United States Court of Appeals
For the First Circuit
No. 07-1575
UNITED STATES OF AMERICA,
Appellee,
v.
JULIO CARRION SANTIAGO,
Defendant, Appellant.
____________________
No. 07-1718
UNITED STATES OF AMERICA
Appellee,
v.
PEDRO MIRANDA
Defendant, Appellant.
___________________
No. 07-1728
UNITED STATES OF AMERICA
Appellee,
v.
JUAN NUNEZ,
Defendant, Appellant.
____________________
No. 07-2017
UNITED STATES OF AMERICA,
Appellee,
v.
JOSE O. RODRIGUEZ,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Lynch, Chief Judge,
Boudin and Lipez, Circuit Judges.
Janet Hetherwick Pumphrey, by appointment of the court, for
appellant Julio Carrion Santiago.
John F. Palmer, by appointment of the court, and Law Office of
John F. Palmer on brief for appellant Pedro Miranda.
Roger Witkin, by appointment of the court, for appellant Juan
Nunez.
Robert L. Sheketoff, by appointment of the court, for
appellant Jose O. Rodriguez.
Daniel Steven Goodman, Criminal Division, Appellate Section,
Department of Justice, with whom Michael J. Sullivan, United States
Attorney, and William F. Bloomer, Assistant United States Attorney,
were on consolidated brief for appellee.
March 19, 2009
BOUDIN, Circuit Judge. This appeal arises from the
convictions of five co-defendants (only four seek review) on drug
conspiracy charges and (as to one defendant) on associated firearms
charges. We begin with a brief summary of the background and
proceedings and return later to the evidence pertinent to
sufficiency claims and to other trial and sentencing claims raised
by the defendants.
The case began with a year-long investigation into a
large-scale heroin distribution operation in or around Lowell,
Massachusetts, starting in summer 2003 and ending with arrests in
October 2004. The investigation encompassed the five defendants
who went to trial and seven others who were indicted but pled
guilty. The four appellants before us are Julio Carrion Santiago,
Pedro Miranda, Juan Nunez and Jose Rodriguez; the fifth defendant
who was tried but has withdrawn his appeal is Carlos Sanchez.
The investigation was led by the U.S. Drug Enforcement
Agency ("DEA") but included state and local police. In its course,
agents tracked Santiago's van with a GPS unit and conducted visual
surveillance of it; conducted court authorized wiretaps of cell
phones of the defendants; tracked and observed transactions among
the defendants revealed by cell phone conversations; and ultimately
seized Santiago's van (seizing concealed drugs) and searched his
residence and those of Rodriguez (seizing drugs) and Miranda
(seizing paraphernalia).
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In the search of Santiago's residence, officers found a
drug press in the hallway between two apartments--one of them
Santiago's--and, in the attic above the press, a 9 millimeter gun
and an ammunition clip along with heroin, a digital scale, a bag
with silencers and a magazine for a smaller weapon. They found
additional paraphernalia inside Santiago's apartment. Only in
Nunez's case were no drugs or paraphernalia seized.
Nunez, Santiago, Rodriguez, Miranda and eight other
defendants were charged with conspiracy to distribute heroin and to
possess heroin with intent to distribute, 21 U.S.C. §§ 846,
841(a)(1), 841(b)(1) (2006). Santiago was also charged with
possessing firearms in furtherance of a drug trafficking crime, 18
U.S.C. § 924(c) (2006), and by superceding indictment with
possession of unregistered firearms, 26 U.S.C. § 5861(d) (2006).
A ten day jury trial ensued for the five defendants who declined to
plead guilty.
The jury convicted all five on the conspiracy count and
found that the conspiracy involved at least one kilogram of heroin,
triggering a statutory maximum sentence of life imprisonment. 21
U.S.C. §§ 846, 841(b)(1). Santiago was found guilty on both
weapons charges. The district court at sentencing made
individualized drug quantity determinations. On his three counts,
Santiago was sentenced to 248 months' imprisonment. On the
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conspiracy count, Rodriguez, Nunez and Miranda were sentenced to
264, 151 and 72 months, respectively.
On appeal, Santiago disputes the sufficiency of the
evidence to support the jury's finding that the amount of drugs was
at least one kilogram of heroin. Review, of course, requires that
we assume that the jury accepted the government's evidence and drew
inferences in its favor. United States v. Sherman, 551 F.3d 45, 49
(1st Cir. 2008) (citation omitted). A rational jury could easily
find that the conspiracy involved at least a kilogram of heroin.
Almost a half kilogram (493.3 grams) was seized from
Santiago's van; another 115.9 grams were found in the attic of his
building. An additional 180.7 grams were seized from Reynaldo
Rivera (a member of the conspiracy who pled guilty), and an
undercover agent purchased 135.4 grams through Rivera. Agents
seized 19.8 grams that they saw Santiago place in the door of
Rivera's car. And agents recovered almost 60 grams from Rodriguez.
That adds up to over a kilo--not including additional amounts
seized from other co-conspirators.
Santiago says that the drugs found in the attic should
not be attributed to the conspiracy and--in a different sufficiency
argument--says that the guns in the attic should not be attributed
to him. While there were two apartments upstairs in Santiago's
building, Santiago was the only tenant on the floor below the attic
at the time of the search and had been for five months. The
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building manager testified that he knew the attic existed but he
had not been there for many years, and he was not aware that it no
longer had pull-down access stairs.
The jury knew about Santiago's drug dealing, the
proximity of his apartment to the attic, the corresponding
paraphernalia in his apartment, the concealment of access to the
attic and the absence of others likely to have used the attic.
Under these circumstances, the jury was free to reason that the
drugs in the attic were part of the conspiracy and that the gun was
constructively possessed by Santiago. See United States v. Barnes,
890 F.2d 545, 549-50 (1st Cir. 1989), cert. denied, 494 U.S. 1019
(1990); United States v. Calle-Cardenas, 837 F.2d 30, 32 (1st
Cir.), cert. denied, 485 U.S. 1024 (1988).
Santiago also says that nothing shows that the gun seized
in the attic was used in furtherance of his drug trafficking.
Relatedly, he objects to a state trooper's testimony that
individuals who have drugs keep firearms because "[i]t is a
business that involves a large quantity of money" leading to a
"number of instances in which robberies are committed against each
individual." Santiago's objection to the trooper's testimony is
not developed but in any event is unpersuasive, and the sufficiency
claim fails even if the testimony is disregarded.
The trooper's testimony merely explained circumstantial
evidence from which the jury could have drawn the obvious inference
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that the gun was there to protect the stockpile of drugs. The
drugs and gun were concealed together within easy reach of the
attic opening; in addition, the gun was loaded and unregistered.
See Sherman, 551 F.3d at 50-51. The jury's inference was entirely
appropriate. United States v. Garner, 338 F.3d 78, 81 (1st Cir.),
cert. denied, 540 U.S. 1084 (2003); United States v. Luciano, 329
F.3d 1, 6 (1st Cir. 2003).
Santiago and Miranda both object to testimony by Marcos
Chavez, who acted as an undercover agent during the investigation;
he testified at trial as to the meaning of code words or phrases
used by the defendants, primarily to designate drug quantities.
The objections are that Chavez had not been qualified as an expert,
that no advance disclosure of expert testimony was provided, see
Fed. R. Crim. P. 16, and that inferences drawn were speculative and
their admission an abuse of discretion.
Chavez testified as a lay witness: such witnesses may
give opinions as long as they are "rationally based on the
perception of the witness," are "helpful to . . . the determination
of a fact in issue," and are "not based on scientific, technical,
or other specialized knowledge within the scope of Rule 702." Fed.
R. Evid. 701. Testimony about coded language--like, for example,
testimony about vehicle speed--can be admissible, depending on its
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content and other circumstances, either as lay or expert
testimony.1
Here, Chavez had been involved in the investigation,
listened to over 90 percent of the intercepts, learned voices and
patterns, and heard and used the coded language in his undercover
drug buys relating to the investigation. "Rule 701 . . . is meant
to admit testimony based on the lay expertise a witness personally
acquires through experience, often on the job." United States v.
Maher, 454 F.3d 13, 24 (1st Cir.), cert. denied, 549 U.S. 1025
(2006); United States v. Ayala-Pizarro, 407 F.3d 25, 28 (1st Cir.),
cert. denied, 546 U.S. 902 (2005) (quoting Fed. R. Evid. 701
advisory committee's note).
Further, various of the code word interpretations were
borne out by the conduct of the defendants. For example, Chavez's
interpretation of Rodriguez's request for "$60 out of the bank" was
supported by the seizure of 60 grams of heroin (10 from his person
and 50 from his home) shortly thereafter. Far from being
speculative, Chavez's interpretations corresponded to locations,
drug quantities and the like. There was no error in admitting the
testimony.
1
Compare United States v. Rivera-Rosario, 300 F.3d 1, 17 (1st
Cir. 2002) (allowing expert testimony about the meanings of "code
words"), and United States v. Hoffman, 832 F.2d 1299, 1310 (1st
Cir. 1987) (same), with United States v. Grullon, 545 F.3d 93, 95-
96 (1st Cir. 2008) (allowing lay opinion testimony on meaning of
coded language), and United States v. Gaines, 170 F.3d 72, 77-78
(1st Cir. 1999) (same).
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On cross-examination, Miranda's counsel questioned Chavez
about the use of coded language in the affidavit that agents had
prepared to support the wiretap warrant and, on redirect, the
prosecutor asked Chavez whether the agents who provided the
affidavit had included interpretations of the codes' meanings,
which Chavez answered affirmatively. Miranda objects to this
affirmative response as hearsay and a violation of the
Confrontation Clause.
The brief reference to the affidavit was not offered for
the truth of anything said in the affidavit--the interpretations
themselves were not elicited--and so presents no hearsay problem.
Fed. R. Evid. 801. Likewise there is no Confrontation Clause
problem. United States v. Rodriguez-Duran, 507 F.3d 749, 769 n.28
(1st Cir. 2007), cert. denied, 128 S. Ct. 1726, 1729 (2008). And,
if this single answer had been error, it would have been harmless
beyond a reasonable doubt in light of the overwhelming evidence.
See United States v. Earle, 488 F.3d 537, 546 (1st Cir.), cert.
denied, 128 S. Ct. 423 (2007).
Nunez raises two issues relating to drug quantity.
First, he says that the jury should have been required to make
individual drug quantity findings for each defendant, as opposed to
making a conspiracy-wide quantity determination. Nunez's challenge
to the jury's conspiracy-wide drug finding was not preserved--and
he in fact affirmatively approved the jury instruction--so at best
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our review is only for plain error. United States v. Griffin, 524
F.3d 71, 76 (1st Cir. 2008).
The Supreme Court requires a jury finding as to drug
quantity if it increases the statutory maximum sentence, Apprendi
v. New Jersey, 530 U.S. 466, 490 (2000), assertedly on
constitutional grounds; but whether the statutory maximum sentence
turns on what the conspiracy embraced or on what was foreseeable
separately to each conspirator raises at least questions of
statutory construction. Needless to say, specific jury
determinations as to quantity for each conspirator could be
complicated.
Our recent case law requires that the jury decide the
conspiracy-wide quantity, which establishes the maximum penalty the
district court may impose under the statute. See United States v.
De La Cruz, 514 F.3d 121, 136-37 (1st Cir. 2008); United States v.
González-Vélez, 466 F.3d 27, 40 (1st Cir. 2006).2 Then, at
sentencing, the judge finds the amount reasonably foreseeable to
each defendant, which is used to determine his sentence. United
States v. Malouf, 466 F.3d 21, 26 (1st Cir. 2006), cert. denied,
127 S. Ct. 1892 (2007). That is what happened here and, under our
precedents, this was the correct process.
2
United States v. Wiggin, 429 F.3d 31 (1st Cir. 2005), allowed
an instruction requiring an individualized jury determination, but
the focus of the challenge was to the clarity of the instruction,
id. at 38, and our later decisions govern the question before us.
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Nunez's second claim is that the evidence does not
support the amount that the district court attributed to him at
sentencing--between one and three kilograms. He says that the only
drugs conclusively linked to him were the 493.3 grams seized from
Santiago's van immediately after the final visit by Santiago to
Nunez in New York. Santiago made other visits to him but Nunez
says that it is speculation to assume drugs were involved or to
calculate the amounts. The objection was not preserved at
sentencing so review is for plain error. United States v. Silva,
554 F.3d 13, 21 (1st Cir. 2009).
Nunez says there is no evidence of drugs for any of the
earlier trips, but during at least one of Santiago's trips (in
September 2004) officers observed Santiago and Nunez engage in
behavior similar to that of October 2004 trip where the half kilo
was seized. United States v. Sklar, 920 F.2d 107, 113-14 (1st Cir.
1990) (similarity between transactions permits drug quantity
estimates). Conversations between Nunez and Santiago further
supported the inference that additional drugs were supplied.
As to quantity, the district court took a conservative
approach in attributing only a quarter kilo to each of Santiago's
other trips to Nunez's apartment instead of the nearly half kilo
seized on the final visit--which the pre-sentence report had
recommended as the proper estimate for each trip. The
extrapolation was not rote but reflected similarity between the
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trips, the GPS evidence, the wiretap evidence and the seizure
following the final trip. There was no error.
Finally, Rodriguez challenges only his sentence, and his
only developed claim is for a remand in light of Kimbrough v.
United States, 128 S. Ct. 558 (2007), to give the district court a
chance to evaluate a policy-based objection to the career offender
guideline. Based on drug quantity and criminal history,
Rodriguez's guideline range would have been 110 to 137 months; but
because his record also triggered the career offender guideline,
U.S.S.G. § 4B1.1, the range increased to 360 months to life.
At sentencing, Rodriguez's primary argument was that he
barely qualified as a career offender, one of his predicate
offenses falling almost outside of the guideline's look-back
provision, and that a career offender guideline sentence would be
much higher than the sentences of his more culpable co-defendants.
The district court imposed a below-guideline sentence of 264
months, describing Rodriguez's record as "atrocious" but noting the
need to take into account his co-defendants' shorter sentences.
We have remanded pre-Kimbrough sentences without
preserved claims where "there [was] some explicit indication that
[the district court] might well alter its sentence." United States
v. Boardman, 528 F.3d 86, 87 (1st Cir. 2008). The trial judge's
comments here gave no such indication but strongly suggested, as in
United States v. King, 554 F.3d 177 (1st Cir. 2009), that the judge
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had no doubt "about the soundness of the career offender guidelines
as applied." Id. at 182.
The defendants' convictions and sentences are affirmed.
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