United States Court of Appeals
For the First Circuit
No. 02-1466
UNITED STATES OF AMERICA,
Appellee,
v.
JULIO PEREZ-RUIZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Boudin, Chief Judge,
Selya, Circuit Judge,
and Siler,* Senior Circuit Judge.
Bruce J. McGiverin, by appointment of the court, with whom
Julio Pérez-Ruiz, pro se, was on brief, for appellant.
Thomas F. Klumper, Assistant United States Attorney, with whom
H. S. Garcia, United States Attorney, and Sonia I. Torres, Chief,
Criminal Division, were on brief, for appellee.
December 19, 2003
__________
*Of the Sixth Circuit, sitting by designation.
SELYA, Circuit Judge. Defendant-appellant Julio Pérez-
Ruiz, sometimes known by the sobriquet "Goyito," asks us to reverse
his conviction for conspiracy to distribute narcotics or, in the
alternative, to vacate his sentence. Although we discern no
reversible error with regard to the conviction, we conclude that
the district court sentenced the appellant to life imprisonment in
violation of the rule announced in Apprendi v. New Jersey, 530 U.S.
466 (2000). Because we cannot classify that error as harmless
beyond a reasonable doubt, we vacate the sentence and remand for
resentencing.
I. BACKGROUND
This appeal challenges a myriad of rulings. Accordingly,
we offer a balanced account of the overall facts, consistent with
record support. United States v. Piper, 298 F.3d 47, 50 (1st Cir.
2002). We recount further facts relevant to particular claims in
later sections of this opinion.
On June 29, 2000, a federal grand jury returned a
superseding indictment against several persons. The indictment
charged the appellant, inter alios, with participating in a long-
running conspiracy to distribute multi-kilogram quantities of
controlled substances. See 21 U.S.C. §§ 841(a)(1), 846. After
much procedural skirmishing (the details of which need not concern
us), the case went to trial.
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Based on the trial testimony, the jury plausibly could
have found that the appellant controlled a drug point in the
Caracolas ward of Peñuelas, Puerto Rico. Witnesses testified that
the appellant received narcotics from Francisco Zaeton-Pabon (known
as "Paquito") and employed others to help him peddle the contraband
at the drug point. The government presented evidence that the drug
point was part of a larger drug-trafficking empire presided over by
Miguel A. O'Connor-Colon (known as "La Cabra") and that La Cabra's
organization dealt in a variety of controlled substances (including
heroin, powdered cocaine, and crack cocaine). The government also
presented evidence that the appellant participated in the murder of
Saul Perez, an apostate drug dealer who had broken with La Cabra.
In due course, the jury found the appellant guilty of
participating in the larger drug-trafficking conspiracy. The
district court sentenced him to life imprisonment. This timely
appeal ensued. In it, the appellant presses a salmagundi of
arguments. Most of them — dealing with subjects as diverse as
prejudicial variance, delayed discovery, improper vouching, and
erroneous evidentiary rulings — need not detain us. We dispose of
those flawed challenges in decurtate fashion and then focus our
attention on the appellant's more substantial arguments: (i) his
claim that a government agent improperly bolstered the testimony of
a key cooperating witness, and (ii) his claim of Apprendi error.
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II. PREJUDICIAL VARIANCE
Although the appellant concedes that the jury
instructions were proper and that the evidence, taken in the light
most favorable to the government, permits a finding that he
operated and controlled the Caracolas drug point, he insists that
the evidence does not suffice to ground a finding, beyond a
reasonable doubt, that this drug point was part of La Cabra's
empire. On this basis, he argues that a material variance existed
between the crime charged in the indictment (participating in La
Cabra's master conspiracy) and the crime that the government
actually succeeded in proving (participating in a more modest
conspiracy). This claim requires us to determine whether a
variance occurred and, if so, whether that variance prejudiced the
appellant's substantial rights. See United States v. Arcadipane,
41 F.3d 1, 6 (1st Cir. 1994); United States v. Khoury, 901 F.2d
948, 956 (11th Cir. 1990).
When, as now, a defendant asserts a claim of variance
premised on the notion that multiple conspiracies existed and that
his activities were not part of the charged conspiracy, the initial
question — and the only one that we need to reach here — is one of
evidentiary sufficiency. United States v. Wihbey, 75 F.3d 761,
773-74 (1st Cir. 1996). In conducting our review, we employ the
same framework that we employ in connection with other sufficiency
challenges in criminal cases: we "canvass the evidence (direct and
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circumstantial) in the light most agreeable to the prosecution and
decide whether that evidence, including all plausible inferences
extractable therefrom, enables a rational factfinder to conclude
beyond a reasonable doubt that the defendant committed the charged
crime." United States v. Noah, 130 F.3d 490, 494 (1st Cir. 1997).
Credibility issues must be resolved in favor of the verdict. See
United States v. Alicea, 205 F.3d 480, 483 (1st Cir. 2000). We
must reject the appellant's claim as long as a plausible reading of
the record supports the jury's implied finding that he knowingly
participated in the charged conspiracy. United States v.
Sepulveda, 15 F.3d 1161, 1173 (1st Cir. 1993).
Courts typically look to the totality of the
circumstances in determining whether the proof suffices to
establish a single, overarching conspiracy. Relevant factors may
include such things as "(1) the existence of a common purpose, such
as selling drugs for profit, (2) the interdependency of various
elements in the plan, such as whether the success of an
individual's own drug transactions depends on the health and
success of the drug trafficking network that supplies him, and (3)
the degree of overlap among the participants." United States v.
Soto-Beníquez, ___ F.3d ___, ___ (1st Cir. 2003) [No. 01-1619, slip
op. at 18-19].
There is no cognizable variance here. The jury heard
evidence that the appellant controlled the Caracolas drug point;
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that the drug point was located at the epicenter of La Cabra's
sphere of influence; that Paquito (La Cabra's triggerman and a
self-confessed member of the master conspiracy) supplied the
appellant with narcotics; that the appellant accompanied Paquito
during the assassination of Saul Perez (a murder committed to
further the interests of the master conspiracy); and that the
appellant frequently interacted with other members of La Cabra's
team. At the very least, this evidence permitted a rational
inference that the appellant's drug point was part and parcel of
the master conspiracy. See United States v. LiCausi, 167 F.3d 36,
45 (1st Cir. 1999) ("Whether a single conspiracy or a multiple
conspiracy exists is, of course, a question of fact for the
jury."); see generally United States v. Lara, 181 F.3d 183, 204
(1st Cir. 1999) (stating that "[j]urors are entitled to draw
reasonable inferences from proven facts"). Consequently, we hold
that the jury reasonably could have concluded that the appellant
and La Cabra shared a common purpose; that their operations had the
requisite degree of interdependency; and that, therefore, the
appellant's operation was a subset of La Cabra's master conspiracy.
There was no variance.
III. FAILURE TO GRANT A CONTINUANCE
The appellant's claim that the lower court erred in
declining to grant a continuance after the delayed disclosure of
Brady/Giglio material is easily dispatched. The facts are as
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follows. The government's star witness, Joelle Irizarry, had been
treated in the past at a Puerto Rican prison hospital. Apparently,
the government had obtained Irizarry's prison medical records and
disclosed them to a different defendant in a different case in
which Irizarry was to appear as a witness. One of the lawyers in
that case furnished a copy of the records to the appellant's
attorney after the appellant's trial was under way. During the
defense case, the attorney called the district court's attention to
the records and claimed that the prosecution had intentionally
withheld the mental health information contained therein. This
improper withholding, the attorney alleged, abridged the
appellant's constitutional rights. See Brady v. Maryland, 373 U.S.
83, 87 (1963) (holding that the prosecution violates due process
when it suppresses material evidence favorable to the accused); see
also Giglio v. United States, 405 U.S. 150, 154 (1972) (concluding
that the nondisclosure of impeachment information falls within the
Brady rubric).
Defense counsel requested additional time to inspect the
records. Noting that they had been in counsel's possession for at
least thirty-six hours, the district court denied the request. The
court did, however, offer to allow the appellant to recall Irizarry
for further cross-examination. The appellant eschewed that
opportunity.
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We review the district court's decision to deny a
continuance for abuse of discretion. See United States v.
Saccoccia, 58 F.3d 754, 770 (1st Cir. 1995); United States v.
Devin, 918 F.2d 280, 289 (1st Cir. 1990). We are satisfied that no
such abuse occurred in this case.
When Brady or Giglio material surfaces belatedly, "the
critical inquiry is not why disclosure was delayed but whether the
tardiness prevented defense counsel from employing the material to
good effect." Devin, 918 F.2d at 290. According to the appellant,
the delayed disclosure here, coupled with the trial court's refusal
to grant a continuance, prevented him from pursuing a strategy to
"explore, through cross examination or expert testimony, whether
Irizarry suffered from delusions or some mental condition that
impaired his credibility or ability to perceive and recall events."
Appellant's Br. at 38. There are several reasons why we deem this
argument unpersuasive.
In the first place, some showing of prejudice beyond mere
assertion is required in the delayed disclosure context. United
States v. Smith, 292 F.3d 90, 103 (1st Cir. 2002); United States v.
Walsh, 75 F.3d 1, 8 (1st Cir. 1996). The appellant has made none
(and, thus, has failed to demonstrate that either the delayed
receipt of the records or the court's insistence on going forward
foreclosed a viable strategic option).
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In the second place, a delayed disclosure only leads to
the upsetting of a verdict when there is a reasonable probability
that, had the evidence been disclosed to the defense in a timeous
manner or had the trial court given the defense more time to digest
it, the result of the proceeding would have been different. United
States v. Bagley, 473 U.S. 667, 678 (1985). The events here cannot
pass that screen. A review of the record leaves no doubt about
defense counsel's ability to impeach Irizarry using other evidence,
such as Irizarry's status as both a confessed drug dealer and a
cooperating witness. The ability to mount an effective cross-
examination often is of great significance in delayed disclosure
cases involving impeachment evidence, see, e.g., United States v.
Mooney, 315 F.3d 54, 64 (1st Cir. 2002), and we find it significant
here.
Last — but far from least — the missing records were
neither voluminous nor arcane, and defense counsel had roughly
thirty-six hours in which to scrutinize them before he brought the
matter to the forefront. The district court found that he had had
sufficient opportunity to comprehend their significance and to
consult with an expert if he had so desired. That supportable
finding weighs heavily in favor of the court's decision that more
time was unwarranted. See Saccoccia, 58 F.3d at 770 (considering
"the amount of time previously available for preparation and how
assiduously the movant used that time"). So too does the fact that
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defense counsel refused the court's invitation to recall Irizarry
for further cross-examination. Given the totality of the
circumstances, we cannot say that the trial court abused its
discretion in denying the appellant's request for a continuance.
IV. THE VOUCHING CLAIM
Next, the appellant complains that the prosecutor was
guilty of vouching for the government's witnesses. This complaint
focuses on the following passages of the prosecutor's rebuttal
argument:
! You think, and think about this. If they
were all going to get up and make up a story,
wouldn't it have been a better story?
Couldn't have Joelle come in here and made it
a better story? That every day he was at the
point, I saw Julio come in with Paquito with
all of the bags of heroin. Wouldn't that make
a better story? Couldn't Nazario have said:
I saw Paquito, Goyito. I saw Goyito; I saw
the money being passed.
! [I]f Goyito has nothing to do with Paquito
and his group, why would he participate in the
killing of Saul Perez? Let's go over this,
Joelle is in prison, and he doesn't come out
till 1999. Wouldn't it have been a better
story to say that Goyito (spoke in Spanish),
that he had shot Saul? Wouldn't that be a
better story, wouldn't it, to put the gun in
his hand?
Since the appellant's plaints are raised for the first
time on appeal — he interposed no contemporaneous objections to
these comments — our review is for plain error. Under that
grueling standard, we can reverse only if the appellant
demonstrates "(1) that an error occurred (2) which was clear or
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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.
Duarte, 246 F.3d 56, 60 (1st Cir. 2001). We find no error here,
plain or otherwise.
A prosecutor improperly vouches for a witness when she
places the prestige of her office behind the government's case by,
say, imparting her personal belief in a witness's veracity or
implying that the jury should credit the prosecution's evidence
simply because the government can be trusted. See United States v.
Figueroa-Encarnación, 343 F.3d 23, 28 (1st Cir. 2003). Such
tactics are not to be condoned. They tilt the scales of justice,
risk prejudicing the defendant, and carry the potential for
distracting the jury from its assigned task of assessing
credibility based solely on the evidence presented at trial and the
demeanor of the witnesses.
We do not think that the statements by the prosecutor,
quoted above, constituted vouching or were otherwise improper. As
this court explained in United States v. Rodríguez, 215 F.3d 110,
123 (1st Cir. 2000), "an argument that does no more than assert
reasons why a witness ought to be accepted as truthful by the jury
is not improper witness vouching." Here, the prosecutor was merely
asking the members of the jury to use their common sense in
evaluating the witnesses' testimony. She neither expressed her
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personal opinion regarding the veracity of any witness nor implied
that Irizarry should be trusted because of some connection to the
government.
Moreover, the quoted statements were a logical counter to
the assertions of defense counsel, made in summation, that various
government witnesses had fabricated their testimony because they
wanted the appellant behind bars and would stop at nothing to put
him there. We typically cede prosecutors some latitude in
responding to defense counsel's allegations of fabrication. See,
e.g., United States v. Mejia-Lozano, 829 F.2d 268, 274 (1st Cir.
1987). How much leeway should be accorded may well depend on the
circumstances (the prosecutor's statements would comprise an odd,
and perhaps dubious, argument if there were no charge of
fabrication or something of like nature). Even then, however, the
statements — though possibly questionable on other grounds — would
not amount to vouching.
There is dictum inimical to this view in United States v.
Auch, 187 F.3d 125, 131-32 (1st Cir. 1999), which was embraced in
United States v. Martínez-Medina, 279 F.3d 105, 119-20 (1st Cir.
2002). We disclaim that dictum. Auch, like United States v.
Sullivan, 85 F.3d 743, 750-51 (1st Cir. 1996), rests on an
understandable misreading of United States v. Manning, 23 F.3d 570,
572-73 (1st Cir. 1994). In Manning, this court condemned as
vouching a passage containing a similar argument — that a detective
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who testified for the prosecution would have told a more damaging
story had he been prone to fabricate — but the vouching label was
in fact directed only to the prosecutor's tail-end assertion that
government witnesses do not lie. Id. at 572. Because the
characterizations contained in Auch and Martínez-Medina are dictum,
this panel is not obliged to adhere to them. See Kosereis v. Rhode
Island, 331 F.3d 207, 213 (1st Cir. 2003). We are at liberty to
correct the misunderstanding and now do so. Those statements are
not good law.
V. MISCELLANEOUS EVIDENTIARY RULINGS
The appellant assigns error to a host of evidentiary
rulings. For the most part, we review a trial court's rulings
admitting or excluding evidence for abuse of discretion. Gomez v.
Rivera Rodriguez, 344 F.3d 103, 114 (1st Cir. 2003); Pendleton v.
City of Haverhill, 156 F.3d 57, 64 (1st Cir. 1998). This
deferential standard is not appellant-friendly. Here, moreover,
most of the disputed evidentiary rulings were not the subject of
contemporaneous objections at trial. Because those assigned errors
were not properly preserved, they face the even higher hurdle of
plain error review. See Duarte, 246 F.3d at 60 (describing the
methodology of plain error review). All the appellant's
evidentiary claims fail under one or the other of these tests.
Only two of them require comment.
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The appellant's contention that the district court
improperly denied him an opportunity to recross-examine police
officer Jorge Nazario implicates the Confrontation Clause. U.S.
Const. amend. VI. In the first instance, Confrontation Clause
challenges are reviewed de novo in order to verify that the trial
court afforded the defendant a reasonable opportunity to impeach
adverse witnesses. When that constitutional threshold is crossed,
we examine the trial court's restrictions on the manner and extent
of cross-examination for abuse of discretion. See United States v.
Balsam, 203 F.3d 72, 87 (1st Cir. 2000); United States v. Gomes,
177 F.3d 76, 80-81 (1st Cir. 1999).
It is crystal clear that the district court afforded the
appellant ample opportunity to confront Officer Nazario's testimony
about the Perez murder. It granted defense counsel a recess after
the conclusion of direct examination and did nothing to limit the
length of what proved to be a protracted (and skillfully conducted)
cross-examination. We need only ask, therefore, whether the denial
of recross-examination constituted an abuse of discretion. See
Balsam, 203 F.3d at 87. We conclude that it did not.
We need not tarry. The district court cited a valid
concern — the lack of new information on redirect — as the main
reason for its prohibition of recross-examination, and the record
attests to the accuracy of the court's perception. To cinch
matters, the prospect of redundancy was confirmed when the court,
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in an abundance of caution, allowed counsel to expound on the line
of questioning that he wished to pursue. Under the circumstances
of this case, there is no principled way that we can characterize
the denial of recross-examination as an abuse of discretion. After
all, a trial judge surely may limit cross-examination that will be
merely cumulative. See Delaware v. Van Arsdall, 475 U.S. 673, 679
(1986) (recognizing that trial judges retain wide latitude to
impose reasonable limits on cross-examination "that is repetitive
or only marginally relevant"); United States v. Boylan, 898 F.2d
230, 254 (1st Cir. 1990) (affirming trial judges' prerogative to
set appropriate boundaries so that litigants do not "run roughshod"
during cross-examination).
We also single out the appellant's objection to testimony
about a hearsay statement of an alleged coconspirator. During
direct examination, Irizarry testified that the appellant had shot
Jessi Quinones-Torres in the arm because of a longstanding drug-
related dispute. When asked how he knew this, Irizarry responded
that Quinones-Torres had told him about the incident. At this
point, the appellant raised a hearsay objection. Since the
evidence showed that Quinones-Torres was operating a drug point
within the scope of the master conspiracy, the district court
overruled the objection and provisionally admitted the statement
under Fed. R. Evid. 801(d)(2)(E).
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Evidence Rule 801(d)(2)(E) allows the introduction of a
statement made "by a coconspirator of a party during the course and
in furtherance of the conspiracy." When the government proffers
such evidence in a criminal case, it bears the burden of
establishing, by a preponderance of the evidence, "that a
conspiracy embracing both the declarant and the defendant existed,
and that the declarant uttered the statement during and in
furtherance of the conspiracy." Sepulveda, 15 F.3d at 1180. "If
these conditions are met and if there is corroboration in the form
of extrinsic evidence of the declarant's involvement in the
conspiracy, then the hearsay barrier is avoided and the statement
may be admitted." United States v. Bradshaw, 281 F.3d 278, 283
(1st Cir. 2002).
In Bradshaw, we noted that:
This court has constructed a model for the
handling of evidence proffered under Rule
801(d)(2)(E). That model authorizes the trial
court to admit conditionally alleged
coconspirator statements. At the close of all
the evidence, the court then makes a final
determination as to the admissibility of the
evidence. If the court ultimately concludes
that the provisionally admitted evidence does
not satisfy the applicable standard, it must
give a cautionary instruction to the jury, or,
upon an appropriate motion, declare a mistrial
if the instruction will not suffice to cure
any prejudice.
Id. (citations and internal quotation marks omitted). The trial
court's final determination is known in this circuit as a
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Petrozziello determination. See United States v. Petrozziello, 548
F.2d 20, 23 (1st Cir. 1977).
The appellant asserts that he interposed an objection to
the challenged testimony. That is true as far as it goes — but it
does not take him very far. The appellant neglected to renew this
objection at the close of all the evidence so as to obtain a
Petrozziello determination. That step is plainly required under
our precedents. See, e.g., United States v. Newton, 326 F.3d 253,
257 (1st Cir. 2003) (holding that preservation of a hearsay
objection to the admission of a coconspirator's statement
necessitates renewing the objection at the close of the evidence);
United States v. Woods, 210 F.3d 70, 78 (1st Cir. 2000) (same).
Thus, we review the admission of the challenged statement only for
plain error. Woods, 210 F.3d at 78. We descry none here.
VI. THE BOLSTERING CLAIM
The appellant maintains that the prosecution improperly
bolstered Irizarry's credibility when Ivan Lugo, an agent of the
Drug Enforcement Administration (DEA), testified as to both
Irizarry's confirmed reliability as an informant in an unrelated
investigation (involving the Tibes housing project gang) and the
methods that he (Lugo) employed to corroborate Irizarry's out-of-
court statements regarding the murder of Saul Perez. Because the
parties disagree as to the appropriate standard of review, we start
there.
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To preserve a claim of error in the admission of
testimony, a party ordinarily must interpose a contemporaneous
objection to the question posed. See Fed. R. Evid. 103(a). But
lawyers are not required to be prescient. Consequently, they are
not required to object to proper questions in anticipation of
unresponsive or otherwise inappropriate answers. 21 Charles A.
Wright et al., Federal Practice and Procedure § 5037, at 187 (1st
ed. 1977 & Supp. 2003) (collecting cases). When a proper question
elicits an untoward reply, the failure to object to the question is
excused so long as the aggrieved party promptly moves to strike the
offending answer. See id. at 188-90.
On direct examination, Lugo testified that he had
attempted to corroborate most of the information provided by
Irizarry about the Tibes gang. Immediately after Lugo made this
statement, defense counsel lodged a bolstering objection. The
court correctly overruled the belated objection — both the question
("I ask you, after learning that information [about the existence
of several gangs], what, if anything, did you do?") and Lugo's
carefully circumscribed answer were proper.
Lugo's subsequent testimony was considerably more
problematic. Among other things, he professed his belief in the
accuracy of Irizarry's statements about the Tibes gang and
vouchsafed that there were "several other witnesses, several other
cooperating sources" who could corroborate Irizarry's testimony
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linking the appellant to La Cabra's organization. But the
appellant neither interposed any further objection nor moved to
strike these answers. Hence, our review is for plain error.
The impropriety of the last-mentioned testimony is
readily apparent. It is black-letter law that "prosecutors may not
place the prestige of the United States behind a witness by making
personal assurances about the credibility of a witness or by
indicating that facts not before the jury support the witness's
testimony." United States v. Rosario-Diaz, 202 F.3d 54, 65 (1st
Cir. 2000) (citing United States v. Neal, 36 F.3d 1190, 1207-08
(1st Cir. 1994)). It follows inexorably that the prosecution
cannot prop up a dubious witness by having a government agent place
the stature of his office behind the witness. Id. Although the
prosecution's success often depends on its ability to convince the
jury of a particular witness's credibility, it cannot entice the
jury to find guilt on the basis of a DEA agent's opinion of the
witness's veracity.
Lugo's testimony constitutes a flagrant breach of these
standards. It invited the jury to give weight to his belief that
Irizarry had told the truth during the investigation of the Tibes
gang. Equally as improper was Lugo's ipse dixit that "several
other witnesses" — none of whom were identified — had purportedly
corroborated Irizarry's testimony about the appellant's involvement
in Saul Perez's murder. In these ways, Lugo placed the prestige of
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his lengthy government service behind Irizarry's statements.
Furthermore, the reliance on "evidence" not before the jury
constituted an independent (and even more serious) lapse. See
Balsam, 203 F.3d at 88 (condemning a prosecutor's reliance on facts
outside the record to support a prosecution witness). The
challenged testimony was improper and never should have seen the
light of day. See, e.g., United States v. Martinez, 253 F.3d 251,
253-54 (6th Cir. 2001); Rosario-Diaz, 202 F.3d at 65-66. To make
a bad situation worse, this hardly seems to be an innocent lapse.
Lugo was a veteran DEA agent and had an obvious interest in
bolstering Irizarry's credibility.
Having found improper bolstering, we apply the test for
plain error. See Duarte, 246 F.3d at 60-62. The first two
requirements are easily satisfied: it was error of the most
glaring sort to place the challenged testimony before the jurors.
We proceed, then, to the third and fourth steps of the plain error
pavane.
The appellant emphasizes that Irizarry's credibility was
very important to the case against him and claims, on that basis,
that Lugo's ill-conceived testimony affected his substantial
rights. This claim fails for two principal reasons.
First, Irizarry's testimony was scarcely the sine qua non
of the government's case. The jury may well have based its verdict
on Officer Nazario's testimony. Nazario stated that he observed
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the appellant exchanging money with people on the street and
consorting with both Paquito — a confirmed member of the La Cabra
conspiracy — and Irizarry. Moreover, Nazario testified that he had
learned first-hand of the appellant's leadership position in the
drug conspiracy when the appellant apologized on behalf of an
underling who had left a used syringe in Nazario's backyard. This
testimony, in combination with other evidence, was potent enough to
prove the government's case.
Second, and perhaps more critical to our analysis, Lugo's
improper bolstering appears to have played a very modest role in
the unfolding drama of the trial. The prosecutor wisely refrained
from referring to that testimony during closing arguments and
reminded the jurors several times that it was their responsibility
to assess the credibility of the witnesses. The district court's
instructions sounded a similar theme. Viewed in this light, we
conclude that Lugo's bolstering, while deserving of reproof, did
not affect the appellant's substantial rights. Consequently, the
incident does not require vacation of the conviction.
VII. THE APPRENDI CLAIM
While the appellant's multi-pronged attack on his
conviction fails, his assault on his sentence has more bite. His
main argument is that the district court neglected to submit
critical questions involving drug type and quantity to the jury as
required by Apprendi, 530 U.S. at 490.
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We begin this phase of our analysis with a preliminary
question concerning the standard of review. The government argues
that plain error review is appropriate because the appellant
neither objected to the jury instructions (which omitted any
meaningful reference to drug type and quantity) nor requested a
special verdict form (which presumably would have required the jury
to determine drug type and quantity). The problem with this
argument is that it imputes to the defendant a nonexistent duty.
A party's obligation to object to an erroneous jury instruction
endures only to the extent that the instruction is inimical to his
cause. By like token, a party's obligation to object to the
court's eschewal of a special verdict form endures only to the
extent that the omission is inimical to his cause. The appellant
had no interest in ensuring his eligibility for a longer sentence,
and, thus, had no obligation to object here. In order to preserve
a claim of Apprendi error for appeal, it is enough that a defendant
offer a timely objection at sentencing to the imposition or
proposed imposition of a term that exceeds the applicable statutory
maximum. See United States v. Nelson-Rodriguez, 319 F.3d 12, 47
(1st Cir. 2003).
The appellant fulfilled this prerequisite. He broached
the Apprendi issue in his objections to the presentence
investigation report (PSI Report) and renewed those objections
during the disposition hearing. Consequently, the Apprendi claim
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was fully preserved and we will review it under the usual standard.
Plain error is not the benchmark here.
We turn next to the district court's sentencing
determination. The record makes manifest the district court's
reliance on the PSI Report. That report identified 21 U.S.C. §
841(b)(1)(A), which sets the maximum available punishment at life
imprisonment, as the relevant penalty provision.1 The district
court proceeded to apply the murder cross-reference, USSG
§2D1.1(d)(1), to arrive at a base offense level of 43. It then
determined that the appellant had assumed a supervisory role in the
charged conspiracy and added two levels. See id. §3B1.1(c).
Based on this total offense level (45) and the appellant's prior
criminal record (which placed him in criminal history category II),
life imprisonment became the only available sentencing option. See
id. Ch.5, Pt.A (sentencing table). The court imposed sentence
accordingly. Beyond the language of the indictment and the choice
of the applicable penalty provision, see supra note 1, there is
nothing in the record to suggest that the court made any
independent findings regarding the drug types and quantities
attributable either to the conspiracy as a whole or to the
appellant.
1
That statute enumerates the penalties for, inter alia, the
distribution of one or more kilograms of heroin, five or more
kilograms of cocaine, and 50 or more grams of cocaine base. The
superseding indictment alleged the distribution of these same
amounts.
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This methodology gives us pause. Apprendi's core
principle is that, "[o]ther than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt." 530 U.S. at 490. Apprendi does
not prohibit a sentencing court from making factual findings that
increase a defendant's sentence (including findings as to drug type
and quantity) as long as the sentence imposed is within the default
statutory maximum. See United States v. Caba, 241 F.3d 98, 101
(1st Cir. 2001). Nevertheless, drug type and quantity must be
determined by the jury before a defendant may receive a sentence in
excess of the default statutory maximum. Martínez-Medina, 279 F.3d
at 121-22.
In this case, the district court's determination that
the default statutory maximum encompassed life imprisonment removed
Apprendi from the decisional calculus. But that determination
depended upon the court's choice of 21 U.S.C. § 841(b)(1)(A) as the
applicable penalty provision (and, thus, the source of the
statutory maximum). This would have been a correct choice had the
jury found that the charged conspiracy involved the drug quantities
listed in that statutory provision and charged in the indictment —
but the jury made no such finding.
Where, as here, a defendant is accused of distributing
heroin, cocaine, and cocaine base in violation of 21 U.S.C. §
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841(a), the default statutory maximum derives from 21 U.S.C. §
841(b)(1)(C). See United States v. LaFreniere, 236 F.3d 41, 49
(1st Cir. 2001) (explaining that the catchall provision of section
841(b)(1)(C) contains the correct statutory maximum for substances
classified under Schedules I and II). That makes the default
statutory maximum 20 years.2 See United States v. Robinson, 241
F.3d 115, 118 (1st Cir. 2001). For this case to have triggered a
higher statutory maximum, the jury would have had to have found,
beyond a reasonable doubt, that the conspiracy was responsible for
the distribution of drugs in amounts at least equal to the
quantities described in 21 U.S.C. § 841(b)(1)(B) (e.g., 100 grams
of heroin, 500 grams of cocaine, or five grams of cocaine base).
And for the case to have triggered a statutory maximum extending to
life imprisonment, the jury would have had to have found, beyond a
reasonable doubt, that the conspiracy was responsible for the
distribution of drugs in amounts at least equal to the quantities
described in 21 U.S.C. § 841(b)(1)(A) (e.g., one kilogram of
heroin, five kilograms of cocaine, or 50 grams of cocaine base).
The jury's findings would be readily ascertainable if the
court had required it to complete and return a special verdict
2
Citing 21 U.S.C. § 841(b)(1)(D), the appellant urges us to
find that the default statutory maximum for purposes of this case
is five years. He is wrong: that is the default statutory maximum
for offenses involving marijuana. See Derman v. United States, 298
F.3d 34, 42 (1st Cir. 2002). Here, however, the superseding
indictment accused the appellant of conspiring to distribute
heroin, cocaine, and cocaine base — not marijuana.
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form. See, e.g., United States v. Knight, 342 F.3d 697, 709 (7th
Cir. 2003). Here, however, the government did not suggest such a
course and no detailed questions were submitted to the jury. We
must therefore examine the indictment and jury instructions to
ascertain what findings can be ascribed to the jury. See, e.g.,
Soto-Beníquez, ___ F.3d at ___ [slip op. at 83-84]; Nelson-
Rodriguez, 319 F.3d at 45.
The superseding indictment charged in pertinent part that
the appellant and his coconspirators
did, knowingly and intentionally, combine,
conspire, and agree with each other and with
divers other persons to the grand jury known
and unknown, to commit an offense against the
United States, to wit, to knowingly and
intentionally distribute multi-kilogram
quantities of controlled substances, that is
to say, in excess of one (1) kilogram of
heroin, a Schedule I Narcotic Drug Controlled
Substance, in excess of five (5) kilograms of
cocaine, a Schedule II Narcotic Drug
Controlled Substance, in excess of fifty (50)
grams of cocaine base, a Schedule II Narcotic
Drug Controlled Substance, as prohibited by
Title 21, United States Code, Section
841(a)(1).
By specifying drug types and quantities, the indictment laid the
appropriate groundwork; it put the appellant on notice that he
could face a life sentence. Without more, however, the language of
the indictment does not evince that the jury, by the naked act of
returning a guilty verdict, actually found the appellant
responsible for the described drug types and quantities. The jury
instructions must supply a proper linkage. See United States v.
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Westmoreland, 240 F.3d 618, 633 (7th Cir. 2001) ("Apprendi requires
drug quantity — when it subjects a defendant to an enhanced
sentence — to be both charged in the indictment and submitted to
the jury.").
The jury instructions in this case did not supply that
linkage. They did not advise the jury that it must find the
defendant guilty beyond a reasonable doubt of conspiracy to
distribute, at a minimum, the drug types and quantities described
in the indictment. Indeed, the court only mentioned drug types and
quantities once during its charge:
Let's say something about the underlying
crime, which is possession of narcotics with
intent to distribute. In the indictment the
charge regarding controlled substances is that
this was a conspiracy to possess with intent
to distribute in excess of one kilo of heroin,
in excess of five kilos of cocaine, and in
excess of 50 grams of cocaine base, all
controlled substances under Schedule I or
Schedule II of the federal law, in violation
of Section 21 U.S. Code, Section
841(a)(1)(A)(1) [sic].
The government asserted at oral argument that this lone
reference, coupled with an unrelated instruction (that in order to
find the appellant guilty of conspiracy, the jury had to find
beyond a reasonable doubt that "the agreement specified in the
indictment . . . to possess with intent to distribute controlled
substances" actually existed), made the general verdict tantamount
to a sufficient jury finding of drug types and quantities. That is
too much of a stretch. Notwithstanding the government's artful
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cutting and pasting, the jury instructions, read as a whole, did
not forge the necessary link: they omitted any connection between
(a) drug types and quantities, and (b) the requirement that these
facts be proven beyond a reasonable doubt. Absent either a special
verdict form or a suitably focused jury instruction (requiring a
finding beyond a reasonable doubt, that the appellant had knowingly
participated in a conspiracy to distribute one kilogram or more of
heroin, or five kilograms or more of cocaine, or 50 grams or more
of cocaine base), the verdict did not cure the potential Apprendi
problem. See Manual of Model Criminal Jury Instructions §
6.21.846A.1 at 490 (8th Cir. 2003) (explicating recommended jury
instructions for "Apprendi-Affected Conspiracy"); cf. Knight, 342
F.3d at 709 (recognizing the need to modify pattern jury
instructions for drug-trafficking cases in response to Apprendi).
The boilerplate verdict sheet, which directed the jury to find the
defendant guilty or not guilty "as charged in . . . the
Indictment," did not rectify this omission. See Nelson-Rodriguez,
319 F.3d at 45. Nor did the fact that the court sent a copy of the
indictment into the jury room. See Soto-Beníquez, ___ F.3d at ___
[slip op. at 83-84].
Because the issue of drug type and quantity was not
properly submitted to the jury, the statutory maximum remained at
20 years. See 21 U.S.C. § 841(b)(1)(C). In sentencing the
appellant to a term of imprisonment beyond that outer limit — life
-28-
— the district court committed an Apprendi error. See United
States v. Bailey, 270 F.3d 83, 88-89 (1st Cir. 2001).
The appellant argues, in his pro se supplemental brief,
that this Apprendi error is structural (and, thus, automatically
requires vacation of his sentence). Cf. Vasquez v. Hillery, 474
U.S. 254, 263-64 (1986) (granting habeas relief because systematic
exclusion of African-Americans from a grand jury constitutes
structural error). But the Apprendi error in this case — the
failure to submit the necessary drug type and quantity questions to
the jury — is not a structural error. An Apprendi error is not a
"defect affecting the framework within which the trial proceeds,"
but, rather, "simply an error in the trial process itself."
Arizona v. Fulminante, 499 U.S. 279, 310 (1991); cf. Sepulveda v.
United States, 330 F.3d 55, 60 (1st Cir. 2003) (declining to
characterize Apprendi as a watershed rule of criminal procedure for
retroactivity purposes). Accordingly, we join several of our
sister circuits in holding that the failure to submit appropriate
drug type and quantity questions to the jury does not constitute
structural error. See United States v. McDonald, 336 F.3d 734, 738
(8th Cir. 2003); United States v. Stewart, 306 F.3d 295, 319-23
(6th Cir. 2002); United States v. Carter, 300 F.3d 415, 428 (4th
Cir. 2002) (per curiam); United States v. Adkins, 274 F.3d 444, 454
(7th Cir. 2001); United States v. Vazquez, 271 F.3d 93, 103 (3d
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Cir. 2001); United States v. Smith, 240 F.3d 927, 930 (11th Cir.
2001).
We turn next to the government's averment that the
sentence may stand because the Apprendi error did not affect the
appellant's substantial rights. This is a harmless error argument,
see Fed. R. Crim. P. 52(a), and the nature of the error determines
the appropriate test for harmlessness.
In the case of most non-structural errors, an error is
harmless (and, thus, does not affect substantial rights) if it can
be said with fair assurance that the error did not have a
substantial and injurious effect upon the verdict. See Kotteakos
v. United States, 328 U.S. 750, 764-65, 776 (1946); United States
v. Ladd, 885 F.2d 954, 957 (1st Cir. 1989). A different test
applies, however, when a non-structural error is of constitutional
dimension. In that event, the government must prove that the error
was harmless beyond a reasonable doubt, or, put another way, that
it can fairly be said beyond any reasonable doubt that the assigned
error did not contribute to the result of which the appellant
complains. Neder v. United States, 527 U.S. 1, 15 (1999); Chapman
v. California, 386 U.S. 18, 24 (1967). An Apprendi error is of
constitutional magnitude. See United States v. Nealy, 232 F.3d
825, 829-30 (11th Cir. 2000). Hence, we use the latter standard
here.
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It is against this backdrop that we undertake whole-
record review. We pause first, however, to complete the legal
framework. Although it is true that we require a defendant-
specific determination of drug quantity as a benchmark for
individualized sentencing under the guidelines, see United States
v. Bradley, 917 F.2d 601, 604 (1st Cir. 1990); USSG §1B1.3, the
statutory maximum in a drug conspiracy case derives from a
conspiracy-wide perspective:
[A] judge lawfully may determine the drug
quantity attributable to [a particular]
defendant and sentence him accordingly (so
long as the sentence falls within the
statutory maximum made applicable by the
jury's conspiracy-wide drug quantity
determination).
Derman v. United States, 298 F.3d 34, 43 (1st Cir. 2002); accord
Soto-Beníquez, ___ F.3d at ___ [slip op. at 89]; Nelson-Rodriguez,
319 F.3d at 46; see also United States v. Cotton, 535 U.S. 625,
633-34 (2002) (finding no plain error based on the Court's
appraisal of "[t]he evidence that the conspiracy involved at least
50 grams of cocaine base") (emphasis supplied). In drug-
trafficking cases involving Apprendi errors, we sometimes have
treated the presence of "overwhelming evidence" of the requisite
drug types and quantities as a proxy for harmlessness. See Soto-
Beníquez, ___ F.3d at ___ [slip op. at 86]; Nelson-Rodriguez, 319
F.3d at 45-49; Bailey, 270 F.3d at 89. Under that formulation, an
error involving the failure to submit appropriate drug type and
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quantity questions to the jury can be viewed as harmless if
overwhelming evidence adduced at trial shows that, during the time
frame described in the indictment, the conspiracy encompassed types
and quantities of drugs sufficient to trigger a statutory maximum
equal to or above the sentence actually imposed on the individual
defendant.3 In this case, then, the government has the burden of
showing harmlessness by pointing to overwhelming evidence that the
charged conspiracy distributed a minimum of one kilogram of heroin,
five kilograms of cocaine, or 50 grams of cocaine base (the
alternative quantities described in 21 U.S.C. § 841(b)(1)(A)).
The evidence here permits a reasonable inference that the
charged conspiracy engaged in large-scale drug trafficking. But
the government did not focus on the quantity issue and seems to
have dealt mainly in generalities. Given the tenuous nature of the
proof of drug weights, it would strain credulity to characterize as
"overwhelming" the evidence of drug quantity attributable to the
conspiracy as a whole.
As conceded by the government at oral argument, there
were only three times during the trial when actual drug quantities
were mentioned. First, Irizarry testified that in the fall of 1998
3
This rule applies in routine drug-trafficking cases (like the
case at hand). Cases in which the government has charged either
"death or serious bodily injury result[ing] from the use of [a
controlled substance]" or commission of the offense of conviction
"after a prior conviction for a felony drug offense has become
final," 21 U.S.C. § 841(b)(1), must be examined according to a
somewhat different paradigm.
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he bought "a quarter" of cocaine in Caguas for the appellant.
Second, Frankie Pietri Sepulveda testified that in the mid-1990s he
supplied La Cabra with "two or three or four kilos" of cocaine on
"several" occasions, amounting to a total of "more than 15"
kilograms of cocaine. Third, Lugo estimated, without elaboration,
that the drug ring distributed "over 150 kilograms of cocaine, over
1.5 kilograms of crack cocaine, and over a kilogram of heroin."
These references leave much to be desired. Irizarry's
colloquial description fails to specify an actual drug weight, and
it could be argued that Sepulveda's testimony is off point because
La Cabra may have used the described cocaine for purposes other
than to fuel the charged conspiracy. That leaves Lugo's testimony.
We do not believe that it can carry the day: Lugo failed to
provide any factual basis for his estimate and that omission
dilutes its probative value.
We have refused in the past to place blind reliance on
conclusory statements of drug quantity similar to Lugo's estimate,
see, e.g., United States v. Rivera-Maldonado, 194 F.3d 224, 228-30,
233 (1st Cir. 1999), and we see no reason to discard that cautious
policy today. Although lack of detail generally goes only to
weight, it is highly pertinent to a harmless error analysis — and
we are entitled to be chary about making a Chapman determination
based solely on the conclusory testimony of a non-participant. If
the government expects its witnesses' conclusions to be taken as
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strongly probative, the least that it can do is to elicit a
sufficient factual foundation to support those conclusions.
These slim evidentiary pickings place this case at a
considerable remove from the cases in which courts have found
overwhelming evidence of drug type and quantity. Unlike most of
those cases, the instant case did not include testimony describing
quantities of drugs actually seized from coconspirators. See,
e.g., Knight, 342 F.3d at 712; United States v. Mendoza-Gonzalez,
318 F.3d 663, 674 (5th Cir. 2003); United States v. Anderson, 236
F.3d 427, 429-30 (8th Cir. 2001) (per curiam). Nor was this a case
in which the evidence tying the defendant to the charged conspiracy
involved drugs that were indisputably in excess of the requisite
amounts. See, e.g., Soto-Beníquez, ___ F.3d at ___ [slip op. at
88]; Nelson-Rodriguez, 319 F.3d at 48-51.
To be sure, the sketchiness of the evidence of drug type
and quantity does not undermine the conviction: the jury
appropriately could have found the appellant guilty of
participating in the charged conspiracy, with or without finding
that the venture involved trafficking on the scale required to
trigger the penalty provisions of 21 U.S.C. § 841(b)(1)(A). But
that is scant comfort for a Chapman harmlessness analysis. Even
though the evidence, taken in the light most favorable to the
government, would be enough to sustain a jury finding of the
threshold amounts, more is required to show harmlessness beyond a
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reasonable doubt. Concluding, on this exiguous record, that the
proof constituted overwhelming evidence of the necessary threshold
amounts would be unreasonable. See Bailey, 270 F.3d at 89-90.
That ends our inquiry. Because the government has failed
to carry its burden of establishing that the Apprendi error was
harmless beyond a reasonable doubt, we vacate the appellant's
sentence and remand for resentencing within the parameters of 21
U.S.C. § 841(b)(1)(C). Even if the district court still sees fit
to apply the murder cross-reference found in USSG §2D1.1(d)(1) — a
matter on which we take no view4 — it may not increase the term of
imprisonment beyond a maximum of 20 years. See USSG §5G1.1(a)
("Where the statutorily authorized maximum sentence is less than
the minimum of the applicable guideline range, the statutorily
authorized maximum sentence shall be the guideline sentence.").
4
We mention this cross-reference for a reason. While our
resolution of the Apprendi issue renders it unnecessary for us to
rule on the remainder of the appellant's sentencing arguments, we
note that the district court failed to respond to an issue that the
appellant raised in his objections to the PSI Report vis-à-vis his
alleged involvement in the Perez murder. This failure to address
the appellant's objection was error. See Fed. R. Crim. P.
32(i)(3)(B). The court then proceeded to apply the murder cross-
reference without making an explicit finding (though perhaps one
might be implied) that the government had shown by a preponderance
of the evidence that the appellant bore responsibility for the
slaying. If, on remand, the sentencing court again chooses to
apply the cross-reference, it should take care to make a more
complete record of the basis for doing so.
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VIII. CONCLUSION
We need go no further. For the reasons elucidated above,
we affirm the appellant's conviction, vacate his sentence, and
remand for further proceedings consistent with this opinion.
Affirmed in part, vacated in part, and remanded.
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