[Copyrighted Material Omitted]
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Daniel R. Domínguez, U.S. District Judge.
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.
Before Thompson, Lipez, and Barron, Circuit Judges. BARRON, Circuit Judge, concurring in part and dissenting in part.
THOMPSON, Circuit Judge.
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.
This case should seem familiar to any regular reader of the Federal Reporter, given that it concerns yet another major 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.
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.
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. The Philadelphia agents
looked for and found the trio's bags. After a 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).
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 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.
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. 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 -- 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 Bá ez, 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.
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 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."
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).
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. § § 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.
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.
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 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, 113 S.Ct. 1770, 123 L.Ed.2d 508 (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, 129 S.Ct. 1423, 173 L.Ed.2d 266 (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 " friendly" with her in 2006). And he identified her for the jury. 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, 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 ...