United States v. Agramonte-Quezada

United States Court of Appeals
For the First Circuit
No. 20-1346
UNITED STATES OF AMERICA,
Appellee,
v.
WILLIAM GREGORIO AGRAMONTE-QUEZADA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Aida M. Delgado-Colón, U.S. District Judge]
Before
Howard, Chief Judge,
Thompson, Circuit Judge,
and Woodcock, District Judge.
Tanaira Padilla-Rodríguez for appellant.
Andrew C. Noll, with whom W. Stephen Muldrow, United States
Attorney, Mariana E. Bauzá-Almonte, Assistant United States
Attorney, Chief, Appellate Division, Nicholas L. McQuaid, Acting
Assistant Attorney General, Robert A. Zink, Acting Deputy
Assistant Attorney General, Kelley Brooke Hostetler, Criminal
Division, Appellate Section, U.S. Department of Justice, and
Vanessa E. Bonhomme and Angela J. Clifford-Salisbury, Assistant
United States Attorneys, were on brief, for appellee.
 Of the District of Maine, sitting by designation.
March 25, 2022
- 2 -
WOODCOCK, District Judge. On October 23, 2019, a jury
convicted William Gregorio Agramonte-Quezada ("Agramonte") of one
count of possession with intent to distribute cocaine in violation
of 21 U.S.C. § 841(a)(1) and one count of importation of cocaine
in violation of 21 U.S.C. §§ 952 and 960. On February 27, 2020,
the district court imposed the mandatory minimum sentence of one-
hundred-twenty months imprisonment, to be followed by a five-year
term of supervised release.
Agramonte appeals his convictions and sentence on three
grounds. He contends the district court abused its discretion in
(1) admitting evidence, including the testimony of a canine
handler, that a drug sniffing dog alerted to his vehicle, on the
same ferry route eighteen days prior, as "other-acts" evidence
pursuant to Federal Rule of Evidence 404(b); (2) admitting
testimony of a Homeland Security Investigations agent about the
practices of drug traffickers smuggling drugs into Puerto Rico as
that of a lay witness opinion pursuant to Federal Rule of Evidence
701; and (3) failing to sua sponte order a competency evaluation
prior to (or during) his sentencing hearing. We affirm the
convictions and sentence.
- 3 -
I. Background
A. The Charges
The January 17, 2019 two-count indictment in this case
charged that on December 28, 2018, Agramonte possessed five
kilograms or more of cocaine with the intent to distribute it, an
alleged violation of 21 U.S.C. § 841(a)(1), and on the same date,
that he imported a controlled substance, namely five kilograms or
more of cocaine, an alleged violation of 21 U.S.C. §§ 952 and 960.
On January 22, 2019, he pleaded not guilty. Agramonte went to
trial on October 21, 2019 and was found guilty on both counts on
October 23, 2019. In reciting the evidence presented at
Agramonte's trial, we adopt a "'balanced-presentation' approach."
United States v. García-Sierra, 994 F.3d 17, 23 (1st Cir. 2021)
(quoting United States v. Rodríguez-Soler, 773 F.3d 289, 290 (1st
Cir. 2014)).
B. The Crimes
On December 28, 2018, U.S. Customs and Border Protection
("CBP") officers conducting inbound inspections for ferry arrivals
to San Juan, Puerto Rico from the Dominican Republic referred for
further inspection a white Ford Econoline van after CBP drug-
detection dog Honzo signaled a positive alert to the front of the
van. CBP officers contacted the driver and sole occupant of the
vehicle, Agramonte, whose bill of lading stated that he had brought
appliances and household goods from Puerto Rico to the Dominican
- 4 -
Republic. Upon secondary inspection, CBP officers discovered that
the radiator of the Ford van had been modified in that it was
abnormally large with fresh paint and non-factory weld marks.
Officers removed the radiator, revealing fourteen brick shaped
objects, later confirmed to contain approximately thirteen
kilograms of cocaine, with a street value of approximately
$300,000.
The December 28 border incident was not Agramonte's
first instance of a canine alert on his vehicle at the ferry
terminal in San Juan. Eighteen days earlier on December 10, 2018,
having traveled to the Dominican Republic, Agramonte returned to
Puerto Rico on the same ferry in a different Ford Econoline van—
this time yellow. Agramonte acquired title to the yellow van in
Puerto Rico on November 1, 2018 and made a reservation on November
27 to leave for the Dominican Republic the next day. On December
10, 2018, as Agramonte was making his way back through customs in
San Juan, a CBP detection dog alerted to Agramonte's yellow van
and the officers inspected the van. During their inspection, CBP
officers noticed the van had been modified and was equipped with
a bigger-than-usual radiator, had fresh paint, and contained non-
factory weld marks. During the officers' inspection, CBP drug-
detection dog Baku alerted to the van's front engine area. The
officers spent two to three hours unsuccessfully attempting to
remove the radiator before letting Agramonte leave with his van.
- 5 -
Approximately five days later, Agramonte purchased a different
Ford Econoline van, this time white, which he was using on December
28, 2018, when CBP stopped him again upon his return from a trip
to the Dominican Republic.
II. The Issues
A. The Admissibility of the December 10, 2018 Incident
1. The Pretrial Notices and Motions
On September 30, 2019, the government filed a notice of
intent to introduce "other-acts" evidence pursuant to Federal Rule
of Evidence 404(b), focusing on Agramonte's December 10, 2018
encounter with CBP, including Baku's sniff and alert on the van's
radiator area. The government contended that this evidence was
admissible as proof of opportunity, knowledge, intent, identity,
and absence of mistake.
On October 2, 2019, Agramonte objected to the "other-
acts" evidence on the grounds that the December 10 canine alert
was inadmissible character evidence and not probative of what
happened on December 28, 2018, as a canine alert is not necessarily
proof of a crime or wrongful act and CBP did not find any drugs on
December 10.
On October 3, 2019, after the lapse of the district
court's September 30 discovery deadline, Agramonte filed a related
motion in limine to exclude all canine evidence, arguing that the
government had not provided canine-related discovery, namely
- 6 -
reports of the December 10 event or identifying information for
Baku, the December 10 canine, and for Baku's CBP handler.
2. The October 11, 2019 Pretrial Conference
The district court and counsel discussed the December
10, 2018 incident at the October 11, 2019 pretrial conference.
The government requested the opportunity to file a motion in limine
and to respond to Agramonte's objection and motion and Agramonte
requested discovery concerning the reliability of the canines.
The district judge ordered the government to file an amended
designation of evidence by October 16 and gave Agramonte until
October 18 to oppose the new government designation. The district
judge also ordered the government to provide specific information
as to the reliability of the canines (training and agreement of
confidentiality) and to file a motion for protective order.1
3. The Post-Pretrial Conference Motions and Orders
On October 16, 2019, the government filed an amended
notice of intent to introduce expert testimony, designating four
law enforcement officers as potential witnesses and attaching
their curricula vitae. Two of the four experts were CBP canine
enforcement officers: Javier Quiles, handler of Baku on December
1 On October 17, 2019, the government filed a motion for
protective order concerning the certifications of the canine
officers and the certifications and training records of the
canines. The district court granted the motion for protective
order the same day.
- 7 -
10, 2018, and Adriel Castillo, handler of Honzo on December 28,
2018.
On October 17, 2019, the government filed its reply to
Agramonte's opposition to its intent to introduce evidence of the
December 10 alert. In its reply, the government first argued that
the evidence was admissible to explain why CBP agents focused on
Agramonte's radiator on December 28, contending they remembered
seeing Agramonte on December 10 in a different Ford Econoline with
similar modifications. The government went on to emphasize that
the previous dog alert "is relevant in showing that the defendant
was, at the very least, alerted to the fact that law enforcement
detected something in" the van he was driving on December 10, that
it goes to his motive to "intentionally change[] vehicles to avoid
further suspicion," and that this evidence supports a "continuing
plan to transport controlled substances from the Dominican
Republic to Puerto Rico in the radiator of his vehicle." The
government explained that it anticipated that Agramonte would
"raise the matter of his mental condition, and lack of awareness
or understanding" that he was smuggling drugs, and maintained that
the evidence should be admitted pursuant to Federal Rules of
Evidence 404(b) and 403.
4. The Pretrial Order on Rule 404(b) Evidence
On October 18, 2019, the district court granted the
government's motion to admit Rule 404(b) evidence of the December
- 8 -
10 incident. The district judge, relying on and citing Rule
404(b), concluded that evidence of the December 10 incident was
admissible to prove "state of mind, preparation, plan, knowledge,
intent[,] modus operandi, absence of mistake or lack of accident."
Agreeing with Agramonte that this evidence could not be used as
evidence that he committed a crime on December 10, the district
court limited the testimony to "indicating that the K-9 alerted
positive consistent with its training and the results of any
secondary inspection by law enforcement agents was negative."
5. The Rule 404(b) Evidence at Trial
At trial, the government presented the testimony of CBP
Officer Arnaldo Carmona, who was present for both the December 10
and December 28 incidents, and CBP Canine Enforcement Officer
Javier Quiles, Baku's handler on December 10. Iglesias and Quiles
testified substantially to the events on December 10, 2018
described above.
6. The Closing Arguments on the Rule 404(b) Evidence
In its closing, the government summarized the law
enforcement testimony linking the December 10 and December 28
incidents, "[b]oth of them including and involving this defendant.
Both of them involving two different vehicles, but Ford Econoline
vans. And both of them involving a positive alert from the canine
of narcotics." The government continued:
- 9 -
First one, got lucky. He got lucky. But the
second one, members of the jury, the second
one, that the agents were actually able to
remove the radiator, that one, that's where we
know exactly what the defendant was doing.
That's where we know exactly what this
defendant intended to do on December 28, 2018.
In response, the defense stressed that on December 10,
2018, even though Baku alerted to Agramonte's van, CBP did not
find any drugs. Defense counsel observed that the officers spent
more than three hours trying to remove the radiator on December 10
but could not do so. The defense also reminded the jury that,
even though the CBP officers were sure that Agramonte had drugs in
his van on December 10, they let him go.
During its rebuttal closing argument, the government
again framed the December 10 incident:
Now, the incident about December 10, that's
just a tool, members of the jury. That's just
a tool for you to be able to assess and look
at it and reasonably infer what the defendant
intended to do on December 28. That shows
that this isn't a mistake, this isn't an
accident. This shows that this defendant knew
what was happening. This shows that the
defendant intended to commit this crime, or
both crimes, rather.
Now, it's clear, the witnesses did not say the
canine is a hundred percent effective. What
they said is they give positive alerts, and
there are no false positives in the field,
because the odor can actually be there. The
only time you can get a false positive is in
a sterile environment. And this 1995 yellow
Ford Econoline van is not a sterile
environment. And so the dog detected the odor
- 10 -
of narcotics on that vehicle. That's what
we're saying.
And then we asked that you draw the next step
of the conclusion. You connect the dots.
Detected an odor of narcotics on December 10,
and then detected an odor of narcotics on
December 28. And on December 28, this car was
loaded with kilograms of cocaine.
7. The Jury Instruction on Rule 404(b) Evidence
In its jury instructions, the district court delivered
a Rule 404(b) limiting instruction,2 telling the jury that it could
not use evidence of similar acts to infer that "because of his
character, defendant carried out the acts in this case" and that
2 The district court's Rule 404(b) instruction read:
You may consider such evidence only for the
limited purpose of deciding whether the
defendant had the state of mind or intent
necessary to commit the crime charged in the
Indictment, or whether the defendant had a
motive or the opportunity to commit the acts
charged in the Indictment, or whether the
defendant acted according to a plan or in
preparation for commission of a crime, and
whether the defendant committed the acts he is
on trial for by accident or mistake.
Remember, this is the only purpose for which
you may consider evidence of defendant's prior
similar acts. Even if you find the defendant
may have committed similar acts in the past,
this is not to be considered as evidence of
character to support an inference that
defendant committed the acts charged in this
case.
Although Agramonte objected to the admission of Rule 404(b)
evidence, he did not object to the language of this instruction at
trial and has not challenged the wording of the Rule 404(b)
instruction on appeal.
- 11 -
it could only use evidence of the prior similar act to decide
whether Agramonte had the requisite state of mind or intent, had
a motive or opportunity to commit the offense, "acted according to
a plan or in preparation for commission" of the offense, or
committed the offense "by accident or mistake."
B. The Lay Opinion Testimony of Agent Fernández
1. The Pretrial Motions Regarding Agent Fernández's
Testimony
On October 16, 2019, the government announced its intent
to introduce the expert witness testimony of Homeland Security
Investigations ("HSI") group supervisor and Special Agent Yuany
Fernández.3 The government represented that Agent Fernández, who
had experience in narcotics operations and interventions, would
testify about the wholesale and street value of cocaine and the
manner and methods of drug trafficking organizations' operations,
including the use of knowing and unknowing couriers.
On October 17, 2019, Agramonte filed motions in limine
and a motion for a continuance so he could review the government's
latest disclosures and possibly retain a canine expert. In his
first motion to exclude Agent Fernández's testimony, Agramonte
submitted his "blind mule" theory, citing recent headlines in which
3 To be more precise, the government provided Special Agent
Fernández's expert designation in an excess of caution, taking the
position that First Circuit law does not require an expert
designation for law enforcement officers in these circumstances.
- 12 -
people were tricked into or unaware of carrying contraband into
the United States. Agramonte objected to Agent Fernández providing
so-called "overview testimony." Agramonte also urged the district
court to exclude evidence from the government's "discovery
'dump/disclosure'" in part because the government filed its
amended designation on October 17, 2019, one day after the court-
imposed October 16, 2019 deadline for an amended designation of
evidence.
On October 20, 2019, Agramonte filed an additional
motion in opposition to Agent Fernández testifying as a lay witness
opinion, insisting his proposed testimony "constitutes an
inadmissible form of expert opinion evidence." Agramonte argued
that Agent Fernández would impermissibly opine on the "ultimate"
jury issue of knowledge and scienter, and moreover that his
testimony would be unnecessary and unduly prejudicial.
2. The District Court's October 18, 2019 Order
On October 18, 2019, the district court issued an order
denying Agramonte's motion in limine to exclude any evidence
produced in the government's late designation, finding that
Agramonte did not and could not assert prejudice from the
government's filing 10 minutes after the October 16 midnight
deadline. The district court also denied Agramonte's request for
continuance, reasoning that the defense team's busy trial schedule
was not a good enough reason to warrant a continuance and that any
- 13 -
government disclosure delays were minor.4 Finally, the district
court denied Agramonte's motion in limine as to Agent Fernández,
noting that "[n]othing within the [government's] proffer suggests
that Agent Fernández will be among the first witnesses to be called
or that his testimony will be an 'overview testimony,'" rather
than that of a lay witness admissible under Federal Rule of
Evidence 701. The district court cautioned:
Of course, the government will have to lay
proper foundations as to the agent's years of
service, field work, and investigation
conducted which constitutes the basis of any
such knowledge of drug trafficking practices
and modus operandi. Similarly, any testimony
as to "knowing and unknowing" couriers, if
relevant, is expected to have relevance to the
factual scenario of the case, that is to
general practices in local borders and not
anywhere else. While so testifying, the
witness may not engage in conclusory opinions
and determinations as to an element of the
offense or defendant's culpability.
3. The Trial Testimony of Agent Fernández
On the third day of trial, the government called Agent
Fernández as its last witness. After describing his eighteen years
of border patrol and law enforcement work experience, and the
4 The government filed its amended designation of evidence on
October 17, 2019 at 0:10 AM AST. In his motion in limine, Agramonte
argued that "[a]ll discovery or evidence that was provided today
[October 17] should be excluded as being late." On October 18,
2019, the district court denied his request, reasoning that
"[w]hile it is true that the government filed during morning hours
(00:10 a.m.) of October 17th, 2019, it is also true that the
defense cannot and has not asserted prejudice from a filing made
10 minutes after midnight."
- 14 -
extent of his undercover training in the narcotics field, Agent
Fernández explained his current role as an undercover group
supervisor with Homeland Security and spoke generally about
confidential informants, controlled buys, and other means of
infiltrating trafficking operations. Agent Fernández also
described how cocaine "bricks" are wrapped and transported and
summarized CBP's criteria and protocols in conducting vehicle
searches.
After the court sustained Agramonte's objections to the
Agent's testimony about the specifics of cocaine production, Agent
Fernández proceeded to focus on how cocaine travels to Puerto Rico,
laying out different trafficking pathways. He explained his
understanding, based on years of work undercover and with
confidential informants, of how drug packages can be hidden inside
a vehicle and of the street and wholesale value of cocaine in
Puerto Rico. Agent Fernández explained why traffickers use
couriers they know and trust, and how these couriers are typically
compensated. He also described generally that traffickers use
"test runs" of planned routes or deliveries, to check for law
enforcement or other potential problems.
The government's questions on direct examination raised
themes and factual circumstances similar to those in Agramonte's
case, particularly the Agent's mention of "dry runs" and hidden
vehicle compartments, and his specific estimation of the street
- 15 -
value of thirteen kilograms of cocaine. However, Agent Fernández
did not comment on Agramonte's specific charges, whether Agramonte
knew or must have known about the cocaine in his van, or
Agramonte's guilt. On direct examination, Agent Fernández was not
asked about Agramonte's case. On cross-examination, Agent
Fernández acknowledged that he had no relationship with Agramonte
and had never met him.
C. Agramonte's Competency at Sentencing
1. Dr. Romey's Mental Health Evaluation
At a March 6, 2019, status conference, Agramonte's
counsel informed the district court that "this case presents some
mental health issues, which might not be sufficient to exclude my
client's criminal liability" but would otherwise impact
Agramonte's defense.
On July 10, 2019, Agramonte filed a mental health
evaluation report dated March 12, 2019, prepared by clinical
psychologist Dr. Carol Romey. According to Dr. Romey's report,
Agramonte scored extremely low for cognitive functioning, short
term memory, and visual motor coordination skills and
competencies. Dr. Romey classified his I.Q. as "Extremely Low"
and noted that Agramonte had limited understanding of risk and was
at risk of being manipulated by others. Dr. Romey diagnosed
Agramonte with "Intellectual Disability, Mild" and concluded:
- 16 -
Regarding mental competency, Mr. William
Agramonte is able to understand legal
proceedings and collaborate with defense. He
demonstrates serious short-term memory
difficulties such that he will need to be
advised in a repetitive manner, given simple
instructions, and provided close monitoring of
his comprehension.
2. The Pretrial Matters Regarding Competency
On July 11, 2019, at a status conference before the
district judge, defense counsel indicated that the defense might
present two witnesses and it had already provided the government
with a copy of Dr. Romey's report. On October 9, 2019, Agramonte
filed a brief notice of intent to use evidence in connection with
his mental condition, specifically to present the testimony of Dr.
Romey.
At the October 11, 2019 pretrial conference, the
government objected to Dr. Romey's potential testimony regarding
Agramonte's mental condition. The government requested leave to
obtain a summary of Dr. Romey's testimony and her curriculum vitae
and indicated that it would seek to retain an expert for an
independent evaluation of Agramonte. The defense responded that
Dr. Romey would address Agramonte's diminished capacity and that
Dr. Romey's expert report had been timely disclosed to the
government. The district judge noted that the defense's October
9, 2019 notice of intent to use Dr. Romey's testimony did not
comply with Federal Rule of Criminal Procedure 12 and had to be
- 17 -
re-filed with appropriate notice of the scope of her testimony and
her curriculum vitae. The district judge ordered the defense to
file this additional notice by October 16, 2019. Agramonte did
not file any additional information concerning Dr. Romey and did
not call Dr. Romey as a witness at trial.
3. Agramonte's PSR and Sentencing Memorandum
Before the sentencing hearing, the United States Office
of Probation and Pretrial Services ("PO") prepared Agramonte's
revised Presentence Investigation Report ("PSR"). In the PSR, the
PO observed that Agramonte himself reported having low
intelligence as a result of medical conditions he suffered as a
child. Recounting Dr. Romey's assessment of Agramonte's "mild
intellectual disability," the PO noted her finding that he is still
able to understand legal proceedings and collaborate with the
defense. The PO stated that Agramonte demonstrated serious short-
term memory difficulties, needs to be advised in a repetitive
manner and given simple instructions, and that his comprehension
needed to be monitored. The PSR stated that Agramonte completed
the fourth grade and is illiterate except for an ability to read
several words. The PO cited Agramonte's "mild intellectual
disability" as a potential basis for a discretionary variance
pursuant to 18 U.S.C. § 3553(a).
In his sentencing memorandum, Agramonte requested a
sentence of sixty months, below the one-hundred-twenty-month
- 18 -
mandatory minimum, citing his intellectual disabilities and
personal characteristics and arguing for a diminished capacity
departure under U.S.S.G. § 5K2.13. He also contended that a ten-
year mandatory minimum sentence would be excessive and
inconsistent with the § 3553(a) factors.
4. Agramonte's Sentencing
On February 27, 2020, Agramonte appeared before the
district court for sentencing. At the outset of the hearing,
defense counsel raised the issue of Agramonte's competency,
informing the court:
[T]his defendant just now . . . [told counsel]
some things that showed me that he did not
quite still grasp that he [] actually was
found guilty, and that there is a mandatory
minimum that applies. I explained all that to
him. I explained the provisions of the safety
valve numerous times to this defendant.
Somehow I still get the feeling that he may,
according to what he has told me, may not quite
have grasped the consequences of his decision
or indecision regarding these matters.
The district judge then engaged directly with Agramonte,
asking him if he remembered meeting with the PO and discussing his
PSR with counsel. Agramonte told the district judge "I needed a
person that could explain to me, because I have never been in
prison and I have never been in court. And I didn't know what a
trial was. I needed someone to explain it to me." He went on to
say "I wanted to plead guilty" and "I don't know what a sentence
is."
- 19 -
This interchange prompted the district court to inquire
further. After the district judge explained what a PSR is, and
confirmed that Agramonte had reviewed his PSR with his lawyer,
Agramonte reiterated that he did not "know really what is
presentence, what is a trial, what is to plead guilty. I don't
know." The judge then said:
Okay. I saw your demeanor in the trial,
because you were sitting right to my left in
front of me. And it seems to me, as the
witness testified, you were able to react and
tell your attorney about things, what
happened, what happened at the ferry. And you
were following.
So tell me if you - - if that is so, that you
wanted to plead guilty from the beginning, why
is it that you ended up in a trial?
Agramonte responded:
I finished at a trial, because I saw it on TV,
and that's what my mind told me to do.
The judge responded: "So you chose to follow a TV play than your
counsel's advice? Is that what you're telling me?" Agramonte
replied: "Yes." The judge remarked to Agramonte that she had to
decide what his sentence will be "because there is a trial," at
which point Agramonte interjected, "I am clear on that." At this
point, the district court explained to Agramonte:
The jury found you guilty of having engaged in
an offense, which of course is a drug offense,
possessing illegally with intent to distribute
over 13 kilos of cocaine that were found
concealed in the radiator of your van. And of
course you know how you were arrested and
everything that the witnesses for the
- 20 -
government said, because you sat here every
single day of trial with an interpreter. And
that's when I saw you reacting. And you saw
all the pictures that were presented, all
elements, everything that happened. And
actually, I remember that when the government
was talking about the prior time or occasion
in which you were stopped in a van, I saw you
reacting and talking to one of the three
attorneys that were on the defense table. So
it seems to me that you were following the
evidence.
So be it as it may, I would like to know if
there's anything you have to say here and that
you would like me to consider before sentence
is imposed?
In response, Agramonte allocuted before the district
judge. Agramonte asked the judge to "take me to your
consideration." Agramonte reiterated that he is illiterate and
told the judge that he had not dared to speak earlier, although he
wanted to. He said that he had been "confused of what [his] mind
thought," and he had never been in a trial or in prison before.
Next, before the government presented its sentencing
recommendation, it challenged the defense's characterization of
Agramonte's disabilities, arguing that his successful completion
of the multi-step process to take commercial trips between the
Dominican Republic and Puerto Rico spoke to his "ability to
comprehend what he was doing." The government suggested that
Agramonte's renewed competency concerns were merely perpetuating
"the arguments and the overlying theme of the defense . . . that
- 21 -
'my client was too naive or too gullible, or too . . . mentally
disabled.'"
After hearing from the parties, the judge concluded:
Because I have heard here about mental
impairments, but actually, Dr. Romey found him
competent, able to understand the legal
proceedings and collaborate with the defense,
which actually I saw during the trial.
There's an indication that he could have short
term memory difficulties, and that he needed
to be advised in a repetitive manner. But
aside from that, he was found completely
competent. So the issue of competence was
addressed, was taken care of by the defense on
the record. And it seems that Dr. Romey's
finding as well, when she says he's able to
follow instructions. The jury found him
guilty. Certainly his behavior during trial
was I will say proper, consistent with
instructions of counsel. That is so. He was
able to receive advice from counsel. And at
least there's that report on record. So I
don't have any determination as to whether he
has a definite diagnosis with an impairment
that will have a name or a classification.
III. Discussion
A. The Evidence of the December 10, 2018 Incident
Agramonte first contends the district court abused its
discretion by admitting evidence of the factually similar December
10 canine alert, which took place eighteen days before the canine
alert that prompted the drug search underlying the instant charges.
He urges that the prior canine alert evidence should have been
excluded under Federal Rules of Evidence 404(b) and 403 and because
- 22 -
the government violated discovery obligations with its delayed
production of the canine training logs.
We review challenges to a court's rulings on delayed
disclosure and to admit evidence pursuant Rules 404(b) and 403 for
abuse of discretion. Clukey v. Town of Camden, 894 F.3d 25, 34
(1st Cir. 2018); United States v. Moon, 802 F.3d 135, 144 (1st
Cir. 2015); United States v. Varoudakis, 233 F.3d 113, 118 (1st
Cir. 2000); United States v. Josleyn, 99 F.3d 1182, 1196 (1st Cir.
1996). In evaluating the admission of "other-acts" evidence, "[w]e
afford 'great deference to a district judge's balancing of
probative value versus unfair prejudice.'" Moon, 802 F.3d at 144
(quoting United States v. Breton, 740 F.3d 1, 14 (1st Cir. 2014)).
1. The Canine Evidence Discovery Delays
Citing Federal Rule of Criminal Procedure 16 and
Josleyn, 99 F.3d at 1196, Agramonte challenges the admission of
all canine alert evidence because of the government's delayed
disclosure of the canine training logs for Honzo and Baku. On
October 11, 2019, Agramonte requested access to the canine training
logs and evaluations, but the government did not produce them until
October 17, after the district court's October 16 deadline had
passed. He urges that because "[i]nformation useful to impeach
prosecution witnesses is material," the district court should have
assessed "whether the defendant was denied the opportunity to use
- 23 -
the disclosed evidence effectively." See United States v. Osorio,
929 F.2d 753, 758 (1st Cir. 1991).
Citing United States v. Wicker, 848 F.2d 1059, 1061 (10th
Cir. 1988), Agramonte asserts on appeal that if the district court
had fully evaluated "whether or not the government acted in bad
faith when it failed to comply with the discovery order; . . . the
extent of prejudice to the defendant as a result of the
government's delay; and . . . the feasibility of curing the
prejudice with a continuance," it would have excluded the evidence
or at least granted him a continuance to arrange for his own canine
experts. Agramonte argues that he was prevented from meaningfully
countering what he calls the government's "infallible dog's alert"
theory at trial.
Agramonte's challenge fails for two reasons. First,
"some showing of prejudice beyond mere assertion is required in
the delayed disclosure context." United States v. Pérez-Ruiz, 353
F.3d 1, 8 (1st Cir. 2003) (citing United States v. Smith, 292 F.3d
90, 103 (1st Cir. 2002); United States v. Walsh, 75 F.3d 1, 8 (1st
Cir. 1996)). Second, "a delayed disclosure only leads to the
upsetting of a verdict when there is a reasonable probability that,
had the evidence been disclosed" in a timely manner or the defense
granted a continuance, "the result of the proceeding would have
been different." Id. at 8-9 (citing United States v. Bagley, 473
U.S. 667, 678 (1985)). Agramonte relies on the Tenth Circuit's
- 24 -
three-part test instructing district courts to examine the
government's reasons for the delay, the extent of any prejudice
from the delay, and the feasibility of curing the prejudice with
a continuance. See Wicker, 848 F.2d at 1061. We have never
adopted Wicker, but without a showing of bad faith or prejudice
from the delay, Agramonte's challenge fails even under the Tenth
Circuit's standard.
Agramonte correctly cites Rule 16 as encouraging strict
compliance with discovery obligations, however Rule 16 also
empowers district judges to use their discretion in enforcing those
obligations. We conclude that the district court did not abuse
its discretion in finding a continuance was unwarranted, as the
canine training logs and related certification letters amounted to
only six pages and the government disclosed copies of Honzo's
annual CBP certification on August 21, 2019 and Baku's annual CBP
certification on October 4, 2019. See Pérez-Ruiz, 353 F.3d at 9(upholding denial of a continuance where late-disclosed "records
were neither voluminous nor arcane, . . . defense counsel had
roughly thirty-six hours in which to scrutinize them before he
brought the matter to the forefront," and defense counsel was
offered the opportunity to extensively cross-examine the witness);
Josleyn, 99 F.3d at 1196.
Agramonte submits that his ability to challenge the
accuracy of Baku's December 10 alert was compromised without
- 25 -
earlier access to specific training records and that the
government's late disclosure prevented the defense from obtaining
its own canine expert. However, long before receiving the logs on
October 17, 2019 Agramonte could have sought an expert once he
knew that the government intended to introduce canine evidence at
trial. Agramonte is correct that "a defendant must have an
opportunity to challenge such evidence of a dog's reliability,
whether by cross-examining the testifying officer or by
introducing his own fact or expert witnesses." Florida v. Harris,
568 U.S. 237, 247 (2013). But Harris does not require that
defendants necessarily introduce their own competing experts on
canine reliability, as Agramonte requested a continuance (in part)
to do. There are multiple ways in which a defendant's opportunity
to challenge canine evidence may be satisfied. Id. ("The
defendant, for example, may contest the adequacy of a certification
or training program, perhaps asserting that its standards are too
lax or its methods faulty. So too, the defendant may examine how
the dog (or handler) performed in the assessments made in those
settings.").
When Agramonte cross-examined the CBP canine handlers at
trial, he questioned them about the canines' training tests,
records, and inspection history. In his closing argument,
Agramonte again challenged the canines' accuracy and the handlers'
testimony about "non-productive alerts," arguing that Baku's
- 26 -
December 10 alert was a false positive. The government objected
to Agramonte's contention that the CBP handler called his dogs one
hundred percent accurate, but the district court allowed the jury
to consider Agramonte's characterization of the canine evidence.
Agramonte has not met his burden to show how any delay in the
government releasing the canine training records made his defense
less effective.
2. The December 10th Incident as Rule 404(b) Evidence
Rule 404(b) governs the admissibility of "crimes,
wrongs, or acts" other than those for which the defendant currently
stands trial. Fed. R. Evid. 404(b). While such evidence is "not
admissible to prove a person's character in order to show that on
a particular occasion the person acted in accordance with the
character," it "may be admissible for another purpose, such as
proving motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident." Id.We have explained that admission of "other-acts"
evidence requires the trial judge to conduct an initial "two-step
analysis," by first determining "whether the evidence has a
'special relevance' in that it is offered not to show a defendant's
evil inclination but rather to establish some material fact."
United States v. Tkhilaishvili, 926 F.3d 1, 15 (1st Cir. 2019)
(quoting Veranda Beach Club Ltd. P'ship v. W. Sur. Co., 936 F.2d
1364, 1373 (1st Cir. 1991)). "If the trial court finds sufficient
- 27 -
relevance, the next step requires that it gauge probative weight
against prejudicial effect," pursuant to Rule 403. Id. (quoting
Veranda Beach, 936 F.2d at 1373).
a. Rule 404(b) Special Relevance
Assuming that Rule 404(b) applies to evidence of the
December 10 canine alert, the district court did not abuse its
discretion in concluding that evidence of the December 10 incident
had special relevance to the jury's understanding of the December
28 incident. As the government explained in its notice of intent
and at trial, evidence of the December 10 incident was admissible
for multiple purposes under Rule 404(b): to show that Agramonte
(1) had the opportunity and intent to hide narcotics in a custom-
modified Ford Econoline, with the same "red flags" of non-factory
welding marks, fresh paint, and an abnormally large radiator; (2)
undertook preparations to conceal and transport cocaine via the
same route; (3) had a common plan to use the radiator of a Ford
Econoline van to hide cocaine; and (4) had knowledge that CBP
officers were suspicious of his yellow van on December 10,
regardless of the accuracy of the alert that triggered their
unsuccessful attempts to remove the radiator. The two events were
highly factually similar, involving the same defendant, traveling
exactly the same ferry border crossing route from the Dominican
Republic to San Juan, under similarly last-minute arrangements
only eighteen days apart. See United States v. Raymond, 697 F.3d
- 28 -
32, 38 (1st Cir. 2012) (stating that in determining whether
evidence has "special relevance to an issue in the case such as
intent or knowledge," we consider "the timing of the proffered bad
act and its degree of resemblance to the conduct charged in the
case" (quoting Varoudakis, 233 F.3d at 118)).
Agramonte's knowledge of the cocaine found in his
radiator was the pivotal issue in dispute at trial because
Agramonte had posited the "blind mule" theory of defense,
challenging the government to prove that he had the knowledge and
intent to commit these crimes and was not an unsuspecting dupe of
drug traffickers. The December 10 incident was highly probative
in responding to the "blind mule" defense because the events were
so similar that a jury who wished to acquit would have to conclude
that Agramonte was duped not once but twice. The December 10
evidence was also relevant to the jury in assessing Agramonte's
state of mind, preparation, plan, modus operandi, absence of
mistake, or lack of accident.
Agramonte attempts to distinguish United States v.
Agudelo, 988 F.2d 285 (1st Cir. 1993), and United States v.
Rosario-Peralta, 199 F.3d 552, 562 (1st Cir. 1999), reasoning that
"[i]n those cases, the canine alert was only part of the evidence
offered to establish presence and possession of drugs regarding
the charged crime." Agramonte submits that here, the canine alert
was the "primary evidence" upon which the government asserted
- 29 -
knowledge and the presence of drugs, relying on impermissible
propensity reasoning to do so. To the contrary, the narrative of
the December 10 incident, which helped the government meet its
burden as to Agramonte's knowledge, involved more than just the
alert. The alert helped the jury to assess and make sense of the
government's other evidence of Agramonte's knowledge, namely (1)
the amount of cocaine found, which the government argued was far
too valuable for a trafficking operation to hide in a stranger's
car and would only be entrusted to someone who was in on the
trafficking operation, and (2) the ferry protocols and setup, which
the government presented to suggest that it would have been nearly
impossible for someone to access Agramonte's van, modify the
radiator, and stash drugs there without being detected.
Furthermore, the circumstances of the December 10 trip
reflected similarities with Agramonte's December 28 trip aside
from the canine alerts, namely comparable CBP "red flags." Both
incidents involved similarly modified vans, with unusually large
radiators, weld marks, and fresh paint, and last-minute
arrangements to transport low value items that did not seem worth
the travel costs. His change in vehicle, after his yellow van was
flagged by CBP only shortly after he acquired it, suggests that
Agramonte's participation on December 10 and December 28 was
prearranged, indicating motive and a continuing plan.
- 30 -
To rebut Agramonte's contention that the drugs were
planted in his van during the ferry ride, the government pointed
to how Agramonte drove a similar van with the same modifications
before to show that, although CBP did not find anything on December
10, the incident alerted Agramonte to law enforcement scrutiny and
made his innocent victim explanation less likely. See United
States v. Landry, 631 F.3d 597, 602 (1st Cir. 2011) ("This circuit,
and others, have admitted evidence under Rule 404(b) to rebut a
defense of innocent involvement."). The December 10 incident
therefore had special, non-propensity relevance to help the jury
assess Agramonte's knowledge, plan, absence of mistake, or lack of
accident when CBP found drugs in his van on December 28.
In United States v. Centeno-González, we affirmed the
district court's decision to admit Rule 404(b) evidence of a prior
arrest involving concealed firearms because "knowledge and lack of
mistake were directly at issue." 989 F.3d 36, 51 (1st Cir. 2021).
At trial, the defendant claimed "that he did [not] know there was
a hidden compartment that contained firearms and that someone else
had hidden the firearms in the vehicle." Id. The government
wanted "to show that [the defendant] engaged in a specific pattern
of storing firearms in hidden vehicle compartments and, therefore,
would have likely been aware that there was a firearm hidden" in
the car he was driving. Id. We found the Rule 404(b) requirements
satisfied because "evidence relating to [defendant]'s prior
- 31 -
conviction went directly to the question of his knowledge or lack
of mistake rather than to his propensity toward criminal activity."
Id. We further found that the prior conviction was not unfairly
prejudicial because the government's witness was subject to cross-
examination about the prior event, "defense counsel was given the
opportunity to argue that the prior [incident] was not, in fact,
probative of [defendant]'s knowledge," and "[t]he government's
closing illustrate[d] that it utilized the bad act evidence in
tight keeping with the special relevance upon which it had been
admitted." Id.We reach the same conclusion here. The government
reminded the jury in its closing argument that the December 10
alert was not evidence of a crime in itself, but "a tool" to
evaluate whether the fruitful CBP search was due to mistake or
accident and assess whether Agramonte was a blind mule or knew
drugs were hidden in his van radiator on December 28.
b. Rule 403 Unfair Prejudice
Finally, the challenged "other-acts" testimony survives
Rule 403 balancing. We have cautioned that "even when initially
consistent with Rule 404(b), prior bad act evidence may become
troublesome if the evidence itself is unfairly prejudicial or if
it is admitted in excess or misused by the government over the
course of the trial." Centeno-González, 989 F.3d at 51. We have
- 32 -
explained that "[t]here is clearly a tension between Rules 404(b)
and 403," Varoudakis, 233 F.3d at 123, as:
The more similar the prior bad act evidence is
to the charged crime, the more likely it is to
be deemed relevant under 404(b). Yet the more
the prior bad act resembles the crime, the
more likely it is that the jury will infer
that a defendant who committed the prior bad
act would be likely to commit the crime
charged. See United States v. Beechum, 582
F.2d 898, 915 n.20 (5th Cir. 1978) ("the more
closely the extrinsic offense resembles the
charged offense, the greater the prejudice to
the defendant"). This is precisely the kind
of inference that Rule 403 guards against.
See [United States v. Lynn, 856 F.2d 430, 436
(1st Cir. 1988)] ("The ordinary inference here
would seem very close to the inference the
Rule was designed to avoid.").
Id.Here, the district court found on the record that this
evidence was not unfairly prejudicial. In doing so, the court
carefully instructed the parties that evidence of the December
10th incident "will not go beyond indicating that the K-9 alerted
positive consistent with its training and the results of any
secondary inspection by law enforcement agents was negative." The
district court need not have elaborated on its Rule 403 balancing.
See García-Sierra, 994 F.3d at 32 ("Although the court did not do
so explicitly, the record indicates that the court performed the
requisite [Rule 403] balancing implicitly.") (citing Breton, 740
F.3d at 15 ("[T]he absence of an express Rule 403 finding . . .
- 33 -
does not mean the district judge failed to perform this
analysis.")).
The district court did not abuse its discretion in
concluding that any risk of unfair prejudice from the December 10
alert did not substantially outweigh its high probative value due
to its factual similarity to the December 28 incident and the
government's need for evidence of Agramonte's knowledge. For
example, the December 10 incident is distinguishable from the prior
drug-smuggling activity deemed admitted in (harmless) error in
García-Sierra. There, we reasoned that the other-acts evidence
was "not straightforwardly connected to" the defendant, its
"permitted use . . . was much less natural and intuitive than the
forbidden propensity use, adding to the danger of unfair
prejudice," and "this prejudice and confusion was not mitigated by
the instructions provided to the jury." García-Sierra, 994 F.3d
at 32-34.
We have repeatedly emphasized the jury impact of the
government's closing characterization of "other-acts" evidence and
the related mitigating effect of a Rule 404(b) limiting
instruction. See id.; United States v. Santana, 342 F.3d 60, 67
(1st Cir. 2003) (finding that, although evidence of earlier drug
dealing was separated by a significant length of time and "was
prejudicial to [defendant,] it was not an abuse of discretion . . .
to find that the prejudice did not substantially outweigh the
- 34 -
testimony's probative value" given the significant factual
similarity to the charged crime and the trial court's careful
limiting instruction); United States v. Arias-Montoya, 967 F.2d
708, 714 (1st Cir. 1992) (stating that it was harmless error for
the district court to have admitted defendant's prior conviction
because of "the strength of the government's case without the bad
act evidence," the prosecutor's failure to reference the prior bad
act during the remainder of trial or in his closing, and the
district court's instruction that the jury should limit the weight
given to the prior conviction); see also United States v. Henry,
848 F.3d 1, 10 (1st Cir. 2017) ("Moreover, although the similarity
between Henry's prior drug conviction and the charged drug crime
presents a risk that the jury might draw an impermissible inference
of propensity, the court addressed that risk with a limiting
instruction.").
Here, the government's characterization of the December
10 incident in its opening and closing arguments was consistent
with its notice of intent to use evidence of the prior canine alert
pursuant to Rule 404(b) to (1) counter Agramonte's anticipated
defense that he was unaware that cocaine was hidden in his van on
December 28, and (2) show a continuing plan and a motive to switch
vehicles to avoid law enforcement suspicion.
Agramonte is correct that the degree of similarity
between the canine alerts increased the related risk of propensity
- 35 -
reasoning. See United States v. DeCicco, 370 F.3d 206, 213 (1st
Cir. 2004) ("[T]here is always some danger that the jury will use
[Rule 404(b) other act] evidence not on the narrow point for which
it is offered but rather to infer that a defendant has a propensity
towards criminal behavior." (alterations in DeCicco) (quoting
United States v. Trenkler, 61 F.3d 45, 56 (1st Cir. 1995))).
Agramonte fails, however, to show "unfairness sufficient to
counteract [the] substantial probative value" of the December 10
alert, particularly as the district court limited the scope of the
evidence to testimony that the canine alerted but that no drugs
were found and the district judge delivered a 404(b) limiting
instruction. Raymond, 697 F.3d at 39; see United States v. Owens,
167 F.3d 739, 756 ("[O]ur system of trial by jury is premised on
the assumption that jurors will scrupulously follow the court's
instructions . . . .").
The district court did not abuse its discretion in
admitting testimony regarding the December 10 incident. The
testimony recounting the December 10 alert fell squarely within
both "foundational requirements for Rule 404(b) evidence."
Raymond, 697 F.3d at 38 (stating that 404(b) evidence must have
"special relevance" and also "pass through the filter of Federal
Rule of Evidence 403"). Here, "the proffered evidence was
specially relevant" as the defendant maintained that his conduct
was accidental or unknowing and "the evidence tended to show the
- 36 -
absence of mistake." Id. (upholding admission of a prior bad act
as "the testimony was not introduced to prove that the defendant
was a predator but, rather, to shed light upon his intent" when he
committed the acts charged). The special relevance of the December
10 canine alert is bolstered by the fact that "the events
chronicled in the challenged testimony were not only proximate in
time, but also bore a strong resemblance to the charged conduct."
Id. at 38-39. Furthermore, it was within the district court's
discretion to find that the probative value of the prior alert was
not substantially outweighed by any unfair prejudice, and to allow
the evidence in despite minor discovery delays.
B. The Testimony of Agent Fernández
Agramonte next argues that HSI Agent Yuany Fernández's
testimony, offered at the close of the government's case regarding
how drug trafficking organizations operate in Puerto Rico, how
they smuggle drugs across the border, and how they choose couriers
that they know and trust, was inadmissible law enforcement
"overview" testimony. He claims the district court abused its
discretion by admitting this testimony, which he deems the only
"other indirect evidence of knowledge" aside from the December 10
canine alert. Agramonte cites cases in which we viewed overview
testimony as problematic. See United States v. Rodríguez, 525
F.3d 85, 95 (1st Cir. 2008); United States v. García-Morales, 382
F.3d 12, 16 (1st Cir. 2004); United States v. Casas, 356 F.3d 104,
- 37 -
119-20 (1st Cir. 2004). We find these cases inapplicable because
Agent Fernández's testimony was not "overview" testimony.
1. Law Enforcement Testimony as Overview Testimony
"Overview testimony refers to the use of a witness to
'map out [the government's] case and to describe the role played
by individual defendants.'" United States v. Pérez-Vásquez, 6
F.4th 180, 199 (1st Cir. 2021) (alteration in Pérez-Vásquez)
(quoting United States v. Flores-de-Jesús, 569 F.3d 8, 16 (1st
Cir. 2009)). "Such testimony is improper because it may describe
evidence that never materializes and, if the witness is a
government agent, may lend the imprimatur of government to a later-
testifying witness." Id."Testimony by a law enforcement agent constitutes
impermissible 'overview' testimony when it effectively opines that
a defendant is guilty 'based on the totality of information
gathered' in the agent's investigation, rather than relaying the
agent's first-hand experiences and observations." García-Sierra,
994 F.3d at 26 (quoting United States v. Meises, 645 F.3d 5, 15
(1st Cir. 2011)). "[H]aving [an agent] so testify amount[s] to
simply dressing up argument as evidence." Id. at 27 (alterations
in García-Sierra) (quoting Meises, 645 F.3d at 17). Also, "to the
extent such testimony is a 'preview of other witnesses' testimony,'
it functions as an endorsement by the government of the first-hand
witness's account, thereby impermissibly bolstering that witness's
- 38 -
credibility." Id. (quoting Meises, 645 F.3d at 17). "While there
is no 'blanket ban on all overview testimony,'" United States v.
Reyes, 24 F.4th 1, 22 (1st Cir. 2022) (quoting United States v.
Etienne, 772 F.3d 907, 914 (1st Cir. 2014)), "such testimony is
'[d]isfavored' in the drug conspiracy context where a law
enforcement agent 'based on the results of the agency's overall
investigation, rather than on his own personal knowledge or
participation' 'testif[ies] about a defendant's specific role in
[a] charged conspiracy,'" id. (alterations in Reyes) (quoting
Etienne, 772 F.3d at 913-14).
Agent Fernández's testimony meets none of the criteria
for problematic overview testimony. First, his testimony came at
the end, not the beginning, of trial and did not anticipate later
testimony. Second, Agent Fernández did not "map out" the
government's case or "dress up" the government's argument as
evidence. To the contrary, as Agramonte's counsel revealed on
cross-examination, Agent Fernández had no personal knowledge of
the facts in Agramonte's case and the government never proffered
him as a witness with such knowledge.
Third, as Agent Fernández was not aware of and did not
testify about the government's investigation in this case, it
follows that he did not bolster other witnesses' testimony. In
fact, Agent Fernández admitted that he became aware that he would
be a witness in the Agramonte trial only one week before the trial
- 39 -
itself and, before that time, he had no participation in the
Agramonte case at all. Fourth, Agent Fernández did not testify
about what other law enforcement agents knew about the Agramonte
investigation. Agent Fernández confirmed on cross-examination
that, although he had testified on direct examination about
controlled deliveries and the use of informants, he was not aware
of any controlled deliveries or informants in Agramonte's case.
Instead, Agent Fernández testified about his general personal
knowledge as a law enforcement officer of the drug trade in Puerto
Rico, without reference to the specifics in Agramonte's case.
Finally, consistent with the district court's October
18, 2019 ruling, Agent Fernández was not qualified as an expert
witness, and during jury instructions, the district judge limited
the expert witness instruction to Charlotte Castro, a chemist, who
testified that the specimen she analyzed was powder cocaine.
2. Law Enforcement Testimony as Lay Testimony
Rather than an objection to overview testimony, it may
be that Agramonte's real challenge is to Agent Fernández's
testimony as a lay witness under Federal Rule of Evidence 701. In
his brief, Agramonte refers to Rule 701's limitations on the
testimony of lay witnesses and argues that, because Agent Fernández
was testifying as a lay, not expert, witness his testimony should
have been limited to opinions "(a) rationally based on [his]
perception; (b) helpful to clearly understanding the witness's
- 40 -
testimony or to determining a fact in issue; and (c) not based on
scientific, technical, or other specialized knowledge within the
scope of Rule 702." Fed. R. Evid. 701.
However, "we have previously upheld the admission of
similar lay opinion testimony about drug distribution practices
based on law enforcement experience." United States v. Norris, 21
F.4th 188, 198 (1st Cir. 2021) (citing Moon, 802 F.3d at 147-48;
United States v. Valdivia, 680 F.3d 33, 50-51 (1st Cir. 2012);
United States v. Ayala-Pizarro, 407 F.3d 25, 29 (1st Cir. 2005)).
"[W]e have long held that government witnesses with experience in
drug investigations may explain the drug trade and translate coded
language for juries, either through lay or, if qualified, expert
testimony." United States v. Rosado-Pérez, 605 F.3d 48, 56 (1st
Cir. 2010). "Indeed, time and again we have stated that Rule 701
lets in testimony based on the lay expertise a witness personally
acquires through experience, often on the job." United States v.
Belanger, 890 F.3d 13, 25 (1st Cir. 2018) (cleaned up); see also
United States v. Amador-Huggins, 799 F.3d 124, 130 (1st Cir. 2015)
(finding no abuse of discretion in a district court's ruling that
a law-enforcement witness presented only lay testimony in
accordance with Rule 701 when the knowledge underpinning his
testimony "was 'rationally based on the witness's perception,'
acquired in the course of his work as an FBI agent"); United States
v. Habibi, 783 F.3d 1, 5 (1st Cir. 2015) (concluding it was not an
- 41 -
abuse of discretion to permit an agent to offer lay testimony when
the testimony was based on the agent's "experience as a federal
law enforcement officer").
Based on our precedent, Agent Fernández's testimony
satisfied Rule 701's requirement that lay opinion evidence be
"helpful to clearly understanding the witness's testimony or to
determining a fact in issue." Fed. R. Evid. 701(b). The jury was
likely unfamiliar with the patterns and practices of drug
traffickers, particularly how they choose specific couriers and
smuggling routes. This context was particularly helpful here for
the jury to assess the defense's theory that Agramonte was an
unknowing "blind mule" as opposed to a trusted deliveryman who
knew about the cocaine hidden in his van radiator. See Habibi,
783 F.3d at 5 (concluding there was no abuse of discretion in
admitting a law-enforcement lay witness's testimony when it was
grounded in his investigative experiences as an FBI agent and,
"though anecdotal," ultimately "'helpful' to the jury"); Meises,
645 F.3d at 16 ("The nub of [Rule 701(b)'s] requirement is to
exclude testimony where the witness is no better suited than the
jury to make the judgment at issue, providing assurance[ ] against
the admission of opinions which would merely tell the jury what
result to reach." (citations and internal quotation marks omitted,
second alteration in original)).
- 42 -
Agent Fernández's testimony was based on his on-the-job
experiences in law enforcement, as described when the proper
foundation was laid for his testimony. Before sharing his
observations with the jury, Agent Fernández set out his eighteen
years of border patrol and law enforcement work experience, his
training in the narcotics field, and his current role overseeing
all of HSI's undercover operations in Puerto Rico. See Rosado-
Pérez, 605 F.3d at 56. Agent Fernández was questioned about his
credentials and cross-examined by defense counsel, which mitigated
any risk of unfair prejudice. The district court did not abuse
its discretion in allowing Agent Fernández to testify.
C. Agramonte's Competency at Sentencing
Agramonte's final challenge is that the district court
abused its discretion in failing to sua sponte order a competency
hearing prior to or during his February 27, 2020 sentencing
hearing. We have explained that a "district court must have a
hearing 'if there is reasonable cause to believe that the defendant
may presently be suffering from a mental disease or defect
rendering him mentally incompetent to the extent that he is unable
to understand the nature of the proceedings against him or to
assist properly in his defense.'" United States v. Gonzalez-
Ramirez, 561 F.3d 22, 28 (1st Cir. 2009) (quoting 18
U.S.C. § 4241(a)). "We . . . review the district court's decision
not to hold a competency hearing for abuse of discretion." United
- 43 -
States v. Kenney, 756 F.3d 36, 43 (1st Cir. 2014). "We will affirm
so long as there was a sufficient evidentiary basis to support the
decision." Gonzalez-Ramirez, 561 F.3d at 28 (citing United States
v. Bruck, 152 F.3d 40, 46 (1st Cir. 1998)).
Agramonte observes that concerns regarding his
competency at the sentencing hearing were serious enough to prompt
the district court to engage him in a series of questions, and he
further contends that his responses "showed that he did not
understand the [sentencing proceedings or the safety valve
provision] and that he was not making reasonable decisions."
Agramonte maintains that the district court erred in not affording
"significant weight" to the competency concerns that his counsel
raised before trial and renewed at the sentencing hearing. We
disagree and conclude that the district court did not abuse its
discretion in failing to sua sponte order a competency hearing
before proceeding with Agramonte's sentencing. See United States
v. Malmstrom, 967 F.3d 1, 7 (1st Cir. 2020).
The district judge did not view Agramonte in a vacuum by
the time Agramonte arrived at the sentencing hearing. First, the
district judge reviewed Dr. Romey's March 12, 2019 report and her
conclusion that, although Agramonte presented some mental capacity
challenges, he was "able to understand legal proceedings and
collaborate with defense." Given the nature of Agramonte's mental
impairment, nothing in the record suggests that his baseline
- 44 -
cognitive functioning would have changed from March 11, 2019, when
Dr. Romey examined him, to February 27, 2020, the date of the
sentencing hearing.
Second, neither defense counsel nor the government had
requested the district judge to hold a competency hearing during
the period from Agramonte's indictment to the sentencing hearing.
Third, there was nothing about Agramonte's crimes that
implied a diminished mental capacity. He had procured a Ford
Econoline van in November 2018, had engaged in international travel
to the Dominican Republic, had returned to Puerto Rico in early
December 2018, had purchased another Ford Econoline van, had again
traveled to the Dominican Republic that same month, had the van
modified for transportation of illegal drugs, and had traveled
back to Puerto Rico. Although perhaps not the most sophisticated
drug-smuggling operation, there was nothing about the crimes or
his role in them that suggested mental incompetence.
Fourth, although Agramonte had indicated he might raise
his mental incapacity as a defense during trial, including by
calling Dr. Romey as an expert witness, he did not re-file
appropriate notice of her proposed testimony as ordered by the
district court and never presented the issue of his mental
incapacity to the jury.
Fifth, the district judge had presided over Agramonte's
jury trial and had the advantage of watching him closely
- 45 -
throughout, assessing his reactions to the evidence and arguments
and his interactions with counsel.
Sixth, although the PO confirmed Agramonte's mental
capacity limitations and suggested that the district court could
take them into account in imposing a variant sentence, the PO did
not suggest that the district judge depart downward under U.S.S.G.
§ 5H1.3 on this basis.
Seventh, once alerted at the outset of the sentencing
hearing to defense counsel's concerns about Agramonte's mental
capacity, the district judge did not dismiss the concerns; rather,
the district judge engaged with Agramonte and his counsel regarding
his competency. Following a colloquy with Agramonte prompted by
his counsel's comments, the district judge concluded that defense
counsel could provide the reminders and advice recommended by the
psychologist, who the district judge noted had otherwise found him
"completely competent."
Eighth, Agramonte's counsel framed the competency
concerns primarily in terms of an asserted unfairness in the
mandatory minimum sentence as applied to someone with Agramonte's
mental limitations.
Ninth, when Agramonte allocuted at his sentencing
hearing, his statements to the district judge were appropriate and
did not signal his incompetency. Agramonte urged the judge to
take him into her consideration. He then reminded the judge that
- 46 -
he was illiterate, did not know about words and letters, did not
know what he was doing in court, and that he had never been in a
trial and never been in prison. Although Agramonte's statements
were consistent with his intellectual limitations, his allocution
would not otherwise have alerted the sentencing judge that there
were additional competency concerns.
Tenth, after Agramonte allocuted, the government
addressed his culpability by arguing in part that, regardless of
his mental limitations and limited education, the trial testimony
demonstrated that Agramonte had conducted a fairly complex
operation, importing and exporting goods from the Dominican
Republic for an alleged profit. The government pointed out that
Agramonte's supposed business involved more sophistication than
merely purchasing a ferry ticket; he was also required to have
travel and vehicle documentation, complete bills of lading, and
meet deadlines on pain of fine. In the past, the government
argued, Agramonte had navigated these requirements. In response
to the government's argument, defense counsel informed the
district judge that Agramonte wanted the judge to know that, "as
regards to the documents that were completed, he would ask somebody
else to sign them or prepare them for him as a favor given his
limitations."
We have reiterated that the "bedrock principle" of
competency is that "a defendant must possess the ability to
- 47 -
communicate with his counsel so that he can assist meaningfully in
the preparation and presentation of his defense." Malmstrom, 967
F.3d at 5 (citing Kenney, 756 F.3d at 43; 18 U.S.C. § 4241(a)).
This is a "functional concept." Id.While Agramonte's mental health evaluation, his behavior
at the trial, and his allocution at sentencing all support his
competency, the above exchange is also convincing. It shows that,
at the very hearing at issue, he was actively assisting in his
defense by registering arguments from the government and offering
information that would serve as rebuttal.
Finally, as we have observed, concerns about mental
health are "endemic to the criminal justice system." Kenney, 756
F.3d at 44. A defendant may have a serious mental health condition
"while still being able to understand the proceedings and
rationally assist his counsel." Id. (quoting United States v.
Widi, 684 F.3d 216, 221 (1st Cir. 2012)).
Here, the district court properly based its competency
decision on the psychological assessment submitted by the defense,
the inaction of counsel in failing to request a competency hearing,
and its own observations of Agramonte during the full course of
the case. True, the evidence here could suggest that Agramonte
did not or could not understand what was going on, particularly
his peculiar reference to his decision to go to trial because of
what he saw on television. But the district judge, who had
- 48 -
presided over his trial and was present at his sentencing hearing,
could reasonably conclude that Agramonte was sufficiently
competent to proceed with sentencing without any need for a
competency hearing. See Gonzalez-Ramirez, 561 F.3d at 28(instructing that the district court's decision on this score
should be affirmed if there was a sufficient evidentiary basis for
it).
It follows that the district court did not abuse its
discretion in failing to find "reasonable cause to believe that a
substantial question exist[ed] concerning defendant's competency"
requiring intervention. Malmstrom, 967 F.3d at 7 (noting that
although defendant's "offense conduct raises a legitimate question
about his overall mental health," the fact that the defendant
struggles with mental health issues "is not a per se bar to a
finding of competency to stand trial"); see also Widi, 684 F.3d at
221.
IV. Conclusion
This case involved some troubling facts and posed a
series of difficult questions, but our caselaw, which we are
dutybound to follow, compels that the defendant's convictions and
sentence must be affirmed.
- 49 -