United States v. Shepard-Fraser , 784 F.3d 11 ( 2015 )

United States Court of Appeals
For the First Circuit
Nos. 12-1300
12-2220
UNITED STATES OF AMERICA,
Appellee,
v.
JORGE CORREA-OSORIO; DENISE SHEPARD-FRASER,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Thompson, Lipez, and Barron,
Circuit Judges.
Alejandra Bird López for appellant Jorge Correa-Osorio.
Claudia Leis Bolgen, with whom Bolgen & Bolgen was on brief,
for appellant Denise Shepard-Fraser.
John A. Mathews II, 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.
April 22, 2015
THOMPSON, Circuit Judge.
OVERVIEW
Jorge Correa-Osorio and Denise Shepard-Fraser stand
convicted of cocaine offenses. Both ask us to reverse, though for
different reasons. Correa, for example, thinks the judge quadruply
erred — first by admitting identification evidence (because a
witness made him off a highly suggestive and unreliable procedure),
next by admitting key statements under the coconspirator exception
to the hearsay rule (because the government showed neither that he
was in on the conspiracy nor that the statements furthered the
conspiracy's aim), then by admitting evidence of a cocaine-filled
suitcase (because the evidence was irrelevant, prejudicial, and
confusing), and finally by committing cumulative error (because the
net effect of what the judge did made his trial fundamentally
unfair). He is wrong. Shepard, for her part, thinks the judge
doubly erred — first by finding the evidence sufficient to support
her convictions (because the government did not prove guilty
knowledge) and then by giving her a 128-month prison term (because
the sentence was procedurally and substantively unreasonable). But
she is wrong too. We will explain our thinking shortly, right
after we set out the case's background.
BACKGROUND
This case should seem familiar to any regular reader of
the Federal Reporter, given that it concerns yet another major
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cocaine conspiracy involving a creative distribution network, a
large cast of coconspirators (some with colorful nicknames), and a
turncoat who became the government's star witness.
(1)
The Conspiracy at a Glance
Running from June 2006 to June 2008, the conspiracy — led
by a man named Manuel Santana-Cabrera (also known as "El Boss") —
operated like this. Recruited couriers took commercial flights
from San Juan to mainland cities, including Philadelphia and New
York. Before boarding, they would check luggage filled with old
clothes, pillows, blankets, etc. — stuff that could get through
security without incident. Other conspirators working at the
airport would switch the checked luggage with luggage packed with
cocaine. Couriers would then fly to their destinations, claim
their checked bags, and hand them off to a taxi driver — known to
some as "Manopla" — who was in on the conspiracy too. Couriers
would make $3,000 a trip.
(2)
The Conspiracy's Unraveling
In September 2006 DEA agents in Philadelphia heard from
their colleagues in San Juan that there was something fishy about
the flight itineraries of José Vega-Torres and two others, who were
flying from San Juan to New York after a layover in Philly.1 The
Philadelphia agents looked for and found the trio's bags. After a
1
DEA stands for Drug Enforcement Administration.
-3-
drug-detecting dog alerted to the odor of drugs, agents got a
search warrant. Their search struck pay dirt: each bag had at
least 13 brick-shaped objects wrapped in a blanket, and the objects
field-tested positive for cocaine.
Agents arrested Vega and his two sidekicks in New York.
Vega initially told a pack of lies about why he had cocaine in his
luggage, who had given it to him, who had asked him to go to New
York, and who had chauffeured him to the airport. But he
eventually agreed to come clean and cooperate in exchange for the
government's promise not to indict his wife on conspiracy-related
charges too (she was with him on one of his smuggling trips to New
York). His cooperation later led to the arrest of Correa and
Shepard (plus others) and to much of the evidence the government
used at trial (Correa and Shepard were tried together).
(3)
The Case Against Correa
At trial Vega identified Correa, calling him by a
nickname, "El Don." And he testified about the times that he saw
him in 2006, apparently (he did not recall the exact dates).
The first time, Vega had gone to leader Santana's house
with a conspirator named Israel Martes-Canales (nicknamed "Shaq").
While there, he and Martes helped load six suitcases into the trunk
of Correa's car. The suitcases were similar in size and weight to
drug luggage Vega had picked up in New York. Correa told Santana
that he was actually using his wife's car and that he would "get in
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trouble" if she found out what he was up to. And after Correa
left, Santana told Vega that "Don" was "in charge of taking bags
into the airport and putting them inside the plane."
Vega later saw Correa working at the San Juan airport.
About to jet off to New York to deliver more cocaine, he spotted
Correa on the tarmac, loading bags onto a plane.
As for the last occasion, Vega went one time with Martes
and another conspirator named Ricardo Soler-Rivera to drop a bag
off at Correa's house. Soler said the bag had $90,000, just before
he gave it to Correa.
Seeking to undermine his credibility, Correa's lawyer
extensively cross-examined Vega on a number of topics. Vega, for
example, testified about the inducements he received for
cooperation, the big one being the government's pledge not to go
after his wife if he played ball. Beyond that, he confessed to not
telling agents about "El Don" during an early debriefing, even
though other conspirators' names easily rolled off his tongue. And
despite saying how a conspirator told him that the mainland-bound
suitcases contained cocaine, he admitted to not personally knowing
whether that was in fact true. He also admitted to never seeing
Correa handle any of his checked luggage. What is more, he said
that "El Don" had braided hair — something the defense played up
because Correa later testified that he did not have braids in 2006.
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On redirect Vega said that he personally knew Correa was
part of the Santana-drug-trafficking cabal. But the government did
not just rely on Vega's testimony to help tell the conspiracy's
story. As part of its case-in-chief, the government, for example,
also presented (over defense objections) evidence concerning the
seizure of a cocaine-filled suitcase at the San Juan airport on
October 4, 2007. The prosecution's theory was that evidence about
the suitcase constituted overt-act evidence linking the defendants
to the conspiracy. Here is what you need to know.
Marionel Báez-Peña — an airport-worker-turned-convict —
testified that he loaded drug luggage onto planes for two people:
kingpin Santana and a person named Maximo Bencosme-Aybar (also
known as "Phantasma"). Báez had done two jobs for Santana. And he
was set to do one for Bencosme on October 4.2 But he was not
feeling well that day, so he asked airport-worker Miguel Ramos-
Santi to help out. Another airport worker, Luis del-Valle-Febres,
testified that early on the morning of October 4, Ramos asked him
to put a tag on a suitcase left on a cart. And del-Valle did just
that.
Unfortunately for those involved, DEA-agent Hector Tapia-
Gerena — a member of the team investigating Santana's drug doings
2
Responding to the prosecutor's request that he "[t]ell the
jury what happened in October of 2007," Báez said, "[w]ell, in
October of 2007 I had a job with [Bencosme] on that day." The
"job," Báez explained, was to stow a drug bag on a departure-bound
plane.
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— got (according to his testimony) a tip that day about a
suspicious suitcase at the San Juan airport. Springing into
action, he headed for the airport's baggage carousel and spied an
unattended suitcase on a cart. The bag's tag read September 23.
A drug-sniffing dog detected the presence of contraband. And x-
rays of the suitcase showed — in outline — block-shaped items.
Agents opened the bag and saw pillows, towels, and t-shirts, plus
13 bricks of powder that tested positive for cocaine. One thing
led to another, and agents arrested Báez, Ramos, and del-Valle.
Testifying in his own defense, Correa denied important
elements of the accusations against him. For example, he said that
until his arrest, he had never met Santana. And he added that the
first time he laid eyes on Vega was in court. He also painted a
picture of himself as an educated, intelligent person of strong
character who lived a very simple lifestyle — one incompatible with
a criminal way of life. He insisted too that he did not have
access to some areas while working at the airport and so could not
have snuck drug bags in as alleged.
(4)
The Case Against Shepard
The case against Shepard essentially rests on a single
event — her flying from San Juan to New York on September 9 and
back again on September 10. The crucial testimony came from Vega,
who had known her for about 20 years and who had what he described
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as a "friendly" relationship with her in 2006. This is what he had
to say.
Already in New York, Vega and Martes went with cabbie
Manopla to a New York airport to pick up Shepard and two others.
Vega saw the threesome walking from the airport to the cabstand,
each carrying two suitcases. Vega and Martes helped put the bags
in the taxi's trunk. Manopla then dropped everyone off at a hotel
and sped off with the luggage. The accommodations were a little
tight — the five from the cab (Vega, Martes, Shepard, and her two
companions) stayed with four or five others in a single room a
conspirator (the record does not say who) had booked for what ended
up being Shepard's one night there. Everyone — except for Vega —
came from the same housing project in Puerto Rico.
At some point (the record does not indicate exactly
when), Santana called Martes and ordered him to pick up a cash-
filled bag at another locale and get the money back to Puerto Rico.
So Martes and Vega hopped in a cab, grabbed a bag of $261,000 in
cash, and headed back to the hotel. They paid each person in the
room — including Shepard — $3,000 for helping get the suitcases to
New York. Then they rolled up the rest of the money in socks and
crammed the rolls into their cohorts' luggage. Vega, however, did
not say who else was there when he and Martes rolled and packed the
cash — most importantly for present purposes, he did not say
whether Shepard saw the "show."
-8-
Martes flew back to San Juan, apparently to handle a
pressing matter (it is unclear just when he left). Vega stayed
behind, bought the others — including Shepard — tickets to San
Juan, and jetted back with them on September 10 (their flight left
New York at 9:00 p.m. on September 10 and landed in San Juan at
12:55 a.m. the next day). Martes and Soler rendezvoused with the
group at the San Juan airport and drove them to Santana's house.
Only Vega and Martes went inside, however. And there they gave
Santana the cash.
Looking to score some points on cross-examination (she
presented no evidence in her defense), Shepard's lawyer got Vega to
talk about his run-ins with the law. Her attorney also got him to
repeat that he had lied to federal agents a bunch of times before.
And her lawyer got him to admit that he could not look Shepard in
the eye in court (other than when he pointed to her sitting at
counsel table). But the prosecution's redirect brought out that he
personally knew that she was a member of the Santana-drug-
trafficking syndicate (a damning bit of evidence when it comes to
one of her arguments on appeal, i.e., that she hadn't a clue what
was in the suitcases; more on this later).
(5)
Verdicts and Sentences
After hearing all the evidence, the jury convicted Correa
and Shepard each on two counts: conspiring to distribute cocaine
and possessing with intent to distribute cocaine. See 21 U.S.C.
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§§ 841(a)(1), 841(b)(1)(A), and 846. The judge then handed out
stiff prison sentences, with Correa and Shepard getting concurrent
terms of 132 months and 128 months, respectively.
Which takes us to today's appeals.3
CORREA'S APPEAL
Correa believes that the judge slipped by admitting
Vega's in-court identification of him. He also thinks that the
judge stumbled by admitting three "hearsay" statements under the
coconspirator exception: Vega's statement calling him "El Don,"
Santana's statement calling "El Don" the go-to guy for getting drug
bags on planes, and Soler's statement saying a bag for "El Don" had
$90,000. On top of that he thinks that the judge blundered by
admitting evidence concerning the suitcase seized on October 4.
And lastly he believes that the judge's errors — even if harmless
on their own — cumulatively violated his fair-trial rights. Though
passionately argued, these points do not get him the reversal he
seeks.
(1)
In-Court Identification
Leading things off is Correa's claim that Vega identified
him at trial under unduly-suggestive conditions — an
identification, he adds, that was not otherwise reliable. He never
raised this objection below, limiting us to plain-error review — a
3
We will fill in more details as we go along.
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standard that requires him to prove four things: (1) an error, (2)
that is clear or obvious, (3) which affects his substantial rights
(i.e., the error made him worse off), and which (4) seriously
impugns the fairness, integrity, or public reputation of the
proceeding. See, e.g., United States v. Olano, 507 U.S. 725, 734-
37 (1993); United States v. Kinsella, 622 F.3d 75, 83 (1st Cir.
2010). Applying that not-so-defendant-friendly standard, see
United States v. Williams, 717 F.3d 35, 42 (1st Cir. 2013) — and
knowing too that we must fight off any "reflexive inclination" to
reverse unpreserved errors, see Puckett v. United States, 556 U.S.
129, 134 (2009) — we see no way to reverse here.
First, some context. Vega testified for the government
over three days. During the first day or so he talked at length
about a number of things, including: his personal life (he is
married with three children), how and why he joined the Santana-
commanded conspiracy (a friend told him about it, knowing he needed
money), what he did for the conspiracy (helping get cocaine to New
York and cash back to Puerto Rico), and the fallout from his arrest
in New York (pleading guilty to drug crimes, agreeing to cooperate
with authorities, and getting benefits for his cooperation).
On the second day Vega brought up Shepard (explaining,
for example, how he had known her for two decades and was
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"friendly" with her in 2006). And he identified her for the jury.4
That afternoon — following a lunch break — the prosecutor asked
Vega about his visiting Santana's house. On one of those
occasions, Vega said, a "person known as 'the Don' was there."
Responding to a question from the judge, Vega clarified that
Santana and "El Don" were different people. And if "El Don" is in
the "courtroom," the prosecutor said to Vega, "can you describe him
or her?" "Yes," Vega replied, "[t]he gentleman with the long-
sleeved shirt." Correa's lawyer "concede[d] that [Vega] is
referring to my client."
Kicking off cross-examination, Correa's counsel asked
Vega if he had met with DEA agents and prosecutors to "discuss what
you were going to testify" to. "Yes," Vega answered. Counsel (as
we said) then later tried to chip away at the in-court
identification, getting Vega to say that "El Don" had braided hair
(reminiscent of a look favored by a Puerto Rican rapper known as
"Don Omar") and eliciting from Correa that he (Correa) did not have
braids in 2006 (which again is around the time Vega supposedly saw
him). And counsel repeated this misidentification theory in his
closing argument, telling the jury that Vega simply "confus[ed] my
client with somebody else." Vega had an obvious motive to lie,
4
"If you see [Shepard]," the prosecutor said, "could you
describe what he or she is wearing for the jury"? "She is wearing
a blue jacket," Vega replied. Shepard's lawyer said he had no
objection "whatsoever" to the in-court identification.
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counsel also stressed, because his wife's freedom was at stake.
Now back to Correa's newly-minted argument. He believes
that because he was the only male defendant at defense table, Vega
obviously knew whom he should single out — any watcher of TV crime
dramas can surely tell which person in the courtroom is the
defendant, he adds. And this procedure, he says, was so
unnecessarily suggestive that it raised a very serious likelihood
of misidentification — meaning the judge should have barred the
evidence on due-process grounds, even without an objection from
counsel. We see things differently.
The Constitution, caselaw holds, guards against
convictions tied to evidence of questionable reliability — not by
banning the evidence's admission, but by giving defendants the
tools to convince jurors the evidence is not belief-worthy. See
Perry v. New Hampshire, 132 S. Ct. 716, 723 (2012). There is,
however, a small exception for police-arranged identifications —
think photo arrays, showups, and lineups. See id. at 724. Due
process, we see, bars trial courts from admitting such evidence "if
the . . . identification procedure was so impermissibly suggestive
as to give rise to a very substantial likelihood of irreparable
misidentification" — irreparable because trial mechanisms would not
help a jury distinguish between reliable and unreliable
identifications. See Neil v. Biggers, 409 U.S. 188, 197 (1972)
(quoting Simmons v. United States, 390 U.S. 377, 384 (1968)); see
-13-
also Manson v. Brathwaite, 432 U.S. 98, 116 (1977). Based on the
Biggers line of cases, courts confronted with a challenge to a
police-run identification process must ask, first, whether the
process was unduly suggestive, and, if yes, whether the
identification was still reliable given the totality of the
circumstances.5 See, e.g., United States v. Arthur, 764 F.3d 92,
99-100 (1st Cir. 2014); United States v. Jones, 689 F.3d 12, 17
(1st Cir. 2012). Deterring police misuse of identification
procedures is the key principle animating what we will call the
Biggers test. See Perry, 132 S. Ct. at 726.
The deterrence rationale falls away, obviously, if the
police did not arrange the identification. And thus, our judicial
superiors tell us, the Biggers test does not apply and an
altogether different method of analysis takes center stage: if a
witness identifies the defendant under circumstances that are not
police-rigged, any dispute about the identification's reliability
is for the jury, with the defendant protected by ordinary criminal-
trial safeguards — the right to an effective counsel who can try to
poke holes in the witness's identification, the right to be
presumed innocent and be convicted by a jury of one's peers only by
proof beyond a reasonable doubt, etc. See id. at 723, 728-30
5
Reliability typically turns on (1) the witness's opportunity
to look at the person, (2) his degree of attention, (3) the
accuracy of his prior description, (4) how sure he was when he made
the identification, and (5) the amount of time between the crime
and the identification. See, e.g., Biggers, 409 U.S. at 199-200.
-14-
(abrogating United States v. Bouthot, 878 F.2d 1506, 1516 (1st Cir.
1989), among other cases).
A key question is: In cases like ours — involving a
prosecutor's securing an in-court identification under supposedly
suggestive circumstances — which approach applies, Perry's or
Biggers's?6 One could argue either way.
On the one hand: In a recent case bearing an uncanny
resemblance to Correa's — involving as it does in-court
identifications of a male defendant seated at counsel table, with
the police playing no part in his getting picked out — the Eleventh
Circuit (by a 2-1 vote) read Perry as holding that the Biggers test
applies only if the complained-of suggestion arose from improper
police conduct. See United States v. Whatley, 719 F.3d 1206, 1215-
17 (11th Cir. 2013). And staying with Perry, that Circuit rebuffed
the defendant's due-process challenge, concluding that he got the
same process "identified in Perry as constitutionally sufficient"
for persons not identified through police-rigged procedures. Id.
at 2016-17.
On the other hand: The Seventh Circuit (by a 2-1 vote)
— after citing Perry — more recently used the Biggers test to
reject a due-process attack on an in-court identification of a
6
The Supreme Court handed down Perry after Correa's trial.
But we consider the law as it exists on appeal in deciding whether
a judge's action was plain error. See Henderson v. United States,
133 S. Ct. 1121, 1126 (2013).
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black male seated at defense table. See Lee v. Foster, 750 F.3d
687, 691-92 (7th Cir. 2014). Because nothing in the record showed
that the witness had made the identification "solely on the basis
of [the defendant's] race" or that the prosecutor had asked the
witness to point to the black male at counsel table, that Circuit
found no undue suggestion. Id.
We need not choose sides in this debate today. And that
is because Correa's identification argument fails under either
Perry or Biggers.7
(a)
Applying Perry
Assuming without deciding that Perry governs our
situation, we note the following. The jurors had ring-side seats
for Vega's identification. Hearing him speak and reading his
facial expressions and body language, they were best positioned to
detect any hint of unsureness when he singled-out Correa. They
also had an up-close look at Vega during the defense's cross-
examination of him — and counsel cross-examined him with gusto,
7
United States v. Espinal-Almeida does not say which case
rules supreme in our situation. Quoting Perry, we noted that "due
process 'does not require a preliminary judicial inquiry into the
reliability of an eyewitness identification when the identification
was not procured under unnecessarily suggestive circumstances
arranged by law enforcement.'" 699 F.3d 588, 603 n.16 (1st Cir.
2012) (quoting Perry, 132 S. Ct. at 730) (emphasis added by
Espinal-Almeida). Espinal-Almeida focused on police conduct
(specifically, whether something an officer had done meant an
identification was police-arranged), not on prosecutorial conduct.
So we can put that case to one side. Also, and interestingly,
neither side has briefed the issue — both assume Biggers controls.
-16-
getting him to say, for example, that "El Don" had braided hair
when Correa testified that he did not wear his hair that way in
2006. Plus, the jurors heard counsel's attack on Vega's
credibility during summation, with counsel arguing (among other
things) that Vega had "confus[ed] my client with somebody else" and
that he had every incentive to tell agents whatever they wanted to
hear (keeping his wife out of jail was incentive number one). And
of course the jury found Correa guilty despite the presumption of
innocence and the beyond-a-reasonable doubt burden of proof.
Correa protests that the identification does not square
with due process because he was seated at the defense table when
Vega fingered him. But the government did not put him there. Also
keep in mind that he had a constitutional right to be present at
trial, see Illinois v. Allen, 397 U.S. 337, 338 (1970), and
defendants (who have to sit somewhere, clearly) usually sit at
counsel table to assist in their defense.
Simply put, Correa received all the safeguards Perry
stamped sufficient to protect a defendant's due-process rights in
this context. See Perry, 132 S. Ct. at 728-30 (explaining that the
way to handle unreliable evidence is through the adversary system,
which includes the assistance of counsel, the ability to confront
witnesses, the right to introduce evidence, and the presumption of
innocence). Which is why his argument loses under Perry.
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(b)
Applying the Biggers Test
Alternatively, assuming without deciding that the Biggers
test holds sway, we have this to say. Sure, every in-court
identification has "some element of suggestion." Perry, 132 S. Ct.
at 727.8 What matters is whether there was undue suggestion (words
like "unnecessary" and "impermissible" can substitute for "undue,"
by the way). And that is where Correa gets tripped up.
An in-court identification may be unduly suggestive if,
for example, the prosecutor drew the witness's attention to the
defendant (say, by pointing to him) or asked questions that
suggested the hoped-for result,9 or if the defendant looked
different from others in the courtroom or at counsel table when the
identification occurred (say, by being the only black person
8
The sainted Judge Friendly, see David M. Dorsen, Henry
Friendly: Greatest Judge of His Era (2012), once called in-court
identifications — "where the defendant is sitting at the counsel
table" — "perfunctory," labeled their effect "weak[]," and said
"only" their "weakness . . ., along with [their] traditional
character, saves [them] from condemnation as being [themselves]
impermissibly suggestive." Brathwaite v. Manson, 527 F.2d 363, 367
n.6 (2d Cir. 1975), rev'd on other grounds, 432 U.S. 98 (1977).
"[T]here is always the question how far in-court identification is
affected by the witness' observing the defendant at the counsel
table," he also said. United States ex rel. Phipps v. Follette,
428 F.2d 912, 915 (2d Cir. 1970). But he noted too that "[m]ere
statement" of this problem "indicates what great weight must be
given to the determination of the judge who saw and heard the
witness." Id.
9
See, e.g., United States v. Greene, 704 F.3d 298, 307-08
(4th Cir. 2013).
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present).10 These are constitutional danger zones, for sure. Yet
the record reveals no such problems here, however. And Correa does
not argue otherwise — these special problems do not appear in his
brief and so any argument along those lines is waived. See, e.g.,
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
Instead he basically says that he had a huge "pick me"
sign on him because (again) he was the only male defendant at
counsel table, and it was that — and that alone — which made the
situation unduly suggestive.11 But he does not cite — and we could
not find — any federal-appellate case supporting his position (our
court has not addressed the issue), though we did spy a case from
another circuit undercutting his claim. See United States v. Bush,
749 F.2d 1227, 1232 (7th Cir. 1984) (noting that "[t]he only
suggestive circumstance identified by defendant is that he sat at
counsel table" and holding that "[t]his circumstance alone is not
10
See, e.g., United States v. Rogers, 126 F.3d 655, 657-58
(5th Cir. 1997); United States v. Murdock, 928 F.2d 293, 297 (8th
Cir. 1991); United States v. Archibald, 734 F.2d 938, 942-43 (2d
Cir.), modified & reh'g denied, 756 F.2d 223 (2d Cir. 1984). But
see United States v. Curtis, 344 F.3d 1057, 1063 (10th Cir. 2003)
(agreeing that identifying a "[d]efendant as the robber, when the
robber was a black man and [d]efendant was the only black man in
the courtroom, might be somewhat suggestive, but it is not
unconstitutionally so").
11
His trial lawyer was a man, we note in passing.
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enough to establish a violation of due process").12 Simply put, he
never gets to first base under the Biggers test.
(c)
Summing up so Far
The plain-error standard is "extremely" difficult to
prove. United States v. Vigneau, 187 F.3d 70, 82 (1st Cir. 1999).
And rightly so, since the standard's central aim is "to encourage
timely objections," see United States v. Dominquez Benitez, 542
U.S. 74, 82 (2004) — a goal that (hopefully) deters unsavory
sandbagging by lawyers (i.e., their keeping mum about an error,
pocketing it for later just in case the jury does not acquit) and
gives judges the chance to fix things without the need for appeals
and new trials, see Puckett, 556 U.S. at 134, 140. But what
happened to Correa was not plain error, because it was not error
when measured against either Perry or Biggers.
12
A few months back Massachusetts's highest court — the
Supreme Judicial Court ("SJC") — said that when "a prosecutor asks
a witness at trial whether he or she can identify the perpetrator
of the crime in the court room, and the defendant is sitting at
counsel's table, the in-court identification is comparable in its
suggestiveness to a showup identification." Commonwealth v.
Crayton, 21 N.E.3d 157, 166 (Mass. 2014). But the SJC's opinion
turned on state common-law principles, not on federal (or even
state) constitutional ones. See id. at 169 n.16. And the SJC
acknowledged that other courts hold that "'[t]he inherent
suggestiveness in the normal trial setting does not rise to the
level of constitutional concern.'" Id. at 172 n.21 (quoting Byrd
v. State, 25 A.3d 761, 767 (Del. 2011)). Clearly then this case is
not enough for Correa to prevail on plain error. See, e.g., United
States v. Marcano, 525 F.3d 72, 74 (1st Cir. 2008) (per curiam)
(emphasizing "that plain error cannot be found in case law absent
clear and binding precedent").
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(d)
Responding to the Dissent13
The dissent thinks we are all wrong on the Biggers issue,
insisting that the prosecutor so clearly manipulated the in-court
identification — using an unnecessarily-suggestive process — that
the judge should have found a Biggers violation without help from
counsel. See United States v. Frady, 456 U.S. 152, 163 (1982)
(explaining that plain error means an error so obvious that a judge
is "derelict in countenancing it, even absent the defendant's
timely assistance in detecting it"). But nothing the dissent says
points to plain error — i.e., an "indisputable" slip up on the
judge's part, given controlling precedent. See United States v.
Jones, 748 F.3d 64, 70 (1st Cir. 2014) (citing United States v.
Marcus, 560 U.S. 258, 262 (2010)); see also United States v.
Caraballo-Rodriguez, 480 F.3d 62, 70 (1st Cir. 2007); United States
v. Diaz, 285 F.3d 92, 97 (1st Cir. 2002).
Here is the essence of the dissent's undue-suggestion
thesis: The prosecutor's prepping Vega, having him testify for
over a day (which gave him plenty of time to eye Correa at counsel
table), and then (and only then) having him pick Correa out
infracted due process — an in-your-face infraction that should have
spurred the judge to strike the identification. The prosecutor,
the dissent adds, should have done one of two things instead —
13
We use "dissent" to refer to Judge Barron's separate opinion
concurring in part and dissenting in part.
-21-
first, relied on an identification Vega made pretrial through non-
suggestive means (no pretrial ID appears in the record, though),
or, second, relied on an in-court lineup (we will call these his
alternative-identification methods). But in our experience nothing
odd went down here — certainly nothing amounting to a clear-cut
constitutional violation.
Prosecutors (like other lawyers) prep witnesses (even if
just to tell them to testify truthfully). And there is no hint in
the record that the prosecutor crossed any line in prepping Vega
(for example by coaching him to pick Correa). Importantly too, the
dissent cites no law (let alone binding law) — and we know of none
— saying that routine witness prep equals undue suggestion.
As for the identification's timing, even the dissent
admits that prosecutors can (within wide margins) present their
case in the order they wish. And the prosecutor did what any
lawyer would do, eliciting background info from Vega — about how
the Santana-controlled conspiracy ran (who did what, with whom, for
whom, where, and when), for instance — which helped establish a
foundation for identifying Correa.14 Regardless, the dissent again
cites no settled law — and we are aware of none — holding a
prosecutor acts in an unduly-suggestive way simply by having a
14
One of Correa's counsel's favorite objections was lack of
foundation.
-22-
witness testify (here, for a day and a half) before identifying the
accused.15
What is left is the dissent's talk of alternative-
identification methods. Once again the dissent cites no
controlling authority — and we found none — requiring out-of-court
identifications or in-court lineups over the "usual practice" of
having a witness identify the defendant from the stand (again,
assuming the usual practice does not stray into the constitutional
danger zone most recently referenced in footnote 15).16
15
We say "simply" because we three judges agree that certain
circumstances not present here — (1) a prosecutor's drawing a
witness to the defendant or asking questions directly suggesting
the desired-for result, or (2) a defendant's looking different from
others in the courtroom — might make the in-court identification
process unduly suggestive.
16
See United States v. Brien, 59 F.3d 274, 278 (1st Cir. 1995)
(mentioning the "usual practice"). Staying with the in-court-
lineup issue, we see that a defendant can ask for — but has no
right to — one or "other particular procedure[s]." United States
v. Pérez-González, 445 F.3d 39, 48 (1st Cir. 2006); Brien, 59 F.3d
at 279 (noting that to change the usual practice, it was "up to"
defense counsel to offer a plan, which the judge could reject if he
offers a "plausible justification" for doing so). Often a
defendant does not want an in-court lineup, fearing that if a
"fairly staged" one "would still likely result" in his
identification, the lineup "would strengthen" the eyewitness's
"credibility" and "undermine" the defense's "misidentification
argument to the jury." Brien, 59 F.3d at 279. But again — and at
the risk of repeating ourselves — we detect no settled caselaw
allowing a prosecutor to force a defendant into an in-court lineup
to get an identification.
-23-
Concluding, as we do, that the dissent's undue-suggestion
critique does not add up to plain error (or, indeed, to error of
any kind), we turn to Correa's other claims.17
(2)
"Hearsay" Statements
Correa does not contest the sufficiency of the evidence
against him. Rather he next complains that much of the
government's case depended on hearsay statements not admissible
under the coconspirator exception, which exempts from the hearsay
rule comments made by a coconspirator during and in furtherance of
the conspiracy. See Fed. R. Evid. 801(d)(2)(E). This is how that
exception works. If a defendant contests the admissibility of an
alleged coconspirator statement, the judge may conditionally admit
the evidence and put off ruling until the close of all the
evidence. See, e.g., United States v. Ciresi, 697 F.3d 19, 25-26
(1st Cir. 2012) (discussing United States v. Petrozziello, 548 F.2d
17
Although we need not reach the issue, we are also
unpersuaded by the dissent's claim that Vega's identification of
Correa was too unreliable for the jury to consider. To highlight
just one problem with the dissent's claim: The dissent worries
that Vega's previous encounters with "El Don" were indirect, brief,
and occurred five years before the in-court identification. But
these are usually matters for the jury to sort out. See Jones, 689
F.3d at 18 (stressing that "it is only in extraordinary cases that
identification evidence should be withheld from the jury")
(internal quotation marks omitted); see also Perry, 132 S. Ct. at
727 (indicating that a jury should consider — among other things —
how much time passed "between exposure to and identification of the
defendant, whether the witness was under stress when he first
encountered the suspect, how much time the witness had to observe
the suspect, how far the witness was from the suspect, . . . and
the race of the suspect and the witness").
-24-
20 (1st Cir. 1977)). Prosecutors must then prove by a
preponderance of the evidence (apart from the statements
themselves) the elements of admissibility under the exception —
that the defendant and the speaker were coconspirators and that the
speaker made the statement during the course and in furtherance of
the conspiracy. See id. at 25; see also United States v. Piper,
298 F.3d 47, 52 (1st Cir. 2002). A judge's ruling on this score is
called a "Petrozziello ruling." Ciresi, 697 F.3d at 25. If
prosecutors fall short, the defendant can ask the judge to declare
a mistrial or strike the statements. See, e.g., United States v.
Mangual-Garcia, 505 F.3d 1, 8 (1st Cir. 2007).
Correa gripes about three statements admitted through
Vega's testimony: Vega's statement pinning the "El Don" nickname
on him, Santana's statement tagging "El Don" as the person in
charge of getting drug bags on planes, and Soler's statement saying
a bag handed to "El Don" had $90,000. In making this pitch, he
does not deny being nicknamed "El Don."18 Nor does he question
Santana's and Soler's membership in the conspiracy. He just thinks
that the prosecutors did not show it more likely than not (the
usual preponderance standard) that he was the "El Don" who
coconspired with the speakers or that the challenged comments
furthered the conspiracy.
18
FYI: Correa's résumé (admitted as an exhibit) listed his
email addresses as (emphases ours) "eldon0789@hotmail.com" and
"eldon0789@gmail.com."
-25-
We typically give abuse-of-discretion review to the
question of whether a statement is in fact hearsay. See, e.g.,
United States v. Brown, 669 F.3d 10, 22-24 (1st Cir. 2012); United
States v. Colón-Díaz, 521 F.3d 29, 33 (1st Cir. 2008). And we
usually review objections to a judge's Petrozziello ruling for
clear error, see, e.g., Ciresi, 697 F.3d at 26, knowing a party
cannot show clear error if there are competing views of the
evidence, see, e.g., United States v. Dowdell, 595 F.3d 50, 73 (1st
Cir. 2010).
Right off the bat, the parties fight over whether Correa
did enough below to preserve the nickname argument for review (they
agree he preserved the other arguments, however). We can sidestep
that issue, though, because it is easier to decide the argument on
the merits. See United States v. Murphy, 193 F.3d 1, 5 (1st Cir.
1999) (taking a similar tack in a similar situation).
Correa helpfully concedes one thing — that Vega was not
at all clear on how he learned about the "El Don" moniker that he
stuck Correa with. That is a very big deal because we need not
worry about the coconspirator exception unless the contested
comment constituted hearsay. See id. at 6. Correa speculates that
Vega "could only have learned" about the "El Don" sobriquet
"through hearsay" — i.e., that Vega must have heard about the
nickname from someone other than Correa. But the evidence does not
foreclose the possibility that Vega did indeed hear about the "El
-26-
Don" handle from Correa. True, Vega did testify that he did not
chat with Correa the time he saw him at Santana's house. Yet that
hardly means that Vega did not catch Correa introduce himself to
another there as "El Don." And because no one can possibly know —
based on what is before us — whether Vega got the nickname info via
hearsay, Correa has not shown an abuse of discretion on this
threshold issue.
Moving to the Petrozziello issue, Correa has not shown
clear error with the judge's handling of the other statements —
Santana's comment that "El Don" was the point man for getting the
drug bags on planes, and Soler's remark that a bag for "El Don" had
$90,000. For one thing, the record — even leaving aside the
hearsay statements themselves — demonstrates that Correa more
probably than not was a coconspirator of the speakers. Recall
Vega's testimony about seeing Correa with conspiracy-chief Santana
at Santana's home. They had suitcases that resembled the ones Vega
smuggled into New York. The bags — which Vega helped load into the
trunk of the car — weighed about the same too. And after putting
the bags into the auto, Vega heard Correa tell Santana that the car
was his wife's and that this could land him in hot water with her
if she knew what he was up to. The evidence of Correa's conspiracy
membership might not be overwhelming, but it suffices on a
-27-
preponderance standard.19 Or at least the judge did not clearly err
in so concluding. Also, the "in furtherance" requirement can be
satisfied (among other ways) by statements identifying other
conspirators, explaining how the conspiracy works, or updating
members on the conspiracy's doings. See, e.g., Ciresi, 697 F.3d at
29, 30; United States v. Díaz, 670 F.3d 332, 348-49 (1st Cir.
2012). And using the preponderance test, the contested statements
fit the bill. Or so the judge was entitled to conclude without
clearly erring.20
Two sets of issues down, two to go.
(3)
Evidence Concerning the Suitcase
Seized on October 4
Correa's penultimate argument — made and lost below,
meaning abuse-of-discretion review is called for — is simple
enough. Prosecutors, he reminds us, presented evidence about the
suitcase seized on October 4 to help establish the existence of the
Santana-led conspiracy. Yet, he insists, other evidence already in
the record showed a Santana-run conspiracy, and no evidence tied
this suitcase to that conspiracy. Yes, he stresses, Báez did
19
This is, after all, one of the lowest standards of proof on
the books. See United States v. Volungus, 730 F.3d 40, 46 (1st
Cir. 2013).
20
Clear error means the judge's action was "wrong with the
force of a 5 week old, unrefrigerated, dead fish . . . ." Toye v.
O'Donnell (In re O'Donnell), 728 F.3d 41, 46 (1st Cir. 2013)
(quoting S Indus., Inc. v. Centra 2000, Inc., 249 F.3d 625, 627
(7th Cir. 2001)).
-28-
testify that he himself helped sneak drug bags onto planes for both
Santana and Bencosme. But, he notes, Báez made it crystal clear
that he and others did the October 4 caper only for Bencosme, and
there is zero evidence (to quote his brief) that Bencosme "ever
worked for or with" Santana. So, his argument continues, evidence
of the October 4 seizure was wholly irrelevant, unfairly
prejudicial, and potentially confusing, given that it could have
distracted the jury's attention from a material issue — namely, the
existence (or not) of a Santana-headed conspiracy. See Fed. R.
Evid. 403. His theory has a certain bite. But we need not decide
whether he is right because any error — if error there was — was
harmless and so not reversible.
Errors in admitting evidence are "harmless" unless the
evidence "likely affected" the trial's outcome. See United States
v. Landrón-Class, 696 F.3d 62, 71 (1st Cir. 2012) (parenthetically
quoting United States v. Dunbar, 553 F.3d 48, 59 (1st Cir. 2009));
see also United States v. Adams, 375 F.3d 108, 113 (1st Cir. 2004).
And as for whether a Santana-captained conspiracy was a real thing
— the raison d'être for the suitcase evidence's presentation,
Correa says — plenty of evidence showed that it was. Just remember
all the testimony about how conspirators stashed drug bags aboard
chosen planes in San Juan bound for New York, then dropped the
drugs off in New York for sale, and then shipped cash back to San
Juan, with Santana — a/k/a "El Boss" — pulling the strings.
-29-
Compared with all this, the suitcase evidence is a drop in the
bucket. So we can say with "fair assurance" that the disputed
evidence did not sway the jury's verdict, meaning Correa's second-
to-last argument — like his others — goes nowhere.21 See Landrón-
Class, 696 F.3d at 71.
(4)
Cumulative Error
That leaves us with Correa's protest that, even if his
claimed errors do not justify reversal individually, they do when
taken cumulatively. But because we have espied only one assumed
error that is harmless at that, the cumulative-error doctrine
cannot help him. See United States v. DeSimone, 699 F.3d 113, 128
(1st Cir. 2012).
Enough said about Correa's appeal. Now on to Shepard's.
SHEPARD'S APPEAL
Shepard attacks the sufficiency of the evidence to
convict her and the reasonableness of her sentence. Though
skillfully presented, her arguments do not persuade.
(1)
Adequacy of the Evidence
Sufficiency challenges rarely succeed, see United States
v. Moran, 984 F.2d 1299, 1300 (1st Cir. 1993), and this one is no
21
Correa sometimes calls the October 4 suitcase evidence
"cumulative." But cumulative evidence is usually dismissed as
harmless, see, e.g., United States v. Savarese, 686 F.3d 1, 14 (1st
Cir. 2012), and again we have no reason to question the evidence's
harmlessness here.
-30-
exception. The gist of Shepard's argument — below and on appeal —
is that prosecutors failed to prove beyond a reasonable doubt that
she knew the bags she grabbed at the New York airport had drugs in
them, as opposed to some other form of contraband. And so, the
theory goes, her conspiracy and substantive-possession convictions
cannot stand.22 The judge disagreed. We of course assess her claim
de novo, viewing the evidence — including all fair inferences — in
the light most agreeable to the verdict and asking whether a
sensible jury could have convicted beyond a reasonable doubt. See,
e.g., United States v. Seng Tan, 674 F.3d 103, 107 (1st Cir. 2012).
Critically too, even if she has a plausible innocent explanation
for her actions, we must affirm if — after viewing the record from
the prosecution's vantage point — there was adequate evidence of
her guilt. See, e.g., United States v. George, 761 F.3d 42, 48
(1st Cir. 2014).
22
The conspiracy charge required prosecutors to prove a
knowing and intentional agreement between her and another to
violate the drug laws, see United States v. Ramos-Mejía, 721 F.3d
12, 14 (1st Cir. 2013), while the substantive charge required them
to prove her knowing possession of drugs with intent to distribute,
see United States v. García-Carrasquillo, 483 F.3d 124, 130 (1st
Cir. 2007). We oversimplify slightly, but you get the picture.
Because the two charges required the government to prove that she
acted knowingly, we examine her knowledge as a whole, rather than
breaking it down for each count. One other thing. "'[K]nowledge'
can be established by showing that a defendant was 'wilfully blind'
to facts patently before [her]." United States v. Rivera-
Rodriguez, 318 F.3d 268, 271 (1st Cir. 2003). The judge did not
give a willful-blindness instruction, however. Consequently we
consider only whether the government proved her actual knowledge.
-31-
What sinks Shepard's sufficiency claim is Vega's
testimony that he personally knew that she was a member of
Santana's drug-trafficking enterprise.23 From that evidence a
clear-eyed jury could readily infer that members like Shepard know
that drug smuggling is a drug enterprise's lifeblood and that
handling drugs is what members do. See United States v. Ortiz, 966
F.2d 707, 712 (1st Cir. 1992) (explaining that "jurors are neither
required to divorce themselves from their common sense nor to
abandon the dictates of mature experience"). And a wide-awake jury
could then go on to infer that Shepard knew from the suspicious
happenings surrounding her New York trip — her getting $3,000
simply for jetting there on someone else's dime, grabbing a couple
of suitcases from the airport's luggage carousel, and passing them
off to others almost immediately, never to see the bags again, etc.
— that the suitcases contained drugs. See id.
Wait a minute, says Shepard, holes remain in the record
— for example, there is no direct evidence that (1) she ever saw
even a speck of drugs in Puerto Rico or in New York, that (2) she
and Vega were anything more than mere acquaintances (Vega's cell
phone had several conspirators' contact info, but not Shepard's),
23
Here are the money quotes from the prosecution's redirect
examination of Vega: "Mr. Vega-Torres," the prosecutor began,
"based on your own personal knowledge, we want you to tell the jury
who were the members of the Manuel Santana drug trafficking
organization at the time that you were involved." "Denise Shepard"
and El "Don," Vega replied, though he named other members too.
-32-
that (3) either Vega or anyone else ever so much as hinted that she
would be lugging drug bags to a waiting taxi, or that (4) she was
present when Vega and Martes rolled and packed the cash for the
trip back to Puerto Rico. Even assuming that these are plausible
theories of innocence, she gains nothing, "because the issue is not
whether a jury rationally could have acquitted but whether it
rationally could have found guilt beyond a reasonable doubt." Seng
Tan, 674 F.3d at 107. Granted, the government's case may not have
been "airtight" — most are not, we know. See Leftwich v. Maloney,
532 F.3d 20, 28 (1st Cir. 2008). But taking all the evidence —
direct and circumstantial — in the light most flattering to the
verdict, we think a levelheaded jury had enough to make a guilty-
knowledge inference required to convict. See also United States v.
Sawyer, 85 F.3d 713, 733 (1st Cir. 1996).
(2)
Reasonableness of the Sentence
That takes us to the dispute over Shepard's 128-month
prison term — a sentence 8 months above the 10-year statutory
mandatory minimum but 23 months below the bottom of the 151-188
month recommended guidelines range. She does not question the
correctness of either the mandatory minimum or the guidelines
range. But she does contest the procedural and substantive
reasonableness of her sentence, offering lots of reasons why she
should get a 120-month term after a sentencing do-over. We review
preserved arguments for abuse of discretion and unpreserved ones
-33-
for plain error. See, e.g., United States v. Tavares, 705 F.3d 4,
24 (1st Cir. 2013). Ultimately, though, none of her arguments
succeed.
(a)
Procedural Reasonableness
Shepard first accuses the judge of not considering every
sentencing factor listed in 18 U.S.C. § 3553(a).24 But after
listening to her lawyer argue for leniency (a plea that — among
other things — referenced her pre-arrest rehabilitative efforts and
stressed how a heavy sentence would hurt her family) and after
hearing her statement (an "allocution," in legal lingo), the judge
said that he had considered "all the factors." And his comment "is
entitled to some weight" — that is particularly true when a judge
issues a within-guidelines sentence, see United States v. Clogston,
24
There are seven factors. Factor one is "the nature and
circumstances of the offense and the history and characteristics of
the defendant." 18 U.S.C. § 3553(a)(1). Factor two is
the need for the sentence . . . (A) to reflect the
seriousness of the offense, to promote respect for the
law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the
defendant; and (D) to provide the defendant with needed
educational or vocational training, medical care, or
other correctional treatment in the most effective
manner."
Id. § 3553(a)(2). Factor three is "the kinds of sentences
available." Id. § 3553(a)(3). Factor four is the guidelines. Id.
§ 3553(a)(4). Factor five is "any pertinent policy statement . . .
issued by the Sentencing Commission." Id. § 3553(a)(5). Factor
six is "the need to avoid unwarranted sentence disparities." Id.
§ 3553(a)(6). And factor seven is "the need to provide restitution
to any victims." Id. § 3553(a)(7).
-34-
662 F.3d 588, 590 (1st Cir. 2011) (internal quotation marks
omitted), and here (don't forget) we have a below-guidelines
sentence. But the judge said much more. For example, he touched
on the seriousness of her crimes ("hundreds of kilograms of cocaine
were transported in this conspiracy" and "nothing" could have
happened without her and other couriers like her), talked about her
difficult family circumstances (she is a "widowed mother of five
children"), highlighted her lack of criminal record, alluded to
societal-protective concerns ("how many children are affected by
drugs . . .?"), stressed the need to avoid unwarranted disparities
between her sentence and Correa's (he had gotten 132 months). And
he concluded that a 128-month sentence — a term far lower than the
151-188 month guidelines range — served the purposes reflected in
§ 3553(a). We see nothing resembling an abuse of discretion here.
Trying a different tack, Shepard argues that the judge
put too much weight on one factor (eliminating unjustified
sentencing disparities) and too little weight on others (her
history and characteristics, as well as guidelines policy
statements dealing with downward departures for things like family
responsibilities).25 Over and over again we have said that judges
are not required to "give each factor equal billing," noting that
25
A quick word about sentencing disparities: sentencers can
consider disparities between codefendants, we have noted — even
though § 3553(a)(6) chiefly addresses disparities among defendants
nationwide. See, e.g., United States v. Ayala-Vazquez, 751 F.3d 1,
32 (1st Cir. 2014).
-35-
because sentencing outcomes "turn mostly on 'case-specific and
defendant-specific'" nuances, "'[t]he relative weight of each
factor will vary with the idiosyncratic circumstances of each
case'" — and thus judges can tweak "'the calculus accordingly.'"
United States v. Denson, 689 F.3d 21, 28-29 (1st Cir. 2012)
(quoting United States v. Dixon, 449 F.3d 194, 205 (1st Cir.
2006)). The judge did what the caselaw permits. So again we find
no abuse of discretion.
Shepard also contends — for the first time on appeal,
though — that the judge did not adequately explain his reasoning
for her sentence. But what we have already written shows she is
wrong. A judge must say enough for us to meaningfully review the
sentence's reasonableness. See United States v. Fernández-Cabrera,
625 F.3d 48, 53 (1st Cir. 2010) (adding that a judge's explanation
need not be "precise to the point of pedantry"). And the judge's
explanation was up to snuff — which is another way of saying that
he committed no error in this respect, much less plain error.
(b)
Substantive Reasonableness
Not only is Shepard's sentence procedurally reasonable —
it is substantively reasonable too, which is to say not too harsh
under the "totality of the circumstances." Gall v. United States,
552 U.S. 38, 51 (2007). Her arguments otherwise — that her family
circumstances and pre-arrest rehabilitation call for a 120-month
term instead of a 128-month stretch, and that the judge placed too
-36-
much emphasis on minimizing unjust sentencing disparities — are
essentially a rebranding of her failed procedural-unreasonableness
theories. When all is said and done, a claim like hers is a tough
sell — more so when the sentence comes within a correctly-
calculated guidelines range, see Clogston, 662 F.3d at 592-93, and
here (as we have said, hopefully without trying the reader's
patience) we have a below-guidelines term! For every case there is
a range of reasonable punishment. See, e.g., United States v.
Walker, 665 F.3d 212, 234 (1st Cir. 2011). And because Shepard's
sentence (backed by the judge's plausible explanation) does not
fall outside "the expansive universe" of acceptable outcomes, we
spot no abuse of discretion — which leads straight to affirmance.
See United States v. King, 741 F.3d 305, 308 (1st Cir. 2014).
FINAL WORDS
Our work over, we affirm Correa's and Shepard's
convictions, and we affirm Shepard's sentence too.
-Concurring and Dissenting Opinion Follows-
-37-
BARRON, Circuit Judge, concurring in part and dissenting
in part. I fully join the majority's treatment of Denise Shepard-
Fraser's challenges to the sufficiency of the evidence and the
reasonableness of her sentence. I cannot join, however, the
majority's treatment of Jorge Correa-Osorio's challenge to the in-
court identification. In my view, that challenge has merit, and,
accordingly, I would reverse the judgment of conviction on the
ground that the District Court plainly erred in allowing the jury
to weigh that evidence.
I.
Eyewitness testimony is undeniably powerful. That
testimony is all the more powerful when the eyewitness identifies
the defendant right in front of the jury. Ordinarily, we let
juries weigh such testimony, just as they may weigh any other
admissible evidence. But in certain circumstances, concerns about
the reliability of an in-court identification -- with all the
persuasive force that comes from the witness identifying "that man"
as the person who committed the crime -- require more than faith in
the jury's capacity to evaluate what is reliable and what is not.
See, e.g., Kampshoff v. Smith, 698 F.2d 581, 585 (2d Cir. 1983)
("[D]oubts over the strength of the evidence of a defendant's guilt
may be resolved on the basis of the eyewitness' seeming certainty
when he points to the defendant and exclaims with conviction that
veils all doubt, '[T]hat's the man!'" (second alteration in
-38-
original) (quoting United States v. Wade, 388 U.S. 218, 235-36
(1967))).
One such circumstance arises when the government elicits
the identification in court after having used suggestive out-of-
court means to prompt the witness to make an earlier
identification. See Simmons v. United States, 390 U.S. 377, 382
(1968); see also Manson v. Brathwaite, 432 U.S. 98 (1977). The
classic out-of-court, government-designed, suggestive means are a
stacked lineup, see Foster v. California, 394 U.S. 440, 442-43
(1969), a highly suggestive photo array, see Simmons, 390 U.S. at
382, or, perhaps even worse, a show-up -- in which the government
brings the suspect before the witness in a one-to-one
confrontation, see Stovall v. Denno, 388 U.S. 293, 295 (1967).
When the government uses such out-of-court prompts
unnecessarily, due process bars the jury from weighing the in-court
identification unless it survives review under the so-called
Biggers factors. See Neil v. Biggers, 409 U.S. 188, 199-200
(1972); see also United States v. Maguire, 918 F.2d 254, 264-65
(1st Cir. 1990) ("The Supreme Court has declared generally the same
test for the admissibility of an in-court identification subsequent
to a suggestive out-of-court identification as it has employed for
admission of an allegedly suggestive pretrial out-of-court
identification."). Courts use those factors to decide whether the
in-court identification arises from the witness's prior encounters
-39-
with the person identified rather than from the influence of the
out-of-court suggestive prompt the government has used. See United
States v. Castro-Caicedo, 775 F.3d 93, 97 (1st Cir. 2014). And
when those factors indicate a substantial risk that the suggestive
prompt did corrupt the in-court identification -- say because the
witness encountered the person identified years before and never
since, and then only in conditions not likely to make the memory
stick with any accuracy -- then the jury may not consider the in-
court identification. Biggers, 409 U.S. at 198.
Correa does not argue to us that an out-of-court
suggestive prompt preceded this in-court identification. He
instead argues that what happened in the courtroom was alone so
suggestive as to necessitate review under Biggers. And I conclude
that, on these facts, Correa is right.
In reaching this conclusion, I recognize courtroom
identifications are a traditional feature of criminal trials. But
tradition should not distract from what to me seems obvious and
what I do not understand the majority to deny. A prosecutor who
orchestrates an in-court identification does at least risk exposing
the jury to a very misleading form of unusually powerful and
prejudicial testimony. For that reason, judges must be on the
lookout for the case in which that risk is realized -- even if it
is realized through means other than the government's prior use of
egregious out-of-court suggestive prompts.
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Here, we confront government-selected, in-court means for
prompting that, though subtle, were plenty suggestive -- and
unnecessarily so. So much so, in my view, that even on plain error
review, an inspection of the identification's reliability under
Biggers is required. See United States v. De León-Quiñones, 588
F.3d 748, 753 (1st Cir. 2009) ("To establish plain error, a
defendant 'must show an error that was plain, (i.e., obvious and
clear under current law), prejudicial (i.e., affected the outcome
of the district court proceedings), and seriously impaired the
fairness, integrity, or public reputation of the judicial
proceedings.'" (quoting United States v. Griffin, 524 F.3d 71, 76
(1st Cir. 2008))). And, after undertaking that inspection, I
further believe that due process demands a greater degree of
assurance that Correa was "that man" than this identification can
possibly supply. For that reason, I cannot agree that this in-
court identification -- on which the government's case almost
entirely rests -- may be the cause of Correa's long-term loss of
liberty.26
26
Correa received a prison sentence of eleven years. That
term, I might add, is greater than the sentences received by all
other members of the conspiracy, save for the leader, who received
a sentence of 135 months -- only three months longer than Correa's.
Correa and his co-defendant in this trial, Denise Shepard-Fraser,
were the only alleged conspirators who went to trial. All others
listed in the indictment, with the exception of one individual
against whom charges were dismissed, entered into plea agreements.
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II.
To begin, I must first explain why Perry v. New
Hampshire, 132 S. Ct. 716 (2012), does not shield from Biggers
review any in-court identification that is untainted by a prior
suggestive out-of-court prompt -- the seemingly categorical
position the Eleventh Circuit takes. See United States v. Whatley,
719 F.3d 1206, 1216 (11th Cir. 2013). But the explanation is not
hard to give. Simply put, Perry did not involve an in-court
identification at all. Perry thus cannot set the standard for how
we should treat one.
Perry concerned only whether a prior out-of-court
identification should have been subjected to review under the
Biggers factors. And Perry concluded that due process did not
require such review in that case because the government did not
orchestrate the out-of-court identification. See Perry, 132 S. Ct.
at 725-27. Rather, as Perry explained, the witness had made a
spontaneous out-of-court identification of the suspect while the
suspect stood next to a police officer in a parking lot. Id. at
721-22. The Court noted that defense counsel -- in briefing and in
argument -- explicitly conceded that the government "did not
arrange the suggestive circumstances surrounding [the]
identification," id. at 725, and that defense counsel did "not
allege any manipulation or intentional orchestration by the
police," id. (citing Tr. of Oral Arg. 5). There was, as the New
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Hampshire Supreme Court found, "a complete absence of improper
state action." New Hampshire v. Perry, No. 2009-0590, 2010 WL
9105720, at *1 (N.H. Nov. 18, 2010) (quoting New Hampshire v.
Addison, 8 A.3d 118, 125 (N.H. 2010)). Thus, notwithstanding that
the circumstances of the identification may have been suggestive,
the Court concluded that the deterrence rationale that underlies
the whole Biggers line had no application. Perry, 132 S. Ct. at
726.
In my view, therefore, Perry is no per se bar to finding
plain error here. Perry is instead best read to affirm what the
Court had said before about when the Biggers test must be applied.
Due process requires the Biggers review for reliability "when law
enforcement officers use an identification procedure that is both
suggestive and unnecessary." Id. at 724. For it is only when the
government is responsible for the suggestiveness that due process
requires an inquiry into the reliability of the identification.
III.
With Perry out of the way, the issue reduces to the
following. When, if ever, should an in-court identification be
subject to Biggers review by virtue of the suggestive attributes of
what happened in the courtroom itself? Substantial precedent shows
that a government-orchestrated, in-court identification may, in
some circumstances, be so suggestive as to trigger Biggers review,
even absent a prior, out-of-court suggestive prompt. See, e.g.,
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United States v. Greene, 704 F.3d 298, 307-08 (4th Cir. 2013);
United States v. Rogers, 126 F.3d 655, 657-58 (5th Cir. 1997)
("[I]t is obviously suggestive to ask a witness to identify a
perpetrator in the courtroom when it is clear who is the
defendant."); United States v. Hill, 967 F.2d 226, 232 (6th Cir.
1992); United States v. Rundell, 858 F.2d 425, 426 (8th Cir. 1988);
see also United States v. Beeler, 62 F. Supp. 2d 136, 140-45 (D.
Me. 1999) (suppressing, in advance of trial, in-court
identification because it would be impermissibly suggestive and
unreliable). And the government does not argue otherwise.
The majority contends, however, that such review is
required only when the in-court identification involves special
features of concern. The majority then notes that, here, the
prosecutor's in-court questions or comments did not expressly draw
the witness's attention to the defendant or directly suggest the
hoped-for result. See Greene, 704 F.3d at 307-08. Nor was the
defendant in this case of a different race or gender from all other
persons in the courtroom or at counsel table. See United States v.
Archibald, 734 F.2d 938, 941 (2d Cir. 1984). But, as I will
explain, the government still orchestrated this identification to
occur in circumstances that clearly were unnecessarily suggestive
-- at least when the circumstances are considered in their
totality.
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As to orchestration, the challenged in-court
identification did not just happen. Instead, the prosecutor
brought it about through a cooperating witness, José Vega-Torres,
who had been prepped and promised (according to his own testimony)
that his cooperation would protect his wife from prosecution. And
Vega was asked to provide testimony that was -- the government
concedes -- the whole of the case against Correa.
As to suggestiveness, the prosecutor asked Vega to
identify Correa only on Vega's second day of testifying, after the
lunch break. Thus, the prosecutor asked Vega to make the
identification only after Vega had spent a day and a half on the
stand, with Correa -- the only male defendant -- seated before him
at counsel table. And during Vega's day-plus time on the stand,
defense counsel rose to object at numerous points. By the time of
the identification, then, the object of the prosecution would have
been obvious.
The majority points out that the government did not put
Correa at counsel table. He took that seat on his own, as it was
his right to do. But the government still chose to seek the
identification from Vega fully aware that the defendant was so
positioned -- and thus fully aware that Vega would be asked to
identify Correa at a moment when he was at that table and after
Vega had observed him there at substantial length. Indeed, it is
fair to say the longest look that Vega -- by his own account --
-45-
ever had of Correa was during the time the government had asked
Vega to appear on the stand prior to asking him to make the
identification. Cf. United States v. Montgomery, 150 F.3d 983, 992
(9th Cir. 1998) ("permitting [the witness] to view [the defendant]
in the courtroom the day before the witness was scheduled to
testify" found to be a "suggestive procedure[]").
In these circumstances, I do not believe Correa is
overstating things in contending that the government's presentation
of the identification was "the functional equivalent of the one
person show-up, a classically suggestive method of identification
in which an eyewitness is confronted with only one option to
cho[o]se from." See Greene, 704 F.3d at 307-08 (4th Cir. 2013);
Hill, 967 F.2d at 232; Beeler, 62 F. Supp. 2d at 144-45;
Commonwealth v. Crayton, 21 N.E.3d 157, 166 (Mass. 2014) ("Where,
as here, a prosecutor asks a witness at trial whether he or she can
identify the perpetrator of the crime in the court room, and the
defendant is sitting at counsel's table, the in-court
identification is comparable in its suggestiveness to a showup
identification."). And, for that reason, I believe it clear that
the identification's reliability must be tested under the Biggers
factors.
After all, the government cannot show that these
suggestive means were somehow "necessary." See Perry, 132 S. Ct.
at 724 (finding "[c]rucial" to the Court's allowance of a
-46-
suggestive procedure in Stovall that it was a "necessity");
Stovall, 388 U.S. at 302 (finding a suggestive encounter necessary
because "[n]o one knew how long [the hospitalized witness] might
live" and thus "the police followed the only feasible procedure");
United States ex rel. Kirby v. Sturges, 510 F.2d 397, 403-04 (7th
Cir. 1975) (Stevens, J.) (concluding, despite there being "no
evidence of bad faith or excessive zeal to obtain a conviction,"
that a showup was "unnecessarily suggestive" because it was "not
justified by any exigent circumstances, or even by any minimal
showing of inconvenience"). True, as a general matter, the
prosecution is entitled to present its case in the order it thinks
best. But that standard feature of the way that we organize
criminal trials does not mean it was necessary for the government
to elicit the identification of Correa in the highly suggestive way
that it chose.
The government could have relied on an identification by
Vega that he made out of court through a non-suggestive means. In
fact, the government introduced photo arrays showing that Vega had
made out-of-court identifications of other alleged conspirators.
Yet the government chose not to pursue that same approach at trial
in Correa's case. And, even if the government wished to proceed
with an in-court identification, the government acknowledged at
oral argument that there were mitigating measures that could have
been taken in court but were not. See Beeler, 62 F. Supp. 2d at
-47-
144-45 (noting "that a number of courts have reasoned that the
preferred remedy for a suggestive in-court identification is not,
necessarily, the suppression of the identification but an in-court
lineup or some other protective measure to ensure the fairness of
the identification and cross-examination of the eyewitness"); see
also Kirby, 510 F.2d at 405-06 (describing "unanimity among
scholars" that "evidence of, or derived from, a showup
identification should be inadmissible unless the prosecutor can
justify his failure to use a more reliable identification
procedure").
I recognize that, in one respect, the situation is
different when, unlike here, an in-court identification is made
only after a prior, suggestive out-of-court identification. In
that type of case, the jurors do not have the opportunity to
witness the complained of suggestive circumstance themselves.
Here, by contrast, the jurors did, as they obviously watched what
happened in court. But, that does not show that an in-court
identification of this sort must be left to the jury to weigh. For
while in theory the jurors were well-positioned to evaluate the
suggestiveness of what they saw, in fact the jurors were exposed to
a seemingly certain identification made in a very suggestive
setting. In other words, the fact that the jury witnessed this
particular identification does not solve the problem. It
potentially is the problem. See Kampshoff, 698 F.2d at 585 ("There
-48-
can be no reasonable doubt that inaccurate eyewitness testimony may
be one of the most prejudicial features of a criminal trial.
Juries, naturally desirous to punish a vicious crime, may well be
unschooled in the effects that the subtle compound of suggestion,
anxiety, and forgetfulness in the face of the need to recall often
has on witnesses." (footnote omitted)).
In light of the "obvious[] suggestive[ness]" of the
circumstances in which the government chose to elicit the
identification, I conclude -- as the Fifth Circuit did more than a
decade ago in considering an unobjected-to, in-court identification
-- that even on plain error review, the Biggers test applies. See
Rogers, 126 F.3d at 658. In that case, the Fifth Circuit
confronted circumstances not unlike those at issue here and
undertook such reliability review because the witness had been
asked to make the identification "when it [was] clear who [was] the
defendant." Id. Rogers explained that the witness initially
provided testimony without making any identification but was then
called back to the stand the next day to identify the defendant,
the only black man at counsel table, as the culprit.27 Id. at 657-
27
The prosecutor identified "something odd" in the witness's
demeanor during her initial testimony and afterwards had the FBI
case agent approach her. Rogers, 126 F.3d at 657. The witness
told the agent during that conversation that she recognized the
defendant as the culprit and the government then asked -- and was
granted permission -- to recall her to the stand. Id. And while
the defendant's counsel objected to the witness being recalled,
counsel did not object to her identification after she took the
stand. Id. at 657-58.
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58 & n.1. And while the Fifth Circuit noted that the concern about
suggestiveness was "heightened" in that case because the witness
was of a different race from the defendant, id. at 658, here that
same concern is heightened by the duration of the witness's pre-
identification testimony and the gender of the defendant relative
to the other defendant at counsel table.
In both cases, therefore, the key fact is the ultimate
one that the Biggers line suggests to me should matter: each time,
it was obvious who the defendant was when the prosecution asked the
witness to make the in-court identification. So although I grant
that there is no case finding plain error on facts exactly like
these, it seems to me that the relevant inquiry into suggestiveness
that Biggers requires yields an answer no less obvious in Correa's
case than the Fifth Circuit found in Rogers. And given that "the
'plainness' of [an] error can depend on well-settled legal
principles as much as well-settled legal precedents," United States
v. Brown, 352 F.3d 654, 664 (2d Cir. 2003) (emphasis omitted), I do
not believe counsel's failure to object at trial should shield this
in-court identification from the scrutiny that Biggers plainly
requires in comparably suggestive circumstances.
IV.
In consequence of the unnecessarily suggestive means that
the government used, I believe we must apply the Biggers factors to
test whether Vega's identification was corrupted by the
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suggestiveness of the setting. See 409 U.S. at 199-200.28 And it
is plain to me that, after doing so, we should have no confidence
that Vega's identification rested on his recollection of Correa's
appearance from prior encounters -- to the extent they qualified as
"encounters" -- rather than from the suggestive circumstances in
which the prosecutor asked Vega to make his choice.
Vega testified to viewing Correa, known to him in the
conspiracy as "El Don," on only three occasions, each of which
occurred long ago. The only physical interaction was brief, at
most lasting a matter of minutes. And the encounters between the
two men could be described, at best, as indirect: putting luggage
in a car, a sighting through a car window, and finally, Vega's
glimpse of "El Don" handling baggage on the tarmac while Vega
waited in the airport from what must have been a substantial
distance. The witness never purported to have had a personal
relationship with the defendant. Nor did Vega offer any previous
description that matched Correa's.
28
The factors to consider in evaluating whether the
identification is reliable despite the unnecessary suggestiveness
of the identification procedure include "the opportunity of the
witness to view the criminal at the time of the crime, the witness'
degree of attention, the accuracy of the witness' prior description
of the criminal, the level of certainty demonstrated by the witness
at the confrontation, and the length of time between the crime and
the confrontation." Biggers, 409 U.S. at 199-200. Of course, as
the majority notes, courts need not apply these factors to test the
reliability of an identification not orchestrated by the government
to occur in an unnecessarily suggestive way. See Maj. Op. 24 n.17.
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Furthermore, Vega claimed to have interacted with Correa
only in 2006, while Vega's in-court identification of Correa
occurred five years later, in 2011. Biggers suggested, however,
that a far shorter, seven-month gap between sighting and
identification counted against the identification's reliability.
Id. at 201. And while we have sometimes permitted lengthy time
gaps, we have not been so forgiving when the encounters were as
fleeting and indirect as these. See, e.g., United States v.
Flores-Rivera, 56 F.3d 319, 331 (1st Cir. 1995) (excusing seven-
year time gap when "other reliability criteria were sufficiently
persuasive").
Vega did not appear to hesitate in identifying Correa
from the stand. But certainty on the part of the witness does not
reveal much. See United States v. Jones, 689 F.3d 12, 18 (1st Cir.
2012) ("[L]ack of confidence is certainly a reliable warning sign,
while the presence of confidence is probably closer to a neutral
factor."). Such apparent certainty may result from the suggestive
circumstances, and certainty after suggestive prompting cannot show
reliability. See, e.g., Raheem v. Kelly, 257 F.3d 122, 139 (2d
Cir. 2001) (finding it "difficult to view [a witness's] certainty
as an indicator of reliability independent of the suggestive
lineup").
Not surprisingly, therefore, the government does not
argue that the Biggers factors support the identification's
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reliability. This identification, which should have triggered the
Biggers test, clearly cannot survive it.
V.
That leaves the issue of prejudice. See United States v.
Delgado-Marrero, 744 F.3d 167, 184 (1st Cir. 2014) (describing the
"infrequent case[] in which reversal is warranted" under the plain
error standard of review); see also Rogers, 126 F.3d at 658-60
(finding error in the admission of an obviously suggestive and
unreliable in-court identification, but holding error harmless in
light of overwhelming evidence of guilt). But here, the prejudice
is clear.
The government conceded that Vega's testimony provided
the only direct evidence that linked Correa to this conspiracy.
And a review of the record also reveals many -- in some cases,
inexplicable -- weaknesses in the government's case. These
weaknesses include: the inability of the testifying investigative
agent to explain how and why Correa was identified as a member of
the conspiracy; the evidence suggesting Correa worked for a
different baggage handling company than any of the other co-
conspirators tasked with the same alleged role in the conspiracy;
the testimony suggesting Vega made out-of-court identifications of
many of the co-conspirators without apparently making an out-of-
court identification of Correa; another testifying co-conspirator's
non-recognition of Correa; and the failure of the government to
-53-
call any co-conspirators -- despite having entered into plea
agreements with them -- who had dealt personally with Correa.
There is some corroborating evidence of Correa's
involvement in the conspiracy: a resume listing his email address
as including the words "El Don" and his wife's ownership of the
same car Vega testified that "El Don" had at Vega's one interaction
with him. But that evidence itself traces back only to Vega's
testimony. Thus, the other evidence against Correa gives no
assurance that, even absent the identification by Vega, the jury
would have convicted. See, e.g., United States v. Casas, 356 F.3d
104, 123-24 (1st Cir. 2004) (vacating conviction of defendant
Cunningham when -- apart from improper testimony -- only evidence
of involvement with conspiracy was his identification by three co-
conspirators with whom he had few contacts).
This case, then, is like those that have given courts the
most pause about the due process implications of admitting in-court
identifications. The problematic identification here was essential
to the government's case. See Raheem, 257 F.3d at 142 ("The
identification testimony of [the witnesses] clearly bore on an
essential issue, the identity of the shooter. And that testimony
was crucial to the prosecution's case, for the State presented no
evidence other than the testimony of [the witnesses] to tie [the
defendant] to the events."); Kampshoff, 698 F.2d at 588 ("[A]ll
told, absent the identification testimony, the evidence against
-54-
Kampshoff is simply not overwhelming."); cf. United States v.
Williams, 436 F.2d 1166, 1168 (9th Cir. 1970) ("[W]here the
question of guilt or innocence hangs entirely on the reliability
and accuracy of an in-court identification, the identification
procedure should be as lacking in inherent suggestiveness as
possible.").
Still, to succeed on plain error review, the defendant
must make one more showing. He must demonstrate that the error
"seriously impaired the fairness, integrity, or public reputation
of the judicial proceedings." De León-Quiñones, 588 F.3d at 753
(quoting Griffin, 524 F.3d at 76). But that additional requirement
poses no obstacle for Correa. When the government introduces an
unnecessarily suggestive in-court identification on which nearly
the whole of the prosecution depends, it seems to me clear that
this last part of the plain error test is met.
VI.
I recognize the concern about opening the door to other
successful attacks on in-court identifications. But not every in-
court identification is similarly staged, with the cooperating
witness prepped to testify, brought to the stand, and then prompted
to give an identification of the one male defendant at counsel
table and then only after having provided a day and a half of
testimony. Not every in-court identification rests on minimal
contacts that occurred long ago and thus plainly lacks sufficient
-55-
indicia of reliability to survive the Biggers test. Not every
prosecution rests so heavily on an in-court identification this
shaky. And fewer still are the prosecutions that are so dependent
on in-court identifications that share these concerning attributes.
I thus do not think it too much to require the government to make
the case against Correa on evidence less likely to mislead the jury
in this needless way. And, in my view, the Due Process Clause
requires that same conclusion.
I respectfully dissent.
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