United States v. Liriano

United States Court of Appeals
For the First Circuit
No. 12-1780
UNITED STATES OF AMERICA,
Appellee,
v.
DENNIS LIRIANO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. William E. Smith, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Howard, Circuit Judges.
William T. Murphy, with whom William T. Murphy Law Offices,
Inc. was on brief, for appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Peter F. Neronha, United States Attorney, was on brief, for
appellee.
August 4, 2014
HOWARD, Circuit Judge. Appellant Dennis Liriano was
convicted of conspiracy to possess with intent to distribute a
controlled substance, in violation of 21 U.S.C. § 846. After
denying Liriano's post-trial motions, the district court sentenced
him to eighty-four months of incarceration. Liriano argues on
appeal that the evidence at trial was legally insufficient to
support the conviction and that various trial errors, either
individually or cumulatively, warrant reversal of his conviction.
We reject each of Liriano's appellate advances and affirm his
conviction.
I. BACKGROUND FACTS
In evaluating Liriano's claim that the evidence was
insufficient to support his conviction, we recount the facts in the
light most favorable to the verdict. United States v. Davis, 717
F.3d 28, 29-30 (1st Cir. 2013).1 We first outline the basic facts
of conviction, adding more details as they become relevant to
particular arguments.
On the night of June 17, 2009, United States Border
Patrol Agents Christopher Orsetti and Nicholas Francescutti were
patrolling in a marked vehicle near the Canadian border in
Ellenburg, New York, when they received a call to be on the lookout
for an orange Ford Focus with New York license plates. Ellenburg
is roughly 45 miles east of the Akwesasne Indian Reservation, which
1
Our factual recitation borrows from the district court's
Opinion and Order denying Liriano's post-trial motions for
acquittal and a new trial. United States v. Liriano, Cr. No. 09-
100-S, 2011 WL 4435650 (D.R.I. Sept. 22, 2011).
-2-
straddles the border between New York and Canada. The Reservation,
which cannot be patrolled by federal agents, is known to
authorities as a popular location for smuggling illegal aliens and
myriad types of contraband, ranging from tobacco to drugs and
weapons.
At approximately 10:30 p.m., the agents spotted the
wanted car, which was being driven erratically and at a high rate
of speed. They stopped the car, and after noting the smell of
marijuana, conducted a search and found two duffel bags with
approximately fifty pounds of marijuana in each. They also found
a smaller bag containing approximately 40,000 pills (roughly
twenty-seven pounds) of Benzylpiperazine (BZP), a schedule I
controlled drug.2 The agents arrested the driver, Xavier Robert.
The agents also found a fuel receipt from a convenience store
located within the Akwesasne reservation that was time-stamped
earlier that evening.
Robert was recruited to assist in the agents'
investigation of what appeared to be a drug deal. After he agreed
to conduct a controlled delivery, Robert was taken to a motel room
that he had rented days earlier in nearby Plattsburgh, New York,
where he waited with the agents to receive instructions. The next
morning, Robert participated in a series of phone conversations
2
According to the United States Drug Enforcement
Administration, BZP is a stimulant with no known medical uses in
the United States. See U.S. Dept. of Justice, Drug Enforcement
Administration, Office of Diversion Control, Drug & Chemical
Evaluation Section, July 2012, available at
http://www.deadiversion.usdoj.gov/drug_chem_info/bzp/bzp.pdf
-3-
with two French-speaking men. He was eventually instructed to
deliver the smaller bag -- the one containing the 40,000 BZP
tablets -- to Rhode Island. Instructions in hand, the agents and
Robert left the hotel and flew to Rhode Island.
Upon arrival in Rhode Island, Robert received a text
message instructing him to contact a Rhode Island telephone number.
He did so, asking for "Henry," as he was also instructed to do.
The person who answered the call (later identified as Liriano)
however, told Robert that he had dialed a wrong number. After
confirming with his contacts that he had, in fact, dialed
correctly, Robert prepared to call again. Before he did so,
however, Agent Robert Charles instructed Robert to tell "Henry"
that he (Robert) "has a package of candy for you." Robert called
again and asked, "Are you supposed to see a guy today? To get some
candy?" Liriano responded, "Ah! Okay, okay, okay, okay."
Robert and Liriano subsequently arranged to meet at 266
Adelaide Avenue in Providence. Robert informed his Canadian
contact, who responded approvingly and told Robert to text him when
the deal was done. At the urging of the agents, Robert made
additional calls to both the Canadian contacts and Liriano,
eventually changing the location of the meeting to a pharmacy
parking lot in Providence.
When the two men met, Liriano expressed concern about
surveillance cameras in the parking lot, passers-by watching them,
and the New York license plates on the car that Robert was driving.
He then tried to convince Robert to accompany him to his house,
-4-
whereupon agents moved in and arrested both men. In Liriano's
wallet they found one business card for a motel on the Akwesasne
reservation and another for an auto body shop in Montreal. His
cell phone number was the same one that Robert had called three
times and that had called Robert three times within the relevant
time period.
Liriano and Robert were both charged for their roles in
the thwarted deal. Robert pled guilty, but during what would turn
out to be Liriano's first trial, he refused to testify despite a
grant of immunity. The court found Robert in contempt, and the
trial ended with a hung jury. The government did not call Robert
to testify in the second trial, which lasted two days and ended
with Liriano's conviction. This appeal followed the court's denial
of Liriano's post-trial motions for judgment of acquittal and new
trial.
II. ANALYSIS
A. Sufficiency of the Evidence
We review Liriano's sufficiency claim de novo. United
States v. Rios-Ortiz, 708 F.3d 310, 315 (1st Cir. 2013).
"[R]eversal is warranted only where no rational factfinder could
have concluded that the evidence presented at trial, together with
all reasonable inferences, established each element of the crime
beyond a reasonable doubt." Id. (quoting United States v.
Symonevich, 688 F.3d 12, 23 (1st Cir. 2012)). We need not conclude
"that no verdict other than a guilty verdict could sensibly be
reached," but must only be satisfied that the verdict finds support
-5-
in a "plausible rendition of the record." United States v. Hatch,
434 F.3d 1, 4 (1st Cir. 2006) (citations omitted).
To sustain a drug conspiracy conviction, the government
must prove beyond a reasonable doubt that an agreement existed to
commit the underlying offense and that the defendant elected to
join the agreement, intending that the underlying offense be
committed. United States v. Paret-Ruiz, 567 F.3d 1, 5 (1st Cir.
2009). An agreement to join a conspiracy "may be express or tacit
. . . and may be proved by direct or circumstantial evidence."
United States v. Rivera Calderón, 578 F.3d 78, 88 (1st Cir. 2009).
Finally, "each coconspirator need not know of or have contact with
all other members, nor must they know all of the details of the
conspiracy or participate in every act in furtherance of it."
United States v. Cortés-Cabán, 691 F.3d 1, 14 (1st Cir. 2012),
(quoting United States v. Martínez-Medina, 279 F.3d 105, 113 (1st
Cir. 2002)), cert. denied sub nom Domínguez-Colón v. United States,
133 S. Ct. 2765 (2013)).
Liriano argues that the evidence was sufficient to show
only that he attempted to receive some undefined substance, not
that he agreed to attempt to receive a controlled substance.3 More
specifically, he argues that the evidence only shows that he was
3
Liriano obliquely alludes to an argument that the
government was required to prove his specific knowledge that the
controlled substance at issue was BZP. Even assuming the argument
is sufficiently fleshed out to be properly before us, it is
contrary to our precedent. See United States v. Burgos, 703 F.3d
1, 10 (1st Cir. 2012) ("[T]he Government must show that the
defendant knew the conspiracy involved a controlled substance, but
need not show that the defendant knew the specific controlled
substance being distributed."(emphasis in original)).
-6-
familiar with a motel near the Akwesasne Reservation and a body
shop in Montreal, and that he met with Robert. A full and fair
view of the evidence, however, reveals much more.
There is no dispute that Robert was operating with
instructions to deliver BZP to Providence and that Liriano answered
the phone associated with the number provided to Robert. Also,
Liriano twice referred to "other people" in his conversations with
Robert -- in connection with his expectation of a call prior to
Robert's and whether those "others" had given Robert his address.
The jury could have concluded that he was referring to Robert's
associates. Additionally, the jury could have found that the
Canadian contact's positive response indicated familiarity with the
meeting address that Robert reported, suggesting that there had
been previous contact with Liriano. Moreover, Liriano actually
appeared at the parking lot to meet with Robert, further evidence
that he was participating in the scheme. And he questioned the
parking lot's suitability, raising another inference that he was
aware of the illegal activity. Finally, Liriano's enthusiastic
reaction to Robert's use of the word "candy" -- suggested as a
euphemism for or description of the BZP pills4 -- supported a
finding that he was a willing participant in the deal. Stripped to
its essence Liriano's argument is that the jury could only have
found that his response to Robert's calls was no more than a
coincidence because he was awaiting delivery of some other
4
A jury could reasonably find from the photograph of the BZP
pills, which was an exhibit at trial, that the pills resembled
little candies.
-7-
material. The evidence is more than sufficient for the jury to
have reasonably concluded otherwise.
B. Confrontation Clause
Liriano argues that two statements introduced to the jury
violated his Confrontation Clause rights. The jury heard an audio
recording of Agent Charles instructing Robert to use the word
"candy" during his second call to Liriano, and of Robert
subsequently using the term when speaking to Liriano. The
inability to cross-examine Robert and Charles (neither of whom
testified), Liriano claims, violated his confrontation rights in
that it prevented him from exploring the meaning of the term
"candy" with either of them. Finding that the argument was
preserved, we review the claim de novo. United States v. Rivera-
Rodríguez, 617 F.3d 581, 590 (1st Cir. 2010), cert. denied, 133 S.
Ct. 1306 (2013).
The Confrontation Clause of the Sixth Amendment generally
prohibits the admission of testimonial hearsay against a criminal
defendant. See Crawford v. Washington, 541 U.S. 36, 68 (2004).
Under Crawford, a declarant's testimonial out-of-court statement
cannot be admitted consistent with the Confrontation Clause unless:
1) the declarant testifies; 2) the defendant had a prior
opportunity for cross-examination; or 3) the statement is admitted
for purposes other than for the truth of the matter asserted.
United States v. Hicks, 575 F.3d 130, 143 (1st Cir. 2009). In
order to cut to the chase, we assume without deciding that Robert's
and Charles's statements above were "testimonial." See United
-8-
States v. Phoeun Lang, 672 F.3d 17, 22 (1st Cir. 2012) (observing
that Crawford issue includes analysis of whether out-of-court
statements were "testimonial"), cert. denied, 133 S. Ct. 2730
(2012).
Here, the question posed by Robert to Liriano -- "Are you
supposed to see a guy today? To get some candy?" -- falls within
the third Crawford exception in that it provided context for
Liriano's response. Indeed, this case is identical in all relevant
respects to United States v. Santiago, 566 F.3d 65 (1st Cir. 2009),
in which we found no error in the admission of recordings of two
government informants talking with the defendant about an upcoming
drug transaction. Id. at 69. ("[T]he statements of the informants
were not offered for their truth but as exchanges with Santiago
essential to understand the context of Santiago's own recorded
statements arranging to 'cook' and supply the crack."); see also
United States v. Walter, 434 F.3d 30, 33-34 (1st Cir. 2006)
(affirming admissibility of informant's end of a conversation with
defendant as providing context for statements by defendant that
constituted admissions under Fed. R. Evid. 801(d)(2)(A)).
Accordingly, there was no error in admitting this statement.5
Agent Charles's instruction to Robert takes us in a
5
We also note that although Liriano was permitted a standing
objection to many putative hearsay statements, he never sought a
limiting instruction with respect to Robert's "candy" comment. See
United States v. Mubayyid, 658 F.3d 35, 72 (1st Cir. 2011), cert.
denied, 132 S. Ct. 2378 (2012); see also United States v. Maher,
454 F.3d 13, 23 (1st Cir. 2006) (finding no plain error where
district court gave a limiting instruction following improper
admission of testimony).
-9-
slightly different direction. Although the district court's
pretrial orders called for the defendant to propose any redactions
to any recordings that the government intended to introduce,
Liriano did not do so. Such a failure constituted a waiver. See
United States v. Cianci, 378 F.3d 71, 104-05 (1st Cir. 2004)
(noting with approval district court's use of pretrial order
requiring defendant to propose redactions to evidentiary tapes and
finding that district court's waiver ruling was within its
discretion). Notwithstanding Liriano's failure to request a
redaction, and even assuming that Agent Charles's instruction to
Robert was improperly before the jury, any error in admitting it
was in any event harmless beyond a reasonable doubt. See United
States v. Cabrera-Rivera, 583 F.3d 26, 36 (1st Cir. 2009) (noting
that where evidence is admitted in violation of the Confrontation
Clause, we may affirm a conviction if the government demonstrates
that the error was harmless beyond a reasonable doubt). The record
shows that any error in admitting Charles's comment likely
redounded to Liriano's benefit: during closing argument defense
counsel, in an attempt to undermine the government's case,
exploited the fact that Robert needed Charles's prompting.
Moreover, as we explained in rejecting Liriano's sufficiency claim,
the overall strength of the government's case establishes that any
error was harmless beyond a reasonable doubt. See id. (listing
factors to consider in harmlessness evaluation).6
6
We decline to adopt the government's assertion that defense
counsel's closing argument constituted a waiver as a tactical
decision. See United States v. Washington, 434 F.3d 7, 11 (1st
-10-
C. Closing Argument7
Liriano alleges that certain comments made by the
prosecutor during rebuttal constituted misconduct that warranted a
new trial. Some stage-setting is in order. In closing, the
prosecutor said:
"I am the guy you are supposed to see today.
I am the guy with the candy. Okay. Okay.
Okay." Your jobs as jurors in this case is to
determine whether or not there's sufficient
evidence to establish that this Defendant,
Dennis Liriano, knew that "candy" meant
illegal drugs.
The defense closing contained the following passage:
You've got the transcripts. You listen to the
tape. And [in] that second telephone call
Xavier Robert says, "You want some candy?" I'm
paraphrasing it. I'll stand by what the
transcript says. But if you look at the call
immediately before that, you will see at the
very end, . . . that the word "candy" is
introduced into this case by an agent. It's
not something Xavier Robert came up with.
It's blood in the water for a shark. It's
bait. That's what Dennis Liriano . . . jumped
at.
Cir. 2006). Although there is a dispute as to the precise contours
of the objection, defense counsel did object to the audio tape's
admission, and only tried to take advantage of the comment in
closing, after the statement had been admitted. We similarly
reject Liriano's attempt to liken this case to United States v.
Meises, 645 F.3d 5 (1st Cir. 2011). There, the in-court witness
testified in such a way that "a reasonable jury could only have
understood [the witness] to have communicated that [the declarant]
had identified appellants as participants in the drug deal." Id.
at 21; see also Maher, 454 F.3d at 23 (cautioning against use of
"context" basis in a case where non-testifying informant identified
defendant as a drug dealer). Robert's statement, standing alone,
carried no such inflammatory message.
7
The parties tussle over whether these arguments were
preserved. It is of no moment, because they fail under any
standard of review.
-11-
Defense counsel also argued:
If these pills were in a zipped up bag-and I
interject that your memory controls this. I
don't think there's any direct evidence in
this case that the bag was even in the trunk
of that Ford Focus. There was a lot of talk
of how they went out and rented a Ford Focus
and flew everybody down here, but I don't
recall either Special Agent Holloran or
Special Agent O'Neill, former Special Agent
O'Neill[,] testifying that the bag was
actually in the trunk of that car. But your
memory controls that. By comparison, it's a
small point.
Next, the prosecutor began his rebuttal with:
[Defense counsel] has one of the greatest
reputations in the state as a criminal defense
attorney. He is a veteran litigator and a man
that many of us who practice law here in Rhode
Island look up to. He would never
intentionally mislead you in any way, shape or
form as to what the state of the evidence is
or what issues you need to focus on.
Sometimes in our enthusiasm as advocates, we
kind of miss the ball and we get ahead of
ourselves. In this particular case, with the
crime that's been charged here, the crime of
conspiracy, and please take a look at the
instructions again if there's any question in
your mind as to what the elements of that
offense are, it's absolutely totally
irrelevant as to whether or not there were
even drugs in the trunk of the car.
. . . .
Now, the evidence does show, I would suggest
to you, and you may recall this testimony,
that the agents dumped out the BZP into some
other containers and they went out and they
purchased over-the-counter drugs about the
same size and color, you might recall that, as
the BZP. They threw some random samplings of
the BZP in the bag and the bag went in the
trunk of the car. You'll recall that
testimony.
Finally, the prosecutor further argued:
-12-
[Defense counsel] says, you don't know what
the candy is. You don't know what the candy
is. Candy could be gray market goods. . . .
No. Folks, 'candy' was a code word. [Defense
counsel] says, Look at the transcript. The
agent introduced the word 'candy.'
Of course I also, please, encourage you, look
at that portion of the transcript where the
agent says, Tell him you've got candy. These
are veteran customs agents who have conducted
countless numbers of drug investigations.
Isn't it reasonable to infer from the evidence
that they know what the buzz words are in the
drug trade? Of course it is. It's only
reasonable to conclude this is a phrase used
in the drug trade. And it certainly hooked
this Defendant, didn't it? 'I'm the guy with
the candy. Okay. Okay. Okay.'
Liriano argues that the prosecutor's statement that
"candy" was a code word introduced to the jury a fact not in
evidence. While the prosecutor indeed asked the jury to make that
inference, he did not state that there was evidence proving the
meaning of the "code word."8 His conduct therefore was not
improper. See United States v. O'Shea, 426 F.3d 475, 485 (1st Cir.
2005) (observing that a prosecutor may, during closing argument,
attempt to persuade the jury to draw inferences from the evidence,
but may not rely on knowledge or evidence unavailable to the jury).
Given Liriano's response to the word used by an individual ready to
deliver a bag of pills, the inference was a permissible one.
Liriano also argues that the reference to "veteran
Customs Agents" constituted improper introduction of evidence
because Agent Charles, who provided the "candy" instruction to
8
The district court expressly excluded a statement from
Robert to an agent that "candy" was a code word for an illegal
drug.
-13-
Robert, did not testify and there thus was no evidence of his
experience. Charles's partner, however, testified at length about
his own experience and his partnership with Charles.9 While the
jury may have understood the prosecutor's remarks to refer to both
agents, the allegation of reversible misconduct falls short of the
mark. In assessing a misconduct claim, we analyze 1) whether the
conduct was isolated; 2) the presence of any curative instructions;
and 3) the likelihood of prejudice affecting the outcome of the
case. United States v. Gentles, 619 F.3d 75, 81-82 (1st Cir.
2010). Here, there was no misconduct. And in any event, the
comments were isolated and necessarily of limited effect, the jury
was instructed that the attorneys' arguments were not evidence, and
the remainder of the evidence, along with the trial court's
instruction, ameliorated any potential prejudice. We therefore
find no abuse of discretion in the district court's denial of a new
trial.
Finally, Liriano argues that the prosecutor's praise of
defense counsel, immediately followed by the claim that counsel
misstated the evidence, amounted to an improper attack on defense
counsel. First, there is no dispute that defense counsel did
misstate the evidence with respect to whether a bag of pills was in
the car. Second, in addition to correcting the misstatement, the
prosecutor also argued that whether there were pills in the car was
9
In concluding that the government's statement about
"veteran customs agents" improperly introduced new evidence, the
dissent erroneously ignores the testimony of Agent Charles's
partner, a veteran customs agent.
-14-
irrelevant, thus lessening the already slim chance that the jury
would interpret the comments as a credibility attack. Finally, we
again observe that any risk to the defendant was further
ameliorated by the jury instruction that arguments are not
evidence. On this issue, as well, there was no abuse of discretion
in the denial of a new trial.
D. The Business Card
Liriano makes a brief argument that the Montreal body
shop business card found in Liriano's wallet should have been
excluded as irrelevant.10 Liriano's argument is that the card was
"simply a piece of paper" with no independent connection to the
conspiracy. Relevant evidence, however, does not need to resolve
a key issue in the case, but "only move the inquiry forward to some
degree." Bielunas v. F/V Misty Dawn, Inc., 621 F.3d 72, 76 (1st
Cir. 2010). "A relevancy based argument is usually a tough sell."
Id. Here, given the facts that the other participants in the
conspiracy were Canadian and that Liriano's wallet also contained
a link to the Akwesasne Reservation, the business card was
relevant.
III. CONCLUSION
The conviction is affirmed.
- Dissenting Opinion Follows -
10
Liriano does not argue that any probative value was
outweighed by unfair prejudice, pursuant to Fed. R. Evid. 403.
-15-
TORRUELLA, Circuit Judge (Dissenting). In the trial of
Dennis Liriano ("Liriano"), the government bore the burden of
proving beyond a reasonable doubt that Liriano conspired to possess
with intent to distribute a controlled substance in violation of 21
U.S.C. § 846. A critical fact in the case was thus whether Liriano
knew that Xavier Robert's reference to "candy" actually referred to
a controlled substance and not to some other form of contraband.
Puzzlingly, however, the government chose not to elicit any
testimony about the meaning of the term "candy," or about code
words or street names used to describe either controlled substances
generally or BZP pills specifically. Then, in closing argument,
the prosecutor urged the jury to infer the meaning of "candy" based
on evidence not presented at trial. Finding the prosecutor's
statements at closing argument to be both improper and prejudicial
in this case, I believe a new trial is required and I respectfully
dissent.
The primary question before the jury, as the prosecutor
stated at the beginning of his closing argument, was "whether or
not there[] [was] sufficient evidence to establish that this
Defendant, Dennis Liriano, knew that 'candy' meant illegal drugs."
The theory of the defense was that "candy" could have referred to
any manner of contraband, and without evidence that Liriano knew
"candy" meant drugs, there was insufficient evidence to convict.
Throughout the trial, Liriano's counsel repeatedly elicited
testimony from government witnesses that all manner of contraband
is smuggled into the United States via the Akwesasne Indian
-16-
Reservation, including weapons, counterfeit prescription drugs,
counterfeit Rolex watches, and counterfeit credit cards.
In closing argument, the prosecutor first properly argued
that it was reasonable to conclude that "candy" did not refer to
chocolate. He added that common sense suggested that a phone
conversation about a drug deal would likely be "cryptic" and
"coded." The prosecutor then expanded this line of argument in
rebuttal, telling the jury:
[Defense counsel] says, you don't know
what the candy is. You don't know what the
candy is. Candy could be gray market
goods. . . . No. Folks, "candy" was a code
word. [Defense counsel] says, Look at the
transcript. The agent introduced the word
"candy."
Of course I also, please, encourage
you, look at that portion of the transcript
where the agent says, Tell him you've got
candy. These are veteran customs agents who
have conducted countless numbers of drug
investigations. Isn't it reasonable to infer
from the evidence that they know what the buzz
words are in the drug trade? Of course it is.
It's only reasonable to conclude this is a
phrase used in the drug trade.
Defense counsel took issue with these statements. The government
had not previously offered any evidence about the experience of the
agent who introduced the word "candy." The jury had heard nothing
regarding the agents' familiarity with "buzz words" in the drug
trade or their understanding of the meaning of "candy."
Accordingly, defense counsel moved for a mistrial on the grounds
that these statements introduced new evidence unsupported by the
record.
-17-
Faced with these facts, the majority appears to miss the
thrust of Liriano's argument by looking at fragments of the
prosecutor's remarks in isolation. As the majority asserts, a
comment that "candy" is a code word, considered alone, may indeed
be unobjectionable. However, once the prosecutor's statements are
considered together and in context, it becomes clear that the
prosecutor asked the jury to infer that the agent who introduced
the word "candy" did so because he was a veteran agent who knew
from his extensive investigative experience that "candy" was a buzz
word used in the drug trade. Given that the government introduced
no evidence to support such an inference and instead relied upon
information not contained in the record, these statements were
improper.11
"It is well settled that in its closing argument the
prosecution may not rely on knowledge or evidence unavailable to
the jury." United States v. Hamie, 165 F.3d 80, 84 (1st Cir. 1999)
11
The majority suggests that we erroneously ignore the
testimony of Agent Charles's partner, who, the majority asserts,
testified "at length about his own experience and his partnership
with Charles." This assertion is misleading. First, Agent
Charles's partner neither introduced the term "candy" nor testified
as to its meaning, so his discussion of his own experience does not
help to shed light on the experience -- or lack thereof -- of Agent
Charles. Second, although Agent Quackenbush arguably discussed his
own experience "at length," the same cannot be said of his
testimony regarding his partnership with Agent Charles. The sum
total of his testimony about their partnership consisted of Agent
Quackenbush calling Agent Charles "my partner." He discussed
neither the length of their partnership nor any other information
that could shed light on Agent Charles's experience as an agent.
Accordingly, the prosecutor's suggestion that Agent Charles's
understanding of drug code words could be trusted because he was a
veteran agent who had conducted "countless numbers of drug
investigations" was totally devoid of record support.
-18-
(internal quotations omitted). While a "prosecutor may attempt to
persuade the jury to draw inferences from the evidence," United
States v. O'Shea, 426 F.3d 475, 485 (1st Cir. 2005) (internal
quotations omitted), these comments may cross the line into
misconduct where they "rely on too big an inferential leap."
Hamie, 165 F.3d at 84 (citing United States v. Artus, 591 F.2d 526,
528 (9th Cir. 1979) (finding the prosecutor's statements in closing
argument improper because they referenced the authority of Director
of Federal Bureau of Prisons when the Director's powers had not
been placed in evidence)); see also United States v. Vargas, 583
F.2d 380, 385 (7th Cir. 1978) ("At some point . . . the inference
asked to be drawn will be unreasonable enough that the suggestion
of it cannot be justified as a fair comment on the evidence but
instead is more akin to the presentation of wholly new evidence to
the jury, which should only be admitted subject to
cross-examination, to proper instructions and to the rules of
evidence.").
In this case, the prosecutor relied on knowledge and
evidence not available to the jury to support the "inferences" he
presented in closing argument. Neither Agent Charles nor Robert
ever testified at trial. No evidence of Agent Charles's experience
as a customs agent or his rationale for instructing Robert to say
"candy" was ever presented to the jury.12 Additionally, while the
12
In Liriano's first trial, the court expressly excluded
testimony that the reason Agent Charles suggested the term "candy"
was because Robert had told him that was how Robert referred to the
drugs.
-19-
government elicited testimony from several agents as to the nature
and appearance of BZP and amounts inconsistent with personal use,
at no point did any witness discuss the use of any code names for
drugs generally, or BZP specifically.13 From this void, the
prosecutor asked the jury to infer that the experience of an agent,
about which they had no evidence, allowed that agent to deduce that
"candy" was a "buzz word" used in the drug trade, a topic on which
they heard no testimony. Considered together and in context, it
becomes clear that, with these statements, the prosecutor
improperly introduced new evidence to the jury in closing argument.
Finding that the prosecutor's statements were improper
and thus constituted misconduct does not end the analysis, however.
"A new trial is unwarranted so long as we are able to conclude with
a high degree of confidence that the alleged prosecutorial
misconduct did not affect the outcome of the trial." United States
v. Smith, 982 F.2d 681, 684 (1st Cir. 1993). The likelihood that
prejudice stemming from the improper comments affected the outcome
of trial is considered in light of the following factors: "(1) the
severity of the prosecutor[]'s misconduct, including whether it was
deliberate or accidental; (2) the context in which the misconduct
13
When reviewing the sufficiency of the evidence, the
majority observes that terms "candy" was "suggested as a euphemism
for or description of the BZP pills." Certainly, the prosecutor
"suggested" in closing argument that "candy" was "a code word" used
in the drug trade, but it is of critical importance that no
evidence was introduced on the subject. And although the majority
hypothesizes that the jury might have determined that "candy" meant
BZP pills because the pills physically resemble candies, not even
the prosecutor suggested that the "candy" designation was suggested
or used because of the physical appearance of the pills.
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occurred; (3) whether the judge gave curative instructions and the
likely effect of such instructions; and (4) the strength of the
evidence against the defendants." United States v. Castro-Davis,
612 F.3d 53, 66 (1st Cir. 2010) (quoting United States v.
Nelson-Rodríguez, 319 F.3d 12, 38 (1st Cir. 2003)).
It is clear that the improper statements in Liriano's
trial were confined to a few sentences in the prosecutor's
rebuttal, and they did not permeate the trial. Additionally, while
the court gave only a general jury instruction that arguments were
not evidence, as opposed to a specific curative instruction
targeting and striking the improper statements, defense counsel did
not request any such curative instruction.
However, the context in which the statements were
delivered points towards the likelihood of prejudice. As we have
repeatedly recognized, "prejudicial statements made during closing
argument militate in favor of reversal because they are the last
words spoken to the jury by the trial attorneys." United States v.
Azubike, 504 F.3d 30, 39 (1st Cir. 2007) (internal quotation marks
and citation omitted).
Further, and in my view most significantly, the court
must consider the strength of the evidence against Liriano. As we
have previously observed, "[t]he strength of the case against the
defendant often is the most significant factor to be balanced
against the prosecutorial misconduct." Smith, 982 F.2d at 684-86
(finding that a new trial was not warranted after the prosecutor's
improper statements because the evidence against the defendant was
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uncontested); see also United States v. Gentles, 619 F.3d 75, 82
(1st Cir. 2010) (finding no prejudice from improper remarks
"because this is not a close case and there is no likelihood that
the remarks could have affected its outcome" where there was an
"abundance of independent evidence" (internal quotation marks and
citation omitted)).
In this case, unlike Smith and Gentles, the evidence of
Liriano's guilt was neither uncontested nor abundant. Rather,
"this was a close case and the prosecutor's misstatements went to
the heart of [the] defense." Azubike, 504 F.3d at 40 (finding
prosecutor's statements prejudiced defendant where "there was no
direct evidence that [the defendant] knew what was in the package,
and the government was required to prove [the defendant's]
knowledge through inference"). In fact, the district court itself
observed that Liriano's was a "close case." The strongest evidence
that Liriano was conspiring to possess with intent to distribute a
controlled substance included recorded conversations that implied
Liriano was in communication with Robert's handlers, as well as
Liriano's reaction to the word "candy." I consider each in turn.
In a recorded conversation, Liriano told Robert that
"[t]here are two people who called me at this number. I didn't
know. They never called me first." In a second call, Liriano
asked Robert, "[d]idn't they give you my address?" The majority
argues that "they" could have referred to Robert's handlers, which
could support an inference that Liriano was in communication with
the conspirators. In addition, Robert spoke with his handlers to
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verify Liriano's number and address, which the majority interprets
as supporting an inference that the conspirators were familiar with
Liriano. Such indirect and circumstantial evidence is hardly
overwhelming. Cf. United States v. Doe, 860 F.2d 488, 495 (1st
Cir. 1988) (finding no prejudice after improper comments where
"[t]he evidence against them on the possession charge was simply
too overwhelming").
The majority also credits Liriano's presence at the
meeting with Robert and his reaction to the word "candy" as
evidence supporting a finding that Liriano possessed the requisite
knowledge and intent. However, both facts are equally consistent
with a finding that Liriano was hoping to acquire an illegal good
other than a controlled substance, like the weapons and other
contraband known to be smuggled via the reservation.
Given the weak circumstantial evidence that Liriano knew
Robert was bringing him drugs as opposed to another form of
contraband, the prosecutor's argument that the agents knew from
experience that "candy" was code in the drug trade was of critical
importance and went directly to the heart of the defense. Thus, I
am unable to conclude with a high degree of confidence that the
prosecutorial misconduct at issue did not affect the outcome of the
trial. Accordingly, I would find that the district court abused
its discretion when it denied Liriano's motion for a new trial.
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