United States Court of Appeals
For the First Circuit
No. 02-1623
UNITED STATES OF AMERICA,
Appellee,
v.
RALPH CASAS,
Defendant, Appellant.
No. 02-1624
UNITED STATES OF AMERICA,
Appellee,
v.
FELICIANO NIEVES,
Defendant, Appellant.
Nos. 02-1785
02-1674
UNITED STATES OF AMERICA,
Appellee,
v.
WINSTON CUNNINGHAM,
Defendant, Appellant.
No. 02-1794
UNITED STATES OF AMERICA,
Appellee,
v.
RAFAEL SEGUI-RODRIGUEZ,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo-Cerezo, U.S. District Judge]
Before
Boudin, Chief Judge,
Lynch, Circuit Judge,and
Howard, Circuit Judge.
Elfrick Méndez-Morales for appellant Casas.
Raymond L. Sanchez-Maceira for appellant Nieves.
Marcia J. Silvers for appellant Cunningham.
Joseph S. Berman for appellant Segui-Rodriguez.
Nelson Pérez-Sosa, Assistant United States Attorney, with whom
Thomas F. Klumper, Assistant United States Attorney, H.S. Garcia,
United States Attorney, and Sonia I. Torres-Pabón, Assistant United
States Attorney, Chief, Criminal Division, were on brief for
appellee.
January 20, 2004
LYNCH, Circuit Judge. Four defendants, Ralph Casas,
Feliciano Nieves, Winston Cunningham, and Raphael Segui-Rodriguez,
were convicted by a jury of participating in a drug organization
that smuggled massive amounts of cocaine and heroin from Puerto
Rico and several foreign countries into Miami and New York from
September 1992 to March 1995.
Ralph Casas and Winston Cunningham were convicted of
using their positions as baggage handlers for American Airlines to
smuggle the drugs past customs and security personnel at the Miami
International Airport. Raphael Segui-Rodriguez and Feliciano
Nieves were convicted of participating in all facets of the
organization's operations in Puerto Rico, the point from which most
of the drug shipments were prepared.
In this appeal, the four defendants raise a number of
serious concerns about their trial. We vacate the conviction of
defendant Cunningham because the government improperly used as a
lead witness a government agent who testified that, based on his
investigation, the defendants were members of the charged drug
conspiracy. The error was not harmless as to Cunningham, but was
harmless as to the other defendants.
In the case of defendant Segui-Rodriguez, we also reject
the government's suggestion that we adopt a rule that, for speedy
trial purposes, the clock does not start until the indictment is
unsealed. But we find that the delay of over five years from
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indictment to trial did not violate Segui-Rodriguez's speedy trial
rights where the government did not know his location during that
period and no prejudice has been shown. We also note, but do not
resolve, an issue about the interplay between the prejudice prong
of the Brady disclosure requirements and the government's
obligations under the Jencks Act, 18 U.S.C. § 3500, to disclose
evidence only at certain times. Finally, we again affirm the
imposition of a sentence by a judge other than the judge who heard
the trial.
I.
The facts are recounted as a reasonable jury could have
found them, in the light most favorable to the verdict.
A sophisticated drug organization, based principally in
Puerto Rico, transported large quantities of cocaine and heroin
into the United States between September 1992 and March 1995. The
leader of the organization, Israel Perez-Delgado, coordinated the
work of approximately sixty subordinates. Working together, the
members of the organization transported drugs from Puerto Rico, the
Dominican Republic, and Panama into Miami International Airport for
ultimate distribution in New York. In total, the organization
smuggled approximately 9,000 kilograms of cocaine and approximately
1,400 grams of heroin into the continental United States.
The organization used various methods to smuggle the
drugs past customs and security personnel. In one scheme, women
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"mules" traveled on commercial flights from the Dominican Republic
to Miami with professionally altered garment bags containing
cocaine. On later flights the mules carried the cocaine directly
on their bodies. The organization also mailed cocaine to Miami
using overnight mail carriers. The drugs were stored in toolboxes,
and packaged with Ben Gay and Vick's Vaporub to cloak their smell.
Another method used by the organization involved hiding heroin in
the carved-out soles of sneakers. And a fourth scheme used
American Airlines flights to transport suitcases filled with
cocaine from Puerto Rico and the Dominican Republic to Miami.
Defendant Ralph Casas was in charge of the organization's
operations in Miami, the entry point for most of the drugs into the
continental United States. Casas was a baggage handler for
American Airlines at Miami International Airport and recruited
other employees to help divert drug shipments past normal security
and customs checkpoints. For instance, Bryan Francis, a
cooperating government witness and former American Airlines
employee, testified that he and Casas met at the Miami airport,
where Casas gave him shipments of cocaine that had been mailed to
Miami from Puerto Rico and had not yet been screened by security
personnel. Francis then bypassed security by using the employee's
entrance to the bag room area, traveled up to the terminal where
the passengers that had passed through security were waiting to
board flights, and regrouped with Casas. At that point, Casas
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directed Francis to a third individual, who took possession of the
cocaine and boarded a flight headed for New York. Casas paid
Francis $2500 per importation; they used this method three times.
Casas also recruited "Rasta," another employee of
American Airlines, to help smuggle drugs into the United States.
At trial, Francis and two other government witnesses, Carlos Perez-
Delgado and Thomas Martinez, identified defendant Cunningham as
Rasta. Cunningham testified, denied any involvement, but admitted
that he was called "Rasta" by some American Airlines employees.
Rasta provided assistance when one of the organization's
mules, most frequently Elizabeth Morales, a cooperating witness,
traveled on a flight from the Dominican Republic to Mexico that
stopped off in Miami (Morales did not identify Cunningham as
Rasta). In the Dominican Republic, the mule would check a suitcase
containing cocaine. Because its ultimate destination was
international, the suitcase did not go through customs when it
arrived in Miami, but was placed in a secluded area known as the
ITI room. Rasta, who had access to this area, then placed the
suitcase in an area where Francis picked it up, moved it to a
storage room for domestic bags that had already gone through
security, and put a new tag on it indicating that its destination
was New York. This occurred about four times, until Casas decided
to rely exclusively on another member of the organization (not on
trial in this case) to perform Rasta's function.
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Casas also stored drugs in his house in Miami, assisted
in packaging cocaine, and facilitated the delivery of drugs to New
York or directly to Israel Perez-Delgado when he was in Miami. He
assisted in purchasing weapons and bullet-proof vests to be used in
the course of searching for several people suspected of stealing a
shipment of drugs from the organization. Thomas Martinez testified
that, at a meeting held in New York after Israel Perez-Delgado was
arrested, Casas attempted to take control of the organization.
Martinez also testified that Cunningham attended that meeting.
Defendant Rafael Segui-Rodriguez worked directly for
Israel Perez-Delgado in Puerto Rico and assisted him in all areas
of the operation. He served as a bodyguard for Israel Perez-
Delgado and Ray Cabassa, another high-ranking member of the
organization. Additionally, he provided armed security for the
drugs while they were in storage awaiting shipping and
distribution. Segui-Rodriguez also transported firearms and
surveillance equipment from Miami to Puerto Rico and New York for
the organization.
Several witnesses specifically identified Segui-Rodriguez
as participating in drug transactions on behalf of the
organization. Thomas Martinez, for instance, testified that Segui-
Rodriguez helped deliver cocaine to Israel Perez-Delgado's New York
City apartment by hiding it inside an audio speaker in the trunk of
the car he was driving. Three guns were also in that car.
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DEA Agent Stoothoff also testified that he saw Segui-
Rodriguez, along with several others, drop off four suitcases of
cocaine at the Puerto Rico airport on March 21, 1994. Agent
Stoothoff testified that Segui-Rodriguez was sitting in the driver
seat of a black Pontiac TransAm in front of the airport and that an
Isuzu Trooper was parked directly behind the TransAm. As Agent
Stoothoff and a fellow officer walked toward the two vehicles, they
saw several people inside the cars and observed Israel Perez-
Delgado unloading suitcases from the Isuzu Trooper. Once the
officers got even closer, the people suddenly fled. Three were
caught: Jose Velez-Roman, Hector Martinez-Medina and Jose
Charluisant-Pagan were arrested, but Rafael Segui-Rodriguez escaped
after he sped off in the TransAm. Another DEA agent, Miguel
Escalera, also recounted this incident at the airport. The
suitcases were each filled with about twenty kilograms of cocaine
and had been labeled with agricultural stickers. The Isuzu also
contained an American Airlines boarding pass with the name "Rafael
Rodriguez" on it.
After being confronted with this evidence, Martinez-
Medina offered to cooperate and led officials to a house in Villa
Fontana that he claimed contained cocaine. Stoothoff and his
fellow officers secured a search warrant and found in the house
drug paraphernalia, stickers from the Department of Agriculture,
packaging material that matched materials found in the seized
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suitcases, and a Casio business organizer. The entries in the
business organizer contained the names and numbers of organization
members, including defendants Casas, Segui-Rodriguez, and Nieves.
It did not contain any information for Cunningham.
Defendant Feliciano Nieves also worked directly for
Israel Perez-Delgado, who was his brother. Nieves picked up the
suitcases of cocaine that arrived in New York from Miami and
brought back to Puerto Rico the money obtained from selling the
drugs in New York. Additionally, he provided security for the
drugs before they were shipped.
On several occasions, Feliciano Nieves helped smuggle
drugs past customs officials. For instance, he traveled to Panama
with several mules and packaged heroin inside the soles of the
sneakers that they brought back with them to Miami. He also
assisted with packaging cocaine in both the toolboxes and the
suitcases. At least once, Nieves himself served as a mule and
brought cocaine from Puerto Rico to New York.
II.
The four appellants in this case, Ralph Casas, Feliciano
Nieves, Winston Cunningham, and Rafael Segui-Rodriguez, were
originally indicted on December 13, 1995, along with fifty-six co-
defendants. The grand jury later returned a six-count superseding
indictment on August 8, 1996, against the same sixty defendants.
Count I charged all sixty defendants with conspiring between
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September 1992 and March 1995 to possess with intent to distribute
approximately 1,400 grams of heroin and 9,445 kilograms of cocaine
in violation of 21 U.S.C. § 846. Count II charged seven of the
defendants, including appellant Rafael Segui-Rodriguez, with aiding
and abetting each other in knowingly possessing with intent to
distribute approximately eighty-one kilograms of cocaine in
violation of 21 U.S.C. § 841. None of the remaining four counts
applied to the appellants here.
The district court severed the trial of the four
appellants from that of the other fifty-six indicted defendants.
The first group of indicted defendants to be tried were convicted
after a nine-month trial starting in May of 1999. The four
appellants were tried together before a jury from November 6 to
November 28, 2001; the jury found each guilty of the first count in
the superseding indictment and found Rafael Segui-Rodriguez guilty
of the second count.
The appellants were sentenced in April of 2002 by a
different judge. Casas received a life sentence. Both Nieves and
Segui-Rodriguez were sentenced to 360 months imprisonment, with a
supervised release period of ten years for Nieves and eight years
for Segui-Rodriguez. Cunningham was sentenced to serve 325 months
in prison and to a supervised release period of five years.
Additionally, Cunningham and Casas were each fined $50, Nieves was
fined $150, and Segui-Rodriguez was fined $100.
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III.
A. Pre-trial claims
1. Denial of Motion for Severance
(Casas)
Casas appeals the denial of his motion to sever his trial
from that of his three co-defendants. Casas argues that he was
prejudiced by being tried with his three co-defendants because much
of the evidence presented at trial would not have been admissible
against him in a separate trial. In particular, Casas points to
the testimony of Elizabeth Morales regarding her trips to Panama
and to Agents Stoothoff's and Escalera's testimony about the
incident at the San Juan airport on March 21, 1994.
Review of the denial of a motion to sever is for abuse of
discretion. The key question is whether the "allegedly improper
joinder likely deprived [the defendant] of a fair trial." United
States v. Burgos, 254 F.3d 8, 13 (1st Cir. 2001) (internal
quotation marks and citation omitted). Severance in cases where
the defendants were indicted together creates the possibility of
inconsistent verdicts and taxes judicial resources. United States
v. Houle, 237 F.3d 71, 76 (1st Cir. 2001). As such, a defendant
wishing to sever his trial from commonly indicted co-defendants
must make a particularly compelling showing of prejudice. See
Zafiro v. United States, 506 U.S. 534, 539 (1993).
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One classic way of attempting to show that a trial was
not fair is to argue that testimony otherwise inadmissible against
a defendant in a separate trial has been admitted in the joint
trial. Casas presents three instances of such testimony: Morales's
testimony about smuggling heroin from Panama into the United States
and Agent Stoothoff's and Agent Escalera's testimony about the
incident at the Puerto Rico Airport. At least some of this
testimony, however, would likely have been admissible against Casas
in a separate trial. See United States v. Brandon, 17 F.3d 409,
440 (1st Cir. 1994) (defendants cannot seek severance based on
spillover evidence that would have been admissible against them in
separate trial). For instance, even though Casas was not directly
involved in smuggling heroin from Panama, Morales's description of
this process would likely have been admissible against Casas to
show the scope of the conspiracy in which he knowingly
participated. See United States v. LiCausi, 167 F.3d 36, 45-46
(1st Cir. 1999). Similarly, some of Agent Stoothoff's and Agent
Escalera's testimony would probably have been admissible against
Casas in order to demonstrate the sequence of events through which
the authorities learned about his role in the organization.
Regardless, it is well understood that "a measure of evidentiary
spillover is a foreseeable concomitant of virtually every joint
trial, yet seldom indicates undue prejudice." United States v.
DeLuca, 137 F.3d 24, 36 (1st Cir. 1998).
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2. Sixth Amendment Right to Speedy Trial
(Segui-Rodriguez)
Segui-Rodriguez argues that his Sixth Amendment right to
a speedy trial and his rights under Fed. R. Crim. P. 48(b) were
violated by the delay between when his original indictment was
returned, December 13, 1995, and when he was arraigned, May 17,
2001. Such claims are analyzed by balancing four considerations:
the length of the delay, the reason for the delay, the defendant's
assertion of his right, and the prejudice to the defendant. Barker
v. Wingo, 407 U.S. 514, 530 (1972); United States v. Trueber, 238
F.3d 79, 87 (1st Cir. 2001). The length of the delay between
indictment and arraignment here was five-and-a-half years.
The government urges that we adopt a bright-line rule
that the relevant time period for purposes of the right to a speedy
trial begins to run only once the indictment is unsealed, which was
about seven months before trial here. The government cites no case
supporting its argument.1 We reject the government's position.
The Supreme Court in Barker has mandated a balancing test, and the
government's bright line rule is inconsistent with Barker.
It is easy to imagine a situation where, by the time an
indictment is unsealed, the defendant suffers prejudice --
1
Perhaps the government has confused the speedy trial claim
with the rule that a properly sealed indictment is timely even if
it is made public after the end of the statutory limitations
period. Wright, King & Klein, 3B Federal Practice & Procedure
Criminal § 814 (3d ed. 2003).
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important documents may be destroyed or key witnesses may die as a
result of a delay caused by sealing the indictment. This is true
whether the government's reasons for sealing the indictment are
good or bad, see United States v. Thompson, 287 F.3d 1244, 1252-56
(10th Cir. 2002). The reasons for sealing may certainly be
relevant to the analysis.
We see no reason why a defendant should not be able to
make a speedy trial claim when the government has delayed the trial
by sealing the indictment, regardless of the government's reasons.
Instead, we adhere to the Barker rule that these facts must be
considered under the four-part inquiry. Prosecutors bear the
primary burden of bringing a case to trial; they may not hide
behind the sealing of an indictment to avoid examination of the
delay that they cause.
There are two reasons why Segui-Rodriguez's right to a
speedy trial was not violated: the government had a legitimate
reason for the delay and there was no prejudice. The government has
some obligation of diligence in efforts to find the accused.
Doggett, 505 U.S. at 652-53. The trial court determined that the
prosecution was unable to locate Segui-Rodriguez until March of
2001, when it learned that he was imprisoned in New York State.
Once it discovered his whereabouts, the prosecution quickly acted
to have him transferred to Puerto Rico so the criminal proceedings
against him could commence. Segui-Rodriguez has not shown any
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error in the trial court's conclusion that the government did not
intentionally delay and genuinely did not know where he was. He
has also not shown any lack of diligence on the part of the
government in attempting to locate him.
Segui-Rodriguez complains, without providing any
specifics, that some of the witnesses may have had unclear
memories. This consideration, though, "is a two-edged sword . . .
[because] [i]t is the Government that bears the burden of proving
its case beyond a reasonable doubt." United States v. Loud Hawk,
474 U.S. 302, 315 (1986). Segui-Rodriguez makes no separate
argument that the seven months between arrest and trial was itself
a speedy trial violation.
B. Trial Claims
1. Evidentiary Claims
Review of rulings on preserved evidentiary objections is
for abuse of discretion. United States v. Santana, 342 F.3d 60, 68
(1st Cir. 2003). Review of evidentiary rulings where no objection
was made is for plain error. Under the plain error test, the
reviewing court must find (1) error, (2) that is plain, (3) and
affects substantial rights, (4) and then should only act if the
error seriously affects the fairness, integrity, or public
reputation of judicial proceedings. United States v. Olano, 507
U.S. 725, 731-36 (1993).
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a. "Triggerman" evidence
(Nieves)
Nieves argues that the testimony of Carlos Perez-Delgado
that Nieves was a "triggerman" in the organization was
impermissible character evidence and unfairly prejudicial because
it suggested without foundation that Nieves carried a weapon. At
trial, counsel for Nieves objected to Perez-Delgado's testimony and
the district court sustained that objection. Nieves argues that
the trial court should also have sua sponte told the jury to
disregard this testimony, though he did not request such an
instruction at trial.
Generally, a district court has no obligation to caution
a jury to disregard every improper statement made by a witness when
it has sustained an objection to that statement. See United States
v. De La Cruz, 902 F.2d 121, 124 (1st Cir. 1990) (the general rule
is that a trial court's failure sua sponte to give a cautionary
instruction is not reversible error). There is nothing
extraordinary here to warrant an exception to that rule.
b. Brady Claims
A Brady violation has three components: "[t]he evidence
at issue must be favorable to the accused, either because it is
exculpatory, or because it is impeaching; that evidence must have
been suppressed by the State, either willfully or inadvertently;
and prejudice must have ensued." United States v. Joselyn, 206
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F.3d 144, 153 (1st Cir. 2000) (quoting Strickler v. Greene, 527
U.S. 263, 280 (1999)). In determining prejudice, the test is not
whether the verdict would have been different, but whether there is
a reasonable probability that the favorable evidence would put the
whole case in such a different light as to undermine confidence in
the verdict. Id. at 152 (quoting Kyles v. Whitley, 514 U.S. 419,
434 (1995)).
i. Casas
Casas argues that the prosecution failed to turn over
exculpatory evidence that he requested in pre-trial motions,
thereby violating Brady v. Maryland, 373 U.S. 83 (1963). This
evidence includes the plea and cooperation agreements of two
government witnesses, Thomas Martinez and Elizabeth Morales, the
results of a positive drug test taken by Morales, and the
transcript of government witness Wilson Rodriguez's testimony in an
earlier trial of the four defendants' alleged co-conspirators.
Casas argues that the government's failure to disclose this
evidence in a timely fashion hindered his ability to impeach these
government witnesses. See Giglio v. United States, 405 U.S. 150,
153-55 (1972). Each of Casas's claims raises different concerns.
The plea agreements of the two government witnesses,
Martinez and Morales, were belatedly given to the defendants after
the second day of trial. In cases of delayed disclosure, "the
test is whether defendant's counsel was prevented by the delay from
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using the disclosed material effectively in preparing and
presenting the defendant's case." United States v.
Villarman-Oviedo, 325 F.3d 1, 13 (1st Cir. 2003) (internal
quotations omitted); see United States v. Devin, 918 F.2d 280, 290
(1st Cir. 1990) (the defendant must show "a plausible strategic
option which the delay foreclosed").
The court acted promptly and appropriately to offset any
potential harm to Casas. When the defense first objected during
trial that it had not received the agreements, the court ordered
the prosecution to turn over all such agreements that day, before
the defense was to cross-examine any of the government's witnesses
who had signed such an agreement. The government also agreed not
to elicit any testimony from Morales -- the witness on the stand
when the defense lodged its objection -- about her plea agreement
(beyond the fact that she had signed one) until the following day,
at which point the defense would have had an opportunity to review
the agreements.
The defense cross-examined Morales effectively regarding
the plea agreement the next day -- Casas's counsel spent the bulk
of his cross-examination questioning Morales about the favorable
treatment she received from the government in exchange for her
cooperation in the case. The defense had an even greater
opportunity to prepare for cross-examining Martinez about his plea
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agreement, as he was not called to be a witness until November 12,
four days after the government turned over his plea agreement.
Casas next argues that the government did not reveal that
Morales had tested positive for drug use after she started
cooperating with the government in this case. While being cross-
examined, Morales explained that she had been administered weekly
drug tests as part of her cooperation agreement with the government
and that she had failed one such test in 1996. Defense counsel
then objected to not receiving this information in discovery. As
the district court pointed out and defense counsel acknowledged,
the admission that Morales had failed the test meant that there was
no prejudice. See United States v. Jadusingh, 12 F.3d 1162, 1166
(1st Cir. 1994) (no prejudice when a government witness's past
substance abuse was fully disclosed to the jury in his testimony).
Casas also argues that the government did not produce a
transcript of government witness Wilson Rodriguez-Pelaez's
testimony in the 1999 trial of the defendants' alleged co-
conspirators. Casas first requested the transcript the day after
Rodriguez-Pelaez began his testimony. In response, the prosecution
informed the court that, to the best of its recollection, the
earlier testimony had not been transcribed. When Casas complained
that he was at a disadvantage, the court responded that "you can't
ask in the midst of a trial for a transcript that does not exist."
It is not clear from the record whether the prosecution was correct
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that Rodriguez-Pelaez's testimony from the earlier trial had not
been transcribed. Whether or not it was transcribed and whether
the government should have produced it or Casas should have ordered
a transcript himself need not be resolved. Casas still has not
shown what inconsistencies, if any, exist between Rodriguez-
Pelaez's testimony in this trial and his earlier testimony, and so
no harm is evident.
ii. Cunningham
Cunningham separately argues that the prosecution
violated its Brady obligations on two occasions. The first alleged
Brady violation arose with the testimony of cooperating witness
Bryan Francis. During cross-examination, Cunningham's counsel
asked Francis if he had committed perjury on his application for
United States citizenship; the application contains a question
asking whether the applicant has ever trafficked in narcotics.
This was the first time that Francis's citizenship application had
come up at trial and Cunningham had not requested the actual
citizenship application during discovery. Francis responded that
his answer to the question on the citizenship application -- which
denied any involvement in narcotics trafficking -- was truthful at
the time made. Francis said he filled out the application in 1993,
before he first started trafficking in narcotics. The day after
Francis finished testifying, Cunningham's attorney for the first
time requested a copy of Francis's citizenship application from the
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government. The government stated that it would be "virtually
impossible to produce [the record] without [] prior notice that
[it] would be required," but then did produce the document within
six days after Cunningham had finished presenting his defense. The
citizenship application showed that it was filed in 1995,
indicating that Francis had given a false answer on the application
when he denied trafficking drugs. Despite this new evidence,
Cunningham made a strategic choice not to recall Francis to the
stand.
There was no violation because the prosecution had no
obligation to produce the document under Brady. The obligation
under Brady to disclose evidence that the defense has not requested
applies only when the prosecution or others acting on its behalf
knew or should have known of its materiality. See Strickler, 527
U.S. at 280-81; Josleyn, 206 F.3d at 153 (a Brady violation
requires that the government either literally suppressed the
evidence or should have known of its existence). Neither of these
conditions is satisfied here. The citizenship application was not
in the prosecution's files; the prosecution apparently had to get
it from another agency not under its supervision in this case. See
United States v. Avellino, 136 F.3d 249, 255 (2d Cir. 1998)
(although individual prosecutors are presumed to have knowledge of
information gathered by members of their office, they are not
presumed to possess the knowledge of persons employed by a wholly
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separate government branch). The prosecution did not learn of the
perjury until it examined the document for the first time -- well
after the start of the trial.
The second Brady violation alleged by Cunningham involves
the government's failure to turn over the testimony of witness
Carlos Perez-Delgado from the 1999 trial. At the trial involved in
this appeal, Carlos Perez-Delgado identified Cunningham as Rasta.
Cunningham's counsel then asked the prosecution for any
identifications of someone other than Cunningham as Rasta and the
government represented, wrongly, that it had no such material.
Cunningham's counsel was subsequently informed by counsel for
another defendant that Perez-Delgado had testified at the earlier
trial that Rasta was named "Bryan." Bryan Francis was admittedly
involved in the organization, and, like Cunningham, worked for
American Airlines in Miami and was black. Cunningham moved to
dismiss for prosecutorial misconduct or to strike the in-court
identification. The trial court denied the motion after the
prosecutor asserted that he simply "ha[d] no recollection" of the
inconsistent identification.
We will assume that the government should have disclosed
this exculpatory information under Brady, even though the earlier
transcript may have been available to defense counsel (there is no
record of whether this was the case). We also assume that there
was a witness statement from Perez-Delgado to the government,
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covered by the Jencks Act, in which Perez-Delgado said that Rasta
was someone named Bryan. We assume further, in the defendant's
favor, that prejudice can occur under Brady even when the statement
is disclosed immediately after the witness's direct examination and
before cross-examination, in accordance with the Jencks Act.2 18
U.S.C. § 3500(a). Cunningham still cannot demonstrate a Brady
violation because he was not prejudiced by the government's belated
disclosure. Certainly Cunningham's cross-examination of the
witness did not suffer from the belated disclosure: Cunningham's
counsel cross-examined Perez-Delgado on his prior identification
and got him to admit that he had previously testified under oath
that Rasta was actually government witness Bryan Francis.
The question then is whether some other form of prejudice
resulted from the government's failure to disclose earlier.
Cunningham says that the late disclosure prejudiced his ability to
persuade the court to stop Perez-Delgado from identifying him in
2
There is an argument that Cunningham suffered no prejudice
because, under the Jencks Act, he was entitled to the previous
statement only after the direct examination of Carlos Perez-
Delgado, which is when he received it. See 18 U.S.C. § 3500(a).
This argument depends on the relationship between the Jencks Act
and Brady. Other courts have noted this potential conflict between
Brady and the Jencks Act, and have come to conflicting conclusions
on the proper interplay of the two doctrines. Compare United
States v. Bencs, 28 F.3d 555, 561 (6th Cir. 1994), with United
States v. Snell, 899 F. Supp. 17, 21 (D. Mass. 1995). We do not
enter this debate, as the issue can be resolved on alternative
grounds.
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court. Understanding this issue requires a description of that in-
court identification.
c. In-court Identification Procedure
Cunningham argues independently that the government
violated a pre-trial order by eliciting Perez-Delgado's in-court
identification of him. We deal with that claim and the claim of
Brady prejudice together. The government only provided notice that
Perez-Delgado would be identifying Cunningham after Perez-Delgado
had already given some of his testimony and had therefore seen
Cunningham sitting with the three other defendants. This, argues
Cunningham, violated a pre-trial order requiring the government to
provide advance notice of any in-court identifications so that the
defendant could sit in the courtroom audience.
The district court correctly determined that the
government's belated notice that Perez-Delgado was going to
identify Cunningham as Rasta did not violate the pre-trial order.
Cunningham had previously chosen not to sit in a different part of
the courtroom when Thomas Martinez identified him as Rasta, and
both the court and the government reasonably interpreted this as an
indication that Cunningham also did not want to move to the back of
the courtroom for future witness identifications. Outside of the
pre-trial order, Cunningham had no general right to sit in the
courtroom audience during the in-court identification; the district
court enjoys wide discretion in establishing procedures for such
-24-
identifications. See 2 LaFave, Criminal Procedure § 7.4(g) (2d ed.
1999).
We turn back to the issue of whether, had Cunningham
known of Perez-Delgado's earlier testimony identifying Rasta as
Bryan, Cunningham could have persuaded the trial court not to
permit the in-court identification. There is no reason to think
so. In fact, this very argument was made to the trial court later
and the court was unmoved. As a result, the lateness in obtaining
the information did not meet the Kyles prejudice test.
d. Error in Admission of DEA Agent Stoothoff's Conclusory
Testimony About "the Organization"
(Segui-Rodriguez, Cunningham, and Casas)
Defendants Cunningham, Casas, and Segui-Rodriguez argue
that there was reversible error in the admission of a portion of
the testimony of Agent Stoothoff. The objections were preserved.
The government's misguided use of Agent Stoothoff to map out its
case and to describe the role played by individual defendants
raises a number of serious questions.
Agent Stoothoff, the first witness called by the
government, began with admissible testimony based on his personal
knowledge of observed events. He testified about his involvement
in the incident at the airport on March 21, 1994, and the search of
the house at Villa Fontana later that day.
Stoothoff was then shown a document containing names and
telephone numbers extracted from the Casio business organizer
-25-
seized at the house in Villa Fontana. When asked by the government
what his investigation revealed as to these entries in the business
organizer, Agent Stoothoff testified that they were names and
numbers of members of the "organization," which he defined as the
"drug trafficking group that was associated with Israel Perez-
Delgado." He then explained that the entries for "Bert", "Felix"
and "Rafael" referred to defendants Ralph Casas, Feliciano Nieves,
and Rafael Segui-Rodriguez, respectively. Agent Stoothoff did not
testify about any entry for Cunningham.
Agent Stoothoff proceeded to give a general description
of his investigation after the arrests of Jose Velez-Roman, Hector
Martinez-Medina and Jose Charluisant-Pagan, the three suspects at
the airport on March 21, 1994. He testified that the DEA in Puerto
Rico communicated with its counterpart in New York and with the New
York police department and determined that several people whose
names had come up in the Puerto Rico investigation were also wanted
for questioning in New York. Officials in Puerto Rico and New
York, he said, began communicating with each other on a regular
basis about the case. Stoothoff also testified that the DEA in
Puerto Rico, with the aid of several wiretaps in New York, learned
of the scope of the organization and its basic methods for
smuggling drugs into the country for distribution in New York.
The prosecutor then asked Agent Stoothoff to name
individuals whom he had determined were members of the organization
-26-
in Puerto Rico. Stoothoff began listing a number of people,
including Feliciano Nieves and Rafael Segui-Rodriguez.
Defense counsel for Cunningham objected on grounds of
hearsay and that the witness was testifying as to the ultimate
issue in the case. The hearsay objection was that Stoothoff was
not testifying about his own investigation but rather about what he
was told in post-arrest statements from individuals who, because
they had been arrested, were no longer part of the conspiracy. The
judge denied both objections and said that defense counsel could
inquire whether Stoothoff was testifying on an ultimate issue in
the case during cross-examination.
Later, Stoothoff was asked, "what did your investigation
reveal as to members of the organization operating out of Miami,
Florida?" Again, there were objections by defense counsels for
Cunningham and Segui-Rodriguez, which the court again overruled.
Agent Stoothoff then answered the question, saying "[t]here were
Ralph Casas, . . . there were Bryan Francis, Winston -- well, at
the time we knew the name of Rasta, we later identified that Rasta
as being Winston Cunningham." Stoothoff also described the role
that various individuals played in the organization and said that
his "investigation reveal[ed]" that the organization moved more
than 5,000 kilograms of cocaine and 1,400 grams of heroin between
September 1992 and March 1995.
-27-
Stoothoff's conclusory testimony about the conspiracy and
its members, it appears, was at least partially based on
information provided by Israel Perez-Delgado, who cooperated after
he was arrested. But Israel Perez-Delgado did not testify.
Cunningham also objected on this basis to Stoothoff's testimony,
and the court again rejected the objection.
In sum, Agent Stoothoff testified that there was a drug
trafficking organization associated with Israel Perez-Delgado, that
Cunningham was Rasta, that all four of the defendants were members
of this organization, and that the organization handled specific
massive quantities of cocaine and heroin. In doing so, he went
well beyond his personal knowledge based on the airport incident
and the search. Further, he did not differentiate the testimony
that was based on personal knowledge from other sources of
information, often hearsay. Nor did he present testimony about the
characteristics of large-scale drug organizations in general. See,
e.g., United States v. Alatorre, 222 F.3d 1098, 1100 (9th Cir.
2000). Instead, using the word "organization" rather than
"conspiracy," he essentially testified that each of the defendants
was guilty of the conspiracy charged. At oral argument,3
3
Although the government's brief includes in the Table of
Contents a heading purporting to argue that Agent Stoothoff's
testimony was permissible, the contents of the brief do not include
any such argument. The brief does briefly address whether the
testimony was hearsay in another section. This omission in the
government's brief was brought up at oral argument and the
government has made no attempt to correct the error. We are at a
-28-
government counsel wrongly characterized the agent's testimony as
summary evidence.
Agent Stoothoff's testimony was fatally flawed for very
basic reasons. It was not a summary of testimony admitted in
evidence. Further, there is no indication that Agent Stoothoff's
conclusions that the defendants were members of the drug
organization were even based on testimony that was eventually
presented at trial and could be evaluated by the jury. Agent
Stoothoff merely said that his conclusions were based on the
"investigation." In fact, Agent Stoothoff's testimony was likely,
at least in part, based on the statements of a witness that the
government chose not to call at trial; the record shows that the
purported leader of the conspiracy, Israel Perez-Delgado,
cooperated with the government and provided information. But
Israel Perez-Delgado did not testify. The defendants had no chance
to cross-examine him, did not know what he had said to the
government, and had no basis to challenge a conclusion drawn from
what he had said. If evidence does not exist in the record, the
testimony can hardly be a summation of it. See United States v.
Kayode, 254 F.3d 204, 211-12 (D.C. Cir. 2001) (error to permit
government agent to give summary testimony where no foundation was
ever laid). And, evidence which is based on inadmissible hearsay
loss to understand the government's indifference to a key issue in
the case.
-29-
is itself inadmissible. See Martin v. Funtime, Inc., 963 F.2d 110,
116 (6th Cir. 1992); Hackett v. Housing Auth., 750 F.2d 1308, 1312
(5th Cir. 1985).
In fact, Stoothoff was not even a summary witness
attempting to summarize documents, Fed. R. Evid. 1006, or testimony
(to the very limited extent that is ever permissible) already
before the jury. He was presented as a preliminary overview
witness. At least one other court, the Fifth Circuit, has
condemned such "overview" testimony by a government agent presented
at the outset of a trial. United States v. Griffin, 324 F.3d 330,
349 (5th Cir. 2003). The prosecution in that case called as its
second witness an FBI agent, who testified broadly about the
defendant's role in a tax-fraud conspiracy. The testimony was
based on the accounts of several witnesses that the government
presented later in the trial. In holding it was error to admit
this preliminary overview testimony, the Fifth Circuit said that
"[w]e unequivocally condemn this practice as a tool used by the
government to paint a picture of guilt before the evidence has been
introduced." Id.
We agree with the Fifth Circuit that this initial witness
"overview testimony" is inherently problematic: such testimony
raises the very real specter that the jury verdict could be
influenced by statements of fact or credibility assessments in the
overview but not in evidence. See id. There is also the
-30-
possibility that later testimony might be different than what the
overview witness assumed; objections could be sustained or the
witness could change his or her story. Overview testimony by
government agents is especially problematic because juries may
place greater weight on evidence perceived to have the imprimatur
of the government. Cf. U.S. v. Perez-Ruiz, No. 02-1466, 2003 U.S.
App. LEXIS 25889, at *23 (1st Cir. Dec. 19, 2003) ("It follows
inexorably" from the prohibition on vouching "that the prosecution
cannot prop up a dubious witness by having a government agent place
the stature of his office behind the witness."). The fact that we
and the Fifth Circuit have now had to address the government's use
of such preliminary overview government agent witnesses is a
troubling development. The government should not knowingly
introduce inadmissible evidence; it risks losing convictions
obtained by doing so.
It is true that expert witnesses have leeway other
witnesses do not. In certain circumstances, expert witnesses are
permitted to recount earlier evidence presented to the jury in the
course of rendering an expert opinion.4 The Federal Rules of
4
For instance, this court permitted an expert witness to
summarize the testimony presented at trial in the course of
calculating the income tax owed by a defendant facing tax evasion
and drug charges. United States v. Sutherland, 929 F.2d 765, 779-
80 (1st Cir. 1991). That expert testified, after the other
evidence had been admitted, that one possible source of the
defendant's income was drug activities. It was part of the
government's case to show likely sources of income. The testimony
was explicitly based on testimony and evidence that the jury had
-31-
Evidence also allow experts, in certain circumstances, to rely on
underlying facts or data which are not themselves admissible, see
Fed. R. Evid. 703.
Agent Stoothoff's testimony is clearly not justified as
expert summary testimony. Most obviously, Stoothoff was never
introduced or qualified as an expert and even now the government
does not claim he was an expert. More fundamentally, though, Agent
Stoothoff's testimony that particular persons were members of the
conspiracy was not an appropriate subject for expert testimony. It
was not in any way linked to the "specialized knowledge" that Rule
702 requires. See United States v. Johnson, 54 F.3d 1150, 1157-58
(4th Cir. 1995) ("Rule [703] does not afford the expert unlimited
license to testify or present a chart in a manner that simply
summarizes the testimony of others without first relating that
testimony to some 'specialized knowledge' on the expert's part as
required under Rule 702 of the Federal Rules of Evidence."). As we
explained in United States v. Montas, 41 F.3d 775 (1st Cir. 1994):
Expert testimony on a subject that is well within the
bounds of a jury's ordinary experience generally has
little probative value. On the other hand, the risk of
unfair prejudice is real. By appearing to put the
heard and seen and the jury could decide for itself the likely
source of income. See id.; accord Yoffee v. United States, 153
F.2d 570, 574 (1st Cir. 1946) (government accountant's testimony
based on corporate ledger sheets that corporate transactions were
not reflected as sales on books and tax returns was admissible,
where defendant had access to ledger sheets and did not introduce
the ledger sheets or object to the testimony on the ground that
they were not in evidence).
-32-
expert's stamp of approval on the government's theory,
such testimony might unduly influence the jury's own
assessment of the inference that is being urged.
Id. at 784. This is not like testimony that a defendant's
fingerprints are on a weapon, for which specialized knowledge is
required. This testimony threatened to usurp the role of the jury.
The admission of improper testimony is harmless if it is
highly probable that the error did not influence the verdict. See
United States v. Piper, 298 F.3d 47, 56 (1st Cir. 2002). The
government, not the defendants, bears the burden of establishing
harmlessness. United States v. Rose, 104 F.3d 1408, 1414 (1st Cir.
1997). In conducting this inquiry, "[t]here is no bright-line
rule"; the "harmlessness determination demands a panoramic,
case-specific inquiry considering, among other things, the
centrality of the tainted material, its uniqueness, its prejudicial
impact, the uses to which it was put during the trial, the relative
strengths of the parties' cases, and any telltales that furnish
clues to the likelihood that the error affected the factfinder's
resolution of a material issue." United States v. Sepulveda, 15
F.3d 1161, 1182 (1st Cir. 1993). The effects of the improper
testimony vary by defendant.
Segui-Rodriguez
The error was harmless as to Segui-Rodriguez. Other
evidence presented at trial, as well as the admissible testimony of
Agent Stoothoff based on personal knowledge, clearly established
-33-
that Segui-Rodriguez was a member of the conspiracy. Agent
Stoothoff saw Segui-Rodriguez driving the TransAm at the Puerto
Rico Airport, and so identified him. A boarding pass with the name
"Rafael Rodriguez" on it was found in the Isuzu Trooper that was
impounded at the airport. Co-conspirator Hector Martinez-Medina,
who was arrested during the incident at the airport, identified
Segui-Rodriguez as the driver of the TransAm. Elizabeth Morales,
who served as a frequent drug courier for the organization,
testified that Segui-Rodriguez told her in March 1994 that he had
just run into DEA agents at the airport and had fled, leaving
behind 81 kilograms of cocaine. Segui-Rodriguez's presence next to
the Isuzu that contained suitcases of cocaine, combined with his
fleeing the scene when approached by the officers, strongly linked
him to the overall conspiracy.
Multiple government witnesses all identified Segui-
Rodriguez as an important figure in Israel Perez-Delgado's drug
organization. Carlos Perez-Delgado testified that Segui-Rodriguez
was the triggerman for the organization, the bodyguard of Israel
Perez-Delgado, and was responsible for transporting firearms and
surveillance equipment from Miami to Puerto Rico and New York.
Thomas Martinez, another former co-conspirator, testified
in detail about Segui-Rodriguez's responsibility for guarding and
preparing drug shipments. He described one instance in which
Segui-Rodriguez assisted in transporting cocaine hidden in an audio
-34-
speaker to Israel Perez-Delgado's apartment in New York. Martinez
testified that Segui-Rodriguez had three guns, including two semi-
automatic pistols, with him during this incident. Martinez also
described a second incident in which Segui-Rodriguez brought him
and Israel Perez-Delgado to the house of Carlos Perez-Delgado,
where 675 kilograms of cocaine was stored. Martinez said that
Segui-Rodriguez and several others stood armed guard over the
cocaine for about a week, using guns provided by Segui-Rodriguez
and Israel Perez-Delgado. Segui-Rodriguez then assisted in
transporting 360 kilograms of the cocaine into Carlos Perez-
Delgado's van, and then out of the van and into the house of
another co-conspirator, Freddy Melendez.
Elizabeth Morales confirmed that Segui-Rodriguez was
generally present when the drugs were being distributed. She
testified that Segui-Rodriguez would sometimes drive her to the
airport after drugs had been strapped to her body, and that he was
present at meetings between organization members at Israel Perez-
Delgado's apartment in New York City. Vivian Santiesteban, another
co-conspirator, also identified Segui-Rodriguez as a member of the
organization, and described one occasion in which he helped package
drugs and another in which he helped two mules escape police
custody in Aguadilla. This evidence of guilt was overwhelming; the
error in the agent's testimony was harmless as to Segui-Rodriguez.
-35-
Casas5
Casas was also not harmed by the erroneous admission of
Stoothoff's testimony. The evidence at trial firmly established
that Casas played a major role in the organization; as such, it is
highly probable that Stoothoff's conclusion that Casas was the
leader of the Miami branch was the same determination that the jury
would have drawn in the absence of the inadmissible testimony.
Numerous witnesses testified that Casas was the leader of
the organization's branch in Miami and played an active part in
recruiting new members and coordinating their activities. For
instance, Bryan Francis explained that Casas recruited him to help
smuggle drugs past customs officials, promising him that he could
"make some easy money." On multiple occasions, Casas paid Francis
$2,500 to carry a suitcase containing cocaine from the employee-
only part of the airport to the main terminal, thus bypassing
security. At the direction of Casas, Francis would then give the
drugs to a third person who took them with him on a plane headed to
New York. Francis testified that Casas also recruited other
American Airlines employees to assist.
Elizabeth Morales testified that Casas directed American
Airlines employees Francis and Rasta in schemes to smuggle cocaine
5
Although it is not clear whether Casas joined in the
objections of Cunningham and Segui-Rodriguez at trial, and he only
minimally raises the issue of Stoothoff's testimony on appeal, we
assume arguendo that the issue was preserved.
-36-
into the country. Morales said that Casas explained to her a
scheme in which she would fly from Puerto Rico to Brazil, with a
stop-over in Miami. The suitcases Morales checked in Puerto Rico
would then be removed by organization members in Miami, before they
ever went through customs. The drugs were then snuck out of the
airport and into waiting cars.
Witness Carlos Perez-Delgado confirmed this method of
transporting drugs, and explained that "the group led by Ralph
Casas" removed the suitcases containing drugs and redirected them
to New York. Casas was "the boss, the big guy in Miami, and he
supervised the people who were working at Miami." The testimony of
Vivian Santiesteban, the wife of Carlos Perez-Delgado, buttressed
this account. Santiesteban described a meeting involving Casas,
Israel Perez-Delgado, and Carlos Perez-Delgado, in which they
discussed "using the contacts that they ha[d] inside American
Airlines for the smuggling of the drugs."
The evidence showed that Casas's role went well beyond
coordinating organization affiliates inside the airport; he was
also actively involved in storing and transporting the drugs once
they had been successfully smuggled past airport security. Thomas
Martinez testified that Casas delivered two suitcases of cocaine to
Israel Perez-Delgado in Miami and loaded a duffle bag of cocaine
into the car he was driving. Martinez also said that Casas
-37-
accompanied him on at least one occasion to the airport to pick up
shipments of cocaine.
Another government witness, Wilson Rodriguez, confirmed
Casas's prominent role in storing drugs. Rodriguez testified that
he picked up overnight shipments of cocaine that were sent to
numerous post offices in the Miami area and drove them to Casas's
apartment to be stored. Rodriguez also described delivering 100
kilograms of cocaine to Casas's house. Additionally, Carlos Perez-
Delgado testified that Casas stored drugs in his apartment and was
responsible for packaging those drugs and transporting them from
Miami to New York.
Casas also occasionally coordinated the efforts of
organization members outside of Miami. For instance, Martinez
testified that Casas led several organization members on an
expedition in Miami and Fort Lauderdale to purchase guns and
bullet-proof vests. He also explained that after Israel Perez-
Delgado was arrested, Casas helped organize a meeting of
organization members in New York. Again, the evidence of guilt was
overwhelming.
Cunningham
By contrast, the government has not borne its burden of
showing that the improper admission of the evidence was harmless as
to Cunningham. The evidence presented at trial clearly established
that someone named "Rasta" was a member of the organization and
-38-
assisted Casas in switching the bags. The key question is whether
Rasta is Cunningham or is someone else. The link between Rasta and
Cunningham is not firm enough for us to conclude that it is highly
probable that the error did not influence the verdict.
Accordingly, we vacate Cunningham's conviction.
Aside from Agent Stoothoff, three witnesses -- Bryan
Francis, Carlos Perez-Delgado, and Thomas Martinez -- identified
Cunningham as Rasta. The strongest witness is Francis, who
testified that he had met Rasta more than once or twice. Francis
worked with Cunningham at American Airlines and testified that
Cunningham moved suitcases filled with cocaine for Casas four
times. Francis testified that he would give baggage information to
Cunningham, who would then remove the bag from the ITI room so that
Francis could pick up the bag, re-tag it, and move it to a room for
luggage that had already been screened. However, Francis signed an
affidavit saying that, to his personal knowledge, Winston
Cunningham was not involved in the case. This was after Francis
was arrested in connection with this case but before he had agreed
to cooperate with the government. Cunningham also stated when he
was arrested that some people at work called him "Rasta," but in
his testimony denied any involvement in the organization.
The testimony of the other two witnesses that Cunningham
was Rasta was less probative. Martinez and Carlos Perez-Delgado
were each asked in court to identify Rasta -- whom witnesses had
-39-
testified was black -- and both identified the only black defendant
in the courtroom, Cunningham. Each witness had only met Rasta once
or twice briefly some seven or more years earlier. They may have,
under the circumstances, mistakenly identified Cunningham, the only
black defendant in the courtroom, as Rasta.
Carlos Perez-Delgado's identification of Cunningham as
Rasta was based solely on a single meeting in September 1993 at the
Miami airport, eight years before the trial. Perez-Delgado
testified that, during that meeting, Casas introduced Cunningham to
him as Rasta, and that the three of them spoke about a missing
suitcase of cocaine. But this testimony is not consistent with
Perez-Delgado's earlier testimony given in 1999, closer to the
events at issue, that Rasta was a man named "Bryan." Bryan
Francis, the major witness to identify Cunningham as Rasta, also
worked for American Airlines, moved bags of cocaine for Casas, and
was black.
Thomas Martinez's identification of Cunningham as Rasta
was based on only two encounters described at trial, both of which
occurred about seven years prior to trial. In the first encounter,
Rasta stuck his head inside a van in which Martinez was sitting and
said, "We can't find the suitcases." This did not provide Martinez
with a strong basis upon which to identify Cunningham seven years
later. The second encounter in which Martinez allegedly met
Cunningham was a November 1994 meeting in New York during which
-40-
Casas suggested that he would take over Israel Perez-Delgado's
position. But this account conflicts with Bryan Francis's
testimony that Casas only used Cunningham to move four bags and
decided in January 1994 (ten months before the New York meeting)
not to rely any further on Rasta.6
We cannot say that it is highly probable that the jury
would have convicted Cunningham in the absence of Stoothoff's
improper testimony. Because we vacate Cunningham's conviction, we
do not address any of his other liability or sentencing arguments.
e. Speculative and Hearsay Testimony
(Segui-Rodriguez, Casas)
Segui-Rodriguez argues that the court improperly admitted
overly speculative testimony from government witnesses Elizabeth
Morales, Carlos Perez-Delgado, and Vivian Santiesteban. But Segui-
6
Martinez's account of his second encounter with Cunningham
also conflicted with his earlier trial testimony in 1999 of the
1994 meeting in New York, when he said who was in attendance but
did not list Cunningham. Cunningham did not learn about this
testimony until after his conviction in this case. He moved for a
new trial, which was denied, apparently without an evidentiary
hearing. That denial of a new trial is an issue presented on
appeal. The denial was apparently based on the theory that a
defendant is obligated to secure the earlier testimony of all the
witnesses in a massive conspiracy trial once they are listed as
prosecution witnesses. The record is bare of needed facts,
including whether the government ever indicated which of its
witnesses would testify against which defendants and whether
Martinez had made prior witness statements consistent with his 1999
testimony about the New York meeting but inconsistent with his 2001
testimony.
Even without considering this claim, we would find that the
error as to Cunningham was not harmless. But this adds to our
sense of unease about the verdict.
-41-
Rodriguez provides no discussion of this supposedly speculative
testimony in his brief, and so has waived the argument. See Grella
v. Salem Five Cent Sav. Bank, 42 F.3d 26, 36 (1st Cir. 1994).
Segui-Rodriguez and Casas also contend that the district
court improperly admitted several hearsay statements; only some of
these statements implicate any hearsay issue. These include
Martinez's testimony that Israel Perez-Delgado asked him to pick up
cocaine in Florida and later told him that Segui-Rodriguez was
almost caught by authorities at the Puerto Rico airport; Martinez's
description of an incident in which Rasta told him that a suitcase
of cocaine had been lost; and Morales's testimony about drug
shipments that other mules had told her about. Finally, Segui-
Rodriguez argues that a drug ledger that was admitted in evidence
was hearsay. The drug ledger was a pad of paper on which Martinez
had kept track of the money and cocaine that the organization
brought to New York. Martinez testified about several specific
entries recorded in the ledger, including one that indicated Segui-
Rodriguez was paid $500.
Admitting these statements was error, argue Segui-
Rodriguez and Casas, because the district court did not make any
Petrozziello ruling. Under United States v. Petrozziello, 548 F.2d
20 (1st Cir. 1977), the trial court must conclude that "it is more
likely than not that the declarant and the defendant were members
of a conspiracy when the hearsay statement was made, and that the
-42-
statement was in furtherance of the conspiracy" before it admits
hearsay pursuant to Fed. R. Evid. 801(d)(2)(E). Id. at 23.
Because none of the defendants objected to any of the
alleged hearsay statements or requested a Petrozziello
determination, review is for plain error. See United States v.
Tom, 330 F.3d 83, 93 (1st Cir. 2003); United States v. Woods, 210
F.3d 70, 78 (1st Cir. 2000).
There was no plain error in the admission of any of the
testimony that Segui-Rodriguez cites. With the exception of the
drug ledger, the government presumably introduced in evidence the
challenged statements under the theory that they were admissible
non-hearsay pursuant to the co-conspirator exception in Fed. R.
Evid. 801(d)(2)(E). See id. (statements made "by a coconspirator
of a party during the course and in furtherance of the conspiracy"
are not hearsay). If Segui-Rodriguez or Casas wanted to argue this
point, they should have done so at trial; it was certainly not
plain error to admit the challenged statements under the
government's uncontested theory that they were admissions by co-
conspirators.
It was also not plain error for the district court to
admit the drug ledger. If a ledger manifestly contains drug
records, it is not hearsay if it is admitted in evidence merely for
the purpose of showing the existence of a drug conspiracy. See
United States v. Alosa, 14 F.3d 693, 696 (1st Cir. 1994). That
-43-
inference does not depend on the truth of the matters asserted in
the ledger; even if the amounts of drugs and cocaine recorded in
the leger are completely inaccurate, the ledger would still be
probative of the existence of a drug conspiracy. See id. If, by
contrast, the information in the ledger was admitted for the
purpose of showing that Segui-Rodriguez was at one point owed $500
for his participation in the conspiracy, then the testimony would
be hearsay. See id. Here, the court did not give the jury a
limiting instruction on the evidentiary purposes for which the
ledger could be used. But the failure to give a limiting
instruction that was not requested by the parties certainly does
not constitute plain error here. See United States v. Malik, 928
F.2d 17, 23 (1st Cir. 1991).
f. Alleged Error in Testimony About Homicides
(Segui-Rodriguez)
Segui-Rodriguez argues that the district court failed to
enforce its own ruling forbidding any reference at trial to two
murders involving the organization. The only specific example of
this failure that Segui-Rodriguez identifies is the trial judge's
statement to the jury that the government, in exchange for witness
Thomas Martinez's cooperation, agreed not to prosecute him for two
murders. This statement resolved a conflict between the parties;
while the defendants wanted to impeach Martinez with his plea
agreement, they did not want to open the door to the government's
-44-
introduction of any testimony about the murders. As a compromise,
the prosecution suggested that it would not introduce any evidence
about the murders if the court, rather than the defendants,
informed the jury about the government's plea agreement with
Martinez. The court then asked each party whether this arrangement
was acceptable. Counsel for Segui-Rodriguez indicated his
approval.
Segui-Rodriguez specifically agreed to the court's
statement at trial, and that ends the matter. See Freeman v.
Package Mach. Co., 865 F.2d 1331, 1338 (1st Cir. 1988) ("the
importance of a contemporaneous objection is at its zenith" for
Rule 403 objections in view of the "balancing calculus which that
rule demands"). Any objection was waived.
2. Presence of DEA Agent Stoothoff During Opening
Arguments and Introduction of Defendants
(Segui-Rodriguez)
At the beginning of the trial, the court introduced each
of the defendants to the jury. During that time, Agent Stoothoff,
who would testify as the first witness for the prosecution, was
seated in the courtroom. Segui-Rodriguez, who did not object at
the time, claims on appeal that it was error for the district court
not to order, sua sponte, that Agent Stoothoff be sequestered prior
to his testimony. As a result of this failure, according to Segui-
Rodriguez, Agent Stoothoff's identification of Segui-Rodriguez as
-45-
the driver of the black TransAm at the Puerto Rico airport was
indelibly tainted.
Because no objection was made, review is for plain error.
See Ramirez-Burgos v. United States, 313 F.3d 23, 28-29 (1st Cir.
2002). Absent a request from counsel, the district court enjoys
broad discretion in determining whether or not to sequester
witnesses before their testimony. See United States v. De Jongh,
937 F.2d 1, 3 (1st Cir. 1991). Here, any prejudice to Segui-
Rodriguez from Agent Stoothoff's presence during the defendants'
introductions was minimal, at best; Agent Stoothoff saw Segui-
Rodriguez at the airport and, in any case, was familiar with Segui-
Rodriguez's appearance as a result of being involved with the
investigation for a number of years. Segui-Rodriguez presents no
reason to doubt this. Moreover, even when defendants do request
that a witness be sequestered pursuant to Fed. R. Evid. 615,
government counsel is permitted "to have an investigative agent at
counsel table throughout the trial although the agent is or may be
a witness." Fed. R. Evid. 615 advisory committee's note; see also
United States v. Lussier, 929 F.2d 25, 30 (1st Cir. 1991). There
was no plain error.
C. Post-Trial Claims
1. Sufficiency of the Evidence
(Casas and Segui-Rodriguez)
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Casas and Segui-Rodriguez each challenge the sufficiency
of the evidence presented at trial. In addressing whether there
was sufficient evidence to support a guilty verdict, "the relevant
question is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt." United States v. Henderson, 320 F.3d 92, 102 (1st Cir.
2003) (quoting United States v. Woodward, 149 F.3d 46, 56 (1st Cir.
1998)). We draw all reasonable evidentiary inferences in harmony
with the verdict and resolve all issues of credibility in the light
most favorable to the government. United States v. Taylor, 54 F.3d
967, 974 (1st Cir. 1995). The elements of a conspiracy charge
include "the existence of a conspiracy, the defendant's knowledge
of the conspiracy, and the defendant's voluntary participation in
the conspiracy." United States v. Gomez-Pabon, 911 F.2d 847, 852
(1st Cir. 1990). The third element, voluntary participation,
requires a showing of intent to agree to the conspiracy and intent
to effectuate the object of the conspiracy. United States v. Ruiz,
105 F.3d 1492, 1499 (1st Cir. 1997).
Casas argues that the evidence presented at trial was
insufficient to convict him because it consisted only of
uncorroborated testimony of former co-conspirators and vague,
conclusory statements by Agent Stoothoff. But even after
discounting Agent Stoothoff's inappropriate testimony, there was
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still sufficient evidence presented at trial to convict Casas.
This evidence, discussed in detail in the harmless error analysis
above, could allow a rational jury to conclude that Casas knowingly
coordinated several members of a large organization directed at
smuggling drugs into the continental United States and then selling
them in New York. The jury was entitled to credit the co-
conspirator testimony presented against Casas and to convict him on
that basis. See United States v. Soto-Beniquez, 350 F.3d 131, 174
(1st Cir. 2003); United States v. Torres-Galindo, 206 F.3d 136, 140
(1st Cir. 2000).
The evidence presented at trial was also sufficient to
allow a rational jury to find Segui-Rodriguez guilty of conspiring
to distribute narcotics.7 This evidence was outlined above in the
harmless error analysis. Segui-Rodriguez argues that, with the
exception of the evidence concerning the incident at the Puerto
Rico airport, all of the evidence presented against him at trial
was "based on vague general and second-hand accounts" of his
participation in the conspiracy. This characterization is
incorrect. In addition to the evidence tying Segui-Rodriguez to
the drugs seized at the Puerto Rico airport, the evidence included
testimony about Segui-Rodriguez transporting and providing armed
7
Segui-Rodriguez does not challenge the sufficiency of the
evidence as to the second count of the Superseding Indictment,
which charged him with aiding and abetting the possesion and
distribution of approximately 81 kilograms of cocaine based on his
involvement in the incident at the Puerto Rico airport.
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guard for drug shipments to Carlos Perez-Delgado's house and to
Israel Perez-Delgado's apartment in New York. The testimony also
included specific testimony about Segui-Rodriguez packaging drugs,
transporting mules to the airport, and attending meetings to
discuss future drug shipments. This evidence was sufficient to
allow a rational jury to convict Segui-Rodriguez.
2. Sentencing
a. Casas
In sentencing Casas, the district court determined that
the base offense level was 38 because the conspiracy for which he
was convicted involved over 150 kilograms of cocaine. See U.S.S.G.
§ 2D1.1. It then applied a two-level enhancement for possession of
a dangerous weapon, a four-level enhancement for leadership role,
and a two-level enhancement for violating a position of trust,
arriving at a total offense level of 46. After reducing this
offense level to 43, the maximum under the sentencing guidelines,
the court sentenced Casas to life in prison. The sentencing judge
was not the same judge who conducted Casas's trial.
Casas first argues that his sentence violated the rule of
Apprendi v. New Jersey, 530 U.S. 466 (2000), because the jury did
not determine the drug quantity distributed by the conspiracy. See
United States v. Perez-Ruiz, No. 02-1466, 2003 U.S. App. LEXIS
25889, at *29 (1st Cir. Dec. 19, 2003). He also argues Apprendi
error because the jury made no findings with regard to the
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possession of a firearm in the conspiracy, Casas's leadership role
in the conspiracy, or his abuse of a position of trust. These
arguments are without merit. Contrary to Casas's assertion, the
jury did make a specific drug quantity determination; the jury
convicted Casas using a special verdict form on which it found that
the conspiracy distributed 9,445 kilograms of cocaine. See id. at
*31 ("The jury's findings would be readily ascertainable if the
court had required it to complete and return a special verdict
form.").
As to the sentencing enhancements for firearms
possession, leadership role, and abuse of a position of trust,
Apprendi does not require that the jury make any determinations on
these questions; the statutory maximum for Casas was life
imprisonment. See 21 U.S.C. §§ 841(b)(1)(A), 846 (conspiracy
involving at least five kilograms of cocaine triggers a maximum
sentence of life imprisonment for all co-conspirators). The
additional enhancements do not implicate the rule of Apprendi. See
United States v. Lopez-Lopez, 282 F.3d 1, 22 (1st Cir. 2002)
("Apprendi's prohibition applies only when the disputed fact
enlarges the applicable statutory maximum and the defendant's
sentence exceeds the original maximum." (internal quotations
omitted)).
Casas separately argues that his Fifth Amendment rights
were violated when he was sentenced by a judge who did not preside
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at his trial. Casas recognizes that Fed. R. Crim P. 25(b) permits
any judge regularly sitting in a court to replace a trial judge who
is unavailable after a guilty verdict. He argues, however, that
the successor judge in this case was not sufficiently familiar with
the record to make the factual determinations underlying his
sentencing enhancements. As evidence of the successor judge's lack
of familiarity with the record, Casas observes that the judge was
only given the trial record four days before the sentencing
determination. Casas also notes that the successor judge failed to
correct the prosecutor's statement that Casas had asked Martinez to
protect his nephew; the testimony was actually that Casas had
sought protection for his brother-in-law.
Rule 25(b) recognizes that in certain instances a judge
who inherits a case at the post-verdict stage may not be
sufficiently familiar with the case to sentence the defendants
without conducting a new trial. Fed. R. Crim. P. 25(b)(2)(A);
United States v. Colon-Munoz, 318 F.3d 348, 355 (1st Cir. 2003).
Normally, however, such measures are not necessary because a
replacement judge is "capable of assessing the credibility of the
witnesses and the evidence at trial by a thorough review of the
record." Colon-Munoz, 318 F.3d at 355 (quoting United States v.
Bourgeois, 950 F.2d 980, 988 (5th Cir. 1992)). Successor judges
need not explicitly state their familiarity with the record. Their
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(often implicit) determinations that they are sufficiently familiar
with the record are reviewed for abuse of discretion. Id.
Casas has not established that the successor judge abused
his discretion in taking over the case without ordering a new
trial. During the sentencing hearing, the judge displayed ample
knowledge of the testimony presented at trial. Casas's arguments
to the contrary are entirely unpersuasive. The judge's silence
during the prosecutor's minor misstatement of the evidence does not
demonstrate that the judge was unaware of the error, much less that
he was not sufficiently knowledgeable about the case to render a
fair sentence.
Casas's final challenge to his sentence is that there was
insufficient evidence to support the court's enhancement of his
sentence under U.S.S.G. § 3B1.1(a). To justify this enhancement,
the government must show by a preponderance of the evidence that
the defendant was an "organizer or leader" of the criminal
activity. See United States v. Cruz, 120 F.3d 1, 3 (1st Cir.
1997). Review is for clear error. See United States v. May, 343
F.3d 1, 7 (1st Cir. 2003). Casas suggests that the government did
not meet its burden here because the evidence at trial established
that Casas was subordinate to Israel Perez-Delgado in the
organization.
This argument is unpersuasive. The mere fact that Casas
was subordinate to Israel Perez-Delgado does not establish, without
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more, that Casas was not an organizer or leader of the conspiracy.
See U.S.S.G. § 3B1.1, cmt. n.4 ("There can, of course, be more than
one person who qualifies as a leader or organizer of a criminal
association or conspiracy."). Rather, the sentencing guidelines
list multiple factors for determining whether a defendant is a
leader or organizer. United States v. Robbio, 186 F.3d 37, 45 (1st
Cir. 1999).8
The district court did not commit clear error in finding
that Casas was an organizer or leader of the conspiracy. Numerous
witnesses testified that Casas was the leader of the group in
Miami. The evidence indicated that Casas recruited Bryan Francis
and Rasta to assist in smuggling cocaine past customs officials.
He coordinated the efforts of both recruits, telling them where and
when to pick up the drugs and to whom it should be delivered. He
then paid them thousands of dollars for their assistance. Casas
also led several members of the organization in a coordinated
effort to purchase firearms in Miami. And when Israel Perez-
8
These include (1) whether the defendant exercised
decision-making authority; (2) the nature of his participation in
the commission of the offense; (3) the recruitment of accomplices;
(4) the claimed right to a larger share of the fruits of the crime;
(5) the degree of planning or organizing the offense; (6) the
nature and scope of the illegal activity; and (7) the degree of
control and authority exercised over others. U.S.S.G. § 3B1.1,
cmt. n.4. None of these factors is dispositive; rather, the test
is multi-faceted and requires weighing the evidence as a whole.
See United States v. Tejada-Beltran, 50 F.3d 105, 111 (1st Cir.
1995).
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Delgado was arrested, Casas sought to take control of the entire
operation.
b. Nieves
Nieves challenges the district court's imposition of a
two-level sentencing enhancement under U.S.S.G. § 2D1.1(b)(1) for
possession of a dangerous weapon. He argues that there was no
evidence that he knew or should have known that other members of
the organization possessed a weapon in connection with the
conspiracy. Because Nieves challenges the district court's
application of the guidelines to the facts, review is for clear
error. May, 343 F.3d at 7. The enhancement for possession of a
dangerous weapon requires that it was reasonably foreseeable that
a co-conspirator would possess a gun in furtherance of the criminal
activity. United States v. Mena-Robles, 4 F.3d 1026, 1036 (1st
Cir. 1993). The defendant need not have himself possessed the
weapon. See United States v. Berrios, 132 F.3d 834, 839 (1st Cir.
1998). Here, Thomas Martinez testified that Nieves helped him,
Segui-Rodriguez, and Ray Cabassa guard 675 kilograms of cocaine
that was stored at Carlos Perez-Delgado's house. The four of them
guarded the cocaine for approximately one week and Martinez
testified that both he and Segui-Rodriguez carried guns in the
process, including a small semiautomatic machine gun. It was not
clear error for the district court to credit this testimony and
conclude that, in the course of guarding cocaine with two other
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armed individuals for over a week, Nieves both knew of and could
reasonably foresee his co-conspirators' possession of firearms.
Cf. United States v. Sostre, 967 F.2d 728, 731-32 (1st Cir. 1992)
(enhancement affirmed where co-defendant physically possessed gun
and defendant assisted him in protecting drugs).
IV.
The convictions and sentences of Rafael Segui-Rodriguez,
Ralph Casas, and Feliciano Nieves are affirmed. Winston
Cunningham's conviction is vacated.
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