United States Court of Appeals

For the First Circuit

No. 02-1466

UNITED STATES OF AMERICA,

Appellee,

v.

JULIO PEREZ-RUIZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

 Boudin, Chief Judge,

Selya, Circuit Judge,

and Siler,* Senior Circuit Judge.

Bruce J. McGiverin, by appointment of the court, with whom

Julio Pérez-Ruiz, pro se, was on brief, for appellant.

Thomas F. Klumper, Assistant United States Attorney, with whom

H. S. Garcia, United States Attorney, and Sonia I. Torres, Chief,

Criminal Division, were on brief, for appellee.

December 19, 2003

__________

*Of the Sixth Circuit, sitting by designation.
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SELYA, Circuit Judge. Defendant-appellant Julio PérezRuiz, sometimes known by the sobriquet "Goyito," asks us to reverse

his conviction for conspiracy to distribute narcotics or, in the

alternative, to vacate his sentence. Although we discern no

reversible error with regard to the conviction, we conclude that

the district court sentenced the appellant to life imprisonment in

violation of the rule announced in Apprendi v. New Jersey, 530 U.S.

466 (2000). Because we cannot classify that error as harmless

beyond a reasonable doubt, we vacate the sentence and remand for

resentencing.

I. BACKGROUND

This appeal challenges a myriad of rulings. Accordingly,

we offer a balanced account of the overall facts, consistent with

record support. United States v. Piper, 298 F.3d 47, 50 (1st Cir.

2002). We recount further facts relevant to particular claims in

later sections of this opinion.

On June 29, 2000, a federal grand jury returned a

superseding indictment against several persons. The indictment

charged the appellant, inter alios, with participating in a longrunning conspiracy to distribute multi-kilogram quantities of

controlled substances. See 21 U.S.C. §§ 841(a)(1), 846. After

much procedural skirmishing (the details of which need not concern

us), the case went to trial.
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Based on the trial testimony, the jury plausibly could

have found that the appellant controlled a drug point in the

Caracolas ward of Peñuelas, Puerto Rico. Witnesses testified that

the appellant received narcotics from Francisco Zaeton-Pabon (known

as "Paquito") and employed others to help him peddle the contraband

at the drug point. The government presented evidence that the drug

point was part of a larger drug-trafficking empire presided over by

Miguel A. O'Connor-Colon (known as "La Cabra") and that La Cabra's

organization dealt in a variety of controlled substances (including

heroin, powdered cocaine, and crack cocaine). The government also

presented evidence that the appellant participated in the murder of

Saul Perez, an apostate drug dealer who had broken with La Cabra.

In due course, the jury found the appellant guilty of

participating in the larger drug-trafficking conspiracy. The

district court sentenced him to life imprisonment. This timely

appeal ensued. In it, the appellant presses a salmagundi of

arguments. Most of them — dealing with subjects as diverse as

prejudicial variance, delayed discovery, improper vouching, and

erroneous evidentiary rulings — need not detain us. We dispose of

those flawed challenges in decurtate fashion and then focus our

attention on the appellant's more substantial arguments: (i) his

claim that a government agent improperly bolstered the testimony of

a key cooperating witness, and (ii) his claim of Apprendi error.
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II. PREJUDICIAL VARIANCE

Although the appellant concedes that the jury

instructions were proper and that the evidence, taken in the light

most favorable to the government, permits a finding that he

operated and controlled the Caracolas drug point, he insists that

the evidence does not suffice to ground a finding, beyond a

reasonable doubt, that this drug point was part of La Cabra's

empire. On this basis, he argues that a material variance existed

between the crime charged in the indictment (participating in La

Cabra's master conspiracy) and the crime that the government

actually succeeded in proving (participating in a more modest

conspiracy). This claim requires us to determine whether a

variance occurred and, if so, whether that variance prejudiced the

appellant's substantial rights. See United States v. Arcadipane,

41 F.3d 1, 6 (1st Cir. 1994); United States v. Khoury, 901 F.2d

948, 956 (11th Cir. 1990).

When, as now, a defendant asserts a claim of variance

premised on the notion that multiple conspiracies existed and that

his activities were not part of the charged conspiracy, the initial

question — and the only one that we need to reach here — is one of

evidentiary sufficiency. United States v. Wihbey, 75 F.3d 761,

773-74 (1st Cir. 1996). In conducting our review, we employ the

same framework that we employ in connection with other sufficiency

challenges in criminal cases: we "canvass the evidence (direct and
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circumstantial) in the light most agreeable to the prosecution and

decide whether that evidence, including all plausible inferences

extractable therefrom, enables a rational factfinder to conclude

beyond a reasonable doubt that the defendant committed the charged

crime." United States v. Noah, 130 F.3d 490, 494 (1st Cir. 1997).

Credibility issues must be resolved in favor of the verdict. See

United States v. Alicea, 205 F.3d 480, 483 (1st Cir. 2000). We

must reject the appellant's claim as long as a plausible reading of

the record supports the jury's implied finding that he knowingly

participated in the charged conspiracy. United States v.

Sepulveda, 15 F.3d 1161, 1173 (1st Cir. 1993).

Courts typically look to the totality of the

circumstances in determining whether the proof suffices to

establish a single, overarching conspiracy. Relevant factors may

include such things as "(1) the existence of a common purpose, such

as selling drugs for profit, (2) the interdependency of various

elements in the plan, such as whether the success of an

individual's own drug transactions depends on the health and

success of the drug trafficking network that supplies him, and (3)

the degree of overlap among the participants." United States v.

Soto-Beníquez, ___ F.3d ___, ___ (1st Cir. 2003) [No. 01-1619, slip

op. at 18-19].

There is no cognizable variance here. The jury heard

evidence that the appellant controlled the Caracolas drug point;
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that the drug point was located at the epicenter of La Cabra's

sphere of influence; that Paquito (La Cabra's triggerman and a

self-confessed member of the master conspiracy) supplied the

appellant with narcotics; that the appellant accompanied Paquito

during the assassination of Saul Perez (a murder committed to

further the interests of the master conspiracy); and that the

appellant frequently interacted with other members of La Cabra's

team. At the very least, this evidence permitted a rational

inference that the appellant's drug point was part and parcel of

the master conspiracy. See United States v. LiCausi, 167 F.3d 36,

45 (1st Cir. 1999) ("Whether a single conspiracy or a multiple

conspiracy exists is, of course, a question of fact for the

jury."); see generally United States v. Lara, 181 F.3d 183, 204

(1st Cir. 1999) (stating that "[j]urors are entitled to draw

reasonable inferences from proven facts"). Consequently, we hold

that the jury reasonably could have concluded that the appellant

and La Cabra shared a common purpose; that their operations had the

requisite degree of interdependency; and that, therefore, the

appellant's operation was a subset of La Cabra's master conspiracy.

There was no variance.

III. FAILURE TO GRANT A CONTINUANCE

The appellant's claim that the lower court erred in

declining to grant a continuance after the delayed disclosure of

Brady/Giglio material is easily dispatched. The facts are as
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follows. The government's star witness, Joelle Irizarry, had been

treated in the past at a Puerto Rican prison hospital. Apparently,

the government had obtained Irizarry's prison medical records and

disclosed them to a different defendant in a different case in

which Irizarry was to appear as a witness. One of the lawyers in

that case furnished a copy of the records to the appellant's

attorney after the appellant's trial was under way. During the

defense case, the attorney called the district court's attention to

the records and claimed that the prosecution had intentionally

withheld the mental health information contained therein. This

improper withholding, the attorney alleged, abridged the

appellant's constitutional rights. See Brady v. Maryland, 373 U.S.

83, 87 (1963) (holding that the prosecution violates due process

when it suppresses material evidence favorable to the accused); see

also Giglio v. United States, 405 U.S. 150, 154 (1972) (concluding

that the nondisclosure of impeachment information falls within the

Brady rubric).

Defense counsel requested additional time to inspect the

records. Noting that they had been in counsel's possession for at

least thirty-six hours, the district court denied the request. The

court did, however, offer to allow the appellant to recall Irizarry

for further cross-examination. The appellant eschewed that

opportunity.
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We review the district court's decision to deny a

continuance for abuse of discretion. See United States v.

Saccoccia, 58 F.3d 754, 770 (1st Cir. 1995); United States v.

Devin, 918 F.2d 280, 289 (1st Cir. 1990). We are satisfied that no

such abuse occurred in this case.

When Brady or Giglio material surfaces belatedly, "the

critical inquiry is not why disclosure was delayed but whether the

tardiness prevented defense counsel from employing the material to

good effect." Devin, 918 F.2d at 290. According to the appellant,

the delayed disclosure here, coupled with the trial court's refusal

to grant a continuance, prevented him from pursuing a strategy to

"explore, through cross examination or expert testimony, whether

Irizarry suffered from delusions or some mental condition that

impaired his credibility or ability to perceive and recall events."

Appellant's Br. at 38. There are several reasons why we deem this

argument unpersuasive.

In the first place, some showing of prejudice beyond mere

assertion is required in the delayed disclosure context. United

States v. Smith, 292 F.3d 90, 103 (1st Cir. 2002); United States v.

Walsh, 75 F.3d 1, 8 (1st Cir. 1996). The appellant has made none

(and, thus, has failed to demonstrate that either the delayed

receipt of the records or the court's insistence on going forward

foreclosed a viable strategic option).
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In the second place, a delayed disclosure only leads to

the upsetting of a verdict when there is a reasonable probability

that, had the evidence been disclosed to the defense in a timeous

manner or had the trial court given the defense more time to digest

it, the result of the proceeding would have been different. United

States v. Bagley, 473 U.S. 667, 678 (1985). The events here cannot

pass that screen. A review of the record leaves no doubt about

defense counsel's ability to impeach Irizarry using other evidence,

such as Irizarry's status as both a confessed drug dealer and a

cooperating witness. The ability to mount an effective crossexamination often is of great significance in delayed disclosure

cases involving impeachment evidence, see, e.g., United States v.

Mooney, 315 F.3d 54, 64 (1st Cir. 2002), and we find it significant

here.

Last — but far from least — the missing records were

neither voluminous nor arcane, and defense counsel had roughly

thirty-six hours in which to scrutinize them before he brought the

matter to the forefront. The district court found that he had had

sufficient opportunity to comprehend their significance and to

consult with an expert if he had so desired. That supportable

finding weighs heavily in favor of the court's decision that more

time was unwarranted. See Saccoccia, 58 F.3d at 770 (considering

"the amount of time previously available for preparation and how

assiduously the movant used that time"). So too does the fact that
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defense counsel refused the court's invitation to recall Irizarry

for further cross-examination. Given the totality of the

circumstances, we cannot say that the trial court abused its

discretion in denying the appellant's request for a continuance.

IV. THE VOUCHING CLAIM

Next, the appellant complains that the prosecutor was

guilty of vouching for the government's witnesses. This complaint

focuses on the following passages of the prosecutor's rebuttal

argument:

! You think, and think about this. If they

were all going to get up and make up a story,

wouldn't it have been a better story?

Couldn't have Joelle come in here and made it

a better story? That every day he was at the

point, I saw Julio come in with Paquito with

all of the bags of heroin. Wouldn't that make

a better story? Couldn't Nazario have said:

I saw Paquito, Goyito. I saw Goyito; I saw

the money being passed.

! [I]f Goyito has nothing to do with Paquito

and his group, why would he participate in the

killing of Saul Perez? Let's go over this,

Joelle is in prison, and he doesn't come out

till 1999. Wouldn't it have been a better

story to say that Goyito (spoke in Spanish),

that he had shot Saul? Wouldn't that be a

better story, wouldn't it, to put the gun in

his hand?

Since the appellant's plaints are raised for the first

time on appeal — he interposed no contemporaneous objections to

these comments — our review is for plain error. Under that

grueling standard, we can reverse only if the appellant

demonstrates "(1) that an error occurred (2) which was clear or
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obvious and which not only (3) affected the defendant's substantial

rights, but also (4) seriously impaired the fairness, integrity, or

public reputation of judicial proceedings." United States v.

Duarte, 246 F.3d 56, 60 (1st Cir. 2001). We find no error here,

plain or otherwise.

A prosecutor improperly vouches for a witness when she

places the prestige of her office behind the government's case by,

say, imparting her personal belief in a witness's veracity or

implying that the jury should credit the prosecution's evidence

simply because the government can be trusted. See United States v.

Figueroa-Encarnación, 343 F.3d 23, 28 (1st Cir. 2003). Such

tactics are not to be condoned. They tilt the scales of justice,

risk prejudicing the defendant, and carry the potential for

distracting the jury from its assigned task of assessing

credibility based solely on the evidence presented at trial and the

demeanor of the witnesses.

We do not think that the statements by the prosecutor,

quoted above, constituted vouching or were otherwise improper. As

this court explained in United States v. Rodríguez, 215 F.3d 110,

123 (1st Cir. 2000), "an argument that does no more than assert

reasons why a witness ought to be accepted as truthful by the jury

is not improper witness vouching." Here, the prosecutor was merely

asking the members of the jury to use their common sense in

evaluating the witnesses' testimony. She neither expressed her
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personal opinion regarding the veracity of any witness nor implied

that Irizarry should be trusted because of some connection to the

government.

Moreover, the quoted statements were a logical counter to

the assertions of defense counsel, made in summation, that various

government witnesses had fabricated their testimony because they

wanted the appellant behind bars and would stop at nothing to put

him there. We typically cede prosecutors some latitude in

responding to defense counsel's allegations of fabrication. See,

e.g., United States v. Mejia-Lozano, 829 F.2d 268, 274 (1st Cir.

1987). How much leeway should be accorded may well depend on the

circumstances (the prosecutor's statements would comprise an odd,

and perhaps dubious, argument if there were no charge of

fabrication or something of like nature). Even then, however, the

statements — though possibly questionable on other grounds — would

not amount to vouching.

There is dictum inimical to this view in United States v.

Auch, 187 F.3d 125, 131-32 (1st Cir. 1999), which was embraced in

United States v. Martínez-Medina, 279 F.3d 105, 119-20 (1st Cir.

2002). We disclaim that dictum. Auch, like United States v.

Sullivan, 85 F.3d 743, 750-51 (1st Cir. 1996), rests on an

understandable misreading of United States v. Manning, 23 F.3d 570,

572-73 (1st Cir. 1994). In Manning, this court condemned as

vouching a passage containing a similar argument — that a detective
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who testified for the prosecution would have told a more damaging

story had he been prone to fabricate — but the vouching label was

in fact directed only to the prosecutor's tail-end assertion that

government witnesses do not lie. Id. at 572. Because the

characterizations contained in Auch and Martínez-Medina are dictum,

this panel is not obliged to adhere to them. See Kosereis v. Rhode

Island, 331 F.3d 207, 213 (1st Cir. 2003). We are at liberty to

correct the misunderstanding and now do so. Those statements are

not good law.

V. MISCELLANEOUS EVIDENTIARY RULINGS

The appellant assigns error to a host of evidentiary

rulings. For the most part, we review a trial court's rulings

admitting or excluding evidence for abuse of discretion. Gomez v.

Rivera Rodriguez, 344 F.3d 103, 114 (1st Cir. 2003); Pendleton v.

City of Haverhill, 156 F.3d 57, 64 (1st Cir. 1998). This

deferential standard is not appellant-friendly. Here, moreover,

most of the disputed evidentiary rulings were not the subject of

contemporaneous objections at trial. Because those assigned errors

were not properly preserved, they face the even higher hurdle of

plain error review. See Duarte, 246 F.3d at 60 (describing the

methodology of plain error review). All the appellant's

evidentiary claims fail under one or the other of these tests.

Only two of them require comment.
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The appellant's contention that the district court

improperly denied him an opportunity to recross-examine police

officer Jorge Nazario implicates the Confrontation Clause. U.S.

Const. amend. VI. In the first instance, Confrontation Clause

challenges are reviewed de novo in order to verify that the trial

court afforded the defendant a reasonable opportunity to impeach

adverse witnesses. When that constitutional threshold is crossed,

we examine the trial court's restrictions on the manner and extent

of cross-examination for abuse of discretion. See United States v.

Balsam, 203 F.3d 72, 87 (1st Cir. 2000); United States v. Gomes,

177 F.3d 76, 80-81 (1st Cir. 1999).

It is crystal clear that the district court afforded the

appellant ample opportunity to confront Officer Nazario's testimony

about the Perez murder. It granted defense counsel a recess after

the conclusion of direct examination and did nothing to limit the

length of what proved to be a protracted (and skillfully conducted)

cross-examination. We need only ask, therefore, whether the denial

of recross-examination constituted an abuse of discretion. See

Balsam, 203 F.3d at 87. We conclude that it did not.

We need not tarry. The district court cited a valid

concern — the lack of new information on redirect — as the main

reason for its prohibition of recross-examination, and the record

attests to the accuracy of the court's perception. To cinch

matters, the prospect of redundancy was confirmed when the court,
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in an abundance of caution, allowed counsel to expound on the line

of questioning that he wished to pursue. Under the circumstances

of this case, there is no principled way that we can characterize

the denial of recross-examination as an abuse of discretion. After

all, a trial judge surely may limit cross-examination that will be

merely cumulative. See Delaware v. Van Arsdall, 475 U.S. 673, 679

(1986) (recognizing that trial judges retain wide latitude to

impose reasonable limits on cross-examination "that is repetitive

or only marginally relevant"); United States v. Boylan, 898 F.2d

230, 254 (1st Cir. 1990) (affirming trial judges' prerogative to

set appropriate boundaries so that litigants do not "run roughshod"

during cross-examination).

We also single out the appellant's objection to testimony

about a hearsay statement of an alleged coconspirator. During

direct examination, Irizarry testified that the appellant had shot

Jessi Quinones-Torres in the arm because of a longstanding drugrelated dispute. When asked how he knew this, Irizarry responded

that Quinones-Torres had told him about the incident. At this

point, the appellant raised a hearsay objection. Since the

evidence showed that Quinones-Torres was operating a drug point

within the scope of the master conspiracy, the district court

overruled the objection and provisionally admitted the statement

under Fed. R. Evid. 801(d)(2)(E).
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Evidence Rule 801(d)(2)(E) allows the introduction of a

statement made "by a coconspirator of a party during the course and

in furtherance of the conspiracy." When the government proffers

such evidence in a criminal case, it bears the burden of

establishing, by a preponderance of the evidence, "that a

conspiracy embracing both the declarant and the defendant existed,

and that the declarant uttered the statement during and in

furtherance of the conspiracy." Sepulveda, 15 F.3d at 1180. "If

these conditions are met and if there is corroboration in the form

of extrinsic evidence of the declarant's involvement in the

conspiracy, then the hearsay barrier is avoided and the statement

may be admitted." United States v. Bradshaw, 281 F.3d 278, 283

(1st Cir. 2002).

In Bradshaw, we noted that:

This court has constructed a model for the

handling of evidence proffered under Rule

801(d)(2)(E). That model authorizes the trial

court to admit conditionally alleged

coconspirator statements. At the close of all

the evidence, the court then makes a final

determination as to the admissibility of the

evidence. If the court ultimately concludes

that the provisionally admitted evidence does

not satisfy the applicable standard, it must

give a cautionary instruction to the jury, or,

upon an appropriate motion, declare a mistrial

if the instruction will not suffice to cure

any prejudice.

Id. (citations and internal quotation marks omitted). The trial

court's final determination is known in this circuit as a
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Petrozziello determination. See United States v. Petrozziello, 548

F.2d 20, 23 (1st Cir. 1977).

The appellant asserts that he interposed an objection to

the challenged testimony. That is true as far as it goes — but it

does not take him very far. The appellant neglected to renew this

objection at the close of all the evidence so as to obtain a

Petrozziello determination. That step is plainly required under

our precedents. See, e.g., United States v. Newton, 326 F.3d 253,

257 (1st Cir. 2003) (holding that preservation of a hearsay

objection to the admission of a coconspirator's statement

necessitates renewing the objection at the close of the evidence);

United States v. Woods, 210 F.3d 70, 78 (1st Cir. 2000) (same).

Thus, we review the admission of the challenged statement only for

plain error. Woods, 210 F.3d at 78. We descry none here.

VI. THE BOLSTERING CLAIM

The appellant maintains that the prosecution improperly

bolstered Irizarry's credibility when Ivan Lugo, an agent of the

Drug Enforcement Administration (DEA), testified as to both

Irizarry's confirmed reliability as an informant in an unrelated

investigation (involving the Tibes housing project gang) and the

methods that he (Lugo) employed to corroborate Irizarry's out-ofcourt statements regarding the murder of Saul Perez. Because the

parties disagree as to the appropriate standard of review, we start

there.
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To preserve a claim of error in the admission of

testimony, a party ordinarily must interpose a contemporaneous

objection to the question posed. See Fed. R. Evid. 103(a). But

lawyers are not required to be prescient. Consequently, they are

not required to object to proper questions in anticipation of

unresponsive or otherwise inappropriate answers. 21 Charles A.

Wright et al., Federal Practice and Procedure § 5037, at 187 (1st

ed. 1977 & Supp. 2003) (collecting cases). When a proper question

elicits an untoward reply, the failure to object to the question is

excused so long as the aggrieved party promptly moves to strike the

offending answer. See id. at 188-90.

On direct examination, Lugo testified that he had

attempted to corroborate most of the information provided by

Irizarry about the Tibes gang. Immediately after Lugo made this

statement, defense counsel lodged a bolstering objection. The

court correctly overruled the belated objection — both the question

("I ask you, after learning that information [about the existence

of several gangs], what, if anything, did you do?") and Lugo's

carefully circumscribed answer were proper.

Lugo's subsequent testimony was considerably more

problematic. Among other things, he professed his belief in the

accuracy of Irizarry's statements about the Tibes gang and

vouchsafed that there were "several other witnesses, several other

cooperating sources" who could corroborate Irizarry's testimony
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linking the appellant to La Cabra's organization. But the

appellant neither interposed any further objection nor moved to

strike these answers. Hence, our review is for plain error.

The impropriety of the last-mentioned testimony is

readily apparent. It is black-letter law that "prosecutors may not

place the prestige of the United States behind a witness by making

personal assurances about the credibility of a witness or by

indicating that facts not before the jury support the witness's

testimony." United States v. Rosario-Diaz, 202 F.3d 54, 65 (1st

Cir. 2000) (citing United States v. Neal, 36 F.3d 1190, 1207-08

(1st Cir. 1994)). It follows inexorably that the prosecution

cannot prop up a dubious witness by having a government agent place

the stature of his office behind the witness. Id. Although the

prosecution's success often depends on its ability to convince the

jury of a particular witness's credibility, it cannot entice the

jury to find guilt on the basis of a DEA agent's opinion of the

witness's veracity.

Lugo's testimony constitutes a flagrant breach of these

standards. It invited the jury to give weight to his belief that

Irizarry had told the truth during the investigation of the Tibes

gang. Equally as improper was Lugo's ipse dixit that "several

other witnesses" — none of whom were identified — had purportedly

corroborated Irizarry's testimony about the appellant's involvement

in Saul Perez's murder. In these ways, Lugo placed the prestige of
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his lengthy government service behind Irizarry's statements.

Furthermore, the reliance on "evidence" not before the jury

constituted an independent (and even more serious) lapse. See

Balsam, 203 F.3d at 88 (condemning a prosecutor's reliance on facts

outside the record to support a prosecution witness). The

challenged testimony was improper and never should have seen the

light of day. See, e.g., United States v. Martinez, 253 F.3d 251,

253-54 (6th Cir. 2001); Rosario-Diaz, 202 F.3d at 65-66. To make

a bad situation worse, this hardly seems to be an innocent lapse.

Lugo was a veteran DEA agent and had an obvious interest in

bolstering Irizarry's credibility.

Having found improper bolstering, we apply the test for

plain error. See Duarte, 246 F.3d at 60-62. The first two

requirements are easily satisfied: it was error of the most

glaring sort to place the challenged testimony before the jurors.

We proceed, then, to the third and fourth steps of the plain error

pavane.

The appellant emphasizes that Irizarry's credibility was

very important to the case against him and claims, on that basis,

that Lugo's ill-conceived testimony affected his substantial

rights. This claim fails for two principal reasons.

First, Irizarry's testimony was scarcely the sine qua non

of the government's case. The jury may well have based its verdict

on Officer Nazario's testimony. Nazario stated that he observed
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the appellant exchanging money with people on the street and

consorting with both Paquito — a confirmed member of the La Cabra

conspiracy — and Irizarry. Moreover, Nazario testified that he had

learned first-hand of the appellant's leadership position in the

drug conspiracy when the appellant apologized on behalf of an

underling who had left a used syringe in Nazario's backyard. This

testimony, in combination with other evidence, was potent enough to

prove the government's case.

Second, and perhaps more critical to our analysis, Lugo's

improper bolstering appears to have played a very modest role in

the unfolding drama of the trial. The prosecutor wisely refrained

from referring to that testimony during closing arguments and

reminded the jurors several times that it was their responsibility

to assess the credibility of the witnesses. The district court's

instructions sounded a similar theme. Viewed in this light, we

conclude that Lugo's bolstering, while deserving of reproof, did

not affect the appellant's substantial rights. Consequently, the

incident does not require vacation of the conviction.

VII. THE APPRENDI CLAIM

While the appellant's multi-pronged attack on his

conviction fails, his assault on his sentence has more bite. His

main argument is that the district court neglected to submit

critical questions involving drug type and quantity to the jury as

required by Apprendi, 530 U.S. at 490.
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We begin this phase of our analysis with a preliminary

question concerning the standard of review. The government argues

that plain error review is appropriate because the appellant

neither objected to the jury instructions (which omitted any

meaningful reference to drug type and quantity) nor requested a

special verdict form (which presumably would have required the jury

to determine drug type and quantity). The problem with this

argument is that it imputes to the defendant a nonexistent duty.

A party's obligation to object to an erroneous jury instruction

endures only to the extent that the instruction is inimical to his

cause. By like token, a party's obligation to object to the

court's eschewal of a special verdict form endures only to the

extent that the omission is inimical to his cause. The appellant

had no interest in ensuring his eligibility for a longer sentence,

and, thus, had no obligation to object here. In order to preserve

a claim of Apprendi error for appeal, it is enough that a defendant

offer a timely objection at sentencing to the imposition or

proposed imposition of a term that exceeds the applicable statutory

maximum. See United States v. Nelson-Rodriguez, 319 F.3d 12, 47

(1st Cir. 2003).

The appellant fulfilled this prerequisite. He broached

the Apprendi issue in his objections to the presentence

investigation report (PSI Report) and renewed those objections

during the disposition hearing. Consequently, the Apprendi claim
1That statute enumerates the penalties for, inter alia, the

distribution of one or more kilograms of heroin, five or more

kilograms of cocaine, and 50 or more grams of cocaine base. The

superseding indictment alleged the distribution of these same

amounts.

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was fully preserved and we will review it under the usual standard.

Plain error is not the benchmark here.

We turn next to the district court's sentencing

determination. The record makes manifest the district court's

reliance on the PSI Report. That report identified 21 U.S.C. §

841(b)(1)(A), which sets the maximum available punishment at life

imprisonment, as the relevant penalty provision.1 The district

court proceeded to apply the murder cross-reference, USSG

§2D1.1(d)(1), to arrive at a base offense level of 43. It then

determined that the appellant had assumed a supervisory role in the

charged conspiracy and added two levels. See id. §3B1.1(c).

Based on this total offense level (45) and the appellant's prior

criminal record (which placed him in criminal history category II),

life imprisonment became the only available sentencing option. See

id. Ch.5, Pt.A (sentencing table). The court imposed sentence

accordingly. Beyond the language of the indictment and the choice

of the applicable penalty provision, see supra note 1, there is

nothing in the record to suggest that the court made any

independent findings regarding the drug types and quantities

attributable either to the conspiracy as a whole or to the

appellant.
-24-

This methodology gives us pause. Apprendi's core

principle is that, "[o]ther than the fact of a prior conviction,

any fact that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt." 530 U.S. at 490. Apprendi does

not prohibit a sentencing court from making factual findings that

increase a defendant's sentence (including findings as to drug type

and quantity) as long as the sentence imposed is within the default

statutory maximum. See United States v. Caba, 241 F.3d 98, 101

(1st Cir. 2001). Nevertheless, drug type and quantity must be

determined by the jury before a defendant may receive a sentence in

excess of the default statutory maximum. Martínez-Medina, 279 F.3d

at 121-22.

In this case, the district court's determination that

the default statutory maximum encompassed life imprisonment removed

Apprendi from the decisional calculus. But that determination

depended upon the court's choice of 21 U.S.C. § 841(b)(1)(A) as the

applicable penalty provision (and, thus, the source of the

statutory maximum). This would have been a correct choice had the

jury found that the charged conspiracy involved the drug quantities

listed in that statutory provision and charged in the indictment —

but the jury made no such finding.

Where, as here, a defendant is accused of distributing

heroin, cocaine, and cocaine base in violation of 21 U.S.C. §
2Citing 21 U.S.C. § 841(b)(1)(D), the appellant urges us to

find that the default statutory maximum for purposes of this case

is five years. He is wrong: that is the default statutory maximum

for offenses involving marijuana. See Derman v. United States, 298

F.3d 34, 42 (1st Cir. 2002). Here, however, the superseding

indictment accused the appellant of conspiring to distribute

heroin, cocaine, and cocaine base — not marijuana.

-25-

841(a), the default statutory maximum derives from 21 U.S.C. §

841(b)(1)(C). See United States v. LaFreniere, 236 F.3d 41, 49

(1st Cir. 2001) (explaining that the catchall provision of section

841(b)(1)(C) contains the correct statutory maximum for substances

classified under Schedules I and II). That makes the default

statutory maximum 20 years.2 See United States v. Robinson, 241

F.3d 115, 118 (1st Cir. 2001). For this case to have triggered a

higher statutory maximum, the jury would have had to have found,

beyond a reasonable doubt, that the conspiracy was responsible for

the distribution of drugs in amounts at least equal to the

quantities described in 21 U.S.C. § 841(b)(1)(B) (e.g., 100 grams

of heroin, 500 grams of cocaine, or five grams of cocaine base).

And for the case to have triggered a statutory maximum extending to

life imprisonment, the jury would have had to have found, beyond a

reasonable doubt, that the conspiracy was responsible for the

distribution of drugs in amounts at least equal to the quantities

described in 21 U.S.C. § 841(b)(1)(A) (e.g., one kilogram of

heroin, five kilograms of cocaine, or 50 grams of cocaine base).

The jury's findings would be readily ascertainable if the

court had required it to complete and return a special verdict
-26-

form. See, e.g., United States v. Knight, 342 F.3d 697, 709 (7th

Cir. 2003). Here, however, the government did not suggest such a

course and no detailed questions were submitted to the jury. We

must therefore examine the indictment and jury instructions to

ascertain what findings can be ascribed to the jury. See, e.g.,

Soto-Beníquez, ___ F.3d at ___ [slip op. at 83-84]; NelsonRodriguez, 319 F.3d at 45.

The superseding indictment charged in pertinent part that

the appellant and his coconspirators

did, knowingly and intentionally, combine,

conspire, and agree with each other and with

divers other persons to the grand jury known

and unknown, to commit an offense against the

United States, to wit, to knowingly and

intentionally distribute multi-kilogram

quantities of controlled substances, that is

to say, in excess of one (1) kilogram of

heroin, a Schedule I Narcotic Drug Controlled

Substance, in excess of five (5) kilograms of

cocaine, a Schedule II Narcotic Drug

Controlled Substance, in excess of fifty (50)

grams of cocaine base, a Schedule II Narcotic

Drug Controlled Substance, as prohibited by

Title 21, United States Code, Section

841(a)(1).

By specifying drug types and quantities, the indictment laid the

appropriate groundwork; it put the appellant on notice that he

could face a life sentence. Without more, however, the language of

the indictment does not evince that the jury, by the naked act of

returning a guilty verdict, actually found the appellant

responsible for the described drug types and quantities. The jury

instructions must supply a proper linkage. See United States v.
-27-

Westmoreland, 240 F.3d 618, 633 (7th Cir. 2001) ("Apprendi requires

drug quantity — when it subjects a defendant to an enhanced

sentence — to be both charged in the indictment and submitted to

the jury.").

The jury instructions in this case did not supply that

linkage. They did not advise the jury that it must find the

defendant guilty beyond a reasonable doubt of conspiracy to

distribute, at a minimum, the drug types and quantities described

in the indictment. Indeed, the court only mentioned drug types and

quantities once during its charge:

Let's say something about the underlying

crime, which is possession of narcotics with

intent to distribute. In the indictment the

charge regarding controlled substances is that

this was a conspiracy to possess with intent

to distribute in excess of one kilo of heroin,

in excess of five kilos of cocaine, and in

excess of 50 grams of cocaine base, all

controlled substances under Schedule I or

Schedule II of the federal law, in violation

of Section 21 U.S. Code, Section

841(a)(1)(A)(1) [sic].

The government asserted at oral argument that this lone

reference, coupled with an unrelated instruction (that in order to

find the appellant guilty of conspiracy, the jury had to find

beyond a reasonable doubt that "the agreement specified in the

indictment . . . to possess with intent to distribute controlled

substances" actually existed), made the general verdict tantamount

to a sufficient jury finding of drug types and quantities. That is

too much of a stretch. Notwithstanding the government's artful
-28-

cutting and pasting, the jury instructions, read as a whole, did

not forge the necessary link: they omitted any connection between

(a) drug types and quantities, and (b) the requirement that these

facts be proven beyond a reasonable doubt. Absent either a special

verdict form or a suitably focused jury instruction (requiring a

finding beyond a reasonable doubt, that the appellant had knowingly

participated in a conspiracy to distribute one kilogram or more of

heroin, or five kilograms or more of cocaine, or 50 grams or more

of cocaine base), the verdict did not cure the potential Apprendi

problem. See Manual of Model Criminal Jury Instructions §

6.21.846A.1 at 490 (8th Cir. 2003) (explicating recommended jury

instructions for "Apprendi-Affected Conspiracy"); cf. Knight, 342

F.3d at 709 (recognizing the need to modify pattern jury

instructions for drug-trafficking cases in response to Apprendi).

The boilerplate verdict sheet, which directed the jury to find the

defendant guilty or not guilty "as charged in . . . the

Indictment," did not rectify this omission. See Nelson-Rodriguez,

319 F.3d at 45. Nor did the fact that the court sent a copy of the

indictment into the jury room. See Soto-Beníquez, ___ F.3d at ___

[slip op. at 83-84].

Because the issue of drug type and quantity was not

properly submitted to the jury, the statutory maximum remained at

20 years. See 21 U.S.C. § 841(b)(1)(C). In sentencing the

appellant to a term of imprisonment beyond that outer limit — life
-29-

— the district court committed an Apprendi error. See United

States v. Bailey, 270 F.3d 83, 88-89 (1st Cir. 2001).

The appellant argues, in his pro se supplemental brief,

that this Apprendi error is structural (and, thus, automatically

requires vacation of his sentence). Cf. Vasquez v. Hillery, 474

U.S. 254, 263-64 (1986) (granting habeas relief because systematic

exclusion of African-Americans from a grand jury constitutes

structural error). But the Apprendi error in this case — the

failure to submit the necessary drug type and quantity questions to

the jury — is not a structural error. An Apprendi error is not a

"defect affecting the framework within which the trial proceeds,"

but, rather, "simply an error in the trial process itself."

Arizona v. Fulminante, 499 U.S. 279, 310 (1991); cf. Sepulveda v.

United States, 330 F.3d 55, 60 (1st Cir. 2003) (declining to

characterize Apprendi as a watershed rule of criminal procedure for

retroactivity purposes). Accordingly, we join several of our

sister circuits in holding that the failure to submit appropriate

drug type and quantity questions to the jury does not constitute

structural error. See United States v. McDonald, 336 F.3d 734, 738

(8th Cir. 2003); United States v. Stewart, 306 F.3d 295, 319-23

(6th Cir. 2002); United States v. Carter, 300 F.3d 415, 428 (4th

Cir. 2002) (per curiam); United States v. Adkins, 274 F.3d 444, 454

(7th Cir. 2001); United States v. Vazquez, 271 F.3d 93, 103 (3d
-30-

Cir. 2001); United States v. Smith, 240 F.3d 927, 930 (11th Cir.

2001).

We turn next to the government's averment that the

sentence may stand because the Apprendi error did not affect the

appellant's substantial rights. This is a harmless error argument,

see Fed. R. Crim. P. 52(a), and the nature of the error determines

the appropriate test for harmlessness.

In the case of most non-structural errors, an error is

harmless (and, thus, does not affect substantial rights) if it can

be said with fair assurance that the error did not have a

substantial and injurious effect upon the verdict. See Kotteakos

v. United States, 328 U.S. 750, 764-65, 776 (1946); United States

v. Ladd, 885 F.2d 954, 957 (1st Cir. 1989). A different test

applies, however, when a non-structural error is of constitutional

dimension. In that event, the government must prove that the error

was harmless beyond a reasonable doubt, or, put another way, that

it can fairly be said beyond any reasonable doubt that the assigned

error did not contribute to the result of which the appellant

complains. Neder v. United States, 527 U.S. 1, 15 (1999); Chapman

v. California, 386 U.S. 18, 24 (1967). An Apprendi error is of

constitutional magnitude. See United States v. Nealy, 232 F.3d

825, 829-30 (11th Cir. 2000). Hence, we use the latter standard

here.
-31-

It is against this backdrop that we undertake wholerecord review. We pause first, however, to complete the legal

framework. Although it is true that we require a defendantspecific determination of drug quantity as a benchmark for

individualized sentencing under the guidelines, see United States

v. Bradley, 917 F.2d 601, 604 (1st Cir. 1990); USSG §1B1.3, the

statutory maximum in a drug conspiracy case derives from a

conspiracy-wide perspective:

[A] judge lawfully may determine the drug

quantity attributable to [a particular]

defendant and sentence him accordingly (so

long as the sentence falls within the

statutory maximum made applicable by the

jury's conspiracy-wide drug quantity

determination).

Derman v. United States, 298 F.3d 34, 43 (1st Cir. 2002); accord

Soto-Beníquez, ___ F.3d at ___ [slip op. at 89]; Nelson-Rodriguez,

319 F.3d at 46; see also United States v. Cotton, 535 U.S. 625,

633-34 (2002) (finding no plain error based on the Court's

appraisal of "[t]he evidence that the conspiracy involved at least

50 grams of cocaine base") (emphasis supplied). In drugtrafficking cases involving Apprendi errors, we sometimes have

treated the presence of "overwhelming evidence" of the requisite

drug types and quantities as a proxy for harmlessness. See SotoBeníquez, ___ F.3d at ___ [slip op. at 86]; Nelson-Rodriguez, 319

F.3d at 45-49; Bailey, 270 F.3d at 89. Under that formulation, an

error involving the failure to submit appropriate drug type and
3This rule applies in routine drug-trafficking cases (like the

case at hand). Cases in which the government has charged either

"death or serious bodily injury result[ing] from the use of [a

controlled substance]" or commission of the offense of conviction

"after a prior conviction for a felony drug offense has become

final," 21 U.S.C. § 841(b)(1), must be examined according to a

somewhat different paradigm.

-32-

quantity questions to the jury can be viewed as harmless if

overwhelming evidence adduced at trial shows that, during the time

frame described in the indictment, the conspiracy encompassed types

and quantities of drugs sufficient to trigger a statutory maximum

equal to or above the sentence actually imposed on the individual

defendant.3 In this case, then, the government has the burden of

showing harmlessness by pointing to overwhelming evidence that the

charged conspiracy distributed a minimum of one kilogram of heroin,

five kilograms of cocaine, or 50 grams of cocaine base (the

alternative quantities described in 21 U.S.C. § 841(b)(1)(A)).

The evidence here permits a reasonable inference that the

charged conspiracy engaged in large-scale drug trafficking. But

the government did not focus on the quantity issue and seems to

have dealt mainly in generalities. Given the tenuous nature of the

proof of drug weights, it would strain credulity to characterize as

"overwhelming" the evidence of drug quantity attributable to the

conspiracy as a whole.

As conceded by the government at oral argument, there

were only three times during the trial when actual drug quantities

were mentioned. First, Irizarry testified that in the fall of 1998
-33-

he bought "a quarter" of cocaine in Caguas for the appellant.

Second, Frankie Pietri Sepulveda testified that in the mid-1990s he

supplied La Cabra with "two or three or four kilos" of cocaine on

"several" occasions, amounting to a total of "more than 15"

kilograms of cocaine. Third, Lugo estimated, without elaboration,

that the drug ring distributed "over 150 kilograms of cocaine, over

1.5 kilograms of crack cocaine, and over a kilogram of heroin."

These references leave much to be desired. Irizarry's

colloquial description fails to specify an actual drug weight, and

it could be argued that Sepulveda's testimony is off point because

La Cabra may have used the described cocaine for purposes other

than to fuel the charged conspiracy. That leaves Lugo's testimony.

We do not believe that it can carry the day: Lugo failed to

provide any factual basis for his estimate and that omission

dilutes its probative value.

We have refused in the past to place blind reliance on

conclusory statements of drug quantity similar to Lugo's estimate,

see, e.g., United States v. Rivera-Maldonado, 194 F.3d 224, 228-30,

233 (1st Cir. 1999), and we see no reason to discard that cautious

policy today. Although lack of detail generally goes only to

weight, it is highly pertinent to a harmless error analysis — and

we are entitled to be chary about making a Chapman determination

based solely on the conclusory testimony of a non-participant. If

the government expects its witnesses' conclusions to be taken as
-34-

strongly probative, the least that it can do is to elicit a

sufficient factual foundation to support those conclusions.

These slim evidentiary pickings place this case at a

considerable remove from the cases in which courts have found

overwhelming evidence of drug type and quantity. Unlike most of

those cases, the instant case did not include testimony describing

quantities of drugs actually seized from coconspirators. See,

e.g., Knight, 342 F.3d at 712; United States v. Mendoza-Gonzalez,

318 F.3d 663, 674 (5th Cir. 2003); United States v. Anderson, 236

F.3d 427, 429-30 (8th Cir. 2001) (per curiam). Nor was this a case

in which the evidence tying the defendant to the charged conspiracy

involved drugs that were indisputably in excess of the requisite

amounts. See, e.g., Soto-Beníquez, ___ F.3d at ___ [slip op. at

88]; Nelson-Rodriguez, 319 F.3d at 48-51.

To be sure, the sketchiness of the evidence of drug type

and quantity does not undermine the conviction: the jury

appropriately could have found the appellant guilty of

participating in the charged conspiracy, with or without finding

that the venture involved trafficking on the scale required to

trigger the penalty provisions of 21 U.S.C. § 841(b)(1)(A). But

that is scant comfort for a Chapman harmlessness analysis. Even

though the evidence, taken in the light most favorable to the

government, would be enough to sustain a jury finding of the

threshold amounts, more is required to show harmlessness beyond a
4We mention this cross-reference for a reason. While our

resolution of the Apprendi issue renders it unnecessary for us to

rule on the remainder of the appellant's sentencing arguments, we

note that the district court failed to respond to an issue that the

appellant raised in his objections to the PSI Report vis-à-vis his

alleged involvement in the Perez murder. This failure to address

the appellant's objection was error. See Fed. R. Crim. P.

32(i)(3)(B). The court then proceeded to apply the murder crossreference without making an explicit finding (though perhaps one

might be implied) that the government had shown by a preponderance

of the evidence that the appellant bore responsibility for the

slaying. If, on remand, the sentencing court again chooses to

apply the cross-reference, it should take care to make a more

complete record of the basis for doing so.

-35-

reasonable doubt. Concluding, on this exiguous record, that the

proof constituted overwhelming evidence of the necessary threshold

amounts would be unreasonable. See Bailey, 270 F.3d at 89-90.

That ends our inquiry. Because the government has failed

to carry its burden of establishing that the Apprendi error was

harmless beyond a reasonable doubt, we vacate the appellant's

sentence and remand for resentencing within the parameters of 21

U.S.C. § 841(b)(1)(C). Even if the district court still sees fit

to apply the murder cross-reference found in USSG §2D1.1(d)(1) — a

matter on which we take no view4 — it may not increase the term of

imprisonment beyond a maximum of 20 years. See USSG §5G1.1(a)

("Where the statutorily authorized maximum sentence is less than

the minimum of the applicable guideline range, the statutorily

authorized maximum sentence shall be the guideline sentence.").
-36-

VIII. CONCLUSION

We need go no further. For the reasons elucidated above,

we affirm the appellant's conviction, vacate his sentence, and

remand for further proceedings consistent with this opinion.

Affirmed in part, vacated in part, and remanded.