United States v. Rivera-Rodriguez

United States Court of Appeals
For the First Circuit

Nos. 11-1689, 11-1744

UNITED STATES,

Appellee,

v.

CARLOS H. RIVERA-RODRÍGUEZ

and ALBERT MERCADO-CRUZ,

Defendants, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

Thompson, Lipez, and Kayatta,

Circuit Judges.

Michael Covington Bagge, with whom Rosa Emilia Rodríguez-
Vélez, United States Attorney, and Nelson Pérez-Sosa and Thomas F.
Klumper, Assistant United States Attorneys, were on brief, for
appellee.
Rafael F. Castro Lang for appellant Carlos H. Rivera-Rodríguez
and Guillermo A. Macari-Grillo for appellant Albert Mercado-Cruz.

August 4, 2014
 LIPEZ, Circuit Judge. Appellants Carlos H. Rivera-Rodríguez

and Albert Mercado-Cruz appeal their convictions and sentences on

drug possession and distribution charges. Rivera-Rodríguez claims

that the district court's improper questioning of witnesses and its

handling of a dispute during closing arguments unfairly prejudiced

the jury against him. He further alleges prosecutorial misconduct.

Mercado-Cruz, through counsel and by way of a pro-se brief, alleges

a number of errors relating to his conviction and sentencing,

including a claim that the government's criminal history

information should not have triggered a mandatory life sentence

because it was not timely filed. See 21 U.S.C. § 851(a).

After a close review of the record, we agree that Rivera-

Rodríguez's conviction must be vacated due to the district court's

improper questioning of witnesses and its intervention during

closing arguments. We affirm Mercado-Cruz's conviction and

sentence.

I.

Rivera-Rodríguez and Mercado-Cruz were among sixty-four co-

defendants charged with involvement in a conspiracy to distribute

various types of illegal drugs and prescription medications for

recreational use.1 They were the only two co-

1
The indictment charged Rivera-Rodríguez and Mercado-Cruz
with: (1) conspiring to possess with intent to distribute one
kilogram or more of heroin, five kilograms or more of cocaine,
fifty grams or more of cocaine base, one thousand kilograms or more
of marijuana, and detectable amounts of Oxycodone (a/k/a,

-2-
defendants who elected to stand trial rather than accept plea

agreements.

Up to and including the first day of trial, Mercado-Cruz's

counsel, Attorney Lincoln-San-Juan, attempted to persuade his

client to accept a plea bargain that would have resulted in the

government recommending a sentence of between seventy-seven and

ninety-six months of imprisonment. On the day trial was scheduled

to begin, the government sought to introduce an information

pursuant to 21 U.S.C. § 851 to establish that Mercado-Cruz had

prior drug convictions and was thus subject to a mandatory life

sentence if convicted on Count One.2 Lincoln-San-Juan asked the

government to delay filing that information so that he could

“Percocet”), and Alprazolam (a/k/a “Xanax”), within one thousand
feet of a public housing project and school, in violation of 21
U.S.C. §§ 841(a)(1), 846, and 860 (Count One); (2) aiding and
abetting in the distribution of one or more kilograms of heroin
within one thousand feet of a public housing project and school, in
violation of 21 U.S.C. §§ 841(a)(1) and 860 and 18 U.S.C. § 2
(Count Two); (3) aiding and abetting in the distribution of fifty
or more grams of cocaine base within one thousand feet of a public
housing project and school, in violation of 21 U.S.C. §§ 841(a)(1)
and 860 and 18 U.S.C. § 2 (Count Three); (4) aiding and abetting in
the distribution of five or more kilograms of cocaine within one
thousand feet of a public housing project or school, in violation
of 21 U.S.C. §§ 841(a)(1) and 860 and 18 U.S.C. § 2 (Count Four);
and (5) aiding and abetting in the distribution of a measurable
amount of marijuana within one thousand feet of a public housing
project and school, in violation of 21 U.S.C. §§ 841(a)(1) and 860
and 18 U.S.C. § 2 (Count Five).
2
Under § 851, when the government expects to seek a
sentencing enhancement based on a defendant's prior convictions, it
must provide notice to the court and the defendant before trial in
the form of an information listing the convictions to be relied
upon. 21 U.S.C. § 851(a)(1).

-3-
implore his client one final time to take the plea deal after

informing him that he could face a mandatory life sentence.

Mercado-Cruz elected to stand trial.

That same day, Mercado-Cruz complained that he was brought to

court for trial wearing prison clothes. The court refused to

continue the trial on that basis, explaining that it was the

defendant's responsibility to supply his own alternate clothes.

Trial then began with jury selection. The § 851 information was

filed shortly thereafter during trial.

Trial began with testimony from a number of witnesses involved

with the law enforcement investigation of a "drug point" in the

Praxedes Santiago Public Housing Project. These witnesses

testified to background information about the scope of the alleged

conspiracy to distribute drugs there, but did not, aside from a

brief identification of Mercado-Cruz, provide any evidence

specifically tying the defendants to the conspiracy.3 To inculpate

the defendants, particularly Rivera-Rodríguez, the government

relied primarily on the testimony of two cooperating witnesses who

had already pled guilty to their involvement in the drug

conspiracy. During the questioning of those witnesses by the

3
Indeed, the district court expressed some frustration with
the government's presentation of its case and the vast amount of
background information that was not tied to the co-defendants on
trial. At one point the court remarked to the Assistant United
States Attorney, "I'm losing my patience. I want you to come and
present evidence about this case. We have been one week here, and
we haven't heard anything about this case."

-4-
government, the court interjected its own inquiries about the plea

agreements that required the cooperating witnesses to testify

truthfully. If they did not, as the court emphasized through its

questioning, there could be consequences for the cooperating

witnesses, including charges for perjury, false statements, and

obstruction of justice, as well as the imposition of sentences

beyond the terms of the plea agreements.4

Multiple witnesses5 testified to seeing Mercado-Cruz in

possession of various drugs in and around the drug point in the

Praxedes Santiago Public Housing Project. Two cooperating

witnesses, Pedro Rodríguez Fernández, a/k/a Cunta, and Adalberto

Torres Ocasio, a/k/a Marruecos, identified him as a seller of these

illegal drugs. Marruecos also testified that Mercado-Cruz carried

a firearm around the drug point. The police officer who arrested

Mercado-Cruz testified to finding on his person at the time of

arrest prescription pills in a bottle with the label torn off. The

pills and the bottle were tested and entered into evidence against

Mercado-Cruz.

4
Further details of the court's interactions with witnesses
are examined infra.
5
The witnesses who so testified were not only the two
cooperating witnesses, but also José Montañez-Santos, a government
witness who was previously an informant with the DEA, and FBI Agent
Francisco Aponte. Rivera-Rodríguez's witness, Keila Flores-Ramos,
also identified Mercado-Cruz as someone whom she had seen working
at the drug point.

-5-
 Government witness José Montañez-Santos and defense witness

Keila Flores-Ramos testified that Rivera-Rodríguez was not himself

a drug user, but his son was a known addict who hung around the

drug point. Cunta and Marruecos, the two cooperating witnesses,

testified that Rivera-Rodríguez set up a lookout scheme to protect

drug dealers by providing hand-held radios (or "scanners") to paid

lookouts posted at the entrance to the housing project who could

then warn the sellers when the police were coming. Testifying in

his own defense, Rivera-Rodríguez insisted that he interacted with

drug dealers and others at the drug point only to prevent them from

selling to his son. Apart from the cooperating witness testimony,

the government introduced a hand-held radio into evidence that was

similar, but not identical, to the ones Rivera-Rodríguez allegedly

kept in his home and used to orchestrate the lookout scheme. No

evidence was seized from Rivera-Rodríguez or his home.

The jury found Rivera-Rodríguez guilty on all counts and

Mercado-Cruz guilty on Counts One, Three, and Four. At sentencing,

the government offered to amend the § 851 information as to

Mercado-Cruz in exchange for a waiver of his right to appeal, which

would have had the effect of lowering the applicable mandatory

minimum sentence to twenty years, rather than life. Mercado-Cruz

refused the deal. The court sentenced him to the mandatory term of

life imprisonment as to Count One and to two terms of 262 months'

imprisonment as to Counts Three and Four, to be served

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concurrently.6 The court sentenced Rivera-Rodríguez to a term of

120 months' imprisonment as to each count to be served concurrently

with each other. This timely appeal followed.

II.

A. Rivera-Rodríguez's Claims

1. The Court's Interventions

a. Legal Framework

It is well settled that the district court is more than a

"mere moderator" in a federal jury trial. Quercia v. United States,

289 U.S. 466, 469 (1933). Among other things, the judge

"has the prerogative, and at times the duty,
of eliciting facts he deems necessary to the
clear presentation of issues. To this end he
may examine witnesses who testify, so long as
he preserves an attitude of impartiality and
guards against giving the jury an impression
that the court believes the defendant is
guilty."

United States v. Paz Uribe, 891 F.2d 396, 400-401 (1st Cir. 1989)

(quoting Llach v. United States, 739 F.2d 1322, 1329-30 (8th Cir.

1984)); see also Fed. R. Evid. 614(b) ("The court may examine a

witness regardless of who calls the witness."). The law affords

the trial court broad discretion for judicial interrogation. See

29 Charles Alan Wright & Victor James Gold, Federal Practice &

Procedure § 6235 (1997).

6
The court properly grouped these sentences pursuant to
U.S.S.G. § 3D1.2(d).

-7-
 Nonetheless, in questioning witnesses, as in all aspects of

trial administration, the court must scrupulously avoid any

appearance of partiality, lest it run afoul of the maxim that

"'[p]rosecution and judgment are two quite separate functions in

the administration of justice; they must not merge.'" United

States v. Norris, 873 F.2d 1519, 1527 (D.C. Cir. 1989) (quoting

United States v. Marzano, 149 F.2d 923, 926 (2d Cir. 1945)

(alteration in original)). Each judicial intervention raises the

possibility that the jury will perceive the court as biased toward

one party or another. See Starr v. United States, 153 U.S. 614,

626 (1894) ("It is obvious that under any system of jury trials the

influence of the trial judge on the jury is necessarily and

properly of great weight, and that his lightest word or intimation

is received with deference, and may prove controlling."). To

determine whether the jury would perceive bias, we often must

examine each intervention in the context of the trial as a whole.

See United States v. Polito, 856 F.2d 414, 418 (1st Cir. 1988).

Where, as here, a convicted defendant claims that the trial

court overstepped its bounds and gave an appearance of judicial

bias that requires a new trial, "'we consider whether the comments

were improper and, if so, whether the complaining party can show

serious prejudice.'" United States v. Ayala-Vazquez, 751 F.3d 1,

24 (1st Cir. 2014) (quoting United States v. DeCologero, 530 F.3d

36, 56 (1st Cir. 2008)); see also Logue v. Dore, 103 F.3d 1040,

-8-
1045 (1st Cir. 1997) ("An inquiry into the judge's conduct of the

trial necessarily turns on the question of whether the complaining

party can show serious prejudice."). This requirement that the

defendant demonstrate "serious prejudice" applies even when the

defendant has made contemporaneous objections to the interventions

of the trial court and has persuaded the reviewing court that those

interventions gave the appearance of judicial bias. The

demonstration of the appearance of judicial bias is akin to a

showing of trial error. Cf. United States v. Ofray-Campos, 534

F.3d 1, 33 (1st Cir. 2008).

There then remains the question of prejudice linked to the

appearance of bias. Ordinarily, if there are preserved objections

to trial error in a criminal case (such as errors in evidentiary

rulings or jury instructions), the government has the burden of

demonstrating that the errors were not prejudicial. See, e.g.,

United States v. Jiménez, 419 F.3d 34, 41-42 (1st Cir. 2005)

(reaffirming that where "the objection is preserved, erroneous

admission of improperly seized evidence at trial is reviewed for

harmless error. . . . [and] the burden is on the government to show

that the supposed error did not affect the outcome of trial"). But

in this circumstance, when the claims of trial error involve

interventions by the court that create the appearance of bias, the

defendant retains the burden of demonstrating serious prejudice.

Ofray-Campos, 534 F.3d at 33.

-9-
 Arguing, with virtually no reference to the record, that

Rivera-Rodríguez failed to preserve his objections to the court's

interventions, the government contends that the plain error

standard of review applies to Rivera-Rodríguez's claims that the

court's interventions made his trial fundamentally unfair. The

government may be correct that two of the four interventions

discussed below were not subject to contemporaneous objections by

Rivera-Rodríguez. The absence of contemporaneous objections,

however, does not justify the application of a different prejudice

analysis, based on the third prong of the plain error standard, to

those portions of Rivera-Rodríguez's claim of fundamental

unfairness involving the interventions not subject to

contemporaneous objections. Given the burden on the defendant to

demonstrate serious prejudice in a case such as this even for

preserved objections, and the substance of the serious prejudice

test, the showing required of the defendant is already comparable

to the burden on the issue of prejudice when his claim is subject

to the plain error standard.7

7
We acknowledge that the "serious prejudice" inquiry does not
formally incorporate the entirety of plain error review. The plain
error standard has a fourth element –- that "the error 'seriously
affect[s] the fairness, integrity or public reputation of judicial
proceedings.'" United States v. Olano, 507 U.S. 725, 736 (1993)
(alteration in original) (quoting United States v. Atkinson, 297
U.S. 157, 160 (1936)). However, in a case such as this, where a
serious prejudice finding means that the judge's own conduct
compromised the fundamental fairness of the trial, the improper
conduct necessarily affects the fairness, integrity, or public
reputation of judicial proceedings.

-10-
 We have not previously had occasion to explicitly define the

contours of "serious prejudice" resulting from improper judicial

intervention. In Ayala-Vazquez, 751 F.3d at 26, we looked to our

analysis of claims of prosecutorial misconduct in United States v.

Gentles, 619 F.3d 75 (1st Cir. 2010). There, we held that "the

test [for the requisite prejudice] is whether the [] misconduct so

poisoned the well that the trial's outcome was likely affected,

thus warranting a new trial." Gentles, 619 F.3d at 81 (internal

quotation marks omitted). Plain error review also requires us to

determine when an error "likely 'affected the outcome of the

district court proceedings.'" United States v. Hebshie, 549 F.3d

30, 44 (1st Cir. 2008) (quoting United States v. Olano, 507 U.S.

725, 733 (1993)). Interpreting that language, we have explained

that a trial's outcome was likely affected when there is "'a

reasonable probability that, but for [the error claimed], the

result of the proceeding would have been different.'" Hebshie, 549

F.3d at 44 (alteration in original)(quoting United States v.

Padilla, 415 F.3d 211, 221 (1st Cir. 2005)(en banc)). Accordingly,

improper judicial intervention "seriously prejudiced" a defendant's

case when we find that there is a reasonable probability that, but

for the error, the verdict would have been different. Moreover, in

cases with multiple judicial interventions, determining the

appearance of bias and the prejudicial effect of that bias

-11-
generally involves a cumulative effect inquiry.8 See Polito, 856

F.2d at 418.

In conducting that inquiry, we "consider[] 'isolated

incidents in light of the entire transcript so as to guard against

magnification on appeal of instances which were of little

importance in their setting.'" United States v. Candelaria-Silva,

166 F.3d 19, 35 (1st Cir. 1999) (quoting United States v. Montas,

41 F.3d 775, 779 (1st Cir. 1994)). In this context, the Supreme

Court has held that "expressions of impatience, dissatisfaction,

annoyance, and even anger . . . are within the bounds of what

imperfect men and women . . . sometimes display. A judge's

ordinary efforts at courtroom administration -- even a stern and

short-tempered judge's ordinary efforts at courtroom administration

-- remain immune" to claims of judicial bias. Liteky v. United

States, 510 U.S. 540, 555-56 (1994).

8
There is a practical reason to examine the cumulative effect
of multiple interventions in a case involving a demand for a new
trial on the basis of the appearance of judicial bias. An initial
intervention by the judge that makes defense counsel uneasy may not
justify an objection from counsel, who is sensibly reluctant to
challenge the judge prematurely. Over the course of the trial,
however, if those one-sided judicial interventions multiply,
defense counsel may then realize that he or she must object on the
basis of the appearance of judicial bias, citing the cumulative
effect of the judge's one-sided interventions. Cf. United States
v. Tilghman, 134 F.3d 414, 417 (D.C. Cir. 1998) (stating that "when
reviewing [immediately objected-to] questions [of the judge] we
must review the record as a whole, including [previously
unobjected-to] questions [from a prior day of trial]").

-12-
 In focusing on the appearance of bias, courts have noted that

the concern with judicial interrogation is not with "the damaging

truth that the questions might uncover." United States v. Martin,

189 F.3d 547, 554 (7th Cir. 1999). Accordingly, if a trial court's

questioning of a witness exposes bad facts, inconsistencies, or

weaknesses in the case itself, the exposure itself is not the

worrisome prejudice. Prejudice becomes problematic when the court

gives jurors the impression that it has an opinion on the correct

or desirable outcome of the case. See id.; see also Rocha v. Great

Am. Ins. Co., 850 F.2d 1095, 1100 (6th Cir. 1988). To this end, we

have stressed that "where the judge participates actively, the

judge's participation must be balanced; he cannot become an

advocate or otherwise use his judicial powers to advantage or

disadvantage a party unfairly." Cunan, 152 F.3d at 37 (internal

quotation marks omitted). It is according to this "standard of

fairness and impartiality" that we examine claims of prejudice.

Id. More specifically, to be successful on appeal, a defendant

must demonstrate that (1) the court's intervention gave the

appearance of bias and (2) the apparent bias seriously prejudiced

him.

b. The Testimony Against Rivera-Rodríguez

The evidence specifically implicating Rivera-Rodríguez was

limited to the testimony of two cooperating witnesses -- Cunta and

Marruecos. Cunta testified that in 2006 Rivera-Rodríguez set up a

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lookout scheme for the Praxedes Santiago drug point, involving the

use of hand-held radios to listen for police and to communicate

when they were in the area. According to Cunta, Rivera-Rodríguez

would pay two lookouts stationed at the entrance of the housing

project and provide them with radios each day. Cunta testified

that on one occasion he saw hand-held radios charging in Rivera-

Rodríguez's living room. Cunta also testified that Rivera-

Rodríguez acted as a runner for cocaine in 2007.

Early in Cunta's testimony, the government sought to put his

plea agreement into evidence and began asking him questions about

it. During this line of questioning, the district court intervened

to ask a series of leading questions. Recognizing the difficulties

of capturing the dynamics of a trial from the cold record, we set

forth at some length the exchanges, bench conferences, and defense

objections that preceded the court's intervention:

BY MS. MELENDEZ-RIVERA [special assistant
United States Attorney]:

Q. Sir, please take a look at what has been
marked Government ID Number 30. Do you
recognize it, sir?

A. Yes, I recognize it. It's got my initials.

MS. MELENDEZ-RIVERA: And we move to mark it as
an exhibit.

THE COURT: Sure. It's the Plea Agreement.

MS. MELENDEZ-RIVERA: Yes, Your Honor.

THE COURT: Received in evidence.

-14-
(At 1:42 PM, Government's Exhibit Number 30
admitted into evidence.)

MS. MELENDEZ-RIVERA: It's the Plea Agreement
and the plea supplement, also.

THE COURT: Very well. So you plead guilty in
this case, correct?

THE WITNESS: Yes, I plead guilty.

BY MS. MELENDEZ-RIVERA:

Q. Why did you plead guilty in this case, sir?

A. Because what I was doing is true.

Q. When you entered into a Plea Agreement with
the Government, what did you get in exchange
for the Plea Agreement, sir?

A. In exchange I was going to get a
recommendation so my sentence would be
lowered.

Q. How many years or months were you
exchanging for the Plea Agreement?

A. I signed for five years.

MS. MELENDEZ-RIVERA: Let the record reflect
that we are publishing to the jury what has
been marked Government Exhibit Number 30.

MR. LINCOLN-SAN-JUAN: Your Honor, may we
approach a moment?

(Bench conference held.)

THE COURT: Yes, Mr. Lincoln.

MR. LINCOLN-SAN-JUAN: This is not an accurate
reflection, and the prosecutor must know that,
what the Plea Agreement contains, number one,
and --

THE COURT: What --

-15-
MR. LINCOLN-SAN-JUAN: And, second, it's not
what he gets in exchange, because the
Government has still to determine.

THE COURT: I don't expect him to answer those
questions. Remember, he's a lay person. He
says, I signed for four years. He should know
that I give whatever I want.

MR. LINCOLN-SAN-JUAN: He didn't sign for five
years as such. That's number one.

MS. MELENDEZ-RIVERA: Well --

MR. LINCOLN-SAN-JUAN: Let me explain.

MS. MELENDEZ-RIVERA: Okay. Go ahead.

MR. LINCOLN-SAN-JUAN: Number two, she's saying
in exchange for your cooperation. That's not
an exchange for cooperation.

MS. MELENDEZ-RIVERA: I didn't say cooperation,
Your Honor.

MR. LINCOLN-SAN-JUAN: That's part of a general
Plea Agreement without even getting into the
cooperation part.

MS. MELENDEZ-RIVERA: I didn't say cooperation,
Your Honor.

MR. LINCOLN-SAN-JUAN: So he's expecting to get
below that actually.

THE COURT: I think all this is going to come
out, if you let her do that.

MR. LINCOLN-SAN-JUAN: I'm not sure it's coming
out.

THE COURT: If not, you can ask.

MR. LINCOLN-SAN-JUAN: But I want the leeway to
get into that.

THE COURT: Absolutely.

-16-
MS. MELENDEZ-RIVERA: Well, Your Honor --

THE COURT: I'm sure that by the time we are
over, everyone's going to get to know what
this is.

MR. LINCOLN-SAN-JUAN: I don't want then
objections, he's a lay person, and the
Government can get to ask you very cleanly
just five years --

MS. MELENDEZ-RIVERA: No, no, no, no. I
mentioned --

MR. LINCOLN-SAN-JUAN: I'm just saying, I'll
let you do whatever you want. Let me do my
part.

MS. MELENDEZ-RIVERA: No, no. I --

THE COURT: It's okay. We understand each
other. Go ahead.

(Bench conference concluded.)

BY MS. MELENDEZ-RIVERA:

Q. Sir, going back to your plea agreement, you
mentioned that you recognized what has been
marked Exhibit for the Government Number 30.
When you entered into the Plea Agreement with
the Government, who explained to you what was
contained in this document?

A. The lawyer, my lawyer explained it to me
and the AUSA.

MR. LINCOLN-SAN-JUAN: Can we have the name of
the AUSA, if he knows, Your Honor?

THE COURT: Do you remember the name of the
Assistant U.S. Attorney who explained that to
you?

THE WITNESS: The name? Rosaida Melendez.

-17-
 With this exchange having been completed, the court began its

own questioning of the government's witness:

THE COURT: So let me see if I can help you.
You pled before me, correct?

THE WITNESS: Yes.

THE COURT: And I explained to you what were
the potential penalties that you could be
getting if you pled guilty?

THE WITNESS: Yes.

THE COURT: And I explained to you also that
irrespective of whatever your Plea Agreement
said, I retained discretion to sentence you
under the Statute any way that I want to
sentence you, correct?

THE WITNESS: Yes.

THE COURT: And I also explained to you that
if you were to cooperate, you had an
obligation to give complete, truthful, honest
answers to questions, correct?

THE WITNESS: Yes.

THE COURT: And if you didn’t, you would then
face additional penalties for perjury or for
making false statements?

THE WITNESS: Yes.

THE COURT: And for obstruction of justice?

THE WITNESS: Yes.

THE COURT: I told you also, remember, that
once your cooperation is over, the Government
may or may not recommend that you be given
some sort of reduction. Do you understand
that?

THE WITNESS: Yes.

-18-
THE COURT: And it was then up to me to decide
whether I would do that or not, correct?

THE WITNESS: Yes.

THE COURT: Okay. Go ahead. So when you say
you signed for five years, that is your
expectation?

THE WITNESS: Yes.

THE COURT: But it could be that or it could
be triple that?

MR. LINCOLN-SAN-JUAN: Your Honor.

THE WITNESS: Yes.

THE COURT: Or it could be anything that I
want to give you, correct?

THE WITNESS: That is so.

THE COURT: Okay.

MR. LINCOLN-SAN-JUAN: May I approach?

MR. BERKOWITZ [Rivera-Rodríguez's counsel]:
Me, too.

(Bench conference held)

THE COURT: What is the problem now?

MR. LINCOLN-SAN-JUAN: Yes, Your Honor. I have
great difficulty with the Court acting in
essence as to setting the conditions to the
defendant.

THE COURT: You can object to it.

MR. BERKOWITZ: We do.

MR. LINCOLN-SAN-JUAN: Yes, I am. This is what
I’m noting.

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THE COURT: Noted, and denied, because I see
you people are having difficulty getting
together on how to figure this out.

MR. LINCOLN-SAN-JUAN: That's the problem, Your
Honor.

THE COURT: And I just want to move along, and
I just wanted to get this out --

MR. LINCOLN-SAN-JUAN: But that is the problem.
If they don't know how to set forth their case
--

THE COURT: They know how to do it, and you
know how to do it, too.

MR. LINCOLN-SAN-JUAN: But when you tell the
jury this is your expectation, that -- we all
know, or at least I know, let me speak for
myself, that what you have just told the
witness, while technically and judicially
accurate, is far from reality.

THE COURT: Well, you'd be surprised. I don't
know.

MR. LINCOLN-SAN-JUAN: I very rarely have met a
cooperating witness, first of all, who expects
to get what is on the front part of the Plea
Agreement. They expect to get less.

THE COURT: You have rarely seen that I give a
cooperating witness what the Government asks
me to give them. I do what I want.

MR. LINCOLN-SAN-JUAN: I know. I've seen you
give them one hour. But you've mentioned the
possibility of higher. You've only mentioned
the possibility of higher. You haven't
mentioned lower.

THE COURT: You can ask him that.

MR. BERKOWITZ: It comes from more authority if
it comes from you.

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 THE COURT: You want me to ask that, too? I'll
ask that.9

MR. LINCOLN-SAN-JUAN: I think it should --

THE COURT: I think we are wasting time with
this. I think you have made your point, and
let's go.

(Bench conference concluded.)

The government's second cooperating witness, Marruecos,

testified that he observed Rivera-Rodríguez distributing the hand-

held radios and saw the radios charging in Rivera-Rodríguez's home.

During the testimony of previous witnesses, DEA informant José

Montañez-Santos and Puerto Rico Police Officer Marisol Torres,

regarding the general operations of the drug conspiracy, the

government introduced a hand-held radio found on Marruecos's person

upon his arrest. When confronted with this evidence during cross-

examination, however, Marruecos testified that it was not the same

type of radio as those distributed by Rivera-Rodríguez (they were

"a bit smaller"). He further claimed that Rivera-Rodríguez took

the place of a woman named Celita as a runner for cocaine.

The district court intervened during Marruecos's testimony on

two occasions. First, the court again intervened to emphasize the

importance of a cooperating witness telling the truth. The entire

9
It is unclear what precise question the court intended to
ask, but it did not ultimately ask any further questions related to
this inquiry.

-21-
exchange, culminating in the court's intervention at the end,

proceeded as follows:

[BY MS. MELENDEZ-RIVERA:]

Q. Sir, I'm going to show you what has been
marked Government ID Number 36. . . . Sir, do
you recognize that document?

A. Yes.

Q. Why do you recognize it?

A. Because my initials are on it.

Q. Can you explain what is the document about?

A. This is a plea that I signed for the time
that I was going to be given, because I was
guilty of what I was being accused.

Q. Taking a look at what is being depicted in
the screen, sir, is it the Plea Agreement that
you signed?

A. Yes.

Q. When did you sign -- when did you sign this
Plea Agreement, sir?

A. Approximately a month ago. I signed this
here, with the -- with the Judge.

Q. Okay. Were you advised that this is only a
recommendation that the United States
Government will do to this Court regarding the
sentencing in this case for you?

A. Yes.

Q. Sir, regarding the amount of drugs that
were -- for which -- the one that you are held
responsible, is that the same amount of drugs
that you handled while you were at this drug
trafficking organization?

A. More than that was sold.

-22-
 Q. So part of the plea -- it's correct if I
state that part of the Plea Agreement was that
you were going to be pleading guilty for a
lesser amount than the one that you used to
work with?

A. I don't understand.

THE COURT: You are admitting that you dealt
with more drugs than that?10

THE WITNESS: Yes.

THE COURT: That's it. Go ahead.

BY MS. MELENDEZ-RIVERA:
Q. Regarding the recommendation about the
months that you were going to be recommended,
do you remember how much, how many?

A. From 87 to 108.

MR. LINCOLN-SAN-JUAN: The document -- the
document is being viewed by the witness, and
it has the month there.

THE COURT: He's being asked, and he's saying
87 to 108. Go ahead.

BY MS. MELENDEZ-RIVERA:
Q. Sir, regarding the Plea Supplement that you
signed, what was required from you regarding
the agreement with the Government?

A. To say the truth at all times.

Q. Regarding the kind of cooperation that the
Government was expecting from you, did you
receive any advice? What did -- the Government
was expecting from you at the time you signed
the Plea Agreement, sir?

10
This intervention, and the two that follow it, served the
purpose of clarifying testimony already given and were not
problematic. They are not the focus of our analysis here.

-23-
MR. LINCOLN-SAN-JUAN: Your Honor, he has no
way of knowing what the Government expects.

THE COURT: Well, I think he already answered
the question.

BY MS. MELENDEZ-RIVERA:
Q. Were you advised that the United States
Government is not compelled to file any motion
on your behalf for your cooperation in this
case?

A. Yes.

Q. Were you also advised that the only person
that can -- that is going to be deciding about
your sentencing is the Judge presiding in this
courtroom?

A. Yes.

Q. Sir, were any threats made to you for your
testimony?

A. No.

Q. Were you intimidated to testify, sir?

A. No.

Q. Sir, on how many occasions did you meet
with the agents? DEA agents or police officer
agents.

A. On many occasions.

Q. On how many occasions did you meet with the
prosecutors?

A. On many occasions.

Q. What were you told from the prosecutors or
the DEA agents?

MR. LINCOLN-SAN-JUAN: Your Honor, this is
self-serving, merely self-serving. We know the
truth --

-24-
 THE COURT: The thing is that everybody here
knows, everybody here knows and is quite clear
that he’s testifying, the Government always
expects him to say the truth, and of course
he’s hoping that I consider that at the
appropriate time that I make a sentence if you
make a recommendation. That’s all. That’s
what happens.

The court's second challenged intervention during the

questioning of Marruecos occurred while the government was trying

to establish the proximity of the lookouts and their hand-held

radios to Rivera-Rodríguez's home. Marruecos was having trouble

marking the location of the home on an exhibit when the court

intervened as follows:

MS. MELENDEZ-RIVERA: You mentioned that you
went to Carlos Rivera-Rodríguez house. Can you
show where is that [showing the witness an
exhibit]?

[THE WITNESS THROUGH THE INTERPRETER]:11 It --
the mark came a little bit -- it was made a
little bit down.

MS. MELENDEZ-RIVERA: You can erase it.

[THE WITNESS THROUGH THE INTERPRETER]: Do we
erase?

MS. MELENDEZ-RIVERA: Yes.

THE COURT: I think -- is the house more or
less in front of the place where you had seen
the scanners?

11
This portion of the transcript, and some others when the
witness was apparently speaking in Spanish but not directly
answering a question, attributes the testimony to the interpreter
herself. The parties do not address this discrepancy. We will
therefore treat this portion of the transcript as if it conveys, as
the context suggests, the translated statements of the witness.

-25-
 THE WITNESS: Yes.

c. Rivera-Rodríguez's Defense

In response to the testimony of the two cooperating

witnesses, Rivera-Rodríguez took the stand to tell his side of the

story. He testified that he was "totally against drugs" and

described his eldest son's struggle with addiction. He took his

son to drug-rehabilitation programs and tried to help him quit. He

also testified that he would go to the Praxedes Santiago drug point

and tell the dealers not to sell to his son. On one such occasion,

he got into a heated exchange (a "run-in") with Marruecos. He

insisted that he never invited any of the drug dealers from the

drug point, including Marruecos and Cunta, into his home because he

did not want any of them there. He further testified that he sold

jewelry ("fantasía") out of his car and trailer to earn money. At

times he would take the car into the Praxedes Santiago Public

Housing Project to sell items and collect payments. According to

Rivera-Rodríguez, a woman named Celita, who was charged in the

indictment here as a drug runner, was one of his regular customers.

He testified that he would go to her home, but not inside it, to

deliver her purchases and collect payment from her -- testimony

that would become central to the court's final intervention. He

denied running drugs with or for her at any time.

Rivera-Rodríguez also called Keila Flores-Ramos, the vice

president of the Praxedes Santiago Public Housing Project, to

-26-
testify on his behalf. She testified that she was aware of the

drug point within the housing project and had seen many of the drug

dealers and users, but she had never observed Rivera-Rodríguez

selling drugs or otherwise be involved in the drug trade. He

nonetheless went into the housing project daily to collect his son,

who was a drug addict. Lastly, she testified that Rivera-Rodríguez

sold fantasía in the housing project and that he "visited"12 Celita

approximately once a week to bring jewelry and collect payment.

d. The Government's Closing Argument

During the government's closing argument, it characterized

Rivera-Rodríguez's testimony as inconsistent with that of his own

witness -- Flores-Ramos -- by specifically focusing on whether he

ever went inside Celita's home:

[MS. MELENDEZ-RIVERA:] Going back to Keila
Flores, their witness, I submit here she
testified seeing Carlos Rivera-Rodríguez going
into Celita's house. Do you remember Celita's
name? The defendant yesterday took the stand.
I submit that in cross-examination, he denied
entering into Celita's house.

Attorney Berkowitz objected in open court and was not asked

to provide the basis for the objection. The court then overruled

defense counsel's objection and went on to remark, "That's exactly

what he said." Although the court's statement is accurate --

Rivera-Rodríguez did deny entering Celita's home -- its

12
This is the precise term used in the yes-or-no questions put
to Flores-Ramos, which she answered affirmatively.

-27-
intervention seemed to confirm the government's insistence that

there was a discrepancy between Rivera-Rodríguez's testimony and

Flores-Ramos's as to whether he had entered Celita's home.13

This alleged discrepancy was important because of its

possible effect on the jury's evaluation of Rivera-Rodríguez's

credibility. Also, the government's insistence that Rivera-

Rodríguez entered Celita's home had substantive significance. As

we have described, Celita functioned as a drug runner and Rivera-

Rodríguez was accused of helping her in that enterprise, which

would likely have involved retrieving packages of drugs from her

home. Flores-Ramos never testified that she had seen Rivera-

Rodríguez inside Celita's home. Instead, she had answered

affirmatively when asked whether he "visited" her as part of his

fantasía business. Rivera-Rodríguez testified that he had indeed

13
Defense counsel addressed the subject again with the court
after closing arguments and outside the presence of the jury during
a bench conference on another issue:

MR. BERKOWITZ: Your Honor, while we're here, I want
to make sure we have clear on the record my objections
during the closings was to the two mentions that my
client went into Celita's house.
THE COURT: Well, that's what I understood the evidence to say.
MR. BERKOWITZ: I understood different.
THE COURT: Well, you know, that's why I said [(the court
did not finish this train of thought)] . . .

This exchange confirms that the court intended to convey its
understanding of the evidence, which was favorable to the
government, to the jury.

-28-
been outside the house to deliver jewelry and collect payment. He

insisted that he had never been inside the home.

2. The Appearance of Bias

The case against Rivera-Rodríguez required the jury to weigh

the testimony of two cooperating witnesses against the testimony of

Rivera-Rodríguez and Flores-Ramos. In such a classic credibility

contest between the government's witnesses and the defendant's, the

court must take particular care to avoid any appearance that it

favors the government's view of the case. See, e.g., United States

v. Tilghman, 134 F.3d 414, 418-19 (D.C. Cir. 1998) (finding

judicial intervention impermissible when it "may have given the

jury the impression that the judge doubted the defendant's

credibility. The judge's questions could have been particularly

damaging because . . . credibility [was] unusually critical to his

defense" (internal quotation mark omitted)); see also United States

v. Barnhart, 599 F.3d 737, 745 (7th Cir. 2010) (finding that the

court's conduct suggested to the jury that he doubted the

plausibility of the defendant's version of events -- it "went

beyond mere clarification and instead gave the impression that the

judge disbelieved [the] defense"). Here the court did not exercise

the requisite care.

a. The Court's Questioning about Plea Agreements

It is common practice for the government to question

cooperating witnesses about the terms of their plea agreements to

-29-
preemptively fend off defense counsels' inevitable attacks on their

credibility. See, e.g., United States v. Kinsella, 622 F.3d 75, 77

(1st Cir. 2010) (describing how defense counsel "aggressively

confronted [a cooperating witness] on cross-examination, using the

plea agreement and light sentence to attack his credibility");

United States v. LiCausi, 167 F.3d 36, 47 (1st Cir. 1999)

(upholding a conviction based on cooperating witness testimony

where "the government elicited on direct examination the

cooperation arrangements for each witness and introduced into

evidence their plea agreements"). By introducing the plea

agreement and reviewing it with a cooperating witness on direct

examination, the government both defends against the argument of

the defense that a cooperating witness would say anything to get a

deal, and attempts to reinforce the credibility of the witness by

emphasizing the importance of testifying truthfully.

Here, after becoming frustrated with the government's attempt

to engage in this type of questioning, the court intervened and

took over the prosecutor's role. Indeed, the court first

interjected by saying, "Let me see if I can help you."14 The court

then asked the cooperating witness a series of leading questions

designed to emphasize to the jury the obligation of the witness to

14
It is unclear whom the judge was attempting to "help" -- the
government or the cooperating witness. The distinction is not
material to our analysis as helping either would benefit the
government's case.

-30-
tell the truth, and the consequences for the witness if he did not.

In the instance of the second cooperating witness -- Marruecos --

the court intervened at the end of the government's inquiry about

his plea agreement to make a statement that also emphasized the

importance of telling the truth as a cooperating witness.

Jurors would expect the government's attorney to pose

questions to cooperating witnesses emphasizing their obligation to

tell the truth. When the court visibly and forcefully assumes the

prosecution's role, as it did here, the court runs the risk of

suggesting to the jury that the court itself has a stake in the

jurors' understanding of the obligation of the government's

witnesses to tell the truth. Indeed, as Attorney Lincoln-San-Juan

emphasized during the sidebar conference on his objection to the

court's questions, it is problematic for the court to emphasize to

the jury the stake that the cooperating witness has under the plea

agreement in testifying truthfully, without equally emphasizing, as

defense counsel would surely do, the incentive that the witness has

to say anything, truthful or not, that might help the government's

case and thus curry favor with the prosecutor who might recommend

a lower sentence.15

As the excerpts above demonstrate, though the court did ask

the witness one question pertaining to the government's ability to

15
As the transcript reveals, see supra, Attorney Berkowitz,
Rivera-Rodríguez's counsel, joined the objection.

-31-
recommend a reduced sentence on the basis of his cooperation, its

inquiry focused much more heavily on the witness's obligation to

tell the truth. Moreover, when the court again intervened during

Marruecos's testimony, it stressed that "everybody here knows and

is quite clear that he's testifying, the Government always expects

him to say the truth," without any reference to the potential

benefit to the witness, in the form of the government's

recommendation for a reduced sentence, if he gives testimony that

helps the government's case. Given this extended one-sided inquiry

about truthfulness, the court's intervention served to enhance the

credibility of the government's key witnesses, and thereby had an

effect similar to the judicial conduct found impermissible in

Barnhart, 599 F.3d at 745. See supra.

b. The Court's Intervention during
Testimony about the Location of Rivera-
Rodríguez's House

The location of Rivera-Rodríguez's house, which was right

outside the gates to the Praxedes Santiago Public Housing Project,

was important to the government's case because that location linked

Rivera-Rodríguez to the lookouts. As recounted above, the witness,

Marruecos, was apparently having trouble marking the location of

the house on an exhibit, as the government had asked him to do. To

get over this hurdle, the court again assumed the prosecutor's role

and asked a leading question ("[I]s the house more or less in front

of the place where you had seen the scanners?") that made the

-32-
government's point about the proximity of Rivera-Rodríguez's house

to the hand-held radios.

Thus, the court's question had the effect of moving the

prosecutor and the witness away from the line of discussion that

was suggesting confusion and imprecision on an important point and

towards a description of the location credibly anchored in the

witness's testimony. In short, the court's question was a much

more effective way to accomplish what the prosecutor was trying to

accomplish, and it added to the overall sense that the judge was

helping the government make its case.

c. The Court's Intervention during Closing Arguments

As described above, the government was attempting to paint

Rivera-Rodríguez as a liar, a portrayal important to its case

because he took the stand in his own defense. The government also

wanted to establish that he went inside Celita's home because that

was presumably where she kept the drug packages she delivered as a

runner.16 To make these arguments the government tried to identify

an inconsistency between Rivera-Rodríguez's testimony and the

testimony of the defense's only other witness -- Flores-Ramos.

Defense counsel objected to the government's characterization of

the testimony of both witnesses.

16
The government's cooperating witness, Cunta, had testified
that Celita and Rivera-Rodríguez both operated as runners and that
she wanted to move the drugs from her house to his in light of
police activity in the Praxedes Santiago Public Housing Project.

-33-
 In dealing with this fairly routine objection to a closing

argument that characterizes testimony, the court did not simply

tell the jury, as judges usually do in this circumstance, that it

was their duty to decide what the witnesses said. See, e.g.,

United States v. Joyner, 191 F.3d 47, 53-54 (1st Cir. 1999)

(finding that "the district court quickly and adequately addressed"

a similar objection during closing arguments by immediately

instructing the jury, "Members of the jury, you will take your own

recollection of the evidence and not what either counsel has told

you the evidence is"). Instead, the court overruled the objection

and then went on to remark, "That's exactly what he said." With

this intervention, the court once again helped the government with

its case by appearing to agree with the government that there was

an inconsistency between Rivera-Rodríguez's testimony and Flores-

Ramos's testimony on an issue important to the government's theory

of the case -- whether Rivera-Rodríguez had entered Celita's home.

This intervention was also unreasonable fact-finding by the court

on an issue that should have been left to the jury. See Quercia,

289 U.S. at 470 ("[A trial judge] may not assume the role of a

witness. He may analyze and dissect the evidence, but he may not

either distort it or add to it."). Making matters worse, the

court's statement came during closing arguments -- just before the

case went to the jury.

-34-
 d. The Cumulative Effect of the Court's Interventions

Our inquiry as to the effect of the court's interventions

takes into account the record as a whole, assessing the cumulative

effect of the interventions on the trial. See Polito, 856 F.2d at

418 (noting that "[c]harges of partiality should be judged not on

an isolated comment or two, but on the record as a whole").

Although the court's interventions thus should not be viewed in

isolation, their cumulative effect cannot be understood without

first assessing their individual significance in the context of the

trial at the time they occurred.

The four interventions17 of the judge just described all had

a common theme -- the court helping the government with its case.

First, through questioning and statements, the court emphasized to

the jury the truth-telling obligations of the cooperating

witnesses. Next, the court asked a leading question to help

establish the proximity of Rivera-Rodríguez's house to the location

where the lookouts were stationed. Finally, the court suggested

that the prosecutor accurately recounted an inconsistency in the

defendant's case. Taken together, these interventions, and the

consistent appearance they conveyed of the court helping the

government with its case, inescapably conveyed an appearance of

17
The four interventions we refer to include the two
interventions (one with each cooperating witness) regarding truth-
telling obligations, the intervention during the questioning of
Marruecos about the location of Rivera-Rodríguez's home, and the
intervention during the government's closing argument.

-35-
judicial bias to the jury in favor of the government and against

Rivera-Rodríguez.

3. Serious Prejudice

Having determined that the court's interventions

impermissibly gave the appearance of judicial bias to the jury, and

hence were akin to trial error, we now turn to the question of

serious prejudice.

We begin by considering the evidence against Rivera-

Rodríguez, which was far from overwhelming. There were no video or

audio recordings that implicated Rivera-Rodríguez in the

conspiracy. The government's case depended almost entirely on the

testimony of two cooperating witnesses.18 Impatient with the

government's awkward questioning of Cunta, the first cooperating

witness, the court intervened in a manner that bolstered his

credibility, and then later similarly intervened to bolster the

credibility of Marruecos, the second cooperating witness.

Moreover, when intervening, the court employed leading questions,

which are generally not permissible on direct examination. See

Fed. R. Evid. 611(c). The court's assumption of the prosecutor's

role in questioning the cooperating witnesses, and its use of

leading questions to facilitate the inquiry, undoubtedly made the

18
The only other piece of evidence introduced against Rivera-
Rodríguez was the hand-held radio that was admittedly different
from the ones allegedly used by Rivera-Rodríguez.

-36-
trial more efficient, but they also created the impression that the

court favored the government's version of events.

Importantly, there were a number of crucial points of fact on

which the testimony of the cooperating witnesses and that of

Rivera-Rodríguez and Flores-Ramos were at odds. According to

Rivera-Rodríguez, he entered the housing project only to either

retrieve his son, who was addicted to drugs, or to sell jewelry to

residents. The cooperating witnesses claimed that he entered the

Praxedes Santiago Public Housing Project daily to deliver the

scanners and pay the lookouts. Marruecos also testified that

Rivera-Rodríguez briefly served as a drug-runner for cocaine,

working with Celita. On these disputed facts the court intervened

to help the government make its case, first by emphasizing the

proximity of Rivera-Rodríguez's house to the location of the hand-

held radios, and then by incorrectly suggesting to the jury that

Rivera-Rodríguez's own witness, Flores-Ramos, had contradicted his

insistence that he never entered Celita's home.

The judge's continued one-sided interventions here --

repeated even after counsel lodged an objection to the judge's

first foray -- cumulatively gave jurors the impression that the

court favored a guilty verdict, and hence made the jury more

inclined to believe the government's version of events. Without

those improper interventions, there is a reasonable probability

-37-
that Rivera-Rodríguez would not have been convicted.19 Accordingly,

we must vacate Rivera-Rodríguez's conviction.20

19
In its brief and at oral argument, the government contended
that the court's jury instructions at the outset of the trial
mitigated any potential prejudice caused by its later
interventions. Specifically, the court instructed the jury "not
[to] read from my intervention that I may have any message as to
what your verdict should be." The D.C. Circuit and the Second
Circuit have adopted the position that where "the trial judge asked
questions, objected to by counsel, that could have influenced the
jury's assessment of the defendant's veracity, such interference
with jury fact-finding cannot be cured by standard jury
instructions." Tilghman, 134 F.3d at 421 (adopting by reference
the Second Circuit's approach in United States v. Filani, 74 F.3d
378, 386 (2d Cir. 1996)); see also United States v. Hoker, 483 F.2d
359, 368 (5th Cir. 1973) (holding that "[n]o amount of boiler plate
instructions to the jury -- not to draw any inferences as to the
judge's feelings about the facts from his asking questions, or that
they are free to disregard factual comment by the judge, or as to
the presumption of innocence -- could be expected to erase from a
jury's mind the part taken in this trial by the district judge").
Categorical rules are not helpful in cases such as this. Sometimes
the court's jury instructions about how the jury should regard the
court's interventions and questioning may mitigate prejudice and
other times they may not. In this case they did not serve to
mitigate the serious prejudice.
20
Because we hold that Rivera-Rodríguez's conviction must be
vacated on the basis of the district court's improper intervention,
we need not reach the other issues he presented on appeal,
including whether there was prosecutorial misconduct rising to a
level that would also warrant a new trial.

-38-
B. Mercado-Cruz's Claims21

1. Timeliness of § 851 Information

Just prior to jury impanelment, the following exchange took

place concerning the government's filing of its information

pursuant to 21 U.S.C. § 851, listing the prior convictions that

would trigger a life sentence for Mercado-Cruz:

THE COURT: Let me ask Mr. Lincoln whether he
talked to his client, because we have been
dealing with this, you know, for a long, long
time.

MR. LINCOLN-SAN-JUAN: Yes, I talked to him
many times, and he rejected a plea offer of 77
to 96 a while back. I thought if he had been
convicted, because he was facing [another
trial in state court], he might consider
pleading here. I don’t know. The prosecutors
tell me today that they would still be willing
to, . . .

MR. BAZAN-GONZALEZ: Are we going to . . .

MR. LINCOLN-SAN-JUAN: Let me talk to the
defendant, and I will signal you and we can
proceed to trial. I’m not going to argue he
didn’t receive notice.

MR. BAZAN-GONZALEZ: So we may start with the
jury once Mr. Lincoln has spoken with his
client --

21
To the extent that Mercado-Cruz attempts to adopt Rivera-
Rodríguez's argument that the improper judicial intervention
rendered his trial fundamentally unfair, we decline to entertain
the argument. We have long held that co-defendants cannot simply
adopt each others' arguments wholesale. "[T]o be meaningful, the
arguments adopted must be readily transferrable from the
proponent's case to the adopter's case." United States v. David,
940 F.2d 722, 737 (1st Cir. 1991). The case against Mercado-Cruz
was markedly stronger than the case against Rivera-Rodríguez.

-39-
 THE COURT: You don’t have to file before
starting. That’s the agreement --

MS. MELENDEZ-RIVERA: Fine.

MR. LINCOLN-SAN-JUAN: We’ve seen the document,
and I’ve explained to my client all that --

THE COURT: That’s fine. Let’s proceed.

Mercado-Cruz argues that he was improperly sentenced to life

in prison because the government failed to timely file the § 851

information, and, therefore, the criminal history included therein

should not have been attributed to him. Section 851(a) provides

that, as a prerequisite for seeking a mandatory sentence based on

a defendant's prior drug convictions, "before trial, or before

entry of a plea of guilty, the United States attorney file[] an

information with the court (and serve[] a copy of such information

on the person or counsel for the person) stating in writing the

previous convictions to be relied upon." 21 U.S.C. § 851(a).

Though these temporal requirements have been strictly enforced, we

have held that "[b]ecause [they] exist for the defendant's benefit,

it makes perfect sense to give the defendant the power to waive

(and the obligation not to forfeit) strict compliance with them."

Prou v. United States, 199 F.3d 37, 47 (1st Cir. 1999); see also

id. at 46 (expressly rejecting the argument that "an enhancement

based on an untimely filing . . . is null and void").

Here, it is undisputed that the § 851 information was not

timely filed. Mercado-Cruz's appeal thus turns on whether he

-40-
waived any objection to the § 851 information on the basis of its

untimeliness. As the above colloquy reveals, the government was

prepared to file its § 851 information prior to jury selection, but

Mercado-Cruz's counsel requested, and the government agreed, that

the filing be delayed until he had the chance to speak with his

client one final time about a potential plea deal. In making this

request, Mercado-Cruz's counsel expressly stated that he would not

dispute that Mercado-Cruz had received notice of the § 851

information. The court then described the agreement between the

parties, saying to the government, "[y]ou don’t have to file before

starting. That’s the agreement." Accordingly, it is evident that

Mercado-Cruz's counsel intended to waive the temporal requirements

of § 851(a).

In United States v. Jones, 674 F.3d 88, 95 (1st Cir. 2012), we

held that there can be a valid agreement, made in aid of plea

bargaining, to waive the temporal requirements of § 851(a) and

postpone the deadline for filing the information. Mercado-Cruz

nonetheless urges that what transpired here did not constitute such

an agreement because it differed from Jones in two respects.

First, he argues that he never personally endorsed the agreement to

postpone the filing, whereas in Jones the defendant signed the

agreement. Second, he argues that the agreement did not constitute

an "explicit waiver."

-41-
 The latter argument is more easily disposed of. As discussed

above, the exchange, in open court, between the court, the

government, and defense counsel was clearly an attempt to postpone

the filing and waive any objection to its untimeliness.

Accordingly, it suffices as an agreement to explicitly waive any

timeliness objection.

As to the former argument, we find no support in case law for

the proposition that a defendant must personally waive the temporal

requirements of § 851. Rather, our previous decisions dealing with

those requirements focus on the issue of notice, and whether the

defendant was made aware of the government's intention to file a

§ 851 information before electing to go to trial or enter a guilty

plea. See, e.g., Prou, 199 F.3d at 44 n.3 ("[C]ourts occasionally

have excused untimely filings as long as the defendant has been

made aware before trial or entry of a guilty plea of both the

government's intent to seek an enhancement and the particular prior

conviction(s) upon which the government aspires to rely."). In

Prou, we reaffirmed that the requirements of § 851(a) were subject

to procedural default in the habeas corpus context (i.e., counsel's

failure to object as to the timeliness of a § 851 information at

trial or on direct appeal will render such a claim defaulted). 199

F.3d at 47. If counsel's actions can render a claim as to

timeliness defaulted, it follows that counsel can agree to forego

-42-
an objection if it is in the interest of his or her client to delay

the filing of a § 851 information.22

Following these precedents, we hold that when, as here,

defense counsel and the government agree to postpone the filing of

a § 851 information, the temporal requirements of § 851(a) are

deemed waived and replaced by the agreed-upon filing deadline.

Because here the government filed its § 851 information at the

agreed-upon time, we reject Mercado-Cruz's challenge to his life

sentence on the basis of the untimely filing of the information.

2. Application of Fair Sentencing Act (FSA)

Mercado-Cruz challenges his term of imprisonment based on the

Sentencing Guidelines changes implemented by the Fair Sentencing

Act of 2010 ("FSA"), which he contends should have applied to

modify his sentence. See 18 U.S.C. § 3582(c)(2). This argument is

moot as to his term of life imprisonment on Count One because of

our holding above that the § 851 information was not invalidated by

the timing of its filing. Due to the prior convictions enumerated

in the information, Mercado-Cruz was subject to a mandatory life

sentence regardless of any changes to the drug quantity guidelines.

See Jones, 674 F.3d at 95 ("[U]nder 21 U.S.C. § 841(b)(1)(A), a

defendant who has the requisite drug quantity and 'two or more

22
We express no opinion on whether an ineffective assistance
of counsel claim in a habeas corpus petition could have its basis
in a counsel's actions as to waiver of the procedural requirements
of § 851(a). No such claim is part of this appeal.

-43-
prior convictions for a felony drug offense' must be sentenced to

life in prison.").

However, the concurrent sentences of 262 months on Counts

Three and Four could potentially have been affected by the FSA

changes. Those sentences were based, in part, on the jury's

finding that Mercado-Cruz possessed with intent to distribute at

least five kilograms of cocaine and at least fifty grams of cocaine

base. In the FSA, Congress amended the statutory mandatory

minimums for cocaine base under 21 U.S.C. § 841(b)(1); however, it

did not change the penalties for cocaine. Accordingly, the

relevant drug quantity for the concurrent sentences on Counts Three

(cocaine base) and Four (cocaine), which were calculated using a

grouping approach, would not have changed. See

U.S.S.G. § 5G1.2(b); U.S.S.G. § 5G1.2 cmt. n.3(C) (2012) (advising

that a mandatory minimum sentence on one count should apply to the

group sentence on all counts). Accordingly, Mercado-Cruz cannot

show that the FSA should have applied to reduce his sentence.

3. Other Preserved Claims of Error

Mercado-Cruz, through counsel and by way of his pro-se brief,

raises a number of other claims of error at trial, which were

raised below and hence preserved for our review. Though we find

that none of those preserved claims provide a basis for a new

trial, we will briefly address them in turn.

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 a. Appearing Before the Jury in Prison Attire

Mercado-Cruz objected to the jury impanelment on the first day

of trial because he was dressed in prison attire. The district

court overruled the objection, stating that Mercado-Cruz had been

informed of his right to wear ordinary clothing, and it was his

responsibility to obtain that clothing. Mercado-Cruz responded by

alleging that he did not know trial was set to begin on that day,

despite the fact that the trial had long been set to begin in

October 2010, and the court had set the specific date in a

published order five days prior.

Although we have indeed held that a defendant has a

constitutional right not to be forced to wear "identifiable prison

garb" before the jury, United States v. Pina, 844 F.2d 1, 8 (1st

Cir. 1988), we have stressed that "[a] due process violation occurs

not from an accused's appearance in prison clothes but from the

compulsion that he so appear," United States v. Rodríguez-Durán,

507 F.3d 749, 777 (1st Cir. 2007) (citing Estelle v. Williams, 425

U.S. 501, 512-13 (1976)). Here, the court afforded Mercado-Cruz an

opportunity to wear different clothing and he failed to take

advantage of it. He had a substantial amount of time to arrange

for regular clothing to be available for him before the October

trial.23 Accordingly, no due process violation occurred.

23
Mercado-Cruz did not argue that he did not own any street
clothes or that he lacked the resources to obtain them. Thus, we
need not decide, as some circuits have, whether a defendant in such

-45-
 b. Testimony About his Criminal History

Mercado-Cruz cites the government's alleged solicitation of

admittedly inadmissible testimony about his criminal record. He

argues that the court erred in not granting a mistrial on the basis

of this testimony, or at least specially instructing the jury to

disregard it. The testimony at issue was limited to one response

by FBI Agent Francisco Aponte, a witness for the government. Asked

by what names he knew Mercado-Cruz, Agent Aponte testified, in

part, "It's not until I am working at the Strike Force, that we

begin the investigation, and from the criminal records, I notice

that the real name is Albert Mercado Cruz." Defense counsel

immediately objected and moved for a mistrial. At a sidebar

conference, the district court denied the motion for a mistrial,

ruling that the offending remark was spontaneous. The court

nonetheless directed counsel to instruct the witness (by way of a

written note) that he was not to mention the defendant's criminal

record. No further discussion of the matter occurred, and the

court gave no curative instruction, nor was one requested.

a situation would be constitutionally entitled to have the court
provide street clothing for him. See, e.g., Bentley v. Crist, 469
F.2d 854, 856 (9th Cir. 1972) (holding that "an accused who is
forced to stand trial in prison garb because of financial inability
to obtain other attire is under a compulsion equal to that of the
prisoner who is not allowed to don readily available civilian
attire").

-46-
 Under the circumstances, it was within the court's discretion

to deny the motion for a mistrial. United States v. Glenn, 389

F.3d 283, 287 (1st Cir. 2004) ("We will reverse a denial of a

motion for a mistrial only when the defendant shows clear prejudice

rendering the district court's denial a manifest abuse of

discretion."). The more difficult question is whether the court

erred in failing to, sua sponte, give a curative instruction.

"[C]ourts have long recognized that, within wide margins, the

potential for prejudice stemming from improper testimony or

comments can be satisfactorily dispelled by appropriate curative

instructions." United States v. Sepúlveda, 15 F.3d 1161, 1184 (1st

Cir. 1993). We have also suggested that when improper testimony

prompts a motion for a mistrial, it is advisable for the court to

give a curative instruction; however, we have never held that such

an instruction is always necessary. Cf. United States v. Torres,

162 F.3d 6, 12 (1st Cir. 1998) ("Where . . . a curative instruction

is promptly given, a mistrial is warranted only in rare

circumstances implying extreme [as opposed to simply clear]

prejudice.").

In declining to give a curative instruction sua sponte, the

court apparently determined that drawing more attention to the

spontaneous comment would do more harm than good. During the

aforementioned sidebar conference the court repeatedly said that

the best course was "not to touch [the improper testimony] with a

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ten-foot pole." Examining the factors relevant to the court's

decision here, we find no abuse of discretion, particularly in

light of the fact that a curative instruction was not specifically

requested by defense counsel. Most importantly, the objectionable

testimony consisted of one stray remark referring vaguely to

Mercado-Cruz's "criminal records" without including any details of

his criminal record. We think the risk of prejudice was not so

high as to require the court to give a special curative

instruction. Accordingly, Mercado-Cruz's claim that the court

improperly dealt with the objection fails.

c. Cumulative Error

As a last ditch effort, Mercado-Cruz argues that, even if the

trial errors he alleges (both preserved and unpreserved) in

isolation were not prejudicial, their cumulative effect was.

Sepúlveda, 15 F.3d at 1195-96 ("Individual errors, insufficient in

themselves to necessitate a new trial, may in the aggregate have a

more debilitating effect."). When confronted with a cumulative

error claim on appeal,

we must consider each such claim against the
background of the case as a whole, paying
particular weight to factors such as the
nature and number of the errors committed;
their interrelationship, if any, and combined
effect; how the district court dealt with the
errors as they arose (including the efficacy
-- or lack of efficacy -- of any remedial
efforts); and the strength of the government's
case.

-48-
 Id. at 1196. Here, as explained above and below, we find that

the district court's actions were not errors. Accordingly, we need

not conduct a cumulative error analysis.

4. Unpreserved Claims of Error24

a. Scope of Cross-Examination

Mercado-Cruz claims that the cross-examination of witness

Keila Flores-Ramos exceeded the scope of direct examination. As

described above, Rivera-Rodríguez called Flores-Ramos to testify in

his defense. On direct examination, Rivera-Rodríguez's counsel

asked Flores-Ramos questions about the Praxedes Santiago Public

Housing Project, where she lived and worked, specifically focusing

on Rivera-Rodríguez's activities there. She testified that she had

never seen Rivera-Rodríguez engaged in the drug trade there. On

cross-examination by the government, she was asked whether anyone

in the courtroom was someone whom she had seen at the drug point in

her housing project. She identified Mercado-Cruz.

24
Through his counsel and his pro-se brief, Mercado-Cruz
raises a myriad of other claims. None of these claims were
preceded by corresponding objections. Hence, to the extent that
these claims are adequately developed in the briefs, as opposed to
raised in a perfunctory manner, we review them for plain error;
otherwise we need not address them. See United States v. Zannino,
895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to in a
perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived."). Specifically, we find that
the following claims were raised too perfunctorily to warrant
review: (1) that the court should have sua sponte applied a minor
role reduction, (2) that the late receipt of the Presentence
Investigation violated Federal Rule Criminal Procedure 32(e) and,
therefore, that Mercado-Cruz merits resentencing, and (3) that a
firearms enhancement should not have been found applicable to him.

-49-
 Defense counsel did not object. At the time of the question,

the witness had previously testified, on direct examination, about

the presence of the drug point and identified Rivera-Rodríguez as

someone who came into the housing project but did not, to her

knowledge, engage in the drug trade. Considering this prior

testimony, it was not plain error for the court to permit, absent

any objection, the question about Mercado-Cruz's presence at the

drug point.

b. Eighth Amendment Violation

Mercado-Cruz argues that a term of life imprisonment violates

his Eighth Amendment right to be free from cruel and unusual

punishment. The Supreme Court has held that "the Eighth Amendment

prohibits imposition of a sentence that is grossly disproportionate

to the severity of the crime." Rummel v. Estelle, 445 U.S. 263,

271 (1980). We have guidance on the proportionality issue, having

previously upheld, on the basis of the same statute providing the

mandatory sentence here, "a life sentence for a 30 year old

defendant, based on a first time drug distribution conviction,"

relying in part on the fact "that the Supreme Court has upheld as

constitutional sentences that look equivalently severe." Jones,

674 F.3d at 95-96 (citing Harmelin v. Michigan, 501 U.S. 957 (1991)

(upholding a sentence of life in prison without parole for

possession of more than 650 grams of cocaine)).

-50-
 Confronted with this precedent, we cannot say that imposing a

life sentence on Mercado-Cruz for similar drug possession and

distribution charges violated his Eighth Amendment right to be free

from cruel and unusual punishment.

c. Error in Drug-Quantity Determination

Mercado-Cruz argues that, at sentencing, the drug quantity

attributed to him was not supported by proper findings related to

his personal involvement in the conspiracy. See United States v.

Colón-Solís, 354 F.3d 101, 103 (1st Cir. 2004) (holding that "when

a district court determines drug quantity for the purpose of

sentencing a defendant convicted of participating in a

drug-trafficking conspiracy, the court is required to make an

individualized finding as to drug amounts attributable to, or

foreseeable by, that defendant"). That argument is inapplicable

here because the jury rendered a special verdict specifically

finding that Mercado-Cruz possessed with intent to distribute at

least five kilograms of cocaine and at least fifty grams of cocaine

base. Accordingly, there was no plain error in the drug-quantity

determination.

-51-
 d. Error in Criminal History Calculation25

Mercado-Cruz argues that the calculation of his criminal

history category included three points from a conviction that was

greater than ten years from the commencement of the current offense

and resulted in a prison sentence of less than one year and one

month, putting it outside the parameters contemplated by U.S.S.G.

§ 4A1.2.

The conviction at issue is a 1997 drug conviction from

Pennsylvania that resulted in an initial sentence of three to

twelve months. However, parole revocation hearings associated with

that conviction occurred in Pennsylvania in 1998 and in Puerto Rico

in 2005. At the latter, Mercado-Cruz was sentenced to time served.

In calculating a criminal history category under § 4A1.1, the

court "[a]dd[s] 3 points for each prior sentence of imprisonment

exceeding one year and one month," § 4A1.1(a), and "2 points for

each prior sentence of imprisonment of at least sixty days not

counted in (a)," § 4A1.1(b). Here, the court added three points

for the conviction at issue, which combined with other prior

convictions not at issue here, resulted in a total score of eight

points and a criminal history category of IV (total of seven to

nine points).

25
Although criminal history category is irrelevant to the
mandatory life sentence imposed on Count One, it could potentially
have affected the Guideline range that ultimately produced
Mercado-Cruz's combined 262-month sentence on the other counts.

-52-
 According to § 4A1.2, a prior conviction resulting in

imprisonment of less than one year and one month that was greater

than ten years from the commencement of the current offense cannot

be counted under § 4A1.1(b).26 Mercado-Cruz thus argues that the

conviction at issue (1) resulted in a sentence of less than one

year and one month -- putting it in the two-point category of

§ 4A1.1(b) -- and (2) was imposed more than ten years before the

current offense commenced. As a result of those two alleged facts,

he contends, the conviction should not have been counted.

As the government points out, however, there are two problems

with Mercado-Cruz's argument. First, it is not clear that the

sentence, including the resentencing as a result of his parole

being revoked, was less than one year and one month. Second, even

if it was less than one year and one month, there was ample

evidence in the record that the offense of conviction began around

2005, which was the same year that the sentence for his second

parole revocation was imposed. Accordingly, even if the court

erred in attributing three points to the prior conviction under

§ 4A1.1(a), the correct result would have been to attribute two

points to the conviction under § 4A1.1(b). The resultant change in

his total points (from eight to seven) would not have affected his

criminal history category - IV (seven to nine points).

26
Convictions that resulted in imprisonment for longer than
one year and one month cannot be counted if they are more than
fifteen years older than the current offense.

-53-
 Accordingly, we conclude that there was no plain error in the

determination of Mercado-Cruz's criminal history category.

e. Prosecutorial Misconduct

Mercado-Cruz contends that the government engaged in

prosecutorial misconduct by soliciting testimony about his criminal

history and relying on testimony it knew to be false. We have

already addressed the issue regarding the testimony about his

criminal history and found it not to be reversible error. See

supra, Section II, Part B.3.b. With regard to the reliance on

allegedly false testimony, there is nothing in the record to

indicate that the testimony cited by Mercado-Cruz was definitively

false. Even if such definitive contradictory evidence existed,

there is certainly nothing to indicate that the government was

aware at the time of trial that the testimony was false.

Accordingly, we find no plain error in the prosecutor's conduct

here.

III.

The conviction and sentence of defendant Rivera-Rodríguez are

vacated; his case is remanded to the district court for proceedings

consistent with this opinion. The conviction and sentence of

defendant Mercado-Cruz are affirmed.

So Ordered.

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