US v. Pena

Filing 920091117

Opinion

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var WPFootnote1 = ' At trial, the jury heard testimony that the street value of\
that amount of cocaine base, packaged in that fashion, would be\
close to $2,100.\
'

var WPFootnote2 = ' We also briefly consider claims of error which Pena raises\
in his pro-se Supplemental Brief regarding the court’s charging\
instructions on reasonable doubt and the elements of the offenses\
as well as the identification of the drug type as crack for\
purposes of sentencing.\
'

var WPFootnote3 = ' The court also expressed concern about "the lack of uniform\
standards, the problem that the proficiency rates, error rates are\
basically determined without a controlled group" and the fact that\
"no one has ever tested the premise of uniqueness."\
'

var WPFootnote4 = ' Pena also argues that the district court erroneously shifted\
to him the burden of refuting the reliability of the expert\
testimony. Though somewhat vague, Pena’s argument appears to be\
that once the trial judge acknowledged the questionable nature of\
the evidence, she "abdicated her role" by not holding a Daubert\
hearing and instead requiring Pena to produce data and experts to\
demonstrate why the evidence should not be admitted. This argument\
also fails. \
              A district court does not abuse its discretion by dispensing\
with a Daubert hearing if no novel challenge is raised. See\
Mitchell, 365 F.3d at 246. Here, Pena raised no new favorable case\
law or expert testimony to challenge the admissibility of the\
fingerprint identification evidence, instead citing only a single\
2002 student note from the Fordham Law Review. \
'

var WPFootnote5 = ' The government argues that Pena waived his sufficiency\
challenge as to Count One by failing to renew his motion for\
judgment of acquittal at the close of evidence and by also failing\
to contest his conviction as to that count in his post-verdict\
motion. However, a review of the trial transcript indicates that\
Pena appears to have renewed his motion after both parties rested,\
so his motion was not waived. Whatever the standard of review,\
Pena\'s claim fails as there is more than sufficient evidence to\
support his conviction.\
'

var WPFootnote6 = ' In addition to challenging the sufficiency of the evidence,\
Pena appears to raise a separate argument that the police did not\
have grounds to stop or arrest him. Pena claims that the anonymous\
tip on which the Brockton Police were acting when they approached\
him did not exhibit sufficient indicia of reliability under Florida\
v. J.L., 529 U.S. 266 (2000), and his subsequent actions, namely\
his flight from the police, did not amount to reasonable suspicion\
that he was engaged in criminal activity. Pena never made this\
argument to the district court in a motion to suppress, and it is\
therefore deemed waived. See United States v. Santos Batista, 239\
F.3d 16, 19 (1st Cir. 2001) ("Failure to raise suppression\
arguments before trial \'shall constitute waiver thereof.\'" (quoting\
Fed. R. Crim. P. 12(f))). \
'

var WPFootnote7 = ' Ms. Rosado testified that the man she saw looked to be about\
twenty years old, with dark skin. She stated that he was chubby,\
had black hair in braids, and was wearing black pants and a white\
short-sleeve shirt. One of the officers testified that the\
defendant was wearing a white tee shirt and blue jeans -- a\
distinction without a difference. \
'

var WPFootnote8 = ' The jury could also easily have concluded that the drugs\
were intended for distribution. The jury heard testimony that such\
a large amount (43.19 grams), packaged in individual sandwich bags\
and with a street value of over $2,100, would ordinarily be\
possessed by a dealer rather than an end user.\
'

var WPFootnote9 = ' Congress added the "possess[ion]" "in furtherance of"\
language to the statute in 1998 in response to Bailey v. United\
States, 516 U.S. 137 (1995), where the Supreme Court held that\
under the prior version of the statute, "the Government must show\
that the defendant actively employed the firearm during and in\
relation to the predicate crime." See United States v. Grace, 367\
F.3d 29, 34-35 (1st Cir. 2004) (quoting Bailey, 516 U.S. at 150)\
(emphasis added). The statute also continues to prescribe a\
violation for the acts of 1) using or 2) carrying a firearm "during\
and in relation to" a drug trafficking crime. As Pena was charged\
both with "carry[ing]" a firearm "during and in relation to" the\
drug offense and "possess[ing]" a firearm "in furtherance of" that\
offense, the government could have obtained a conviction under\
either avenue of proof. See United States v. Lott, 310 F.3d 1231,\
1246 (10th Cir. 2002). As we find sufficient evidence to support\
a jury finding that Pena possessed the firearm in furtherance of\
his possession with intent to distribute cocaine base, we need not\
address whether the government also proved that he carried a\
firearm during and in relation to a drug trafficking offense.\
'

var WPFootnote10 = ' In his pro-se Supplemental Brief, Pena states that his\
counsel’s concession on this point contradicted his own position. \
He states that he "negates any inference whatsoever that suggests\
he threw the firearm and drugs allegedly recovered on [the day in\
question]." Though Pena denies that the firearm recovered by the\
police was ever in his possession, the fingerprint evidence taken\
from the firearm, the fact that the gun was found along the flight\
path, and the testimony of Ms. Rosado were sufficient to allow a\
reasonable jury to conclude that Pena had, in fact, been in\
possession of the revolver when initially stopped by police.\
'

var WPFootnote11 = ' Pena raises numerous additional challenges to the court’s\
instructions as to each count, each of which is without merit. \
With regard to Count One, possession with intent to distribute,\
Pena contends that the district court defined "to possess" without\
defining "to distribute" or "trafficking." It is unclear how the\
definition of trafficking is relevant to the elements of Count One,\
and the court did define the term "to distribute." Pena next\
argues that the court constructively amended the indictment by\
using the term "crack" in the verdict slip when the indictment\
charged him with possession with intent to distribute "cocaine\
base." Pena’s claim is incorrect because the verdict slip in fact\
uses the term "cocaine base," not "crack." \
              Additionally, Pena contends that the court gave the jury\
contradictory instructions as to whether or not the government was\
required to prove what type of drug was possessed. Here, too, Pena\
is incorrect. The court specifically instructed the jury that the\
government must prove beyond a reasonable doubt that the substance\
actually possessed was cocaine base.\
              Regarding Count Two, Pena argues that the court failed to\
explain the first element of the Section 924(c) offense and to\
define the term "trafficking" within that element. Again, Pena’s\
claim is without foundation. The court did, in fact, explain that\
the first element of Count Two was that Pena committed a drug\
trafficking offense and further instructed that the crime of\
possessing cocaine base with intent to distribute charged in Count\
One was a "drug trafficking crime" for the purpose of the statute. \
'

var WPFootnote12 = ' Though the district court did not note the statute or its\
terms on the record at sentencing, the indictment specifically\
charged Pena with a violation of 21 U.S.C. § 841(b)(1)(B)(iii),\
possession with intent to distribute "5 grams or more of a mixture\
or substance . . . which contains cocaine base."\
'

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