Lead Opinion
Judge CALABRESI concurs in the majority opinion and in a separate concurring opinion.
Defendants-Appellants Yuri Garcia and Francisco Valentin appeal from judgments of conviction entered against them on June 23, 2003, and July 3, 2003, respectively, in the United States District Court for the Southern District of New York (Robert J. Ward, Judge) on charges of conspiracy to distribute or possess with intent to distribute five or more kilograms of cocaine in violation of-21 U.S.C. §§ 841(b)(1)(A), 846, and substantive distribution or possession with intent to distribute of approximately ten kilograms of cocaine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A).
We agree with Garcia that the agent’s opinion testimony at trial as to Garcia’s culpable role in the charged crimes was not properly received. Although the government argues that this testimony was admissible under Federal Rule of Evidence 701 as a lay opinion summary of anticipated evidence, we conclude that the necessary predicates of that rule were not satisfied in this case. Nevertheless, because this evidentiary error was harmless, we affirm so much of Garcia’s judgment of conviction as reflects the jury verdict of guilty.
As for defendants’ sentencing challenges, we conclude that the district court’s Guidelines calculations are supported by a preponderance of the evidence. To the extent Garcia argues otherwise or Valentin claims that his attorney was constitutionally ineffective in failing to raise a preponderance challenge, we reject these arguments as without merit. Insofar as defendants invoke Blakely v. Washington,
I. Background
A. The Charges and Guilty Pleas
On May 2, 2002, a grand jury sitting in the Southern District of New York charged Yuri Garcia and Francisco Valentin, together with Alejandro Tejada, Wal-mer DeArmas, Gabriel Herrera, Jacobo Carmona, and an individual identified only
B. Garcia’s Trial
To prove Garcia’s guilt at trial, the government relied on (1) the testimony of co-defendant Tejada, (2) telephone conversations among the conspirators recorded pursuant to court orders, (3) the surveillance observations of law enforcement officers who participated in the investigation of the charged conspiracy, and (4) physical items seized from the conspirators following their arrests. Because our resolution of this appeal requires harmless error analysis, we discuss this evidence in some detail.
1. The Evidence of Garcia’s Guilt
a. Tejada’s Testimony
Alejandro Tejada testified that he became involved in cocaine trafficking with Francisco Valentin and Yuri Garcia in 2000 at the behest of his long-time friend Valentin. Essentially, Tejada acted as a coux-ier, who, on approximately fifteen to twenty occasions between the summer of 2001 and March 2002, picked up and delivered mul-ti-kilogram quantities of cocaine. Tejada could not always recollect whether it was Valentin or Garcia who gave him the necessary instructions as to each particular transport because the two men were generally both present and participating during these encounters. Nevertheless, Teja-da unequivocally testified that he received directions from each man many times. Tejada stated that when he delivered cocaine, it was Garcia who always inspected the drugs to confirm their quality. Further, Tejada stated that Garcia was in charge of the operation’s finances.
Tejada testified that, on March 18, 2002, he picked up a quantity of cocaine and delivered it to Valentin and Garcia. When the three men unpackaged the drugs, Garcia pronounced them to be “garbage,” Trial Tr. at 241, prompting Valentin to call and complain to his direct supplier, Wal-mer DeArmas. Two days later, on March 20, 2002, as Tejada attempted to return the unsatisfactoi'y drugs to DeArmas, he was arrested by law enforcement authorities who seized the ten kilograms of cocaine then in his possession.
b. The Intercepted Telephone Calls and Surveillance
In a series of recorded telephone conversations played for the jury, Valentin and Garcia discussed their drug operation with each other as well as with fellow conspirators. We focus here on calls relating to the charged March 20, 2002 transaction.
On the morning of March 18, 2002, Valentin and DeArmas discussed an imminent drug transaction and squabbled over
Case agent Paul Klemick of the Drug Enforcement Administration (“DEA”) testified that, at the appointed time, he and other law enforcement officials surveilled the meeting site, which was in the vicinity of the Clearview Expressway and Union Turnpike in Queens, New York. There, Klemick spotted a parked Toyota Camry registered to DeArmas’s home address. He further observed two men in a blue Jeep registered to Sophia Toribio, Garcia’s common-law wife, at the same address as that on a New York State driver’s license in the name of “Yuri Garcia.” For a brief time, agents followed the Jeep, but soon after the vehicle began to engage in “evasive action,” they abandoned the endeavor. Trial Tr. at 114.
Nevertheless, a telephone conversation intercepted shortly after midnight on March 19, 2002, revealed that the planned drug exchange had, in fact, occurred, but not to the satisfaction of the defendants. Valentin was intercepted telling DeArmas, “I am waiting for, eh ... ‘Bonitillo’ is opening one of them.” Gov’t Ex. 108T at 2. A few seconds later, Valentin reported that the cocaine was “like chalk” and asked DeArmas, “How can that be?” Id. at 3. Valentin was then overheard stating to someone in the background, “Yuri, open up another one, so we can take a look,” immediately after which Garcia replied, “This is no good.” Id. at 3-4. As Valentin and DeArmas quarrelled, the former stated, ‘Yuri is now opening another” package. Id. at 5. A moment later Garcia pronounced, “This one is even uglier.” Id. at 6.
In a series of calls on the evening of March 19, 2002, DeArmas, Valentin, and Garcia planned a meeting to discuss the bad batch of cocaine. Initially, Garcia urged DeArmas to meet him in the Bronx, only to change the site in a subsequent call to Dyckman Street off the Henry Hudson Parkway in Manhattan.
Agent Klemick testified that, at the latter site, he saw both the blue Jeep registered to Sophia Toribio and DeArmas’s Toyota. Police Detective RonalcLNieas-tro, also part of the surveillance team, testified that he was able to observe the driver of the Jeep and, based on a license photograph obtained from the New York State Department of Motor Vehicles, identified him as Yuri Garcia. Authorities fol
The following day, March 20, 2002, Garcia and DeArmas were intercepted discussing the return of the unsatisfactory cocaine. Garcia indicated that he would arrange for “Negro” — which Tejada testified was a name by which he was sometimes called, see Trial Tr. at 20 — to deliver the drugs. Gov’t Ex. 112T at 3. In a subsequent conversation, intercepted shortly after 7:00 p.m., DeArmas and Garcia expressed concern that the delivery had not proceeded as planned:
DeArmas: What’s happened?
Garcia: I don’t know yet.
DeArmas: Where are you?
Garcia: I’m up here already.
DeArmas: Should we go up there, to see if maybe the man arrived, and left the stuff there or something?
Garcia: No, I don’t want to take that risk of going inside there.
DeArmas: But we have to find out what’s going on somehow, right?
Garcia: Yes, we have to find out what’s going on ....
Gov’t Ex. 113T at 1-2.
What had happened, of course, was that agents had arrested Tejada in possession of ten kilograms of cocaine outside DeAr-mas’s stash house on East 72nd Street in Manhattan. Later that night, Garcia and DeArmas were overheard discussing Teja-da’s arrest and the need to secure legal representation for him. See Gov’t Ex. 114T.
Thereafter, relations among the conspirators grew strained as DeArmas pressed Garcia and Valentin for payment owed on previous drug deals, while Garcia and Valentin complained about the financial problems resulting from the March 20, 2002 seizure. In a May 2, 2002 conversation, Garcia and Valentin computed their debt to DeArmas as $81,000. On May 5, 2002, Garcia proposed to DeArmas that they meet the following day to discuss this obligation. In anticipation of this meeting, on May 6, 2002, Garcia and Valentin discussed making a partial payment of $9,000 to DeArmas, with Garcia promising Valentin that he would bring “the papers, the list” to the meeting. Gov’t Ex. 126T at 2.
c. The Physical Evidence Seized from Defendants
Det. Nicastro and other agents surv-eilled Garcia on May 6, 2002, observing him pick up Valentin first and then DeAr-mas. Soon thereafter, law enforcement authorities arrested the three men. From the van in which the trio was traveling, officers seized $9,000 in cash; a cellular telephone that had been used to place some of the intercepted calls; and, after a subsequent, more thorough search, “drug records” detailing an $81,000 indebtedness.
2. Agent Klemick’s Opinion Testimony
Preliminary to presenting the above-described evidence for jury review,
Q: Based on your investigation, who or what role was played by Francisco Valentin?
A: Francisco Valentin was basically a partner with Walmer DeArmas who supplied cocaine to DeArmas.
Q: And how were you able to determine this?
A: Through intercepted -
[Defense Counsel]: Your Honor, again, I would just object to the conclusion. I mean, that’s -
[PROSECUTOR]: Your Honor, the question is phrased in terms of based on their investigative work. It is the conclusion that the agent reached in the course of his investigation.
The Court: Overruled.
Q: How were you able to determine this?
A: Through intercepted phone conversations and research of law enforcement database and surveillance.
Id. at 96-97.
The prosecution then proceeded to ask Klemick to testify specifically as to Garcia’s role, prompting an objection, a rephrasing of the question by the court, and the response challenged on this appeal:
Q: In the course of your investigation, were you able to determine what role, if any, Yuri Garcia played in the organization?
A: Yes.
Q: And what role did he play based on your investigation?
[Defense Counsel]: Objection, your Honor, as to role. If the question is: What did he see? What did he do? That’s one thing, but when it talks about role, it opens up a whole other -
The Court: As far as you could determine, what did he do?
Q: That was the question.
A: As far as our investigation determined, he was a partner with Francisco Valentin in receiving cocaine from Walmer DeArmas and he also helped to test the cocaine to make sure that it was a quality product.
Id. at 97-98 (emphasis added).
Klemick subsequently testified, without objection, to a further conclusion reached by him in the course of the conspiracy investigation, specifically, the identity of a person referred to by Valentin in an intercepted call as “Bonitillo.” Klemick stated that, based on “intercepted phone calls, through surveillance and through interviews of cooperating witnesses,” he was able to identify “Bonitillo” as “[t]he defendant, Yuri Garcia.” Id. at 103. When asked if “[b]ased on your participation in
II. Discussion
A. The Admission of Agent Klemick’s Testimony as to Garcia’s Role in the Charged Crimes Was Harmless Error
1. The Standard of Review
We review a district court’s decision to admit evidence for abuse of discretion, see Old Chief v. United States,
In this case, we conclude that Agent Klemick’s testimony as to Garcia’s role in the charged conspiracy was not admissible as lay opinion testimony pursuant to Fed. R.Evid. 701, the sole theory relied on by the government.
2. Klemick’s Testimony as to Garcia’s Role in the Charged Crimes Was Not Admissible as Lay Opinion Testimony Under Rule 701
We begin by identifying the overarching concern raised by Agent Klem-ick’s testimony. By stating that, in his opinion, Garcia was a “partner with Francisco Valentin in receiving cocaine from Walmer DeArmas,” Trial Tr. at 98, Klem-ick was essentially telling the jury that he had concluded that Garcia was guilty of the crimes charged. Although opinion testimony, whether offered by a lay witness pursuant to Fed.R.Evid. 701, or by an expert pursuant to Fed.R.Evid. 702, is not inadmissible simply “because it embraces an ultimate issue to be decided by the trier of fact,” Fed.R.Evid. 704, it is not properly received “merely [to] tell the jury what result to reach,” id., Advisory Committee Notes on 1972 Proposed Rules; see 4 Weinstein’s Federal Evidence § 701.05 (2d ed.2004) (noting that courts should be wary of opinion testimony whose “sole function is to answer the same question that the trier of fact is to consider in its deliberations”). Indeed, the purpose of the foundation requirements of the federal rules governing opinion evidence is to en-
Mindful of this concern, this court has, in two recent cases — both decided after the trial of this case — ruled it error to allow law enforcement witnesses to express opinions as to defendants’ culpability based on the totality of information gathered in the course of their investigations. See United States v. Grinage,
Rule 701 states:
If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
Fed.R.Evid. 701. It is the proponent of lay opinion testimony who must satisfy the rule’s three foundation requirements. See United States v. Grinage,
a. The “Personal Perception” Requirement
Rule 701 requires lay opinion testimony to be based on the witness’s personal perceptions. See Fed.R.Evid. 701(a). The “traditional objective” of the rule is, after all, to afford the trier of fact “an accurate reproduction of the event” at issue. Id., Advisory Committee Notes on 1972 Proposed Rules. Recognizing that eyewitnesses sometimes find it difficult to describe the appearance or relationship of persons, the atmosphere of a place, or the value of an object by reference only to objective facts, the law permits such witnesses to testify to their personal perceptions in the form of inferences or concluso-ry opinions. See id., Advisory Committee Notes on 1972 Proposed Rules and on 2000 Amendments; see also 4 Weinstein’s Federal Evidence § 701.03[4][b] (detailing subjects on which lay opinion testimony has been received). In short, Rule 701 represents no departure from Fed.R.Evid. 602: “A witness may not testify to a matter until evidence is introduced sufficient to support a finding that the witness had personal knowledge of the matter.” Rather, Rule 701 simply recognizes lay opinion as an acceptable “shorthand” for the “rendition of facts that the witness personally perceived.” 4 Weinstein’s Federal Evidence § 701.03[1].
To illustrate: when an undercover agent participates in a hand-to-hand drug exchange with a number of persons, the agent may well testify that, in his opinion, a particular participant, “X,” was the person directing the transaction. Such an opinion is based on his personal perception of such subjective factors as the respect various participants showed “X,” their deference to “X” when he spoke, and their consummation of the deal only upon a subtly signaled approval by “X.” By allowing
In United States v. Grinage, however, this court recently recognized that when an agent relies on the “entirety” or “totality” of information gathered in an investigation to offer a “lay opinion” as to a person’s culpable role in a charged crime, he is not presenting the jury with the unique insights of an eyewitness’s personal perceptions.
Perhaps anticipating Grinage, the government, in its brief, argued that, because the question eliciting Klemick’s opinion as to Garcia’s role was framed in the second person, “[i]n the course of your investigation, were you able to determine what role, if any, Yuri Garcia, played in the organization,” Trial Tr. at 97 (emphasis added), and because an interjecting question by the court was similarly framed, “[a]s far as you could determine, what did [Garcia] do,” id. at 98 (emphasis added), we can reasonably infer that Klemick’s response was not based on the totality of the agents’ investigation but only on the witness’s personal perceptions. In fact, the record does not support this conclusion.
Klemick’s response indicates that his opinion was not limited to his personal perceptions but drew on the total information developed by all the officials who participated in the investigation leading to Garcia’s arrest: “As far as our investigation determined, [Garcia] was a partner with Francisco Valentin in receiving cocaine ....” Id. (emphasis added). Indeed, that conclusion is reinforced by placing the quoted language in context. The inquiry as to persons’ roles was immediately preceded by a series of questions about the investigation, to which Klemick routinely responded by reference to the collaborative efforts of a team of law enforcement officers. Asked to “describe some of the investigative techniques that you used in carrying out the investigation,” Klemick replied, “We used wiretaps. We did surveillance. We researched law enforcement databases. We interviewed cooperators.” Id. at 92 (emphasis added). He similarly described the procurement of wiretap evidence as a collective task: “We submitted an affidavit to the Court”; “we were permitted to intercept conversations for a period of 30 days”; “we’d ... apply to renew for another 30 days.” Id. at 93.
That Klemick’s opinion was so based is hardly surprising. It is entirely reasonable and responsible for law enforcement officers, in performing their day-to-day duties, to rely on the collective knowledge of their colleagues. The law recognizes and approves this reality in the standards it applies to probable cause challenges. See United States v. Cruz,
b. The “Helpful to the Jury” Requirement
A lay opinion may be received in evidence only if it is “helpful” to the jury’s “clear understanding of the witness’ testimony or the determination of a fact in issue.” Fed.R.Evid. 701(b). The government submits that Klemick’s testimony satisfied this requirement because “it provided a simple summary for the jury of what Klemick saw Garcia do during the surveillance and what Klemick heard Garcia and others say on the wiretaps.” Ap-pellee’s Br. at 27-28. We reject this argument for several reasons.
First, as already observed, Agent Klem-ick’s opinion was not limited to a summary of his own observations.
Second, Klemick’s opinion did more than provide a “summary” of Garcia’s words and actions^by whomever they were observed. It told the jury that Klemick, an experienced DEA agent, had determined, based on the total investigation of the charged crimes, that Garcia was a culpable member of the conspiracy. Such an opinion cannot be equated with that of an undercover officer who, in testifying to his
Even if Klemick’s opinion as to Garcia’s culpability could be viewed as a summary of the evidence that was subsequently admitted at trial, there is a third reason why it fails to qualify as “helpful” under Rule 701(b): it is generally viewed as “improper ... for a party to open its case with an overview witness who summarizes evidence that has not yet been presented to the jury.” 6 Weinstein’s Federal Evidence § 1006.04[3], Indeed, as two of our sister circuits have observed, this practice is particularly problematic in criminal cases because it allows “the government to paint a picture of guilt before the [supporting] evidence has been introduced.” United States v. Griffin,
The law already provides an adequate vehicle for the government to “help” the jury gain an overview of anticipated evidence as well as a preview of its theory of each defendant’s culpability: the opening statement. In this case, the prosecution, in its opening remarks, repeatedly identified Garcia as a “partner” with Francisco Valentin in the acquisition and distribution of kilogram quantities of cocaine, with Garcia having particular responsibility for ensuring the quality of their illicit product.
For all these reasons, we reject the government’s argument that a case agent’s opinion as to a defendant’s culpable role provides a jury with a helpful summary overview of the evidence.
c. The “Not Based on Specialized Knowledge” Requirement
In 2001, Rule 701 was amended to provide that testimony cannot be received as lay opinion if it is based on scientific, technical, or other specialized knowledge. See Fed.R.Evid. 701(c). Rather, a lay opinion must be the product of reasoning processes familiar to the average person in everyday life. See id., Advisory Committee Notes to 2000 Amendments (explaining that “lay testimony ‘results from a process of reasoning familiar in everyday life,’ while expert testimony ‘results from a process of reasoning which can be mastered only by specialists in the field’ ” (quoting State v. Brown,
The purpose of this final foundation requirement is to prevent a party from conflating expert and lay opinion testimony thereby conferring an aura of expertise on a witness without satisfying the reliability standard for expert testimony set forth in Rule 702 and the pre-trial disclosure requirements set forth in Fed. R.Crim.P. 16 and Fed.R.Civ.P. 26. See Fed.R.Evid. 701, Advisory Committee Notes on 2000 Amendments; see also Bank of China v. NBM LLC,
Klemick testified that his opinion as to the various conspirators’ roles was based on “intercepted phone conversations and research of law enforcement databases and surveillance.” Id. Focusing simply on the wire intercepts, we observe that Klemick’s review of these conversations was hardly that of an average person. To highlight this very fact for the jury, the government specifically elicited that Klemick had reviewed thousands of intercepted conversations in the course of various narcotics investigations, see id. at 99, and that he had had the benefit of cooperating witnesses’ insights on some of these occasions, see id. at 100. Based on this experience, certainly outside the ken of the average person, Klemick informed the jury that he did not expect to overhear explicit references to drugs on the intercepted tapes; his experience taught him that drug dealers generally used code words when referring to their illicit transactions. See id. at 101. Such expert testimony is permissible “to explain both the operations of drug dealers and the meaning of coded conversations about drugs.” United States v. Dukagjini,
In sum, when Klemick concluded from wiretaps, database information, and surveillance observations, that Garcia was a “partner” with Valentin in receiving cocaine from DeArmas, and that his respon
3. The Admission of Klemick’s Challenged Opinion Testimony Was Harmless
Although Klemick’s challenged opinion testimony was inadmissible under Rule 701, we conclude that this single evi-dentiary error had no “substantial and injurious effect or influence” on the jury verdict and, thus, was harmless. United States v. Dukagjini,
(1)the overall strength of the prosecution’s case;
(2) the prosecutor’s conduct with respect to the improperly admitted evidence;
(3) the importance of the wrongly admitted testimony; and
(4) whether such evidence was cumulative of other properly admitted evidence.
Zappulla v. New York,
We begin with the second and third factors, which we consider together. For reasons already discussed in explaining why Klemick’s opinion testimony was not admissible, we recognize the potential importance of having a case agent ascribe a culpable role to a defendant on trial. In this case, however, that harmful potential was minimized by the fact that the prosecution, after eliciting the opinion, never referenced it again throughout the case. Specifically, it did not mention, much less make improper use of, Klemick’s challenged opinion in summation. Instead, in urging a guilty verdict, the prosecution focused the jury’s attention only on the extensive admissible evidence supporting that result. Thus, in this case, both the
Our conclusion is further compelled by the first and fourth factors, which we also review together. As our discussion of the facts demonstrates, the admissible evidence of Garcia’s guilt was overwhelming. Alejandro Tejada, an admitted member of the cocaine conspiracy, provided direct, detailed evidence implicating Garcia in the charged crimes. Cf. United States v. Grinage,
In urging a contrary conclusion, Garcia argues that Klemick’s opinion improperly bolstered Tejada’s credibility. That concern would warrant our attention had the government ever used Klemick’s testimony for this purpose in its summation but, as already noted, the government made no reference whatsoever to Klemick’s opinion after eliciting it. In any event, Garcia’s challenge to Tejada’s credibility, based largely on the argument that Tejada’s cooperation agreement and sentencing exposure gave him a motive falsely to implicate Garcia, must be viewed as relatively weak in light of the substantial corroboration provided by the intercepted telephone conversations,
Particularly incriminating was a conversation recorded on the night of an anticipated drug exchange in which Garcia is overheard actually opening a package— confirmed by Tejada’s testimony and the subsequent seizure to be cocaine — and pronouncing its quality unsatisfactory. Similarly self-inculpatory was Garcia’s ensuing conversation with DeArmas arranging for Tejada to return the inferior drugs on the very day that agents arrested Teja-da in possession of ten kilograms of cocaine, followed later that evening by Garcia’s recorded expression of concern that the planned delivery had not taken place as scheduled. Garcia’s guilt was further convincingly demonstrated by his recorded discussions with Valentin of their $81,000 indebtedness to DeArmas and a proposed preliminary payment of $9,000, both of which were corroborated by seizures of money and records from Garcia’s van following the three men’s arrests.
In sum, the totality of the admissible evidence so strongly established Garcia’s
B. Although Defendants’ Cases Must Be Remanded for Further Sentencing Proceedings in Light of Booker and Crosby, Defendants’ Claim that Their Guidelines Calculations Are Not Supported by Even a Preponderance of the Evidence Is Without Merit
In appealing their incarceratory sentences, Garcia and Valentin both submit that the district court’s findings of fact in calculating their Sentencing Guidelines ranges were not supported by a preponderance of the evidence.
After United States v. Booker, 543 U.S. —,
We write simply to explain why we follow that practice in this case, even though the death of the original sentencing judge will necessarily require reassignment of the case on remand to a different district judge.
1. A Preponderance of the Evidence Supports the District Court’s Guidelines Calculations
a. The Guidelines as Applied to Defendants
The jury verdict against Garcia expressly found, and Valentin in his plea allocution
Relying on a total offense level of 40 and a criminal history category of I, the district court calculated Garcia’s Guidelines sentencing range at 292 to 365 months. Rejecting a downward departure motion based on extraordinary family circumstances, the court sentenced Garcia to concurrent 292-month prison terms, representing the low end of his sentencing range. Because the court awarded Valentin three, levels’ consideration for acceptance of responsibility, see U.S.S.G. § 3E1.1, it calculated his total offense level at 37, which, with a criminal history category of I, resulted in a Guidelines range of 210 to 262 months. Rejecting a suggestion that the conditions of Valentin’s pre-sen-tence confinement might warrant a downward departure, the district court sentenced Valentin to concurrent terms of 210-months’ incarceration, the low end of his Guidelines range.
b. The Standard of Review
We have long reviewed a district court’s findings of fact as they apply to sentencing enhancements only for clear error. See United States v. Franklyn,
Even where no statute addresses the standard of review, the Supreme Court has approved the clearly erroneous standard for findings of fact in criminal cases on issues other than those that determine guilt. See Hernandez v. New York,
This is true notwithstanding the Supreme Court’s articulation in Booker of a reasonableness standard of review for federal sentences challenged on direct appeal. See United States v. Booker,
Of course, our present task is not to review the defendants’ sentences for reasonableness. Under the framework established by Crosby, that inquiry arises after the district court either has determined that the defendant does not need to be resentenced or has imposed a new sentence. We are not yet at that stage. At present, we consider whether the district court’s findings of fact were clearly erroneous because the district court, on remand, remains under an obligation to consider the Guidelines, and our resolution of defendants’ Guidelines objections “will assist the district court in fulfilling that obligation.” United States v. Maloney,
To reject a finding of fact as clearly erroneous, we must, upon review of the entire record, be “left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co.,
c. The Drug Quantity Calculation
Valentin’s contention that a preponderance of the evidence did not support the district court’s finding as to drug quantity is plainly belied by the record. Tejada testified that on fifteen to twenty occasions between the summer of 2001 and March 2002, he transported cocaine for the defendants in amounts ranging from ten to forty kilograms per trip, with one particularly large transport involving seventy kilograms of cocaine. As the district court observed in crediting this testimony, even if only ten of Tejada’s transports had involved ten kilograms of cocaine and one transport had involved seventy kilograms, that by itself would yield a total drug
Accordingly, Valentin’s preponderance challenge to the drug quantity calculation is without merit.
d. The Defendants’ Role Enhancements
Both defendants submit that a preponderance of the evidence did not support the district court’s finding that they merited supervisory enhancements to their Guidelines ranges pursuant to U.S.S.G. § 3Bl.l(c). They are wrong.
Section 3Bl.l(c) provides for a two-level enhancement if a defendant’s role in the offense of conviction was that of “an organizer, leader, manager, or supervisor.” As this court has repeatedly recognized, “[a] defendant may properly be considered a manager or supervisor if he exercised some degree of control over others involved in the commission of the offense ... or played a significant role in the decision to recruit or to supervise lower-level participants.” United States v. Burgos,
Both direct and circumstantial evidence supported the district court’s findings as to defendants’ roles. Tejada testified that it was Valentin who recruited him as a drug courier for the conspiracy, conduct that, by itself, could support Valentin’s § 3Bl.l(e) enhancement. See United States v. Greenfield,
Q: Were there times when Yuri Garcia provided you with direction about where to take the cocaine to?
A: Many times.
Q: And were there times when Francisco Valentin instructed you where to take the cocaine to?
A: Yes.
Id. Similarly, each defendant supervised Tejada’s transportation of drug proceeds:
Q: And who provided you with your instructions regarding the collection of these payments?
A: Well, it was either Francisco or Yuri.
Q: Were there occasions when it was Francisco Valentin?
A: Yes.
Q: And were there occasions when it was Yuri Garcia?
A: Yes.
Id. at 220.
Garcia submits that he and Tejada were Valentin’s subordinates in the charged conspiracy. This leaves open, however, the question of whether Garcia nevertheless supervised Tejada. As we have previously recognized, more than one person at more than one level of a conspiracy may act as a supervisor. See United States v. Si Lu Tian,
For all these reasons, we conclude that there is no merit to defendants’ preponderance challenge to the district court’s findings as to role.
2. The Crosby Remand in This Case
a. Crosby’s Method for Conclusively Resolving the Final Tim Prongs of Plain Error Review
In United States v. Crosby,
the errors in the procedure for selecting the original sentence discussed in this opinion would be harmless, and not prejudicial under plain error analysis, if the [district] judge decides on remand, in full compliance with now applicable requirements, that under the post-Booker/Fanfan regime the sentence would have been essentially the same as originally imposed. Conversely, a district judge’s decision that the original sentence would have differed in a nontrivial manner from that imposed will demonstrate that the error in imposing the original sentence was harmful and satisfies plain error analysis.
Id. at 118; accord United States v. Williams,
As Crosby recognized, however, the effect of a plain Booker error need not remain indeterminate because “[w]e can ask the sentencing judge” what effect, if any, the error had on sentence. United States v. Williams,
In this case, no less than in Crosby, plain error analysis depends on the identification of a material difference between the defendants’ challenged sentences and those that would have been imposed with the benefit of Booker. As in Crosby, this court cannot confidently resolve this issue on the record before us because “as a reviewing court we do not know what the sentence would have been absent the error.” Id. at 458. Accordingly, a Crosby remand for a conclusive comparative sentence inquiry appears warranted. The question we confront is whether such a remand should be ordered where, as in this case, the original sentencing judge is no longer available to make the necessary comparison. Because we conclude that the sentencing comparison identified by Crosby as determinative of plain error can reliably be performed by a district judge other than the one who imposed the original sentence, we hold that a Crosby remand is appropriate in this case.
b. Ordering Crosby Remands in Cases Where the Original Sentencing Judge Is No Longer Available
We preliminarily acknowledge that, in United States v. Williams, this court alluded to the availability of the “sentencing judge” as pertinent to Crosby’s remand procedure: “the availability of the sentencing judge to advise us made it appropriate to learn authoritatively what would have happened, absent error, rather than make a wrong guess or place on the defendant the risk of serving extra years because he could not prove what the right guess should be.” Id. at 460-61; see also id. at 459 (rejecting suggestion that appellate court would have to speculate to determine what sentence would have been imposed absent Sixth Amendment error: “We can ask the sentencing judge.”). We do not, however, construe this language to hold that Crosby remands are warranted only when further proceedings in the district court will be handled by the original sentencing judge. Rather, the quoted language simply recognizes the practical reality that most Crosby remands, including those in Crosby and Williams, will likely be addressed by the original sentencing judge.
First, comparative sentence review will frequently require expansion of the record, so that the parties can present “aggravating” and “mitigating circumstances that existed at the time [of the original sentence] but were not available for consideration under the mandatory Guidelines regime.” United States v. Crosby,
An appellate court, confined to the record of the prior sentencing, would often have difficulty if it tried to estimate whether the district court, absent a sentencing error, would have imposed a materially different sentence. The question can be better answered on a remand, at which the district court would be able to receive and evaluate submissions from the parties of circumstances, existing at the time of the original sentencing, that might have materially altered the original sentence had the Guidelines only been advisory.
United States v. Williams,
Undoubtedly, the original sentencing judge, already familiar with the case, can most efficiently supervise any record expansion necessary to comparative sentence analysis. But the task of record development is so fundamental to the work of the district court that it certainly falls within the capability of any district judge who becomes familiar with the prior record. In sum, because an expanded record of the circumstances existing at the time of the original sentencing may well be critical to a reliable comparative sentence assessment, this factor weighs heavily in favor of Crosby remands even when the unavailability of the original sentencing judge requires reassignment of the case to another district judge.
Second, Crosby recognized that district judges’ familiarity with the sentencing process is necessarily more extensive and direct than that of appellate judges. See United States v. Crosby,
Here again, we recognize that the original sentencing judge’s familiarity with a case would allow him or her to make this comparative assessment most easily and reliably. But where that judge is no longer available, the district court’s ability to provide a reliable response to a Crosby remand does not abruptly cease. The judgment appealed from, after all, is that of the district court, not simply that of a particular judge. Thus, the comparative sentence inquiry might properly be viewed as between the court’s challenged sentence
This is not to suggest that district judges are “ ‘fungible’ they certainly are not. See Laird v. Tatum,
It may be useful to note that in making this determination, we do not expect a successor judge to do the impossible, i.e., determine what sentence the original judge would have imposed on behalf of the court with a correct understanding of the law and a fully developed record. Instead, on reassignment, a district judge should consider what sentence he or she would have imposed on behalf of the court with the benefit of Booker and a full record.
It is, of course, impossible to know whether a successor judge’s comparative sentence analysis will be identical in all respects to that which the original sentencing judge would have reached, were he available. That, however, is no reason to abandon Crosby remands in cases requiring reassignment. As already noted, the comparative analysis necessary to determine whether a defendant’s substantial rights have been affected by a sentence imposed in violation of the Sixth Amendment is between two sentences of the district court, and that court can reliably respond to that inquiry through the voice of more than one judge. A defendant who asserts plain error in a pre-Booker sentence is certainly entitled to have a competent judge, familiar with his case, determine if the error affected substantial rights. But he cannot demand that only a “particular judge ... aet[ ] for the court.” United States v. Colon-Munoz,
Our concurring colleague does not share our confidence in the ability of a successor judge reliably to respond to a Crosby inquiry. Accordingly, he dismisses the analysis prompting our Crosby remand in this case as dieta. He explains that he nevertheless joins in the judgment only because he expects the remand in this case to be “identical, in its effects,” to resentencing. Infra at 231. He further attempts to reserve for a “later panel” the question whether plain error analysis, in fact, requires a new sentence. Id. at 232 & n. 2. Because we owe a duty to district courts and the parties to make our rulings as clear as possible, we here state that it is not the opinion of this court that a Crosby remand assigned to a new judge must, “in effect,” be a resentencing. To the contrary, by ordering a Crosby remand, we specifically hold that no resentencing is necessary if the district court, in response to our comparative sentencing inquiry, reports no non-trivial sentencing discrepancy. See United States v. Crosby,
As we discussed earlier, supra at 225-26, because a Crosby remand ensures that the effect of a Booker sentencing error is not indeterminate, we avoid the need to resolve defendants’ plain error challenge by reference to the burdens of persuasion assigned by traditional and modified standards of review. Thus, once we hold, as we do today, that a successor judge can reliably respond to Crosby’s comparative sentencing inquiry, there is no more need for us to reference the burdens of persuasion assigned by the different standards of plain error review than there is when a Crosby remand is handled by the original sentencing judge. In any event, we expect no “later panel” to reconsider this issue on any appeal from the remand proceedings. As we clarified in United States v. Williams,
Having thus clarified that the Crosby remand ordered in this case is not a resentencing, we note that there is one respect in which the comparative sentence inquiry by a successor judge may differ from that of the original sentencing judge: while we leave it to the discretion of the latter judge whether to produce a defendant for the necessary sentencing comparison, we require a newly assigned judge to do so. We impose this requirement not because a Crosby remand to a new judge is effectively a resentencing, as our concurring colleague suggests, but because a newly assigned judge must become fully familiar with the prior proceedings in order to make a reliable sentencing, comparison, and the judge cannot do so without actually seeing the defendant in open court and affording him an opportunity to be heard. As we know from our work as appellate judges, human insights important to sentencing cannot be gleaned simply from a review of a cold record. Further, although the production of a defendant may not be essential to the perceived integrity of a Crosby remand handled by the original sentencing judge, see United States v. Crosby,
In sum, although a Crosby remand may operate less efficiently when the original sentencing judge is no longer available, we
III. Conclusion
To summarize, we conclude that the testimony of a government agent assigning defendant Garcia a culpable role in the charged conspiracy was not admissible as a lay summary opinion of anticipated evidence under Fed.R.Evid. 701, but that defendant is not entitled to a new trial because the error was harmless.
We further conclude that defendants’ in-carceratory sentences were based on Guidelines calculations that, although supported by a preponderance of the evidence, violated the Sixth Amendment right to trial by jury but that plain error review cannot be concluded without further proceedings in the district court.
Accordingly, the judgments of the district court are AffiRmed insofar as they reflect defendants’ guilt on the crimes of conviction and the calculation of their Sentencing Guidelines by a preponderance of the evidence. The judgments are RemaNDed for further sentencing proceedings in conformity with this court’s decision today and in United States v. Crosby,
Notes
. Although the enhanced sentence provision of § 841(b)(1)(A) is triggered by trafficking in amounts of five kilograms or more of cocaine, the substantive count of the indictment specifically charged ten kilograms or more of cocaine.
. Prior to filing, this opinion has been circulated to all members of this Court. See, e.g., United States v. Crosby,
. Although the defense questioned the witness’s qualifications to make a voice identification, the challenge appears to have been little more than a distraction. The prosecution did not present the interpreter as an expert in voice identification, but as a lay witness who had acquired considerable familiarity with the intercepted voices from her work monitoring the wiretap. See Fed. R.Evid. 701. Indeed, the prosecution invited the jury to make its own comparison of Garcia's voice exemplar with the voice it contended was his on the intercepted tapes. See Trial Tr. at 385-86, 422-24. In any event, Garcia's identity as the speaker on a number of the intercepted calls could not seriously be disputed in light of Tejada's testimony as well as surveillance observations, discussed infra, which placed Garcia (or a vehicle linked to him) at specific sites soon after recorded calls in which the speaker alleged to be Garcia agreed to meet at the same locations.
. The intercepted telephone calls and translated transcripts were, in fact, authenticated and received in evidence before Agent Klemick testified but not presented for jury review until after Klemick offered the challenged opinion testimony.
. The government does not contend that the challenged testimony was admissible as an expert opinion pursuant to Fed.R.Evid. 702.
. We note that, at oral argument, the government abandoned a challenge raised in its appellate brief to the specificity of Garcia’s objection to Klemick's testimony. Thus, we do not address that issue in this opinion. At the sarne time, the government virtually conceded the inadmissibility of the challenged testimony, devoting most of its time to arguing harmlessness. While we agree with the latter argument, we think it useful to discuss the specific reasons why Klemick's challenged testimony was not admissible as lay opinion.
. With respect to the wiretap evidence, we note that most of the intercepted conversations were in Spanish. Because no evidence was adduced indicating Klemick’s fluency in this language, it appears that any opinions he formed from his review of the recorded conversations could not have been based on his personal perceptions of the participants' discussions but were necessarily informed by what he was told by Spanish-speaking monitors and translators.
. The First Circuit, in United States v. Cunningham,
. To the extent the government relies on cases that pre-date this 2000 amendment to support its argument that a law enforcement officer may offer opinion testimony as to the criminality of actions witnessed by him, we do not find such cases particularly useful to our analysis.
. Although Agent Klemick was not specifically qualified as an expert in narcotics trafficking, no objection was raised to him testifying to tire general use of drug codes or the significance of certain drug quantities and prices, likely because neither the agent's expertise in this area nor his conclusions were in dispute.
. Garcia submits that the admission of Klemick's overview testimony was a "structural error.” Appellant Garcia’s Br. at 21. He is wrong. The erroneous admission of evidence is not a structural error, because " 'evidence, ... unlike the presence of counsel, is not a factor that goes to the very heart — the integrity — of the adversary process.' " Wray v. Johnson,
. Significantly, Garcia raises no Rule 701 challenge to the agents' testimony with respect to these conversations. Cf. United States v. Grinage,
. Garcia, who preserved this claim below, presents it directly on appeal. Valentin, on the other hand, presents the claim indirectly, arguing that his former counsel's failure to challenge the sufficiency of the evidence supporting various Guidelines calculations constituted constitutionally ineffective representation.
As a general rule, we will not entertain ineffective assistance claims on direct appeal, see Massaro v. United States,
. The Honorable Robert J. Ward, who for more than thirty years served with distinction on the United States District Court for the Southern District of New York, died on August 5, 2003.
. Judicial authority to find facts relevant to sentencing by a preponderance of the evidence survives Booker. As we explained in Crosby, after Booker, district courts are still statutorily obliged to "consider” the Guidelines,
. Where a defendant asserts that a district court's factual findings cannot, as a matter of law, support a particular Guidelines enhancement, we conduct de novo review of that legal question. See United States v. Sash,
. In reaffirming Crosby's remand procedure, Williams detailed how this process permits an appellate court to resolve the third and fourth prongs of plain error analysis:
[0]ur remand demonstrated our decision that the view of the sentencing judge as to whether the sentence would have been materially different would establish to our satisfaction that the third Olano prong was met, or as we put it, would "complete[]” the plain error analysis. See Crosby, 397 F.3d at 118 . The remand also implicitly indicated our view that the sentencing judge’s conclusion that a materially different sentence would have been imposed would establish to our satisfaction that the fourth Olano prong was met, since leaving in place an error-infected sentence that would have been materially different absent error and that could be readily corrected would "seriously affectf] the fairness, integrity or public reputation of judicial proceedings.” Olano,507 U.S. at 736 ,113 S.Ct. 1770 (internal quotation marks omitted).
United States v. Williams,
We could have required the case to be restored to our jurisdiction immediately after the district court decided whether the original sentence would have been materially different, and then affirmed whenever the district judge’s answer was "no” or remanded for resentencing whenever the district judge’s answer was "yes.” That procedure would have precipitated needless yo-yoing between the appellate court and the district court simply to enable the appellate court to announce the outcome of applying the third and fourth Olano factors in each case. It was more efficient to announce ahead of time that if the district judge's answer was "yes,” that decision would, in our assessment, satisfy the third and fourth Olano factors.
Id. at 461 n. 15.
. The division of business among judges on a particular district court is a matter generally addressed by local rule. See 18 U.S.C. § 137.
. In reviewing the prior sentencing record, a successor judge should nevertheless carefully consider any statements made by the original sentencing judge indicating an inclination to show greater leniency or severity but for the Guidelines mandates. In this case, for example, Judge Ward stated that, although Garcia’s domestic situation was sympathetic, any downward departure would be an "empty gesture" in light of circuit precedent narrowly interpreting the permissible scope of a departure for extraordinary family circumstances. Garcia Sentencing Tr. at 36. This is not to suggest that the successor judge is now bound tó resolve the Crosby remand in accordance with these statements. It remains impossible to discern exactly what sentence Judge Ward would have imposed had he anticipated Booker's transformation of the Guidelines from mandatory to advisory with a continuing obligation to "consider” the Guidelines and their policy statements. 18 U.S.C. § 3553(a)(4)-(5). Rather, the successor judge should consider Judge Ward's observations together with all other relevant factors and then decide what sentence the successor judge would have imposed with the benefit of Booker and a fully developed record.
Concurrence Opinion
concurring.
I entirely agree with the result reached by the majority, and I agree with virtually all of its reasoning (that is, all but some of the discussion in Part II.B.2(b)). I do not, however, agree with the panel’s equation of a remand to a new judge — when the original sentencing judge is no longer available — to a normal Crosby remand. It seems to me impossible for a new judge to give the kind of assurance — that the sentence imposed originally is the one that the no-longer-available judge would have imposed after Booker — that we have when the original judge has reconsidered his or her pre-Booker sentence. Courts may all be courts, but sentencing is a matter of considerable discretion, and I simply do not understand how a different human being can say for sure that the original sentence would have been essentially the same had Booker already been decided.
I concur in the judgment because, in this case, our mandate remanding to a new judge, who is required to have the defendant appear before him or her during a Crosby reconsideration, is identical, in its effects, to a remand for a .post-Booker new sentence. In other words, given the panel’s requirement that the defendant be present, there is — on the facts of this case as far as we know them — no difference between what would happen were the old sentence reconfirmed or a new sentence imposed.
That being so, I do not quite understand the majority’s determination to categorize what it has ordered as a Crosby “comparative sentencing inquiry.” Ante, at 229.
. It seems to me that — regardless of whether we describe what we are doing as a Crosby remand or a remand for a new sentence (which may, however, mirror the old sentence) — what we have today mandated may, depending on the new judge's view of the case, result in an identical sentence as before, or it may not. And what we call our remand will make no difference to that judge’s view.
. The majority responds to my concurrence by underlining that it intends its remand — to a new judge for a "Crosby comparative sentence inquiry” in the presence of the defendant — to constitute a holding that such an inquiry is not a resentencing. And, having underlined its intention, the majority then reemphasizes it. I do not doubt what the majority wishes to do. But calling that which is not necessary to decide the case' a "holding” does not make it any less dicta. And insisting that it is a holding simply makes the dicta more emphatic.
Emphatic dicta will and should be afforded more weight by later panels than casual dicta. But especially given our circuit's long-standing practice a) of adhering strictly to holdings of prior panels, and b) of reviewing such holdings en banc only exceedingly rarely, see Jon O. Newman, Foreword: In Banc Practice in the Second Circuit, 1989-93, 60 Brook. L.Rev. 491 (1994), it is not and cannot be binding. Holdings — what is necessary to a decision — are binding. Dicta — no matter how strong or how characterized — are not.
. The issue — of a new sentence versus mere reconsideration' — might be outcome-determinative, for example, if one of the parties sought to introduce evidence, relevant to sentencing, which involved events that occurred after the original sentence was imposed. And, in such a case the question of whether a new sentence was required might very well depend on whether our modified plain error rule survived Johnson v. United States,