USCA1 Opinion
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
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No. 93-2246
UNITED STATES OF AMERICA,
Appellee,
v.
LUIS A. SANTIAGO,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Hector M. Laffitte,* U.S. District Judge]
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Before
Selya, Circuit Judge,
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Aldrich, Senior Circuit Judge,
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and Stahl, Circuit Judge.
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George F. Gormley, with whom John D. Colucci and Gormley &
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Colucci, P.C. were on brief, for appellant.
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Luis A. Santiago on supplemental brief pro se.
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Helene Kazanjian, Assistant United States Attorney, with
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whom Jay P. McCloskey, United States Attorney, and Jonathan R.
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Chapman, Assistant United States Attorney, were on brief, for
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appellee.
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May 1, 1996
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*Of the District of Puerto Rico, sitting by designation.
SELYA, Circuit Judge. A jury empaneled in the United
SELYA, Circuit Judge.
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States District Court for the District of Maine found defendant-
appellant Luis A. Santiago guilty of a single count of conspiracy
to possess and distribute heroin, 21 U.S.C. 846, and the
district court sentenced him as a career offender. Santiago now
challenges his conviction and sentence. We affirm.
I.
I.
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Background
Background
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We limn the facts in the light most congenial to the
verdict, consistent with record support. See, e.g., United
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States v. Maraj, 947 F.2d 520, 522 (1st Cir. 1991).
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The overarching conspiracy that the government charged
in the indictment and attempted to portray at trial pirouetted
around Wilfredo Figueroa, a Lawrence, Massachusetts drug dealer.
Figueroa began his career as a purveyor of cocaine. In 1991, he
shifted his attention to heroin. He soon built up a roster of
approximately fifteen clients, all from Maine. In a typical
transaction a client would call Figueroa from Maine, order a
certain quantity of heroin, and then sojourn to Lawrence to take
delivery. Occasionally a client would appear on Figueroa's
doorstep without any prearrangement, and Figueroa would
improvise.
In effect, Figueroa acted as a middleman (or so the
jury could have found). From October 1991 forward, he had two
suppliers: Angel Soto and the appellant. Figueroa patronized
Soto as his principal supply source but turned to the appellant
2
whenever Soto could not fill an order. Furthermore, some of
Figueroa's clients preferred the "brand" of heroin that the
appellant carried, and Figueroa invariably used Santiago as his
source of supply whenever a client ordered that brand.1
When Figueroa asked for heroin, the appellant would
either deliver the drugs personally or arrange for their
delivery. All the deliveries took place in Massachusetts.
Figueroa (who cooperated with the government and testified at the
trial) stated that he purchased an average of fifty bags of
heroin a day from the appellant at $15 apiece, often on credit.
Although the appellant claims that he never met any of the retail
customers, the government presented evidence that contradicted
this assertion; and, moreover, Figueroa testified that he
informed the appellant that all his clients were coming from
Maine to Massachusetts to buy heroin.
Figueroa's involvement in the drug trade followed a
hallowed family tradition. His uncle, Roberto Figueroa, dealt
drugs in Maine. Blood may be thicker than water, but it is by no
means thicker than self-interest. When lawmen closed in on
Roberto Figueroa's operation he threw his nephew to the wolves in
hopes of mitigating his own punishment. To help set the snare,
Roberto ordered 130 bags of heroin from his compliant nephew and
demanded delivery in Maine. The appellant sold fifty bags of
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1Santiago (who wrapped individual doses of heroin in
plastic) and Soto (who used paper bags) packaged their products
differently. Clients identified their preference for one brand
over another by reference to the packaging.
3
heroin to Figueroa and Soto supplied the remainder. On January
15, 1992, Figueroa and Soto exchanged the drugs for cash at a
designated rest area alongside the Maine Turnpike and were
promptly arrested. The authorities apprehended the appellant in
Massachusetts and, without objection, removed him to Maine for
trial. He was convicted and sentenced in due course. This
appeal ensued.
II.
II.
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Analysis
Analysis
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A.
A.
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Sufficiency of the Evidence
Sufficiency of the Evidence
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The appellant who is represented by fresh counsel on
appeal argues that the government presented insufficient
evidence to justify a conviction. Since the appellant did not
preserve a sufficiency challenge by moving for judgment of
acquittal at the close of all the evidence, see Fed. R. Crim. P.
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29, our review is limited to the prevention of clear and gross
injustice. See United States v. Taylor, 54 F.3d 967, 975 (1st
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Cir. 1995); United States v. McDowell, 918 F.2d 1004, 1009-10
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(1st Cir. 1990).
To determine a sufficiency challenge, we customarily
inquire whether the evidence, taken in the light most favorable
to the government a perspective that requires us to draw every
plausible inference in line with the verdict and to resolve every
credibility conflict in the same fashion permitted a rational
jury to find each essential element of the offense of conviction
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to have been proven beyond a reasonable doubt. See United States
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v. Olbres, 61 F.3d 967, 970 (1st Cir.), cert. denied, 116 S. Ct.
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522 (1995); Maraj, 947 F.2d at 522-23. In a conspiracy case, as
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in virtually any other criminal case, the government can meet
this burden by either direct or circumstantial evidence, or by
any combination thereof. See United States v. Echeverri, 982
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F.2d 675, 679 (1st Cir. 1993); United States v. David, 940 F.2d
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722, 735 (1st Cir. 1991), cert. denied, 502 U.S. 1046 (1992).
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The appellant's sufficiency challenge is lacking in
merit. Under the statute of conviction, 21 U.S.C. 846, it was
incumbent upon the government to establish that the appellant
agreed with Figueroa (and, according to the indictment, possibly
"other persons"), at least tacitly, to commit the substantive
crime heroin distribution, see 21 U.S.C. 841(a)(1) &
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(b)(1)(C) which constituted the object of their agreement, and
that he thereafter participated in the conspiracy knowingly and
voluntarily. See Echeverri, 982 F.2d at 679. The record here
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satisfies those criteria.
To be sure, the appellant makes an impassioned plea
that the evidence shows no more than a buyer-seller relationship
between him and Figueroa. We agree with the premise that
underlies this plea: a buyer-seller relationship, simpliciter,
is an insufficient predicate for a finding that the buyer and the
seller are guilty as coconspirators. See, e.g., United States v.
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Mancari, 875 F.2d 103, 105 (7th Cir. 1989) (holding that the sale
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of drugs in small quantities is inadequate, without additional
5
evidence, to support a finding of conspiracy to distribute drugs
to others because the seller could reasonably believe that such
purchases are intended for the buyer's personal use). But the
premise provides the appellant no safe harbor on the facts of
this case. While a scenario in which A sells to B (who resells
to C, D, E, and F) may signify that A and B are related only as
vendor and vendee, such a scenario may also signify a broader,
more imbricated relationship. See, e.g., United States v. Moran,
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984 F.2d 1299, 1303 (1st Cir. 1993). Knowledge and intent are at
the core of the issue. Thus, the question in such a case is
whether the evidence surrounding the transaction(s) is sufficient
to allow a fairminded jury to find beyond a reasonable doubt that
A knew that B was reselling the drugs, and intended to facilitate
the resales. See id.
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The evidence here, taken in the light most congenial to
the verdict, establishes that the relationship between Figueroa
and Santiago contained enough elements of "[c]ommon knowledge,
interdependence, [and] shared purpose," id., to support a finding
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that they were coconspirators. Figueroa testified that the
appellant had actual knowledge of the follow-on sales to Maine
residents. Two of Figueroa's customers testified that on at
least one occasion the appellant made a delivery of heroin to
Figueroa's home and met some of his clients.
The foregoing testimony was amply corroborated by the
circumstantial evidence. The appellant sold Figueroa quantities
of drugs (fifty bags per day) well beyond the outer limits of
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personal use amounts and packaged them in a manner suggestive of
intended resale. The regularity of the transactions, the
quantities of heroin, the amounts of money involved, and the
financial terms (especially the appellant's extension of credit
to Figueroa), taken together, form a sturdy foundation for a
finding that the appellant and Figueroa had at least a tacit
agreement to distribute the heroin to third parties. Since they
acted upon that tacit agreement (or so the jury could have
found), the appellant's conviction is sustainable by any measure.
Surely, it does not work an injustice.2
B.
B.
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Venue
Venue
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The appellant next asserts that he was tried in an
improper venue because he never committed a crime in the District
of Maine. This assertion is baseless. It is settled beyond
peradventure that venue is a personal privilege which can be
waived. See Fed. R. Crim. P. 18; see also Charles A. Wright,
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Federal Practice and Procedure 306 (2d ed. 1982). Here, the
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appellant consented to his removal and to the holding of the
proceedings in Maine. He submitted to trial there without ever
contesting venue. He has, therefore, waived the right to raise a
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2The appellant also claims that the evidence fails to show
that he conspired to distribute the drugs in Maine. We reject
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this claim for the reasons discussed in Part II(B), infra, and
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for the added reason that the indictment charges a drug
distribution conspiracy that took place in "Maine, Massachusetts,
and elsewhere," unanchored to a single locale.
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venue-based challenge to his conviction.3 See United States v.
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Cordero, 668 F.2d 32, 44-45 (1st Cir. 1981); see also Fed. R.
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Crim. P. 12(b)(2) (mandating waiver of most defenses that could
have been, but were not, raised prior to trial).
In all events, the argument fails on the merits. The
venue requirement is designed to prevent a criminal defendant
from having to defend himself in a place that has no meaningful
connection to the offense with which he is charged. This court
held in United States v. Uribe, 890 F.2d 554 (1st Cir. 1989),
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that in a conspiracy case venue is proper in any district in
which an act in furtherance of the charged conspiracy has taken
place, even if a particular coconspirator was not himself
physically present in that district. See id. at 558. The
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actuation of a drug distribution conspiracy culminates in the
sale and delivery of the controlled substance. Thus, any place
in which the culmination occurs provides a lawful venue for the
prosecution of the offense. See id.
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In this instance, the conspirators distributed the
heroin to Maine residents knowing that it would be introduced
into Maine and consumed there for the most part. Moreover, on at
least one occasion the appellant's cohort, Figueroa, personally
delivered heroin to a Maine locus in furtherance of the
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3The appellant's attempt to blunt this waiver by citing the
alleged ineffectiveness of his trial counsel is unavailing. We
have consistently held and today reaffirm that, absent
exceptional circumstances (not now present), a claim of
ineffective assistance of counsel cannot debut on direct appeal.
See United States v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993)
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(collecting cases), cert. denied, 114 S. Ct. 1839 (1994).
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8
conspiracy (or so the jury could have found). This single, overt
act, taking place in Maine, is itself sufficient to sustain venue
in the District of Maine. See id. at 558-59; Cordero, 668 F.2d
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at 43.
C.
C.
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Variance
Variance
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The appellant claims a prejudicial variance between the
indictment and the proof, and also claims that there was
injurious spillover from certain evidence regarding a second
conspiracy (of which he was not a member). Because these
exhortations are raised for the first time on appeal we review
them only for plain error. See United States v. Arcadipane, 41
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F.3d 1, 6 (1st Cir. 1994). A close look assures us that, under
the jurisprudence of plain error, neither allegation requires
reversal.
We start by addressing the allegation that a variance
existed between the indictment and the evidence. The genesis of
the claim is as follows. Near the end of the trial, the
attorneys presented a stipulation to the court. The stipulation
confirmed that the contraband seized from Figueroa in Maine at
the time of the denouement comprised eighty-one bags "of the
paper type" and fifty bags "of the plastic type." But the
stipulation erroneously described the drugs as marijuana rather
than heroin. It seems likely that no one noticed the misnomer
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for the court accepted the stipulation without comment, and
during closing arguments each side specifically identified the
bags as containing heroin. The appellant now claims that the
obvious error in the stipulation is a variance sufficient to
warrant vacation of the conviction. We do not agree.
The key datum surrounding a claim of variance is
whether the purported variance is sufficiently severe to affect
the substantial rights of the accused. See id. at 6-7. Passing
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the point of whether a criminal defendant ever can predicate a
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claim of variance on the introduction of evidence to which he has
stipulated, the claimed variance is more apparent than real. The
record discloses that the reference to "marijuana" was an
isolated event. The indictment, the opening statements, the
trial testimony, the summations, and the district court's jury
instructions all spoke exclusively and unambiguously of heroin
not marijuana. Moreover, there is nothing in the trial
transcript that suggests any basis for a claim that the appellant
was either misled or surprised and he has not broached any such
theory in his appellate briefs.
A criminal defendant is entitled to a fair trial, not
necessarily a perfect one. Viewed in the context of the whole
record, the misstatement is at worst the type of minor defect
that cannot plausibly be said to impact a defendant's substantial
rights. See, e.g., United States v. Fermin Castillo, 829 F.2d
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1194, 1196-97 (1st Cir. 1987) (reaching a similar conclusion when
the indictment misstated the name of the bank that issued
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material documents and mischaracterized the purpose for which
these documents were used). Since the stipulated misstatement
did not deprive the appellant of his due, plain error is plainly
lacking.
In a related vein, the appellant raises an issue of
spillover from one conspiracy to another. We find this claim
hard to follow. In virtually all cases involving allegations of
prejudicial spillover the trial involves more than one defendant
or more than one count. See, e.g., United States v. Wihbey, 75
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F.3d 761, 774-75 (1st Cir. 1996); United States v. Boylan, 898
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F.2d 230, 248 (1st Cir.), cert. denied, 498 U.S. 849 (1990).
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Here, however, the appellant stood trial alone on a single charge
and the only evidence admitted at the trial was evidence deemed
relevant to his guilt or innocence on that charge. Thus, the
claim of prejudicial spillover is a non sequitur.
In a vain effort to overcome this incongruity, the
appellant suggests that his dealings with Figueroa were entirely
distinct from Soto's dealing with Figueroa, and that the evidence
anent the Soto-Figueroa dealings "spilled over" and prejudiced
the jury against him. This view misconceives both the law of
conspiracy and the rules of evidence. It is settled that members
of a conspiracy need not all know each other, work side by side,
or otherwise march in lockstep. See, e.g., United States v.
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Sepulveda, 15 F.3d 1161, 1191 (1st Cir. 1993), cert. denied, 114
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S. Ct. 2714 (1994); United States v. Rivera-Santiago, 872 F.2d
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1073, 1079 (1st Cir.), cert. denied, 492 U.S. 910 & 493 U.S. 832
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(1989). The government's theory here, as limned in the
indictment and bill of particulars, posited a single conspiracy
with Figueroa as a linchpin. The court permitted the jury to
hear the evidence of Soto's involvement on that basis, for the
most part without objection. We discern no error in the district
court's reception of the evidence. See Fed. R. Evid. 401
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(defining relevancy); see also United States v. Nazzaro, 889 F.2d
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1158, 1168 (1st Cir. 1989) (applying abuse of discretion test to
admission of evidence).
D.
D.
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Sentencing
Sentencing
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The appellant's final claim is that the lower court
improperly applied the career offender guideline, U.S.S.G.
4B1.1, to his case. Because this supposed bevue involves the
sentencing court's interpretation of a guideline, we afford
plenary review. See United States v. Winter, 22 F.3d 15, 18 (1st
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Cir. 1994). The guideline states:
A defendant is a career offender if (1) the
defendant was at least eighteen years old at
the time of the instant offense, (2) the
instant offense of conviction is a felony
that is either a crime of violence or a
controlled substance offense, and (3) the
defendant has at least two prior felony
convictions of either a crime of violence or
a controlled substance offense.
U.S.S.G. 4B1.1 (Nov. 1992). The question before us is whether
the appellant's predicate offenses crossed the two-prior-felony-
convictions threshold established by 4B1.1.
The appellant's criminal record as disclosed in the
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presentence investigation report included (1) a conviction for
assault and battery against a police officer, (2) a conviction
for assault and battery with a dangerous weapon (a work boot),
(3) multiple convictions on narcotics charges (including a charge
of distributing heroin) stemming from a single arrest on March
20, 1990, and (4) another set of multiple convictions on
narcotics-related charges (including possession of heroin with
intent to distribute) stemming from a second arrest on April 9,
1990. The two drug arrests occurred within a few weeks of each
other and they were eventually consolidated for sentencing. The
appellant claims that this consolidation rendered the crimes we
have listed under items (3) and (4) "related cases" and meant
that they had to be treated as a single offense for purposes of
4B1.1. See U.S.S.G. 4A1.2(a)(2) & comment. (n.3). He also
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argues that because he received a sentence of under one year on
each of the assault and battery convictions, neither of them
constitutes a cognizable predicate offense. Inasmuch as the
appellant's second argument is clearly erroneous, we need not
address the question of whether the two sets of narcotics charges
constitute separate predicate offenses under the career offender
guideline.
U.S.S.G. 4B1.2(1) defines a crime of violence in
pertinent part as "any offense under federal or state law
punishable by imprisonment for a term exceeding one year that . .
. has as an element the use . . . of physical force against the
person of another." The appellant contends that neither of his
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prior convictions for assault and battery satisfy the requirement
of being "punishable by imprisonment for a term exceeding one
year" since he received a six-month sentence on each occasion.
The guideline, however, does not speak in terms of a judicial
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judgment (the length of the sentence meted out), but, rather, in
terms of a legislative judgment (the maximum punishment
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applicable to the offense). See U.S.S.G. 4B1.2, comment. (n.3)
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(Nov. 1992) (explaining that a "'[p]rior felony conviction' means
a prior . . . conviction for an offense punishable by death or
imprisonment for a term exceeding one year, regardless of . . .
the actual sentence imposed"); see also United States v. Sanchez,
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917 F.2d 607, 615 (1st Cir. 1990) (reaching the same conclusion),
cert. denied, 499 U.S. 977 (1991). The offenses occurred in
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Massachusetts, and assault and battery was punishable in that
commonwealth at the time by imprisonment of up to two-and-one-
half years. See Mass. Gen. L. ch. 265, 13A (1990). Seen in
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this light, the appellant's convictions for assault and battery
constitute predicate offenses within the purview of the career
offender guideline.4 Thus, the sentencing court did not err in
treating the appellant as a career offender.
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4The appellant argues that the later conviction for assault
and battery with a dangerous weapon should be excluded because
the "weapon" was a pair of work boots. We do not see what
possible difference flows from this distinction. For one thing,
we take a categorical approach to the examination of predicate
offenses in order to determine whether they meet the requirements
of the career offender guideline. See, e.g., Winter, 22 F.3d at
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18. For another thing, assault and battery is no less a crime of
violence because the assailant stomps his victim rather than
assaulting him in some more traditional manner.
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III.
III.
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Conclusion
Conclusion
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We need go no further. The other assignments of error
are patently meritless and do not warrant discussion. The record
reflects, without serious question, that the appellant
experienced a fair trial in a proper venue, and that he was
lawfully convicted and sentenced.
Affirmed.
Affirmed.
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