United States v. Gomez-Vera

United States Court of Appeals
For the First Circuit
Volume I of II
No. 01-1647
UNITED STATES OF AMERICA,
Appellee,
v.
José Rodriguez-Marrero,
Defendant, Appellant.
No. 02-1462
UNITED STATES OF AMERICA,
Appellee,
v.
Omar F. Genao-Sanchez,
Defendant, Appellant.
No. 02-1707
UNITED STATES OF AMERICA,
Appellee,
v.
Luis Roldan-Cortes,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José A. Fusté, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lipez, Circuit Judge.
Lydia Lizarribar-Masini for appellant Omar Genao-Sanchez.
Raymond L. Sanchez Maceira on brief for appellant José
Rodriguez-Marrero.
Linda George for appellant Luis Roldan-Cortes.
Thomas F. Klumper, Assistant United States Attorney, with whom
H.S. Garcia, United States Attorney, and Sonia I. Torres, Assistant
United States Attorney, were on brief for appellee.
November 5, 2004
LIPEZ, Circuit Judge. The three defendants in this drug
conspiracy case played key roles in a smuggling ring that imported
large amounts of cocaine and marijuana into Puerto Rico between
1992 and 1996. After a trial that spanned nearly four weeks and
involved more than forty witnesses for the government, a jury found
each defendant guilty of a series of crimes, including the drug
conspiracy and aiding and abetting murder. The district court
sentenced each defendant to multiple life sentences.
The defendants raise a number of challenges to their
convictions. In the end, we find that one challenge is meritorious
-- the argument of Omar Genao-Sanchez that the district court erred
in admitting testimonial hearsay against him in violation of the
recent Supreme Court decision in Crawford v. Washington, 124 S. Ct.
1354 (2004), a case decided after the completion of this trial.
Although we affirm Genao-Sanchez's drug conspiracy conviction, we
conclude that the erroneous admission of the hearsay testimony was
not harmless with respect to his convictions for conspiracy to
commit murder and for aiding and abetting murder. Accordingly, we
vacate those convictions. We affirm the convictions and sentences
of the other defendants.
I.
We present facts here in the light most favorable to the
verdict to convey the background of the case. See United States v.
Reeder, 170 F.3d 93, 97 (1st Cir. 1999). We will provide
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additional facts where they are pertinent to the legal analysis of
specific issues.
A. The Conspiracy
As noted, the defendants were members of a drug
conspiracy that smuggled large amounts of cocaine and marijuana
from South America into southwestern Puerto Rico for itself and
other organizations. The drugs were dropped from airplanes at sea
and retrieved by the defendants or transferred directly by boat
from the defendants' foreign suppliers. The conspirators used a
broad array of radios, global positioning system (GPS) receivers,
night vision glasses, police scanners, modified cellphones and
powerful speedboats to protect their shipments. They also
stationed lookouts at various points on the water and near an
airport used by the United States Customs Service to protect the
loads from raids by law enforcement and rival drug gangs.
After the defendants brought the drugs on shore, the
drugs were shipped by truck either to a secure storage location
(frequently one of the conspirators' farms) or directly to the
individual or organization who had hired the defendants. The
individual conspirators received cash or a portion of the drug
shipment as payment for their participation, and they distributed
the drugs they received to local dealers at drug points throughout
the area.
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B. The Co-Conspirators
Raul Santodomingo-Romero ("Santodomingo") led the drug
organization until he was arrested on money laundering charges in
1994; his second-in-command, Victor M. Valle-Lassalle, a/k/a
"Manolo" ("Valle-Lassalle"), then took over.1 Defendant-appellant
Luis Roldan-Cortes, a/k/a "Wisi" ("Roldan"), was Valle-Lassalle's
right hand man and the godfather to his daughter. The two owned a
drug distribution point, giving them the exclusive right to
distribute drugs in the Ducos housing project in Aguadilla.
Although Valle-Lassalle eventually ended this partnership because
he thought that Roldan was unfairly excluding him from some of the
side deals that Roldan was arranging, they continued to cooperate
together in their smuggling venture. Roldan negotiated at least
one drug shipment in the Dominican Republic and participated in the
execution of a number of others. His specific responsibilities
included loading and unloading and captaining the drug boats,
coordinating "security" for the shipments, and inventorying and
selling drugs to small distributors. He also helped to arrange the
murder of a government informant, James Martin-Rodriguez, a/k/a
"Kiri" ("Martin"), who was a member of the conspiracy until he
began cooperating with federal investigators.
1
We have included a roster of individuals important for an
understanding of this case in the Appendix to this opinion. We
refer to the individuals in this case according to the naming
scheme that was adopted by the government in its brief.
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Defendant-appellant Omar Genao-Sanchez, a/k/a "Omi"
("Genao"), was a drug courier for one of the conspirators, David
Rafael Ramos-Rivera, a/k/a "Pecas" ("Ramos"), when he (Genao) was
sixteen years old. He later became a member of the conspiracy
himself after meeting the other members at Santodomingo's farm.
Genao attended meetings at which Valle-Lassalle negotiated drug
shipments, helped to bring loads to shore, and, according to the
government, participated in the murder of Carlos Roberto Rodriguez
Torres, a/k/a "Robert Caballo" ("Caballo"). Although Caballo was
an active member of the conspiracy, having participated in
smuggling operations, Valle-Lassalle decided to kill him when
Caballo threatened to tell members of a Colombian drug cartel that
Valle-Lassalle had stolen cocaine from them.
José Rodriguez-Marrero, a/k/a "Zurdo" ("Rodriguez"), the
last of the three appellants, joined the conspiracy when Valle-
Lassalle offered to let him participate in some drug shipments if
he helped to murder Edward Llaurador Rodriguez ("Llaurador"),
another co-conspirator turned government informant. Although the
government did not introduce evidence that Rodriguez participated
in any shipments, its witnesses testified that Rodriguez was
present when Valle-Lassalle negotiated shipments and that he would
have participated in two shipments if the police had not
forestalled them. The first of these shipments was supposed to be
a two thousand pound load of cocaine that Valle-Lassalle negotiated
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in May 1997 with another smuggler, Angela Ayala. This shipment was
canceled when Ayala was arrested. The second involved six hundred
kilograms of cocaine that were supposed to have been smuggled on
behalf of another smuggler, Henry Pamias, a/k/a "Macho from Cataño"
("Pamias"). That shipment was canceled because Valle-Lassalle was
arrested on weapons charges.
Javier E. Soto-Alarcon, a/k/a "Chester" ("Soto"), was a
mid-level leader in the conspiracy who joined the drug gang after
he started dating Valle-Lassalle's sister. Soto participated in a
number of drug loads and in Llaurador's murder. After Soto's wife
(he had since ended his relationship with Valle-Lassalle's sister)
was shot in a drug-related attack, Soto decided to turn himself in
to the authorities. He agreed to cooperate with the government,
allowing it to record his conversations, helping government agents
to infiltrate the organization, and testifying against the others
at trial.
Ramos was a member of the conspiracy before he was
arrested and decided to become a government informant. He helped
to smuggle a number of large loads of marijuana and cocaine and
sold some of the cocaine at a drug point in the Montana housing
project in Aguadilla. He also participated in Martin's murder.
Other members of the drug conspiracy included José
Hernandez-Jimenez, a/k/a "Chelo" ("Hernandez"), who was murdered by
a rival drug gang, and Nicholas Peña Gonzalez ("Peña") and Anibal
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Pagan-Cerezo, a/k/a "El Cojo" ("Pagan"), who were indicted along
with the defendants here and pled guilty.
C. Murders Undertaken in Furtherance of the Conspiracy
The drug gang protected its distribution empire with
force, killing or seriously wounding suspected informants and rival
gang members. Three of those murders played important roles in the
conspiracy trial because they were charged as substantive crimes
and as overt acts in furtherance of the drug conspiracy.
1. Martin's Murder
On November 16, 1992, Martin was arrested with fifteen
bales of cocaine belonging to the drug ring. This was the second
time that he was arrested for a drug crime, and he agreed to
cooperate with the United States Customs Service. Suspecting that
Martin had become an informant, Santodomingo and Valle-Lassalle
decided to have him murdered in a parking lot at the Ducos housing
project. On May 20, 1993, after receiving a phone call from Roldan
alerting him to Martin's arrival at the scene, Santodomingo dropped
Ramos off at the housing project, where Ramos joined Roldan and
Pagan. Roldan identified Martin as the intended murder victim, and
told Ramos and Pagan that Martin was at the housing project that
day because he was expecting to pick up some money owed to him for
drugs. Martin approached the group, and Ramos and Pagan walked off
to a corner of the parking lot. After speaking with Roldan for a
short while, Martin walked back to his automobile. As he was about
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to put the keys in the door, Pagan walked up and shot him three
times. Ramos then joined the attack, and the two shot Martin until
Pagan ran out of bullets. The coroner's report stated that Martin
had seventeen bullet wounds in his body.
2. Caballo's Murder
In February, 1996, five members of the drug organization
stole approximately thirty kilograms of cocaine that they were
smuggling into Puerto Rico on behalf of a Colombian drug operation.
Believing that Caballo had threatened to inform the Colombians
about the theft, Valle-Lassalle arranged to have him killed.
According to the government, Genao and another member of the drug
ring, Nicholas Peña Gonzalez, picked Caballo up at his house on
July 15, 1996, with help from Llaurador. Peña shot Caballo in a
remote area near Yauco, Puerto Rico. The group then threw
Caballo's body in the back of his truck. They planned to drive the
truck to Valle-Lassalle's farm to dismember and dispose of the body
(and to disassemble the truck) when the truck became stuck in a
muddy ditch and they were forced to abandon it on the side of the
road. As they were abandoning the truck, Caballo tried to get up
and asked Peña why he shot him. Peña answered, "Because you're a
mother fucker," and shot him two more times. The police found the
truck and Caballo's body the next morning.
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3. Llaurador's Murder
Later that month, Llaurador told local authorities in
Ponce about Caballo's murder, and provided sworn statements to the
prosecutor regarding the murder on July 31 and September 13 of that
year (1996). He also became a confidential informant for the
federal Drug Enforcement Administration ("DEA") on September 3,
1996. The local police arrested Genao and Valle-Lassalle for
Caballo's murder based on Llaurador's statements. They issued a
warrant for Peña's arrest, but he fled before they could apprehend
him. The criminal complaint, which was given to both Genao and
Valle-Lassalle when they were arrested, identified Llaurador as an
informant.
Valle-Lassalle was released on bail subsequent to his
arrest. Having seen Llaurador's name on the criminal complaint,
Valle-Lassalle knew that Llaurador had “snitched" to the police
about Caballo's murder. Telling Soto that Llaurador would likely
"snitch" on all of them, he recruited Soto, Rodriguez, and two
other members of the conspiracy to find Llaurador and murder him.
The men found him on October 13, 1996 and bound him with wire.
Rodriguez proceeded to behead Llaurador with a machete while he was
still alive. They dismembered his body, placed the various parts
in plastic garbage bags, and threw the bags over a cliff at an
abandoned dump site. Valle-Lassalle watched the murder and told
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his co-conspirators that if they told anyone about it, they would
meet the same fate. He promised to repay Rodriguez for murdering
Llaurador by allowing him to participate in one of the upcoming
smuggling operations.
D. Arrests and District Court Proceedings
On December 17, 1997, the government unsealed a two count
indictment against Genao, Rodriguez, Valle-Lassalle, Peña, and four
others. Roldan was not charged in that initial indictment. The
government obtained a twelve count second superseding indictment on
July 6, 2000 against Genao, Rodriguez, Valle-Lassalle, Peña,
Roldan, Pagan, and six others.2 The twelve defendants were charged
with: (1) conspiracy to possess with the intent to distribute more
than five kilograms of cocaine and multi-hundred pound quantities
of marijuana; (2) conspiracy to commit firearms murder in relation
to a drug trafficking offense (Caballo); (3) aiding and abetting
firearms murder in relation to a drug trafficking offense
(Caballo); (4) aiding and abetting the murder of a witness or
informant (Llaurador); (5) aiding and abetting murder while
2
The government had previously obtained a six count first
superseding indictment on July 15, 1998, charging Valle-Lassalle,
Rodriguez, Peña, Genao, Pamias, Santodomingo, and four others with
conspiracy to possess with intent to distribute more than five
kilograms of cocaine and multi-hundred pound quantities of
marijuana; conspiracy to commit firearms murder in relation to a
drug trafficking offense (Caballo); firearms murder in relation to
a drug trafficking offense (Caballo); murder of a witness or
informant (Llaurador); murder while engaging in a drug trafficking
offense (Llaurador); and witness tampering.
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engaging in a drug trafficking offense (Llaurador); (6) witness
tampering (Soto); (7) aiding and abetting firearms murder in
relation to a drug trafficking offense (Martin); (8) aiding and
abetting the murder of a witness or informant (Martin); (9) aiding
and abetting murder while engaging in a drug trafficking offense
(Martin); (10) aiding and abetting solicitation of a crime of
violence; (11) misprision of felony; and (12) possession with
intent to distribute in excess of five kilograms of cocaine. The
appellants here were charged as follows:
Count Summary Appellant(s)
1 The drug conspiracy Genao, Rodriguez,
and Roldan
2 Conspiracy to commit firearms murder Genao
in furtherance of a drug crime
(Caballo)
3 Aiding and abetting firearms murder Genao
in furtherance of a drug crime
(Caballo)
4 Aiding and abetting murder of a Rodriguez
witness (Llaurador)
5 Aiding and abetting murder in Rodriguez
furtherance of a drug crime
(Llaurador)
7 Aiding and abetting firearms murder Roldan
in furtherance of a drug crime
(Martin)
8 Aiding and abetting murder of a Roldan
witness (Martin)
9 Aiding and abetting murder while Roldan
engaging in a drug crime (Martin)
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After having been arraigned on the first indictment on
December 22, 1997, Rodriguez was arraigned on the second
superseding indictment on July 18, 2000. Similarly, Genao was
arraigned on the first superseding indictment on December 27, 1999
and the second on July 20, 2000. Roldan was only indicted once, on
July 18, 2000. The government certified the defendants as being
eligible for the death penalty shortly after their arraignment and
maintained that position until the day before the trial was
scheduled to begin.
E. The Trial
Of the twelve indicted defendants, only the three
appellants here pled not guilty and proceeded to trial. The trial
began on September 7, 2000. Roldan's and Genao's attorneys
repeatedly informed the court on the first day of trial that they
were unprepared to try the case, and both requested continuances.
The court denied their motions.
The government presented testimony from more than forty
witnesses, including Commonwealth investigators, police officers,
federal agents, eyewitnesses, and technical experts. The core of
its case was built by two co-conspirators and cooperating
witnesses, Soto and Ramos, each of whom testified for the greater
part of a week. Soto began his testimony with a detailed first-
hand account of Llaurador's murder, highlighting Rodriguez's
participation in the killing and Valle-Lassalle's promise to reward
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Rodriguez for his participation. Soto then recounted how he joined
the conspiracy and the manner in which he met each of the co-
conspirators. The first time that he visited a farm owned by
Valle-Lassalle, he helped to inventory six to seven thousand pounds
of marijuana. He also described the planning and execution of the
organization's narcotics shipments and the roles played by Genao,
Rodriguez, and Roldan. He provided the details regarding a seven
hundred kilogram load of cocaine that the group smuggled in May or
June 1994, and discussed a trip that he took to Ayala's house in
the summer of 1997 with Valle-Lassalle, Rodriguez, and Hernandez to
negotiate a shipment of two thousand kilograms of cocaine. Valle-
Lassalle negotiated with Ayala while Rodriguez and Hernandez
listened to music and played pool. Ayala was arrested before that
shipment could take place, but Valle-Lassalle negotiated another
shipment later that summer. The second shipment was interrupted
when Valle-Lassalle was arrested on Commonwealth weapons charges
stemming from a shootout that he had with members of a rival drug
gang. Soto also briefly recounted Valle-Lassalle's explanation of
Caballo's murder. Finally, he described how he became a government
informant and the terms of his plea agreement.
Ramos began his testimony by providing a first-person
account of Martin's murder. He then named some of the key members
of the conspiracy, explained how he knew them, and described their
roles in the organization. He provided details on a number of the
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cocaine and marijuana shipments that he helped to smuggle. These
included a six to seven thousand pound shipment of marijuana in the
summer of 1993, which Roldan helped to inventory; six hundred
kilogram shipments in late December 1993 and late December 1994,
which Roldan helped to transport; a nine hundred to one thousand
kilogram shipment in the fall of 1995 on behalf of Ayala, which
Genao helped to transport; and a shipment of cocaine in February
1996, which Genao also helped to transport. Caballo later learned
that Valle-Lassalle had stolen thirty kilograms of cocaine from
this shipment. Ramos described his unsuccessful efforts to prevent
Valle-Lassalle from killing Caballo to cover up that theft and
essentially repeated Genao's description of Caballo's murder. He
noted that after Genao was arrested for Caballo's murder, Genao
wrote to him requesting a loan for bail money. Ramos forwarded
that request to Valle-Lassalle who instructed Ramos to tell Genao
not to worry because he would be out soon. Nine days later,
Llaurador -- the chief witness against Genao in the murder case --
was killed, and Genao was released for lack of evidence. Valle-
Lassalle told Ramos that "he had taken care of the problem because
the guy who was snitching had been killed."
Ramos also testified about the methods of drug
distribution that he employed. He managed the drug point in the
Montana housing project and sold the drugs that he bought or
received as payment from Valle-Lassalle. He said that he
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frequently used Genao as a courier to pick up drugs for Ramos to
sell. Finally, Ramos testified that he was arrested for attempting
to introduce drugs into the country on August 24, 1998. He pled
guilty and began cooperating in approximately April 1999.
On October 10, 2000, the jury convicted the three
defendants on all counts. On March 28, 2001, the district court
sentenced Rodriguez to two life sentences for his two murder
convictions, aiding and abetting murder of a witness (Llaurador)
and aiding and abetting murder in furtherance of a drug crime
(Llaurador). See U.S.S.G. § 2A1.1, cmt. 1 ("The Commission has
concluded that in the absence of capital punishment, life
imprisonment is the appropriate punishment for premeditated
killing."). The court applied the murder cross reference to his
drug conspiracy conviction to sentence him to life in prison on
that conviction as well. See U.S.S.G. § 2D1.1(d)(1) (instructing
courts to apply the first degree murder sentencing guideline when
considering the appropriate sentencing range for a drug conviction
if a victim was killed under circumstances that would constitute
murder under 18 U.S.C. § 1111); see United States v.
Reyes-Echevarria, 345 F.3d 1, 6 (1st Cir. 2003) (upholding the
sentencing court's application of the murder cross reference to the
defendant's drug conspiracy conviction after the sentencing judge
concluded by a preponderance of the evidence that the defendant had
murdered a rival drug dealer).
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On March 18, 2002, the court sentenced Genao to two life
sentences for his two murder convictions, conspiracy to commit
firearms murder in furtherance of a drug crime (Caballo) and aiding
and abetting firearms murder in furtherance of a drug crime
(Caballo), and applied the murder cross reference to his drug
conspiracy conviction, sentencing him to a total of three life
sentences. On the same day, the court sentenced Roldan to three
life sentences for his three murder convictions, aiding and
abetting firearms murder in furtherance of a drug crime (Martin),
aiding and abetting murder of a witness (Martin), and aiding and
abetting murder while engaging in a drug crime (Martin). It also
applied the murder cross reference to Roldan's drug conspiracy
conviction, resulting in a total of four life sentences. Genao and
Roldan filed multiple motions for new trials based on newly-
discovered evidence, which the district court denied.
II.
A. Rodriguez's Claims
1. Specificity of the Indictment
Arguing that count four of the second superseding
indictment (murder of a witness) did not provide sufficient details
regarding the federal nexus of Llaurador's murder, Rodriguez argues
that his conviction should be vacated. The Federal Rules of
Criminal Procedure generally require defendants to raise objections
to indictments prior to trial. See Fed. R. Crim. P. 12(b)(3)(B)
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(stating that "a motion alleging a defect in the indictment or
information" "must be raised before trial"). Failure to do so
constitutes waiver. See Fed. R. Crim. P. 12(e) ("A party waives
any Rule 12(b)(3) defense, objection, or request not raised by the
deadline the court sets under Rule 12(c) or by any extension the
court provides."). Although Rule 12 creates exceptions for
objections challenging a court's jurisdiction and those claiming
that the indictment did not actually charge the crime for which the
defendant was tried, Rodriguez's objection to the specificity of
count four does not fall under these exceptions. See United States
v. Crowley, 318 F.3d 401, 420 (2d Cir. 2003). In the absence of
any indication in the record that Rodriguez objected to the
specificity of the indictment before trial, we conclude that he
waived this argument.3
2. Sufficiency of the Evidence
Rodriguez argues that the government failed to introduce
sufficient evidence to support two counts of his conviction, the
drug conspiracy charge (count one) and the aiding and abetting
murder of a witness charge (count four).4 We review a sufficiency
of the evidence claim de novo, "eschewing credibility judgments and
3
While Rule 12(e) allows a reviewing court to grant relief
from this waiver for good cause, we see no basis for doing so here.
4
Rodriguez did not challenge the sufficiency of the evidence
regarding his conviction on count five, aiding and abetting the
murder (of Llaurador) in furtherance of a drug crime.
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drawing all reasonable inferences in favor of the verdict, to
ascertain if a rational jury could have found that the government
proved each element of the crime beyond a reasonable doubt."
United States v. Sepulveda, 15 F.3d 1161, 1173 (1st Cir. 1993)
(citations omitted).
a. Conspiracy
"To prove the elements of the crime of conspiracy, the
Government must show the existence of a conspiracy, the defendant's
knowledge of the conspiracy, and the defendant's voluntary
participation in the conspiracy." United States v. Llinas, 373
F.3d 26, 30 (1st Cir. 2004) (internal quotation marks omitted).
Proof of the defendant's participation in the conspiracy must
include proof that he intended to commit the underlying substantive
offense. Sepulveda, 15 F.3d at 1173. "Such proof may consist of
circumstantial evidence, including inferences from surrounding
circumstances, such as acts committed by the defendant that
furthered the conspiracy's purposes. The government need not prove
that a co-conspirator knew all of the details or participated in
all of the objectives of the plan." Llinas, 373 F.3d at 30(internal quotation marks omitted). Since Rodriguez does not
contest the existence of a drug conspiracy, we need only consider
whether the government proved his participation in the conspiracy.
Rodriguez claims that the only evidence linking him to
the drug conspiracy was Soto's testimony that Rodriguez was present
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at the May 1997 meeting with Angela Ayala, when she and Valle-
Lassalle negotiated the details of a two thousand kilogram cocaine
shipment. He argues that while he was at her house during the
meeting, he played pool, listened to music, and did not participate
in that meeting.
This argument reflects a highly misleading view of the
evidence adduced at trial. In fact, Soto testified that Valle-
Lassalle offered to allow Rodriguez to participate in this
particular drug smuggling operation if he murdered Llaurador.
Prior to the meeting, Soto told Rodriguez that Rodriguez's share of
that drug shipment could be twenty to thirty thousand dollars, and
Rodriguez remarked that he expected to receive "a good position" in
the drug organization for committing the murder. His claim that he
was innocently playing pool at Ayala's house without knowledge that
a major narcotics deal was being negotiated simply does not
withstand scrutiny. Given this testimony, we have no difficulty
concluding that a jury could have found beyond a reasonable doubt
that Rodriguez was part of the drug conspiracy.
b. Aiding and Abetting Murder of a Witness
Rodriguez also claims that the evidence that the
government introduced to prove that he murdered Llaurador was
insufficient to establish a violation of the Witness Protection
Act, which states:
[W]hoever kills . . . another person, with
intent to (A) prevent the attendance or
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testimony of any person in an official
proceeding [or] . . . (C) prevent the
communication by any person to a law
enforcement officer or judge of the United
States of information relating to the
commission or possible commission of a Federal
offense . . . shall be punished . . . .
18 U.S.C. § 1512(a)(1). The government argues that Rodriguez
killed Llaurador to prevent him from communicating with authorities
regarding federal offenses.
To establish a crime under the "law enforcement officer"
section of the Act, the government must prove that:
(1) the defendant killed or attempted to kill
a person; (2) the defendant was motivated by a
desire to prevent the communication between
any person and law enforcement authorities
concerning the commission or possible
commission of an offense; (3) that offense was
actually a federal offense; and (4) the
defendant believed that the person in (2)
above might communicate with the federal
authorities.
United States v. Stansfield, 101 F.3d 909, 918 (3d Cir. 1996). The
Act explicitly relieves the government from having to prove that
the defendant suspected that the witness would communicate to
federal, as opposed to state, officials regarding the crime, see 18
U.S.C. § 1512(g) (stating that "[i]n a prosecution for an offense
under this section, no state of mind need be proved with respect to
the circumstance . . . that the law enforcement officer is an
officer or employee of the Federal Government"); therefore, the
fourth prong may be proven, among other ways, by demonstrating that
the underlying offense was a federal offense and that the federal
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authorities had begun an investigation prior to the informant's
murder or attempted murder. United States v. Bell, 113 F.3d 1345,
1349-50 (3d Cir. 1997).
The government easily met its burden here. Although
Rodriguez repeatedly refers to Caballo's murder as a Commonwealth
offense, the second superseding indictment lists the murder as a
charged offense and identifies it as an overt act in furtherance of
the federal drug conspiracy. The federal government, through the
DEA, had opened an investigation into this conspiracy and had
interviewed Llaurador prior to his murder. Rodriguez's claim that
he did not realize that he was helping to conceal a federal crime
by murdering Llaurador is irrelevant. See United States v.
Applewhaite, 195 F.3d 679, 687 (3d Cir. 1999) ("All that [a
parallel provision in the Witness Protection Act] requires is that
the government establish that the defendants had the intent to
influence an investigation that happened to be federal.").
B. Genao's Claims
1. Newly Discovered Evidence
Genao first complains that the district court should have
granted him a new trial under Fed. R. Crim. P. 33 based on his
post-trial discovery of exculpatory evidence. Rule 33 allows a
court to grant a new trial "if the interest of justice so
requires." Fed. R. Crim. P. 33(a). We will only overturn the
court's refusal to do so upon a showing that it manifestly abused
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its discretion. United States v. Josleyn, 206 F.3d 144, 160 (1st
Cir. 2000).
Genao claimed in his Rule 33 motion that two co-
defendants, Peña and Valle-Lassalle, each proffered sworn
statements after the trial claiming that Genao did not participate
in Caballo's murder. He also claimed that a private investigator,
Benny Soto, had interviewed Santodomingo, a leader of the
conspiracy, who had been arrested for money laundering in 1994 and
later pled guilty to drug trafficking charges arising out of the
first superseding indictment in this case. The investigator
reported that Santodomingo would testify that Genao had not been
involved in the drug conspiracy. The district court denied Genao's
motion for a new trial without conducting an evidentiary hearing.
Upon receiving Genao's motion for reconsideration, the court held
a hearing to consider it, and Peña, Valle-Lassalle, and
Santodomingo testified. Citing Genao's lack of diligence in
seeking this evidence prior to trial and the witnesses' lack of
credibility, the court again denied his motion for a new trial.
"A motion for new trial on the basis of newly discovered
evidence will ordinarily not be granted unless the moving party can
demonstrate that: (1) the evidence was unknown or unavailable to
the defendant at the time of trial; (2) failure to learn of the
evidence was not due to lack of diligence by the defendant; (3) the
evidence is material, and not merely cumulative or impeaching; and
-23-
(4) it will probably result in an acquittal upon retrial of the
defendant." United States v. Wright, 625 F.2d 1017, 1019 (1st Cir.
1980). "The defendant must meet all four prongs of the Wright test
in order to succeed on a Rule 33 motion. A defendant's new trial
motion must be denied if he fails to meet any one of these
factors." United States v. Colon-Munoz, 318 F.3d 348, 360 (1st
Cir. 2003) (internal quotation marks omitted).
Peña testified that he was the triggerman in Caballo's
murder and that Genao was not present at the murder scene. In
fact, he testified that he did not meet Genao until the two were
imprisoned together prior to their federal trial. When Genao's
lawyer asked him why he had failed to present this testimony
earlier, he answered:
Well, I was in negotiation [with the
government]. I mean, at one point in time, I
was thinking of fighting my case, you know, of
going to trial in my case, but then I started
to think a lot about Genao and the fact that
he had nothing to do with [Caballo]'s death.
Because I really had never met Genao out in
the street at all. I never saw him.
So when I finally made my agreement and I was
already sentenced, I said, Well, I'm going to
help him out because he really had nothing to
do with any of this killing, because I was the
one who killed [Caballo], and the ones
involved in [Caballo]'s murder, the ones who
were there for [Caballo]'s murder, was me and
[Llaurador], and we were the only ones who
were there at the lake when [Caballo] was
killed.
-24-
On cross-examination, Peña admitted that, as part of his plea
agreement, he accepted as true and correct the version of facts in
counts one and three of the second superseding indictment, which
stated that Genao participated in Caballo's murder. However, he
claimed that he thought that this affirmation meant that he was
admitting to the accusations in the indictment relating to his own
actions and culpability, not necessarily to the facts and
accusations relating to his co-conspirators.
Valle-Lassalle said that Genao never assisted with any of
the drug loads and that Genao had nothing to do with Caballo's
murder. Even though Genao asked him in jail to say that he was not
guilty, Valle-Lassalle said that he did not come forward with this
evidence earlier because he was awaiting trial. Valle-Lassalle
repeatedly refused to implicate some of his co-conspirators in the
murders and drug smuggling operations, prompting the government to
ask: "It goes against every grain of your being to testify and
implicate anyone that's not a cooperator or a dead person in
criminal conduct; isn't that correct?" Valle-Lassalle answered
simply, "Yes."
Santodomingo's testimony was less detailed. He stated
that he met Genao through Ramos and that Genao did not do any drug
work for him.
We have previously characterized post-sentencing
exculpatory testimony of co-conspirators as being "inherently
-25-
suspect." United States v. Montilla-Rivera, 171 F.3d 37, 42 (1st
Cir. 1999). Such witnesses have little to lose by fabricating
stories designed to free their comrades, especially when, as here,
the stories do not run the risk of implicating the witnesses in
other criminal acts.5 United States v. Simmons, 714 F.2d 29, 31-32
(5th Cir. 1983) ("[O]nce sentence has been imposed on a
co-defendant, '. . . there is very little to deter the . . .
co-defendant from untruthfully swearing out an affidavit in which
he purports to shoulder the entire blame.'") (citation omitted;
ellipses in original). Valle-Lassalle's admission that he was only
willing to inculpate dead people and informants, and the
contradictions between Peña's testimony at the evidentiary hearing
and the facts recounted in his plea agreement, capture the
limitations of the post-trial testimony of all three witnesses
produced at the evidentiary hearing. Having presided at the
lengthy trial of Genao and the co-defendants, and having heard the
testimony of the co-conspirators produced at the hearing on the
motion for a new trial, the district court did not remotely abuse
its discretion in rejecting the argument that the testimony from
Genao's co-conspirators "will probably result in an acquittal upon
5
Santodomingo is serving a 276 month sentence after being
indicted in the first superseding indictment and pleading guilty to
narcotics trafficking. The record does not identify the crimes to
which the other two witnesses pled guilty; however, Valle-Lassalle
admitted that he is serving a life sentence and Peña admitted that
he is serving a thirty year sentence.
-26-
retrial." Wright, 625 F.2d at 1019.
2. Confrontation Clause
At trial, the government called Edgar Delgado García, a
Puerto Rico Commonwealth judge who was the local prosecutor when
Llaurador started cooperating with authorities prior to his murder.
Judge Delgado read two sworn statements that Llaurador had given to
the police in the summer of 1996 regarding Caballo's murder. In
the first statement, Llaurador provided a detailed account of the
night of the murder, including the plan that Genao and Peña
developed to trap Caballo; the manner in which they killed him; and
the way in which Caballo's truck got stuck on the side of the road
after the murder. In the second statement, Llaurador explained
that Valle-Lassalle told him that he had given the order for
Caballo's death because Caballo was going to tell the Colombians
about the cocaine theft. Genao objected to the admission of this
hearsay testimony against him immediately before Judge Delgado
testified.
The argument over the admissibility of Llaurador's
statements principally involved the application of the forfeiture
by wrongdoing doctrine,6 which, as embodied in Rule 804(b)(6) of
the Federal Rules of Evidence, creates an exception to the general
6
The government also argued that Llaurador's statements
contained sufficient indicia of reliability to be admissible under
the catch-all provision in the hearsay rules. See Fed. R. Evid.
807.
-27-
prohibition on the admission of hearsay testimony for "statement[s]
offered against a party that has engaged or acquiesced in
wrongdoing that was intended to, and did, procure the
unavailability of the declarant as a witness." Genao claimed that
he was in jail awaiting trial for Caballo's murder when Llaurador
was murdered; therefore, he had nothing to do with the killing.
Noting that Rule 804(b)(6) allows the admission of evidence against
defendants who acquiesced in a hearsay declarant's murder, the
government responded that the mere fact that Genao did not directly
participate in the murder was immaterial. According to the
government, a portion of Ramos's testimony demonstrated that Genao
knew that Llaurador was going to be murdered and that Genao
acquiesced in the murder. Specifically, Ramos had testified that
Genao asked him for bail money when the two were imprisoned; when
Ramos called Valle-Lassalle to tell him about this request, Valle-
Lassalle told him to tell Genao that he should not be worried
because he would be out soon. Nine days later, according to the
government, Llaurador was murdered and Genao was set free.
Therefore, according to the government, Genao acquiesced in
Llaurador's murder. Apparently agreeing with the government's
theory of acquiescence (the court did not elaborate on its ruling),
the court admitted Llaurador's statements to the former
Commonwealth prosecutor as evidence against Genao.
-28-
a. Crawford v. Washington
As we recently noted, the Supreme Court's decision in
Crawford v. Washington, 124 S. Ct. 1354 (2004), "changed the legal
landscape for determining whether the admission of certain hearsay
statements violates the accused's right to confront witnesses."7
Horton v. Allen, 370 F.3d 75, 83 (1st Cir. 2004). Overturning
earlier precedent that allowed a court to consider hearsay
testimony against a criminal defendant if that testimony "bore
particularized guarantees of trustworthiness," see, e.g., Ohio v.
Roberts, 448 U.S. 56, 66 (1980), the Crawford Court held that,
absent other grounds for admissibility, the Confrontation Clause
categorically bars the admission of testimonial hearsay unless the
declarant is unavailable and the accused has had a prior
opportunity to cross-examine the declarant. Crawford, 124 S. Ct.
at 1374 ("Where testimonial evidence is at issue . . . the Sixth
Amendment demands what the common law required: unavailability and
a prior opportunity for cross-examination."). Although the Court
left for another day a comprehensive definition of "testimonial"
hearsay, it stated that "[w]hatever else the term covers, it
7
Genao filed a Fed. R. App. P. 28(j) letter, pro se, on March
30, 2004, citing Crawford. The government never filed a Rule 28(j)
letter regarding that case. We heard oral argument in this case on
March 2, 2004, and Crawford was published on March 8, 2004.
Although Crawford was decided after Genao was convicted, we must
apply this new precedent in his appeal. See, e.g., Hamling v.
United States, 418 U.S. 87, 102 (1974) ("[A] change in the law
occurring after a relevant event in a case will be given effect
while the case is on direct review.").
-29-
applies at a minimum to prior testimony at a preliminary hearing,
before a grand jury, or at a former trial; and to police
interrogations," or other "extrajudicial statements . . . contained
in formalized testimonial materials, such as affidavits,
depositions, prior testimony, or confessions." Id. (internal
quotation marks omitted).
We conclude that Llaurador's signed confession, presented
under oath to the prosecutor in Puerto Rico, is testimonial hearsay
within the meaning given by the Supreme Court. See, e.g., United
States v. Saget, 377 F.3d 223, 228 (2d Cir. 2004) (discussing the
parameters of "testimonial hearsay" in light of Crawford). Since
Genao did not have the prior opportunity to confront Llaurador
regarding his statements, we conclude that, absent some independent
ground for admissibility, it was a constitutional error for the
court to admit Llaurador's statements against Genao.
b. Forfeiture by Wrongdoing
As noted, the government drew upon the forfeiture by
wrongdoing doctrine in arguing to the district court that
Llaurador's hearsay statements were admissible against Genao
because he had acquiesced in Llaurador's murder. Forfeiture by
wrongdoing is an independent ground for the admissibility of
hearsay testimony that survives Crawford. See Crawford, 124 S. Ct.
at 1370.
-30-
Curiously, on appeal, the government essentially abandons
the forfeiture by wrongdoing argument, limiting itself to this one
statement in its brief: "Genao was aware of the order to kill
Llaurador because he had been informed by Victor Manuel Valle
Lassalle, a/k/a 'Manolo,' through David Ramos-Rivera, a/k/a 'Pecas'
not to worry." Instead, it simply argues that both of Llaurador's
statements were admissible because they were declarations against
penal interest and were otherwise reliable. See Fed. R. Evid.
804(b)(3). Crawford makes these traditional hearsay arguments
irrelevant. According to Crawford, Genao had a constitutional
right to confront Llaurador that, as to testimonial hearsay, could
not be overridden merely by showing indicia of reliability.
Under appropriate circumstances, the forfeiture by
wrongdoing doctrine can provide an exception to the Confrontation
Clause. See Crawford, 124 S. Ct. at 1370. But the glancing
reference to the doctrine of forfeiture by wrongdoing in the
government's brief does not give us any assistance in addressing
this difficult waiver issue.8 "We believe it is apodictic that
8
Without purporting to resolve anything, we suggest some of
the difficulties involved in determining whether a defendant has
"acquiesced" in wrongdoing that would forfeit his confrontation
rights. The Seventh and Tenth Circuits have held that the scope of
imputed responsibility for procuring the unavailability of a
witness, under both Rule 804(b)(6) and the Confrontation Clause, is
coextensive with conspiratorial liability under Pinkerton v. United
States, 328 U.S. 640 (1946). See United States v. Cherry, 217 F.3d
811 (10th Cir. 2000); accord United States v. Thompson, 286 F.3d
950 (7th Cir. 2002) (adopting Cherry). Under Cherry, the hearsay
and Confrontation Clause exceptions are met if "the wrongful
-31-
'issues adverted to in a perfunctory manner, unaccompanied by some
effort at developed argumentation, are deemed waived.'" United
States v. Caraballo-Cruz, 52 F.3d 390, 393 (1st Cir. 1995) (quoting
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)). This
rule, though most commonly applied to defendant-appellants, may be
"applie[d] with undiminished vigor when, as now, a prosecutor
attempts to rely on fleeting references to unsubstantiated
conclusions in lieu of structured argumentation." Caraballo-Cruz,
52 F.3d at 393. Although in certain circumstances we have the
discretion to overlook waiver by inadequate argument by the
government in a criminal case, see United States v. Rose, 104 F.3d
1408, 1414 (1st Cir. 1997) (court of appeals has discretion to
overlook government's waiver of harmless error argument), it would
be inappropriate in this case to make the government's argument for
it on an issue both factually and legally complex.
procurement [of the witness's unavailability] was in furtherance,
within the scope, and reasonably foreseeable as a necessary or
natural consequence of an ongoing conspiracy." 217 F.3d at 820.
However, Cherry requires the district court to determine the
factors supporting conspiratorial liability at an evidentiary
hearing conducted outside the jury's presence. Id. at 815.
Here, the district court did not make any factual findings on
the applicability of conspiratorial liability, let alone conduct a
separate hearing outside the presence of the jury. While Cherry
may represent a sensible rule of law, the government's failure to
argue it means that we lack the benefit of arguments on whether to
apply Cherry to this case, either in its substantive (scope of
liability) or procedural (determination of liability by separate
hearing) aspects. These difficulties highlight the necessity of
fully developed arguments on the forfeiture by wrongdoing doctrine.
-32-
c. Harmless Error
Although the government argued wrongly that Llaurador's
statements were admissible as declarations against penal interest,
it failed to argue in the alternative that, if the statements were
erroneously admitted, the error was harmless. See generally Fed.
R. Crim. P. 52(a) ("Any error, defect, irregularity, or variance
that does not affect substantial rights must be disregarded.");
Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986) (holding that
harmless error review applies to Confrontation Clause violations);
United States v. Reyes-Echevarria, 345 F.3d 1, 6 (1st Cir. 2003)
("We review challenges to the admissibility of evidence under the
Sixth Amendment's Confrontation Clause for harmless error.").
Because the government has not argued harmless error, we
could simply deem the issue waived, as we did for the forfeiture by
wrongdoing issue, and vacate the relevant convictions of Genao.
However, as noted, we have discretion "to overlook the government's
failure to argue that the admission of the challenged evidence, if
error, was harmless, and that [we] may therefore consider the issue
of harmlessness sua sponte." Rose, 104 F.3d at 1414. Exercising
this discretion "involves the balancing of many elements." Id. at
1415. If our sua sponte harmless error analysis led us to affirm
Genao's conviction, we would have to engage in a nuanced analysis
of the appropriateness of that sua sponte review. Here, for the
sake of completeness, and in light of our decision to vacate the
-33-
convictions for the serious crimes under review, we choose to
explain why admission of Llaurador's statements cannot be deemed
harmless.
"The government, not the defendants, bears the burden of
establishing harmlessness." United States v. Casas, 356 F.3d 104,
121 (1st Cir. 2004), cert. denied sub nom. Segui-Rodriguez v.
United States, 124 S. Ct. 2405 (2004). The analysis is case-
specific, considering, "among other things, the centrality of the
tainted material, its uniqueness, its prejudicial impact, the uses
to which it was put during the trial, the relative strengths of the
parties' cases, and any telltales that furnish clues to the
likelihood that the error affected the factfinder's resolution of
a material issue." Sepulveda, 15 F.3d at 1182.
We begin our harmless error analysis by describing the
evidence implicating Genao in the murder of Caballo apart from
Llaurador's hearsay statements. Ramos, the co-conspirator turned
informant, described a conversation that he had with Genao in which
Genao explained the course of events on the night of Caballo's
murder. Genao explained to Ramos that Caballo wanted Peña to kill
Llaurador because Caballo suspected Llaurador of stealing his all
terrain vehicle ("ATV"). Genao joined Peña and Caballo in
Caballo's white pickup truck to hunt for Llaurador. When they
finally found Llaurador, Genao got in the car with him and
explained that Caballo wanted to kill him but that he should not
-34-
worry because Genao and Peña were planning on killing Caballo
instead. They drove to a remote location with Caballo's white
pickup following behind and then disembarked. When Caballo told
Peña to kill Llaurador, Peña shot Caballo instead. The three then
loaded Caballo's body into the back of the pickup truck and were
planning to dismember the body at Valle-Lassalle's when the truck
became stuck. They were forced to abandon the truck and the body
on the side of the road.
The government offered some corroboration of Ramos's
testimony implicating Genao in the murder of Caballo. Soto
testified that Valle-Lassalle "told [him] what had happened with
[Caballo], that it had been [Genao] and [Peña], and that he had to
do it because of the Colombian thing." Caballo's girlfriend
testified that the last time that she saw Caballo was when he left
her house with Peña and Genao on the night of his murder. She
confirmed that Caballo's ATV had vanished and that the men brought
weapons with them in Caballo's white pickup truck to search for
Llaurador. Finally, Puerto Rico Police Agent Jorge Nazario Torres
testified that he found Caballo's body in his pickup truck, which
was stuck on the side of the road.
There is certainly some force to this evidence. If the
issue before us was the sufficiency of the evidence to support the
jury's finding that Genao engaged in a conspiracy to murder Caballo
or that he aided and abetted the murder of Caballo, we would
-35-
conclude that the evidence was sufficient to support those
convictions. However, the issue before us is not the sufficiency
of the evidence. Instead, we must decide whether there is a
reasonable possibility that the error at issue (the admission of
Llaurador's statements) influenced the jury in finding Genao guilty
of these murder-related charges. Before stating our conclusion on
that issue, we summarize the statements of Llaurador that were
presented to the jury by Judge (and former prosecutor) Delgado.
Delgado testified that he put Llaurador under oath and
asked him to tell him everything that he knew about Caballo's
murder. Llaurador responded in detail. He said that he saw
Caballo's truck stopped near his home at 2:00 AM on July 15, 2000.
Knowing that Caballo was mad at him for stealing the ATV, Llaurador
thought that Caballo was either looking for the ATV or was on his
way to visit Llaurador's girlfriend. So he drove to his
girlfriend's house to see if Caballo was there. He was not;
however, Caballo eventually drove near the house, and Genao got out
of Caballo's truck and asked Llaurador to take him to buy gasoline.
While they were driving in Llaurador's truck, Genao explained that
Caballo wanted Genao and Peña to kill him for stealing the ATV but
that they were planning on killing Caballo instead because Caballo
was going to "snitch" regarding the cocaine theft. Genao
repeatedly reassured Llaurador that nothing was going to happen to
-36-
him, and he told him to drive toward the cockfighting arena to meet
Caballo and Peña.
After meeting the other two at the arena, Genao and
Llaurador drove to a lake with Peña and Caballo following behind in
Caballo's truck. Genao continued to reassure Llaurador that they
were not planning to kill him. Peña and Genao switched trucks when
they arrived at the lake. Llaurador then implored, "if you're
going to kill me, kill me here and just leave me here." Peña
responded: "Are you going to keep up with this? Just take it easy,
we're not going to do anything to you." Llaurador followed
Caballo's truck a little further up a path, and then all four men
got out of their vehicles. Caballo grabbed Llaurador's shirt,
pushed him up against one of the trucks, and told Peña to "[p]ump
four shots into [his] face." Raising his arm, Peña said that he
was going to pump four shots into Caballo's face and shot him in
the face. Genao and Peña then began to argue about whether they
should leave Caballo's body there or take it with them. They
decided to put the body in the back of Caballo's truck, and
Llaurador, driving alone in his truck, led the group away from the
lake, with Peña and Genao quickly following in Caballo's truck. At
some point, Llaurador noticed that the truck was not behind him
anymore, and he turned back and found it stuck in a ditch on the
side of the road. He heard two shots as he was backing up and,
upon reaching the truck, was told that Peña shot Caballo two more
-37-
times because he got up and asked why Peña had shot him. Peña
answered, "[b]ecause you're a mother fucker." Llaurador then drove
Genao to his car and drove Peña to a public housing complex in
Aguadilla. As they were driving, Genao told Llaurador that the
original plan was to make Caballo "disappear" so that Genao could
keep the truck.
Delgado testified that Llaurador provided another
statement on September 13, in which he discussed Valle-Lassalle's
relationship to the murder. Llaurador said that Genao told him on
the way to the cockfighting arena that Valle-Lassalle told them to
kill Caballo because he was going to "snitch" about the cocaine and
that they were planning on taking the body back to Valle-Lassalle's
afterward to "chop him up and make him disappear." That is why
they took the body with them after the murder. Genao also told
Llaurador that he was planning to dismantle the truck.
Llaurador added that he saw Valle-Lassalle a week after
the murder, and the gangleader explained his rationale for killing
Caballo and said that Peña had left the country. Valle-Lassalle
also mentioned another death9 at a parking lot of the Ducos housing
project. Llaurador presciently noted to prosecutor Delgado that
Valle-Lassalle would kill him if he found out about the statements
he was then making and that he omitted the leader's involvement in
his earlier statement "because Manolo is the one who orders the
9
We take this to be a reference to Martin's murder.
-38-
killings." Finally, he said that he had not seen Peña since the
murder and that he had not seen Genao since the two attended
Caballo's wake.
These detailed statements of Llaurador, so similar in
some of their details to the testimony of Ramos, are powerfully
corroborative of the testimony offered by Ramos and others
implicating Genao in the murder of Caballo. To treat these hearsay
statements of Llaurador as merely cumulative (the harmless side of
corroborative) would be unrealistic. Moreover, these statements
were read into the record by a Commonwealth judge who was so
identified to the jury. That association inevitably added to the
weight of the hearsay testimony being offered, particularly since
the principal non-hearsay evidence consisted of testimony by a co-
conspirator (Ramos) and a cooperator (Soto), both of whose
integrity might be more open to question than Llaurador's. Under
these circumstances, we cannot exclude the reasonable possibility
that the constitutional error at issue in the admission of
Llaurador's statements influenced the jury in reaching its verdict
that Genao was guilty of participating in a conspiracy to murder
Caballo and that he aided and abetted that murder. Therefore, we
must vacate those convictions.
We reach a different conclusion regarding the impact of
the court's error on the jury's consideration of the drug
conspiracy (count one) charge. Focusing almost exclusively on the
-39-
events surrounding Caballo's murder, Llaurador's erroneously-
admitted statements say little about Genao's involvement in the
drug smuggling work of the conspiracy. Moreover, the testimony of
the two cooperating witnesses firmly established his participation
in those activities. Ramos testified that Genao worked as a drug
courier for him before Genao became a member of the conspiracy,
delivering pounds of marijuana for Ramos to sell at the Montana
housing complex. He described Genao's participation in two large
drug shipments, a nine hundred to one thousand kilogram shipment in
the fall of 1995 that the group smuggled on behalf of Ayala; and a
shipment of cocaine in February 1996, which Genao also helped to
transport and from which the conspirators stole kilos. Soto
testified that Genao participated in an aborted effort to smuggle
a large load of marijuana in June 1996. Genao was one of the
captains of the boats and was supposed to be paid between fifty
thousand and sixty thousand dollars, but they were never able to
connect with their supplier.
On the basis of this evidence, we readily conclude that
the district court's erroneous admission of Llaurador's statements
was harmless beyond a reasonable doubt in securing convictions on
count one of the second superseding indictment. See Casas, 356
F.3d at 121 (upholding a drug conspiracy conviction where "[o]ther
evidence presented at trial, as well as the admissible testimony of
-40-
[the investigating agent] based on personal knowledge, clearly
established that [the defendant] was a member of the conspiracy").
-41-