United States v. Rodriguez

United States Court of Appeals
For the First Circuit

No. 13-1805

UNITED STATES OF AMERICA,

Appellee,

v.

HECTOR RODRIGUEZ, A/K/A BOLO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Timothy S. Hillman, U.S. District Judge]

Before
Howard, Circuit Judge,
Kayatta, Circuit Judge,
and McCafferty,* District Judge.

Katherine C. Essington, for appellant.
Kelly Begg Lawrence, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.

July 16, 2014

*
Of the District of New Hampshire, sitting by designation.
 McCAFFERTY, District Judge. Hector Rodriguez appeals his

convictions for distributing cocaine base under 21 U.S.C.

§ 841(a)(1). He challenges: (1) decisions by the district court

that allowed the jury to review previously admitted video and

audiotapes in the courtroom, and in the presence of alternate

jurors, the court, and the parties; (2) the lack of a limiting

instruction directing the jury not to draw negative inferences from

the fact that law-enforcement officers possessed photographic

images of him; and (3) his sentencing as a career offender. We

affirm.

I. The Jury’s Review of Evidence

Rodriguez was convicted on three counts of distributing

cocaine base. The evidence against him included testimony from a

cooperating witness who purchased cocaine base from him on three

occasions, plus video and audiotapes of those transactions.

In its jury charge, the court explained that “all of the

exhibits except for the video and audiotapes have been loaded onto

what we call JERS, the Jury Evidence Retrieval System, that is in

the jury room.” With regard to the video and audiotapes, the court

explained:

We are unable to load the video or audiotapes
. . . onto JERS. So, if you need to see them
or hear conversations, you’re going to need to
come ask to come back into the courtroom, and
we will play whatever it is that you want.
There will not be any further argument from
counsel. I’m not going to give you any
further instructions, but if you wanted to

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 resee exhibit whatever, just say the word, and
we will bring you in here. We will set that
up for you.

Rodriguez made no contemporaneous objection to the procedure

outlined by the court for giving the jury access to the audio and

video footage.

After explaining, in its jury charge, that two extra

jurors had been impaneled, the court designated two of the fourteen

impaneled jurors as alternates, and told the alternates that they

were not allowed to deliberate. The court then dismissed the

twelve jury members and the two alternates to eat lunch together,

reminding the alternates not to discuss the case with the regular

jurors during lunch, and telling them that they would be removed

from the jury room when it was time for the jury to begin its

deliberations.

Early in its deliberations, the jury notified the court

that it wanted to see several videotapes and listen to several

audiotapes that had been introduced into evidence. Shortly after

the court received the jury’s requests, the alternates and the

regular jurors were brought into the courtroom. After they

arrived, the court said this to the jury:

Now, I’m not sure that you all realize
that the videos themselves are fairly lengthy.
They’re 30 or 40 minutes long each. If you
want, we will play them in their entirety; or
if there is a specific area that you would
like to have replayed, we can do that as well.
I’m not going to ask you to tell me right now.
. . . Let us play [the audiotapes of] the

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 phone calls for you so that we have those out
of the way. And then I’m going to ask you to
go back and discuss amongst yourselves . . .
whether you want the entire videos played or
certain discrete parts.

At sidebar, Rodriguez’s counsel expressed concern over the presence

of the alternates while video and audio footage was being played

for the deliberating jury. The court stated its opinion that the

alternates should be included in the viewing, given the possibility

that an alternate might be needed to replace a juror who became

unable to continue. After the court decided that the alternates

would be included, Rodriguez’s counsel asked whether they should be

placed closer to a monitor. In response, the court directed the

alternates to sit in the jury box, with the jury, in the same seats

they had occupied during the trial. Rodriguez did not object.

After the jury had listened to the audiotapes it had

asked to hear, the following exchange took place:

THE COURT: . . . .

I think that’s all of the audiotapes
that you had all asked for. So what I’m going
to need you to do is caucus with the jurors
and find out whether you would like the entire
[videotapes] or excerpts.

JUROR: Excerpts.

THE COURT: Okay.

JUROR: From approximately 2 minutes
prior to each transaction from the videos,
please.

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After court personnel spent some time trying to cue up the excerpts

the jury requested, with limited success, the court dismissed the

jury to the jury room and the alternates to the alternate room.

When the jury and the alternates were returned to the courtroom,

the court seated the alternates apart from the jury, at one of the

counsel tables. Several excerpts from the videotapes were played,

and after some ensuing confusion over the other excerpts it wanted

to see, the jury conferred, in the courtroom, to resolve that

confusion. While the jury was conferring, Rodriguez’s counsel

said, at sidebar: “Judge, I don’t know how to say it other than to

say, I almost feel like I’m part of their deliberation.” The court

responded: “I agree. I really do not like how we’re doing this.”

The sidebar concluded with the court saying: “This is really

unacceptable.” After several more excerpts were played, the court

dismissed the jury: “We’re going to let you return . . . to the

jury room and continue deliberation.”

With respect to the jury’s review of evidence in the

courtroom during the course of its deliberations, three separate

decisions by the district court are before us for review. They are

the court’s decisions to: (1) have the alternates in the courtroom

when the jury reviewed video and audio footage; (2) place the

alternates in the jury box for the playing of the audiotapes; and

(3) have the jury confer in front of the judge, the prosecutors,

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the defendant, and defense counsel, about which excerpts from the

videotapes it wanted to see.1

When a challenge to the manner in which a district court

has handled a jury’s request to review evidence has been properly

preserved, we normally review the court’s action for abuse of

discretion. See United States v. Saunders, 553 F.3d 81, 86 (1st

Cir. 2009) (citing United States v. Hyson, 721 F.2d 856, 865 (1st

Cir. 1983)). That is the standard that applies to our review of

the court’s decision to have the alternates present in the

courtroom while the jury reviewed video and audio footage. The

court’s placement of the alternates in the jury box for the playing

of the audiotapes and its directive that the jury confer in the

courtroom, however, are reviewed for plain error, see Fed. R. Crim.

P. 52(b), because those issues were not properly raised at trial

and preserved for review.

A. Exposing Jurors to Alternates in the Courtroom

Rodriguez argues that the district court violated Rule

24(c)(3) of the Federal Rules of Criminal Procedure by bringing the

alternate jurors into the courtroom along with the regular jurors.

But, the basic purpose of Rule 24(c)(3) is to protect the

alternates from outside influences. The gravamen of Rodriguez’s

appeal is that the court failed to protect the regular jurors from

1
The court did make one other decision, to place the
alternates at counsel table for the playing of the videotapes, but
Rodriguez does not appear to challenge that decision.

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outside influences, including those that may have come from the

alternates. Thus, rather than focusing on Rule 24(c)(3), we frame

our analysis in terms of a criminal defendant’s Sixth Amendment

right to an impartial jury. See United States v. Olano, 507 U.S.

725, 737-38 (1993) (“[T]he primary if not exclusive purpose of jury

privacy and secrecy is to protect the jury’s deliberations from

improper influence.”). That said, the district court did not abuse

its discretion by having the alternates present in the courtroom

with the jury.

An abuse of discretion occurs “only ‘if no reasonable

person could agree with the judge’s ruling.’” United States v.

Jones, 748 F.3d 64, 69 (1st Cir. 2014) (quoting United States v.

Maldonado, 708 F.3d 38, 42 (1st Cir. 2013)). Here, immediately

after the court designated the alternates, they were instructed

generally that they did “not get to deliberate.” And when the jury

and the alternates were dismissed together for lunch moments later,

the jury was instructed not to discuss the case until after the

alternates were removed from the jury room. While additional

instructions might have been given when the jury and the alternates

returned to the courtroom, the alternates are presumed to have

followed the instructions they had already been given regarding

their exclusion from deliberation. See United States v. Rodriguez,

675 F.3d 48, 63 (1st Cir. 2012) (citing United States v. Gentles,

619 F.3d 75, 82 (1st Cir. 2010); United States v. Salley, 651 F.3d

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159, 167 (1st Cir. 2011)). In addition, the only place where the

jury and the alternates came into contact was in the courtroom,

under the watchful eye of the judge, who was in a prime position to

ensure that the alternates did not discuss the case verbally or

communicate with the regular jurors in any other way, see Olano,

507 U.S. at 739 (pointing out that alternates could “actually

participate[] in the [jury’s] deliberations, verbally or through

body language”) (internal quotation marks omitted).

Given the location of the contact between alternates and

the jury, the facts of this case are more benign than those of

Olano, in which the Court held that it was not prejudicial to the

defendant for the district court to send alternates into the jury

room during deliberations, see 507 U.S. at 741. If the district

court in Olano did not prejudice the defendant by sending alternate

jurors into the jury room, where they were subject to no judicial

observation, we cannot say that the court in this case abused its

discretion by having the alternate jurors in the courtroom, in

plain sight, while the jury reviewed video and audio footage.

B. Exposing Jurors to Alternates in the Jury Box

The court’s decision to place the alternates in the jury

box when audiotapes were played for the jury, to which Rodriguez

did not object, is reviewed for plain error. Plain error is “a

very stiff standard,” Jones, 748 F.3d at 69, that is “famously

difficult . . . to meet,” United States v. Acosta-Colón, 741 F.3d

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179, 192 (1st Cir. 2013). To meet that standard, Rodriguez must

show: “(1) that an error occurred (2) which was clear or obvious

and which not only (3) affected [his] substantial rights, but also

(4) seriously impaired the fairness, integrity, or public

reputation of judicial proceedings.” United States v. Batchu, 724

F.3d 1, 7 n.4 (1st Cir. 2013) (quoting United States v. Duarte, 246

F.3d 56, 60 (1st Cir. 2001)). To show that an error by the

district court affected his substantial rights, Rodriguez must show

prejudice. See Jones, 748 F.3d at 69; see also Olano, 507 U.S. at

734. For an error to be prejudicial, it must have been an “error

[that] likely ‘affected the outcome of the district court

proceedings.’” United States v. Rodriguez, 735 F.3d 1, 13 (1st

Cir. 2013) (quoting United States v. Hebshie, 549 F.3d 30, 44 (1st

Cir. 2008)).

To determine whether the court committed plain error by

placing the alternates in the jury box, we must identify the legal

principle under which that action might have been erroneous. As

with the decision to allow the alternates into the courtroom in the

presence of the jury, we apply the principle of jury privacy and

secrecy that ensures a criminal defendant’s Sixth Amendment right

to an impartial jury.

The district court did not err by placing the alternates

in the jury box. To be sure, that move placed the alternates in

close physical proximity to the regular jurors. But, given that

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the alternates had been instructed not to discuss the case with the

jury, we cannot say that the court erred by placing them in the

jury box, where any violation of their instructions would be openly

visible and easily remedied. Absent any error, much less an error

that was plain, the court’s placement of the alternates in the jury

box during the audio playback survives plain-error review. See

Batchu, 724 F.3d at 7 n.4. Moreover, even if we were to presume an

error, and that it was plain, Rodriguez comes nowhere close to

establishing prejudice or either a serious impairment of the

fairness, integrity, or public reputation of his trial, or any

threat of a miscarriage of justice, which is another phrase we have

sometimes used to characterize the fourth prong of the plain-error

test, see Jones, 748 F.3d at 69; United States v. Paladin, 748 F.3d

438, 452 (1st Cir. 2014) (treating “caused a miscarriage of

justice” and “seriously undermined the integrity or public

reputation of judicial proceedings” as interchangeable) (citation

omitted).

C. Directing Jury to Confer in the Courtroom

The court’s decision to direct the jury to confer in the

courtroom to determine which parts of the video footage it wanted

to see is also reviewed for plain error. Again, the operative

legal principle is “that the deliberations of the jury shall remain

private and secret.” Olano, 507 U.S. at 737 (citation and internal

quotation marks omitted).

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 Even assuming that Rodriguez has satisfied the first two

prongs of the plain-error test set out in Batchu,2 his argument

fails because he has not satisfied the third prong, which is

prejudice. See Olano, 507 U.S. at 737 (assuming error and

addressing prejudice). Rodriguez’s theory is that, with regard to

at least some of the videotapes it viewed, the jury was forced to

make its decisions about how much videotape to view while under the

scrutiny of a judge who, by asking whether the jury wanted to see

whole tapes or excerpts, had expressed an opinion – or at least

suggested – that the jury might not need to view the tapes in their

entireties.3 So, Rodriguez’s argument goes, some jurors may have

been inhibited by their perception that the judge believed that the

jury did not need to see all that much videotape and, for that

reason, may have demurred from pressing for longer replays.

The principles that guide our analysis come from Olano.

In that case, the Court held that “[t]he presence of alternate

2
If we were to reach the issue of whether the district court
erred by directing the jury to confer in the open courtroom, we
would not be persuaded by the government’s argument that the jury
communications in this case were not deliberation. To the
contrary, when the jury formed, and then announced, in open court,
decisions about which parts of the videotapes it wanted to see, it
was forming and expressing opinions about the relative importance
of the evidence before it.
3
Rodriguez also argues that the district court erred by
having the jury view the videotapes in his presence, and in the
presence of counsel, but he develops no argument concerning
prejudice that may have resulted from the presence of anyone other
than the judge.

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jurors during jury deliberations is not the kind of error that

affects substantial rights independent of its prejudicial impact.”

507 U.S. at 737 (brackets and internal quotation marks omitted).

After pointing out that the respondents in that case did not make

a specific showing of prejudice, id., the Court went on to say that

on the facts of the case before it, it saw “no reason to presume

prejudice,” id. The Court concluded its prejudice analysis by

stating that “we [do not] think that the mere presence of alternate

jurors entailed a sufficient risk of ‘chill’ to justify a

presumption of prejudice on that score.” Id. at 741 (emphasis

added).

Here, when asked at oral argument to identify exculpatory

evidence that the jury did not see, which, in turn, might

contribute to a specific showing of prejudice, Rodriguez’s counsel

was unable to identify any. While counsel argued that Rodriguez

could show prejudice, all she offered to support that argument was

the fact that the jury conferred in the courtroom. She did mention

the possibility of a chilling effect on the jury’s deliberations.

But other than the possible influence of the judge, counsel

identified nothing in the circumstances of this particular case to

suggest: (1) how deliberations might have been chilled by the

presence of people other than the judge in the courtroom; or (2)

that deliberations were actually chilled. In short, Rodriguez has

not established prejudice.

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 His argument, then, rests almost entirely on the premise

that it was presumptively prejudicial to his defense for the court

to direct the jury to deliberate in the courtroom. In view of

Olano, we cannot agree. In that case, the trial court sent

alternates into the jury room during deliberations, and did so for

the same reasons that prompted the court in this case to have the

alternates review audio and video footage along with the regular

jurors. See Olano, 507 U.S. at 727-29. In its opinion, the Court

explained that “[t]here may be cases where an intrusion should be

presumed prejudicial,” id. at 739, but then held that the Court of

Appeals was incorrect in determining that it was presumptively

prejudicial, on the facts of that case, for the trial court to send

alternates into the jury room, id. at 740. Those facts included

express instructions that “the alternates must not participate in

the deliberations,” id., instructions that the alternates are

presumed to have followed, see id.

The facts of this case give us no reason to reach a

result different from the result in Olano. For one thing, while

Rodriguez’s theory is based on interpreting the words the judge

spoke to the jury as chilling its desire to view as much videotape

as it may have wanted to see, those words are much more reasonably

understood as expressing a concern about burdening the jury by

screening footage it did not want to see. For example, the judge

prefaced his comments on showing the videotapes by expressing his

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belief that the jury did not know how long the videotapes actually

were.4 Second, as to the possible influence of what the judge said

to the jury, the trial transcript shows that even though the judge

twice offered the jury the chance to confer to determine what parts

of the videotapes it wanted to see, the jury already had an answer

to that question: “[e]xcerpts . . . [f]rom approximately 2 minutes

prior to each transaction from the videos.” The timing of that

response reveals the likelihood that the jury framed it in the jury

room, prior to any statement from the judge. Third, by the time

the jury expressed its desire to see specific excerpts, the judge

had, on three occasions, offered the option of viewing the

videotapes in their entireties. Finally, there is nothing that

prevented the jury from making a subsequent request, from the

security of the jury room, to see longer excerpts from the

videotapes, and, indeed, the day after the jury viewed the

videotapes in the courtroom, the court provided a clean computer on

which it could view the videos again, at its leisure. Under these

circumstances, we do not presume prejudice resulting from the

court’s decision to have the jury review videotape evidence in the

courtroom.

To conclude, Rodriguez has not established prejudice, and

while we recognize that there may be cases involving outside

4
The transcript demonstrates that during trial, the jury was
shown only excerpts of the tapes, which reinforces the judge’s
understanding that the jury did not know how long they were.

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influence upon jurors where prejudice should be presumed, this is

not one of them. The circumstances here presented a risk of

chilling the jurors’ deliberations, but not a risk sufficient to

support a presumption of prejudice. Because prejudice is one of

the four showings necessary to establish plain error, see Batchu,

724 F.3d at 7 n.4, the district court’s decision to have the jury

confer in the courtroom survives plain-error review.

II. Instructions on Inferences from Photographic Evidence

While cross-examining a cooperating witness who had

purchased cocaine base from Rodriguez, defense counsel elicited

testimony that, before the witness made her first contact with

Rodriguez, a law-enforcement officer showed her a photographic

image of him. Then, during the direct examination of a law-

enforcement officer involved in the case, the following exchange

took place:

Q. Okay. Had you apprised yourself of
[Rodriguez’s] appearance before you began your
surveillance?

A. Yes. I observed photos of him prior.

MR. LoCONTO: Judge, may we approach
briefly?

THE COURT: You may.

[S]idebar as follows:

MR. LoCONTO: . . . . It just occurred
to me that the government’s asking questions
[as] if the Court would give some sort of
limiting instruction . . . that they [should]
draw no negative inference [from the fact]

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 that the police have a photograph of my
client; that there may be a number of sources
that he might have gotten it from. It doesn’t
necessarily make him –

. . . .

MR. FLASHNER: Your honor, Mr. LoConto
brought out on cross-examination that the
cooperating witness was shown photographs. I
may or may not go into that with the case
agent.

MR. LoCONTO: Judge, I know I was given
a Fitchburg impact team whatever photograph,
and I just want to make sure that . . . the
term “impact team” –

THE COURT: You know what, I think at
this point I’m not going to touch it, because
frankly, I [would] just [as soon] not draw
their attention to it. But . . . I will let
you ask when you revisit it later, or even as
an instruction.

Defense counsel did not raise the issue again, did not request a

limiting instruction in the final jury charge, and did not object

when no such instruction was given.

Rodriguez now argues that the district court committed

plain error by failing to instruct the jury that it could not draw

a negative inference from the fact that law-enforcement officers

possessed photographic images of him. We disagree.

Given Rodriguez’s failure to request the instruction he

now faults the court for not giving, and his failure to object when

such an instruction was not given, he now bears the burden of

demonstrating plain error. See United States v. Guevara, 706 F.3d

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38, 46 (1st Cir. 2013) (citing United States v. Appolon, 695 F.3d

44, 59-60 (1st Cir. 2012)). As we have pointed out before, “the

plain error exception is cold comfort to most defendants pursuing

claims of instructional error.” United States v. Mitchell, 596

F.3d 18, 25 (1st Cir. 2010) (quoting United States v. Gómez, 255

F.3d 31, 37 (1st Cir. 2001)). The comfort provided by the plain-

error exception is even colder where, as here, the defendant is not

challenging the court’s failure to give a substantive instruction

relating to a defense such as entrapment, see Guevara, 706 F.3d at

46, or the buyer-seller defense to a conspiracy claim, see

Mitchell, 596 F.3d at 24-25, but, rather, is challenging the

court’s failure to give a limiting instruction.

To arguments such as the one presented here, based upon

a failure to give an unrequested limiting instruction, we have been

particularly unreceptive. See, e.g., United States v. Lugo

Guerrero, 524 F.3d 5, 14 (1st Cir. 2008); United States v. LeMoure,

474 F.3d 37, 44 (1st Cir. 2007). Indeed, “it would be most unusual

for us to find that a district court erred in failing to give a

limiting instruction that was never requested.” United States v.

Lebrón-Cepeda, 324 F.3d 52, 60 (1st Cir. 2003). That is because

“[t]he district court is not required to ‘act sua sponte to

override seemingly plausible strategic choices on the part of

counseled defendants.’” LeMoure, 474 F.3d at 44 (quoting United

States v. De La Cruz, 902 F.2d 121, 124 (1st Cir. 1990)); see also

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United States v. Cartagena-Carrasquillo, 70 F.3d 706, 713 (1st Cir.

1995) (refusing to impose obligation on district court to give, sua

sponte, a limiting instruction because “[w]hether an instruction

will ‘cure’ a problem or exacerbate it by calling more attention to

it than warranted is within the ken of counsel and part of

litigation strategy and judgment”).

The facts of this case bring it squarely within the

paradigm described in Lebrón-Cepeda, Cartagena-Carrasquillo, and De

La Cruz. After first eliciting testimony about photographs the

police showed the cooperating witness, Rodriguez’s counsel later

began to develop misgivings about presenting the jury with evidence

suggesting that the police possessed photographic images of his

client. He shared those preliminary misgivings with the court. In

response, the court explained its own reasonable misgivings about

calling attention to Rodriguez’s possible previous involvement with

the police by giving a contemporaneous limiting instruction. But,

the court also invited Rodriguez’s counsel to request that a

limiting instruction be included in the jury charge. He did not do

so. Because the court clearly indicated a willingness to entertain

a limiting instruction, we conclude that the lack of a request for

one was a strategic decision by Rodriguez’s counsel, made after

reflecting on the court’s clearly articulated concern that such an

instruction might do more harm than good. The court’s decision not

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to override a plausible strategic choice by Rodriguez’s counsel was

not plain error.

III. Sentencing as a Career Offender

After he was convicted, Rodriguez was sentenced as a

career offender, based upon determinations by the district court

that Rodriguez’s prior convictions were lawful. Rodriguez now

argues that his sentence in this case violates the Sixth Amendment

prohibition against judicial fact finding. It does not.

“[F]acts that expose a defendant to a punishment greater

than that otherwise legally prescribed [are] by definition

‘elements’ of a separate legal offense.” Apprendi v. New Jersey,

530 U.S. 466, 483 n.10 (2000). As such, those facts must be

“alleged in the indictment and found by the jury.” Id. However,

“[i]n Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct.

1219, 140 L.Ed.2d 350 (1998), [the Supreme Court] recognized a

narrow exception to [the] general rule [stated above] for the fact

of a prior conviction.” Alleyne v. United States, 133 S. Ct. 2151,

2160 n.1 (2013). “In Alleyne, the Supreme Court [also] stated that

Almendarez-Torres . . . remains good law.” United States v.

Carrigan, 724 F.3d 39, 51 n.4 (1st Cir. 2013) (citing Alleyne, 133

S. Ct. at 2160 n.1). “This being the case, we must reject

[Rodriguez’s] argument that his . . . Sixth Amendment rights were

implicated when . . . the jury was not required to pass on [his

prior convictions.]” Paladin, 748 F.3d at 452.

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 IV. Conclusion

The judgment of the district court is affirmed.

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