United States Court of Appeals
For the First Circuit
No. 05-1428
UNITED STATES OF AMERICA,
Appellee,
v.
OMAR RODRÍGUEZ-RIVERA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Torruella, Circuit Judge,
Baldock*, Senior Circuit Judge, and
Howard, Circuit Judge
Jorge L. Armentos-Chervoni, for appellant.
Thomas F. Klumper, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Appellate Chief, were on brief for appellee.
January 10, 2007
* Of the Tenth Circuit, sitting by designation.
HOWARD, Circuit Judge. Omar Rodríguez-Rivera appeals his
conviction and sentence for his role in two robberies interfering
with interstate commerce in violation of 18 U.S.C. § 1951(a). We
affirm.
I.
Rodríguez was charged with participating in two separate
conspiracies to commit robbery. His indictment alleged that he and
two cohorts, Elin Lugo-Echevarria and Samuel Santos-Ortiz,
conspired to rob, first, a bar and check-cashing business in
Guayamo, Puerto Rico, and, second, a beer truck en route from San
Juan, in the spring and summer of 2001. To provide the necessary
context for Rodríguez’s claims, we briefly survey the evidence
adduced at trial.
In 2001, Rodríguez worked in Guayamo, at a bakery across
the street from a bar and check-cashing business owned and operated
by Juan Narbel Rivera-Vázquez. From the bakery, Rodríguez had
occasion to observe Narbel arrive at his business every Thursday
morning carrying a satchel of money. Rodríguez approached Lugo and
Santos, two of his long-time friends, about taking advantage of
this opportunity to rob Narbel. Rodríguez offered to provide a 9
mm pistol for use in the crime.
On the day of the robbery, Santos and Lugo drove together
to the neighborhood where the bakery and check-cashing business
were located. Santos was armed with the pistol Rodríguez had given
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him. Based on instructions from Rodríguez, Santos waited in the
vehicle until Narbel arrived. Santos then entered the business
and, in the course of wrestling the satchel away from Narbel, shot
him several times. Santos and Lugo fled the scene in their car.
Narbel died from his wounds.
Santos and Lugo met Rodríguez at his home later that day,
where Santos returned the pistol to Rodríguez. Santos also gave
Rodríguez between $2,000 and $2,500 from the approximately $10,000
in proceeds from the robbery. A few days later, Rodríguez asked
Santos and Lugo for additional money to buy the silence of one of
Rodríguez’s co-workers at the bakery, Raul Rodríguez-Torres, whom
Rodríguez had told of the plan to rob Narbel before it had been
carried out and with whom he had discussed the crime afterwards.
Santos and Lugo together gave Rodríguez $600 for this purpose, half
of which he paid to Rodríguez-Torres.
Santos and Lugo saw each other often in the months
following the robbery. On the morning of July 11, 2001, Santos
called Lugo and asked him to go out with him for the day. Santos
then arrived at Lugo’s house, driving a minivan with a 9 mm pistol
on one of the seats. Santos told Lugo that Rodríguez was the
source of the gun--the same one, in fact, used in robbing Narbel.
Santos also told Lugo that they were driving to San Juan that day
to steal a truckload of beer, which Santos planned to sell for
$30,000. Lugo dropped Santos off on the side of the expressway
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near Salinas, Puerto Rico, to wait for the beer truck to pass.
Santos flagged down the truck while Lugo continued ahead in the
minivan, exited the expressway, and parked at a roadside stand.
Lugo then followed the truck, now under Santos's control,
to a vacant lot off the expressway, where the vehicles were joined
by another minivan occupied by two men who had arranged to buy the
stolen beer, known to Lugo as "Ricky" and "Colon." The trailer of
beer was detached from the truck and left with Ricky and Colon,
while Lugo followed Santos, still driving the truck, to a spot on
the side of the road in Aguirre, Puerto Rico. There, Santos shot
and killed the truck driver, José Vázquez-Feliciano, and abandoned
the vehicle. Later that day, Santos and Lugo went to Salinas to
meet Ricky, who paid Santos $15,000 for the beer. Rodríguez
received $2,500 as his share of the money. He later gave
approximately $2,000 to Guillermo Luis Rigual Almodovar, a co-
worker Rodríguez had enlisted in an apparently unsuccessful attempt
to find a buyer for the beer, and with whom he had discussed his
involvement in the robbery of Narbel.
Santos and Lugo were indicted for their roles in the
robberies in 2001 and 2002, respectively. Rodríguez, however, was
not indicted until 2004. At that point, both Santos and Lugo had
already pleaded guilty and been sentenced, though Santos had
appealed his sentence and Lugo's case remained open pending his
cooperation in the government's prosecution of Rodríguez.
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Before trial, Rodríguez filed a motion seeking to compel,
inter alia, discovery of the Santos and Lugo case files. Rodríguez
asserted that this material was exculpatory because of the passage
of nearly three years between the indictments of his alleged co-
conspirators and his own. Though the motion was unopposed, the
district court denied it except insofar as it sought information
within the scope of Giglio v. United States, 405 U.S. 150 (1972).
The court had also previously ordered the disclosure of Giglio
material, together with a host of other discovery, as part of its
scheduling order in the case. Rodríguez sought reconsideration of
the order denying his discovery motion, which was denied.
At trial, Lugo served as the government's key witness to
Rodríguez's role in the robberies, although the jury also heard
testimony on that subject from both Rodríguez-Torres and Rigual.
Santos did not testify. The jury found Rodríguez guilty on two
counts of conspiring to commit robbery interfering with interstate
commerce in violation of 18 U.S.C. § 1951(a). He was acquitted on
charges of aiding and abetting those robberies and aiding and
abetting the use of a firearm to commit them. The jury also
completed special verdict forms, submitted in response to the
Supreme Court's decision in Blakely v. Washington, 542 U.S. 296
(2004), indicating their finding beyond a reasonable doubt that
both Narbel and Vázquez-Feliciano, who died in the robberies, had
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suffered permanent or life-threatening bodily injury--an
aggravating factor under the sentencing guidelines.
Prior to the submission of the case to the jury, the
government had requested jury interrogatories on a number of other
potential enhancements to Rodríguez's sentence under the then-
mandatory guidelines, including whether murders had occurred during
the course of the robberies. While the district court refused to
ask the jury about these factors because they had not been charged
in the indictment, it determined that "the occurrence of bodily
injury may reasonably be inferred" from the charges and therefore
permitted a special verdict form on that issue.
Before Rodríguez was sentenced, however, the Supreme Court
issued its decision in United States v. Booker, 543 U.S. 220
(2005), holding that the mandatory application of the sentencing
guidelines was unconstitutional. Taking account of the murders of
the robbery victims, the presentence report set Rodríguez's base
offense level at 43, using the guideline for first-degree murder,
rather than robbery. See U.S.S.G. § 2B3.1(c)(1) (2006) (cross-
referencing id. § 2A1.1(a)). While this calculation called for a
life sentence under the guidelines, Rodríguez faced a statutory
maximum of twenty years on each count under 18 U.S.C. § 1951(a).
Rodríguez objected on the theory that his sentence could
not be increased based on the murders of the robbery victims
because the jury had not made any findings in that regard. He
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argued for a sentence in accordance with the base offense level
under the guidelines, elevated only by the fact, as found by the
jury, that the victims had suffered serious or life-threatening
bodily injury. This calculation, adjusted for Rodriguez's
conviction on multiple counts in accordance with U.S.S.G. § 3D1.4
(2006), would have resulted in an offense level of 28, for a
guidelines range of 78-97 months.
The district court disagreed, reading Booker to authorize
a sentence within the twenty-year range prescribed by 18 U.S.C.
§ 1951(a), fashioned with due regard for the sentencing factors
enumerated in 18 U.S.C. § 3553(a). The court then sentenced
Rodríguez to the twenty-year statutory maximum on each count, to be
served consecutively, for a total of 480 months.
II.
Rodríguez makes three claims of error. First, he argues
that the district court wrongfully denied him discovery into the
government's files on his alleged co-conspirators. Second, he
asserts that the district court denied him a fair trial by unduly
interfering in the proceedings. Third, he challenges his sentence
as imposed in violation of the due process and ex post facto
clauses of the Constitution and, in any event, unreasonable. As
set forth below, we reject these contentions.
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A.
Rodríguez claims that the district court's refusal to
compel the disclosure of his co-conspirators' files deprived him of
his rights under Giglio and its progenitor, Brady v. Maryland, 373
U.S. 83 (1963). Brady requires the prosecution, upon request, to
produce material, exculpatory evidence, id. at 87, while Giglio
recognizes that this evidence often includes any understandings or
agreements as to future prosecution between the government and one
of its witnesses. 405 U.S. at 155. Brady does not, however,
establish any "'general constitutional right to discovery in a
criminal case . . . .'" United States v. Caro-Muniz, 406 F.3d 22,
29 (1st Cir. 2005) (quoting Weatherford v. Bursey, 429 U.S. 545,
559 (1977)). To establish a Brady violation based on the denial of
a discovery motion, a defendant must show prejudice, i.e., that he
was deprived of material, exculpatory evidence as a result. Id.;
see also United States v. Nelson-Rodríguez, 319 F.3d 12, 35 (1st
Cir. 2003).
Rodríguez has failed to make that showing here. He does
not identify what he hoped to find in his co-conspirators' files,
or how it would have helped his defense. He argues, as he did
below, that the passage of three years between the indictments of
Santos and Lugo and his own, on charges arising out of the same
robberies, suggests his innocence. But nothing within the co-
conspirators' files was necessary to develop this theory--the
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chronology of the prosecution was apparent from the dates of the
indictments themselves. Furthermore, Santos was not called as a
witness, and Lugo was extensively cross-examined on his failure to
tell the authorities about Rodríguez's participation in the
robberies until after receiving a lengthy sentence for his own role
in them. Counsel for Rodríguez was therefore able to argue to the
jury, as he did, that both of these facts served to weaken the
government's case. Accordingly, Rodríguez has not shown that
access to the co-conspirators' files would have meaningfully
assisted his defense at trial.1 See United States v. Dumas, 207
F.3d 11, 16 (1st Cir. 2000) ("Impeachment evidence, even that which
tends to further undermine the credibility of the key Government
witness whose credibility has already been shaken due to extensive
cross-examination, does not create a reasonable doubt that did not
otherwise exist where that evidence is cumulative or collateral.")
(internal quotation marks omitted).
Rodríguez further argues that the government failed to
provide Giglio material as to Rodríguez-Torres or Rigual, despite
the district court's two orders to that effect. In support of this
claim, he notes that Rodríguez-Torres and Rigual were never
prosecuted, even though each received money from one of the
1
Rodríguez also argues that the district court should have
undertaken an in camera review of the files. Simply suggesting
that materials in the government's possession may contain
exculpatory evidence, however, is generally insufficient to merit
in camera inspection. Caro-Muniz, 406 F.3d at 30.
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robberies. Assuming that these facts suggest an agreement or
understanding between the government and these witnesses,2 both
Rodríguez-Torres and Rigual were effectively cross-examined about
taking the money but not getting charged. As above, then, the
failure to provide Giglio material for these witnesses, if any
existed, did not prejudice Rodríguez.
B.
Rodríguez also claims that the district court failed to
conduct his trial in a fair and impartial manner. He asserts that
the trial judge reprimanded his counsel, repeatedly interrupted his
cross-examination, unfavorably commented on his objections to the
prosecutor's questions, and made a series of unpredictable and
adverse rulings on the propriety of various questions and evidence.
Rodríguez contrasts this rough treatment with the easy time the
government had in putting on its case, arguing that it benefitted
not only from a series of favorable rulings from the bench but also
from the court’s helpful questioning of prosecution witnesses.
Rodríguez argues that the trial judge thus manifested a hostility
toward him, and a corresponding affinity for the government, that
influenced the jury to find him guilty.
2
Courts are divided on whether a tacit agreement as to favorable
treatment between a witness and the government qualifies as Giglio
material. See Bell v. Bell, 460 F.3d 739, 751-56 (6th Cir. 2006)
(discussing divergent case law). In light of Rodríguez's failure
to show prejudice, we need not reach the issue.
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We have observed that “[t]rial judges are justifiably
accorded broad latitude to ensure proper courtroom behavior.”
United States v. Gomes, 177 F.3d 76, 79-80 (1st Cir. 1999) (citing
Liteky v. United States, 510 U.S. 540, 555-59 (1994)). This
latitude extends to the court’s questioning witnesses on its own
behalf, e.g., Logue v. Dore, 103 F.3d 1040, 1045 (1st Cir. 1997),
and rebuking counsel for inappropriate behavior, e.g., United
States v. Candelaria-Silva, 166 F.3d 19, 35 (1st Cir. 1999). But
“the judge’s participation must be balanced; he cannot become an
advocate or otherwise use his judicial powers to advantage or
disadvantage a party unfairly.” Logue, 103 F.3d at 1045.
Rodríguez’s brief recounts dozens of instances, culled
from the course of his nine-day trial, that in his view attest to
the judge’s bias. In our view, however, these instances reflect,
on the whole, legitimate “efforts to clarify testimony, expedite
the trial, and maintain courtroom decorum.” Logue, 103 F.3d at
1045. We must consider alleged examples of judicial bias “in light
of the entire transcript so as to guard against magnification on
appeal of instances which were of little importance in their
setting.” Candelaria-Silva, 166 F.3d at 35 (internal quotation
marks omitted). Rather than analyzing each of the numerous claimed
instances of judicial bias separately, then, we will address them
in summary fashion, explaining why we believe they do not amount to
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a due process violation, either individually or collectively. Id.
at 36; Logue, 103 F.3d at 1045.
At the outset, we consider Rodríguez’s claim that the
district judge’s favoritism came through in the high number of
times she interrupted when counsel for Rodríguez was examining a
witness as compared to when the prosecutor was. The government
takes issue with Rodríguez’s tabulation, arguing that it
experienced roughly as many interruptions as he did. Assuming that
a phenomenon as vaguely defined as “interruptions” can be
accurately counted, we do not consider this sort of comparison to
be any more reliable an indicator of a biased judge than the
relative number of penalties called against each side in a hockey
game indicates a biased referee. The record reveals that, when the
district court intervened sua sponte during live testimony, she did
so to clarify either a question from counsel or an answer from the
witness. As we have noted, this is generally an appropriate role
for the judge to play. Logue, 103 F.3d at 1045.
In a similar vein, Rodríguez identifies bias in a number
of instances when the judge interceded to restrict his attorney’s
cross-examination. By and large, however, the district court did
not rule certain topics out of bounds; she merely instructed
defense counsel to reformulate his inquiries so as to avoid
potentially confusing responses. A trial judge "retains wide
latitude to impose reasonable limits on cross-examination in order
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to avoid confusion . . . ." United States v. Mikutowicz, 365 F.3d
65, 72 (1st Cir. 2004) (internal quotation marks omitted). The
district court did not exceed its discretion in this regard.
Indeed, Rodríguez's trial called for particular vigilance from the
court, involving, as it did, two different robberies and a number
of different participants who had each been previously interviewed
by different authorities at different times. The district court
thus often interrupted both questions and answers to ask, for
example, which robbery was being described, whom among the various
men named during the trial was meant by “he,” or (as on several of
the occasions cited by Rodríguez) which of the witness’s prior
statements was at issue. We do not see that as evidence of
partiality.
Rodríguez also takes exception to a number of times when
the district court criticized his counsel for various aspects of
his performance. In assessing such a claim, we must “differentiate
between expressions of impatience, annoyance or ire, on the one
hand, and bias or partiality, on the other hand.” Candelaria-
Silva, 166 F.3d at 35 (internal quotation marks omitted). We
believe that the trial judge’s comments to Rodríguez’s attorney fit
squarely in the former category. The great majority were delivered
outside the presence of the jury, and “[o]n several occasions, this
Court has held that a trial judge's frustration displayed at
sidebar does not deprive a defendant of a fair trial.” Id.
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While, in a few instances, the judge took an arguably
harsh tone, we have found far sterner rebukes of counsel or
litigants insufficient to demonstrate judicial bias. See, e.g.,
Logue, 103 F.3d at 1045-46 (court called appellant’s lawyer “smart
little guy” and, after close of evidence, called appellant “an
absolute and incorrigible liar”); Deary v. City of Gloucester, 9
F.3d 191, 194-96 (1st Cir. 1993) (court referred to lawyer’s cross-
examination as “very devious”); United States v. Polito, 856 F.2d
414, 417-19 (1st Cir. 1988) (court warned counsel he was being
reported for violating Rules of Professional Conduct).
Furthermore, the court reserved its most pointed reprimands for
what, in an objective sense, was the most serious misconduct: two
occasions when defense counsel or his colleague was looking at the
jurors in what the judge perceived as an inappropriate manner. The
handling of those incidents strikes us as entirely defensible, if
not outright necessary, and does not fairly suggest prejudice
against Rodríguez. See Gomes, 177 F.3d at 80 (noting that
justifiable rebukes by judge offer less support to claim of bias).
The district court also showed exasperation with defense
counsel in front of the jury from time to time. Although comments
made in the presence of the jury generally have a greater potential
for unfairness, “appellate courts cannot expect that a trial judge,
under siege, will function as a bloodless automaton.” Logue, 103
F.3d at 1045. Generally, the district judge corrected Rodríguez’s
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attorney before the jury only when he disregarded instructions the
court had previously given. Even then, the aspersions were cast
in a passing and indirect fashion. Such “warranted and relatively
mild” criticism does not indicate judicial partiality. United
States v. Balthazard, 360 F.3d 309, 319 (1st Cir. 2004); see also
Gomes, 177 F.3d at 80.
The remainder of Rodríguez’s judicial bias claim is
founded on a series of adverse rulings by the district court on
evidentiary and other matters. We have reviewed those rulings and
conclude that they, like the other conduct he questions, were well
within the court’s discretion. See Candelaria-Silva, 166 F.3d at
36. Furthermore, the jury was specifically instructed to "draw no
inference against the side to whom admonition of the Court may have
been addressed" due to an attorney, "out of zeal for his cause
do[ing] something which [was] not in keeping with the rules of
evidence or procedure." We have recognized that such a charge
usually mitigates any perceived partiality from the bench. See
id.; Logue, 103 F.3d at 1045. Considered in its entirety, the
district court's handling of the trial did not unfairly
disadvantage Rodríguez.
C.
Rodríguez further asserts that his sentence does not
comport with the due process or ex post facto clauses of the
Constitution. Rodríguez committed the offenses of conviction in
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2001, before the Supreme Court's decision in Booker, but was
sentenced in 2005, after Booker. We have held that Booker's change
to the federal sentencing regime, from mandatory to advisory
guidelines, cannot support an ex post facto claim. United States
v. Lata, 415 F.3d 107, 110 (1st Cir. 2005).
Rodríguez's due process argument is likewise unavailing.
In Lata, we left open the possibility of such a claim where "a
sentence is imposed for a pre-Booker crime that is higher than any
that might realistically have been imagined at the time of the
crime or based on factors previously discouraged, prohibited, or
not recognized under the guidelines." Id. at 112. That did not
happen here. To the contrary, Rodriguez was sentenced in
accordance with the guidelines in effect at the time of his crimes,
which dictated a base offense level of 43 for robbery if the victim
was killed under circumstances constituting first-degree murder.
U.S.S.G. §§ § 2A1.1(a), 2B3.1(c)(1) (2000).
That the district court initially ruled the murders out
of bounds for sentencing purposes based on its understanding of
Blakely, but later reversed course based on its understanding of
Booker, does not offend due process. We have squarely rejected the
notion that a guidelines-driven sentence for a pre-Booker offense
creates a constitutional "fair warning problem." United States v.
Perez-Ruiz, 421 F.3d 11, 15 (1st Cir. 2005), cert. denied, 126 S.
Ct. 1092 (2006). As we reasoned, "[a]t the time of [Rodríguez's]
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crime[s]--indeed, until the morning that Booker was announced by
the Supreme Court--[Rodríguez] faced a foreseeable risk that any
crime he committed would result in a guideline sentence (within the
statutory maximum) based on judge-made fact-finding. That is
exactly what he got in this case." Id.
Although Rodríguez also calls his sentence unreasonable,
he offers nothing to support this claim other than a challenge to
the sufficiency of the district court's explanation. At the
conclusion of the sentencing hearing, the court announced that it
had "considered all the applicable adjustments under the now
Advisory Federal Sentencing Guidelines, as well as the other
sentencing factors set forth in 18 [U.S.C. §] 3533(a)," and went on
to enumerate those factors before imposing consecutive sentences of
240 months on each count of conviction. While the judge did not
separately discuss her application of each of the statutory
sentencing factors, we have recognized that "a court's reasoning
can often be inferred by comparing what was argued by the parties
or contained in the pre-sentence report with what the judge did."
United States v. Jimenez-Beltre, 440 F.3d 514, 519 (1st Cir. 2006)
(en banc).
Both the pre-sentence report and the government's
presentation at the sentencing hearing focused on the murders
committed during the robberies and their effect on the victims'
families. Rodríguez, for his part, attempted to cast himself as an
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honest and hardworking man for whom the robberies were
uncharacteristic behavior.3 In response, the government pointed
out that Rodríguez had joined in the conspiracy to rob the beer
truck with the same person, Santos, who had shot and killed the
victim during the first robbery, so that in essence Rodríguez had
knowingly put a gun in the hand of a demonstrated murderer. We can
infer from the course of the sentencing proceedings, then, that the
district court considered factors such as the nature and
circumstances of the offenses, the need to provide just punishment
in light of their seriousness, and the need to protect the public
from further crimes of the defendant to weigh more heavily than
factors such as the defendant's history and characteristics in the
sentencing calculus. In any event, Rodríguez makes no effort to
explain to us why he deserved a lesser sentence.
III.
For the foregoing reasons, we affirm Rodríguez's
conviction and sentence.
3
Rodríguez also disputed the connection between the murders and his
agreement to participate in the robberies. He has not, however,
resurrected that point on appeal.
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