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.
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 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 the scene. Officers
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.
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:
Defense counsel objected to the district court's questioning. In particular, counsel asserted that the questions conveyed that
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."
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.
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 "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
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 the time."
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.
Mr. Rijo raises three arguments on appeal. First, he contends that the Government violated its duty under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (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 his role in the offense, thus resulting in prejudice that warrants a new trial.
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
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 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:
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 "client[`s] right to a fair trial ha[d] been compromised."
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] rough notes."
Mr. Rijo now contends that the Government violated its duty under Brady
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, 83 S.Ct. 1194. 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, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). With regard 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 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,
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 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.
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-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
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:
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."
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 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
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 the Government's case."
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.
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 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
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. 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 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 "Navarro"
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."
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.
The judgments of the district court are affirmed.