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APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE. Hon. John A. Woodcock, U.S. District Judge.
David W. Ruoff, with whom Howard & Ruoff, PLLC, was on brief, for appellant Trinidad-Acosta.
Hunter J. Tzovarras for appellant Cogswell.
Seth R. Aframe, Assistant United States Attorney, with whom John P. Kacavas, United States Attorney, was on brief, for appellee.
Before Torruella, Dyk,[*] and Thompson, Circuit Judges.
TORRUELLA, Circuit Judge.
Defendants-Appellants Manuel Trinidad-Acosta (" Trinidad" ) and Ed Cogswell (" Cogswell" ) were convicted for their involvement in a conspiracy to distribute cocaine base (or " crack cocaine" ). They appeal their convictions and sentences, citing a number of alleged trial and sentencing errors. We have reviewed their claims carefully and do not find merit in any of them. Accordingly, we affirm.
Sometime around September 2010, two New York residents, in coordination with a local drug dealer, set up a business for distributing crack cocaine in Bangor, Maine. The conspiracy's leader, Dawlin Cabrera (" Cabrera" ), remained in New York, from where conspiracy members shipped packages of crack cocaine to Maine by bus. At its peak, the conspiracy sold close to 300 grams of crack cocaine each month. Initially, the drugs were distributed from a number of residences in Bangor, although by December 2010 the sale and storage of the crack cocaine arriving from New York was centralized in a single location: 100B Ohio Street.
The conspiracy leaders recruited a number of individuals to participate in its local Bangor operations. Among those recruited was Trinidad -- known to conspiracy members as " Fish" or " Peje." Trinidad lived at the 100B Ohio Street apartment for a portion of the conspiracy's duration, participating in the storage and sale of crack cocaine at the residence.
A bank account was opened for Cabrera at the local Bank of America branch using an alias. Trinidad would deposit into that account cash proceeds from the sale of crack cocaine; Cabrera would then withdraw this money from New York City branches of the bank.
Co-defendant Cogswell, a daily crack cocaine user, participated in the conspiracy as a salesman. He would regularly purchase bundles of crack cocaine from the New York importers and resell the drug to local customers in and around Bangor. Cogswell also lived for some time at the 100B Ohio Street apartment, and he too made some cash deposits into Cabrera's bank account.
Jennifer Holmes (" Holmes" ) regularly purchased crack cocaine at the Ohio Street address from either Trinidad, Cogswell, or another member of the conspiracy. Holmes purchased firearms for Trinidad and for some other members of the conspiracy, for which she was compensated with crack cocaine.
By the summer of 2011, law enforcement had detected the drug distribution operation and had developed confidential informants. In November 2011, law enforcement raided the Ohio Street apartment. After some arrests were made, most of the co-conspirators provided information and agreed to cooperate; Trinidad and Cogswell did not.
A grand jury indicted Trinidad and Cogswell on one count of conspiracy to possess with the intent to distribute twenty-eight grams or more of crack cocaine, in violation of 21 U.S.C. § 841(b)(1)(B) and § 846. Trinidad was also indicted on one count of possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c).
Both defendants were tried together. The trial evidence consisted of testimony from multiple cooperating co-conspirators who operated out of the 100B Ohio Street apartment, each of whom identified Trinidad and Cogswell as members of the conspiracy, except for Cabrera, who identified Cogswell as a drug user and customer of the conspiracy. There was also evidence that Trinidad had signed the lease for the Ohio Street apartment, paid the monthly rent in cash, and was responsible for monitoring drugs stored in the apartment.
In addition, the government presented evidence that both defendants had deposited drug proceeds into Cabrera's bank account and that they had both made multiple crack cocaine deliveries. Finally, there was testimony from Holmes, who, following a request from Cogswell, had purchased a gun for Trinidad. This gun was recovered by the police from an apartment in which Trinidad was staying.
After a five-day trial, both defendants were found guilty as charged. At sentencing, Trinidad was found responsible for 4.9 kilograms of crack cocaine, triggering a base offense level of thirty-six. A two-level enhancement was applied under U.S. Sentencing Guidelines Manual (" U.S.S.G." ) § 2D1.1(b)(12) for maintaining a premises for the purpose of distributing a controlled substance (known as the " crack house enhancement" ), increasing the offense level to thirty-eight. Since Trinidad had a criminal history category of I, the applicable advisory guidelines sentencing range (" GSR" ) was 235-293 months of imprisonment for the conspiracy count and 60 months for the firearm count, for a total of 295-353 months. The government requested that Trinidad be sentenced to 295 months, while Trinidad asked for a 180-month sentence. Trinidad was ultimately sentenced to 240 months (180 months on Count One and the statutorily required consecutive 60 months on Count Two)
-- almost five years below the low end of the GSR.
For his part, Cogswell was found responsible for 841 grams of crack cocaine, yielding a base offense level of thirty-four. The district court added a two-level obstruction-of-justice enhancement for writing a threatening letter to a testifying witness after trial, and a two-level increase for possession of a firearm, elevating the offense level to thirty-eight. He had a criminal history category of II, which resulted in a GSR of 262-327 months. Cogswell was sentenced to 180 months of imprisonment -- almost seven years below the low end of the GSR.
II. Discussion of Trinidad's Claims
A. Denial of Motion for a Mistrial
Trinidad argues that the district court erred in denying his motion for a mistrial. We disagree.
On January 30, 2013, Holmes testified against the defendants, as part of her cooperation agreement with the government. During direct examination, Holmes identified Trinidad, who is a dark-skinned Dominican, as well as Cogswell, who is Caucasian, as people involved in the conspiracy.
When the prosecutor asked Holmes if Trinidad was in the courtroom, Holmes answered in the affirmative. When asked to describe an article of clothing that he was wearing, Holmes indicated that she could not do so, because she could not see him. The prosecutor then asked Holmes to stand up so that she could see what he was wearing from the waist up. When she stood up, Holmes immediately identified the clothing that Trinidad was wearing.
Holmes had more difficulty identifying Cogswell. Initially, Holmes said that she could not determine whether Cogswell was in the courtroom, because she was nearsighted and needed glasses, which she did not have. Holmes then walked off the witness stand and got closer to the people in the courtroom, but still could not identify Cogswell. Subsequently, the prosecutor, who was also nearsighted, offered Holmes his glasses. Upon putting on the prosecutor's glasses, Holmes testified that she could see very clearly, and identified Cogswell.
On cross-examination, Trinidad's attorney tried to attack Holmes's credibility -- regarding her identification of Trinidad -- by suggesting that Holmes identified Trinidad more easily than Cogswell because Trinidad was the only dark-skinned person in the courtroom. Holmes, however, responded that she was able to identify Trinidad more easily because " [she] walk[s] past him every day. [She is] in jail with him." 
Trinidad then moved for a mistrial on account of Holmes's statement that she walked past Trinidad every day in jail. While he recognized that Holmes's statement was made " spontaneously" and " without any assistance from the government," Trinidad argued that it was the first time that anyone had referred to him being in custody and that it warranted a mistrial because of the prejudicial effect of having the jury know that he was in custody.
The district court denied Trinidad's request for a mistrial. It noted that Trinidad's attorney was attacking Holmes's credibility and that her testimony was a direct and natural response to defense counsel's suggestion that she was able to identify Trinidad more easily than Cogswell because of Trinidad's skin color. The trial court reasoned that Trinidad could not, by his own questioning, elicit a response that he did not like and then turn around and move for a mistrial based on the response.
The government suggested that the trial court consider a limiting instruction on Holmes's answer. In response, the court noted that giving a limiting instruction could bring more attention to the testimony, which could have escaped the jury, and told Trinidad that it was completely up to him to decide whether he wanted a limiting instruction given to the jury. Trinidad decided not to request a limiting instruction.
2. Applicable Law and Analysis
" Declaring a mistrial is a last resort, only to be implemented if the taint is ineradicable, that is, only if the trial judge believes that the jury's exposure to the evidence is likely to prove beyond realistic hope of repair." United States v. Diaz, 494 F.3d 221, 227 (1st Cir. 2007) (quoting United States v. Sepulveda, 15 F.3d 1161, 1184 (1st. Cir. 1993)). When reviewing the denial of a request for a mistrial, " we consider the totality of the circumstances to determine whether the defendant has demonstrated the kind of clear prejudice that would render the court's denial of his motion for a mistrial a manifest abuse of discretion." United States v. Dunbar, 553 F.3d 48, 58 (1st Cir. 2009) (internal quotation marks omitted) (quoting United States v. Freeman, 208 F.3d 332, 339 (1st Cir. 2000)). " In conducting this inquiry, we are mindful that the trial court has a superior point of vantage, and that it is only rarely -- and in extremely compelling circumstances -- that an appellate panel, informed by a cold record, will venture to reverse a trial judge's on-the-spot decision." Freeman, 208 F.3d at 339 (internal quotation marks omitted); see also United States v. Pierro, 32 F.3d 611, 617 (1st Cir. 1994) (" Battles over the need for a mistrial most often will be won or lost in the district court." ). We examine " the context of the improper remark, whether
it was deliberate or accidental, the likely effect of the curative instruction, and the strength of the evidence against the appellants." United States v. Cresta, 825 F.2d 538, 549-50 (1st Cir. 1987). Deference to the district court's ruling is particularly appropriate where, as here, the request for mistrial is based on a claim that " some spontaneous development at trial may have influenced the jury in an improper manner." Diaz, 494 F.3d at 226.
Trinidad claims that Holmes's statement -- that she had seen him in jail every day -- interfered with his constitutional right to a presumption of innocence and should be considered " highly prejudicial." He offers three alleged reasons:(1) evidence that Trinidad was in jail with Holmes created the chance that the jury would infer guilt by association; (2) the jury was free to infer that Trinidad's incarceration was the result of the judicial determination of Trinidad's dangerousness or guilt; and (3) if the jury did not think that Trinidad was detained on the pending charges, they were free to speculate that he was in fact incarcerated on other charges. Trinidad contends that the trial court had no option but to order a mistrial.
Trinidad relies on Estelle v. Williams, 425 U.S. 501, 503-05, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976), to support his proposition that a mistrial was warranted. In Estelle, the Supreme Court held that forcing a defendant to wear prison garb throughout his trial undermines the defendant's presumption of innocence because such clothing is a constant reminder of the defendant's condition as a pretrial detainee. Id. at 504. Trinidad alleges that Holmes's brief reference to his incarceration had the same effect as the prisoner clothing at issue in Estelle. We disagree.
The possible effect on the jury of Holmes's fleeting comment regarding Trinidad's pre-trial incarceration status is markedly different from that of a defendant wearing prison clothing throughout his entire trial. The Supreme Court held in Estelle that the clothing would be a " constant reminder" of the defendant's condition as a pretrial detainee. 425 U.S. at 504 (emphasis added). Here, on the contrary, we are dealing with a single, isolated statement that was made and put to rest, and that did not provide any details about Trinidad's incarceration. A number of cases -- both from this and other circuits -- support this crucial distinction and counsel that we reject Trinidad's argument. See, e.g., United States v. De Jesus Mateo, 373 F.3d 70, 73 (1st Cir. 2004) (holding that there was no abuse of discretion in denying mistrial based on a comment that the defendant was in prison where the comment " provided the jury with little detail" ); see also
United States v. Deandrade, 600 F.3d 115, 118 (2d Cir. 2010) (" [T]he rule that emerges is that brief and fleeting ...