United States Court of Appeals For the First Circuit

No. 20-1156

UNITED STATES OF AMERICA,

Appellee,

v.

MINERVA RUIZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti B. Saris, U.S. District Judge]

Before

Lynch and Kayatta, Circuit Judges, and Woodcock, District Judge.

Emmett E. Robinson and Robinson Law Firm, LLC, on brief for appellant. Lauren A. Graber, Assistant United States Attorney, and Andrew E. Lelling, United States Attorney, on brief for appellee.

June 4, 2021

 Of the District of Maine, sitting by designation. WOODCOCK, District Judge. On July 24, 2019, a jury

convicted Minerva Ruiz of one count of conspiracy to distribute

and to possess with intent to distribute heroin in violation of

and one count of distribution of heroin in violation

of

(a)(1). On January 21, 2020, the district court

imposed a downward variant sentence of forty-eight months of

imprisonment followed by a two-year term of supervised release.

Ruiz appeals her convictions and sentence on three

grounds. First, she contends the district court abused its

discretion by finding certain coconspirator statements were non-

hearsay under Federal Rule of Evidence 801(d)(2)(E) and admitting

the statements into evidence. Second, she submits the district

court failed to properly instruct the jury about the elements of

her offenses. Third, she argues the district court clearly erred

by applying a three-level mitigating role reduction under United

States Sentencing Guidelines § 3B1.2 rather than a four-level

minimal role reduction. We affirm the convictions and sentence.

I. Background

Because Ruiz does not contest the sufficiency of the

evidence presented against her, we recount the facts in a "balanced

way, without favoring either side." United States v. Arias,

, 509 n.1 (quoting United States v. Rodríguez-Soler,

(1st Cir. 2014)).

- 2 - A. The Crime

In June of 2017, the United States Drug Enforcement

Administration (DEA) and Homeland Security Investigations (HSI)

began investigating a man named Dalnovis Delarosa Arias. The

investigation started after a Puerto Rican HSI confidential source

(CS) told agents that an unidentified male using a specific

cellphone number was selling heroin in Massachusetts. Under the

oversight of federal agents, the CS set up a phone call on June

28, 2017, between Delarosa and a cooperating witness named Bernie

Bravo. During the call, Delarosa told Bravo he could sell Bravo

multiple kilograms of heroin, and Delarosa agreed to meet Bravo in

Charlestown, Massachusetts, to discuss the terms of the heroin

deal. Delarosa told Bravo that he did not drive but would find a

ride to the meeting. At the instruction of federal agents, Bravo

recorded this call and all subsequent communications with

Delarosa.

On July 13, 2017, Bravo and Delarosa met in Charlestown

to discuss a heroin deal. At the time, Delarosa was dating Minerva

Ruiz. Around 2:00 p.m., before the Charlestown meeting, law

enforcement saw Delarosa and Ruiz outside an apartment on Milton

Street in Lawrence, Massachusetts, where Ruiz lived with her

parents. Law enforcement observed Delarosa and Ruiz standing near

the rear of a white Honda Civic that was registered to Ruiz at the

Milton Street address. After some time, Delarosa and Ruiz departed

- 3 - in the Honda Civic with Ruiz driving. Federal agents followed the

couple to the Bunker Hill Mall in Charlestown, Massachusetts.

When they arrived at the Bunker Hill Mall around

4:20 p.m., Bravo was waiting for Ruiz and Delarosa. Bravo climbed

into Ruiz's car and secretly recorded the ensuing conversation.

Once again, Delarosa offered to sell Bravo some heroin and Bravo

said he was interested. Bravo told Delarosa to call him after

securing the heroin.

Ruiz stayed in the car for the entire fifteen-minute

meeting. At one point, Bravo said he was uncomfortable talking

about selling drugs in front of a woman. Delarosa told Bravo not

to worry because Ruiz was his "right hand in everything." Later,

Bravo again said he was embarrassed to discuss dealing drugs in a

woman's presence. This time, Ruiz encouraged Bravo to speak freely

because her relationship with Delarosa was similar to Bravo's

relationship with his own boss.

After the July 13, 2017, Charlestown meeting, Bravo and

Delarosa spoke by phone several times. During these calls,

Delarosa informed Bravo he was still trying to get his hands on

some heroin. Around August 22, 2017, Delarosa called Bravo and

said he had just returned from New York with heroin. He offered

to sell Bravo two kilograms of heroin for $60,000 per kilogram.

The following day, the two men spoke again by phone and agreed to

meet on August 24, 2017, and consummate the transaction.

- 4 - On August 24, 2017, Ruiz drove Delarosa in her Honda

Civic to the Bunker Hill Mall in Charlestown. When they arrived

around 2:30 p.m., Bravo and his recording device were waiting.

Bravo got into the Honda Civic and asked where the heroin was.

Delarosa said, "Everything is there." Bravo peered into a bag

behind Ruiz's seat and saw two cereal boxes, Froot Loops and Apple

Jacks; each contained a brick-shaped object wrapped in black tape.

Next, Bravo told Delarosa and Ruiz that he would retrieve

their payment from his car. He exited the Honda Civic, walked to

his car, and popped the trunk. This signaled to law enforcement

that there was heroin inside Ruiz's car. Law enforcement arrested

Ruiz and Delarosa around 2:40 p.m. on August 24, 2017. Federal

agents recovered the two brick-shaped objects from Ruiz's vehicle.

A subsequent laboratory analysis confirmed the objects contained

heroin, with a net weight of about 1.8 kilograms.

B. The Trial

On September 20, 2017, a federal grand jury handed down

a two-count indictment against Delarosa and Ruiz for conspiracy

and distribution. Delarosa pleaded guilty; Ruiz went to trial in

July 2019.

Before trial, Ruiz moved to exclude the recordings and

transcripts of conversations between Delarosa and Bravo as

inadmissible hearsay. The government opposed the motion and argued

the statements were non-hearsay coconspirator statements under

- 5 - Federal Rule of Evidence 801(d)(2)(E). On the first day of trial,

the district court denied the motion to exclude, reasoning the

conversations in the Honda Civic were clearly admissible as

opposing party statements or statements of coconspirators.

On the second day of Ruiz's trial, the government

introduced recordings of the July 13, 2017, and August 24, 2017,

face-to-face meetings in her car, when Ruiz was present, and the

June 28, 2017, and August 22, 2017, phone calls between Delarosa

and Bravo, in which Ruiz did not participate. The government moved

to introduce English transcripts because the recordings were in

Spanish. Ruiz maintained a standing hearsay objection to this

evidence.

At the close of the government's case, the district court

overruled Ruiz's objection and found by a preponderance of the

evidence that Ruiz and Delarosa were coconspirators. To make this

finding, the district court relied on the transcripts of the two

meetings and the fact that Ruiz drove Delarosa to two meetings in

which Delarosa and Bravo openly discussed the sale of heroin.

However, the district court did not rely on Bravo's trial

testimony. According to his testimony about the transaction on

August 24, 2017, Bravo got into Ruiz's Honda Civic and twice asked

where the heroin was; the first question prompted Delarosa to say

that the heroin was in a cereal box and the second prompted Ruiz

to point to the cereal boxes behind the driver's seat. Referring

- 6 - to these aspects of Bravo's account, the district judge

acknowledged Bravo's "credibility . . . [had] been called into

doubt . . . because he[] doubled down on something which clearly

[was]n't in the transcript" of the conversations in the Honda

Civic. Ruiz again objected to the recordings and transcripts.

C. The Jury Instructions and Verdict

Before trial, Ruiz submitted proposed jury instructions;

one read:

6. The government must prove, beyond a reasonable doubt, that in addition to being present or knowing about a crime, the defendant knowingly, deliberately, and voluntarily associated herself with the crime in some way as a participant-someone who wanted the crime to be committed, not a mere spectator. United States v. Verdugo,

(1st Cir. 2010).

Before trial, the government objected to this instruction. It

contended the instruction went "well beyond the pattern

instructions" concerning the meaning of "mere presence." The

government instead urged the district court to adopt the same

instruction this Court approved in United States v. Verdugo,

, 579 n.3 (1st Cir. 2010).

On the final day of the Ruiz trial, the district court

circulated draft jury instructions. The draft instructions

included language substantially the same as Ruiz's proposed "mere

presence" instruction. The government objected to the words

"intentionally associated herself." Specifically, the government

- 7 - claimed the draft instruction was duplicative because "[m]ere

presence applies to all of the instructions," but conspiracy,

distribution, and aiding and abetting require different mens rea

for conviction. The district court overruled the government's

objection after concluding the language "may be duplicative" but

was not problematic because whether Ruiz intended to commit the

charged offenses was the key issue in her case.

Later that day, the district court charged the jury.

The district court told the jury it could not convict Ruiz of

distribution of heroin unless it found beyond a reasonable doubt

that she (1) "transferred heroin to another person," on the alleged

date, (2) "knew that the substance was heroin," and (3) "acted

intentionally . . . [t]hat is, that it was her conscious object to

transfer the heroin to another person."

The district court further explained to the jury that it

"may also find Ms. Ruiz guilty of either possession with intent to

distribute or distribution under a theory of aiding and abetting"

if (1) the government proved beyond a reasonable doubt that another

person committed the charged offense, and (2) "Ms. Ruiz consciously

shared the other person's knowledge of the underlying criminal

act, intended to help him, and willfully took part in the endeavor

seeking to make it succeed."

The district court then instructed the jury that "[m]ere

presence at the scene of a crime and knowledge that a crime is

- 8 - being committed are . . . not sufficient to establish aiding and

abetting." It noted "the law recognizes the difference between

mere presence and culpable presence in the context of drug-

trafficking activities" and stated that "a defendant's presence at

the point of a drug sale, taken in light of attendant

circumstances, can constitute strong evidence of complicity."

Thus, the district court instructed the jury to "evaluate the

circumstances of this case in order to determine the quality of

the defendant's presence at a location where drugs are found. This

will assist you in determining whether [she] was merely present or

was culpably present."

This language was nearly identical to the government's

proposed Verdugo instruction. However, the district court added

a final sentence on "mere presence," making the instruction

substantially similar to instruction number six in Ruiz's proposed

jury instructions. The district court stated:

In order to find Ms. Ruiz guilty, the government must prove beyond a reasonable doubt that in addition to being present or knowing about the crime, that she intentionally associated herself with the crime charged in some way as a participant, someone who wanted the crime to be committed, not as a mere spectator.

Once again, Ruiz did not object to this instruction, but the

government did. The government reiterated that this sentence

should be struck because it was inconsistent with this Court's

- 9 - statement of law in Verdugo,

n.3. The district

court again overruled the government's objection. Several hours

later, the jury convicted Ruiz on both counts of the indictment.

D. The Sentencing

On January 17, 2020, Ruiz appeared before the district

court for sentencing. Before the sentencing hearing, the United

States Office of Probation and Pretrial Services (PO) prepared a

Presentence Investigation Report (PSR), which calculated Ruiz's

offense level to be twenty-six with a criminal history category of

I. The PO's calculations included a two-level reduction in Ruiz's

offense level under U.S.S.G. § 3B1.2(b) for being a minor

participant in the crime. With this offense level and criminal

history category, the guideline sentence range (GSR) was sixty-

three to seventy-eight months of imprisonment, two to five years

of supervised release, a fine range of $25,000 to $20 million, and

a $200 special assessment. Ruiz objected to the calculated total

offense level of twenty-six and argued that instead of a two-level

minor participant reduction, she deserved a four-level reduction

as a minimal participant under U.S.S.G. § 3B1.2(a).

At the sentencing hearing, the district court concluded

a three-level mitigating role reduction was appropriate because it

did not view Ruiz's role in the offense as minimal. It noted Ruiz

went on two trips to discuss and facilitate a heroin deal and told

Bravo to think of her relationship with Delarosa as similar to

- 10 - Bravo's relationship with his own boss. However, the district

court also acknowledged facts suggesting Ruiz was less culpable

than Delarosa. For instance, there was no evidence Ruiz received

any money from selling heroin or that she had previously

participated in drug trafficking with Delarosa.

After the three-level mitigating role reduction, Ruiz's

base offense level was twenty-five. A criminal history category

of I and an offense level of twenty-five produced a GSR of fifty-

seven to seventy-one months of incarceration, two to five years of

supervised release, a fine of $20,000 to $20 million, and a special

assessment of $200. The district court varied downward because

Ruiz has a daughter with special needs and sentenced Ruiz to forty-

eight months of imprisonment, no fine, two years of supervised

release, and a $200 special assessment.

II. Discussion

Ruiz raises three issues on appeal; we affirm the

district court because each claim of error is without merit.

A. The Coconspirator Statements Under Rule 801(d)(2)(E)

Ruiz first contends the district court abused its

discretion by admitting transcripts and recordings of

conversations between Delarosa and Bravo. She urges that under

United States v. Petrozziello,

(1st Cir. 1977),

and its progeny, there was insufficient extrinsic evidence for the

- 11 - district court to find by a preponderance that she was in a

conspiracy with Delarosa.

Ruiz preserved her challenge to the admission of the

transcripts and recordings by objecting before and during trial

when the district court admitted them into evidence. We review

preserved challenges to the admission of coconspirator statements

under Federal Rule of Evidence 801(d)(2)(E) for either clear error

or abuse of discretion. United States v. Lara,

, 77-

78 (1st Cir. 2020). When a defendant's challenge would fail under

either standard, we need not decide which standard applies.

.

In federal court, hearsay statements are inadmissible

for their truth unless a federal statute, the Federal Rules of

Evidence, or other rules prescribed by the Supreme Court authorize

their admission. Fed. R. Evid. 802. Under Federal Rule of

Evidence 801(d)(2)(E), a statement offered against an opposing

party that "was made by the party's coconspirator during and in

furtherance of the conspiracy" is not hearsay. Fed. R.

Evid. 801(d)(2)(E). Our decision in Petrozziello explains that

such a statement is admissible when the trial judge finds "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 in furtherance of the conspiracy."

.

- 12 - To satisfy Petrozziello and Rule 801(d)(2)(E), the

proponent of a statement must introduce some "extrinsic evidence"

of a conspiracy between the defendant and the declarant. United

States v. Piper,

(1st Cir. 2002). In this context,

extrinsic evidence means "other evidence sufficient to delineate

the conspiracy and corroborate the declarant's and the defendant's

roles in it."

The trial judge considers the alleged hearsay

statements alongside the proffered extrinsic evidence and

determines whether the proponent of the statements has established

by a preponderance that the coconspirator statements are not

hearsay under Rule 801(d)(2)(E). See United States v. Sepulveda,

(1st Cir. 1993).

Here, Ruiz contends there was no extrinsic evidence of

a conspiracy between herself and Delarosa.1 She first urges that

the district court improperly weighed circumstantial evidence that

she twice drove Delarosa to meet with Bravo about a heroin deal.

Ruiz observes there was no evidence she knew on either occasion

that Delarosa planned to meet Bravo. She posits that the only

evidence of a conspiracy was Bravo's testimony that Ruiz confirmed

the location of the heroin during the second meeting. Ruiz,

however, says Bravo's testimony was not credible because it

1 Ruiz does not challenge whether the purported coconspirator statements were made in furtherance of the conspiracy. - 13 - contradicted a transcript of Bravo's recording of the meeting.

Thus, she concludes she was merely present at the scene of the

conspiracy and, therefore, argues the district court erroneously

admitted Delarosa's conversations with Bravo.

Ruiz's arguments lack support. As the district judge

made clear, Bravo's trial testimony was immaterial to its

Petrozziello ruling. Rather, the district court concluded the

government proved by a preponderance that Delarosa and Ruiz were

in a conspiracy because (1) "at the first meeting and then again

at the second meeting, . . . she was driving the car" and (2) "it

was plainly discussed in the first meeting that the heroin, the

brown thing, was the object of the transaction." Ruiz's driving

Delarosa in her automobile to two meetings with a wholesale drug

dealer is the extrinsic evidence between Ruiz and the declarants

that she now claims is missing.

Although the district court may not have expressly

relied on this portion of the transcript, Ruiz's own inculpatory

statements from the transcripts further support the district

court's Petrozziello ruling. When Bravo hesitated to talk about

purchasing drugs in front of Ruiz, she reassured him, saying, "Let

me tell you something[,] [Delarosa] and I would be like you and

[your boss]." Ruiz's statement is not hearsay and is admissible

under Federal Rule of Evidence 801(d)(2)(A) as a statement of an

opposing party. See United States v. Mitchell,

, 24

- 14 - (1st Cir. 2010) (accepting a district court's use of "recordings

of phone calls, which came into evidence as the defendant's own

admissions" as extrinsic evidence of a drug conspiracy). By making

this statement, Ruiz inculpated herself in the conspiracy and

explained her role. Ruiz's own statement is additional extrinsic

evidence she claims is lacking.

Ruiz's mere presence argument fares no better. The

circumstantial evidence at trial indicated Ruiz actively

participated in the conspiracy. She twice drove Delarosa to meet

with Bravo about a heroin transaction. According to the

transcripts of the conversations in the Honda Civic, she saw and

heard the men planning criminal activity. Despite this, Ruiz drove

Delarosa to another meeting with Bravo. Therefore, rather than

Ruiz being "merely present," the evidence supported the district

court's conclusion that she participated in the conspiracy by

ferrying Delarosa to two meetings with a potential buyer and

driving approximately 1.8 kilograms of heroin to the second

meeting.

In summary, the government presented extrinsic evidence

at trial, including Ruiz's own inculpatory statement and her

driving Delarosa to a heroin sale, to support the admission of the

statements of coconspirators. Alongside the coconspirator

statements, such as Delarosa referring to Ruiz as his "right hand

in everything," the district judge was fully justified in

- 15 - concluding that this evidence proved by a preponderance that Ruiz

and Delarosa were coconspirators. Ruiz is correct that the

government introduced no direct evidence that she knew she was

driving Delarosa to meet Bravo. It does not matter. The

government's direct and circumstantial evidence satisfied

Petrozziello. The district court's ruling was neither clear error

nor an abuse of discretion.

B. The Jury Instructions

Ruiz next argues the district court's jury instructions

were plain error. She claims the district court incorrectly

instructed the jury that it could convict her of conspiracy and

aiding and abetting based on intent alone. This claim of error is

waived, and we therefore reject it.

When a party affirmatively requests a particular jury

instruction, that party waives its right to challenge that

instruction on appeal. See United States v. Chen, No. 19-1962,

, at *8 (1st Cir. May 17, 2021) ("An

issue may also be waived if counsel's own conduct invited the trial

judge's ruling."); Lara,

("[The defendant] targets

language in the instruction that is not materially different from

the language that his counsel requested. Accordingly, the

challenge has been waived."); United States v. Kakley,

(1st Cir. 1984) (concluding that a defendant who

requested a particular jury instruction concerning the elements of

- 16 - conspiracy had waived his right to challenge the instruction on

appellate review).

This is a textbook waiver. Absent unusual circumstances

not present here, see United States v. Orsini,

, 120-

21 (1st Cir. 2018), Ruiz may not challenge language in the jury

instructions that she herself proposed. That is the end of the

matter.

C. The Mitigating Role Reduction

Ruiz's final challenge is that the district court

wrongly imposed a three-level, rather than four-level, mitigating

role reduction. We have explained that a sentencing judge's

decision concerning a mitigating role adjustment is "a fact-

specific inquiry" and reversal is appropriate only where the

defendant demonstrates "the district court's determination as to

his role in the offense was clearly erroneous." United States v.

Mendoza-Maisonet,

(1st Cir. 2020) (quoting United

States v. De la Cruz-Gutiérrez,

(1st Cir.

2018)). This standard is highly deferential, and reversal is

rare. See

Section 3B1.2 of the United States Sentencing Guidelines

permits a sentencing judge to decrease the offense level of a

defendant who had a mitigating role in the offense. U.S.

Sentencing Guidelines Manual § 3B1.2 (U.S. Sentencing

Comm'n 2018). The Guideline commentary includes a non-exhaustive

- 17 - list of factors for courts to consider when ruling on a mitigating

role adjustment, including the defendant's understanding of the

criminal activity's scope and structure, whether the defendant

participated in planning or organizing the activity, whether the

defendant exercised decision-making authority, or influenced the

exercise of such authority the defendant's specific acts, and the

benefits the defendant derived from the criminal activity. Id.

§ 3B1.2 cmt. n.3(C)(i)-(v).

Under section 3B1.2(a), a sentencing judge may reduce a

minimal participant's offense level by four levels. Id.

§ 3B1.2(a). This reduction "is intended to cover defendants who

are plainly among the least culpable of those involved in the

conduct of a group." Id. § 3B1.2 cmt. n.4. A "defendant's lack

of knowledge or understanding of the scope and structure of the

enterprise and of the activities of others is indicative of a role

as minimal participant." Id. Section 3B1.2(b) permits a

sentencing judge to reduce a minor participant's offense level by

two levels. Id. § 3B1.2(b). A defendant is a minor participant

when the defendant is a person "who is less culpable than most

other participants in the criminal activity, but whose role could

not be described as minimal." Id. § 3B1.2 cmt. n.5. A defendant

who is neither a minimal participant nor a minor participant but

had a mitigating role may receive a three-level reduction. Id.

§ 3B1.2.

- 18 - A defendant bears the burden of proving a mitigating

role adjustment is applicable by a preponderance. Mendoza-

Maisonet,

. A defendant is never entitled as a

matter of law to a mitigating role downward adjustment. See United

States v. Montes-Fosse,

(1st Cir. 2016); United

States v. Santos,

(1st Cir. 2004)("[E]ven those

who serve purely and simply as drug couriers are not automatically

guaranteed mitigating role reductions.").

Ruiz insists the district court's decision to apply a

three-level mitigating role reduction was clearly erroneous. She

relies on language from United States v. Innamorati,

(1st Cir. 1993), and argues that as a drug courier

in a single transaction, she should have received a four-level

minimal participant reduction. Her reliance on Innamorati is

unpersuasive. First, to the extent that Ruiz implies drug couriers

should automatically receive a mitigating role reduction, we have

previously rejected this argument and do so again here. See United

States v. Vargas,

(1st Cir. 2009) ("The appellant

seems to assume that couriers are automatically entitled to

mitigating role adjustments. That is an incorrect assumption.").

Second, the language Ruiz cites from Innamorati concerns a prior

version of the Guideline commentary which listed "an individual

recruited as a courier for a single transaction in a[] larger

enterprise" as a minimal participant.

. This

- 19 - commentary is no longer in force. See U.S.S.G. app. C supp.,

amend. 635. The district court did not err by failing to apply

inapplicable Guideline commentary.

Here, the district court rejected Ruiz's argument for a

four-level mitigating role adjustment after considering her

involvement in the heroin conspiracy and distribution offenses.

The district court determined Ruiz could not be a minimal

participant because she drove Delarosa to two meetings with Bravo.

The district court also considered Ruiz's inculpatory statements,

in which she encouraged Bravo to speak freely about the drug

transaction in her presence because he could think of Delarosa as

her "boss." At the same time, the district court's analysis was

not one-sided. It also noted that there was no evidence that Ruiz

made any money from heroin dealing or that she had previously

helped Delarosa sell drugs. For these reasons, the district court

concluded that a three-level, rather than four-level adjustment

was appropriate.

The record amply supports the district court’s finding

that Ruiz was no mere courier or mule. Ruiz drove Delarosa, a man

she described as her boss and who could not drive himself, to a

$120,000 drug deal with nearly 2 kilograms of heroin in her car.

On these facts, we find nothing clearly erroneous about the

district court's decision to apply a three-level mitigating role

reduction. See De la Cruz-Gutiérrez,

(holding

- 20 - that a district court's conclusion that a defendant was no

"ordinary mule" for purposes of a mitigating role enhancement was

not clearly erroneous because a district court's choice between

supportable alternative inferences cannot be clearly erroneous).

As we have said before, whether and to what extent a

defendant occupies a mitigating role "is, within wide limits, best

left to the sentencing court." Vargas,

. In this

case, the sentencing judge did not come close to traversing those

wide limits.

III. Conclusion

Affirmed.

- 21 -