United States v. Liriano, 2014 U.S. App. LEXIS 14948

Background

Border Patrol agents stopped an erratically driven Ford Focus near the Akwesasne Reservation and found two duffel bags of marijuana and a smaller bag with ~40,000 BZP pills; driver Xavier Robert was arrested and cooperated in a controlled-delivery operation.
Robert, directed by agents, called a Rhode Island number and used the word “candy” as a prearranged euphemism; Dennis Liriano answered and arranged a meeting in Providence.
At the meeting Liriano expressed concern about surveillance and suggested going to his house; both men were arrested.
Robert refused to testify at Liriano’s first trial (resulting in a hung jury); he did not testify at the second trial where Liriano was convicted of conspiracy to possess with intent to distribute a controlled substance.
Liriano moved for acquittal and a new trial arguing insufficiency of evidence, Confrontation Clause violations from admission of recorded statements, prosecutorial misconduct in closing (improperly asserting "candy" was a code word and invoking agent experience), and relevancy of a Montreal business card; the district court denied relief and the First Circuit affirmed.

Issues

Issue	Liriano's Argument	Government's Argument	Held
Sufficiency of the evidence for conspiracy	Evidence only shows a meeting and possible familiarity with local sites, not agreement to receive a controlled substance or knowledge that "candy" = drugs	Calls, contacts with Canadian handlers, Liriano’s replies and conduct (arrival, worry about surveillance), and his reaction to "candy" permit reasonable inference of agreement and knowledge	Affirmed — evidence sufficient for a rational jury to find conspiracy and knowledge of a controlled substance
Confrontation Clause (admission of recorded statements by non-testifying Robert and Agent Charles)	Admission prevented cross-examination of declarants about meaning of “candy” and agent prompting	Robert’s question to Liriano was admitted for context (not for its truth); any error from admitting Charles’s prompting was waived or harmless beyond a reasonable doubt given the overall evidence and defense use of the tape	Affirmed — no Confrontation Clause reversal; context exception and harmlessness apply
Prosecutorial misconduct in rebuttal (arguing "candy" was a code word and invoking "veteran agents")	Prosecutor introduced facts not in evidence and relied on knowledge unavailable to the jury, infecting a close case and warranting a new trial	Closing argument invited permissible inferences from the record; prosecutor did not assert extrinsic facts as proved evidence; remarks were isolated and jury instructed that argument is not evidence	Affirmed — remarks were permissible inference, isolated, and not prejudicial enough to require new trial (dissent would reverse)
Admission of Montreal business card	Card was irrelevant and should have been excluded	Card was probative because other conspirators were Canadian and wallet also linked to Akwesasne; relevance need only move inquiry forward	Affirmed — card was relevant and admissible

Key Cases Cited

Davis v. United States, 717 F.3d 28 (1st Cir. 2013) (standard for reciting facts in sufficiency review)
Paret-Ruiz v. United States, 567 F.3d 1 (1st Cir. 2009) (elements of conspiracy and proof of agreement)
Santiago v. United States, 566 F.3d 65 (1st Cir. 2009) (informant’s statements admissible as context, not for truth)
Burgos v. United States, 703 F.3d 1 (1st Cir. 2012) (government need prove defendant knew conspiracy involved a controlled substance but not the exact substance)
Cianci v. United States, 378 F.3d 71 (1st Cir. 2004) (waiver by failing to propose redactions to tapes)
Cabrera-Rivera v. United States, 583 F.3d 26 (1st Cir. 2009) (harmlessness analysis for Confrontation Clause errors)
Crawford v. Washington, 541 U.S. 36 (U.S. 2004) (testimonial hearsay and confrontation doctrine)
O’Shea v. United States, 426 F.3d 475 (1st Cir. 2005) (limits on prosecutor relying on evidence not before jury during closing)