United States v. Rivera-Rodriguez

United States Court of Appeals
For the First Circuit

No. 08-1799

UNITED STATES OF AMERICA,
Appellee,

v.

GABRIEL RIVERA-RODRÍGUEZ,
Defendant, Appellant.

No. 08-1822

UNITED STATES OF AMERICA,
Appellee,

v.

EXCEL A. MUÑIZ-MASSA,
Defendant, Appellant.

No. 08-1828

UNITED STATES OF AMERICA,
Appellee,

v.

EDUARDO PABÓN-MANDRELL,
Defendant, Appellant.

No. 08-1960

UNITED STATES OF AMERICA,
Appellee,

v.

JOSÉ RIVERA-MORENO,
Defendant, Appellant.
No. 08-2143

UNITED STATES OF AMERICA,
Appellee,

v.

CHRISTIAN ARZOLA-MARTÍNEZ,
Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Aida M. Delgado-Colón, U.S. District Judge]

Before

Lynch, Chief Judge,
Torruella and Selya, Circuit Judges.

Anita Hill-Adames, for appellant Rivera-Rodríguez.
Raúl S. Mariani-Franco, for appellant Muñiz-Massa.
Rafael F. Castro-Lang, for appellants Pabón-Mandrell and
Arzola-Martínez.
Rosa I. Bonini-Laracuente, for appellant Rivera-Moreno.
Luke V. Cass, Assistant United States Attorney, with whom Rosa
Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez-
Sosa, Assistant United States Attorney, Chief, Appellate Division,
were on brief for appellee.

August 25, 2010

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 TORRUELLA, Circuit Judge. Gabriel Rivera-Rodríguez

("Rivera-Rodríguez"), Excel Muñiz-Massa ("Muñiz-Massa"), Eduardo

Pabón-Mandrell ("Pabón-Mandrell"), José Rivera-Moreno ("Rivera-

Moreno"), and Christian Arzola-Martínez ("Arzola-Martínez"),

(collectively "Appellants") were convicted by a jury of a drug

trafficking conspiracy. Appellants were later sentenced to lengthy

prison terms.

On appeal, Appellants challenge both their convictions

and sentences. They advance a spate of claims in the process,

including challenges to certain evidentiary rulings the district

court made, challenges to the sufficiency of the evidence

underlying their convictions, a challenge to the ex parte

communications the district judge conducted with prospective jurors

during voir dire, and challenges to the district court's sentencing

process and outcomes. After careful review of the record, we find

that the district court did not abuse its discretion regarding the

evidentiary rulings and that the evidence adduced at trial was

sufficient for the jury to convict Arzola-Martínez, Muñiz-Massa,

and Rivera-Moreno. We also find that the ex parte conversations

the district judge held with prospective jurors, though troubling,

did not amount to plain error. Moreover, we find that the district

court did not err when it provided Arzola-Martínez with the

opportunity to allocute during sentencing or when it found Rivera-

Rodríguez individually responsible for at least 4.5 kilograms of

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crack cocaine. Finally, we find that the district court committed

no error concerning the prior criminal histories of Arzola-Martínez

or Pabón-Mandrell when calculating their sentences. Given our

findings, we affirm in all respects.

I. Background and Procedural History

A. Indictment (2007)

On March 19, 2007, a grand jury sitting in the District

of Puerto Rico returned a two-count indictment against the five

Appellants and thirty-seven other individuals. Count One of the

indictment charged that, between an unknown date ("but no later

than in or about 2003") and 2007, the group of forty-two defendants

conspired to possess with intent to distribute and did distribute

narcotics, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 860.1

B. Joint Trial and Appeal (2008)

Over the course of twelve days from February 11 to 27,

2008, Appellants were tried jointly. Appellants, witnesses, and

the government referred to the drug trafficking organization of

which Appellants were accused of being members as "Las Avispas" (in

English, "The Wasps"). The original Las Avispas, Las Avispas Uno,

operated in the Borinquen Ward of Guayama, Puerto Rico. After

approximately forty-three members of Las Avispas Uno were arrested

in 2002, the organization reconstituted itself in 2003 as Las

1
Count Two, relating to forfeiture of property upon a conviction
under Count One, 21 U.S.C. § 853(a)(1) and (2), was dismissed at
each Appellant's sentencing hearing.

-4-
Avispas Dos, also in the Borinquen Ward. Las Avispas Dos managed

a drug distribution point, Las Vías, approximately 752 feet from

the Luis Muñoz Elementary School ("the School"), which was

operational at the time. Multiple witnesses testified at trial

that Las Avispas Dos also operated a second drug distribution

point, La Pluma.

At trial, the government presented evidence that

Appellants were each active members, if not leaders, of Las Avispas

Dos, which conspired to distribute heroin, cocaine, cocaine base

(also known as crack cocaine), and marijuana. Evidence presented

at trial also indicated that members of Las Avispas Dos, including

some Appellants, (1) possessed firearms to ward off rival drug

trafficking organizations and to maintain control over their drug

distribution points and (2) killed and attempted to kill

individuals to further intimidate and exert control. Among other

things, the government specifically alleged that Rivera-Rodríguez

and Muñiz-Massa, along with two indicted co-conspirators not

appellants in this case, killed Ricardo Haddock-Collazo ("Haddock

-Collazo"), on or about September 12, 2004, "since they believed he

was providing information about the drug distribution organization

to law enforcement authorities."

On the final day of the trial, the jury found each

Appellant guilty as to Count One of the indictment. Furthermore,

the jury unanimously agreed to the following findings, by proof

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beyond a reasonable doubt: (1) all Appellants conspired to possess

with the intent to distribute fifty grams or more of a mixture or

substance containing cocaine base (crack); (2) Muñiz-Massa, Pabón-

Mandrell, and Rivera-Moreno conspired to possess with the intent to

distribute one kilogram or more of a mixture or substance

containing a detectable amount of heroin; (3) Arzola-Martínez and

Rivera-Rodríguez conspired to possess with the intent to distribute

less than one hundred grams of a mixture or substance containing a

detectable amount of heroin; (4) all Appellants conspired to

possess with the intent to distribute five kilograms or more of a

mixture or substance containing a detectable amount of cocaine; (5)

Muñiz-Massa, Pabón-Mandrell, Rivera-Moreno, and Rivera-Rodríguez

conspired to possess with the intent to distribute one hundred

kilograms or more of a mixture or substance containing a detectable

amount of marijuana; (6) Arzola-Martínez conspired to possess with

the intent to distribute less than one hundred kilograms of a

mixture or substance containing a detectable amount of marijuana;

and (7) all Appellants were involved in conspiracy and drug

distribution activities that took place within 1,000 feet of a

public and/or private school.

Appellants were sentenced between May and July of 2008.

On May 20, the district court sentenced Rivera-Rodríguez to a term

of imprisonment of forty-three years followed by a term of

supervised release of fifteen years. On May 30, the district court

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sentenced Muñiz-Massa to a term of imprisonment of sixty years

followed by a term of supervised release of fifteen years. On

June 6, the district court sentenced Pabón-Mandrell to a term of

imprisonment for the remainder of his natural life followed by a

term of supervised release of ten years. On June 25, the district

court sentenced Rivera-Moreno to a term of imprisonment of thirty-

five years followed by a term of supervised release of fifteen

years. Finally, on July 28, the district court sentenced Arzola-

Martínez to a term of imprisonment for the remainder of his natural

life followed by a term of supervised release of fifteen years.2

Between May and August of 2008, each Appellant filed his

timely notice of appeal. Each Appellant raises multiple issues on

appeal.3 First, we address challenges by Arzola-Martínez, Muñiz-

2
In the companion cases of United States v. Cintrón-Echautegui,
604 F.3d 1 (1st Cir. 2010), and United States v. Rivera-Moreno, No.
08-1961, 2010 U.S. App. LEXIS 14677 (1st Cir. July 19, 2010), two
co-conspirators in Las Avispas Dos pled guilty to the conspiracy
count, and we affirmed the district court's judgments in each case.
3
Besides the issues discussed here, Arzola-Martínez, Pabón-
Mandrell, and Rivera-Rodríguez raised, in their initial brief,
another issue, concerning the number of peremptory challenges the
district court granted to the prosecution at trial. These
Appellants argued that the district court committed plain error
when it granted the prosecution twelve peremptory challenges, which
these Appellants argued violated Federal Rule of Criminal Procedure
24(b)(2). These Appellants thus requested that we find that the
district court committed plain error and grant them a new trial.
In supplemental appellate briefing that we ordered both parties to
submit after oral argument, the government noted that, during a
supplemental conference with the district court on March 12, 2010,
"[t]he district court and the trial attorneys (both for the
government and defense) clarified that although the record says
'12' only six (6) peremptory challenges were given to the

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Massa, and Rivera-Moreno to the district court's evidentiary

rulings. Second, we consider the argument made by these three

Appellants that the evidence presented at trial was insufficient

for a jury to find them guilty beyond a reasonable doubt. We then

consider, under plain error review, whether the ex parte

conversations that the district judge held with prospective jurors

violated Appellants' Sixth Amendment rights. Finally, we evaluate

various issues raised concerning the sentencing of Arzola-Martínez,

Rivera-Rodríguez, and Pabón-Mandrell.

II. Discussion

A. Evidentiary Rulings

On appeal, Arzola-Martínez, Muñiz-Massa, and Rivera-

Moreno claim that the district court made several erroneous

evidentiary rulings at trial. We disagree. We conclude that the

district court did not abuse its discretion in making the

evidentiary rulings at issue.

1. Standard / Scope of Review

We review a district court's evidentiary rulings and

Brady determinations for abuse of discretion. United States v.

DeCologero, 530 F.3d 36, 65 (1st Cir. 2008); United States v.

Walter, 434 F.3d 30, 33 (1st Cir. 2006). We review de novo

"whether the strictures of the Confrontation Clause have been met."

government with two challenges for the 3 alternates." Appellants
conceded the point during that conference, and so we do not address
this issue further.

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Walter, 434 F.3d at 33 (quoting United States v. Vega Molina, 407

F.3d 511, 522 (1st Cir. 2005))(internal quotation marks omitted).

"Only rarely -- and in extraordinarily compelling circumstances --

will we, from the vista of a cold appellate record, reverse a

district court's on-the-spot judgment concerning the relative

weighing of probative value and unfair effect." Freeman v. Package

Mach. Co., 865 F.2d 1331, 1340 (1st Cir. 1988).

2. Analysis

a. Arzola-Martínez

Arzola-Martínez claims that the district court erred when

it allowed the prosecution to present, as evidence of his

membership in the conspiracy, a firearm and narcotics the police

seized during separate arrests that he argues were unconnected to,

even if they were contemporaneous with, the charged conspiracy.

Arzola-Martínez argues that no evidence linked these events to the

charged conspiracy, so admission of these events was improper

character evidence under Rule 404(b) and prejudicial under Rule

403.

Víctor Javier Veguilla-Figueroa ("Officer Veguilla-

Figueroa"), a member of the Puerto Rico Police Department ("PRPD"),

testified that, around 9:00 p.m. on October 13, 2005, a date which

fell within the time frame of the charged conspiracy, he and two

other PRPD police officers performing surveillance in Guayama

received a communication over their radio that three individuals in

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a particular vehicle were armed and had threatened someone.

Officer Veguilla-Figueroa stated that he and his colleagues

identified and pursued the car, which initially refused to stop.

When the vehicle finally did stop, Officer Veguilla-Figueroa placed

the driver, Arzola-Martínez, under arrest and searched him, seizing

a firearm.

José A. Ortiz-Reyes ("Officer Ortiz-Reyes"), another PRPD

member, testified that, around 2:20 p.m. on April 24, 2006, he and

a fellow PRPD police officer performing preventive patrolling in

Guayama observed a particular vehicle almost negligently collide

with a second vehicle. Officer Ortiz-Reyes indicated to the driver

of the first vehicle that he should stop. Instead, the vehicle

fled, and Officer Ortiz-Reyes chased it. After the vehicle finally

did stop, Officer Ortiz-Reyes approached it and observed on the

back floor rug behind the seat of the passenger, whom Officer

Ortiz-Reyes identified as Arzola-Martínez, a plastic ziplock bag

containing plastic vials filled with powder that later tested

positive for cocaine. The police then arrested Arzola-Martínez and

the vehicle's driver.

The police retrieved the gun from Arzola-Martínez, who

possessed the weapon during the time and in the vicinity of the

drug conspiracy. The police retrieved the narcotics from a car in

which Arzola-Martínez was a passenger during the time and in the

vicinity of the drug conspiracy. We have previously found that the

-10-
presence of firearms and narcotics is probative of an intent to

distribute narcotics. See United States v. Rivera-Calderón, 578

F.3d 78, 94 (1st Cir. 2009) (holding that a gun retrieved by police

from a defendant who possessed the gun during the time and in the

vicinity of a drug conspiracy "clearly was relevant evidence" and

made it more probable that the defendant was a member of this

particular conspiracy because, "in drug trafficking[,] firearms

have become 'tools of the trade' and thus are probative of the

existence of a drug conspiracy." (citation and internal quotation

marks omitted)); see also United States v. Cannon, 589 F.3d 514,

518-19 (1st Cir. 2010). Because the events to which Officer

Veguilla-Figueroa and Officer Ortiz-Reyes testified occurred at the

time and in the vicinity of the conspiracy, and also because the

evidence confiscated included "tools of the trade" used in the

conspiracy, the district court did not abuse its discretion in

admitting the testimonies of Officer Veguilla-Figueroa and Officer

Ortiz-Reyes as relevant to Arzola-Martínez's role in the

conspiracy.

b. Muñiz-Massa

As we discuss below, the district court did not abuse its

discretion in making its rulings related to the first three of four

evidentiary rulings Muñiz-Massa claims were erroneous, and we need

not reach the fourth.

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 First, Muñiz-Massa claims that the district court erred

when it prevented him from fully cross-examining the criminal

histories of Carlos Brito-Pacheco ("Brito-Pacheco") and José

Rivera-Díaz ("Rivera-Díaz"), the government's two cooperating

witnesses, for the purpose of impeaching them as witnesses against

him. Muñiz-Massa argues that the district court's evidentiary

ruling that prevented the defense from effectively cross-examining

the government's two main witnesses as to their prior convictions

and arrests unfairly infringed Muñiz-Massa's Confrontation Clause

right under the Sixth Amendment.

We have previously noted that

the right to cross-examination is not
unbridled. So long as the trial court affords
the defendant a fair opportunity for effective
cross-examination, it may impose reasonable
restrictions based on concerns such as undue
prejudice, confusion of the issues, witness
badgering, redundancy, or questioning that
appears to be of marginal relevance. The
trial court's latitude in shaping such
restrictions is "wide."

United States v. Molina, 407 F.3d 511, 523 (1st Cir. 2005)

(internal citation omitted). Specifically, as relevant to Muñiz-

Massa's claim, we have observed that district courts may exercise

discretion in restricting a defendant's impeachment of a witness

against him by limiting cross-examination of that witness's prior

conduct. See United States v. Bunchan, 580 F.3d 66, 71 (1st Cir.

2009)(finding no abuse of discretion in the district court's

restriction of appellant's cross-examination regarding criminal

-12-
charges pending against a witness where the district court found

reference to the nature of the charged crime too prejudicial under

Federal Rule of Evidence 403); see also Fed. R. Evid. 403; Fed. R.

Evid. 608.

At one point during cross-examination, defense counsel

sought to show that Brito-Pacheco was in prison in 2004 and so

could not have had first-hand knowledge of events concerning Las

Avispas Dos during a portion of the time to which he testified. In

front of the jury, defense counsel asked Brito-Pacheco if it was

true that, after his release from prison on June 16, 2003, he was

"sent back to jail because [he] did not comply with the conditions

[of his probation], right?" On the government's objection that

defense counsel's suggestion was not in good faith (because the

government claimed the defense counsel knew that Brito-Pacheco was

not, in fact, sent back to jail for violating the conditions of his

probation) and would leave the jury with an incorrect impression

about when Brito-Pacheco was incarcerated, the district court

determined that Brito-Pacheco was, in fact, imprisoned from

September 2002 to June 2003 and again from September 2005 through

and including his testimony at trial in February 2008, and so was

"out on the streets" in 2004.4 After this review of Brito-

Pacheco's criminal history, the defense counsel acknowledged

4
The record is not clear about the nature of these two arrests
and convictions. We can only glean that they were related to
weapons charges.

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"[t]hat clears it up Your Honor" and that he had "no problem with

that." At a later point during cross-examination, defense counsel,

Brito-Pacheco, the district court, and the government engaged in

the following dialogue:

[Defense counsel]: I would like to get a
chronology of your arrests, convictions,
revocations. You were first arrested back in
the year 2000 what?

[Brito-Pacheco]: 2002

[Defense counsel]: Was that a drug charge?

[The government]: Objection, and we object as
to the line of questioning being asked and
answered as to the specific - -

[The court]: The objection goes as to the
nature of the charges. There has been
testimony as to the arrests and sentences.

While Muñiz-Massa claims in his appellate brief that, at this

point, the trial court "prevented defense counsel from cross-

examining the nature of the prior criminal charges presented

against Brito-Pacheco," it is clear from the record that the trial

court made no ruling either way on the government's objection and

defense counsel did not seek to clarify or otherwise pursue the

matter at trial. Instead, the district court permitted defense

counsel, uninterrupted, to establish for the jury the dates during

which Brito-Pacheco was incarcerated in order to make the point, in

front of the jury, that Brito-Pacheco had "no personal knowledge of

anything that occurred in this case after September of 2005." We

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thus find that the district court allowed Muñiz-Massa "a fair

opportunity for effective cross-examination" of Brito-Pacheco.

With respect to Rivera-Díaz, defense counsel attempted to

question the witness about whether he qualified for a reduction in

the range of his sentencing for a previous arrest.5 Rivera-Díaz

responded during the cross-examination that he did not qualify for

the sentence reduction. The defense counsel then sought to admit

Rivera-Díaz's plea agreement about the prior arrest as an exhibit

and to ask Rivera-Díaz why he did not qualify for the sentence

reduction. On the government's objection that the prior conviction

did not entail truthfulness or dishonesty, the district court

stated that it would not permit defense counsel's further

questioning on the matter. The district court stated that the

defense counsel's line of questioning was not in good faith because

the attorney already knew that Rivera-Díaz did not qualify for the

sentence reduction, and the exhibit could only mislead the jury

into thinking otherwise.

In another instance, defense counsel asked Rivera-Díaz to

explain the criminal history category listed on his plea agreement.

Rivera-Díaz responded that he could not explain the concept. On

the government's objection to defense counsel continuing the line

of questioning, the district court asked defense counsel to explain

5
The record is not clear about the nature of this arrest.
Defense counsel stated that it was for larceny but noted that
Rivera-Díaz said it was drug-related.

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where the questioning was leading. Defense counsel responded that

he intended to elicit from Rivera-Díaz that the criminal history

category is based on the record of conviction and then to ask the

witness about his prior conviction and government cooperation. The

district court precluded the line of questioning because it

concluded that the questioning was not to be used to explain the

legal principles involved in various criminal history categories,

as defense counsel claimed, but rather to introduce, indirectly,

the witness's prior criminal convictions that were otherwise

inadmissible. In sum, the district court, through the application

of Federal Rule of Evidence 608(b) and the balancing required by

Federal Rule of Evidence 403, determined that cross-examination of

the prior criminal conduct of Rivera-Díaz in these two instances

was prohibited.

As in Bunchan, see id. at 71, and as Muñiz-Massa

acknowledges, the district judge did permit other cross-examination

of each witness. Both witnesses were cross-examined on their drug

sales and usage, and Brito-Pacheco was also cross-examined on the

fact of his imprisonment from 2002 to 2003 and from 2005 until his

testimony at trial and on his cooperation with the government in

2006. Any restriction of Muñiz-Massa's Confrontation rights was

thus reasonable.

Second, Muñiz-Massa contends that the district court

erred when it allowed the government to present witness testimony

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through the use of leading questions. Muñiz-Massa argues that, at

one point during cross-examination, Rivera-Díaz listed the members

of Las Avispas but did not mention Muñiz-Massa, saying, after

naming fourteen members, that he did not "recall anybody else[]

right off the top of my head." Muñiz-Massa argues that the

prosecutor then, on redirect examination, had to lead the witness

to elicit a response that included Muñiz-Massa in the membership of

Las Avispas Dos. The prosecutor asked Rivera-Díaz "what were the

different roles of the members of Las Avispas, that you see here

today?" The district court overruled defense counsel's objection

that the question went beyond his cross-examination, stating that,

although defense counsel had not specifically inquired about the

roles of Las Avispas Dos members, because Rivera-Díaz provided a

description of roles in cross-examination from other attorneys, the

district judge would allow the testimony. After the prosecutor

asked "out of the members of Las Avispas that are present here in

court, what are their different roles?," Rivera-Díaz then

identified Muñiz-Massa as a "pusher," or "seller," at Las Vías.

In another instance, when the government asked Rivera-

Díaz to "identify which members of Las Avispas actually carried

firearms with them," Rivera-Díaz did not include Muñiz-Massa in the

list. The government then asked Rivera-Díaz: "Are you aware of any

of the members of Las Avispas that you have identified here in

court today, that used to carry firearms?" Defense counsel

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objected, stating that the prosecution "is trying to jiggle the

witness recollection." The district court overruled the objection,

stating "[t]he government may refresh his recollection, with a

document or statements or asking him to look around . . . . [T]his

morning we had to take a break because [Rivera-Díaz] had not eaten.

So the government is entitled to probe, and refresh other things

for this witness." The government then asked Rivera-Díaz:

"[L]ooking around in the courtroom and out of the members of Las

Avispas that you have identified that are present here in court,

are you aware if any of them used to carry firearms?" Rivera-Díaz

then identified, among others, Muñiz-Massa.

We have found that any error in the prosecution's use of

leading questions is harmless where there is no evidence that the

leading questions prompted inaccurate testimony. See United States

v. De León-Quiñones, 588 F.3d 748, 756-57 (1st Cir. 2009). Here,

the district court explained that it would permit the questions

over defense counsel's objections because they were designed to

elicit further information to which the witness previously

testified and also because they were used to refresh recollection.

Two days before both of the incidents described above, Rivera-Díaz

had identified Muñiz-Massa as a "seller" for Las Avispas Dos who

"always had the pistol on him and he was always hanging out with

[Rivera-Rodríguez]." That testimony is consistent with Rivera-

Díaz's testimony, in response to leading questions, two days later

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about Muñiz-Massa's membership in Las Avispas Dos and gun

possession. We thus conclude that any error in allowing these

leading questions was harmless and that there is no evidence that

they prompted inaccurate testimony.

Third, Muñiz-Massa argues that the district court erred

when it admitted the testimony of Brito-Pacheco, a cooperating

witness, about Muñiz-Massa's alleged admission that he participated

in Haddock-Collazo's murder. Specifically, Muñiz-Massa claims that

the government failed to disclose his inculpatory admission to the

defense before the government presented Brito-Pacheco's testimony

at trial. Muñiz-Massa argues that this disclosure was required

pursuant to Bruton v. United States, 391 U.S. 123 (1968), and its

progeny, which held that "a defendant is deprived of his Sixth

Amendment right of confrontation when the facially incriminating

confession of a nontestifying codefendant is introduced at their

joint trial, even if the jury is instructed to consider the

confession only against the codefendant." Richardson v. Marsh, 481

U.S. 200, 207 (1987)(citing Bruton, 391 U.S. at 135-36). However,

although Muñiz-Massa objected at trial to Brito-Pacheco's testimony

about Muñiz-Massa's admission on hearsay grounds, Muñiz-Massa did

not object on Bruton grounds. Muñiz-Massa thus waived any

objection to this matter by not raising it at trial. See Campos-

Orrego v. Rivera, 175 F.3d 89, 95 (1st Cir. 1999) ("We have

reiterated, with a regularity bordering on the echolalic, that a

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party's failure to advance an issue in the nisi prius court

ordinarily bars consideration of that issue on appellate review.").

Furthermore, even if Muñiz-Massa had raised this matter at trial,

Bruton is inapplicable because the statement in question was his

own, not that of a codefendant. The district court thus did not

err in admitting Brito-Pacheco's testimony about Muñiz-Massa's

alleged admission.

Finally, Muñiz-Massa contends that the district court

erred when it admitted photographic evidence of Haddock-Collazo's

murdered body. Rule 403 gives trial courts broad discretion to

reject evidence when its probative value is substantially

outweighed by the danger of unfair prejudice. Fed. R. Evid. 403;

see also United States v. Smith, 292 F.3d 90, 99 (1st Cir. 2003).

In a prosecution alleging that the defendants participated in a

murder, the district court may conclude that photographic evidence

of the murder helps the jury understand the nature and severity of

the charged conduct and is not unfairly prejudicial. See United

States v. Cartano, 420 F.2d 362, 364-65 (1st Cir. 1970); see also,

e.g., United States v. Greatwalker, 356 F.3d 908, 912-13 (8th Cir.

2004). Even if the district court abused its discretion here,

which we seriously doubt, any purported error was harmless in light

of the other overwhelming evidence against Muñiz-Massa. See United

States v. Hicks, 575 F.3d 130, 143 (1st Cir. 2009) ("We review non-

constitutional evidentiary errors for harmlessness; an error is

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harmless if it is 'highly probable that the error did not influence

the verdict.'" (citation omitted)).

c. Rivera-Moreno

Rivera-Moreno claims that the government violated his

rights protected by Brady v. Maryland, 373 U.S. 83 (1963), when it

failed to disclose the allegedly exculpatory testimony Rivera-Díaz

provided during sentencing, which Rivera-Moreno claims contradicted

testimony Rivera-Díaz provided during trial. Rivera-Moreno's claim

concerns testimony Rivera-Díaz provided in an interview with a

probation officer during the preparation of Rivera-Moreno's

Presentence Investigation Report ("PSR").

Rivera-Moreno concedes that "[t]he government's

obligations under Brady only extend to information in its

possession, custody, or control." United States v. Hall, 434 F.3d

42, 55 (1st Cir. 2006). Nevertheless, Rivera-Moreno contends that

the government had a duty to learn and disclose the details of

Rivera-Díaz's sentencing-related testimony. That, however, is not

the law. "While a prosecutor must disclose information maintained

by government agents even if the prosecutor herself does not

possess the information, this duty does not extend to information

possessed by government agents not working with the prosecution."

Id. (internal citations omitted). Rivera-Díaz's sentencing-related

testimony was maintained by the probation officer preparing the

PSR, and there is no evidence that the federal prosecutor or any

-21-
agent working on the U.S. Attorney's behalf had this information

prior to or during trial. Accordingly, the government committed no

Brady violation.

B. Sufficiency of the Evidence

At the close of the government's case-in-chief, Arzola-

Martínez, Muñiz-Massa, and Rivera-Moreno each filed a timely motion

for judgment of acquittal under Federal Rule of Criminal Procedure

29(a) ("Rule 29 motion"). The district court denied each of these

motions and proceeded with closing arguments before submitting the

case to the jury. On appeal, these three Appellants, although not

challenging whether a drug conspiracy existed, claim that the

evidence presented at trial was insufficient for a jury to find

them guilty of participating in it.6 These three Appellants thus

request that we reverse their convictions and remand their cases to

the district court for a new trial. We decline to do so. In this

section, we consider whether the evidence discussed in the previous

section, along with other evidence, could have led a reasonable

jury to find each of these three Appellants guilty beyond a

reasonable doubt of the conspiracy charged. We conclude that a

6
Arzola-Martínez and Muñiz-Massa also attack the credibility of
witnesses who testified at trial as a basis for finding that the
evidence was insufficient for a jury to find them guilty. However,
"[w]e do not assess the credibility of a witness, as that is a role
reserved for the jury." United States v. Troy, 583 F.3d 20, 24
(1st Cir. 2009) (citation and internal quotation marks omitted).
We thus need not consider this matter.

-22-
reasonable jury could find Appellants guilty beyond a reasonable

doubt.

1. Standard / Scope of Review

We review the denial of a Rule 29 motion for judgment of

acquittal de novo. Troy, 583 F.3d at 24. In so doing,

we examine the evidence, both direct and
circumstantial, in the light most favorable to
the jury's verdict. We do not assess the
credibility of a witness, as that is a role
reserved for the jury. Nor need we be
convinced that the government succeeded in
eliminating every possible theory consistent
with the defendant's innocence. Rather, we
must decide whether that evidence, including
all plausible inferences drawn therefrom,
would allow a rational factfinder to conclude
beyond a reasonable doubt that the defendant
committed the charged crime.

Id. (internal citations and quotation marks omitted).

"We have described this standard of review as

'formidable,' and defendants challenging convictions for

insufficiency of evidence face an uphill battle on appeal." United

States v. Lipscomb, 539 F.3d 32, 40 (1st Cir. 2008) (internal

citation, quotation marks, and brackets omitted). We have

repeatedly emphasized, however, that, "despite the prosecution-

friendly overtones of the standard of review, appellate oversight

of sufficiency challenges is not an empty ritual." United States

v. De La Cruz-Paulino, 61 F.3d 986, 999 n.11 (1st Cir. 1995)

(citation and quotation marks omitted).

-23-
 2. Legal Framework

Appellants were charged with participating in a

conspiracy to distribute drugs. We have previously found that,

[t]o establish that a conspiracy existed, the
government had to prove beyond a reasonable
doubt that each defendant knowingly and
voluntarily agreed with others to commit a
particular crime. Such an agreement may be
express or tacit, that is, represented by
words or actions, and may be proved by direct
or circumstantial evidence.

Rivera-Calderón, 578 F.3d at 88-89 (citations omitted); United

States v. Famania-Roche, 537 F.3d 71, 78 (1st Cir. 2008). "To

establish that the defendants belonged to and participated in the

drug conspiracy, the government must show two kinds of intent:

intent to agree and intent to commit the substantive offense."

United States v. Bristol-Mártir, 570 F.3d 29, 39 (1st Cir. 2009)

(citation and internal quotation marks omitted). We have also

previously observed that "[u]nder established case law, members of

a conspiracy are substantively liable for the foreseeable criminal

conduct of the other members of the conspiracy." United States v.

Hurley, 63 F.3d 1, 22 (1st Cir. 1995) (citing Pinkerton v. United

States, 328 U.S. 640 (1946)). However, "the government need not

show that the conspirators knew all the details of the conspiracy."

United States v. Orrego-Martínez, 575 F.3d 1, 8 (1st Cir. 2009)

(citation and internal quotation marks omitted).

-24-
 3. Analysis

a. Arzola-Martínez

Arzola-Martínez argues that evidence of what he claims

were merely "occasional" sales of "small" amounts of cocaine to

Rivera-Rodríguez was insufficient to warrant his conviction as a

conspirator of Las Avispas Dos or to establish a violation of 21

U.S.C. § 860. Arzola-Martínez contends that the prosecution did

not establish that he had a stake in the success of the retail

sales made by the drug organization at the housing project or in

its profits. Furthermore, Arzola-Martínez argues that, because

there was no evidence that Arzola-Martínez sold cocaine to Rivera-

Rodríguez near the School, the evidence was insufficient to convict

him under 21 U.S.C. § 860.

Arzola-Martínez's arguments miss the mark. We find that

sufficient evidence was presented at trial for a rational jury to

conclude beyond a reasonable doubt that Arzola-Martínez was a

conspirator of Las Avispas Dos and to establish his violation of 21

U.S.C. § 860. First, a former member of both Las Avispas Uno and

Dos, Brito-Pacheco, testified that Arzola-Martínez was a member of

Las Avispas Dos with whom he would "sell drugs" and "shoot" people.

Brito-Pacheco further testified that Arzola-Martínez "quite

frequently" sold cocaine in the Borinquen Ward to Rivera-Rodríguez

in order for Rivera-Rodríguez to manufacture crack because the

crack "sells alot [sic] and makes alot [sic] of money."

-25-
 Second, as discussed above, Officer Veguilla-Figueroa

testified that when he arrested Arzola-Martínez in 2005, Officer

Veguilla-Figueroa seized a firearm from him. Third, also as

discussed above, Officer Ortiz-Reyes testified that in 2006 Arzola-

Martínez was a passenger in a car in which the police found plastic

vials of a substance later shown to contain cocaine. A search of

the vehicle conducted in the presence of both Arzola-Martínez and

the driver also uncovered in the front glove compartment $468 in

cash, which Arzola-Martínez told Officer Ortiz-Reyes belonged to

him.

We find that this direct and circumstantial evidence was

sufficient to convict Arzola-Martínez of Count One. The testimony

of these three witnesses about Arzola-Martínez's role,

relationships, and activities in Las Avispas Dos was sufficient for

a reasonable jury to conclude that Arzola-Martínez knowingly and

voluntarily agreed with others to participate in Las Avispas Dos's

drug-related activities. A reasonable jury could conclude from

Brito-Pacheco's testimony that Arzola-Martínez was a member of Las

Avispas Dos who engaged in drug dealing, shooting people, and

supplying cocaine to Rivera-Rodríguez. A reasonable jury could

infer from the testimony of Officer Veguilla-Figueroa and Officer

Ortiz-Reyes that the firearm, cocaine, and cash they found on or

with Arzola-Martínez were related to his participation in Las

Avispas Dos. Not only, as discussed above, have we previously

-26-
found the presence of drugs and guns to be probative of an intent

to distribute narcotics, but we have also found lesser sums than

that with which Arzola-Martínez was found to be "substantial

amounts [of cash]" that, when discovered near narcotics in a

vehicle, "support the inference that the car's occupants were

engaged in the sale, rather than casual use, of drugs." Cannon,

589 F.3d at 518.

In order to convict Arzola-Martínez of the charged

conspiracy, the government need not have established that Arzola-

Martínez sold cocaine at a particular frequency or of a certain

amount, or that he had a personal stake in the success of Las

Avispas Dos's sales or profits. Rather, the government only had to

prove that he was a member of the conspiracy and that the sales and

profits were reasonably foreseeable to him. As discussed above,

the government met that burden.

The government, moreover, need not have established that

Arzola-Martínez himself sold cocaine near the School, again so long

as the government proved he was a member of the conspiracy and the

location of those sales was reasonably foreseeable to him.

According to a former member of Las Avispas Uno and Dos, Rivera-

Díaz, Las Avispas Dos members would prepare crack in a house

adjacent to the School. As discussed above, Las Vías, a drug

distribution point Las Avispas Dos managed, was located

approximately 752 feet from the School.

-27-
 b. Muñiz-Massa

Muñiz-Massa claims that the evidence was "insufficient to

show [his] knowledge and/or participation in" the conspiracy. In

particular, Muñiz-Massa alleges that "it was never clear on the

record whether he was associated and part of the 'Las V[í]as' or

'La Pluma' drug organization or both."

At trial, cooperating witness Brito-Pacheco testified

that, like Arzola-Martínez, Muñiz-Massa was a member of Las Avispas

Dos with whom he would "sell drugs" and "shoot" people. Brito-

Pacheco specified that Muñiz-Massa sold drugs and was a "runner"7

for Las Avispas Dos. Brito-Pacheco further testified that Muñiz-

Massa was his partner in selling drugs in order to "keep an eye on

each other and to make money [for] both of us." Brito-Pacheco also

stated that Muñiz-Massa told him that, in September 2004 and in

furtherance of the charged conspiracy, Muñiz-Massa, along with

Rivera-Rodríguez and three others, killed Haddock-Collazo, whom

they suspected of cooperating with law enforcement's investigation

of Las Avispas Dos. Brito-Pacheco helped dispose of the body. In

his testimony at trial, Charles Alvarado-Dávila, a member of the

PRPD, corroborated Brito-Pacheco's description of the date on

which, and the location where, Haddock-Collazo's body was found,

7
Rivera-Díaz testified that a runner "is in charge of keeping the
material in his house to then bring it over to the drug point and
hand it over to the seller, and then to collect the monies and keep
it for the owner of the material."

-28-
its condition, and, also consistent with Brito-Pacheco's testimony,

that the body had been moved between two locations. At trial, a

forensic pathologist testified that, through an autopsy she

performed on his body, she determined Haddock-Collazo's cause of

death to be from "severe head trauma." This testimony was

consistent with the description of the murder about which Brito-

Pacheco testified that Muñiz-Massa had told him.

Rivera-Díaz testified that, during the course of and

related to the charged conspiracy, he saw Muñiz-Massa carry

firearms. Rivera-Díaz stated that Muñiz-Massa "would sell for [Las

Avispas Dos] . . . . He always had the pistol on him and he was

always hanging out with [Rivera-Rodríguez]."

We find that this evidence was sufficient to convict

Muñiz-Massa. The testimony of these four witnesses about Muñiz-

Massa's role, relationships, and activities in Las Avispas Dos was

sufficient for a reasonable jury to conclude that Muñiz-Massa

knowingly and voluntarily agreed with others to participate in Las

Avispas Dos's drug-related activities, engaged in drug dealing and,

in furtherance of the conspiracy, violently confronted other people

whom Muñiz-Massa perceived as a threat to the organization.

As discussed above, multiple witnesses testified at trial

that the single Las Avispas Dos organization operated two drug

distribution points, called Las Vías and La Pluma. Las Avispas Dos

-- and not Las Vías and La Pluma -- was the organization of which

-29-
Muñiz-Massa and others were charged with being members. The jury

could have reasonably concluded that Las Vías and La Pluma, both

areas in the Borinquen Ward of Guayama, were merely locations of

Las Avispas Dos's operations. The government need only to have

proven beyond a reasonable doubt that Muñiz-Massa was involved in

Las Avispas Dos, irrespective of his involvement in a particular

drug distribution point, and it did just that.

c. Rivera-Moreno

Rivera-Moreno claims that the record lacked "any evidence

or a reliable inference from any evidence to establish any intent

or partial intent to enter into an agreement" sufficient to convict

him of the charged conspiracy. We find otherwise.

According to Rivera-Díaz's testimony at trial, in 2003,

he and other former members of Las Avispas Uno, including Rivera-

Moreno (Rivera-Díaz's brother-in-law), met to discuss the

establishment, management, and operation of Las Avispas Dos.

Rivera-Díaz testified that, because Rivera-Moreno "was the runner

for the owner of [Las Avispas Uno] . . . and he knew who to buy the

drugs or heroin from," the group decided that Rivera-Moreno would

"stay in charge" of Las Avispas Dos, which meant he would "be the

owner of the [drug distribution] point." Rivera-Díaz also

testified that Rivera-Moreno would obtain heroin from a contact and

then pass it along to other members of Las Avispas Dos who served

as runners and distributors. Rivera-Díaz further testified to

-30-
Rivera-Moreno's leadership role in Las Avispas Dos when the former

stated that the latter "ordered" Las Avispas Dos members "not to

sell on Holy Friday" and that the runner of heroin for Las Avispas

Dos would give to Rivera-Moreno $9.00 of the $10.00 cost of each of

800 to 900 packages of heroin sold during each of three shifts per

day.

A second cooperating witness, Brito-Pacheco, corroborated

Rivera-Díaz's testimony about Rivera-Moreno's participation in Las

Avispas Dos, including Rivera-Moreno's role as the organization's

heroin supplier. As he had done with Arzola-Martínez and Muñiz-

Massa, Brito-Pacheco testified that he would "sell drugs" and

"shoot" people with Rivera-Moreno.

A third witness, César Alicea-Léon ("Alicea-Léon"),

testified that, between 2003 and 2006, he distributed "large

amounts" of heroin to Rivera-Moreno, whom Alicea-Léon stated "was

in charge" of the drug distribution point in the Borinquen Ward.

A fourth witness, Roberto Ayala-Vega ("Officer Ayala-

Vega"), who worked in the PRPD's Tactical Division from 2005 to

2007, testified that on or about November 4, 2006 he was patrolling

the Borinquen Ward when Rivera-Moreno and another person "became

aware of [his] patrol car . . . . They started running off and

they dropped controlled substances . . . ." Field tests later

revealed that the substances contained cocaine and heroin, which a

trained and licensed chemist at the Puerto Rico Forensic Science

-31-
Institute specializing in controlled substances corroborated in

separate testimony. In the vehicle Rivera-Moreno and his associate

abandoned, Officer Ayala-Vega found Rivera-Moreno's driver's

license, Social Security card, and medical plan card.

Rivera-Moreno argues that this evidence is insufficient

because "[t]he United States did not have available at trial any

audio, video[,] or photograph depicting [him] doing any illegal

act. Much less, we should consider that no firearms, monies, or

drugs were either seized or observed in [his] immediate presence."

However, as we have previously observed, "[t]he fact that the

government did not present certain kinds of evidence does not

[necessarily] mean that there was insufficient evidence for

conviction." United States v. Liranzo, 385 F.3d 66, 70 (1st Cir.

2004).

We find that the evidence presented was sufficient to

convict Rivera-Moreno. The testimony of these four witnesses about

Rivera-Moreno's role, relationships, and activities in Las Avispas

Dos was sufficient for a jury to conclude beyond a reasonable doubt

that Rivera-Moreno knowingly and voluntarily agreed with others to

participate in, if not also to lead, Las Avispas Dos's drug-related

activities.

In sum, a jury could have found beyond a reasonable doubt

that Arzola-Martínez, Muñiz-Massa, and Rivera-Moreno were guilty of

participating in the charged conspiracy. We have previously found

-32-
similar evidence sufficient to sustain a drug-related conspiracy

conviction. See, e.g., United States v. Rodríguez-Lozada, 558 F.3d

29, 39 (explaining that "[t]he evidence is more than sufficient for

a rational jury to find" that defendant was part of a drug-

trafficking conspiracy where there was evidence of defendant's

drug-related relationships and drug-supplying activities).

C. Ex Parte Communications

A third claim concerns the process by which the district

court conducted voir dire at trial. In their initial appellate

briefs, Arzola-Martínez, Pabón-Mandrell, and Rivera-Rodríguez

claimed that the district court committed plain error when it

conducted individual, ex parte voir dire of prospective jurors,

which these Appellants argue violated Federal Rule of Criminal

Procedure 43(a)(2). Through supplemental briefing that we ordered

during oral argument, which the parties filed after the district

judge held a supplemental hearing on March 12, 2010 ("the

supplemental hearing"), the other two Appellants, Muñiz-Massa and

Rivera-Moreno, also asserted this claim, arguing that "the method

employed [was] the equivalent of depriving [A]ppellants of their

Sixth Amendment constitutional right to a public trial and that

they be present during all stages of the trial." Appellants thus

request we find that the district court committed plain error by

engaging in ex parte communications with prospective jurors and

grant Appellants a new trial. The government responds that any ex

-33-
parte conversations between the judge and jurors were not

structural error and harmless beyond a reasonable doubt, and, in

any case, Appellants waived any objection to them by not raising

the matter at trial. As discussed below, we find that the ex parte

conversations that the district judge held with prospective jurors

should be reviewed under -- and fail to satisfy -- the plain error

standard.

1. Standard / Scope of Review

Neither Appellants nor the government objected to the ex

parte communications described below at trial. The Supreme Court

recently clarified the standard of review an appellate court must

apply when considering a claim not raised at trial. See United

States v. Marcus, 130 S. Ct. 2159, 2164 (2010). The Supreme Court

observed that "[Federal] Rule [of Criminal Procedure] 52(b) permits

an appellate court to recognize a 'plain error that affects

substantial rights,' even if the claim of error was 'not brought'

to the district court's 'attention.'" Id.; see also Fed. R. Crim.

P. 52(b). The Court held:

an appellate court may, in its discretion,
correct an error not raised at trial only
where the appellant demonstrates that (1)
there is an error; (2) the error is clear or
obvious, rather than subject to reasonable
dispute; (3) the error affected the
appellant's substantial rights, which in the
ordinary case means it affected the outcome of
the district court proceedings; and (4) the
error seriously affect[s] the fairness,
integrity or public reputation of judicial
proceedings.

-34-
Marcus, 130 S. Ct. at 2164 (alteration in original)(citations and

internal quotation marks omitted).

As discussed below, we assume arguendo that Appellants'

claim satisfies the first and second prong of the Supreme Court's

articulation of the plain error standard. However, because we do

not find that Appellants' claim satisfies the third prong, we need

not resolve the fourth prong, and Appellants' claim fails. Before

engaging in our plain error review, we summarize the ex parte

communications and the district court's rationale for them.

2. The Ex Parte Communications

Appellants claim, and the government does not refute,

that the district court conducted ex parte examinations of fifteen

prospective jurors -- Juror Nos. 1, 2, 3, 10, 13, 21, 23, 35, 40,8

41, 47, 58, 60, 64, and 66 -- out of a total of seventy-one

prospective jurors.9,10 In other words, 21 percent of the

8
An inconsistency exists in the record with respect to Juror No.
40. At one point during voir dire on February 11, 2008, Juror No.
40 is recorded as referring to "my wife," whereas at another point
on the same day the juror is recorded as referring to "[m]y
husband." Furthermore, despite the jury list indicating a female
name for Juror No. 40, the district judge, during the supplemental
hearing, referred to the prospective juror using the masculine
pronoun and mentioned the juror's "wife." The gender of the juror
and the juror's spouse are irrelevant to our inquiry, so we need
not resolve these matters.
9
We derive the total number of prospective jurors from the
district judge's list provided in Appellants' supplemental brief.
10
In the cases of Juror Nos. 2 and 35, the trial transcript does
not explicitly state that the conversations occurred "[a]t the
bench," as the trial transcripts of the other ex parte

-35-
prospective jurors were examined ex parte by the district court.

Six of those prospective jurors -- Juror Nos. 1, 2, 10, 23, 35, and

40 -- were not excused by the district judge and thus were

candidates for peremptory strike challenges. Four of those

unexcused prospective jurors -- Juror Nos. 10, 23, 35, and 40 --

were struck by the defendants (the government did not strike any of

them), leaving two of those prospective jurors -- Juror Nos. 1 and

2 -- on the panel. As a result, 16.7 percent of the empaneled

jurors were subjected to ex parte communications by the court

during the voir dire process.

The district judge employed various methods for

memorializing these ex parte communications. For ex parte

communications do.
In the case of Juror No. 2, the district judge summarized the
conversation when she summarized the ex parte communications she
conducted with other prospective jurors, suggesting that the
judge's communication with this juror was also ex parte. During
the supplemental hearing, the district judge resolved this matter
by acknowledging that the prospective juror "was examined at the
bench."
In the case of Juror No. 35, the trial transcript reflects
that that prospective juror stated his number and then that the
district judge summarized what the prospective juror said. This
portion of the transcript thus suggests that the district judge did
conduct an unrecorded ex parte communication with this prospective
juror.
Given that (1) the district judge summarized the conversations
she had with both Juror Nos. 2 and 35, as she did with the other
thirteen prospective jurors with whom she conducted ex parte
communications, (2) Appellants claim and the government does not
refute that Juror Nos. 2 and 35 were subject to ex parte
communications, and (3) the district judge concedes that at least
the communication with Juror No. 2 was ex parte, we assume that
both of these jurors were indeed among the prospective jurors
questioned by the district judge outside the presence of counsel.

-36-
communications with nine of the fifteen prospective jurors (Juror

Nos. 1, 2, 3, 10, 13, 21, 23, 40, and 47), the court reporter was

present and the trial transcript thus reflects the conversations

between the district judge and the prospective jurors. For ex

parte communications with six of the prospective jurors (Juror Nos.

35, 41, 58, 60,11 64, and 66), the court reporter was not present

and the trial transcript thus does not reflect the conversations

between the district judge and the prospective jurors, or at least,

in one of these cases (Juror No. 60), what the prospective juror

said. After each of these six sets of unrecorded ex parte

communications, the district judge provided a summary of the

conversation, as reflected in the trial transcript.

In the course of conducting these ex parte communications

with prospective jurors, the district judge made at least two

mistakes of fact and at least one significant omission when

summarizing the prospective jurors' statements to counsel. The two

mistakes of fact concerned Juror Nos. 1 and 2, both of whom, as

noted above, were ultimately empaneled on the jury. The omission

11
In the case of Juror No. 60, the trial transcript omits what the
prospective juror said, noting only that it was in Spanish. The
trial transcript does, however, reflect what the district judge
stated. Because the transcript of the district judge's statement
is within the portion of the transcript noted as being "[a]t the
bench," and not "[i]n open court," that suggests that, contrary to
Appellants' claim, the court reporter was present and did
transcribe the district judge's statement, but omitted the
prospective juror's statement. The Spanish answers of Juror No. 60
could have been translated by the court reporter if proper
procedure had been followed.

-37-
concerned Juror No. 40, who, as noted above, was later removed by

a peremptory strike exercised by defense counsel.

During the ex parte communication that the district judge

held with Juror No. 1, that juror told the judge that his "son is

incarcerated in the state of Florida for a drug related charge"

(emphasis added). However, when summarizing the ex parte

communication to counsel, the judge stated that this juror's "son

had a drug case for which he is incarcerated in the state of

Connecticut" (emphasis added). When asked whether either counsel

wanted to question this juror, both parties did so briefly about a

previous case in which the individual served as a juror. During

the supplemental hearing, the district judge acknowledged that the

state in which the juror's son was incarcerated "may have been

misstated" but noted that "the information that the individual had

a son incarcerated for a conviction . . . is correct."

During the ex parte communication that the district judge

held with Juror No. 2, the juror told the judge that he "was a

witness in court, in a criminal case for the defense" (emphasis

added). When asked by the judge if it was "a drug case," the juror

responded that "[i]t was a criminal state case" (emphasis added).

However, when summarizing the ex parte communication to counsel,

the judge stated that this juror "served as a witness in a local

court case, he was a witness for the defense and it was a sex

offender case. He was a witness for the defense in a criminal sex

-38-
offender case" (emphasis added). When asked whether either counsel

wanted to question this juror, both parties declined.

During the ex parte communication that the district judge

held with Juror No. 40, the juror told the judge: "The brother of

my wife has been a drug user for sometime [sic]. He is now in the

mental ward, he has never been a [sic] accused or anything like

that, but that is the situation." When asked by the judge "[d]oes

that affect your impartiality?," the juror responded "[h]opefully

not." The record indicates that this information was not conveyed

to counsel, either during the judge's summaries of the ex parte

communications to counsel or at any other time.

3. The District Court's Rationale for the Ex Parte
Communications

The district judge explained, before conducting the ex

parte communications, that she felt they were necessary "to save

time," because, given that the trial involved multiple defendants,

"having 12 attorneys moving into and out of the bench [would] be

time consuming." The district judge stated at the beginning of

voir dire that, after she heard all of the prospective jurors'

excuses for not being empaneled, she would "make a judgment call

jointly with the attorneys." The district judge also stated that

ex parte communications would enable prospective jurors to discuss

"personal matters" with the judge that the jurors did not "want to

share . . . publicly." It was thus the district court -- not one

-39-
of the parties -- that, sua sponte, initiated ex parte

communications.

At the supplemental hearing, the district judge stated

multiple times that the communications described above were all "on

the record," despite not occurring in the presence of counsel and

some not being recorded by the court reporter. She justified her

explanation by stating that "notes were taken." The district court

further stated that several of the communications are "not an

issue" because the "juror was excused for cause" and thus "never

became a member of the jury panel."

4. Plain Error Review

As the government concedes, ex parte communications

between the judge and the jury may raise concerns under Federal

Rule of Criminal Procedure 43(a) and the Fifth and Sixth

Amendments. See Presley v. Georgia, 130 S. Ct. 721, 724 (2010)

(holding that the Sixth Amendment right to a public trial extends

to voir dire); United States v. Gagnon, 470 U.S. 522, 528

(1985)(explaining that the Sixth Amendment's Confrontation Clause

gives the defendant the right to be present and confront all

witnesses and evidence against him and that the Fifth Amendment's

Due Process Clause protects the right to be present "in some

situations where the defendant is not actually confronting

witnesses or evidence against him"); Illinois v. Allen, 397 U.S.

337, 338, 342-43 (1970)(holding that the Sixth Amendment protects

-40-
a defendant's right not to be completely excluded from voir dire);

Fed. R. Crim. P. 43(a).

Still, the defendant's right to be present during voir

dire is not absolute; it must be balanced against the need to

conduct a fair, safe, and orderly trial. See, e.g., Presley, 130

S. Ct. at 724-25 (noting that some circumstances may justify

closing voir dire to the public); Gagnon, 470 U.S. at 526-27

(noting that "[t]he defense has no constitutional right to be

present at every interaction between a judge and a juror" and

holding that the Due Process Clause only protects the accused's

right to be present when his presence has a reasonably substantial

relationship to the need to defend himself); Allen, 397 U.S. at

342-43 (holding that a defendant, with disruptive behavior, may

forfeit his Sixth Amendment right to be present); see also United

States v. Collazo-Aponte, 216 F.3d 163, 182 (1st Cir. 2000)(finding

no Rule 43 violation when the defendant was "restricted from full

participation in a limited number of sidebar conferences that

occurred during voir dire").

We assume arguendo that the first and second prongs of

plain error review, as articulated in Marcus, are satisfied based

on Federal Rule of Criminal Procedure 43(a) and the Fifth and Sixth

Amendments. We thus consider the third prong in more detail. The

Supreme Court noted that, "[i]n the ordinary case, to meet this

[third prong] standard[,] an error must be 'prejudicial,' which

-41-
means that there must be a reasonable probability that the error

affected the outcome of the trial." Marcus, 130 S. Ct. at 2164.

In further explicating this prong, the Supreme Court noted "the

possibility that certain errors, termed 'structural errors,' might

'affect substantial rights' regardless of their actual impact on an

appellant's trial." Id.

We have previously observed that "[t]he [Supreme] Court

has classified an error as structural in only a very limited class

of cases." United States v. Fazal-Ur-Raheman-Fazal, 355 F.3d 40,

48 (1st Cir. 2004)(citation and internal quotation marks omitted).

Examples of structural errors that the Court has identified include

"complete denial of counsel, presence of a biased trial judge,

racial discrimination in the selection of a grand jury, denial of

self-representation at trial, denial of a public trial, and

offering a defective reasonable doubt instruction." Id. (internal

citations omitted). As we do not find that the ex parte

communications constituted such "structural error," we assess

whether there is "a reasonable probability that the error affected

the outcome of the trial."

Very few of these ex parte communications even arguably

affected the outcome of the trial. Of the fifteen ex parte

communications, only six were not placed on the record, and of

those six, only three jurors' information was incorrectly or

incompletely communicated to the parties. Further, we cannot see

-42-
how, had the district judge correctly told the parties that Juror

No. 1's son was incarcerated in Florida rather than Connecticut,

the parties would have responded differently. That leaves us with

only two jurors as the bases for Appellants' claim of substantial

prejudice.

We find no reasonable probability that errors as to these

jurors affected the trial's outcome. Appellants' argument asks us

to make too many assumptions. Juror No. 2 did not answer the

district judge's question about what kind of trial he was a witness

in. Yet Appellants ask us to assume that, had the district court

merely reported that he had been a witness in a criminal trial,

counsel would have followed up and successfully learned what kind

of trial it was. Counsel explicitly declined to ask any other

questions of the witness at the court's invitation. Moreover, we

must assume that the juror testified in a drug case, which

Appellants have not established. And we must assume that, although

he was a witness for the defense, Juror No. 2's participation in

this hypothetical drug case so biased him against the defense that

he affected the guilty verdict. These guesses do not establish a

reasonable probability that Juror No. 2's participation affected

the outcome of the trial.

Appellants make an equally attenuated argument regarding

Juror No. 40, whose brother-in-law abused drugs. Appellants

exercised a peremptory challenge and struck this juror. Thus, to

-43-
conclude that the court's mistake probably changed the outcome of

the trial, we must assume that Appellants would have moved to

strike this juror for cause and that the court would have granted

the motion. We further must assume that Appellants would have

exercised the peremptory they used for Juror No. 40 on another

juror and that this other juror's replacement would have voted for

an acquittal.

Because of the highly speculative nature of these

counterfactuals and in light of the very strong evidence against

these Appellants, we cannot conclude with any reasonable

probability that the district judge's omission regarding Juror No.

40, along with the error the district judge made with respect to

Juror No. 2, necessarily affected the outcome of the district court

proceedings. We do not, for example, have any basis in the record

to conclude that the ex parte communications and what followed from

them violated Appellants' Sixth Amendment right to an impartial

jury or that any change in the jury composition -- whether or not

it was impartial -- would have affected the outcome of the district

court's proceedings. Cf. United States v. González-Meléndez, 594

F.3d 28, 34 (1st Cir. 2010)("[T]here is no basis in the record for

concluding that the alteration in jury composition had an injurious

influence on the verdict.").

Because Appellants cannot satisfy the third prong of the

plain error test as articulated by the Supreme Court in Marcus,

-44-
they fail to satisfy the plain error test itself. We thus need not

reach the fourth prong, concerning whether "the error seriously

affect[s] the fairness, integrity or public reputation of judicial

proceedings." Marcus, 130 S. Ct. at 2164.

D. Arzola-Martínez's Allocution

We next address a claim concerning Arzola-Martínez's

right to allocute during sentencing. Arzola-Martínez argues that

the district court committed reversible error during his sentencing

hearing when it granted him the opportunity to address his

objections only to the PSR, a constraint which Arzola-Martínez

argues violated Federal Rule of Criminal Procedure 32(i)(4)(A)(ii)

in not permitting him a full, personal opportunity to speak or

present information to mitigate his sentence. Arzola-Martínez thus

requests that we remand his case to the district court for

resentencing.

1. Standard / Scope of Review

We review de novo a sentencing court's compliance with

procedural rules, including Federal Rule of Criminal Procedure 32.

United States v. Burgos-Andújar, 275 F.3d 23, 28 (1st Cir. 2001).

2. Legal Framework

Federal Rule of Criminal Procedure 32(i)(4)(A)(ii)

provides that, before imposing a sentence, the court must "address

the defendant personally in order to permit the defendant to speak

or present any information to mitigate the sentence." Where the

-45-
court does not afford a defendant this opportunity or its

functional equivalent, "the reviewing court must remand the case

for resentencing, generally without needing to inquire into

prejudice." United States v. Catalán-Román, 585 F.3d 453, 475 (1st

Cir. 2009) (citing Burgos-Andújar, 274 F.3d at 28).

We have found that the right of allocution conferred to

criminal defendants by Rule 32(i)(4)(A)(ii) can be satisfied by its

"functional equivalent." United States v. Mescual-Cruz, 387 F.3d

1, 11 (1st Cir. 2004). "To achieve functional equivalency, the

court, the prosecutor, and the defendant must at the very least

interact in a manner that shows clearly and convincingly that the

defendant knew he had a right to speak on any subject of his

choosing prior to the imposition of sentence." Id. (citation and

internal quotation marks omitted).

3. Analysis

During the sentencing hearing that the district judge

conducted with Arzola-Martínez on July 28, 2008, the court

discussed Arzola-Martínez's PSR with his counsel, Juan Pedrosa

("Pedrosa"). At the end of that discussion, during which Pedrosa

raised several objections to the PSR, the court asked Pedrosa: "So,

counsel, any other statements that you would be submitting on

behalf of your client?" Pedrosa responded: "No, Your Honor, just

for allocution on his behalf."

-46-
 After Pedrosa allocuted on behalf of Arzola-Martínez, the

district court stated that "[Pedrosa] mentioned that [his] client

wanted to address the court," and so asked Arzola-Martínez: "Let me

ask you if you have any objections, any other objections or any

objections that you would like to discuss with the court, to the

contents of the [PSR]?" After taking issue with some portions of

the PSR, Arzola-Martínez argued that he was not guilty as a co-

conspirator in Las Avispas Dos. He denied knowing certain

witnesses or having visited certain places crucial to his

conviction. After hearing Arzola-Martínez's statement, the court

asked: "Any other statements[?]" Arzola-Martínez's counsel

responded: "No [y]our Honor."

From the record of he sentencing transcript, several

aspects of Arzola-Martínez's hearing are clear. The district judge

provided Pedrosa with the opportunity to speak or present any

information to mitigate the sentence of his client, Arzola-

Martínez, which Pedrosa then did, asserting that he was doing so on

his client's "behalf." The district judge then addressed Arzola-

Martínez personally in soliciting any objections to the PSR

specifically, which Arzola-Martínez then provided and took the

opportunity to broaden into more general comments about the facts

alleged in the instant case. Afterwards, in the context of this

conversation between the district judge and Arzola-Martínez, the

district judge generally provided further opportunity to speak or

-47-
present any information to mitigate the sentence by soliciting

"[a]ny other statements," an invitation that Pedrosa answered in

the negative on behalf of himself and his client. Although Pedrosa

answered this question, it may well have been directed to Arzola-

Martínez.

We find that Arzola-Martínez was afforded the functional

equivalent of the right to allocute during his sentencing hearing.

That the trial court did not address its final question to Pedrosa

by name or otherwise seem to address the question to any particular

person supports the conclusion that the district court did not deny

Arzola-Martínez his allocution opportunity. See Green v. United

States, 365 U.S. 301, 304 (1961) (finding that the district court

did not deny the defendant the allocution opportunity to which Rule

32(a) entitled him where the trial judge's question, "Did you want

to say something?," without being addressed to any particular

person, "may well have been directed to the defendant and not to

his counsel"); see also Domenica v. United States, 292 F.2d 483,

486 (1st Cir. 1961) (distinguishing Green, 365 U.S. 301, by noting

that in Domenica "there can be no mistake [about to whom an

invitation for allocution was directed]. . . [because] the court's

question was addressed to counsel by name"). The totality of the

circumstances suggests to us that the interactions between the

court, the prosecutor, and Arzola-Martínez "show[] clearly and

convincingly that the defendant knew he had a right to speak on any

-48-
subject of his choosing prior to the imposition of sentence."

Mescual-Cruz, 387 F.3d at 11. We have held similarly in another

case where a criminal defendant was not explicitly invited by the

district court to speak on any subject of his choice. See United

States v. O'Connell, 252 F.3d 524, 528 (1st Cir. 2001)(holding that

the record demonstrated "clearly and convincingly" that criminal

defendant "knew of his right to speak prior to the imposition of

his sentence and that he took advantage of that opportunity by

communicating those things that he found important to say" where

defense counsel "seized the opportunity before the district court

had the chance to address [the defendant] unprompted," "expressed

his views on an appropriate sentence," and indicated that his

client would like to address the court, which the client then did).

Accordingly, the district court committed no error concerning

Arzola-Martínez's allocution.

E. Rivera-Rodríguez's Sentencing Based on Drug Quantity
Responsibility

Rivera-Rodríguez argues that his sentence was based on an

unreliable calculation of the quantity of drugs attributable to

him. Specifically, he contends, the district court committed clear

error in determining that the average weight of each crack capsule

at the Borinquen Ward drug point was 0.075 grams, as this

calculation was unsubstantiated by the evidence presented at trial.

The district court, Rivera-Rodríguez argues, thus erroneously found

him responsible for a total of more than 4.5 kilograms of crack

-49-
cocaine.12 Rivera-Rodríguez requests that we remand this issue to

the district court for resentencing.

1. Standard / Scope of Review

"We review the district court's factual finding as to

drug quantity for clear error." United States v. Correa-Alicea,

585 F.3d 484, 489 (1st Cir. 2009) (citation omitted); see also

United States v. Feliciano-Rodríguez, 525 F.3d 85, 107 (1st Cir.

2008)("A district court's factual finding regarding the amount of

drugs attributable to a member of a drug conspiracy will be

disturbed only if it is clearly erroneous."(citation omitted)). We

have found that, to determine drug quantity, a district court

looks to all acts that were part of the same
course of conduct or common scheme or plan as
the offense of conviction, and takes into
account not only what the defendant knew, but
what conduct he reasonably foresaw. . . .
Thus, each co-conspirator is responsible not
only for the drugs he actually handled but
also for the full amount of drugs that he
could reasonably have anticipated would be
within the ambit of the conspiracy. The trial
court's determination of drug quantity need
only be by a preponderance of the evidence and
is not required to be an exact determination
but rather only a reasoned estimate. Further,
if the trial court bases its estimate on one
of two plausible views, the determination is
not clearly erroneous.

12
Rivera-Rodríguez does not challenge the mathematical formula and
hypotheticals that the district court employed to conclude that if
a vial of crack cocaine weighed 0.075 grams, Rivera-Rodríguez would
be responsible for a total of more than 4.5 kilograms of crack
cocaine. We thus focus only on Rivera-Rodríguez's challenge to the
average weight of each vial.

-50-
Feliciano-Rodríguez, 525 F.3d at 107 (internal citations and

quotation marks omitted). We also review for clear error

challenges to factual findings made at sentencing. United States

v. Shinderman, 515 F.3d 5, 18 (1st Cir. 2008).

2. Factual Findings

José A. Mercado-Negrón ("Mercado-Negrón"), a chemist who

had worked twenty-six years for the Puerto Rico Forensic Science

Institute, where he analyzed controlled substances, including crack

cocaine, testified at trial. He stated that he had analyzed

controlled substances in "thousands of cases" and had testified as

an expert witness in federal court approximately five to six times

and in state court hundreds of times. Mercado-Negrón further

stated that, based on his experience analyzing crack cocaine seized

in the area of Guayama, the average weight of a capsule of such

crack cocaine was approximately 0.075 grams. Based on his

testimony, the district court concluded that, in a given year, Las

Avispas Dos could distribute 27 kilograms of crack cocaine and,

through the life of the conspiracy, 109 kilograms of crack cocaine.

3. Analysis

Rivera-Rodríguez makes much ado about the fact that

Mercado-Negrón did not personally weigh the capsules of crack

cocaine distributed by Las Avispas Dos and instead relied on his

experience to provide his estimate of 0.075 grams per capsule. As

Rivera-Rodríguez points out, at trial, the only exhibit upon which

-51-
Mercado-Negrón relied was of powder cocaine, not crack cocaine.

That exhibit contained two bags of powder cocaine totaling 0.080

grams that Rivera-Rodríguez sold to Luis A. Sepúlveda-Rivera

("Officer Sepúlveda-Rivera"), a member of the PRPD, in July 2006

while Officer Sepúlveda-Rivera was working undercover.

Furthermore, Rivera-Rodríguez points to testimony of Rivera-Díaz in

which Rivera-Díaz stated that he did not weigh the amounts of crack

cocaine he placed into vials to be sold because he did not have the

proper equipment to do so and because he did not pay attention to

exactly what amount of crack cocaine he would measure and then

deposit into the vials.

We find that the district court did not clearly err in

relying on Mercado-Negrón's figure of 0.075 grams of crack cocaine

per capsule even though Mercado-Negrón did not personally weigh the

capsules of crack cocaine at issue in this case. "The court's

finding as to drug quantity was not a mere hunch or intuition, but

was a reasoned estimate based on reliable evidence in the record."

Correa-Alicea, 585 F.3d at 490 (internal citation and quotation

marks omitted). The district court's reasoned estimate here was

based on Mercado-Negrón's extensive experience as a forensic

chemist specializing in controlled substances, including crack

cocaine, for which he was admitted to testify at trial as an

expert, and he had previously analyzed crack cocaine seized from

the location in which Las Avispas Dos operated. Rivera-Rodríguez

-52-
also presented no developed argument about an alternative weight on

which the district court could rely to formulate its calculations

for sentencing. It was thus in the district court's discretion to

rely on Mercado-Negrón's testimony in assessing the drug quantity

for which Rivera-Rodríguez was responsible. See United States v.

Rivera-Maldonado, 194 F.3d 224, 228 n.2 (1st Cir. 1999) ("The

sentencing court possesses broad discretion in determining which

data are sufficiently dependable for sentencing purposes.").

Indeed, other circuits "have endorsed other practices that yield

only very rough estimates of quantity." United States v. Uwaeme,

975 F.2d 1016, 1019 (4th Cir. 1992).

F. Arzola-Martínez's and Pabón-Mandrell's Sentencing Based on
Prior Criminal History

Arzola-Martínez and Pabón-Mandrell argue that the

district court, in calculating their sentences, erroneously used

their prior criminal histories. Arzola-Martínez contends that the

district court improperly used his prior simple possession

deferrals, which he argues never became final convictions, to apply

the three strikes mandatory life imprisonment provisions of 21

U.S.C. §§ 841(b)(1)(A), 851, and 860. Pabón-Mandrell contends that

the district court improperly utilized his two simple possession

narcotics convictions, the underlying conduct of which was

specifically included as an overt act of Count One, to apply the

three strikes mandatory life imprisonment provisions of 21 U.S.C.

§§ 841(b)(1)(A), 851, and 860. Arzola-Martínez and Pabón-Mandrell

-53-
thus request that we set aside their sentences and remand their

cases to the district court for resentencing.

The government responds that Arzola-Martínez and Pabón-

Mandrell's sentences should be affirmed because their prior

felonies were sufficient under 21 U.S.C. § 851. As discussed

below, we agree.

1. Standard / Scope of Review

We review de novo questions of the proper interpretation

of statutes, including whether prior convictions count for purposes

of 21 U.S.C. § 851. See United States v. Lino, 493 F.3d 41, 43

(1st Cir. 2007). To trigger "a mandatory term of life imprisonment

without release," 21 U.S.C. § 841(b)(1)(A) requires that the

defendant have "two or more prior convictions for a felony drug

offense" and that those prior convictions "have become final."

2. Analysis

a. Arzola-Martínez's Sentencing

To support its determination that Arzola-Martínez was

subject to a life sentence under the provisions of 21 U.S.C.

§ 841(b)(1)(A), the district court cited three instances in 2000 in

which Arzola-Martínez was found in possession of marijuana and/or

crack cocaine. These arrests and related charges were processed by

the Commonwealth of Puerto Rico. The cases were consolidated and,

in 2001, upon Arzola-Martínez's guilty plea to the charges, the

Puerto Rico Superior Court ("PRSC") placed Arzola-Martínez on

-54-
probation for a term of eighteen months under a rehabilitation

program. Pursuant to a favorable 2002 report by the coordinator of

Arzola-Martínez's rehabilitation program, the PRSC expunged what

the PSR termed the "conviction" resulting from these incidents.

Arzola-Martínez argues that, contrary to the requirements

of 21 U.S.C. § 841(b)(1)(A), none of these instances, which Arzola-

Martínez characterizes as "simple drug possession cases," qualify

as a "prior conviction[]" that has "become final." Arzola-Martínez

bases this contention on his argument that, "since no conviction

nor finding of guilt was ever entered[,] no appeal could have been

taken." To support this conclusion, Arzola-Martínez notes that he

entered the rehabilitation program and the PRSC expunged the record

of these two cases. He further observes that Puerto Rico Rule of

Criminal Procedure 247.1 provides that the rehabilitation program

be "implemented without a finding of guilt" and "shall not be

deemed as a conviction."

Arzola-Martínez's arguments are unavailing. The Supreme

Court and our circuit indicate that federal law and not, as Arzola-

Martínez argues, Puerto Rico Rule of Criminal Procedure 247.1

determines whether these instances constitute prior convictions

under 21 U.S.C. § 851. Cf. Dickerson v. New Banner Inst., Inc.,

460 U.S. 103, 111-12 (1983) ("Whether one has been 'convicted'

within the language of the gun control statutes is necessarily

. . . a question of federal, not state, law, despite the fact that

-55-
the predicate offense and its punishment are defined by the law of

the State. This makes for desirable national uniformity unaffected

by varying state laws, procedures, and definitions of

'conviction.'" (internal citations omitted)); United States v.

Bustamante, 706 F.2d 13, 14 (1st Cir. 1983) (describing the holding

in Dickerson). Although Dickerson and Bustamante related to the

federal gun control statute, we see no justification why their

underlying reasoning should not be applied, as here, to felony drug

offenses. Indeed, we have already cited the principles for which

Dickerson and Bustamante stand in adjudicating other cases

involving felony drug offenses. See United States v. Cuevas, 75

F.3d 778, 782 (1st Cir. 1996)("The decisions in Dickerson and

Bustamante still stand for the proposition that, absent legislative

indication to the contrary, the meaning of 'conviction' for

purposes of a federal statutory scheme is to be determined under

prevailing federal law."). Consequently, we find that the district

court properly considered Arzola-Martínez's prior criminal history

based on federal -- not state -- law.

Moreover, we find that these incidents do constitute

"convictions" for the purposes of 21 U.S.C. § 851. We agree with

our sister courts of appeals that,

[f]or purposes of sentences imposed under
§ 841, . . . Congress has not exempted from
the "prior convictions" that must be counted
those convictions removed from a criminal
record for policy reasons unrelated to
innocence or an error of law. The courts of

-56-
 appeals that have considered this § 841
question therefore have counted prior felony
drug convictions even where those convictions
had been set aside, expunged, or otherwise
removed from a defendant's record for such
reasons.

United States v. Law, 528 F.3d 888, 911 (D.C. Cir. 2008)(citing

cases from the Second, Third, Fourth, Fifth, Seventh, Ninth, and

Eleventh Circuits). We thus find that Arzola-Martínez's prior

offenses qualify as "convictions" pursuant to 21 U.S.C. § 851.

b. Pabón-Mandrell's Sentencing

On March 30, 2005, Pabón-Mandrell was arrested for

illegally possessing, with the intent to distribute, cocaine ("the

2005 incident"). His conviction became final on June 20, 2006,

when he was sentenced to probation. Pabón-Mandrell argues that,

when the government chose to include the 2005 incident as part of

Count One,13 the government "waived the right to claim the local

conviction arising out of said incident as a predicate 'prior'

conviction for purposes of qualifying [Pabón-Mandrell] as a third

strike offender." Pabón-Mandrell bases this argument on our

holding in United States v. De Jesús-Mateo that "[p]rior felony

drug convictions will be counted separately for purposes of 21

U.S.C. § 841(b) only when they represent distinct criminal

13
The indictment's section on "Overt Acts in Furtherance of the
Conspiracy" includes the following: "On or about March 30, 2005,
[Pabón-Mandrell] possessed a measurable amount of cocaine and
marihuana, in or around the area of a 'drug distribution point',
located in Borinquen Ward, Guayama, PR."

-57-
episodes," 373 F.3d 70, 74 (1st Cir. 2004)(emphasis added)(citation

omitted), and that the March 2005 incident was not a "distinct

criminal episode[]" from the charged offense in Count One.

Regardless, the district court did include the 2005 incident in

making its determination that the three strikes mandatory life term

applied to Pabón-Mandrell.

The same case Pabón-Mandrell cites settles this matter.

In De Jesús Mateo, we held that our circuit's precedent forecloses

the argument that prior convictions do not represent "distinct

criminal episodes" when they are part and parcel of a defendant's

participation in a drug trafficking conspiracy. 373 F.3d at 74

(holding that prior convictions for separate drug transactions that

were eleven months apart constituted separate criminal episodes

even though the conduct underlying both convictions was arguably

part of the same conspiracy). Our reasoning in De Jesús-Mateo

relied on an earlier ruling, in United States v. Martínez-Medina,

in which we quoted a Ninth Circuit opinion stating that

[a]n ongoing course of criminal conduct such
as narcotics trafficking may involve many such
criminal episodes, each a discrete occurrence.
The fact that all are related, part of a
series, or part of a continuous course of
criminal dealing, does not necessarily render
them a "single" criminal episode, particularly
where the episodes occur over time. To so
hold would insulate the very career criminals
the statute is designed to reach -- those
continuously engaged in criminal conduct.

-58-
279 F.3d 105, 123 (1st Cir. 2002)(quoting United States v. Maxey,

989 F.2d 303, 307 (9th Cir. 1993)(holding that the district court

properly imposed a life sentence under 21 U.S.C. § 841(b)(1)(A)

because the defendant's prior convictions, although part of one

drug trafficking conspiracy, stemmed from several transactions

occurring several months apart)). We also have previously held

that "[a] prior drug conviction constitutes a 'distinct criminal

episode' sufficient to trigger the enhancement so long as the

defendant continued to participate in drug activity after the

conviction became final." Lino, 493 F.3d at 43.

The 2005 incident, despite being part of the drug

conspiracy of which Pabón-Mandrell was charged in the instant case,

constitutes a "distinct criminal episode[]" because Pabón-Mandrell

continued to participate in drug activity after that conviction

became final. Rivera-Díaz and Brito-Pacheco testified at trial

that Pabón-Mandrell was the "runner" of heroin for Las Avispas Dos.

Irving Ofray-Vázquez ("Agent Ofray-Vázquez"), an FBI agent,

testified during Pabón-Mandrell's sentencing hearing that Pabón-

Mandrell participated in the drug conspiracy charged in the instant

case even after he was convicted for the 2005 incident and put on

probation in June 2006. Specifically, Agent Ofray-Vázquez

testified that, as late as December 2006, Pabón-Mandrell was still

a leader of Las Avispas Dos at the La Pluma drug point. As

evidence to support this conclusion, Agent Ofray-Vázquez cited the

-59-
statement of a cooperating witness who reported that, in almost all

cases, either Pabón-Mandrell or another man would pick up money

from or take drugs to be sold at La Pluma. Agent Ofray-Vázquez

also stated that further testimony provided to him by informants,

including Rivera-Díaz, indicated that Pabón-Mandrell had a "big

role" in Las Avispas Dos from its inception in 2003 until law

enforcement ceased its operations in 2007. Agent Ofray-Vázquez

also testified that, even after June 2006, while he was conducting

surveillance on the areas, Agent Ofray-Vázquez "always" saw Pabón-

Mandrell at both the La Pluma and Las Vías drug points.

The mere fact that Pabón-Mandrell's conduct during the

March 2005 incident was cited in the list of overt acts in the

instant case's indictment does not mean the government waived its

assertion that the associated conviction was a prior conviction for

purposes of qualifying Pabón-Mandrell as a third strike offender.

Although there is no indication that the conduct leading to the

prior convictions at issue in De Jesús-Mateo was listed in that

case's indictment, the distinction does not compel a different

outcome here. In De Jesús-Mateo, we explicitly noted the failure

of the defendant's attempt to distinguish his case from Martínez-

Medina on the basis that, in De Jesús-Mateo, "the government

presented evidence of marijuana trafficking . . . which was the

same conduct underlying De Jes[ú]s's prior marijuana conviction."

373 F.3d at 75 n.3. We observed that

-60-
 [t]he dispositive point here is not that
evidence of De Jes[ú]s distributing marijuana
was presented at his conspiracy trial but
rather that his prior cocaine conviction was a
separate criminal episode from his prior
marijuana conviction even though the conduct
underlying both convictions was arguably part
of the same conspiracy. As for any claim that
the conspiracy comprised the same episode as
either of the two prior convictions, the short
answer is that the conviction in this case was
for conspiring to distribute heroin and
cocaine, an episode continuing well beyond
either of the prior convictions for discrete
episodes of possession and distribution.

Id. Similarly, the dispositive point here is not that an

allegation of Pabón-Mandrell possessing, with the intent to

distribute, cocaine was included as an overt act in the indictment

in the instant case but rather that his prior cocaine conviction

was a separate criminal episode from his conspiracy conviction even

though the conduct underlying both convictions was arguably part of

the same conspiracy. Pabón-Mandrell's conviction in the instant

case was for conspiring to possess with intent to distribute and

actual distribution of narcotics, an episode continuing well beyond

his prior conviction for a discrete episode of possessing, with the

intent to distribute, cocaine.

Both Arzola-Martínez and Pabón-Mandrell also argue that

at least one of the prior convictions that the district court

counted in sentencing each of them to the three strikes life terms

should not, in fact, count because the law's "absurd result" of

punishing "cases of simple possession involving small amounts of

-61-
drugs" is "counter to Congressional intent" to punish "dangerous

narcotics traffickers." While acknowledging that the "literal

application of the language utilized in the statute may appear to

foreclose any further analysis concerning its proper application"

here, to support their contentions, these two Appellants

nonetheless cite the Supreme Court's decision in Green v. Bock

Laundry Mach. Co., 490 U.S. 504, 510-11 (1989), in which the Court

held that a statute's literal interpretation can be ignored if it

"can't mean what it says" (citation omitted). See also id., 490

U.S. at 527 (Scalia, J., concurring)(suggesting that the literal

interpretation of a statute can be ignored if it "produces an

absurd, and perhaps unconstitutional, result"). However, besides

punishing serious drug offenders, we have observed that an

additional purpose of such a sentencing enhancement is to punish

recidivism. See Lino, 493 F.3d at 43. Such recidivism is a

concern with both of these Appellants, given that their prior

convictions and the instant case all relate to drug offenses.

"Indeed, if the rule advocated by [Arzola-Martínez and Pabón-

Mandrell] were adopted, we would insulate the very career criminals

the [enhancement] is designed to reach -- those continuously

engaged in criminal conduct." Id. at 43-44 (citation and internal

quotation marks omitted) (alterations in the original). As such,

imposing the three strikes life term on Arzola-Martínez and Pabón-

-62-
Mandrell for these repeat offenses is neither absurd nor a

violation of Congressional intent.

In sum, we find that the district court did not err in

counting the aforementioned instances as "prior convictions" that

led the district court to impose the three strikes life term on the

felony drug offense repeat offenders Arzola-Martínez and Pabón-

Mandrell.

III. Conclusion

We conclude that there was sufficient evidence adduced at

trial for the jury to convict Arzola-Martínez, Muñiz-Massa, and

Rivera-Moreno. We further conclude that the ex parte conversations

that the district judge held with prospective jurors were not plain

error. Moreover, the district court did not err with respect to

the various sentencing claims made by Arzola-Martínez, Rivera-

Rodríguez, and Pabón-Mandrell. Accordingly, the judgment of the

district court is affirmed.

Affirmed.

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