United States Court of Appeals For the First Circuit
No. 02-2377
UNITED STATES OF AMERICA, Appellee,
v.
NELSON J. DEL ROSARIO, Defendant, Appellant.
No. 03-1006
PEDRO PACHECO, Defendant, Appellant.
___________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
[Hon. Aida M. Delgado-Colón, U.S. Magistrate Judge]
Before
Boudin, Chief Judge,
Selya, Circuit Judge,
and Schwarzer,* Senior District Judge.
__________ *Of the Northern District of California, sitting by designation. Mauricio Hernandez Arroyo, by appointment of the court, on brief for appellant Del Rosario. Rafael Anglada-Lopez, by appointment of the court, on brief for appellant Pacheco. H.S. Garcia, United States Attorney, Sonia I. Torres-Pabón and Nelson Pérez-Sosa, Assistant United States Attorneys, on brief for appellee.
November 1, 2004 SELYA, Circuit Judge. A federal grand jury sitting in
the District of Puerto Rico indicted defendants-appellants Nelson
J. Del Rosario and Pedro Pacheco, along with a third man, Miguel
Pérez, on charges of conspiring to distribute controlled
substances. See 21 U.S.C. §§ 841(a), 846. The operative bill —
the superseding indictment handed up on May 2, 2001 — also charged
Del Rosario with two counts of possession of large quantities of
cocaine and heroin, respectively, with intent to distribute the
same. See id. § 841(a)(1). Pérez disappeared after posting bail
and is still a fugitive. Del Rosario and Pacheco maintained their
innocence.
At a joint trial, a jury found the appellants guilty as
charged. The district court sentenced Del Rosario to a 151-month
incarcerative term and Pacheco to a 235-month incarcerative term.
In these appeals, both men claim that the government failed to
present sufficient evidence to ground their convictions. Each man
also challenges a different evidentiary ruling. Finally, Pacheco
questions the constitutionality of his sentence. Finding their
arguments unpersuasive, we affirm.
I. BACKGROUND
We first trace the anatomy of the government's case and
then describe the trial.
-3- A. The Facts.
In reviewing challenges to the sufficiency of the
evidence in criminal cases, we take the trial record in the light
most favorable to the government. See United States v. Maraj, 947
F.2d 520, 522 (1st Cir. 1991). Viewing the evidence in that light,
the jury could have found the following facts.
On July 29, 2000, an unnamed informant told the Drug
Enforcement Administration (DEA) about drug-trafficking activity
allegedly taking place in the American Airlines terminal at the
international airport that serves San Juan, Puerto Rico. DEA
agents placed the terminal under surveillance. Two agents
stationed outside the building watched as Del Rosario and two
companions (Charlie James and Leonardo Ramírez) entered the
terminal through a secured-access door reserved for airline
personnel. Each man was pulling a suitcase on rollers. The agents
alerted colleagues stationed inside the terminal, who then
apprehended the trio as they separately approached a gate at which
a New York-bound flight waited. Ramírez consented to a search of
his suitcase. That search revealed several individually wrapped
packages of what appeared to be narcotics.
At that point, the DEA agents arrested all three men,
escorted them to the DEA's airport office, and conducted consensual
searches of James's and Del Rosario's luggage. Each suitcase was
found to contain bundles similar to those previously found in
-4- Ramírez's roll-along baggage. Laboratory tests later showed that
all three suitcases were laden with drugs. Del Rosario's held
approximately twenty kilograms of cocaine and one and one-half
kilograms of heroin.
The agents also found a few other items of interest. On
Del Rosario's person, they discovered a printed itinerary for an
unconsummated return trip to New York. From James, they seized a
prepaid cellular phone and an unused airline ticket for the waiting
San Juan to New York flight. A search of Ramírez's person revealed
a similar ticket. These items were introduced into evidence at the
trial.
Shortly before the threesome entered the terminal, their
associates, Pacheco and Pérez, had stationed themselves inside as
lookouts. When they saw the agents swoop down upon their cohorts,
Pacheco and Pérez lost no time in boarding the flight to New York.
Ramírez provided the agents with descriptions of the two men and
identified them as the owners of the contraband. DEA agents in New
York arrested Pacheco and Pérez upon their debarkation and seized
prepaid cellular phones from each of them.
With this brief introduction, we turn to the trial
itself. Additional facts will be revealed both in the course of
that discussion and in the ensuing analysis of the assignments of
error.
-5- B. The Trial.
Ramírez pleaded guilty to a felony drug offense and
became a government witness. At the appellants' trial, he
testified that Del Rosario initially had recruited him to
participate in a scheme to ferry drugs from San Juan to New York.
At a meeting in New York on July 21, 2000, Del Rosario introduced
Ramírez to Pacheco and the three men discussed compensation issues.
The next day, they left for Puerto Rico to retrieve a shipment of
drugs. That trip proved to be a washout and the would-be
traffickers agreed to return the following weekend to consummate
the transaction.
The threesome flew back to New York and, in furtherance
of their agreement, returned to San Juan on July 28. They met with
Pérez that same day. The next day, Pérez and James drove the group
to the airport. Pérez instructed Ramírez to take a suitcase from
the van, wait for Del Rosario and James, and follow them through
the secured door into the terminal. Ramírez did as he was told.
When James appeared, Ramírez overheard him talking on a cellular
phone, relaying the group's location to another party. The
government later entered into evidence the call logs from prepaid
cellular phones ostensibly seized from Pacheco, James, and Pérez.
These logs showed that the cellular phones seized from Pacheco and
James were constantly communicating with each other on the day of
the arrests. The last call between the two was logged at 8:53 p.m.
-6- (roughly the time that the DEA agents observed Del Rosario, James,
and Ramírez entering the terminal).
The jury also heard testimony from an American Airlines
ticket agent attesting to airline reservations that had been made
in the names of each of the five participants in the scheme. The
agent related that the tickets assigned to Pacheco, Del Rosario,
James, and Ramírez on the July 29 San Juan to New York flight were
bought at a single New York travel agency and were numbered
sequentially. This tended to confirm Ramírez's testimony that
Pacheco personally had booked the group's air travel and had
underwritten its cost.
After the government completed its case in chief, both
defendants moved for judgments of acquittal based on the alleged
insufficiency of the evidence. See Fed. R. Crim. P. 29(a). The
district court denied these motions. The appellants proceeded to
introduce evidence in their own defense. They did not renew their
Rule 29 motions once they had rested. The court's charge, the
verdict, and the imposition of sentences followed, as did these
appeals.
II. SUFFICIENCY OF THE EVIDENCE
Under ordinary circumstances, we review the grant or
denial of motions for judgment of acquittal de novo. United States
v. Hernandez, 146 F.3d 30, 32 (1st Cir. 1998). Here, however, the
circumstances are not ordinary. "A defendant who elects to adduce
-7- evidence in [his] defense after the district court has denied a
Rule 29 motion made at the close of the government's case is deemed
to have abandoned the earlier motion and waived any objection to
its denial." United States v. Amparo, 961 F.2d 288, 290 (1st Cir.
1992). So it is here: the appellants' failure to renew their
earlier motions for judgment of acquittal after presenting evidence
pretermits the usual de novo review. See United States v.
Hadfield, 918 F.2d 987, 996 (1st Cir. 1990). Instead, we inquire
into the evidentiary sufficiency of the government's case only to
ensure against clear and gross injustice. United States v. Stein,
233 F.3d 6, 20 (1st Cir. 2000); Hadfield, 918 F.2d at 996. We
find no hint of injustice here.
The conspiracy statute under which the appellants were
convicted provides that "[a]ny person who attempts or conspires to
commit any [federal drug] offense . . . shall be subject to the
same penalties as those prescribed for the offense." 21 U.S.C. §
846. To ground a conviction under this statute, the government
must "show beyond a reasonable doubt that a conspiracy existed and
that a defendant agreed to participate in it, intending to commit
the underlying substantive offense." United States v. Sepulveda,
15 F.3d 1161, 1173 (1st Cir. 1993). The government may meet its
burden of proof by direct evidence, circumstantial evidence, or any
combination of the two. United States v. Marrero-Ortiz, 160 F.3d
768, 772 (1st Cir. 1998). "[B]oth the conspiracy's existence and
-8- a particular defendant's participation in it may be inferred from
the members' words and actions and the interdependence of
activities and persons involved." United States v. Ortiz de Jesus,
230 F.3d 1, 5 (1st Cir. 2000) (quoting United States v. Boylan, 898
F.2d 230, 241-42 (1st Cir. 1990)).
We need not tarry. In this case, the testimony of
Ramírez points directly to the existence of an express agreement
among a band of coconspirators that included both appellants. He
met face to face with Del Rosario and Pacheco, directly implicated
them in the drug-trafficking scheme, and detailed their
participation (citing book and verse). Ramírez's testimony alone
is adequate to sustain the conspiracy convictions. See, e.g.,
United States v. Martínez-Medina, 279 F.3d 105, 115 (1st Cir. 2002)
(explaining that uncorroborated testimony of a government informant
is sufficient for conviction if the testimony "is not incredible or
insubstantial on its face") (citation and internal quotation marks
omitted); see also Ortiz de Jesus, 230 F.3d at 6.
In an endeavor to parry this thrust, Pacheco charges that
Ramírez's testimony was unworthy of credence and compromised by
inconsistencies. This charge overlooks that judgments as to a
witness's veracity (or lack of veracity) ordinarily are for the
jury, not for an appellate court. See, e.g., United States v.
Franky-Ortiz, 230 F.3d 405, 407 (1st Cir. 2000); United States v.
O'Brien, 14 F.3d 703, 707 (1st Cir. 1994). The jury is free to
-9- credit or discount testimony depending upon its collective
evaluation of a witness's credibility. O'Brien, 14 F.3d at 707.
And, similarly, the existence and effect of any inconsistencies are
grist for the jury's mill. See, e.g., United States v. Carroll,
105 F.3d 740, 743 (1st Cir. 1997); United States v. Romero, 32 F.3d
641, 646 (1st Cir. 1994).
In this instance, Pacheco's trial counsel ably cross-
examined Ramírez and forcefully attacked the latter's credibility
during closing argument. The jurors saw and heard the witness and
were at liberty to make their own informed assessment of his
truthfulness. For present purposes, it is conclusive that the jury
apparently accepted Ramírez's account. See United States v.
Alicea, 205 F.3d 480, 483 (1st Cir. 2000) (explaining that "a jury
has the prerogative to credit some parts of a witness's testimony
and disregard other potentially contradictory portions").
To be sure, the appellants note that Ramírez was hip-deep
in the plot and emphasize the inherent unreliability of accomplice
testimony. But that too was for the jury. It would revolutionize
the trial of criminal cases if the turncoat status of a cooperating
witness was enough to strip his testimony of probative value as a
matter of law. There is no such rule. See id.
In addition to challenging his conspiracy conviction, Del
Rosario also challenges his convictions on the two substantive
counts. Those counts, charging possession with intent to
-10- distribute, arise out of the same nucleus of operative facts: the
July 29 airport incident. The first of them (count 2) charged that
Del Rosario, at that time and place, knowingly possessed five or
more kilograms of cocaine with intent to distribute. The second
(count 3) charged that, at the same time and place, he knowingly
possessed one or more kilograms of heroin with intent to
distribute.
Del Rosario initially argues that the government never
proved that he possessed either the cocaine or the heroin. This is
sheer persiflage. For purposes of the statute of conviction, 21
U.S.C. § 841(a)(1), possession may be either actual or
constructive. United States v. Bergodere, 40 F.3d 512, 518 (1st
Cir. 1994). Actual possession is "the state of immediate, hands-on
physical possession." United States v. Zavala Maldonado, 23 F.3d
4, 6 (1st Cir. 1994). Constructive possession "exists when a
person knowingly has the power and intention at a given time to
exercise dominion and control over an object, either directly or
through others." United States v. Ocampo-Guarin, 968 F.2d 1406,
1409 (1st Cir. 1992) (citation and internal quotation marks
omitted). In a drug case, constructive possession "may be inferred
from a defendant's dominion and control over an area where
narcotics are found." United States v. Echeverri, 982 F.2d 675,
678 (1st Cir. 1993).
-11- In this case, the evidence shows that Del Rosario, having
accepted an assignment to transport drugs from San Juan to New
York, removed a suitcase (later found to contain narcotics) from
the back of a van and wheeled it through a restricted-access
airport door. He was seen straddling this suitcase with his legs
as he awaited a boarding call for his New York flight. These facts
are capable of supporting an inference of either actual or
constructive possession.
Del Rosario's claim that the government failed to
establish his intent to distribute cocaine and heroin is equally
unavailing. On this record, the illation that he knew this
suitcase was packed with narcotics was an easy (and wholly
reasonable) one for jurors to draw. Del Rosario's claim to the
contrary ignores, among other things, the axiomatic principle that
"an intent to distribute drugs can legitimately be inferred from
factors such as quantity and purity." Id.
To illustrate, the DEA agents found twenty-one packages
in Del Rosario's suitcase. One distinctively wrapped parcel was
tested separately and found to contain between 665 and 690 grams of
heroin (the record does not contain any information as to its
purity). When the DEA tested the twenty remaining packages, one of
them was shown to contain 787 grams of heroin, 71% pure. The other
nineteen parcels contained, in the ensemble, 19.89 kilograms of
-12- cocaine, 79% pure.1 The large quantity of contraband found in Del
Rosario's possession warrants the inferences that he knew the drugs
would be released into the stream of commerce and that he intended
to facilitate that action. See United States v. Smith, 680 F.2d
255, 260 (1st Cir. 1982) ("Neither juries nor judges are required
to divorce themselves of common sense, but rather should apply to
facts which they find proven such reasonable inferences as are
justified in the light of their experience as to the natural
inclinations of human beings.").
That ends this aspect of the matter. The evidence
presented at trial was more than sufficient to sustain the
appellants' convictions.
III. EVIDENTIARY RULINGS
The appellants variously assign error to two evidentiary
rulings. We discuss them separately.
A. The Cellular Phone.
Pacheco complains that the government never proved that
he was in possession of the cellular phone used to converse with
James on July 29. His plaint focuses on the lack of foundation for
references to the phone that were made at trial by Brian Geraghty,
a DEA agent. We set the stage.
1 Ramírez's and James's suitcases contained, respectively, 18.9 and 19.88 kilograms of 80% pure cocaine.
-13- The record reflects that a cellular phone was taken from
Pacheco in New York. Geraghty, however, was in San Juan at the
time. He later participated in the receipt and processing of a
cellular phone at the DEA's San Juan office. He was told that the
phone was Pacheco's and he inventoried it as such. However, he had
no personal knowledge of that fact. The agent who seized the phone
did not testify, and there was no first-hand evidence as to how the
phone traversed the miles from New York to San Juan.
During Geraghty's trial testimony, he alluded to a
"telephone that was taken from Mr. Pacheco." This reference
occurred despite the absence of any foundational evidence, to that
point, that a phone had been seized when Pacheco was detained. The
allusion inspired a vaguely phrased objection, to which the
district court responded that Pacheco's counsel "need[ed] to bring
that up outside of the hearing of the jury." Pacheco's counsel
never followed through on this suggestion.
Geraghty essayed several other references to the cellular
phone. On one of these occasions, Pacheco's counsel began to state
an objection. The district court cut her off in mid-sentence.2
2 The colloquy between the lawyer and the judge was as follows:
MS. APONTE: The objection was that the witness [Geraghty] was with Mr. Pacheco when the telephone was occupied. So if he is testifying as to something he was outside of the presence —
THE COURT: Overruled. The jury heard the circumstance in which the telephone was seized. They heard it today,
-14- Pacheco now asks us to review the admissibility of the agent's
statement that the phone was seized from his person.
There is a serious question as to the applicable standard
of review. Two difficulties are apparent. First, the court
invited defense counsel to take the matter up outside the jury's
earshot, and the record does not reflect that counsel ever did so.3
Cf. Cottrill v. Sparrow, Johnson & Ursillo, Inc., 100 F.3d 220, 224
n.2 (1st Cir. 1996) (stating that an appellant who declines the
court's invitation to seek modification of an order waives the
issue for purposes of appeal). This likely was a waiver. The
as a matter of fact —
MS. APONTE: Your Honor.
THE COURT: — so the jury can deal with that. You can argue your case at an appropriate time in front of the jury. This is not closing argument. We are just receiving evidence.
In his brief, Pacheco indicates that the phrase "the witness was with Mr. Pacheco" should read "the witness was not with Mr. Pacheco" (emphasis supplied). It is unclear whether the absence of the word "not" was caused by misspeaking or by mistranscription. In all events, Pacheco is bound by the transcript as it stands, as he never requested the district court to correct the phrasing. See Fed. R. App. P. 10(e)(1) (explaining that disputes arising over the accuracy of the trial record ordinarily must be submitted to and settled by the district court). 3 In his briefing, Pacheco claims that the trial judge spontaneously withdrew the invitation and overruled the objection before a sidebar conference could take place. The record, however, is silent in this regard — and it is a party's affirmative responsibility to "furnish the court of appeals with so much of the record of the proceedings below as is necessary to enable informed appellate review." Faigin v. Kelly, 184 F.3d 67, 87 (1st Cir. 1999).
-15- second obstacle is that a party objecting to particular evidence is
obliged to make "a timely objection or motion to strike . . .
stating the specific ground of objection," at least where that
ground was not apparent from the context. Fed. R. Evid. 103(a)(1).
The purpose behind this rule is to ensure that a litigant will
"call his specific objection to the attention of the trial judge,
so as to alert the judge to the proper course of action." United
States v. Holmquist, 36 F.3d 154, 168 (1st Cir. 1994) (citation,
internal quotation marks, and brackets omitted). Should either of
these obstacles prove insuperable, review would be limited to plain
Here, however, there are some mitigating factors. Chief
among them is the trial judge's interruption of the lawyer as she
was apparently attempting to state the grounds for her objection.
That might suffice to excuse the procedural default. Cf. United
States v. Toribio-Lugo, 376 F.3d 33, 41 (1st Cir. 2004) ("A lawyer
ought not to be required to persist stubbornly when the judge has
made it perfectly clear that he does not wish to hear what the
lawyer has to say.").
In the final analysis, we need not probe too deeply into
whether Pacheco preserved the point. Here, all roads lead to Rome:
whatever the standard of review, the error was harmless.
The error itself is manifest. Geraghty's only knowledge
of the phone's provenance was second-hand. The agent who seized it
-16- did not testify, and the government never established a chain of
custody tracing the phone from Pacheco's carryall to Geraghty's
hands. See United States v. Ladd, 885 F.2d 954, 956-57 (1st Cir.
1989) (describing chain of custody requirements). We conclude,
therefore, that there was no sound basis for admitting the
references linking Pacheco to the cellular phone.
Notwithstanding the fact that the government used the
phone and the call logs emanating from it to show communication
between Pacheco and James on the day of the arrest, this error was
harmless. "Where, as here, an error is not of constitutional
magnitude, reversal is not obligatory unless the bevue 'affect[s]
substantial rights.'" Id. at 957 (quoting Fed. R. Crim. P. 52(a)).
In determining whether an error affects substantial rights, we ask
whether we can say, "with fair assurance, after pondering all that
happened without stripping the erroneous action from the whole,
that the judgment was not substantially swayed by the error."
Kotteakos v. United States, 328 U.S. 750, 765 (1946). The
Kotteakos "fair assurance" standard requires a substantial degree
of probability, but it does not require that the error be shown to
be harmless beyond any reasonable doubt. See Ladd, 885 F.2d at
957.
In applying the Kotteakos test, a reviewing court must
engage in "a panoramic, case-specific inquiry considering, among
other things, the centrality of the tainted material, its
-17- uniqueness, its prejudicial impact, the uses to which it was put
during the trial, the relative strengths of the parties' cases, and
any telltales that furnish clues to the likelihood that the error
affected the factfinder's resolution of a material issue."
Sepulveda, 15 F.3d at 1182. The error of which Pacheco complains
is analogous to the one that we found harmless in Ladd.
First, the point that the government sought to prove by
introducing the cell phone evidence — that Pacheco was in
communication with the men carrying the drugs — had been
established by other evidence before Geraghty took the stand. And
there was more. The jury heard from Ramírez that Pacheco had
facilitated the group's air travel to and from Puerto Rico and had
explained the financial terms of the drug deal to the recruits.
Then, too, the supervisor of the DEA surveillance team testified
that Pacheco was in the terminal at the time of the incident,
acting in a manner that suggested countersurveillance. Last — but
far from least — the consecutively numbered airline tickets paid
for by Pacheco and issued in his and his cohorts' names were a
powerful indicium of his pivotal role in the plot. Because the
proof of Pacheco's culpability was abundant and the probative value
of the cell phone testimony, in itself, was modest, we think it
highly unlikely that the exclusion of that testimony would have
influenced the jury's verdict. See United States v. Piper, 298
-18- F.3d 47, 58 (1st Cir. 2002) (explaining that evidence deemed
"cumulative" is generally thought to be harmless).
The second point of similarity with the Ladd analysis is
the effect of the challenged testimony on the defendant's trial
strategy. See Ladd, 885 F.2d at 958. Pacheco's defense at trial
consisted of an alibi: the testimony of two nieces who claimed
that he had remained in Puerto Rico between July 23 and July 29.
That testimony, if believed, would have contradicted Ramírez's
testimony that Pacheco repaired to New York during that interval,
made the necessary arrangements for the pickup, and returned to
Puerto Rico on July 28 with his "mules." The impermissible
references to the use of the cell phone in Puerto Rico on July 29,
however, are not in any way inconsistent with Pacheco's alibi
defense and therefore could have no bearing on it. This lack of
centrality supports a finding of harmlessness.
For these reasons, we conclude that, whatever the
standard of review, the lower court's admission of the cell phone
testimony constituted harmless error.
B. The Search of the Suitcase.
In an attempt to remove the most incriminating piece of
evidence from the mix, Del Rosario challenges the district court's
denial of his motion to suppress the contents of the suitcase.4
4 The district judge originally sent the motion to suppress to a magistrate judge. See 28 U.S.C. § 636(b)(1)(B). The magistrate judge held an evidentiary hearing and recommended denial of the
-19- Del Rosario trains his fire on the district court's determination
that the DEA agents secured Del Rosario's valid consent to conduct
the search. As framed, this argument calls into question the
court's subsidiary findings of fact. We review these findings for
clear error, see United States v. Zapata, 18 F.3d 971, 975 (1st
Cir. 1994), while affording plenary review to the district court's
ultimate constitutional conclusion that Del Rosario's rights were
not violated, see United States v. Laine, 270 F.3d 71, 74 (1st Cir.
2003).
Two witnesses appeared at the suppression hearing: Del
Rosario and DEA supervisor Elvin Laboy. They offered differing
accounts of the events that took place inside the DEA's airport
office. Laboy testified that Del Rosario admitted ownership of the
suitcase and freely consented to a search of it.5 Del Rosario
motion. Del Rosario then filed a timely objection to the magistrate judge's report. The district judge overruled this objection and adopted the magistrate's reasoning. For simplicity's sake, we do not distinguish between the two judicial officers, but, rather, take an institutional view and refer to the determinations below as those of the district court. See, e.g., United States v. Maldonado, 356 F.3d 130, 134 n.1 (1st Cir. 2004). 5 Although his brief is unclear on the point, Del Rosario appears to be making a poorly developed argument that Laboy's testimony included hearsay and, thus, should not have been considered. That argument is hopeless. For one thing, Del Rosario made no contemporaneous objection to the testimony. See United States v. Saccoccia, 58 F.3d 754, 773 (1st Cir. 1995) (explaining that an appellant's burden increases substantially when he has failed to advance a contemporaneous objection). For another thing, testimony given at a suppression hearing is not subject to the usual proscriptions against hearsay evidence. See Fed. R. Evid. 104(a); see also United States v. Schaefer, 87 F.3d 562, 570 (1st
-20- testified that Laboy was not even present when the suitcase was
opened and that he never consented to a search.
Weighing the two sharply conflicting narratives, the
district court found Laboy truthful and rejected Del Rosario's
version. Since Laboy's testimony is plausible on its face and not
inconsistent with the other information that is known about the
events in question,6 the district court's finding demands our
respect. See United States v. Weidul, 325 F.3d 50, 53 (1st Cir.
2003) (explaining that "a district court's choice between two
plausible competing interpretations of the facts cannot be clearly
erroneous"); Jackson v. United States, 156 F.3d 230, 232-33 (1st
Cir. 1998) (similar).
As a fallback, Del Rosario offers an alternative
argument. He suggests that any consent he might have given was
tainted by coercion. That is whistling past the graveyard. A nisi
prius court's determination that consent was voluntary is a factual
finding, not a legal one, and thus is reviewed only for clear
error. Laine, 270 F.3d at 75. "The only real question for
Cir. 1996). 6 We reject Del Rosario's complaint that Laboy's testimony at the suppression hearing contradicts a DEA record indicating that Agent Douglas Furlough was the person who requested the consent. At trial, Furlough testified that both he and Laboy had participated in Del Rosario's initial interview, and that Laboy was the one who had requested consent to open the suitcase. Moreover, the agent who had prepared the original record explained that his statement was based on a faulty assumption.
-21- appellate review is whether the evidence presented at the
suppression hearing fairly supports this finding." Id. The answer
here is unequivocally in the affirmative.
To be sure, Del Rosario marshals other "facts" in support
of his coercion argument. But these "facts" derive from his own
uncorroborated testimony at the suppression hearing. The district
court declined to credit that testimony, and Laboy's testimony,
unimpeached on cross-examination, suggests that Del Rosario
answered "yes" when asked for a "simple yes or no" answer as to
whether he would consent to an opening of the bag. Given the
district court's express adoption of Laboy's testimony and its
equally explicit rejection of Del Rosario's account, we discern no
clear error in the determination that the necessary consent was
elicited voluntarily. See id.
At the risk of belaboring the obvious, a supportable
finding of consent eliminates the need for either a search warrant
or probable cause. See Schneckloth v. Bustamonte, 412 U.S. 218,
219 (1973); United States v. Woodrum, 202 F.3d 1, 6 (1st Cir.
2000). Given the bulletproof determination that Del Rosario
voluntarily consented to the search, the district court's legal
ruling that the evidence was not obtained in violation of the
Fourth Amendment is unimpugnable.
-22- IV. SENTENCING
Our journey is not yet at an end. Having received a 235-
month prison sentence under the relevant provisions of the United
States Sentencing Guidelines, Pacheco now invites this court, in a
supplemental post-argument brief, to set aside his sentence on the
basis of the Supreme Court's decision in Blakely v. Washington, 124
S. Ct. 2531 (2004). We decline the invitation.
Blakely examined the constitutionality of a Washington
state sentencing scheme. After the defendant pleaded guilty to
kidnaping, the nisi prius court imposed a sentence above the
statutory maximum based on a finding of "deliberate cruelty." Id.
at 2535. The Supreme Court noted that this finding was "neither
admitted by [the defendant] nor found by a jury," id. at 2537, and
declared the augmented sentence violative of Blakely's Sixth
Amendment right to trial by jury, id. at 2538. While the Court
made clear that the federal sentencing guidelines were not before
it and expressed no opinion on their validity, id. at 2538 n.9, the
rationale of Blakely calls into doubt their constitutionality. The
Supreme Court has taken this precise question under advisement.
See United States v. Booker, No. 04-104 (argued Oct. 4, 2004);
United States v. Fanfan, No. 04-105 (argued Oct. 4, 2004).
In Pacheco's case, the sentencing court determined, inter
alia, that he was an "organizer" of the conspiracy, and hiked his
offense level accordingly. See USSG §3B1.1(c). The increase in
-23- the offense level yielded an elevated guideline sentencing range
and, thus, led to a stiffer sentence. Invoking Blakely, Pacheco
now attempts for the first time to challenge this upward
adjustment. He posits that the crucial fact on which the
adjustment depends — his role in the offense of conviction — was
neither determined by the jury nor established beyond a reasonable
doubt.7
The most fundamental flaw in the fabric of this argument
is that Pacheco failed to advance it in the district court.8 That
flaw is exacerbated because he likewise failed to raise it in his
pre-argument appellate briefing. Such omissions are costly to an
appellant. See Lattab v. Ashcroft, 384 F.3d 8, 17 (1st Cir. 2004)
(explaining that an appellant may not raise new points of law for
the first time in a post-argument brief); United States v. Dietz,
7 Pacheco also suggests that the sentencing court's findings of drug quantity, used to calculate his base offense level, see USSG §2D1.1(c)(2), are similarly infirm. The drug quantity finding was not challenged below or in Pacheco's opening brief, so we reject that suggestion based on the same reasoning that undergirds our rejection of his argument against the role-in-the-offense enhancement. See text infra. 8 The fact that Blakely had not been decided at that time does not excuse this default. The Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), foreshadowed the argument; and, in all events, the prospect of an adverse ruling does not relieve a party of the duty of lodging a contemporaneous objection. See, e.g., Derman v. United States, 298 F.3d 34, 44 (1st Cir.) (explaining that appellant's failure to raise an Apprendi objection before the trial court violated "the general rule that a criminal defendant must seasonably advance an objection to a potential constitutional infirmity in order to preserve the point for collateral attack"), cert. denied, 537 U.S. 1048 (2002).
-24- 950 F.2d 50, 55 (1st Cir. 1991) (explaining that sentencing
objections "not seasonably addressed to the trial court may not be
raised for the first time in an appellate venue").
It is debatable whether these omissions, collectively,
constitute a waiver or, instead, are merely a forfeiture. See
United States v. Morgan, 384 F.3d 1, 7-8 (1st Cir. 2004)
(discussing this question); see also United States v. Rodriguez,
311 F.3d 435, 437 (1st Cir. 2002) (spelling out the different
consequences of waiver and forfeiture vis-à-vis appellate review),
cert. denied, 538 U.S. 937 (2003). We need not make so fine a
distinction today. Assuming arguendo, favorably to Pacheco, that
the plain error standard applies, he is nonetheless ineligible for
relief.9
The substantive standards for plain error review are
difficult to satisfy. We will only reverse the trial court's
decision if a defendant demonstrates "(1) that an error occurred
(2) which was clear or obvious and which not only (3) affected
[his] substantial rights, but also (4) seriously impaired the
fairness, integrity, or public reputation of judicial proceedings."
9 In his supplemental brief, Pacheco claims that the putative Blakely error was preserved (and, therefore, that the error engenders de novo review). The record belies that claim: at no point during the sentencing proceedings did Pacheco object to the role-in-the-offense enhancement or to the determination of drug quantity on any ground that anticipates, or even remotely resembles, the Blakely rationale.
-25- United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001). We find
no plain error here. Our conclusion rests on two bases.
The first involves timing. The district court sentenced
Pacheco on November 26, 2002. That was almost nineteen months
before the Supreme Court decided Blakely. Circuit precedent in
force at the time of Pacheco's sentencing, in line with the Supreme
Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000),
provided that an aggravating sentencing factor did not need to be
presented to a jury or proven beyond a reasonable doubt so long as
the resulting sentence did not exceed the statutory maximum. See
United States v. Caba, 241 F.3d 98, 101 (1st Cir. 2001) (holding
that, within these parameters, Apprendi permits an upward
adjustment for a defendant's role in a drug-trafficking
conspiracy). Here, the underlying offense carries a maximum
sentence of life in prison. See 21 U.S.C. § 841(b)(1)(A). Whether
Blakely has fatally undermined this line of authority is an
unsettled question at the moment and, whatever the ultimate
outcome, the answer is neither clear nor obvious. See United
States v. Cordoza-Estrada, ___ F.3d ___, ___ (1st Cir. 2004) [No.
03-2666, slip op. at 9] (per curiam). Accordingly, we cannot find
that the district court committed plain error when it sentenced
Pacheco on the basis, in part, of an upward role-in-the-offense
adjustment. See Morgan, 384 F.3d at 8.
-26- The second reason why there is no plain error involves
the fourth prong of the plain error test: any bevue in failing to
submit the role-in-the-offense issue to the jury did not seriously
affect the fairness of the proceedings. See United States v.
Cotton, 535 U.S. 625, 631-32 (2002); Johnson v. United States, 520
U.S. 461, 469-70 (1997). We reach this conclusion because the
transcript of the disposition hearing is utterly devoid of any
attack either on the Probation Department's recommendation that an
upward role-in-the-offense adjustment be imposed or on the district
court's determination that Pacheco was the organizer of the
enterprise (and, thus, was deserving of such an adjustment). To
cinch matters, the facts of record, including Ramírez's
identification of Pacheco both as an "owner" of the drugs and as
the de facto tour director for the group's air travel, strongly
support the conclusion that Pacheco was a driving force in the
conspiracy. Under these circumstances, any error (assuming that
one occurred) cannot be classified as plain. See United States v.
Savarese, ___ F.3d ___, ___ (1st Cir. 2004) [No. 04-1099, slip op.
at 16-17].
V. CONCLUSION
We need go no further. We conclude that the evidence
presented at trial supports the jury's verdict; that the
appellants' claims of reversible error, insofar as they relate to
the district court's evidentiary rulings, lack force; and that the
-27- unpreserved claim of Blakely error does not afford Pacheco a
cognizable basis for relief. Consequently, we affirm the
appellants' convictions and sentences.
Affirmed.
-28-