquitted of the state charges. Regardless,
we find no error, let alone plain error, in the trial court's
failure to instruct the jury sua sponte to disregard the statement.
C. Conflict of Interest
Three days before the beginning of Rivera Newton's trial,
the government alerted the district court to information obtained
from Fernandez Rios, a government witness, regarding arrangements
by Negri's drug organization to finance the legal defense of Rivera
Newton and other criminal defendants associated with the
organization in prior state proceedings. Specifically, Fernandez
-19-
Rios revealed during an interview that after several members of
Negri's drug organization were indicted in March 1995 on state
murder charges stemming from the Cayey Massacre, he informed a
Colombian drug source named "Mauricio" that the Cayey defendants
needed financial assistance for their legal defense. Mauricio
agreed to send Fernandez Rios forty kilograms of cocaine to pay for
their legal expenses, and Fernandez Rios subsequently arranged to
sell the cocaine in the United States for approximately $20,000 per
kilogram. The proceeds from this drug shipment were turned over to
Ramon Delgado ("Bronco"), an attorney who was closely associated
with Negri. While Fernandez Rios could not identify the attorneys
who received money from Bronco, he had reason to believe that Edgar
Vega-Pabón, one of Rivera Newton's attorneys in the state
proceedings, and now one of his attorneys in this federal case, may
have been paid from this drug fund for defending an individual
named Ismael Vega in another case. However, the government had no
direct evidence that Bronco paid Vega-Pabón to defend Rivera
Newton, or that José Andreu, Rivera Newton's other trial attorney
in this case, ever received money from Bronco. In fact, during the
colloquy between the court and attorneys from both sides that
followed the government's presentation of these facts, Vega-Pabón
denied that he had ever knowingly received funds from Bronco.
According to Rivera Newton, the fact that his attorneys
may have been compensated through Bronco's legal defense fund
-20-
created a possible conflict of interest for the following reason:
if Vega-Pabón and Andreu feared that Fernandez Rios would expose
them as beneficiaries of Bronco's legal defense fund, they may have
tempered their cross-examination of a crucial witness for the
government.8 Alerted to the possibility of a conflict, the
district court questioned Rivera Newton to ensure 1) that he was
aware of the potential conflict of interest, 2) that his attorneys
had explained the relevant circumstances to him, and 3) that he
nonetheless wished to retain Andreu and Vega-Pabón as defense
counsel. After hearing the court recite the information conveyed
earlier by the government, Rivera Newton confirmed that his
attorneys had previously discussed the matter with him, and assured
the court that he wanted them to continue as counsel. Rivera
Newton now claims on appeal, however, that the court's failure to
more fully explain how this conflict of interest could manifest
itself at trial constitutes reversible error under the Sixth
Amendment: "[F]aced with these troubling assertions, [the court]
had a duty to describe or illustrate why Appellant might prefer to
have counsel not likely to be distracted by the threat that
8
Rivera Newton articulates the gravity of the conflict more
colorfully in his Reply Brief, arguing that "Andreu was virtually
precluded from cross-examining Fernandez, lest Fernandez accuse him
of knowing receipt of drug proceeds (at a minimum) from the witness
stand. Indeed, Andreu's mere presence at counsel table was a
liability for Appellant because the jury might well infer that his
role was to represent the interests of the conspiracy."
-21-
[Fernandez Rios] would persist in his allegations [that counsel had
been compensated by Bronco]."
The defendant's claim of error is styled somewhat oddly.
He expressly disclaims any argument that the trial court's failure
to adequately explain the potential conflict of interest induced
him to retain counsel who rendered ineffective assistance,
specifying that "[r]ather than an ineffective assistance claim,
Appellant has raised only the narrow issue of the legal sufficiency
of the District Court's colloquy to determine whether Appellant was
aware of a potential conflict of interest with his attorney and
wished to waive it" (emphasis added). Put another way, Rivera
Newton argues that the trial court's failure to describe adequately
the conflict of interest constitutes reversible error requiring a
new trial, irrespective of the quality of defense counsels'
performance: "[I]t is the failure to explain the nature of the
conflict that would allow Appellant to make an intelligent waiver,
not any specific trial error, that requires this court's remedial
attention."
The circumstances of this case provide no basis for
overturning a conviction on Sixth Amendment grounds absent any
allegation by the defendant that the performance of defense counsel
suffered as a result of the alleged conflict. In Mickens v.
Taylor, 535 U.S. __, 122 S.Ct. 1237 (2002), the Supreme Court
expressly rejected a rule of automatic reversal in cases where a
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defense attorney's conflict of interest does not adversely affect
counsel's performance, observing that such a rule "makes little
policy sense." Id. at 1244. The Court elaborated that a trial
court's failure to adequately investigate a potential conflict of
interest
neither renders it more likely that counsel's
performance was significantly affected nor in
any other way renders the verdict unreliable.
Nor does the trial judge's failure to make the
Sullivan-mandated inquiry9 [] make it harder
for reviewing courts to determine conflict and
effect, particularly since those courts may
rely on evidence and testimony whose
importance only becomes established at the
trial.
Id. Because adverse performance is the touchstone of Sixth
Amendment error under the Supreme Court's actual conflict-of-
interest jurisprudence, Mickens, 122 S.Ct. at 1244 n.5, Rivera
Newton's argument for per se reversal on grounds that the judge
inadequately explained the nature of the particular conflict is at
odds with controlling Supreme Court precedent.10
9
In Cuyler v. Sullivan, 446 U.S. 335 (1980), the Supreme Court
promulgated a rule requiring trial courts to conduct an inquiry if
they "know or reasonably should know" that defense counsel is
laboring under a conflict of interest. Id. at 347.
10
Our decision in United States v. Foster, 469 F.2d 1 (1st Cir.
1972), relied upon heavily by Rivera Newton, does not permit
automatic reversal here. In Foster, we exercised our supervisory
powers to require district courts to explain to defendants in
detail the risks of proceeding to trial "where one attorney speaks
for two or more defendants." Id. at 4-5. However, this rule, now
codified as Federal Rule of Criminal Procedure 44(c), is expressly
limited to cases of joint or multiple representation, id. at 4, a
circumstance that does not exist on the facts before us.
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D. The District Court's Calculation of Rivera Newton's
Offense Level
Applying sections 2D1.1 and 2A1.1 of the United States
Sentencing Guidelines, the district court sentenced Rivera Newton
to life imprisonment, the maximum sentence permitted under the
Guidelines. The court predicated its sentence on two alternative
Guidelines calculations, either one of which, standing alone,
mandated the imposition of a life sentence. First, applying the
"murder cross reference" provision of U.S.S.G. § 2D1.1(d)(1), the
court determined by a preponderance of the evidence that Rivera
Newton's role in the Cayey Massacre warranted a base offense level
of 43. After adding a three-level enhancement for Rivera Newton's
leadership role in the conspiracy and a two-level enhancement for
possession of a weapon during the course of the offense, the court
calculated a total offense level of 48.11 Alternatively, the court
attributed to Rivera Newton responsibility for distributing in
excess of 150 kilograms of cocaine, resulting in a base offense
level of 38. U.S.S.G. § 2D1.1(c)(1). The court increased Rivera
Furthermore, under Foster, violations of this rule do not trigger
automatic reversal, but merely shift the burden of persuasion to
the government "to demonstrate from the record that prejudice to
the defendant was improbable." Id. at 5. Here, the government
would easily satisfy this burden in the absence of any allegation
by Rivera Newton that he was prejudiced by defense counsel's
performance at trial.
11
As the district court noted, "the guidelines do not go above
43." Accordingly, any offense level of 43 or above is punishable
by a life sentence.
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Newton's offense level under this second calculation to 43 after
adding five points for leadership and possession of a weapon.
Hence, Rivera Newton was subject to life imprisonment under either
sentencing calculation.
On appeal, Rivera Newton challenges both Guidelines
calculations on three grounds: 1) the court violated his due
process rights by applying U.S.S.G. § 2A1.1 after finding by a
preponderance of the evidence that he had participated in the Cayey
Massacre, 2) the court unreasonably attributed to Rivera Newton
responsibility for the entire quantity of drugs handled by Negri's
organization, and 3) the court erroneously concluded that Rivera
Newton was a leader in the drug conspiracy. We find no reversible
error in the district court's application of the murder cross-
reference provision of section 2D1.1(d)(1), which alone results in
a base offense level of 43. Accordingly, we do not reach
appellant's claims implicating the district court's drug
calculation and three-level leadership enhancement.
1. Legal analysis
Section 2D1.1 is the provision of the Guidelines that
governs the sentencing of defendants like Rivera Newton convicted
of "Unlawful Manufacturing, Importing, Exporting or Trafficking;
Attempt or Conspiracy." Subsection (d) of this provision, entitled
"Cross References," provides the following: "If a victim was killed
under circumstances that would constitute murder under 18 U.S.C.
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§ 1111 had such killing taken place within the territorial or
maritime jurisdiction of the United States, apply § 2A1.1 (First
Degree Murder)." Section 2A1.1 of the Guidelines, in turn, directs
the court to assign a base offense level of 43 to any defendant
whose conduct falls within the provision. The district court
invoked § 2A1.1 in calculating defendant's sentence, determining
that "although he did not participate directly in the actual
killing [of the Cayey Massacre victims], certainly he was part of
the planning, he was there . . . . He participated in the torturing
after these three individuals had been kidnaped at a distance from
Gautier Benitez."
We review the district court's application of a
particular sentencing guideline de novo. United States v. Padro
Burgos, 239 F.3d 72, 76 (1st Cir. 2001). Appellant argues that
there is an element of unfairness in the district court's decision
to impose a sentence at the upper end of the guideline range for
conduct that Rivera Newton was previously acquitted of in state
court. Nonetheless, as Rivera Newton concedes, the law as it
currently stands affords us no basis for overturning his sentence
on due process grounds. As we observed in United States v.
Lombard, 72 F.3d 170 (1st Cir. 1995): "A sentencing court may . .
. consider relevant conduct of the defendant for purposes of making
Guidelines determinations, even if he has not been charged with --
and indeed, even if he has been acquitted of -- that conduct, so
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long as the conduct can be proved by a preponderance of the
evidence." Id. at 176 (original emphasis).
Our post-Apprendi jurisprudence provides no succor to the
defendant. In Apprendi v. New Jersey, 530 U.S. 466 (2000), the
Supreme Court ruled that "any fact that increases the penalty for
a crime beyond the prescribed statutory maximum must be submitted
to a jury, and proved beyond a reasonable doubt." Id. at 490
(emphasis added). Our decisions following Apprendi emphasize that
district court judges have broad latitude to make factual findings
that vary a defendant's sentence within the prescribed statutory
range. Indeed, in United States v. Martinez-Medina, 279 F.3d 105
(1st Cir. 2002), we rejected an Apprendi argument nearly identical
to Rivera Newton's challenge in this case. The defendants in
Martinez-Medina similarly attempted to overturn life sentences on
grounds that "the sentencing court violated Apprendi by finding,
under a preponderance of the evidence standard, that they played a
role in various conspiracy murders, thus subjecting them to life
imprisonment." Id. at 122. There we noted that "[t]he argument
fails . . . because Apprendi does not apply to findings made for
purposes of the sentencing guidelines, such as the court's
determination that the appellants were accountable for the
murders." Id.
However, Rivera Newton now requests that we expand
Apprendi to require juries to find beyond a reasonable doubt that
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the defendant committed murder before the sentencing court is
permitted to apply the "cross-reference" provision of section
2D1.1(d)(1). We decline this invitation to expand Apprendi, as we
have on prior occasions:
We . . . decline the appellant's invitation to
expand the Apprendi rule . . . . Giving
[Apprendi its] plain meaning, sentence-
enhancing facts still may be found by the
judge under a preponderance-of-the-evidence
standard as long as those facts do not result
in a sentence that exceeds the original
statutory maximum. Indeed, the Apprendi Court
itself commented that nothing in the history
of criminal jurisprudence suggests that it is
impermissible for judges to exercise
discretion in imposing a judgment within the
range prescribed by statute.
United States v. Robinson, 241 F.3d 115, 121 (1st Cir. 2001)
(internal quotation marks omitted) (original emphasis).
2. Factual findings
Rivera Newton further contends that the district court's
application of U.S.S.G. § 2D1.1(d)(1) was not supported by a
preponderance of the evidence. We review the factual findings
underlying the district court's application of a particular
sentencing guideline for clear error. Padra Burgos, 239 F.3d at
76. The court heard eyewitness testimony from William Del Valle-
Caraballo, a resident of the Gautier Benitez housing project, who
observed Rivera Newton holding a .38 caliber nickel-plated pistol
the night before the Cayey Massacre during a meeting with Negri and
other members of the drug trafficking organization. The next day,
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Del Valle observed three individuals with bloodstained clothing as
they were pulled out of a car and taken behind a neighboring
building. Del Valle further testified that after the three
individuals were brought back to the car, Rivera Newton raised and
lowered a red gasoline can with a white spout as if he were
spraying gasoline inside the vehicle.
Much of Del Valle's testimony was corroborated by Cesar
Escobar, who testified that he was told by Prieto Capota that the
Cayey victims were thrown into the back seat of a car, forced to
drink gasoline, and then executed and set on fire. Finally, Garay
Fonseca, Negri's long-time acquaintance, testified that Rivera
Newton admitted to committing the murders:
Q: Sir, I ask you, did there ever come a time when
the defendant, Luis El Mono, admitted to you what
was his participation in the massacre of Cayey?
A: Yes.
Q: And what did he admit to you?
A: Well, his words, he said that he killed them.
In the face of this evidence, we find no clear error in the
district court's decision to invoke section 2D1.1(d)(1) in
assigning the defendant a base offense level of 43.
III.
Notwithstanding defense counsel's vigorous efforts on
Rivera Newton's behalf throughout this appeal, our close review of
the record reveals no error that warrants overturning the
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conviction or sentence. Accordingly, the judgment of the district
court is affirmed.
So ordered.
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