United States v. Pomales-Lebrón

United States Court of Appeals
For the First Circuit
No. 06-1620

UNITED STATES OF AMERICA,

Appellee,

v.

EDGAR POMALES-LEBRÓN,
a/k/a Edgardo Oscar Pomales-Lebrón,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Héctor M. Laffitte, U.S. District Judge]

Before
Torruella, Circuit Judge,
Baldock * , Senior Circuit Judge,
and Smith ** , District Judge.

Arturo Luciano Delgado for appellant.
Andrew Massucco-LaTaif, Assistant United States
Attorney, with whom Rosa Emilia Rodríguez-Vélez, United
States Attorney, Nelson J. Pérez-Sosa, Assistant United
States Attorney, and Germán A. Rieckehoff, Assistant United
States Attorney, were on brief for appellee.

January 17, 2008

*
Of the Tenth Circuit Court of Appeals, sitting by
designation.
**
Of the District of Rhode Island, sitting by
designation.
 BALDOCK, Senior Circuit Judge. A grand jury

indicted defendant Edgar Pomales-Lebrón and five co-

defendants for drug-trafficking offenses. Defendant was

charged with: (1) conspiracy to possess with intent to

distribute fifty grams or more of cocaine base, in violation

of 21 U.S.C. §§ 841, 846 (Count 1); and (2) possession with

intent to distribute five grams or more of cocaine base, in

violation of 21 U.S.C. § 841 and 18 U.S.C. § 2 (Count 2). 1

A petit jury convicted defendant on both counts. On appeal,

defendant challenges his convictions, arguing that the

district court erred in denying his: (1) Motion for

Acquittal; and (2) Motion for New Trial. See Fed. R. Crim.

P. 29, 33. As to defendant’s Rule 29 Motion for Acquittal,

we have jurisdiction, pursuant to 28 U.S.C. § 1291, and

affirm. As to defendant’s arguments pertaining to Rule 33,

we lack jurisdiction and dismiss.

I.

Viewed in the light most favorable to the

government, the trial evidence demonstrated that: in late

2003, Drug Enforcement Administration (DEA) Special Agent

1
In addition, the First Superceding Indictment
included a Count 3, which stated that any property derived
from the offenses stated in Counts 1 and 2 would be subject
to forfeiture. The district court dismissed Count 3 for
lack of evidence after defendant rested his case. (12/2 Tr.
75.)

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Todd Yant (SA Yant) began investigating the Joel Rivera-

Delgado drug-trafficking organization (the Rivera

organization) based in Guayama, Puerto Rico. (Tr. 68:10-

11.) To further the investigation, DEA used a paid

confidential source (CS) to infiltrate the Rivera

organization. (Id.; see also 12/2 Tr. 30.) At trial, the

CS testified in person and admitted he used marijuana in

December 2003 and January 2004. (See 12/2 Tr. 29, 32.)

On December 19, 2003, the CS was introduced to

Harry Arizmendi-Serrano, a Rivera organization affiliate.

(11/30 Tr. 78; 12/1 Tr. 100.) The CS purchased 100 vials of

cocaine base (crack), weighing 7.4 grams (12/1 Tr. 16), from

Arizmendi. (11/30 Tr. 78; 12/1 Tr. 100.) According to the

CS, although he did not know defendant Edgar Pomales-

Lebrón’s name at the time (12/1 Tr. 131), defendant was

present when he purchased crack from Arizmendi on December

19. 2 (12/1 Tr. 101, 104, 109-10.) The CS recorded this

2
The CS did not inform the government that defendant
was present at the December 19, 2003 transaction until
November 30, 2005, after the conclusion of the first day of
defendant’s trial. (12/1 Tr. 2.) Before the trial resumed
on December 1, 2005, the government apprised the district
court and defendant of this development. (12/1 Tr. 2.)
Defendant objected to the CS’s proposed testimony regarding
defendant’s presence at the December 19, 2003 deal. (12/1
Tr. 103.) Specifically, defendant argued that he would be
prejudiced by such testimony due to, inter alia, his having
inadequate time to prepare. (12/1 Tr. 103.) The district
court, however, allowed the testimony finding: (1) no bad
(continued...)

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transaction; DEA conducted partial video surveillance. 3

(12/1 Tr. 75-76, 105.)

On December 31, 2003, the CS arranged for a larger

controlled buy from Arizmendi. (11/30 Tr. 79-80.) SA Yant

testified that the 600 crack vials the CS purchased on that

date weighed 49 grams. (11/30 Tr. 81.) DEA conducted video

surveillance of the deal. (12/1 Tr. 83.) Defendant was not

present during the December 31 transaction. (12/1 Tr. 16,

23.)

On January 12, 2004, the CS met with Arizmendi and

defendant to arrange a 1000-vial crack buy. (11/30 Tr. 84-

85; 12/1 Tr. 117.) The CS learned defendant’s name for the

first time at this meeting. (11/30 Tr. 84; 12/1 Tr. 130-

31.) When asked by the CS, defendant and Arizmendi

identified their supplier as “Joel.” 4 (12/1 Tr. 132-33.)

(...continued)
faith on the government’s part; (2) the December 19, 2003
buy was, in any event, carried out during, and in
furtherance of, the charged conspiracy; (3) the government
promptly disclosed this development to the court and
opposing counsel; and (4) defendant had sufficient time to
prepare (i.e., primarily during the one and one-half hour
lunch break). (See 12/1 Tr. 103.)
3
DEA’s video surveillance did not capture the
transaction in its entirety because much of the transaction
unexpectedly transpired away from the surveillance location.
(11/30 Tr. 75-76.)
4
Although the CS recorded the January 12, 2004
(continued...)

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 The next day, January 13, 2004, the CS purchased

1000 vials (73.7 grams) of crack from defendant. (Id. 85,

87; 12/1 Tr. 122-25; see also 12/1 Tr. 17.) The CS recorded

the transaction; DEA conducted partial video surveillance. 5

The audio recordings from the CS’s wire were played to the

jury. (12/2 Tr. 5.) On the recording, a voice — identified

as defendant’s by the CS — is heard counting. (12/2 Tr. 9-

10; 12/1 Tr. 122-25.) The CS testified that defendant was

counting money he had handed to defendant in payment for the

narcotics. (12/2 Tr. 9-10; 12/1 Tr. 122-25.) Later on the

recording, defendant is heard saying to the CS: “[T]ake that

bag, and let’s get the F out of here.” (12/2 Tr. 9-10; 12/1

Tr. 122-25.) The CS testified that the “bag” defendant

referred to was the bag containing the 1000 vials of crack. 6

(12/2 Tr. 11.)

(...continued)
meeting, the recording proved unintelligible. (11/30 Tr.
85.) T he district court, consequently, refused to admit the
recording into evidence. (12/1 Tr. 141, 148.)
5
As with the December 19, 2003 transaction, see supra
note 3, DEA’s video surveillance did not capture the entire
transaction. SA Yant explained that the deal’s location
changed several times as it unfolded. (12/1 Tr. 83, 87.)
6
In addition to the aforementioned, SA Yant testified
regarding two other drug buys that purportedly occurred
during the charged conspiracy. Both of those transactions
involved defendant’s co-conspirators; SA Yant testified,
however, that defendant was not implicated in either of
those incidents. (11/30 Tr. 124; 12/1 Tr. 4.)

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 After the January 13, 2004 transaction, the CS

placed — at the DEA’s direction — several recorded calls to

defendant. (12/1 Tr. 133.) The district court admitted

these recordings into evidence; they were played for the

jury. (12/2 Tr. 14-17, 20.) As to each recorded call, the

CS identified defendant’s voice, as well as his own. (See

id.)

In the first recorded call, the CS referenced “a

thousand” and stated that “the stuff was good” in talking to

defendant. (12/2 Tr. 14.) The CS testified that this was

a reference to the January 13, 2004 buy. (12/2 Tr. 14-15;

12/1 Tr. 134.) The connection dropped and the call ended.

During the second call, the CS asked defendant about whether

he could get “2000” (which, the CS testified, was a

reference to 2000 vials of crack). (12/2 Tr. 15-16.)

Defendant refused to discuss the matter over the phone with

the CS. (12/2 Tr. 15-16.)

In the third call, the CS tried to get defendant to

agree to meet his “friend” (in reality, an undercover DEA

agent). (12/2 Tr. 16; 12/1 Tr. 133-34.) Defendant,

however, refused. (12/1 Tr. 134.) At some point in this

conversation, the CS mentioned “fifteen hundred” — i.e.,

1500 vials of crack (12/2 Tr. 18) — to which defendant

responded: “[N]o, those things cannot be talked about over

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the telephone.” (12/2 Tr. 18.) During the fourth, and

final, recorded call, the CS asked defendant to discount ten

cents on each “nail.” (12/2 Tr. 20.) The CS also

referenced “fifteen hundred nails.” (12/2 Tr. 20.) The CS

testified that by “nail” he was referring to one vial of

crack. (12/2 Tr. 20-21.)

Based on these conversations, as well as other DEA

investigatory efforts, SA Yant applied for a Title III

wiretap of defendant’s phone number. 7 A U.S. District Judge

granted SA Yant’s application on March 25, 2004. (11/30 Tr.

105; see also 11/30 Tr. 100-04.) During the thirty-day wire

tap, DEA intercepted and recorded several drug-trafficking

related discussions on defendant’s phone line. The district

court admitted portions of these recorded calls, which were

played for the jury. (E.g., 11/30 Tr. 107, 128 (co-

defendant Omar Caraballo-García’s arrest for possessing 13

vials of crack discussed by defendant and Arizmendi on

defendant’s wire); e.g., 11/30 Tr. 108, 124-25, 136 (seizure

of 600 vials of crack from a suspected member of the Rivera

organization – “Otto” – whose vehicle was used during the

7
Title III of the Omnibus Crime Control and Safe
Streets Act of 1968 is codified at 18 U.S.C. §§ 2510-22
(Title III). Authorities can apply “for an order
authorizing or approving the interception of a wire, oral,
or electronic communication” pursuant to the procedures set
forth in 18 U.S.C. § 2518. 18 U.S.C. § 2518.

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December 31, 2003 and January 13, 2004 drug transactions,

discussed by defendant and Arizmendi on defendant’s wire);

see also, e.g., 11/30 Tr. 132-33 (conversation between

defendant and Arizmendi regarding Joel Rivera having

“2100”); 11/30 Tr. 138-39 (conversation between defendant

and Joel Rivera regarding Otto’s arrest after the 600-vial

seizure).) Additionally, based on his investigation,

SA Yant testified that his conservative estimation was that

the Rivera organization sold 125 grams of crack per week

between 2002-2005. (12/1 Tr. 4-5, 10.)

At the close of the government’s case, defendant

moved for a judgment of acquittal under Fed. R. Crim. P. 29.

(12/2 Tr. 70.) The district court denied the motion,

finding sufficient evidence had been introduced to support

defendant’s conviction on both Count 1 and Count 2. (12/2

Tr. 70.)

II.

Under Fed. R. Crim. P. 29, we “must enter a

judgment of acquittal of any offense for which the evidence

is insufficient to sustain a conviction.” Fed. R. Crim. P.

29. We review a denial of a motion for acquittal “de novo

to determine whether any rational factfinder could have

found that the evidence presented at trial, together with

all reasonable inferences, viewed in the light most

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favorable to the government, established each element of the

particular offense beyond a reasonable doubt.” United

States v. Campbell, 268 F.3d 1, 6 (1st Cir. 2001).

To establish a violation of 21 U.S.C. § 846, the

government must prove: “[1] the existence of a conspiracy,

[2] the defendant's knowledge of the conspiracy, and [3] the

defendant's knowing and voluntary participation in the

conspiracy.” United States v. Portalla, 496 F.3d 23, 26

(1st Cir. 2007). To establish a violation of 21 U.S.C.

§ 841, the government must prove that defendant:

(1) possessed crack cocaine, “either actually or

constructively,” (2) “did so with a specific intent to

distribute the [crack] cocaine over which [he] had actual or

constructive possession,” and (3) “did so knowingly and

intentionally.” United States v. Lopez-Lopez, 282 F.3d 1,

19 (1st Cir. 2002). Review of the record makes clear that

the evidence introduced at trial adequately supported the

jury’s verdicts.

The recordings of the December 31, 2003 buy, the

January 13, 2004 buy, and the calls between defendant and

the CS (including the Title III calls) are likely sufficient

— on their own — to support defendant’s convictions on Count

1 and Count 2. We agree with the district court that

defendant’s voice — particularly on the January 13, 2004

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recording and the Title III calls — constitutes compelling

evidence of defendant’s guilt. Even if, as defendant

suggests, this evidence could be interpreted as non-

incriminating, other evidence readily supported the jury’s

verdict. See Campbell, 268 F.3d at 6 (reviewing court must

view the evidence in the light most favorable to the

government).

The CS’s testimony further evidenced defendant’s

guilt. The CS’s testimony was corroborated by several

sources, including the recorded conversations between the CS

and defendant, as well as SA Yant’s testimony. See, e.g.,

United States v. Vazquez Guadalupe, 407 F.3d 492, 499 (1st

Cir. 2005) (case did not turn on the CS’s testimony where

there were “audio and video tapes, in which the defendants

incriminated themselves”). Indeed, SA Yant’s testimony, and

the recorded conversation itself, track the CS’s testimony.

Cf. United States v. Andujar-Basco, 488 F.3d 549, 558 (1st

Cir. 2007) (case hinged on the CS’s testimony, but that

testimony was “corroborated by several sources”). Taken

together, the recorded conversations and the CS’s testimony

provided ample — even overwhelming — evidence from which a

rational juror could have found defendant guilty beyond a

reasonable doubt on both charges.

Contrary to defendant’s position, the district

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court did not err in permitting the CS to testify in light

of his admitted marijuana use and compensation by DEA.

Defendant failed to make a timely objection at trial. 8 See

United States v. Mangual-García, Nos. 05-2275, 05-2414, 2007

WL 2702973, at *5 (1st Cir. Sept. 18, 2007). 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.” Id.; see also Fed. R. Crim.

P. 52(b). No plain error is evident here as defendant’s

position lacks merit. See id.

The issues raised by defendant do not go to

admissibility, but rather pertain to the credibility of the

CS’s testimony. See United States v. Vázquez-Guadalupe, 407

F.3d 492, 499 (1st Cir. 2007) (deeming testimony of a

government witness, a criminal defendant being paid by the

government for his cooperation, admissible and noting the

credibility of that testimony “is left for the jury”). The

jury was free to — as it presumably did — credit the CS’s

testimony, notwithstanding his marijuana use and government

compensation. Id. (rejecting the argument that the

“government cannot conduct sting operations using

8
We note that while neither party addresses whether
defendant objected to the CS’s testimony on the grounds that
he was compensated and used marijuana, our review of the
transcript indicates that defendant failed to do so.

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individuals who expect to receive . . . financial

compensation in exchange for their cooperation”).

Defendant’s argument that the district court erred

in allowing the CS to testify as to the December 19, 2003

deal is more compelling. See supra note 2. Specifically,

defendant contends that this constituted prejudicial error

given that the government did not: (1) charge the incident

in the First Superceding Indictment; and (2) disclose the

incident to defendant until trial was underway (i.e., long

after discovery had concluded). Appellant’s Br. 35 (citing

Fed. R. Crim. P. 52).

As noted above, after trial began, the government

informed the district court and defendant that the CS would

testify that defendant was present at the December 19, 2003

buy. The parties do not contest that: (1) the government

acted in good faith; (2) defendant timely objected to, and

sought exclusion of, the CS’s testimony regarding the

December 19, 2003 buy; and (3) defendant did not seek a

continuance. (See 12/1 Tr. 103.)

“We review the district court's evidentiary rulings

as to preserved claims for abuse of discretion.” United

States v. Balsam, 203 F.3d 72, 84 (1st Cir. 2000). Further,

“[a]s 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. Mangual-García, Nos. 05-2275, 05-2414, 2007

WL 2702973, at *2 (1st Cir. Sept. 18, 2007); see generally

United States v. Benedetti, 433 F.3d 111, 118 (1st Cir.

2005) (“We note in passing that, were surprise a genuine

problem, ‘the granting of a continuance is a more

appropriate remedy than exclusion of the evidence.’”

(quoting Fed. R. Evid. 403 advisory committee’s note)).

In any event, defendant fails to explain how the

late disclosure of defendant’s presence during the

December 19, 2003 incident constituted 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.” Mangual-García, 2007 WL 2702973, at *2. Though

defendant did not have a great deal of time to prepare, he

learned that the CS would testify that he was at the

December 19, 2003 buy before the government concluded its

direct examination of the CS (i.e., prior to defendant’s

cross-examination of the CS).

Defendant also argues that the First Superceding

Indictment’s silence regarding the December 19, 2003 buy

requires this Court to reverse the verdicts. We disagree.

First, the government “is not limited in its proof at trial

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to those overt acts alleged in the indictment.” See United

States v. Muñoz-Franco, 487 F.3d 25, 53 (1st Cir. 2007)

(internal quotation omitted).

Second, the underlying indictment’s failure to

reference the December 19, 2003 incident does not constitute

a “prejudicial variance.” See United States v. Cruz-Arroyo,

461 F.3d 69, 77 (1st Cir. 2006). A prejudicial variance

constitutes one in which: (1) “the facts proved at trial

differ from those alleged in the indictment”; and (2) the

error “affects the defendant’s substantial rights” (i.e.,

when the indictment fails to provide the “the defendant with

sufficient detail to allow him to prepare a defense, avoid

unfair surprise at trial, and plead double jeopardy when

appropriate”). Id. Here, the First Superceding Indictment

alleged that the conspiracy began in 1998 and continued

until May 11, 2005 (the date the indictment issued). The

indictment set forth: (1) the “nucleus of operative facts

giving rise to the charges against the appellant”; (2)

“listed some overt acts referable to the charged

conspirac[y]; and (3) described the nature of the alleged

agreement between the alleged co-conspirators.” See, e.g.,

id. (finding no prejudicial variance occurred where the

indictment at issue met these three criteria).

As explained above: (1) defendant failed to ask for

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a continuance, or even an extended recess, prior to the CS’s

testimony; and (2) ample evidence existed of defendant’s

involvement in the charged conspiracy, aside from the

December 19, 2003 incident, and the January 13, 2004 deal.

III.

Defendant also maintains the district court

improperly denied his motion for a new trial. See, e.g.,

Appellant’s Br. 2. As outlined in our November 28, 2007

Order to Show Cause, however, defendant never filed any such

motion. 9 We remain certain that no appellate jurisdiction

lies over that portion of the appeal pertaining to

defendant’s Rule 33 “motion.” Put simply: (1) defendant

failed to properly present a motion for a new trial to the

district court; and (2) thus, the district court had no

opportunity to rule on the motion. See Fed. R. App. P.

4(b)(3)(B). Lacking appellate jurisdiction, we dismiss that

portion of defendant’s appeal pertaining to Rule 33. See

Espinal-Dominguez v. Puerto Rico, 352 F.3d 490, 495 (1st

9
While Document 145 on the district court’s docket
sheet is entitled “Motion for New Trial,” the attached
document does not pertain to this case. Effective
February 24, 2004, pursuant to a previously entered standing
order, the United States District Court for the District of
Puerto Rico’s official court record constitutes the
electronic file maintained on the District’s servers. See
Standing Order No. 1 (In the Matter of Electronic Case
Filing, Misc. No. 03-149 (HL)).

-15-
Cir. 2003) (“Even though the parties have assumed the

existence of appellate jurisdiction, we enjoy no comparable

luxury. Because federal courts are powerless to act in the

absence of subject matter jurisdiction, we have an

unflagging obligation to notice jurisdictional defects and

to pursue them on our own initiative.”).

Counsel for both parties bear responsibility for

this egregious error. Accordingly, we feel compelled to

comment at some length. Defense counsel failed to properly

file a Rule 33 motion on behalf of his client, but

nonetheless sought appeal on that ground. This – at best –

amounted to gross ineptitude; at worst, it constituted an

intentional effort to mislead this Court. We do not,

however, pretend to know which is correct. Defendant’s

response to the Order to Show Cause, rather than explaining

how this error occurred, simply states the painfully

obvious: that the motion was “incorrectly filed.”

Appellant’s Mot. in Resp. to Ct.’s Order to Show Cause ¶ 1.

Despite defendant’s concession that no Rule 33

motion was filed in the district court, remarkably,

defendant argues — without citation to a single legal

authority — that “justice demands” that we address his Rule

33 arguments. (Id. ¶4.) Therein, defendant notes: (1) he

timely filed his appeal pertaining to the non-existent Rule

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33 order; (2) his Rule 29 and Rule 33 arguments were

“essentially the same”; (3) both parties argued the case

without recognizing that defendant failed to file a Rule 33

motion; and (4) this case presents — unspecified —

“exceptional circumstances that excuse the [non] filing of

the motion for new trial.” (Id.) This is utter nonsense.

We are a court of limited jurisdiction. See Espinal-

Dominguez, 352 F.3d at 495. Appellate jurisdiction cannot

be conferred by counsel’s assertion that he intended, but

admittedly failed, to file a Rule 33 motion. Id.

The government compounded the problem by obviously

failing to review the record. The government’s briefing, as

well as its oral argument, responded to defendant’s Rule 33

appeal on the merits. The government’s response to the

Order to Show Cause sheds little light on its actions.

Therein, the government attempted to explain its conduct by

noting: (1) “the defense never alleged on appeal that it had

actually filed a Rule 33 motion in the district court;” and

(2) defendant “simply argued on appeal that the [he] was

entitled to a new trial as an alternative argument.”

Appellee’s Mot. in Resp. to Order to Show Cause at 2

(emphasis added). Quite plainly, this reasoning is

ludicrous.

Contrary to the government’s puzzling

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characterization, defendant’s briefing and position at oral

argument unambiguously referenced the “district court[’s] .

. . . error [in] denying appellant’s motion for judgment of

acquittal and his motion for new trial.” See, e.g.,

Appellant’s Br. at 38 (emphasis added). In any event, what

concerns us most about the government’s response is that it

misses the point entirely.

Counsel are bound by the American Bar Association’s

Model Rules of Professional Conduct (the Model Rules). 1st

Cir. R. IV, at 106; see also P.R. U.S. Dist. L.R. 83.5(a)

(expressly incorporating the Model Rules). Therein, counsel

owes their respective clients duties of, inter alia,

competence and diligence and they owe this Court a duty of

candor. See Model Rules of Prof’l Conduct R. 1.1, 1.3, 3.3.

It is axiomatic that lawyers are obligated to scrupulously

review the record on appeal, including the district court

docket. When referring to documents purportedly filed in

the district court — much less documents material to an

appeal — counsel must verify that such documents exist. If

they do not, obviously, immediate corrective action must be

taken. None of these steps were taken here, at the

considerable expense of judicial economy. Even more

amazingly, counsel failed to recognize the severity of this

situation or attempt to make amends even after the Order to

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Show Cause issued. As noted above, both parties’ responses

are nonsensical. We underscore how deeply troubled we are

by this unfortunate series of events.

IV.

For the forgoing reasons, we affirm the district

court’s denial of defendant’s Rule 29 motion. We dismiss

the Rule 33 arguments raised by defendant on appeal.

Affirmed in part, dismissed in part.

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