United States Court of Appeals
For the First Circuit
No. 07-1912
UNITED STATES,
Appellee,
v.
WALTER MANGUAL-SANTIAGO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Torruella and Howard, Circuit Judges,
and DiClerico,* District Judge.
Rafael Castro Lang for appellant.
Desireé Laborde-Sanfiorenzo, Assistant United States Attorney,
with whom Rosa Emilia Rodríguez-Vélez, United States Attorney,
Nelson Pérez-Sosa, Assistant United States Attorney, and Thomas F.
Klumper, Assistant United States Attorney, were on brief for
appellee.
April 17, 2009
*
Of the District of New Hampshire, sitting by designation.
DICLERICO, District Judge. Appellant Walter Mangual-
Santiago (“Mangual”) was convicted after a jury trial of conspiracy
to possess with intent to distribute cocaine and heroin (Count One)
and to commit money laundering (Count Five). He was sentenced to
a term of imprisonment of 324 months. For the reasons that follow,
we affirm.
Mangual appeals his conviction under Count One, arguing
that while he was charged and convicted of a single conspiracy, the
evidence at trial showed that there were two separate conspiracies
and that prosecution for the first conspiracy was barred by the
five-year statute of limitations under 18 U.S.C. § 3282. On that
ground, he contends that the court erred by denying his motions for
acquittal and by failing to give a multiple conspiracies
instruction to the jury. Mangual further challenges his
convictions under Counts One and Five, arguing that the court
abused its discretion by admitting certain testimony and evidence,
by denying his request for a continuance, and by denying his motion
to dismiss the indictment based on the government’s delay in
bringing him before a federal magistrate.
I.
A. Background Facts
The government’s evidence consisted of the testimony from
the following witnesses: Antonio Robles Ramos (“Antonio”), a
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coconspirator; Samuel Robles Ramos (“Samuel”), a coconspirator and
Antonio’s brother; Fidel Hernandez Mattei (“Fidel”), a
coconspirator and a cousin of the Robles’;1 Hilario Marrero Rivera
(“Marrero”), a sergeant with the Ponce, Puerto Rico, Drug Squad;
Eddie Vidal-Gil, an officer with the Puerto Rico Police Department
and an agent of the federal Drug Enforcement Agency task force in
Ponce; Angel Pardo (“Pardo”), an officer with the Orlando, Florida,
Police Department and an agent of the U.S. Marshals Fugitive Task
Force in Orlando; and Alberto Borelli Irizarry (“Borelli”), an
internal investigator for Western Bank. Mangual did not present
any evidence or call any witnesses at trial.
The facts are recited in the light most favorable to the
verdicts being appealed. United States v. Sanchez-Badillo, 540
F.3d 24, 27 (1st Cir. 2008). Antonio met Mangual in October of
1991, through Fernando Perez (“Perez”), a mutual acquaintance, when
Antonio provided Mangual with two kilograms (“kilos”) of cocaine.
Mangual sold the cocaine and made cash payments to Antonio.
Following this transaction, Antonio and Perez began working
together to import cocaine into Puerto Rico for distribution. They
worked with an individual, known only as “Mr. Jockey,” who had
cocaine connections in Columbia.
1
Antonio, Samuel, and Fidel were charged, convicted, and
sentenced under a previous indictment.
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Antonio would travel by boat to a specified location off
the coast of Puerto Rico, where planes from Columbia would drop
bales of cocaine into the ocean. Antonio would retrieve the bales
from the water and transport them to the mainland where Perez or
Samuel, Antonio’s brother, would pick up the cocaine and store it
until they received further delivery instructions from Mr. Jockey.
On one pick-up in 1993, Antonio met with Mangual to sell him 200
kilos of cocaine, but Mangual refused to purchase the kilos because
he had obtained a cheaper price elsewhere. During this time,
Antonio was aware that Mangual operated a separate drug point and
had other drug suppliers.
On October 7, 1993, Sergeant Marrero and other Puerto
Rico police officers executed a search warrant at an apartment in
Ponce. The warrant was the result of an investigation conducted by
the Puerto Rico Police Department regarding the contents of an
apartment at which Mangual and another individual, Melvin Alvarez,
had been staying. The officers found Mangual inside the apartment,
along with three quarters of a kilo of cocaine, a scale, $1,000 in
cash, jewelry, marijuana, and a loaded pistol. Based on the items
found during the search, Mangual was convicted and sentenced to a
term of imprisonment. He was released in 1996.
While Mangual was in jail, Antonio and Perez continued
their drug trafficking operations, importing at least 500 kilos of
cocaine per year. In 1994, Antonio’s cousins, Fidel and Carlos
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Hernandez Mattei (“Carlos”), sold forty kilos of cocaine to
Antonio, and thereafter became members of his drug trafficking
organization.
From the summer of 1994 until October of 1995, Antonio
testified that he and Perez were not involved in any drug
transactions. In late 1995, Perez introduced Antonio to Aureliano
and Elliot Giraud Pinero (the “Girauds”), brothers who had cocaine
connections in Columbia. Antonio and his organization, including
his brothers, Samuel and David Robles Ramos (“David”), his cousins,
Fidel and Carlos, and other individuals, worked with the Girauds to
import cocaine into Puerto Rico. While working with the Girauds,
Antonio continued to coordinate the cocaine pick-ups. In 1998,
Antonio began working with the Girauds to transport cocaine from
Puerto Rico to the United States mainland.
In 1996, Mangual was released from prison, and he
approached Antonio for work. Due to his recent incarceration, he
was having problems with his other suppliers and his drug point.
Antonio agreed to sell Mangual two kilos of cocaine. Mangual sold
the cocaine and made payments to Antonio in cash. Later that year,
Antonio began selling heroin to Mangual. From December of 1996
until March of 1997, Mangual purchased a minimum of four kilos of
heroin from Antonio on approximately ten separate occasions, paying
Antonio in cash each time. On at least three occasions, Samuel
delivered the heroin directly to Mangual.
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In 1997, Antonio received an order from the Girauds to
organize the pick-up and distribution of a shipment of 800 kilos of
cocaine from Columbia, which would be dropped at sea. Samuel,
Mangual, and several other individuals were involved in this pick-
up. Through Antonio, the Girauds gave Mangual cash, which he used
to purchase a boat and engines. The cocaine pick-up was never
completed, however, because the captain and crew were unable to
find the pick-up site at sea.
In June of 1998, the Girauds and Antonio transported a
shipment of cocaine through Jacksonville, Florida, to New York.
They left twenty-three kilos of cocaine in Jacksonville, and
Antonio offered to sell them to Mangual. Samuel, Elliot Giraud,
and another individual met Mangual in Florida, agreed to the deal,
and sold him the cocaine. Mangual paid for the cocaine in cash.
Antonio testified at trial that he funneled the money he
was receiving from drug trafficking through a business he and David
ran, for purposes of laundering the money. He also testified that
as far as he was aware, Mangual’s only other source of income,
other than drug trafficking, was through his tire business,
operated out of his home in La Cuarta, Puerto Rico, and through
cockfighting. Through 1999, Antonio and Mangual also spent large
amounts of cash earned from drug trafficking at cockfights, on
cars, Jetskis, and in bars and clubs.
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B. Procedural History
In 1999, a member of Antonio’s organization provided
information to the government regarding the drug trafficking
activities of Antonio, Samuel, Fidel, and forty-seven other
individuals, which ultimately led to their indictment and arrest on
charges of drug trafficking, conspiracy to commit drug trafficking,
and money laundering. Mangual was not named in the indictment.
Antonio, Samuel, and Fidel pled guilty and were sentenced to terms
of imprisonment. In 2000, Antonio and Samuel each entered into a
cooperation agreement with the government, and their sentences were
reduced upon motions from the government. The information provided
by them led to indictments against Mangual, the Girauds, David, and
fifteen other individuals.
A sealed indictment was returned against Mangual on
December 16, 2003, and an arrest warrant was issued. The
indictment was unsealed on March 3, 2004. Efforts to arrest
Mangual were unsuccessful, and he was declared a fugitive from
justice until he was apprehended on February 28, 2006, in Orlando,
Florida, at a house which he was renting. Agent Pardo, in his
capacity as an agent of the U.S. Marshals Fugitive Task Force,
participated in Mangual’s arrest. On Mangual’s person, officers
found $2,500 in cash, several false identifications, and credit
cards with false names. A search of Mangual’s house produced
marijuana, cocaine, scales, and $10,000 in cash.
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Mangual was transferred to the state authorities for
prosecution under Florida law as a result of the drugs found during
his arrest. He ultimately pled guilty to the state charges and was
sentenced on June 21, 2006, to time served. On June 23, 2006, 110
days after his arrest, he was taken before a federal magistrate in
Orlando for his initial appearance on the federal conspiracy
charges and a public defender was appointed to represent him for
the proceedings in Orlando.
Mangual was removed to Puerto Rico and made his initial
appearance in the Puerto Rico district court on August 3, 2006, at
which he pled not guilty to the charges against him. The court
appointed counsel on August 7, 2006, and scheduled trial for
November of 2006. On November 9, 2006, Mangual filed a pro se
motion asking that his court-appointed counsel be removed and
requesting a continuance so that he could hire new counsel.
Following a hearing, the court granted his motion, gave Mangual
until December 15 to hire new counsel, and rescheduled the trial to
January 8, 2007. Mangual’s new counsel filed his appearance on
December 15 and requested a continuance on the ground that he
needed more time to prepare for trial, given that he had scheduled
a vacation from December 26, 2006, through January 8, 2007. The
court summarily denied the request on January 3, 2007, while
Mangual’s counsel was on vacation. The trial began, as scheduled,
on January 8, 2007.
-8-
Included in the evidence introduced by the government at
trial to support the money laundering conspiracy charge were
Mangual’s account records at Western Bank from 1998 through 2004
and a record of Mangual’s purchases at Costco, a wholesale food and
retail store, where he had established a membership under a false
name. The government also introduced a certification from the
Puerto Rico Treasury Department showing that Mangual did not file
income tax returns for the years 1996 through 2004.
On the day before the close of evidence, Mangual filed a
motion to dismiss his indictment in whole or in part, on the ground
that the evidence showed that he was involved in two separate
conspiracies and that prosecution for the first conspiracy was
barred by the five-year statute of limitations under 18 U.S.C. §
3282. In the alternative, Mangual requested that a limiting
instruction be given to the jury not to consider evidence of the
first conspiracy. The court declined to decide the motion at that
time, and Mangual raised both arguments at the close of evidence in
a motion for acquittal under Federal Rule of Criminal Procedure 29
(“Rule 29 motion”). The court denied the motion.
After the jury charge was given, Mangual objected,
referencing his motion to dismiss based on evidence of multiple
conspiracies. The court stated that the evidence did not support
his claim and that it would not instruct the jury on multiple
conspiracies. The jury found Mangual guilty on Counts 1 and 5 on
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January 17, 2007. On January 24, 2007, Mangual again moved for
acquittal, pursuant to Rule 29, or, in the alternative, for a new
trial pursuant to Federal Rule of Criminal Procedure 33. The
district court denied the motion.
II.
On appeal, Mangual argues that there was a variance
between the indictment, which charged a single conspiracy, and the
evidence produced at trial, which he contends showed that he was
involved in two separate conspiracies. On this ground, he
challenges the district court’s denial of his motions for acquittal
or for a new trial, as well as the court’s failure to instruct the
jury on multiple conspiracies. He also challenges the admission of
certain evidence at trial, the denial of his request for a
continuance, and the denial of his motion to dismiss based on the
government’s delay in bringing him before a federal magistrate.
A. Multiple Conspiracies
Mangual argues that the evidence at trial showed that he
was involved in two separate conspiracies, the first from 1991
through 1994, and the second beginning in 1996. He contends that
prosecution for the first conspiracy was barred by the statute of
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limitations under § 3282.2 The government contends that the
evidence does not support the existence of two conspiracies.3
1. Variance
Mangual contends that the evidence presented at trial
constituted a variance from his indictment. He argues that the
district court erred in denying his motions for acquittal and his
request to exclude all evidence of actions prior to 1996, due to
the prejudicial effect that evidence of the “first” conspiracy
would have on the jury.
“A variance occurs when the crime charged remains
unaltered, but the evidence adduced at trial proves different facts
than those alleged in the indictment.” United States v. Yelaun,
541 F.3d 415, 419 (1st Cir. 2008). A variance is grounds for
reversal only if it is prejudicial, that is, if it affects the
2
Section 3282 provides, in pertinent part: “Except as
otherwise expressly provided by law, no person shall be prosecuted,
tried, or punished for any offense, not capital, unless the
indictment is found or the information is instituted within five
years next after such offense shall have been committed.” 18
U.S.C. § 3282(a).
3
The government also argues that to the extent Mangual
challenges his money laundering conspiracy conviction based on his
multiple conspiracy theory, his argument is waived. We agree.
Mangual makes a terse reference to his money laundering conspiracy
conviction, arguing only that it be reversed. See United States v.
Soto-Beníquez, 356 F.3d 1, 43 (1st Cir. 2004); United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (“[I]ssues adverted to in
a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived.”). We disagree with Mangual that
his argument regarding the narcotic conspiracy necessarily
incorporates a challenge to the money laundering conspiracy.
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defendant’s “substantial rights.” United States v. DeCicco, 439
F.3d 36, 47 (1st Cir. 2006). To determine whether there was a
variance, we “review the record to determine whether the evidence
and reasonable inferences therefrom, taken as a whole and in the
light most favorable to the prosecution, would allow a rational
jury to determine beyond a reasonable doubt” that a single
conspiracy existed. United States v. Mena-Robles, 4 F.3d 1026,
1031 (1st Cir. 1993). The jury’s finding, however, need not be
inevitable. United States v. Boylan, 898 F.2d 230, 243 (1st Cir.
1990).
In determining whether the evidence supports the
existence of a single conspiracy, we ultimately look at the
totality of the evidence. Sanchez-Badillo, 540 F.3d at 29. The
following factors are considered helpful, however, in evaluating
the evidence: “(1) the existence of a common goal, (2)
interdependence among the participants, and (3) overlap among the
participants.” Id. Although conflicting inferences may arise, so
long as the evidence is adequate to permit a reasonable trier of
fact to have found a single conspiracy beyond a reasonable doubt,
the jury’s finding will not be disturbed on appeal. See Boylan,
898 F.2d at 243.
The common goal factor is given “wide breadth.” Sanchez-
Badillo, 540 F.3d at 29. “[A] ‘goal of selling cocaine for
profit’” or “furthering the distribution of cocaine is . . .
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sufficient evidence” of a common goal. United States v. Portela,
167 F.3d 687, 695 (1st Cir. 1999) (quoting United States v. Wilson,
116 F.3d 1066, 1075 (5th Cir. 1997) (reversed in part on other
grounds)). We will find interdependence among the participants
where “‘the activities of one aspect of the scheme are necessary or
advantageous to the success of another aspect of the scheme.’” Id.
(quoting Wilson, 116 F.3d at 1075). “Each individual must think
the aspects of the venture interdependent, and each defendant’s
state of mind, and not his mere participation in some branch of the
venture, is key.” Id. Finally, the overlap factor is “satisfied
by the pervasive involvement of a single ‘core conspirator,’ [or]
hub character.” Id. (quoting Wilson, 116 F.3d at 1076).
In applying these factors, we recognize that the
existence of a single conspiracy does not depend upon every
participant having knowledge of every other participant, or of the
details of the conspiracy. Sanchez-Badillo, 540 F.3d at 29. Nor
is it necessary that each coconspirator participate in every aspect
of the conspiracy, id., or “that the membership remain static,”
Portela, 167 F.3d at 696.
Beginning with the cocaine transaction in 1991, Antonio,
Perez, and Mangual worked together towards the common goal of
selling cocaine for profit. In 1996, when Mangual alleges a new
conspiracy began, Antonio, Mangual, and others continued to operate
under this same goal. Mangual contends that the purpose changed
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when Antonio began working with the Girauds to transport cocaine
beyond Puerto Rico and into the continental United States.
However, Antonio did not begin working in this capacity until 1998,
and moreover, the goal of the operations remained the same as in
1991 - to sell cocaine for profit.
The evidence also demonstrated interdependence among
Antonio and the members of his organization, both before and after
the Girauds became involved. Antonio was dependent upon the
carriers to transport and store the cocaine, and upon the
distributors, such as Mangual, to sell the cocaine for cash.
Antonio testified that he always relied upon the distributors to
sell the cocaine because that was not a job he wanted to undertake.
The distributors, in turn, relied upon Antonio to obtain the
cocaine. Their relationships did not change, even after Antonio
began working with the Girauds in 1996.
The evidence also established an overlap among the
participants. Antonio was a “hub character” during both time
periods, and he maintained his leadership and coordinator role.
There were also numerous additional consistent participants:
Samuel, Fidel, and Mangual all worked with Antonio before, and
after, he began working with the Girauds.
Mangual asserts, however, that the conspiracy was
abandoned, or terminated, in 1994, because he was in jail, and
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Antonio and Perez had retired.4 Because Mangual acknowledges that
a conspiracy existed, the law presumes that the conspiracy
continued, and that he continued to participate, unless he makes
“an affirmative showing” that the conspiracy was abandoned or
terminated, or that he withdrew from it. United States v. Piper,
298 F.3d 47, 53 (1st Cir. 2002); see United States v. Harriston,
329 F.3d 779, 783 (11th Cir. 2003) (“A conspiracy is deemed to have
continued as long as the purposes of the conspiracy have neither
been abandoned nor accomplished and the defendant has not made an
affirmative showing that the conspiracy has terminated.”). When
coconspirators refrain, for a period of time, from engaging in drug
transactions, this does not, in and of itself, constitute
termination or abandonment of the conspiracy. See United States v.
Williams, 205 F.3d 23, 33 (2d Cir. 2000) (“A single conspiracy is
not transposed into a multiple one simply by lapse of time, change
in membership, or a shifting emphasis in its locale of
operations.”).
Mangual argues that Antonio and Perez retired from the
drug business in May or June of 1994.5 Antonio testified that he
4
The government presumes that Mangual argues that he withdrew
from the conspiracy in 1993. Upon review of Mangual’s brief,
however, we find that he does not assert affirmative withdrawal,
but rather argues that his arrest, together with the alleged
retirement of Antonio and Perez, effectively terminated the “first”
conspiracy.
5
To the extent Mangual refers to grand jury testimony to
support his argument, we will not consider such testimony on appeal
-15-
and Perez did not engage in any drug transactions between June of
1994 and October of 1995. Other evidence at trial, however,
demonstrated that Antonio and his organization continued drug
transactions throughout this period. For example, Antonio also
testified that he and Perez organized the pick up of at least one
load of cocaine, amounting to at least 500 kilos, during 1994 and
1995. Further, Fidel testified that in 1994 he delivered and sold
forty kilos of cocaine to Antonio, and that he picked up a bale of
cocaine for Antonio in 1995.
Even if the evidence showed that Antonio and Perez
refrained from drug transactions for a period between 1994 and
October 1995, the evidence admitted at trial does not suggest that
Antonio and Perez abandoned the drug conspiracy. Antonio testified
that after picking up three loads of cocaine in one day in 1996, he
did not have to work the rest of the year. The jury could
reasonably infer from this testimony that Antonio’s drug business
was sufficiently profitable that it did not require him to work
year-round. A sixteen-month gap between drug pick-ups, in and of
itself, does not prove that Antonio or Perez abandoned the drug
conspiracy. See United States v. Arnold, 117 F.3d 1308, 1314-15
(11th Cir. 1997) (recognizing that money laundering, living off
“prior illegal drug proceeds,” and continued contact with
coconspirators constitute activities which extend drug conspiracy);
because it was not submitted as evidence at trial.
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cf. United States v. Richardson, 532 F.3d 1279, 1286 (11th Cir.
2008) (“[N]othing in the evidence could have led the jury to
conclude that . . . [the defendant] ever stopped dealing drugs for
any material length of time.”) (emphasis added). The evidence was
sufficient, therefore, to establish a single conspiracy, and there
was no variance between the evidence produced at trial and the
indictment.
Even if a variance did exist, however, Mangual has not
shown prejudice. “A variance is fatal only if the defendant shows
prejudice.” United States v. Trainor, 477 F.3d 24, 35 (1st Cir.
2007). A variance between a charged single conspiracy and evidence
of separate conspiracies at trial is prejudicial if the defendant
was convicted based on evidence pertaining to a separate conspiracy
of which he was not involved. See United States v. Dunbar, 553
F.3d 48, 61-62 (1st Cir. 2009). “Put another way, multiple
conspiracy is not a defense unless it creates reasonable doubt
about whether the defendant is guilty of the charged conspiracy.”
Id. at 62 (internal quotation marks omitted). Ordinarily, when the
evidence shows that the defendant was involved in criminal
activities that constituted separate conspiracies, no prejudice
arises because the defendant, himself, engaged in charged conduct
attributable to each conspiracy. Id.
In this case, however, Mangual argues that although he
was involved in the “first” and “second” conspiracies, the statute
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of limitations bars his conviction for conduct that was part of the
“first” conspiracy. He contends that he is prejudiced because
evidence of the first conspiracy at trial creates a reasonable
doubt as to whether he was convicted of a conspiracy that is barred
by the statute of limitations. Mangual’s theory fails on several
grounds.
Mangual does not contend that the “second” conspiracy,
involving Antonio, the Girauds, and others, which continued through
December of 2002, was barred by the statute of limitations. The
evidence at trial of Mangual’s participation in the “second”
conspiracy was more than sufficient to support his conviction.6 In
this case, even if prosecution for the “first” conspiracy were
barred by the statute of limitations, the evidence of the “first”
conspiracy at trial does not create reasonable doubt about the
basis of Mangual’s conviction.
In addition, expiration of the limitations period would
not necessarily have caused the evidence of his activities
undertaken as part of the “first” conspiracy to be inadmissible.
See Richardson, 532 F.3d at 1289 (“[T]he evidence outside of the
statute of limitations . . . would have most likely been admitted
under [Federal] Rule [of Evidence] 404(b) in order to prove how
[the defendant] became involved with and knowledgeable about the
6
Mangual does not appeal his sentence or argue that he was
prejudiced because his sentence was increased based on his
involvement in the “first” conspiracy.
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drug trade.”). Even if the trial court had agreed with him that
the evidence showed two separate conspiracies, Mangual makes no
effort to show that evidence of the “first” conspiracy would have
been inadmissible at trial.
Mangual has not shown that there was a variance between
the conspiracy charged and the evidence at trial or that, if a
variance occurred, he was prejudiced by it. Therefore, the
district court did not err by denying Mangual’s motion to dismiss
the indictment or his request to exclude all evidence before 1996.
2. Jury Instructions
Mangual argues that the trial court erred by failing to
give a jury instruction on multiple conspiracies. He contends that
such an instruction was necessary because there was evidence at
trial which showed two conspiracies and that evidence of his
conduct in furtherance of the “first” conspiracy was barred by the
statute of limitations. We review the district court’s refusal to
give a multiple conspiracies instruction under the circumstances of
this case for abuse of discretion. United States v. De La Cruz,
514 F.3d 121, 139 (1st Cir. 2008).7 The trial court's failure to
give a multiple conspiracies instruction in this case will not be
7
It is not clear from the record whether Mangual preserved
this issue. See United States v. Upton, No. 05-1593, __ F.3d __,
(1st Cir. Mar. 5, 2009). However, in an abundance of caution, we
address his argument, applying the abuse of discretion standard of
review.
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reversed unless Mangual can show that he suffered substantial
prejudice. Id.
For the reasons explained above, Mangual has not
established that he suffered from substantial prejudice. Further,
the jury charge given by the district court explained that to find
Mangual guilty of the drug conspiracy in Count One, the jury had to
find that the government proved, beyond a reasonable doubt, the
agreement “specified in the indictment, in Count 1 . . . and not
some other agreement . . . .” Trial Tr. Jan. 17, 2007, at 15
(emphasis added); see id. at 139-40. Due to the district court’s
clear instruction, and for the reasons explained above, we find no
abuse of discretion.
B. Evidentiary Issues
Mangual argues that the evidence admitted at trial
regarding his 1993 arrest, 2006 arrest, bank account records, and
Costco purchases was inadmissible and that the district court erred
in admitting this evidence over his objections. The district
court’s decision to admit evidence is reviewed for abuse of
discretion. See United States v. Pierre, 484 F.3d 75, 84 (1st Cir.
2007). “[A]n abuse of discretion occurs when a relevant factor
deserving of significant weight is overlooked, or when an improper
factor is accorded significant weight, or when the court considers
the appropriate mix of factors, but commits a palpable error of
judgment in calibrating the decisional scales.” United States v.
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Gilbert, 229 F.3d 15, 21 (1st Cir. 2000) (internal quotation marks
omitted).
1. Agent Marrero’s Testimony
Mangual argues that the district court erred in admitting
Agent Marrero’s testimony, regarding his 1993 arrest and the
narcotics found during the search of the apartment, as direct proof
of the charged conspiracy. He also contends that if the testimony
were admissible under Federal Rule of Evidence 404(b), the district
court erred in admitting the testimony because he was not given
prior reasonable notice as required by Rule 404(b).
“Evidence that a defendant on trial for one crime has
been involved in another crime or bad act is inadmissible under
Fed. R. Evid. 404(b) if it is offered solely to prove the criminal
character of the defendant or his propensity to commit crimes of
the sort for which he is on trial.” United States v. Escobar-
deJesus, 187 F.3d 148, 169 (1st Cir. 1999). However, “Rule 404(b)
applies just to evidence of other bad acts or crimes - those other
than the crime charged. Where evidence of ‘bad acts' is direct
proof of the crime charged, Rule 404(b) is, of course,
inapplicable.” United States v. Arboleda, 929 F.2d 858, 866 (1st
Cir. 1991) (internal quotation marks omitted) (emphasis in
original).
When determining whether evidence constitutes direct
proof of a narcotics conspiracy, we have looked to whether the
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contested incident shares “temporal proximity and factual
similarity” with the conspiracy. Escobar-deJesus, 187 F.3d at 168.
In addition, “this court has held that scales, firearms and large
amounts of cash are each probative of the intent to distribute
narcotics.” United States v. Ford, 22 F.3d 374, 383 (1st Cir.
1994).
When the police officers found Mangual in the Ponce
apartment, the officers also found a loaded firearm, three quarters
of a kilo of cocaine, a scale, and approximately $1,000 in cash,
among other items (collectively, “Ponce evidence”). The arrest
occurred in 1993, during the conspiracy period, and in the area in
which the indictment alleged that Mangual distributed cocaine.
Although there was no evidence that the cocaine found in Mangual’s
possession came from Antonio, the Ponce evidence corroborates
Antonio’s testimony that Mangual was a cocaine distributor at the
time of the charged conspiracy. As evidence of the conspiracy, the
gun, cocaine, and money are part of the charged crime, which does
not implicate Rule 404(b). Therefore, we do not address Mangual’s
argument that he was not provided reasonable prior notice of Agent
Marrero’s testimony as required by Rule 404(b).
2. 2006 Arrest
Mangual contends that Agent Pardo’s testimony regarding
the cocaine and marijuana, which were found in the Florida
residence where he was arrested in 2006, should have been excluded
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as evidence of subsequent bad acts, as irrelevant, and as unfairly
prejudicial.8 See Fed. R. Evid. 404(b), 401, 403. He argues that
the testimony regarding the illegal drugs found when he was
arrested is outside the scope of the charged conspiracy, which
ended four years earlier. He also argues that the evidence
contributed to his conviction on the conspiracy charge.
The government counters that Pardo’s testimony about the
drugs found when Mangual was arrested was admissible as evidence of
Mangual’s consciousness of guilt. See, e.g., United States v.
Benedetti, 433 F.3d 111, 116 (1st Cir. 2005) (discussing
admissibility of flight evidence). The government, however, did
not provide any plausible basis to support its consciousness of
guilt theory. We see no relation between the drugs and Mangual’s
consciousness of guilt.
The government also contends that even if the drug
evidence were inadmissible, any error was cured by the court’s
limiting instruction. The court instructed the jury that although
they had heard evidence that Mangual might have committed illegal
acts other than the charged crimes, he was on trial only for the
charged drug conspiracy and money laundering crimes. The court
told the jury that they could not consider evidence of other
8
Although the government also argues that evidence of the
other items found during Mangual’s arrest was admissible under Rule
404(b), Mangual contests only the admissibility of the drugs.
-23-
activities for the purpose of convicting Mangual of the charged
crimes. Specifically, the court instructed:
[T]he drugs that were found at the place of
his arrest in Florida, . . . are not charged
in this indictment, those were dealt with by
Florida in a separate case. So you cannot
consider those as evidence of guilt in this
particular indictment, that cannot be done.
Is that clear? You have to keep that very
clear in your mind.
An error in admitting evidence pursuant to Rules 401,
403, and 404(b) is harmless as long as “the disputed evidence did
not contribute to the verdict.” United States v. Ofray-Campos, 534
F.3d 1, 35 (1st Cir. 2008); see also United States v. Garza, 435
F.3d 73, 77 (1st Cir. 2006). When a limiting instruction
adequately addresses any prejudice that might arise from improperly
admitted evidence and the record lacks evidence that the jury
disregarded the instruction, the evidentiary error is harmless.
See United States v. Mercado, 412 F.3d 243, 250 (1st Cir. 2005);
see also United States v. Bucci, 525 F.3d 116, 127 (1st Cir. 2008)
(“[W]e ordinarily presume that jurors will follow limiting
instructions.”).
The jury was instructed not to consider the drug evidence
for the purpose of determining Mangual’s guilt.9 Mangual offers no
reason to believe that the jury did not follow the instruction in
9
To the extent that Mangual also challenges the instruction
that was given, he has not shown that his objections were preserved
at trial. In any case, we find no error.
-24-
this case. Given the jury instruction and the strength of the
government’s case against Mangual, we conclude that the drug
evidence could not have affected the outcome of the trial.
3. Costco Purchases
Mangual argues that the document listing his purchases at
Costco beginning in November of 2005 was inadmissible because it
was not relevant under Rule 401 and was unfairly prejudicial under
Rule 403. The government argues that the Costco evidence was
relevant to show consciousness of guilt and, in the alternative,
that any error in admitting the record was harmless.
Because Mangual failed to object to the Costco evidence
at trial based on either Rule 401 or Rule 403 grounds, we review
this issue for plain error.10 See United States v. Griffin, 524
F.3d 71, 81 (1st Cir. 2008). “We will not find plain error unless
(1) an error occurred (2) which was clear or obvious and which not
only (3) affected [the defendant’s] substantial rights, but also
(4) seriously impaired the fairness, integrity, or public
reputation of judicial proceedings.” United States v. Flemmi, 402
F.3d 79, 86 (1st Cir. 2005) (brackets and internal quotation marks
omitted).
The Costco evidence reflects account activity for a joint
account held by Mangual, who used a false name, and Vanessa M.
10
Mangual objected to the admission of the Costco record but
based his objection on Federal Rule of Evidence 902(11). He does
not pursue this objection on appeal.
-25-
Nance, from November 10, 2005, through January 5, 2006. The record
shows that several expensive items were purchased, including two
plasma televisions, bottles of Dom Perigon champagne, and a digital
camera, among other items. Evidence that Mangual opened a Costco
account under a false name, while he was a fugitive from justice,
shows an effort to conceal his identity, which is relevant to show
his consciousness of guilt. See United States v. Levy-Cordero, 67
F.3d 1002, 1011 (1st Cir. 1995) (holding that fake passport and
social security card in defendant’s possession, at time when
defendant knew police were looking to arrest him, admissible under
Rule 404(b) to show consciousness of guilt). Evidence of his
purchases at Costco, however, is not indicative of a guilty
conscience. We find no other relevant purpose, and the government
offers none, for their admissibility.
Mangual has not shown, however, that any error in
admitting the Costco evidence prejudiced his substantial rights.
“To affect substantial rights, an error must have substantial and
injurious effect or influence in determining the verdict.” United
States v. Hebshie, 549 F.3d 30, 44 (1st Cir. 2008) (internal
quotation marks and ellipses omitted).
Mangual contends that the error influenced the verdict
because the Costco evidence, together with his bank account
records, comprised the only evidence produced at trial to support
the charge of conspiracy to commit money laundering and because the
-26-
government referenced his Costco purchases in its closing argument.
The Costco evidence showed that Mangual made a few expensive
purchases at Costco over the course of two months. The jury heard
extensive similar evidence at trial from Antonio and Samuel. They
testified that Mangual spent significant amounts on cars and Jet-
Skis, and at bars, hotels, and cockfights. It is highly unlikely,
therefore, that the Costco evidence had a substantial influence on
the jury’s verdict.
4. Bank Account Activity
Mangual argues that evidence of his bank account
activities was not relevant under Rule 401 and was unfairly
prejudicial under Rule 403.11 Mangual further contends that the
error was not harmless because it was part of the limited evidence
offered at trial to support the charge of conspiracy to commit
money laundering. The government argues that the evidence of
Mangual’s financial activities during the period of the conspiracy
was admissible as evidence of the money laundering conspiracy, and
that evidence of his financial activities after the conspiracy is
relevant because it shows Mangual’s consciousness of guilt.
11
Mangual also argues that he did not receive these documents
until the day they were introduced at trial and that he was
prejudiced by the delayed disclosure. Mangual failed to request a
continuance at that time and has failed to demonstrate the required
prejudice on appeal. See United States v. Van Anh, 523 F.3d 43, 51
n.7 (1st Cir. 2008). We therefore decline to consider the
timeliness of the disclosure.
-27-
Mangual argues that the indictment listed the end-date of
the money laundering conspiracy as December of 2002, and,
therefore, the evidence reflecting his bank account activity
anytime after December 2002 was not relevant and was inadmissible.
Evidence is relevant if it has “any tendency to make the existence
of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the
evidence.” Fed. R. Evid. 401. “To be relevant, evidence need only
tend to prove the government’s case, and evidence that adds context
and dimension to the government’s proof of the charges can have
that tendency. Relevant evidence is not confined to that which
directly establishes an element of the crime.” Flemmi, 402 F.3d at
87 (citing United States v. Gonzalez, 110 F.3d 936, 941 (2d Cir.
1997)) (internal quotation marks omitted).
To establish a conspiracy to commit money laundering
under 18 U.S.C. § 1956(h), the government must prove that the
defendant agreed with one or more coconspirators to
1) knowingly conduct a financial transaction
2) involving funds that [the defendant] knew
to be the proceeds of some form of unlawful
activity and 3) that were in fact the proceeds
of a ‘specified unlawful activity,’ and 4)
that [the defendant] knew the transactions to
be designed in whole or in part to conceal or
disguise the nature, location, source,
ownership, or control of the proceeds of such
unlawful activity.
-28-
United States v. Misla-Aldarondo, 478 F.3d 52, 68 (1st Cir. 2007)
(quoting 18 U.S.C. § 1956(a)(1)(B)(i)) (emphasis supplied).
In establishing the existence of a conspiracy, the
government is not bound by approximate start or end-dates listed in
the indictment; the scope of the conspiracy may extend beyond an
approximate date. See United States v. Paredes-Rodriguez, 160 F.3d
49, 56 (1st Cir. 1998) (“[T]he reference to approximate dates in an
indictment is not binding and thus the scope of the indictment may
cover prior events.”). Further, evidence of actions which occurred
after the conspiracy has ended may also be admissible. See Lutwak
v. United States, 344 U.S. 604, 617 (1953) (“It does not
necessarily follow that acts and declarations made after the
conspiracy ended are not admissible.”); United States v. Fields,
871 F.2d 188, 197 (1st Cir. 1989) (“Evidence of a conspirator’s
post conspiracy activity is admissible if probative of the
existence of a conspiracy or the participation of an alleged
conspirator, ‘even though they might have occurred after the
conspiracy ended.’”) (quoting Anderson v. United States, 417 U.S.
211, 219 (1974)).
Two of Mangual’s checking accounts are at issue. The
first checking account was opened in July of 2002, during the
period of the charged conspiracy, and closed in September of 2003.
The account reflected deposits totaling $177,456 and withdrawals
totaling $177,189. The second account, which Mangual opened in
-29-
December of 2003, also indicated numerous withdrawals and deposits,
each totaling approximately $98,000. Mangual ceased all activity
with the second account on March 15, 2004, twelve days after his
indictment was unsealed.
From 1996 through 2004, Mangual did not file income tax
returns with the Puerto Rico Department of Treasury, yet his bank
accounts reflected the movement of large amounts of money in short
periods of time from July 2002 through March of 2004.12 His
financial activity, coupled with his failure to report his income,
is indicative of an intent to conceal funds, which is relevant
evidence in establishing the existence of, and Mangual’s
participation in, a money laundering conspiracy. See Upton, __
F.3d __, slip op. at 16 (holding that failure to file required tax
return constituted evidence of concealment and an act in
furtherance of money laundering conspiracy);13 United States v.
Hall, 434 F.3d 42, 52 (1st Cir. 2006) (“[C]ash is a frequent by-
product of many kinds of illegal activity [and] converting cash
into useable funds is [therefore] probative of money laundering.”)
(internal quotation marks and ellipsis omitted); United States v.
Leon-Delfis, 203 F.3d 103, 114 (1st Cir. 2000) (“[E]vidence of
12
Mangual does not challenge the admission into evidence of his
failure to file income tax reports.
13
At least one member of this court believes that our holding
in Upton is in tension with the Supreme Court’s ruling in Grunewald
v. United States, 353 U.S. 391 (1957). See Upton, __ F.3d __, slip
op. at 28 (Lipez, J., dissenting).
-30-
possession or control over substantial sums of money from
unexplained sources is relevant in criminal cases involving
money.”). That some of the bank account evidence reflected
activity after December of 2002 does not render the evidence
irrelevant. The indictment listed only an approximate end date of
the conspiracy, which was “no[] earlier than in or about December
2002.” Evidence of his bank account activity after this date,
therefore, may still be considered within the scope of the charged
conspiracy.
Mangual further argues, for the first time on appeal,
that the bank account evidence was unfairly prejudicial. Relevant
evidence “may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice.” Fed. R. Evid. 403.
“Evidence is unfairly prejudicial if it invites the jury to render
a verdict on an improper emotional basis.” United States v.
Rodriguez, 525 F.3d 85, 98 (1st Cir. 2008) (internal quotation
marks omitted). The bank account evidence was not unfairly
prejudicial. The probative value of the evidence was significant
because it indicated an intent to conceal funds in the context of
a money laundering conspiracy. Further, the evidence was neither
“shocking [n]or heinous” and was not of a nature which was likely
to overwhelm the emotions of an ordinary juror. Id. (quoting
United States v. Varoudakis, 233 F.3d 113, 122 (1st Cir. 2000)).
Therefore, the bank account evidence was not admitted in violation
-31-
of Rule 403. Because we find that there was no Rule 403 error, we
need not engage in the plain error analysis.
C. Continuance
Mangual argues that the court erred in denying his
request for a continuance, which he contends was necessary to give
his new attorney adequate time to prepare for trial. He asserts
that the trial schedule deprived him of his right to a fair trial
and the effective assistance of counsel.
The district court’s denial of a requested continuance is
reviewed for abuse of discretion, which is found only where “the
Court exhibited an unreasonable and arbitrary insistence upon
expeditiousness in the face of a justifiable request for delay.”
United States v. Rodriguez-Duran, 507 F.3d 749, 762-63 (1st Cir.
2007). However, the district court’s discretion is “limited by the
defendant[‘s] constitutional rights to effective assistance of
counsel and to the testimony of defense witnesses.” United States
v. Orlando-Figueroa, 229 F.3d 33, 39-40 (1st Cir. 2000). Among the
factors we consider are: “the reasons contemporaneously presented
in support of the request, the amount of time needed for effective
preparation, the complexity of the case, the extent of
inconvenience to others if a continuance is granted, and the
likelihood of injustice or unfair prejudice attributable to the
denial of a continuance.” Rodriguez-Duran, 507 F.3d at 763. “A
defendant is generally not entitled to a new trial unless he or she
-32-
can identify specific ways in which the court’s erroneous denial of
a continuance prejudiced his or her defense.” United States v.
DeCologero, 530 F.3d 36, 79 (1st Cir. 2008).
Mangual filed a pro se motion requesting the withdrawal
of his court-appointed attorney on November 9, 2006, seven days
before his trial was scheduled to begin. The court reset the trial
date, and held a hearing on Mangual’s motion on November 27. At
the hearing, the court granted Mangual’s request and granted a
continuance until January 8, 2007. The court gave Mangual until
December 15, 2006, to hire new counsel.
Mangual’s new counsel, Luis Rafael Rivera (“Rivera”),
made his first appearance on December 15 and by motion filed that
same day, counsel informed the court that he had a scheduled
vacation from December 26, 2006, through January 8, 2007, and
requested a continuance until February 15, 2007, in order to
investigate the charges and prepare for trial. The court did not
respond until January 3, 2007, while Rivera was on vacation, when
it summarily denied the requested continuance.
Mangual was not without fault for waiting to seek removal
of his court-appointed counsel days before his trial was scheduled
to begin in November. Nor was his new counsel without fault for
agreeing to represent Mangual for a trial scheduled in January when
he was planning on leaving the country for vacation. The trial
court, however, never told Mangual or his counsel that no further
-33-
continuances would be granted. Once the court granted Mangual’s
request to remove his counsel and allowed him to hire new counsel,
the court had an obligation to ensure that his counsel had adequate
time to prepare for trial. The government argues that Mangual’s
new counsel had sufficient time to prepare because the evidence
consisted of purely historical testimony and the case did not
involve complex legal issues. The evidence, however, spanned more
than eight years, involving numerous individuals and drug
transactions. The testimony from government witnesses alone lasted
for four days. Mangual’s new counsel had only three and one half
weeks to review the evidence and prepare for Mangual’s trial.
Moreover, the court was aware that counsel would be out of the
country for the majority of this period when it accepted his
appearance and summarily denied Mangual’s request for a
continuance, just five days before trial. The court offered no
justification for its insistence on the January 8 trial date, which
would have delayed the trial by a little over a month.
Under the circumstances of this case, therefore, it was
an abuse of discretion for the trial court to deny Mangual’s
request for a continuance. Despite the court’s error, however,
Mangual is not entitled to a new trial because he has failed to
show on appeal that his defense was prejudiced by the denial. See
id.
-34-
Mangual argues generally that he and his counsel were not
given enough time to prepare his defense. Specifically, he claims
that a continuance would have given him time to produce evidence,
such as receipts, showing that the deposits into his Western Bank
accounts were not the proceeds of drug transactions, but were from
legitimate sales by his company, Diesel Xpress, and from his
earnings through cockfighting. Mangual also claims that with more
time he could have found witnesses to testify that Antonio and
Mangual were not friends, as Antonio claimed, and that Mangual was
in Florida during the times that the government witnesses claimed
he was in Puerto Rico.
Mangual had five months prior to trial, during which he
was represented by court-appointed counsel, to obtain the evidence
he contends would have been beneficial to his case. The Diesel
Xpress receipts he now offers were from his own business, and he
produced them to support a Rule 29 motion filed January 24, just
eight days after the close of evidence. Mangual offers no
explanation as to why the denial of a continuance prevented him
from producing the receipts in time for trial. Mangual also fails
to explain how the denial of the continuance prevented him from
showing that part of his income came from gambling at cockfights.
Moreover, evidence that Mangual gambled at cockfights was
introduced at trial - through the testimony of several government
witnesses. Mangual does not explain what further evidence he would
-35-
have introduced to support his defense, or why additional time
would have allowed him to obtain more evidence.
Mangual next argues that a continuance would have allowed
him to locate witnesses who could impeach Antonio’s testimony that
he and Mangual were friends. The absence of such testimony,
however, did not prejudice his defense. Antonio’s friendship with
Mangual was not material to the case, and Mangual does not dispute
Antonio’s extensive testimony regarding the drug transactions
between them. Further, counsel conducted an effective cross-
examination of Antonio about his relationship with Mangual.
Counsel established that Antonio and Mangual were never
photographed, videotaped, or recorded together, and that Antonio
never visited Mangual’s home. Even without defense witnesses,
therefore, Mangual was able to make his point before the jury.
Mangual also argues that a continuance would have allowed
him to present witnesses to testify that he was in Florida during
times that the government witnesses claimed he was in Puerto Rico.
The three coconspirators never testified, however, as to specific
dates that the drug transactions occurred; they spoke only in terms
of years. It is highly unlikely, therefore, that any witness
presented by Mangual would be able to contradict such broadly-
defined time periods. Further, the indictment charged Mangual with
conspiracy to possess and distribute narcotics in both Puerto Rico
and Florida. Evidence that Mangual was occasionally in Florida
-36-
during the conspiracy period would have done little to support his
defense.
Mangual has failed to show that the district court’s
denial of his request for a continuance caused him prejudice. In
the absence of prejudice, a new trial is not warranted under the
circumstances of this case.
D. Delay
Mangual argues that the 110-day delay in bringing him
before a federal magistrate violated Federal Rule of Criminal
Procedure 5(a) and that the district court erred in refusing to
dismiss the indictment.14 The government acknowledges the delay but
argues that the purpose of Rule 5(a) is to prevent federal
officials from using the delay to obtain a confession and that
because no such tactics are alleged in this case, reversal of
Mangual’s conviction is not warranted.
Rule 5(a) requires that when an individual is arrested in
the United States on a federal arrest warrant, he must be taken
“without unnecessary delay before a magistrate judge.” Fed. R.
Crim. P. 5(a)(1)(A). “After a defendant has been tried and
convicted, . . . delay in bringing him before a magistrate is not
reason to set aside the conviction unless the defendant can show
14
Although the record is not clear, it appears that Mangual was
in state custody during this time, facing state prosecution based
on the items found during the 2006 search of his home in Florida.
Mangual was sentenced for violation of state law on June 21, 2006,
to time served.
-37-
that he was prejudiced by the delay.” United States v. Causey, 835
F.2d 1527, 1529 (5th Cir. 1988); see United States v. Beltran, 761
F.2d 1, 8 (1st Cir. 1985).
Other circuits have held that such prejudice results only
when the government uses the delay to subject the defendant to
unwarranted interrogation. See, e.g., United States v. Cardenas,
410 F.3d 287, 293-94 (5th Cir. 2005); United States v. Garcia-
Echaverria, 374 F.3d 440, 452-53 (6th Cir. 2004); United States v.
Morrison, 153 F.3d 34, 56 (2d Cir. 1998); Theriault v. United
States, 401 F.2d 79, 86 (8th Cir. 1968). In this circuit, we have
not resolved whether other prejudice caused by an unreasonable
delay would require setting aside a conviction. See United States
v. Encarnacion, 239 F.3d 395, 400 n.5 (1st Cir. 2001). We need not
delve into the prejudice issue in this case, however, because
Mangual has not shown prejudice of any kind that was caused by the
delay.
Mangual argues that the 110-day delay between his arrest
in February of 2006 and his arraignment before a federal magistrate
in June of 2006 prejudiced him because it caused him to lose that
time to secure counsel and prepare for trial. The record, however,
belies his claims of prejudice. Mangual retained counsel, who
filed an appearance on Mangual’s behalf in the federal case, on
April 4, 2006. A month later counsel moved to withdraw at
Mangual’s request, representing that “[a]llowing this attorney to
-38-
withdraw from any further legal representation will cause no
prejudice either to the United States of America or the defendant,
nor will it delay the proceedings” and that Mangual “indicated to
[this] attorney [that] he will retain a different attorney upon
being transported to Puerto Rico.” The motion was granted on June
26, 2006. Mangual was subsequently returned to Puerto Rico, made
an initial appearance before the Puerto Rico district court on
August 3, 2006, and counsel was appointed to represent him on
August 7, 2006. At that time, trial was scheduled for November of
2006. This gave Mangual and his new counsel three months to
prepare for trial.
Mangual offers no other claims of prejudice resulting
from the delay. Therefore, he is not entitled to reversal of his
conviction based on the delay between his arrest and his appearance
before a federal magistrate.
III.
For the foregoing reasons, Mangual’s convictions are
affirmed.
-39-
United States v. Mangual-Santiago
Court: Court of Appeals for the First Circuit
Date filed: 2009-04-17
Citations: 562 F.3d 411
Copy Citations