U.S. v. Tejeda

• Decision Date: 03 April 2007
• Docket Number: No. 06-1824.,06-1824.
• Citation: 481 F.3d 44
• Parties: UNITED STATES of America, Appellee, v. William TEJEDA, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

481 F.3d 44

UNITED STATES of America, Appellee, v. William TEJEDA, Defendant, Appellant.

No. 06-1824.

United States Court of Appeals, First Circuit.

Heard January 8, 2007.

Decided April 3, 2007.

David J. Apfel, with whom Jennifer W. Fischesser, William J. Trach, and Goodwin Procter LLP were on brief, for appellant.

Susan M. Poswistilo, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief, for appellee.

Before BOUDIN, Chief Judge, TORRUELLA and LYNCH, Circuit Judges.

LYNCH, Circuit Judge.

William Tejeda was convicted after a twelve-day jury trial of conspiracy to possess with intent to distribute cocaine base in the amount of 50 grams or more. Tejeda was a New York supplier of drugs for a Cape Cod drug ring. This criminal appeal attacks both Tejeda's conviction and the sentence imposed. The attack on the conviction is based largely on an incident in the courtroom in which a spectator made a throat-slitting gesture.

Four of Tejeda's co-conspirators pled guilty, and two, Amanda Eldridge and Desiree Alves, testified against him. Tejeda and a co-conspirator, Carmen Figueroa, went to trial; she testified, he did not. Both were convicted. Tejeda was sentenced to twenty years' imprisonment, five years of supervised release, and a special assessment of $100.

As to his conviction, Tejeda does not attack the sufficiency of the evidence. The evidence against him was extremely strong, a point discussed later. He does argue that the trial court committed two errors that deprived him of a fair trial and require his conviction be set aside. The first claim of error is that the court should have granted a mistrial when an older man sitting in the gallery of the courtroom on the first day of trial (and later possibly connected to defendant by the evidence) made a throat-slitting gesture. That gesture was seen by two jurors and discussed by them with other jurors. The second trial error alleged was that the court erred in not severing Tejeda's trial from co-defendant Figueroa's or bifurcating the trial so as to isolate the case against him.

Tejeda also attacks his sentence on the grounds that the district court erroneously relied on the Guidelines applicable to crack cocaine offenses and that the sentence was unreasonable.

Acknowledging the able advocacy on both sides, we affirm the conviction and sentence.

I.

The facts in evidence at the trial fairly establish the following.

From January 2003 through March 2004, Tejeda supplied crack cocaine to a drug distribution ring operating in Cape Cod, Massachusetts. Tejeda was based in New York; his address, ironically, was 1234 Boston Road, in the Bronx. The Cape Cod ring was headed by Manuel Mendes, a co-defendant, who operated the ring while imprisoned at the Plymouth County House of Correction. That imprisonment limited Mendes in his mobility and in his command operations, but it did not stop him. Mendes operated the drug ring by giving instructions to co-defendant Figueroa, and sometimes to co-defendant Alves, both of whom he was permitted to telephone. Figueroa, in turn, contacted Tejeda and the other conspirators.

On Mendes' instructions, testifying co-conspirator Amanda Eldridge drove to New York in January 2003, along with Carmen Figueroa and Desiree Alves, to pick up crack from Tejeda. Eldridge already knew Tejeda from prior drug transactions. She identified Tejeda in court and had done so in an earlier photo array. Eldridge testified that in New York she met with Tejeda alone in a red van, picked up the drugs, and returned to Cape Cod. Eldridge's testimony was corroborated by Alves, who testified that these drug trips to New York took place about every two weeks.

Eldridge testified that, under Mendes' direction, she made the trip to New York to pick up drugs from Tejeda every week or so for a four-month period. Eldridge then drove back to Cape Cod and gave the drugs to either Alves or Figueroa. Each time, Tejeda gave Eldridge disk-shaped packages containing crack cocaine. Eldridge also identified Tejeda's voice in a call recorded by the government. The recording captured Tejeda and Figueroa arranging a drug transaction for February 17, 2004 in New York.

The February 17, 2004 transaction went off as planned, as was established by the testimony of Alves and two drug enforcement officers who witnessed the event. Co-defendant Christopher Custer was the courier this time. Alves did not go on the trip, but she did give Custer the money to purchase the drugs the night before, and she received the drugs at her home in Yarmouth from Custer when he returned from his successful trip to New York.

The DEA had established surveillance over Tejeda's home in the Bronx and observed Custer's arrival and actions on February 17. Tejeda left his home and entered the red van. A short while later, Custer arrived, parked behind the van, and entered the van. Photographs of Tejeda at the scene of the February 17 deal were admitted into evidence at trial. Within approximately five minutes, Custer got back into his car and left. He was tracked by police as he drove back to Cape Cod and was seen entering Alves' home with a black bag and emerging without it.

The police made arrests immediately after observing another drug deal, this one on March 16, 2004. Custer, after again obtaining money on Cape Cod to pay for the crack, went to New York. Agents saw Tejeda leave the Boston Road address in the Bronx. Tejeda then got in a car, and police tracked the car to Manhattan. In Manhattan, an agent observed Custer on the same street as the car carrying Tejeda. A short time later, after losing sight of Custer, the agent saw Tejeda get out of the front passenger seat of the car, and Custer get out of the back passenger seat and into the front passenger seat of the car. The police thereafter stopped the car; in it were two disk-like objects, which later tested positive for cocaine base. That evening Tejeda was arrested.

The government's case rested primarily on this evidence, and not on the testimony of the non-pleading co-defendant, Figueroa.

II. Trial Error Claims

A. The Throat-Slitting Gesture and Fair Trial Rights

1. Facts And Procedural History

On the morning of the third day of trial, Friday, May 6, 2005, the government's witness was Lt. Balcom. During questioning, Lt. Balcom indicated that on one occasion he had observed some of the individuals in the courtroom in the red van. At the prosecutor's request, Lt. Balcom pointed out these people in the courtroom.

During the morning break, a juror reported privately to the court that she and another juror had seen one of the individuals identified by Lt. Balcom make a throat-slitting gesture on the second day of trial, Wednesday, May 4. After the break and outside of the presence of the jury, the court inquired and was told by defense counsel that the man in question was Tejeda's grandfather. The jury was never informed of this fact.

The court reported to counsel, outside the presence of the jury, that a juror had stated that she had observed Tejeda's grandfather making a throat-slitting gesture. The court then ordered the gesturer and his wife to leave the courthouse and barred them from the courthouse and the surrounding vicinity. At least some members of the jury were later informed of the court's order. On the record, the court described the man barred from the courtroom as an "obviously frail appearing, old man."

Tejeda and Figueroa both moved for mistrial. When the court discussed holding voir dire of the two jurors who reportedly had seen the gesture, Tejeda's counsel expressed concern that the proposed voir dire would only heighten the issue for the jury.

Before starting the trial again that Friday, the court said to the jurors:

A matter has been conveyed to . . . me and I have taken care of it completely. Put it out of your mind. It has nothing to do with this case. Have in mind, while the report is fully appropriate, indeed we want such a report, do not discuss the case among yourselves, the case now, in the jury room.

Tejeda did not object to the instruction, and the trial continued for the day. Later, several of the jurors, on query, said that the jury had complied with this instruction. Assuming that to be true, any discussion amongst the jurors occurred before the court dealt with the report of the gesture.

On Sunday, May 8, Tejeda submitted a written mistrial motion. On Monday, May 9, the court denied the motion but told the parties it would grant their request to voir dire the juror who had reported the gesture, Juror 11.

The court then individually questioned Juror 11. She said that she was concerned about the gesture but did not report it on the day she saw it. It was only after she heard the testimony of Lt. Balcom identifying the spectator as having been at the red van that she started to feel uncomfortable about what she had seen the spectator do two days earlier. After hearing Lt. Balcom's testimony on Friday morning, she reported the gesture to several of the other jurors, some of whom told her she should disclose it to the court, and so she did. The court had earlier instructed the jurors not to discuss the case.

When asked whether she had linked the individual making the gesture to any particular party in the case, Juror 11 answered that she didn't know whether the older gentleman and the lady who had been sitting with him had anything to do with a particular person or side. The juror stated that all she knew was that Lt. Balcom had testified to seeing one of them in the red van. While she recognized the public nature of the courtroom setting, she was concerned that people in the courtroom could know the names of the jurors. The court asked whether she could put the incident out of her mind when evaluating the case and be fair to all parties. She answered affirmatively, and the court, observing her, found her to be forthcoming. Tejeda again moved for...