UNITED STATES OF AMERICA v. EDGARDO SÁNCHEZ-BERRÍOS, JOSÉ COTTO-LATORRE, DAVID CRUZ-PAGÁN
No. 03-2333, No. 03-2334, No. 03-2335
United States Court of Appeals For the First Circuit
September 20, 2005
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before Boudin, Chief Judge, Selya, Circuit Judge, and Siler,* Senior Circuit Judge.
Juan M. Masini-Soler on brief for appellant Sánchez-Berríos. Lenore Glaser on brief for appellant Cotto-Latorre. Alan D. Campbell on brief for appellant Cruz-Pagán. H.S. Garcia, United States Attorney, Nelson Pérez-Sosa and Lisa Snell-Rivera, Assistant United States Attorneys, on brief for the United States.
I. BACKGROUND
We recount the facts in the light most hospitable to the verdicts, consistent with record support. United States v. Vega Molina, 407 F.3d 511, 516 (1st Cir. 2005).
The central figure in the reverse sting operation that led to the instant convictions is Arturo Ortiz-Colón, himself a corrupt police officer who, after his apprehension in the spring of 2000, began to cooperate with the Federal Bureau of Investigation (FBI) in exchange for leniency. That arrangement resulted in the launching of Operation Honor Perdido (Lost Honor).
In the course of that operation, Ortiz-Colón, posing as a corrupt federal agent, would present opportunities to local police officers to earn money for assisting in the transportation and protection of illegal drugs. The FBI furnished Ortiz-Colón with accouterments suitable to his assumed role, including a luxury
Diana Díaz, herself a corrupt police officer who had bought into Ortiz-Colón‘s charade, functioned as his “recruiter.” At various times, she approached defendant-appellant Edgardo Sánchez-Berríos (Sánchez), defendant-appellant José Cotto-Latorre (Cotto), and defendant-appellant David Cruz-Pagán (Cruz). Each of them was enlisted to participate in a different drug transport. The details follow.
After Díaz initially contacted Sánchez, Ortiz-Colón hired him to act as an escort for a drug delivery scheduled to take place in November of 2000. Sánchez, driving Díaz‘s car, accompanied the transport vehicle to a shopping plaza where the drugs were transferred to another vehicle. Ortiz-Colón paid Sánchez $5,000 for his services.
On the day of the transport, Cotto, wearing his uniform shirt and carrying his official firearm, rode with Ortiz-Colón to a marina. He helped to off-load the cocaine, stow it in Ortiz-Colón‘s car, and ferry it to Ortiz-Colón‘s apartment. Ortiz-Colón paid Cotto $5,000 for services rendered.
Díaz also recruited Cruz and arranged an audience for him with Ortiz-Colón. Cruz agreed to participate in a drug transport that occurred in May of 2001. During that incident, Cruz carried his firearm and helped to move cocaine from one vehicle to another. Ortiz-Colón later paid him $5,000 for his help.
After a twelve-day trial, the jury convicted Sánchez on counts 1 and 2, Cotto on counts 1, 5, and 8, and Cruz on counts 1, 6, and 8. The district court sentenced Sánchez to 151 months of imprisonment and a five-year supervised release term; Cotto to 188 months of imprisonment on the drug-trafficking charges, a consecutive five-year incarcerative term on the weapons count, and eight years of supervised release; and Cruz to 151 months of imprisonment on the drug-trafficking charges, a consecutive five-year incarcerative term on the weapons count, and eight years of supervised release. These appeals ensued.
The appellants advance a gallimaufry of challenges to their convictions and sentences. We discuss this panoply of issues along a quasi-chronological continuum that stretches from trial to sentencing.
A. Prosecutorial Misconduct.
Cotto argues that improper prosecutorial comments entitle him to a new trial. His challenge encompasses a variety of word choices made throughout the proceedings. He castigates (i) the prosecutor‘s reference, in the opening statement, to “Honor Perdido“; (ii) the prosecutor‘s eliciting of testimony from an FBI agent, Jeffrey Paleaz, that the FBI used sham cocaine in the reverse sting operation because it “did not trust” the targeted police officers with real cocaine; (iii) the prosecutor‘s repeated invocation of the term “corrupt officers“; and (iv) the prosecutor‘s allusion, in closing argument, to the defense attorneys’ explanation of what had occurred as a “self serving absurdity.”
Because Cotto interposed no contemporaneous objections to any of these word choices, we review his claim of prosecutorial misconduct under the plain error rubric. “Review for plain error entails four showings: (1) that an error occurred (2) which was clear or obvious and which not only (3) affected the defendant‘s substantial rights, but also (4) seriously impaired the fairness,
None of the statements singled out by Cotto was improper. “Honor Perdido” was the appellation assigned to the sting operation and, thus, was a background fact of the case. The agent‘s testimony, which explained why no actual drugs were in evidence, falls into the same classification. The prosecutor‘s description of the defense as a “self serving absurdity,” while not flattering, was fair argument. See, e.g., United States v. Bennett, 75 F.3d 40, 46-47 (1st Cir. 1996) (holding that prosecutor‘s comment that the defense argument was a “‘diversion’ that does not ‘pass the laugh test‘” did not “cross[] the line“); United States v. Sblendorio, 830 F.2d 1382, 1395 (7th Cir. 1987) (“Counsel represent many people with lame defenses; the prosecutor [is] entitled to say that the defenses [are] lame . . . .“).
B. Admission of Hearsay Evidence.
Cotto challenges the admission of an audiotaped conversation between Díaz and Ortiz-Colón, in which Díaz described her initial encounter with Cotto, opined that he had been involved in drug escorts before, and recounted his enthusiasm for the task. Díaz did not testify at trial. Building on this foundation, Cotto
There is a threshold issue here — an issue that involves the distinction between waiver and forfeiture. We have limned that distinction in the following terms:
A party waives a right when he intentionally relinquishes or abandons it. This is to be distinguished from a situation in which a party fails to make a timely assertion of a right — what courts typically call a “forfeiture.” The difference is critical: a waived issue ordinarily cannot be resurrected on appeal, whereas a forfeited issue may be reviewed for plain error.
United States v. Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002) (citations omitted). Although there was no explicit waiver here, the government asserts that we should not review this challenge because the hearsay issue was so obvious that the defense‘s failure to object constituted a waiver.
This argument is unavailing. In the absence of extraordinary circumstances, see, e.g., United States v. Houlihan, 92 F.3d 1271, 1281 (1st Cir. 1996) (finding that defendants had waived right to raise hearsay objections by murdering the potential witness) — and none are present here — a party who does not object to an evidentiary ruling has forfeited his claim of error, not waived it. See
The Federal Rules of Evidence exclude from the definition of hearsay “statement[s] by a coconspirator of a party [made] during the course and in furtherance of the conspiracy.”
Cotto posits that Díaz‘s statement — that is the only portion of the conversation with which we are concerned, as Ortiz-Colón testified at the trial — does not fall under this exemption because it was made before he had joined the conspiracy and, thus, before he and Díaz could be considered coconspirators. Yet it is clear from Díaz‘s statement, as well as from Cotto‘s subsequent account of the conversation (recorded in the course of the sting and admitted into evidence without objection), that Cotto agreed to join the conspiracy when he and Díaz first spoke. Although Cotto
In all events, Díaz‘s statement unarguably was made in furtherance of the conspiracy as it tended to promote one or more of the objects of the conspiracy. See United States v. Piper, 298 F.3d 47, 54 (1st Cir. 2002). Díaz was reporting the progress of her recruitment efforts to the ringleader. This was obviously an integral element of the phantom drug-trafficking operation. The audiotape thus falls squarely within the coconspirator exemption to the hearsay rule and the district court did not err in admitting it on that ground.
Cotto‘s Confrontation Clause challenge is similarly unpersuasive. In mounting this challenge, Cotto invokes Crawford v. Washington, 541 U.S. 36 (2004), in which the Supreme Court held
Nor does the admission of Díaz‘s statement infract the Constitution by virtue of the rule announced in Bruton v. United States, 391 U.S. 123 (1968). Bruton held that a Sixth Amendment violation occurs when a court, at a joint trial, admits one defendant‘s confession, which implicates the other defendant, without the opportunity for cross-examination. Id. at 137. The Court was careful not to take a position on whether the outcome would have been different had the confession been admitted under a hearsay exception. See id. at 128 n.3. We have answered this question, holding unequivocally that “there is no Bruton problem”
For these reasons, the admission of the audiotape was entirely proper.3
C. Entrapment.
We next examine Cotto‘s claim that the district court improperly refused to instruct the jury on entrapment. Because Cotto objected to this refusal at trial, we review his assignment of error de novo. United States v. Rodriguez, 858 F.2d 809, 812 (1st Cir. 1988).
Two elements comprise the defense of entrapment: “(1) government inducement of the accused to engage in criminal conduct, and (2) the accused‘s lack of predisposition to engage in such conduct.” Id. Only when the accused satisfies an entry-level burden of production as to both elements is the government put to its burden of proving beyond a reasonable doubt that no entrapment occurred. See id. at 814-15. By like token, unless and until a defendant carries his entry-level burden, he is not entitled to an instruction on an entrapment defense. Id. at 814. To clear this hurdle, he must supply “evidence which fairly supports the claims
In this instance, Cotto plainly failed to carry his entry-level burden as to improper inducement.4 In his appellate brief, Cotto makes no meaningful effort to direct us to record evidence of any improper inducement, but, rather, contents himself with sweeping generalities (e.g., that the government had gone “to extraordinary lengths to create a fiction,” suggested that there would be “reprisals if [Cotto] declined to join,” and exploited “the psychological pressure of the authority of higher ranked officers [to overwhelm] any resistance“). The record offers no support for these generalities. To the contrary, recorded meetings show beyond hope of contradiction that Cotto was eager to avail himself of the proffered drug-escort opportunities. The only inducement that the record reflects is a chance to make money — and holding out the prospect of illicit gain is not the sort of government inducement that can pave the way for an entrapment defense. See United States v. Coady, 809 F.2d 119, 122 (1st Cir. 1987) (explaining that entrapment does not exist merely because “a person succumbs to his own greed or to the lure of easy money“); see also United States v. Gifford, 17 F.3d 462, 468 (1st Cir. 1994)
That ends this aspect of the matter. Since Cotto provided no evidence of improper inducement adequate to satisfy his entry-level burden of production, the district court‘s decision to withhold an entrapment instruction cannot be faulted.
D. Sufficiency of the Evidence.
Sánchez and Cotto both challenge the district court‘s denial of their motions for judgment of acquittal. See
Sánchez claims that the government did not present sufficient evidence to prove the intent necessary for a conspiracy conviction. Without ever using the word “entrapment,” he employs the essentials of that construct to argue that the district court
To defeat a sufficiency challenge premised on a defense of entrapment, the evidence, taken in the light most favorable to the government, need only support a finding of either predisposition or lack of improper inducement. See Rodriguez, 858 F.2d at 814. The record in this case contains ample evidence on both points.
A discussion of lack of any improper inducement would substantially replicate what we already have written in relation to Cotto. See supra Part II(C). As to predisposition, we note that Sánchez‘s involvement in the drug escort was recorded and presented to the jury. Among other things, the jurors heard Sánchez being told, over and over again, that he did not have to participate in the venture. The jurors also heard Sánchez state that he was not worried about doing something that he knew was illegal; he was worried only about the possibility of being caught. From this and other evidence, it is abundantly clear that the government provided enough proof for a rational jury to conclude, beyond a reasonable doubt, that Sánchez was predisposed to commit the crime (and, therefore, was not entrapped).
The first flaw in this line of argument is that Cotto did not pursue it below. Since this particular theory of insufficiency was not preserved, our review is limited to the prevention of clear and gross injustice.6 Santiago, 83 F.3d at 23.
The evidence here is palpably sufficient to support the weapons count. The statute of conviction applies to “any person who, during and in relation to any crime of violence or drug trafficking crime . . . for which the person may be prosecuted . . . uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm.”
That conclusion leads to game, set, and match. If the use of sham cocaine has no effect on the underlying conspiracy charge, then a fortiori, it has no effect on the weapons charge in this case.
Without a showing that the weapons count failed as a matter of law, Cotto‘s sufficiency challenge fizzles. Videotaped evidence showed Cotto with his firearm during the drug transport and additional testimony confirmed that he had his firearm with him during the commission of the crime. That evidence is certainly enough to allow a rational jury to conclude — as this jury did — that Cotto was guilty as charged on the weapons count.
E. Sentencing Factor Manipulation.
Both Sánchez and Cotto accuse the government of improper sentencing factor manipulation. These accusations have different focal points: Sánchez asserts that the government manipulated the
Assuming, favorably to the appellants, that these arguments were merely forfeited rather then waived, we discern no plain error. Impermissible sentencing factor manipulation can justify a downward departure from the sentencing guidelines (or from any applicable statutory minimum). See Villafane-Jimenez, 410 F.3d at 87; United States v. Connell, 960 F.2d 191, 194 (1st Cir. 1992). Withal, such manipulation occurs only when the authorities “venture outside the scope of legitimate investigation and engage in extraordinary misconduct that improperly enlarges the scope or scale of the crime.” United States v. Barbour, 393 F.3d 82, 86 (1st Cir. 2004). The facts in this case do not show anything beyond the level of manipulation inherent in virtually any sting
We need not linger long over this point. The record makes manifest that the government did not lure the appellants into committing crimes more heinous than they were predisposed to commit. Rather, it fashioned a series of scenarios that fell well within the bounds of the crimes that the appellants indicated they were prepared to perpetrate. See id. at 196. Both the amount of drugs that Sánchez would transport and Cotto‘s agreement to carry a firearm were part of the initial plans and remained consistent throughout the operation. Nothing about those stipulations would raise the eyebrow of an impartial observer.
In short, the record reflects no impermissible sentencing factor manipulation here.
F. Acceptance of Responsibility.
Cotto argues that he should have received a two-level reduction in his base offense level for acceptance of responsibility. See
An acceptance of responsibility adjustment ordinarily “is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements
We do not rule out the possibility that, in some odd circumstances, a defendant who goes to trial solely to test the merits of an entrapment defense might nonetheless remain eligible for an acceptance of responsibility adjustment. Here, however, Cotto‘s claim of entrapment was so weak that it did not even reach the jury. Given his election to put the government to its proof at trial in order to explore so asthenic a defense, there is no principled way that we can set aside the trial court‘s discretionary refusal to discount his sentence for acceptance of responsibility.
G. Booker Error.
Cotto and Cruz ask that their cases be remanded for resentencing in light of the Supreme Court‘s recent decision in United States v. Booker, 125 S. Ct. 738 (2005). Because neither appellant preserved a claim of Booker error below, we review for plain error. See United States v. Guzmán, 419 F.3d 27 (1st Cir. 2005).
As to Cruz, the district court began with a base offense level of 32, see
Because the court treated the sentencing guidelines as mandatory, the appellants have satisfied the first two prongs of the plain error test. See United States v. Antonakopoulos, 399 F.3d 68, 75 (1st Cir. 2005). The
It is not enough for a defendant merely to argue that his sentence might have been different had the guidelines been advisory at the time of sentencing. Guzmán, 419 F.3d at 33. By the same token, an unadorned claim that the judge — and not the jury — found sentencing facts, even if true, does not warrant resentencing. United States v. Martins, 413 F.3d 139, 152 (1st Cir. 2005). Rather, the defendant must point to specific indicia of a reasonable probability of a more favorable outcome, see Guzmán, 419 F.3d at 33 — a burden that is tempered by our acknowledgment that, in this sort of situation, we will not be “overly demanding as to proof of probability.” United States v. Heldeman, 402 F.3d 220, 224 (1st Cir. 2005).
Cruz argues broadly that his sentence was “unreasonable,” but he declined our invitation to submit supplemental briefing in the wake of the Booker and Antonakopoulos decisions. The only specific item to which he adverts is the fact that he was sentenced at the bottom of the GSR. That fact, standing alone, is manifestly
Cotto, too, cites the fact that the court sentenced him at the low end of the GSR. Apart from that, however, his supplemental brief consists mainly of a diatribe exhorting us to scrap our plain error framework and adopt a rebuttable presumption of prejudice for unpreserved Booker errors. See, e.g., United States v. Barnett, 398 F.3d 516, 527-28 (6th Cir. 2005). We consistently have declined to alter our approach in this way. See Guzmán, 419 F.3d at 31 (citing Eulitt v. Me., Dep‘t of Educ., 386 F.3d 344, 349 (1st Cir. 2004), for the proposition that, in a multi-panel circuit, panels are bound by prior panel decision closely on point).
To say more on this topic would be supererogatory. There is simply no warrant here for a Booker remand.
H. Delegation of Sentencing Authority.
As a final matter, Sánchez and Cruz assert that the district court improperly delegated its sentencing authority when it imposed a supervised release condition that allowed a probation
There is a procedural twist. The government confessed error on both points in its brief and indicated that it would acquiesce in a remand. A concession by either party in a criminal case as to a legal conclusion is not binding on an appellate court. See United States v. Daas, 198 F.3d 1167, 1178 n.14 (9th Cir. 1999). Here, the government‘s concessions rested on our decision in United States v. Meléndez-Santana, 353 F.3d 93, 102-06 (1st Cir. 2003) — a decision that has since been overruled in relevant part. See Padilla, 415 F.3d at 215. Given these unusual circumstances, we will not hold the government to its concessions, but, rather,
To begin, we acknowledge that the sentencing court erred in structuring the disputed supervised release condition vis-à-vis the number of drug tests. In Meléndez-Santana, we held, as to the first disputed condition, that a sentencing court‘s delegation of discretion to a probation officer to determine the number of drug tests that a defendant must undergo, without capping that number, constituted a delegation error. 353 F.3d at 102-06 (citing
However, we overruled the “automatic reversal” rule of Meléndez-Santana and substituted conventional plain error review. See id. at 219-20. Upon undertaking that analysis, we held that the delegation error neither affected the defendant‘s substantial rights nor seriously impugned the integrity of the judicial proceedings. Id. at 220-23. Thus, the error did not warrant correction. Id. at 224.
For essentially the same reasons, we find no reversible error here. For Sánchez and Cruz to show that their supervised release conditions affected their substantial rights, they must
To cinch matters, the delegation error vis-à-vis the number of drug tests is, as in Padilla, “simply not of such magnitude or consequence that it would undermine faith in the judicial system were it to stand uncorrected.” Id. That the authority to cap the number of drug tests lies with a judge and not a probation officer reflects a legislative choice, not a constitutionally grounded right. See id. at 222. In addition, the error‘s effects are limited by statute: should the probation officer require an inordinate number of tests, a defendant is free to invoke
This leaves the condition that gives the probation officer discretion to place a defendant in a substance abuse
We will not tarry. Suffice it to say that we encounter grave uncertainty in attempting to divine whether the sentencing court would be more or less likely to require substance abuse treatment than the probation officer, so the error cannot be said to affect substantial rights. See Padilla, 415 F.3d at 221. Moreover, the authority of the court to impose the treatment condition derives from a policy choice memorialized in the sentencing guidelines, not from any sort of fundamental interest in fairness. See
The bottom line is that we should not waste scarce judicial resources “by seeking to rescue forfeited errors of no importance, encouraging more such claims and more wasted time in the future.” Id. at 225 (Boudin, C.J., concurring). A remand in
III. CONCLUSION
We need go no further. For the reasons elucidated above, we conclude that the appellants were fairly tried, appropriately convicted, and lawfully sentenced. Their appeals are, therefore, impuissant.
Affirmed.