US v. Walker-Couvertier

Filing

OPINION issued by Juan R. Torruella, Appellate Judge; Bruce M. Selya, Appellate Judge and Sandra L. Lynch, Appellate Judge. Published. [15-1261, 15-1267]

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Document: 00117167607

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Date Filed: 06/15/2017

United States Court of Appeals
For the First Circuit
No. 15-1261
UNITED STATES OF AMERICA,
Appellee,
v.
ABRAHAM WALKER-COUVERTIER,
Defendant, Appellant.
No. 15-1267
UNITED STATES OF AMERICA,
Appellee,
v.
DEAN LUGO-DÍAZ,
Defendant, Appellant.
___________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Torruella, Selya and Lynch,
Circuit Judges.

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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.

June 15, 2017

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SELYA, Circuit Judge.

Date Filed: 06/15/2017

Entry ID: 6099895

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

communities.

kinds

of

drugs

to

fellow

inhabitants

of

their

Many of Oppenheimer's associates carried firearms

and used violence to carry out the drug ring's objectives.

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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

at

ring

and

sold

drugs

the

El

Coral

project.

participated in the conspiracy from 2006 to 2010.

Walker

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 sixcount

indictment

against

Walker,

Lugo,

and

seventy-two

other

individuals allegedly involved in the Oppenheimer drug ring.
relevant

here,

the

indictment

charged

the

defendants

As
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).
21 U.S.C. §§ 841(a)(1), 846, 860.
defendants

with

aiding

and

See

The indictment also charged the

abetting

the

distribution

possession of the same drugs (counts two through five).
U.S.C. § 2; 21 U.S.C. §§ 841(a)(1), 860.

and

See 18

Walker was separately

charged with carrying a firearm during and in relation to a drugtrafficking crime (count six).

See 18 U.S.C. § 924(c)(1)(A).

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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.
government's

case-in-chief,

judgment of acquittal.

Walker

and

At the close of the
Lugo

each

moved

See Fed. R. Crim. P. 29(a).

for

The court

denied both motions, save that it granted Lugo's motion as to the
charge of aiding

and abetting the

distribute heroin.

possession with intent to

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.

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Finally, the

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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.
Crim. P. 29(c).

See Fed. R.

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

guideline sentencing range (GSR).
(D).

At

Walker's

disposition

of

the

applicable

See USSG §2D1.1, cmt. n.8(B),
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.
timely appeals followed.

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These

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II.

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CHALLENGES TO THE CONVICTIONS
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.
Lugo
insisting

that

Statute of Limitations.

challenges
his

the

initial

timeliness
period

of

of

his

prosecution,

participation

in

the

conspiracy — which ran from late 2006 to early 2007 — is beyond
the applicable five-year statute of limitations.
§ 3282.

See 18 U.S.C.

Since Lugo raises this argument for the first time on

appeal, our review would normally be for plain error.
States v. Olano, 507 U.S. 725, 731-32 (1993).

See United

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."

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Id. at 718.

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In such circumstances, a district court's failure to consider the
timeliness of the charge can never be error.
So it is here.
his prosecution below.

Lugo did not question the timeliness of
Thus, the district court's failure to

consider that issue was not error.
B.

See id.

See id.

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

§ 1865(b)(2)-(3).

minimal

proficiency.

See

28

U.S.C.

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

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stream of attacks in this circuit.

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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).
exception pertains here.

No such

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.
summarized.
while

on

The relevant facts can be succinctly

Puerto Rico police officers came across Walker's car

patrol.

They

observed

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that

the

license

plate

was

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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 trafficviolation 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

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basis" to justify a traffic stop).
even

if

the

prolonged.

initial

stop

was

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Moreover, he suggests that

lawful,

it

was

impermissibly

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.
12(e) (2014 ed.).

See Fed. R. Crim. P.

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

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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).
Bashorun, 225 F.3d 9, 14 (1st Cir. 2000).

See United States v.
As we have noted, a

trial court may opt to address a waived claim simply to create a
record in the event that the appellate court does not deem the
argument waived.

See, e.g., United States v. Santos Batista, 239

F.3d 16, 20 (1st Cir. 2001).
D.

Summation.

The defendants attack several statements made by the
prosecutor during closing argument.

They strive to convince us

that the statements were so improper and prejudicial as to demand
a new trial.

We are not persuaded.

We hasten to add that even under the current version of Rule
12, Walker would not be entitled to any relief. Though the express
reference to "waiver" in Rule 12 was deleted in December of 2014,
the amendment did not substantively change the rule. See Fed. R.
Crim. P. 12 advisory committee's notes to 2014 amendments (stating
that "[n]ew paragraph 12(c)(3) retains the existing standard for
untimely claims").
1

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When,

as

contemporaneously

in

object

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this
to

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case,
a

defendant

statement

argument, review is for plain error.
1188.

a

made

Entry ID: 6099895

does

during

not

closing

See Sepulveda, 15 F.3d at

That review "entails four showings: (1) that an error

occurred (2) which was clear or obvious and which not only (3)
affected

the

defendant's

substantial

rights,

but

also

(4)

seriously impaired the fairness, integrity, or public reputation
of judicial proceedings."

Duarte, 246 F.3d at 60.

We have made it pellucid that, as applied to closing
arguments, the plain error standard requires the court first to
determine whether the challenged comment is obviously improper,
that is, whether the first two prongs of the plain error standard
have been satisfied.

See United States v. Vizcarrondo-Casanova,

763 F.3d 89, 96-97 (1st Cir. 2014); United States v. Nunez, 146
F.3d 36, 39 (1st Cir. 1998).

If so, the court must proceed to

consider whether the comment "so poisoned the well that the trial's
outcome was likely affected."

United States v. Mejia-Lozano, 829

F.2d 268, 274 (1st Cir. 1987).

In conducting this assessment, the

court must weigh factors such as the severity of the misconduct,
the context in which it occurred, the presence or absence of
curative instructions, and the strength of the evidence.

See

United States v. Kasenge, 660 F.3d 537, 542 (1st Cir. 2011).
The defendants first complain that the prosecutor went
astray when he said, without objection:

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[W]e could have easily . . . taken this trial
and turned it into two months. Easily. Could
have brought in boatloads of seizures, showing
you every video in the world.
The question is, does that change what the
evidence showed? Does bringing boatloads of
cocaine really change what was proven?
We
argue no.
The defendants contend that this statement amounted to an improper
reference to extra-record evidence.

See, e.g., United States v.

Tajeddini, 996 F.2d 1278, 1284 (1st Cir. 1993).
It is elementary that cases should be tried and decided
based on the evidence before the jury, see Smith v. Phillips, 455
U.S. 209, 217 (1982), and the government crossed the line into
forbidden terrain when it cavalierly told the jury that "boatloads"
of other evidence, never introduced, inculpated the defendants.2
Even so, the possibility that the prosecutor's statement
affected the outcome of the trial is miniscule.

The copious trial

Regrettably, this is not the first time that federal
prosecutors in Puerto Rico have jeopardized strong cases by making
overzealous arguments. See, e.g., United States v. Pereira, 848
F.3d 17, 33 (1st Cir. 2017); United States v. Ayala-García, 574
F.3d 5, 22 (1st Cir. 2009); United States v. Andújar-Basco, 488
F.3d 549, 561 & n.5 (1st Cir. 2007); see also United States v.
Martínez-Medina, 279 F.3d 105, 128 & n.12 (1st Cir. 2002)
(Torruella, J., concurring) (collecting cases).
Issues of this
sort have arisen both when prosecutors are hired locally in the
first instance and when they have transferred from another
district, implying a lack of both training and oversight. It is
as much a part of a prosecutor's sworn duty to abide by the rules
governing criminal proceedings as it is to prosecute cases. We
hope that the Department of Justice will at long last begin to
take seriously these persistent derelictions of duty.
2

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evidence provided overwhelming proof of the defendants' guilt.

It

is a commonsense proposition that "the well is . . . less likely
to

have

been

poisoned

prosecutor's case."

where

strong

evidence

Kasenge, 660 F.3d at 543.

supports

the

As we illustrate

below, that proposition applies here.
With respect to Walker, no fewer than three witnesses
testified in detail about his involvement in the conspiracy.

One

identified him as a runner and pusher at the El Coral housing
project who sold cocaine, crack cocaine, and marijuana.

A second

confirmed that Walker served as a runner and explained that she,
too, had seen him sell cocaine, crack cocaine, and marijuana at El
Coral on several occasions.

The third (a self-confessed pusher in

the drug ring) testified that Walker provided him with cocaine to
sell.

All three witnesses testified that Walker carried a gun

while distributing drugs, and one witness confirmed that the gun
carried by Walker was the same color and type as the gun seized
from Walker's car during the July 2008 traffic stop.

In addition,

a police officer testified that when Walker was arrested in
September of 2010, he was carrying 25 vials of crack cocaine.
So,
conviction.

too,

equally

robust

evidence

supported

Lugo's

A government witness testified that Lugo sold him

marijuana several times a week between 2006 and 2007.

The same

witness testified that he had seen Lugo sell cocaine, crack
cocaine, and marijuana to others in the housing project.

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Further,

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the witness explained that he and Lugo would sometimes smoke
marijuana together and give each other advice about selling drugs
and evading law enforcement.
To

make

the

cheese

more

binding,

introduced a number of surveillance videos.

the

government

Construing the videos

in the light most favorable to the verdict, see Sepulveda, 15 F.3d
at 1172, the footage depicted Lugo selling drugs at the El Faro
housing project.

In them, Lugo is seen exchanging money and

parcels with a number of people.

Government witnesses identified

the individuals seen working with Lugo in the videos as fellow
members of the conspiracy.
One other point deserves special mention.

Although the

defendants did not request a curative instruction specifically
addressing the prosecutor's improper "boatloads" reference and the
district court did not give one, the court did instruct the jurors
(after the closing arguments had been completed) that their verdict
must be based solely on the evidence.

The court added that

"[a]rguments and statements by lawyers are not evidence."
instructions

mitigated

any

adverse

statement might otherwise have had.

impact

that

the

These

improper

See Mejia-Lozano, 829 F.2d at

274. Given these instructions and the strength of the government's
case, we are confident that the "boatloads" statement, though far
beyond the pale, did not affect the verdict and, thus, did not
deprive the defendants of a fair trial.

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Walker challenges several other statements made during
the prosecutor's summation.

For example, he alleges that the

prosecutor engaged in improper vouching. Once again, further facts
are needed to put this allegation in context.
Throughout the trial, Walker's

counsel attempted to

discredit government witnesses by eliciting testimony that they
had agreed to cooperate in exchange for leniency at sentencing.
During summation, the prosecutor — attempting to combat this line
of attack — noted that two of the government's three cooperating
witnesses had testified that they were concerned that helping the
government could put them at risk of retaliation.

The prosecutor

asked the jurors whether it would make sense to testify "and risk
their lives to what, save a couple of years?"

It is this statement

that Walker insists amounted to vouching.
Vouching occurs when a prosecutor "places the prestige
of her office behind the government's case by, say, imparting her
personal belief in a witness's veracity or implying that the jury
should

credit

the

prosecution's

government can be trusted."
1, 9 (1st Cir. 2003).

evidence

simply

because

the

United States v. Perez-Ruiz, 353 F.3d

Here, the prosecutor did not mention his

personal beliefs about the witnesses' veracity, nor did he imply
that the witnesses should be trusted simply because they testified
on

the

government's

behalf.

Instead,

he

referred

to

trial

testimony in an effort to give the jurors a reason why they should

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credit the witnesses' testimony.

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"[A]n argument that does no more

than assert reasons why a witness ought to be accepted as truthful
by the jury is not improper witness vouching."

Id. at 10 (quoting

United States v. Rodríguez, 215 F.3d 110, 123 (1st Cir. 2000)).
Next, Walker (who did not testify on his own behalf)
asserts that the prosecutor commented on his silence, in violation
of the Fifth Amendment.
615 (1965).

See Griffin v. California, 380 U.S. 609,

This assertion rests on a grab-bag of statements

uttered during the prosecutor's summation:


at one point, the prosecutor stated that "the [witnesses']
identification

of

the

defendants

in

this

case

is

not

challenged";


at another point, the prosecutor noted that defense counsel
had not argued that the government's witnesses did not know
the defendant;



at yet another point, the prosecutor observed that defense
counsel

had

not

identified

any

credible

reason

why

the

government's witnesses would have lied.
Walker's contention that these statements amounted to
comments on his failure to testify is made up out of whole cloth.
When a defendant maintains that the prosecutor commented on his
silence,

the

circumstances

central
of

the

question

reduces

particular

case,

to
the

"whether,
language

in

the

used

was

manifestly intended or was of such character that the jury would
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naturally and necessarily take it to be a comment on the failure
of the accused to testify."

United States v. Laboy-Delgado, 84

F.3d 22, 31 (1st Cir. 1996) (quoting United States v. Lilly, 983
F.2d 300, 307 (1st Cir. 1992)).

Here, the prosecutor did no more

than point out to the jury that defense counsel had not made
certain arguments.

Taken in context, no reasonable juror could

interpret the prosecutor's statements as even veiled commentary on
Walker's decision not to testify.
Walker

finds

fault

prosecutor's summation.

See id.

with

yet

another

aspect

of

the

He insists that the prosecutor referred

to facts not in evidence when he stated that Walker "went and got
another [gun]" after police officers, during the July 2008 traffic
stop, seized the gun that had been in his car.
"[t]here

was

no

trial

evidence

supporting

As Walker sees it,
the

prosecutor's

statement."
The

record

tells

a

different

tale.

One

of

the

government's witnesses, testifying about conduct that occurred
after 2008, vouchsafed that she regularly saw Walker with a
firearm.

There was no evidence that the seized gun was ever

returned to Walker, so it was a reasonable inference that any gun
carried by Walker after 2008 was not the gun seized by the police
in 2008.

Thus, the challenged statement had an adequate basis in

the evidence and, therefore, was not improper.

See United States

v. Hernández, 218 F.3d 58, 68 (1st Cir. 2000) (explaining that

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"[p]rosecutors

are

free

Page: 20

to

ask

Date Filed: 06/15/2017

the

jury

to

make

Entry ID: 6099895

reasonable

inferences from the evidence submitted at trial").
E.

Jury Instructions.

Lugo advances a claim of instructional error.3

This

claim centers on a statement that the district court made in its
end-of-case jury instructions.

Some background facts are needed

to place this claim in perspective.
At the close of the government's case-in-chief, the
court concluded that there was insufficient evidence to support
the charge against Lugo for aiding and abetting the distribution
of heroin.

Accordingly, it granted Lugo's Rule 29(a) motion for

judgment of acquittal on that count.

In its end-of-the-case jury

instructions, the court told the jury that the court had "dismissed
that charge" after determining that "the proof did not find
sufficiency."
Before us, Lugo argues for the first time that the
court's statement necessarily implied that there was sufficient
evidence to support a verdict for the government on the remaining
counts.

In his view, the statement implicitly diminished the

government's burden of proof on those counts.

Because he did not

object to the jury instructions when they were given, his claim is

Lugo makes a second claim of instructional error which, for
simplicity's sake, we discuss in connection with his arguments
relating to the scope of the conspiracy. See infra Part II(F).
3

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reviewed for plain error.

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See United States v. Pennue, 770 F.3d

985, 989 (1st Cir. 2014).
The "plain error hurdle . . . nowhere looms larger than
in the context of alleged instructional errors."

United States v.

Paniagua-Ramos, 251 F.3d 242, 246 (1st Cir. 2001).
claim faces a steep uphill climb.
this

climb

by

arguing

that

any

See id.

Thus, Lugo's

Lugo tries to make

reasonable

juror

would

have

understood the court to mean that, if there was insufficient
evidence to convict Lugo on the heroin charge, there must have
been sufficient evidence on the other counts.
too facile by half.

This argument is

For one thing, it ignores the very real

possibility that the jurors would have understood the court to
mean nothing more than that there was insufficient evidence to
submit the heroin charge for their consideration.

For another

thing, the argument ignores the equally real possibility that the
jurors

would

have

taken

the

statement

to

indicate

that

the

government had overreached, disposing the jurors to examine the
remaining counts more skeptically.
The short of it is that the challenged statement is
ambiguous.

When

a

prosecutor

makes

an

ambiguous

remark,

a

reviewing court "should not lightly infer that [the] prosecutor
intend[ed the] remark to have its most damaging meaning or that a
jury . . . will draw that meaning from the plethora of less damaging
interpretations."

Donnelly v. DeChristoforo, 416 U.S. 637, 647

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(1974).

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We think that situation is analogous to the situation at

hand, and "[w]e are particularly unwilling to fish in the pool of
ambiguity where the defendant[] did not contemporaneously object."
Sepulveda, 15 F.3d at 1188.
We hold that where, as here, an instruction is ambiguous
and is not objected to in a timely manner, a reviewing court should
hesitate to give the instruction its most pernicious meaning.

In

this instance, a context-specific review satisfies us that the
challenged

statement,

viewed

under

the

totality

circumstances, has not affected the trial's fairness.

of

the

Cf. id. at

1187 (warning against deciding cases "on what amounts to a doomsday
scenario").

There was no plain error.4
F.

Lugo

Scope of the Conspiracy.

challenges

the

sufficiency

underlying his conspiracy conviction.

of

the

evidence

Specifically, he assigns

error to the district court's denial of his post-trial motion for
judgment of acquittal on the ground that the government did not
prove the existence of a single mega-conspiracy.
totality

of

the

evidence

indicated

no

more

In his view, the
than

that

he

participated in a mini-conspiracy operated out of one housing

After Walker filed his opening brief, he attempted for the
first time to incorporate Lugo's claim of instructional error by
motion. See Fed. R. App. P. 28(i). We need not decide whether
Walker's belated attempt at incorporation suffices because, in any
event, the attempt fails for the same reasons that Lugo's claim
fails.
4

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project, not in a broader conspiracy covering all three housing
projects.

Since this issue was preserved below, we review the

denial of his Rule 29(c) motion de novo.
George, 841 F.3d 55, 61 (1st Cir. 2016).

See United States v.
The pivotal question is

"whether, after assaying all the evidence in the light most amiable
to the government, and taking all reasonable inferences in its
favor, a rational factfinder could find, beyond a reasonable doubt,
that the prosecution successfully proved the essential elements of
the crime."

Id. (quoting United States v. Chiaradio, 684 F.3d

265, 281 (1st Cir. 2012)).
Our

assessment

of

whether

the

evidence

supports

a

finding of a single conspiracy must be "pragmatic" in nature.
United States v. Fenton, 367 F.3d 14, 19 (1st Cir. 2004).

We

consider, among other things, whether a rational jury could have
found

that

the

coconspirators

had

a

interdependent, and had overlapping roles.

common

goal,

were

See id.; United States

v. Portela, 167 F.3d 687, 695-96 (1st Cir. 1999).

We conclude,

without serious question, that a rational factfinder could have
determined not only that Oppenheimer conducted drug-trafficking
operations in three public housing projects but also that all of
these operations were part of one mega-conspiracy.
To begin, the evidence supported a reasonable inference
that

all

(including

of

the

Lugo)

individuals
shared

a

that
common

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worked
goal:

under

Oppenheimer

"furthering

the

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distribution of drugs."

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United States v. Negrón-Sostre, 790 F.3d

295, 309 (1st Cir. 2015). The record includes detailed information
about the methods that the coconspirators employed to acquire drug
inventory, protect that inventory, and distribute contraband in
their

communities.

Similarly,

there

was

evidence

that

the

coconspirators often discussed their sales and pooled information
about how to evade detection.

No more was exigible to ground a

finding that Oppenheimer's cohorts were working toward a common
goal.

See Portela, 167 F.3d at 695-96.
A

rational

participants

were

jury

also

could

interdependent.

have

Such

a

found
finding

that

the

requires

evidence from which a jury reasonably could conclude that "the
activities

of

one

aspect

of

the

scheme

[were]

necessary

advantageous to the success of another aspect of the scheme."
at

695

(citation

omitted).

The

evidence

demonstrated

or
Id.

that

Oppenheimer headed up a finely tuned drug-distribution enterprise.
He worked with several confederates to package drugs for sale in
the three housing projects.

Runners working in each project would

then deliver allotments of drugs to pushers for sale at retail.
The pushers (including Lugo) worked in ten to twelve hour shifts
— at the El Coral and Lagos de Blasina projects, the shifts ran
through the night, seven days a week.

El Faro, however, was open

for business every day from 6:00 a.m. to midnight.

At the end of

his shift, each pusher would turn his proceeds over to a runner,

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who would make certain that the money reached Oppenheimer. Because
each

coconspirator's

success

"depend[ed]

on

the

continued

existence and health of the drug distribution organization as a
whole," the jury safely could conclude that coconspirators across
projects were interdependent.

United States v. Niemi, 579 F.3d

123, 127 (1st Cir. 2009).
Last — but not least — the evidence supported a finding
that the participants overlapped.

Such a finding does not require

a showing that every coconspirator knew his fellow coconspirators.
See United States v. Soto-Beníquez, 356 F.3d 1, 19 (1st Cir. 2003)
(explaining that "government need not show that each conspirator
knew of or had contact with all other members," to prove existence
of only one conspiracy).

Nor does it require a showing that the

same individuals were involved for the duration of the conspiracy.
See id.

Showing that the enterprise revolved around a single,

identified core coconspirator is often sufficient.

See Portela,

167 F.3d at 695.
In this case, the government's proof showed a classic
hub-and-spokes

conspiracy,

with

Oppenheimer

as

the

hub.

In

particular, the evidence made pellucid Oppenheimer's pervasive
involvement as the core coconspirator.5

See id.

Furthermore,

Lugo's brief on appeal admits as much.
It states, "the
evidence at trial established that various drugs were sold at three
separate housing projects in Carolina, Puerto Rico.
David
5

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Oppenheimer was not the only person with ties to each project.
The trial testimony identified several persons who worked closely
with him at a central location to package drugs for sale at all
three housing projects.
schedules

and

sales

Some coconspirators discussed their shift
volume

with

coconspirators

principally (or exclusively) at other projects.

who

worked

It was common

knowledge among the members of the drug ring that profits from
sales at all three locations increased the take for Oppenheimer
and his inner circle.
In an effort to blunt the force of this reasoning, Lugo
submits that the evidence cannot support a finding that he was
part of a single mega-conspiracy because there was no evidence
that he personally sold drugs in two of the three housing projects.
The fact that he did not sell drugs at all three sites does not
take Lugo very far.

A defendant need not be personally involved

in all of a conspiracy's activities in order to be held criminally
responsible for the conspiracy's wrongdoing.

See Soto-Beníquez,

356 F.3d at 19; United States v. Baines, 812 F.2d 41, 42 (1st Cir.
1987) ("[A] conspiracy is like a train.
steps

aboard,

he

is

part

of

the

When a party knowingly

crew,

and

[he]

assumes

conspirator's responsibility for the existing freight — or conduct
— regardless of whether he is aware of just what it is composed.").

Oppenheimer was in control of the drug activity at all three
projects."
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That ends this aspect of the matter.

Entry ID: 6099895

The evidence,

viewed in the light most favorable to the verdict, amply supports
the

jury's

determination

that

Oppenheimer

ran

participated in — a single mega-conspiracy.

—

and

Lugo

See Sepulveda, 15

F.3d at 1172.
Lugo soldiers on.

Although his primary argument is

framed as a challenge to the sufficiency of the evidence, he
suggests in passing that the evidence varied from the indictment
(which charged him with participation in a single conspiracy).

We

quickly dispose of this suggestion.
"A

variance

occurs

when

the

crime

charged

remains

unaltered, but the evidence adduced at trial proves different facts
than those alleged in the indictment."

United States v. Mangual-

Santiago, 562 F.3d 411, 421 (1st Cir. 2009) (quoting United States
v. Yelaun, 541 F.3d 415, 419 (1st Cir. 2008)).

To the extent that

Lugo attempts to identify a variance between the indictment and
the

trial

evidence,

he

has

failed

to

offer

any

developed

argumentation on a keystone issue: "[a] variance is grounds for
reversal only if it is prejudicial, that is, if it affects the
defendant's 'substantial rights.'"

Id. (quoting United States v.

DiCicco, 439 F.3d 36, 47 (1st Cir. 2006).

Because Lugo makes no

such argument here, any claim of variance is waived.

See United

States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (observing that

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"issues adverted to in a perfunctory manner, unaccompanied by some
effort at developed argumentation, are deemed waived").
Lugo has one further shot in his sling.

He assails the

district court's failure to give the jury a multiple-conspiracy
instruction explicitly describing the difference between a single
conspiracy and multiple conspiracies, including "specific factors
that [the jury] could consider" in making such a determination.
In the court below, Lugo did not request such an instruction.
Accordingly, our review is for plain error.

See United States v.

Stierhoff, 549 F.3d 19, 25 (1st Cir. 2008).
A multiple-conspiracy instruction is warranted "if, on
the evidence adduced at trial, a reasonable jury could find more
than one such illicit agreement, or could find an agreement
different from the one charged."

Niemi, 579 F.3d at 126 (quoting

United States v. Balthazard, 360 F.3d 309, 315 (1st Cir. 2004)).
To make out plain error, a defendant must show, among other things,
that the omission affected his substantial rights.

See United

States v. Thomas, 895 F.2d 51, 55 (1st Cir. 1990).
Here, however, the evidence supported the jury's singleconspiracy finding, and Lugo has not explained how the absence of
a multiple-conspiracy instruction affected his substantial rights.
Nor can he make such a showing: the district court instructed the
jury that the government bore the burden of proving "that the
agreement specified in the indictment, and not some other agreement

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or agreements, existed between at least two people" and "that the
defendants

willfully

joined

in

that

agreement."

These

instructions made pellucid that the government had to prove not
only that an overall conspiracy existed but also that Lugo was a
part of it.

If the jurors entertained any reasonable doubt that

Lugo was a part of the conspiracy charged, the instructions told
them that they must acquit. These clearly articulated instructions
protected Lugo from any prejudice.

See, e.g., Mangual-Santiago,

562 F.3d at 424-25 (finding, in nearly identical circumstances,
that

court's

failure

to

give

more

particularized

multiple-

conspiracy instruction did not prejudice defendant); Niemi, 579
F.3d at 126-27 (similar); Balthazard, 360 F.3d at 315-16 (similar).
We conclude, therefore, that the absence of a multiple-conspiracy
instruction did not amount to plain error.
III.

CLAIMS OF SENTENCING ERROR
We next address the defendants' claims of sentencing

error.

When a defendant raises both procedural and substantive

claims of sentencing error, we first address those claims that
allege procedural infirmities.

See United States v. Martin, 520

F.3d 87, 92 (1st Cir. 2008).

We then address any arguments

relating to substantive reasonableness.
A.
Walker
improper

claims

factfinding

Walker.

that

when

See id.

it

the

district

calculated

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the

drug

engaged

in

quantities

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attributable to him for sentencing purposes.
twofold.

Entry ID: 6099895

These claims are

First, he says that the sentencing court had no business

finding facts at all, since such factfinding is the exclusive
province of the jury.

Second, he asserts that any judicial

factfinding at sentencing should have been supported by clear and
convincing evidence.
error.

We review these unpreserved claims for plain

See Duarte, 246 F.3d at 60.
At a criminal trial, the government bears the burden of

proving beyond a reasonable doubt any drug quantity charged in the
indictment as an element of the offense.

See Alleyne v. United

States, 133 S. Ct. 2151, 2155 (2013); United States v. Dunston,
851 F.3d 91, 101 (1st Cir. 2017).

In a conspiracy case, though,

a drug quantity charged in the indictment, found by the jury, and
described

in

the

verdict

conspiracy as a whole.

is

generally

attributable

to

the

See United States v. Colón-Solís, 354 F.3d

101, 103 (1st Cir. 2004).

Quantities so found serve only to

establish the applicable statutory minimum and maximum sentences.
See Alleyne, 133 S. Ct. at 2155; Apprendi v. New Jersey, 530 U.S.
466, 490 (2000).
This framework is augmented at sentencing.

Because "a

defendant-specific determination of drug quantity [i]s a benchmark
for individualized sentencing under the guidelines," Dunston, 851
F.3d at 101 (alteration in original) (quoting Colón-Solís, 354
F.3d

at

103),

the

sentencing

court

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must

conduct

additional

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factfinding to determine the drug quantities "attributable to[] or
reasonably foreseeable by" a particular defendant, United States
v.

Cintrón-Echautegui,

604

F.3d

1,

5

(1st

Cir.

2010).

The

sentencing court's interstitial findings are bounded by the floor
and ceiling previously set by the jury's verdict, and they need
only be supported by a preponderance of the evidence.

See id. at

6.
At Walker's disposition hearing, the district court,
using

a

preponderance-of-the-evidence

responsible
marijuana.

for

the

equivalent

of

metric,

12,885.56

found

him

kilograms

of

Walker maintains that this factfinding runs afoul of

both Alleyne and Apprendi.

Walker is wrong.

We have said before — and today reaffirm — that "[n]o
. . . error occurs when a defendant's sentence is based . . . on
Guidelines

considerations

without

changing

mandatory minimum" or maximum sentence.

the

applicable

minimum

or

applicable

United States v. Ramírez-

Negrón, 751 F.3d 42, 49 (1st Cir. 2014).
changes

the

Although any fact that

maximum

sentence

must

be

submitted to a jury, this "does not mean that any fact that
influences judicial discretion must be found by a jury."
133 S. Ct. at 2163.

Alleyne,

Thus, the court below did not err when it

exercised its discretion to find facts needed to inform its
sentencing decision.

See id.

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Walker's contention that the judicial factfinding should
have been supported by clear and convincing evidence, rather than
by preponderant evidence, is insupportable.

We have repeatedly —

and recently — upheld the use of the preponderance standard at
sentencing.

See, e.g., United States v. Munyenyezi, 781 F.3d 532,

544 (1st Cir.), cert. denied, 136 S. Ct. 214 (2015).

Walker offers

nothing that would warrant a departure from this solid phalanx of
circuit precedent.

Consequently, we apply the settled law of this

circuit and reject his claims of sentencing error.
B.

Lugo.

Lugo challenges the district court's decision to hold
him

responsible

marijuana.6

for

what

amounted

to

1,328.41

kilograms

of

Before addressing his particular claims, we survey

the district court's methodology.
At sentencing, the court made a series of findings to
help determine the drug amounts attributable to Lugo.

First, it

concluded that Lugo participated in the conspiracy for a total of
267 days. Next, it calculated the average amount of cocaine, crack
cocaine, and marijuana sold by the conspiracy in the course of a
typical day.

The court then divided each figure by three to

Additionally, Lugo attempts to incorporate Walker's claims
of sentencing error by reference. See Fed. R. App. P. 28(i). To
the extent that his perfunctory effort at incorporation suffices
— a matter on which we take no view — that attempt fails for the
same reasons that Walker's claims fail.
6

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approximate the amount of drugs sold daily at the El Faro housing
project (where Lugo worked).

Finally, the court multiplied the

resulting values by 267 to approximate the amount of drugs that
Lugo sold during his periods of active participation in the
conspiracy.7
Lugo takes issue with several of these steps.

First, he

questions the court's decision to hold him accountable for 267
days

of

conspiracy

participation.

Because

Lugo

raised

this

argument below, we review the court's fact-based determination for
clear error. See Dunston, 851 F.3d at 101.

Under this deferential

standard, the court's determination must stand unless, "after
assessing the whole of the record, [we are] firmly convinced that
a mistake has been made."

Id.

The court arrived at its 267-day figure after reviewing
trial testimony and concluding that Lugo participated in the
Oppenheimer drug ring from October of 2006 to March of 2007 and
from January of 2011 through April of 2011.
this determination.
regularly

purchased

beginning of 2007."

The record supports

At least one witness testified that he
marijuana

from

Lugo

in

"2006

up

to

the

The same witness testified that he observed

Lugo selling both cocaine and crack cocaine in 2007.

In addition,

Before arriving at a total drug quantity, the court
converted the drug amounts for cocaine and crack cocaine to their
marijuana equivalents and added them to the drug amount for
marijuana. See USSG §2D1.1, cmt. n.8(B), (D).
7

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videotapes showed Lugo selling drugs in January, February, and
April of 2011.
Drug quantity determinations do not have to be exact.
See United States v. Platte, 577 F.3d 387, 392 (1st Cir. 2009);
United States v. Rivera-Maldonado, 194 F.3d 224, 228 (1st Cir.
1999).

In this context, "a reasoned estimate will suffice."

United States v. Rodríguez, 731 F.3d 20, 30-31 (1st Cir. 2013)
(quoting United States v. Laboy, 351 F.3d 578, 584 (1st Cir.
2003)).

Just as a sentencing court may estimate drug quantity,

so, too, it may make reasonable estimates regarding subsidiary
facts

(such

as

the

frequency

or

duration

participation in the criminal activity).
604 F.3d at 7.

of

a

defendant's

See Cintrón-Echautegui,

The evidence here furnished sufficient support for

the court's determination of the duration of Lugo's involvement.
While the witnesses did not use precise dates, the court's estimate
was adequately rooted in the evidence.

Drug dealers do not punch

time cards, and a sentencing court must be given some latitude to
extrapolate duration from anecdotal evidence.

See Rodríguez, 731

F.3d at 31-32; United States v. Marquez, 699 F.3d 556, 561 (1st
Cir. 2012).
Lugo also asserts that the district court erred when it
did not credit his claim that he sold drugs only "one to two" times
per week.

This claim, however, misses the mark.

Where, as here,

a defendant has been convicted as a coconspirator, his relevant

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conduct for sentencing purposes "includes not only his own acts
and

omissions

omissions

of

but

also

other

conspiracy."

the

coconspirators

Dunston,

§1B1.3(a)(1)(B)).

reasonably

851

F.3d

in

foreseeable

acts

and

of

the

furtherance

at

101

(citing

USSG

It was surely foreseeable to Lugo that his

coconspirators would continue to sell drugs at El Faro even on
days when Lugo himself was not actively selling.
Battling on, Lugo challenges the

sentencing

court's

decision to divide the drug sales attributable to the entire
conspiracy by three as a means of calculating the sales reasonably
attributable to the El Faro housing project.

He insists that

"[t]here was no testimony that the drug sales at El Faro were as
high

as

those

in

the

other

housing

projects."

Given

that

evidentiary gap, he argues that the court erred when it divided
the drug amounts evenly among the three projects.
One conspicuous fly in the ointment is that Lugo did not
make this argument below.

Consequently, our review is for plain

error — and we discern none here.

Lugo identifies no evidence

compelling the conclusion that the drug sales at El Faro were less
than the drug sales at either of the other projects.

Given this

dearth of evidence, we cannot say that the district court plainly
erred in opting to attribute one-third of the gross sales to El
Faro.

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Lugo next suggests that the district court erred when it
attributed 280 grams of crack cocaine to him.

This suggestion,

too, surfaces for the first time on appeal, so review is for plain
error.
The sentencing court settled on the disputed figure
because that figure represented the maximum amount for which the
jury found Lugo responsible at trial.

In Lugo's view, the court

should have divided 280 grams by three, to account for the fact
that

the

jury's

figure

represented

drug

sales

at

all

three

projects.8
Lugo's argument misconceives the method that the court
used to calculate the amount of crack cocaine attributable to him.
When the court performed its calculations, it used the same
approach for crack cocaine that it used for the other drugs.

In

the end, this yielded a drug weight of 787 grams — more than the
jury's 280-gram finding.

With this in mind, the court found Lugo

responsible for 280 grams of crack cocaine — a finding that both
reflected the jury's verdict and avoided any conflict with the
applicable statutory range framed by that verdict.

See Alleyne,

To be precise, the jury found Lugo responsible for aiding
and abetting the distribution of "28 grams or more, but less than
280 grams" of crack cocaine. Thus, the court should have found
Lugo responsible for no more than 279 grams of crack cocaine, not
280 grams. But Lugo has not briefed this issue, and the error was
manifestly harmless because the one-gram discrepancy did not
change Lugo's GSR.
8

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Case: 15-1261

Document: 00117167607

Page: 37

Date Filed: 06/15/2017

133 S. Ct. at 2155; Apprendi, 530 U.S. at 490.

Entry ID: 6099895

Seen in this light,

there was no need to divide the 280-gram figure by three, and plain
error is plainly absent.
Finally, Lugo makes veiled references to a claim of
substantive unreasonableness and a claim that the district court
was predisposed to impose a particular sentence.
without more, are not adequate
appellate review.

Such references,

to preserve those claims for

See Zannino, 895 F.2d at 17.

As a result, we

deem them abandoned.
IV.

CONCLUSION
We need go no further. For the reasons elucidated above,

the judgments below are

Affirmed.

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