TORRUELLA, Circuit Judge.
Defendants Juan Laureano-Pérez ("Juan"), Jeffrey Cummings-Ávila ("Cummings"), and Christopher Laureano-Pérez ("Christopher")
We begin with a general overview of the facts and prior proceedings, reserving additional factual and procedural details for the relevant discussions below. For present purposes, it is enough to know that Defendants were members of a large drug organization operating in the Residencial Villas de Monterrey public housing project in Bayamóon, Puerto Rico (the "Housing Project") which sold a wide array of narcotics,
Cummings was initially indicted on May 30, 2012, and was charged with: possession with intent to distribute heroin, cocaine base ("crack" cocaine), and cocaine, each in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(c), 860 (Counts One through Three, respectively); possession with intent to distribute marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(D), 860 (Count Four); illegal possession of a machinegun, in violation of 18 U.S.C. §§ 922(o), 924(a)(2) (Count Five); and possession of firearms in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i), (B)(ii) (Count Six). Six months later, on November 28, 2012, a superseding indictment was returned. This superseding indictment retained the initial six charges from the May indictment but also added two more: conspiracy to possess with intent to distribute controlled substances in a protected location, in violation of 21 U.S.C. §§ 841(a)(1), 846, 860 (Count Seven), and conspiracy to possess firearms in furtherance of a drug trafficking conspiracy, in violation of 18 U.S.C. § 924(c)(1), (o) (Count Nine). It also brought charges against Christopher, Juan, and forty-one other co-conspirators.
Trial began on June 5, 2013, and after eight days of trial, Defendants were convicted on all counts. Juan and Christopher were subsequently sentenced to life imprisonment, while Cummings was sentenced to 480 months. These timely appeals followed.
Only Cummings raises pre-trial issues, and he does so both through his attorney and through a supplemental pro se filing. We address each in turn.
Cummings first argues that the district court violated his constitutional right to counsel both when it ordered the disqualification of his attorney, Jorge Armenteros-Chervoni ("Armenteros"), due to a conflict of interest and when it later refused to re-appoint Armenteros despite Cummings's attempt to waive the conflict. "We review decisions to disqualify an attorney for conflict of interest for abuse of discretion." United States v. Lanoue, 137 F.3d 656, 663 (1st Cir.1998). Here, we find no such abuse.
On June 5, 2012, the district court granted Cummings's motion to be represented by Armenteros instead of a court-appointed attorney from the Office of the Federal
Though the government never filed its formal motion, the district court held the hearing on August 14. At the hearing, Armenteros objected, arguing that the hearing was "premature ... because I don't know what is the issue or what is the intent." The district court disagreed, stating that the parties were there "to figure out the issue." The government then informed the court that it had met with Armenteros and that the government had "showed him recordings of his defendant, which proved that ... Attorney Armenteros [] was retained by another person who is not the defendant in this case." The government added that Armenteros "did not deny" that he was being paid by another person. In response to this proffer, the district court asked Armenteros about the source of his fees, but Armenteros refused to answer. Instead, Armenteros responded:
The district court once again explained that the claim was that Cummings was not paying his own attorney fees but rather that they were coming from a third party. To this, Armenteros replied that "that's not the information that I have been given." He went on to explain that he had received a $5,000 initial payment and that his relationship with Cummings "date[d] back to another case" in which he defended Cummings and was successful in having the case dismissed. Armenteros conceded that he had heard one of the recordings involving Cummings but nevertheless maintained that "the only person that I talked to is [Cummings] who told me, go and look for some money, okay, in order to get my fees."
At this point, the government interjected, explaining that it was "trying to protect... the right of the defendant" because it would create a "clear conflict of interest" if the person paying Armenteros's fees were someone who the government might require Cummings to testify against should he enter a plea. The district court agreed, noting to Armenteros that
Armenteros once again objected, arguing that he "underst[oo]d that those funds came from the defendant" and that the government's position "presupposes ... that that [third] person told me to go defend this person." Armenteros argued that "that has never been the case" and "[i]n fact, there are a million phone calls of Mr. Cummings'[s] wife asking me to go
The court then proceeded to hear the two telephone recordings of Cummings with counsel for both the government and Cummings present. In the first, Cummings spoke to Ana Saurí, Cummings's girlfriend's mother, and told her that his lawyer had come to visit him and that "they paid him the money." Saurí added that she spoke with Armenteros and asked him to get someone she called "Negrito" out of jail, to which Armenteros responded, "Don't mention that name." Cummings also informed Saurí that Armenteros had told him that if "they work with me on the money and stuff ... what I ask them in order to help you, then I will come on Monday." Later on in the call, Christopher, who had not yet been indicted, took the phone from Saurí and spoke with Cummings. Cummings thanked Christopher "a million for the attorney thing" and added that Armenteros had told him that "[t]hey gave [Armenteros] 10" and that Cummings could give Armenteros "the other 10 ... when you get out." Christopher also stated that he "was going to see if ... [he] could send something with the attorney, but it wasn't possible."
The second recording involved Cummings, Saurí, her daughter Ashley, and Christopher. In this call, Cummings asked Christopher, "what did the lawyerinski say to you?" and Christopher responded that "[h]e hasn't showed up. I have been calling him and he hasn't showed up.... [H]e came to talk about money, but he hasn't returned." Cummings once again thanked Christopher for the money, to which Christopher responded that "[t]his is not about the money, this is about being united." At the end of the call, Cummings asked Christopher to put pressure on Armenteros because he "does not come here to visit me," and Christopher responded that he will "try[] to call and contact him, but he doesn't want to talk to me.... But, everything that he tells me I will tell you."
Once the recordings were finished, the district court asked Armenteros if Cummings was "willing to answer some questions from" the court, but Armenteros declined the invitation because it was a "very dubious situation." The court emphasized that
Still, Armenteros declined. He informed the court that Cummings was "more than willing to listen to whatever the Court has to say. However, he's not in a position at this point to give any statement to the Court...." The government objected to this refusal, arguing "[t]hat's exactly the conflict of interest. The attorney is there, and I don't know if the client wants to talk to the Court or if the attorney is not letting the client."
The district court agreed:
Seeing how the court was leaning, Armenteros asked the district court to delay making a ruling, but the court refused, stating that "[i]t's made." The district court proceeded to explain its ruling as follows:
Three months later, on November 28, 2012, Cummings filed a motion requesting that Armenteros be re-appointed as his attorney. In the motion, Cummings stated that
The motion was denied on January 28, 2013.
The Sixth Amendment guarantees the right of an individual accused in a criminal prosecution to "have the Assistance of Counsel for his defence," U.S. Const. amend. VI, which necessarily includes "the right to have an attorney of one's own choosing." Lanoue, 137 F.3d at 663. This right, however, is not absolute. Id. To the contrary, because the "essential aim" of the Sixth Amendment "is to guarantee an effective advocate for each criminal defendant," Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 100
To that end, "[i]f there is a realistic potential for conflict of interest," a district court's "concern may override a defendant's Sixth Amendment right freely to choose his lawyer." Id. And while a defendant can often waive the conflict, this, too, is not absolute. See, e.g., Wheat, 486 U.S. at 158-59, 108 S.Ct. 1692; Lanoue, 137 F.3d at 663. A district court may decline to accept a defendant's waiver "not only in those rare cases where an actual conflict may be demonstrated before trial, but [also] in the more common cases where a potential for conflict exists which may or may not burgeon into an actual conflict as the trial progresses." In re Grand Jury Proceedings, 859 F.2d at 1023-24 (alteration in original) (emphasis omitted) (quoting Wheat, 486 U.S. at 163, 108 S.Ct. 1692) (internal quotation marks omitted). Still, there must be a "showing of a serious potential for conflict" to overcome the presumption in favor of a defendant's selection of counsel. Id. at 1024.
One such serious potential for conflict occurs when "a criminal defendant is represented by a lawyer hired and paid by a third party, particularly when the third party is the operator of the alleged criminal enterprise." Wood v. Georgia, 450 U.S. 261, 268-69, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981); see also United States v. Urutyan, 564 F.3d 679 (4th Cir.2009). The conflict arises because a lawyer could be inclined to "prevent his client from obtaining leniency by preventing the client from offering testimony against his former employer or from taking other actions contrary to the employer's interest." Wood, 450 U.S. at 269, 101 S.Ct. 1097.
That was the precise situation facing the district court. The government alerted the district court that it was concerned Armenteros was being paid by Christopher — the leader of the drug organization connected to Cummings's arrest — and wanted the court to inquire further. In response, the district court held a hearing in which it heard two recordings unequivocally showing that Armenteros was being paid by somebody other than Cummings, most likely Christopher, and in which it learned that any plea agreement offered by the government would necessarily entail cooperation against others, including Christopher.
Cummings next argues that due to a violation of the Speedy Trial Act, 18 U.S.C. § 3161, the district court should have dismissed Cummings's initial indictment with prejudice, thus barring the inclusion of those charges in the superseding indictment. We disagree with Cummings that the Speedy Trial Act was violated.
We review the district court's Speedy Trial Act determination de novo. United States v. Barnes, 159 F.3d 4, 9-10 (1st Cir.1998) ("Barnes I"). In doing so, we "start from scratch in the computation of excludable and nonexcludable time under the Act" by first "do[ing] the basic mathematics and determin[ing] the aggregate time elapsed awaiting trial," and then "ascertain[ing] how many days should be excluded from the total time." Id. at 10 (internal quotation marks omitted). However, we do not go hunting for nonexcludable time; exclusions of time not specifically challenged in the district court are waived on appeal. United States v. Gates, 709 F.3d 58, 67-68 (1st Cir.2013).
The Speedy Trial Act "commands that a defendant be tried within 70 days of the latest of either the filing of an indictment or information, or the first appearance before a judge or magistrate." Barnes I, 159 F.3d at 9 (internal quotation marks and citations omitted). Certain periods of time, however, are excluded from this seventy-day calculation. These include:
Id. (alterations in original) (quoting 18 U.S.C. § 3161(h)).
Here, the parties agree that we begin counting on June 15, 2012 — the date of Cummings's arraignment
Number
Date(s) of Days Reason
June 15, 2012 1 Arraignment — a "proceeding[] concerning the
defendant." Id. § 3161(h)(1).
June 20, 2012 — June 25, 6 Motion for Rule 404(b) disclosures — a "pretrial
2012 motion, from the filing of the motion through ...
disposition." Id. § 3161(h)(1)(D).
June 25, 2012 — June 27, 27 Motion for continuance. Id. § 3161(h)(7).
2012
July 3, 2012 — July 9, 2012 7 Continuance.8 Id.
July 9, 2012 — July 26, 2012 179 Motion for discovery — a "pretrial motion, from the
filing of the motion through ... disposition." Id.
July 23, 2012 — August 14, 1910 Motion to disqualify counsel — a "pretrial motion,
2012 from the filing of the motion through ...
disposition." Id.
August 21, 2012 1 Status conference — a "proceeding[] concerning the defendant." Id. § 3161(h)(1). September 7, 2012 1 Status conference — a "proceeding[] concerning the defendant." Id. September 8, 2012 — 13 Time between request for status conference and September 20, 2012 holding of status conference. 11 September 21, 2012 1 Status conference — a "proceeding[] concerning the defendant." Id. October 18, 2012 1 Status conference — a "proceeding[] concerning the defendant." Id. October 24, 2012 — October 3 Motion by Cummings — a "pretrial motion, from 26, 2012 the filing of the motion through ... disposition." Id. § 3161(h)(1)(D). October 30, 2012 — 17 Cummings pro se motion asserting his right to a November 15, 2012 speedy trial — a "pretrial motion, from the filing of the motion through ... disposition."12 Id. November 8, 2012 — 1313 Government continuance.14 Id. § 3161(h)(7). November 28, 2012
Adding all of these days together, 102 days were excludable. This leaves sixty-five nonexcludable days, five less than the permitted seventy. Accordingly, the Act was not violated.
In his pro se brief, Cummings argues that the superseding indictment was flawed in two key respects. First, he alleges that because the § 922(o) charge (Count Five) failed to provide proper notice of what the government considered a machinegun and what statute made it illegal, his Fifth Amendment right to due process was violated. Second, he claims that the superseding indictment's reference to "crack" cocaine in Counts Two and
"An indictment is legally sufficient if it `first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.'" United States v. Berk, 652 F.3d 132, 137 (1st Cir.2011) (quoting United States v. Cianci, 378 F.3d 71, 81 (1st Cir.2004)).
Here, Count Five of the superseding indictment alleges that
This description contains all of the elements of Section 922(o)(1),
That the superseding indictment only quotes the language of § 5845(b) without citing to the statute directly does not alter this conclusion.
Accordingly, we find no error with Count Five of the superseding indictment.
In Counts Two and Seven of the superseding indictment, the government charged Cummings with possession with intent to distribute cocaine base and conspiracy to possess with intent to distribute cocaine base (and other narcotics), respectively. In Count Two, the superseding indictment states that Cummings "did knowingly and intentionally possess with intent to distribute a measurable amount of a mixture or substance containing a detectable amount of cocaine base (`crack')...." Count Seven, meanwhile, states that forty-four conspirators, including Cummings, "did knowingly and intentionally combine, conspire and agree with each other ... to possess with the intent to distribute ... two-hundred and eighty (280) grams or more of a mixture or substance containing a detectable amount of cocaine base (`crack')...." According to Cummings, the inclusion of "crack" renders the superseding indictment insufficient because DePierre "decriminalize[d] certain individual's conduct ... [which] would have otherwise been aggravated violators."
Cummings, however, badly misreads DePierre. In DePierre, the Supreme Court "h[e]ld that the term `cocaine base' as used in § 841(b)(1) means not just `crack cocaine,' but cocaine in its chemically basic form." 131 S.Ct. at 2237. In other words, the Supreme Court expanded the meaning of cocaine base to include other forms of cocaine in addition to crack cocaine.
Counts Two and Seven of the superseding indictment charge possession with the intent to distribute and conspiracy to possess with the intent to distribute cocaine base. The parenthetical inclusion of "crack" simply specified which form of cocaine base was at issue. There is nothing improper about this practice.
Defendants also present a number of alleged errors they claim occurred during the trial itself. We address each in turn, noting that unless otherwise stated, the
Defendants claim that various pieces of evidence — the testimonies of Marco A. Díaz Narváez ("Díaz"), Carlos Rivas Serrano ("Rivas" or "Gordo"), and Officer Luis Vázquez Torres ("Officer Vázquez"), and the two phone calls between Cummings and Christopher — were improperly admitted. As explained in more detail below, all of the evidence was admissible.
Díaz was a member of the conspiracy who agreed to cooperate with the government. According to Díaz, he was a seller in the organization and would also store guns for Christopher. After discussing his involvement, Díaz testified about three specific instances. The first two involved "rounds" with Juan. During these "rounds," Díaz — driving Cummings's car — would take Juan to a specified location, find the person they were looking for, beat the person up, put the person in the trunk of Cummings's car, and then drive for a while before letting Díaz out and continuing to drive onward with the victim in the trunk. Díaz testified that he never knew in advance where they were going, who they were looking for, or why they were looking for that person. Rather, he just followed Juan's instructions, which were being carried out on Christopher's behalf. Díaz added that Juan was armed both times and that Christopher was the leader of the conspiracy.
The third incident occurred one night in the Housing Project. According to Díaz, he had been on duty selling drugs late one night when he heard two shots. Shortly thereafter, Juan and Christopher appeared and enlisted Díaz's help putting a young man with a gunshot wound in his leg into a car. Díaz testified that he was later told that Juan had shot the young man — who was not from the Housing Project — twice at Christopher's behest.
Defendants contend that this testimony was irrelevant and thus should have been excluded. Because they made this objection at trial, we review for abuse of discretion. United States v. Richardson, 421 F.3d 17, 37 (1st Cir.2005). Contrary to Defendants' assertion, however, the testimony was relevant.
We reject Defendants' suggestion that Díaz's testimony shows that the "rounds" were not part of the drug conspiracy. Though Díaz did testify about the "rounds" in response to questions from the prosecutor about actions "aside from the drugs," a review of the transcript as a whole makes clear that the "rounds" were related to the drug organization. Given this relationship, there is little question that the testimony was relevant. See Fed. R.Evid. 401 ("Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action."). The testimony helped establish a connection between Defendants — Juan, acting on Christopher's orders, used Cummings's car — and between Defendants and the drug conspiracy — the rounds, being conducted by Juan on Christopher's behalf, were in connection to the drug organization. It also helped to prove at least two allegations in the indictment — that the roles of Christopher and Juan were leader and enforcer, respectively, and that the leaders of the organization would use force, violence, and intimidation in order to
As a fallback position, Defendants contend that even if the evidence was relevant, it should still have been excluded as unfairly prejudicial under Rule 403 of the Federal Rules of Evidence. Defendants never raised this objection below, and thus we review for plain error. Id. at 95; see also United States v. Ciresi, 697 F.3d 19, 26 (1st Cir.2012). Under any standard, however, this argument fails. Evidence is only excluded under Rule 403 "if its probative value is substantially outweighed by the danger of unfair prejudice.'" United States v. Varoudakis, 233 F.3d 113, 121 (1st Cir.2000) (quoting Fed.R.Evid. 403). And "unfair prejudice" is often reserved for "evidence that invites the jury to render a verdict on an improper emotional basis" or for evidence that is "shocking or heinous" and "likely to inflame the jury." Id. at 122 (internal quotation marks and citations omitted). Díaz's testimony does none of these things, and thus its admission was not unfairly prejudicial.
Like Díaz, Rivas was also a member of the conspiracy who chose to cooperate with the government. Rivas's testimony focused mostly on Christopher. First, Rivas described an incident where Christopher had a "problem" because "some people ... shot at his car with his kids in it" while they were traveling near a bakery. According to Rivas, in response to this attack, Christopher and "Coquito" and "Monchi" — two of the drug conspiracy's "triggermen" — went in search of the shooters. Rivas testified that he knew all three were armed because "[h]e was always armed every time that they would go out to solve a problem" and "they weren't going out to the shopping mall to look for clothing. They were going out to look for the enemy."
Like with Díaz's testimony, Defendants allege that Rivas's testimony is both irrelevant and unfairly prejudicial. However, neither of these objections was raised below, so we review for plain error.
During Officer Vázquez's testimony, a video was played showing Christopher and others attending the funeral of Miguel Ruiz Sánchez ("Miguel") at the Housing Project. Officer Vázquez commented on the video, explaining that "[a]ccording to [his] investigation, Miguel Ruiz Sánchez was one of the leaders" of the conspiracy and that the reason some of the individuals were seen in the video picking up shell casings from the basketball court at the Housing Project was because "according to [their] investigation, the previous day they were having a wake ... for Miguel Ruiz Sánchez inside the project." The officer then proceeded to identify one of the individuals in the video as Antero Rivero Marrero ("Rivero").
On cross-examination, Officer Vázquez testified that according to his investigation, Rivero "was serving as an escort" for Christopher because Christopher "feared for his life, and ... was hot in the street." On re-direct examination, the government asked Officer Vázquez about Rivero's escort services. Officer Vázquez testified that Rivero had a fictitious license to escort dignitaries and agreed with the statement that no license would permit possession of the two AK-47 rifles that were seized from Rivero because it is not legal "to carry firearms to protect a drug trafficker."
Defendants once again challenge the relevance and undue prejudice of this testimony. Once again, our review is for plain error, and, once again, their challenge fails. See Ciresi, 697 F.3d at 26. Both pieces of evidence — the picking up of the shell casings and the questioning into Rivero's escort services — are relevant.
Regarding the shell casings, the evidence is relevant for two reasons. First, the testimony connects Christopher with Miguel, who was known to be a leader of the drug organization. By establishing that Christopher was sufficiently connected to Miguel to attend his funeral, the evidence supported the conclusion that the two were part of the same organization. Second, the collection of the shell casings helps support the allegation that the organization used weapons (thus providing evidence of the gun-related conspiracy charge) and that the conspirators were familiar with the firearms. See Fed. R.Evid. 401; Rivera Calderón, 578 F.3d at 95-96. Once again, nothing about this testimony was unfairly prejudicial. See Varoudakis, 233 F.3d at 122.
As to the testimony regarding Rivero, the majority of this testimony was relevant for much the same reason as the testimonies already discussed: it helped establish Christopher's role as a leader in the organization since a low-level conspirator would likely not need the level of protection that Christopher needed. And though the district court could have in its discretion applied Rule 403 to exclude Officer Vázquez's agreement that it was not legal for Rivero to "carry firearms to protect a drug trafficker," its failure to do so does not constitute plain error, especially given our "great deference" to a district court's 403 rulings. See id. In any event, this one comment was harmless given all of the other evidence presented. See United States v. Landrón-Class, 696 F.3d 62, 68 (1st Cir.2012).
As mentioned above while discussing the disqualification of Cummings's counsel, two conversations involving Cummings were recorded while he was detained at the Metropolitan Detention Center ("MDC"), Guaynabo. In both calls — one on June 5, 2012, and one on July 14, 2012 — Cummings spoke with Christopher, who had not yet been arrested. Besides discussing the payments to Cummings's counsel, the two also discussed whether Juan was looking for "Gordo" — recall, this is Rivas's alias. Cummings informed Christopher that Juan was working in the kitchen at MDC, Guaynabo and had been looking for Rivas but was unable to find him. In addition, Cummings and Christopher spoke about the attack on Christopher and his family outside the bakery, specifically focusing on the fact that other members of their organization had advance knowledge of the attack and that there would be retaliation against those who shifted loyalties.
Juan objects to the admission of the two phone calls on hearsay grounds. Because he failed to object when the statements were first admitted and at the close of evidence, we review for plain error.
Though hearsay evidence is generally inadmissible in criminal trials, Rule 801(d)(2)(E) of the Federal Rules of Evidence "provides that a statement made by a defendant's coconspirator `during the course of and in furtherance of the conspiracy' may be introduced as the nonhearsay admission of a party opponent." Id. (quoting Fed.R.Evid. 801(d)(2)(E)). For a statement to qualify, the declarant and the defendant must be members of a conspiracy when the statement was made and the statement must have been made in furtherance of the conspiracy. Id.
The calls here meet both requirements. As to the first, the government provided significant evidence that Juan, Cummings, and Christopher were all members of the same drug organization — and thus the same conspiracy — and there is nothing in the record to suggest that any Defendant affirmatively withdrew from the conspiracy. See United States v. Piper, 298 F.3d 47, 52 (1st Cir.2002) ("Where a conspiracy contemplates a continuity of purpose and a continued performance of acts, it is presumed to exist until there has been an affirmative showing that it has terminated." (internal quotation marks omitted)).
As to the second requirement, the calls did in fact further the ends of the conspiracy. At the time of the calls, Cummings and Juan had been arrested but Christopher had not, and the evidence showed that the conspiracy was still ongoing at the Housing Project. For example, Officer Vázquez testified that surveillance continued until November 2012, months after the
Given that the organization was still operating, the calls can reasonably be interpreted as promoting the conspiracy. Cummings and Christopher discussed how certain members of the conspiracy — such as Rivas — knew that Christopher was going to be attacked and that Christopher was contemplating retaliating against those who were disloyal. Maintaining loyalty from others clearly promotes the conspiracy. See Ciresi, 697 F.3d at 30 (finding that statements "served to placate ... and forestall any dissension" were in furtherance of the conspiracy); Elwell, 984 F.2d at 1293.
The calls, therefore, properly qualify as co-conspirator statements and were thus properly admitted.
Next, Defendants claim that Officer Vázquez and Federal Bureau of Investigation ("FBI") Special Agent David James provided improper overview testimony. Overview testimony occurs, for example, when "a government witness testifies about the results of a criminal investigation, usually including aspects of the investigation the witness did not participate in, before the government has presented supporting evidence." United States v. Rosado-Pérez, 605 F.3d 48, 55 (1st Cir.2010). We have repeatedly condemned the use of such tactics, finding it "inherently problematic" for a number of reasons. United States v. Casas, 356 F.3d 104, 119 (1st Cir.2004); see also United States v. Flores-De-Jesús, 569 F.3d 8, 14 (1st Cir.2009). First, because it is possible that "evidence promised by the overview witness never materializes," Flores-De-Jesús, 569 F.3d at 17, the testimony "raises the very real specter that the jury verdict could be influenced by statements of fact or credibility assessments" not in evidence, Casas, 356 F.3d at 119. Second, it is similarly possible that subsequent testimony will differ from the assumptions of the overview witness. Id. at 119-20.
Though our concerns with overview testimony are applicable regardless of the witness involved, our skepticism is enhanced when the witness is a law enforcement official because "juries may place greater weight on evidence perceived to have the imprimatur of the government." Id. at 119. As we explained in Flores-De-Jesús, "overview testimony of a law enforcement official is not simply a repetition (at best) of other evidence. It is also, in effect, an endorsement of the veracity of the testimony that will follow." 569 F.3d at 18. Moreover, a law enforcement official is likely to "express opinions as to defendants' culpability based on the totality of information gathered in the course of their investigation," even though the official did not have personal knowledge. Id. at 19 (alterations omitted) (internal quotation marks omitted). Such testimony is inadmissible and effectively serves to usurp the role of the jury because the witness's inference is based on the same circumstantial evidence presented to the jury. United States v. Meises, 645 F.3d 5, 16 (1st Cir.2011).
With that background in place, we now turn to the contested testimony here.
Defendants never objected that Officer Vázquez was providing overview testimony,
Officer Vázquez testified during the first two days of trial. In explaining his involvement in the investigation, Officer Vázquez told the jury that he led the Bayamón Strike Force which was tasked with, among other things, conducting video surveillance. This video surveillance, he explained, occurred over fifteen days. On twelve of those days, Officer Vázquez was either personally operating the camera or assisting a colleague in doing so; on the other three days, Officer Vázquez was on the ground surveilling the Housing Project.
In addition to authenticating the clips from the fifteen-day surveillance, Officer Vázquez also described what the clips were portraying. He told the jury that the surveillance was directed toward "the site that we had identified as the drug point" and that the video clips represented "all persons that appear[ed] engaged in a criminal activity at that point in time." For each video clip, he would point out all of the individuals present — noting their role in the drug organization — as well as the controlled substances, firearms, and other objects which could be seen. For example, in one clip, Officer Vázquez explained to the jury that they were viewing Cummings holding "a package with a number of baggies inside with a white content." The rest of the clips contained similar commentary.
Contrary to Defendants' contention, this was not a "new variation" of overview testimony derived by the government. In fact, it was not "overview" testimony at all. Officer Vázquez was present at each and every surveillance — either behind the camera or in front of it — and thus was simply testifying about his own observations based on his personal knowledge. And while he did note the apparent roles each Defendant played in the organization, he never expressed an opinion as to their culpability. Cf. Flores-De-Jesús, 569 F.3d at 19 ("When a law enforcement witness expresses opinions as to defendants' culpability based on the totality of information gathered in the course of their investigation, these conclusory statements often involve impressible lay opinion testimony...." (alterations omitted) (internal citation and quotation marks omitted)). Appropriate testimony does not become improper overview testimony just because one law enforcement official was present throughout the entire investigation and is then called to walk the jury through the investigation from beginning to end. See United States v. Valdivia, 680 F.3d 33, 48 (1st Cir.2012) ("[F]ar from being a scripted `overview' of the government's case by uninvolved agents, the testimony represented the fruits of first-hand police work."); Rosado-Pérez, 605 F.3d at 55-56 (finding testimony to be proper where agent was lead investigator, participated in surveillance and controlled drug buys, and testified only on the basis of personal observations).
Moreover, none of the problems generally associated with overview testimony are present here. Because Officer Vázquez was providing a first-hand account of his observations, while simultaneously playing the video clips of those surveillances, there is no concern that the evidence being testified to would never materialize. Nor is there a worry that Officer Vázquez would make assumptions disputed by later testimony. Cf. Flores-De-Jesús, 569 F.3d at 17; Casas, 356 F.3d at 119.
Accordingly, the testimony was proper.
Unlike with Officer Vázquez, there was an objection to the district court's decision to allow Agent James to elaborate and clarify his testimony. Accordingly, our review is for abuse of discretion. Rosado-Pérez, 605 F.3d at 54.
Agent James was called as part of Christopher's case-in-chief in an attempt to discredit Rivas, one of the government's cooperating witnesses. Rivas had testified during the government's case that Christopher was a leader of the organization, but in a pre-trial interview with Agent James, Rivas had not named Christopher when listing the organization's leadership. Accordingly, Christopher's attorney asked the agent to read a paragraph from his interview report which had memorialized the conversation. After reading the paragraph, Agent James attempted to clarify the report. He explained (over Christopher's objection) that while the report reflected Rivas's initial interview, he "of course corroborated this with other intelligence." He then proceeded to summarize this intelligence:
Unlike Officer Vázquez's testimony, this testimony was potentially problematic for two reasons. First, Agent James made clear that he was not testifying about his personal knowledge of "Negro" but rather was summarizing everything the investigation had uncovered. Second, the "context" he provided was well beyond the scope of the question asked.
Whether this qualifies as improper "overview testimony," however, is a determination we need not make because any error that may have occurred was harmless. Agent James testified as part of Christopher's case-in-chief, well after the government had already rested. Thus, most — if not all — of the evidence Agent James referred to had already been introduced by other witnesses. At the very least, the government had provided evidence that Christopher and "Negro" were the same person and that there had been an attempt on Christopher's life. Given the timing of this testimony and the fact that the same evidence had previously
Defendants next allege that numerous actions by the district court show that it was biased against them, and that this bias deprived them of a fair trial. When reviewing claims of judicial bias, we "must evaluate the judge's actions `according to a standard of fairness and impartiality, recognizing that each case tends to be fact-specific.'" Logue v. Dore, 103 F.3d 1040, 1045 (1st Cir.1997) (quoting United States v. Polito, 856 F.2d 414, 418 (1st Cir.1988)). That being said, it is important to consider "isolated incidents in light of the entire transcript so as to guard against magnification on appeal of instances which were of little importance in their setting." United States v. Candelaria-Silva, 166 F.3d 19, 35 (1st Cir.1999) (internal citation and quotation marks omitted).
Here the allegations take three general forms: (1) endorsement of government witnesses through additional questions by the district court; (2) hostile statements made to Juan by the district court; and (3) adverse judicial rulings. These sorts of claims will only be successful if the party alleging bias can show "serious prejudice." Logue, 103 F.3d at 1045. After thoroughly reviewing the record, we reject the contention that these actions — either taken independently or together — rise to the level of legally cognizable judicial bias by the district court.
Defendants first argue that the district court continually questioned witnesses and interjected comments which improperly bolstered their testimony, thus lessening the government's burden and evincing bias towards them. Because no Defendant objected to the district court's practice of asking questions or to any of its specific comments, we review for plain error. United States v. Fernández, 145 F.3d 59, 63 (1st Cir.1998).
During trial, the district court asked witnesses a number of questions and made a variety of comments. These included the following:
"It is well-established that a judge is not a mere umpire" and accordingly "has a perfect right — albeit a right that should be exercised with care — to participate actively in the trial proper." United States v. Ofray-Campos, 534 F.3d 1, 33 (1st Cir.2008). This includes asking questions "to elicit facts to facilitate a clear presentation of the issues." United States v. Meléndez-Rivas, 566 F.3d 41, 50 (1st Cir.2009) (internal quotation marks omitted). Still, a district court needs to "be balanced; [it] cannot become an advocate or otherwise use [its] judicial powers to advantage or disadvantage a party unfairly." Id. (internal quotation marks omitted). So as long as the court "preserves an attitude of impartiality and guards against giving the jury an impression that the court believes the defendant is guilty," it may question witnesses. United States v. Rosario-Peralta, 199 F.3d 552, 560 (1st Cir.1999).
Here, Defendants point to the district court's comments during the testimonies of Díaz, Rivas, Officer Rivera, Officer Cruz, and Agent González to support their claim of bias. However, Defendants conveniently ignore the district court's comments and questions to Officer Rivera and Officer Cotto and its question to Agent González regarding the legality of purchasing high-capacity magazines which show a much more balanced approach to questioning.
Taken together, these questions and comments show that the district court asked questions which were helpful (and unhelpful) to both sides. For example, it asked Agent González about the purpose
We also disagree with Defendants that reminding the cooperating witnesses of their requirement to be truthful was "bolstering the prosecution." If anything, these warning should help Defendants, since if the witnesses had a motivation to lie — which is the focus of the typical cross-examination of a cooperating witness — the district court's comments could have scared the witnesses into telling the truth. The same can be said for the district court's action of sustaining Juan's objection to the government's attempt to follow up on Díaz's "safety" comment.
Similarly, we fail to see how the district court was bolstering the prosecution by explaining its reasoning for finding Officer Rivera and Agent González qualified to answer the government's questions. There is a difference between objectively stating the officer's qualifications to answer a question on the one hand and suggesting that the officer's testimony is to be given enhanced weight and credibility because of these qualifications on the other. Here, the district did the former while avoiding the latter.
While all of these interjections may have highlighted issues Defendants would rather the jury not have focused on, that does not mean that the district court improper bolstered witnesses, nor does it indicate bias. See Rosario-Peralta, 199 F.3d at 560.
Finally, we add that even if the questions did mistakenly give the jury an impression of bias, cf. United States v. Rivera-Rodríguez, 761 F.3d 105, 121 (1st Cir. 2014), any prejudice was cured by the district court in its closing instructions, where it specifically instructed the jury on this issue:
We have previously held that similar jury instructions were sufficient to dispel any impressions that a district court's questioning may have caused, and we see no reason to depart from those holdings here. See Ayala-Vázquez, 751 F.3d at 25, 26; Rivera-Torres v. Ortiz Vélez, 341 F.3d 86, 100 (1st Cir.2003); cf. Meléndez-Rivas, 566 F.3d at 51 n. 10 ("There was, for
Juan also argues that the district court was specifically biased against him.
Once during jury selection and again during the trial, the district court observed Juan staring at the jury. Thinking that this was an attempt to intimidate them, the district court sent Juan's counsel a note warning Juan not to stare at the jury. Also during the trial, Juan alerted the district court that he believed the prosecutor was making improper hand signals to witnesses. When the issue was discussed outside the presence of the jury, the district court rejected the allegation, telling Juan that it was observing the prosecutor and it did not see any improper signaling. Juan was unconvinced, and asked the court for permission to "raise his hand" when he saw the prosecutor making these signals. The district court was having none of it, though, and chastised Juan for this request. It told Juan to not even think about it and threatened that if he "dare[d] to disrupt th[e] courtroom," the district court would "force" Juan into his chair or make him watch the trial "in front of a TV set in the jail."
"[J]udicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge." Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994). There is a difference "between expressions of impatience, annoyance or ire, on the one hand," which are permissible, "and bias or partiality, on the other hand," which are forbidden. Candelaria-Silva, 166 F.3d at 35 (internal quotation marks omitted).
Here, the allegations raised by Juan fall into the former category. Both actions — warning Juan not to stare at the jury and prohibiting him from "raising his hand" in the middle of questioning by the government — are simply efforts at courtroom administration which are well within the district court's discretion. Liteky, 510 U.S. at 556, 114 S.Ct. 1147. Even the district court's alleged threat that if Juan "dare[d] to disrupt th[e] courtroom," the district court could "force" Juan into his chair or make him watch the trial "in front of a TV set in the jail" is nothing more than an attempt to get Juan to behave and not disrupt proceedings. To be sure, these admonishments are stern and somewhat harsh. But that alone is insufficient to establish bias. See id. ("A judge's ordinary efforts at courtroom administration — even a stern and short-tempered judge's ordinary efforts at courtroom administration — remain immune."); Candelaria-Silva, 166 F.3d at 35.
Moreover, the district court went out of its way to ensure that the jury did not become aware of these admonishments — it sent notes to Juan's counsel instructing Juan not to stare at the jury, and the discussion involving Juan raising his hand occurred at a sidebar. Given this discretion, we fail to see how Juan was prejudiced
Finally, Juan and Cummings (through his supplemental pro se brief) also contend that the district court was biased in its treatment of Juan's allegation of improper contact between the prosecutor and a juror.
During trial, Juan's counsel advised the district court of an alleged prohibited contact between the prosecutor and a juror in the cafeteria in which the two discussed the weapons in the case. In response, the district court questioned the prosecutors and the court security officer, all of whom denied the contact. It also agreed to hear the testimony of a witness, but would only do so in open court since the public had a right to know what was occurring. When Juan's counsel proffered that the witness was unwilling to do so (but would testify to the court in chambers), the district court denied the motion, finding the allegation was unsubstantiated and "smells like a red herring." It added that "it is natural for somebody who is in that circumstance to try to do whatever it takes to try to derail the procedure" and that it would "believe the word of an official Assistant U.S. Attorney, two of them, that says this did not happen."
There is nothing here to suggest bias on the part of the district court. The court took the allegation seriously and was willing to hold a hearing. It questioned the Assistant U.S. Attorney and the court security officer, and it was willing to question another witness as well. That the district court refused to close the courtroom to question this witness does not show bias; rather, it is just an example of the district court exercising its "wide discretion to determine the scope of [a] resulting inquiry and the mode and manner in which it will be conducted." United States v. Paniagua-Ramos, 251 F.3d 242, 250 (1st Cir.2001). Juan and Cummings simply disagree with the court's resolution
Even though each of the allegations raised by Defendants does not, on its own, show bias, we must still consider whether these allegations in the aggregate demonstrate judicial bias. See Candelaria-Silva, 166 F.3d at 35; Logue, 103 F.3d at 1045. After a thorough review of the record, we are convinced that they do not. These isolated events, none of which showed bias, did not somehow combine to create such a biased atmosphere that Defendants were arguments regarding judicial bias. And because we find no credible claim for judicial bias, the district court did not abuse its discretion in denying Defendant's recusal motion due to bias. See United States v. Pulido, 566 F.3d 52, 62 (1st Cir.2009) ("We review a ruling on a motion to recuse for abuse of discretion.... [and] will sustain the district court's ruling unless we find that it cannot be defended as a rational conclusion supported by [a] reasonable reading of the record." (internal quotation marks omitted)).
Counts Five and Six of the superseding indictment charged Cummings with illegal possession of a machinegun and possession of firearms (including machineguns) in furtherance of a drug trafficking crime, respectively. Cummings challenges his convictions on these counts, arguing that the evidence was insufficient to establish his knowledge that the firearms were machineguns. We review these sufficiency claims de novo. United States v. Shaw, 670 F.3d 360, 362 (1st Cir.2012).
On May 2, 2012, while executing a search warrant at the Housing Project, law enforcement officials discovered a closed red and black bag in Cummings's apartment. The bag contained four firearms, two of which were .40-caliber Glock pistols with visible, external chips which converted the pistols into automatic firearms. During his subsequent interrogation, Cummings admitted that he often "stored weapons and drugs for the organization" and was going to be paid "around $400" for storing this particular bag. At trial, Rivas, one of the cooperating witnesses, testified that he had seen Cummings testing fully automatic weapons, including a black pistol which was "either a.40 or .45" caliber.
In reviewing claims of insufficiency, "we consider the evidence, including all reasonable inferences drawn therefrom, in the light most favorable to the jury's verdict." Id. So long as "any reasonable jury could find all the elements of the crime beyond a reasonable doubt, we must uphold the conviction." United States v. Lizardo, 445 F.3d 73, 81 (1st Cir.2006).
Here, Cummings concedes that the evidence established that he possessed firearms and possessed firearms in furtherance of a drug-trafficking crime. He argues, however, that the evidence was insufficient to establish the additional element that he knew the firearms had been modified to fire automatically, thus bringing them under the definition of a machinegun. See United States v. Nieves-Castaño, 480 F.3d 597, 599 (1st Cir.2007)
Though a close call, we disagree. This case is quite similar to a previous case, United States v. Azubike, in which a defendant convicted of conspiracy to possess with the intent to distribute narcotics argued that while the evidence established that he knew the suitcase he was transporting contained something illegal, the evidence was insufficient to prove beyond a reasonable doubt that he knew the suitcase contained a controlled substance. 564 F.3d 59, 61-62, 64 (1st Cir.2009) ("Azubike II"); 504 F.3d 30, 32-36 (1st Cir.2007) ("Azubike I"). Two separate panels of this court upheld the conviction on sufficiency of the evidence grounds,
Many of those same factors are present here. First, Cummings admitted during his interrogation that he often stored guns and drugs for the organization. The repetitive nature of this process (his modus operandi) could lead a jury to infer that simply by being handed the bag and being told how much he would be expected to be paid, Cummings would understand what the bag contained.
Second, the fact that Cummings had stored weapons and drugs before suggests that he was trusted by his co-conspirators, and positions of trust often come with increased access to information. See Azubike I, 504 F.3d at 37 ("[A] reasonable inference of knowledge arises when the defendant is trusted with possession of a large amount of drugs. This is because drug organizations do not usually take unnecessary risks by trusting critical transactions to outsiders."); see also Azubike II, 564 F.3d at 65.
Third, the evidence established that Cummings and Christopher — one of the leaders of the organization — were close. First, remember the phone calls between Christopher and Cummings while Cummings was incarcerated. Not only did Christopher attempt to pay for Cummings's counsel, but he also confided in Cummings that he believed members of the organization knew that Christopher was going to be targeted, and that retribution would be taken on those who were not loyal. Second, Díaz testified that he would use Cummings's car when going on rounds for Christopher. That Cummings was willing to give up his car so that Christopher could order these activities further supports a close relationship between the
Finally, Rivas testified that Cummings had tested the organization's weapons in the past and had been seen firing .40 or .45 caliber black pistols which had been modified to fire automatically shortly before Cummings was given the bag seized during the May 2 search. Given that Cummings had been seen with machineguns previously, a reasonable jury could infer that Cummings knew that these were the types of guns he was being asked to safeguard.
Though far from the strongest of cases, we believe that the cumulation of all of this circumstantial evidence is just enough to sustain the jury's verdict. See Shaw, 670 F.3d at 362 ("Individual pieces of evidence viewed in isolation may be insufficient in themselves to prove a point, but in cumulation may indeed meet the mark."). Accordingly, we reject Cummings's challenge.
Christopher, meanwhile, also argues that the district court violated his Sixth Amendment right to a public trial when it removed his wife and children from the courtroom. We review this allegation de novo. United States v. DeLuca, 137 F.3d 24, 32-33 (1st Cir.1998).
During the fourth day of trial, the district court ordered that Christopher's wife and two minor children — aged ten and fourteen — be removed from the courtroom. Christopher's counsel learned of this exclusion after the day had ended, so he brought the issue to the district court's attention at the start of day five. Upon raising the issue, the district court acknowledged that it had ordered all three family members removed, stating that they had been disruptive. Regarding Christopher's wife, the district court explained that it had observed her "moving her lips" at the witness with "great distaste" and that the witness had seen her doing so. As to the children, the district court explained that they "were disrupting a little bit." It added that it "d[id]n't want the children here, because this is not a place for children.... [to] listen to th[ese] kind of conversations that are recorded, nor to see drugs distributed at a drug point.... [b]ecause I don't think that — nobody should validate or let children be exposed to that to begin with." It went on to note that it would "never let a child of mine listen to this thing, nor hear the language spoken on this tape."
After hearing this explanation, Christopher's counsel asked if Christopher's wife was barred from returning, to which the district court responded in the negative. The court instructed Christopher's counsel that if Christopher's wife "wants to come in and behave like a person should ... and stay seated and put," then she could come
The Sixth Amendment guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." U.S. Const. amend. VI. This right was "`created for the benefit of the defendant,' as openness in criminal proceedings `encourages witnesses to come forward,' `discourages perjury,' and `ensure[s] that judge and prosecutor carry out their duties responsibly.'" Bucci v. United States, 662 F.3d 18, 22 (1st Cir. 2011) (quoting Waller v. Georgia, 467 U.S. 39, 46, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984)).
Accordingly, closing a criminal trial to the public is rare, and before a closure is permitted, a four-part inquiry must be satisfied:
Id. (citing Waller, 467 U.S. at 48, 104 S.Ct. 2210).
This test, however, applies to total closures — where all members of the public are excluded during some portion of the trial. Id. "In partial closures — i.e., where courtroom access is restricted but some members of the public are permitted to attend — this court and several of our sister circuits have held that a `substantial' interest, rather than a `compelling' one, will justify [a] partial closure." Id. Because only Christopher's wife and children were removed from the courtroom, we analyze the exclusions under the modified Waller test for partial closures.
The exclusion of Christopher's wife complied with the modified Waller test. First, the district court explained that it observed Christopher's wife making faces and mouthing words of disapproval at the witness, and that the district court believed that the witness saw these actions. We agree that such actions could be seen as an attempt at witness intimidation, and the prevention of witness intimidation is clearly a "substantial" interest. See Martin v. Bissonette, 118 F.3d 871, 873 (1st Cir.1997) (upholding the exclusion of defendant's family members during the reopening of a witness's testimony where the witness stated that her initial testimony had been untrue because she had been given looks by defendant's family and felt intimidated); United States v. Brazel, 102 F.3d 1120, 1155-56 (11th Cir.1997) (requiring that the public identify themselves before entering the courtroom constituted a partial closure but was permissible because the district court observed individuals coming into the courtroom and staring at witnesses); Woods v. Kuhlmann, 977 F.2d 74, 77-78 (2d Cir.1992) (upholding a
Second, we believe that the district court's requirement that Christopher's wife leave until she promised to behave herself was "no broader than necessary" to protect this substantial interest. As soon as Christopher's wife stopped mouthing words and staring at witnesses, she was to be allowed back in, and thus, the removal was "neither broader nor longer than was reasonably necessary to end this ... harassment and secure the witness's accurate testimony." Martin, 118 F.3d at 875.
Third, while it would have been better for the district court to have explicitly stated that it had considered reasonable alternatives to removing Christopher's wife, we have previously held that such a consideration can be implicit. See id. at 875 & n. 4. This is especially true here, where no reasonable and less-broad alternative existed. Christopher suggests that the court should have publicly admonished his wife and warned her to stop before removing her, as opposed to making that a condition for reentry, and that it should have questioned the witness to determine whether he had seen Christopher's wife's actions and been intimidated by them. However, we believe neither of these alternatives to be reasonable under the circumstances. The district court was concerned that the witness was being intimidated and wanted to take action to ensure that that did not happen. Had the court stopped the proceedings, questioned the witness, and scolded Christopher's wife, all this would have done is disrupt the proceedings, draw attention to the situation, and possibly even enhance the intimidation felt by the witness. "Nothing in Waller or in any other case cited by [Christopher] suggests that a trial judge, presented with evidence of ... witness intimidation ... must undertake an assessment of the exact level of affreightment ... before closing a courtroom." Id. at 875. In fact, the law is to the contrary. See id.
Finally, as already explained, the district court informed Christopher's counsel that Christopher's wife was removed because she was staring at the witness "moving her lips" with "great distaste" and that the witness had seen her doing so. This is an adequate finding to support the partial closure. See Martin, 118 F.3d at 873; Brazel, 102 F.3d at 1155-56; Kuhlmann, 977 F.2d at 77-78.
Accordingly, the exclusion of Christopher's wife during the fourth day of trial met the modified Waller test and did not violate Christopher's Sixth Amendment right to a public trial.
In stark contrast to his wife's exclusion, where Christopher's counsel asked specifically whether she was barred and if she could return, Christopher's counsel remained silent with regards to Christopher's children and never sought to have them readmitted. This silence is fatal to Christopher's claim. When the "subject matter [is] unmistakably on the table, and the defense's silence is reasonably understood only as signifying agreement that there was nothing objectionable," the issue is waived on appeal. United States v. Christi, 682 F.3d 138, 142 (1st Cir.2012); see also United States v. Acosta-Colón, 741 F.3d 179, 187 (1st Cir.2013) ("The judge put the exclusion matter squarely on the table for all the defendants' lawyers at sidebar.... Each attorney had the chance to speak up.... So [defendant's counsel's] silence constitutes classic waiver...."); Martineau v. Perrin, 601 F.2d 1196, 1199-1200
We pause for a moment, however, to sound a note of caution. A defendant has a clear right to have his family present during proceedings — and we know of no exception for minor children. See United States v. Negrón-Sostre, 790 F.3d 295, 299 (1st Cir.2015) ("[W]ithout exception all courts have held that an accused is at the very least entitled to have his friends, relatives and counsel present, no matter with what offense he may be charged." (quoting In re Oliver, 333 U.S. 257, 271-72, 68 S.Ct. 499, 92 L.Ed. 682 (1948) (internal quotation marks omitted))); see also United States v. Rivera, 602 Fed.Appx. 372, 377 (9th Cir.2015); Downs v. Lape, 657 F.3d 97, 108 (2d Cir.2011) (Chin, J., dissenting). Whether any individual child should be allowed to observe proceedings and possibly be exposed to harsh language, violence, and other untoward situations is a decision for that child's parents, not for the district court.
Finally, Defendants argue that even if no single error warrants reversal, the cumulative effect of these errors form an "interconnected web of unfairness." While we agree that "[i]ndividual errors, insufficient in themselves to necessitate a new trial, may in the aggregate have a more debilitating effect," United States v. Sepúlveda, 15 F.3d 1161, 1195-96 (1st Cir. 1993), that is not the situation presently before us.
Defendants allege a host of errors, but only one has any potential merit: Agent James's testimony as to Christopher's involvement in the conspiracy which was both beyond his personal knowledge and beyond the scope of the question asked. But as we discussed above, any error was harmless. And there can be no "cumulative" error when multiple errors do not exist. See United States v. DeSimone, 699 F.3d 113, 128 (1st Cir.2012) ("The cumulative error doctrine is of no use to [defendant] because the only identified error was harmless."); United States v. Stokes, 124 F.3d 39, 43 (1st Cir.1997) ("By definition, cumulative-error analysis is inappropriate when a party complains of the cumulative effect of non-errors.").
In addition to attacking their convictions, Cummings and Christopher also challenge their sentences. We review these challenges under a deferential abuse-of-discretion standard, the goal being to ensure that the sentence "is both procedurally sound and substantively reasonable."
A sentence is procedurally sound so long as the district court complies with the "`specifically delineated roadmap'" we have previously laid out. United States v. Serunjogi, 767 F.3d 132, 142 (1st Cir.2014) (quoting United States v. Madera-Ortiz, 637 F.3d 26, 29 (1st Cir. 2011)). This entails calculating the applicable Guidelines Sentencing Range ("GSR"), addressing any objections to the probation department's Presentence Investigation Report ("PSR"), giving both parties an opportunity to argue for whatever sentence they deem appropriate, considering the 18 U.S.C. § 3553(a) sentencing factors, and explaining the reasoning behind the chosen sentence. See Gall v. United States, 552 U.S. 38, 49-50, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Deviations from this roadmap — such as "failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the section 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence" — constitute procedural error. Trinidad-Acosta, 773 F.3d at 309 (internal quotation marks omitted); see also Gall, 552 U.S. at 51, 128 S.Ct. 586. Though our overall review of a sentencing is for abuse of discretion, this standard is actually multifaceted: "[W]e review factual findings for clear error, arguments that the sentencing court erred in interpreting or applying the guidelines de novo, and judgment calls for abuse of discretion simpliciter." Serunjogi, 767 F.3d at 142 (alteration in original). Notably, when a defendant is convicted of more than one count, a district court is expected to render a separate sentence on each count. United States v. Zavala-Martí, 715 F.3d 44, 51 n. 6 (1st Cir.2013).
In his supplemental pro se brief, Cummings argues that his sentence was procedurally flawed because the district court erred in calculating the Base Offense Level for Count Seven (the drug conspiracy conviction). Specifically, Cummings contends that he was not automatically responsible for all of the drugs involved in the conspiracy simply because he was convicted as a coconspirator, and the district court's failure to make an individualized finding as to the amount specifically attributable to him was error. This argument, while right on the law, is wrong on the facts.
Under the Sentencing Guidelines, a defendant's Base Offense Level for drug offenses depends mostly on the quantity of the drugs involved in the offense. U.S.S.G. § 2D1.1(c). Accordingly, in order to properly calculate the GSR, the district court must first make "an individualized finding as to drug amounts attributable to, or foreseeable by, that defendant." United States v. Vázquez-Larrauri, 778 F.3d 276, 291 (1st Cir.2015) (internal quotation marks omitted). Drug amounts are foreseeable to a coconspirator so long as he or she "could reasonably have anticipated [the drugs] would be within the ambit of the conspiracy." United States v. Santos, 357 F.3d 136, 140 (1st Cir.2004) (citing U.S.S.G. § 1B1.3(a)(1)(B) cmt. 2).
Here, the PSR attributed over 538,000 kilograms of marijuana equivalent
Because the district court did address the drug quantity attributed to Cummings, we are left to determine whether the court committed clear error in adopting the PSR's finding. It did not. The evidence showed that Cummings was an enforcer in the organization, sometimes delivered drugs, and would often store drugs for the conspiracy. With all of these roles, Cummings could reasonably have anticipated that such a large quantity of drugs would be involved in the conspiracy, and thus there is no error in concluding that that entire amount was foreseeable to him. See Santos, 357 F.3d at 140.
In any event, even if the district court had failed to make an individualized finding, the error would have been harmless. See Vázquez-Larrauri, 778 F.3d at 291 (explaining that in order to vacate a sentence, a defendant must show that an error occurred and that it affected the defendant's substantial rights). The verdict form convicting Cummings explicitly found that at least 280 grams of narcotics were involved in the conspiracy, thus triggering a ten-year mandatory minimum sentence. See 21 U.S.C. § 841(b)(1)(A)(iii). Since Cummings was only sentenced to 120 months (or ten years) on this count, his sentence would have been the same regardless of the individualized drug finding.
Accordingly, Cummings's sentence was procedurally sound.
Christopher was convicted on Count Seven — the drug conspiracy — and Count Nine — conspiracy to possess firearms in furtherance of a drug trafficking crime — of the superseding indictment, and the district court imposed a joint "life sentence." Christopher argues that this sentence was procedurally flawed for a number of reasons.
First, he contends that the district court relied on the PSR for a different defendant, and thus the district court's sentence was tailored towards another defendant, and not Christopher. This argument is
Second, Christopher argues that the district court failed to consider his objections to the GSR calculation on his drug conspiracy conviction (Count Seven), and that this failure resulted in an incorrect calculation. At the outset of the sentencing proceedings, the district court asked if there was "any objection that survives," to which Christopher responded that he had filed a sentencing memorandum containing all of his arguments for an eighteen-to-twenty-year sentence. The district court replied, "Okay. Very well" and made no other specific reference to the memorandum. Later in the proceedings, however, the district court stated "the calculations regarding drugs are totally correct, and there's no objection about that." This latter statement was clearly erroneous, as Christopher had indeed objected to the calculation in his sentencing memorandum and had told the district court as much earlier in the proceeding.
This misstatement, however, was harmless because Christopher's objection was legally incorrect. Christopher contended that under Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), the jury was required to find the specific drug quantity he was responsible for, so any drug findings by the district court (or in the PSR) could not be considered. However, all Alleyne requires is for the jury to find that the amount of drugs is greater than that necessary for the mandatory minimum in order for that mandatory minimum to be imposed. See United States v. Razo, 782 F.3d 31, 40 (1st Cir. 2015) ("[Alleyne] held that a jury finding was required to trigger a mandatory minimum.").
The jury found that Christopher possessed at least five kilograms of cocaine, so the district court's finding that the PSR was correct in its calculation of a drug quantity significantly more than that
In addition to challenging the GSR calculation for Count Seven, Christopher also alleges that the district court erroneously ignored the § 3553(a) factors and considered the life sentence to be mandatory. He bases this contention on the district court's statement that it was "imposing the mandatory life sentence." However, immediately following this statement, the district court clarified that the sentence was "[m]andatory in the sense that that's what the guidelines call for." Indeed, the court went on to state that there was "nothing before me that would tell me that I should do anything different by departure or by variance, and I will not." Thus, though the district court did use the term "mandatory," it is clear from its clarification and decision not to impose a variance that this was simply a misstatement, and that the
Moreover, the court's comment that there was "nothing before me that would tell me that I should do anything different" was most likely a reference to, and rejection of, the § 3553(a) sentencing factor arguments contained in Christopher's sentencing memorandum. While we wish this statement was clearer and more explicit, it was sufficient. See United States v. Savoie, 985 F.2d 612, 621 n. 11 (1st Cir.1993) (rejecting defendant's argument that the district court failed to address the § 3553(a) factors given "the pointed comments delivered by the district court at sentencing"); see also United States v. Ocasio-Cancel, 727 F.3d 85, 91 (1st Cir. 2013) ("[A] within-the-range sentence usually demands a less detailed explanation than a variant sentence.").
Finally, Christopher argues that the district court erred in failing to calculate the applicable GSR for Count Nine, instead choosing to "group[]" the two counts together since there was "no point" in calculating the sentence for each count separately. We agree this was error. "[T]he proper procedure" during sentencing "is to render a separate sentence on each count." Zavala-Martí, 715 F.3d at 51 n. 6 (internal quotation marks omitted). This is especially true here where Count Nine did not authorize a life sentence; rather, it carries a twenty-year maximum penalty.
Accordingly, we vacate Christopher's sentence and remand so that the district court may impose an individual sentence on each of the two counts of conviction.
For the foregoing reasons, we affirm the convictions of all three Defendants. We also affirm Cummings's sentence, but we vacate and remand Christopher's sentence so that the district court can impose an individual sentence on each count.
