United States v. Santiago

United States Court of Appeals
For the First Circuit

No. 07-2543

UNITED STATES OF AMERICA,

Appellee,

v.

EDDIE SANTIAGO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]

Before
Boudin, John R. Gibson,* and Howard,
Circuit Judges.

James M. Falvey, by appointment of the court, with whom Law
Office of James Falvey was on brief for appellant.
Cynthia A. Young, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief for
appellee.

May 22, 2009

*
Of the Eighth Circuit, sitting by designation.
 BOUDIN, Circuit Judge. This is an appeal by Eddie

Santiago from his conviction and sentence for drug trafficking; the

offense was based on his sale in Springfield, Massachusetts of 99

grams of crack cocaine on May 17, 2004, to a cooperating witness

and in the presence of a second such witness. His defense at trial

was entrapment. The factual background is complicated but, as

Santiago does not challenge the sufficiency of the evidence, the

narrative can be shortened.

The background events involve Santiago and the two

cooperating witnesses--Jason Dixon and his friend Christopher

Ortega. In Spring 2004, Ortega--who had previously been arrested

on drug charges by the Drug Enforcement Administration (“DEA”)--was

working with DEA; Dixon had state drug charges pending against him.

Santiago was working as a driver for Juan Pagan, alleged by the

government to be a major drug trafficker in Springfield.

After a March 2004 controlled drug sale by Pagan to

Ortega, at which Santiago was present, Ortega suggested to DEA that

Dixon could help the agency; Dixon in turn told DEA that Santiago

had said that he could sell Dixon crack for less than what Pagan

charged. The DEA agent instructed Dixon to try to purchase 100

grams of crack from Santiago. Santiago did not answer Dixon's

initial phone call, and the agent attempted over the next several

weeks to learn more about Santiago.

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 On April 14, 2004, at the agent's direction, Dixon placed

another call--recorded by DEA--to Santiago, and Santiago made clear

that he was expecting the call; asked whether he was ready,

Santiago replied, "Yeah, I'm ready for you." When Dixon asked

whether Santiago "could chef it up"--apparently slang for

converting cocaine into crack--Santiago agreed to do it. Although

a meeting was arranged, Santiago cancelled because of a trip to

Puerto Rico.

On May 6, 2004, Dixon called Santiago again, and the two

met later that day (which was not recorded on audio tape, according

to DEA, because of lack of time to put a body wire on Dixon). A

series of recorded phone calls between the two men on May 14 was

followed by another meeting, which was also recorded. The drug

sale did not occur on May 14, either because of confusion about the

amount of drugs or because Santiago spotted a law enforcement

officer following him.

Dixon and Ortega both met with Santiago on May 17, 2004;

at that meeting, recorded on both video and audio tape, Santiago

gave Dixon a package containing 99 grams of crack, and Dixon paid

Santiago $2,500 in DEA funds. Santiago was charged with possessing

with intent to distribute 50 grams or more of cocaine base, and

distributing it. 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iii) (2006).

After a five day jury trial, Santiago was convicted and sentenced

to 180 months' imprisonment. He now appeals.

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 Santiago's main claim on appeal is that he "was denied

the right to present a defense in violation of due process,

compulsory process and confrontation rights" guaranteed by the

Constitution. The government's case rested primarily on live

testimony by two DEA agents and one police officer involved in the

investigation, on videotapes of the May 14 and May 17 meetings, and

on audiotape recordings of telephone conversations between Santiago

and Dixon and Ortega, including a tape of the initial April 14

call.

When Santiago proposed to summon Dixon and Ortega as

witnesses as part of his defense, both men invoked their privilege

against self-incrimination. The district judge conducted voir

dires of both men and concluded that their assertions of privilege

were legitimate; and he declined to let them be questioned before

the jury on the ground that any unprivileged bits and pieces would

merely confuse the jury. The judge also refused Santiago's request

that the videotapes and audiotapes be stricken.

Most of Santiago's legal claims under his main heading

are scattershot contentions easily answered; one deserves some

discussion. It helps frame the issues to understand that at trial

the only question was entrapment. Santiago did not contest handing

over the crack which, absent entrapment, amply supports the crime

charged in light of the quantity involved. United States v.

Clifford, 979 F.2d 896, 899 (1st Cir. 1992) ("The evidence of

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defendant's participation in an offload of such large quantities of

marijuana is sufficient proof that he intended to distribute the

drug."). Santiago does not argue otherwise.

An entrapment defense, not easily established, requires

each of two conditions: first that government agents not only

induced the crime but did so by a degree of pressure or by other

tactics that are improper, United States v. Acosta, 67 F.3d 334,

337 (1st Cir. 1995); and second, that the defendant was not already

predisposed to commit the crime, United States v. Rogers, 102 F.3d

641, 645 (1st Cir. 1996). Given the evidence presented, the

entrapment claim was very thin; whether the assertion of privilege

blocked useful testimony is a different question.

Before turning to that question, Santiago's less

plausible claims can be put aside. First, contrary to Santiago's

suggestion, the government did not offer overview or summary

witness testimony based on inadmissible evidence. Compare United

States v. Casas, 356 F.3d 104, 118-20 (1st Cir. 2004). The agents

who testified about meetings and conversations had first hand-

knowledge of them, having witnessed meetings and listened to

conversations directly or through recordings. Nothing to the

contrary is identified by Santiago.

Second, and again contrary to Santiago's brief,

recordings of what the two informants said were not hearsay offered

in violation of the confrontation clause: the statements of the

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informants were not offered for their truth but as exchanges with

Santiago essential to understand the context of Santiago's own

recorded statements arranging to "cook" and supply the crack.

These statements (also not generally offered for their truth)

comprised admissions by a party and so cannot be hearsay. Fed. R.

Evid. 801(d)(2)(A).1

Third, it was not improper for the agents to testify as

to the meaning of various slang references in statements made by

Santiago or the informants. This can be admitted as lay testimony

from experienced officers, expert testimony or both depending on

circumstances. United States v. Santiago, 560 F.3d 62, 66-67 (1st

Cir. 2009); United States v. Grullon, 545 F.3d 93, 95-96 (1st Cir.

2008). Such testimony of customary usage is no different than

evidence of industry practice in a commercial case. Compare Den

Norske Bank AS v. First Nat'l Bank, 75 F.3d 49, 57-58 (1st Cir.

1996).

Unlike many cases, the government did not call its

informants to testify about their transaction with the defendant,

but this was not required in view of the other evidence. Here, the

transaction itself was easy to prove without calling Ortega or

1
See United States v. Walter, 434 F.3d 30, 35 (1st Cir.
2006)("Crawford [v. Washington, 541 U.S. 36 (2004)] therefore does
not call into question this Court's precedents holding that
statements introduced solely to place a defendant's admissions into
context are not hearsay, and as such, do not run afoul of the
Confrontation Clause."); United States v. McDowell, 918 F.2d 1004,
1007 (1st Cir. 1990).

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Dixon given the videotape, surveillance and arrest. Possibly the

government knew that its witnesses were unlikely to testify without

some invocation of the privilege; possibly it saw some advantage in

avoiding attacks on their credibility and making the police

testimony and tapes central. In any event, nothing prevents the

government's approach.

This brings us to the privilege issue. Santiago says

correctly he has a constitutional right to present a complete

defense, Holmes v. South Carolina, 547 U.S. 319, 324 (2006), but

that right is subject to well-settled limitations, which include

respecting privileges that pertain to witnesses whom the defendant

would like to call. E.g., United States v. Bowling, 239 F.3d 973,

976 (8th Cir. 2001). So the basic question here is whether the

district court erred in sustaining, in the manner it did, the fifth

amendment privilege asserted by each of the informants.

Santiago's first argument is that the informants had no

such privilege because they had signed confidential source

agreements with the government. Santiago quotes a passage in

Dixon's agreement stating:

I understand that I have no immunity or
protection from investigation, arrest, or
prosecution for anything that I say or do,
except for activities specifically authorized
by my Controlling Investigators pursuant to my
cooperation with DEA.

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He also cites a case saying that a witness who has been granted

immunity can be held in contempt for failing to testify. See In re

Grand Jury Proceedings, 835 F.2d 375, 376 (1st Cir. 1987).

There are various problems with this argument but one is

decisive. The quoted passage is not a grant of immunity to Dixon

except (possibly and by inference) for "specifically authorized"

acts. This gave no protection to Dixon as to related criminal

conduct not authorized by the agents--there was evidence that he

smoked marijuana during one incident--or other criminal conduct

which the defense might wish to develop in order to discredit the

witness. Nor is there any indication that Ortega had a general

grant of immunity that would preclude his claim of privilege.

Santiago was not, as he claimed in the district court

(and hints at on appeal), entitled to call the witnesses merely to

have them assert their privilege before the jury. Doing so would

not infringe their privilege (as it would with a defendant, United

States v. Carella, 411 F.2d 729, 731 (2d Cir. 1969) (Friendly,

J.)), but in ordinary circumstances, no relevant rational inference

can be drawn about the underlying facts because the privilege can

be claimed by an innocent person. As United States v. Rivas

Macias, 537 F.3d 1271, 1275 n.3 (10th Cir. 2008), sums up the

matter:

Because a jury may not draw any legitimate
inferences from a witness' decision to
exercise his Fifth Amendment privilege, we
have repeatedly held that neither the

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 prosecution nor the defense may call a witness
to the stand simply to compel him to invoke
the privilege against self-incrimination.

Finally, Santiago argues--and this is his only

substantial argument on appeal--that the district court should have

required the informants to be questioned before the jury on a

question-by-question basis instead of excluding their testimony

entirely. Blanket claims of privilege are not favored as to mere

witnesses who may have some unprivileged information to contribute.

In re Grand Jury Matters, 751 F.2d at 17 n.4. And the Rivas Macias

problem could be avoided by screening out based on voir dire

questions as to which privilege would be claimed.

In this case, as the government explains, the court did

allow a question by question interrogation of Dixon outside the

presence of the jury. It was Dixon who was most likely to have

relevant information since he was the purported purchaser who dealt

at greatest length with Santiago. But since Dixon himself did not

assert the privilege as to every question, Santiago seemingly is

arguing that he should have been allowed to question Dixon in front

of the jury to derive what information he could.

The district judge did not allow this because he felt

that the information that Dixon was willing to supply (as disclosed

by the voir dire) was so choppy and limited that it would

contribute more confusion for the jury than it would assist in

illuminating the issues. This is the kind of fact-specific

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judgment that judges make all the time, and reviewing courts

typically accord great latitude to these on-the-spot judgments.

Cameron v. Otto Bock Orthopedic Indus., Inc., 43 F.3d 14, 16 (1st

Cir. 1994).

We reserve the question of how the matter might stand if

Santiago established that Dixon likely had important information in

aid of Santiago's entrapment defense that was not privileged and

could likely have been brought out by a step-by-step examination in

front of a jury. It is a serious matter to deprive a defendant of

a fair opportunity to establish a merits defense; inconvenience and

the risk of some confusion might not outweigh the benefits.

Constitutional rhetoric aside, to do so might well (depending on

the facts) be an abuse of discretion.

But Santiago had the benefit of a practice-run outside

the jury, and his brief does not even begin to show that Dixon had

specific pieces of unprivileged information that would have

substantially helped the entrapment defense. Santiago did make a

summary proffer in the district court but only one of his

allegations is even promising--that (allegedly) Dixon repeatedly

appealed to Santiago privately about his legal troubles and need

for funds--but even proof of this might well do Santiago no good.2

2
To constitute undue pressure, this would have to rise to a
very high level, United States v. Turner, 501 F.3d 59, 70 (1st Cir.
2007), even assuming dubitante that pressure by an informant could
be attributed to the government, United States v. Teleguz, 492 F.3d
80, 84-85 (1st Cir. 2007).

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 The larger problem is that there is no evidence cited in

Santiago's brief that Dixon was prepared to testify to this effect.

Santiago was free in the voir dire to ask the judge to explore

whether Dixon would testify on this subject without claiming his

privilege. Indeed, Santiago, without testifying, could presumably

have given his lawyer the details of alleged acts of pressure

needed for an effective voir dire and a detailed proffer.

Absent some indication that Dixon would testify as to

undue pressure, putting him on the stand as an adverse witness and

asking him leading questions would have allowed the defense to put

its story before the jury with no meaningful cross examination.

The district judge made clear that this was a concern. Possibly

there might be special situations in which a judge might allow the

tactic; but nothing that would make it appropriate, assuming it

ever could be, was established here.

As to Ortega, the situation is largely similar.

Santiago's proffer was of the same character--the only potent

entrapment allegation (and this without any detail) was of promises

and inducements made to Santiago. The government's counter-proffer

was, that if Ortega were to testify in full, he would testify that

he knew Santiago to be a crack and cocaine dealer who had

previously offered to sell Ortega drugs. Nothing indicates that

Ortega was prepared to confess he applied any undue or improper

pressure.

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 It is worth adding that the initial conversation between

Dixon and Santiago had been recorded and reflected that Santiago

with little hesitation was willing to carry through with supplying

the crack. Nor did anything in the known dealings, played out over

the ensuing weeks, suggest serious hesitancy. And the recorded

conversations confirmed Santiago's knowledge of cooking crack and

his willingness to do it here. The district judge handled the

privilege matter properly and there is no indication of error, let

alone prejudicial error.

This brings us to Santiago's second main claim on appeal:

that the district court erred in allowing the government to offer,

in response to the entrapment defense, evidence of a 1997 cocaine

conviction of Santiago in state court. At trial, Santiago argued

against admission on the ground that the conviction was almost a

decade old and involved powder cocaine, not crack; on appeal he

adds that, when it came to sentencing, the district court refused

to rely on the conviction.3

An entrapment claim allows the government to counter with

evidence that the defendant was predisposed to commit the crime and

past convictions can easily be relevant to this assessment. See

Fed. R. Evid. 404(b); United States v. Reed, 977 F.2d 14, 17 (1st

3
After the jury verdict, the government sought to use the same
conviction as the basis for an enhanced sentence for Santiago, 21
U.S.C. § 851(a)(1), but after a hearing the district judge refused,
finding that Santiago had received inadequate assistance of counsel
in the state court proceeding. See 21 U.S.C. § 851(d)(2).

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Cir. 1992) ("Reed's prior cocaine possession conviction was, at

very least, arguably admissible under Section 404(b) to help the

government meet its burden to establish that he was predisposed to

sell cocaine.") (emphasis in original). That the conviction was

for powder cocaine (as the jury was told) and some years before the

present crack sale lessened its weight, but the judge was still

free to deem it more probative than prejudicial. United States v.

Van Horn, 277 F.3d 48, 56-58 (1st Cir. 2002).

As for any inadequacy of his state-court counsel,

Santiago did not urge this objection when the government offered

the conviction at trial, so review is only for plain error.

Whether or not any asserted error is deemed plain, the prior

conviction cannot be shown to have likely altered the outcome, let

alone given rise to a miscarriage of justice--both requirements

where no timely objection was made. United States v. Olano, 507

U.S. 725, 735-36 (1993).

On the contrary, the known evidence relevant to

entrapment contained nothing to suggest that the government had

engaged in misconduct. Absent misconduct, Santiago's alleged lack

of predisposition did not matter. True, a prior conviction is

strong medicine, and potentially prejudicial, whenever there is

doubt whether the defendant did the crime currently charged. Here

the transaction was amply witnessed and taped as well, so the prior

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conviction lacks this sting and mattered only if undue agent

pressure were shown.

Santiago's last claim is that he should be re-sentenced

under the new and lowered crack guidelines adopted on November 1,

2007. To secure consideration of such a claim, Santiago must in

the first instance file a motion with the sentencing court pursuant

to 18 U.S.C. § 3582(c)(2). See United States v. Lipscomb, 539 F.3d

32, 43 n.9 (1st Cir. 2008); United States v. Chandler, 534 F.3d 45,

51 (1st Cir. 2008). Our dismissal of this appeal is without

prejudice to such a motion.

Affirmed.

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