United States v. Casas

United States Court of Appeals
For the First Circuit

No. 02-1623

UNITED STATES OF AMERICA,

Appellee,

v.

RALPH CASAS,

Defendant, Appellant.

No. 02-1624

UNITED STATES OF AMERICA,

Appellee,

v.

FELICIANO NIEVES,

Defendant, Appellant.

Nos. 02-1785
02-1674

UNITED STATES OF AMERICA,

Appellee,

v.

WINSTON CUNNINGHAM,

Defendant, Appellant.
No. 02-1794

UNITED STATES OF AMERICA,

Appellee,

v.

RAFAEL SEGUI-RODRIGUEZ,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo-Cerezo, U.S. District Judge]

Before

Boudin, Chief Judge,
Lynch, Circuit Judge,and
Howard, Circuit Judge.

Elfrick Méndez-Morales for appellant Casas.
Raymond L. Sanchez-Maceira for appellant Nieves.
Marcia J. Silvers for appellant Cunningham.
Joseph S. Berman for appellant Segui-Rodriguez.
Nelson Pérez-Sosa, Assistant United States Attorney, with whom
Thomas F. Klumper, Assistant United States Attorney, H.S. Garcia,
United States Attorney, and Sonia I. Torres-Pabón, Assistant United
States Attorney, Chief, Criminal Division, were on brief for
appellee.

January 20, 2004
 LYNCH, Circuit Judge. Four defendants, Ralph Casas,

Feliciano Nieves, Winston Cunningham, and Raphael Segui-Rodriguez,

were convicted by a jury of participating in a drug organization

that smuggled massive amounts of cocaine and heroin from Puerto

Rico and several foreign countries into Miami and New York from

September 1992 to March 1995.

Ralph Casas and Winston Cunningham were convicted of

using their positions as baggage handlers for American Airlines to

smuggle the drugs past customs and security personnel at the Miami

International Airport. Raphael Segui-Rodriguez and Feliciano

Nieves were convicted of participating in all facets of the

organization's operations in Puerto Rico, the point from which most

of the drug shipments were prepared.

In this appeal, the four defendants raise a number of

serious concerns about their trial. We vacate the conviction of

defendant Cunningham because the government improperly used as a

lead witness a government agent who testified that, based on his

investigation, the defendants were members of the charged drug

conspiracy. The error was not harmless as to Cunningham, but was

harmless as to the other defendants.

In the case of defendant Segui-Rodriguez, we also reject

the government's suggestion that we adopt a rule that, for speedy

trial purposes, the clock does not start until the indictment is

unsealed. But we find that the delay of over five years from

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indictment to trial did not violate Segui-Rodriguez's speedy trial

rights where the government did not know his location during that

period and no prejudice has been shown. We also note, but do not

resolve, an issue about the interplay between the prejudice prong

of the Brady disclosure requirements and the government's

obligations under the Jencks Act, 18 U.S.C. § 3500, to disclose

evidence only at certain times. Finally, we again affirm the

imposition of a sentence by a judge other than the judge who heard

the trial.

I.

The facts are recounted as a reasonable jury could have

found them, in the light most favorable to the verdict.

A sophisticated drug organization, based principally in

Puerto Rico, transported large quantities of cocaine and heroin

into the United States between September 1992 and March 1995. The

leader of the organization, Israel Perez-Delgado, coordinated the

work of approximately sixty subordinates. Working together, the

members of the organization transported drugs from Puerto Rico, the

Dominican Republic, and Panama into Miami International Airport for

ultimate distribution in New York. In total, the organization

smuggled approximately 9,000 kilograms of cocaine and approximately

1,400 grams of heroin into the continental United States.

The organization used various methods to smuggle the

drugs past customs and security personnel. In one scheme, women

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"mules" traveled on commercial flights from the Dominican Republic

to Miami with professionally altered garment bags containing

cocaine. On later flights the mules carried the cocaine directly

on their bodies. The organization also mailed cocaine to Miami

using overnight mail carriers. The drugs were stored in toolboxes,

and packaged with Ben Gay and Vick's Vaporub to cloak their smell.

Another method used by the organization involved hiding heroin in

the carved-out soles of sneakers. And a fourth scheme used

American Airlines flights to transport suitcases filled with

cocaine from Puerto Rico and the Dominican Republic to Miami.

Defendant Ralph Casas was in charge of the organization's

operations in Miami, the entry point for most of the drugs into the

continental United States. Casas was a baggage handler for

American Airlines at Miami International Airport and recruited

other employees to help divert drug shipments past normal security

and customs checkpoints. For instance, Bryan Francis, a

cooperating government witness and former American Airlines

employee, testified that he and Casas met at the Miami airport,

where Casas gave him shipments of cocaine that had been mailed to

Miami from Puerto Rico and had not yet been screened by security

personnel. Francis then bypassed security by using the employee's

entrance to the bag room area, traveled up to the terminal where

the passengers that had passed through security were waiting to

board flights, and regrouped with Casas. At that point, Casas

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directed Francis to a third individual, who took possession of the

cocaine and boarded a flight headed for New York. Casas paid

Francis $2500 per importation; they used this method three times.

Casas also recruited "Rasta," another employee of

American Airlines, to help smuggle drugs into the United States.

At trial, Francis and two other government witnesses, Carlos Perez-

Delgado and Thomas Martinez, identified defendant Cunningham as

Rasta. Cunningham testified, denied any involvement, but admitted

that he was called "Rasta" by some American Airlines employees.

Rasta provided assistance when one of the organization's

mules, most frequently Elizabeth Morales, a cooperating witness,

traveled on a flight from the Dominican Republic to Mexico that

stopped off in Miami (Morales did not identify Cunningham as

Rasta). In the Dominican Republic, the mule would check a suitcase

containing cocaine. Because its ultimate destination was

international, the suitcase did not go through customs when it

arrived in Miami, but was placed in a secluded area known as the

ITI room. Rasta, who had access to this area, then placed the

suitcase in an area where Francis picked it up, moved it to a

storage room for domestic bags that had already gone through

security, and put a new tag on it indicating that its destination

was New York. This occurred about four times, until Casas decided

to rely exclusively on another member of the organization (not on

trial in this case) to perform Rasta's function.

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 Casas also stored drugs in his house in Miami, assisted

in packaging cocaine, and facilitated the delivery of drugs to New

York or directly to Israel Perez-Delgado when he was in Miami. He

assisted in purchasing weapons and bullet-proof vests to be used in

the course of searching for several people suspected of stealing a

shipment of drugs from the organization. Thomas Martinez testified

that, at a meeting held in New York after Israel Perez-Delgado was

arrested, Casas attempted to take control of the organization.

Martinez also testified that Cunningham attended that meeting.

Defendant Rafael Segui-Rodriguez worked directly for

Israel Perez-Delgado in Puerto Rico and assisted him in all areas

of the operation. He served as a bodyguard for Israel Perez-

Delgado and Ray Cabassa, another high-ranking member of the

organization. Additionally, he provided armed security for the

drugs while they were in storage awaiting shipping and

distribution. Segui-Rodriguez also transported firearms and

surveillance equipment from Miami to Puerto Rico and New York for

the organization.

Several witnesses specifically identified Segui-Rodriguez

as participating in drug transactions on behalf of the

organization. Thomas Martinez, for instance, testified that Segui-

Rodriguez helped deliver cocaine to Israel Perez-Delgado's New York

City apartment by hiding it inside an audio speaker in the trunk of

the car he was driving. Three guns were also in that car.

-7-
 DEA Agent Stoothoff also testified that he saw Segui-

Rodriguez, along with several others, drop off four suitcases of

cocaine at the Puerto Rico airport on March 21, 1994. Agent

Stoothoff testified that Segui-Rodriguez was sitting in the driver

seat of a black Pontiac TransAm in front of the airport and that an

Isuzu Trooper was parked directly behind the TransAm. As Agent

Stoothoff and a fellow officer walked toward the two vehicles, they

saw several people inside the cars and observed Israel Perez-

Delgado unloading suitcases from the Isuzu Trooper. Once the

officers got even closer, the people suddenly fled. Three were

caught: Jose Velez-Roman, Hector Martinez-Medina and Jose

Charluisant-Pagan were arrested, but Rafael Segui-Rodriguez escaped

after he sped off in the TransAm. Another DEA agent, Miguel

Escalera, also recounted this incident at the airport. The

suitcases were each filled with about twenty kilograms of cocaine

and had been labeled with agricultural stickers. The Isuzu also

contained an American Airlines boarding pass with the name "Rafael

Rodriguez" on it.

After being confronted with this evidence, Martinez-

Medina offered to cooperate and led officials to a house in Villa

Fontana that he claimed contained cocaine. Stoothoff and his

fellow officers secured a search warrant and found in the house

drug paraphernalia, stickers from the Department of Agriculture,

packaging material that matched materials found in the seized

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suitcases, and a Casio business organizer. The entries in the

business organizer contained the names and numbers of organization

members, including defendants Casas, Segui-Rodriguez, and Nieves.

It did not contain any information for Cunningham.

Defendant Feliciano Nieves also worked directly for

Israel Perez-Delgado, who was his brother. Nieves picked up the

suitcases of cocaine that arrived in New York from Miami and

brought back to Puerto Rico the money obtained from selling the

drugs in New York. Additionally, he provided security for the

drugs before they were shipped.

On several occasions, Feliciano Nieves helped smuggle

drugs past customs officials. For instance, he traveled to Panama

with several mules and packaged heroin inside the soles of the

sneakers that they brought back with them to Miami. He also

assisted with packaging cocaine in both the toolboxes and the

suitcases. At least once, Nieves himself served as a mule and

brought cocaine from Puerto Rico to New York.

II.

The four appellants in this case, Ralph Casas, Feliciano

Nieves, Winston Cunningham, and Rafael Segui-Rodriguez, were

originally indicted on December 13, 1995, along with fifty-six co-

defendants. The grand jury later returned a six-count superseding

indictment on August 8, 1996, against the same sixty defendants.

Count I charged all sixty defendants with conspiring between

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September 1992 and March 1995 to possess with intent to distribute

approximately 1,400 grams of heroin and 9,445 kilograms of cocaine

in violation of 21 U.S.C. § 846. Count II charged seven of the

defendants, including appellant Rafael Segui-Rodriguez, with aiding

and abetting each other in knowingly possessing with intent to

distribute approximately eighty-one kilograms of cocaine in

violation of 21 U.S.C. § 841. None of the remaining four counts

applied to the appellants here.

The district court severed the trial of the four

appellants from that of the other fifty-six indicted defendants.

The first group of indicted defendants to be tried were convicted

after a nine-month trial starting in May of 1999. The four

appellants were tried together before a jury from November 6 to

November 28, 2001; the jury found each guilty of the first count in

the superseding indictment and found Rafael Segui-Rodriguez guilty

of the second count.

The appellants were sentenced in April of 2002 by a

different judge. Casas received a life sentence. Both Nieves and

Segui-Rodriguez were sentenced to 360 months imprisonment, with a

supervised release period of ten years for Nieves and eight years

for Segui-Rodriguez. Cunningham was sentenced to serve 325 months

in prison and to a supervised release period of five years.

Additionally, Cunningham and Casas were each fined $50, Nieves was

fined $150, and Segui-Rodriguez was fined $100.

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 III.

A. Pre-trial claims

1. Denial of Motion for Severance

(Casas)

Casas appeals the denial of his motion to sever his trial

from that of his three co-defendants. Casas argues that he was

prejudiced by being tried with his three co-defendants because much

of the evidence presented at trial would not have been admissible

against him in a separate trial. In particular, Casas points to

the testimony of Elizabeth Morales regarding her trips to Panama

and to Agents Stoothoff's and Escalera's testimony about the

incident at the San Juan airport on March 21, 1994.

Review of the denial of a motion to sever is for abuse of

discretion. The key question is whether the "allegedly improper

joinder likely deprived [the defendant] of a fair trial." United

States v. Burgos, 254 F.3d 8, 13 (1st Cir. 2001) (internal

quotation marks and citation omitted). Severance in cases where

the defendants were indicted together creates the possibility of

inconsistent verdicts and taxes judicial resources. United States

v. Houle, 237 F.3d 71, 76 (1st Cir. 2001). As such, a defendant

wishing to sever his trial from commonly indicted co-defendants

must make a particularly compelling showing of prejudice. See

Zafiro v. United States, 506 U.S. 534, 539 (1993).

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 One classic way of attempting to show that a trial was

not fair is to argue that testimony otherwise inadmissible against

a defendant in a separate trial has been admitted in the joint

trial. Casas presents three instances of such testimony: Morales's

testimony about smuggling heroin from Panama into the United States

and Agent Stoothoff's and Agent Escalera's testimony about the

incident at the Puerto Rico Airport. At least some of this

testimony, however, would likely have been admissible against Casas

in a separate trial. See United States v. Brandon, 17 F.3d 409,

440 (1st Cir. 1994) (defendants cannot seek severance based on

spillover evidence that would have been admissible against them in

separate trial). For instance, even though Casas was not directly

involved in smuggling heroin from Panama, Morales's description of

this process would likely have been admissible against Casas to

show the scope of the conspiracy in which he knowingly

participated. See United States v. LiCausi, 167 F.3d 36, 45-46

(1st Cir. 1999). Similarly, some of Agent Stoothoff's and Agent

Escalera's testimony would probably have been admissible against

Casas in order to demonstrate the sequence of events through which

the authorities learned about his role in the organization.

Regardless, it is well understood that "a measure of evidentiary

spillover is a foreseeable concomitant of virtually every joint

trial, yet seldom indicates undue prejudice." United States v.

DeLuca, 137 F.3d 24, 36 (1st Cir. 1998).

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 2. Sixth Amendment Right to Speedy Trial

(Segui-Rodriguez)

Segui-Rodriguez argues that his Sixth Amendment right to

a speedy trial and his rights under Fed. R. Crim. P. 48(b) were

violated by the delay between when his original indictment was

returned, December 13, 1995, and when he was arraigned, May 17,

2001. Such claims are analyzed by balancing four considerations:

the length of the delay, the reason for the delay, the defendant's

assertion of his right, and the prejudice to the defendant. Barker

v. Wingo, 407 U.S. 514, 530 (1972); United States v. Trueber, 238

F.3d 79, 87 (1st Cir. 2001). The length of the delay between

indictment and arraignment here was five-and-a-half years.

The government urges that we adopt a bright-line rule

that the relevant time period for purposes of the right to a speedy

trial begins to run only once the indictment is unsealed, which was

about seven months before trial here. The government cites no case

supporting its argument.1 We reject the government's position.

The Supreme Court in Barker has mandated a balancing test, and the

government's bright line rule is inconsistent with Barker.

It is easy to imagine a situation where, by the time an

indictment is unsealed, the defendant suffers prejudice --

1
Perhaps the government has confused the speedy trial claim
with the rule that a properly sealed indictment is timely even if
it is made public after the end of the statutory limitations
period. Wright, King & Klein, 3B Federal Practice & Procedure
Criminal § 814 (3d ed. 2003).

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important documents may be destroyed or key witnesses may die as a

result of a delay caused by sealing the indictment. This is true

whether the government's reasons for sealing the indictment are

good or bad, see United States v. Thompson, 287 F.3d 1244, 1252-56

(10th Cir. 2002). The reasons for sealing may certainly be

relevant to the analysis.

We see no reason why a defendant should not be able to

make a speedy trial claim when the government has delayed the trial

by sealing the indictment, regardless of the government's reasons.

Instead, we adhere to the Barker rule that these facts must be

considered under the four-part inquiry. Prosecutors bear the

primary burden of bringing a case to trial; they may not hide

behind the sealing of an indictment to avoid examination of the

delay that they cause.

There are two reasons why Segui-Rodriguez's right to a

speedy trial was not violated: the government had a legitimate

reason for the delay and there was no prejudice. The government has

some obligation of diligence in efforts to find the accused.

Doggett, 505 U.S. at 652-53. The trial court determined that the

prosecution was unable to locate Segui-Rodriguez until March of

2001, when it learned that he was imprisoned in New York State.

Once it discovered his whereabouts, the prosecution quickly acted

to have him transferred to Puerto Rico so the criminal proceedings

against him could commence. Segui-Rodriguez has not shown any

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error in the trial court's conclusion that the government did not

intentionally delay and genuinely did not know where he was. He

has also not shown any lack of diligence on the part of the

government in attempting to locate him.

Segui-Rodriguez complains, without providing any

specifics, that some of the witnesses may have had unclear

memories. This consideration, though, "is a two-edged sword . . .

[because] [i]t is the Government that bears the burden of proving

its case beyond a reasonable doubt." United States v. Loud Hawk,

474 U.S. 302, 315 (1986). Segui-Rodriguez makes no separate

argument that the seven months between arrest and trial was itself

a speedy trial violation.

B. Trial Claims

1. Evidentiary Claims

Review of rulings on preserved evidentiary objections is

for abuse of discretion. United States v. Santana, 342 F.3d 60, 68

(1st Cir. 2003). Review of evidentiary rulings where no objection

was made is for plain error. Under the plain error test, the

reviewing court must find (1) error, (2) that is plain, (3) and

affects substantial rights, (4) and then should only act if the

error seriously affects the fairness, integrity, or public

reputation of judicial proceedings. United States v. Olano, 507

U.S. 725, 731-36 (1993).

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 a. "Triggerman" evidence

(Nieves)

Nieves argues that the testimony of Carlos Perez-Delgado

that Nieves was a "triggerman" in the organization was

impermissible character evidence and unfairly prejudicial because

it suggested without foundation that Nieves carried a weapon. At

trial, counsel for Nieves objected to Perez-Delgado's testimony and

the district court sustained that objection. Nieves argues that

the trial court should also have sua sponte told the jury to

disregard this testimony, though he did not request such an

instruction at trial.

Generally, a district court has no obligation to caution

a jury to disregard every improper statement made by a witness when

it has sustained an objection to that statement. See United States

v. De La Cruz, 902 F.2d 121, 124 (1st Cir. 1990) (the general rule

is that a trial court's failure sua sponte to give a cautionary

instruction is not reversible error). There is nothing

extraordinary here to warrant an exception to that rule.

b. Brady Claims

A Brady violation has three components: "[t]he evidence

at issue must be favorable to the accused, either because it is

exculpatory, or because it is impeaching; that evidence must have

been suppressed by the State, either willfully or inadvertently;

and prejudice must have ensued." United States v. Joselyn, 206

-16-
F.3d 144, 153 (1st Cir. 2000) (quoting Strickler v. Greene, 527

U.S. 263, 280 (1999)). In determining prejudice, the test is not

whether the verdict would have been different, but whether there is

a reasonable probability that the favorable evidence would put the

whole case in such a different light as to undermine confidence in

the verdict. Id. at 152 (quoting Kyles v. Whitley, 514 U.S. 419,

434 (1995)).

i. Casas

Casas argues that the prosecution failed to turn over

exculpatory evidence that he requested in pre-trial motions,

thereby violating Brady v. Maryland, 373 U.S. 83 (1963). This

evidence includes the plea and cooperation agreements of two

government witnesses, Thomas Martinez and Elizabeth Morales, the

results of a positive drug test taken by Morales, and the

transcript of government witness Wilson Rodriguez's testimony in an

earlier trial of the four defendants' alleged co-conspirators.

Casas argues that the government's failure to disclose this

evidence in a timely fashion hindered his ability to impeach these

government witnesses. See Giglio v. United States, 405 U.S. 150,

153-55 (1972). Each of Casas's claims raises different concerns.

The plea agreements of the two government witnesses,

Martinez and Morales, were belatedly given to the defendants after

the second day of trial. In cases of delayed disclosure, "the

test is whether defendant's counsel was prevented by the delay from

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using the disclosed material effectively in preparing and

presenting the defendant's case." United States v.

Villarman-Oviedo, 325 F.3d 1, 13 (1st Cir. 2003) (internal

quotations omitted); see United States v. Devin, 918 F.2d 280, 290

(1st Cir. 1990) (the defendant must show "a plausible strategic

option which the delay foreclosed").

The court acted promptly and appropriately to offset any

potential harm to Casas. When the defense first objected during

trial that it had not received the agreements, the court ordered

the prosecution to turn over all such agreements that day, before

the defense was to cross-examine any of the government's witnesses

who had signed such an agreement. The government also agreed not

to elicit any testimony from Morales -- the witness on the stand

when the defense lodged its objection -- about her plea agreement

(beyond the fact that she had signed one) until the following day,

at which point the defense would have had an opportunity to review

the agreements.

The defense cross-examined Morales effectively regarding

the plea agreement the next day -- Casas's counsel spent the bulk

of his cross-examination questioning Morales about the favorable

treatment she received from the government in exchange for her

cooperation in the case. The defense had an even greater

opportunity to prepare for cross-examining Martinez about his plea

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agreement, as he was not called to be a witness until November 12,

four days after the government turned over his plea agreement.

Casas next argues that the government did not reveal that

Morales had tested positive for drug use after she started

cooperating with the government in this case. While being cross-

examined, Morales explained that she had been administered weekly

drug tests as part of her cooperation agreement with the government

and that she had failed one such test in 1996. Defense counsel

then objected to not receiving this information in discovery. As

the district court pointed out and defense counsel acknowledged,

the admission that Morales had failed the test meant that there was

no prejudice. See United States v. Jadusingh, 12 F.3d 1162, 1166

(1st Cir. 1994) (no prejudice when a government witness's past

substance abuse was fully disclosed to the jury in his testimony).

Casas also argues that the government did not produce a

transcript of government witness Wilson Rodriguez-Pelaez's

testimony in the 1999 trial of the defendants' alleged co-

conspirators. Casas first requested the transcript the day after

Rodriguez-Pelaez began his testimony. In response, the prosecution

informed the court that, to the best of its recollection, the

earlier testimony had not been transcribed. When Casas complained

that he was at a disadvantage, the court responded that "you can't

ask in the midst of a trial for a transcript that does not exist."

It is not clear from the record whether the prosecution was correct

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that Rodriguez-Pelaez's testimony from the earlier trial had not

been transcribed. Whether or not it was transcribed and whether

the government should have produced it or Casas should have ordered

a transcript himself need not be resolved. Casas still has not

shown what inconsistencies, if any, exist between Rodriguez-

Pelaez's testimony in this trial and his earlier testimony, and so

no harm is evident.

ii. Cunningham

Cunningham separately argues that the prosecution

violated its Brady obligations on two occasions. The first alleged

Brady violation arose with the testimony of cooperating witness

Bryan Francis. During cross-examination, Cunningham's counsel

asked Francis if he had committed perjury on his application for

United States citizenship; the application contains a question

asking whether the applicant has ever trafficked in narcotics.

This was the first time that Francis's citizenship application had

come up at trial and Cunningham had not requested the actual

citizenship application during discovery. Francis responded that

his answer to the question on the citizenship application -- which

denied any involvement in narcotics trafficking -- was truthful at

the time made. Francis said he filled out the application in 1993,

before he first started trafficking in narcotics. The day after

Francis finished testifying, Cunningham's attorney for the first

time requested a copy of Francis's citizenship application from the

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government. The government stated that it would be "virtually

impossible to produce [the record] without [] prior notice that

[it] would be required," but then did produce the document within

six days after Cunningham had finished presenting his defense. The

citizenship application showed that it was filed in 1995,

indicating that Francis had given a false answer on the application

when he denied trafficking drugs. Despite this new evidence,

Cunningham made a strategic choice not to recall Francis to the

stand.

There was no violation because the prosecution had no

obligation to produce the document under Brady. The obligation

under Brady to disclose evidence that the defense has not requested

applies only when the prosecution or others acting on its behalf

knew or should have known of its materiality. See Strickler, 527

U.S. at 280-81; Josleyn, 206 F.3d at 153 (a Brady violation

requires that the government either literally suppressed the

evidence or should have known of its existence). Neither of these

conditions is satisfied here. The citizenship application was not

in the prosecution's files; the prosecution apparently had to get

it from another agency not under its supervision in this case. See

United States v. Avellino, 136 F.3d 249, 255 (2d Cir. 1998)

(although individual prosecutors are presumed to have knowledge of

information gathered by members of their office, they are not

presumed to possess the knowledge of persons employed by a wholly

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separate government branch). The prosecution did not learn of the

perjury until it examined the document for the first time -- well

after the start of the trial.

The second Brady violation alleged by Cunningham involves

the government's failure to turn over the testimony of witness

Carlos Perez-Delgado from the 1999 trial. At the trial involved in

this appeal, Carlos Perez-Delgado identified Cunningham as Rasta.

Cunningham's counsel then asked the prosecution for any

identifications of someone other than Cunningham as Rasta and the

government represented, wrongly, that it had no such material.

Cunningham's counsel was subsequently informed by counsel for

another defendant that Perez-Delgado had testified at the earlier

trial that Rasta was named "Bryan." Bryan Francis was admittedly

involved in the organization, and, like Cunningham, worked for

American Airlines in Miami and was black. Cunningham moved to

dismiss for prosecutorial misconduct or to strike the in-court

identification. The trial court denied the motion after the

prosecutor asserted that he simply "ha[d] no recollection" of the

inconsistent identification.

We will assume that the government should have disclosed

this exculpatory information under Brady, even though the earlier

transcript may have been available to defense counsel (there is no

record of whether this was the case). We also assume that there

was a witness statement from Perez-Delgado to the government,

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covered by the Jencks Act, in which Perez-Delgado said that Rasta

was someone named Bryan. We assume further, in the defendant's

favor, that prejudice can occur under Brady even when the statement

is disclosed immediately after the witness's direct examination and

before cross-examination, in accordance with the Jencks Act.2 18

U.S.C. § 3500(a). Cunningham still cannot demonstrate a Brady

violation because he was not prejudiced by the government's belated

disclosure. Certainly Cunningham's cross-examination of the

witness did not suffer from the belated disclosure: Cunningham's

counsel cross-examined Perez-Delgado on his prior identification

and got him to admit that he had previously testified under oath

that Rasta was actually government witness Bryan Francis.

The question then is whether some other form of prejudice

resulted from the government's failure to disclose earlier.

Cunningham says that the late disclosure prejudiced his ability to

persuade the court to stop Perez-Delgado from identifying him in

2
There is an argument that Cunningham suffered no prejudice
because, under the Jencks Act, he was entitled to the previous
statement only after the direct examination of Carlos Perez-
Delgado, which is when he received it. See 18 U.S.C. § 3500(a).
This argument depends on the relationship between the Jencks Act
and Brady. Other courts have noted this potential conflict between
Brady and the Jencks Act, and have come to conflicting conclusions
on the proper interplay of the two doctrines. Compare United
States v. Bencs, 28 F.3d 555, 561 (6th Cir. 1994), with United
States v. Snell, 899 F. Supp. 17, 21 (D. Mass. 1995). We do not
enter this debate, as the issue can be resolved on alternative
grounds.

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court. Understanding this issue requires a description of that in-

court identification.

c. In-court Identification Procedure

Cunningham argues independently that the government

violated a pre-trial order by eliciting Perez-Delgado's in-court

identification of him. We deal with that claim and the claim of

Brady prejudice together. The government only provided notice that

Perez-Delgado would be identifying Cunningham after Perez-Delgado

had already given some of his testimony and had therefore seen

Cunningham sitting with the three other defendants. This, argues

Cunningham, violated a pre-trial order requiring the government to

provide advance notice of any in-court identifications so that the

defendant could sit in the courtroom audience.

The district court correctly determined that the

government's belated notice that Perez-Delgado was going to

identify Cunningham as Rasta did not violate the pre-trial order.

Cunningham had previously chosen not to sit in a different part of

the courtroom when Thomas Martinez identified him as Rasta, and

both the court and the government reasonably interpreted this as an

indication that Cunningham also did not want to move to the back of

the courtroom for future witness identifications. Outside of the

pre-trial order, Cunningham had no general right to sit in the

courtroom audience during the in-court identification; the district

court enjoys wide discretion in establishing procedures for such

-24-
identifications. See 2 LaFave, Criminal Procedure § 7.4(g) (2d ed.

1999).

We turn back to the issue of whether, had Cunningham

known of Perez-Delgado's earlier testimony identifying Rasta as

Bryan, Cunningham could have persuaded the trial court not to

permit the in-court identification. There is no reason to think

so. In fact, this very argument was made to the trial court later

and the court was unmoved. As a result, the lateness in obtaining

the information did not meet the Kyles prejudice test.

d. Error in Admission of DEA Agent Stoothoff's Conclusory
Testimony About "the Organization"

(Segui-Rodriguez, Cunningham, and Casas)

Defendants Cunningham, Casas, and Segui-Rodriguez argue

that there was reversible error in the admission of a portion of

the testimony of Agent Stoothoff. The objections were preserved.

The government's misguided use of Agent Stoothoff to map out its

case and to describe the role played by individual defendants

raises a number of serious questions.

Agent Stoothoff, the first witness called by the

government, began with admissible testimony based on his personal

knowledge of observed events. He testified about his involvement

in the incident at the airport on March 21, 1994, and the search of

the house at Villa Fontana later that day.

Stoothoff was then shown a document containing names and

telephone numbers extracted from the Casio business organizer

-25-
seized at the house in Villa Fontana. When asked by the government

what his investigation revealed as to these entries in the business

organizer, Agent Stoothoff testified that they were names and

numbers of members of the "organization," which he defined as the

"drug trafficking group that was associated with Israel Perez-

Delgado." He then explained that the entries for "Bert", "Felix"

and "Rafael" referred to defendants Ralph Casas, Feliciano Nieves,

and Rafael Segui-Rodriguez, respectively. Agent Stoothoff did not

testify about any entry for Cunningham.

Agent Stoothoff proceeded to give a general description

of his investigation after the arrests of Jose Velez-Roman, Hector

Martinez-Medina and Jose Charluisant-Pagan, the three suspects at

the airport on March 21, 1994. He testified that the DEA in Puerto

Rico communicated with its counterpart in New York and with the New

York police department and determined that several people whose

names had come up in the Puerto Rico investigation were also wanted

for questioning in New York. Officials in Puerto Rico and New

York, he said, began communicating with each other on a regular

basis about the case. Stoothoff also testified that the DEA in

Puerto Rico, with the aid of several wiretaps in New York, learned

of the scope of the organization and its basic methods for

smuggling drugs into the country for distribution in New York.

The prosecutor then asked Agent Stoothoff to name

individuals whom he had determined were members of the organization

-26-
in Puerto Rico. Stoothoff began listing a number of people,

including Feliciano Nieves and Rafael Segui-Rodriguez.

Defense counsel for Cunningham objected on grounds of

hearsay and that the witness was testifying as to the ultimate

issue in the case. The hearsay objection was that Stoothoff was

not testifying about his own investigation but rather about what he

was told in post-arrest statements from individuals who, because

they had been arrested, were no longer part of the conspiracy. The

judge denied both objections and said that defense counsel could

inquire whether Stoothoff was testifying on an ultimate issue in

the case during cross-examination.

Later, Stoothoff was asked, "what did your investigation

reveal as to members of the organization operating out of Miami,

Florida?" Again, there were objections by defense counsels for

Cunningham and Segui-Rodriguez, which the court again overruled.

Agent Stoothoff then answered the question, saying "[t]here were

Ralph Casas, . . . there were Bryan Francis, Winston -- well, at

the time we knew the name of Rasta, we later identified that Rasta

as being Winston Cunningham." Stoothoff also described the role

that various individuals played in the organization and said that

his "investigation reveal[ed]" that the organization moved more

than 5,000 kilograms of cocaine and 1,400 grams of heroin between

September 1992 and March 1995.

-27-
 Stoothoff's conclusory testimony about the conspiracy and

its members, it appears, was at least partially based on

information provided by Israel Perez-Delgado, who cooperated after

he was arrested. But Israel Perez-Delgado did not testify.

Cunningham also objected on this basis to Stoothoff's testimony,

and the court again rejected the objection.

In sum, Agent Stoothoff testified that there was a drug

trafficking organization associated with Israel Perez-Delgado, that

Cunningham was Rasta, that all four of the defendants were members

of this organization, and that the organization handled specific

massive quantities of cocaine and heroin. In doing so, he went

well beyond his personal knowledge based on the airport incident

and the search. Further, he did not differentiate the testimony

that was based on personal knowledge from other sources of

information, often hearsay. Nor did he present testimony about the

characteristics of large-scale drug organizations in general. See,

e.g., United States v. Alatorre, 222 F.3d 1098, 1100 (9th Cir.

2000). Instead, using the word "organization" rather than

"conspiracy," he essentially testified that each of the defendants

was guilty of the conspiracy charged. At oral argument,3

3
Although the government's brief includes in the Table of
Contents a heading purporting to argue that Agent Stoothoff's
testimony was permissible, the contents of the brief do not include
any such argument. The brief does briefly address whether the
testimony was hearsay in another section. This omission in the
government's brief was brought up at oral argument and the
government has made no attempt to correct the error. We are at a

-28-
government counsel wrongly characterized the agent's testimony as

summary evidence.

Agent Stoothoff's testimony was fatally flawed for very

basic reasons. It was not a summary of testimony admitted in

evidence. Further, there is no indication that Agent Stoothoff's

conclusions that the defendants were members of the drug

organization were even based on testimony that was eventually

presented at trial and could be evaluated by the jury. Agent

Stoothoff merely said that his conclusions were based on the

"investigation." In fact, Agent Stoothoff's testimony was likely,

at least in part, based on the statements of a witness that the

government chose not to call at trial; the record shows that the

purported leader of the conspiracy, Israel Perez-Delgado,

cooperated with the government and provided information. But

Israel Perez-Delgado did not testify. The defendants had no chance

to cross-examine him, did not know what he had said to the

government, and had no basis to challenge a conclusion drawn from

what he had said. If evidence does not exist in the record, the

testimony can hardly be a summation of it. See United States v.

Kayode, 254 F.3d 204, 211-12 (D.C. Cir. 2001) (error to permit

government agent to give summary testimony where no foundation was

ever laid). And, evidence which is based on inadmissible hearsay

loss to understand the government's indifference to a key issue in
the case.

-29-
is itself inadmissible. See Martin v. Funtime, Inc., 963 F.2d 110,

116 (6th Cir. 1992); Hackett v. Housing Auth., 750 F.2d 1308, 1312

(5th Cir. 1985).

In fact, Stoothoff was not even a summary witness

attempting to summarize documents, Fed. R. Evid. 1006, or testimony

(to the very limited extent that is ever permissible) already

before the jury. He was presented as a preliminary overview

witness. At least one other court, the Fifth Circuit, has

condemned such "overview" testimony by a government agent presented

at the outset of a trial. United States v. Griffin, 324 F.3d 330,

349 (5th Cir. 2003). The prosecution in that case called as its

second witness an FBI agent, who testified broadly about the

defendant's role in a tax-fraud conspiracy. The testimony was

based on the accounts of several witnesses that the government

presented later in the trial. In holding it was error to admit

this preliminary overview testimony, the Fifth Circuit said that

"[w]e unequivocally condemn this practice as a tool used by the

government to paint a picture of guilt before the evidence has been

introduced." Id.

We agree with the Fifth Circuit that this initial witness

"overview testimony" is inherently problematic: such testimony

raises the very real specter that the jury verdict could be

influenced by statements of fact or credibility assessments in the

overview but not in evidence. See id. There is also the

-30-
possibility that later testimony might be different than what the

overview witness assumed; objections could be sustained or the

witness could change his or her story. Overview testimony by

government agents is especially problematic because juries may

place greater weight on evidence perceived to have the imprimatur

of the government. Cf. U.S. v. Perez-Ruiz, No. 02-1466, 2003 U.S.

App. LEXIS 25889, at *23 (1st Cir. Dec. 19, 2003) ("It follows

inexorably" from the prohibition on vouching "that the prosecution

cannot prop up a dubious witness by having a government agent place

the stature of his office behind the witness."). The fact that we

and the Fifth Circuit have now had to address the government's use

of such preliminary overview government agent witnesses is a

troubling development. The government should not knowingly

introduce inadmissible evidence; it risks losing convictions

obtained by doing so.

It is true that expert witnesses have leeway other

witnesses do not. In certain circumstances, expert witnesses are

permitted to recount earlier evidence presented to the jury in the

course of rendering an expert opinion.4 The Federal Rules of

4
For instance, this court permitted an expert witness to
summarize the testimony presented at trial in the course of
calculating the income tax owed by a defendant facing tax evasion
and drug charges. United States v. Sutherland, 929 F.2d 765, 779-
80 (1st Cir. 1991). That expert testified, after the other
evidence had been admitted, that one possible source of the
defendant's income was drug activities. It was part of the
government's case to show likely sources of income. The testimony
was explicitly based on testimony and evidence that the jury had

-31-
Evidence also allow experts, in certain circumstances, to rely on

underlying facts or data which are not themselves admissible, see

Fed. R. Evid. 703.

Agent Stoothoff's testimony is clearly not justified as

expert summary testimony. Most obviously, Stoothoff was never

introduced or qualified as an expert and even now the government

does not claim he was an expert. More fundamentally, though, Agent

Stoothoff's testimony that particular persons were members of the

conspiracy was not an appropriate subject for expert testimony. It

was not in any way linked to the "specialized knowledge" that Rule

702 requires. See United States v. Johnson, 54 F.3d 1150, 1157-58

(4th Cir. 1995) ("Rule [703] does not afford the expert unlimited

license to testify or present a chart in a manner that simply

summarizes the testimony of others without first relating that

testimony to some 'specialized knowledge' on the expert's part as

required under Rule 702 of the Federal Rules of Evidence."). As we

explained in United States v. Montas, 41 F.3d 775 (1st Cir. 1994):

Expert testimony on a subject that is well within the
bounds of a jury's ordinary experience generally has
little probative value. On the other hand, the risk of
unfair prejudice is real. By appearing to put the

heard and seen and the jury could decide for itself the likely
source of income. See id.; accord Yoffee v. United States, 153
F.2d 570, 574 (1st Cir. 1946) (government accountant's testimony
based on corporate ledger sheets that corporate transactions were
not reflected as sales on books and tax returns was admissible,
where defendant had access to ledger sheets and did not introduce
the ledger sheets or object to the testimony on the ground that
they were not in evidence).

-32-
 expert's stamp of approval on the government's theory,
such testimony might unduly influence the jury's own
assessment of the inference that is being urged.

Id. at 784. This is not like testimony that a defendant's

fingerprints are on a weapon, for which specialized knowledge is

required. This testimony threatened to usurp the role of the jury.

The admission of improper testimony is harmless if it is

highly probable that the error did not influence the verdict. See

United States v. Piper, 298 F.3d 47, 56 (1st Cir. 2002). The

government, not the defendants, bears the burden of establishing

harmlessness. United States v. Rose, 104 F.3d 1408, 1414 (1st Cir.

1997). In conducting this inquiry, "[t]here is no bright-line

rule"; the "harmlessness determination demands a panoramic,

case-specific inquiry considering, among other things, the

centrality of the tainted material, its uniqueness, its prejudicial

impact, the uses to which it was put during the trial, the relative

strengths of the parties' cases, and any telltales that furnish

clues to the likelihood that the error affected the factfinder's

resolution of a material issue." United States v. Sepulveda, 15

F.3d 1161, 1182 (1st Cir. 1993). The effects of the improper

testimony vary by defendant.

Segui-Rodriguez

The error was harmless as to Segui-Rodriguez. Other

evidence presented at trial, as well as the admissible testimony of

Agent Stoothoff based on personal knowledge, clearly established

-33-
that Segui-Rodriguez was a member of the conspiracy. Agent

Stoothoff saw Segui-Rodriguez driving the TransAm at the Puerto

Rico Airport, and so identified him. A boarding pass with the name

"Rafael Rodriguez" on it was found in the Isuzu Trooper that was

impounded at the airport. Co-conspirator Hector Martinez-Medina,

who was arrested during the incident at the airport, identified

Segui-Rodriguez as the driver of the TransAm. Elizabeth Morales,

who served as a frequent drug courier for the organization,

testified that Segui-Rodriguez told her in March 1994 that he had

just run into DEA agents at the airport and had fled, leaving

behind 81 kilograms of cocaine. Segui-Rodriguez's presence next to

the Isuzu that contained suitcases of cocaine, combined with his

fleeing the scene when approached by the officers, strongly linked

him to the overall conspiracy.

Multiple government witnesses all identified Segui-

Rodriguez as an important figure in Israel Perez-Delgado's drug

organization. Carlos Perez-Delgado testified that Segui-Rodriguez

was the triggerman for the organization, the bodyguard of Israel

Perez-Delgado, and was responsible for transporting firearms and

surveillance equipment from Miami to Puerto Rico and New York.

Thomas Martinez, another former co-conspirator, testified

in detail about Segui-Rodriguez's responsibility for guarding and

preparing drug shipments. He described one instance in which

Segui-Rodriguez assisted in transporting cocaine hidden in an audio

-34-
speaker to Israel Perez-Delgado's apartment in New York. Martinez

testified that Segui-Rodriguez had three guns, including two semi-

automatic pistols, with him during this incident. Martinez also

described a second incident in which Segui-Rodriguez brought him

and Israel Perez-Delgado to the house of Carlos Perez-Delgado,

where 675 kilograms of cocaine was stored. Martinez said that

Segui-Rodriguez and several others stood armed guard over the

cocaine for about a week, using guns provided by Segui-Rodriguez

and Israel Perez-Delgado. Segui-Rodriguez then assisted in

transporting 360 kilograms of the cocaine into Carlos Perez-

Delgado's van, and then out of the van and into the house of

another co-conspirator, Freddy Melendez.

Elizabeth Morales confirmed that Segui-Rodriguez was

generally present when the drugs were being distributed. She

testified that Segui-Rodriguez would sometimes drive her to the

airport after drugs had been strapped to her body, and that he was

present at meetings between organization members at Israel Perez-

Delgado's apartment in New York City. Vivian Santiesteban, another

co-conspirator, also identified Segui-Rodriguez as a member of the

organization, and described one occasion in which he helped package

drugs and another in which he helped two mules escape police

custody in Aguadilla. This evidence of guilt was overwhelming; the

error in the agent's testimony was harmless as to Segui-Rodriguez.

-35-
Casas5

Casas was also not harmed by the erroneous admission of

Stoothoff's testimony. The evidence at trial firmly established

that Casas played a major role in the organization; as such, it is

highly probable that Stoothoff's conclusion that Casas was the

leader of the Miami branch was the same determination that the jury

would have drawn in the absence of the inadmissible testimony.

Numerous witnesses testified that Casas was the leader of

the organization's branch in Miami and played an active part in

recruiting new members and coordinating their activities. For

instance, Bryan Francis explained that Casas recruited him to help

smuggle drugs past customs officials, promising him that he could

"make some easy money." On multiple occasions, Casas paid Francis

$2,500 to carry a suitcase containing cocaine from the employee-

only part of the airport to the main terminal, thus bypassing

security. At the direction of Casas, Francis would then give the

drugs to a third person who took them with him on a plane headed to

New York. Francis testified that Casas also recruited other

American Airlines employees to assist.

Elizabeth Morales testified that Casas directed American

Airlines employees Francis and Rasta in schemes to smuggle cocaine

5
Although it is not clear whether Casas joined in the
objections of Cunningham and Segui-Rodriguez at trial, and he only
minimally raises the issue of Stoothoff's testimony on appeal, we
assume arguendo that the issue was preserved.

-36-
into the country. Morales said that Casas explained to her a

scheme in which she would fly from Puerto Rico to Brazil, with a

stop-over in Miami. The suitcases Morales checked in Puerto Rico

would then be removed by organization members in Miami, before they

ever went through customs. The drugs were then snuck out of the

airport and into waiting cars.

Witness Carlos Perez-Delgado confirmed this method of

transporting drugs, and explained that "the group led by Ralph

Casas" removed the suitcases containing drugs and redirected them

to New York. Casas was "the boss, the big guy in Miami, and he

supervised the people who were working at Miami." The testimony of

Vivian Santiesteban, the wife of Carlos Perez-Delgado, buttressed

this account. Santiesteban described a meeting involving Casas,

Israel Perez-Delgado, and Carlos Perez-Delgado, in which they

discussed "using the contacts that they ha[d] inside American

Airlines for the smuggling of the drugs."

The evidence showed that Casas's role went well beyond

coordinating organization affiliates inside the airport; he was

also actively involved in storing and transporting the drugs once

they had been successfully smuggled past airport security. Thomas

Martinez testified that Casas delivered two suitcases of cocaine to

Israel Perez-Delgado in Miami and loaded a duffle bag of cocaine

into the car he was driving. Martinez also said that Casas

-37-
accompanied him on at least one occasion to the airport to pick up

shipments of cocaine.

Another government witness, Wilson Rodriguez, confirmed

Casas's prominent role in storing drugs. Rodriguez testified that

he picked up overnight shipments of cocaine that were sent to

numerous post offices in the Miami area and drove them to Casas's

apartment to be stored. Rodriguez also described delivering 100

kilograms of cocaine to Casas's house. Additionally, Carlos Perez-

Delgado testified that Casas stored drugs in his apartment and was

responsible for packaging those drugs and transporting them from

Miami to New York.

Casas also occasionally coordinated the efforts of

organization members outside of Miami. For instance, Martinez

testified that Casas led several organization members on an

expedition in Miami and Fort Lauderdale to purchase guns and

bullet-proof vests. He also explained that after Israel Perez-

Delgado was arrested, Casas helped organize a meeting of

organization members in New York. Again, the evidence of guilt was

overwhelming.

Cunningham

By contrast, the government has not borne its burden of

showing that the improper admission of the evidence was harmless as

to Cunningham. The evidence presented at trial clearly established

that someone named "Rasta" was a member of the organization and

-38-
assisted Casas in switching the bags. The key question is whether

Rasta is Cunningham or is someone else. The link between Rasta and

Cunningham is not firm enough for us to conclude that it is highly

probable that the error did not influence the verdict.

Accordingly, we vacate Cunningham's conviction.

Aside from Agent Stoothoff, three witnesses -- Bryan

Francis, Carlos Perez-Delgado, and Thomas Martinez -- identified

Cunningham as Rasta. The strongest witness is Francis, who

testified that he had met Rasta more than once or twice. Francis

worked with Cunningham at American Airlines and testified that

Cunningham moved suitcases filled with cocaine for Casas four

times. Francis testified that he would give baggage information to

Cunningham, who would then remove the bag from the ITI room so that

Francis could pick up the bag, re-tag it, and move it to a room for

luggage that had already been screened. However, Francis signed an

affidavit saying that, to his personal knowledge, Winston

Cunningham was not involved in the case. This was after Francis

was arrested in connection with this case but before he had agreed

to cooperate with the government. Cunningham also stated when he

was arrested that some people at work called him "Rasta," but in

his testimony denied any involvement in the organization.

The testimony of the other two witnesses that Cunningham

was Rasta was less probative. Martinez and Carlos Perez-Delgado

were each asked in court to identify Rasta -- whom witnesses had

-39-
testified was black -- and both identified the only black defendant

in the courtroom, Cunningham. Each witness had only met Rasta once

or twice briefly some seven or more years earlier. They may have,

under the circumstances, mistakenly identified Cunningham, the only

black defendant in the courtroom, as Rasta.

Carlos Perez-Delgado's identification of Cunningham as

Rasta was based solely on a single meeting in September 1993 at the

Miami airport, eight years before the trial. Perez-Delgado

testified that, during that meeting, Casas introduced Cunningham to

him as Rasta, and that the three of them spoke about a missing

suitcase of cocaine. But this testimony is not consistent with

Perez-Delgado's earlier testimony given in 1999, closer to the

events at issue, that Rasta was a man named "Bryan." Bryan

Francis, the major witness to identify Cunningham as Rasta, also

worked for American Airlines, moved bags of cocaine for Casas, and

was black.

Thomas Martinez's identification of Cunningham as Rasta

was based on only two encounters described at trial, both of which

occurred about seven years prior to trial. In the first encounter,

Rasta stuck his head inside a van in which Martinez was sitting and

said, "We can't find the suitcases." This did not provide Martinez

with a strong basis upon which to identify Cunningham seven years

later. The second encounter in which Martinez allegedly met

Cunningham was a November 1994 meeting in New York during which

-40-
Casas suggested that he would take over Israel Perez-Delgado's

position. But this account conflicts with Bryan Francis's

testimony that Casas only used Cunningham to move four bags and

decided in January 1994 (ten months before the New York meeting)

not to rely any further on Rasta.6

We cannot say that it is highly probable that the jury

would have convicted Cunningham in the absence of Stoothoff's

improper testimony. Because we vacate Cunningham's conviction, we

do not address any of his other liability or sentencing arguments.

e. Speculative and Hearsay Testimony

(Segui-Rodriguez, Casas)

Segui-Rodriguez argues that the court improperly admitted

overly speculative testimony from government witnesses Elizabeth

Morales, Carlos Perez-Delgado, and Vivian Santiesteban. But Segui-

6
Martinez's account of his second encounter with Cunningham
also conflicted with his earlier trial testimony in 1999 of the
1994 meeting in New York, when he said who was in attendance but
did not list Cunningham. Cunningham did not learn about this
testimony until after his conviction in this case. He moved for a
new trial, which was denied, apparently without an evidentiary
hearing. That denial of a new trial is an issue presented on
appeal. The denial was apparently based on the theory that a
defendant is obligated to secure the earlier testimony of all the
witnesses in a massive conspiracy trial once they are listed as
prosecution witnesses. The record is bare of needed facts,
including whether the government ever indicated which of its
witnesses would testify against which defendants and whether
Martinez had made prior witness statements consistent with his 1999
testimony about the New York meeting but inconsistent with his 2001
testimony.
Even without considering this claim, we would find that the
error as to Cunningham was not harmless. But this adds to our
sense of unease about the verdict.

-41-
Rodriguez provides no discussion of this supposedly speculative

testimony in his brief, and so has waived the argument. See Grella

v. Salem Five Cent Sav. Bank, 42 F.3d 26, 36 (1st Cir. 1994).

Segui-Rodriguez and Casas also contend that the district

court improperly admitted several hearsay statements; only some of

these statements implicate any hearsay issue. These include

Martinez's testimony that Israel Perez-Delgado asked him to pick up

cocaine in Florida and later told him that Segui-Rodriguez was

almost caught by authorities at the Puerto Rico airport; Martinez's

description of an incident in which Rasta told him that a suitcase

of cocaine had been lost; and Morales's testimony about drug

shipments that other mules had told her about. Finally, Segui-

Rodriguez argues that a drug ledger that was admitted in evidence

was hearsay. The drug ledger was a pad of paper on which Martinez

had kept track of the money and cocaine that the organization

brought to New York. Martinez testified about several specific

entries recorded in the ledger, including one that indicated Segui-

Rodriguez was paid $500.

Admitting these statements was error, argue Segui-

Rodriguez and Casas, because the district court did not make any

Petrozziello ruling. Under United States v. Petrozziello, 548 F.2d

20 (1st Cir. 1977), 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

-42-
statement was in furtherance of the conspiracy" before it admits

hearsay pursuant to Fed. R. Evid. 801(d)(2)(E). Id. at 23.

Because none of the defendants objected to any of the

alleged hearsay statements or requested a Petrozziello

determination, review is for plain error. See United States v.

Tom, 330 F.3d 83, 93 (1st Cir. 2003); United States v. Woods, 210

F.3d 70, 78 (1st Cir. 2000).

There was no plain error in the admission of any of the

testimony that Segui-Rodriguez cites. With the exception of the

drug ledger, the government presumably introduced in evidence the

challenged statements under the theory that they were admissible

non-hearsay pursuant to the co-conspirator exception in Fed. R.

Evid. 801(d)(2)(E). See id. (statements made "by a coconspirator

of a party during the course and in furtherance of the conspiracy"

are not hearsay). If Segui-Rodriguez or Casas wanted to argue this

point, they should have done so at trial; it was certainly not

plain error to admit the challenged statements under the

government's uncontested theory that they were admissions by co-

conspirators.

It was also not plain error for the district court to

admit the drug ledger. If a ledger manifestly contains drug

records, it is not hearsay if it is admitted in evidence merely for

the purpose of showing the existence of a drug conspiracy. See

United States v. Alosa, 14 F.3d 693, 696 (1st Cir. 1994). That

-43-
inference does not depend on the truth of the matters asserted in

the ledger; even if the amounts of drugs and cocaine recorded in

the leger are completely inaccurate, the ledger would still be

probative of the existence of a drug conspiracy. See id. If, by

contrast, the information in the ledger was admitted for the

purpose of showing that Segui-Rodriguez was at one point owed $500

for his participation in the conspiracy, then the testimony would

be hearsay. See id. Here, the court did not give the jury a

limiting instruction on the evidentiary purposes for which the

ledger could be used. But the failure to give a limiting

instruction that was not requested by the parties certainly does

not constitute plain error here. See United States v. Malik, 928

F.2d 17, 23 (1st Cir. 1991).

f. Alleged Error in Testimony About Homicides

(Segui-Rodriguez)

Segui-Rodriguez argues that the district court failed to

enforce its own ruling forbidding any reference at trial to two

murders involving the organization. The only specific example of

this failure that Segui-Rodriguez identifies is the trial judge's

statement to the jury that the government, in exchange for witness

Thomas Martinez's cooperation, agreed not to prosecute him for two

murders. This statement resolved a conflict between the parties;

while the defendants wanted to impeach Martinez with his plea

agreement, they did not want to open the door to the government's

-44-
introduction of any testimony about the murders. As a compromise,

the prosecution suggested that it would not introduce any evidence

about the murders if the court, rather than the defendants,

informed the jury about the government's plea agreement with

Martinez. The court then asked each party whether this arrangement

was acceptable. Counsel for Segui-Rodriguez indicated his

approval.

Segui-Rodriguez specifically agreed to the court's

statement at trial, and that ends the matter. See Freeman v.

Package Mach. Co., 865 F.2d 1331, 1338 (1st Cir. 1988) ("the

importance of a contemporaneous objection is at its zenith" for

Rule 403 objections in view of the "balancing calculus which that

rule demands"). Any objection was waived.

2. Presence of DEA Agent Stoothoff During Opening
Arguments and Introduction of Defendants

(Segui-Rodriguez)

At the beginning of the trial, the court introduced each

of the defendants to the jury. During that time, Agent Stoothoff,

who would testify as the first witness for the prosecution, was

seated in the courtroom. Segui-Rodriguez, who did not object at

the time, claims on appeal that it was error for the district court

not to order, sua sponte, that Agent Stoothoff be sequestered prior

to his testimony. As a result of this failure, according to Segui-

Rodriguez, Agent Stoothoff's identification of Segui-Rodriguez as

-45-
the driver of the black TransAm at the Puerto Rico airport was

indelibly tainted.

Because no objection was made, review is for plain error.

See Ramirez-Burgos v. United States, 313 F.3d 23, 28-29 (1st Cir.

2002). Absent a request from counsel, the district court enjoys

broad discretion in determining whether or not to sequester

witnesses before their testimony. See United States v. De Jongh,

937 F.2d 1, 3 (1st Cir. 1991). Here, any prejudice to Segui-

Rodriguez from Agent Stoothoff's presence during the defendants'

introductions was minimal, at best; Agent Stoothoff saw Segui-

Rodriguez at the airport and, in any case, was familiar with Segui-

Rodriguez's appearance as a result of being involved with the

investigation for a number of years. Segui-Rodriguez presents no

reason to doubt this. Moreover, even when defendants do request

that a witness be sequestered pursuant to Fed. R. Evid. 615,

government counsel is permitted "to have an investigative agent at

counsel table throughout the trial although the agent is or may be

a witness." Fed. R. Evid. 615 advisory committee's note; see also

United States v. Lussier, 929 F.2d 25, 30 (1st Cir. 1991). There

was no plain error.

C. Post-Trial Claims

1. Sufficiency of the Evidence

(Casas and Segui-Rodriguez)

-46-
 Casas and Segui-Rodriguez each challenge the sufficiency

of the evidence presented at trial. In addressing whether there

was sufficient evidence to support a guilty verdict, "the relevant

question is whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable

doubt." United States v. Henderson, 320 F.3d 92, 102 (1st Cir.

2003) (quoting United States v. Woodward, 149 F.3d 46, 56 (1st Cir.

1998)). We draw all reasonable evidentiary inferences in harmony

with the verdict and resolve all issues of credibility in the light

most favorable to the government. United States v. Taylor, 54 F.3d

967, 974 (1st Cir. 1995). The elements of a conspiracy charge

include "the existence of a conspiracy, the defendant's knowledge

of the conspiracy, and the defendant's voluntary participation in

the conspiracy." United States v. Gomez-Pabon, 911 F.2d 847, 852

(1st Cir. 1990). The third element, voluntary participation,

requires a showing of intent to agree to the conspiracy and intent

to effectuate the object of the conspiracy. United States v. Ruiz,

105 F.3d 1492, 1499 (1st Cir. 1997).

Casas argues that the evidence presented at trial was

insufficient to convict him because it consisted only of

uncorroborated testimony of former co-conspirators and vague,

conclusory statements by Agent Stoothoff. But even after

discounting Agent Stoothoff's inappropriate testimony, there was

-47-
still sufficient evidence presented at trial to convict Casas.

This evidence, discussed in detail in the harmless error analysis

above, could allow a rational jury to conclude that Casas knowingly

coordinated several members of a large organization directed at

smuggling drugs into the continental United States and then selling

them in New York. The jury was entitled to credit the co-

conspirator testimony presented against Casas and to convict him on

that basis. See United States v. Soto-Beniquez, 350 F.3d 131, 174

(1st Cir. 2003); United States v. Torres-Galindo, 206 F.3d 136, 140

(1st Cir. 2000).

The evidence presented at trial was also sufficient to

allow a rational jury to find Segui-Rodriguez guilty of conspiring

to distribute narcotics.7 This evidence was outlined above in the

harmless error analysis. Segui-Rodriguez argues that, with the

exception of the evidence concerning the incident at the Puerto

Rico airport, all of the evidence presented against him at trial

was "based on vague general and second-hand accounts" of his

participation in the conspiracy. This characterization is

incorrect. In addition to the evidence tying Segui-Rodriguez to

the drugs seized at the Puerto Rico airport, the evidence included

testimony about Segui-Rodriguez transporting and providing armed

7
Segui-Rodriguez does not challenge the sufficiency of the
evidence as to the second count of the Superseding Indictment,
which charged him with aiding and abetting the possesion and
distribution of approximately 81 kilograms of cocaine based on his
involvement in the incident at the Puerto Rico airport.

-48-
guard for drug shipments to Carlos Perez-Delgado's house and to

Israel Perez-Delgado's apartment in New York. The testimony also

included specific testimony about Segui-Rodriguez packaging drugs,

transporting mules to the airport, and attending meetings to

discuss future drug shipments. This evidence was sufficient to

allow a rational jury to convict Segui-Rodriguez.

2. Sentencing

a. Casas

In sentencing Casas, the district court determined that

the base offense level was 38 because the conspiracy for which he

was convicted involved over 150 kilograms of cocaine. See U.S.S.G.

§ 2D1.1. It then applied a two-level enhancement for possession of

a dangerous weapon, a four-level enhancement for leadership role,

and a two-level enhancement for violating a position of trust,

arriving at a total offense level of 46. After reducing this

offense level to 43, the maximum under the sentencing guidelines,

the court sentenced Casas to life in prison. The sentencing judge

was not the same judge who conducted Casas's trial.

Casas first argues that his sentence violated the rule of

Apprendi v. New Jersey, 530 U.S. 466 (2000), because the jury did

not determine the drug quantity distributed by the conspiracy. See

United States v. Perez-Ruiz, No. 02-1466, 2003 U.S. App. LEXIS

25889, at *29 (1st Cir. Dec. 19, 2003). He also argues Apprendi

error because the jury made no findings with regard to the

-49-
possession of a firearm in the conspiracy, Casas's leadership role

in the conspiracy, or his abuse of a position of trust. These

arguments are without merit. Contrary to Casas's assertion, the

jury did make a specific drug quantity determination; the jury

convicted Casas using a special verdict form on which it found that

the conspiracy distributed 9,445 kilograms of cocaine. See id. at

*31 ("The jury's findings would be readily ascertainable if the

court had required it to complete and return a special verdict

form.").

As to the sentencing enhancements for firearms

possession, leadership role, and abuse of a position of trust,

Apprendi does not require that the jury make any determinations on

these questions; the statutory maximum for Casas was life

imprisonment. See 21 U.S.C. §§ 841(b)(1)(A), 846 (conspiracy

involving at least five kilograms of cocaine triggers a maximum

sentence of life imprisonment for all co-conspirators). The

additional enhancements do not implicate the rule of Apprendi. See

United States v. Lopez-Lopez, 282 F.3d 1, 22 (1st Cir. 2002)

("Apprendi's prohibition applies only when the disputed fact

enlarges the applicable statutory maximum and the defendant's

sentence exceeds the original maximum." (internal quotations

omitted)).

Casas separately argues that his Fifth Amendment rights

were violated when he was sentenced by a judge who did not preside

-50-
at his trial. Casas recognizes that Fed. R. Crim P. 25(b) permits

any judge regularly sitting in a court to replace a trial judge who

is unavailable after a guilty verdict. He argues, however, that

the successor judge in this case was not sufficiently familiar with

the record to make the factual determinations underlying his

sentencing enhancements. As evidence of the successor judge's lack

of familiarity with the record, Casas observes that the judge was

only given the trial record four days before the sentencing

determination. Casas also notes that the successor judge failed to

correct the prosecutor's statement that Casas had asked Martinez to

protect his nephew; the testimony was actually that Casas had

sought protection for his brother-in-law.

Rule 25(b) recognizes that in certain instances a judge

who inherits a case at the post-verdict stage may not be

sufficiently familiar with the case to sentence the defendants

without conducting a new trial. Fed. R. Crim. P. 25(b)(2)(A);

United States v. Colon-Munoz, 318 F.3d 348, 355 (1st Cir. 2003).

Normally, however, such measures are not necessary because a

replacement judge is "capable of assessing the credibility of the

witnesses and the evidence at trial by a thorough review of the

record." Colon-Munoz, 318 F.3d at 355 (quoting United States v.

Bourgeois, 950 F.2d 980, 988 (5th Cir. 1992)). Successor judges

need not explicitly state their familiarity with the record. Their

-51-
(often implicit) determinations that they are sufficiently familiar

with the record are reviewed for abuse of discretion. Id.

Casas has not established that the successor judge abused

his discretion in taking over the case without ordering a new

trial. During the sentencing hearing, the judge displayed ample

knowledge of the testimony presented at trial. Casas's arguments

to the contrary are entirely unpersuasive. The judge's silence

during the prosecutor's minor misstatement of the evidence does not

demonstrate that the judge was unaware of the error, much less that

he was not sufficiently knowledgeable about the case to render a

fair sentence.

Casas's final challenge to his sentence is that there was

insufficient evidence to support the court's enhancement of his

sentence under U.S.S.G. § 3B1.1(a). To justify this enhancement,

the government must show by a preponderance of the evidence that

the defendant was an "organizer or leader" of the criminal

activity. See United States v. Cruz, 120 F.3d 1, 3 (1st Cir.

1997). Review is for clear error. See United States v. May, 343

F.3d 1, 7 (1st Cir. 2003). Casas suggests that the government did

not meet its burden here because the evidence at trial established

that Casas was subordinate to Israel Perez-Delgado in the

organization.

This argument is unpersuasive. The mere fact that Casas

was subordinate to Israel Perez-Delgado does not establish, without

-52-
more, that Casas was not an organizer or leader of the conspiracy.

See U.S.S.G. § 3B1.1, cmt. n.4 ("There can, of course, be more than

one person who qualifies as a leader or organizer of a criminal

association or conspiracy."). Rather, the sentencing guidelines

list multiple factors for determining whether a defendant is a

leader or organizer. United States v. Robbio, 186 F.3d 37, 45 (1st

Cir. 1999).8

The district court did not commit clear error in finding

that Casas was an organizer or leader of the conspiracy. Numerous

witnesses testified that Casas was the leader of the group in

Miami. The evidence indicated that Casas recruited Bryan Francis

and Rasta to assist in smuggling cocaine past customs officials.

He coordinated the efforts of both recruits, telling them where and

when to pick up the drugs and to whom it should be delivered. He

then paid them thousands of dollars for their assistance. Casas

also led several members of the organization in a coordinated

effort to purchase firearms in Miami. And when Israel Perez-

8
These include (1) whether the defendant exercised
decision-making authority; (2) the nature of his participation in
the commission of the offense; (3) the recruitment of accomplices;
(4) the claimed right to a larger share of the fruits of the crime;
(5) the degree of planning or organizing the offense; (6) the
nature and scope of the illegal activity; and (7) the degree of
control and authority exercised over others. U.S.S.G. § 3B1.1,
cmt. n.4. None of these factors is dispositive; rather, the test
is multi-faceted and requires weighing the evidence as a whole.
See United States v. Tejada-Beltran, 50 F.3d 105, 111 (1st Cir.
1995).

-53-
Delgado was arrested, Casas sought to take control of the entire

operation.

b. Nieves

Nieves challenges the district court's imposition of a

two-level sentencing enhancement under U.S.S.G. § 2D1.1(b)(1) for

possession of a dangerous weapon. He argues that there was no

evidence that he knew or should have known that other members of

the organization possessed a weapon in connection with the

conspiracy. Because Nieves challenges the district court's

application of the guidelines to the facts, review is for clear

error. May, 343 F.3d at 7. The enhancement for possession of a

dangerous weapon requires that it was reasonably foreseeable that

a co-conspirator would possess a gun in furtherance of the criminal

activity. United States v. Mena-Robles, 4 F.3d 1026, 1036 (1st

Cir. 1993). The defendant need not have himself possessed the

weapon. See United States v. Berrios, 132 F.3d 834, 839 (1st Cir.

1998). Here, Thomas Martinez testified that Nieves helped him,

Segui-Rodriguez, and Ray Cabassa guard 675 kilograms of cocaine

that was stored at Carlos Perez-Delgado's house. The four of them

guarded the cocaine for approximately one week and Martinez

testified that both he and Segui-Rodriguez carried guns in the

process, including a small semiautomatic machine gun. It was not

clear error for the district court to credit this testimony and

conclude that, in the course of guarding cocaine with two other

-54-
armed individuals for over a week, Nieves both knew of and could

reasonably foresee his co-conspirators' possession of firearms.

Cf. United States v. Sostre, 967 F.2d 728, 731-32 (1st Cir. 1992)

(enhancement affirmed where co-defendant physically possessed gun

and defendant assisted him in protecting drugs).

IV.

The convictions and sentences of Rafael Segui-Rodriguez,

Ralph Casas, and Feliciano Nieves are affirmed. Winston

Cunningham's conviction is vacated.

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