United States Court of Appeals For the First Circuit
No. 14-1976
UNITED STATES OF AMERICA,
Appellee,
v.
CARLOS E. RODRÍGUEZ-MILIÁN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Lynch, Selya and Lipez, Circuit Judges.
Luis A. Guzmán Dupont for appellant. Jenifer Y. Hernández-Vega, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Francisco A. Besosa-Martínez, Assistant United States Attorney, were on brief, for appellee.
April 19, 2016 SELYA, Circuit Judge. A party who fails to preserve
potential claims of error in the trial court usually encounters
strong headwinds on appeal. So it is here. Concluding that the
appellant's asseverational array is largely unpreserved and wholly
unpersuasive, we affirm his conviction and sentence. We
nonetheless remand to allow the district court to consider a
sentence reduction under a recent amendment to the sentencing
guidelines.
I. BACKGROUND
We recite the background facts "in the light most
hospitable to the verdict, consistent with record support." United
States v. Maldonado-García, 446 F.3d 227, 229 (1st Cir. 2006).
Starting in 2005, a drug-trafficking organization headed by the
notorious Junior Cápsula smuggled cocaine by sea from the Dominican
Republic into Puerto Rico aboard yawls specially retrofitted with
secret compartments. After law enforcement personnel seized two
of the vessels, the drug ring began to consider alternative modes
of transportation (including airplanes).
In June of 2009, defendant-appellant Carlos E.
Rodríguez-Milián became involved with a scheme to fly drug
shipments from the Dominican Republic to Puerto Rico and to ferry
cash on return flights. Shortly after this plot was hatched, the
appellant purchased a small aircraft that he thereafter used to
transport a leader in the drug ring from Puerto Rico to the
- 2 - Dominican Republic. Later that summer, the appellant and a
confederate, Jeffrey Núñez-Jiménez (Núñez), transported roughly
$500,000 in illegal drug-sale proceeds from Puerto Rico to the
Dominican Republic.
A subsequent flight by the two men in the appellant's
recently-purchased airplane took place on August 22, carrying a
cargo of no less than 50 kilograms of cocaine. Spotted on radar
when it entered Puerto Rican airspace, their airplane aroused
suspicion because it failed to communicate with anyone, flew past
Borinquen Airport, and descended instead into Arecibo Airport
(which was not an authorized port of entry for international air
traffic). The airplane landed before any law enforcement personnel
arrived to investigate. Two men (later identified as Diego Pérez
and Fernando Nieves) approached the aircraft, while a third man,
José Marrero-Martell, watched from a nearby automobile. Marrero-
Martell testified that Junior Cápsula had told him that he
(Cápsula) had delivered cocaine to the appellant and Núñez. Junior
Cápsula then added that Marrero-Martell should pick up the drugs
from the airport.
An airport security guard became inquisitive at the
sight of all the activity around the appellant's aircraft. When
the guard approached, the appellant told Pérez that he would
distract the guard while the bags were unloaded. The appellant
told the guard (falsely) that Pérez and Nieves had arrived by
- 3 - parachute. The guard then instructed the appellant not to take
off until customs officials could arrive, and shortly thereafter
put the appellant on the telephone with a customs agent. The
appellant suggested that the landing at Arecibo was due to
electrical problems and that his real destination was Isla Grande
Airport. In the meantime, the other three men (Pérez, Nieves, and
Núñez) unloaded bags filled with cocaine from the aircraft and
stashed them in a waiting automobile. The car then departed and
— about 35 minutes after landing at Arecibo — the appellant and
Núñez flew away before customs officials could arrive.1
In due season, a federal grand jury returned an
indictment that targeted, among other things, the broad drug-
trafficking conspiracy headed by Junior Cápsula. One count of the
indictment, however, charged the appellant with participating in
a narrower conspiracy to import five or more kilograms of cocaine
into the customs territory of the United States. See 21 U.S.C.
§§ 952(a), 963. At trial, Marrero-Martell and Pérez testified for
the government as cooperating witnesses. The jury found the
appellant guilty on the single count lodged against him and, on
August 22, 2014, the district court sentenced him to serve a 235-
month term of immurement. This timely appeal ensued.
1 No repairs to the aircraft were made (or even attempted) at Arecibo, and the jury reasonably could have found that the appellant's tale about electrical problems was a ruse.
- 4 - II. ANALYSIS
The appellant, represented on appeal by new counsel,
attacks on several fronts. His claims of error can conveniently
be segregated into four tranches. We address each tranche
separately and then tie up a loose end.
A. Sufficiency of the Evidence.
The appellant's flagship claim is that the government
failed to prove beyond a reasonable doubt his specific intent to
engage in a conspiracy to traffic narcotics. Since the appellant
did not at any time move for judgment of acquittal below, see Fed.
R. Crim. P. 29, we review this claim only for clear and gross
injustice, see United States v. Gobbi, 471 F.3d 302, 309 (1st Cir.
2006); United States v. Greenleaf, 692 F.2d 182, 185 (1st Cir.
1982); see also Magee v. BEA Constr. Corp., 797 F.3d 88, 90 & n.2
(1st Cir. 2015). Nothing of the sort occurred here.
In considering a claim of evidentiary insufficiency, "we
must take the facts in the light most hospitable to the
prosecution, drawing all reasonable inferences in its favor."
United States v. Hadfield, 918 F.2d 987, 996 (1st Cir. 1990). We
are not at liberty to question the credibility of witnesses. See
United States v. O'Brien, 14 F.3d 703, 706 (1st Cir. 1994).
Moreover, we are constrained to recognize that "[r]eliance on
indirect, as opposed to direct, evidence in a criminal case is
both permissible and commonplace." United States v. Spinney, 65
- 5 - F.3d 231, 234 (1st Cir. 1995). Even with respect to a preserved
challenge to the sufficiency of evidence, the verdict must stand
as long as it derives support from a "plausible rendition of the
record." United States v. Ortiz, 966 F.2d 707, 711 (1st Cir.
1992).
To sustain a conviction for conspiracy, the government
must show "beyond a reasonable doubt that a conspiracy existed and
that a particular 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 existence of
a conspiracy, as well as a particular defendant's membership in
it, may be "inferred from the defendant['s] words and actions and
the interdependence of activities and persons involved." United
States v. Boylan, 898 F.2d 230, 241-42 (1st Cir. 1990). "The
government need not show that each conspirator knew of or had
contact with all other members. Nor need it show that the
conspirators knew all of the details of the conspiracy or
participated in every act in furtherance of the conspiracy."
United States v. Soto-Beníquez, 356 F.3d 1, 19 (1st Cir. 2003).
The conspiratorial agreement may be tacit or express and
may be proved by circumstantial evidence. See Sepulveda, 15 F.3d
at 1173. To prove a defendant's participation in a conspiracy,
the government must show two types of intent: the defendant's
intent to join the conspiracy and his intent to perpetrate the
- 6 - underlying substantive offense. See United States v. Rivera-
Santiago, 872 F.2d 1073, 1079 (1st Cir. 1989). This, of course,
requires a showing that the defendant had knowledge of the
underlying substantive offense and that he "both intended to join
the conspiracy and intended to effectuate the objects of the
conspiracy." United States v. Burgos, 703 F.3d 1, 11 (1st Cir.
2012) (quoting United States v. Dellosantos, 649 F.3d 109, 116
(1st Cir. 2011)).
The record here is more than ample to show that the
appellant knowingly entered into an agreement with other
miscreants to commit the underlying offense: smuggling cocaine
into the United States. The jury reasonably could have found that
the appellant joined members of the drug-trafficking ring, agreed
to transport drugs and drug money by air between the Dominican
Republic and Puerto Rico, undertook the August 22 flight after one
of the coconspirators (Marrero-Martell) received instructions from
the drug kingpin (Junior Cápsula), and knowingly agreed to
participate in the smuggle. The appellant's eager participation
in the venture is evident from his course of conduct: he financed
the purchase of an airplane, flew it from the Dominican Republic
to Puerto Rico, and attempted to cover up the smuggling in his
dealings with both a security guard at the airport in Arecibo and
a customs agent.
- 7 - The appellant now contends that he was merely present,
not culpably present. See Ortiz, 966 F.2d at 712 (explaining the
difference). The record, however, belies this disclaimer: it makes
manifest that the appellant participated knowingly at several key
points in the conspiracy. A jury surely could have inferred — as
this jury did — the existence of a conspiracy and the appellant's
membership in it.
The appellant's fallback position is that the government
never established that he knew that the bags he was transporting
contained cocaine. This position is untenable: the jury reasonably
could have concluded that the appellant traveled to the Dominican
Republic with Núñez for the specific purpose of transporting drugs.
Núñez informed Marrero-Martell that an aircraft could be used for
the specific purpose of smuggling large quantities of cocaine into
Puerto Rico. Núñez and the appellant received the drugs from the
operation's kingpin, Junior Cápsula, and made the trip at his
direction. Once in Arecibo, the appellant distracted the security
guard at the airport while the cargo was unloaded, and lied to
both the guard and a customs official. He then decamped without
waiting for customs officials to arrive. Though it is possible
that the bags contained some innocent cargo (say, cucumbers),
courts and jurors are not expected to put their common sense into
cold storage. Given the record evidence here, there was no clear
and gross injustice in upholding a jury finding that the appellant
- 8 - knew the bags contained cocaine. Any other conclusion would blink
reality.
B. Prejudicial Variance.
The appellant next asserts that a prejudicial variance
occurred.2 Because he neglected to advance any such assertion in
the district court, we review only for plain error. See United
States v. Seng Tan, 674 F.3d 103, 110-11 (1st Cir. 2012). To clear
this hurdle, an appellant must show: "(1) that an error occurred
(2) which was clear or obvious and which not only (3) affected the
defendant's substantial rights, but also (4) seriously impaired
the fairness, integrity, or public reputation of judicial
proceedings." United States v. Duarte, 246 F.3d 56, 60 (1st Cir.
2001). There is no plain error here.
To prevail on a prejudicial variance claim, an appellant
must show a material factual difference between the crime charged
in the indictment and the crime proved at trial. See United States
v. Fenton, 367 F.3d 14, 18 (1st Cir. 2004). He also must show
prejudice. See id. Here, there was no variance.
The indictment charged both an overarching conspiracy
(count 1), for which the appellant was not charged, and a narrower
2Although the appellant also hints that there may have been a "constructive amendment" of the indictment, he never developed that argument in his brief. Consequently, we deem any such claim waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
- 9 - conspiracy (count 3), for which the appellant was charged. The
appellant says that although the government charged him with the
narrower conspiracy (involving the smuggling activity that took
place on August 22, 2009), it only proved the broader conspiracy.
We do not agree.
The evidence presented by the government and admitted
against the appellant at trial pertained directly to the particular
conspiracy charged against him. The government proved, step by
step, each and every element of that conspiracy. The fact that
some of the government's evidence also touched upon aspects of the
broader conspiracy, without more, does not work a variance. See
United States v. Fisher, 3 F.3d 456, 463 (1st Cir. 1993); United
States v. Innamorati, 996 F.2d 456, 477-78 (1st Cir. 1993). Here,
there was no "more."
In all events, a claim of prejudicial variance by
definition necessitates a showing of prejudice — and in this case,
there was no prejudice. As in Fisher, the appellant was, at worst,
"convicted of and sentenced for a conspiracy smaller in scope and
breadth than that for which he may have, in fact, been culpable."
3 F.3d at 463 n.19. Given that circumstance, any variance between
the indictment and the proof could not conceivably have affected
the appellant's substantial rights. See, e.g., United States v.
Mangual-Santiago, 562 F.3d 411, 423 (1st Cir. 2009).
- 10 - C. Alleged Trial Errors.
Battling on, the appellant labors to raise claims of
trial error. Because none of these claims was preserved below,
our review is limited to plain error. See Duarte, 246 F.3d at 60.
For the most part, the appellant's claims of trial error
boil down to a single claim: he seeks to persuade us that the
admission of certain coconspirator statements was improper. We
approach this claim mindful that a statement "made by the party's
coconspirator during and in furtherance of the conspiracy" does
not come within the hearsay proscription. Fed. R. Evid.
801(d)(2)(E). For the prosecution to engage the gears of Rule
801(d)(2)(E), however, there must be evidence that a conspiracy
existed involving the declarant and the defendant. See Bourjaily
v. United States, 483 U.S. 171, 175 (1987). Although the trial
court may allow the introduction of such statements de bene, that
court is charged with making a gatekeeper determination before
allowing the jury to consider such evidence. See Ortiz, 966 F.2d
at 715; United States v. Petrozziello, 548 F.2d 20, 22-23 (1st
Cir. 1977); see also United States v. Ciampaglia, 628 F.2d 632,
638 (1st Cir. 1980) (limning proper procedure for making what in
this circuit is known as a "Petrozziello" determination). In
making such a determination, the trial court is to use a
preponderance of the evidence standard. See United States v.
Angiulo, 897 F.2d 1169, 1201 (1st Cir. 1990).
- 11 - Here, however, there is a rub: the appellant did not
object to the admission of the coconspirators' statements, did not
ask the district court to admit them de bene, and did not object
to the district court's omission of a Petrozziello determination.
It is common ground that a defendant's failure to object to the
trial court's omission of an explicit Petrozziello determination
forecloses the defendant from attacking the omission on appeal,
save for plain error. See United States v. Perkins, 926 F.2d 1271,
1283 (1st Cir. 1991); Ciampaglia, 628 F.2d at 638.
Plain error is plainly absent here. The record is
replete with preponderant evidence showing both the existence of
the charged conspiracy and the membership in it of the appellant,
Núñez, Marrero-Martell, Pérez, Nieves, and Junior Cápsula.
With respect to the admitted evidence itself, the
appellant has largely waived any further argument. See United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). He has, with
one exception, failed to identify in his brief the particular
statements that he regards as problematic.
The sole statement identified by the appellant is drawn
from Marrero-Martell's testimony about what Junior Cápsula
purportedly said to him on August 22, 2009. The admission of
Marrero-Martell's testimony about that statement was not plain
error. As said, the government introduced an abundance of
extrinsic evidence to show the existence of a conspiracy in which
- 12 - Marrero-Martell, Junior Cápsula, and the appellant, among others,
were participants. What is more, both the content and the context
of Junior Cápsula's instructions to Marrero-Martell support a
finding that those instructions were given during the course and
in furtherance of the charged conspiracy. See United States v.
Rodriguez, 525 F.3d 85, 101 (1st Cir. 2008); United States v.
Marino, 277 F.3d 11, 26 (1st Cir. 2002).
There is one last claim of trial error. The appellant
blithely asserts that the accumulation of errors during trial
demands a new trial. See, e.g., Sepulveda, 15 F.3d at 1195-96.
("Individual errors, insufficient in themselves to necessitate a
new trial, may in the aggregate have a more debilitating effect.").
We reject this assertion out of hand: since the appellant has
failed to identify any cognizable trial errors, there is nothing
to be accumulated.
D. Alleged Sentencing Errors.
The appellant challenges his sentence, arguing that it
is longer than that of Núñez (who accompanied him on the August 22
flight from the Dominican Republic to Puerto Rico) and that the
district court did not explain the rationale for this disparity.
With respect to preserved errors, our review of criminal sentences
is normally for abuse of discretion. See Gall v. United States,
552 U.S. 38, 51 (2007). That review "is bifurcated: we first
determine whether the sentence imposed is procedurally reasonable
- 13 - and then determine whether it is substantively reasonable." United
States v. Clogston, 662 F.3d 588, 590 (1st Cir. 2011).
We start here with the procedural dimension of the
appellant's challenge. This dimension involves the district
court's supposed failure to explicate its sentencing rationale.
Because the appellant neglected to advance any such challenge
below, our review is for plain error. See United States v.
Montero-Montero, ___ F.3d ___, ___ (1st Cir. 2016) [No. 15-1405,
slip op. at 3]; United States v. Ruiz-Huertas, 792 F.3d 223, 226
(1st Cir.), cert. denied, 136 S. Ct. 258 (2015). On plain error
review, the absence of an explanation is not dispositive: the
appellant also must show a likelihood that the court, but for the
error, would have imposed a less severe sentence. See United
States v. Medina-Villegas, 700 F.3d 580, 583 (1st Cir. 2012).
We need not tarry. Here, the appellant's 235-month
sentence falls at the low end of his guideline sentencing range.
That fact, in itself, lightens the burden of justification. See
Montero-Montero, ___ F.3d at ___ [No. 15-1405, slip op. at 4].
To be sure, the sentencing court did not make a direct
comparison of the appellant's culpability with Núñez's
culpability. As a procedural matter, however, it had no duty to
make such a comparison. See United States v. Ayala-Vazquez, 751
F.3d 1, 30-32 (1st Cir.), cert. denied, 135 S. Ct. 467 (2014).
- 14 - At any rate, we have cautioned that appellate courts
should not "read too much into a district court's failure to
respond explicitly to particular sentencing arguments." Clogston,
662 F.3d at 592. Though the explanation here is lean, the district
court specifically referenced the appellant's personal history,
the nature of the offense, and the goals of deterrence and
punishment in imposing the sentence. The court also heard
arguments from counsel on both sides regarding these issues. On
this record, then, no plain error occurred. See United States v.
Vargas-García, 794 F.3d 162, 166 (1st Cir. 2015).
Although we sometimes consider disparities between
similarly situated codefendants under the rubric of substantive
reasonableness, see, e.g., United States v. Reverol-Rivera, 778
F.3d 363, 366 (1st Cir. 2015), the appellant's remaining challenge
on this ground fares no better.3 The appellant premises this claim
on the disparity between his 235-month sentence and Núñez's 120-
month sentence. For sentencing purposes, however, the appellant
and Núñez are not fair congeners. After all, Núñez — unlike the
appellant — admitted responsibility and chose to plead guilty
before trial. It is settled that a coconspirator who has elected
to plead guilty is not similarly situated to a coconspirator who
3Though this challenge was not voiced below, our standard of review is uncertain. See Ruiz-Huertas, 792 F.3d at 228 & n.4. But we need not probe this point more deeply; even under abuse of discretion review, this challenge lacks force.
- 15 - has elected to stand trial. See, e.g., United States v. Dávila-
González, 595 F.3d 42, 50 (1st Cir. 2010). There are, moreover,
other salient differences, not the least of which is that the
appellant furnished and flew the aircraft that was used in the
smuggle.
To say more would be pointless. We reject, without
serious question, the appellant's claim that his sentence is
substantively unreasonable.
E. A Loose End.
There is one loose end. On July 18, 2014, the Sentencing
Commission approved retroactive application of Amendment 782,
which lowered the offense level applicable to the offense of
conviction. See USSG App. C Supp., Amend. 788 (Nov. 1, 2014).
Notwithstanding that his case was then pending on appeal, the
appellant moved for a sentence reduction in the district court.
See 18 U.S.C. § 3582(c)(2). The court purported to grant the
motion.
At the time that it acted, the district court lacked
jurisdiction to enter an order reducing the appellant's sentence.
See United States v. Cardoza, 790 F.3d 247, 248 (1st Cir. 2015)
(per curiam); United States v. Maldonado-Rios, 790 F.3d 62, 64
(1st Cir. 2015) (per curiam). The putative sentence reduction is,
therefore, a nullity. Even so, Federal Rule of Appellate Procedure
12.1 allows us to treat the district court's ineffectual sentence
- 16 - reduction order as an indicative notice that, on remand, the
district court is prepared to grant such a reduction. See Cardoza,
790 F.3d at 248; Maldonado-Rios, 790 F.3d at 64-65. We therefore
remand so that the district court, once its jurisdiction has
reattached, may consider reducing the sentence. We caution,
however, that should the court continue to believe that Amendment
782 paves the way for a reduced sentence, it "'shall substitute'
the amended Guidelines range for the initial range 'and shall leave
all other guideline application decisions unaffected.'" Dillon v.
United States, 560 U.S. 817, 831 (2010) (quoting USSG
§1B1.10(b)(1), p.s.).
III. CONCLUSION
We need go no further. We strike the district court's
improvidently entered sentence reduction order and affirm the
judgment as originally entered by the district court. We remand,
however, for the limited purpose of permitting the district court
to consider anew the appellant's motion for a sentence reduction
under 18 U.S.C. § 3582(c)(2) and Amendment 782.
So Ordered.
- 17 -