United States Court of Appeals
For the First Circuit
No. 00-1711
UNITED STATES OF AMERICA,
Appellee,
v.
PEDRO DE JESUS MATEO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. George A. O'Toole, Jr.,* U.S. District Judge]
Before
Boudin, Chief Judge,
Lipez and Howard, Circuit Judges.
Raymond Sanchez Maceira for appellant.
Thomas F. Klumper, Assistant United States Attorney, with whom
H.S. Garcia, United States Attorney, and Sonia I. Torres-Pabón,
Assistant United States Attorney, were on brief, for appellee.
June 24, 2004
*Of the District of Massachusetts, sitting by designation.
HOWARD, Circuit Judge. Pedro De Jesus Mateo appeals his
conviction for conspiring to possess narcotics with the intent to
distribute and the resulting sentence imposed. We affirm the
judgment.
I. Background
In the late 1980's, De Jesus befriended Orlando Rosa
Rodriguez in Ponce, Puerto Rico. In the beginning of 1990, Rosa
began a drug trafficking organization operating in the Belgica Ward
of Ponce. During the fall of 1990, Rosa expanded the enterprise
and moved it to the Portugues Public Housing Project in Ponce. By
the end of 1990, De Jesus was working for Rosa, processing heroin
and cocaine and helping procure additional drug supply. In early
1992, Rosa gave De Jesus control of a marijuana "drug point" in the
Portugues Housing Project.
In 1995, Rosa was incarcerated for drug offenses but
continued to operate the enterprise from prison. Rosa left two
associates in charge of the operation. These associates were
delinquent in collecting money, so Rosa replaced them with his
sister and De Jesus. In this capacity, De Jesus collected
delinquent debts, processed heroin, and operated the heroin "drug
point." For his services, Rosa paid De Jesus $200 per week. De
Jesus eventually withdrew from the organization in the fall of
1997.
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On these facts, a jury convicted De Jesus of
participating in a conspiracy to possess cocaine and heroin with
the intent to distribute operating in Ponce from 1990 through the
fall of 1997. See 21 U.S.C. §§ 841(a)(1) & 846. The district
court sentenced De Jesus to life in prison because this was his
third conviction for a drug-related felony. See 21 U.S.C. §
841(b)(1)(A).
II. Discussion
De Jesus raises two issues on appeal. First, he claims
that the district court erred by declining to order a mistrial
after Rosa provided testimony implicating him in criminal acts that
were beyond the scope of the conspiracy. Second, he contends that
the district court erroneously relied on his two prior drug
convictions to impose an enhanced sentence under 21 U.S.C. §
841(b)(1)(A) because the prior convictions comprised conduct that
was part of the instant conspiracy offense.
A. Mistrial
De Jesus identifies three points in Rosa's testimony
where Rosa improperly implicated him in criminal conduct that was
outside of the conspiracy. First, Rosa testified about his own
involvement in a 1990 murder. Defense counsel objected that Rosa
implicated De Jesus in the murder by gesturing toward De Jesus when
discussing the crime. The district court responded by instructing
Rosa to confine his answers to his own criminal conduct, but
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defense counsel, not satisfied, moved for a mistrial. The court
denied the motion, noting that it "did not see a gesture as
dramatic as the one described," and that it was not as "clear or
unambiguous [as defense counsel] may have suggested."
Second, Rosa testified that De Jesus worked packaging
drugs. Rosa then stated, "In 1991 he was in prison."1 Defense
counsel objected, and the district court struck the comment.
Finally, Rosa testified about his last drug transaction with De
Jesus. Rosa stated that he had asked De Jesus to help him obtain
drugs while he (Rosa) was in prison. Defense counsel objected to
this testimony because this act was outside the scope of the
conspiracy and requested a mistrial. The court again struck the
testimony but declined to order a mistrial.2
De Jesus contends that, individually and combined, the
effect of this improper testimony was so prejudicial that a
mistrial was warranted. We review the district court's decision to
1
There is some confusion in the record concerning whether this
statement was made by Rosa or the prosecutor. De Jesus claims that
the statement was made by Rosa and there is substantial record
support for that view. We therefore have considered the claim in
this light. But even if the prosecutor had made the statement, our
conclusion would remain the same because, as discussed in the text,
the district court's curative instructions sufficiently remedied
any prejudice. See infra at 6-7.
2
The court ruled that this testimony concerned an act that
was within the scope of the conspiracy and would normally be
admissible. But, because the government had filed a pretrial
notice representing that this evidence would not be introduced in
its case-in-chief, the court struck the testimony.
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deny a mistrial motion for an abuse of discretion. See United
States v. Bradshaw, 281 F.3d 278, 284 (1st Cir. 2002). A mistrial
is a last resort that is only ordered if the demonstrated harm
cannot be cured by less drastic means. See United States v.
Rullan-Rivera, 60 F.3d 16, 18 (1st Cir. 1995).
De Jesus focuses substantial attention on Rosa's
"gesture" supposedly implicating him in a 1990 murder. Testimony
clearly implicating De Jesus in a murder outside of the charged
conspiracy could be thought to have caused substantial prejudice.
The difficulty with this argument, however, is that the district
court found that Rosa's gesture was neither as "dramatic" nor
"unambiguous" as De Jesus suggests. "The trial court has a
superior point of vantage" and "it is only rarely--and in extremely
compelling circumstances--that an appellate panel, informed by a
cold record, will venture to reverse a trial judge's on-the-spot
decision." United States v. Freeman, 208 F.3d 332, 339 (1st Cir.
2000) (internal citations and quotations omitted). Neither De
Jesus's brief nor our own review of the record provides a basis for
disregarding the district court's view of events and its conclusion
that De Jesus was not substantially prejudiced by the incident.
See United States v. Pierro, 32 F.3d 611, 617 (1st Cir. 1994)
("[B]attles over the need for a mistrial most often will be won or
lost in the district court").
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For Rosa's two inadmissible comments, the district court
provided prompt and forceful curative instructions. Immediately
after Rosa's comment, "He was in prison in 1991," the court told
the jury "to disregard the answer." Similarly, just after Rosa
described De Jesus arranging to bring him drugs in prison, the
court instructed, "Jurors, the witness's evidence from the last few
questions concerning what he described as a transaction when he was
in prison, all that evidence is stricken, and you will disregard it
in your decision in this case." Also as part of its final
instructions, the district court reminded the jurors to disregard
stricken testimony:
There was at least one and maybe several
occasions on which an answer or a portion
of an answer may have been given by a
witness, and it was excluded from the
evidence. You may recall that I did
that. Evidence that I ordered to be
stricken, you are to disregard and put
out of your minds. It is not part of
your consideration and may not be the
subject of your discussion in the jury
room.
Within wide margins, the prejudice caused by improper
testimony can be addressed by providing appropriate curative
instructions similar to those supplied here. See United States v.
Sepúlveda, 15 F.3d 1161, 1184 (1st Cir. 1993). This rule is a
corollary of the presumption that "juries follow instructions"
unless there is "a sufficient showing that the offending testimony
reasonably could not have been ignored and that serious prejudice
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likely resulted." United States v. Gonzalez-Vazquez, 219 F.3d 37,
48 (1st Cir. 2000) (quotations omitted). De Jesus has not made this
showing. The statement, "He was in prison," provided the jury with
little detail, and it is not altogether clear that it referred to De
Jesus, as Rosa blurted out the statement when there was no question
pending.
Further, Rosa's testimony concerning the later transaction
in which De Jesus brought drugs to Rosa in prison, also excluded by
the court with a curative instruction, constituted additional
evidence concerning De Jesus's work in furthering the conspiracy.
See Bradshaw, 281 F.3d at 285 (affirming denial of motion for
mistrial where inadmissible evidence was largely cumulative).
Finally, the strong proof of De Jesus's guilt militates
against disturbing the district court's decision against declaring
a mistrial. See United States v. DiSanto, 86 F.3d 1238, 1249 (1st
Cir. 1996) (affirming denial of mistrial motion because evidence was
strong); United States v. Belardo-Quiñones, 71 F.3d 941, 945 (1st
Cir. 1995) (similar); United States v. Bello-Pérez, 977 F.2d 664,
672 (1st Cir. 1992) (similar). The government presented testimony
from Rosa and his sister chronicling De Jesus's involvement in the
conspiracy, an audio tape recording of De Jesus arranging a drug
transaction and discussing a debt that one of the co-conspirators
owed Rosa, and another tape recording of two co-conspirators
discussing that De Jesus was no longer going to work for Rosa. De
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Jesus's entire case consisted of calling Rosa to question his
credibility. In short, this was not a close case. For these
reasons, the district court's denial of De Jesus's motion for a
mistrial was not an abuse of discretion.
B. Sentencing
The district court sentenced De Jesus to a life sentence
pursuant to the sentencing enhancement provisions of 21 U.S.C. §
841(b)(1)(A). In relevant part, this section provides that if a
person is convicted of conspiring to possess in excess of a certain
amount of controlled substance with the intent to distribute "after
two or more prior convictions for felony drug offenses have become
final, such person shall be sentenced to a mandatory term of life
imprisonment without release." 21 U.S.C. § 841(b)(1)(A). De Jesus
was convicted in Puerto Rico Superior Court of possessing cocaine in
January 1991 and of possessing marijuana with the intent to
distribute in November 1991. Both crimes occurred in Ponce and
there is no dispute that they constitute felonies under Puerto Rico
law.
De Jesus claims that these prior convictions should not
count for purposes of applying the sentencing enhancement under 21
U.S.C. § 841(b)(1)(A). He argues that, because the prior
convictions occurred during the time period and in the geographic
location of the conspiracy charged in this case, the prior
convictions represent "the same criminal conduct" as the conspiracy
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conviction and consequently "should not count toward the
enhancement."
De Jesus makes this argument by asserting that, under the
Sentencing Guidelines, all three convictions (the two prior
convictions and the conspiracy conviction) would be grouped togther
as related cases pursuant to U.S.S.G. § 4A1.2 and therefore should
not count as separate convictions for purposes of applying 21 U.S.C.
§ 841(b)(1)(A). This argument misconstrues the purpose of the
Sentencing Guidelines. The Guidelines focus on the length and
nature of the sentence, not the fact of conviction. Whether prior
convictions count for purposes of 21 U.S.C. § 841(b)(1)(A) is a
matter of statutory construction, not Guideline application. See
United States v. Blackwood, 913 F.2d 139, 145 n.4 (4th Cir. 1990);
see also United States v. Maxey, 989 F.2d 303, 307-08 (9th Cir.
1993) (rejecting similar argument). Indeed, the Guidelines
specifically provide that statutorily required minimum sentences
must be applied in lieu of the Guideline range if the statutory
minimum is longer. See U.S.S.G. § 5G1.1.
But that the Guidelines do not provide the analytical
vehicle for resolving De Jesus's argument does not end the matter.
"Prior felony drug convictions will be counted separately for
purposes of 21 U.S.C. § 841(b) only when they represent distinct
criminal episodes." United States v. Martinez-Medina, 279 F.3d 105,
123 (1st Cir. 2002) (citing United States v. Gillies, 851 F.2d 492,
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497 (1st Cir. 1988)). De Jesus contends that his prior convictions
do not represent "distinct criminal episodes" because they are part
and parcel of his participation in the conspiracy. Circuit
precedent forecloses this argument. See Martinez-Medina, 279 F.3d
at 123.
In Martinez-Medina, we stated that:
An ongoing course of criminal conduct such
as narcotics trafficking may involve many
such criminal episodes, each a discrete
occurrence. The fact that all are
related, part of a series, or part of a
continuous course of criminal dealing,
does not necessarily render them a
"single" criminal episode, particularly
where the episodes occur over time. To so
hold would insulate the very career
criminals the statute is designed to
reach--those continuously engaged in
criminal conduct.
Id. (quoting Maxey, 989 F.2d at 307). Consequently, we held that
the district court properly imposed a life sentence under 21 U.S.C.
§ 841(b)(1)(A) because the defendant's prior convictions, although
part of one drug trafficking conspiracy, stemmed from several
transactions, occurring several months apart. See id. So too here.
De Jesus's prior convictions were for separate drug transactions
that occurred eleven months apart. See id.; see also United States
v. Gray, 152 F.3d 816, 821-22 (8th Cir. 1998) (stating that drug
transactions occurring one-day apart which required separate
planning and execution constitute distinct criminal episodes under
21 U.S.C. § 841(b)(1)(A)); United States v. Griffin, 109 F.3d 706,
708 (11th Cir. 1997) ("Two drug transactions occurring on different
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days--albeit within the same week and in the same general location--
constitute separate unrelated offenses for purposes of sentencing
under 21 U.S.C. § 841(b)(1)(A)."). Accordingly, the district court
correctly counted them as prior convictions for purposes of 21
U.S.C. § 841(b)(1)(A).3
Affirmed.
3
De Jesus attempts to distinguish Martinez-Medina on the basis
that the government presented evidence of marijuana trafficking in
the instant case which was the same conduct underlying De Jesus's
prior marijuana conviction. As explained in the text, Martinez-
Medina holds that each conviction arising from a distinct criminal
episode counts as a separate conviction for purposes of 21 U.S.C.
§ 841(b)(1)(A) even though this same conduct is within the scope of
the conspiracy. See supra at 10. The dispositive point here is
not that evidence of De Jesus distributing marijuana was presented
at his conspiracy trial but rather that his prior cocaine
conviction was a separate criminal episode from his prior marijuana
conviction even though the conduct underlying both convictions was
arguably part of the same conspiracy. As for any claim that the
conspiracy comprised the same episode as either of the two prior
convictions, the short answer is that the conviction in this case
was for conspiring to distribute heroin and cocaine, an episode
continuing well beyond either of the prior convictions for discrete
episodes of possession and distribution.
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