United States v. Rodriguez , 919 F.3d 629 ( 2019 )

United States Court of Appeals
For the First Circuit
No. 18-1287
UNITED STATES OF AMERICA,
Appellee,
v.
CARLOS RODRIGUEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. William E. Smith, U.S. District Judge]
[Hon. Lincoln D. Almond, U.S. Magistrate Judge]
Before
Barron, Circuit Judge,
Souter, Associate Justice,
and Selya, Circuit Judge.
William T. Murphy on brief for appellant.
Stephen G. Dambruch, United States Attorney, and Donald C.
Lockhart, Assistant United States Attorney, on brief for appellee.
March 26, 2019

Hon. David H. Souter, Associate Justice (Ret.) of the Supreme
Court of the United States, sitting by designation.
SELYA, Circuit Judge. Defendant-appellant Carlos
Rodriguez claims that the district court committed reversible
error when it relied on previously excluded evidence to find that
he violated a condition of his supervised release. He also claims
that the district court had insufficient evidence to find a second
violation. Concluding, as we do, that any error was harmless and
that the evidence was sufficient to sustain both findings, we
affirm.
We briefly rehearse the relevant facts and travel of the
case. On February 10, 2011, the defendant entered a guilty plea
to one count of distribution of cocaine base (crack cocaine), in
violation of 21 U.S.C. § 841(a)(1). The district court imposed an
84-month incarcerative term, to be followed by a three-year
supervised release term. The defendant completed his prison
sentence and began his supervised release.
On May 16, 2017 (roughly nine months into his supervised
release term), the defendant submitted a urine sample to his
probation officer. The sample tested positive for amphetamines.
Even though the defendant denied using amphetamines, a follow-up
test confirmed their presence.
On August 22, 2017, two detectives employed by the
Providence, Rhode Island police department were in an unmarked
car, looking for street-level narcotics activity. They observed
what appeared to be an ongoing drug deal. When the participants
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drove away, both of their vehicles were followed by police
officers. The detectives stopped one car and asked the driver,
later identified as Jessica Thibault, to exit her vehicle.
Thibault immediately volunteered, "it's in my bra" and proceeded
to retrieve six bags of heroin from her bra. Other officers
stopped the second car and arrested the defendant (who was
driving). They seized a set of keys and $100 in cash from his
person.
Relying in part on information supplied by Thibault,
police officers located what they believed to be the defendant's
residence: an apartment on Covell Street. Their suspicions were
bolstered when they saw the defendant's name on the mailbox
assigned to the third-floor flat. Using a key found on the
defendant's person, the officers entered the apartment and
conducted a protective sweep. They saw various items of drug
paraphernalia in plain view.
The detectives then sought and obtained a warrant to
search the apartment. The search revealed a potpourri of drugs
(including cocaine, heroin, marijuana, and alprazolam), together
with additional drug paraphernalia. The search also revealed
several items linking the defendant to the apartment, such as a
utility bill in the defendant's name and photographs of the
defendant with two children.
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A federal probation officer was monitoring the
defendant's supervised release, and the police told her what had
happened. In short order, the probation officer sought and
received a federal warrant for the defendant's arrest. The
associated complaint charged the defendant with two separate
violations of supervised release conditions: possession of
narcotics with intent to distribute (count 1) and unlawful use of
amphetamines (count 2). It is undisputed that these acts, if
proved, would violate conditions of the defendant's supervised
release.
On November 2, 2017, the defendant appeared before a
magistrate judge for a supervised release revocation hearing. See
Fed. R. Crim. P. 59. The government offered testimony from one of
the Providence police detectives who had witnessed the drug deal
and from the probation officer. The detective testified as to
what he had seen during the August 22 incident and described this
observed behavior as consistent with street-level narcotics
activity. He also described the search of the apartment and what
it had revealed. The magistrate judge also allowed the detective
to testify, over objection, about out-of-court statements made by
Thibault immediately after the incident, reserving an ultimate
decision as to admissibility.
The probation officer's testimony was directed mainly to
count 2. She testified that the defendant had provided a urine
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sample that tested positive for amphetamines. Some of her
testimony, though, related to count 1: she confirmed that she had
made home visits at the defendant's residence on Covell Street,
where the defendant lived with his girlfriend. Her most recent
home visit took place in July of 2017.
Following the close of evidence and the submission of
post-hearing memoranda, the magistrate judge issued a report and
recommendation (R&R). See Fed. R. Crim. P. 59(b)(1). In it, the
magistrate judge sustained the defendant's hearsay objection and
— with one exception — struck Thibault's out-of-court statements
from the record. The exception, though, was significant: the
magistrate judge ruled that Thibault's spontaneous "it's in my
bra" utterance was independently admissible as a statement against
interest, see Fed. R. Evid. 804(b)(3), and considered that
statement in gauging the sufficiency of the evidence on count 1.
Having configured the record, the magistrate judge concluded that
the government had proven the violations charged in both counts by
preponderant evidence and recommended revocation of the
defendant's supervised release. He further recommended the
maximum 24-month sentence, to be followed by a new two-year term
of supervised release.
The defendant filed objections to the R&R, see Fed. R.
Crim. P. 59(b)(2), challenging the magistrate judge's findings and
recommendations as to both counts. The district court held a non-
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evidentiary hearing on March 23, 2018. See Fed. R. Crim. P.
59(b)(3). After considering the arguments of counsel, the court
— on de novo review, see id. — adopted the R&R; subject, however,
to remarks that the court had made from the bench. The court's
ultimate findings were that the defendant, on one occasion, had
possessed narcotics with intent to distribute and, on another
occasion, had unlawfully ingested amphetamines. Based on these
findings, the court held that the defendant had twice violated the
conditions of his supervised release. It proceeded to sentence
the defendant to an 18-month term of immurement, to be followed by
a new four-year term of supervised release. This timely appeal
ensued.
We review a district court's decision to revoke
supervised release for abuse of discretion. See United States v.
Whalen, 82 F.3d 528, 532 (1st Cir. 1996). We are mindful, though,
that a material error of law always amounts to an abuse of
discretion. See United States v. Vargas-Dávila, 649 F.3d 129, 130
n.1 (1st Cir. 2011).
Here, the defendant submits that the district court
erred in ruling that he violated the conditions of his supervised
release. His challenge extends to both counts, and we discuss
them separately.
We start with count 1 and, specifically, with the
defendant's assertion that the district court erred in relying
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upon certain out-of-court statements previously excluded as
hearsay by the magistrate judge. The government contends that we
should review this claim only for plain error, insisting that the
defendant failed to raise it below.1
The government's contention is founded on an
uncontroversial premise. It is black-letter law that when a party
fails to make a contemporaneous objection in the trial court,
appellate review of the forfeited objection is limited to plain
error. See Whalen, 82 F.3d at 531 (reviewing claims in supervised
release revocation proceeding for plain error when appellant had
not raised them below). Here, however, there is a rather large
fly in the ointment: to trigger a forfeiture (and, thus, plain
error review), the aggrieved party must have had a fair opportunity
to object. See Fed. R. Crim. P. 51(b). And in the interest of
finality, that opportunity must have arisen prior to the trial
court's entry of judgment. See United States v. Sepúlveda-
Contreras, 466 F.3d 166, 171 (1st Cir. 2006). The mere possibility
that an aggrieved party might be able to file a motion for
reconsideration is not the functional equivalent of an opportunity
1
Review for plain error is not appellant-friendly: it
requires an appellant to show "(1) that an error occurred (2) which
was clear or obvious and which not only (3) affected the
defendant's substantial rights, but also (4) seriously impaired
the fairness, integrity, or public reputation of judicial
proceedings." United States v. Duarte, 246 F.3d 56, 60 (1st Cir.
2001).
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to object and, thus, does not normally pave the way for plain error
review. See United States v. Burrell, 622 F.3d 961, 966 (8th Cir.
2010).
In this case, the defendant lodged contemporaneous
objections to Thibault's hearsay statements before the magistrate
judge (and, indeed, succeeded in securing a ruling excluding the
challenged statements). The subsequent hearing before the
district court was a non-evidentiary hearing, and the government
identifies only a single point at which the defendant could have
perceived the district court's alleged error. That point arose
when the court, in issuing its decision ore tenus, stated that
"it's clear . . . that [the magistrate judge] primarily relied on
Ms. Thibault's statements with respect to the evidence of what
occurred on the street and that transaction."2 Since this
statement was part and parcel of the court's final decision, the
defendant had no realistic opportunity to object before the entry
of judgment. We hold, therefore, that the defendant's claim of
error was not forfeited and that the plain error standard of review
does not pertain. See Sepúlveda-Contreras, 466 F.3d at 171
(holding plain error review inapposite when appellant had no
2 To be sure, the district court had made earlier references
to what Thibault said, but it is undisputed that the parties
reasonably understood those references to refer to the statement
("it's in my bra") that the magistrate judge allowed into evidence
as a statement against interest.
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reasonable opportunity to object to claimed error below); cf.
Whalen, 82 F.3d at 531 (applying plain error standard when
supervised release challenge not raised below).
Having established that abuse of discretion is the
appropriate standard of review, we turn to the merits of the
defendant's argument. The challenged evidence — the out-of-court
statements by Thibault — is classic hearsay. See Fed. R. Evid.
801(c) (defining hearsay as "a statement that: (1) the declarant
does not make while testifying at the current trial or hearing;
and (2) a party offers in evidence to prove the truth of the matter
asserted in the statement"). The government concedes, at least
implicitly, that no exception to the hearsay rule applies.
Finally, there does not appear to be any doubt that the district
court, which explicitly referred to multiple "statements" from
Thibault, relied upon the hearsay evidence — the same evidence
that the magistrate judge already had excluded.
To be sure, hearsay evidence may be admissible in
supervised release proceedings because, in such a context, the
defendant does not have a full Sixth Amendment right to confront
adverse witnesses. See United States v. Fontanez, 845 F.3d 439,
443 (1st Cir. 2017). Instead, the defendant has only a limited
right of confrontation, which requires a court to balance the right
to confront witnesses against whatever good cause may exist for
relaxing customary principles of confrontation. See United States
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v. Rondeau, 430 F.3d 44, 48 (1st Cir. 2005); see also Fed. R. Crim.
P. 32.1(b)(1)(B)(iii), (2)(C). In conducting this tamisage, the
court must "weigh both the apparent reliability of the hearsay
evidence and the government's proffered reason for not producing
the declarant." Fontanez, 845 F.3d at 443.
Here, the government's only argument for not producing
Thibault as a witness was that she was likely unavailable. The
magistrate judge concluded that this explanation was wholly
speculative and that, therefore, the government had not shown good
cause for failing to present Thibault's direct testimony.
Accordingly, the magistrate judge found an abridgement of the
defendant's limited confrontation right and struck Thibault's
hearsay statements from the record (with the one exception limned
above). The government filed no objection to this ruling and,
thus, it has become the law of the case. See Davet v. Maccarone,
973 F.2d 22, 30-31 (1st Cir. 1992) (holding that failure to object
to magistrate judge's ruling waives review by district judge); see
generally United States v. Matthews, 643 F.3d 9, 12-13 (1st Cir.
2011) (stating that legal decisions made at one stage of a criminal
or civil proceeding remain the law of the case throughout the
litigation, unless modified or overruled by a higher court). It
follows that — as the defendant has argued — the district court
abused its discretion in relying upon the previously excluded
hearsay statements in formulating its decision.
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This conclusion does not end our inquiry. Not every
trial error requires reversal of the judgment, and it remains for
us to determine whether the error here was harmless. See United
States v. Melvin, 730 F.3d 29, 38 (1st Cir. 2013).
Depending on the circumstances, either of two different
standards may apply in determining whether an error is harmless.
See id. at 39. If the error is of constitutional dimension, it
can be harmless only if "the government [carries] the burden of
proving beyond a reasonable doubt that the error did not affect
the defendant's substantial rights." United States v. Vázquez-
Rivera, 407 F.3d 476, 489 (1st Cir. 2005) (citing Chapman v.
California, 386 U.S. 18, 24 (1967)). If, however, the error is
not of constitutional dimension, a less rigorous standard obtains:
in such an event, the error is harmless as long as the reviewing
court determines "with fair assurance, after pondering all that
happened without stripping the erroneous action from the whole,
that the judgment was not substantially swayed by the error."
United States v. Sasso, 695 F.3d 25, 29 (1st Cir. 2012) (quoting
Kotteakos v. United States, 328 U.S. 750, 765 (1946)). Once again,
the government bears the devoir of persuasion. See Sepúlveda-
Contreras, 466 F.3d at 171.
In the case at hand, the discerned error is not of
constitutional dimension. Consequently, the less rigorous
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Kotteakos standard pertains. We turn, then, to the application of
this standard.
Harmless error analysis necessarily hinges on the facts
and circumstances of a given case. Thus, any such analysis "must
be made in the context of the case as gleaned from the record as
a whole." United States v. Meserve, 271 F.3d 314, 330 (1st Cir.
2001) (quoting DeVasto v. Faherty, 658 F.2d 859, 863 (1st Cir.
1981)). It follows that "a harmlessness determination demands a
panoramic, case-specific inquiry considering, among other things,
the centrality of the tainted material, its uniqueness, its
prejudicial impact . . . and any telltales that furnish clues to
the likelihood that the error affected the factfinder's resolution
of a material issue." United States v. Sepulveda, 15 F.3d 1161,
1182 (1st Cir. 1993).
It is nose-on-the-face plain that the district court's
improper reliance on previously excluded hearsay statements bore
only on its finding that the defendant had illegally trafficked
drugs (count 1). The record makes manifest, though, that the court
also relied on a plethora of admissible evidence to support that
finding. Such evidence included the detective's testimony as to
what he observed, Thibault's spontaneously uttered statement
against interest, the testimony and materials linking the
defendant to the Covell Street apartment, and the contents of that
apartment discovered during the warrant-backed search. Relatedly,
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the district court — relying exclusively on admissible evidence —
found that the government had established the defendant's control
over the apartment.3 The short of it is that the evidence
supporting the count 1 finding, quite apart from the previously
excluded hearsay statements, was overwhelming.
The government must prove a supervised release violation
by a preponderance of the evidence. See Fontanez, 845 F.3d at
442. Here, we can say "with fair assurance, after pondering all
that happened without stripping the erroneous action from the
whole," that the district court's finding of a violation on count
1 "was not substantially swayed" by any error in treating
inadmissible evidence as admissible. Kotteakos, 328 U.S. at 765.
The upshot is that the defendant wins the battle but loses the
war. We conclude that even though the district court erroneously
relied on Thibault's previously excluded hearsay statements, its
error was manifestly harmless. See, e.g., Fontanez, 845 F.3d at
445 (holding erroneous admission of hearsay evidence in revocation
proceeding harmless because that evidence played "infinitesimal
3
In support, the district court noted that the defendant's
name was emblazoned on the mailbox for the apartment; that the
defendant had in his possession a key that unlocked the door to
the apartment; that pictures of the defendant and a utility bill
bearing his name were found in the apartment; and that the
defendant's probation officer had made home visits to him at that
locus.
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role" in finding of violation). Accordingly, the district court's
finding of a violation on count 1 must stand.
The defendant's remaining claim of error relates to
count 2. He asserts that there was insufficient evidence on which
to base a finding that he intentionally used amphetamines. This
assertion lacks force.
We review challenges to the sufficiency of the evidence
de novo. See Rondeau, 430 F.3d at 149. In the supervised release
context, we "tak[e] the facts in the light most favorable to the
government, to determine whether there was proof, by a
preponderance of the evidence," that the defendant violated a
supervised release condition. Id.We discern no error. To find a supervised release
violation, the district court need not point to direct evidence
but, rather, may rely on reasonable inferences drawn from the
evidence. See United States v. Marino, 833 F.3d 1, 8 (1st Cir.
2016). The inferences so drawn "need not be compelled but, rather,
need only be plausible." United States v. Nuñez, 852 F.3d 141,
146 (1st Cir. 2017)
In this case, the defendant argues that a failed drug
test, without more, is insufficient to show that he intentionally
used an illegal drug. To buttress this argument, he suggested to
the magistrate judge that it was possible that one of his friends
slipped amphetamines into his drink. But there are possible
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explanations for virtually any datum, and something more concrete
is needed to remove a bare possibility from the realm of
conjecture. Here, the defendant identifies nothing in the record
that lends the slightest support to the wholly speculative
possibility that he conjures — and the magistrate judge, charged
with finding the facts, was not persuaded. Instead, the magistrate
judge drew an inference — eminently reasonable, we think — that
the defendant had deliberately engaged in the unlawful use of
amphetamines and, thus, had violated a supervised release
condition. On de novo review, see Fed. R. Crim. P. 59(b)(3), the
district court reached the same conclusion.
So do we. It is perfectly reasonable for a factfinder
to conclude that a defendant who was found to have ingested a
particular drug has — at least in the absence of any evidence
tending to support a contrary explanation — done so deliberately.
See United States v. Brennick, 337 F.3d 107, 111 (1st Cir. 2003)
(holding positive drug test sufficient to show that defendant
possessed illegal drugs in violation of supervised release). We
therefore uphold the district court's finding that the defendant
committed the violation charged in count 2.
We need go no further. For the reasons elucidated above,
the judgment of the district court is
Affirmed.
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