United States Court of Appeals
For the First Circuit
No. 05-2728
UNITED STATES,
Appellee,
v.
ORLANDO MALPICA-GARCÍA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge]
Before
Lipez, Circuit Judge,
Selya, Senior Circuit Judge,
and DiClerico, Jr.,* District Judge.
Luis A. Guzmán Dupont for appellant.
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, with whom Rosa Emilia Rodríguez-Vélez, United
States Attorney, was on brief for appellee.
June 6, 2007
*
Of the District of New Hampshire, sitting by designation.
DICLERICO, District Judge. Following a six-day trial,
Orlando Malpica-García was found guilty of conspiring to possess
and distribute drugs and of conspiring to possess and use firearms
in furtherance of drug trafficking. He appeals both convictions,
arguing that the district court allowed hearsay testimony in
violation of the Confrontation Clause of the Sixth Amendment and
allowed testimony about his possession of a weapon that was not
charged in the indictment in violation of the Fifth Amendment.
Malpica-García contends that without the challenged testimony, the
evidence is insufficient to support the conviction on either
count.1
I.
A federal grand jury returned an indictment on March 13,
2003, charging Malpica-García and twenty-six others with conspiracy
to commit drug-related offenses beginning in June of 2001. Later
in the evening of March 13, a Puerto Rico police officer stopped a
car on the Diego Expressway because it lacked a license plate.
Malpica-García was the driver of the car and told the officer that
he did not have a driver's license. The officer ordered Malpica-
García out of the car. The police found a .38 caliber gun in the
course of their inventory search of the car.
1
At oral argument, Malpica-García's counsel conceded that the
evidence would be sufficient if the challenged testimony were
admissible.
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Malpica-García was arrested on March 20, 2003. On July
17, 2003, a grand jury returned a superseding indictment, again
charging Malpica-García and his co-defendants with drug-related
offenses beginning in June of 2001. Malpica-García was tried
separately from his co-defendants, some of whom pled guilty before
his trial. Two of Malpica-García's alleged co-conspirators, Leonor
Cuadrado-Figueroa and Edna Díaz-Pastrana, testified as government
witnesses against him. They described drug operations and use of
firearms by Malpica-García and others.
On July 1, 2005, the jury found Malpica-García guilty of
conspiring to possess with the intent to distribute and
distributing "five (5) kilograms or more of cocaine, and/or fifty
(50) kilograms of cocaine base (crack), and/or one (1) kilogram or
more, of heroin, within one thousand (1,000) feet of a public
school" and of conspiring "to carry a firearm in relation to a drug
trafficking offense." The jury found him not guilty on the third
charge, which was possessing a firearm in a school zone. He was
sentenced to 385 months of imprisonment on the first count and 240
months on the second count, to be served concurrently.
II.
Malpica-García contends that parts of the testimony given
by Edna Díaz-Pastrana and Leonor Cuadrado-Figuero were admitted at
trial in violation of the Sixth Amendment's Confrontation Clause,
as interpreted in Washington v. Crawford, 541 U.S. 36 (2004). He
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also contends that admitting evidence of the gun found in the car
he was driving on March 13, 2003, constituted a constructive
amendment of the indictment in violation of the Fifth Amendment.
He asserts that without the challenged evidence, the evidence at
trial would have been insufficient to support his conviction on
either count.
A. Confrontation Clause
In general, a district court's evidentiary rulings are
reviewed for an abuse of discretion. When an essentially legal
issue arises as to whether evidence has been admitted in violation
of the Confrontation Clause, however, we review a properly
preserved constitutional challenge de novo. United States v.
Walter, 434 F.3d 30, 33 (1st Cir. 2006). In addition, we may
affirm a district court judgment on any ground supported by the
record. United States v. Ossai, --- F.3d ---, 2007 WL 1191139, *4
(1st Cir. Apr. 24, 2007).
In Crawford, the Court held "that the Confrontation
Clause 'commands, not that evidence be reliable, but that
reliability be assessed in a particular manner: by testing in the
crucible of cross-examination.'" United States v. Gonzalez-Lopez,
126 S. Ct. 2557, 2562 (2006) (quoting Crawford, 541 U.S. at 61).
Therefore, "a declarant's 'testimonial' out-of-court statement is
not admissible under the Confrontation Clause unless (1) the
declarant testifies, or (2) the defendant had a prior opportunity
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for cross-examination and the declarant is unavailable, or (3) the
evidence is admitted for purposes other than establishing the truth
of the matter asserted." United States v. Maher, 454 F.3d 13, 19-
20 (1st Cir. 2006) (internal citations omitted). The Confrontation
Clause, as interpreted in Crawford, prohibits evidence of
statements that are both hearsay and testimonial. See United
States v. Brito, 427 F.3d 53, 61-62 (1st Cir. 2005).
1. Díaz-Pastrana
At trial, the prosecutor asked Edna Díaz-Pastrana how she
began using or trafficking in drugs. She testified that she began
to sell drugs through "Jaime" and that "[h]e was the one who would
supply me with the drugs, and Jaime would get in touch with . . ."
At that point, defense counsel interrupted her testimony with an
objection, and a bench conference ensued. The court ruled that
Díaz-Pastrana's statement was not hearsay.
The prosecutor then asked Díaz-Pastrana: "How do you
know that Jaime got in contact with Orlando Malpica?" Defense
counsel objected. A second bench conference was called, and
defense counsel argued that Díaz-Pastrana's testimony was
inadmissible under Crawford. The court instructed the prosecutor
to begin with questions about information the witness had from
Malpica-García. The prosecutor followed those instructions, and
Díaz-Pastrana testified only about her personal knowledge of and
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contact with Malpica-García. The defense did not object to that
testimony nor is that testimony challenged on appeal.
To come within the parameters of the Confrontation
Clause, the testimony first must be hearsay. Brito, 427 F.3d at
61. Broadly stated, hearsay is an out-of-court statement that is
offered as evidence of the truth of the matter asserted. Fed. R.
Evid. 801. In the challenged part of her testimony, Díaz-Pastrana
testified about her own actions that involved Jaime. She did not
testify as to any out-of-court statements made by Jaime.
Therefore, the challenged testimony was not hearsay.
Malpica-García also contends that Díaz-Pastrana's
testimony about his drug activities was inadmissible under
Crawford. She testified that "drug point" operators, meaning those
who sold drugs at the public housing project where she lived and
worked, had to pay Malpica-García money, called "prote," as
protection from having the drug point closed down. She named the
drug point operators, including Carlitos Way, who paid Malpica-
García "prote."
Defense counsel objected. At sidebar, defense counsel
represented that Díaz-Pastrana's testimony that Carlitos Way was a
drug point operator who paid prote to Malpica-García was hearsay
because she only knew that information from Carlitos Way's wife.2
2
In his appellate brief, Malpica-García states: "This witness
mentioned . . . a co-conspirator named Carlos D. Cruz Rodriguez
a/k/a "Carlitos Way" and his wife that were not available for the
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Defense counsel objected that Díaz-Pastrana's testimony violated
the Confrontation Clause under Crawford because Carlitos Way was
not available to testify. The district court ruled that the
testimony was admissible as a statement of a co-conspirator. On
appeal, Malpica-García argues that Díaz-Pastrana's testimony about
Carlitos Way was inadmissible under Crawford.3
Díaz-Pastrana's testimony did not expressly include an
out-of-court statement made by another declarant. If, as defense
counsel asserted, her challenged testimony were based on an out-of-
court statement by either Carlitos Way or his wife, rather than on
Díaz-Pastrana's personal knowledge, the out-of-court statement must
also be testimonial to render it inadmissible under Crawford. See
United States v. Hansen, 434 F.3d 92, 100 (1st Cir. 2006).
In Crawford, the Court gave examples of the kinds of
statements that would be testimonial: "ex-parte in-court testimony
defense . . . ." Contrary to that representation, Díaz-Pastrana
did not mention Carlitos Way's wife. Defense counsel said at
sidebar that Carlitos Way's wife was the source of Díaz-Pastrana's
knowledge about him. Therefore, the jury never heard about
Carlitos Way's wife.
3
Although Malpica-García states that the challenged testimony
did not qualify as co-conspirator statements under Federal Rule of
Evidence 801(d)(2)(E), he provides no argument to support that
assertion. In fact, Malpica-García refers to Carlitos Way as a co-
conspirator in his brief. The defense's objection at trial and the
issue raised on appeal is whether the testimony was inadmissible
under Crawford. We need not and will not delve into the separate
issue of whether the challenged testimony was admissible under Rule
801(d)(2)(E), in the absence of a developed argument on that issue.
See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
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(or its equivalent); statements contained in formalized documents
(such as affidavits and depositions); and statements made as part
of a confession resulting from custodial interrogation." Hansen,
434 F.3d at 100. Statements made during and in furtherance of a
conspiracy are not testimonial. Crawford, 541 U.S. at 56; Hansen,
434 F.3d at 100; United States v. Sanchez-Berrios, 424 F.3d 65, 75
(1st Cir. 2005).
Crawford, however, did not provide a comprehensive
formulation or definition of what statements would be deemed to be
testimonial. United States v. Rodriguez-Marrero, 390 F.3d 1, 18
(1st Cir. 2004). Following Crawford, we have held that statements
are not testimonial when they are made during a private
conversation, when they are not included in formalized documents or
made in response to interrogation or examination, and when they are
not made "under circumstances in which an objective person would
reasonably believe that the statement would be available for use at
a later trial." Horton v. Allen, 370 F.3d 75, 84 (1st Cir. 2004);
accord Hansen, 434 F.3d at 100. Testimonial statements are
generally the product of a declarant's responses to official
questioning and are made in a context in which the declarant should
know that they will be preserved for prosecutorial use. See United
States v. Maher, 454 F.3d 13, 22 (1st Cir. 2006); Brito, 427 F.3d
at 60.
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Assuming, but not deciding, that Díaz-Pastrana's
testimony that Carlitos Way paid "prote" to Malpica-García was
hearsay, the out-of-court statements were not testimonial within
the meaning of Crawford. The record includes no indication that
Díaz-Pastrana was repeating statements that Carlitos Way or his
wife made to police, in an investigative context, or in a courtroom
setting. Instead, such statements would have been made in the
course of private conversations or in casual remarks that no one
expected would be preserved or used later at trial. Therefore,
even if Díaz-Pastrana's testimony were based on statements made by
Carlitos Way or his wife, because those statements were not
testimonial, the challenged testimony was not prohibited under
Crawford.
2. Leonor Cuadrado
Malpica-García also challenges testimony given by Leonor
Cuadrado about a meeting that occurred at the public housing
project in early 2003 and about Malpica-García's dealings with
another co-defendant known as "Motito." At trial, the defense
objected to Cuadrado's testimony about the meeting and Malpica-
García's dealings with Motito based on Crawford. The district
court denied the defense's objections to that testimony.
In the first challenged statement, Cuadrado testified
that Malpica-García and several of his co-defendants attended a
meeting in front of building seven at the housing project. She
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said that some of those attending the meeting wanted "drug points"
in the project to be closed but Malpica-García opposed closing
them. She further testified that although she saw the people who
had congregated for the meeting, she did not attend and that her
husband, who was there, told her what was discussed.4 Cuadrado's
challenged testimony about Motito was that he was a friend of hers
who complained about Malpica-García asking him for "material"
(meaning drugs) and money.
Neither the conversation about the meeting nor Motito's
complaints about Malpica-García were testimonial statements within
the meaning of Crawford. Instead, both were part of private
conversations or were casual remarks made without any expectation
that the information would be saved and used at a trial.
Therefore, Crawford does not apply.
B. Constructive Amendment of the Indictment
Based on the March 13, 2003, indictment, Malpica-García
contends that the police officer's testimony at trial about
stopping his car on the evening of March 13 and finding a gun in
the car constituted a constructive amendment of the indictment.
Malpica-García argues that because the grand jury returned the
indictment at 5:09 p.m. on March 13, the stop and search of the car
he was driving at 10:30 p.m. were not included in the offenses
4
The person Cuadrado referred to as her husband is Jesus
Encarnación Medina, known as "Chuchú," another co-defendant.
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charged in the indictment. Based on that sequence of events, he
asserts that the police officer's testimony about finding the gun
was evidence of an offense not charged in the indictment, entitling
him to a reversal of his conviction on the charge of conspiracy to
carry a firearm in relation to a drug trafficking offense.
"A constructive amendment (fatal without regard to
prejudice) occurs when the charging terms of the indictment are
altered, either literally or in effect, by prosecution or court
after the grand jury has last passed on them . . . ." United
States v. Mueffelman, 470 F.3d 33, 38 (1st Cir. 2006) (internal
quotation marks omitted). Therefore, "[a] defendant cannot
complain of an improper constructive amendment if the indictment is
actually amended by resubmission to the grand jury." United States
v. Calderon, 77 F.3d 6, 10 (1st Cir. 1996).
In this case, Malpica-García's constructive amendment
argument is based entirely upon the indictment returned on March
13, 2003. A superseding indictment, however, was submitted to the
grand jury and was returned on July 17, 2003. The superseding
indictment, in pertinent part, charged Malpica-García with
conspiring to use, carry, or possess a firearm in furtherance of a
drug trafficking crime from September 12, 2001, to March 13, 2003.
Because the superseding indictment was returned months after March
13 and includes material events that occurred at any time during
March 13, Malpica-García's argument based on the timing of the
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previous indictment is unavailing. Therefore, the prosecution did
not constructively amend the indictment.
C. Sufficiency of the Evidence
As is noted above (see footnote one), Malpica-García's
counsel conceded at oral argument that if the challenged testimony
were properly admitted at trial, the evidence was sufficient to
support the jury's verdict. That being the case, we need not
consider Malpica-García's argument on insufficiency of the
evidence.
Affirmed.
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