United States v. Tejada

United States Court of Appeals
For the First Circuit

No. 06-1824

UNITED STATES OF AMERICA,

Appellee,

v.

WILLIAM TEJEDA,

Defendant, Appellant.

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

[Hon. William G. Young, U.S. District Judge]

Before

Boudin, Chief Judge,
Torruella and Lynch, Circuit Judges.

David J. Apfel, with whom Jennifer W. Fischesser, William J.
Trach, and Goodwin Procter LLP were on brief, for appellant.
Susan M. Poswistilo, Assistant United States Attorney, with
whom Michael J. Sullivan, United States Attorney, was on brief, for
appellee.

April 3, 2007
 LYNCH, Circuit Judge. William Tejeda was convicted after

a twelve-day jury trial of conspiracy to possess with intent to

distribute cocaine base in the amount of 50 grams or more. Tejeda

was a New York supplier of drugs for a Cape Cod drug ring. This

criminal appeal attacks both Tejeda's conviction and the sentence

imposed. The attack on the conviction is based largely on an

incident in the courtroom in which a spectator made a throat-

slitting gesture.

Four of Tejeda's co-conspirators pled guilty, and two,

Amanda Eldridge and Desiree Alves, testified against him. Tejeda

and a co-conspirator, Carmen Figueroa, went to trial; she

testified, he did not. Both were convicted. Tejeda was sentenced

to twenty years' imprisonment, five years of supervised release,

and a special assessment of $100.

As to his conviction, Tejeda does not attack the

sufficiency of the evidence. The evidence against him was

extremely strong, a point discussed later. He does argue that the

trial court committed two errors that deprived him of a fair trial

and require his conviction be set aside. The first claim of error

is that the court should have granted a mistrial when an older man

sitting in the gallery of the courtroom on the first day of trial

(and later possibly connected to defendant by the evidence) made a

throat-slitting gesture. That gesture was seen by two jurors and

discussed by them with other jurors. The second trial error

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alleged was that the court erred in not severing Tejeda's trial

from co-defendant Figueroa's or bifurcating the trial so as to

isolate the case against him.

Tejeda also attacks his sentence on the grounds that the

district court erroneously relied on the Guidelines applicable to

crack cocaine offenses and that the sentence was unreasonable.

Acknowledging the able advocacy on both sides, we affirm

the conviction and sentence.

I.

The facts in evidence at the trial fairly establish the

following.

From January 2003 through March 2004, Tejeda supplied

crack cocaine to a drug distribution ring operating in Cape Cod,

Massachusetts. Tejeda was based in New York; his address,

ironically, was 1234 Boston Road, in the Bronx. The Cape Cod ring

was headed by Manuel Mendes, a co-defendant, who operated the ring

while imprisoned at the Plymouth County House of Correction. That

imprisonment limited Mendes in his mobility and in his command

operations, but it did not stop him. Mendes operated the drug ring

by giving instructions to co-defendant Figueroa, and sometimes to

co-defendant Alves, both of whom he was permitted to telephone.

Figueroa, in turn, contacted Tejeda and the other conspirators.

On Mendes' instructions, testifying co-conspirator Amanda

Eldridge drove to New York in January 2003, along with Carmen

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Figueroa and Desiree Alves, to pick up crack from Tejeda. Eldridge

already knew Tejeda from prior drug transactions. She identified

Tejeda in court and had done so in an earlier photo array.

Eldridge testified that in New York she met with Tejeda alone in a

red van, picked up the drugs, and returned to Cape Cod. Eldridge's

testimony was corroborated by Alves, who testified that these drug

trips to New York took place about every two weeks.

Eldridge testified that, under Mendes' direction, she

made the trip to New York to pick up drugs from Tejeda every week

or so for a four-month period. Eldridge then drove back to Cape

Cod and gave the drugs to either Alves or Figueroa. Each time,

Tejeda gave Eldridge disk-shaped packages containing crack cocaine.

Eldridge also identified Tejeda's voice in a call recorded by the

government. The recording captured Tejeda and Figueroa arranging

a drug transaction for February 17, 2004 in New York.

The February 17, 2004 transaction went off as planned, as

was established by the testimony of Alves and two drug enforcement

officers who witnessed the event. Co-defendant Christopher Custer

was the courier this time. Alves did not go on the trip, but she

did give Custer the money to purchase the drugs the night before,

and she received the drugs at her home in Yarmouth from Custer when

he returned from his successful trip to New York.

The DEA had established surveillance over Tejeda's home

in the Bronx and observed Custer's arrival and actions on February

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17. Tejeda left his home and entered the red van. A short while

later, Custer arrived, parked behind the van, and entered the van.

Photographs of Tejeda at the scene of the February 17 deal were

admitted into evidence at trial. Within approximately five

minutes, Custer got back into his car and left. He was tracked by

police as he drove back to Cape Cod and was seen entering Alves'

home with a black bag and emerging without it.

The police made arrests immediately after observing

another drug deal, this one on March 16, 2004. Custer, after again

obtaining money on Cape Cod to pay for the crack, went to New York.

Agents saw Tejeda leave the Boston Road address in the Bronx.

Tejeda then got in a car, and police tracked the car to Manhattan.

In Manhattan, an agent observed Custer on the same street as the

car carrying Tejeda. A short time later, after losing sight of

Custer, the agent saw Tejeda get out of the front passenger seat of

the car, and Custer get out of the back passenger seat and into the

front passenger seat of the car. The police thereafter stopped the

car; in it were two disk-like objects, which later tested positive

for cocaine base. That evening Tejeda was arrested.

The government's case rested primarily on this evidence,

and not on the testimony of the non-pleading co-defendant,

Figueroa.

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 II. Trial Error Claims

A. The Throat-Slitting Gesture and Fair Trial Rights

1. Facts And Procedural History

On the morning of the third day of trial, Friday, May 6,

2005, the government's witness was Lt. Balcom. During questioning,

Lt. Balcom indicated that on one occasion he had observed some of

the individuals in the courtroom in the red van. At the

prosecutor's request, Lt. Balcom pointed out these people in the

courtroom.

During the morning break, a juror reported privately to

the court that she and another juror had seen one of the

individuals identified by Lt. Balcom make a throat-slitting gesture

on the second day of trial, Wednesday, May 4. After the break and

outside of the presence of the jury, the court inquired and was

told by defense counsel that the man in question was Tejeda's

grandfather. The jury was never informed of this fact.

The court reported to counsel, outside the presence of

the jury, that a juror had stated that she had observed Tejeda's

grandfather making a throat-slitting gesture. The court then

ordered the gesturer and his wife to leave the courthouse and

barred them from the courthouse and the surrounding vicinity. At

least some members of the jury were later informed of the court's

order. On the record, the court described the man barred from the

courtroom as an "obviously frail appearing, old man."

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 Tejeda and Figueroa both moved for mistrial. When the

court discussed holding voir dire of the two jurors who reportedly

had seen the gesture, Tejeda's counsel expressed concern that the

proposed voir dire would only heighten the issue for the jury.

Before starting the trial again that Friday, the court

said to the jurors:

A matter has been conveyed to . . . me and I
have taken care of it completely. Put it out
of your mind. It has nothing to do with this
case. Have in mind, while the report is fully
appropriate, indeed we want such a report, do
not discuss the case among yourselves, the
case now, in the jury room.

Tejeda did not object to the instruction, and the trial continued

for the day. Later, several of the jurors, on query, said that the

jury had complied with this instruction. Assuming that to be true,

any discussion amongst the jurors occurred before the court dealt

with the report of the gesture.

On Sunday, May 8, Tejeda submitted a written mistrial

motion. On Monday, May 9, the court denied the motion but told the

parties it would grant their request to voir dire the juror who had

reported the gesture, Juror 11.

The court then individually questioned Juror 11. She

said that she was concerned about the gesture but did not report it

on the day she saw it. It was only after she heard the testimony

of Lt. Balcom identifying the spectator as having been at the red

van that she started to feel uncomfortable about what she had seen

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the spectator do two days earlier. After hearing Lt. Balcom's

testimony on Friday morning, she reported the gesture to several of

the other jurors, some of whom told her she should disclose it to

the court, and so she did. The court had earlier instructed the

jurors not to discuss the case.

When asked whether she had linked the individual making

the gesture to any particular party in the case, Juror 11 answered

that she didn't know whether the older gentleman and the lady who

had been sitting with him had anything to do with a particular

person or side. The juror stated that all she knew was that Lt.

Balcom had testified to seeing one of them in the red van. While

she recognized the public nature of the courtroom setting, she was

concerned that people in the courtroom could know the names of the

jurors. The court asked whether she could put the incident out of

her mind when evaluating the case and be fair to all parties. She

answered affirmatively, and the court, observing her, found her to

be forthcoming. Tejeda again moved for mistrial.

The court then questioned Juror 6, who also had seen the

gesture. Juror 6 described the gesture as odd and a strange thing

to do in the middle of a court proceeding but did not think there

was anything to it. She said that it was unclear to her toward

whom the gesture was directed. Juror 6, like Juror 11, answered in

the affirmative as to her ability to be fair and impartial. The

court then denied the motion for mistrial.

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 At the request of Tejeda's counsel, on the fifth day of

trial, Tuesday, May 10, 2005, the court conducted a voir dire of

the remaining jurors. None of the other jurors had seen the

incident; all but one said that they had heard of it from Jurors 11

and/or 6. The jurors reported that they did not discuss the

incident other than on the Friday morning before it was reported.

Each juror was asked whether he or she could be fair and

impartial, and every one responded in the affirmative. While

several of the jurors indicated that they thought the gesture was

inappropriate, no juror expressed fear for his or her safety. Two

jurors reported that the gesture had been unsettling or

disconcerting for the jurors who had seen it. One juror stated

that the reported gesture put pressure on the jury, but that the

remedial action taken by the court had been appropriate. Another

juror stated that there could be safety concerns, but after hearing

of the court's order barring the gesturer from the courthouse, she

stated that she was satisfied with her own safety. One juror

reported that he knew nothing of the gesture.

Following the voir dire of the entire jury, Tejeda

renewed his motion for a mistrial and also requested that the jury

foreperson, Juror 11, be deemed an alternate so she would not

participate in the jury deliberation. These motions were

ultimately denied.

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 The jury returned a verdict of conviction. Thereafter,

Tejeda filed a motion for new trial based on, inter alia, the

throat-slitting incident. At that time, Tejeda did not argue that

the purported error was a structural one, or that the court was

required to apply a presumption of prejudice to the gesture. The

court denied the new trial motion.

2. Appropriate Analytical Framework

a. Structural Error

Tejeda argues that it is clear that the jury here was not

impartial, despite the trial judge's finding to the contrary and

the jurors' individual declarations that the incident did not

render any of them unable to remain impartial in reaching a

verdict.

Tejeda leaps from this purported factual certainty to an

argument, presented for the first time on appeal, that this issue

must be analyzed as structural error. Tejeda would like this to be

so because in structural error cases the defendant is entitled to

automatic reversal. We reject Tejeda's argument.

Structural error analysis has been constricted in its use

to a limited category of claimed errors, none of which fits this

case. The Supreme Court has held that it is structural error for

a criminal defendant to be tried before a judge who has a financial

interest in convicting him. Tumey v. Ohio, 273 U.S. 510, 523, 535

(1927). Tejeda infers from Tumey that his claim that a juror is

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biased must also be analyzed as a structural error. This is not a

situation in which one or more jurors has a financial interest in

convicting the defendant. We reject Tejeda's argument. The law is

clear both that this is not the stuff of structural error and that

Tejeda's jury bias claim is subject to a different standard of

review. On review, the appellate court asks whether the trial

court abused its discretion in denying a mistrial. That standard

gives deference to the trial judge, who is in the best position to

evaluate the matter.

Mere error in the trial process itself is not structural

error. United States v. Gonzalez-Lopez, 126 S. Ct. 2557, 2563-64

(2006). Structural errors are reserved for cases where criminal

defendants are denied basic protections which "necessarily render

a trial fundamentally unfair" such that "no criminal punishment may

be regarded as fundamentally fair." Neder v. United States, 527

U.S. 1, 8-9 (1999) (quoting Rose v. Clark, 478 U.S. 570, 577-78

(1986)) (internal quotation marks omitted). Tejeda's claim of

juror bias is not within this very limited class of cases. See

United States v. Mackey, 114 F.3d 470, 474 (4th Cir. 1997) (juror

bias and misconduct claims are not structural errors).1

1
As the Ninth Circuit has noted, it would be inconsistent
with the Supreme Court's decision in Remmer v. United States, 347
U.S. 227 (1954), discussed below, to apply structural error review
to these sorts of jury bias issues. See United States v. Dutkel,
192 F.3d 893, 899 n.4 (9th Cir. 1999).

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 b. The Remmer Presumption of Prejudice

On appeal, Tejeda also argues for the first time2 that he

is entitled to a presumption of prejudice under Remmer v. United

States, 347 U.S. 227 (1954). We hold that the Remmer presumption

does not apply here.

In Remmer, the defendant learned after his conviction

that a third party had attempted to bribe a juror to get a verdict

favorable to the defendant, and he moved for a new trial. Id. at

228. The court had not informed defense counsel of the bribe, but

had initiated an investigation of the bribe and had held an ex

parte meeting with the prosecution. Id. The defendant's motion

for new trial was denied. Id. at 229. The Supreme Court held that

Remmer was not entitled to an automatic reversal, but rather to a

hearing before the trial court, and that the jury tampering would

be presumed to be prejudicial. Id. at 229-30.

There is an ongoing debate in the circuits about the

limits on and the ongoing vitality of the presumption of prejudice

rule announced in Remmer. Compare United States v. Pennell, 737

F.2d 521, 532-33 (6th Cir. 1984) (presumption of prejudice no

longer exists), with United States v. Sylvester, 143 F.3d 923, 934

(5th Cir. 1998) (proper inquiry is whether likelihood of prejudice

is high enough to assign to the government the burden of proving

2
Tejeda claims that he made this argument below, but we
are unable to find support for that assertion in the record.

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harmlessness), United States v. Williams-Davis, 90 F.3d 490, 497

(D.C. Cir. 1996) (same), United States v. Lloyd, 269 F.3d 228, 238

(3d Cir. 2001) (presumption applies "when the extraneous

information is of a considerably serious nature," such as "when a

juror is directly contacted by third-parties"), United States v.

Dutkel, 192 F.3d 893, 897 (9th Cir. 1999) ("[A] presumption of

prejudice arises if a juror was subjected to coercion or bribery,

and if this intrusion may have affected the juror in the exercise

of his judgment."), United States v. Scull, 321 F.3d 1270, 1280

(10th Cir. 2003) (prejudice presumed "[w]hen members of a jury are

exposed to extraneous information about a matter pending before

[them]"), and United States v. Greer, 285 F.3d 158, 173 (2d Cir.

2000) (similar). As we discussed in United States v. Bradshaw, 281

F.3d 278, 287 (1st Cir. 2002), two later Supreme Court cases,

United States v. Olano, 507 U.S. 725, 737-39 (1993), and Smith v.

Phillips, 455 U.S. 209, 215-17 (1982), narrowed the broad language

in Remmer.

This court has already rejected defendant's argument that

the Remmer presumption applies to all claims of juror bias

resulting from extraneous contacts. See, e.g., Bradshaw, 281 F.3d

at 288-89; United States v. Gomes, 177 F.3d 76, 82-83 (1st Cir.

1999); United States v. Boylan, 898 F.2d 230, 260-62 (1st Cir.

1990).

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 We employed the presumption of prejudice in United States

v. Gaston-Brito, 64 F.3d 11 (1st Cir. 1995), where a trial court

summarily denied, without conducting any inquiry, a motion for

mistrial made before the verdict. Id. at 13. We did so in the

context of holding that a trial court is obligated to "conduct a

sufficient inquiry to determine whether the communication was

harmless." Id. (quoting United States v. O'Brien, 972 F.2d 12, 14

(1st Cir. 1992)) (internal quotation marks omitted). Tejeda relies

on Gaston-Brito to argue that given "the jurors' expressions of

fear and concern . . . , it [was] error to find that . . . Tejeda

was not prejudiced by the throat-slitting gesture."

Gaston-Brito is inapposite. In Gaston-Brito, a

cooperating witness was asked to identify the person who had

threatened to kill his daughter if his wife did not turn over drug

proceeds. A case agent seated at the prosecution table pointed to

the defense table, possibly indicating to the jury that the

defendants had made the threat, although no evidence established

that. Id. at 12. The gesture at issue here is of a completely

different nature.

There are other distinctions. As Gaston-Brito noted, the

government created the problem there when a case agent for the

prosecution made an inappropriate gesture conveying substantive

evidence. Id. at 13. Since the jury could well think that the

agent had inside information, there was a risk the jurors would

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consider the information during deliberations. Id. The court in

Gaston-Brito said it was applying a heightened standard when the

prosecution was responsible for improper ex parte conduct.3 Id.

Here, the gesture did not come from the prosecution and was not an

effort to put evidence in front of the jury. We add that there are

different considerations at play when a defendant attempts to

vacate a conviction, in the face of overwhelming evidence of guilt,

on the basis that someone associated with the defense made an

improper gesture to the jury. For example, we would not want to

create an incentive for such gesturing by individuals associated

with defendants.

3. Merits Analysis

Our usual standard of review once the trial judge has

made an appropriate inquiry, and the one that we utilize here, is

an abuse of discretion standard, which recognizes that the district

court "has wide discretion in deciding how to handle and how to

respond to allegations of juror bias and misconduct that arise

during a trial." United States v. Rodríguez-Ortiz, 455 F.3d 18, 23

(1st Cir. 2006); see also United States v. Mikutowicz, 365 F.3d 65,

74 (1st Cir. 2004); Bradshaw, 281 F.3d at 286-87. We review the

3
Similarly, in O'Brien, we applied a presumption of
prejudice when a police officer who had been summoned to testify on
behalf of the government (but who had not yet testified) engaged in
conversation with three jurors in the hallway outside the courtroom
during a recess. 972 F.2d at 13.

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district court's factual findings for clear error. Bradshaw, 281

F.3d at 291.

Where a colorable claim of jury taint surfaces before

jury deliberations occur, our law describes the sequence of steps

a trial judge should take. See id. at 289. The judge should

investigate the allegation promptly, addressing whether the taint-

producing event occurred, and if so, assessing the magnitude and

extent of any prejudice caused. Id. The trial court has wide

discretion in how it goes about this inquiry. Id. at 290. The

district court, if faced with the issue initially post-verdict, may

convene an evidentiary hearing, but it is not obligated to do so.

Boylan, 898 F.2d at 258.

If the court determines that there is a taint-producing

event and a significant potential for prejudice, the trial court

should then examine whether prophylactic measures will alleviate

the prejudice (and if so, take them), or whether the threat can

otherwise be dispelled or disproved. Bradshaw, 281 F.3d at 289.

The court may determine that no curative measures will suffice and

grant a timely motion for a mistrial. Id.

Here, the court followed every step in the procedure.

There is no realistic objection to the process it used. Rather,

Tejeda's attack is on the court's conclusion that any potential

prejudice had been adequately addressed. The court did not apply

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an incorrect legal standard, so we review its conclusion for abuse

of discretion.

This case involves (1) a risk of a perception by a juror

of an implicit threat from someone who might, in the juror's view,

be associated with the defendant; and (2) the risk that this

"threat" might influence the juror's ability to impartially

evaluate the evidence. These risks are weighed against the

individual jurors' own statements that they were not so influenced

and the trial judge's findings of fact that the jurors could fairly

and impartially reach a verdict.

The risks in this case are considerably weaker than those

posed by the facts in Rodríguez-Ortiz, where we upheld a district

court's denial of mistrial. 455 F.3d at 23-24. There, a juror

reported he had received an explicit death threat related to the

case. Id. at 24. On inquiry, the juror said he could remain

impartial, and the court concluded he could do so. Id. Other

circuits have likewise affirmed the denial of a mistrial when a

juror was threatened but assured the court that he could remain

impartial in deciding the case. See, e.g., United States v.

Simmons, No. 99-50381, 2000 WL 429704, at *1-2 (9th Cir. Apr. 20,

2000) (unpublished table decision) (mem.) (affirming denial of

mistrial when spectator made gestures during closing arguments that

made some jurors feel threatened); Leisher v. Conrad, 41 F.3d 753,

754-55 (D.C. Cir. 1994) (affirming denial of mistrial when two

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jurors misinterpreted as menacing a gesture made by defendant

outside of courtroom); United States v. Garner, No. 90-5613, 1991

WL 150788, at *2, 3 (6th Cir. Aug. 6, 1991) (unpublished table

decision) (per curiam) (affirming denial of mistrial when juror was

threatened by men presumed to be affiliated with defendant who made

noise like a gunshot outside the courtroom); United States v.

Zelinka, 862 F.2d 92, 93, 94-96 (6th Cir. 1988) (affirming denial

of mistrial when spectator who appeared to be associated with

defendant made statement that it would be too bad if the elevator

the jurors were boarding should crash, causing fear on the part of

some of the jurors).

Tejeda argues that more than a single juror is involved,

which increases the risk of taint. This, he says, necessarily

requires a different result from that reached in Rodríguez-Ortiz.

It does not. The implicit threat, while serious, was of a

different nature than the direct threat in Rodríguez-Ortiz.

Further, it is unclear here to whom the gesture was intended, and

here there was a possible, but not direct, association between the

threat and the case.

Importantly, the district court did not ignore the risk

that one or more of the jurors could perceive this gesture as a

threat or that a threat might impair impartiality. First, the

court took immediate remedial action. The court had the spectator

who was the source of the "threat" removed from the courtroom and

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informed the jurors not to be concerned. The elderly spectator was

no longer present when the evidence connecting the red van to the

defendant became stronger at trial, and at least some of the jurors

were informed that the spectator was not permitted to be in the

vicinity of the courthouse. Second, the court queried each juror

about whether the throat-slitting gesture would render him or her

unable to impartially evaluate the evidence. The court observed

the demeanor of each juror and concluded that each could be

impartial.

Nor did the court leave the incident for further

conversation and musings among the jurors. The court instructed

them not to discuss it, and, those who were later questioned said

the jurors had complied with that instruction. Normally, if jurors

say they have followed instructions, their statements are credited.

Cf. Penry v. Johnson, 532 U.S. 782, 799 (2001); Boylan, 898 F.2d at

263.4

There are, of course, extreme cases in which jurors'

responses will not be credited. See Bruton v. United States, 391

U.S. 123, 135-36 (1968) ("[T]here are some contexts in which the

4
Similarly, where the claim is that jurors have been
tainted by exposure to improperly admitted inflammatory evidence,
our rule is that jurors are presumed to properly follow curative
instructions. See United States v. Sepulveda, 15 F.3d 1161, 1185
(1st Cir. 1993). That presumption is overcome only by a showing
that it is probable that (1) responsible jurors will be unable to
disregard the evidence, and (2) the evidence likely will have a
seriously prejudicial effect on the defendant. Bradshaw, 281 F.3d
at 285.

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risk that the jury will not, or cannot, follow instructions is so

great, and the consequences of failure so vital to the defendant,

that the practical and human limitations of the jury system cannot

be ignored. Such a context is presented here, where the powerfully

incriminating extrajudicial statements of a codefendant, who stands

accused side-by-side with the defendant, are deliberately spread

before the jury in a joint trial." (citations omitted)). This is

the argument that Tejeda makes -- that the incident was so strongly

and indelibly harmful that no instruction and no voir dire could

cure it. Tejeda adds that the jurors' voir dire responses

demonstrated that they would not be able to disregard the gesture

in reaching a decision in the case. We disagree for the reasons

stated above.

The district court did not abuse its discretion in its

handling of the throat-slitting gesture. Rather, it responded

sensitively and correctly.

B. Severance and Bifurcation

Appellate review of trial court decisions to sever trials

of criminal co-defendants is for manifest abuse of discretion.

United States v. DeLeon, 187 F.3d 60, 63 (1st Cir. 1999); Boylan,

898 F.2d at 246. Ordinarily, criminal co-defendants are to be

tried together. United States v. Houle, 237 F.3d 71, 75-76 (1st

Cir. 2001). This rule has particular resonance in drug conspiracy

cases, where multiple defendants often share a single indictment.

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See United States v. Soto-Beníquez, 356 F.3d 1, 29 (1st Cir. 2003).

Tejeda bears the burden of making "a strong showing of prejudice"

in order to gain a new trial. Boylan, 898 F.2d at 246 (quoting

United States v. Porter, 764 F.2d 1, 12 (1st Cir. 1985)) (internal

quotation marks omitted).

Tejeda twice moved to sever his trial from that of his

co-defendants. He did so as to all co-defendants by motion before

trial. Later, on the first day of trial, he orally moved to sever

his trial from that of co-defendant Figueroa, after he learned that

Figueroa would testify and present a battered woman defense as to

her relationship with Mendes.5 Her testimony would be that Mendes

regularly beat her. Her proffer indicated that she would not

implicate Tejeda in the abuse she suffered.

On appeal, the only issue has to do with the motions to

sever the case against Figueroa. Tejeda's severance motion argued

that it was likely that Figueroa would take the stand and admit her

involvement in the conspiracy, but present a case of duress because

she had been under the influence of Mendes, who had pled guilty.

The court denied the motion for severance saying Tejeda could

cross-examine Figueroa, and that no inconsistent defenses were

involved.

5
Figueroa had informed the court and counsel of this
defense when she moved on April 27, 2005 to continue the trial so
she could prepare such a duress defense. The court denied the
motion for a continuance.

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 On May 12, 2005, Tejeda proposed to the trial court that

it bifurcate the trial, differentiating the evidence applicable to

his case and to Figueroa's. Specifically, Tejeda proposed that he

put on his case, the prosecution put on its rebuttal, then the jury

decide on Tejeda's guilt or innocence alone. Thereafter, Figueroa

would present her defense, the prosecution its rebuttal, and the

jury would then render its verdict as to Figueroa. The court

denied Tejeda's motion. The motion was renewed at the close of the

prosecution's case-in-chief and again denied.

The prosecution questions whether the severance motion on

the day of trial and the bifurcation motion6 were timely. See Fed.

R. Crim. P. 12(b)(3)(D) (severance motions must be made before

trial). We bypass the question and rule on the merits.

Severance should be granted where "defenses are so

irreconcilable as to involve fundamental disagreement over core and

basic facts." United States v. Peña-Lora, 225 F.3d 17, 34 (1st

Cir. 2000) (quoting United States v. Paradis, 802 F.2d 553, 561

(1st Cir. 1986) (emphases added)) (internal quotation marks

omitted). But where there is merely some dissonance, where the

defenses are just "somewhat antagonistic," we will usually not

reverse a trial court's denial of severance. United States v.

Serafino, 281 F.3d 327, 329 (1st Cir. 2002). Tejeda relies on

6
Although unusual, bifurcation has been used. See United
States v. Zarnes, 33 F.3d 1454, 1471-72 (7th Cir. 1994); United
States v. Joshi, 896 F.2d 1303, 1306-09 (11th Cir. 1990).

-22-
United States v. Johnson, 478 F.2d 1129 (5th Cir. 1973), to argue

that severance was necessary in this case. But in Johnson, the co-

defendants' theories of defense were truly antagonistic. While

Johnson defended on the basis that he was not present when the

charged crime was committed, his co-defendant made a confession

explicitly and necessarily incriminating Johnson and defended only

on the basis that he lacked the necessary mens rea. Id. at 1131-

32.

Here, by contrast, there was no true antagonism of

defenses. Tejeda's defense explicitly acknowledged there was a

drug conspiracy; he simply argued the prosecution could not prove

beyond a reasonable doubt that he was the New York source of drugs

for the conspiracy. Thus, Figueroa's defense that there was a drug

conspiracy, but that she had acted under duress, was not an

antagonistic defense at all. Her defense did not in any way hinge

on Tejeda's participation in the conspiracy. Indeed, even if the

jury accepted her duress defense it could either accept or reject

Tejeda's defense. Severance is not required every time a duress

defense is asserted by one defendant. Peña-Lora, 225 F.3d at 34;

United States v. Arias-Villaneuva, 998 F.2d 1491, 1507 (9th Cir.

1993), overruled on other grounds by United States v. Jimenez-

Ortega, 472 F.3d 1102, 1102-04 (9th Cir. 2007).

Even if Tejeda had shown that severance from Figueroa was

appropriate in this drug conspiracy case, it was his burden to show

-23-
prejudice. Boylan, 898 F.2d at 246; Porter, 764 F.2d at 12.

"[P]rejudice means more than just a better chance of acquittal at

a separate trial." Boylan, 898 F.2d at 246 (quoting United States

v. Martinez, 479 F.2d 824, 828 (1st Cir. 1973)) (internal quotation

marks omitted). "Garden variety" prejudice, which always exists

when more than one defendant or offense are tried together, does

not warrant a new trial. Id. Tejeda has not met his burden here.

Tejeda's real argument is not one of antagonism. It is

that Figueroa's testimony about being regularly beaten by her

boyfriend Mendes, the head of the conspiracy, would spill over to

Tejeda, who was accused of conspiring with Mendes in drug

distribution. This is a sort of argument that "you are known by

the friends you keep," and bad friends will taint you in the jury's

eyes. It is almost inherent in drug conspiracy cases that a co-

conspirator may have engaged in other types of blameworthy conduct.

That is not enough to warrant severance of co-defendants' trials.

While Mendes' treatment of Figueroa may have been more shocking

than run-of-the-mill blameworthy conduct from drug co-conspirators,

Tejeda's role in the conspiracy -- as a geographically-removed

supplier several states distant -- lessened the risk that the

jurors might ascribe Mendes' conduct to him. Moreover, the trial

judge instructed the jury that evidence of Mendes' mistreatment of

Figueroa was not to be considered in the case against Tejeda.

-24-
 Figueroa did identify Tejeda in court as the drug ring's

New York source of supply. She also testified about numerous trips

to New York to pick up drugs. But all of this testimony, including

the identification, was cumulative of Eldridge's testimony. There

was more than sufficient evidence against Tejeda without Figueroa's

identification. In any event, Figueroa's testimony regarding

Tejeda was admissible against Tejeda regardless of whether the

trials were severed. Further, Tejeda was permitted to cross-

examine Figueroa at trial, minimizing any thought of misconduct by

association.

The district court did not abuse its discretion in

denying the severance motion. Nor was there any abuse of

discretion in the denial of the bifurcation procedure. Such a

procedure risked confusion of the jury and unwarranted singling out

of the case against Tejeda.

Given that we have found no error in the district court's

handling of the throat-slitting gesture or the severance and

bifurcation motions, Tejeda's cumulative error claim is without

merit.

III. Sentencing Claims

A. Application of Crack Cocaine Guidelines

We review de novo sentencing issues involving questions

of law. United States v. McCarthy, 77 F.3d 522, 535 (1st Cir.

1996).

-25-
 The government argues that Tejeda has forfeited his claim

that the district court erred in applying the crack cocaine

Sentencing Guidelines, and that review therefore should be only for

plain error. See Fed. R. Crim. P. 52(b); see also Olano, 507 U.S.

at 732-35. The government notes that Tejeda failed to object to

the district court's limiting of the verdict slip to refer only to

"cocaine base" and not "crack." Nor did he object to the district

court's statement at the charge conference that it would decide the

crack issue in a jury-waived proceeding, or the district court's

instruction to the jury, which equated crack with cocaine base.

The prosecution argues that Tejeda's presentencing motion to

preclude application of the crack Guidelines was insufficient to

preserve the claim because it was at that time too late to present

the issue to the jury. See United States v. Pacheco, 434 F.3d 106,

115 (1st Cir. 2006).

We bypass the question of forfeiture because even if

Tejeda preserved his claim, it fails on the merits. As Tejeda

conceded before the district court, our decision in United States

v. Medina, 427 F.3d 88 (1st Cir. 2005), forecloses any argument

that as a general matter the government must prove to the jury

beyond a reasonable doubt that the cocaine base at issue is crack

cocaine. In Medina, the defendant was convicted of, inter alia,

possession with intent to distribute over fifty grams of cocaine

base. Id. at 90. On appeal, Medina argued that the trial court

-26-
had erred in not instructing the jury that the government was

required to prove that the cocaine base he possessed was crack

cocaine.7 Id. at 92. This court held that "the government is not

required to prove that the substance involved in a given case is

crack in order to secure a conviction under" 21 U.S.C. § 841, the

statute specifying the substantive offense that was the object of

the conspiracy for which Tejeda was convicted. Id. The fact that

the cocaine base was crack was "only relevant to the court at

sentencing." Id. at 92 n.3. Moreover, in United States v.

O'Brien, 435 F.3d 36 (1st Cir. 2006), we held that, as long as the

statutory maximum is not affected, a sentencing judge is permitted

to determine by a preponderance of the evidence the factual basis

for a sentencing enhancement. Id. at 41. Such was the case here.

There was no error in the district court's determining that the

cocaine base at issue in this case was crack.8

Tejeda argues that the sentencing court was not permitted

to make the crack determination in his case because it was the law

of the case that all sentencing enhancements be proved to the jury

beyond a reasonable doubt. This argument is without merit. At

7
The issue in Medina was different. Medina argued that
the jury instruction was error because the statute at issue, 21
U.S.C. § 841, regulated only possession of crack, not cocaine base
more generally. 427 F.3d at 92.
8
Tejeda does not dispute that there was sufficient
evidence presented at trial to conclude that the drugs at issue
were crack.

-27-
times the court did state that it would require the government to

prove sentencing enhancements to the jury beyond a reasonable

doubt; but it also determined that whether the cocaine base at

issue was crack cocaine would be decided in a jury-waived

proceeding, and it further decided at sentencing that it was

permitted to make the determination that the cocaine base was

crack. The court was not prohibited from revising its position on

proof of sentencing enhancements to the jury. See Harlow v.

Children's Hosp., 432 F.3d 50, 55 (1st Cir. 2005) ("[L]aw of the

case permits a lower court to review prior interlocutory orders as

long as that review is not an abuse of discretion."); Fiori v.

Truck Drivers, Local 170, 354 F.3d 84, 90 (1st Cir. 2004) (stating

that law of the case doctrine does not bar the district court from

revising a prior ruling, as long as prejudice does not result).

Tejeda argues that he was prejudiced by the district

court's change of position because (1) the court never conducted a

jury-waived proceeding to determine whether the cocaine base at

issue was crack cocaine and (2) the court had promised this

jury-waived proceeding, and as a result, the trial record, on which

the district court relied in determining that the cocaine base was

crack, was underdeveloped with respect to the crack issue.

Tejeda is correct that the district court repeatedly

stated that the government would not be able to seek a sentencing

enhancement for crack unless it had pled and proved the issue to

-28-
the jury. It is possible that the court's about-face at the

sentencing disposition9 might have constituted "unfair surprise."

See, e.g., United States v. Moody, 903 F.2d 321, 331 (5th Cir.

1990) ("There is also an element of unfair surprise in the court's

belated reversal concerning Bauman's testimony. . . . By reversing

its earlier ruling, . . . the district court was obliged to provide

Moody an opportunity for surrebuttal, assuming of course that the

defense could proffer evidence to parry the expanded government

case.") It would have been better for the court here to have

explicitly informed the parties of its ruling that it could

determine the crack enhancement in the absence of a jury verdict

and allowed the parties to submit factual evidence with regards to

the enhancement.

9
The district court did in fact conduct a jury-waived
proceeding on the crack issue on September 22, 2005. At that
proceeding, Tejeda offered an expert to testify to the difference
between crack and other forms of cocaine base. However, the
parties all agreed that crack was merely one form of cocaine base,
and there was no factual dispute as to whether crack and cocaine
base were one and the same. Tejeda also offered his expert to cast
doubt that the drugs seized on March 16, 2004 from the car in which
Tejeda had been riding were crack. He proffered that his expert
would testify that while the DEA had concluded that a different
drug sample -- seized from co-conspirator Custer's home -- was
crack, the DEA had not concluded that the drugs linked to Tejeda
were crack. This was an inaccurate characterization of the DEA's
conclusions, as the prosecution pointed out. The parties had
stipulated that the DEA had concluded that both tested samples
contained cocaine base. The DEA had made no finding as to whether
either sample contained crack cocaine. As a result, Tejeda's
expert's testimony would not have been informative on any factual
dispute. The district court solicited additional briefs from the
parties and stated that if necessary, it would convene an
evidentiary hearing at some point in the future.

-29-
 The evidence that Tejeda states he would have offered,

however, would not have precluded the court from finding that the

crack Guidelines were applicable. Prior to sentencing, Tejeda

submitted a brief to the district court in which he claimed -- in

a footnote -- as he does now, that the DEA's test results showed

that the drug sample linked to Tejeda had not tested positive for

sodium bicarbonate, a "signature ingredient" of crack. Tejeda did

not purport to have performed any independent tests of the drug

sample connected to him, but rather relied solely on the DEA's

analysis. Tejeda attached to his brief the DEA's work papers and

test results. As a result, at the point it made its determination

that the drugs at issue in the case were crack, the district court

had before it the very results on which Tejeda's expert would have

offered testimony. Moreover, even if Tejeda is correct that the

particular sample tested by the DEA did not contain sodium

bicarbonate, there nonetheless was ample evidence at trial for the

district court to conclude that the drugs involved in the

conspiracy were crack. Three law enforcement officers testified,

based on visual observation, that the drugs seized from the car on

March 16 were crack, and Eldridge and Figueroa both testified that

the drugs regularly purchased from Tejeda were crack. See United

States v. Walters, 904 F.2d 765, 770 (1st Cir. 1990) ("Proof based

on scientific analysis or expert testimony is not required to prove

the illicit nature of a substance, and identification of a

-30-
substance as a drug may be based on the opinion of a knowledgeable

lay person."). The identity of the drugs that Tejeda dealt does

not hinge on this one sample.

As to Tejeda's second argument, it is unpersuasive for

Tejeda to suggest that he would have presented an expert at trial

had he known what would be the nature of the jury-waived

proceeding. Tejeda did attempt to have his expert testify at

trial. In his proffer Tejeda indicated that the expert would

testify about the difference between cocaine base and crack cocaine

and the difficulty of telling the two apart visually. The district

court, however, refused to allow the expert to testify because the

request was not timely,10 and because, the court concluded, the

testimony would confuse the jury. The court did say at the time it

precluded the expert from testifying that it would hear the expert

at the time of sentencing. But this was not the reason that the

expert was precluded from testifying at trial.11

The jury was not required to find that the cocaine base

possessed by Tejeda was crack. The district court did not abuse

its discretion when it revised its position on proof of sentencing

10
Tejeda conceded this in the district court.
11
Tejeda also refers to thwarted attempts to cross-examine
the government's witnesses about the differences between crack and
cocaine base. Tejeda was precluded from questioning government
witnesses about the chemical differences between crack and other
types of cocaine base because the witnesses in question were not
chemists and were not qualified to testify on the subject.

-31-
enhancements. Tejeda was not prejudiced by the district court's

revision of its prior ruling.

Finally, Tejeda argues that the district court's deciding

that the crack cocaine Guidelines applied violated his protection

against double jeopardy and his due process rights. Tejeda

essentially argues that the government failed to prove at trial

that the drugs were crack, and that he should not have been forced

at sentencing to once again mount a defense to such a charge.

There was no error in the district court's application of the crack

cocaine Guidelines, much less a due process violation. Likewise,

double jeopardy principles are inapplicable here. Double jeopardy

concerns arise only when a jury verdict or a trial court's ruling,

"whatever its label, actually represents a resolution, correct or

not, of some or all of the factual elements of the offense

charged." Pacheco, 434 F.3d at 112 (quoting United States v.

Martin Linen Supply Co., 430 U.S. 564, 571 (1977)) (internal

quotation marks omitted). There was no such trial court ruling

here. Whether or not the cocaine base at issue was crack is not a

factual element of the offense charged. Medina, 427 F.3d at 92 &

n.3.

B. Reasonableness of Tejeda's Sentence

Tejeda argues that his sentence is unreasonable as a

matter of law. See United States v. Jiménez-Beltre, 440 F.3d 514,

519 (1st Cir. 2006) (en banc). He argues that the nature and

-32-
circumstances of his offense, his personal history and

characteristics, his potential for rehabilitation, sentences

imposed by other federal courts, and the sentences imposed on his

co-defendants all weigh in favor of his receiving the mandatory

minimum sentence of 120 months. Tejeda's counsel made all of these

arguments to the district court at his sentencing hearing.

The district court explained its reasons for imposing a

twenty-year sentence. It discussed the fact that Tejeda was "the

supplier in a massive [crack] distribution ring" and stated that

"crack cocaine is one of the most addictive, dangerous substances

known to our society." The court stated that its sentence took

rehabilitation into account, although the court did not think

rehabilitation particularly likely,12 and it referred to Tejeda's

family circumstances, concluding that while they were tragic, they

had been caused by Tejeda. The court further stated that

comparison to the average sentence imposed by other courts for the

offense in question was not necessarily instructive since that

average did not account for factors such as drug quantity.

Finally, we note that "[a]lthough a district court may consider

disparities among co-defendants in determining a sentence, [a

12
We disagree with Tejeda's assertion that the district
court did not consider his particular potential for rehabilitation.
The court stated that the sentence did not "emphasize
rehabilitation due to the nature of the offense." We understand
this to mean that given the particulars of Tejeda's offense, not
drug offenses in general, the court did not think rehabilitation
particularly likely.

-33-
defendant's] sentence [is not] unreasonable simply because his

co-defendants agreed to help the government in exchange for reduced

sentences." United States v. Vázquez-Rivera, 470 F.3d 443, 449

(1st Cir. 2006). Tejeda's sentence is not unreasonable.

Tejeda's conviction and sentence are affirmed.

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