United States Court of Appeals
For the First Circuit
Nos. 08-1124, 08-1125
UNITED STATES OF AMERICA,
Appellee,
v.
EMILIO CORREA-ALICEA,
GERALDO SANTIAGO-TORRES,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Torruella, Lipez, and Howard,
Circuit Judges.
Vivianne M. Marrero, Research and Writing Specialist, with
whom Joseph C. Laws, Jr., Federal Public Defender, and Patricia
A. Garrity, Assistant Federal Public Defender, were on brief, for
appellant Correa-Alicea.
Rafael F. Castro-Lang for appellant Santiago-Torres.
Luke Cass, Assistant United States Attorney, with whom Rosa
Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez-
Sosa, Assistant United States Attorney, Chief, Appellate
Division, were on brief, for appellee.
October 27, 2009
LIPEZ, Circuit Judge. After a six-day trial, appellants
Emilio Correa-Alicea and Geraldo Santiago-Torres were convicted of
conspiracy to possess with intent to distribute certain narcotics
as part of a drug point operating in the Arístedes Chavier public
housing project in Ponce, Puerto Rico.1 See 21 U.S.C. §§
841(a)(1), 841(b)(1)(A), 846, 860. Correa-Alicea was sentenced to
a 360-month term of imprisonment, and Santiago-Torres was sentenced
to a 324-month term. In this consolidated appeal, Correa-Alicea
raises several challenges to his sentence, and Santiago-Torres
argues that the cumulative effect of a number of trial errors
requires a new trial. We affirm in all respects.
I.
We recite the facts in the light most favorable to the
verdict. United States v. Flores-de-Jesús, 569 F.3d 8, 16 (1st
Cir. 2009).
Between November 2005 and November 2006, approximately
six drug points operated at the Arístedes Chavier Housing Project.
Appellant Correa-Alicea was "in charge" of one of the drug points,
and appellant Santiago-Torres was a runner at that point, although
he also sold drugs on occasion. Correa-Alicea's drug point
operated every day of the year, from 6:00 or 7:00 a.m. until 11:00
1
Correa-Alicea and Santiago-Torres were indicted along with
six co-defendants. The six co-defendants entered into plea
agreements, while Correa-Alicea and Santiago-Torres proceeded to a
joint trial.
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p.m., and had a large number of customers daily. The drug point
sold cocaine base as well as other narcotics.
At trial, two government informants testified as to
controlled purchases they had made from Correa-Alicea's drug point,
and the court admitted into evidence the audio recordings of those
purchases. Angélica Colón-González, a lifelong resident of the
housing project, testified that she had seen appellants selling
drugs to others behind her house in the housing project. She
stated that she had known appellants her entire life, although on
cross-examination, she clarified that she had known Santiago-Torres
for three years. She began cooperating with the DEA in early 2006,
and on February 16, 2006, she made a controlled drug purchase of
six large packages, each of which contained twenty-five to
twenty-six individual packages of cocaine base. Although she and
the seller, Sergio Martínez, had agreed the previous day that she
would purchase fifteen large packages, he had only four packages
available on February 16. Martínez then called appellant Santiago-
Torres to see whether Santiago-Torres had any additional drugs, and
later that day Santiago-Torres brought Colón-González two more
packages of cocaine base. The parties stipulated that the net
weight of the cocaine base purchased in the February 16 transaction
was 17.1 grams.
Another long-time resident of the housing project, Javier
Ortiz-Cruz, had grown up with Correa-Alicea and had known him for
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most of his life, and had known Santiago-Torres for more than
fifteen years. Ortiz-Cruz sold heroin and crack at Correa–Alicea’s
drug point in the fall of 2005, during which time Santiago-Torres
also acted as a drug runner and seller. Ortiz-Cruz began
cooperating with the DEA in 2006, and, on April 12, 2006, he made
a controlled purchase of fifteen packets of heroin.2 On May 4,
2006, Ortiz-Cruz made a purchase of eight packets of cocaine base
from Santiago-Torres, whom he identified as one of Correa-Alicea’s
sellers. Correa-Alicea was also present at this purchase, and the
witness identified both Correa-Alicea and Santiago-Torres on the
audio recording of the purchase. The parties stipulated that the
net weight of the cocaine base purchased in the May 4 transaction
was 24.3 grams.
The government also presented the testimony of Eddie
Vidal-Gil, a Puerto Rico Police Department agent in charge of the
investigation conducted at the housing project. The district court
accepted Agent Vidal-Gil as an expert on drug trafficking. Vidal-
Gil testified that Correa-Alicea's drug point sold cocaine base in
2
The government acknowledges in its brief that Ortiz-Cruz
provided inconsistent testimony as to whom he purchased heroin from
on April 12. On direct examination, he stated that he bought drugs
from "Colin [Correa-Alicea] and Geraldo [Santiago-Torres]" on or
about April 12. However, he subsequently claimed that he had
purchased the drugs on April 12 "[f]rom Colin," which he then
repeated on cross-examination. The government now takes the
position that the April 12 purchase did not involve Santiago-Torres
at all, noting that the transcript of the audio recording of this
purchase does not list Santiago-Torres as a speaker.
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small plastic bags, each with a net weight of .07 grams. He
further testified, over defense counsel's objection, as to the
quantity of drugs sold during his surveillance of the drug point:
Q Okay. And during the times that you
actually performed surveillance at the
Defendants' drug point, how many buys of those
little baggies did you see occur during the
time period that you were looking at the drug
point?
A Well, so many that I couldn't really
count them. I would say in a period of 25
minutes or half an hour that I would be
surveilling the drug point, many more than 10,
15, of these small bags containing crack would
be sold in that period of time.
The jury found appellants guilty of conspiracy to possess
with intent to distribute fifty grams or more of cocaine base and
detectable amounts of cocaine and heroin in the housing project,
within 1,000 feet of a public school. See 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A), 846, 860. At sentencing, the district court found
Correa-Alicea accountable for in excess of 4.5 kilograms of cocaine
base, and sentenced him to a prison term of 360 months. In a
separate sentencing proceeding, the court found Santiago-Torres
accountable for in excess of 1.5 kilograms of cocaine base, and
sentenced him to a 324-month term.
On appeal, Correa-Alicea challenges his sentence, and
Santiago-Torres contends that his conviction should be reversed.
We address each appellant's claims in turn.
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II.
A. Correa-Alicea's Sentence
Correa-Alicea's Presentence Investigation Report (PSR)
recommended that he be held accountable for approximately six
kilograms of cocaine base over a one-year period. The PSR did not
explain how it reached this drug-quantity determination, but
instead merely stated that the finding was based on "the evidence
presented at trial, and the testimony of drug expert Eddie Vidal."
Correa-Alicea filed objections to the PSR, contending
that the drug-quantity finding was incorrect because it was based
on unreliable expert witness testimony from Agent Vidal-Gil. At
the sentencing hearing, after argument from counsel on this point,
the district court adopted the PSR's recommendation and found that
Correa-Alicea was responsible for in excess of 4.5 kilograms of
crack cocaine. Like the PSR, the district court did not explain
how it reached its drug-quantity determination, but instead simply
stated that its finding was based on "the evidence presented at
trial."
Based on the finding that Correa-Alicea was responsible
for in excess of 4.5 kilograms of cocaine base, the district court
assigned him a base offense level of 38. U.S.S.G. § 2D1.1(c)(1).
The court applied a one-level enhancement because the offense was
committed in a protected location, U.S.S.G. § 2D1.2(a)(2), and a
three-level enhancement because Correa-Alicea was a leader in the
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criminal activity, U.S.S.G. § 3B1.1(b), for a total offense level
of 42. Combined with a Criminal History Category of I, this
offense level resulted in a guidelines imprisonment range of 360
months to life, and the court sentenced Correa-Alicea to a prison
term of 360 months.
B. Calculating Drug Quantity
Under the sentencing guidelines, the base offense level
largely depends upon the total drug quantities involved in the
offense. U.S.S.G. § 2D1.1(c). If the quantity of drugs seized
does not accurately reflect the scale of a drug-distribution
conspiracy, the district court must "approximate the [total]
quantity of the controlled substance." U.S.S.G. § 2D1.1, cmt.
n.12. Because Correa-Alicea was convicted of conspiring to
distribute controlled substances, he is responsible "not only for
the drugs he actually handled but also for the full amount of drugs
that he could reasonably have anticipated would be within the ambit
of the conspiracy." United States v. Santos, 357 F.3d 136, 140
(1st Cir. 2004).
A district court's finding as to drug quantity "need only
be by a preponderance of the evidence and is not required to be an
exact determination but rather only a reasoned estimate."
Rodríguez, 525 F.3d at 107; see also United States v. Laboy, 351
F.3d 578, 584 (1st Cir. 2003) (holding that when "it is impossible
or impractical to obtain an exact drug quantity for sentencing
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purposes, a reasoned estimate will suffice"). The sentencing court
has "broad discretion in determining which data are sufficiently
dependable for sentencing purposes." United States v. Rivera-
Maldonado, 194 F.3d 224, 228 n.2 (1st Cir. 1999). Although the
court "may rely on reasonable estimates and averages" to reach its
drug-quantity determination, those estimates must possess adequate
indicia of reliability and demonstrable record support. Id. at
228. We "cannot uphold a drug quantity calculation on the basis of
hunch or intuition." United States v. Marrero-Ortiz, 160 F.3d 768,
780 (1st Cir. 1998).
We review the district court's factual finding as to drug
quantity for clear error. Rodríguez, 525 F.3d at 107. In
reviewing the court's drug-quantity finding, our task is to
"determine whether the government presented sufficient reliable
information to permit the court reasonably to conclude that
[Correa-Alicia was] responsible for a quantity of drugs at least
equal to the quantity threshold for the assigned base offense
level." United States v. Barnett, 989 F.2d 546, 553 (1st Cir.
1993); see also United States v. Pizarro-Berríos, 448 F.3d 1, 8
(1st Cir. 2006) (holding that if a district court makes an
erroneous factual finding under the sentencing guidelines, yet
"there is enough evidence to support the alternative explanation
for the court's finding, the error would be harmless and there
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would be no reason to remand to the district court when the result
will be the same.").
C. Correa-Alicea's Challenge to the Drug-Quantity Determination
Correa-Alicea argues that the district court erroneously
found that he was individually responsible for more than 4.5
kilograms of cocaine base. Relatedly, he challenges the admission
of Agent Vidal-Gil’s testimony, which he claims provided the basis
for the court's drug-quantity determination. He argues that Vidal-
Gil's testimony was unreliable and not based on recognized
scientific techniques, and therefore was improperly admitted as
expert testimony. The government responds that, even if Vidal-
Gil's testimony was unreliable, an alternate calculation based on
the stipulated quantities of cocaine base purchased in two
controlled transactions adequately supports the district court's
4.5 kilogram finding. We agree with the government's contention.
Because we conclude that the district court's drug-quantity
determination is sufficiently supported by reliable evidence
independent of Vidal-Gil's testimony, we need not reach the
question of whether the district court erred in admitting Vidal-
Gil's testimony. See Barnett, 989 F.2d at 553; see also
Pizarro-Berríos, 448 F.3d at 8.
At trial, the parties stipulated to the quantity of
cocaine base recovered from each of two controlled purchases: on
February 16, 2006, Colón-González purchased cocaine base with a net
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weight of 17.1 grams, and on May 4, 2006, Ortiz-Cruz purchased
cocaine base with a net weight of 24.3 grams.3 These controlled
purchases were recorded on audio tape, and the audio recordings
were admitted as evidence at trial. According to the testimony of
Ortiz-Cruz and Colón-González, long-time residents of the housing
project, Correa-Alicea was "in charge" of the drug point and was
involved in the conspiracy from November 2005 until November 2006.
The drug point operated for at least sixteen hours every day, and
a large number of people visited the drug point daily.
Based on this evidence, it is reasonable to conclude
that, over the course of the year-long conspiracy, Correa-Alicea's
drug point made at least one cocaine base sale per day in an amount
comparable to the controlled purchases. Using the smaller
controlled purchase of 17.1 grams as a sample, 6.2415 kilograms of
cocaine base are reasonably attributable to Correa-Alicea over the
one-year conspiracy (17.1 grams of cocaine base sold per day,
multiplied by 365 days per year). Using the larger controlled
purchase of 24.3 grams, he is accountable for 8.8695 kilograms
(24.3 grams of cocaine base sold per day, multiplied by 365 days
per year). Even the more conservative estimate of 6.24 kilograms
is significantly more than the 4.5 kilograms of cocaine base
attributed to Correa-Alicea by the district court. The court's
3
The third controlled purchase, made by Ortiz-Cruz on April
12, 2006, was for heroin rather than cocaine base, and therefore is
not relevant to this calculus.
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finding as to drug quantity was not a mere "hunch or intuition,"
see Marrero-Ortiz, 160 F.3d at 780, but was a "reasoned estimate"
based on reliable evidence in the record. See Rodríguez, 525 F.3d
at 107.
Relying on our decision in Rivera-Maldonado, 194 F.3d
224, Correa-Alicea contends that the quantity of drugs purchased in
the two controlled buys does not provide a reasonable basis for the
district court's 4.5 kilogram finding, and asserts that any
estimate of drug quantity based on these two buys "would not have
been arrived at in a scientifically sound and methodologically
reliable manner." We disagree.
In Rivera-Maldonado, we recognized that "[g]enerally
speaking, the smaller the sampling, the less reliable the resulting
probability estimate," and an estimate of drug quantity may be
unreliable if based on an extrapolation from too small a sample.
Id. at 231. We held that it was improper for the sentencing court
to estimate the average drug transaction size using a very small
sample of controlled buys over the course of a six-month
investigation. Id. at 233. The sampling in that case was
"minuscule," "twelve controlled buys drawn from a set of 86,400
transactions (20 transactions per hour, times 24 hours per day,
times 180 days)," and there was no evidence that the twelve
controlled buys were representative of ordinary drug transactions
at the drug point. Id. at 231-32. Furthermore, the other
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estimates upon which the total drug-quantity finding was based,
including the average number of transactions per hour and average
operating hours per day, were also unreliable, and therefore "the
risk of error was compounded by pyramiding unreliable inferences."
Id. at 233. We concluded that the sentencing court's drug-quantity
determination was not based on sufficiently reliable information,
and remanded the case for resentencing. Id. at 233; see also
United States v. Culps, 300 F.3d 1069, 1078 (9th Cir. 2002)
(holding that an estimate of average drug quantity for 60,250
transactions based on nine controlled buys was statistically and
legally unreliable); United States v. Butler, 41 F.3d 1435, 1447
(11th Cir. 1995) (rejecting an estimate of sixty-six drug
transactions per day based solely on a videotape of transactions
occurring on a single day, where there was no evidence that single
day was "typical" or "average").
In this case, however, the sample used for calculating
average drug transaction size is proportionately much larger, and
therefore more reliable, than in Rivera-Maldonado: two controlled
buys drawn from a set of 365 transactions (one per day for a year),
rather than twelve buys drawn from 86,400 transactions.
Furthermore, unlike in Rivera-Maldonado, the other estimates upon
which the total drug-quantity finding is based are reliable, even
conservative. The estimate of one transaction per day, or 365
transactions per year, is highly conservative in light of testimony
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that the drug point operated for sixteen to seventeen hours per
day, 365 days per year, and had a large number of customers daily.
The district court's ultimate finding that Correa-Alicea was
accountable for in excess of 4.5 kilograms of cocaine base is
likewise conservative, given that even calculations based on the
smaller of the two controlled buys would yield a figure of 6.24
kilograms. The court's finding, although not an "exact
determination" of drug quantity, see Rodríguez, 525 F.3d at 107, is
a reasonable estimate with "demonstrable record support" and
"adequate indicia of reliability." See Rivera-Maldonado, 194 F.3d
at 229.4
In sum, because there is clear record support for the
district court's finding that Correa-Alicea was accountable for
more than 4.5 kilograms of cocaine base during the charged
conspiracy, we affirm the sentence imposed.
4
Although Correa-Alicea does not raise the argument, it could
be contended that an estimate of drug quantity based on controlled
buys arranged by government agents is particularly unreliable, as
there is no evidence that these buys are representative of sales by
ordinary customers. See Rivera-Maldonado, 194 F.3d at 232.
However, even if the controlled buys stipulated to in this case are
somewhat larger than the average buys by ordinary customers at
Correa-Alicea's drug point, the calculation outlined above more
than compensates for any overestimate in the average drug
transaction size by using the extremely conservative estimate of
just one drug purchase per day.
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III.
Santiago-Torres contends that the cumulative effect of
several errors requires a new trial. We disagree and affirm his
conviction.
A. Voice Identification Expert
Santiago-Torres's principal argument is that the district
court erred in denying his request to retain a voice identification
expert and his related motion for a continuance to secure that
expert's presence at trial. We review a denial of a request to
fund expert services for abuse of discretion. United States v.
Quiñones-Medina, 553 F.3d 19, 25 (1st Cir. 2009). The denial of a
continuance is likewise reviewed for abuse of discretion. United
States v. Rodríguez-Durán, 507 F.3d 749, 762 (1st Cir. 2007).
Prior to trial, upon defense counsel's request, the
district court ordered that the defendants and their counsel be
permitted to listen on March 6, 2007, to the audio recordings of
the controlled purchases. Nearly two months later, on April 30,
Santiago-Torres and other defendants filed a motion to continue the
trial date set for May 14, citing ongoing investigations and plea
negotiations. On May 1, Santiago-Torres submitted a sealed, ex
parte motion requesting funds to retain a voice identification
expert, asserting that it was not his voice on the incriminating
audio recordings, and the only way he could present a defense
against the evidence contained in the audio recordings was through
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such an expert. Two days later, in an order denying the April 30
motion for continuance of trial, the court referenced, but did not
expressly rule on, Santiago-Torres's ex parte request for a voice
identification expert: "Furthermore, defendants' counsel listened
to the United States' evidence on March 6, 2007 and only now
request[s] an expert on voice identification."5
Santiago-Torres renewed his request for a voice
identification expert in a second sealed ex parte motion on May 7.
The following day, the court issued sealed orders denying both ex
parte motions without prejudice pending completion of the
government's case in chief. The district court did not further
explain the basis for its denial. On May 14, the day trial was
scheduled to start, Santiago-Torres filed a motion again requesting
funds to retain a voice identification expert and a continuance to
ensure the expert's availability for trial. The court orally
denied the motion. At trial, audio recordings of the February 16
purchase by government witness Colón-González and the April 12 and
May 4 purchases by government witness Ortiz-Cruz were admitted into
evidence over defense counsel's objections.
As an indigent, Santiago-Torres was entitled to the
benefits of the Criminal Justice Act (CJA), 18 U.S.C. § 3006A. The
5
Santiago-Torres also contends on appeal that the district
court erred by stating in this order that Santiago-Torres
"request[s] an expert on voice identification," thereby disclosing
his ex parte request for a voice identification expert. We discuss
this claim of error below.
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CJA provides that "a person who is financially unable to obtain .
. . expert . . . services necessary for an adequate defense" may
obtain them after demonstrating in an ex parte hearing that such
services are "necessary." 18 U.S.C. § 3006A(e)(1). "Generally,
expert services have been found necessary when the proffered expert
testimony was pivotal to the indigent defendant's defense." United
States v. Manning, 79 F.3d 212, 218 (1st Cir. 1996). For example,
"courts have appointed a fingerprint expert when a fingerprint,
alleged to be the defendant's, was the primary means of connecting
the defendant to the crime, and a psychiatrist when the defendant's
sanity at the time of the offense was at issue." Id. (internal
citations omitted).
We discern no abuse of discretion in the district court's
denial of Santiago-Torres's ex parte motion for funds to retain a
voice identification expert, or his related motion for a
continuance to secure that expert's presence at trial. Santiago-
Torres's proffered expert testimony was not pivotal to his defense.
The audio recordings were not the "primary means of connecting
[Santiago-Torres] to the crime," see id., but instead merely served
as corroboration for the ample eyewitness testimony that Santiago-
Torres had acted as a runner and seller for the drug point.
Colón-González testified that she had known Santiago-
Torres for three years, and had seen him acting as the runner at
the drug point and selling drugs to others behind her house. She
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further testified that during the February 16 controlled
transaction, the seller, Martínez, called Santiago-Torres to see
whether he had any additional drugs, and Santiago-Torres brought
her two more packages of cocaine base later that day. Ortiz-Cruz
testified that he had known Santiago-Torres for more than fifteen
years, and had sold drugs at Correa-Alicea's drug point in late
2005, during which time Santiago-Torres also worked as a drug
runner and seller. Ortiz-Cruz also testified that he purchased
cocaine base directly from Santiago-Torres in the May 4 controlled
transaction. In light of this eyewitness testimony, none of which
depended on identification of Santiago-Torres's voice on the audio
recordings, the voice identification expert services were not
critical or necessary to his defense.
Moreover, as the district court noted, Santiago-Torres's
counsel had the opportunity to listen to the audio recordings at
issue on March 6, but did not request a continuance until April 30
and did not request funds to retain a voice identification expert
until May 1, less than two weeks before his trial was scheduled to
begin. Santiago-Torres contends on appeal, as he did in his motion
to the district court, that his requests were delayed because he
spent weeks trying to locate a voice identification expert
available to come to Puerto Rico. However, he does not explain why
he could not have made his requests for expert services and for a
continuance prior to locating an available expert, and the district
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court could reasonably have found that the requests were
unreasonably dilatory. In light of these facts, we cannot conclude
that the court abused its discretion in denying Santiago-Torres's
requests for a continuance and for funds to retain the proffered
expert.
Santiago-Torres further contends that the district court
erred in disclosing his ex parte request for a voice identification
expert in its May 3, 2007 denial of his motion for a continuance.
The government correctly concedes error on this point. See United
States v. Abreu, 202 F.3d 386, 391 (1st Cir. 2000) (holding that
district court erred in not handling entire application for expert
services under 18 U.S.C. § 3006A(e)(1) on an ex parte basis, and
explaining that the "manifest purpose of requiring that the inquiry
be ex parte is to insure that the defendant will not have to make
a premature disclosure of his case" (internal quotation marks
omitted)). However, voice identification was not pivotal to
Santiago-Torres's defense. Even absent the audio recordings, the
government presented overwhelming evidence of his guilt.
Therefore, we find that the court's error in not handling his
expert request on an ex parte basis was harmless.
B. Alleged Discovery Violations
Santiago-Torres further contends that the district court
failed to remedy two alleged discovery violations by the
government.
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1. Disclosure of Photograph
First, Santiago-Torres contends that the court erred in
not ordering the government to produce a photograph shown to Colón-
González prior to trial, which he argues was subject to disclosure
under Rule 16 of the Federal Rules of Criminal Procedure. We
review the court's determination under Rule 16 for abuse of
discretion. United States v. Caro-Muñiz, 406 F.3d 22, 29 (1st Cir.
2005). We find no such abuse here.
Colón-González testified that she had personally
identified both defendants to DEA agents while she and the agents
were riding in an undercover car, and she had later identified
Santiago-Torres in a photograph shown to her by DEA agents.
Santiago-Torres objected on the ground that, during discovery, he
had asked the prosecution for information about any identification
procedures used in the investigation, such as photographic line-
ups, and the government had responded that no such procedures had
occurred. Santiago-Torres contended that the government should
have disclosed the photograph during discovery so that he could
cross-examine Colón-González about her identification, and
requested that the court order production of the photograph. The
government argued that the photograph was irrelevant because
Colón-González knew Santiago-Torres from personal interactions, and
did not identify him based on the photograph. The court denied
Santiago-Torres's request, accepting the government’s assertion
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that the photograph was not the basis for her identification of
Santiago-Torres because she knew him personally.
The district court did not abuse its discretion in
refusing to order production of the pretrial photograph. Rule 16
requires disclosure of documents and objects within the
government's possession, custody or control upon a defendant's
request if "(i) the item is material to preparing the defense; (ii)
the government intends to use the item in its case-in-chief at
trial; or (iii) the item was obtained from or belongs to the
defendant." Fed. R. Crim. P. 16(a)(1)(E). Santiago-Torres
contends that the photograph was material to his defense because it
could have been used during cross-examination of Colón-González and
could have formed the basis for a "pretrial motion to suppress the
reliability of her identification." However, nothing in the record
indicates that Colón-González identified Santiago-Torres on the
basis of the photograph. To the contrary, she testified that she
had known Santiago-Torres for three years and purchased drugs from
him, and that, before being shown the photograph, she had
identified him in-person while riding in an undercover car with DEA
agents. Thus, the photograph was not material and the government
was not required to disclose it.
2. Disclosure of Audio Recording
Santiago-Torres contends that the district court erred in
denying his request for a mistrial based on the government's
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alleged failure to produce the April 12, 2006 audio recording
during pretrial discovery. We review the court's denial of a
mistrial motion for a manifest abuse of discretion. United States
v. Van Anh, 523 F.3d 43, 54 (1st Cir. 2008).
At trial, after the audio recording of Ortiz-Cruz's April
12 controlled purchase was played for the jury, defense counsel
moved for a mistrial, claiming that he had not received the
recording during discovery. He stated that during pretrial
discovery he had received a recording marked "April 12" along with
a transcript, but the recording was inaudible. He then requested
and received a second copy of the recording and transcript from the
government, also marked "April 12," but he claimed that this was
not the recording played at trial. The government maintained that
it had provided defense counsel with copies of the April 12
recording and the transcript on two occasions well in advance of
trial, and defense counsel should have notified the government if
the recording did not match the transcript. The district court
then listened to the recording at issue and denied Santiago-
Torres's motion, explaining that "whatever the CD was -- that was
provided -- I mean, it was easily determined that it -- it wasn't
the proper CD by just looking at the transcript."
We find no abuse of discretion in the court's ruling.
The court reasonably concluded that, even if the incorrect
recording was mistakenly provided, defense counsel could have
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easily discovered the error and requested the correct recording
from the government. Moreover, Santiago-Torres has not shown that
he was prejudiced by the government's alleged failure to produce
the correct recording prior to trial. See United States v. Devin,
918 F.2d 280, 290 (1st Cir. 1990) ("[I]n cases of delayed
disclosure, a court's principal concern must be whether learning
the information altered the subsequent defense strategy, and
whether, given timeous disclosure, a more effective strategy would
likely have resulted."). He contends that the government's alleged
discovery failure caused him to rely on the wrong trial strategy,
because his strategy "was to obtain suppression of the April 12
recording because it was inaudible and therefore inadmissible." He
further claims that if he had received the correct recording prior
to trial, he might have accepted the government's plea offer,
"since the strategy of having the tape excluded on inaudibility
grounds would have been foreclosed."
Santiago-Torres's claims of prejudice are not plausible.
Defense counsel conceded to the district court that after receiving
the first recording, which he claimed was inaudible, he requested
and received a second copy of the recording from the government.
He did not claim that this second recording was inaudible; instead,
he conceded that he listened to the recording and "understood that
this transcript was not really right, that you could not really
read -- you could not really hear what is in the transcript." In
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addition, defense counsel was permitted to listen to the
government's audio recordings in court on March 6, 2007, prior to
trial. Defense counsel admitted to the district court that he
"wasn't present for the whole session." Finally, although
Santiago-Torres claims that his trial strategy was to file a motion
to suppress the audio recording, he did not file any such pretrial
motion. Santiago-Torres has failed to credibly demonstrate that
the alleged discovery failure caused him to adopt a less effective
defense strategy, and we are therefore satisfied that any discovery
failure was harmless.
Affirmed.
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