17 F.4th 175
1st Cir.2021Background:
- April 20–21, 2017: CBP airplane detected a small unlit boat ~30 miles off Puerto Rico; infrared images showed bales/packages in the boat; Coast Guard/CBP interdicted and found no contraband aboard.
- Two occupants: Noel De Leon–De la Rosa and Juan Batista Johnson–Debel; Johnson was interviewed twice (Agent Borges onboard and HSI Agent Calderón ashore after Miranda warnings) and admitted that he and a companion tied "eso"/"doce piezas" (slang for cocaine) to a spare outboard engine and threw it overboard when interdicted.
- Canine handler testified the dog alerted to possible narcotics contamination; an Ionscan test of swabs was negative; phone messages from the boat suggested a planned transaction.
- Indictment charged Counts 1–6 (possession/possession conspiracy and destruction/conspiracy to destroy forfeitable property under 21 U.S.C. § 881 and 46 U.S.C. § 70503) and immigration counts; jury acquitted on possession counts (1–4) but convicted both defendants on Counts 5 (conspiracy to destroy forfeitable property) and 6 (destruction of forfeitable property) plus respective immigration counts.
- De Leon moved to sever on Bruton grounds (admission of Johnson's statements); motion denied. On appeal, the First Circuit affirmed sufficiency of the evidence but vacated convictions for different reasons: De Leon's convictions vacated for Bruton violation; Johnson's convictions vacated for constructive amendment via jury instructions.
Issues:
| Issue | Plaintiff's Argument (Gov't) | Defendant's Argument | Held |
|---|---|---|---|
| 1) Sufficiency of evidence for Counts 5 & 6 (destruction & conspiracy) | Infrared images, canine alert, phone evidence, and Johnson's admissions together suffice to prove cocaine aboard and its jettisoning; circumstantial evidence supports conspiracy | Defendants argued evidence was insufficient; Johnson said the only proof of destruction was his confession and it lacked independent corroboration | Court (de novo review) rejected sufficiency challenges: evidence (including independent corroboration) was adequate to sustain convictions on the merits (but later vacated on other grounds) |
| 2) Can an out-of-court confession alone support conviction (Tanco‑Baez/Opper corroboration rule)? | Gov't: Johnson's confession was corroborated by substantial independent evidence (infrared images, dog alert, phone messages, agents' testimony about smugglers' use of spare engines) | Johnson: under Tanco‑Baez, confession needed substantial independent corroboration and here was insufficient | Held: Tanco‑Baez requirement satisfied — record contained substantial independent evidence tending to establish the confession's key components |
| 3) Confrontation Clause/Bruton challenge (De Leon) — admission of Johnson's statements at joint trial | Gov't: statements were not facially incriminating of De Leon; limiting instruction cured any problem; statements came from different witnesses and are innocuous alone | De Leon: Johnson's extrajudicial statements (to Borges and Calderón) were powerfully incriminating and De Leon lacked opportunity to cross‑examine Johnson (Bruton) | Held: Admission of Johnson's statements (taken together) was facially incriminating under Bruton/Gray; limiting instruction insufficient; De Leon's Counts 5 & 6 convictions vacated |
| 4) Constructive amendment via jury instructions (Johnson) — instructions allowed conviction for destroying "equipment used for delivering controlled substances" though indictment alleged destruction of a "controlled substance" | Gov't: § 881 covers both types of forfeitable property and any conviction would necessarily entail findings that controlled substances were implicated; no prejudice | Johnson: instructions broadened the indictment to allow conviction on an uncharged theory (equipment), violating the grand jury right and requiring reversal under Stirone; plain‑error review applies | Held: Jury instructions constructively amended the indictment (clear/obvious error); prejudice shown (reasonable probability jury convicted on uncharged theory); convictions on Counts 5 & 6 vacated under plain‑error analysis |
Key Cases Cited
- Bruton v. United States, 391 U.S. 123 (1968) (admission of a non‑testifying codefendant’s powerfully incriminating extrajudicial statements at a joint trial violates the Confrontation Clause)
- Richardson v. Marsh, 481 U.S. 200 (1987) (Bruton inapplicable where confession is redacted and becomes incriminating only when linked to defendant by other properly admitted evidence)
- Gray v. Maryland, 523 U.S. 185 (1998) (distinguishes harmless/redacted statements; whether inference required is of a kind jurors would make immediately determines Bruton applicability)
- United States v. Tanco‑Baez, 942 F.3d 7 (1st Cir. 2019) (out‑of‑court confession needs substantial independent evidence tending to establish the crime admitted to be given weight)
- Opper v. United States, 348 U.S. 84 (1954) (corroboration principle for confessions: independent evidence must tend to establish essential facts admitted)
- Stirone v. United States, 361 U.S. 212 (1960) (jury instructions that broaden possible bases for conviction beyond the indictment constitute constructive amendment)
- United States v. Brandao, 539 F.3d 44 (1st Cir. 2008) (plain‑error framework for constructive amendment: clear/obvious error, prejudice to substantial rights, and effect on fairness/integrity/public reputation)
- Dunn v. United States, 284 U.S. 390 (1932) (inconsistent verdicts between counts do not require reversal; each count treated as a separate indictment)