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United States v. Carela

United States Court of Appeals, First Circuit

November 4, 2015

UNITED STATES OF AMERICA, Appellee,
v.
VÍCTOR MANUEL CARELA, Defendant, Appellant

As Amended November 19, 2015.

Page 375

[Copyrighted Material Omitted]

Page 376

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Francisco A. Besosa, U.S. District Judge.

Patricia A. DeJuneas, with whom Sibbison & DeJuneas, was on brief, for appellant.

Susan Z. Jorgensen, 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 Torruella, Selya, and Lynch, Circuit Judges.

OPINION

Page 377

TORRUELLA, Circuit Judge.

This appeal arises out of Defendant-Appellant Ví ctor Manuel Carela's (" Carela" ) involvement in a drug smuggling operation. Carela was convicted on two counts: (1) conspiracy to possess with intent to distribute five kilograms or more of cocaine; and (2) possession with intent to distribute five kilograms or more of cocaine. Finding no reversible error, we affirm his conviction and sentence.

I. Background

On September 16, 2012, a multi-agency[1] investigation was initiated in regard to suspected drug trafficking in the coastal area along Yabucoa and Maunabo, Puerto Rico. At 4:00 a.m. in the morning of September 17, 2012, Border Patrol agents observed an unlit vessel approaching Maunabo. The law enforcement officers participating in this investigation requested helicopter assistance from the Puerto Rico Police Department, which was shortly dispatched. The helicopter spotted a thirty-three foot vessel and communicated its location to law enforcement officers on the ground.

Around this same time, officers led a tactical land approach in the area and discovered a red Ford Excursion surrounded by multiple gas tanks along with other supplies such as food and drink. Proceeding to the beach, officers discovered 918.7 kilograms of cocaine hidden within the nearby bushes.

Later that day, officers of the Municipal Police of Yabucoa (" Yabucoa officers" ) were told that a shipment of drugs had been intercepted along the Maunabo coastline. The Yabucoa officers were instructed to patrol the area in order to locate individuals that might be linked to the intercepted shipment. The Yabucoa officers encountered Carela hitchhiking in a section of the PR-901 road that was two miles from the sea. When the Yabucoa officers approached Carela in a marked police vehicle, he jumped over the railing on the side of the road and down a precipice.

A few minutes later, the Yabucoa officers encountered Carela a second time. This time, the Yabucoa officers stopped their vehicle and approached Carela on foot. The Yabucoa officers asked Carela,

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who was dressed in jet skiing shoes and wet clothing, what he was doing in the area. Carela responded that he was collecting metal.[2] The Yabucoa officers continued to speak with Carela, who appeared agitated, tired and pale, and invited him to drink some water in their car. While Carela was drinking water, the Yabucoa officers again asked him what he was doing in the area and Carela indicated that he had been on a boat. At this juncture, the Yabucoa officers arrested Carela and read him his rights. Carela had no identification or cell phone on his person and only a small amount of cash.

On the ride to the police station, Carela told the Yabucoa officers that he was supposed to be paid " $5,000 for the task, . . . but since it wasn't completed, he was not going to receive it." Later that day, Carela was interrogated by Agent Carlos Martí nez, a Homeland Security agent. Agent Martí nez testified that Carela appeared " excited," " happy," " pumped up," and " very cooperative" during his interrogation. Carela admitted to the agent that he was hired for this " drug smuggling venture [and] that his job was to refuel the vessel that was coming in with the narcotics." Carela further admitted that he assisted in the offloading of narcotics from the vessel.

Carela was indicted on: (1) conspiracy to possess with intent to distribute five kilograms or more of cocaine; and (2) possession with intent to distribute five kilograms or more of cocaine. 21 U.S.C. § § 841(a)(1), (b)(1)(A)(ii); 846. On April 22, 2013, Carela's first trial ended in a mistrial because the jury could not reach a unanimous verdict. Carela was tried a second time and convicted on both counts. On January 22, 2014, Carela was sentenced to 196 months of incarceration. This timely appeal followed.

II. Discussion

Carela raises a number of issues on appeal. Specifically, Carela argues that: (1) the district court erred when it admitted an unexecuted draft of a contract into evidence in violation of the Federal Rules of Evidence; (2) the district judge made several improper remarks that violated Carela's constitutional rights; (3) the district court improperly admitted testimony in Spanish in violation of the Jones Act, 48 U.S.C. § 864; (4) the Government engaged in prosecutorial misconduct; and (5) Carela's sentence was both procedurally and substantively unreasonable. We consider Carela's contentions below.

A. The Unexecuted Draft Contract

1. Background

During the course of the second trial, the Government sought to introduce an unsigned copy of a draft sales contract (the " draft contract" ) pursuant to which Edwin Lé on-Lé on (" Lé on" ) sold Carela the red Ford Excursion that law enforcement officers found on the beach on September 17, 2012. The Government also called Lé on to testify that Lé on and Carela had executed the draft contract. After hearing Lé on's testimony, the district court admitted the draft contract into evidence, over Carela's objections regarding the authenticity of the document, because Lé on did not keep a copy of the original and Lé on attested that he gave the original to Carela when the sale was executed.

Carela now argues that the draft contract was improperly admitted because it

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is proscribed hearsay and its admission requires a new trial.

Carela concedes that he did not object to the admission of the draft contract on hearsay grounds and that plain error review would normally apply. See United States v. Avilés-Colón,536 F.3d 1, 22 (1st Cir. 2008). Nonetheless, Carela argues that because he objected to the admissibility of the draft contract on the ground that it could not be authenticated, we should apply closer scrutiny. United States v. Jefferson,925 F.2d 1242, 1254 (10th Cir. 1991) (stating that closer scrutiny ...


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