United States Court of Appeals
For the First Circuit
No. 05-2275
UNITED STATES OF AMERICA,
Appellee,
v.
ANDY WILLIAMS MANGUAL-GARCIA,
Defendant, Appellant.
No. 05-2414
UNITED STATES OF AMERICA,
Appellee,
v.
GILBERTO VILLANUEVA-RIVERA,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Howard, Circuit Judge,
Selya, Senior Circuit Judge,
and Dyk,* Circuit Judge.
September 18, 2007
Jorge L. Armenteros-Chervoni for appellant Gilberto
Villanueva-Rivera.
*
Of the Federal Circuit, sitting by designation.
Rachel Brill for appellant Andy Williams Mangual-Garcia.
Julie Mosley, Assistant United States Attorney, with whom,
Rosa Emilia Rodriguez-Velez, United States Attorney, Nelson Pérez-
Sosa, Assistant United States Attorney, and Thomas F. Klumper,
Assistant United States Attorney, were on brief, for the appellee.
DYK, Circuit Judge. Andy Williams Mangual-Garcia
(“Mangual-Garcia”) and Gilberto Villanueva-Rivera (“Villanueva-
Rivera”) appeal from their convictions for (1) conspiracy to
possess with the intent to distribute in excess of five kilograms
of cocaine in violation of 21 U.S.C. § 841 and (2) possession with
intent to distribute approximately five kilograms of cocaine in
violation of 21 U.S.C. § 841(a)(1). Finding no reversible error,
we affirm the convictions. Additionally, although the district
court’s failure to articulate its reason for choosing a particular
sentence within a guideline range that exceeded twenty-four months
violated 18 U.S.C. § 3553(c)(1), we find no plain error that would
require resentencing.
BACKGROUND
We describe the evidence in the light most favorable to
the government. See, e.g., United States v. Sampson, 486 F.3d 13,
47 (1st Cir. 2007). From 2000-2002, appellants Mangual-Garcia and
Villanueva-Rivera, along with others, allegedly shipped cocaine
from Puerto Rico to the mainland United States on commercial
airline flights departing from either San Juan or Aguadilla
airports. Luis Escobar-Lopez (“Escobar-Lopez”), an employee of the
catering company that serviced airplanes at Puerto Rican airports
and a member of the conspiracy, agreed to cooperate with law
enforcement officers. He arranged to have drugs shipped on a
commercial flight leaving Aguadilla airport on December 22, 2002,
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and taped conversations among the alleged conspirators, including
the appellants, regarding this shipment.
On February 23, 2004, a grand jury indicted Mangual-
Garcia and Villanueva-Rivera, along with Irvin Caraballo-Torres
(“Caraballo-Torres”) and Carlos Escobar-Rivera (“Escobar-Rivera”).
During the course of a 22-day trial, the government introduced the
testimony of cooperating witness Escobar-Lopez regarding the
alleged conspiracy, including testimony that both Mangual-Garcia
and Villanueva-Rivera were part of the December 22 conspiracy. The
government also introduced tape recordings Escobar-Lopez had made
with the alleged conspirators. The taped conversations, which
occurred between December 10 and December 24, 2002, concerned the
planning of the December 22 shipment as well as the actions of the
alleged conspirators after the shipment was lost.
In addition, the government showed video recordings of
Villanueva-Rivera’s delivering silver or gray wrapped packages to
Caraballo-Torres on December 21 and Caraballo-Torres’ entering the
plane on December 22. Finally, the government introduced evidence
of five drug packages that it seized from the rear lavatory of the
airplane on December 22. The appearance of these packages matched
the appearance of the packages Villanueva-Rivera delivered on the
21st.
The jury convicted Mangual-Garcia and Villanueva-Rivera
on April 14, 2005. Mangual-Garcia was sentenced to 364 months in
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jail and Villanueva-Rivera to 192 months. In sentencing the
defendants, the district court never explained why it chose the
specific sentences within the guidelines range, other than to
recite that it had considered all of the factors that it was
required to consider under 18 U.S.C. § 3553(a).
Mangual-Garcia and Villanueva-Rivera timely appealed, and
we have jurisdiction pursuant to 28 U.S.C. § 1291.
DISCUSSION
I. Introduction of Evidence of a Separate Conspiracy
The appellants’ principal argument on appeal is that the
district court should have granted their motion for a mistrial
based on the prosecutor’s misconduct in introducing evidence of a
separate December 8 conspiracy. It is undisputed that five of the
government’s eleven witnesses1 testified about the FBI’s attempt on
December 8, 2002, to seize another shipment of drugs. That attempt
was stymied when the alleged drug traffickers were notified of the
presence of federal agents. In fact, two of the witnesses
testified exclusively about the December 8 events. In the course
of the trial, the government admitted that the events of December
8 involved a different conspiracy, to which the appellants were not
1
At points in their briefs, both the government and
Mangual-Garcia assert that six government witnesses testified about
the December 8 events. However, they then only list five witnesses
who so testified. This error may stem from Mangual-Garcia’s
apparently incorrect assertion below that FBI Special Agent Amado
Vega testified about the December 8 events.
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parties. For present purposes, we will assume that the government
did not advise the defendants of the error until April 6, 2005,
during the jury charge conference after the government had rested.
Then, the government clearly admitted that the December 8 events
involved a “different conspiracy” that did not involve the
appellants. The defendants immediately objected and filed a motion
for a new trial the next day, which the district court denied.
Appellant Mangual-Garcia first argues that a mistrial
should have been granted because the prosecutor’s delayed
disclosure regarding the separate December 8 conspiracy violated
his rights under Brady v. Maryland, 373 U.S. 83 (1963), to access
to exculpatory material. Mangual-Garcia argues that if the
information had been disclosed earlier, he would have been able to
impeach the truthfulness of Escobar-Lopez’s testimony and cast
reasonable doubt on the amount of drugs involved in the charged
conspiracy. It is unclear how further cross-examination would have
benefitted Mangual-Garcia. Mangual-Garcia’s vague assertions that
this evidence could have impeached the cooperating witness, without
explaining why or how, is insufficient to establish that Brady
material was withheld. In any event, Mangual-Garcia admits that he
did not request a continuance or seek to recall any witnesses when
he learned about this evidence before he presented his case-in-
chief. “As a general rule, a defendant who does not request a
continuance will not be heard to complain on appeal that he
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suffered prejudice as a result of late-arriving discovery.” United
States v. Sepulveda, 15 F.3d 1161, 1178 (1st Cir. 1993); see also
United States v. Osorio, 929 F.2d 753, 758 (1st Cir. 1991).
Mangual-Garcia has failed to establish the “manifest abuse of
discretion” required to overturn “the presider’s decision to allow
a criminal case to go forward, notwithstanding delayed disclosure
of material relevant to impeachment of a witness.” Sepulveda, 15
F.3d at 1179.2
Next, both appellants assert that the introduction of the
December 8 evidence constituted prosecutorial misconduct that
warrants a new trial. “[W]e determine the legal question of
whether the prosecutor’s actions constitute misconduct de novo,
[and the question] of whether the alleged misconduct requires a new
trial . . . for abuse of discretion.” United States v. Casas, 425
F.3d 23, 39 (1st Cir. 2005).
We assume, without deciding, that the prosecutor’s
actions constituted misconduct. See United States v. Auch, 187
F.3d 125, 128-29 (1st Cir. 1999) (finding misconduct where a
prosecutor made repeated references to an uncharged armored car
robbery during the prosecution of a different armored car robbery).
However, we conclude that the district court did not abuse its
2
See United States v. Ingraldi, 793 F.2d 408, 411-12 (1st
Cir. 1986) (“[T]he test [for delayed disclosures] is whether
defendant’s counsel was prevented by the delay from using the
disclosed material effectively in preparing and presenting the
defendant’s case.”).
-7-
discretion in determining that a new trial was not warranted. In
determining whether prosecutorial misconduct “so poisoned the well”
as to require a new trial, this circuit considers “(1) whether the
prosecutor’s misconduct was isolated and/or deliberate; (2) whether
the trial court gave a strong and explicit cautionary instruction;
and (3) whether any prejudice surviving the court’s instruction
likely could have affected the outcome of the case.” Id. at 129.
The claimed misconduct in this case was clearly repeated.
However, this is not a close case since the evidence plainly
supported a conviction. Indeed, the appellants do not argue
otherwise, with one exception noted below. Most important, as part
of the jury charge, the district court explicitly, clearly, and
repeatedly instructed the jury
not . . . to consider at all any testimony regarding the
December 8th [events] . . . You are not to make any
connection between that event . . . and the drug
conspiracy charge . . . since the December 8, 2002 events
are not evidence of the conspiracy charge . . . [Y]ou
shall disregard all references by these witnesses to the
December 8 [events].3
3
In full, the court instructed the jury as follows:
The only part [of the five witnesses] testimony that I am
striking has to do with what they testified to about the
December 8, 2002, surveillance in the Aguadilla airport,
December 8, 2002. And this is my instruction to you, Mr.
Foreman and members of the jury: During the presentation
of the government’s case in chief, the following agents,
Task Force Agent Victor Lopez, Special Agent of the FBI,
Miguel Marrero, Task Force Agent Teodoro Lebron and
Special Agent of the FAA, Orlando Gonzalez, as well as
cooperating witness Luis Oscar Escobar Lopez, testified
about an operative [sic] that the FBI conducted on
-8-
During these instructions, the jurors were told twice that the
December 8 events were not part of the charged conspiracy; twice
that the testimony regarding December 8 had been stricken; and
three times that they should not consider the testimony regarding
December 8. We are at a loss as to how the district court, under
these circumstances, could have provided stronger curative
instructions.4
December 8, 2002 at the Rafael Hernandez airport at
Aguadilla. These witnesses described this, the December
8th operative [sic], as an unsuccessful operative [sic]
in which no drugs were seized. During the Court’s formal
charge conference with the attorneys on April 6, 2005, it
came to light that the December 8, 2002, events at the
Aguadilla airport were not part of the conspiracy that is
charged against these defendants in Count 1 of the
indictment. Given this representation by the
government’s counsel, you are instructed not–and I
emphasize not–to consider at all any testimony regarding
the December 8th, 2002, FBI operative [sic] at the
Aguadilla airport. You are not to make any connection
between that event, the surveillance events of December
8, 2002, and the drug conspiracy charge in Count 1 of the
indictment against the four defendants, since the
December 8, 2002, events are not evidence of the
conspiracy charge in Count 1. This evidence was ordered
stricken by the Court; therefore, you shall disregard all
references by these witnesses to the December 8, 2000
[sic] surveillance at the Aguadilla airport.
4
Mangual-Garcia objects to the fact that the district
court did not instruct the jury to disregard photographs of the
airport and airline taken as part of the December 8 operation.
However, since the government used these same photographs, which
were not specific to December 8, in describing the December 22
operation, it was proper for the district court not to instruct the
jury to disregard these exhibits.
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This court has repeatedly held that a strong, explicit,
and thorough curative instruction to disregard improperly admitted
evidence or improper comments by the prosecutor is generally
sufficient to cure any prejudice from prosecutorial misconduct in
that regard. See, e.g., United States v. Cormier, 468 F.3d 63, 74
(1st Cir. 2006) (finding no prejudice where “the court issued
final instructions to the jury that were strong and clear on their
duty to disregard the improper comments” (internal quotation marks
and alterations omitted)); United States v. Boldt, 929 F.2d 35, 41
(1st Cir. 1991) (finding that “a very strong and thorough curative
instruction [to disregard] . . . sufficed to dispel any prejudice
from the [prosecutor’s] improper comment”). This follows from the
fact that “our system of trial by jury is premised on the
assumption that jurors will scrupulously follow the court’s
instructions . . . .” United States v. Owens, 167 F.3d 739, 756
(1st Cir. 1999).
There may be some circumstances in which the improper
evidence introduced by the prosecutor so overwhelms the trial as to
make no instruction sufficient to cure the prejudice. However,
this is not such a case. As noted earlier, the record discloses
significant other evidence that could have been the basis for the
jury’s guilty verdict, and the December 8 evidence was not central
to the government’s theory of the case. In fact, there was no
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specific testimony at trial that linked the appellants to the
December 8 events. We conclude that a new trial was not required.
II. Improper Admission of Co-Conspirator Statements
The appellants argue that the district court improperly
admitted statements made by alleged co-conspirator Vélez-García in
tape recorded telephone conversations with cooperating witness
Escobar-Lopez.
While out-of-court statements offered to prove the truth
of the matter asserted would normally be hearsay, Rule 801(d)(2)(E)
explicitly excepts “a statement by a coconspirator of a party
during the course and in furtherance of the conspiracy” from the
definition of hearsay.
In this circuit, out-of-court statements by an alleged
co-conspirator are only admissible if the district court determines
that “it is more likely than not that the declarant and the
defendant were members of a conspiracy . . . and that the statement
was in furtherance of the conspiracy.” United States v.
Petrozziello, 548 F.2d 20, 23 (1st Cir. 1977). Such a finding is
called a “Petrozziello” determination. The district court must
consider “all of the evidence” in determining whether the
prosecution has shown by a preponderance of the evidence that the
declarant and the defendant were co-conspirators. See United States
v. Murphy, 193 F.3d 1, 7 (1st Cir. 1999). Thus, while the district
court is generally required to make a conditional admissibility
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determination if the defendant objects to the introduction of an
out-of-court statement under Rule 801(d)(2)(E), this circuit
“require[s] the court to delay its final Petrozziello determination
until the close of all evidence.” Earle v. Benoit, 850 F.2d 836,
841 (1st Cir. 1988); United States v. Ciampaglia, 628 F.2d 632, 638
(1st Cir. 1980). If the district court, having conditionally
admitted the statements, later determines that they are
inadmissible, it should strike the statements and give a curative
instruction or, if no instruction would cure the prejudice, declare
a mistrial. Ciampaglia, 628 F.2d at 638.
In this case, the government sought to introduce a tape
recording and transcript of the conversations between Vélez-García
and Escobar-Lopez at trial during the direct examination of Task
Force Agent López. The defendants objected, asserting that Vélez-
García’s statements were inadmissible hearsay because he was acting
as a government informant at the time and therefore was not a co-
conspirator under United States v. Giry, 818 F.2d 120, 126 (1st
Cir. 1987) (“[G]overnment agents do not count as co-conspirators .
. . [T]he government informer is not a true conspirator.”).
On March 7, 2005, the district court issued its
preliminary admissibility ruling, concluding that “[t]he
preponderance of the evidence so far leads us to conclude that Mr.
Vélez-García was a ‘bona fide’ co-conspirator in the conspiracy
charged and not an informant.” In making this ruling, the district
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court relied on: the allegations of the indictment that the
conspiracy lasted from November 2000 to December 2002, an FBI “302
report” of an interview with Escobar-Lopez in which he said Vélez-
García was a member of the conspiracy, the tape recordings
themselves,5 “the testimony up to this moment of task force agent
Victor López,” and an FBI certification letter that listed the
dates that Vélez-García was a cooperating witness as May 16, 2000
through August 16, 2002, and February 11, 2003 through May 7, 2003.
The appellants take issue with the district court’s reliance on
this last piece of evidence, arguing that the author of the
certification letter, FBI Special Agent in Charge Luis Fraticelli,
did not testify at trial and therefore was not subject to cross-
examination, allegedly in violation of the appellants’ Sixth
Amendment right to confront the witnesses against them.
We find no error in the district court’s reliance on the
Fraticelli letter in making its preliminary admissibility
determination. A court may consider “any evidence it wishes,
unhindered by considerations of admissibility,” in making
preliminary admissibility determinations. Bourjaily v. United
States, 483 U.S. 171, 178 (1987); see also Fed. R. Evid. 104(a).
Moreover, since a district court is not required to hold a formal
hearing in making this preliminary determination, as the appellants
5
While the alleged co-conspirator statements alone are
insufficient to establish that the declarant and defendant were co-
conspirators, they may be considered. Sepulveda, 15 F.3d at 1182.
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acknowledge, no violation of the appellants’ right to cross-
examination occurred. See United States v. Campbell, 268 F.3d 1,
4-5 (1st Cir. 2001).
The appellants also appear to complain that the evidence
ultimately introduced at trial did not support admissibility of the
statements. Here, the district court erred in failing to make a
final Petrozziello determination at the close of the evidence. As
noted earlier, “[f]or Petrozziello purposes, the critical juncture
is the close of all the evidence.” United States v. Ortiz, 966 F.2d
707, 715 (1st Cir. 1992). However, although the defendants
objected at the time the statements were introduced, leading to the
preliminary determination, they never renewed their objection at
the close of the evidence nor did they request a final Petrozziello
determination. This court has held that “a defendant’s failure to
object to the omission of such an express trial-end determination
bars him from raising the point on appeal in the absence of plain
error.” Ortiz, 966 F.2d at 715 (quoting United States v. Perkins,
926 F.2d 1271, 1283 (1st Cir. 1991)); see also Campbell, 268 F.3d
at 5-6.
We find no plain error on the record of this case. Even
putting to one side the out of court statements on which the
district court relied in making its preliminary determination,6 the
6
We do not have to reach the question of whether evidence
not presented at trial can be considered as part of the final
Petrozziello determination.
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government presented significant admissible evidence at trial that
Vélez-García was a co-conspirator, not a government informant, at
the time of the tape recordings. FBI agent Marrero explicitly
testified at trial that Vélez-García was a cooperating witness for
the FBI only from May 16, 2000, until August 16, 2002, and again
from February 11, 2003, until April 7, 2003. Similarly, Task Force
Agent López testified during cross-examination by one of the co-
defendant’s counsel that while Vélez-García was a government
informant at other times, he was not a government informant in
December 2002 when he made statements at issue. The evidence
relied on by the appellants only shows that Vélez-García was a
government informant at some point in time, not that he was a
government informant, and therefore not a co-conspirator, when the
tape recordings were made. A new trial is not required.
III. Villanueva-Rivera’s Other Alleged Errors
A. Alleged Napue Violation
Villanueva-Rivera argues that his conviction should be
reversed because the prosecution improperly allowed the cooperating
witness, Escobar-Lopez, to testify falsely and then used that false
testimony in its closing argument. At a sidebar conference on
March 11, 2005, the government made the following explicit
admissions: (1) “the government has no intention of prosecuting
[Escobar-Lopez] for these charges at this time”; (2) “the
government has no intention of pursuing charges . . . [because] he
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cannot be prosecuted based only on his own statements”; and (3) “at
this point in time, at no time has the government had any intention
of prosecuting Mr. Escobar, because without his cooperation, we
would not have been able to proceed with this case.” However, on
March 16, 2005, during cross-examination by a co-defendant’s
counsel as to Escobar-Lopez’s motivation for cooperating, Escobar-
Lopez testified to the contrary, stating that “just like the
defendants here, I’m sitting here testifying without a piece of
paper, and because of my testimony, I could also be put in jail.”
Finally, during closing arguments on April 12, 2005, the prosecutor
said:
[Escobar-Lopez] decided let me save my hide and help, and
maybe I’ll get something out of this for me, maybe I’ll
get rid of that case in Boston. But he also told you
there are no promises, no promises. . . . You don’t have
a plea agreement, you don’t have a cooperation agreement,
you don’t have any kind of immunity? No. No. No.
The rules governing this issue were established by the
Supreme Court in Napue v. Illinois, 360 U.S. 264 (1959). There a
government witness, in response to a question by the prosecutor,
testified that “he had received no promise of consideration in
return for his testimony.” Id. at 265. The prosecutor “had in
fact promised him consideration, but did nothing to correct the
witness’ false testimony.” Id. The Supreme Court held that the
prosecutor “may not knowingly use false evidence, including false
testimony, to obtain a tainted conviction” regardless of whether
the prosecutor “solicit[s] false evidence” or, as here, “allows
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[false evidence] to go uncorrected when it appears.” Id. at 269.
The use of such false testimony violates the defendant’s
constitutional right to due process. Id. “A new trial is required
if the false testimony could in any reasonable likelihood have
affected the judgment of the jury.” Giglio v. United States, 405
U.S. 150, 154 (1972) (internal quotation marks and alterations
omitted).
We first reject Villanueva-Rivera’s assertion that the
prosecutor’s statements during closing argument constituted a Napue
violation. The prosecutor merely said “there [we]re no promises”
and no plea, cooperation, or immunity agreement. Villanueva-Rivera
has pointed to no evidence to the contrary.
Turning to Escobar-Lopez’s testimony itself, the
government argues that no Napue violation occurred because Escobar-
Lopez was unaware that the government did not intend to prosecute
him. We disagree. In light of the government’s prior admission
that “at no time has the government had any intention of
prosecuting Mr. Escobar,” the government clearly knew that Escobar-
Lopez was not going to be put in jail for his testimony. Yet,
Escobar-Lopez was permitted to testify that “because of my
testimony, I could also be put in jail.” Thus, the government
“allow[ed] [false testimony] to go uncorrected when it appear[ed].”
Napue, 360 U.S. at 269.
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However, the government’s admissions regarding its intent
not to prosecute Escobar-Lopez occurred at a sidebar conference in
the presence of the defense counsel before Escobar-Lopez made the
challenged statements. Villanueva-Rivera’s counsel was thus
equally aware that Escobar-Lopez’s testimony was false. Although
there is some division within the circuits on the issue, we agree
with the majority of circuits that “absent unusual circumstances,
the right of the defendant to disclosure by the prosecutor is
deemed waived if defense counsel with actual knowledge of the
[false testimony] chooses not to present such information to the
jury.” United States v. Iverson, 648 F.2d 737, 739 (D.C. Cir.
1981) (opinion on rehearing) (footnote omitted).7 When the
defendant knows about the false testimony and fails to bring it to
the jury or the court’s attention, the assumption is that he did so
for strategic reasons, and the defendant will not be allowed to
7
See Beltran v. Cockrell, 294 F.3d 730, 736 (5th Cir.
2002); Ross v. Heyne, 638 F.2d 979, 986 (7th Cir. 1980); United
States v. Meinster, 619 F.2d 1041, 1045 (4th Cir. 1980); see also
Jenkins v. Artuz, 294 F.3d 284, 295-96 (2d Cir. 2002) (holding that
Napue violation exists in such circumstances unless there is an
indication that it was a “strategic or tactical omission” by
defense counsel); but see Belmontes v. Brown, 414 F.3d 1094 (9th
Cir. 2005) (“Whether defense counsel is aware of the falsity of the
statement is beside the point. . . . [R]egardless of whether
defense counsel should have known that a state witness testified
falsely, a prosecutor’s responsibility and duty to correct what he
knows to be false and elicit the truth, requires him to act when
put on notice of the real possibility of false testimony.”
(internal citations, quotation marks, and alterations omitted)),
rev’d on other grounds sub nom. Ayers v. Belmontes, 127 S. Ct. 469
(2006).
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question his own strategic choices on appeal. Beltran, 294 F.3d at
736. Nor does this case present unusual circumstances that
undermine this presumption, such as when the failure to object is
the result of defense counsel’s conflict of interest, see Ross, 638
F.2d at 986, or when the defendant was prevented “from raising or
pursuing the issue” at trial by “circumstances essentially beyond
his control,” see Iverson, 648 F.2d at 739. Having had knowledge
that Escobar-Lopez’s testimony was false at the time it occurred
and having chosen not to raise this issue at the time, Villanueva-
Rivera cannot now raise the issue on appeal.
B. Improper Statements by Prosecution Witnesses
Villanueva-Rivera argues that his conviction should be
reversed because prosecution witnesses made “repeated references to
a larger, and very violent organization,” despite the limited scope
of the charged conspiracy. Since there was no defense objection to
these statements on the specific basis that Villanueva-Rivera
raises on appeal,8 we review only for plain error. See United
States v. Figueroa, 976 F.2d 1446, 1453 (1st Cir. 1992). All of
the statements relied on by Villanueva-Rivera merely provided
background information about the investigation. Almost any large
8
Villanueva-Rivera did not object to any of the
statements, and his co-defendants only objected to three of them.
Two of these objections were for lack of foundation and
speculation. The third was based on United States v. Casas, 356
F.3d 104 (1st Cir. 2004), which held that a government agent could
not testify that the defendants were part of the charged drug
conspiracy based on his “investigation.” Id. at 119.
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drug trial will have references to gangs and violent activities.
Since none of the statements connected Villanueva-Rivera to this
activity,9 we find no plain error.
IV. Mangual-Garcia’s Other Alleged Errors
A. Alleged Constructive Possession Errors
Mangual-Garcia argues that the district court erred in
denying his Rule 29 motion for acquittal as to the second count of
the indictment, charging him with possession with intent to
distribute approximately five kilograms of cocaine, because there
was insufficient evidence on the possession element. We disagree.
“For purposes of the statute of conviction, 21 U.S.C. §
841(a)(1), possession may be either actual or constructive.”
United States v. Del Rosario, 388 F.3d 1, 8 (1st Cir. 2004),
vacated on other grounds sub nom. Pacheo v. United States, 544
U.S. 970 (2005). “Constructive possession exists when a person
knowingly has the power and intention at a given time to exercise
dominion and control over an object, either directly or through
others.” Id. at 8 (internal quotation marks omitted). Mangual-
Garcia argues that “[t]here was no evidence that Mr. Mangual-Garcia
was the owner of the plane, had command of the people transporting
the kilos, or any evidence from which the fact finder could find,
9
This is not a situation like Casas, where a prosecution
witness testified that the appellant was part of a drug
“organization,” which was part and parcel with the charged
conspiracy, based on the results of his investigation. 356 F.3d at
118-20.
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or at least infer, that he had the necessary power and intent to
possess the cocaine.” Appellant Mangual-Garcia Br. 7-8.
To the contrary, there was sufficient evidence at trial
for the jury to conclude that Mangual-Garcia constructively
possessed the requisite amount of drugs during the events of
December 21-22. First, the record contains evidence that the drugs
involved in the conspiracy were owned by Mangual-Garcia. Moreover,
tape recorded conversations introduced at trial and the testimony
of cooperating witness Escobar-Lopez indicated that Mangual-Garcia
was going to pay the person who placed the drugs on the December 22
plane and that the courier on that plane was supposed to deliver
the drugs to Mangual-Garcia in the United States. Finally, other
tape recorded conversations showed Mangual-Garcia scheduling the
shipment of the drugs and coordinating who would place drugs on the
plane. Based on all of this evidence (as well as additional
evidence introduced at trial), we conclude that the district court
did not err in denying Mangual-Garcia’s Rule 29 motion for
acquittal on the possession charge.
Mangual-Garcia makes two other arguments related to
constructive possession. First, he argues that the district
court’s jury instructions should have included a second sentence
from Del Rosario in addition to the one quoted above in the text:
“[i]n a drug case, constructive possession may be inferred from a
defendant’s dominion and control over an area where narcotics are
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found.” 388 F.3d at 8 (internal quotation marks omitted). This
quote is clearly just one example of when constructive possession
can be found in a drug case, and the district court did not err in
refusing to include this language in the instruction.
Second, Mangual-Garcia argues that the prosecutor’s
rebuttal closing argument improperly analogized constructive
possession to when “someone is shipping you something Fed Ex or UPS
and you know it’s coming to you . . . and you’ve got the tracking
number but you haven’t gotten possession of it yet.”10 Certainly,
the facts of this case could be distinguished from the analogy, but
we do not see how this analogy rises to the level of prosecutorial
misconduct.
B. Comments on Failure to Produce Evidence
Mangual-Garcia also alleges that the prosecutor
improperly commented on his silence during the rebuttal closing
10
In full, the prosecutor’s argument was as follows:
Prosecutor: As to Mr. Armenteros and his argument about
the constructive possession, let me kind of give you an
analogy. Say someone is shipping you something Fed Ex or
UPS and you know its coming to you, say it’s jewelry, and
you’ve got the tracking number but you haven’t gotten
possession of it yet.
Defense: Objection as to the example, it doesn’t follow
the law.
Court: Let her continue, I don’t know what she’s going to
say.
Prosecutor: And it goes missing, and you call about the
tracking number because you’re following up on it, you’re
trying to find where it is, because it’s yours, it
belongs to you.
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argument. Mangual-Garcia’s attorney, during his closing argument
noted that the prosecution had not provided any evidence that
Mangual-Garcia was in New Jersey at the time of the charged
conspiracy and noted in particular that the government had failed
to provide a telephone or electric bill to show that Mangual-Garcia
was in Newark. In rebuttal, the prosecutor responded that Mangual-
Garcia had not provided any evidence to the contrary, stating:
Mr. Armenteros suggested, oh, they could have brought the
electric bill, they could have brought the phone bill to
prove who my client was. Defendants also could have done
that; they don’t have to....
Mangual-Garcia objected to this statement, and the district court
immediately gave a curative instruction that the defendant did not
have to present evidence because he was presumed innocent and the
government had to prove guilt beyond a reasonable doubt. The
prosecutor then continued, saying “[a]s the Court explained, they
don’t have to; that doesn’t mean they can’t,” and Mangual-Garcia
objected again. The court instructed the prosecutor to “leave that
subject matter because [it] w[ould] have to re-instruct the jury.”
“[T]he Fifth Amendment . . . forbids either comment by
the prosecution on the accused’s silence or instructions by the
court that such silence is evidence of guilt.” Griffin v.
California, 380 U.S. 609, 615 (1965) (footnote omitted). If the
prosecutor had been the first one to raise the issue by noting
Mangual-Garcia’s failure to produce documents showing he was not in
Newark, the prosecutor’s comments might be seen as a comment on the
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defendant’s failure to testify. See United States v. Stroman, No.
06-2133, ___ F.3d ___, 2007 WL 2377144, at *4 (1st Cir. Aug. 22,
2007); United States v. Hershenow, 680 F.2d 847, 856 (1st Cir.
1982) (noting that documents within a defendant’s personal
possession are protected by the 5th Amendment).
However, the comments were only “made in rebuttal after
defense counsel had [himself] raised the issue” of the government’s
failure to produce an electric or telephone bill. United States v.
Henderson, 320 F.3d 92, 107 (1st Cir. 2003) (emphasis omitted). By
suggesting that the prosecutor could have produced such documents,
the defense attorney indicated that these documents were available
to persons other than the defendant. Under these circumstances,
the “prosecutor’s response was not such that the jurors would
probably interpret it as commentary on the accused’s failure to
take the stand.” Id. (internal quotation marks omitted). Instead,
the government’s comment merely suggested that, if the documents
were generally available (as defense counsel had suggested), either
side could have produced them –- without the defendant’s taking the
stand.
Under the invited reply doctrine, “the prosecutor’s
remarks were ‘invited,’ and did no more than respond substantially
in order to ‘right the scale,’ [and do] not warrant reversing [the]
conviction.” United States v. Young, 470 U.S. 1, 12-13 (1985). In
a similar context in Henderson, “defense counsel suggested that the
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government was hiding something by not producing” a witness to the
drug transaction, and the prosecutor responded in rebuttal by
saying that the defendant could have produced this witness. 320
F.3d at 107. This court rejected the defendant’s claim that this
was an improper comment on his silence, concluding that “defense
counsel invited a response by raising the issue” and “[t]he
prosecutor’s remarks were limited and addressed only the defense
counsel’s own comments.” Id. For the same reason, a new trial is
not warranted in this case.
C. Cumulative Effect of Errors
Mangual-Garcia argues that, even if each individual error
was harmless in its own right, “the total number of incidents in
the case at bar have a cumulative effect that warrant a new trial.”
Appellant Mangual-Garcia’s Br. 34; see United States v. Mooney, 315
F.3d 54, 61 (1st Cir. 2002). As described above, we find only
three non-sentence-related errors in the district court
proceedings: the use of the December 8 testimony, the failure to
make a final Petrozziello determination, and the use of false
testimony of Escobar-Lopez.
We conclude that these three errors together are
insufficient to warrant the remedy of a new trial, which “is rarely
used [and] is warranted only where there would be a miscarriage of
justice or where the evidence preponderates heavily against the
verdict.” Id. As discussed above, we cannot say that the
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“evidence preponderates heavily against the verdict” on either the
conspiracy or the possession charges. We have already concluded
that there was legally sufficient evidence that Mangual-Garcia
possessed the requisite amount of drugs and significant evidence
(aside from the December 8 events) of his involvement in the
conspiracy. Nor can we say that the cumulative effect of the
alleged errors, given the curative instructions that were given and
the strength of the other evidence, constitutes a miscarriage of
justice.
V. Sentencing
The appellants raise two types of sentencing issues.
Villanueva-Rivera argues that the district court erred in its
calculation of his guideline sentencing range. Villanueva-Rivera
raises two objections to the calculation of his range. He first
argues that the district court erred in failing to adjust his
offense level for minor participation. We find no “clear error” in
the district court’s refusal to give Villanueva-Rivera a minor role
adjustment. See United States v. Cassiere, 4 F.3d 1006, 1026 (1st
Cir. 1993). Given the evidence of Villanueva-Rivera’s role
described above, the district court could have reasonably concluded
that his role was more than that of a minor participant. Second,
Villanueva-Rivera argues that the district court’s factual finding
that the drug quantity involved in the conspiracy was over 50
kilograms of cocaine was erroneous. We again find no clear error,
-26-
as there was testimony that the conspiracy shipped four kilograms
of cocaine to the United States every 2-3 weeks for the period of
the conspiracy (November 2000 through December 2002). See United
States v. Pizarro-Berrios, 448 F.3d 1, 6 (1st Cir. 2006). Although
Villanueva-Rivera argues that the drug quantities belonging to
alleged government informant Vélez-García should not be counted for
purposes of sentencing, this issue was not raised below and we find
no plain error given the lack of evidence that Vélez-García was the
only member of the conspiracy to possess these drugs.11
Finding no error in the calculation of the Villanueva-
Rivera’s guideline sentencing ranges, we turn to the contention by
both appellants that the district court failed adequately to
explain its reasons for imposing the particular sentence within the
range. Because the appellants failed to object at sentencing, we
review for plain error. See United States v. Vazquez-Molina, 389
11
Villanueva-Rivera also argues, and the government does
not dispute, that the district court failed to state its ultimate
guidelines calculation and sentencing range in open court.
However, the presentence report assigned a base offense level of 36
with a two-level upward adjustment for obstruction of justice.
Villanueva-Rivera objected to the upward adjustment, and the
district court sustained this objection. He also objected to the
base offense level and sought a downward adjustment for minor
particpation, both of which the district court rejected. From
this, it can be inferred that the guidelines calculation was a
level 36 (with a criminal history category I), which results in a
sentencing range of 188 to 235 months. See United States v.
Jimenez-Beltre, 440 F.3d 514, 519 (1st Cir. 2006) (en banc)
(holding that a district court’s sentencing reason can be inferred
from the pre-sentence report and the parties’ arguments); see also
United States v. Scherrer, 444 F.3d 91, 94 (1st Cir. 2006) (en
banc).
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F.3d 54, 57 (1st Cir. 2004), vacated on other grounds, 544 U.S. 946
(2005).
Mangual-Garcia’s sentencing range was 324 to 405 months,
and the district court sentenced him to 364 months. Villanueva-
Rivera’s sentencing range was 188 to 235 months, and the district
court sentenced him to 192 months. Since both of these ranges
exceeded twenty-four months, “the court, at the time of sentencing,
[was required to] state in open court . . . the reason for imposing
a sentence at a particular point within the [Guidelines Sentencing]
range.” 18 U.S.C. § 3553(c)(1). In explaining why it chose the
sentence it did for each defendant, the district court merely
recited that it had considered the factors it was required to
consider under 18 U.S.C. § 3553(a).12 It did not “specifically
identify some discrete aspect of the defendant’s behavior and link
12
In sentencing Mangual-Garcia, the court recited as
follows:
The Court has considered all the applicable adjustments
under the now advisory Federal Sentencing Guidelines, as
well as the other sentencing factors set forth in 18 U.S.
Code, Section 3553(a), that is, the nature and
circumstances of the offenses, defendant’s history and
characteristics, the need to promote respect for the law
and to provide just punishment in light of the
seriousness of the offenses, deterrence, the protection
of the public from further crimes of defendant,
rehabilitation, and the need to avoid unwarranted
disparities among defendants with similar records who
have been found guilty of similar conduct.
The court made a nearly identical statement at Villanueva-Rivera’s
sentencing.
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that aspect to the goals of sentencing” as is required under §
3553(c)(1). Vazquez-Molina, 389 F.3d at 58. Thus, as the
government admits, “the court’s statement was deficient as a matter
of law.” Govt. Br. at 66.
However, we must determine whether it constituted plain
error sufficient to warrant resentencing. To vacate a sentence
under plain error review, four prerequisites must be established:
(1) an error occurred; (2) the error was clear and obvious; (3) the
error affected the defendant’s substantial rights; and (4) the
error impaired the fairness, integrity, or public reputation of the
judicial proceedings. United States v. Turbides-Leonardo, 468 F.3d
34, 38 (1st Cir. 2006).
We conclude that a clear and obvious error occurred but
that this error did not affect Mangual-Garcia and Villanueva-
Rivera’s substantial rights. This court has addressed plain error
review under United States v. Booker, 543 U.S. 220 (2005), i.e.,
where the district court, in a trial conducted before Booker was
decided, treated the sentencing guidelines as mandatory. In that
context, this circuit has held that “[t]he burden is on the
defendant to convince us on specific facts” that there is a
“reasonable probability of a different sentence” in the absence of
the error. United States v. Antonakopoulos, 399 F.3d 68, 80 (1st
Cir. 2005) (emphasis added).
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This court has applied the same standard in reviewing a
district court’s failure to comply with § 3553(c), holding that a
reversal under plain error review requires “a reasonable
probability that, but for the error, the district court would have
imposed a different, more favorable sentence.” United States v.
Gilman, 478 F.3d 440, 447 (1st Cir. 2007) (quoting Turbides-
Leonardo, 468 F.3d at 39).
The purpose of § 3553(c) is to enable appellate review of
district court sentencing decisions to insure that the district
court’s choice of a particular sentence was reasonable. See
Jimenez-Beltre, 440 F.3d at 519; see also H.R. Rep. No. 98-1030, at
60 (1984), as reprinted in 1984 U.S.C.C.A.N. 3182, 3243. Our
sister circuits have held that a sentence may be unreasonable
if a sentencing court fails to consider a relevant factor
that should have received significant weight, gives
significant weight to an improper or irrelevant factor,
or considers only appropriate factors but nevertheless
commits a clear error of judgment by arriving at a
sentence that lies outside the limited range of choice
dictated by the facts of the case.
United States v. Haack, 403 F.3d 997, 1004 (8th Cir. 2005); see
also United States v. Smith, 440 F.3d 704, 707-08 (5th Cir. 2006).
Thus, to establish a reasonable probability of a different sentence
in the context of a § 3553(c)(1) error, the appellant has the
burden of identifying specific facts that convince us that the
district court considered a significant improper factor, failed to
-30-
consider a significant proper factor, or made a significant error
in balancing the factors.
Here, Villanueva-Rivera was sentenced near the low end of
the applicable range and Mangual-Garcia was sentenced near the
midpoint. The appellants do not identify anything in the record
suggesting that an improper factor was considered or a proper
factor was not considered, nor do they identify any error in the
balancing of the factors. The reasonable probability test is not
satisfied by the mere assertion that the sentence could have been
different if not for the error. See Antonakopoulos, 399 F.3d at
80. Instead of pointing to “specific facts” to convince us that
there is a reasonable probability of a different sentence, id., the
appellants seem to urge a per se rule that the failure to provide
an adequate explanation under § 3553(c)(1) constitutes plain error.
As noted, such a per se rule was specifically rejected in Gilman.
Since the appellants have not carried their burden to identify
specific facts that support a conclusion that there is a reasonable
probability of a different sentence, we find no plain error and no
basis for resentencing.13
13
To the extent that Villanueva-Rivera makes a separate
argument that the district court failed adequately to explain his
sentence (other than his § 3553(c)(1) argument), we find no plain
error for the same reasons described in the text.
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CONCLUSION
For the reasons explained above, the appellants’
convictions and sentences are affirmed.
It is so ordered.
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