United States v. Verestin-Cruz ( 2020 )

United States Court of Appeals
For the First Circuit
Nos. 16-2490, 20-1402
UNITED STATES OF AMERICA,
Appellee,
v.
CARLOS RAYMUNDÍ-HERNÁNDEZ,
Defendant, Appellant.
_____________________
Nos. 17-1081, 20-1405
UNITED STATES OF AMERICA,
Appellee,
v.
ROCKY MARTÍNEZ-NEGRÓN, a/k/a Rocky,
Defendant, Appellant.
____________________
Nos. 17-1092, 20-1438
UNITED STATES OF AMERICA,
Appellee,
v.
EDGAR J. COLLAZO-RIVERA,
Defendant, Appellant.
____________________
Nos. 17-1314, 18-1076, 18-1528, 20-1385
UNITED STATES OF AMERICA,
Appellee,
v.
JOVANNI VARESTÍN-CRUZ,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Thompson and Kayatta,
Circuit Judges.
Katherine C. Essington, for appellant Raymundí-Hernández.
Manuel E. Moraza-Ortiz, for appellant Martínez-Negrón.
José R. Olmo-Rodríguez, for appellant Collazo-Rivera.
Samantha K. Drake, Assistant Federal Public Defender, with
whom Eric Alexander Vos, Federal Public Defender, and Vivianne M.
Marrero, Assistant Federal Public Defender, Supervisor, Appeals
Section, were on brief, for appellant Varestín-Cruz.
Ross B. Goldman, Criminal Division, Appellate Section, U.S.
Department of Justice, with whom Brian A. Benczkowski, Assistant
Attorney General, Matthew S. Miner, Deputy Assistant Attorney
General, Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Section, were on brief, for appellee.
December 29, 2020

Judge Torruella heard oral argument in this matter and
participated in the semble, but he did not participate in the
issuance of the panel's opinion in this case. The remaining two
panelists therefore issued the opinion pursuant to 28 U.S.C.
§ 46(d).
PER CURIAM. Defendants-Appellants Carlos Raymundí-Hernández
("Raymundí"), Rocky Martínez-Negrón ("Martínez"), Edgar Collazo-Rivera
("Collazo"), and Jovanni Varestín-Cruz ("Varestín") were convicted
by a jury after an eleven-day trial for their roles in an expansive
drug-trafficking conspiracy. On appeal, they assert (sometimes
collectively, and sometimes individually) that they were deprived
of a fair trial for a multitude of reasons. Their primary unified
challenge is that they should be entitled to a new trial because,
at various instances throughout the trial, the district court judge
interjected during witness testimony in such a manner that signaled
an anti-defense bias to the jury and caused the defendants serious
prejudice. Martínez and Collazo also dispute the sufficiency of
the evidence presented to the jury to support their convictions.
And defendants continue a long-running argument about Brady
violations.
After careful review, we find the evidence sufficient to
support the convictions, but the trial unfair due to repeated,
one-sided intercessions by the trial judge. We therefore vacate
the convictions and remand for a new trial.
-3-
BACKGROUND
I. The Conspiracy and the Charges
This case stems from the government's efforts to
dismantle an extensive conspiracy to distribute cocaine and heroin
in Puerto Rico and other parts of the United States between 2005
and 2010. The targeted drug trafficking organization (the
"organization") was allegedly comprised of several subsets, each
with its own leader. José Figueroa-Agosto (a/k/a "Junior Cápsula")
and Elvin Torres-Estrada ("Torres-Estrada") were two of the
prominent kingpins, each with his own faction. Other high-ranking
actors included Junior Cápsula's brother, Jorge Luis
Figueroa-Agosto ("Figueroa-Agosto"), José Marrero-Martell
("Marrero-Martell"), Diego Pérez-Colón ("Pérez-Colón"), and Ismael
Luna-Archeval ("Luna-Archeval").
The organization enlisted more than two dozen
individuals into its enterprise. The activities of the
organization included transporting drugs and money between the
Dominican Republic and Puerto Rico (mostly by boat), storing the
drugs and money in Puerto Rico, distributing the drugs in Puerto
Rico, shipping the drugs to the continental United States,
instituting price controls on the sale of the drugs, laundering
the proceeds from drug sales, and providing armed security
throughout these operational phases.
-4-
In November 2010, the government indicted Junior
Cápsula, Marrero-Martell, Pérez-Colón, Figueroa-Agosto, and over
a dozen others on drug conspiracy charges in a separate criminal
case. See generally United States v. Figueroa-Agosto,
No. 10-cr-00435 (D.P.R. Nov. 15, 2010). The ensuing cooperation
of these four named men with law enforcement was instrumental to
the government's investigation and dismantling of the remaining
branches of the organization and the prosecution of Raymundí,
Varestín, Collazo, and Martínez in particular.
On February 9, 2011, a federal grand jury indicted four
more of the organization's leadership, including Torres-Estrada,
Samuel Negrón-Hernández ("Negrón-Hernández"), Ángel
Ayala-Vázquez, and Rafael Santiago-Martínez, on one count of
conspiracy to import cocaine and heroin from the Dominican
Republic, in violation of 21 U.S.C. §§ 952(a), 963. Subsequently,
on September 18, 2013, a federal grand jury indicted twenty-seven
other individuals alleged to have participated in the criminal
organization, including the defendants in this case, through a
superseding indictment that charged them with conspiracy to import
at least five kilograms of cocaine and one kilogram of heroin, in
violation of 21 U.S.C. §§ 952(a), 963 (Count 1), and conspiracy to
possess with intent to distribute the same controlled substances,
in violation of 21 U.S.C. § 846 (Count 2). The superseding
-5-
indictment also charged Collazo with conspiracy to commit both
money laundering and international money laundering, in violation
of 18 U.S.C. § 1956(a) & (h) (Counts 3 and 4), and included several
forfeiture allegations. The defendants in this appeal were the
only ones who entered pleas of not guilty and took their cases to
trial.
II. The Trial
The defendants stood trial for eleven days, from July 8
to July 22, 2016.
A. The Cooperating Witnesses
The lion's share of the incriminating evidence that the
government put to the jury came from three cooperating witnesses:
Marrero-Martell, Pérez-Colón, and Figueroa-Agosto. Some of their
testimony was corroborated by other witnesses, including law
enforcement officers. For the purpose of our review, we briefly
introduce these witnesses and the pertinent portions of their
testimony.
1. José Marrero-Martell
Marrero-Martell was one of the original members of the
drug trafficking organization and a high-ranking member of Junior
Cápsula's contingent (at times, his second-in-command).
Marrero-Martell's testimony implicated Collazo,
Raymundí, and Varestín. He testified that Collazo transported
-6-
drug money to the Dominican Republic on behalf of the organization
in his private vessels on at least two occasions in 2009, and that
Torres-Estrada had a Porsche, which, according to other testimony,
had been purchased for him by Collazo with laundered money.
Marrero-Martell also testified that Raymundí was actively involved
in collecting, unloading, storing, and distributing drugs for the
organization. He placed Raymundí at meetings at the home of one
of Torres-Estrada's men, which Varestín also attended on one
occasion. Marrero-Martell testified that both Varestín and
Raymundí provided security for Torres-Estrada and that he always
saw them carrying weapons. According to Marrero-Martell, Varestín
and Raymundí were remunerated for providing security, sometimes
with drugs.
The organization allegedly had on its payroll a police
officer in the Dominican Republic named Colonel Amado González
("Colonel González"). Marrero-Martell testified that in December
2009 he traveled to the Dominican Republic as part of a group
(which he claimed included Varestín) sent by Junior Cápsula and
Torres-Estrada to murder Colonel González to ensure that he could
not identify them if he cooperated with law enforcement.1
1 The Government explained that Dominican authorities
detained the group before they could effectuate their plan to kill
Colonel González. According to the Government, Colonel González
was ultimately killed "by the order of Junior [Cápsula]," albeit
-7-
The defense implemented several strategies to impeach
Marrero-Martell. They first developed the extent of his
cooperation with the government and the benefits he received in
return. To receive a tangible sentencing benefit, and after
signing a proffer letter, Marrero-Martell participated in over
fifty meetings with law enforcement personnel and he testified in
several trials and grand jury proceedings in drug trafficking
cases. Pursuant to his plea and cooperation agreements, in
exchange for his assistance, the government recommended a
significantly lower sentence (105 months' imprisonment) than
Marrero-Martell would have faced given the actual quantity of drugs
he was charged with trafficking (his guideline sentencing range
was 210 to 262 months' imprisonment). On August 29, 2014, he was
sentenced to 72 months' imprisonment.
Varestín also sought to impugn Marrero-Martell's
credibility by drawing out potential ulterior motives for the
testimony Marrero-Martell provided. One such theory was that the
drug trafficking organization was divided into competing factions,
namely between Junior Cápsula (with whom Marrero-Martell was
aligned) and Torres-Estrada (with whom Varestín and Raymundí were
aligned). Notably, Torres-Estrada had allegedly tried to kill
on a separate occasion and by a different group.
-8-
Marrero-Martell. Marrero-Martell testified that at various points
between his incarceration in 2010 and his release in February 2014,
he was jailed in the same facility and/or unit as Junior Cápsula
and Pérez-Colón. Marrero-Martell also testified that they
communicated by cell phone when jailed in separate units of the
same facility. This fit into the defense's larger narrative that
Marrero-Martell and the other cooperating witnesses had
coordinated their testimony to deliver a blow to Torres-Estrada's
faction, although Marrero-Martell denied ever being asked to lie
or offered money to testify against Torres-Estrada's organization.
2. Diego Pérez-Colón
Pérez-Colón participated in the organization's drug
trafficking activities and assumed a managerial role in the
transportation, distribution, and accounting side of its
operations from 2005 to 2010. According to his testimony, he was
part of Junior Cápsula's faction. Pérez-Colón's testimony
implicated all four defendants. He testified that he worked with
Varestín and knew him well. He also placed Varestín on the
December 2009 trip to kill Colonel González. Pérez-Colón described
Varestín and Raymundí as "trigger men," who would provide an armed
escort to Pérez-Colón when receiving and moving drugs. Pérez-
Colón testified that he had worked with Raymundí since early 2009
to receive and distribute drugs. According to his testimony,
-9-
Pérez-Colón would hold Junior Cápsula's drugs and Raymundí would
hold Torres-Estrada's drugs, as Raymundí was one of the
high-ranking members of Torres-Estrada's outfit. Pérez-Colón also
linked Raymundí to the weapons provided to "boat captains" for
transport to the Dominican Republic to be used in the plan "to
kill [Colonel] Amado González." Pérez-Colón testified that he
supplied Collazo with drug money for transportation to the
Dominican Republic at least three times. Finally, Pérez-Colón
stated that Martínez was an employee of Luna-Archeval, a major
drug distributor in Puerto Rico, and that Pérez-Colón exchanged
drugs and money with Martínez on more than seven occasions.
Pérez-Colón also testified about the names of
individuals in his drug ledger. Specifically, he testified that
one of the individuals listed in the ledger was named "Bocky," who
the ledger indicated had been supplied with five kilos of cocaine.
On cross-examination, Pérez-Colón confirmed that "Bocky" was a
"totally different person from [defendant] Rocky Martínez."
As with Marrero-Martell, the defense's trial strategy
revolved around impeaching Pérez-Colón's credibility. The defense
drew out information about the details of Pérez-Colón's
cooperation with the government. Like Marrero-Martell, Pérez-
Colón entered into plea and cooperation agreements with the
government in the hopes that it would lead to a "reduction of [his]
-10-
sentence." To that end, Pérez-Colón participated in many
interviews with law enforcement personnel and testified in several
grand jury proceedings and trials. Pérez-Colón stated that he
also discussed his decision to cooperate with Junior Cápsula,
Marrero-Martell, and Figueroa-Agosto (his co-defendants).
Ultimately, on January 22, 2016, Pérez-Colón was sentenced to
97 months' imprisonment, which was also the amount of time
recommended by the government (his lowest guidelines sentencing
range was 168 to 210 months' imprisonment).
In furtherance of this impeachment strategy, the
defendants drew out testimony that Pérez-Colón had indeed
communicated with Marrero-Martell and Junior Cápsula using illegal
cell phones while in jail to discuss the prospect of cooperating
with the government. Additionally, the jury heard testimony that
Pérez-Colón used weapons, bribed officials, and killed
people -- all crimes for which he was never charged. The defense
elicited testimony that Pérez-Colón belonged to Junior Cápsula's
outfit, and that Junior Cápsula was a father figure to Pérez-Colón
-- implying that, like Marrero-Martell, Pérez-Colón was
incentivized to lie and to testify against members of
Torres-Estrada's contingent. Moreover, Torres-Estrada's employees
had kidnapped Pérez-Colón after he was blamed for a lost quantity
of cocaine, which Pérez-Colón admitted caused him to fear for his
-11-
life. Martínez also cast doubt on Pérez-Colón's testimony by
noting that he did not remember the identities of the people who
lived at Martínez's house despite testifying that he conducted
several drug transactions there.
3. Jorge Luis Figueroa-Agosto
Figueroa-Agosto participated in the organization's
trafficking operations under the command of his brother, Junior
Cápsula, from sometime in 2005 until February 2008. During his
tenure, Figueroa-Agosto was in charge of holding and accounting
for the proceeds from drug sales and storing drugs in Puerto Rico,
as well as sending the money back to the Dominican Republic.
Figueroa-Agosto directly implicated Martínez. He testified that,
upon arrival in Puerto Rico, portions of cocaine shipments were
delivered to Martínez's boss, Luna-Archeval, and that Martínez
would pick up the cocaine and store it in his house.
Figueroa-Agosto explained that he quit the business when
he began fearing that other members of the organization, including
Torres-Estrada, were going to rob him or kill him. Like Marrero-
Martell and Pérez-Colón, Figueroa-Agosto entered into plea and
cooperation agreements with the government. Figueroa-Agosto
testified that he initially suggested the idea of cooperation to
his brother, which the defense latched onto on cross-examination
in furtherance of their theory that the cooperating witnesses'
-12-
testimony was not credible. Figueroa-Agosto expected a sentencing
reduction in exchange for his testimony in this case. Figueroa-
Agosto was ultimately sentenced in August 2016, about four years
after he first entered into the cooperation agreement and one month
after he testified at trial in this action. At sentencing, his
Guidelines range was 188 to 235 months' imprisonment and the
government recommended a sentence of 107 months' imprisonment.
The district court made a downward departure and sentenced
Figueroa-Agosto to 87 months' imprisonment.
B. The Key Defense Witnesses
The defense called several witnesses of its own, some of
whom we introduce briefly. To illustrate its theory that the
cooperating witnesses were incentivized to lie, Varestín called
Jayson Dávila-Reyes ("Dávila-Reyes"), who testified that Pérez-
Colón approached him in prison and offered him money in exchange
for information against Torres-Estrada or any members of his
organization. David Rivera-Rivera ("Rivera-Rivera") was another
key defense witness, who Varestín put on the stand to testify that,
among other things, the December 2009 trip to the Dominican
Republican was actually just a vacation, not a planned attempt to
murder Colonel González. The defense also sought to call two law
enforcement officers who interviewed the cooperating witnesses on
several occasions -- Homeland Security Investigation ("HSI")
-13-
Special Agent Carrasquillo ("Agent Carrasquillo") and FBI Special
Agent Mario Rentería ("Agent Rentería") -- to establish that the
witnesses had added new details to their stories and were therefore
unreliable. However, the district court only permitted Agent
Rentería to testify.
C. The Jury Verdict
On July 22, 2016, the jury found the defendants guilty
of various offenses. As to the charge of conspiracy to import
controlled substances in violation of 21 U.S.C. §§ 952, 963
(Count 1), the jury convicted Raymundí but acquitted the remaining
three defendants. As to the charge of conspiracy to possess with
intent to distribute controlled substances in violation of 21
U.S.C. § 846 (Count 2), the jury convicted all four defendants.
Additionally, the jury found Collazo guilty of conspiracy to commit
both money laundering and international money laundering in
violation of 18 U.S.C. § 1956 (Counts 3 and 4).
III. The Post-Trial Motions
Soon after the verdict, the defendants filed assorted
motions under Rules 29 and 33 of the Federal Rules of Criminal
Procedure, seeking judgments of acquittal or, in the alternative,
a new trial.2 In their Rule 29 motions, the defendants asserted
2
Collazo sought only a judgment of acquittal under Rule 29.
Martínez, Raymundí, and Varestín sought judgments of acquittal or,
-14-
that the evidence put to the jury was insufficient to sustain their
convictions. Their Rule 33 motions submitted that various errors
had occurred before and during trial, which required the district
court to grant a new trial in the interest of fairness. Many of
the grounds they offered for retrial were recycled from
contemporaneous objections made during trial. On May 23, 2017,
the district court entered an omnibus order denying the defendants'
motions across the board. The case then proceeded to sentencing.
IV. Sentencing and Appeals
Raymundí was sentenced to 180 months' imprisonment on
November 18, 2016. Martínez and Collazo were sentenced to
120 months' and 97 months' imprisonment, respectively, on
December 22, 2016. Varestín was sentenced to 235 months'
imprisonment on March 14, 2017. All four defendants timely
appealed.
DISCUSSION
On appeal, Martínez and Collazo once again assert that
the evidence put to the jury was insufficient to sustain their
convictions. Additionally, the defendants allege (sometimes
together, sometimes separately) a kaleidoscope of errors leading
up to and during their trial, including faulty voir dire, an
in the alternative, a new trial, under Rules 29 and 33.
-15-
improperly quashed witness subpoena, judicial misconduct,
prosecutorial misconduct, and the wrongful suppression of
impeachment evidence. 3 The defendants contend that they are
entitled to a new trial -- and, in Varestín's case, if not a new
trial, at least a new sentence. We first address the sufficiency
of the evidence challenges, followed by the defendants' arguments
3 A quick note on adoption of arguments. In his opening
brief, Collazo "adopt[s] by reference and join[s] in the arguments
made by [his] codefendant[s] . . . in their respective appeal
briefs which may also be relevant to [him], particularly about the
Brady and Giglio violations, jury selection error, exclusion of
the testimony of agent Carrasquillo, and the various requests for
mistrial." Martínez, for his part, filed a motion to join and
adopt all of Varestín's appellate arguments that may be applicable
to him. "[I]n a case involving more than one appellant or
appellee, including consolidated cases, any number of appellants
or appellees may join in a brief, and any party may adopt by
reference a part of another's brief." Fed. R. App. P. 28(i). Of
course, the caveat is that the adopted arguments must be "readily
transferrable from the proponent's case to the adopter's
case." United States v. David, 940 F.2d 722, 737 (1st Cir. 1991).
Given the nature of this case, in which the defendants stood trial
together for crimes relating to the same drug conspiracy, and where
the principal evidence against them derived from the testimony of
the same cooperating witnesses, their fair trial arguments are for
the most part readily transferable. See United States v. Ayala-
Vázquez, 751 F.3d 1, 19 (1st Cir. 2014) (finding adoption of a co-
defendant's judicial misconduct claims proper where both
defendants were tried for their involvement in the same drug
conspiracy).
-16-
about judicial interventions, and lastly their contentions about
Brady and Giglio errors.
I. Sufficiency of the Evidence
Our first step is to address whether the government
adduced evidence sufficient to sustain Martínez and Collazo's
convictions (they are the only two defendants who assert this
challenge on appeal). We proceed in this order because "a
successful sufficiency challenge" would both require us to vacate
their convictions and bar retrial for the same offenses under the
Double Jeopardy Clause of the Fifth Amendment (thus also rendering
moot their remaining claims of trial error). United States v.
Ramírez-Rivera, 800 F.3d 1, 16 (1st Cir. 2015), abrogated on other
grounds by United States v. Leoner-Aguirre, 939 F.3d 310, 317 (1st
Cir. 2019).
As to Martínez, the district court found that the
evidence supported the conclusion that Martínez was involved in
aspects of the drug inventory, including storage and distribution.
As to Collazo, the district court found that the evidence supported
the conclusion that he delivered millions of dollars in drug money
to the Dominican Republic using his boat, that he purchased a car
for a leader of the drug cartel using illicit funds, and that he
intended to join in the drug trafficking conspiracy.
-17-
We review de novo the denial of a Rule 29 motion for
judgment of acquittal based on insufficient evidence. See United
States v. Troy, 583 F.3d 20, 24 (1st Cir. 2009). In our review,
"[w]e consider all the direct and circumstantial evidence in the
light most flattering to the government, 'drawing all reasonable
inferences consistent with the verdict, and avoiding credibility
judgments, to determine whether a rational jury could have found
the defendants guilty beyond a reasonable doubt.'"
Ramírez-Rivera, 800 F.3d at 16 (quoting United States v.
Negrón-Sostre, 790 F.3d 295, 307 (1st Cir. 2015)). While a
sufficiency challenge is a "formidable" task for the movant and an
"uphill battle," United States v. Rivera-Rodríguez, 617 F.3d 581,
596 (1st Cir. 2010) (quoting United States v. Lipscomb, 539 F.3d
32, 40 (1st Cir. 2008)), it is in no way an "empty ritual," id.(quoting United States v. de la Cruz-Paulino, 61 F.3d 986, 999
n.11 (1st Cir. 1995)); see also United States v. Brandao, 539 F.3d
44, 50 (1st Cir. 2008) ("[W]e will reverse only if the verdict is
irrational.").
A. Martínez's Sufficiency Challenge
Martínez contends that his conviction for conspiracy to
possess with the intent to distribute controlled substances in
violation of 21 U.S.C. § 846 (Count 2) should be overturned because
the evidence was insufficient to establish that he knew the boxes
-18-
he handled contained drugs (as opposed to some other item or
contraband), and therefore he could not have knowingly or
voluntarily joined the drug distribution conspiracy.
Count 2 alleged the existence of a wholesale drug
distribution conspiracy, as part of which, the defendants "would
store and protect the narcotics and narcotics proceeds within
Puerto Rico," and that "some of the narcotics would be divided
among the coconspirators for further distribution." Thus, the
relevant question for Martínez's sufficiency challenge is "whether
a reasonable jury could conclude that the [g]overnment proved
beyond a reasonable doubt each element of the crime: (1) 'a
conspiracy existed,' (2) [the defendant] 'had knowledge of the
conspiracy' and (3) [he] 'knowingly and voluntarily participated
in the conspiracy.'" United States v. Burgos, 703 F.3d 1, 10 (1st
Cir. 2012) (quoting United States v. Dellosantos, 649 F.3d 109,
116 (1st Cir. 2011)). On appeal, Martínez only challenges the
second and third elements.
To satisfy the second element, the government must prove
"knowledge of the crime charged," id., either in the form of
"actual knowledge" or "willful blindness," id. at 11 (citation
omitted). It is insufficient to "[s]how[] that the defendant had
knowledge of generalized illegality," id. (citing United States v.
Pérez-Meléndez, 599 F.3d 31, 43 (1st Cir. 2010)), though the
-19-
government need only establish knowledge that "the conspiracy
involved a controlled substance" and not necessarily knowledge of
the "specific controlled substance being distributed," id.; cf.
McFadden v. United States, 576 U.S. 186, 188-89 (2015) (holding
that a conviction under 21 U.S.C. § 841(a)(1) requires knowledge
that the defendant is "dealing with 'a controlled substance'" as
opposed to "an illegal or regulated substance under some law" in
a case involving bath salts, a controlled substance analogue).
"[C]harges of conspiracy cannot be made out by piling inference
upon inference." Burgos, 703 F.3d at 11 (citing United States v.
DeLutis, 722 F.2d 902, 907 (1st Cir. 1983)).
To satisfy the third element, the government must prove
that "the defendant both intended to join the conspiracy
and intended to effectuate the objects of the conspiracy." Id.(quoting Dellosantos, 649 F.3d at 116). "An agreement to join a
conspiracy may be express or tacit," United States v. Santos-Soto,
799 F.3d 49, 57 (1st Cir. 2015) (quoting United States v.
Trinidad-Acosta, 773 F.3d 298, 311 (1st Cir. 2014)), and viable
evidence may include "inferences 'drawn from members' words and
actions and from the interdependence of activities and persons
involved,'" id. (quoting United States v. Acosta-Colón, 741 F.3d
179, 190 (1st Cir. 2013)). To be sure, a defendant may be deemed
part of a conspiracy even if he only participates in ancillary
-20-
functions, such as communications, accounting, or enforcement, as
opposed to more central functions like collecting, handling, or
selling drugs. See id. at 58.
The gist of Martínez's alleged involvement in the
organization is that he worked for Luna-Archeval, a drug
distributor who also happened to be in the car parts and mechanic
business. According to witness testimony, on behalf of Luna-
Archeval, Martínez accepted and stored boxes containing drugs at
the auto shop and his own home. Martínez, for his part, asserts
that there is insufficient evidence to show that he knew the boxes
he handled contained drugs. Specifically, he contends that absent
any showing that the boxes were opened in his presence or that any
of the witnesses told him that the boxes contained drugs, it was
reasonable for him to infer that those boxes contained auto parts
(perhaps even stolen auto parts or something else illegal), given
the nature of his employment for Luna-Archeval and the fact that
auto parts were regularly delivered in boxes to the auto shop. As
a result, Martínez maintains, there is insufficient evidence to
establish that he was part of the conspiracy.
We find these arguments unpersuasive. Witness
credibility aside, the government presented sufficient evidence at
trial that would allow a reasonable jury to conclude beyond a
reasonable doubt that Martínez knew that the boxes he handled
-21-
contained drugs (i.e., that he knew the conspiracy existed) and
that he knowingly and voluntarily participated in the conspiracy.
Pérez-Colón and an FBI agent testified that Martínez
worked for Luna-Archeval, who was "one of the biggest distributors"
in the drug trafficking conspiracy, and to whom Pérez-Colón
supplied drug shipments. Pérez-Colón explained that he delivered
boxes containing drugs to Martínez, who received them for Luna-
Archeval, in exchange for money. The organization's distributors
delivered "things" (i.e., drugs and/or money) to Luna-Archeval in
boxes because it made sense within the context of Luna-Archeval's
business, which received boxes of auto parts. Pérez-Colón also
testified that when he ran out of drugs to distribute, he sometimes
picked up a new supply of drugs from Martínez's house -- usually
cocaine but sometimes heroin. When asked how Martínez "knew that
he was dealing with drugs," Pérez-Colón explained, "[b]ecause when
I ran out of kilos, I would tell [Figueroa-Agosto], and [Figueroa-
Agosto] would call [Luna-Archeval], and then [Luna-Archeval] would
call me and tell me to go to his employee's house [i.e., Martínez's
house] to pick up the kilos." Pérez-Colón also testified that
when he went to Martínez's house, Martínez "would take the kilos
out and give them to me. They were cocaine kilos, and once or
[on] three occasions there were heroin kilos." Occasionally,
Pérez-Colón would give Martínez drug money that "was counted, all
-22-
organized, all nice, and it was all tallied up." All in all,
Pérez-Colón testified that he dealt with Martínez upward of seven
times and that on some of those occasions, they would exchange a
"full tally" of drugs in the range of hundreds of kilos.
All in all, if a rational jury believed this testimony,
it could easily find that Martínez knew that the boxes he received,
stored, and exchanged for money contained drugs. The jury could
also reasonably conclude based on this evidence that Martínez had
a stake in the conspiracy based on his relationship with
Luna-Archeval. See United States v. Azubike, 564 F.3d 59, 65 (1st
Cir. 2009) (Azubike II) ("[D]rug organizations do not usually take
unnecessary risks by trusting critical transactions to outsiders."
(quoting United States v. Azubike, 504 F.3d 30, 37 (1st Cir. 2007)
(Azubike I))). While the evidence may not suggest that Martínez
played a leading role in the conspiracy, collecting, storing, and
selling drugs are core functions of a drug distribution conspiracy.
See Santos-Soto, 799 F.3d at 58. Furthermore, there is sufficient
evidence for the jury to conclude beyond a reasonable doubt that
he knew his service advanced the principle aims of the conspiracy.
See id.
B. Collazo's Sufficiency Challenge
We now turn to Collazo's challenge that there was
insufficient evidence to sustain his convictions for conspiracy to
-23-
possess with intent to distribute controlled substances (Count 2),
conspiracy to commit concealment money laundering (Count 3), and
conspiracy to commit international money laundering (Count 4).
1. Drug Distribution Conspiracy Conviction
As to Count 2, Collazo stood accused of conspiring to
transport millions of dollars of drug money to and from the leaders
of the organization. He disputes the sufficiency of the evidence
undergirding his § 846 conviction on the grounds that it was based
entirely on Pérez-Colón and Marrero-Martell's testimony, which was
vague, contradictory, and uncorroborated. We disagree.
Marrero-Martell recalled three particular instances of
Collazo's involvement with the organization: first, in May 2009,
Collazo transported between $1.5 and $2.5 million from Puerto Rico
to the Dominican Republic in a forty-foot private fishing vessel
for which he was paid a commission; second, in either June or July
2009, Marrero-Martell saw Collazo and others at Torres-Estrada's
home in the Dominican Republic where they had dinner; and third,
in September 2009, Collazo transported upwards of $1 million to
the Dominican Republic shortly after an assassination attempt on
Junior Cápsula during which corrupt Dominican authorities stole
the kingpin's drug money. The money was in cash and transferred
in ziplock bags and plastic bins, which further suggests its
illicit nature. Marrero-Martell indicated that approximately
-24-
$900,000 of the money that Collazo delivered in September 2009 was
likely intended to pay Junior Cápsula's girlfriend's bond in the
Dominican Republic. According to Marrero-Martell, Collazo also
transported Negrón-Hernández back to Puerto Rico on the return
trip. Marrero-Martell testified that, as was custom, Collazo
received an up-front commission (typically eight or ten percent)
for this trip as well.
Pérez-Colón testified that he dealt with Collazo at
least three times. After the assassination attempt on Junior
Cápsula, Pérez-Colón stated that Marrero-Martell escorted him to
Collazo's place of business. Pérez-Colón delivered approximately
$3 million for Collazo to transport to Junior Cápsula in the
Dominican Republic "to solve a lot of things that were happening"
(including paying his girlfriend's bond) in the wake of the attempt
on Junior Cápsula's life, during which he lost "all of his" drug
money. Pérez-Colón stated that the money he delivered to Collazo
was "drug proceeds" and that he did not pay Collazo or know how
much Collazo would be paid for his services. Pérez-Colón also
testified that, on another occasion, he gave Collazo roughly
$2 million for delivery to Torres-Estrada in the Dominican
Republic. Pérez-Colón always showed Collazo the money before
transferring it to Collazo's possession. Pérez-Colón suspected
that the reason the organization conscripted Collazo was because
-25-
"he had a good vessel and . . . a good last name," and that it
would make a difference if the authorities stopped "Empresas
Collazo" (Collazo's enterprises) as opposed to "Diego Pérez-
Colón."
Count 2 alleged that it was "a manner and means of the
conspiracy that the defendants and their co-conspirators would
send bulk shipments of narcotics proceeds to the Dominican
Republic," and that they "conceal[ed] and hid[] . . . [the] acts
done in furtherance of the conspiracy." Based on the
aforementioned testimony, a rational jury could certainly infer
that Collazo knew the drug conspiracy existed, and that he
voluntarily participated in its activities for personal financial
gain by transporting drug proceeds to the Dominican Republic in
furtherance of the organization's broader objectives. From the
quantity of cash that Collazo allegedly delivered, the number of
the trips he allegedly made, and his extensive interactions with
members of the drug trafficking organization, the jury could also
reasonably infer that Collazo had actual knowledge of the charged
conspiracy. Collazo does not seem to dispute that he transported
some cash to the Dominican Republic at the request of certain
members of the organization, but he contends that it was earmarked
for paying the bond of Junior Cápsula's girlfriend. But based on
the modus operandi of the organization -- buying drugs in the
-26-
Dominican Republic and shipping them to Puerto Rico -- the jury
also could have reasonably inferred that at least some of the money
Collazo delivered was used in furtherance of the conspiracy's drug
trafficking aims, regardless of whether Collazo ferried drugs back
to Puerto Rico himself. After all, drug trafficking organizations
do not typically entrust millions of dollars in proceeds from drug
sales to a clueless "outsider." See Azubike II, 564 F.3d at 65.
Collazo focuses much of his argument on highlighting
three discrepancies in Marrero-Martell and Pérez-Colón's
testimony, which he submits incurably undermine the evidence
against him: first, that Marrero-Martell and Pérez-Colón do not
agree as to whether Collazo was paid for the September 2009 trip;
second, while Marrero-Martell recalls that Collazo transported a
money shipment to the Dominican Republic in May 2009, Pérez-Colón
recalls Collazo's involvement in a shipment sometime after
September 2009; and third, that while Marrero-Martell recalled
Collazo's fishing boat to be forty-feet long, HSI Agent Ricardo
Mayoral ("Agent Mayoral") testified that Collazo's vessel was
approximately sixty-one feet long.
While the defendants certainly could argue that these
inconsistences undercut the witnesses' testimony, the jury was not
required to so find. As we have held, "[e]vidence does not become
legally insufficient merely because of some inconsistencies in
-27-
witnesses' testimony." United States v. Ayala-García, 574 F.3d 5,
12 (1st Cir. 2009) (quoting United States v. Rodríguez, 457 F.3d
109, 119 (1st Cir. 2006)). Further, Agent Mayoral testified that
he detained a boat with Collazo and others (including Negrón-
Hernández) for a border search in September 2009, when the men
were on their way back from the Dominican Republic. While some of
the men explained that they had been fishing, no fish or fishing
equipment was found on the boat. The jury thus at least had enough
corroboration to reasonably infer Collazo's knowing participation
in the September 2009 shipment beyond a reasonable doubt.
Accordingly, on balance, there is sufficient evidence to
sustain Collazo's § 846 conviction.
2. Money Laundering Convictions
Next, Collazo argues that Counts 3 and 4 should be
overturned because there is insufficient evidence to establish
that he knew that the money he used to purchase a luxury car or
the money he transported to the Dominican Republic derived from
unlawful activity. Again, we disagree.
First, to affirm a conviction for conspiracy to commit
concealment money laundering under 18 U.S.C. § 1956(h), we must
find that the government presented sufficient evidence for a
reasonable jury to find beyond a reasonable doubt that Collazo
(1) "knowing that the property involved in a financial transaction
-28-
represents the proceeds of some form of unlawful activity,"
(2) conspired "to conduct such a financial transaction which in
fact involves the proceeds of specified unlawful activity,"
(3) with "know[ledge] that the transaction is designed in whole or
in part . . . to conceal or disguise the nature, the location, the
source, the ownership, or the control of the proceeds of specified
unlawful activity." United States v. Ayala-Vázquez, 751 F.3d 1,
14-15 (1st Cir. 2014) (alteration in original) (quoting United
States v. Cedeño-Perez, 579 F.3d 54, 57 (1st Cir. 2009)).
The "specified unlawful activity" alleged in Count 3 was
"the felonious importation, receiving, concealment, buying,
selling, or otherwise dealing in controlled substances." Count 3
specifically alleged that Collazo was part of the organization's
conspiracy "to conceal and disguise drug trafficking proceeds" by
arranging for "bulk shipments" of drug proceeds to the Dominican
Republic in "privately owned yachts," depositing drug money in
"nominee bank accounts," paying for goods with checks from those
accounts to conceal the ownership and source of the money,
commingling drug money with legitimate business proceeds, and
buying goods while misrepresenting the source of the money used to
pay for them.
On balance, Collazo's sufficiency challenge is without
merit. In addition to the aforementioned evidence about Collazo's
-29-
transportation of millions of dollars in drug proceeds for the
organization, there was testimony that, in 2008, Collazo purchased
a "very rare" Porsche GT2 for $313,699 in a cash deal. Collazo's
taxable income in 2008 was $12,038, which suggests that the lavish
car payment was part of a money-laundering scheme. There was
testimony that Collazo had several companies, including ECR
Transport, Transporte Collazo, and Empresas Collazo. The license
and title for the car were registered to ECR Property, which the
jury could reasonably infer was also an entity belonging to
Collazo. According to the president of the car dealership, Victor
Gómez, Collazo paid for the car with a mix of cash and checks from
different corporate entities. This included two $100,000 checks
drawn from the account of AC Electroamerica, an entity that the
organization used to launder drug proceeds by purchasing luxury
items such as cars and boats.
Marrero-Martell testified that it was common practice
for high-ranking members of the drug trafficking organization,
like himself and Torres-Estrada, to put such goods under the names
of third parties. Cf. United States v. Martínez-Medina, 279 F.3d
105, 116 (1st Cir. 2002) ("Purchasing large items with drug money
through third parties surely supports an inference of intent to
conceal."). Most of Torres-Estrada's "things were not under his
name." Moreover, Marrero-Martell testified that only four or five
-30-
Electroamerica checks were used for such purchases, and that he
knew that Torres-Estrada bought a Porsche GT2 with an
Electroamerica check. The president of the car dealership that
sold Collazo the Porsche GT2 testified that the company only
imported one or two of them that year. He also testified that
Collazo did not take delivery of the Porsche GT2. The jury could
reasonably infer from this evidence that Collazo knew that he was
using drug money to buy the Porsche GT2 in service of obscuring
the paper trail for a leader of the drug trafficking organization.
Cf. Ayala-Vázquez, 751 F.3d at 15–16 (affirming conviction for
conspiracy to commit money laundering "through the acquisition of
various vehicles," including luxury cars, where the evidence
showed that the defendant "used a 'straw purchaser' to buy and
register the[] vehicles in order to conceal the fact that they
were bought and paid for with drug money"). Here, the evidence
gives rise to the reasonable inference that Collazo was the "straw
purchaser."
Moreover, the government adduced testimony that Collazo
added the Porsche GT2 to the commercial insurance policy he
maintained for his transportation businesses. The evidence also
showed that the two money orders used to pay for the Porsche GT2's
policy in 2008 were made out by the CEO of the insurance company
at the time, who was fishing buddies with Collazo (and who has
-31-
since passed). Additionally, the CEO's secretary, Sandra Rios,
testified that around that time, Collazo brought $15,000 in cash
(about the value of the policy) to the CEO's offices in a "medium
sized brown [paper] bag." This is textbook concealment in
connection with a money laundering conspiracy. See id. (noting
that payments "placed in plastic or paper bags" can "demonstrate[]
an intent to conceal (citing United States v. Cedeño-Pérez, 579
F.3d 54, 61 (1st Cir. 2009))). From this evidence, the jury could
reasonably infer that Collazo knowingly laundered drug money by
purchasing of the car as well as the insurance policy.
Next, our analysis of the sufficiency of the evidence on
Collazo's conviction for conspiracy to commit international money
laundering in violation of § 1956(a)(2)(B)(i) and (h) differs only
in that it also assesses whether the government has put forth
sufficient evidence that Collazo conspired to "transport funds
from the United States to [a foreign country]." Cuellar v. United
States, 553 U.S. 550, 561 (2008). Count 4 alleged that Collazo
transported approximately $8 million from Puerto Rico to the
Dominican Republic in furtherance of the organization's
objectives.
As we have noted, there was testimony that around
$900,000 of an alleged $2 million transported by Collazo to the
Dominican Republic in September 2009 was earmarked to pay Junior
-32-
Cápsula's girlfriend's bond. However, that does not establish, as
Collazo urges us to find, that he lacked knowledge that the money
he transported to the Dominican Republic derived from drug sales.
As we concluded with respect to his § 846 challenge, a jury could
have reasonably inferred from the whole of the evidence that
Collazo knew that the millions of dollars he transported to the
Dominican Republic over the course of several trips derived from
the unlawful activity of drug trafficking. Therefore, we find
that the evidence was indeed sufficient to sustain Collazo's
conviction on Count 4 as well.
II. Comments Made by the Trial Judge
Out of all the issues on appeal, the defendants' primary
unified challenge is that they should be entitled to a new trial
because, at various crucial points throughout the trial, the
district court judge interjected during witness testimony in such
a manner that signaled an anti-defense bias to the jury and caused
the defendants serious prejudice. The defendants allege that the
district court judge "improperly intruded into the questioning of
witnesses, simultaneously assuming the role of the prosecutor and
manifesting disdain for the defense['s] theory" and thereby
subverting the credibility of key defense witnesses. They
specifically call into question several aspects of the trial
judge's conduct during the testimony of defense witness
-33-
Dávila-Reyes. Varestín and Collazo (plus Martínez by way of
adoption) also protest the trial judge's interjection in the
testimony of defense witness Rivera-Rivera.4
A. Legal Framework
As part of the basic guarantees of due process, "a trial
judge should be fair and impartial in his or her comments during
a jury trial." de la Cruz-Paulino, 61 F.3d at 997 (citation
omitted). Criminal defendants bringing a judicial bias claim can
prevail on appeal if they successfully establish that "(1) the
court's intervention gave the appearance of bias and (2) the
apparent bias seriously prejudiced [them]." United States v.
Rivera-Rodríguez, 761 F.3d 105, 112-13 (1st Cir. 2014) (referring
to the second prong as the "serious prejudice" test); see also
United States v. Márquez-Pérez, 835 F.3d 153, 158, 161 (1st Cir.
4 Collazo adds a few more fish to the pond too. He flags the
trial judge's questioning of defense witness Eliezer De Jesús, a
coworker of Varestín and Rivera-Rivera who offered general
testimony as to Varestín's good character, as another instance of
misconduct. He also highlights that during his defense counsel's
cross-examination of Agent Mayoral and his closing argument, the
trial judge made statements that undermined the counsel's
credibility, "basically telling the Jury that the attorney was
making things up." We deem these claims waived for lack of
sufficient argumentation. See United States v. Zannino, 895 F.2d
1, 17 (1st Cir. 1990) ("[I]ssues adverted to in a perfunctory
manner, unaccompanied by some effort at developed argumentation,
are deemed waived."). Even if not waived, we need not reach them
here given our ultimate disposition of the judicial misconduct
issue in favor of the defendants.
-34-
2016); Ayala-Vázquez, 751 F.3d at 24.
We review preserved claims that a trial judge's actions
deprived a defendant of a fair trial "for abuse of discretion, the
same standard applied to our review of the trial judge's denial of
the motion for a mistrial." Ayala-Vázquez, 751 F.3d at 23; see
also United States v. Pagán-Ferrer, 736 F.3d 573, 586 (1st Cir.
2013) ("When reviewing the denial of a motion for a mistrial, 'we
consider the totality of the circumstances to determine whether
the defendant has demonstrated the kind of "clear" prejudice that
would render the court's denial of his motion for a mistrial a
"manifest abuse of discretion."'" (quoting United States v.
Dunbar, 553 F.3d 48, 58 (1st Cir. 2009))). By contrast, we review
unpreserved claims for plain error. United States v. Lanza-
Vázquez, 799 F.3d 134, 142 (1st Cir. 2015). Defendants carry a
higher burden under this standard because they must demonstrate
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." United States v. LaPlante, 714 F.3d 641, 643 (1st
Cir. 2013) (citation and internal quotation marks omitted).
However, we have previously noted that the serious prejudice test
in a judicial bias claim more or less saddles criminal defendants
with a similar burden to the plain error standard. See
-35-
Rivera-Rodríguez, 761 F.3d at 112 & n.7 (noting that although the
serious prejudice standard does not "formally incorporate" the
fourth prong of plain error, since a serious prejudice finding
means the judge's misconduct compromised the fairness of a trial,
"the improper conduct necessarily affects the fairness, integrity,
or public reputation of judicial proceedings"); see also United
States v. Cruz-Feliciano, 786 F.3d 78, 84–85 (1st Cir. 2015)
(reinforcing that establishing a burden of "serious prejudice" is
"comparable to demonstrating prejudice under plain error review").
Under certain circumstances, a judge's behavior can be
"per se misconduct." Márquez-Pérez, 835 F.3d at 158. This happens
when judges "exceed their authority" by "testify[ing] as
witnesses, or add[ing] to or distort[ing] the evidence." Id. It
can also happen when judges "opin[e] to the jury on the credibility
of witnesses, the character of the defendant, or the ultimate
issue." Id. Defendants must still establish serious prejudice on
this theory. Id.
If the judge's actions are not per se misconduct, we
assess whether the trial judge abused his or her discretion by
demonstrating improper partiality in front of the jury. Id.; see
also Ayala-Vázquez, 751 F.3d at 23-24. This assessment by its
nature is very case specific. "To determine whether the jury would
perceive bias, we often must examine each intervention in the
-36-
context of the trial as a whole." Rivera-Rodríguez, 761 F.3d
at 111.
The trial judge plays the role of "governor of the
trial," not "mere moderator," Quercia v. United States, 289 U.S.
466, 469 (1933), so his or her "active participation" alone "does
not create prejudice []or deprive [a criminal defendant] of a fair
trial," Deary v. City of Gloucester, 9 F.3d 191, 194 (1st Cir.
1993). To be sure, the trial judge is afforded fairly wide
latitude to "question witnesses and to analyze, dissect, explain,
summarize, and comment on the evidence." Logue v. Dore, 103 F.3d
1040, 1045 (1st Cir. 1997); see also Fed. R. Evid. 614(b) ("The
court may examine a witness regardless of who calls the witness.").
Trial judges are given leeway to "criticize counsel, and express
'impatience, dissatisfaction, annoyance, and even anger,'" such
that "'a stern and short-tempered judge's ordinary efforts at
courtroom administration' are not error." Márquez-Pérez, 835 F.3d
at 158 (quoting Liteky v. United States, 510 U.S. 540, 555-56
(1994)).
But with great power comes great responsibility. Trial
judges cross the line of neutrality if they "misemploy [their]
powers," id., by assuming "the role of an advocate or 'otherwise
us[ing] [their] judicial powers to advantage or disadvantage a
party unfairly,'" Ayala-Vázquez, 751 F.3d at 24 (quoting Logue,
-37-
103 F.3d at 1045). Remaining impartial in a justice system built
on jury trials is essential to guaranteeing the due process rights
of criminal defendants, for the jury may be swayed by a judge's
"lightest word or intimation." Starr v. United States, 153 U.S.
614, 626 (1894). Importantly, "the concern with judicial
interrogation" is not that the court will "expose[] bad facts,
inconsistencies, or weaknesses in the case" by questioning
witnesses. Rivera-Rodríguez, 761 F.3d at 113. What is problematic
is "giv[ing] jurors the impression that [the court] has an opinion
on the correct or desirable outcome of the case," including about
the relevance or credibility of a witness, as this effectively
usurps the jury's role. Id.
The other half of the bias test is the serious prejudice
inquiry. An improper judicial intervention results in serious
prejudice when "there is a reasonable probability that, but for
the error, the verdict would have been different." Id. at 112.
"In analyzing prejudice, our cases regularly weigh three factors:
(1) the nature and context of the error, (2) the presence of
curative instructions, and (3) the strength of the evidence in
support of the judgment." Márquez-Pérez, 835 F.3d at 161. Of
additional note, "in cases with multiple judicial interventions,
determining the appearance of bias and the prejudicial effect of
that bias generally involves a cumulative effect inquiry."
-38-
Rivera-Rodríguez, 761 F.3d at 112.
B. The Court's Interventions
1. Testimony of Jayson Dávila-Reyes
The defense's principal trial strategy was to impeach
the credibility of cooperating witnesses Pérez-Colón and
Marrero-Martell, whose testimony constituted the overwhelming bulk
of the potentially incriminating evidence put to the jury.
Varestín called Dávila-Reyes in service of this theory. At the
time of his testimony, Dávila-Reyes was imprisoned on prior
unrelated gun and drug charges. Varestín posited that
Dávila-Reyes's testimony was especially trustworthy because,
unlike the cooperating witnesses, he was not offered (nor did he
expect) a sentencing benefit in exchange for taking the stand. Of
particular note, Dávila-Reyes testified that, while imprisoned in
the same unit, the government's cooperating witness Pérez-Colón
offered him money "[t]o give false information to be used as
testimony against other people." Specifically, Dávila-Reyes
stated that Pérez-Colón inquired about "whether [Dávila-Reyes]
knew of any violent crime committed by [Torres-Estrada] and his
gang," including Varestín. 5 Dávila-Reyes recalled that Pérez-
Colón implied that he would take what information Dávila-Reyes
5
Dávila-Reyes also testified that he knew Varestín a little
bit and never saw him with a gun or committing a violent act.
-39-
could provide and "bulk it up."
Dávila-Reyes explained that Pérez-Colón "wanted to get
information" because "[a]pparently, he was really upset at
[Torres-Estrada]." Dávila-Reyes recalled that Pérez-Colón said
something to the effect that "he wanted to hit [Torres-Estrada]
with everything he had," meaning "[his people] were going to be
really in trouble." Dávila-Reyes also explained that Pérez-Colón
likely approached him in the first place because "[b]ack then
[Dávila-Reyes] was having [his own] problems with
[Torres-Estrada]." Dávila-Reyes understood that Pérez-Colón's
offer was coming from Junior Cápsula. In the end, Dávila-Reyes
did not accept the offer.
On cross-examination, the government sought to discredit
Dávila-Reyes's plainly relevant attack on the government's case by
questioning Dávila-Reyes about his criminal history. In so doing,
the government wandered fairly far afield, asking about the origins
of his drug supply in relation to his prior drug offenses.
Raymundí objected to this line of questioning twice, which the
district court denied both times. Then, Varestín also lodged an
objection leading to the following interaction with the court
before the jury:
VARESTÍN: Objection, Your Honor. First of all,
beyond scope. Second of all, the
government is eliciting information
that is not relevant to this trial,
-40-
Your Honor.
THE COURT: His testimony also is not relevant in
this case.
VARESTÍN: Well, Your Honor, we differ,
obviously, but I believe his
testimony is relevant.
THE COURT: Counsel, he's accepted that he dealt
in drugs. The question is, where did
you get the drugs? If he says it was
his own drugs, does that mean he grew
them up in his back yard, or where
did he get the drugs? That's the only
question.
The government then proceeded to engage with
Dávila-Reyes's response that his indictment for his role in a drug
conspiracy charged him as "an enforcer," not "a runner." When the
government asked Dávila-Reyes to explain what "the enforcer does
for the conspiracy," Raymundí and Varestín both lodged objections
based on scope and relevance. The court rebuffed Raymundí's
attempt to object, noting that Dávila-Reyes was not his witness,
and overruled Varestín's objection. Subsequently, as the
government exhausted its attack on Dávila-Reyes, the court took
over questioning the witness about the nature of his role as an
"enforcer":
THE COURT: What would happen if somebody tried
to take away the drugs or tried to
interfere with the drug point of the
people that you are protecting? What
would you do? I am not saying about
at that time.
-41-
DÁVILA-REYES: Back then, I am not going to lie to
you but --
THE COURT: What would you do as an enforcer?
DÁVILA-REYES: Protect the drugs.
THE COURT: How would you do that?
DÁVILA-REYES: I would use all the means I have
available. That's why I am paying 14
years, Your Honor. That’s why I am
paying 14 years.
THE COURT: I am not asking you that. I am
asking you, what would you do in such
circumstances?
DÁVILA-REYES: Protect the drugs, sir.
THE COURT: What would you do to protect the
drugs?
DÁVILA-REYES: Grab it and run off with it, and try
to see -- keep myself from being
hurt, or defend myself, if it came to
that.
THE COURT: If the one that had the drug didn't
want to give it to you, what would
you do? If somebody came to take the
drug away from him, what would you do
as an enforcer?
DÁVILA-REYES: Well, in order to hold up the person
who has the drugs, they would have to
hold me up as well because I am the
one there protecting the drugs.
THE COURT: And what would you do to defend
yourself?
DÁVILA-REYES: Well, at that point it would be to
defend my life because that person is
coming to hurt me.
-42-
THE COURT: What would you do -- what would you
use to defend your life?
DÁVILA-REYES: To run, to try to fight -- maybe
fight the person as a very last, last
recourse, maybe, if the person was
armed, but I don't know. I never had
that experience, Your Honor.
THE COURT: Why would you need a gun then if you
would start to run away?
DÁVILA-REYES: That’s like -- I don't know. I used
to say it was like part of the
uniform.
The court then turned the witness back over to the government. No
additional objections were raised at this time.
After a truncated redirect examination, the district
court once again took over the questioning, this time in a direct
critique of the heart of the witness's claim that the government's
witness had solicited fabricated evidence:
THE COURT: [I]f you did not tell [Pérez-Colón]
anything about anything . . . why
did you have to make a sworn
statement?
DÁVILA-REYES: . . . I wanted [Torres-Estrada] to
know that I didn't have any intention
of hurting him, even though we were
supposedly enemies . . . .
THE COURT: But since you did not tell
[Pérez-Colón] anything about any
criminal activity on the part
of . . . Torres-Estrada, then where
would [Pérez-Colón] get the
information to fabricate a case
against [Torres-Estrada]? It's
simple. If you did not tell
-43-
[Pérez-Colón] anything, as you
mentioned before, of the criminal
activity of [Torres-Estrada], why
did you have to tell him to be
careful? What were they
fabricating? What were they
fabricating?
DÁVILA-REYES: I don't know.
THE COURT: You just mentioned --
DÁVILA-REYES: I didn't say he was fabricating.
THE COURT: You just mentioned they were
fabricating.
DÁVILA-REYES: No, I didn't say "fabricating."
THE COURT: And your testimony --
DÁVILA-REYES: He asked me to tell him so that he
could pass it on.
THE COURT: And your testimony here was that you
never told [Pérez-Colón] anything
about [Torres-Estrada].
DÁVILA-REYES: No.
THE COURT: So how could [Pérez-Colón] tell him
anything since you did not tell
[Pérez-Colón] anything about the
criminal acts of [Torres-Estrada]?
DÁVILA-REYES: When he told me that, I as in my cell
with another --
THE COURT: Sir, I don't need an explanation from
you. I just want you to tell
me . . . . What did [Torres-Estrada]
have to fear from [Pérez-Colón]?
DÁVILA-REYES: The same thing he was -- that he
would hurt him with some other person
who would be -- could provide
-44-
information. I saw it as an illegal
act.
THE COURT: But since [Pérez-Colón] did not have
any information from you, then you
are supposing that somebody else
could give it.
DÁVILA-REYES: I didn't really -- I don't really
know. But I simply saw it as an
illegal movement, and I gave him a
heads-up.
THE COURT: So what you are testifying here then
is what you perceived or what you
thought; not really what happened?
DÁVILA-REYES: No, it is what happened, because
those words I used were the words he
said to me.
THE COURT: All right. But since you did not
give him any criminal information
about [Torres-Estrada], then you are
assuming that somebody else would
have given it to harm
[Torres-Estrada].
At this point, Varestín objected "to the Court's line of
questioning" on the grounds that the court was "outdoing the job
for the [g]overnment" by improperly "trying to impeach [the
defense's] witness." The district court responded: "I wanted to
clarify for the jury whether what he is saying is what he really
saw or did or heard, or something that he is imagining that
happened."
Subsequently, Varestín filed a motion for mistrial based
on the trial judge's comment in front of the jury that
-45-
Dávila-Reyes's "testimony also is not relevant in this case." The
court denied the motion and explained that defense counsel was
"the one that raised the issue that his testimony was not relevant
to this trial, because the [g]overnment was trying to elicit
information through his testimony that was not relevant to the
trial, and I just said, yes, his testimony is not relevant in this
case . . . ."
Following the court's decision, the other defendants
sought to join in Varestín's motion. Raymundí also requested a
jury instruction to disregard the court's comment. However, since
Dávila-Reyes was Varestín's witness, and Varestín expressed his
preference to withhold a specific instruction on the relevancy
comment until the jury instructions at the end of trial to avoid
bringing more attention to the matter than necessary, the court
stated that it would defer to Varestín's preference. Nevertheless,
later that day the court told the jury:
I just want to remind you that as I told you at the
beginning of the case, you as jurors are the sole
judges of the facts and the credibility of the
witnesses. Comments that I may have made and
comments by the Court or the attorneys are not
considered as evidence, nor [should] my comments or
my questions . . . be an indication to you how to
view that evidence nor how -- what I think about the
evidence.
As promised, the court also addressed the matter in its final
instructions to the jury before they began deliberation:
-46-
During the course of the trial, I occasionally have
asked questions of a witness. Do not assume that I
hold any opinion on the matters to which my questions
may relate. The Court may ask questions simply to
clarify a matter not to help one side of the case or
hurt the other. Remember at all times that you as
jurors are at liberty to disregard all comments of
the Court in arriving at your own findings as to the
facts. So anything I may have said during the course
of the trial is not evidence also.
At this juncture, the court also instructed the jury on
weighing the credibility of cooperating witnesses:
[Marrero-Martell, Pérez-Colón, and Figueroa-Agosto]
have provided evidence on their agreements with the
government, participated in the crime charged
against the defendants, and expect to receive the
benefit of a recommendation from the government to
receive a lower sentence in exchange for providing
information. Some people in this position are
entirely truthful when testifying. Still, you should
consider the testimony of these individuals with
particular caution. They may have had reason to make
up the stories or exaggerate what others did because
they want to help themselves.6
6 The court additionally instructed:
You should also ask yourselves whether there was
evidence that a witness testified falsely about an
important fact, and ask whether there was evidence
that at some other time, a witness said or did
something or didn't say or do something that was
different from the testimony the witness gave during
trial. But keep in mind that a simple mistake
doesn't mean that a witness wasn't telling the truth
as he or she remembers it. People naturally tend to
forget some things or remember them inaccurately. So
if a witness misstated something, you must decide
whether it was because of an innocent lapse in memory
or an intentional deception. The significance of
your decision may depend on whether the misstatement
is about an important fact or about an unimportant
detail.
-47-
The defendants renewed their challenges to the court's
comments about the relevance of Dávila-Reyes's testimony in their
post-verdict Rule 33 motions. The district court declined to find
that its comments warranted a new trial. Rather, the court,
assuming arguendo that the comments were prejudicial given the
centrality of Dávila-Reyes's testimony to the defense's trial
strategy of impeaching the credibility of the cooperating
witnesses, determined that its curative instructions "dispelled"
any prejudice. Moreover, the court noted that any error was
harmless because "neither D[á]vila[-Reyes'] testimony nor any
comment by the court would be enough to overcome the overwhelming
evidence of guilt presented against the defendants at trial." That
"overwhelming evidence" was the testimony of the government's
cooperators, i.e., the testimony that Dávila-Reyes's testimony was
aimed at discrediting.
2. Testimony of David Rivera-Rivera
Varestín also called his coworker Rivera-Rivera, who
works as a refrigeration technician, to testify. Rivera-Rivera
was on the December 2009 trip to the Dominican Republic and he
testified that, contrary to what Marrero-Martell and Pérez-Colón
had stated, the purpose of the trip was to "enjoy [them]selves and
get to know Santo Domingo," and generally to "have fun." He also
stated that "nothing happened" during the boat trip aside from
-48-
"drinking on the way." Rivera-Rivera said that he did not see
anyone with guns or drugs during the trip or hear anyone talking
about illegal acts such as murder.
On redirect examination, Varestín's counsel asked
Rivera-Rivera how many beers he drank on the boat trip. The
government objected as beyond the scope, which the court overruled.
Rivera-Rivera then answered, "several beers," which prompted the
following exchange:
THE COURT: Several is what number?
VARESTÍN: Can you be more specific?
RIVERA-RIVERA: Around seven or eight beers.
THE COURT: During the trip?
RIVERA-RIVERA: During the trip.
THE COURT: 15 hours?
RIVERA-RIVERA: Well, exactly -- I don't recall the
exact time it took for the trip, but
it was during the -- it was during
the trip.
THE COURT: You left at 7:00 p.m., Puerto Rico.
RIVERA-RIVERA: Uh-huh.
THE COURT: And you got to the Dominican Republic
around 1:00 or 2:00 in the afternoon
the next day?
RIVERA-RIVERA: Yes.
THE COURT: How many hours is that? You do the
arithmetic and tell me.
-49-
RIVERA-RIVERA: I can't tell you exactly. I don't
recall.
THE COURT: Okay. Let's start at 7:00 p.m. until
midnight. How many hours?
RIVERA-RIVERA: From 7:00 to 10:00?
THE COURT: You know I didn't say 10:00. You
knew I said midnight. How many hours
are there?
RIVERA-RIVERA: Five hours.
THE COURT: And from midnight to 7:00 a.m., how
many hours are there?
RIVERA-RIVERA: Seven hours.
THE COURT: Plus five the night before are how
many?
RIVERA-RIVERA: Plus five of the previous night -- I
am lost again.
THE COURT: Well, find yourself. Five the night
before. From 7:00 p.m. to midnight,
that's five. And from midnight to
7:00 in the morning, how many hours?
RIVERA-RIVERA: Seven.
THE COURT: Plus the five the night before, how
many is that?
RIVERA-RIVERA: 12.
THE COURT: And from 7:00 a.m. until noon, how
many are there?
RIVERA-RIVERA: Five.
THE COURT: Plus 12 already, how many is that?
RIVERA-RIVERA: 17.
-50-
THE COURT: And one more, from noon to 1:00
o'clock or 2:00 o'clock, how many
more?
RIVERA-RIVERA: About 18 hours.
THE COURT: And that's how long the trip took?
RIVERA-RIVERA: Approximately. I don't recall
exactly.
THE COURT: But approximately 17 hours?
RIVERA-RIVERA: More or less.
THE COURT: And you had only seven beers during
those 17 hours?
RIVERA-RIVERA: Around, more or less. Perhaps one or
two more.
There were no objections to this inquiry, nor did any of the
defendants raise the issue in their post-verdict Rule 33 motions.
C. Analysis
Where the Government builds its case against criminal
defendants predominantly on cooperating witness testimony, which
the jury must weigh against the testimony of key defense witnesses,
"the [district] court must take particular care to avoid any
appearance that it favors the government's view of the case."
Rivera-Rodríguez, 761 F.3d at 120 (citation omitted); see also
United States v. Barnhart, 599 F.3d 737, 745 (7th Cir. 2010);
United States v. Tilghman, 134 F.3d 414, 416 (D.C. Cir. 1998)
("Because juries, not judges, decide whether witnesses are telling
the truth, and because judges wield enormous influence over juries,
-51-
judges may not ask questions that signal their belief or disbelief
of witnesses." (citing United States v. Wyatt, 442 F.2d 858, 859-
61 (D.C. Cir. 1971)). Here, the government's proof relied heavily
-- and in many respects crucially -- upon the testimony of three
cooperating witnesses: Marrero-Martell, Pérez-Colón, and
Figueroa-Agosto. If the jury did not believe testimony from those
cooperating witnesses, the government's case largely fell apart as
to the specific crimes charged.
We turn first to the trial judge's comment that
Dávila-Reyes's testimony was flat-out "not relevant in this case."
To the contrary, Dávila-Reyes's testimony was highly relevant and
central to the defense. He directly attacked the credibility of
Pérez-Colón by stating that Pérez-Colón was offering money for
information that could be "bulk[ed] . . . up" to incriminate the
defendants. Earlier testimony had revealed that Pérez-Colón was
in touch with the other cooperating witnesses and Junior Cápsula
on the subject of cooperating with the government. So Dávila-
Reyes's testimony about Pérez-Colón, if believed, undercut more or
less the entire prosecution case by suggesting that the cooperators
were fabricating testimony to take down a rival faction.
We have previously noted that adding to the evidence by
weighing in on witness credibility amounts to "per se misconduct"
(i.e., per se appearance of bias), Márquez-Pérez, 835 F.3d at 158;
-52-
see also Ayala-Vázquez, 751 F.3d at 27-28, based on the Supreme
Court's decision to reverse in Quercia, where the trial judge added
to the evidence by expressing his opinion to the jury that the
defendant's body language while on the witness stand indicated
that he was lying, see 289 U.S. at 471-72. Distorting the evidence
is similarly problematic from the standpoint of signaling bias,
see Márquez-Pérez, 835 F.3d at 158, especially when the distortion
impacts a critical issue such as the reliability of the testimony
offered by three cooperating witnesses, which in this case was
instrumental to the government's case against the defendants. The
trial judge's relevance comment did just that, "put[ting] his own
experience, with all the weight that could be attached to it, in
the scale against the accused." Quercia, 289 U.S. at 471. The
off-hand comment, which did not serve "to assist the jury in
reaching the truth," id. at 472, signaled to the jury that they
should disregard Dávila-Reyes's crucial and quite relevant defense
evidence as not relevant. By undermining Dávila-Reyes's testimony
in this manner, the judge's comment also undermined the defense
theory that the cooperating witnesses each had a motive to lie.
We could hardly say then that dismissing Dávila-Reyes's
testimony as irrelevant to the case did not cause serious
prejudice, for there is a "reasonable probability" that the jury
would have weighed the evidence differently (and thus reached a
-53-
different outcome) had the trial judge not tipped the scales
against Dávila-Reyes's testimony. Márquez-Pérez, 835 F.3d at 161.
In other words, if the judge had not intervened, the jury may have
credited Dávila-Reyes and disbelieved the cooperators.
To be sure, the government did put other witnesses on
the stand. Agent González implicated Martínez by naming him as an
employee of the known drug distributor, Luna-Archeval. Agent
Mayoral testified that he stopped Collazo's boat for a border
search on its way back from the Dominican Republic, but there were
neither drugs nor money on the boat. The car dealership and
insurance company witnesses implicated Collazo in a potential
money-laundering scheme through their testimony about his purchase
of a Porsche GT2 and an insurance policy for that car.
Additionally, multiple federal law enforcement agents testified
about interviews they conducted with Pérez-Colón, Marrero-Martell,
Varestín, and Rivera-Rivera in the Dominican Republic, which
occurred during the trip described in the testimony of the
cooperating witnesses as a thwarted attempt to kill Colonel
González. During those interviews, the men told law enforcement
that the purpose of the trip was pleasure. Thus, the trial
narratives of the cooperating witnesses are what effectively
connected the dots and filled in the blanks as to the defendants'
alleged participation in the drug trafficking conspiracy. For
-54-
instance, Agent González's testimony that Martínez worked for
Luna-Archeval packs much less of a punch without Pérez-Colón's and
Figueroa-Agosto's detailed explanations of how Martínez accepted
delivery of and stored the drug inventory. Although the
independent evidence about Collazo's sketchy purchase of the
Porsche GT2 and insurance policy is certainly enough
circumstantial evidence to raise a red flag, it is
Marrero-Martell's explanation of the money-laundering scheme and
the practice of paying with checks from Electroamerica that truly
completes the picture. While law enforcement testimony places
Varestín in the Dominican Republic in December 2009 with members
of the drug trafficking organization, only the testimony of the
cooperating witnesses specifically connects Varestín to the
organization's operations. Thus, on balance, the testimony of the
cooperating witnesses was the crux of the government's case against
the defendants, and for Varestín and Raymundí, provided the lion's
share of the potentially incriminating evidence against them.
The trial judge attempted to explain away his relevance
comment as actually supporting the defense's objection to a
government question regarding where Dávila-Reyes sourced his drugs
when he was involved in drug trafficking activities. However, the
record paints a different picture. The district court denied both
of Raymundí's objections to this line of questioning. Varestín
-55-
then lodged a third objection, reiterating the view that the
specific information the government was attempting to elicit was
not relevant to the trial. Instead of expressly ruling on
Varestín's relevancy objection, the trial judge responded that
"[Dávila-Reyes's] testimony also is not relevant in this case."
In context, the comment reads more like an off-the-cuff opinion
about the weight the judge gave to the testimony that Dávila-Reyes
had offered rather than a specific evidentiary ruling (the latter
being well within the province of the trial judge). Seen in this
light, the comment actualized the risk that the jury, which is
susceptible to being influenced by the judge's "lightest word or
intimation," Starr, 153 U.S. at 626, would be swayed by the judge's
view in its determination of whether and to what extent to both
weigh and credit Dávila-Reyes's testimony.
Moreover, the trial judge's curative instructions here
were "too little too late" because, where the reliability of
witness testimony is so strongly implicated (here, that of the
cooperating witnesses against that of the defense witnesses),
"such interference with jury fact-finding cannot be cured by
standard jury instructions." Tilghman, 134 F.3d at 421 (citing
United States v. Filani, 74 F.3d 378, 386 (2d Cir. 1996)). The
analysis might be different had the judge specifically withdrawn
the comment by explaining that he was by no means suggesting that
-56-
the witness's testimony on direct was not relevant to the case,
but that is not what transpired here.7
All that being said, we need not and do not rest our
holding on the single comment about the relevance of Dávila-Reyes's
testimony. As we have detailed above, the trial judge's further
intercessions consistently reinforced the pro-government message
conveyed by the relevant comment. The trial judge "took over the
prosecutor's role" with his questioning of Dávila-Reyes after
redirect examination. Rivera-Rodríguez, 761 F.3d at 120. The
court began with an innocuous question, asking Dávila-Reyes to
explain why he needed to make a sworn statement about Pérez-Colón's
attempt to recruit him in prison if indeed he did not provide any
information that could be leveraged against Torres-Estrada's crew.
Dávila-Reyes explained that he did it to protect himself so
Torres-Estrada would not think Dávila-Reyes had crossed him.
Seeking this type of clarification about the witness's testimony
surely falls on the permissible side of the line in terms of
assisting the jury, especially because it appears that the defense
7 One might expect the defendants to have requested a better
curative instruction recanting the relevancy comment given its
prejudicial potential, but the defendants had different ideas
about how best to handle the judge's comment. Raymundí sought a
specific instruction that the jury disregard the relevance
comment. On the other hand, Varestín (who called the witness) did
not want to call more attention to the matter and thus preferred
to withhold a specific instruction until the end of trial.
-57-
caused some initial confusion by mistakenly suggesting that
Dávila-Reyes had made a sworn statement in this case, when in fact,
the sworn statement pertained to a different case. What followed,
however, shows the trial judge crossing a line to impermissibly
argue the prosecution's case.
As if cross-examining Dávila-Reyes, the trial judge
asked how, if Dávila-Reyes did not provide any information to
Pérez-Colón, Pérez-Colón would be able to fabricate a case against
Torres-Estrada and his crew. This appears to have been a
rhetorical question because the judge commented, "[i]t's simple,"
before pressing Dávila-Reyes again on why he wanted to give
Torres-Estrada a heads-up and nearly demanding that he answer,
"What were they fabricating? What were they fabricating?" The
court continued this line of questioning for another page of
transcript, trying to get Dávila-Reyes to concede that he had no
first-hand knowledge of whether or not someone else might have
given information to Pérez-Colón. The exchange culminated with a
leading question that likely further discredited Dávila-Reyes's
testimony in the eyes of the jury: "So what you are testifying
here then is what you perceived or what you thought; not what
really happened?" Cf. Rivera-Rodríguez, 761 F.3d at 123 ("The
court's assumption of the prosecutor's role in questioning the
cooperating witnesses, and its use of leading questions to
-58-
facilitate the inquiry, undoubtedly made the trial more efficient,
but they also created the impression that the court favored the
government's version of events."). One might expect the government
to impeach a hostile witness this way on cross-examination, but
coming from the judge, it "suggest[ed] to the jury that the court
itself ha[d] a stake in the jurors' understanding" the witness's
testimony a certain way. Rivera-Rodríguez, 761 F.3d at 121; see
also id. at 121-22 ("In short, the court's [line of questioning]
was a much more effective way to accomplish what the prosecutor
was trying to accomplish, and it added to the overall sense that
the judge was helping the government make its case."); United
States v. Hickman, 592 F.2d 931, 935 (6th Cir. 1979) ("The district
judge's brilliant redirect examination would have been entirely
proper had it been done by the prosecutor."). In sum, given the
centrality of Dávila-Reyes's testimony to the defense's case, the
court's intervention compounded the appearance of bias and
resulting prejudicial effect created by the earlier comment on the
relevance of Dávila-Reyes' testimony and thus similarly could not
be cured by boilerplate jury instructions. Compare Rivera-
Rodríguez, 761 F.3d at 123 (finding serious prejudice where the
judge's interventions in witness testimony "created the impression
that the court favored the government's version of events"), with
Ayala-Vázquez, 751 F.3d at 24 (finding no prejudice where the
-59-
court's comments bore on eliciting relevant, topical information),
and Márquez-Pérez, 835 F.3d at 161–62 (finding no prejudice where
the court's conduct related to counsel's courtroom behavior and
not the merits of the case). The impact is especially severe here
because the judge's intervention took place during the
presentation of important testimonial evidence in the defense case
regarding the credibility of the cooperating witnesses and their
potential motivations to lie. See Márquez-Pérez, 835 F.3d at 161
("[M]isconduct during the presentation of critical evidence is
more likely to prejudice than that during testimony irrelevant to
the defendant." (citations omitted)).
In terms of its cumulative effect, the trial judge's
"enforcer" questioning during the government's cross-examination
of Dávila-Reyes weighs in favor of the trial judge showing an anti-
defense witness (or pro-cooperating witness) bias. The same goes
for the trial judge's subsequent questioning of Rivera-Rivera,
which is concerning because it shows that the judge continued
playing prosecutor even after the defense specifically objected
that the court was "outdoing the job for the Government" with its
questioning of Dávila-Reyes. In any event, because no defense
counsel objected contemporaneously, our review is for plain error
(although as we have noted, this does not make much of a difference
as far as the third and fourth prongs of the test are concerned).
-60-
Nevertheless, evaluated for their cumulative effect established by
the aforementioned interventions into Dávila-Reyes's testimony,
the error is both clear and obvious. See Rivera-Rodríguez, 761
F.3d at 112; cf. Filani, 74 F.3d at 387 ("It is 'clear error for
a trial judge to ask questions bearing on the credibility of a
defendant-witness prior to the completion of direct examination,'"
as well as "[w]hen a judge joins in cross-examination," because it
creates a "'tag team' situation," which gives the jury "a powerful
[and impermissible] impression that the district court agreed with
the government that the defendant was guilty[.]" (quoting United
States v. Victoria, 837 F.2d 50, 55 (2d Cir. 1988))).
The "enforcer" questioning leaves a particularly bad
taste because after overruling the defense's objection to the
government's questions on that subject, the trial judge took over
the cross-examination of Dávila-Reyes and asked leading questions
about his past willingness to use force to protect his life and
his drugs when he worked as an enforcer. Viewed in isolation, the
exchange would likely be a permissible effort to "clear up
inadvertent witness confusion" about what the role of an enforcer
is in a drug operation. Hickman, 592 F.2d at 933. But in the
context of the judge's other interactions with Dávila-Reyes, and
especially given the length of the exchange, the judge's comments
amounted to cross-examination aimed at developing reasons not to
-61-
believe the witness.
Relatedly, the government contends that the fact that
the jury acquitted Varestín, Martínez, and Collazo on Count 1 (the
drug importation conspiracy charge) "shows that the jurors were
able to consider the evidence free from any bias that the court's
comments may have betrayed." This logic fails to persuade us.
Without overly psychoanalyzing the jury, the acquittals on Count 1
merely signify that there was only enough evidence to sustain a
conviction on that count for one of the four defendants.
The optics deteriorate further when we factor in the
court's badgering of Rivera-Rivera to come up with an exact number
of beers he drank on a boat trip he took seven years earlier and
to calculate the exact duration of that boat trip while on the
stand. Rivera-Rivera's credibility was crucial to the defendants.
He was the only one on the boat trip to the Dominican Republic in
December 2009 without ties to the drug trafficking organization.
His testimony that the trip was a vacation and that he did not see
or hear any criminal activity on the boat called into question the
cooperators' testimony that the purpose of the trip was to kill
Colonel González. The judge's extended toying with Rivera-Rivera
over how long the trip lasted and how many beers he drank was
classic cross-examination aimed at discrediting the witness,
making "the jury more inclined to believe the government's version
-62-
of events." Rivera-Rodríguez, 761 F.3d at 123. Each of these two
interventions may not have crossed the line alone, see, e.g.,
Márquez-Pérez, 835 F.3d at 158 (noting that a trial judge's
impatience, annoyance or short temper are not sufficient
conditions for a reversal on misconduct), but together they
reinforce our perception that the judge's comments created the
appearance of bias because they show a pattern of different
treatment of the defense witnesses than of the cooperating
witnesses. See Tilghman, 134 F.3d at 421.
Importantly, the judge's inquiries were visibly
"one-sided." Rivera-Rodríguez, 761 F.3d at 121. In other words,
this was not a case in which the district court was even-handed in
its aggressive questioning of witnesses both for the defense and
the prosecution.
These two additional instances of "intrusive
questioning," Filani, 74 F.3d at 387, compounded the prejudice to
defendants that we have identified with respect to the judge's
relevance comment and his questioning of Dávila-Reyes after the
defense's redirect examination. Varestín and Raymundí feel the
cumulative effect rather acutely because Rivera-Rivera's testimony
created a material discrepancy as to the cooperating witnesses'
testimony about the purpose of the December 2009 trip to the
Dominican Republic. We thus find that these interventions
-63-
(although not contemporaneously objected to at trial) amount to
plain error when considered in the aggregate. The trial judge's
perceptible partiality impaired the integrity and fairness of the
trial. Given the severity of the prejudice to the defendants
vis-à-vis the tipping of the scales in favor of the credibility of
the cooperating witnesses, these interventions could not be cured
by the standard instructions offered by the trial judge.
To facilitate courtroom administration, we generally
afford trial judges "wide discretion to interject questions in
order to throw light upon testimony or expedite the pace of a
trial." Logue, 103 F.3d at 1045. To that end, because reading
signs of bias from the paper record without first-hand knowledge
of the atmosphere and tone in the courtroom is a delicate task,
the standard of review we deploy for claims of judicial misconduct
is a deferential one (and reasonably so). Cognizant of the
challenges of managing a complex eleven-day trial, we nevertheless
find that, the cumulative effect of the trial judge's comment that
Dávila-Reyes's testimony was irrelevant to the case plus the
judge's "continued one-sided interventions" (even after objection
from defense counsel) created an appearance of anti-defense
witness bias. Without the trial judge's prejudicial
interventions, "there is a reasonable probability that [the
defendants] would not have been convicted." Rivera-Rodríguez, 761
-64-
F.3d at 123. Once the judge signaled to the jury his disbelief of
(or his indication to disregard the testimony of) the defense
witnesses and, by extension, the defense theory, his comments
bolstered the government's case and seriously prejudiced the
defendants. In doing so, the judge improperly altered the jurors'
ability to evaluate competing testimony on their own. See United
States v. Meléndez-Rivas, 566 F.3d 41, 50 (1st Cir. 2009). Because
this judicial misconduct infringed upon all four defendants' right
to a fair trial, we vacate their convictions and remand for a new
trial.
III. Brady Issues
The defendants collectively raise a host of other
issues.8 Because the relief we order due to the trial court's one-
8 Among the various issues raised, Varestín alleges that the
jury selection process was inadequate because the district court
prevented the defense from exercising challenges for cause, which
he claims amounts to a structural error requiring a new trial.
Collazo echoes this argument and adds that it was an abuse of
discretion specifically not to excuse a particular juror for cause.
Additionally, Varestín and Raymundí -- joined by both Martínez and
Collazo -- claim that the Government's elicitation of testimony
from its cooperating witnesses about the planned murder of Colonel
González and the killing of Marrero-Martell's nephew, Menor,
violated the district court's pre-trial ruling (reiterated at
sidebar) and thus amounted to prejudicial prosecutorial
misconduct. Relatedly, Varestín asserts that the court's failure
to translate Pérez-Colón's testimony about the death of Menor into
English constitutes a reversible violation of the Jones Act, 48
U.S.C. § 864. Martínez adds his own take on prosecutorial
misconduct, which is that the Government both engaged in improper
questioning of defense witness Esmira Negrón-Irlanda (Martínez's
-65-
sided intercessions equals or exceeds the potential relief that
could result from our disposition of those other issues, and
because the other issues are unlikely to arise again in the same
way, we need neither reject nor accept any party's arguments
concerning any of these issues. There is one exception: to make
clear that a long-running Brady dispute in this case has been put
to bed, we consider and reject defendants' appeal as far as it
concerns that issue. Our reasoning follows.
A. Background
Following trial but prior to sentencing, Varestín's
counsel (an Assistant Federal Public Defender) was appointed to
represent Carlos Ochoa-Rocafort ("Ochoa"), a former prison guard
facing an indictment on corruption charges in an entirely separate
criminal case. See United States v. Ochoa, No. 17-cr-00065–JAG
mother) on cross-examination and improperly vouched for
cooperating witness Pérez-Colón during closing arguments.
Raymundí, Martínez, and Collazo also add a challenge based on the
cumulative effect of the various trial errors. To his personal
list of trial grievances, Collazo adds contentions that the
district court wrongly made public the defense's sealed ex parte
motion for records of a boat parked in a lot outside Collazo's
place of business and that the Government improperly coached a
witness. Martínez, for his part, adds that the delayed sentencing
of Figueroa-Agosto and Pérez-Colón, as well as a denial of access
to daily transcripts, deprived him of a fair trial. Raymundí and
Collazo also challenge the quashing of a witness subpoena aimed at
showing that an important government witness testified to facts
that he had not previously included when interviewed by law
enforcement. Finally, Varestín submits that his 235-month
sentence was procedurally unreasonable because it was based on a
clearly erroneous drug quantity finding.
-66-
(D.P.R. Feb. 9, 2017). Ochoa informed Varestín's counsel that
Marrero-Martell, Pérez-Colón, and Junior Cápsula may have assisted
the government in its investigation of Ochoa's case. Prior to
sentencing, Varestín requested that the government verify whether
Marrero-Martell, Pérez-Colón, or Figueroa-Agosto were working as
confidential informants at the time of the defendants' trial and,
if they were, whether any such relevant information fell within
the government's disclosure obligations.
At Varestín's sentencing hearing on March 14, 2017, his
attorney indicated that the government had responded to the
attorney's emails about the confidential informant issue but had
not meaningfully addressed the request because it was allegedly
unable to get an update from the prosecutor who tried the case
(who was no longer a full-time employee in the office).
Consequently, Varestín asked the district court to order the
government to disclose whether Marrero-Martell and Pérez-Colón
were indeed confidential informants during Varestín's trial and,
if so, to disclose the nature of any agreements in existence. In
response, the government stated that it had still not been able to
get in touch with the trial prosecutor but that it believed it had
complied with all of its discovery obligations "up until [the]
trial date."
On September 14, 2017, Varestín filed a written motion
-67-
reiterating the request made at sentencing, which the other three
defendants moved to join. In response, on October 12, 2017, the
government asserted that the defendants' "'discovery-like'
request" lacked "a prima facie showing of relevance, particularly,
at this juncture of the criminal matter," and that the defendants'
filing of notices of appeal had nevertheless divested the district
court of jurisdiction over the matter. Citing to various cases,
including Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v.
United States, 405 U.S. 150 (1972), Varestín objected to the
government's response by pointing out that its disclosure duty was
ongoing and that the defense had established its burden of proof
that the government had violated its obligation to disclose
specified exculpatory and impeachment material. In Varestín's
eyes, the government had failed to disclose potential impeachment
evidence despite the defense's persistent requests, and this
continuing non-disclosure was prejudicial because it hampered the
defense's ability to adequately cross-examine the cooperating
witnesses about whether they were also confidential informants in
another unrelated case, teeing up what we have described as a
classic credibility contest.
The district court denied Varestín's Brady motion,
rendering moot the co-defendants' motions to join. Varestín then
filed an ex parte motion for reconsideration, as well as a motion
-68-
to compel an array of Brady and Giglio materials pertaining to the
cooperating witnesses. Martínez moved to join the latter motion.
Without explanation, hearing, or in camera review of the
undisclosed material, the district court denied the first motion,
rendering the second motion moot.
On appeal, Varestín and Collazo (joined by Martínez and
Raymundí) argued that the district court abused its discretion in
denying their "post-conviction motions concerning the
[g]overnment's failure to comply with its affirmative, ongoing
duty to disclose exculpatory and impeachment evidence" under Brady
and Giglio to such an extent that a new trial was warranted.
Citing United States v. Rosario-Peralta, 175 F.3d 48, 55-57 (1st
Cir. 1999), the government responded that we should remand the
case to the district court (while retaining jurisdiction) to more
fully develop the record in the interest of facilitating our
review. In light of the parties' briefing on this issue, we
ordered a limited remand to a different district court judge to
supplement the record on the question of "whether the government
violated its disclosure obligations" under Brady or Giglio.
On remand, Varestín (joined by all of his co-defendants)
filed a motion that effectively sought three forms of relief.
First, the defense requested an evidentiary hearing on their Brady
and Giglio claims. Second, the defense asked the court for an
-69-
order compelling the government to confirm whether Marrero-Martell
and Pérez-Colón were confidential informants before, during, or
after the trial and, if they were, to produce their unredacted
confidential informant file detailing any undisclosed benefit or
agreement. Third, they asked the court to compel the production
of a six-page document containing a list of people against whom
Junior Cápsula planned to testify (although he never did testify
in this case), which the government presented to the trial judge
during an ex parte sidebar but which was never turned over to the
defense.
On March 25, 2020, after reviewing the parties'
submissions, the district court denied Varestín's motion,
rendering moot those of his co-defendants. By the district court's
assessment, the defendants simply had not made a sufficient showing
on remand to merit a hearing as to whether the government had
violated its disclosure obligations. Because "[t]he threshold
showing for securing an evidentiary hearing on a Brady claim is
lower than the necessary showing for establishing a Brady claim,"
the court reasoned that the defendants had therefore "also failed
to show entitlement to a Brady or Giglio order on the merits."
The defendants' timely appeals of the district court's ruling are
presently before us through their consolidation with the original
appeals.
-70-
B. Analysis
We review the district court's Brady and Giglio rulings
for abuse of discretion. United States v. Caro-Muñiz, 406 F.3d
22, 29 (1st Cir. 2005). Likewise, our review of the district
court's denial of an evidentiary hearing in the Brady context is
for abuse of discretion. See United States v. Connolly, 504 F.3d
206, 220 (1st Cir. 2007).
"A defendant's right to due process is violated when the
prosecution suppresses evidence that is both favorable to the
accused and material either to guilt or innocence." Moreno-Morales
v. United States, 334 F.3d 140, 145 (1st Cir. 2003) (citing Brady,
373 U.S. at 87). The government's disclosure obligations under
Brady also extend to evidence that the defense could have used to
impeach the prosecution's key witnesses. See id. (citing Giglio,
405 U.S. at 154). This is an independent duty of the prosecution
that exists regardless of whether the defendant requests favorable
evidence from the government. See Kyles v. Whitley, 514 U.S. 419,
433-34 (1995).
The defendant's burden is to show that the allegedly
suppressed evidence is "material," meaning that "its suppression
undermines confidence in the outcome of the trial." United States
v. Bagley, 473 U.S. 667, 678 (1985). To prevail on a Brady or
Giglio claim, the defendant must establish three conditions:
-71-
"[t]he evidence at issue must be favorable to the accused, either
because it is exculpatory[] or because it is impeaching; that
evidence must have been suppressed by the State, either willfully
or inadvertently; and prejudice must have ensued." Strickler v.
Greene, 527 U.S. 263, 281-82 (1999); accord United States v. Peake,
874 F.3d 65, 69 (1st Cir. 2017). Unlike in the sufficiency of the
evidence test, the prejudice element in this test considers whether
in the absence of the suppressed evidence, the defendant "received
a fair trial, understood as a trial resulting in a verdict worthy
of confidence." Kyles, 514 U.S. at 434; see also Peake, 874 F.3d
at 69 (defining a defendant's chances of success in terms of
whether there is "'a reasonable probability that, had the evidence
been disclosed to the defense' in a timely manner, 'the result of
the proceeding would have been different.'" (quoting Connolly, 504
F.3d at 213)). On balance, we assess materiality "collectively,
not item by item." Moreno-Morales, 334 F.3d at 146 (citing Kyles,
514 U.S. at 436). When a defendant's challenge is based on newly
discovered Brady or Giglio material, he must also establish that
it "was unknown or unavailable to him at the time of trial," and
that his inability to discover the evidence was not the product of
his own "lack of diligence." Peake, 874 F.3d at 69 (quoting United
States v. Maldonado-Rivera, 489 F.3d 60, 66 (1st Cir. 2007)).
-72-
In the Brady context, evidentiary hearings "are the
exception rather than the rule." Connolly, 504 F.3d at 220. To
obtain a hearing, "the defendant must make a sufficient threshold
showing that material facts were in doubt or dispute." United
States v. Colón-Muñoz, 318 F.3d 348, 358 (1st Cir. 2003) (citation
omitted). "When, for example, the motion is 'conclusively
refuted . . . by the files and records of the case,' an evidentiary
hearing would be supererogatory." Connolly, 504 F.3d at 219-20(alteration in original) (quoting United States v. Carbone, 880
F.2d 1500, 1502 (1st Cir. 1989)). It is standard practice to
resolve motions for evidentiary hearings based on affidavits, even
where "disputed matters of fact aris[e] from post-trial motions."
Id. at 220.
Based on the district court's "intricate web of
findings," Peake, 874 F.3d at 72, we see no abuse of discretion in
its decision that the defendants' claim regarding the suppressed
material did not merit an evidentiary hearing or an order to compel
any further production. Moreover, the information unearthed in
the supplementary proceeding below conclusively refutes the claim
that the government improperly withheld prejudicial Brady or
Giglio material from the defense.
On the limited remand, the government finally cleared
the air about the allegedly withheld Brady and Giglio material.
-73-
After reaching out to "all the federal law enforcement agencies
that had any contact with anyone involved in this case," the
government represented that the cooperating witnesses were "at no
time" confidential informants. In support, the government
submitted an affidavit from the FBI and statements from HSI and
the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF").
The ATF agent stated that an internal database search revealed
that none of the cooperating witnesses
had a signed confidential informant agreement with
ATF. One or all of these individuals may have
provided information to ATF but were ultimately not
utilized by ATF in a manner that would have required
them being registered as ATF confidential
informants. ATF policy does not require cooperating
defendants merely providing information to be
registered as such.
The FBI agent's affidavit stated that an internal search revealed
no record of any of the cooperating witnesses "ever having been
open as a [confidential informant], or having entered into any
cooperating agreement directly with the FBI." Nor did any of those
men receive any "one-time payments" or "any other financial
benefit." Lastly, an HSI agent stated that the department's
database of confidential informants did not contain any records of
the cooperating witnesses "ever being documented as HSI
confidential informants."
In terms of the relevant timeline, the government
asserted that the FBI opened its investigation into Ochoa in
-74-
August 2016, after the defendants' trial ended. It is clear from
the government's response that Marrero-Martell "never had any
involvement in the prosecution or investigation of Ochoa." Thus,
the government did not withhold any Brady or Giglio material with
respect to Marrero-Martell because in addition to not providing
any assistance in Ochoa's case, he was not a confidential
informant. Pérez-Colón, on the other hand, did cooperate with the
FBI in its investigation of Ochoa. According to the government,
his involvement dates back to November or December 2016, when Ochoa
smuggled several illegal cell phones into the federal prison in
Puerto Rico. Pérez-Colón allegedly received one of these phones
from Ochoa and gave it to Junior Cápsula. According to the
government, "[t]he FBI was aware of this" and confiscated the
phones. Pérez-Colón was released from prison on December 12, 2016.
Over a period of time from the day of his release until
December 27, 2016, Pérez-Colón "made consensual calls to Ochoa as
part of the ATF/FBI investigation into Ochoa" and allowed
investigators to download all of the data from these conversations
from his cellphone. The government provided the FBI's "302
Reports" (the FBI's official interview notes) to verify the nature
of Pérez-Colón's assistance. Nevertheless, the government
maintains that Pérez-Colón "was never paid any money for this from
any law enforcement agency, was not signed up as a confidential
-75-
source, and received no benefit for his assistance in the
investigation into Ochoa." Instead, it asserts that at this time,
Pérez-Colón was merely under "the same cooperation agreement
entered into evidence at trial in this case."
As the district court rightly concluded, the defendants'
attempts to refute the legitimacy of the government's proffer are
little more than speculative hypotheses. Chiefly, the defendants
contend that Pérez-Colón's involvement in the investigation of
Ochoa must have dated back at least to January 2016, seven months
prior to the trial. In support of this theory, they cite a
302 Report of an interview with an unnamed interviewee dated
October 28, 2016, in which the writing FBI agent notes that Ochoa
discussed smuggling contraband into a New York prison with the
interviewee nine months earlier.9 However, even if Pérez-Colón
were the unnamed interviewee, all that the report reflects is his
recollection of conversations with Ochoa that predated the
government's investigations.
9 The defendants also surmise that the investigation of Ochoa
must have begun prior to August 2016 because Pérez-Colón and Ochoa
allegedly spoke about the latter's vehicle days before a
confidential tip prompted a stop and search of Ochoa's vehicle,
which occurred either in July 2015 or July 2016. As proof, they
submit an untranslated police report that is erroneously dated
from both July 2015 and July 2016. However, this inconclusive
document is off-limits because it is untranslated. See
Estades-Negroni v. Assocs. Corp. of N. Am., 359 F.3d 1, 2 (1st
Cir. 2004).
-76-
The defendants suspect that Pérez-Colón must have had a
"tacit agreement" with law enforcement that predated their July
2016 trial because otherwise Pérez-Colón would not have assisted
by making the December 2016 phone calls. They also speculate that
because Ochoa had been on the government's radar for his corrupt
conduct since 2012, the government may have "purposefully placed"
Ochoa in prison with the cooperating witnesses to give them "the
opportunity to gather information and recruit him." These bald
assertions go nowhere. And despite the defendants' protestations
in reply that the government should have provided a much more
bounteous trove of information, the data provided was adequately
responsive to the defendants' original request as to whether the
cooperating witnesses had been confidential informants for the
government before, during, or after trial.
The bottom line is that Pérez-Colón's cooperation with
the FBI and ATF's investigation into Ochoa post-dated the
defendants' trial. See United States v. Jones, 399 F.3d 640, 647
(6th Cir. 2005) (noting that, where evidence discovered by a party
after remand for discovery on the issue of selective prosecution
"did not exist at the time of trial, it was not Brady material");
2 Fed. Prac. & Proc. Crim. § 256 (4th ed.) ("[E]xculpatory evidence
must exist at the time of trial to qualify as Brady material.").
If Pérez-Colón had not yet assisted with the Ochoa investigation
-77-
at the time of the defendants' trial, the government could not
have actually or constructively possessed the details of his
cooperation, let alone disclosed them to the defense. See United
States v. Perdomo, 929 F.2d 967, 970 (3d Cir. 1991) (stating that
the prosecution is obligated to produce only evidence that is
"actually or constructively in its possession or accessible to
it"); cf. Conley v. United Sates, 415 F.3d 183, 187 (1st Cir. 2005)
(finding a Brady violation where defendant "learned the
[g]overnment failed to disclose impeachment evidence, including
[an] FBI memorandum, in its possession prior to trial").
Even assuming that the Ochoa-related materials
catalogued by the district court on limited remand both fell within
the scope of the government's disclosure obligations and were
constructively within its possession, see United States v. Mathur,
624 F.3d 498, 504 (1st Cir. 2010) (citing Strickler, 527 U.S. at
280-81), their non-disclosure would not have been prejudicial to
the defendants. In other words, the newly discovered impeachment
evidence relating to Pérez-Colón's involvement in the Ochoa
investigation would not undermine our confidence in the integrity
of the verdict. See Kyles, 514 U.S. at 434. At best, the Ochoa-
related evidence would be cumulative impeachment evidence and thus
"immaterial under Brady [and Giglio]." Conley, 415 F.3d at 189;
see also id. ("Suppressed impeachment evidence, if cumulative of
-78-
similar impeachment evidence used at trial . . . is superfluous
and therefore has little, if any, probative value." (emphasis in
original)). Pérez-Colón received no additional benefit in
exchange for his assistance apart from that which he derived from
the very same cooperation agreement pursuant to which he testified
in the defendants' trial. All three cooperating witnesses
testified about the details of their cooperation agreements with
the government, which for Pérez-Colón entailed scores of
interviews with law enforcement as well as taking the stand in
several court proceedings related to drug trafficking
prosecutions. By the terms of his cooperation agreement, which
includes a general provision committing him to providing
information about criminal activity on an ongoing basis,
Pérez-Colón's assistance in the Ochoa investigation, without the
promise or receipt of any additional benefit, mirrors the
impeachment evidence that the defense already put forward through
its cross-examination of the witness. Thus, even if the
Ochoa-related materials did fall within the government's
disclosure obligations, the government would not have subverted
confidence in the jury's verdict by withholding them.
The six-page document listing the names of the potential
defendants against whom Junior Cápsula might testify adds nothing
to the mix in terms of our wholesale assessment of the potential
-79-
prejudice caused by the government's suppression of Brady or Giglio
material. Even assuming for the sake of argument that the
government improperly withheld the six-page document from the
defense, the fact remains that Junior Cápsula did not ultimately
testify in the trial and thus did not need to be impeached. The
defendants suggest that the list of people against whom Junior
Cápsula might testify was material to their case because it
supported their theory that the cooperating witnesses coordinated
their testimony out of loyalty to Junior Cápsula (and at the
expense of Torres-Estrada). But the defense had already elicited
testimony about the cooperating witnesses' alleged plan and Junior
Cápsula's plea and cooperation agreements. So any testimony
elicited about the list of people Junior Cápsula might testify
against would have been cumulative.10
IV. Conclusion
For the foregoing reasons, we vacate all four
defendants' convictions and remand for a new trial consistent with
our resolution of this appeal.
AFFIRMED IN PART, VACATED, AND REMANDED.
10Our holding does not prejudge either way whether any of the
evidence we assume to have been material in Part III of this
opinion should be admitted at any retrial.
-80-