United States v. Espinal-Almeida , 699 F.3d 588 ( 2012 )

United States Court of Appeals
For the First Circuit
No. 10-1086
UNITED STATES,
Appellee,
v.
CARLOS ESPINAL-ALMEIDA, a/k/a Carlo,
Defendant, Appellant,
No. 10-1090
UNITED STATES,
Appellee,
v.
CÉSAR HERNÁNDEZ-DE LA ROSA,
a/k/a César Hernández-La Rosa,
a/k/a Benino Mariano-Santana,
Defendant, Appellant,
No. 10-1134
UNITED STATES,
Appellee,
v.
JACOBO PEGUERO-CARELA, a/k/a Berzano Mercedes,
Defendant, Appellant,
No. 10-1440
UNITED STATES,
Appellee,
v.
SATURNINO TATIS-NÚÑEZ,
a/k/a Sotunino Tati, a/k/a Sotunino Núñez,
Defendant, Appellant.
___________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen C. Cerezo, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Thompson, Circuit Judges.
José R. Olmo Rodríguez for appellant Carlos Espinal-Almeida.
Mariángela Tirado-Vales on brief for appellant César
Hernández-De la Rosa.
Ignacio Fernández de Lahongrais on brief for appellant Jacobo
Peguero-Carela.
Jay Markell for appellant Saturnino Tatis-Núñez.
Carlos R. Cardona-Torres, Assistant United States Attorney,
with whom Rosa Emilia Rodríguez-Vélez, United States Attorney,
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, and Luke Cass, Assistant United States
Attorney, were on brief, for appellee.
November 14, 2012
THOMPSON, Circuit Judge. An undercover United States
Customs Task Force operation involving efforts on land, at sea, and
in the air, ended with the arrests of the defendants, Saturnino
Tatis-Núñez ("Tatis"), César Hernández-De la Rosa ("Hernández"),
Carlos Espinal-Almeida ("Espinal"), and Jacobo Peguero-Carela
("Peguero"). Each was indicted on, and ultimately convicted of,
one count of conspiracy to possess with intent to distribute, and
one count of conspiracy to import, 418 kilograms of cocaine. They
all appeal, raising a myriad of challenges that span jury voir dire
to sentencing. After carefully considering each claimed error, we
affirm.
I. BACKGROUND
A. The Undercover Operation
Sergeant Richard Avilés ("Avilés"), a twenty-six-year
veteran of the Puerto Rico Police Department and eight-year member
of the U.S. Customs and Border Protection ("Customs") Task Force,
received information that certain individuals were looking to
recruit boat captains for the purpose of transferring drug loads
via water from the Dominican Republic to Puerto Rico. Avilés was
assigned to go undercover as a boat captain, "Tony," in order to
infiltrate the drug trade.
As part of the undercover operation an informant working
with law enforcement took Avilés to meet Orlando Carrero-Hernández
("Carrero") on January 10, 2008 to discuss the prospect of Avilés's
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working for Carrero and picking up a drug load.1 This meeting,
which took place in Puerto Rico, was photographed and recorded. At
the meeting, Avilés signed on to pick up 600 kilograms (or kilos)
of cocaine from another boat in the middle of the ocean. In a
subsequent phone call with Carrero the amount was reduced to 300
kilos.
B. The Drug Exchange
After some hits and misses, the drug exchange finally
took place on January 25, 2008. On that day, Avilés met with
Carrero and Joaquín Lassalle-Velázquez ("Lassalle").2 Carrero gave
Avilés $450 for fuel, a piece of paper with the coordinates of
where the two boats would meet at sea, and the password to signal
to the other boat crew carrying the drugs.
After the meeting, Avilés returned to his office and made
a photocopy of the coordinates and also met another officer who was
to accompany him on the undercover ("UC") boat. Together they
headed to the UC boat where they met up with two other officers who
would be posing as the crew. Avilés briefed the trio and the two
officers who were going to pilot the boat plugged the coordinates
Avilés had received from Carrero into the UC boat's global
1
Carrero was the fifth defendant before the district court.
He pled guilty on day two of trial.
2
Lassalle was the sixth defendant before the district court.
He pled guilty on the morning trial was set to start.
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positioning system ("GPS") device. The UC boat set off to sea to
meet the mothership.3
Avilés and his crew reached their destination around 8:00
p.m. Encountering turbulent waters, they circled around the area
for approximately one hour. Then Avilés "noticed a yola4 in the
sea" and heard voices. Avilés yelled out in the darkness, "hey,
man -- hey, man. You, Domi." A voice replied, "what's going on,
Bori?" Avilés shouted back, "I'm coming, coming from Chino," and
then the password, "Chino sends me." "Immediately, there was a
whole bunch of . . . noise" and the yola "slowly got closer" to
the UC boat.
The seas were rough -- so rough that the yola hit the UC
boat twice. Avilés and his crew took a moment to put "fenders" up
around the UC boat to avoid damaging it. Then he asked of the
other boat, "what's going on? What does he have? What's there?" A
voice replied, "nine bags." One of Avilés's crew members then
turned on a light and Avilés looked directly at the mothership.
While the light was on, Avilés saw one individual (later identified
as Hernández), whom he referred to as "the captain of the vessel,"
3
"Mothership" is a law enforcement term used to refer to the
target of an investigation. In this case, a boat that was
suspected of carrying contraband.
4
A yola is a small fishing boat. For purposes of this
opinion, reference to the "yola," "mothership," and "michera" will
be used interchangeably.
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maneuvering two motors at the same time, a feat Avilés found
abnormal and "impressive."
After the light was quelled, the two boats started moving
in toward one another to enable the crews to make the drug
exchange. By 9:15 p.m. the two boats were floating in tandem.
Using only their hands and a pole, the two boats managed to stay
close enough to keep the drugs from falling into the water.
According to Avilés, the crew of the mothership would put the drugs
on the edge of their boat and then Avilés would grab the package
and put it on the UC boat's floor. At one point during the
exchange, a crew member from the mothership accidentally threw one
of the kilos on top of Avilés's hand. Avilés shouted out, "shit,
Domi. You broke my hand. You broke my hand." Immediately a light
in the UC boat was turned on and Avilés was able to see the crew
member (later identified as Espinal), who stood directly in front
of him.
A heated argument then arose because the mothership crew
complained that the light had been left on too long. After the
exchange of words, the remaining sacks of drugs were transferred to
the UC boat and sometime before 9:25 p.m. the two boats parted
ways. Avilés and the UC boat headed for Aguadilla, Puerto Rico to
rendevous on a beach with Lassalle and Carrero, where hidden
Immigration and Customs Enforcement ("ICE") agents and Puerto Rico
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Police officers lay in wait. The UC boat stopped along the way to
swap out the kilos of cocaine for fake kilos.5
C. Air Patrol
Meanwhile Victor Cancel ("Cancel"), a Customs aviation
enforcement officer, was also assigned to assist in the undercover
operation. Using aircraft equipped with special sensors, Cancel
routinely patrols the coastal waters of Puerto Rico and the Virgin
Islands in order to detect and prevent illegal immigrant and drug
trafficking. On this particular mission, Cancel was part of a four
person aircraft crew and, more specifically, was the camera
operator. The aircraft crew was given instructions "to fly to the
area and locate and track the mothership," "observe the sea
transfer," and "follow the mothership until [it was] intercepted by
5
The plan was for Avilés to arrive on the beach and start
unloading the sacks of fake drugs. Once he had handed off the
first sack to Carrero and Lassalle, he was going to give a
predetermined signal at which time a light would be turned on and
the officers would move in and make the arrests. The plan never
came to fruition though because the officers ended up moving in
before Avilés got there at which time a shootout took place between
the individuals waiting for the drugs (it is unclear exactly who,
though at least Carrero and Lassalle were there) and the officers.
The sequence of events at this point is not clear and the briefs
and the evidence offered at trial do not shed much light. But
based on Carrero and Lassalle's sentencing hearing transcript it
seems that the pair fled from the beach, one or both of them in
Lassalle's pick-up truck, from which one officer claimed shots were
fired. They were each arrested separately a few days later.
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the U.S. Coast Guard."6 In other words, Cancel and the crew were
told to stay with the mothership "at all times."
The aircraft took off around 7:45 p.m. heading toward the
coordinates where the UC boat was scheduled to be at 9:00 p.m. A
boat was identified on the aircraft's radar. It was at the
coordinates Cancel had been given and at the time "was just sitting
there, was not moving, [and] was waiting," and so Cancel "knew it
was the UC boat." The aircraft crew then scanned the area for the
mothership. Through the use of radar, color lenses, and
observation out of the aircraft's windows, they detected a few
boats in the area. Cancel and the crew focused in on one small
boat because it was headed "directly towards where the UC boat
was."
The aircraft's camera was trained on the boat (which was
already being tracked by radar) and Cancel received his first image
of the vessel. The aircraft moved in closer (one mile above the
boat) to get a better look via a zoom lens camera. Using the
camera, Cancel and the crew were able to identify the vessel as a
6
The detection equipment used by the aircraft crew included
a camera that allowed for audio, video, and backup recording. It
was comprised of three different lenses: "a complete zoom-in lens,"
"an adjustable zooming in . . . lens," and "a forward-looking
infrared camera that . . . detects the contrast of the heat in the
background" and is "specifically used at nighttime." The section
of the camera that recorded video had two digital video recorders
("DVR") which held the video, and from which the videos could be
retrieved and transferred to a DVD disc. There was also a special
radar, similar to a satellite dish, "attached to the belly of the
aircraft."
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"michera," a small fishing boat that is built in the Dominican
Republic and in Cancel's experience, one commonly used by drug
smugglers to conceal their drug loads.
The aircraft then followed the michera, recording video
and taking still pictures of it as it neared the UC boat and
eventually came along side it. Cancel and the crew continued to
observe the michera, video recording as the actual drug exchange
took place. Cancel did not take still pictures of the exchange
because protocol dictates, he said, that when a UC boat is involved
the aircraft is supposed to "stay away" and "not interrupt the sea
transfer" -- this also ensures that Cancel can keep the boats on
camera and radar at the same time.
After the exchange was complete, the UC boat and michera
went their separate ways and Cancel and his crew (in accordance
with their instructions) stayed with the michera. They tracked it,
while giving information about its location to a waiting U.S. Coast
Guard cutter.7 Cancel and the crew continued to observe and take
pictures of the michera as it was intercepted by the cutter, and
boarded by Coast Guard officers. After observing the interdiction,
the aircraft flew off to support the second part of the mission --
filming the on the beach drug drop-off.
7
A cutter is a large Coast Guard boat.
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D. Sea Patrol and the Interdiction
Jaime Cabán Morales ("Cabán") was one of the Coast Guard
officers aboard the cutter. His job was to "move in and apprehend
the suspects" after the air crew gave word the drug exchange had
been completed. Once word came, Cabán and three other officers
deployed in a small inflatable boat to the mothership and arrived
sometime around 10:40 p.m. Identifying himself as a Coast Guard
officer, Cabán ordered all onboard "to keep their hands up where
[he could] see them." Cabán and his crew boarded the mothership
and found the four defendants.
After handcuffing the four, Cabán spoke with the
defendants who claimed to be out on a fishing trip. They said they
had headed out, and obtained a fishing permit, from a marina in the
Dominican Republic. None of the defendants had identification or
registration for the boat. Cabán asked about weapons on board and
he was told there was one, a 9 mm gun, which was located and
secured. Cabán and the officers then performed a sweep of the
boat, recovering ammunition, a GPS, and four cell phones. Cabán
found only minimal fishing equipment and no fish, though he did
find a fishing permit, which had been issued from the Dominican
Republic.
Cabán then gave the cutter the all clear and it came up
alongside the michera and the inflatable Coast Guard boat. Three
of the defendants, along with the items seized from the michera,
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were transferred to the cutter. Cabán and the three boarding
officers remained on the michera with one of the defendants (it is
unclear which, though we suspect it was Hernández because Cabán
refers to the defendant who remained behind as the "master"). Both
the cutter and the michera then headed to Mayagüez, Puerto Rico,
arriving the next morning (it is uncertain if they arrived at
exactly the same time). They moored alongside each other and the
defendant who had been traveling on the michera was reunited with
the other defendants aboard the cutter.
E. Land Patrol
Omar Villarubia Ruiz ("Villarubia"), a Puerto Rico police
officer assigned to the Customs Task Force, was involved in various
aspects of the operation on land. First, he was one of the
officers hiding by the beach in Aguadilla, waiting for Avilés to
hand the fake kilos off to Lassalle and Carrero. Villarubia and
another police officer, concealed in the bushes with a night-vision
video camera, recorded what happened on the beach that night.8
After filming the scene, Villarubia was tasked with going to
Mayagüez where, the following morning, he was waiting when the
Coast Guard officers arrived with the defendants. He photographed
the four defendants and helped transport them. At some point,
8
It is unclear what part of the night's events were recorded,
whether it was surveillance while the officers waited, the
shootout, Carrero and Lassalle's flight, or some combination of
these things.
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Villarubia also went to the police station where he field-tested,
organized, and packed the seized drugs.
ICE Special Agent Victor Manuel Ramos ("Ramos") also
participated in the operation. Ramos met with Coast Guard
personnel at the Mayagüez seaport to assist in securing the
evidence and transporting the four defendants.
F. The Trial
The defendants were each indicted on one count of
conspiracy to posses with intent to distribute a controlled
substance (21 U.S.C. § 841) and one count of conspiracy to import
a controlled substance (21 U.S.C. §§ 952, 960, and 963). The four
defendants were tried together, with trial starting on September
14, 2009. The defense theory, as evidenced by opening statements,
was that the defendants were wrongfully arrested fisherman out on
an innocent fishing trip. Defense counsel theorized that Cancel
and the air surveillance team momentarily lost sight of the actual
mothership after the drug exchange had occurred. They claimed the
air team then caught sight of the defendants' fishing boat and
wrongfully assumed it was the mothership.
The government painted a different picture during the
five day trial. It presented evidence that pointed to the
defendants' guilt. Those involved in the overall undercover and
interdiction operation were called as witnesses, including Avilés,
Cancel, and Cabán. To rebut the wrongfully-targeted-boat theory,
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Cancel testified that he and the aircraft crew never lost sight of
the michera because they tracked it the entire time with the
aircraft's camera. Still pictures taken by that camera were
introduced, showing the michera before and after the drug exchange,
and Cancel testified that these photographs all depicted the same
boat. The government also introduced the data extracted from the
michera's GPS (much more on this later) and video taken by Cancel
(more on this too). At the close of the government's case, all
defendants moved for a judgment of acquittal. The district court
denied the motions. The defendants then sought to call a maritime
expert witness, however, the court would not allow the testimony.
The defense had no other witnesses to call and no evidence to
present, and so each side gave its closing argument. After about
an hour and a half, the jury returned guilty verdicts for all four
defendants on both counts. These appeals followed.
II. DISCUSSION
The defendants each assert multiple claims of error.9 We
9
Espinal, in addition to advancing his own arguments, seeks
to join in the other co-defendants' arguments pursuant to Fed. R.
App. P. 28(i). He has failed to do so properly. This court has
stated that "[a]doption by reference cannot occur in a vacuum and
the arguments must actually be transferable from the proponent's
to the adopter's case." United States v. Brown, 669 F.3d 10, 16
n.5 (1st Cir. 2012). Further, "issues that are adverted to in a
perfunctory manner absent developed argumentation are waived." Id.In this case, Espinal's attempt to join in the other co-defendants'
arguments could not have been more perfunctory -- he merely stated
that he "joins in any and all other arguments raised by the other
criminal co-defendants . . . that . . . are applicable to his
case." Accordingly, Espinal's "attempted arguments by reference
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will address each argument in seriatim, providing additional facts
as needed.
A. Jury Voir Dire
1. Ex Parte Conversations
At trial the judge conducted portions of the jury voir
dire ex parte, and Peguero, Tatis, and Hernández claim this
practice impinged on an assortment of rights. What happened was
this. During jury voir dire, the district court asked the venire
if their impartiality would be affected because the case involved
narcotics. In response to one juror's reply that she "consider[s]
people who are involved [in] selling drugs [as] actual slave
masters," the court excused her and defense counsel requested a
sidebar. At sidebar, Carrero's counsel10 stated that he would
"prefer" if future "points of view" could be shared "at the bench."
Both Hernández's and Tatis's counsel expressed identical concerns
to the judge. Tatis's counsel added that she had "filed a motion
for proposed voir dire which included approaching the bench."
The judge then addressed the venire explaining to them
that the juror had been excused because "she expressed this firm
opinion," but did not know all the facts of the case. The judge
went on to say that as jurors, they needed to be "open minded and
are forfeited." Id.10
Carrero was still in the case at this point. He pled out
the following day.
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. . . get to know the facts first before [they] make a decision."
She added that if any member of the venire had "a particular
opinion as severe" as the excused juror, she would prefer that they
share their opinions up at the bench. Going forward, when a
sidebar discussion was requested by a potential juror or desired by
the court, the judge spoke privately with the juror at the bench,
but nonetheless on the record, while all the attorneys remained at
counsel table. The judge then reported what the juror said in open
court to the attorneys and in the defendants' presence. None of
the defendants objected to this practice.
On appeal Peguero and Tatis argue that the ex parte jury
voir dire process described above violated their Sixth Amendment
right to a public trial and to be present.11 Hernández does not
make a constitutional argument but rather claims the practice
violated Rule 43(a) of the Federal Rules of Criminal Procedure,
11
In support of their public trial argument, Peguero and Tatis
rely on Presley v. Georgia, 130 S. Ct. 721 (2010) (per curiam) and
Owens v. United States, 483 F.3d 48 (1st Cir. 2007). However, both
cases are factually inapposite as they involve total courtroom
closures in which the public was excluded from jury voir dire. See
Presley, 130 S. Ct. at 722; Owens, 483 F.3d at 54. Both also
involved preserved claims. In Presley, the defendant objected to
the closure at trial. See 130 S. Ct. at 722. In Owens, the
defendant did not object at trial, but did request an evidentiary
hearing on his public trial claim in a habeas petition and it was
the denial of this request that this court was reviewing. See 483
F.3d at 61.
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which requires that the defendant be present at every stage of the
trial.12
Because none of the defendants objected to the procedure
utilized by the court, our review is for plain error. See United
States v. Rivera-Rodríguez, 617 F.3d 581, 600-04 (1st Cir. 2010).
To establish plain error, a defendant must show that (1) an error
occurred, (2) the error was obvious, (3) the error affected
substantial rights, and (4) the error seriously impaired the
fairness, integrity, or public reputation of judicial proceedings.
See United States v. Delgado-Hernandez, 420 F.3d 16, 19-20 (1st
Cir. 2005).13
We have dealt with this type of jury voir dire situation
before in United States v. Rivera-Rodríguez. In that case, the
district court on its own initiative engaged in ex parte
communications with fifteen potential jurors during jury selection,
without objection from defense counsel. See Rivera-Rodríguez, 617
F.3d at 601-02. As is the case here, the defendants argued on
12
Hernández also makes a passing argument that the district
court further erred because some of the ex parte discussions were
in Spanish. While 48 U.S.C. § 864 requires that all proceedings in
the United States District Court for the District of Puerto Rico be
in English, Hernández provides no developed argument for his
position, and so we decline to fill in the blanks for him. See
Colón v. R.K. Grace & Co. 358 F.3d 1, 6 (1st Cir. 2003).
13
Because many of the issues that the defendants raise on
appeal are not preserved, we will be applying this standard
throughout but not necessarily reiterating all of the elements each
time.
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appeal that the practice violated their Sixth Amendment right to a
public trial and their right to be present under Rule 43(a). See
id. at 600. This court, which found the ex parte voir dire process
"troubling," assumed arguendo that the first two prongs of plain
error had been satisfied, namely that an obvious error had
occurred. Id. at 588, 600. This court went on to find that the
third prong, requiring a substantial affect on a defendant's
rights, had not been satisfied. See id. at 605. Only two of the
jurors who participated in the ex parte communications were
selected to serve on the jury and so we found no basis to conclude
that these two ex parte communications, or the resulting jury
composition, violated the defendants' rights or affected the
trial's outcome. See id. at 601, 604-05. As was the case in
Rivera-Rodríguez, the defendants cannot satisfy prong three.
Here only one juror who engaged in ex parte
communications with the court was ultimately selected for service.
She was a student who very briefly spoke with the judge at the
bench, but on the record, about her school schedule and whether it
would affect her ability to serve. The judge then immediately
notified counsel of the contents of the discussion and no one
claims the court incorrectly reported the juror's concern (or for
that matter the concerns expressed by any of the jurors the judge
spoke with at the bench). We find no likelihood that this ex parte
conversation about personal scheduling somehow tainted the jury
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composition or affected the defendants' statutory rights,
constitutional rights, or the trial's outcome. Because defendants
have failed to satisfy the third prong, we need not consider the
fourth; no plain error has been shown.14
2. Law Enforcement Bias Question
Hernández argues that the district court should have
asked the jury venire a specific question, to wit "would [you] give
added credence to testimony by agents or government employees," to
ensure that no one was biased in favor of law enforcement.
Hernández never asked the district court to make this particular
inquiry and so we review for plain error. See Rivera-Rodríguez,
617 F.3d at 600.
"The Supreme Court has held that a defendant's right to
an impartial jury can be satisfied without the court's inquiring
into every specific prejudice feared by the defendant." Therrien
v. Vose, 782 F.2d 1, 4 (1st Cir. 1986) (citing Ristaino v. Ross,
424 U.S. 589, 595 (1976)). Our review of the voir dire transcript
reveals that the court took sufficient measures to guard against
jury bias favoring law enforcement. See Therrien, 782 F.2d at 4.
First, the court asked if any of the potential jurors were familiar
14
As a brief aside, though the defendants do not prevail on
this issue, the ex parte jury voir dire practice that they have
called our attention to is not optimal. As we have said before,
"we think it unwise for district judges to engage in ex parte voir
dire beyond purely ministerial functions." United States v.
Candelaria-Silva, 166 F.3d 19, 31 (1st Cir. 1999). We reiterate
that message here.
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with or had "a close relationship with any . . . Federal
prosecutor." It further inquired whether any member of the venire
was a "Federal law enforcement officer or a Puerto Rico law
enforcement officer," and if they "had a close association with a
Federal law enforcement officer by friendship or otherwise . . .
[l]ike, for example, that you're a very close friend to an FBI
Agent, and the FBI Agent tells you about all the things they do and
how they do them." These inquires were adequate to weed out
potential jurors who might be partial to law enforcement. In fact,
three jurors were excused because they were law enforcement
officers or had ties to a law enforcement officer. There was no
error; we need go no further.
3. Excluded Spectator
Espinal claims the district court wrongly excluded a
spectator from the courtroom during jury voir dire in violation of
his Sixth Amendment right to a public trial. However, there is no
record support for this contention.15 Without such support, we are
unable to address Espinal's claim. The argument is waived. See
Conto v. Concord Hosp., Inc., 265 F.3d 79, 81-82 (1st Cir. 2001)
(finding a claim waived because the appellant did not comply with
15
Prior to oral argument, Espinal filed a motion with this
court seeking to submit a sworn statement from the allegedly
excluded spectator, Espinal's brother-in-law. The motion was
denied. Espinal then filed a motion to remand his case to the
district court for further proceedings on the exclusion issue.
This motion was also denied.
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the Federal Rules of Appellate Procedure's requirement that the
appellant rather than the court "ferret out and articulate the
record evidence considered material to each legal theory advanced
on appeal.")
B. In-Court Identifications
The district court erred, all of the defendants assert,
when it did not suppress identification evidence on due process
grounds. On a preserved claim, we review a district court's
decision to admit or suppress identification evidence de novo and
the underlying findings of fact for clear error. See United States
v. De León-Quiñones, 588 F.3d 748, 753 (1st Cir. 2009). However,
when a defendant fails to object to the admission of the
identification evidence below, we review only for plain error. See
id. Here, Espinal and Hernández objected at trial, and Tatis and
Peguero did not.
Identification evidence is for the jury in all but
extraordinary cases and typically a "court should suppress
identifications made before trial and in the courtroom on due
process grounds only if it is persuaded that there was a very
substantial likelihood of irreparable misidentification." United
States v. Rivera-Rivera, 555 F.3d 277, 282 (1st Cir. 2009)
(internal quotation marks and citation omitted). To determine
whether suppression is called for, we apply a two-step analysis.
We consider first whether the identification procedure that
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preceded the identification was unnecessarily suggestive. See id.
at 283. If it was, then we ask whether the identification itself
is reliable notwithstanding the suggestive procedure. See De León-
Quiñones, 588 F.3d at 753. If the identification is reliable, it
is admissible. See id.Reliability is the key; it is assessed by evaluating the
totality of the circumstances and the analysis is witness specific.
See id. at 753, 754. Some of the factors to be considered in
assessing reliability are: "'(1) the opportunity of the witness to
view the criminal at the time of the crime; (2) the witness' degree
of attention; (3) the accuracy of the witness' prior description of
the defendant; (4) the level of certainty demonstrated by the
witness at the confrontation; [and] (5) the length of time between
the crime and the confrontation.'" Id. at 753-54 (quoting United
States v. Henderson, 320 F.3d 92, 100 (1st Cir. 2003)). This two-
step inquiry into suggestiveness and reliability applies when a
defendant (as two of them here do) alleges that his in-court
identification was "tainted by an unnecessarily suggestive
confrontation that occurred outside the presence of the jury." Id.
at 754.
1. Espinal's Identification
At trial, Avilés identified Espinal as the individual on
the mothership who was directly in front of him when the light came
on a second time after a bag of drugs had been dropped on Avilés's
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hand. Espinal has two issues with this in-court identification.
First, he claims it was tainted because Avilés saw Espinal's
photograph after the drug exchange and before he testified at
trial. Specifically, three days after the undercover operation
concluded, Avilés, at the request of a colleague, downloaded
photographs of the four defendants from the colleague's camera to
a compact disc. Espinal labels Avilés's encounter with the
photographs, which he likens to a photo show-up, as unnecessarily
suggestive. Second, Espinal contends that based on the
circumstances surrounding his and Avilés's encounter, Avilés's
identification is unreliable. Espinal points out that the drug
exchange occurred at night, with virtually no lighting, on rough
seas, and in a tense situation. Espinal concludes that under these
conditions Avilés could not have possibly gotten a good enough look
at Espinal on which to base his later in-court identification. He
theorizes that Avilés's identification was based on what he saw in
the photographs, as opposed to what he saw that night at sea.
We start our inquiry by asking whether there was an
unnecessarily suggestive identification procedure that preceded the
identification.16 See De León-Quiñones, 588 F.3d at 753. Our
16
For some time this court has adhered to the approach that
all suggestive identification procedures, not just those
orchestrated at the hands of police, should be scrutinized. See
United States v. Bouthot, 878 F.2d 1506, 1516 (1st Cir. 1989).
However, following a disagreement among the circuits, the Supreme
Court recently took up this issue and said otherwise. See Perry v.
New Hampshire, 132 S.Ct. 716 (2012). Citing the aim of deterring
law enforcement from using improper line-ups and photo arrays, as
-22-
ability to answer this question is complicated by the fact that we
do not know much about the circumstances surrounding Avilés's
viewing of the photographs. On cross-examination Avilés testified
that he saw photographs of the defendants prior to trial because,
a few days after the undercover operation, he was asked by a
colleague to transfer photographs of the four defendants from that
colleague's camera to a CD. Defense counsel did not explore this
issue any farther, or elicit any additional information. For
example, we do not know what exactly the pictures depicted (e.g.,
were these pictures of Espinal and the others in handcuffs) or the
circumstances of the requested download (e.g., did the colleague
tell Avilés that these were the guys who were arrested).
well as the built-in safeguards that protect against juries placing
too much emphasis on eyewitness testimony of questionable
reliability, the Supreme Court held that due process "does not
require a preliminary judicial inquiry into the reliability of an
eyewitness identification when the identification was not procured
under unnecessarily suggestive circumstances arranged by law
enforcement." Id. at 730 (emphasis added). What this means in
this case is less than clear. On one side of the spectrum we have
incidents that are clearly orchestrated by police (a line-up
arranged to be intentionally suggestive) and those that are clearly
not (a testifying witness running into the defendant in the
courthouse hallway before trial). The photo downloading incident
seems to fall somewhere in between. It was arranged by law
enforcement in the sense that Avilés's colleague asked him to
download the pictures, but Avilés's viewing of the photos was
really a simple side effect of his performance of an administrative
task. Because it is a close call, and in the end we do not think
any due process rights were impinged, we will assume that the photo
downloading incident qualifies as being arranged by law enforcement
and we will go on to consider whether it was unnecessarily
suggestive.
-23-
That being said, it is likely that these were the
photographs Villarubia took of the defendants when they had just
arrived in Mayagüez. These photographs, according to Villarubia's
testimony, depicted each defendant against a solid colored wall,
photographed from the front and side. If in fact Avilés downloaded
some other photographs of the defendants, it seems a safe
assumption that because the photos came from a colleague's camera
and Avilés downloaded them at the colleague's request, that the
photos had something to do with the defendants' capture and/or
arrest and Avilés knew this. Because the record is insufficiently
developed on this issue and we are left to employ guesswork, we
simply assume in defendant's favor that some type of unnecessarily
suggestive procedure occurred and we proceed to the second step of
the analysis. See De León Quiñones, 588 F.3d at 754 (assuming that
a pre-identification encounter where a witness saw the defendant in
handcuffs and in the courtroom was impermissibly suggestive); but
see Rivera-Rivera, 555 F.3d at 283-84 (finding no impermissibly
suggestive episode when a witness, who identified the defendants as
the men who robbed him, confirmed for police the identity of the
defendants immediately after their arrest, and then saw the
defendants, in custody, three or four times after the robbery).
As we said, even when an unnecessarily suggestive
procedure preceded the identification, the identification is
nonetheless admissible if it is reliable. See De León-Quiñones,
-24-
588 F.3d at 753. And so we ask whether Avilés's identification of
Espinal was reliable. With the factors to be considered and the
totality of the circumstances in mind, we answer in the
affirmative. Avilés testified that during the drug transfer he
"took a look at the guys" and that the boats were so close they
collided twice. As the drugs were transferred, Avilés used a pole
to keep the two boats close so that they were touching. At the
point at which Avilés saw Espinal, a light was turned on and he was
able to see Espinal clearly. Avilés, who conceded he only saw two
of the four individuals on the boat, unequivocally (in fact, he
used the word "undoubtedly") identified Espinal as one of them.
The evidence makes clear that Avilés had a good opportunity to view
Espinal when the light was turned on, and Avilés had a strong
degree of certainty that it was Espinal he saw. The circumstances
render the identification reliable. See De León-Quiñones, 588 F.3d
at 754-55.
Because of this, suppression of Avilés's identification
was not required. As we pointed out, it will be the rare case
where identification evidence is not proper fodder for the jury.
See id. at 753. This is not that case.
2. Hernández's Identification
At trial, Avilés also identified Hernández. He testified
that Hernández was the captain of the mothership, the man who was
operating the two motors. Like Espinal, Hernández claims his in-
-25-
court identification was the product of an impermissibly suggestive
pre-trial identification procedure and was unreliable.
Hernández's argument that there was a suggestive pre-
trial procedure is a fleeting one that is not bolstered by any
developed argument, but we charitably assume that he is referring
to the same photo downloading incident as Espinal. For the reasons
set forth in the previous section, we again assume that some type
of unnecessarily suggestive identification procedure occurred.
As with Espinal though, Hernández's due process claim
still fails because Avilés's identification of Hernández was
reliable. Again, we conduct our analysis with the relevant factors
and totality of the circumstances in mind. Avilés testified that
he recalled a light being turned on and seeing the "captain" of the
mothership sitting toward the rear of the vessel maneuvering two
motors at the same time. Avilés specified that the captain was
stationed between the motors with a lever in each hand. He
described this sight as "not normal" and "impressive" and
identified Hernández as the captain with the impressive skills.
Again Avilés's in-court identification was punctuated with
certainty as he testified that Hernández was "undoubtedly" the
captain of the michera. This evidence leads us to conclude that
Avilés had a good opportunity to view Hernández when the light
shone on him and indeed Avilés recalled details about Hernández
maneuvering the two motors. This detailed recollection "reflects
-26-
attentiveness to his surroundings." See Rivera-Rivera, 555 F.3d at
284. Further, as he did with Espinal, Avilés expressed certitude
that it was Hernández on the boat. The identification was
reliable. Suppression was not required.17
3. Peguero's Identification
At trial, Villarubia identified Peguero as one of the
four arrested men he picked up at Mayagüez. Peguero summarily
claims that Villarubia's identification should have been suppressed
because it was suggestive and unreliable, and therefore violated
his due process rights. However, a close read of Peguero's actual
position reveals that he is not in fact arguing that the
identification was suggestive or unreliable. Rather, Peguero is
contending that because Villarubia's identification of him was
based on the pair's on-land encounter, it is not enough to connect
him to the on-the-sea drug exchange. Therefore, any due process
identification argument is waived for failure to develop it. See
Rodríguez v. Municipality of San Juan, 659 F.3d 168, 175 (1st Cir.
2011) (explaining that it "should go without saying that we deem
waived claims not made or claims adverted to in a cursory fashion,
unaccompanied by developed argument").
17
Tatis makes an identification argument as well, however
Tatis does not argue that any identification of him was
problematic. Rather he says that Avilés's identification of an
unspecified co-defendant (presumably Espinal or Hernández) was
unreliable. This argument, to say nothing of its lack of
specificity, gets Tatis nowhere. For the reasons just given,
Avilés's identification of both Espinal and Hernández was reliable.
-27-
To the extent Peguero is advocating for suppression based
on some type of sufficiency argument, a claim which we remind is
not preserved, he fares no better. It is within the jury's
province to decide whether, given the totality of the evidence
produced at trial, there was enough to establish that Peguero was
one of the men on the mothership. Suppression of Villarubia's
identification testimony, which was just one link in the chain of
evidence, clearly was not called for.
C. Prosecutorial Vouching
During opening statements, the prosecutor spoke about
what Avilés was going to testify to at trial. The prosecutor
stated:
Because unbeknownst to defendant Carrero-
Hernández and Lassalle-Velázquez, the person
that they hire to go there and receive the
narcotics was an undercover officer from the
Police of Puerto Rico who was working as a
task force officer from the Immigration and
Customs Enforcement Agency in Mayagüez. He
was posing in his undercover capacity as a
boat captain. He represented to be someone
that was in the business of going out there to
get narcotics and introduce it into Puerto
Rico. That person is sitting here in court
today, is Sergeant Richard Avilés, who is
going to testify as to the events that
happened in this investigation pretty soon.
. . .
You also are going to hear details about what
finally happened the day in which Sergeant
Avilés went out there to meet the mothership,
get the narcotics, and come back to Puerto
Rico . . . The last thing that Sergeant Avilés
is going to testify is to what happened on the
-28-
25th. The day he went out, and in fact, was
able to come back with the narcotics.
(Emphasis added).
As referenced by the prosecutor, Avilés was sitting in the
courtroom during opening statements.
On appeal, Tatis and Hernández both claim that the
prosecutor improperly vouched for Avilés. Tatis, for his part,
argues that the prosecutor suggested Avilés was more likely to be
credible because he was an agent of the government. Hernández
claims that Avilés's mere presence in court constituted improper
vouching. Neither defendant objected to the prosecutor's comment
or Avilés's presence and so we review only for plain error. See
United States v. Cruz, 156 F.3d 22, 30 (1st Cir. 1998).
"'Improper vouching occurs when the government place[s]
the prestige of the United States behind a witness by making
personal assurances about the credibility of a witness . . . or
implies that the jury should credit the government's evidence
simply because the government can be trusted.'" United States v.
Gentles, 619 F.3d 75, 83 (1st Cir. 2010) (quoting United States v.
Robinson, 473 F.3d 387, 396 (1st Cir. 2007)). If the court
determines that improper vouching occurred, we must decide whether
the prosecutorial misconduct "so poisoned the well" as to merit a
new trial. Id. at 81.
Here the prosecutor did not improperly vouch -- he simply
gave the jurors a preview of the evidence that the government
-29-
intended to present at trial including a preview of Avilés's
testimony, which is consistent with the purpose of opening
statements. See United States v. Hershenow, 680 F.2d 847, 857-58
(1st Cir. 1982)(explaining that the "purpose of an opening
statement 'is to state what evidence will be presented, to make it
easier for the jurors to understand what is to follow, and to
relate parts of the evidence and testimony to the whole'" (quoting
United States v. Dinitz, 424 U.S. 600, 612 (1976) (Burger, C.J.,
concurring))). While the prosecutor did mention Avilés's presence
in the courtroom to the jury, he took absolutely no action to imply
or suggest that they should credit or elevate Avilés's testimony
just because he was a government agent. See Robinson, 473 F.3d at
396 (finding no improper vouching because "the government neither
made statements about the witnesses' credibility nor implied that
they could be trusted based on their affiliation with the United
States"); see also United States v. Pérez-Ruiz, 353 F.3d 1, 10 (1st
Cir. 2003) (finding no improper vouching because the prosecutor
"neither expressed her personal opinion regarding the veracity of
any witness nor implied that [the witness] should be trusted
because of some connection to the government"). On this record we
find no improper vouching. Because of this we need not embark on
a well-poisoning inquiry.
-30-
D. Trial Judge's Comments
1. Regarding the Evidence
At trial, the items seized from the michera were
introduced into evidence. At a bench conference, the attorneys for
Tatis and Peguero challenged the chain of custody of this evidence.
In response, the district court judge spontaneously stated: "I have
no doubt in my mind that this is the gun, the bullets, and the GPS.
And for that reason, I admitted it into evidence. The evidence is
overwhelming to that respect, okay?" Tatis's counsel responded,
"Judge, you speak so loud that the jurors . . . the jurors heard
you." The judge stated, "I'm sorry. I'm trying not to . . . Ok.
Very well." The jury was not polled to determine whether any jury
member actually heard the comment. No curative instruction was
requested and none was given by the court.
On appeal, Hernández, Tatis, and Espinal all take issue
with this comment. They each make various assertions about why the
comment was improper, e.g., the judge usurped the fact finding
function of the jury; the judge favored the government's theory of
the case; and the comment prejudiced the defendants, poisoned the
jury, and impinged on the defendants' right to a fair and impartial
trial. These arguments can best be characterized as allegations of
a due process violation based on judicial bias.
When faced with a judicial bias claim, we ask whether the
comment was improper and, if so, whether the complaining party can
-31-
show serious prejudice. See United States v. Angulo-Hernandez, 565
F.3d 2, 10 (1st Cir. 2009); see also Logue v. Dore, 103 F.3d 1040,
1045 (1st Cir. 1997) ("An inquiry into the judge's conduct of the
trial necessarily turns on the question of whether the complaining
party can show some serious prejudice."). When we review for
judicial bias, "we consider [] isolated incidents in light of the
entire transcript so as to guard against magnification on appeal of
instances which were of little importance in their setting."
United States v. Ofray-Campos, 534 F.3d 1, 33 (1st Cir. 2008)
(internal quotation marks and citation omitted). Clearly a trial
judge should be fair and impartial in her comments during a jury
trial because a fair trial in a fair tribunal is a basic
requirement of due process. See United States v. de la Cruz-
Paulino, 61 F.3d 986, 997 (1st Cir. 1995). "However, a finding of
partiality should be reached only from an abiding impression left
from a reading of the entire record." Id. (internal quotation
marks and citation omitted).
We disagree with the defendants that the judge's comment
was improper. The judge was simply explaining, in response to
defense counsel's challenge to the evidence's chain of custody, why
she admitted the items into evidence and why she was satisfied
there was no chain of custody issue. The judge's comment was made
to the attorneys at the bench; it was not intended for the jury.
It is pure speculation that any jury member heard it since the jury
-32-
was never polled by the judge sua sponte, or at the request of any
defendant. We see nothing wrong with the comment.
Even assuming that the comment was audible to the jury
and this rendered it improper, the defendants cannot show
prejudice. This was a lone, isolated comment about the items
seized from the mothership. It took place on day four of a five
day trial. The judge instructed the jury, both at the beginning
and end of the trial, that the case needed to be decided solely on
the testimony and exhibits, and that comments by the judge should
not be taken by the jury to indicate one way or another what the
verdict should be.18 A curative instruction addressing this
particular incident (and again none was requested) very well could
have drawn the jury's attention to something they had actually paid
no mind to. Moreover the evidence did in fact support a finding
that those were in fact the items seized from the mothership.
Viewing this one comment in this manner, we see no serious
prejudice.
18
Specifically, at the beginning of the trial, the judge told
the jury that they were "going to be the judges of the facts," that
"nothing that [the court] may say or . . . do should be taken by
[the jury] as indicating what the verdict should be," and that
"most importantly, [they] ha[d] to keep an open mind until all the
evidence [wa]s in." At the end of the trial, the judge instructed
the jury to "decide the case solely upon the evidence presented,"
not to "read into" anything the court may have said, to disregard
"anything that [the jury] may see or hear" that did not come from
the "witness stand and from the exhibits marked in evidence," and
not to "draw any inference against" the attorneys because of any
admonishments that the court may have given.
-33-
2. Regarding the Witness
Tatis alone takes issue with additional comments made by
the trial judge. These comments occurred during Cancel's testimony
when the prosecutor asked Cancel to plot some coordinates on a map.
Peguero's counsel objected, stating that the government had not
established that Cancel was qualified to plot the coordinates. The
judge responded: "He's a licensed pilot. A licensed pilot can do
that in two seconds time, so go ahead." Cancel then asked: "Can I
say something?" The prosecutor responded: "Sure." Cancel stated:
"I'm also a vessel commander." Tatis's counsel interjected
complaining that there was no question pending and Cancel was
talking up his qualifications. The judge responded: "I'm satisfied
that this individual who is here before us, who is a pilot,
Customs' pilot, can actually do a plot on that chart. It's as
simple as that."
To this court, Tatis claims that the judge improperly
commented favorably on the qualifications of a government witness
and then allowed that witness to bolster his own testimony. Again
we take this to be a judicial bias allegation, and so ask the
relevant two questions: were the comments improper and was there
serious prejudice. See Angulo-Hernandez, 565 F.3d at 10.
While it is debatable whether the judge's remark that
Cancel could plot coordinates "in two seconds time" was an
inappropriate commentary not supported by the evidence or just a
-34-
permissible and harmless metaphor, we think the judge's comments
overall were relatively benign given that the jury had already
heard testimony that Cancel was a pilot. As we have often said, a
"criminal defendant is entitled to a fair trial, not necessarily a
perfect one." United States v. Santiago, 83 F.3d 20, 25 (1st Cir.
1996). Also we do not agree that the judge improperly allowed
Cancel to bolster his testimony. It was the prosecutor who invited
Cancel to speak without a question pending, not the judge. And we
do not think there was any need for curative measures on the
judge's part once Cancel's statement about being a vessel commander
was made. Cancel made a statement about what he does for a living,
which was relevant to his qualifications to plot coordinates.
Striking the statement or admonishing Cancel was not required. We
conclude the judge did not act improperly. Nor, for the reasons
set forth in the previous section (i.e., the isolated nature of the
comments and the cautionary instructions given by the court), can
Tatis demonstrate serious prejudice.
E. Authentication of GPS Evidence
The GPS device that was seized from the mothership was
admitted into evidence after being identified by Cabán, the Coast
Guard officer who had arrested the defendants on the mothership,
and Ramos, the ICE officer who had taken custody of the GPS on
land. José Durand ("Durand"), a Customs forensic scientist who is
"in charge of working all evidence that arrives at the lab related
-35-
to portable media," was then called to testify. Durand had
retrieved the GPS's data and, employing Garmin (the manufacturer of
the GPS) and Google Earth software, had analyzed the GPS's data.
At trial, the GPS's data, in paper and compact disc form,
was admitted into evidence. Durand then loaded the data into the
Garmin software and onto a computerized map depicting Puerto Rico,
the Dominican Republic, and the waters in between. Durand then
pointed out and marked on the map the GPS's track points, which
revealed where the GPS (and thus the michera) was located at
various times during the night of the drug exchange. During this
testimony the government showed the jury previously admitted
photographs of the michera, which were taken from the air by
Cancel. The photographs -- which indicated the coordinates of the
photographed area and the time the photograph was taken -- showed
that the photographed boat and the GPS were at similar locations at
similar times.19
Durand then loaded the GPS's data into the Google Earth
software, which resulted in a red line that depicted the michera's
course during the night in question. He then plotted on the map
the coordinates of the boat Cancel was following and marked these
with a white arrow. Again the GPS's coordinates and the
19
For instance, the data revealed that the GPS was at the
coordinates 18:45:19 north, 67:58:03 west at 8:00 p.m. One of the
photographs taken by Cancel showed the michera at 18:44:26 north,
67:56:51 west at 8:07 p.m. At 9:24 p.m., the GPS was at 18:39:52
north, 67:49:09 west. At 9:25 p.m., the photographed boat was at
18:40:30 north, 67:48:39 west.
-36-
coordinates of the photographed boat matched up. Hard copy
versions of the marked-up Google Earth maps were admitted into
evidence.
On appeal, Espinal argues that (1) the GPS device and (2)
the GPS evidence (i.e., the GPS data and the software produced maps
with the michera's trajectory) were not properly authenticated and
therefore should not have been admitted by the district court. We
take each contention in turn.
1. GPS Device
With regard to the device itself, Espinal claims that
there was nothing to distinguish the GPS that was introduced at
trial from any other Garmin GPS on the market, and the GPS's chain
of custody was suspect. Espinal did not object to the GPS's
admission at trial and so we review for plain error. See United
States v. Shoup, 476 F.3d 38, 42 (1st Cir. 2007).
Our inquiry is guided by Federal Rule of Evidence 901,
which states that in order to "satisfy the requirement of
authenticating or identifying an item of evidence, the proponent
must produce evidence sufficient to support a finding that the item
is what the proponent claims it is." Fed. R. Evid. 901(a). This
does not mean that the proponent must rule out all possibilities
inconsistent with authenticity, rather "the standard for
authentication, and hence for admissibility, is one of reasonable
-37-
likelihood." United States v. Savarese, 686 F.3d 1, 11 (1st Cir.
2012).
Evidence is properly admitted if it is "readily
identifiable by a unique feature or other identifying mark."
United States v. Luna, 649 F.3d 91, 103 (1st Cir. 2011). If that
is not the case, or if the evidence is susceptible to alteration,
"a testimonial tracing of the chain of custody" is needed. Id.The time for authenticating evidence is before it is admitted;
however, if evidence is admitted prematurely, a new trial is not
warranted when later testimony cures the error. See id. at 103-04.
We turn to the record evidence.
Prior to the GPS device being admitted into evidence, the
following testimony was elicited. Cabán testified that he and his
crew seized a GPS from the mothership the night of the
interdiction. He then directed Officer Aarón Ríos, a member of his
crew, to transfer the GPS from the mothership to the Coast Guard
cutter. The boats then headed to Mayagüez -- Cabán and his crew in
the mothership and other Coast Guard personnel in the cutter with
the GPS and other seized items. When presented with the GPS that
the government sought to introduce into evidence, Cabán confirmed
that it was the GPS he had seized that night, stating he recognized
the GPS based on its "gray front plate" and brand, Garmin.
Ramos also offered testimony about the GPS. Ramos
testified that he met up with the Coast Guard officers in Mayagüez
-38-
and took custody of the GPS. Ramos prepared a Customs Form 6051
("Form 6051"), which is a custody receipt used for seized property
and evidence. He indicated the GPS's serial number on the form.
Another agent then signed for the evidence. The government
presented Ramos with Form 6051 at trial and he reviewed it. Ramos
was then shown the GPS and asked whether it was the same one he had
received from Coast Guard officers that night. He said yes and
that he knew this because the serial number on the GPS corresponded
with the serial number on the Form 6051. He then read the serial
number into the record.
Based on this evidence, we find that the GPS was properly
authenticated. Said another way, there is a reasonable likelihood
that the GPS was what the government purported it to be. Cabán,
the first to come into contact with the GPS, identified it based on
its appearance and brand. Ramos identified the GPS by its serial
number, which he had recorded when he received the GPS. The
testimony of Cabán and Ramos established how the GPS got from the
mothership to Ramos. The district court did not commit any error,
let alone an obvious one, in admitting the GPS.
2. GPS Data and Analysis
As we said, the remainder of Espinal's authentication
challenge is aimed at the data generated by the GPS (the hard copy
report and CD) and the software produced analysis of this data.
His basic contention is that the government did not establish the
-39-
accuracy or reliability of the processes employed by the GPS itself
or the Garmin and Google Earth software. He also claims that due
to the specialized and technical nature of the GPS evidence, expert
testimony (as opposed to Durand's lay testimony) was needed to
authenticate the evidence. Espinal says that absent such a
foundation, the GPS evidence should have been excluded. Espinal
did not preserve his objection below and so we review for plain
error.20 See Shoup, 476 F.3d at 42.
Federal Rule of Evidence 901(b)(9), which Espinal relies
on, is the provision "typically . . . employed to authenticate data
generated by a mechanism." 31 Wright & Gold, Federal Practice and
Procedure § 7114 (2012). It provides an illustrative
authentication technique, which is that the proponent may offer
evidence "describing a process or system and showing that it
produces an accurate result." Fed. R. Evid. 901(b)(9).
Considering this issue, we have explained that "evidence derived
20
It is clear that Espinal did not object to the admission of
the GPS data -- his counsel stated that he did not have an issue
with the "information inside" the GPS. Espinal's counsel did
however object to the analysis that the software performed of the
data, i.e. drawing the michera's trajectory. Counsel vaguely
asserted that the software program would effectively be acting as
an expert, but did not actually articulate a legal basis for the
objection as required by Federal Rule of Evidence 103 (stating that
to preserve a claim of error on a decision to admit evidence a
party must have "state[d] the specific ground, unless it was
apparent from the context"). Because Espinal failed to state a
specific ground for his objection, and we cannot glean from the
context of his objection that the basis was lack of authentication,
his trial objection failed to adequately preserve his claim on
appeal. See, e.g., United States v. Vargas, 471 F.3d 255, 264 (1st
Cir. 2006).
-40-
from the operation of a machine or instrument normally depends for
its validity on the premise that the device was in proper working
order." United States v. Doyon, 194 F.3d 207, 212 (1st Cir. 1999).
A court may however take judicial notice of the foundational facts
if the evidence resulted from "a process or system that is
generally known and accepted as accurate." 31 Wright & Gold,
Federal Practice and Procedure § 7114 (2012).
Here the trial judge did not take judicial notice of any
foundational facts but it is clear, based on comments made by the
judge, that she viewed GPS technology as commonplace (i.e., "Do you
know how many thousands of GPS are in the market today?"; "Every
single luxury car has one."; "I have one in my pocket right
now.").21 And the judge distinctly told counsel that she did not
think expert testimony was needed with regard to reading and
plotting coordinates from the GPS (i.e., "You don't have to be a
rocket scientist to read a GPS."; "My nine year old can do that.";
"You don't have to be an expert to plot on a nautical map.") While
GPS technology is prevalent in our society, we are not convinced
that the ability to read and plot coordinates from a GPS is as
banal as the district court made it out to be, and we think a
better foundation could have been laid for the GPS data and
21
These comments, as well as the next trio of remarks, were
made by the trial judge at a bench conference. The subject of the
conference was defense counsels' complaint that the government had
identified Durand as an expert (though ultimately did not call him
as one) but never produced an expert report. More on this dispute
later.
-41-
software generated maps. That being said, the district court's
decision to admit the evidence, absent more foundational evidence
and an expert witness, does not constitute an obvious error. Again
we take a look at the evidence.
Prior to the admission of the data, Durand set forth his
qualifications. He testified that he has been a forensic scientist
with Customs for eight and a half years and has been in charge of
"working all the evidence that arrives at the lab related to
portable media," including GPS, for a year and a half. Durand had
been specially trained with respect to GPS devices and had analyzed
ten to twelve GPS devices during his time with Customs.
Durand then testified about the process employed by the
GPS device itself. He explained that a GPS "contains data
concerning the location of the GPS," and that this location is
determined by the GPS hooking up with a satellite, with twenty-
seven such satellites currently revolving around the world. He
testified that GPS devices typically capture latitude, longitude,
days, hours, height, and altitude. Durand explained that he had
analyzed the GPS seized from the michera and based on pictures he
had taken and the existence of corresponding serial numbers he
confirmed that the GPS introduced at trial was the GPS he analyzed.
When presented with the hard copy report of the GPS's data, Durand
explained it was a report of "the data I collected from the GPS."
-42-
The CD, he noted, contained "the GPS digital data" plus "the hard
copy" report in digital form.
At this point in Durand's testimony, the GPS data was
admitted into evidence. Thereafter he got into more specifics,
explaining that a GPS produces way points (user stored
information), routes (the coming together of way points), and
tracks (a series of non-user created data that is the result of the
GPS's connection to a satellite, which shows where the GPS is
located). Durand added that elapsed time, the distance traveled,
the area covered, and average speed is also recorded on the GPS.
With regard to the process employed by the Garmin
software, the following evidence came in. Durand testified that he
had Garmin software that could analyze the GPS data contained on
the disc. At that point, the Garmin software generated map was
published to the jury. Durand then explained that when he selected
a particular activity log, which itself contained multiple track
points from the GPS, a yellow dot was generated on the computerized
map. Durand then walked the jury through the GPS's data, charting
the michera's path on the map. At one point during this exercise,
Durand was asked about a sixteen-minute gap in the GPS's
transmission and he explained that GPS devices can lose
communication with satellites for various reasons (e.g., because
they are shut off or because of atmospheric conditions).
-43-
As for the Google Earth software, Durand confirmed that
this software could not only show the data from the GPS but also
plot additional coordinates. Durand indicated that he could (and
he did) call up the GPS's data with the software. He testified
that one could plot specific coordinates, including pre-programmed
ones, with the software, which Durand did as well. He further
explained that the software produced a red line that indicated the
data from the GPS and the additional coordinates (the photograph
coordinates) were indicated with a white arrow. Durand went
through and plugged in these additional coordinates for the jury.
The marked-up maps generated by Google Earth were introduced into
evidence. Durand was then asked whether GPS devices have a margin
of error and he explained that commercial GPS devices have an
intentional margin of error from five to fifteen meters so that
they will not be as accurate as those possessed by the government
for national security reasons.22
The record reveals that Durand offered a good amount of
testimony about the processes employed by the GPS, the Garmin
software, and the Google Earth software. He was not specifically
asked, and did not precisely testify, whether the GPS and the
22
As the preceding narrative shows some of the authenticating
testimony came in before the actual physical exhibits were
introduced and some came in after. In instances where evidence is
admitted prematurely but is authenticated with later testimony,
there is no reversible error. See Luna, 649 F.3d at 103-04. We
are not saying that this is what happened here, but for this reason
we are not going to differentiate between evidence that came in
before and after.
-44-
software were in good working order or whether he was confident
they produced accurate results.23 Nonetheless it is reasonable to
infer that Durand would have said that the GPS and software were
working fine and turning out accurate results. He showed no
hesitation, and no concerns as to accuracy or reliability, when
offering the GPS's data or when plotting it with the software.
Furthermore, he spoke to the reliability of GPS technology in
general -- that GPS devices can lose communication with satellites
and that commercial GPS devices have an intentional margin of
error. Also the fact that the GPS data and the software plotted
courses were consistent with the location of the boat photographed
by Cancel underscored the processes' accuracy. We are satisfied
that the GPS data and software generated evidence were adequately,
if not extensively, authenticated.
As for Espinal's claim that proper authentication
required expert testimony, we do not see things the same way.
There are indeed situations where this court has said that expert
testimony is a must. See, e.g., Hochen v. Bobst Group, Inc., 290
F.3d 446, 451 (1st Cir. 2002) (finding that expert testimony was
needed when the nature of a defect, and its causal connection to a
printing press explosion, was complicated). However, this is not
one of them. The issues surrounding the processes employed by the
23
It would have been better practice for the prosecutor to lay
such a foundation, but its absence does not mean that the evidence
should have been excluded.
-45-
GPS and software, and their accuracy, were not so scientifically or
technologically grounded that expert testimony was required to
authenticate the evidence, and thus the testimony of Durand,
someone knowledgeable, trained, and experienced in analyzing GPS
devices, was sufficient to authenticate the GPS data and software
generated evidence. See, e.g., United States v. Thompson, 393
F.App'x. 852, 858-59 (3d Cir. 2010) (finding that a lay witness's
testimony concerning the operation of a GPS device, including
authentication of the GPS's data, was properly allowed by the trial
court).
Given Durand's testimony about the processes employed by
both the GPS and the software, his lack of reservation as to the
data, his confident use of the software, the fact that a serial
number comparison confirmed that the GPS Durand analyzed was the
same one confiscated by Ramos, and the fact that the coordinates
from the GPS and Cancel's photographs were similar, we find that
the reasonable likelihood standard for authentication of the data
and software generated maps was satisfied. See Asociación de
Periodistas de Puerto Rico v. Mueller, 680 F.3d 70, 79 (1st Cir.
2012) ("so long as the evidence is sufficient to allow a reasonable
person to believe the evidence is what it purports to be, it is
left to the fact finder to determine what weight it deserves")
(internal quotation marks and citation omitted). The trial judge
did not commit an obvious error by admitting the evidence.
-46-
F. Rule 16 Expert Disclosure
Prior to trial Durand was identified by the government as
an expert witness. Along with his curriculum vitae, a summary of
Durand's anticipated testimony was provided, though nothing
detailing what opinions he might offer. During Durand's testimony,
defense counsel requested a sidebar. Various objections were
raised, the pertinent one being advanced by Tatis's counsel who
objected because the government had not provided an expert report.
The prosecutor referred counsel to the summary of Durand's
anticipated testimony that had been provided. The court said the
summary was sufficient; the disclosure did not need to be in report
form. The prosecutor added that he had only identified Durand as
an expert out of "an abundance of caution" but that he would not be
testifying as such. The trial judge agreed with this approach and
Durand was never qualified as an expert or presented to the jury as
an expert.
On appeal Peguero and Hernández (in verbatim arguments)
contend24 that the district court abused its discretion by allowing
Durand, whom they characterize as an expert witness, to testify
without the government having provided a written summary of his
opinions in accordance with Federal Rule of Criminal Procedure
24
Tatis and Espinal allude to Durand not providing an expert
report in their briefs, but offer no precise argument.
-47-
16(a)(1)(G).25 The government counters that Durand did not testify
as an expert and so there is no Rule 16 issue.
Whether Peguero and Hernández preserved this claim on
appeal is up for debate. It was Tatis's counsel that brought the
Rule 16 issue to the court's attention but even that objection
(that the disclosure was not in report form) and the one before us
(that the disclosure did not include Durand's opinions) are not
really the same. During the sidebar colloquy Hernández's attorney
did try to argue something about Durand not being qualified as an
expert but he was cut off by Tatis's attorney. Peguero's attorney
said nothing. Because there was a lot of back and forth and
interrupting, it is hard to tell who was arguing what. Therefore,
we will treat the objection as preserved making abuse of discretion
the standard to meet. See United States v. Hilario-Hilario, 529
F.3d 65, 71-72 (1st Cir. 2008). Plus in the end it does not
matter; defendants cannot succeed even under this more friendly
standard.
"There is no bright-line rule to separate lay opinion and
expert witness testimony" and decisions considering this issue are
often in tension. Id. at 72. The problem we typically see is that
a witness "may be qualified to provide both lay and expert
25
The rule requires the government "give to the defendant a
written summary" of any expert testimony that "the government
intends to use." Fed. R. Crim. P. 16(a)(1)(G). That summary "must
describe the witnesses's opinions, the bases and reasons for those
opinions, and the witness's qualifications." Id.-48-
testimony in a single case." Id. (internal quotation marks and
citation omitted). It is arguable that portions of Durand's
testimony, such as his explaining how GPS technology works and his
plotting of the GPS data, reflected a "specialized knowledge and .
. . heightened sophistication normally associated with expert
testimony." Id. But we sidestep this thorny issue because even
supposing that Durand's testimony straddled or crossed the line
into expert testimony, defendants cannot prevail.
To obtain a reversal based on a Rule 16 claim, a
defendant has to show prejudice. See id.; see also United States
v. Rosario-Peralta, 199 F.3d 552, 559 (1st Cir. 1999). Neither
Peguero nor Hernández have even attempted to make this critical
showing. And we do not think they could have. The government
provided a summary of Durand's expected testimony, which mirrored
his eventual testimony. Namely that Durand would (as the
disclosure read) "testify as to the route, tracks, way-points and
coordinates which the vessel carrying defendants . . . was at
different hours during the night of January 25, 2008 and the time
surrounding the drug smuggling venture." The government did not,
in accordance with Rule 16, state what opinions Durand was expected
to offer at trial but this is not particularly concerning given
that Durand did not ultimately offer opinion testimony.26 Rather
26
The only opinion-like testimony was mentioned earlier in
this decision. Durand was asked why there was a sixteen-minute gap
in the GPS's transmission. He could not say for sure but explained
that these gaps happen for various reasons when the GPS loses
-49-
he used the GPS data to track the michera's path, just like the
disclosure said. Further, defendants were given the opportunity to
consult with an expert to discuss this GPS data prior to trial
(more to follow on this).
In light of the above, there was no prejudice to Peguero
or Hernández. They had sufficient information before them to
prepare for Durand's testimony and to cross-examine him. The Rule
16 claim falls flat. The court did not abuse its discretion in
allowing Durand to testify without requiring more of a disclosure
from the government.
G. Request for a Continuance
Durand was the government's final witness and he
testified on day four of trial, a Friday. At the conclusion of his
testimony, around 5:30 p.m., a bench conference was held at which
Espinal's attorney requested a continuance so that defense counsel
"could have a couple of hours" to discuss Durand's testimony with
an expert. The trial judge responded: "No. The motion is denied,
and you're going to do the cross right now. I have another trial
on Monday, and we haven't finished this one yet." No one objected
and defense counsel went ahead with their cross of Durand.
Hernández's attorney asked one question and Espinal's attorney
asked a few. Counsel for Tatis and Peguero did not ask any.
communication with the satellites. Assuming this was an opinion,
this one statement is not enough to tip the prejudice scales.
-50-
On appeal, Espinal and Tatis argue that the district
court erred when it denied the continuance request.27 They say the
denial hindered their ability to mount a defense and properly
cross-examine Durand, implicating their right to confront witnesses
and to meaningful assistance of counsel.
We review a district court's decision to deny a
continuance for an abuse of discretion. See United States v.
Correa-Alicea, 585 F.3d 484, 491 (1st Cir. 2009). Relevant factors
meriting consideration are the reason for the request, the amount
of time needed, the complexity of the case, the extent of
inconvenience to others if the request is granted, and the
likelihood of injustice or prejudice resulting from the denial.
See United States v. Williams, 630 F.3d 44, 48 (1st Cir. 2010). To
establish abuse the aggrieved party must show "that the court
exhibited an unreasonable and arbitrary insistence upon
expeditiousness in the face of a justifiable request for delay."
Id. (internal quotation marks and citation omitted). It is
27
In a related argument, Peguero claims that the district
court also wrongfully denied the defendants' request, which came
the following Monday, to have a maritime expert testify for the
defense. We need not get into the particulars of the request or
the court's denial of it. It suffices to note that although
Peguero recites the relevant facts, the sum total of his argument
is that the court committed an abuse of discretion by not allowing
the defendants to present an expert witness. No analysis or legal
citations undergird this assertion. We decline to address such an
underdeveloped argument. See Colón, 358 F.3d at 5-6 (explaining
that "it is not this court's role to assemble a coherent argument
for one side merely because evidentiary pieces are mentioned
somewhere among the factual recitations and the topic sentence of
the argument is supplied").
-51-
essential that prejudice from the ruling be identified. See id.Defendants have not made this showing.
The request here was for consultation with an expert to
discuss Durand's testimony pertaining to the GPS reading and
mapping. The subject matter, though detailed and technical, was
not overly complex. As for the amount of time the defendants
needed; they did not specify. But given that the request came at
the end of the day on a Friday, we do not think it would have
caused a great inconvenience for the judge to have granted the
continuance and for Durand's cross-examination to have gone forward
on Monday, particularly since it was clear the trial would continue
into the next week. That being said, district courts "enjoy broad
discretion in managing their dockets," and the judge indicated that
she had another trial starting up. Delgado v. Pawtucket Police
Dep't., 668 F.3d 42, 50 (1st Cir. 2012).
While a defendant's right to present a defense cannot be
sacrificed to achieve expeditious docket management, we do not
think that is what happened here. The defendants have not
established that the judge's denial was unreasonable and arbitrary
and significantly, the critical prejudice showing is missing. At
a status conference five days prior to the start of trial, the
defendants requested funds so that they could consult with an
expert, Captain José Rivera, with whom they wanted to go over the
GPS evidence. The judge approved a consultation for up to five
-52-
hours. At this time, the defendants had already received the GPS
evidence from the government. They also had a summary of Durand's
expected testimony, which as we said in the previous discussion,
matched up with the testimony he gave. Because of this Espinal and
Tatis had adequate time before trial to consult with an expert, and
they had sufficient information to make that consultation
meaningful. The trial judge is not to be faulted for not allowing
them to take a second crack at it. The court did not commit an
abuse of discretion in denying the continuance request.
H. Voir Dire of Cabán
During Cabán's testimony the 9 mm gun, ammunition clip,
and GPS were admitted into evidence. Peguero's attorney requested
that defense counsel be allowed to cross-examine and voir dire
Cabán regarding the evidence. The judge said yes to cross-
examination but no to voir dire, stating that cross-examination was
sufficient as the issue was one of weight as opposed to
admissibility.
To this court, Hernández argues that the court's denial
of voir dire violated his right to a just and fair trial and to
present a defense. He does not flesh this argument out, offering
no explanation as to how the denial negatively affected him or why
the cross-examination allowed by the court was not adequate. As we
have said, a "litigant has an obligation to spell out its arguments
squarely and distinctly or else forever hold its peace." United
-53-
States v. Zannino 895 F.2d 1, 17 (1st Cir. 1990) (internal
quotation marks and citation omitted). That is all we need to say
on this issue.
I. Brady Violation
As alluded to in our narrative of the goings-on at trial,
a video taken by Cancel with the plane's camera was introduced into
evidence. Cancel had downloaded the video from the plane's digital
video recorder ("DVR"), which is a hard drive-like device that had
stored the video. He then transferred the video to a DVD disc.
The DVD video was played for the jury and introduced into evidence.
The video started at 9:47 p.m., approximately twenty-
seven minutes after the drug exchange had been completed. The
video showed the michera traveling through the water, it being
intercepted by the Coast Guard, and the defendants' arrests. It
did not show the beginning of the mission, namely the michera's
approach to the UC boat, the two boats floating in tandem, and the
actual unloading of the drugs. Cancel, during his testimony,
explained to the jury that this was because when he attempted to
download the beginning portion of the video, a DVR failure occurred
and that portion of the video was lost.28
Espinal sought to examine the DVR prior to trial, but his
request was denied by the court. On appeal, Tatis argues that the
28
As we mentioned before the plane actually had two DVRs,
however, one of them was not functioning properly from the
beginning of the mission and so the crew was not using that DVR.
-54-
government's failure to turn over the DVR constituted a Brady
violation. See Brady v. Maryland, 373 U.S. 83 (1963). He contends
that he needed to inspect the DVR because the lost video (assuming
he could extract it) could provide evidence of other boats in the
area of the UC boat. Such video, he says, would be helpful support
for the defendants' mistaken-boat theory.
We start by outlining the particulars of the request for
the DVR. In its pretrial scheduling order, issued March 12, 2008,
the court (among other things) ordered the government to turn over
all Rule 16 discovery, including all information and material that
might be favorable to the defendants within the scope of Brady.
The government turned over some initial discovery. Not satisfied
with what he received, Espinal (who is not alleging a Brady
violation on appeal) filed two motions requesting that the
government produce the videos taken by the aircraft. The
government filed a response saying that due to a technical
malfunction they were unable to recover any video from the
aircraft. It provided a letter from Avalex Technology, the DVR's
manufacturer whom the government had engaged to repair the DVR and
recover the video, which indicated that Avalex's efforts at
retrieval had been unsuccessful. Espinal responded by filing a
motion in which he made various discovery demands, including (most
pertinent to our inquiry) asking the court to order the government
to allow him to inspect the DVR so that an expert could be engaged
-55-
to try and retrieve the lost video. Espinal did not specifically
invoke Brady in his request to inspect the DVR though he did in
another portion of the motion when he requested audio recordings of
the conversations between the aircraft crew.
In the meantime, the government received word that
Customs did in fact have a video recording depicting part of the
night's events on DVD (the DVD that was ultimately introduced at
trial). The DVD was turned over to the defendants. Because of
this, the district court denied Espinal's motions seeking discovery
of the videos as moot. The court never ruled on the motion in
which Espinal requested to inspect the DVR and so a month later
Espinal filed another motion reiterating his request. The court
responded this time, denying the motion in an electronic order.
The court did not elaborate on its reasoning other than to say that
based on the parties's submissions it was denying the motion.
Espinal requested reconsideration and was denied.
Nearly a year later, and a month before trial, Tatis
(who, to refresh the reader's recollection, had not requested to
inspect the DVR but who is pursuing the Brady issue on appeal)
filed a motion in limine. Tatis sought to prevent the government
from offering the DVD video taken by Cancel into evidence arguing
that it would be prejudicial and confusing to the jury because it
was not the complete recording of the evening's events. Tatis also
referenced the court's denial of Espinal's request to inspect the
-56-
DVR, noting that the defendants had no way of verifying the
technical malfunction. The court denied the motion in limine.
The essential elements of a Brady claim are: the evidence
at issue must be favorable to the accused either because it is
exculpatory or impeaching; the evidence must have been willfully or
inadvertently suppressed by the government; and prejudice must have
ensued. See United States v. Avilés-Colón, 536 F.3d 1, 19 (1st
Cir. 2008). "The government is primarily responsible for deciding
what evidence it must disclose to the defendant under Brady."
United States v. Prochilo, 629 F.3d 264, 268 (1st Cir. 2011). In
a situation where a defendant has made only a general request for
Brady material, the government's decision about that disclosure is
ordinarily final (unless later events reveal that exculpatory
evidence was not disclosed). See id.; see also Pennsylvania v.
Ritchie, 480 U.S. 39, 59 (1987). It is at this point where Tatis's
Brady claim first flounders.
There is no indication in the record that Tatis ever
requested to inspect the DVR, let alone alleged that it might
contain exculpatory material that he was entitled to under Brady.
His co-defendant Espinal did file a motion asking the court to
order inspection of the DVR (Tatis mentions this in his motion in
limine), but Espinal's motion did not contain an allegation that
the DVR evidence might exonerate. That leaves us with the court's
scheduling order, which contains a general command for the
-57-
government to turn over all potentially exculpatory material under
Brady. With only this general dictate, we think the government's
decision as to what was and was not potentially exculpatory, and
its decision not to turn over the DVR, should stand. See Prochilo,
629 F.3d at 268.
But we will assume otherwise for the sake of argument and
turn our attention to the Brady elements. Our inquiry starts and
ends with the first. To establish a Brady violation a defendant
must provide the court with at least "some indication" that the
materials he seeks to access contain material and potentially
exculpatory evidence. United States v. DeCologero, 530 F.3d 36,
64-65 (1st Cir. 2008); see also United States v. Brandon, 17 F.3d
409, 456 (1st Cir. 1994). Tatis has not done this.
Assuming Tatis would have been able to do what the DVR's
own manufacturer could not do and extract the lost video, there is
absolutely no indication that the video would contain potentially
helpful evidence of other boats in the area. In fact all
indications are to the contrary. Cancel testified no less than six
times that there were only five boats in the area. He said there
was the UC boat and the michera, which are both small boats, and
three large boats, which were ruled out because they were large.
This testimony was not equivocal -- Cancel stated that "within 32
miles range there was no other boat other than the three [large]
boats I talked to you about earlier, and the UC boat and the
-58-
michera." There was no evidence that contradicted this testimony.
Tatis's claim that there might have been more than these five boats
in the area is nothing short of pure speculation. His optimistic
expectation that the lost video might reveal this is also a shot in
the dark. Brady did not create a "general constitutional right to
discovery in a criminal case." Weatherford v. Busey, 429 U.S. 545,
559 (1977). We decline Tatis's invitation to hold otherwise.
Because Tatis has provided us with no indication that the DVR
evidence is material and potentially exculpatory, there is no Brady
violation.
J. Sentencing
Both Espinal and Hernández claim that their sentences are
unreasonable and that the district court made various errors in
connection with sentencing. "We typically examine sentencing
decisions for abuse of discretion, which is really a review for
reasonableness." United States v. Denson, 689 F.3d 21, 26 (1st
Cir. 2012). The two aspects of reasonableness are procedural and
substantive. See id. Both are implicated here as the defendants
make procedural-type claims, e.g., the court improperly calculated
the Sentencing Guidelines ("Guidelines") range and inadequately
explained the sentence, and substantive-type claims, e.g., the
sentence is unreasonably long. See Gall v. United States, 552 U.S.
38, 51 (2007). We start with Espinal's claims.
-59-
1. Espinal's Sentence
Espinal was sentenced to twenty-four years in prison --
the lowest possible sentence in his applicable Guidelines range.
He cries foul, arguing that the district court should have reduced
his base offense level because he was a minimal participant in the
crime; that the court's explanation for the sentence imposed was
inadequate; and the sentence was unreasonably harsh. We start with
his minimal participant argument.
Espinal says his base offense level should be adjusted
downward four points because he played a small role in the drug
venture. He characterizes himself as a seaman turned mere courier,
and the real masterminds of the crime as big time underworld
bosses. The burden is on Espinal to show that he was a minimal
participant. See United States v. Santos, 357 F.3d 136, 142 (1st
Cir. 2004). To qualify as such, a defendant must prove that he is
"substantially less culpable than his cohorts in the actual offense
and that he is substantially less culpable than the vast majority
of those taking part in similar crimes." Id. In short, Espinal
must be a plainly peripheral player. See id. He has not shown us
that this is the case.
Though Espinal may not have orchestrated the drug deal,
like his co-defendants who pled out, or driven the michera, like
Hernández, he has not established that he was any less culpable
than his fellow so-called couriers, Peguero and Tatis. In fact,
-60-
Espinal was the only one that Avilés could affirmatively identify
as passing him the kilos of cocaine. Further, even if Espinal was
just a mere courier, this does not automatically entitle him to
minimal role reduction. See id. at 143; see also United States v.
Paz Uribe, 891 F.2d 396, 399 (1st Cir. 1989). Not to mention the
fact that there was a very large amount of drugs involved here.29
This alone "militates against a finding that his role was minimal."
Santos, 357 F.3d at 143. As we have said, it is a "rare case in
which a defendant will warrant designation as a minimal
participant." Id. at 142. Espinal has not met his burden of
showing that this is one of those cases.
Espinal next says the court did not adequately explain
the rationale behind the sentence. Pursuant to 18 U.S.C. §
3553(c), the district court "shall state in open court the reasons
for its imposition of the particular sentence." Here the judge's
explanation was by no means lengthy but she did explain that the
sentence was based on the kind and amount of drugs involved, the
presence of the gun, and the fact that, in the judge's view, none
of the defendants played a minimal role due to the large amount of
drugs involved.30 The judge did not get into Espinal's pre-sentence
29
According to the testimony, the quantity was about 400
kilograms of cocaine, one of the largest amounts that one Puerto
Rico police officer had ever seen seized. The amount the
defendants were ultimately convicted of was 418 kilograms.
30
The judge expressed the same sentiment at Hernández's
sentencing -- "Counsel, when you embark with an adventure of this
nature with 418 kilos of cocaine, nobody plays a minor role in that
-61-
memorandum contention that his imprisonment would cause extreme
hardship to his sick mother that he cares for. Nonetheless we
think the court's explanation was sufficient. As we have said,
brevity and inattention are not the same things and this is
especially so when the imposed sentence falls within the Guidelines
range. See United States v. Dávila-González, 595 F.3d 42, 48 (1st
Cir. 2010); see also Rita v. United States, 551 U.S. 338, 356-57
(2007) (finding that "when a judge decides simply to apply the
Guidelines to a particular case, doing so will not necessarily
require lengthy explanation"). Here Espinal received the lowest
possible sentence in his Guidelines range. The court's explanation
was sufficient. See, e.g., Dávila-González, 595 F.3d at 48
("Although it is true that the district court did not explicitly
address each of the appellant's arguments for a below-the-range
sentence, the court was not required to offer that level of
elucidation.").
Finally Espinal argues that a twenty-four year sentence
was too harsh given that he was a first time offender with no drug-
use history and that he resides with, and provides for, his sick
mother, common-law wife, and son. He says the sentence violated
the parsimony principle -- "the statutory directive that sentences
should be no higher than necessary to achieve the statutory goals
of sentencing." United States v. Turbides-Leonardo, 468 F.3d 34,
boat. Nobody."
-62-
41 (1st Cir. 2006); see 18 U.S.C. § 3553(a). The substantive
reasonableness of a sentence "depends largely on whether the
sentence imposed represents a defensible result supported by a
plausible rationale." Denson, 689 F.3d at 27. The sentence here
is grounded in a plausible rationale. Espinal participated in a
conspiracy to import a very significant amount of drugs -- 418
kilos of cocaine -- into Puerto Rico. He was part of the team that
brought those drugs over, and was the individual, or at least one
of the individuals, who handed the drugs over to Avilés. Espinal's
sentence, which is at the absolute bottom on the Guidelines range,
is defensible. See Turbides-Leonardo, 468 F.3d at 41 (stating that
it "will be the rare case in which a within-the-range sentence can
be found to transgress the parsimony principle").
We find no abuse of discretion here. Espinal's sentence
was procedurally sound and substantively reasonable.
2. Hernández's Sentence
Hernández, who like Espinal received the lowest possible
sentence in his applicable Guidelines range, was sentenced to
thirty years in prison. He argues that his sentence was
unreasonable and the court relied on two impermissible factors when
it sentenced him: a crime Hernández committed when he was eighteen
and the general havoc and societal ills caused by drugs. He adds
that the court was reluctant to consider mitigating factors. We
take his claims in order.
-63-
Hernández, who was forty years old at the time of trial,
had three prior convictions, all of which were listed on his pre-
sentence report: alien smuggling at the age of eighteen; illegal
re-entry at the age of nineteen; and more alien smuggling at the
age of twenty-three. The probation officer had originally used all
three crimes to calculate Hernández's criminal history category;
however, the probation officer determined before sentencing that
the crimes committed when Hernández was eighteen and nineteen
should not be considered. The judge was advised of this, and at
Hernández's sentencing explicitly stated that these two crimes were
not being considered. Thus the record makes clear that the court
did not rely on the very thing that Hernández accuses it of
improperly relying on. No more need be said.
We can also make quick work of contention two. Hernández
says that the judge relied "entirely" on the "general havoc and
social problems caused by drugs" when deciding his sentence. This
is not an accurate characterization of what happened. In response
to defense counsel arguing that Hernández deserved lenient
treatment, the judge referenced the "major havoc and social
problems" that the distribution of 418 kilos of cocaine –- the
specific amount Hernández was convicted of transporting –- would
cause. The judge was not referring to some generalized impact of
drugs on society; she was referring to the specific impact of
Hernández's crime. It is also clear that Hernández's sentence was
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not based, as he alleges, "entirely" on this consideration. When
explaining the sentence the judge cited the amount of drugs, the
fact that a weapon was on board the boat, and the fact that
Hernández was the captain of the michera.
Hernández's hazy recollection of the record aside, there
is no merit to his argument. The impact of a defendant's crimes on
society is a proper consideration for a sentencing court. See,
e.g., United States v. Pulido, 566 F.3d 52, 64 (1st Cir. 2009)
(finding no error where the district court emphasized the danger
that defendant's crimes posed to society); United States v. Gilman,
478 F.3d 440, 447-48 (1st Cir. 2007) (affirming a sentence based in
part on the court's consideration of the harm caused to society by
defendant's conduct). It was not an abuse of discretion for the
court to rely on this factor.
Hernández's final argument fares no better. He faults
the court's supposed reluctance to consider unspecified mitigating
factors. We assume Hernández to be referring to the arguments he
made at sentencing; that he was a minor participant and had not
been convicted of a crime in seventeen years. The record reveals
that the court did in fact consider these factors and found them
outweighed by other considerations, most especially the very large
amount of drugs involved. The court's decision to weigh more
heavily the seriousness of the offense rather than any mitigating
factors was well within its discretion. See United States v.
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Zapata, 589 F.3d 475, 488 (1st Cir. 2009) (stating that the
"court's decision to emphasize the nature of the crime over the
mitigating factors was a choice of emphasis that is not a basis for
a founded claim of sentencing error") (internal quotation marks and
citation omitted).
Hernández avers that the end result of these supposed
errors was an unreasonable sentence. We disagree. As there was
with Espinal, there is a plausible rationale for the sentence
handed down. Hernández participated in a conspiracy to import a
very large amount of drugs. He was the captain of the boat that
brought those drugs over. His sentence, also at the absolute
bottom of the Guidelines range, is defensible.
Again, the district court did not abuse its discretion.
Hernández's sentence was procedurally and substantively reasonable.
K. Cumulative Error
Espinal argues that the cumulative effect of the
respective errors he alleged require reversal. Because we did not
find merit in any of his individual complaints, it of course
follows that there was no reverse-worthy cumulative error. See
United States v. Brown, 669 F.3d 10, 28 (1st Cir. 2012).
III. CONCLUSION
After thorough consideration, we find no merit to any of
the defendants' claims of error. The convictions and sentences of
all four defendants are affirmed.
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