                                                                             File Name: 05a0457n.06
                                                                                  Filed: June 1, 2005

                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

                                   Nos. 03-5567; 03-5701; 03-6376

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,
     Plaintiff-Appellee,
                                                  On Appeal from the United States District Court
v.                                                          for the Eastern District of Tennessee

ABEL SANTIAGO; RUEBEN
SANTIAGO; HILARIO ZUNIGA,
     Defendants-Appellants.


Before:        SUTTON and COOK, Circuit Judges; ALDRICH, District Judge*




       ANN ALDRICH, District Judge.            In these criminal appeals, three men challenge their

convictions on various charges of narcotics distribution and criminal conspiracy.

       A jury in the Eastern District of Tennessee convicted Rueben Santiago of conspiracy to distribute

over 1,000 kilograms of marijuana, conspiracy to distribute over five kilograms of cocaine, use of a

communication device to facilitate the distribution of a controlled substance, and distribution of a

quantity of cocaine. Rueben Santiago was sentenced to 210 months’ imprisonment.

       The same jury convicted Abel Santiago of operating a continuing criminal enterprise, conspiracy

to distribute in excess of 1,000 kilograms of marijuana, conspiracy to distribute over five kilograms of



       *
          The Honorable Ann Aldrich, United States District Judge for the Northern District of Ohio,
sitting by designation.
cocaine, five counts of distribution of cocaine, and one count of distributing over 100 kilograms of

marijuana. Abel Santiago was sentenced to 360 months’ imprisonment.

       Finally, the jury convicted Hilario Zuniga (“Zuniga”) of conspiracy to distribute in excess of

1,000 kilograms of marijuana, conspiracy to distribute over five kilograms of cocaine, and distributing

over 100 kilograms of marijuana. Zuniga received a sentence of 188 months’ imprisonment.

       Each of the three defendants now appeals his conviction. Rueben Santiago alleges prejudice as

a result of a discovery violation by the government and ineffective assistance of counsel, while Abel

Santiago and Zuniga allege that the evidence at trial was insufficient to establish certain facets of their

convictions.

       Because the government’s discovery violation did not prejudice Rueben Santiago or otherwise

infringe upon his right to a fair trial, and because sufficient evidence supported the convictions of Abel

Santiago and Zuniga, we AFFIRM the jury’s verdict and the district court’s rulings. However, we

remand all three cases to the district court for re-sentencing in accordance with United States v. Booker,

125 S.Ct. 738 (2005).

                                             I. Background

       The trial and conviction of the three appellants stems from the breakup of an extensive

organization dedicated to the sale of illegal drugs and headquartered at Harloff Farms, a several-hundred

acre farm in Cocke County, Tennessee. In 2000, the FBI joined local law enforcement in investigating

this organization. The FBI obtained a court-ordered Title III wire intercept, and used it to record

hundreds of wire communications among co-conspirators. By means of these recordings, as well as

persistent surveillance and the use of confidential informants within the organization, the FBI was able




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to intercept shipments of cocaine en route from Atlanta, Georgia, to the farm, and to obtain warrants

authorizing a search of the Harloff property.

       On June 15, 2001, nineteen such warrants were executed at the farm and surrounding

communities. FBI agents seized, among other things: $5,000, several guns, and a large quantity of

jewelry from Abel Santiago’s residence; $80,000 and several guns from Zuniga’s residence; $36,000

from Zuniga’s van; and 800 pounds of marijuana and $1,000 in cash from the basement of a brick house

located within walking distance of the above residences.

       On July 25, 2001, the three appellants were charged, along with twelve other individuals, in a

multiple-count indictment for conspiracy to distribute, and for distribution of, marijuana and cocaine.

The July indictment was superseded on September 25, 2001, by a 77-count indictment alleging similar

criminal acts by the appellants and by thirteen other individuals. Each of these thirteen others pleaded

guilty before a trial could be held.

       On August 13, 2002, the appellants proceeded to trial. Evidence submitted by the government

in support of its case included the aforementioned seizures (guns, drugs, money, and jewelry) as well

as:

•      Testimony from Manrique Reynoso (“Reynoso”), who ran a drug operation from a nearby farm,

       that every two to three weeks during 2000 he had supplied Abel Santiago with cocaine, and that

       on one occasion he had supplied him with 50 pounds of marijuana;

•      Testimony by Reynoso that he used Jose Jaime Salazar (“Salazar”) as a courier to deliver

       cocaine to Abel Santiago, and that he considered Salazar to be Abel Santiago’s assistant;

•      Testimony by Reynoso that he had also purchased 100 pounds of marijuana from Zuniga, and

       that Zuniga and Abel Santiago had delivered the marijuana to him;


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•   A tape-recorded conversation in which Salazar asks Reynoso for a kilogram of cocaine, and

    Reynoso agrees to send it to him, along with testimony by Reynoso that he had delivered the

    cocaine and received payment from Abel Santiago a few days later;

•   Three additional tape-recorded conversations in which Reynoso and Abel Santiago discuss

    shipments of cocaine;

•   Testimony by Jaime Benitez (“Benitez”) that he received marijuana and cocaine from Reynoso,

    and sold ounce and kilogram quantities of cocaine to Abel Santiago, as well as a tape-recorded

    conversation in which Benitez and Abel Santiago discuss the price of a previous cocaine

    delivery;

•   Testimony from Miguel Ramirez that he purchased drugs from both Reynoso and Abel Santiago,

    and that he had witnessed deliveries of drugs to Abel Santiago, including a van full of marijuana

    (later seized by agents and found to contain 860 pounds of the substance), by a man called

    “Luis”;

•   Statements from Mario Quintana that he had distributed drugs to Abel Santiago on Reynoso’s

    behalf, and that he was present when Zuniga and Abel Santiago delivered 100 pounds of

    marijuana to Reynoso via pickup truck;

•   Testimony from Christian Perez (“Perez”), Abel Santiago’s girlfriend and co-habitant since

    February 2001, that she had sold cocaine for Abel, that she had seen large quantities of

    marijuana (7 to 10 kilos at a time) at the brick house known to be used as a storage facility by

    Zuniga, and that she had witnessed Salazar selling marijuana for both Zuniga and Abel Santiago;

•   Three recorded conversations in which Perez and Abel Santiago discuss delivery of cocaine to

    customers;


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•   A tape-recorded conversation in which Abel Santiago’s cousin Hilda asks for directions to his

    trailer-park residence, so that she can assist a buyer looking to pick up cocaine;

•   A tape-recorded conversation in which Abel Santiago instructs Caesar Perez, Christian’s brother,

    not to go through with a deal for a half-ounce of cocaine, because the buyer was not offering

    enough money;

•   Testimony from Jose Pena Garcia that he had received marijuana from Zuniga and Zuniga’s son,

    Oscar;

•   Testimony from Charles Barnette (“Barnette”), a confidential informant instructed by agents to

    make purchases from various of the co-conspirators, that he had been introduced to Abel

    Santiago as “the main pin in the wheel” and that he had seen Abel acting in a supervisory role;

•   Testimony from Barnette that he purchased an ounce of cocaine from Rueben Santiago on May

    31, 2000, and more cocaine from an individual called “Frank” on July 26, 2001;

•   A tape-recorded conversation in which Barnette and Rueben Santiago discuss a future cocaine

    transaction, and Santiago mentions that he has just sold three kilos for $80,000;

•   Testimony from Charles Noe, that as a middleman in the drug business since 1998, he had

    negotiated deals in which drugs were purchased from each of the three defendant/appellants, and

    that over the course of two years he had personally bought drugs from each of the three, and

    made payments of at least $500,000 to Abel Santiago for cocaine and marijuana;

•   Testimony from Earnest and Jeannie Marshall, who were originally cantaloupe pickers on the

    Harloff farm, but began (along with their son, Michael) delivering and selling drugs for the three

    appellants in 1999. Earnest Marshall testified to a number of individual transactions, and

    explained that in return for his services he received cocaine for his personal use;


                                              -5-
•      Testimony from Crystal Marshall, daughter of Earnest and Jeannie, and Rueben Santiago’s

       occasional girlfriend, that she had observed her brother Michael and Rueben Santiago selling

       two kilograms of cocaine and then 200 pounds of marijuana for Abel Santiago;

•      Testimony from Crystal Marshall that she had received letters from Rueben Santiago threatening

       to harm her and her child if she testified against him or against Abel Santiago;

•      Testimony from Crystal Marshall that Abel Santiago and Salazar controlled Rueben Santiago’s

       activities by supplying him with crack cocaine to support his own habit;

•      Testimony from Anthony Caldwell that he had purchased cocaine on a number of occasions

       from Salazar, as well as from each of the Santiagos;

•      Testimony from Marla Taylor, an occasional guest of Rueben Santiago at the farm, that she had

       witnessed a delivery of 85 to 100 kilograms of cocaine to Abel Santiago, and a truckload of

       marijuana to Zuniga, as well as Abel Santiago giving instructions on distribution and collection

       to Salazar; and

•      Testimony from Melinda Rodriguez, a neighbor and a former laborer on the farm, who observed

       Zuniga using the brick house to store marijuana.

On August 20, 2002, the government concluded its case, and the district court granted motions to

dismiss several of the substantive distribution counts as well as a felon-in-possession charge against

Zuniga. The district court also denied a motion for a mistrial filed by Rueben Santiago, based upon the

government’s failure to make pretrial disclosure of one side of an audiotape. The tape in question

contained the testimony summarized in italics above. Following the court’s denial of the various

motions, the jury issued the verdicts outlined above. These appeals followed.




                                                 -6-
                                          II. Trial Proceedings

       Rueben Santiago argues that the district court erred in denying his motion for a mistrial, claiming

that the failure to disclose the relevant portions of the Barnette recording unduly prejudiced him, and

made it impossible for his counsel to effectively assist him. Abel Santiago argues that his conviction was

not supported by sufficient evidence, but only in that the government failed to establish beyond a

reasonable doubt that he “supervised” five other people. Zuniga asserts that his conviction was not

supported by sufficient evidence, in that there was “no credible evidence” connecting him to the drugs

seized in the brick house.

       We will address each appellant’s arguments individually.

A. Reuben Santiago

       Following Barnette’s testimony and the playing of the tape in question before the jury, it became

clear that the portion of the recording in which Reuben Santiago is heard to admit to selling cocaine had

not been provided to Santiago’s counsel. Apparently, the admission was on a tape containing recorded

material on both sides – “A” and “B” – contrary to the usual FBI practice of using side “A” exclusively.

The government copied only side “A” of each of more than 350 tapes in its possession for the purposes

of disclosure to opposing counsel, and thus inadvertently omitted the key passage from the material

given to Santiago’s lawyer.

       Santiago contends that this error resulted in a deprivation of his constitutional rights, and that

he is entitled to a new trial to redress it. The district court declined to declare a mistrial, finding that

allowing Santiago to recall and re-examine any witnesses that introduced or testified regarding the tape

would be a sufficient curative measure. The court noted that the government’s error was inadvertent,




                                                   -7-
and held that it had not prejudiced Santiago, because the government had previously informed him of

its intention to introduce evidence that he had sold the three kilos of cocaine.

       The panel reviews a district court’s decision to deny a mistrial for abuse of discretion. United

States v. Trujillo, 376 F.3d 593, 613 (6th Cir. 2004), citing United States v. Yang, 281 F.3d 534, 549 (6th

Cir. 2002). “An abuse of discretion exists when the reviewing court is firmly convinced that a mistake

has been made.” Id., citing United States v. Carroll, 26 F.3d 1380, 1383 (6th Cir. 1994). “Deference is

given to the district court because the trial judge is in the best position to determine the nature of the

alleged ... misconduct ... [and] is also in the best position to determine appropriate remedies for any

demonstrated misconduct.” Id., citing United States v. Copeland, 51 F.3d 611, 613 (6th Cir. 1995)

(internal quotation marks omitted).

       The district court did not abuse its discretion in denying a mistrial as a remedy for the

government’s inadvertent nondisclosure. As the court indicated, Santiago was alerted to the

government’s intent to introduce evidence regarding the sale of the three kilos in question. Even without

the tape, Barnette could have testified to as much. Moreover, the evidence regarding Santiago’s sale of

three kilos was not introduced in support of any substantive charge of distribution. The jury could easily

have found him guilty of the conspiracy charges without even considering the recorded conversation

or the three-kilo transaction.

       In finding that the error was not substantially prejudicial to Santiago, the court relied on “a

determination of the fairness to the accused” as its “primary concern.” United States v. Atisha, 804 F.2d

920, 926-27 (6th Cir. 1986). With this in mind, allowing Santiago to recall and to question witnesses

involved with the recording was a remedy well within the court’s discretion.




                                                   -8-
       Santiago’s counsel contends that the surprise engendered by playing the tape hindered his

performance at trial, and that the non-disclosure prevented him from rendering effective counsel to his

client before trial. Neither of these arguments justifies reversal. Surprising moments and unexpected

statements made from the witness stand are par for the course in any trial, and even more so in a

relatively lengthy criminal proceeding. Counsel cannot claim a violation of his client’s rights under

Strickland v. Washington, 466 U.S. 668 (1984), merely because the revelation of the tape’s content

caught him off guard. Given the cumulative nature of the evidence (again, Barnette could have testified

about the three kilos from personal knowledge), counsel cannot plausibly claim that he was wholly

unprepared for what he heard.

       Finally, counsel’s claim that he would have advised a guilty plea had he been given the recording

is at best mere speculation. Without a finding of bad faith on the part of the government, we must

“indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance,” id. at 689, and find that Reuben Santiago has not shown that the tape “caused

[him] to lose what he otherwise would probably have won.” United States v. Morrow, 977 F.2d 222, 229

(6th Cir. 1992) (en banc).

B. Abel Santiago

       Abel Santiago alleges that the evidence presented by the government was insufficient to support

a finding that he organized, supervised, or managed five or more people as required to convict him of

engaging in a continuing criminal enterprise under 21 U.S.C. §848(c). See United States v. Elder, 90

F.3d 1110, 1122-23 (6th Cir. 1996).

       It is well established that an organizer is not necessarily able to control those whom he
       or she organizes. Rather, an organizer can be defined as a person who puts together a
       number of people engaged in separate activities and arranges them in their activities in
       one essentially orderly operation or enterprise.

                                                 -9-
United States v. Patrick, 965 F.2d 1390, 1397 (6th Cir. 1992) (citations omitted). Santiago concedes in

his brief that among the indicia of a narcotics operation organizer are the tendency to set prices for

drugs, dictate terms of payment, approve customers, store drugs at another’s property, supervise brokers

or couriers, and direct persons that collect or launder proceeds. United States v. Ward, 37 F.3d 243, 247

(6th Cir. 1994); United States v. Chalkias, 971 F.2d 1206, 1214 (6th Cir. 1992). A management

relationship requires more than mere interaction as buyer and seller. Ward, 37 F.3d at 248.

        Moreover, this Court’s mandate to “review ... the sufficiency of the evidence is quite limited.”

We must view “the evidence in the light most favorable to the government and will affirm the jury’s

verdict unless no rational trier of fact could have found, beyond a reasonable doubt,” that the defendant

committed the offense charged. United States v. Morrow, 977 F.2d 222, 230 (6th Cir. 1992) (en banc).

“[E]very reasonable inference from the evidence must be drawn in the government’s favor,” United

States v. Woods, 877 F.2d 477, 479 (6th Cir. 1989), citing United States v. Cooperative Theatres of

Ohio, Inc., 845 F.2d 1367, 1373 (6th Cir. 1988), and the Court must “refrain from independently judging

the weight of the evidence.” United States v. Suarez, 263 F.3d 468, 476 (6th Cir. 2001), cert. denied,

535 U.S. 991 (2002).

        Applying these principles, it is clear that a reasonable jury could have found that Abel Santiago

organized, supervised, or managed at least five people as required by the statute. Santiago concedes that

he supervised the drug-selling activities of his brother Rueben, as well as those of Christian Perez and

her brother Caesar. The jury also heard evidence that a number of persons dealt with Jose Salazar as

Abel Santiago’s assistant1, that both Ernest and Jeannie Marshall sold drugs for Santiago in exchange



        1
           As the government observes, Salazar’s status was confirmed by the testimony of Manrique Reynoso, Christian
Perez, Marla Taylor, and Anthony Caldwell. To find that Santiago supervised Salazar, the jury needed to believe only one
of these individuals.

                                                        - 10 -
for cocaine for their personal use, that Abel’s cousin Hilda had asked him for directions on behalf of a

man seeking to buy cocaine, and that a man named “Luis” had brought a van containing 860 pounds of

marijuana to Santiago for safekeeping. The jury needed only to believe the testimony concerning two

of these five individuals in order to support their finding that Abel Santiago supervised five persons.

Drawing all inferences in the government’s favor, we conclude that a reasonable jury could easily have

done so.

       Santiago seeks to analogize his case to others in which delivery men, sellers, or those merely

“providing inventory” to others were held not to have acted in a supervisory capacity. Those are not the

facts in this case. Here, the vast majority of the testimony depicted Abel Santiago as the lynchpin of the

Harloff Farms drug operation. Abel Santiago was repeatedly depicted as the organizer and manager of

cocaine and marijuana transactions, and the evidence showed at least seven individuals receiving

instructions from him. Again, the panel must construe all inferences in the government’s favor, and the

jury needed only to find the participation of 2 of the 5 individuals whose actions are disputed by

Santiago.

        Santiago devotes considerable space in his brief to identifying vagueness and inconsistencies

in the testimony describing “Luis.” Again, though, the jury need not have believed that “Luis”

participated in the conspiracy, or even that he existed, to legitimately find Santiago guilty beyond a

reasonable doubt. In fact, some members of the jury may have found “Luis” to have been a participant,

while others did not. “In deciding whether a defendant had a managerial relationship with five or more

persons, the jury is not required to agree unanimously on the identities of the five individuals.” United

States v. Fredell, 79 Fed. Appx. 799, 805 (6th Cir. Oct. 28, 2003), citing United States v. English, 925

F.2d 154, 157 (6th Cir. 1991).


                                                  - 11 -
       In sum, the evidence presented at trial was far from insufficient to demonstrate that Abel

Santiago supervised the requisite number of persons. Exercising the proper deference, and construing

all facts and inferences in the government’s favor, we affirm his conviction.

C. Hilario Zuniga

       Zuniga also challenges the sufficiency of the evidence supporting his conviction. In his appeal,

the government is entitled to the presumptions regarding jury deliberations and the credibility of

witnesses outlined above. Zuniga’s extremely brief argument – in which he cites only one case, Jackson

v. Virginia, 443 U.S. 307 (1979)(accused constitutionally protected against conviction except upon

evidence establishing every element of the crime beyond a reasonable doubt) – does no more than imply

that some of the government’s evidence was imperfect, and that some of its witnesses were less than

credible.

       As noted above, the government introduced a wealth of evidence indicating Zuniga’s

involvement in the Harloff Farms drug operation, including testimony by Marla Taylor, Melinda

Rodriguez, and the FBI agents who seized more than $100,000 in cash from Zuniga’s trailer and his van.

Zuniga’s argument of insufficiency must therefore fail on grounds similar to Abel Santiago’s.

       Moreover, the Court need not consider an argument as to which an appellant has not developed

supporting analysis. See Hutchison v. Bell, 303 F.3d 720, 748 n.7 (6th Cir. 2002)(claims inadequately

briefed are deemed waived), cert. denied, 539 U.S. 944 (2003); United States v. Layne, 192 F.3d 556,

566-67 (6th Cir. 1999)(issues presented in “perfunctory manner, unaccompanied by some effort at

developed argumentation” are deemed waived), cert. denied, 529 U.S. 1029 (2000); United States v.

Watkins, 179 F.3d 489, 500-01 (6th Cir. 1999)(appellant has “duty to point to the parts of the record that

support his position and also to present arguments in sufficient detail to show how they support his


                                                  - 12 -
position”). Zuniga has given us no more than the blanket assertion that “no credible evidence was

presented or in the record as to the guilt of this defendant;” as such, his claim is denied.

       For the foregoing reasons, the convictions of the three appellants are affirmed.

                                         III. Sentencing Issues

       Although none of the three appellants raised a challenge to his sentence in district court, we may

reverse the sentences imposed on a showing of plain error committed by the district court. See, e.g.,

United States v. Oliver, 397 F.3d 369, 377-78 (6th Cir. 2005); United States v. Calloway, 116 F.3d 1129,

1136 (6th Cir. 1997), cert. denied, 522 U.S. 925 (1997); FED. R. CRIM. P. 52(b).

       On June 24, 2004, while each of these cases were on appeal, the Supreme Court issued its

opinion in Blakely v. Washington, 124 S.Ct. 2531 (2004), which held that a court violates a defendant’s

Sixth Amendment rights whenever it imposes a sentence that is not based solely on “facts reflected in

the jury verdict or admitted by the defendant.” Id. at 2537. On January 12, 2005, while a decision on

these cases was still pending, the Supreme Court issued its opinion in Booker, which extended Blakely’s

Sixth Amendment holding to the federal Sentencing Guidelines and was deemed applicable to all cases

then on direct review. 125 S.Ct. at 769.

       Since Booker, this Court has frequently applied plain error review to find Sixth Amendment

violations and remand for re-sentencing. See, e.g., Oliver, 397 F.3d at 369; United States v. Alva, 2005

U.S. App. LEXIS 7431; 2005 FED App. 0197P (6th Cir. 2005); United States v. McDaniel, 398 F.3d

540, 547-50 (6th Cir. 2005). In fact, “even absent a Sixth Amendment violation, this Court has decided

that a defendant sentenced under the mandatory Guidelines regime is entitled to a remand for

resentencing under the now-advisory Guidelines unless there is evidence in the record to rebut the

presumption of prejudice.” Alva, 2005 U.S. App. LEXIS 7431, at *4-*5, citing United States v. Barnett,


                                                  - 13 -
398 F.3d 516, 525-27 (6th Cir. 2005). See also United States v. Sanders, 404 F.3d 980; 2005 U.S. App.

LEXIS 6704, at *18 (6th Cir. 2005) (district court committed “what we now know to be plain error” by

applying Guidelines as mandatory rather than advisory).

        Because the district court improperly found facts in sentencing the appellants, we must remand

all three for re-sentencing. Reuben Santiago received a sentence of 210 months, based at least in part

on an enhancement for obstruction of justice. Abel Santiago received a sentence of 360 months, based

at least in part on an enhancement for possession of a firearm. Zuniga received a sentence of 188

months, based at least in part on enhancements for both firearm possession and obstruction of justice.

Each appellant was found guilty of distribution and conspiracy offenses which do not include

obstruction or firearm possession as constituent elements. Thus, the enhancements for possession and

obstruction were made on the basis of judge-found facts and in contravention of Booker, and remand

is appropriate in all three cases.

                                           IV. Conclusion

        For the foregoing reasons, the convictions of Abel Santiago, Reuben Santiago, and Hilario

Zuniga are AFFIRMED. All three sentences are VACATED and the cases REMANDED for re-

sentencing.




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