U.S. v. Rodriguez-Rivera, 05-1428.

• Decision Date: 10 January 2007
• Docket Number: No. 05-1428.,05-1428.
• Citation: 473 F.3d 21
• Court: U.S. Court of Appeals — First Circuit
• Parties: UNITED STATES of America, Appellee, v. Omar RODRÍGUEZ-RIVERA, Defendant, Appellant.

473 F.3d 21

UNITED STATES of America, Appellee, v. Omar RODRÍGUEZ-RIVERA, Defendant, Appellant.

No. 05-1428.

United States Court of Appeals, First Circuit.

Heard November 2, 2006.

Decided January 10, 2007.

COPYRIGHT MATERIAL OMITTED

Jorge L. Armentos-Chervoni, for appellant.

Thomas F. Klumper, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez-Sosa, Appellate Chief, were on brief for appellee.

Before TORRUELLA, Circuit Judge, BALDOCK^*, Senior Circuit Judge, and HOWARD, Circuit Judge.

HOWARD, Circuit Judge.

Omar Rodríguez-Rivera appeals his conviction and sentence for his role in two robberies interfering with interstate commerce in violation of 18 U.S.C. § 1951(a). We affirm.

I.

Rodríguez was charged with participating in two separate conspiracies to commit robbery. His indictment alleged that he and two cohorts, Elin Lugo-Echevarria and Samuel Santos-Ortiz, conspired to rob, first, a bar and check-cashing business in Guayamo, Puerto Rico, and, second, a beer truck en route from San Juan, in the spring and summer of 2001. To provide the necessary context for Rodríguez's claims, we briefly survey the evidence adduced at trial.

In 2001, Rodríguez worked in Guayamo, at a bakery across the street from a bar and check-cashing business owned and operated by Juan Narbel Rivera-Vázquez. From the bakery, Rodríguez had occasion to observe Narbel arrive at his business every Thursday morning carrying a satchel of money. Rodríguez approached Lugo and Santos, two of his long-time friends, about taking advantage of this opportunity to rob Narbel. Rodríguez offered to provide a 9 mm pistol for use in the crime.

On the day of the robbery, Santos and Lugo drove together to the neighborhood where the bakery and check-cashing business were located. Santos was armed with the pistol Rodríguez had given him. Based on instructions from Rodríguez, Santos waited in the vehicle until Narbel arrived. Santos then entered the business and, in the course of wrestling the satchel away from Narbel, shot him several times. Santos and Lugo fled the scene in their car. Narbel died from his wounds.

Santos and Lugo met Rodríguez at his home later that day, where Santos returned the pistol to Rodríguez. Santos also gave Rodríguez between $2,000 and $2,500 from the approximately $10,000 in proceeds from the robbery. A few days later, Rodríguez asked Santos and Lugo for additional money to buy the silence of one of Rodríguez's co-workers at the bakery, Raul Rodríguez-Torres, whom Rodríguez had told of the plan to rob Narbel before it had been carried out and with whom he had discussed the crime after-wards. Santos and Lugo together gave Rodríguez $600 for this purpose, half of which he paid to Rodríguez-Torres.

Santos and Lugo saw each other often in the months following the robbery. On the morning of July 11, 2001, Santos called Lugo and asked him to go out with him for the day. Santos then arrived at Lugo's house, driving a minivan with a 9 mm pistol on one of the seats. Santos told Lugo that Rodríguez was the source of the gun-the same one, in fact, used in robbing Narbel. Santos also told Lugo that they were driving to San Juan that day to steal a truckload of beer, which Santos planned to sell for $30,000. Lugo dropped Santos off on the side of the expressway near Salinas, Puerto Rico, to wait for the beer truck to pass. Santos flagged down the truck while Lugo continued ahead in the minivan, exited the expressway, and parked at a roadside stand.

Lugo then followed the truck, now under Santos's control, to a vacant lot off the expressway, where the vehicles were joined by another minivan occupied by two men who had arranged to buy the stolen beer, known to Lugo as "Ricky" and "Colon." The trailer of beer was detached from the truck and left with Ricky and Colon, while Lugo followed Santos, still driving the truck, to a spot on the side of the road in Aguirre, Puerto Rico. There, Santos shot and killed the truck driver, José Vázquez-Feliciano, and abandoned the vehicle. Later that day, Santos and Lugo went to Salinas to meet Ricky, who paid Santos $15,000 for the beer. Rodríguez received $2,500 as his share of the money. He later gave approximately $2,000 to Guillermo Luis Rigual Almodovar, a co-worker Rodríguez had enlisted in an apparently unsuccessful attempt to find a buyer for the beer, and with whom he had discussed his involvement in the robbery of Narbel.

Santos and Lugo were indicted for their roles in the robberies in 2001 and 2002, respectively. Rodríguez, however, was not indicted until 2004. At that point, both Santos and Lugo had already pleaded guilty and been sentenced, though Santos had appealed his sentence and Lugo's case remained open pending his cooperation in the government's prosecution of Rodríguez.

Before trial, Rodríguez filed a motion seeking to compel, inter alia, discovery of the Santos and Lugo case files. Rodríguez asserted that this material was exculpatory because of the passage of nearly three years between the indictments of his alleged co-conspirators and his own. Though the motion was unopposed, the district court denied it except insofar as it sought information within the scope of Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). The court had also previously ordered the disclosure of Giglio material, together with a host of other discovery, as part of its scheduling order in the case. Rodríguez sought reconsideration of the order denying his discovery motion, which was denied.

At trial, Lugo served as the government's key witness to Rodríguez's role in the robberies, although the jury also heard testimony on that subject from both Rodríguez-Torres and Rigual. Santos did not testify. The jury found Rodríguez guilty on two counts of conspiring to commit robbery interfering with interstate commerce in violation of 18 U.S.C. § 1951(a). He was acquitted on charges of aiding and abetting those robberies and aiding and abetting the use of a firearm to commit them. The jury also completed special verdict forms, submitted in response to the Supreme Court's decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), indicating their finding beyond a reasonable doubt that both Narbel and Vázquez-Feliciano, who died in the robberies, had suffered permanent or life-threatening bodily injury-an aggravating factor under the sentencing guidelines.

Prior to the submission of the case to the jury, the government had requested jury interrogatories on a number of other potential enhancements to Rodríguez's sentence under the then-mandatory guidelines, including whether murders had occurred during the course of the robberies. While the district court refused to ask the jury about these factors because they had not been charged in the indictment, it determined that "the occurrence of bodily injury may reasonably be inferred" from the charges and therefore permitted a special verdict form on that issue.

Before Rodríguez was sentenced, however, the Supreme Court issued its decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), holding that the mandatory application of the sentencing guidelines was unconstitutional. Taking account of the murders of the robbery victims, the presentence report set Rodríguez's base offense level at 43, using the guideline for first-degree murder, rather than robbery. See U.S.S.G. § 2B3.1(c)(1) (2006) (cross-referencing id. § 2A1.1(a)). While this calculation called for a life sentence under the guidelines, Rodríguez faced a statutory maximum of twenty years on each count under 18 U.S.C. § 1951(a).

Rodríguez objected on the theory that his sentence could not be increased based on the murders of the robbery victims because the jury had not made any findings in that regard. He argued for a sentence in accordance with the base offense level under the guidelines, elevated only by the fact, as found by the jury, that the victims had suffered serious or life-threatening bodily injury. This calculation, adjusted for Rodríguez's conviction on multiple counts in accordance with U.S.S.G. § 3D1.4 (2006), would have resulted in an offense level of 28, for a guidelines range of 78-97 months.

The district court disagreed, reading Booker to authorize a sentence within the twenty-year range prescribed by 18 U.S.C. § 1951(a), fashioned with due regard for the sentencing factors enumerated in 18 U.S.C. § 3553(a). The court then sentenced Rodríguez to the twenty-year statutory maximum on each count, to be served consecutively, for a total of 480 months.

II.

Rodríguez makes three claims of error. First, he argues that the district court wrongfully denied him discovery into the government's files on his alleged co-conspirators. Second, he asserts that the district court denied him a fair trial by unduly interfering in the proceedings. Third, he challenges his sentence as imposed in violation of the due process and ex post facto clauses of the Constitution and, in any event, unreasonable. As set forth below, we reject these contentions.

A.

Rodríguez claims that the district court's refusal to compel the disclosure of his co-conspirators' files deprived him of his rights under Giglio and its progenitor, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Brady requires the prosecution, upon request, to produce material, exculpatory evidence, id. at 87, while Giglio recognizes that this evidence often includes any understandings or agreements as to future prosecution between the government and one of its witnesses. 405 U.S. at 155, 92 S.Ct. 763. Brady does not, however, establish any "`general constitutional right to discovery in a criminal case....'" United States v. Caro-Muniz, 406 F.3d 22, 29 (1st Cir.2005) (quoting Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977)). To establish a Brady violation...