United States v. Malpica-Garcia

United States Court of Appeals
For the First Circuit

No. 05-2728

UNITED STATES,

Appellee,

v.

ORLANDO MALPICA-GARCÍA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Hector M. Laffitte, U.S. District Judge]

Before

Lipez, Circuit Judge,
Selya, Senior Circuit Judge,
and DiClerico, Jr.,* District Judge.

Luis A. Guzmán Dupont for appellant.
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, with whom Rosa Emilia Rodríguez-Vélez, United
States Attorney, was on brief for appellee.

June 6, 2007

*
Of the District of New Hampshire, sitting by designation.
 DICLERICO, District Judge. Following a six-day trial,

Orlando Malpica-García was found guilty of conspiring to possess

and distribute drugs and of conspiring to possess and use firearms

in furtherance of drug trafficking. He appeals both convictions,

arguing that the district court allowed hearsay testimony in

violation of the Confrontation Clause of the Sixth Amendment and

allowed testimony about his possession of a weapon that was not

charged in the indictment in violation of the Fifth Amendment.

Malpica-García contends that without the challenged testimony, the

evidence is insufficient to support the conviction on either

count.1

I.

A federal grand jury returned an indictment on March 13,

2003, charging Malpica-García and twenty-six others with conspiracy

to commit drug-related offenses beginning in June of 2001. Later

in the evening of March 13, a Puerto Rico police officer stopped a

car on the Diego Expressway because it lacked a license plate.

Malpica-García was the driver of the car and told the officer that

he did not have a driver's license. The officer ordered Malpica-

García out of the car. The police found a .38 caliber gun in the

course of their inventory search of the car.

1
At oral argument, Malpica-García's counsel conceded that the
evidence would be sufficient if the challenged testimony were
admissible.

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 Malpica-García was arrested on March 20, 2003. On July

17, 2003, a grand jury returned a superseding indictment, again

charging Malpica-García and his co-defendants with drug-related

offenses beginning in June of 2001. Malpica-García was tried

separately from his co-defendants, some of whom pled guilty before

his trial. Two of Malpica-García's alleged co-conspirators, Leonor

Cuadrado-Figueroa and Edna Díaz-Pastrana, testified as government

witnesses against him. They described drug operations and use of

firearms by Malpica-García and others.

On July 1, 2005, the jury found Malpica-García guilty of

conspiring to possess with the intent to distribute and

distributing "five (5) kilograms or more of cocaine, and/or fifty

(50) kilograms of cocaine base (crack), and/or one (1) kilogram or

more, of heroin, within one thousand (1,000) feet of a public

school" and of conspiring "to carry a firearm in relation to a drug

trafficking offense." The jury found him not guilty on the third

charge, which was possessing a firearm in a school zone. He was

sentenced to 385 months of imprisonment on the first count and 240

months on the second count, to be served concurrently.

II.

Malpica-García contends that parts of the testimony given

by Edna Díaz-Pastrana and Leonor Cuadrado-Figuero were admitted at

trial in violation of the Sixth Amendment's Confrontation Clause,

as interpreted in Washington v. Crawford, 541 U.S. 36 (2004). He

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also contends that admitting evidence of the gun found in the car

he was driving on March 13, 2003, constituted a constructive

amendment of the indictment in violation of the Fifth Amendment.

He asserts that without the challenged evidence, the evidence at

trial would have been insufficient to support his conviction on

either count.

A. Confrontation Clause

In general, a district court's evidentiary rulings are

reviewed for an abuse of discretion. When an essentially legal

issue arises as to whether evidence has been admitted in violation

of the Confrontation Clause, however, we review a properly

preserved constitutional challenge de novo. United States v.

Walter, 434 F.3d 30, 33 (1st Cir. 2006). In addition, we may

affirm a district court judgment on any ground supported by the

record. United States v. Ossai, --- F.3d ---, 2007 WL 1191139, *4

(1st Cir. Apr. 24, 2007).

In Crawford, the Court held "that the Confrontation

Clause 'commands, not that evidence be reliable, but that

reliability be assessed in a particular manner: by testing in the

crucible of cross-examination.'" United States v. Gonzalez-Lopez,

126 S. Ct. 2557, 2562 (2006) (quoting Crawford, 541 U.S. at 61).

Therefore, "a declarant's 'testimonial' out-of-court statement is

not admissible under the Confrontation Clause unless (1) the

declarant testifies, or (2) the defendant had a prior opportunity

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for cross-examination and the declarant is unavailable, or (3) the

evidence is admitted for purposes other than establishing the truth

of the matter asserted." United States v. Maher, 454 F.3d 13, 19-

20 (1st Cir. 2006) (internal citations omitted). The Confrontation

Clause, as interpreted in Crawford, prohibits evidence of

statements that are both hearsay and testimonial. See United

States v. Brito, 427 F.3d 53, 61-62 (1st Cir. 2005).

1. Díaz-Pastrana

At trial, the prosecutor asked Edna Díaz-Pastrana how she

began using or trafficking in drugs. She testified that she began

to sell drugs through "Jaime" and that "[h]e was the one who would

supply me with the drugs, and Jaime would get in touch with . . ."

At that point, defense counsel interrupted her testimony with an

objection, and a bench conference ensued. The court ruled that

Díaz-Pastrana's statement was not hearsay.

The prosecutor then asked Díaz-Pastrana: "How do you

know that Jaime got in contact with Orlando Malpica?" Defense

counsel objected. A second bench conference was called, and

defense counsel argued that Díaz-Pastrana's testimony was

inadmissible under Crawford. The court instructed the prosecutor

to begin with questions about information the witness had from

Malpica-García. The prosecutor followed those instructions, and

Díaz-Pastrana testified only about her personal knowledge of and

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contact with Malpica-García. The defense did not object to that

testimony nor is that testimony challenged on appeal.

To come within the parameters of the Confrontation

Clause, the testimony first must be hearsay. Brito, 427 F.3d at

61. Broadly stated, hearsay is an out-of-court statement that is

offered as evidence of the truth of the matter asserted. Fed. R.

Evid. 801. In the challenged part of her testimony, Díaz-Pastrana

testified about her own actions that involved Jaime. She did not

testify as to any out-of-court statements made by Jaime.

Therefore, the challenged testimony was not hearsay.

Malpica-García also contends that Díaz-Pastrana's

testimony about his drug activities was inadmissible under

Crawford. She testified that "drug point" operators, meaning those

who sold drugs at the public housing project where she lived and

worked, had to pay Malpica-García money, called "prote," as

protection from having the drug point closed down. She named the

drug point operators, including Carlitos Way, who paid Malpica-

García "prote."

Defense counsel objected. At sidebar, defense counsel

represented that Díaz-Pastrana's testimony that Carlitos Way was a

drug point operator who paid prote to Malpica-García was hearsay

because she only knew that information from Carlitos Way's wife.2

2
In his appellate brief, Malpica-García states: "This witness
mentioned . . . a co-conspirator named Carlos D. Cruz Rodriguez
a/k/a "Carlitos Way" and his wife that were not available for the

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Defense counsel objected that Díaz-Pastrana's testimony violated

the Confrontation Clause under Crawford because Carlitos Way was

not available to testify. The district court ruled that the

testimony was admissible as a statement of a co-conspirator. On

appeal, Malpica-García argues that Díaz-Pastrana's testimony about

Carlitos Way was inadmissible under Crawford.3

Díaz-Pastrana's testimony did not expressly include an

out-of-court statement made by another declarant. If, as defense

counsel asserted, her challenged testimony were based on an out-of-

court statement by either Carlitos Way or his wife, rather than on

Díaz-Pastrana's personal knowledge, the out-of-court statement must

also be testimonial to render it inadmissible under Crawford. See

United States v. Hansen, 434 F.3d 92, 100 (1st Cir. 2006).

In Crawford, the Court gave examples of the kinds of

statements that would be testimonial: "ex-parte in-court testimony

defense . . . ." Contrary to that representation, Díaz-Pastrana
did not mention Carlitos Way's wife. Defense counsel said at
sidebar that Carlitos Way's wife was the source of Díaz-Pastrana's
knowledge about him. Therefore, the jury never heard about
Carlitos Way's wife.
3
Although Malpica-García states that the challenged testimony
did not qualify as co-conspirator statements under Federal Rule of
Evidence 801(d)(2)(E), he provides no argument to support that
assertion. In fact, Malpica-García refers to Carlitos Way as a co-
conspirator in his brief. The defense's objection at trial and the
issue raised on appeal is whether the testimony was inadmissible
under Crawford. We need not and will not delve into the separate
issue of whether the challenged testimony was admissible under Rule
801(d)(2)(E), in the absence of a developed argument on that issue.
See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

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(or its equivalent); statements contained in formalized documents

(such as affidavits and depositions); and statements made as part

of a confession resulting from custodial interrogation." Hansen,

434 F.3d at 100. Statements made during and in furtherance of a

conspiracy are not testimonial. Crawford, 541 U.S. at 56; Hansen,

434 F.3d at 100; United States v. Sanchez-Berrios, 424 F.3d 65, 75

(1st Cir. 2005).

Crawford, however, did not provide a comprehensive

formulation or definition of what statements would be deemed to be

testimonial. United States v. Rodriguez-Marrero, 390 F.3d 1, 18

(1st Cir. 2004). Following Crawford, we have held that statements

are not testimonial when they are made during a private

conversation, when they are not included in formalized documents or

made in response to interrogation or examination, and when they are

not made "under circumstances in which an objective person would

reasonably believe that the statement would be available for use at

a later trial." Horton v. Allen, 370 F.3d 75, 84 (1st Cir. 2004);

accord Hansen, 434 F.3d at 100. Testimonial statements are

generally the product of a declarant's responses to official

questioning and are made in a context in which the declarant should

know that they will be preserved for prosecutorial use. See United

States v. Maher, 454 F.3d 13, 22 (1st Cir. 2006); Brito, 427 F.3d

at 60.

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 Assuming, but not deciding, that Díaz-Pastrana's

testimony that Carlitos Way paid "prote" to Malpica-García was

hearsay, the out-of-court statements were not testimonial within

the meaning of Crawford. The record includes no indication that

Díaz-Pastrana was repeating statements that Carlitos Way or his

wife made to police, in an investigative context, or in a courtroom

setting. Instead, such statements would have been made in the

course of private conversations or in casual remarks that no one

expected would be preserved or used later at trial. Therefore,

even if Díaz-Pastrana's testimony were based on statements made by

Carlitos Way or his wife, because those statements were not

testimonial, the challenged testimony was not prohibited under

Crawford.

2. Leonor Cuadrado

Malpica-García also challenges testimony given by Leonor

Cuadrado about a meeting that occurred at the public housing

project in early 2003 and about Malpica-García's dealings with

another co-defendant known as "Motito." At trial, the defense

objected to Cuadrado's testimony about the meeting and Malpica-

García's dealings with Motito based on Crawford. The district

court denied the defense's objections to that testimony.

In the first challenged statement, Cuadrado testified

that Malpica-García and several of his co-defendants attended a

meeting in front of building seven at the housing project. She

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said that some of those attending the meeting wanted "drug points"

in the project to be closed but Malpica-García opposed closing

them. She further testified that although she saw the people who

had congregated for the meeting, she did not attend and that her

husband, who was there, told her what was discussed.4 Cuadrado's

challenged testimony about Motito was that he was a friend of hers

who complained about Malpica-García asking him for "material"

(meaning drugs) and money.

Neither the conversation about the meeting nor Motito's

complaints about Malpica-García were testimonial statements within

the meaning of Crawford. Instead, both were part of private

conversations or were casual remarks made without any expectation

that the information would be saved and used at a trial.

Therefore, Crawford does not apply.

B. Constructive Amendment of the Indictment

Based on the March 13, 2003, indictment, Malpica-García

contends that the police officer's testimony at trial about

stopping his car on the evening of March 13 and finding a gun in

the car constituted a constructive amendment of the indictment.

Malpica-García argues that because the grand jury returned the

indictment at 5:09 p.m. on March 13, the stop and search of the car

he was driving at 10:30 p.m. were not included in the offenses

4
The person Cuadrado referred to as her husband is Jesus
Encarnación Medina, known as "Chuchú," another co-defendant.

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charged in the indictment. Based on that sequence of events, he

asserts that the police officer's testimony about finding the gun

was evidence of an offense not charged in the indictment, entitling

him to a reversal of his conviction on the charge of conspiracy to

carry a firearm in relation to a drug trafficking offense.

"A constructive amendment (fatal without regard to

prejudice) occurs when the charging terms of the indictment are

altered, either literally or in effect, by prosecution or court

after the grand jury has last passed on them . . . ." United

States v. Mueffelman, 470 F.3d 33, 38 (1st Cir. 2006) (internal

quotation marks omitted). Therefore, "[a] defendant cannot

complain of an improper constructive amendment if the indictment is

actually amended by resubmission to the grand jury." United States

v. Calderon, 77 F.3d 6, 10 (1st Cir. 1996).

In this case, Malpica-García's constructive amendment

argument is based entirely upon the indictment returned on March

13, 2003. A superseding indictment, however, was submitted to the

grand jury and was returned on July 17, 2003. The superseding

indictment, in pertinent part, charged Malpica-García with

conspiring to use, carry, or possess a firearm in furtherance of a

drug trafficking crime from September 12, 2001, to March 13, 2003.

Because the superseding indictment was returned months after March

13 and includes material events that occurred at any time during

March 13, Malpica-García's argument based on the timing of the

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previous indictment is unavailing. Therefore, the prosecution did

not constructively amend the indictment.

C. Sufficiency of the Evidence

As is noted above (see footnote one), Malpica-García's

counsel conceded at oral argument that if the challenged testimony

were properly admitted at trial, the evidence was sufficient to

support the jury's verdict. That being the case, we need not

consider Malpica-García's argument on insufficiency of the

evidence.

Affirmed.

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