United States Court of Appeals

For the First Circuit

No. 11-2347

UNITED STATES OF AMERICA,

Appellee,

v.

ANGEL AYALA-VAZQUEZ,

Defendant, Appellant.

No. 12-1540

UNITED STATES OF AMERICA,

Appellee,

v.

LUIS XADIEL CRUZ-VAZQUEZ,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

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

Before

Thompson, Baldock,*

 and Lipez,

Circuit Judges.

*

 Of the Tenth Circuit, sitting by designation. 
Nathan P. Diamond for appellant Angel Ayala-Vazquez.

Rafael F. Castro Lang for appellant Luis Xadiel Cruz-Vazquez.

Timothy R. Henwood, Assistant United States Attorney, with

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

Thomas F. Klumper, Assistant United States Attorney, were on brief,

for appellee.

May 2, 2014
THOMPSON, Circuit Judge. Blood is often thicker than

water. Brothers Angel Ayala-Vazquez ("Ayala") and Luis Xadiel

Cruz-Vazquez ("Cruz") (collectively, "appellants") appeal their

convictions on multiple criminal charges related to their

involvement in a wide-ranging drug trafficking organization based

out of the Jose Celso Barbosa Public Housing Project ("Barbosa")

and the Sierra Linda Public Housing Project ("Sierra Linda") in

Bayamon, Puerto Rico. Unlike dozens of others who entered guilty

pleas, and some others who testified against them in the hope of

lessening their own punishments, Ayala and Cruz hunkered down and

stood trial together. They were both convicted, and each received

a life sentence.

The two brothers now argue they should be acquitted

because the evidence introduced at trial was not sufficient to

support the jury verdicts. Failing that, they seek a new trial on

the grounds that the trial judge improperly acted as an extra

prosecutor and added to the evidence against them through the way

in which he questioned several witnesses. Should neither of these

claims be resolved in his favor, Cruz additionally contests his

life sentence on the grounds that he was less culpable than his

brother and, therefore, he should not be fated to spend the rest of

his life in prison too.

We have carefully considered the extensive trial record

and the brothers' legal positions. After doing so, we conclude

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there is no merit to any of the arguments advanced by the brothers

on appeal. Accordingly, we affirm their convictions and Cruz's

sentence.

BACKGROUND

We set forth the basic facts in the light most favorable

to the verdict, United States v. Rios-Ortiz, 708 F.3d 310, 312 (1st

Cir. 2013), reserving additional details for our discussion of the

specific issues raised in this appeal. Brothers Ayala and Cruz

were arrested and indicted following a federal investigation into

an extensive and long-lived drug trafficking organization ("DTO")

based out of Barbosa.1 The appellants were indicted together along

with sixty-three other individuals alleged to have taken part in

the DTO. The Indictment identified each defendant by first name,

last name, and, if applicable, nicknames or aliases.2 When it drew

up the Indictment, the government assigned each defendant a number

from one through sixty-five, with Ayala as number one and Cruz

number eight. 

The Indictment charged the appellants and other coconspirators with selling a substantial amount of drugs, including

1

 The Indictment also charged the brothers with illegal drug

distribution at Sierra Linda. However, the testimony at trial--and

the issues raised on appeal--focused on the DTO's activities at

Barbosa. Accordingly, we limit our discussion to the evidence

related to Barbosa only.

2

 The Indictment listed at least one alias for forty-eight of

the sixty-five named defendants. 

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marijuana, cocaine base ("crack"), cocaine, and heroin at various

drug points throughout Barbosa and at other locations. It further

contained several counts of conspiracy to commit money laundering

through various schemes, including one count alleging that the

appellants put up drug money to pay for extravagant annual

Christmas parties for Barbosa's residents. The Indictment also set

forth forfeiture counts seeking a money judgement of $100,000,000,

along with forfeiture of numerous motor vehicles, race cars,

watercraft, and parcels of real estate in Puerto Rico and Florida. 

The other defendants named in the Indictment--with the

exception of a few who could not be located--reached individual

plea agreements with the government, and in the end Ayala and Cruz

were the only two who stood trial. The evidence at trial outlined

in detail each brother's specific role in the DTO. We recount some

of the undisputed highlights.

1. Ayala

As befitting his position as the first listed defendant,

the government set out to prove that Ayala was the kingpin of the

entire DTO. The eleven-count Indictment (ten counts of which were

directed against Ayala) charged Ayala and sixty-four others with a

panoply of drug crimes, including conspiracy with intent to

distribute various controlled substances, conspiracy to import

large quantities of cocaine into Puerto Rico, possession with

intent to distribute controlled substances (heroin, crack, cocaine,

-5-
and marijuana) within one thousand feet of a public housing

facility,3

 and conspiracy to commit money laundering. After a

lengthy trial, the jury convicted Ayala on the first nine counts. 

Ayala does not contest the jury's acceptance of the vast majority

of the facts testified to at trial. Instead, he argues that his

conviction and sentence should be vacated due to a variety of other

legal errors, which we will address in time. For now, we summarize

the essential facts testified to at trial and to which Ayala does

not object on appeal.

Ayala became involved with drug sales at Barbosa more

than two decades ago, when he sold heroin, crack, cocaine, and

marijuana. At first Ayala sold these drugs along with another man

named Steven, but when Steven died in 1995 Ayala took over the DTO

himself and became the "boss" or "leader of the drug point owners"

at Barbosa. Ayala was "always armed for protection, because of

local drug wars." The drug point owners within Barbosa paid rent

to Ayala for the privilege of selling drugs there. Only people who

Ayala knew or who had positions of responsibility within the DTO

were allowed to sell drugs. 

Witnesses testified that drug sales occurred at Barbosa

twenty-four seven. To improve security, Ayala directed that gates

3

 Ayala concedes, and Cruz does not contest, that Barbosa is

a low-income public housing project administered by the United

States Department of Housing and Urban Development.

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be installed between two buildings in Barbosa.4 The gates, which

Ayala paid for, were intended to keep the drug sellers from being

identified or apprehended by the police. Two sellers worked at

each gate, and drugs purchased there were literally handed to

customers through the iron bars. This physical barrier helped

shield the sellers from any attempted arrest. Sellers also wore

shirts over their faces to conceal their identities from the

police.

Also on the security front, Ayala employed lookouts to

provide a further level of protection. Lookouts were equipped with

radios and were responsible for notifying higher-ups when police

officers entered Barbosa or if they noticed anyone suspicious. One

witness testified she earned $75 for each shift she worked as a

lookout. 

The size and scale of the DTO's Barbosa operations can be

appreciated from testimony regarding just a few of the drug sales

there. According to one of the coconspirators, Jose Arce Baez

(number 37 on the Indictment), drugs were available twenty-four

hours a day. Baez recalled that on one day in March 2001, 240

grams of crack, 600 baggies of heroin, 10 to 15 packets of

marijuana and 250 to 375 baggies of cocaine were sold. A DEA

informant, Burke Declet, said he purchased 3 vials of crack, 1 bag

4

 Nothing appears in the record as to how or why the Housing

Authority would permit such a construction.

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of marijuana, and 10 packets of heroin in April of 2008. Police

officers also described a February 2009 raid at Barbosa that ended

in a search of an apartment where the police discovered and seized

a radio used by the drug lookouts, along with 1,000 "decks" of

heroin and 400 "decks" of marijuana.5 Chemical analysis determined

these materials contained 146 grams of heroin and 428 grams of

marijuana. A further search on March 27, 2009, resulted in the

seizure of 51 grams of heroin and 300 grams of marijuana. 

Subsequent police searches led to the seizure of 285 grams of

marijuana and 122 grams of heroin on April 7, 2009, 159 grams of

cocaine on April 8, 2009, and 177 grams of crack on May 7, 2009.

 Trial testimony further indicated that Ayala's

involvement in the drug trade was not confined to sales in Puerto

Rico. Indeed, one drug trafficker testified that, between 2005 and

2008, he imported "thousands of kilos of cocaine and a small

portion of heroin" from the Dominican Republic for Ayala. Ayala

and two other conspirators, he said, went on to ship at least some

of those drugs to sellers in New York and other mainland

destinations. One example of the scope of drug imports into Puerto

Rico is a March 30, 2009, seizure by Puerto Rican police of a

flatbed truck that had come in from the Dominican Republic. When

they searched the truck, law enforcement agents discovered 182

5

 A "deck," it was clear from the trial testimony, is an

individual package of drugs. For example, a "deck" and a "baggie"

of heroin are interchangeable terms. 

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kilos of cocaine and 12 kilos of heroin. There was also testimony

that in 2008, law enforcement agents seized two vessels arriving

from the Dominican Republic that contained drugs destined for

Ayala's DTO. Police discovered 600 kilos of cocaine and 7 kilos of

heroin on the first ship, and 397 kilos of cocaine on the second. 

With respect to shipments to the mainland, one drug

seller testified that between February and November of 2007, he

received in New York as many as 100 kilograms per week from the

DTO. Another trafficker testified that between 2000 and 2006 the

DTO used commercial airlines to bring "kilos" of cocaine from

Puerto Rico to New York and Florida. The amount of drugs brought

in varied, but was between 120 and 300 kilos per trip. Trips were

made two or three times each week, and the witness testified that

in one month "about 5,000 kilos had been sent" to the mainland.

2. Cruz

The Indictment identified Cruz's role in the DTO as that

of an "administrator" who "would, among other duties, supervise the

day-to-day operations of the various narcotics distribution points

within Barbosa, Sierra Linda and other locations within Puerto

Rico." Cruz was charged with one count of conspiracy to possess

with intent to distribute controlled substances, along with

separate counts for possession with intent to distribute heroin,

crack, cocaine, and marijuana. He also stood trial for his alleged

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participation in a money laundering conspiracy. The jury returned

a guilty verdict on each crime charged against him.

Like his brother, Cruz does not contest the substance of

the testimony against him, focusing instead upon the inferences to

be drawn from the evidence and the purported unfairness of his life

sentence.6 While Cruz concedes that he was in fact involved in the

DTO and that he was an "administrator" at Barbosa and Sierra Linda,

he maintains that his participation was "limited" to those two

locales and characterizes his role as nothing more than a "thirdtier administrator."

The testimony at trial indicated that Cruz was much more

than a minor player in the DTO. One witness testified Cruz was in

charge of daily operations at Barbosa whenever Ayala or the number

two man, Omar Median Santiago, was not around. In this capacity,

Cruz was responsible for ensuring the various drug points in

Barbosa actually had drugs on-hand to be sold there.

As an administrator of the DTO, Cruz gave orders to

others and made sure that people did not congregate in the middle

of Barbosa. It was important to keep large groups from forming

because this would attract attention from law enforcement agents

who periodically came into Barbosa. In addition, testimony showed

6 Throughout his brief, Cruz refers to certain witnesses as

long-time drug addicts or as individuals testifying in the hopes of

receiving lighter sentences in their own cases. Cruz, however,

does not argue that we should disregard any of this testimony.

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that Cruz worked as a runner delivering drugs to the sellers,

assigned "shifts" to the sellers, informed drug sellers of

locations in which the police had set up surveillance cameras, and

explained to the sellers why they should cover up their faces.

Testimony further indicated that Cruz acted as an

enforcer when necessary. In one instance, Jose Arce Baez (who

testified against Ayala as well) explained that he worked as a

seller and Cruz imposed discipline on individuals involved with the

DTO at Barbosa. Baez recounted one incident where he himself was

subjected to discipline as a result of having stolen "storm drains"

from an apartment because he thought they were made of aluminum. 

When Cruz found out about this, Cruz took Baez aside into a

stairwell and told him that he could either take a "slap in the

face" as punishment or, failing that, Cruz could let Ayala know

what he had done. Baez opted for a Cruz-administered slap. Baez

also testified that he observed Cruz personally selling drugs from

time to time.

Having adequately framed the backdrop, we now take up the

appellants' specific arguments.

DISCUSSION

The appellants raise various grounds on appeal in their

attempt to reverse their convictions or, at the very least, obtain

a new trial. In seeking to reverse their convictions, the

appellants challenge the sufficiency of the evidence with respect

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to certain counts of conviction. Failing that, they each claim

entitlement to a new trial because the trial judge violated their

right to a fair trial by acting as a prosecutor in his questioning

of various witnesses. They say that the district judge, under the

guise of questioning certain witnesses, abused his discretion by

making comments that added to the evidence against them. Finally,

Cruz solely argues that even if he is not entitled to an acquittal

or a new trial, his life sentence should be vacated as procedurally

and substantively unreasonable. 

Unsurprisingly, the government disagrees. In its view

the convictions should stand because the evidence at trial--

including witness testimony, videotape, and seized drugs--more than

suffices to allow a reasonable jury to return guilty verdicts. The

government then urges us not to grant new trials because the trial

judge did not exceed his authority in questioning witnesses and

commenting on the evidence. As a fallback, the government argues

that even if the trial judge erred in his trial participation, the

appellants still are not entitled to a new trial because any such

error was harmless. And with respect to Cruz's life sentence, the

government states that it is procedurally and substantively

reasonable in light of the evidence adduced at trial, and asks us

to affirm it. 

We address the arguments of each appellant in turn,

beginning with their sufficiency of the evidence arguments.

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I. AYALA'S CHALLENGE TO THE SUFFICIENCY OF THE EVIDENCE

Ayala challenges the sufficiency of the evidence with

respect to three aspects of his convictions for drug possession and

money laundering. First, he argues the government did not

introduce sufficient evidence to allow the jury to find him guilty

of possessing with intent to distribute illegal drugs within 1,000

feet of a public housing facility in violation of 21 U.S.C. § 860. 

Next, he challenges the sufficiency of the evidence to support the

jury's drug quantity findings. Finally, he contends that the jury

did not have enough evidence to find that he was involved in any of

the financial transactions alleged in Counts VII through IX.

Although Ayala argues that his sufficiency of the

evidence challenges present questions of law--which engender de

novo review--our review of the record shows Ayala did not muster a

sufficiency challenge as to any of the evidence admitted at trial. 

Accordingly, this issue has not been preserved for appellate

review. We, of course, "review an unpreserved challenge to

sufficiency of the evidence only for plain error." United States

v. Pratt, 568 F.3d 11, 15 (1st Cir. 2009). When employing plain

error review, we will affirm the conviction unless doing so "would

result in a 'clear and gross injustice.'" Id. (quoting United

States v. Bello-Perez, 977 F.3d 664, 668 (1st Cir. 1992)). We

address each of these issues separately.

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a. Possession With Intent to Distribute (Counts III - VI)

Ayala's first sufficiency challenge is to his convictions

on Counts III through VI, which alleged violation of 21 U.S.C. §

860 for possessing with intent to distribute illegal drugs within

1,000 feet of a public housing facility.7 Delineating the contours

of his challenge, Ayala admits the evidence allowed a jury to find

that he possessed illegal drugs with intent to distribute them in

Puerto Rico. He further concedes that there was enough evidence

for the jury to make the following findings: (1) Ayala supplied

drugs to sellers who were selling inside Barbosa; (2) the sellers

in turn sold those drugs inside Barbosa; (3) the sellers kept those

drugs in apartments and in vehicles; and (4) Ayala charged rent to

the sellers. He argues, however, that once he turned the illegal

drugs over to the sellers, he no longer had actual or constructive

possession over the drugs that were ultimately sold at Barbosa. 

Expressed differently, Ayala's position is that once he placed the

drugs into the stream of (illicit) commerce, they were no longer

his drugs and, therefore, he is not responsible for their further

downstream distribution to the end users. Thus, he urges us to

overturn his convictions on the grounds that the evidence did not

7

 The jury specifically found that the offenses charged in

Counts III through VI occurred within 1,000 feet of a public

housing facility. 

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prove he possessed with intent to distribute illegal drugs within

Barbosa.8

In rebuttal, the government argues the evidence at trial

showed Ayala controlled the DTO and, therefore, actually or

constructively possessed the illegal drugs distributed at Barbosa

even after they had left his physical custody. In support of this

theory, the government cites testimony from cooperating witnesses

to the effect that Ayala rose through the ranks of the drug

organization until he finally became the leader and took control of

the entire DTO from 1997 onwards. The government then goes on to

argue that the evidence showed Ayala controlled the specific manner

of distribution within Barbosa itself.9

 21 U.S.C. § 860 makes it illegal for an individual to

"distribut[e], possess[] with intent to distribute, or

manufactur[e] a controlled substance in or on, or within one

thousand feet of, the real property comprising a . . . housing

facility owned by a public housing authority." 21 U.S.C. § 860(a). 

8

 As a corollary, Ayala argues that proof of possession within

a public housing facility is a necessary element of the crimes

charged against him. Accordingly, he asserts that his convictions

can not be sustained on the basis of evidence that he possessed

with intent to distribute illegal drugs in Puerto Rico generally. 

The government does not contest this aspect of Ayala's appeal.

9 The government also argues the evidence showed, at the

absolute minimum, that Ayala was guilty of aiding and abetting the

distribution of drugs within Barbosa. Because we conclude Ayala

was properly convicted as a principal, we have no need to address

a theory of accomplice liability.

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Here, Ayala does not contest that the drugs are "controlled

substances" or that Barbosa constitutes a "housing facility owned

by a public housing authority." Instead, Ayala's argument is

centered on his contention that once the drugs left his physical

custody, he no longer possessed them or controlled the particulars

of their ultimate distribution and, therefore, is not guilty of

possession with intent to distribute at Barbosa in violation of 21

U.S.C. § 860.

"In order to prove possession with intent to distribute,

the government must show that the defendants knowingly and

intentionally possessed, either actually or constructively, a

controlled substance with the specific intent to distribute." 

United States v. Garcia-Carrasquillo, 483 F.3d 124, 130 (1st Cir.

2007). To establish constructive possession, the government must

show the defendant "knowingly ha[d] the power and intention at a

given time to exercise dominion and control over an object either

directly or through others." Id. Possession may be solely by one

defendant or jointly with others, which "occurs when both the

defendant and another person share power and intent to exercise

dominion and control over contraband." United States v. Howard,

687 F.3d 13, 18 (1st Cir. 2012) (internal quotation marks omitted). 

Having carefully reviewed the record, we conclude that the evidence

at trial proved Ayala, through his control of the DTO, retained

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constructive possession of the illegal drugs even after they had

been distributed to the suppliers. 

Ayala does not contest that he distributed drugs to

sellers who ultimately sold those drugs at Barbosa. Indeed, the

evidence at trial proved Ayala controlled all of the DTO's

operations there. For instance, the testimony showed Ayala was

responsible for having gates installed in Buildings 14 and 15 to

protect sellers from arrest, and that he controlled the operation

of these gates. There was also evidence that Ayala consolidated

multiple drug points within Barbosa itself, directed sellers to

distribute specific drugs out of specific buildings, and received

proceeds from the drug sales at Barbosa. And, as we discuss later,

there was evidence that Ayala instituted a regime in which he

required runners and sellers to "work for free" on certain days

each month and "donate" the money they would have made to finance

annual, elaborate Christmas parties attended by members of the DTO

and the residents of Barbosa.

From this evidence, a reasonable jury could conclude that

Ayala was intricately involved with--and indeed, controlled--the

entire DTO and all of its operations at Barbosa. Moreover, the

evidence showed Ayala dictated where sellers could sell certain

drugs at Barbosa, that he consolidated drug points there, and that

he caused the runners and sellers to contribute portions of their

earnings to pay for the Christmas parties put on by the DTO each

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year at Barbosa. The jury was warranted in concluding that Ayala

exercised dominion and control over the drugs even after they left

his physical possession, through his control over his underlings in

the DTO. Accordingly, the evidence at trial proved Ayala

constructively possessed with intent to distribute illegal drugs at

Barbosa in violation of 21 U.S.C. § 860. Garcia-Carrasquillo, 483

F.3d at 130.10 Ayala's challenge to the sufficiency of the evidence

with respect to his conviction on Counts III through VI is without

merit.

b. Drug Quantity (Counts III - VI)

Moving on, Ayala next challenges the jury's drug quantity

findings with respect to his conviction on Counts III through VI. 

Ayala first recognizes the jury found as a fact that he possessed

1 kilogram or more of heroin, 288 grams or more of crack, 5 or more

kilograms of cocaine, and 1,000 or more kilograms of marijuana, all

inside Barbosa. He contends, however, that the only evidence as to

drug weight at trial came from the amount of drugs the government

actually seized at Barbosa. These amounts--173 grams of heroin,

377 grams of crack, 159 grams of cocaine and 1.2 kilograms of

marijuana--Ayala points out, "fell far short of the charged amounts

10 The Indictment, of course, also charged Ayala with violating

21 U.S.C. § 860 as an aider and abettor. On that theory of

criminal liability, "[t]he vital element to be proven is that the

aider and abettor shared in the principal's essential criminal

intent." See United States v. Campa, 679 F.2d 1006, 1010 (1st Cir.

1982). The evidence at trial, however, proved that Ayala was

guilty as a principal.

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that the jury found." He then concludes, without citing any

authority, that the jury's ultimate finding with respect to drug

quantity was based on nothing more than "speculation and guess

work."

Not surprisingly, the government disagrees completely. 

It points out that in addition to the amount of drugs seized,

witnesses at trial testified to the size and scope of the DTO and

its drug sales. This evidence included testimony that the drug

point operated twenty-four seven until 2009. The government also

refers to testimony from cooperating witnesses regarding the

amounts of each type of drug sold on a typical day. For example,

the government refers us to the witness testimony that heroin was

sold in packages weighing a minimum of .22 grams per bag and that

at least 500 such bags were sold each day; that 120 or more grams

of crack were sold daily; that 250 to 500 baggies of cocaine were

sold on a daily basis, with an average weight of .24 grams per

baggie based on the seizure of 672 baggies; and that at least 100

packets of marijuana averaging 1.5 grams each were sold every day. 

By extrapolating these amounts over the life of the conspiracy, the

government argues, the jury's drug quantity findings were amply

supported by the evidence.

Simply put, Ayala's belief that the jury was prohibited

from making a drug quantity determination that exceeded the amount

of drugs actually seized is mistaken. When determining drug

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quantity, a jury may utilize and rely on witness testimony to

mathematically calculate drug quantities (based on, e.g., testimony

as to the duration of possession and distribution multiplied by the

amount distributed on a given day). United States v. Aviles-Colon,

536 F.3d 1, 26 (1st Cir. 2008). Obviously in this case, the jury

made a drug quantity finding significantly exceeding the amount of

drugs actually seized by the government at Barbosa. We are

satisfied, however, that the trial testimony regarding the scope of

daily drug transactions in Barbosa supported the jury's ultimate

findings. Moreover, this was based not only on witness testimony,

but also the average weight of individual packages seized by the

government. In addition, although no witness testified as to the

weight of marijuana bags sold as part of the conspiracy, the jury

had sufficient evidence to infer their weight based upon the

evidence of (1) an undercover purchase of a bag weighing 2.2 grams,

and (2) the 1.5 gram average weight of the 953 bags actually

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seized.11 Accordingly, the jury's findings with respect to drug

quantity were supported by the evidence introduced at trial. 

c. Money Laundering Conspiracy (Counts VII - IX)

Finally, Ayala argues that his conviction on Counts VII

through IX should be overturned because there was no evidence at 

trial as to his personal involvement with any of the financial

transactions alleged in those Counts. His position is that,

although the government's evidence "established each of the three

crimes of money laundering conspiracy, themselves," the government

nevertheless failed to establish one essential element of the crime

as it relates to him. Relying on United States v. Gotti, 459 F.3d

296, 335 (2d Cir. 2006), Ayala argues the government was required

to show that he, as the principal, personally initiated, concluded,

or participated in each transaction. The government's response is,

essentially, that the evidence at trial allowed the jury to

conclude that Ayala was the boss or leader of the entire DTO, that

Ayala imposed a structure on the drug sellers to collect money

11 We note that there was only a single undercover purchase of

marijuana which, standing alone, would not have constituted

sufficient evidence to allow the jury to make a determination as to

marijuana quantity. See United States v. Rivera-Maldonado, 194

F.3d 224, 232 (1st Cir. 1999). It does, though, serve as a

"sample" for the jury's consideration with respect to the average

weight of the 953 bags that had been seized. And, in any event,

the evidence showed that those 953 bags had an average weight of

1.5 grams each. Combining this average weight with witness

testimony that there were daily sales of between 10 and 15 packets

of marijuana--each containing 25 smaller bags of marijuana--

provides more than enough support for the drug quantity found by

the jury.

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throughout the year to finance the annual Christmas parties, that

Ayala directed the purchase of race cars and other luxury vehicles

(so-called "daily-drivers") through "straw buyers" who owned those

vehicles in name only, and that drug money was used to pay for all

of Ayala's vehicles, both the race cars and daily-drivers.12

Ayala's challenge to the sufficiency of the evidence on

these Counts is without merit. By basing his argument on the lack

of evidence of his direct involvement in the alleged financial

transactions, Ayala overlooks that each money laundering count

charged him as a participant in a money laundering conspiracy in

violation of 18 U.S.C. § 1956(h). That statute makes it a crime

for anyone to knowingly engage in certain financial transactions

involving the proceeds of unlawful activity. See 18 U.S.C. §

1956(a). The specific section Ayala was charged under, Section

1956(h), declares that "[a]ny person who conspires to commit any

offense defined in this section . . . shall be subject to the same

penalties as those prescribed for the offense the commission of

which was the object of the conspiracy." 18 U.S.C. § 1956(h). 

Thus, to secure a conviction the government needed to prove not

that Ayala himself carried out each transaction, but that he was

part of a conspiracy the object of which was to engage in money

laundering.

12 Ayala's daily-drivers included luxury vehicles manufactured

by Acura, BMW, Mercedes, and Lamborghini.

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The crime of money laundering comes in two varieties,

"promotional" and "concealment." United States v. Cedeño-Perez,

579 F.3d 54, 57 (1st Cir. 2009). An individual is guilty of

promotional money laundering if "(1) 'knowing that the property

involved in a financial transaction represents the proceeds of some

form of unlawful activity,' he (2) 'conducts or attempts to conduct

such a financial transaction which in fact involves the proceeds of

specified unlawful activity,' (3) 'with the intent to promote the

carrying on of specified unlawful activity.'" Id. (quoting 18

U.S.C. § 1956(a)(1)(A)(i)). The second variety, concealment,

differs only with respect to the third element. To convict an

individual of concealment money laundering, the government must

prove the first two elements of promotional money laundering and,

third, that "the person conducts the financial transaction 'knowing

that the transaction is designed in whole or in part . . . to

conceal or disguise the nature, the location, the source, the

ownership, or the control of the proceeds of specified unlawful

activity.'" Id. (quoting 18 U.S.C. § 1956(a)(1)(B)(i)).13 

To convict Ayala of conspiracy to commit money

laundering, the government was required to introduce evidence

showing that Ayala had entered into an agreement with one or more

co-conspirators to commit either promotional or concealment money

13 Ayala does not contend on appeal that the transactions

alleged in the Indictment are not "financial transactions" or that

the DTO did not engage in "specified unlawful activity" within the

meaning of 18 U.S.C. § 1956.

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laundering. See United States v. Misla-Aldarondo, 478 F.3d 52, 68

(1st Cir. 2007). An agreement to enter into a conspiracy may be

tacit or express. United States v. Josleyn, 99 F.3d 1182, 1190

(1st Cir. 1996). A conspiracy conviction requires proof that "the

defendant voluntarily participated to promote a criminal

objective." Id. We have also held that "[a] particular defendant

need not have been familiar with all the details of the conspiracy

or with the identities of all other conspirators" in order to be

guilty of the conspiracy offense. Id. 

Count VII alleged that Ayala was part of a money

laundering conspiracy that "utilized narcotics proceeds in order to

organize, host and finance annual Christmas parties at . . .

Barbosa" from 2004 through 2008. The government introduced

evidence at trial showing not only that Ayala was the unquestioned

"boss" of Barbosa, but that he himself put in place a procedure to

fund the Christmas parties by requiring sellers to contribute drug

proceeds throughout the year. There was also testimony showing

that Ayala personally "hosted" the parties, and that he went up on

stage with the performers hired through use of drug proceeds. 

Moreover, the evidence showed that technicians working to

put on the Christmas parties received their payment from one of

Ayala's henchmen. See United States v. Martinez-Medina, 279 F.3d

105, 116 (1st Cir. 2002) ("Purchasing large items with drug money

through third parties surely supports an inference of intent to

conceal."). When Ayala's men paid the technicians, the payment was

-24-
generally placed in plastic or paper bags. See Cedeno-Perez, 579

F.3d at 61 (finding that such packaging demonstrates an intent to

conceal). Also relevant is the form of payment itself: usually,

the technicians were paid in small bills. See United States v.

Hall, 434 F.3d 42, 52 (1st Cir. 2006) (citing United States v.

Misher, 99 F.3d 664, 668-69 (5th Cir. 1996) (recognizing that using

small bills "made it more difficult for anyone to trace the . . .

payment" and allows the jury to conclude that a purpose of the

transaction is to conceal the source of the funds)). 

Under these circumstances, the jury had enough evidence

to conclude, at a bare minimum, that Ayala knowingly participated

in a conspiracy to conduct financial transactions using drug money

with the intent either to promote the DTO's continued success (by

maintaining good relations with Barbosa's residents) or to conceal

the nature and source of the proceeds used to fund those parties. 

More than that though, because there was evidence that Ayala

established procedures to fund these parties, the jury would also

have been warranted in convicting him on a theory of his direct

participation in money laundering. Accordingly, we affirm his

conviction on Count VII.

Count VIII and Count IX both alleged Ayala participated

in a conspiracy to commit money laundering through the acquisition

of various vehicles. Count VIII rested on the purchase of a race

car, trailer, and truck, while Count IX was predicated upon the

purchase of various luxury cars that Ayala used as daily-drivers. 

-25-
Once again, ample evidence at trial supported his convictions on

both counts. 

Beginning with the race vehicles, testimony at trial

indicated that Ayala had been involved in the purchases of a

$144,000 race car named Major League, a $45,000 trailer, and a

$70,000 truck to haul the race car and trailer. There was also

evidence that the truck and the trailer were registered to Humberto

Cruz-Ortiz, a drug seller in Ayala's DTO. Although the vehicles

may have been registered to someone else, witnesses testified at

trial that Ayala owned two race cars, Major League and La Adriana,

that he used the truck and trailer to transport his race cars, and

that they had actually seen Ayala racing Major League. This

eyewitness testimony was supported by documents Ayala signed in

2006 before racing Major League stating that he was responsible for

the race car. Based on this evidence, the jury could have

reasonably concluded Ayala used a "straw purchaser" to buy and

register these vehicles in order to conceal the fact that they were

bought and paid for with drug money.

The government also introduced sufficient evidence to

secure a money laundering conviction with respect to Ayala's dailydrivers. One witness testified that Ayala acquired these vehicles

without anyone knowing they were his by having someone else fill

out the paperwork for the purchase and subsequent registration. 

Ayala, though not the registered owner, made the monthly payments

on these vehicles, and the "straw purchaser" received payment for

-26-
his participation in filling out the paperwork. There was also

testimony that many of the payments for Ayala's luxury vehicles

were made in cash that "came from drug trafficking." Ayala himself

stipulated that 29 out of 30 payments for a $68,000 Acura MDX were

in the form of cash. He further stipulated that an FBI agent

observed him driving that vehicle in May of 2009. Accordingly,

just as there was evidence showing that Ayala had created a system

for laundering money through annual Christmas parties, there was

evidence that he masterminded a similar scheme for the purchase of

his daily-drivers. As such, we affirm the jury's verdict with

respect to Count IX.

II. CRUZ'S CHALLENGE TO THE SUFFICIENCY OF THE EVIDENCE

Like Ayala, Cruz argues that insufficient evidence was

introduced at trial to allow the jury to return a guilty verdict

with respect to Count VII. Recall that Count VII alleged he (like

his brother) was guilty of entering into a conspiracy to launder

money by putting on annual Christmas parties at Barbosa. Cruz,

however, does not raise a sufficiency of the evidence challenge to

any of the other counts of which he was convicted.

The record here shows that at the close of the evidence,

Cruz moved for a judgment of acquittal pursuant to Rule 29 with

respect to Count VII. In making his motion, Cruz argued that he

was entitled to an acquittal based on the lack of evidence that

Cruz conducted any financial transactions related to or was

-27-
involved in the financing of any of the annual Christmas parties. 

The trial judge, however, denied the motion based on evidence that

Cruz "was the administrator of the drug points there while his

brother or Mr. Omar was not present," that Cruz gave orders to

others involved in the conspiracy, and that he was responsible for

things such as making sure there were drugs at the various drug

points and keeping addicts from milling around the drug points.

Because Cruz, unlike his brother, did challenge the

sufficiency of the evidence at trial, this issue has been preserved

for appellate review. Preserved challenges "to the sufficiency of

the record evidence are reviewed de novo." United States v. Ossai,

485 F.3d 25, 30 (1st Cir. 2007). Under this standard, we affirm

the jury's verdict "unless the evidence is insufficient to permit

the jury rationally to find, beyond a reasonable doubt, each

essential element of the charged offense." Id. We have already

set forth the elements of conspiracy to commit money laundering in

our discussion of Ayala's challenges to his convictions, and we

will not repeat ourselves here.

Cruz's argument on appeal with respect to Count VII

varies little from what he presented at trial. Notably, he admits

here that the trial evidence showed he "was a member of the

conspiracy to possess and distribute drugs at the Barbosa-Sierra

Linda Housing Projects charged in count one." He goes on to

assert, however, that there was no evidence "linking him to the

conspiracy to launder those specific funds" used towards putting on

-28-
the Christmas parties. Cruz then argues, without citation to

authority, that his membership in the drug conspiracy "did not have

the effect of converting him into a co-conspirator of the money

laundering conspiracy," and that any "potential inference that he

may have known that the Barbosa Christmas parties were being paid

with drug profits of [Ayala] was insufficient to establish he

intended to be a participant or member of the money laundering

conspiracy." In sum, he claims that a conviction requires proof of

his intent to specifically join in the money laundering conspiracy. 

The government argues the evidence showed Cruz was

personally involved in activities that produced the proceeds used

to fund the parties. According to the government, the evidence at

trial showed that Cruz began working for his brother's DTO no later

than 2003, and that he took on multiple roles, including those of

administrator, runner, and occasional drug seller. According to

the government, Cruz's position within the conspiracy--including

his oversight of the drug point's daily operations--

"circumstantially showed Cruz's participation in the money

laundering conspiracy." 

After careful consideration of the evidence adduced at

trial, we conclude the evidence sufficed to allow the jury to

conclude, beyond a reasonable doubt, that Cruz was a member of the

money laundering conspiracy. First, we note Cruz concedes that he

was a member of the overall drug conspiracy. Further, the evidence

at trial allowed the jury to conclude not only that Cruz was a part

-29-
of the conspiracy, but that he had taken on a managerial role and

was deeply involved in the DTO. Based on his deep and long-term

involvement with the conspiracy, the jury was permitted to infer

that Cruz had knowledge that drug money was being used to finance

the yearly high-profile Christmas parties14 with the intent of

concealing the drug proceeds and/or promoting the object of the

overall conspiracy. See United States v. Martinez-Medina, 279 F.3d

105, 116 (1st Cir. 2002) (finding that the jury was permitted to

find beyond a reasonable doubt that a defendant who had "deep

involvement" in a drug conspiracy knew that certain air

conditioners were being purchased to conceal drug money).

Even if this were not enough, the jury also had evidence

showing that Cruz was much more directly involved in helping to

fund the Christmas parties than he lets on. As the overall leader

14 The testimony of Jose Miguel Marrero Martel, an admitted

member and leader of another drug-trafficking organization that

imported drugs into Puerto Rico and sold them to Ayala's DTO (among

others), is helpful to get an idea of the size of these parties. 

Martel testified the 2006 party had a designated parking area,

private security guards, and a VIP section with campers, a tent,

chairs, tables, and free food and drinks for the DTO's "drug

traffickers." The VIPs were able to see the stage from the side so

they "did not have to be up front where everybody was." It was

from this area that Ayala himself watched the goings-on, at least

when he was not dancing on stage. 

The Christmas parties featured well-known performers,

including Daddy Yankee, Wisin and Yandel, and Alexis and Fido who

all appeared in 2007. The following year, Elvis Crespo was paid

$12,000 for his performance there. According to Crespo's promoter,

all $12,000 was paid in twenty-dollar bills contained in a small

paper bag. As of the date of publication, a video clip purporting

to depict a portion of Elvis Crespo's Barbosa performance is

available at http://www.youtube.com/watch?v=3NX0g1h7LHc. 

-30-
of the DTO, Ayala had set up a system for collecting funds

throughout the year by having members of the organization--

including drug point owners, runners, and sellers--work for "free"

at certain times. The money the sellers earned on these days was

then picked up from Barbosa and set aside to pay for the annual

party. The testimony at trial showed that Cruz was intimately

involved with the drug trade, as he worked in various capacities

over the years, including as a runner and seller. In fact, the

evidence supported a finding that he was in charge of the day-today operations of the Barbosa drug points. 

From this evidence, the jury could have concluded, beyond

a reasonable doubt, that Cruz directly participated in the money

laundering scheme by either contributing money to it directly

during the times he worked as a runner or seller, and/or by

overseeing the collection of funds from other members as part of

his control of daily operations at Barbosa or as a fill-in boss

during Ayala's absences. The jury could also have concluded,

beyond a reasonable doubt, that Cruz knew the Christmas parties

were paid for out of drug money and that their intent was to

conceal the source, ownership, and control of those proceeds, as

well as to promote the interests of the drug organization as a

whole. Accordingly, we affirm Cruz's conviction on Count VII.

-31-
III. COMMENTS MADE BY THE DISTRICT JUDGE

a. Cruz's Adoption of Ayala's arguments

Before getting to the substance of the appellants'

objections to the trial judge's participation at trial, we must

first turn our attention to a preliminary matter. Only Ayala fully

sets forth an argument that the trial judge's comments deprived him

of a fair trial. Cruz seeks to adopt Ayala's position as his own

because the claimed errors are "of equal application to [Cruz] and

warrant[] the granting of a new trial due to the district court

openly assisting the government during trial." The government,

however, posits that Cruz has not successfully adopted Ayala's

argument since he has not made any showing of how it is applicable

or pertains to him. According to the government, we should

conclude that Cruz has waived this ground of appeal.15

It is true that, typically, "issues adverted to in a

perfunctory manner, unaccompanied by some effort at developed

argumentation, are deemed waived." United States v. Zannino, 895

F.2d 1, 17 (1st Cir. 1990). However, "in a case involving more

than one appellant or appellee, including consolidated cases, any

number of appellants or appellees may join in a brief, and any

party may adopt by reference a part of another's brief." Fed. R.

App. P. 28(i). In order for one party to successfully adopt

15 Cruz did not opt to file a reply brief or address this

argument at oral argument.

-32-
another's argument by reference, "the arguments adopted must be

readily transferable from the proponent's case to the adopter's

case." United States v. David, 940 F.2d 722, 737 (1st Cir. 1991).

Here, Cruz and Ayala were tried together, and the

government attempted to prove both of them guilty of crimes arising

out of the same alleged drug conspiracy. Ayala claims he is

entitled to a new trial because the district judge, through his

comments and questioning of witnesses (at least one of whom

testified against both appellants), took on the role of an

additional prosecutor and added to the evidence against him. His

argument goes to the fairness of the trial itself, as he believes

the judge's actions tainted the entire proceeding. Given the

nature of this particular claim, Ayala's same fair trial arguments

are readily transferable to Cruz's case, without the need for

further explanation or development. Moreover, because Cruz stood

trial along with his brother, if Ayala were to show that the judge

deprived him of a fair trial, it would arguably follow that his

comments and questions deprived Cruz of a fair trial as well. 

Accordingly, the interests of justice cut in favor of our finding

that Cruz has adopted Ayala's fair trial arguments. See United

States v. Castro-Davis, 612 F.3d 53, 69 n.16 (1st Cir. 2010)

(considering the "interests of justice" when determining whether

one party adopted another's argument by reference). While Cruz's

perfunctory statement may not suffice in every case to adopt

another party's arguments, we do not hesitate to conclude that it

-33-
was up to the task here in light of the obvious applicability of

Ayala's arguments to Cruz's appeal.

b. Setting the Stage and Framing the Issues on Appeal

We move on to the substantive aspects of the fair trial

arguments. The appellants claim the trial judge deprived them of

their right to a fair trial guaranteed by the Fifth Amendment

through certain comments he made during trial. Their objection

centers around the trial judge letting the jury know that certain

individuals referred to in trial testimony had been named in the

Indictment, even though neither the witness nor prosecutor tied

that individual by name to the Indictment. The appellants point to

twenty-three separate comments made by the trial judge during four

days of trial from March 29 through April 4. Although they set out

citations to the record as to each of these twenty-three occasions,

the appellants do not make any individualized argument with respect

to any specific comment.16

16 In his brief, Ayala makes a cursory allegation that the

trial judge "also countered defense counsel's questions in a manner

favorable to the prosecution." 

Not only is this sort of bald-faced assertion insufficient to

raise the issue on appeal, "[a]s a general rule, a judge's midtrial remarks critical of counsel are insufficient to sustain a

claim of judicial bias or partiality against the client." Logue v.

Dore, 103 F.3d 1040, 1046 (1st Cir. 1997). Further, our review of

the extensive transcripts reveals that the judge corrected the

prosecutor on multiple occasions as well. Indeed, one of the

appellant's twenty-three citations to the record actually refers to

an occasion on which the trial judge corrected the prosecutor, not

defense counsel. The only other of the twenty-three cited

occasions that could even plausibly be considered a "counter" to

defense counsel's questions is an admonishment not to continue a

line of questioning relating to the government's attempt to obtain

-34-
In rejoinder, the government argues that the trial judge

acted at all times in accordance with his power to question

witnesses and comment on the testimony. Most of those occasions,

says the government, are in reality simply examples of the trial

judge stepping in to clarify confusing testimony or to correct

misstatements by both the prosecutor and defense counsel. The

government goes on to urge us to find harmless any error, noting

that the trial judge provided appropriate curative instructions and

that, in its view, the evidence against both appellants was

overwhelming anyways. Accordingly, the government believes the

judge's conduct does not merit reversal.

We have reviewed each of the twenty-three cited sections

of trial testimony. Four of them have nothing whatsoever to do

with the appellants' arguments: on one occasion, the judge

instructed defense counsel not to inquire further into topics

related only to forfeiture of assets, and then a short time later

corrected a misstatement made by the prosecutor. On a different

date, the judge asked a witness about the source of certain monthly

payments she had been receiving. Finally, and on yet another date,

forfeiture of approximately $100,000 the witness had on hand when

he was arrested. The record reveals that far from favoring the

prosecution, the trial judge informed defense counsel that the

forfeiture proceedings had not been completed, and cut off any

further questioning in this regard. We are at a loss to imagine

how this brief exchange could have prejudiced the appellants. We

have now given more attention to this issue than have the

appellants. It merits none further. 

-35-
the trial judge asked a witness about how certain drugs were

"branded" by their packaging.

The remaining nineteen occasions, however, involved the

judge's questioning of a witness and identification of other

individuals named on the Indictment. These occasions all followed

a similar format. We set forth two such examples to demonstrate

the general tenor of what went on.

March 30, 2011--the fifth day of trial--opened with the

prosecutor resuming his questioning of Miguel Antonio Montes

Nieves, who had taken the stand the previous day. At the outset of

his testimony, Montes Nieves stated he was currently incarcerated

following his guilty plea to charges lodged in 2007 of importing

"kilos of cocaine" into Orlando, Florida from Puerto Rico. Up

until his arrest, he was a member of Ayala's DTO, and he began

selling drugs with Ayala and Steven at Barbosa in 1993 or 1994.17

Per Montes Nieves's testimony, Ayala took over Steven's drug point

after Steven was killed. 

During his testimony Montes Nieves mentioned numerous

individuals involved with the DTO, including his brother, who he

first identified as "Miguel Angel Montes." The appellants bring

the following exchange to our attention:

Q. So for how long did your brother work the

drug point after you got indicted?

17 As he had already been convicted for his role in the DTO,

Montes Nieves was not a defendant on the Indictment.

-36-
A. Well, until the day he was arrested.

Q. And do you have a time frame for that?

A. When he was arrested in the indictment

with Angelo [Ayala].

The Court: You say your brother's name is

Miguel Angel Montes Nieves?

The Witness: Yes.

The Court: "Ito."

The Witness: Yes.

The Court: No. 25 of the indictment.

Defense counsel did not object to the trial judge's questioning. 

The twenty-fifth defendant listed on the Indictment is "Miguel

Angel Montes Nieves, 'Ito.'"

Later that day, Montes Nieves testified about a meeting

Ayala had called because "there were so many heroin drug points,

you know, and a lot of people were being arrested." The purpose of

the meeting was to consolidate the drug points: Ayala wanted "to

get the heroin drug points and make it one ten-dollar heroin drug

point and one three-dollar heroin drug point." Montes Nieves

testified that the following understandings came out of the

meeting:

Q. And what else was agreed at that meeting?

A. Well, that there was only going to be one

ten-dollar heroin--

The Interpreter: No, I'm sorry. The

interpreter is going to correct herself. 

"That there was only going to be one tendollar cocaine."

-37-
The Witness: That was [Ayala's]. A fivedollar cocaine, which was [Ayala's]; crack,

which was [Ayala's]; and then the heroin,

well, Omar "El Gordo." "Nino Brown" remained

in charge of the heroin drug point per se. 

You know, they are the ones in charge of

getting the drug, buy the drug, give it to my

brother, who was in charge of the table, and

after the table, seven days a week, each one

of the owners of the drug point--because there

were so many--the ones that I can mention now

are "Raymond," "Chequito," "Popo," Los Olivo--

that is, Rosa, "Ñaña"-- Delvin.

Those are the ones that I remember right now.

Q. What would happen--

The Court: Wait a minute. "Checo" is Jose

Rosario Oquendo?

The Witness: Yes.

The Court: No. 11 in the indictment.18

"Raymond" is Ramon Rosario Oquendo?"

The Witness: Yes.19

The Court: Are they brothers?

The Witness: Yes.

The Court: "Popo" is Pedro Juan Diaz.20

The Witness: I don't know his name. I know

him by "Popo."

18 The eleventh defendant is identified on the Indictment as

"Jose R. Rosario Oquendo, aka 'Checo.'" None of the sixty-five

individuals is identified by the alias, "Chequito." 

19 Defendant number 13 is "Ramon J. Rosario Oquendo, aka

'Raymond.'"

20 Defendant number 15 on the Indictment is "Pedro Juan Diaz,

aka 'Popo.'" 

-38-
The Court: All right. And who were the

girls?

The Witness: Los Olivo.

The Court: Is that Maribel Olivo Rivera?21

The Witness: No, but they are family.

The Court: Angel Soto Olivo?22

The Witness: No.

The Court: All right. Go ahead. 

The prosecutor then resumed the examination, again with no

objection from defense counsel. 

Save one other interaction we will momentarily describe,

this testimony captures the essence of the challenged judicial

conduct. Regardless of whether a witness was testifying on direct

or cross-examination, if he or she mentioned the nickname of an

individual thought to be listed in the Indictment, the trial judge

broke in and asked the witness whether he or she knew more than the

nickname. Sometimes this was done in the form of a question, and

other times by way of an affirmative statement calling for the

witness to respond affirmatively or negatively. If the witness

confirmed the individual's name in full or in part, the trial judge

often went on to state which number defendant he or she was on the

Indictment. This happened eighteen times between March 29 and

April 4, all without objection or comment from defense counsel.

21 Defendant number 59 is "Maribel Olivo Rivera." 

22 Defendant number 43 is "Angel Olivo Rivera, aka 'Tun Tun.'"

-39-
On April 4, the eighth day of trial, and after the

nineteenth such exchange, defense counsel expressed some

displeasure with the trial judge. The triggering interaction

involved the testimony of Jose Arce Baez, a drug seller in the DTO. 

Baez stated on direct examination that he had "exchanged the empty

bag [of drugs] for a full one, from 'Martillo.'" The prosecutor

followed-up by asking if Martillo was a seller too, and Baez

responded "'Martillo' is a seller and he is arrested as well." The

judge then chimed in asking, "Is it Jayson Serrano Andino?" Baez

replied, "I know him as 'Martillo.' I know that his name is

Jayson, but I do not know his last name." The judge then stated

"thirty-one," referring to defendant number 31, "Jayson Serrano

Andino, aka 'Martillo.'" At this point, Ayala's counsel spoke up

and, with the trial judge's permission, "reserve[d] a motion."

After the jury left for the day, Ayala's counsel made an

oral motion "along the lines of the previously made motion."23

Counsel first pointed out that "there has been a pattern and

practice of the Court that when a witness identifies somebody by a

nickname and then a question is asked about what his real name is,

23 The "previously made motion" was Ayala's March 31st mistrial

motion predicated upon a comment made by the trial judge. In

making his April 4th motion, counsel did not explicitly request a

mistrial. Ayala tells us, though, that by referencing his previous

motion he intended to request a mistrial on April 4th. The

government does not dispute Ayala's characterization of the motion. 

Accordingly, we presume the parties (as well as the trial judge)

understood the April 4th motion as one requesting a mistrial, and

we too shall assume Ayala sufficiently preserved a mistrial motion.

-40-
then there is a comment [from the trial judge] about he is No. X in

the indictment that is being tried." Counsel told the trial judge

that he believed the judge's comments improperly added to the

witness's testimony. Specifically, by telling the jury that

"Martillo" was named in the Indictment even though the witness who

mentioned him did not know "Martillo's" full name, the trial judge,

according to counsel, added to the evidence against the appellants. 

In response, the trial judge stated that his comments

were made in order to let the jury know when a witness was

referring to one of "the defendants that are in the indictment." 

He then noted that when he read the Indictment to the jury before

trial began, he did not read the defendants' nicknames or aliases. 

Thus, the trial judge explained that he was eliciting further

information from witnesses and then telling the jury when certain

individuals were named on the Indictment so the jury would know

when a witness was talking about an alleged DTO member. The trial

judge indicated he would stop doing this if defense counsel would

agree "to give the indictment to the jury so they can look up the

names" themselves.

Defense counsel declined the offer. Instead, he asked

the judge to instruct the jury that "only Mr. Ayala" was on trial,

not anyone else named on the Indictment.24 He also asked the trial

judge to tell the jury that, in questioning witnesses, he was "not

24 The trial judge pointed out that Cruz was being tried too. 

-41-
commenting on the facts of the case." The trial judge did not go

along with this proposal, and made a counter-offer instead. The

judge stated he would give an instruction to the effect that none

of the other individuals listed in the Indictment were on trial,

and that "they are only to decide the case of Mr. Ayala and Mr.

Cruz Vazquez." Maintaining he was "not commenting on any facts of

the case," the trial judge refused to give any other instruction. 

Thus, although not stated explicitly on the record, by the end of

the colloquy the trial judge had quite obviously refused to declare

a mistrial. On appeal, Ayala argues the trial judge erred in

refusing to grant his motion for a mistrial.

c. Standard of Review

A trial judge's denial of a motion for a mistrial is

reviewed for abuse of discretion. United States v. Gentles, 619

F.3d 75, 81 (1st Cir. 2010). Ayala based his motion on the trial

judge's questioning of various witnesses and his occasional

comments informing the jury that certain individuals had been named

on the Indictment along with Ayala and Cruz.25 In his view, far

from being innocuous, these comments deprived him of a fair trial

25 Although Ayala seeks to have us review each of the comments

mentioned in his brief, he failed to object to any of the first

eighteen at trial. Moreover, neither he nor Cruz develop any

argument on appeal with respect to the effect of each individual

comment. The appellants have forfeited any argument based on those

specific comments. United States v. Zannino, 895 F.2d 1, 17 (1st

Cir. 1990). Accordingly, we review only the denial of the motion

for a mistrial, taking into account, however, the aggregate effect

of the judge's comments. See United States v. Polito, 856 F.2d

414, 418 (1st Cir. 1998).

-42-
because they actually constituted "crafty herding of the jury to

the Government's side of this controversy." When a party claims a

trial judge's actions deprived him of a fair trial, we review the

objected-to behavior for abuse of discretion, the same standard

applied to our review of the trial judge's denial of the motion for

a mistrial. United States v. Mulinelli-Navas, 111 F.3d 983, 990

(1st Cir. 1997); Walsh v. United States, 371 F.2d 436, 437-38 (1st

Cir. 1967).26 Our inquiry takes into account the record as whole. 

United States v. Polito, 856 F.2d 414, 418 (1st Cir. 1998) (noting

that, when a defendant claims he has been prejudiced through a

trial judge's interventions at trial, "[c]harges of partiality

should be judged not on an isolated comment or two, but on the

record as a whole").

d. Analysis

"It cannot be gainsaid that [a] fair trial in a fair

tribunal is a basic requirement of due process. Accordingly, a

trial judge should be fair and impartial in his or her comments 

during a jury trial." United States v. de la Cruz-Paulino, 61 F.3d

986, 997 (1st Cir. 1995) (internal citations and quotation marks

omitted). Yet, "mere active participation by the judge does not

create prejudice nor deprive the party of a fair trial." Deary v.

26 Ayala urges us to review the district judge's conduct "as

a question of law," by which we presume he is seeking de novo

review. However, the case he cites for this request, Glasser v.

United States, 315 U.S. 60, 82-83 (1942), lends him no support

whatsoever, as the Court applied an abuse of discretion standard in

the cited passage. 

-43-
City of Gloucester, 9 F.3d 191, 194 (1st Cir. 1993); see also

Aggarwal v. Ponce School of Medicine, 837 F.2d 17, 22 (1st Cir.

1988). A judge's permissible participation includes the "common

law power to question witnesses and to analyze, dissect, explain,

summarize, and comment on the evidence." Logue v. Dore, 103 F.3d

1040, 1045 (1st Cir. 1997). What a trial judge may not do,

however, is take on the role of an advocate or "otherwise use his

judicial powers to advantage or disadvantage a party unfairly." 

Id. In that vein, there is no question that it is "improper for a

judge to assume the role of a witness" by testifying to facts or

authenticating evidence. Glasser v. United States, 315 U.S. 60, 82

(1942).

When addressing allegations of judicial bias, we consider

"whether the comments were improper and, if so, whether the

complaining party can show serious prejudice." United States v.

DeCologero, 530 F.3d 36, 56 (1st Cir. 2008). Moreover, our review

focuses on the entire record, "not an isolated comment or two." 

Polito, 856 F.2d at 418. And even an imperfect trial is not

necessarily an unfair trial. United States v. Espinal-Almeida, 699

F.3d 588, 608 (1st Cir. 2012), cert. denied, 133 S. Ct. 1837

(2013), and cert. denied, 133 S. Ct. 2782 (2013).

As a general matter, there is nothing inherently improper

about a judge posing questions at trial. The Federal Rules of

Evidence explicitly vest a trial judge with authority to examine

witnesses. Fed. R. Ev. 614(b) ("The court may examine a witness

-44-
regardless of who calls the witness."). We have also recognized

that a "judge has wide discretion to interject questions in order

to throw light upon testimony or expedite the pace of a trial." 

Logue, 103 F.3d at 1045; see also United States v. Santana-Pérez,

619 F.3d 117, 124 (1st Cir. 2010) ("Among other things, the court

has 'the prerogative, and at times the duty, of eliciting facts he

deems necessary to the clear presentation of issues.'") (quoting

United States v. Paz Uribe, 891 F.2d 396, 400 (1st Cir. 1989))

(further citation omitted). Thus, the trial judge's questions

here, geared towards eliciting identifications of individuals

mentioned by witnesses on the stand, were not necessarily improper

in and of themselves.

But Ayala's appeal is not premised solely on the judge's

questions. According to Ayala, the judge crossed the line into the

realm of advocacy when he informed witnesses that certain

individuals had been indicted along with the appellants. As

discussed above, the record shows that throughout the trial when a

witness confirmed a particular individual had been indicted along

with Cruz and Ayala, the trial judge stated what number defendant

the individual was on the Indictment. For instance, in one of our

testimonial examples above, when witness Miguel Antonio Montes

Nieves mentioned his brother, Miguel Angel Montes Nieves, and

answered affirmatively to the judge's statement that he was known

-45-
as "Ito," the trial judge simply put on the record that this

individual was "No. 25 on the indictment."27

Because Ayala is unable to show prejudice, we need not,

it turns out, determine whether the trial judge acted improperly in

this case: even if the judge erred, we must affirm if we conclude

that any such error was harmless. See United States v. Paiva, 892

F.2d 148, 159 (1st Cir. 1989) (applying harmless error analysis

where the judge erred by "adding to the evidence").28 After

reviewing the entire record, which we do "to avoid magnifying on

appeal incidents that were of little importance or significance at

trial," we are satisfied that any error "had no substantial effect

on the verdict." United States v. Jacquillon, 469 F.2d 380, 387-88

(5th Cir. 1972); see also United States v. Rodriguez-Rivera, 473

F.3d 21, 27 (1st Cir. 2007) ("We must consider alleged examples of

27 Although the judge did not read the forfeiture allegations

to the jury panel, his reading of the earlier portions of the

Indictment was nearly verbatim. The only significant difference is

that the trial judge, for unknown reasons, did not read each of the

nicknames or aliases. 

It is the common practice of the district courts to read a

criminal indictment in full at jury selection. Indeed, there are

many reasons why this should be so, but the one that stands out

here is the unquestioned importance of determining whether any

prospective juror knows a defendant by a nickname or alias. In

light of the multitude of defendants and nicknames in this case, we

are at a loss to explain why--especially in the apparent absence of

any objection--the trial judge read substantially all of the fortyfive-plus pages of the Indictment setting forth the charges against

Ayala and Cruz, but elected not to read the nicknames and/or

aliases.

28 Indeed, even Ayala concedes that harmless error analysis

applies. 

-46-
judicial bias 'in light of the entire transcript so as to guard

against magnification on appeal of instances which were of little

importance in their setting.'") (quoting United States v.

Candelaria-Silva, 166 F.3d 19, 35 (1st Cir. 1999)).

The relative infrequency of the complained-of comments--

which were made on only four of the eighteen days of trial--cuts

against a finding of prejudice. The complete lack of any objection

from defense counsel until the nineteenth such comment further

militates against a finding of reversible error. This is

especially so because the absence of an objection deprived the

trial judge of an earlier opportunity to fully evaluate the effect

of his questioning and comments upon the jury. 

Furthermore, the judge instructed the jury on more than

one occasion that his comments were not evidence and that it was up

to the jury alone to find the facts. Indeed, one such instruction

was given in the middle of trial on April 1, after Ayala's first

motion for a mistrial, which was based on another allegedly

improvident comment by the judge about a witness's testimony.29 The

judge's curative instruction included the following language:

So you, the jury, are the sole judges of the

facts and the credibility of the witnesses. 

Comments by me-- comments by the Court or

counsel are not to be considered as evidence

or as an indication of how to view that

evidence-- how to view a particular testimony

or piece of evidence or weight and value to be

29 A challenge to this comment is not raised on appeal.

-47-
given to that evidence. This is your duty as

jurors.

Notably, the nineteen occasions on which the judge

questioned and/or identified witnesses of which Ayala complains

occurred between March 29 and April 4. This means the jury was

told in the midst of the objected-to conduct that the judge's

comments are not evidence and that the jury is the sole finder of

facts. Given the timing of this instruction vis-à-vis the trial

judge's questions and comments, we keep in mind that "[w]here 'a

curative instruction is promptly given, a mistrial is warranted

only in rare circumstances implying extreme prejudice,'" United

States v. Freeman, 208 F.3d 332, 339 (1st Cir. 2000) (quoting

United States v. Torres, 162 F.3d 6, 12 (1st Cir. 1998)), and we

presume that the jury followed this instruction, Gentles, 619 F.3d

at 82.

The judge's final jury instructions are also relevant to

our prejudice inquiry. At the very beginning of the charge, the

judge reminded the jurors of the respective roles of the judge and

jury: "It is your duty to find the facts from all the evidence

admitted in this case. . . . The determination of the law is my

duty as the presiding Judge in this court." He went on, telling

the jury it "must not read into these instructions or into anything

I may have said or done, any suggestion by me as to what the [sic]

verdict you should return." The judge also addressed the fact that

some witnesses had pleaded guilty in connection with their own

-48-
roles in the DTO: "You may also consider their guilty pleas in

assessing their credibility, but you are not to consider their

guilty pleas as evidence against any defendant in this case."30 

A little later, the judge addressed his questioning of

various witnesses:

In the course of a trial, I

occasionally ask questions of a witness. Do

not assume that I hold any opinion on the

matters to which my questions may relate.

The Court may ask questions simply to

clarify a matter, not to help one side of the

case or hurt another side. Remember at all

times that you, as jurors, are at liberty to

disregard all comments of the Court in

arriving at your own findings as to the facts.

The judge reminded the jury of their role a third and final time

towards the end of the charge: "Your verdict must be based solely

on the evidence and the law as I have given it to you in these

instructions. However, nothing that I have said or done is

intended to suggest what your verdict should be. That is entirely

for you to decide." 

We have long recognized in this Circuit that "'within

wide margins, the potential for prejudice stemming from improper

testimony or comments can be satisfactorily dispelled by

appropriate curative instructions.'" United States v. PagánFerrer, 736 F.3d 573, 587 (1st Cir. 2013) (quoting United States v.

Sepulveda, 15 F.3d 1161, 1184 (1st Cir. 1993)). This is so even

30 Neither Ayala nor Cruz, we note, contests the existence of

the DTO.

-49-
where the curative instruction is contained within the final charge

and not given "immediately following the remark." Gentles, 619

F.3d at 83. And, as we did in Gentles, we note here that the jury

was "amply admonished" during trial that the judge's comments were

not evidence and that the members of the jury are the only finders

of fact. See id. (quoting United States v. de Leon Davis, 914 F.2d

340, 345 (1st Cir. 1990)). The judge's instructions given during

and at the end of trial further cut against a finding of prejudice.

Finally, and perhaps most importantly, we have already

determined that the evidence at trial was sufficient for the jury

to return guilty verdicts against Ayala and Cruz. In fact,

however, the evidence of guilt was overwhelming. Neither Ayala nor

Cruz dispute that a DTO operated out of Barbosa. Cruz even admits

he was part of the DTO, while Ayala concedes on appeal that he

possessed and distributed drugs within Puerto Rico. 

To illustrate the overwhelming nature of the evidence

against them, we reiterate and encapsulate what we previously

discussed in the context of the appellants' challenges to the

sufficiency of the evidence. At trial, numerous witnesses that had

been involved with the DTO testified to Ayala's leadership of it

and Cruz's prominent role at Barbosa. The witnesses testified in

great detail about the types and amounts of drugs brought into

Puerto Rico and distributed at Barbosa, as well as exactly how

large quantities of drugs were shipped from Puerto Rico to the

mainland. Other members of the DTO described the particulars as to

-50-
how drugs were sold at Barbosa, the measures taken to protect the

DTO's sellers from arrest, and the procedures Ayala and Cruz

implemented and enforced to minimize unwanted attention from the

police and to warn drug sellers when police officers came into

Barbosa. There was a significant amount of testimony and

documentary evidence regarding Ayala's and Cruz's efforts to

launder vast amounts of drug money through the purchase of race

cars and luxury vehicles, and by putting on elaborate, high-profile

annual Christmas parties for the Barbosa residents.

Overall, we conclude that the appellants are unable to

show they suffered prejudice as a result of the judge's involvement

at trial in light of the lack of objection to the first eighteen

comments, the curative and final instructions given to the jury,

and the sheer volume of evidence (including witness testimony and

videotapes) introduced against Ayala and Cruz. We are satisfied

that "there is no chance that the remarks made prejudiced the

outcome" of the trial. Gentles, 619 F.3d at 83. Accordingly,

neither Ayala nor Cruz suffered "serious prejudice" as a result of

the trial judge's comments, and neither is entitled to a new

trial.31

31 We take a moment to address Ayala's request that we utilize

our "supervisory power to reverse [his] conviction" because this

particular trial judge "has been given a pass for his behavior

several times" and has "finally crossed the line" here. While

Ayala throws around the term "supervisory power," he does not cite

any authority for what this power supposedly is and how it may

appropriately be exercised here. Accordingly, any such argument

has been waived. Zannino, 895 F.2d at 17. 

-51-
Due to the lack of prejudice here, we conclude that any

error in the judge's questioning and comments was harmless beyond

a reasonable doubt. Accordingly, we have no need to determine

whether the trial judge acted improperly. The question may have

been close with regards to the one objected-to comment, and we

think the judge's questions and comments likely made the

prosecutor's job easier by clearly identifying certain individuals

as members of the DTO. The trial judge, in effect, "filled in the

blanks" for the prosecutor, especially with respect to the

objected-to comment after the witness indicated that he did not

know "Martillo's" full name.

Although we recognize that a trial judge may have "at

times the duty[] of eliciting facts he deems necessary to the clear

presentation of issues," Santana-Perez, 619 F.3d at 124 (internal

quotation mark omitted), no such necessity is apparent on this

We also hasten to point out Ayala's contention that the trial

judge has been "given a pass for his behavior several times" is not

supported by the two cases he cites in his brief, United States v.

Santana-Pérez, 619 F.3d 117, 124-25 (1st Cir. 2010), and United

States v. Ofray-Campos, 534 F.3d 1, 32-34 (1st Cir. 2008). In

Santana-Pérez, we held that even if the judge improperly

demonstrated his disbelief of a witness through the form of his

questions, the questions appeared to have a legitimate goal and,

further, that any error did not satisfy the plain error standard,

the only type of review available for the claim in that case. 

Santana-Pérez, 619 F.3d at 124-25. In Ofray-Campos we concluded

the claim of "judicial bias [was] without merit." Ofray-Campos,

534 F.3d at 34. And even if this particular judge had been

reversed in either of those two prior cases it would have no impact

whatsoever upon our review of this appeal and the outcome here, as

we must resolve this appeal on its own merits. Ayala's invocation

here of our supposed "supervisory power" over the district courts

borders on frivolous. 

-52-
record. From all indications, the prosecutor appears to have been

well-prepared, competent, and more than capable of examining

witnesses effectively and without creating confusion on the part of

the jury. The better practice here, perhaps, would have been for

the trial judge to have read the complete Indictment (including all

nicknames and/or aliases) at jury selection, to have remained

silent and allowed the prosecutor to bring out whatever additional

identifying information that he felt was necessary to his case, or

to have provided the jury with a copy of the Indictment during

trial so that the jury members could follow along and make the

identifications themselves.

Before moving on, we take advantage of this opportunity

to remind trial judges in this Circuit that when they do choose to

exercise their power to actively involve themselves at trial, they

must remain constantly vigilant to ensure they do not infringe upon

the province of the jury by commenting or appearing to comment

(positively or negatively) on a witness's credibility. Similarly,

trial judges must guard against adding to the evidence or smoothing

the pathway to a verdict in favor of either side under the guise of

questioning witnesses or commenting on the evidence. In sum, trial

judges must do their utmost to avoid creating the impression that

they are anything other than unbiased neutral arbiters. See Starr

v. United States, 153 U.S. 614, 626 (1894) ("It is obvious that

under any system of jury trials the influence of the trial judge on

the jury is necessarily and properly of great weight, and that his

-53-
lightest word or intimation is received with deference, and may

prove controlling."); see also Glasser, 315 U.S. at 82 (A trial

judge bears "the responsibility of striving for that atmosphere of

perfect impartiality which is so much to be desired in a judicial

proceeding."). While we are well-aware of the many challenges

presented to a district court judge presiding over a long and

contentious trial, these are bedrock principles fundamental to the

administration of justice. We are confident that the judges in

this Circuit are up to the task.

IV. CRUZ'S LIFE SENTENCE

Finally, we reach Cruz's challenge to the life sentence

imposed on him by the trial judge at the sentencing hearing. At

sentencing, the judge applied the Sentencing Guidelines

("Guidelines") and determined that Cruz's base offense level based

on the crimes of conviction and the involved drug quantity was

thirty-eight. He then applied enhancements based on findings that

the crime occurred in a "protected location," that it was

reasonably foreseeable to Cruz that weapons "were possessed,

carried and used by" members of the DTO, and because Cruz was an

organizer of criminal activity that involved five or more

participants. All told, the trial judge calculated a total offense

level of forty-four, which he then treated as an offense level of

forty-three per the Guidelines' requirements. With a total offense

-54-
level of forty-three, the Guidelines-recommended punishment was

life in prison, a sentence which the judge proceeded to impose.

Although the arguments set forth in his brief could have

been stated with better clarity, Cruz essentially claims the

district court committed a variety of procedural errors with

respect to sentencing, and that the life sentence is substantively

unreasonable.32 He argues it is unfair that he received the same

life sentence as Ayala because Ayala was the leader while he was

merely a "third tier administrator." He also believes his life

sentence is not reasonable in comparison with those imposed on four

codefendants who entered guilty pleas and were sentenced to 156

months, 180 months, 108 months, and 132 months, respectively. He

succinctly describes the sentencing range he believes is justified

by the evidence as follows: "[a] sentence higher than what the codefendants who pled [guilty] but lower than what the leader [i.e.,

Ayala] received would have been a 'reasonable' sentence." The

government predictably argues that the district court properly

followed sentencing procedures and that the sentence is not

unreasonable given that it is in accordance with the sentencing

guidelines and is appropriate to Cruz's role in the drug

conspiracy. We deal with these challenges seriatim.

32 Cruz's brief has a tendency to combine, rather than

separate, his arguments with respect to procedural and substantive

unreasonableness.

-55-
a. Standard of Review

The Supreme Court has clearly delineated the nature and

scope of our review of the district judge's sentencing decision.

"[A]ppellate review of sentencing decisions is limited to

determining whether they are 'reasonable.'" Gall v. United States,

552 U.S. 38, 46 (2007). Our "'review process is bifurcated: we

first determine whether the sentence imposed is procedurally

reasonable and then determine whether it is substantively

reasonable.'" United States v. Leahy, 668 F.3d 18, 21 (1st Cir.

2012) (quoting United States v. Clogston, 662 F.3d 588, 590 (1st

Cir. 2011)). We employ the abuse of discretion standard in

reviewing claimed procedural errors and in our consideration of the

sentence's substantive reasonableness. United States v. Politano,

522 F.3d 69, 72 (1st Cir. 2008). And we take into account the

totality of the circumstances surrounding both procedural and

substantive reasonableness. Gall, 552 U.S. at 51. 

We take up consideration of the procedural and

substantive reasonableness of Cruz's sentence in turn. 

b. Procedural Reasonableness

When we review a sentence's procedural reasonableness, we

must "ensure that the district court committed no significant

procedural error, such as failing to calculate (or improperly

calculating) the Guidelines range, treating the Guidelines as

mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors,

-56-
selecting a sentence based on clearly erroneous facts, or failing

to adequately explain the chosen sentence--including an explanation

for any deviation from the Guidelines range." Gall, 552 U.S. at

51. We make use of a "multi-faceted" abuse of discretion standard

to make these determinations. Leahy, 668 F.3d at 21. "We review

factual findings for clear error, arguments that the sentencing

court erred in interpreting or applying the guidelines de novo, and

judgment calls for abuse of discretion simpliciter." Id.

(citations omitted). 

Cruz's procedural challenge is limited in that he does

not contest the district judge's determination that the Guidelines

recommended a life sentence based on the crimes of conviction and

enhancements, nor does Cruz assert that his sentence was based upon

clearly erroneous findings of fact or that the district judge

failed to adequately explain the life sentence. Instead, Cruz

argues that the district judge erred by treating the Guidelines as

mandatory. He further argues his sentence should be vacated

because it is (1) disproportionate to the shorter sentences imposed

on other codefendants who entered into plea agreements with the

government, and (2) equal in length to the life sentence given to

his brother Ayala, who headed up the entire illicit organization. 

According to Cruz, this outcome demonstrates that the district

judge failed to apply the Section 3553(a) factors in crafting his

sentence. Thus, Cruz urges us to find the district judge "failed

to make an appropriate individualized assessment and because he

-57-
went to trial considered the guidelines mandatory[,] all which rise

to the level of procedural error warranting remand for

resentencing."

The first claimed error need not detain us long. 

Although "treating the Guidelines as mandatory" is procedural

error, Gall, 552 U.S. at 51, the district judge did not do so here. 

Before pronouncing sentence he explicitly referred to the

Guidelines as "advisory." Nothing in the transcript of the

sentencing hearing gives even the barest hint that, in spite of

this statement, the district judge felt bound by the Guidelines or

that he considered the life sentence to be mandatory. 

Cruz's more significant procedural argument is his

contention that the district judge failed to apply 18 U.S.C. §

3553(a)(6) because he did not consider the disparity between his

sentence and those given to Ayala and to other codefendants who cut

plea deals. Cruz had asked the district court to apply a belowGuidelines sentence in light of shorter sentences meted out to

others involved in the DTO. He argued that this specific factor,

18 U.S.C. § 3553(a)(6), requires a sentencing court to consider

"the need to avoid unwarranted sentence disparities among

defendants with similar records who have been found guilty of

similar conduct."33

33 The government contends that Cruz waived any arguments of

disparity between himself and Ayala by failing to raise them at the

sentencing hearing. In his Sentencing Memorandum filed prior to

hearing, Cruz set forth his position that the Guidelines range is

-58-
Cruz insists on appeal that the codefendants who entered

guilty pleas are "similar" to him for purposes of sentencing

because, like those individuals, Cruz was not the head of the DTO. 

He claims this type of comparison to the other "less culpable"

defendants in his own case is mandated by Gall v. United States,

552 U.S. 38 (2007). And because the district judge refused to

compare his sentence against those of other codefendants as

required by § 3553(a)(6), Cruz contends his sentence is illegal. 

See Gall, 552 U.S. at 51 (including a sentencing court's failure to

consider the § 3553(a) factors among the species of procedural

sentencing errors).

The government fires back, defending the trial judge's

decision on two fronts. First, the government argues that the

disparities to which § 3553(a) refers are national sentencing

disparities, not disparities within one specific case. The

government further urges us to find that because the other

"so high" as a result of "facts affecting co-defendant [Ayala]

directly and not pertaining to [Cruz]." According to Cruz, "there

was a great difference in the evidence presented during trial as to

what pertained to [Cruz] and to what pertained to co-defendant

[Ayala]." Cruz then argued it would be "unjust and unfair" to

weigh these facts against Cruz as heavily as against Ayala. At the

sentencing hearing, counsel stated Cruz would rely on the

Sentencing Memorandum, but also expressed his opinion that most of

the evidence at trial was directed towards Ayala, not Cruz. And,

although the majority of his "disparity arguments" focused on the

lesser sentences meted out to "defendants with similar records and

conduct," the issues of his culpability compared to Ayala and of

sentencing disparities among defendants named in the Indictment

were clearly raised before the district court. Therefore, we

decline to find that Cruz waived this aspect of his argument. 

-59-
codefendants pleaded guilty and thereby accepted responsibility for

their roles in the DTO, they are not in a similar position to Cruz,

and it is not appropriate to compare their sentences to Cruz's.

Here, the district judge stated he considered all of the

factors enumerated in 18 U.S.C. § 3553(a) in crafting Cruz's

sentence. The judge's explicit statement is a point in favor of

our finding that the judge weighed each of those factors and,

therefore, that the sentence is procedurally reasonable. See

Clogston, 662 F.3d at 592 (giving "some weight" to a sentencing

judge's statement that he considered all of the § 3553(a) factors). 

Accordingly, we presume the trial judge applied 18 U.S.C. §

3553(a)(6) and considered whether Cruz's life sentence was

disparate as compared to other individuals with similar records and

who had been convicted of similar crimes. 

When weighing the § 3553(a) factors, the trial judge

categorically rejected Cruz's assertion that he is "similar" to

others who entered guilty pleas and, therefore, that his sentence

should be commensurate with theirs. Noting that the other

individuals to whom Cruz referred did not require the government to

bring them to trial, he stated "the [sentencing] [G]uidelines are

very specific that once you go to trial and are found guilty, it is

a completely different analysis than it is if you plead guilty and

are sentenced." He further made it clear that he did not feel

compelled to conform Cruz's sentence to those of his codefendants

as, when it comes to disparate sentence lengths, the "disparity [to

-60-
be considered] is among defendants in similar cases throughout the

nation, and not within just one case."34 We take the trial judge

at his word that he did not consider Cruz's sentence in light of

those given to the other codefendants who pleaded guilty because,

in his view, those individuals were not similarly situated to Cruz

for sentencing purposes. The judge did not err in so concluding.

Cruz relies heavily on Gall and posits that the Supreme

Court's holding there required the trial judge to compare his

sentence to those of other codefendants in his case. Cruz,

however, misapprehends Gall's teaching. In reality, Gall's core

holding is that a sentencing court should not blindly apply the

advisory Guidelines to an individual before it and should

"'consider every convicted person as an individual and every case

as a unique study in the human failings that sometimes mitigate,

sometimes magnify, the crime and the punishment to ensue.'" 552

U.S. at 52 (quoting Koon v. United States, 518 U.S. 81, 113

(1996)). To that end, and after affording both parties "an

opportunity to argue for whatever sentence they deem appropriate,

the district judge should then consider all of the § 3553(a)

factors to determine whether they support the sentence requested by

a party." Id. at 49-50. We have recognized that in light of Gall

and other related Supreme Court opinions, "district judges are

34 Focusing his argument on his codefendants, Cruz does not

argue that his sentence is not in accordance with those given to

similar defendants on a national scale. As such, any such argument

has been waived. 

-61-
empowered with considerable discretion in sentencing . . . ." 

United States v. Taylor, 532 F.3d 68, 69 (1st Cir. 2008). Of equal

importance, Gall firmly establishes that such determinations are

the province of the sentencing courts, not the courts of appeal. 

Gall, 552 U.S. at 52 ("The uniqueness of the individual case,

however, does not change the deferential abuse-of-discretion

standard that applies to all sentencing decisions.").

Cruz's assertion that Gall requires the district judge to

conform his sentence to those given his other codefendants is

nothing more than wishful thinking. To be sure, because Cruz

raised the issue at sentencing, the district judge certainly could

have considered the disparity between Cruz's and Ayala's sentences

and Cruz's and the other codefendants' sentences in fashioning

Cruz's sentence. United States v. Martin, 520 F.3d 87, 94 (1st

Cir. 2008) ("[D]istrict courts have discretion, in appropriate

cases, to align codefendants' sentences somewhat in order to

reflect comparable degrees of culpability--at least in those cases

where disparities are conspicuous and threaten to undermine

confidence in the criminal justice system."). Even after Gall,

however, "consideration of sentencing disparity primarily targets

disparities among defendants nationally." United States v.

McDonough, 727 F.3d 143, 165 (1st Cir. 2013).35 Thus, the

35 Cruz tells us the Supreme Court rejected this proposition

by vacating our judgment in United States v. Tom, 504 F.3d 89, 94

(1st Cir. 2007) and remanding it to us "for further consideration

in light of" Gall. Tom v. United States, 552 U.S. 1163 (2008). 

-62-
sentencing judge was not bound, as a matter of law, to explicitly

consider disparities between Cruz's sentence and those given to

Ayala and to codefendants who pleaded guilty.

After carefully reviewing the sentencing record, we

conclude that Cruz has failed to show his sentence was affected by

any procedural error.

c. Substantive Reasonableness

Having found no procedural error, we move on to Cruz's

argument that his life sentence is substantively unreasonable in

light of what he characterizes as his limited role in the DTO. 

Although there is no question here that Cruz's life sentence is a

Guidelines sentence, we review sentences for substantive

reasonableness "regardless of whether they fall inside or outside

the applicable Guidelines sentencing range." United States v.

Morales-Machuca, 546 F.3d 13, 25 (1st Cir. 2008). We "consider the

substantive reasonableness of the sentence imposed under an abuseof-discretion standard," taking into account all of the relevant

After taking up the matter again, we ordered the district court to

reconsider its sentence in accordance with Gall and the concerns

expressed in our earlier 2007 opinion, including our judgment that

"the justifications given by the court for its lenient sentence did

not adequately consider the national interests in federal

sentencing, exemplified in part by the Sentencing Guidelines." 

United States v. Tom, 275 F. App'x 23, 24 (1st Cir. 2008)

(unpublished) (emphasis added). Hence, the ultimate disposition of

this case belies Cruz's position. We find no support for, and

consequently reject, Cruz's argument that Tom, 504 F.3d 89, and

other cases expressing a concern about national sentencing

disparities "are no longer good law."

-63-
circumstances. Gall, 552 U.S. at 51; Leahy, 668 F.3d at 24

(quoting Martin, 520 F.3d at 92).

"[T]he linchpin of a substantively reasonable sentence is

a plausible sentencing rationale and a defensible result." United

States v. Pol-Flores, 644 F.3d 1, 4-5 (1st Cir. 2011) (internal

quotation marks and alterations omitted). "Challenging a sentence

as substantively unreasonable is a burdensome task in any case, and

one that is even more burdensome where, as here, the challenged

sentence is within a properly calculated [Guidelines Sentencing

Range]." Clogston, 662 F.3d at 592-93. Cruz "must adduce fairly

powerful mitigating reasons and persuade [this Court] that the

district judge was unreasonable in balancing pros and cons." 

United States v. Batchu, 724 F.3d 1, 14 (1st Cir. 2013) (internal

quotation marks omitted).

Cruz faces a high hurdle and, as it turns out, one he is

unable to surmount. Echoing his arguments with respect to his

claims of procedural error, Cruz maintains that his life sentence

is not substantively reasonable because, although he was but a

"third tier administrator" of the DTO, his sentence is equal to the

one meted out to Ayala, the DTO's kingpin. Thus, the focus in

these arguments is Cruz's contention that he should not be

subjected to the same penalty as Ayala because Ayala was more

culpable than him with respect to the substantial overarching drug

conspiracy. Cruz lays out a laundry list of bad acts committed by

his brother, but ostensibly not by him, and bluntly asserts that in

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light of their differing conduct, he "did not deserve the same life

sentence" as his brother. 

In Cruz's view, he received a life sentence only because

the district judge employed a "strict application of the guidelines

as reprisal for [Cruz] having gone to trial." He contends that

being punished in this way for exercising his constitutional right

to a jury trial renders his sentence substantively unreasonable. 

A reasonable sentence, he asserts, would be something less than

life, but lengthier than the sentences given to codefendants who

pleaded guilty.

The government points out that the district judge

correctly calculated Cruz's offense level and the Guidelinesrecommended sentence. The government goes on to argue that the

evidence at trial regarding Cruz's personal involvement in the DTO

justified his life sentence. Accordingly, the government urges us

to find the district judge did not err by imposing a Guidelines

sentence.

The Supreme Court has recognized that, in general, the

Guidelines sentencing ranges "reflect a rough approximation of

sentences that might achieve § 3553(a)'s objectives." United

States v. Rita, 551 U.S. 338, 350 (2007). Further, "when a

district judge's discretionary decision in a particular case

accords with the sentence the United States Sentencing Commission

deems appropriate 'in the mine run of cases,' the court of appeal

may presume that the sentence is reasonable." Gall, 552 U.S. at 40

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(quoting Rita, 551 U.S. at 350-51). Nevertheless, and although the

Supreme Court has explicitly given us the authority to apply this

presumption of reasonableness, we have elected not to do so in this

Circuit. See United States v. Madera-Ortiz, 637 F.3d 26, 30 (1st.

Cir 2011); United States v. Jiménez-Beltre, 440 F.3d 514, 518 (1st

Cir. 2006) (finding it is "not . . . helpful to talk about the

[G]uidelines as 'presumptively' controlling or a [G]uidelines

sentence as 'per se reasonable'"). The district judge here

recognized the Guidelines are advisory only, yet after

consideration of the factors set forth in 18 U.S.C. § 3553(a),

imposed the Guidelines-recommended sentence of life imprisonment. 

Cruz, however, fails to convince us that his sentence is

substantively unreasonable.

Throughout his brief, Cruz maintains his sentence should

be less lengthy than Ayala's because Ayala was "more culpable" in

the drug conspiracy. Cruz also asserts that his culpability was

more akin to that of the other codefendants who entered guilty

pleas and received sentences that do not come close to approaching

life in prison. In staking out this territory, Cruz misapprehends

our function as an appellate court and the scope of our review. 

Determinations as to the relative culpability amongst codefendants

are best made by the district judge, who presided at trial,

attended to the testimony of the witnesses, and viewed the exhibits

along with the jury. See Gall, 552 U.S. at 51-52 (quoting Koon v.

United States, 518 U.S. at 98) (recognizing district court judges

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have "'an institutional advantage over appellate courts in making

these sorts of determinations'"). And because the coconspirators

who received lesser sentences had entered guilty pleas whereas Cruz

stood trial, the district judge was not required to conform Cruz's

sentence to theirs because those individuals were not similarly

situated to him. United States v. Rodriguez-Lozada, 558 F.3d 29,

45-46 (1st Cir. 2009) (affirming life sentence where the

Guidelines-recommended range ran from 360 months to life in light

of the "material difference" between the defendants who entered

guilty pleas (and received more lenient sentences) and the one who

stood trial, such that the sentencing disparity did not "amount to

an abuse of discretion"). Accordingly, Cruz's life sentence is not

substantively unreasonable simply because certain codefendants

received more lenient sentences after they pleaded guilty. 

Cruz's next argument is that the district judge failed to

consider the fact that his "personal characteristics reflected

rehabilitative potential," and justified a below-Guidelines

sentence. Cruz notes first that although he himself was abused as

a child and witnessed domestic violence in his home, he is a "good

family man and parent." To highlight his rehabilitative potential,

Cruz points out that "[a]lthough he lived in such a negative, drug

laden environment he never consumed any drugs and when arrested

tested negative for all narcotics." Cruz urges us find that the

district judge improperly failed to give any consideration to his

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personal situation and that, had it done so, it would have imposed

a lesser sentence.

Cruz's objections are wholly without merit. The district

judge in fact explicitly considered (1) Cruz's arrest record and

absence of criminal record; (2) his managerial role in the drug

conspiracy; (3) the goals of sentencing, e.g., punishment, and

deterrence; and (4) Cruz's history and characteristics. Indeed,

with respect to Cruz's personal history, the district court found

he "abandoned school after the eighth grade," "has no specialized

skills, training or professional license," and only "a limited

history of formal employment." Although the district court could

have considered Cruz's background and claimed lack of drug use as

a point in his favor, it could also have concluded his

participation in such a wide-ranging conspiracy that preyed upon

society's weakest and most vulnerable made his actions even more

egregious than someone who participated only as a way to make money

to support his own drug addiction.

At bottom, it is manifest from the record that the

district judge was not convinced that anything in Cruz's background

warranted departure from the Guidelines-recommended sentence. 

"That the court chose to attach less significance to certain

mitigating circumstances than [Cruz] thinks they deserved does not

make his sentence substantively unreasonable." United States v.

Colón-Rodríguez, 696 F.3d 102, 108 (1st Cir. 2012). Moreover, Cruz

has wholly failed to come forward with any mitigating reasons,

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never mind "fairly powerful ones," and we are not persuaded that

the district judge unreasonably balanced the factors that went into

crafting Cruz's sentence. Batchu, 724 F.3d at 13 (internal

quotation marks omitted). 

All in all, the record demonstrates the district judge

imposed a life sentence only after considering Cruz's individual

characteristics and history, his prominent role in the conspiracy,

and the other factors set forth in § 3553(a). Cruz has not

convinced us that the district judge abused his discretion in

imposing the Guidelines-recommended life sentence. Cruz's sentence

is affirmed.

CONCLUSION

The sheer size, scope, sophistication, and profitability 

of the DTO's Barbosa operations are enough to take one's breath

away. The human toll exacted by its illicit activity is

unknowable. Only through a painstaking investigation was law

enforcement able to curtail its operations and begin to bring its

members and leaders to justice. Rather than face trial and the

prospect of paying the full, heavy price for their crimes, many of

these individuals elected to plead guilty in the hope of receiving

leniency. 

Not so Ayala and his brother Cruz. Much as Tennyson's

Balin and Balan36 together sat upon their horses and tested their

36 Alfred, Lord Tennyson, Idylls of the King, Balin and Balan,

in The Complete Poetical Works of Tennyson 357-66 (Cambridge ed.,

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might against all-comers, these two brothers stood their ground

against the full force of the evidence marshaled by the federal

government and the testimony of their own partners in crime. In

the end, however, Cruz and Ayala fared little better than did Balin

and Balan, who perished in each other's arms. The mountains of

evidence at trial proved beyond a reasonable doubt that Ayala was

the DTO's kingpin, and that his brother Cruz was a trusted

lieutenant who helped him oversee and control the scores of

individuals involved in the drug sales at Barbosa. Ayala and Cruz,

bound together initially by their blood, will now share the same

fate: life in prison.

While the brothers struggle mightily in this appeal to

get out from under their shared doom, after careful consideration

we conclude there is no merit to any of the grounds raised on

appeal. Accordingly, we affirm the convictions of Ayala and Cruz

in all respects. We affirm Cruz's life sentence as well.

Cambridge, Houghton, Mifflin & Co. 1898).

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