United States v. Walker-Couvertier, 15-1261
| Decision Date | 15 June 2017 |
| Docket Number | No. 15-1261, No. 15-1267,15-1261 |
| Citation | 860 F.3d 1 |
| Parties | UNITED STATES of America, Appellee, v. Abraham WALKER-COUVERTIER, Defendant, Appellant. United States of America, Appellee, v. Dean Lugo-Díaz, Defendant, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
Ines de Crombrugghe McGillion , with whom Ines McGillion Law Offices, PLLC was on brief, for appellant Walker-Couvertier.
Allison J. Koury , Wayland, MA, for appellant Lugo-Díaz.
Finnuala K. Tessier , Attorney, Appellate Section, Criminal Division, United States Department of Justice, with whom Kenneth A. Blanco , Acting Assistant Attorney General, Trevor N. McFadden , Acting Principal Deputy Assistant Attorney General, Rosa Emilia Rodríguez-Vélez , United States Attorney, and José A. Contreras , Assistant United States Attorney, were on brief, for appellee.
Before Torruella, Selya and Lynch, Circuit Judges.
In these consolidated criminal appeals, the defendants—represented by newly appointed counsel—offer up a salmagundi of arguments. Virtually all of these arguments were either forfeited or waived in the court below. Attempting to reinvent a case on appeal is a tactic that very rarely works—and it does not work here. After careful consideration, we conclude that none of the components of the defendants' asseverational array withstands scrutiny under the largely inhospitable standards of review that apply. Consequently, we affirm the defendants' convictions and sentences.
We start with a bird's-eye view of the facts—recited in the light most favorable to the jury's verdict, see United States v. Sepulveda , 15 F.3d 1161, 1172 (1st Cir. 1993) —and the travel of the case.
In 2012, agents of the Bureau of Alcohol, Tobacco, Firearms and Explosives arrested dozens of members of a sprawling drug-trafficking ring operating mostly out of three public housing complexes in Carolina, Puerto Rico (El Coral, Lagos de Blasina, and El Faro). David Oppenheimer-Torres (Oppenheimer), who headed this drug ring, typically hired project residents to package and sell various kinds of drugs to fellow inhabitants of their communities. Many of Oppenheimer's associates carried firearms and used violence to carry out the drug ring's objectives.
Defendant-appellant Abraham Walker-Couvertier (Walker) toiled as a runner, responsible for delivering drugs to pushers at the three housing projects. He also served as an enforcer for the drug ring and sold drugs at the El Coral project. Walker participated in the conspiracy from 2006 to 2010. Defendant-appellant Dean Lugo-Díaz (Lugo) worked as a seller at the El Faro project. He was an active participant in the drug ring's business in two different time frames: for a period of time between late 2006 and early 2007 and again for a period of several months in early 2011.
In May of 2012, a federal grand jury returned a six-count indictment against Walker, Lugo, and seventy-two other individuals allegedly involved in the Oppenheimer drug ring. As relevant here, the indictment charged the defendants with conspiring to distribute and possess with intent to distribute specified amounts of heroin, cocaine, crack cocaine, and marijuana within 1,000 feet of a public housing facility (count one). See 21 U.S.C. §§ 841(a)(1), 846, 860. The indictment also charged the defendants with aiding and abetting the distribution and possession of the same drugs (counts two through five). See 18 U.S.C. § 2 ; 21 U.S.C. §§ 841(a)(1), 860. Walker was separately charged with carrying a firearm during and in relation to a drug-trafficking crime (count six). See 18 U.S.C. § 924(c)(1)(A).
Of all the defendants, only Walker and Lugo opted to maintain their innocence. During the eight-day trial, the jury heard testimony from cooperating witnesses and police officers and viewed videotape and documentary evidence. At the close of the government's case-in-chief, Walker and Lugo each moved for judgment of acquittal. See Fed. R. Crim. P. 29(a). The court denied both motions, save that it granted Lugo's motion as to the charge of aiding and abetting the possession with intent to distribute heroin. The defendants unsuccessfully renewed their sufficiency challenges at the close of all the evidence.
The case went to the jury, which found both defendants guilty of conspiring to possess with intent to distribute at least one kilogram of heroin, five kilograms of cocaine, 280 grams of crack cocaine, and 100 kilograms of marijuana, all within 1,000 feet of a public housing facility. It also found both defendants guilty of aiding and abetting the possession with intent to distribute between 500 grams and five kilograms of cocaine and between twenty-eight and 280 grams of crack cocaine. Both defendants were found guilty of aiding and abetting the possession with intent to distribute marijuana within 1,000 feet of a public housing facility (Walker was found responsible for more than 100 kilograms, and Lugo was found responsible for between five and 100 kilograms). Walker also was found guilty of carrying a firearm during and in relation to a drug-trafficking crime. Finally, the jury acquitted Walker of aiding and abetting the possession with intent to distribute heroin.
Lugo—but not Walker—renewed his motion for judgment of acquittal after the jury rendered its verdict. See Fed. R. Crim. P. 29(c). The district court denied the motion, see United States v. Lugo Díaz , 80 F.Supp.3d 341, 360 (D.P.R. 2015), and ordered the probation department to prepare a presentence investigation report for each defendant.
In cases involving multiple types of drugs, drug quantities are converted into their marijuana equivalents and added together to aid in the calculation of the applicable guideline sentencing range (GSR). See USSG § 2D1.1, cmt. n.8(B), (D). At Walker's disposition hearing, the court found him responsible for what amounted to 12,885.56 kilograms of marijuana and set his GSR at 188 to 235 months. It sentenced him to concurrent 192-month terms of immurement on the drug counts and a consecutive 60-month term of immurement on the firearms count. At Lugo's disposition hearing, the court found him responsible for the equivalent of 1,328.41 kilograms of marijuana and set his GSR at 121 to 151 months. It sentenced him to concurrent 121-month terms of immurement on the various counts of conviction. These timely appeals followed.
The defendants have advanced arguments that implicate both their convictions and their sentences. We deal first with their conviction-related claims, taking them in an order that roughly parallels the proceedings below.
Lugo challenges the timeliness of his prosecution, insisting that his initial period of participation in the conspiracy—which ran from late 2006 to early 2007—is beyond the applicable five-year statute of limitations. See 18 U.S.C. § 3282. Since Lugo raises this argument for the first time on appeal, our review would normally be for plain error. See United States v. Olano , 507 U.S. 725, 731-32, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Here, however, precedent precludes any review at all.
The Supreme Court recently has held that a defendant can never successfully pursue a statute-of-limitations defense for the first time on appeal. See Musacchio v. United States , ––– U.S. ––––, 136 S.Ct. 709, 716-18, 193 L.Ed.2d 639 (2016). The Court reasoned that the statute of limitations becomes part of a case only if the defendant raises it as a defense in the district court. See id. at 717-18. If the defendant fails to do so, the limitations defense never "become[s] part of the case and the Government does not otherwise have the burden of proving that it filed a timely indictment." Id. at 718. In such circumstances, a district court's failure to consider the timeliness of the charge can never be error. See id.
So it is here. Lugo did not question the timeliness of his prosecution below. Thus, the district court's failure to consider that issue was not error. See id.
Both Walker and Lugo challenge the constitutionality of the requirement, as applied in the District of Puerto Rico, that jurors be proficient in English. The requirement itself is statutory in nature: Congress has provided that jurors who serve in federal court trials must be able to read, write, and understand English with at least minimal proficiency. See 28 U.S.C. § 1865(b)(2)-(3). The defendants argue that, when applied in Puerto Rico (where Spanish speakers predominate), this requirement abridges the defendants' right to a trial by a jury comprising a fair cross-section of the community. See Duren v. Missouri , 439 U.S. 357, 360, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979) ; Taylor v. Louisiana , 419 U.S. 522, 526-27, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975).
This claim was not advanced below, and it is subject to plain error review. See United States v. Duarte , 246 F.3d 56, 60 (1st Cir. 2001).
The English proficiency requirement, on its face, puts in place a sensible modality for the conduct of trials in federal courts. Not surprisingly, this requirement has survived a steady stream of attacks in this circuit. See , e.g. , United States v. De La Paz-Rentas , 613 F.3d 18, 24 (1st Cir. 2010) ; United States v. Escobar-de Jesus , 187 F.3d 148, 166 (1st Cir. 1999) ; United States v. Flores-Rivera , 56 F.3d 319, 326 (1st Cir. 1995). These decisions bring into play the law of the circuit doctrine, which confirms that, in a multi-panel circuit, a new panel is "bound by prior panel decisions that are closely on point." San Juan Cable LLC v. P.R. Tel. Co. , 612 F.3d 25, 33 (1st Cir. 2010).
Only a handful of narrow exceptions to this doctrine exist. These exceptions include "the occurrence of a controlling intervening event (e.g., a Supreme Court opinion on the point; a ruling of the circuit, sitting en banc; or a statutory overruling) or, in extremely rare circumstances, where non-controlling but persuasive ...
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