FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. Daniel R. Domínguez, U.S. District
Lizarribar-Masini for appellant.
A. Schwartz, Assistant United States Attorney, with whom Rosa
Emilia Rodríguez-Vélez, United States Attorney,
Mariana E. Bauzá-Almonte, Assistant United States
Attorney, Chief, Appellate Division, and Julia M. Meconiates,
Assistant United States Attorney, were on brief, for
Howard, Chief Judge, Selya, Circuit Judge, and McConnell,
District Judge. [*]
MCCONNELL, DISTRICT JUDGE.
Naranjo-Rosario (Naranjo) was convicted of several drug and
gun offenses and was sentenced to 188 months in prison. Mr.
Naranjo argues on appeal that the district court erred in
denying his motion for judgment of acquittal on three counts
of the indictment; it erred in admitting the testimony of the
handler of a narcotics-detecting dog; and finally, that the
district court erred in calculating his sentence. After a
thorough review, we reject Mr. Naranjo's challenges and
affirm the judgment below.
recount the facts in the light most favorable to the jury
verdict, consistent with the court record below. United
States v. Noah, 130 F.3d 490, 493 (1st Cir. 1997).
Security Investigations (HSI), through undercover agent
Melvin Alvarado, initiated a sting drug operation in the
summer of 2012 wherein Mr. Alvarado would be the boat captain
in a scheme to import cocaine from the Dominican Republic
into Puerto Rico.
July meeting, Mr. Alvarado and co-defendants Mauricio
Molina-González and Didier
González-Castrillón negotiated a deal in which
Mr. Alvarado would buy between 70-80 kilograms of cocaine at
$19, 500 per kilogram. In an earlier conversation about his
fee, Mr. Alvarado and the co-defendants discussed a
transportation fee of between $1200 and $1600 per kilogram of
cocaine. Mr. Alvarado agreed to provide a car for the
delivery: a blue Nissan Pathfinder, which HSI equipped with a
González picked up the Pathfinder from Mr. Alvarado on
the day before the scheduled sale. Mr. González
indicated that a woman would deliver the drugs in the
Pathfinder the next day, but that the quantity had changed --
the 70-80 kilograms of cocaine were no longer available so
she would deliver 45 kilograms instead. Mr. González
drove away in the Pathfinder to a house on Domenach Avenue in
August 2, 2012, HSI observed the defendant take part in a
plan to switch the cars used in the drug transaction -- an
event that proved critical to the success of the sting
operation. Mr. González drove the Pathfinder to a
residential area in Carolina and stopped near a green Acura.
The Pathfinder was loaded with the cocaine. Cisnero
Paredes-Reyes (Paredes) was the driver of the Acura and Mr.
Naranjo was his passenger. Mr. Paredes and Mr.
González then switched cars -- Mr. Paredes got out of
the Acura and into the Pathfinder and Mr. González got
out of the Pathfinder and into the Acura as Mr. Naranjo's
passenger because Mr. Naranjo moved into the driver's
seat. Mr. Paredes drove the Pathfinder into a residential
neighborhood. Agents lost visual sight of the Pathfinder, but
they continued to track the vehicle through the GPS tracker.
Mr. Naranjo also drove away, with HSI surveilling the Acura.
He drove the Acura into a residential neighborhood and the
HSI agents parked at a nearby Walgreens, waiting for further
agents saw the Pathfinder again, but this time, Ms. Raiza
Rivera-Marin was driving. Mr. González was no longer
in the Acura, but in a gray RAV4 following closely behind Ms.
Rivera. The agents stopped the Pathfinder and arrested Ms.
Rivera. A search of the car revealed forty-five bricks of
cocaine, with a total weight of 53.7 kilograms. Agents also
arrested Mr. González and his passenger, Mr. Molina,
in the RAV4.
locations they gleaned from the GPS tracker, HSI agents went
to the residential neighborhood in Carolina to continue their
investigation. They targeted a residence belonging to Mr.
Paredes -- a location where the Pathfinder had stopped
earlier for six minutes. Agents surveilled Mr. Paredes'
residence and ultimately observed Mr. Paredes and Mr. Naranjo
pull up to the house in the green Acura.
executed a search warrant on the residence. They did a
security sweep and then a Customs and Border Patrol agent
walked through with a drug-sniffing dog. The dog alerted
three times in the bedroom where Mr. Naranjo had been staying
as a guest -- a room that he was slow to emerge from when the
police announced their arrival. Agents ultimately seized from
that bedroom cash totaling $118, 950(some from a five-gallon
paint pail and some from in between the mattress and box
spring of the bed), a Glock pistol with an obliterated serial
number, a loaded magazine, and money. Mr. Paredes initially
said the cash found in his house was not his, but he later
claimed at trial that the money belonged to him.
Naranjo and his co-defendants were indicted for various drug
trafficking offenses. Mr. Naranjo was indicted on charges of
conspiracy to possess with the intent to distribute cocaine
(Count One), see 21 U.S.C. §§ 841(a)(1),
846; conspiracy to import controlled substances from the
Dominican Republic (Count Two), see 21 U.S.C.
§§ 952, 963; one count of possession with intent to
distribute controlled substances (Count Three), see
21 U.S.C. § 841(a)(1); one count of importation of
controlled substances (Count Four), see 21 U.S.C.
§ 952; possession of a firearm in furtherance of a drug
trafficking crime (Count Five), see 18 U.S.C. §
924(c)(1)(A); and possession of a firearm with an obliterated
serial number (Count Six, see 18 U.S.C. §
the jury trial, an evidentiary issue arose that merits
exposition here because it forms the basis for one of Mr.
Naranjo's appellate issues. During the cross-examination
of the HSI agent, it was first revealed that a drug-sniffing
dog was present during the walkthrough of Mr. Naranjo's
bedroom. When the work of this canine investigator came up,
the defense lawyer asked for a sidebar. The government
indicated that it did not know about the dog, had never
received a report about a canine sweep, and had not
designated any evidence about such a sweep. In anticipation
of potential exculpatory evidence in the event that the dog
did not alert officers to the scent of drugs in the house,
the district court ordered the government to provide defense
counsel with the dog handler's name. Before the handler
could appear in court, Mr. Naranjo filed a motion for a
mistrial because the dog handler advised him that the dog
alerted to the presence of drugs in three different areas of
the bedroom where Mr. Naranjo was staying. He argued
government misconduct, prejudice, and also that he would have
reconsidered going to trial if he had known about this
court indicated that it was inclined to prevent both sides
from talking about the dog sweep. But the government argued
that the handler needed to testify to clarify the facts for
the jury because now that they knew a drug-sniffing dog was
involved, they would assume that the dog did not discover any
drugs if they did not hear from the dog's handler.
court asked for briefing about whether the handler's
testimony would be that of an expert or a lay witness. The
government argued he was a fact witness and would only
testify from personal knowledge. Mr. Naranjo argued that the
handler was an expert and was not timely disclosed. He also
argued that he would need his own expert to challenge the
dog's reactions. The court agreed with the government and
allowed the dog handler to testify as a fact witness, but in
deference to Mr. Naranjo's concerns, provided three
protections: it gave the parties more time to prepare,
allowed Mr. Naranjo to hire an expert, and required the
handler to first testify outside the presence of the jury so
that Mr. Naranjo's counsel would know what he was going
jury heard the testimony and ultimately found Mr. Naranjo
guilty on all counts. Mr. Naranjo moved for judgment of
acquittal under Rule 29 of the Federal Rules of Criminal
Procedure; that motion was denied. Mr. Naranjo also objected
to the pre-sentence report (PSR) on three grounds: that the
drug quantity was between 15 and 50 kilograms so his base
offense level was incorrect in the PSR; that he should have a
reduced offense level because of his role in ...