SELYA, Circuit Judge.
In these consolidated criminal appeals, the defendants — represented by newly appointed counsel — offer up a salmagundi of arguments. Virtually all of these arguments were either forfeited or waived in the court below. Attempting to reinvent a case on appeal is a tactic that very rarely works — and it does not work here. After careful consideration, we conclude that none of the components of the defendants' asseverational array withstands scrutiny under the largely inhospitable standards of review that apply. Consequently, we affirm the defendants' convictions and sentences.
We start with a bird's-eye view of the facts — recited in the light most favorable to the jury's verdict,
In 2012, agents of the Bureau of Alcohol, Tobacco, Firearms and Explosives arrested dozens of members of a sprawling drug-trafficking ring operating mostly out of three public housing complexes in Carolina, Puerto Rico (El Coral, Lagos de Blasina, and El Faro). David Oppenheimer-Torres (Oppenheimer), who headed this drug ring, typically hired project residents to package and sell various kinds of drugs to fellow inhabitants of their communities. Many of Oppenheimer's associates carried firearms and used violence to carry out the drug ring's objectives.
Defendant-appellant Abraham Walker-Couvertier (Walker) toiled as a runner, responsible for delivering drugs to pushers at the three housing projects. He also served as an enforcer for the drug ring and sold drugs at the El Coral project. Walker participated in the conspiracy from 2006 to 2010. Defendant-appellant Dean Lugo-Díaz (Lugo) worked as a seller at the El Faro project. He was an active participant in the drug ring's business in two different time frames: for a period of time between late 2006 and early 2007 and again for a period of several months in early 2011.
In May of 2012, a federal grand jury returned a six-count indictment against Walker, Lugo, and seventy-two other individuals allegedly involved in the Oppenheimer drug ring. As relevant here, the indictment charged the defendants with conspiring to distribute and possess with intent to distribute specified amounts of heroin, cocaine, crack cocaine, and marijuana within 1,000 feet of a public housing facility (count one).
Of all the defendants, only Walker and Lugo opted to maintain their innocence. During the eight-day trial, the jury heard testimony from cooperating witnesses and police officers and viewed videotape and documentary evidence. At the close of the government's case-in-chief, Walker and Lugo each moved for judgment of acquittal.
The case went to the jury, which found both defendants guilty of conspiring to possess with intent to distribute at least one kilogram of heroin, five kilograms of cocaine, 280 grams of crack cocaine, and 100 kilograms of marijuana, all within 1,000 feet of a public housing facility. It also found both defendants guilty of aiding and abetting the possession with intent to distribute between 500 grams and five kilograms of cocaine and between twenty-eight and 280 grams of crack cocaine. Both defendants were found guilty of aiding and abetting the possession with intent to distribute marijuana within 1,000 feet of a public housing facility (Walker was found responsible for more than 100 kilograms, and Lugo was found responsible for between five and 100 kilograms). Walker also was found guilty of carrying a firearm during and in relation to a drug-trafficking crime. Finally, the jury acquitted Walker of aiding and abetting the possession with intent to distribute heroin.
Lugo — but not Walker — renewed his motion for judgment of acquittal after the jury rendered its verdict.
In cases involving multiple types of drugs, drug quantities are converted into their marijuana equivalents and added together to aid in the calculation of the applicable guideline sentencing range (GSR).
II. CHALLENGES TO THE CONVICTIONS.
The defendants have advanced arguments that implicate both their convictions and their sentences. We deal first with their conviction-related claims, taking them in an order that roughly parallels the proceedings below.
Statute of Limitations.
Lugo challenges the timeliness of his prosecution, insisting that his initial period of participation in the conspiracy — which ran from late 2006 to early 2007 — is beyond the applicable five-year statute of limitations.
The Supreme Court recently has held that a defendant can never successfully pursue a statute-of-limitations defense for the first time on appeal.
So it is here. Lugo did not question the timeliness of his prosecution below. Thus, the district court's failure to consider that issue was not error.
English Proficiency Requirement.
Both Walker and Lugo challenge the constitutionality of the requirement, as applied in the District of Puerto Rico, that jurors be proficient in English. The requirement itself is statutory in nature: Congress has provided that jurors who serve in federal court trials must be able to read, write, and understand English with at least minimal proficiency.
This claim was not advanced below, and it is subject to plain error review.
The English proficiency requirement, on its face, puts in place a sensible modality for the conduct of trials in federal courts. Not surprisingly, this requirement has survived a steady stream of attacks in this circuit.
Only a handful of narrow exceptions to this doctrine exist. These exceptions include "the occurrence of a controlling intervening event (e.g., a Supreme Court opinion on the point; a ruling of the circuit, sitting en banc; or a statutory overruling) or, in extremely rare circumstances, where non-controlling but persuasive case law suggests" departing from prior precedent.
Admission of Traffic-Stop Evidence.
Walker argues that the district court erred when it permitted the government to introduce evidence seized during a July 2008 traffic stop. The relevant facts can be succinctly summarized. Puerto Rico police officers came across Walker's car while on patrol. They observed that the license plate was partially obscured (in violation of local traffic laws) and stopped the car so that they could investigate the putative violation. During the ensuing stop, the officers obtained Walker's consent to a search of the vehicle. In the course of that search, the officers found cash, a loaded gun, a small bag of marijuana cuttings, and a marijuana cigar.
At trial, Walker for the first time questioned the propriety of the traffic stop and sought suppression of the evidence seized. He insisted that the officers were interested in his car because they suspected his involvement in a criminal organization then under investigation and that their traffic-violation rationale was pretextual. The district court denied the motion to suppress on the merits and allowed the government to introduce the disputed evidence.
In this venue, Walker attempts to raise a variety of more particularized challenges to the warrantless stop. He argues, for example, that the government did not have reasonable suspicion adequate to justify the stop,
We need not reach the merits of Walker's argument. The critical datum is that he did not move to suppress the evidence seized until his trial was already well underway. That delay is fatal to the challenge that he now seeks to pursue.
Walker's claim of error is governed by the version of the rule that was in effect when the district court adjudicated his motion.
Contrary to Walker's importunings, the fact that the district court elected to deny his motion on the merits does not alter our analysis. That a district court chooses to address a motion on the merits does not preclude an appellate court from ruling that the motion should have been denied on a procedural ground (such as waiver or preclusion).
The defendants attack several statements made by the prosecutor during closing argument. They strive to convince us that the statements were so improper and prejudicial as to demand a new trial. We are not persuaded.
When, as in this case, a defendant does not contemporaneously object to a statement made during closing argument, review is for plain error.
We have made it pellucid that, as applied to closing arguments, the plain error standard requires the court first to determine whether the challenged comment is obviously improper, that is, whether the first two prongs of the plain error standard have been satisfied.
The defendants first complain that the prosecutor went astray when he said, without objection:
The defendants contend that this statement amounted to an improper reference to extra-record evidence.
It is elementary that cases should be tried and decided based on the evidence before the jury,
Even so, the possibility that the prosecutor's statement affected the outcome of the trial is miniscule. The copious trial evidence provided overwhelming proof of the defendants' guilt. It is a commonsense proposition that "the well is . . . less likely to have been poisoned where strong evidence supports the prosecutor's case."
With respect to Walker, no fewer than three witnesses testified in detail about his involvement in the conspiracy. One identified him as a runner and pusher at the El Coral housing project who sold cocaine, crack cocaine, and marijuana. A second confirmed that Walker served as a runner and explained that she, too, had seen him sell cocaine, crack cocaine, and marijuana at El Coral on several occasions. The third (a self-confessed pusher in the drug ring) testified that Walker provided him with cocaine to sell. All three witnesses testified that Walker carried a gun while distributing drugs, and one witness confirmed that the gun carried by Walker was the same color and type as the gun seized from Walker's car during the July 2008 traffic stop. In addition, a police officer testified that when Walker was arrested in September of 2010, he was carrying 25 vials of crack cocaine.
So, too, equally robust evidence supported Lugo's conviction. A government witness testified that Lugo sold him marijuana several times a week between 2006 and 2007. The same witness testified that he had seen Lugo sell cocaine, crack cocaine, and marijuana to others in the housing project. Further, the witness explained that he and Lugo would sometimes smoke marijuana together and give each other advice about selling drugs and evading law enforcement.
To make the cheese more binding, the government introduced a number of surveillance videos. Construing the videos in the light most favorable to the verdict,
One other point deserves special mention. Although the defendants did not request a curative instruction specifically addressing the prosecutor's improper "boatloads" reference and the district court did not give one, the court did instruct the jurors (after the closing arguments had been completed) that their verdict must be based solely on the evidence. The court added that "[a]rguments and statements by lawyers are not evidence." These instructions mitigated any adverse impact that the improper statement might otherwise have had.
Walker challenges several other statements made during the prosecutor's summation. For example, he alleges that the prosecutor engaged in improper vouching. Once again, further facts are needed to put this allegation in context.
Throughout the trial, Walker's counsel attempted to discredit government witnesses by eliciting testimony that they had agreed to cooperate in exchange for leniency at sentencing. During summation, the prosecutor — attempting to combat this line of attack — noted that two of the government's three cooperating witnesses had testified that they were concerned that helping the government could put them at risk of retaliation. The prosecutor asked the jurors whether it would make sense to testify "and risk their lives to what, save a couple of years?" It is this statement that Walker insists amounted to vouching.
Vouching occurs when a prosecutor "places the prestige of her office behind the government's case by, say, imparting her personal belief in a witness's veracity or implying that the jury should credit the prosecution's evidence simply because the government can be trusted."
Next, Walker (who did not testify on his own behalf) asserts that the prosecutor commented on his silence, in violation of the Fifth Amendment.
Walker's contention that these statements amounted to comments on his failure to testify is made up out of whole cloth. When a defendant maintains that the prosecutor commented on his silence, the central question reduces to "whether, in the circumstances of the particular case, the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify."
Walker finds fault with yet another aspect of the prosecutor's summation. He insists that the prosecutor referred to facts not in evidence when he stated that Walker "went and got another [gun]" after police officers, during the July 2008 traffic stop, seized the gun that had been in his car. As Walker sees it, "[t]here was no trial evidence supporting the prosecutor's statement."
The record tells a different tale. One of the government's witnesses, testifying about conduct that occurred after 2008, vouchsafed that she regularly saw Walker with a firearm. There was no evidence that the seized gun was ever returned to Walker, so it was a reasonable inference that any gun carried by Walker
Lugo advances a claim of instructional error.
At the close of the government's case-in-chief, the court concluded that there was insufficient evidence to support the charge against Lugo for aiding and abetting the distribution of heroin. Accordingly, it granted Lugo's Rule 29(a) motion for judgment of acquittal on that count. In its end-of-the-case jury instructions, the court told the jury that the court had "dismissed that charge" after determining that "the proof did not find sufficiency."
Before us, Lugo argues for the first time that the court's statement necessarily implied that there was sufficient evidence to support a verdict for the government on the remaining counts. In his view, the statement implicitly diminished the government's burden of proof on those counts. Because he did not object to the jury instructions when they were given, his claim is reviewed for plain error.
The "plain error hurdle . . . nowhere looms larger than in the context of alleged instructional errors."
The short of it is that the challenged statement is ambiguous. When a prosecutor makes an ambiguous remark, a reviewing court "should not lightly infer that [the] prosecutor intend[ed the] remark to have its most damaging meaning or that a jury . . . will draw that meaning from the plethora of less damaging interpretations."
We hold that where, as here, an instruction is ambiguous and is not objected to in a timely manner, a reviewing court should hesitate to give the instruction its most pernicious meaning. In this instance, a context-specific review satisfies us that the challenged statement, viewed under the totality of the circumstances, has not affected the trial's fairness.
Scope of the Conspiracy.
Lugo challenges the sufficiency of the evidence underlying his conspiracy conviction. Specifically, he assigns error to the district court's denial of his post-trial motion for judgment of acquittal on the ground that the government did not prove the existence of a single mega-conspiracy. In his view, the totality of the evidence indicated no more than that he participated in a mini-conspiracy operated out of one housing project, not in a broader conspiracy covering all three housing projects. Since this issue was preserved below, we review the denial of his Rule 29(c) motion de novo.
Our assessment of whether the evidence supports a finding of a single conspiracy must be "pragmatic" in nature.
To begin, the evidence supported a reasonable inference that all of the individuals that worked under Oppenheimer (including Lugo) shared a common goal: "furthering the distribution of drugs."
A rational jury also could have found that the participants were interdependent. Such a finding requires evidence from which a jury reasonably could conclude that "the activities of one aspect of the scheme [were] necessary or advantageous to the success of another aspect of the scheme."
Last — but not least — the evidence supported a finding that the participants overlapped. Such a finding does not require a showing that every coconspirator knew his fellow coconspirators.
In this case, the government's proof showed a classic hub-and-spokes conspiracy, with Oppenheimer as the hub. In particular, the evidence made pellucid Oppenheimer's pervasive involvement as the core coconspirator.
In an effort to blunt the force of this reasoning, Lugo submits that the evidence cannot support a finding that he was part of a single mega-conspiracy because there was no evidence that he personally sold drugs in two of the three housing projects. The fact that he did not sell drugs at all three sites does not take Lugo very far. A defendant need not be personally involved in all of a conspiracy's activities in order to be held criminally responsible for the conspiracy's wrongdoing.
That ends this aspect of the matter. The evidence, viewed in the light most favorable to the verdict, amply supports the jury's determination that Oppenheimer ran — and Lugo participated in — a single mega-conspiracy.
Lugo soldiers on. Although his primary argument is framed as a challenge to the sufficiency of the evidence, he suggests in passing that the evidence varied from the indictment (which charged him with participation in a single conspiracy). We quickly dispose of this suggestion.
"A variance occurs when the crime charged remains unaltered, but the evidence adduced at trial proves different facts than those alleged in the indictment."
Lugo has one further shot in his sling. He assails the district court's failure to give the jury a multiple-conspiracy instruction explicitly describing the difference between a single conspiracy and multiple conspiracies, including "specific factors that [the jury] could consider" in making such a determination. In the court below, Lugo did not request such an instruction. Accordingly, our review is for plain error.
A multiple-conspiracy instruction is warranted "if, on the evidence adduced at trial, a reasonable jury could find more than one such illicit agreement, or could find an agreement different from the one charged."
Here, however, the evidence supported the jury's single-conspiracy finding, and Lugo has not explained how the absence of a multiple-conspiracy instruction affected his substantial rights. Nor can he make such a showing: the district court instructed the jury that the government bore the burden of proving "that the agreement specified in the indictment, and not some other agreement or agreements, existed between at least two people" and "that the defendants willfully joined in that agreement." These instructions made pellucid that the government had to prove not only that an overall conspiracy existed but also that Lugo was a part of it. If the jurors entertained any reasonable doubt that Lugo was a part of the conspiracy charged, the instructions told them that they must acquit. These clearly articulated instructions protected Lugo from any prejudice.
III. CLAIMS OF SENTENCING ERROR.
We next address the defendants' claims of sentencing error. When a defendant raises both procedural and substantive claims of sentencing error, we first address those claims that allege procedural infirmities.
Walker claims that the district court engaged in improper factfinding when it calculated the drug quantities attributable to him for sentencing purposes. These claims are twofold. First, he says that the sentencing court had no business finding facts at all, since such factfinding is the exclusive province of the jury. Second, he asserts that any judicial factfinding at sentencing should have been supported by clear and convincing evidence. We review these unpreserved claims for plain error.
At a criminal trial, the government bears the burden of proving beyond a reasonable doubt any drug quantity charged in the indictment as an element of the offense.
This framework is augmented at sentencing. Because "a defendant-specific determination of drug quantity [i]s a benchmark for individualized sentencing under the guidelines,"
At Walker's disposition hearing, the district court, using a preponderance-of-the-evidence metric, found him responsible for the equivalent of 12,885.56 kilograms of marijuana. Walker maintains that this factfinding runs afoul of both
We have said before — and today reaffirm — that "[n]o. . . error occurs when a defendant's sentence is based . . . on Guidelines considerations without changing the applicable mandatory minimum" or maximum sentence.
Walker's contention that the judicial factfinding should have been supported by clear and convincing evidence, rather than by preponderant evidence, is insupportable. We have repeatedly — and recently — upheld the use of the preponderance standard at sentencing.
Lugo challenges the district court's decision to hold him responsible for what amounted to 1,328.41 kilograms of marijuana.
At sentencing, the court made a series of findings to help determine the drug amounts attributable to Lugo. First, it concluded that Lugo participated in the conspiracy for a total of 267 days. Next, it calculated the average amount of cocaine, crack cocaine, and marijuana sold by the conspiracy in the course of a typical day. The court then divided each figure by three to approximate the amount of drugs sold daily at the El Faro housing project (where Lugo worked). Finally, the court multiplied the resulting values by 267 to approximate the amount of drugs that Lugo sold during his periods of active participation in the conspiracy.
Lugo takes issue with several of these steps. First, he questions the court's decision to hold him accountable for 267 days of conspiracy participation. Because Lugo raised this argument below, we review the court's fact-based determination for clear error.
The court arrived at its 267-day figure after reviewing trial testimony and concluding that Lugo participated in the Oppenheimer drug ring from October of 2006 to March of 2007 and from January of 2011 through April of 2011. The record supports this determination. At least one witness testified that he regularly purchased marijuana from Lugo in "2006 up to the beginning of 2007." The same witness testified that he observed Lugo selling both cocaine and crack cocaine in 2007. In addition, videotapes showed Lugo selling drugs in January, February, and April of 2011.
Drug quantity determinations do not have to be exact.
Lugo also asserts that the district court erred when it did not credit his claim that he sold drugs only "one to two" times per week. This claim, however, misses the mark. Where, as here, a defendant has been convicted as a coconspirator, his relevant conduct for sentencing purposes "includes not only his own acts and omissions but also the reasonably foreseeable acts and omissions of other coconspirators in furtherance of the conspiracy."
Battling on, Lugo challenges the sentencing court's decision to divide the drug sales attributable to the entire conspiracy by three as a means of calculating the sales reasonably attributable to the El Faro housing project. He insists that "[t]here was no testimony that the drug sales at El Faro were as high as those in the other housing projects." Given that evidentiary gap, he argues that the court erred when it divided the drug amounts evenly among the three projects.
One conspicuous fly in the ointment is that Lugo did not make this argument below. Consequently, our review is for plain error — and we discern none here. Lugo identifies no evidence compelling the conclusion that the drug sales at El Faro were less than the drug sales at either of the other projects. Given this dearth of evidence, we cannot say that the district court plainly erred in opting to attribute one-third of the gross sales to El Faro.
Lugo next suggests that the district court erred when it attributed 280 grams of crack cocaine to him. This suggestion, too, surfaces for the first time on appeal, so review is for plain error.
The sentencing court settled on the disputed figure because that figure represented the maximum amount for which the jury found Lugo responsible at trial. In Lugo's view, the court should have divided 280 grams by three, to account for the fact that the jury's figure represented drug sales at all three projects.
Lugo's argument misconceives the method that the court used to calculate the amount of crack cocaine attributable to him. When the court performed its calculations, it used the same approach for crack cocaine that it used for the other drugs. In the end, this yielded a drug weight of 787 grams — more than the jury's 280-gram finding. With this in mind, the court found Lugo responsible for 280 grams of crack cocaine — a finding that both reflected the jury's verdict and avoided any conflict with the applicable statutory range framed by that verdict.
Finally, Lugo makes veiled references to a claim of substantive unreasonableness and a claim that the district court was predisposed to impose a particular sentence. Such references, without more, are not adequate to preserve those claims for appellate review.
We need go no further. For the reasons elucidated above, the judgments below are