United States Court of Appeals
For the First Circuit
No. 99-1394
UNITED STATES OF AMERICA,
Appellee,
v.
JOSÉ A. VEGA-FIGUEROA, A.K.A. PITO CASCO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
Before
Selya, Circuit Judge,
Bownes, Senior Circuit Judge,
and Lipez, Circuit Judge.
Bruce R. Bryan and Paul G. Carey on brief for appellant.
Jacabed Rodriguez-Coss, Assistant United States Attorney,
Guillermo Gil, United States Attorney, and Jorge E. Vega-
Pacheco, Assistant United States Attorney on brief for appellee.
December 18, 2000
BOWNES, Senior Circuit Judge. Defendant-appellant José
A. Vega-Figueroa, along with eight other defendants, was tried
pursuant to a three-count indictment in the District Court for
the District of Puerto Rico for drug related activities. The
indictment charged as follows: Count I, 21 U.S.C. § 848(a) and
(b), continuing criminal enterprise, and 18 U.S.C. § 2, aiding
and abetting; Count II, 21 U.S.C. § 846, conspiracy to
distribute in excess of five kilograms of heroin, in excess of
five kilograms of cocaine, in excess of five kilograms of
cocaine base and in excess of 100 kilograms of marijuana; and
Count III, 18 U.S.C. § 924(c)(1) & (2), unlawful use of firearms
during and in relation to a drug trafficking offense and aiding
and abetting.
All nine of the defendants who stood trial were found
guilty on all or some of the counts. We consolidated the
appeals. Seven of the defendants argued orally on September 14,
2000. The other two defendants' appeals were submitted on
briefs to the same panel.
The defendant in this case, Vega-Figueroa, was found
guilty on all three counts. He was sentenced to life
imprisonment on Counts I and II of the indictment1 and a term of
five years on Count III, to be served consecutively. Defendant
1Count II was subsequently dismissed.
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has raised ten issues on appeal, which we will discuss in the
order followed in his brief.
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I. FACTS
We state the facts in the light most favorable to the
verdict. See United States v. Duclos, 214 F.3d 27, 32 (1st Cir.
2000). This rehearsal of the evidence does not, of course,
cover the facts that are applicable only to other defendants.
Nor do we recite, at this juncture, all of the facts involving
defendant. Many of the facts pertaining to particular issues
will be set forth in our discussion of the issues. All we do
now is state those facts that will give the reader the necessary
background information to understand the different issues raised
by defendant. Defendant and Carlos Hernandez-Vega were in
charge of an extensive criminal enterprise involving the sale
and distribution of heroin, cocaine, crack cocaine, and
marijuana. Cooperating witnesses for the government included
five former members of the enterprise who sold narcotics for the
organization. Their testimony can be summarized as follows.
Defendant and/or Hernandez-Vega delivered the drugs to
the various cooperating witnesses at the drug point, located in
a public housing project. Members of the enterprise carjacked
automobiles on a regular basis. The carjacked vehicles were
then used for drive-by shootings targeted against other drug
dealers who operated drug points in other public housing units
in competition with defendant and Hernandez-Vega. The drug
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distribution point of the enterprise was guarded by armed
members of the organization. There was also testimony that
defendant and Hernandez-Vega operated a heroin drug point
located within the Hogar Crea detention and drug rehabilitation
facility in Saint Just at Trujuillo Alto, Puerto Rico. Another
drug gang ousted two members of defendant’s organization from
the Hogar Crea drug point. Defendant and Hernandez-Vega ordered
that the two men who had taken over the Hogar Crea drug point be
murdered. The men were ambushed and killed by defendant,
Hernandez-Vega, and other members of defendant’s enterprise.
The indictment charged that the continuing criminal
enterprise and conspiracy started on or about August 1, 1990,
and continued until on or about April 10, 1997.
II. DISCUSSION
The issues are essentially stated as phrased by
defendant.
1. Whether a statement made by defendant
while in custody should have been
suppressed.
After being arrested, defendant, along with other
codefendants, was taken into custody to be interrogated,
photographed, and finger-printed. Before any police
interrogation started, another arrestee, Medina-Sanchez, asked
defendant if he had been arrested for running a criminal
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enterprise and supervising a drug point. Defendant replied
“that was before . . . about the drug point . . . now I only
supervise the kitchen. . . .” In the parlance of the drug trade
a “kitchen” is that part of a drug operation in which the drugs
are prepared for sale. Unfortunately for defendant, two federal
agents overheard the conversation and included it in their
report. The statement was used against defendant at trial.
Defendant contends “that the statement should have been
suppressed because (1) he should have been warned of his
constitutional rights under Miranda and (2) the statement was
not voluntarily made.”
In denying defendant's motion to suppress, the district
court examined the totality of the circumstances and found:
[I]t is clear that the statements which
defendant made while waiting to be booked at
the Federal Building were indeed voluntary.
Defendant merely responded to questioning
from another arrestee. Although he was
being closely supervised by various agents
who were present to ensure that things were
under control, those agents did not address
him directly, except to allegedly ask him
routine questions, such as his name,
nickname, prior employment, and whether he
had any addiction problems.
Our prior case law establishes the standard of review.
We held in United States v. Taylor, 985 F.2d 3, 7 n.5 (1st Cir.
1993), that "[n]ormally, 'clear error' is the standard employed
in reviewing findings of fact. In the present case, however,
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none of the relevant facts are in dispute . . . . Thus, the
determination as to whether police 'interrogation' occurred
depends on the totality of the circumstances, a balancing
analysis commonly considered amenable to plenary review"
(citations omitted). We held in United States v. Sealey, 30
F.3d 7, 9 (1st Cir. 1994), that "[i]n scrutinizing a district
court's denial of a suppression motion, the court of appeals
will review findings of fact for clear error, while at the same
time subjecting the trial court's ultimate constitutional
conclusions to plenary oversight."
Neither party here disputes the circumstances
surrounding defendant's statement. The only questions presented
for review are whether the district court erred in holding that
defendant's statements were voluntary and that the custodial
situation did not amount to the functional equivalent of an
interrogation. Because these issues involve questions of law,
we apply plenary review.
First, we reject defendant's argument that he was
entitled to Miranda warnings. In order for Miranda rights to be
invoked, there must be (1) custody and (2) interrogation. See
United States v. Ventura, 85 F.3d 708, 709-10 (1st Cir. 1996).
It is undisputed that defendant was in custody at the time of
his statement. Because he does not allege that there was ever
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an actual interrogation, the crux of his appeal hinges on
whether the environment within which defendant made the
statement amounted to the functional equivalent of an
interrogation.
The Supreme Court discussed the concept of the
functional equivalent of an interrogation in Rhode Island v.
Innis, 446 U.S. 291 (1980), holding:
. . . Miranda safeguards come into play
whenever a person in custody is subjected to
either express questioning or its functional
equivalent. That is to say, the term
"interrogation" under Miranda refers not
only to express questioning, but also to any
words or actions on the part of the police
(other than those normally attendant to
arrest and custody) that the police should
know are reasonably likely to elicit an
incriminating response from the suspect . .
. . A practice that the police should know
is reasonably likely to evoke an
incriminating response from a suspect thus
amounts to interrogation. But, since the
police surely cannot be held accountable for
the unforeseeable results of their words or
actions, the definition of interrogation can
extend only to words or actions on the part
of police officers that they should have
known were reasonably likely to elicit an
incriminating response.
Id. at 300-01 (citations omitted).
Here, defendant alleges only that the police performed
their routine activities of fingerprinting and photographing him
and other defendants. He points to no words or actions on the
part of the federal agents that were likely to elicit his
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incriminating words about "supervising the kitchen." Hence,
there is nothing to support his contention that he experienced
the functional equivalent of interrogation such that Miranda
warnings were warranted.
Nor did the district court err in holding that
defendant's statements were voluntary. The Supreme Court has
held that "[t]he admissibility of the respondent's statement as
a constitutional matter [is] governed . . . by the contemporary
case law elaborating the due process standard of voluntariness.
The question [is] whether the will of the defendant had been
overborne so that the statement was not his free and voluntary
act, and that question [is] to be resolved in light of the
totality of the circumstances." Procunier v. Atchley, 400 U.S.
446, 453 (1971); see also United States v. Melendez, 228 F.3d
19, 22 (1st Cir. 2000) (holding that Miranda has no force
outside of interrogations where interrogators do not have the
"capacity to dominate the scene to such an extent that the risks
of coercion and intimidation are unreasonably high").
Applying the applicable case law to the undisputed
facts of the circumstances surrounding defendant's statement, we
have no difficulty finding that the statement was his free and
voluntary act. Defendant's statement was not the result of
intimidation, coercion resulting from the setting in which the
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statement was made, or a deliberate plan by the agents to place
defendant in an environment that would induce a confession.
2. Whether defendant was denied a
fair trial by the failure of
the government to disclose
information in its possession.
Defendant asserts that the government was untimely in
its disclosure of two pieces of evidence - rough notes taken by
F.B.I. agents for use in preparing a report, and photographs
used to question a key witness - and that he was therefore
impaired in his ability to defend. The district court permitted
the introduction of both of these pieces of evidence.
Defendant presents extensive case law discussing the
government's obligation, under Fed. R. Crim. P. 16(c), to
disclose documents "which are material to the preparation of the
defendant's defense or are intended for use by the government as
evidence in chief at the trial. . .." He does not specify,
however, how his ability to defend the case was impaired, or how
he would have altered his defense had the allegedly untimely
information been disclosed earlier.
As to the notes, defendant seems to argue that he hoped
that by viewing copies of the notes used in writing the F.B.I.
report, he would be able to show inconsistencies between the
agents' testimony and the report. The district court was
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unconvinced that defendant even needed to survey the notes at
all, noting that defendant had access to the actual report, as
well as an opportunity to cross-examine the agents who had
prepared the report, during which defendant could have attempted
to unearth all of the same alleged inconsistencies that he hoped
to bring to light in viewing the notes.
As to the photographs, defendant contends that his
defense was impaired by the government's failure to timely
disclose the photos. The district court allowed the photos to
be used at trial even though they had not previously been
disclosed to defendant, on the ground that the photos were used
exclusively for identification purposes. The photos were
presented to a witness whose description of a third party had
been called into question by the defense, in order to verify
that he was able to identify the correct person. Implicit in
the district court's decision is a finding that because the
photos were only used to clarify an identification, an
identification that defendant was well aware would take place,
the delayed disclosure did not impair defendant's case.
We held in United States v. Devin, 918 F.2d 280 (1st
Cir. 1990):
When the issue is one of delayed disclosure
rather than total nondisclosure . . . the
applicable test is whether defense counsel
was prevented by the delay from using the
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disclosed material effectively in preparing
and presenting the defendant's case . . . .
Although our opinions have not been explicit
on the point, we believe that, absent a
mistake of law, a court of appeals should
review a district court's finding that
delayed disclosure was harmless . . . under
an abuse-of-discretion standard.
Id. at 289 (citations and internal quotations omitted).
"Generally, [the court has] viewed the failure to ask for a
continuance as an indication that defense counsel was himself
satisfied he had sufficient opportunity to use the evidence
advantageously." United States v. Osorio, 929 F.2d 753, 758
(1st Cir. 1991). We also held that "[a defendant's] claim that
he was unfairly surprised is severely undermined, if not
entirely undone, by his neglect to ask the district court for a
continuance to meet the claimed exigency." United States v.
Diaz-Villafane, 874 F.2d 43, 47 (1st Cir. 1989).
Here, defendant never moved for a continuance as a
result of the allegedly delayed disclosure. In light of this
failure, combined with his failure to substantiate his assertion
of impairment in defending his case with even a single concrete
example, we cannot say that the district court abused its
discretion in allowing the evidence in question to be admitted.
3. Whether defendant was denied
due process by the
interference of the government
with a key defense witness.
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The essential facts are as follows. Defendant intended
to call as a defense witness Isabelle Cesareo, the aunt of Ramon
Cesareo, a prosecution witness who had made an agreement with
the federal government in exchange for his testimony. Isabelle
was to testify adversely on the credibility of her nephew. The
prosecution sent three F.B.I. agents to Isabelle's home to speak
with her. She was not home at the time, and the agents were
only able to speak with her daughter. The daughter testified
that the agents questioned her about whether defense counsel had
been in contact with her mother; told her that unless served
with a subpoena, her mother was under no obligation to testify;
and said that her mother's testimony could adversely affect
Ramon's agreement with the government. Isabelle, though
seemingly reluctant to testify after the visit, ultimately did
so.
The district court asked the prosecutor why F.B.I.
agents had been sent to the home of a defense witness. She
responded that the visit followed a report that the defense had
been in contact with a witness. Ramon told the F.B.I. that, in
an attempt to keep him from testifying, defense counsel had
visited members of his family and told them that he, Ramon,
would be the only government witness to take the stand against
defendant at trial. The prosecutor claimed that the visit to
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Isabelle's home was simply an attempt to corroborate Ramon's
statement.
The district court was presented with three issues:
(1) the reason that the prosecution sent agents to the witness's
home; (2) whether the visit was improper; and (3) whether the
visit affected the testimony given by the witness. The district
court held:
[W]e do find after hearing Mrs. Cesareo and
her daughter that this witness is not
hostile to the defendant. She is willing to
testified [sic]. Her testimony in court
this morning was frank, honest and the Court
has no reason to be concerned about it, as
far as what the defendant wishes her to
testify about . . . . [W]e do find that in
substance the visit by these agents,
although, in the Court's opinion not the
best practice without notifying counsel . .
. we do find that it has not in any way
affected the right of the defendant to bring
this witness via a subpoena to have her
testify candidly like she is prepared to do
and the Court corroborated that this morning
and, therefore, the defendant's rights have
not been affected in any way. Mrs. Cesareo
is here in court. She will be a witness.
Defendant asserts that the prosecution sent the agents
to Isabelle's home in order to encourage her not to testify, and
that, even though she ultimately did testify, she had been
"changed from a willing participant in the court proceeding to
a highly reluctant and scared participant." This interference,
defendant argues, constitutes a denial of due process.
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Defendant does not specify what parts of Isabelle's testimony
would have been different had the prosecution not contacted her.
The government points out that the agents never actually spoke
with Isabelle or entered into a discussion as to whether she
should testify. Finally, the government argues that, even were
the prosecutor's visit found to have been improper, the
defendant was not prejudiced since, in the end, Isabelle did
take the stand.
If any improprieties surrounding the prosecution's
contact with the witness are found, we must determine whether
that interference constituted reversible error. See Lisenba v.
California, 314 U.S. 219, 236 (1941) (holding that "[a]s applied
to a criminal trial, denial of due process is the failure to
observe that fundamental fairness essential to the very concept
of justice. In order to declare a denial of it we must find
that the absence of that fairness fatally infected the trial;
the acts complained of must be of such quality as necessarily
prevents a fair trial."); see also United States v. Olano, 507
U.S. 725, 733 (1993) (holding that an appeals court's authority
to reverse a district court decision is contingent upon the
error being prejudicial). Regardless of whether actual
prejudice is required, defendant has failed to prove a due
process violation.
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We take a dim view of government agents gratuitously
confronting a defense witness out of court before the witness
testifies. See Kines v. Butterworth, 669 F.2d 6, 9 (1st Cir.
1981) (holding that "when the free choice of a potential witness
to talk to defense counsel is constrained by the prosecution
without justification, this constitutes improper interference
with a defendant's right of access to the witness.
Justification on the part of the prosecution to interfere with
that right can be shown only by the clearest and most compelling
considerations."). In the present case, however, there is
nothing in the record indicating that the testimony would have
been different or more exonerating if the agents had not talked
to the witness's daughter. We are, therefore, bound to uphold
the district court's ruling.
4. Whether the government proved
a continuing conspiracy or
only multiple conspiracies.
Part of the conspiracy for which defendant was
convicted involved the operation of a drug point after 1995.
Defendant was incarcerated from January, 1995, through April,
1997, and denies having participated in any conspiracy during
that time. He argues that the evidence was insufficient to
prove the existence of only a single conspiracy and that he thus
should not be held liable for any of the transactions that took
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place after the start of his incarceration. Defendant further
asserts that, because there is no evidence connecting him with
any conspiracy after the start of his incarceration, no evidence
having to do with the operation of the drug point subsequent to
his incarceration should have been admitted. In support of this
contention, he points to evidence suggesting that, while he was
in jail, the drug point in question came to be controlled by
another organization of which he was not a member, and that
certain members of his conspiracy were also members of another
conspiracy. This, he argues, shows the existence of multiple
conspiracies rather than just a single conspiracy. If, as
defendant contends, multiple conspiracies existed, the criminal
activities for which he could be held responsible would be
greatly reduced.
Whether a series of events constitutes a single
conspiracy is a question of fact, reviewed for sufficiency of
evidence. We held in United States v. Bello-Perez, 977 F.2d
664, 667 (1st Cir. 1996), that "[w]hether the evidence adduced
at trial established one or more conspiracies [is] a question of
fact for the jury." "It is a recurring question in conspiracy
cases whether related illegal agreements comprise one conspiracy
or several. Because the agreements are often not explicit and
are regularly inferred from conduct, the courts ordinarily treat
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the issue as one of fact and offer various criteria that might
help the factfinder distinguish . . . ." United States v.
Randazzo, 80 F.3d 623, 629 (1st Cir. 1992). "[A] single
conspiracy may exist where there has been no direct contact
among some of the participants . . . . Moreover, [t]he fact
that every defendant did not participate in every transaction
necessary to fulfill the aim of their agreement does not
transform a continuing plan into multiple conspiracies." United
States v. Mena-Robles, 4 F.3d 1026, 1033 (1st Cir. 1993)
(citations and internal quotation marks omitted). In reviewing
a jury's finding concerning the number of conspiracies, "where
. . . there is no challenge to the jury instructions, we review
the jury's conclusion as to whether one or more conspiracies
existed only for evidentiary sufficiency." Id.
The evidence suggesting multiple conspiracies to which
defendant refers in his appeal is only tangentially related to
the issue presented to this court: whether there is sufficient
evidence in the record upon which a reasonable jury could have
found that the conspiracy to distribute drugs continued after
defendant was incarcerated. That there may be some evidence
suggesting the existence of multiple conspiracies does not
change the fact that this court cannot reverse the jury's
verdict (which rested upon a finding of a single conspiracy)
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absent a determination that no reasonable jury could have come
to this conclusion.
The record is replete with evidence allowing for a
finding of a single conspiracy that continued beyond the start
of defendant's incarceration. During the three months of trial,
witness after witness provided testimony demonstrating the
impeccable organization of the conspiracy – everything from the
color of the packaging used for the drugs, to the preferred car
models stolen for use in drive-by shootings, to the particular
kinds of firearms members were permitted to carry in various
situations – all of which was under defendant's control. There
was even a reference made to a designation of which specific
members of the conspiracy would be allowed to make decisions at
a meeting that took place during a period in which defendant was
briefly incarcerated. Based on all of this testimony
demonstrating the rock-solid, intricately designed
organizational structure of the conspiracy, there is no basis to
find that the jury was unreasonable in coming to the conclusion
that the conspiracy continued after defendant was imprisoned and
that he continued to play a major role in its operation.
5. Whether the proof at trial
varied from the indictment.
Defendant claims to have had inadequate notice of the
conduct for which he was charged. He argues that the
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prosecution, without indicating in the indictment that it was
going to do so, introduced evidence that, as part of the
conspiracy, he (1) was involved in the murder of Maria Magdalena
Gotay, the sister of one of the prosecution's key witnesses; and
(2) supervised the drug point at the housing project while he
was incarcerated. Defendant asserts that these unforeseen
accusations represent a variance between the indictment and the
proof adduced at trial. The prosecution asserts that it is not
required to prove the commission of any overt act in furtherance
of a 21 U.S.C. § 846 drug conspiracy and that therefore it was
not required to list any overt acts in the indictment.
Defendant raised a nearly identical argument before the
district court in a motion to suppress. The district court
denied the motion, rejecting defendant’s claims of
unconstitutional variance and insufficient notice. With respect
to the variance assertion, the district court held that "what
defendants fail to recognize is that the indictment charged
defendants with conspiracy, not murder. The use of this
testimony regarding the murder is merely another overt act in
furtherance of the conspiracy, and not an additional charge for
the murder itself." The district court then rejected the
insufficient notice claim, pointing out that "the Government was
not even required to supply the defendants with the name of the
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witness who [would] testify about this murder prior to the
trial." In his appeal to this court, defendant reasserts the
argument he made to the district court.
21 U.S.C. § 846 provides that "[a]ny person who
attempts or conspires to commit any offense defined in this
subchapter shall be subject to the same penalties as those
prescribed for the offense, the commission of which was the
object of the attempt or conspiracy." In United States v.
Shabani, 513 U.S. 10, 13 (1994), the Supreme Court stated that
"[t]he language of neither [the original conspiracy statute of
the Comprehensive Drug Act of 1970 nor the version amended by
the Anti-Drug Act of 1988] requires that an overt act be
committed to further the conspiracy, and we have not inferred
such a requirement from congressional silence in other
conspiracy statutes." We held in Bello-Perez, 977 F.2d at 669,
that "[t]he government is not required to plead or prove any
overt act in furtherance of a section 846 conspiracy. Although
overt acts are gratuitously set forth in the indictment, the
government is not limited at trial to proof of the alleged overt
acts; nor is the indictment rendered insufficient for failure to
plead other overt acts." (citations and internal quotation marks
omitted) (emphasis added).
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Under the applicable case law, it is clear that
defendant has no basis for asserting that there was a fatal
variance between the indictment and the proof at trial.
6. The government made promises
of value to witnesses for
their testimony in violation
of 18 U.S.C. § 201(c)(2)
(2000).
18 U.S.C. § 201(c)(2) (2000) provides that "[w]hoever
. . . directly or indirectly, gives, offers, or promises
anything of value to any person, for or because of the testimony
under oath or affirmation given or to be given by such person as
a witness upon a trial, hearing, or other proceeding, before any
court . . . shall be fined under this title or imprisoned for
not more than two years, or both." Defendant contends that the
government violated this statute by agreeing, in return for the
witnesses' testimony, not to prosecute one witness, and to
support a reduction in a sentence for another. We heard and
unequivocally rejected this argument in United States v. Lara,
181 F.3d 183, 197-98 (1st Cir. 1999), cert. denied, 120 S.Ct.
432 (1999):
[W]e make our position explicit and
unqualified. There are several reasons why
section 201(c)(2) cannot be invoked as a
bright-line barrier to the government's use
of witnesses whose cooperation has been
secured by agreements not to prosecute or by
promises of recommended leniency. The most
basic reason is that section 201(c)(2) does
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not apply at all to the federal sovereign
qua prosecutor. After all, statutes of
general purport do not apply to the United
States unless Congress makes the application
clear and indisputable, and Congress has
taken no such steps in respect to this
statute. Reliance on this tenet is
particularly apt where, as here, the failure
to honor it would divest the government of a
long-established prerogative and, in the
bargain, lead to an eccentric result.
(citations and internal quotation marks omitted) (emphasis
added). Under this holding, defendant's assertion is meritless.
7. Whether defendant was denied a
fair trial because a witness
was permitted to give an
opinion on an ultimate issue
in the case.
Fed. R. Evid. 701, Opinion Testimony by Lay Witnesses,
provides:
If the witness is not testifying as an
expert, the witness's testimony in the form
of opinions or inferences is limited to
those opinions or inferences which are
(a) rationally based on the perception of
the witness and (b) helpful to a clear
understanding of the witness' testimony or
the determination of a fact in issue.
Defendant asserts that the district court should not have
permitted testimony by Aleida Gotay Saez in which Gotay stated
her opinion that the reason her sister was killed was that
Gotay's drug point, where her sister worked, sold more drugs
than the drug point operated by defendant and his co-
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conspirators. Defendant argues that this testimony was based on
hearsay, that it was an opinion concerning an ultimate issue
that had to be determined by the jury, that it was not "helpful"
as required by section (b) of the rule, and that it seriously
prejudiced his case.
The government argues that because of Gotay's heavy
involvement with the competing drug point at the housing
project, her participation in a meeting in which defendant
mentioned the benefits of joining his operation, her first-hand
knowledge of how drug trafficking organizations operated, and
her witnessing of her sister's murder, she was in a position to
give an opinion as to why her sister was killed. The government
contends that her testimony was helpful because it helped the
jury understand the motive behind the murder and how the act
furthered the interests of the conspiracy.
In United States v. Paiva, 892 F.2d 148, 156 (1st Cir.
1989), we reiterated the generally accepted rule:
The admissibility of lay opinion testimony
pursuant to Rule 701 is committed to the
sound discretion of the trial judge, and the
trial judge’s admission of such testimony
will not be overturned unless it constitutes
a clear abuse of discretion.
We pointed out that “[t]he modern trend favors the admission of
opinion testimony provided it is well founded on personal
knowledge and susceptible to cross-examination.” Id. at 157;
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see also United States v. Rivera-Santiago, 107 F.3d 960, 968
(1st Cir. 1997); United States v. Jackman, 48 F.3d 1, 4 (1st
Cir. 1995).
The record shows that Gotay was subject to intensive
cross-examination. Under the applicable law and the facts to
which she testified, we find that the district court did not
abuse its discretion in allowing Gotay to state her opinion as
to why her sister was killed. In all events, given the strength
of the government's case against defendant, any error in the
admission of this evidence was harmless.
8. Whether the search warrant for
defendant’s apartment was
invalid because it failed to
correctly identify the
apartment to be searched.
Defendant moved to suppress the evidence seized on the
ground that an erroneous address on the warrant invalidated it.
He further argued that even if the warrant was valid, it should
not have issued because it was not supported by probable cause.
The district court did reach the merits of the motion to
suppress but dismissed it on the ground that it was untimely.
Although we do not entirely disagree with the district court as
to the timeliness of the motion, we prefer to decide the issue
on the merits.
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We held in United States v. Vigeant, 176 F.3d 565, 569
(1st Cir. 1999), that "[w]e review the question of probable
cause de novo, assessing the information provided in the four
corners of the affidavit supporting the warrant application" and
that "probable cause exists when the affidavit upon which a
warrant is founded demonstrates in some trustworthy fashion the
likelihood that an offense has been committed . . . ." (internal
quotation marks and citations omitted). Probable cause, in the
context of granting a search warrant, requires no more than the
existence of a "fair probability" that evidence of a crime will
be found. United States v. Grant, 218 F.3d 72, 75 (1st Cir.
2000).
The facts leading to the warrant are as follows. Edwin
Nunez Cotto, an officer in the drugs and narcotics division of
the Puerto Rico Police Department, testified that while
conducting surveillance of the building in which defendant
lived, he had seen individuals who appeared to be transporting
weapons and other individuals positioned on the roof, apparently
as lookouts. These observations led Nunez to conclude that
“they were protecting something in defendant’s apartment."
Defendant argues in his brief that the warrant was not
supported by probable cause. He states: “Where information is
supplied by a confidential informant to a police officer, the
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informant, in general, must be shown to have an adequate basis
of knowledge and a background demonstrating reliability.” This
is a substantially correct statement of the law but there is
nothing in the record about information from a confidential
informant. Rather, it seems clear that the warrant was issued
based on the observations and conclusion of Officer Nunez.
There can be little doubt that there was at least a “fair
probability,” based on Nunez’s observations, that evidence of a
crime could be found. We rule that there was probable cause for
issuing the search warrant.
Defendant’s final argument on this issue focuses on an
incorrect address given in the warrant. The warrant mistakenly
described the apartment to be searched as building 44, apartment
446. Defendant's address was in fact building 45, apartment
446, and that was the only premises searched. Officer Nunez,
who made the observations that were the basis for issuing the
warrant and was its executing officer, was also a member of the
search team. He correctly directed the team to defendant’s
apartment.
Defendant argues that, because of the address mistake,
his apartment was not "particularly described" in the warrant as
required by the Fourth Amendment. He contends that the search
of his apartment was thus improper, and that any evidence found
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as a result of the search should be suppressed. Defendant
asserts that the warrant allowed the police to undertake wide-
ranging general searches in violation of the Fourth Amendment,
and that there was a great probability that the wrong apartment
would be searched.
We held in United States v. Bonner, 808 F.2d 864, 866-
67 (1st Cir. 1986), that "[t]he manifest purpose of the
particularity requirement of the Fourth Amendment is to prevent
wide-ranging general searches by the police" and that "[t]he
test for determining the adequacy of the description of the
location to be searched is whether the description is sufficient
to enable the executing officer to locate and identify the
premises with reasonable effort, and whether there is any
reasonable probability that another premise might be mistakenly
searched." (internal quotation marks and citations omitted).
The warrant in Bonner was held to be valid despite its omission
of the house number, because it included an adequate description
of the premises to be searched and because, as in the present
case, an agent who had been involved with surveillance of the
house had accompanied the search team. The incorrect address
did not invalidate the warrant where "[t]here was no risk that
federal agents would be confused and stumble into the wrong
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house, or would take advantage of their unforeseeable windfall
and search houses indiscriminately, . . . ." Id. at 866.
We rule that the warrant was properly issued and
executed.
9. Whether the district court
omitted key instructions from
the instruction on a
continuing criminal
enterprise.
Defendant asserts that the district court’s charge to
the jury was deficient in that it failed to (1) define the
meaning of the terms “organizer,” “supervisor” and “manager,”
(2) instruct the jury on what was meant by acting “in concert or
together with” five or more other persons,” (3) instruct as to
which individuals were countable in the “five or more other
persons,” and (4) sufficiently communicate the need of the jury
to unanimously identify each underlying violation. He argues in
the alternative that the failure to object on this issue
constituted ineffective assistance of counsel.
Because defendant did not raise any of these objections
after the charge and before the jury started deliberations, we
review the district court’s instructions for plain error. In
United States v. Olano, 507 U.S. 725, 732 (1993), the Supreme
Court defined this standard of review as requiring "an 'error'
that is 'plain' and that 'affect[s] substantial rights.' . . .
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Moreover, Rule 52(b) leaves the decision to correct the
forfeited error within the sound discretion of the court of
appeals, and the court should not exercise that discretion
unless the error 'seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.'”
The prosecution argues that a district court has no
obligation to define terms generally understood by the average
person and that therefore defendant’s first two claims are
meritless. We agree with the government's argument in this
regard. See United States v. De LaCruz, 902 F.2d 121, 123 (1st
Cir. 1990). Regarding the third claim, the prosecution notes
that there were nine defendants at trial (the tenth having pled
guilty) and that it thus went without saying who could be
counted. As to the final claim, the prosecution asserts that
the district court was clear in indicating that the jury had to
unanimously agree on which three violations constituted the
series of three or more violations.
The district court's charge to the jury on Count 1 of
the indictment, the continuing criminal enterprise charge, was
as follows:
In Count 1 of the indictment two of
the defendants are charged, Jose Vega
Figueroa and Carlos Hernandez Vega. The law
makes it a federal crime or offense for
anyone to engage in what is called a
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continuing criminal enterprise involving
controlled substances.
A defendant can be found guilty of
that offense only if all of the following
facts are proved beyond a reasonable doubt:
First, that the defendants violated
Section 841(a)(1) as charged in the
indictment. This is the drug trafficking
case.
Second, that such violations were part
of a continuing series of violations as
herein after defined.
Third, that such continuing series of
violations were undertaken by the defendants
in concert or together with at least five or
more other persons.
Fourth, that the defendant occupied
the position of an organizer, supervisor or
manager.
Fifth, that the defendant obtained
substantial income or resources in the
continuing series of violations.
A continuing series of violations
means proof of at least three violations
under the Federal controlled substances law,
as charged in Count 1 of the indictment, and
also requires a finding that those
violations were connected together as a
series of related or ongoing activities as
distinguished from isolated and disconnected
acts. You must unanimously agree on which
three violations constitute the series of
three or more violations in order to find
the essential element of No. 2 of this
offense has been proven.
It must also be proved that the
defendants engaged in the continuing series
of violations with at least five or more
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persons, whether or not those persons are
named in the indictment and whether or not
the same five or more persons participated
in each of the violations, or participated
at different times. And, it must be proved
that the defendant's relationship with the
other five or more persons was that of
organizers, supervisors or managers – that
the defendant's relationship with the other
five or more persons was that of organizer,
supervisor or manager, and that the
defendant was more than a fellow worker and
either organized or directed the activities
of the others, whether the defendant was the
only organizer or supervisor or not.
Finally, it must be proved that the
defendant obtained substantial income or
resources from the continuing series of
violations.
(emphasis added).
Given the language of the charge, we cannot conclude
that the instructions on this issue were defective, much less
plainly erroneous.
Defendant's alternative claim – that the failure to
object on this issue constitutes ineffective assistance of
counsel – depends on whether we find any merit in his argument
that the jury instructions were flawed. Because we find that
the jury instructions were not flawed, we do not discuss
defendant's alternate claim of ineffective assistance of
counsel.
10. Whether the jury engaged in
improper deliberations prior
to the closing of the case.
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During the trial, the jury requested to see the scene
of the two murders at Hogar Crea, a drug detention and
rehabilitation facility where members of the conspiracy had set
up a second drug point. In response, the district court
instructed the jury to wait until the government had presented
its case-in-chief and that if, at that time, it still wished to
see the scene, it should renew its request at that time.
Defendant asserts that this request demonstrates that the jury
had been deliberating and weighing the evidence before all of
the evidence had been presented, and that the court erred in
failing to remind the jury that it was not within its province
to determine what evidence it should consider. Because
defendant did not raise this objection during trial, we review
the district court's failure to so instruct for plain error. See
Olano, 507 U.S. at 732.
The record shows the jury was instructed at the
beginning of the trial that they should not discuss the case
until instructed to do so, and that the court concluded every
session by warning the jury: "Do not discuss the case with
anyone," or "Do not discuss it among yourselves or with anyone."
We do not think that the desire of the jury to view a drug point
is any indication that it disregarded the court’s repeated and
explicit instructions and engaged in improper deliberations.
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For the foregoing reasons, the judgment below is
affirmed.
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United States v. Vega-Figueroa
Court: Court of Appeals for the First Circuit
Date filed: 2000-12-18
Citations: 234 F.3d 744
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