US v. Arzola-Martinez

Filing 920100825

Opinion

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var WPFootnote1 = 'Count Two, relating to forfeiture of property upon a conviction\
under Count One, 21 U.S.C. § 853(a)(1) and (2), was dismissed at\
each Appellant\'s sentencing hearing.\
'

var WPFootnote2 = 'In the companion cases of United States v. Cintrón-Echautegui,\
604 F.3d 1 (1st Cir. 2010), and United States v. Rivera-Moreno, No.\
08-1961, 2010 U.S. App. LEXIS 14677 (1st Cir. July 19, 2010), two\
co-conspirators in Las Avispas Dos pled guilty to the conspiracy\
count, and we affirmed the district court\'s judgments in each case.\
'

var WPFootnote3 = 'Besides the issues discussed here, Arzola-Martínez, Pabón-Mandrell, and Rivera-Rodríguez raised, in their initial brief,\
another issue, concerning the number of peremptory challenges the\
district court granted to the prosecution at trial. These\
Appellants argued that the district court committed plain error\
when it granted the prosecution twelve peremptory challenges, which\
these Appellants argued violated Federal Rule of Criminal Procedure\
24(b)(2). These Appellants thus requested that we find that the\
district court committed plain error and grant them a new trial. \
In supplemental appellate briefing that we ordered both parties to\
submit after oral argument, the government noted that, during a\
supplemental conference with the district court on March 12, 2010,\
"[t]he district court and the trial attorneys (both for the\
government and defense) clarified that although the record says\
\'12\' only six (6) peremptory challenges were given to the\
government with two challenges for the 3 alternates." Appellants\
conceded the point during that conference, and so we do not address\
this issue further.\
'

var WPFootnote4 = 'The record is not clear about the nature of these two arrests\
and convictions. We can only glean that they were related to\
weapons charges.\
'

var WPFootnote5 = 'The record is not clear about the nature of this arrest. \
Defense counsel stated that it was for larceny but noted that\
Rivera-Díaz said it was drug-related.\
'

var WPFootnote6 = 'Arzola-Martínez and Muñiz-Massa also attack the credibility of\
witnesses who testified at trial as a basis for finding that the\
evidence was insufficient for a jury to find them guilty. However,\
"[w]e do not assess the credibility of a witness, as that is a role\
reserved for the jury." United States v. Troy, 583 F.3d 20, 24\
(1st Cir. 2009) (citation and internal quotation marks omitted). \
We thus need not consider this matter.\
'

var WPFootnote7 = 'Rivera-Díaz testified that a runner "is in charge of keeping the\
material in his house to then bring it over to the drug point and\
hand it over to the seller, and then to collect the monies and keep\
it for the owner of the material."\
'

var WPFootnote8 = 'An inconsistency exists in the record with respect to Juror No.\
40. At one point during voir dire on February 11, 2008, Juror No.\
40 is recorded as referring to "my wife," whereas at another point\
on the same day the juror is recorded as referring to "[m]y\
husband." Furthermore, despite the jury list indicating a female\
name for Juror No. 40, the district judge, during the supplemental\
hearing, referred to the prospective juror using the masculine\
pronoun and mentioned the juror\'s "wife." The gender of the juror\
and the juror\'s spouse are irrelevant to our inquiry, so we need\
not resolve these matters.\
'

var WPFootnote9 = 'We derive the total number of prospective jurors from the\
district judge\'s list provided in Appellants\' supplemental brief.\
'

var WPFootnote10 = 'In the cases of Juror Nos. 2 and 35, the trial transcript does\
not explicitly state that the conversations occurred "[a]t the\
bench," as the trial transcripts of the other ex parte\
communications do.\
              In the case of Juror No. 2, the district judge summarized the\
conversation when she summarized the ex parte communications she\
conducted with other prospective jurors, suggesting that the\
judge\'s communication with this juror was also ex parte. During\
the supplemental hearing, the district judge resolved this matter\
by acknowledging that the prospective juror "was examined at the\
bench."\
              In the case of Juror No. 35, the trial transcript reflects\
that that prospective juror stated his number and then that the\
district judge summarized what the prospective juror said. This\
portion of the transcript thus suggests that the district judge did\
conduct an unrecorded ex parte communication with this prospective\
juror.\
              Given that (1) the district judge summarized the conversations\
she had with both Juror Nos. 2 and 35, as she did with the other\
thirteen prospective jurors with whom she conducted ex parte\
communications, (2) Appellants claim and the government does not\
refute that Juror Nos. 2 and 35 were subject to ex parte\
communications, and (3) the district judge concedes that at least\
the communication with Juror No. 2 was ex parte, we assume that\
both of these jurors were indeed among the prospective jurors\
questioned by the district judge outside the presence of counsel.\
'

var WPFootnote11 = 'In the case of Juror No. 60, the trial transcript omits what the\
prospective juror said, noting only that it was in Spanish. The\
trial transcript does, however, reflect what the district judge\
stated. Because the transcript of the district judge\'s statement\
is within the portion of the transcript noted as being "[a]t the\
bench," and not "[i]n open court," that suggests that, contrary to\
Appellants\' claim, the court reporter was present and did\
transcribe the district judge\'s statement, but omitted the\
prospective juror\'s statement. The Spanish answers of Juror No. 60\
could have been translated by the court reporter if proper\
procedure had been followed.\
'

var WPFootnote12 = 'Rivera-Rodríguez does not challenge the mathematical formula and\
hypotheticals that the district court employed to conclude that if\
a vial of crack cocaine weighed 0.075 grams, Rivera-Rodríguez would\
be responsible for a total of more than 4.5 kilograms of crack\
cocaine. We thus focus only on Rivera-Rodríguez\'s challenge to the\
average weight of each vial.\
'

var WPFootnote13 = 'The indictment\'s section on "Overt Acts in Furtherance of the\
Conspiracy" includes the following: "On or about March 30, 2005,\
[Pabón-Mandrell] possessed a measurable amount of cocaine and\
marihuana, in or around the area of a \'drug distribution point\',\
located in Borinquen Ward, Guayama, PR."\
'

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