UNITED STATES OF AMERICA, Aрpellee, v. José Rodriguez-Marrero, Defendant, Appellant. UNITED STATES OF AMERICA, Appellee, v. Omar F. Genao-Sanchez, Defendant, Appellant. UNITED STATES OF AMERICA, Appellee, v. Luis Roldan-Cortes, Defendant, Appellant.
Nos. 01-1647, 02-1462, 02-1707
United States Court of Appeals For the First Circuit
November 5, 2004
Hon. José A. Fusté, U.S. District Judge
Volume I of II; APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
Lydia Lizarribar-Masini for appellant Omar Genao-Sanchez.
Raymond L. Sanchez Maceira on brief for appellant José Rodriguez-Marrero.
Linda George for appellant Luis Roldan-Cortes.
Thomas F. Klumper, Assistant United States Attorney, with whom H.S. Garcia, United States Attorney, and Sonia I. Torres, Assistant United States Attorney, were on brief for appellee.
The defendants raise a number of challenges to their convictions. In the end, we find that one challenge is meritorious -- the argument of Omar Genao-Sanchez that the district court erred in admitting testimonial hearsay against him in violation of the recent Supreme Court decision in Crawford v. Washington, 124 S. Ct. 1354 (2004), a case decided after the completion of this trial. Although we affirm Genao-Sanchez‘s drug conspiracy conviction, we conclude that the erroneous admission of the hearsay testimony was not harmless with respect to his convictions for conspiracy to commit murder and for aiding and abetting murder. Accordingly, we vacate those convictions. We affirm the convictions and sentences of the other defendants.
I.
We present facts here in the light most favorable to the verdict to convey the background of the case. See United States v. Reeder, 170 F.3d 93, 97 (1st Cir. 1999). We will provide
A. The Conspiracy
As noted, the defendants were members of a drug conspiracy that smuggled large amounts of cocaine and marijuana from South America into southwestern Puerto Rico for itself and other organizations. The drugs were dropped from airplanes at sea and retrieved by the defendants or transferred directly by boat from the defendants’ foreign suppliers. The conspirators used a broad array of radios, global positioning system (GPS) receivers, night vision glasses, police scanners, modified cellphones and powerful speedboats to protect their shipments. They also stationed lookouts at various points on the water and near an airport used by the United States Customs Service to protect the loads from raids by law enforcement and rival drug gangs.
After the defendants brought the drugs on shore, the drugs were shipped by truck either to a secure storage location (frequently one of the conspirators’ farms) or directly to the individual or organization who had hired the defendants. The individual conspirators received cash or a portion of the drug shipment as payment for their participation, and they distributed the drugs they received to local dealers at drug points throughout the area.
Raul Santodomingo-Romero (“Santodomingo“) led the drug organization until he was arrested on money laundering charges in 1994; his second-in-command, Victor M. Valle-Lassalle, a/k/a “Manolo” (“Valle-Lassalle“), then took over.1 Defendant-appellant Luis Roldan-Cortes, a/k/a “Wisi” (“Roldan“), was Valle-Lassalle‘s right hand man and the godfather to his daughter. The two owned a drug distribution point, giving them the exclusive right to distribute drugs in the Ducos housing project in Aguadilla. Although Valle-Lassalle eventually ended this partnership because he thought that Roldan was unfairly excluding him from some of the side deals that Roldan was arranging, they continued to cooperate together in their smuggling venture. Roldan negotiated at least one drug shipment in the Dominican Republic and participated in the execution of a number of others. His specific responsibilities included loading and unloading and captaining the drug boats, coordinating “security” for the shipments, and inventorying and selling drugs to small distributors. He also helped to arrange the murder of a government informant, James Martin-Rodriguez, a/k/a “Kiri” (“Martin“), who was a member of the conspiracy until he began cooperating with federal investigators.
José Rodriguez-Marrero, a/k/a “Zurdo” (“Rodriguez“), the last of the three appellants, joined the conspiracy when Valle-Lassalle offered to let him participate in some drug shipments if he helped to murder Edward Llaurador Rodriguez (“Llaurador“), another co-conspirator turned govеrnment informant. Although the government did not introduce evidence that Rodriguez participated in any shipments, its witnesses testified that Rodriguez was present when Valle-Lassalle negotiated shipments and that he would have participated in two shipments if the police had not forestalled them. The first of these shipments was supposed to be a two thousand pound load of cocaine that Valle-Lassalle negotiated
Javier E. Soto-Alarcon, a/k/a “Chester” (“Soto“), was a mid-level leader in the conspiracy who joined the drug gang after he started dating Valle-Lassalle‘s sister. Soto participated in a number of drug loads and in Llaurador‘s murder. After Soto‘s wife (he had since ended his relatiоnship with Valle-Lassalle‘s sister) was shot in a drug-related attack, Soto decided to turn himself in to the authorities. He agreed to cooperate with the government, allowing it to record his conversations, helping government agents to infiltrate the organization, and testifying against the others at trial.
Ramos was a member of the conspiracy before he was arrested and decided to become a government informant. He helped to smuggle a number of large loads of marijuana and cocaine and sold some of the cocaine at a drug point in the Montana housing project in Aguadilla. He also participated in Martin‘s murder.
Other members of the drug conspiracy included José Hernandez-Jimenez, a/k/a “Chelo” (“Hernandez“), who was murdered by a rival drug gang, and Nicholas Peña Gonzalez (“Peña“) and Anibal
C. Murders Undertaken in Furtherance of the Conspiracy
The drug gang protected its distribution empire with force, killing or seriously wounding suspected informants and rival gang members. Three of those murders played important roles in the cоnspiracy trial because they were charged as substantive crimes and as overt acts in furtherance of the drug conspiracy.
1. Martin‘s Murder
On November 16, 1992, Martin was arrested with fifteen bales of cocaine belonging to the drug ring. This was the second time that he was arrested for a drug crime, and he agreed to cooperate with the United States Customs Service. Suspecting that Martin had become an informant, Santodomingo and Valle-Lassalle decided to have him murdered in a parking lot at the Ducos housing project. On May 20, 1993, after receiving a phone call from Roldan alerting him to Martin‘s arrival at the scene, Santodomingo dropped Ramos off at the housing project, where Ramos joined Roldan and Pagan. Roldan identified Martin as the intended murder victim, and told Ramos and Pagan that Martin was at the housing project that day because he was expecting to pick up some money owed to him for drugs. Martin approached the group, and Ramos and Pagan walked off to a corner of the parking lot. After speaking with Roldan for a short while, Martin walked back to his automobile. As he was about
2. Caballo‘s Murder
In February, 1996, five members of the drug organization stole approximately thirty kilograms of cocaine that they were smuggling into Puerto Rico on behalf of a Colombian drug operation. Believing that Caballo had threatened to inform the Colombians about the theft, Valle-Lassalle arranged to have him killed. According to the government, Genao and another member of the drug ring, Nicholas Peña Gonzalez, picked Caballo up at his house on July 15, 1996, with help from Llaurador. Peña shot Caballo in a remote area near Yauco, Puerto Rico. The group then threw Caballo‘s body in the back of his truck. They planned to drive the truck to Valle-Lassalle‘s farm to dismember and dispose of the body (and to disassemble the truck) when the truck became stuck in a muddy ditch and they were forced to abandon it on the side of the road. As they were abandoning the truck, Caballo tried to get up and asked Peña why he shot him. Peña answered, “Because you‘re a mother fucker,” and shot him two more times. The police found the truck and Caballo‘s body the next morning.
Later that month, Llaurador told local authorities in Ponce about Caballo‘s murder, and provided sworn statements to the prosecutor regarding the murder on July 31 and September 13 of that year (1996). He also became a confidential informant for the federal Drug Enforcement Administration (“DEA“) on September 3, 1996. The local police arrested Genao and Valle-Lassalle for Caballo‘s murder based on Llaurador‘s statements. They issued a warrant for Peña‘s arrest, but he fled before they could apprehend him. The criminal complaint, which was given to both Genao and Valle-Lassalle when they were arrested, identified Llaurador as an informant.
Valle-Lassalle was released on bail subsequent to his arrest. Having seen Llaurador‘s name on the criminal complaint, Valle-Lassalle knew that Llaurador had “snitched” to the police about Caballo‘s murder. Telling Soto that Llaurador would likely “snitch” on all of them, he recruited Soto, Rodriguez, and two other members of the conspiracy to find Llaurador and murder him. The men found him on October 13, 1996 and bound him with wire. Rodriguez proceeded to behead Llaurador with a machete while he was still alive. They dismembered his body, placed the various parts in plastic garbage bags, and threw the bags over a cliff at an abandoned dump site. Valle-Lassalle watched the murder and told
D. Arrests and District Court Proceedings
On December 17, 1997, the government unsealed a two count indictment against Genao, Rodriguez, Valle-Lassalle, Peña, and four others. Roldan was not charged in that initial indictment. The government obtained a twelve count second superseding indictment on July 6, 2000 against Genao, Rodriguez, Valle-Lassalle, Peña, Roldan, Pagan, and six others.2 The twelve defendants were charged with: (1) conspiracy to possess with the intent to distribute morе than five kilograms of cocaine and multi-hundred pound quantities of marijuana; (2) conspiracy to commit firearms murder in relation to a drug trafficking offense (Caballo); (3) aiding and abetting firearms murder in relation to a drug trafficking offense (Caballo); (4) aiding and abetting the murder of a witness or informant (Llaurador); (5) aiding and abetting murder while
| Count | Summary | Appellant(s) |
|---|---|---|
| 1 | The drug conspiracy | Genao, Rodriguez, and Roldan |
| 2 | Conspiracy to commit firearms murder in furtherance of a drug crime (Caballo) | Genao |
| 3 | Aiding and abetting firearms murder in furtherance of a drug crime (Caballo) | Genao |
| 4 | Aiding and abetting murder of a witness (Llaurador) | Rodriguez |
| 5 | Aiding and abetting murder in furtherance of a drug crime (Llaurador) | Rodriguez |
| 7 | Aiding and abetting firearms murder in furtherance of a drug crime (Martin) | Roldan |
| 8 | Aiding and abetting murder of a witness (Martin) | Roldan |
| 9 | Aiding and abetting murder while engaging in a drug crime (Martin) | Roldan |
E. The Trial
Of the twelve indicted defendants, only the three appellants here pled not guilty and proceeded to trial. The trial began on September 7, 2000. Roldan‘s and Genao‘s attorneys repeatedly informed the court on the first day of trial that they were unprepared to try the case, and both requested continuances. The court denied their motions.
The government presented testimony from more than forty witnesses, including Commonwealth investigators, police officers, federal agents, eyewitnesses, and technical experts. The core of its case was built by two co-conspirators and cooperating witnesses, Soto and Ramos, each of whom testified for the greater part of a week. Soto began his testimony with a detailed first-hand account of Llaurador‘s murder, highlighting Rodriguez‘s participation in the killing and Valle-Lassalle‘s promise to reward
Ramos began his testimony by providing a first-person account of Martin‘s murder. He then named some of the key members of the conspiracy, explained how he knew them, and described their roles in the organization. He provided details on a number of the
Ramos also testified about the methods of drug distribution that he employed. He managed the drug point in the Montana housing project and sold the drugs that he bought or received as payment from Valle-Lassalle. He said that he
On October 10, 2000, the jury convicted the three defendants on all counts. On March 28, 2001, the district court sentenced Rodriguez to two life sentences for his two murder convictions, aiding and abetting murder of a witness (Llaurador) and aiding and abetting murder in furtherance of a drug crime (Llaurador). See
II.
A. Rodriguez‘s Claims
1. Specificity of the Indictment
Arguing that count four of the second superseding indictment (murder of a witness) did not provide sufficient details regarding the federal nexus of Llaurador‘s murder, Rodriguez argues that his conviction should be vacated. The Federal Rules of Criminal Procedure generally require defendants to raise objections to indictments prior to trial. See
2. Sufficiency of the Evidence
Rodriguez argues that the government failed to introduce sufficient evidence to support two counts of his conviction, the drug conspiracy charge (count one) and the aiding and abetting murder of a witness charge (count four).4 We review a sufficiency of the evidence claim de novo, “eschewing credibility judgments and
a. Conspiracy
“To prove the elements of the crime of conspiracy, the Government must show the existence of a conspiracy, the defendant‘s knowledge of the conspiracy, and the defendant‘s voluntary participation in the conspiracy.” United States v. Llinas, 373 F.3d 26, 30 (1st Cir. 2004) (internal quotation marks omitted). Proof of the defendant‘s participation in the conspiracy must include proof that he intended to commit the underlying substantive offense. Sepulveda, 15 F.3d at 1173. “Such proof may consist of circumstantial evidence, including inferences from surrounding circumstances, such аs acts committed by the defendant that furthered the conspiracy‘s purposes. The government need not prove that a co-conspirator knew all of the details or participated in all of the objectives of the plan.” Llinas, 373 F.3d at 30 (internal quotation marks omitted). Since Rodriguez does not contest the existence of a drug conspiracy, we need only consider whether the government proved his participation in the conspiracy.
Rodriguez claims that the only evidence linking him to the drug conspiracy was Soto‘s testimony that Rodriguez was present
This argument reflects a highly misleading view of the evidence adduced at trial. In fact, Soto testified that Valle-Lassalle offered to allow Rodriguez to participate in this particular drug smuggling operation if he murdered Llaurador. Prior to the meeting, Soto told Rodriguez that Rodriguez‘s share of that drug shipment could be twenty to thirty thousand dollars, and Rodriguez remarked that he expected to receive “a good position” in the drug organization for committing the murder. His claim that he was innocently playing pool at Ayala‘s house without knowledge that a major narcotics deal was being negotiated simply does not withstand scrutiny. Given this testimony, we have no difficulty concluding that a jury could have found beyond a reasonable doubt that Rodriguez was part of the drug conspiracy.
b. Aiding and Abetting Murder of a Witness
Rodriguez also claims that the evidence that the government introduced to prove that he murdered Llaurador was insufficient to establish a violation of the Witness Protection Act, which states:
[W]hoever kills . . . another person, with intent to (A) prevent the attendance or
To establish a crime under the “law enforcement officer” section of the Act, the government must prove that:
(1) the defendant killed or attempted to kill a person; (2) the defendant was motivated by a desire to prevent the communication between any person and law enforcement authorities concerning the commission or possible commission of an offense; (3) that offense was actually a federal offense; and (4) the defendant believed that the person in (2) above might communicate with the federal authorities.
United States v. Stansfield, 101 F.3d 909, 918 (3d Cir. 1996). The Act explicitly relieves the government from having to prove that the defendant suspected that the witness would communicate to federal, as opposed to state, officials regarding the crime, see
The government easily met its burden here. Although Rodriguez repeatedly refers to Caballo‘s murder as a Commonwealth offense, the second superseding indictment lists the murder as a charged offense and identifies it as an overt act in furtherance of the federal drug conspiracy. The federal government, through the DEA, had opened an investigation into this conspiracy and had interviewed Llaurador prior to his murder. Rodriguez‘s claim that he did not realize that he was helping to conceal a federal crime by murdering Llaurador is irrelevant. See United States v. Applewhaite, 195 F.3d 679, 687 (3d Cir. 1999) (“All that [a parallel provision in the Witness Protection Act] requires is that the government establish that the defendants had the intent to influence an investigation that happened to be federal.“).
B. Genao‘s Claims
1. Newly Discovered Evidence
Genao first complains that the district court should have granted him a new trial under
Genao claimed in his
“A motion for new trial on the basis of newly discovered evidence will ordinarily not be granted unless the moving party can demonstrate that: (1) the evidence was unknown or unavailable to the defendant at the time of trial; (2) failure to learn of the evidence was not due to lack of diligence by the defendant; (3) the evidence is material, and not merely cumulative or impeaching; and
Peña testified that he was the triggerman in Caballo‘s murder and that Genao was not present at the murder scene. In fact, he testified that he did not meet Genao until the two were imprisoned together prior to their federal trial. When Genao‘s lawyer asked him why he had failed to present this testimony earlier, he answered:
Well, I was in negotiation [with the government]. I mean, at one point in time, I was thinking of fighting my case, you know, of going to trial in my case, but then I started to think a lot about Genao and the fact that he had nothing to do with [Caballo]‘s death. Because I really had never met Genao out in the street at all. I never saw him.
So when I finally made my agreement and I was already sentenced, I said, Well, I‘m going to help him out because he really had nothing to do with any of this killing, because I was the one who killed [Caballo], and the ones involved in [Caballo]‘s murder, the ones who were there for [Caballo]‘s murder, was me and [Llaurador], and we were the only ones who were there at the lake when [Caballo] was killed.
Valle-Lassalle said that Genao never assisted with any of the drug loads and that Genao had nothing to do with Caballo‘s murder. Even though Genao asked him in jail to say that he was not guilty, Valle-Lassalle said that he did not come forward with this evidence earlier because he was awaiting trial. Valle-Lassalle repeatedly refused to implicate some of his co-conspirators in the murders and drug smuggling operations, prompting the government to ask: “It goes against every grain of your being to testify and implicate anyone that‘s not a cooperator or a dead person in criminal conduct; isn‘t that correct?” Valle-Lassalle answered simply, “Yes.”
Santodomingo‘s testimony was less detailed. He stated that he met Genao through Ramos and that Genao did not do any drug work for him.
We have previously characterized post-sentencing exculpatory testimony of co-conspirators as being “inherently
2. Confrontation Clause
At trial, the government called Edgar Delgado García, a Puerto Rico Commonwealth judge who was the local prosecutor when Llaurador started cooperating with authorities prior to his murder. Judge Delgadо read two sworn statements that Llaurador had given to the police in the summer of 1996 regarding Caballo‘s murder. In the first statement, Llaurador provided a detailed account of the night of the murder, including the plan that Genao and Peña developed to trap Caballo; the manner in which they killed him; and the way in which Caballo‘s truck got stuck on the side of the road after the murder. In the second statement, Llaurador explained that Valle-Lassalle told him that he had given the order for Caballo‘s death because Caballo was going to tell the Colombians about the cocaine theft. Genao objected to the admission of this hearsay testimony against him immediately before Judge Delgado testified.
The argument over the admissibility of Llaurador‘s statements principally involved the application of the forfeiture by wrongdoing doctrine,6 which, as embodied in
As we recently noted, the Supreme Court‘s decision in Crawford v. Washington, 124 S. Ct. 1354 (2004), “changed the legal landscape for determining whether the admission of certain hearsay statements violates the accused‘s right to confront witnesses.”7 Horton v. Allen, 370 F.3d 75, 83 (1st Cir. 2004). Overturning earlier precedent that allowed a court to consider hearsay testimony against a criminal defendant if that testimony “bore particularized guarantees of trustworthiness,” see, e.g., Ohio v. Roberts, 448 U.S. 56, 66 (1980), the Crawford Court held that, absent other grounds for admissibility, the Confrontation Clause categorically bars the admission of testimonial hearsay unless the declarant is unavailable and the accused has had a prior opportunity to cross-examine the declarant. Crawford, 124 S. Ct. at 1374 (“Where testimonial evidence is at issue . . . the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.“). Although the Court left for another day a comprehensive definition of “testimonial” hearsay, it stated that “[w]hatever else the term covers, it
We conclude that Llaurador‘s signed confession, presented under oath to the prosecutor in Puerto Rico, is testimonial hearsay within the meaning given by the Supreme Court. See, e.g., United States v. Saget, 377 F.3d 223, 228 (2d Cir. 2004) (discussing the parameters of “testimonial hearsay” in light of Crawford). Since Genao did not have the prior opportunity to confront Llaurador regarding his statements, we conclude that, absent some independent ground for admissibility, it was a constitutional error for the court to admit Llaurador‘s statements against Genao.
b. Forfeiture by Wrongdoing
As noted, the government drew upon the forfeiture by wrongdoing doctrine in arguing to the district court that Llaurador‘s hearsay statements were admissible against Genao because he had acquiesced in Llaurador‘s murder. Forfeiture by wrongdoing is an independent ground for the admissibility of hearsay testimony that survives Crawford. See Crawford, 124 S. Ct. at 1370.
Under appropriate circumstances, the forfeiture by wrongdoing doctrine can provide an exception to the Confrontation Clause. See Crawford, 124 S. Ct. at 1370. But the glancing reference to the doctrine of forfeiture by wrongdoing in the government‘s brief does not give us any assistance in addressing this difficult waiver issue.8 “We believe it is apodictic that
Although the government argued wrongly that Llaurador‘s statements were admissible as declarations against penal interest, it failed to argue in the alternative that, if the statements were erroneously admitted, the error was harmless. See generally
Becаuse the government has not argued harmless error, we could simply deem the issue waived, as we did for the forfeiture by wrongdoing issue, and vacate the relevant convictions of Genao. However, as noted, we have discretion “to overlook the government‘s failure to argue that the admission of the challenged evidence, if error, was harmless, and that [we] may therefore consider the issue of harmlessness sua sponte.” Rose, 104 F.3d at 1414. Exercising this discretion “involves the balancing of many elements.” Id. at 1415. If our sua sponte harmless error analysis led us to affirm Genao‘s conviction, we would have to engage in a nuanced analysis of the appropriateness of that sua sponte review. Here, for the sake of completeness, and in light of our decision to vacate the
“The government, not the defendants, bears the burden of establishing harmlessness.” United States v. Casas, 356 F.3d 104, 121 (1st Cir. 2004), cert. denied sub nom. Segui-Rodriguez v. United States, 124 S. Ct. 2405 (2004). The analysis is case-specific, considering, “among other things, the centrality of the tainted material, its uniqueness, its prejudicial impact, the uses to which it was put during the trial, the relative strengths of the parties’ cases, and any telltales that furnish clues to the likelihood that the error affected the factfinder‘s resolution of a material issue.” Sepulveda, 15 F.3d at 1182.
We begin our harmless error analysis by describing the evidence implicating Genao in the murder of Caballo apart from Llaurador‘s hearsay statements. Ramos, the co-conspirator turned informant, described a conversation that he had with Genao in which Genao explained the course of events on the night of Caballo‘s murder. Genao explained to Ramos that Caballo wanted Peña to kill Llaurador because Caballo suspected Llaurador of stealing his all terrain vehicle (“ATV“). Genao joined Peña and Caballo in Caballo‘s white pickup truck to hunt for Llaurador. When they finally found Llaurador, Genao got in the car with him and explained that Caballo wanted to kill him but that he should not
The government offered some corroboration of Ramos‘s testimony implicating Genao in the murder of Caballo. Soto testified that Valle-Lassalle “told [him] what had happened with [Caballo], that it had been [Genao] and [Peña], and that he had to do it because of the Colombian thing.” Caballo‘s girlfriend testified that the last time that she saw Caballo was when he left her house with Peña and Genao on the night of his murder. She confirmed that Caballo‘s ATV had vanished and that the men brought weapons with them in Caballo‘s white pickup truck to search for Llaurador. Finally, Puerto Rico Police Agent Jorge Nazario Torres testified that he found Caballo‘s body in his pickup truck, which was stuck on the side of the road.
There is certainly some force to this evidence. If the issue before us was the sufficiency of the evidence to support the jury‘s finding that Genao engaged in a conspiracy to murder Caballo or that he aided and abetted the murder of Caballo, we would
Delgado testified that he put Llaurador under oath and asked him to tell him everything that he knew about Caballo‘s murder. Llaurador responded in detail. He said that he saw Caballo‘s truck stopped near his home at 2:00 AM on July 15, 2000. Knowing that Caballo was mad at him for stealing the ATV, Llaurador thought that Caballo was either looking for the ATV or was on his way to visit Llaurаdor‘s girlfriend. So he drove to his girlfriend‘s house to see if Caballo was there. He was not; however, Caballo eventually drove near the house, and Genao got out of Caballo‘s truck and asked Llaurador to take him to buy gasoline. While they were driving in Llaurador‘s truck, Genao explained that Caballo wanted Genao and Peña to kill him for stealing the ATV but that they were planning on killing Caballo instead because Caballo was going to “snitch” regarding the cocaine theft. Genao repeatedly reassured Llaurador that nothing was going to happen to
After meeting the other two at the arena, Genao and Llaurador drove to a lake with Peña and Caballo following behind in Caballo‘s truck. Genao continued to reassure Llaurador that they were not planning to kill him. Peña and Genao switched trucks when they arrived at the lake. Llaurador then implored, “if you‘re going to kill me, kill me here and just leave me here.” Peña responded: “Are you going to keep up with this? Just take it easy, we‘re not gоing to do anything to you.” Llaurador followed Caballo‘s truck a little further up a path, and then all four men got out of their vehicles. Caballo grabbed Llaurador‘s shirt, pushed him up against one of the trucks, and told Peña to “[p]ump four shots into [his] face.” Raising his arm, Peña said that he was going to pump four shots into Caballo‘s face and shot him in the face. Genao and Peña then began to argue about whether they should leave Caballo‘s body there or take it with them. They decided to put the body in the back of Caballo‘s truck, and Llaurador, driving alone in his truck, led the group away from the lake, with Peña and Genao quickly following in Caballo‘s truck. At some point, Llaurador noticed that the truck was not behind him anymore, and he turned back and found it stuck in a ditch on the side of the road. He heard two shots as he was backing up and, upon reaching the truck, was told that Peña shot Caballo two more
Delgado testified that Llaurador provided another statement on September 13, in which he discussed Valle-Lassalle‘s relationship to the murder. Llaurador said that Genao told him on the way to the cockfighting arena that Valle-Lassalle told them to kill Caballo because he was going to “snitch” about the cocaine and that they were planning on taking the body back to Valle-Lassalle‘s afterward to “chop him up and make him disappear.” That is why they took the body with them after the murder. Genao also told Llaurador that he was planning to dismantle the truck.
Llaurador added that he saw Valle-Lassalle a week after the murder, and the gangleader explained his rationale for killing Caballo and said that Peña had left the country. Valle-Lassalle also mentioned another death9 at a parking lot of the Ducos housing project. Llaurador presciently noted to prosecutor Delgado that Valle-Lassalle would kill him if he found out about the statements he was then making and that he omitted the leader‘s involvement in his earlier statement “because Manolo is the one who orders the
These detailed statements of Llaurador, so similar in some of their details to the testimony of Ramos, are powerfully corroborative of the testimony offered by Ramos and others implicating Genao in the murder of Caballo. To treat these hearsay statements of Llaurador as merely cumulative (the harmless side of corroborative) would be unrealistic. Moreover, these statements were read into the record by a Commonwealth judge who was so identified to the jury. That association inevitably added to the weight of the hearsay testimony being offered, particularly since the principal non-hearsay evidence consisted of testimony by a co-conspirator (Ramos) and a cooperator (Soto), both of whose integrity might bе more open to question than Llaurador‘s. Under these circumstances, we cannot exclude the reasonable possibility that the constitutional error at issue in the admission of Llaurador‘s statements influenced the jury in reaching its verdict that Genao was guilty of participating in a conspiracy to murder Caballo and that he aided and abetted that murder. Therefore, we must vacate those convictions.
We reach a different conclusion regarding the impact of the court‘s error on the jury‘s consideration of the drug conspiracy (count one) charge. Focusing almost exclusively on the
On the basis of this evidence, we readily conclude that the district court‘s erroneous admission of Llaurador‘s statements was harmless beyond a reasonable doubt in securing convictions on count one of the second superseding indictment. See Casas, 356 F.3d at 121 (upholding a drug conspiracy conviction where “[o]ther evidence presented at trial, as well as the admissible testimony of