United States Court of Appeals
For the First Circuit
Nos. 13-1830
13-2056
UNITED STATES OF AMERICA,
Appellee,
v.
MANUEL TRINIDAD-ACOSTA,
ED COGSWELL,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, U.S. District Judge]
Before
Torruella, Dyk,* and Thompson,
Circuit Judges.
David W. Ruoff, with whom Howard & Ruoff, PLLC, was on brief,
for appellant Trinidad-Acosta.
Hunter J. Tzovarras for appellant Cogswell.
Seth R. Aframe, Assistant United States Attorney, with whom
John P. Kacavas, United States Attorney, was on brief, for
appellee.
December 5, 2014
*
Of the Federal Circuit, sitting by designation.
TORRUELLA, Circuit Judge. Defendants-Appellants Manuel
Trinidad-Acosta ("Trinidad") and Ed Cogswell ("Cogswell") were
convicted for their involvement in a conspiracy to distribute
cocaine base (or "crack cocaine"). They appeal their convictions
and sentences, citing a number of alleged trial and sentencing
errors. We have reviewed their claims carefully and do not find
merit in any of them. Accordingly, we affirm.
I. Facts1
Sometime around September 2010, two New York residents,
in coordination with a local drug dealer, set up a business for
distributing crack cocaine in Bangor, Maine. The conspiracy's
leader, Dawlin Cabrera ("Cabrera"), remained in New York, from
where conspiracy members shipped packages of crack cocaine to Maine
by bus. At its peak, the conspiracy sold close to 300 grams of
crack cocaine each month. Initially, the drugs were distributed
from a number of residences in Bangor, although by December 2010
the sale and storage of the crack cocaine arriving from New York
was centralized in a single location: 100B Ohio Street.
The conspiracy leaders recruited a number of individuals
to participate in its local Bangor operations. Among those
recruited was Trinidad -- known to conspiracy members as "Fish" or
"Peje." Trinidad lived at the 100B Ohio Street apartment for a
1
We briefly summarize the relevant facts, reserving for our
analysis a more detailed discussion of the facts relevant to each
issue presented on appeal.
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portion of the conspiracy's duration, participating in the storage
and sale of crack cocaine at the residence.
A bank account was opened for Cabrera at the local Bank
of America branch using an alias. Trinidad would deposit into that
account cash proceeds from the sale of crack cocaine; Cabrera would
then withdraw this money from New York City branches of the bank.
Co-defendant Cogswell, a daily crack cocaine user,
participated in the conspiracy as a salesman. He would regularly
purchase bundles of crack cocaine from the New York importers and
resell the drug to local customers in and around Bangor. Cogswell
also lived for some time at the 100B Ohio Street apartment, and he
too made some cash deposits into Cabrera's bank account.
Jennifer Holmes ("Holmes") regularly purchased crack
cocaine at the Ohio Street address from either Trinidad, Cogswell,
or another member of the conspiracy. Holmes purchased firearms for
Trinidad and for some other members of the conspiracy, for which
she was compensated with crack cocaine.
By the summer of 2011, law enforcement had detected the
drug distribution operation and had developed confidential
informants. In November 2011, law enforcement raided the Ohio
Street apartment. After some arrests were made, most of the co-
conspirators provided information and agreed to cooperate; Trinidad
and Cogswell did not.
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A grand jury indicted Trinidad and Cogswell on one count
of conspiracy to possess with the intent to distribute twenty-eight
grams or more of crack cocaine, in violation of 21 U.S.C.
§ 841(b)(1)(B) and § 846. Trinidad was also indicted on one count
of possessing a firearm in furtherance of a drug trafficking crime,
in violation of 18 U.S.C. § 924(c).
Both defendants were tried together. The trial evidence
consisted of testimony from multiple cooperating co-conspirators
who operated out of the 100B Ohio Street apartment, each of whom
identified Trinidad and Cogswell as members of the conspiracy,
except for Cabrera, who identified Cogswell as a drug user and
customer of the conspiracy. There was also evidence that Trinidad
had signed the lease for the Ohio Street apartment, paid the
monthly rent in cash, and was responsible for monitoring drugs
stored in the apartment.
In addition, the government presented evidence that both
defendants had deposited drug proceeds into Cabrera's bank account
and that they had both made multiple crack cocaine deliveries.
Finally, there was testimony from Holmes, who, following a request
from Cogswell, had purchased a gun for Trinidad. This gun was
recovered by the police from an apartment in which Trinidad was
staying.
After a five-day trial, both defendants were found guilty
as charged. At sentencing, Trinidad was found responsible for 4.9
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kilograms of crack cocaine, triggering a base offense level of
thirty-six. A two-level enhancement was applied under U.S.
Sentencing Guidelines Manual ("U.S.S.G.") § 2D1.1(b)(12) for
maintaining a premises for the purpose of distributing a controlled
substance (known as the "crack house enhancement"), increasing the
offense level to thirty-eight. Since Trinidad had a criminal
history category of I, the applicable advisory guidelines
sentencing range ("GSR") was 235-293 months of imprisonment for the
conspiracy count and 60 months for the firearm count, for a total
of 295-353 months. The government requested that Trinidad be
sentenced to 295 months, while Trinidad asked for a 180-month
sentence. Trinidad was ultimately sentenced to 240 months (180
months on Count One and the statutorily required consecutive 60
months on Count Two) -- almost five years below the low end of the
GSR.
For his part, Cogswell was found responsible for 841
grams of crack cocaine, yielding a base offense level of thirty-
four. The district court added a two-level obstruction-of-justice
enhancement for writing a threatening letter to a testifying
witness after trial, and a two-level increase for possession of a
firearm, elevating the offense level to thirty-eight. He had a
criminal history category of II, which resulted in a GSR of 262-327
months. Cogswell was sentenced to 180 months of imprisonment --
almost seven years below the low end of the GSR.
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II. Discussion of Trinidad's Claims
A. Denial of Motion for a Mistrial
Trinidad argues that the district court erred in denying
his motion for a mistrial. We disagree.
1. Background
On January 30, 2013, Holmes testified against the
defendants, as part of her cooperation agreement with the
government.2 During direct examination, Holmes identified
Trinidad, who is a dark-skinned Dominican, as well as Cogswell, who
is Caucasian, as people involved in the conspiracy.
When the prosecutor asked Holmes if Trinidad was in the
courtroom, Holmes answered in the affirmative. When asked to
describe an article of clothing that he was wearing, Holmes
indicated that she could not do so, because she could not see him.
The prosecutor then asked Holmes to stand up so that she could see
what he was wearing from the waist up. When she stood up, Holmes
immediately identified the clothing that Trinidad was wearing.
Holmes had more difficulty identifying Cogswell.
Initially, Holmes said that she could not determine whether
Cogswell was in the courtroom, because she was nearsighted and
needed glasses, which she did not have. Holmes then walked off the
2
Holmes was charged with three counts of providing false
information regarding her purchases of firearms for Trinidad and
other members of the conspiracy. Holmes had pleaded guilty to
these charges and was awaiting sentencing.
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witness stand and got closer to the people in the courtroom, but
still could not identify Cogswell. Subsequently, the prosecutor,
who was also nearsighted, offered Holmes his glasses. Upon putting
on the prosecutor's glasses, Holmes testified that she could see
very clearly, and identified Cogswell.
On cross-examination, Trinidad's attorney tried to attack
Holmes's credibility -- regarding her identification of Trinidad --
by suggesting that Holmes identified Trinidad more easily than
Cogswell because Trinidad was the only dark-skinned person in the
courtroom. Holmes, however, responded that she was able to
identify Trinidad more easily because "[she] walk[s] past him every
day. [She is] in jail with him."3
3
The exact exchange was as follows:
Q: When you came in and sat down, you didn't have your glasses
with you, correct?
A. No, I don't own any glasses.
. . .
Q: And I take it from your testimony you're nearsighted?
A: Yeah.
. . .
Q: And when you first came in, within a fairly short period of
time, [the prosecutor] asked you to identify the person you
knew as Fish, correct?
A: Yes.
. . .
Q: And you knew, based on your cocaine use, that almost all of
the people that the government was interested in were black,
weren't they?
A: Hm, no.
. . .
Q: So who was in charge of the group?
A: I think D was.
Q: And in addition to D, there were some other dark-skinned
individuals, weren't there?
A: Yes.
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Trinidad then moved for a mistrial on account of Holmes's
statement that she walked past Trinidad every day in jail. While
he recognized that Holmes's statement was made "spontaneously" and
"without any assistance from the government," Trinidad argued that
it was the first time that anyone had referred to him being in
custody and that it warranted a mistrial because of the prejudicial
effect of having the jury know that he was in custody.
The district court denied Trinidad's request for a
mistrial. It noted that Trinidad's attorney was attacking Holmes's
credibility and that her testimony was a direct and natural
response to defense counsel's suggestion that she was able to
identify Trinidad more easily than Cogswell because of Trinidad's
skin color. The trial court reasoned that Trinidad could not, by
his own questioning, elicit a response that he did not like and
then turn around and move for a mistrial based on the response.
The government suggested that the trial court consider a
limiting instruction on Holmes's answer. In response, the court
noted that giving a limiting instruction could bring more attention
Q: We can even call them, in common parlance, black folk,
can't we?
A: They're Dominican.
Q: Okay. But they are black.
A: Yes.
Q: They're not white Dominicans.
A: No.
Q: But you were -- despite your inability to see Mr. Cogswell
from roughly the same distance, you could instantly identify
my client.
A. I walk past him every day. I'm in jail with him.
-8-
to the testimony, which could have escaped the jury, and told
Trinidad that it was completely up to him to decide whether he
wanted a limiting instruction given to the jury. Trinidad decided
not to request a limiting instruction.
2. Applicable Law and Analysis
"Declaring a mistrial is a last resort, only to be
implemented if the taint is ineradicable, that is, only if the
trial judge believes that the jury's exposure to the evidence is
likely to prove beyond realistic hope of repair." United States v.
Díaz, 494 F.3d 221, 227 (1st Cir. 2007) (quoting United States v.
Sepúlveda, 15 F.3d 1161, 1184 (1st. Cir. 1993)). When reviewing
the denial of a request for a mistrial, "we consider the totality
of the circumstances to determine whether the defendant has
demonstrated the kind of clear prejudice that would render the
court's denial of his motion for a mistrial a manifest abuse of
discretion." United States v. Dunbar, 553 F.3d 48, 58 (1st Cir.
2009) (internal quotation marks omitted) (quoting United States v.
Freeman, 208 F.3d 332, 339 (1st Cir. 2000)). "In conducting this
inquiry, we are mindful that the trial court has a superior point
of vantage, and that it is only rarely -- and in extremely
compelling circumstances -- that an appellate panel, informed by a
cold record, will venture to reverse a trial judge's on-the-spot
decision." Freeman, 208 F.3d at 339 (internal quotation marks
omitted); see also United States v. Pierro, 32 F.3d 611, 617 (1st
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Cir. 1994) ("Battles over the need for a mistrial most often will
be won or lost in the district court."). We examine "the context
of the improper remark, whether it was deliberate or accidental,
the likely effect of the curative instruction, and the strength of
the evidence against the appellants." United States v. Cresta, 825
F.2d 538, 549-50 (1st Cir. 1987). Deference to the district
court's ruling is particularly appropriate where, as here, the
request for mistrial is based on a claim that "some spontaneous
development at trial may have influenced the jury in an improper
manner." Díaz, 494 F.3d at 226.
Trinidad claims that Holmes's statement -- that she had
seen him in jail every day -- interfered with his constitutional
right to a presumption of innocence and should be considered
"highly prejudicial." He offers three alleged reasons:(1) evidence
that Trinidad was in jail with Holmes created the chance that the
jury would infer guilt by association; (2) the jury was free to
infer that Trinidad's incarceration was the result of the judicial
determination of Trinidad's dangerousness or guilt; and (3) if the
jury did not think that Trinidad was detained on the pending
charges, they were free to speculate that he was in fact
incarcerated on other charges. Trinidad contends that the trial
court had no option but to order a mistrial.
Trinidad relies on Estelle v. Williams, 425 U.S. 501,
503-05 (1976), to support his proposition that a mistrial was
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warranted. In Estelle, the Supreme Court held that forcing a
defendant to wear prison garb throughout his trial undermines the
defendant's presumption of innocence because such clothing is a
constant reminder of the defendant's condition as a pretrial
detainee. Id. at 504. Trinidad alleges that Holmes's brief
reference to his incarceration had the same effect as the prisoner
clothing at issue in Estelle. We disagree.
The possible effect on the jury of Holmes's fleeting
comment regarding Trinidad's pre-trial incarceration status is
markedly different from that of a defendant wearing prison clothing
throughout his entire trial. The Supreme Court held in Estelle
that the clothing would be a "constant reminder" of the defendant's
condition as a pretrial detainee. 425 U.S. at 504 (emphasis
added). Here, on the contrary, we are dealing with a single,
isolated statement that was made and put to rest, and that did not
provide any details about Trinidad's incarceration. A number of
cases -- both from this and other circuits -- support this crucial
distinction and counsel that we reject Trinidad's argument. See,
e.g., United States v. De Jesús Mateo, 373 F.3d 70, 73 (1st Cir.
2004) (holding that there was no abuse of discretion in denying
mistrial based on a comment that the defendant was in prison where
the comment "provided the jury with little detail"); see also
United States v. Deandrade, 600 F.3d 115, 118 (2d Cir. 2010)
("[T]he rule that emerges is that brief and fleeting references [to
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the defendant's incarceration] are generally allowed, but extended
comment is impermissible."). Moreover, Trinidad's pretrial
incarceration was not mentioned by any other witness. Nor was it
referenced by the government during trial.
The context in which Holmes made the comment at issue
also counsels against granting a mistrial. Holmes made the comment
in response to the suggestion, by Trinidad's attorney, that her
identification of Trinidad was motivated by Trinidad's skin color.
Faced with an attack on her credibility, Holmes felt compelled to
explain that she could identify Trinidad more easily than Cogswell
because she walked past him every day while she was in jail with
him. It is well-established that when, as here, defense counsel
elicits a response from a witness,4 the defense cannot then
"complain of the alleged error." Cresta, 825 F.2d at 552. Since
the thrust of the cross-examination was an effort to undermine the
basis for Holmes's identification, we hold that Trinidad did not
suffer clear prejudice where Holmes merely provided the basis for
her ease in making the identification, which was different than the
one suggested by Trinidad.
4
Although Trinidad acknowledges that Holmes's comment was
elicited on cross-examination, he alleges that it was not directly
responsive of the question posed to her. He claims that his
question merely warranted a simple "yes" or "no" answer. We think
otherwise, since her need to defend her credibility from his attack
required something more than a simple "yes" or "no" -- it required
an explanation. Holmes's response was a natural one given the
circumstances.
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Furthermore, if Trinidad really thought that Holmes's
brief reference to his pretrial incarceration was so highly
prejudicial, he could have accepted the district court's invitation
of a curative instruction. After all, such an instruction is
"ordinarily an appropriate method of preempting a mistrial."
United States v. Sotomayor-Vázquez, 249 F.3d 1, 18 (1st Cir. 2001).
That he decided that no curative instruction would be less
prejudicial than giving one, and thus drawing attention to Holmes's
comment, implies that any prejudice stemming from Holmes's comment
was not as extreme as Trinidad alleges it was.
Finally, we have held that "strong independent evidence
of guilt tends to lessen the effect of an improper comment by a
witness, making a mistrial unnecessary." Díaz, 494 F.3d at 227.
Here, the independent evidence against Trinidad was overwhelming.
This evidence included testimony from several cooperating witnesses
implicating Trinidad in the conspiracy, the contract showing that
Trinidad leased the crack house on Ohio Street, documents showing
bank deposits made by Trinidad into the bank account of the leader
of the conspiracy, and proof of multiple controlled crack sales by
Trinidad to a confidential informant. When viewed in light of the
overwhelming nature of the evidence against Trinidad, it is
unlikely that one isolated and vague comment regarding his status
as a pretrial prisoner would irreparably sway the jury's opinion of
Trinidad from innocent to guilty.
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Considering the totality of the circumstances, we
conclude that Trinidad has not shown that Holmes's comment
constituted clear prejudice that would render the district court's
denial of his request for a mistrial a manifest abuse of
discretion. Thus, we affirm the district court's denial of
Trinidad's request for a mistrial.
B. The Reasonableness of Trinidad's Sentence
Trinidad also argues that his sentence, which was almost
five years below the advisory GSR, is unreasonable in light of his
age, the sentencing factors in 18 U.S.C. § 3553(a), his role in the
conspiracy, and his criminal record.
1. Standard / Scope of Review
We review the reasonableness of a criminal sentence under
an abuse-of-discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007); United States v. Rivera-Moreno, 613 F.3d 1, 8 (1st
Cir. 2010). This is a deferential standard, which recognizes the
sentencing court's "superior coign of vantage." United States v.
Martin, 520 F.3d 87, 92 (1st Cir. 2008) (citation omitted). "In
reviewing a sentence, we seek to ensure that it is both
procedurally sound and substantively reasonable." United States v.
Dávila–González, 595 F.3d 42, 47 (1st Cir. 2010) (citation
omitted). A sentence is procedurally sound so long as the district
court did not commit a procedural error in arriving at the
sentence. Examples of procedural errors include: "failing to
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calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the
section 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen
sentence -- including an explanation for any deviation from the
Guidelines range." Rivera-Moreno, 613 F.3d at 8 (quoting Gall, 552
U.S. at 51). "When assessing procedural reasonableness, our abuse
of discretion standard is multifaceted. [W]e review factual
findings for clear error, arguments that the sentencing court erred
in interpreting or applying the guidelines de novo, and judgment
calls for abuse of discretion simpliciter." United States v.
Serunjogi, 767 F.3d 132, 142 (1st Cir. 2014) (alteration in
original) (internal citations omitted).
Once we determine that the district court committed no
significant procedural error, we then consider the substantive
reasonableness of the sentence imposed under an abuse-of-discretion
standard. Id. "When conducting this review, we take into account
the totality of the circumstances, including the extent of any
variance from the GSR." Rivera-Moreno, 613 F.3d at 8 (citing Gall,
552 U.S. at 51). "The linchpin of a reasonable sentence is a
plausible sentencing rationale and a defensible result." United
States v. Ramos, 763 F.3d 45, 58 (1st Cir. 2014) (internal
quotation marks omitted) (quoting Martin, 520 F.3d at 96).
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2. Analysis
Trinidad does not raise any claim of procedural error.
Rather, he complains about the ultimate sentencing determination.
Although Trinidad acknowledges that the trial court engaged in "a
thoughtful analysis" and "discussed in detail the sentencing
factors i[t] considered in fashioning its sentence of 240 months,"
he argues that the district court's assessment of his role in the
conspiracy was erroneous since he was a "youthful, low-level drug
peddler with a minor record," who speaks "very little English" and,
thus, should have received a greater downward variance than the one
accorded by the trial court.
"[A] defendant who attempts to brand a within-the-range
sentence as unreasonable must carry a heavy burden." United States
v. Pelletier, 469 F.3d 194, 204 (1st Cir. 2006); see also United
States v. Clogston, 662 F.3d 588, 592-93 (1st Cir. 2011)
("Challenging a sentence as substantively unreasonable is a
burdensome task in any case, and one that is even more burdensome
where, as here, the challenged sentence is within a properly
calculated GSR."). Trinidad's burden, however, is even heavier
because his sentence was below the applicable advisory GSR. See
United States v. Merritt, 755 F.3d 6, 12 (1st Cir. 2014) ("It is a
rare below-the-range sentence that will prove vulnerable to a
defendant's claim of substantive unreasonableness." (quoting United
States v. King, 741 F.3d 305, 310 (1st Cir. 2014))). He "must
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adduce fairly powerful mitigating reasons and persuade us that the
district court was unreasonable in balancing pros and cons despite
the latitude implicit in saying that a sentence must be
reasonable." United States v. Madera-Ortiz, 637 F.3d 26, 30 (1st
Cir. 2011) (internal quotation marks omitted).
Trinidad has not carried his burden. The district court
carefully considered all relevant factors and explained in detail
the basis for its conclusion that Trinidad was not a "soldier" or
a "low-level peddler," as he claimed to be. The district court
emphasized that Trinidad had three major roles in the conspiracy,
consisting of: (1) "watch[ing] the drugs coming in and out and
watch[ing] other people with the drugs" (the "Babysitter Role");
(2) actual drug dealing; and (3) depositing the drug proceeds in
Cabrera's bank account (the "Depositor Role"). It noted that the
Depositor Role was a "pretty significant role" that put him in a
different level than simply an "outside soldier." The district
court also noted that Trinidad carried a gun in furtherance of the
conspiracy, which also put him in a category different from that of
other lower-level conspirators.
Trinidad tries to minimize his Depositor Role and his
carrying of a gun by arguing that he sometimes required help at the
bank due to his lack of proficiency in English, that the conspiracy
leaders viewed him as dispensable since he was required to go into
the open with large sums of money, and that the reason for getting
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the gun was "opaque." However, Trinidad's different view about the
significance of his roles does not mean that the district court's
view was unreasonable.
As Trinidad recognizes, in making its determination the
district court engaged in "a thoughtful analysis." It explained
that it had taken into consideration each of the factors set forth
in 18 U.S.C. § 3553(a), including the obligation to impose a
sentence that is sufficient, but no greater than necessary to
achieve the purposes of the law. The district court also explained
in detail the sentencing factors of Trinidad's past, his age, his
roles in the conspiracy, and the need for punishment. After
providing this explanation, the district court concluded that the
advisory GSR was too harsh and imposed a sentence almost five years
below the bottom of the advisory GSR. This was a defensible
result, and the court stated a plausible rationale for reaching it.
Ramos, 763 F.3d at 58. We therefore affirm his sentence.5
5
In the summary of the argument section of his brief, Trinidad
briefly alleges that his sentence constitutes a punishment for
going to trial, since another co-conspirator whom he asserts was
similar in "level" to him received an 84-month sentence. Although
Trinidad does not identify the "similar in level co-conspirator,"
we must note that many of Trinidad's co-conspirators received
downward departures for substantial assistance to the government
and that Jacob García, who received an 84-month sentence, was one
of them. Cooperation with the government is a legitimate basis for
a disparity in sentence. United States v. Vázquez-Rivera, 470 F.3d
443, 449 (1st Cir. 2006). In any event, Trinidad did not develop
this argument in his brief and, therefore, it is waived. See
United States v. Martínez, 762 F.3d 127, 132 n.2 (1st Cir. 2014)
("[I]ssues adverted to in a perfunctory manner, unaccompanied by
some effort at developed argumentation, are deemed waived."
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III. Discussion of Cogswell's Trial Issues
A. Sufficiency of the Evidence
Cogswell challenges the sufficiency of the evidence
supporting his conviction. He argues that the district court erred
in denying his motion for acquittal because "the evidence only
supported a finding that [he] was a crack cocaine user and customer
of the conspiracy."
1. Standard / Scope of Review
We review de novo the district court's denial of a motion
made under Rule 29 for judgment of acquittal. United States v.
Ulloa, 760 F.3d 113, 118 (1st Cir. 2014). In our review,
we examine the evidence, both direct and
circumstantial, in the light most favorable to
the jury's verdict. We do not assess the
credibility of a witness, as that is a role
reserved for the jury. Nor need we be
convinced that the government succeeded in
eliminating every possible theory consistent
with the defendant's innocence. Rather, we
must decide whether that evidence, including
all plausible inferences drawn therefrom,
would allow a rational factfinder to conclude
beyond a reasonable doubt that the defendant
committed the charged crime.
United States v. Troy, 583 F.3d 20, 24 (1st Cir. 2009) (citations
omitted) (internal quotation marks omitted). "[D]efendants
challenging convictions for insufficiency of evidence face an
uphill battle on appeal." United States v. Lipscomb, 539 F.3d 32,
(alteration in original) (quoting United States v. Zannino, 895
F.2d 1, 17 (1st. Cir. 1990))).
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40 (1st Cir. 2008) (citation omitted) (internal quotation marks
omitted); see also United States v. Polanco, 634 F.3d 39, 44–45
(1st Cir. 2011) (noting that "a sufficiency challenge is a tough
sell").
"To sustain a drug conspiracy conviction, the government
must prove beyond a reasonable doubt that an agreement existed to
commit the underlying offense and that the defendant elected to
join the agreement, intending that the underlying offense be
committed." United States v. Liriano, 761 F.3d 131, 135 (1st Cir.
2014). "An agreement to join a conspiracy may be express or tacit,
and may be proved by direct or circumstantial evidence." Id.
"[E]ach coconspirator need not know of or have contact with all
other members, nor must they know all of the details of the
conspiracy or participate in every act in furtherance of it." Id.
We have held that "the continuing purchase and sale relationship
between [the dealers and the defendant], and the dealers' knowledge
of [the defendant's] re-distribution, would permit a jury to infer
both an agreement between them that [the defendant] possess the
drugs and the requisite intent as to distribution." United States
v. Symonevich, 688 F.3d 12, 24 (1st Cir. 2012) (alterations in
original) (citation omitted).
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2. Analysis
Cogswell alleges that there was insufficient evidence
that he agreed to join the conspiracy's goal and that the evidence
only supported a finding that he was a crack cocaine user and
customer of the conspiracy. In support of his argument, Cogswell
emphasizes the testimony of Cabrera, and discredits the testimony
of five other witnesses who testified that Cogswell was indeed a
member of the conspiracy. Cogswell undervalues the evidence
against him.
Cabrera, described as the leader of the conspiracy,
testified that he knew Cogswell because he recalled an occasion
when he was buying drugs for personal use. Cabrera did not live in
Bangor, although he visited it at times. The other five witnesses
testified that a continuing purchase and sale relationship existed
between Cogswell and the dealers. Specifically, they testified
that they would see Cogswell almost every day to obtain crack
cocaine to sell; that Cogswell was one of the people involved in
the drug operation and that he was buying either $400 or $800 of
crack cocaine at a time; that Cogswell "belonged to the company, he
was working together with [them], moving crack and making
deliveries;" that Cogswell was provided with packets of crack
cocaine that he would resell for $50 each and that he had traded a
gun for ten bags of drugs; that Cogswell was "selling crack" that
the New York importers were providing; and that Cogswell was one of
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the people from whom Holmes would buy crack cocaine at the 100B
Ohio Street apartment. Unlike Cabrera, these other five witnesses
lived in Bangor.
Cogswell urges us to discredit the testimonial evidence
from these five witnesses because they were testifying after
agreeing to cooperate with the government. However, he fails to
recognize that Cabrera was in the same situation. Furthermore,
Cogswell cross-examined these witnesses about their cooperation
agreements, and the district court cautioned that the testimony of
cooperating witnesses should be considered with "particular
caution." It was for the jury to decide whether to credit the
testimony of Cabrera (who lived in New York and, thus, was not
present in Bangor all the time) or that of the five other witnesses
(who spent more time in Bangor). See United States v. Hernández,
218 F.3d 58, 66 n.5 (1st Cir. 2000) ("It is not our role to assess
the credibility of trial witnesses or to resolve conflicts in the
evidence, instead we must resolve all such issues in favor of the
verdict."). Besides, "[t]he testimony of a single witness can be
enough to support the government's case, and even the
uncorroborated testimony of an informant may suffice to establish
the facts underlying a defendant's conviction." United States v.
Meises, 645 F.3d 5, 12 (1st Cir. 2011) (internal citations and
quotation marks omitted).
-22-
In addition, the jury's verdict is supported by other
evidence, including conspiracy drug ledgers and expense sheets
showing that Cogswell had received twenty-bag quantities of crack
cocaine from the New York exporters, deposit slips showing that
Cogswell deposited over $26,000 in cash into Cabrera's bank
account, and the fact that Cogswell resided in the "crack house."
In this case, the prosecution alleged that Cogswell
participated in the conspiracy by repeatedly purchasing crack
cocaine from the New York importers for resale. Based on all the
evidence presented, we conclude that a rational factfinder could
conclude beyond a reasonable doubt that Cogswell knowingly and
voluntarily joined the charged conspiracy. Thus, we affirm the
district court's denial of Cogswell's Rule 29 motion.
B. Government's Closing Argument
Cogswell alleges that during closing arguments, the
government misrepresented statements made by him to law enforcement
during an interview, and that the resulting prejudicial effect
warrants that his conviction and sentence be vacated. We disagree.
1. Background
Agent Shawn Green ("Green") interviewed Cogswell on
November 2, 2011, after law enforcement raided the 100B Ohio Street
apartment. Green testified at trial that, during that interview,
Cogswell "admitted to using marijuana" and said that "in the past,
he had picked up pot for other people." Green also testified that
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he had asked Cogswell if he used cocaine and that "[i]nitially,
[Cogswell] denied it, though he admitted he had in the past and
. . . made a statement that he had used it the week prior." Green
further testified that "during that line of questioning where
[Cogswell] said that at times he would get things for other people,
[Cogswell] stated he's had that cocaine the week before to take it
to a party on Essex Street in Bangor." Finally, Green testified
that Cogswell told him that he was living at 100 Ohio Street with
his girlfriend.
During closing arguments, the government misquoted Green
as having testified that Cogswell: (1) "admitted he got some
cocaine the week before and brought it to a party to help someone
out;" and (2) "said he, [his girlfriend], and Jacob lived at the
house. He didn't mention [the other conspiracy members residing at
the house]."
These statements were made in the middle of the
government's closing argument. Cogswell waited until the government
finished its closing argument to object at sidebar to the statement
regarding who lived in the 100B Ohio Street apartment. He did not
specifically object to the statement of his taking drugs to a party
to help someone out. The district court told Cogswell that it had
already instructed the jury that "what the lawyers say is not
evidence and that they're to base their verdict solely on the
evidence." The district court also advised Cogswell that he was
-24-
free in his closing argument to argue that what Green had stated
was not before the jury and that the jury should not consider it.
Cogswell followed the suggestion.
Cogswell contends that the government's misstatements
suggest that he admitted to dealing cocaine and that he attempted
to cover up for other conspiracy members. Cogswell argues that,
although these statements were not deliberate or recurrent, they
did interfere greatly with the heart of his defense (that he was
merely a user, not a dealer). He complains that the court issued
no "explicit or cautionary instruction" after the objection to
these statements.
2. Standard / Scope of Review
When a contemporaneous objection to a challenged comment
is made, we review de novo whether the comment was improper.
United States v. Díaz-Castro, 752 F.3d 101, 110 (1st Cir. 2014)
(citing United States v. Glover, 558 F.3d 71, 76 (1st Cir. 2009));
United States v. Appolon, 695 F.3d 44, 65-66 (1st Cir. 2012). If
we conclude that the comment was improper, we then review for
harmless error. Díaz-Castro, 752 F.3d at 110. Under the harmless-
error standard, reversal is warranted only if the comment has
"likely affected the trial's outcome." United States v. Ayala-
García, 574 F.3d 5, 16 (1st Cir. 2009) (quoting United States v.
Vázquez-Rivera, 407 F.3d 476, 486 (1st Cir. 2005)).
-25-
If, on the contrary, no contemporaneous objection was
made, we review under the four-pronged plain-error standard.
United States v. Hilario-Hilario, 529 F.3d 65, 74-75 (1st Cir.
2008) (citing United States v. Allen, 469 F.3d 11, 16 (1st Cir.
2006)). "An unpreserved error is deemed plain (and, therefore, to
affect substantial rights) only if the reviewing court finds that
it skewed the fundamental fairness or basic integrity of the
proceeding below in some major respect." United States v. Taylor,
54 F.3d 967, 972 (1st Cir. 1995) (citing United States v. Griffin,
818 F.2d 97, 100 (1st Cir. 1987)); see also United States v. Frady,
456 U.S. 152, 163 n.14 (1982) (holding that the plain-error
doctrine applies in those circumstances in which, absent appellate
intervention, a miscarriage of justice would otherwise result). To
make this determination, we consider all attendant circumstances
with emphasis on: "(1) the extent to which the prosecutor's conduct
is recurrent and/or deliberate; (2) the extent to which the trial
judge's instructions insulated the jury against, or palliated, the
possibility of unfair prejudice; and (3) the overall strength of
the prosecution's case, with particular regard to the likelihood
that any prejudice might have affected the jury's judgment."
Taylor, 54 F.3d at 977; United States v. Giry, 818 F.2d 120, 133
(1st Cir. 1987).
"[T]he jurisprudence of plain error invests substantial
discretion in the court of appeals." Taylor, 54 F.3d at 973. This
-26-
discretion should be exercised sparingly, and should be reserved
for the correction of those few errors that "so poisoned the well
that the trial's outcome was likely affected." United States v.
Mejía-Lozano, 829 F.2d 268, 274 (1st Cir. 1987).
3. Analysis
The government argues that plain-error review applies to
Cogswell's challenge of both statements. It alleges that Cogswell
never objected to the statement regarding his taking drugs to a
party for someone else and that, although he objected to the
statement regarding who lived at the apartment, his objection came
too late because he waited until the government had finished its
closing argument to raise it.
We agree with the government that Cogswell did not object
to the statement regarding his taking drugs to a party for someone
else. The record shows that Cogswell's objection made reference
only to the statement regarding who lived at the apartment. Thus,
his challenge to the former statement is subject to plain-error
review. However, contrary to the government's assertions, Cogswell
timely objected to the statement regarding who lived in the
apartment. Although he did not object to it immediately after the
statement was made, we find that his objection, made at the end of
the prosecution's closing argument, was sufficiently timely to
preserve the issue for appeal. See United States v. Mandelbaum,
803 F.2d 42, 44 n.1 (1st Cir. 1986) (holding that the objection had
-27-
been sufficiently timely when the defense waited until the
government's rebuttal to object to a statement made during the
government's closing statement). Thus, we review de novo whether
this statement was improper and, if we conclude that it was, we
review for harmless error. Díaz-Castro, 752 F.3d at 110.
As Cogswell recognizes, the statement regarding his
taking drugs to a party for someone else was isolated in nature and
there is no evidence that it was deliberate. In fact, it is not
even clear that it was a misstatement of the evidence. Green
testified that Cogswell had in the past picked up marijuana for
other people. The government then asked about cocaine. Green
responded that "during that line of questioning where he said that
at times he would get things for other people, [Cogswell] stated
he's had that cocaine the week before to take it to a party on
Essex Street in Bangor." Thus, the government argued that Cogswell
had made the statement about bringing cocaine to the party in the
context of a question about obtaining drugs for others.
Also, the district court's instructions to the jury
before beginning closing arguments were strong and explicit. At
the outset, the court made clear that statements and arguments of
counsel were not evidence, and instructed the jury to consider only
the evidence in the record. See Giry, 818 F.2d at 134 ("finding
the impact of prosecutorial misstatements mitigated by instructions
telling the jury, among other things, to '[b]ear in mind that
-28-
arguments of counsel . . . are not evidence'" (quoting United
States v. Maccini, 721 F.2d 840, 847 (1st Cir. 1983))).
Furthermore, we have already concluded that the evidence against
Cogswell was strong, which makes it less likely that any
misstatement could have affected the outcome of the trial.6 See
Giry, 818 F.2d at 133-34 ("[P]rejudice that survives the charge is
deemed less likely to have affected the outcome of the trial where
strong evidence supports the prosecution's case. Perhaps the
single most significant factor . . . is the strength of the case
against the defendant." (internal citations omitted)). Thus,
Cogswell has not demonstrated that the government's statement
constituted plain error requiring a new trial.
Regarding the statement about the people who lived in the
apartment, we agree with Cogswell that the government misstated
Green's testimony because Cogswell never mentioned that Jacob also
lived in the apartment. However, even finding that the
government's statement was improper, it is harmless. This
statement, too, was isolated, not deliberate, and mitigated by the
judge's instructions to the jury. It is highly unlikely that the
6
The evidence against Cogswell was described by the district
court as overwhelming. At sentencing, the district judge told
Cogswell: "[T]here's no question in my mind, absolutely no question
in my mind that the jury verdict was correct. The evidence against
you was absolutely overwhelming." We have no cause to disagree
with the district court's assessment on this point.
-29-
challenged statement affected the trial's outcome, because of the
strong evidence against Cogswell.
In sum, reversal for misrepresentation of the evidence
during the government's closing argument is inappropriate in this
case, since these misstatements were unlikely to have affected the
outcome of the case or the fundamental fairness and integrity of
the trial proceedings.
IV. Discussion of Cogswell's Sentencing Issues
Cogswell alleges that the district court committed
multiple procedural errors under the Sentencing Guidelines and that
the sentence imposed was unreasonably harsh in comparison to those
imposed on his co-conspirators. In assessing Cogswell's alleged
procedural errors, we "review factual findings for clear error,
arguments that the sentencing court erred in interpreting or
applying the guidelines de novo, and judgment calls for abuse of
discretion simpliciter." Serunjogi, 767 F.3d at 142 (citation
omitted). We then consider the substantive reasonableness of the
sentence under an abuse-of-discretion standard. Id.
A. Denial of Role Reduction
Cogswell argues that the district court should have
granted him a two- or three-level reduction in the applicable
guidelines sentencing range for his role in the conspiracy. We
review this issue for clear error. United States v. Rosa-Carino,
615 F.3d 75, 81 (1st Cir. 2010) ("The district court's decision
-30-
whether to grant a downward adjustment for a minor role is usually
a fact-based decision that we review for clear error." (citing
United States v. Sánchez, 354 F.3d 70, 74 (1st Cir. 2004))). "If
the record supports at least two permissible inferences, the
factfinder's choice between or among them cannot be clearly
erroneous. Accordingly, we rarely reverse a district court's
decision regarding whether to apply a minor role adjustment."
United States v. Bravo, 489 F.3d 1, 11 (1st Cir. 2007) (internal
citations omitted); see also United States v. Olivero, 552 F.3d 34,
41 (1st Cir. 2009) ("[B]attles over a defendant's status . . . will
almost always be won or lost in the district court." (citation
omitted)); Sánchez, 354 F.3d at 74 (stating that unless the
findings of fact are "clearly erroneous," higher courts must defer
to those findings as the sentencing courts have a superior "coign
of vantage").
The Sentencing Guidelines permit a court to award a
four-level decrease to a defendant who was a minimal participant in
the criminal activity, a two-level decrease to a defendant who was
a minor participant in the criminal activity, and a three-level
decrease to persons whose participation was more than minimal but
less than minor. U.S.S.G. § 3B1.2; United States v. Innamorati,
996 F.2d 456, 490 (1st Cir. 1993). "To qualify as a minor
participant, a defendant must prove that he is both less culpable
than his cohorts in the particular criminal endeavor and less
-31-
culpable than the majority of those within the universe of persons
participating in similar crimes." United States v. Santos, 357
F.3d 136, 142 (1st Cir. 2004). "To qualify as a minimal
participant, a defendant must prove that he is among the least
culpable of those involved in the criminal activity." Id.
Cogswell alleges that he was entitled to a two- or three-
level reduction in the applicable guideline range because the
evidence "at most supported a finding that [he] was a regular
customer who sold on the side to support his addiction." However,
the district court rejected this characterization. The district
court carefully considered Cogswell's request for a role reduction
and rejected it. In reaching its conclusion, the court emphasized
the following facts: Cogswell's participation in the conspiracy
extended throughout the entire time of the charged conspiracy;
Cogswell was not a mere user, but rather was "a classic middleman"
who "got drugs from the conspiracy [and] sold them to local
customers" while using some of those drugs himself; Cogswell traded
a firearm for ten bags of crack; Cogswell, with his girlfriend,
actually moved into, and was living, at the "headquarters" of the
conspiracy; Cogswell was trusted by his co-conspirators to deposit
drug proceeds into a bank account, or assisted in making those
deposits; and Cogswell approached Holmes so that she would buy a
firearm for the conspiracy, which she did. Each of these findings
about Cogswell's role was supported by the trial record and, thus,
-32-
was not clearly erroneous. On these facts, the district court
found that Cogswell was not less culpable, but rather "more
culpable than many of his cohorts in this particular criminal
activity and [that] he was certainly not less culpable than the
majority of those within the universe of persons participating in
similar crimes." Cogswell has failed to establish that the
district court erred, much less clearly erred, in its determination
of his role in the offense.7 Thus, we affirm the district court's
denial of a role reduction.
B. Determination of Drug Quantity
For sentencing purposes, the district court attributed to
Cogswell 841 grams of crack cocaine. This amount included the
quantity of drugs that he personally dealt prior to moving to the
100B Ohio Street apartment (141 grams) and the entire amount of
crack cocaine that the conspiracy intended to distribute during the
7
Cogswell's reliance on Innamorati, 996 F.2d at 489-90, is
misplaced. There, the defendant, who had not participated in
particular drug transactions, but rather had provided services to
a drug distributor, received a three-level reduction by the
district court on the grounds that "he was not shown to have
cocaine himself or to have shared in the profits." Id. The
defendant appealed, asking for a four-level reduction, which this
court rejected after concluding that the three-level reduction was
"generous." Id. Unlike the defendant in Innamorati, Cogswell
participated in drug transactions, had cocaine in his possession on
an almost daily basis, and profited from his conduct (since he paid
the New York importers $40 for a bag of crack and sold it for $50).
-33-
length of time that Cogswell lived within the apartment (700
grams).8
Cogswell argues that holding him responsible for the
entire amount of cocaine involved in the conspiracy after he moved
to 100B Ohio Street (700 grams) is unreasonable because: the drugs
and money were stored on a different level than his living space
within the apartment; there was no evidence of him moving or
handling such large quantities of drugs; and there was no evidence
of a close relationship between him and the leader of the
conspiracy, so it was not foreseeable to him that such an immense
quantity of crack cocaine was involved.
"[I]n a conspiracy case, the sentencing court cannot
automatically assign the conspiracy-wide amount to a defendant.
Rather, the sentencing court must make an individualized finding as
to drug amounts attributable to, or foreseeable by, that
defendant." United States v. González-Vélez, 587 F.3d 494, 502
(1st Cir. 2009) (internal citations and quotation marks omitted);
Santos, 357 F.3d at 140 ("[E]ach coconspirator is responsible not
only for the drugs he actually handled but also for the full amount
8
Cogswell did not raise any claim based on Alleyne v. United
States, 570 U.S. ____, 133 S. Ct. 2151, 168 L.Ed.2d 203 (2013),
either here or in the district court, and we take no position on it
either. In fact, at his sentencing hearing the district judge
specifically asked: "First, I understand that there's no Alleyne
issue here, is that right?," to which Cogswell responded: "Well,
that's right, Your Honor . . . ."
-34-
of drugs that he could reasonably have anticipated would be within
the ambit of the conspiracy.").
We review individualized determinations of drug
quantities for clear error. United States v. Cortés-Cabán, 691
F.3d 1, 27 (1st Cir. 2012). "[T]he district court's determination
will be upheld so long as the approximation represents a reasoned
estimate of actual quantity." United States v. Sepúlveda-Hernández,
752 F.3d 22, 35 (1st Cir. 2014) (internal quotation marks omitted)
(citing United States v. Cintrón–Echautegui, 604 F.3d 1, 6–7 (1st
Cir. 2010)). Such a determination need only be supported by a
preponderance of the evidence. González-Vélez, 587 F.3d at 502.
Here, there was no clear error in the drug quantity
determination. Although Cogswell might have lived on a different
floor than where the drugs were stored, he lived for at least two
months in the "headquarters" of the conspiracy and with the people
who were in charge of it. He was able to see the traffic of
customers coming in and out of the apartment to buy drugs, and he
himself was buying quantities of crack cocaine almost daily. See
United States v. De La Cruz, 996 F.2d 1307, 1314-15 (1st Cir. 1993)
(finding defendant to have foreseen the large quantity of drugs
involved in the conspiracy as he saw firsthand the number of people
and vehicles present at the warehouse where the drugs were stored).
Furthermore, he was entrusted to deposit over $26,000 in drug-sales
proceeds into the conspiracy leader's account, and it has been
-35-
established that his role in the overall conspiracy was more than
just minimal or minor. Based on this evidence, the district court
could reasonably infer that Cogswell was aware of the capacity at
which the conspiracy was operating and, thus, that the drug amount
handled by the conspiracy was reasonably foreseeable to him.
Accordingly, we affirm the district court's drug quantity
calculation, which was not clearly erroneous.
C. Obstruction-of-Justice Enhancement
Section 3C1.1 of the Sentencing Guidelines mandates a
two-level enhancement when the defendant "willfully obstructed
. . . or attempted to obstruct . . . the administration of justice
with respect to the . . . prosecution, or sentencing of the instant
offense of conviction, and (2) the obstructive conduct related to
(A) the defendant's offense of conviction and any relevant conduct;
or (B) a closely related offense." U.S.S.G. § 3C1.1. One
recognized way in which a defendant can obstruct justice is by
"threatening, intimidating, or otherwise unlawfully influencing a
co-defendant, witness, or juror, directly or indirectly, or
attempting to do so." See id. at § 3C1.1 cmt. 4. The district
court applied a two-level enhancement after finding that Cogswell
had obstructed justice by writing a letter to Holmes, in which
Cogswell threatened another government witness.
-36-
1. Background
During trial, the government called Keith "Beau" Lewis
("Lewis"), a local drug dealer in Bangor, to testify as a
government witness against Cogswell. The drug conspiracy ran for
some time from Lewis's house before it relocated to 100B Ohio
Street. Lewis testified as to the scope of Cogswell's activities
while the conspiracy operated from his house.
After Cogswell was convicted, and while the presentence
report was being prepared, Cogswell wrote a letter to Holmes, who
had also testified against him at trial and who, at that time, was
incarcerated and awaiting sentencing. The letter stated as
follows, in relevant part:
That "Dick" Prosecutor, . . . is still
protesting it. He is still trying to protect
[Lewis] and "Ranger" . . . his "lil" snitchie-
bitchies and is afraid that now that I know
who they are, that [words blacked-out]. Oh
well, little does he know when everything is
all done and I have nothing to do with anyone
in the Bangor area, all set with supervised
release, then I'll take care of [Lewis] the
[words blacked-out]. . . My people are gonna
love hanging him up and setting him on fire,
he's not even gonna get the mercy of a bullet
when he screams for it. I'll watch and laugh
and that will be that.
Based on this letter, and after carefully considering and
rejecting all of Cogswell's assertions, the district court imposed
an obstruction-of-justice enhancement. Cogswell appeals the
imposition of this enhancement.
-37-
2. Analysis
A district court's "factual determination underlying its
decision to award a two-level enhancement for obstruction of
justice is reviewed for clear error." United States v. Cash, 266
F.3d 42, 44 (1st Cir. 2001) (citing United States v. Cardales, 168
F.3d 548, 558 (1st Cir. 1999)). "[W]here the record supports at
least two permissible inferences, the factfinder's choice between
them cannot be clearly erroneous." United States v. Balsam, 203
F.3d 72, 89 (1st Cir. 2000). The question of whether the scope of
section 3C1.1 encompasses a defendant's conduct, however, is
subject to de novo review. United States v. Moreno, 947 F.2d 7, 10
(1st Cir. 1991).
Cogswell alleges that the letter did not constitute an
obstruction of justice because it was written after Lewis had
already testified at trial and the trial had concluded. He also
argues that the letter was not an attempt to influence Lewis
because it was not directed at Lewis, Lewis never received it, and
Cogswell had no reason to believe that Holmes would relay the
threat to Lewis.
Cogswell's first contention lacks merit. It is
irrelevant that, at the time Cogswell made the threat, the trial
had already concluded, because sentencing was still pending and
obstruction of justice extends to sentencing under section 3C1.1.
U.S.S.G. § 3C1.1 ("the defendant willfully obstructed . . . or
-38-
attempted to obstruct . . . the administration of justice with
respect to . . . sentencing"). As the district court pointed out,
Lewis was a crucial witness regarding drug quantity (which is the
primary consideration in determining the guideline offense level
for a drug offense), he was a potential government witness at
sentencing, and Cogswell did not know whether Lewis would be called
to testify at sentencing. See United States v. McMinn, 103 F.3d
216, 218-19 (1st Cir. 1997) (finding enhancement applicable when
defendant threatened someone who "remained a prospective government
witness" in further proceedings against defendant); see also United
States v. Boyd, 574 F.App'x 878, 879-80 (11th Cir. 2014)
(unpublished) (upholding enhancement where defendant threatened a
witness after defendant had pleaded guilty and was awaiting
sentencing because defendant "did not know whether [the witness's]
testimony would be used against him at sentencing"); United States
v. Rubio, 317 F.3d 1240, 1244-45 (11th Cir. 2003) (holding that an
obstruction-of-justice enhancement was appropriate based on the
defendant's assault on a witness after trial, and rejecting the
defendant's argument that because the assault occurred after trial,
it could not impact the prosecution of his case).
Cogswell's other contention -- that the enhancement is
inapplicable because he did not send the threat directly to Lewis,
but rather included it in a letter to Holmes -- suffers the same
fate. Cogswell cites United States v. Brooks, 957 F.2d 1138 (4th
-39-
Cir. 1992), in which the Fourth Circuit required the threat to be
made directly to the intended target or under circumstances in
which there is some likelihood that the intended target will learn
of the threat. Following this line of reasoning, Cogswell argues
that application of the obstruction enhancement requires proof that
Lewis actually learned of the threat against him, or at a minimum,
that Cogswell intended that Lewis would learn of the threat.
However, the Fourth Circuit's decision in Brooks has been
characterized as an outlier and no other circuit that has addressed
the issue has followed that path. See, e.g., United States v.
Searcy, 316 F.3d 550, 552-53 (5th Cir. 2002) (characterizing Brooks
as an "outlier").
The Second, Fifth, Sixth, Eighth, Ninth, Tenth, and
Eleventh Circuits have all ruled that indirect threats made to
third parties may constitute obstruction under § 3C1.1 absent a
showing that they were communicated to the target. See United
States v. Fleming, 667 F.3d 1098, 1109 (10th Cir. 2011) (holding
that to qualify as an attempt to obstruct justice a "defendant need
not actually threaten the witness; he need only attempt to
influence [him]"); United States v. Talley, 443 F.App'x 968, 972
(6th Cir. 2011) (unpublished) (holding that "statements, even when
made to a third party, which are appropriately determined to be
threatening" can constitute obstruction of justice); Searcy, 316
F.3d at 553 ("The Fourth Circuit's conclusion in Brooks
-40-
notwithstanding, there is nothing in the text of the guideline or
commentary which restricts application of § 3C1.1 only to
situations in which the defendant directly threatens a witness or
communicates the threat to a third party with the likelihood that
it will in turn be communicated to the witness."); United States v.
Bradford, 277 F.3d 1311, 1314-15 (11th Cir. 2002) (expressly
rejecting the holding in Brooks and concluding that communicating
a threat directly to a witness is not required to support
application of the obstruction-of-justice enhancement); United
States v. Jackson, 974 F.2d 104, 106 (9th Cir. 1992) ("Where a
defendant's statements can be reasonably construed as a threat,
even if they are not made directly to the threatened person, the
defendant has obstructed justice."); United States v. Capps, 952
F.2d 1026, 1028 (8th Cir. 1991) (holding that because § 3C1.1
applies to attempts to obstruct justice, it is not essential that
the threat be communicated to the target); United States v.
Shoulberg, 895 F.2d 882, 884-86 (2d Cir. 1990) (holding that a note
to a third party, where the defendant never requested that the
message be conveyed to the intended target, was an attempt to keep
the target from cooperating with the government and justified
application of § 3C1.1).
Like the Tenth Circuit, we find this reasoning more
persuasive. Since § 3C1.1 clearly applies to attempts by
defendants to directly or indirectly threaten, intimidate, or
-41-
influence a potential witness, see U.S.S.G. § 3C1.1 cmt. 4, we
conclude that the obstruction enhancement may apply where a
threatening statement is made to a third party and absent evidence
that it was communicated to the target.
Under this standard, Cogswell's statement against Lewis
constitutes an attempted obstruction of justice. While his
sentencing hearing was pending, Cogswell sent a testifying witness
a letter that included a threat to kill another testifying witness.
The district court found that Cogswell's threat against Lewis was
specific, serious, and material, and, if believed, would tend to
influence or affect the witness.9 The district court also
explained that Cogswell's reference to "my people" raises the
specter that Cogswell has "compatriots out there who are aware of
Mr. Lewis' role and will seek to do him harm." Even though
Cogswell did not direct his threat to Lewis, there was a reasonable
possibility Holmes would communicate it to him. After all, this is
not a situation where Holmes owed any obligation of confidentiality
to Cogswell. Holmes was a government witness who might well have
been motivated to share the threat with her fellow witness.
Reading the graphic and malevolent plan, especially bolstered with
an ominous reference to his 'people,' could very well cause Holmes
to share the threat with Lewis or even dissuade her from testifying
9
The district court noted that, since Lewis is African-American,
the threat to "lynch and burn" Lewis is specially "chilling in
light of this country's tragic racial history."
-42-
during Cogswell's sentencing proceedings, or make her recant her
testimony against Cogswell. Thus, the obstruction of justice
enhancement is affirmed.
D. Firearm Enhancement
The Sentencing Guidelines apply a two-level enhancement
to the base offense if the defendant possessed a firearm in
connection with the convicted offense. U.S.S.G. § 2D1.1(b)(1). A
firearm enhancement is appropriate "whenever a codefendant's
possession of a firearm in furtherance of joint criminal activity
was reasonably foreseeable to the defendant." United States v.
Mena-Robles, 4 F.3d 1026, 1036 (1st Cir. 1993) (quoting United
States v. Bianco, 922 F.2d 910, 912 (1st Cir. 1991); see also
United States v. Greig, 717 F.3d 212, 219 (1st Cir. 2013) ("To
warrant the enhancement, the defendant does not need to have
possessed the weapon herself or even to have known about it, it
just must be reasonably foreseeable that a co-conspirator would
possess a weapon in furtherance of the criminal activity." (citing
United States v. Flores–De Jesús, 569 F.3d 8, 36 (1st Cir. 2009)).
This enhancement applies unless it is clearly improbable that the
weapon was connected to the commission of the offense. United
States v. Anderson, 452 F.3d 87, 91 (1st Cir. 2006). Factual
findings of a firearm enhancement are reviewed for clear error.
Id. at 90.
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Relying on testimony from Jowenky Núñez ("Núñez"), one of
his co-conspirators, Cogswell alleges that the district court
improperly applied a firearm enhancement in calculating the
applicable GSR. At trial, Núñez testified that in December 2010,
Cogswell was at Lewis's house because he brought a gun to the
leaders of the conspiracy in exchange for ten bags of crack
cocaine. When asked if that was the only time that Cogswell was
present at Lewis's house, Núñez replied, "No, because [he] was
working with us later." Based on this testimony, Cogswell alleges
that the evidence shows that he traded a gun for drugs before he
joined the conspiracy and that the district court's finding to the
contrary (that it was in furtherance of) is erroneous. We
disagree.
The evidence shows that Cogswell traded the gun for crack
cocaine in December 2010. At least three other witnesses testified
that Cogswell was part of the conspiracy as early as August or
September 2010. The district court credited these witnesses, over
Núñez, regarding when he joined the conspiracy.10 As Núñez
testified, Cogswell gave the gun to his co-conspirators during a
drug deal. This gun became the "house gun" and was always at the
100B Ohio Street apartment, where it was frequently carried and
10
Furthermore, Núñez's testimony does not necessarily mean that
Cogswell only joined the conspiracy after he traded the gun for
drugs. Rather, his testimony may be interpreted as meaning that
Cogswell continued to be at Lewis's house after the trade because
he continued to participate in the conspiracy.
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held by co-conspirators. All this indicates that the gun played a
role in the drug conspiracy which operated out of the apartment,
and thus possession of the gun in furtherance of the conspiracy's
objectives was foreseeable to Cogswell. See Bianco, 922 F.2d at
912 (stating that firearms are "common tools of the drug trade" and
it may be inferred that a codefendant's possession of a firearm in
furtherance of their joint criminal venture is foreseeable to a
defendant with reason to believe that his acts are part of the drug
trade).
Based on this evidence, the district court's conclusion
that Cogswell was already a member of the conspiracy when he traded
the gun in December 2010 and that the firearm enhancement was
applicable are not clearly erroneous. Thus, the enhancement is
affirmed.
E. Reasonableness of Cogswell's Sentence
As discussed above, "[we] consider the substantive
reasonableness of the sentence imposed under an abuse-of-discretion
standard." Gall, 552 U.S. at 51. When conducting this review, we
take into account "the totality of the circumstances." Id.
Generally, no abuse of discretion is found "as long as the court
has provided a plausible explanation, and the overall result is
defensible." Martin, 520 F.3d at 96.
Cogswell argues that his sentence, which was almost seven
years below the advisory GSR, is substantively unreasonable in
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light of the fact that he was sentenced to a term longer than many
of his more involved co-conspirators, including the leader of the
conspiracy. His claim lacks merit.
At Cogswell's sentencing hearing, the district court made
clear its consideration of every factor listed in 18 U.S.C.
§ 3553(a) and made explicit note of its focus on Cogswell's history
and characteristics, the nature and circumstances of the offense,
and the need to avoid any unwarranted sentencing disparities among
similarly situated defendants. Regarding this last factor, the
district court noted that the disparities among the sentences that
the court had imposed on the co-defendants were attributable to a
number of factors, including that each defendant had different
criminal histories and different roles within the conspiracy, all
other defendants had pleaded guilty (except for Trinidad and
Cogswell), and some defendants cooperated with the government and
testified at trial, for which they received substantial-assistance
downward departures.
Cogswell is not similarly situated to his co-
conspirators since, at a minimum, he did not plead guilty and
accept responsibility for his crimes nor did he cooperate with the
government. See United States v. Rivera Calderón, 578 F.3d 78, 107
(1st Cir. 2009) (noting there is a "material difference between
defendants who plead guilty and those who elect to go to trial, and
any sentencing disparity that results from that difference is not
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unreasonable"); United States v. Thurston, 456 F.3d 211, 216-217
(1st Cir. 2006) (holding that a defendant who pleads guilty in
exchange for a reduced sentence is not similarly situated to a
defendant who contests his charges). Defendants who accept
responsibility and/or assist the government may receive sentence
reductions. See Vázquez-Rivera, 470 F.3d at 449 (finding the
defendant's sentence not to be unreasonable "simply because his
co-defendants agreed to help the government in exchange for reduced
sentences"); United States v. Rodríguez, 162 F.3d 135, 152 (1st
Cir. 1998) (holding that the law allows the government to offer
reduced sentences in exchange for assistance "even if it results in
sentences of such disparity as would strike many as unfair").
Taking into account Cogswell's age, level of education,
physical ailments, family situation, criminal history, his
increasing role in the conspiracy and involvement with a firearm,
his threats to murder a testifying co-conspirator, and his "utter
lack of remorse," the district court imposed a sentence of 180
months. This sentence is still almost 7 years below the advisory
guideline range of 262 to 327 months. Such an articulated
consideration of all relevant factors, coupled with a downward
variance from the advisory guidelines sentencing range, clearly
indicates that the sentencing term is sufficient but no greater
than necessary to achieve the purposes of the law. We find no
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abuse of discretion by the district court and, thus, affirm
Cogswell's sentence.
V. Conclusion
The record reflects that both Trinidad and Cogswell were
afforded a fair and impartial trial, that the evidence of their
guilt was more than sufficient to support the jury's verdicts, that
their convictions were not tainted by prejudicial error either in
the judge's charge or in the government's closing argument, and
that their sentences were reasonable. Thus, their convictions and
sentences are affirmed.
Affirmed.
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