United States Court of Appeals
For the First Circuit
No. 07-1982
UNITED STATES OF AMERICA,
Appellee,
v.
BENITO GRULLON, a/k/a QUICO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Torruella and Boudin, Circuit Judges,
and Schwarzer,* District Judge.
Israel Arana for appellant.
Kirby A. Heller, Department of Justice, with whom Michael J.
Sullivan, United States Attorney, and Neil J. Gallagher, Assistant
United States Attorney, were on brief for appellee.
October 24, 2008
*
Of the Northern District of California, sitting by
designation.
BOUDIN, Circuit Judge. Benito Grullon was indicted for
conspiring to distribute cocaine, 21 U.S.C. § 846 (2000), and also
for distributing cocaine, 21 U.S.C. § 841(a)(1). He was convicted
on the conspiracy count; the distribution count was dismissed by
the district court without prejudice for pre-indictment delay. He
was sentenced to 63 months imprisonment and now appeals.
Grullon's first contention on appeal is that his motion
for judgment of acquittal should have been granted because the
evidence against him was insufficient. On such a claim, the trial
evidence is recounted in the light most favorable to the verdict.
United States v. Portela, 167 F.3d 687, 692 (1st Cir. 1999).
We address together both the sufficiency claim and related attacks
on the evidence itself.
Grullon appeared on the government's radar screen through
a controlled drug buy from a paid government informant, Fernando
Soto. Later, Grullon was identified on a Drug Enforcement
Administration wiretap as supplying drugs to his co-defendant
Manuel Germosen, as well as Germosen's brother, Christian Germosen.
At trial, the government offered two lines of evidence from
different sources to prove Grullon's involvement in a drug
conspiracy encompassing both the Soto sale and Germosen ring.
The first line stemmed from the DEA's authorized wiretap
of Manuel Germosen, part of a DEA investigation into what it
believed to be a cocaine organization operating in Lynn and
-2-
Peabody, Massachusetts. The wiretap revealed Germosen engaging in
various conversations aimed at obtaining cocaine from different
sources and then selling the cocaine to others. Often, Manuel's
brother Christian, would assist with delivery of the cocaine and
the collection of money.
The wiretap revealed that one of Manuel Germosen's
suppliers was a man referred to variously as Benito or "Quico."
Identification of this supplier was the second strand of evidence.
During the original, controlled drug buy on July 30, 2003, the
seller's phone number was given to Soto, who passed on to the DEA
both the phone number and the seller's license plate number, which
Soto had observed. Both were traced to Grullon. Further,
Germosen's phone calls to Benito and "Quico" were to the phone
number Grullon had provided to Soto.
Grullon says that three of the witnesses who testified
against him were unreliable: informant Soto and co-defendant Manuel
Germosen because they are career criminals, and Detective Edwards,
who worked the case for the DEA Task Force, because, inter alia,
tape recordings of the controlled drug buy were lost. Grullon also
says that his recorded conversations with Germosen do not involve
"drug talk" and thus prove nothing.
If the jury accepted the witnesses' testimony, that
evidence together with the calls recorded on the wiretap amply
showed Grullon to be part of a drug conspiracy: specifically, that
-3-
Manuel Germosen sought to purchase cocaine from Grullon to
replenish his diminished supply; that Manuel Germosen told his
brother to deliver proceeds of the sale of drugs to Grullon; and
that Christian Germosen obtained quantities of cocaine from
Grullon, which Christian would then sell to his own customers. In
addition, Manuel Germosen testified that Grullon had supplied him
drugs later sold to others.
Many defendants are convicted solely on the basis of
testimony by criminal confederates. Their truthfulness, like the
weight to be placed on Edwards' testimony, was for the jury to
determine. United States v. Vázquez Guadalupe, 407 F.3d 492, 499
(1st Cir. 2005). In addition, here the recordings themselves were
available to the jury and Soto testified as to one of the
accomplished transactions. The jury could not be compelled to
convict but it would have been surprising if it had not done so.
Grullon's argument that the recorded conversations were
not "drug talk" was for the jury to resolve. Seemingly the
conversations recorded between him and Manuel Germosen consisted of
"code words," but Manuel Germosen testified to his perceived
meaning of those words. A "lay witness[] with . . . inside
knowledge [may] give [his] opinion[] as to the meanings of 'code
words' used by fellow conspirators in taped conversations" where
the testimony satisfies the requirements of Fed. R. Civ. P. 701.
United States v. Gaines, 170 F.3d 72, 77 (1st Cir. 1999).
-4-
Despite hints to the contrary in Grullon's brief,
substantial evidence indicated that he was the "Benito" supplying
drugs to the Germosen brothers. Manuel Germosen was calling
Grullon at the very phone number that Grullon had previously given
to Soto as Grulllon's own. Other internal evidence also pointed to
Grullon as "Benito." A Massachusetts state trooper, a native
Spanish speaker, testified that the voices attributed to Grullon on
the relevant calls were of the same person.
Grullon's second major claim is that the July 30th drug
sale to Soto--even if showing Grullon to be a drug seller--was not
probative of the charged conspiracy involving the Germosen brothers
and should not have been allowed in evidence. Grullon may be
arguing that there was no evidence that the Germosens were involved
in the controlled buy, and thus the July 30th transaction was not
proof of the charged conspiracy, but was instead merely an
independent crime that would serve only to prejudice the jury. Or
he may be saying that the actual conspiracy was smaller than that
charged.
The jury heard testimony that during the time period of
the July 30th sale, Manuel Germosen was selling Grullon large
amounts of cocaine, which Grullon would then break up and sell to
others. So the jury could rationally infer that the July 30th sale
was part of the conspiracy either because Manuel Germosen had
directly supplied the drugs that were sold by Grullon or, at the
-5-
very least, the proceeds of the sale were used by Grullon to
further the conspiracy (i.e. by enabling Grullon to buy more drugs
from Germosen). Cf. United States v. Drougas, 748 F.2d 8, 17 (1st
Cir. 1984).
The conspiracy may be unusual because Grullon alternated
between being both a supplier to and a buyer from the Germosens.
But the jury could infer from the evidence that the Soto
transaction was part of the larger conspiracy. This is enough to
get the Soto evidence to the jury, even if there were not other
arguments for relevance; and it permitted, even if it did not
require, the jury to conclude that the conspiracy in fact embraced
both the Soto sale and the transactions with Manuel Germosen.
Grullon argues in the alternative that the July 30th sale
was barred as evidence because the transaction was the predicate
for the 841(a)(1) count (distribution) which was dismissed for
undue delay under the Speedy Trial Act, 18 U.S.C. § 3161 et seq.
(2000). Whether this bars the government's reliance on the
transaction as part of its conspiracy charge apparently presents an
issue of first impression in this circuit; but the text of the
statute, its purpose and the relevant precedents all weigh against
the defendant's position.
Under the Speedy Trial Act, the government must file an
indictment against a defendant "within thirty days from the date on
which such individual was arrested or served with a summons in
-6-
connection with such charges." 18 U.S.C. § 3161(b). Where, as was
true with the § 841(a)(1) claim, the government fails to comply
with the time limit,
such charge against that individual contained
in such complaint shall be dismissed [with or
without prejudice depending on certain
factors] or otherwise dropped.
18 U.S.C. § 3162(a)(1)(emphasis added). See also United States v.
Rodriguez, 63 F.3d 1159, 1162 (1st Cir. 1995).
The language just quoted says only that the charge must
be dropped (and not necessarily with prejudice to a new charge
being filed). Whether or not the dismissal is with prejudice, the
statute says nothing about barring the institution of a new charge
for a different offense based on some or all of the underlying
transaction and certainly nothing about barring the use of
pertinent evidence of the dismissed charge so far as it might prove
the new charge.
Purpose, as well as text, is unhelpful to Grullon. A
main aim of the timely indictment requirement is to "'ensure that
the defendant is not held under an arrest warrant for an excessive
period without receiving formal notice of the charge against which
he must prepare to defend himself.'" United States v. Meade, 110
F.3d 190, 200 (1st Cir. 1997) (quoting United States v. Berry, 90
F.3d 148, 151 (6th Cir. 1996)). Legislative history also suggests
a purpose to "reduc[e] defendants' opportunity to commit crimes
while on pretrial release and preventing extended pretrial delay
-7-
from impairing the deterrent effect of punishment." Zedner v.
United States, 547 U.S. 489, 501 (2006) (citing H.R Rep. No. 93-
1508, at 8 (1974)).
Neither purpose is undercut by allowing the conduct of a
dismissed charge from being used as evidence of a different crime
where the government has conformed with the Act's strictures. The
inconvenience of reindictment, and the risk that this will not be
permitted, gives the government ample incentive to avoid delay.
And, by hypothesis, the new charge--in which the old transaction
may play some role--is not one that was unduly delayed under the
Speedy Trial Act.
There are two other issues warranting brief mention. The
first is a claim that various statements in the prosecutor's jury
summation were improper and prejudicial. The only statement to
which an objection was raised below was the prosecutor's
exhortation to the jury that they must "follow [their] oath ...
[and] find the defendant guilty . . . because it is the right thing
to do." Upon objection, the district judge told the jury to
disregard the statement.
Although the statement is fairly tame, we have previously
told prosecutors not to use such language, primarily because it can
shift the emphasis from whether the evidence establishes guilt to
other possible concerns (such as whether the defendant is a
dangerous man whose jailing would be a good thing for the
-8-
community). See United States v. Mandelbaum, 803 F.2d 42, 44 (1st
Cir. 1986). Yet such comments, save in unusual circumstances,
warrant reversal only where prejudice occurred and, given the
curative instruction and the weighty evidence against Grullon, the
result was not due to this misstep by the prosecutor.1
Grullon also presses his argument raised below that the
district judge should have declared a mistrial because certain
"extraneous" material--namely a joke printed from a website making
fun of the legal profession--was found in the jury room after a
verdict was returned. The joke, entitled "Sharks and Lawyers--A
Comparative Study," disparaged lawyers in a variety of ways.
The denial of a mistrial by the trial judge based on
juror misconduct is likely to be reversed only where there is a
"patent abuse of discretion." United States v. Hunnewell, 891 F.2d
955, 961 (1st Cir. 1989). Here, the lawyer joke posed no real
danger of prejudicing the jury against the defendant, having
nothing to do with the issues in the case or any more connection
with one side's counsel than the other's. See United States v.
Boylan, 898 F.2d 230, 261 (1st Cir. 1990)(extraneous material "did
1
Grullon also raises for the first time on appeal objections
to a couple of factual misstatements in the prosecutor's closing
remarks. These errors are even tamer than the statement just
discussed and fall well short of meeting the plain error standard
for reversal applicable where no timely objection was made. See,
e.g., United States v. Van Anh, 523 F.3d 43, 55 (1st Cir. 2008).
-9-
not refer to the case, the trial, the defendants, or their
activities").
Nor was the judge required to hold an evidentiary hearing
to explore the subjective reactions of the jurors. Whether to hold
such a hearing depends on a practical estimate--particularly
whether it is likely to serve any useful purpose. Here, there was
no such likelihood, absent which there are affirmative reasons to
avoid questioning jurors about their thinking. See, e.g., Neron v.
Tierney, 841 F.2d 1197, 1205 (1st Cir. 1988) ("[C]ourts generally
should be hesitant [] to haul jurors in after they have reached a
verdict . . . to probe for potential instances of bias, misconduct,
or extraneous influences.") (internal quotation omitted). So there
was no error at all, let alone a patent abuse of discretion.
The remainder of Grullon's objections are to the voice
identification by the state trooper and to the fact that at
sentencing the drug quantity was found by the trial judge by a
preponderance of the evidence. These claims are without merit and
we mention them only to show that they have not been overlooked.
Affirmed.
-10-