APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Daniel R. Domínguez, U.S. District Judge.
Jane Elizabeth Lee, for appellant.
John A. Mathews II, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.
Before Thompson, Kayatta, and Barron, Circuit Judges.
THOMPSON, Circuit Judge.
Francisco Rodríguez-Soler wants us to undo his conviction for various drug and firearm charges. His appeal rises or falls depending on whether the district judge slipped by admitting pictures showing him with accused coconspirators and by allowing police officers to testify about the pics. His appeal falls, for reasons revealed below. And so when all is said and done, we affirm.
If our defendant were questioning the sufficiency of the evidence against him, we would of course narrate the facts in the light most flattering to the government. See, e.g., United States v. Tum, 707 F.3d 68, 69 (1st Cir. 2013). But for cases like his -- ones with no sufficiency challenge, just plenty of evidentiary issues -- there is surprisingly no clear consensus on the subject. Some opinions say that we can still retell the facts in the light most favorable to the government. See, e.g., United States v. Bunchan, 580 F.3d 66, 67, 71 (1st Cir. 2009); United States v. Benedetti, 433 F.3d 111, 113, 116-18 (1st Cir. 2005); United States v. Mercado, 412 F.3d 243, 245, 248-50 (1st Cir. 2005). Others say that we ought to present the facts in a balanced way, without favoring either side. See, e.g., United States v. Felton, 417 F.3d 97, 99, 100-02 (1st Cir. 2005); United States v. Bartelho, 129 F.3d 663, 667 n.1, 676-78 (1st Cir. 1997); United States v. Procopio, 88 F.3d 21, 23-24, 29-30 (1st Cir. 1996). As best we can tell, we are the first panel to note this split. But whatever the exact contours of our review, none of it matters here -- for even using the balanced-presentation approach (which is surely the better of the two from a defendant's perspective), Rodríguez-Soler's appeal still falters.
HOW THE CASE GOT HERE
A federal grand jury indicted Rodríguez-Soler for conspiring to possess illegal drugs with intent to distribute within 1,000
feet of a protected area, conspiring to possess a firearm during and in relation to a drug-trafficking crime, and possessing (or aiding and abetting the possession of) a firearm in furtherance of a drug-trafficking crime. The government's theory of guilt at trial was straightforward: Rodríguez-Soler served as the right-hand man to Christian A. Figueroa-Alvardo, also known as " Tatón" (which is what we will call him), who ran a drug point at a public-housing complex. And the government offered much evidence in the hopes of proving its case.
For example, some accused conspirators -- having flipped after getting caught -- testified about how Rodríguez-Soler was " one of the bosses" at the drug point, supervising the conspiracy's underlings and handling problems whenever the need arose, procuring and preparing drugs for sale, carrying and using guns to protect the conspiracy's turf, etc. And a number of police officers testified about their investigation of the case, like how they had set up video equipment in empty apartments to record what was going on at the drug point and how they had given informants hidden cameras to capture drug buys. One officer also explained how he had found Rodríguez-Soler's cell phone at an area in the complex where drug deals went down. The phone had a photo of Rodríguez-Soler holding what appeared to be a rifle.
On top of that, the jury had before it two key categories of exhibits (admitted through the officers' testimony). The first involved surveillance videos, one of which showed Rodríguez-Soler getting out of his car near the drug point and talking to conspirators. The second involved two sets of photos.
Set one showed Rodríguez-Soler with conspiracy members outside a police station following Tatón's arrest on an unrelated horse-theft charge. For simplicity we will call these pics the " police-station photos." Rodríguez-Soler's lawyer did not object when the judge admitted them, though he did object -- unsuccessfully -- on relevance and prejudice grounds after an officer ID'd a few persons in the pics and was about to say what he had seen one of them " doing" at the housing project before. That officer later testified without objection that those appearing with Rodríguez-Soler in the police-station photos were under investigation for " the criminality" occurring at the drug point. Later still another officer testified without objection that Rodríguez-Soler went to the station with " other persons" who " are also
members" of Tatón's " organization" to find out what had happened. And then a third officer testified without objection that those who ended up outside the station were not under arrest but had gone there to support Tatón, " who was this group's leader." " I took a photograph of them," the officer said, " and that was the first time that I had seen him" -- meaning Rodríguez-Soler.
The second set of pics showed Rodríguez-Soler with conspiracy members after being pulled over for an unrelated traffic violation near the drug point. Our defendant was the car's driver. For clarity we will call these pics the " traffic-stop photos." Rodríguez-Soler's lawyer voiced no objection when the judge admitted these photos into evidence or when the officer testified about them.
Undaunted, Rodríguez-Soler tried hard to poke holes in the government's case. His lawyer, for starters, vigorously cross-examined the cooperating witnesses about their motives for testifying, touching on the agreements they had negotiated with prosecutors and exploring their lives of crime. His attorney also got the officers to admit to various things, including that one cannot tell by looking at the cell-phone photo whether the rifle was real or fake, that not everyone appearing in the surveillance videos was a drug dealer, and that nothing shows the police found drugs during the traffic stop. Rodríguez-Soler's witnesses described him as a respectful, hardworking university student who did not sell drugs and was always trying to improve himself. Even Rodríguez-Soler took the stand, testifying that he lived at the housing complex in a building near the drug point, that he had parking near the drug point, that he owned no guns, that he had known Tatón and other alleged conspirators for years but had no clue that they were drug dealers, that the police found no drugs during the traffic stop, and that he had nothing to do with the drug point.
The jury found Rodríguez-Soler guilty on all counts. And the judge sentenced him to concurrent 188-month prison terms on counts 1 and 2, and a ...