FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. José Antonio Fusté, U.S.
F. Gormley, Stephen Super, and George F. Gormley, P.C., on
brief for appellant.
F. Klumper, Assistant United States Attorney, Senior
Appellate Counsel, Mariana E. Bauzá-Almonte, Assistant
United States Attorney, Chief, Appellate Division, and Rosa
Emilia Rodríguez-Vélez, United States Attorney,
on brief for appellee.
Howard, Chief Judge, Torruella and Thompson, Circuit Judges.
Eduardo Bueno-Beltrán appeals from the district
court's revocation of his supervised release and
imposition of a 24-month term of imprisonment. Because the
district court did not abuse its discretion when it admitted
hearsay evidence or err in finding that Bueno violated his
supervised release terms, we affirm.
2014, Bueno, a citizen of the Dominican Republic, pled guilty
to conspiracy to bring unauthorized aliens into the United
States without going through an authorized port of entry, in
violation of 8 U.S.C. § 1324(a)(1)(A)(i) and (v). He was
sentenced to one year of imprisonment and three years of
supervised release. Bueno was deported shortly thereafter.
During Bueno's period of supervised release, U.S. Coast
Guard personnel interdicted his boat off the coast of the
Dominican Republic. Bueno and two other Dominican citizens
were aboard the vessel, which was allegedly en route to
Puerto Rico. The officers attested that as they approached
the boat, the three men began throwing bales overboard, and
that when the officers boarded the boat, Bueno identified
himself as its captain. Nine bales recovered from the water
surrounding the boat field-tested positive for cocaine. Bueno
was subsequently arrested and indicted for importing and
conspiracy to import and possess, with intent to distribute,
controlled substances on board a vessel subject to United
States jurisdiction. See United States v.
Bueno-Beltrán, No. 15-cr-00189-GAG (D.P.R.
filed Mar. 18, 2015).
being notified of the new charges against Bueno and holding a
hearing, the district court revoked Bueno's supervised
release, finding four separate violations: 1) committing
another federal, state, or local crime; 2) possessing, using,
distributing or administering any controlled substance; 3)
associating with any person engaged in criminal activity; and
4) returning to the United States after
removal. The court imposed a 24-month term
of imprisonment, to be served consecutively with any sentence
that he would receive in the then-pending drug-importation
appeal, Bueno challenges the district court's admission
of hearsay evidence in the form of two Coast Guard
officers' statements detailing what transpired when they
approached and boarded Bueno's vessel. Bueno contends
that admitting these statements violated his Sixth Amendment
right to confront the witnesses against him. See
Crawford v. Washington, 541 U.S. 36,
at the outset that although "the Sixth Amendment forbids
the introduction of an out-of-court testimonial statement
unless the witness is unavailable and the defendant has
previously had an opportunity to cross-examine her . . .
[this prohibition] does not apply to supervised release
revocation proceedings." United States
v. Rondeau, 430 F.3d 44, 47 (1st Cir. 2005)
(internal citation omitted). We also note that the Federal
Rules of Evidence do not apply to revocation proceedings,
see Fed. R. Evid. 1101(d)(3), and revocation
proceedings "should be flexible enough to consider
evidence including letter affidavits, and other material that
would not be admissible in an adversary criminal trial."
See Rondeau, 430 F.3d at 47 (quoting
Morrissey v. Brewer, 408 U.S. 471,
489 (1972)). Nonetheless, criminal defendants still have
limited confrontation rights under Fed. R. Crim. P. 32.1
(b)(2)(C), which confers the right to "question any
adverse witness unless the court determines that the interest
of justice does not require the witness to appear."
Rondeau, 430 F.3d at 48 (quoting Fed. R. Crim. P.
32.1(b)(2)(C)). This requires the court to balance the
defendant's right to confront the witnesses with the
government's good cause for denying confrontation.
Id. A court should consider "the reliability of
the hearsay testimony and the government's reason for
declining to produce the declarant." Id. We
review a district court's decision to admit hearsay
evidence under this rule for abuse of discretion.
conclude that the court did conduct this balancing test and
acted within its discretion in finding that the hearsay
testimony was reliable. First, the court noted that the
details elucidated in the officers' statements were
"clearly, clearly, well defined." See United
States v. Marino, 833 F.3d 1, 6 (1st
Cir. 2016) (finding hearsay evidence reliable when it was
"packed with details"). Second, the statements were
corroborated by photographs depicting Bueno at the stern of
the boat, the bales recovered in the water around the boat,
and images of the field-test results. See Rondeau,
430 F.3d at 48 (identifying corroboration as another
indicator of reliability). As for cause, the fact that the
officers were based in Miami, Florida, while the revocation
hearing was held in San Juan, Puerto Rico, provided
sufficient reason for the court to excuse their absence.
See Marino, 833 F.3d at 5 ("'[C]oncern . .
. with the difficulty and expense of procuring witnesses from
perhaps thousands of miles away' is a paradigmatic
example of the type of situation that might call for the
admission of hearsay evidence at a revocation
proceeding." (quoting Gagnon v.
Scarpelli, 411 U.S. 778, 782 n.5 (1973))). Thus, the
district court did not abuse its discretion in admitting this
also challenges the court's reliance on the field tests
conducted on the bales, on the grounds that the tests were
not "sufficiently reliable" to indicate that the
substance was cocaine. In the main, the substance of his
argument is that the field tests "cannot be used as
prima facie evidence that [he] violated the terms of his
supervised release." We review this challenge -- which
was not raised below -- for plain error. See United
States v. Millan-Isaac, 749 F.3d 57,
66 (1st Cir. 2014).
no error, plain or otherwise, in the district court's
consideration of the field test results to support the
finding that Bueno violated the terms of his supervised
release. Such violations need only be proven by a
preponderance of the evidence. See 18 U.S.C. §
3583(e)(3); United States v.
Oquendo-Rivera, 586 F.3d 63, 66 (1st Cir. 2009). We
review the evidence in the light most favorable to the
government, remembering again that the Rules of Evidence do
not apply, and that the hearing is in front of a judge, not a
jury, while also noting that credibility is largely a matter
for the finder of fact. Oguendo-Rivera, 586 F.3d at
67. Here, the government presented evidence of two separate
field tests conducted on the bales, both indicating that the
substance was cocaine. The experienced judge observed that,
while such tests are not inherently admissible in a
full-blown criminal trial, they are "very, very
reliable." Indeed, several Courts of Appeals have held
that positive field test results, coupled with other
evidence, have been sufficient to prove that a substance is a
narcotic. See, e.g., United States
v. Thompson, 633 Fed. App'x 534, 537
(2d Cir. 2015); United States v.
Crane, 599 Fed. App'x 383, 384 (11th Cir. 2015);
United States v. Ching Tang Lo,
447 F.3d 1212, 1222-23 (9th Cir. 2006). We see no reason to
chart a different course in this type of proceeding. When
considered with the statements indicating that the boat's
occupants threw the bales overboard upon the Coast
Guard's approach, the district court's reliance, in
part, on these field tests was not an error.
foregoing reasons, the district court's revocation of
Bueno's supervised release and imposition ...