Filed: Apr. 07, 2005
Latest Update: Feb. 21, 2020
Summary: United States v. Antonakopoulos, 399 F.3d 68 (1st Cir.2, Santiago claims that his allocution at sentencing, in which, he denied having dealt drugs with his co-conspirators, is enough to, preserve his Blakely claim on the leadership enhancement.
Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 02-2112
UNITED STATES OF AMERICA,
Plaintiff,
v.
JUAN SANTIAGO-VÁZQUEZ, a/k/a JUAN CORAZÓN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Boudin, Chief Judge,
Howard, Circuit Judge,
and Carter,* Senior District Judge.
Juan Ortiz-Lebrón, by appointment of the court, for appellant.
Jacabed Rodríguez-Coss with whom Nelson Pérez-Sosa, Assistant
United States Attorney, Senior Appellate Attorney, H.S. Garcia,
United States Attorney, and Germán A. Rieckehoff, Assistant United
States Attorney, were on brief for appellee.
April 7, 2005
*
Of the District of Maine, sitting by designation.
Per Curiam. On February 21, 2002, after a five-day
trial, a jury convicted Juan Santiago-Vazquez ("Santiago") on one
count of conspiracy to distribute controlled substances, 21 U.S.C.
§ 846 (2000). He was thereafter sentenced to life imprisonment.
He now appeals, claiming ineffective assistance of counsel, trial
errors and errors at sentencing. He has supplemented his counsel's
brief with his own.
From the evidence presented at trial, the jury could have
found the following. Between 1990 and 1993, Santiago ran a drug
point in the Manuel A. Perez housing projects in Puerto Rico.
Santiago's organization primarily sold crack--1.5 to 2 kilograms
per month, and over five kilograms in 1992 alone--but also dabbled
in cocaine, heroin and marijuana. Santiago supervised at least ten
other individuals in the operation of his drug point.
Starting in 1991, Santiago's organization found itself at
war with rival drug dealers in the area. Over the course of the
conflict--which lasted through 1993--Santiago allied himself with
another drug dealer named Victor Negrón. Negrón and Santiago
loaned firearms to one another for protection, sold drugs to one
another, and coordinated manhunts to kill the supporters of rival
gangs.
Santiago planned and sanctioned the participation of his
subordinates in these manhunts, which resulted in the deaths of at
least five rivals. The firearms used in these killings, as well as
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in the day-to-day operations of Santiago's drug enterprise,
included pistols, submachine guns, shotguns and rifles. Santiago
was arrested with one such weapon in 1993, and a stock of similar
weapons was seized from an apartment at which Santiago's main
lieutenant was present.
At trial much of the government's testimony came from
three cooperating witnesses: Alexander Cruz-Rojas, who had run a
drug point near Santiago's and had fought against Santiago in the
drug war; Ramon Cesareo-Soto, who worked in Negrón's organization,
was closely allied with Santiago in the drug war, and frequented
Santiago's drug point; and Negrón himself. Given their professed
roles in drug dealings and drug wars, their testimony was very
harmful to Santiago.
We deal first with Santiago's myriad claims of trial
error, all of which are fact-based and none of which entails novel
or complex issues of law. The claims are, among others, that
defense counsel failed to object to leading questions, permitted
introduction of prejudicial evidence relating to events outside the
relevant time frame or not sufficiently connected to the defendant,
permitted the jury to learn that other defendants had pled guilty,
allowed answers from witnesses without personal knowledge of the
events, and permitted expert testimony from a witness not qualified
as an expert.
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Virtually none of these claims, many made in a sentence
or two or at most a paragraph, is adequately developed on appeal,
which is alone fatal. See United States v. Zannino, 895 F.2d 1, 17
(1st Cir.), cert. denied,
494 U.S. 1082 (1990). In most cases, it
appears that no objection was made in the district court, so review
would in any event be only for plain error, but no effort is made
on appeal to show that any such error likely altered the outcome of
the trial given the other evidence against the defendant. United
States v. Olano,
507 U.S. 725, 732 (1993).
Santiago says that various trial errors insufficient in
themselves may cumulate so as to undermine the fairness of a trial
and make out a due process violation. See United States v.
Sepulveda, 15 F.3d 1161, 1195-96 (1st Cir. 1993), cert. denied,
512
U.S. 1223 (1994); see also United States v. Meserve,
271 F.3d 314,
332 (1st Cir. 2001). However, the case against Santiago was a
strong one, uncontradicted by any witnesses for the defense; and in
any event the brief on appeal fails to show that there were serious
errors, let alone a prejudicial accumulation.
The government has taken the trouble to address the
individual claims of error one by one. If any one of them was
properly preserved in the district court and appeared to have a
clear potential to alter the outcome of the trial, we would discuss
it. But none falls into this category. Given their sketchy
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development on appeal we think it is enough to say this and no more
about the individual trial error claims.
Santiago's next challenge (made in his pro se brief) is
to the court's special verdict form. The form, a modified version
of which had been requested by defense counsel, asked jurors three
questions: first, whether Santiago was guilty of the conspiracy to
distribute drugs charged in the indictment; second, whether more
than a specific quantity of each of four named drugs was involved;
and third, whether Santiago had conspired to commit murder over the
course of the conspiracy. The drug quantities contained in the
second question had been charged in the indictment against Santiago
and were included in response to a defense argument invoking
Apprendi v. New Jersey, 530 U.S. 466 (2000). The murders mentioned
in the third question were not charged in the indictment, but could
have resulted in a sentencing enhancement under U.S.S.G. §
2D1.1(d)(1); defense counsel therefore sought a separate jury
determination regarding the murders on the theory (loosely stated
by counsel) that Apprendi applied to that particular enhancement
under the guidelines.
Santiago--this is his own argument, not appellate
counsel's--says that the second and third questions both pointed
the jury in the direction of a life sentence, so that either way he
lost. That either alternative sufficed to raise the sentencing
range is true, but that is a function of the guideline in question.
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See U.S.S.G. § 2D1.1. Santiago would not have "lost" if the jury
had answered in the negative on both questions; unfortunately for
Santiago, the jury found that the government had proven its drug
quantities beyond a reasonable doubt.
Alternatively, Santiago complains that the second
question did not allow the jury to find lesser drug quantities than
those specified. This misunderstands the function of the question,
which was simply to determine in accordance with Apprendi whether
facts charged in the indictment (and raising the statutory maximum)
had been proven to a jury. If the jury concluded that only lesser
amounts had been proven, the answer would have been negative and
the precise lesser quantity irrelevant to the issue that Apprendi
reserved for the jury.
Santiago's final challenge to the special verdict form
claims that the mention of murder in the form unfairly prejudiced
the jury against him--particularly because no murders were charged
in his indictment. Leaving aside the fact that the special verdict
form--in particular the question about murders--was requested by
defense counsel and opposed by the government, we note that there
had already been ample (and appropriate) testimony about Santiago's
involvement in the murders over the course of the trial. The jury
would have already known of Santiago's alleged involvement in the
killings, and that knowledge would not have disappeared once
deliberations began. If the additional mention of drug murders in
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the special verdict form affected the jury's deliberations at all,
it could not have tainted them so effectively as to amount to a
denial of due process to Santiago.
Santiago also contests two of his supervised release
conditions: (1) that he submit to drug tests at his probation
officer's discretion; and (2) that he participate in a substance
abuse program at the officer's discretion if those tests are
positive. Santiago did not object to either condition at
sentencing, but the government concedes that both conditions are
plain error under United States v. Melendez-Santana, 353 F.3d 93
(1st Cir. 2003). Melendez said that both conditions were error
but, for reasons not relevant here, the court was required to
decide only whether one of them was "plain error" and made no
ruling as to whether the other would be so classified.
Two judges of this court have recently questioned whether
Melendez' plain error analysis is correct, United States v.
Padilla, 393 F.3d 256, 259-61 (1st Cir. 2004) (Campbell and Selya,
JJ., concurring in the judgment), and we have recently granted
rehearing en banc in that case to assess the continued viability of
the Melendez rationale. But unless and until the en banc court
holds to the contrary, Melendez' analysis controls. The government
concedes that both delegations in this case are inconsistent with
Melendez and does not seek to distinguish between them as to
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"plainness." Under these circumstances, we accept the government's
concession without further inquiry.
Santiago's remaining challenges to his sentence do not
fare as well. Santiago claims that both of his sentencing
enhancements--two levels for possession of a firearm in connection
with the offense, U.S.S.G. § 2D1.1(b)(1), and four levels for a
leadership role in the offense, U.S.S.G. § 3B1.1(a)--violate
Blakely v. Washington, 124 S. Ct. 2531 (2004), as do the guidelines
as a whole. Although Santiago relied upon Apprendi in seeking a
special verdict form, he got such a form (even if not exactly the
one he sought) and he thereafter made no further attack on the
guidelines at sentencing. We thus review for plain error.2
Following the Supreme Court's decision in United States
v. Booker, 125 S. Ct. 738 (2005), and this circuit's decision in
United States v. Antonakopoulos,
399 F.3d 68 (1st Cir. 2005), the
district court's use of mandatory guidelines at sentencing
constitutes "error" that is "plain." Nonetheless, Santiago must
still demonstrate prejudice and fundamental unfairness. See
Olano,
507 U.S. at 732-36;
Antonakopoulos, 399 F.3d at 77. In particular,
Santiago must show that there is a reasonable probability that he
would have been sentenced differently but for the error. "The
2
Santiago claims that his allocution at sentencing, in which
he denied having dealt drugs with his co-conspirators, is enough to
preserve his Blakely claim on the leadership enhancement. We
disagree.
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burden is on the defendant to convince us on specific facts" that
this is so. Id. at 80.
Santiago has been afforded the opportunity to point to
such facts in supplemental briefing, but has failed to do so. He
notes that the district court stated that its sentence and
enhancements were "pursuant to the guidelines," and that it relied
primarily (or perhaps exclusively) on the presentence report to
support its enhancements. But the former is not sufficient to
suggest that the district court would have sentenced him
differently under a discretionary post-Booker regime; and the
latter remains a valid exercise of the district court's authority
even after Booker. Santiago has pointed to nothing exceptional or
sympathetic about his case that would give us reason to suspect
that the district court would have sentenced him more leniently had
it been empowered to do so, and without more he has failed to meet
the requirements of Antonakopoulos for remand and resentencing.
There remains the claim that Santiago's trial counsel
was ineffective. Such claims cannot be raised on direct appeal,
save in the rare case where the error claimed can be considered
without further development of the record--a step usually necessary
to determine why counsel took the actions challenged as
incompetent. See United States v. Martinez-Vargas, 321 F.3d 245,
251 (1st Cir. 2003). This case falls squarely within the general
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rule and we decline to reach the ineffective assistance claim,
without prejudice to a section 2255 motion.
We affirm Santiago's conviction and sentence save that we
vacate the drug treatment and drug testing portions of Santiago's
supervised release conditions, and remand for resentencing as to
those conditions.
It is so ordered.
Concurrence follows.
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CARTER, Senior District Judge, concurring. I concur in
the Opinion of the majority in its decision on the merits of
Defendant’s challenges to the validity of his conviction and the
vacating of the drug treatment and drug testing portions of
Defendant’s supervised release conditions.
Because this panel is bound by a preexisting panel
decision of this court, see Eulitt v. Me. Dep’t. Of Educ., 386 F.3d
344, 349 (1st Cir. 2004), I reluctantly, and on that specific basis
alone, concur as to the majority’s rejection of Defendant’s
challenge, on the basis of Blakely v. Washington,
124 S. Ct. 2531
(2004) and United States v. Booker,
125 S. Ct. 738 (2005), to the
validity of his sentence. While I must accept, for purposes of my
participation in this case, the holding of a panel of this circuit
in United States v. Antonakopoulos,
399 F.3d 68 (1st Cir. 2005), I
do not agree with that decision’s rationale or holding. I share
the concerns raised by Judge Lipez in his concurring opinion in
United States v. Serrano-Beauvaix, No. 02-2286,
2005 WL 503247 (1st
Cir. Mar. 4, 2005). I believe, however, that the rationale of
Antonakopoulos is more deeply flawed in its constitutional analysis
than even Judge Lipez suggests in Serrano-Beauvaix.
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