United States v. Vicente-Arias , 809 F.3d 686 ( 2015 )

United States Court of Appeals
For the First Circuit
Nos. 13-2155,
13-2500,
14-1040,
14-1078
UNITED STATES OF AMERICA,
Appellee,
v.
JOSÉ PEÑA-SANTO,
JOSÉ RAMÓN VICENTE-ARIAS,
JONATHAN GIL-MARTÍNEZ,
MANUEL LIRIANO-DE LA CRUZ,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Torruella, Selya, and Dyk,*
Circuit Judges.
Carlos M. Sánchez-La Costa, for appellant Peña-Santo.
Barbara J. Sweeney, for appellant Vicente-Arias.
Kenneth Seiger, for appellant Gil-Martínez.
Leslie W. O'Brien, for appellant Liriano-de la Cruz.
Tiffany V. Monrose, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, were on brief, for appellee.
*
Of the Federal Circuit, sitting by designation.
October 14, 2015
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TORRUELLA, Circuit Judge. Defendants-Appellants José
Peña-Santo ("Peña-Santo"), José Ramón Vicente-Arias ("Vicente-
Arias"), Jonathan Joel Gil-Martínez ("Gil-Martínez"), and Manuel
Liriano de la Cruz ("Liriano") (collectively "Appellants") were
jointly tried and convicted of conspiring to import cocaine and
heroin into the United States, in violation of 21 U.S.C. §§ 952(a),
960, and 963, and conspiring to possess with intent to distribute
cocaine and heroin on board a vessel subject to the jurisdiction of
the United States, in violation of 46 U.S.C. §§ 70503(a)(1),
70504(b)(1), 70506(a). Peña-Santo and Liriano were additionally
convicted of illegally reentering the United States, in violation
of 8 U.S.C. § 1326(a)(2) and (b)(1). Appellants appeal their
conspiracy convictions mainly on the grounds that improper expert
testimony and the government's conduct warrant reversal of their
convictions. They also assign error to the denial of their motions
for judgments of acquittal. Finally, Gil-Martínez challenges the
substantive reasonableness of his sentence. We have reviewed
Appellants' claims carefully and do not find merit in any of them.
Accordingly, we affirm.
I. Facts1
On the night of April 12, 2012, Ryan Perry, a Customs and
Border Patrol ("CBP") agent working as a camera operator and
1
We briefly summarize the relevant facts, reserving for our
analysis a more detailed discussion of the facts relevant to each
issue presented on appeal.
-3-
patrolling the waters from an aircraft, detected a target of
interest with "lights out" seventeen nautical miles off the coast
of Dorado, Puerto Rico, around 10:00 p.m. The target was a blue-
colored wooden yola,2 between twenty and twenty-five feet long,
riding "very low" in the water, and carrying two motors and six
fuel drums. A Maritime Patrol aircraft, along with the U.S. Coast
Guard marine unit, the Puerto Rico Joint Forces of Rapid Action
("FURA," for its Spanish acronym), and a CBP helicopter,
coordinated an intercept of the suspect vessel. When the Coast
Guard marine unit approached the vessel, the individuals were
moving "erratically" on the boat. Perry saw "objects being thrown
from the yola." Another officer who joined the interception of the
vessel, Luke Berguis from the Coast Guard, reported seeing "large,
heavy bags being tossed over by the multiple crew members," as well
as "small backpacks" and "smaller objects" that looked like cell
phones and GPS units. Agent René Galarza, of U.S. Immigration and
Customs Enforcement ("ICE"), after turning the helicopter's
spotlight on the vessel also saw "individuals dumping what appeared
to be bales."
At approximately 11:39 p.m., nearly four miles off the
coast of Dorado, the Coast Guard marine unit intercepted the yola,
which had six men on board, and ordered the men to raise their
2
A yola is a small fishing boat. For purposes of this opinion,
"yola" and "vessel" will be used interchangeably.
-4-
hands, which they did after some initial hesitance. FURA, along
with the Coast Guard marine unit, later retrieved the objects that
had been thrown into the water, which turned out to be "six heavy
dark colored [gym] bags wrapped in duct tape" that each had a
"block shape." Inside the bags were eight kilograms of 50% pure
heroin packaged in eight egg shapes and 146.5 kilograms of 74.8%
pure cocaine packaged in 131 brick shapes. The six men, identified
as Peña-Santo, Vicente-Arias, Gil-Martínez, Liriano, Bonifacio
Toribio-Almonte, and Alejandro Difot-Santos, all citizens of the
Dominican Republic, were arrested.
A grand jury returned a superseding indictment charging
the six men with conspiracy to import cocaine and heroin into the
United States, in violation of 21 U.S.C. §§ 952(a), 960, and 963
(Count 1), and conspiracy to possess with intent to distribute
cocaine and heroin on board a vessel subject to the jurisdiction of
the United States, in violation of 46 U.S.C. §§ 70503(a)(1),
70504(b)(1), 70506(a) (Count 2). Peña-Santo and Liriano were also
charged with illegally reentering the United States, in violation
of 8 U.S.C. § 1326(a)(2), (b)(1), respectively (Counts 3 and 4).3
Difot-Santos and Toribio-Almonte pleaded guilty while Appellants
were jointly tried.
3
Peña-Santo and Liriano stipulated to the fact that they had been
previously removed from the United States and that they had no
petition pending with the U.S. Citizenship and Immigration Services
to enter the United States lawfully. Peña-Santo further stipulated
to the fact that he had a previous felony conviction.
-5-
At trial the government presented the testimony of Perry,
Berghuis, Galarza, Andrew Resk, and Joel Candelario, all of whom
participated in the interception of the yola on April 12, 2012.
Berghuis testified that wooden boats with low profiles and no
navigation lights, such as the yola used by Appellants, are harder
to see and to pick up on radar. He further testified that
Appellants' yola was painted blue on both the outside and the
inside, which made it "very hard to see at night" from an "aerial
aspect"; that it had excessive horsepower and fuel for its size;
and that it did not have any fishing or other recreational gear on
board. Instead, it carried multiple open condoms, which, based on
his experience, are often used to keep dry small objects such as
wallets and cell phones. Berghuis also identified Appellants in
court as four of the six men on board the yola when it was
intercepted and testified that he observed that more than one
individual was needed to lift the bags which had been thrown
overboard when the yola was approached by law enforcement.
The government also presented the testimony of Víctor
Taboada, who was on patrol on the Coast Guard Cutter Cushing on the
night of the interception; Abel Nasser, who works with ICE and the
Department of Homeland Security; and Carmen Cacho ("Ms. Cacho"), a
chemist employed by CBP. They testified about the type, purity,
quantity, and weight of the narcotics recovered during the
interception of the yola.
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In addition, the government presented the testimony of
Drug Enforcement Administration agent Christopher Conchin ("Agent
Conchin"), who had experience in narcotic cases and international
maritime interdictions. The district court qualified Agent Conchin
as an expert witness and allowed him to testify as to the value,
packaging, and mode of transportation of narcotics. Agent Conchin
testified regarding how narcotics' street price depends on the
place of sale. He also testified that drugs are usually wrapped in
plastic and packaged in same-size bricks. As to the mode of
transportation, Agent Conchin testified that drugs are typically
transported in go-fast boats or yolas, which are usually painted
blue to blend in with the water, have more than one motor (usually
two or three), are either open or have a compartment to "put stuff
underneath," and carry numerous gasoline drums that are switched
off during the voyage. In addition, he testified that vessels
transporting narcotics generally have four to six people on board
and that each has a specific duty. He further testified that, in
his experience, "in the cases that [he has] worked, . . .
individuals not connected with the trafficking of narcotics" have
not been involved in the transportation.
After a four-day jury trial, Appellants were found guilty
on all charges. Appellants moved for a judgment of acquittal
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pursuant to Fed. R. Crim. P. 29, which the district court denied.4
The district court sentenced Peña-Santo to 120 months in prison,
Vicente-Arias to 130 months, Gil-Martínez to 192 months, and
Liriano to 240 months. In addition, they were each sentenced to
five years of supervised release. These timely appeals followed.
II. Discussion of Appellants' Claims
A. Expert Testimony
1. Background
The government intended Agent Conchin to testify as to
"the quantity of the narcotics, the value of the narcotics, and
. . . to the fact that [Appellants] weren't just by happenstance"
in the vessel. Appellants questioned the need for his testimony,
arguing that the question before the jury of whether they were part
of a conspiracy to distribute drugs did not require complex
insight. The district court allowed the witness to testify only
with respect to the value, packaging, and mode of transportation of
drugs.
At trial, Agent Conchin testified that, in his
experience, random people unconnected to drug trafficking would not
be on board vessels with drugs. According to him,
[t]he people that are on those boats are there
for one purpose, and that's to get the drugs
to where they're going, and they're there for
protection. They're there to switch out the
4
They also requested a new trial pursuant to Fed. R. Crim. P. 33,
which was also denied.
-8-
hoses like I mentioned, because you can't do
it with just [one] person. You have the
captain who is the navigator to get you to
where it's going, the exact point. You have a
mechanic in case it breaks down and you have
problems on the water. Everybody has a duty,
a specific duty.
Appellants claim that the district court abused its
discretion in allowing Agent Conchin to testify about the different
roles of individuals on board vessels transporting drugs. They
argue that this testimony should have been stricken from the record
because it exceeded the scope of the topics allowed by the district
court. In addition, they claim that Agent Conchin improperly
identified the roles of the Appellants in the charged conspiracy
without having personal knowledge of it and that he addressed the
ultimate issue for the jury -- whether Appellants were members of
the conspiracy and possessed the intent to import and distribute
narcotics -- which is prohibited by Rule 704(b) of the Federal
Rules of Evidence and constitutes reversible error pursuant to this
court's holdings in United States v. Meises, 645 F.3d 5 (1st Cir.
2011); United States v. Flores-De-Jesús, 569 F.3d 8 (1st Cir.
2009); and United States v. Casas, 356 F.3d 104 (1st Cir. 2004).
We disagree.
2. Applicable Law and Analysis
It is well established that the district court "enjoys
leeway in deciding to admit or exclude expert testimony." United
States v. Ladd, 885 F.2d 954, 959 (1st Cir. 1989). Rulings on
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preserved evidentiary objections are reviewed for abuse of
discretion. Casas, 356 F.3d at 113. Review of unobjected-to
evidentiary rulings is for plain error. Id. Under this exacting
standard, an appellant must show that (1) there was an error,
(2) which was clear or obvious, (3) that affected his substantial
rights, and (4) also seriously impaired the fairness, integrity, or
public reputation of judicial proceedings. United States v. De
Jesús-Viera, 655 F.3d 52, 57 (1st Cir. 2011). Because Appellants
did not meaningfully object to the testimony they now challenge,
our review is for plain error.
Appellants' first argument -- that Agent Conchin's
testimony was inadmissable because it exceeded the scope of the
topics allowed by the district court -- falls flat at the outset.
The district court allowed Agent Conchin to testify about the "mode
of transportation" of drugs. Appellants cannot show that
interpreting "mode of transportation" to include not only the
physical description of vessels used to transport drugs, but also
the process itself of transporting drugs in such vessels and the
roles people perform while transporting the drugs amounts to error,
much less clear or obvious error. Thus, Appellants' claim cannot
survive plain-error review.
Appellants' second argument suffers the same fate. "For
expert testimony to be admissible under Fed. R. Evid. 702, it must
'be relevant to the task at hand' and helpful to the jury in its
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deliberations." United States v. García-Morales, 382 F.3d 12, 18
(1st Cir. 2004) (quoting United States v. López-López, 282 F.3d 1,
14 (1st Cir. 2002)). This court has approved the admission of
expert testimony regarding "the operation of criminal schemes and
activities" in drug trafficking cases, finding such testimony
relevant and "helpful to juries in understanding some obscure or
complex aspect of the crime." Id. at 18-19 (quoting United States
v. Montas, 41 F.3d 775, 783 (1st Cir. 1994) (noting that "expert
testimony regarding the description of a typical drug network [is]
relevant to provide context to the jury in evaluating the offenses
charged" (alteration in original) (internal quotation marks and
citation omitted) (quoting United States v. Clarke, 24 F.3d 257,
269 (D.C. Cir. 1994)); see also, e.g., Flores-de-Jesús, 569 F.3d at
26 (holding that the expert witness "properly described the
operation of drug points generally, including the various 'roles'
typically involved in an intricate drug conspiracy and the practice
of storing drugs intended for sale"); Ladd, 885 F.2d at 960(holding that because "jurors are not expected to be familiar with
the idiom and workings of the heroin community . . . [e]xpert
interpretation of drug jargon and practices, supplied by one versed
in the business, has often been admitted to assist the trier of
fact in drug-trafficking cases").
The leeway enjoyed by the district court in determining
the scope of expert witness testimony is limited by Rule 704(b) of
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the Federal Rules of Evidence, which prohibits an expert witness
from testifying that a "defendant did or did not have the mental
state or condition that constitutes an element of the crime
charged." Fed. R. Evid. 704(b). "This bar does not, however,
apply to 'predicate facts from which a jury might infer such
intent.'" United States v. Schneiderhan, 404 F.3d 73, 81 (1st Cir.
2005) (quoting United States v. Valle, 72 F.3d 210, 216 (1st Cir.
1995)).
Here, Agent Conchin provided proper expert testimony.
Appellants do not contest that the challenged testimony was
relevant. In addition, because the nature of narcotics trafficking
by vessels is likely outside the knowledge of the average layman,
we find that Agent Conchin's testimony was likely to assist the
jury in understanding the evidence or determining a fact at issue.
See Fed. R. Evid. 702; Ladd, 885 F.2d at 960.
Furthermore, contrary to Appellants' contentions, Agent
Conchin's testimony was not disallowed by Meises, Flores-de-Jesús,
or Casas. In those cases we "particularly condemned testimony from
. . . agent[s], not based on personal knowledge, describing the
roles played in the drug conspiracy by individual defendants"
because "[s]uch descriptions amount to impermissible testimony from
the agent[s] 'that each of the defendants was guilty of the
conspiracy charged.'" Meises, 645 F.3d at 13 (quoting Casas, 356
F.3d at 119); see also Flores-de-Jesús, 569 F.3d at 24 (holding
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that the court erred in allowing the expert witness to identify the
appellants by name and role in the conspiracy, where this testimony
was not based on his personal knowledge); Casas, 356 F.3d at 118,
120 (stating that the agent's testimony, which identified the roles
of each defendant in the drug conspiracy despite lacking personal
knowledge of it, was not an appropriate subject for expert
testimony). Unlike in the cases cited by Appellants, Agent Conchin
did not identify Appellants' roles in the charged conspiracy, nor
did he even refer to Appellants in particular or to their yola.
Rather, based on his experience in narcotics cases and
international maritime interdictions, he referred to "the people
that are on those boats" as he testified about the general roles
involved in the transportation of drugs by vessels. Thus, he did
not need to have personal knowledge of Appellants' specific roles
in the charged conspiracy; his testimony was in line with our
precedent. See Flores-de-Jesús, 569 F.3d at 26 (allowing an expert
witness to describe "the operation of drug points generally,
including the various 'roles' typically involved in an intricate
drug conspiracy"); García-Morales, 382 F.3d at 18-19; Ladd, 885
F.2d at 960.
In addition, Agent Conchin's testimony did not encroach
upon the jury's factfinding function regarding the ultimate issue
of guilt. He merely provided facts from which the jury could infer
culpable intent. See Schneiderhan, 404 F.3d at 81; United States
-13-
v. DiMarzo, 80 F.3d 656, 659-60 (1st Cir. 1996) (holding under
similar circumstances that the agent's testimony that "in his
experience, innocent observers are not invited to accompany
criminals engaged in completing a drug deal" did not "encroach upon
the jury's factfinding function regarding the ultimate issue of
guilt"); see also United States v. Valencia-Amezcua, 278 F.3d 901,
909 (9th Cir. 2002) (allowing expert witness to testify about the
"aversion of large-scale methamphetamine producers to allow
unaffiliated individuals near clandestine operations"). Moreover,
the district court clearly instructed the jury that "mere presence"
on the yola was insufficient to establish guilt and that it was for
the jury to decide whether the government had met its burden of
proving the necessary mens rea. See DiMarzo, 80 F.3d at 660.
Therefore, there was no error, plain or otherwise, in allowing
Agent Conchin's testimony.
We note, however, one improper statement made by Agent
Conchin during cross-examination. Because Agent Conchin's
descriptions about drug trafficking referred to millions of dollars
of profit, Liriano's defense counsel asked Agent Conchin in cross-
examination whether he knew if Liriano had any possessions, such as
a house or jewelry. Agent Conchin began to respond, "To answer
your question, obviously people that transport drugs such as your
client," but did not finish his response because he was immediately
interrupted by defense counsel, who -- although he did not object
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to Agent Conchin's statement -- said, "That's not my question." On
appeal, Peña-Santo -- but not Liriano -- claims that this response
constituted improper testimony on his guilt. Because Peña-Santo
neither objected to nor moved to strike to the statement, we review
only for plain error. De Jesús-Viera, 655 F.3d at 57. Peña-
Santos's claim fails under that stringent standard because he is
unable to satisfy plain-error review's third and fourth prongs;
that is, that it affected his substantial rights and that it
seriously affected the fairness, integrity, or public reputation of
the judicial proceedings. Id. Such an effect cannot be attributed
to a "single, isolated [and fleeting] statement" like this one,
which was made in response to a question by defense counsel
regarding a matter outside the scope of Agent Conchin's testimony.
See United States v. Trinidad-Acosta, 773 F.3d 298, 307 (1st Cir.
2014).
B. Sufficiency of the Evidence
Appellants claim reversible error by the district court
in the denial of their respective motions for judgments of
acquittal. See Fed. R. Crim. P. 29. They argue that the
government demonstrated only that they were "merely present" on the
vessel and that there was no evidence that they agreed to import or
possess with intent to distribute the drugs. They also claim that
the evidence presented at trial was consistent with their defense,
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namely, that they were attempting to enter the United States
illegally. We disagree.
1. Standard / Scope of Review
We review de novo the district court's denial of a Rule
29 motion for judgment of acquittal. Trinidad-Acosta, 773 F.3d at
310. In so doing, we view the evidence in the light most favorable
to the jury's verdict, giving "equal weight to direct and
circumstantial evidence." United States v. Appolon, 715 F.3d 362,
367 (1st Cir. 2013). We evaluate the sum of all the evidence and
inferences drawn therefrom, and determine whether that sum is
enough for any reasonable jury to find all the elements of the
crime proven beyond a reasonable doubt. United States v. Shaw, 670
F.3d 360, 362 (1st Cir. 2012) ("Individual pieces of evidence
viewed in isolation may be insufficient in themselves to prove a
point, but in cumulation may indeed meet the mark."). Also, "[w]e
do not assess the credibility of a witness, as that is a role
reserved for the jury. Nor need we be convinced that the
government succeeded in eliminating every possible theory
consistent with the defendant's innocence." Trinidad–Acosta, 773
F.3d at 310–11 (quoting United States v. Troy, 583 F.3d 20, 24 (1st
Cir. 2009)). We will uphold the verdict unless the evidence is so
scant that a rational factfinder could not conclude that the
government proved all the essential elements of the charged crime
beyond a reasonable doubt. United States v. Azubike, 564 F.3d 59,
-16-
64 (1st Cir. 2009). Accordingly, "defendants challenging
convictions for insufficiency of evidence face an uphill battle on
appeal." United States v. Lipscomb, 539 F.3d 32, 40 (1st Cir.
2008) (alterations omitted) (quoting United States v. O'Shea, 426
F.3d 475, 479 (1st Cir. 2005).
To sustain a drug-conspiracy conviction, the government
must prove beyond a reasonable doubt that the defendant "knew about
and voluntarily participated in the conspiracy, 'intending to
commit the underlying substantive offense.'" United States v.
Acosta–Colón, 741 F.3d 179, 190 (1st Cir. 2013) (quoting United
States v. Ortiz de Jesús, 230 F.3d 1, 5 (1st Cir. 2000)). "An
agreement to join a conspiracy may be express or tacit, and may be
proved by direct or circumstantial evidence." Trinidad–Acosta, 773
F.3d at 311 (quoting United States v. Liriano, 761 F.3d 131, 135
(1st Cir. 2014)).
Appellants are right that their "'mere presence' at the
scene of criminal activity is not enough" to convict them. See
United States v. Guerrero, 114 F.3d 332, 342 (1st Cir. 1997).
However, they grossly underestimate the strong circumstantial
evidence supporting the jury's conclusion of guilt.
The evidence presented at trial, viewed in the light most
favorable to the jury's verdict, showed that Appellants, along with
two co-defendants, traveled from the Dominican Republic to the
coast of Dorado, Puerto Rico, on a twenty-to-twenty-five-foot
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wooden yola, which was painted blue both on the inside and outside
to blend in with the water, had no navigation lights, and was
riding "very low" in the water. Its lack of lights, low profile,
color, and material made it very hard to be seen or be picked up on
radar. It also had excessive horsepower and fuel for its size, and
did not have any fishing or recreational gear on board. Instead,
it carried six "block shape[d]" gym bags wrapped in duck tape,
containing more than $3 million worth of heroin and cocaine. These
bags were in plain view of everyone on board the yola.
Once the individuals on board the yola detected that they
had been spotted by law enforcement, they started moving
"erratically" on the boat, and "multiple crew members" started
throwing the six bags, as well as small backpacks and objects that
looked like cell phones and GPS units, into the water. The six
bags were so large and heavy that more than one individual was
needed to lift and throw each one overboard. Two different
witnesses identified all four Appellants in open court as four of
the six individuals on board the intercepted yola. There was also
testimony that, when initially intercepted by law enforcement,
Appellants first hesitated to comply with the officers' orders to
stay put and raise their hands.
Furthermore, the jury also heard testimony from expert
witness Agent Conchin about the way drugs are usually packaged (in
"same size bricks"), the type of vessels used to transport drugs,
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and the roles of people involved in the maritime transportation of
narcotics.
This evidence, which included lay and expert witness
testimony, a video,5 and multiple photos,6 coupled with the
inferences that may be drawn therefrom, was enough for a reasonable
jury to conclude beyond a reasonable doubt that Appellants were
guilty of the conspiracy charges against them. Our conclusion is
consistent with our precedent. For example, in United States v.
Cuevas-Esquivel, 905 F.2d 510 (1st Cir. 1990), the defendants, who
were apprehended on a thirty-to-forty-foot boat surrounded by
floating bales of marihuana, raised arguments similar to those
pressed by Appellants here. In rejecting their argument of "mere
presence," this court held that
[r]ationality support[ed] the jury's finding.
The jury could without undue strain conclude
that it was simply incredible that with only
four persons on board a relatively small
vessel, on its way to "nowhere," with an open
cargo hold, surrounded by a sea of floating
marihuana bales which some of the crew had
been seen dumping, that all four were not
participants in this criminal venture. It is
entirely reasonable for the jury to conclude
that conspirators, engaged in conduct which by
its nature is kept secret from outsiders,
5
On the video, the jury could see individuals on board the yola
tossing bags overboard and law enforcement recovering them from the
water, as well as the individuals' erratic movements when they were
first detected by law enforcement and their hesitance to comply
with the order to raise their hands.
6
There were photos of the yola and the bags and drugs recovered
from the water.
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would not allow the presence of innocent
bystanders. Neither juries nor judges are
required to divorce themselves of common
sense, where, as here, the appellant's
portrayal of himself as an innocent bystander
is inherently unbelievable.
Id. at 515 (internal quotation marks and citation omitted) (quoting
United States v. Smith, 680 F.2d 255, 260 (1st Cir. 1982)); see
also United States v. Rosa-Cariño, 615 F.3d 75, 81 (1st Cir. 2010)
(noting that "[d]rug smugglers handling . . . valuable drugs are
unlikely to involve unknowledgeable outsiders"); Guerrero, 114 F.3d
at 342 (noting that "where the circumstantial evidence permits a
jury to conclude that activities aboard a vessel concern the
obvious presence of contraband, the jury reasonably may infer the
crew's knowing participation in the venture"); United States v.
Piedrahita-Santiago, 931 F.2d 127, 130 (1st Cir. 1991) (holding
where seven crewmembers were on board a "small" forty-foot vessel
that "[a] larger crew than ordinarily needed for navigation
purposes suggests that the crew was hired for the purpose of
loading and unloading cargo rather than merely steering the
vessel"); United States v. Luciano-Pacheco, 794 F.2d 7, 11 (1st
Cir. 1986) (stating that "given the necessarily close relation of
crewmembers cramped onto a vessel . . . with marijuana, it is
entirely reasonable for the jury to conclude that conspirators
. . . would reasonably not allow the presence of innocent
bystanders in their midst while conducting a lengthy, illegal
operation") (internal quotation marks and citation omitted)
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(quoting United States v. Beltrán, 761 F.2d 1, 6 (1st Cir. 1985);
Smith, 680 F.2d at 259-60 (1st Cir. 1982) (crewmember's presence on
a vessel carrying large quantities of marihuana together with
reasonable inferences, supported the conviction notwithstanding
defendant's contention that he was a mere passenger).
Although Appellants argue that the evidence was also
consistent with their defense that they were on the vessel taking
a ride to Puerto Rico with the sole intention of illegally entering
the United States, it was up to the jury to believe or disbelieve
their defense. The jury did not believe it and we cannot second-
guess that determination. See Trinidad-Acosta, 773 F.3d at 310-11.
"Nor need we be convinced that the government succeeded in
eliminating every possible theory consistent with the defendant's
innocence."7 Id. at 311 (quoting Troy, 583 F.3d at 24). Thus, the
district court properly denied Appellants' motions for judgment of
acquittal.
C. Government's Statements
According to Appellants, the prosecutor made some
improper remarks during trial that deprived them of a fair trial.
7
Although we have held that where the evidence is equally or
nearly equally consistent with innocence as it is with guilt, "a
reasonable jury must necessarily entertain a reasonable doubt,"
O'Laughlin v. O'Brien, 568 F.3d 287, 301 (1st Cir. 2009) (quoting
United States v. Flores-Rivera, 56 F.3d 319, 323 (1st Cir. 1995)),
that is not the case here, where the evidence establishing guilt
was very strong.
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Some of these remarks were objected to by some appellants at trial,
while others were not. We discuss each in turn.
This court reviews de novo whether objected-to remarks by
the prosecution were improper and/or constituted misconduct. See
United States v. Sepúlveda-Hernández, 752 F.3d 22, 31 (1st Cir.
2014); United States v. Appolon, 695 F.3d 44, 66 (1st Cir. 2012).
If we conclude that statements were improper or constituted
misconduct, we must then determine whether such statements resulted
in prejudice to the Appellants. United States v. Rodríguez, 675
F.3d 48, 62 (1st Cir. 2012); United States v. Azubike, 504 F.3d 30,
38-39 (1st Cir. 2007); United States v. Joyner, 191 F.3d 47, 53
(1st Cir. 1999) ("[W]e review for harmless error, that is, whether
the argument was 'sufficiently prejudicial to warrant a new trial
under the circumstances'" (quoting United States v. Rosales, 19
F.3d 763, 767 (1st Cir. 1994))). In determining whether the
prosecutor's remarks were harmless, "we evaluate the . . . comments
as a whole, not in isolation," Joyner, 191 F.3d at 53 (quoting
Rosales, 19 F.3d at 767), and "we focus on (1) the severity of the
misconduct, including whether it was isolated and/or deliberate;
(2) whether curative instructions were given; and (3) the strength
of the evidence against the [Appellants]." United States v.
González-Pérez, 778 F.3d 3, 19 (1st Cir. 2015) (citing Rodríguez,
675 F.3d at 62). The prosecutor's improper statements "are
considered harmful if they 'so poisoned the well that the trial's
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outcome was likely affected, thus warranting a new trial.'" Id.(quoting Rodríguez, 675 F.3d at 62).
Any unpreserved claims of prosecutorial misconduct are
reviewed for plain error. Id.; Rodríguez, 675 F.3d at 64(requiring defendant to prove there was an error, which was clear
or obvious, that affected his substantial rights, and seriously
impaired the fairness, integrity, or public reputation of the
judicial proceedings).
1. Opening Statement
During her opening statement, the prosecutor stated:
You'll hear the Judge inform you that
jurisdictional aspects is not an issue for you
to determine. It's already been determined by
this Court that the United States had
jurisdiction over this vessel and that these
individuals were on board this vessel which we
had jurisdiction over with the intent and
knowledge to possess and distribute the
narcotics.
Now, in this case there are no --
Peña-Santo's defense counsel immediately objected to the statement
saying, "I object to that, Your Honor. That's not what the Court
determined. That they knew that there were drugs on board is
something for the jury. That's an issue of fact for the jury to
decide." Gil-Martínez's counsel joined his objection and added
that the district court's "ruling was regarding the jurisdiction,
not that there were drugs inside the vessel." Faced with these
objections, the prosecutor responded, "I don't believe I stated
-23-
that. You will have to determine whether those drugs were on
board, and you'll see the video of them throwing them overboard."
Because only Peña-Santo and Gil-Martínez preserved this
argument, our review of their claim is for harmlessness. While our
review of Vicente-Arias and Liriano's claim would ordinarily be for
plain error, because Appellants' claim fails under both standards
of review, we limit our discussion to the more defendant-friendly
standard.
The prosecutor's statement gave the impression that the
court had already determined that Appellants had the "intent and
knowledge to possess and distribute the narcotics," which was not
correct and, thus, was improper. However, we still need to
determine whether the statement was prejudicial.
A review of the record does not reveal that the
prosecutor intended to mislead the jury. Rather, it suggests that
she simply misspoke when trying to list a series of issues the
government wanted to address as an introduction to the government's
case. Furthermore, the prosecutor's improper statement was
isolated and not deliberate. See González-Pérez, 778 F.3d at 19.
Defense counsel for Gil-Martínez and Peña-Santo immediately
objected to the statement and, although the district court made no
comment or ruling after the objection, the prosecutor immediately
retracted the statement by saying: "I don't believe I stated that.
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You will have to determine whether those drugs were on board, and
you'll see the video of them throwing them overboard."8
Also, while the district court did not give a curative
instruction at the time, we note that one was not requested.
Moreover, the district court repeatedly instructed the jury that
attorneys' arguments were not evidence. During the preliminary
instructions, the court stated, "[r]emember these are arguments.
It's what the Government intends to prove in the case. It's not
the actual evidence. The actual evidence will be coming in after
the witnesses start coming in and presenting exhibits." Then,
during the final jury instructions, the district court reiterated
that it was the government who had to prove intent beyond a
reasonable doubt. Specifically, it stated, "[f]or you to find a
defendant guilty of this crime, you must be convinced that the
Government has proven each of these things beyond a reasonable
doubt . . . that the defendants agreed to import cocaine and heroin
. . . [and] did so knowingly and intentionally." This militates
against finding prejudice. See United States v. Gentles, 619 F.3d
8We note that the correction itself is problematic because it
suggested that the video showed the defendants throwing packages
overboard, whereas it was agreed that the defendants could not be
identified as doing so from the video. No contemporaneous
objection was made, so we review for plain error. As with the
government's initial statement, the inaccurate reference in the
correction does not amount to plain error, particularly given the
admission in the testimony of the government's witness Agent Perry,
that the defendants could not be identified in the video as
throwing the packages overboard.
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75, 82 (1st Cir. 2010) ("finding no error where defendant failed to
request a curative instruction and court gave general instructions
before deliberation as to what the jury could and could not
consider as evidence" (citing United States v. Robinson, 473 F.3d
387, 398 (1st Cir. 2007))); see also González-Pérez, 778 F.3d at 21
("[W]e ordinarily presume that juries follow instructions.").
Finally, we find it unlikely that any prejudice surviving
the instructions could have affected the outcome of the case. The
evidence of Appellants' guilt was strong enough to prevent any
prejudice surviving the instructions from affecting the outcome of
the case. In addition, the fact that this statement was made at
the beginning of the trial also makes it less likely to have
affected the outcome of the case. See United States v. Mooney, 315
F.3d 54, 60 (1st Cir. 2002) ("The context of the prosecutor's
comments also weighs against finding that they likely affected the
outcome of the trial. The comments occurred during opening
arguments, not during summation where the last words the jury hears
have significant potential to cause prejudice."). In sum, because
we do not find that the prosecutor's statement "so poisoned the
well that the trial's outcome was likely affected," González-Pérez,
778 F.3d at 19 (quoting Rodríguez, 675 F.3d at 62) (internal
quotation marks omitted), Appellants' claim fails.
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2. Redirect Examination
On direct examination, Ms. Cacho, the chemist, testified
about the tests she performed on some of the drugs in order to
conclude that they were heroin and cocaine. During
cross-examination, Gil-Martínez's defense counsel asked Ms. Cacho
whether she knew if other tests -- such as fingerprint analysis
and DNA testing -- had been performed on the packages containing
the drugs. Defense counsel's point was that no tests linked the
Appellants to the drugs. Ms. Cacho testified that she did not do
anything other than analyze the chemical composition of the
substances. On redirect examination, the prosecutor asked Ms.
Cacho, "Did you watch the video of the defendants throwing the
drugs into the water?" Gil-Martínez's defense counsel objected and
stated that "[t]hat was not part of the cross-examination." The
district court allowed the question, to which Ms. Cacho responded,
"No."
Although they did not object at trial to the prosecutor's
question to Ms. Cacho on redirect examination, Peña-Santo and
Vicente-Arias now argue that it was a "loaded" and "speaking
question" that aimed to confuse the jury by making them believe
that there was direct evidence linking them to the crimes charged.
They allege that, because there was no direct evidence or witness
identifying them as throwing anything into the water and no one
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could tell from the video whether they were the ones throwing the
drugs overboard, they are entitled to a new trial.
Since Peña-Santo and Vicente-Arias failed to object to
the question at the trial level, our review is only for plain
error.9 Their claim falls short because, at the very least, they
failed to establish plain-error review's third and fourth prongs.
Specifically, Peña-Santo and Vicente-Arias have not shown that
their substantial rights were affected and that the fairness,
integrity, or public reputation of their judicial proceedings were
seriously impaired, especially because Ms. Cacho responded to the
question in the negative. Although they argue that the question
wrongly gave the impression that direct evidence (the video) showed
them throwing the drugs overboard, the fact that Ms. Cacho
responded that she had not seen the video -- coupled with the fact
that the jury examined the evidence (including the video) from
which the government could lawfully suggest that the jury draw an
inference that Appellants were the ones throwing the drugs
overboard10 -- sufficiently attenuated any effect that the question
9
We note that only Gil-Martínez objected to the prosecutor's
question at the trial level, but he did so on different grounds --
that the question went beyond the scope of the cross-examination --
and neither Peña-Santo nor Vicente-Arias joined his objection.
10
The government may suggest to the jury which inferences should
be drawn from the evidence as long as the government does not know
that the suggested inferences are false or has very strong reasons
to doubt those inferences. See United States v. Kasenge, 660 F.3d
537, 542 (1st Cir. 2011) (stating that "[a]lthough it is the jury's
job to draw the inferences, there is nothing improper in the
-28-
alone could have had. This is just not the kind of "blockbuster
error" for which "plain error review tends to afford relief."
Rodríguez, 675 F.3d at 64.
3. Closing Argument
Peña-Soto and Vicente-Arias also challenge the following
statement made by the government during its closing argument:
"That's not someone's personal drug stash right there. $3.2
million is not something that the four of them are going to use
casually at parties. Those are drugs that the four of them are
going to sell at a profit, $3.2 million." Although they did not
object to the statement at the trial level, Peña-Santo and Vicente-
Arias assert that it satisfies the plain error standard of review
since there was no evidence, either circumstantial or direct, that
they intended to sell drugs for profit or that they stood to gain
millions of dollars in profit. Relying on Arrieta-Agressot v.
United States, 3 F.3d 525, 527 (1st Cir. 1993), they claim that the
challenged statement was inflammatory by referring to money and
wealth, and that the evidence showed, at most, that they acted as
couriers (mules) or may have assisted on the boat. We disagree.
Although there was no direct evidence that Appellants
intended to sell the drugs for profit, there is no error -- plain
Government's suggesting which inferences should be drawn," but
noting that it is error for the government to propound inferences
that it knows to be false, or has a very strong reason to doubt)
(citations omitted).
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or otherwise -- in referencing the amount or worth of the drugs and
inviting the jury to draw the inference that the drugs were not for
personal use. See United States v. Bergodere, 40 F.3d 512, 518
(1st Cir. 1994) (noting that "we have long recognized that factors
such as the quantity and purity of the drugs confiscated by the
authorities can support an inference of intent to distribute"); see
also United States v. Meadows, 571 F.3d 131, 144-45 (1st Cir. 2009)
(At closing argument, the prosecution may "ask jurors to draw
reasonable inferences from the evidence."). And, even if the
Appellants would not be the ones actually to sell the drugs and
were instead couriers or mules, they were still part of the same
conspiracy to import and distribute (and eventually sell for
profit) controlled substances, which were the charged offenses.
Furthermore, Peña-Santo's and Vicente's reliance on
Arrieta-Agressot is misplaced. The improper comments in
Arrieta-Agressot had to do with the "evil" effect that the
defendants' actions had on society. There, we established that a
prosecutor's statement is improper if it serves no purpose besides
inflaming the passions and prejudices of the jury. 3 F.3d at 527.
Here, however, the prosecutor's reference to the worth of the drugs
had the legitimate purpose of both refuting the Appellants' mere
presence defense and suggesting that the jury draw an inference as
to the required element of intent. See Bergodere, 40 F.3d at 518.
Thus, their plain error claim fails.
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D. Peña-Santo's Cumulative Error Claim
Peña-Santo argues that if none of his previous claims of
error is sufficient to vacate his conviction, their cumulative
prejudicial effect requires that his conviction be vacated and his
case remanded for a new trial.
We have acknowledged that "[i]ndividual errors,
insufficient in themselves to necessitate a new trial, may in the
aggregate have a more debilitating effect." United States v.
Sepúlveda, 15 F.3d 1161, 1195-96 (1st Cir. 1993). "[C]laims under
the cumulative error doctrine are sui generis." Id. at 1196. When
reviewing such a claim a Court must consider:
each such claim against the background of the
case as a whole, paying particular weight to
factors such as the nature and number of []
errors committed; their interrelationship, if
any, and combined effect; how the district
court dealt with the errors as they arose
(including the efficacy -- or lack of efficacy
-- of any remedial efforts); and the strength
of the government's case.
Id. In addition, the length of the trial is another factor to be
considered. Id.Here, none of Peña-Santo's alleged errors -- which are
not many, considering the length of the trial -- resulted in
substantial prejudice and most of them are entirely without merit.
Furthermore, as previously explained, the evidence against Peña-
Santo was very strong, and the district court did not conduct the
trial in a manner that undermined his right to a fair trial. Thus,
-31-
we reject his contention that his conviction was tainted by
cumulative error. See United States v. Flemmi, 402 F.3d 79, 95
n.23 (1st Cir. 2005) ("[B]ecause we have found that none of [the
defendant's] individual complaints resulted in substantial
prejudice and that most are completely without merit, we reject the
final contention that his conviction was tainted by cumulative
error." (quoting United States v. DeMasi, 40 F.3d 1306, 1322 (1st
Cir. 1994))). "The Constitution entitles a criminal defendant to
a fair trial, not to a mistake-free trial." Sepúlveda, 15 F.3d at1196 (citing Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986));
United States v. Polito, 856 F.2d 414, 418 (1st Cir. 1988)).
E. Gil-Martínez's Sentencing Disparity Claim
Gil-Martínez claims that he received a disparately higher
sentence than co-defendant Vicente-Arias, even though there was no
evidence of dissimilar conduct among them and they both had the
same Criminal History Category ("CHC").
1. Background
The Presentence Investigation Report ("PSR") recommended
a Guidelines sentencing range ("GSR") for Gil-Martínez of 235 to
297 months of imprisonment.11 The PSR did not identify any
11
Pursuant to U.S. Sentencing Guidelines Manual § 3D1.2(d) (2004)
("U.S.S.G."), Counts One and Two were grouped together. These
offenses resulted in a base offense level of thirty-eight, pursuant
to U.S.S.G. § 2D1.1. Gil-Martínez had no previous criminal history
and had a CHC of I. This yielded a GSR of 235 to 297 months of
imprisonment.
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information that would warrant a role adjustment or a departure.
At the sentencing hearing, the district court considered the PSR's
recommended GSR and took into account Gil-Martínez's "unfortunate
rearing and upbringing." It considered that at times Gil-Martínez
was unable to eat because his family could not afford food, he
lived in a wooden house with a dirt floor, and he only had a fourth
grade education because he left school at a young age to help
support his family. Gil-Martínez argued that a within-the-
Guidelines sentence would be unreasonable when compared to Vicente-
Arias's sentence of 130 months of imprisonment. He then requested
to be sentenced to 120 months of imprisonment, the statutory
minimum. He argued that sentencing him to a greater term of
imprisonment would create a sentencing disparity.
The district court considered Gil-Martínez's request for
a sentence similar to that of Vicente-Arias, who received a minor
role reduction. The government opposed Gil-Martínez's request for
a downwardly variant sentence of 120 months, arguing that, while
Vicente-Arias had received a minor role reduction, Gil-Martínez had
a number of roles onboard the yola, which distinguished him from
Vicente-Arias. The government pointed out that Gil-Martínez had
admitted to operating and fueling the yola. The district court
concluded that it did not have any information that would support
granting Gil-Martínez a minor role reduction like that Vicente-
Arias received or otherwise sentencing him to a term of
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imprisonment the same as or similar to that of Vicente-Arias. The
court also considered the sentences imposed on other co-defendants.
It noted that, although Peña-Santo received the statutory minimum
sentence of 120 months of imprisonment, Peña-Santo's
characteristics were different from those of Gil-Martínez because
Peña-Santo was facing serious health conditions and his life
expectancy was less than six months. The district court noted that
although Gil-Martínez compared himself only to Vicente-Arias and
Peña-Santo, the district court had also sentenced another
co-defendant who had pleaded guilty pursuant to a straight plea to
188 months of imprisonment. The district court then stated that,
in sentencing each defendant, it had taken into consideration "the
particular situation of each and every one defendant" and had
"individualized sentencing." After concluding that the court did
not have any information to support a minor role reduction, and
that Gil-Martínez was in good health, the district court imposed on
Gil-Martínez a downwardly variant sentence of 192 months of
imprisonment.
2. Standard / Scope of Review
We review challenges to the reasonableness of a sentence
"under a deferential abuse-of-discretion standard." Gall v. United
States, 552 U.S. 38, 41 (2007). We first consider "whether the
district court made any procedural errors, such as 'failing to
calculate (or improperly calculating) the Guidelines range,
-34-
treating the Guidelines as mandatory, failing to consider the
section 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen
sentence -- including an explanation for any deviation from the
Guidelines range.'" United States v. Maisonet-González, 785 F.3d
757, 762 (1st Cir. 2015) (quoting United States v. Rivera-Moreno,
613 F.3d 1, 8 (1st Cir. 2010)). If the district court has
committed no procedural error, we then review the substantive
reasonableness of the sentence imposed for abuse of discretion.
United States v. Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013).
"When conducting this review, we take into account the totality of
the circumstances, including the extent of any variance from the
Guidelines." Maisonet-González, 785 F.3d at 762 (quoting Trinidad-
Acosta, 773 F.3d at 309). "A sentence will withstand a substantive
reasonableness challenge so long as there is 'a plausible
sentencing rationale and a defensible result.'" Id. (quoting
United States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008)).
In fashioning a sentence, judges must consider "the need
to avoid unwarranted sentencing disparities among defendants with
similar records who have been found guilty of similar conduct." 18
U.S.C. § 3553(a)(6). Although this provision is primarily aimed at
national disparities, rather than those between co-defendants,
Martin, 520 F.3d at 94, we have also held that if "'identically
situated defendants' receive significantly disparate sentences, red
-35-
flags may indeed be raised." United States v. Rivera-López, 736
F.3d 633, 636 (1st Cir. 2013) (quoting United States v. Mueffelman,
470 F.3d 33, 41 (1st Cir. 2006)).
3. Analysis
We afford the district court wide discretion in
sentencing because, after the court has calculated the GSR,
"sentencing becomes a judgment call, and a variant sentence may be
constructed based on a complex of factors whose interplay and
precise weight cannot even be precisely described." United States
v. Politano, 522 F.3d 69, 73 (1st Cir. 2008) (quoting Martin, 520
F.3d at 92). Gil-Martínez does not allege that the district court
failed to consider the 18 U.S.C. § 3553(a) sentencing factors --
including the need to avoid sentencing disparities -- or commit any
other procedural error. Rather, his challenge goes to the weighing
of the section 3553(a) sentencing factors, specifically the factors
establishing the need to avoid sentencing disparities and the
history and characteristics of the defendant. As Gil-Martínez was
sentenced below the applicable GSR, his challenge to the
substantive reasonableness of his sentence faces an uphill battle.
See United States v. Joubert, 778 F.3d 247, 256 (1st Cir. 2015)
("When, as in this case, a district court essays a substantial
downward variance from a properly calculated guideline sentencing
range, a defendant's claim of substantive unreasonableness will
-36-
generally fail." (quoting United States v. Floyd, 740 F.3d 22,
39-40 (1st Cir. 2014))).
As the Government correctly contends, a district court's
consideration of sentencing disparity aims primarily at the
minimization of disparities among defendants nationally and, while
avoidance of disparities among co-defendants may be considered, "a
defendant is not entitled to a lighter sentence merely because his
co-defendants received lighter sentences." United States v.
Wallace, 573 F.3d 82, 97 (1st Cir. 2009) (quoting United States v.
Marceau, 554 F.3d 24, 33 (1st Cir. 2009)). Furthermore, contrary
to Gil-Martínez's claim, he is not entitled to the same sentence as
Vicente-Arias because they are not "identically situated," inasmuch
as Vicente-Arias received a minor role reduction12 and Gil-Martínez
did not. See Rivera-López, 736 F.3d at 636; United States v.
Rivera-González, 626 F.3d 639, 648 (1st Cir. 2010). At the
sentencing hearing the district court stated that it would not
grant Gil-Martínez a minor role reduction because it did not have
any information supporting a minor role reduction, and, as the
government argued, the information was to the contrary, with
Gil-Martínez having admitted to operating and fueling the yola.
The district court concluded that this information distinguished
Gil-Martínez's role in the conspiracy from that of Vicente-Arias.
Gil-Martínez has failed to show that these findings of fact
12
This resulted in Vicente-Arias having a lower GSR.
-37-
regarding his role in the conspiracy were clearly erroneous. See
United States v. Torres-Landrúa, 783 F.3d 58, 66 n.10 (1st Cir.
2015). In addition, although Gil-Martínez selectively compares
himself only to Vicente-Arias, the record shows that the district
court did take into consideration the need to avoid sentencing
disparities not only in relation to Vicente-Arias, but also in
relation to his other co-defendants. It is clear from the record
that the district court also took into consideration that another
co-defendant, who had pleaded guilty pursuant to a straight plea,
had received a sentence of 188 months of imprisonment, and that
Peña-Santo, who was sentenced to the statutory minimum, received
that sentence because he was sick and his life expectancy was less
than six months. Because it is evident that the district court did
consider the need to avoid sentencing disparities among defendants,
as well as the other sentencing factors, sufficiently explained its
chosen sentence, and arrived at a defensible result,
Maisonet-González, 785 F.3d at 762, Gil-Martínez's challenge to the
reasonableness of his downwardly variant sentence fails.
III. Conclusion
The record reflects that Appellants were afforded a fair
trial, that the expert testimony of Agent Conchin was proper, and
the evidence of their guilt was more than sufficient to support the
jury's verdicts. In addition, the record shows that Gil-Martínez's
-38-
sentence was appropriate. Thus, Appellants' convictions and Gil-
Martínez's sentence are affirmed.
Affirmed.
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