United States v. Valdivia

• Citation: 88 Fed. R. Evid. Serv. 559,680 F.3d 33
• Decision Date: 16 May 2012
• Docket Number: No. 08–1547.,08–1547.
• Parties: UNITED STATES of America, Appellee, v. Jose VALDIVIA, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

680 F.3d 33

88 Fed. R. Evid. Serv. 559

UNITED STATES of America, Appellee,

v.Jose VALDIVIA, Defendant, Appellant.

No. 08–1547.

United States Court of Appeals,First Circuit.

Heard March 10, 2011.

Decided May 16, 2012.

Rachel Brill, for appellant.

Warren Vazquez, with whom Rosa Emilia Rodriguez–Velez, United States Attorney, Nelson Pérez–Sosa, Assistant United States Attorney, Chief, Appellate Division and Thomas F. Klumper, Assistant United States Attorney, were on brief, for the appellee.

Before LIPEZ, SILER ^* and HOWARD, Circuit Judges.

HOWARD, Circuit Judge.

Following a jury trial, defendant-appellant José Valdivia was convicted of conspiracy to possess with intent to distribute one or more kilograms of heroin, 21 U.S.C. §§ 841, 846, and conspiracy to import one or more kilograms of heroin into the United States, 21 U.S.C. §§ 952(a), 963, for which he was sentenced to 210 months' imprisonment. On appeal, Valdivia contends that the district court committed a litany of errors in (i) denying his motion to dismiss pursuant to the Speedy Trial Act; (ii) making inappropriate comments during trial and providing the jury with misleading instructions; (iii) permitting the government to present inadmissible hearsay and improper overview testimony; (iv) allowing a government fact witness to render expert testimony without the requisite qualification and advance notice; (v) denying multiple requests to suppress foreign wiretap evidence; and (vi) improperly applying the guidelines during sentencing. After careful consideration of Valdivia's claims, we affirm the judgment below.

I. Background

Drawing from the trial record, and excluding facts the significance of which may depend on the nature of the claim being raised, we recount the relevant factual background in the light most favorable to the verdict. United States v. Gonzalez–Ramirez, 561 F.3d 22, 24 (1st Cir.2009). Due to the fact-specific nature of Valdivia's array of claims, we reserve additional factual detail for the analysis that follows.

Between October 9, 2001 and April 30, 2003, Valdivia played an integral role in facilitating the distribution efforts of a substantial Aruba-based drug trafficking organization led by one José De Sousa. The scheme, insofar as concerns the prosecution of Valdivia, was relatively simple. De Sousa procured large shipments of heroin from Venezuela and Colombia, significant portions of which were diverted to Valdivia for distribution in Puerto Rico. The drugs were transferred in either of two ways: by strapping, swallowing, or otherwise affixing bags to traveling couriers; or by employing cruise line employees to deliver bicycles, the tires of which were laden with contraband. Valdivia, or his purported right-hand man, Carlos Pabón, obtained the deliveries and arranged for their sale and disbursement throughout the greater San Juan, Puerto Rico area. An associate of De Sousa—typically his close confederate Jeffrey Grueninger—would then make bi-monthly trips to collect the drug proceeds from Valdivia or Pabón. Grueninger, who testified for the government at Valdivia's trial, estimated that over the course of approximately eighteen months, Valdivia received upwards of 120–125 kilograms of heroin from De Sousa, at an estimated total street value of roughly $5 million.

The operation began to unravel in October 2001, when Giovani Castro—a drug courier for De Sousa, and later a key government witness at Valdivia's trial—was seized in the San Juan airport, arriving from Aruba with approximately one kilogram of heroin strapped to his legs. Also discovered in his possession was a piece of paper containing two phone numbers—both annotated with the subscript “José”—which Castro claimed were provided to him by José Valdivia in order to arrange delivery of the drugs. A review of the phone records revealed that one of the numbers, while registered to a female subscriber, retained the user name of “José Valdivia.”

Shortly after Castro's seizure, Aruban authorities initiated an investigation of the De Sousa drug network. They obtained approval from an Aruban court to wiretap De Sousa's telephones, resulting in the recording of several incriminating conversations between, among others, De Sousa, Grueninger, Valdivia, and Pabón. In January 2003, Grueninger was seized at the Miami International Airport with more than $27,000 in U.S. currency. A few months later De Sousa was arrested, and a subsequent search of his home by Aruban authorities yielded in excess of thirteen kilograms of heroin.

Valdivia was not long to follow; arrested in Puerto Rico on November 18, 2003, he was charged in a two-count criminal complaint with conspiracy to possess with intent to distribute, and import into the United States, one kilogram or more of heroin in violation of 21 U.S.C. §§ 841, 846, 952(a), and 963. A protracted pretrial period ensued, during which both sides filed numerous motions, requested a host of conferences, and engaged in an extended series of unfruitful plea negotiations. Ultimately, at the conclusion of a twelve-day trial that commenced on February 6, 2006, Valdivia was convicted on both counts. This timely appeal followed.

II. Analysis

A. Speedy Trial Act

Valdivia first challenges the district court's denial of his motion to dismiss pursuant to the Speedy Trial Act (STA).¹ Ordinarily we review such a denial de novo as to legal rulings and for clear error as to factual findings. United States v. Maxwell, 351 F.3d 35, 37 (1st Cir.2003). Here, however, although the parties wage a spirited battle over the applicability of the STA, we conclude in the end that Valdivia's STA claim has been waived, or at a minimum, forfeited.

The Speedy Trial Act requires that a criminal defendant's trial commence within seventy days from the filing of the information or indictment, or from the date of the defendant's initial appearance, whichever occurs later. 18 U.S.C. § 3161(c)(1). Failure to begin the trial within such time shall, upon motion of the defendant, result in dismissal of the charging instrument either with or without prejudice. Id. § 3162(a)(2). The Act, however, excepts certain periods of delay from the STA's seventy-day clock. Two such exclusions hold particular relevance for this appeal.

The first, set forth in 18 U.S.C. § 3161(h)(1), requires the automatic exclusion of “[a]ny period of delay resulting from other proceedings concerning the defendant, including but not limited to ” eight enumerated subcategories of proceedings.²Id. (emphasis added). Although § 3161(h)(1) exclusions often fall within the eight specifically listed subcategories, various non-enumerated delays have also been held to be automatically excluded by virtue of the non-limiting “other proceedings” clause. See, e.g., United States v. Anello, 765 F.2d 253, 256 (1st Cir.1985) (holding that time spent engagingin collateral proceedings before another district judge attacking the lawfulness of grand jury selection procedures constituted “other proceedings”). The “other proceedings” language, however, is not a carte blanche for post-hoc determinations of excludability. In discerning whether a non-enumerated delay constitutes an “other proceeding,” and therefore warrants automatic exclusion under the STA, several courts have imposed, or at least implied, some limiting restrictions. See, e.g., United States v. Lucky, 569 F.3d 101, 107 (2d Cir.2009) (requiring at least some semblance of “formal judicial process[ ]” to constitute an “other proceeding”); see also Bloate v. United States, ––– U.S. ––––, 130 S.Ct. 1345, 176 L.Ed.2d 54 (2010) (holding that time granted to prepare pretrial motions is not automatically excludable as an “other proceeding” under § 3161(h)(1)).

The second relevant exclusion, § 3161(h)(7)³—commonly referred to as the “ends-of-justice” provision— permits the court to exclude delays resulting from continuances granted “on the basis of [the judge's] findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial.” 18 U.S.C. § 3161(h)(7)(A). As a permissive, rather than automatic, exclusion, the trial court is required to affirmatively “set[ ] forth, in the record of the case, either orally or in writing, its reasons” for granting an ends-of-justice continuance. Id. Such findings must be entered into the record by the time a district court rules on a defendant's motion to dismiss under the STA. Zedner v. United States, 547 U.S. 489, 507, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006).

In this case, 797 days elapsed between Valdivia's initial appearance on November 25, 2003, and the filing of his January 31, 2006 motion to dismiss on STA grounds. See United States v. Hood, 469 F.3d 7, 9 (1st Cir.2006) (“The [STA] clock ... stops the day the defendant files a motion to dismiss for lack of a speedy trial.”). Despite this labyrinth of pretrial activity, the parties agree that the bulk of this time is properly excluded from the STA calculation. They dispute the excludability of only two potentially dispositive spans of time, which can be broken down for present purposes as follows ⁴:

1. August 21, 2004—November 4, 2004

The district court held pretrial conferences on May 25, June 28, and August 6, 2004 to ascertain the status of ongoing plea negotiations. The minutes from the May 25 and June 28 conferences state, in relevant part, that the parties were granted thirty-day periods to finalize negotiations, and that the court would therefore “toll the speedy trial [act] until [the] next status conference.” The minutes from the August 6 conference also allude to ongoing plea discussions and grant the parties additional time to negotiate. In contrast to the minutes from the two previous conferences, however, the August minutes do not explicitly refer to the Speedy Trial Act, noting only that another status conference would be scheduled for September 23, 2004. On August 20, a pending interlocutory appeal...