United States v. Burgos-Montes ( 2015 )

United States Court of Appeals
For the First Circuit
No. 13-2305
UNITED STATES OF AMERICA,
Appellee,
v.
EDISON BURGOS-MONTES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Lynch, Chief Judge,
Howard and Kayatta, Circuit Judges.
Rachel Brill for appellant.
Francisco A. Besosa-Martínez, Assistant United States
Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States
Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney,
Chief, Appellate Division, were on brief, for appellee.
May 13, 2015
KAYATTA, Circuit Judge. Edison Burgos-Montes ("Burgos")
appeals from his conviction for two counts of drug conspiracy and
two counts of murder. The latter stem from the disappearance of
Burgos' girlfriend Madelin Semidey-Morales ("Semidey") shortly
after Burgos learned that she had been acting as a government
informant. Although the government sought the death penalty, the
jury sentenced Burgos to life in prison. Burgos now challenges his
conviction on a large number of grounds. For the reasons described
in this opinion, we affirm the district court in full.
I. Background
In this appeal, Burgos challenges the sufficiency of the
evidence supporting his conviction, the denial of several pre-trial
motions to suppress evidence, and a number of other district court
actions before and during trial. We typically recite those facts
relevant to sufficiency claims and challenges to a denial of a
motion to suppress in the light most favorable to the verdict or to
the district court's ruling. See United States v. Bayes, 210 F.3d
64, 65-66 (1st Cir. 2000) (sufficiency); United States v. Soares,
521 F.3d 117, 118 (1st Cir. 2008) (suppression). For other issues,
such as claims of prejudicial error, we offer a "balanced"
treatment, see United States v. Felton, 417 F.3d 97, 99 (1st Cir.
2005), in which we "objectively view the evidence of record."
United States v. Nelson-Rodríguez, 319 F.3d 12, 23 (1st Cir.
-2-
2003).1 Given that we cannot simultaneously recite the facts in
both manners, we limit our initial summary of this lengthy record
to those details essential to framing the issues on appeal. We
then offer the key facts relevant to each issue as part of our
discussion of that issue, recited in the appropriate form. We do
the same for the standard of review for each issue.
In October 2004, Semidey agreed to work with agents of
the federal Drug Enforcement Administration ("DEA") to inform on
Burgos. Semidey had begun dating Burgos while her husband was in
jail, and she continued to do so after her husband was released.
Over the next nine months, Semidey moved in with Burgos and
provided information to the DEA, arranged a meeting in which
undercover officers negotiated a cocaine sale with Burgos (although
1
In doing so, we note that this circuit has been inconsistent
in its approach to reciting the facts of the case when considering
a challenge other than the sufficiency of the evidence to support
a conviction. See United States v. Rodríguez-Soler, 773 F.3d 289,
290 (1st Cir. 2014) (discussing the inconsistency). Generally,
though, the nature of the question on appeal and the applicable
standard of review should make self-evident whether an appellate
court should present the record largely in equipoise (for example,
when it is assessing how an added or omitted item may have tipped
the balance, see Felton, 417 F.3d at 99), or present the evidence
as if the factfinder favored the prosecution's side of any factual
disputes (to ascertain, for example, whether the evidence was
sufficient to sustain the conviction, see United States v. Ayala-
García, 574 F.3d 5, 8 (1st Cir. 2009)), or assume that the jury
could well have been persuaded by the defendant's side of such
disputes (to ascertain, for example, whether the failure to submit
an element of the offense to the jury requires reversal in the
absence of any objection to the failure, see United States v.
Georgacarakos, 988 F.2d 1289, 1294-97 (1st Cir. 1993), abrogated on
other grounds by United States v. Scott, 270 F.3d 30, 35 (1st Cir.
2001)).
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the sale was never consummated), and recorded conversations between
herself and Burgos. In these conversations, Burgos described,
among other things, techniques for importing cocaine from the
Dominican Republic to Puerto Rico, and the prices he generally
charged for kilogram-quantities of cocaine. According to trial
testimony, sometime around June 2005, one of Burgos' employees told
Burgos that Semidey was an informant, a claim that Burgos
investigated and confirmed. Semidey also told her handlers
(according to her handlers) that Burgos had threatened to kill her
over this rumor, and suggested that if she ever disappeared, agents
should look for her body on a "farm" that Burgos owned. On July 4,
2005, Semidey disappeared after telling her handler that she had
returned to Burgos' house. A witness at trial testified that she
last saw Semidey getting into Burgos' car on the night Semidey
disappeared. Two days later, law enforcement agents observed
Burgos supervising an employee as the employee cleaned the inside
of Burgos' car during a rainstorm.
After efforts to locate Semidey proved unsuccessful, DEA
agents sought and received the authorization to wiretap Burgos'
cell phone in September 2005. In December, DEA agents also
recruited a co-conspirator named Neftalí Corales-Casiano
("Corales") to work as an informant. He recorded a number of
telephone calls between himself and Burgos between December 20 and
28. Most incriminating was a December 28 conversation in which
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Corales said he was concerned that Semidey's body would be found,
to which Burgos replied, "It won't appear." On December 29, the
government sought and received authorization to search Burgos'
farm, as well as the car that agents had observed Burgos having an
employee clean two days after Semidey disappeared. The search of
the car revealed traces of blood that DNA analysis suggested was
Semidey's. Semidey never reappeared, and her body was never found.
In January 2006, Burgos was indicted for conspiring to
import and conspiring to possess with intent to distribute
controlled substances in violation of 21 U.S.C. §§ 846, 841(a),
963, and 952. The indictment described a conspiracy lasting from
1998 to 2005, and described a number of acts in furtherance of the
conspiracy that took place primarily between January and June 2005,
including discussions with unindicted co-conspirators about
arrangements to purchase between one and ten kilograms of cocaine,
and stealing a boat. A May 2006 superseding indictment added two
murder counts, stemming from Semidey's disappearance. The
indictment charged that Burgos had murdered Semidey to prevent her
from communicating with law enforcement and to retaliate against
her for communicating with law enforcement in violation of 18
U.S.C. §§ 1512(a)(1)(A) and (C), and 1513(a)(1)(B).2 The
2
The indictment also included a forfeiture count that is not
at issue in this appeal.
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government also notified Burgos that it would seek the death
penalty.
In the lead-up to trial, Burgos filed a number of motions
seeking to strike the death penalty, all of which were denied. He
also filed numerous motions to suppress evidence. Although the
district court granted some of his motions to suppress, it denied
both a motion to suppress the evidence obtained through the
wiretap, United States v. Burgos Montes, No. 06-009-01(JAG), 2010
WL 5184844, at *13 (D.P.R. Dec. 20, 2010), and a motion to suppress
evidence from the search of Burgos' car and farm. United States v.
Burgos Montes, No. Crim. 06-009 JAG, 2011 WL 1743420, at *1 (D.P.R.
May 2, 2011).
After hearing thirty days of evidence, the jury convicted
Burgos on all four counts. During the penalty phase of the trial,
Burgos raised allegations of possible juror bias. The district
court held an in camera meeting with the juror in the presence of
counsel and determined that there was no bias, so the juror
returned to the box and the penalty phase continued. On the basis
of this episode, Burgos filed a motion for acquittal or new trial.
He also moved for acquittal or new trial on the basis that the
evidence fell short of the minimum sufficient to convict.3 The
3
Burgos argued that there was insufficient evidence that
Burgos intended to kill Semidey because she was an informant, as
opposed to for some other reason. He also argued that the evidence
presented at trial constituted a fatal variance from that charged
in the indictment. The latter argument was also the basis of a
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court denied both motions in a sealed order. Because the jury
could not reach a unanimous verdict on the death penalty, Burgos
was sentenced to life imprisonment.
Burgos filed a timely notice of appeal challenging: (1)
the denial of the motion to suppress evidence from the wiretap, (2)
the denial of the motion to suppress evidence from the search of
the car and farm, (3) the denial of the motion for acquittal or new
trial on the basis of alleged jury bias, (4) the denial of the
motions to strike the death penalty, (5) the denial of the motions
to acquit or for a new trial based on the sufficiency of the
evidence, and (6) various evidentiary rulings.
II. Analysis
A. Motion To Suppress Wiretap Evidence
Burgos challenges the district court's denial, after an
evidentiary hearing, of his motion to suppress a number of
conversations recorded through a wiretap of his cell phone after
Semidey disappeared. The wiretap was authorized under Title III of
the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.
§§ 2510-22, which imposes a set of statutory requirements on top of
the constitutional requirements applicable to ordinary search
warrants. See United States v. Nelson-Rodríguez, 319 F.3d 12, 32
(1st Cir. 2003). Burgos advances four primary challenges to the
wiretap, which we address in turn.
mistrial motion that the district court denied in open court.
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1. "Omitted" Information About Semidey
Burgos' first argument is that in the affidavit in
support of their wiretap application, the DEA agents omitted
information about Semidey that, had it been included, would have
precluded a finding of probable cause under the Fourth Amendment of
the United States Constitution. In assessing such an argument
(assuming the omitted information was intentionally or recklessly
withheld), we ask whether the application, had it contained the
omitted information, would still have provided a "sufficient" basis
for authorizing the wiretap.4 United States v. Young, 877 F.2d
1099, 1102-03 (1st Cir. 1989) (citing Franks v. Delaware, 438 U.S.
154, 171-72 (1978)).
The government's application for authorization to conduct
a thirty-day wiretap of Burgos' cell phone was supported by a
thirty-seven-page affidavit filed by DEA Agent Jacobsen, with the
participation of Agent Iglesias, who was the lead agent on the
case. The affidavit described the investigation as being led by
the DEA and involving the FBI, the Puerto Rico Police Department,
and two Puerto Rico investigative units, the Hacienda and the NIE.
4
Young used several terms to describe the standard it was
applying to the reformed affidavit, including "adequate,"
"sufficient," and whether the omissions were "material" to a
finding of probable cause. 877 F.2d at 1102-04 There is nothing
to suggest the court intended the terms to convey different
meanings; indeed, its reliance on Franks makes clear it was
applying a sufficiency standard. Franks, 438 U.S. at 171-72
(asking whether a reformed affidavit contained "sufficient content
. . . to support a finding of probable cause").
-8-
In addition to Burgos, one of the five targeted individuals was
Corales, whom the affidavit described as a former police officer
who was fired for corruption allegations in 1997, and who had
multiple felony arrests and convictions between 1995 and 1998.
The evidence supporting the affidavit consisted of
information from three confidential sources, including Semidey
(through her reports submitted prior to her disappearance). The
first two sources described the activities of named individuals
believed to be lower-level members of a drug trafficking conspiracy
that brought cocaine into Puerto Rico from the Dominican Republic.
The evidence connecting Burgos to drug trafficking came from or
through Semidey. According to the affidavit, she described
conversations in which Burgos said he could procure large amounts
of cocaine. She also helped arrange a meeting between Burgos and
undercover officers, which was recorded, and in which the officers
arranged a cocaine purchase. Toll registers confirmed that Burgos
was in contact with the people that Semidey said he called to
discuss the planned sale to the officers. Burgos never delivered
any drugs, however.
The application also described Semidey's statements that
Burgos suspected the undercover officers were officers and that he
had confronted her with a rumor that she was cooperating.
According to the affidavit, Burgos threatened to make her
"disappear from the earth." It also described Semidey's
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disappearance on July 4, 2005, and agents' observations of Burgos
supervising as an employee "rigorously" washed the interior of
Burgos' car during a rainstorm on July 6.
The affidavit described Semidey as a paid informant who
was cooperating for personal reasons. It then described her
observations of Burgos' drug activities, her role in helping to
arrange a failed buy-bust, the fact that Burgos had threatened her,
and her disappearance. "Omitted" from the affidavit were the facts
that Semidey was in a relationship with Burgos, that she was
married to another man who had been released from prison shortly
before she agreed to inform on Burgos, and that she may have been
trying to avoid prosecution on unrelated charges.5
Nothing in these omitted facts materially undercuts the
affidavit's ample demonstration of probable cause. The omitted
information furnishes, at best, grist for a somewhat conjectural
and by no means strong argument that one might make to discredit
Semidey. None of this grist is so probative as to make its
omission particularly notable. See Young, 877 F.2d at 1103 ("The
law does not require an officer swearing out an affidavit for a
warrant to include all possible impeachment material. It need only
explain that the officer has found the informant to be reasonably
reliable."). We note, too, that key portions of Semidey's
5
While there was trial testimony by Semidey's mother and
sister that Semidey agreed to be an informant to avoid possible
prosecution in another matter, the DEA agents involved denied this.
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statements in the affidavit were corroborated within the affidavit
itself. The affidavit reflects that after Semidey introduced
Burgos to undercover agents, Burgos himself spoke with undercover
agents on at least three occasions regarding a potential cocaine
sale. Moreover, toll records corroborated Semidey's descriptions
of Burgos' telephone communications about this potential sale.
In sum, even had the affidavit included the omitted
information, the affidavit would easily have contained a sufficient
basis for concluding that a wiretap would produce evidence that
Burgos was involved in a drug conspiracy or murder. Burgos'
challenge to the wiretap based on this "omission" of information
concerning Semidey therefore fails.6 Young, 877 F.2d at 1102.
2. "Omitted" Information About Corales
Burgos' next argument trains on the so-called "necessity"
requirement of 18 U.S.C. § 2518(1)(c). This subsection provides
that wiretaps are generally only available when the government
shows with a "full and complete statement . . . whether or not
other investigative procedures have been tried and failed or why
they reasonably appear to be unlikely to succeed if tried or to be
too dangerous." Id.
6
Our conclusion that the affidavit contained a sufficient
basis to establish probable cause for the wiretap at the time of
the Title III application also disposes of Burgos' argument that
the information contained in the affidavit was "stale."
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According to Burgos, the affidavit's claim that a wiretap
was necessary was deficient because it did not provide "full and
complete" information about Corales. Specifically, Burgos argues
that the affidavit did not give any indication that Corales had
sometimes worked as an informant and could potentially be used as
one in this investigation. Burgos argues that a wiretap could not
have been necessary until the government first tried to use Corales
as an informant.
In considering a claim that improperly omitted facts
undermine the necessity of a wiretap, we use a similar approach to
that which we use to assess a claim that such omissions undermine
probable cause: we ask whether, had the omitted information been
included, there would still have been a "minimally adequate" basis
for determining that the wiretap was necessary.7 See United States
v. Cartagena, 593 F.3d 104, 109-11 (1st Cir. 2010).
The answer to this question is "yes." The affidavit
explained why normal investigative techniques were not expected to
yield results. In particular, agents had twice tried and failed to
arrange a buy-bust, and using other informants was dangerous, given
what appeared to have happened to Semidey. That explanation
provides more than adequate support for a conclusion that the
exigencies did not warrant further delay in order to try to recruit
7
We do not read the "minimally adequate" standard to differ
substantively from the sufficiency standard applied to a challenge
that omissions undermine probable cause. See footnote 4, supra.
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yet another confidential informant, much less for what appeared to
be an exceedingly dangerous mission. See 18 U.S.C. § 2518(1)(c)
(recognizing that some investigative techniques may be "too
dangerous"). Whether Corales could have been recruited as an
informant (or even the fact that he later acquired his own reasons
to volunteer as an informant, as discussed in footnote 10 of this
opinion) is therefore beside the point.
3. Sealing Of The Wiretap Recordings
We now turn to Burgos' argument that the wiretap
application failed to comply with certain procedural requirements
under 18 U.S.C. § 2518(8)(a). That subsection provides that
"[i]mmediately upon the expiration of the period of the order"
authorizing a wiretap, "such recordings shall be made available to
the judge issuing such order and sealed under his directions." Id.
It further provides that "[t]he presence of the seal provided for
by this subsection, or a satisfactory explanation for the absence
thereof" is a prerequisite for any use of the evidence. Id.
Burgos makes two arguments: (1) that the records were
not sealed "immediately," because the government ended the wiretap
on September 30 but the recordings were not sealed until October 7,
and (2) that they were not sealed by the same judge who had issued
the order. The government does not dispute these deviations from
the statutory requirements. It argues, however, that because it
has offered a "satisfactory explanation" for the late sealing, and
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because the use of a different judge is immaterial, the recordings
need not be suppressed. After an evidentiary hearing to consider
the issue of sealing, the district court denied Burgos' motion to
suppress the wiretap evidence on these grounds. Burgos Montes,
2010 WL 5184844, at *5-8.
Before turning to the substance, we must first address
the threshold issue of the proper standard of review. Neither
party points us to a standard of review for the question of whether
the government's explanation for the absence of a seal that
complies with the requirements of section 2518(8)(a) is
"satisfactory." It appears that this circuit has never expressly
articulated one. Other circuits are split, with some employing a
clearly erroneous standard, see, e.g., United States v. Coney, 407
F.3d 871, 874 (7th Cir. 2005), and others applying plenary review
to the question of whether the explanation is satisfactory, even
though subsidiary factual questions are reviewed for clear error,
see, e.g., United States v. Sawyers, 963 F.2d 157, 159 (8th Cir.
1992). In United States v. Mora, 821 F.2d 860, 869-70 (1st Cir.
1987), which articulated the factors that define a "satisfactory
explanation" in this circuit, we accepted the district court's
supported subsidiary factual findings, but applied de novo review
to whether those facts were satisfactory under the newly announced
test. We will follow in those footsteps.
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In assessing the ramifications of an untimely sealing,
Mora established that the key inquiry was whether the government
had proven "by clear and convincing evidence that the integrity of
the tapes ha[d] not been compromised." Id. at 867. Sealing helps
ensure and demonstrate a lack of tampering. To the extent that
there is any delay in sealing, the field may open more widely for
the defendant to question and explore what happened to the records
pre-sealing.
Here, the district court concluded that Iglesias was
credible in his testimony that the "recordings were kept in a
manner that sufficiently excludes the possibility of tampering,"
and noted that Burgos had not even argued that they had been
tampered with. Burgos Montes, 2010 WL 5184844, at *7. On appeal,
Burgos again offers no allegations of tampering. While the burden
of proof is on the government, this does not mean the government
must prove a negative when the defendant does not even allege that
tampering has taken place. Burgos also does not offer any facts
speaking to the other factors in Mora, particularly indications of
bad faith by law enforcement personnel or prejudice to him--his
argument simply turns on the bare fact that seven days is not
"immediately." However, in Mora itself, the court found that
delays of twenty and forty-one days, while concerning, did not
automatically require suppression in light of the other factors.
Id. at 869. We conclude the same here regarding the seven-day
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delay, given the lack of any evidence of tampering or other
possible prejudice, and the lack of evidence of bad faith.
We can also quickly dispense with Burgos' objection to
the sealing of the recordings by a judge other than the one who
approved the wiretap. When Iglesias took the recordings to the
issuing judge, he was told that the judge was unavailable and was
sent to a different judge, who sealed them. Burgos cites no case
where recordings have been suppressed under such circumstances.
Few cases have addressed the issue at all, although the Second
Circuit has suggested in dictum that when the issuing judge's
unavailability would result in a delay, sealing by a non-issuing
judge is permissible. United States v. Poeta, 455 F.2d 117, 122
(2d Cir. 1972). As a purely textual matter, the agents appear to
have complied with the statute in that they "made [the recordings]
available to the [issuing] judge" and followed her "direction[]" to
take them to a different judge for sealing. Thus, this argument
also fails.
4. Miscellaneous Shots At The Warrant
Burgos lobs a number of other arguments at the substance
of the affidavit, none of which give us significant pause. He
argues that the affidavit was not full and complete because some
statements were too vague, and because it includes a one-sentence
disclaimer that the affidavit included only information relevant to
the wiretap application and not all of the information from the
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entire investigation. These arguments fail on the grounds that an
affidavit need not include the "minutiae" of an investigation. See
Cartagena, 593 F.3d at 110; see also United States v. Yeje-Cabrera,
430 F.3d 1, 9-10 (1st Cir. 2005).
Burgos also complains that the affidavit's authorization
to include individuals "yet unknown" violates the requirement that
the application include "the identity of the person, if known,
committing the offense and whose communications are to be
intercepted." 18 U.S.C. § 2518(1)(b)(iv). He argues that the
government knew the names of certain other individuals that would
eventually be recorded and failed to include them. In United
States v. Donovan, 429 U.S. 413 (1977), the Court held that this
requirement to identify individuals extends to those whose
conversations the government has probable cause to believe would be
intercepted. Although it is typically the unnamed individuals who
challenge a wiretap under such circumstances, see id. at 428; see
also United States v. Chiarizio, 525 F.2d 289, 291-93 (2d Cir.
1975), we will assume without deciding that a named individual can
also bring such a challenge because it does not affect the outcome
here.8 Nevertheless, Burgos offers no facts establishing that the
8
While this would make little sense in the Fourth Amendment
context, where the named individual would be asserting the unnamed
individual's rights, in this context the named individual is
claiming that his conversations were recorded pursuant to a
statutorily deficient wiretap, even though it is difficult to see
how the deficiency could be prejudicial.
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government had probable cause to believe that the other individuals
would be intercepted on the targeted telephone, so this argument
also fails.
B. Motion To Suppress Evidence From Burgos' Car And Farm
Burgos next challenges on a number of grounds the denial
of his motion to suppress evidence seized from his car and farm
pursuant to a search warrant. As with the wiretap warrant, Burgos
argues that the application for the warrant was deficient because
of omissions and inaccuracies in the application. In considering
such a challenge, our approach is similar to the one we used with
regard to the wiretap: "we excise the offending inaccuracies and
insert the facts recklessly omitted, and then determine whether or
not the 'corrected' warrant affidavit would establish probable
cause." Burke v. Town of Walpole, 405 F.3d 66, 82 (1st Cir. 2005)
(quoting Wilson v. Russo, 212 F.3d 781, 789 (3d Cir. 2000)).9
Burgos also argues that the application did not satisfy the
"particularity" requirement of the Fourth Amendment. In reviewing
the denial of a motion to suppress based on such a claim, we review
the district court's fact-finding for clear error, and conclusions
of law de novo. United States v. Kuc, 737 F.3d 129, 132 (1st Cir.
2013).
9
While the rule applies to omissions made with intentional or
reckless disregard for the truth, see Burke, 405 F.3d at 81-82, we
need not decide whether or not the omissions here were reckless or
intentional, because either way, they do not undermine probable
cause.
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1. "Omitted" Information About Corales and Semidey
A warrant application must include sufficient information
to establish probable cause both that a crime has been committed,
and that evidence of the crime will be found in the place to be
searched. United States v. Hicks, 575 F.3d 130, 136 (1st Cir.
2009). Burgos argues that the application for the warrant was
deficient because it omitted material information undermining the
credibility of Semidey and Corales, whose statements comprised much
of the information in the affidavit. Burgos again argues that the
affidavit did not explain the nature of Semidey's relationship with
Burgos or her potential motivations for serving as an informant,
nor the fact that Corales was a disgraced former cop with a history
of perjury and multiple felony convictions.
The affidavit provided the following as a basis for
probable cause:
• Semidey's statements to a DEA agent that Burgos had
confronted her with a rumor that she was an informant,
and had threatened to kill her;
• Semidey's statements that if she ever disappeared, law
enforcement should look for her on Burgos' farm;
• Observations of Burgos having an employee "rigorously"
wash the interior of his car in the rain two days after
Semidey disappeared and shortly after the police
contacted him with questions about Semidey;
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• High call volume from Burgos' phone to Semidey's that
stopped the night of her disappearance, followed by a
single call to her number after the police contacted him
about her disappearance;
• Visual observations by Iglesias of "what appeared to be
a newly turned area of earth in the approximate
dimensions of a grave" on the farm;
• A recording of a call between Burgos and co-conspirator
Radamés Castillo-Martinez ("Castillo") in which Castillo
said he was concerned that something might have happened
to Burgos because of "this girl";
• Statements by Corales and Castillo that Burgos knew
Semidey was an informant;
• Several statements by Corales, identified in the
affidavit as "CS #2," recounting conversations in which
Burgos said he was not concerned to hear that co-
conspirator Castillo had been arrested because he was
confident that the police were not going to find Semidey;
that the DEA would have arrested him by then if it could;
and that he didn't understand how Semidey could have
"cause[d] damage" to him after he had paid her bills and
her children's living expenses;10
10
Corales volunteered to serve as an informant in December
2005, after he learned that co-conspirator Castillo had been
arrested on charges related to their preparations to import cocaine
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• A conversation between Corales and Burgos in which Burgos
said that Semidey's body "won't appear" and that "[t]hey
can look for her in Yauco, Ponce, and Mayaguez and
they're not going to find her." In the conversation,
Burgos and Corales also made plans to bury a stolen boat
on the farm. (This conversation was recorded, although
the affidavit does not make that clear.);
• Corales' statement that he believed Semidey may be buried
on the farm.
This evidence clearly suffices to establish probable
cause, even considering the affidavit in light of the omitted
information about Semidey and Corales. In particular, the
credibility of Semidey's statements that Burgos had threatened her
are not undercut by the kind of information that might cast doubt
on her credibility with regard to Burgos' drug activities. When
informant Jane reports that target John threatened to kill her
because John learned that Jane is an informant, and Jane then
disappears after last being seen getting into John's car, after
which John is seen washing the car in a rainstorm, it almost goes
without saying that there exists probable cause to conduct further
investigations into John no matter what one thinks about Jane's
motives for serving as an informant. See United States v. Hibbard,
963 F.2d 1100, 1101-02 (8th Cir. 1992) (upholding a warrant
from the Dominican Republic.
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authorizing the search of defendant's residence for the whereabouts
of a missing person based entirely on the fact that the defendant
had threatened the victim and that the victim was last seen in the
defendant's presence). Whatever additional corroboration such
statements might need is amply provided for by the recorded
conversation between Burgos and Corales in which Burgos stated that
Semidey was not going to appear. In short, nothing in the omitted
evidence cast any material doubt on Semidey's statements relevant
to the warrant application.
As for Corales, the corroborating information not
dependent on his credibility is sufficient to establish a nexus to
the car and the farm. The search of the car was based primarily on
agents' observations of Burgos having the car's interior washed in
the rain two days after Semidey disappeared, and shortly after law
enforcement went to Burgos house to attempt to question him. As
for the farm, the affidavit established a nexus based on Semidey's
statements that law enforcement should look for her body on the
farm if she disappeared, as well as the recorded conversation in
which Burgos and Corales agreed to bury a boat on the farm. Thus,
even considering the affidavit in light of Corales' potential
unreliability, there is a sufficient basis for probable cause.
2. Other Probable Cause Arguments
Burgos makes several other arguments for why the warrant
failed to establish probable cause. First, he points to certain
-22-
inaccuracies in the warrant's description of events. In
particular, he argues that Iglesias' trial testimony regarding his
observations of disturbed earth on the farm appear to vary from his
description in the affidavit. As discussed above, however,
probable cause existed even without the observation of the
disturbed earth, so we need not delve into this argument. As for
the car, Burgos attempts to build a probable cause challenge based
on the fact that the affidavit described Burgos washing the inside
of his vehicle with an employee, while testimony in the suppression
hearing made clear that Burgos was actually supervising the
employee and did not participate in the washing himself. Burgos
argues that having a third party wash the car is inconsistent with
an attempt to remove evidence of a crime, where one would expect
great secrecy. However, the description of the car-washing in the
affidavit does indicate that a third party, who seemed to be
Burgos' employee, was involved, so this minor difference in how
Iglesias described the event is not material.
Finally, Burgos makes a staleness argument based on the
passage of time between Semidey's disappearance in July 2005 and
the government's application for a search warrant in December,
after Corales agreed to cooperate. Burgos argues that even if
there was probable cause to believe that there had once been
evidence in the car, the affidavit did not include any reason to
believe that it would have still remained six months later. An
-23-
allegation of staleness is evaluated not merely on how old the
information is, but circumstances including the nature of the
suspected crime, the character of the items to be seized, the
habits of the suspect, and the nature of the premises to be
searched. United States v. Bucuvalas, 970 F.2d 937, 940 (1st Cir.
1992), abrogated on other grounds by Cleveland v. United States,
531 U.S. 12, 18 (2000). Burgos cites no case where evidence was
suppressed on the basis of a failure to state the common-sense
notions that bodies often stay where they are disposed of, and that
DNA evidence can last longer than six months, and we decline to
announce such a rule here--particularly given that the passage of
time without Semidey's reappearance made foul play appear
increasingly more likely.
3. Particularity
Burgos next argues that the search warrant violates the
Constitutional requirement that a warrant must "particularly
describ[e] . . . [the] things to be seized." U.S. Const. amend.
IV. The warrant authorizes a search for "[e]vidence and trace
evidence relevant to the homicide of Madelin Semidey-Morales in
violation of Title 18, United States Code, Section 1513. See also
the attached affidavit, which is hereby incorporated and made part
hereof." Burgos argues that "evidence and trace evidence" is
insufficiently particular, and that the failure to define the kind
of "trace evidence" sought was particularly egregious because
-24-
Iglesias admitted that he used the broad term precisely to avoid
limiting the forensic analysis.
Although federal courts do not generally uphold warrants
authorizing the search for "evidence of crime X" unless that
statement follows a list of illustrative examples, see United
States v. Bithoney, 631 F.2d 1, 2-3 & n.1 (1st Cir. 1980), Burgos'
argument fails because the warrant incorporates by reference the
affidavit, which describes the target of the search as "the person,
or remains, of Madelin Semidey-Morales, evidence of the manner of
her death and her personal effects." Affidavit language expressly
incorporated by the warrant can satisfy the particularity
requirement. See Rivera Rodríguez v. Beninato, 469 F.3d 1, 5 (1st
Cir. 2006); cf. Groh v. Ramirez, 540 U.S. 551, 557-58 (2004)
(collecting circuit cases allowing incorporation by reference and
leaving open the possibility of incorporation). While there still
exists some generality in terms like "evidence of the manner of her
death" and "her personal effects," this is a situation in which the
"circumstances of the crime make an exact description of the fruits
and instrumentalities a virtual impossibility." United States v.
Timpani, 665 F.2d 1, 5 (1st Cir. 1981) (quoting Spinelli v. United
States, 382 F.2d 871, 886 (8th Cir. 1967)). In such cases, "the
searching officer can only be expected to describe the generic
class of items he is seeking." Id. (quoting Spinelli, 382 F.2d at
886).
-25-
4. Compliance With Rule 41(e)
Burgos next attacks the warrant on the grounds that the
issuing magistrate failed to fill in two of the spaces on the pre-
printed warrant form: one for the date by which the warrant was to
be executed, and one for the judge to whom the warrant should be
returned. (The space on the form for the return date is followed
by the parenthetical "not to exceed 10 days.") Burgos argues that
these omissions violate Federal Rule of Criminal Procedure
41(e)(2)(A) (2009), which required the warrant to "command the
officer . . . to execute the warrant within a specified time not
longer than 10 days" and to "return the warrant to the magistrate
judge designated in the warrant," and that such violation mandates
suppression.11
In United States v. Bonner, 808 F.2d 864 (1st Cir. 1986),
we considered a different subdivision of Rule 41, one providing
that officers must leave a copy of the warrant at the place to be
searched. See Fed. R. Crim. P. 41(f)(1)(c).12 We held that because
the subdivision is "ministerial," a violation does not require
suppression unless the defendant can demonstrate prejudice.
Bonner, 808 F.2d at 869. Prejudice means being "subjected to a
search that might not have occurred or would not have been so
11
In 2009, Congress amended Rule 41(e), increasing to 14 days
the time to execute the warrant.
12
At the time Bonner was decided, the subdivision was numbered
41(d).
-26-
abrasive" had the rules been followed. Id. (internal quotation
marks omitted). Other circuits have held the same applies to all
the prerequisites of Rule 41. See United States v. Schoenheit, 856
F.2d 74, 76-77 (8th Cir. 1988); United States v. Burke, 517 F.2d
377, 386-87 (2d Cir. 1975).
We have little trouble concluding that the prejudicial
error rule of Bonner should extend to the failure by the issuing
magistrate to define the time period of the search when the form
itself provides that the search is to be completed within the time
frame specified by the rule, and to the failure to designate a
magistrate to whom the form should be returned. "The exclusionary
rule should be limited to those situations where its remedial
objectives are best served, i.e., to deter illegal police conduct,
not mistakes by judges and magistrates." Bonner, 808 F.2d at 867
(citing United States v. Leon, 468 U.S. 897, 908, 916 (1984)).
Burgos does not suggest why he was prejudiced by the warrant's
technical failings. Absent a showing of prejudice, there is no
basis for suppressing the evidence.13
5. Fruit Of The Poisonous Tree
While serving as an informant, Semidey (against her
handlers' instructions) took a number of documents--including some
13
The warrant was executed in compliance with the 10-day
statutory maximum in effect at the time, and Burgos does not argue
it was not. The warrant was issued on December 29, 2005; the
search of the farm took place on December 30 and 31, 2005, and the
search of the car took place on January 5, 2006.
-27-
pertaining to the farm--from Burgos' residence. The physical
evidence of this unconstitutional search was suppressed. Burgos
now argues that any evidence from the farm should be suppressed as
the fruit of the poisonous tree. The district court denied the
motion to suppress on the grounds that a search of the farm was
inevitable. See United States v. Scott, 270 F.3d 30, 42-45 (1st
Cir. 2001) (explaining the inevitable discovery doctrine). On
appeal, Burgos argues in a single conclusory sentence that the
government has not met its burden of proving by a preponderance of
the evidence that the farm would have been discovered by lawful
means. He does not challenge the specific evidence from which the
district court concluded that discovery was inevitable: DEA
agents' conversations with Semidey and Corales, as well as an
instance where local police seized some stolen containers from the
property. This argument, even if not waived for perfunctory
briefing, see United States v. Zannino, 895 F.2d 1, 16 (1st Cir.
1990), fails in the face of the evidence found persuasive by the
district court.
C. Juror Bias
We now turn to Burgos' claim that the district court
abused its discretion when it first failed to hold an evidentiary
hearing to investigate allegations of juror bias, and then failed
to grant a new trial on account of that alleged bias, all in
violation of Burgos' Sixth Amendment right to a trial by impartial
-28-
jury. U.S. Const. amend. VI. This claim arises out of an incident
during the sentencing phase of trial in which a juror appeared to
slump in his chair when a man we will call Juan walked into the
room. Juan was married to one of the witnesses who testified for
the defense in the penalty phase. At the next break, Juan told
defense counsel that he was a second cousin of the juror (their
grandmothers were sisters). Defense counsel told the judge that
the juror was appearing to hide from Juan.
The judge held an in camera meeting in which he asked the
juror if he recognized anyone in the court room that day. The
juror said he had not recognized anyone "involved in the case," and
stressed that if he recognized anyone, he would speak up.14 The
district court asked several more times (e.g., "So far in the case,
you haven't recognized anybody?"). To each question, the juror
responded that he had not, and that "[i]f I . . . recognize
somebody, I will tell the Court. But I didn't." He also explained
that he slumped because he was uncomfortable, and that although he
had grown up the part of Puerto Rico where the events at issue had
taken place, he had moved away from his hometown more than two
decades before, and rarely returned to visit. The court also asked
specifically if he recognized the name "Juan," and the juror
responded that he did not.
14
"I'm telling the truth, if in any case I would recognize
anybody of the persons involved in the case, it would come from me
to tell the Court . . . . I haven't."
-29-
Satisfied with the juror's credibility, the district
court continued the penalty phase of the trial. Based on this
episode, Burgos filed a motion for acquittal or new trial and
requested an evidentiary hearing. His motion also raised the new
argument that a defense witness from the guilt phase was also
related to the juror (her father was the juror's mother's cousin).15
The district court denied this motion on the grounds that the juror
was credible when he said he didn't recognize anyone in the
proceedings, and that moreover there hadn't been even a suggestion
that he had recognized the witness during the guilt phase. Burgos
now appeals the denial of this motion.
Burgos can hardly complain now that the district court
failed to remove the juror. After all, the only jury finding made
after Burgos raised the issue favored Burgos by rejecting the death
penalty. So he must train his argument on a claim that the
district court abused its discretion by failing to grant a new
trial because of later-discovered bias relevant to the guilt phase.
All Burgos has to go on is his belated complaint that a witness he
himself had called was a distant cousin of the juror. Because the
district court took as credible the juror's statement that he did
not recognize anyone in the proceedings, Burgos instead makes an
argument based on implied bias: that either the bare fact of a
15
In the motion, Burgos also raised a number of even more
attenuated connections.
-30-
blood relationship, or the fact that the juror lied about the
existence of a blood relationship, is sufficient to imply bias as
a matter of law. See Amirault v. Fair, 968 F.2d 1404, 1406 (1st
Cir. 1992) (per curiam).
Neither argument prevails. First, the district court
concluded that the juror did not lie about not recognizing anyone
in the proceedings, and nothing suggests that finding was clearly
erroneous. See id. at 1405 (stating that a court's findings of
juror credibility merit "great deference"). As for the bare fact
that the juror and the witness were distant cousins, implied bias
requires "exceptional" or "extreme" circumstances, id. at 1406
(quoting Smith v. Phillips, 455 U.S. 209, 222 (1982) (O'Connor, J.,
concurring)), and we cannot conclude that the district court erred
in finding the situation fell well short of this mark, given that
the familial connections were so attenuated that no one during the
guilt phase seems to have even noticed that the witness and the
juror were distant cousins.
Burgos' alternative argument challenges the procedure
employed by the district court. He says that the court erred by
investigating the claim of juror bias through an in camera
discussion, rather than an evidentiary hearing. The case law
suggests otherwise. While a district court must make an "adequate
inquiry" into non-frivolous claims of juror bias or misconduct,
United States v. Ortiz-Arrigoitia, 996 F.2d 436, 442 (1st Cir.
-31-
1993), the district court has "broad discretion to determine the
type of investigation which must be mounted." United States v.
Boylan, 898 F.2d 230, 258 (1st Cir. 1990). The court "may, but
need not, convene a full-blown evidentiary hearing." Id. We
review the district court's determination of how to investigate
such claims for patent abuse of discretion. Id.
The district court certainly did not patently abuse that
broad discretion here. The relevant question is not whether the
juror was actually related to anyone in the proceedings; it is
whether such a relationship, if it exists, biased the juror against
the defendant. Indeed, the district court accepted that the juror
may have been related to the witness, but it credited the juror's
testimony that he did not recognize anyone, let alone harbor any
bias against the defendant as a result of that unrecognized
relationship with a witness for the defense. Thus, while an
evidentiary hearing could conceivably have proven the relationships
if they were at issue, they were not at issue. The district court
did not patently abuse its discretion.
D. Trial Before A Death-Qualified Jury
Prior to trial, Burgos filed a number of motions
challenging the government's decision to seek the death penalty.
The district court denied them all. Burgos was tried before a
death-qualified jury, and sentenced to life in prison. He now
argues that because he never should have faced the death penalty,
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his trial before a death-qualified jury violated his Sixth
Amendment rights.
For his argument that he never should have faced the
death penalty in the first place, Burgos simply incorporates by
reference his pre-trial motions, offering no arguments for why the
district court erred in dismissing those motions. Arguments
incorporated into a brief solely by reference to district court
filings are deemed waived. See Exec. Leasing Corp. v. Banco
Popular de P.R., 48 F.3d 66, 67-68 (1st Cir. 1995). As such,
Burgos has waived his argument that the district court erred when
it rejected his various motions to strike the death penalty.
Given a proper death penalty charge, it is well
established that using a death-qualified jury for the guilt phase
does not violate a defendant's Sixth Amendment rights. Buchanan v.
Kentucky, 483 U.S. 402, 414-16 (1987). Here, Burgos faced charges
of murdering Semidey to prevent her from, or in retaliation for,
communicating with law enforcement in violation of 18 U.S.C.
§§ 1512(a)(1)(A) and (C), and 1513(a)(1)(B), and the death penalty
is available for these violations as a matter of law. Id.
§§ 1111(b), 1512(a)(3)(A), 1513(a)(2)(A). Thus, there has been no
Sixth Amendment violation.
E. Sufficiency Of The Evidence
Burgos next appeals from the order denying his motion for
acquittal or new trial on the basis of insufficient evidence to
-33-
convict. This court reviews a denial of a Rule 29 motion for
acquittal based on insufficiency of the evidence de novo, examining
the evidence in the light most favorable to the verdict, United
States v. Troy, 583 F.3d 20, 24 (1st Cir. 2009), and asking whether
a rational jury could find guilt beyond a reasonable doubt, United
States v. Andujar, 49 F.3d 16, 20 (1st Cir. 1995). A district
court's denial of a motion for a new trial is reviewed for manifest
abuse of discretion. United States v. González-González, 136 F.3d
6, 12 (1st Cir. 1998).
Burgos argues that the government presented insufficient
evidence that he killed Semidey with the intent to prevent her
attendance or testimony in an official proceeding, 18 U.S.C.
§ 1512(a)(1)(A), to "prevent a communication about the commission
or possible commission of a federal offense to a federal law
enforcement officer," id. § 1512(a)(1)(C), or to "retaliate" for
providing such information, id. § 1513(a)(1)(B). As Burgos would
have it, the evidence at worst established two equally plausible
reasons for him to have killed Semidey: he killed her in a
domestic dispute because they had an argument three days before her
disappearance that, according to trial testimony, did not seem to
have anything to do with her being an informant,16 or he killed her
16
Semidey's mother testified that the fight began when Burgos
said he wouldn't sell a kilogram of cocaine to a certain person and
Semidey said she would have sold the drugs. Her mother then
responded affirmatively to defense counsel's characterizing the
fight as being about the fact that Burgos didn't like that Semidey
-34-
because of her informing. Alternatively, he says that it was
equally plausible that another member of the conspiracy killed her.
We agree with the district court that these other
theories were not equally plausible. The jury heard testimony that
Burgos tried several times to confirm whether or not Semidey was an
informant, that he concluded that she was, and that he had
threatened to kill her and "make her disappear from the face of the
earth" if he ever found out that she was cooperating with the
government. The jury heard, too, evidence of Burgos' drug-related
activities and Semidey's knowledge of those activities, providing
him with ample motive to make sure she never testified against him.
If Burgos was merely unhappy with his non-marital relationship, he
had numerous options for ending that relationship. If he was
unhappy because Semidey was a government informant clearly
possessed of knowledge sufficient to convict him, he had fewer
reliable options available to him other than murder, or so the jury
could reasonably have concluded.
F. Prejudicial Variance
Burgos then argues that the evidence presented at trial
regarding the duration of the drug conspiracy constituted a fatal
was "acting like a drug dealer." Agent Iglesias also testified
that Semidey told him that the fight had to do with Burgos'
reluctance to sell drugs to a certain person.
-35-
variance from that charged in the indictment.17 Burgos was charged
with one count of conspiracy to possess cocaine with intent to
distribute, and one of conspiracy to import cocaine, both of which
were charged to have extended from 1998 to 2005. Burgos argues
that because the only evidence of the conspiracy in the 1998-99
time frame came from Corales, who was in prison for six months
starting in 2001, and who also testified as a witness for the
government in an unrelated murder case, there could not have been
a continuous 1998-2005 conspiracy to import and distribute cocaine.
He argues that at best, the government has presented evidence of
two distinct conspiracies (a distribution conspiracy in 1998-99,
and a conspiracy to import and distribute in 2004-0518), creating
a fatal variance from the 1998-2005 conspiracy charged in the
indictment.
To determine whether a variance exists, we "review the
record to determine whether the evidence and reasonable inferences
therefrom, taken as a whole and in the light most favorable to the
prosecution, would allow a rational jury to determine beyond a
17
Burgos preserved this objection below through a mistrial
motion that the district court denied in open court.
18
Burgos' view of the events could arguably be characterized
as three or four conspiracies: separate importation and
distribution conspiracies in both 2004-05 and 1998-99, although as
we discuss below, he argues that there was no evidence of an
importation conspiracy in 1998-99. However, because his primary
complaint turns on two distinct periods of time, we follow his lead
in referring to only "two" conspiracies.
-36-
reasonable doubt that a single conspiracy existed." United States
v. Mangual-Santiago, 562 F.3d 411, 421 (1st Cir. 2009) (internal
quotation marks omitted). "Although conflicting inferences may
arise, so long as the evidence is adequate to permit a reasonable
trier of fact to have found a single conspiracy beyond a reasonable
doubt, the jury's finding will not be disturbed on appeal." Id.
Even if we find a variance, it "does not warrant reversal unless it
is prejudicial." United States v. Yelaun, 541 F.3d 415, 419 (1st
Cir. 2008). We review de novo the question of whether a variance
was prejudicial. United States v. Wihbey, 75 F.3d 761, 774 (1st
Cir. 1996).
The record contains sufficient evidence to support the
jury's finding that Burgos participated in a conspiracy from 1998
to 2005. Corales testified that he met Burgos in 1998. At the
time, both had their own drug points and were involved in unrelated
drug activities, although they knew people in common. After their
meeting, he and Burgos began selling each other kilogram-quantities
of cocaine. Corales went to jail, but only for six months in 2001,
during which time the two remained in contact (for example, Burgos
provided the ice cream for an inmate party Corales organized), and
when Corales was released, Burgos gave him a job in his
construction company. Sometime around 2003 or 2004, the two
developed the plan to import drugs from the Dominican Republic,
which only got as far as stealing a boat. When the government
-37-
asked whether the exchange of drugs between Corales and Burgos
lasted throughout their seven-year relationship (meaning 1998 to
2005), Corales answered in the affirmative.19
The government presented no evidence that other people
were involved in the conspiracy with Corales and Burgos until they
began planning to import drugs sometime around 2003 or 2004.
Thus, there is no evidence of a 1998-2005 conspiracy unless Corales
remained a member for the entire time. Burgos argues that the gap
in the government's evidence and the bare fact that Corales went to
prison means that the conspiracy ended in 1999 and re-started
several years later. A six-month hiatus, however, does not
necessarily mean the conspiracy ended. See United States v.
Alejandro-Montañez, 778 F.3d 352, 359-60 (1st Cir. 2015). Nor does
the imprisonment of conspiracy members necessarily require a
finding of withdrawal or abandonment. See Mangual-Santiago, 562
F.3d at 422-23.
Burgos points to two additional points that could suggest
Corales withdrew from the conspiracy: the fact that he gave up his
19
The exchange followed a discussion in which Corales was
unable to estimate how many kilograms of cocaine had changed hands
between him and Burgos during their relationship. It consists of:
Q: Well, is it fair to say that this relationship
went on for close to seven years?
A: Yes.
Q: And throughout that time period, were there
exchanges of drugs, either from you to him or from him to
you in kilo quantities of cocaine?
A: Yes.
-38-
own drug points; and the fact that in 1999 he agreed to testify for
the government in unrelated cases. (Although defense counsel
pushed Corales to admit he was "working for" or an "informant" for
the government, Corales insisted that all he agreed to do was show
up in court and testify.) On balance, though, while the evidence
could have allowed the jury to infer that Corales withdrew from the
conspiracy with Burgos and began a new conspiracy with Burgos out
of the blue around 2003, it is also sufficient to support an
inference that Corales never withdrew from the original conspiracy.
Thus, there is no variance.
G. Evidentiary Rulings
Finally, Burgos challenges a number of the district
court's evidentiary rulings, both individually and for their
cumulative impact. As a general matter, this circuit reviews
evidentiary rulings for abuse of discretion. Baker v. Dalkon
Shield Claimants Trust, 156 F.3d 248, 251-52 (1st Cir. 1998).
However, if the evidentiary ruling rests on an interpretation of
law, we review it de novo, with subsidiary fact-finding reviewed
for clear error. Id.
Even if a district court errs, such error does not
require reversal if it was harmless--i.e., if it can be said that
"'the judgment was not substantially swayed by the error.'" United
States v. Meserve, 271 F.3d 314, 329 (1st Cir. 2001) (quoting
Kotteakos v. United States, 328 U.S. 750, 765 (1946)). The
-39-
government generally bears the burden of persuasion on whether an
error was harmless, although an appellate court may also consider
sua sponte whether an error was harmless. United States v. Rose,
104 F.3d 1408, 1414-15 (1st Cir. 1997) (holding that a court may
hold that an error was harmless even if the government does not
make that argument, because of the seemingly mandatory text of Fed.
R. Crim. P. 52(a) and the policy interest in conserving judicial
resources).
For claims that an evidentiary ruling violated the Sixth
Amendment's Confrontation Clause, the error must be harmless beyond
a reasonable doubt. United States v. Cameron, 699 F.3d 621, 652
(1st Cir. 2012). Cumulative errors may merit a reversal if they
achieve a "critical mass" that "cast[s] a shadow upon the integrity
of the verdict." United States v. Sepulveda, 15 F.3d 1161, 1196
(1st Cir. 1993).
1. Semidey's Hearsay Statements
Burgos argues that the district court erred in admitting
Semidey's statements under the "forfeiture by wrongdoing" exception
to the rule against hearsay. Fed. R. Evid. 804(b)(6). That
exception allows the admission of hearsay statements "against a
party that wrongfully caused--or acquiesced in wrongfully causing--
the declarant's unavailability as a witness, and did so intending
that result." Id. We review for clear error the question of
whether the government has demonstrated that Burgos had the
-40-
requisite intent for this exception to apply. See Baker, 156 F.3d
at 252; see also United States v. Scott, 284 F.3d 758, 762 (7th
Cir. 2002) (question of whether Rule 804(b)(6) applies turns on
fact-finding). This circuit has not defined the standard of
evidence necessary to establish the requisite intent, although for
the closely analogous claim that a defendant has waived his Sixth
Amendment right to confront a potential witness by murdering that
witness, this circuit requires the government to prove waiver by a
preponderance of the evidence, see United States v. Houlihan, 92
F.3d 1271, 1280 (1st Cir. 1996), and the majority of circuits seem
to apply this standard to Rule 804(b)(6), see Davis v. Washington,
547 U.S. 813, 833 (2006). We do the same here.
Our finding that the evidence was sufficient to convict
Burgos of murdering Semidey to make sure she did not share further
her knowledge of his criminal activity readily disposes of this
evidentiary challenge. The only wrinkle Burgos seeks to introduce
is a claim that, for purposes of Rule 804(b)(6), the prosecution
must prove that charges had been filed at the time he killed
Semidey. This circuit has previously held that the analogous
exception to the Confrontation Clause applies to the murder of
witnesses in criminal investigations even before charges have been
brought. Houlihan, 92 F.3d at 1280. The reasoning of that case is
just as applicable here, as the rule that Burgos advocates would
simply create an incentive to "murder suspected [witnesses] sooner
-41-
rather than later." Id. Thus, the forfeiture-by-wrongdoing
exception is available for statements by a witness who was murdered
before charges were brought if it was "reasonably foreseeable that
the investigation [would] culminate in the bringing of charges."
Id. Here, the district court did not clearly err in concluding
that Burgos intended to prevent Semidey from testifying at a trial
that, had she continued working with the government, was reasonably
foreseeable to occur.
Burgos' attempt to rely on Giles v. California, 554 U.S.
353 (2008) is misplaced. That case merely established that
Rule 804(b)(6) and the analogous Confrontation Clause provision do
not apply without an intent to prevent testimony--i.e., the
exception is not available for statements by murder victims simply
because the defendant made them unavailable. Giles, 554 U.S. at
367-77. It did not announce a rule that the murder must actually
follow the filing of charges.
2. Hearsay References To Burgos Being Under Investigation
At trial, Burgos pursued lines of attack that made
relevant whether law enforcement had a preexisting investigation of
or interest in Burgos prior to Semidey becoming an informant. A
DEA supervisor therefore testified that he already knew Burgos as
a person of interest before Semidey came into his office. Two
other agents so agreed. None of the witnesses testified about what
-42-
it was that caused the agents to initially become suspicious of
Burgos.
Burgos now claims that all of this was somehow
inadmissable hearsay. We think not. Having placed at issue the
chronology of the investigation, Burgos can hardly complain that
the government put on direct witnesses who could say when they
started looking at Burgos. The fact that such testimony may have
implied that other persons told the agents something that caused
them to focus on Burgos hardly causes their first-hand, relevant
testimony concerning the investigation's status to become hearsay.
None of them even related the substance of what unnamed others may
have said, let alone offered it for its truth.20 See Fed. R. Evid.
801(c)(2).
3. Daubert Challenge To Testimony Of Dog Handlers
At trial, the government introduced the testimony of
several law enforcement officers that one of two so-called "cadaver
dogs" "alerted" when led by an area on Burgos' property where one
of the officers had identified a possible grave site approximately
six months before. Because no human remains were discovered, the
sole purpose of this testimony was to suggest that, because the dog
alerted, the jury could conclude that the location had, at one
point, concealed a human cadaver.
20
Semidey's husband's testimony that he had heard of the
investigation from the supervisor, even if it was hearsay, was
harmless because it was cumulative of the admissible testimony.
-43-
Burgos objected to this testimony on several grounds, in
particular that the testimony constituted, under Federal Rule of
Evidence 702, an expert opinion that the cadaver dog could reliably
locate a spot in which human remains had been buried, and that the
government had failed to lay a proper basis for its reliability
under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993). The district court nevertheless allowed the testimony, and
Burgos now challenges that ruling on appeal.
Upon reviewing the record, we tend to agree with Burgos
that the government did not lay out much of a case that a dog could
reliably identify a spot in which there had been (presumably months
earlier) a human cadaver, as opposed to simply responding to animal
remains or to the leash-holding handler's conscious or unconscious
cues. It is one thing to use a dog to identify a place in which
one might look to see if human remains are present. It is quite
another to use a dog to identify dirt that was once exposed to a
human cadaver. The prosecution witnesses offered virtually no
evidence that the scientific reliability of such a use had been
established, or that their investigation protocols were generally
accepted for such a use. Burgos' experts, in turn, provided easy-
to-follow testimony explaining numerous basic defects in the use of
the dogs for the purpose for which they were used here. They also
offered much common sense, noting, for example, that the officer
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using the dog on a leash that alerted was the officer who had
previously identified the suspected spot.
Ultimately, however, we need not determine whether the
admission of the testimony was an abuse of discretion because it is
plain that, for two reasons, any possible error was harmless.
First, the government presented a large amount of much more
compelling circumstantial evidence that Burgos was responsible for
Semidey's death. That evidence included testimony from Semidey's
brother-in-law that Burgos had repeatedly tried to confirm, and
then said he had confirmed, a rumor that Semidey was an informant;
testimony from Semidey's handlers that Semidey told them that
Burgos had threatened to make her disappear if he found out she was
working for the government; testimony from another witness that
Burgos had threatened to kill that witness if he told anyone that
Burgos knew that Semidey was an informant; testimony by Corales
that after Burgos learned that Semidey was an informant, Burgos had
asked Corales for a gun and said that Semidey was going to
disappear; and testimony that Semidey was last seen in Burgos' car.
The jury heard the recorded conversation between Corales and Burgos
in which Burgos said that Semidey would not be found. They also
heard testimony that Burgos had choked Semidey during a fight,
which--even if the fight did not have to do with Semidey being an
informant--demonstrated (assuming the jury found it credible) that
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Burgos was capable of violence. Finally, trace DNA evidence was
found in the trunk of Burgos' car.
It is no doubt true that Burgos offered evidence to the
contrary. Among other things, Burgos pointed out a number of
inconsistencies in the testimony of the DEA agents investigating
him; established that Corales' credibility is, to put it mildly,
questionable; and offered evidence that the suspicious car-washing
and the DNA evidence recovered from the trunk may have had innocent
explanations. On balance, though, we conclude that the evidence
other than the dog alert, while circumstantial, pointed quite
forcefully at Burgos.
Our second reason for this conclusion is that the
testimony about the dog alert carried very little incremental
probative force because its limitations would be almost certainly
apparent to any reasonable jury. Even though the dog handlers'
testimony was "scientific, technical, or other specialized
knowledge," see Fed. R. Evid. 702, it was at the non-technical end
of the spectrum. Indeed, the prosecution did not even propose it
as expert testimony, and the witnesses offered no technical or
jargon-laden support for their claims. The defense exposed the
limitations in the handlers' claims through easy-to-follow cross-
examination and persuasive testimony from an expert clearly more
knowledgeable on the matter than the officers. We expect the
jurors were well able to understand and evaluate these types of
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arguments that a dog may not be able to distinguish soil that once
contained a decomposed human from soil that once contained a
decomposed animal, or that a handler walking the dog on a leash
might cause the dog to alert. In short, the testimony about the
alert of a cadaver dog that found no cadaver added little to the
case.
This is not to say that the district court does not have
a responsibility to exercise its gatekeeper role under Rule 702
with regard to such testimony. Indeed, in other contexts in which
the government seeks to offer dog alerts as substantive evidence
(for example, of the presence of an accelerant in an arson case),
courts routinely test the reliability of such testimony under
Daubert. See, e.g., United States v. Marji, 158 F.3d 60, 62-63 (2d
Cir. 1998) (per curiam). It is, rather, to say that failure to
conduct such an analysis, assuming it is error, is more likely to
be harmless in a case such as this, in which the prosecution
witnesses cited no studies or reports to buttress their experience-
based observations, nor claimed any special scientific expertise,
and in which the defense gave the jury ample evidence from which to
judge for themselves whether a cadaver dog alert that revealed no
cadaver was anything more than a false alert.
4. Prior Bad Acts
At trial, the government introduced as evidence a number
of recordings that Semidey had made of conversations with Burgos.
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One of those recordings reveals Burgos' involvement with drug
trafficking in a time frame that supports the prosecution's claim
that Burgos had been involved in such activity for a long time. A
portion of that recording also includes a statement that, as part
of that drug trafficking conspiracy, he had served as a lookout for
a murder.
Burgos objected to the evidence on two grounds: (1) that
the government failed to comply with Fed. R. Evid. 404(b)(2), which
requires that, upon request, the government must give notice of the
evidence of prior bad acts that it seeks to offer; and (2) that the
evidence was in any event inadmissible as propensity evidence
prohibited by Fed. R. Evid. 404(b). The district court allowed the
recording to be played, but also instructed the jury that the
statements about the murder may be false and should be ignored.21
We begin with the notice issue. The wrinkle in Burgos'
argument is that the government had provided the recordings to
defense several years before trial. What it did not do was
specifically call attention to the fact that they contained
Rule 404(b) material, even though the defense sent an e-mail
21
The district court instructed the jury as follows: "These
statements by Mr. Burgos are uncorroborated and, as I mentioned to
you before lunch, for all we know he may have been huffing and
puffing to impress his girlfriend. Okay? You must not consider
the statements regarding those incidents for the truth of those
events. In other words, you must not take those things as proof
that the events actually occurred or that Mr. Burgos was in any way
involved in them, neither may you hold them against Mr. Burgos in
any other manner."
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specifically requesting such information. We do not reject the
distinct possibility that a large bulk production may well be,
without more, deficient notice. However, we need not decide
whether it is so here, because even if the notice was deficient,
the error was harmless.
Burgos makes no argument at all that the lack of clear
notice caused him any prejudice at all. Indeed, he does not even
argue that his counsel did not know beforehand that the government
would seek to play the recordings. We also have not identified for
ourselves any way that the defense strategy was hampered by lack of
specific notice, and therefore conclude that the lack of specific
notice was harmless.22
That leaves the question of whether the evidence was
admissible on its merits. On that question, Burgos argues both
that the district court erred in determining the evidence to be
admissible as offered for something other than propensity, and that
the admission of the evidence was not harmless. On the question of
admissibility, our review is for abuse of discretion. United
States v. Rivera-Rivera, 477 F.3d 17, 20 (1st Cir. 2007).
22
Burgos offers two cases that he argues stand for the
proposition that the failure to provide notice of Rule 404(b)
evidence cannot be harmless. Both involve surprise testimony that
hampered the defense strategy in identifiable ways. United States
v. Carrasco, 381 F.3d 1237, 1240-41 (11th Cir. 2004) (undermining
a defense based on a lack of intent); United States v. Vega, 188
F.3d 1150, 1155 (9th Cir. 1999) (surprise witness prevented defense
from preparing for cross-examination on the prior acts).
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We cannot find that the district court abused its
discretion in allowing the recording as evidence relevant to an
issue other than propensity. Although the government offered the
recording for purposes of dating the conspiracy, the district court
also stated that it was admissible as evidence of "motive" or
"opportunity." The recording confirms in Burgos' own voice that he
told Semidey things to which he would certainly not want her to
testify. That fact was relevant to his motive to kill her. And it
also corroborated her general claim that he confided in her in that
matter. To the extent that the evidence might nevertheless have
been excluded as unfairly prejudicial under Rule 403, given that
the government had presented other evidence of Burgos' motive, the
trial court's limiting instruction to the jury tilted the balance
enough to trigger our deference to such a balancing.
5. Cell Phone Records
Semidey owned and used a cell phone. Her
telecommunications carrier was a company named Centennial, which
has since been acquired by AT&T Puerto Rico. In the regular course
of its business, Centennial maintained in its computer files data
for each call made by each user, including Semidey. The data
included the phone numbers dialed on Semidey's phone or from which
it received calls; the dates, times, and durations of the calls;
whether each call was incoming or outgoing; and the particular cell
tower that connected the phone to the network during the call.
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During trial, the government introduced as an exhibit a
print-out of Centennial's data concerning Semidey's phone's
activity on various dates. The government also introduced a record
maintained by Centennial showing the locations of its cell towers,
including those cell towers to which its records show Semidey's
phone connected on the pertinent dates. Centennial's records were
accompanied by a certification of the custody of Centennial's
records in compliance with Fed. R. Evid. 803(6)(D) and 902(11).
The government also presented testimony from a Centennial employee
describing Centennial's record-keeping practices and explaining the
data in the actual exhibits. The employee who testified was not
the same employee who had queried Centennial's database to compile
the print-out used at trial.
Burgos raised below (in connection with a motion in
limine and a voir dire examination of the Centennial witness) and
now presses on appeal three objections to the cell phone records.
First, Burgos contends that because the print-out of
Semidey's phone records "was a highly specific document prepared
pursuant to a request from law enforcement, containing only
information requested by the agency," it did not qualify as an
exception to the hearsay rule under Fed. R. Evid. 803(6)(B) and
(D). That exception applies to documents "kept in the course of a
regularly conducted activity of a business," and for which "making
the record was a regular practice of that activity." Id. Burgos
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devotes one sentence to this contention in a 127-page brief and
cites no precedent.
Burgos' complaint about the Centennial exhibits could
apply to virtually any print-out of data stored in computerized
business records. This circuit has previously held that exhibits
showing selected data pulled from records that a company keeps in
the ordinary course of business fall under the business records
exception, even if the physical exhibits themselves were made to
comply with a request from law enforcement. United States v.
Cameron, 699 F.3d 621, 641-42 (1st Cir. 2012) (holding that
exhibits showing internet providers' records of when the defendant
logged in and out of his account and the IP address from which he
had logged in fell into the business records exception even though
the exhibits themselves were created in response to a search
warrant). Other circuits have directly held that phone records
fall into the business records exception. See, e.g., United States
v. Yeley-Davis, 632 F.3d 673, 678-79 (10th Cir. 2011); United
States v. Green, 396 F. App'x. 573, 575 (11th Cir. 2010) (per
curiam). We see no reason to disagree here.
Burgos argues, second, that the admission of the records
"failed the Confrontation Clause standard set in Melendez-Diaz v.
Massachusetts, 557 U.S. 305, 325 (2009)." Why this is so, Burgos
does not explain. Melendez-Diaz held that business records,
although not usually testimonial for purposes of triggering the
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Confrontation Clause, may be testimonial if the regularly conducted
business activity is the creation of evidence for trial, such as
analyzing substances at a forensic lab. See id. at 321-24. In
this case, however, the exhibits contained no data or analysis
created for trial. Rather, they were simply print-outs of data
created and stored by Centennial in the course of running a phone
company.
Again, Cameron is instructive. There, even though the
court concluded that records the company made in the regular course
of providing internet service were not testimonial for purposes of
triggering the Confrontation Clause, it held that records of the
company's reports to a child pornography tip line were. It
reasoned that even though company employees made such reports as
part of the regular course of business, the purpose of reviewing
and reporting suspected child pornography was to facilitate law
enforcement.23 Id. at 647-48. "[T]o create each Report, someone
at Yahoo! analyzed Yahoo!'s data, drew conclusions from that data,
and then made an entirely new statement [the tip line Report]
reflecting those conclusions. . . . This means that someone at
Yahoo! analyzed Yahoo!'s business records and concluded that (1) a
crime had likely been committed and (2) a particular user likely
committed that crime." Id.
23
Because the records triggered the Confrontation Clause, the
court did not analyze whether they satisfied the business records
exception.
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Here, Centennial responded to a request for data that it
had previously gathered and maintained for its own business
purposes. The fact that the print-out of this data in this
particular format was requested for the litigation does not turn
the data contained in the print-out into information created for
litigation. Rather, the physical manner in which the exhibit was
generated simply reflects the fact that the business records were
electronic, and hence their production required some choice and
offered some flexibility in printing out only the requested
information. See, e.g., Yeley-Davis, 632 F.3d at 678-79.
Third, Burgos challenges a statement by the Centennial
witness that Semidey's phone was "in or around" the cell tower
listed as connecting the phone during a call. She then expanded on
this statement by responding in the affirmative when the government
asked whether the cell tower that connected the call "was closest
to the cell phone being used" when the call was initiated. Burgos
argues that the witness was not qualified under Fed. R. Evid. 702
to offer testimony on the technical matter of how cell phone calls
are routed through a company's towers. It does seem that the
witness's responses exceeded her knowledge--nothing on the exhibit
indicated that the connecting cell tower was always the closest
cell tower, and the witness explained on voir dire that she did not
have the knowledge or expertise to opine that the connecting cell
tower was actually closer than any other cell tower.
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However, we conclude that the witness's gloss was of no
apparent material affect. The prosecution used the evidence to
argue that Semidey must not have had her phone on July 2, shortly
before she disappeared: testimony established that at around eight
o'clock in the morning she was in Guánica, but the connecting tower
for a call received at 7:50 a.m. was in Levittown, more than sixty
miles away on the other side of the island. (This, in turn, lent
indirect support to testimony by Semidey's brother-in-law that
Burgos said that he had confirmed Semidey was an informant because
he had her phone, and had seen that she had used it to call the
DEA.) Whether or not a phone necessarily connects to the "closest"
tower, any juror could have easily concluded that a cell phone
would not be sixty miles away from its connecting tower. The
custodian's assertion that the connecting tower is the one closest
to the phone was of no significance at all in that context.
Moreover, it is not even clear who the records helped
most. Burgos' counsel chose to avoid cross-examining the
Centennial witness in front of the jury, and then used the exhibits
in closing to make several exculpatory points, one of which
involved the location of the phone. While this approach did not
waive Burgos' objection to the exhibits, it does support our
conclusion that the Centennial witness's opinion about which tower
a phone connects to did not do real damage to Burgos' defense, and
may even have helped it.
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6. Bolstering DNA Evidence With Hearsay
At trial, the government introduced DNA evidence that
traces of Semidey's blood were found in Burgos' car. Burgos raised
a number of concerns about the analyst's methodology. The
government was allowed to elicit testimony that the department
protocol was to have each analyst's work reviewed by a second
analyst, and if they disagreed, then a third analyst was called.
It also elicited testimony that a third analyst was not called in
this case. Burgos argues that this constitutes de facto testimony
by the second analyst that he was in agreement with the first.
Burgos argues that this violates the Confrontation Clause under
Melendez-Diaz, 557 U.S. at 310-11, because Burgos was unable to
cross-examine the second analyst.
Burgos points to no case prohibiting the introduction of
testimony that internal review protocols had been followed unless
the reviewer is available to testify. We again have difficulty
identifying this non-statement as hearsay, and also note that such
a rule would create a disincentive to this sort of internal control
mechanisms in forensic investigations. As such, we decline to
announce such a rule, and hold that if there was error, any error
was harmless beyond a reasonable doubt because Burgos had ample
opportunity to cross-examine the primary analyst.
Because we have disposed of several issues on harmless
error grounds, we have also considered whether all such possible
-56-
errors cumulatively were harmless. We find that they were, given
how tangential the challenged evidence in question was, as compared
to the strong body of plainly admissible evidence supporting the
verdict.
III. Conclusion
For the reasons stated above, we affirm.
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