FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. Daniel R. Domínguez, U.S. District
de Crombrugghe McGillion, with whom Ines McGillion Law
Offices, PLLC was on brief, for appellant Walker-Couvertier.
Allison J. Koury 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.
Torruella, Selya and Lynch, Circuit Judges.
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.
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.
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.
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.
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. §
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.
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.
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
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 U.S.S.G. §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
CHALLENGES TO THE CONVICTIONS
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.
Statute of Limitations.
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 (1993). Here,
however, precedent precludes any review at all.
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, 136 S.Ct. 709, 716-18 (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.
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.
English Proficiency Requirement.
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 (1979); Taylor v. Louisiana, 419 U.S. 522,
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).
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).
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 case law suggests"
departing from prior precedent. United States v.
Chhien, 266 F.3d 1, 11 (1st Cir. 2001). No such
exception pertains here. It follows inexorably as sunset
follows sunrise, that we must reject the defendants'
belated challenge to the English proficiency requirement.
Admission of Traffic-Stop Evidence.
argues that the district court erred when it permitted the
government to introduce evidence seized during a July 2008
traffic stop. The relevant facts can be succinctly
summarized. Puerto Rico police officers came across
Walker's car while on patrol. They observed that the
license plate was partially obscured (in violation of local
traffic laws) and stopped the car so that they could
investigate the putative violation. During the ensuing stop,
the officers obtained Walker's consent to a search of the
vehicle. In the course of that search, the officers found
cash, a loaded gun, a small bag of marijuana cuttings, and a
trial, Walker for the first time questioned the propriety of
the traffic stop and sought suppression of the evidence
seized. He insisted that the officers were interested in his
car because they suspected his involvement in a criminal
organization then under investigation and that their
traffic-violation rationale was pretextual. The district
court denied the motion to suppress on the merits and allowed
the government to introduce the disputed evidence.
venue, Walker attempts to raise a variety of more
particularized challenges to the warrantless stop. He argues,
for example, that the government did not have reasonable
suspicion adequate to justify the stop, see Chhien, 266 F.3d
at 5-6, and that the evidence was seized in violation of the
Fourth Amendment, see Wong Sun v. United States, 371
U.S. 471, 484-85 (1963). He alleges that his license plate
was fully legible, and that the officers had only a
"generalized suspicion" that he was involved in
criminal activities. See United States v. Cortez,
449 U.S. 411, 417-18 (1981) (requiring a "particularized
and objective basis" to justify a traffic stop).
Moreover, he suggests that even if the initial stop was
lawful, it was impermissibly prolonged. See Rodriguez v.
United States, 135 S.Ct. 1609, 1611 (2015).
not reach the merits of Walker's argument. The critical
datum is that he did not move to suppress the evidence seized
until his trial was already well underway. That delay is
fatal to the challenge that he now seeks to pursue.
claim of error is governed by the version of the rule that
was in effect when the district court adjudicated his motion.
See United States v. Bulger, 816 F.3d 137, 145 n.7
(1st Cir.), cert. denied, 137 S.Ct. 247 (2016). Federal Rule
of Criminal Procedure 12 was amended in December of 2014. The
pre-amendment version of the rule, as it read at the time of
Walker's trial, specified that the failure to move to
suppress particular evidence before trial resulted in
"waiver" of any objection and that such a waiver
should be overlooked only upon a showing of "good
cause" sufficient to excuse the delay. See Fed. R. Crim.
P. 12(e) (2014 ed.). Walker wholly failed to identify any
semblance of good cause that might have excused the
untimeliness of his motion to suppress. Thus, Walker's
suppression claim was waived - and having waived it, Walker
is not entitled to any appellate review. See United
States v. Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002)
(explaining that "a waived issue ordinarily cannot be
resurrected on appeal").
to Walker's importunings, the fact that the district
court elected to deny his motion on the merits does not alter
our analysis. That a district court chooses to address a
motion on the merits does not preclude an appellate court
from ruling that the motion should have been denied on a
procedural ground (such as waiver or preclusion). See
United States v. Bashorun,225 F.3d 9, 14 (1st Cir.
2000). As we have noted, a trial court may opt to address a
waived claim simply to create a record in the event ...