United States Court of Appeals For the First Circuit
No. 08-1900
UNITED STATES OF AMERICA,
Appellee,
v.
LUIS ROSADO-PÉREZ,
Defendant, Appellant.
Nos. 08-2164, 08-2166
MARCOS RIVERA-PEREZ,
No. 08-2181
EMANUEL RIVERA MALDONADO,
Defendant, Appellant. No. 08-2183
JUAN CARLOS TORRES-RODRIGUEZ,
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. José A. Fusté, U.S. District Judge]
Before
Lynch, Chief Judge, Selya and Lipez, Circuit Judges.
Juan F. Matos de Juan for appellant Luis Rosado-Pérez.
Enrique Vélez-Rodríguez for appellant Marcos Rivera-Perez.
Anita Hill Adames for appellant Emanuel Rivera Maldonado.
Ramon Garcia-Garcia for appellant Juan Carlos Torres- Rodriguez.
Timothy R. Henwood, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Velez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Luke Cass, Assistant United States Attorney, were on brief for appellee.
May 14, 2010 LYNCH, Chief Judge. The four appealing defendants were
convicted for their roles in a conspiracy to distribute cocaine,
crack cocaine, and marijuana in Barriada San Miguel, known as El
Cerro, in Naranjito, Puerto Rico, from 2005 to 2007. Three were
convicted after a jury trial, Marcos Rivera-Perez, Juan Carlos
Torres-Rodriguez, and Emanuel Rivera Maldonado; and one by a guilty
plea, Luis Rosado-Pérez. Rivera Maldonado was a corrupt municipal
police officer who aided the conspiracy.
Rivera-Perez, Torres-Rodriguez, and Rivera Maldonado each
challenge the sufficiency of the evidence for their convictions.
Rivera-Perez and Torres-Rodriguez also argue that the government
improperly presented an overview witness. We affirm. The evidence
sufficed, and a government agent witness did not give improper
overview testimony. He appropriately testified from personal
knowledge and explained drug activity and coded language to the
jury, based on his experience.
Rosado-Pérez argues, for the first time on appeal, that
he did not understand the terms of his plea and that the district
court did not ascertain that a sufficient factual basis supported
his plea. On plain error review, we affirm, finding no error at
all.
-2- I. FACTUAL BACKGROUND
The structure of the conspiracy and the appellants' roles
in it are described below as a rational jury could have found;
further facts relevant to the claims on appeal follow.
Between 2005 and 2007 Manuel Chevres-Motta, not a party
to these appeals, led an organization that distributed cocaine,
crack cocaine, heroin, and marijuana in the El Cerro ward of
Naranjito. Each of the appellants worked for Chevres-Motta, in
various roles.
Chevres-Motta's drug organization sold only to known or
vouched-for clients, usually from El Cerro. El Cerro's geography,
which sets it apart from the rest of Naranjito, also limited the
scope of this organization's drug trade. El Cerro rests atop a
hill, and only one road, which cuts through El Cerro, connects it
to Naranjito.
El Cerro "runners" supplied street dealers with drugs and
ensured the dealers gave correct money to Chevres-Motta. "Sellers"
then sold those drugs at regular drug points in El Cerro, including
a basketball court and a nearby stairwell. Sellers sold small
packets of drugs out of black fanny packs, a characteristic of the
El Cerro organization. "Escorts," usually local drug users,
brought clients to drug points and vouched for them.
Luis Rosado-Pérez supervised the cocaine trade for
Chevres-Motta. Marcos Rivera-Perez was a seller. Juan Carlos
-3- Torres-Rodriguez "cooked" cocaine hydrochloride into crack cocaine.
And Rivera Maldonado, a Naranjito municipal police officer,
provided information to the group.
The conspiracy first came to the attention of law
enforcement during a separate drug and money laundering
investigation. A confidential informant in that case set up a
meeting to sell drugs; Rolando Motta-Morales, a member of the
conspiracy in this case, came to that drug meeting. For two months
in 2006, federal officials wiretapped Motta-Morales's phone and
learned that Motta-Morales cooked crack cocaine for his cousin,
Chevres-Motta. They also learned that Torres-Rodriguez was Motta-
Morales's neighbor and cooked crack with Motta-Morales, and that
Rivera Maldonado was Motta-Morales's cousin and brother-in-law, as
well as a corrupt officer.
Federal officers investigated the El Cerro drug
organization for almost two years. Investigators conducted
personal and video surveillance, wiretapped phones, completed about
thirteen controlled drug buys through an undercover police officer
buyer, and used a confidential informant from El Cerro.
On September 26, 2007, a federal grand jury handed up a
twenty-eight-count indictment against thirty individuals, including
the four on appeal in this case, for their participation in the
conspiracy. The defendants in this case were charged in count one
with conspiracy to possess with intent to distribute controlled
-4- substances, 21 U.S.C. § 846, and in count twenty-eight with
criminal forfeiture, id. §§ 853, 881.1
On May 2, 2008, a jury convicted Rivera-Perez, the
seller, Torres-Rodriguez, the crack cooker, and Rivera Maldonado,
the corrupt officer, on the conspiracy count, count one. The jury
also imposed criminal forfeiture on Rivera-Perez and Torres-
Rodriguez. On August 11, 2008, the district court sentenced
Rivera-Perez and Torres-Rodriguez to 120 months in prison and
Rivera Maldonado to 48 months in prison. It also sentenced all
three defendants to five years' supervised release and a $100
special assessment.
Earlier, on March 14, 2008, Luis Rosado-Pérez, the
supervisor of the cocaine trade, had pled guilty to the conspiracy
and forfeiture counts, specifically to conspiring to distribute
between 1.5 and 4.5 kilograms of crack cocaine. That quantity,
combined with Rosado-Pérez's criminal history category, gave him a
base offense level of 33 after a three-level downward departure for
acceptance of responsibility. Rosado-Pérez's sentencing guidelines
range was 135 to 168 months. The government, per the plea
agreement, recommended a sentence of 135 months in prison, which
the court accepted and imposed.
1 Marcos Rivera-Perez was also charged in count twenty- seven with dealing in firearms without a license, 18 U.S.C. § 922(a)(1)(A). That charge was not submitted to the jury and was dismissed at sentencing.
-5- II. CLAIMS OF MARCOS RIVERA-PEREZ, JUAN CARLOS TORRES-RODRIGUEZ, AND EMANUEL RIVERA MALDONADO AS TO THEIR CONVICTIONS
Three defendants argue that the evidence of intent and
agreement to participate in the conspiracy was insufficient for a
conviction. Rivera-Perez and Torres-Rodriguez also argue that the
court erred in admitting the testimony of Federal Bureau of
Investigation Special Agent Regino Chavez, alleging Chavez gave
improper "overview" testimony. We reject both claims.
A. Sufficiency of the Evidence
We review the sufficiency of the evidence for a
conviction de novo. United States v. Azubike, 564 F.3d 59, 64 (1st
Cir. 2009). We take the evidence and draw all reasonable
inferences in the light most favorable to the prosecution. Id. If
a reasonable jury could find the defendants guilty beyond a
reasonable doubt of all elements of the charged offense, we must
affirm the conviction. Id.
On count one, the prosecution had to prove, through
direct or circumstantial evidence, beyond a reasonable doubt that
"each defendant knowingly and voluntarily agreed with others" to
distribute drugs. United States v. Rivera Calderón, 578 F.3d 78,
88 (1st Cir. 2009). Evidence of a knowing agreement could include
evidence that the defendants took actions that furthered the
conspiracy's goals. United States v. García-Pastrana, 584 F.3d
351, 377 (1st Cir. 2009).
-6- 1. Marcos Rivera-Perez
Marcos Rivera-Perez admits on appeal, as he conceded
while testifying at trial, that he sold drugs in El Cerro, but he
says the evidence did not show he sold drugs for the Chevres-Motta
conspiracy.
Sufficient evidence connected Rivera-Perez to the
Chevres-Motta conspiracy. Both a lead investigator in the case and
a confidential informant identified him and testified that he sold
drugs in El Cerro. Videos showed him selling drugs from black
fanny packs, as the conspiracy's other sellers did. Rivera-Perez
was shown selling drugs from the stairwell near the basketball
court, a regular drug point for this conspiracy. Videos showed
Rivera-Perez selling to, interacting with, and standing nearby
known conspiracy members and clients.
A jury could easily reject the idea that Chevres-Motta
and his coconspirators would permit a competing drug dealer to sell
in the heart of their small, isolated neighborhood at one of their
usual drug points. A reasonable juror instead could conclude that
Rivera-Perez sold drugs for this conspiracy and therefore agreed
and intended to further its aims.
2. Juan Carlos Torres-Rodriguez
Torres-Rodriguez, the crack cooker, who lived twenty
minutes from El Cerro, also argues that the evidence showed at most
-7- he cooked crack with his neighbor, Motta-Morales, but not for the
rest of the El Cerro conspiracy led by Chevres-Motta.
The evidence was sufficient. In several phone calls,
played at trial, Torres-Rodriguez and Motta-Morales discussed
cooking crack together. The evidence supported the jury's
conclusion that they were collaborating to cook crack for Chevres-
Motta's El Cerro organization for two reasons.
First, the jury heard many phone calls in which Motta-
Morales discussed his work as a cooker with a number of conspiracy
members over a period of months. In particular, Motta-Morales
discussed his work with the conspiracy leader, Chevres-Motta, who
was Motta-Morales's cousin. He reported his progress cooking
crack, discussed how to buy more cocaine to cook, and planned how
to deliver drugs to Chevres-Motta and receive payment.
Second, many calls played before the jury between Torres-
Rodriguez and Motta-Morales supported the inference that they were
working for Chevres-Motta, since they referenced Chevres-Motta
several times by his street name. Motta-Morales reported to
Torres-Rodriguez Chevres-Motta's instructions and comments about
their work cooking crack, and he did so once shortly after he had
ended a call with Chevres-Motta.
3. Emanuel Rivera Maldonado
Rivera Maldonado, the former Naranjito municipal police
officer, urges that the evidence did not show that he intended to
-8- help a drug conspiracy or even that he knew he had spoken with a
conspiracy member; he says he was simply helping family. He did,
from his position as a police officer, provide help to the
conspiracy, and a reasonable jury could conclude that he knew what
he was doing and intended to assist the drug conspiracy. Phone
calls captured on the wiretap between Rivera Maldonado and Rolando
Motta-Morales, who cooked for the El Cerro group, linked Rivera
Maldonado to the larger conspiracy. Rivera Maldonado was Motta-
Morales's cousin and brother-in-law. A jury could have reasonably
concluded that, in those calls, Rivera Maldonado gave Motta-Morales
confidential police information to help Motta-Morales avoid police
detection.
On March 2, 2008, Motta-Morales called Rivera Maldonado.
Motta-Morales reported that a white Ford Mustang had been following
him and provided the car's license plate. Two officers
investigating the conspiracy had been using that car that day for
surveillance.
In response to this report, Rivera Maldonado went through
police channels and learned that the license plate was
unregistered. In Puerto Rico, unregistered license plates
typically denote law enforcement vehicles. Although he knew this
information was confidential and its release could jeopardize a
police investigation, Rivera Maldonado called Motta-Morales and
reported that the license plate was unregistered. Rivera Maldonado
-9- warned Motta-Morales to be careful and acknowledged that the plate
could belong to a police vehicle.
The officers in the vehicle, realizing from the wiretap
their cover was blown, then tested for the source of the leak.
They drove the white Mustang to the police station on March 3.
Rivera Maldonado came out and inspected the car in the parking lot.
The officers approached Rivera Maldonado, told him they were using
the car to locate a fugitive in Palmarito, and asked Rivera
Maldonado for help. Rivera Maldonado told them his cousin, who
lived in that area, had reported that car was watching him. He
called Motta-Morales, while standing with the investigators, and
told Motta-Morales that the car belonged to police.
About three hours later, Rivera Maldonado again called
Motta-Morales and encouraged him to help find the fugitive, stating
that police would leave the area once the fugitive was captured.
Motta-Morales agreed that he would prefer less police presence near
his home, observing that the police were placing too much "heat" on
his "place." On March 9, 2008, Rivera Maldonado called Motta-
Morales again to report having seen strange cars on property Motta-
Morales's family owned.
The jury could reasonably reject Rivera Maldonado's story
that he gave his cousin the license plate information because
another drug dealer, "El Gordo," had threatened Motta-Morales's
life. Rivera Maldonado testified that he believed the car could
-10- belong to El Gordo and did not know his cousin was involved in the
El Cerro drug conspiracy. Rivera Maldonado admitted, however, that
he was aware that Motta-Morales knew Chevres-Motta and that
Chevres-Motta ran a drug ring in El Cerro. And although he claimed
he believed Motta-Morales's life was in danger, he never made a
report of Motta-Morales's phone call or took steps to protect him
from a death threat.
A jury also could have inferred that Rivera Maldonado
intended to further the conspiracy's aims by helping Motta-Morales
avoid police detection. Rivera Maldonado knew that he gave Motta-
Morales confidential information that could risk other officers'
investigation and even lives. Rivera Maldonaldo also counseled his
cousin to be careful and to help locate the fugitive, which would
remove police scrutiny from Motta-Morales's area.
B. "Overview" Testimony by Agent Chavez
Evidentiary objections, including to overview testimony,
are reviewed for abuse of discretion when they were preserved and
for plain error when they were not.2 See United States v. Hall,
434 F.3d 42, 56-57 (1st Cir. 2006); United States v. Casas, 356
F.3d 104, 113 (1st Cir. 2004). Even if there was an error,
however, we affirm if it was harmless. See Hall, 434 F.3d at 57.
2 The defendants did not always clearly object to the foundation for Agent Chavez's testimony. Although they may not have preserved every concern they raise on appeal, we treat their objections under the abuse-of-discretion standard.
-11- Rivera-Perez, the seller, and Torres-Rodriguez, the crack
cooker, object to the lay witness testimony of Special Agent Regino
Chavez, who was a lead investigator on this case. While Agent
Chavez was testifying, the government played for the jury video
tapes of conspiracy members participating in drug activity and
wiretap recordings of phone conversations between conspirators.3
On appeal, the defendants argue that eighteen portions of this
testimony were improper "overview" testimony.
We break those portions into two categories. First, the
defendants object to Chavez's testimony that placed the videos and
recordings in the context of this conspiracy. He identified
members of the conspiracy and their roles and related what they
were doing and saying to the broader conspiracy. Second, they
contest Chavez's testimony translating for the jury how actions
taken on the video and statements made in the recordings related to
drug activity. Chavez identified drug activity and interpreted
coded language.
We have previously cautioned that prosecutors should not
permit investigators to give overview testimony, in which a
government witness testifies about the results of a criminal
investigation, usually including aspects of the investigation the
3 The government played digital copies of video recordings made on tape, after Agent Chavez testified that he had seen the original recordings and the digital copies were identical. Torres- Rodriguez's argument that the digital copies violated the best evidence rule is meritless. See Fed. R. Evid. 1003.
-12- witness did not participate in, before the government has presented
supporting evidence. Overview testimony at times involves a
witness's assertion of facts not based on his own knowledge when
those facts are not otherwise proven. E.g., United States v.
Rodriguez, 525 F.3d 85, 95-96 (1st Cir. 2008); Casas, 356 F.3d at
118-20.
The prohibition on overly broad overview testimony arises
from the basic principle in the Federal Rules of Evidence that
witnesses, other than experts giving expert opinions, should
testify from personal knowledge. See Fed. R. Evid. 602, 701, 802;
see also, e.g., Casas, 356 F.3d at 118-20 (criticizing overview
testimony because it was not based on the witness's personal
knowledge); United States v. Mazza, 792 F.2d 1210, 1214-16 (1st
Cir. 1986) (holding that an officer's testimony was inadmissible
hearsay when he gave an overview of an investigation based in part
on what other officers told him). A foundation should be laid
establishing the basis of a witness's knowledge, opinion, or
expertise. See Fed. R. Evid. 602, 701, 702; see also, e.g., United
States v. García-Morales, 382 F.3d 12, 17 (1st Cir. 2004)
(criticizing overview testimony "that [the defendant] was a member
of the drug conspiracy, even though the prosecution had not yet
introduced evidence supporting this conclusion"); 6 J.B Weinstein
& M.A. Berger, Weinstein's Federal Evidence § 1006.04[3], at 1006-
14 (J.M. McLaughlin ed., 2d ed. 2006) ("It is improper . . . for a
-13- party to open its case with an overview witness who summarizes
evidence that has not yet been presented to the jury.").
The district court did not abuse its discretion in
admitting Chavez's testimony about how the videos and wiretap
recordings fit into the rest of the conspiracy as based on Chavez's
personal knowledge. The prosecution laid a foundation that Chavez
had personal knowledge of the conspiracy and its membership. He
was a lead investigator; went to El Cerro at least fifty times; and
repeatedly participated in video and personal surveillance, wiretap
surveillance, and controlled drug buys. He testified that his
knowledge was based on his personal observations.
If a proper foundation is laid, government witnesses may
testify about matters within their personal knowledge and give lay
or, if qualified, exert opinion testimony. Relevant here, we have
long held that government witnesses with experience in drug
investigations may explain the drug trade and translate coded
language for juries, either through lay or, if qualified, expert
testimony. See United States v. Santiago, 560 F.3d 62, 66 & n.1
(1st Cir. 2009). This testimony is not overview testimony and is
properly admitted. See Casas, 356 F.3d at 119.
Chavez's testimony translating the videos and wiretap
recordings helped the jury understand evidence it was hearing and
seeing. E.g., Santiago, 560 F.3d at 66. The jury could
independently evaluate Chavez's interpretations, and the defendants
-14- exhaustively cross-examined Chavez about possible alternative
interpretations.
III. CLAIMS OF LUIS ROSADO-PÉREZ AS TO HIS PLEA
Rosado-Pérez argues on appeal that his plea was invalid
because the district court did not ensure that he knowingly and
voluntarily entered into several terms of his plea or ascertain
that a factual basis existed for his plea. Fed. R. Civ. P.
11(b)(2), (3).
Rosado-Pérez concedes that he did not raise these
objections in the district court, and so our review is for plain
error. United States v. Torres-Oliveras, 583 F.3d 37, 40-41 (1st
Cir. 2009); United States v. Serrano-Beauvaix, 400 F.3d 50, 53 (1st
Cir. 2005). Rosado-Pérez must demonstrate that the district court
committed clear error affecting his substantial rights that
undermined the "fairness, integrity, or public reputation of
judicial proceedings." Torres-Oliveras, 583 F.3d at 41. To show
his substantial rights were affected, Rosado-Pérez must "show a
reasonable probability that, but for the [Rule 11] error, he would
not have entered the plea." United States v. Borrero-Acevedo, 533
F.3d 11, 16 (1st Cir. 2008) (quoting United States v. Dominguez
Benitez, 542 U.S. 74, 76 (2004)) (alteration in original) (internal
quotation marks omitted).
-15- A. Voluntariness of Rosado-Pérez's Plea
Rosado-Pérez argues that he did not understand the type
and amount of drugs he was pleading to having conspired to
distribute or that he was waiving his right to have the court
consider further sentence reductions under 18 U.S.C. § 3553(a).4
Even if Rosado-Pérez could demonstrate that he would not
have otherwise pled guilty, which he has not, he cannot show the
court committed any error, much less plain error, by accepting his
plea.5 The prosecutor reported, in Rosado-Pérez's presence, each
of the three terms Rosado-Pérez claims he misunderstood. The
district court then explained them again to Rosado-Pérez and asked
whether the defendant understood. Rosado-Pérez confirmed that he
did.
It is true there was some discussion at sentencing about
the type and quantity of drugs Rosado-Pérez had pled to conspiring
to distribute. But after reviewing the plea colloquy transcript,
4 Rosado-Pérez also argues that he did not understand the prosecutor's statement that several terms of his plea agreement mirrored the terms for other defendants in the case. The prosecutor said that, like the other defendants, Rosado-Pérez was waiving his right to appeal and to other downward departures or sentence reductions under 18 U.S.C. § 3553(a). There was no plain error or even confusion about these terms. The prosecutor proceeded to discuss these terms in greater depth, and the district court ensured that Rosado-Pérez understood them. 5 The prosecution does not press the waiver-of-appeal provision of his plea before this court. We therefore need not address Rosado-Pérez's claim that he did not understand his waiver of appeal.
-16- the court, the prosecutor, and even defense counsel agreed that
Rosado-Pérez unambiguously pled to conspiring to distribute 1.5 to
4.5 kilograms of crack cocaine. Not only did Rosado-Pérez agree,
during the plea colloquy, that he was pleading to having conspired
to distribute crack, but he later asked what effect recent
amendments to crack sentencing would have on his sentence.
Moreover, this drug type and amount corresponded accurately to the
base offense level to which Rosado-Pérez pled.
B. The Factual Basis for Rosado-Pérez's Plea
Before accepting a guilty plea, a district court must
find that a factual basis exists for the defendant's plea. Fed. R.
Crim. P. 11(b)(3). We look at the offense the defendant has pled
to committing and ask whether "the plea has a rational basis in
facts that the defendant concede[d] or that the government
proffer[ed] as supported by credible evidence." Serrano-Beauvaix,
400 F.3d at 53 (quoting United States v. Gandia-Maysonet, 227 F.3d
1, 6 (1st Cir. 2000)) (internal quotation marks omitted).
The district court explained every element of count one,
conspiracy to possess with the intent to distribute narcotics. The
court explained both the elements of a conspiracy and the elements
of possession of narcotics with intent to distribute. Rosado-Pérez
confirmed that he was admitting he committed that offense by
acknowledging that he had acted as the district court recited and
as the prosecutor had suggested in his version of the offense.
-17- Then Rosado-Pérez admitted the type and amount of narcotics
underlying that offense.
Rosado-Pérez argues that the court committed plain error,
first, by not ascertaining the time frame of the conspiracy. The
district court ascertained the facts essential to the offense
Rosado-Pérez was admitting he committed; it did not need to go into
such great factual detail. Cf. United States v. Jiminez, 498 F.3d
82, 87 (1st Cir. 2007) (noting that the facts established at a plea
colloquy need only "touch all the bases" and need not develop the
defendant's guilt in depth).
Rosado-Pérez also argues that the kind of drug he was
pleading to was not adequately established because the prosecutor
offered to stipulate that Rosado-Pérez had conspired to distribute
powder rather than crack cocaine.6 In the end, Rosado-Pérez
explicitly admitted to distributing crack and pled to conspiring to
distribute crack, and that plea was the basis of his sentence.
That admission provided a sufficient factual basis for the court to
accept his plea, and there was no error.
6 At his plea colloquy, Rosado-Pérez's attorney stressed that, although his client was pleading to having conspired to distribute crack, the government had agreed to a sentence at the low end of Rosado-Pérez's guidelines range. The prosecutor responded that, if the defendant was worried, the government would stipulate that Rosado-Pérez had distributed an amount of powder rather than crack cocaine that would have produced an identical guidelines range. The defense apparently did not accept this offer.
-18- IV.
We affirm the judgments of conviction.
-19-