United States Court of Appeals
For the First Circuit
Nos. 06-1659, 07-2515
UNITED STATES OF AMERICA,
Plaintiff,
v.
LUIS DE LA CRUZ,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, Senior U.S. District Judge]
[Hon. Joseph L. Tauro, U.S. District Judge]
Before
Boudin, Chief Judge,
Selya, Senior Circuit Judge
and Stafford,* Senior District Judge.
Paul J. Haley, with whom Law Office of Paul J. Haley was on
brief, for appellant.
Jeffrey P. Singdahlsen, Attorney, U.S. Department of Justice
Criminal Division, Appellate Section, with whom Michael J.
Sullivan, United States Attorney, and Rachel E. Hershfang,
Assistant United States Attorney, were on brief, for the United
States.
February 1, 2008
* Of the Northern District of Florida, sitting by designation.
Stafford, Senior District Judge. Luis De La Cruz
("Defendant") appeals from the district court's final judgment of
conviction entered on a jury verdict of "guilty" as to two
offenses: (1) conspiracy to distribute and to possess with the
intent to distribute one kilogram or more of heroin, in violation
of 21 U.S.C. § 846 (Count One); and (2) possession with the intent
to distribute and distribution of heroin, in violation of 21 U.S.C.
§ 841(a)(1) (Count Two). Defendant also appeals the district
court's denial of his motion for new trial. We affirm.
I.
For a number of years, beginning at least in 1999 and
continuing until his arrest in 2001, Defendant—also known as
Carlos—was the leader of an organization that distributed heroin in
and around Lawrence, Massachusetts. From his suppliers, Defendant
received heroin that was compressed into pellets approximately the
size of a thumb. Called fingers, the pellets each contained eight
to twelve grams of heroin. With the help of his runners, Defendant
processed the bulk heroin and placed the resulting powder into
small baggies. Ten baggies were then grouped together—each group
of ten constituting a bundle—and placed in a plastic sandwich bag
for distribution.
Customers would typically call Defendant on his cell
phone to arrange a buy. Defendant, or one of his runners, would
later meet the customer at a specified public place, then move to
-2-
a more private place to complete the sale. On March 8, 2001, one
of Defendant's regular customers, Alison Tracy ("Tracy"), called
Defendant to arrange the purchase of 25 bundles of heroin. While
Tracy intended to use some of the heroin herself, she also intended
to sell eight of the bundles to one of her customers, Jesse Flynn
("Flynn").
As they had on prior occasions, Tracy and Flynn drove to
Lawrence to pick up the heroin. Upon arriving in Lawrence, using
Flynn's cell phone, Tracy called Defendant to get directions for
meeting. Defendant told Tracy to wait at a local Dunkin Donuts
store. From the donut store, Defendant led Tracy and Flynn to a
quiet street where he sold Tracy 25 bundles (250 baggies) of
heroin. Some of these bundles contained baggies marked with black
eagles; the remainder of the bundles contained baggies marked with
blue stars.
On that same March 8th day, Tracy also bought 25 bundles
of heroin from Richard Frias, whose street name was Miguel. The
baggies in the bundles that she purchased from Miguel were marked
with red beetles and blue dolphins. From the total bundles that
she bought that day, Tracy sold Flynn eight bundles: four
bundles—marked with blue stars and black eagles—that came from
Defendant, and four bundles—marked with blue dolphins—that came
from Miguel.
On March 9, 2001, Bryan Wallace ("Wallace"), one of
-3-
Flynn's childhood friends, asked Flynn for some heroin. Flynn
initially refused to sell to Wallace but soon after relented,
agreeing to meet Wallace that evening at a restaurant in New
Hampshire. After eating dinner, Flynn sold Wallace two bundles of
heroin, one bundle containing baggies marked with blue stars and
one bundle containing baggies marked with black eagles.
Wallace's girlfriend, Shay Kelleher ("Kelleher"), stopped
at Wallace's home to visit later that night. Kelleher found
Wallace looking pale and sluggish, with red eyes and constricted
pupils. Although Wallace appeared "unmistakably different" to
Kelleher, he did not appear to be in danger. She had previously
seen him high on various drugs, and he had never before suffered
any adverse consequences from his drug usage. Wallace showed
Kelleher some baggies that he said contained heroin bought from a
friend. Kelleher described the baggies as being marked with small
birds resembling the Harley-Davidson black eagle logo.
The next evening, when Kelleher again stopped by
Wallace's home, she found Wallace's dead body. Blood had pooled in
his legs, and a blood-tinged foam cone had formed over his mouth.
When the police arrived, they found eleven torn and empty
baggies—some marked with black eagles and some with blue
stars—inside a garbage can, and seven unopened baggies—marked with
blue stars—on the kitchenette counter. The baggies tested positive
for heroin, as did the drug paraphernalia that was found in
-4-
Wallace's room.
On the evening that Wallace's body was found, Wallace's
mother told investigators that her son had received a telephone
call from his friend, Jesse Flynn, the previous afternoon.
Arrested on March 20, 2001, Flynn told investigators that he bought
heroin on March 8 from Tracy and that he sold some of that heroin
to Wallace on March 9.
On March 21, based on the information provided by Flynn,
investigators interviewed Tracy, who was then in custody on a
parole violation. Admitting that she sold heroin to Flynn, Tracy
agreed to place controlled calls to her suppliers, Carlos and
Miguel. Tracy's cooperation led investigators the next day, March
22, to (1) interview and then arrest Defendant, or Carlos; and (2)
arrest Roberto Herrera ("Herrera"), one of Miguel's runners, as he
was attempting to deliver heroin to Tracy. When arrested, Herrera
had in his possession ten bundles of heroin, some marked with black
eagles and some with blue stars, the same markings that appeared on
the baggies sold by Defendant to Tracy on March 8.
Defendant was initially charged—by indictment dated April
4, 2001—with one count of conspiracy to possess with the intent to
distribute heroin, in violation of 21 U.S.C. § 846. There was no
allegation in the initial indictment that the conspiracy resulted
in the death of Bryan Wallace.
A three-count superseding indictment was returned on
-5-
October 24, 2002. Count One again alleged a section 846
conspiracy. In Counts Two and Three, it was alleged that, on or
about March 8 and March 9, 2001, respectively, Defendant possessed
with the intent to distribute, and did distribute, a mixture or
substance containing a detectable amount of heroin, in violation of
21 U.S.C. § 841, or aided and abetted the same in violation of 18
U.S.C. § 2. In all three counts, it was alleged that the offense
resulted in the death of Bryan Wallace.
A second superseding indictment was returned on December
8, 2004. The second superseding indictment contained two counts:
a section 846 conspiracy count and a section 841 substantive
offense count. In both counts, it was alleged that the offense
resulted in the death of Bryan Wallace. In addition, notice was
given of three additional factors: (1) that Defendant was
accountable for at least 1 kilogram, but not more than 3 kilograms,
of heroin; (2) that Defendant was a manager and supervisor of a
criminal activity that involved at least five participants; and (3)
that death and serious bodily injury resulted from the use of the
heroin distributed by Defendant.
On January 5, 2005, Defendant filed an emergency motion
to go to trial on the first superseding indictment. The emergency
motion was filed the day he was to be arraigned on the second
superseding indictment, which was just four days before trial on
the first superseding indictment was scheduled to begin. Defendant
-6-
argued that he should be permitted to go to trial on the first,
rather than the second, superseding indictment because he was then
ready to go to trial on the first superseding indictment and
because he would be "severely prejudiced" by the government's delay
in adding the "expansive charges" contained in the second
superseding indictment. While he noted in his motion that he had
been detained for close to four years without a trial, Defendant
did not expressly move to dismiss the second superseding indictment
on speedy trial grounds. Indeed, he made no mention whatsoever of
the Speedy Trial Act in his motion. To the contrary, Defendant
made it clear that he was not then moving to dismiss the second
superseding indictment, expressly stating that he "reserved[d] his
right to bring a motion to dismiss the second Superseding
Indictment."
The district court denied Defendant's emergency motion,
stating: "Denied for failure to show that it is an appropriate
order for this court to make that asserted facts alleged in the
Second Superseding indictment should be disregarded in the fair
disposition of this case." Defendant did not thereafter file a
motion to dismiss the second superseding indictment on speedy trial
grounds.
A two-week jury trial began on April 25, 2005. The jury
found Defendant guilty of the two offenses, or counts, charged in
the second superseding indictment. As to the conspiracy count, the
-7-
jury found, beyond a reasonable doubt, that the conspiracy involved
1 kilogram or more of a mixture or substance containing a
detectable amount of heroin, that the ingestion of heroin was a
but-for cause of Bryan Wallace's death, that the heroin causing
Wallace's death was distributed as part of the charged conspiracy,
and that Defendant himself was in the chain of distribution for the
heroin causing Wallace's death. As to the substantive count, the
jury found, beyond a reasonable doubt, that ingestion of heroin was
a but-for cause of Wallace's death, and that the heroin causing
Wallace's death passed through Defendant's hands.
On May 12, 2005, the day he was convicted, Defendant
filed a two-sentence motion for new trial, requesting—in his
motion—additional time to file a memorandum of points and
authorities in support of the motion. The district court granted
Defendant's oral request that a hearing on his motion for new trial
be held "at a later time" but did not set a specific time for that
hearing or otherwise address Defendant's motion for new trial.
On February 14, 2006, the district court sentenced
Defendant to twenty years in prison, with five years of supervised
release to follow. Twenty years is the mandatory minimum sentence
required under 21 U.S.C. § 841(b)(1)(A) where a death results.
Defendant filed his first notice of appeal on March 10, 2006,
raising seven issues. Four months later, Defendant filed (in the
district court) a memorandum of law in support of his motion for a
-8-
new trial, raising eight grounds for relief—the seven claims raised
in his appeal plus a claim that the verdicts were against the
weight of the evidence.
After Defendant's appeal was fully briefed and argued,
this court—whilst retaining appellate jurisdiction—ordered a
limited remand to permit the district court1 to consider
Defendant's motion for new trial, a motion that "by mischance" had
never been resolved. The district court ordered further briefing
and held a hearing on the motion on June 27, 2007. By order
entered August 20, 2007, the district court denied Defendant's
motion for new trial, finding no merit to any of Defendant's eight
grounds for relief. The case was thereafter returned to this court
for supplemental briefing and resolution.
In his supplemental brief on appeal, Defendant argued—for
the first time on appeal—that the verdicts were against the weight
of the evidence. He also added argument regarding one of the seven
issues raised in his initial brief on appeal. He otherwise relied
on the arguments raised in his initial brief.
Defendant also filed a separate appeal from the district
court’s denial of his motion for new trial. That appeal—docketed
as No. 07-2515—was consolidated with Defendant’s initial appeal,
1
Senior United States District Judge Robert E. Keeton
presided over the trial. Due to Judge Keeton's retirement, United
States District Judge Joseph L. Tauro presided over the case on
remand.
-9-
No. 06-1659. Although a briefing schedule was established in the
second appeal, Defendant advised the court that he did not intend
to file an opening brief in that appeal but would, instead, rely on
the briefs filed in his first appeal. When the government advised
the court that it likewise would rely on the briefs filed in the
first appeal, appeal No. 07-2515 was submitted to the court for
resolution. The two appeals are now ripe for resolution.
II.
Defendant raises eight issues on appeal, all of which
lack merit.
A.
Defendant first claims that his speedy trial rights were
violated when the district court permitted the government to
proceed to trial on the second superseding indictment. On remand,
the district court rejected this claim, finding that Defendant
waived his speedy trial claim when he failed to move for dismissal
of the second superseding indictment on speedy trial grounds prior
to trial.
The Speedy Trial Act, 18 U.S.C. § 3162(a)(2),
specifically provides that "[f]ailure of the defendant to move for
dismissal prior to trial . . . shall constitute a waiver of the
right to dismissal under this section." See United States v.
Gomez, 67 F.3d 1515, 1520 (1st Cir. 1995) (explaining that "just as
the [Speedy Trial] Act provides a remedy for violation of its
-10-
speedy trial mandate, so too it unequivocally provides that the
failure of a defendant to move for dismissal prior to trial
constitutes a waiver of any right to that remedy").
Here, the record clearly reveals that Defendant did not
move to dismiss the second superseding indictment prior to trial.
While Defendant complained about the government's delay in filing
the second superseding indictment, he did so in an emergency motion
to go to trial on the first superseding indictment, not in a motion
to dismiss the second superseding indictment. In that emergency
motion, Defendant expressly reserved his right to file—in the
future—a motion to dismiss the second superseding indictment.
After his emergency motion was denied, however, Defendant failed to
exercise the right that he expressly reserved, namely, the right to
file a motion to dismiss the second superseding indictment. As a
consequence, he cannot now obtain relief on speedy trial grounds.
B.
Defendant next contends that the district court abused
its discretion when it permitted the government's chemist, Stacy
Turner ("Turner"), to testify about the purity of the heroin found
in Wallace's home the night his body was discovered. Defendant
maintains, and the government concedes, that Defendant was not
specifically informed prior to trial that Turner would so testify.
Instead, Defendant was informed generally that Turner would testify
about the tests she performed and the conclusions she drew with
-11-
regard to the drugs and drug residue analyzed in the case.2
Finding no merit to this claim, the district court on
remand explained that Defendant did not and could not demonstrate
that he suffered actual prejudice from the inadequate disclosure,
mostly because the challenged testimony was cumulative and because
there was ample evidence, without Turner’s testimony, that firmly
connected Defendant to the death of Wallace. We agree.
On direct examination by the government, soon after
Turner testified that the heroin seized from Herrara on March 22
tested thirty-seven percent pure, Turner was asked about the purity
of the heroin found in Wallace's room on March 10:
Q: And based on the smallness of the sample of
the heroin and your ability to extract it
directly, what, if anything, did you conclude
about its purity?
A: It's of a higher purity.
Q: And why do you say that? How are you able to
say that?
A: Well, this exhibit, looking at it under the
microscope, first of all, when I do the
microcrystal test, when you put acid on it, if
the substance completely dissolves into it,
you can likely say that there's no cut present
because most things won't dissolve, most cuts
won't dissolve. Then when looking at the
crystals, the heroin crystals that form,
they're very clear. If there was something
else present, there would be distorted
2
While the government's pre-trial disclosure included
laboratory reports that identified the tests that were run and
their results, those reports did not include Turner's conclusions
about the purity of the heroin found in Wallace's home.
-12-
crystals there. And also, with the IR itself,
a direct sample with nothing else in it
indicates a higher purity substance.
Q: And when you say a higher purity substance,
what do you mean?
A: In my experience, it tends to be 80 percent or
higher.
At this point in Turner's testimony, Defendant objected and moved
to strike. The district court overruled the objection and denied
the motion to strike without discussion.
Following cross and redirect examination of Turner,
Defendant renewed his objection and motion to strike. Explaining
his objection to the court at side bar, Defendant stated that he
expected the government to use Turner's testimony to argue that the
heroin seized from Wallace's home was different from the heroin
seized from Herrara. The government indicated that it would make
no such argument. The district court again overruled the objection
and denied the motion to strike, suggesting that it would be better
not to emphasize the testimony by again bringing it to the jury's
attention.
Defendant then said to the court: "I'm just thinking
whether or not I should ask for a continuance on this particular
matter. . . . May I preserve my right to recall her?" The district
court responded that it would not grant Defendant a blanket right
to recall Turner but would hear from the parties if Defendant
should, in fact, decide to recall her.
-13-
With the jury in recess and the government having rested,
the district court sua sponte returned to the issue of a
continuance. "I think you asked for a continuance. I think I've
indicated that I would not allow that. Of course, if you want to
bring it up again, you may do so." Id. at 94. Defendant
responded: "I may want to confer with a forensic toxicologist
that's been working with me about that purity matter . . . and I
would just ask for the afternoon so I could go back to my office
and call [the toxicologist]." Id. at 94-95. Denying Defendant's
request for an afternoon's break, the court instead recessed for an
hour-and-twenty-minute lunch break.
At the conclusion of the break, Defendant moved for a
mistrial based on the government's failure to disclose that Turner
would be testifying about the purity of the heroin found with
Wallace. He argued that Turner's purity testimony had "ship-
wrecked" his defense. He explained that his theory of defense was
based on the similarities in the baggie markings used by Defendant
and Miguel. He maintained that because Defendant and Miguel
both—at times—distributed baggies marked with blue stars and black
eagles, the jury could have concluded that Miguel, and not
Defendant, supplied the heroin on which Wallace overdosed.
Defendant did not ask to recall Turner; he did not ask for more
time to consult his toxicologist; and he did not explain how his
defense would have differed had he been given pre-trial notice of
-14-
Turner's purity testimony. The district court denied Defendant's
motion for mistrial, explaining that a defense based on the
similarities between the packaging of the heroin seized in
Wallace's room on March 10 and the packaging of the heroin seized
from Herrara almost two weeks later was utterly without merit.
We review for abuse of discretion a district court's
decision on how to remedy a delayed disclosure of evidence. United
States v. Mooney, 315 F.3d 54, 64 (1st Cir. 2002). To establish an
abuse of discretion sufficient to require reversal, a defendant
must make some showing of prejudice. See, e.g., United States v.
Devin, 918 F.2d 280, 290 (1st Cir. 1993) (explaining that, in cases
of delayed disclosure, a court's principal concern must be whether,
given timely disclosure, "a more effective strategy would likely
have resulted").
Here, at trial, the district court decided that, once
Turner's testimony about purity was heard by the jury, the better
course was to say nothing more about it, as any attempt to strike
the testimony would only serve to emphasize the testimony.
Addressing Defendant's concerns about how the government might use
the testimony, the court had the government state for the record
(outside the jury's presence) that purity-related issues would not
be argued to the jury. At the conclusion of Turner's testimony,
the district court indicated that Defendant would be heard if he
wished to recall Turner. Although the district court declined to
-15-
give Defendant an entire afternoon to consider such a recall, the
district court did allow Defendant a recess of one hour and twenty
minutes to consult with his toxicologist. At the conclusion of the
recess, Defendant neither asked for more time nor complained that
he had had insufficient time to confer with his toxicologist. He
simply said that he was not prepared to call Turner. Given the
circumstances, it would be difficult to find an abuse of discretion
on the part of the district court.
We need not definitively decide that question, however.
The dispositive consideration is that Defendant has not
demonstrated that he was prejudiced by Turner's purity testimony.
In his appellate brief, Defendant suggests that the jury's verdict
was driven by Turner's purity testimony.3 The record, however,
belies any such suggestion. Consistent with its assurances to the
district court, the government did not argue to the jury that the
source of the heroin found in Wallace's room could be established
by the drug's purity. The government also did not point to the
heroin's purity to prove that heroin was the cause of Wallace's
3
In his brief, Defendant states:
There were two different sources of heroin in this case
and there was a marked difference in purity, 80% versus
37%. The inference that the government wanted drawn (and
which ultimately was drawn) was that although the
packaging from the two alleged sources looked the same,
the heroin inside the packages was of different purity
and therefore different sources.
Defendant's Br. at 10-11.
-16-
death. Instead, to prove the cause of death, the government relied
largely on the testimony of the medical examiner, who
concluded—without mentioning the matter of purity—that heroin was
the likely cause of death. The medical examiner explained that he
based his conclusion upon the totality of the evidence examined,
including the presence of heroin in Wallace's room, the drug
paraphernalia found next to his body, the foam cone seen on his
mouth by the officers at the scene, and the various physical
manifestations revealed through toxicological tests and an autopsy.
To establish the source of that heroin, the government relied on
the overwhelming evidence that Wallace was found with baggies of
heroin that could be traced to Flynn, from Flynn to Tracy, and from
Tracy to Defendant. Given the evidence and the government's
arguments, it is anything but apparent that the jury's verdict was
influenced, much less driven, by Turner's testimony about the
comparative purity of the heroin found with Wallace the night he
died and the heroin found with Herrara roughly two weeks later.
Furthermore, before she testified about purity, Turner
explained that, unlike the heroin found with Wallace, the heroin
found with Herrara was "cut" with lactose. According to Turner,
the lactose was used as a "diluent" to "bulk up the heroin." Trial
Tr. vol. 10, pt. 1, 73-74 (May 9, 2005). Defendant did not object
to the testimony about the lactose found in Herrara's heroin, and
the jury was free to consider such testimony whether or not the
-17-
district court granted Defendant's motion to strike Turner's
testimony about purity. Under the circumstances, it is difficult
to imagine how the district court's failure to strike what, in
essence, amounted to cumulative testimony could have prejudiced
Defendant.
C.
Defendant next contends that the district court abused
its discretion when it allowed the government's medical examiner to
give an expert opinion regarding the cause of Wallace's death based
on toxicological and autopsy reports that were not prepared by the
examiner. Relying on Crawford v. Washington, 541 U.S. 36 (2004),
Defendant maintains that he was denied his right of cross-
examination. Id. at 42 (holding that the Confrontation Clause
prohibits the admission of out-of-court statements that are
testimonial in nature unless the declarant is unavailable and the
defendant had a prior opportunity to cross-examine the declarant
concerning the statements).
Dr. Thomas A. Andrew, M.D. ("Dr. Andrew"), Chief Medical
Examiner for the State of New Hampshire, testified as an expert
regarding the cause of Wallace's death. Dr. Andrew did not himself
perform the autopsy on Wallace's body or conduct any toxicological
tests or investigate at the scene where Wallace's body was found.
In forming his opinion as to the cause of death, Dr. Andrew instead
relied on police reports, crime scene photographs, and autopsy and
-18-
toxicology reports, all of which were prepared by other
individuals. Dr. Andrew explained that such materials are
routinely relied on by experts in his field. Dr. Andrew also
explained that autopsies are required by law in cases involving
sudden, unexpected, or violent deaths, that autopsy reports contain
objective fact-only descriptions of the observations made by the
examining physician at the time of the autopsy, and that autopsy
reports are intended to provide a permanent record of findings
relevant to the cause of death.
Defendant objected to Dr. Andrew's testimony on
Confrontation Clause grounds. Citing Crawford, Defendant argued
that the autopsy report upon which Dr. Andrew relied constituted
testimonial evidence prepared by someone whom Defendant could not
cross-examine. The district court overruled Defendant's objection
at trial, holding that Dr. Andrew's testimony was not based on
testimonial hearsay but was, instead, properly based on his review
of a record, the preparation of which was required by law. For the
same reasons, the district court on remand found that Defendant’s
Crawford argument did not entitle him to a new trial.
We review de novo a claim that evidence has been admitted
in violation of the Confrontation Clause. United States v. Walter,
434 F.3d 30, 33 (1st Cir. 2006); United States v. Brito, 427 F.3d
53, 59 (1st Cir. 2005).
In his appellate brief, Defendant's discussion of his
-19-
Confrontation Clause claim is perfunctory at best.4 In essence, he
argues that "[b]y allowing the medical examiner to testify
concerning reports which he had no part in testing or producing,
the defendant was denied his right of confrontation." Defendant's
Br. at 13. Other than citing Crawford for the general proposition
that the introduction of testimonial hearsay runs afoul of the
Confrontation Clause, Defendant cites no cases to support his
argument. We reject Defendant's argument, in part because his
claim is "unaccompanied by some effort at developed argumentation."
Casas, 425 F.3d at 30 n.2.
In addition, we reject Defendant's argument on the
merits. An autopsy report is made in the ordinary course of
business by a medical examiner who is required by law to
memorialize what he or she saw and did during an autopsy. An
autopsy report thus involves, in principal part, a careful and
contemporaneous reporting of a series of steps taken and facts
found by a medical examiner during an autopsy. Such a report is,
we conclude, in the nature of a business record, and business
records are expressly excluded from the reach of Crawford. See
Crawford, 541 U.S. at 56 (noting that business records are not
4
See Torres-Arroyo v. Rullan, 436 F.3d 1, 7 (1st Cir. 2006)
(noting that "[g]auzy generalizations are manifestly insufficient
to preserve an issue for appellate review"); United States v.
Casas, 425 F.3d 23, 30 n.2 (1st Cir. 2005)(noting that "issues
adverted to in a perfunctory manner, unaccompanied by some effort
at developed argumentation, are deemed waived") (internal quotation
marks and citation omitted).
-20-
testimonial by nature); see also id. at 76 (Rehnquist, C.J.,
concurring) (praising the Court's exclusion of business records
from the definition of testimonial evidence falling within the
ambit of the Confrontation Clause); United States v. Feliz, 467
F.3d 227, 236-37 (2d Cir. 2006) (noting that autopsy reports are
kept in the course of a regularly conducted business activity and
are nontestimonial under Crawford); Manocchio v. Moran, 919 F.2d
770, 778 (1st Cir. 1990) (recognizing that autopsy reports are
business records akin to medical records, prepared routinely and
contemporaneously according to "statutorily regularized procedures
and established medical standards" and "in a laboratory environment
by trained individuals with specialized qualifications").
In People v. Durio, 794 N.Y.S.2d 863 (N.Y. Sup. Ct.
2005), the court held that the admission of both the routine
findings recited in an autopsy report as well as the accompanying
testimony of an assistant medical examiner who neither conducted
the autopsy nor prepared the report was proper under Crawford.
Concluding that the autopsy report was a nontestimonial business
record, the Durio court described the practical implications that
would follow from treating autopsy reports as inadmissible
testimonial hearsay under Crawford:
Years may pass between the performance of the
autopsy and the apprehension of the
perpetrator. This passage of time can easily
lead to the unavailability of the examiner who
prepared the autopsy report. Moreover,
medical examiners who regularly perform
-21-
hundreds of autopsies are unlikely to have any
independent recollection of the autopsy at
issue in a particular case and in testifying
invariably rely entirely on the autopsy
report. Unlike other forensic tests, an
autopsy cannot be replicated by another
pathologist. Certainly it would be against
society's interests to permit the
unavailability of the medical examiner who
prepared the report to preclude the
prosecution of a homicide case.
Id. at 869.
Like the court in Durio, we are unpersuaded that a
medical examiner is precluded under Crawford from either (1)
testifying about the facts contained in an autopsy report prepared
by another, or (2) expressing an opinion about the cause of death
based on factual reports—particularly an autopsy report—prepared by
another.5 Because, in this case, we find that Dr. Andrew's
testimony was proper under Crawford, we find no error in the
district court's decisions (at trial and on remand) regarding Dr.
Andrew’s opinion as to the cause of Wallace's death.
D.
Defendant argues that the district court on remand abused
its discretion when it denied his motion for new trial based on
5
We add that, as a matter of expert opinion testimony, a
physician's reliance on reports prepared by other medical
professionals is "plainly justified in light of the custom and
practice of the medical profession. Doctors routinely rely on
observations reported by other doctors, and it is unrealistic to
expect a physician, as a condition precedent to offering opinion
testimony . . . , to have performed every test, procedure, and
examination himself." Crowe v. Marchand, 506 F.3d 13, 17-18 (1st
Cir. 2007) (internal citations omitted).
-22-
newly discovered evidence. That evidence, a post-conviction letter
written by cooperating witness Elison Anziani to a fellow inmate,
purportedly shows that Anziani lied when he testified against
Defendant at trial. Defendant first submitted the letter, in
Spanish, to the district court when he filed his post-sentencing
memorandum in support of his motion for new trial. The government
submitted an English translation of the letter when the case was
returned to the district court on remand.
To obtain a new trial based on newly discovered evidence,
a defendant must show that:
(1) the evidence was unknown or unavailable to
the defendant at the time of trial; (2)
failure to learn of the evidence was not due
to lack of diligence by the defendant; (3) the
evidence is material, and not merely
cumulative or impeaching; and (4) [the
evidence] will probably result in an acquittal
upon retrial of the defendant.
United States v. Rodriguez-Marrero, 390 F.3d 1, 14 (1st Cir. 2004)
(quoting United States v. Wright, 625 F.2d 1017, 1019 (1st Cir.
1980)). A motion for new trial must be denied if the defendant
fails to meet any one of these four factors. United States v.
Gonzalez-Gonzalez, 258 F.3d 16, 20 (1st Cir. 2001). "For newly
discovered evidence to warrant a retrial in a criminal case, the
existence of the required probability of reversal must be gauged by
an objectively reasonable appraisal of the record as a whole, not
on the basis of wishful thinking, rank conjecture, or unsupportable
surmise." United States v. George, 448 F.3d 96, 101 (1st Cir.
-23-
2006) (quoting United States v. Natanel, 938 F.2d 302, 314 (1st
Cir. 1991)). We review a district court's denial of a motion for
a new trial for manifest abuse of discretion.
United States v. Colon-Munoz, 318 F.3d 348, 357 (1st Cir. 2003).
While explaining that it was unable to decipher the true
meaning of Anziani's "rambling, incomprehensible, and ambiguous"
letter, the district court denied Defendant's motion for new trial
based on newly discovered evidence, finding that Defendant failed
to satisfy the third and fourth prongs of the Wright newly-
discovered-evidence test. According to the district court,
Defendant failed to demonstrate either that the evidence contained
within the letter was material or that the evidence—if presented
upon retrial—would probably result in an acquittal. As noted by
the district court, the government well established through
witnesses other than Anziani that Defendant conspired to distribute
and did, in fact, distribute heroin, that he sold heroin to Alison
Tracy on March 8, 2001, and that the heroin he sold to Tracy on
March 8 was distributed to Wallace through Flynn, resulting in
Wallace's death on March 10.
Like the district court, we find that Defendant has
utterly failed to demonstrate that he is entitled to a new trial
based on Anziani's post-conviction letter. While Defendant
characterizes the letter as an admission by Anziani that Anziani
lied during trial, that characterization is questionable to say the
-24-
least. In fact, as suggested by the government, Anziani seems to
be saying in his letter that he did not lie. To be sure, he states
that if the records, or "papers" where "it [wa]s written down,"
failed to support his calculations as to drug quantities (40-50
grams a week) and times (12 weeks in 1999 and 18 weeks in 2001),
then perhaps it could be said that he "lied." Anziani goes on to
state, however:
Those were the things that I stated at trial.
Now, if it wasn't that way, then I'm crazy.
Look, in this thing, it's not about me taking
off of me and putting it on the other because
I haven't taken off of anyone nor I've taken
off of me. The one that is guilty of
everything is Luis himself. . . . Look, Luis
didn't lose the trial because of me, he lost
because he was guilty.
Government's Suppl. Resp., Addendum at 15.
Even assuming, for the sake of argument, that Defendant's
characterization of Anziani's letter as an admission of
"fabricated" testimony is accurate, Defendant has neither specified
what testimony Anziani recanted nor explained how Anziani's
purported recantation would affect a retrial. It is Defendant's
burden to demonstrate every one of the four Wright factors, and
such burden he has failed to meet.
Furthermore, even if the "papers" showed that Anziani's
testimony was not precisely accurate, it is clear that Anziani's
letter in no way exculpated Defendant. At most, Anziani appears to
admit that his testimony, based on his remembrance of particulars,
-25-
might be at odds with the written records. Such admission,
however, amounts to impeachment evidence cumulative to the
extensive testimony provided on cross-examination regarding
Anziani's plea agreement, his recollection of events, and his
motivations for testifying. It does not provide a basis for new
trial. Wright,625 F.2d at 1019 (stating that new evidence must be
"not merely cumulative or impeaching").
Perhaps most importantly, the record convinces us that
the government's case against Defendant was so strong that even if
the jury discredited Anziani's testimony in its entirety, Defendant
would still have been convicted. The district court thus correctly
found that Defendant's newly discovered evidence did not warrant a
new trial.
E.
Defendant contends that the district court erred by
failing to instruct the jury on the issue of foreseeability.
Specifically, Defendant maintains that the jury should have been
instructed that it had to find that Wallace's death and the
distribution of the charged drug quantities were foreseeable to
Defendant. The district court on remand found no merit to this
claim, finding that foreseeability is not an element of the jury's
findings on either drug quantity or death resulting.
We review de novo a claim that the district court's
instructions omitted a required element of the charged offense.
-26-
United States v. Woodward, 149 F.3d 46, 68-69 (1st Cir. 1998).
Count One of the second superseding indictment charged
Defendant with conspiring to distribute or to possess with the
intent to distribute one kilogram or more of a substance containing
heroin. The district court instructed the jury that, in order to
find Defendant guilty of Count One, it had to find, beyond a
reasonable doubt, that the charged conspiracy existed, that
Defendant knowingly participated in that conspiracy, and that the
conspiracy as a whole involved one kilogram or more of a substance
containing heroin. The district court refused to instruct the jury
that it also had to find, beyond a reasonable doubt, that the
charged drug quantities were attributable to, or foreseen by,
Defendant. Such refusal, we conclude, was not erroneous. See
United States v. González-Vélez, 466 F.3d 27, 35-36 (1st Cir. 2006)
(upholding the district court's instructions and verdict form in a
drug conspiracy case where the jury was instructed to find the
amount of drugs involved in the conspiracy as a whole, not the
individualized quantity attributable to or foreseen by a particular
defendant).6
In González-Vélez, the jury was instructed that, to find
a defendant guilty of a conspiracy to distribute a controlled
substance, it must find, beyond a reasonable doubt: "First that the
6
Because the defendants in González-Vélez failed to object to
the jury instructions at trial, the court reviewed the instructions
for plain error. The verdict form was reviewed de novo.
-27-
agreement specified in the indictment, and not some other agreement
or agreements, existed between at least two people to distribute
controlled substances; and Second, that the defendants knowingly
and willfully joined in that agreement." González-Vélez, 466 F.3d
at 33. On the verdict form, after each defendant's culpability was
determined individually given the above instruction, the jury was
asked to find the conspiracy-wide drug quantity, a finding needed
for sentencing purposes.7 On appeal, the defendants argued that
the jury instructions and verdict form should have required the
jury to make individualized findings as to the amount of drugs
attributable to each defendant. This court rejected the
defendants' argument, explaining that (1) the quantity of drugs is
not an element of a section 846 conspiracy; (2) the drug quantity
for the conspiracy as a whole is the relevant drug quantity for
purposes of establishing the maximum statutory penalty available to
the district court at sentencing for a defendant convicted of a
section 846 conspiracy; and (3) an individualized finding by the
jury as to the amount of drugs attributable to, or foreseen by, a
specific defendant is not required. This court thus upheld the
district court's instructions and verdict form against the
defendants' claim of error.
7
See United States v. Irizarry, 404 F.3d 497, 504 (1st Cir.
2005) (explaining that, in a drug conspiracy case, the jury sets
the maximum penalty available to the district court at sentencing
by determining the amount of drugs attributable to the conspiracy
as a whole).
-28-
Here, consistent with the lessons taught in González-
Vélez, the jury was correctly instructed that it should determine,
beyond a reasonable doubt, whether the conspiracy involved one
kilogram or more of a substance containing heroin. The jury in
fact found that the conspiracy involved one kilogram or more of
heroin, and that finding triggered a statutory maximum sentence of
life in prison, a maximum that was not exceeded by the district
court at Defendant's sentencing. Defendant's claim of error—that
the jury should have been instructed to make an individualized
finding as to the drug amounts attributable to or foreseeable by
Defendant—is without merit.
In Counts One and Two of the second superseding
indictment, Defendant was charged with committing offenses that
resulted in Wallace's death. As to the death-resulting issue, the
district court instructed the jury that it must find, beyond a
reasonable doubt, that Wallace ingested heroin, that this heroin
was a "but for" cause of Wallace's death, and that this heroin was
distributed as part of the conspiracy charged in Count One and
passed through Defendant's hands as part of the distribution
charged in Count Two. The district court refused to give
Defendant's proffered instruction—namely, that "[t]he government
must prove beyond a reasonable doubt that the heroin distributed by
the conspiracy that caused the death of Bryan Wallace was
attributable to or foreseeable by the defendant." Trial Tr. Vol.
-29-
11, Pt. 2, 148 (May 10, 2005).
A defendant convicted of either conspiring to distribute
or distributing one or more kilograms of heroin faces an enhanced
penalty "if death or serious bodily injury results from the use of
such substance." 21 U.S.C. § 841(b)(1)(A). Nothing in the
language of the statute suggests that a death must be foreseeable
before the enhanced penalty provision applies. Indeed, in United
States v. Soler, 275 F.3d 146 (1st Cir. 2002), we concluded that
"when a defendant deals drugs and a user of those drugs dies as a
result, [the enhanced penalty] applies without any independent
proof that the death was a reasonably foreseeable event." Id. at
153. Other courts have similarly concluded that application of the
death-resulting enhanced penalty does not require a finding of
foreseeability. See, e.g., United States v. Houston, 406 F.3d
1121, 1125 (9th Cir. 2005) (holding that "proximate cause, at least
insofar as it requires that the death have been foreseeable, is not
a required element" of a death-resulting drug offense); United
States v. McIntosh, 236 F.3d 968, 972 (8th Cir. 2001) (holding that
the language of section 841(b)(1)(A) is "unambiguous and that
giving effect to its plain meaning prohibits us from superimposing
upon the statute a foreseeability or proximate cause requirement");
United States v. Patterson, 38 F.3d 139, 145 (4th Cir. 1994)
(concluding that "the plain language of § 841(b)(1)(C) [the
relevant language of which is identical to the language of §
-30-
841(b)(1)(A)] does not require, nor does it indicate, that prior to
applying the enhanced sentence, the district court must find that
death resulting from the use of a drug distributed by a defendant
was a reasonably foreseeable event").
That a defendant had no direct dealings with the decedent
does not change the enhancement analysis. In McIntosh, the
defendant, Steven McIntosh, pleaded guilty to a charge that he
conspired with Lenora "Jean" Cresswell and John McMillan to
manufacture methamphetamine. The three shared their
methamphetamine with others, including Jean's niece, "Amy"
Cresswell. McIntosh was unaware that Jean, Amy, and McMillan
provided methamphetamine to Jean's 14-year-old daughter, Jessica.
Jessica died after she ingested methamphetamine that Amy shared
with her. In sentencing McIntosh, the district court determined
that McIntosh was subject to the death-resulting enhancement even
though there was no proof that McIntosh either directly furnished
Jessica with methamphetamine or knew that she was being supplied
with the drug by others. On appeal, the Eighth Circuit rejected
McIntosh's argument that application of the death-resulting
enhancement was precluded because the government failed to prove
that Jessica's death was reasonably foreseeable to him. The Eighth
Circuit wrote:
The enhancement inquiry is not altered
merely because McIntosh pleaded guilty to
conspiracy to manufacture methamphetamine
(rather than to a substantive violation of §
-31-
841 itself) nor because Jessica obtained the
drug directly from someone other than
McIntosh. Section 846 provides that a
defendant convicted of conspiracy "shall be
subject to the same penalties as those
prescribed for the [underlying] offense." In
this case, the district court found that
McIntosh played a direct part in manufacturing
the drug ingested by Jessica. The underlying
offense holds those who manufacture a drug
strictly liable when death results from the
manufactured drug. Accordingly, the district
court was not required to find that Jessica's
death was reasonably foreseeable to McIntosh
before enhancing his sentence. In sum, when a
conspiracy defendant plays a direct role in
manufacturing or distributing a drug that
results in death, Congress's intent under §
846 is clear that the defendant is strictly
liable under § 841(b)(1)(A)'s enhancement
scheme.
McIntosh, 236 F.3d at 973 (footnote omitted); see also Soler, 275
F.3d at 149, 152 (finding the death-resulting enhancement
appropriate even though the defendant had no direct dealings with
the decedent).
What is required under the death-enhancing statute is
that the government prove cause-in-fact, that is, that the
decedent's death was caused in fact by his or her use of drugs that
were distributed either by the defendant himself or by others in a
conspiracy of which the defendant was a part. Here, the district
court properly instructed the jury about the required proof of
cause-in-fact, and—following the court's instructions—the jury
specifically found that Wallace died as a result of ingesting
heroin that was distributed during the course of the charged
-32-
offenses by Defendant to Wallace through Tracy and Flynn.
Defendant's claims of error based on the issue of foreseeability
are without merit.8
F.
Defendant contends that the district court erred when it
refused to give his proffered multiple conspiracies instruction.9
Such an instruction was necessitated, he suggests, because the jury
heard evidence regarding not just one but two conspiracies, one
headed by Defendant and one headed by Miguel. The district court
8
Defendant complains not only about the district court's
failure to instruct the jury on the issue of foreseeability. He
also complains about the district court's refusal to allow him to
argue foreseeability to the jury and its failure to set aside the
jury's verdict on the basis of foreseeability. Having concluded
that the district court did not err in refusing to instruct on the
issue of foreseeability, we also find that the district court did
not err in limiting Defendant's argument and in denying Defendant's
motions for judgment of acquittal on the basis of a lack of
foreseeability.
9
Defendant's proffered instruction stated, in relevant part:
When two or more people join together in a conspiracy,
each is responsible for the acts of others when those
acts are foreseeable to him and acts were in furtherance
of that conspiracy. In contrast, when there are separate
unlawful agreements to achieve different purposes, there
may be multiple conspiracies. In that case, a member of
one conspiracy is not responsible for the foreseeable
acts of those in another conspiracy, or for acts of
others not in furtherance of the conspiracy of which he
is a part. . . . If you were to find the government has
not proven to you beyond a reasonable doubt that
[Defendant] participated in a specific conspiracy to
distribute heroin that was consumed by Mr. Wallace, then
you must acquit defendant of the offense that concerns
distribution of heroin to Mr. Wallace resulting in his
death.
-33-
on remand rejected this claim as a basis for new trial.
This court reviews a district court's refusal to give a
requested jury instruction of this nature for abuse of discretion.
United States v. Lewis, 40 F.3d 1325, 1336 (1st Cir. 2004). "The
trial court's failure to give a proffered instruction will not be
reversed unless that instruction is (1) substantively correct; (2)
was not substantially covered in the charge actually given; and (3)
concerned an important point such that the failure to give it
seriously undermined the defendant's ability to present a
particular defense." United States v. Brandon 17 F.3d 409, 448
(1st Cir. 1994). Under this third requirement, reversal is not
required unless a defendant suffers substantial prejudice. See
United States v. Tipton, 90 F.3d 861, 883 (4th Cir. 1996)
(explaining that failure to give a multiple conspiracies
instruction does not constitute reversible error "unless a
defendant can show that this caused him substantial prejudice");
Brandon, 17 F.3d at 449 (upholding the district court's refusal to
give a multiple conspiracies instruction because the defendant
failed to demonstrate sufficient prejudice to warrant a reversal).
We should keep in mind that, "[i]n the context of alleged multiple
conspiracies, the defendant's main concern is that jurors will be
misled into attributing guilt to a particular defendant based on
evidence presented against others who were involved in a different
and separate conspiratorial scheme." Id. at 450.
-34-
Here, with little attempt at developed argument,
Defendant suggests that the jury may have been misled into
attributing guilt to Defendant based on the evidence of Miguel's
separate conspiracy. We are not convinced. The district court in
this case emphasized to the jury that Defendant could only be held
accountable for the conspiracy charged in the indictment,
explicitly stating that "[t]he defendant is not on trial in this
case for alleged participation in any conspiracy other than the one
charged in the indictment." Trial Tr. vol. 11, Pt. 2, 126 (May 10,
2005). In addition, the jury was instructed that it could not
attribute guilt to Defendant based on the acts and statements of
others, unless those acts and statements were made by members of,
and in furtherance of, the charged conspiracy. Id. at 127. As to
the death-resulting issue, the jury was asked to find whether the
heroin that caused Wallace's death was distributed as a part of the
charged conspiracy. Id. at 128-29. Given the district court's
clear and correct instructions in the context of the evidence
presented at trial, Defendant falls far short of establishing that
the jury may have found him guilty based on the evidence regarding
Miguel. Defendant's claim of error thus fails because he has not
established prejudice.
G.
Defendant claims that he received ineffective assistance
of trial counsel. Specifically, Defendant contends that trial
-35-
counsel was ineffective to the extent he (1) failed to adequately
develop evidence on the purity-level differences between the heroin
found at Wallace's house on the eve of his death and the heroin
seized from Herrara two weeks later; and (2) failed to have
Wallace's blood tested for heroin. On remand, the district court
considered, but found meritless, Defendant's ineffective assistance
of counsel claim. We likewise find no merit to Defendant's
ineffective assistance claim.
“The essence of an ineffective-assistance claim is that
counsel's unprofessional errors so upset the adversarial balance
between defense and prosecution that the trial was rendered unfair
and the verdict rendered suspect.” Kimmelman v. Morrison, 477 U.S.
365, 374(1986). In order to prevail, a defendant must show both
that counsel's representation fell below an objective standard of
reasonableness and that there exists a reasonable probability that,
but for counsel's unprofessional errors, the result of the
proceeding would have been different. Strickland v. Washington,
466 U.S. 668, 688, 694 (1984). In other words, a defendant must
demonstrate both seriously-deficient performance on the part of his
counsel and prejudice resulting therefrom. In this case, Defendant
has demonstrated neither.
Although the Supreme Court in Strickland discussed the
performance prong of an ineffectiveness claim before the prejudice
prong, the Court made clear that "there is no reason for a court
-36-
deciding an ineffective assistance claim to approach the inquiry in
the same order or even to address both components of the inquiry if
the defendant makes an insufficient showing on one." Id. at 697.
As the Court noted: "If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient
prejudice, which we expect will often be so, that course should be
followed." Id.
Here, even if we were to assume, for the sake of
argument, that counsel's performance was deficient, Defendant has
made little attempt to establish the prejudice prong of the
Strickland test. Indeed, he merely states in conclusory fashion
that counsel's failures—failure to challenge the expert's purity
testimony and failure to have Wallace's blood tested for
heroin—materially prejudiced Defendant. Such conclusory argument
falls far short of satisfying Defendant's burden to prove that
there exists "a reasonable probability" that, absent his attorney's
incompetence, "the factfinder would have had a reasonable doubt
respecting guilt." Id. at 695.
We are mindful that, in evaluating the prejudice suffered
by a defendant as a result of his counsel's alleged deficient
performance, we must consider the "totality of the evidence before
the judge or jury." Id. A verdict "only weakly supported by the
record is more likely to have been affected by errors than one with
overwhelming record support." Id. at 696; see also Buehl v.
-37-
Vaughn, 166 F.3d 163, 172 (3d Cir. 1999) (noting that "[i]t is
firmly established that a court must consider the strength of the
evidence in deciding whether the Strickland prejudice prong has
been satisfied"); Reed v. Norris, 195 F.3d 1004, 1006 (8th Cir.
1999) (finding it impossible for the defendant to establish
prejudice where the evidence of his guilt was overwhelming);
Bieghler v. McBride, 389 F.3d 701, 707 (7th Cir. 2004) (finding no
prejudice where overwhelming evidence pointed to the defendant's
guilt).
In this case, the evidence was overwhelming that Wallace
died as a result of heroin that was distributed by Defendant. The
heroin baggies found in Wallace's room on March 10, 2001, were
marked with black eagles and blue stars; Tracy testified that, on
March 8, 2001, Defendant sold her baggies of heroin marked with
black eagles and blue stars; that same day, Tracy sold some of
those baggies to Flynn; Flynn testified that, on March 9, 2001, he
sold some of those same baggies to Wallace; Wallace's body was
found the next day; the medical examiner determined that heroin was
the cause of death. The evidence linking Defendant to the heroin
ingested by Wallace was thus clear. In contrast, there was no
evidence to suggest that, during the relevant time period, anyone
other than Defendant sold Tracy heroin baggies marked with blue
stars and black eagles. Consequently, even if counsel had not
"ship-wrecked" Defendant's theory of defense by his alleged
-38-
deficient performance, we find no reasonable probability that the
outcome of the trial would have been different. Quite simply, we
find Defendant's claim of ineffective assistance of counsel utterly
without merit.
H.
Defendant's final claim is that the verdicts should have
been set aside on the ground that they were against the weight of
the evidence. The district court on remand rejected this claim,
finding the evidence to be more than ample for a jury to conclude,
beyond a reasonable doubt, that Defendant was guilty of the charged
offenses.
We review the sufficiency of the evidence challenges de
novo, "affirming the conviction if, after viewing all the evidence
in the light most favorable to the government and indulging all
reasonable inferences in the government's favor, a rational
factfinder could conclude that the prosecution proved all elements
of the crime beyond a reasonable doubt." United States v.
Garcia-Carrasquillo, 483 F.3d 124, 129-30 (1st Cir. 2007). We
review a district court's denial of a motion for new trial for a
manifest abuse of discretion. United States v. Theodore, 468 F.3d
52, 56 (1st Cir. 2006).
Here, the record amply demonstrates that the jury's
verdicts were supported by overwhelming evidence. We find
Defendant's arguments to the contrary utterly without merit.
-39-
Furthermore, given the overwhelming evidence of Defendant's guilt,
it is axiomatic that the district court did not abuse its
discretion in denying Defendant's motion for new trial.
III.
For the reasons stated above, we AFFIRM the district
court's judgment of conviction and denial of motion for new trial.
-40-
United States v. De La Cruz
Court: Court of Appeals for the First Circuit
Date filed: 2008-02-01
Citations: 514 F.3d 121
Copy Citations