APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Juan M. Pérez-Giménez, U.S. District Judge]
H. Manuel Hernández for José David Acosta-Colón.
Luis Rafael Rivera, with whom Luis Rafael Rivera Law Offices was on brief, for Jorge Fournier-Olavarría.
Carlos M. Calderón Garnier for Fernando L. Castillo-Morales.
Lydia Lizarribar-Masini for Alexis Rodríguez-Rodríguez.
Linda Backiel for Daniel Guzmán-Correa.
Myriam Yvette Fernández-González, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Juan Carlos Reyes-Ramos, Assistant United States Attorney, were on brief, for the United States.
Before Howard, Selya, and Thompson, Circuit Judges.
THOMPSON, Circuit Judge
Today we deal with the fallout from a deadly drug conspiracy in Puerto Rico involving a small army of criminals affiliated with "the Combo of Dr. Pila" (from now on, "the Combo"), a vicious gang named after a local housing project where members ran one of their many drug points. The five defendants whose joint trial led to these consolidated appeals are Acosta, Fournier, Castillo, Rodríguez, and Guzmán (their full names and aliases appear in our case caption).
A federal grand jury indicted each of them for conspiring to possess and distribute illegal drugs within 1, 000 feet of a public-housing facility. See 21 U.S.C. §§ 841, 846, and 860. The grand jury also indicted Fournier, Rodríguez, and Guzmán — but not Acosta and Castillo — for aiding and abetting the use or carrying of a firearm "during and in relation to" a drug crime or the possession of a firearm "in furtherance" of that crime. See 18 U.S.C. §§ 2 and 924(c)(1)(A). As shorthand, we shall refer to these counts as the drug-conspiracy count and the gun count.
Covering the period from January 2003 to July 2007, the indictment tagged Rodríguez and Guzmán as "leaders" in the Combo conspiracy, Acosta and Castillo as "sellers, " and Fournier as a "facilitator." These five were not the only ones indicted. Far from it. The grand jury also indicted 90 others on similar charges. But some of them copped pleas and agreed to testify for the government at our defendants' trial.
After hearing what these and other witnesses had to say, the jury filled out defendant-specific verdict forms, finding, essentially, each defendant guilty as charged and picking drug-weight ranges for the drugs each defendant conspired to possess and distribute — all while using a beyond-a-reasonable-doubt standard. The only slight wrinkle on the conviction front is that the jury found Acosta — and Acosta only — not guilty of participating in drug-related conspiracy activities within 1, 000 feet of a public-housing project. Later, the district judge imposed the following prison sentences: Acosta, 151 months on the drug-conspiracy count; Fournier, 78 months on the drug-conspiracy count plus 60 consecutive months on the gun count; Castillo, 120 months on the drug-conspiracy count; Rodríguez, 240 months on the drug-conspiracy count and 60 consecutive months on the gun count; and Guzmán, life on the drug-conspiracy count plus 60 consecutive months on the gun count.
Their appeals raise a staggering number of issues for review, though not all require our extended attention. To make our opinion manageable, we sort the issues out person by person, highlighting only those facts needed to put things in perspective. And for anyone wishing to know our ending up front, we note that when all is said and done we affirm across the board.
(1) Public Trial
Acosta starts things off by accusing the district judge of closing the courtroom to "the public" during the jury-selection process. The judge's action, he insists, denied him his Sixth Amendment right to a public trial. See U.S. Const. amend. VI. The backstory, at least so far as the record discloses, may be swiftly summarized.
Just before picking the jury, the district judge called counsel to sidebar. "I've been informed by my [court-security officer], " the judge said, "that the marshals informed him that three buses" that looked like "school buses" had "arrived here with persons who have T-shirts saying, 'Danny, we support you and we back you.'" "Danny" is defendant Guzmán. Anyway, "I'm not going to allow that, " the judge added, "and none of those persons are going to walk into the courtroom. They are going to be sent back[, ] and they are going to be —". Guzmán's counsel interrupted, saying, "I don't think that's appropriate. I had no idea. Send them back." At the risk of stating the obvious, context makes clear that counsel was calling the bus-riders' actions inappropriate, not the judge's ruling. And while the judge did not blame the lawyers, he did stress that he would not "tolerate any activity like that from any of the defendants." Tell "you[r] clients" to "behave, " he continued, or else "I'm going to exclude them from the courtroom, " install "a camera next" to "the holding cells, " and let them "watch the trial from there." "Very well, " Rodríguez's lawyer said, followed immediately by the judge's saying, "I'm going to order the marshals to remove them from the court."
Every criminal defendant has a Sixth-Amendment right to a public trial — a right designed to ensure a fundamentally fair process, since the public's very presence there helps keep judges, prosecutors, and witnesses on their toes. See, e.g., Waller v. Georgia, 467 U.S. 39, 46-47 (1984). But this public-trial right is not absolute and must be balanced against other important considerations in the administration of justice. See, e.g., id. at 45. For example, a judge may close the courtroom to all members of the public if he detects a compelling interest that needs protecting, considers sensible closure alternatives, ensures that closure is no broader than required, and makes findings sufficient to support his ruling. See, e.g., Presley v. Georgia, 558 U.S. 209, 213-14 (2010) (adding that when a defendant objects to a closure but does not offer alternatives, the judge must think of some on his own); Owens v. United States, 483 F.3d 48, 61-62 (1st Cir. 2007). On the other hand, a judge may order a partial courtroom closure — partial, because only some members of the public are kept out — if he pinpoints a substantial interest that needs protecting and then does the other things that we just listed. See, e.g., Bucci v. United States, 662 F.3d 18, 23 (1st Cir. 2011) (citing United States v. DeLuca, 137 F.3d 24, 34 (1st Cir. 1998)).
Acosta is having a devil of a time explaining what type of closure happened here. First he says that the judge barred "the public in general" during this phase of the trial, not just Guzmán's t-shirt-wearing supporters, apparently. Backing off a bit, then he says (emphasis ours) that at the very "least" the judge barred "defendants' families." Later still, he says that the judge "may" have barred his family, friends, and supporters (hardly a take-it-to-the-bank kind of statement). And he says all this without citing to the record.
Even pushing that failure aside, Acosta cannot overcome this problem: The judge put the exclusion matter squarely on the table for all the defendants' lawyers at sidebar, explaining what he intended to do with the t-shirt wearers. Each attorney had the chance to speak up. And attorneys for two of Acosta's codefendants did precisely that. But not Acosta's lawyer — he said nothing, despite the judge's placing the issue front and center and the other lawyers' voicing their opinion on this weighty subject. Fournier's attorney peeped no words of protest either, which is a problem for him, as we shall shortly see. Ultimately, then, given the particular facts of our case, we conclude that Acosta's lawyer had to know that he had to chime in on the exclusion issue — as others had — or else waive any claim. So his silence constitutes classic waiver, rather than forfeiture, which means that he cannot challenge the judge's ruling even as plain error. See, e.g., United States v. Christi, 682 F.3d 138, 142 (1st Cir. 2012) (Souter, J.) (citing, among other cases, Levine v. United States, 362 U.S. 610 (1960), which deems a courtroom-exclusion issue waived if counsel knew about the exclusion and "saw no disregard of a right" but now peddles the argument "as an afterthought on appeal").
(2) Alibi Witness
Acosta also challenges the judge's decision banning him from calling his wife as an alibi witness at trial. Here is what happened.
Shortly after the indictment issued, the government, relying on Fed. R. Crim. P. 12.1, demanded that each defendant give notice of any alibi defense that they intended to use. Rule 12.1(a) provides that a request like that "must state the time, date, and place of the alleged offense." And the version of the Rule in effect at the relevant time said that if the defendant wishes to raise an alibi defense, he must — within 10 (now 14) days — notify the government in writing of his intent to do so. And the government's request here stated:
The defendant committed the charged offense throughout the years 2003, 2004, 2005, 2006, and until July 2007, during the day and night hours, in or within the Dr. Pila Public Housing Project; and/or within the Ponce Housing Public Housing Project; the José M. Gándara Public Housing Project; the Portugues Public Housing Project; the Los Rosales Public Housing Project; and within the Municipalities of Ponce and Juana Díaz, Puerto Rico.
One of Acosta's then-codefendants, José Ríos Santiago ("Ríos"), who later pled guilty to the drug-conspiracy count, objected to the request, claiming that it was too broad because it covered four-plus years, every day and night. "If the government wants an alibi response, " Ríos wrote, it must list the "dates" and "time" showing when he supposedly "was personally involved in the conspiracy charged, " and not use the entire period covered in the indictment — then and only then, he added, will notice be "adequate" under the Rule. Acosta neither filed his own objection nor joined Ríos's. Eventually, the judge granted Ríos's objection, using language indicating that the ruling applied only to him: "ORDER as to Jose L. Rios-Santiago GRANT[ED]." The government never amended its request. And Acosta never mentioned during pretrial that he intended to call his wife as an alibi witness.
We fast-forward to August 25, 2009, the thirteenth day of trial. A confidential informant named Ulises Martínez Camacho ("Martínez") testified about his encounter with Acosta at a Combo-owned drug point — the "Coto Laurel" drug point — on July 11, 2007. Armed with police-supplied recording equipment and following the police's marching orders, Martínez had journeyed there to buy drugs and ended up handing Acosta $80 for 13 bags of crack. Acosta grabbed the cash but never came back with the drugs. Martínez immediately complained about what had happened to Acosta's brother, who in turn told defendant Rodríguez (who was also there at that time). Ticked off that "this guy" — meaning Acosta — had "done this again, " Rodríguez handled the problem by making sure that Martínez got what he had paid for. Importantly, Martínez had secretly caught nearly everything on audio and video tape — everything except a shot of Acosta, which Acosta's counsel brought out on cross-examination.
After the judge recessed for the day, Acosta's lawyer said that he wanted to call his client's wife as an alibi witness. She would testify that Acosta had been with her on July 11, counsel explained, celebrating her birthday far from the Coto Laurel drug point. But prosecutors told the judge that they had given the defense copies of the July 11 recording way back in August 2007 — nearly 2 years before trial. And one can hear people saying Acosta's name — "José David" or "David" — on the recordings, prosecutors stressed. They also said that they had given the defense a transcript of the audio recording in October 2007. And they noted that they had given the defense "Jencks Act" material regarding the July 11 transaction on August 1, 2009 — 6 days before trial started and 24 days before either Martínez's direct testimony or Acosta's in-court attempt to spring the alibi witness on the prosecution. For those uninitiated in the intricacies of federal criminal procedure, the Jencks Act entitles a criminal defendant to the "statement" of a government witness after the witness has testified on direct examination. See 18 U.S.C. § 3500(a).
Acosta's counsel did not deny any of this. Instead, he tells us, he tried to explain to the judge that, yes, prosecutors "may have" dropped off videos and transcripts of the July 11 doings, but he did not learn that Martínez would tie Acosta to the tape until he got the Jencks material about a week before trial. The judge was not impressed. "You had all that information" for such a long "time, " the judge found, yet you still did not give prosecutors the requisite notice so that they could "investigate" the alibi theory. "I have to consider the rights of your client, " the judge told Acosta's attorney. And "I did, " the judge said, reminding counsel too that he had ordered prosecutors to produce all Jencks-Act statements well "before the time that the government ha[d] to turn it over." Having concluded that the defense had failed to comply with Rule 12.1, the judge precluded Acosta's wife from testifying. See Fed. R. Crim. P. 12.1(e) (providing that "a court may exclude the testimony of any undisclosed" alibi witness if a party does not comply with the Rule's requirements).
Looking to undo the judge's ruling, Acosta protests that he did not have to give advance notice of his alibi witness because the prosecution had given him an inadequate Rule 12.1 request. But even if wrong on this point, Acosta contends that the judge should have used the power under Rule 12.1(d) to let the alibi witness testify anyway, particularly since the exclusion robbed him of his constitutional rights to present a meaningful defense, or so he says. Neither argument works.
Take the first one. At no time before dropping the alibi-witness bombshell midtrial did Acosta object to the government's Rule 12.1 request — despite then-codefendant Ríos's objection and the judge's ruling in Ríos's favor. Under these circumstances, Acosta has waived the argument. See, e.g., United States v. Valerio, 676 F.3d 237, 246 n.2 (1st Cir. 2012) (noting that arguments raised for the first time on appeal are deemed waived); United States v. Meade, 175 F.3d 215, 223-24 (1st Cir. 1999) (same). Hoping to avoid this logic, Acosta faintly intimates a slight whisper of a suggestion that Ríos's objection preserved the issue for all defendants. But he does not develop this piggyback theory, so we need say no more about that. See, e.g., United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (holding "that issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived").
Explaining the problem that sabotages Acosta's second argument — that the judge should have plied his Rule 12.1(d) power to excuse the surprise-witness disclosure — requires a little more work on our part. We start with some basics. A defendant obviously has a right to offer witnesses in his defense, thanks to the Supreme Court's reading of the Sixth Amendment. See Taylor, 484 U.S. at 409; see also United States v. Portela, 167 F.3d 687, 704 (1st Cir. 1999). But just as obviously, that right (like most rights) is not unlimited and may bow to other "[c]ompeting interests." United States v. Brown, 500 F.3d 48, 57 (1st Cir. 2007) (citing Taylor, 484 U.S. at 414-15). Among these are "the integrity of the adversary process, the danger of unfairly skewing the truth-determining function that lies at the epicenter of that process, and the efficient administration of justice." Id. (citing Taylor again). Also relevant are "the willfulness [or not] of the violation, the relative simplicity of compliance, and whether or not some unfair tactical advantage has been sought." United States v. Nelson-Rodriguez, 319 F.3d 12, 36 (1st Cir. 2003) (quoting Chappee v. Vose, 843 F.3d 25, 29 (1st Cir. 1988)). Not every factor applies in every situation, naturally. See Chappee, 843 F.3d at 29 (emphasizing that the Supreme Court has "declined to cast a mechanical standard to govern all possible cases"). And in the end, we give fresh review to the judge's application of this standard, see Nelson-Rodriguez, 319 F.3d at 36, but with "considerable deference" to his factual determinations, see United States v. Levy-Cordero, 67 F.3d 1002, 1013 (1st Cir. 1995).
Acosta's effort to poke holes in the judge's exclusion ruling first focuses on the willfulness factor: because, he says, there is zero indication that counsel had acted willfully when he disclosed the alibi witness midtrial, the judge's edict must fall. What dooms his theory is that we have never held that the exclusion sanction is available only when a party willfully violates Rule 12.1. See Nelson-Rodriguez, 319 F.3d at 37. Next he argues that we must reverse given how badly he needed his wife's testimony to rebut Martínez's and so vindicate his constitutional right to mount an effective defense. But Acosta had more than enough time to reveal his alibi witness before day 13 of trial, as the judge supportably found after hearing prosecutors say how they had handed the defense incriminating July 11 evidence (recordings, transcripts, and reports), starting almost two years before the trial kicked off. Add to that the lack of a credible excuse for not complying with Rule 12.1 and the fact that allowing the surprise witness to testify would have delayed this multidefendant trial (to give prosecutors a chance to investigate the alibi), and it becomes clear that Acosta's alibi-witness argument is a no-go. See generally Williams v. Florida, 399 U.S. 78, 81-82 (1970) (noting that because an alibi defense is easily "fabricated, " the government's "interest in protecting itself against an eleventh-hour defense is both obvious and legitimate, " adding that defendants must know that a criminal trial "is not . . . a poker game in which players enjoy an absolute right always to conceal their cards until played").
(3) Sufficiency of the Evidence
Acosta contends that the evidence was not sufficient to support his drug-conspiracy conviction. To convict someone of that crime, the government must prove beyond a reasonable doubt that he knew about and voluntarily participated in the conspiracy, "intending to commit the underlying substantive offense" — and proof may come from direct evidence or circumstantial evidence, like inferences drawn "from members' 'words and actions'" and from "'the interdependence of activities and persons involved.'" United States v. Ortiz de Jesús, 230 F.3d 1, 5 (1st Cir. 2000) (quoting United States v. Boylan, 898 F.2d 230, 241-42 (1st Cir. 1990)). Of course, winning a sufficiency challenge is hard to do: Acosta must show that after viewing the evidence and reasonable inferences in the light most flattering to the prosecution, no rational jury could have found him guilty beyond a reasonable doubt. See, e.g., United States v. Polanco, 634 F.3d 39, 45 (1st Cir. 2011). And though we exercise de novo review, we can neither re-weigh the evidence nor second-guess the jury's credibility calls. Id.
Acosta pins his principal hope on convincing us that two government witnesses who helped seal his fate were unworthy of belief. This argument is hopeless.
The first witness is Jayson Serrano, a confidential informant who had grown up with defendant Rodríguez. Serrano testified that Acosta was a drug "runner" for the Combo-owned Coto Laurel drug point: Rodríguez (the person in charge at that drug point) would get "bundles" of drugs from his Combo colleagues and hand them over to Acosta, who would then give them to sellers at the Coto Laurel locale. Early in his direct examination Serrano named two sellers at the Coto Laurel drug point — nicknamed "Wanda" and "Pucho" — neither of whom were Acosta. Later, though, Serrano did say that Acosta was a seller there as well. He knew this because he had bought drugs from him "several" times. Serrano also testified that he and Acosta had met with Combo leaders at Rodríguez's house. Acosta tries to pour cold water on all this, noting that Serrano is a convicted thief, former drug addict, and paid government snitch who could not keep his story straight about whether Acosta was the seller. What Acosta says may be proper argument for a jury, but it is not proper argument here, given that we must resolve all evidentiary and credibility conflicts in the government's favor. See, e.g., Polanco, 634 F.3d at 45; United States v. Manor, 633 F.3d 11, 14 (1st Cir. 2011).
The second witness that Acosta targets is Martínez, the same Martínez involved in the July 11, 2007 incident discussed above — where Acosta agreed to sell Martínez $80 worth of crack but took off without handing over the drugs, and then defendant Rodríguez fixed things by making sure that Martínez got his crack. Well, Acosta says that that testimony shows only that he had preyed on hapless drug buyers, not that he was a conspiracy member. But his theory cannot fly, given our prosecution-friendly standard of review — which, again, requires us to choose from among competing inferences the one most compatible with the jury's guilty verdict. See, e.g., Polanco, 634 F.3d at 45; Manor, 633 F.3d at 13-14. And having done so, we believe a sensible jury could conclude that Combo-bigwig Rodríguez helped Martínez out because Acosta was a drug seller in the Combo conspiracy and Rodríguez did not want any customer-relations problems on his watch. Like he did with Serrano, Acosta also harps on Martínez's status as a professional stoolie and former drug addict — a credibility attack that fails, for the reason his attack on Serrano failed.
The upshot is that Acosta's insufficient-evidence arguments misfire. So we trudge on.
(4) Drug Quantity
For his final salvo, Acosta attacks the judge's drug-quantity finding. As anyone familiar with this area of the law knows, sentence length in drug cases turns largely on the amount and type of drugs involved. Section 841(b)(1)(A) of Title 21, for example, lists amounts of different drugs — 1 kilogram or more of heroin, 5 kilograms or more of cocaine, for instance — that lead to sentences of 10 years to life ("unless death or serious bodily injury results from the use of such substance, " which leads to sentences of 20 years to life). Acosta says, basically, that the judge relied on conspiracy-wide amounts rather than on amounts attributable to him personally or reasonably foreseeable by him — a gaffe, he adds, that resulted in his getting a higher sentence. Commendably, he concedes that he did not object on this basis below and so must prove plain error — a famously difficult standard to meet, requiring him to show "error, plainness, prejudice to the defendant[, ] and the threat of a miscarriage of justice." United States v. Torres-Rosario, 658 F.3d 110, 116 (1st Cir. 2011); accord United States v. Eisom, 585 F.3d 552, 556 (1st Cir. 2009). This is a standard he ultimately cannot meet, it turns out.
Even a quick look at the record reveals that the jury made individualized drug findings for each defendant beyond a reasonable doubt: following the judge's charge, the jury checked off lines indicating, for example, that Acosta had conspired to possess and distribute 1 kilogram or more of heroin, 5 kilograms or more of cocaine, 50 grams or more of crack, and less than 100 kilograms of marijuana. In sentencing him on the drug-conspiracy count, the judge used the jury's 1-kilogram-or-more-of-heroin finding — a finding that triggered a statutory minimum-to-maximum prison range of 10 years to life, see 21 U.S.C. § 841(b)(1)(A), all without offending Alleyne v. United States, 133 S.Ct. 2151 (2013), despite what Acosta says. Alleyne held that facts triggering application of a "mandatory minimum sentence" generally "must be submitted to the jury" and established "beyond a reasonable doubt." See 133 S.Ct. at 2163. That is precisely what happened here.Working with the 2009 version of the federal sentencing guidelines,  the judge then pegged Acosta's base-offense level at 32 and made no adjustments, either up or down. With a criminal-history category of III, Acosta's guidelines-recommended sentencing range was 151 to 188 months of imprisonment, the judge concluded. And after considering relevant sentencing factors, see 18 U.S.C. § 3553(a), the judge selected 151 months — the very bottom of the applicable guidelines range and obviously well within the statutory range of 10 years to life.
Given this set of circumstances, the bottom line is very simple: the jury's individualized drug-quantity findings still Acosta's cry that no individualized findings drove this part of the judge's sentencing decision. Ever persistent, Acosta suggests that the evidence before the jury concerning what amounts he had handled or were reasonably foreseeable by him was "iffy" at best, an argument that certainly sounds like a sufficiency challenge. But the already high bar for plain error becomes even higher when dealing with an unpreserved sufficiency-of-the-evidence claim (which this is), requiring a criminal defendant to show a "clear and gross injustice" for reversal. United Statesv.Pratt, 568 F.3d 11, 18 (1st Cir. 2009). And significantly, Acosta makes zero effort to explain how — after taking the evidence and permissible inferences in a prosecution-friendly way — he satisfies this souped-up standard. And that means that he has not lived up ...