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United States v. Walker-Couvertier

United States Court of Appeals, First Circuit

June 15, 2017

DEAN LUGO-DÍAZ, Defendant, Appellant.


          Ines 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.

          Before Torruella, Selya and Lynch, Circuit Judges.

          SELYA, Circuit Judge.

         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.

         I. BACKGROUND

         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 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 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.

         A. Statute of Limitations.

         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 (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, 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. 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.

         B. English Proficiency Requirement.

         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 (1979); Taylor v. Louisiana, 419 U.S. 522, 526-27 (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 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.

         C. Admission of Traffic-Stop Evidence.

         Walker 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 marijuana cigar.

         At 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.

         In this 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).

         We need 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.

         Walker's 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.[1] See United States v. Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002) (explaining that "a waived issue ordinarily cannot be resurrected on appeal").

         Contrary 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 ...

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