United States Court of Appeals For the First Circuit
Volume II of II No. 01-1647
UNITED STATES OF AMERICA,
Appellee,
v.
José Rodriguez-Marrero,
Defendant, Appellant.
No. 02-1462
Omar F. Genao-Sanchez,
No. 02-1707
Luis Roldan-Cortes,
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. José A. Fusté, U.S. District Judge]
Before
Selya, Circuit Judge, Coffin, Senior Circuit Judge, and Lipez, Circuit Judge.
Lydia Lizarribar-Masini for appellant Omar Genao-Sanchez. Raymond L. Sanchez Maceira on brief for appellant José Rodriguez-Marrero. Linda George for appellant Luis Roldan-Cortes. Thomas F. Klumper, Assistant United States Attorney, with whom H.S. Garcia, United States Attorney, and Sonia I. Torres, Assistant United States Attorney, were on brief for appellee.
November 5, 2004 C. Roldan's Claims
Roldan raises six claims on appeal: (1) the district
court's denial of his continuance motion denied him the opportunity
for a fair trial; (2) the evidence upon which he was convicted was
insufficient and submitted to the jury upon an incorrect mens rea
instruction; (3) the court should have severed his trial from his
co-defendants'; (4) he deserves a new trial because of newly-
discovered evidence and the government's Brady violation; (5) the
court violated Apprendi and Blakely; and (6) the sentencing court
failed to understand its authority to grant a downward departure.
We consider each of these claims in turn.
1. Denial of the Continuance Motion
Claiming that the fifty-six day time span between his
arraignment and the start of the trial did not give his attorney
adequate time to review the evidence and to prepare a defense,
Roldan claims that the district court's denial of his motion for a
thirty day continuance deprived him of due process and the
effective assistance of counsel. He argues that this difficulty
was exacerbated by the government's decision to seek the death
penalty until the day before the trial. We grant "broad
discretion" to a trial court to decide a continuance motion and
will only find abuse of that discretion with a showing that the
court exhibited an "unreasonable and arbitrary insistence upon
expeditiousness in the face of a justifiable request for delay."
-41- United States v. Rodriguez Cortes, 949 F.2d 532, 545 (1st Cir.
1991) (internal quotation marks omitted). "In deciding whether
denial of a continuance constitutes an abuse of discretion, we
cannot apply a mechanical test, but must evaluate each case on its
own facts." United States v. Torres, 793 F.2d 436, 440 (1st Cir.
1986). Among the factors we evaluate in reviewing such a denial
are "the defendant's diligence, the inconvenience to the court and
other parties, the likely utility of a continuance, and any unfair
prejudice caused by the denial." United States v.
Orlando-Figueroa, 229 F.3d 33, 40 (1st Cir. 2000).
Roldan greatly increased the potential burden on the
court and the government by failing to file a timely request for a
continuance. In fact, having received the court's warning that the
district court's backlog did not allow it to grant any
continuances, Roldan did not file his motion for a thirty day
continuance until the day before the trial was scheduled to begin.
See United States v. Jones, 730 F.2d 593, 596 (10th Cir. 1984)
(holding that the district court properly denied the motion for
continuance because, inter alia, the defendant waited until six
days before trial to file the motion); United States v. Lee, 729
F.2d 1142, 1144 (8th Cir. 1984) (per curiam) (the defendant's
diligence in requesting a continuance in timely fashion is a factor
in determining whether denial was appropriate); United States v.
Bollin, 729 F.2d 1083 (6th Cir. 1984) (per curiam) (holding that
-42- there was no error in the district court's denial of a motion for
a continuance filed on the first day of a trial). There is no
gainsaying the poor timing of Roldan's motion.
Importantly, with one exception that we discuss
separately, Roldan fails to identify any specific ways in which the
court's denial of his continuance motion unfairly prejudiced him.10
A defendant is generally not entitled to a new trial unless he or
she can identify specific ways in which the court's erroneous
denial of a continuance prejudiced his or her defense. United
States v. Flecha-Maldonado, 373 F.3d 170, 176 (1st Cir. 2004)
(affirming trial court's denial of a continuance after observing
that "counsel has identified no concrete ways in which the unusual
trial schedule in this case prejudiced [the defendant]"). Although
he states that the government produced twenty thousand pages of
documents and tape recordings relating to thirty-five individuals,
he fails to identify (with the one exception already noted) any
material document that he was unable to review due to the time
10 For example, Roldan argues in his brief as follows:
Defendant absolutely needed more time. Time to identify, locate and produce witnesses. Time to importune their cooperation, and secure their testimony. Time to review their words and follow-up with further investigation. Time to accomplish all of this while scrutinizing 20,000 pages of discovery accumulated over a 2 1/2 year period, reviewing voluminous taped evidence; within the shadow of the death penalty and all of its ramifications.
These are fervent claims, but they are also generalities.
-43- pressures. Furthermore, Roldan's complaint about twenty thousand
pages of discovery is misleading.11 The government provided a
contents page with each discovery package that it sent to the
defendants. Roldan could have used these indices to focus his
evaluation of the evidence on the issues and witnesses that were
relevant to his defense without having to sift through all of the
pages in the documents. The three murder-related charges were
particularly suited to such a targeted approach. They concerned a
few individuals involved in a discrete set of events over a limited
time period.
When Roldan finally filed the continuance motion,12 it
stated generally that "Mr. Roldan-Cortes is being charged in the
second superseding [sic] returned July 16, 2000. Defendant's
attorney has not complied [sic] due to the reason that it is
impossible with so many documents to analyze and the evidence that
has been submitted to us by the government." The arguments that
Roldan presented orally at trial were similarly general. On the
first day of trial, his attorney, Efren Irizarry, announced:
We would like to state our position that we are not ready for trial, our client voluntarily surrendered less than two months ago, and some of the things that co-counsel
11 Roldan did not respond to the claim in the government's brief that the discovery provided was only approximately 4,500 pages. 12 Roldan did not include his motion as part of the record on appeal; however, we requested and received a copy from the district court.
-44- are mentioning here are totally new to me, due to the reason that it's impossible for ourselves to be reading the extensive thousands of documents that the US attorney has forwarded us, and we haven't been able to hear only about half of the tape recordings they have given us, and we were going to make an opening statement regarding -- we don't even know the totality of the discovery that we asked the government, and what it related to our client, and what doesn't, in a matter that imposes a capital crime.
Later that day, Irizarry interjected: "Your Honor, for the record,
I would just like to reproduce my motion that I haven't been able
to review all of the evidence." This statement prompted the court
to respond: "There is no need to further -- there is no need to
repeat the fact that you're not prepared a thousand times on this
record. You made your point." The court and Irizarry then had a
short exchange:
COURT: By the way, don't forget about the fact, Ms. [sic] Irizarry, that you had a conversation with me before this trial started, in which you wanted me to relieve you from further representing this individual because he had only paid you $25,000. IRIZARRY: No, Your Honor, $6,500. I filed a motion to it. COURT: Because it was too little money for you to sit in trial for two months.13
Despite his repeated complaints that the attorneys of the
co-defendants had more time to prepare cases for their clients,
13 As this exchange indicates, Roldan chose to have Irizzary represent him; the attorney was not appointed by the court.
-45- Irizarry's performance was comparable to that of the other
attorneys. Only one of the defendants presented an opening
statement to the jury, and only one witness, a pathologist who
provided expert testimony regarding Llaurador's remains, appeared
for any of the defendants. Irizzary was able to cross-examine the
government's chief witnesses, Soto and Ramos, with earlier
statements that they provided to the federal investigators and co-
conspirators. Further, although Roldan hired a new attorney to
prosecute this appeal, the brief filed on appeal does not identify
any specific deficiencies in Irizarry's performance or, as already
stated, specific examples of prejudice (save one) caused by the
denial of the continuance.14 See United States v. Moore, 362 F.3d
129, 136 (1st Cir. 2004) (observing that there was "ample
opportunity" between the sentencing hearing and the appeal for the
defendant to have reflected and identified specific prejudice from
the court's denial of his continuance motion).
As a specific example of prejudice resulting from the
denial of the continuance, Roldan cites his late discovery of a one
page report from the Aguadilla Police Department discussing
information from a confidential informant who implicated people
14 The attorney, Linda George, was actually hired after the trial but before sentencing. She made her first appearance on March 22, 2002.
-46- other than him in the shooting of Martin.15 Even though the
government provided that one page report to him during discovery,
he says that he failed to discover it in the mountain of produced
documents. Furthermore, he claims that his inability to find this
document prevented him from contacting the Aguadilla police to try
to obtain the supporting documentation for this one page report
that may have been contained in their investigative file.
Roldan makes a Brady claim about this police report which
we discuss in a later section of this opinion. It is sufficient
for our purposes here to note Roldan's lack of diligence in not
locating this one page police report prior to trial in the
discovery provided to him. If he had simply glanced at the
contents pages that accompanied the discovery packets, he would
have seen a heading marked "Documents Relating to Murder of James
Martin Rodriguez on May 20, 1993, are Listed as Numbers 195 to 215
Below," and then he would have seen an entry marked "208. Copy of
a report regarding confidential information received concerning
'Muerte occurrida en Res.' (1 p.)." Moreover, even the timely
discovery of this document by Roldan probably would not have
produced anything helpful at trial. Roldan's attorney noted at
oral argument that even though she had been actively trying to
obtain a copy of the investigative file from the Aguadilla Police
15 The confidential informant named four individuals involved in the shooting of Martin, none of whom were mentioned by Ramos in his account of the murder.
-47- Department for the past two years, she has been unable to do so.
This history underscores the absence of any prejudice in the denial
of Roldan's motion for a thirty day continuance.16 It confirms,
along with the other reasons cited, that the court's denial of
Roldan's continuance motion did not amount to a manifest abuse of
discretion. See Orlando-Figueroa, 229 F.3d at 41 ("While the trial
judge held defendants to a tough schedule, in the absence of a
showing of unfair prejudice to defendants, there was no manifest
abuse of discretion.").
2. Sufficiency of the Evidence
Roldan claims that the government did not introduce
sufficient evidence to convict him of aiding and abetting the
murder of a government informant based on his role in assisting
with Martin's murder. More specifically, he claims that the
government failed to demonstrate that he knew that he was aiding
and abetting the murder of a federal government informant. His
argument proceeds in two parts: (1) the government did not prove
that he knew that Pagan and Ramos were going to kill Martin; and
(2) even if he did, he did not know that Martin was going to
cooperate with federal authorities.
Roldan claims that the government proved that Pagan was
going to communicate with Martin and that "[a]ny number of
16 Roldan raises a further claim of prejudice concerning his inability to locate some exculpatory witnesses. We discuss that claim when we evaluate Roldan's claim for a new trial.
-48- communicative efforts were possible . . . from a slap on the wrist,
to menacing, to the infliction of various wavelengths of pain or
injury from a broad spectrum of possibilities, to murder." This
argument is specious. Roldan was an active and experienced member
of a drug smuggling ring when he helped to arrange Martin's murder
because Martin had become a government informant. Ramos testified
that Santodomingo told him that Roldan would instruct him regarding
what he was supposed to do when he arrived at the Ducos housing
project, and that Roldan identified Martin as the man whom Ramos
and Pagan were supposed to murder. Ramos also testified that Pagan
told him that Roldan gave him one-half of a kilo of cocaine as
payment for the murder. The argument that no rational jury could
have concluded that Roldan knew that Pagan was going to kill Martin
after reviewing this evidence is untenable.
Roldan's claim that the government failed to establish
the requisite federal nexus under the Witness Protection Act also
lacks merit. He argues that the government failed to prove that
Roldan aided and abetted Martin's murder with the belief that
Martin might communicate with federal officials regarding the drug
conspiracy. However, as we have already noted in our discussion of
Rodriguez's similar claim, the Witness Protection Act explicitly
relieves the government of having to prove that the defendant
believed that the witness might contact federal officials regarding
the federal crime. See 18 U.S.C. § 1512(g) (stating that "[i]n a
-49- prosecution for an offense under this section, no state of mind
need be proved with respect to the circumstance . . . that the law
enforcement officer is an officer or employee of the Federal
Government"); United States v. Baldyga, 233 F.3d 674, 680-81 (1st
Cir. 2000) ("We also want to dispel any notion that the defendant's
intent to hinder communication must include an awareness of the
possible involvement of federal officials."). The evidence
demonstrates that Roldan aided and abetted Martin's murder because
he was concerned that Martin might "snitch" about the
organization's smuggling activities. As it turns out, Martin had,
in fact, begun cooperating with the federal authorities. This
evidence was sufficient to establish the federal nexus. See United
States v. Bell, 113 F.3d 1345, 1349 (3d Cir. 1997) ("[T]he
government must prove that at least one of the
law-enforcement-officer communications which the defendant sought
to prevent would have been with a federal officer, but . . . is not
obligated to prove that the defendant knew or intended anything
with respect to this federal involvement.").
Furthermore, we reject Roldan's claim that the court's
instruction regarding the state of mind requirement for conviction
under section 1512 was inconsistent or confusing. While failure to
raise a timely objection to a jury instruction limits our review to
plain error (there was no such objection here), see United States
v. Sabetta, 373 F.3d 75, 80 (1st Cir. 2004), there was no error at
-50- all in the jury instruction. The court properly explained the
requirements outlined by section 1512.
3. Severance
Citing the prejudicial impact of the gruesome details
that were presented to the jury about the Caballo and Llaurador
murders and the relatively minor role he played in the charged
conspiracy, Roldan claims that the trial court erroneously denied
his motion to sever his trial from that of his co-defendants. "The
decision to grant or deny a motion for severance is committed to
the sound discretion of the trial court and we will reverse its
refusal to sever only upon a finding of manifest abuse of
discretion." United States v. Brandon, 17 F.3d 409, 440 (1st Cir.
1994); see also United States v. Searing, 984 F.2d 960, 965 (8th
Cir. 1993) ("In the context of conspiracy, severance will rarely,
if ever, be required.").
While Fed. R. Crim. P. 8(b) allows the government to
charge multiple defendants in the same indictment "if they are
alleged to have participated in the same act or transaction or in
the same series of acts or transactions constituting an offense or
offenses," a companion rule allows a court to order separate trials
or to "provide any other relief that justice requires" if such
joinder appears to prejudice a defendant or the government. Fed.
R. Crim. P. 14(a). "Prejudice from joinder can come in various
forms, including jury confusion, the impact of evidence that is
-51- admissible against only some defendants, and 'spillover' effects
where the crimes of some defendants are more horrific or better
documented than the crimes of others." United States v.
Innamorati, 996 F.2d 456, 469 (1st Cir. 1993). However, "it is
settled that defendants are not entitled to severance merely
because it would improve their chances of acquittal," id., and
"[c]o-conspirators are customarily tried together absent a strong
showing of prejudice," United States v. Perkins, 926 F.2d 1271,
1280 (1st Cir. 1991); see also Zafiro v. United States, 506 U.S.
534, 537 (1993) (observing that "[t]here is a preference in the
federal system for joint trials of defendants who are indicted
together" before concluding that the co-defendants' adoption of
mutually exclusive defenses did not demonstrate a sufficient
showing of prejudice).
Arguing in vivid terms that "[t]he Roberto [Caballo] and
Llaurador murders featured intensely graphic details about torture,
decapitation and dismemberment that swept up Roldan in a sea of
bloody evidence irrelevant to his actual criminal conduct," Roldan
overlooks the fact that all three murders were listed as overt acts
undertaken in furtherance of the conspiracy charged in the first
count of the second superseding indictment. These overt acts were
all relevant to the jury's consideration of Roldan's criminal
culpability for the drug conspiracy. See Casas, 356 F.3d at 112
(affirming trial court's denial of a severance motion by concluding
-52- that testimony that did not directly implicate the defendant would
have been admissible to show the scope of the conspiracy in which
he knowingly participated); Brandon, 17 F.3d at 440 ("The
government presented sufficient evidence to show that all
defendants were involved in a single interdependent conspiracy
. . . and most of the evidence at trial was related to the
development and operation of that conspiracy.").
Even if the evidence about the Caballo and Llaurador
murders was relevant to the drug conspiracy charge, Roldan argues
that the gruesome details of these murders unfairly prejudiced him
at trial. This argument overlooks the sordid details of the murder
in which Roldan was directly implicated. Although Roldan did not
actually pull the trigger, he aided and abetted the vicious murder
of Martin, whose body was riddled with seventeen bullet wounds.
Given this graphic evidence, we cannot say that the graphic
evidence relating to the Caballo and Llaurador murders was so
prejudicial that the case against Roldan had to be severed.
Houlihan, 92 F.3d at 1295 (noting that all of the defendants used
violence to further the charged conspiracy as part of its
justification for rejecting a claim that co-conspirators' trials
should have been severed because of prejudicial impact of testimony
regarding murders in which some defendants were not implicated).
As we have previously held, the prime factor that a court
must consider in evaluating a severance motion "is whether the
-53- court may reasonably expect the jury to collate and appraise the
independent evidence against each defendant." Perkins, 926 F.2d at
1281 (internal quotation marks omitted); see also United States v.
Di Pasquale, 740 F.2d 1282, 1294 (3d Cir. 1984) ("We must determine
whether the jury could reasonably be expected to compartmentalize
the evidence against the various defendants and to consider it for
its proper purposes.") (internal quotation marks omitted). Despite
the length of the trial and the number of witnesses called, this
was not a particularly complex case. There were only three
defendants and they each bore comparable degrees of culpability.
Cf. Zafiro, 506 U.S. at 535 (noting that "[w]hen many defendants
are tried together in a complex case and they have markedly
different degrees of culpability, th[e] risk of prejudice is
heightened"). The district court instructed the jury that,
although the defendants were joined for trial, it "must decide the
case of each defendant and each crime charged against that
defendant separately." Innamorati, 996 F.2d at 469 (citing the
court's issuance of this customary instruction in concluding that
it was unlikely that the jury was confused).
In arguing that he suffered greater prejudice from
spillover than the other defendants, Roldan observes that "of the
28 overt acts and numerous allegations of serious criminal activity
[identified in the first count of the second superseding
indictment] only four paragraphs 1, 3, 7, and 8 set forth
-54- allegations that include [Roldan]." That argument is misleading in
two respects. First, the overt actions cited in those paragraphs
allege that Roldan helped to plan and execute multi-hundred
kilogram shipments of cocaine into Puerto Rico and that he
participated in the murder of a suspected informant, Martin. Far
from suggesting that he was a minor player, these allegations
present Roldan as a key figure in this conspiracy. Second, the
evidence at trial demonstrated that Roldan had many
responsibilities within the drug organization that went beyond the
overt acts cited in the indictment, e.g., providing security during
drug shipments. Therefore, the allegations in the indictment
appear to understate his actual involvement. For this reason as
well as the other reasons cited, the court did not abuse its
discretion in denying Roldan's severance motion.17
4. Brady and a Rule 33 Violation
Roldan also raises a Rule 33 claim, arguing that the
district court should have granted him a new trial based on newly-
17 We reject Roldan's related claim of prejudice directed at the court's failure to provide a special limiting instruction to the jury regarding the evidence of the Caballo and Llaurador murders, apart from the customary instruction regarding the responsibility to conduct individualized analyses of the evidence for each defendant. Although Roldan requested such an instruction in the middle of the trial, he failed to remind the court to issue the instruction at the end of the trial. Faced with the defendant's failure to raise a timely objection to the court's omission, we review the proffered instruction for plain error. United States v. Barrett, 539 F.2d 244, 249 (1st Cir. 1976). As can be deduced from our severance discussion, there was no plain error here.
-55- discovered exculpatory evidence. He fuels his argument by drawing
on Brady v. Maryland, 373 U.S. 83, 87 (1963), in which the Supreme
Court held that "the suppression by the prosecution of evidence
favorable to an accused . . . violates due process where the
evidence is material either to guilt or to punishment, irrespective
of the good faith or bad faith of the prosecution."
As noted above in our discussion of Rodriguez's Rule 33
motion, if a defendant seeks a new trial on the basis of newly-
discovered evidence without making a Brady claim, the defendant
must show that: "(1) the evidence was unknown or unavailable to the
defendant at the time of trial; (2) failure to learn of the
evidence was not due to lack of diligence by the defendant; (3) the
evidence is material, and not merely cumulative or impeaching; and
(4) [a new trial] will probably result in an acquittal upon retrial
of the defendant." Wright, 625 F.2d at 1019. "However, if the new
trial motion is based on an alleged Brady violation, the tests for
the third and fourth prongs of the Wright framework differ from
those applied to an ordinary Rule 33 motion." United States. v.
Colon-Munoz, 318 F.3d 348, 358 (1st Cir. 2003). In the ordinary
Rule 33 newly-discovered evidence context, "the evidence must
create an actual probability that an acquittal would have resulted
if the evidence had been available." Sepulveda, 15 F.3d at 1220.
"However, if the government possessed and failed to disclose Brady
evidence, a new trial is warranted if the evidence is 'material' in
-56- that there is a 'reasonable probability . . . sufficient to
undermine confidence in the outcome' that the evidence would have
changed the result." Colon-Munoz, 318 F.3d at 358 (quoting United
States v. Bagley, 473 U.S. 667, 682 (1985)). See also Kyles v.
Whitley, 514 U.S. 419, 434 (1995) ("The question [as defined by
Bagley] is not whether the defendant would more likely than not
have received a different verdict with the evidence, but whether in
its absence he received a fair trial, understood as a trial
resulting in a verdict worthy of confidence.").
a. Roldan's First Motion for a New Trial
Roldan presented two written motions and one oral motion
for a new trial in the district court. He filed his first written
motion on April 23, 2001, claiming that the discovery of three
allegedly new pieces of evidence warranted a new trial: (1) a
statement purportedly made by Santodomingo at a government
debriefing session in which he exculpated Roldan from involvement
in the drug conspiracy and Martin's murder; (2) the one page police
report citing statements from a confidential informant that
supposedly cast doubt on Roldan's participation in the Martin
murder;18 and (3) a letter allegedly written by Pagan denying
Roldan's involvement in Martin's murder. On May 22, 2001, in a
18 This is the same document that we described in our earlier discussion of Roldan's claim of prejudice from the denial of his motion for a continuance. See supra Part II.C.1.
-57- lengthy and well-reasoned ruling, the district court denied each
claim in the written motion.
i. Santodomingo's Statement
On April 18, 2001, after the trial in this case,
Santodomingo participated in a telephone conference call with his
attorney, his case manager, and Roldan's attorney, in which he
insisted that Roldan was not involved in the drug conspiracy and
that Roldan did not participate in Martin's murder. He claimed to
have given this information to a local prosecutor and federal
agents during an interview that was held after he decided to plead
guilty.19 Santodomingo also told the participants in the conference
call that he would be willing to testify to Roldan's innocence.
The district court held that Santodomingo's statements
were insufficient to justify a new trial on Brady grounds. Noting
that there was no support in the record for his claim that he was
debriefed by federal agents, and that the government denied that
any such interview occurred, the court held that the government did
not possess exculpatory statements from Santodomingo and,
consequently, there was no Brady violation.
19 Simply stating that this alleged debriefing meeting occurred "[a]fter he pled guilty pursuant to plea negotiations," Santodomingo does not state whether this meeting occurred before or after Roldan's trial. For the purposes of our Brady analysis, we will assume that Santodomingo alleges that this debriefing meeting occurred prior to Roldan's trial.
-58- The court then evaluated Santodomingo's statements under
the Wright factors to determine whether Roldan was entitled to a
new trial under Rule 33. Concluding that Roldan failed to exercise
due diligence to obtain exculpatory evidence from Santodomingo
prior to trial and that, as a convicted drug-dealing kingpin,
Santodomingo would have little credibility with jurors, the court
rejected Roldan's claim. More specifically, the court stated that
"we dismiss his claim that the belated, self-serving statements
given by the ringleader of a drug-smuggling organization denying
participation in a murder merits a new trial or even an evidentiary
hearing pursuant to Rule 33."20 There was no error in this ruling.
ii. The Police Report
The police report, the one page investigative document
filled out by a local police officer in Aguadilla, cited
information obtained from a confidential informant who said that
Martin was murdered by individuals named Atan, Malecon, Roman, and
Manteca. Significantly, according to Roldan, the report did not
identify Roldan, Pagan or Ramos as having participated in the
murder.
20 The government observed in its appellate brief that Santodomingo's assertion that Roldan was not involved in any drug smuggling activity contradicted the statement of facts in his plea agreement as well as a United States Customs Service investigative report, in which Roldan admitted that he operated a drug point with Valle-Lassalle and that he had "performed several drug transactions."
-59- Noting that the government provided a copy of this report
to the defendants in one of its pretrial discovery packages, the
district court stated that Roldan "is apparently claiming that the
government committed a Brady violation by failing to draw [Roldan's
attorney's] attention to the potentially exculpatory documents
before or at trial." The court quickly dismissed that claim,
stating: "Defendant has not cited any case law in support of this
proposition, and our own thorough research has not revealed any
such authority." Moreover, Roldan's receipt of the report during
discovery precluded his claim that it constituted newly-discovered
evidence. The court observed: "Had defense counsel thoroughly
examined the discovery materials provided by the government,
Defendant could have learned of the police report and investigated
the matter accordingly. Defense counsel had the evidence available
to him at the time of trial." We agree.
iii. Pagan's Letter
Finally, the court turned to a letter that Roldan
allegedly received from his co-conspirator Pagan, in which Pagan
said that he killed Martin during a mugging and that Roldan was not
involved with the death. Pagan was a fugitive from justice at the
time. After noting that the letter "utterly fails to meet the
Wright standard" because it was inadmissible hearsay, see Fed. R.
Evid. 804(b)(3) ("A statement tending to expose the declarant to
criminal liability and offered to exculpate the accused is not
-60- admissible unless corroborating circumstances clearly indicate the
trustworthiness of the statement."), the court stated that it found
it "highly troubling" that Roldan was able to contact Pagan to give
him his mailing address while Pagan was a fugitive from justice.
The court observed that an arrest warrant had been issued for Pagan
on July 16, 2000, but that he had not yet been brought into
custody. Again, we find no error in the court's denial of the
motion for a new trial.
b. The Oral Motion at the Sentencing Hearing
Roldan attempted to reopen the motion for a new trial at
his sentencing hearing on May 2, 2002. Citing three allegedly new
sources of exculpatory information, he stated that: (1) Pagan had
now been arrested and was willing to testify on Roldan's behalf;
(2) his private investigator identified three new witnesses who
could testify as to his whereabouts at the time that Martin was
murdered; and (3) his private investigator had discovered that the
one page police report that he obtained during discovery was part
of a larger investigative file stored at the local police
department in Aguadilla. After Roldan completed his arguments, the
government gave the court a sealed report from the United States
Customs Service pertaining to Pagan's arrest.
The court summarily dismissed Roldan's claims, again
concluding that the new evidence would not have altered the result
of the trial and that it was not going to reconsider its denial of
-61- the new trial motion. Although the court did not cite lack of
diligence in its ruling, we note that there is no evidence that
Roldan tried to locate any of these exculpatory witnesses, one of
whom was his sister, prior to or during the trial. Nor was there
evidence that he tried to obtain the larger police investigative
file from the local police department. On this ground as well, the
material cited by Roldan at the sentencing hearing did not meet the
requirements of the Wright test.
Roldan's effort to raise a Brady claim on the basis of
the police investigative file is also unpersuasive. He claimed,
without authority, that once the government saw the one page
investigative report, it had a duty under Brady to contact the
local police investigators, obtain a complete copy of the
investigative file, and turn any exculpatory material over to the
defense. There is no evidence that the government was working with
the local police on this case, cf. Kyles, 514 U.S. at 437 (stating
that individual prosecutors have the duty to learn about evidence
known to others acting on the government's behalf), and there is no
support for such a dramatic expansion of the Brady doctrine. Since
there is no evidence that the government possessed a copy of the
file prior to trial, there was no Brady violation here.21
21 The record indicates that Roldan has continued to try to obtain a copy from the Aguadilla Police Department of this investigative report on grounds, and under circumstances, that are less than clear. These continuing efforts do not affect our analysis of the court's disposition of Roldan's oral motion for a
-62- Finally, the court stated that the sealed statement from
the Customs Service regarding Pagan's arrest did not exculpate or
otherwise aid Roldan. We reviewed the document and agree with the
district court's assessment.
c. Roldan's Third Motion for a New Trial
Roldan filed a renewed motion for a new trial on March
12, 2003, while this appeal was pending. Once again, he claimed
that Pagan was willing to testify that Roldan had nothing to do
with Martin's murder. He submitted a two page unsworn statement
signed by Pagan on October 10, 2002, in which Pagan stated: "Luis
Roldan-Cortes A.K.A. Wisi had nothing to do with the murder of
James Martin Rodriguz and I told this to the US Attorney who came
to see me in February of 2002." The district court was again
unimpressed:
Pagan-Cerezo is a recently-captured fugitive who has admitted to, and more recently pled guilty to, the murder at issue here. Given our grave familiarity with the witnesses and participants in this case, we find Pagan- Cerezo to be an individual with very limited credibility.
Noting that part of Pagan's letter was inconsistent with the
earlier letter that he sent, the court concluded that "[w]e see
little reason to believe that a jury would credit Pagan-Cerezo's
testimony over that of the government's informants." The district
court was in the best situation to make this judgment. There was
new trial.
-63- no error in the ruling. Moreover, Roldan's claim that the
government withheld exculpatory statements made by Pagan when he
was arrested in violation of Brady is misplaced because Pagan was
not arrested until after the trial and because the sealed document
does not contain any exculpatory material.
5. Apprendi and Blakely
Roldan claims that the court violated his rights under
Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v.
Washington, 124 S. Ct. 2531 (2004), by not requiring the jury to
determine the quantity of drugs that should be attributed to him.22
Apprendi held that "[o]ther than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt." 530 U.S. at 490. Blakely, in
turn, clarified that "the 'statutory maximum' for Apprendi purposes
is the maximum sentence a judge may impose solely on the basis of
the facts reflected in the jury verdict or admitted by the
defendant." 124 S.Ct. at 2537 (emphasis in original). While
Blakely itself "express[ed] no opinion" on the constitutionality of
the Sentencing Guidelines, id. at 2538 n.9, we would be remiss to
ignore it completely, particularly in light of the Supreme Court's
widely anticipated clarification of how (if at all) Blakely applies
22 Blakely was decided three months after oral argument in this case. Roldan subsequently filed a notice of supplemental authority under Fed. R. App. P. 28(j).
-64- to the federal Sentencing Guidelines. See, e.g., United States v.
Booker, 375 F.3d 508 (7th Cir. 2004) (holding Sentencing Guidelines
unconstitutional to the extent that they require judicial
factfinding), cert. granted, 73 U.S.L.W. 3074 (Aug. 2, 2004).
Roldan's Apprendi/Blakely argument focuses on his
conviction and sentence under count one of the second superseding
indictment, which charged him with conspiracy to "unlawfully
possess with the intent to distribute multi-kilogram quantities of
cocaine . . . in excess of five (5) kilograms and multi-hundred
pound quantities of marijuana." Section 841, the provision that
contains the relevant sentencing range for this offense,
establishes that the range for such a violation "may not be less
than 10 years or more than life." 21 U.S.C. § 841(b)(1)(A). The
jury was specifically asked with regard to each defendant if "this
conspiracy involve[d] at least 5 kilograms of cocaine," and it
answered "Yes" with regard to Roldan.
The jury's finding that Roldan conspired to possess with
intent to distribute at least five kilograms of cocaine exposed him
to a life sentence under the relevant sentencing statute. Under
post-Apprendi, pre-Blakely law, this fact would end the
constitutional analysis because Roldan's life sentence did not
"increase[] the penalty for a crime beyond the prescribed statutory
maximum" as the term "statutory maximum" was then understood.
Apprendi, 530 U.S. at 490. But Blakely casts doubt on that logic.
-65- If the district court had calculated the conspiracy sentence solely
on the basis of judicial findings of the quantity of drugs
involved, see, e.g., U.S.S.G. §§ 2D1.1(b) & 3B1.1, there might have
been a Blakely issue here.
On these facts, however, there is no Blakely issue. The
district court recognized that Roldan was involved in a murder
relating to his drug activity, and applied the murder cross-
reference in the drug conspiracy guideline. See U.S.S.G. §
2D1.1(d)(1) (cross-referencing to first degree murder guideline
"[i]f a victim was killed under circumstances that would constitute
murder . . . had such killing taken place within the territorial or
maritime jurisdiction of the United States"). The first degree
murder guideline, in turn, mandates a life sentence. See id. §
2A1.1 (setting base offense level of forty-three for first degree
murder); id. Ch. 5 Pt. A (mandating life sentence for offense level
of forty-three). The jury had already decided that, in the course
of the conspiracy, a victim (Martin) was killed under circumstances
that would constitute murder had the killing occurred within the
federal criminal jurisdiction. In fact, though it is not necessary
to the analysis, the jury convicted Roldan (in three different
ways) of personally aiding and abetting in that murder.
In sum, application of the murder cross-reference was
based on a factual issue decided by the jury, not the judge.
Consequently, there was no violation of either Apprendi or Blakely.
-66- 6. Downward Departure
Finally, Roldan argues that the district court denied his
application for a downward departure at sentencing based on an
erroneous understanding of its authority to grant such a departure.
He does not support this claim with any evidence of the court's
misapprehension; he simply notes that the court did not explicitly
rule on his request for a downward departure. After reviewing the
record of the sentencing hearing, we conclude that the district
court understood its authority to grant a departure and that it
exercised its discretion to refuse to do so. Accordingly, we lack
jurisdiction to review the court's refusal to depart. See United
States v. Rodriguez, 327 F.3d 52, 54 (1st Cir. 2003).
III.
For the foregoing reasons, we VACATE Genao's convictions
on counts two and three of the second superseding indictment and
REMAND to the district court for a new trial on those charges if
the government wishes to so proceed, and for resentencing. We
AFFIRM Genao's conviction on count one as well as the convictions
and sentences of Rodriguez and Roldan.
So Ordered.
-67- Appendix
Roster of Conspiracy Members and Other Individuals Involved in the Case
Name Relationship to the Current Status Conspiracy Raul Santodomingo- A leader of the Indicted in the Romero conspiracy first superseding indictment and pled guilty Victor M. Valle- A leader of the Indicted in the Lassalle, a/k/a conspiracy second superseding "Manolo" indictment and pled guilty Omar Genao-Sanchez, Member of the Indicted in the a/k/a "Omi" conspiracy second superseding indictment and convicted at this trial Jose Rodriguez- Member of the Indicted in the Marrero, a/k/a conspiracy second superseding "Zurdo" indictment and convicted at this trial Luis Roldan-Cortez, Member of the Indicted in the a/k/a "Wisi" conspiracy second superseding indictment and convicted at this trial David Rafael Ramos- Member of the Pled guilty and Rivera, a/k/a conspiracy became a government "Pecas" informant Javier E. Soto- Member of the Pled guilty and Alarcon, a/k/a conspiracy became a government "Chester" informant James Martin- Member of the Murdered after he Rodriguez, a/k/a conspiracy became a government "Kiri" informant
-68- Carlos Roberto Member of the Murdered when he Rodriguez Torres, conspiracy threatened to alert a/k/a "Robert Colombians that Caballo" Valle-Lassalle stole some cocaine from them Edward Llaurador Member of the Murdered after he Rodriguez conspiracy became a government informant Jose Hernandez- Member of the Murdered by a rival Jimenez, a/k/a conspiracy drug gang "Chelo" Anibal Pagan- Member of the Indicted in the Cerezo, a/k/a "El conspiracy second superseding Cojo" indictment and pled guilty Nicholas Peña Member of the Indicted in the Gonzalez conspiracy second superseding indictment and pled guilty Angela Ayala Fellow smuggler Charged in a separate conspiracy Henry Pamias, a/k/a Fellow smuggler who Charged in a "Macho from Cataño" helped to transport separate conspiracy some of the organization's smuggling loads
-69-