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United States v. Naranjo-Rosario

United States Court of Appeals, First Circuit

September 15, 2017

LEONEL NARANJO-ROSARIO, Defendant, Appellant.


          Lydia Lizarribar-Masini for appellant.

          Mainon 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 appellee.

          Before Howard, Chief Judge, Selya, Circuit Judge, and McConnell, District Judge. [*]


         Leonel 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.

         I. BACKGROUND

         We 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).

         Homeland 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.

         At a 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 tracking device.

         Mr. 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 San Juan.

         On 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 instructions.

         The HSI 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.

         Using 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.

         Agents 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.

         Mr. 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. § 922(k)).

         During 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 evidence.

         The 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.

         The 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 to say.

         The 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 ...

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