Case Information
*3
BOUDIN, Chief Judge. This set of appeals grows out of an indictment alleging that the appellants, along with 76 others, were part of a sprawling drug smuggling and distribution network in southwest Puerto Rico between 1994 and 1997. The two-count indictment charged Angela Ayala-Martinez ("Ayala") and Manuel Perez-Colon ("Perez") with conspiracy to possess and distribute multi-kilogram amounts of cocaine, heroin, and marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 846 (1994) and conspiracy to engage in illegal financial transactions involving the drug proceeds in violation of 18 U.S.C. §§ 1956(a)(1) and 1957 (1994). Perez's money laundering charge under 18 U.S.C. § 1957, but not § 1956(a)(1), was later dropped. Appellant Marcos Martinez-Medina ("Martinez") was charged only with participating in the drug conspiracy.
The three appellants were tried along with four other co-defendants: Manuel Garcia-Torres ("Manuel"), his brother Andres Garcia-Torres ("Andres"), Walter Batiz, and Deri Ventura. The evidence presented during the forty-day trial was extensive, [1] and featured the testimony of several indicted co-conspirators *4 who agreed to cooperate with the government in exchange for leniency.
In brief, it showed that in 1995, Ayala obtained a contact with a Colombian dealer, Jorge Alicea-Serrano (a/k/a "Jockey"), to import large quantities of cocaine into Puerto Rico. The drugs were delivered by air and by sea, and Ayala hired others--including Andres Garcia, Perez, Batiz, and Ventura--to retrieve them for her.
By virtue of her connection to Jockey, Ayala rose from a small-time drug dealer to a major supplier to various drug distribution points at housing projects in the city of Ponce. Among them were drug points at Los Lirios Del Sur and Santiago Iglesias, owned by Perez; La Atocha and Tibes, owned by Edwin Melendez Negron (a/k/a "Danny Gongolon"); and La Cantera, owned by the Garcias' older brother Tommy Garcia-Torres until his death in August 1995, when it was inherited by Manuel Garcia and Ventura. Batiz worked for Garcia and Ventura cutting drugs at La Cantera.
Disputes at these drug points led to several violent killings, which were not charged as crimes but were important to the government's case both as conspiratorial acts and factors in sentencing. According to the testimony of a cooperating witness named Daniel Sanchez-Ortiz, in or around 1996 Perez ordered the *5 murder of Sol Garcia, owner of a competing drug point at Los Lirios del Sur that was threatening Perez's sales.
At La Cantera, an internecine feud erupted in 1994 when Tommy Garcia fired "Gerardito", his brother-in-law and drug runner, because he allegedly stole $35,000 to $40,000 in drug proceeds. After being ostracized from La Cantera, Gerardito and his brother Nelsito began associating with Michael Vazquez and his father Eddie; the Vazquezes owned a jewelry store and had no demonstrated connection to the drug trade but had weapons and were willing to help Gerardito seek revenge against the Garcias. A war soon erupted between the Garcias and their allies-- including Ventura, Ayala, and Gongolon--and Gerardito and his faction--which included Nelsito, the Vazquezes, and the Vazquezes' jewelry store employee, Jose Negron-Santiago (a/k/a "Bejumen").
A series of violent incidents ensued between the two factions. In 1995 Tommy Garcia and his trigger man, Abraham Borgos Santiago, were killed in separate incidents, as was "Gordo", a friend of Gerardito and Nelsito. Each side pinned blame on the other. In 1996, Eddie Vazquez shot and wounded Danny Gongolon. On numerous occasions throughout this period, the Garcias tried to find and kill Gerardito, Nelsito, the Vazquezes, and Bejumen.
On February 14, 1997, Bejumen and his wife Rosemarie were shot and killed in their car. Gamaliel Goglas-Valentin, who worked part time for the Garcias at La Cantera and also helped them store guns, testified that Andres, Manuel, and Marcos Martinez drove into the auto shop where he was working and celebrated openly that they had "finally" killed Bejumen. As Andres described it, the three of them ambushed Bejumen's car; Martinez and Andres then opened the door and shot Bejumen and his wife repeatedly at close range.
Four days later, Ayala, Manuel, Danny Gongolon, and Ventura paid $20,000 to hire kidnappers to pose as policeman and "arrest" Michael Vazquez. Although the testimony of various witnesses is somewhat unclear as to the precise chain of events, it appears that the kidnappers handed Michael Vazquez over to associates of the Garcia group--including Manuel and Andres Garcia, Gongolon, Ventura, and Batiz--who drove away with him and killed him. They also found and shot Eddie Vazquez. Ayala was described as celebrating when she was told that the plan had been successfully executed.
The appellants were convicted as charged. Ayala and Perez were sentenced to life imprisonment on the drug conspiracy count and 20 years' imprisonment on the money laundering count, *7 to be served concurrently; Martinez was sentenced to 405 months' imprisonment. These appeals ensued.
The appellants' various claims can be grouped into several categories: sufficiency of the evidence as to certain counts, admissibility of specific evidence, alleged prosecutorial misconduct, improper jury instructions, sentencing rulings, and new trial claims based on new or withheld evidence. We affirm the appellants' convictions and sentences in all respects.
I. SUFFICIENCY OF THE EVIDENCE Single versus multiple conspiracies. All three appellants argue that the evidence was insufficient to support aspects of their convictions. The first sufficiency issue, raised by Ayala and Perez, is the frequently raised but often misunderstood claim that a single conspiracy found by the jury was in fact multiple, independent conspiracies. [2] If there was such "variance" between the indictment and the proof at trial, it might be grounds for reversal if it substantially prejudiced the defendants' rights by, for example, allowing the jury to transfer evidence of one conspiracy against defendants involved *8 in another. Kotteakos v. United States, 328 U.S. 750, 774 (1946); United States v. Glenn, 828 F.2d 855, 858 (1st Cir. 1987); see generally 4 LaFave, Israel & King, Criminal Procedure § 19.6 (2d ed. 1999).
Appellants make two different so-called "variance"
arguments. The first focuses on the possibility that some
people charged in the indictment but not tried together with the
defendants might not have been implicated in the same
conspiracy--in particular, other drug point owners whose
association with Ayala and the Garcias may have been more
tangential. But the government need not show that every person
indicted was a member of the conspiracy. United States v.
Townsend, 924 F.2d 1385, 1389 (7th Cir. 1991). At most,
questions may arise whether the introduction of evidence as to
these other individuals' actions was unfairly prejudicial to the
defendants. United States v. Mojica,
Appellants' main "variance" claim is that not all of
those tried together were engaged in the single charged
conspiracy. This is essentially a challenge to the sufficiency
of the evidence. Townsend, 924 F.2d at 1389. As in all
sufficiency claims, we take the evidence, including issues of
*9
credibility, in the light most favorable to the government and
ask whether a rational jury could easily find guilt beyond a
reasonable doubt. United States v. Moran,
The touchstone of conspiracy is an agreement to do an unlawful act, Iannelli v. United States, 420 U.S. 770, 777 (1975), but each coconspirator need not know of or have contact with all other members, nor must they know all of the details of the conspiracy or participate in every act in furtherance of it. [3] The jury may infer an agreement circumstantially by evidence of, inter alia, a common purpose (such as a purpose to sell illicit drugs), overlap of participants, and interdependence of various elements in the overall plan. [4]
Putting aside Martinez (who raises a separate claim
that we address below), the evidence permitted the jury to find
that the appellants and their co-defendants were engaged in a
single drug conspiracy. The Garcias, Ventura, and Batiz all
*10
engaged in a joint venture--the La Cantera drug point--whose
main supplier was Ayala. Ayala supplied the drugs and profited
from their resale, while the Garcias, Ventura, and Batiz ran the
resale operation and took steps--often violent--to protect it.
This ongoing operation could be found to constitute a
conspiracy. See United States v. Ortiz De Jesus,
Perez was not involved in the operations of the La
Cantera drug point but instead operated his own drug points at
Los Lirios del Sur and Santiago Iglesias. Were this Perez's
only connection to Ayala, it might be arguable that Perez was
not part of the same conspiracy as the La Cantera operators. In
a case where a common supplier is the sole link between diverse
distributors, it may be more difficult to sustain a finding of
common agreement, see, e.g., Kotteakos, 328 U.S. at 754-56;
Glenn,
In this case, not only was Perez one of Ayala's distributors, but he directly aided Ayala by helping her retrieve the drugs from Jockey, Ayala's aforementioned Colombian *11 contact. From there, Perez distributed the drugs to the drug points per Ayala's instructions. This evidence is more than sufficient to show that Perez was in a single conspiracy with Ayala and the La Cantera operators to distribute narcotics.
Evidence as to Martinez. Martinez argues separately that even if the other co-defendants were part of a single drug conspiracy, he was not part of it. Martinez paints himself as a "hired gun" who participated in the murder of Bejumen Santiago at the behest of the Garcias but did not share or even know of their purpose to promote the drug operations.
There is evidence that Martinez was directly involved
in drug dealing. Goglas testified that Martinez worked for
Julio Teta, a friend of Manuel Garcia who was starting a new
drug point at Guanica. Teta, usually accompanied by Martinez,
went to Goglas' house almost every day to pick up drugs from
Garcia for the drug point. Perhaps this evidence would suffice
for the jury to infer that through these repeated purchases of
drugs for resale, Martinez joined the Garcias' drug enterprise.
See United States v. Rivera-Ruiz,
We need not decide this issue, however, because here there is clearer evidence of agreement. Sometime prior to February 1997, Teta agreed to help Garcia in his conflict with *12 Gerardito in exchange for help with some problems he was having at the Guanica drug point. The evidence that Martinez was regularly involved in drug dealing with Teta provides a reasonable basis for the jury to infer that he also knew about the working arrangements between Teta and Garcia; this is the most straightforward way to explain how he came to assist Garcia, for whom he did not otherwise work, in carrying out the murder of Bejumen--which (as will be seen) can be deemed a part of the larger conspiracy.
This inference is reinforced by the fact that on another occasion Teta and Martinez unsuccessfully went out to find and kill Nelsito and Gerardito using guns supplied by Manuel Garcia. Based on this evidence--Teta's pact with Manuel Garcia, Martinez's relationship with Teta, and Martinez's overt acts on behalf of Manuel Garcia--a jury could reasonably infer that Martinez agreed to join the Garcias' drug operation in the capacity of an enforcer.
Virtually all of the evidence linking Martinez to the conspiracy came in through the testimony of Goglas, [5] and Martinez argues that the uncorroborated testimony of a government *13 informant is not enough to convict. That argument runs contrary to the law of this circuit, which leaves in the hands of the jury decisions about credibility of witnesses "so long as the testimony is not incredible or insubstantial on its face." United States v. Andujar, 49 F.3d 16, 21 (1st Cir. 1995) (quotations omitted).
Perez's money laundering conviction. Perez appeals the denial of his motion for a judgment of acquittal on the money laundering conspiracy count. The government replies that Perez conspired with Ayala to engage in a financial transaction designed to conceal the unlawful proceeds in violation of 18 U.S.C. § 1956(a)(1)(B)(i) (1994). Specifically, the government on appeal relies on an incident in which Ayala had her drug point employee Hector Dominicci install air conditioning units in Perez's house. Ayala paid Dominicci between $8,000 and $10,000 in cash, which she retrieved from the house of her friend Maria Barbosa, who routinely hid drug money for her.
To prove a money laundering conspiracy under 18 U.S.C.
§ 1956(a)(1)(B)(i), the government must show that Perez agreed
to have the air conditioners installed knowing both that they
were paid for with illegal proceeds and that the transaction was
"designed, in whole or in part . . . to conceal or disguise the
nature, the location, the source, the ownership, or the control
*14
of the proceeds . . . ." Where the defendant is someone other
than the source of the illegal proceeds (here, Perez), the
statute is concerned with his knowledge of the source's intent
in the transaction. United States v. Campbell,
Perez objects that there is no evidence that Ayala used the air conditioners to conceal her drug money or that he knew of Ayala's intent. Concededly there is no direct evidence of Ayala's intent in this transaction. But the evidence indicates at least two other transactions between Ayala and Dominicci that support an inference of pattern. In 1995 Ayala gave Dominicci $30,000 in small bills and had him buy a Ford Explorer for her in the name of his air conditioning company. She also paid him about $16,000 in cash for a Mazda that was registered to Dominicci's sister. Dominicci used the money to pay off the balance on the car; the registration was never changed after the sale.
Purchasing large items with drug money through third
parties surely supports an inference of intent to conceal. See
United States v. Westbrook,
As to Perez's knowledge, he was intimately involved in Ayala's drug operations, both helping Ayala retrieve the drugs from Jockey and helping distribute them to the drug points. He also ran two drug points of his own. Perez's deep involvement in Ayala's drug business is enough for a jury to find beyond a reasonable doubt that when Perez agreed to have the air conditioners installed, he knew that Ayala was using them to conceal her drug money.
II. ADMISSION OF SPECIFIC EVIDENCE
Evidence of the murders. Appellants object to the
admission of specific pieces of evidence introduced at trial.
Martinez argues that the evidence of the Bejumen and Vazquez
murders was unfairly prejudicial and irrelevant because they had
no relationship to the drug conspiracy. See Fed. R. Evid. 403;
United States v. Gonsalves,
There was even more evidence presented at trial linking the Vazquez murders to the drug conspiracy. While Bejumen may have been killed for purely retributive reasons, there is substantial evidence that the Vazquezes posed a more immediate threat to Garcias's future interests at La Cantera. After the feud between Gerardito and the Garcias erupted, Michael Vazquez began to shoot at Gongolon's drug point at La Atocha and the Garcias' drug point at La Cantera, which depressed drug sales. The Garcias thus targeted the Vazquezes not only to get back at Gerardito, but to protect the profitability of the drug conspiracy. The admission of the murders was relevant and not unfairly prejudicial.
Co-conspirator hearsay statements. Much of the
government's proof rested on hearsay statements that were
admitted in evidence under the co-conspirator exception, which
exempts from the hearsay rule statements "by a coconspirator of
a party during the course and in furtherance of the conspiracy."
Fed. R. Evid. 801(d)(2)(E). The district court found at the
close of the evidence that the statements more likely than not
*17
satisfied the requirements of the rule. See United States v.
Petrozziello,
Although its rationale is sometimes deemed shaky, "the
co-conspirator exception to hearsay is of long standing and
makes a difficult-to-detect crime easier to prove." United
States v. Goldberg, 105 F.3d 770, 775 (1st Cir. 1997). As
developed by the courts, the "in furtherance" requirement
provides a limited exception for "idle conversations among
criminal partners," as well as for statements clearly intended
to foil rather than facilitate the criminal enterprise. 5
Weinstein, Federal Evidence § 801.34[5] (2d ed. 2001). However,
a statement need not be necessary or even important to the
conspiracy, or even made to a co-conspirator, as long as it can
be said to advance the goals of the conspiracy in some way. Id.
Six of the statements challenged by the appellants
easily satisfy this requirement because they conveyed to other
co-conspirators information about the operations of the drug
conspiracy centering around Ayala: which drug points Ayala
*18
supplied, the means by which she retrieved the drugs from
Jockey, and the role that Batiz played at La Cantera. Three of
the statements indicate that Ayala supplied drugs to Gongolon
and Antonio Gonzalez-Vega; two others are about Ayala's
statements concerning the retrieval of drugs from the ocean; the
sixth concerns Batiz's status as an employee of Ventura at La
Cantera. See Sepulveda, 15 F.3d at 1180-81 (sharing of
information about co-conspirators' roles and a conspiracy's mode
of operation); United States v. Munson,
The final two statements--admissions by "Eleizer" to Gongolon and Goglas that he killed "Joito El Orejon"--are more debatable. Eleizer was Gongolon's bodyguard and worked at his drug point at Tibes. Gongolon testified that he told Eleizer he was upset with Orejon for trying to sell a stolen car at Tibes, fearing it would "heat up" the drug point. When Eleizer responded that he wanted to kill Orejon, Gongolon advised him to wait until Orejon left Tibes. After the killing, Eleizer told Gongolon how the shooting occurred. On this version of the facts, Eleizer's statements to Gongolon were undoubtedly in furtherance of their drug conspiracy, since he and Gongolon were *19 discussing strategies for dealing with the threat posed by Orejon to the Tibes drug point.
Goglas, however, testified that Ayala had Eleizer kill Orejon because Orejon had stolen some jewelry and money from Ayala's friend Jose Velazquez. This version of the facts is friendlier to the appellants, since it makes the murder--and consequently Eleizer's admission to it--less clearly relevant to the drug conspiracy. Although there is scant evidence as to which version of the facts is accurate (perhaps both are), we cannot say that the district court clearly erred in concluding that Eleizer's admissions were more likely than not in furtherance of the drug conspiracy.
Moreover, even if there was error in admitting these
final two statements, it was patently harmless. Here the
evidence as to the appellants' participation in the conspiracies
was strong, and it is highly improbable that the statements
about Eleizer's role in a murder that was at best peripheral to
the prosecution's case affected the verdict. United States v.
Tse,
III. PAYMENTS TO WITNESSES
Gamaliel Goglas, the main witness implicating Martinez in the conspiracy, was paid $9,000 in return for his cooperation in the government's case. Goglas testified that he decided to *20 cooperate with the government because he began to fear for his life after he robbed $23,000 from Ventura and that the payments were for his security while in Puerto Rico (hotel and travel expenses) and for his relocation (a one-way ticket from Puerto Rico). DEA Agent Lugo corroborated this testimony, although he admitted mistakenly indicating on a DEA form that the payment was for "information." Angela Castro, another cooperating witness, was paid $10,000 for relocation expenses for her and her husband.
Martinez argues that these payments compromised the
integrity of his conviction and violated the federal witness
bribery statute, 18 U.S.C. § 201(c)(2) (1994). As to the
statutory issue, it is entirely doubtful that 18 U.S.C. §
201(c)(2) applies at all to the government, see United States v.
Lara, 181 F.3d 183, 198 (1st Cir. 1999), but in all events
Congress has explicitly authorized the Attorney General to
provide for the relocation and protection of witnesses that may
be in danger, see 18 U.S.C. § 3521 (1994) (Witness Relocation
and Protection Act). It would be unreasonable to interpret 18
U.S.C. § 201(c)(2) as precluding a practice specifically
authorized by a more specific and recent statute. See, e.g.,
Morton v. Mancari,
*21
Certain inducements to government witnesses may
compromise a defendant's fair trial right wholly apart from
section 201(c)(2). United States v. Murphy,
Cir. 1999); see United States v. Dailey,
Here the payments to Goglas were a relatively small
amount and, despite the apparent mistake in notation by the DEA
agent, designed specifically for protection and relocation
expenses. The defense cited such payments to argue bias to the
jury as its main defense theory. And the district judge
instructed the jury that they should approach the testimony of
these witnesses "with particular caution." All of this lay well
within constitutional bounds. See United States v. Wilson, 904
F.2d 656, 659-60 (11th Cir. 1990), cert. denied,
IV. PROSECUTION'S SUMMATION
All three appellants allege that the trial was tainted by improper remarks by the prosecutor in summation. Some were objected to; others were not. Although several of the remarks were highly improper, none calls for a new trial.
The appellants first object to the prosecutor's repeated and graphic references to the various murders described at trial, claiming that this inflamed the passions of the jury and distracted from the merits of the case. The trouble with this theory is that, as discussed in Part II above, the murders were a legitimate part of the government's case because they were overt acts of the conspiracy.
At several points, the prosecution appealed to the
juror's "hearts and minds" and "conscience." The prosecutor
told the jury that "your conscience must have been screaming at
you, screaming at you that [the defendants] were guilty."
Later, the prosecutor said that "if you know in your head and
your heart that these defendants are guilty then you must return
the only verdict that the evidence commands." These comments
were plainly improper appeals to the jury's emotions and role as
the conscience of the community. See Arrieta-Aggresot v. United
States,
Nevertheless, these statements were immediately stricken, and when defense counsel later moved for a mistrial on *23 those grounds, the district court denied it and instructed the jury that they were to use their common sense and experience, not their emotions. Improper though the prosecutor's statements were, they are basically rhetoric rather than misstatements of evidence. We also give weight to the judgment of the trial judge, who was better able to assess the impact of the remarks on the jury, that they did not prejudice the outcome in light of the curative instruction and overwhelming evidence.
More disturbing was the prosecutor's characterization
of the defendants as "hunting each other like animals" and
killing one another "with no mercy." The reference to the
defendants as animals is especially inflammatory and improper.
See United States v. Hands,
As to the various misstatements of fact alleged by the
appellants, most appear reasonably supported by the record or
are within the prerogative of the prosecution to characterize
*24
the evidence presented at trial and argue certain inferences to
the jury. United States v. Mount,
The appellants claim that the prosecutor improperly vouched for witnesses' credibility on several occasions. The first statement--that the police returned certain seized money because they did not yet have Angela Castro's testimony to link it to Ayala--does not even arguably constitute a personal assurance as to Castro's credibility.
The second statement--that cooperating witnesses had
a motive to tell the truth because of the dire consequences of
breaking their plea agreements--was also not improper vouching
because it provided a reason, not a personal assurance, why the
jury should believe the witnesses. United States v. Auch, 187
F.3d 125, 131 (1st Cir. 1999); see United States v. Rodriguez,
215 F.3d 110, 123 (1st Cir. 2000). Moreover, it was an
appropriate response to the defense's main theory, which was
that the cooperating witnesses were lying to obtain leniency.
See United States v. Mejia-Lozano,
A final set of statements were clearly improper. In
its rebuttal, the government sought to support the credibility
of four cooperating witnesses--Angela Castro, Antonio Gonzalez-
Vega, Daniel Sanchez-Ortiz, and Kelvin Moro-Ortiz--by stating
that they would have concocted more damaging stories if they had
been lying in order to curry favor with the government. We have
repeatedly held that this type of argument crosses the bounds of
permissible conduct. See Auch,
We do not condone the continuing disregard for our precedents by federal prosecutors in Puerto Rico. See, e.g., United States v. Gonzalez-Gonzalez, 136 F.3d 6, 10 (1st Cir. 1998) (citing cases); see also United States v. Capone, 683 F.2d 582, 586 (1st Cir. 1982) (noting that a new trial may be appropriate if "sanction is needed to deter future prosecutorial misconduct"). Here, the prosecutor's argument is all the more problematic given that it occurred in rebuttal, was not followed by a cautionary instruction, and occurred in a case that rested largely on the testimony of cooperating witnesses whose *26 credibility was crucial to determining guilt. See Auch, 187 F.3d at 129, 132.
However, the prosecution's vouching extended to only four relatively minor witnesses; no claim is made that other key witnesses--specifically Gongolon, Goglas, and Dominicci--were improperly vouched for. Their testimony, which was often corroborated by testimonial and tangible evidence, was more than enough to establish the drug conspiracy as to all appellants beyond reasonable doubt. See United States v. Palmer, 203 F.3d 55, 59 (1st Cir. 2000). Although the issue is close, the prosecutor's inexcusable remarks do not warrant a new trial.
Finally, the appellants claim that the prosecution
improperly shifted the burden of proof by remarking to the jury
that the defense failed to keep its promise in opening statement
to ask certain questions about the drug trafficking relationship
between Perez and Hector Dominicci. Whether or not this remark
crosses the line, see United States v. Savarese,
(1st Cir. 1981), the district judge removed any threat of prejudice by immediately striking the statement and clearly instructing the jury that the burden of proof beyond a reasonable doubt rested squarely with the prosecution.
V. JURY INSTRUCTIONS
Ayala and Perez contend that the district court's
refusal to give a "buyer-seller" jury instruction constitutes
reversible error. Such an instruction would have informed the
jury that a buyer and seller in a single drug transaction are
not invariably part of a drug conspiracy. United States v.
Moran,
We noted in Moran that other variations on this classic
case might raise additional problems, but we need not address
any of them in this case. Appellants were entitled to the
"buyer-seller" instruction only if the record, taken in the
light most congenial to their theory of the case, could
plausibly support it. United States v. Rodriguez,
VI. SENTENCING ISSUES
Ayala and Perez's sentencing claims. These two appellants challenge their sentences on several grounds, three of which are common to them both. As background, we start with *28 a description of Ayala and Perez's sentencing proceedings. In accordance with settled practice at the time, United States v. Lindia, 82 F.3d 1154, 1160-61 (1st Cir. 1996), the court proceeded to determine the quantity of drugs involved in the offense. Relying upon trial evidence, the court concluded that more than 150 kilograms of cocaine were involved in the conspiracy and fairly attributable to both Ayala and Perez.
This figure was far more than needed to trigger the statutory maximum life sentence, 21 U.S.C. § 841(b)(1)(A), and enough to set their guideline base offense levels at 38, the highest unadjusted level for drug crimes, U.S.S.G. § 2D1.1 (1998). With a criminal history category of IV, Ayala was initially subject to a 324 to 405 month sentence, and Perez, with a criminal history category of III, was initially subject to a term of 292 to 365 months. U.S.S.G. Ch. 5 Pt. A (sentencing table).
However, the court found that life sentences were mandated in each case for at least two reasons. First, after making the requisite factual findings, the court applied two upward departures to each appellant's base offense level: a two- level increase for possession of a firearm, U.S.S.G. § 2D1.1(b)(1), and a four-level increase for being an organizer or *29 leader of the conspiracy, id. § 3B1.1. With these enhancements, Perez and Ayala were subject to life terms.
Second, as an alternative, the court applied U.S.S.G. § 2D1.1(d)(1)'s murder cross reference, which says that "[i]f a victim was killed under circumstances that would constitute murder under 18 U.S.C. § 1111" the sentencing court shall apply U.S.S.G. § 2A1.1. The court found, by a preponderance of the evidence, that Ayala was responsible for the murders of Joito el Orejon and Michael and Eddie Vazquez, and that Perez had ordered the murder of Sol Garcia. Accordingly, it increased their base offense levels to 43, as specified in section 2A1.1. The pair were again subject to life terms.
Third, the court determined that Ayala (but not Perez) was subject to a mandatory life sentence under 21 U.S.C. § 841(b)(1)(A) because she had two or more prior drug felony convictions.
Finally, the court proceeded to sentence the appellants on the money laundering count. At the outset, the court declined to group the two counts of conviction under U.S.S.G. § 3D1.2 since the drug offenses involved murder and thus distinct victims and harms. It then calculated a combined base offense level of 43 and applied it to the money laundering conviction. U.S.S.G. § 3D1.4. The court then imposed a sentence of 20 years *30 on each Ayala and Perez, the maximum allowed by statute. 18 U.S.C. § 1956(a)(1).
First, Ayala and Perez say the district court violated
their rights under Apprendi v. New Jersey,
Although Ayala and Perez were sentenced in July and
August of 1999, before Apprendi was decided in 2000, there is no
bar to applying that decision now to their direct appeals.
United States v. Barone,
At trial, the government produced overwhelming evidence that the conspiracy involved at least five kilograms of cocaine. For example, Hector Dominicci testified to transporting and storing huge quantities of cocaine for Ayala and Perez. On one occasion alone he handled 20 sacks of cocaine, each containing several kilograms of the drug. Further, Victor Rodriguez, another of Jockey's contacts, testified that Ayala received drugs from air drops, each of which involved between 600 and 1,000 kilograms of cocaine. The record is replete with other examples as well, involving Ayala, Perez, or their co- conspirators. [6] Sepulveda, 15 F.3d at 1197; U.S.S.G. § 1B1.3(a)(1)(B).
Relying upon this evidence, the sentencing court ultimately determined that the conspiracy involved more than 150 kilograms of cocaine, or thirty times more than needed to impose a life sentence under 21 U.S.C. § 841(b)(1)(A). Neither appellant seriously denies that the conspiracy involved at least five kilograms of cocaine. In fact, Ayala makes no effort *32 whatsoever to undermine the accuracy of the sentencing court's findings. And Perez takes aim at the wrong target for Apprendi purposes--the 150 kilograms figure--conceding in his brief and at sentencing that he was responsible for more than 50 kilograms of cocaine.
Insofar as Perez attacks the district court's finding
of drug amount as affecting the guidelines range, Apprendi is
simply beside the point. United States v. Caba,
Next, Ayala and Perez challenge the sentencing court's
application of U.S.S.G. § 2A1.1, the first degree murder
provision cross-referenced by section 2D1.1(d)(1), on several
legal grounds. Their argument is that the sentencing court
again violated Apprendi by finding, under a preponderance of the
evidence standard, that they played a role in various conspiracy
murders, thus subjecting them to life imprisonment. The
argument fails, however, because Apprendi does not apply to
findings made for purposes of the sentencing guidelines, such as
the court's determinations that the appellants were accountable
for the murders. Caba,
*33
Two other arguments on this score require only the
briefest discussion. Ayala and Perez say that the murders are
irrelevant to drug crime sentencing because neither U.S.S.G. §
2A1.1 nor the cross-reference table in Appendix A of the
Guideline Manual mentions the drug statutes. To the contrary,
the murders can be taken into account when sentencing for the
drug crimes; U.S.S.G. § 2D1.1 explicitly cross-references the
murder provision of section 2A1.1. See United States v. Padro
Burgos,
Ayala and Perez also suggest that because the cross- reference refers to 18 U.S.C. § 1111 (1994), which embraces both first and second degree murder, a court might apply the higher base offense level for a first degree murder case where only second degree murder had been established. Compare U.S.S.G. § 2A1.1 (level 43) with id. § 2A1.2 (level 33). In the present case this is a fanciful concern since the murders committed by the conspiracy were plainly "willful, deliberate, malicious [or] premeditated" and so within the definition of first degree murder under 18 U.S.C. § 1111.
Separately, Ayala renews her objection to the district court's determination that she had two prior drug felony convictions and was thus subject to a mandatory life sentence under 21 U.S.C. § 841(b)(1)(A). At sentencing, and now on *34 appeal, Ayala acknowledges having two prior felony drug convictions but says the court should have lumped the convictions together because they represent a single episode of ongoing criminal conduct.
Prior felony drug convictions will be counted separately for purposes of 21 U.S.C. § 841(b) only when they represent distinct criminal episodes. See United States v. Gillies, 851 F.2d 492, 497 (1st Cir. 1988). Ayala's prior convictions stem from several transactions, occurring over several months and involving different drugs. [7] There was no error in treating these convictions as distinct. As the Ninth Circuit has reasoned:
An ongoing course of criminal conduct such as narcotics trafficking may involve many such criminal episodes, each a discrete occurrence. The fact that all are related, part of a series, or part of a continuous course of criminal dealing, does not necessarily render them a 'single' criminal episode, particularly where the episodes occur over time. To so hold would insulate the very career criminals the statute is designed to reach--those continuously engaged in criminal conduct.
*35
United States v. Maxey,
Separately, Perez renews an objection he made at sentencing, claiming the court had no basis for imposing a four- level enhancement for his role in the drug offense. He acknowledges that he ran some operating units within the conspiracy (e.g., his drug points) and that a two-level enhancement is probably warranted. But he denies leading or managing the overarching conspiracy, arguing that a four-level enhancement is only appropriate for those individuals at the very top of its organization (e.g., those who coordinated among
the multiple smaller operating units). Cf. United States v.
Tejada-Beltran,
We review role-in-the-offense determinations, steeped in the facts of the case, for clear error. United States v. Cadavid, 192 F.3d 230, 237 (1st Cir. 1999). Here, the four- level increase is justified "if the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive . . . ." U.S.S.G. § 3B1.1(a).
The record shows that Perez ran at least two separate drug points and supervised the work of at least five other *36 people, including three sellers at the Los Lirios del Sur drug point; the runner, Daniel Sanchez-Ortiz; and another individual at the Santiago Iglesias point. See United States v. Li, 206 F.3d 78, 91-92 (1st Cir. 2000). He also worked with Ayala in retrieving drug shipments and distributing them among the organization's other drug points.
This is perhaps a close case because Ayala was more clearly a leader, although a conspiracy may have several individuals deserving a four-level enhancement, U.S.S.G. § 3B1.1, App. Note 4, and the district court gets the benefit of review only for clear error. However, it does not much matter whether Perez is on one side of the line or the other because even a smaller three-level enhancement for being a manager or supervisor of criminal activity involving five or more participants, when combined with the two-level firearms enhancement (which Perez does not challenge on appeal), lifts Perez's base offense level to 43 and subjects him to a life term.
Lastly, Ayala and Perez say the court erred in sentencing them to 20 years for the money laundering conviction. They say the proper guideline range for the money laundering offense was 121 to 151 months, well below the 240-month *37 sentences they received. However, they misread the guidelines and the sentencing record.
It is quite true that if the money laundering count were the only count of conviction, it would carry an adjusted offense level of 30, after factoring in various enhancements. This, presumably, is the figure Ayala and Perez use to calculate their sentencing ranges. [8] The difficulty with the argument is that it ignores the manner in which the guidelines establish a single combined offense level for multiple-count convictions and use that offense level for sentencing on each count of conviction, subject to statutory maximums.
As already explained, the adjusted offense level for
the drug conspiracy count for both appellants was 43 (the
maximum allowed). U.S.S.G. § 3D1.4 provides a formula for
combining the offense level 43 and offense level 30 that results
in a combined offense level for all counts of conviction of 43.
The district court applied this formula because it held that the
drug and money laundering convictions should not be grouped
together under U.S.S.G. § 3D1.2--a judgment that Ayala and Perez
do not challenge and we need not independently address. Compare
*38
United States v. Harper,
Martinez's sentencing claims. Martinez was the first of the appellants to be sentenced, in late May 1999, and his proceeding differed slightly from that of Ayala and Perez. The court first found that Martinez had participated in the murders of Bejumen and his wife. Applying the cross-reference to the murder provision of the guidelines, U.S.S.G. § 2A1.1, the court calculated Martinez's base offense level at 43. It then granted him a two-level downward departure for being a minor participant in the conspiracy, reducing his offense level to 41. With a *39 criminal history category of I, Martinez was subject to a guideline sentencing range of 324 to 405 months, and the court imposed the maximum sentence within that range.
Notably, the sentencing court made no findings concerning drug quantity at the hearing; instead, it merely recited that the jury had found Martinez guilty of conspiracy to distribute "multi kilo quantities of drugs." This was arguably error under the guidelines, because absent any drug quantity determination, the maximum statutory sentence applicable to Martinez's crime was 20 years and he was given nearly 34 years. See U.S.S.G. § 5G1.1. Martinez, however, did not object to the error at sentencing. And in his second supplemental brief in this court, he concedes several times that he was responsible for more than 500 grams of cocaine, thus exposing him to a sentencing range of five to 40 years. [9]
Martinez did make two objections at sentencing: first, that he was being sentenced for a crime (murder) for which he was neither charged nor convicted. On appeal, he renews this claim under the guise of Apprendi, suggesting, as do Ayala and *40 Perez, that application of the cross-reference violates his due process rights. But Martinez's concession as to drug quantity is fatal to this claim of error. The sentence he received was below the statutory maximum of 40 years; as explained above, Apprendi is not implicated.
Second, Martinez made a truncated argument at
sentencing concerning the sufficiency of the evidence of his
participation in the murders. On appeal, he says the evidence
of the murder was inconsistent. Even assuming this argument was
fully preserved--which is doubtful--our review is only for clear
error because Apprendi is not implicated (the murder
determination affected only the guidelines determination, not
the statutory maximum). The district court heard admissible
hearsay evidence at trial directly implicating Martinez in the
murder; the hearsay was broadly consistent with an eyewitness
account of the murders; we can hardly say it was clear error for
the court to credit that evidence. United States v. Cunningham,
Finally, in a post-argument motion for supplemental
briefing on the Apprendi issue, Martinez brings to the court's
attention the December 2001 sentencing of the three co-
defendants who were not part of this appeal. Martinez complains
that these co-defendants received a more lenient sentence
*41
because the sentencing court felt constrained by the intervening
Apprendi decision. Without intimating any judgment as to these
latter sentencing decisions, whose circumstances are far from
clear, we decline Martinez's request for supplemental briefing
on the issue. Suffice it to say that two similar defendants can
easily receive different results depending on whether their
sentences come before or after a watershed opinion like
Apprendi. Compare United States v. Rivera-Maldonado, 124 F.
Supp. 2d 788, 790 (D.P.R. 2000) (declining in post-Apprendi
sentencing to make drug quantity determination and sentencing
defendant to lowest statutory maximum), with Duarte,
Since the government does not dispute that the evidence
was in the possession of the prosecution and not disclosed to
the defense, we apply the more generous Brady standard. United
States v. Josleyn,
Martinez’s Brady argument is based on a sworn statement in which Jaime Rivera-Morales, a former Puerto Rico police officer, admits to being one of the "police officers" who helped kidnap the Vazquezes but states that the murder was arranged by Jose Galiany on behalf of Santos Martinez, a drug dealer with no apparent connection to the Garcias. The statement was discovered after the verdict in this case, during a preliminary hearing in the Commonwealth trial of Manuel Garcia and Ventura for the Vazquez murders. Martinez says this statement could *43 have been used to impeach the credibility of Gongolon, and more importantly, Goglas, who was the main witness implicating Martinez in Bejumen's murder.
Wrongly withheld impeachment evidence, if powerful
enough, can be prejudicial and grounds for a new trial. United
States v. Bagley,
But here the statement by Rivera does little to undermine the confidence of the verdict against Martinez. Although it is true that Goglas's testimony as to the Teta- Garcia pact and the Bejumen murder provided the main link between Martinez and the drug conspiracy, see Part I above, Rivera's statement does not directly undermine Goglas’s testimony on that crucial point, since it relates to the Vazquez murders. Such weak impeachment evidence on an issue tangential to the conviction is not sufficient to warrant the drastic remedy of a new trial. See Sepulveda, 15 F.3d at 1220 n.5;
United States v. Nash,
Even taking the evidence most favorably to Perez, it
does not undermine our confidence in his drug conspiracy
conviction. Perez's participation in Sol Garcia's murder was
hardly important to the jury’s drug conspiracy verdict given the
overwhelming evidence--including testimony of other witnesses
and physical evidence such as drug ledgers--that Perez helped
Ayala retrieve drugs from Jockey and ran the Los Lirios del Sur
and Santo Iglesias drug points. Cf. Strickler,
Apart from his Apprendi claim, Perez did not dispute
on appeal the sufficiency of the evidence implicating him in Sol
Garcia's murder. Even reading Perez's Brady claim generously as
including an attack on the evidentiary basis for the sentence,
we cannot say that the district court's sentencing decision was
clearly erroneous, especially given the ambiguities in Arce's
statement. See United States v. Meyer,
The judgments of conviction, the sentences, and denials of post-trial motions are affirmed.
Concurrence follows.
TORRUELLA, Circuit Judge (Concurring).
I have not been
coy in expressing my views concerning prosecutorial misconduct.
See generally United States v. Moreno,
The problem of prosecutorial misconduct in closing
arguments is by no means confined to the District of Puerto
Rico. Cf. Bennett L. Gershman, Prosecutorial Misconduct § 11:1,
at 11-3 (2d ed. 2001) (noting that such misconduct has "become
staple in American prosecutions" and "shows no sign of abating
or being checked by institutional or other sanctions").
Nevertheless, federal prosecutors in Puerto Rico are conspicuous
in this circuit -- and, indeed, throughout this country -- for
their recalcitrance.
[11]
See Paul J. Speigelman, Prosecutorial
*47
Misconduct in Closing Argument: The Role of Intent in Appellate
Review, 1 J. App. Prac. & Process 115, 171-83 (1999) (analyzing
the office of the United States Attorney for the District of
Puerto Rico as a case study in "prosecutorial recidivism"). On
several occasions we have admonished them for their continuing
disregard of our precedent, but to no avail. See United States
v. González-González, 136 F.3d 6, 10 (1st Cir. 1998) ("We do
note a long history of improper statements in closing argument
United States v. Torres-Galindo,
Thus, I believe it is critical to emphasize a point
that our prior condemnations have perhaps overlooked.
Statements such as the ones found in this case are not merely
passages in a trial transcript that constitute fodder for
arguments on appeal. They are instances of unethical behavior
that virtually all sources of authority condemn with a single
*49
voice. See ABA Standards for Criminal Justice § 3-5.8 (3d ed.
1993); Model Rules of Professional Conduct, Rule 3.4(e); Code of
Professional Responsibility, DR 7-106(C); Restatement (Third)
The Law Governing Lawyers, § 107 (2000). It is well established
that district courts have, as a component of their inherent
powers, the authority to sanction such unethical behavior.
United States v. Kourí-Pérez,
Prosecutorial misconduct erodes our confidence in the very government entities charged with protecting the public's interests through enforcement of our laws. Moreover, by presenting this Court time and again with convictions tarnished by misconduct, prosecutors breed further cynicism by asking us to affirm these convictions on harmless-error grounds. The overall effect is one that impugns the dignity of both the *50 executive and the judiciary. Its pernicious results are a cause of concern for all of us.
Given the numerous rebukes from this Court, and the apparent disregard they have been shown, federal prosecutors in Puerto Rico should now be on notice that I, for one, will review with heightened scrutiny their claims of harmless error arising from prosecutorial misconduct.
Notes
[1] The evidence presented at trial was far more extensive and therefore differed in some respects from the evidence presented in the case against Jaime Garcia-Torres, who was tried separately for related offenses. See United States v. Garcia- Torres, ___ F.3d ___ (1st Cir. 2002).
[2] Because the defendants did not challenge the jury instructions as to conspiracy, we review the issue for evidentiary sufficiency only. United States v. Mena-Robles, 4 F.3d 1026, 1033 (1st Cir. 1993), cert. denied, 511 U.S. 1035 (1994).
[3] United States v. Garcia-Rosa,
[4] See United States v. Rivera-Ruiz, 244 F.3d 263, 268 (1st Cir. 2001); United States v. Randazzo, 80 F.3d 623, 629 (1st Cir. 1996); see also 2 LaFave & Scott, Substantive Criminal Law § 6.4(d) (1986).
[5] Danny Gongolon also testified that he had seen Martinez at Ayala's house on several occasions (including a barbecue party) before the murder of Bejumen, but Gongolon's testimony provided no specific information about the substance of Martinez and Ayala's relationship.
[6] For example, Danny Gongolon testified that he sold Ayala 37 kilograms of cocaine between 1994 and 1995 and received more than 10 kilograms from her on credit between 1995 and 1997.
[7] The Commonwealth levied four charges against Ayala for distributing cocaine on at least four different dates between October 1990 and March 1991. These charges were later consolidated. The federal government, after conducting its own investigation, charged Ayala with distributing heroin as well, apparently in or around July 1991, the date of her arrest for that crime. She pled guilty to the charges and received a five- year sentence on the Commonwealth charge(s), and a six-month sentence on the federal charge, to be served concurrently.
[8] With a criminal history category of IV, Ayala would be subject to a term of 135 to 168 months. Thus, it is unclear why she claims that the appropriate range was 121 to 151 months; this latter range applies to defendants, like Perez, with a criminal history category III.
[9] The district court would have had no difficulty finding
Martinez responsible for over 500 grams of cocaine. Martinez
was familiar with the Garcia drug point, which involved large
quantities of cocaine, and the drug point transactions were
foreseeable acts in the conspiracy Martinez joined through the
murder of Bejumen and his wife. See Sepulveda,
[10] This eyewitness testified that two men--one light-skinned and one dark-skinned--killed Sol Garcia; Sanchez-Ortiz testified that both men were dark-skinned. Since Carrasquillo is white, the testimony lends some support to Arce's version of the events.
[11] A review of our cases from the past fifteen years
demonstrates the startling frequency with which we have found
closing remarks by prosecutors in the District of Puerto Rico to
be improper. See United States v. Rodríguez,