UNITED STATES, Appellee, v. ALEXANDRIA ANDINO-RODRÍGUEZ, Defendant, Appellant. UNITED STATES, Appellee, v. KATERIN MARTÍNEZ-ALBERTO, Defendant, Appellant.
Nos. 20-2129, 20-2183
United States Court of Appeals For the First Circuit
August 21, 2023
Hon. Francisco A. Besosa, U.S. District Judge
Before Kayatta, Lynch, and Thompson, Circuit Judges.
Juan F. Matos-De Juan for appellant Andino-Rodríguez.
Tina Schneider for appellant Martínez-Alberto.
Jonathan E. Jacobson, with whom W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Julia M. Meconiates, Assistant United States Attorney, were on brief, for appellee.
THOMPSON, Circuit Judge. Experience has taught us drugs are trafficked in many ways, with drug runners using assorted transportation methods and various concealment techniques to move their narcotics. Today‘s drug-trafficking case comes by sea, via the Black Wolfpack, a boat that ferried cocaine smugglers and their product between Caribbean islands. Specifically, the players in this scheme undertook voyages from Puerto Rico to St. Thomas to acquire and package bricks of cocaine for transport back to Puerto Rico, where they would then receive compensation for their efforts. That came to an end in January 2018, though, when federal agents intercepted the Black Wolfpack off the coast of St. Thomas and, with it, four of the trafficking enterprise‘s participants.
What resulted was a multi-defendant indictment charging drug conspiracy crimes. While four co-conspirators entered guilty pleas, our appellants -- co-defendants Katerin Martínez-Alberto (“Martínez“) and Alexandria Andino-Rodríguez (“Andino“) -- each exercised their trial rights. Following a joint eight-day jury trial, both were convicted for their roles in the trafficking venture.
Now, in these consolidated appeals, Martínez and Andino, alleging trial and sentencing errors, ask us to reverse what happened below. But for reasons we‘ll explain, we affirm in toto.
BACKGROUND
Facts
Drawing from the record to tell this tale -- and doing so in the light most favorable to the jury‘s verdict, see, e.g., United States v. Ciresi, 697 F.3d 19, 23 (1st Cir. 2012) (citing United States v. Mitchell, 596 F.3d 18, 20 n.1 (1st Cir. 2010)) -- we begin by laying out the facts of the drug-trafficking scheme in which our appellants were embroiled, providing a good bit of saga up front in order to facilitate the gentle reader‘s understanding of how this all transpired. We will fill in more detail later, when additional factual and procedural particulars become necessary to our analysis.
Back on January 27, 2018, in the Crown Bay Marina in St. Thomas, a Customs and Border Protection (“CBP“) marine interdiction agent had eyes on the Black Wolfpack, a vessel suspected of trafficking drugs to and from Puerto Rico.1 Walking
Over the course of their searches that day, federal agents seized from the Black Wolfpack several items, including the four individuals’ identifications as well as their cell phones.4 Also found and retrieved inside a hidden compartment were 55 bundles of what was believed (and subsequently confirmed) to be cocaine. Two days later, agents further searched the Black Wolfpack, this time finding 56 bundles of suspected cocaine under a table bolted to the vessel‘s floor.5 Among the 111 total bundles seized, there were various stickers and insignia affixed to the bricks, including stickers with crowns and $100 bills on them. All told, the total weight of the 111 cocaine bricks was 132 kilograms, with a street value of $20k-22k per brick (for a grand total of more than $2 million in value).
To better understand the scope of what led to this moment at sea, let us travel back to 2017 to walk through what happened over the course of the charged conspiracy. Because while January 27, 2018 was the first time this group got caught, it was not their first rodeo.
We introduce you to two names, new to our recounting but central to the enterprise: Bernardo Coplin-Benjamín (“Coplin“) and José Javier Resto-Miranda (“Resto“).6 It was Coplin who, around March of 2017, came up with the grand idea to buy a boat that would move drugs from St. Thomas to Puerto Rico, and in anticipation of that goal Coplin asked his friend and
In preparation to set sail on their trafficking venture, Coplin and Resto did some reconnaissance. To get a read on the planned route, length of the trip, and fuel costs, Coplin asked another individual (whose identity is irrelevant here) to captain a test run. Aboard that April 2017 Wasikoki trial outing were Coplin, Andino (a close friend of Resto, who brought her into the enterprise), and Maximiliano.
Thereafter, with the route settled, a basic plan was hatched: Resto, Maximiliano, Martínez (another of Resto‘s friends and recruits), and Andino would make a trip on the Wasikoki to St. Thomas, with the women playing the roles of “fillers” to erect a facade of two couples out on a leisure ride (Resto told them they‘d be paid $3,000 apiece for their participation); the group would pick up the cocaine; and they‘d return to Puerto Rico with it. Come May 2017, they headed out to sea. Upon their arrival in St. Thomas, Maximiliano picked up the cocaine from his contact there, and he and Resto stashed the vacuum-sealed and greased bundles in a hidden compartment on the Wasikoki. But then they hit a snag: The Wasikoki had technical problems. Resto (as captain on this voyage) decided the journey would have to be abandoned -- as he told his companions aboard the vessel, it wasn‘t worth the risk of undertaking the drug run on the Wasikoki when she was struggling with mechanical issues and might break down. Resto gave the kilos to Maximiliano, who returned them to his contact. Emptyhanded, the Wasikoki and its crew then made the return voyage back to Puerto Rico.
The Wasikoki‘s mechanical issues were persistent, as it turned out, so in May 2017, Resto helped Coplin acquire a new boat: the Black Wolfpack, which Resto registered in his name.
In late July or early August of 2017, Resto, Maximiliano, and Andino (no Martínez this time) climbed aboard the Black Wolfpack and made another trip to Crown Bay Marina in St. Thomas to pick up cocaine. Once there, Maximiliano went to meet with the supplier while Resto and Andino went to an apartment on St. Thomas to help get the cocaine ready for its journey to Puerto Rico, including by putting the coke into packages, some of which had crowns on the seal. More on this later. For context, all the reader need file away for now is that Andino made another trip, then helped package the kilos for transport home to Puerto Rico, where, at Coplin‘s house, she received $7,000 for her efforts. Also worth noting now, for purposes of explaining Resto‘s role in all of this, is that Resto got $35,000 and complained he “thought it should be more.”
The Black Wolfpack set sail for St. Thomas yet again in September 2017, this time with Andino, Maximiliano, Resto, and his girlfriend (who is not a co-defendant here) aboard, and under the pretext that they were bringing aid in the wake of Hurricane Irma. Andino again participated in preparing the cocaine for transportation, then got back aboard the Black Wolfpack to head back to Puerto Rico, where she, as before, was paid $7,000 for her efforts. Resto, again disappointed by his “unfair” payout ($20,000 this time), confronted Coplin, urging that he should be paid more as captain. Coplin‘s response was to tell Resto “to deal with it” -- “this [was] the way that it was going to be done.” Displeased and feeling like the risk/benefit balance was not “a good deal” for him, Resto then “distanced” himself from the group.
A couple of months later, text messages between Martínez and Andino reflected an
And St. Thomas got another November 2017 visit from the Black Wolfpack, this time on the 17th. Marina registration papers for that day once more show Andino‘s signature, and Maximiliano‘s phone has a November 19 photo showing him, Andino, Martínez, and another individual at the cocaine-packaging site (an apartment) with that telltale cooler used to move the kilos (as Resto attested at trial) behind them.
Fast forward to January 2018, back to the events we started with. Now, Resto had not been participating in this drug-trafficking enterprise for a few months, but he was asked to join for that January 2018 trip. He declined, instead going to Alaska, where he would renew his asbestos removal license (he‘d worked in Alaska over the years, he explained at trial). Resto later learned of his four associates getting busted when Coplin called him and broke the news that Martínez, Andino, Maximiliano, and Emiliano had been arrested in St. Thomas.7
Procedural History
In the wake of the January 2018 seizures and arrests, a second superseding indictment ultimately issued charging Martínez, Andino, Maximiliano, and Emiliano, and later Coplin and Resto, with conspiracy to possess with the intent to distribute a controlled substance in violation of
Over time, each of Martínez and Andino‘s co-defendants entered guilty pleas.8 For their part, Martínez and Andino, as we noted earlier, proceeded jointly to trial, at which both defendants were found guilty9
DISCUSSION
The appellate contentions pressed by Martínez and Andino are discrete ones with no overlap as between each appellant. Martínez presses three challenges on appeal, each arising from a different moment during trial.10 In sum, she argues the district court committed errors (1) regarding Resto‘s trial testimony, (2) in making an evidentiary ruling, and (3) when it delivered jury instructions. As for Andino, she says the district court erred when it denied her the minor participant adjustment she sought.
Proceeding chronologically, let‘s test the waters.
Martínez
Resto: Recross-Examination and the Motion to Strike
Martínez‘s first argument zeroes in on Resto, the co-conspirator turned cooperating witness, and a couple of aspects of the district court‘s handling of his testimony. The thrust of her argument, as we understand it to be, is that two of the district court‘s rulings -- its denial of recross of Resto and, later, its grant of the government‘s motion to strike some of Resto‘s testimony -- denied her the opportunity to impeach Resto‘s testimony and credibility in violation of her Sixth Amendment Confrontation Clause rights. To navigate her claims, we first provide some preliminary guiding principles, then wade into the transcripts of the waning days of the trial to explicate the sequence of events and rulings.
It‘s axiomatic that “[t]he Confrontation Clause of the Sixth Amendment guarantees criminal defendants the right to cross-examine witnesses who testify against them.” United States v. Maldonado-Peña, 4 F.4th 1, 31 (1st Cir. 2021) (quoting United States v. Casey, 825 F.3d 1, 23-24 (1st Cir. 2016)), cert. denied Rivera-Alejandro v. United States, 142 S. Ct. 729 (2021), and cert. denied Rivera-George v. United States, 142 S. Ct. 1184 (2022), and cert. denied Rivera-Alejandro v. United States, 142 S. Ct. 1185 (2022). It allows defendants to “test the believability of a witness and the truth of his testimony.” Id. (quoting United States v. Rivera-Donate, 682 F.3d 120, 126 (1st Cir. 2012)). “This right is not without limits, however; the district court wields considerable discretion to impose ‘reasonable limits’ on cross-examination.” Id. (quoting Casey, 825 F.3d at 24); see also United States v. Kenrick, 221 F.3d 19, 33 (1st Cir. 2000) (en banc) (acknowledging the district court‘s
Initial guidance in place, we turn back to our case to see how things played out below.
On trial days six and seven (of eight), defense counsel -- first for Andino, then for Martínez -- conducted their cross-examinations of Resto. As relevant here, both counsel probed Resto‘s cooperation agreement. Martínez‘s counsel went further and explored Resto‘s purchase and possession of a gun in Alaska, which he admitted to, as well as his drug-dealing business in Alaska. He also acknowledged that his plea agreement did not include a charge of possession of a weapon in furtherance of drug trafficking, nor did his sentencing guidelines recommendation include any points provided for possession of a firearm.11 About the propriety of his gun ownership, Resto testified his having it was legal in Alaska, but Martínez‘s counsel countered by asking, “[I]sn‘t it true that even if you buy a weapon . . . you have to register the weapon with the police department closest to your home[?]”
Following cross-examination by both defense counsel, the government briefly redirected, and during the redirect, Resto testified there was no connection between his gun ownership and his selling drugs in Alaska. Thereafter, the district court excused Resto from the stand.
Needing to take care of several procedural housekeeping matters, the court, outside the presence of the jury, held a sidebar at which Andino‘s attorney represented that he had intended to recross-examine Resto regarding aspects of his testimony concerning his cooperation with the government and benefits he might have derived from that cooperation. He made a particularized proffer indicating he would have recrossed on “three specific moments in which [Resto] was promised by the agents that he was going to get specific considerations“: (1) the FBI‘s statements to Resto which showed they made promises to him including bail and staying in Alaska; (2) the timing of when Resto began to cooperate; and (3) Resto‘s misstatements about what he said during his FBI interview. Martínez‘s counsel, without elaboration, “join[ed] brother counsel‘s objection.” The district court denied the request, indicating that all those proposed topics had already been covered
On the next and final day of the trial, the government, returning to the topic of Resto‘s cross-examination, moved to strike the testimony about Resto‘s Alaskan gun possession, argued that whether Resto had registered the gun was irrelevant to his credibility, and even if he may have run afoul of a registration requirement, he hadn‘t been convicted of any such violation. After hearing from each side, the district court granted the motion on the grounds that Martínez‘s attorney, when asked, was unable to cite any firearm ownership law Resto had purportedly violated. The district court, finding that the gun-in-Alaska questioning could mislead the jury, instructed the jury to disregard all of it.
On appeal, Martínez‘s argument takes aim at these two events -- the denial of recross-examination and the grant of the motion to strike -- and argues the district court‘s striking of Resto‘s gun testimony concerning his possession of the gun while dealing cocaine, “exacerbated by the court‘s denial of [her] opportunity to recross him,” had the effect of depriving her “of the constitutionally required threshold level of inquiry,” robbing her of “sufficient leeway to establish a reasonably complete picture of the witness‘s veracity, bias, and motivation.” More specifically, she argues, the gun evidence could have been used to show Resto‘s bias given that the government could have charged him, but, favorable to him, didn‘t (see supra note 8),13 or could have enhanced his sentence, but, again favorable to him, didn‘t, based on firearm possession (see
The government offers a fulsome retort to Martínez‘s arguments which we‘ll weave into our analysis as we go along.
We open by acknowledging our agreement with Martínez‘s top line assertion:
Reasonable Opportunity to Impeach
Taking a look at the record, it clearly reflects, as the government contends, that the district court gave Martínez a reasonable opportunity to confront and impeach Resto.
As mentioned, cross-examination commenced on trial day six, a day after the government completed its direct (with the government briefly “reopen[ing]” direct to show a few pictures). And as far as cross-examinations go, it went smoothly, with the district court allowing nearly all lines of inquiry, many of which prompted responses from Resto that reasonably could tend to cast doubt on his credibility. For example, Resto agreed that he had repeatedly lied to federal agents -- even up to four days before the trial started -- and that he was never charged with a separate crime based on these lies. The jury learned through his testimony that it was only after his attorney advised him to stop lying that Resto fully began to cooperate. The cross also focused on Resto‘s signed cooperation agreement with the government and the benefits that he derived from it, including the possibility of a reduced sentence. Indeed, even in the wake of some sustained objections over the course of the two-day cross-examination, the record is clear “that the defense got its main point[s] across.” Maldonado-Peña, 4 F.4th at 34-35; Pérez-Ruiz, 353 F.3d at 11 (finding it “crystal clear” that an appellant had “ample opportunity to confront [the witness‘s] testimony” when the district court gave defense counsel a recess after the direct had concluded and “did nothing to limit the length of [the ensuing] (and skillfully conducted) cross-examination“); see also Cruz-Rivera, 14 F.4th at 52 (spying no confrontation issue when defense counsel had explored the witness‘s bias through a cooperation agreement and reduced sentence -- and leaned on the same during closing argument).
Recross-Examination Request
What remains, then, at step two, is for us to resolve whether the denial of recross-examination of Resto constituted an abuse of discretion. See Maldonado-Peña, 4 F.4th at 31; Casey, 825 F.3d at 24. “The abuse-of-discretion standard is not ‘appellant-friendly.‘” United States v. Marino, 833 F.3d 1, 7 (1st Cir. 2016). We have said that “[t]he touchstone of abuse of discretion review . . . is reasonableness.” Id. at 10 (quoting United States v. Vargas-Dávila, 649 F.3d 129, 130 (1st Cir. 2011)). This means that we will affirm only if “no reasonable person could
agree with the ruling.” United States v. Rivera-Carrasquillo, 933 F.3d 33, 44 (1st Cir. 2019).
The short of it is that contrary to Martinez‘s claim, and as the government contends, the district court‘s ruling was not an abuse of its extensive discretion. Recall first that it was Andino‘s attorney, not Martinez‘s, who put any meat on the bones of the objection he made to the court‘s recross ruling. And here, Martinez does not even mention that three-point proffer Andino‘s attorney made to the court. Instead, Martinez‘s brief shifts back to talking about the exclusion of the gun testimony and how the earlier denial of recross prevented defense counsel from probing
But not only is this rear-view-mirror approach untenable in light of basic preservation principles, crucially, that‘s not how our review of her claim works. Our examination of her allegations of error focuses on the district court judge‘s reasonableness assessment of the evidentiary ruling at the time the decision was made. See United States v. Brown, 669 F.3d 10, 22 (1st Cir. 2012) (instructing that “[i]mplicit in [the abuse of discretion] standard is the requirement that we not indulge in review by hindsight but consider what evidence was before the trial judge at the time“).
Accordingly, on these facts, we cannot characterize the district court‘s denial of recross as an abuse of discretion. See, e.g., Maldonado-Pena, 4 F.4th at 31; Kenrick, 221 F.3d at 33.
Strike Motion
We turn now to the motion to strike, which generally gets abuse-of-discretion review.17 See, e.g., United States v. Sabetta, 373 F.3d 75, 82 (1st Cir. 2004); United States v. Houlihan, 92 F.3d 1271, 1297 (1st Cir. 1996).
Think back to the basic progression that led to the motion to strike: defense counsel suggested during cross that Resto had broken an Alaska law by possessing a gun and failing to register it; the motion to strike was filed a day later; when asked, Martinez‘s counsel could not provide the court with the Alaska law Resto supposedly broke. In the exchanges that followed, the court, Martinez‘s attorney, and the government debated whether the gun testimony should be stricken, with Martinez‘s counsel urging that Resto‘s apparent belief that he should have registered the gun goes to credibility. The exchange also touched on the point that, according to the defense, Resto derived a benefit from his cooperation because he wasn‘t charged under
The government, for its part, maintained that there was “zero connection” between Resto‘s gun possession and the facts of the
Trying to pin it all down, the court squarely asked Martinez‘s counsel, “Whether or not the [g]overnment brought a 924(c), how does that go to [Resto‘s] credibility?” In response, Martinez‘s counsel revisited Resto‘s testimony regarding Alaska‘s law about purchasing and registering guns, having previously asked Resto, “And isn‘t it true that . . . you have to register the weapon . . .?” and Resto answered, “That is correct.” The district court said, “[B]ut that‘s beside the point.” Martinez‘s counsel replied, “But that goes to his credibility. He says that he knows the law.” Said the district court in response: “But that is not the law. . . . I don‘t care if the witness says that it is. The witness can say that opening that door is against the law, and it isn‘t. I am going to strike the testimony.” And strike it he did, saying the cross-examination concerning the gun had been improperly misleading.
Martinez‘s point here, as she frames it, continues her central thesis that striking the gun testimony had the effect of denying her the opportunity to impeach Resto, in a constitutional sense, and to challenge his credibility.
We take her argument to be either that Resto‘s shipping cocaine to himself from Puerto Rico to Alaska was part of the Puerto Rico conspiracy or that it was a separate but supportably chargeable
Here, our review of the above-described list of harmlessness considerations prompts our conclusion that any error regarding Martinez‘s ability to probe Resto‘s credibility was indeed harmless. As the government points out, even without Resto‘s gun testimony in the evidentiary mix, Martinez had, as we‘ve already described, plenty of tools available to her to impeach Resto‘s credibility -- her counsel was still able to use the defense‘s effective cross-examinations during closing arguments, hammering home for the jury‘s benefit Resto‘s potential bias, motives, and truthfulness issues on points apart from the gun testimony. For example, the jury heard Resto readily cop to wanting the best possible deals, and cooperation was one way to get a better sentence. And another benefit of Resto‘s cooperation was the drug quantity stipulation he secured -- 15 to 50 kilos of cocaine as opposed to the significantly higher quantity he actually trafficked based on the evidence the jury heard. His pattern of lying to agents (but not being charged for doing so) and minimizing his involvement in the trafficking scheme was likewise probed during Resto‘s testimony, then used during closing arguments. Also during closings, defense counsel was able to highlight Resto‘s plea and cooperation agreements for the jury and counseled the jury to “consider . . . immensely” how much to trust Resto based on his testimony because his plea deal meant that he was on “un dedo pillao” (a short leash) with the government.
Aside from this effective dissection of Resto‘s credibility, the record reflects that the jury heard and saw ample evidence establishing Martinez‘s knowing involvement in the drug-smuggling enterprise -- and corroborating Resto‘s telling of the tale, to boot. Consider, for example (this list of evidence is non-exhaustive):
- The day the 28-foot Black Wolfpack (with 111 kilos stashed on it) was intercepted at sea, Martinez was aboard;
- The evidence extracted from her cell phone included text messages from Martinez saying she was “working” and “rich” during the January 2018 trip to St. Thomas;
- November 3, 2017 text messages between Martinez and Andino showed Martinez responding to Andino‘s “[w]e‘re leaving tomorrow early” message with “[o]kay. We‘re ready“;
- Then, Martinez‘s cell phone took a November 4, 2017 picture of cocaine bricks -- the same day Andino registered the Black Wolfpack at the marina in St. Thomas; and
- Martinez appears in a November 19, 2017 photograph at the St. Thomas apartment where the cocaine had been packaged.
As the government argued to the jury in closing, “[Y]ou don‘t need Mr. Resto to tell
Taking everything into account, in view of our case law‘s harmlessness considerations (like strength of the government‘s case, corroborative or contradictory evidence, cumulativeness, the extent of permitted cross-examination), and even if Martinez‘s motion-to-strike arguments have some merit, on this record, any error in granting the motion was harmless beyond a reasonable doubt. See George, 761 F.3d at 56; Earle, 488 F.3d at 542.
The Foot
On the heels of her Resto-based asseverations comes Martinez‘s argument that the district court committed error by denying her request to (literally) put her foot in evidence, i.e., showing it to the jury so, as she tells it, the jury could compare that evidence to the government‘s photographic evidence. As the record and resulting appellate arguments bear out, this request produced a somewhat distinctive evidentiary situation. We begin again with the specifics of what happened below.
Journey back with us to the close of trial proceedings, to when, before bringing the jury in for final instructions, the district court asked defense counsel whether either of the defendants would testify. Martinez and Andino each said no. And the record reflects the defense had no witnesses it wished to call, either. But counsel for Martinez stated he did want to present “one piece of evidence“: an in-court exhibition of Martinez‘s foot. The idea was for the jury to compare her foot to (what Martinez says is) a foot that appears in the government‘s Exhibit 88.2122 The district court hesitated, querying how anyone would “know it‘s her foot” in the photo and why this should be probed outside of closing arguments, then reasoning Martinez‘s counsel couldn‘t argue Exhibit 88 did not depict Martinez‘s foot unless she testified about it.
Martinez‘s counsel tried to clarify by stressing
all we are going to show the jury is Ms. Martinez-Alberto‘s foot. I‘m going to request that a screen shot be taken, and that be Defense Exhibit 2, and that is all that we are planning on doing. We‘re not going to ask any questions, we‘re not
making any statements, that is all that we‘re going to do in this case, Your Honor.
The district court‘s response was to say Martinez would need to testify as to whether the exhibit depicts her foot. And when in response Martinez‘s counsel asked if he could ask his client one question -- “Is the foot that appears on Exhibit 88 your foot?” -- the district court again reasoned that Martinez couldn‘t just show her foot to the jury; she‘d need to testify, and she could be subject to cross-examination if she did. And so, counsel for Martinez said, “We have no evidence.”23
Before us, Martinez says it was error for the district court to deny her the opportunity to show her foot to the jurors. Specifically, she urges it was incorrect to conclude that Martinez would open herself up to cross-examination if she showed her foot since doing so isn‘t testimonial -- and this error was not harmless, she says, in that “[t]he evidence of Martinez‘s knowledge of the conspiracy was not overwhelming,” “[t]he photograph showing the foot next to the bricks of cocaine was the most compelling evidence of knowledge,” and the government “extensively relied upon it” to argue she knew about and was involved in the conspiracy.
The government parries by offering a variety of reasons why the district court was right to reject Martinez‘s request. For instance, the government posits that Martinez failed to lay any foundation for the evidence (her foot), and that because of this failure, it would render this evidentiary offer irrelevant. Moreover, according to the government, Martinez‘s characterization of Exhibit 88 and how the government used it at trial is off. Contrary to her insistence otherwise, says the government, that photo wasn‘t used to identify her foot and thus prove her knowledge of the conspiracy or her presence on the Black Wolfpack (whether by the purported foot itself or its proximity to the cocaine or, perhaps, the suggestion that she was the one who took the photo); rather, Exhibit 88 was used to show that Martinez‘s phone took a November 4, 2017 photo that showed logos on cocaine bundles, and those matched later images of similarly packaged and stickered cocaine bundles that were seized from the Black Wolfpack in January 2018.
We will review for abuse of discretion the foot-as-evidence issue.24 See, e.g., United States v. Vazquez-Soto, 939 F.3d 365, 373 (1st Cir. 2019); United States v. Zaccaria, 240 F.3d 75, 78 (1st Cir. 2001) (stating abuse-of-discretion review applies to district court rulings admitting or excluding evidence and, in so doing, noting that “[e]very trial presents a blend of idiosyncratic circumstances,” so “presiding judges must be afforded some leeway in making evidentiary rulings“). And from our vantage
“District courts ‘have wide discretion in deciding whether an adequate foundation has been laid for the admission of evidence.‘” United States v. Velazquez-Fontanez, 6 F.4th 205, 221 (1st Cir.) (quoting Veranda Beach Club Ltd. P‘ship v. W. Sur. Co., 936 F.2d 1364, 1371 (1st Cir. 1991)), cert. denied, 142 S. Ct. 500 (2021), and cert. denied sub nom. Resto-Figueroa v. United States, 142 S. Ct. 1164 (2022); see also Gomez v. Rivera Rodriguez, 344 F.3d 103, 117 (1st Cir. 2003) (instructing that “the determination of whether a party has built a proper foundation is left principally to the sound discretion of the presider“).25
And when, as here, an evidentiary dispute arises, and when tendering an evidentiary proffer to the court in support of admissibility, “the most important procedural rule is that the proponent of an item of evidence must ordinarily lay the foundation before formally offering the item into evidence.” Edward J. Imwinkelreid, Evidentiary Foundations, § 1.02[1] (10th ed. March 2018). “At a bare minimum, the requisite foundation demands something more than intuitive judgments emanating from broad generalities.” Gomez, 344 F.3d at 117; see also Kissinger v. Lofgren, 836 F.2d 678, 683 (1st Cir. 1988) (explaining that a proper foundation for evidence requires its proponent to provide “‘evidence sufficient to support a finding’ that the evidence is what the proponent claims it to be” (quoting 5 J. Weinstein & M. Berger, Weinstein‘s Evidence, ¶ 901(a)));
Important here, building a proper evidentiary foundation involves demonstrating the relevance of the proffered evidence. See
So, what would the relevance of Martinez‘s in-court foot display be? Her suggestion, recall, is that her in-court display would tend to rebut what she characterizes as the government‘s suggestion that it is her foot in Exhibit 88, making her in-court display relevant inasmuch as it could tend to disprove her knowledge, presence, and participation in the scheme. To do this, though, she needed to foundationally connect these evidentiary dots -- and she did not.
We explain, starting with Exhibit 88 itself. To admit this picture (showing cocaine bundles with crown stickers and $100-bill stickers affixed to them) into evidence, the government called the special agent who conducted the extraction that led to the discovery of the photograph on Martinez‘s phone. As pertinent here, when the government showed Exhibit 88 to the agent, he testified that he recognized it because the “image [was] part of the extraction that [he] performed of the phone.” After Exhibit 88 was admitted, the government continued:
[Government]: So this was an image that you found, correct, on this phone?
[Agent]: Correct.
[Government]: And this phone belonged to [Martinez].
[Agent]: Correct.
In response to the government‘s further questioning, the agent testified as to Exhibit 88-1, “the report performed of the telephone extraction.” As the agent confirmed, the report captures information about Exhibit 88. Looking at the extraction and metadata report, the agent explained (in some technical detail not necessary to get into here) that the photo (Exhibit 88) was taken on November 4, 2017 at 9:49 p.m. using Martinez‘s phone. Over an objection unrelated to any issue on appeal, Exhibit 88 was admitted in full.
The next day, Resto was questioned by the government about the process he and his crew undertook when packaging their kilos. Resto was asked whether the wrapping pictured in Exhibit 88 (which was on display for this line of questioning) was what was done to the kilos of cocaine he and his partners would transport, and he confirmed, “That is correct[, t]his is how they [were] received” and then wrapped by his team.
Having studied the record and the Exhibit 88-related exchanges closely, we agree with the government that in her efforts to convince the court to permit the in-court display of her foot (and still before us), Martinez mischaracterized the government‘s use of and reliance on its Exhibit 88 at trial. The record reflects that Exhibit 88 was not introduced by the government for the purpose of identifying Martinez or to intimate that the blurry shape at the bottom of the photo is Martinez‘s foot. Rather, the significance of Exhibit 88, as the government set forth in the foundation it laid for admissibility, was in its timing and what it showed: A November 4, 2017 photo on Martinez‘s phone, aligning with the Black Wolfpack‘s November 4, 2017 trafficking journey, showing cocaine bundles with stickers that matched those appearing on bundles seized after the January 2018 arrests. The fact that a foot might be in the photo was of no moment to the government‘s case.
Thus, the significance of the display of Martinez‘s foot -- whether exhibiting her foot directly to the jury, putting it on the
Indeed, on the record before us and bearing in mind the above-recapped guiding principles of relevancy, we do not see -- and Martinez has not shown -- why a direct-evidence-showing of her foot would be relevant.28 Accordingly, we cannot say it was an abuse of discretion to exclude the display of Martinez‘s foot.
Jury Instructions
Martinez‘s third and final appellate argument is of the instructional variety, and it has two dimensions: The district court committed error when it failed to instruct the jury to consider the charges against Martinez and Andino separately, and in the instructions it did issue, it impermissibly and repeatedly referred to the defendants as a single unit. We begin our inspection of this assertion by setting the instructional scene, then we‘ll drill down on these arguments.
In the lead-up to trial, the district court issued an order directing the parties to submit proposed jury instructions. The government filed proposed instructions; neither Martinez nor Andino followed suit. In time, the district court gave counsel its proposed jury instructions and verdict forms for their review, some changes were made during the charging conference, the instructions were redistributed to all counsel at the end of trial day seven, and then, at the close of evidence, the district court read the instructions to the jury.
Throughout the instructions, the district court referred to Martinez and Andino as “the defendants,” and “they,” “their,” and “them,” too. One example of many such instances came when the district court instructed the jury that, “Even if the Defendants
to determine whether Martínez was guilty or not guilty for conspiring to possess with the intent to distribute and import cocaine, and did not mention Andino; Andino‘s form communicated the same directive, likewise never mentioning Martínez.
Debuting her concerns about the instructional phase, Martínez focuses on two aspects of what happened during the jury charge. First, she says the district court failed to issue an instruction to the jury directing it to consider each defendant separately and not think of them as a group. Second, she argues the district court‘s consistent and repeated reference to the defendants as a unit constituted prejudicial error because there was more extensive evidence against Andino than Martínez. Indeed, Martínez urges that the district court‘s error was not putting the terms “each of” before every mention of “the defendants” throughout, instead doing so only once -- that “each of them participated in the conspiracies” line we mentioned -- and even that was against the backdrop of many more instructions that group them together as one entity. And Martínez further argues the separate jury verdict forms shouldn‘t impact our calculus at all since they are not instructions, but rather are a mere end-of-the-process formality that could not undo the damage that had already been done during the instructional phase.
For its part, the government disagrees entirely, maintaining that a whole-picture view of the jury charge plainly demonstrates the jury was told to consider Martínez and Andino separately to determine guilt as to each individual woman.
Martínez correctly owns that there was no objection to the final instructions below, which contain the offending language she now protests on appeal. Given this concession, and assuming, contrary to the government‘s assertion, the argument is not waived, see United States v. Clough, 978 F.3d 810, 823 (1st Cir. 2020) (“We need not linger over [appellant‘s] contentions because he waived this claim by failing to request such an instruction below.“), our review of these contentions is, at best, for plain error,29 see United States v. Cruz-Ramos, 987 F.3d 27, 39 (1st Cir. 2021) (explaining that an appellant “must run the usually lethal gauntlet of plain-error review” on his instructional-error claim when he did not raise the issue below). This requires Martínez to “make the difficult showing that the judge erred and clearly [or obviously] so, and that the error also affected [her] substantial rights -- but even then we can still affirm if [she] does not show as well that the error seriously harmed the fairness, integrity, or public perception of [her] trial.” Id.; see also United States v. Bauzo-Santiago, 867 F.3d 13, 22-23 & 23 n.8 (1st Cir. 2017). “This standard is exceedingly difficult to
“When applying the plain error standard in the context of jury instructions, [this court] look[s] at the instructions as a whole to ascertain the extent to which they adequately explain the law without confusing or misleading the jury.” Bauzo-Santiago, 867 F.3d at 23 (quoting United States v. Candelario-Santana, 834 F.3d 8, 27 (1st Cir. 2016)) (cleaned up); see also United States v. Padilla-Galarza, 990 F.3d 60, 83-84 (1st Cir. 2021) (observing that this review of jury instructions “is context-dependent and must take into account the jury instructions as a whole“); United States v. Vega, 813 F.3d 386, 396–97 (1st Cir. 2016) (concluding on plain-error review that, “read[] against the backdrop of the charge as a whole,” the jury instructions were sufficient, even if not “letter perfect” (quoting Paniagua-Ramos, 251 F.3d at 246-47)). Given all of this, we‘ve said this lens of review “is cold comfort to most defendants pursuing claims of instructional error.” Mitchell, 596 F.3d at 25 (quoting United States v. Gómez, 255 F.3d 31, 37 (1st Cir. 2001)).
The stage set, we proceed to our plain-error review, mindful that “a reversal on instruction-error grounds is ‘a remedy that is granted sparingly.‘” United States v. Takesian, 945 F.3d 553, 566 (1st Cir. 2019) (quoting United States v. Gelin, 712 F.3d 612, 620 (1st Cir. 2013)). We won‘t hide the ball: Martínez‘s instructional-error arguments cannot withstand the “exceedingly difficult to satisfy” plain-error scrutiny, González-Vélez, 466 F.3d at 35, and that is because we discern no clear or obvious error.
Martínez says the district court should have included an (unrequested) instruction that the jury consider the defendants separately, and its failure to do so -- coupled with its repeated lumping together of “the defendants” during the jury charge -- is an error that was plain. But in looking at these arguments “against the backdrop of the charge as a whole,” Vega, 813 F.3d at 396–97 (quoting Paniagua-Ramos, 251 F.3d at 246-47), it‘s clear they were sufficient and no clear or obvious error lies.
True, the district court did not say “each defendant” or place “each of” before “the defendants” throughout the jury charge. But these standard instructions, again, read in context and as a whole, had the effect of appropriately directing the jury to consider Martínez and Andino separately. Early in the instructions, setting the stage and tone, the district court told the jury that (emphasis ours)
[t]he presumption of innocence alone may be sufficient to raise a reasonable doubt and to require the acquittal of a Defendant. The Defendants before you, Katerin Martínez-Alberto and Alexandria Andino-Rodríguez, have had the benefit of the presumption of innocence throughout the trial and you are not to convict them of the charges against them unless you are persuaded of their guilt of these charges beyond a reasonable doubt.
Later, the district court was clear that the jury could not “find the Defendants guilty unless [it found] beyond a reasonable doubt that each of them participated in the conspiracies as charged with at least one other person . . . .” (Emphasis added.) We also note that the jury had before it the defendants’ indictment -- the charging document that spells out the counts against each defendant -- which the district court
consideration of an extraneous document like a jury verdict form should not be part of our decisional calculus, we believe the district court‘s careful review of the purpose and operation of the forms would have clarified any possible ambiguity in the jurors’ minds about their decision-making responsibilities towards each defendant.
And despite Martínez‘s protestations to the contrary, our case law does not favor her position given our standard of review here. We‘ve described a plain (i.e., clear or obvious) error as being one that is “‘indisputable’ in light of controlling law.” United States v. Rabb, 5 F.4th 95, 101 (1st Cir. 2021) (quoting United States v. Jones, 748 F.3d 64, 70 (1st Cir. 2014)). While some of the cases to which Martínez points flag steps that may be taken during the jury charge to dispel the risk of prejudice, like issuing an instruction that the jury give separate consideration to each defendant, we are unaware of any controlling law that affirmatively obligates courts to issue this specific instruction in order to avoid committing clear and obvious error. And when, as here, a full-picture review of the instructional phase shows the jury was sufficiently clear on its task to consider the defendants and the evidence against each separately, there is no indispensable need for such a requirement.31
Andino
We come now to Andino and the sole issue she raises on appeal, a sentencing challenge. Andino says the district court committed reversible error when it denied her request for a mitigating role adjustment pursuant to the federal sentencing guidelines, and that error resulted in the improper calculation of her guidelines sentencing range. Having carefully reviewed the sentencing record, we are unconvinced. Before we explain why that is so, we offer a little contextual primer on the sentencing framework in which Andino‘s appellate contention operates and the lens through which we must review it.
Andino‘s sentencing challenge is based upon the guidelines’ available downward adjustments for a defendant who played a mitigating role in an offense. Specifically, section 3B1.2 of the guidelines allows a court to decrease a defendant‘s offense level by four levels if she is deemed a minimal participant, two levels if she is deemed a minor participant, and three levels if the case falls somewhere in between. See
Now, our method of review for Andino‘s mitigating-role argument. Zooming out for the basics, we review procedural reasonableness challenges like Andino‘s “under a multifaceted abuse-of-discretion standard whereby we afford de novo review to the sentencing court‘s interpretation and application of the sentencing guidelines, assay the court‘s factfinding for clear error, and evaluate its judgment calls for abuse of discretion.” Mendoza-Maisonet, 962 F.3d at 20 (quoting United States v. Arsenault, 833 F.3d 24, 28 (1st Cir. 2016)).
Narrowing our focus to the sort of mitigating role adjustment issue we‘re confronted with in this case, we emphasize that “[t]he defendant seeking the mitigating role adjustment ‘bears the burden of proving, by a preponderance of the evidence, that [she] is entitled to the downward adjustment.‘” Id. at 23 (quoting United States v. Arias-Mercedes, 901 F.3d 1, 5 (1st Cir. 2018)). We‘ve often warned that, “[b]ecause determining one‘s role in an offense is a fact-specific inquiry, ‘we rarely reverse a district court‘s decision regarding whether to apply a minor role adjustment.‘” De la Cruz-Gutiérrez, 881 F.3d at 225-26 (quoting United States v. Bravo, 489 F.3d 1, 11 (1st Cir. 2007)); see also United States v. Valenzuela, 849 F.3d 477, 489 (1st Cir. 2017) (reviewing the district court‘s decision to impose a minor participant reduction for clear error because “[r]ole-in-the-offense determinations are notoriously fact-sensitive” (quoting United States v. Montes-Fosse, 824 F.3d 168, 172 (1st Cir. 2016))); United States v. Pérez, 819 F.3d 541, 546 (1st Cir. 2016) (“[B]attles over a defendant‘s status . . .
All of this to say, “the standard is highly deferential, and reversal is rare.” United States v. Ruiz, 999 F.3d 742, 750 (1st Cir. 2021) (citing Mendoza-Maisonet, 962 F.3d at 23).
With this guidance in tow, we turn to the opposing views presented at the presentencing regarding Andino‘s role in the trafficking operation. After the trial concluded and before the sentencing hearing, a probation officer produced Andino‘s presentence report (“PSR“). The report came up with an initial offense level of 36 pursuant to
The government objected to the probation officer‘s application of the two mitigating role adjustments, however the probation officer stood by his initial determination, stating Andino‘s role in the offense “seems to be small when compared to that of some of her co-conspirators within the overall drug importation scheme.” The probation officer did not dispute the events (being present in meetings, signing marina forms, helping wrap and clean the kilos), but argued a closer look at those activities reveals the role of a minor participant. Andino‘s sentencing memorandum adopted the probation officer‘s reasoning, and in turn proposed to the district court an 87-month sentence, the lower bound of the sentencing range once adjusted for the safety valve and both mitigating role adjustments.
In its ensuing formal objection, the government applied the five-factor assessment
With this point of contention looming, the parties headed into the sentencing hearing. Once there, the district court, after considering arguments from both sides, disagreed with the probation officer and Andino‘s position, ultimately finding Andino ineligible for any mitigating role adjustment. To justify its decision, the court went through the five mitigating role adjustment factors (see supra note 34) and matched Andino‘s conduct to each factor. The district court noted Andino had sailed to St. Thomas on several occasions, well aware of her role as a “filler” to cover up the true nature of the voyage. Prior to at least one trip to St. Thomas, Andino met at Coplin‘s home to coordinate and plan the next criminal venture. Andino‘s role while in St. Thomas -- registering the Black Wolfpack at the Crown Bay Marina and assisting in the packaging of several kilos of cocaine -- demonstrated her willing participation in the commission of the crime. And lastly, as the final factor, the district court observed that Andino received $7,000 for her participation in a single trip from which the court inferred Andino stood to benefit from the criminal activity.
With all the facts on the table, the district court concluded Andino did not play a minor role in the operations of the Black Wolfpack and denied the mitigating role adjustments she requested. From there, the court landed on a total offense level of 34, which, when bundled with her criminal history category of I, yielded a guideline range of 151-188 months. After noting that range was greater than necessary to achieve the goals of sentencing and, consequently, adding a downward variance, the district court‘s tabulations concluded with the pronouncement of a 120-month sentence of imprisonment and a five-year term of supervised release.
Now we assess whether the district court clearly erred in its decision to deny Andino this adjustment. Remember, Andino had the burden of proving her entitlement to the requested adjustment, Mendoza-Maisonet, 962 F.3d at 23, and we defer to the district court‘s factual determinations as to whether she carried that burden unless we form “a strong, unyielding belief that a mistake has been made,” id. at 20 (quoting Montañez-Quiñones, 911 F.3d at 66). Viewed under this exacting lens, we spy no such mistake and conclude Andino‘s sentencing claim must fail.
Andino‘s arguments in support of her overall sentencing challenge share intertwined theses and themes: She carried her burden of showing she was an inessential “smokescreen” who played a tiny, non-leadership role in the trafficking scheme and was thus far less blameworthy than most of her smuggling cohorts, and the district court committed error in ignoring some evidence and misconstruing other evidence to reach the opposite conclusion. We tease all of this out as we go.
Let‘s start with Andino‘s argument that the court‘s denial of her requested adjustment
For starters, our case law is clear that all parties engaged in a criminal enterprise can be “located on a continuum.” Arias-Mercedes, 901 F.3d at 8. Those who are primarily responsible stand on one end, and the least culpable participants, described here as being Martínez, stand at the opposite end. When a defendant “stands somewhere in the middle,” as Andino seems to concede is where she falls on this continuum, a district court may reasonably infer the defendant is “not substantially less culpable than the average participant.” Id. This fundamentally undercuts much of her argument.
Another problem with this asseveration is that it asks us to simply take a different view of the same facts that were before the district court to reach Andino‘s preferred outcome.36 This is not a winning approach. See Pérez, 819 F.3d 541, 546 (dismissing appellant‘s arguments based on the same facts considered by the district court); Mendoza-Maisonet, 962 F.3d at 24 (rejecting appellant‘s argument that the district court failed to accurately interpret the facts within the record). And despite Andino‘s disagreement with the inferences drawn by the district court, when “the record supports at least two permissible inferences, ‘the sentencing court‘s choice among supportable alternatives cannot be clearly erroneous.‘” De la Cruz-Gutiérrez, 881 F.3d at 227 (quoting Pérez, 819 F.3d at 546). That is what we have here.
Next consider Andino‘s supposition that because other co-defendants had greater organizing roles, the court erroneously inferred she took part in planning the crime based on testimony placing Andino at a meeting to plan an operation. Not so. Instead, when the district court considered these facts, it reasonably viewed Andino‘s presence at the meeting as evidence “establish[ing] that Ms. Andino possessed some degree of decision-making authority or that she was sufficiently trusted to be part of the coordination efforts.” Similarly, Andino argues the $7,000 payout for her role in the operation was insignificant considering other participants received over $20,000. When the district court considered testimony stating Andino received
Then there‘s Andino‘s argument that the district court relied too heavily upon the government‘s position, did not consider the arguments made by the probation officer, and failed to support its decision for denying Andino‘s adjustment with evidence in the record. Andino bases this claim on the addendum to the PSR where the probation officer stood by and doubled down on his determination that Andino was deserving of a minor role. But despite Andino‘s insistence that “the sentencing [c]ourt did not consider them and ultimately sided with the government‘s version of the facts,” the court made clear it had reviewed the parties’ submissions (including the defense‘s sentencing memorandum, which relies upon the probation officer‘s reasoning in the addendum to the PSR) and went on to reference the probation officer‘s perspective throughout the sentencing hearing. Notably, the district court concluded that the “probation officer did not correctly apply the guideline computations, and the pre-sentence investigation report does not reflect the components of Ms. Andino‘s offenses, or consider their nature and circumstances.” In other words, and contrary to Andino‘s argument otherwise, the court considered both the probation officer‘s and the government‘s views before making a “choice among supportable alternatives,” and we “cannot [find this] clearly erroneous.” De la Cruz-Gutiérrez, 881 F.3d at 227 (quoting Pérez, 819 F.3d at 546); see also Mendoza-Maisonet, 962 F.3d at 24 (acknowledging the district court hadn‘t explained its decision to deny a minimal participation reduction, but “infer[ring] that it sided with the [g]overnment‘s arguments and therefore decided not to apply the reduction“).
And Andino also invokes the guidelines’ commentaries, alleging that the district court‘s failure to follow these commentaries amounted to an incorrect application of the guidelines. See, e.g., United States v. Carrasco-Mateo, 389 F.3d 239, 243-44 (1st Cir. 2004) (“The Sentencing Commission‘s commentary, including the application notes, is binding on the courts as long as it does not conflict either with the sentencing guidelines themselves or with some statutory provision.“). Like the arguments that came before it, this one also fails to move the needle.
And so, seeing no clear error in the district court‘s determination that Andino did not carry her burden to demonstrate she was entitled to the downward adjustment she sought, we affirm here as well.
CONCLUSION
Having reasoned through all of the issues leading to the across-the-board affirmance we previewed at the outset, we now make it official: Based on the foregoing, we affirm.
Notes
For example, the district court read into the record:
[A]s to Ms. Martínez-Alberto, the verdict reads as follows:
“As to the charge in Count One of the indictment, conspiring to possess with intent to distribute cocaine, we, the jury, unanimously find the Defendant, Katerin Martínez-Alberto,” and then there is a place for you to check “guilty” or “not guilty“.
And as to the charge in Count Two of the indictment, “Conspiring to import cocaine into the customs territory of the United States from a place outside the customs territory of the United States, but within the United States, we, the jury unanimously find the Defendant Katerin Martínez-Alberto,” and again, you have a place to check “guilty” or “not guilty“.
. . .
There is a place for the jury foreperson to sign and date the verdict.
The district court then did the same with Andino‘s verdict form.
And another quick aside on the topic of what, exactly, was before the district court with respect to Andino because, in her papers and at oral argument, Andino devoted some attention to her safety valve interview and the role she thinks it should have played in sentencing. In her interview, Andino provided information about her knowledge and participation in the criminal enterprise. She says this was presented at sentencing and should have been considered by the court in determining her role in the offense.
Here‘s the thing. When the district court clearly stated it would not use this information, opting instead to “strictly determine her role in the offense based on what was testified at trial,” Andino did not object. That means our review of this question is for plain error. See United States v. Pupo, 995 F.3d 23, 29 (1st Cir. 2021). But Andino failed to cite any case law that requires district courts to consider safety valve interviews or explain how the information produced in her interview would help her case. Truth be told, she made no mention of the plain-error review this aspect of her argument was up against, let alone attempt to meet the onerous four-part burden. For these reasons, this aspect of Andino‘s argument is waived. See Cruz-Ramos, 987 F.3d at 40 (collecting examples of waiver arising when appellants fail to attempt to meet the demanding burden of plain-error review).