United States v. Rivera-Rodríguez

Decision Date04 August 2014
Docket Number11–1744.,Nos. 11–1689,s. 11–1689
PartiesUNITED STATES, Appellee, v. Carlos H. RIVERA–RODRÍGUEZ and Albert Mercado–Cruz, Defendants, Appellants.
CourtU.S. Court of Appeals — First Circuit

OPINION TEXT STARTS HERE

Michael Covington Bagge, with whom Rosa Emilia Rodríguez–Vélez, United States Attorney, and Nelson Pérez–Sosa and Thomas F. Klumper, Assistant United States Attorneys, were on brief, for appellee.

Rafael F. Castro Lang for appellant Carlos H. Rivera–Rodríguez and Guillermo A. Macari–Grillo for appellant Albert Mercado–Cruz.

Before THOMPSON, LIPEZ, and KAYATTA, Circuit Judges.

LIPEZ, Circuit Judge.

Appellants Carlos H. Rivera–Rodríguez and Albert Mercado–Cruz appeal their convictions and sentences on drug possession and distribution charges. Rivera–Rodríguez claims that the district court's improper questioning of witnesses and its handling of a dispute during closing arguments unfairly prejudiced the jury against him. He further alleges prosecutorial misconduct. Mercado–Cruz, through counsel and by way of a pro-se brief, alleges a number of errors relating to his conviction and sentencing, including a claim that the government's criminal history information should not have triggered a mandatory life sentence because it was not timely filed. See21 U.S.C. § 851(a).

After a close review of the record, we agree that Rivera–Rodríguez's conviction must be vacated due to the district court's improper questioning of witnesses and its intervention during closing arguments. We affirm Mercado–Cruz's conviction and sentence.

I.

Rivera–Rodríguez and Mercado–Cruz were among sixty-four codefendants charged with involvement in a conspiracy to distribute various types of illegal drugs and prescription medications for recreational use.1 They were the only two co-defendants who elected to stand trial rather than accept plea agreements.

Up to and including the first day of trial, Mercado–Cruz's counsel, Attorney Lincoln–San–Juan, attempted to persuade his client to accept a plea bargain that would have resulted in the government recommending a sentence of between seventy-seven and ninety-six months of imprisonment. On the day trial was scheduled to begin, the government sought to introduce an information pursuant to 21 U.S.C. § 851 to establish that Mercado–Cruz had prior drug convictions and was thus subject to a mandatory life sentence if convicted on Count One. 2 Lincoln–San–Juan asked the government to delay filing that information so that he could implore his client one final time to take the plea deal after informing him that he could face a mandatory life sentence. Mercado–Cruz elected to stand trial.

That same day, Mercado–Cruz complained that he was brought to court for trial wearing prison clothes. The court refused to continue the trial on that basis, explaining that it was the defendant's responsibility to supply his own alternate clothes. Trial then began with jury selection. The § 851 information was filed shortly thereafter during trial.

Trial began with testimony from a number of witnesses involved with the law enforcement investigation of a “drug point” in the Praxedes Santiago Public Housing Project. These witnesses testified to background information about the scope of the alleged conspiracy to distribute drugs there, but did not, aside from a brief identification of Mercado–Cruz, provide any evidence specifically tying the defendants to the conspiracy.3 To inculpate the defendants, particularly Rivera–Rodríguez, the government relied primarily on the testimony of two cooperating witnesses who had already pled guilty to their involvement in the drug conspiracy. During the questioning of those witnesses by the government, the court interjected its own inquiries about the plea agreements that required the cooperating witnessesto testify truthfully. If they did not, as the court emphasized through its questioning, there could be consequences for the cooperating witnesses, including charges for perjury, false statements, and obstruction of justice, as well as the imposition of sentences beyond the terms of the plea agreements.4

Multiple witnesses 5 testified to seeing Mercado–Cruz in possession of various drugs in and around the drug point in the Praxedes Santiago Public Housing Project. Two cooperating witnesses, Pedro Rodríguez Fernández, a/k/a Cunta, and Adalberto Torres Ocasio, a/k/a Marruecos, identified him as a seller of these illegal drugs. Marruecos also testified that Mercado–Cruz carried a firearm around the drug point. The police officer who arrested Mercado–Cruz testified to finding on his person at the time of arrest prescription pills in a bottle with the label torn off. The pills and the bottle were tested and entered into evidence against Mercado–Cruz.

Government witness José Montañez–Santos and defense witness Keila Flores–Ramos testified that Rivera–Rodríguez was not himself a drug user, but his son was a known addict who hung around the drug point. Cunta and Marruecos, the two cooperating witnesses, testified that Rivera–Rodríguez set up a lookout scheme to protect drug dealers by providing hand-held radios (or “scanners”) to paid lookouts posted at the entrance to the housing project who could then warn the sellers when the police were coming. Testifying in his own defense, Rivera–Rodríguez insisted that he interacted with drug dealers and others at the drug point only to prevent them from selling to his son. Apart from the cooperating witness testimony, the government introduced a hand-held radio into evidence that was similar, but not identical, to the ones Rivera–Rodríguez allegedly kept in his home and used to orchestrate the lookout scheme. No evidence was seized from Rivera–Rodríguez or his home.

The jury found Rivera–Rodríguez guilty on all counts and Mercado–Cruz guilty on Counts One, Three, and Four. At sentencing, the government offered to amend the § 851 information as to Mercado–Cruz in exchange for a waiver of his right to appeal, which would have had the effect of lowering the applicable mandatory minimum sentence to twenty years, rather than life. Mercado–Cruz refused the deal. The court sentenced him to the mandatory term of life imprisonment as to Count One and to two terms of 262 months' imprisonment as to Counts Three and Four, to be served concurrently.6 The court sentenced Rivera–Rodríguez to a term of 120 months' imprisonment as to each count to be served concurrently with each other. This timely appeal followed.

II.

A. Rivera–Rodríguez's Claims

1. The Court's Interventions
a. Legal Framework

It is well settled that the district court is more than a “mere moderator” in a federal jury trial. Quercia v. United States, 289 U.S. 466, 469, 53 S.Ct. 698, 77 L.Ed. 1321 (1933). Among other things, the judge

“has the prerogative, and at times the duty, of eliciting facts he deems necessary to the clear presentation of issues. To this end he may examine witnesses who testify, so long as he preserves an attitude of impartiality and guards against giving the jury an impression that the court believes the defendant is guilty.”

United States v. Paz Uribe, 891 F.2d 396, 400–401 (1st Cir.1989) (quoting Llach v. United States, 739 F.2d 1322, 1329–30 (8th Cir.1984)); see alsoFed.R.Evid. 614(b) (“The court may examine a witness regardless of who calls the witness.”). The law affords the trial court broad discretion for judicial interrogation. See 29 Charles Alan Wright & Victor James Gold, Federal Practice & Procedure § 6235 (1997).

Nonetheless, in questioning witnesses, as in all aspects of trial administration, the court must scrupulously avoid any appearance of partiality, lest it run afoul of the maxim that [p]rosecution and judgment are two quite separate functions in the administration of justice; they must not merge.’ United States v. Norris, 873 F.2d 1519, 1527 (D.C.Cir.1989) (quoting United States v. Marzano, 149 F.2d 923, 926 (2d Cir.1945) (alteration in original)). Each judicial intervention raises the possibility that the jury will perceive the court as biased toward one party or another. See Starr v. United States, 153 U.S. 614, 626, 14 S.Ct. 919, 38 L.Ed. 841 (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.”). To determine whether the jury would perceive bias, we often must examine each intervention in the context of the trial as a whole. See United States v. Polito, 856 F.2d 414, 418 (1st Cir.1988).

Where, as here, a convicted defendant claims that the trial court overstepped its bounds and gave an appearance of judicial bias that requires a new trial, we consider whether the comments were improper and, if so, whether the complaining party can show serious prejudice.’ United States v. Ayala–Vazquez, 751 F.3d 1, 24 (1st Cir.2014) (quoting United States v. DeCologero, 530 F.3d 36, 56 (1st Cir.2008)); see also Logue v. Dore, 103 F.3d 1040, 1045 (1st Cir.1997) (“An inquiry into the judge's conduct of the trial necessarily turns on the question of whether the complaining party can show serious prejudice.”). This requirement that the defendant demonstrate “serious prejudice” applies even when the defendant has made contemporaneous objections to the interventions of the trial court and has persuaded the reviewing court that those interventions gave the appearance of judicial bias. The demonstration of the appearance of judicial bias is akin to a showing of trial error. Cf. United States v. Ofray–Campos, 534 F.3d 1, 33 (1st Cir.2008).

There then remains the question of prejudice linked to the appearance of bias. Ordinarily, if there are preserved objections to trial error in a criminal case (such as errors in evidentiary rulings or jury instructions), the government has the burden of demonstrating that the errors were not prejudicial. See, e.g., United States v. Jiménez...

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    ...by determining whether the trial court's instruction, in context, could be so understood by the jurors. Cf. United States v. Rivera-Rodríguez , 761 F.3d 105, 120–23 (1st Cir. 2014) (reviewing the record to determine if the trial judge's interventions created the appearance of bias). Toward ......
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    ...F.3d at 560.Finally, we add that even if the questions did mistakenly give the jury an impression of bias, cf. United States v. Rivera–Rodríguez, 761 F.3d 105, 121 (1st Cir.2014), any prejudice was cured by the district court in its closing instructions, where it specifically instructed the......
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