United States Court of Appeals
For the First Circuit
No. 99-1061
UNITED STATES,
Appellee,
v.
RAFAEL ARIES SANTOS BATISTA,
AKA RAFAEL MORALES, LENYN RAMOS, PAPO,
Defendant, Appellant,
No. 99-1062
UNITED STATES,
Appellee,
v.
JUAN GONZALEZ,
AKA JOSE POLANCO, JOSE RIVERA,
Defendant, Appellant,
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
Before
Selya, Boudin, and Stahl,
Circuit Judges.
Irwin Kwiat for appellant Santos-Batista.
William J. Murphy, by appointment of the Court, for
appellant Gonzalez.
Donald C. Lockhart, Assistant United States Attorney, with
whom Richard W. Rose, Assistant United States Attorney, and
Margaret E. Curran, United States Attorney, were on brief for
appellee.
January 8, 2001
STAHL, Circuit Judge. Juan Gonzalez and Rafael Aries
Santos Batista were convicted by a jury of (1) conspiracy to
distribute cocaine in violation of 21 U.S.C. § 846, and (2)
possession of cocaine with the intent to distribute it in
violation of 21 U.S.C. § 841(a)(1). Gonzalez and Batista were
sentenced to 70 months and 210 months, respectively, as Batista
was linked to more transactions than was Gonzalez. Both appeal
their convictions on the basis of the district court's denial of
their untimely motions to suppress evidence, and Batista appeals
the consideration of certain transactions in determining his
sentence pursuant to the United States Sentencing Guidelines
(U.S.S.G.).
I. BACKGROUND
On January 9, 1998, Detectives David Neill and David
Palmer stopped Gonzalez at a gas station for questioning, having
followed him there from a multi-unit house under surveillance
for suspected drug-related activity. His handling of what
appeared to them to be a suspicious package had led them to
follow him as he drove away from the premises. At the gas
station, the officers found his demeanor suspicious. He seemed
unduly anxious to return to the apartment, commenting that he
was expected back there within a certain time-frame. In
response to this behavior, the officers asked him to sign forms
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acknowledging his Miranda rights and consenting to a search of
the apartment they had been surveilling. After Gonzalez
complied with this request, he also provided the officers with
keys.1
When the officers entered the apartment, they found
appellant Batista sitting on a cushion in shorts, skimming over
several loose sheets of notebook paper, with pen in hand. These
papers appeared to list accounts receivable for cocaine sales,
as part of a larger drug ledger, and contained Batista's
nickname, Papo, in several entries. With the aid of a drug-
sniffing dog, the officers discovered a hidden compartment in a
closet, which contained six heat-sealed bags, containing a total
of 400 grams of cocaine, several of which were marked with
weights that matched those written on the drug ledger pages
Batista had been reviewing. The police also found, in the
compartment and elsewhere in the apartment, various supplies for
the processing, weighing, and packaging of cocaine, as well as
a loaded handgun, $2,300 in cash, and additional drug ledgers.
Because they found no food or clothing in the apartment, the
officers concluded that they had found a "stash house."
1
Gonzalez also signed a consent-to-search form for his own
residence, and provided the officers with those keys as well.
The search there yielded very little evidence, and the details
are not important here.
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Gonzalez and Batista were charged with conspiracy to
distribute cocaine and possession of cocaine with the intent to
distribute it, and their cases were combined for trial. 2
Although the defendants had several concerns regarding the
validity of the search, as well as the voluntariness of their
statements,3 they did not file a motion to suppress before trial
as required under FED. R. CRIM. P. 12(b)(3). From our reading of
the record, this apparently was a tactical decision, and their
intention was to challenge the search evidence and their
implicating statements as they were presented.
The government was made aware of this intention just
as the jury was about to enter for trial, and it immediately
brought the issue to the district court's attention. Although
the district court excused the jury so that it could hold a
suppression hearing, it made it quite clear "that neither of
these questions was timely raised, nor was there anything
approaching a showing of good cause for being excused from the
ordinary waiver requirements of Rule 12." Indeed, it appears
that the only reason the judge went forward with the hearing was
2 Though, to be clear, they were not facing identical
factual charges. Batista was the conspiracy's ringleader, while
Gonzalez was merely a courier.
3 Because we do not address the merits of the defendants'
suppression claims, see infra, we have found it unnecessary to
go into any detail regarding the facts relevant to those claims.
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to create a complete record in case this Court were to reverse
its waiver holding. After reaching the merits, the district
court denied each defendant's motion to suppress, and the trial
went forward with all of the evidence less one minor redacted
statement.
At the trial's conclusion, the jury convicted each
defendant on both counts. Gonzalez was sentenced to 70 months
imprisonment and Batista to 210 months. In calculating the
proper sentencing range under the guidelines, the court included
the amounts listed on the drug ledger pages 4 when imposing
Batista's sentence, but did not apply these amounts to Gonzalez.
II. ANALYSIS
We need address only two issues in these appeals: (1)
whether the defendants had waived their right to file motions to
suppress evidence, and (2) whether it was proper to include the
drug amounts from the ledger pages when calculating Batista's
sentence. Because of our holding on the first issue, see infra,
it is unnecessary for us to reach the merits of the suppression
motions themselves.
A. Suppression Arguments Waived
4 The judge considered only those pages that Batista
actually had been perusing and marking when caught red-handed,
and not the rest of the ledgers found in the apartment.
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In federal criminal proceedings, motions to suppress
evidence must be raised prior to trial. FED. R. CRIM. P. 12
(b)(3). "The rationale usually given for removing suppression
questions from the trial itself is that 'interrupt[ing] the
course of the trial for such auxiliary inquiries impedes the
momentum of the main proceeding and breaks the continuity of the
jury's attention.'" United States v. Gomez, 770 F.2d 251, 253
(1st Cir. 1985) (quoting Nardone v. United States, 308 U.S. 338,
342 (1939)).
Failure to raise suppression arguments before trial
"shall constitute waiver thereof." FED. R. CRIM. P. 12(f). This
is mandatory language, and the rule applies broadly. See, e.g.,
United States v. Torres, 162 F.3d 6, 11 (1st Cir. 1998) (holding
that not only is there waiver when the defendant fails
altogether to file a motion to suppress before trial, but even
when he has done so but did not include a particular ground and
wishes to add it later), cert. denied, 526 U.S. 1057 (1999);
United States v. Mendoza-Acevedo, 950 F.2d 1, 3 (1st Cir. 1991)
(same).
A single narrow exception to the waiver rule provides
that "the court for cause shown may grant relief from the
waiver." FED. R. CRIM. P. 12(f). This relief is rarely granted,
and only where there is a showing of cause and prejudice. 1
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CHARLES A. WRIGHT, FEDERAL PRACTICE AND PROCEDURE § 193, at 339 & n.24
(3d ed. 1999). We have held in the past, and reiterate here,
that a mere tactical decision to delay efforts to suppress
evidence until it is adduced at trial does not come close to
meeting this burden. United States v. Nunez, 19 F.3d 719, 722
(1st Cir. 1994) (distinguishing tactical decisions, or even
changing one's mind later, from the paradigmatic ground for
relief where the government surprises the defense with
previously unknown evidence).
Moreover, because of the discretionary language in the
relief clause of Rule 12(f), we review the district court's
decision to deny relief only for abuse of discretion. Gomez,
770 F.2d at 253. Where a district court has elected not to
grant relief from a 12(f) waiver, our analysis is not affected
by its diligence--by holding a hearing on the merits--in
developing the record. United States v. Bashorun, 225 F.3d 9,
14 (1st Cir. 2000) ("[W]e enforce Rule 12(f) waivers even though
the district court ultimately did address the waived issue on
the merits . . ."). Thus, despite the well-developed record
here, because the motion to suppress was not properly raised
below, with no good cause shown, we will not consider it on
appeal. United States v. Marshall, 109 F.3d 94, 98-99 (1st Cir.
1997).
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This Court's interpretation of the portions of Rule 12
that are relevant here has already been well established, and we
need not add more. Applying our existing precedent to the
adduced facts, the answer is undeniable. Neither defendant
filed a motion to suppress prior to trial. They were not
surprised by unexpected evidence produced by the government.
Indeed, they had planned in advance to attempt to suppress the
evidence as it arose during the trial. Neither defendant has
provided any reason for his failure to file a timely motion
other than confusion over tactical decisions. The district
court found, and we agree, that there was no good cause for this
failure. Because we hold that these defendants waived any
suppression arguments they may have had, we do not address the
merits of those claims.5
B. Sentencing
Our affirmance on the first matter resolves the
Gonzalez appeal, but still leaves the question of whether the
district court properly followed the sentencing guidelines when
determining Batista's sentence. The guideline sentencing range
is determined according to a numeric figure known as the base
5 Although we affirm the district court's ruling on the
ground that the appellants' suppression arguments have been
waived, the outcome would likely have been the same in any
event. Based upon our cursory review of the appellants'
suppression arguments, they appear to be without merit.
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offense level. In drug-related convictions, this figure is
determined in large part by quantity. Batista challenges the
district court's determination of the amount attributable to
him, arguing that only the quantity of drugs for which he was
convicted should apply. If the district court had agreed, and
only counted that quantity, then his adjusted offense level
(after adding other factors not challenged here) would have been
26(II), which correlates to a sentence range of 70-87 months.
However, because the district court included the amounts from
the drug ledger pages Batista was reviewing when the police
arrived, it determined an adjusted offense level of 34(II),
which correlates to a sentence range of 168-210 months. Batista
was thus sentenced to 210 months of incarceration.
In determining the base offense level, "[t]he drug
quantity properly attributable to a defendant is not limited to
the drugs involved in the offense of conviction." United States
v. Huddleston, 194 F.3d 214, 223 (1st Cir. 1999). The
Sentencing Guidelines, as applied to drug cases, require the
sentencing judge to determine quantity by including all amounts
"that were part of the same course of conduct or common scheme
or plan as the offense of conviction," whether or not the
defendant has been charged with those transactions. U.S.S.G. §
1B1.3(a)(2); see also United States v. Young, 78 F.3d 758, 763
-11-
(1st Cir. 1996); United States v. Wood, 924 F.2d 399, 403 (1st
Cir. 1991); United States v. Blanco, 888 F.2d 907, 909-911 (1st
Cir. 1989) (providing a thorough discussion of this requirement
and why it was codified). "For two or more offenses to
constitute part of a common scheme or plan, they must be
substantially connected to each other by at least one common
factor, such as common victims, common accomplices, common
purpose, or similar modus operandi." U.S.S.G. § 1B1.3, cmt.
n.9; see also Young, 78 F.3d at 763.
Section 1B1.3(a)(2) has its limits, however, and "[n]ot
every drug transaction undertaken by every drug trafficker is
necessarily linked in a meaningful sense." United States v.
Sklar, 920 F.2d 107, 111 (1st Cir. 1990). It is necessary for
the sentencing judge to find a sufficient link between the acts
charged and those included for sentencing purposes. United
States v. Duarte, 950 F.2d 1255, 1264 (7th Cir. 1991) (vacating
a sentence where the judge had included prior transactions in
the quantity, but had not "explicitly found that the
transactions recorded in the drug notes were part of the 'same
course of conduct or common scheme or plan' as the [charged]
conspiracy"); Sklar, 920 F.2d at 111 ("Isolated acts cannot be
conjoined and drug quantities aggregated for sentencing purposes
without a rational basis."). If the judge is unable to make
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this finding, "[o]ffenses of the same kind, but not encompassed
in the same course of conduct or plan, are excluded." United
States v. White, 888 F.2d 490, 500 (7th Cir. 1989).
Before uncharged conduct may be used in the sentencing
calculus, the burden is on the government to demonstrate a
sufficient nexus between that conduct and the offense of
conviction. Young, 78 F.3d at 763; Sklar, 920 F.2d at 110.
This burden, however, is met by a mere preponderance of the
evidence. Huddleston, 194 F.3d at 224; Young, 78 F.3d at 763;
Sklar, 920 F.2d at 110. Further, "[t]he rules of trial evidence
do not apply; in weighing the facts the sentencing court may
evaluate virtually any dependable information." Sklar, 920 F.2d
at 110 (quoting U.S.S.G. § 6A1.3 as allowing a sentencing judge
to consider any information that has "sufficient indicia of
reliability to support its probable accuracy").
Although we review the legal meaning and scope of the
guidelines de novo, we will not upset the sentencing court's
fact-based application of the guidelines unless it is clearly
erroneous. United States v. Mitchell, 85 F.3d 800, 813 (1st
Cir. 1996). In drug cases specifically, we review the
sentencing court's finding that uncharged drugs were "part of
the same course of conduct or common scheme or plan as the
offense of conviction" only for clear error. Young, 78 F.3d at
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763; Wood, 924 F.2d at 403. The same standard applies to the
judge's resulting quantity determination, and "we uphold such an
approximation as long as it represents a reasoned estimate of
quantity." United States v. Webster, 54 F.3d 1, 5 (1st Cir.
1995); see also Huddleston, 194 F.3d at 223-24.
Here, the district court's decision to treat the drug
transactions described in the ledger pages as "a common scheme
or plan" is unassailable. When the police entered the
apartment, Batista was sitting on a cushion, the four ledger
pages directly in front of him, pen in hand. Although there
were other ledgers found in the apartment, the government did
not attempt to include the amounts listed in them. By means of
cross-reference, it was possible to determine that the
transactions on the pages in question all had occurred in the
immediately preceding months prior to the arrest. In United
States v. Tabares, a strikingly similar case, we upheld a
district court's decision to include amounts, listed in a spiral
notebook, corresponding to sales from the preceding few months.
951 F.2d 405, 410 (1st Cir. 1991). Indeed, we have even
commented that sentencing determinations could be easier for the
judges to make, if only all drug dealers would keep such
complete records. Sklar, 920 F.2d at 111 (granting sentencing
judges significant leeway in estimating drug amounts because
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"[i]t is the rare narcotics trafficker who authors a formal
business plan or keeps meticulously detailed inventory
records").
Our only remaining concern is whether the district
judge did in fact find that the transactions reflected in the
ledgers "were part of the same course of conduct or common
scheme or plan," as required by the guidelines. This concern
stems from the fact that the judge did not, in his finding,
specifically use this language. Indeed, the judge's finding
that the ledger amounts should be included appears to focus on
the issue of whether Batista was responsible for the
transactions they reflect. As we have noted above, however, a
defendant must not only be responsible for any uncharged acts to
be considered in his sentencing, but those acts also must be
linked to the offense of conviction.
Although the judge did not specifically use the
guideline language, a close reading of the sentencing transcript
indicates that the issue was adequately addressed, and that the
district court did in fact make the necessary finding of a nexus
in determining the amount relevant to the sentencing calculus.
Indeed, the government focused on the "same course of conduct"
requirement in its oral argument at sentencing. However,
because Batista defended himself by arguing that he was not
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responsible for the ledger amounts,6 it was this argument to
which the judge responded when finding that the ledger amounts
did apply in sentencing Batista. Specifically, the district
court found that the information in the ledger pages counted
because the defendant was responsible for the transactions shown
therein, and was "a participant in this conspiracy during the
period of time reflected in the drug ledger . . . ." The
totality of the record indicates that, although the district
court could have used more precise language, the ledger amounts
were applied in determining Batista's sentence because the
transactions described "were part of the same course of conduct
or common scheme or plan as the offense of conviction."
Moreover, this conclusion is bolstered by the judge's
use of the word "conspiracy" in dealing with the transactions
reflected in the ledger. We have used this term interchangeably
with the phrase "common scheme or plan" in at least two
sentencing cases. See Tabares, 951 F.2d at 410 ("The legal
question, then, is simply whether the court could find that the
drugs referred to in the notebook were part of the scheme or
6
This is, of course, a valid focus for the defense, as the
government must show both that the defendant was responsible for
the amounts and that the amounts are connected to the crime of
conviction. Thus, although it would be inappropriate for the
prosecution to argue the responsibility factor exclusively
(which it did not do here), it was acceptable for the defense to
do so.
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plan or conspiracy of which the jury convicted the defendants.
That is to say, was the district court's finding that these
amounts were part of the conspiracy 'clearly erroneous'?");
Wood, 924 F.2d at 404 ("Sentence must be based on the [crimes]
that were part of one 'common scheme or plan' (such as a single
conspiracy) or a single 'course of conduct' (the unilateral
equivalent to the conspiracy).") (quoting White, 888 F.2d at
500).
III. CONCLUSION
For the foregoing reasons, we hold that (1) both
defendants waived their suppression arguments by not raising
them prior to trial, and (2) the district court did not err by
including the amounts from the drug ledger in the calculation of
Batista's sentence.
Affirmed.
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