U.S. v. Pacheco, 04-1882.
| Citation | 434 F.3d 106 |
| Decision Date | 19 January 2006 |
| Docket Number | No. 04-1882.,04-1882. |
| Parties | UNITED STATES of America, Appellee, v. Jason PACHECO, Defendant, Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (1st Circuit) |
Kimberly Homan, for appellant.
Cynthia A. Young, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief, for appellee.
Before Boudin, Chief Judge, Selya, Circuit Judge, and Stahl, Senior Circuit Judge.
This criminal appeal arises in an unorthodox procedural posture. The district court, after granting a midtrial "partial directed verdict" on a single-count indictment, sent the case to the jury. Once a guilty verdict had been returned, the court entered a judgment of conviction and vacated the partial directed verdict. The defendant objects to this sequence of events on both double jeopardy and due process grounds. Although we reject the defendant's double jeopardy claim, we nonetheless hold that his right to a fair trial was compromised. Accordingly, we vacate the judgment below and remand for a new trial on the original indictment.
The evidence, viewed favorably to the government's theory of the case, would have allowed the jury to find that Rafael Yeje-Cabrera headed a mammoth drug-trafficking ring. The organization purveyed large quantities of cocaine and marijuana in and around southeastern Massachusetts. At some point, a lengthy federal investigation ensued. The probe reached a crescendo on December 8, 2001, when a tractor-trailer carrying 260 kilograms of cocaine accidentally backed into a state police cruiser. See United States v. Yeje-Cabrera, 430 F.3d 1, 5-6 (1st Cir.2005) ().
The jury also could have found that defendant-appellant Jason Pacheco was a distributor for, and customer of, the organization. The government contended that he purchased cocaine from Yeje-Cabrera in increments up to one kilogram every few weeks for nearly two years and that he took part in other exchanges of money and drugs. During one incident highlighted by the government, a member of the drug ring "re-rocked" a kilogram of cocaine for the defendant and, acting at Yeje-Cabrera's direction, charged him a sharply discounted fee for this illicit service.
The evidence further showed that on December 13, 2001, a large cocaine transaction — involving all or some portion of a twenty-five kilogram cache — took place in the defendant's garage. Two cars arrived there around 5:30 p.m. The defendant indicated that he wanted the occupants "to leave right away," and he himself went outside several minutes later and began pacing between his house and the street. Yeje-Cabrera arrived about an hour afterwards and, around 7:00 p.m., everyone left. Officers stopped one of the departing cars and a search revealed $50,000 in cash hidden in a secret compartment. Although the officers discovered no cocaine, a drug dog alerted to one area of the car. When law enforcement agents later procured a warrant and searched the defendant's premises, they found a large sum of cash but no drugs.
On December 20, 2001, a federal grand jury indicted twenty-one individuals. The indictment contained four counts. Pacheco was named only in count 1, which charged him and the others with "conspir[ing] . . . with each other and with persons known and unknown to the Grand Jury, to possess with intent to distribute, and to distribute, more than 5 kilograms of cocaine" in violation of 21 U.S.C. §§ 841 and 846.
All of those accused, save six, pleaded guilty. One of the intransigent six died during the early stages of the proceedings. The defendant and the four remaining accused persons opted for trial. Because the court granted a severance, see Fed.R.Crim.P. 14, the defendant stood trial alone.
After the close of the government's case in chief, which included the testimony of three cooperating witnesses who had themselves been named in the indictment, the defense took the position that the government had proved, at most, that the defendant was a member of a small, peripheral conspiracy (not the master Yeje-Cabrera conspiracy charged in the indictment). Accordingly, the defendant moved for a directed verdict on the ground that "there [was] a prejudicial variance between the conduct alleged in the indictment and the proof offered at trial." The district court sensibly deferred ruling on the motion until the close of all the evidence. See Fed.R.Crim.P. 29(a).
The defendant presented evidence and, after both sides had rested, the court purported to grant a partial directed verdict because, on the government's "best evidence," the prosecution had proved only that the defendant was part of a small "spoke" conspiracy, not part of the large "hub" conspiracy headed by Yeje-Cabrera. As a result, no "reasonably instructed jury could find . . . that he was in on a conspiracy to gain 260 kilograms" of cocaine. At the same time, the court denied the defendant's companion motion for a required finding of not guilty.
In its jury instructions, the district court did not mention its narrowing construction of the charge against the defendant but, rather, provided a generic conspiracy instruction and a special verdict slip requiring a finding on drug quantity. The defendant objected in vain to the mismatch between the instructions and the court's earlier ruling (but did not suggest the possibility of a double jeopardy violation). The jury found the defendant guilty of conspiracy to possess with intent to distribute more than five kilograms of cocaine.
The defendant seasonably moved for a new trial, see Fed.R.Crim.P. 33(a), claiming, insofar as is relevant here, that the district court's jury instructions did not "sufficiently distinguish the separate and particular conspiracy for which the defendant was charged from that of the overall `Yeje-Cabrera' conspiracy." On August 5, 2003, the district court, with the motion for a new trial still pending, sentenced the defendant to a twelve-year incarcerative term. The court stated that it would withhold the entry of judgment until it resolved the pending motion. Something went awry, however, and the clerk entered judgment on January 23, 2004. It was not until a month later that the court denied the new trial motion.
The defendant immediately moved for reconsideration. The district court granted that motion and vacated its earlier order denying the new trial motion. At that time, the court tentatively concluded that its so-called partial directed verdict had created a variance between the indictment and the proof. The court also stated its belief "that the [partial directed verdict] order was erroneously entered" because the court had overlooked the government's evidence of the incident that transpired in the defendant's garage. The court announced that it was considering whether it could "take . . . back" that erroneous order.
On June 18, 2004, the district court issued an omnibus opinion in which it resolved sundry issues concerning the defendant and certain of his alleged coconspirators (who had been tried separately). As to the defendant, the court concluded that the thought process underlying its partial directed verdict order introduced a fatal variance into the trial, which impaired the defendant's substantial rights. See United States v. Green, 346 F.Supp.2d 259, 335-37 (D.Mass.2004). However, the court then ruled that the partial directed verdict was in error because the jury had before it evidence from which it reasonably could have found that the defendant was a member of the master Yeje-Cabrera conspiracy. See id. at 337-38. The court went on to determine that the jury had not been influenced by the erroneous ruling and that, in all events, the defendant had "waived any procedural argument that the Court [lacked the authority to] revisit the partial directed verdict order." Id. at 338. Consequently, the court vacated the so-called partial directed verdict, denied the defendant's motion for a new trial, and allowed the jury's verdict to stand. Id. This timely appeal followed.
The defendant mounts several challenges to his conviction and sentence, most of which (including assignments of error relating to the admission of evidence and aspects of the sentencing process) we need not reach. The centerpiece of his appeal is a claim that the sequence of events described above — the lower court's granting of the so-called partial directed verdict, its subsequent submission of the case to the jury, and its eventual rescission of its original ruling after the entry of judgment — violated the Double Jeopardy Clause. His fallback position is that the jury verdict cannot stand because the district court transgressed due process by denying him "a meaningful opportunity to present a complete defense." California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). To this, the defendant adds that the court constructively amended the indictment and/or created a material variance between the indictment and the proof, thus further prejudicing his rights. We first address the double jeopardy point and then turn to the fair trial issues.
The Fifth Amendment declares that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. The Double Jeopardy Clause encompasses three general protections: "it shields a defendant from a second prosecution for the same offense after either conviction or acquittal, and it also prohibits multiple punishments for the same offense." United States v. Morris, 99 F.3d 476, 478 (1st Cir.1996); see North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). In this instance, the defendant invokes the second protective branch; he claims that...
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