United States Court of Appeals For the First Circuit

Nos. 09-1285, 09-1287, 09-1299

UNITED STATES OF AMERICA,

Appellee,

v.

RAFAEL FERNÁNDEZ-HERNÁNDEZ, JULIO ROSARIO-OTERO, and ÁNGEL GONZÁLEZ-MÉNDEZ,

Defendants-Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. José A. Fusté, U.S. District Judge]

Before

Torruella, Leval* and Thompson, Circuit Judges.

Anita Hill Adames, for appellant Fernández-Hernández. Raymond L. Sánchez-Maceira, for appellant Rosario-Otero. Rafael Anglada-López, for appellant González-Méndez. Thomas F. Klumper, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

June 30, 2011

* Of the Second Circuit, sitting by designation. LEVAL, Circuit Judge. Defendants Angel González-Méndez

(“González”), Rafael Fernández-Hernández (“Fernández”), and Julio

Rosario-Otero (“Rosario”) (collectively, “Defendants”) appeal from

their convictions after jury trial. Defendants were convicted of

various conspiracy and drug charges arising out of their

involvement with a large drug distribution organization, which

operated under the name “Los Dementes” and was based in the Juana

Matos public housing project in the Cataño area of Puerto Rico.

See

(a)(1), 846, 860. González and Fernández were

also convicted of gun charges, arising out of, inter alia, their

involvement in the April 25, 2004 killing of three unintended

victims on a public highway in a botched attempt to assassinate a

rival gang leader. See

(c), (o). Their sentences

included prison terms of life in the cases of González and

Fernández, and in Rosario’s case, of 151 months. On appeal,

Defendants assert numerous challenges to the conduct of their trial

and imposition of their sentences, some raised by counsel, others

in pro se briefs. In the case of Rosario, we find that while the

evidence was sufficient to support his involvement in crimes of

drug conspiracy and distribution, it did not support the jury’s

findings of elevated quantities of drugs. Otherwise, we find no

error as to any defendant that would support overturning the

judgment. The judgment is therefore affirmed in part, vacated in

-2- part, and the case remanded to the district court for re-sentencing

of Rosario.

BACKGROUND

On October 25, 2007, a grand jury returned a seven-count

indictment charging sixty-three individuals with participation in

a conspiracy dating from 1998 through 2007 to distribute narcotics

at street level in the Cataño and Guaynabo areas of Puerto Rico.

Carlos-Croz Mojica, a/k/a “Hueso,” was identified as the principal

leader of the drug-selling organization, which used the name “Los

Dementes.” The indictment identified the Juana Matos Public

Housing Project (“Juana Matos”) as its base of operations, where

Los Dementes members used apartments to “store, package, and

process” narcotics, including heroin, cocaine, cocaine base

(“crack-cocaine”), and marijuana, for sale at drug points located

inside and outside Juana Matos.

On August 22, 2008, a grand jury returned a superseding

indictment, which in major part repeated the charges asserted in

the earlier indictment. It charged González, Fernández, and

Rosario, among other co-defendants, with: (1) conspiracy to possess

controlled substances with intent to distribute, in violation of

(a)(1), 846, 860 (Count I); (2) aiding and abetting

the possession with intent to distribute of (i) at least one

kilogram of heroin, (ii) at least fifty grams of crack-cocaine,

(iii) at least five kilograms of cocaine, and (iv) a detectable

-3- amount of marijuana, within 1000 feet of a public housing project

or school,1 in violation of

(a)(1), 860 (Counts II

- V); and (3) using or carrying a firearm “during and in relation

to any . . . drug trafficking crime,” in violation of

(c)(1)(A) (Count VI), and conspiring to commit an offense under

§ 924(c), in violation of

(o) (Count VII). The

only offense charged in the superseding indictment that was not

charged in the original indictment was Count VII, conspiracy under

§ 924(o) to use or carry a firearm during and in relation to a drug

trafficking crime. The superseding indictment charged, as an overt

act in furtherance of this conspiracy, that: “[O]n or about April

25, 2004, in Cataño, Dorado, and elsewhere within Puerto Rico,”

defendants, including Gonzales and Fernández, “carried and used

firearms, to include fully automatic pistols and rifles (machine

guns).” (In relation to this overt act, the government’s evidence

at trial showed that González and Fernández, along with other Los

Dementes members, killed three bystanders in a failed attempt to

murder a rival gang leader.)

Most of the defendants named in the indictments pled guilty.

González, Fernández, and Rosario proceeded to trial on October 1,

1

establishes enhanced penalties for “[a]ny person who violates section 841(a)(1) . . . by distributing, possessing with intent to distribute, or manufacturing a controlled substance in or on, or within one thousand feet of, the real property comprising a public or private elementary, vocational, or secondary school or . . . housing facility owned by a public housing authority . . . .”

(a).

-4- 2008. The government’s theory was that González, prior to his

arrest for bank robbery in 2004, owned a drug point outside of

Juana Matos in the Vietnam Ward in Cataño and that he operated this

drug point as part of the Los Dementes organization; that Fernández

was a seller and enforcer for Los Dementes, working principally at

González’s Vietnam Ward drug point and eventually taking over that

operation; and that Rosario was also a member of Los Dementes, who

owned a drug point outside of Juana Matos in either the Amelia or

the Vietnam Ward.

At trial, the government presented the testimony of several

FBI agents and Puerto Rico Police Department (“PRPD”) officers who

were tasked to the Los Dementes investigation. They testified to,

inter alia, surveillance, controlled buys, and the seizure of

drugs, cash, and weapons at the Juana Matos housing complex. The

government’s evidence linking Defendants to the conspiracy was

primarily the testimony of three cooperating witnesses: Alexis

García-Heredia, a Los Dementes member, who testified to selling

drugs at González’s drug point in the Vietnam Ward and

participating with González and Fernández in the April 2004 killing

(he was one of the shooters); William Rosario-Garcia (“William

Rosario”), a co-defendant, who testified for the government to

performing various errands on behalf of Los Dementes members at

Juana Matos; and Joaquin Casiano, an informant placed by the FBI in

Juana Matos for several months in 2005. We discuss the evidence at

-5- trial in greater detail in connection with the Defendants’ various

claims of error.

Following Rule 29 motions, the court dismissed the gun charges

(counts VI and VII) against Rosario for insufficient evidence. It

also dismissed the claim for forfeiture against all the defendants

(count XIII). On October 17, 2008, after approximately ten days of

trial, the jury returned guilty verdicts against all three

defendants. It found González guilty of the conspiracy charge, the

substantive heroin, crack-cocaine, and cocaine charges, and the gun

charges under §§ 924(c) & (o). Fernández was found guilty of the

same, excepting the heroin charge, of which he was acquitted.

Rosario was found guilty of the conspiracy and the substantive

cocaine and crack-cocaine charges.2 On the marijuana charge, all

three defendants were acquitted.

The court held sentencing hearings on February 2, 2009. In

determining González’s and Fernández’s guidelines range, the

district court applied United States Sentencing Guidelines §

2D1.1(d), the “murder cross-reference,” which provides: “If a

victim was killed under circumstances that would constitute murder

under

. . . apply [the level for first or second

degree murder] as appropriate . . . .” The court sentenced

2 On each of the substantive drug counts, the jury convicted Defendants of possessing with intent to distribute specified drug quantities: at least one hundred fifty grams of crack-cocaine, at least five kilograms of cocaine, and as to González, at least one kilogram of heroin.

-6- González and Fernández to life imprisonment. The court sentenced

Rosario to 151 months imprisonment, which was above the statutory

mandatory minimum of ten years in connection with the drug

offenses, see

(b)(1)(A), but at the bottom of his

guidelines range.

DISCUSSION

I. Jury Notes

Defendants argue, for the first time on appeal, that the

district court violated their Sixth Amendment right to counsel as

well as Federal Rule of Criminal Procedure 43 by responding to

notes received from the jury during deliberations without alerting

counsel to the fact of the notes and outside of the presence of

Defendants and their counsel. The government concedes that the

district court erred procedurally, but contends that the Defendants

were not prejudiced by the violations. We agree.

On October 17, 2008, the court charged the jurors, and at 2:15

p.m. sent them to deliberate. The court advised the parties to

“Stay around in the courthouse. In case we need you, we’ll call

from outside.” The court received a note from the jury at 3:15

p.m. In this note, marked as Note #2,3 the jury requested (in

3 Fernández argues through counsel (who was not trial counsel) that the record reveals that the court never “took care of” or responded to “Jury Note One.” Fernández Br. at 9. This is not correct. The record reveals that on October 10, 2008, during the lunch recess, the jury sent a note to the court, marked as Note #1, asking that two questions be put to government witness William Rosario. After receiving the note from the jury, the court read the questions to

-7- Spanish) a copy of the transcript of the testimony of the

cooperating witness García-Heredia. The court immediately

responded in writing, “The transcript is not available, it would

have to be prepared,” and “You should first rely on your collective

memory.” The government concedes that the first part of the

court’s response was inaccurate: a copy of the transcript of

García-Heredia’s testimony had been posted on the court’s

electronic filing system on October 9, 2008, and accordingly, was

available to be read back to the jury. A second note was received

at 3:18 p.m. In this note, marked as Note #3, the jury requested

(this time in English) a transcript of García-Heredia’s grand jury

testimony. The court immediately responded in writing, “This

testimony is not in evidence – no party proposed it.”

At 4:11 p.m., trial reconvened, and the court informed counsel

that the jury had reached a verdict. Prior to reading the verdict,

the court called counsel to a sidebar and explained that it had

received and responded to Notes #2 and #3. The court said that it

had tried unsuccessfully to reach counsel, and showed the notes.

The court advised counsel it had provided a “[b]oiler plate type of

counsel, heard argument, and determined that it would ask the questions in a neutral way. There was no objection. Upon resuming trial, the court questioned the witness. Fernández’s counsel appears to be confusing the first note received during deliberations, which was marked as Note #2 but which was identified in the minutes pertaining to that trial day as “note 1,” with the earlier note, which, as noted above, was received and taken care of during trial.

-8- answer of the type suggested always when these type of things

happen, okay?” González’s counsel responded, “Yes, sir.”

Fernández’s counsel made a comment on the content of the notes.

There was no objection or further inquiry by any counsel into the

substance of the court’s responses to the notes.

We have held that “[a] district court’s failure to attempt to

inform defense counsel about the existence of a jury note, and

further failure to solicit defense counsel’s input regarding any

response to such a note, violates Rule 43 of the Federal Rules of

Criminal Procedure.” United States v. Gonzalez-Melendez,

(1st Cir. 2009); see United States v. Ofray-Campos,

(1st Cir. 2008); see also Rogers v. United States,

(1975) (noting that the court’s prior rulings, and those

interpreting Rule 43, “make clear . . . that the jury’s message

should have been answered in open court and that petitioner’s

counsel should have been given an opportunity to be heard before

the trial judge responded”); cf. Fed. R. Crim. P. 43(a)(2) (the

defendant’s presence is required at “every trial stage, including

jury impanelment and the return of the verdict”).4 There is no

4 In United States v. Maraj,

(1st Cir. 1991), we set forth the proper procedure for handling a note from the jury:

The preferred practice for handling a jury message should include these steps: (1) the jury’s communique should be reduced to writing; (2) the note should be marked as an exhibit for identification; (3) it should be shown, or read fully, to counsel; and (4) counsel should be given an opportunity to suggest an appropriate rejoinder. If the note

-9- question that, in its procedure in responding to Notes #2 and #3,

the district court erred. Counsel should have been advised of the

notes and been offered the opportunity to suggest responses (or

object to the court’s proposed responses).5 However, the

Defendants did not object when the court revealed the jury notes.

Although counsel did not learn of the notes until the jury had

reported that it had reached a verdict, the possibility of curing

the error remained open as the court could have told the jury that

the referenced transcript did exist, caused it to be read to them,

and instructed them to continue to deliberate. Defendants’ failure

to bring the claim of error to the district court’s attention

results in the forfeiture of the claim. See United States v.

requires a response ore tenus, the jury should then be recalled, the note read into the record or summarized by the court, the supplemental instructions given, and counsel afforded an opportunity to object at sidebar. If, however, the note is to be answered in writing, the court’s reply should be marked as an exhibit for identification, the judge should read both the jury’s note and the reply into the record, and counsel should be afforded an opportunity to register objections before the reply is transmitted to the jury.

; see Ofray-Campos,

(“The rules for handling a jury note that are set forth in Maraj are well-settled.”). 5 Although the court told counsel at the time it revealed the notes that it had attempted unsuccessfully to contact counsel, according to the record only one minute passed between the court’s receipt of the notes and its responses to the jury. While the need for a rapid response may vary depending on a number of circumstances, in this case, especially in view of the unclear status of the trial transcript, no good reason appears why the court should not have made more than one minute’s effort to reach counsel.

-10- Rodríguez-Lozada,

(1st Cir. 2009).

Pursuant to Federal Rule of Criminal Procedure 52(b), “[a]n

appellate court may, in its discretion, correct an error not raised

at trial only where the appellant demonstrates that (1) there is an

error; (2) the error is clear or obvious, rather than subject to

reasonable dispute; (3) the error affected the appellant’s

substantial rights, which in the ordinary case means it affected

the outcome of the district court proceedings; and (4) the error

seriously affects the fairness, integrity or public reputation of

judicial proceedings.” United States v. Marcus, ___ U.S. ___ ,

, 2164 (2010) (internal quotation marks and alterations

omitted); see United States v. Duarte,

(1st Cir.

2001). We see no reason to believe this error either affected

Defendants’ substantial rights or affected the fairness or

integrity of the trial.

With respect to Note #3, the court properly responded that

García-Heredia’s grand jury testimony was not in evidence and could

not be provided. Defendants cannot show they were prejudiced, as

nothing more could have or would have been done if counsel had been

made aware of the jury’s inquiry prior to the court’s response.

See Maraj,

(error in handling jury note did not

adversely affect defendant’s substantial rights, because the

judge’s response to the note was satisfactory and “had the full

note been contemporaneously disclosed, there was nothing more that

-11- defense counsel could appropriately have done to protect their

client’s rights”).

With respect to Note #2, Defendants have not shown that the

court’s incorrect response was prejudicial or that it affected the

fairness or integrity of the proceedings. There was no error in

instructing the jury that they should rely on their collective

memory of García-Heredia’s trial testimony. Even if the court had

been aware of the existence of the transcript, it would not

necessarily have been read to the jury. Trial courts have

discretion whether to do so. See United States v. Akitoye,

(1st Cir. 1991) (“[W]e have long and repeatedly held

that rereading testimony during jury deliberations rests in the

presider’s sound discretion.”). Appellants argue that the verdict

might have been different had the testimony been provided. That

is, of course, a possibility, but they make no persuasive argument

supporting such a likelihood. García-Heredia’s testimony was

decidedly unfavorable to the Defendants, and they do not show that

it was impeached in cross-examination in any significant fashion,

other than the obvious point of his aiding his own case by

testifying against the Defendants, which the Defendants forcefully

communicated to the jury in their summations. The procedural error

did not prejudice the Defendants.

II. Voir Dire of Prospective Jurors

Rosario, in a supplemental pro se filing, also argues that the

-12- court violated his constitutional rights as well as Federal Rule of

Criminal Procedure 43 by questioning certain prospective alternate

jurors outside of his presence. We disagree. The court’s

questioning of the prospective jurors outside the presence of the

Defendants was justified, and, in any event, Rosario waived any

right to be present pursuant to Rule 43 by his failure to object at

trial.

After selection of twelve jurors and four alternate jurors,

the court called counsel to a side bar. The judge told them that

he and a security officer observed two of the alternate female

jurors laughing and sticking their tongues out at Rosario “like, ‘I

know you.’” The court determined that it would question the two

alternates, and ordered that the Defendants be removed from the

courtroom. There was no objection. With counsel for each of the

Defendants present, the court questioned the two alternate female

jurors, who said that they did not know any of the Defendants. The

court decided, nevertheless, to excuse the two alternates.

A criminal defendant has a constitutional right to be present

at “all stages of the trial where his absence might frustrate the

fairness of the proceedings.” See, e.g., Faretta v. California,

, 819 n.15 (1975). As noted above, Federal Rule of

Criminal Procedure 43 further provides that a defendant must be

present at “every trial stage, including jury impanelment and the

return of the verdict,” Fed. R. Crim. P. 43(a)(2), except at stages

-13- where, inter alia, “[t]he proceeding involves only a conference or

hearing on a question of law,” Fed. R. Crim. P. 43(b)(3).

Defendants need not be expressly warned of their rights under Rule

43, and a defendant’s failure to assert his right to be present or

to object to a purported violation of the rule may result in a

valid waiver of the right. See United States v. Gagnon,

(1985); United States v. Peterson,

(2d

Cir. 2004); United States v. Brantley,

(11th

Cir. 1995).

In Gagnon, a multi-defendant trial, the Supreme Court rejected

a claim that a conference attended by one of the defense counsel

and a juror, regarding a concern expressed by that juror that one

of the defendants “had been sketching [portraits of] jury members

during the trial,” violated the defendants’ constitutional right to

be present.

. The Supreme Court recognized that

“[t]he mere occurrence of an ex parte conversation between a trial

judge and a juror does not constitute a deprivation of any

constitutional right.”

at 526 (quoting Rushen v. Spain,

(1983) (Stevens, J. concurring in the judgment)).

The Court explained that the conference at issue, “a short

interlude in a complex trial[,] . . . was not the sort of event

which every defendant had a right personally to attend.” Id. at

527. The defendants “could have done nothing had they been at the

conference, nor would they have gained anything by attending.” Id.

-14- As in Gagnon, Rosario’s absence from the bench conference did

not deprive him of any constitutional right. It did not detract

from his defense or in any way affect the fairness of his trial.

See id. at 526 (explaining that due process concerns are implicated

“[w]henever [the defendant’s] presence has a relation, reasonably

substantial, to the [fullness] of his opportunity to defend against

the charge . . . [and] to the extent that a fair and just hearing

would be thwarted by his absence, and to that extent only”).

Rosario was removed (as were his co-defendants) for only a brief

period of time, and his interests were sufficiently protected by

his counsel’s presence at the conference. See United States v.

Bertoli,

(3d Cir. 1994); see also

United States v. Collazo-Aponte,

(1st Cir. 2000)

(finding no Rule 43 violation where the defendant was “restricted

from full participation in a limited number of sidebar conferences

that occurred during voir dire” but otherwise was “present at, and

fully participated in, his trial”), vacated on other grounds,

(2001).

Furthermore, even assuming Rosario had a statutory right to be

present under Rule 43 in these circumstances (a proposition we

doubt), he waived that right by remaining silent. When the court

ordered that the Defendants be removed from the courtroom, Rosario

had the opportunity to object, but did not. As in Gagnon,

Rosario’s “total failure to assert [his] right[] to attend the

-15- conference with the juror sufficed to waive [it] under Rule 43.”

Gagnon,

. “If a defendant is entitled under Rule 43

to attend certain ‘stages of the trial’ which do not take place in

open court, the defendant . . . must assert that right at the time

. . . [and] may not claim it for the first time on appeal from a

sentence entered on a jury’s verdict of ‘guilty.’” Id.; see

Peterson,

; Collazo-Aponte,

.

III. Right to Jury Selected from Fair-Cross Section of the Community

González and Rosario argue, for the first time on appeal, that

they were deprived of their Sixth Amendment right to a trial before

a jury representing a fair cross-section of the community. They

argue that the jury that convicted them was not drawn from a fair

cross section of the community, as it was an English-speaking,

“white-collar,” and “highly professionally oriented” group drawn

from a “universe of less than 16% of” their peers. The local plan

for the District of Puerto Rico requires that jurors be

sufficiently proficient in English to render satisfactory jury

service, see, e.g., United States v. Candelaria-Silva,

(1st Cir. 1999), and yet, according to Defendants, eighty

percent of Puerto Rico residents have little command of English.

(The eighty percent figure is based on certain U.S. census surveys

cited in Defendants’ briefs on appeal.) Because this contention,

at least as it pertained to the composition of the trial jury, was

not raised in the district court, it is subject to review only for

-16- plain error. Even if it were properly preserved for review,

Defendants’ contention is foreclosed by our precedents, which have

repeatedly upheld the English proficiency requirement against such

challenges in Puerto Rico district court. See United States v.

Rodríguez-Lozada,

(1st Cir. 2009) (concluding that

the English proficiency requirement was “justified by the

overwhelming national interest served by the use of English in a

United States court” (quoting United States v. González-Vélez,

(1st Cir. 2006))); United States v. Dubón-Otero,

(1st Cir. 2002). Defendants offer no persuasive reason

for reconsidering our prior rulings.

IV. Spanish Translation of Jury Instructions

González argues for the first time on appeal that his right to

a fair trial was violated because the district court did not

provide the jury with a Spanish translation of the jury

instructions. González’s argument is forfeited for failure to

raise it below, and is in any event foreclosed by our precedents.

In United States v. Gonzalez-Maldonado,

(1st Cir. 1997),

we explained that the practice of charging the jury using non-

English words was “inadvisable and should be discouraged” and

instructed “district courts to frame instructions in English.”

. As noted above, the governing rules require that all

jurors speak, read, and write in English with proficiency. At the

jury selection phase, the Defendants were not rebuffed in any

-17- effort to test any juror’s comprehension of English. González has

failed to show any error (let alone plain error).

V. Sufficiency of the Evidence

Defendants challenge the sufficiency of the evidence

supporting their convictions. We review de novo the district

court’s denial of a motion made under Rule 29 for judgment of

acquittal. United States v. Giambro,

(1st Cir.

2008). In doing so, we view the evidence in the light most

favorable to the jury’s guilty verdict and assess whether a

reasonable factfinder could have concluded that the defendant was

guilty beyond a reasonable doubt. See United States v. Lipscomb,

(1st Cir. 2008). We conclude that the evidence was

sufficient to support the jury’s verdict as to González and

Fernández. However, in the case of Rosario, we conclude that while

the evidence was sufficient to support the jury’s verdict as to his

involvement in crimes of drug conspiracy and distribution, it did

not support the jury’s findings of elevated quantities of drugs.

Accordingly, we vacate the district court’s judgment as to Rosario

to the extent it included the elevated quantities, and remand for

re-sentencing.

1) González and Fernández.

The evidence was clearly sufficient to show that González and

Fernández were involved in the Los Dementes drug distribution

operation, which operated out of the Juana Matos housing project

-18- and sold drugs at a drug point owned by González on F street in the

Vietnam Ward. Much of the evidence was provided by the testimony

of García-Heredia, who testified that he had been a member of Los

Dementes and sold drugs, including heroin, cocaine, crack-cocaine,

and marijuana, for the organization. He identified González as

the owner of the drug point, and Fernández as having sold drugs and

having acted as an enforcer at the drug point.6 According to

García-Heredia, drugs were routinely delivered from Juana Matos to

the Vietnam location by Los Dementes principals, and these drugs

were sold under so-called “brand names,” including Pokemon, that

were exclusive to Los Dementes drug points. (Other evidence

established the large quantities supporting the jury’s verdict.)7

García-Heredia also testified to his involvement, together

with González and Fernández, in the April 25, 2004 murders, which

formed the basis for the convictions under Sections 924(c) and (o).

As part of a war between Los Dementes and a rival drug

organization, Las Palmas, Los Dementes members attempted to kill

Las Palmas’s leader, Gilberto El Reyes. According to García-

Heredia, while González drove the car, he and Fernández opened fire

6 There was also testimony that, by May 2004 (following González’s arrest for bank robbery), Fernández operated the Vietnam Ward drug point and that drugs at Juana Matos were packaged for Fernández to sell in the Vietnam Ward. 7 During a two-month surveillance of the Juana Matos drug points, the evidence established that the drug conspiracy sold “about 71,000 decks of heroin, 62,000 baggies of cocaine, 300,000 vials of ‘crack,’ and 60,000 baggies of marijuana.”

-19- (he with two semi-automatic .38 revolvers and Fernández with an AK-

47) on another car they believed belonged to El-Reyes’s son. Three

passengers in the car were killed. (It turned out that the car did

not belong to El Reyes’s son; none of the victims were involved in

the drug trade.)

González and Fernández argue that the convictions under

must be vacated because the drug sales in the Vietnam

Ward were not within 1000 feet of a public housing project or

school, as they contend is required by that statute.8 This

argument is without merit. Section 860 does not require that the

drug sales take place within 1000 feet of a housing project or

school. The charges under § 860 included possession of drugs

within 1000 feet of a hosing project or school, with intent to

distribute. The evidence showed that González and Fernández, with

intent to distribute, aided and abetted in such possession within

1000 feet of a protected location (in this case, Juana Matos and

two schools located therein).9 See United States v. DeLuna, 10

8

provides in relevant part that: “Any person who violates section 841(a)(1) of this title . . . by distributing, possessing with intent to distribute, or manufacturing a controlled substance in or on, or within one thousand feet of, the real property comprising a public or private elementary, vocational, or secondary school or . . . housing facility owned by a public housing authority . . . is subject to (1) twice the maximum punishment authorized by section 841(b) of this title . . . .” 9 Fernández argues in a supplemental pro se filing that the convictions under Sections 924(c) and (o) must be vacated because there was insufficient evidence of a “nexus” between the April 25, 2004 killings and the drug trafficking charges. We disagree. The

-20- F.3d 1529, 1534-35 (1st Cir. 1993).

2) Rosario.

Rosario was convicted of drug conspiracy, and of possession

with intent to distribute at least one hundred fifty grams of

crack-cocaine and five kilograms of cocaine. See

(a)(1), 846, 860. We conclude first that the evidence was

sufficient to show that Rosario participated in the drug conspiracy

and that he possessed or aided and abetted the possession of drugs

at Juana Matos with intent to distribute.

The evidence of Rosario’s participation came in principally

through two witnesses: Casiano and William Rosario. Casiano was

an FBI informant placed in Juana Matos as an outside observer for

approximately two months, from February through April 2005.

Casiano testified that he saw Rosario attend what Casiano

characterized as a March 2005 peace meeting between Los Dementes

and Las Palmas members at Juana Matos, and that when he saw Rosario

at the housing complex, “[h]e would always be with Hueso.”10

evidence showed that González and Fernández attempted to murder El- Reyes as part of a war between the two drug organizations, and did so with the participation of other Los Dementes members. The attempted murder was sufficiently connected to the drug trafficking crime to satisfy Section 924(c)’s “during and in relation to” requirement. 10 In the district court, Rosario moved for a mistrial on the grounds that the government engaged in misconduct by permitting Casiano to testify allegedly falsely about Rosario’s presence at the peace meeting. The basis for this accusation was that Casiano had previously told the government that he could not identify Rosario on the basis of a photo given to him. The court summarily

-21- Casiano testified that “Hueso was the leader, and not everybody got

to hang out with him.” According to Casiano, only close associates

in the drug business could “hang out” with Hueso.

William Rosario, the cooperating witness, testified to

performing various drug-related tasks and errands for members of

Los Dementes at Juana Matos. He confirmed that the defendant

Rosario “would spend all of his time with, you know, with the big

people in the organization, with Hueso.” “More than twice” he saw

the defendant Rosario in an apartment in “Building 50” – one of the

principal apartments where Los Dementes members would prepare drugs

– at times when drugs were being prepared. He saw the defendant

Rosario there with other members of the organization. According to

William Rosario’s testimony, the apartment was outfitted with

steel-plated doors and video cameras for surveillance. He

testified that there were “a lot of drugs and a lot of money” at

the apartment. He estimated that Los Dementes members processed

approximately 1/4 kilogram of cocaine into crack (the equivalent of

about 1000 vials of crack) in the apartment approximately three or

four times per week, and that he often saw approximately $5000 in

denied the motion, and Rosario appeals from the denial. We see no basis for grant of new trial, nor any showing of misconduct on the current record. Rosario was given an adequate opportunity to develop this (or any other) inconsistency on cross-examination. Casiano testified that, although he did not recognize Rosario from the picture, he realized in the courtroom that the defendant was “Julio Hotdog” (Rosario’s nickname), who he remembered from his time at Juana Matos. The government was entitled to solicit this testimony and the jury was entitled to credit it.

-22- cash being counted there (by machine).

William Rosario also testified about two specific drug-related

interactions he had with the defendant Rosario. In the first, the

defendant Rosario took William to Rosario’s aunt’s house in a

neighboring housing complex, where Rosario had William “cook” and

“taste” (tasks he often performed at Juana Matos) a small sample

from a bag of cocaine (the bag’s weight was approximately 1/8

kilogram). In the second, William washed a car for Rosario, and in

return, Rosario paid him with six or seven vials of crack. In

response to a question from the jury as to whether he knew if “in

the Building 50 they prepare drugs for Julio Rosario,” William

testified: “I could not tell you that I was there when they were

preparing drugs for Julio. But I can say that on one day, when I

washed a car for him, he told me that after I finished, that he was

going to go to apartment 50 and that he was going to pay me with

what they were preparing for him.”

Finally, the government introduced evidence that, following

the October 2007 indictment and arrests, Rosario fled and took on

a new identity. When he was apprehended in 2008 by the U.S.

Marshals Service, he was found in possession of a fake driver’s

license and social security card (both in the name of “Omar

Palma”). When confronted with the fake documents, Rosario admitted

that “he was assuming the identity of Mr. Omar Palma while being a

fugitive.” The government argued – and the jury was entitled to

-23- find – that Rosario’s attempt to evade arrest demonstrated a

consciousness of guilt.11

Taken together, and in the light most favorable to the

verdict, this evidence was sufficient to support the jury’s

findings that Rosario was guilty of participation in the drug

distribution conspiracy and of aiding and abetting the possession

of drugs with intent to distribute.12

11 Rosario argues that the district court erred in admitting evidence of his flight because (1) the evidence was admitted without the necessary showing of extrinsic evidence of guilt, and (2) the evidence was highly prejudicial and should have been excluded pursuant to Fed. R. Evid. 403. We reject these contentions. “A district court is afforded considerable leeway when determining whether evidence of a defendant’s flight is accompanied by a sufficient factual predicate . . . [and] is afforded similar latitude in determining whether the evidence passes the Rule 403 balancing test.” United States v. Benedetti,

(1st Cir. 2005). We believe there was sufficient extrinsic evidence of Rosario’s guilt to support admission of the flight evidence. Nor can we say that the district court acted outside of its discretion in admitting the flight evidence pursuant to Rule 403. We note further that the district court instructed the jury – instructions we presume it followed – that flight alone is not a sufficient basis to convict, but rather should be considered in light of all the evidence presented at trial. We discern no reversible error in connection with the admission of the flight evidence. 12 We note that Rosario testified as part of the defense case, denying his involvement in any drug-related activities at Juana Matos. He denied that Los Dementes was a drug distribution organization. He also implausibly asserted that Hueso was simply a “recreational leader” at the housing complex. The jury was entitled to disbelieve the defendant’s testimony and use its disbelief to supplement the other evidence against him. See United States v. Abou-Saada,

(1st Cir. 1986); see also United States v. Velasquez,

(2d Cir. 2001) (defendant’s “incredible” testimony “transform[ed] the evidence in this case from borderline to sufficient”).

-24- On the other hand, we conclude that the evidence was

insufficient to support a finding, beyond a reasonable doubt, that

Rosario was responsible for the elevated drug quantities of which

he was convicted, i.e., at least one hundred fifty grams of crack-

cocaine and five kilograms of cocaine. The government relied on

testimony that Rosario, like González and Fernández, owned a drug

point outside of Juana Matos, which, if proved, would presumably be

sufficient to show responsibility for large quantities. There was,

however, no competent evidence of his ownership of a drug point.

William Rosario testified that “from what [he] knew, [Rosario] had

a crack point” outside of Juana Matos. When asked on direct

examination how he knew Rosario was a drug point owner, William

Rosario did not give any intelligible explanation. On cross-

examination, William Rosario acknowledged that his basis for

believing Rosario had a drug point was “because somebody told

[him].” William Rosario accordingly had no competent basis for

testifying that Rosario had a drug point. Nor has the government

identified for us any other evidence from which a rational trier of

fact could conclude that Rosario had a drug point.

We recognize that there was evidence of large quantities of

drugs, money, and drug dealing paraphernalia at the apartment in

Building 50, and there was evidence that Rosario was seen “more

than twice” in that apartment, including at least one occasion when

drugs were being prepared. But there was no evidence showing that,

-25- on any occasion when Rosario was at the apartment, he would

inevitably have seen large-scale operations being conducted there.

Nor did the evidence show Rosario’s awareness of the continuity of

sustained drug preparation there. While the government might have

been able to elicit such testimony with properly focused questions,

it did not do so. In order to support a criminal conviction,

evidence must be sufficient to support a finding beyond a

reasonable doubt of the essential elements. Without doubt there

was evidence from which jurors could speculate as to Rosario’s

awareness of the large-scale operation in which he participated,

but the evidence as to him was sketchy and could not support a

finding beyond a reasonable doubt.

Accordingly, while we affirm Rosario’s convictions on the

various drug offenses, we vacate the judgment to the extent that it

incorporated convictions based on the jury’s findings of elevated

quantities. Because Rosario’s overall sentence was predicated in

part on these convictions for elevated quantities, and because the

charges alleging elevated quantities included mandatory minimum

sentences,13 we vacate Rosario’s sentence. At Rosario’s sentencing

hearing, the district court treated the jury’s findings of elevated

13 The jury found the Defendants responsible for drug quantities of at least five kilograms of cocaine and at least one hundred fifty grams of crack-cocaine. These quantities, under

(b)(1)(A), trigger a term of imprisonment of at least ten years and not more than life. See United States v. Cruz-Rodriguez,

, 32 n.11 (1st Cir. 2008).

-26- quantities as determinative. As set forth above, there was

insufficient evidence to support the jury’s findings as to

quantity. On imposing sentence upon remand, the district court

shall make any necessary findings as to drug quantities

attributable to Rosario, in accordance with our decisions in United

States v. Colon-Solis,

(1st Cir. 2004), and United

States v. Correy,

(1st Cir. 2009).14

VI. Sentencing Challenges

We review a “district court’s sentence for reasonableness,

which involves a procedural as well as a substantive inquiry.”

United States v. Politano,

(1st Cir. 2008). The

first task is to determine whether the district court made any

procedural errors “such as failing to calculate (or improperly

calculating) the Guidelines range, treating the Guidelines as

mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors,

selecting a sentence based on clearly erroneous facts or failing to

adequately explain the chosen sentence – including an explanation

for any deviation from the Guidelines range.” Gall v. United

States,

(2007); United States v. Stone,

(1st Cir. 2009). In addition, we review the substantive

reasonableness of the sentence imposed. The standard of review as

14 This opinion expresses no view as to the quantities the sentencing court may properly attribute to Rosario when the standard, unlike the standard for conviction, is preponderance of the evidence.

-27- to substantive reasonableness is abuse of discretion. Politano,

. “[W]hen a defendant fails to preserve an objection

below, the plain error standard supplants the customary standard of

review.” United States v. Dávila-González,

(1st

Cir. 2010).

González contends that the district court’s imposition of a

term of life imprisonment was procedurally unreasonable because it

was done without proper consideration of the sentencing factors

outlined in

(a), was based on an erroneous

assumption that the court was compelled to adhere to the guideline

range, and was substantively unreasonable.15 We reject these

contentions.

The court determined that González’s guidelines range was life

imprisonment, based on an offense level of 43 and a Criminal

History Category of II (the result of a prior guilty plea to bank

robbery and gun charges).16 If the court finds by a preponderance

of the evidence that a murder was committed in furtherance of a

drug conspiracy, the Guidelines provide for a base offense level of

43. See U.S.S.G. § 2D1.1(d)(1) (“If a victim was killed under

15 González was sentenced to 480 months imprisonment on Count I (drug conspiracy); life imprisonment on Counts II, III, and IV (the substantive drug charges); 240 months imprisonment on Count VII (the violation of

(o)), to run concurrently with the other counts; and life imprisonment on Count VI (the violation of

(c)), to run consecutively with the other counts. 16 U.S.S.G. § 2A1.1 states that the base offense level for first degree murder is 43.

-28- circumstances that would constitute murder under

had such killing taken place within the territorial or maritime

jurisdiction of the United States, apply § 2A1.1 (First Degree

Murder) . . . .”); see also United States v. Avilés-Colón,

(1st Cir. 2008). The evidence of the April 25, 2004 murders

made this offense level applicable.17 Nor is there reason to doubt

that the court recognized its obligation to consider the obligatory

sentencing factors of

(a), or the advisory nature

of the Guidelines since Booker. See 2/2/09 Sentencing Hr’g Tr.

(González) at 43-44 (“We have looked at this in the context of the

advisory guidelines. We have looked at it in our own mind in the

context of 3553(a). What is really salient in the analysis is the

– is the issue of total disregard for the life of others,

especially the total loss of three innocent lives that were

murdered on a well-trafficked road in Puerto Rico.”) That the

court did not discuss mitigating factors advocated by González is

of no significance. Sentencing judges are not obligated to set

forth their appraisal of the pertinent factors. Dávila-González,

. We find no procedural unreasonableness in the

court’s imposition of sentence. Nor do we find any reason to doubt

the substantive unreasonableness of the sentence imposed on

17 The court also determined that a four-level leadership enhancement applied pursuant to U.S.S.G. § 3B1.1(a), because the defendant was a leader of criminal activity involving five or more participants. Because 43 is the highest possible offense level under the Guidelines, González’s offense level remained 43.

-29- González, especially in view of his wanton killings.

Fernández, in a pro se supplemental brief, also challenges the

reasonableness of his sentence. Fernández’s principal objection is

to the application of the Guidelines’ murder cross-reference in

determining his guidelines range. As discussed above in connection

with González’s sentence, evidence of Fernández’s participation in

the April 25, 2004 murders made a base offense level of 43

applicable. See U.S.S.G. § 2D1.1(d)(1). We have considered

Fernández’s remaining sentencing arguments, and find them without

merit.18

VII. Notice of Charges

González and Fernández argue that the superseding indictment

failed to provide adequate and timely notice of the charges

relating to the April 25, 2004 murders and thus violated their

Sixth Amendment rights to notice of accusation. González raises

the argument for the first time on appeal.19 Fernández in the

district court did not object to the filing of the new charges, but

moved to exclude evidence of the murders. Regardless of the proper

standard of review, we find no error.

18 Because we vacate Rosario’s sentence in its entirety, we do not address the sentencing arguments advanced by Rosario on appeal. 19 On September 4, 2008, González, through counsel, filed an in limine motion seeking to suppress certain video evidence relating to the April 25, 2004 murders, which the motion described as “raw, gruesome, and inflammatory.” The motion did not argue that González’s Sixth Amendment rights were violated.

-30- The charges added by the superseding indictment returned on

August 22, 2008 did not expand the scope of the evidence as to the

Defendants. The original indictment included a charge under

(c), alleging their use of firearms. The only

pertinent change in the superseding indictment was to add a charge

under

(o) of conspiracy to commit the violation of

§ 924(c), which set forth as an overt act that: “[O]n or about

April 25, 2004, in Cataño, Dorado, and elsewhere within Puerto

Rico,” defendants, including González and Fernández, “carried and

used firearms, to include fully automatic pistols and rifles

(machine guns).” The shooting down of the three occupants of the

car which the Defendants mistakenly believed carried the drug

rival’s son was provable under the earlier indictment without need

for the supplemental charge. The addition of this specification of

an overt act in furtherance of the Section 924(o) conspiracy did

not enlarge the admissible evidence. As the Dorado shootings in

furtherance of a drug dealing war were evidence of both the

narcotics and firearms offenses, they would have been admissible

even if the superseding indictment had not been filed.

Furthermore, the Defendants had been put on notice of this evidence

long before the filing of the superseding indictment by the

government’s designation of evidence. Defendants have not asserted

that the government’s allegedly tardy filings impaired their trial

preparation or their ability to present a defense. Nor have

-31- Defendants argued on appeal that the district court abused its

discretion in not delaying trial to permit further investigation or

preparation. The argument is therefore forfeited. We see no basis

for disturbing the convictions of either González or Fernández on

this ground.

VIII. Hearsay Statements of Cooperating Witnesses

Defendants argue that the district court erred by

provisionally admitting alleged hearsay testimony by certain

cooperating government witnesses, without having later made a final

determination that such testimony satisfied Fed. R. Evid.

801(d)(2)(E)’s requirements for the admission of co-conspirator

testimony.20 The argument is without merit.

On the first day of trial, the government elicited testimony

from García-Heredia about certain statements made to him by

González about their intention to go ahead with the attempted

assassination of the Las Palmas leader. González’s counsel

objected to the testimony on the grounds that it was hearsay, and

argued that for the statement to be admissible the court had to

make a finding that García-Heredia was engaged in a conspiracy with

the Defendants. The court responded that, under our precedent in

United States v. Petrozziello,

(1st Cir. 1977), it

could make a tentative determination that González and García-

20 This argument was raised by at least González and Fernández in Rule 29 motions filed after trial.

-32- Heredia were members of a drug conspiracy, and if the statement was

in furtherance of the conspiracy, it could be admitted. The court

stated that it would make final determinations on these issues

after it heard all the evidence. González’s counsel agreed, and

there was no further inquiry. (This came up again during the

testimony of Casiano, with respect to statements made to him by

alleged members of the conspiracy during his undercover assignment

at Juana Matos. Fernández’s counsel objected on hearsay grounds,

and the district court made the same ruling, i.e., that it could

only make a final ruling at the close of the evidence. At the

close of the government’s case, neither the Defendants nor the

government requested a final ruling from the court on the

admissibility of any of the provisionally admitted co-conspirator

testimony under Fed. R. Evid. 801(d)(2)(E), and the court did not

make one.

Under Petrozziello, the out-of-court declaration of an alleged

coconspirator may be admitted into evidence under Fed. R. Evid.

801(d)(2)(E) if it is more likely than not that the declarant and

the defendant were members of a conspiracy when the hearsay

statement was made, and that the statement was made in furtherance

of the conspiracy. United States v. Castellini,

(1st Cir. 2004) (citing Petrozziello,

). The trial

court is not required to decide what has come to be called in this

Circuit the Petrozziello question prior to admitting the statement,

-33- but may admit it provisionally subject to making a final

determination at the close of all the evidence. United States v.

Ortiz,

(1st Cir. 1992).21 We ordinarily review

such determinations for clear error, but where, as here, the

defendant fails to request a final Petriozziello ruling prior to

verdict, this Court will vacate the defendant’s convictions on this

ground only upon a showing of plain error. Avilés-Colón,

(“Our precedent clearly establishes that to preserve a

hearsay objection to the admission of a co-conspirator’s statement,

the objection must be renewed at the close of all of the

evidence.”); see also United States v. Perez-Ruiz,

(1st Cir. 2003); Ortiz,

.

On appeal, Defendants failed to identify the allegedly hearsay

statements on which they base their claim. Absent identification

of the challenged statements, “[w]e cannot conduct effective

appellate review of . . . evidentiary ruling[s] admitting

coconspirator statements under . . . Rule 801(d)(2)(E).” United

States v. Isabel,

(1st Cir. 1991); see

(finding waiver where appellants failed to identify the challenged

hearsay statements). Without specification of the statements, we

21 If at the close of the evidence the court reverses its provisional ruling, “it may give a cautionary jury instruction or, on motion, declare a mistrial if an instruction would not prevent or cure the prejudice resulting from its provisional admission of the hearsay.” United States v. Isabel,

, 1199 n.10 (1st Cir. 1991) (citing United States v. Ciampaglia,

(1st Cir. 1980)).

-34- cannot determine whether they were hearsay, and if so, whether the

evidence supported application of the exception for co-conspirator

statements in furtherance of the conspiracy.22

IX. Rosario’s remaining arguments

Rosario argues pro se and for the first time on appeal that

his due process rights were violated because a “selected sworn

juror was asleep from the inception of the trial.” Rosario Supp.

Br. at 8. Rosario cites to a portion of the transcript where

Rosario’s counsel alerted the trial court that one of the jurors

was “falling asleep.” At the time, Rosario did not raise any due

process objection, and therefore, such argument is at best

forfeited on appeal, subject to review only for plain error. The

trial court is not required to remove a juror who has slept and is

accorded considerable discretion in handling the matter. See,

e.g., United States v. Freitag,

(7th Cir.

2000); see also United States v. Newman,

(1st

Cir. 1992). A sleeping juror does not violate a defendant’s due

process rights unless the defendant can show he was prejudiced to

22 We note that, as for the statements made by González to García- Heredia concerning plans to kill El-Reyes (to which González objected to below), we would have no trouble concluding that the evidence showed a conspiracy among García-Heredia, González, and Fernández (Rosario was not implicated by this testimony), and that the statements were made in furtherance of the conspiracy. We note further that the statement would also be admissible, at least as to González, as an admission of a party-opponent under Fed. R. Evid. 801(d)(2)(A).

-35- the extent that he did not receive a fair trial. See Freitag,

. Rosario’s pointing out that a single juror at one

point in the trial fell asleep does not by itself establish such

prejudice, and does not support grant of new trial.

Rosario also argues for the first time on appeal that his

trial should have been severed pursuant to Federal Rule of Criminal

Procedure 14. He argues that he was prejudiced by the spillover

effects of evidence with respect to González and Fernández’s role

in the April 25, 2004 murders, in which he had no part. This

argument is forfeited as he failed to raise it below. In any

event, “[c]o-conspirators are customarily tried together absent a

strong showing of prejudice.” United States v. Perkins,

(1st Cir. 1991). On the current record, we have no

reason to think that had a motion to sever been made, the district

court would have been compelled to grant it. See United States v.

Brandon,

(1st Cir. 1994) (“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.”).23

23 After oral argument, González and Fernández submitted various pro se motions, seeking, inter alia, a stay of the proceedings and appointment of new counsel or permission to proceed pro se. The basis for González and Fernández’s motions appear to be that the government breached plea agreements entered into in a prior criminal case, 04-cr-217 (PG), by using evidence from that case in the instant prosecution and that their trial and appellate counsel were ineffective in not pursuing these allegations. The motions are denied. González and Fernández’s allegations should be raised

-36- CONCLUSION

For the reasons stated above, the judgment of the district

court is affirmed as to González and Fernández. The judgment as to

Rosario is vacated to the extent it is based on the jury’s findings

beyond a reasonable doubt of elevated drug quantities. Rosario’s

case is remanded for re-sentencing. Any pending motions are moot.

in the first instance in the district court pursuant to

.

-37-