As Corrected June 11, 2015.
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APPEALS FROM THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF PUERTO RICO. Hon. Juan M. Pérez-Giménez, U.S. District Judge.
Linda Backiel for appellants Sonia N. Flores-Rivera and Cruz Roberto Ramos-Gonzá lez.
H. Manuel Hernández for appellant Sandra I. Flores-Rivera. Rafael F. Castro Lang for appellant Carlos Omar Bermú dez-Torres.
Dina Á vila-Jimé nez, 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 appellee.
Before Torruella, Thompson, and Kayatta, Circuit Judges.
KAYATTA, Circuit Judge.
These consolidated appeals arise from a multi-count indictment alleging that the four appellants-- Sonia Flores-Rivera (" Sonia" ), Sandra Flores-Rivera (" Sandra" ), Carlos Omar Bermú dez-Torres (" Omar" ), Cruz Roberto Ramos-Gonzá lez (" Ramos" )--and their forty-three co-defendants participated in a far-reaching drug trafficking conspiracy throughout various parts of eastern Puerto Rico. Following their joint trial, the appellants were convicted and sentenced to prison terms ranging from 151 months to life. They assign error to many facets of their trial, sentencing, and post-trial proceedings.
Ramos and Omar contend that the district court erred in denying their motions for a new trial based on the prosecution's failure to disclose material evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). We agree that, cumulatively, the withheld evidence had a " reasonable probability" of changing the result for those two appellants.
See United States v. González-González, 258 F.3d 16, 20 (1st Cir. 2001). We therefore remand their cases to the district court for a new trial. Sonia and Sandra press no Brady claims on appeal. Finding no reversible error arising from the claims that they do bring, we affirm their convictions and sentences.
A. The Charged Conspiracy
A grand jury indicted the appellants and their codefendants on August 2, 2007, on charges of conspiring to distribute, and aiding and abetting the distribution of, cocaine, crack-cocaine, heroin, and marijuana within 1,000 feet of a public housing project or a public school, see 21 U.S.C. § § 841(a)(1), 846, 860 and 18 U.S.C. § 2 (counts one and three through six), in addition to possessing firearms in furtherance of those crimes, see 18 U.S.C. § 924(c)(1)(A) and (o) (count two). On February 5, 2008, the grand jury returned a superseding indictment bringing additional charges against Ramos and five other defendants for bribing and tampering
with a government witness (counts seven through nine) in violation of 18 U.S.C. § 1512(b)(1) and (k); id. § 201(b)(3); and id. § 2 (hereinafter " the witness tampering counts" ). Prior to trial, the district court granted the prosecution's motion to dismiss the witness tampering counts without prejudice so that those charges could be tried separately.
B. The Evidence
In considering a challenge to the sufficiency of the evidence following a trial by jury, we typically recite the relevant facts in the light most favorable to the jury's verdict. See United States v. Bayes, 210 F.3d 64, 65-66 (1st Cir. 2000). Conversely, our precedent manifests a lack of consensus on how to present the record when a challenge is lodged to other issues, such as claims of prejudicial error. See United States v. Burgos-Montes, No. 13-2305, 786 F.3d 92, *2-3 (1st Cir. May 13, 2015).
Given that we cannot simultaneously recite the facts in more than one manner, we first provide a more or less neutral summary of the key relevant evidence presented at trial. In our subsequent analysis of each issue we adopt a Rashomon-like approach to our view of the evidence depending on the precise question posed by the applicable principles of substantive law. For example, if a prosecution witness plausibly says " X" and a witness favorable to the defense plausibly claims " not X," we may initially recite both but, in considering the sufficiency challenge, we assume " X" to be correct. Conversely, on the Brady challenges, the key question posed is whether the unproduced evidence " could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." United States v. Avilés-Colón, 536 F.3d 1, 19 (1st Cir. 2008) (internal quotation marks omitted). Answering this question requires that " [w]e evaluate the strength of the impeachment evidence and the effect of its suppression in the context of the entire record." Id. (alteration in original) (internal quotation marks omitted). Thus, in the hypothetical example posed above, and with omitted evidence in the form of documents calling into question the credibility of the prosecution witness, we do not assume " X" to be correct; rather, we consider the evidence as a whole to gauge the impact that the documents would likely have had on the jury in weighing the evidence.
The appellants were tried before a jury in October and November of 2009. The prosecution's witnesses told of a wideranging conspiracy led by Ramos and staffed by his cadre of " lieutenants" (including Omar), " sellers" (including Sandra), and " runners" (including Sonia).
The prosecution's star witness was Harry Smith Delgado Cañuelas (" Delgado" ). Upon his release from prison in 2004, Delgado moved to the Victor
Berríos Public Housing Project (" Victor Berríos" ) in Yabucoa, Puerto Rico. He testified that brothers Alex and Ramiro Nazario controlled heroin sales at Victor
Berríos in 2004, whereas Ramos controlled crack, cocaine, and marijuana distribution. Delgado said that, while working for the Nazario brothers, he learned where Ramos's organization hid its drug inventory, and he stole a large packet (a " muerto" ) of Ramos's drugs. Ramos, he said, suspected him of taking the " muerto," and hired Delgado with the intent to later kill him after Ramos purchased control of the heroin drug point from the Nazario brothers in 2005. But after seeing how effectively Delgado was " building up" heroin sales under Omar's supervision, Ramos decided Delgado was more valuable to him alive than dead.
Delgado explained that his role as a lead administrator at Victor
Berríos gave him an insider's view of the organization's leadership. Omar and two other defendants acted as " order sergeants" in carrying out Ramos's commands whenever a problem arose at a Ramos-owned drug point. Delgado also recounted how Ramos kept tabs on competitors who sought to establish other drug points near Victor Berríos.
Delgado's additional role as a seller provided insight into the organization's day-to-day operations as well. He testified that Sonia was a " runner" for the Victor
Berríos drug point. When a seller's supply ran low, Sonia would fetch drugs from Ramos's inventory and deliver them to the seller. After another individual finished tallying drug sales, Sonia stashed away the proceeds until one of Ramos's lieutenants picked up the money. Sandra, meanwhile, served as both a runner and a seller of cocaine, crack, and marijuana. Two other cooperating witnesses, whose testimony is described below, painted a similar picture of Sandra's role.
Delgado claimed that his employment with Ramos's organization continued until 2007, when he was arrested for attempted murder in Yabucoa. Delgado soon thereafter began cooperating with the government.
Xiomara Berríos-Rojas (" Xiomara" ) was the government's second cooperating witness who claimed to have been a member of the conspiracy. Xiomara testified that she began working for Ramos's organization at Victor
Berríos in or around 2004, selling marijuana, crack, and cocaine. She testified that certain notebooks, seized by the police from an apartment belonging to one of Ramos's lead bookkeepers at Victor
Berríos, included " tallies" reflecting the accounting of drug sales. Xiomara also testified that a video depicting Sandra at Victor
Berríos showed her dispensing crack, although no drugs were visible in the footage. And she agreed with Delgado's testimony that Sonia was a " runner" for Ramos.
The third cooperating witness to testify was Andy Marcano (" Andy" ). Andy, like Xiomara, was a " runner." He delivered heroin and other drugs to various drug points, including Victor
Berríos. Andy said that he also accompanied Ramos and his lieutenants when it became necessary to threaten competitors or discipline the organization's members.
Andy explained that Omar cooked heroin for the organization and acted as one of Ramos's lieutenants. After preparing the heroin, Omar gave it to Andy or another runner, who then delivered it to sellers such as Delgado.
Central to the defendants' (in particular, Ramos's) trial strategy was an attempt to impeach Delgado, Xiomara, and Andy by suggesting that they engaged in a coordinated effort to fabricate their testimony. Leading up to the trial, the three witnesses were housed in a unit for cooperators within the Metropolitan Detention Center (MDC) in Guaynabo, Puerto Rico. Within the cooperators' unit, the men were located in section 4-C (" 4-Charlie" ), and Xiomara resided in section 3-C, " right below" 4-Charlie. Xiomara admitted it was possible for the cooperators to talk to prisoners in other cells through the plumbing system by removing water from each cell's toilet bowl.
On the stand, all three witnesses admitted speaking to each other at MDC, but they flatly and firmly denied discussing anything involving the instant case. Asked by Ramos's counsel whether he discussed the case with Andy, Delgado responded: " No . .., from the beginning when I arrived [at 4-Charlie] in 2007, the order is that you cannot talk about the
cases with anybody, anybody, nobody, nobody." Similarly, while admitting that she spoke to Delgado " on several occasions," Xiomara denied ever speaking to him after she began cooperating with the government, and she also denied that Delgado convinced her to testify or that they discussed their testimony with one another. Andy, too, admitted to speaking to Delgado at 4-Charlie. But when asked on cross-examination whether he " at any time discuss[ed] [his] testimony or the facts of this case with Harry Delgado," Andy replied, " No. It is totally prohibited to us to talk about the case."
One might think that in this case charging a conspiracy covering so much time, geography, and wrongdoing, the prosecution (perhaps with the assistance of the cooperating witnesses) would have offered a great deal of other evidence that did not depend on, and indeed corroborated, the testimony of its cooperating witnesses. One would be wrong. The government points us to no such evidence of any significant probative value, especially as it might bear on Ramos and Omar.
Government agents did explain how they set up secret cameras, and seized computers, cell phones, and notebooks. They also explained how they caught a number of other individuals redhanded at Victor
Berríos. None of this evidence, though, directly implicated Ramos or Omar, and none of the other individuals who were implicated testified.
After a thirteen-day trial, the jury found Ramos and Omar guilty on all six counts charged in the superseding indictment. The government dismissed the firearms charge against Sonia and Sandra prior to jury deliberations, but the jury returned a guilty verdict against those two appellants as to the five remaining drug trafficking counts.
At the close of their respective sentencing hearings, the district court sentenced the appellants to the following terms of imprisonment: Sonia, 151 months; Sandra, 240 months; Omar, 480 months; Ramos, life imprisonment. Each of the four appellants timely appealed their convictions and sentences, but intervening events arising from the severed counts of witness tampering against Ramos delayed their appeals from reaching this Court for several years.
II. Ramos and Omar's Brady Claims
At some unspecified time before the trial of this case, Delgado sent the lead prosecutor a handwritten letter that was, on its face, a document that the prosecutor was required to disclose to defense counsel prior to trial. The prosecutor did not make this disclosure. Instead, she recounts that she put a copy of the letter in her file for the separate trial on the witness tampering charges against Ramos, and forgot about it even as she tried this case in which Delgado was, in her words, her star witness. She then came across the letter after the trial of this case when preparing to try the witness tampering case. The prosecutor also managed not to provide defense counsel prior to the verdicts a series of notes Delgado kept, or notes taken by FBI agents during their interviews with another indicted co-conspirator, Gabriel Medina-Pabon (" Medina" ). The belated production of these materials set off a series of post-trial evidentiary hearings and motions by Ramos, Omar, and Sandra. The district court, in four separate opinions issued between 2010 and 2013, rejected the appellants' various arguments for a new trial based on the belated productions. Those four opinions provide a detailed account
of each of the hearings conducted by and motions submitted to the district court.
See United States v. Ramos-Gonzá lez, 747 F.Supp.2d 280, 284-89 (D.P.R. 2010);
United States v. Ramos-Gonzá lez, No. 07-318, 2011 WL 2144215, at *1-2 (D.P.R. May 31, 2011); Opinion & Order, ECF No. 2648 at 1-3, July 30, 2012; Opinion & Order, ECF No. 2972 at 1-6, August 9, 2013. We describe the details of the withheld evidence and the district court's reasoning.
A. The Withheld Evidence
1. Delgado's Letter to the Prosecutor
The evidence of Delgado's letter to the prosecutor consisted of two photocopied pages of handwritten text. The certified translation of the letter states as follows:
To: The Prosecutor Dina Aví la Jí menez
From: The best cooperator, Harry S. Delgado
I hope under God Almighty that when you receive the foregoing in your hands, you enjoy perfect health together with your co-workers and relatives. It is my best wish from the bottom of my heart.
About me, I tell you that [illegible], I am well health-wise.
I will start by saying that this is to let you know to please remember these 2 things, the first is that Jeanette is on probation and before she leaves the country, to clarify that point of view, because otherwise, they'll deem her as a fugitive and they may take away my daughters, and that would kill me, please clarify this thing of the probation first; and the second thing, I need an order from the Judge so that when they transfer me Jeanette can visit me, remember that I am not legally married, and to get visits you have to fill in a paper that you have to put your home and the criminal record and it is not convenient for any jail to know where Jeanette lives, what we want is that the least they know, the better, please help me, I am doing everything for my daughters and Jeanette. I need you to help me please. I promised you, the last time we saw each other, to do everything you said and I have done it to the point that you know how this has gotten, we have more than we expected, more evidence and more strength for the case, I hope you can help me, I will
The photocopy of the letter is cut off after " I will" at the end of the letter's second page. The prosecutor reports that when she re-discovered the letter after the trial, she asked the FBI agents to " go through each . . . folder or envelope to see if they could find the original," but they were unable to find it. Ramos-Gonzá lez, 747 F.Supp.2d at 286-87. The prosecutor said that the agents could not find any other materials related to the letter, and she denied destroying any part of the letter herself or instructing the agents to destroy part of the letter. The district court was unable to definitively determine whether additional pages were missing from the letter and, if so, how such pages may have disappeared. Id. at 284.
2. Delgado's Toilet Conversation Notes
Delgado made notes of two conversations with Andy and Medina on the night of December 9, 2008, one at 8:57 p.m. and the other at 9:18 p.m. Id. at 287. Those conversations took place through the " toilet system" at MDC, id. at 287, where, as we mentioned above, Delgado, Xiomara, Andy, and Medina were all incarcerated leading up to the drug trafficking trial.
The notes reflect that Andy and Medina attempted to curry favor with Delgado (who they presumably knew was the lead cooperator) and to downplay their own roles in the conspiracy. According to the notes, Medina said: " Look [Delgado], I'm calling to tell you that I am cooperating in the case with the prosecutor and I know you are getting [Xiomara] ready. . . . Andy and I are going to cooperate, I already started to cooperate." Medina then questioned Delgado as to why the government was " plac[ing] [him] at the [drug] point when you know that I wasn't working there." Andy also denied being an " enforcer." Delgado replied: " You very well know that you were dealing," and proceeded to remind Medina of a time when he assisted Delgado with storing guns. The rest of the conversation basically reiterated Medina's pleas to Delgado to treat him well in prison.
Delgado's notes also relate a later conversation between Delgado and Andy that had a similar tenor to Delgado's conversation with Medina. Andy asked why the government had him " down as an enforce[r]." Delgado replied: " Listen, you know that I know about your situation, and to tell you a little something, do you remember the meeting in Caguas, where you, [Ramos], Manolo, [Bam Bam], Eddie, Omar, and the others were there?" Andy said: " Yes, yes, yes, it's true, but I'm going to cooperate and I'm going to bring down all of those who stayed behind," and, " What I want is that when we go up there, for us not to be enemies, but friends, and be only [one], so we can help each other." They then agreed to talk to each other again the following day at 8:00, but there are no notes of any subsequent conversations on the record. At some point the ...