United States v. Garcia-Morales

United States Court of Appeals
For the First Circuit

No. 03-2094

UNITED STATES OF AMERICA,

Appellee,

v.

ROBERTO FRANCISCO GARCÍA-MORALES,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Carmen Consuelo Cerezo, U.S. District Judge]

Before

Torruella, Selya, and Howard, Circuit Judges.

Jorge E. Rivera-Ortíz on brief, for appellant.
H.S. Garcia, United States Attorney, Sonia I. Torres-Pabón,
Assistant United States Attorney Chief, Criminal Division, and
Germán Rieckehoff, Assistant United States Attorney, on brief for
appellee.

August 30, 2004
 HOWARD, Circuit Judge. Roberto Francisco García-Morales

appeals his conviction and sentence for conspiring to possess

cocaine and heroin with the intent to distribute. 21 U.S.C. § 846.

We affirm.

I.

The events leading to García's conviction took place in

October 2001. Early in the month, the United States Customs

Service, with the help of a confidential informant, infiltrated a

drug smuggling enterprise, operating out of St. Maarten, headed by

an individual named "Tocayo." The confidential informant, a

shipping captain, worked with Tocayo to transport a large shipment

of drugs to Puerto Rico and deliver it to distributors located on

the island.

Later in the month, one of Tocayo's distributors

contacted the informant and arranged to meet in the food court of

a shopping mall to discuss the logistics for transferring the

narcotics. Attending this meeting were García, who was introduced

as "El Viejo", an individual named "Javier", the confidential

informant, and an undercover Customs Service agent named Luis

Carmona. At this meeting, the informant stated that the drugs

would arrive in Puerto Rico the next day. Javier and García told

Carmona and the informant that they had brought a Dodge Caravan in

which they planned to deliver the drugs. The participants agreed

to effectuate the transfer at the Plaza Carolina Shopping Center in

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Carolina, Puerto Rico. García turned the Caravan keys over to

Carmona.

The next day Customs Service agents seized the drugs and

arranged a "controlled delivery" to García. Two days later,

Carmona drove the Caravan, containing a "sham" load of the seized

narcotics, to the shopping center parking lot where he met García

and another individual named Domingo Peña. At the mall, Carmona

gave the Caravan keys to García, who passed them on to Peña to

drive the Caravan. García followed closely behind in his car. A

few minutes later, García stopped at a restaurant and was arrested.

II.

García raises three main issues on appeal. First, he

argues that the district court abused its discretion by permitting

the government to open its case with "overview testimony" from the

agent heading the investigation. Second, he claims that the

district court improperly permitted this same agent to provide

expert testimony on the structure and operation of a typical drug

smuggling and distribution conspiracy. Finally, he contends that

the district court committed clear error by applying a role-in-the-

offense adjustment in calculating his sentence.

A. Overview Testimony

The government's first witness was Special Agent Yariel

Ramos, the Customs Service Agent in charge of the investigation.

To open his testimony, Ramos stated the investigation's ultimate

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conclusion that García was "the recipient of the narcotics, the

distributor." Ramos then provided an overview of the

investigation. During this overview, Ramos described several

events about which he had personal knowledge. In addition, he

provided a summary of a conversation, at which he was not present,

between the informant and Tocayo in which the informant agreed to

transport the drugs to Puerto Rico.

García contends that Ramos's overview testimony

undermined the fairness of the trial because it permitted the jury

to draw an inference of guilt before the jury heard from a witness

with personal knowledge. We agree that the portions of Ramos's

testimony which were not based on personal knowledge should have

been excluded (at least at the stage of trial). But we also

conclude that this error was harmless.

We recently criticized the prosecutorial practice of

opening a case by calling a government agent as an "overview"

witness:

[The use of] 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. There is also the 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

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 perceived to have the imprimatur of the
government.

United States v. Casas, 356 F.3d 104, 119-20 (1st Cir. 2004)

(internal citations omitted); see also United States v. Mazza, 792

F.2d 1210, 1215 (1st Cir. 1986).

Portions of Ramos's testimony constitute the sort of

testimony that we criticized in Casas and Mazza. Ramos was

allowed to testify that García was a member of the drug

conspiracy, even though the prosecution had not yet introduced

evidence supporting this conclusion. See Casas, 356 F.3d at 119

(concluding that it was error to permit agent to testify that,

based on the government's investigation, the defendant was a

member of a drug organization before evidence to this effect had

been admitted). Further, Ramos provided a summary of the

informant's conversation with Tocayo, even though the informant

did not testify, and Ramos was not present for this conversation.

See Mazza, 792 F.2d at 1215 (concluding that it was error to allow

government agent to summarize informant's conversations with

defendant). Thus, the prosecution was able to use Ramos's hearsay

testimony as a substitute for calling the informant. Hearsay does

not become admissible merely because it is provided by a

government agent in the form of an overview of the evidence. See

Casas, 356 F.3d at 119.

Nevertheless, while this testimony should have been

excluded, its admission was harmless in this case. In this case,

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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

bears the burden of establishing harmless error. See United

States v. Rose, 104 F.3d 1408, 1414 (1st Cir. 1997). The

harmless error inquiry is case-specific. Among other factors, it

requires consideration of the centrality of the tainted evidence,

its uniqueness, its prejudicial impact, the use to which the

evidence was put, and the relative strengths of the parties'

cases. See United States v. Sepulveda, 15 F.3d 1161, 1182 (1st

Cir. 1993).

The admissible evidence against García clearly

established his participation in the charged conspiracy. The most

damning testimony came from Agent Carmona. Carmona described, in

detail, his initial meeting with García and Javier, in the

shopping mall food court, where the parties planned to transfer

the narcotics to García. He testified that during this meeting

Javier referred to Tocayo as the supplier of the drugs and García

claimed that he was responsible for the shipment. Carmona also

testified that García provided him with the keys to the Caravan in

which he was to deliver the drugs.

Carmona's testimony was corroborated by Ramos, who

observed the meeting from across the food court. Through Ramos's

properly admitted testimony, the government introduced several

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photographs of García meeting with the informant and Carmona.

Carmona also described García's participation in the

transfer of the drugs at the Plaza Carolina Shopping Mall. During

this encounter, García asked Carmona if he had spotted any police

in the area and explained that they had to avoid unexpected

encounters with law enforcement. After assuring García that he

had not seen any police, Carmona gave García the Caravan keys and

told him the location of the vehicle. García then told Carmona

that, on leaving the mall, they should walk in opposite

directions.

Ramos, who was part of the surveillance team following

the Caravan, testified that, after leaving the mall, García gave

the keys to Peña, who drove the Caravan while García followed

behind in a Toyota Corolla. As further evidence of García's

involvement, the government introduced his personal telephone

book, seized during his arrest, which contained listings for the

informant and Tocayo.

While the government's case was strong, García's defense

was relatively weak, consisting entirely of cross-examination of

the prosecution's witnesses to challenge their credibility. See

Sepulveda, 15 F.3d at 1182 (finding error harmless where the

defendant's evidence was "a drop in the proverbial bucket").

Moreover, the prejudice from Ramos's testimony was minimal.

Ramos's summary of the initial conversation between the informant

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and Tocayo, while providing context for the subsequent

investigation, was not essential to proving García's involvement

in the conspiracy. See United States v. Figueroa, 976 F.2d 1446,

1458 (1st Cir. 1992); United States v. Cintolo, 818 F.2d 980, 999

(1st Cir. 1987). Javier identified Tocayo as the supplier of the

drugs, rendering Ramos's testimony cumulative. See Rose, 104 F.3d

at 1414. Further, Ramos's conclusion that García was a drug

distributor was later corroborated by overwhelming, uncontroverted

evidence. See Casas, 356 F.3d at 121-122 (finding agent's

improper overview testimony that defendant was member of drug

organization harmless where that conclusion was later

substantiated by strong evidence).

In light of the strength of the prosecutions's case and

the limited impact of the improperly admitted testimony, we are

convinced that the jurors' "'judgment was not substantially swayed

by the error.'" See Mazza, 792 F.2d at 1216-17 (quoting Kotteakos

v. United States, 328 U.S. 765 (1946)). Accordingly, the error is

harmless.1

1
García also argues that, on several occasions, Ramos
inappropriately vouched for his own credibility and that of the
informant. All of the challenged statements, except one, were made
on cross-examination, after García had challenged Ramos's
credibility. García cannot complain about Ramos's responses to
his own cross-examination questions. See United States v. Cresta,
825 F.2d 538, 552 (1st Cir. 1987). The only other allegation of
improper vouching concerns Ramos's statement, on direct
examination, that the informant was a certified captain of large
ships. We fail to see how this testimony constituted vouching or
prejudiced García's defense.

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 B. Expert Testimony

In addition to providing an overview of the

investigation, Ramos provided an explanation of the structure and

operation of a typical drug distribution conspiracy. García

contends that this testimony was inadmissible because it was

irrelevant and Ramos was not qualified to provide it. He also

argues that this testimony was unfairly prejudicial. García did

not raise these arguments below so we consider them only for plain

error. See United States v. Montas, 41 F.3d 777, 782-83 (1st Cir.

1994). Such an error must be clear or obvious, affect substantial

rights, and seriously affect the fairness, integrity or public

reputation of judicial proceedings. See United States v. Olano,

507 U.S. 725, 732 (1993).

We begin by considering the relevance of Ramos's

testimony. For expert testimony to be admissible under Fed. R.

Evid. 702, it must "be relevant to the task at hand" and helpful

to the jury in its deliberations. United States v. Lopez-Lopez,

282 F.3d 1, 14 (1st Cir. 2002) (quoting Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993)). The district

court maintains considerable discretion in making this

determination. See United States v. Sebaggala, 256 F.3d 59, 65

(1st Cir. 2001).

"We have admitted expert testimony regarding the

operation of criminal schemes and activities in a variety of

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contexts, finding such testimony helpful to juries in

understanding some obscure or complex aspect of the crime."

Montas, 41 F.3d at 783. In particular, "expert testimony

regarding the description of a typical drug network [is] relevant

to provide context to the jury in evaluating the offenses

charged." United States v. Clarke, 24 F.3d 257, 269 (D.C. Cir.

1994); see also United States v. Campino, 890 F.2d 588, 593 (2d

Cir. 1989) ("[T]he operations of narcotics dealers are a proper

subject for expert testimony under Fed. R. Evid. 702."). The

district court therefore did not commit plain error by determining

that Ramos's testimony about the structure and operation of a

typical drug conspiracy was relevant and helpful to the jury in

understanding the case.2

We turn next to García's contention that Ramos was not

qualified to offer this testimony. Ramos served as a special

agent with the United States Customs Service for three years and

as a senior special agent for one year. In these capacities,

Ramos's duties included investigating narcotic smuggling

activities. Ramos led several of these investigations during

which he oversaw the work of other agents. All told, Ramos

2
García also claims that Ramos's testimony should have been
excluded because it did not rest on a reliable foundation.
See Daubert, 509 U.S. at 597. He has not, however, presented any
developed argument on this point, and therefore we do not consider
it. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

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participated in between 20 to 40 narcotic investigations and 40 to

60 drug seizures. Ramos's professional background provided him

with sufficient experience to explain the structure and operation

of a typical drug conspiracy. See, e.g., United States v.

Reynoso, 336 F.3d 46, 49 (1st Cir. 2003); United States v. Rivera-

Rosario, 300 F.3d 1, 17 (1st Cir. 2002); United States v. Hoffman,

832 F.2d 1299, 1310 (1st Cir. 1987).

Finally, García claims that Ramos's testimony should

have been excluded under Fed. R. Evid. 403. "Even if admissible

under Rule 702, expert testimony still may be excluded under Fed.

R. Evid. 403 if its probative value is substantially outweighed by

the risk of unfair prejudice it creates." Lopez-Lopez, 282 F.3d

at 15 (quoting Montas, 41 F.3d at 783). The jury's task was to

determine whether García was a member of the charged conspiracy.

Considering that most jurors are likely unfamiliar with the drug

trade, Ramos's testimony provided relevant context for the

subsequent evidence about García's participation. This, combined

with García's failure to specify the unfair prejudice flowing from

Ramos's testimony, leads us to conclude that it was not plain

error for the district court to admit the testimony.

C. Sentencing

García contends that the district court committed clear

error by imposing a two-level sentencing enhancement because he

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assumed a leadership role in the conspiracy.3 See U.S.S.G. §

3B1.1(c). A two-level increase under § 3B1.1(c) is justified

if the sentencing court supportably finds
that (1) the criminal enterprise involved
at least two complicit participants (of
whom the defendant may be counted as
one), and (2) the defendant, in
committing the offense, exercised control
over, organized, or was otherwise
responsible for superintending the
activities of at least one of those other
persons.

United States v. Cruz, 120 F.3d 1, 3 (1st Cir. 1997) (en banc).

The government bears the burden of proving that the defendant

qualifies for this enhancement. See id. The evidence supporting

the defendant's role in the offense may be wholly circumstantial

and the government need only prove that the defendant exercised

authority or control over another participant on one occasion. See

id. at 3-4. We review the district court's determination for clear

error. See United States v. Brown, 298 F.3d 120, 122 (1st Cir.

2002).

García contends that this adjustment must be vacated

because the district court did not make specific findings

supporting its conclusion. This argument fails because the

district court need not make specific findings when applying a

role-in-the-offense enhancement if "the record clearly reflects the

3
García has not challenged his sentence based on the Supreme
Court's recent decision in Blakely v. Washington, -- U.S. --, 124
S.Ct. 2531 (2004).

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basis of the court's determination." United States v. Marrero-

Ortiz, 160 F.3d 768, 779 (1st Cir. 1998).

The record before the district court amply justified its

conclusion. When García met with the informant and Carmona, he was

introduced as "El Viejo"; there was testimony that this is one

commonly used term for the head of a drug distribution

organization. See United States v. Laboy, 351 F.3d 578, 585 (1st

Cir. 2003) (stating that use of leadership titles is relevant to

a § 3B1.1(c) determination). In addition, at this meeting, García

indicated that he was responsible for the drug shipment and made on

the spot decisions concerning the logistics of the transfer.

Finally, García assumed a leadership role during the narcotics

transfer by giving the keys to Peña and instructing him to drive

the Caravan. Accordingly, the district court's imposition of a

role-in-the-offense enhancement was not clearly erroneous. See

Brown, 298 F.3d at 122.

III.

For the reasons set forth above, García's conviction and

sentence are affirmed.

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