Filed: May 13, 2015
Latest Update: Mar. 02, 2020
Summary: 2003) (noting, that a defendants Brady claim could be barred if he knew of, [potentially exculpatory evidence] at the time of his trial and, failed to pursue the lead).United States v. Lugo Guerrero, 524 F.3d 5, 14 (1st Cir.defense counsel was the one who elicited this testimony.district court.
United States Court of Appeals
For the First Circuit
Nos. 13-1593
13-1601
UNITED STATES OF AMERICA,
Appellee,
v.
JUNIOR H. DE LA CRUZ-FELICIANO,
SANDRI RIJO,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Aida M. Delgado-Colón, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Ripple,* Circuit Judges.
David J. Wenc, on brief, for appellant Junior H. De La
Cruz-Feliciano.
Felicia H. Ellsworth, with whom Eric F. Fletcher, Howard M.
Shapiro, and Wilmer Cutler Pickering Hale and Dorr LLP were on
brief, for appellant Sandri Rijo.
Héctor E. Ramírez-Carbo, Assistant United States Attorney,
with whom Rosa Emilia Rodríguez–Vélez, United States Attorney,
Nelson Pérez–Sosa, Assistant United States Attorney, Chief,
*
Of the Seventh Circuit, sitting by designation.
Appellate Division, and John A. Mathews II, Assistant United
States Attorney, were on brief, for appellee.
___________________
May 13, 2015
___________________
RIPPLE, Circuit Judge. Junior H. De La Cruz-Feliciano
(“De La Cruz”) and Sandri Rijo were charged with, and convicted
of, conspiring to possess with intent to distribute five
kilograms of cocaine and aiding and abetting others to do the
same. They now appeal their convictions, alleging various
procedural and evidentiary errors. For the reasons set forth in
this opinion, we affirm the judgments of the district court.
I
BACKGROUND
This case involves a conspiracy to smuggle over 900
kilograms of cocaine into Santa Isabel, Puerto Rico. Eduardo
Ubiera and Juan Baltazar orchestrated the operation. They
recruited Francisco “Sandy” Navarro-Reyes (“Navarro”) and Gary
Brito-González (“Brito”) to transport the cocaine, via a
motorboat, from a “mother ship” at sea to Puerto Rico. The
operation, however, did not run smoothly. While at sea, Navarro
and Brito ran out of fuel and were unable to make it back to
shore. At that point, according to government witnesses, Mr. De
La Cruz was recruited to take another craft out to rendezvous
with and refuel the stranded motorboat.
Mr. De La Cruz successfully delivered the fuel to the
stranded motorboat. While still at sea, however, his own craft
developed mechanical problems. Stranded at sea, Mr. De La Cruz
and another individual aboard the vessel used a satellite phone
- 3 -
to call for help. According to Freddy Altagracia-Medina
(“Altagracia”), a codefendant, Mr. De La Cruz had requested the
satellite phone before departing in order to communicate with
the stranded motorboat. The United States Coast Guard found
Mr. De La Cruz’s vessel adrift approximately sixty miles from
shore and rescued its crew. Coast Guard agents questioned the
men about their satellite phone. According to Agent Christopher
David Xirau, the men claimed to have tossed the phone overboard
because it had become wet.
Meanwhile, traveling in their refueled motorboat,
Navarro and Brito reached the shore with the drugs on January
26, 2012, three days after the planned delivery date. Awaiting
their arrival were several individuals recruited to help unload
the motorboat. Mr. Rijo was among this group. According to
government witnesses, he originally planned to serve only as a
lookout; however, due to the motorboat’s late arrival, he
instead ended up helping to unload the cocaine from the
motorboat into a Nissan Armada for transport to San Juan.
Following a tip from a confidential informant, law
enforcement anticipated the January 26 delivery and were
surveilling the area throughout the night. They observed
several individuals unloading the drugs from the motorboat into
a vehicle, but were unable to visually identify any of those
involved in the operation. Two other vehicles were present at
- 4 -
the scene. Officers stopped the motorboat and three vehicles as
they departed the beach. Ubiera and two other individuals were
stopped in the Nissan Armada. Officers found over 900 kilograms
of cocaine and three firearms in the vehicle. Navarro, Brito,
and two other individuals were stopped in a second vehicle.
Baltazar, Mr. Rijo, and one other person were stopped in a third
vehicle. Three individuals were stopped in the motorboat. All
thirteen men were arrested immediately. Officers arrested
Mr. De La Cruz six days later.
On February 1, 2012, a grand jury returned an
indictment, charging Mr. Rijo, Mr. De La Cruz, and their twelve
codefendants with conspiring to possess with intent to
distribute five kilograms of cocaine, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A)(ii), and 846, and aiding and abetting
the same, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii)
and 18 U.S.C. § 2.1 Everyone except Mr. Rijo and Mr. De La Cruz
accepted plea agreements. After a trial, the jury found both
2
Mr. Rijo and Mr. De La Cruz guilty as to all charges. After
3
sentencing, the defendants timely appealed.
1 The indictment also charged Ubiera and two other defendants
with possession of a firearm in furtherance of a drug
trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A).
2 The district court’s jurisdiction was premised on 18 U.S.C.
§ 3231.
3 Our jurisdiction is secure under 28 U.S.C. § 1291.
- 5 -
II
DISCUSSION
A. Mr. De La Cruz
On appeal, Mr. De La Cruz raises only one argument.
It concerns the district court’s questioning of Agent Xirau of
the United States Coast Guard. At trial, the agent testified
about the rescue of Mr. De La Cruz aboard the vessel that had
gone adrift. Agent Xirau stated that he had asked
Mr. De La Cruz and the other individual aboard the vessel about
the satellite phone that they had used to call the Coast Guard.
During the agent’s testimony, on the fourth day of a six-day
trial, the following exchange took place:
THE GOVERNMENT: I will ask you to clarify,
when you refer to one of the
two individuals on the boat,
what specifically as to each
individual they said, if
anything?
AGENT XIRAU: Roger that.
THE GOVERNMENT: I was asking you about
Junior De la Cruz, if upon
you questioning him did he
answer anything to you?
AGENT XIRAU: That was the only question
that I remember him
specifically giving me an
answer.
THE GOVERNMENT: What about the other
individual?
- 6 -
AGENT XIRAU: I don’t remember his name.
When I say they, I could
mean either one or the
other, I don’t remember who
at time who was the one that
gave answers to the several
questions we asked.
THE COURT: But were questions generally
answered?
AGENT XIRAU: Yes, ma’am.
THE COURT: Any of them express a
disagreement with what the
other was saying at the
time?
AGENT XIRAU: No, ma’am.[4]
Defense counsel objected to the district court’s
questioning. In particular, counsel asserted that the questions
conveyed that the district court was commenting on Mr. De La
Cruz’s silence when speaking with Coast Guard officials. The
district court disagreed, stating that the witness “is not
saying that [Mr. De La Cruz] did not answer, he says he does not
remember who answered what.”5 Nevertheless, despite its
disagreement with defense counsel’s characterization of the
exchange, the district court gave a cautionary instruction,
stating that the jury was “not to draw any inferences from the
4 R.401 at 69–70. We have added the names of the speakers for
the convenience of the reader.
5 Id. at 71.
- 7 -
questions that [the court] posed.”6 “My only intent here,” the
district court explained, “was to assist in clarifying the
situation. But once again I instruct you that there is no
intent and . . . no inference [should be] drawn from any type of
question I have posed.”7
Following the district court’s cautionary instruction,
Agent Xirau then testified that Mr. De La Cruz and the other
individual aboard the vessel had offered a strange explanation
for no longer possessing the satellite phone that they had used
to call for help. According to the agent, the men had told him
that they threw the satellite phone overboard because it had
become wet. The agent described this explanation as “odd.”8
Mr. De La Cruz now contends that the district court’s
questioning of Agent Xirau evinces judicial bias in violation of
his right to due process of law. “When addressing allegations
of judicial bias, we consider whether the comments were improper
and, if so, whether the complaining party can show serious
prejudice.” United States v. Ayala-Vazquez, 751 F.3d 1, 24 (1st
Cir. 2014) (internal quotation marks omitted). We assess
statements in light of the record as a whole, not in isolation.
Id.
6
Id. at 72.
7 Id.
8
Id. at 74–75.
- 8 -
In assessing this claim of judicial bias, our starting
point is the basic principle that “there is nothing inherently
improper about a judge posing questions at trial.” Id. Indeed,
as we have previously observed, a court “has the prerogative,
and at times the duty, of eliciting facts [it] deems necessary
to the clear presentation of issues.” United States v. Rivera-
Rodríguez,
761 F.3d 105, 111 (1st Cir. 2014) (quoting United
States v. Paz Uribe,
891 F.2d 396, 400 (1st Cir. 1989)); see
also Fed. R. Evid. 614(b) (“The court may examine a witness
regardless of who calls the witness.”). Such questioning is
permissible “so long as [the court] preserves an attitude of
impartiality and guards against giving the jury an impression
that the court believes the defendant is guilty.” Rivera-
Rodríguez, 761 F.3d at 111 (quoting Paz
Uribe, 891 F.2d at 400–
01). Notably, a question is not improper simply because it
clarifies evidence to the disadvantage of the defendant. See
United States v. Montas,
41 F.3d 775, 781 (1st Cir. 1994).
“[T]he rule concerning judicial interrogation is designed to
prevent judges from conveying prejudicial messages to the jury.
It is not concerned with the damaging truth that the questions
might uncover.” United States v. Martin,
189 F.3d 547, 554 (7th
Cir. 1999).
Even if a comment is improper, however, a defendant
also must show that the judicial intervention resulted in
- 9 -
“serious prejudice.” Rivera-Rodríguez, 761 F.3d at 112. As we
recently have observed, this burden is comparable to
demonstrating prejudice under plain error review. See
id. In
other words, “improper judicial intervention ‘seriously
prejudice[s]’ a defendant’s case when we find that there is a
reasonable probability that, but for the error, the verdict
would have been different.”
Id. The burden of establishing
serious prejudice is more difficult where, as here, a court
follows its comments with an appropriate cautionary instruction.
See
Ayala-Vazquez, 751 F.3d at 26 (noting that “within wide
margins, the potential for prejudice stemming from improper
testimony or comments can be satisfactorily dispelled by
appropriate curative instructions” (quoting United States v.
Pagán-Ferrer,
736 F.3d 573, 582 (1st Cir. 2013))).
Here, Agent Xirau testified that he could not remember
who, between Mr. De La Cruz and the other individual aboard the
vessel, had answered his questions regarding the satellite
phone. The district court then asked whether either of the men
“express[ed] a disagreement with what the other was saying at
9
the time.” This question, Mr. De La Cruz contends, “conveyed to
the jury that the defendant” was “in tacit agreement with any
answers to the question about the satellite phone,” thus
9 Id. at 70.
- 10 -
“creat[ing] ‘cover’ for the government to attribute the
satellite phone to” him.10
We perceive no error in the district court’s remarks.
The court’s inquiry was neither tinged with partiality nor
suggestive of the court’s stance on Mr. De La Cruz’s guilt.
Rather, this inquiry merely clarified an ambiguity in Agent
Xirau’s testimony. That the resulting clarification was adverse
to Mr. De La Cruz’s case is not, without more, indicative of
judicial bias. See Martin, 189 F.3d at 554. In any event, the
court’s remarks, which came on the fourth day of a six-day trial
and were followed by an appropriate cautionary instruction, did
not seriously prejudice Mr. De La Cruz’s case. See Ayala-
Vazquez, 751 F.3d at 25–26.
B. Mr. Rijo
Mr. Rijo raises three arguments on appeal. First, he
contends that the Government violated its duty under Brady v.
Maryland, 373 U.S. 83 (1963), by failing to disclose errors in
an investigative report prior to his counsel’s opening
statement. Second, he submits that the district court erred in
admitting evidence of his prior bad acts. Finally, he contends
that the Government’s closing argument inaccurately described
10 Appellant’s Br. 28.
- 11 -
his role in the offense, thus resulting in prejudice that
warrants a new trial.11 We address these issues in turn.
1.
Mr. Rijo first submits that the Government committed a
Brady violation by failing to disclose errors in a DEA Report of
Investigation--known as a “DEA 6”--prior to defense counsel’s
opening statement. The DEA 6 at issue was prepared by Agent
William Rosario and summarized statements made by Altagracia.
The DEA 6 contained several erroneous statements due to the
agent’s confusion of Sandri Rijo, the defendant, with
Sandy Navarro. In particular, the report erroneously stated
that Mr. Rijo, rather than Navarro, was on the motorboat with
Brito and had helped to transport the drugs from the “mother
ship” to shore. Agent Rosario also created handwritten notes
before preparing the DEA 6. Those notes, however, were
partially in Spanish and contained at least one instance where
the agent again confused Mr. Rijo with Navarro.
The Government turned over the DEA 6 and the agent’s
handwritten notes to defense counsel during pretrial discovery.
The Government also disclosed its plans to call Altagracia as a
11Originally, Mr. Rijo also appealed his sentence on procedural
and substantive grounds. Following oral argument, however,
Mr. Rijo, through his attorney, filed a signed letter asking to
withdraw his sentencing challenge. We grant Mr. Rijo’s request
and thus do not consider this issue further.
- 12 -
witness to testify that Mr. Rijo was on the shore during the
delivery and helped to unload the drugs.
Before opening statements, defense counsel informed
the district court and the Government of his intent to attack
Altagracia’s credibility, in part by claiming that Altagracia
had offered three different accounts of the relevant events.
One of those accounts was premised on the erroneous statements
in Agent Rosario’s DEA 6. Defense counsel never explicitly told
the Government of his intent to rely on those statements.
During opening statements, Mr. Rijo’s counsel
presented a defense premised in large part on impeaching the
Government’s three main witnesses, one of whom was Altagracia.
Defense counsel presented his attack on Altagracia’s credibility
as follows:
[Altagracia] has given the government at
least three different versions as to what
happened. The first time he gave a version
to the government when he was originally
caught, he said that he had been fishing
since January 23. Now, that same witness
did not mention anyone else at that time, he
said I was fishing since January 23, three
days before they were caught. Then, in
April when he is already negotiating with
the government and trying to get them to
give him a good deal, he says that on
January 22, I took Sandri Rijo to Fajardo,
my client, to Fajardo to get on a boat to
meet the mother boat, or the boat bringing
in the drugs closer to Puerto Rico, to go
there. And he also says that he did not see
Sandri Rijo again until dawn on January 26
- 13 -
when he came in piloting the boat that
brought the drugs in.
Now, the third version that he
gave, you just heard from the prosecutor.
Notably when he gave the version of April he
did not place Sandri Rijo anywhere else
between the 22 to the 26, because Sandri
Rijo was out on the boat, the mother boat.
What do we say here, as I said you already
heard the government give us a preview as to
that.[12]
After opening statements, the Government informed
defense counsel about the mistakes in its DEA 6. Defense
counsel in turn moved for a mistrial, claiming that his
13
“client[’s] right to a fair trial ha[d] been compromised.” In
particular, defense counsel expressed concern that the
Government’s late disclosure undermined the defense strategy
that he had presented to the jury during opening statements.
The district court denied Mr. Rijo’s motion. It
concluded that defense counsel’s ability to present Mr. Rijo’s
defense before the jury had not been impaired because he still
could attack Altagracia’s credibility at trial and could call
Agent Rosario to testify about the DEA 6. Further, the court
held that Agent Rosario’s handwritten notes made clear that “the
person identified was Sandy N[a]varro,” and that the “inaccuracy
in the DEA 6 . . . could be gathered by reviewing the [agent’s]
12 R.385 at 12–13.
13 R.394 at 5.
- 14 -
rough notes.”14 Defense counsel did not call Agent Rosario as a
witness at trial.
Mr. Rijo now contends that the Government violated its
duty under Brady by failing to disclose, in a timely manner, the
errors in its DEA 6. Specifically, Mr. Rijo submits that those
errors are exculpatory because they provide evidence of a sloppy
police investigation. Although Mr. Rijo’s motion for a mistrial
did not explicitly allege a Brady violation, both parties assume
on appeal that the motion was based on Brady. Indeed, the
Government has not argued that the claim was forfeited or
waived. For this reason, we assume that a Brady claim was
properly raised before the district court, see United States v.
Gonyer, 761 F.3d 157, 166 n.4 (1st Cir. 2014), and we review the
district court’s determination for abuse of discretion, see
United States v. Celestin,
612 F.3d 14, 22 (1st Cir. 2010).
Brady requires that the Government disclose “evidence
favorable to an accused” that is “material either to guilt or to
punishment.” 373 U.S. at 87. In order to prevail on a Brady
claim, a defendant must show that: (1) evidence was suppressed;
(2) the evidence was favorable to the accused; and (3) the
evidence was material to either guilt or punishment. See
Strickler v. Greene,
527 U.S. 263, 281–82 (1999). With regard
14
Id. at 12, 16.
- 15 -
to the first prong, we do not consider favorable evidence
suppressed “if the defendant either knew, or should have
known[,] of the essential facts permitting him to take advantage
of any exculpatory evidence.” Ellsworth v. Warden, 333 F.3d 1,
6 (1st Cir. 2003) (quoting United States v. LeRoy,
687 F.2d 610,
618 (2d Cir. 1982)). As for the second and third prongs,
“[e]vidence is ‘favorable to the accused’ if it is either
exculpatory or impeaching in nature and ‘material’ if there is a
reasonable probability that, had it been disclosed, the result
of the proceeding would have been different.” United States v.
Prochilo,
629 F.3d 264, 268 (1st Cir. 2011).
Brady also applies in cases where the Government
delays disclosure of relevant evidence. In such cases, the
defendant further must show “that the delay prevented defense
counsel from using the disclosed material effectively in
preparing and presenting the defendant’s case.” United States
v. Van Anh, 523 F.3d 43, 51 (1st Cir. 2008). To carry this
burden, “[t]he defendant must at a minimum make a ‘prima facie’
showing of a plausible strategic option which the delay
foreclosed.”
Id.
The parties’ dispute largely centers on the timing of
the Government’s disclosure. Ruling for the Government, the
district court determined that Agent Rosario’s handwritten
notes, disclosed along with the DEA 6, adequately informed
- 16 -
Mr. Rijo of the errors in the DEA 6. Further, the court held
that, even if the Government’s disclosure was late, Mr. Rijo was
not prejudiced by the delay because he still could call Agent
Rosario as a witness to testify about the errors at trial. We
are troubled by the district court’s first rationale, but do
agree that the second has merit.
As we noted earlier, evidence is not suppressed within
the meaning of Brady “if the defendant either knew, or should
have known[,] of the essential facts permitting him to take
advantage of” the evidence. Ellsworth, 333 F.3d at 6 (emphasis
added) (quoting
LeRoy, 687 F.2d at 618). “The ‘should have
known’ standard refers to trial preparation,” and will generally
impute to the defendant knowledge which he otherwise would have
possessed from a diligent review of the evidence in his control.
See
id. at 7; see also United States v. Pandozzi,
878 F.2d 1526,
1529 (1st Cir. 1989) (“Brady does not require the government to
turn over information which, with any reasonable diligence, the
defendant can obtain himself.” (alterations omitted) (quoting
Jarrell v. Balkcom,
735 F.2d 1242, 1258 (11th Cir. 1984))).
Here, the district court faulted Mr. Rijo for failing to notice
incongruities between Agent Rosario’s rough notes and the DEA 6,
which, according to the district court, would have (or at least
should have) alerted him to the errors in the DEA 6. Although
we agree that a defendant ordinarily should notice errors in an
- 17 -
investigative report when such incongruities are clearly
present,15 we have significant reservations, in this instance,
about the district court’s conclusion. Agent Rosario’s notes
are of poor quality. The agent’s rough handwriting, combined
with the fact that the notes were disclosed in the form of a
darkened photocopy, rendered the material that Mr. Rijo received
almost entirely illegible. Moreover, the agent’s notes were
partially in Spanish and contained at least one instance in
which the agent further confused Mr. Rijo with Navarro.
We agree with the district court, however, that the
Government’s late disclosure of this evidence did not prevent
defense counsel from effectively using it at trial. The
Government disclosed these errors after opening statements on
the first day of trial, Monday, September 10, 2012. The
Government rested its case at the end of the day on Friday,
September 14. The defense rested on Tuesday, September 18,
without calling a single witness. Neither party called Agent
Rosario to testify even though the district court, in denying
Mr. Rijo’s motion for a mistrial, explicitly had advised
Mr. Rijo that he could do so. Defense counsel thus had seven
15Cf. Ellsworth v. Warden, 333 F.3d 1, 7 (1st Cir. 2003) (noting
that a defendant’s Brady claim could be barred if he “knew of
[potentially exculpatory evidence] at the time of his trial and
failed to pursue the lead”).
- 18 -
days--three of which were unencumbered by trial--to use this
evidence in preparing and presenting Mr. Rijo’s case.
Mr. Rijo has offered no reason why this interval was
not enough time for defense counsel to make effective use of the
disclosed material, nor could he. See United States v. Peters,
732 F.2d 1004, 1009 (1st Cir. 1984) (holding that the
Government’s belated disclosure of impeachment evidence, which
was “short, uncomplicated, and fairly predictable,” did not
violate Brady where the defendants had “two full days, including
one nontrial day, in which to prepare to cross-examine” the
witness). To the extent that this evidence was exculpatory, its
relevance to Mr. Rijo’s case was straightforward: it undermined
the thoroughness and good faith of the Government’s
investigation. This defense is neither complicated nor
inconsistent with the defense strategy pursued by Mr. Rijo.
Seven days afforded ample time for its preparation. See
id. On
these facts, we cannot conclude that the Government’s belated
disclosure of this evidence prevented defense counsel from using
it in preparing and presenting Mr. Rijo’s case.
2.
Mr. Rijo next submits that the district court erred,
under Federal Rules of Evidence 403 and 404(b), in admitting (1)
testimony by Altagracia that Mr. Rijo had threatened him while
in prison and (2) testimony by Agent Jesus Marrero that drug-
- 19 -
trafficking organizations would look for “experienced people” to
handle a shipment of the size involved in this case. We review
for abuse of discretion a district court’s decision regarding
the admissibility of evidence under Rules 403 and 404(b).
United States v. Lugo Guerrero, 524 F.3d 5, 14 (1st Cir. 2008).
Rule 404(b) provides that “[e]vidence of a crime,
wrong, or other act is not admissible to prove a person’s
character in order to show that on a particular occasion the
person acted in accordance with the character.” Fed. R. Evid.
404(b)(1). However, this rule permits the admission of prior
acts evidence having “special” relevance--that is, evidence
relevant for a non-propensity-based purpose, “such as proving
motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident.” Id.
404(b)(2).16 In assessing whether prior acts evidence is
admissible for such a purpose, we apply a two-step test. United
States v. Landry,
631 F.3d 597, 601–02 (1st Cir. 2011). First,
we ask whether the proffered evidence truly possesses “special”
relevance.
Id. at 602. If it does, we then apply Rule 403,
admitting the evidence so long as its probative value is not
substantially outweighed by the risk of unfair prejudice. Id.
16 As we have noted on previous occasions, Rule 404(b)(2)’s
listing of permissible purposes is illustrative rather than
exhaustive. United States v. Landry,
631 F.3d 597, 602 (1st
Cir. 2011).
- 20 -
We start with the admission of Altagracia’s testimony.
At trial, Mr. Rijo’s defense counsel cross-examined Altagracia
about his limited relationship with Mr. Rijo. In particular,
defense counsel asked when, if ever, he had spoken with
Mr. Rijo. After first describing how they had spoken “in the
field” during their criminal activities, Altagracia then
responded that Mr. Rijo had threatened him while in prison:
When I was at the 2B unit, Mr. Sandri Rijo
yelled at me through the--in other words I
was playing basketball out in the yard and
he yelled at me and said that if I turned
around with the authorities he was going to
have my family kidnaped [sic], that he was
going to also have me beat up and that he
had already given orders to have my family
kidnaped [sic].[17]
Defense counsel objected to this unexpected testimony, but the
district court overruled his objection, noting that defense
counsel “had plenty of time to stop th[e] witness.”18
The Government contends that the district court did
not err in admitting evidence of Mr. Rijo’s threat, given that
defense counsel was the one who elicited this testimony. We
agree. As we have acknowledged previously, a defendant cannot
complain about the admission of testimony directly responsive to
a question posed by defense counsel. See United States v.
Rivera-Rivera, 477 F.3d 17, 20 (1st Cir. 2007) (“Rivera cannot
17 R.401 at 21.
18
Id. at 22.
- 21 -
persuasively complain about the admission of this evidence,
given that it was the defense--not the government--which
elicited it in the course of its cross-examination. . . .”);
United States v. Lizardo, 445 F.3d 73, 84 (1st Cir. 2006)
(noting that where a defendant elicited challenged testimony on
cross-examination, he could not “contest his own invited error”
on appeal); United States v. Cresta,
825 F.2d 538, 552 (1st Cir.
1987) (“It is apparent from the record that defense counsel did
elicit the response, although perhaps inadvertently, and cannot
now complain of the alleged error.”). Here, defense counsel
asked Altagracia whether he ever had spoken with Mr. Rijo. In
response, Altagracia stated that Mr. Rijo verbally had
threatened him while in prison. Because this answer was
directly responsive to defense counsel’s open-ended question,
Mr. Rijo cannot now complain of its admission on appeal.
In any event, Altagracia’s testimony would have been
admissible even if elicited by the Government. As the
Government correctly notes, evidence that Mr. Rijo threatened a
government witness is probative of his “consciousness of guilt.”
United States v. Burnett, 579 F.3d 129, 133 (1st Cir. 2009).
“Such threats may imply that the defendant has something to hide
or a desire to cover something up.” United States v. Rosa,
705
F.2d 1375, 1377 (1st Cir. 1983) (internal quotation marks
omitted). This use of prior acts evidence is entirely
- 22 -
permissible under Rule 404(b). See Burnett, 579 F.3d at 133.
Thus, because Mr. Rijo’s threat is probative in this regard,
Rule 404(b) does not require its exclusion.
Mr. Rijo’s Rule 403 challenge is equally unavailing.
In prior cases involving the application of Rule 403 to evidence
of a defendant’s threats against a government witness, we have
considered a variety of factors, including “whether the jury
heard graphic details of how the threat would be carried out,
whether the threat was made as an emotional or impulsive
reaction, and how important the evidence about the threat was to
19
the Government’s case.” Id. at 134 (citations omitted). Here,
the district court certainly did not abuse its discretion in
admitting the evidence. Altagracia’s testimony did not involve
graphic or sensational details of the content of Mr. Rijo’s
threat. Further, as we noted earlier, this evidence is
probative of Mr. Rijo’s consciousness of guilt, which, given his
defense that he was essentially in the wrong place at the wrong
time, was highly relevant to the Government’s case. For these
reasons, we cannot conclude that the probative value of
Altagracia’s testimony was outweighed, much less substantially
so, by the risk of unfair prejudice.
19 This list of relevant factors is by no means exhaustive.
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Turning to Agent Marrero’s testimony, at trial the
agent offered testimony about cocaine sales in Puerto Rico and
the practices of drug smugglers. In particular, he testified
that a drug-trafficking organization would look for “experienced
people” to handle a shipment of the size involved in this case.20
Mr. Rijo contends that this testimony ran afoul of Rules 404(b)
and 403 by implying that he had prior experience in drug
trafficking. Because Mr. Rijo did not raise these objections
before the district court, our review is for plain error. See
United States v. Rodríguez-Adorno, 695 F.3d 32, 38 (1st Cir.
2012).
With respect to his Rule 404(b) objection, Mr. Rijo’s
argument fails at its first step. Rule 404(b) only applies to
“[e]vidence of a crime, wrong, or other act.” Fed. R. Evid.
404(b)(1). Agent Marrero’s testimony did not reveal a crime,
wrong, or other act committed by Mr. Rijo. Rather, he merely
described the way in which drug-trafficking organizations
generally operate. As such, his testimony does not fall within
the ambit of Rule 404(b).
In his Rule 403 objection, Mr. Rijo contends that
Agent Marrero’s testimony suggests that Mr. Rijo was an
experienced drug trafficker, thus giving the impression that he
20 R.405 at 147.
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had participated in such acts in the past and was likely to do
so in the future. This argument falls wide of the mark. The
agent’s testimony simply stated that drug dealers who undertake
sea-to-shore delivery operations realize the high risk of such
an undertaking. Consequently, they employ only individuals who
are committed to the success of the operation and who have the
experience necessary to bring the venture to a successful
conclusion. This testimony was both relevant and probative; it
rebutted Mr. Rijo’s claim that he was not a member of the
conspiracy but rather a mere tag-along or innocent bystander.
The importance of this evidence outweighed any possible unfair
prejudice that may have resulted from the implication that
experience in the drug trade necessarily indicates a prior
criminal history. The district court did not abuse its
discretion in admitting this testimony and certainly did not
commit plain error.
3.
Finally, Mr. Rijo contends that the Government’s
closing argument inaccurately described his role in the offense,
thus resulting in prejudice warranting a new trial. Mr. Rijo’s
argument is premised on the original transcript filed in this
case. That transcript shows four instances in which the
Government incorrectly referred to Sandy Navarro as either
“Sandi Rijo” or “Sandri Rijo” during its closing argument.
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These misstatements, assuming they occurred, portrayed Mr. Rijo
as considerably more involved in the conspiracy than the
evidence would otherwise show.
During the pendency of this appeal, the district
court, acting pursuant to Federal Rule of Appellate Procedure
10(e), granted a motion by the Government to supplement the
record on appeal with a revised transcript. This revised
transcript, which the court reporter had certified and filed
with the district court nearly nine months earlier, indicates
that the Government did not in fact confuse Navarro with
Mr. Rijo during its closing argument. The district court
granted the Government’s Rule 10(e) motion on the same day that
it was filed, without giving Mr. Rijo an opportunity to respond.
Following the district court’s order, Mr. Rijo filed a
supplemental brief in this court asking us to reject the revised
transcript. He also filed a motion for reconsideration in the
district court. In both filings, Mr. Rijo raised several
significant arguments attacking the reliability of the revised
transcript.
Federal Rule of Appellate Procedure 10(e) governs the
modification or correction of the record on appeal. In
particular, Rule 10(e)(1) provides that, “[i]f any difference
arises about whether the record truly discloses what occurred in
the district court, the difference must be submitted to and
- 26 -
settled by that court and the record conformed accordingly.”
Fed. R. App. P. 10(e)(1). A district court’s determination
under Rule 10(e)(1) “is conclusive absent a showing of
intentional falsification or plain unreasonableness.” Pagán-
Ferrer, 736 F.3d at 582 (quoting United States v. Serrano,
870
F.2d 1, 12 (1st Cir. 1989)).
Because Mr. Rijo was not afforded an opportunity to
respond to the Government’s Rule 10(e) motion, the district
court never heard or considered any of his arguments before
certifying the revised transcript as part of our record on
appeal. In order to remedy this deficiency, we stayed
Mr. Rijo’s appeal following oral argument and, while retaining
jurisdiction, remanded the case for the limited purpose of
obtaining a ruling from the district court on Mr. Rijo’s
objection. In particular, we ordered the district court to
address Mr. Rijo’s then-pending motion for reconsideration.
On remand, the district court ordered its court
reporter to submit a certified copy of her stenographer’s notes
from the Government’s closing argument as well as an affidavit
explaining how those notes support the revised transcript. The
court reporter did so, explaining in her affidavit that her
stenographer’s notes showed that the Government had not confused
Navarro with Mr. Rijo during its closing. Rather, as the court
reporter explained, she had simply mistyped “Rijo” instead of
- 27 -
“Navarro” when transcribing her notes several months after
the trial.
After receiving the court reporter’s notes and accompanying
affidavit, the district court held a hearing on Mr. Rijo’s motion
and, shortly thereafter, denied the motion in a written order. The
court based its decision on the court reporter’s filings, the
parties’ pleadings and exhibits, and the court’s “own recollection
and notes of [Mr. Rijo’s] criminal trial.”21 Based on this evidence,
the court concluded that it was “100 percent certain that the revised
22
transcript [was] correct.”
The district court’s order thoroughly and persuasively
addressed each of Mr. Rijo’s arguments. In light of the court’s
careful consideration of this issue, we cannot conclude that its
decision to certify the revised transcript as part of the record on
appeal was plainly unreasonable. See id. Accordingly, we accept the
revised transcript as part of our record, and thus conclude that the
Government did not confuse Sandy Navarro with Mr. Rijo during its
closing argument.
III
CONCLUSION
The judgments of the district court are affirmed.
AFFIRMED
21 R.635 at 9.
22 Id. at 15.
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