USCA1 Opinion

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
_________________________

No. 93-2246

UNITED STATES OF AMERICA,

Appellee,

v.

LUIS A. SANTIAGO,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Hector M. Laffitte,* U.S. District Judge]

___________________

____________________

Before

Selya, Circuit Judge,

_____________
Aldrich, Senior Circuit Judge,
____________________
and Stahl, Circuit Judge.
_____________
____________________

George F. Gormley, with

_________________

whom John D. Colucci and

_______________

Gormley &
_________

Colucci, P.C. were on brief, for appellant.

_____________
Luis A. Santiago on supplemental brief pro se.
________________
Helene Kazanjian,
_________________

Assistant United

whom Jay P. McCloskey, United

_________________

States

Attorney, with

States Attorney, and

Jonathan R.
___________

Chapman,
_______

Assistant United

States Attorney,

were on

brief, for

appellee.

____________________

May 1, 1996

____________________

*Of the District of Puerto Rico, sitting by designation.

SELYA, Circuit Judge.

SELYA, Circuit Judge.
______________

States District Court for the

A jury empaneled

in the United

District of Maine found defendant-

appellant Luis A. Santiago guilty of a single count of conspiracy

to

possess and

district

distribute

heroin, 21

U.S.C.

846,

court sentenced him as a career offender.

challenges his conviction and sentence.

and

the

Santiago now

We affirm.

I.
I.
__

Background
Background
__________

We

verdict,

limn the facts in

consistent

with record

the light most

support.

congenial to the

See, e.g.,
___ ____

United
______

States v. Maraj, 947 F.2d 520, 522 (1st Cir. 1991).

______
_____

The overarching conspiracy

that the government charged

in the indictment

around Wilfredo

and attempted to

transaction

certain

purveyor of cocaine.

attention to heroin.

approximately

pirouetted

Figueroa, a Lawrence, Massachusetts drug dealer.

Figueroa began his career as a

shifted his

portray at trial

fifteen clients,

a client

In 1991, he

He soon built up

all from

would call

Maine.

Figueroa from

a roster of

In

a typical

Maine, order

quantity of heroin, and then sojourn to Lawrence to take

delivery.

doorstep

Occasionally a

without

any

client

would

prearrangement,

appear on

and

Figueroa's

Figueroa

would

middleman (or

so the

improvise.

In

effect, Figueroa acted

jury could have found).

suppliers:

Angel

as a

From October 1991

Soto and the

appellant.

forward, he had

Figueroa

two

patronized

Soto as his principal

supply source but turned to

the appellant

whenever

Figueroa's

Soto could

clients

appellant carried,

not fill

an order.

preferred the

"brand"

Furthermore,

of

and Figueroa invariably used

some of

heroin that

the

Santiago as his

source of supply whenever a client ordered that brand.1

When

Figueroa asked

for

heroin, the

appellant would

either

deliver

delivery.

the

All

drugs

the

personally

deliveries took

or

place

arrange

in

for

their

Massachusetts.

Figueroa (who cooperated with the government and testified at the

trial)

stated

that he

purchased an

heroin a day from the appellant

average

of fifty

bags of

at $15 apiece, often on

credit.

Although the appellant claims that he never met any of the retail

customers,

this

the government

assertion;

informed the

and,

appellant

presented evidence

moreover,

Figueroa

that all

his clients

that contradicted

testified

that

were coming

he

from

Maine to Massachusetts to buy heroin.

Figueroa's

involvement in

the drug

trade followed

hallowed family

tradition.

drugs in Maine.

Blood may be thicker than water, but it is by no

means

thicker

His uncle, Roberto

than self-interest.

When lawmen

Figueroa, dealt

closed

in on

Roberto Figueroa's operation he threw his nephew to the wolves in

hopes of mitigating his own punishment.

Roberto

To help set the

snare,

ordered 130 bags of heroin from his compliant nephew and

demanded delivery in

Maine.

The appellant sold

wrapped

individual

fifty bags

of

____________________

1Santiago
plastic)

(who

and Soto (who used paper

differently.

doses

heroin

in

bags) packaged their products

Clients identified their preference

over another by reference to the packaging.

of

for one brand

heroin to Figueroa and

15, 1992, Figueroa

designated

rest

promptly arrested.

Soto supplied the remainder.

and Soto

area

The

exchanged the drugs

alongside

the Maine

He

was

for cash at

Turnpike

and

were

authorities apprehended the appellant in

Massachusetts and, without objection,

trial.

On January

convicted and

removed him to Maine

sentenced in

appeal ensued.

II.
II.
___

Analysis
Analysis
________

A.
A.
__

Sufficiency of the Evidence

due course.

for

This

Sufficiency of the Evidence

___________________________

The appellant

appeal

argues

that

who is represented by fresh

the

government

presented

counsel on

insufficient

evidence

to justify a conviction.

Since the

appellant did not

preserve

by moving

for

sufficiency

challenge

judgment

acquittal at the close of all the evidence, see Fed.

___

29, our

review is limited

injustice.

Cir.

to the prevention of

See United States v.

___ _____________

Taylor, 54 F.3d
______

1995); United States v. McDowell,

______________
________

918 F.2d

of

R. Crim. P.

clear and gross

967, 975 (1st

1004, 1009-10

(1st Cir. 1990).

To

inquire

determine a

sufficiency challenge,

whether the evidence, taken

to the government

we customarily

in the light most favorable

a perspective that requires us to draw

every

plausible inference in line with the verdict and to resolve every

credibility conflict in the

jury

same fashion

permitted

a rational

to find each essential element of the offense of conviction

to have been proven beyond a reasonable doubt.

v. Olbres,
______

See United States

___ _____________

61 F.3d 967, 970 (1st Cir.), cert. denied, 116 S. Ct.

_____ ______

522 (1995); Maraj, 947 F.2d at

_____

in virtually

this

any

any other

burden by either

In a conspiracy case, as

criminal case,

the government can

direct or circumstantial

combination thereof.

F.2d 675, 679 (1st Cir.

522-23.

See
___

United States v.
_____________

meet

evidence, or by

Echeverri, 982
_________

1993); United States v. David,

_____________
_____

940 F.2d

722, 735 (1st Cir. 1991), cert. denied, 502 U.S. 1046 (1992).
_____ ______

The

merit.

appellant's sufficiency

Under the statute of conviction, 21 U.S.C.

incumbent

upon the

government to

agreed with Figueroa (and,

"other

challenge

persons"), at

crime

(b)(1)(C)

heroin

establish that

is lacking

in

846, it was

the appellant

according to the indictment, possibly

least tacitly,

distribution,

see
___

to commit

21

U.S.C.

the substantive

841(a)(1)

&

which constituted the object of their agreement, and

that he

thereafter participated in the

voluntarily.

See Echeverri, 982

___ _________

conspiracy knowingly and

F.2d at 679.

The record here

satisfies those criteria.

To

be sure,

the appellant

that the evidence shows no

between

him

underlies this

and

Figueroa.

plea:

makes an

impassioned plea

more than a buyer-seller relationship

We

agree

a buyer-seller

with

the premise

that

relationship, simpliciter,

is an insufficient predicate for a finding that the buyer and the

seller are guilty as coconspirators.

_________________

See, e.g., United States v.

___ ____ _____________

Mancari, 875 F.2d 103, 105 (7th Cir. 1989) (holding that the sale
_______

of drugs

in small

quantities is inadequate,

without additional

evidence, to support a finding of conspiracy to distribute

to others because

purchases

the seller could reasonably

are intended for the

premise provides the

this case.

to C, D,

vendor

believe that such

buyer's personal use).

appellant no

drugs

safe harbor on

But the

the facts

of

While a scenario in which

A sells to B (who resells

E, and F) may signify that A

and B are related only as

and vendee, such a

scenario may also

signify a broader,

more imbricated relationship.

See, e.g., United States v. Moran,

___ ____ _____________
_____

984 F.2d 1299, 1303 (1st Cir. 1993).

the core of

the issue.

Thus, the

Knowledge and intent are at

question in such

a case

is

whether the evidence surrounding the transaction(s) is sufficient

to allow a fairminded jury to find beyond a reasonable doubt that

A knew that B was reselling the drugs, and intended to facilitate

the resales.

See id.
___ ___

The evidence here, taken in the light most congenial to

the verdict,

establishes that the relationship

and Santiago contained

enough elements

between Figueroa

of "[c]ommon

knowledge,

interdependence, [and] shared purpose," id., to support a finding

___

that

they

were coconspirators.

appellant had

actual knowledge of

Figueroa

testified that

the follow-on sales

the

to Maine

residents.

Two

least one occasion

of

Figueroa's customers

the appellant

testified that

made a delivery

on at

of heroin

to

Figueroa's home and met some of his clients.

The foregoing testimony

circumstantial evidence.

of drugs

(fifty bags per

was amply corroborated by

The appellant sold

day) well beyond

the

Figueroa quantities

the outer limits

of

personal

use amounts and packaged them in a manner suggestive of

intended

resale.

quantities

financial

of heroin,

acted

taken

that the

agreement

regularity

the

of

amounts of

terms (especially the

to Figueroa),

finding

The

the

transactions,

money involved,

together, form

appellant and

tacit

and the

appellant's extension of credit

a sturdy

Figueroa had

foundation for

at least

to distribute the heroin to third parties.

upon that

the

agreement (or

so

the jury

a tacit

Since they

could

have

found), the appellant's conviction is sustainable by any measure.

Surely, it does not work an injustice.2

B.
B.
__

Venue
Venue
_____

The

appellant next

asserts that

he was

tried

in an

improper venue because he never committed a crime in the District

of

Maine.

This assertion

peradventure

waived.

that

venue is

See Fed.
___

is baseless.

a personal

R. Crim. P.

Federal Practice and Procedure

_______________________________

appellant

consented to

proceedings in Maine.

contesting venue.

It is

privilege which

18; see also

___ ____

306

his removal

settled beyond

Charles A. Wright,

(2d ed. 1982).

and to

can be

Here, the

the holding

He submitted to trial there

of the

without ever

He has, therefore, waived the right to raise a

____________________

2The appellant also claims

that he
this

that the evidence fails to

conspired to distribute the

claim for the reasons

drugs in Maine.
________

discussed in Part

show

We reject

II(B), infra, and

_____

for

the

added

reason

that

the

indictment

charges

drug

distribution conspiracy that took place in "Maine, Massachusetts,

and elsewhere," unanchored to a single locale.

venue-based challenge

Cordero, 668 F.2d

_______

Crim.

to his conviction.3

32, 44-45

See
___

(1st Cir. 1981);

P. 12(b)(2) (mandating waiver of

United States v.
_____________

see also Fed.

___ ____

R.

most defenses that could

have been, but were not, raised prior to trial).

In all events, the

venue

requirement is

argument fails on the merits.

designed to

from having to defend himself

connection to the

in a

place,

even

physically

actuation

if

890 F.2d 554

venue is

This court

(1st Cir.

proper in any

particular

in that

coconspirator

district.

drug distribution

sale and delivery of

See
___

has taken

not

id. at
___

558.

Thus,

occurs provides a lawful venue

prosecution of the offense.

See id.
___ ___

himself

conspiracy culminates

the controlled substance.

in which the culmination

was

1989),

district in

furtherance of the charged conspiracy

present

of a

no meaningful

offense with which he is charged.

conspiracy case

which an act in

criminal defendant

in a place that has

held in United States v. Uribe,

______________
_____

that

prevent a

The

The

in the

any place

for the

In

heroin

this

to Maine

instance,

the conspirators

residents knowing that

distributed

it would

into Maine and consumed there for the most part.

be introduced

Moreover, on at

least one occasion the

appellant's cohort, Figueroa,

delivered

heroin

to

Maine

locus

in

the

personally

furtherance

of

the

3The appellant's attempt to blunt this waiver by citing

the

____________________

alleged ineffectiveness of his

have

consistently

exceptional

held

circumstances

trial counsel is unavailing.

and

today

(not

ineffective assistance of counsel

See
___

United States
_____________

v. Mala,
____

now

reaffirm
present),

that,
a

absent

claim

of

cannot debut on direct appeal.

7 F.3d 1058,

1063 (1st

Cir. 1993)

(collecting cases), cert. denied, 114 S. Ct. 1839 (1994).

_____ ______

We

conspiracy (or so the jury could have found).

This single, overt

act, taking place in Maine, is itself sufficient to sustain venue

in the District

of Maine.

See id. at
___ ___

558-59; Cordero, 668 F.2d

_______

at 43.

C.
C.
__

Variance
Variance
________

The appellant claims a prejudicial variance between the

indictment

and

the

proof,

injurious spillover

conspiracy

(of

exhortations

from

which

and

also

claims

certain evidence

he was

not

are raised for the

that

regarding

member).

first time on

there

was

second

Because

these

appeal we review

them only for plain error.

See United States v. Arcadipane,

___ _____________
__________

F.3d 1, 6 (1st

A close look assures

the

Cir. 1994).

jurisprudence of

plain error,

41

us that, under

neither allegation

requires

reversal.

We start

existed

the

by addressing the allegation

between the indictment and the evidence.

claim

is as

follows.

Near the

end

of

attorneys presented a stipulation to the court.

confirmed that the

contraband seized from

that a variance

The genesis of

the trial,

the

The stipulation

Figueroa in Maine

at

the time

paper

of

type"

stipulation

than

the denouement

and fifty

comprised eighty-one

bags "of

the

erroneously described the

heroin.

It seems

likely that no

bags "of

plastic type."

the

But the

drugs as marijuana rather

one noticed the misnomer

for

the

court accepted

during closing

the

arguments each

stipulation

without comment,

side specifically

and

identified the

bags as containing

obvious

error in

heroin.

The appellant now

the stipulation

warrant vacation of the conviction.

The

whether the

key

variance

surrounding

rights of the accused.

point of whether a

the

sufficient to

We do not agree.

a claim

purported variance is sufficiently

the substantial

the

datum

is a

claims that

of

variance

severe to affect

See id. at 6-7.

___ ___

criminal defendant ever

____

is

Passing

can predicate a

claim of variance on the introduction of evidence to which he has

stipulated, the claimed variance is more apparent than real.

record

isolated

discloses

that

event.

The

trial testimony,

the

reference

indictment, the

the summations,

instructions all spoke exclusively

to

"marijuana"

was

opening statements,

and the district

The

an

the

court's jury

and unambiguously of heroin

not

marijuana.

Moreover,

there

is

nothing

in

the

trial

transcript that suggests any basis for a claim that the appellant

was either misled or surprised

and he has not broached any such

theory in his appellate briefs.

A criminal defendant

necessarily a perfect

one.

record, the misstatement

is entitled to a

Viewed in

is at

fair trial, not

the context of

worst the type

the whole

of minor

defect

that cannot plausibly be said to impact a defendant's substantial

rights.

See, e.g., United States v. Fermin Castillo, 829 F.2d

___ ____ ______________
________________

1194, 1196-97 (1st Cir. 1987) (reaching a similar conclusion when

the indictment

misstated

the

name

10

of

the

bank

that

issued

material

documents and

these documents

mischaracterized the

were used).

Since the

purpose for

which

stipulated misstatement

did not deprive the appellant of his due,

plain error is plainly

lacking.

In

a related vein,

spillover from one

hard

to follow.

the appellant

conspiracy to

another.

raises an

We

issue of

find this

claim

In virtually all cases involving allegations of

prejudicial spillover the trial

involves more than one defendant

or more than

one count.

See, e.g., United States v. Wihbey, 75

___ ____ ______________
______

F.3d

761, 774-75 (1st Cir.

1996); United States

_____________

F.2d

230, 248

cert. denied,
_____ ______

(1st Cir.),

v. Boylan, 898
______

498 U.S.

849 (1990).

Here, however, the appellant stood trial alone on a single charge

and the only evidence admitted at the trial was evidence deemed

relevant

to his guilt

or innocence on

that charge.

Thus, the

claim of prejudicial spillover is a non sequitur.

In

a vain

effort

appellant suggests that his

to overcome

this incongruity,

the

dealings with Figueroa were entirely

distinct from Soto's dealing with Figueroa, and that the evidence

anent the

Soto-Figueroa dealings "spilled

the jury against

him.

This

over" and

view misconceives both

conspiracy and the rules of evidence.

prejudiced

the law

of

It is settled that members

of a conspiracy need not all know each other, work

or

otherwise march

Sepulveda,
_________

S. Ct. 2714

1073, 1079

in lockstep.

See,
___

side by side,

e.g., United States v.

____ ______________

15 F.3d 1161, 1191 (1st Cir. 1993), cert. denied, 114

_____ ______

(1994); United States

_____________

v. Rivera-Santiago, 872
_______________

F.2d

(1st Cir.), cert. denied, 492 U.S. 910 & 493 U.S. 832
_____ ______

11

(1989).

The

indictment and

government's

here,

bill of particulars, posited

with

Figueroa as a

hear

the evidence of Soto's

linchpin.

most part without objection.

court's

theory

reception

of

The

as

limned

in

the

a single conspiracy

court permitted

involvement on that

the jury to

basis, for the

We discern no error in the district

the evidence.

See
___

Fed.

R. Evid.

401

(defining relevancy); see also United States v. Nazzaro, 889 F.2d

___ ____ _____________
_______

1158,

1168 (1st Cir. 1989) (applying abuse of discretion test to

admission of evidence).

D.
D.
__

Sentencing
Sentencing
__________

The

appellant's final

claim is

that the

lower court

improperly

4B1.1,

applied

the

to his case.

sentencing

court's

plenary review.

Cir. 1994).

career

offender

guideline,

Because this supposed

interpretation

of a

U.S.S.G.

bevue involves the

guideline,

we

afford

See United States v. Winter, 22 F.3d 15, 18 (1st

___ _____________
______

The guideline states:

A defendant

is a career offender

defendant was at least

the

time of

instant
that

controlled

either a

conviction
crime

substance
has

eighteen years old at

instant offense,

offense of

is

defendant

the

if (1) the

at

of

is a

the

felony

violence or

offense,

least

(2)

two

and (3)
prior

convictions of either a crime of

a
the

felony

violence or

a controlled substance offense.

U.S.S.G.

4B1.1 (Nov. 1992).

the appellant's predicate

The question before us

is whether

offenses crossed the two-prior-felony-

convictions threshold established by

4B1.1.

The

appellant's criminal

record

as disclosed

in the

12

presentence investigation

assault and

for

report included

battery against a

assault and battery with

(1) a

conviction for

police officer, (2)

a dangerous weapon

a conviction

(a work boot),

(3) multiple convictions on narcotics charges (including a charge

of

distributing heroin) stemming

from a single

arrest on March

20,

1990,

and

narcotics-related

(4)

another

set

charges (including

intent to distribute) stemming

1990.

The

of

multiple

convictions

possession of

heroin with

from a second arrest on

two drug arrests occurred within a

April 9,

few weeks of each

other and they were eventually consolidated for sentencing.

appellant claims

have listed under

that

that this consolidation rendered

items (3)

they had to be treated as

4B1.1.

See
___

U.S.S.G.

argues that because he

each

and (4) "related

of

the assault

and battery

appellant's

second argument

the crimes we

cases" and

& comment. (n.3).

received a sentence of under

a cognizable

The

meant

a single offense for purposes of

4A1.2(a)(2)

constitutes

on

predicate

He

one year on

convictions, neither

offense.

is clearly

also

of them

Inasmuch as

erroneous, we

the

need not

address the question of whether the two sets of narcotics charges

constitute

separate predicate offenses under the career offender

guideline.

U.S.S.G.

pertinent

part

as

4B1.2(1)

"any

defines

offense

a crime

under

of

federal or

violence

in

state

law

punishable by imprisonment for a term exceeding one year that . .

has as an element the use .

person of another."

. . of physical force against the

The appellant contends that neither

13

of his

prior convictions for assault and battery satisfy the requirement

of being

"punishable by

year" since

he received a

The guideline, however,

judgment

terms

imprisonment for

a term

six-month sentence on

does not

speak in terms

exceeding one

each occasion.

of a

judicial
________

(the length of the sentence meted out), but, rather, in

of

legislative
___________

applicable to the offense).

judgment

See
___

(the

U.S.S.G.

maximum

punishment

4B1.2, comment. (n.3)

(Nov. 1992) (explaining that a "'[p]rior felony conviction' means

a prior

. . . conviction

for an offense punishable

imprisonment for a term exceeding one

by death or

year, regardless of . .

the actual sentence imposed"); see also United States v. Sanchez,

___ ____ _____________
_______

917 F.2d 607, 615 (1st Cir. 1990) (reaching the same conclusion),

cert.
_____

denied, 499
______

Massachusetts,

and assault

commonwealth at

half years.

this light,

U.S. 977

(1991).

The offenses

and battery

the time by

was punishable

imprisonment of up

See Mass. Gen. L.

___

ch. 265,

the appellant's convictions for

constitute predicate

offenses within

offender guideline.4

Thus,

occurred in

in that

to two-and-one-

13A (1990).

Seen in

assault and battery

the purview of

the career

the sentencing court did not

err in

treating the appellant as a career offender.

____________________

4The appellant argues that

and battery
the

with a dangerous

"weapon" was

a pair

the later conviction for assault

weapon should be

of work

boots.

We

possible difference flows from this distinction.

we take

a categorical approach

excluded because
do not
For one

to the examination

see what

thing,

of predicate

offenses in order to determine whether they meet the requirements

of the career offender guideline.
18.

See, e.g.,
___ ____

Winter, 22 F.3d at
______

For another thing, assault and battery is no less a crime of

violence

because the

assailant

stomps his

victim rather

assaulting him in some more traditional manner.

14

III.
III.
____

Conclusion
Conclusion
__________

than

We

need go no further.

The other assignments of error

are patently meritless and do not warrant discussion.

reflects,

experienced

without

a fair

serious

trial

question,

in a

lawfully convicted and sentenced.

Affirmed.
Affirmed.
________

that

proper venue,

the

The record

appellant

and that

he was

15