United States v. Medina

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals
For the First Circuit

No. 00-2267
No. 01-1974

UNITED STATES OF AMERICA,
Appellee,

v.

OTONIEL MEDINA,
JOSÉ MEDINA,
Defendants, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, Jr., U.S. District Judge]

Before
Boudin, Chief Judge,
Torruella, Circuit Judge,
and Baldock,* Senior Circuit Judge.

Charles W. Groce, III, by appointment of the court, for
appellant Otoniel Medina.
Ralph J. Perrotta, by appointment of the court, for appellant
José Medina.
Cynthia A. Young, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief for
appellee.

August 27, 2003

*
Of the Tenth Circuit, sitting by designation.
 BALDOCK, Senior Circuit Judge. Defendant Otoniel Medina

and Defendant José Medina each appeal their convictions, following

a joint jury trial, on conspiracy and drug charges.1 José Medina

also appeals his sentence. This Court has jurisdiction

pursuant to 28 U.S.C. § 1291. We affirm.

I.

Defendants José and Otoniel Medina are brothers.

Evidence at trial indicated José was the leader of a cocaine

distribution conspiracy. Otoniel lived with his brother and

assisted in the sale of cocaine; making deliveries, accepting

payments, and taking orders when José was not available.

In December 1999, Edward Giargiari arranged to purchase

one half kilogram of cocaine from José. On December 9, José

delivered a quarter kilogram and arranged to deliver the remaining

amount the following evening. Following the initial sale,

Giargiari was arrested by members of the local police. The police

searched his hotel room and discovered the cocaine and $8,000 in

1
The jury convicted Defendant Otoniel Medina on one count of
conspiracy to distribute cocaine in violation of 21 U.S.C. § 846,
and one count of possession with the intent to distribute cocaine
in violation of 21 U.S.C. § 841(a)(1). The district court
sentenced Otoniel to 63 months imprisonment. The jury convicted
Defendant José Medina on one count of conspiracy to distribute
cocaine in violation of 21 U.S.C. § 846, two counts of possession
with intent to distribute and distribution of cocaine in violation
of 21 U.S.C. § 841(a)(1), and two counts of unlawful use of a
communication facility in violation of 21 U.S.C. § 843(b). The
district court sentenced José to 121 months imprisonment.

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cash. Following his arrest, Giargiari agreed to work with the Drug

Enforcement Administration as a cooperating witness. Giargiari

named José as his supplier and confessed to the planned purchase of

additional cocaine.

Over the next three months, Giargiari, at the direction

of DEA agents, contacted José and arranged to purchase additional

quantities of cocaine. On December 23, 1998, Giargiari arranged to

purchase a quarter kilogram of cocaine. José sent an intermediary,

co-defendant Josué Vázquez, to deliver the cocaine and accept

payment. In March 1999, Giargiari arranged to purchase one

kilogram of cocaine. José conducted the sale. Otoniel and Vázquez

each were present and assisted with the transaction. After

Giargiari confirmed the presence of one kilogram of cocaine, law

enforcement agents interrupted the sale and arrested José, Otoniel,

and Vázquez. The agents recovered a paper bag containing 1.2

kilograms of cocaine.

Following his arrest, José consented to a search of the

residence he shared with Otoniel. During the search, officers

recovered a scale, cash, cocaine, and other evidence of narcotics

possession and distribution.

At trial, Giargiari and several other Government

witnesses testified that they had purchased significant amounts of

cocaine from José on a regular basis. Vázquez and José's cousin,

José Ortiz, both testified that they had sold or delivered cocaine

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on José's behalf. Most witnesses also testified that Otoniel

assisted his brother in selling cocaine.

A key component of Defendants' trial strategy was to

discredit the Government's witnesses, most of whom were admitted

drug dealers that had received immunity or a reduced sentence in

exchange for their testimony. During trial, cross-examination of

a key Government witness revealed impeachment evidence the

Government had not previously disclosed to Otoniel. Cross-

examination of a later Government witness revealed impeachment

evidence the Government did not disclose to either Defendant.

Otoniel twice moved for a mistrial based on the Government's

failure to disclose evidence. The district court denied both

motions. Neither Defendant sought a continuance.

José also attempted to argue that the DEA's use of

Giargiari to arrange controlled buys was a form of entrapment, but

the district court refused José's requests to instruct the jury on

entrapment. During deliberations, the jury sent a note to the

court asking whether it should consider José's entrapment defense.

The district court responded that the issue of entrapment was not

before the jury and instructed the jurors to continue deliberations

based on the instructions given. The jury subsequently returned a

guilty verdict on each charged count.

On appeal, Otoniel asserts 1) the district court abused

its discretion in failing to grant a continuance following the

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Government's delayed disclosure of impeachment evidence; and 2) the

court reporter's delay in providing a complete transcript delayed

his appeal and thereby deprived him of his due process rights.2

José asserts 1) the district court erred in refusing to instruct

the jury on entrapment; and 2) the district court committed clear

error in calculating the quantity of drugs attributable to him for

sentencing.

II.

Otoniel first asserts the district court erred in failing

to, sua sponte, grant a continuance after the Government failed to

disclose impeachment evidence. Assuming Otoniel properly preserved

this claim, this Court reviews for an abuse of discretion the

district court's decision on how to handle a delayed disclosure of

Brady or Giglio material.3 United States v. Villarman-Oviedo, 325

2
In a pro se supplemental brief, Otoniel also raises a number
of additional claims that counsel declined to raise on his behalf.
This Court did not enter an order requiring the Government to
respond and the Government did not respond. Otoniel's pro se
claims are without merit.
3
Otoniel arguably did not properly preserve the claim. "As a
general rule, a defendant who does not request a continuance will
not be heard to complain on appeal that he has suffered prejudice
as a result of late-arriving discovery." United States v.
Sepúlveda, 15 F.3d 1161, 1178 (1st Cir. 1993); see also United
States v. Smith, 292 F.3d 90, 102 (1st Cir. 2002). Otoniel asserts
he preserved his claim by requesting a mistrial. Otoniel's motion
for a mistrial was predicated on what he perceived as the
Government's bad faith in delaying disclosure, not the need for
additional time to incorporate the newly disclosed evidence. The
district court found no impropriety on the part of the Government.
Because Otoniel never asserted the need for time to incorporate the
evidence, it is very doubtful that he properly preserved the

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F.3d 1, 13 (1st Cir. 2003) (citing United States v. Catano, 65 F.3d

219, 227 (1st Cir. 1995)). To establish an abuse of discretion, a

defendant must establish both that the information was material and

that the "defendant was prevented by the delay from using the

disclosed material effectively in preparing and presenting the

defendant's case." Id. The primary inquiry is whether the

Government's failure to provide the information in a timely manner

"caused the defense to change its trial strategy." United States

v. Joslyn, 99 F.3d 1182, 1196 (1st Cir. 1996). Defendant must make

some showing of prejudice beyond mere assertions that he would have

conducted cross-examination differently. Villarman-Oviedo, 325

F.3d at 14 (citing United States v. Devin, 918 F.2d 280, 290 (1st

Cir. 1990)).

A.

During cross examination by José's counsel, Giargiari

revealed that he had asked his father to participate in a

bankruptcy fraud scheme by hiding funds Giargiari received while in

prison. Giargiari also stated that he had discussed the scheme

with a DEA agent three days before trial. José and Otoniel both

objected, arguing the Government should have disclosed that

Giargiari had talked with the Government about the fraud scheme.

Otoniel also objected that he knew nothing about the fraud scheme.

The Government responded that it had learned of the

current claim.

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scheme three days earlier when it received copies of tapes

subpoenaed by José. José subpoenaed the tapes as part of

discovery, received the tapes on the same date the Government

received them, and was aware of the fraud scheme. The Government

acknowledged that it had not provided copies of the tapes to

Otoniel, stating it had assumed José would share the information

with Otoniel as part of their joint defense. The Government also

stated that Giargiari's conversations with a DEA agent did not

reveal any additional impeachment material. Otoniel requested a

mistrial based on the Government's failure to produce the tapes,

arguing that he had not heard the tapes and would not be able to

use the tapes on cross-examination. He did not request a

continuance. The court denied the mistrial motion finding no

impropriety on the part of the Government and stating that, in its

view, Otoniel had not been prejudiced by the Government's action.

The court did order the Government to produce the tapes to Otoniel.

Otoniel was able to review the tapes overnight prior to conducting

his cross-examination.

On appeal, Otoniel provides no evidence of prejudice

resulting from the Government's delayed disclosure of the tapes.

José was aware of Giargiari's fraud scheme prior to trial and fully

incorporated the information into his cross-examination,

questioning Giargiari at length on the scheme and the substance of

his conversations with his father. Otoniel not only benefitted

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from this cross-examination, which put the impeachment evidence

before the jury, but also was able to incorporate the information

into his own cross-examination. Defendants also impeached

Giargiari with numerous other examples of Giargiari's willingness

to break the law. In response to cross-examination, Giargiari

admitted he had an extensive criminal history and that he had

violated the provisions of his cooperation agreement with the

Government by continuing to buy, sell and use narcotics.

Defendants also questioned Giargiari extensively on the benefits he

hoped to receive in exchange for his testimony. Given the

extensive impeachment material available on this witness, it is not

clear the Government's failure to disclose the tapes to Otoniel was

material. Even if material, Otoniel has not offered any evidence

of prejudice.

B.

On the fifth day of trial, the Government called José

Ortiz who testified that he had delivered cocaine for both José and

Otoniel. On cross-examination, he stated he was testifying in

exchange for immunity from prosecution. Otoniel objected that he

had not expected Ortiz to testify because Ortiz had asserted his

Fifth Amendment rights before the grand jury. Both José and

Otoniel asserted they had not received a copy of the Government's

proffer letter to Ortiz. The Government stated it had provided a

copy of the proffer letter to both Defendants and further noted

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that it had included Ortiz on its witness list, thereby giving

notice that Ortiz would testify. Otoniel moved for a mistrial

based on the Government's "continuing" failure to provide

impeachment evidence. The court denied the motion, noting that

there was no prejudice from the delayed disclosure.

Ortiz' testimony on direct examination was limited and

served largely to corroborate other witnesses' testimony. On

cross-examination, Defendants elicited the full details of Ortiz'

cooperation with the Government including the fact that he was not

to be prosecuted for his cocaine distribution or for his continuing

use of marijuana. Otoniel does not offer a single concrete example

of how his defense strategy would have changed given more timely

disclosure of the proffer letter and has not established that he

was prejudiced by the delayed disclosure of the evidence.4

III.

Otoniel also asserts he was denied his due process right

to a timely appeal because of the court reporter's delay in

producing the final portion of the trial transcript. Otoniel

4
Otoniel also asserts that the Court should use its
"supervisory power" to reverse his conviction based on the
Government's delayed disclosure of impeachment evidence. There is
no basis for this Court's use of its supervisory power. The
district court found no evidence the Government acted in bad faith
and Otoniel has not provided any evidence he suffered prejudice as
a result of the Government's act. See United States v. Houlihan,
92 F.3d 1271, 1291 (1st Cir. 1996) (use of supervisory power
appropriate only if "plain prosecutorial misconduct is coupled with
cognizable prejudice to a particular defendant.").

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claims he suffered prejudice from the delay because he was in

prison pending his appeal.

This claim has no merit. "Although extreme delay in the

processing of an appeal may amount to a due process violation, and

delays caused by court reporters are attributable to the government

for purposes of determining whether a defendant has been deprived

of due process, mere delay, in and of itself will not give rise to

a due process infraction." United States v. Luciano-Mosquera, 63

F.3d 1142, 1158 (1st Cir. 1995) (internal citations omitted). The

defendant must show prejudice. Id. "Whether an appellate delay

results in prejudice sufficient to warrant reversing a conviction

rests, most importantly, on a showing that it has impaired the

appeal or the defense in the event of retrial." Id.

In this case, Otoniel has failed to show prejudice.

Although there was a significant delay in preparing the

transcripts, Otoniel does not claim that the transcripts are

incomplete or unreliable. This is not a situation in which the

court reporter has prepared an unusable transcript. Cf. United

States v. Wilson, 16 F.3d 1027, 1031 (9th Cir. 1994) (record had

portion missing or was unintelligible so that record was totally

unreliable). The only prejudice Otoniel asserts is "oppressive

incarceration pending appeal." The fact that Otoniel was

incarcerated during the delay is not a legally cognizable form of

prejudice.

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 IV.

Both Defendants claim the district court erred in

refusing to instruct the jury on entrapment. José filed proposed

jury instructions that included a request for an entrapment

instruction. The district court rejected the instruction after

concluding there was no evidence of entrapment. Despite the

court's ruling, José argued entrapment in his closing statement to

the jury. Upon retiring for deliberations, the jury sent a note to

the court asking whether it should consider José's entrapment

argument. Overruling Defendants' objection, the district court

responded that the issue of entrapment was not before the jury and

instructed the jurors to continue deliberations based on the

instructions given.

We review de novo the district court's decision not to

instruct the jury on entrapment.5 United States v. Joost, 92 F.3d

7, 12 (1st Cir. 1996). A defendant is not entitled to an

entrapment instruction unless the record, when viewed in the light

most favorable to the defendant, furnishes a reasonable basis for

5
Otoniel failed to properly preserve this claim by failing to
request an instruction on entrapment, failing to adopt José's
request, and failing to object to the district court's refusal to
give the instruction. Although Otoniel did object when the
district court refused to give the instruction following the jury's
request, this is insufficient to preserve the issue for appeal.
Entrapment is an affirmative defense, and the burden is on the
defendant to raise and support the defense during trial. See
United States v. Gifford, 17 F.3d 462, 467 (1st Cir. 1994).
Accordingly, the court reviews Otoniel's claim for plain error.

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the defense. United States v. Rodríguez, 858 F.2d 809, 813 (1st

Cir. 1988). To warrant an entrapment instruction, a defendant must

present some evidence from which a reasonable jury could find: (1)

improper government inducement to commit the offense and (2) a lack

of predisposition on the part of defendant to commit such an

offense. United States v. Gendron, 18 F.3d 955, 960 (1st Cir.

1994). The district court concluded Defendants had not provided

evidence of either an improper inducement or a lack of

predisposition.

Improper inducement consists of providing an opportunity

to commit a crime "plus something else," generally excessive

pressure by the Government upon the defendant or taking advantage

of a non-criminal motive. Id. at 961. In determining

"predisposition," the court asks "how the defendant likely would

have reacted to an ordinary opportunity to commit the crime." Id.

at 962. Conclusory, self-serving statements by Defendant that he

would not have committed the crime are not sufficient.

The district court did not err in refusing to instruct

the jury on entrapment. Giargiari and several other witnesses

testified that both Defendants were actively engaged in the sale of

cocaine for several years prior to their arrest. Although José

asserts he was trying to get involved in legal enterprises, the

evidence of narcotics distribution found in his home, as well as

the testimony of his years of dealing narcotics indicates he was

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predisposed to commit the crime. In addition, neither Defendant

provided any evidence of excessive pressure by the Government.

V.

Finally, José asserts the sentencing court committed

clear error in calculating the drug quantity attributable to him.

The Sentencing Guidelines provide: "[W]here there is no drug

seizure amount or the amount seized does not reflect the scale of

the offense, the court shall approximate the quantity of controlled

substance." U.S.S.G. § 2D.1.1, cmmt n.1. The PSR concluded José

was responsible for 1,252 grams of cocaine, representing the

quarter kilogram Giargiari purchased from José on December 23,

1998, and the one kilogram Giargiari purchased from Otoniel and

José on March 30, 1999. The PSR thus assigned a base offense level

of 26 (the offense level representing 500 grams to 2 kilograms of

cocaine). The Government objected to probation's calculation,

arguing that a preponderance of the trial evidence, as well as

Giargiari's debriefing report, indicated that José "reasonably

foresaw" the distribution of at least 4 kilograms of cocaine during

the course of the conspiracy. The Government's calculation

resulted in a base offense level of 30 (the offense level

representing 3.5 to 4.0 kilograms of cocaine).

At the sentencing hearing, the Government offered to call

Giargiari and Vázquez to testify about the quantity of drugs sold

during the conspiracy, and entered the debriefing report into

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evidence. According to the debriefing report, Giargiari stated

that he began buying cocaine from José in 1996 in gram and 2 gram

quantities. By September 1998, he began buying larger amounts,

buying quarter and half kilogram quantities on seven to nine

occasions. The Government noted that Giargiari had not testified

about his prior purchases of cocaine during trial because the

Government's focus had been on the two controlled buys. José

stated that he did not doubt the Government's proffer of proof,

i.e. that Giargiari would testify consistently with the statements

in the report,6 but objected that he had been in Florida for some

of the relevant period and that Giargiari's statements in the

debriefing report were inconsistent with his trial testimony.

The district court sustained the Government's objection,

6
José also asserts counsel at sentencing provided ineffective
assistance by failing to object to the Government's proffer, thus
giving counsel the opportunity to cross-examine Giargiari and
Vázquez. This claim is not properly before us. This Court has
repeatedly emphasized that fact-specific ineffective assistance
claims cannot be raised on direct review of a criminal conviction,
but must first be presented, and ruled upon, by the district court.
United States v. Campbell, 268 F.3d 1, 7 (1st Cir. 2001); see also
Massaro v. United States, 123 S.Ct. 1690, 1694 (2003)(noting that
a motion brought under § 2255 is preferable to direct appeal for
deciding ineffective assistance claims because the record on direct
appeal often will be incomplete or inadequate).
José also asserts the district court's sentence violated
Apprendi. Other than the citation to Apprendi, José does not
expand on this argument. Accordingly, José waived the claim.
United States v. Berrio-Callejas, 219 F.3d 1, 3 (1st Cir. 2000)
(claim presented without argument or case citations deemed waived
on appeal). Regardless, José's sentence was well within the
statutory maximum of twenty years imprisonment. Thus, the district
court's calculation of drug quantity did not violate Apprendi.

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concluding that the Government had proposed an accurate and

conservative calculation of drug quantity and finding ample

evidence in the record to support the amount based on Giargiari's

testimony of the significant increase in the quantities he

purchased from José over the course of their dealings. José

asserts the district court erred in relying partially on

Giargiari's debriefing report in determining the quantity of

cocaine.

We review the district court's factual findings for clear

error. United States v. Caba, 241 F.3d 98, 102 (1st Cir. 2001).

The district court's approximation of drug quantity should be

upheld "as long as it represents a reasoned estimate of quantity."

United States v. Santas Batista, 229 F.3d 16, 21 (1st Cir. 2001).

A reasoned estimate must be based on an adequate indicia of

reliability and support in the record. "Where there is more than

one plausible view of the circumstances, the sentencing court's

choice among supportable alternatives cannot be clearly erroneous."

Id.

The district court based its determination of drug

quantity on the trial testimony describing José's extensive

involvement in the narcotics trade as well as on the Government's

proffer at sentencing. In light of the evidence before it, the

district court did not commit clear error in calculating drug

quantity.

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 VI.

For the reasons stated above, we AFFIRM Defendants'

convictions. We also AFFIRM the sentence imposed on Defendant José

Medina.

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