United States v. Rivera-Rangel

United States Court of Appeal
For the First Circuit

No. 05-2042

UNITED STATES OF AMERICA,

Appellee,

v.

MARIA DE LOS ANGELES RIVERA RANGEL,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Pérez-Giménez, U.S. District Judge]

[Hon. Carmen Consuelo Cerezo, U.S. District Judge]

Before

Boudin, Chief Judge,
Selya, Circuit Judge, and
Schwarzer,* Senior District Judge.

Ignacio Fernández de Lahongrais, with whom Edgar Vega Pabon
was on brief, for appellant.
Kathleen A. Felton, United States Dep't of Justice, with whom
H.S. Garcia, United States Attorney, Guillermo Gil and Maritza
Gonzalez De Miranda, Assistant United States Attorneys, were on
brief, for appellee.

October 25, 2006

__________
*Of the Northern District of California, sitting by designation.
 SELYA, Circuit Judge. This is a sequel to an earlier

appeal. See United States v. Rivera Rangel, 396 F.3d 476 (1st Cir.

2005). In it, defendant-appellant Maria de Los Angeles Rivera

Rangel (Rivera) tries once again to defenestrate her Hobbs Act

convictions. This time around, she substitutes a series of Sixth

Amendment claims for her previously unrequited claims of

evidentiary insufficiency. Her new arguments fare no better than

her old arguments: although her appellate counsel has pleaded her

case ably, the freshly minted argumentation lacks adequate

grounding in the trial record. We therefore affirm the appellant's

convictions. At the same time, however, we accept the parties'

joint importuning and remand for resentencing.

We rehearse the background only to the extent necessary

to explain our reasoning, urging readers who hunger for a more

complete profile to consult our earlier opinion. See id. at 480-

82.

The appellant served for some time as a top aide to the

governor of Puerto Rico. On August 23, 2002 — after both she and

the governor whom she served had left office — a federal jury

convicted her of one count of conspiracy to interfere with commerce

by extortion induced by fear of economic harm and/or under color of

official right, 18 U.S.C. § 1951, and one count of aiding and

abetting the underlying offense, id. § 2. The convictions rested

largely on the testimony of two businessmen, José Miguel Ventura

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Asilis (Ventura) and Angel Luis Ocasio Ramos (Ocasio). These men

testified that they had given money to the appellant in exchange

for access to high-ranking government officials.

The trial judge ordered a judgment of acquittal

notwithstanding the jury verdict or, in the alternative, a new

trial. On appeal, we reinstated the verdict. See Rivera Rangel,

396 F.3d at 486. In the course of that appeal, we rejected

Rivera's plea that the government had failed to demonstrate that

Ventura or Ocasio feared her but, rather, were willing participants

in the spreading around of money. See id. at 483.

Pursuant to our direction, the case, on remand, was

reassigned for the penalty phase of the proceedings. The new judge

thereafter sentenced Rivera to a 48-month incarcerative term. This

appeal followed.

Rivera, qua appellant, now maintains that various

curtailments of her efforts to cross-examine witnesses violated her

right to confront her accusers. See U.S. Const., amend. VI; Davis

v. Alaska, 415 U.S. 308, 320 (1974). She points to no fewer than

five occasions on which the trial court thwarted proposed lines of

inquiry and posits that these inquires, if permitted, would have

been highly probative of the fact that her accusers freely elected

to make payments to her. Because the government's case was thin,

her thesis runs, these abridgments of her Sixth Amendment rights

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were distinctly prejudicial and require that her convictions be set

aside.

But, there is a rub. Despite the fervor with which the

appellant's arguments are presented, they are built on quicksand.

We explain briefly why we reach that conclusion.

We start with the one ground of complaint that merits

extended discussion. The appellant's trial counsel attempted to

question Ocasio regarding payments that he had received from

Ventura while he (Ocasio) was himself a government official

(payments that allegedly occurred years before the inception of the

charged conspiracy). Ocasio responded by invoking his right

against self-incrimination. See U.S. Const., amend V. At that

juncture, the appellant moved for a mistrial, but the district

court denied the motion. The appellant assigns error to this

ruling.

For purposes of precision, we begin this phase of our

discussion by inquiring into what ground of appeal the motion for

mistrial served to preserve. It is beyond peradventure that the

motion preserved a claim of error as to the failure to grant a

mistrial. It is less clear, however, whether the appellant can

leverage the motion into a foundation for challenging the failure

to take action with respect to Ocasio's previous testimony. After

all, the appellant did not move to strike the testimony to that

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point. See, e.g., United States v. Sepulveda, 15 F.3d 1161, 1183

(1st Cir. 1993).

This is significant because remonstrances about rulings

that have the effect of admitting evidence ordinarily must be

preserved through either "a timely objection or motion to strike,"

Fed. R. Evid. 103(a)(1); see United States v. Meserve, 271 F.3d

314, 325 (1st Cir. 2001). It is not self-evident, as a matter of

logic, that a motion for mistrial qualifies.

Be that as it may, the denial of a motion for a mistrial

is subject to review for abuse of discretion, see Sepulveda, 15

F.3d at 1184, and that ground of appeal plainly was preserved. The

same standard — abuse of discretion — governs appellate review of

rulings admitting or excluding evidence, see United States v.

Maldonado-Garcia, 446 F.3d 227, 231 (1st Cir. 2006), and in this

instance the inquiries seem to overlap. Given this similitude, we

elect to treat this claim of error as preserved with regard to

Ocasio's direct testimony being allowed to stand.

In the long run, winning that battle does not help the

appellant to win the war. The appellant effectively concedes that

Ocasio had a colorable Fifth Amendment right to remain silent as to

these earlier uncharged transactions (none of which were covered by

his testimony on direct examination). In United States v. Berrio-

Londono, 946 F.2d 158 (1st Cir. 1991), we observed: "In determining

whether a witness's refusal to answer questions posed during cross-

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examination constitutes a denial of the defendant's confrontation

rights . . . a distinction must be drawn between direct and

collateral matters." Id. at 160.

That principle possesses particular pertinence here. If

the evidence sheltered behind Ocasio's invocation of the Fifth

Amendment was directly relevant, the appellant's rights may have

been compromised by the earlier admission of Ocasio's testimony.

See, e.g., United States v. Cardillo, 316 F.2d 606, 613 (2d Cir.

1963) (reversing convictions when key witness invoked Fifth

Amendment midstream and "[t]he answers solicited might have

established untruthfulness with respect to specific events of the

crime charged"). If, however, the proffered line of questioning

touched upon matters of only collateral import, the court had broad

discretion to permit the direct testimony to stand while allowing

Ocasio to invoke his right to silence on certain subjects raised by

the cross-examiner. See, e.g., Berrio-Londono, 946 F.2d at 161

(denying relief when the questions that the witness refused to

answer on cross-examination served only to "gild[] the lily"). As

long as the case at hand falls within the latter category, the

motion for mistrial was properly denied.

The appellant's brief argues forcefully that the desired

cross-examination was central to her defense. Specifically, she

remonstrates that had the jury been alerted to Ventura's history of

doling out cash to public servants, it might have concluded that

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the payments to the appellant were part of an established way of

doing business rather than tribute extorted through threats of

reprisal or under color of official right (the standard for Hobbs

Act extortion, see United States v. Cruz-Arroyo, 461 F.3d 69, 73

(1st Cir. 2006)).

The chief difficulty with this argument is that it comes

too late. That is to say, even though the denied line of cross-

examination bears a direct relationship to the "willing

participant" defense, that theory of defense was first clearly

articulated in the appellant's second motion for a judgment of

acquittal, filed six months after the jury had spoken.1 It was not

asserted at trial. There, the appellant's theory of defense was

1
There are three places in the trial record that contain faint
echoes of the "willing participant" defense. One is a brief
allusion in closing argument suggesting that multi-millionaire
developers had nothing to fear from the appellant. In context,
however, the clear implication of this allusion was that these
powerful men had little need for the appellant's assistance and,
logically, would not have bothered to grease her palm. The second
is a cryptic comment during a motion for a judgment of acquittal
presented after the government's case was concluded, see Fed. R.
Crim. P.29(a), in which counsel observed that the government had
failed to introduce evidence of "fear or harm." The third is an
attempt to ask Ocasio on cross-examination if he feared the
appellant. After the court sustained an objection to this
question, counsel, without argument or attempt to rephrase, ended
his cross-examination. None of these can sustain the weight of an
entire defense theory. At any rate, the sockdolager is that all
three incidents occurred after the judge had denied the motion for
mistrial and, therefore, could not have alerted him to what the
appellant now says is the possible relevance of Ocasio's prior
misconduct.

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that she had not actually accepted any monies from either Ocasio or

Ventura in return for access to government officials.

Not surprisingly, then, when the appellant's trial

counsel argued the motion for mistrial, he did not suggest — or

even so much as hint — that the thrust of his inquiry into matters

pre-dating the conspiracy was to demonstrate a lack of fear on the

part of the alleged victims. Rather, consistent with the defense

strategy rolled out at trial, counsel argued that the denied line

of cross-examination was necessary to impeach Ocasio's credibility

by showing specific instances of bad character under Federal Rules

of Evidence 404 and 608. At no time did counsel alert the court to

the possibility that these prior bad acts might do double duty as

evidence of willing participation.

The fact that a party has preserved an objection does not

mean that, on appeal, the party can raise any conceivable ground in

support of that objection. In the context of a ruling admitting

evidence, we have explained that a "lack of specificity bars the

party aggrieved by the admission of the evidence from raising more

particularized points for the first time on appeal." United States

v. Holmquist, 36 F.3d 154, 168 (1st Cir. 1994). This logic is

fully transferable to a ruling excluding evidence (or, as here, a

ruling denying a motion for a mistrial premised on a refusal to

allow a particular line of questioning). In either case, a

contrary holding would enable a party to retrench after an adverse

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jury verdict and ask an appellate court to view the trial judge's

evidentiary rulings through a new and different lens. This sort of

second-guessing is antithetic to the core purpose of procedural

default rules. Thus, we treat the appellant's objection as

preserved only as to the theory presented in support thereof to the

trial court, namely, that the denied cross-examination would have

been useful for impeachment purposes.

That effectively ends this aspect of the appeal.

Impeachment through reference to a witness's prior conduct is often

a paradigmatic example of a collateral pursuit. The admission of

this type of evidence is always subject to the trial judge's sound

discretion. See Fed. R. Evid. 608(b). On several prior occasions,

we have found the exclusion of such evidence appropriate in the

face of Sixth Amendment challenges. See, e.g., Berrio-Londono, 946

F.2d at 161; United States v. Barrett, 766 F.2d 609, 615 (1st Cir.

1985).

The testimony shielded by Ocasio's assertion of his Fifth

Amendment privilege is of this genre. Despite the modest

impediment that the exclusion of such testimony may have created,

the appellant retained access to a variety of effective ways with

which to attack Ocasio's credibility — not the least of which was

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the fact that Ocasio had pleaded guilty to related charges and was

hoping for a lenient sentence.2 No more was exigible.

To be sure, the appellant argues that the unavailable

testimony had added significance because it concerned criminal

conduct with which Ocasio had not been charged, thus suggesting

another potential reason for Ocasio to furnish testimony favorable

to the government. Yet, that sort of argument has heretofore been

tried and found wanting: an "inability to superimpose on [a

witness's] admissions the possibility that [the witness] might also

be concerned about punishment for other offenses can hardly be

characterized as an abridgement of [the defendant's] right to

effective cross-examination." Berrio-Londono, 946 F.2d at 161.

Here, moreover, even though the lower court denied the appellant

the opportunity to press Ocasio about the previous transactions,

Ventura already had confirmed their occurrence.3 Consequently, the

2
In some contexts, a witness's credibility also may be
undermined by the very exercise of his Fifth Amendment rights in
the presence of the jury. See Berrio-Londono, 946 F.2d at 162.
Here, however, the trial judge instructed the jury that Ocasio's
claim of Fifth Amendment privilege was irrelevant.
3
This single fact destroys any chance for the appellant to
prevail on an argument that permitting Ocasio to invoke the Fifth
Amendment was plain error when the "willful participant" defense is
taken into account. As we have written, "[t]estimony that is
cumulative in nature and limited in scope cannot constitute plain
error." United States v. Bailey, 270 F.3d 83, 88 (1st Cir. 2001).
In an effort to parry this thrust, the appellant asserts that, had
Ocasio's claim of privilege been denied, she would have elicited
testimony beyond the scope of Ventura's revelations. Appellant's
Reply Br. at 4-5. Since the appellant's trial counsel neglected to
make a contemporaneous offer of proof, we cannot credit this

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jury had available to it all the information needed to discount

Ocasio's credibility on the basis of his earlier unscrupulous

dealings.

The Sixth Amendment assures a criminal defendant a right

of effective cross-examination, not a right of unrestricted cross-

examination. See United States v. Mulinelli-Navas, 111 F.3d 983,

987 (1st Cir. 1997). In this instance, the opportunity for

effective cross-examination was not foreclosed by the mistrial

ruling. Consequently, we conclude that the lower court acted well

within its discretion in prioritizing the probative value of

Ocasio's testimony over the necessary limitations on cross-

examination concerning collateral matters that upholding his Fifth

Amendment privilege entailed.

The remaining claims of error need not occupy us for

long. In each and all of these instances, the appellant's trial

counsel did not object, did not attempt to rephrase challenged

questions, and did not make an offer of proof. See Fed. R. Evid.

103(a)(2); Fed. R. Crim. P. 51(b). Accordingly, these four

assignments of error are procedurally defaulted.4

speculation. See Fed. R. Evid. 103(a)(2); see also United States
v. Mulinelli-Navas, 111 F.3d 983, 992 (1st Cir. 1997) (elucidating
cross-examiner's burden, in the face of an objection, to
"adequately indicate[] to the district court the theory of defense
she want[s] to pursue").
4
In a letter submitted following oral argument, see Fed. R.
App. P. 28(j), the appellant's counsel argues that our holding in
United States v. Vega Molina, 407 F.3d 511 (1st Cir. 2005),

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 The procedural default rules, though sometimes harsh in

their application, "are essential to the balanced and orderly

functioning of our adversarial system of justice." United States

v. Griffin, 818 F.2d 97, 99-100 (1st Cir. 1987). They deserve our

allegiance here. These four claims are, therefore, reviewable only

under the plain error standard — a standard that is notoriously

difficult to satisfy.

The inquiry into plain error is elementary. The trial

court sustained objections on relevancy grounds to questions anent

(i) payments (unrelated to the appellant) allegedly made to high-

ranking political figures; (ii) business deals between Ventura and

Ocasio, including payments to the latter while he was in government

service; and (iii) whether Ocasio actually feared the appellant.

All of these lines of inquiry play into the appellant's theory on

appeal — willing participation — but as we already have explained,

that theory would not have been apparent to the nisi prius court.

Finally, the district court denied the appellant the opportunity to

press Ocasio, who had testified that he had no plea agreement, as

to whether he had any type of agreement whatever with the

prosecution.

suggests that, in cases raising Sixth Amendment concerns, there is
no need to attempt to make an offer of proof or to rephrase
questions in order to avoid procedural default. Vega Molina does
not stand for so eccentric a proposition. In embracing that
opinion, the appellant's counsel seems to have overlooked that the
claim at issue there was "duly preserved." Id. at 522.

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 In none of these instances can the appellant vault the

quadrat of hurdles incorporated in the plain error standard. To

prevail on any of these forfeited claims of error, the appellant

must make four showings: "(1) that an error occurred (2) which was

clear or obvious and which not only (3) affected the defendant's

substantial rights, but also (4) seriously impaired the fairness,

integrity, or public reputation of judicial proceedings." United

States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001).

In no instance has the appellant satisfied even the first

of these four prerequisites. It is easy to imagine that the

queries at issue would have been confusing to the jury and — given

the nature of the defense presented at trial — not particularly

illuminating. At any rate, supplying context divests the four

claims of error of even their initial patina of plausibility. For

example, it may seem troubling at first blush that the appellant

was not permitted to ask Ocasio if he feared her, but in the

context of the cross-examination to that point it was not

unreasonable to think that counsel was either repeating a question

previously asked and answered or attempting to create the

appearance of a contradiction where none existed.

Even were we to assume for argument's sake that any or

all of these restrictions on cross-examination were erroneous, the

appellant would not get very far. Based on our review of the

record as a whole, these limitations neither affected the

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appellant's substantial rights nor impaired the integrity of the

proceeding. The record makes manifest that the trial judge gave

the appellant broad latitude to cross-question both of the

government's star witnesses, and her trial counsel vigorously

exploited that latitude. And, finally, the judge afforded the

appellant a full and fair opportunity to present the defense of her

choosing to the jury. The Sixth Amendment demands no more.

Mulinelli-Navas, 111 F.3d at 987, 992.

To cinch matters, the fourth prong of the plain error

test bars relief here. Choices have consequences and, for aught

that appears, the appellant made a strategic choice as to what line

of defense might work at trial. Fundamental fairness neither

requires nor suggests that an appellate court relieve her of the

consequences of that choice by reinterpreting trial proceedings in

light of an alternate theory of defense first clearly articulated

after the verdict.

The absence of any principled basis for a finding of

plain error in the exclusion of evidence brings us to the last

issue. The district court sentenced the appellant during the

twilight period between the Supreme Court's watershed decision in

United States v. Booker, 543 U.S. 220 (2005) (rendering the federal

sentencing guidelines advisory), and our explanatory dissertation

in United States v. Jiménez-Beltre, 440 F.3d 514 (1st Cir. 2006)

(en banc) (elucidating Booker and providing guidance to sentencing

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courts on how to work with advisory guidelines). The decision in

Jiménez-Beltre required, among other things, that in the absence of

exceptional circumstances — not present here — a sentencing court

should begin its work by calculating the applicable guideline

sentencing range. See Jiménez-Beltre, 440 F.3d at 518 ("In most

cases, this will mean that the district court will have to

calculate the applicable guidelines range . . . before deciding

whether to exercise its new-found discretion to impose a non-

guidelines sentence."); see also United States v. Pho, 433 F.3d 53,

61 (1st Cir. 2006) (explaining that, post-Booker, "the guidelines

remain part and parcel of the sentencing algorithm").

Here, the sentencing court did not pause to calculate the

applicable guideline sentencing range. Given the uncertainty that

existed in the roiled wake of Booker, it is not surprising that the

court lacked the clairvoyance to foresee the procedures that we

would deem necessary for sentencing under an advisory guideline

regime. In light of this and other omissions, the government and

the appellant — who agree on little else — both request that we

vacate the sentence and remand to the district court for

resentencing consistent with the steps limned in Jiménez-Beltre.

The ends of justice counsel that we accommodate this sensible

suggestion, and we do so. We caution, however, that we take no

view of the length of the sentence previously imposed; the district

court remains free, in line with the dictates of Booker, Jiménez-

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Beltre, and 18 U.S.C. § 3553, to impose a reasonable sentence

above, below, or equal to that previously imposed.

We need go no further. Procedural lapses limit and

define what may be reviewed on this appeal. For the most part, the

appellant's claims of error are forfeit. The little that remains

of those claims is untethered from the trial proceedings and, thus,

insufficient to serve as a fulcrum for overturning the convictions.

Withal, the appellant's sentence must be vacated.

Affirmed in part, vacated in part, and remanded for resentencing.

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