Beruflich Dokumente
Kultur Dokumente
Before
Thompson, Lipez, and Kayatta,
Circuit Judges.
Michael Covington Bagge, with whom Rosa Emilia RodrguezVlez, United States Attorney, and Nelson Prez-Sosa and Thomas F.
Klumper, Assistant United States Attorneys, were on brief, for
appellee.
Rafael F. Castro Lang for appellant Carlos H. Rivera-Rodrguez
and Guillermo A. Macari-Grillo for appellant Albert Mercado-Cruz.
August 4, 2014
Rivera-Rodrguez claims
claim
that
the
government's
criminal
history
After a close review of the record, we agree that RiveraRodrguez's conviction must be vacated due to the district court's
improper questioning of witnesses and its intervention during
closing
arguments.
We
affirm
Mercado-Cruz's
conviction
and
sentence.
I.
Rivera-Rodrguez and Mercado-Cruz were among sixty-four codefendants charged with involvement in a conspiracy to distribute
various types of illegal drugs and prescription medications for
recreational
use.1
They
were
the
only
two
co-
to
to
begin,
the
government
sought
introduce
an
information
implore his client one final time to take the plea deal after
informing him that he could face a mandatory life sentence.
Mercado-Cruz elected to stand trial.
That same day, Mercado-Cruz complained that he was brought to
court for trial wearing prison clothes.
Santiago
Public
Housing
Project.
These
witnesses
identification
of
Mercado-Cruz,
provide
any
evidence
defendants,
particularly
Rivera-Rodrguez,
the
government
already
conspiracy.
pled
guilty
to
their
involvement
in
the
drug
government, the court interjected its own inquiries about the plea
agreements that required the cooperating witnesses to testify
truthfully.
questioning,
there
could
be
consequences
for
the
cooperating
witnesses5
testified
to
seeing
Mercado-Cruz
in
Santiago
Public
Housing
Project.
Two
cooperating
Testifying in
No
Mercado-Cruz
refused the deal. The court sentenced him to the mandatory term of
life imprisonment as to Count One and to two terms of 262 months'
imprisonment
as
to
Counts
Three
-6-
and
Four,
to
be
served
concurrently.6
A.
Rivera-Rodrguez's Claims
1.
Legal Framework
See
29 Charles Alan Wright & Victor James Gold, Federal Practice &
Procedure 6235 (1997).
administration,
the
court
must
scrupulously
avoid
any
United
States v. Norris, 873 F.2d 1519, 1527 (D.C. Cir. 1989) (quoting
United
States
v.
Marzano,
(alteration in original)).
149
F.2d
923,
926
(2d
Cir.
1945)
possibility that the jury will perceive the court as biased toward
one party or another.
626 (1894) ("It is obvious that under any system of jury trials the
influence of the trial judge on the jury is necessarily and
properly of great weight, and that his lightest word or intimation
is received with deference, and may prove controlling.").
To
-8-
1045 (1st Cir. 1997) ("An inquiry into the judge's conduct of the
trial necessarily turns on the question of whether the complaining
party can show serious prejudice.").
gave
the
appearance
of
judicial
bias.
The
See, e.g.,
United States v. Jimnez, 419 F.3d 34, 41-42 (1st Cir. 2005)
(reaffirming that where "the objection is preserved, erroneous
admission of improperly seized evidence at trial is reviewed for
harmless error. . . . [and] the burden is on the government to show
that the supposed error did not affect the outcome of trial"). But
in this circumstance, when the claims of trial error involve
interventions by the court that create the appearance of bias, the
defendant retains the burden of demonstrating serious prejudice.
Ofray-Campos, 534 F.3d at 33.
-9-
the
government
contends
that
the
plain
error
The
portions
unfairness
of
involving
Rivera-Rodrguez's
the
contemporaneous objections.
claim
interventions
of
not
fundamental
subject
to
30, 44 (1st Cir. 2008) (quoting United States v. Olano, 507 U.S.
725, 733 (1993)).
with
appearance
multiple
of
bias
judicial
and
the
interventions,
prejudicial
-11-
determining
effect
of
that
the
bias
F.2d at 418.
In
conducting
that
inquiry,
we
"consider[]
'isolated
on
appeal
of
instances
which
were
of
little
166 F.3d 19, 35 (1st Cir. 1999) (quoting United States v. Montas,
41 F.3d 775, 779 (1st Cir. 1994)).
A judge's
Liteky v. United
189 F.3d 547, 554 (7th Cir. 1999). Accordingly, if a trial court's
questioning of a witness exposes bad facts, inconsistencies, or
weaknesses in the case itself, the exposure itself is not the
worrisome prejudice.
Am. Ins. Co., 850 F.2d 1095, 1100 (6th Cir. 1988).
To this end, we
participation
must
be
balanced;
he
cannot
become
an
must
demonstrate
that
(1)
the
court's
intervention
gave
the
-13-
lookout scheme for the Praxedes Santiago drug point, involving the
use of hand-held radios to listen for police and to communicate
when they were in the area.
Cunta testified
living
room.
Cunta
also
testified
that
Rivera-
[special
assistant
-14-
were
you
Your
Honor,
may
we
-15-
-16-
MS. MELENDEZ-RIVERA: Well, Your Honor -THE COURT: I'm sure that by the time we are
over, everyone's going to get to know what
this is.
MR. LINCOLN-SAN-JUAN: I don't want then
objections, he's a lay person, and the
Government can get to ask you very cleanly
just five years -MS. MELENDEZ-RIVERA:
mentioned --
No,
no,
no,
no.
okay.
We
understand
each
-17-
With this exchange having been completed, the court began its
own questioning of the government's witness:
THE COURT: So let me see if I can help you.
You pled before me, correct?
THE WITNESS: Yes.
THE COURT: And I explained to you what were
the potential penalties that you could be
getting if you pled guilty?
THE WITNESS: Yes.
THE COURT: And I explained to you also that
irrespective of whatever your Plea Agreement
said, I retained discretion to sentence you
under the Statute any way that I want to
sentence you, correct?
THE WITNESS: Yes.
THE COURT: And I also explained to you that
if you were to cooperate, you had an
obligation to give complete, truthful, honest
answers to questions, correct?
THE WITNESS: Yes.
THE COURT: And if you didnt, you would then
face additional penalties for perjury or for
making false statements?
THE WITNESS: Yes.
THE COURT: And for obstruction of justice?
THE WITNESS: Yes.
THE COURT: I told you also, remember, that
once your cooperation is over, the Government
may or may not recommend that you be given
some sort of reduction. Do you understand
that?
THE WITNESS: Yes.
-18-
Yes.
Your Honor.
Yes.
THE COURT:
Or it could be anything that I
want to give you, correct?
THE WITNESS:
THE COURT:
That is so.
Okay.
-19-
-20-
government's
second
cooperating
witness,
Marruecos,
testified that he observed Rivera-Rodrguez distributing the handheld radios and saw the radios charging in Rivera-Rodrguez's home.
During the testimony of previous witnesses, DEA informant Jos
Montaez-Santos and Puerto Rico Police Officer Marisol Torres,
regarding the general operations of the drug conspiracy, the
government introduced a hand-held radio found on Marruecos's person
upon his arrest.
The entire
10
This intervention, and the two that follow it, served the
purpose of clarifying testimony already given and were not
problematic. They are not the focus of our analysis here.
-23-
-24-
court's
second
challenged
intervention
during
the
11
Rivera-Rodrguez's Defense
response
to
the
testimony
of
the
two
cooperating
He took his
He
insisted that he never invited any of the drug dealers from the
drug point, including Marruecos and Cunta, into his home because he
did not want any of them there.
At
times he would take the car into the Praxedes Santiago Public
Housing Project to sell items and collect payments.
According to
He
-26-
drug point within the housing project and had seen many of the drug
dealers and users, but she had never observed Rivera-Rodrguez
selling drugs or otherwise be involved in the drug trade.
He
nonetheless went into the housing project daily to collect his son,
who was a drug addict. Lastly, she testified that Rivera-Rodrguez
sold fantasa in the housing project and that he "visited"12 Celita
approximately once a week to bring jewelry and collect payment.
d.
deny
entering
12
Celita's
home
--
its
alleged
discrepancy
was
important
because
of
its
Also,
the
government's
insistence
that
Rivera-
As
we have described, Celita functioned as a drug runner and RiveraRodrguez was accused of helping her in that enterprise, which
would likely have involved retrieving packages of drugs from her
home.
Rodrguez
inside
Celita's
home.
Instead,
she
had
answered
13
He
the
impression
credibility.
that
the
judge
doubted
the
defendant's
conduct
suggested
to
the
jury
that
he
doubted
the
is
practice
for
the
government
to
question
-29-
States
v.
LiCausi,
167
F.3d
36,
47
(1st
Cir.
1999)
"the
government
elicited
on
direct
examination
the
their
plea
agreements").
By
introducing
the
plea
over
the
prosecutor's
role.
Indeed,
the
court
first
The court
14
tell the truth, and the consequences for the witness if he did not.
In the instance of the second cooperating witness -- Marruecos -the court intervened at the end of the government's inquiry about
his plea agreement to make a statement that also emphasized the
importance of telling the truth as a cooperating witness.
Jurors
would
expect
the
government's
attorney
to
pose
understanding
of
the
obligation
of
the
government's
15
to
the
witness,
in
the
form
of
the
government's
See supra.
The
Court's
Intervention
Testimony about the Location of
Rodrguez's House
during
Rivera-
To
get over this hurdle, the court again assumed the prosecutor's role
and asked a leading question ("[I]s the house more or less in front
of the place where you had seen the scanners?") that made the
-32-
16
See, e.g.,
similar
objection
during
closing
arguments
by
immediately
instructing the jury, "Members of the jury, you will take your own
recollection of the evidence and not what either counsel has told
you the evidence is").
With
this intervention, the court once again helped the government with
its case by appearing to agree with the government that there was
an inconsistency between Rivera-Rodrguez's testimony and FloresRamos's testimony on an issue important to the government's theory
of the case -- whether Rivera-Rodrguez had entered Celita's home.
This intervention was also unreasonable fact-finding by the court
on an issue that should have been left to the jury.
See Quercia,
289 U.S. at 470 ("[A trial judge] may not assume the role of a
witness. He may analyze and dissect the evidence, but he may not
either distort it or add to it.").
-34-
d.
jury
witnesses.
the
truth-telling
obligations
of
the
cooperating
17
Serious Prejudice
Having
determined
that
the
court's
interventions
begin
by
considering
the
evidence
against
Rivera-
recordings
conspiracy.
that
implicated
Rivera-Rodrguez
in
the
of
Marruecos,
the
second
cooperating
witness.
See
18
The only other piece of evidence introduced against RiveraRodrguez was the hand-held radio that was admittedly different
from the ones allegedly used by Rivera-Rodrguez.
-36-
trial more efficient, but they also created the impression that the
court favored the government's version of events.
Importantly, there were a number of crucial points of fact on
which the testimony of the cooperating witnesses and that of
Rivera-Rodrguez and Flores-Ramos were at odds.
According to
judge's
continued
one-sided
interventions
here
--
Without
-37-
19
B.
Mercado-Cruz's Claims21
1.
concerning
the
government's
filing
of
its
information
21
To the extent that Mercado-Cruz attempts to adopt RiveraRodrguez's argument that the improper judicial intervention
rendered his trial fundamentally unfair, we decline to entertain
the argument. We have long held that co-defendants cannot simply
adopt each others' arguments wholesale. "[T]o be meaningful, the
arguments adopted must be readily transferrable from the
proponent's case to the adopter's case." United States v. David,
940 F.2d 722, 737 (1st Cir. 1991). The case against Mercado-Cruz
was markedly stronger than the case against Rivera-Rodrguez.
-39-
before
21 U.S.C. 851(a).
-40-
In making this
that
information.
Mercado-Cruz
had
received
notice
of
the
851
Mercado-Cruz
nonetheless urges that what transpired here did not constitute such
an agreement because it differed from Jones in two respects.
First, he argues that he never personally endorsed the agreement to
postpone the filing, whereas in Jones the defendant signed the
agreement. Second, he argues that the agreement did not constitute
an "explicit waiver."
-41-
As discussed
the
filing
and
waive
any
objection
to
its
untimeliness.
In
-42-
22
Accordingly, the
approach,
would
not
have
changed.
See
show that the FSA should have applied to reduce his sentence.
3.
Though we find
-44-
a.
The district
Mercado-Cruz responded by
alleging that he did not know trial was set to begin on that day,
despite the fact that the trial had long been set to begin in
October 2010, and the court had set the specific date in a
published order five days prior.
Although
we
have
indeed
held
that
defendant
has
23
Mercado-Cruz did not argue that he did not own any street
clothes or that he lacked the resources to obtain them. Thus, we
need not decide, as some circuits have, whether a defendant in such
-45-
b.
He
argues that the court erred in not granting a mistrial on the basis
of this testimony, or at least specially instructing the jury to
disregard it.
Defense counsel
At a sidebar
The court
F.3d 283, 287 (1st Cir. 2004) ("We will reverse a denial of a
motion for a mistrial only when the defendant shows clear prejudice
rendering
the
discretion.").
district
court's
denial
manifest
abuse
of
for
prejudice
stemming
from
improper
testimony
or
promptly
circumstances
given,
implying
mistrial
extreme
is
[as
warranted
opposed
to
only
in
simply
rare
clear]
prejudice.").
In declining to give a curative instruction sua sponte, the
court apparently determined that drawing more attention to the
spontaneous comment would do more harm than good.
During the
-47-
ten-foot pole."
high
the
as
to
require
instruction.
court
to
give
special
curative
Cumulative Error
errors
isolation
he
were
alleges
not
(both
preserved
prejudicial,
their
and
unpreserved)
cumulative
effect
in
was.
-48-
Scope of Cross-Examination
As
On
24
testimony, it was not plain error for the court to permit, absent
any objection, the question about Mercado-Cruz's presence at the
drug point.
b.
Jones,
674 F.3d at 95-96 (citing Harmelin v. Michigan, 501 U.S. 957 (1991)
(upholding
sentence
of
life
in
prison
without
-50-
parole
for
Coln-Sols, 354 F.3d 101, 103 (1st Cir. 2004) (holding that "when
a district court determines drug quantity for the purpose of
sentencing
defendant
convicted
of
participating
in
determination.
-51-
d.
25
According
to
4A1.2,
prior
conviction
resulting
in
imprisonment of less than one year and one month that was greater
than ten years from the commencement of the current offense cannot
be counted under 4A1.1(b).26
Second, even
if it was less than one year and one month, there was ample
evidence in the record that the offense of conviction began around
2005, which was the same year that the sentence for his second
parole revocation was imposed.
26
Prosecutorial Misconduct
Mercado-Cruz
contends
that
the
government
engaged
in
We have
See
at
the
time
of
trial
that
the
testimony
was
false.
-54-