United States v. Santos Batista

United States Court of Appeals
For the First Circuit

No. 99-1061

UNITED STATES,

Appellee,

v.

RAFAEL ARIES SANTOS BATISTA,
AKA RAFAEL MORALES, LENYN RAMOS, PAPO,

Defendant, Appellant,

No. 99-1062

UNITED STATES,

Appellee,

v.

JUAN GONZALEZ,
AKA JOSE POLANCO, JOSE RIVERA,

Defendant, Appellant,

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]

Before

Selya, Boudin, and Stahl,
Circuit Judges.
 Irwin Kwiat for appellant Santos-Batista.
William J. Murphy, by appointment of the Court, for
appellant Gonzalez.
 Donald C. Lockhart, Assistant United States Attorney, with
whom Richard W. Rose, Assistant United States Attorney, and
Margaret E. Curran, United States Attorney, were on brief for
appellee.

January 8, 2001
 STAHL, Circuit Judge. Juan Gonzalez and Rafael Aries

Santos Batista were convicted by a jury of (1) conspiracy to

distribute cocaine in violation of 21 U.S.C. § 846, and (2)

possession of cocaine with the intent to distribute it in

violation of 21 U.S.C. § 841(a)(1). Gonzalez and Batista were

sentenced to 70 months and 210 months, respectively, as Batista

was linked to more transactions than was Gonzalez. Both appeal

their convictions on the basis of the district court's denial of

their untimely motions to suppress evidence, and Batista appeals

the consideration of certain transactions in determining his

sentence pursuant to the United States Sentencing Guidelines

(U.S.S.G.).

I. BACKGROUND

On January 9, 1998, Detectives David Neill and David

Palmer stopped Gonzalez at a gas station for questioning, having

followed him there from a multi-unit house under surveillance

for suspected drug-related activity. His handling of what

appeared to them to be a suspicious package had led them to

follow him as he drove away from the premises. At the gas

station, the officers found his demeanor suspicious. He seemed

unduly anxious to return to the apartment, commenting that he

was expected back there within a certain time-frame. In

response to this behavior, the officers asked him to sign forms

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acknowledging his Miranda rights and consenting to a search of

the apartment they had been surveilling. After Gonzalez

complied with this request, he also provided the officers with

keys.1

When the officers entered the apartment, they found

appellant Batista sitting on a cushion in shorts, skimming over

several loose sheets of notebook paper, with pen in hand. These

papers appeared to list accounts receivable for cocaine sales,

as part of a larger drug ledger, and contained Batista's

nickname, Papo, in several entries. With the aid of a drug-

sniffing dog, the officers discovered a hidden compartment in a

closet, which contained six heat-sealed bags, containing a total

of 400 grams of cocaine, several of which were marked with

weights that matched those written on the drug ledger pages

Batista had been reviewing. The police also found, in the

compartment and elsewhere in the apartment, various supplies for

the processing, weighing, and packaging of cocaine, as well as

a loaded handgun, $2,300 in cash, and additional drug ledgers.

Because they found no food or clothing in the apartment, the

officers concluded that they had found a "stash house."

1
Gonzalez also signed a consent-to-search form for his own
residence, and provided the officers with those keys as well.
The search there yielded very little evidence, and the details
are not important here.

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 Gonzalez and Batista were charged with conspiracy to

distribute cocaine and possession of cocaine with the intent to

distribute it, and their cases were combined for trial. 2

Although the defendants had several concerns regarding the

validity of the search, as well as the voluntariness of their

statements,3 they did not file a motion to suppress before trial

as required under FED. R. CRIM. P. 12(b)(3). From our reading of

the record, this apparently was a tactical decision, and their

intention was to challenge the search evidence and their

implicating statements as they were presented.

The government was made aware of this intention just

as the jury was about to enter for trial, and it immediately

brought the issue to the district court's attention. Although

the district court excused the jury so that it could hold a

suppression hearing, it made it quite clear "that neither of

these questions was timely raised, nor was there anything

approaching a showing of good cause for being excused from the

ordinary waiver requirements of Rule 12." Indeed, it appears

that the only reason the judge went forward with the hearing was

2 Though, to be clear, they were not facing identical
factual charges. Batista was the conspiracy's ringleader, while
Gonzalez was merely a courier.
3 Because we do not address the merits of the defendants'
suppression claims, see infra, we have found it unnecessary to
go into any detail regarding the facts relevant to those claims.

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to create a complete record in case this Court were to reverse

its waiver holding. After reaching the merits, the district

court denied each defendant's motion to suppress, and the trial

went forward with all of the evidence less one minor redacted

statement.

At the trial's conclusion, the jury convicted each

defendant on both counts. Gonzalez was sentenced to 70 months

imprisonment and Batista to 210 months. In calculating the

proper sentencing range under the guidelines, the court included

the amounts listed on the drug ledger pages 4 when imposing

Batista's sentence, but did not apply these amounts to Gonzalez.

II. ANALYSIS

We need address only two issues in these appeals: (1)

whether the defendants had waived their right to file motions to

suppress evidence, and (2) whether it was proper to include the

drug amounts from the ledger pages when calculating Batista's

sentence. Because of our holding on the first issue, see infra,

it is unnecessary for us to reach the merits of the suppression

motions themselves.

A. Suppression Arguments Waived

4 The judge considered only those pages that Batista
actually had been perusing and marking when caught red-handed,
and not the rest of the ledgers found in the apartment.

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 In federal criminal proceedings, motions to suppress

evidence must be raised prior to trial. FED. R. CRIM. P. 12

(b)(3). "The rationale usually given for removing suppression

questions from the trial itself is that 'interrupt[ing] the

course of the trial for such auxiliary inquiries impedes the

momentum of the main proceeding and breaks the continuity of the

jury's attention.'" United States v. Gomez, 770 F.2d 251, 253

(1st Cir. 1985) (quoting Nardone v. United States, 308 U.S. 338,

342 (1939)).

Failure to raise suppression arguments before trial

"shall constitute waiver thereof." FED. R. CRIM. P. 12(f). This

is mandatory language, and the rule applies broadly. See, e.g.,

United States v. Torres, 162 F.3d 6, 11 (1st Cir. 1998) (holding

that not only is there waiver when the defendant fails

altogether to file a motion to suppress before trial, but even

when he has done so but did not include a particular ground and

wishes to add it later), cert. denied, 526 U.S. 1057 (1999);

United States v. Mendoza-Acevedo, 950 F.2d 1, 3 (1st Cir. 1991)

(same).

A single narrow exception to the waiver rule provides

that "the court for cause shown may grant relief from the

waiver." FED. R. CRIM. P. 12(f). This relief is rarely granted,

and only where there is a showing of cause and prejudice. 1

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CHARLES A. WRIGHT, FEDERAL PRACTICE AND PROCEDURE § 193, at 339 & n.24

(3d ed. 1999). We have held in the past, and reiterate here,

that a mere tactical decision to delay efforts to suppress

evidence until it is adduced at trial does not come close to

meeting this burden. United States v. Nunez, 19 F.3d 719, 722

(1st Cir. 1994) (distinguishing tactical decisions, or even

changing one's mind later, from the paradigmatic ground for

relief where the government surprises the defense with

previously unknown evidence).

Moreover, because of the discretionary language in the

relief clause of Rule 12(f), we review the district court's

decision to deny relief only for abuse of discretion. Gomez,

770 F.2d at 253. Where a district court has elected not to

grant relief from a 12(f) waiver, our analysis is not affected

by its diligence--by holding a hearing on the merits--in

developing the record. United States v. Bashorun, 225 F.3d 9,

14 (1st Cir. 2000) ("[W]e enforce Rule 12(f) waivers even though

the district court ultimately did address the waived issue on

the merits . . ."). Thus, despite the well-developed record

here, because the motion to suppress was not properly raised

below, with no good cause shown, we will not consider it on

appeal. United States v. Marshall, 109 F.3d 94, 98-99 (1st Cir.

1997).

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 This Court's interpretation of the portions of Rule 12

that are relevant here has already been well established, and we

need not add more. Applying our existing precedent to the

adduced facts, the answer is undeniable. Neither defendant

filed a motion to suppress prior to trial. They were not

surprised by unexpected evidence produced by the government.

Indeed, they had planned in advance to attempt to suppress the

evidence as it arose during the trial. Neither defendant has

provided any reason for his failure to file a timely motion

other than confusion over tactical decisions. The district

court found, and we agree, that there was no good cause for this

failure. Because we hold that these defendants waived any

suppression arguments they may have had, we do not address the

merits of those claims.5

B. Sentencing

Our affirmance on the first matter resolves the

Gonzalez appeal, but still leaves the question of whether the

district court properly followed the sentencing guidelines when

determining Batista's sentence. The guideline sentencing range

is determined according to a numeric figure known as the base

5 Although we affirm the district court's ruling on the
ground that the appellants' suppression arguments have been
waived, the outcome would likely have been the same in any
event. Based upon our cursory review of the appellants'
suppression arguments, they appear to be without merit.

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offense level. In drug-related convictions, this figure is

determined in large part by quantity. Batista challenges the

district court's determination of the amount attributable to

him, arguing that only the quantity of drugs for which he was

convicted should apply. If the district court had agreed, and

only counted that quantity, then his adjusted offense level

(after adding other factors not challenged here) would have been

26(II), which correlates to a sentence range of 70-87 months.

However, because the district court included the amounts from

the drug ledger pages Batista was reviewing when the police

arrived, it determined an adjusted offense level of 34(II),

which correlates to a sentence range of 168-210 months. Batista

was thus sentenced to 210 months of incarceration.

In determining the base offense level, "[t]he drug

quantity properly attributable to a defendant is not limited to

the drugs involved in the offense of conviction." United States

v. Huddleston, 194 F.3d 214, 223 (1st Cir. 1999). The

Sentencing Guidelines, as applied to drug cases, require the

sentencing judge to determine quantity by including all amounts

"that were part of the same course of conduct or common scheme

or plan as the offense of conviction," whether or not the

defendant has been charged with those transactions. U.S.S.G. §

1B1.3(a)(2); see also United States v. Young, 78 F.3d 758, 763

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(1st Cir. 1996); United States v. Wood, 924 F.2d 399, 403 (1st

Cir. 1991); United States v. Blanco, 888 F.2d 907, 909-911 (1st

Cir. 1989) (providing a thorough discussion of this requirement

and why it was codified). "For two or more offenses to

constitute part of a common scheme or plan, they must be

substantially connected to each other by at least one common

factor, such as common victims, common accomplices, common

purpose, or similar modus operandi." U.S.S.G. § 1B1.3, cmt.

n.9; see also Young, 78 F.3d at 763.

Section 1B1.3(a)(2) has its limits, however, and "[n]ot

every drug transaction undertaken by every drug trafficker is

necessarily linked in a meaningful sense." United States v.

Sklar, 920 F.2d 107, 111 (1st Cir. 1990). It is necessary for

the sentencing judge to find a sufficient link between the acts

charged and those included for sentencing purposes. United

States v. Duarte, 950 F.2d 1255, 1264 (7th Cir. 1991) (vacating

a sentence where the judge had included prior transactions in

the quantity, but had not "explicitly found that the

transactions recorded in the drug notes were part of the 'same

course of conduct or common scheme or plan' as the [charged]

conspiracy"); Sklar, 920 F.2d at 111 ("Isolated acts cannot be

conjoined and drug quantities aggregated for sentencing purposes

without a rational basis."). If the judge is unable to make

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this finding, "[o]ffenses of the same kind, but not encompassed

in the same course of conduct or plan, are excluded." United

States v. White, 888 F.2d 490, 500 (7th Cir. 1989).

Before uncharged conduct may be used in the sentencing

calculus, the burden is on the government to demonstrate a

sufficient nexus between that conduct and the offense of

conviction. Young, 78 F.3d at 763; Sklar, 920 F.2d at 110.

This burden, however, is met by a mere preponderance of the

evidence. Huddleston, 194 F.3d at 224; Young, 78 F.3d at 763;

Sklar, 920 F.2d at 110. Further, "[t]he rules of trial evidence

do not apply; in weighing the facts the sentencing court may

evaluate virtually any dependable information." Sklar, 920 F.2d

at 110 (quoting U.S.S.G. § 6A1.3 as allowing a sentencing judge

to consider any information that has "sufficient indicia of

reliability to support its probable accuracy").

Although we review the legal meaning and scope of the

guidelines de novo, we will not upset the sentencing court's

fact-based application of the guidelines unless it is clearly

erroneous. United States v. Mitchell, 85 F.3d 800, 813 (1st

Cir. 1996). In drug cases specifically, we review the

sentencing court's finding that uncharged drugs were "part of

the same course of conduct or common scheme or plan as the

offense of conviction" only for clear error. Young, 78 F.3d at

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763; Wood, 924 F.2d at 403. The same standard applies to the

judge's resulting quantity determination, and "we uphold such an

approximation as long as it represents a reasoned estimate of

quantity." United States v. Webster, 54 F.3d 1, 5 (1st Cir.

1995); see also Huddleston, 194 F.3d at 223-24.

Here, the district court's decision to treat the drug

transactions described in the ledger pages as "a common scheme

or plan" is unassailable. When the police entered the

apartment, Batista was sitting on a cushion, the four ledger

pages directly in front of him, pen in hand. Although there

were other ledgers found in the apartment, the government did

not attempt to include the amounts listed in them. By means of

cross-reference, it was possible to determine that the

transactions on the pages in question all had occurred in the

immediately preceding months prior to the arrest. In United

States v. Tabares, a strikingly similar case, we upheld a

district court's decision to include amounts, listed in a spiral

notebook, corresponding to sales from the preceding few months.

951 F.2d 405, 410 (1st Cir. 1991). Indeed, we have even

commented that sentencing determinations could be easier for the

judges to make, if only all drug dealers would keep such

complete records. Sklar, 920 F.2d at 111 (granting sentencing

judges significant leeway in estimating drug amounts because

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"[i]t is the rare narcotics trafficker who authors a formal

business plan or keeps meticulously detailed inventory

records").

Our only remaining concern is whether the district

judge did in fact find that the transactions reflected in the

ledgers "were part of the same course of conduct or common

scheme or plan," as required by the guidelines. This concern

stems from the fact that the judge did not, in his finding,

specifically use this language. Indeed, the judge's finding

that the ledger amounts should be included appears to focus on

the issue of whether Batista was responsible for the

transactions they reflect. As we have noted above, however, a

defendant must not only be responsible for any uncharged acts to

be considered in his sentencing, but those acts also must be

linked to the offense of conviction.

Although the judge did not specifically use the

guideline language, a close reading of the sentencing transcript

indicates that the issue was adequately addressed, and that the

district court did in fact make the necessary finding of a nexus

in determining the amount relevant to the sentencing calculus.

Indeed, the government focused on the "same course of conduct"

requirement in its oral argument at sentencing. However,

because Batista defended himself by arguing that he was not

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responsible for the ledger amounts,6 it was this argument to

which the judge responded when finding that the ledger amounts

did apply in sentencing Batista. Specifically, the district

court found that the information in the ledger pages counted

because the defendant was responsible for the transactions shown

therein, and was "a participant in this conspiracy during the

period of time reflected in the drug ledger . . . ." The

totality of the record indicates that, although the district

court could have used more precise language, the ledger amounts

were applied in determining Batista's sentence because the

transactions described "were part of the same course of conduct

or common scheme or plan as the offense of conviction."

Moreover, this conclusion is bolstered by the judge's

use of the word "conspiracy" in dealing with the transactions

reflected in the ledger. We have used this term interchangeably

with the phrase "common scheme or plan" in at least two

sentencing cases. See Tabares, 951 F.2d at 410 ("The legal

question, then, is simply whether the court could find that the

drugs referred to in the notebook were part of the scheme or

6
This is, of course, a valid focus for the defense, as the
government must show both that the defendant was responsible for
the amounts and that the amounts are connected to the crime of
conviction. Thus, although it would be inappropriate for the
prosecution to argue the responsibility factor exclusively
(which it did not do here), it was acceptable for the defense to
do so.

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plan or conspiracy of which the jury convicted the defendants.

That is to say, was the district court's finding that these

amounts were part of the conspiracy 'clearly erroneous'?");

Wood, 924 F.2d at 404 ("Sentence must be based on the [crimes]

that were part of one 'common scheme or plan' (such as a single

conspiracy) or a single 'course of conduct' (the unilateral

equivalent to the conspiracy).") (quoting White, 888 F.2d at

500).

III. CONCLUSION

For the foregoing reasons, we hold that (1) both

defendants waived their suppression arguments by not raising

them prior to trial, and (2) the district court did not err by

including the amounts from the drug ledger in the calculation of

Batista's sentence.

Affirmed.

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