United States Court of Appeals
For the First Circuit
No. 06-1824
UNITED STATES OF AMERICA,
Appellee,
v.
WILLIAM TEJEDA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Lynch, Circuit Judges.
David J. Apfel, with whom Jennifer W. Fischesser, William J.
Trach, and Goodwin Procter LLP were on brief, for appellant.
Susan M. Poswistilo, Assistant United States Attorney, with
whom Michael J. Sullivan, United States Attorney, was on brief, for
appellee.
April 3, 2007
LYNCH, Circuit Judge. William Tejeda was convicted after
a twelve-day jury trial of conspiracy to possess with intent to
distribute cocaine base in the amount of 50 grams or more. Tejeda
was a New York supplier of drugs for a Cape Cod drug ring. This
criminal appeal attacks both Tejeda's conviction and the sentence
imposed. The attack on the conviction is based largely on an
incident in the courtroom in which a spectator made a throat-
slitting gesture.
Four of Tejeda's co-conspirators pled guilty, and two,
Amanda Eldridge and Desiree Alves, testified against him. Tejeda
and a co-conspirator, Carmen Figueroa, went to trial; she
testified, he did not. Both were convicted. Tejeda was sentenced
to twenty years' imprisonment, five years of supervised release,
and a special assessment of $100.
As to his conviction, Tejeda does not attack the
sufficiency of the evidence. The evidence against him was
extremely strong, a point discussed later. He does argue that the
trial court committed two errors that deprived him of a fair trial
and require his conviction be set aside. The first claim of error
is that the court should have granted a mistrial when an older man
sitting in the gallery of the courtroom on the first day of trial
(and later possibly connected to defendant by the evidence) made a
throat-slitting gesture. That gesture was seen by two jurors and
discussed by them with other jurors. The second trial error
-2-
alleged was that the court erred in not severing Tejeda's trial
from co-defendant Figueroa's or bifurcating the trial so as to
isolate the case against him.
Tejeda also attacks his sentence on the grounds that the
district court erroneously relied on the Guidelines applicable to
crack cocaine offenses and that the sentence was unreasonable.
Acknowledging the able advocacy on both sides, we affirm
the conviction and sentence.
I.
The facts in evidence at the trial fairly establish the
following.
From January 2003 through March 2004, Tejeda supplied
crack cocaine to a drug distribution ring operating in Cape Cod,
Massachusetts. Tejeda was based in New York; his address,
ironically, was 1234 Boston Road, in the Bronx. The Cape Cod ring
was headed by Manuel Mendes, a co-defendant, who operated the ring
while imprisoned at the Plymouth County House of Correction. That
imprisonment limited Mendes in his mobility and in his command
operations, but it did not stop him. Mendes operated the drug ring
by giving instructions to co-defendant Figueroa, and sometimes to
co-defendant Alves, both of whom he was permitted to telephone.
Figueroa, in turn, contacted Tejeda and the other conspirators.
On Mendes' instructions, testifying co-conspirator Amanda
Eldridge drove to New York in January 2003, along with Carmen
-3-
Figueroa and Desiree Alves, to pick up crack from Tejeda. Eldridge
already knew Tejeda from prior drug transactions. She identified
Tejeda in court and had done so in an earlier photo array.
Eldridge testified that in New York she met with Tejeda alone in a
red van, picked up the drugs, and returned to Cape Cod. Eldridge's
testimony was corroborated by Alves, who testified that these drug
trips to New York took place about every two weeks.
Eldridge testified that, under Mendes' direction, she
made the trip to New York to pick up drugs from Tejeda every week
or so for a four-month period. Eldridge then drove back to Cape
Cod and gave the drugs to either Alves or Figueroa. Each time,
Tejeda gave Eldridge disk-shaped packages containing crack cocaine.
Eldridge also identified Tejeda's voice in a call recorded by the
government. The recording captured Tejeda and Figueroa arranging
a drug transaction for February 17, 2004 in New York.
The February 17, 2004 transaction went off as planned, as
was established by the testimony of Alves and two drug enforcement
officers who witnessed the event. Co-defendant Christopher Custer
was the courier this time. Alves did not go on the trip, but she
did give Custer the money to purchase the drugs the night before,
and she received the drugs at her home in Yarmouth from Custer when
he returned from his successful trip to New York.
The DEA had established surveillance over Tejeda's home
in the Bronx and observed Custer's arrival and actions on February
-4-
17. Tejeda left his home and entered the red van. A short while
later, Custer arrived, parked behind the van, and entered the van.
Photographs of Tejeda at the scene of the February 17 deal were
admitted into evidence at trial. Within approximately five
minutes, Custer got back into his car and left. He was tracked by
police as he drove back to Cape Cod and was seen entering Alves'
home with a black bag and emerging without it.
The police made arrests immediately after observing
another drug deal, this one on March 16, 2004. Custer, after again
obtaining money on Cape Cod to pay for the crack, went to New York.
Agents saw Tejeda leave the Boston Road address in the Bronx.
Tejeda then got in a car, and police tracked the car to Manhattan.
In Manhattan, an agent observed Custer on the same street as the
car carrying Tejeda. A short time later, after losing sight of
Custer, the agent saw Tejeda get out of the front passenger seat of
the car, and Custer get out of the back passenger seat and into the
front passenger seat of the car. The police thereafter stopped the
car; in it were two disk-like objects, which later tested positive
for cocaine base. That evening Tejeda was arrested.
The government's case rested primarily on this evidence,
and not on the testimony of the non-pleading co-defendant,
Figueroa.
-5-
II. Trial Error Claims
A. The Throat-Slitting Gesture and Fair Trial Rights
1. Facts And Procedural History
On the morning of the third day of trial, Friday, May 6,
2005, the government's witness was Lt. Balcom. During questioning,
Lt. Balcom indicated that on one occasion he had observed some of
the individuals in the courtroom in the red van. At the
prosecutor's request, Lt. Balcom pointed out these people in the
courtroom.
During the morning break, a juror reported privately to
the court that she and another juror had seen one of the
individuals identified by Lt. Balcom make a throat-slitting gesture
on the second day of trial, Wednesday, May 4. After the break and
outside of the presence of the jury, the court inquired and was
told by defense counsel that the man in question was Tejeda's
grandfather. The jury was never informed of this fact.
The court reported to counsel, outside the presence of
the jury, that a juror had stated that she had observed Tejeda's
grandfather making a throat-slitting gesture. The court then
ordered the gesturer and his wife to leave the courthouse and
barred them from the courthouse and the surrounding vicinity. At
least some members of the jury were later informed of the court's
order. On the record, the court described the man barred from the
courtroom as an "obviously frail appearing, old man."
-6-
Tejeda and Figueroa both moved for mistrial. When the
court discussed holding voir dire of the two jurors who reportedly
had seen the gesture, Tejeda's counsel expressed concern that the
proposed voir dire would only heighten the issue for the jury.
Before starting the trial again that Friday, the court
said to the jurors:
A matter has been conveyed to . . . me and I
have taken care of it completely. Put it out
of your mind. It has nothing to do with this
case. Have in mind, while the report is fully
appropriate, indeed we want such a report, do
not discuss the case among yourselves, the
case now, in the jury room.
Tejeda did not object to the instruction, and the trial continued
for the day. Later, several of the jurors, on query, said that the
jury had complied with this instruction. Assuming that to be true,
any discussion amongst the jurors occurred before the court dealt
with the report of the gesture.
On Sunday, May 8, Tejeda submitted a written mistrial
motion. On Monday, May 9, the court denied the motion but told the
parties it would grant their request to voir dire the juror who had
reported the gesture, Juror 11.
The court then individually questioned Juror 11. She
said that she was concerned about the gesture but did not report it
on the day she saw it. It was only after she heard the testimony
of Lt. Balcom identifying the spectator as having been at the red
van that she started to feel uncomfortable about what she had seen
-7-
the spectator do two days earlier. After hearing Lt. Balcom's
testimony on Friday morning, she reported the gesture to several of
the other jurors, some of whom told her she should disclose it to
the court, and so she did. The court had earlier instructed the
jurors not to discuss the case.
When asked whether she had linked the individual making
the gesture to any particular party in the case, Juror 11 answered
that she didn't know whether the older gentleman and the lady who
had been sitting with him had anything to do with a particular
person or side. The juror stated that all she knew was that Lt.
Balcom had testified to seeing one of them in the red van. While
she recognized the public nature of the courtroom setting, she was
concerned that people in the courtroom could know the names of the
jurors. The court asked whether she could put the incident out of
her mind when evaluating the case and be fair to all parties. She
answered affirmatively, and the court, observing her, found her to
be forthcoming. Tejeda again moved for mistrial.
The court then questioned Juror 6, who also had seen the
gesture. Juror 6 described the gesture as odd and a strange thing
to do in the middle of a court proceeding but did not think there
was anything to it. She said that it was unclear to her toward
whom the gesture was directed. Juror 6, like Juror 11, answered in
the affirmative as to her ability to be fair and impartial. The
court then denied the motion for mistrial.
-8-
At the request of Tejeda's counsel, on the fifth day of
trial, Tuesday, May 10, 2005, the court conducted a voir dire of
the remaining jurors. None of the other jurors had seen the
incident; all but one said that they had heard of it from Jurors 11
and/or 6. The jurors reported that they did not discuss the
incident other than on the Friday morning before it was reported.
Each juror was asked whether he or she could be fair and
impartial, and every one responded in the affirmative. While
several of the jurors indicated that they thought the gesture was
inappropriate, no juror expressed fear for his or her safety. Two
jurors reported that the gesture had been unsettling or
disconcerting for the jurors who had seen it. One juror stated
that the reported gesture put pressure on the jury, but that the
remedial action taken by the court had been appropriate. Another
juror stated that there could be safety concerns, but after hearing
of the court's order barring the gesturer from the courthouse, she
stated that she was satisfied with her own safety. One juror
reported that he knew nothing of the gesture.
Following the voir dire of the entire jury, Tejeda
renewed his motion for a mistrial and also requested that the jury
foreperson, Juror 11, be deemed an alternate so she would not
participate in the jury deliberation. These motions were
ultimately denied.
-9-
The jury returned a verdict of conviction. Thereafter,
Tejeda filed a motion for new trial based on, inter alia, the
throat-slitting incident. At that time, Tejeda did not argue that
the purported error was a structural one, or that the court was
required to apply a presumption of prejudice to the gesture. The
court denied the new trial motion.
2. Appropriate Analytical Framework
a. Structural Error
Tejeda argues that it is clear that the jury here was not
impartial, despite the trial judge's finding to the contrary and
the jurors' individual declarations that the incident did not
render any of them unable to remain impartial in reaching a
verdict.
Tejeda leaps from this purported factual certainty to an
argument, presented for the first time on appeal, that this issue
must be analyzed as structural error. Tejeda would like this to be
so because in structural error cases the defendant is entitled to
automatic reversal. We reject Tejeda's argument.
Structural error analysis has been constricted in its use
to a limited category of claimed errors, none of which fits this
case. The Supreme Court has held that it is structural error for
a criminal defendant to be tried before a judge who has a financial
interest in convicting him. Tumey v. Ohio, 273 U.S. 510, 523, 535
(1927). Tejeda infers from Tumey that his claim that a juror is
-10-
biased must also be analyzed as a structural error. This is not a
situation in which one or more jurors has a financial interest in
convicting the defendant. We reject Tejeda's argument. The law is
clear both that this is not the stuff of structural error and that
Tejeda's jury bias claim is subject to a different standard of
review. On review, the appellate court asks whether the trial
court abused its discretion in denying a mistrial. That standard
gives deference to the trial judge, who is in the best position to
evaluate the matter.
Mere error in the trial process itself is not structural
error. United States v. Gonzalez-Lopez, 126 S. Ct. 2557, 2563-64
(2006). Structural errors are reserved for cases where criminal
defendants are denied basic protections which "necessarily render
a trial fundamentally unfair" such that "no criminal punishment may
be regarded as fundamentally fair." Neder v. United States, 527
U.S. 1, 8-9 (1999) (quoting Rose v. Clark, 478 U.S. 570, 577-78
(1986)) (internal quotation marks omitted). Tejeda's claim of
juror bias is not within this very limited class of cases. See
United States v. Mackey, 114 F.3d 470, 474 (4th Cir. 1997) (juror
bias and misconduct claims are not structural errors).1
1
As the Ninth Circuit has noted, it would be inconsistent
with the Supreme Court's decision in Remmer v. United States, 347
U.S. 227 (1954), discussed below, to apply structural error review
to these sorts of jury bias issues. See United States v. Dutkel,
192 F.3d 893, 899 n.4 (9th Cir. 1999).
-11-
b. The Remmer Presumption of Prejudice
On appeal, Tejeda also argues for the first time2 that he
is entitled to a presumption of prejudice under Remmer v. United
States, 347 U.S. 227 (1954). We hold that the Remmer presumption
does not apply here.
In Remmer, the defendant learned after his conviction
that a third party had attempted to bribe a juror to get a verdict
favorable to the defendant, and he moved for a new trial. Id. at
228. The court had not informed defense counsel of the bribe, but
had initiated an investigation of the bribe and had held an ex
parte meeting with the prosecution. Id. The defendant's motion
for new trial was denied. Id. at 229. The Supreme Court held that
Remmer was not entitled to an automatic reversal, but rather to a
hearing before the trial court, and that the jury tampering would
be presumed to be prejudicial. Id. at 229-30.
There is an ongoing debate in the circuits about the
limits on and the ongoing vitality of the presumption of prejudice
rule announced in Remmer. Compare United States v. Pennell, 737
F.2d 521, 532-33 (6th Cir. 1984) (presumption of prejudice no
longer exists), with United States v. Sylvester, 143 F.3d 923, 934
(5th Cir. 1998) (proper inquiry is whether likelihood of prejudice
is high enough to assign to the government the burden of proving
2
Tejeda claims that he made this argument below, but we
are unable to find support for that assertion in the record.
-12-
harmlessness), United States v. Williams-Davis, 90 F.3d 490, 497
(D.C. Cir. 1996) (same), United States v. Lloyd, 269 F.3d 228, 238
(3d Cir. 2001) (presumption applies "when the extraneous
information is of a considerably serious nature," such as "when a
juror is directly contacted by third-parties"), United States v.
Dutkel, 192 F.3d 893, 897 (9th Cir. 1999) ("[A] presumption of
prejudice arises if a juror was subjected to coercion or bribery,
and if this intrusion may have affected the juror in the exercise
of his judgment."), United States v. Scull, 321 F.3d 1270, 1280
(10th Cir. 2003) (prejudice presumed "[w]hen members of a jury are
exposed to extraneous information about a matter pending before
[them]"), and United States v. Greer, 285 F.3d 158, 173 (2d Cir.
2000) (similar). As we discussed in United States v. Bradshaw, 281
F.3d 278, 287 (1st Cir. 2002), two later Supreme Court cases,
United States v. Olano, 507 U.S. 725, 737-39 (1993), and Smith v.
Phillips, 455 U.S. 209, 215-17 (1982), narrowed the broad language
in Remmer.
This court has already rejected defendant's argument that
the Remmer presumption applies to all claims of juror bias
resulting from extraneous contacts. See, e.g., Bradshaw, 281 F.3d
at 288-89; United States v. Gomes, 177 F.3d 76, 82-83 (1st Cir.
1999); United States v. Boylan, 898 F.2d 230, 260-62 (1st Cir.
1990).
-13-
We employed the presumption of prejudice in United States
v. Gaston-Brito, 64 F.3d 11 (1st Cir. 1995), where a trial court
summarily denied, without conducting any inquiry, a motion for
mistrial made before the verdict. Id. at 13. We did so in the
context of holding that a trial court is obligated to "conduct a
sufficient inquiry to determine whether the communication was
harmless." Id. (quoting United States v. O'Brien, 972 F.2d 12, 14
(1st Cir. 1992)) (internal quotation marks omitted). Tejeda relies
on Gaston-Brito to argue that given "the jurors' expressions of
fear and concern . . . , it [was] error to find that . . . Tejeda
was not prejudiced by the throat-slitting gesture."
Gaston-Brito is inapposite. In Gaston-Brito, a
cooperating witness was asked to identify the person who had
threatened to kill his daughter if his wife did not turn over drug
proceeds. A case agent seated at the prosecution table pointed to
the defense table, possibly indicating to the jury that the
defendants had made the threat, although no evidence established
that. Id. at 12. The gesture at issue here is of a completely
different nature.
There are other distinctions. As Gaston-Brito noted, the
government created the problem there when a case agent for the
prosecution made an inappropriate gesture conveying substantive
evidence. Id. at 13. Since the jury could well think that the
agent had inside information, there was a risk the jurors would
-14-
consider the information during deliberations. Id. The court in
Gaston-Brito said it was applying a heightened standard when the
prosecution was responsible for improper ex parte conduct.3 Id.
Here, the gesture did not come from the prosecution and was not an
effort to put evidence in front of the jury. We add that there are
different considerations at play when a defendant attempts to
vacate a conviction, in the face of overwhelming evidence of guilt,
on the basis that someone associated with the defense made an
improper gesture to the jury. For example, we would not want to
create an incentive for such gesturing by individuals associated
with defendants.
3. Merits Analysis
Our usual standard of review once the trial judge has
made an appropriate inquiry, and the one that we utilize here, is
an abuse of discretion standard, which recognizes that the district
court "has wide discretion in deciding how to handle and how to
respond to allegations of juror bias and misconduct that arise
during a trial." United States v. Rodríguez-Ortiz, 455 F.3d 18, 23
(1st Cir. 2006); see also United States v. Mikutowicz, 365 F.3d 65,
74 (1st Cir. 2004); Bradshaw, 281 F.3d at 286-87. We review the
3
Similarly, in O'Brien, we applied a presumption of
prejudice when a police officer who had been summoned to testify on
behalf of the government (but who had not yet testified) engaged in
conversation with three jurors in the hallway outside the courtroom
during a recess. 972 F.2d at 13.
-15-
district court's factual findings for clear error. Bradshaw, 281
F.3d at 291.
Where a colorable claim of jury taint surfaces before
jury deliberations occur, our law describes the sequence of steps
a trial judge should take. See id. at 289. The judge should
investigate the allegation promptly, addressing whether the taint-
producing event occurred, and if so, assessing the magnitude and
extent of any prejudice caused. Id. The trial court has wide
discretion in how it goes about this inquiry. Id. at 290. The
district court, if faced with the issue initially post-verdict, may
convene an evidentiary hearing, but it is not obligated to do so.
Boylan, 898 F.2d at 258.
If the court determines that there is a taint-producing
event and a significant potential for prejudice, the trial court
should then examine whether prophylactic measures will alleviate
the prejudice (and if so, take them), or whether the threat can
otherwise be dispelled or disproved. Bradshaw, 281 F.3d at 289.
The court may determine that no curative measures will suffice and
grant a timely motion for a mistrial. Id.
Here, the court followed every step in the procedure.
There is no realistic objection to the process it used. Rather,
Tejeda's attack is on the court's conclusion that any potential
prejudice had been adequately addressed. The court did not apply
-16-
an incorrect legal standard, so we review its conclusion for abuse
of discretion.
This case involves (1) a risk of a perception by a juror
of an implicit threat from someone who might, in the juror's view,
be associated with the defendant; and (2) the risk that this
"threat" might influence the juror's ability to impartially
evaluate the evidence. These risks are weighed against the
individual jurors' own statements that they were not so influenced
and the trial judge's findings of fact that the jurors could fairly
and impartially reach a verdict.
The risks in this case are considerably weaker than those
posed by the facts in Rodríguez-Ortiz, where we upheld a district
court's denial of mistrial. 455 F.3d at 23-24. There, a juror
reported he had received an explicit death threat related to the
case. Id. at 24. On inquiry, the juror said he could remain
impartial, and the court concluded he could do so. Id. Other
circuits have likewise affirmed the denial of a mistrial when a
juror was threatened but assured the court that he could remain
impartial in deciding the case. See, e.g., United States v.
Simmons, No. 99-50381, 2000 WL 429704, at *1-2 (9th Cir. Apr. 20,
2000) (unpublished table decision) (mem.) (affirming denial of
mistrial when spectator made gestures during closing arguments that
made some jurors feel threatened); Leisher v. Conrad, 41 F.3d 753,
754-55 (D.C. Cir. 1994) (affirming denial of mistrial when two
-17-
jurors misinterpreted as menacing a gesture made by defendant
outside of courtroom); United States v. Garner, No. 90-5613, 1991
WL 150788, at *2, 3 (6th Cir. Aug. 6, 1991) (unpublished table
decision) (per curiam) (affirming denial of mistrial when juror was
threatened by men presumed to be affiliated with defendant who made
noise like a gunshot outside the courtroom); United States v.
Zelinka, 862 F.2d 92, 93, 94-96 (6th Cir. 1988) (affirming denial
of mistrial when spectator who appeared to be associated with
defendant made statement that it would be too bad if the elevator
the jurors were boarding should crash, causing fear on the part of
some of the jurors).
Tejeda argues that more than a single juror is involved,
which increases the risk of taint. This, he says, necessarily
requires a different result from that reached in Rodríguez-Ortiz.
It does not. The implicit threat, while serious, was of a
different nature than the direct threat in Rodríguez-Ortiz.
Further, it is unclear here to whom the gesture was intended, and
here there was a possible, but not direct, association between the
threat and the case.
Importantly, the district court did not ignore the risk
that one or more of the jurors could perceive this gesture as a
threat or that a threat might impair impartiality. First, the
court took immediate remedial action. The court had the spectator
who was the source of the "threat" removed from the courtroom and
-18-
informed the jurors not to be concerned. The elderly spectator was
no longer present when the evidence connecting the red van to the
defendant became stronger at trial, and at least some of the jurors
were informed that the spectator was not permitted to be in the
vicinity of the courthouse. Second, the court queried each juror
about whether the throat-slitting gesture would render him or her
unable to impartially evaluate the evidence. The court observed
the demeanor of each juror and concluded that each could be
impartial.
Nor did the court leave the incident for further
conversation and musings among the jurors. The court instructed
them not to discuss it, and, those who were later questioned said
the jurors had complied with that instruction. Normally, if jurors
say they have followed instructions, their statements are credited.
Cf. Penry v. Johnson, 532 U.S. 782, 799 (2001); Boylan, 898 F.2d at
263.4
There are, of course, extreme cases in which jurors'
responses will not be credited. See Bruton v. United States, 391
U.S. 123, 135-36 (1968) ("[T]here are some contexts in which the
4
Similarly, where the claim is that jurors have been
tainted by exposure to improperly admitted inflammatory evidence,
our rule is that jurors are presumed to properly follow curative
instructions. See United States v. Sepulveda, 15 F.3d 1161, 1185
(1st Cir. 1993). That presumption is overcome only by a showing
that it is probable that (1) responsible jurors will be unable to
disregard the evidence, and (2) the evidence likely will have a
seriously prejudicial effect on the defendant. Bradshaw, 281 F.3d
at 285.
-19-
risk that the jury will not, or cannot, follow instructions is so
great, and the consequences of failure so vital to the defendant,
that the practical and human limitations of the jury system cannot
be ignored. Such a context is presented here, where the powerfully
incriminating extrajudicial statements of a codefendant, who stands
accused side-by-side with the defendant, are deliberately spread
before the jury in a joint trial." (citations omitted)). This is
the argument that Tejeda makes -- that the incident was so strongly
and indelibly harmful that no instruction and no voir dire could
cure it. Tejeda adds that the jurors' voir dire responses
demonstrated that they would not be able to disregard the gesture
in reaching a decision in the case. We disagree for the reasons
stated above.
The district court did not abuse its discretion in its
handling of the throat-slitting gesture. Rather, it responded
sensitively and correctly.
B. Severance and Bifurcation
Appellate review of trial court decisions to sever trials
of criminal co-defendants is for manifest abuse of discretion.
United States v. DeLeon, 187 F.3d 60, 63 (1st Cir. 1999); Boylan,
898 F.2d at 246. Ordinarily, criminal co-defendants are to be
tried together. United States v. Houle, 237 F.3d 71, 75-76 (1st
Cir. 2001). This rule has particular resonance in drug conspiracy
cases, where multiple defendants often share a single indictment.
-20-
See United States v. Soto-Beníquez, 356 F.3d 1, 29 (1st Cir. 2003).
Tejeda bears the burden of making "a strong showing of prejudice"
in order to gain a new trial. Boylan, 898 F.2d at 246 (quoting
United States v. Porter, 764 F.2d 1, 12 (1st Cir. 1985)) (internal
quotation marks omitted).
Tejeda twice moved to sever his trial from that of his
co-defendants. He did so as to all co-defendants by motion before
trial. Later, on the first day of trial, he orally moved to sever
his trial from that of co-defendant Figueroa, after he learned that
Figueroa would testify and present a battered woman defense as to
her relationship with Mendes.5 Her testimony would be that Mendes
regularly beat her. Her proffer indicated that she would not
implicate Tejeda in the abuse she suffered.
On appeal, the only issue has to do with the motions to
sever the case against Figueroa. Tejeda's severance motion argued
that it was likely that Figueroa would take the stand and admit her
involvement in the conspiracy, but present a case of duress because
she had been under the influence of Mendes, who had pled guilty.
The court denied the motion for severance saying Tejeda could
cross-examine Figueroa, and that no inconsistent defenses were
involved.
5
Figueroa had informed the court and counsel of this
defense when she moved on April 27, 2005 to continue the trial so
she could prepare such a duress defense. The court denied the
motion for a continuance.
-21-
On May 12, 2005, Tejeda proposed to the trial court that
it bifurcate the trial, differentiating the evidence applicable to
his case and to Figueroa's. Specifically, Tejeda proposed that he
put on his case, the prosecution put on its rebuttal, then the jury
decide on Tejeda's guilt or innocence alone. Thereafter, Figueroa
would present her defense, the prosecution its rebuttal, and the
jury would then render its verdict as to Figueroa. The court
denied Tejeda's motion. The motion was renewed at the close of the
prosecution's case-in-chief and again denied.
The prosecution questions whether the severance motion on
the day of trial and the bifurcation motion6 were timely. See Fed.
R. Crim. P. 12(b)(3)(D) (severance motions must be made before
trial). We bypass the question and rule on the merits.
Severance should be granted where "defenses are so
irreconcilable as to involve fundamental disagreement over core and
basic facts." United States v. Peña-Lora, 225 F.3d 17, 34 (1st
Cir. 2000) (quoting United States v. Paradis, 802 F.2d 553, 561
(1st Cir. 1986) (emphases added)) (internal quotation marks
omitted). But where there is merely some dissonance, where the
defenses are just "somewhat antagonistic," we will usually not
reverse a trial court's denial of severance. United States v.
Serafino, 281 F.3d 327, 329 (1st Cir. 2002). Tejeda relies on
6
Although unusual, bifurcation has been used. See United
States v. Zarnes, 33 F.3d 1454, 1471-72 (7th Cir. 1994); United
States v. Joshi, 896 F.2d 1303, 1306-09 (11th Cir. 1990).
-22-
United States v. Johnson, 478 F.2d 1129 (5th Cir. 1973), to argue
that severance was necessary in this case. But in Johnson, the co-
defendants' theories of defense were truly antagonistic. While
Johnson defended on the basis that he was not present when the
charged crime was committed, his co-defendant made a confession
explicitly and necessarily incriminating Johnson and defended only
on the basis that he lacked the necessary mens rea. Id. at 1131-
32.
Here, by contrast, there was no true antagonism of
defenses. Tejeda's defense explicitly acknowledged there was a
drug conspiracy; he simply argued the prosecution could not prove
beyond a reasonable doubt that he was the New York source of drugs
for the conspiracy. Thus, Figueroa's defense that there was a drug
conspiracy, but that she had acted under duress, was not an
antagonistic defense at all. Her defense did not in any way hinge
on Tejeda's participation in the conspiracy. Indeed, even if the
jury accepted her duress defense it could either accept or reject
Tejeda's defense. Severance is not required every time a duress
defense is asserted by one defendant. Peña-Lora, 225 F.3d at 34;
United States v. Arias-Villaneuva, 998 F.2d 1491, 1507 (9th Cir.
1993), overruled on other grounds by United States v. Jimenez-
Ortega, 472 F.3d 1102, 1102-04 (9th Cir. 2007).
Even if Tejeda had shown that severance from Figueroa was
appropriate in this drug conspiracy case, it was his burden to show
-23-
prejudice. Boylan, 898 F.2d at 246; Porter, 764 F.2d at 12.
"[P]rejudice means more than just a better chance of acquittal at
a separate trial." Boylan, 898 F.2d at 246 (quoting United States
v. Martinez, 479 F.2d 824, 828 (1st Cir. 1973)) (internal quotation
marks omitted). "Garden variety" prejudice, which always exists
when more than one defendant or offense are tried together, does
not warrant a new trial. Id. Tejeda has not met his burden here.
Tejeda's real argument is not one of antagonism. It is
that Figueroa's testimony about being regularly beaten by her
boyfriend Mendes, the head of the conspiracy, would spill over to
Tejeda, who was accused of conspiring with Mendes in drug
distribution. This is a sort of argument that "you are known by
the friends you keep," and bad friends will taint you in the jury's
eyes. It is almost inherent in drug conspiracy cases that a co-
conspirator may have engaged in other types of blameworthy conduct.
That is not enough to warrant severance of co-defendants' trials.
While Mendes' treatment of Figueroa may have been more shocking
than run-of-the-mill blameworthy conduct from drug co-conspirators,
Tejeda's role in the conspiracy -- as a geographically-removed
supplier several states distant -- lessened the risk that the
jurors might ascribe Mendes' conduct to him. Moreover, the trial
judge instructed the jury that evidence of Mendes' mistreatment of
Figueroa was not to be considered in the case against Tejeda.
-24-
Figueroa did identify Tejeda in court as the drug ring's
New York source of supply. She also testified about numerous trips
to New York to pick up drugs. But all of this testimony, including
the identification, was cumulative of Eldridge's testimony. There
was more than sufficient evidence against Tejeda without Figueroa's
identification. In any event, Figueroa's testimony regarding
Tejeda was admissible against Tejeda regardless of whether the
trials were severed. Further, Tejeda was permitted to cross-
examine Figueroa at trial, minimizing any thought of misconduct by
association.
The district court did not abuse its discretion in
denying the severance motion. Nor was there any abuse of
discretion in the denial of the bifurcation procedure. Such a
procedure risked confusion of the jury and unwarranted singling out
of the case against Tejeda.
Given that we have found no error in the district court's
handling of the throat-slitting gesture or the severance and
bifurcation motions, Tejeda's cumulative error claim is without
merit.
III. Sentencing Claims
A. Application of Crack Cocaine Guidelines
We review de novo sentencing issues involving questions
of law. United States v. McCarthy, 77 F.3d 522, 535 (1st Cir.
1996).
-25-
The government argues that Tejeda has forfeited his claim
that the district court erred in applying the crack cocaine
Sentencing Guidelines, and that review therefore should be only for
plain error. See Fed. R. Crim. P. 52(b); see also Olano, 507 U.S.
at 732-35. The government notes that Tejeda failed to object to
the district court's limiting of the verdict slip to refer only to
"cocaine base" and not "crack." Nor did he object to the district
court's statement at the charge conference that it would decide the
crack issue in a jury-waived proceeding, or the district court's
instruction to the jury, which equated crack with cocaine base.
The prosecution argues that Tejeda's presentencing motion to
preclude application of the crack Guidelines was insufficient to
preserve the claim because it was at that time too late to present
the issue to the jury. See United States v. Pacheco, 434 F.3d 106,
115 (1st Cir. 2006).
We bypass the question of forfeiture because even if
Tejeda preserved his claim, it fails on the merits. As Tejeda
conceded before the district court, our decision in United States
v. Medina, 427 F.3d 88 (1st Cir. 2005), forecloses any argument
that as a general matter the government must prove to the jury
beyond a reasonable doubt that the cocaine base at issue is crack
cocaine. In Medina, the defendant was convicted of, inter alia,
possession with intent to distribute over fifty grams of cocaine
base. Id. at 90. On appeal, Medina argued that the trial court
-26-
had erred in not instructing the jury that the government was
required to prove that the cocaine base he possessed was crack
cocaine.7 Id. at 92. This court held that "the government is not
required to prove that the substance involved in a given case is
crack in order to secure a conviction under" 21 U.S.C. § 841, the
statute specifying the substantive offense that was the object of
the conspiracy for which Tejeda was convicted. Id. The fact that
the cocaine base was crack was "only relevant to the court at
sentencing." Id. at 92 n.3. Moreover, in United States v.
O'Brien, 435 F.3d 36 (1st Cir. 2006), we held that, as long as the
statutory maximum is not affected, a sentencing judge is permitted
to determine by a preponderance of the evidence the factual basis
for a sentencing enhancement. Id. at 41. Such was the case here.
There was no error in the district court's determining that the
cocaine base at issue in this case was crack.8
Tejeda argues that the sentencing court was not permitted
to make the crack determination in his case because it was the law
of the case that all sentencing enhancements be proved to the jury
beyond a reasonable doubt. This argument is without merit. At
7
The issue in Medina was different. Medina argued that
the jury instruction was error because the statute at issue, 21
U.S.C. § 841, regulated only possession of crack, not cocaine base
more generally. 427 F.3d at 92.
8
Tejeda does not dispute that there was sufficient
evidence presented at trial to conclude that the drugs at issue
were crack.
-27-
times the court did state that it would require the government to
prove sentencing enhancements to the jury beyond a reasonable
doubt; but it also determined that whether the cocaine base at
issue was crack cocaine would be decided in a jury-waived
proceeding, and it further decided at sentencing that it was
permitted to make the determination that the cocaine base was
crack. The court was not prohibited from revising its position on
proof of sentencing enhancements to the jury. See Harlow v.
Children's Hosp., 432 F.3d 50, 55 (1st Cir. 2005) ("[L]aw of the
case permits a lower court to review prior interlocutory orders as
long as that review is not an abuse of discretion."); Fiori v.
Truck Drivers, Local 170, 354 F.3d 84, 90 (1st Cir. 2004) (stating
that law of the case doctrine does not bar the district court from
revising a prior ruling, as long as prejudice does not result).
Tejeda argues that he was prejudiced by the district
court's change of position because (1) the court never conducted a
jury-waived proceeding to determine whether the cocaine base at
issue was crack cocaine and (2) the court had promised this
jury-waived proceeding, and as a result, the trial record, on which
the district court relied in determining that the cocaine base was
crack, was underdeveloped with respect to the crack issue.
Tejeda is correct that the district court repeatedly
stated that the government would not be able to seek a sentencing
enhancement for crack unless it had pled and proved the issue to
-28-
the jury. It is possible that the court's about-face at the
sentencing disposition9 might have constituted "unfair surprise."
See, e.g., United States v. Moody, 903 F.2d 321, 331 (5th Cir.
1990) ("There is also an element of unfair surprise in the court's
belated reversal concerning Bauman's testimony. . . . By reversing
its earlier ruling, . . . the district court was obliged to provide
Moody an opportunity for surrebuttal, assuming of course that the
defense could proffer evidence to parry the expanded government
case.") It would have been better for the court here to have
explicitly informed the parties of its ruling that it could
determine the crack enhancement in the absence of a jury verdict
and allowed the parties to submit factual evidence with regards to
the enhancement.
9
The district court did in fact conduct a jury-waived
proceeding on the crack issue on September 22, 2005. At that
proceeding, Tejeda offered an expert to testify to the difference
between crack and other forms of cocaine base. However, the
parties all agreed that crack was merely one form of cocaine base,
and there was no factual dispute as to whether crack and cocaine
base were one and the same. Tejeda also offered his expert to cast
doubt that the drugs seized on March 16, 2004 from the car in which
Tejeda had been riding were crack. He proffered that his expert
would testify that while the DEA had concluded that a different
drug sample -- seized from co-conspirator Custer's home -- was
crack, the DEA had not concluded that the drugs linked to Tejeda
were crack. This was an inaccurate characterization of the DEA's
conclusions, as the prosecution pointed out. The parties had
stipulated that the DEA had concluded that both tested samples
contained cocaine base. The DEA had made no finding as to whether
either sample contained crack cocaine. As a result, Tejeda's
expert's testimony would not have been informative on any factual
dispute. The district court solicited additional briefs from the
parties and stated that if necessary, it would convene an
evidentiary hearing at some point in the future.
-29-
The evidence that Tejeda states he would have offered,
however, would not have precluded the court from finding that the
crack Guidelines were applicable. Prior to sentencing, Tejeda
submitted a brief to the district court in which he claimed -- in
a footnote -- as he does now, that the DEA's test results showed
that the drug sample linked to Tejeda had not tested positive for
sodium bicarbonate, a "signature ingredient" of crack. Tejeda did
not purport to have performed any independent tests of the drug
sample connected to him, but rather relied solely on the DEA's
analysis. Tejeda attached to his brief the DEA's work papers and
test results. As a result, at the point it made its determination
that the drugs at issue in the case were crack, the district court
had before it the very results on which Tejeda's expert would have
offered testimony. Moreover, even if Tejeda is correct that the
particular sample tested by the DEA did not contain sodium
bicarbonate, there nonetheless was ample evidence at trial for the
district court to conclude that the drugs involved in the
conspiracy were crack. Three law enforcement officers testified,
based on visual observation, that the drugs seized from the car on
March 16 were crack, and Eldridge and Figueroa both testified that
the drugs regularly purchased from Tejeda were crack. See United
States v. Walters, 904 F.2d 765, 770 (1st Cir. 1990) ("Proof based
on scientific analysis or expert testimony is not required to prove
the illicit nature of a substance, and identification of a
-30-
substance as a drug may be based on the opinion of a knowledgeable
lay person."). The identity of the drugs that Tejeda dealt does
not hinge on this one sample.
As to Tejeda's second argument, it is unpersuasive for
Tejeda to suggest that he would have presented an expert at trial
had he known what would be the nature of the jury-waived
proceeding. Tejeda did attempt to have his expert testify at
trial. In his proffer Tejeda indicated that the expert would
testify about the difference between cocaine base and crack cocaine
and the difficulty of telling the two apart visually. The district
court, however, refused to allow the expert to testify because the
request was not timely,10 and because, the court concluded, the
testimony would confuse the jury. The court did say at the time it
precluded the expert from testifying that it would hear the expert
at the time of sentencing. But this was not the reason that the
expert was precluded from testifying at trial.11
The jury was not required to find that the cocaine base
possessed by Tejeda was crack. The district court did not abuse
its discretion when it revised its position on proof of sentencing
10
Tejeda conceded this in the district court.
11
Tejeda also refers to thwarted attempts to cross-examine
the government's witnesses about the differences between crack and
cocaine base. Tejeda was precluded from questioning government
witnesses about the chemical differences between crack and other
types of cocaine base because the witnesses in question were not
chemists and were not qualified to testify on the subject.
-31-
enhancements. Tejeda was not prejudiced by the district court's
revision of its prior ruling.
Finally, Tejeda argues that the district court's deciding
that the crack cocaine Guidelines applied violated his protection
against double jeopardy and his due process rights. Tejeda
essentially argues that the government failed to prove at trial
that the drugs were crack, and that he should not have been forced
at sentencing to once again mount a defense to such a charge.
There was no error in the district court's application of the crack
cocaine Guidelines, much less a due process violation. Likewise,
double jeopardy principles are inapplicable here. Double jeopardy
concerns arise only when a jury verdict or a trial court's ruling,
"whatever its label, actually represents a resolution, correct or
not, of some or all of the factual elements of the offense
charged." Pacheco, 434 F.3d at 112 (quoting United States v.
Martin Linen Supply Co., 430 U.S. 564, 571 (1977)) (internal
quotation marks omitted). There was no such trial court ruling
here. Whether or not the cocaine base at issue was crack is not a
factual element of the offense charged. Medina, 427 F.3d at 92 &
n.3.
B. Reasonableness of Tejeda's Sentence
Tejeda argues that his sentence is unreasonable as a
matter of law. See United States v. Jiménez-Beltre, 440 F.3d 514,
519 (1st Cir. 2006) (en banc). He argues that the nature and
-32-
circumstances of his offense, his personal history and
characteristics, his potential for rehabilitation, sentences
imposed by other federal courts, and the sentences imposed on his
co-defendants all weigh in favor of his receiving the mandatory
minimum sentence of 120 months. Tejeda's counsel made all of these
arguments to the district court at his sentencing hearing.
The district court explained its reasons for imposing a
twenty-year sentence. It discussed the fact that Tejeda was "the
supplier in a massive [crack] distribution ring" and stated that
"crack cocaine is one of the most addictive, dangerous substances
known to our society." The court stated that its sentence took
rehabilitation into account, although the court did not think
rehabilitation particularly likely,12 and it referred to Tejeda's
family circumstances, concluding that while they were tragic, they
had been caused by Tejeda. The court further stated that
comparison to the average sentence imposed by other courts for the
offense in question was not necessarily instructive since that
average did not account for factors such as drug quantity.
Finally, we note that "[a]lthough a district court may consider
disparities among co-defendants in determining a sentence, [a
12
We disagree with Tejeda's assertion that the district
court did not consider his particular potential for rehabilitation.
The court stated that the sentence did not "emphasize
rehabilitation due to the nature of the offense." We understand
this to mean that given the particulars of Tejeda's offense, not
drug offenses in general, the court did not think rehabilitation
particularly likely.
-33-
defendant's] sentence [is not] unreasonable simply because his
co-defendants agreed to help the government in exchange for reduced
sentences." United States v. Vázquez-Rivera, 470 F.3d 443, 449
(1st Cir. 2006). Tejeda's sentence is not unreasonable.
Tejeda's conviction and sentence are affirmed.
-34-