United States v. LaNdróN–Class

• Citation: 696 F.3d 62
• Decision Date: 29 August 2012
• Docket Number: No. 10–2462.,10–2462.
• Parties: UNITED STATES, Appellee, v. Reynaldo LANDRÓN–CLASS, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

696 F.3d 62

UNITED STATES, Appellee,

v.Reynaldo LANDRÓN–CLASS, Defendant, Appellant.

No. 10–2462.

United States Court of Appeals, First Circuit.

Heard March 7, 2012.

Decided Aug. 29, 2012.

Rafael F. Castro Lang for appellant.

Scott H. Anderson, Assistant United States Attorney, with whom Rosa Emilia Rodriguez–Velez, United States Attorney, Nelson Pérez–Sosa and Thomas F. Klumper, Assistant United States Attorneys, were on brief, for appellee.

Before LYNCH, Chief Judge, SELYA and LIPEZ, Circuit Judges.

LIPEZ, Circuit Judge.

Appellant, Reynaldo Landrón–Class, was tried and convicted in the United States District Court for the District of Puerto Rico for his role in a scheme to illegally obtain and distribute prescription drugs. On appeal, Landrón–Class challenges his conviction on numerous grounds, including: 1) a pre-trial ruling during the voir dire, 2) evidentiary rulings made by the district court during his trial, 3) the court's decision not to order certain documents turned over to him as Jencks Act material, and 4) the denial of his motion for a judgment of acquittal under Federal Rule of Criminal Procedure 29. He also asserts multiple errors in the determination of his sentence.

We conclude that the district court did err in allowing testimony about the guilty pleas of appellant's former co-defendants; however, this error was harmless. Additionally, in resolving a claim of sentencing error, we join other circuits in holding that, in determining the appropriate sentence within the guidelines, or in varying from the guidelines, a sentencing court has discretion to consider the defendant's cooperation with the government as an 18 U.S.C. § 3553(a) factor, even if the government has not made a United States Sentencing Guidelines (“USSG”) § 5K1.1 motion for a downward departure.

Finding no reversible error in the district court's decisions, we affirm.

I.

We begin with an abbreviated version of the facts underlying this appeal, reserving for our analysis of appellant's individual arguments a more detailed description of the facts relevant to each. We present the facts in the light most favorable to the verdict. See United States v. Díaz, 670 F.3d 332, 337 (1st Cir.2012).

Appellant was originally indicted with twenty-one other defendants for his role in a conspiracy to possess and distribute approximately 435 kilograms of oxycodone and 278 kilograms of alprazolam from January 2005 to September 2007. He moved to dismiss the indictment, arguing that there was no single conspiracy among the various co-defendants. The district court denied this motion as moot after appellant was re-indicted, in September 2009, with just one other co-defendant, Miriam Daisy–Perez. This new indictment charged that the two co-defendants conspired to possess with intent to distribute approximately forty-four kilograms of oxycodone over the period January 2005 to September2007.¹ Specifically, appellant allegedly obtained, from a single doctor, at least 2,700 medically unnecessary prescriptions for oxycodone in his name and the names of others, and used these prescriptions to obtain oxycodone from various pharmacies.

Appellant was offered a deal by the government, whereby it would recommend a sentence of seventy months' incarceration if he pled guilty to the charges. He rejected this offer because of the disparity between the deal offered to him and that offered to other defendants involved in the same scheme.² Accordingly, appellant was tried before a jury in June 2010. Even though he had admitted the offense conduct during the government's investigation, appellant denied at trial his participation in the conspiracy and argued that he was factually innocent.

The primary government witness was Dr. Jose Victor Vázquez–Senti, from whom appellant obtained the prescriptions used in the scheme. Dr. Vázquez–Senti testified that appellant initially came to him as a patient in late 2004, complaining of back pain. However, after the treatment ended, Vázquez–Senti continued to supply prescriptions to appellant for a fee. Initially, appellant simply dictated the names that Vázquez–Senti used to write prescriptions. But, around December 2006, appellant provided five “patient” lists to Vázquez–Senti, each containing between six and fifty-six names and addresses. Appellant regularly called Vázquez–Senti to instruct the doctor to write new prescriptions in the names of individuals on the lists, and Vázquez–Senti subsequently delivered the prescriptions to appellant—about twenty each week. Generally, the prescriptions were filled at one of three pharmacies, and, over the course of the conspiracy, Vázquez–Senti wrote at least 2,700 medically unnecessary prescriptions for appellant's use.

The Drug Enforcement Administration (“DEA”) became aware of the unusual pattern of Vázquez–Senti's prescriptions and started an investigation. The DEA secured a wiretap of the doctor's phone and recorded calls in which the doctor and appellant discussed their activities, including the preparation of prescriptions and how best to obtain drugs from various pharmacies. The DEA eventually arrested appellant, Vázquez–Senti, and twenty other individuals, including owners of the pharmacies from which drugs were obtained and individuals who filled the prescriptions at the pharmacies. Excepting appellant, each of the other individuals indicted pled guilty to at least some of the charges against them.

At the conclusion of a four-day jury trial, appellant was found guilty of conspiracy to possess with intent to distribute 676.50 grams of oxycodone. The jury also found that the government was entitled to a forfeiture of $541,200, the estimated proceeds of the conspiracy. Appellant was sentenced to 240 months' incarceration, which was below the guidelines range, but the maximum sentence permitted by statute. This appeal followed.

II.

A. Pre-trial and Trial Rulings

1. Voir Dire of Potential Jurors

Appellant challenges two aspects of the district court's handling of the voir dire. He argues that it was error for the court to decline to ask potential jurors questions that he proposed concerning their legal use of prescription drugs, prior grand jury service, and general personality traits. He also argues that the court erred in failing to dismiss juror number 26 for cause because of a purported bias against drug users and the fact that she was the daughter of two attorneys—a retired judge and a former attorney with the Puerto Rico Department of Justice.

We review challenges to the trial court's voir dire of the jury under an abuse of discretion standard. United States v. Sherman, 551 F.3d 45, 49 (1st Cir.2008). We have noted that, “[b]ecause the trial court observes the demeanor and reactions of the prospective jurors, we review its determination of jury impartiality with ‘special deference.’ ” Id. at 51 (quoting United States v. Moreno Morales, 815 F.2d 725, 733 (1st Cir.1987)). Furthermore, a court “need not ... pose every voir dire question requested by a litigant. It is more than enough if the court covers the substance of the appropriate areas of concern by framing its own questions in its own words.” Id. (quoting Real v. Hogan, 828 F.2d 58, 62 (1st Cir.1987)) (internal quotation marks omitted).

Here, although the district court declined to give prospective jurors the questionnaire proposed by appellant, it noted that many questions included in the questionnaire were similar to the questions that it did ask prospective jurors. For example, it asked about experience with drugs and drug-related crimes, whether the prospective jurors had connections to law enforcement, either themselves or through friends and family members, and whether the prospective jurors felt that they would be able to presume appellant innocent. These questions were sufficient to probe for potential biases. It was not an abuse of discretion for the court to decline to ask the questions proposed by appellant.

The court also did not err in declining to strike juror number 26 for cause. After individual questioning of this juror, the court determined that she did not have a bias against drug users. Although the court also noted that the juror's father was a retired judge, it determined that this fact did not render her unfit for jury service, an unremarkable conclusion. As we have explained, “[t]here are few aspects of a jury trial where we would be less inclined to disturb a trial judge's exercise of discretion, absent clear abuse, than in ruling on challenges for cause in the empaneling of a jury.” United States v. Gonzalez–Soberal, 109 F.3d 64, 69–70 (1st Cir.1997) (internal quotation marks omitted). There was no abuse of discretion here.

2. Authentication of Prescriptions by Vázquez–Senti

Appellant's challenges to his conviction include preserved evidentiary objections, reviewable for abuse of discretion. United States v. Mare, 668 F.3d 35, 38 (1st Cir.2012). Of course, even if such an error occurred, it would not serve to overturn a conviction if it ultimately proved harmless. See United States v. Walker, 665 F.3d 212, 231–32 (1st Cir.2011). An error is harmless if we can conclude “with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error.” Id. at 231 (quoting Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)) (internal quotation marks omitted).

The district court admitted into evidence approximately 2,700 prescriptions written by Vázquez–Senti and seized by government agents from computers at the three different pharmacies from which appellant obtained drugs. They were admitted into evidence pursuant to Federal Rule of Evidence 901(b)(1), which allows authentication through testimony of a witness with knowledge of the nature of the item. The government provided a foundation for the prescriptions through testimony by Vázquez–Senti, who reported that he...