United States Court of Appeals
For the First Circuit
No. 02-1274
UNITED STATES OF AMERICA,
Appellee,
v.
PERCIO REYNOSO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Selya, Circuit Judge,
Cyr, Senior Circuit Judge,
and Lynch, Circuit Judge.
Joshua L. Gordon for appellant.
Thomas M. Gannon, Attorney, United States Department of
Justice, with whom Margaret E. Curran, United States Attorney, and
Kenneth P. Madden, Assistant United States Attorney, were on brief
for appellee.
July 17, 2003
CYR, Senior Circuit Judge. Percio Reynoso appeals from
a judgment of conviction and sentence imposed under 21 U.S.C. §§
841(a)(1) & 846. The evidence introduced at trial established that
Reynoso and Benjamin Valera conspired to distribute cocaine at
Valera’s store in Providence, Rhode Island, and were arrested there
on March 29, 2001, immediately following a drug sale to a
confidential informant for the Drug Enforcement Administration
(DEA). In due course Reynoso was indicted for conspiring to
distribute, and distributing, a controlled substance. See 21
U.S.C. §§ 841(a)(1), 846. Following trial, the jury returned
guilty verdicts against Reynoso on each count, and the district
court imposed a 109-month term of imprisonment. Reynoso now
appeals. We affirm.
A. The Speedy Trial Act
Reynoso first contends that he was brought to trial more
than seventy days after his indictment, in violation of the Speedy
Trial Act (STA), 18 U.S.C. §§ 3161(c)(1), 3161(h), 3162(a)(2).
Conclusions of law under the STA are reviewed de novo; findings of
fact for clear error only. United States v. Scott, 270 F.3d 30, 55
(1st Cir. 2001), cert. denied, 535 U.S. 1007 (2002). We discern no
error.
Although Reynoso asserts that seventy-one days were non-
excludable under the STA, the instant appeal must fail if any one
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of the seventy-one days is determined excludable under the STA. We
now turn to that analysis.
On August 1, 2001, the STA clock was tolled upon the
empanelment of the trial jury. See United States v. Rodriguez, 63
F.3d 1159, 1164 (1st Cir. 1995). Prior to the time the jury was
sworn, however, Valera entered into an agreement to cooperate with
the government, and the government submitted a superseding
indictment which added a conspiracy count against Reynoso.
Thereafter, the district court dismissed the initial jury and
scheduled a second jury empanelment for September 11, 2001.1 Of
course, the period from August 1 to August 15 — the date of the
superseding indictment — is excludable, in that the August 1 jury
empanelment tolled the STA and there is no record evidence
whatsoever that the government sought the initial jury empanelment
as a pretext for delaying the trial. See id.2
1
Even assuming that the August delay was nonexcludable,
Reynoso has advanced no argument on appeal as to why at least one
day of the eighteen-day delay in empaneling the second jury, which
occurred after the unprecedented terrorist attacks of September 11,
2001, would not have been fairly excludable under the STA’s “ends
of justice” exclusion. See 18 U.S.C. § 3161(h)(8)(A); United
States v. Barnes, 251 F.3d 251, 256 (1st Cir. 2001) (reviewing §
3161(h)(8)(A) determinations for abuse of discretion only).
2
Absent any evidence of governmental misconduct, we likewise
reject the claim that the trial delay violated Reynoso's due
process rights. See, e.g., United States v. Stokes, 124 F.3d 39,
47 (1st Cir. 1997).
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B. The Motion to Suppress
Reynoso next contends that his signed confession should
have been suppressed because the DEA agents (i) failed to accord
him Miranda warnings, either in Spanish or in English, (ii)
threatened him with deportation, (iii) declined his request to
consult counsel, and (iv) recruited Valera to cajole him into
confessing. Findings of fact made in relation to a motion to
suppress are reviewed only for clear error. United States v.
Rosario-Diaz, 202 F.3d 54, 68 (1st Cir. 2000). We discern no
error.
The district court was presented with conflicting
testimony regarding each of these occurrences. Moreover, as the
primary arbiter of witness credibility, the district court acted
well within its prerogative in discrediting the version of the
relevant events posited by Reynoso. See United States v. Laine,
270 F.3d 71, 75 (1st Cir. 2001); see also United States v. Abou-
Saada, 785 F.2d 1, 10 (1st Cir. 1986) (discerning no clear error in
finding that defendant had understood Miranda warnings, even though
defendant later was afforded a translator at trial).
C. The Expert Testimony
At the time of the arrest, the DEA agents seized 110
grams of cocaine from Reynoso's automobile, which was parked near
Valera’s store. During trial, Reynoso maintained that so “small”
an amount of cocaine plainly was intended exclusively for personal
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use, rather than distribution. Reynoso now challenges the
admission into evidence of the expert testimony of DEA Agent
Kathleen Kelleher — that the quantity of cocaine seized from
Reynoso’s car was too large to have been exclusively for his
personal use — given that Agent Kelleher concededly had no personal
experience with cocaine users, as distinguished from cocaine
distributors. We discern no abuse of discretion. United States v.
Diaz, 300 F.3d 66, 74 (1st Cir. 2002).
Due to her DEA experience, Agent Kelleher was competent
to testify to the relative raw-weight distinctions in the drug
quantities typically possessed by users as distinguished from
dealers. See, e.g., United States v. Valle, 72 F.3d 210, 214-15
(1st Cir. 1995); United States v. Muldrow, 19 F.3d 1332, 1338 (10th
Cir. 1994). Furthermore, as Reynoso was charged with distributing
500 or more grams of cocaine, and the government's evidence
connected him to the kilogram of cocaine seized at Valera’s store,
infra, the conviction would stand even absent evidence that Reynoso
intended to distribute the 110 grams. Consequently, any error in
allowing Kelleher’s testimony into evidence would have been
harmless. See Fed. R. Evid. 103(a).
D. The Sufficiency of the Evidence
Next, Reynoso contends that the government adduced no
creditable evidence that he supplied the kilogram of cocaine found
in Valera’s store. We review de novo all the evidence, as well as
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all credibility determinations, in the light most favorable to the
verdict to determine whether a rational jury could have found the
defendant guilty beyond a reasonable doubt. United States v.
Morillo, 158 F.3d 18, 22 (1st Cir. 1998).
Altogether aside from Reynoso’s confession, Valera
explicitly testified that Reynoso supplied the kilogram of cocaine
seized at the store. Plainly, the mere fact that Valera cooperated
with the government, in return for a more lenient sentence, did not
render his testimony unreliable, per se. Moreover, the jury was
fully apprised of the plea agreement Valera entered into with the
government. See United States v. Hernandez, 109 F.3d 13, 15 (1st
Cir. 1997). Although Reynoso points out that the DEA task force
did not see him deliver cocaine, notwithstanding its six-month
surveillance of the Valera store, Valera’s testimony was fully
creditable absent further corroboration, see id., and Reynoso
plainly — and prudently — may have made these deliveries
surreptitiously.
Similarly, Reynoso contends that there was insufficient
evidence that he intended to distribute the 110 grams of cocaine
seized from his car. The jury heard the expert testimony given by
Agent Kelleher, supra, as well as evidence that Reynoso supplied
Valera with other cocaine plainly intended for distribution. In
contrast, Reynoso presented the implausible defense that he needed
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to have as much as 110 grams on hand because his supplier was away
on a six-week vacation.
E. The Obstruction of Justice Enhancement
Reynoso maintains that the district court erred in
imposing a two-level “obstruction of justice” enhancement under
U.S.S.G. § 3C1.1, given that the government failed to establish
that he perjured himself in testifying that he received no Miranda
warnings and that he had intended the 110 grams of cocaine
exclusively for his own use, whereas that testimony could have
resulted simply from poor memory or the shock and confusion
incident to his arrest. Questions of law concerning
interpretations of the Sentencing Guidelines are reviewed de novo,
and the factual conclusions of the sentencing court, which must be
supported by a preponderance of the evidence, are reviewed for
clear error. United States v. Damon, 127 F.3d 139, 141 (1st Cir.
1997).
Although false testimony caused by mistake, confusion or
poor memory is not perjurious, see United States v. D’Andrea, 107
F.3d 949, 958 (1st Cir. 1997), Miranda warnings were read to
Reynoso on two separate occasions following his arrest, both in
English and in Spanish. Similarly, at best the contention that
Reynoso intended the 110 grams of cocaine exclusively for personal
use was implausible, directly contradicted by Agent Kelleher, and
inconsistent with Reynoso's pretrial statement that he had never
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used cocaine. Moreover, the district court is the primary arbiter
of witness credibility under U.S.S.G. § 3C1.1, see United States v.
McKeeve, 131 F.3d 1, 15 (1st Cir. 1997), and we discern no clear
error in its determination.
F. The Denial of the Motion to Depart Downward
Lastly, Reynoso maintains that the district court erred
in denying a downward departure notwithstanding the fact that, as
a deportable alien, he would not have the benefit of various
ameliorative programs, such as a halfway house and a work release
program, which would be available to comparable non-alien
prisoners; hence, his conditions of imprisonment would be rendered
more severe. Absent any evidence that the district court
erroneously believed that it lacked the discretionary power to
depart downward in these alleged factual circumstances, see United
States v. Farouil, 124 F.3d 838, 847 (7th Cir. 1997) (noting that
departure might be warranted in cases where “[defendant’s] status
as a deportable alien has resulted in unusual or exceptional
hardship in his conditions of confinement”) (emphasis added), we
have no jurisdiction to review its decision not to depart. See
United States v. Lujan, 324 F.3d 27, 31 (1st Cir. 2003); see also
United States v. Sachdev, 279 F.3d 25, 28 (1st Cir. 2002)
(“Defendant bears the burden of proof by the preponderance of the
evidence of showing eligibility for a Guidelines departure.”).
Affirmed.
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