United States v. Carela , 805 F.3d 374 ( 2015 )

United States Court of Appeals
For the First Circuit
No. 14-1194
UNITED STATES OF AMERICA,
Appellee,
v.
VÍCTOR MANUEL CARELA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Torruella, Selya, and Lynch,
Circuit Judges.
Patricia A. DeJuneas, with whom Sibbison & DeJuneas, was on
brief, for appellant.
Susan Z. Jorgensen, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, were on brief, for appellee.
November 4, 2015
TORRUELLA, Circuit Judge. This appeal arises out of
Defendant-Appellant Víctor Manuel Carela's ("Carela") involvement
in a drug smuggling operation. Carela was convicted on two counts:
(1) conspiracy to possess with intent to distribute five kilograms
or more of cocaine; and (2) possession with intent to distribute
five kilograms or more of cocaine. Finding no reversible error,
we affirm his conviction and sentence.
I. Background
On September 16, 2012, a multi-agency1 investigation was
initiated in regard to suspected drug trafficking in the coastal
area along Yabucoa and Maunabo, Puerto Rico. At 4:00 a.m. in the
morning of September 17, 2012, Border Patrol agents observed an
unlit vessel approaching Maunabo. The law enforcement officers
participating in this investigation requested helicopter
assistance from the Puerto Rico Police Department, which was
shortly dispatched. The helicopter spotted a thirty-three foot
vessel and communicated its location to law enforcement officers
on the ground.
Around this same time, officers led a tactical land
approach in the area and discovered a red Ford Excursion surrounded
1 This investigation involved agents from the U.S. Customs and
Border Patrol, U.S. Coast Guard, Puerto Rico Police Department,
and Yabucoa Municipal Police Department.
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by multiple gas tanks along with other supplies such as food and
drink. Proceeding to the beach, officers uncovered 918.7
kilograms of cocaine hidden within the nearby bushes.
Later that day, officers for the Municipal Police of
Yabucoa ("Yabucoa officers") were told that a shipment of drugs
had been intercepted along the Maunabo coastline. The Yabucoa
officers were instructed to patrol the area in order to locate
individuals that may be linked to the intercepted shipment. The
Yabucoa officers encountered Carela hitchhiking on a section of
the PR-901 road that was two miles from the sea. When the Yabucoa
officers approached Carela in a marked police vehicle, he jumped
over the railing on the side of the road and down a precipice.
A few minutes later, the Yabucoa officers encountered
Carela a second time. This time, the Yabucoa officers stopped
their vehicle and approached Carela on foot. The Yabucoa officers
asked Carela, who was dressed in jet skiing shoes and wet clothing,
what he was doing in the area. Carela responded that he was
collecting metal.2 The Yabucoa officers continued to speak with
Carela, who appeared agitated, tired and pale, and invited him to
2 Carela did not have any metal on his person. Further, one of
the Yabucoa Police officers that encountered Carela testified that
she has never seen any individuals collecting metal in the area in
which Carela was found.
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drink some water in their car. While Carela was drinking water,
the Yabucoa officers again asked him what he was doing in the area
and Carela indicated that he had been on a boat. At this juncture,
the Yabucoa officers arrested Carela and read him his rights.
Carela had no identification or cell phone on his person and only
a small amount of cash.
On the ride to the police station, Carela told the
Yabucoa officers that he was supposed to be paid "$5,000 for the
task, . . . but since it wasn't completed, he was not going to
receive it." Later that day, Carela was interrogated by Agent
Carlos Martínez, a Homeland Security agent. Agent Martínez
testified that Carela appeared "excited," "happy," "pumped up,"
and "very cooperative" during his interrogation. Carela admitted
to the agent that he was hired for this "drug smuggling venture
[and] that his job was to refuel the vessel that was coming in
with the narcotics." Carela further admitted that he assisted in
the offloading of narcotics from the vessel.
Carela was indicted on: (1) conspiracy to possess with
intent to distribute five kilograms or more of cocaine; and (2)
possession with intent to distribute five kilograms or more of
cocaine. 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii); 846. On April 22,
2013, Carela's first trial ended in a mistrial because the jury
could not reach a unanimous verdict. Carela was tried a second
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time and convicted on both counts. On January 22, 2014, Carela
was sentenced to 196 months of incarceration. This timely appeal
followed.
II. Discussion
Carela raises a number of issues on appeal.
Specifically, Carela argues that: (1) the district court erred
when it admitted an unexecuted draft contract into evidence in
violation of the Federal Rules of Evidence; (2) the district judge
made several improper remarks that violated Carela's
constitutional rights; (3) the district court improperly admitted
testimony in Spanish in violation of the Jones Act, 48 U.S.C.
§ 864; (4) the Government engaged in prosecutorial misconduct; and
(5) Carela's sentence was both procedurally and substantively
unreasonable. We consider Carela's contentions below.
A. The Unexecuted Draft Contract
1. Background
During the course of the second trial, the Government
sought to introduce an unsigned copy of a draft sales contract
(the "draft contract") via which Edwin Léon-Léon ("Léon") sold
Carela the red Ford Excursion that law enforcement officers found
on the beach on September 17, 2012. The Government also called
Léon to testify that Léon and Carela had executed the draft
contract. After hearing Léon's testimony, the district court
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admitted the draft contract into evidence, over Carela's
objections regarding the authenticity of the document, because
Léon did not keep a copy of the original and Léon attested that he
gave the original to Carela when the sale was executed.
Carela now argues that the draft contract was improperly
admitted because it is proscribed hearsay and its admission
requires a new trial.
Carela concedes that he did not object to the admission
of the draft contract on hearsay grounds and that plain error
review would normally apply. See United States v. Avilés-Colón,
536 F.3d 1, 22 (1st Cir. 2008). Nonetheless, Carela argues that
because he objected to the admissibility of the draft contract on
the ground that it could not be authenticated, we should apply
closer scrutiny. United States v. Jefferson, 925 F.2d 1242, 1254
(10th Cir. 1991) (stating that closer scrutiny may be appropriate
when the failure to preserve the precise grounds for error is
mitigated by an objection on related grounds).
2. Applicable Law and Analysis
As noted above, we generally employ plain error review
when a party has failed to preserve an objection in the lower
court. United States v. Acevedo-Maldonado, 696 F.3d 150, 156 (1st
Cir. 2012) (citing United States v. Rodríguez, 525 F.3d 85, 95
(1st Cir. 2008) (plain error review applies where defendant failed
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to object on hearsay grounds)). Carela argues that we should
apply closer scrutiny, but fails to cite to any case law affirming
that we are bound to do so. Nonetheless, we note that his claims
still fail under this rubric.
When reviewing for plain error, we ask whether "(1) an
error occurred; (2) the error was clear and obvious; (3) the error
affected the defendant's substantial rights; and (4) the error
impaired the fairness, integrity, or public reputation of the
judicial proceedings." United States v. Ramos, 763 F.3d 45, 56
n.15 (1st Cir. 2014) (citation omitted).
Here, the prosecution sought to introduce the contract
as additional evidence that linked Carela to the drug smuggling
operation. The Government's case did not depend on the
introduction of the draft contract into evidence because there was
already ample evidence against Carela, which included: (1) Carela
met law enforcement officers while hitchhiking in an area that is
known to be a drug delivery point; (2) Carela was found within two
miles of where the shipment of cocaine had been found several hours
earlier while wearing jet skiing shoes in a disheveled and
dehydrated state; (3) the Yabucoa officers who are from the area
did not immediately recognize Carela; (4) Carela provided police
with an unlikely story that he was in the area collecting metal
even though the area is not known for metal collection; (5) Carela
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admitted to the police that he had been on a boat and that he had
accepted an offer of $5,000 to unload cocaine; and (6) Carela was
wet when he was patted down. As a result, whether Carela did in
fact purchase the Ford Excursion is not essential to link him to
the drug conspiracy. Because there was an overwhelming amount of
other evidence against Carela, we are unable to conclude that the
admission of the draft contract somehow violated Carela's
substantive rights.
In light of the ample evidence against Carela, the
district court's admission of the draft contract did not impact
Carela's substantial rights. Our conclusion would be the same
under the closer scrutiny approach. Thus, we find that it was not
plain error for the district court to admit the draft contract
into evidence.
B. Whether the District Court Judge Erred by Commenting on the
Evidence
1. Background
During the course of the second trial, the district court
judge stated in open court that he would allow the draft contract
to be presented as evidence because (1) the draft contract had
been authenticated; (2) the draft contract was admissible because
the original copy of the contract was lost or destroyed; and (3)
the original contract could not be subpoenaed from the purchaser.
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In a subsequent sidebar conference, the district court
judge again stated that he would admit the draft contract because
Léon did not keep a copy of the original and the original copy of
the draft was not available.
Carela argues that the district court's ruling violated
his Fifth and Sixth Amendment rights because it improperly endorsed
the Government's position. This ruling, Carela argues, deprived
the jury of its corresponding factual determination because it
prevented the jury from deciding whether the original sales
contract ever existed, whether Léon kept a copy of the original
contract, and whether Léon gave a credible explanation as to why
the original contract was missing. Carela avers that the district
court's ruling constituted error and requests a new trial.
2. Applicable Law and Analysis
Carela did not contemporaneously object to the comments
at issue during the proceedings below. As a result, we review the
district judge's comments under the plain error standard.
A trial judge "retains the common law power to question
witnesses and to analyze, dissect, explain, summarize and comment
on the facts and evidence." Logue v. Dore, 103 F.3d 1040, 1045
(1st Cir. 1997) (citations omitted). However, the judge may not
overstep his bounds and give an impression of judicial bias.
United States v. Rivera-Rodríguez, 761 F.3d 105, 111 (1st Cir.
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2014). Improper judicial intervention will seriously prejudice a
defendant's case if there is a reasonable probability that, but
for the error, the verdict would have been different. Id. at 112.
In order to determine if there was judicial bias, we consider each
intervention in the context of the trial as a whole, whether the
comments were improper, and whether the complaining party can show
serious prejudice. Id. at 111.
Federal Rule of Evidence 1008 establishes that the jury
generally determines whether a writing produced at trial is the
original writing. Fed. R. Evid. 1008. In the same vein, we have
held that the Sixth Amendment guarantees a criminal defendant the
opportunity for a jury to decide guilt or innocence. United States
v. Bello, 194 F.3d 18, 25 (1st Cir. 1999).
Here, we do not find that the district court judge acted
improperly or that he decided Carela's guilt or innocence. The
statements that Carela objects to are part of the district court's
ruling regarding the admissibility of the draft contract. In
light of the trial as a whole, we cannot conclude that the district
court's ruling to admit the draft agreement in open court somehow
prejudiced Carela. As stated in the preceding section, there was
significant evidence in this case against Carela. Thus, we cannot
conclude that but for the district court's ruling the result of
the proceeding would have been different.
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We further note that our review of the transcripts to
which Carela refers yields no commentary or question by the trial
judge that exceeds the bounds of acceptable judicial
participation. See Acevedo-García v. Monroig, 351 F.3d 547, 561
(1st Cir. 2003).
As such, we find that the district court's comments were
proper and did not endorse the Government's position.
C. Whether the Jones Act was violated
1. Background
Carela claims that the Jones Act3 was violated because
on the second day of trial, Agent Martínez testified to the Spanish
version of Carela's statement. In simpler terms, Agent Martínez
testified that Carela told him that he had been driving "a red-
type guagua, tipo guagua." Carela posits that there is no English
meaning of the word "guagua" or "tipo" and that this statement
violated the Jones Act and necessitates a new trial.
Carela further takes issue with what he characterizes as
the prosecutor's attempt to get around the Jones Act by attempting
to translate "guagua" as a red truck during the Government's
3 The Jones Act requires that all pleadings and proceedings in
the United States District Court for the District of Puerto Rico
be conducted in the English language. 48 U.S.C. § 864; see also
United States v. Millán-Isaac, 749 F.3d 57, 63 (1st Cir. 2014).
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closing.4 Carela vociferously argues that this is an inaccurate
translation of the word "guagua," which according to Carela can
only mean bus.
2. Applicable Law and Analysis
Carela readily concedes that no Jones Act objections
were raised below. As a result, we review for plain error. See
United States v. Mescual-Cruz, 387 F.3d 1, 12 (1st Cir. 2004).
In general terms, a prosecutor's comment does not
violate the Jones Act so long as the proceedings were conducted in
English. United States v. Báez-Martínez, 786 F.3d 121, 127 n.1
(1st Cir. 2015) (clarifying that an occasional reference to a
foreign language word or phrase by a lawyer or witness does not
offend the Jones Act).
Further, a violation of the English language requirement
constitutes reversible error whenever the appellant can
demonstrate that the untranslated evidence "has the potential to
affect the disposition of an issue raised on appeal." United
States v. Rivera-Rosario, 300 F.3d 1, 10 (1st Cir. 2002). However,
there is no prejudice from a Jones Act violation if the
untranslated evidence lacks such potential. Id.4 The prosecutor stated during his closing "[h]e tells us that he
was in a red guagua, in a red truck, to go to the area to provide
his services."
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We cannot find that there was a Jones Act violation in
this case. There is no dispute that testimony in question was
delivered in English. It is true that the English testimony was
peppered with Spanish colloquialisms. However, an occasional
reference to a Spanish word or words does not offend the Jones
Act.
Carela did not suffer any prejudice here. The disputed
statement lacks the potential to impact the disposition of the
issue raised on appeal. As has already been discussed in this
opinion, the record shows that there was ample evidence linking
Carela to the charged conduct. The passing references to "guagua"
and "tipo" lack any potential to change the outcome of this case.
Although the prosecutor may have attempted to translate "guagua"
during his closing remarks, the reference also lacked any potential
to prejudice Carela or to affect the disposition of the case.
In light of the foregoing, we conclude that there was no
violation of the Jones Act. We further conclude that Carela
suffered no prejudice.
D. Alleged Prosecutorial Misconduct
1. Background
Carela maintains that the prosecutor's closing and
rebuttal arguments constituted prosecutorial misconduct and merit
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reversal.5 Carela argues that the prosecutor improperly: (1) told
the jury that the red Ford Excursion was registered in Carela's
name when in fact it was not; (2) misrepresented the legal
significance of the draft contract by calling it a contract instead
of a draft contract and claiming that it certified the details of
the sale; and (3) implied that Carela was charged with a conspiracy
to possess with intent to distribute more than five kilograms of
cocaine, and substantive possession in an uncharged conspiracy.
According to Carela, the context of the prosecutor's
intentional misconduct must favor reversal because: (1) the
allegedly improper statements were made during closing and
rebuttal arguments after the court instructed the jury -- a
"delicate point in the trial process," United States v. Taylor, 54
F.3d 967, 977 (1st Cir. 1995); (2) the misconduct occurred after
the jury in the first trial had failed to convict him; and (3) the
United States Attorney's Office in the District of Puerto Rico,
where the case was tried, allegedly has a long-standing problem of
prosecutorial misconduct during closing arguments.
5 Carela argues that his Jones Act violations claims also qualify
as forms of prosecutorial misconduct. However, as we have already
stated in our preceding section, there was no Jones Act violation
in this case.
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2. Applicable Law and Analysis
Because Carela did not raise these objections during
trial, this Court reviews the prosecutor's comments under the plain
error standard. United States v. Glover, 558 F.3d 71, 77 (1st
Cir. 2009). In the context of prosecutorial misconduct, this
Court reverses a district court "only if the prosecutor's remarks
'so poisoned the well that the trial's outcome was likely
affected.'" United States v. Vázquez-Larrauri, 778 F.3d 276, 283
(1st Cir. 2015) (quoting United States v. Kasenge, 660 F.3d 537,
542 (1st Cir. 2011)). When determining whether there was
prosecutorial misconduct, we consider the following factors: "(1)
the severity of the prosecutor's misconduct, including whether it
was deliberate or accidental; (2) the context in which the
misconduct occurred; (3) whether the judge gave curative
instructions and the likely effect of such instructions; and (4)
the strength of the evidence against the defendant[]." Id.(citation and internal quotation marks omitted) (alteration in
original). We further note that when assaying the prosecutor's
remarks, context often determines meaning. United States v.
Sepúlveda, 15 F.3d 1161, 1187 (1st Cir. 1993). In borderline
cases, the standard of review can also figure importantly. Id."[I]n the absence of a contemporaneous objection it seems fair to
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give the arguer the benefit of every plausible interpretation of
her words." Id. (citations omitted).
The Government concedes that the Ford Excursion was not
registered to Carela. However, the Government argues that no
error resulted from a twice made comment during a long closing.
We note that an unintentional misrepresentation of the record may
constitute misconduct under certain circumstances. United States
v. Azubike, 504 F.3d 30, 38 (1st Cir. 2007).
Although the prosecutor's statements at issue were
inaccurate, they did not so poison the well that "the trial's
outcome was likely affected." Vázquez-Larrauri, 778 F.3d at 283
(citation omitted) (internal quotation marks omitted). In
particular, two factors render the prosecutor's comments harmless:
(1) "the district judge gave curative instructions" as to the
jury's role in weighing the evidence and determining guilt,
including effective direct reference to the evidentiary value to
be given to lawyers' closing arguments; and, most importantly and
as alluded to above, (2) "the strength of evidence against
[Carela]" (i.e. his admissions and the circumstantial evidence)
outweighs any risk of affecting Carela's substantial rights. Id.
Carela also takes issue with the prosecutor's statement
that the draft contract certified that the Ford Excursion was being
sold and that the draft agreement was "a very specific contract."
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The Government again concedes that the prosecutor's word choice
was far from ideal, but posits that these statements did not affect
the outcome of trial. We also agree with the Government on this
point. Although we encourage the Government to refrain from
utilizing this type of language during trial and to ensure that
its statements are factually accurate, we cannot conclude that
Carela suffered prejudice here. As we have discussed throughout
this opinion, there was an abundance of evidence against Carela in
this case. In fact, Carela himself admitted to being part of the
conspiracy. As such, we cannot conclude that the prosecutor's
gaffes poisoned the well and impacted the outcome of trial.
Carela further claims that the prosecutor improperly
implied that Carela was guilty of an uncharged conspiracy because
he purchased the Ford Excursion.
[Carela] needed a van. He bought it before in
July with other co-conspirators. As Mr. Edwin
Léon Léon explained to you, the transaction
was somebody came in and paid him cash for the
vehicle. When he was selling it, two vehicles
arrived, five or six individuals. He thought
he was selling to this individual, but then as
they were ready to sign the documents, he
said, “No, no, no. Please put it in the friend
of my relative or friend, Mr. Víctor Manuel
Carela.” And he has the documents to purchase
it.
That’s a conspiracy. More than two individuals
working together to accomplish what the object
of the conspiracy is in this case. (Emphasis
added)
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Although the use of the word "that" is somewhat
ambiguous, we read the prosecutor's statement as referring to the
charged conspiracy to smuggle cocaine and not a conspiracy to
purchase the Ford Excursion. Moreover, we emphasize that in the
absence of a contemporaneous objection, it seems fair to give the
Government the benefit of every plausible interpretation of the
words in dispute. Sepúlveda, 15 F.3d at 1187.
In light of the evidence against Carela, we conclude
that Carela failed to show that the prosecutor's statements
resulted in plain error.
E. Whether the Sentence was Unreasonable
1. Background
Lastly, Carela argues that his sentence was both
procedurally and substantively unreasonable. Carela attacks his
sentence on the ground that the court improperly considered
evidence in Spanish in violation of the Jones Act. In simpler
terms, the district court refused Carela's requested minor role
adjustment because it relied on evidence that Carela admitted to
driving a red "guagua." According to Carela, because there is no
English language evidence that supports a finding that Carela drove
the red Ford Excursion, his sentence is unreasonable.
Carela points out the following factors to support his
contention that he only played a minor role (i.e. did not occupy
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a position of trust): (1) "he was not trusted with the executed
contract or any other documents related to ownership" of the red
Ford Excursion; (2) he was not given the keys to the red Ford
Excursion; (3) he did not pay for the red Ford Excursion; (4) he
did not drive away in the red Ford Excursion at the time of sale;
(5) he was not paid in advance, or for that matter was never paid,
the $5,000 he was to receive for his services; and, finally, (6)
his role is notably minor if the broad context of the drug
smuggling conspiracy -- an international operation requiring
complex logistics management (i.e., coordination of travel from
Venezuela to Puerto Rico) and substantial investment of funds in
the product (i.e., cocaine), labor, and equipment (e.g., transport
Vessel) -- is taken into consideration. He thus avers that it was
clear error to deny his requested minor role adjustment.
2. Applicable Law and Analysis
This Court reviews sentencing decisions for
reasonableness based on a totality of the circumstances, and in a
bifurcated manner: first, for procedural reasonableness, and
second, for substantive reasonableness. United States v. Ayala-
Vázquez, 751 F.3d 1, 29 (1st Cir. 2014). The district court's
"legal determinations of the Sentencing Guidelines' meaning and
scope" are reviewed de novo, and its factual determinations are
reviewed for clear error. United States v. Bryant, 571 F.3d 147,
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153 (1st Cir. 2009). This Court will not "upset the sentencing
court's fact-based application of the guidelines unless it is
clearly erroneous." United States v. Santos-Batista, 239 F.3d 16,
21 (1st Cir. 2001) (citation omitted).
In order for a criminal defendant to qualify for a minor
role reduction under United States Sentencing Guidelines §
3B1.2(b), he must satisfy a two-pronged test: (1) "he must
demonstrate that he is less culpable than most of those involved
in the offenses of conviction;" and, (2) "he must establish that
he is less culpable than most of those who have perpetrated similar
crimes." United States v. Mateo-Espejo, 426 F.3d 508, 512 (1st
Cir. 2005) (citations omitted). Typically, "[r]ole-in-the-offense
determinations [e.g., minor-role adjustments] are notoriously
fact-sensitive." United States v. Ortiz-Santiago, 211 F.3d 146,
148 (1st Cir. 2000). We have held that in making these
determinations a "defendant who participates in only one phase of
a conspiracy may nonetheless be found to play a non-minor role in
the conspiracy as a whole." United States v. Vargas, 560 F.3d 45,
51 (1st Cir. 2009). Finally, it must be noted that "[r]eliable
hearsay is . . . admissible during sentencing proceedings."
United States v. Ramírez-Negrón, 751 F.3d 42, 52 (1st Cir. 2014).
Here, we have already found that there is no Jones Act
violation. Further, the district court did not commit a Jones Act
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violation when it stated that Carela "drove the Ford Excursion."
The district court's statement did not prejudice Carela such that
reversal is required here. In fact, the district court refused
Carela's proposed minor role adjustment on the grounds that Carela
(1) used his name to purchase the red Ford Excursion that was used
to bring 15 cans of gasoline to the landing site in order to refuel
the transport vessel; (2) the red Ford Excursion was going to be
used to transport 38 bales of cocaine found at the vessel landing
site; (3) Carela was paid $5,000; and (4) when Carela used his
name to purchase the red Ford Excursion there were other
individuals with him and it was one of these other individuals who
paid for the Ford Excursion.
Carela's involvement in the charged offenses was not
dependent on his driving of the Ford Excursion. Thus, even if the
brief reference to Carela driving the Ford Excursion could have
constituted a Jones Act violation, it would not have prejudiced
Carela.
Further, denying the minor role adjustment to Carela did
not constitute clear error. Carela admitted to loading the
cocaine onto a vehicle and transporting the cocaine. Carela also
admitted that he had been hired to refuel the vessel that was
transporting narcotics.
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Carela failed to establish that he was less culpable
than the other participants in the offense, or indeed that he was
less culpable than similarly situated offenders. A lack of profit
or success in the criminal enterprise does not trigger a downward
adjustment for a minor role. Cf. United States v. García-Ortiz,
657 F.3d 25, 29 (1st Cir. 2011) ("The essential predicate is a
showing that the defendant is both less culpable than his
confederates . . . and less culpable than the mine-run of those
who have committed similar crimes." (citing United States v.
Ocasio, 914 F.2d 330, 333 (1st Cir. 1990))). The record makes
clear that the trial court fully considered the relevant factors
in denying the minor role adjustment.
We further note that the district court varied downward
when sentencing Carela from a suggested 235 to 293 months to a
term of 196 months because the court felt that the guideline range
was too harsh.
III. Conclusion
Having found no reversible error in the proceedings of
the trial court, Carela's sentence and conviction are affirmed.
Affirmed.
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