UNITED STATES of America, Appellee, v. Junior H. De La CRUZ-FELICIANO, Sandri Rijo, Defendants, Appellants.
Nos. 13-1593, 13-1601.
United States Court of Appeals, First Circuit.
May 13, 2015.
786 F.3d 78
Because the inquiry “require[s] the particular circumstances of [the] case to drive the analysis,” Lane, 726 N.W.2d at 383, we decline to undertake it now. The District Court never considered any of the relevant factors—or made findings with respect to them—for the simple reason that it held that the searches by the Puerto Rico police did not violate the Fourth Amendment. Thus, we lack sufficient information to determine whether D.M.C.‘s consent was obtained by exploitation of the underlying illegality. As those are facts that may be discernible in an evidentiary hearing, we thus vacate and remand so the District Court in the first instance may consider the factors that Brown and Finucan identify.
however, the District Court should decide the taint issue in Cordero‘s favor, then the District Court must decide which, if any, evidence the government seeks to introduce must be suppressed in consequence of that tainted relationship. But given that those are issues about which we lack sufficient facts to determine, the District Court should only decide them following an evidentiary hearing on the matter.
IV.
For the foregoing reasons, we vacate the District Court‘s suppression ruling. On remand, if the District Court should find that the Puerto Rico police‘s unlawful searches did not taint the federal authorities’ consent-based search, then the District Court must decide which, if any, of the government‘s evidence stemmed solely from the Puerto Rico police‘s searches. If,
Felicia H. Ellsworth, with whom Eric F. Fletcher, Howard M. Shapiro, and Wilmer
Hector E. Ramirez-Carbo, Assistant United States Attorney, with whom Rosa Emilia Rodriguez-Velez, United States Attorney, Nelson Perez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and John A. Mathews II, Assistant United States Attorney, were on brief, for appellee.
Before LYNCH, Chief Judge, TORRUELLA and RIPPLE,* Circuit Judges.
RIPPLE, Circuit Judge.
Junior H. De La Cruz-Feliciano (“De La Cruz“) and Sandri Rijo were charged with, and convicted of, conspiring to possess with intent to distribute five kilograms of cocaine and aiding and abetting others to do the same. They now appeal their convictions, alleging various procedural and evidentiary errors. For the reasons set forth in this opinion, we affirm the judgments of the district court.
I
BACKGROUND
This case involves a conspiracy to smuggle over 900 kilograms of cocaine into Santa Isabel, Puerto Rico. Eduardo Ubiera and Juan Baltazar orchestrated the operation. They recruited Francisco “Sandy” Navarro-Reyes (“Navarro“) and Gary Brito-Gonzalez (“Brito“) to transport the cocaine, via a motorboat, from a “mother ship” at sea to Puerto Rico. The operation, however, did not run smoothly. While at sea, Navarro and Brito ran out of fuel and were unable to make it back to shore. At that point, according to government witnesses, Mr. De La Cruz was recruited to take another craft out to rendezvous with and refuel the stranded motorboat.
Mr. De La Cruz successfully delivered the fuel to the stranded motorboat. While still at sea, however, his own craft developed mechanical problems. Stranded at sea, Mr. De La Cruz and another individual aboard the vessel used a satellite phone to call for help. According to Freddy Altagracia-Medina (“Altagracia“), a codefendant, Mr. De La Cruz had requested the satellite phone before departing in order to communicate with the stranded motorboat. The United States Coast Guard found Mr. De La Cruz‘s vessel adrift approximately sixty miles from shore and rescued its crew. Coast Guard agents questioned the men about their satellite phone. According to Agent Christopher David Xirau, the men claimed to have tossed the phone overboard because it had become wet.
Meanwhile, traveling in their refueled motorboat, Navarro and Brito reached the shore with the drugs on January 26, 2012, three days after the planned delivery date. Awaiting their arrival were several individuals recruited to help unload the motorboat. Mr. Rijo was among this group. According to government witnesses, he originally planned to serve only as a lookout; however, due to the motorboat‘s late arrival, he instead ended up helping to unload the cocaine from the motorboat into a Nissan Armada for transport to San Juan.
Following a tip from a confidential informant, law enforcement anticipated the January 26 delivery and were surveilling the area throughout the night. They observed several individuals unloading the drugs from the motorboat into a vehicle, but were unable to visually identify any of those involved in the operation. Two other vehicles were present at the scene. Of-
On February 1, 2012, a grand jury returned an indictment, charging Mr. Rijo, Mr. De La Cruz, and their twelve codefendants with conspiring to possess with intent to distribute five kilograms of cocaine, in violation of
II
DISCUSSION
A. Mr. De La Cruz
On appeal, Mr. De La Cruz raises only one argument. It concerns the district court‘s questioning of Agent Xirau of the United States Coast Guard. At trial, the agent testified about the rescue of Mr. De La Cruz aboard the vessel that had gone adrift. Agent Xirau stated that he had asked Mr. De La Cruz and the other individual aboard the vessel about the satellite phone that they had used to call the Coast Guard. During the agent‘s testimony, on the fourth day of a six-day trial, the following exchange took place:
THE GOVERNMENT: I will ask you to clarify, when you refer to one of the two individuals on the boat, what specifically as to each individual they said, if anything?
AGENT XIRAU: Roger that.
THE GOVERNMENT: I was asking you about Junior De la Cruz, if upon you questioning him did he answer anything to you?
AGENT XIRAU: That was the only question that I remember him specifically giving me an answer.
THE GOVERNMENT: What about the other individual?
AGENT XIRAU: I don‘t remember his name. When I say they, I could mean either one or the other, I don‘t remember who at time who was the one that gave answers to the several questions we asked.
THE COURT: But were questions generally answered?
AGENT XIRAU: Yes, ma‘am.
THE COURT: Any of them express a disagreement with what the other was saying at the time?
AGENT XIRAU: No, ma‘am.4
Defense counsel objected to the district court‘s questioning. In particular, counsel asserted that the questions conveyed that
Following the district court‘s cautionary instruction, Agent Xirau then testified that Mr. De La Cruz and the other individual aboard the vessel had offered a strange explanation for no longer possessing the satellite phone that they had used to call for help. According to the agent, the men had told him that they threw the satellite phone overboard because it had become wet. The agent described this explanation as “odd.”8
Mr. De La Cruz now contends that the district court‘s questioning of Agent Xirau evinces judicial bias in violation of his right to due process of law. “When addressing allegations of judicial bias, we consider whether the comments were improper and, if so, whether the complaining party can show serious prejudice.” United States v. Ayala-Vazquez, 751 F.3d 1, 24 (1st Cir.2014) (internal quotation marks omitted). We assess statements in light of the record as a whole, not in isolation. Id.
In assessing this claim of judicial bias, our starting point is the basic principle that “there is nothing inherently improper about a judge posing questions at trial.” Id. Indeed, as we have previously observed, a court “has the prerogative, and at times the duty, of eliciting facts [it] deems necessary to the clear presentation of issues.” United States v. Rivera-Rodriguez, 761 F.3d 105, 111 (1st Cir.2014) (quoting United States v. Paz Uribe, 891 F.2d 396, 400 (1st Cir.1989)); see also
Even if a comment is improper, however, a defendant also must show that the judicial intervention resulted in “serious prejudice.” Rivera-Rodriguez, 761 F.3d at 112. As we recently have observed, this burden is comparable to demonstrating prejudice under plain error review. See id. In other words, “improper judicial intervention ‘seriously prejudice[s]’ a defendant‘s case when we find that there
Here, Agent Xirau testified that he could not remember who, between Mr. De La Cruz and the other individual aboard the vessel, had answered his questions regarding the satellite phone. The district court then asked whether either of the men “express[ed] a disagreement with what the other was saying at the time.”9 This question, Mr. De La Cruz contends, “conveyed to the jury that the defendant” was “in tacit agreement with any answers to the question about the satellite phone,” thus “creat[ing] ‘cover’ for the government to attribute the satellite phone to” him.10
We perceive no error in the district court‘s remarks. The court‘s inquiry was neither tinged with partiality nor suggestive of the court‘s stance on Mr. De La Cruz‘s guilt. Rather, this inquiry merely clarified an ambiguity in Agent Xirau‘s testimony. That the resulting clarification was adverse to Mr. De La Cruz‘s case is not, without more, indicative of judicial bias. See Martin, 189 F.3d at 554. In any event, the court‘s remarks, which came on the fourth day of a six-day trial and were followed by an appropriate cautionary instruction, did not seriously prejudice Mr. De La Cruz‘s case. See Ayala-Vazquez, 751 F.3d at 25-26.
B. Mr. Rijo
Mr. Rijo raises three arguments on appeal. First, he contends that the Government violated its duty under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to disclose errors in an investigative report prior to his counsel‘s opening statement. Second, he submits that the district court erred in admitting evidence of his prior bad acts. Finally, he contends that the Government‘s closing argument inaccurately described his role in the offense, thus resulting in prejudice that warrants a new trial.11 We address these issues in turn.
1.
Mr. Rijo first submits that the Government committed a Brady violation by failing to disclose errors in a DEA Report of Investigation—known as a “DEA 6“—prior to defense counsel‘s opening statement. The DEA 6 at issue was prepared by Agent William Rosario and summarized statements made by Altagracia. The DEA 6 contained several erroneous statements due to the agent‘s confusion of Sandri Rijo, the defendant, with Sandy Navarro. In particular, the report erroneously stated that Mr. Rijo, rather than Navarro, was on the motorboat with Brito and had helped to transport the drugs from the “mother ship” to shore. Agent Rosario also created handwritten notes before preparing the DEA 6. Those notes, however, were partially in Spanish and contained at least one
The Government turned over the DEA 6 and the agent‘s handwritten notes to defense counsel during pretrial discovery. The Government also disclosed its plans to call Altagracia as a witness to testify that Mr. Rijo was on the shore during the delivery and helped to unload the drugs.
Before opening statements, defense counsel informed the district court and the Government of his intent to attack Altagracia‘s credibility, in part by claiming that Altagracia had offered three different accounts of the relevant events. One of those accounts was premised on the erroneous statements in Agent Rosario‘s DEA 6. Defense counsel never explicitly told the Government of his intent to rely on those statements.
During opening statements, Mr. Rijo‘s counsel presented a defense premised in large part on impeaching the Government‘s three main witnesses, one of whom was Altagracia. Defense counsel presented his attack on Altagracia‘s credibility as follows:
[Altagracia] has given the government at least three different versions as to what happened. The first time he gave a version to the government when he was originally caught, he said that he had been fishing since January 23. Now, that same witness did not mention anyone else at that time, he said I was fishing since January 23, three days before they were caught. Then, in April when he is already negotiating with the government and trying to get them to give him a good deal, he says that on January 22, I took Sandri Rijo to Fajardo, my client, to Fajardo to get on a boat to meet the mother boat, or the boat bringing in the drugs closer to Puerto Rico, to go there. And he also says that he did not see Sandri Rijo again until dawn on January 26 when he came in piloting the boat that brought the drugs in.
Now, the third version that he gave, you just heard from the prosecutor. Notably when he gave the version of April he did not place Sandri Rijo anywhere else between the 22 to the 26, because Sandri Rijo was out on the boat, the mother boat. What do we say here, as I said you already heard the government give us a preview as to that.12
After opening statements, the Government informed defense counsel about the mistakes in its DEA 6. Defense counsel in turn moved for a mistrial, claiming that his “client[‘s] right to a fair trial ha[d] been compromised.”13 In particular, defense counsel expressed concern that the Government‘s late disclosure undermined the defense strategy that he had presented to the jury during opening statements.
The district court denied Mr. Rijo‘s motion. It concluded that defense counsel‘s ability to present Mr. Rijo‘s defense before the jury had not been impaired because he still could attack Altagracia‘s credibility at trial and could call Agent Rosario to testify about the DEA 6. Further, the court held that Agent Rosario‘s handwritten notes made clear that “the person identified was Sandy N[a]varro,” and that the “inaccuracy in the DEA 6... could be gathered by reviewing the [agent‘s] rough notes.”14 Defense counsel did not call Agent Rosario as a witness at trial.
Mr. Rijo now contends that the Government violated its duty under Brady
Brady requires that the Government disclose “evidence favorable to an accused” that is “material either to guilt or to punishment.” 373 U.S. at 87. In order to prevail on a Brady claim, a defendant must show that: (1) evidence was suppressed; (2) the evidence was favorable to the accused; and (3) the evidence was material to either guilt or punishment. See Strickler v. Greene, 527 U.S. 263, 281-82 (1999). With regard to the first prong, we do not consider favorable evidence suppressed “if the defendant either knew, or should have known[,] of the essential facts permitting him to take advantage of any exculpatory evidence.” Ellsworth v. Warden, 333 F.3d 1, 6 (1st Cir.2003) (quoting United States v. LeRoy, 687 F.2d 610, 618 (2d Cir.1982)). As for the second and third prongs, “[e]vidence is ‘favorable to the accused’ if it is either exculpatory or impeaching in nature and ‘material’ if there is a reasonable probability that, had it been disclosed, the result of the proceeding would have been different.” United States v. Prochilo, 629 F.3d 264, 268 (1st Cir.2011).
Brady also applies in cases where the Government delays disclosure of relevant evidence. In such cases, the defendant further must show “that the delay prevented defense counsel from using the disclosed material effectively in preparing and presenting the defendant‘s case.” United States v. Van Anh, 523 F.3d 43, 51 (1st Cir.2008). To carry this burden, “[t]he defendant must at a minimum make a ‘prima facie’ showing of a plausible strategic option which the delay foreclosed.” Id.
The parties’ dispute largely centers on the timing of the Government‘s disclosure. Ruling for the Government, the district court determined that Agent Rosario‘s handwritten notes, disclosed along with the DEA 6, adequately informed Mr. Rijo of the errors in the DEA 6. Further, the court held that, even if the Government‘s disclosure was late, Mr. Rijo was not prejudiced by the delay because he still could call Agent Rosario as a witness to testify about the errors at trial. We are troubled by the district court‘s first rationale, but do agree that the second has merit.
As we noted earlier, evidence is not suppressed within the meaning of Brady “if the defendant either knew, or should have known[,] of the essential facts permitting him to take advantage of” the evidence. Ellsworth, 333 F.3d at 6 (emphasis added) (quoting LeRoy, 687 F.2d at 618). “The ‘should have known’ standard refers to trial preparation,” and will generally impute to the defendant knowledge which he otherwise would have possessed from a diligent review of the evidence in his control. See id. at 7; see also United States v. Pandozzi, 878 F.2d 1526, 1529 (1st Cir. 1989) (”Brady does not require the government to turn over information which, with any reasonable diligence, the defendant can obtain himself.” (alterations omitted) (quoting Jarrell v. Balkcom, 735 F.2d 1242, 1258 (11th Cir.1984))).
We agree with the district court, however, that the Government‘s late disclosure of this evidence did not prevent defense counsel from effectively using it at trial. The Government disclosed these errors after opening statements on the first day of trial, Monday, September 10, 2012. The Government rested its case at the end of the day on Friday, September 14. The defense rested on Tuesday, September 18, without calling a single witness. Neither party called Agent Rosario to testify even though the district court, in denying Mr. Rijo‘s motion for a mistrial, explicitly had advised Mr. Rijo that he could do so. Defense counsel thus had seven days—three of which were unencumbered by trial—to use this evidence in preparing and presenting Mr. Rijo‘s case.
Mr. Rijo has offered no reason why this interval was not enough time for defense counsel to make effective use of the disclosed material, nor could he. See United States v. Peters, 732 F.2d 1004, 1009 (1st Cir.1984) (holding that the Government‘s belated disclosure of impeachment evidence, which was “short, uncomplicated, and fairly predictable,” did not violate Brady where the defendants had “two full days, including one nontrial day, in which to prepare to cross-examine” the witness). To the extent that this evidence was exculpatory, its relevance to Mr. Rijo‘s case was straightforward: it undermined the thoroughness and good faith of the Government‘s investigation. This defense is neither complicated nor inconsistent with the defense strategy pursued by Mr. Rijo. Seven days afforded ample time for its preparation. See id. On these facts, we cannot conclude that the Government‘s belated disclosure of this evidence prevented defense counsel from using it in preparing and presenting Mr. Rijo‘s case.
2.
Mr. Rijo next submits that the district court erred, under Federal Rules of Evidence 403 and 404(b), in admitting (1) testimony by Altagracia that Mr. Rijo had threatened him while in prison and (2) testimony by Agent Jesus Marrero that drug-trafficking organizations would look for “experienced people” to handle a shipment of the size involved in this case. We review for abuse of discretion a district court‘s decision regarding the admissibility of evidence under Rules 403 and 404(b). United States v. Lugo Guerrero, 524 F.3d 5, 14 (1st Cir.2008).
We start with the admission of Altagracia‘s testimony. At trial, Mr. Rijo‘s defense counsel cross-examined Altagracia about his limited relationship with Mr. Rijo. In particular, defense counsel asked when, if ever, he had spoken with Mr. Rijo. After first describing how they had spoken “in the field” during their criminal activities, Altagracia then responded that Mr. Rijo had threatened him while in prison:
When I was at the 2B unit, Mr. Sandri Rijo yelled at me through the—in other words I was playing basketball out in the yard and he yelled at me and said that if I turned around with the authorities he was going to have my family kidnaped [sic], that he was going to also have me beat up and that he had already given orders to have my family kidnaped [sic].17
Defense counsel objected to this unexpected testimony, but the district court overruled his objection, noting that defense counsel “had plenty of time to stop th[e] witness.”18
The Government contends that the district court did not err in admitting evidence of Mr. Rijo‘s threat, given that defense counsel was the one who elicited this testimony. We agree. As we have acknowledged previously, a defendant cannot complain about the admission of testimony directly responsive to a question posed by defense counsel. See United States v. Rivera-Rivera, 477 F.3d 17, 20 (1st Cir.2007) (“Rivera cannot persuasively complain about the admission of this evidence, given that it was the defense—not the government—which elicited it in the course of its cross-examination....“); United States v. Lizardo, 445 F.3d 73, 84 (1st Cir.2006) (noting that where a defendant elicited challenged testimony on cross-examination, he could not “contest his own invited error” on appeal); United States v. Cresta, 825 F.2d 538, 552 (1st Cir.1987) (“It is apparent from the record that defense counsel did elicit the response, although perhaps inadvertently, and cannot now complain of the alleged error.“). Here, defense counsel asked Altagracia whether he ever had spoken with Mr. Rijo. In response, Altagracia stated that Mr. Rijo verbally had threatened him while in prison. Because this answer was directly responsive to defense counsel‘s open-ended question, Mr. Rijo cannot now complain of its admission on appeal.
In any event, Altagracia‘s testimony would have been admissible even if elicited by the Government. As the Gov-
Mr. Rijo‘s Rule 403 challenge is equally unavailing. In prior cases involving the application of Rule 403 to evidence of a defendant‘s threats against a government witness, we have considered a variety of factors, including “whether the jury heard graphic details of how the threat would be carried out, whether the threat was made as an emotional or impulsive reaction, and how important the evidence about the threat was to the Government‘s case.”19 Id. at 134 (citations omitted). Here, the district court certainly did not abuse its discretion in admitting the evidence. Altagracia‘s testimony did not involve graphic or sensational details of the content of Mr. Rijo‘s threat. Further, as we noted earlier, this evidence is probative of Mr. Rijo‘s consciousness of guilt, which, given his defense that he was essentially in the wrong place at the wrong time, was highly relevant to the Government‘s case. For these reasons, we cannot conclude that the probative value of Altagracia‘s testimony was outweighed, much less substantially so, by the risk of unfair prejudice.
Turning to Agent Marrero‘s testimony, at trial the agent offered testimony about cocaine sales in Puerto Rico and the practices of drug smugglers. In particular, he testified that a drug-trafficking organization would look for “experienced people” to handle a shipment of the size involved in this case.20 Mr. Rijo contends that this testimony ran afoul of Rules 404(b) and 403 by implying that he had prior experience in drug trafficking. Because Mr. Rijo did not raise these objections before the district court, our review is for plain error. See United States v. Rodriguez-Adorno, 695 F.3d 32, 38 (1st Cir.2012).
With respect to his Rule 404(b) objection, Mr. Rijo‘s argument fails at its first step.
In his Rule 403 objection, Mr. Rijo contends that Agent Marrero‘s testimony suggests that Mr. Rijo was an experienced drug trafficker, thus giving the impression that he had participated in such acts in the past and was likely to do so in the future. This argument falls wide of the mark. The agent‘s testimony simply stated that drug dealers who undertake sea-to-shore delivery operations realize the high risk of such an undertaking. Consequently, they employ only individuals who are committed to the success of the operation and who have the experience necessary to bring the venture to a successful conclusion. This testimony was both relevant and probative; it rebutted Mr. Rijo‘s claim that he was
3.
Finally, Mr. Rijo contends that the Government‘s closing argument inaccurately described his role in the offense, thus resulting in prejudice warranting a new trial. Mr. Rijo‘s argument is premised on the original transcript filed in this case. That transcript shows four instances in which the Government incorrectly referred to Sandy Navarro as either “Sandi Rijo” or “Sandri Rijo” during its closing argument. These misstatements, assuming they occurred, portrayed Mr. Rijo as considerably more involved in the conspiracy than the evidence would otherwise show.
During the pendency of this appeal, the district court, acting pursuant to
Following the district court‘s order, Mr. Rijo filed a supplemental brief in this court asking us to reject the revised transcript. He also filed a motion for reconsideration in the district court. In both filings, Mr. Rijo raised several significant arguments attacking the reliability of the revised transcript.
Because Mr. Rijo was not afforded an opportunity to respond to the Government‘s
On remand, the district court ordered its court reporter to submit a certified copy of her stenographer‘s notes from the Government‘s closing argument as well as an affidavit explaining how those notes support the revised transcript. The court reporter did so, explaining in her affidavit that her stenographer‘s notes showed that the Government had not confused Navarro with Mr. Rijo during its closing. Rather, as the court reporter explained, she had simply mistyped “Rijo” instead of “Navar-
After receiving the court reporter‘s notes and accompanying affidavit, the district court held a hearing on Mr. Rijo‘s motion and, shortly thereafter, denied the motion in a written order. The court based its decision on the court reporter‘s filings, the parties’ pleadings and exhibits, and the court‘s “own recollection and notes of [Mr. Rijo‘s] criminal trial.”21 Based on this evidence, the court concluded that it was “100 percent certain that the revised transcript [was] correct.”22
The district court‘s order thoroughly and persuasively addressed each of Mr. Rijo‘s arguments. In light of the court‘s careful consideration of this issue, we cannot conclude that its decision to certify the revised transcript as part of the record on appeal was plainly unreasonable. See id. Accordingly, we accept the revised transcript as part of our record, and thus conclude that the Government did not confuse Sandy Navarro with Mr. Rijo during its closing argument.
III
CONCLUSION
The judgments of the district court are affirmed.
AFFIRMED