United States Court of Appeals
For the First Circuit
No. 02-1653
UNITED STATES OF AMERICA,
Appellee,
v.
RUBÉN REYES-ECHEVARRÍA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Torruella, Circuit Judge,
Stapleton,* Senior Circuit Judge,
and Howard, Circuit Judge.
José C. Romo-Matienzo, for appellant.
Thomas F. Klumper, Assistant United States Attorney, with whom
H.S. García, United States Attorney, and Sonia I. Torres-Pabón,
Assistant United States Attorney, Chief, Criminal Division, were
on brief, for appellee.
September 22, 2003
*
Of the Third Circuit, sitting by designation.
TORRUELLA, Circuit Judge. A jury convicted appellant
Rubén Reyes-Echevarría ("Reyes") of intentionally conspiring to
possess with the intent to distribute more than five kilograms of
cocaine and one kilogram of heroin. The district court sentenced
him to life imprisonment and a five year term of supervised
release. Reyes appeals, claiming that the district court erred in
failing to dismiss the indictment, in admitting as evidence a death
certificate without sanitation as to the cause of death, and in
enhancing his sentence to life without submitting the enhancement
factor to the jury.
I. BACKGROUND
A. Facts
We recite the facts in the light most favorable to the
verdict. United States v. Díaz, 300 F.3d 66, 69 (1st Cir. 2002).
According to trial testimony, Reyes operated a drug trafficking
organization from 1994 through 1997. Reyes had an agreement with
José Alberto Martínez-Torres ("Martínez") to sell cocaine and
heroin at various drug points in Southern Puerto Rico, including
Santa Isabel, Coamo, El Pastillo, and Salinas. One of Reyes's
employees, Carlos Rubert-Collazo ("Rubert"), controlled the
organization's daily operations.
The government presented testimony that Reyes was
motivated to murder Martínez in the summer of 1996 out of fear that
Martínez might murder him or that Martínez's nephews might take
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over Reyes's drug points if Martínez -- who was infected with the
HIV virus -- suddenly died. Reyes and Rubert met with Daniel
Sánchez-Ortiz (a/k/a "Danny El Gordo") ("Sánchez") and José Medina-
Cruz (a/k/a "José El Mellao") ("Medina") approximately three times
to plan Martínez's murder. In exchange for killing Martínez, Reyes
and Rubert agreed to give Medina two-eighths kilogram of heroin and
to pay the four individuals a total of $20,000.
On June 11, 1996, Sánchez and Medina, along with two
recruits Roberto "Blackie" Báez-Segarra ("Báez") and José "Hershey"
Rivera-Segarra ("Rivera"), drove to Martínez's Santa Isabel home.
Medina and Rivera changed into black uniforms resembling the Puerto
Rico Police Department's Saturation Unit uniform and entered
Martínez's house through a door in the garage, claiming they were
police officers. After entering, Medina and Rivera fired handguns
at Martínez 23 times, striking him twelve times. Martínez died in
a hospital at approximately 1:30 a.m. on June 12, 1996.
On the afternoon of Martínez's death, Rubert contacted
Sánchez on Reyes' behalf; he requested a meeting between Reyes,
Rubert, Sánchez, and Medina. At the meeting, the appellant gave
Medina the promised heroin and gave $10,000 cash to Medina and
Sánchez. Reyes promised to give them the $10,000 balance later.
After Martínez's death, Reyes assumed control of
Martínez's heroin drug points, and in 1997, he gave Martínez's
cocaine drug points to Rubert. Reyes continued to operate the
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heroin drug points until his 1999 arrest, selling between 1000 and
2000 bags of heroin per week at each drug point.
B. Indictment and Trial
A federal grand jury returned a two-count indictment
against Reyes and three co-defendants (Rubert, Báez, and Rivera)
for the drug conspiracy and the murder of Martínez. The government
charged Reyes only on Count One, the drug conspiracy. After a
twelve-day trial, the petit jury found him guilty of conspiring to
"knowingly and intentionally possess with the intent to distribute"
more than five kilograms and more than one kilogram of heroin in
violation of 21 U.S.C. § 841(a)(1). The district court sentenced
Reyes to life in prison and to five years supervised release.1 He
now appeals.
II. ANALYSIS
A. Motion to Dismiss
Reyes asserts that the district court erred in denying
his motion to dismiss. Prior to trial, Reyes moved to dismiss the
indictment; he contended that José Galiani-Cruz ("Galiani")
testified falsely before the grand jury when stating that Reyes had
admitted to killing Martínez and that the prosecutor should have
known the testimony was false. Consequently, Reyes argued, the
indictment was the product of perjured testimony.
1
The court also imposed a $100 special assessment not at issue on
appeal.
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Reyes's argument relies primarily on Galiani's
testimonial reference to an inaudible audio recording. Galiani
stated he had made an audio-tape of Reyes admitting to Galiani his
involvement in Martínez's killing. Although the defense repeatedly
requested the tape in discovery, the government never produced an
audible copy. This led Reyes to conclude that either Galiani lied
about the tape or the prosecution improperly elicited testimony
about the tape because it should have known the tape was inaudible.
In response to Reyes's motion to dismiss, the prosecution stated
that the tape had audibility problems and was sent to be enhanced
after the indictment's return. Although the tape recording
remained difficult to understand even after the enhancement, Reyes
was permitted to listen to and review the tape.
We review the district court's refusal to dismiss the
indictment for abuse of discretion. United States v. Maceo, 873
F.2d 1, 3 (1st Cir. 1989). We review any challenges based on
prosecutorial misconduct before the grand jury under a harmless-
error standard. Bank of Nova Scotia v. United States, 487 U.S.
250, 254 (1988). Under the harmless-error standard, we will
reverse "only 'if it is established that the violation
substantially influenced the grand jury's decision to indict,' or
if there is 'grave doubt' that the decision to indict was free from
the substantial influence of such violations." Id. at 256 (quoting
United States v. Mechanik, 475 U.S. 66, 78 (1986)); United States
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v. Flores-Rivera, 56 F.3d 319, 328 (1st Cir. 1995) (stating that
"[e]rrors before the grand jury warrant dismissal of an indictment
only if such errors prejudiced the defendants" (quotation marks and
citation omitted)).
All but the most serious errors before the grand jury are
rendered harmless by a conviction at trial. Mechanik, 475 U.S. at
73. "Only a defect so fundamental that it causes the grand jury no
longer to be a grand jury, or the indictment no longer to be an
indictment, gives rise to the constitutional right not to be
tried." Midland Asphalt Corp. v. United States, 489 U.S. 794, 802
(1989).
We adjudge the alleged error before the grand jury
harmless. Here, a petit jury convicted Reyes after a 12-day trial.
"The petit jury's verdict of guilty beyond a reasonable doubt
demonstrates a fortiori that there was probable cause to charge the
defendant[] with the offenses for which [he was] convicted."
United States v. López-López, 282 F.3d 1, 9 (1st Cir. 2002)
(quoting Mechanik, 475 U.S. at 67).
Reyes has failed to establish Galiani's testimony to the
grand jury was actually false or that the government was aware it
was false. The fact that the government failed to produce an
audible recording was not proof that Galiani committed perjury
before the grand jury and that the prosecutor was aware that it was
perjured testimony. The tape was produced, but remained inaudible
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in part after enhancement. Without more, we cannot find that there
was "prosecutorial misconduct that biased the grand jury in
performing its fact-finding function." See Maceo, 873 F.2d at 3.
Further, the district court's alleged failure to dismiss
following Galiani's grand jury testimony did not prejudice Reyes
because the grand jury heard other substantial evidence of Reyes's
involvement in drug trafficking and Martínez's murder. See Maceo,
873 F.2d at 4 (affirming the district court's decision not to
dismiss an indictment without deciding whether the grand jury
witness's challenged statement constituted perjury because there
was other competent and material evidence to sustain the charge
issued). Sánchez and Rubert testified to Reyes's involvement in
drug trafficking. Sergeant Reinaldo Rosado testified as to
Rubert's admission that Reyes was involved in drug trafficking and
the death of Martínez, and he testified as to Reyes's admission
that he was involved in drug trafficking. The prosecutor also
presented an exculpatory statement made by Reyes to Sergeant Rosado
in which Reyes said he was not involved in Martínez's murder.
Reyes contends that the testimony of the other government
witnesses was insufficient to support the indictment because the
testimony was inconsistent regarding the details of Reyes's
participation in Martínez's death. For example, Reyes contends
that Sánchez's testimony contradicted that of Rubert and Rivera
regarding the number of meetings and the way the payments were to
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be made for the murder, and that Rivera and Rubert contradicted
testimony they had given previously concerning details of the
murder contract.
Reyes's alleged errors are rendered harmless because
[a]n indictment returned by a legally
constituted and unbiased grand jury, if valid
on its face, is enough to call for trial of
the charge on its merits. A court should not
inquire into the sufficiency of the evidence
before the indicting grand jury, because the
grand jury proceeding is merely a preliminary
phase and all constitutional protections are
afforded at trial.
United States v. Flores-Rivera, 56 F.3d 319, 328 (1st Cir. 1995).
As we have explained before, leaving indictments open to
evidentiary challenges "would [mean] that before trial on the
merits a defendant could always insist on a kind of preliminary
trial to determine the competency and adequacy of the evidence
before the grand jury." Maceo, 873 F.2d at 3. Thus, the district
court did not abuse its discretion in refusing to dismiss the
indictment.
B. Death Certificate
Next, Reyes argues the district court erred by admitting
as evidence a death certificate without the requested sanitation as
to cause of death. He argues that without a coroner's testimony or
report supporting the certified cause of death, the government
failed to prove the cause.
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We review challenges to the admissibility of evidence
under the Sixth Amendment's Confrontation Clause for harmless
error. Manocchio v. Moran, 919 F.2d 770, 783-84 (1st Cir. 1990).
The relevant inquiry under this standard is whether the error
affected the defendant's substantial rights; that is, whether it
prejudiced the outcome of the district court proceeding. Fed. R.
Crim. P. 52(a); Ramírez-Burgos v. United States, 313 F.3d 23, 29
(1st Cir. 2002).
Reyes has asserted nothing to lead us to conclude that
any error in the presentation of the death certificate caused him
prejudice by affecting the outcome of the district court
proceedings. In Manocchio, we faced a closer -- but not close --
call where the defendant argued that the decedent's injuries were
not the result of the beating he sustained, but due to drug
ingestion. Manocchio, 919 F.2d at 783. We found that "[d]efendant
could refute the examiner's opinion as to cause of death by
presenting the opinions of his own experts." Id. Thus, we held
that the introduction into evidence of an autopsy report for the
purpose of proving the cause of death, without the personal
presence of the medical examiner, did not violate the Confrontation
Clause. Id.
The task before us is made simple by the fact that Reyes
does not contend on appeal that he would have presented an
alternative theory of death had a coroner testified or that such
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testimony would have helped his case. Our review of the record
does not reveal that the cause of death was ever in dispute, and
Reyes does not argue that Martínez died from a cause other than
gunshot wounds. The government presented undisputed testimony that
Martínez was struck with twelve bullets and died at the hospital
several hours later. Reyes presents us with no theory supporting
his assertion that a coroner's testimony would have added anything
to the jury's determination. Consequently, any alleged error in
the introduction of the unsanitized death certificate "was, at
worst, harmless error." Id. at 784.
C. Sentence Guidelines
Finally, Reyes contends that the district court violated
his due process rights when it applied the United States Sentencing
Guidelines' "murder cross-reference" to enhance his sentence to
life without submitting the enhancement factor to the jury for
proof beyond a reasonable doubt. See U.S. Sentencing Guidelines
Manual § 2D1.1(d). Without a jury finding of accountability for
Martínez's murder, the court erred in using the murder to calculate
his sentence because taking into account the murder results in a
higher mandatory sentence in violation of Apprendi v. New Jersey,
530 U.S. 466 (2000).2
2
As part of his argument, Reyes contends that the district court
erred when it refused to give an instruction requesting a specific
finding after a guilty verdict to determine whether Reyes was
culpable for Martínez's death so that the jury could deliberate
whether the defendant had participated in the murder beyond a
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We review the sentencing court's application of the
guidelines de novo and review the factual findings underlying that
application for clear error. United States v. Peterson, 233 F.3d
101, 111 (1st Cir. 2000); United States v. Padró Burgos, 239 F.3d
72, 76 (1st Cir. 2000). In calculating Reyes's base offense level,
the sentencing court applied the murder "cross reference" because
Martínez was killed "under circumstances that would constitute
murder under 18 U.S.C. § 1111." The "murder cross-reference"
resulted in Reyes's having a base offense level of 43, a level
mandating a life sentence.3
This Circuit's recent decisions have eliminated Reyes's
Apprendi prayer for relief. In a similar case, a defendant
convicted of participating in a drug conspiracy was sentenced to
life imprisonment after the sentencing court held him accountable
for the deaths of four people, even though the defendant did not
participate directly in the actual killing of the victims and was
not charged with murder in the district court. United States v.
Newton, 326 F.3d 253, 265 (1st Cir. 2003). The sentence was
reasonable doubt. We can quickly dispose of this challenge because
Reyes was only charged with a drug conspiracy; there was no reason
for the trial judge to instruct the jury on a crime for which Reyes
was not charged.
3
Under the sentencing guidelines, Reyes's drug offense resulted
in a term of imprisonment no less than ten years or more than life,
but based on the application of the murder cross-reference, the
minimum was increased from a minimum of ten years to a minimum of
life.
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affirmed because "[a] sentencing court may . . . consider relevant
conduct of the defendant for purposes of making Guidelines
determinations, even if he has not been charged with -- and indeed,
even if he has been acquitted of -- that conduct, so long as the
conduct can be proved by a preponderance of the evidence." Id.
(quoting United States v. Lombard, 72 F.3d 170 (1st Cir. 1995)).
A review of the record shows that there was substantial evidence
before the judge, on which he could find by a preponderance of the
evidence that Reyes was responsible for the death of Martínez. The
testimony of Sergeant Rosado, Sánchez, and Rubert provided a more
than adequate basis for the district court's attribution of
Martínez's murder to Reyes.
Ultimately, the statutory maximum sentence for the
offense with which Reyes was actually charged is life imprisonment.
Because Reyes’ sentence does not exceed that statutory maximum,
Apprendi is not applicable, regardless of whether a sentencing
factor increases the mandatory minimum sentence under either the
statute or the Sentencing Guidelines. See United States v.
Robinson, 241 F.3d 115, 121-22 (1st Cir. 2001); United States v.
Caba, 241 F.3d 98, 101 (1st Cir. 2001); Sepúlveda v. United States,
330 F.3d 55, 60 (1st Cir. 2003) (citing United States v. Robinson
as "rejecting the argument that when facts found by the judge
trigger or increase a mandatory minimum sentence, an Apprendi
violation occurs"); United States v. Eirby, 262 F.3d 31, 39 (1st
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Cir. 2001) (stating that "the Apprendi doctrine offers no advantage
to a defendant who is sentenced to a term less than the otherwise
applicable statutory maximum").
III. CONCLUSION
For the reasons stated above, we affirm.
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