United States v. Ayala-Pizarro

United States Court of Appeals
For the First Circuit

No. 04-1038
UNITED STATES OF AMERICA,

Appellee,

v.

LUIS DANIEL AYALA-PIZARRO

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. D. Brock Hornby,* U.S. District Judge]

Before

Torruella, Lynch, and Lipez, Circuit Judges.

Maria Soledad Ramirez-Becerra, with whom Maria Soledad
Ramirez-Becerra Law Office was on brief, for appellant.
Thomas F. Klumper, Assistant United States Attorney, with whom
H.S. Garcia, United States Attorney, and Nelson Pérez-Sosa,
Assistant United States Attorney, Senior Appellate Attorney, were
on brief, for appellee.

May 12, 2005

*
Of the District of Maine, sitting by designation.
 LYNCH, Circuit Judge. Luis Daniel Ayala-Pizarro was

convicted, after a four-day jury trial, of possession with intent

to distribute 153 decks of heroin and of knowingly possessing a

firearm in furtherance of a drug trafficking crime. 21 U.S.C.

§ 841(a)(1); 18 U.S.C. § 924(c)(1)(A)(i). He was acquitted of two

additional gun charges involving possession of semiautomatic

assault weapons. He was sentenced to twenty-four months'

imprisonment on the first charge and sixty months on the second, to

be served consecutively for a total of eighty-four months'

imprisonment. He attacks both his conviction and his sentence.

We affirm Ayala's conviction. We also affirm his

sentence, save for a limited remand, agreed to by the government,

for the purposes of conforming the drug testing and drug treatment

program portions of Ayala's supervised release conditions to the

dictates of United States v. Melendez-Santana, 353 F.3d 93 (1st

Cir. 2003).

Challenge to Conviction

Ayala argues that the district court erred in permitting

an arresting officer to cross the line from being a fact witness to

being an expert witness when the officer testified about drug

distribution points and how they operate as well as how heroin is

normally packaged for distribution at these points. Ayala objected

at trial that the officer's testimony was expert testimony under

Fed. R. Evid. 702, and that no prior notice of such expert

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testimony had been given, as required by Fed. R. Crim. P.

16(a)(1)(G). We describe the pertinent facts.

Officer Mulero, one of the arresting officers, testified

that he arrested Ayala at 2 p.m. on a Wednesday afternoon on

Melilla Street in Loiza, Puerto Rico, near a house known to be a

drug point. Officer Mulero and the other arresting officer,

Officer Pietri, were in the area looking for two suspects in the

wounding of another man. The officers observed Ayala and another

man, Luis Vazquez Alvarez, at the right-hand corner of the house.

Ayala and Vazquez did not see the officers, but the officers saw

both men and that they were armed with firearms. Indeed, Ayala was

trying to cock his gun, a Cobrai Model M11, nine millimeter caliber

semiautomatic assault weapon, at the time. The officers then

detained and arrested the two men. A search of Ayala turned up 153

aluminum-foil covered decks of heroin from his left pocket; his

companion had $250. The officers arrested three other men standing

nearby; each had a revolver. Experts determined that the heroin

weighed 10.94 grams. An expert also testified that Ayala's gun was

functioning and capable of firing in semiautomatic mode, and that

its serial number was obliterated.

At trial, when the government asked Officer Mulero about

his experience with drug points, as a lead-in to Mulero's testimony

that Ayala was arrested at a known drug point, defense counsel

objected, arguing that this was expert testimony and that because

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the government had not given notice of expert testimony from Mulero

under Fed. R. Crim. P. 16(a)(1)(G), the witness could not so

testify. At a subsequent bench conference, the government made a

proffer that the witness would also testify that the particular

packaging of the drugs seized showed they were packaged for

distribution. Defense counsel countered that the testimony about

the nature of the packaging was even more clearly expert testimony.

The court ruled that the testimony that Melilla Street was a known

drug point was permissible lay testimony. As to the packaging

issue, the court ruled it needed to hear foundational evidence and

allowed the testimony subject to a motion to strike.

Officer Mulero then testified as to how drug points work

generally, stating:

Basically one individual loads the drug while
the other one collects the money, and then you
have [men] who are armed and just waiting
around in the event other gangs might come by
and take action, and then you have others as
vigilantes to see if the cops come.

Mulero testified about his experience with Melilla Street as a drug

point. He also testified that he had made previous seizures of

heroin at drug points, and that the heroin was typically packed in

aluminum decks. Officer Mulero was then asked about the packaging

of the drugs he seized from the defendant, and replied that the

heroin was packaged "[i]n a shape or manner of a deck." Ayala did

not later move to strike.

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 On appeal, Ayala argues that he is entitled to a new

trial because two parts of Mulero's testimony, first about how drug

points operate and, second, about how heroin is packaged, could

only be given by an expert and the government failed to give notice

that Officer Mulero would testify as an expert.

As to the testimony concerning how drug points operate,

because Ayala timely objected, review is for abuse of discretion.

United States v. Balsam, 203 F.3d 72, 84 (1st Cir. 2000). As to

the testimony concerning packaging, because the objection was

denied conditionally, subject to a later motion to strike, and

Ayala made no later motion to strike, review is for plain error.

See Wilson v. Williams, 182 F.3d 562, 566-67 (7th Cir. 1999).

The government contends that neither of the two types of

testimony (on the nature of drug points and on heroin packaging for

distribution) was expert testimony under Fed. R. Evid. 702. We

agree with the government that neither type of testimony was expert

testimony at all, but was admissible as lay witness testimony under

Fed. R. Evid. 701, even after the amendments to the two rules in

December 2000. The pre-amendment version of Rule 701 required lay

opinion testimony to be "rationally based on the perception of the

witness" and "helpful to a clear understanding of the witness'

testimony or the determination of a fact in issue." In 2000, Rule

701 was amended to include the additional requirement that

testimony admitted under the rule "not [be] based on scientific,

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technical, or other specialized knowledge within the scope of Rule

702." As the advisory committee's notes explain, this amendment

was intended "to eliminate the risk that the reliability

requirements set forth in Rule 702 will be evaded through the

simple expedient of proffering an expert in lay witness clothing."

Fed. R. Evid. 701, advisory committee's note on 2000 amendment.

Instead, such expert testimony is subject to the pre-trial

disclosure requirements of Fed. R. Civ. P. 26 and Fed. R. Crim. P.

16 and the additional reliability requirements imposed by Fed. R.

Evid. 702. Id.; see also Fed. R. Evid. 702, advisory committee's

note on 2000 amendment (explaining intent to "provid[e] some

general standards that the trial court must use to assess the

reliability and helpfulness of proffered expert testimony" in the

wake of Kumho Tire Co. v. Carmichael, 526 U.S. 1379 (1999), and

Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993)).

We have noted that "[t]he line between expert testimony

under Fed. R. Evid. 702 . . . and lay opinion testimony under Fed.

R. Evid. 701 . . . is not easy to draw." United States v. Colon-

Osorio, 360 F.3d 48, 52-53 (1st Cir. 2004). Indeed, the same

witness –- for example, a law enforcement officer -- may be

qualified to "provide both lay and expert testimony in a single

case." See Fed. R. Evid. 701, advisory committee's note (citing

United States v. Figeuroa-Lopez, 125 F.3d 1241, 1246 (9th Cir.

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1997)). In this case, however, the testimony did not cross the

line to become expert testimony.

As to the testimony about how drug points operate,

Officer Mulero stated that he had investigated, patrolled, or made

arrests at drug points on more than 100 occasions. His testimony

stated what occurred at those drug points. This testimony was

based on the requisite personal knowledge under Fed. R. Evid. 602

and also met the requirements of Fed. R. Evid. 701, because it was

based on "particularized knowledge that the witness [had] by virtue

of his . . . position" as a police officer assigned to patrol the

neighborhood.1 Fed. R. Evid. 701, advisory committee's note.

Before the 2000 amendments, we had repeatedly noted that

"the modern trend favors the admission of [lay] opinion testimony

provided it is well founded on personal knowledge and susceptible

to cross-examination." See United States v. Vega-Figueroa, 234

F.3d 744, 755 (1st Cir. 2000) (quoting United States v. Paiva, 892

F.2d 148, 157 (1st Cir. 1989)). While the 2000 amendments subject

testimony falling within the scope of Rule 702 to heightened

reliability requirements and rules governing pre-trial disclosure,

Officer Mulero's testimony does not trigger these additional

safeguards. It required no special expertise for Officer Mulero to

conclude, based on his observations, that places which sell drugs

1
Defendant relies on the opinion of the Second Circuit in
United States v. Cruz, 363 F.3d 187 (2d Cir. 2004), which is
inapposite on its facts.

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are often protected by people with weapons. The defense could

hardly be surprised by Mulero's testimony that Ayala was arrested

at a drug point, nor was Ayala disabled from testing the

reliability of Mulero's perceptions through cross-examination.

As to the packaging, the officer simply testified to his

experience on prior drug arrests that the heroin seized at drug

points was "basically packed in . . . aluminum decks," and that in

this case the drugs were packaged "[i]n a shape or manner of a

deck." The agent's testimony as to what he saw is not expert

testimony. See United States v. Santana, 342 F.3d 60, 68 (1st Cir.

2003). The jury was left to draw its own conclusions as to the

contents and purpose of the decks, undoubtedly assisted by the fact

that the 153 decks seized in this case, when tested, in fact

contained heroin.

Challenge to Sentence

The government has conceded that under the rule of United

States v. Melendez-Santana, 353 F.3d 93 (1st Cir. 2003), the case

should be remanded for adjustment of the portion of Ayala's

sentence imposing conditions of supervised release, in order to

cure an impermissible delegation of authority to the probation

officer over drug testing and drug treatment. We have no reason

not to accept this concession.

Ayala tries to ride the concession further, arguing that

the term of imprisonment in the sentence is also now open. That is

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contrary to Melendez-Santana itself and a long line of cases

remanding for limited adjustment of sentences. See Melendez-

Santana, 353 F.3d at 108 (remanding for limited adjustment solely

of supervised released conditions). A remand to correct a

delegation error as to conditions of supervised release does not

open up any other aspect of a sentence for resentencing.

Ayala's brief also raised a different sort of sentencing

argument. Ayala on appeal for the first time raised an argument

that under Apprendi v. New Jersey, 530 U.S. 466 (2000), the issue

of exact drug quantity should have been found by the jury. This

argument has since been transformed into a Booker argument, due to

the Supreme Court's recent decision on the Sentencing Guidelines in

United States v. Booker, 125 S. Ct. 738 (2005). This issue was not

preserved at the trial court. On its own terms the unpreserved

Apprendi argument would have failed pre-Booker -- there would have

been no plain error. At sentencing defendant did not, and indeed

had no basis to, contest the government's evidence that the heroin

weighed 10.94 grams. See United States v. Cotton, 535 U.S. 625,

633-34 (2002) (no plain error under Apprendi when evidence of drug

quantity was overwhelming and uncontested at trial).

After the Supreme Court's recent decision in Booker, the

question for plain error review is whether defendant has shown a

reasonable probability the sentencing judge would, in a non-

mandatory Guidelines system, have imposed a more lenient sentence.

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See United States v. Antonakopoulos, 399 F.3d 68, 78-79 (1st Cir.

2005). Ayala cannot meet that standard. The sixty-month portion

of the sentence for the firearm possession was mandated by statute,

18 U.S.C. § 924(c)(1)(A)(i), (D)(ii), and the twenty-four months

for drug distribution was centered in the middle of the twenty-one

to twenty-seven month range. We see no reasonable likelihood of a

more lenient sentence should the case be remanded. Antonakopoulos,

399 F.3d at 79.

The conviction is affirmed; the sentence is affirmed save

for that limited portion of the conditions of supervised release

relating to drug testing and treatment, which is remanded for

correction in accordance with this opinion.

So ordered.

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