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APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. José Antonio Fusté, U.S. District Judge.
Linda Backiel for appellant.
Dina Ávila-Jiménez, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Juan Carlos Reyes-Ramos, Assistant United States Attorney, were on brief, for appellee.
Before Torruella and Lipez, Circuit Judges and Gelpí ,[*] District Judge.
LIPEZ, Circuit Judge.
Appellant Cruz Roberto Ramos-González (" Ramos" ) was tried a second time on a drug trafficking charge after this court concluded that his Sixth Amendment right to confrontation had been violated at his first trial.
See United States v. Ramos-González, 664 F.3d 1, 2 (1st Cir. 2011). Ramos was again convicted of possessing more than 500 grams of cocaine with the intent to distribute the narcotic. He now raises numerous challenges to that second conviction and the resulting 327-month sentence. Although we find no reversible trial error, we conclude that a remand for resentencing is necessary. In designating Ramos as a career offender under the Sentencing Guidelines, the district court relied on a predicate offense that does not -- on the record before us -- qualify for that purpose. Hence, Ramos must be resentenced without the career offender enhancement.
A. Factual Background
The facts of the crime, as the jury could have found them, are as follows. On July 4, 2002, two Puerto Rico police officers on traffic duty attempted to stop a red pickup truck owned by Ramos because the vehicle's windows were tinted darker than permitted by law. The driver ignored the police car's siren and flashing lights and sped away, with the officers, Javier Reyes-Flores (" Reyes" ), and Wanda Vélez-Mojica (" Vélez), in pursuit. The truck soon
crashed, and the driver exited the vehicle. After briefly looking at Reyes and raising his arms, the driver turned and fled. Although Reyes pursued him over a fence, the driver successfully avoided capture.
Meanwhile, back at the now-abandoned truck, Vélez had found two plastic-wrapped blocks, subsequently determined to be cocaine, on the driver's side floor. Among the other items found in the vehicle were $1,068 in cash, traffic tickets issued to Ramos, his Social Security card, plastic bags holding eighteen bullets, some cellular phones, and two forms of identification with photos of Ramos -- his driver's license and electoral card. Based on the photos, Reyes identified Ramos as the driver who had fled. Reyes also recognized Ramos as the same individual whom he had seen on two other recent occasions when he was investigating a motorcycle accident.
B. Procedural Background
Ramos was initially prosecuted on drug charges by Puerto Rico authorities, but the commonwealth proceedings ended at the preliminary hearing stage with a finding of no probable cause. In June 2007, about a week before the statute of limitations would have expired on the 2002 episode, federal authorities filed an indictment charging appellant with one count of possession with intent to distribute more than 500 grams of cocaine. See 21 U.S.C. § 841(a)(1). Appellant eluded arrest for two years, until April 2009, when he was taken into custody in the Dominican Republic. Later that year, a jury found appellant guilty of the drug trafficking crime, and he was sentenced to 327 months in prison. This court vacated that conviction because of a violation of appellant's Sixth Amendment right to confrontation, which occurred when a chemist was allowed to testify about the results of a drug analysis that he did not perform.
See Ramos-González, 664 F.3d at 2.
Appellant was retried in early 2012. At that second trial, he offered a new alibi defense: he had been at the beach with several people, including the mother of one of his children, on the day of the high-speed chase in 2002. In addition, he presented a witness who identified someone else -- the witness's brother, now deceased -- as the driver of Ramos's truck that day. The jury nonetheless again found appellant guilty of the drug possession charge.
At sentencing, the district court treated appellant as a career offender based on two prior convictions under Puerto Rico law. See U.S.S.G. § 4B1.1(a). One of the prior crimes -- a 1991 conviction for first-degree murder -- undisputedly qualifies as a predicate offense for career offender purposes. The other qualifying conviction was based on a paragraph in appellant's Presentence Report (" PSR" ) listing a 1987 charge under Article 256 of the Puerto Rico Penal Code, which criminalized the " use [of] violence or intimidation against a public official or employee." See P.R. Laws Ann. tit. 33, § 4491 (1998). The
paragraph also included under the same date the notation " Dist. Cont. Substances," evidently describing a drug crime (i.e., distributing controlled substances). In explaining this conviction, the PSR states: " According to the judicial documents, on November 15, 1986, the defendant possessed with the intent to distribute 2.68 grams of cocaine. He further resisted the arrest by pushing and grabbing one PRPD officer." The district court rejected appellant's objection that the supporting documents were not " official."
The court's use of the career offender classification resulted in a Base Offense Level (" BOL" ) of 34 and a Criminal History Category (" CHC" ) of VI, with a Guidelines sentencing range of 262 to 327 months. Without career offender status, appellant would have had a BOL of 30 and a CHC of V, with a Guidelines range of 151 to 188 months. The district court imposed the high end of the higher range, 327 months.
On appeal, Ramos asserts that his conviction must be vacated and his indictment dismissed because he was denied due process by the federal authorities' pre-indictment delay. He also argues that the district court made multiple errors at trial, including refusal to allow an alibi witness, rejecting a missing witness instruction, and misleading the jury with its instructions on possession. He further claims that his sentence is both erroneously calculated and unreasonably harsh. Finally, he maintains that the court should have dismissed the case against him because of government misconduct.
We turn first to Ramos's claims relating to his conviction, beginning with the two asserted problems that Ramos says require dismissal of the charge against him.
A. Pre-indictment Delay
Shortly after this court vacated Ramos's original conviction and remanded the case to the district court, Ramos filed a renewed motion to dismiss the indictment on the ground that the government's delay in filing the drug trafficking charge violated his due process rights. He emphasized that the indictment had been brought a week before the five-year limitations period would have barred his prosecution, and the second trial would occur more than nine years after the events at issue. Ramos complained that the passage of time had eroded his ability to mount a vigorous defense because of dimmed memories and the loss of witnesses and evidence.
The district court denied the motion with a docket order, and we review that decision for abuse of discretion, United States v. Bater, 594 F.3d 51, 53 (1st Cir. 2010). We have observed that " excessive pre-indictment delay can sometimes, albeit rarely, violate the Fifth Amendment's
Due Process Clause if the defendant shows both that the 'delay caused substantial prejudice to his right to a fair trial' and that 'the [g]overnment intentionally delayed indictment . . . to gain a tactical advantage.'" Id. at 54 (quoting United States v. Picciandra, 788 F.2d 39, 42 (1st Cir. 1986)) (alteration and omission in original); see also United States v. Marion, 404 U.S. 307, 325, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971).
In asserting prejudice, Ramos claims that he was denied the opportunity to present the testimony of José Néris Rodríguez (" José Néris" ), who Ramos maintains was the driver involved in the high-speed chase and who died in 2006, while the government was able to take advantage of the delay by asking each testifying defense witness why he or she had waited so long to come forward with their exculpatory testimony. Ramos also claims prejudice in the disappearance of " two critical sources of identification evidence" : a pair of flip-flops found near the abandoned red truck and a fanny pack belonging to José Néris that he claims was in the truck. He cites as well the loss of recordings made at the preliminary hearing in commonwealth court, which he describes as " invaluable tools" to confront Officer Reyes about his inability to identify Ramos as the driver shortly after the events.
The government offers rejoinders to each of these claimed disadvantages, emphasizing that most depend on " rank conjecture" -- particularly Ramos's assumption that José Néris would have implicated himself as the driver of the truck and, hence, possessor of the cocaine. The government also challenges Ramos's assertion that a fanny pack belonging to Néris was found in the vehicle, noting that such an item does not appear on any inventory list, and it asserts that the sharp cross-examination of defense witnesses resulted not from the passage of time but from the witnesses' failure to inform investigators early on of their supposed knowledge of the events. Moreover, the government notes that Ramos was able to present his alibi defense through witnesses other than José Néris, " even if not to the full extent he desired." United States v. DeCologero, 530 F.3d 36, 78 (1st Cir. 2008).
We need not dwell on the issue of prejudice, however, because we find no evidence that the government purposefully delayed the indictment to gain a tactical advantage at trial. Ramos urges us to find sinister motive in the government's decision to bring this case on the eve of a separate 47-defendant, ten-count indictment alleging that he was the kingpin of a multi-year drug trafficking conspiracy. Trial in the conspiracy case originally was set for mid-August 2009, two weeks before the trial in this case, and Ramos argues that the nearly simultaneous prosecutions were problematic for him and advantageous for the government. Ramos claims he felt pressure to plead guilty in one of the cases, and he asserts that a resolution in one case would " virtually preclude his exercising his right to testify in the second." 
Although the back-to-back trial schedule was no doubt difficult for Ramos, we see no evidence that the timing was orchestrated by the government for the purpose of imposing that burden. Indeed, the government could not have known that the complex multi-defendant case would be set for trial at the same time as this single-count prosecution against only Ramos. The government attributes the length of the delay to the case's transfer from commonwealth court to federal court, followed by the case's shifting assignment among prosecutors. At oral argument, government counsel explained that, in her role as lead prosecutor in the conspiracy investigation, she was alerted to this case and discovered that the statute of limitations was about to expire. She therefore " tried to move as quickly as possible" in securing an indictment.
Ramos has offered no reason for us to discredit the government's plausible explanation and, hence, no basis for us to conclude that the district court abused its discretion in denying his motion to dismiss for pre-indictment delay. As we have observed, " [t]he Due Process Clause has only a limited role in this context because the statutes of limitations provide the primary protection against undue pre-indictment delays."
DeCologero, 530 F.3d at 78. Although there may be instances when prosecutorial delay will be sufficiently egregious to support a due process violation even absent tactical purpose, this is not such a case.
See United States v. Lovasco, 431 U.S. 783, 795 n.17, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977) (noting the government's concession that due process might be violated by delay " incurred in reckless disregard of circumstances, known to the prosecution, suggesting that there existed an appreciable risk that delay would impair the ability to mount an effective defense" (internal quotation marks omitted)).
B. Government Misconduct
Three days before the retrial in this case, the government provided Ramos with FBI reports (" 302 Reports" ) recounting interviews that had been conducted in 2006 and 2007 with the two officers, Reyes and Vélez, who had been involved in the 2002 vehicle chase. The content of Reyes's interviews was consistent with his testimony at the first trial, but the 302 reports of Vélez's statements revealed conflicts with her trial testimony. In particular, one 302 Report stated that Vélez had said she " did not see the driver's face during or after the chase," while at trial she testified that she noticed Ramos's " light-colored eyes." Ramos moved to exclude Vélez as a government witness at the second trial because of the inconsistencies, but following that motion neither the government nor the defense sought to call Vélez to testify.
After Ramos was convicted and sentenced for the second time, he moved to dismiss the indictment for prosecutorial misconduct. In the portion of the motion most pertinent here, he complained that
the government had intentionally concealed material evidence -- the 302 reports of Vélez's interviews -- that would have revealed her false testimony at the first trial.
See Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (holding that, upon request, prosecution must turn over to the defense favorable evidence that is material to guilt or punishment); United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) (holding that the duty to disclose extends to impeachment evidence); United States v. Acosta-Colón, 741 F.3d 179, 195 (1st Cir. 2013) (explaining that one type of Brady violation occurs when " undisclosed evidence shows that prosecutors knowingly used perjured testimony or allowed false testimony to go uncorrected" ). In addition, the motion charged a " recurrent pattern of concealment and deception," citing the same prosecutor's belated disclosure of evidence in the contemporaneous conspiracy case in which Ramos also was a defendant. Ramos argued that dismissal of the indictment was the appropriate sanction for persistent government conduct " undertaken with such flagrant disregard for Mr. Ramos-Gonzalez's constitutional rights."
In considering the motion, the district court addressed both the alleged misconduct in this case (the possession case) -- allowing Vélez to testify falsely at Ramos's first trial -- and the alleged withholding of evidence in the separate, 47-defendant conspiracy case. With respect to the possession case, the court found no prejudice because Vélez did not testify at the second trial: " [A]ny error her conflicting testimony may have originally introduced was cured in this subsequent and new trial."
United States v. Ramos-González, No. 3:07-cr-00262-JAF, Memorandum and Order, (D.P.R. Feb. 1, 2013), at 5 (" Memorandum and Order" ). As for the government's allegedly improper actions in the conspiracy prosecution, the court looked to a decision issued in that case on the defendants' motion for a new trial. In rejecting a Brady claim based on some of the same allegations of misconduct, a different trial judge had concluded that the undisclosed documents were either cumulative or collateral impeachment evidence,
United States v. Ramos-González, 747 F.Supp.2d 280, 294 (D.P.R. 2010), and that the prosecutor had not withheld evidence in bad faith, id. at 288. The court in this case adopted and reaffirmed that assessment of the government's actions in the conspiracy trial: " The government neither committed a Brady violation nor engaged in prosecutorial misconduct when it produced materials to the defense post-trial." Memorandum and Order, at 4 (citing
Ramos-González, 747 F.Supp.2d at 294; United States v. Ramos-González, No. 07-318, 2011 WL 2144215, at *2 (D.P.R. May 31, 2011)). Concluding that Ramos suffered no prejudice in either the conspiracy trial or the possession retrial, the court denied the motion to dismiss.
A district court's decision to deny a motion to dismiss based on prosecutorial misconduct is reviewed for abuse of discretion. United States v. Dancy, 640 F.3d 455, 463 (1st Cir. 2011). We previously
have recognized that, given " the constitutionally mandated independence of the grand jury and the prosecutor, courts should be reluctant to dismiss an indictment." United States v. Rivera-Santiago, 872 F.2d 1073, 1088 (1st Cir. 1989) (internal quotation marks omitted). Moreover, once a defendant has been convicted, the sanction of dismissing an indictment " is employed in only truly extreme cases of egregious prosecutorial misconduct," id. (internal quotation marks omitted), and only where the misconduct " 'so poisoned the well' that it likely affected the outcome of the trial,"
Dancy, 640 F.3d at 463 (quoting United States v. Azubike, 504 F.3d 30, 39 (1st Cir. 2007)).
We are satisfied that the district court did not abuse its discretion in refusing to dismiss the indictment here. The unrevealed inconsistency in Vélez's statements relates to impeachment rather than innocence. Moreover, the undisclosed reports also differed on the disputed fact. The FBI 302 Report in which Vélez is quoted as saying she did not see the driver's face -- a statement inconsistent with her trial testimony -- is dated June 25, 2007. However, in a report prepared eighteen months earlier, in January 2006, she described the driver as she had at trial as having " light colored eyes." The later report notes that Vélez " opened the interview by stating that she did not have her notes of an incident which occurred on July 4, 2002" and that she " attempted to provide the facts of that incident as well as she could from memory." The discrepancies between the two FBI reports, together with the disclaimer in the second report suggesting that the earlier one may be more accurate, inevitably would have reduced the impact of the inconsistency between Vélez's trial testimony and the June 2007 report. Moreover, although the disclosure should have come earlier, the government provided the reports before the retrial began. In these circumstances, the district court supportably concluded that the government's nondisclosure and its use of Vélez's testimony in the first trial was not an extreme case of prosecutorial misconduct. See Rivera-Santiago, 872 F.2d at 1088.
In addition, as the district court recognized, any prejudice arising from the failure to disclose Vélez's conflicting reports did not recur at the second trial because the government did not call her as a witness. Nonetheless, Vélez remained available, and if Ramos's counsel had thought it useful to reveal the inconsistencies in her statements, she could have been called as a defense witness.
Nor can we conclude that the district court abused its discretion in rejecting the motion to dismiss based on the government's cumulative conduct in Ramos's two independent cases. As an ...