United States Court of Appeals
For the First Circuit
No. 04-1038
UNITED STATES OF AMERICA,
Appellee,
v.
LUIS DANIEL AYALA-PIZARRO
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. D. Brock Hornby,* U.S. District Judge]
Before
Torruella, Lynch, and Lipez, Circuit Judges.
Maria Soledad Ramirez-Becerra, with whom Maria Soledad
Ramirez-Becerra Law Office was on brief, for appellant.
Thomas F. Klumper, Assistant United States Attorney, with whom
H.S. Garcia, United States Attorney, and Nelson Pérez-Sosa,
Assistant United States Attorney, Senior Appellate Attorney, were
on brief, for appellee.
May 12, 2005
*
Of the District of Maine, sitting by designation.
LYNCH, Circuit Judge. Luis Daniel Ayala-Pizarro was
convicted, after a four-day jury trial, of possession with intent
to distribute 153 decks of heroin and of knowingly possessing a
firearm in furtherance of a drug trafficking crime. 21 U.S.C.
§ 841(a)(1); 18 U.S.C. § 924(c)(1)(A)(i). He was acquitted of two
additional gun charges involving possession of semiautomatic
assault weapons. He was sentenced to twenty-four months'
imprisonment on the first charge and sixty months on the second, to
be served consecutively for a total of eighty-four months'
imprisonment. He attacks both his conviction and his sentence.
We affirm Ayala's conviction. We also affirm his
sentence, save for a limited remand, agreed to by the government,
for the purposes of conforming the drug testing and drug treatment
program portions of Ayala's supervised release conditions to the
dictates of United States v. Melendez-Santana, 353 F.3d 93 (1st
Cir. 2003).
Challenge to Conviction
Ayala argues that the district court erred in permitting
an arresting officer to cross the line from being a fact witness to
being an expert witness when the officer testified about drug
distribution points and how they operate as well as how heroin is
normally packaged for distribution at these points. Ayala objected
at trial that the officer's testimony was expert testimony under
Fed. R. Evid. 702, and that no prior notice of such expert
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testimony had been given, as required by Fed. R. Crim. P.
16(a)(1)(G). We describe the pertinent facts.
Officer Mulero, one of the arresting officers, testified
that he arrested Ayala at 2 p.m. on a Wednesday afternoon on
Melilla Street in Loiza, Puerto Rico, near a house known to be a
drug point. Officer Mulero and the other arresting officer,
Officer Pietri, were in the area looking for two suspects in the
wounding of another man. The officers observed Ayala and another
man, Luis Vazquez Alvarez, at the right-hand corner of the house.
Ayala and Vazquez did not see the officers, but the officers saw
both men and that they were armed with firearms. Indeed, Ayala was
trying to cock his gun, a Cobrai Model M11, nine millimeter caliber
semiautomatic assault weapon, at the time. The officers then
detained and arrested the two men. A search of Ayala turned up 153
aluminum-foil covered decks of heroin from his left pocket; his
companion had $250. The officers arrested three other men standing
nearby; each had a revolver. Experts determined that the heroin
weighed 10.94 grams. An expert also testified that Ayala's gun was
functioning and capable of firing in semiautomatic mode, and that
its serial number was obliterated.
At trial, when the government asked Officer Mulero about
his experience with drug points, as a lead-in to Mulero's testimony
that Ayala was arrested at a known drug point, defense counsel
objected, arguing that this was expert testimony and that because
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the government had not given notice of expert testimony from Mulero
under Fed. R. Crim. P. 16(a)(1)(G), the witness could not so
testify. At a subsequent bench conference, the government made a
proffer that the witness would also testify that the particular
packaging of the drugs seized showed they were packaged for
distribution. Defense counsel countered that the testimony about
the nature of the packaging was even more clearly expert testimony.
The court ruled that the testimony that Melilla Street was a known
drug point was permissible lay testimony. As to the packaging
issue, the court ruled it needed to hear foundational evidence and
allowed the testimony subject to a motion to strike.
Officer Mulero then testified as to how drug points work
generally, stating:
Basically one individual loads the drug while
the other one collects the money, and then you
have [men] who are armed and just waiting
around in the event other gangs might come by
and take action, and then you have others as
vigilantes to see if the cops come.
Mulero testified about his experience with Melilla Street as a drug
point. He also testified that he had made previous seizures of
heroin at drug points, and that the heroin was typically packed in
aluminum decks. Officer Mulero was then asked about the packaging
of the drugs he seized from the defendant, and replied that the
heroin was packaged "[i]n a shape or manner of a deck." Ayala did
not later move to strike.
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On appeal, Ayala argues that he is entitled to a new
trial because two parts of Mulero's testimony, first about how drug
points operate and, second, about how heroin is packaged, could
only be given by an expert and the government failed to give notice
that Officer Mulero would testify as an expert.
As to the testimony concerning how drug points operate,
because Ayala timely objected, review is for abuse of discretion.
United States v. Balsam, 203 F.3d 72, 84 (1st Cir. 2000). As to
the testimony concerning packaging, because the objection was
denied conditionally, subject to a later motion to strike, and
Ayala made no later motion to strike, review is for plain error.
See Wilson v. Williams, 182 F.3d 562, 566-67 (7th Cir. 1999).
The government contends that neither of the two types of
testimony (on the nature of drug points and on heroin packaging for
distribution) was expert testimony under Fed. R. Evid. 702. We
agree with the government that neither type of testimony was expert
testimony at all, but was admissible as lay witness testimony under
Fed. R. Evid. 701, even after the amendments to the two rules in
December 2000. The pre-amendment version of Rule 701 required lay
opinion testimony to be "rationally based on the perception of the
witness" and "helpful to a clear understanding of the witness'
testimony or the determination of a fact in issue." In 2000, Rule
701 was amended to include the additional requirement that
testimony admitted under the rule "not [be] based on scientific,
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technical, or other specialized knowledge within the scope of Rule
702." As the advisory committee's notes explain, this amendment
was intended "to eliminate the risk that the reliability
requirements set forth in Rule 702 will be evaded through the
simple expedient of proffering an expert in lay witness clothing."
Fed. R. Evid. 701, advisory committee's note on 2000 amendment.
Instead, such expert testimony is subject to the pre-trial
disclosure requirements of Fed. R. Civ. P. 26 and Fed. R. Crim. P.
16 and the additional reliability requirements imposed by Fed. R.
Evid. 702. Id.; see also Fed. R. Evid. 702, advisory committee's
note on 2000 amendment (explaining intent to "provid[e] some
general standards that the trial court must use to assess the
reliability and helpfulness of proffered expert testimony" in the
wake of Kumho Tire Co. v. Carmichael, 526 U.S. 1379 (1999), and
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993)).
We have noted that "[t]he line between expert testimony
under Fed. R. Evid. 702 . . . and lay opinion testimony under Fed.
R. Evid. 701 . . . is not easy to draw." United States v. Colon-
Osorio, 360 F.3d 48, 52-53 (1st Cir. 2004). Indeed, the same
witness –- for example, a law enforcement officer -- may be
qualified to "provide both lay and expert testimony in a single
case." See Fed. R. Evid. 701, advisory committee's note (citing
United States v. Figeuroa-Lopez, 125 F.3d 1241, 1246 (9th Cir.
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1997)). In this case, however, the testimony did not cross the
line to become expert testimony.
As to the testimony about how drug points operate,
Officer Mulero stated that he had investigated, patrolled, or made
arrests at drug points on more than 100 occasions. His testimony
stated what occurred at those drug points. This testimony was
based on the requisite personal knowledge under Fed. R. Evid. 602
and also met the requirements of Fed. R. Evid. 701, because it was
based on "particularized knowledge that the witness [had] by virtue
of his . . . position" as a police officer assigned to patrol the
neighborhood.1 Fed. R. Evid. 701, advisory committee's note.
Before the 2000 amendments, we had repeatedly noted that
"the modern trend favors the admission of [lay] opinion testimony
provided it is well founded on personal knowledge and susceptible
to cross-examination." See United States v. Vega-Figueroa, 234
F.3d 744, 755 (1st Cir. 2000) (quoting United States v. Paiva, 892
F.2d 148, 157 (1st Cir. 1989)). While the 2000 amendments subject
testimony falling within the scope of Rule 702 to heightened
reliability requirements and rules governing pre-trial disclosure,
Officer Mulero's testimony does not trigger these additional
safeguards. It required no special expertise for Officer Mulero to
conclude, based on his observations, that places which sell drugs
1
Defendant relies on the opinion of the Second Circuit in
United States v. Cruz, 363 F.3d 187 (2d Cir. 2004), which is
inapposite on its facts.
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are often protected by people with weapons. The defense could
hardly be surprised by Mulero's testimony that Ayala was arrested
at a drug point, nor was Ayala disabled from testing the
reliability of Mulero's perceptions through cross-examination.
As to the packaging, the officer simply testified to his
experience on prior drug arrests that the heroin seized at drug
points was "basically packed in . . . aluminum decks," and that in
this case the drugs were packaged "[i]n a shape or manner of a
deck." The agent's testimony as to what he saw is not expert
testimony. See United States v. Santana, 342 F.3d 60, 68 (1st Cir.
2003). The jury was left to draw its own conclusions as to the
contents and purpose of the decks, undoubtedly assisted by the fact
that the 153 decks seized in this case, when tested, in fact
contained heroin.
Challenge to Sentence
The government has conceded that under the rule of United
States v. Melendez-Santana, 353 F.3d 93 (1st Cir. 2003), the case
should be remanded for adjustment of the portion of Ayala's
sentence imposing conditions of supervised release, in order to
cure an impermissible delegation of authority to the probation
officer over drug testing and drug treatment. We have no reason
not to accept this concession.
Ayala tries to ride the concession further, arguing that
the term of imprisonment in the sentence is also now open. That is
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contrary to Melendez-Santana itself and a long line of cases
remanding for limited adjustment of sentences. See Melendez-
Santana, 353 F.3d at 108 (remanding for limited adjustment solely
of supervised released conditions). A remand to correct a
delegation error as to conditions of supervised release does not
open up any other aspect of a sentence for resentencing.
Ayala's brief also raised a different sort of sentencing
argument. Ayala on appeal for the first time raised an argument
that under Apprendi v. New Jersey, 530 U.S. 466 (2000), the issue
of exact drug quantity should have been found by the jury. This
argument has since been transformed into a Booker argument, due to
the Supreme Court's recent decision on the Sentencing Guidelines in
United States v. Booker, 125 S. Ct. 738 (2005). This issue was not
preserved at the trial court. On its own terms the unpreserved
Apprendi argument would have failed pre-Booker -- there would have
been no plain error. At sentencing defendant did not, and indeed
had no basis to, contest the government's evidence that the heroin
weighed 10.94 grams. See United States v. Cotton, 535 U.S. 625,
633-34 (2002) (no plain error under Apprendi when evidence of drug
quantity was overwhelming and uncontested at trial).
After the Supreme Court's recent decision in Booker, the
question for plain error review is whether defendant has shown a
reasonable probability the sentencing judge would, in a non-
mandatory Guidelines system, have imposed a more lenient sentence.
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See United States v. Antonakopoulos, 399 F.3d 68, 78-79 (1st Cir.
2005). Ayala cannot meet that standard. The sixty-month portion
of the sentence for the firearm possession was mandated by statute,
18 U.S.C. § 924(c)(1)(A)(i), (D)(ii), and the twenty-four months
for drug distribution was centered in the middle of the twenty-one
to twenty-seven month range. We see no reasonable likelihood of a
more lenient sentence should the case be remanded. Antonakopoulos,
399 F.3d at 79.
The conviction is affirmed; the sentence is affirmed save
for that limited portion of the conditions of supervised release
relating to drug testing and treatment, which is remanded for
correction in accordance with this opinion.
So ordered.
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