United States Court of Appeals For the First Circuit
UNITED STATES OF AMERICA,
UNITED STATES OF AMERICA,
LUIS XADIEL CRUZ-VAZQUEZ,
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Thompson, Baldock,* and Lipez, Circuit Judges.
* Of the Tenth Circuit, sitting by designation.
Nathan P. Diamond for appellant Angel Ayala-Vazquez. Rafael F. Castro Lang for appellant Luis Xadiel Cruz-Vazquez. Timothy R. Henwood, Assistant United States Attorney, with whom Nelson Pérez-Sosa, Assistant United States Attorney, and Thomas F. Klumper, Assistant United States Attorney, were on brief, for appellee.
May 2, 2014
THOMPSON, Circuit Judge. Blood is often thicker than
water. Brothers Angel Ayala-Vazquez ("Ayala") and Luis Xadiel
Cruz-Vazquez ("Cruz") (collectively, "appellants") appeal their
convictions on multiple criminal charges related to their
involvement in a wide-ranging drug trafficking organization based
out of the Jose Celso Barbosa Public Housing Project ("Barbosa")
and the Sierra Linda Public Housing Project ("Sierra Linda") in
Bayamon, Puerto Rico. Unlike dozens of others who entered guilty
pleas, and some others who testified against them in the hope of
lessening their own punishments, Ayala and Cruz hunkered down and
stood trial together. They were both convicted, and each received
a life sentence.
The two brothers now argue they should be acquitted
because the evidence introduced at trial was not sufficient to
support the jury verdicts. Failing that, they seek a new trial on
the grounds that the trial judge improperly acted as an extra
prosecutor and added to the evidence against them through the way
in which he questioned several witnesses. Should neither of these
claims be resolved in his favor, Cruz additionally contests his
life sentence on the grounds that he was less culpable than his
brother and, therefore, he should not be fated to spend the rest of
his life in prison too.
We have carefully considered the extensive trial record
and the brothers' legal positions. After doing so, we conclude
there is no merit to any of the arguments advanced by the brothers
on appeal. Accordingly, we affirm their convictions and Cruz's
We set forth the basic facts in the light most favorable
to the verdict, United States v. Rios-Ortiz, 708 F.3d 310 , 312 (1st
Cir. 2013), reserving additional details for our discussion of the
specific issues raised in this appeal. Brothers Ayala and Cruz
were arrested and indicted following a federal investigation into
an extensive and long-lived drug trafficking organization ("DTO")
based out of Barbosa.1 The appellants were indicted together along
with sixty-three other individuals alleged to have taken part in
the DTO. The Indictment identified each defendant by first name,
last name, and, if applicable, nicknames or aliases.2 When it drew
up the Indictment, the government assigned each defendant a number
from one through sixty-five, with Ayala as number one and Cruz
The Indictment charged the appellants and other co-
conspirators with selling a substantial amount of drugs, including
1 The Indictment also charged the brothers with illegal drug distribution at Sierra Linda. However, the testimony at trial--and the issues raised on appeal--focused on the DTO's activities at Barbosa. Accordingly, we limit our discussion to the evidence related to Barbosa only. 2 The Indictment listed at least one alias for forty-eight of the sixty-five named defendants.
marijuana, cocaine base ("crack"), cocaine, and heroin at various
drug points throughout Barbosa and at other locations. It further
contained several counts of conspiracy to commit money laundering
through various schemes, including one count alleging that the
appellants put up drug money to pay for extravagant annual
Christmas parties for Barbosa's residents. The Indictment also set
forth forfeiture counts seeking a money judgement of $100,000,000,
along with forfeiture of numerous motor vehicles, race cars,
watercraft, and parcels of real estate in Puerto Rico and Florida.
The other defendants named in the Indictment--with the
exception of a few who could not be located--reached individual
plea agreements with the government, and in the end Ayala and Cruz
were the only two who stood trial. The evidence at trial outlined
in detail each brother's specific role in the DTO. We recount some
of the undisputed highlights.
As befitting his position as the first listed defendant,
the government set out to prove that Ayala was the kingpin of the
entire DTO. The eleven-count Indictment (ten counts of which were
directed against Ayala) charged Ayala and sixty-four others with a
panoply of drug crimes, including conspiracy with intent to
distribute various controlled substances, conspiracy to import
large quantities of cocaine into Puerto Rico, possession with
intent to distribute controlled substances (heroin, crack, cocaine,
and marijuana) within one thousand feet of a public housing
facility,3 and conspiracy to commit money laundering. After a
lengthy trial, the jury convicted Ayala on the first nine counts.
Ayala does not contest the jury's acceptance of the vast majority
of the facts testified to at trial. Instead, he argues that his
conviction and sentence should be vacated due to a variety of other
legal errors, which we will address in time. For now, we summarize
the essential facts testified to at trial and to which Ayala does
not object on appeal.
Ayala became involved with drug sales at Barbosa more
than two decades ago, when he sold heroin, crack, cocaine, and
marijuana. At first Ayala sold these drugs along with another man
named Steven, but when Steven died in 1995 Ayala took over the DTO
himself and became the "boss" or "leader of the drug point owners"
at Barbosa. Ayala was "always armed for protection, because of
local drug wars." The drug point owners within Barbosa paid rent
to Ayala for the privilege of selling drugs there. Only people who
Ayala knew or who had positions of responsibility within the DTO
were allowed to sell drugs.
Witnesses testified that drug sales occurred at Barbosa
twenty-four seven. To improve security, Ayala directed that gates
3 Ayala concedes, and Cruz does not contest, that Barbosa is a low-income public housing project administered by the United States Department of Housing and Urban Development.
be installed between two buildings in Barbosa.4 The gates, which
Ayala paid for, were intended to keep the drug sellers from being
identified or apprehended by the police. Two sellers worked at
each gate, and drugs purchased there were literally handed to
customers through the iron bars. This physical barrier helped
shield the sellers from any attempted arrest. Sellers also wore
shirts over their faces to conceal their identities from the
Also on the security front, Ayala employed lookouts to
provide a further level of protection. Lookouts were equipped with
radios and were responsible for notifying higher-ups when police
officers entered Barbosa or if they noticed anyone suspicious. One
witness testified she earned $75 for each shift she worked as a
The size and scale of the DTO's Barbosa operations can be
appreciated from testimony regarding just a few of the drug sales
there. According to one of the coconspirators, Jose Arce Baez
(number 37 on the Indictment), drugs were available twenty-four
hours a day. Baez recalled that on one day in March 2001, 240
grams of crack, 600 baggies of heroin, 10 to 15 packets of
marijuana and 250 to 375 baggies of cocaine were sold. A DEA
informant, Burke Declet, said he purchased 3 vials of crack, 1 bag
4 Nothing appears in the record as to how or why the Housing Authority would permit such a construction.
of marijuana, and 10 packets of heroin in April of 2008. Police
officers also described a February 2009 raid at Barbosa that ended
in a search of an apartment where the police discovered and seized
a radio used by the drug lookouts, along with 1,000 "decks" of
heroin and 400 "decks" of marijuana.5 Chemical analysis determined
these materials contained 146 grams of heroin and 428 grams of
marijuana. A further search on March 27, 2009, resulted in the
seizure of 51 grams of heroin and 300 grams of marijuana.
Subsequent police searches led to the seizure of 285 grams of
marijuana and 122 grams of heroin on April 7, 2009, 159 grams of
cocaine on April 8, 2009, and 177 grams of crack on May 7, 2009.
Trial testimony further indicated that Ayala's
involvement in the drug trade was not confined to sales in Puerto
Rico. Indeed, one drug trafficker testified that, between 2005 and
2008, he imported "thousands of kilos of cocaine and a small
portion of heroin" from the Dominican Republic for Ayala. Ayala
and two other conspirators, he said, went on to ship at least some
of those drugs to sellers in New York and other mainland
destinations. One example of the scope of drug imports into Puerto
Rico is a March 30, 2009, seizure by Puerto Rican police of a
flatbed truck that had come in from the Dominican Republic. When
they searched the truck, law enforcement agents discovered 182
5 A "deck," it was clear from the trial testimony, is an individual package of drugs. For example, a "deck" and a "baggie" of heroin are interchangeable terms.
kilos of cocaine and 12 kilos of heroin. There was also testimony
that in 2008, law enforcement agents seized two vessels arriving
from the Dominican Republic that contained drugs destined for
Ayala's DTO. Police discovered 600 kilos of cocaine and 7 kilos of
heroin on the first ship, and 397 kilos of cocaine on the second.
With respect to shipments to the mainland, one drug
seller testified that between February and November of 2007, he
received in New York as many as 100 kilograms per week from the
DTO. Another trafficker testified that between 2000 and 2006 the
DTO used commercial airlines to bring "kilos" of cocaine from
Puerto Rico to New York and Florida. The amount of drugs brought
in varied, but was between 120 and 300 kilos per trip. Trips were
made two or three times each week, and the witness testified that
in one month "about 5,000 kilos had been sent" to the mainland.
The Indictment identified Cruz's role in the DTO as that
of an "administrator" who "would, among other duties, supervise the
day-to-day operations of the various narcotics distribution points
within Barbosa, Sierra Linda and other locations within Puerto
Rico." Cruz was charged with one count of conspiracy to possess
with intent to distribute controlled substances, along with
separate counts for possession with intent to distribute heroin,
crack, cocaine, and marijuana. He also stood trial for his alleged
participation in a money laundering conspiracy. The jury returned
a guilty verdict on each crime charged against him.
Like his brother, Cruz does not contest the substance of
the testimony against him, focusing instead upon the inferences to
be drawn from the evidence and the purported unfairness of his life
sentence.6 While Cruz concedes that he was in fact involved in the
DTO and that he was an "administrator" at Barbosa and Sierra Linda,
he maintains that his participation was "limited" to those two
locales and characterizes his role as nothing more than a "third-
The testimony at trial indicated that Cruz was much more
than a minor player in the DTO. One witness testified Cruz was in
charge of daily operations at Barbosa whenever Ayala or the number
two man, Omar Median Santiago, was not around. In this capacity,
Cruz was responsible for ensuring the various drug points in
Barbosa actually had drugs on-hand to be sold there.
As an administrator of the DTO, Cruz gave orders to
others and made sure that people did not congregate in the middle
of Barbosa. It was important to keep large groups from forming
because this would attract attention from law enforcement agents
who periodically came into Barbosa. In addition, testimony showed
6 Throughout his brief, Cruz refers to certain witnesses as long-time drug addicts or as individuals testifying in the hopes of receiving lighter sentences in their own cases. Cruz, however, does not argue that we should disregard any of this testimony.
that Cruz worked as a runner delivering drugs to the sellers,
assigned "shifts" to the sellers, informed drug sellers of
locations in which the police had set up surveillance cameras, and
explained to the sellers why they should cover up their faces.
Testimony further indicated that Cruz acted as an
enforcer when necessary. In one instance, Jose Arce Baez (who
testified against Ayala as well) explained that he worked as a
seller and Cruz imposed discipline on individuals involved with the
DTO at Barbosa. Baez recounted one incident where he himself was
subjected to discipline as a result of having stolen "storm drains"
from an apartment because he thought they were made of aluminum.
When Cruz found out about this, Cruz took Baez aside into a
stairwell and told him that he could either take a "slap in the
face" as punishment or, failing that, Cruz could let Ayala know
what he had done. Baez opted for a Cruz-administered slap. Baez
also testified that he observed Cruz personally selling drugs from
time to time.
Having adequately framed the backdrop, we now take up the
appellants' specific arguments.
The appellants raise various grounds on appeal in their
attempt to reverse their convictions or, at the very least, obtain
a new trial. In seeking to reverse their convictions, the
appellants challenge the sufficiency of the evidence with respect
to certain counts of conviction. Failing that, they each claim
entitlement to a new trial because the trial judge violated their
right to a fair trial by acting as a prosecutor in his questioning
of various witnesses. They say that the district judge, under the
guise of questioning certain witnesses, abused his discretion by
making comments that added to the evidence against them. Finally,
Cruz solely argues that even if he is not entitled to an acquittal
or a new trial, his life sentence should be vacated as procedurally
and substantively unreasonable.
Unsurprisingly, the government disagrees. In its view
the convictions should stand because the evidence at trial--
including witness testimony, videotape, and seized drugs--more than
suffices to allow a reasonable jury to return guilty verdicts. The
government then urges us not to grant new trials because the trial
judge did not exceed his authority in questioning witnesses and
commenting on the evidence. As a fallback, the government argues
that even if the trial judge erred in his trial participation, the
appellants still are not entitled to a new trial because any such
error was harmless. And with respect to Cruz's life sentence, the
government states that it is procedurally and substantively
reasonable in light of the evidence adduced at trial, and asks us
to affirm it.
We address the arguments of each appellant in turn,
beginning with their sufficiency of the evidence arguments.
I. AYALA'S CHALLENGE TO THE SUFFICIENCY OF THE EVIDENCE
Ayala challenges the sufficiency of the evidence with
respect to three aspects of his convictions for drug possession and
money laundering. First, he argues the government did not
introduce sufficient evidence to allow the jury to find him guilty
of possessing with intent to distribute illegal drugs within 1,000
feet of a public housing facility in violation of 21 U.S.C. § 860.
Next, he challenges the sufficiency of the evidence to support the
jury's drug quantity findings. Finally, he contends that the jury
did not have enough evidence to find that he was involved in any of
the financial transactions alleged in Counts VII through IX.
Although Ayala argues that his sufficiency of the
evidence challenges present questions of law--which engender de
novo review--our review of the record shows Ayala did not muster a
sufficiency challenge as to any of the evidence admitted at trial.
Accordingly, this issue has not been preserved for appellate
review. We, of course, "review an unpreserved challenge to
sufficiency of the evidence only for plain error." United States
v. Pratt, 568 F.3d 11 , 15 (1st Cir. 2009). When employing plain
error review, we will affirm the conviction unless doing so "would
result in a 'clear and gross injustice.'" Id. (quoting United
States v. Bello-Perez, 977 F.3d 664 , 668 (1st Cir. 1992)). We
address each of these issues separately.
a. Possession With Intent to Distribute (Counts III - VI)
Ayala's first sufficiency challenge is to his convictions
on Counts III through VI, which alleged violation of 21 U.S.C. §
860 for possessing with intent to distribute illegal drugs within
1,000 feet of a public housing facility.7 Delineating the contours
of his challenge, Ayala admits the evidence allowed a jury to find
that he possessed illegal drugs with intent to distribute them in
Puerto Rico. He further concedes that there was enough evidence
for the jury to make the following findings: (1) Ayala supplied
drugs to sellers who were selling inside Barbosa; (2) the sellers
in turn sold those drugs inside Barbosa; (3) the sellers kept those
drugs in apartments and in vehicles; and (4) Ayala charged rent to
the sellers. He argues, however, that once he turned the illegal
drugs over to the sellers, he no longer had actual or constructive
possession over the drugs that were ultimately sold at Barbosa.
Expressed differently, Ayala's position is that once he placed the
drugs into the stream of (illicit) commerce, they were no longer
his drugs and, therefore, he is not responsible for their further
downstream distribution to the end users. Thus, he urges us to
overturn his convictions on the grounds that the evidence did not
7 The jury specifically found that the offenses charged in Counts III through VI occurred within 1,000 feet of a public housing facility.
prove he possessed with intent to distribute illegal drugs within
In rebuttal, the government argues the evidence at trial
showed Ayala controlled the DTO and, therefore, actually or
constructively possessed the illegal drugs distributed at Barbosa
even after they had left his physical custody. In support of this
theory, the government cites testimony from cooperating witnesses
to the effect that Ayala rose through the ranks of the drug
organization until he finally became the leader and took control of
the entire DTO from 1997 onwards. The government then goes on to
argue that the evidence showed Ayala controlled the specific manner
of distribution within Barbosa itself.9
21 U.S.C. § 860 makes it illegal for an individual to
"distribut[e], possess with intent to distribute, or
manufactur[e] a controlled substance in or on, or within one
thousand feet of, the real property comprising a . . . housing
facility owned by a public housing authority." 21 U.S.C. § 860(a).
8 As a corollary, Ayala argues that proof of possession within a public housing facility is a necessary element of the crimes charged against him. Accordingly, he asserts that his convictions can not be sustained on the basis of evidence that he possessed with intent to distribute illegal drugs in Puerto Rico generally. The government does not contest this aspect of Ayala's appeal. 9 The government also argues the evidence showed, at the absolute minimum, that Ayala was guilty of aiding and abetting the distribution of drugs within Barbosa. Because we conclude Ayala was properly convicted as a principal, we have no need to address a theory of accomplice liability.
Here, Ayala does not contest that the drugs are "controlled
substances" or that Barbosa constitutes a "housing facility owned
by a public housing authority." Instead, Ayala's argument is
centered on his contention that once the drugs left his physical
custody, he no longer possessed them or controlled the particulars
of their ultimate distribution and, therefore, is not guilty of
possession with intent to distribute at Barbosa in violation of 21
U.S.C. § 860.
"In order to prove possession with intent to distribute,
the government must show that the defendants knowingly and
intentionally possessed, either actually or constructively, a
controlled substance with the specific intent to distribute."
United States v. Garcia-Carrasquillo, 483 F.3d 124 , 130 (1st Cir.
2007). To establish constructive possession, the government must
show the defendant "knowingly ha[d] the power and intention at a
given time to exercise dominion and control over an object either
directly or through others." Id. Possession may be solely by one
defendant or jointly with others, which "occurs when both the
defendant and another person share power and intent to exercise
dominion and control over contraband." United States v. Howard,
687 F.3d 13 , 18 (1st Cir. 2012) (internal quotation marks omitted).
Having carefully reviewed the record, we conclude that the evidence
at trial proved Ayala, through his control of the DTO, retained
constructive possession of the illegal drugs even after they had
been distributed to the suppliers.
Ayala does not contest that he distributed drugs to
sellers who ultimately sold those drugs at Barbosa. Indeed, the
evidence at trial proved Ayala controlled all of the DTO's
operations there. For instance, the testimony showed Ayala was
responsible for having gates installed in Buildings 14 and 15 to
protect sellers from arrest, and that he controlled the operation
of these gates. There was also evidence that Ayala consolidated
multiple drug points within Barbosa itself, directed sellers to
distribute specific drugs out of specific buildings, and received
proceeds from the drug sales at Barbosa. And, as we discuss later,
there was evidence that Ayala instituted a regime in which he
required runners and sellers to "work for free" on certain days
each month and "donate" the money they would have made to finance
annual, elaborate Christmas parties attended by members of the DTO
and the residents of Barbosa.
From this evidence, a reasonable jury could conclude that
Ayala was intricately involved with--and indeed, controlled--the
entire DTO and all of its operations at Barbosa. Moreover, the
evidence showed Ayala dictated where sellers could sell certain
drugs at Barbosa, that he consolidated drug points there, and that
he caused the runners and sellers to contribute portions of their
earnings to pay for the Christmas parties put on by the DTO each
year at Barbosa. The jury was warranted in concluding that Ayala
exercised dominion and control over the drugs even after they left
his physical possession, through his control over his underlings in
the DTO. Accordingly, the evidence at trial proved Ayala
constructively possessed with intent to distribute illegal drugs at
Barbosa in violation of 21 U.S.C. § 860. Garcia-Carrasquillo, 483
F.3d at 130.10 Ayala's challenge to the sufficiency of the evidence
with respect to his conviction on Counts III through VI is without
b. Drug Quantity (Counts III - VI)
Moving on, Ayala next challenges the jury's drug quantity
findings with respect to his conviction on Counts III through VI.
Ayala first recognizes the jury found as a fact that he possessed
1 kilogram or more of heroin, 288 grams or more of crack, 5 or more
kilograms of cocaine, and 1,000 or more kilograms of marijuana, all
inside Barbosa. He contends, however, that the only evidence as to
drug weight at trial came from the amount of drugs the government
actually seized at Barbosa. These amounts--173 grams of heroin,
377 grams of crack, 159 grams of cocaine and 1.2 kilograms of
marijuana--Ayala points out, "fell far short of the charged amounts
10 The Indictment, of course, also charged Ayala with violating 21 U.S.C. § 860 as an aider and abettor. On that theory of criminal liability, "[t]he vital element to be proven is that the aider and abettor shared in the principal's essential criminal intent." See United States v. Campa, 679 F.2d 1006 , 1010 (1st Cir. 1982). The evidence at trial, however, proved that Ayala was guilty as a principal.
that the jury found." He then concludes, without citing any
authority, that the jury's ultimate finding with respect to drug
quantity was based on nothing more than "speculation and guess
Not surprisingly, the government disagrees completely.
It points out that in addition to the amount of drugs seized,
witnesses at trial testified to the size and scope of the DTO and
its drug sales. This evidence included testimony that the drug
point operated twenty-four seven until 2009. The government also
refers to testimony from cooperating witnesses regarding the
amounts of each type of drug sold on a typical day. For example,
the government refers us to the witness testimony that heroin was
sold in packages weighing a minimum of .22 grams per bag and that
at least 500 such bags were sold each day; that 120 or more grams
of crack were sold daily; that 250 to 500 baggies of cocaine were
sold on a daily basis, with an average weight of .24 grams per
baggie based on the seizure of 672 baggies; and that at least 100
packets of marijuana averaging 1.5 grams each were sold every day.
By extrapolating these amounts over the life of the conspiracy, the
government argues, the jury's drug quantity findings were amply
supported by the evidence.
Simply put, Ayala's belief that the jury was prohibited
from making a drug quantity determination that exceeded the amount
of drugs actually seized is mistaken. When determining drug
quantity, a jury may utilize and rely on witness testimony to
mathematically calculate drug quantities (based on, e.g., testimony
as to the duration of possession and distribution multiplied by the
amount distributed on a given day). United States v. Aviles-Colon,
536 F.3d 1 , 26 (1st Cir. 2008). Obviously in this case, the jury
made a drug quantity finding significantly exceeding the amount of
drugs actually seized by the government at Barbosa. We are
satisfied, however, that the trial testimony regarding the scope of
daily drug transactions in Barbosa supported the jury's ultimate
findings. Moreover, this was based not only on witness testimony,
but also the average weight of individual packages seized by the
government. In addition, although no witness testified as to the
weight of marijuana bags sold as part of the conspiracy, the jury
had sufficient evidence to infer their weight based upon the
evidence of (1) an undercover purchase of a bag weighing 2.2 grams,
and (2) the 1.5 gram average weight of the 953 bags actually
seized.11 Accordingly, the jury's findings with respect to drug
quantity were supported by the evidence introduced at trial.
c. Money Laundering Conspiracy (Counts VII - IX)
Finally, Ayala argues that his conviction on Counts VII
through IX should be overturned because there was no evidence at
trial as to his personal involvement with any of the financial
transactions alleged in those Counts. His position is that,
although the government's evidence "established each of the three
crimes of money laundering conspiracy, themselves," the government
nevertheless failed to establish one essential element of the crime
as it relates to him. Relying on United States v. Gotti, 459 F.3d
296 , 335 (2d Cir. 2006), Ayala argues the government was required
to show that he, as the principal, personally initiated, concluded,
or participated in each transaction. The government's response is,
essentially, that the evidence at trial allowed the jury to
conclude that Ayala was the boss or leader of the entire DTO, that
Ayala imposed a structure on the drug sellers to collect money
11 We note that there was only a single undercover purchase of marijuana which, standing alone, would not have constituted sufficient evidence to allow the jury to make a determination as to marijuana quantity. See United States v. Rivera-Maldonado, 194 F.3d 224 , 232 (1st Cir. 1999). It does, though, serve as a "sample" for the jury's consideration with respect to the average weight of the 953 bags that had been seized. And, in any event, the evidence showed that those 953 bags had an average weight of 1.5 grams each. Combining this average weight with witness testimony that there were daily sales of between 10 and 15 packets of marijuana--each containing 25 smaller bags of marijuana-- provides more than enough support for the drug quantity found by the jury.
throughout the year to finance the annual Christmas parties, that
Ayala directed the purchase of race cars and other luxury vehicles
(so-called "daily-drivers") through "straw buyers" who owned those
vehicles in name only, and that drug money was used to pay for all
of Ayala's vehicles, both the race cars and daily-drivers.12
Ayala's challenge to the sufficiency of the evidence on
these Counts is without merit. By basing his argument on the lack
of evidence of his direct involvement in the alleged financial
transactions, Ayala overlooks that each money laundering count
charged him as a participant in a money laundering conspiracy in
violation of 18 U.S.C. § 1956(h). That statute makes it a crime
for anyone to knowingly engage in certain financial transactions
involving the proceeds of unlawful activity. See 18 U.S.C. §
1956(a). The specific section Ayala was charged under, Section
1956(h), declares that "[a]ny person who conspires to commit any
offense defined in this section . . . shall be subject to the same
penalties as those prescribed for the offense the commission of
which was the object of the conspiracy." 18 U.S.C. § 1956(h).
Thus, to secure a conviction the government needed to prove not
that Ayala himself carried out each transaction, but that he was
part of a conspiracy the object of which was to engage in money
12 Ayala's daily-drivers included luxury vehicles manufactured by Acura, BMW, Mercedes, and Lamborghini.
The crime of money laundering comes in two varieties,
"promotional" and "concealment." United States v. Cedeño-Perez,
579 F.3d 54 , 57 (1st Cir. 2009). An individual is guilty of
promotional money laundering if "(1) 'knowing that the property
involved in a financial transaction represents the proceeds of some
form of unlawful activity,' he (2) 'conducts or attempts to conduct
such a financial transaction which in fact involves the proceeds of
specified unlawful activity,' (3) 'with the intent to promote the
carrying on of specified unlawful activity.'" Id. (quoting 18
U.S.C. § 1956(a)(1)(A)(i)). The second variety, concealment,
differs only with respect to the third element. To convict an
individual of concealment money laundering, the government must
prove the first two elements of promotional money laundering and,
third, that "the person conducts the financial transaction 'knowing
that the transaction is designed in whole or in part . . . to
conceal or disguise the nature, the location, the source, the
ownership, or the control of the proceeds of specified unlawful
activity.'" Id. (quoting 18 U.S.C. § 1956(a)(1)(B)(i)).13
To convict Ayala of conspiracy to commit money
laundering, the government was required to introduce evidence
showing that Ayala had entered into an agreement with one or more
co-conspirators to commit either promotional or concealment money
13 Ayala does not contend on appeal that the transactions alleged in the Indictment are not "financial transactions" or that the DTO did not engage in "specified unlawful activity" within the meaning of 18 U.S.C. § 1956.
laundering. See United States v. Misla-Aldarondo, 478 F.3d 52 , 68
(1st Cir. 2007). An agreement to enter into a conspiracy may be
tacit or express. United States v. Josleyn, 99 F.3d 1182 , 1190
(1st Cir. 1996). A conspiracy conviction requires proof that "the
defendant voluntarily participated to promote a criminal
objective." Id. We have also held that "[a] particular defendant
need not have been familiar with all the details of the conspiracy
or with the identities of all other conspirators" in order to be
guilty of the conspiracy offense. Id.
Count VII alleged that Ayala was part of a money
laundering conspiracy that "utilized narcotics proceeds in order to
organize, host and finance annual Christmas parties at . . .
Barbosa" from 2004 through 2008. The government introduced
evidence at trial showing not only that Ayala was the unquestioned
"boss" of Barbosa, but that he himself put in place a procedure to
fund the Christmas parties by requiring sellers to contribute drug
proceeds throughout the year. There was also testimony showing
that Ayala personally "hosted" the parties, and that he went up on
stage with the performers hired through use of drug proceeds.
Moreover, the evidence showed that technicians working to
put on the Christmas parties received their payment from one of
Ayala's henchmen. See United States v. Martinez-Medina, 279 F.3d
105 , 116 (1st Cir. 2002) ("Purchasing large items with drug money
through third parties surely supports an inference of intent to
conceal."). When Ayala's men paid the technicians, the payment was
generally placed in plastic or paper bags. See Cedeno-Perez, 579
F.3d at 61 (finding that such packaging demonstrates an intent to
conceal). Also relevant is the form of payment itself: usually,
the technicians were paid in small bills. See United States v.
Hall, 434 F.3d 42 , 52 (1st Cir. 2006) (citing United States v.
Misher, 99 F.3d 664 , 668-69 (5th Cir. 1996) (recognizing that using
small bills "made it more difficult for anyone to trace the . . .
payment" and allows the jury to conclude that a purpose of the
transaction is to conceal the source of the funds)).
Under these circumstances, the jury had enough evidence
to conclude, at a bare minimum, that Ayala knowingly participated
in a conspiracy to conduct financial transactions using drug money
with the intent either to promote the DTO's continued success (by
maintaining good relations with Barbosa's residents) or to conceal
the nature and source of the proceeds used to fund those parties.
More than that though, because there was evidence that Ayala
established procedures to fund these parties, the jury would also
have been warranted in convicting him on a theory of his direct
participation in money laundering. Accordingly, we affirm his
conviction on Count VII.
Count VIII and Count IX both alleged Ayala participated
in a conspiracy to commit money laundering through the acquisition
of various vehicles. Count VIII rested on the purchase of a race
car, trailer, and truck, while Count IX was predicated upon the
purchase of various luxury cars that Ayala used as daily-drivers.
Once again, ample evidence at trial supported his convictions on
Beginning with the race vehicles, testimony at trial
indicated that Ayala had been involved in the purchases of a
$144,000 race car named Major League, a $45,000 trailer, and a
$70,000 truck to haul the race car and trailer. There was also
evidence that the truck and the trailer were registered to Humberto
Cruz-Ortiz, a drug seller in Ayala's DTO. Although the vehicles
may have been registered to someone else, witnesses testified at
trial that Ayala owned two race cars, Major League and La Adriana,
that he used the truck and trailer to transport his race cars, and
that they had actually seen Ayala racing Major League. This
eyewitness testimony was supported by documents Ayala signed in
2006 before racing Major League stating that he was responsible for
the race car. Based on this evidence, the jury could have
reasonably concluded Ayala used a "straw purchaser" to buy and
register these vehicles in order to conceal the fact that they were
bought and paid for with drug money.
The government also introduced sufficient evidence to
secure a money laundering conviction with respect to Ayala's daily-
drivers. One witness testified that Ayala acquired these vehicles
without anyone knowing they were his by having someone else fill
out the paperwork for the purchase and subsequent registration.
Ayala, though not the registered owner, made the monthly payments
on these vehicles, and the "straw purchaser" received payment for
his participation in filling out the paperwork. There was also
testimony that many of the payments for Ayala's luxury vehicles
were made in cash that "came from drug trafficking." Ayala himself
stipulated that 29 out of 30 payments for a $68,000 Acura MDX were
in the form of cash. He further stipulated that an FBI agent
observed him driving that vehicle in May of 2009. Accordingly,
just as there was evidence showing that Ayala had created a system
for laundering money through annual Christmas parties, there was
evidence that he masterminded a similar scheme for the purchase of
his daily-drivers. As such, we affirm the jury's verdict with
respect to Count IX.
II. CRUZ'S CHALLENGE TO THE SUFFICIENCY OF THE EVIDENCE
Like Ayala, Cruz argues that insufficient evidence was
introduced at trial to allow the jury to return a guilty verdict
with respect to Count VII. Recall that Count VII alleged he (like
his brother) was guilty of entering into a conspiracy to launder
money by putting on annual Christmas parties at Barbosa. Cruz,
however, does not raise a sufficiency of the evidence challenge to
any of the other counts of which he was convicted.
The record here shows that at the close of the evidence,
Cruz moved for a judgment of acquittal pursuant to Rule 29 with
respect to Count VII. In making his motion, Cruz argued that he
was entitled to an acquittal based on the lack of evidence that
Cruz conducted any financial transactions related to or was
involved in the financing of any of the annual Christmas parties.
The trial judge, however, denied the motion based on evidence that
Cruz "was the administrator of the drug points there while his
brother or Mr. Omar was not present," that Cruz gave orders to
others involved in the conspiracy, and that he was responsible for
things such as making sure there were drugs at the various drug
points and keeping addicts from milling around the drug points.
Because Cruz, unlike his brother, did challenge the
sufficiency of the evidence at trial, this issue has been preserved
for appellate review. Preserved challenges "to the sufficiency of
the record evidence are reviewed de novo." United States v. Ossai,
485 F.3d 25 , 30 (1st Cir. 2007). Under this standard, we affirm
the jury's verdict "unless the evidence is insufficient to permit
the jury rationally to find, beyond a reasonable doubt, each
essential element of the charged offense." Id. We have already
set forth the elements of conspiracy to commit money laundering in
our discussion of Ayala's challenges to his convictions, and we
will not repeat ourselves here.
Cruz's argument on appeal with respect to Count VII
varies little from what he presented at trial. Notably, he admits
here that the trial evidence showed he "was a member of the
conspiracy to possess and distribute drugs at the Barbosa-Sierra
Linda Housing Projects charged in count one." He goes on to
assert, however, that there was no evidence "linking him to the
conspiracy to launder those specific funds" used towards putting on
the Christmas parties. Cruz then argues, without citation to
authority, that his membership in the drug conspiracy "did not have
the effect of converting him into a co-conspirator of the money
laundering conspiracy," and that any "potential inference that he
may have known that the Barbosa Christmas parties were being paid
with drug profits of [Ayala] was insufficient to establish he
intended to be a participant or member of the money laundering
conspiracy." In sum, he claims that a conviction requires proof of
his intent to specifically join in the money laundering conspiracy.
The government argues the evidence showed Cruz was
personally involved in activities that produced the proceeds used
to fund the parties. According to the government, the evidence at
trial showed that Cruz began working for his brother's DTO no later
than 2003, and that he took on multiple roles, including those of
administrator, runner, and occasional drug seller. According to
the government, Cruz's position within the conspiracy--including
his oversight of the drug point's daily operations--
"circumstantially showed Cruz's participation in the money
After careful consideration of the evidence adduced at
trial, we conclude the evidence sufficed to allow the jury to
conclude, beyond a reasonable doubt, that Cruz was a member of the
money laundering conspiracy. First, we note Cruz concedes that he
was a member of the overall drug conspiracy. Further, the evidence
at trial allowed the jury to conclude not only that Cruz was a part
of the conspiracy, but that he had taken on a managerial role and
was deeply involved in the DTO. Based on his deep and long-term
involvement with the conspiracy, the jury was permitted to infer
that Cruz had knowledge that drug money was being used to finance
the yearly high-profile Christmas parties14 with the intent of
concealing the drug proceeds and/or promoting the object of the
overall conspiracy. See United States v. Martinez-Medina, 279 F.3d
105 , 116 (1st Cir. 2002) (finding that the jury was permitted to
find beyond a reasonable doubt that a defendant who had "deep
involvement" in a drug conspiracy knew that certain air
conditioners were being purchased to conceal drug money).
Even if this were not enough, the jury also had evidence
showing that Cruz was much more directly involved in helping to
fund the Christmas parties than he lets on. As the overall leader
14 The testimony of Jose Miguel Marrero Martel, an admitted member and leader of another drug-trafficking organization that imported drugs into Puerto Rico and sold them to Ayala's DTO (among others), is helpful to get an idea of the size of these parties. Martel testified the 2006 party had a designated parking area, private security guards, and a VIP section with campers, a tent, chairs, tables, and free food and drinks for the DTO's "drug traffickers." The VIPs were able to see the stage from the side so they "did not have to be up front where everybody was." It was from this area that Ayala himself watched the goings-on, at least when he was not dancing on stage. The Christmas parties featured well-known performers, including Daddy Yankee, Wisin and Yandel, and Alexis and Fido who all appeared in 2007. The following year, Elvis Crespo was paid $12,000 for his performance there. According to Crespo's promoter, all $12,000 was paid in twenty-dollar bills contained in a small paper bag. As of the date of publication, a video clip purporting to depict a portion of Elvis Crespo's Barbosa performance is available at http://www.youtube.com/watch?v=3NX0g1h7LHc.
of the DTO, Ayala had set up a system for collecting funds
throughout the year by having members of the organization--
including drug point owners, runners, and sellers--work for "free"
at certain times. The money the sellers earned on these days was
then picked up from Barbosa and set aside to pay for the annual
party. The testimony at trial showed that Cruz was intimately
involved with the drug trade, as he worked in various capacities
over the years, including as a runner and seller. In fact, the
evidence supported a finding that he was in charge of the day-to-
day operations of the Barbosa drug points.
From this evidence, the jury could have concluded, beyond
a reasonable doubt, that Cruz directly participated in the money
laundering scheme by either contributing money to it directly
during the times he worked as a runner or seller, and/or by
overseeing the collection of funds from other members as part of
his control of daily operations at Barbosa or as a fill-in boss
during Ayala's absences. The jury could also have concluded,
beyond a reasonable doubt, that Cruz knew the Christmas parties
were paid for out of drug money and that their intent was to
conceal the source, ownership, and control of those proceeds, as
well as to promote the interests of the drug organization as a
whole. Accordingly, we affirm Cruz's conviction on Count VII.
III. COMMENTS MADE BY THE DISTRICT JUDGE
a. Cruz's Adoption of Ayala's arguments
Before getting to the substance of the appellants'
objections to the trial judge's participation at trial, we must
first turn our attention to a preliminary matter. Only Ayala fully
sets forth an argument that the trial judge's comments deprived him
of a fair trial. Cruz seeks to adopt Ayala's position as his own
because the claimed errors are "of equal application to [Cruz] and
warrant the granting of a new trial due to the district court
openly assisting the government during trial." The government,
however, posits that Cruz has not successfully adopted Ayala's
argument since he has not made any showing of how it is applicable
or pertains to him. According to the government, we should
conclude that Cruz has waived this ground of appeal.15
It is true that, typically, "issues adverted to in a
perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived." United States v. Zannino, 895
F.2d 1 , 17 (1st Cir. 1990). However, "in a case involving more
than one appellant or appellee, including consolidated cases, any
number of appellants or appellees may join in a brief, and any
party may adopt by reference a part of another's brief." Fed. R.
App. P. 28(i). In order for one party to successfully adopt
15 Cruz did not opt to file a reply brief or address this argument at oral argument.
another's argument by reference, "the arguments adopted must be
readily transferable from the proponent's case to the adopter's
case." United States v. David, 940 F.2d 722 , 737 (1st Cir. 1991).
Here, Cruz and Ayala were tried together, and the
government attempted to prove both of them guilty of crimes arising
out of the same alleged drug conspiracy. Ayala claims he is
entitled to a new trial because the district judge, through his
comments and questioning of witnesses (at least one of whom
testified against both appellants), took on the role of an
additional prosecutor and added to the evidence against him. His
argument goes to the fairness of the trial itself, as he believes
the judge's actions tainted the entire proceeding. Given the
nature of this particular claim, Ayala's same fair trial arguments
are readily transferable to Cruz's case, without the need for
further explanation or development. Moreover, because Cruz stood
trial along with his brother, if Ayala were to show that the judge
deprived him of a fair trial, it would arguably follow that his
comments and questions deprived Cruz of a fair trial as well.
Accordingly, the interests of justice cut in favor of our finding
that Cruz has adopted Ayala's fair trial arguments. See United
States v. Castro-Davis, 612 F.3d 53 , 69 n.16 (1st Cir. 2010)
(considering the "interests of justice" when determining whether
one party adopted another's argument by reference). While Cruz's
perfunctory statement may not suffice in every case to adopt
another party's arguments, we do not hesitate to conclude that it
was up to the task here in light of the obvious applicability of
Ayala's arguments to Cruz's appeal.
b. Setting the Stage and Framing the Issues on Appeal
We move on to the substantive aspects of the fair trial
arguments. The appellants claim the trial judge deprived them of
their right to a fair trial guaranteed by the Fifth Amendment
through certain comments he made during trial. Their objection
centers around the trial judge letting the jury know that certain
individuals referred to in trial testimony had been named in the
Indictment, even though neither the witness nor prosecutor tied
that individual by name to the Indictment. The appellants point to
twenty-three separate comments made by the trial judge during four
days of trial from March 29 through April 4. Although they set out
citations to the record as to each of these twenty-three occasions,
the appellants do not make any individualized argument with respect
to any specific comment.16
16 In his brief, Ayala makes a cursory allegation that the trial judge "also countered defense counsel's questions in a manner favorable to the prosecution." Not only is this sort of bald-faced assertion insufficient to raise the issue on appeal, "[a]s a general rule, a judge's mid- trial remarks critical of counsel are insufficient to sustain a claim of judicial bias or partiality against the client." Logue v. Dore, 103 F.3d 1040 , 1046 (1st Cir. 1997). Further, our review of the extensive transcripts reveals that the judge corrected the prosecutor on multiple occasions as well. Indeed, one of the appellant's twenty-three citations to the record actually refers to an occasion on which the trial judge corrected the prosecutor, not defense counsel. The only other of the twenty-three cited occasions that could even plausibly be considered a "counter" to defense counsel's questions is an admonishment not to continue a line of questioning relating to the government's attempt to obtain
In rejoinder, the government argues that the trial judge
acted at all times in accordance with his power to question
witnesses and comment on the testimony. Most of those occasions,
says the government, are in reality simply examples of the trial
judge stepping in to clarify confusing testimony or to correct
misstatements by both the prosecutor and defense counsel. The
government goes on to urge us to find harmless any error, noting
that the trial judge provided appropriate curative instructions and
that, in its view, the evidence against both appellants was
overwhelming anyways. Accordingly, the government believes the
judge's conduct does not merit reversal.
We have reviewed each of the twenty-three cited sections
of trial testimony. Four of them have nothing whatsoever to do
with the appellants' arguments: on one occasion, the judge
instructed defense counsel not to inquire further into topics
related only to forfeiture of assets, and then a short time later
corrected a misstatement made by the prosecutor. On a different
date, the judge asked a witness about the source of certain monthly
payments she had been receiving. Finally, and on yet another date,
forfeiture of approximately $100,000 the witness had on hand when he was arrested. The record reveals that far from favoring the prosecution, the trial judge informed defense counsel that the forfeiture proceedings had not been completed, and cut off any further questioning in this regard. We are at a loss to imagine how this brief exchange could have prejudiced the appellants. We have now given more attention to this issue than have the appellants. It merits none further.
the trial judge asked a witness about how certain drugs were
"branded" by their packaging.
The remaining nineteen occasions, however, involved the
judge's questioning of a witness and identification of other
individuals named on the Indictment. These occasions all followed
a similar format. We set forth two such examples to demonstrate
the general tenor of what went on.
March 30, 2011--the fifth day of trial--opened with the
prosecutor resuming his questioning of Miguel Antonio Montes
Nieves, who had taken the stand the previous day. At the outset of
his testimony, Montes Nieves stated he was currently incarcerated
following his guilty plea to charges lodged in 2007 of importing
"kilos of cocaine" into Orlando, Florida from Puerto Rico. Up
until his arrest, he was a member of Ayala's DTO, and he began
selling drugs with Ayala and Steven at Barbosa in 1993 or 1994.17
Per Montes Nieves's testimony, Ayala took over Steven's drug point
after Steven was killed.
During his testimony Montes Nieves mentioned numerous
individuals involved with the DTO, including his brother, who he
first identified as "Miguel Angel Montes." The appellants bring
the following exchange to our attention:
Q. So for how long did your brother work the drug point after you got indicted?
17 As he had already been convicted for his role in the DTO, Montes Nieves was not a defendant on the Indictment.
A. Well, until the day he was arrested.
Q. And do you have a time frame for that?
A. When he was arrested in the indictment with Angelo [Ayala].
The Court: You say your brother's name is Miguel Angel Montes Nieves?
The Witness: Yes.
The Court: "Ito."
The Witness: Yes.
The Court: No. 25 of the indictment.
Defense counsel did not object to the trial judge's questioning.
The twenty-fifth defendant listed on the Indictment is "Miguel
Angel Montes Nieves, 'Ito.'"
Later that day, Montes Nieves testified about a meeting
Ayala had called because "there were so many heroin drug points,
you know, and a lot of people were being arrested." The purpose of
the meeting was to consolidate the drug points: Ayala wanted "to
get the heroin drug points and make it one ten-dollar heroin drug
point and one three-dollar heroin drug point." Montes Nieves
testified that the following understandings came out of the
Q. And what else was agreed at that meeting?
A. Well, that there was only going to be one ten-dollar heroin--
The Interpreter: No, I'm sorry. The interpreter is going to correct herself. "That there was only going to be one ten- dollar cocaine."
The Witness: That was [Ayala's]. A five- dollar cocaine, which was [Ayala's]; crack, which was [Ayala's]; and then the heroin, well, Omar "El Gordo." "Nino Brown" remained in charge of the heroin drug point per se. You know, they are the ones in charge of getting the drug, buy the drug, give it to my brother, who was in charge of the table, and after the table, seven days a week, each one of the owners of the drug point--because there were so many--the ones that I can mention now are "Raymond," "Chequito," "Popo," Los Olivo-- that is, Rosa, "Ñaña"-- Delvin.
Those are the ones that I remember right now.
Q. What would happen--
The Court: Wait a minute. "Checo" is Jose Rosario Oquendo?
The Witness: Yes.
The Court: No. 11 in the indictment.18 "Raymond" is Ramon Rosario Oquendo?"
The Witness: Yes.19
The Court: Are they brothers?
The Witness: Yes.
The Court: "Popo" is Pedro Juan Diaz.20
The Witness: I don't know his name. I know him by "Popo."
18 The eleventh defendant is identified on the Indictment as "Jose R. Rosario Oquendo, aka 'Checo.'" None of the sixty-five individuals is identified by the alias, "Chequito." 19 Defendant number 13 is "Ramon J. Rosario Oquendo, aka 'Raymond.'" 20 Defendant number 15 on the Indictment is "Pedro Juan Diaz, aka 'Popo.'"
The Court: All right. And who were the girls?
The Witness: Los Olivo.
The Court: Is that Maribel Olivo Rivera?21
The Witness: No, but they are family.
The Court: Angel Soto Olivo?22
The Witness: No.
The Court: All right. Go ahead.
The prosecutor then resumed the examination, again with no
objection from defense counsel.
Save one other interaction we will momentarily describe,
this testimony captures the essence of the challenged judicial
conduct. Regardless of whether a witness was testifying on direct
or cross-examination, if he or she mentioned the nickname of an
individual thought to be listed in the Indictment, the trial judge
broke in and asked the witness whether he or she knew more than the
nickname. Sometimes this was done in the form of a question, and
other times by way of an affirmative statement calling for the
witness to respond affirmatively or negatively. If the witness
confirmed the individual's name in full or in part, the trial judge
often went on to state which number defendant he or she was on the
Indictment. This happened eighteen times between March 29 and
April 4, all without objection or comment from defense counsel.
21 Defendant number 59 is "Maribel Olivo Rivera." 22 Defendant number 43 is "Angel Olivo Rivera, aka 'Tun Tun.'"
On April 4, the eighth day of trial, and after the
nineteenth such exchange, defense counsel expressed some
displeasure with the trial judge. The triggering interaction
involved the testimony of Jose Arce Baez, a drug seller in the DTO.
Baez stated on direct examination that he had "exchanged the empty
bag [of drugs] for a full one, from 'Martillo.'" The prosecutor
followed-up by asking if Martillo was a seller too, and Baez
responded "'Martillo' is a seller and he is arrested as well." The
judge then chimed in asking, "Is it Jayson Serrano Andino?" Baez
replied, "I know him as 'Martillo.' I know that his name is
Jayson, but I do not know his last name." The judge then stated
"thirty-one," referring to defendant number 31, "Jayson Serrano
Andino, aka 'Martillo.'" At this point, Ayala's counsel spoke up
and, with the trial judge's permission, "reserve[d] a motion."
After the jury left for the day, Ayala's counsel made an
oral motion "along the lines of the previously made motion."23
Counsel first pointed out that "there has been a pattern and
practice of the Court that when a witness identifies somebody by a
nickname and then a question is asked about what his real name is,
23 The "previously made motion" was Ayala's March 31st mistrial motion predicated upon a comment made by the trial judge. In making his April 4th motion, counsel did not explicitly request a mistrial. Ayala tells us, though, that by referencing his previous motion he intended to request a mistrial on April 4th. The government does not dispute Ayala's characterization of the motion. Accordingly, we presume the parties (as well as the trial judge) understood the April 4th motion as one requesting a mistrial, and we too shall assume Ayala sufficiently preserved a mistrial motion.
then there is a comment [from the trial judge] about he is No. X in
the indictment that is being tried." Counsel told the trial judge
that he believed the judge's comments improperly added to the
witness's testimony. Specifically, by telling the jury that
"Martillo" was named in the Indictment even though the witness who
mentioned him did not know "Martillo's" full name, the trial judge,
according to counsel, added to the evidence against the appellants.
In response, the trial judge stated that his comments
were made in order to let the jury know when a witness was
referring to one of "the defendants that are in the indictment."
He then noted that when he read the Indictment to the jury before
trial began, he did not read the defendants' nicknames or aliases.
Thus, the trial judge explained that he was eliciting further
information from witnesses and then telling the jury when certain
individuals were named on the Indictment so the jury would know
when a witness was talking about an alleged DTO member. The trial
judge indicated he would stop doing this if defense counsel would
agree "to give the indictment to the jury so they can look up the
Defense counsel declined the offer. Instead, he asked
the judge to instruct the jury that "only Mr. Ayala" was on trial,
not anyone else named on the Indictment.24 He also asked the trial
judge to tell the jury that, in questioning witnesses, he was "not
24 The trial judge pointed out that Cruz was being tried too.
commenting on the facts of the case." The trial judge did not go
along with this proposal, and made a counter-offer instead. The
judge stated he would give an instruction to the effect that none
of the other individuals listed in the Indictment were on trial,
and that "they are only to decide the case of Mr. Ayala and Mr.
Cruz Vazquez." Maintaining he was "not commenting on any facts of
the case," the trial judge refused to give any other instruction.
Thus, although not stated explicitly on the record, by the end of
the colloquy the trial judge had quite obviously refused to declare
a mistrial. On appeal, Ayala argues the trial judge erred in
refusing to grant his motion for a mistrial.
c. Standard of Review
A trial judge's denial of a motion for a mistrial is
reviewed for abuse of discretion. United States v. Gentles, 619
F.3d 75 , 81 (1st Cir. 2010). Ayala based his motion on the trial
judge's questioning of various witnesses and his occasional
comments informing the jury that certain individuals had been named
on the Indictment along with Ayala and Cruz.25 In his view, far
from being innocuous, these comments deprived him of a fair trial
25 Although Ayala seeks to have us review each of the comments mentioned in his brief, he failed to object to any of the first eighteen at trial. Moreover, neither he nor Cruz develop any argument on appeal with respect to the effect of each individual comment. The appellants have forfeited any argument based on those specific comments. United States v. Zannino, 895 F.2d 1 , 17 (1st Cir. 1990). Accordingly, we review only the denial of the motion for a mistrial, taking into account, however, the aggregate effect of the judge's comments. See United States v. Polito, 856 F.2d 414 , 418 (1st Cir. 1998).
because they actually constituted "crafty herding of the jury to
the Government's side of this controversy." When a party claims a
trial judge's actions deprived him of a fair trial, we review the
objected-to behavior for abuse of discretion, the same standard
applied to our review of the trial judge's denial of the motion for
a mistrial. United States v. Mulinelli-Navas, 111 F.3d 983 , 990
(1st Cir. 1997); Walsh v. United States, 371 F.2d 436 , 437-38 (1st
Cir. 1967).26 Our inquiry takes into account the record as whole.
United States v. Polito, 856 F.2d 414 , 418 (1st Cir. 1998) (noting
that, when a defendant claims he has been prejudiced through a
trial judge's interventions at trial, "[c]harges of partiality
should be judged not on an isolated comment or two, but on the
record as a whole").
"It cannot be gainsaid that [a] fair trial in a fair
tribunal is a basic requirement of due process. Accordingly, a
trial judge should be fair and impartial in his or her comments
during a jury trial." United States v. de la Cruz-Paulino, 61 F.3d
986 , 997 (1st Cir. 1995) (internal citations and quotation marks
omitted). Yet, "mere active participation by the judge does not
create prejudice nor deprive the party of a fair trial." Deary v.
26 Ayala urges us to review the district judge's conduct "as a question of law," by which we presume he is seeking de novo review. However, the case he cites for this request, Glasser v. United States, 315 U.S. 60 , 82-83 (1942), lends him no support whatsoever, as the Court applied an abuse of discretion standard in the cited passage.
City of Gloucester, 9 F.3d 191 , 194 (1st Cir. 1993); see also
Aggarwal v. Ponce School of Medicine, 837 F.2d 17 , 22 (1st Cir.
1988). A judge's permissible participation includes the "common
law power to question witnesses and to analyze, dissect, explain,
summarize, and comment on the evidence." Logue v. Dore, 103 F.3d
1040 , 1045 (1st Cir. 1997). What a trial judge may not do,
however, is take on the role of an advocate or "otherwise use his
judicial powers to advantage or disadvantage a party unfairly."
Id. In that vein, there is no question that it is "improper for a
judge to assume the role of a witness" by testifying to facts or
authenticating evidence. Glasser v. United States, 315 U.S. 60 , 82
When addressing allegations of judicial bias, we consider
"whether the comments were improper and, if so, whether the
complaining party can show serious prejudice." United States v.
DeCologero, 530 F.3d 36 , 56 (1st Cir. 2008). Moreover, our review
focuses on the entire record, "not an isolated comment or two."
Polito, 856 F.2d at 418. And even an imperfect trial is not
necessarily an unfair trial. United States v. Espinal-Almeida, 699
F.3d 588 , 608 (1st Cir. 2012), cert. denied, 133 S. Ct. 1837
(2013), and cert. denied, 133 S. Ct. 2782 (2013).
As a general matter, there is nothing inherently improper
about a judge posing questions at trial. The Federal Rules of
Evidence explicitly vest a trial judge with authority to examine
witnesses. Fed. R. Ev. 614(b) ("The court may examine a witness
regardless of who calls the witness."). We have also recognized
that a "judge has wide discretion to interject questions in order
to throw light upon testimony or expedite the pace of a trial."
Logue, 103 F.3d at 1045; see also United States v. Santana-Pérez,
619 F.3d 117 , 124 (1st Cir. 2010) ("Among other things, the court
has 'the prerogative, and at times the duty, of eliciting facts he
deems necessary to the clear presentation of issues.'") (quoting
United States v. Paz Uribe, 891 F.2d 396 , 400 (1st Cir. 1989))
(further citation omitted). Thus, the trial judge's questions
here, geared towards eliciting identifications of individuals
mentioned by witnesses on the stand, were not necessarily improper
in and of themselves.
But Ayala's appeal is not premised solely on the judge's
questions. According to Ayala, the judge crossed the line into the
realm of advocacy when he informed witnesses that certain
individuals had been indicted along with the appellants. As
discussed above, the record shows that throughout the trial when a
witness confirmed a particular individual had been indicted along
with Cruz and Ayala, the trial judge stated what number defendant
the individual was on the Indictment. For instance, in one of our
testimonial examples above, when witness Miguel Antonio Montes
Nieves mentioned his brother, Miguel Angel Montes Nieves, and
answered affirmatively to the judge's statement that he was known
as "Ito," the trial judge simply put on the record that this
individual was "No. 25 on the indictment."27
Because Ayala is unable to show prejudice, we need not,
it turns out, determine whether the trial judge acted improperly in
this case: even if the judge erred, we must affirm if we conclude
that any such error was harmless. See United States v. Paiva, 892
F.2d 148 , 159 (1st Cir. 1989) (applying harmless error analysis
where the judge erred by "adding to the evidence").28 After
reviewing the entire record, which we do "to avoid magnifying on
appeal incidents that were of little importance or significance at
trial," we are satisfied that any error "had no substantial effect
on the verdict." United States v. Jacquillon, 469 F.2d 380 , 387-88
(5th Cir. 1972); see also United States v. Rodriguez-Rivera, 473
F.3d 21 , 27 (1st Cir. 2007) ("We must consider alleged examples of
27 Although the judge did not read the forfeiture allegations to the jury panel, his reading of the earlier portions of the Indictment was nearly verbatim. The only significant difference is that the trial judge, for unknown reasons, did not read each of the nicknames or aliases. It is the common practice of the district courts to read a criminal indictment in full at jury selection. Indeed, there are many reasons why this should be so, but the one that stands out here is the unquestioned importance of determining whether any prospective juror knows a defendant by a nickname or alias. In light of the multitude of defendants and nicknames in this case, we are at a loss to explain why--especially in the apparent absence of any objection--the trial judge read substantially all of the forty- five-plus pages of the Indictment setting forth the charges against Ayala and Cruz, but elected not to read the nicknames and/or aliases. 28 Indeed, even Ayala concedes that harmless error analysis applies.
judicial bias 'in light of the entire transcript so as to guard
against magnification on appeal of instances which were of little
importance in their setting.'") (quoting United States v.
Candelaria-Silva, 166 F.3d 19 , 35 (1st Cir. 1999)).
The relative infrequency of the complained-of comments--
which were made on only four of the eighteen days of trial--cuts
against a finding of prejudice. The complete lack of any objection
from defense counsel until the nineteenth such comment further
militates against a finding of reversible error. This is
especially so because the absence of an objection deprived the
trial judge of an earlier opportunity to fully evaluate the effect
of his questioning and comments upon the jury.
Furthermore, the judge instructed the jury on more than
one occasion that his comments were not evidence and that it was up
to the jury alone to find the facts. Indeed, one such instruction
was given in the middle of trial on April 1, after Ayala's first
motion for a mistrial, which was based on another allegedly
improvident comment by the judge about a witness's testimony.29 The
judge's curative instruction included the following language:
So you, the jury, are the sole judges of the facts and the credibility of the witnesses. Comments by me-- comments by the Court or counsel are not to be considered as evidence or as an indication of how to view that evidence-- how to view a particular testimony or piece of evidence or weight and value to be
29 A challenge to this comment is not raised on appeal.
given to that evidence. This is your duty as jurors.
Notably, the nineteen occasions on which the judge
questioned and/or identified witnesses of which Ayala complains
occurred between March 29 and April 4. This means the jury was
told in the midst of the objected-to conduct that the judge's
comments are not evidence and that the jury is the sole finder of
facts. Given the timing of this instruction vis-à-vis the trial
judge's questions and comments, we keep in mind that "[w]here 'a
curative instruction is promptly given, a mistrial is warranted
only in rare circumstances implying extreme prejudice,'" United
States v. Freeman, 208 F.3d 332 , 339 (1st Cir. 2000) (quoting
United States v. Torres, 162 F.3d 6 , 12 (1st Cir. 1998)), and we
presume that the jury followed this instruction, Gentles, 619 F.3d
The judge's final jury instructions are also relevant to
our prejudice inquiry. At the very beginning of the charge, the
judge reminded the jurors of the respective roles of the judge and
jury: "It is your duty to find the facts from all the evidence
admitted in this case. . . . The determination of the law is my
duty as the presiding Judge in this court." He went on, telling
the jury it "must not read into these instructions or into anything
I may have said or done, any suggestion by me as to what the [sic]
verdict you should return." The judge also addressed the fact that
some witnesses had pleaded guilty in connection with their own
roles in the DTO: "You may also consider their guilty pleas in
assessing their credibility, but you are not to consider their
guilty pleas as evidence against any defendant in this case."30
A little later, the judge addressed his questioning of
In the course of a trial, I occasionally ask questions of a witness. Do not assume that I hold any opinion on the matters to which my questions may relate.
The Court may ask questions simply to clarify a matter, not to help one side of the case or hurt another side. Remember at all times that you, as jurors, are at liberty to disregard all comments of the Court in arriving at your own findings as to the facts.
The judge reminded the jury of their role a third and final time
towards the end of the charge: "Your verdict must be based solely
on the evidence and the law as I have given it to you in these
instructions. However, nothing that I have said or done is
intended to suggest what your verdict should be. That is entirely
for you to decide."
We have long recognized in this Circuit that "'within
wide margins, the potential for prejudice stemming from improper
testimony or comments can be satisfactorily dispelled by
appropriate curative instructions.'" United States v. Pagán-
Ferrer, 736 F.3d 573 , 587 (1st Cir. 2013) (quoting United States v.
Sepulveda, 15 F.3d 1161 , 1184 (1st Cir. 1993)). This is so even
30 Neither Ayala nor Cruz, we note, contests the existence of the DTO.
where the curative instruction is contained within the final charge
and not given "immediately following the remark." Gentles, 619
F.3d at 83. And, as we did in Gentles, we note here that the jury
was "amply admonished" during trial that the judge's comments were
not evidence and that the members of the jury are the only finders
of fact. See id. (quoting United States v. de Leon Davis, 914 F.2d
340 , 345 (1st Cir. 1990)). The judge's instructions given during
and at the end of trial further cut against a finding of prejudice.
Finally, and perhaps most importantly, we have already
determined that the evidence at trial was sufficient for the jury
to return guilty verdicts against Ayala and Cruz. In fact,
however, the evidence of guilt was overwhelming. Neither Ayala nor
Cruz dispute that a DTO operated out of Barbosa. Cruz even admits
he was part of the DTO, while Ayala concedes on appeal that he
possessed and distributed drugs within Puerto Rico.
To illustrate the overwhelming nature of the evidence
against them, we reiterate and encapsulate what we previously
discussed in the context of the appellants' challenges to the
sufficiency of the evidence. At trial, numerous witnesses that had
been involved with the DTO testified to Ayala's leadership of it
and Cruz's prominent role at Barbosa. The witnesses testified in
great detail about the types and amounts of drugs brought into
Puerto Rico and distributed at Barbosa, as well as exactly how
large quantities of drugs were shipped from Puerto Rico to the
mainland. Other members of the DTO described the particulars as to
how drugs were sold at Barbosa, the measures taken to protect the
DTO's sellers from arrest, and the procedures Ayala and Cruz
implemented and enforced to minimize unwanted attention from the
police and to warn drug sellers when police officers came into
Barbosa. There was a significant amount of testimony and
documentary evidence regarding Ayala's and Cruz's efforts to
launder vast amounts of drug money through the purchase of race
cars and luxury vehicles, and by putting on elaborate, high-profile
annual Christmas parties for the Barbosa residents.
Overall, we conclude that the appellants are unable to
show they suffered prejudice as a result of the judge's involvement
at trial in light of the lack of objection to the first eighteen
comments, the curative and final instructions given to the jury,
and the sheer volume of evidence (including witness testimony and
videotapes) introduced against Ayala and Cruz. We are satisfied
that "there is no chance that the remarks made prejudiced the
outcome" of the trial. Gentles, 619 F.3d at 83. Accordingly,
neither Ayala nor Cruz suffered "serious prejudice" as a result of
the trial judge's comments, and neither is entitled to a new
31 We take a moment to address Ayala's request that we utilize our "supervisory power to reverse [his] conviction" because this particular trial judge "has been given a pass for his behavior several times" and has "finally crossed the line" here. While Ayala throws around the term "supervisory power," he does not cite any authority for what this power supposedly is and how it may appropriately be exercised here. Accordingly, any such argument has been waived. Zannino, 895 F.2d at 17.
Due to the lack of prejudice here, we conclude that any
error in the judge's questioning and comments was harmless beyond
a reasonable doubt. Accordingly, we have no need to determine
whether the trial judge acted improperly. The question may have
been close with regards to the one objected-to comment, and we
think the judge's questions and comments likely made the
prosecutor's job easier by clearly identifying certain individuals
as members of the DTO. The trial judge, in effect, "filled in the
blanks" for the prosecutor, especially with respect to the
objected-to comment after the witness indicated that he did not
know "Martillo's" full name.
Although we recognize that a trial judge may have "at
times the duty of eliciting facts he deems necessary to the clear
presentation of issues," Santana-Perez, 619 F.3d at 124 (internal
quotation mark omitted), no such necessity is apparent on this
We also hasten to point out Ayala's contention that the trial judge has been "given a pass for his behavior several times" is not supported by the two cases he cites in his brief, United States v. Santana-Pérez, 619 F.3d 117 , 124-25 (1st Cir. 2010), and United States v. Ofray-Campos, 534 F.3d 1 , 32-34 (1st Cir. 2008). In Santana-Pérez, we held that even if the judge improperly demonstrated his disbelief of a witness through the form of his questions, the questions appeared to have a legitimate goal and, further, that any error did not satisfy the plain error standard, the only type of review available for the claim in that case. Santana-Pérez, 619 F.3d at 124-25. In Ofray-Campos we concluded the claim of "judicial bias [was] without merit." Ofray-Campos, 534 F.3d at 34. And even if this particular judge had been reversed in either of those two prior cases it would have no impact whatsoever upon our review of this appeal and the outcome here, as we must resolve this appeal on its own merits. Ayala's invocation here of our supposed "supervisory power" over the district courts borders on frivolous.
record. From all indications, the prosecutor appears to have been
well-prepared, competent, and more than capable of examining
witnesses effectively and without creating confusion on the part of
the jury. The better practice here, perhaps, would have been for
the trial judge to have read the complete Indictment (including all
nicknames and/or aliases) at jury selection, to have remained
silent and allowed the prosecutor to bring out whatever additional
identifying information that he felt was necessary to his case, or
to have provided the jury with a copy of the Indictment during
trial so that the jury members could follow along and make the
Before moving on, we take advantage of this opportunity
to remind trial judges in this Circuit that when they do choose to
exercise their power to actively involve themselves at trial, they
must remain constantly vigilant to ensure they do not infringe upon
the province of the jury by commenting or appearing to comment
(positively or negatively) on a witness's credibility. Similarly,
trial judges must guard against adding to the evidence or smoothing
the pathway to a verdict in favor of either side under the guise of
questioning witnesses or commenting on the evidence. In sum, trial
judges must do their utmost to avoid creating the impression that
they are anything other than unbiased neutral arbiters. See Starr
v. United States, 153 U.S. 614 , 626 (1894) ("It is obvious that
under any system of jury trials the influence of the trial judge on
the jury is necessarily and properly of great weight, and that his
lightest word or intimation is received with deference, and may
prove controlling."); see also Glasser, 315 U.S. at 82 (A trial
judge bears "the responsibility of striving for that atmosphere of
perfect impartiality which is so much to be desired in a judicial
proceeding."). While we are well-aware of the many challenges
presented to a district court judge presiding over a long and
contentious trial, these are bedrock principles fundamental to the
administration of justice. We are confident that the judges in
this Circuit are up to the task.
IV. CRUZ'S LIFE SENTENCE
Finally, we reach Cruz's challenge to the life sentence
imposed on him by the trial judge at the sentencing hearing. At
sentencing, the judge applied the Sentencing Guidelines
("Guidelines") and determined that Cruz's base offense level based
on the crimes of conviction and the involved drug quantity was
thirty-eight. He then applied enhancements based on findings that
the crime occurred in a "protected location," that it was
reasonably foreseeable to Cruz that weapons "were possessed,
carried and used by" members of the DTO, and because Cruz was an
organizer of criminal activity that involved five or more
participants. All told, the trial judge calculated a total offense
level of forty-four, which he then treated as an offense level of
forty-three per the Guidelines' requirements. With a total offense
level of forty-three, the Guidelines-recommended punishment was
life in prison, a sentence which the judge proceeded to impose.
Although the arguments set forth in his brief could have
been stated with better clarity, Cruz essentially claims the
district court committed a variety of procedural errors with
respect to sentencing, and that the life sentence is substantively
unreasonable.32 He argues it is unfair that he received the same
life sentence as Ayala because Ayala was the leader while he was
merely a "third tier administrator." He also believes his life
sentence is not reasonable in comparison with those imposed on four
codefendants who entered guilty pleas and were sentenced to 156
months, 180 months, 108 months, and 132 months, respectively. He
succinctly describes the sentencing range he believes is justified
by the evidence as follows: "[a] sentence higher than what the co-
defendants who pled [guilty] but lower than what the leader [i.e.,
Ayala] received would have been a 'reasonable' sentence." The
government predictably argues that the district court properly
followed sentencing procedures and that the sentence is not
unreasonable given that it is in accordance with the sentencing
guidelines and is appropriate to Cruz's role in the drug
conspiracy. We deal with these challenges seriatim.
32 Cruz's brief has a tendency to combine, rather than separate, his arguments with respect to procedural and substantive unreasonableness.
a. Standard of Review
The Supreme Court has clearly delineated the nature and
scope of our review of the district judge's sentencing decision.
"[A]ppellate review of sentencing decisions is limited to
determining whether they are 'reasonable.'" Gall v. United States,
552 U.S. 38 , 46 (2007). Our "'review process is bifurcated: we
first determine whether the sentence imposed is procedurally
reasonable and then determine whether it is substantively
reasonable.'" United States v. Leahy, 668 F.3d 18 , 21 (1st Cir.
2012) (quoting United States v. Clogston, 662 F.3d 588 , 590 (1st
Cir. 2011)). We employ the abuse of discretion standard in
reviewing claimed procedural errors and in our consideration of the
sentence's substantive reasonableness. United States v. Politano,
522 F.3d 69 , 72 (1st Cir. 2008). And we take into account the
totality of the circumstances surrounding both procedural and
substantive reasonableness. Gall, 552 U.S. at 51.
We take up consideration of the procedural and
substantive reasonableness of Cruz's sentence in turn.
b. Procedural Reasonableness
When we review a sentence's procedural reasonableness, we
must "ensure that the district court committed no significant
procedural error, 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, 552 U.S. at
51. We make use of a "multi-faceted" abuse of discretion standard
to make these determinations. Leahy, 668 F.3d at 21. "We review
factual findings for clear error, arguments that the sentencing
court erred in interpreting or applying the guidelines de novo, and
judgment calls for abuse of discretion simpliciter." Id.
Cruz's procedural challenge is limited in that he does
not contest the district judge's determination that the Guidelines
recommended a life sentence based on the crimes of conviction and
enhancements, nor does Cruz assert that his sentence was based upon
clearly erroneous findings of fact or that the district judge
failed to adequately explain the life sentence. Instead, Cruz
argues that the district judge erred by treating the Guidelines as
mandatory. He further argues his sentence should be vacated
because it is (1) disproportionate to the shorter sentences imposed
on other codefendants who entered into plea agreements with the
government, and (2) equal in length to the life sentence given to
his brother Ayala, who headed up the entire illicit organization.
According to Cruz, this outcome demonstrates that the district
judge failed to apply the Section 3553(a) factors in crafting his
sentence. Thus, Cruz urges us to find the district judge "failed
to make an appropriate individualized assessment and because he
went to trial considered the guidelines mandatory[,] all which rise
to the level of procedural error warranting remand for
The first claimed error need not detain us long.
Although "treating the Guidelines as mandatory" is procedural
error, Gall, 552 U.S. at 51, the district judge did not do so here.
Before pronouncing sentence he explicitly referred to the
Guidelines as "advisory." Nothing in the transcript of the
sentencing hearing gives even the barest hint that, in spite of
this statement, the district judge felt bound by the Guidelines or
that he considered the life sentence to be mandatory.
Cruz's more significant procedural argument is his
contention that the district judge failed to apply 18 U.S.C. §
3553(a)(6) because he did not consider the disparity between his
sentence and those given to Ayala and to other codefendants who cut
plea deals. Cruz had asked the district court to apply a below-
Guidelines sentence in light of shorter sentences meted out to
others involved in the DTO. He argued that this specific factor,
18 U.S.C. § 3553(a)(6), requires a sentencing court to consider
"the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of
33 The government contends that Cruz waived any arguments of disparity between himself and Ayala by failing to raise them at the sentencing hearing. In his Sentencing Memorandum filed prior to hearing, Cruz set forth his position that the Guidelines range is
Cruz insists on appeal that the codefendants who entered
guilty pleas are "similar" to him for purposes of sentencing
because, like those individuals, Cruz was not the head of the DTO.
He claims this type of comparison to the other "less culpable"
defendants in his own case is mandated by Gall v. United States,
552 U.S. 38 (2007). And because the district judge refused to
compare his sentence against those of other codefendants as
required by § 3553(a)(6), Cruz contends his sentence is illegal.
See Gall, 552 U.S. at 51 (including a sentencing court's failure to
consider the § 3553(a) factors among the species of procedural
The government fires back, defending the trial judge's
decision on two fronts. First, the government argues that the
disparities to which § 3553(a) refers are national sentencing
disparities, not disparities within one specific case. The
government further urges us to find that because the other
"so high" as a result of "facts affecting co-defendant [Ayala] directly and not pertaining to [Cruz]." According to Cruz, "there was a great difference in the evidence presented during trial as to what pertained to [Cruz] and to what pertained to co-defendant [Ayala]." Cruz then argued it would be "unjust and unfair" to weigh these facts against Cruz as heavily as against Ayala. At the sentencing hearing, counsel stated Cruz would rely on the Sentencing Memorandum, but also expressed his opinion that most of the evidence at trial was directed towards Ayala, not Cruz. And, although the majority of his "disparity arguments" focused on the lesser sentences meted out to "defendants with similar records and conduct," the issues of his culpability compared to Ayala and of sentencing disparities among defendants named in the Indictment were clearly raised before the district court. Therefore, we decline to find that Cruz waived this aspect of his argument.
codefendants pleaded guilty and thereby accepted responsibility for
their roles in the DTO, they are not in a similar position to Cruz,
and it is not appropriate to compare their sentences to Cruz's.
Here, the district judge stated he considered all of the
factors enumerated in 18 U.S.C. § 3553(a) in crafting Cruz's
sentence. The judge's explicit statement is a point in favor of
our finding that the judge weighed each of those factors and,
therefore, that the sentence is procedurally reasonable. See
Clogston, 662 F.3d at 592 (giving "some weight" to a sentencing
judge's statement that he considered all of the § 3553(a) factors).
Accordingly, we presume the trial judge applied 18 U.S.C. §
3553(a)(6) and considered whether Cruz's life sentence was
disparate as compared to other individuals with similar records and
who had been convicted of similar crimes.
When weighing the § 3553(a) factors, the trial judge
categorically rejected Cruz's assertion that he is "similar" to
others who entered guilty pleas and, therefore, that his sentence
should be commensurate with theirs. Noting that the other
individuals to whom Cruz referred did not require the government to
bring them to trial, he stated "the [sentencing] [G]uidelines are
very specific that once you go to trial and are found guilty, it is
a completely different analysis than it is if you plead guilty and
are sentenced." He further made it clear that he did not feel
compelled to conform Cruz's sentence to those of his codefendants
as, when it comes to disparate sentence lengths, the "disparity [to
be considered] is among defendants in similar cases throughout the
nation, and not within just one case."34 We take the trial judge
at his word that he did not consider Cruz's sentence in light of
those given to the other codefendants who pleaded guilty because,
in his view, those individuals were not similarly situated to Cruz
for sentencing purposes. The judge did not err in so concluding.
Cruz relies heavily on Gall and posits that the Supreme
Court's holding there required the trial judge to compare his
sentence to those of other codefendants in his case. Cruz,
however, misapprehends Gall's teaching. In reality, Gall's core
holding is that a sentencing court should not blindly apply the
advisory Guidelines to an individual before it and should
"'consider every convicted person as an individual and every case
as a unique study in the human failings that sometimes mitigate,
sometimes magnify, the crime and the punishment to ensue.'" 552
U.S. at 52 (quoting Koon v. United States, 518 U.S. 81 , 113
(1996)). To that end, and after affording both parties "an
opportunity to argue for whatever sentence they deem appropriate,
the district judge should then consider all of the § 3553(a)
factors to determine whether they support the sentence requested by
a party." Id. at 49-50. We have recognized that in light of Gall
and other related Supreme Court opinions, "district judges are
34 Focusing his argument on his codefendants, Cruz does not argue that his sentence is not in accordance with those given to similar defendants on a national scale. As such, any such argument has been waived.
empowered with considerable discretion in sentencing . . . ."
United States v. Taylor, 532 F.3d 68 , 69 (1st Cir. 2008). Of equal
importance, Gall firmly establishes that such determinations are
the province of the sentencing courts, not the courts of appeal.
Gall, 552 U.S. at 52 ("The uniqueness of the individual case,
however, does not change the deferential abuse-of-discretion
standard that applies to all sentencing decisions.").
Cruz's assertion that Gall requires the district judge to
conform his sentence to those given his other codefendants is
nothing more than wishful thinking. To be sure, because Cruz
raised the issue at sentencing, the district judge certainly could
have considered the disparity between Cruz's and Ayala's sentences
and Cruz's and the other codefendants' sentences in fashioning
Cruz's sentence. United States v. Martin, 520 F.3d 87 , 94 (1st
Cir. 2008) ("[D]istrict courts have discretion, in appropriate
cases, to align codefendants' sentences somewhat in order to
reflect comparable degrees of culpability--at least in those cases
where disparities are conspicuous and threaten to undermine
confidence in the criminal justice system."). Even after Gall,
however, "consideration of sentencing disparity primarily targets
disparities among defendants nationally." United States v.
McDonough, 727 F.3d 143 , 165 (1st Cir. 2013).35 Thus, the
35 Cruz tells us the Supreme Court rejected this proposition by vacating our judgment in United States v. Tom, 504 F.3d 89 , 94 (1st Cir. 2007) and remanding it to us "for further consideration in light of" Gall. Tom v. United States, 552 U.S. 1163 (2008).
sentencing judge was not bound, as a matter of law, to explicitly
consider disparities between Cruz's sentence and those given to
Ayala and to codefendants who pleaded guilty.
After carefully reviewing the sentencing record, we
conclude that Cruz has failed to show his sentence was affected by
any procedural error.
c. Substantive Reasonableness
Having found no procedural error, we move on to Cruz's
argument that his life sentence is substantively unreasonable in
light of what he characterizes as his limited role in the DTO.
Although there is no question here that Cruz's life sentence is a
Guidelines sentence, we review sentences for substantive
reasonableness "regardless of whether they fall inside or outside
the applicable Guidelines sentencing range." United States v.
Morales-Machuca, 546 F.3d 13 , 25 (1st Cir. 2008). We "consider the
substantive reasonableness of the sentence imposed under an abuse-
of-discretion standard," taking into account all of the relevant
After taking up the matter again, we ordered the district court to reconsider its sentence in accordance with Gall and the concerns expressed in our earlier 2007 opinion, including our judgment that "the justifications given by the court for its lenient sentence did not adequately consider the national interests in federal sentencing, exemplified in part by the Sentencing Guidelines." United States v. Tom, 275 F. App'x 23 , 24 (1st Cir. 2008) (unpublished) (emphasis added). Hence, the ultimate disposition of this case belies Cruz's position. We find no support for, and consequently reject, Cruz's argument that Tom, 504 F.3d 89 , and other cases expressing a concern about national sentencing disparities "are no longer good law."
circumstances. Gall, 552 U.S. at 51; Leahy, 668 F.3d at 24
(quoting Martin, 520 F.3d at 92).
"[T]he linchpin of a substantively reasonable sentence is
a plausible sentencing rationale and a defensible result." United
States v. Pol-Flores, 644 F.3d 1 , 4-5 (1st Cir. 2011) (internal
quotation marks and alterations omitted). "Challenging a sentence
as substantively unreasonable is a burdensome task in any case, and
one that is even more burdensome where, as here, the challenged
sentence is within a properly calculated [Guidelines Sentencing
Range]." Clogston, 662 F.3d at 592-93. Cruz "must adduce fairly
powerful mitigating reasons and persuade [this Court] that the
district judge was unreasonable in balancing pros and cons."
United States v. Batchu, 724 F.3d 1 , 14 (1st Cir. 2013) (internal
quotation marks omitted).
Cruz faces a high hurdle and, as it turns out, one he is
unable to surmount. Echoing his arguments with respect to his
claims of procedural error, Cruz maintains that his life sentence
is not substantively reasonable because, although he was but a
"third tier administrator" of the DTO, his sentence is equal to the
one meted out to Ayala, the DTO's kingpin. Thus, the focus in
these arguments is Cruz's contention that he should not be
subjected to the same penalty as Ayala because Ayala was more
culpable than him with respect to the substantial overarching drug
conspiracy. Cruz lays out a laundry list of bad acts committed by
his brother, but ostensibly not by him, and bluntly asserts that in
light of their differing conduct, he "did not deserve the same life
sentence" as his brother.
In Cruz's view, he received a life sentence only because
the district judge employed a "strict application of the guidelines
as reprisal for [Cruz] having gone to trial." He contends that
being punished in this way for exercising his constitutional right
to a jury trial renders his sentence substantively unreasonable.
A reasonable sentence, he asserts, would be something less than
life, but lengthier than the sentences given to codefendants who
The government points out that the district judge
correctly calculated Cruz's offense level and the Guidelines-
recommended sentence. The government goes on to argue that the
evidence at trial regarding Cruz's personal involvement in the DTO
justified his life sentence. Accordingly, the government urges us
to find the district judge did not err by imposing a Guidelines
The Supreme Court has recognized that, in general, the
Guidelines sentencing ranges "reflect a rough approximation of
sentences that might achieve § 3553(a)'s objectives." United
States v. Rita, 551 U.S. 338 , 350 (2007). Further, "when a
district judge's discretionary decision in a particular case
accords with the sentence the United States Sentencing Commission
deems appropriate 'in the mine run of cases,' the court of appeal
may presume that the sentence is reasonable." Gall, 552 U.S. at 40
(quoting Rita, 551 U.S. at 350-51). Nevertheless, and although the
Supreme Court has explicitly given us the authority to apply this
presumption of reasonableness, we have elected not to do so in this
Circuit. See United States v. Madera-Ortiz, 637 F.3d 26 , 30 (1st.
Cir 2011); United States v. Jiménez-Beltre, 440 F.3d 514 , 518 (1st
Cir. 2006) (finding it is "not . . . helpful to talk about the
[G]uidelines as 'presumptively' controlling or a [G]uidelines
sentence as 'per se reasonable'"). The district judge here
recognized the Guidelines are advisory only, yet after
consideration of the factors set forth in 18 U.S.C. § 3553(a),
imposed the Guidelines-recommended sentence of life imprisonment.
Cruz, however, fails to convince us that his sentence is
Throughout his brief, Cruz maintains his sentence should
be less lengthy than Ayala's because Ayala was "more culpable" in
the drug conspiracy. Cruz also asserts that his culpability was
more akin to that of the other codefendants who entered guilty
pleas and received sentences that do not come close to approaching
life in prison. In staking out this territory, Cruz misapprehends
our function as an appellate court and the scope of our review.
Determinations as to the relative culpability amongst codefendants
are best made by the district judge, who presided at trial,
attended to the testimony of the witnesses, and viewed the exhibits
along with the jury. See Gall, 552 U.S. at 51-52 (quoting Koon v.
United States, 518 U.S. at 98) (recognizing district court judges
have "'an institutional advantage over appellate courts in making
these sorts of determinations'"). And because the coconspirators
who received lesser sentences had entered guilty pleas whereas Cruz
stood trial, the district judge was not required to conform Cruz's
sentence to theirs because those individuals were not similarly
situated to him. United States v. Rodriguez-Lozada, 558 F.3d 29 ,
45-46 (1st Cir. 2009) (affirming life sentence where the
Guidelines-recommended range ran from 360 months to life in light
of the "material difference" between the defendants who entered
guilty pleas (and received more lenient sentences) and the one who
stood trial, such that the sentencing disparity did not "amount to
an abuse of discretion"). Accordingly, Cruz's life sentence is not
substantively unreasonable simply because certain codefendants
received more lenient sentences after they pleaded guilty.
Cruz's next argument is that the district judge failed to
consider the fact that his "personal characteristics reflected
rehabilitative potential," and justified a below-Guidelines
sentence. Cruz notes first that although he himself was abused as
a child and witnessed domestic violence in his home, he is a "good
family man and parent." To highlight his rehabilitative potential,
Cruz points out that "[a]lthough he lived in such a negative, drug
laden environment he never consumed any drugs and when arrested
tested negative for all narcotics." Cruz urges us find that the
district judge improperly failed to give any consideration to his
personal situation and that, had it done so, it would have imposed
a lesser sentence.
Cruz's objections are wholly without merit. The district
judge in fact explicitly considered (1) Cruz's arrest record and
absence of criminal record; (2) his managerial role in the drug
conspiracy; (3) the goals of sentencing, e.g., punishment, and
deterrence; and (4) Cruz's history and characteristics. Indeed,
with respect to Cruz's personal history, the district court found
he "abandoned school after the eighth grade," "has no specialized
skills, training or professional license," and only "a limited
history of formal employment." Although the district court could
have considered Cruz's background and claimed lack of drug use as
a point in his favor, it could also have concluded his
participation in such a wide-ranging conspiracy that preyed upon
society's weakest and most vulnerable made his actions even more
egregious than someone who participated only as a way to make money
to support his own drug addiction.
At bottom, it is manifest from the record that the
district judge was not convinced that anything in Cruz's background
warranted departure from the Guidelines-recommended sentence.
"That the court chose to attach less significance to certain
mitigating circumstances than [Cruz] thinks they deserved does not
make his sentence substantively unreasonable." United States v.
Colón-Rodríguez, 696 F.3d 102 , 108 (1st Cir. 2012). Moreover, Cruz
has wholly failed to come forward with any mitigating reasons,
never mind "fairly powerful ones," and we are not persuaded that
the district judge unreasonably balanced the factors that went into
crafting Cruz's sentence. Batchu, 724 F.3d at 13 (internal
quotation marks omitted).
All in all, the record demonstrates the district judge
imposed a life sentence only after considering Cruz's individual
characteristics and history, his prominent role in the conspiracy,
and the other factors set forth in § 3553(a). Cruz has not
convinced us that the district judge abused his discretion in
imposing the Guidelines-recommended life sentence. Cruz's sentence
The sheer size, scope, sophistication, and profitability
of the DTO's Barbosa operations are enough to take one's breath
away. The human toll exacted by its illicit activity is
unknowable. Only through a painstaking investigation was law
enforcement able to curtail its operations and begin to bring its
members and leaders to justice. Rather than face trial and the
prospect of paying the full, heavy price for their crimes, many of
these individuals elected to plead guilty in the hope of receiving
Not so Ayala and his brother Cruz. Much as Tennyson's
Balin and Balan36 together sat upon their horses and tested their
36 Alfred, Lord Tennyson, Idylls of the King, Balin and Balan, in The Complete Poetical Works of Tennyson 357-66 (Cambridge ed.,
might against all-comers, these two brothers stood their ground
against the full force of the evidence marshaled by the federal
government and the testimony of their own partners in crime. In
the end, however, Cruz and Ayala fared little better than did Balin
and Balan, who perished in each other's arms. The mountains of
evidence at trial proved beyond a reasonable doubt that Ayala was
the DTO's kingpin, and that his brother Cruz was a trusted
lieutenant who helped him oversee and control the scores of
individuals involved in the drug sales at Barbosa. Ayala and Cruz,
bound together initially by their blood, will now share the same
fate: life in prison.
While the brothers struggle mightily in this appeal to
get out from under their shared doom, after careful consideration
we conclude there is no merit to any of the grounds raised on
appeal. Accordingly, we affirm the convictions of Ayala and Cruz
in all respects. We affirm Cruz's life sentence as well.
Cambridge, Houghton, Mifflin & Co. 1898).