162 F.3d 135 (1st Cir. 1998)
In 1994 and 1995, the Drug Enforcement Administration and the Framingham police investigated a crack cocaine distribution operation in the Beaver Park area of Framingham, Massachusetts.1 Miguel Rodriguez led the operation, with John Rosario and Hector Famania serving as his lieutenants.2 The operation involved cooking powder cocaine into crack, which Rosario and Famania then cut, measured, and packaged under Rodriguez's direction.3 Prospective buyers contacted Rodriguez, who directed them to distributors including Famania, Rosario, Jose Villafane, Pedro De Jesus, Luis Torres, and others.4
Juan Carvajal visited Famania's apartment on numerous occasions in 1995 and observed Famania selling twenty-dollar bags of crack daily.5 Carvajal twice saw Rodriguez give Famania an ounce of crack for distribution and received an ounce from Famania on two occasions.6 Rosario sold Rodriguez-supplied crack by spitting plastic bags containing the drug onto the ground for purchasers to retrieve.7 In January and February 1995, undercover officer Angela Aurelio purchased ounces of crack from Pedro De Jesus, who had obtained the drugs from Rodriguez.8
On July 10, 1995, informant Alicia Ellerbee purchased an ounce of crack from Rodriguez in a controlled buy; the package was wrapped in a Boston Globe subscription card bearing Famania's name and address.9 On July 27, 1995, Ellerbee made another controlled purchase from Rodriguez, with Jose Villafane delivering the crack.10 A grand jury indicted Rodriguez, De Jesus, and Villafane in September 1995, followed by a superseding indictment in December 1995 charging Rodriguez, Rosario, Famania, and others with conspiracy and related drug offenses.11 Carvajal, De Jesus, and Villafane pled guilty, while Rodriguez, Rosario, and Famania proceeded to trial.12
Following a jury trial, Rodriguez, Rosario, and Famania were convicted on all counts.13 Rodriguez received a sentence of life imprisonment, Rosario 262 months, and Famania 235 months.14 The defendants appealed their convictions and sentences to the United States Court of Appeals for the First Circuit.15
Whether sufficient evidence supported Rodriguez's conviction for engaging in a continuing criminal enterprise?16
A conviction under 21 U.S.C. § 848 for engaging in a continuing criminal enterprise requires proof beyond a reasonable doubt that the defendant committed a felony drug offense.17 It also requires proof that the offense was part of a continuing series of such violations.18 The defendant must have acted in concert with five or more persons in relation to whom he acted as a supervisor, organizer, or manager.19 Finally, the defendant must have realized substantial income or other resources from the multiple operations.20
Yes. Rodriguez organized Rosario, Famania, Villafane, De Jesus, and Peto as subordinates who cut, packaged, and distributed crack under his direction in the Beaver Park operation.21 The evidence established that he derived substantial income from overseeing the sale of approximately $70,000 worth of drugs during the conspiracy period from December 1994 through September 1995.22
Sufficient evidence supported Rodriguez's conviction for engaging in a continuing criminal enterprise.23
Whether the district court abused its discretion in admitting evidence of Rosario's involvement in beating a suspected informant?24
Evidence of violent acts is admissible to prove a defendant's membership in and acceptance of the objectives of a drug-trafficking conspiracy when the acts are part of a campaign of intimidation to maintain discipline.25
No. The beating of the suspected informant occurred at Beaver Park in the summer of 1995 when Rosario and Rodriguez assaulted the man after he insisted on purchasing drugs.26 The district court properly found that the incident was part of a campaign of intimidation to further the conspiracy's interest in maintaining discipline.27 Four witnesses separately established Rosario's role as a distributor.28
The district court did not abuse its discretion in admitting evidence of Rosario's involvement in beating a suspected informant.29
Whether the district court abused its discretion in admitting testimony regarding Rosario's drug dealing?30
Testimony regarding a defendant's drug transactions is admissible under Federal Rule of Evidence 404(b) when the events fall within the time frame of the charged conspiracy and are not offered solely to prove character.31
No. Ellerbee testified that she saw Rosario spit a baggie of crack onto the ground in exchange for money between the summer of 1994 and September 1995, specifically around May 1995.32 This period fell squarely within the charged conspiracy.33 The district court properly rejected Rosario's claim that the evidence was unduly prejudicial given the corroborating testimony of four other witnesses.34
The district court did not abuse its discretion in admitting testimony regarding Rosario's drug dealing.35
Whether the district court abused its discretion in admitting the Boston Globe subscription card and related testimony against Famania?36
No. Agent Farley personally received the baggie of crack wrapped in the Boston Globe subscription card bearing Famania's name and address from Agent Russell five minutes after the July 10, 1995 controlled buy between Ellerbee and Rodriguez.39 The district court correctly ruled that any chain-of-custody concerns went to weight rather than admissibility.40
The district court did not abuse its discretion in admitting the Boston Globe subscription card and related testimony against Famania.41
Whether the district court's jury instructions on reasonable doubt violated the Constitution?42
No. The district court's instruction included the phrase that the jury must acquit if there is a real possibility the defendant is not guilty.45 The instruction was taken from the Federal Judicial Center pattern instruction.46 It correctly conveyed that a fanciful doubt is not a reasonable doubt.47 The instructions left the jury with an accurate impression of the presumption of innocence and the prosecution's substantial burden.48
The district court's jury instructions on reasonable doubt did not violate the Constitution.49
Whether the government violated its Brady obligations with respect to witnesses Nancy Muniz and Pedro De Jesus?50
No. Muniz's false testimony about her employment as a financial consultant rather than a prostitute was not material.54 The jury already knew she had lied to the grand jury about her past as a prostitute and supported a heroin addiction through prostitution.55 Her testimony was corroborated by five other witnesses.56 The government's nondisclosure of the section 851 notice to De Jesus was not a violation.57 Defendants already knew of his criminal history and motivation for leniency.58
The government did not violate its Brady obligations with respect to witnesses Nancy Muniz and Pedro De Jesus.59
Whether the district court abused its discretion in denying the defendants' request for an evidentiary hearing?60
No. The defendants offered only speculation that Muniz's perjury about her employment suggested additional lies.63 They provided no evidence contradicting the government's representation that all inducements to Carvajal and De Jesus had been disclosed.64 The district court properly denied the request without an evidentiary hearing.65
The district court did not abuse its discretion in denying the defendants' request for an evidentiary hearing.66
Whether the district court violated Rosario's rights by denying his motion to directly question the jury venire?74
No. The district court conducted voir dire itself, as permitted by Rule 24(a).77 At defense counsel's request the court asked the venire about possible prejudices against Hispanics.78 The court also asked whether any juror would give an edge to a white police officer's testimony over a Hispanic defendant's.79 This approach complied with the rule's requirement to permit supplemental inquiry.80
The district court did not violate Rosario's rights by denying his motion to directly question the jury venire.81
Whether the defendants' sentences violated their constitutional rights due to disparity with co-conspirators who pled guilty?82
A sentencing disparity between defendants who proceed to trial and those who plead guilty does not violate the Sixth Amendment right to a jury trial.83 It also does not violate the Due Process and Equal Protection Clauses when the disparity results from the government's permissible exercise of prosecutorial discretion in plea bargaining.84 The sentences must fall within the correctly calculated guidelines range.85
No. The district court attributed the full 5,000 grams of crack cocaine distributed by the conspiracy over 36 weeks to Rosario and Famania because they went to trial.86 The pleading defendants Carvajal, De Jesus, and Villafane were held responsible only for the smaller amounts they personally handled.87 This disparity, though substantial, is an inevitable and permissible consequence of encouraging guilty pleas under Corbitt v. New Jersey.88 It does not constitute an unconstitutional burden.89
The defendants' sentences did not violate their constitutional rights due to disparity with co-conspirators who pled guilty.90