United States Court of Appeals

For the First Circuit

No. 12-2490

UNITED STATES OF AMERICA,

Appellee,

v.

YAMIL NAVEDO-RAMIREZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Pérez-Giménez, U.S. District Judge]

Before

Lynch, Chief Judge,

Howard and Kayatta, Circuit Judges.

Irma R. Valldejuli for appellant.

Monique T. Abrishami, with whom Rosa Emilia Rodríguez-Vélez,

United States Attorney, Nelson Pérez-Sosa, Assistant United States

Attorney, and Francisco A. Besosa-Martínez, Assistant United States

Attorney, were on brief, for appellee.

March 30, 2015
LYNCH, Chief Judge. This case concerns the jury's

rejection of a duress defense after the defendant took the stand. 

Defendant Yamil Navedo-Ramirez, an 18-year veteran of the Puerto

Rico Police Department (PRPD), provided armed protection at a sham

drug transaction orchestrated by the FBI as part of a sting

operation designed to identify corrupt police officers in Puerto

Rico. She was 37 years old at the time, was divorced, and had two

sons, aged 20 and 14. She was convicted of aiding and abetting an

attempt to possess with intent to distribute five kilograms or more

of cocaine and possession of a firearm in furtherance of a drug

trafficking crime and sentenced to 181 months imprisonment. The

sting operation, "Operation Guard Shack," netted a number of

corrupt police officers. See, e.g., United States v. GonzálezPérez, 778 F.3d 3 (1st Cir. 2015); United States v. Diaz-Castro,

752 F.3d 101 (1st Cir. 2014); United States v. Delgado-Marrero, 744

F.3d 167 (1st Cir. 2014); United States v. Díaz-Maldonado, 727 F.3d

130 (1st Cir. 2013).

Navedo-Ramirez appeals, arguing that the district court

committed various evidentiary errors. She also argues that the

court should have granted her a downward variance in sentencing,

alleging, incorrectly, that the government engaged in sentencing

factor manipulation. We affirm her conviction and sentence.

I.

In 2008, the FBI began Operation Guard Shack, aimed at

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combating corruption in the PRPD. The FBI recruited PRPD officers

to work as confidential informants, and the informants invited PRPD

officers whom they suspected of corruption to provide armed

protection at sham drug transactions staged by the FBI. DiazCastro, 752 F.3d at 104. The informants often encouraged the

officers to recruit other officers into the scheme. See, e.g., id.

at 104-05; Díaz-Maldonado, 727 F.3d at 134-35.

On April 9, 2010, Wendell Rivera-Ruperto, a former

romantic partner of Navedo-Ramirez, provided security services for

one of the sham drug transactions at an apartment complex in the

Isla Verde sector of San Juan, Puerto Rico. Rivera-Ruperto was

informed that if he wanted to continue providing security for the

drug deals, he would need to recruit an additional police officer

to participate. He stated that his wife was a police officer and

could accompany him to the next transaction. Later events showed

that Rivera-Ruperto, who was unmarried, was referring to NavedoRamirez, his ex-girlfriend, who did come with him to the next

transaction.

Five days later, on April 14, 2010, Rivera-Ruperto and

Navedo-Ramirez arrived at the supposed drug transaction at the

apartment complex. Both were armed. According to a videotape of

the transaction, which was played for the jury, and to the

testimony of one of the undercover agents who participated in the

transaction, Navedo-Ramirez chatted amicably and laughed with the

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agents, observed the entirety of the transaction, and escorted the

"buyer" of the sham drugs to the door after it was completed. She

showed no reluctance to be involved. The undercover officers paid

her $2,000 for her services. The agent testified that, after he

paid Navedo-Ramirez, he told her that he "like[d] the smell . . .

of cocaine and money together," and she laughed. She never tried to

report what happened.

Navedo-Ramirez was arrested on September 21, 2010, for

her involvement in the April 14, 2010, transaction and charged with

(1) conspiracy to possess with intent to distribute over five

kilograms of cocaine, see 21 U.S.C. §§ 841(a), 846; (2) aiding and

abetting an attempt to possess with intent to distribute over five

kilograms of cocaine, see 21 U.S.C. §§ 841(a), 846; and (3)

possession of a firearm in furtherance of a drug crime, see 18

U.S.C. § 924(c).

At her May 2012 trial, Navedo-Ramirez took the stand in

her own defense. She testified that she had a long history of

suffering from domestic abuse by various men, including most

recently at the hands of Rivera-Ruperto, with whom she did not

live, but had dated. She stated that her relationship with RiveraRuperto lasted approximately two months, from August to October

2009. Their relationship was initially amicable, but in midOctober 2009, Rivera-Ruperto became physically and emotionally

abusive, and Navedo-Ramirez broke off the relationship shortly

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afterward. In the aftermath of the breakup, Navedo-Ramirez

testified, Rivera-Ruperto continued to abuse her, sent her

threatening pictures, and threatened to have her and her younger

son killed if she insisted on ending the relationship or told

anyone about his conduct. In particular, she said, in November

2009, he forced her to drink alcohol and raped her; he later

brought a hitman to her house, introduced the hitman to her son,

and told the hitman her son's name and that he was "the reason []

for which she lives." Navedo-Ramirez never reported any of this to

the police.

Navedo-Ramirez testified that in April 2010, RiveraRuperto called her and "insist[ed]" that she accompany him to his

sister's house. After initially refusing, she agreed to meet

Rivera-Ruperto on April 14. Instead of going to his sister's

house, he drove her to the drug transaction. Navedo-Ramirez

maintained that she did not know that Rivera-Ruperto was leading

her to a drug deal until she arrived at the apartment and saw a

duffel bag and several kilos of cocaine. Navedo-Ramirez admitted

that she was present at the drug transaction and "[went] along with

the game," but she stated that she did so only because she feared

for her and her son's lives.

During closing arguments, defense counsel argued that

Rivera-Ruperto had forced Navedo-Ramirez to participate in the drug

transaction and that Navedo-Ramirez lacked the requisite intent to

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be convicted of the crimes charged. The jury acquitted NavedoRamirez on the conspiracy charge but found her guilty on the

charges of aiding and abetting an attempt to possess with intent to

distribute five kilograms or more of cocaine and possession of a

firearm in relation to a drug trafficking crime.

On November 16, 2012, the district court sentenced

Navedo-Ramirez to 121 months imprisonment as to the drug count and

60 months as to the firearm count, to run consecutively. This

appeal followed.

II.

Navedo-Ramirez argues that the district court erred in

refusing to admit into evidence (1) the testimony of Dr. Carol

Romey, Navedo-Ramirez's proffered expert on Battered Woman Syndrome

(BWS), (2) Rivera-Ruperto's prior domestic violence conviction, and

(3) Navedo-Ramirez's PRPD performance evaluations. We review these

evidentiary rulings for abuse of discretion. Delgado-Marrero, 744

F.3d at 179 (citing United States v. Pelletier, 666 F.3d 1, 5 (1st

Cir. 2011)); United States v. Giambro, 544 F.3d 26, 32 (1st Cir.

2008).

A. Exclusion of BWS Expert

Navedo-Ramirez sought to introduce the testimony of Dr.

Romey, an expert on BWS, who would have testified about the general

nature of the syndrome. More specifically, defense counsel sought

to have Dr. Romey testify about the impact of domestic abuse on

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women generally in order to provide context for the defendant's

testimony and possibly explain the potential impact that the

history of violence Navedo-Ramirez had experienced may have had on

her. Navedo-Ramirez maintains that the testimony was relevant to

whether she possessed the requisite intent to commit the crimes

charged and to whether she acted under duress. Before defendant

testified, the district court agreed that, in general, testimony

about the long-term effects of being battered or domestic violence

in general could well be relevant in a case where a defendant

claimed that she engaged in criminal activity only because she was

forced to by an abusive domestic partner. United States v.

Ramírez, No. 10-344(PG), 2012 WL 733973, at *3 (D.P.R. Mar. 6,

2012); see generally United States v. Marenghi, 893 F. Supp. 85,

92-97 (D. Me. 1995) (holding that expert testimony on BWS may be

admitted to support a duress defense).

After defendant testified, her counsel offered the expert

testimony. The court excluded Dr. Romey's testimony, finding that

it would not be helpful to the jury because Navedo-Ramirez's

testimony had adequately conveyed her contention that she

participated in the drug transaction because she feared for her

son's life and her own:

Based on the history that's before the jury as

to her treatment by her first husband, her

third husband and by [Rivera-Ruperto] . . . .

[s]he was fearful of him, the photographs,

. . . the pulling of the hair, the punch,

whatever, when he said you are going to go

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with me, she felt fear and she went with him. 

That is why she went. You don't need to have

a psychologist come in and say, well, a woman

who has had all these experiences is going to

act not as a reasonable person would act under

those situations. She would act based on that

fear that she has ingrown into her because of

her previous experiences. Therefore, she was

there . . . because . . . . [s]he was afraid

for herself and her son and that justifies her

actions. You don't need a psychologist for

that. . . .

. . . .

She was fully articulate on what she

felt, . . . what she thought during . . . . 

She just went there because . . . . [s]he was

afraid for her son. If the jury believes that

then they would have to acquit, I

think . . . . At this time it's a question of

credibility. . . .

. . . .

She has testified as to the duress. If

you believe that all that she says put her in

such a state of mind that she was completely

under duress and acted out of duress, we don't

need an expert . . . .

Federal Rule of Evidence 702 provides that "[a] witness

who is qualified as an expert by knowledge, skill, experience,

training, or education may testify in the form of an opinion or

otherwise if," among other requirements, "the expert's scientific,

technical, or other specialized knowledge will help the trier of

fact to understand the evidence or to determine a fact in issue." 

If a layperson is capable of understanding an issue without the aid

of an expert, a district court may properly decline to admit expert

testimony on that issue on the ground that it would not be helpful

to the jury. See United States v. Salimonu, 182 F.3d 63, 74 (1st

Cir. 1999).

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The proposed expert testimony did not fit this case

snugly. This is not a case in which a battered spouse tries to

explain why she continues to live with the batterer. NavedoRamirez dated Rivera-Ruperto for two months, and then broke off the

relationship. Furthermore, the threats to which Navedo-Ramirez

testified were such that any person, unaided by expert testimony,

could readily appreciate their impact. To be blunt, any person

might well be placed under much duress if her child's life were

threatened by a supposed hit man, or if she were raped while

involuntarily intoxicated. This is not to say that all of the

proposed expert testimony was inadmissible. Instead, it is to say

only that we find no abuse of discretion in the district court's

ruling that the jury would not be aided by expert testimony in

determining whether Navedo-Ramirez acted under duress and whether

she had the requisite mens rea for the crimes charged. The real

issue in this case was whether the jury accepted her testimony as

credible. An expert would not be helpful on that. The

government's contention was not that abuse could not produce

duress, but that she was not credible in attributing her presence

and commission of the crime to duress. The court reasonably

concluded that testimony from an expert on BWS would have been

cumulative of Navedo-Ramirez's own testimony and, thus, unhelpful

to the jury. Cf. United States v. West, 670 F.2d 675, 682 (7th

Cir. 1982) (affirming district court's exclusion of expert

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testimony regarding defendant's limited intelligence, intended to

suggest that defendant did not realize that a gift he had accepted

was a bribe, because defendant's "limited intelligence was clearly

revealed to the jury during [his] testimony" and accordingly "the

jury was able to determine whether [defendant] realized that he was

accepting a bribe without the assistance of expert testimony"),

overruled on other grounds by United States v. Green, 258 F.3d 683,

690-92 (7th Cir. 2001); United States v. Byers, 730 F.2d 568, 570-

71 (9th Cir. 1984) (noting that the district court has "wide

latitude in admitting or excluding psychiatric evidence directed to

the capacity of a defendant to entertain a specific intent or

directed to the credibility of a witness" (citations and internal

quotation marks omitted)).

B. Rivera-Ruperto's Prior Domestic Violence Conviction

Navedo-Ramirez also sought to introduce a prior domestic

violence conviction of Rivera-Ruperto. The district court excluded

it as inadmissible propensity evidence. See Fed. R. Evid.

404(a)(1) ("Evidence of a person's character or character trait is

not admissible to prove that on a particular occasion the person

acted in accordance with the character or trait."). Navedo-Ramirez

contends that this was error, arguing that it was relevant to her

duress defense.

"A duress defense requires proof that the defendant

committed a crime as a result of: '(1) an immediate threat of

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serious bodily injury or death, (2) a well-grounded belief that the

threat will be carried out, and (3) no reasonable opportunity to

escape or otherwise to frustrate the threat.'" González-Pérez, 778

F.3d at 13 (quoting United States v. Arthurs, 73 F.3d 444, 448 (1st

Cir. 1996)). Navedo-Ramirez says that Rivera-Ruperto's domestic

violence conviction supported her contention that she had a "wellgrounded belief" that his threats against her and her son would be

carried out. This argument would have some force, were there any

evidence suggesting that she knew about the conviction. Cf. United

States v. Willis, 38 F.3d 170, 177 n.8 (5th Cir. 1994) (noting that

"the objective situation in which the defendant was allegedly

subjected to duress" is relevant to the defense of duress and that

"evidence concerning the defendant's past history with the person

making the unlawful threat" can help show that the defendant's fear

was well-grounded). But there is no such evidence or even an offer

of proof in the record. Defense counsel admitted as much at oral

argument. Without evidence establishing that Navedo-Ramirez knew

about Rivera-Ruperto's conviction, the district court did not err

in excluding the conviction. See United States v. Garcia, 729 F.3d

1171, 1178-79 (9th Cir. 2013) (noting that prior violent acts by a

purported aggressor could not have affected the defendant's state

of mind if the defendant did not know about the violent acts).

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C. Navedo-Ramirez's PRPD Performance Evaluations 

We likewise find no abuse of discretion as to the

district court's exclusion of Navedo-Ramirez's PRPD performance

evaluations. It is true that Rule 404(a) allows a criminal

defendant to offer evidence of a "pertinent" character trait. See

Fed. R. Evid. 404(a)(2)(A). But the district court permissibly

concluded that the character trait that the evaluations purport to

show -- general competence at her job as a police officer -- is not

"pertinent" to the drug and gun possession crimes of which NavedoRamirez was convicted. See United States v. Washington, 106 F.3d

983, 990, 999 (D.C. Cir. 1997) (affirming district court's refusal

to admit under Rule 404(a) commendations defendant had received

while on the police force, reasoning that defendant's "'dedication,

aggressiveness and assertiveness' in investigating drug dealing and

carjacking [was not] 'pertinent' to . . . his supposed lack of

predisposition to" provide security for drug transactions); cf.

United States v. Nazzaro, 889 F.2d 1158, 1168 (1st Cir. 1989)

(finding that commendations received by defendant in military

service and as a police officer were not pertinent to defendant's

perjury and mail fraud charges).

III.

Finally, we address Navedo-Ramirez's contention that the

district court erred in finding no sentencing factor manipulation

and so erred in sentencing her by failing to grant a downward

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variance. Sentencing factor manipulation occurred, she maintains,

because the government "chose the actors (undercover police

officers to act as seller and buyer), the place, the amount and

kind of drug that w[ould] be sold, the amount of money to be paid

for the security job and the way that the corrupt police officers

were to be recruited." She notes that the amount of drugs chosen

by the government was sufficient to trigger the statutory minimum

sentence of ten years imprisonment, plus a consecutive five-year

sentence for possession of a firearm.

"Sentencing factor manipulation occurs where government

agents have improperly enlarged the scope or scale of [a] crime." 

United States v. Lucena-Rivera, 750 F.3d 43, 55 (1st Cir. 2014)

(alteration in original) (citations and internal quotation marks

omitted). Sting operations are permissible, though they by

definition involve manipulation. Id. Accordingly, "'relief for

sentencing factor manipulation is reserved for only the extreme and

unusual case,'" id. (quoting United States v. Fontes, 415 F.3d

174, 180 (1st Cir. 2005)) (internal quotation marks omitted), such

as a situation "involving 'outrageous or intolerable pressure' [by

the government] or 'illegitimate motive on the part of the

agents,'" United States v. Richardson, 515 F.3d 74, 86-87 n.8 (1st

Cir. 2008) (quoting United States v. Montoya, 62 F.3d 1, 4 (1st

Cir. 1995)). A district court's finding as to whether improper

manipulation took place is "ordinarily a factbound determination"

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that we review for clear error. Lucena-Rivera, 750 F.3d at 55

(quoting United States v. Gibbens, 25 F.3d 28, 30 (1st Cir. 1994)).

The district court did not clearly err in finding that

this was not an "extreme and unusual case." The main focus of a

sentencing factor manipulation claim is impropriety on the part of

the government, United States v. DePierre, 599 F.3d 25, 29 (1st

Cir. 2010), and there is no compelling evidence of impropriety

here, much less the "outrageous or intolerable pressure" required

for a finding of manipulation, Montoya, 62 F.3d at 4.1 In short,

1 Navedo-Ramirez has not explicitly argued that a finding

of "vicarious" or "derivative" sentencing factor manipulation was

required here on a theory that it was Rivera-Ruperto who improperly

pressured her into participating in the drug deal. That argument

would not alter the analysis, because Rivera-Ruperto's conduct is

not attributable to the government for purposes of a sentencing

factor manipulation determination. In the closely related area of

entrapment, we have noted that the conduct of a "middleman" will be

attributable to the government only if 

(1) a government agent specifically targeted

the defendant in order to induce him to commit

illegal conduct; (2) the agent acted through

the middleman after other government attempts

at inducing the defendant had failed; (3) the

government agent requested, encouraged, or

instructed the middleman to employ a specified

inducement, which could be found improper,

against the targeted defendant; (4) the

agent's actions led the middleman to do what

the government sought, even if the government

did not use improper means to influence the

middleman; and (5) as a result of the

middleman's inducement, the targeted defendant

in fact engaged in the illegal conduct.

United States v. Luisi, 482 F.3d 43, 55 (1st Cir. 2007). These

conditions are not satisfied here.

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"[t]he facts in this case do not show anything beyond the level of

manipulation inherent in virtually any sting operation -- and that

is not enough to warrant a downward departure." United States v.

Sánchez-Berríos, 424 F.3d 65, 79 (1st Cir. 2005).2

IV.

For these reasons, we affirm Navedo-Ramirez's conviction

and sentence.

2 Navedo-Ramirez's reply brief argues that her sentence

should be vacated because the district court found sentencing

factor manipulation with respect to a purportedly similarlysituated codefendant, José Nieves-Velez. We note that Nieves-Velez

did not testify and was not a police officer. See United States v.

Nieves-Velez, 28 F. Supp. 3d 131, 134-35 (D.P.R. 2014). The

propriety of the court's finding in Nieves-Velez's case is not

before us, and it has no bearing on the issue of whether the court

clearly erred in finding no sentencing factor manipulation in this

case.

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