United States v. Santiago

UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

No. 93-2246

UNITED STATES OF AMERICA,

Appellee,

v.

LUIS A. SANTIAGO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

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

Before

Selya, Circuit Judge,

Aldrich, Senior Circuit Judge,

and Stahl, Circuit Judge.

George F. Gormley, with whom John D. Colucci and Gormley &

Colucci, P.C. were on brief, for appellant.

Luis A. Santiago on supplemental brief pro se.

Helene Kazanjian, Assistant United States Attorney, with

whom Jay P. McCloskey, United States Attorney, and Jonathan R.

Chapman, Assistant United States Attorney, were on brief, for

appellee.

May 1, 1996

*Of the District of Puerto Rico, sitting by designation.

SELYA, Circuit Judge. A jury empaneled in the United
SELYA, Circuit Judge.

States District Court for the District of Maine found defendant-

appellant Luis A. Santiago guilty of a single count of conspiracy

to possess and distribute heroin, 21 U.S.C. 846, and the

district court sentenced him as a career offender. Santiago now

challenges his conviction and sentence. We affirm.

I.
I.

Background
Background

We limn the facts in the light most congenial to the

verdict, consistent with record support. See, e.g., United

States v. Maraj, 947 F.2d 520, 522 (1st Cir. 1991).

The overarching conspiracy that the government charged

in the indictment and attempted to portray at trial pirouetted

around Wilfredo Figueroa, a Lawrence, Massachusetts drug dealer.

Figueroa began his career as a purveyor of cocaine. In 1991, he

shifted his attention to heroin. He soon built up a roster of

approximately fifteen clients, all from Maine. In a typical

transaction a client would call Figueroa from Maine, order a

certain quantity of heroin, and then sojourn to Lawrence to take

delivery. Occasionally a client would appear on Figueroa's

doorstep without any prearrangement, and Figueroa would

improvise.

In effect, Figueroa acted as a middleman (or so the

jury could have found). From October 1991 forward, he had two

suppliers: Angel Soto and the appellant. Figueroa patronized

Soto as his principal supply source but turned to the appellant

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whenever Soto could not fill an order. Furthermore, some of

Figueroa's clients preferred the "brand" of heroin that the

appellant carried, and Figueroa invariably used Santiago as his

source of supply whenever a client ordered that brand.1

When Figueroa asked for heroin, the appellant would

either deliver the drugs personally or arrange for their

delivery. All the deliveries took place in Massachusetts.

Figueroa (who cooperated with the government and testified at the

trial) stated that he purchased an average of fifty bags of

heroin a day from the appellant at $15 apiece, often on credit.

Although the appellant claims that he never met any of the retail

customers, the government presented evidence that contradicted

this assertion; and, moreover, Figueroa testified that he

informed the appellant that all his clients were coming from

Maine to Massachusetts to buy heroin.

Figueroa's involvement in the drug trade followed a

hallowed family tradition. His uncle, Roberto Figueroa, dealt

drugs in Maine. Blood may be thicker than water, but it is by no

means thicker than self-interest. When lawmen closed in on

Roberto Figueroa's operation he threw his nephew to the wolves in

hopes of mitigating his own punishment. To help set the snare,

Roberto ordered 130 bags of heroin from his compliant nephew and

demanded delivery in Maine. The appellant sold fifty bags of

1Santiago (who wrapped individual doses of heroin in
plastic) and Soto (who used paper bags) packaged their products
differently. Clients identified their preference for one brand
over another by reference to the packaging.

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heroin to Figueroa and Soto supplied the remainder. On January

15, 1992, Figueroa and Soto exchanged the drugs for cash at a

designated rest area alongside the Maine Turnpike and were

promptly arrested. The authorities apprehended the appellant in

Massachusetts and, without objection, removed him to Maine for

trial. He was convicted and sentenced in due course. This

appeal ensued.

II.
II.

Analysis
Analysis

A.
A.

Sufficiency of the Evidence
Sufficiency of the Evidence

The appellant who is represented by fresh counsel on

appeal argues that the government presented insufficient

evidence to justify a conviction. Since the appellant did not

preserve a sufficiency challenge by moving for judgment of

acquittal at the close of all the evidence, see Fed. R. Crim. P.

29, our review is limited to the prevention of clear and gross

injustice. See United States v. Taylor, 54 F.3d 967, 975 (1st

Cir. 1995); United States v. McDowell, 918 F.2d 1004, 1009-10

(1st Cir. 1990).

To determine a sufficiency challenge, we customarily

inquire whether the evidence, taken in the light most favorable

to the government a perspective that requires us to draw every

plausible inference in line with the verdict and to resolve every

credibility conflict in the same fashion permitted a rational

jury to find each essential element of the offense of conviction

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to have been proven beyond a reasonable doubt. See United States

v. Olbres, 61 F.3d 967, 970 (1st Cir.), cert. denied, 116 S. Ct.

522 (1995); Maraj, 947 F.2d at 522-23. In a conspiracy case, as

in virtually any other criminal case, the government can meet

this burden by either direct or circumstantial evidence, or by

any combination thereof. See United States v. Echeverri, 982

F.2d 675, 679 (1st Cir. 1993); United States v. David, 940 F.2d

722, 735 (1st Cir. 1991), cert. denied, 502 U.S. 1046 (1992).

The appellant's sufficiency challenge is lacking in

merit. Under the statute of conviction, 21 U.S.C. 846, it was

incumbent upon the government to establish that the appellant

agreed with Figueroa (and, according to the indictment, possibly

"other persons"), at least tacitly, to commit the substantive

crime heroin distribution, see 21 U.S.C. 841(a)(1) &

(b)(1)(C) which constituted the object of their agreement, and

that he thereafter participated in the conspiracy knowingly and

voluntarily. See Echeverri, 982 F.2d at 679. The record here

satisfies those criteria.

To be sure, the appellant makes an impassioned plea

that the evidence shows no more than a buyer-seller relationship

between him and Figueroa. We agree with the premise that

underlies this plea: a buyer-seller relationship, simpliciter,

is an insufficient predicate for a finding that the buyer and the

seller are guilty as coconspirators. See, e.g., United States v.

Mancari, 875 F.2d 103, 105 (7th Cir. 1989) (holding that the sale

of drugs in small quantities is inadequate, without additional

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evidence, to support a finding of conspiracy to distribute drugs

to others because the seller could reasonably believe that such

purchases are intended for the buyer's personal use). But the

premise provides the appellant no safe harbor on the facts of

this case. While a scenario in which A sells to B (who resells

to C, D, E, and F) may signify that A and B are related only as

vendor and vendee, such a scenario may also signify a broader,

more imbricated relationship. See, e.g., United States v. Moran,

984 F.2d 1299, 1303 (1st Cir. 1993). Knowledge and intent are at

the core of the issue. Thus, the question in such a case is

whether the evidence surrounding the transaction(s) is sufficient

to allow a fairminded jury to find beyond a reasonable doubt that

A knew that B was reselling the drugs, and intended to facilitate

the resales. See id.

The evidence here, taken in the light most congenial to

the verdict, establishes that the relationship between Figueroa

and Santiago contained enough elements of "[c]ommon knowledge,

interdependence, [and] shared purpose," id., to support a finding

that they were coconspirators. Figueroa testified that the

appellant had actual knowledge of the follow-on sales to Maine

residents. Two of Figueroa's customers testified that on at

least one occasion the appellant made a delivery of heroin to

Figueroa's home and met some of his clients.

The foregoing testimony was amply corroborated by the

circumstantial evidence. The appellant sold Figueroa quantities

of drugs (fifty bags per day) well beyond the outer limits of

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personal use amounts and packaged them in a manner suggestive of

intended resale. The regularity of the transactions, the

quantities of heroin, the amounts of money involved, and the

financial terms (especially the appellant's extension of credit

to Figueroa), taken together, form a sturdy foundation for a

finding that the appellant and Figueroa had at least a tacit

agreement to distribute the heroin to third parties. Since they

acted upon that tacit agreement (or so the jury could have

found), the appellant's conviction is sustainable by any measure.

Surely, it does not work an injustice.2

B.
B.

Venue
Venue

The appellant next asserts that he was tried in an

improper venue because he never committed a crime in the District

of Maine. This assertion is baseless. It is settled beyond

peradventure that venue is a personal privilege which can be

waived. See Fed. R. Crim. P. 18; see also Charles A. Wright,

Federal Practice and Procedure 306 (2d ed. 1982). Here, the

appellant consented to his removal and to the holding of the

proceedings in Maine. He submitted to trial there without ever

contesting venue. He has, therefore, waived the right to raise a

2The appellant also claims that the evidence fails to show
that he conspired to distribute the drugs in Maine. We reject

this claim for the reasons discussed in Part II(B), infra, and

for the added reason that the indictment charges a drug
distribution conspiracy that took place in "Maine, Massachusetts,
and elsewhere," unanchored to a single locale.

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venue-based challenge to his conviction.3 See United States v.

Cordero, 668 F.2d 32, 44-45 (1st Cir. 1981); see also Fed. R.

Crim. P. 12(b)(2) (mandating waiver of most defenses that could

have been, but were not, raised prior to trial).

In all events, the argument fails on the merits. The

venue requirement is designed to prevent a criminal defendant

from having to defend himself in a place that has no meaningful

connection to the offense with which he is charged. This court

held in United States v. Uribe, 890 F.2d 554 (1st Cir. 1989),

that in a conspiracy case venue is proper in any district in

which an act in furtherance of the charged conspiracy has taken

place, even if a particular coconspirator was not himself

physically present in that district. See id. at 558. The

actuation of a drug distribution conspiracy culminates in the

sale and delivery of the controlled substance. Thus, any place

in which the culmination occurs provides a lawful venue for the

prosecution of the offense. See id.

In this instance, the conspirators distributed the

heroin to Maine residents knowing that it would be introduced

into Maine and consumed there for the most part. Moreover, on at

least one occasion the appellant's cohort, Figueroa, personally

delivered heroin to a Maine locus in furtherance of the

3The appellant's attempt to blunt this waiver by citing the
alleged ineffectiveness of his trial counsel is unavailing. We
have consistently held and today reaffirm that, absent
exceptional circumstances (not now present), a claim of
ineffective assistance of counsel cannot debut on direct appeal.
See United States v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993)

(collecting cases), cert. denied, 114 S. Ct. 1839 (1994).

8

conspiracy (or so the jury could have found). This single, overt

act, taking place in Maine, is itself sufficient to sustain venue

in the District of Maine. See id. at 558-59; Cordero, 668 F.2d

at 43.

C.
C.

Variance
Variance

The appellant claims a prejudicial variance between the

indictment and the proof, and also claims that there was

injurious spillover from certain evidence regarding a second

conspiracy (of which he was not a member). Because these

exhortations are raised for the first time on appeal we review

them only for plain error. See United States v. Arcadipane, 41

F.3d 1, 6 (1st Cir. 1994). A close look assures us that, under

the jurisprudence of plain error, neither allegation requires

reversal.

We start by addressing the allegation that a variance

existed between the indictment and the evidence. The genesis of

the claim is as follows. Near the end of the trial, the

attorneys presented a stipulation to the court. The stipulation

confirmed that the contraband seized from Figueroa in Maine at

the time of the denouement comprised eighty-one bags "of the

paper type" and fifty bags "of the plastic type." But the

stipulation erroneously described the drugs as marijuana rather

than heroin. It seems likely that no one noticed the misnomer

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for the court accepted the stipulation without comment, and

during closing arguments each side specifically identified the

bags as containing heroin. The appellant now claims that the

obvious error in the stipulation is a variance sufficient to

warrant vacation of the conviction. We do not agree.

The key datum surrounding a claim of variance is

whether the purported variance is sufficiently severe to affect

the substantial rights of the accused. See id. at 6-7. Passing

the point of whether a criminal defendant ever can predicate a

claim of variance on the introduction of evidence to which he has

stipulated, the claimed variance is more apparent than real. The

record discloses that the reference to "marijuana" was an

isolated event. The indictment, the opening statements, the

trial testimony, the summations, and the district court's jury

instructions all spoke exclusively and unambiguously of heroin

not marijuana. Moreover, there is nothing in the trial

transcript that suggests any basis for a claim that the appellant

was either misled or surprised and he has not broached any such

theory in his appellate briefs.

A criminal defendant is entitled to a fair trial, not

necessarily a perfect one. Viewed in the context of the whole

record, the misstatement is at worst the type of minor defect

that cannot plausibly be said to impact a defendant's substantial

rights. See, e.g., United States v. Fermin Castillo, 829 F.2d

1194, 1196-97 (1st Cir. 1987) (reaching a similar conclusion when

the indictment misstated the name of the bank that issued

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material documents and mischaracterized the purpose for which

these documents were used). Since the stipulated misstatement

did not deprive the appellant of his due, plain error is plainly

lacking.

In a related vein, the appellant raises an issue of

spillover from one conspiracy to another. We find this claim

hard to follow. In virtually all cases involving allegations of

prejudicial spillover the trial involves more than one defendant

or more than one count. See, e.g., United States v. Wihbey, 75

F.3d 761, 774-75 (1st Cir. 1996); United States v. Boylan, 898

F.2d 230, 248 (1st Cir.), cert. denied, 498 U.S. 849 (1990).

Here, however, the appellant stood trial alone on a single charge

and the only evidence admitted at the trial was evidence deemed

relevant to his guilt or innocence on that charge. Thus, the

claim of prejudicial spillover is a non sequitur.

In a vain effort to overcome this incongruity, the

appellant suggests that his dealings with Figueroa were entirely

distinct from Soto's dealing with Figueroa, and that the evidence

anent the Soto-Figueroa dealings "spilled over" and prejudiced

the jury against him. This view misconceives both the law of

conspiracy and the rules of evidence. It is settled that members

of a conspiracy need not all know each other, work side by side,

or otherwise march in lockstep. See, e.g., United States v.

Sepulveda, 15 F.3d 1161, 1191 (1st Cir. 1993), cert. denied, 114

S. Ct. 2714 (1994); United States v. Rivera-Santiago, 872 F.2d

1073, 1079 (1st Cir.), cert. denied, 492 U.S. 910 & 493 U.S. 832

11

(1989). The government's theory here, as limned in the

indictment and bill of particulars, posited a single conspiracy

with Figueroa as a linchpin. The court permitted the jury to

hear the evidence of Soto's involvement on that basis, for the

most part without objection. We discern no error in the district

court's reception of the evidence. See Fed. R. Evid. 401

(defining relevancy); see also United States v. Nazzaro, 889 F.2d

1158, 1168 (1st Cir. 1989) (applying abuse of discretion test to

admission of evidence).

D.
D.

Sentencing
Sentencing

The appellant's final claim is that the lower court

improperly applied the career offender guideline, U.S.S.G.

4B1.1, to his case. Because this supposed bevue involves the

sentencing court's interpretation of a guideline, we afford

plenary review. See United States v. Winter, 22 F.3d 15, 18 (1st

Cir. 1994). The guideline states:

A defendant is a career offender if (1) the
defendant was at least eighteen years old at
the time of the instant offense, (2) the
instant offense of conviction is a felony
that is either a crime of violence or a
controlled substance offense, and (3) the
defendant has at least two prior felony
convictions of either a crime of violence or
a controlled substance offense.

U.S.S.G. 4B1.1 (Nov. 1992). The question before us is whether

the appellant's predicate offenses crossed the two-prior-felony-

convictions threshold established by 4B1.1.

The appellant's criminal record as disclosed in the

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presentence investigation report included (1) a conviction for

assault and battery against a police officer, (2) a conviction

for assault and battery with a dangerous weapon (a work boot),

(3) multiple convictions on narcotics charges (including a charge

of distributing heroin) stemming from a single arrest on March

20, 1990, and (4) another set of multiple convictions on

narcotics-related charges (including possession of heroin with

intent to distribute) stemming from a second arrest on April 9,

1990. The two drug arrests occurred within a few weeks of each

other and they were eventually consolidated for sentencing. The

appellant claims that this consolidation rendered the crimes we

have listed under items (3) and (4) "related cases" and meant

that they had to be treated as a single offense for purposes of

4B1.1. See U.S.S.G. 4A1.2(a)(2) & comment. (n.3). He also

argues that because he received a sentence of under one year on

each of the assault and battery convictions, neither of them

constitutes a cognizable predicate offense. Inasmuch as the

appellant's second argument is clearly erroneous, we need not

address the question of whether the two sets of narcotics charges

constitute separate predicate offenses under the career offender

guideline.

U.S.S.G. 4B1.2(1) defines a crime of violence in

pertinent part as "any offense under federal or state law

punishable by imprisonment for a term exceeding one year that . .

. has as an element the use . . . of physical force against the

person of another." The appellant contends that neither of his

13

prior convictions for assault and battery satisfy the requirement

of being "punishable by imprisonment for a term exceeding one

year" since he received a six-month sentence on each occasion.

The guideline, however, does not speak in terms of a judicial

judgment (the length of the sentence meted out), but, rather, in

terms of a legislative judgment (the maximum punishment

applicable to the offense). See U.S.S.G. 4B1.2, comment. (n.3)

(Nov. 1992) (explaining that a "'[p]rior felony conviction' means

a prior . . . conviction for an offense punishable by death or

imprisonment for a term exceeding one year, regardless of . . .

the actual sentence imposed"); see also United States v. Sanchez,

917 F.2d 607, 615 (1st Cir. 1990) (reaching the same conclusion),

cert. denied, 499 U.S. 977 (1991). The offenses occurred in

Massachusetts, and assault and battery was punishable in that

commonwealth at the time by imprisonment of up to two-and-one-

half years. See Mass. Gen. L. ch. 265, 13A (1990). Seen in

this light, the appellant's convictions for assault and battery

constitute predicate offenses within the purview of the career

offender guideline.4 Thus, the sentencing court did not err in

treating the appellant as a career offender.

4The appellant argues that the later conviction for assault
and battery with a dangerous weapon should be excluded because
the "weapon" was a pair of work boots. We do not see what
possible difference flows from this distinction. For one thing,
we take a categorical approach to the examination of predicate
offenses in order to determine whether they meet the requirements
of the career offender guideline. See, e.g., Winter, 22 F.3d at

18. For another thing, assault and battery is no less a crime of
violence because the assailant stomps his victim rather than
assaulting him in some more traditional manner.

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III.
III.

Conclusion
Conclusion

We need go no further. The other assignments of error

are patently meritless and do not warrant discussion. The record

reflects, without serious question, that the appellant

experienced a fair trial in a proper venue, and that he was

lawfully convicted and sentenced.

Affirmed.
Affirmed.

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