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

UNITED STATES OF AMERICA,

Appellee,

v.

Omar F. Genao-Sanchez,

Defendant, Appellant.

No. 02-1707

UNITED STATES OF AMERICA,

Appellee,

v.

Luis Roldan-Cortes,

Defendant, Appellant.

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,

(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,

(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,

(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,

(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,

(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,

(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,

(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,

(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,

("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

(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,

(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,

(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,

(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,

(1st Cir.

1994); see also United States v. Searing,

(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,

(1st Cir. 1993). However, "it is

settled that defendants are not entitled to severance merely

because it would improve their chances of acquittal,"

and

"[c]o-conspirators are customarily tried together absent a strong

showing of prejudice," United States v. Perkins,

(1st Cir. 1991); see also Zafiro v. United States,

(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,

("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,

(internal quotation marks omitted); see also United States v.

Di Pasquale,

, 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,

(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,

(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,

(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,

(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,

(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,

(quoting United

States v. Bagley,

(1985)). See also Kyles v.

Whitley,

(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,

(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,

(2000), and Blakely v.

Washington,

(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."

. 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."

(emphasis in original). While

Blakely itself "express[ed] no opinion" on the constitutionality of

the Sentencing Guidelines,

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,

(7th Cir. 2004) (holding Sentencing Guidelines

unconstitutional to the extent that they require judicial

factfinding), cert. granted,

(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."

(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,

. 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,

(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-