United States Court of Appeals
For the First Circuit
No. 07-1499
UNITED STATES OF AMERICA,
Appellee,
v.
JERRY FAMANIA-ROCHE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José A. Fusté, U.S. District Judge]
Before
Lynch, Chief Judge, and
Boudin and Lipez, Circuit Judges.
Mariana E. Bauzá-Almonte, Assistant United States Attorney,
with whom Nelson Pérez-Sosa, Assistant United States Attorney, and
Rosa Emilia Rodriguez-Velez, United States Attorney, were on brief,
for appellee.
Mark L. Stevens, with whom Law Office of Mark Stevens was on
brief, for appellant.
August 11, 2008
LIPEZ, Circuit Judge. Defendant Jerry Famania-Roche was
charged, along with sixty-five others, with conspiracy to possess
with intent to distribute and distribution of more than five
kilograms of cocaine and one kilogram of heroin. He was convicted
following a two-day jury trial and sentenced to 120 months, the
applicable statutory mandatory minimum, pursuant to 21 U.S.C. §
841(b)(1)(A). He appeals, claiming that the district court plainly
erred in admitting testimony to which Famania-Roche did not object
at trial, and challenging the sufficiency of the evidence linking
him to the conspiracy. After a thorough review of the record, we
affirm the conviction.
I.
In light of Famania-Roche's sufficiency challenge, we
recite the facts in the light most favorable to the jury verdict.
United States v. Colón-Díaz, 521 F.3d 29, 32 (1st Cir. 2008). The
evidence introduced at trial described Famania-Roche as a seller
and a weapons handler for a drug trafficking organization in Santa
Isabel, Puerto Rico. The organization, run by Luis Enrique
Santiago-Báez, controlled all of the drug sales in Santa Isabel
beginning in about 1998. It operated nine drug points, including
Rincón Taíno and Cemí, two locations near the area where Famania-
Roche lived. The sale of drugs within Santa Isabel required
Santiago-Báez's permission. Those who sold drugs without his
permission were killed.
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Each of the drug points sold an eighth of a kilogram of
cocaine each week. Some of the drug points also distributed
heroin, crack, and marijuana. The Rincón Taíno drug point, for
example, sold an eighth of a kilogram of cocaine and heroin each
week over the course of the six-year conspiracy.
At trial, Xiomi Morales-Morales, a cooperating witness
for the government, testified that she had seen Famania-Roche
selling cocaine at Rincón Taíno and Cemí. She operated her own
drug point, known as Lala's Café, and testified that when she did
not have drugs to sell she would send her customers to Famania-
Roche. Her customers would report back that they had purchased
cocaine from him. She stated that Famania-Roche was always armed.
She also saw him at the Coco Bongo Bar, a place frequented by
members of the Santiago-Báez organization. She reported that he
had placed his pistol on top of the bar, as the other members of
the organization did when they gathered to discuss how much money
had been made at the drug points during that week.
David Morales-Rodríguez, another cooperating witness,
testified that he had purchased cocaine from Famania-Roche on 15 to
20 occasions between 2002 and 2005. He also described Famania-
Roche as always armed. Morales-Rodríguez, who stored drugs and
weapons for the Santiago-Báez organization, recounted that one day
Famania-Roche had arrived at his house and told him that he had
been sent by Santiago-Báez and another member of the organization
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to pick up a shotgun. Morales-Rodríguez wrapped the shotgun in a
jacket and gave it to Famania-Roche.1
The government also introduced at trial a recorded
telephone conversation in which Famania-Roche arranged to meet a
confidential informant to sell him two firearms, a 9mm pistol and
a .357 Magnum revolver. Although the confidential informant did
not testify at trial, Special Agent Meléndez-Cruz, the DEA agent
investigating the organization, testified that he had arranged for
the informant to make the call and listened in as it was being
recorded. He testified that the voice on the tape was that of
Famania-Roche. On the recording, Famania-Roche agreed to meet with
the informant to consummate the sale. Famania-Roche came to the
informant's residence as planned. However, he told the informant
that he could not sell him the weapons because they were being used
at the time. This encounter was also recorded, but the recording
was inaudible because Famania-Roche had arrived at the meeting
driving a diesel cement truck.
In addition, the government called Michael Famania-
Torres, the defendant's uncle and a local police officer, to
1
Famania-Roche's father and brother were among those charged
in the indictment as members of the Santiago-Báez organization.
Part of the defense's theory at trial appears to have been that
because Famania-Roche and his father were both called "Jerry," the
investigators may have mistakenly included the son in the
indictment. However, both Morales-Morales and Morales-Rodríguez
testified that they had known the defendant since he was a child
and would be unlikely to confuse him with his father.
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testify. Famania-Torres explained that he had become familiar with
the Santiago-Báez organization through his work as a police officer
and that he had been involved with two separate investigations
related to the organization's activities. On the basis of these
investigations and general familiarity with the organization, he
testified that his nephew was a seller at the drug point at Rincón
Taíno and that he also transported weapons for the organization.
On cross-examination, Famania-Torres admitted that he had never
seen his nephew sell drugs or transport weapons and that he had
never arrested him.
Famania-Roche's counsel did not object to any of the
testimony described above. At the close of the government's case,
Famania-Roche moved for a judgment of acquittal, arguing that the
government had failed to introduce evidence directly linking him to
the conspiracy. See Fed. R. Crim. P. 29. The district court
denied the motion.
Famania-Roche then testified in his own defense and
denied any involvement with the Santiago-Báez organization. He
denied ever selling drugs or weapons and denied that it was his
voice on the recording. He also called his father, an indicted
coconspirator who had pled guilty to the conspiracy, to testify on
his behalf. His father stated that he had no knowledge of his son
being a member of the Santiago-Báez organization or engaging in any
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criminal activity. Famania-Roche then renewed his Rule 29 motion
and the district court again denied it.
Following the jury's guilty verdict, Famania-Roche filed
a final, written Rule 29 motion. The district court denied this
motion during Famania-Roche's sentencing hearing, after hearing
from both sides.
At sentencing, the district court found that Famania-
Roche's guideline range was 78 to 97 months. However, this range
was trumped by the statutory minimum of ten years in prison, 21
U.S.C. § 841(b)(1)(A), which was applicable because the jury had
specifically found, by means of a special verdict form, that
Famania-Roche was responsible for more than five kilograms of
cocaine and more than five kilograms of heroin.2 Accordingly, the
district court sentenced Famania-Roche to 120 months in prison.3
This appeal followed.
2
At the sentencing hearing, the court treated the five-
kilogram quantity for heroin as a mistake. The court had intended
to ask the jury whether Famania-Roche was responsible for more than
one kilogram of heroin. The larger quantity appeared on the form
as a result of a typographic error. The district court decided to
give the defendant the "benefit of the doubt" by construing the
jury's response as a finding that he was responsible for only one
kilogram of heroin rather than five.
3
The district court noted at sentencing that Famania-Roche had
initially pleaded guilty pursuant to a plea agreement under which
he would have received a 60-month sentence. However, because
Famania-Roche had recanted that plea and been convicted by a jury,
he was now subject to the 120-month mandatory minimum sentence.
-6-
II.
Famania-Roche argues that the district court plainly
erred in admitting certain testimony from Xiomi Morales-Morales and
Famania-Torres. We review properly preserved objections to the
admission of evidence for abuse of discretion. United States v.
Rodriguez, 525 F.3d 85, 95 (1st Cir. 2008). However, where, as
here, "the appellant did not assert a timely objection at trial, we
review only for plain error." Id. This standard requires the
appellant to show that there was error, that the error was plain,
and that it prejudiced the defendant. Id. The appellant may
demonstrate prejudice by showing a reasonable probability that "the
error 'affected the outcome of the district court proceedings.'"
Id. (quoting United States v. Epstein, 426 F.3d 431, 437 (1st Cir.
2005)); see also United States v. Dominguez Benitez, 542 U.S. 74,
81-82 (2004). When these three requirements are met, we may
exercise our discretion to correct the error only if it "'seriously
affects the fairness, integrity or public reputation of judicial
proceedings.'" Id. (quoting Epstein, 426 F.3d at 437); see also
United States v. Olano, 507 U.S. 725, 736 (1993).
A. Xiomi Morales-Morales's Testimony
Famania-Roche challenges as hearsay the admission of
Morales-Morales's testimony that her customers had confirmed that
they had purchased cocaine from Famania-Roche when she did not have
any available. The challenged exchange was as follows:
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Government: Let's take it one by one. Rincón
Taíno, what did Mr. Jerry Famania sell in
Rincón Taíno?
Morales-Morales: He sold cocaine. Well, I
know for a fact because when I didn't have
material I would send my customers to him to
buy from him and they would say to me that he
was the one that had sold them the drugs that
day.
Government: Okay. Now, let's talk about Cemí,
what did Jerry Famania sell in Cemí?
Morales-Morales: Cocaine. Also told to me by
my customers.
Government: Okay. By your customers, you mean
people who bought cocaine from you; is that
correct?
Morales-Morales: Exactly. Yes, when I didn't
have any I would send my customers to their
drug points.
Federal Rule of Evidence 801(d)(2)(E) provides that
"statement[s] by a coconspirator of a party during the course and
in furtherance of the conspiracy" are not hearsay. The predicate
for admitting testimony under this rule is a conclusion by the
trial court that "it is more likely than not that the declarant and
the defendant were members of a conspiracy when the hearsay
statement was made, and that the statement was in furtherance of
the conspiracy." United States v. Petrozziello, 548 F.2d 20, 23
(1st Cir. 1977). This determination is referred to in our circuit
as a Petrozziello ruling. United States v. Newton, 326 F.3d 253,
257 (1st Cir. 2003). When a timely objection is made, the trial
court makes a provisional Petrozziello ruling, subject to a final
-8-
ruling as to whether the coconspirator requirement is satisfied at
the close of all the evidence. Id. Whether Morales-Morales's
customers were members of the Santiago-Báez conspiracy, along with
Famania-Roche, is a question of fact. United States v. Hurley, 63
F.3d 1, 11 (1st Cir. 1995) ("Whether a conspiracy's customers are
also members of the conspiracy is a fact-based question . . . .").
Because Famania-Roche did not object to the testimony at
trial, the district court did not make a Petrozziello ruling and
did not make a factual finding as to whether the customers were
coconspirators. When Famania-Roche first raised hearsay concerns
in his Rule 29 motion, the district court responded:
The problem is that rulings that I made are in
the context of the objections that are
presented. . . . There was no issue ever
raised as to the preliminary rulings that must
be made in those cases, nothing of that sort.
But even if I had made preliminary rulings, I
would have said now that the evidence allowed
me to do the conditional – to change the
conditional admission to an actual admission.
As the district court aptly noted, Famania-Roche's failure to object
at trial explains the inadequacy of the record. There is no
evidence of who the customers were, how often they purchased drugs,
and for what purpose those purchases were made. Without this
information, we cannot determine whether Morales-Morales's customers
were coconspirators.
In any event, Famania-Roche has failed to meet any of the
prongs of the plain error test. Aside from the conclusory assertion
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that Morales-Morales's customers were not part of the conspiracy,
Famania-Roche does not muster any evidence, or even argue, that the
predicate for admitting the testimony was not satisfied here. He
also does not explain how the admission of this testimony prejudiced
him. Morales-Morales testified that she had seen him selling drugs
at both Rincón Taíno and Cemí and that she would send her customers
to him when she did not have cocaine available. There is no hearsay
involved in this testimony. The confirmation offered by her
customers that they had successfully purchased cocaine from him adds
little to this account. Accordingly, we conclude that the district
court did not plainly err in admitting Morales-Morales's testimony.
Famania-Roche also challenges the admission of Morales-
Morales's testimony that Famania-Roche controlled the Cemí drug
point and her description of the quantities of drugs sold at the
various drug points on a weekly basis.4 He claims that this
testimony lacked a foundation in personal knowledge. See Fed. R.
Evid. 602. We perceive no such weakness in the testimony. Morales-
Morales operated her own drug point and explained that she was
present at the Coco Bongo Bar where members of the conspiracy
regularly gathered to discuss the quantities of drugs they had sold
at the various drug points. She also testified that she had
4
Both Morales-Morales and Special Agent Meléndez-Cruz
testified that each of the drug points sold an eighth of a kilogram
of cocaine per week. They also testified that the Rincón Taíno
drug point sold an eighth of a kilogram of heroin each week.
-10-
personally seen Famania-Roche selling drugs and sent her customers
to him. No more foundation was required to show that her testimony
was based on personal knowledge of the inner-workings of the
conspiracy of which she was a member.5
B. Famania-Torres's Testimony
Famania-Roche also challenges the admission of testimony
by his uncle, Michael Famania-Torres, a local police officer.
Famania-Torres testified that he had been involved in investigating
the Santiago-Báez organization. The following colloquy then
occurred:
Government: Sir, as part of your
investigation, knowledge and per your
intervention and investigation, do you know if
Mr. Jerry Famania was involved in this gang?
Famania-Torres: Correct.
Government: In what capacity?
Famania-Torres: He operated the drug point at
the Rincon Taino housing project at the
midpoint as a seller.
Government: And what else, if you know?
Famania-Torres: With trafficking and
transportation of weapons at different points.
Government: Are you related in some form with
Mr. Famania?
5
Famania-Roche attempts to characterize Morales-Morales as a
non-member of the conspiracy, citing the fact that she did not pay
rent to Santiago-Báez. She was apparently permitted to run her
drug point rent-free out of respect for her father. Nonetheless,
she testified that Lala's Café, the drug point she owned and
operated, was part of the Santiago-Báez organization.
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Famania-Torres: Yes.
Government: What is the relation?
Famania-Torres: He is my nephew.
On cross-examination, Famania-Torres admitted that he had never
arrested his nephew and had never seen him transporting weapons or
selling drugs.
On appeal, Famania-Roche characterizes the evidentiary
flaw in his uncle's testimony by stating that it "lacked any
probative value, R. Evid. 401, yet presented the danger of unfair
prejudice." It is difficult to know what his argument is. Taking
a generous view, the appellant may be arguing that his uncle's
testimony about his nephew's involvement in the conspiracy had no
probative value because, in the absence of any personal knowledge
of his nephew's involvement, there was no foundation for his
testimony.
The government's brief on appeal did not understand this
to be the argument. Even if that is the argument Famania-Roche is
making, the record is unclear whether or not Famania-Torres had
personally observed his nephew's conduct in relation to the
conspiracy,. It may be that his testimony was based entirely on
statements that he had heard from others during the course of his
investigation. We have no idea whether the informants who testified
at trial, or informants who did not testify, or other investigators
may have passed along the information regarding Famania-Roche's
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role. Thus we have no way to determine whether, for example, the
information may be admissible under Federal Rule of Evidence
801(d)(2)(E) as coconspirator statements. It would have been
preferable for the government to have laid a proper non-hearsay
foundation. Cf. United States v. García-Morales, 382 F.3d 12, 17
(1st Cir. 2004) ("Hearsay does not become admissible merely because
it is provided by a government agent in the form of an overview of
the evidence."). There is a risk here that this was improper
testimony for some of the same reasons we have condemned the use of
improper overview testimony. See Rodriguez, 525 F.3d at 95
(collecting cases).
Nonetheless, Famania-Roche did not object to the
testimony at trial and, thus, he must demonstrate plain error. He
cannot meet the prejudice prong of the plain error test. Famania-
Torres's testimony was entirely cumulative of the testimony of the
government's other three witnesses. See United States v. De La
Cruz, 514 F.3d 121, 132 (1st Cir. 2008) ("[I]t is difficult to
imagine how the district court's failure to strike what, in essence,
amounted to cumulative testimony could have prejudiced Defendant.").
The uncle's testimony offered no additional specificity or detail.
Given the strength of the government's case, which we further
discuss in our sufficiency analysis below, and the limited impact
of Famania-Torres's generalized statements, we are convinced that
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the verdict was not affected by any error in admitting this
testimony. See Rodriguez, 525 F.3d at 97.
III.
We review Famania-Roche's challenge to the sufficiency of
the evidence de novo. United States v. Boulerice, 325 F.3d 75, 79
(1st Cir. 2003). In conducting our analysis, we consider "the
evidence in the light most amiable to the government, and taking all
reasonable inferences in its favor, [determine whether] a rational
factfinder could find, beyond a reasonable doubt, that the
prosecution successfully proved the essential elements of the
crime." United States v. O'Brien, 14 F.3d 703, 706 (1st Cir. 1994).
To prove a conspiracy to distribute drugs, the government
was required to show that a conspiracy existed, that the defendant
had knowledge of it, and that the defendant participated voluntarily
in it. United States v. Llinas, 373 F.3d 26, 30 (1st Cir. 2004).
More specifically, to establish that a
defendant belonged to and participated in a
conspiracy, the government must prove two
kinds of intent: intent to agree [with her co-
conspirators] and intent to commit the
substantive offense. Such proof may consist
of circumstantial evidence, including
inferences from surrounding circumstances,
such as acts committed by the defendant that
furthered the conspiracy's purposes. The
government need not prove that a co-
conspirator knew all of the details or
participated in all of the objectives of the
plan.
Id. (quoting United States v. Gomez-Pabon, 911 F.2d 847, 853 (1st
Cir. 1990)); see also United States v. Boylan, 898 F.2d 230, 241-42
-14-
(1st Cir. 1990) ("The conspiratorial agreement need not be express
so long as its existence can plausibly be inferred from the
defendants' words and actions and the interdependence of activities
and persons involved.").
Relying on our decision in United States v. DeLutis, 722
F.2d 902, 906-07 (1st Cir. 1983), where we stated that "a single
sale of drugs without more does not establish a conspiracy,"
Famania-Roche argues that the evidence in this case "proves no more
than mere simple sale of drugs." We disagree.
This clearly is not a case involving a single sale of
drugs by the defendant. Moreover, it is not a case where the
evidence shows only a buyer-seller relationship between Morales-
Rodríguez and Famania-Roche, where the latter was some kind of
independent operator. Morales-Rodríguez testified that he had
purchased drugs on many occasions from Famania-Roche at the Rincón
Taíno drug point. The testimony at trial further established that
Santiago-Báez controlled drug sales in the town, and at Rincón Taíno
in particular, and that without his permission, those who sold drugs
within the town would be killed. Morales-Morales testified that
Rincón Taíno and Cemí, where she had seen Famania-Roche selling
drugs, were drug points within the Santiago-Báez organization. She
explained that she sent her customers to buy from Famania-Roche when
she did not have cocaine available. She also described Famania-
Roche placing his gun on the bar at the Coco Bongo, as was customary
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for members of the drug organization. This evidence is sufficient
to establish Famania-Roche's role as a drug seller within the
conspiracy.
There was also ample evidence of Famania-Roche's role as
a weapons handler for the Santiago-Báez organization. Morales-
Rodríguez stated that Famania-Roche had once picked up a shotgun,
on orders of Santiago-Báez and another leader of the conspiracy,
from Morales-Rodríguez's house, where the weapon had been stored by
the organization. Agent Meléndez-Cruz also testified regarding
Famania-Roche's agreement to sell firearms to a confidential
informant. Although this sale was never consummated, the jury could
have inferred from Famania-Roche's explanation that the guns were
in use by others and that his inability to deliver the weapons on
the agreed upon date resulted from the needs of other members of the
conspiracy at the time.
Given this testimony regarding Famania-Roche's
involvement with both drugs and weapons, we are satisfied that the
government introduced ample evidence from which the jury could
reasonably conclude beyond a reasonable doubt that Famania-Roche was
a voluntary participant in the Santiago-Báez organization.
Accordingly, we affirm the conviction.
So ordered.
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