Filed: May 02, 2014
Latest Update: Mar. 02, 2020
Summary: sentences.testimony in a single case.6, We think it unlikely that the substitution of convictions, for lesser included offenses will have any effect on the sentencing, court's quantification of the $1, 000, 000 forfeiture amount. Cf., United States v. Garcia Abrego, 141 F.3d 142, 173-74 (5th Cir.
United States Court of Appeals
For the First Circuit
Nos. 12-2301
13-1339
UNITED STATES OF AMERICA,
Appellee,
v.
TOMÁS SEPÚLVEDA-HERNÁNDEZ, a/k/a TOMMY,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Aida M. Delgado-Colón, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Selya, Circuit Judges.
Irma R. Valldejuli for appellant.
Julia Díaz-Rex, Assistant United States Attorney, with whom
Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, were on brief, for appellee.
May 2, 2014
SELYA, Circuit Judge. The appeals in this criminal case
raise two questions of first impression in this circuit. The first
asks whether the statute doubling the maximum available penalty for
drug distribution in close proximity to a youth center, see 21
U.S.C. § 860(a), creates an independent substantive offense or,
instead, operates merely as a sentence-enhancing factor. We
conclude that this statute does create an independent offense. We
also conclude, however, that the evidence offered at trial was
insufficient to support convictions for that offense.
This tees up the second novel question, which asks
whether, notwithstanding that the evidence was insufficient to
ground convictions under section 860(a), the defendant can be held
to account on a lesser included offense theory under 21 U.S.C.
§ 841(a)(1). We answer this question in the affirmative.
After dispatching the remainder of the defendant's
asseverational array, we vacate the convictions and sentence under
section 860(a), order the entry of convictions under section
841(a)(1), and remand for resentencing. At the same time, we
affirm a related $1,000,000 criminal forfeiture judgment. The tale
follows.
I. TRAVEL OF THE CASE
From 2000 to 2008, defendant-appellant Tomás Sepúlveda-
Hernández was the marijuana supplier to, and a co-owner of, an open
air drug market in La Trocha Ward, Vega Baja, Puerto Rico. This
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drug point was located in close proximity to a public basketball
court.
In December of 2008, a federal grand jury indicted the
defendant, along with fifty-eight others, on charges stemming from
the distribution of marijuana and crack cocaine. For reasons that
need not concern us, the crowd thinned and the defendant stood
trial alone. Following ten days of trial, a jury found the
defendant guilty of conspiracy to possess with intent to distribute
at least 50 grams of crack cocaine and at least 100 kilograms of
marijuana (count 1), see 21 U.S.C. §§ 841(a)(1) (drug
distribution), 846 (conspiracy), as well as aiding and abetting in
the distribution of at least 100 kilograms of marijuana (count 3),
see 18 U.S.C. § 2 (aiding and abetting). On a special verdict
form, the jury indicated that the culpable activities described in
counts 1 and 3 took place "within 100 [feet] of a private or public
youth center . . . intended primarily for use by persons under 18
years of age." The jury also found against the defendant on a
related criminal forfeiture count (count 4). See 21 U.S.C.
§ 853(a). The district court elevated the defendant's offense
level in light of the jury's finding that drug sales had occurred
in close proximity to a youth center, see USSG §2D1.2(a)(1);
imposed a 210-month incarcerative sentence; and set the forfeiture
amount at $1,000,000.
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These timely appeals followed. In them, the defendant
mounts a wide variety of challenges to his convictions, his
sentence, and the forfeiture judgment. We examine these challenges
sequentially.
II. SUFFICIENCY OF THE EVIDENCE
The defendant asserts that the government's evidence was
insufficient in two respects. He argues, first, that the proof
failed to establish that the drug point operated within 100 feet of
a youth center. He argues, second, that the government failed to
prove that he had any role at all in the conspiracy.
We review preserved sufficiency challenges de novo. See
United States v. Gobbi, 471 F.3d 302, 308 (1st Cir. 2006). In
conducting our inquiry, we examine the evidence "in the light most
agreeable to the prosecution and decide whether that evidence,
including all plausible inferences extractable therefrom, enables
a rational factfinder to conclude beyond a reasonable doubt that
the defendant committed the charged crime." United States v. Ortiz
de Jesús,
230 F.3d 1, 5 (1st Cir. 2000) (internal quotation mark
omitted). We will uphold a conviction as long as the jury's
verdict "is supported by a plausible rendition of the record."
United States v. Ortiz,
966 F.2d 707, 711 (1st Cir. 1992).
A. The Charged Crimes.
The charges in this case (conspiracy and aiding and
abetting) implicate 21 U.S.C. § 860(a), which provides that any
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person who commits certain drug-related crimes "within 100 feet of
a public or private youth center" shall be "subject to [] twice the
maximum punishment" otherwise authorized. The term "youth center"
is defined as "any recreational facility and/or gymnasium
(including any parking lot appurtenant thereto), intended primarily
for use by persons under 18 years of age, which regularly provides
athletic, civic, or cultural activities." Id. § 860(e)(2). The
defendant concedes that the drug market described by the government
was within 100 feet of a public basketball court, but he insists
that the government failed to prove that the facility was "intended
primarily" for use by minors.
As a threshold matter, the parties wrangle about the
quantum of proof required to establish proximity to a "youth
center." The defendant posits that section 860(a) creates an
independent substantive offense, so that proximity to a youth
center is an element of that crime that must be proven to the jury
beyond a reasonable doubt. See United States v. Goodine, 326 F.3d
26, 28 (1st Cir. 2003) (explaining that elements of crimes must be
proven to a jury beyond a reasonable doubt). The government
demurs. It posits that proximity to a youth center is simply a
sentence-enhancing factor that must only be proven to the judge by
preponderant evidence. See
id. (explaining that sentencing factors
may be found by the judge under a preponderance standard).
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The distinction between substantive crimes and sentencing
factors can often be enigmatic. In any given case, however, this
distinction boils down to a question of statutory interpretation.
In interpreting the statute at issue here, we do not
write on a pristine page. No fewer than ten of our sister circuits
have grappled with the same question, and all of them have
concluded that section 860(a) creates an independent substantive
offense, not merely a sentence-enhancing factor. See United States
v. Osborne, 673 F.3d 508, 513 (6th Cir. 2012) (collecting cases).
We have been unable to find (and the government has not cited) any
contrary circuit court precedent.
In our view, the consensus position is correct. A
statute ought to be read as a whole. See FDA v. Brown & Williamson
Tobacco Corp., 529 U.S. 120, 132-33 (2000); O'Connell v. Shalala,
79 F.3d 170, 176 (1st Cir. 1996). Here, subsection (d) of section
860 states that persons "convicted under this section" are only
parole-eligible under certain circumstances. Similarly, subsection
(b) discusses the effects of "a prior conviction under subsection
(a)." It would be strange for Congress to describe a person as
having been "convicted" under a sentencing factor — and we do not
think that Congress indulged such an awkward locution here. Thus,
we maintain the unanimity of the courts of appeals and hold that
section 860(a) creates an independent substantive offense.
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Given this holding, our task is to plumb the record to
determine whether the evidence is sufficient to allow any rational
factfinder to conclude beyond a reasonable doubt that the
basketball court near the drug market was intended primarily for
the use of minors. The government's evidence on this point is
distressingly vague. It includes the testimony of a longtime
resident that "different people, children would go there to play,
young people, old people, adults." It also includes the testimony
of a municipal official who recounted that the court is made
available for basketball tournaments and other community uses.
Neither piece of evidence speaks to whether the facility was
"intended primarily" for the use of minors.
In an effort to fill this void, the government relies on
several surveillance videos of controlled drug buys, which show a
few children and young people (among many others) in the
background. The government's reliance is mislaid: it defies reason
to think that this video evidence has the capacity to prove that
the basketball court was intended primarily for the use of minors.
Words in a statute have consequences. "[P]rimarily"
means "essentially; mostly; chiefly; principally." The Random
House Dictionary of the English Language 1537 (2d ed. 1987). It
follows, we think, that Congress did not intend for drug sales at
specific locations to trigger sharply increased penalties simply
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because minors happen to be in the vicinity of a particular
facility from time to time.
In this case, the government has not offered a shred of
evidence that the municipality either constructed or maintained the
basketball court chiefly or principally for the enjoyment of
minors. Nor has it produced even a scintilla of evidence that the
court's regular use was mainly or mostly by minors. Given this
paucity of proof, the inference that the government asks us to draw
is insupportable.
In a Rumpelstiltskin-like effort to turn dross into gold,
the government lauds the decision in United States v. Lee, 242 F.
App'x 209 (5th Cir. 2007) (per curiam). There, the court upheld a
youth center proximity finding with respect to drug distribution
near the TEEN F.L.O.W. Youth Center in Midland, Texas. See id. at
210, 212. The court's discussion of the issue comprises only two
sentences. It states that "there was uncontroverted and
unchallenged testimony that the [center] was a 'youth center' where
children played basketball."
Id. at 212. That is far removed from
the record here — a record that contains neither evidence of the
municipality's intent to create a facility that might qualify as a
youth center nor evidence quantifying (or even estimating) the
extent to which the basketball court was used by minors.
That ends this aspect of the matter. The government has
the burden of establishing every element of a charged crime, see
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United States v. Spinney, 65 F.3d 231, 234 (1st Cir. 1995), and
carrying that burden requires more than hopeful supposition laced
with a large dose of conjecture. Because the evidence here falls
woefully short of establishing that the basketball court was
intended primarily for the use of persons under the age of 18, the
defendant's convictions under section 860(a) cannot stand.
B. The Lesser Included Offense.
Our next task is to gauge the repercussions attendant to
vacating the section 860(a) convictions. The government asks that
we direct the court below to enter convictions for lesser included
offenses — conspiring with, and aiding and abetting, the drug
distribution enterprise in violation of section 841(a)(1) (a
statute that does not include the element of proximity to a youth
center).1 The defendant resists the entry of such an order.
Congress has given the courts of appeals authority to
"affirm, modify, vacate, set aside or reverse any judgment
. . . and direct the entry of such appropriate judgment . . . as
may be just under the circumstances." 28 U.S.C. § 2106. The
courts of appeals have readily embraced the sensible practice of
using section 2106 as a vehicle for entering lesser included
offense convictions. See Rutledge v. United States, 517 U.S. 292,
1
Section 841(a)(1) makes it unlawful to "distribute . . . or
possess with intent to . . . distribute . . . a controlled
substance" knowingly or intentionally. Proof of no other or
further element is required.
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305-06 (1996) (discussing practice); United States v. Romano, 137
F.3d 677, 680-81 (1st Cir. 1998) (similar).
The existence of this authority, however, does not give
the courts of appeals free rein. To determine whether the
circumstances of a particular case create an environment suitable
for the exercise of section 2106 authority, the courts have
developed a multi-step test. See, e.g., Rutledge, 517 U.S. at 305
n.15; Allison v. United States,
409 F.2d 445, 451 (D.C. Cir. 1969)
(per curiam). Although this court has not yet had the occasion to
speak to this test, we hold today, as have many of our sister
circuits, see, e.g., United States v. Rojas Alvarez,
451 F.3d 320,
328 (5th Cir. 2006); United States v. Dhinsa,
243 F.3d 635, 674-75
(2d Cir. 2001); United States v. Smith,
13 F.3d 380, 383 (10th Cir.
1993);
Allison, 409 F.2d at 451; see also United States v.
Petersen,
622 F.3d 196, 206-07 & n.6 (3d Cir. 2010) (applying
modified version of test), that the multi-step test provides the
proper analytic framework in a section 2106 inquiry.
We synthesize the teachings of the case law. The multi-
step test demands an inquiry, first, into whether the trial
evidence fails to support one or more elements necessary to the
conviction. If not, further inquiry is unwarranted. If, however,
this first step is satisfied, we proceed to ask, second, whether
the trial evidence is sufficient to sustain each and every element
of a different offense; third, whether that different offense is a
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lesser included offense of the offense of conviction; and fourth,
whether any injustice or unfair prejudice will inure to the
defendant by directing the entry of a conviction for the lesser
included offense. We administer this test here.
In the case at hand, the first and third factors need not
detain us. As to the first factor, we already have concluded that
the evidence is insufficient to establish the youth center
proximity element of a section 860(a) offense. See supra Part
II(A). As to the third factor, it is nose-on-the-face plain that
a section 841(a)(1) violation is a lesser included offense of
section 860(a) because the elements of the former are a subset of
the elements of the latter. See United States v. Jones,
489 F.3d
243, 254 (6th Cir. 2007); United States v. Jackson,
443 F.3d 293,
301 (3d Cir. 2006); United States v. Carpenter,
422 F.3d 738, 747
(8th Cir. 2005); United States v. Kakatin,
214 F.3d 1049, 1051 (9th
Cir. 2000); United States v. Parker,
30 F.3d 542, 553 (4th Cir.
1994); United States v. Freyre-Lazaro,
3 F.3d 1496, 1507 (11th Cir.
1993); see also United States v. Fenton,
367 F.3d 14, 24 (1st Cir.
2004) (agreeing with parties' concession on point).
The second factor requires consideration of whether the
evidence would clearly support a conviction under section
841(a)(1). The defendant does not gainsay the drug market's
operation but, rather, asserts that no credible evidence
establishes that he played any part in the conspiracy.
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To counter this assertion, the government relies
principally on the testimony of a trio of cooperating
coconspirators (Sonia Ortiz, Luis Camacho, and Roy Román De Jesús).
Each of these individuals worked at the drug point in some
capacity, and each testified extensively about its operations. The
three coconspirators identified the defendant as a marijuana
supplier to, and a co-owner of, the drug point. Unless there is
some basis for disregarding it, this evidence suffices to defeat
the defendant's claim of evidentiary insufficiency.
The defendant contends, though, that this inculpatory
testimony is not creditworthy. He argues that these witnesses had
little or no personal knowledge of his role in the business but,
rather, simply parroted what they had heard from others. For
example, Ortiz testified that Jimmy Figueroa, another
coconspirator, "told me [that the defendant] is still the owner of
the drug point." Similarly, Camacho testified that Ortiz and some
pushers at the drug point had spoken to him about the defendant's
leadership role in the drug-distribution ring. Other examples
abound.
The district court admitted the disputed statements into
evidence after conducting a careful inquiry under United States v.
Petrozziello, 548 F.2d 20, 22-23 (1st Cir. 1977).2 It confirmed
2
Under Petrozziello and its progeny, "[t]he proponent of the
statement bears the burden of establishing, by a preponderance of
evidence, that a conspiracy embracing both the declarant and the
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that each out-of-court statement was made by a coconspirator during
and in furtherance of the conspiracy. See Fed. R. Evid.
801(d)(2)(E); United States v. Piper, 298 F.3d 47, 51-52 (1st Cir.
2002). The defendant neither challenges the court's Petrozziello
determinations nor articulates any plausible rationale for
disregarding those carefully compiled findings. The challenged
testimony was, therefore, not hearsay and admissible for the truth
of the matter asserted pursuant to the dictates of Rule
801(d)(2)(E). See United States v. Sánchez-Berríos,
424 F.3d 65,
74-75 (1st Cir. 2005);
Ortiz, 966 F.2d at 714-16.
Undaunted, the defendant makes the curious argument that,
even if this testimony was not excludable as hearsay, it rested on
rumor and, thus, was insufficiently reliable to warrant a guilty
verdict. This argument lacks force. Within wide limits, not
approached here, it is the jury's role — not the role of an
appellate court — to determine the weight to be given to a
witness's testimony and to assess the witness's credibility. See
defendant existed, and that the declarant uttered the statement
during and in furtherance of the conspiracy." United States v.
Bradshaw, 281 F.3d 178, 283 (1st Cir. 2002) (internal quotation
marks omitted). Such statements are typically admitted
conditionally, subject to a later finding by the court, supported
by extrinsic evidence (other than the statements themselves),
"sufficient to delineate the conspiracy and corroborate the
declarant's and the defendant's roles in it." United States v.
Piper,
298 F.3d 47, 52 (1st Cir. 2002). "The trial court's final
determination is known in this circuit as a Petrozziello
determination." United States v. Pérez-Ruiz,
353 F.3d 1, 12 (1st
Cir. 2003).
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United States v. Luna, 649 F.3d 91, 101 (1st Cir. 2011); United
States v. O'Brien,
14 F.3d 703, 707 (1st Cir. 1994). Thus, even
the uncorroborated account of a single coconspirator can ground a
conviction if credited by the factfinder. See, e.g., United States
v. Meises,
645 F.3d 5, 12 (1st Cir. 2011); United States v. Torres-
Galindo,
206 F.3d 136, 139-40 (1st Cir. 2000).
In this instance, the record contains the accounts of not
one but three participants in the conspiracy, all of whom
incriminate the defendant. The testimony of each of these
witnesses corroborates the others' testimony. The record also
contains circumstantial evidence tending to support an inference of
the defendant's participation in the drug trade, such as his
possession of a money counting machine and the presence of secret
compartments in his car.
To say more on this point would be supererogatory.
Sustaining a conviction requires only that, "eschewing credibility
judgments and drawing all reasonable inferences in favor of the
verdict," a rational jury could have found the defendant guilty
based on the proof presented. United States v. Sepulveda, 15 F.3d
1161, 1173 (1st Cir. 1993). Measured against this benchmark, the
evidence here supports a finding of the defendant's guilt with
respect to both conspiracy to commit and aiding and abetting drug
distribution simpliciter.
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This leaves only the fourth component of the test. That
factor is satisfied because, in the circumstances of this case, the
defendant would not be unfairly prejudiced by an order holding him
responsible for a lesser included offense. After all, references
to section 841(a)(1) are featured prominently in the indictment,
and all of the elements of a section 841(a)(1) charge are
encompassed within a section 860(a) charge. It follows that the
defendant had notice of those elements and both opportunity and
incentive to defend against them.3 See Smith, 13 F.3d at 383.
Here, moreover, the defendant fully availed himself of
that opportunity. He vigorously contested many of the common
elements of the charge, including the government's allegations as
to his role in the unlawful drug distribution enterprise. The
defendant offers no plausible reason to believe that his defense
would have been materially different had the indictment focused on
section 841(a)(1) rather than on section 860(a).
To cinch matters, the special verdict form yields
steadfast assurance that the jury must have found facts beyond a
reasonable doubt on all the elements needed to convict for the
lesser included offense. We conclude, therefore, that the entry of
3
The appellant did not choose to order a transcript of the
jury instructions, see Fed. R. App. P. 10(b)(1), but other
materials in the record make it appear very likely that a lesser
included offense instruction was not given. We do not pursue the
point, however, because the presence or absence of such an
instruction would not materially impact our prejudice analysis in
this case.
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a conviction under section 841(a)(1) would not work any injustice.
See Rojas Alvarez, 451 F.3d at 328-29 (vacating conviction under
section 860(a) and directing entry of lesser included offense
conviction under section 841(a)(1));
Parker, 30 F.3d at 553 (same);
Smith, 13 F.3d at 383 (same).
This brings us full circle. Because every aspect of the
multi-step test has been satisfied here, we vacate the convictions
to the extent that they embody a finding of proximity to a youth
center (section 860(a)) and direct the entry of convictions for
conspiracy and aiding and abetting with respect to the distribution
of drugs simpliciter (section 841(a)(1)).
III. ALLEGED TRIAL ERRORS
The defendant advances three claims of trial error. We
address these claims separately.
A. Alleged Prosecutorial Misconduct.
The defendant avers that the prosecutor frustrated the
fairness of his trial by making improper head and eye movements
during witness testimony, objecting indiscriminately during defense
counsel's opening statement and closing argument, and employing an
inappropriate analogy during rebuttal. Preserved claims of
prosecutorial misconduct are reviewed de novo. See United States
v. Ayala-García, 574 F.3d 5, 16 (1st Cir. 2009). Unpreserved
claims are reviewed only for plain error. See
Sánchez-Berríos, 424
F.3d at 73; see also United States v. Duarte,
246 F.3d 56, 60 (1st
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Cir. 2001) (limning plain error standard). Here, however, this
distinction is academic because we discern no error, plain or
otherwise.
We begin with the defendant's allegation that the
prosecutor nodded her head and used eye movements to indicate
agreement while cooperating witnesses were testifying, thus
simultaneously leading and vouching for them. It is a baseline
rule that a prosecutor may not "place[] the prestige of her office
behind the government's case by, say, imparting her personal belief
in a witness's veracity." United States v. Pérez-Ruiz, 353 F.3d 1,
9 (1st Cir. 2003). Head-nodding and eye movements, such as are
alleged here, theoretically can cross this line and can constitute
improper vouching. See, e.g., United States v. Collins,
78 F.3d
1021, 1039 (6th Cir. 1996); United States v. Bermea,
30 F.3d 1539,
1563 (5th Cir. 1994). Coaching witnesses through, say, head-
nodding and eye movements is different than vouching — but using
gestures for that purpose is equally improper. See, e.g., United
States v. Casas,
425 F.3d 23, 46-47 (1st Cir. 2005).
The problem here is that the defendant made no
contemporaneous objections to any instances of supposed vouching or
coaching. While he twice voiced accusations of this sort to the
district court, he waited on each occasion until days after the
challenged conduct allegedly occurred. These objections were too
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little and too late, and the record contains no evidence that any
head-nodding or other inappropriate gestures ever occurred.
Although this absence of record evidence is enough to
defeat the defendant's claim, there is more. When the defendant
voiced his belated objection for the second time, the trial judge
(an astute and experienced jurist) stated that she had "been
keeping an eye on everyone" and had not observed any impropriety.
The defendant has offered us no sound reason for second-guessing
that first-hand assessment.
The defendant next complains that the prosecutor tainted
the trial by objecting ten times during his counsel's opening
statement and seventeen times during his counsel's closing.
Although constant, overzealous, and unwarranted objections may
unfairly impair a defendant's right to a fair trial, cf. United
States v. Young, 470 U.S. 1, 13 (1985) (explaining that
"interruptions of arguments . . . are matters to be approached
cautiously"), we are unable to find any misconduct here. Most of
the objections about which the defendant complains were either
sustained by the court or elicited clarifications. The rest seem
well within the pale. Counsel should not be held to standards of
perfection, cf. United States v. Polito,
856 F.2d 414, 418 (1st
Cir. 1988) (explaining that a criminal defendant is entitled to a
fair trial, not necessarily a perfect trial), and the failed
objections here do not seem so groundless as to be vexatious.
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The defendant's caterwauling about the prosecutor's
chosen analogy fares no better. The government's case was built
largely on the testimony of three relatively low-level
coconspirators who identified the defendant as a co-owner of the
drug point. During the trial, the defendant attempted to undercut
this testimony by stressing that the cooperating witnesses had
little or no personal contact with him. In her final rebuttal
argument, the prosecutor rejoined by likening the defendant to the
chief executive officer of a large, multi-branch bank: though
ordinary branch employees may not ever see the chief executive
officer "filling up the ATM machines," they still know that "he is
the boss."
Although the defendant now argues that this analogy was
inapt, he did not object to it at trial. In this instance, the
prosecutor's analogy was not perfect — indeed, few analogies are —
but it effectively conveyed to the jury the possibility that low-
level employees can have knowledge about an organization's
leadership without having any personal interaction with the leader.
We discern no prosecutorial misconduct.4
4
In all events, an unpreserved objection to a closing
argument requires reversal of a conviction "only if the
illegitimate portion of the . . . argument so poisoned the well
that the trial's outcome was likely affected." United States v.
Taylor, 54 F.3d 967, 977 (1st Cir. 1995) (internal quotation marks
omitted). It is nothing short of fanciful to suggest that the
prosecutor's analogy might have had so damaging an effect.
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B. The Jencks Claim.
We turn now to the defendant's claim that, despite a
timely request for disclosure, the government failed to produce
certain materials, in violation of the Jencks Act, 18 U.S.C.
§ 3500. The materials comprise so-called DEA-6 reports of witness
interviews compiled by the Drug Enforcement Administration (DEA).
The Jencks Act obliges the government, once a witness has
testified, to proffer upon a defendant's timely request any
statement of that witness in its possession, whether or not
exculpatory, that relates to the subject matter of the witness's
testimony. See id. § 3500(b); see also United States v. Colón-
Díaz,
521 F.3d 29, 38 (1st Cir. 2008); United States v. Neal,
36
F.3d 1190, 1197 (1st Cir. 1994). The statute defines "statement"
to include, in addition to an adopted writing of the witness or an
exact recording of an oral pronouncement, any contemporaneously-
made recording or transcription which amounts to "a substantially
verbatim recital of a[ witness's] oral statement." 18 U.S.C.
§ 3500(e); see United States v. Gonzalez-Melendez,
570 F.3d 1, 4
(1st Cir. 2009) (per curiam). We review preserved claims of Jencks
error for abuse of discretion, see
Colón-Díaz, 521 F.3d at 39,
mindful that a material error of law invariably constitutes an
abuse of discretion, see United States v. Snyder,
136 F.3d 65, 67
(1st Cir. 1998).
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During the trial, the defendant made several requests for
Jencks material. Those requests, however, were not limited to
Jencks material but simultaneously sought material potentially
useable for impeachment (so-called Giglio material, see Giglio v.
United States, 405 U.S. 150 (1972)). These combined requests
focused on the DEA-6 reports, including those created following
government interviews of the three testifying coconspirators.
The trial judge, tramping down a well-trod path, see
Palermo v. United States, 360 U.S. 343, 354 (1959), conducted a
careful in camera review of the DEA-6 reports. She ordered
disclosure of two reports, presumably as Giglio material, which
contained potential contradictions of a government witness's
testimony. She refused to order production of the remaining
reports, impliedly finding that those reports did not constitute
Jencks material. The defendant's challenge is addressed to this
implied finding; no Giglio challenge is advanced.
We discern no abuse of discretion in the district court's
refusal to order production of the DEA-6 reports under the Jencks
Act. We have examined the DEA-6 reports that were preserved for
appellate review, and we find them to be narrative summaries
prepared by DEA agents. They are not substantially verbatim
witness accounts. We therefore conclude, as did the Fifth Circuit
when confronted with a group of DEA-6 reports, that the reports
withheld are not Jencks material at all but, rather, "short,
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concise, summaries of the witnesses' version of the facts as
recounted to the agents." United States v. Weintraub, 871 F.2d
1257, 1260 (5th Cir. 1989) (internal quotation mark omitted).
Jencks only inures to statements that can "fairly be said to be the
witness' own rather than the product of the investigator's
selections, interpretations, and interpolations."
Palermo, 360
U.S. at 350. The DEA-6 reports at issue here do not pass through
this screen.
C. Multiplication Evidence.
The defendant argues that the district court erred in
admitting certain aspects of the testimony of a forensic chemist
called by the government. The chemist, after being qualified as an
expert, testified as to the average per-bag weights of marijuana
contained in the small and large bags habitually sold at the drug
point. The defendant presses no objection to this testimony.
There was evidence, apart from the chemist's testimony,
that at least 250 bags of each size were sold at the drug point
every day over the life of the conspiracy. Using this evidence as
a foundation, the prosecutor asked the witness to perform some
basic multiplication. This included multiplying the weight that
the witness had ascribed to a typical small bag by 250
(representing daily small-bag sales), multiplying the weight
ascribed to a typical large bag by 250 (representing daily large-
bag sales), multiplying each of those subtotals by 365
-22-
(representing days in a year), and then multiplying each of those
subtotals by nine (representing years of operation). The
government elicited this testimony in an apparent effort to
estimate how much marijuana had been sold over the life of the
conspiracy.
The defendant's first objection is that this evidence had
a tendency to mislead or confuse the jury because the underlying
sales volume and years of operation were in dispute. Although the
defendant does not specifically invoke Federal Rule of Evidence
403, his argument seems to be that any probative value that the
evidence might have had was substantially outweighed by its
capacity to mislead or confuse the jury.
Appellate review of district court rulings admitting or
excluding evidence under the aegis of Rule 403 starts with a
recognition that a trial judge is in the best position to assess
the collateral effects of proffered testimony. See United States
v. Raymond, 697 F.3d 32, 38 (1st Cir. 2012). "Only rarely — and in
extraordinarily compelling circumstances — will we, from the vista
of a cold appellate record, reverse a district court's on-the-spot
judgment concerning the relative weighing of probative value and
unfair effect." United States v. Pires,
642 F.3d 1, 12 (1st Cir.
2011) (quoting Freeman v. Package Mach. Co.,
865 F.2d 1331, 1340
(1st Cir. 1988)).
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The record here offers no reason for disturbing the
district court's Rule 403 determinations. The foundational
quantity-and-time evidence relied on by the government was in the
record. Although these facts were not gospel — it remained for the
jury to decide whether to accept or reject them — the direct
examination was carefully phrased so that the chemist, by doing the
requested multiplication, was not vouching for components such as
how much business was transacted at the drug point or how long the
conspiracy lasted. And the defense was free to build its own
theory, asking the chemist on cross-examination to multiply by
smaller numbers or fewer years. It did not exploit this
opportunity.
The defendant has another string to his bow: he argues
that the multiplication evidence was incorrectly admitted as Rule
702 expert testimony. This argument, too, is futile.
The defendant posits that the testimony was outside the
chemist's field of expertise and, thus, outside the scope of Rule
702. But the Evidence Rules do "not distinguish between expert and
lay witnesses, but rather between expert and lay testimony [so] it
is possible for the same witness to provide both lay and expert
testimony in a single case." Fed. R. Evid. 701 advisory
committee's note on the 2000 amendments (emphasis in original).
The record is indistinct as to whether the challenged
multiplication testimony was admitted as expert testimony under
-24-
Rule 702 or as lay opinion testimony under Rule 701. We start,
therefore, by clarifying that point.
"The line between expert testimony under Fed. R. Evid.
702 . . . and lay opinion testimony under Fed. R. Evid. 701
. . . is not easy to draw . . . ." United States v. Colón Osorio,
360 F.3d 48, 52-53 (1st Cir. 2004). Be that as it may, we have
scant difficulty in concluding that Rule 701 is the better fit for
simple multiplication of the sort that the chemist performed here.
Lay opinion is generally thought to encompass information that can
be deduced "from a process of reasoning familiar in everyday life."
Fed. R. Evid. 701 advisory committee's note on the 2000 amendments
(internal quotation mark omitted). Simple arithmetic, such as
ordinary multiplication, is a paradigmatic example of the type of
everyday activity that goes on in the normal course of human
existence. One does not need a graduate degree in chemistry to
master multiplication: in this country, that subject is universally
taught in elementary schools. Without such a rudimentary skill,
ordinary tasks such as figuring a family's budget, shopping in a
supermarket, and converting a recipe for four into a meal for ten
would assume Herculean proportions.
The bottom line is that the district court did not abuse
its discretion in permitting the chemist to perform simple
multiplication. Nor did it abuse its discretion in admitting the
products of the chemist's multiplication as lay opinion testimony.
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IV. SENTENCING ISSUES
The defendant attempts to raise two sentencing issues.
However, the first of these is a non-issue: though the defendant
protests that his 210-month incarcerative sentence is substantively
unreasonable, our vacation of the section 860(a) convictions and
our direction to enter instead section 841(a)(1) convictions, see
supra Part II, require resentencing. See United States v. García-
Ortiz, 657 F.3d 25, 31 (1st Cir. 2011) (calling for resentencing
when partially successful appeal likely affects the "sentencing
package"). Because it is unlikely that the same sentence will be
imposed for these lesser charges, evaluating the substantive
reasonableness of the original sentence would be a purely academic
exercise. See United States v. Wallace,
461 F.3d 15, 45 (1st Cir.
2006).
This leaves the defendant's challenge to the district
court's drug-quantity determination. Even though resentencing is
required, this claim of error remains live. After all, drug
quantity is likely to form an integral part of the revised
sentencing calculus. Cf. United States v. Ventura, 353 F.3d 84, 87
(1st Cir. 2003) (explaining that drug quantity is an important
sentencing factor in narcotics cases).
In a drug conspiracy case, setting the defendant's
guideline range requires an attribution to him of the amount of
drugs that were reasonably foreseeable to him. See United States
-26-
v. Colón-Solís, 354 F.3d 101, 103 (1st Cir. 2004). We review a
sentencing court's drug-quantity attribution for clear error. See
United States v. Platte,
577 F.3d 387, 392 (1st Cir. 2009). This
review is deferential, and the district court's determination will
be upheld "so long as the approximation represents a reasoned
estimate of actual quantity." United States v. Cintrón-Echautegui,
604 F.3d 1, 6-7 (1st Cir. 2010).
The court below started from the supportable foundation
that, on average, the small bags of marijuana sold at the drug
point weighed 0.59 grams and the large bags weighed 1.51 grams
apiece. The court then explained that both kinds of bags were
delivered to the drug point in larger "bundles," with each bundle
comprising 25 bags. The drug point operated around the clock, in
12-hour shifts. The court estimated that five bundles of small
bags and two bundles of large bags were sold during a typical
shift. Noting that the drug point had operated 7 days per week, 52
weeks per year from 1999 through 2008, the court made a series of
calculations and arrived at a total drug quantity of 977 kilograms
of marijuana. In light of the defendant's status as both the
conspiracy's marijuana supplier and a co-owner of the drug point,
the court found that this quantity was reasonably foreseeable to
him.
The defendant's assault on this drug-quantity calculation
centers on the factual predicate employed by the sentencing court.
-27-
This assault starts with the court's use of a nine-year figure as
the multiplier representing the life of the conspiracy. He insists
that, regardless of how long the conspiracy lasted, no witness
dated his participation in it to any time before 2000.
Even if we accept the factual premise on which this
argument rests, the argument does not take the defendant very far.
Testimony from a coconspirator (Ortiz) places the defendant in the
conspiracy no later than the beginning of 2000; and the record
supports a finding that the defendant continued to toil within the
conspiracy until his arrest in November 2008. This is an interval
of roughly nine years, so the sentencing court's use of a nine-year
multiplier was not clearly erroneous.
The defendant next questions the district court's
conclusion that each bundle was composed of 25 bags. While he
admits that one of the coconspirators testified to this bundle
size, he points out that other coconspirators testified
differently. This argument is meritless. "[I]f there are two
plausible views of the record, the sentencing court's choice
between them cannot be clearly erroneous." United States v.
Santos, 357 F.3d 136, 141 (1st Cir. 2004).
The third branch of the defendant's attack opens a new
front. The record indicates that, after 2005, the defendant rented
the drug point to others, rather than operating it himself. He
-28-
argues that he should not be held fully responsible for the drugs
sold by his tenants.
The defendant's thesis is wrong. The relevant inquiry
for sentencing purposes is not limited to the quantity of drugs
personally handled by the defendant or his direct subordinates but,
rather, encompasses the entire quantity of drugs that the defendant
could reasonably foresee would be within the ambit of the
conspiracy. See United States v. Cortés-Cabán, 691 F.3d 1, 27 (1st
Cir. 2012), cert. denied,
131 S. Ct. 2765 (2013);
Colón-Solís, 354
F.3d at 103 & n.2. The defendant was still part of the conspiracy
while renting the drug point, and the record leaves little room to
doubt that he was aware of (and, thus, could foresee) the amount of
drugs sold by his tenants. No more was exigible to undergird the
district court's drug-quantity attribution for the period when the
rental agreement was in effect.
We add a coda. On this record, the district court's
drug-quantity finding was not only fully supportable but also
extremely conservative. The record makes manifest that a
considerable volume of crack cocaine was sold at La Trocha on the
defendant's watch. Yet, the court made no reference at all to the
defendant's culpability for this substantial amount of contraband.
V. FORFEITURE
The defendant's final claim of error relates to
forfeiture. He says that the $1,000,000 forfeiture judgment
-29-
violates the Excessive Fines Clause of the Constitution, U.S.
Const. amend. VIII.
The forfeiture in this case clearly constituted
punishment for an offense. It followed the defendant's conviction
on felony charges and was imposed as part of his sentence. See
United States v. Bajakajian, 524 U.S. 321, 328 (1998); United
States v. Heldeman,
402 F.3d 220, 223 (1st Cir. 2005). The
Excessive Fines Clause proscribes a criminal forfeiture judgment
for an amount that is "grossly disproportional to the gravity of
[the underlying] offense."
Bajakajian, 524 U.S. at 334. Because
the defendant contends for the first time on appeal that the
$1,000,000 forfeiture amount violates this proscription, our review
is limited to plain error. See United States v. Aguasvivas-
Castillo,
668 F.3d 7, 16 (1st Cir. 2012).
The question, then, is whether the forfeiture judgment is
grossly disproportional to the offenses of conviction.5 In
responding to this question, we consider "(1) whether the defendant
falls into the class of persons at whom the criminal statute was
principally directed; (2) other penalties authorized by the
legislature (or the Sentencing Commission); and (3) the harm caused
by the defendant." Heldeman, 402 F.3d at 223. When the forfeiture
judgment is less than the maximum authorized fine, a defendant who
5
For this purpose, we assume, favorably to the defendant,
that the correct comparison is to the lesser included offenses (21
U.S.C. § 841(a)(1)).
-30-
purposes to challenge its constitutionality faces an especially
steep uphill climb. Id. at 223 & n.1 (collecting cases).
We need not tarry over the first factor. Trafficking in
drugs is conduct that falls within the heartland of the criminal
forfeiture statutes. See United States v. Keene, 341 F.3d 78, 86
(1st Cir. 2003). The second factor likewise favors the government;
the maximum fine for the quantity of marijuana attributable to the
defendant is $5,000,000. See 21 U.S.C. § 841(b)(1)(B); USSG
§5E1.2(c)(4). Put in this perspective, a forfeiture judgment of
$1,000,000 raises no eyebrows.
The third factor is of a piece with the first two
factors. Drug trafficking is a scourge and is the source of untold
harm. Given the large quantity of drugs purveyed by the conspiracy
and the defendant's leading role in that conspiracy, it strains
credulity to suggest that a $1,000,000 fine is grossly
disproportionate to the harm inflicted.
The defendant has a fallback position. Although the
Bajakajian Court did not explicitly so hold, this circuit has
suggested that "it is not inconceivable that a forfeiture could be
so onerous as to deprive a defendant of his or her future ability
to earn a living, thus implicating the historical concerns
underlying the Excessive Fines Clause." United States v. Levesque,
546 F.3d 78, 85 (1st Cir. 2008). The defendant maintains that the
-31-
forfeiture judgment in this case is so extravagant as to deprive
him of his livelihood.
Like the defendant's gross disproportionality argument,
this argument was not raised below. Our review is, therefore,
solely for plain error. See Aguasvivas-Castillo, 668 F.3d at 16.
We discern none.
Assuming, without deciding, that deprivation of
livelihood can constitute a basis for setting aside a criminal
forfeiture judgment, one thing is clear: it is the defendant's
burden to establish a record at the district court level that could
sustain a deprivation of livelihood claim. See id. In this case,
the defendant has failed to make such a record.
Here, moreover, the district court made findings,
warranted by the evidence, that during the period of the
defendant's involvement the conspiracy grossed between $6,145,200
and $15,010,600 from marijuana sales alone. The defendant was an
equity partner, yet has not shown what happened to his share of the
profits. With this unanswered question dominating the landscape,
it simply cannot be said that the record compels a conclusion that
the forfeiture judgment has deprived the defendant of his
livelihood.
-32-
For these reasons, we leave the forfeiture judgment
undisturbed.6
VI. CONCLUSION
We need go no further. For the reasons elucidated above,
we vacate the defendant's convictions to the extent that they
implicate 21 U.S.C. § 860(a) and order the entry of new convictions
under 21 U.S.C. § 841(a)(1). Additionally, we reject the
defendant's other claims of error and affirm the forfeiture
judgment. Finally, we vacate the defendant's sentence and remand
for resentencing on the lesser included offenses.
So Ordered.
- Concurring Opinion Follows -
6
We think it unlikely that the substitution of convictions
for lesser included offenses will have any effect on the sentencing
court's quantification of the $1,000,000 forfeiture amount. Cf.
United States v. Garcia Abrego, 141 F.3d 142, 173-74 (5th Cir.
1998) (affirming forfeiture judgment, even if based partially on
dismissed counts, because core illegal conduct and resulting
proceeds were not implicated by the dismissals). But should the
court wish to revisit this quantification on remand, it is free to
do so.
-33-
TORRUELLA, Circuit Judge, concurring. I join in full my
colleagues' well-reasoned opinion. I write in concurrence only to
alert the district court to consider the potential impact of the
Supreme Court's decision in Alleyne v. United States, 133 S. Ct.
2151 (2013). Alleyne requires that all facts increasing a
defendant's statutory minimum sentence be proved beyond a
reasonable doubt.
Id. at 2161-63. Because neither party briefed
the potential application of Alleyne to this case, on remand the
district court is best positioned to consider whether Alleyne's
holding is relevant to Sepúlveda's sentencing under 21 U.S.C.
§ 841(a)(1) and its attendant penalty provision,
id. § 841(b)(1).
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