United States Court of Appeals For the First Circuit
UNITED STATES OF AMERICA,
UNITED STATES OF AMERICA,
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Torruella, Selya and Lynch, Circuit Judges.
Ines de Crombrugghe McGillion, with whom Ines McGillion Law Offices, PLLC was on brief, for appellant Walker-Couvertier. Allison J. Koury for appellant Lugo-Díaz. Finnuala K. Tessier, Attorney, Appellate Section, Criminal Division, United States Department of Justice, with whom Kenneth A. Blanco, Acting Assistant Attorney General, Trevor N. McFadden, Acting Principal Deputy Assistant Attorney General, Rosa Emilia Rodríguez-Vélez, United States Attorney, and José A. Contreras, Assistant United States Attorney, were on brief, for appellee.
June 15, 2017
SELYA, Circuit Judge. In these consolidated criminal
appeals, the defendants — represented by newly appointed counsel
— offer up a salmagundi of arguments. Virtually all of these
arguments were either forfeited or waived in the court below.
Attempting to reinvent a case on appeal is a tactic that very
rarely works — and it does not work here. After careful
consideration, we conclude that none of the components of the
defendants' asseverational array withstands scrutiny under the
largely inhospitable standards of review that apply.
Consequently, we affirm the defendants' convictions and sentences.
We start with a bird's-eye view of the facts — recited
in the light most favorable to the jury's verdict, see United
States v. Sepulveda, 15 F.3d 1161 , 1172 (1st Cir. 1993) — and the
travel of the case.
In 2012, agents of the Bureau of Alcohol, Tobacco,
Firearms and Explosives arrested dozens of members of a sprawling
drug-trafficking ring operating mostly out of three public housing
complexes in Carolina, Puerto Rico (El Coral, Lagos de Blasina,
and El Faro). David Oppenheimer-Torres (Oppenheimer), who headed
this drug ring, typically hired project residents to package and
sell various kinds of drugs to fellow inhabitants of their
communities. Many of Oppenheimer's associates carried firearms
and used violence to carry out the drug ring's objectives.
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Defendant-appellant Abraham Walker-Couvertier (Walker)
toiled as a runner, responsible for delivering drugs to pushers at
the three housing projects. He also served as an enforcer for the
drug ring and sold drugs at the El Coral project. Walker
participated in the conspiracy from 2006 to 2010. Defendant-
appellant Dean Lugo-Díaz (Lugo) worked as a seller at the El Faro
project. He was an active participant in the drug ring's business
in two different time frames: for a period of time between late
2006 and early 2007 and again for a period of several months in
In May of 2012, a federal grand jury returned a six-
count indictment against Walker, Lugo, and seventy-two other
individuals allegedly involved in the Oppenheimer drug ring. As
relevant here, the indictment charged the defendants with
conspiring to distribute and possess with intent to distribute
specified amounts of heroin, cocaine, crack cocaine, and marijuana
within 1,000 feet of a public housing facility (count one). See
21 U.S.C. §§ 841(a)(1), 846, 860. The indictment also charged the
defendants with aiding and abetting the distribution and
possession of the same drugs (counts two through five). See 18
U.S.C. § 2; 21 U.S.C. §§ 841(a)(1), 860. Walker was separately
charged with carrying a firearm during and in relation to a drug-
trafficking crime (count six). See 18 U.S.C. § 924(c)(1)(A).
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Of all the defendants, only Walker and Lugo opted to
maintain their innocence. During the eight-day trial, the jury
heard testimony from cooperating witnesses and police officers and
viewed videotape and documentary evidence. At the close of the
government's case-in-chief, Walker and Lugo each moved for
judgment of acquittal. See Fed. R. Crim. P. 29(a). The court
denied both motions, save that it granted Lugo's motion as to the
charge of aiding and abetting the possession with intent to
distribute heroin. The defendants unsuccessfully renewed their
sufficiency challenges at the close of all the evidence.
The case went to the jury, which found both defendants
guilty of conspiring to possess with intent to distribute at least
one kilogram of heroin, five kilograms of cocaine, 280 grams of
crack cocaine, and 100 kilograms of marijuana, all within 1,000
feet of a public housing facility. It also found both defendants
guilty of aiding and abetting the possession with intent to
distribute between 500 grams and five kilograms of cocaine and
between twenty-eight and 280 grams of crack cocaine. Both
defendants were found guilty of aiding and abetting the possession
with intent to distribute marijuana within 1,000 feet of a public
housing facility (Walker was found responsible for more than 100
kilograms, and Lugo was found responsible for between five and 100
kilograms). Walker also was found guilty of carrying a firearm
during and in relation to a drug-trafficking crime. Finally, the
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jury acquitted Walker of aiding and abetting the possession with
intent to distribute heroin.
Lugo — but not Walker — renewed his motion for judgment
of acquittal after the jury rendered its verdict. See Fed. R.
Crim. P. 29(c). The district court denied the motion, see United
States v. Lugo Díaz, 80 F. Supp. 3d 341 , 360 (D.P.R. 2015), and
ordered the probation department to prepare a presentence
investigation report for each defendant.
In cases involving multiple types of drugs, drug
quantities are converted into their marijuana equivalents and
added together to aid in the calculation of the applicable
guideline sentencing range (GSR). See USSG §2D1.1, cmt. n.8(B),
(D). At Walker's disposition hearing, the court found him
responsible for what amounted to 12,885.56 kilograms of marijuana
and set his GSR at 188 to 235 months. It sentenced him to
concurrent 192-month terms of immurement on the drug counts and a
consecutive 60-month term of immurement on the firearms count. At
Lugo's disposition hearing, the court found him responsible for
the equivalent of 1,328.41 kilograms of marijuana and set his GSR
at 121 to 151 months. It sentenced him to concurrent 121-month
terms of immurement on the various counts of conviction. These
timely appeals followed.
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II. CHALLENGES TO THE CONVICTIONS
The defendants have advanced arguments that implicate
both their convictions and their sentences. We deal first with
their conviction-related claims, taking them in an order that
roughly parallels the proceedings below.
A. Statute of Limitations.
Lugo challenges the timeliness of his prosecution,
insisting that his initial period of participation in the
conspiracy — which ran from late 2006 to early 2007 — is beyond
the applicable five-year statute of limitations. See 18 U.S.C.
§ 3282. Since Lugo raises this argument for the first time on
appeal, our review would normally be for plain error. See United
States v. Olano, 507 U.S. 725 , 731-32 (1993). Here, however,
precedent precludes any review at all.
The Supreme Court recently has held that a defendant can
never successfully pursue a statute-of-limitations defense for the
first time on appeal. See Musacchio v. United States, 136 S. Ct.
709 , 716-18 (2016). The Court reasoned that the statute of
limitations becomes part of a case only if the defendant raises it
as a defense in the district court. See id. at 717-18. If the
defendant fails to do so, the limitations defense never "become[s]
part of the case and the Government does not otherwise have the
burden of proving that it filed a timely indictment." Id. at 718.
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In such circumstances, a district court's failure to consider the
timeliness of the charge can never be error. See id.
So it is here. Lugo did not question the timeliness of
his prosecution below. Thus, the district court's failure to
consider that issue was not error. See id.
B. English Proficiency Requirement.
Both Walker and Lugo challenge the constitutionality of
the requirement, as applied in the District of Puerto Rico, that
jurors be proficient in English. The requirement itself is
statutory in nature: Congress has provided that jurors who serve
in federal court trials must be able to read, write, and understand
English with at least minimal proficiency. See 28 U.S.C.
§ 1865(b)(2)-(3). The defendants argue that, when applied in
Puerto Rico (where Spanish speakers predominate), this requirement
abridges the defendants' right to a trial by a jury comprising a
fair cross-section of the community. See Duren v. Missouri, 439
U.S. 357 , 360 (1979); Taylor v. Louisiana, 419 U.S. 522 , 526-27
This claim was not advanced below, and it is subject to
plain error review. See United States v. Duarte, 246 F.3d 56 , 60
(1st Cir. 2001).
The English proficiency requirement, on its face, puts
in place a sensible modality for the conduct of trials in federal
courts. Not surprisingly, this requirement has survived a steady
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stream of attacks in this circuit. See, e.g., United States v. De
La Paz-Rentas, 613 F.3d 18 , 24 (1st Cir. 2010); United States v.
Escobar-de Jesus, 187 F.3d 148 , 166 (1st Cir. 1999); United States
v. Flores-Rivera, 56 F.3d 319 , 326 (1st Cir. 1995). These
decisions bring into play the law of the circuit doctrine, which
confirms that, in a multi-panel circuit, a new panel is "bound by
prior panel decisions that are closely on point." San Juan Cable
LLC v. P.R. Tel. Co., 612 F.3d 25 , 33 (1st Cir. 2010).
Only a handful of narrow exceptions to this doctrine
exist. These exceptions include "the occurrence of a controlling
intervening event (e.g., a Supreme Court opinion on the point; a
ruling of the circuit, sitting en banc; or a statutory overruling)
or, in extremely rare circumstances, where non-controlling but
persuasive case law suggests" departing from prior precedent.
United States v. Chhien, 266 F.3d 1 , 11 (1st Cir. 2001). No such
exception pertains here. It follows inexorably as sunset follows
sunrise, that we must reject the defendants' belated challenge to
the English proficiency requirement.
C. Admission of Traffic-Stop Evidence.
Walker argues that the district court erred when it
permitted the government to introduce evidence seized during a
July 2008 traffic stop. The relevant facts can be succinctly
summarized. Puerto Rico police officers came across Walker's car
while on patrol. They observed that the license plate was
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partially obscured (in violation of local traffic laws) and stopped
the car so that they could investigate the putative violation.
During the ensuing stop, the officers obtained Walker's consent to
a search of the vehicle. In the course of that search, the officers
found cash, a loaded gun, a small bag of marijuana cuttings, and
a marijuana cigar.
At trial, Walker for the first time questioned the
propriety of the traffic stop and sought suppression of the
evidence seized. He insisted that the officers were interested in
his car because they suspected his involvement in a criminal
organization then under investigation and that their traffic-
violation rationale was pretextual. The district court denied the
motion to suppress on the merits and allowed the government to
introduce the disputed evidence.
In this venue, Walker attempts to raise a variety of
more particularized challenges to the warrantless stop. He argues,
for example, that the government did not have reasonable suspicion
adequate to justify the stop, see Chhien, 266 F.3d at 5-6, and
that the evidence was seized in violation of the Fourth Amendment,
see Wong Sun v. United States, 371 U.S. 471 , 484-85 (1963). He
alleges that his license plate was fully legible, and that the
officers had only a "generalized suspicion" that he was involved
in criminal activities. See United States v. Cortez, 449 U.S.
411 , 417-18 (1981) (requiring a "particularized and objective
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basis" to justify a traffic stop). Moreover, he suggests that
even if the initial stop was lawful, it was impermissibly
prolonged. See Rodriguez v. United States, 135 S. Ct. 1609 , 1611
We need not reach the merits of Walker's argument. The
critical datum is that he did not move to suppress the evidence
seized until his trial was already well underway. That delay is
fatal to the challenge that he now seeks to pursue.
Walker's claim of error is governed by the version of
the rule that was in effect when the district court adjudicated
his motion. See United States v. Bulger, 816 F.3d 137 , 145 n.7
(1st Cir.), cert. denied, 137 S. Ct. 247 (2016). Federal Rule of
Criminal Procedure 12 was amended in December of 2014. The pre-
amendment version of the rule, as it read at the time of Walker's
trial, specified that the failure to move to suppress particular
evidence before trial resulted in "waiver" of any objection and
that such a waiver should be overlooked only upon a showing of
"good cause" sufficient to excuse the delay. See Fed. R. Crim. P.
12(e) (2014 ed.). Walker wholly failed to identify any semblance
of good cause that might have excused the untimeliness of his
motion to suppress. Thus, Walker's suppression claim was waived
— and having waived it, Walker is not entitled to any appellate
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review.1 See United States v. Rodriguez, 311 F.3d 435 , 437 (1st
Cir. 2002) (explaining that "a waived issue ordinarily cannot be
resurrected on appeal").
Contrary to Walker's importunings, the fact that the
district court elected to deny his motion on the merits does not
alter our analysis. That a district court chooses to address a
motion on the merits does not preclude an appellate court from
ruling that the motion should have been denied on a procedural
ground (such as waiver or preclusion). See United States v.
Bashorun, 225 F.3d 9 , 14 (1st Cir. 2000). As we have noted, a
trial court may opt to address a waived claim simply to create a
record in the event that the appellate court does not deem the
argument waived. See, e.g., United States v. Santos Batista, 239
F.3d 16 , 20 (1st Cir. 2001).
The defendants attack several statements made by the
prosecutor during closing argument. They strive to convince us
that the statements were so improper and prejudicial as to demand
a new trial. We are not persuaded.
1 We hasten to add that even under the current version of Rule 12, Walker would not be entitled to any relief. Though the express reference to "waiver" in Rule 12 was deleted in December of 2014, the amendment did not substantively change the rule. See Fed. R. Crim. P. 12 advisory committee's notes to 2014 amendments (stating that "[n]ew paragraph 12(c)(3) retains the existing standard for untimely claims").
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When, as in this case, a defendant does not
contemporaneously object to a statement made during closing
argument, review is for plain error. See Sepulveda, 15 F.3d at
1188. That review "entails four showings: (1) that an error
occurred (2) which was clear or obvious and which not only (3)
affected the defendant's substantial rights, but also (4)
seriously impaired the fairness, integrity, or public reputation
of judicial proceedings." Duarte, 246 F.3d at 60.
We have made it pellucid that, as applied to closing
arguments, the plain error standard requires the court first to
determine whether the challenged comment is obviously improper,
that is, whether the first two prongs of the plain error standard
have been satisfied. See United States v. Vizcarrondo-Casanova,
763 F.3d 89 , 96-97 (1st Cir. 2014); United States v. Nunez, 146
F.3d 36 , 39 (1st Cir. 1998). If so, the court must proceed to
consider whether the comment "so poisoned the well that the trial's
outcome was likely affected." United States v. Mejia-Lozano, 829
F.2d 268 , 274 (1st Cir. 1987). In conducting this assessment, the
court must weigh factors such as the severity of the misconduct,
the context in which it occurred, the presence or absence of
curative instructions, and the strength of the evidence. See
United States v. Kasenge, 660 F.3d 537 , 542 (1st Cir. 2011).
The defendants first complain that the prosecutor went
astray when he said, without objection:
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[W]e could have easily . . . taken this trial and turned it into two months. Easily. Could have brought in boatloads of seizures, showing you every video in the world.
The question is, does that change what the evidence showed? Does bringing boatloads of cocaine really change what was proven? We argue no.
The defendants contend that this statement amounted to an improper
reference to extra-record evidence. See, e.g., United States v.
Tajeddini, 996 F.2d 1278 , 1284 (1st Cir. 1993).
It is elementary that cases should be tried and decided
based on the evidence before the jury, see Smith v. Phillips, 455
U.S. 209 , 217 (1982), and the government crossed the line into
forbidden terrain when it cavalierly told the jury that "boatloads"
of other evidence, never introduced, inculpated the defendants.2
Even so, the possibility that the prosecutor's statement
affected the outcome of the trial is miniscule. The copious trial
2 Regrettably, this is not the first time that federal prosecutors in Puerto Rico have jeopardized strong cases by making overzealous arguments. See, e.g., United States v. Pereira, 848 F.3d 17 , 33 (1st Cir. 2017); United States v. Ayala-García, 574 F.3d 5 , 22 (1st Cir. 2009); United States v. Andújar-Basco, 488 F.3d 549 , 561 & n.5 (1st Cir. 2007); see also United States v. Martínez-Medina, 279 F.3d 105 , 128 & n.12 (1st Cir. 2002) (Torruella, J., concurring) (collecting cases). Issues of this sort have arisen both when prosecutors are hired locally in the first instance and when they have transferred from another district, implying a lack of both training and oversight. It is as much a part of a prosecutor's sworn duty to abide by the rules governing criminal proceedings as it is to prosecute cases. We hope that the Department of Justice will at long last begin to take seriously these persistent derelictions of duty.
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evidence provided overwhelming proof of the defendants' guilt. It
is a commonsense proposition that "the well is . . . less likely
to have been poisoned where strong evidence supports the
prosecutor's case." Kasenge, 660 F.3d at 543. As we illustrate
below, that proposition applies here.
With respect to Walker, no fewer than three witnesses
testified in detail about his involvement in the conspiracy. One
identified him as a runner and pusher at the El Coral housing
project who sold cocaine, crack cocaine, and marijuana. A second
confirmed that Walker served as a runner and explained that she,
too, had seen him sell cocaine, crack cocaine, and marijuana at El
Coral on several occasions. The third (a self-confessed pusher in
the drug ring) testified that Walker provided him with cocaine to
sell. All three witnesses testified that Walker carried a gun
while distributing drugs, and one witness confirmed that the gun
carried by Walker was the same color and type as the gun seized
from Walker's car during the July 2008 traffic stop. In addition,
a police officer testified that when Walker was arrested in
September of 2010, he was carrying 25 vials of crack cocaine.
So, too, equally robust evidence supported Lugo's
conviction. A government witness testified that Lugo sold him
marijuana several times a week between 2006 and 2007. The same
witness testified that he had seen Lugo sell cocaine, crack
cocaine, and marijuana to others in the housing project. Further,
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the witness explained that he and Lugo would sometimes smoke
marijuana together and give each other advice about selling drugs
and evading law enforcement.
To make the cheese more binding, the government
introduced a number of surveillance videos. Construing the videos
in the light most favorable to the verdict, see Sepulveda, 15 F.3d
at 1172, the footage depicted Lugo selling drugs at the El Faro
housing project. In them, Lugo is seen exchanging money and
parcels with a number of people. Government witnesses identified
the individuals seen working with Lugo in the videos as fellow
members of the conspiracy.
One other point deserves special mention. Although the
defendants did not request a curative instruction specifically
addressing the prosecutor's improper "boatloads" reference and the
district court did not give one, the court did instruct the jurors
(after the closing arguments had been completed) that their verdict
must be based solely on the evidence. The court added that
"[a]rguments and statements by lawyers are not evidence." These
instructions mitigated any adverse impact that the improper
statement might otherwise have had. See Mejia-Lozano, 829 F.2d at
274. Given these instructions and the strength of the government's
case, we are confident that the "boatloads" statement, though far
beyond the pale, did not affect the verdict and, thus, did not
deprive the defendants of a fair trial.
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Walker challenges several other statements made during
the prosecutor's summation. For example, he alleges that the
prosecutor engaged in improper vouching. Once again, further facts
are needed to put this allegation in context.
Throughout the trial, Walker's counsel attempted to
discredit government witnesses by eliciting testimony that they
had agreed to cooperate in exchange for leniency at sentencing.
During summation, the prosecutor — attempting to combat this line
of attack — noted that two of the government's three cooperating
witnesses had testified that they were concerned that helping the
government could put them at risk of retaliation. The prosecutor
asked the jurors whether it would make sense to testify "and risk
their lives to what, save a couple of years?" It is this statement
that Walker insists amounted to vouching.
Vouching occurs when a prosecutor "places the prestige
of her office behind the government's case by, say, imparting her
personal belief in a witness's veracity or implying that the jury
should credit the prosecution's evidence simply because the
government can be trusted." United States v. Perez-Ruiz, 353 F.3d
1 , 9 (1st Cir. 2003). Here, the prosecutor did not mention his
personal beliefs about the witnesses' veracity, nor did he imply
that the witnesses should be trusted simply because they testified
on the government's behalf. Instead, he referred to trial
testimony in an effort to give the jurors a reason why they should
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credit the witnesses' testimony. "[A]n argument that does no more
than assert reasons why a witness ought to be accepted as truthful
by the jury is not improper witness vouching." Id. at 10 (quoting
United States v. Rodríguez, 215 F.3d 110 , 123 (1st Cir. 2000)).
Next, Walker (who did not testify on his own behalf)
asserts that the prosecutor commented on his silence, in violation
of the Fifth Amendment. See Griffin v. California, 380 U.S. 609 ,
615 (1965). This assertion rests on a grab-bag of statements
uttered during the prosecutor's summation:
at one point, the prosecutor stated that "the [witnesses']
identification of the defendants in this case is not
at another point, the prosecutor noted that defense counsel
had not argued that the government's witnesses did not know
at yet another point, the prosecutor observed that defense
counsel had not identified any credible reason why the
government's witnesses would have lied.
Walker's contention that these statements amounted to
comments on his failure to testify is made up out of whole cloth.
When a defendant maintains that the prosecutor commented on his
silence, the central question reduces to "whether, in the
circumstances of the particular case, the language used was
manifestly intended or was of such character that the jury would
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naturally and necessarily take it to be a comment on the failure
of the accused to testify." United States v. Laboy-Delgado, 84
F.3d 22 , 31 (1st Cir. 1996) (quoting United States v. Lilly, 983
F.2d 300 , 307 (1st Cir. 1992)). Here, the prosecutor did no more
than point out to the jury that defense counsel had not made
certain arguments. Taken in context, no reasonable juror could
interpret the prosecutor's statements as even veiled commentary on
Walker's decision not to testify. See id.
Walker finds fault with yet another aspect of the
prosecutor's summation. He insists that the prosecutor referred
to facts not in evidence when he stated that Walker "went and got
another [gun]" after police officers, during the July 2008 traffic
stop, seized the gun that had been in his car. As Walker sees it,
"[t]here was no trial evidence supporting the prosecutor's
The record tells a different tale. One of the
government's witnesses, testifying about conduct that occurred
after 2008, vouchsafed that she regularly saw Walker with a
firearm. There was no evidence that the seized gun was ever
returned to Walker, so it was a reasonable inference that any gun
carried by Walker after 2008 was not the gun seized by the police
in 2008. Thus, the challenged statement had an adequate basis in
the evidence and, therefore, was not improper. See United States
v. Hernández, 218 F.3d 58 , 68 (1st Cir. 2000) (explaining that
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"[p]rosecutors are free to ask the jury to make reasonable
inferences from the evidence submitted at trial").
E. Jury Instructions.
Lugo advances a claim of instructional error.3 This
claim centers on a statement that the district court made in its
end-of-case jury instructions. Some background facts are needed
to place this claim in perspective.
At the close of the government's case-in-chief, the
court concluded that there was insufficient evidence to support
the charge against Lugo for aiding and abetting the distribution
of heroin. Accordingly, it granted Lugo's Rule 29(a) motion for
judgment of acquittal on that count. In its end-of-the-case jury
instructions, the court told the jury that the court had "dismissed
that charge" after determining that "the proof did not find
Before us, Lugo argues for the first time that the
court's statement necessarily implied that there was sufficient
evidence to support a verdict for the government on the remaining
counts. In his view, the statement implicitly diminished the
government's burden of proof on those counts. Because he did not
object to the jury instructions when they were given, his claim is
3 Lugo makes a second claim of instructional error which, for simplicity's sake, we discuss in connection with his arguments relating to the scope of the conspiracy. See infra Part II(F).
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reviewed for plain error. See United States v. Pennue, 770 F.3d
985 , 989 (1st Cir. 2014).
The "plain error hurdle . . . nowhere looms larger than
in the context of alleged instructional errors." United States v.
Paniagua-Ramos, 251 F.3d 242 , 246 (1st Cir. 2001). Thus, Lugo's
claim faces a steep uphill climb. See id. Lugo tries to make
this climb by arguing that any reasonable juror would have
understood the court to mean that, if there was insufficient
evidence to convict Lugo on the heroin charge, there must have
been sufficient evidence on the other counts. This argument is
too facile by half. For one thing, it ignores the very real
possibility that the jurors would have understood the court to
mean nothing more than that there was insufficient evidence to
submit the heroin charge for their consideration. For another
thing, the argument ignores the equally real possibility that the
jurors would have taken the statement to indicate that the
government had overreached, disposing the jurors to examine the
remaining counts more skeptically.
The short of it is that the challenged statement is
ambiguous. When a prosecutor makes an ambiguous remark, a
reviewing court "should not lightly infer that [the] prosecutor
intend[ed the] remark to have its most damaging meaning or that a
jury . . . will draw that meaning from the plethora of less damaging
interpretations." Donnelly v. DeChristoforo, 416 U.S. 637 , 647
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(1974). We think that situation is analogous to the situation at
hand, and "[w]e are particularly unwilling to fish in the pool of
ambiguity where the defendant did not contemporaneously object."
Sepulveda, 15 F.3d at 1188.
We hold that where, as here, an instruction is ambiguous
and is not objected to in a timely manner, a reviewing court should
hesitate to give the instruction its most pernicious meaning. In
this instance, a context-specific review satisfies us that the
challenged statement, viewed under the totality of the
circumstances, has not affected the trial's fairness. Cf. id. at
1187 (warning against deciding cases "on what amounts to a doomsday
scenario"). There was no plain error.4
F. Scope of the Conspiracy.
Lugo challenges the sufficiency of the evidence
underlying his conspiracy conviction. Specifically, he assigns
error to the district court's denial of his post-trial motion for
judgment of acquittal on the ground that the government did not
prove the existence of a single mega-conspiracy. In his view, the
totality of the evidence indicated no more than that he
participated in a mini-conspiracy operated out of one housing
4 After Walker filed his opening brief, he attempted for the first time to incorporate Lugo's claim of instructional error by motion. See Fed. R. App. P. 28(i). We need not decide whether Walker's belated attempt at incorporation suffices because, in any event, the attempt fails for the same reasons that Lugo's claim fails.
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project, not in a broader conspiracy covering all three housing
projects. Since this issue was preserved below, we review the
denial of his Rule 29(c) motion de novo. See United States v.
George, 841 F.3d 55 , 61 (1st Cir. 2016). The pivotal question is
"whether, after assaying all the evidence in the light most amiable
to the government, and taking all reasonable inferences in its
favor, a rational factfinder could find, beyond a reasonable doubt,
that the prosecution successfully proved the essential elements of
the crime." Id. (quoting United States v. Chiaradio, 684 F.3d
265 , 281 (1st Cir. 2012)).
Our assessment of whether the evidence supports a
finding of a single conspiracy must be "pragmatic" in nature.
United States v. Fenton, 367 F.3d 14 , 19 (1st Cir. 2004). We
consider, among other things, whether a rational jury could have
found that the coconspirators had a common goal, were
interdependent, and had overlapping roles. See id.; United States
v. Portela, 167 F.3d 687 , 695-96 (1st Cir. 1999). We conclude,
without serious question, that a rational factfinder could have
determined not only that Oppenheimer conducted drug-trafficking
operations in three public housing projects but also that all of
these operations were part of one mega-conspiracy.
To begin, the evidence supported a reasonable inference
that all of the individuals that worked under Oppenheimer
(including Lugo) shared a common goal: "furthering the
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distribution of drugs." United States v. Negrón-Sostre, 790 F.3d
295 , 309 (1st Cir. 2015). The record includes detailed information
about the methods that the coconspirators employed to acquire drug
inventory, protect that inventory, and distribute contraband in
their communities. Similarly, there was evidence that the
coconspirators often discussed their sales and pooled information
about how to evade detection. No more was exigible to ground a
finding that Oppenheimer's cohorts were working toward a common
goal. See Portela, 167 F.3d at 695-96.
A rational jury also could have found that the
participants were interdependent. Such a finding requires
evidence from which a jury reasonably could conclude that "the
activities of one aspect of the scheme [were] necessary or
advantageous to the success of another aspect of the scheme." Id.
at 695 (citation omitted). The evidence demonstrated that
Oppenheimer headed up a finely tuned drug-distribution enterprise.
He worked with several confederates to package drugs for sale in
the three housing projects. Runners working in each project would
then deliver allotments of drugs to pushers for sale at retail.
The pushers (including Lugo) worked in ten to twelve hour shifts
— at the El Coral and Lagos de Blasina projects, the shifts ran
through the night, seven days a week. El Faro, however, was open
for business every day from 6:00 a.m. to midnight. At the end of
his shift, each pusher would turn his proceeds over to a runner,
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who would make certain that the money reached Oppenheimer. Because
each coconspirator's success "depend[ed] on the continued
existence and health of the drug distribution organization as a
whole," the jury safely could conclude that coconspirators across
projects were interdependent. United States v. Niemi, 579 F.3d
123 , 127 (1st Cir. 2009).
Last — but not least — the evidence supported a finding
that the participants overlapped. Such a finding does not require
a showing that every coconspirator knew his fellow coconspirators.
See United States v. Soto-Beníquez, 356 F.3d 1 , 19 (1st Cir. 2003)
(explaining that "government need not show that each conspirator
knew of or had contact with all other members," to prove existence
of only one conspiracy). Nor does it require a showing that the
same individuals were involved for the duration of the conspiracy.
See id. Showing that the enterprise revolved around a single,
identified core coconspirator is often sufficient. See Portela,
167 F.3d at 695.
In this case, the government's proof showed a classic
hub-and-spokes conspiracy, with Oppenheimer as the hub. In
particular, the evidence made pellucid Oppenheimer's pervasive
involvement as the core coconspirator.5 See id. Furthermore,
Lugo's brief on appeal admits as much. 5 It states, "the evidence at trial established that various drugs were sold at three separate housing projects in Carolina, Puerto Rico. David
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Oppenheimer was not the only person with ties to each project.
The trial testimony identified several persons who worked closely
with him at a central location to package drugs for sale at all
three housing projects. Some coconspirators discussed their shift
schedules and sales volume with coconspirators who worked
principally (or exclusively) at other projects. It was common
knowledge among the members of the drug ring that profits from
sales at all three locations increased the take for Oppenheimer
and his inner circle.
In an effort to blunt the force of this reasoning, Lugo
submits that the evidence cannot support a finding that he was
part of a single mega-conspiracy because there was no evidence
that he personally sold drugs in two of the three housing projects.
The fact that he did not sell drugs at all three sites does not
take Lugo very far. A defendant need not be personally involved
in all of a conspiracy's activities in order to be held criminally
responsible for the conspiracy's wrongdoing. See Soto-Beníquez,
356 F.3d at 19; United States v. Baines, 812 F.2d 41 , 42 (1st Cir.
1987) ("[A] conspiracy is like a train. When a party knowingly
steps aboard, he is part of the crew, and [he] assumes
conspirator's responsibility for the existing freight — or conduct
— regardless of whether he is aware of just what it is composed.").
Oppenheimer was in control of the drug activity at all three projects."
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That ends this aspect of the matter. The evidence,
viewed in the light most favorable to the verdict, amply supports
the jury's determination that Oppenheimer ran — and Lugo
participated in — a single mega-conspiracy. See Sepulveda, 15
F.3d at 1172.
Lugo soldiers on. Although his primary argument is
framed as a challenge to the sufficiency of the evidence, he
suggests in passing that the evidence varied from the indictment
(which charged him with participation in a single conspiracy). We
quickly dispose of this suggestion.
"A variance occurs when the crime charged remains
unaltered, but the evidence adduced at trial proves different facts
than those alleged in the indictment." United States v. Mangual-
Santiago, 562 F.3d 411 , 421 (1st Cir. 2009) (quoting United States
v. Yelaun, 541 F.3d 415 , 419 (1st Cir. 2008)). To the extent that
Lugo attempts to identify a variance between the indictment and
the trial evidence, he has failed to offer any developed
argumentation on a keystone issue: "[a] variance is grounds for
reversal only if it is prejudicial, that is, if it affects the
defendant's 'substantial rights.'" Id. (quoting United States v.
DiCicco, 439 F.3d 36 , 47 (1st Cir. 2006). Because Lugo makes no
such argument here, any claim of variance is waived. See United
States v. Zannino, 895 F.2d 1 , 17 (1st Cir. 1990) (observing that
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"issues adverted to in a perfunctory manner, unaccompanied by some
effort at developed argumentation, are deemed waived").
Lugo has one further shot in his sling. He assails the
district court's failure to give the jury a multiple-conspiracy
instruction explicitly describing the difference between a single
conspiracy and multiple conspiracies, including "specific factors
that [the jury] could consider" in making such a determination.
In the court below, Lugo did not request such an instruction.
Accordingly, our review is for plain error. See United States v.
Stierhoff, 549 F.3d 19 , 25 (1st Cir. 2008).
A multiple-conspiracy instruction is warranted "if, on
the evidence adduced at trial, a reasonable jury could find more
than one such illicit agreement, or could find an agreement
different from the one charged." Niemi, 579 F.3d at 126 (quoting
United States v. Balthazard, 360 F.3d 309 , 315 (1st Cir. 2004)).
To make out plain error, a defendant must show, among other things,
that the omission affected his substantial rights. See United
States v. Thomas, 895 F.2d 51 , 55 (1st Cir. 1990).
Here, however, the evidence supported the jury's single-
conspiracy finding, and Lugo has not explained how the absence of
a multiple-conspiracy instruction affected his substantial rights.
Nor can he make such a showing: the district court instructed the
jury that the government bore the burden of proving "that the
agreement specified in the indictment, and not some other agreement
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or agreements, existed between at least two people" and "that the
defendants willfully joined in that agreement." These
instructions made pellucid that the government had to prove not
only that an overall conspiracy existed but also that Lugo was a
part of it. If the jurors entertained any reasonable doubt that
Lugo was a part of the conspiracy charged, the instructions told
them that they must acquit. These clearly articulated instructions
protected Lugo from any prejudice. See, e.g., Mangual-Santiago,
562 F.3d at 424-25 (finding, in nearly identical circumstances,
that court's failure to give more particularized multiple-
conspiracy instruction did not prejudice defendant); Niemi, 579
F.3d at 126-27 (similar); Balthazard, 360 F.3d at 315-16 (similar).
We conclude, therefore, that the absence of a multiple-conspiracy
instruction did not amount to plain error.
III. CLAIMS OF SENTENCING ERROR
We next address the defendants' claims of sentencing
error. When a defendant raises both procedural and substantive
claims of sentencing error, we first address those claims that
allege procedural infirmities. See United States v. Martin, 520
F.3d 87 , 92 (1st Cir. 2008). We then address any arguments
relating to substantive reasonableness. See id.
Walker claims that the district court engaged in
improper factfinding when it calculated the drug quantities
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attributable to him for sentencing purposes. These claims are
twofold. First, he says that the sentencing court had no business
finding facts at all, since such factfinding is the exclusive
province of the jury. Second, he asserts that any judicial
factfinding at sentencing should have been supported by clear and
convincing evidence. We review these unpreserved claims for plain
error. See Duarte, 246 F.3d at 60.
At a criminal trial, the government bears the burden of
proving beyond a reasonable doubt any drug quantity charged in the
indictment as an element of the offense. See Alleyne v. United
States, 133 S. Ct. 2151 , 2155 (2013); United States v. Dunston,
851 F.3d 91 , 101 (1st Cir. 2017). In a conspiracy case, though,
a drug quantity charged in the indictment, found by the jury, and
described in the verdict is generally attributable to the
conspiracy as a whole. See United States v. Colón-Solís, 354 F.3d
101 , 103 (1st Cir. 2004). Quantities so found serve only to
establish the applicable statutory minimum and maximum sentences.
See Alleyne, 133 S. Ct. at 2155; Apprendi v. New Jersey, 530 U.S.
466 , 490 (2000).
This framework is augmented at sentencing. Because "a
defendant-specific determination of drug quantity [i]s a benchmark
for individualized sentencing under the guidelines," Dunston, 851
F.3d at 101 (alteration in original) (quoting Colón-Solís, 354
F.3d at 103), the sentencing court must conduct additional
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factfinding to determine the drug quantities "attributable to or
reasonably foreseeable by" a particular defendant, United States
v. Cintrón-Echautegui, 604 F.3d 1 , 5 (1st Cir. 2010). The
sentencing court's interstitial findings are bounded by the floor
and ceiling previously set by the jury's verdict, and they need
only be supported by a preponderance of the evidence. See id. at
At Walker's disposition hearing, the district court,
using a preponderance-of-the-evidence metric, found him
responsible for the equivalent of 12,885.56 kilograms of
marijuana. Walker maintains that this factfinding runs afoul of
both Alleyne and Apprendi. Walker is wrong.
We have said before — and today reaffirm — that "[n]o
. . . error occurs when a defendant's sentence is based . . . on
Guidelines considerations without changing the applicable
mandatory minimum" or maximum sentence. United States v. Ramírez-
Negrón, 751 F.3d 42 , 49 (1st Cir. 2014). Although any fact that
changes the applicable minimum or maximum sentence must be
submitted to a jury, this "does not mean that any fact that
influences judicial discretion must be found by a jury." Alleyne,
133 S. Ct. at 2163. Thus, the court below did not err when it
exercised its discretion to find facts needed to inform its
sentencing decision. See id.
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Walker's contention that the judicial factfinding should
have been supported by clear and convincing evidence, rather than
by preponderant evidence, is insupportable. We have repeatedly —
and recently — upheld the use of the preponderance standard at
sentencing. See, e.g., United States v. Munyenyezi, 781 F.3d 532 ,
544 (1st Cir.), cert. denied, 136 S. Ct. 214 (2015). Walker offers
nothing that would warrant a departure from this solid phalanx of
circuit precedent. Consequently, we apply the settled law of this
circuit and reject his claims of sentencing error.
Lugo challenges the district court's decision to hold
him responsible for what amounted to 1,328.41 kilograms of
marijuana.6 Before addressing his particular claims, we survey
the district court's methodology.
At sentencing, the court made a series of findings to
help determine the drug amounts attributable to Lugo. First, it
concluded that Lugo participated in the conspiracy for a total of
267 days. Next, it calculated the average amount of cocaine, crack
cocaine, and marijuana sold by the conspiracy in the course of a
typical day. The court then divided each figure by three to
6Additionally, Lugo attempts to incorporate Walker's claims of sentencing error by reference. See Fed. R. App. P. 28(i). To the extent that his perfunctory effort at incorporation suffices — a matter on which we take no view — that attempt fails for the same reasons that Walker's claims fail.
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approximate the amount of drugs sold daily at the El Faro housing
project (where Lugo worked). Finally, the court multiplied the
resulting values by 267 to approximate the amount of drugs that
Lugo sold during his periods of active participation in the
Lugo takes issue with several of these steps. First, he
questions the court's decision to hold him accountable for 267
days of conspiracy participation. Because Lugo raised this
argument below, we review the court's fact-based determination for
clear error. See Dunston, 851 F.3d at 101. Under this deferential
standard, the court's determination must stand unless, "after
assessing the whole of the record, [we are] firmly convinced that
a mistake has been made." Id.
The court arrived at its 267-day figure after reviewing
trial testimony and concluding that Lugo participated in the
Oppenheimer drug ring from October of 2006 to March of 2007 and
from January of 2011 through April of 2011. The record supports
this determination. At least one witness testified that he
regularly purchased marijuana from Lugo in "2006 up to the
beginning of 2007." The same witness testified that he observed
Lugo selling both cocaine and crack cocaine in 2007. In addition,
Before arriving at a total drug quantity, the court 7
converted the drug amounts for cocaine and crack cocaine to their marijuana equivalents and added them to the drug amount for marijuana. See USSG §2D1.1, cmt. n.8(B), (D).
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videotapes showed Lugo selling drugs in January, February, and
April of 2011.
Drug quantity determinations do not have to be exact.
See United States v. Platte, 577 F.3d 387 , 392 (1st Cir. 2009);
United States v. Rivera-Maldonado, 194 F.3d 224 , 228 (1st Cir.
1999). In this context, "a reasoned estimate will suffice."
United States v. Rodríguez, 731 F.3d 20 , 30-31 (1st Cir. 2013)
(quoting United States v. Laboy, 351 F.3d 578 , 584 (1st Cir.
2003)). Just as a sentencing court may estimate drug quantity,
so, too, it may make reasonable estimates regarding subsidiary
facts (such as the frequency or duration of a defendant's
participation in the criminal activity). See Cintrón-Echautegui,
604 F.3d at 7. The evidence here furnished sufficient support for
the court's determination of the duration of Lugo's involvement.
While the witnesses did not use precise dates, the court's estimate
was adequately rooted in the evidence. Drug dealers do not punch
time cards, and a sentencing court must be given some latitude to
extrapolate duration from anecdotal evidence. See Rodríguez, 731
F.3d at 31-32; United States v. Marquez, 699 F.3d 556 , 561 (1st
Lugo also asserts that the district court erred when it
did not credit his claim that he sold drugs only "one to two" times
per week. This claim, however, misses the mark. Where, as here,
a defendant has been convicted as a coconspirator, his relevant
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conduct for sentencing purposes "includes not only his own acts
and omissions but also the reasonably foreseeable acts and
omissions of other coconspirators in furtherance of the
conspiracy." Dunston, 851 F.3d at 101 (citing USSG
§1B1.3(a)(1)(B)). It was surely foreseeable to Lugo that his
coconspirators would continue to sell drugs at El Faro even on
days when Lugo himself was not actively selling.
Battling on, Lugo challenges the sentencing court's
decision to divide the drug sales attributable to the entire
conspiracy by three as a means of calculating the sales reasonably
attributable to the El Faro housing project. He insists that
"[t]here was no testimony that the drug sales at El Faro were as
high as those in the other housing projects." Given that
evidentiary gap, he argues that the court erred when it divided
the drug amounts evenly among the three projects.
One conspicuous fly in the ointment is that Lugo did not
make this argument below. Consequently, our review is for plain
error — and we discern none here. Lugo identifies no evidence
compelling the conclusion that the drug sales at El Faro were less
than the drug sales at either of the other projects. Given this
dearth of evidence, we cannot say that the district court plainly
erred in opting to attribute one-third of the gross sales to El
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Lugo next suggests that the district court erred when it
attributed 280 grams of crack cocaine to him. This suggestion,
too, surfaces for the first time on appeal, so review is for plain
The sentencing court settled on the disputed figure
because that figure represented the maximum amount for which the
jury found Lugo responsible at trial. In Lugo's view, the court
should have divided 280 grams by three, to account for the fact
that the jury's figure represented drug sales at all three
Lugo's argument misconceives the method that the court
used to calculate the amount of crack cocaine attributable to him.
When the court performed its calculations, it used the same
approach for crack cocaine that it used for the other drugs. In
the end, this yielded a drug weight of 787 grams — more than the
jury's 280-gram finding. With this in mind, the court found Lugo
responsible for 280 grams of crack cocaine — a finding that both
reflected the jury's verdict and avoided any conflict with the
applicable statutory range framed by that verdict. See Alleyne,
To be precise, the jury found Lugo responsible for aiding 8
and abetting the distribution of "28 grams or more, but less than 280 grams" of crack cocaine. Thus, the court should have found Lugo responsible for no more than 279 grams of crack cocaine, not 280 grams. But Lugo has not briefed this issue, and the error was manifestly harmless because the one-gram discrepancy did not change Lugo's GSR.
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133 S. Ct. at 2155; Apprendi, 530 U.S. at 490. Seen in this light,
there was no need to divide the 280-gram figure by three, and plain
error is plainly absent.
Finally, Lugo makes veiled references to a claim of
substantive unreasonableness and a claim that the district court
was predisposed to impose a particular sentence. Such references,
without more, are not adequate to preserve those claims for
appellate review. See Zannino, 895 F.2d at 17. As a result, we
deem them abandoned.
We need go no further. For the reasons elucidated above,
the judgments below are
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