*Of the District of Massachusetts, sitting by designation.



# United Stat es Court of Appeals

For the First C ircuit

No. 00-1711 UNITED STATES OF AMERICA, Appellee,

v. PEDRO DE JESUS MATEO, Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. George A. O'Toole, Jr., * U.S. District Judge ]

Before Boudin, Chief Judge , Lipez and Howard, Circuit Judges .

Raymond Sanchez Maceira for appellant. Thomas F. Klumper , Assistant United States Attorney, with whom H.S. Garcia , United States Attorney, and Sonia I. Torres-Pabón , Assistant United States Attorney, were on brief, for appellee.

June 24, 2004-2- HOWARD, CircuitJudge . Pedro De Jesus Mateo appeals his conviction for conspiring to possess narcotics with the intent to distribute and the resulting sentence impos ed. We affirm the judgment. I. Background

In t he late 1980's, De Jesus befriended Orlando Rosa Rodriguez in Ponce, Puerto Rico. In the beginning of 1990 , Ros a began a drug trafficking organization operating in the Belgica Ward of Ponce. During the fall of 1990, Ro sa ex panded the enterprise andmoved it to the Portugues Public Housing Project in Ponce. By the end of 1990, De Jesus was working for Rosa, processing heroin and cocaine and helping procure additional drug supply. In early 1992, Rosa gave De Jesus control of a marijuana "drug point" in the Portugues Housing Project.

In 199 5, Rosa was incarcerated for drug offenses but continuedto operate the enterprise from prison. Rosa left two

asso ciates in charge of the operation. These associates w er e delinquent in collecting money, so Rosa replaced them with his sister and De Jesus. In this capacity, De Jesus collected delinquent debts, processed heroin, and operated the heroin "drug point." For his services, Rosa paid De Jesus $200 per week. De Jesus eventually withdrew from the organization in the fall of 1997.-3- On these f acts , a jury convicted De Jesus of participating in a conspiracy to possess cocaine and h eroin with the intent to distribute operating in Ponce from 1990 through the fall of 1997. See 21 U. S.C. §§ 841 (a)(1) & 846. The district court sentenced De Jesus to l ife in prison because this was his thirdconviction for a drug-related felony. See 21 U.S.C. § 841(b)(1)(A). II. Discussion

De Jesus raises two issues on appeal. First, he claims that the district court erred by declining to order a mistrial after Rosa provided testimony implicating him in criminal acts that

were beyond the scope of the conspiracy. Second, he contends that the district court erroneously relied on his two prior drug convictions to imp ose an enhanced sentence under 21 U.S.C. § 841(b)(1)(A) because the prior convictions comprised conduct that was part of the instant conspiracy offense.

A. Mistrial De Jesus identifies three points in Rosa's testimony where Rosa improperly implicated him in criminal conduct that was outside of the conspiracy. First, Rosa testified about his own involvement in a 1990 murder. Defense counsel objected that Rosa implicatedDe Jesus in the murder by gesturing toward De Jesus when discussing the crime. The district court responded by instructing Rosa to confine his answers to his own criminal conduct, but1 There is some confusion in the record concerning whether this

statement was made by Rosa or the prosecutor. De Jesus claims that the statement was made by Rosa and there is substantial record support for that view. We therefore have considered the claim in this light. But even if the prosecutor had made the statement, our conclusion would remain the same because, as discussed in the text, the district court's curative instructions sufficiently remedied any prejudice. See infra at 6-7.

2 Th e court ruled that this testimony concerned an act that was within the scope of the conspiracy and would normally be admissible. B ut, be cause the government had filed a pretrial notice representing that this evidence would not be introduced in its case-in-chief, the court struck the testimony. -4- defense counsel, not satisfied, moved for a mistrial. The court deniedthe motion, noting that it "did n ot see a gesture as dramatic as the one described," and that it was not as "clear or unambiguous [as defense counsel] may have suggested."

Second, Rosa testified that De J esus worked packaging drugs. Rosa then stated, "In 1991 he was in prison." 1 D efen se

counse l ob jected, and the district court struck the comment. Finally, Rosa testified about h is last drug transaction with De Jesus. Rosa stated that he had asked De Jesus to help him obtain drugs while he (Rosa) was in prison. Defense counsel objected to this testimony because this act was outside the scope of the conspiracyand requested a mistrial. The court again struck the testimony but declined to order a mistrial. 2

De Jesus contends that, indi vidu ally and combined, the effect of this improper testimony was so prejudicial that a mistrial was warranted. We review the district court's decision to-5-

de ny a mistrial motion for an abuse of discretion. See United States v. Bradshaw , 281 F.3d 278, 284 (1st Cir. 2002). A mistrial i s a last resort that is only ordered if the demonstrated har m cannot be cured by less dra stic means. See United States v. Rullan-Rivera , 60 F.3d 16, 18 (1st Cir. 1995).

De Jesus focuses substantial attention on Rosa's "gesture" supposedly implicating him in a 1990 murder. Testimony clearlyimplicating De Jesus in a murder outside of the charged conspiracy could be thought to have caused substantial prejudice. The difficulty with this argumen t, how ever, is that the district court found that Rosa's ges ture w as neither as "dramatic" nor "unambiguous" as De Jesus suggests. "The trial court has a superior point of vantage" and "it is only rarely--and in extremely compelling circumstances--that an appellate panel, infor med by a coldrecord, w ill ve nture to reverse a trial judge's on-the-spot decision." United States v. Freeman , 208 F.3d 332, 339 (1st Cir. 2000) (internal cita tions and quotations omitted). Neither De Jesus's brief nor our own review of the record provides a basis for disregarding the district court's view of events and its conclusion that De Jesus wa s n ot substantially prejudiced by the incident. See United States v. Pierro , 32 F.3d 611, 617 (1st Cir. 1994) ("[B]attles over the need for a mistrial most often will be won or lost in the district court").-6- For Rosa's two inadmissible comments, the district court providedprompt and forceful curative instructio ns. Immediately after Rosa' s comment, "He was in prison in 1991," the court told the jury "to disregard the answer." Similarly, just after Rosa describedDe Jesus arranging to bring him drugs in prison, the court instructed, "Jurors, the witness's evidence from the last few questions concerning what he described as a transaction when he was in prison, all that evidence is stricken, and you will disregard it in your decision in this case." Also as part of its final instructions, the district court reminded the jurors to disregard stricken testimony:

There was at least one and maybe several occasions on which an answer or a portion of an a nswe r may have been given by a witness, and it was excluded from the evidence. You m ay recall that I did that. Evidence t hat I ordered to be stricken, you are to disregard and put out of your minds. It is not part of your consideration and may not be the subject of your discussion in the jury room. With in wid e margins, the prejudice caused by improper testimonycan be addressed by providing appropriate cu rati ve instructions similar to thos e sup plied here. See United States v. Sepú lve da , 15 F.3d 1161, 1184 (1st Cir. 1993). This rule is a corollaryof the presumption tha t " juries follow instructions" unless the re is "a sufficient showing that the offending testimony reasonablycould not have been ignored and that seriou s p rejudice-7-

likelyresulted." United States v. Gonzalez-Vazquez , 219 F. 3d 37, 48 (1st Cir. 2000) (quotations omitted). De Jesus has not made this showing. The statement, "He was in prison," provided the jury with little detail, and it is not altogether clear that it referred to De Jesus, as Rosa blurted out the statement when there was no question pending. Further, R o sa's testimony concerning the later transaction in which De Jesus brought drugs to Rosa in prison, also excluded by the court with a curative instruction, constituted additional evidence concerning De Jesus's work in furtherin g t he conspiracy. See Bradshaw , 281 F.3d at 2 85 (a ffirming denial of motion for mistrial where inadmissible evidence was largely cumulative).

Finally, the st ron g proof of De Jesus's guilt militates against disturbing the district court's decision against declari n g

a mistrial. S ee United States v. DiSanto , 86 F.3d 1238, 1249 (1st Cir. 1996) (affirming denial of mistrial motion because evidence was strong); United States v. Belardo-Quiñones , 71 F.3d94 1, 945 (1st Cir. 199 5) (similar); United States v. Bello-Pérez , 977 F.2d 664, 672 (1st Cir. 1992) (sim ila r). The government presented testimony fromRosa and his sister chr onicl ing De Jesus's involvement in the conspiracy, an aud io ta pe recording of De Jesus arranging a drug transaction and dis cussing a debt that one of the co-conspirators owedRosa, and an other tape recording of two co-conspirators discussing that De Jesus w as no longer going to work for Rosa. De-8-

Jesus's entire case consisted of calling Rosa to question his credibility. In short, this was not a close case. F or these reasons, the district court's de nial of De Jesus's motion for a mistrial was not an abuse of discretion.

B. Sentencing The district court sentenced D e Jesu s to a life sentence pursuant to the sentencing enhancement provisions of 21 U.S.C. § 84 1(b)( 1)(A). In relevant part, this section provides that if a person is convicted of conspiring to possess in excess of a certain amount of controlled substance with the intent to distribute "after two or more prior convictions for f elony drug offenses have become final, such person shall be sentenc ed to a m andatory term of life imprisonment without release." 21 U.S.C. § 841(b)(1)(A). De Jesus

was convicted in Puerto Rico Superior Court of possessing cocaine in Janu ary 1991 and of possessing marijuana with the intent to distribute in November 1991. Both crimes occurred in Po nce a nd there is no dispute that they constitute felonies under Puerto Rico law. De Jesus claims that these prior convictions sho uld not count for purposes of applying the sentenc ing en hancement under 21 U.S.C. § 841( b)(1)(A). He argues that, because the prior convictions occurred during th e t ime period and in the geographic location of the conspiracy charged in this case, the prior convictions represent "the same criminal conduct" as the conspiracy-9-

conviction and c onsequently "should not count toward the enhancement."

De Jesus makes this argument by asserting that, under the Sentencing Guidelines, all three convictions (the two p r ior convictions and the conspiracy conviction) would be groupedtogther

as rela ted cases pursuant to U.S.S.G. § 4A1.2 and therefore should not count as separate convictions for purposes of applying 21 U.S.C. § 841(b)(1)( A). This argument misconstrues the purpose of the Sentencing Guidelines. The Guidelines f ocu s on the length and natu re of the sentence, not the fact of conviction. Whether prior convictions count for purposes of 21 U.S.C. § 84 1(b)(1)(A) is a matter of statutory c ons truction, not Guideline application. See UnitedStates v. Blackwood , 913 F.2d 139, 145 n.4 ( 4th Cir. 1990);

see als o United States v. Maxey , 989 F.2d 303, 307-08 (9th Ci r . 1993) (rejecting similar argument). Indeed, the Guidel i nes specificallyprovide that statutorily requ ire d minimum sentences must be ap plied in lieu of the Guideline range if the statutory minimum is longer. See U.S.S.G. § 5G1.1.

But that the Gu idelines do not provide the analytical vehicle for resolving De Jesus's a rgume nt does not end the matter. "Prior felony drug convictions will be co unted separately for purposes of 21 U.S.C. § 841(b) only when they repre sent distinct criminal episodes." United States v. Martinez-Medina , 279 F.3d 105, 123 (1st Cir. 2002) (citing United States v. Gillies , 851 F.2d 492,-10-

497 (1st Cir. 1988)). De Jesus contends that his prior convictions do not represent "distinct criminal episodes" because they are part andparcel of his par ticipation in the conspiracy. Circuit precedent forecloses this argument. See Ma rtinez-Medina , 279 F.3d at 123. In Martinez-Medina , we stated that:

An ongoing course of criminal conduct such as narcotics trafficking may involve many such criminal episodes, each a discrete occurrence. The fact that all are relat ed, par t of a series, or part of a continuous co urs e of criminal dealing, does not necessarily render them a "single" criminal episode, particularly where the episodes occur over time. To so holdwould insulate the very career criminals the statute is designed to reach--those continuously engaged in criminal conduct. Id. (quoting Maxey , 989 F.2d at 307). Consequently, we hel d tha t the district court properly imposed a life sentence under 21 U.S.C. § 841(b)(1)(A) because the def e ndant's prior convictions, although part of one drug trafficking c ons piracy, stemmed from several transactions, occurring several months apart. See id. So too here. De Jesus's prior convictions were for separat e drug transactions that occurred eleven months apart. See id. ; see also United States

v. Gray , 152 F.3d 816 , 821-22 (8th Cir. 1998) (stating that drug transactions occurring one-day apart wh ich required separate planning a n d execution constitute distinct criminal episodes under 21 U.S.C. § 841(b)(1)(A)) ; Unit ed States v. Griffin , 109 F.3d 706, 708 (11th Cir. 1997) ("Two drug transactions occurring on different3 De Jesus attempts to distinguish Martinez-Medina on the basis

that the government presentedevidence of marijuana trafficking in the instant case which was the same conduct underlying De Jesus's prior mar ijuana conviction. As explained in the text, MartinezMedina holds that each conviction arising from a distinct criminal episode counts as a separate conviction for purposes of 21 U.S.C. § 841(b)(1)(A) even though this same conduct is within the scope of the conspiracy. See supra at 10. The dispositive point here is not that evidence of De Jesus distributing marijuana was presented at his conspiracy trial but rather that his pr ior cocaine conviction was a separate criminal episode fromhis prior marijuana conviction even though the conduct underlying both convictions was argua blypart of the same conspiracy

. As for any claim that the conspiracycomprised the same episode as either of the two prior convictions, the short answer is that the conviction in this case w as for conspiring to distribute heroin and cocaine, an epis od e continuing well beyond either of the prior convictions for discrete episodes of possession and distribution. -11- days--albeit within the same week and in the same general location-- constitute separate unrela ted o ffenses for purposes of sentencing under 21 U.S.C. § 84 1(b)(1) (A)."). Accordingly, the district court correctlycounted them a s p rior convictions for purposes of 21 U.S.C. § 841(b)(1)(A). 3

Affirmed .