United States v. Rosario , 640 F. App'x 18 ( 2016 )

Not for publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
Nos. 14-1584
14-1605
UNITED STATES OF AMERICA,
Appellee,
v.
ALEJANDRO MARTINEZ AND PAULO ROSARIO,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Barron and Stahl, Circuit Judges,
and Sorokin,* District Judge.
Merritt Schnipper for appellant Martinez.
Paul M. Glickman, with whom Glickman Turley LLP was on brief,
for appellant Rosario.
David M. Lieberman, Attorney, Criminal Division, Appellate
Section, U.S. Department of Justice, with whom Rosa Emilia
Rodriguez-Velez, United States Attorney, Nelson J. Perez-Sosa,
Appellate Chief, Leslie R. Caldwell, Assistant Attorney General,
and Sung-Hee Sue, Deputy Assistant Attorney General, were on brief,
for appellee.
March 15, 2016
____________________
* Of the District of Massachusetts, sitting by designation.
PER CURIAM. Alejandro Martinez and Paulo Rosario were
traveling on a small vessel in the strait between the Dominican
Republic and Puerto Rico when a United States Coast Guard ("USCG")
patrol plane spotted them jettisoning into the sea what was later
determined to be bales of cocaine. Shortly thereafter, Martinez
and Rosario were apprehended and brought to Puerto Rico, where
they stood trial together on drug conspiracy charges. Both men
now appeal from their convictions. After careful review, we
AFFIRM.
I. Facts and Background
A. The Ill-Fated Voyage
In the early evening hours of August 16, 2012, a USCG
patrol aircraft was operating above the Mona Passage, a roughly
eighty-mile stretch of Atlantic Ocean between the Dominican
Republic and Puerto Rico. The crew spotted what appeared to be a
small fishing vessel, or "yola," heading in the direction of Puerto
Rico. As the aircraft approached, two men aboard the yola were
seen throwing four white bales overboard, before changing course
and heading back toward the Dominican Republic. Summoning a USCG
cutter, the flight crew maintained visual contact with the yola.
At approximately the same time, a Customs and Border Patrol boat
was dispatched to retrieve the bales that had been thrown
overboard. The bales were recovered and were found to contain a
total of some sixty-seven kilograms of cocaine.
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In short order, the USCG cutter arrived and intercepted
the yola. USCG personnel boarded the yola and questioned its two
occupants, Martinez and Rosario, one of whom (it is not clear
which) indicated that he was in the process of registering the
yola in the Dominican Republic. Aside from the name "Alicantino"
painted on the hull, however, the yola had no visible markings,
did not carry a national flag, and there was no other evidence of
registry onboard.
In response to an inquiry by the USCG, authorities in
the Dominican Republic indicated that they had no record of the
yola. As a result, in accordance with the Maritime Drug Law
Enforcement Act ("MDLEA"), 46 U.S.C. § 70501 et seq., the USCG
concluded that the yola was "a vessel without nationality" and was
therefore subject to the jurisdiction of the United States. See
46 U.S.C. §§ 70502(c)(1)(A) and (d)(1)(C). Accordingly, Martinez
and Rosario were taken into custody, transported to Puerto Rico,
and turned over to the Drug Enforcement Agency ("DEA"). Several
days later, in an interview with DEA Agent Jose Torres, Rosario
waived his Miranda rights and confessed, implicating both himself
and Martinez in a conspiracy to smuggle cocaine from the Dominican
Republic to Puerto Rico.
B. Indictment and Trial
Martinez and Rosario were both indicted on one count of
conspiracy to possess with intent to distribute five kilograms or
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more of cocaine on board a vessel subject to the jurisdiction of
the United States, in violation of the MDLEA, and one count of
conspiracy to import five kilograms or more of cocaine into the
United States, in violation of 21 U.S.C. §§ 952, 960, and 963. On
a motion in limine filed by the government, the district court
found that MDLEA jurisdiction existed because the yola was, in
fact, a vessel without nationality subject to United States
jurisdiction.1
The case proceeded to trial. Over Martinez's objection
(and his request for a severance), the jury heard testimony from
DEA Agent Torres, who described Rosario's confession, albeit
without directly stating that the confession also implicated
Martinez. The jury returned guilty verdicts as to the defendants
on both counts of the indictment. Subsequently, Rosario was
sentenced to concurrent 210-month sentences on each of the two
counts.2 Martinez, who had sustained a prior felony drug
conviction and was subject to a twenty-year mandatory minimum,
1
MDLEA jurisdiction "in this context refers to the
enforcement reach of the statute - not federal court subject-
matter jurisdiction, which extends to any federal felony." See
United States v. Matos-Luchi, 627 F.3d 1, 4 n.4 (1st Cir. 2010).
While Rosario and Martinez both challenge the finding of MDLEA
jurisdiction, there is no dispute that the district court had
jurisdiction to hear the second count of the indictment, conspiracy
to import five kilograms or more of cocaine.
2
These sentences were later reduced to 168 months as a
result of a motion filed pursuant to 18 U.S.C. § 3582(c)(2).
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received concurrent 262-month sentences.
Martinez and Rosario both appeal their convictions, but
on different grounds. Because the bases of the appeals vary, we
consider each separately.
II. Rosario's Appeal
As indicated, the district court found that jurisdiction
existed under the MDLEA because the court concluded that the yola
was properly deemed a vessel without nationality. Rosario's appeal
is devoted solely to challenging this finding. Our review of the
district court's finding of MDLEA jurisdiction is de novo. United
States v. Mitchell-Hunter, 663 F.3d 45, 49 (1st Cir. 2011).
A. The MDLEA
The MDLEA makes it unlawful to "knowingly or
intentionally . . . possess with intent to . . . distribute[] a
controlled substance on board . . . a vessel subject to the
jurisdiction of the United States." 46 U.S.C. § 70503(a)(1). This
prohibition "applies even though the act is committed outside the
territorial jurisdiction of the United States." Id. at § 70503(b).
In relevant part, the term "vessel subject to the
jurisdiction of the United States" is defined to include "a vessel
without nationality." Id. at § 70502(c)(1)(A). A "vessel without
nationality," in turn, includes one "aboard which the master or
individual in charge makes a claim of registry and for which the
claimed nation of registry does not affirmatively and
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unequivocally assert that the vessel is of its nationality." Id.
at § 70502(d)(1)(C). Of importance here, the MDLEA provides that
"[t]he response of a foreign nation to a claim of registry . . .
is proved conclusively by certification by the Secretary of State
or the Secretary's designee." Id. at § 70502(d)(2).
B. The District Court's Finding of MDLEA Jurisdiction
As we have described, when USCG personnel boarded the
yola and questioned Martinez and Rosario, one of them made a claim
of Dominican registry by stating that he was in the process of
registering the yola in the Dominican Republic. See id. at
§ 70502(e)(3) (defining a "claim of nationality or registry" to
include "a verbal claim of nationality or registry by the master
or individual in charge of the vessel"). This claim of registry
triggered an obligation on the part of the USCG to contact the
Dominican authorities with a request that they confirm or deny the
yola's registry. Id. at § 70502. As evidenced by documentation
prepared by the USCG at the time of the interdiction, the record
suggests that the USCG queried the Dominican authorities regarding
the registry of the "Alicantino," as was painted on the yola's
hull. The Dominican authorities responded, however, by indicating
that they had no record of a vessel by the name of the "Alcantino,"
seemingly a misspelling of "Alicantino."
Prior to trial, the government filed a motion in limine
seeking to establish MDLEA jurisdiction. See id. at § 70504(a)
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("Jurisdictional issues . . . are preliminary questions of law to
be determined solely by the trial judge."). Accompanying the
government's motion was a certification authored by Commander
Salvatore Fazio of the USCG, in his capacity as the designee of
the Secretary of State. In relevant part, the certification
stated:
On or about August 17, 2012, United States law
enforcement personnel detected a yola vessel
approximately 32 nautical miles southwest of Cabo
Rojo, Puerto Rico . . . . United States law
enforcement personnel conducted a right-of-visit
boarding of the vessel. Upon inquiry, one of the
two individuals on board identified himself as the
master of the vessel, and claimed Dominican
nationality for the yola. . . . [The USCG] requested
that the Government of the Dominican Republic
confirm or deny the vessel's registry. The . . .
Dominican Republic responded that it could neither
confirm nor deny the claim that the vessel was
registered in the Dominican Republic.
In a short order issued prior to trial, the district
court found MDLEA jurisdiction, reasoning that "Commander Fazio is
the Secretary of State's designee and . . . his certification
conclusively proves that the vessel in question is a vessel without
nationality as the Dominican authorities did not affirmatively and
unequivocally assert that the vessel is of Dominican nationality."
Later, after trial, Martinez and Rosario filed a joint
motion for acquittal and dismissal, arguing that the district court
had erred in finding MDLEA jurisdiction. The district court denied
this motion in a lengthy written order. See United States v.
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Rosario, 17 F. Supp. 3d 144 (D.P.R. 2014).
C. Rosario's Challenges to MDLEA Jurisdiction
Rosario raises three arguments contending that the
district court erred in finding MDLEA jurisdiction. First, he
argues that the USCG did not follow MDLEA protocol, as evidenced
by the fact that the Dominican authorities responded with a
misspelled version of the yola's name. Second, he contends that
the USCG certification was inadequately detailed. Finally, he
argues that the district court made a series of factual and
procedural blunders in finding MDLEA jurisdiction. We find,
however, that none of these arguments merits reversal.
i. Alcantino v. Alicantino
The record appears to indicate that the USCG contacted
the Dominican authorities with a request that it verify the
nationality of the "Alicantino," as was painted on the yola's hull.
The Dominican authorities responded, however, with an indication
that they had no record of the "Alcantino." Rosario challenges
the district court's finding of MDLEA jurisdiction based on this
discrepancy, but we conclude, based on the terms of the MDLEA,
that he does not have standing to raise such a challenge. In
relevant part, the MDLEA provides:
A person charged with violating [the MDLEA] . . .
does not have standing to raise a claim of failure
to comply with international law as a basis for a
defense. A claim of failure to comply with
international law in the enforcement of this
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chapter may be made only by a foreign nation.
46 U.S.C. § 70505; see also Mitchell-Hunter, 663 F.3d at 51 ("[T]he
purpose of the MDLEA's jurisdictional requirement is not to protect
a defendant's rights, but instead to maintain comity between
foreign nations . . . .").
As Rosario points out, our cases distinguish between
claims of a failure to comply with international law (as that term
is contemplated in the MDLEA), which a defendant may not raise,
and claims of a failure to comply with United States law, which a
defendant may raise. For example, in United States v. Maynard,
888 F.2d 918 (1st Cir. 1989), we held that the defendant had
standing to challenge the district court's finding of MDLEA
jurisdiction based on the fact that the USCG had failed to contact
British Virgin Islands ("BVI") authorities before seizing his
vessel, even though he was flying a BVI flag and had likely made
a verbal claim of BVI nationality. Id. at 925-27. We reasoned
that the defendant could bring such a challenge because he sought
to prove that the USCG failed to comply with the MDLEA, a United
States statute, by not making contact with the BVI authorities.
Id. at 927. In contrast, in United States v. Cardales-Luna, 632
F.3d 731 (1st Cir. 2011), we held that a defendant could not argue
that a USCG certification was insufficient to confer MDLEA
jurisdiction merely because it omitted certain details about the
process by which the USCG contacted Bolivian authorities following
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the defendant's claim of nationality. Id. at 737. We reasoned
that the MDLEA does not permit a defendant to "look behind the
State Department's certification to challenge its representations
and factual underpinnings." Id. (quoting United States v.
Guerrero, 114 F.3d 332, 341 (1st Cir. 1997)).
Mindful of this distinction between challenges based on
"international" and "domestic" law, Rosario attempts to portray
his appeal as one rooted in the USCG's failure to comply with the
substantive provisions of the MDLEA. But, as we have said, the
record strongly suggests that the USCG made the proper inquiry
and, indeed, there is no evidence to the contrary. Rosario claims,
however, that "[t]he Dominican Republic had no chance to deny the
registry . . . because its response [seemingly] concerned a
different vessel." In other words, Rosario himself appears to
attribute whatever error or miscommunication occurred not to the
USCG, but to the Dominican authorities. Rosario's claim fails,
therefore, because it is plainly an effort to "look behind" the
USCG certification and to challenge its factual underpinnings, see
Cardales-Luna, 632 F.3d at 737, an effort that the MDLEA does not
give him standing to undertake. See 46 U.S.C. § 70505; Mitchell-
Hunter, 663 F.3d at 51.
ii. Insufficient Detail
Rosario next contends that, as a matter of law, State
Department certifications must meet a "baseline level of
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specificity" by including, for example, the "name or other
identifying characteristics" of the vessel in question. Rosario
argues that the certification at issue in this case was
insufficiently specific because it referred only to a "yola vessel
approximately 32 nautical miles southwest of . . . Puerto Rico"
and did not provide additional identifying details.
We need not reach Rosario's broader claim because we
conclude that, within the confines of this case, his argument is
without merit. The record establishes that the yola was a small
(approximately twenty-one-foot) and primitive vessel3 powered by a
single outboard motor. Aside from the name "Alicantino" painted
on the hull, the yola had no visible markings. It did not display
a registration number, a hailing port, or a national flag. What
is more, when USCG crews boarded the yola, they were unable to
locate registration paperwork or any other documentation that they
could use to confirm the identity of the vessel or its passengers.
True, as Rosario points out, the USCG certification did
not identify the name of the yola as the Alicantino. But, given
the lack of any further identifying information on the vessel, the
USCG certification was not defective based on its purported lack
3 To illustrate the point, when the USCG cutter reached
the yola, its engine had died and Martinez and Rosario were
attempting to bail water using a bucket. The cutter attempted to
tow the yola to port, but it promptly took on water and sank.
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of specificity.4
iii. Factual and Procedural Errors
Finally, Rosario urges reversal on grounds that the
district court committed a series of factual and procedural errors
in finding MDLEA jurisdiction. This claim is rooted in statements
made by the district court during a hearing conducted during the
trial (outside the presence of the jury), as well as a written
statement contained in the district court's post-trial order
denying the defendants' motion for acquittal and dismissal.
We begin with the hearing, which opened with the
government moving to introduce into evidence the USCG
certification. A series of objections by the defendants followed.
In the course of a lengthy ensuing discussion between counsel and
the district court, the court made statements suggesting it
believed that: (1) evidence of the defendants' jettisoning of the
cocaine was admissible based on the plain view exception to the
Fourth Amendment; (2) the USCG had a right to seize the yola based
on its presence in the so-called contiguous zone;5 and (3) the
4
Again limiting our inquiry to these facts, we find no
merit to Rosario's claim that an unspecific certification violates
due process by posing a risk that one vessel might be mistaken for
another. Rosario does not dispute that he was aboard the yola
described in the USCG certification, and there were no other
vessels anywhere near the yola at the time it was intercepted.
5
The contiguous zone extends twenty-four miles from the
coastline of the United States, including Puerto Rico. See 64
Fed. Reg. 48,701 (Sept. 2, 1999).
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strength of the evidence was such that the defendants' guilt was
a "slam dunk." Rosario contends that these statements were simply
incorrect, evinced procedural misunderstandings by the district
court, and effectively relieved the government of its burden to
prove MDLEA jurisdiction. See United States v. Matos-Luchi, 627
F.3d 1, 5 (1st Cir. 2010) (holding that the government must
establish MDLEA jurisdiction by a preponderance of the evidence).
We have carefully reviewed the hearing transcript, and
while the district court and counsel often ranged far afield in
the course of their discussion, we find no reason to disturb the
district court's finding of MDLEA jurisdiction. Most importantly,
as we have described, the district court had already determined,
prior to trial, that MDLEA jurisdiction existed by virtue of the
yola's status as a vessel without nationality. We thus find no
merit to Rosario's claim that the district court's purported
misstatements during the hearing, which occurred more than a week
later, contributed to an erroneous finding of MDLEA jurisdiction.
Rosario also directs our attention to the district
court's post-trial written order denying the defendants' motion
for acquittal and dismissal, in which the district court wrote:
Defendant Rosario alleges that "[f]or the United
States to have jurisdiction over a vessel in the
high seas, and over the occupants, the government
must prove that the vessel is a vessel without
nationality." The court disagrees, as jurisdiction
is not an element of 21 U.S.C. §§ 952, 960, 963.
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Rosario, 17 F. Supp. 3d at 152 (citations omitted). Rosario urges
us to find that the district court's "disagree[ment]" with his
statement is further evidence that the district court relieved the
government of its burden to establish MDLEA jurisdiction.
We reject this argument because the district court's
statement was, in fact, legally correct. The district court based
its disagreement on the fact that MDLEA jurisdiction is not an
element of 21 U.S.C. §§ 952, 960, and 963. These are the statutory
provisions under which the defendants were charged in count two of
the indictment, charging conspiracy to import five kilograms or
more of cocaine, not in the MDLEA count. Thus, the district
court's statement was correct because it is true that MDLEA
jurisdiction is not an element of that offense. Thus, while the
district court's statement was arguably confusing, we do not view
it as an indication that the district court improperly relieved
the government of its burden to prove MDLEA jurisdiction on the
count that required it.6
For all of these reasons, we reject Rosario's challenges
6 A later passage in the district court's opinion states
that "the USCG complied with due diligence at the time of the
interdiction . . . ." Rosario, 17 F. Supp. 3d at 152. This
statement immediately followed a citation to Matos-Luchi, where we
first held that the government bears the burden of proving MDLEA
jurisdiction by a preponderance of the evidence. We view this as
an indication that the district court properly construed the
jurisdictional burden as falling on the government.
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to the district court's finding of MDLEA jurisdiction.
III. Martinez's Appeal
We turn next to Martinez, who raises a separate set of
issues. We begin with his jurisdictional argument that the USCG
certification contained inadmissible hearsay, then we consider his
arguments related to the district court's admission of Rosario's
confession and concomitant refusal to sever their joint trial.7
A. Hearsay
Like Rosario, Martinez challenges the district court's
finding of MDLEA jurisdiction. His argument may be summarized as
follows: the government was required to establish that the yola
was a vessel without nationality. To do so, the government needed
to prove both that: (1) "the master or individual in charge" made
a claim of registry; and (2) "the claimed nation of registry d[id]
not affirmatively and unequivocally assert that the vessel [wa]s
of its nationality." 46 U.S.C. § 70502(d)(1)(C). Martinez
concedes that, under the MDLEA, "[t]he response of [the] foreign
nation . . . is proved conclusively" by the USCG certification.
Id. at § 70502(d)(2). Martinez notes, however, that the only
7 We acknowledge Martinez's argument that the district
court violated the Sixth Amendment by using his prior conviction
as a basis for applying a mandatory minimum sentence without a
jury finding of proof beyond a reasonable doubt. As Martinez
concedes, we are bound by precedent to reject this argument. See
United States v. Paladin, 748 F.3d 438, 451-52 (1st Cir. 2014)
(citing Alleyne v. United States, 133 S. Ct. 2151 (2013)).
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evidence establishing that either he or Rosario made a claim of
registry was contained in the USCG certification, which stated
that "[u]pon inquiry, one of the two individuals on board
identified himself as the master of the vessel, and claimed
Dominican nationality for the yola." Rosario contends that because
neither USCG Commander Fazio, nor the USCG sailor to whom Rosario
or Martinez allegedly made this statement, testified at trial,
this portion of the certification constituted inadmissible
hearsay. Absent this evidence, he argues, the government did not
carry its burden to prove MDLEA jurisdiction.8
On at least two occasions, the First Circuit has
considered and rejected nearly identical arguments on grounds that
State Department certifications are admissible as public records.
See United States v. Angulo-Hernández, 565 F.3d 2, 11 (1st Cir.
2009) (citing Federal Rule of Evidence 803(8) and holding that a
State Department certification is admissible as a public record);
United States v. Romero, 32 F.3d 641, 650 (1st Cir. 1994) ("The
hearsay exception under [Rule 803(8)] accounts for all of the
subsidiary statements relayed by the State Department operatives
to the declarant . . . .").
8As we said above, our review of the district court's
finding of MDLEA jurisdiction is de novo. Mitchell-Hunter, 663
F.3d at 49. The government urges us to apply plain error review,
but we need not resolve this issue because we conclude that
Martinez's hearsay challenge fails even under the more favorable
de novo standard.
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Martinez acknowledges our holding in Angulo-Hernández,
but he seeks to circumvent it by drawing a distinction between
hearsay statements relating to the defendant's claim of registry,
and those relating to the claimed nation's response. By providing
in the MDLEA that the claimed nation's response may be conclusively
proven by State Department certification, Martinez argues that
Congress intentionally omitted a similar provision allowing for
conclusive proof of the defendant's claim of registry.
Angulo-Hernández and Romero expressly held that State
Department certifications are admissible as public records. The
government does not contend that those cases treat the certificate
as conclusive as to whether or what claim of registry was made.
But, the certificate is some evidence - and, in this case,
uncontested evidence - of what claim of registry was made. In
sum, in our view, the reasoning of Angulo-Hernández and Romero is
sound, and we see no reason to distinguish those cases here.9
9
We recognize that Martinez contends that a portion of
the certificate should be excluded under the "law enforcement"
exception to the public records exception. See Fed. R. Evid.
803(8); United States v. Dowdell, 595 F.3d 50, 70 (1st Cir. 2010).
But, as we have said, aside from the name "Alicantino" painted on
the yola's hull, it had no other markings and did not carry
registration paperwork or a national flag. Thus, in our view, the
only possible explanation for the USCG's decision to contact the
Dominican authorities, which the certificate conclusively shows
did occur, was a verbal claim of Dominican registry by either
Martinez or Rosario. Indeed, the MDLEA provides that a vessel is
stateless when no claim of registry is made. See 46 U.S.C.
§ 70502(d)(1)(B). Thus, Martinez's contention is of no
significance to his challenge to MDLEA jurisdiction.
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B. The Admission of Rosario's Confession
Martinez next assigns error to the district court's
admission of Rosario's confession, which he argues prejudiced him
in three ways. First, he contends that the admission of the
confession violated his Sixth Amendment confrontation rights.
Second, he argues that the prosecutor committed misconduct by
referencing Rosario's confession as evidence of Martinez's guilt
during her closing argument. Finally, Martinez maintains that the
district court erred by denying his request for a severance. We
consider these arguments in turn.
i. The Sixth Amendment
We begin with Martinez's claim that the district court's
admission of Rosario's confession violated the Sixth Amendment.
Our review of this claim is de novo, but a conviction may stand
even in the face of an error, provided that the error was harmless.
United States v. Vega Molina, 407 F.3d 511, 519, 524 (1st Cir.
We can envision only one scenario, albeit a highly
unlikely one, in which a defendant may have viable grounds on which
to contest the contents of a certificate as they relate
specifically to his claim of registry. Consider a defendant who
maintains that although the certificate states that he made a claim
of registry in Country X, he actually made a claim of registry in
Country Y and the USCG then contacted the wrong nation. This
unlikely scenario is the only one we can foresee in which a
defendant would have a basis on which to challenge statements in
the certificate describing his claim of registry. Such a
challenge, to the extent that one was to arise, would be properly
brought on the basis of the USCG’s failure to comply with the
substantive provisions of the MDLEA. See Maynard, 888 F.2d at
927.
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2005).
The Sixth Amendment's Confrontation Clause guarantees a
criminal defendant the right "to be confronted with the witnesses
against him." U.S. Const. amend. VI. "The primary purpose of
confrontation is 'to secure for the opponent the opportunity of
cross-examination.'" United States v. Celestin, 612 F.3d 14, 19
(1st Cir. 2010) (quoting Delaware v. Van Arsdall, 475 U.S. 673,
678 (1986)). Thus, except in limited circumstances, "out-of-court
statements of a non-testifying defendant . . . may not be used
against a jointly tried codefendant." Vega Molina, 407 F.3d at
518-19.
A trio of Supreme Court cases has shaped the law on the
admissibility of extrajudicial confessions in multi-defendant
cases. In Bruton v. United States, 391 U.S. 123 (1968), the
Supreme Court found that a non-testifying codefendant's
"powerfully incriminating" confession, which "expressly
implicat[ed]" a jointly-tried defendant, was inadmissible,
reasoning that "in the context of a joint trial we cannot accept
limiting instructions as an adequate substitute for [the jointly-
tried defendant's] constitutional right of cross-examination."
Id. at 124 n.1, 135-37. Later, however, the Supreme Court declined
to find a Bruton error where a codefendant's confession had been
redacted to eliminate any reference to the defendant, even though
the confession implicated the defendant when linked to other
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evidence offered at trial. See Richardson v. Marsh, 481 U.S. 200,
208 (1987). Finally, a third case, Gray v. Maryland, 523 U.S. 185
(1998), focused on the methods used by the prosecution to redact
a codefendant's confession, and the risk that the jury might infer
that a jointly-tried defendant was the subject of the redaction.
See id. at 196 ("The inferences at issue here involve statements
that, despite redaction, obviously refer directly to someone,
often obviously the defendant, and which involve inferences that
a jury ordinarily could make immediately . . . .").
Rosario's confession was described to the jury by DEA
Agent Torres, who offered the following summary:
According to Mr. Rosario . . . on August 15, 2012,
he received a call from the other drug associates
that he needed to . . . be at a meeting in the
Higuey area of the Dominican Republic. He attended
the meeting with his associates. And from that
meeting, it was agreed for him to move to another
location. Prior to moving to that location, he
indicated that he saw the bales [of cocaine]. From
there it was agreed for him to move to the area of
Valla Hibe, where he moved. And at that location
they got the boat, the vessel, the yola. . . . And
Mr. Rosario moved to an island by the name of Isla
Sabana, Valla Hibe. And from there . . . Mr.
Rosario received the drug load, the cocaine. And
Mr. Rosario from there departed to Puerto Rico.10
Martinez argues that although Torres offered a sanitized
version of Rosario's confession, it was nevertheless "powerfully
incriminating" because of the circumstances under which Martinez
10Before Torres testified, the district court instructed
him not to reveal that Rosario's confession implicated Martinez.
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and Rosario were apprehended and tried. More specifically,
Martinez notes that he and Rosario were tried together as the sole
defendants in a drug conspiracy case, after having been found
aboard the yola in the middle of the ocean throwing cocaine into
the sea. Martinez observes that Rosario's confession provided the
only explanation of how he found himself in that unfortunate
predicament. He argues, in other words, that the jury could easily
and immediately infer that he was the "associate" referred to in
Rosario's confession, or that he was otherwise a knowing and
willing participant in the conspiracy.
Assessing a claimed Bruton error entails a fact- and
context-specific inquiry. See Vega Molina, 407 F.3d at 520 ("The
application of Bruton, Richardson, and Gray to redacted statements
. . . requires careful attention to both text and context, that
is, to the text of the statement itself and to the context in which
it is proffered."); United States v. Schwartz, 541 F.3d 1331, 1351
(11th Cir. 2008) ("[A] defendant's confrontation right is violated
when the court admits a codefendant statement that, in light of
the Government's whole case, compels a reasonable person to infer
the defendant's guilt." (footnote omitted)). "A particular case
may involve numerous events and actors, such that no direct
inference plausibly can be made that a neutral phrase like 'another
person' refers to a specific codefendant." Vega Molina, 407 F.3d
at 520. Or, "[a] different case may involve so few defendants
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that the statement leaves little doubt in the listener's mind about
the identity of 'another person.'" Id.
Here, we need not decide whether the admission of
Rosario's confession constituted a Bruton error because we
conclude that, even if it was, the government has nonetheless
carried its burden to show that any such error was harmless beyond
a reasonable doubt. See United States v. Cabrera-Rivera, 583 F.3d
26, 36 (1st Cir. 2009); Vega Molina, 407 F.3d at 524. In assessing
harmlessness, we consider, among other factors, the overall
strength of the evidence and the centrality of the confession to
the prosecution's case. Cabrera-Rivera, 583 F.3d at 36.
As an initial matter, Agent Torres's description of
Rosario's confession was but one component of the government's
case. Rather than building its case with the confession as its
cornerstone, the government instead largely trained its focus on
the events leading up to and during the interdiction of the yola,
as recounted by USCG personnel who were directly involved.
What is more, even setting aside Rosario's confession,
the evidence of Martinez's guilt on both counts of the indictment
was overwhelming. The location and circumstances of Martinez and
Rosario's apprehension, as conveyed to the jury in extensive
detail, effectively shut the door on any explanation other than a
conspiratorial effort to import cocaine from the Dominican
Republic to Puerto Rico. Martinez and Rosario were discovered in
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the middle of a roughly eighty-mile stretch of open ocean heading
in the direction of Puerto Rico. When USCG personnel aboard a
patrol airplane first spotted them, they began to jettison vast
quantities of cocaine from their small, open vessel. That vessel,
some twenty-one feet in length, was underpowered, with a single
outboard engine, and was leaking to the point that Martinez and
Rosario were forced to bail water with a bucket in an ultimately
futile attempt to keep it from sinking. In a word, the yola was
hardly seaworthy and, in any event, had no apparent business being
in the middle of the ocean.
The only other possible explanation for Martinez's
presence on the yola was that he had simply hitched a ride from
the Dominican Republic to Puerto Rico without knowing that there
were vast quantities of cocaine onboard. Given the size, layout,
and condition of the yola, and the distance of the passage, this
explanation is laughably implausible.11 We thus conclude that,
even if the district court's admission of Rosario's confession
constituted a Bruton error (an issue we do not decide), any such
11 The explanation is even more implausible when
considered in light of the record. The jury heard testimony from
law enforcement officers that yolas used to smuggle drugs carry at
least two crewmen, in order to prevent one from absconding with
the product. On top of that, the evidence showed that the yola
was an open vessel with nowhere for Rosario to hide the cocaine
from Martinez even if he tried. One of the USCG airmen testified
that the bales were visible from the air near the yola's bow.
Indeed, even Martinez did not make that argument.
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error was harmless because there is no reasonable possibility that
the confession here contributed to the conviction. See Schneble
v. Florida, 405 U.S. 427, 432 (1972).
ii. The Prosecutor's Closing Argument
Martinez next claims that the prosecutor committed
misconduct during her closing argument by urging the jury to
convict him on the basis of Rosario's confession, a line of
argument that Bruton and its progeny plainly prohibit. See Vega
Molina, 407 F.3d at 522 (assigning error where the prosecutor's
closing argument "specifically mentioned [a codefendant's]
confession and implored the jury to infer that the 'another person'
reference in the redacted confession was, in fact, a reference to
[the defendant]"). Martinez did not lodge a contemporaneous
objection at trial, so our review is for plain error. United
States v. Kasenge, 660 F.3d 537, 541 (1st Cir. 2011). To prevail,
Martinez must show "(1) that an error occurred (2) which was clear
or obvious and which not only (3) affected [his] substantial
rights, but also (4) seriously impaired the fairness, integrity,
or public reputation of judicial proceedings." United States v.
Duarte, 246 F.3d 56, 60 (1st Cir. 2001).
The relevant portion of the prosecutor's closing
argument is as follows:
[W]e heard testimony [Rosario] admitted his
involvement in this scheme. . . . And of course we
can't take that statement and apply it to the other
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defendant. So, let's look at some of the facts
that will help you decide was [Martinez] just
getting a ride to Puerto Rico? . . . Ladies and
gentlemen, I submit that there's ample . . .
circumstantial evidence that [Martinez] was on that
vessel knowing there were drugs onboard - he was
sitting on top of them or they were right in front
of him - and he threw them overboard when the law
enforcement came. And we know that he entered into
this agreement by the surrounding circumstances
because what were they going to do when they arrived
to Puerto Rico? . . . They were bringing [the drugs]
to Puerto Rico to give them to someone else. . . .
And you also heard from multiple law enforcement
witnesses that . . . they have never been involved
in [an] interdiction with just one person on the
boat. It's always multiple people . . . because
you need someone to make sure the other guy isn't
going to steal $2 million worth of drugs. So,
ladies and gentlemen, those are the facts. . . .
And, again, I will submit that the totality of the
circumstances, the circumstantial evidence along
with the direct evidence such as [Rosario's]
incriminating statements with regards to his
actions support a finding of guilt with regards to
both defendants entering into agreements to commit
those two offenses.
Martinez claims that the prosecutor's closing argument
constituted misconduct both because its factual content was drawn
from Rosario's confession, and because its concluding sentence
expressly urged the jury to convict Martinez on the basis of the
confession. We have considered both arguments, but conclude that
there was no error, much less one that was clear or obvious.
First, contrary to Martinez's claim, the factual content of the
closing argument was drawn not from the confession, but from other
evidence at trial. For example, as we have said, the jury heard
testimony that the cocaine was plainly visible aboard the yola,
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and that there are usually at least two crewmen aboard yolas used
to smuggle drugs. The prosecutor's closing argument fairly drew
on this evidence to argue that Martinez was a participant in the
conspiracy, rather than simply an innocent passenger.
What is more, while the last sentence of the above-cited
excerpt may have been confusingly phrased, it does not appear to
us to have been an attempt by the prosecutor to urge Martinez's
conviction on the basis of Rosario's confession. Rather, the
prosecutor laid out three bases on which the jury could return
guilty verdicts: (1) "the totality of the circumstances"; (2) "the
circumstantial evidence"; and (3) "the direct evidence such as
[Rosario's] incriminating statements with regards to his actions."
(emphasis added). It thus appears that the prosecutor urged the
jury to use Rosario's confession as evidence of his guilt, and the
totality of the circumstances and the circumstantial evidence as
evidence of the guilt of both defendants. This interpretation is
particularly logical in light of the prosecutor's earlier
admonition that "we can't take [Rosario's] statement and apply it
to [Martinez]." See United States v. Sepulveda, 15 F.3d 1161,
1187 (1st Cir. 1993) ("[I]n the absence of a contemporaneous
objection it seems fair to give the arguer the benefit of every
plausible interpretation of her words."). In sum, we do not
discern clear or obvious error on the part of the district court
in failing to identify and sua sponte remedy this statement.
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iii. Severance
Finally, Martinez contends that the district court erred
by denying his requests for a severance. "We review a severance
ruling 'for any manifest abuse of discretion which deprived
appellant of a fair trial and resulted in a miscarriage of
justice.'" Celestin, 612 F.3d at 19 (quoting United States v.
Peña-Lora, 225 F.3d 17, 33 (1st Cir. 2000)).
We have already concluded that, even if the district
court's admission of Rosario's confession constituted a Bruton
error, any such error was harmless. For the same reasons, we
conclude that Martinez cannot demonstrate that the denial of a
severance deprived him of a fair trial or resulted in a miscarriage
of justice. See United States v. McLaughlin, 957 F.2d 12, 18 (1st
Cir. 1992) (noting a defendant "must make a strong showing of
prejudice" to prevail on an appeal from the denial of a motion to
sever).
IV. Conclusion
For the foregoing reasons, the defendants' convictions
are AFFIRMED.
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