Of the Northern District of California, sitting by *

designation.

United States Court of Appeals

For the First Circuit

No. 07-1982

UNITED STATES OF AMERICA,

Appellee,

v.

BENITO GRULLON, a/k/a QUICO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti B. Saris, U.S. District Judge]

Before

 Torruella and Boudin, Circuit Judges,

and Schwarzer, District Judge. *

Israel Arana for appellant.

Kirby A. Heller, Department of Justice, with whom Michael J.

Sullivan, United States Attorney, and Neil J. Gallagher, Assistant

United States Attorney, were on brief for appellee.

October 24, 2008
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BOUDIN, Circuit Judge. Benito Grullon was indicted for

conspiring to distribute cocaine, 21 U.S.C. § 846 (2000), and also

for distributing cocaine, 21 U.S.C. § 841(a)(1). He was convicted

on the conspiracy count; the distribution count was dismissed by

the district court without prejudice for pre-indictment delay. He

was sentenced to 63 months imprisonment and now appeals.

Grullon's first contention on appeal is that his motion

for judgment of acquittal should have been granted because the

evidence against him was insufficient. On such a claim, the trial

evidence is recounted in the light most favorable to the verdict.

United States v. Portela, 167 F.3d 687, 692 (1st Cir. 1999).

We address together both the sufficiency claim and related attacks

on the evidence itself.

Grullon appeared on the government's radar screen through

a controlled drug buy from a paid government informant, Fernando

Soto. Later, Grullon was identified on a Drug Enforcement

Administration wiretap as supplying drugs to his co-defendant

Manuel Germosen, as well as Germosen's brother, Christian Germosen.

At trial, the government offered two lines of evidence from

different sources to prove Grullon's involvement in a drug

conspiracy encompassing both the Soto sale and Germosen ring. 

 The first line stemmed from the DEA's authorized wiretap

of Manuel Germosen, part of a DEA investigation into what it

believed to be a cocaine organization operating in Lynn and
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Peabody, Massachusetts. The wiretap revealed Germosen engaging in

various conversations aimed at obtaining cocaine from different

sources and then selling the cocaine to others. Often, Manuel's

brother Christian, would assist with delivery of the cocaine and

the collection of money. 

The wiretap revealed that one of Manuel Germosen's

suppliers was a man referred to variously as Benito or "Quico."

Identification of this supplier was the second strand of evidence.

During the original, controlled drug buy on July 30, 2003, the

seller's phone number was given to Soto, who passed on to the DEA

both the phone number and the seller's license plate number, which

Soto had observed. Both were traced to Grullon. Further,

Germosen's phone calls to Benito and "Quico" were to the phone

number Grullon had provided to Soto. 

 Grullon says that three of the witnesses who testified

against him were unreliable: informant Soto and co-defendant Manuel

Germosen because they are career criminals, and Detective Edwards,

who worked the case for the DEA Task Force, because, inter alia,

tape recordings of the controlled drug buy were lost. Grullon also

says that his recorded conversations with Germosen do not involve

"drug talk" and thus prove nothing. 

If the jury accepted the witnesses' testimony, that

evidence together with the calls recorded on the wiretap amply

showed Grullon to be part of a drug conspiracy: specifically, that
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Manuel Germosen sought to purchase cocaine from Grullon to

replenish his diminished supply; that Manuel Germosen told his

brother to deliver proceeds of the sale of drugs to Grullon; and

that Christian Germosen obtained quantities of cocaine from

Grullon, which Christian would then sell to his own customers. In

addition, Manuel Germosen testified that Grullon had supplied him

drugs later sold to others. 

Many defendants are convicted solely on the basis of

testimony by criminal confederates. Their truthfulness, like the

weight to be placed on Edwards' testimony, was for the jury to

determine. United States v. Vázquez Guadalupe, 407 F.3d 492, 499

(1st Cir. 2005). In addition, here the recordings themselves were

available to the jury and Soto testified as to one of the

accomplished transactions. The jury could not be compelled to

convict but it would have been surprising if it had not done so.

Grullon's argument that the recorded conversations were

not "drug talk" was for the jury to resolve. Seemingly the

conversations recorded between him and Manuel Germosen consisted of

"code words," but Manuel Germosen testified to his perceived

meaning of those words. A "lay witness[] with . . . inside

knowledge [may] give [his] opinion[] as to the meanings of 'code

words' used by fellow conspirators in taped conversations" where

the testimony satisfies the requirements of Fed. R. Civ. P. 701.

United States v. Gaines, 170 F.3d 72, 77 (1st Cir. 1999). 
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Despite hints to the contrary in Grullon's brief,

substantial evidence indicated that he was the "Benito" supplying

drugs to the Germosen brothers. Manuel Germosen was calling

Grullon at the very phone number that Grullon had previously given

to Soto as Grulllon's own. Other internal evidence also pointed to

Grullon as "Benito." A Massachusetts state trooper, a native

Spanish speaker, testified that the voices attributed to Grullon on

the relevant calls were of the same person. 

Grullon's second major claim is that the July 30th drug

sale to Soto--even if showing Grullon to be a drug seller--was not

probative of the charged conspiracy involving the Germosen brothers

and should not have been allowed in evidence. Grullon may be

arguing that there was no evidence that the Germosens were involved

in the controlled buy, and thus the July 30th transaction was not

proof of the charged conspiracy, but was instead merely an

independent crime that would serve only to prejudice the jury. Or

he may be saying that the actual conspiracy was smaller than that

charged.

The jury heard testimony that during the time period of

the July 30th sale, Manuel Germosen was selling Grullon large

amounts of cocaine, which Grullon would then break up and sell to

others. So the jury could rationally infer that the July 30th sale

was part of the conspiracy either because Manuel Germosen had

directly supplied the drugs that were sold by Grullon or, at the
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very least, the proceeds of the sale were used by Grullon to

further the conspiracy (i.e. by enabling Grullon to buy more drugs

from Germosen). Cf. United States v. Drougas, 748 F.2d 8, 17 (1st

Cir. 1984).

The conspiracy may be unusual because Grullon alternated

between being both a supplier to and a buyer from the Germosens.

But the jury could infer from the evidence that the Soto

transaction was part of the larger conspiracy. This is enough to

get the Soto evidence to the jury, even if there were not other

arguments for relevance; and it permitted, even if it did not

require, the jury to conclude that the conspiracy in fact embraced

both the Soto sale and the transactions with Manuel Germosen. 

Grullon argues in the alternative that the July 30th sale

was barred as evidence because the transaction was the predicate

for the 841(a)(1) count (distribution) which was dismissed for

undue delay under the Speedy Trial Act, 18 U.S.C. § 3161 et seq.

(2000). Whether this bars the government's reliance on the

transaction as part of its conspiracy charge apparently presents an

issue of first impression in this circuit; but the text of the

statute, its purpose and the relevant precedents all weigh against

the defendant's position.

Under the Speedy Trial Act, the government must file an

indictment against a defendant "within thirty days from the date on

which such individual was arrested or served with a summons in
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connection with such charges." 18 U.S.C. § 3161(b). Where, as was

true with the § 841(a)(1) claim, the government fails to comply

with the time limit, 

such charge against that individual contained

in such complaint shall be dismissed [with or

without prejudice depending on certain

factors] or otherwise dropped. 

18 U.S.C. § 3162(a)(1)(emphasis added). See also United States v.

Rodriguez, 63 F.3d 1159, 1162 (1st Cir. 1995).

The language just quoted says only that the charge must

be dropped (and not necessarily with prejudice to a new charge

being filed). Whether or not the dismissal is with prejudice, the

statute says nothing about barring the institution of a new charge

for a different offense based on some or all of the underlying

transaction and certainly nothing about barring the use of

pertinent evidence of the dismissed charge so far as it might prove

the new charge. 

Purpose, as well as text, is unhelpful to Grullon. A

main aim of the timely indictment requirement is to "'ensure that

the defendant is not held under an arrest warrant for an excessive

period without receiving formal notice of the charge against which

he must prepare to defend himself.'" United States v. Meade, 110

F.3d 190, 200 (1st Cir. 1997) (quoting United States v. Berry, 90

F.3d 148, 151 (6th Cir. 1996)). Legislative history also suggests

a purpose to "reduc[e] defendants' opportunity to commit crimes

while on pretrial release and preventing extended pretrial delay
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from impairing the deterrent effect of punishment." Zedner v.

United States, 547 U.S. 489, 501 (2006) (citing H.R Rep. No. 93-

1508, at 8 (1974)).

Neither purpose is undercut by allowing the conduct of a

dismissed charge from being used as evidence of a different crime

where the government has conformed with the Act's strictures. The

inconvenience of reindictment, and the risk that this will not be

permitted, gives the government ample incentive to avoid delay.

And, by hypothesis, the new charge--in which the old transaction

may play some role--is not one that was unduly delayed under the

Speedy Trial Act.

There are two other issues warranting brief mention. The

first is a claim that various statements in the prosecutor's jury

summation were improper and prejudicial. The only statement to

which an objection was raised below was the prosecutor's

exhortation to the jury that they must "follow [their] oath ...

[and] find the defendant guilty . . . because it is the right thing

to do." Upon objection, the district judge told the jury to

disregard the statement. 

Although the statement is fairly tame, we have previously

told prosecutors not to use such language, primarily because it can

shift the emphasis from whether the evidence establishes guilt to

other possible concerns (such as whether the defendant is a

dangerous man whose jailing would be a good thing for the
Grullon also raises for the first time on appeal objections 1

to a couple of factual misstatements in the prosecutor's closing

remarks. These errors are even tamer than the statement just

discussed and fall well short of meeting the plain error standard

for reversal applicable where no timely objection was made. See,

e.g., United States v. Van Anh, 523 F.3d 43, 55 (1st Cir. 2008).

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community). See United States v. Mandelbaum, 803 F.2d 42, 44 (1st

Cir. 1986). Yet such comments, save in unusual circumstances,

warrant reversal only where prejudice occurred and, given the

curative instruction and the weighty evidence against Grullon, the

result was not due to this misstep by the prosecutor. 

1

Grullon also presses his argument raised below that the

district judge should have declared a mistrial because certain

"extraneous" material--namely a joke printed from a website making

fun of the legal profession--was found in the jury room after a

verdict was returned. The joke, entitled "Sharks and Lawyers--A

Comparative Study," disparaged lawyers in a variety of ways. 

The denial of a mistrial by the trial judge based on

juror misconduct is likely to be reversed only where there is a

"patent abuse of discretion." United States v. Hunnewell, 891 F.2d

955, 961 (1st Cir. 1989). Here, the lawyer joke posed no real

danger of prejudicing the jury against the defendant, having

nothing to do with the issues in the case or any more connection

with one side's counsel than the other's. See United States v.

Boylan, 898 F.2d 230, 261 (1st Cir. 1990)(extraneous material "did
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not refer to the case, the trial, the defendants, or their

activities").

Nor was the judge required to hold an evidentiary hearing

to explore the subjective reactions of the jurors. Whether to hold

such a hearing depends on a practical estimate--particularly

whether it is likely to serve any useful purpose. Here, there was

no such likelihood, absent which there are affirmative reasons to

avoid questioning jurors about their thinking. See, e.g., Neron v.

Tierney, 841 F.2d 1197, 1205 (1st Cir. 1988) ("[C]ourts generally

should be hesitant [] to haul jurors in after they have reached a

verdict . . . to probe for potential instances of bias, misconduct,

or extraneous influences.") (internal quotation omitted). So there

was no error at all, let alone a patent abuse of discretion.

The remainder of Grullon's objections are to the voice

identification by the state trooper and to the fact that at

sentencing the drug quantity was found by the trial judge by a

preponderance of the evidence. These claims are without merit and

we mention them only to show that they have not been overlooked.

Affirmed.