
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No. 93-2246                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  LUIS A. SANTIAGO,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                   [Hon. Hector M. Laffitte,* U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Selya, Circuit Judge,                                       _____________                            Aldrich, Senior Circuit Judge,                                     ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________               George F. Gormley, with  whom John D. Colucci and  Gormley &               _________________             _______________      _________          Colucci, P.C. were on brief, for appellant.          _____________               Luis A. Santiago on supplemental brief pro se.               ________________               Helene  Kazanjian,  Assistant United  States  Attorney, with               _________________          whom Jay  P. McCloskey, United  States Attorney, and  Jonathan R.               _________________                                ___________          Chapman,  Assistant United  States Attorney,  were on  brief, for          _______          appellee.                                 ____________________                                     May 1, 1996                                 ____________________          *Of the District of Puerto Rico, sitting by designation.                    SELYA, Circuit  Judge.  A jury empaneled  in the United                    SELYA, Circuit  Judge.                           ______________          States District Court for the  District of Maine found defendant-          appellant Luis A. Santiago guilty of a single count of conspiracy          to  possess and  distribute  heroin, 21  U.S.C.    846,  and  the          district  court sentenced him as a career offender.  Santiago now          challenges his conviction and sentence.  We affirm.                                          I.                                          I.                                          __                                      Background                                      Background                                      __________                    We  limn the facts in  the light most  congenial to the          verdict,  consistent  with record  support.    See, e.g.,  United                                                         ___  ____   ______          States v. Maraj, 947 F.2d 520, 522 (1st Cir. 1991).          ______    _____                    The overarching conspiracy  that the government charged          in the indictment  and attempted to  portray at trial  pirouetted          around Wilfredo  Figueroa, a Lawrence, Massachusetts drug dealer.          Figueroa began his career as a  purveyor of cocaine.  In 1991, he          shifted his  attention to heroin.   He soon built up  a roster of          approximately  fifteen clients,  all from  Maine.   In  a typical          transaction  a client  would call  Figueroa from  Maine, order  a          certain  quantity of heroin, and then sojourn to Lawrence to take          delivery.    Occasionally a  client  would  appear on  Figueroa's          doorstep   without  any   prearrangement,   and  Figueroa   would          improvise.                    In  effect, Figueroa acted  as a  middleman (or  so the          jury could have found).   From October 1991  forward, he had  two          suppliers:  Angel  Soto and the  appellant.  Figueroa  patronized          Soto as his principal  supply source but turned to  the appellant                                          2          whenever  Soto could  not fill  an order.   Furthermore,  some of          Figueroa's  clients  preferred the  "brand"  of  heroin that  the          appellant carried,  and Figueroa invariably used  Santiago as his          source of supply whenever a client ordered that brand.1                    When  Figueroa asked  for  heroin, the  appellant would          either  deliver  the  drugs   personally  or  arrange  for  their          delivery.    All  the  deliveries took  place  in  Massachusetts.          Figueroa (who cooperated with the government and testified at the          trial)  stated  that he  purchased an  average  of fifty  bags of          heroin a day from the appellant  at $15 apiece, often on  credit.          Although the appellant claims that he never met any of the retail          customers,  the government  presented evidence  that contradicted          this   assertion;  and,  moreover,  Figueroa  testified  that  he          informed the  appellant  that all  his clients  were coming  from          Maine to Massachusetts to buy heroin.                    Figueroa's  involvement in  the drug  trade followed  a          hallowed family  tradition.   His uncle, Roberto  Figueroa, dealt          drugs in Maine.  Blood may be thicker than water, but it is by no          means  thicker  than self-interest.    When lawmen  closed  in on          Roberto Figueroa's operation he threw his nephew to the wolves in          hopes of mitigating his own punishment.   To help set the  snare,          Roberto  ordered 130 bags of heroin from his compliant nephew and          demanded delivery in  Maine.   The appellant sold  fifty bags  of                                        ____________________               1Santiago  (who  wrapped  individual  doses  of   heroin  in          plastic)  and Soto (who used paper  bags) packaged their products          differently.   Clients identified their preference  for one brand          over another by reference to the packaging.                                          3          heroin to Figueroa and  Soto supplied the remainder.   On January          15, 1992, Figueroa  and Soto  exchanged the drugs  for cash at  a          designated  rest  area  alongside  the Maine  Turnpike  and  were          promptly arrested.  The  authorities apprehended the appellant in          Massachusetts and, without objection,   removed him to Maine  for          trial.   He  was  convicted and  sentenced in  due course.   This          appeal ensued.                                         II.                                         II.                                         ___                                       Analysis                                       Analysis                                       ________                                          A.                                          A.                                          __                             Sufficiency of the Evidence                             Sufficiency of the Evidence                             ___________________________                    The appellant   who is represented by fresh  counsel on          appeal     argues  that  the  government  presented  insufficient          evidence  to justify a conviction.   Since the  appellant did not          preserve  a  sufficiency  challenge  by moving  for  judgment  of          acquittal at the close of all the evidence, see Fed.  R. Crim. P.                                                      ___          29, our  review is limited  to the prevention of  clear and gross          injustice.   See United States v.  Taylor, 54 F.3d  967, 975 (1st                       ___ _____________     ______          Cir.  1995); United  States v. McDowell,  918 F.2d  1004, 1009-10                       ______________    ________          (1st Cir. 1990).                    To  determine a  sufficiency challenge,  we customarily          inquire  whether the evidence, taken  in the light most favorable          to the government   a perspective that requires us to draw  every          plausible inference in line with the verdict and to resolve every          credibility conflict in the  same fashion   permitted  a rational          jury  to find each essential element of the offense of conviction                                          4          to have been proven beyond a reasonable doubt.  See United States                                                          ___ _____________          v. Olbres,  61 F.3d 967, 970 (1st Cir.), cert. denied, 116 S. Ct.             ______                                _____ ______          522 (1995); Maraj, 947 F.2d at  522-23.  In a conspiracy case, as                      _____          in virtually  any other  criminal case,  the government can  meet          this  burden by either  direct or circumstantial  evidence, or by          any  combination thereof.   See  United States v.  Echeverri, 982                                      ___  _____________     _________          F.2d 675, 679 (1st Cir.  1993); United States v. David,  940 F.2d                                          _____________    _____          722, 735 (1st Cir. 1991), cert. denied, 502 U.S. 1046 (1992).                                     _____ ______                    The  appellant's sufficiency  challenge  is lacking  in          merit.  Under the statute of conviction, 21 U.S.C.    846, it was          incumbent  upon the  government to  establish that  the appellant          agreed with Figueroa (and,  according to the indictment, possibly          "other  persons"), at  least tacitly,  to commit  the substantive          crime     heroin  distribution,  see  21  U.S.C.     841(a)(1)  &                                           ___          (b)(1)(C)    which constituted the object of their agreement, and          that he  thereafter participated in the  conspiracy knowingly and          voluntarily.   See Echeverri, 982  F.2d at 679.   The record here                         ___ _________          satisfies those criteria.                    To  be sure,  the appellant  makes an  impassioned plea          that the evidence shows no  more than a buyer-seller relationship          between  him  and  Figueroa.   We  agree  with  the premise  that          underlies this  plea:  a buyer-seller  relationship, simpliciter,          is an insufficient predicate for a finding that the buyer and the          seller are guilty as coconspirators.  See, e.g., United States v.                            _________________   ___  ____  _____________          Mancari, 875 F.2d 103, 105 (7th Cir. 1989) (holding that the sale          _______          of drugs  in small  quantities is inadequate,  without additional                                          5          evidence, to support a finding of conspiracy to distribute  drugs          to others because  the seller could reasonably  believe that such          purchases  are intended for the  buyer's personal use).   But the          premise provides the  appellant no  safe harbor on  the facts  of          this case.   While a scenario in which  A sells to B (who resells          to C, D,  E, and F) may signify that A  and B are related only as          vendor  and vendee, such a  scenario may also  signify a broader,          more imbricated relationship.  See, e.g., United States v. Moran,                                         ___  ____  _____________    _____          984 F.2d 1299, 1303 (1st Cir. 1993).  Knowledge and intent are at          the core of  the issue.   Thus, the  question in such  a case  is          whether the evidence surrounding the transaction(s) is sufficient          to allow a fairminded jury to find beyond a reasonable doubt that          A knew that B was reselling the drugs, and intended to facilitate          the resales.  See id.                        ___ ___                    The evidence here, taken in the light most congenial to          the verdict,  establishes that the relationship  between Figueroa          and Santiago contained  enough elements  of "[c]ommon  knowledge,          interdependence, [and] shared purpose," id., to support a finding                                                  ___          that  they  were coconspirators.    Figueroa  testified that  the          appellant had  actual knowledge of  the follow-on sales  to Maine          residents.   Two  of  Figueroa's customers  testified that  on at          least one occasion  the appellant  made a delivery  of heroin  to          Figueroa's home and met some of his clients.                    The foregoing testimony  was amply corroborated by  the          circumstantial evidence.  The appellant sold  Figueroa quantities          of drugs  (fifty bags per  day) well beyond  the outer limits  of                                          6          personal  use amounts and packaged them in a manner suggestive of          intended  resale.    The  regularity  of  the  transactions,  the          quantities  of heroin,  the  amounts of  money involved,  and the          financial  terms (especially the  appellant's extension of credit          to Figueroa),  taken  together, form  a sturdy  foundation for  a          finding  that the  appellant and  Figueroa had  at least  a tacit          agreement  to distribute the heroin to third parties.  Since they          acted  upon that  tacit  agreement (or  so  the jury  could  have          found), the appellant's conviction is sustainable by any measure.          Surely, it does not work an injustice.2                                          B.                                          B.                                          __                                        Venue                                        Venue                                        _____                    The  appellant next  asserts that  he was  tried  in an          improper venue because he never committed a crime in the District          of  Maine.   This assertion  is baseless.   It is  settled beyond          peradventure  that  venue is  a personal  privilege which  can be          waived.   See Fed.  R. Crim. P.  18; see also  Charles A. Wright,                    ___                        ___ ____          Federal Practice  and Procedure   306  (2d ed. 1982).   Here, the          _______________________________          appellant  consented to  his removal  and to  the holding  of the          proceedings in Maine.   He submitted to trial there  without ever          contesting venue.  He has, therefore, waived the right to raise a                                        ____________________               2The appellant also claims  that the evidence fails to  show          that he  conspired to distribute the  drugs in Maine.   We reject                                                      ________          this  claim for the reasons  discussed in Part  II(B), infra, and                                                                 _____          for  the  added  reason  that  the  indictment  charges   a  drug          distribution conspiracy that took place in "Maine, Massachusetts,          and elsewhere," unanchored to a single locale.                                          7          venue-based challenge  to his conviction.3  See  United States v.                                                      ___  _____________          Cordero, 668 F.2d  32, 44-45  (1st Cir. 1981);  see also Fed.  R.          _______                                         ___ ____          Crim.  P. 12(b)(2) (mandating waiver of  most defenses that could          have been, but were not, raised prior to trial).                    In all events, the  argument fails on the merits.   The          venue  requirement is  designed to  prevent a  criminal defendant          from having to defend himself  in a place that has  no meaningful          connection to the  offense with which he is charged.   This court          held in United  States v. Uribe,  890 F.2d 554  (1st Cir.  1989),                  ______________    _____          that  in a  conspiracy case  venue is  proper in any  district in          which an act in  furtherance of the charged conspiracy  has taken          place,  even  if  a  particular  coconspirator  was  not  himself          physically  present  in that  district.   See  id. at  558.   The                                                    ___  ___          actuation  of a  drug distribution  conspiracy culminates  in the          sale and delivery of  the controlled substance.  Thus,  any place          in which the culmination  occurs provides a lawful venue  for the          prosecution of the offense.  See id.                                       ___ ___                    In  this  instance,  the conspirators  distributed  the          heroin  to Maine  residents knowing that  it would  be introduced          into Maine and consumed there for the most part.  Moreover, on at          least one occasion the  appellant's cohort, Figueroa,  personally          delivered  heroin  to   a  Maine  locus  in  furtherance  of  the                                        ____________________               3The appellant's attempt to blunt this waiver by citing  the          alleged ineffectiveness of his  trial counsel is unavailing.   We          have  consistently  held    and  today  reaffirm    that,  absent          exceptional   circumstances  (not  now   present),  a   claim  of          ineffective assistance of counsel  cannot debut on direct appeal.          See  United States  v. Mala,  7 F.3d 1058,  1063 (1st  Cir. 1993)          ___  _____________     ____          (collecting cases), cert. denied, 114 S. Ct. 1839 (1994).                              _____ ______                                          8          conspiracy (or so the jury could have found).  This single, overt          act, taking place in Maine, is itself sufficient to sustain venue          in the District  of Maine.  See id. at  558-59; Cordero, 668 F.2d                                      ___ ___             _______          at 43.                                          C.                                          C.                                          __                                       Variance                                       Variance                                       ________                    The appellant claims a prejudicial variance between the          indictment  and  the  proof,  and  also  claims  that  there  was          injurious spillover  from  certain evidence  regarding  a  second          conspiracy  (of  which  he was  not  a  member).   Because  these          exhortations  are raised for the  first time on  appeal we review          them only for plain error.   See United States v. Arcadipane,  41                                       ___ _____________    __________          F.3d 1, 6 (1st  Cir. 1994).  A close look assures  us that, under          the  jurisprudence of  plain error,  neither allegation  requires          reversal.                    We start  by addressing the allegation  that a variance          existed  between the indictment and the evidence.  The genesis of          the  claim  is as  follows.    Near the  end  of  the trial,  the          attorneys presented a stipulation to the court.   The stipulation          confirmed that the  contraband seized from  Figueroa in Maine  at          the time  of  the denouement  comprised eighty-one  bags "of  the          paper  type"  and fifty  bags "of  the  plastic type."    But the          stipulation  erroneously described the  drugs as marijuana rather          than  heroin.  It seems  likely that no  one noticed the misnomer                                          9          for  the  court accepted  the  stipulation  without comment,  and          during closing  arguments each  side specifically  identified the          bags as containing  heroin.   The appellant now  claims that  the          obvious  error in  the stipulation  is a  variance  sufficient to          warrant vacation of the conviction.  We do not agree.                    The  key  datum  surrounding  a claim  of  variance  is          whether the  purported variance is sufficiently  severe to affect          the substantial  rights of the accused.  See id. at 6-7.  Passing                                                   ___ ___          the  point of whether a  criminal defendant ever  can predicate a                                                      ____          claim of variance on the introduction of evidence to which he has          stipulated, the claimed variance is more apparent than real.  The          record  discloses  that  the  reference  to  "marijuana"  was  an          isolated  event.   The  indictment, the  opening statements,  the          trial testimony,  the summations,  and the district  court's jury          instructions all spoke exclusively  and unambiguously of heroin            not  marijuana.    Moreover,  there  is   nothing  in  the  trial          transcript that suggests any basis for a claim that the appellant          was either misled or surprised   and he has not broached any such          theory in his appellate briefs.                    A criminal defendant  is entitled to a  fair trial, not          necessarily a perfect  one.  Viewed in  the context of  the whole          record, the misstatement  is at  worst the type  of minor  defect          that cannot plausibly be said to impact a defendant's substantial          rights.   See, e.g., United  States v. Fermin  Castillo, 829 F.2d                    ___  ____  ______________    ________________          1194, 1196-97 (1st Cir. 1987) (reaching a similar conclusion when          the indictment  misstated  the  name  of  the  bank  that  issued                                          10          material  documents and  mischaracterized the  purpose for  which          these documents  were used).   Since the  stipulated misstatement          did not deprive the appellant of his due,  plain error is plainly          lacking.                    In  a related vein,  the appellant  raises an  issue of          spillover from one  conspiracy to  another.  We  find this  claim          hard  to follow.  In virtually all cases involving allegations of          prejudicial spillover the trial  involves more than one defendant          or more than  one count.  See, e.g., United  States v. Wihbey, 75                                    ___  ____  ______________    ______          F.3d  761, 774-75 (1st Cir.  1996); United States  v. Boylan, 898                                              _____________     ______          F.2d  230, 248  (1st Cir.),  cert. denied,  498 U.S.  849 (1990).                                       _____ ______          Here, however, the appellant stood trial alone on a single charge            and the only evidence admitted at the trial was evidence deemed          relevant  to his guilt  or innocence on  that charge.   Thus, the          claim of prejudicial spillover is a non sequitur.                    In  a vain  effort  to overcome  this incongruity,  the          appellant suggests that his  dealings with Figueroa were entirely          distinct from Soto's dealing with Figueroa, and that the evidence          anent the  Soto-Figueroa dealings "spilled  over" and  prejudiced          the jury against  him.  This  view misconceives both  the law  of          conspiracy and the rules of evidence.  It is settled that members          of a conspiracy need not all know each other, work  side by side,          or  otherwise march  in lockstep.   See,  e.g., United  States v.                                              ___   ____  ______________          Sepulveda,  15 F.3d 1161, 1191 (1st Cir. 1993), cert. denied, 114          _________                                       _____ ______          S. Ct. 2714  (1994); United States  v. Rivera-Santiago, 872  F.2d                               _____________     _______________          1073, 1079  (1st Cir.), cert. denied, 492 U.S. 910 & 493 U.S. 832                                  _____ ______                                          11          (1989).    The  government's  theory  here,  as  limned  in   the          indictment and  bill of particulars, posited  a single conspiracy          with  Figueroa as a  linchpin.  The  court permitted  the jury to          hear  the evidence of Soto's  involvement on that  basis, for the          most part without objection.  We discern no error in the district          court's  reception  of  the evidence.    See  Fed.  R. Evid.  401                                                   ___          (defining relevancy); see also United States v. Nazzaro, 889 F.2d                                ___ ____ _____________    _______          1158,  1168 (1st Cir. 1989) (applying abuse of discretion test to          admission of evidence).                                          D.                                          D.                                          __                                      Sentencing                                      Sentencing                                      __________                    The  appellant's final  claim is  that the  lower court          improperly   applied  the  career  offender  guideline,  U.S.S.G.           4B1.1,  to his case.   Because this supposed  bevue involves the          sentencing  court's  interpretation  of a  guideline,  we  afford          plenary review.  See United States v. Winter, 22 F.3d 15, 18 (1st                           ___ _____________    ______          Cir. 1994).  The guideline states:                    A defendant  is a career offender  if (1) the                    defendant was at least  eighteen years old at                    the  time of  the  instant offense,  (2)  the                    instant  offense of  conviction  is a  felony                    that  is  either a  crime  of  violence or  a                    controlled  substance  offense,  and (3)  the                    defendant  has  at  least  two  prior  felony                    convictions of either a crime of  violence or                    a controlled substance offense.          U.S.S.G.  4B1.1 (Nov. 1992).   The question before us  is whether          the appellant's predicate  offenses crossed the two-prior-felony-          convictions threshold established by  4B1.1.                    The  appellant's criminal  record  as disclosed  in the                                          12          presentence investigation  report included  (1) a  conviction for          assault and  battery against a  police officer, (2)  a conviction          for  assault and battery with  a dangerous weapon  (a work boot),          (3) multiple convictions on narcotics charges (including a charge          of  distributing heroin) stemming  from a single  arrest on March          20,  1990,  and  (4)  another  set  of  multiple  convictions  on          narcotics-related  charges (including  possession of  heroin with          intent to distribute) stemming  from a second arrest on  April 9,          1990.  The  two drug arrests occurred within a  few weeks of each          other and they were eventually consolidated for sentencing.   The          appellant claims  that this consolidation rendered  the crimes we          have listed under  items (3)  and (4) "related  cases" and  meant          that  they had to be treated as  a single offense for purposes of           4B1.1.  See  U.S.S.G.  4A1.2(a)(2)  & comment. (n.3).   He  also                   ___          argues that because he  received a sentence of under  one year on          each  of  the assault  and battery  convictions, neither  of them          constitutes  a cognizable  predicate  offense.   Inasmuch as  the          appellant's  second argument  is clearly  erroneous, we  need not          address the question of whether the two sets of narcotics charges          constitute  separate predicate offenses under the career offender          guideline.                    U.S.S.G.   4B1.2(1)  defines  a crime  of  violence  in          pertinent  part  as  "any  offense  under  federal or  state  law          punishable by imprisonment for a term exceeding one year that . .          .  has as an element the use .  . . of physical force against the          person of another."   The appellant contends that neither  of his                                          13          prior convictions for assault and battery satisfy the requirement          of being  "punishable by  imprisonment for  a term  exceeding one          year" since  he received a  six-month sentence on  each occasion.          The guideline, however,  does not  speak in terms  of a  judicial                                                                   ________          judgment  (the length of the sentence meted out), but, rather, in          terms   of  a   legislative  judgment  (the   maximum  punishment                          ___________          applicable to the offense).  See  U.S.S.G.  4B1.2, comment. (n.3)                                       ___          (Nov. 1992) (explaining that a "'[p]rior felony conviction' means          a prior  . . . conviction  for an offense punishable  by death or          imprisonment for a term exceeding one  year, regardless of . .  .          the actual sentence imposed"); see also United States v. Sanchez,                                         ___ ____ _____________    _______          917 F.2d 607, 615 (1st Cir. 1990) (reaching the same conclusion),          cert.  denied, 499  U.S. 977  (1991).   The offenses  occurred in          _____  ______          Massachusetts,  and assault  and battery  was punishable  in that          commonwealth at  the time by  imprisonment of up  to two-and-one-          half years.   See Mass. Gen. L.  ch. 265,   13A (1990).   Seen in                        ___          this light,  the appellant's convictions for  assault and battery          constitute predicate  offenses within  the purview of  the career          offender guideline.4  Thus,  the sentencing court did not  err in          treating the appellant as a career offender.                                        ____________________               4The appellant argues that  the later conviction for assault          and battery  with a dangerous  weapon should be  excluded because          the  "weapon" was  a pair  of work  boots.   We  do not  see what          possible difference flows from this distinction.  For one  thing,          we take  a categorical approach  to the examination  of predicate          offenses in order to determine whether they meet the requirements          of the career offender guideline.  See, e.g.,  Winter, 22 F.3d at                                             ___  ____   ______          18.  For another thing, assault and battery is no less a crime of          violence  because the  assailant  stomps his  victim rather  than          assaulting him in some more traditional manner.                                          14                                         III.                                         III.                                         ____                                      Conclusion                                      Conclusion                                      __________                    We  need go no further.  The other assignments of error          are patently meritless and do not warrant discussion.  The record          reflects,   without   serious   question,   that   the  appellant          experienced  a fair  trial  in a  proper venue,  and that  he was          lawfully convicted and sentenced.          Affirmed.          Affirmed.          ________                                          15
