U.S. v. Perez-Ruiz

• Citation: 353 F.3d 1
• Decision Date: 19 December 2003
• Docket Number: No. 02-1466.,02-1466.
• Parties: UNITED STATES of America, Appellee, v. Julio PEREZ-RUIZ, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

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353 F.3d 1

UNITED STATES of America, Appellee, v. Julio PEREZ-RUIZ, Defendant, Appellant.

No. 02-1466.

United States Court of Appeals, First Circuit.

Heard September 5, 2003.

Decided December 19, 2003.

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Bruce J. McGiverin, by appointment of the court, with whom Julio Pérez-Ruiz, pro se, was on brief, for appellant.

Thomas F. Klumper, Assistant United States Attorney, with whom H.S. Garcia, United States Attorney, and Sonia I. Torres, Chief, Criminal Division, were on brief, for appellee.

Before BOUDIN, Chief Judge, SELYA, Circuit Judge, and SILER,^* Senior Circuit Judge.

SELYA, Circuit Judge.

Defendant-appellant Julio Pérez-Ruiz, sometimes known by the sobriquet "Goyito," asks us to reverse his conviction for conspiracy to distribute narcotics or, in the alternative, to vacate his sentence. Although we discern no reversible error with regard to the conviction, we conclude that the district court sentenced the appellant to life imprisonment in violation of the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Because we cannot classify that error as harmless beyond a reasonable doubt, we vacate the sentence and remand for resentencing.

I. BACKGROUND

This appeal challenges a myriad of rulings. Accordingly, we offer a balanced account of the overall facts, consistent with record support. United States v. Piper, 298 F.3d 47, 50 (1st Cir.2002). We recount further facts relevant to particular claims in later sections of this opinion.

On June 29, 2000, a federal grand jury returned a superseding indictment against several persons. The indictment charged the appellant, inter alias, with participating in a long-running conspiracy to distribute multi-kilogram quantities of controlled substances. See 21 U.S.C. §§ 841(a)(1), 846. After much procedural skirmishing (the details of which need not concern us), the case went to trial.

Based on the trial testimony, the jury plausibly could have found that the appellant controlled a drug point in the Caracolas ward of Peñuelas, Puerto Rico. Witnesses testified that the appellant received narcotics from Francisco Zaeton-Pabon (known as "Paquito") and employed others to help him peddle the contraband at the drug point. The government presented evidence that the drug point was part of a larger drug-trafficking empire presided over by Miguel A. O'Connor-Colon (known as "La Cabra") and that La Cabra's organization dealt in a variety of controlled substances (including heroin, powdered cocaine, and crack cocaine). The government also presented evidence that the appellant participated in the murder of Saul Perez, an apostate drug dealer who had broken with La Cabra.

In due course, the jury found the appellant guilty of participating in the larger drug-trafficking conspiracy. The district court sentenced him to life imprisonment. This timely appeal ensued. In it, the appellant presses a salmagundi of arguments. Most of them — dealing with subjects as diverse as prejudicial variance, delayed discovery, improper vouching, and erroneous evidentiary rulings — need not detain us. We dispose of those flawed challenges in decussate fashion and then focus our attention on the appellant's more substantial arguments: (i) his claim that a government agent improperly bolstered the testimony of a key cooperating witness, and (ii) his claim of Apprendi error.

II. PREJUDICIAL VARIANCE

Although the appellant concedes that the jury instructions were proper and that the evidence, taken in the light most favorable to the government, permits a finding that he operated and controlled the Caracolas drug point, he insists that the evidence does not suffice to ground a finding, beyond a reasonable doubt, that this drug point was part of La Cabra's empire. On this basis, he argues that a material variance existed between the crime charged in the indictment (participating in La Cabra's master conspiracy) and the crime that the government actually succeeded in proving (participating in a more modest conspiracy). This claim requires us to determine whether a variance occurred and, if so, whether that variance prejudiced the appellant's substantial rights. See United States v. Arcadipane, 41 F.3d 1, 6 (1st Cir.1994); United States v. Khoury, 901 F.2d 948, 956 (11th Cir.1990).

When, as now, a defendant asserts a claim of variance premised on the notion that multiple conspiracies existed and that his activities were not part of the charged conspiracy, the initial question — and the only one that we need to reach here — is one of evidentiary sufficiency. United States v. Wihbey, 75 F.3d 761, 773-74 (1st Cir.1996). In conducting our review, we employ the same framework that we employ in connection with other sufficiency challenges in criminal cases: we "canvass the evidence (direct and circumstantial) in the light most agreeable to the prosecution and decide whether that evidence, including all plausible inferences extractable therefrom, enables a rational factfinder to conclude beyond a reasonable doubt that the defendant committed the charged crime." United States v. Noah, 130 F.3d 490, 494 (1st Cir.1997). Credibility issues must be resolved in favor of the verdict. See United States v. Alicea, 205 F.3d 480, 483 (1st Cir.2000). We must reject the appellant's claim as long as a plausible reading of the record supports the jury's implied finding that he knowingly participated in the charged conspiracy. United States v. Sepulveda, 15 F.3d 1161, 1173 (1st Cir.1993).

Courts typically look to the totality of the circumstances in determining whether the proof suffices to establish a single, overarching conspiracy. Relevant factors may include such things as "(1) the existence of a common purpose, such as selling drugs for profit, (2) the interdependency of various elements in the plan, such as whether the success of an individual's own drug transactions depends on the health and success of the drug trafficking network that supplies him, and (3) the degree of overlap among the participants." United States v. Soto-Beníquez, 350 F.3d 131, 160-61 (1st Cir.2003).

There is no cognizable variance here. The jury heard evidence that the appellant controlled the Caracolas drug point; that the drug point was located at the epicenter of La Cabra's sphere of influence; that Paquito (La Cabra's triggerman and a self-confessed member of the master conspiracy) supplied the appellant with narcotics; that the appellant accompanied Paquito during the assassination of Saul Perez (a murder committed to further the interests of the master conspiracy); and that the appellant frequently interacted with other members of La Cabra's team. At the very least, this evidence permitted a rational inference that the appellant's drug point was part and parcel of the master conspiracy. See United States v. LiCausi, 167 F.3d 36, 45 (1st Cir.1999) ("Whether a single conspiracy or a multiple conspiracy exists is, of course, a question of fact for the jury."); see generally United States v. Lara, 181 F.3d 183, 204 (1st Cir.1999) (stating that "[j]urors are entitled to draw reasonable inferences from proven facts"). Consequently, we hold that the jury reasonably could have concluded that the appellant and La Cabra shared a common purpose; that their operations had the requisite degree of interdependency; and that, therefore, the appellant's operation was a subset of La Cabra's master conspiracy. There was no variance.

III. FAILURE TO GRANT A CONTINUANCE

The appellant's claim that the lower court erred in declining to grant a continuance after the delayed disclosure of Brady/Giglio material is easily dispatched. The facts are as follows. The government's star witness, Joelle Irizarry, had been treated in the past at a Puerto Rican prison hospital. Apparently, the government had obtained Irizarry's prison medical records and disclosed them to a different defendant in a different case in which Irizarry was to appear as a witness. One of the lawyers in that case furnished a copy of the records to the appellant's attorney after the appellant's trial was under way. During the defense case, the attorney called the district court's attention to the records and claimed that the prosecution had intentionally withheld the mental health information contained therein. This improper withholding, the attorney alleged, abridged the appellant's constitutional rights. See Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (holding that the prosecution violates due process when it suppresses material evidence favorable to the accused); see also Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) (concluding that the nondisclosure of impeachment information falls within the Brady rubric).

Defense counsel requested additional time to inspect the records. Noting that they had been in counsel's possession for at least thirty-six hours, the district court denied the request. The court did, however, offer to allow the appellant to recall Irizarry for further cross-examination. The appellant eschewed that opportunity.

We review the district court's decision to deny a continuance for abuse of discretion. See United States v. Saccoccia, 58 F.3d 754, 770 (1st Cir.1995); United States v. Devin, 918 F.2d 280, 289 (1st Cir.1990). We are satisfied that no such abuse occurred in this case.

When Brady or Giglio material surfaces belatedly, "the critical inquiry is not why disclosure was delayed but whether the tardiness prevented defense counsel from employing the material to good effect." Devin, 918 F.2d at 290. According to the appellant, the delayed disclosure here, coupled with the trial court's refusal to grant a continuance, prevented him from pursuing a strategy to "explore, through cross examination or expert testimony, whether Irizarry suffered from...