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Date: 11-10-2021
Case Style:
United States of America v. Noel de Leon-De la Rosa
United States of America v. Juan Batista Johnson-Debel
Case Number: 19-2046
Judge: David J. Barron
Court: United States Court of Appeals
For the First Circuit
On appeal from The UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
Plaintiff's Attorney: Mariana E. Bauzá-Almonte, Chief Appellate Division
Attorney for the Department of Justice, with whom Gregory B.
Conner, Assistant United States Attorney, and W. Stephen Muldrow,
United States Attorney
Defendant's Attorney:
Description:
Boston, MA - Criminal defense lawyer represented defendants with destruction of a controlled substance while on a vessel, and conspiracy to destroy a controlled substance while on a vessel chargeres.
Noel de Leon-De la Rosa ("De
Leon") and Juan Batista Johnson-Debel ("Johnson") challenge their
respective federal convictions in the District of Puerto Rico, as
well as the resulting sentences. Those convictions are for
destruction of a controlled substance while on a vessel, and
conspiracy to destroy a controlled substance while on a vessel.
Their prosecutions followed their indictment for these offenses
-- as well as for others for which they also were convicted but
that are not at issue here -- after U.S. Customs and Border Patrol
("CBP") agents in April 2017 interdicted off the coast of Puerto
Rico the small boat that De Leon and Johnson were on at the time.
We vacate the convictions that Johnson and De Leon each challenge,
though we vacate Johnson's for different reasons than those that
lead us to vacate De Leon's.
I.
A.
The following facts are not in dispute. On the night of
April 20, 2017, De Leon and Johnson were on a small boat about
thirty miles off the northern coast of Puerto Rico, traveling
southeast. The boat had no running lights.
At around 9:00 p.m., a CBP agent patrolling those waters
by airplane detected the boat on the plane's forward-looking
infrared camera. Suspecting drug smuggling, the agent called the
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Coast Guard and the CPB's marine interdiction unit was dispatched
to the boat's location.
The unit interdicted the boat just before midnight.
After boarding the vessel, members of the unit determined that
there was no contraband on board. CBP agents from the unit then
detained Johnson and De Leon and brought the two of them -- along
with the boat -- to the CBP facility in San Juan, Puerto Rico.
Once onshore at the CBP facility, at around 2:00 a.m.,
Johnson was interviewed by Francisco Calderón, an agent with U.S.
Homeland Security Investigations. Calderón read Johnson the
warnings required under Miranda v. Arizona, 384 U.S. 436 (1966),1
and Johnson then answered questions that Calderón put to him about
what had transpired aboard the boat. Johnson had also been
interviewed immediately after the interdiction by Agent Miguel
Borges.
The following morning, CBP Canine Enforcement Officer
Adriel Castillo brought Honzo, a drug-detection dog, to inspect
the boat. As Castillo walked the dog around the boat, Honzo
"alerted" to the "[p]ossible contamination of narcotics."
That same day, Maritime Law Enforcement Specialist
Matthew Tommie from the U.S. Coast Guard used a machine called an
1 Johnson filed a motion to suppress his statements below but
has not renewed any Miranda claims on appeal.
- 5 -
Ionscan 400B to test swabs taken from the vessel. The scan
revealed no trace residue of narcotics.
B.
Johnson and De Leon were indicted in the District of
Puerto Rico on May 18, 2017, in an eight-count indictment. The
indictment set forth the following charges against each defendant:
Count One[:] Possession with the intent to
distribute a controlled substance on board a vessel
subject to the jurisdiction of the United States,
aiding and abetting . . . in violation of [46
U.S.C. § 70503(a)(1) and 18 U.S.C. § 2].
Count Two[:] Conspiracy to possess with the intent
to distribute a controlled substance on board a
vessel subject to the jurisdiction of the United
States . . . in violation of [46 U.S.C.
§§ 70503(a)(1), 70506(b)].
Count Three[:] Possession with the intent to
distribute a controlled substance . . . in
violation of [21 U.S.C. § 841 and 18 U.S.C. § 2].
Count Four[:] Conspiracy to possess with the intent
to distribute a controlled substance . . . in
violation of [21 U.S.C. §§ 841, 846].
Count Five[:] Conspiracy to destroy property
subject to forfeiture under [s]ection 511(a) of the
Comprehensive Drug Abuse Prevention Act of 1970
. . . that is [a] . . . controlled substance [while
on a vessel]. . . in violation of [21 U.S.C.
§ 881(a) and 46 U.S.C. §§ 70503(a)(2), 70504(b)(1),
70506(d)].
Count Six[:] Destruction of property subject to
forfeiture under [s]ection 511(a) of the
Comprehensive Drug Abuse Prevention Act of 1970
. . . that is . . . [a] controlled substance [while
on a vessel] . . . in violation of [21 U.S.C.
§ 881(a), 46 U.S.C. §§ 70503(a)(2), 70504(b)(1),
70506(d), and 18 U.S.C. § 2].
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The indictment also set forth two other counts. Count
Seven charged Johnson alone with improper entry by a noncitizen in
violation of 8 U.S.C. § 1325(a)(1). Count Eight charged De Leon
alone with illegal reentry of a removed noncitizen in violation of
8 U.S.C. § 1326(a) and (b)(1).
Before trial, De Leon moved for severance. He did so on
the ground that Johnson's statements to Calderón and Borges
following the interdiction, if admitted in a joint trial with him,
would violate De Leon's rights under the Confrontation Clause of
the Sixth Amendment of the U.S. Constitution as interpreted in
Bruton v. United States, 391 U.S. 123 (1968). The District Court
denied the motion. De Leon moved for reconsideration, which the
District Court denied.
De Leon then renewed his request at trial to exclude
Johnson's statements to Agent Calderón based on Bruton. The
District Court once again denied the request, explaining that "so
long as [the confession] is sanitized then it's admissible." In
charging the jury, the District Court instructed that the
"statements . . . made by . . . Johnson [to Calderón]. . . can
only be considered as evidence against [Johnson]" and "cannot be
considered as evidence against [De Leon]."
At both the conclusion of the government's case and the
close of evidence, the defendants argued that judgments of
acquittal should be entered as to Counts One through Six for each
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defendant because the government had failed to prove its case
beyond a reasonable doubt. The District Court denied the motions.
The jury convicted Johnson and De Leon separately on
Counts Seven and Eight, which set forth their respective
immigration charges, and Counts Five and Six, which set forth their
respective charges for destruction of property subject to
forfeiture while aboard a vessel and conspiracy to commit the same
offense. The jury acquitted both defendants of Counts One through
Four, which set forth charges against each of them relating to
possession with the intent to distribute a controlled substance.
The jury verdicts entered on June 24, 2019.
Johnson and De Leon filed written motions for judgments
of acquittal under Rule 29 of the Federal Rules of Criminal
Procedure as to Counts Five and Six. The motions were denied.
The case proceeded to sentencing. Johnson was sentenced
to fifty-seven months of imprisonment on his convictions for Counts
Five and Six and three months' for his conviction on Count Seven,
to be served consecutively for a total sentence of sixty months'.
De Leon was sentenced to seventy-two months of imprisonment on his
convictions on Counts Five and Six and twelve months' for his
conviction on Count Eight, to be served concurrently.
Judgment entered against each defendant on September 25,
2019, and each filed a timely notice of appeal. See Fed. R. App.
P. 4(b)(1)(A)(I). We have jurisdiction over their appeals of their
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convictions under 28 U.S.C. § 1291 and over their appeals of their
sentences under 18 U.S.C. § 3742(a).
II.
We begin with the defendants' challenges to the District
Court's denial of their motions for judgments of acquittal as to
their convictions on Counts Five and Six. As we have explained,
the latter count was for destruction of property subject to
forfeiture while on a vessel, and the former count was for
conspiracy to commit the same. See United States v. Godin, 534
F.3d 51, 61 (1st Cir. 2008). De Leon and Johnson each contends
that the District Court erred because the evidence in the record
does not suffice to support a finding of guilt beyond a reasonable
doubt as to either offense.
Our review of the defendants' sufficiency-of-theevidence challenges is de novo. See United States v. BurgosMontes, 786 F.3d 92, 112 (1st Cir. 2015). In undertaking this
review, we must consider the evidence "in the light most favorable
to the verdict," United States v. Stewart-Carrasquillo, 997 F.3d
408, 417 (1st Cir. 2021), mindful that "both direct and
circumstantial evidence, whether alone or in concert, can sustain
a conviction," United States v. Clough, 978 F.3d 810, 816 (1st
Cir. 2020).
We have cautioned that in reviewing a sufficiency
challenge we may not "stack inference upon inference in order to
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uphold the jury's verdict." United States v. Guzman-Ortiz, 975
F.3d 43, 55 (1st Cir. 2020) (quoting United States v. Valerio, 48
F.3d 58, 64 (1st Cir. 1995). At the same time, we also have
explained that we "may not pursue a divide and conquer strategy,"
id. (internal quotation marks omitted), that would isolate each
piece of evidence without giving due weight to the picture that it
helps to create when the evidence is considered as a whole.
Instead, we must consider the evidence "in its totality," id. at
54, as the ultimate question that we must answer "is not whether
a reasonable jury could have acquitted the defendant, but rather
whether a reasonable jury 'could have found that the government
proved each element of the crime beyond a reasonable doubt.'"
Stewart-Carrasquillo, 997 F.3d at 418 (quoting United States v.
Paz-Alvarez, 799 F.3d 12, 25 (1st Cir. 2015)).
We agree with the government that, under the standards
just described, there is no merit to the sufficiency challenges
before us. To see why, it first helps to provide some more
background about the government's case and the nature of the issues
that are in dispute in relation to the defendants' sufficiency
challenges. We then will turn to the specific arguments that each
defendant makes about why the evidence is too thin, starting with
Johnson's.
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A.
The indictment charged De Leon and Johnson each with
violating 46 U.S.C. § 70503(a)(2) and 18 U.S.C. § 2 by destroying
property subject to forfeiture as defined by 21 U.S.C. § 881(a),
as well as conspiring to do the same. Section 881(a), in turn,
provides that certain categories of property are subject to
forfeiture, including "[a]ll controlled substances which have been
manufactured, distributed, dispensed, or acquired in violation of
[the Act]", id. § 881(a)(1), and "[a]ll raw materials, products,
and equipment of any kind which are used, or intended for use, in
manufacturing, compounding, processing, delivering, importing, or
exporting any controlled substance," id. § 881(a)(2).
The indictment specified the property subject to
forfeiture for each defendant as "a manufactured, distributed,
dispensed, acquired, or possessed controlled substance." Id.
§ 881(a)(1). The indictment did not identify "equipment of any
kind which are used, or intended for use, in manufacturing,
compounding, processing, delivering, importing, or exporting any
controlled substance" as constituting the predicate property
subject to forfeiture for any of the charges against either De
Leon or Johnson. Id. § 881(a)(2).
Notwithstanding these features of the indictment, the
District Court instructed the jury as follows as to what it would
need to find to return a verdict of guilty for the charges
- 11 -
underlying the convictions at issue here. With respect to the
charge for the underlying substantive offense, the District Court
instructed, the jury would have to find beyond a reasonable doubt
that: (1) "[O]n the date charged, [the] defendants were on board
the vessel in this case and, at the time, destroyed property that
was on board the vessel;" (2) "the property was a controlled
substance or equipment used for delivering controlled substances"
(emphasis added); and (3) "they did so knowingly and
intentionally." With respect to the charge for the underlying
conspiracy offense, the District Court instructed, the jury would
have to find the same with the one difference being that the jury
would have to find beyond a reasonable doubt that the defendant
"conspired to destroy property [subject to forfeiture] that was on
board the vessel" rather than that the defendant had in fact
destroyed it.
The government does not dispute, however, the
defendants' contention that, despite the instructions, the
forfeitable property that serves as the predicate for the
underlying convictions is a "controlled substance" and not
"equipment used for delivering controlled substances." The
government thus does not contend that the defendants' convictions
may be upheld if the evidence suffices to show beyond a reasonable
doubt that each destroyed -- and conspired to destroy -- such
equipment rather than a controlled substance. In this respect,
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the government does not dispute the defendants' contention that
the evidence must suffice to show beyond a reasonable doubt that
the forfeitable property that each defendant destroyed -- and
conspired to destroy -- was a controlled substance.
Nonetheless, the government contends that the defendants
are wrong to assert -- insofar as they do -- that their acquittals
of the counts that charge each of them with the cocaine possession
offenses in and of themselves require us to sustain their
sufficiency challenges to the convictions for the distinct
offenses that they challenge here. We agree. A conviction on one
count may be upheld against a sufficiency challenge, even though
it is seemingly inconsistent with that jury's verdict of acquittal
on another count. See Dunn v. United States, 284 U.S. 390, 393
(1932) ("Consistency in the verdict is not necessary. Each count
in an indictment is regarded as if it was a separate indictment.");
see also United States v. Powell, 469 U.S. 57, 64-65 (1984)
(confirming that Dunn's rule remains good law).
The critical question for us, then, is whether, for each
defendant, the evidence suffices to show beyond a reasonable doubt
that each of them agreed to jettison cocaine from the boat and
that each of them did so. For, if the evidence so suffices, then
the defendants' challenges to the District Court's denial of their
motions for acquittal necessarily fail.
- 13 -
B.
Johnson contends that the evidence does not suffice to
support his conviction for either the substantive or the conspiracy
variant of the offense because "the only evidence showing
destruction of cocaine was [his out-of-court confession]," and
there was too little independent proof that tends to establish
that the crimes to which he admitted in that confession occurred.
He relies for this proposition on our decision in United States v.
Tanco-Baez, 942 F.3d 7 (1st Cir. 2019).
In Tanco-Baez, we explained why a defendant's out-ofcourt confession alone, due to a specific concern about its
reliability, cannot be the sole basis to support a conviction.
That concern arises when there is no substantial independent
evidence in the record that the crime that the confession
encompasses in fact occurred. Thus, we explained in Tanco-Baez,
such a confession must be supported by "substantial" independent
evidence that "tends to establish" that the crime admitted in the
confession in fact occurred in order for that confession to be
given weight in assessing whether the evidence as a whole suffices
to support the conviction beyond a reasonable doubt. Id. at 20
(quoting Opper v. United States, 348 U.S. 84, 93 (1954)).
We emphasized in Tanco-Baez, however, that the kind of
evidence that could serve this corroborating function need not be
strong enough in its own right to support the conviction. Id.
- 14 -
Rather, such evidence need be strong enough only to provide the
kind of support for the confession's reliability that, despite the
out-of-court circumstances in which it is claimed to have been
made, would permit it to be deemed reliable when considered along
with the evidence in the record as a whole. Id. Thus, in the
event such corroborating evidence is present, the confession may
be relied upon to support the conviction against the sufficiency
challenge. Id.
Against this legal backdrop, we begin our analysis by
considering the evidence of what Johnson concedes constitutes the
out-of-court confession by him to the crimes for which he was
convicted. That confession was introduced at trial through the
testimony of the law enforcement agents to whom Johnson spoke soon
after the interdiction of the boat.
First, Agent Calderón testified, in response to
questions from the prosecutor, about the statements that Johnson
made to him. Specifically, he testified as follows in that regard:
Q: And what, if anything, did [Johnson] say
about the contents of the boat[] he left on?
A: He stated that once he was in the boat,
eso, referring to drugs[,] were in the boat.
Q: And he used that word specifically, eso?
A: Eso, correct.
Q: And when have you heard that in your career?
A: In previous drug trafficking investigations
where they will refer to drugs as eso.
Q: Does eso refer to a particular type of drug
or just drugs in general?
A: Mostly cocaine as that was smuggled over in
this . . . area of responsibility.
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Q: And what, if anything, did Defendant
Johnson say about what happened when law
enforcement approached the vessel on which he
was?
A: He stated that when he saw that he was going
to be interdicted by the marine officers . . .
he grabbed the small engine [to] which the
bales were tied up, the doce piezas [was] the
term that he used, called pieces, within two
bales. Each one has six pieces, they were
tied up to a rope to the small engine and he
jettisoned [it] overboard, he threw them
overboard into the water, so it would s[ink]
and it [would]n't be recovered by law
enforcement.
Q: I want to unwrap that statement just a
little bit. You stated that he said that there
was a small outboard engine onboard?
A: Correct.
Q: Did he provide any details about that small
outboard engine?
A: I believe -- if I recall correctly it was
a 30 horsepower.
Q: A 30 horsepower engine?
A: Correct.
Q: You said something about two sacks or
bales.
A: Correct. He stated that there were two
small sacks or bales and each one contained
six pieces, referring to bricks of cocaine,
for a total of 12 pieces, that were tied up to
a rope to the engine, and he lifted it and
threw them overboard.
Second, Agent Borges testified about what Johnson said
to him. In doing so, he recounted that he "specifically talked to
Johnson. And during those preboarding questions [Johnson]
said . . . that they threw overboard a small spare engine."
Johnson does not dispute that, from the testimony of
these two agents about the statements that he made to them, a
reasonable juror could find that he admitted that he was aboard
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the boat with another person (De Leon), that the boat was
transporting cocaine, that he tied the cocaine to a spare engine,
and that "they" intentionally threw the engine overboard (thereby
destroying the cocaine) upon learning that the boat had been
detected by law enforcement.2 In other words, he does not dispute
that the statements -- together -- constitute a confession to the
crimes at issue here. Johnson nevertheless contends that this
out-of-court confession cannot suffice to support either of his
convictions at issue because there was an absence of "substantial"
independent evidence that "tends to establish" that the crimes
that he admitted committing in his out-of-court confession
occurred. See Tanco-Baez, 942 F.3d at 20 (quoting Opper, 348 U.S.
at 93). We do not agree.
For starters, substantial independent evidence was
introduced at trial that "tends to establish" that the boat on
which Johnson was traveling did have a controlled substance --
cocaine -- aboard it just prior to its interdiction. Francisco
González, the CBP agent patrolling the ocean by plane the night of
2 We note, in this regard, that in the testimony reciting
Johnson's statements, the agents did not at any point assert that
Johnson himself stated that the material he tied to the engine was
"cocaine," as he instead referred to what was tied to the engine
only as "eso" and "doce piezas." But, the agents testified that
"eso" and "doce piezas" are common slang terms that drug smugglers
use to refer to cocaine. Johnson does not contend that his
statements -- because they refer to "eso" and "doce piezas" and
not "cocaine" -- do not constitute a confession to the crimes
charged.
- 17 -
the interdiction, testified that he spotted the boat on which
Johnson was found in the waters prior to its interdiction. He
further testified that the images that he reviewed on the infrared
camera on his plane -- which were also introduced into evidence
and that he testified were taken prior to the boat's interdiction
-- showed "bales or packages" that were "in the middle" of the
boat and thus in a location on the vessel that would have made it
possible for those on board to "get rid of" the "bales or packages"
easily if the boat were intercepted.
González also testified that the boat that the
defendants were on was traveling near "Highway 19," which he
described as a common drug smuggling route off the coast of Puerto
Rico, when it was interdicted and that he had participated in a
number of operations in which large quantities of cocaine had been
seized from vessels traveling close to Highway 19. He further
testified that the boat had no navigational lights running when it
was spotted, and that it was the most "common type" of vessel to
be carrying controlled substances because larger boats were
typically used to smuggle migrants.
In addition, Calderón, who had questioned Johnson
following the boat's interdiction, testified in his own right about
the general practices of the drug trafficking operations that he
had investigated during his time patrolling the waters around
Puerto Rico. That testimony accorded with González's about how
- 18 -
such operations are usually conducted. It accorded as well with
the description that Calderón had provided about what González had
observed with respect to the boat on which Johnson was found.
This testimony -- and the evidence from the infrared
camera -- was not the only evidence that the government introduced
that bears on whether there was substantial independent evidence
that "tends to establish" that cocaine was on board the boat. The
government also introduced testimony from the handler of a drug
canine, who testified that when the dog conducted a canine sniff
of the boat, it alerted to "[p]ossible contamination of narcotics."
The government also introduced testimony from an intelligence
research analyst about the contents of a cell phone retrieved from
the defendants' boat, as well as a report that contained a
translation of those messages. That evidence, together, showed
that the phone's owner had some kind of transaction planned.
All of this evidence is independent of Johnson's outof-court confession, and, at least when considered as a whole, it
constitutes substantial evidence that "tends to establish" that
cocaine was on board the boat prior to its interdiction. It thus
serves the necessary corroborative function with respect to that
aspect of Johnson's out-of-court statements to Calderón about his
criminal conduct.
The government introduced similarly substantial evidence
independent of Johnson's out-of-court confession that "tends to
- 19 -
establish" another critical aspect of it -- namely, that there was
a spare engine aboard to which Johnson had tied at least some of
the cocaine that was aboard the boat. That evidence includes the
evidence already described that indicates that the boat was
involved in smuggling drugs -- specifically cocaine. It also
includes testimony from Agents Calderón and González that cocaine
smugglers often travel with a spare engine on board their boat for
the purpose of ensuring that they have a ready means of disposing
of the cocaine while they are on the open waters.
Agent Calderón testified in that connection that
typically "bale[s]" containing cocaine are "tied" to a "smaller
engine" by drug smugglers so that any cocaine tossed overboard
"will sink and it will not be recovered as evidence by law
enforcement." González, the CBP officer, also testified that drug
smugglers package cocaine in "bales" and then they "attach each
. . . bale[] to another [bale] with a line,. . . and at the end of
the line they put some weight" -- often in the form of a "spare
engine[]" -- so that if "any law enforcement vessel detect[s] them,
they're able to throw it [into] the water and s[i]nk it [in] no
time." Thus, there is substantial independent evidence in the
record that "tends to establish" the aspect of Johnson's confession
in which he admitted that such an engine was on the boat and that
cocaine was tied to it.
- 20 -
Finally, the government provided independent evidence
that "tends to establish" Johnson's admission that he
intentionally jettisoned the engine after realizing that the boat
had been detected by law enforcement. For example, González
testified that, after the defendants appeared to hear the plane
and the approaching interdicting vessel, and while he was moving
the plane in for a closer look, he could no longer see on the
infrared camera the bales or packages that he had originally
spotted in the middle of the boat. Moreover, when the boat was
interdicted, no bales or packages were found on board or in the
water.
Viewed as a whole, then, the record contains
"substantial" evidence that "tends to establish" each of the key
components of the statements attributed to Johnson that he does
not dispute, in pressing his argument under Tanco-Baez, combined
to constitute a confession to his destruction of cocaine on board
a boat. Accordingly, Johnson's Tanco-Baez-based challenge fails
as to his conviction for the destruction of a controlled substance
offense.
We emphasize that Tanco-Baez reversed a conviction for
possession of a firearm by an unlawful user of a controlled
substance under 18 U.S.C. § 922(g)(3) only after finding that the
government did not sufficiently corroborate "each essential fact
that [was] admitted" -- in that case, the defendant's statement to
- 21 -
law enforcement that he was a long-term marijuana user. 942 F.3d
at 14-15, 25. And, Tanco-Baez did so only after determining that
the government was unable to provide any independent evidence that
corroborated the admission of habitual drug use. Id. at 24-25.
The government in this case, by contrast, provided
substantial independent evidence that "tends to establish" all the
relevant aspects of Johnson's admissions concerning the
destruction of forfeitable property offense -- his statements that
"eso" or cocaine was on the boat and tied to an engine, and his
confession that "they" intentionally threw the engine overboard.
We do not mean to suggest in emphasizing this distinction that
independent evidence of this comprehensive kind is needed to
satisfy the requirements described in Tanco-Baez for permitting an
out-of-court confession to be given weight. But, at least in the
face of such comprehensively bolstering evidence, we must reject
Johnson's contention that the evidence was not sufficient to
support his convictions for the charged crime, given his conceded
confession to it.
There does remain Johnson's challenge under Tanco-Baez
to his conviction for conspiracy to destroy forfeitable property
on a vessel. But, to the extent that more is needed under TancoBaez to corroborate the aspects of the confession that bear
directly on whether he committed the conspiracy offense -- namely,
- 22 -
his statement that "they" threw the engine overboard with twelve
"piezas" tied to it -- more was provided.
Calderón testified that the thirty-horsepower engine
Johnson professed to have thrown overboard through his statements
to law enforcement would have "weigh[ed] approximately 50 [or] 60
pounds." Calderón further testified that, based on his experience
investigating drug trafficking, each "pieza" of cocaine typically
would weigh 2.4 pounds. Thus, that testimony supplies independent
evidence that "tends to establish" that Johnson, after setting out
on a multi-day trip on a small boat carrying controlled substances
with De Leon, did not act alone in lifting more than sixty pounds
in the dark of night but instead was assisted by his boatmate.
So, here, as well, Johnson's Tanco-Baez-based challenges come up
short.
C.
We turn now to De Leon's sufficiency challenges to his
convictions, which also are for destruction of property subject to
forfeiture while aboard a boat and conspiracy to commit that
offense. He challenges both convictions on the ground that the
evidence of these charges was "circumstantial" and "improper[ly]"
required the "jury [to] mount[] inference over inference."
We first consider whether the evidence suffices to
permit a reasonable juror to find beyond a reasonable doubt that
cocaine was on the boat and that De Leon assisted Johnson in
- 23 -
destroying it. Because we conclude that it does, we conclude that
De Leon's conviction for the destruction of forfeitable property
as defined by § 881(a)(1) on a vessel is supported by sufficient
evidence.
De Leon is right that we may not consider the statements
that Johnson made to Calderón in which Johnson purportedly admitted
either that "eso" or that a spare engine that had something tied
to it was aboard the boat. The jury was instructed not to consider
those statements for purposes of assessing whether there was
evidence sufficient to find De Leon guilty of the charges that he
faced, and so we set them aside for present purposes.
There is no bar, however, to our considering the
inculpatory statements by Johnson that Agent Borges testified
Johnson made to him. There was no similar prohibitory instruction
by the District Court to the jury regarding those statements; they
were admitted into evidence against De Leon. Nor does De Leon
argue otherwise. Accordingly, we must take account of Johnson's
statements that "they" threw the "engine" overboard, as he made
that statement to Borges, in assessing whether the quantum of
evidence in the record suffices to support De Leon's convictions.
With those preliminaries out of the way, the central
question is whether Johnson's statement to Agent Borges that "they
threw overboard a small spare engine" is sufficient to support De
Leon's conviction for the destruction-of-forfeitable-property-
- 24 -
while-on-a-vessel offense when that statement is considered along
with all the other evidence -- other than, that is, Johnson's
statements to Agent Calderón. We conclude that it is.
At trial, the government presented circumstantial
evidence, previously described, that "tends to establish" that
cocaine was on the boat on which De Leon was found. This evidence
includes the infrared images suggesting that the boat the
defendants were on carried cargo or "bales" of some kind; the
evidence of the text messages from the phone found on the boat
that suggested that the sender had a transaction of some kind
planned; the testimony from Agent González stating that the boat
was traveling without navigational lights, on a route infamous for
drug smuggling, and was the type of vessel commonly used for drug
smuggling; and the testimony by the canine handler that after the
boat was interdicted, a canine sniff of the boat revealed
"[p]ossible contamination of narcotics."
Moreover, Agents Calderón and González provided
testimony that in their experience drug smugglers often have spare
engines aboard their boats to weigh down the cocaine in the event
that they need to jettison the drugs to avoid their detection by
law enforcement. And -- crucially -- Agent Borges testified that
Johnson told him that "they threw overboard a small spare engine"
prior to the boat being interdicted.
- 25 -
Thus, a rational juror could have concluded beyond a
reasonable doubt that -- in light of the circumstantial evidence
that the boat contained cocaine, the testimony that drug smugglers
use spare engines to quickly dispose of cocaine in the event of an
interdiction, and Johnson's statement that "they threw overboard
a small spare engine" -- De Leon intentionally jettisoned cocaine
from the vessel. The result is that we must reject De Leon's
sufficiency challenge to his conviction for the destruction-offorfeitable-property offense.
There remains De Leon's challenge to the sufficiency of
the evidence supporting his conviction of conspiring to destroy
forfeitable property. It, too, falls short.
Most problematic for De Leon is Borges's testimony that
Johnson told Borges that "they threw overboard a small spare
engine" (emphasis added) -- implying that Johnson worked with
another person -- when he jettisoned the engine. As De Leon was
the only other person on the boat, it is no leap to conclude that
he was that other person.
Problematic as well for De Leon is Calderón's testimony
that the likely weight of the engine Johnson described was
"approximately 50 [or] 60 pounds." That testimony when combined
with the other testimony in the record that drug smugglers
typically tie cocaine to the engine -- which would add further
weight to the already heavy engine -- would allow a reasonable
- 26 -
juror to conclude that De Leon and Johnson had to have worked
together to have been physically able to move the engine and throw
it overboard in the few minutes between when they heard the plane
and when the boat was pictured as no longer containing bales. The
record thus contains sufficient evidence for a rational juror to
find beyond a reasonable doubt that De Leon conspired to destroy
cocaine on a boat. The District Court therefore did not err in
denying De Leon's motion for judgment of acquittal as to Counts
Five or Six.
III.
We next consider the defendants' arguments for vacating
their convictions due to various alleged errors at trial. We begin
with the arguments for vacating them that De Leon advances. We
then consider Johnson's.
A.
De Leon contends, among other things, his rights under
the Confrontation Clause of the U.S. Constitution as recognized in
Bruton were violated by the use of Johnson's statements to Agents
Calderón and Borges at his joint trial with Johnson,
notwithstanding the District Court's instruction to the jury that
it could not consider Johnson's statements to Calderón in De Leon's
case. We described these statements in detail above in analyzing
Johnson's sufficiency challenges. For present purposes, we
emphasize only that, to Agent Calderón, Johnson reportedly said
- 27 -
that "eso" was on the boat in the amount of "doce piezas" and that
it was tied to a spare engine, which "he" threw overboard, and
that, to Agent Borges, Johnson reportedly said that "they threw
overboard a small spare engine." (emphasis added).
De Leon argues that the "statements" attributed to
Johnson by Calderón and Borges "are incriminating on their face,
and did not become incriminating by [his] testimony or by the
introduction of any other evidence." Put otherwise, he contends,
under Bruton, these statements, together, rendered the admission
of Johnson's confession impermissible "regardless of what the
[District] Court instructed the jury to do with it."
The government does not dispute that De Leon's Bruton
challenge is preserved.3 We thus proceed on that understanding,
which means that our review is de novo. See United States v. Vega
Molina, 407 F.3d 511, 520 (1st Cir. 2005). Because we find merit
to De Leon's Bruton challenge, we must vacate his convictions on
that ground alone. Id. at 522, 535. We thus do not address the
various separate challenges that he makes to his sentence.
1.
The Confrontation Clause provides that "[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to
3 In addition to conceding that de novo review applies, the
government has not contended in its briefs or at oral argument
that De Leon has waived any particular argument in support of his
Bruton claim.
- 28 -
be confronted with the witnesses against him." U.S. Const.
amend. VI. The Supreme Court of the United States held in Bruton
that a defendant is deprived of that right "where the powerfully
incriminating extrajudicial statements of a codefendant, who
stands accused side-by-side with the defendant, are deliberately
spread before the jury in a joint trial" and the "alleged
accomplice . . . does not testify and cannot be tested by crossexamination." 391 U.S. at 135-36 (1968).
Notably, the Court set aside the defendant's conviction
in Bruton despite "concededly clear instructions to the jury to
disregard" the confession as to him. Id. at 137. The Court
explained that it could not "accept limiting instructions as an
adequate substitute for [Bruton's] constitutional right of crossexamination," id. at 137, given the "powerfully incriminating"
nature of the confession as to the defendant himself, id. at 135.
In light of Bruton, the fact that there was a limiting
instruction here -- with respect to Johnson's statements to
Calderón -- is no bar to De Leon's challenge to the use of those
statements. Insofar as the use of the statements is impermissible
under Bruton, the instruction cannot cure it. We turn, then, to
the question whether the use of the statements -- along with those
that Johnson made to Borges -- is barred by Bruton. But, the
answer to that question does not depend merely on what the Court
said in Bruton itself.
- 29 -
In Richardson v. Marsh, the Court held that Bruton does
not apply where "the codefendant's confession is redacted to omit
any reference to the defendant, but the defendant is nonetheless
linked to the confession by evidence properly admitted against him
at trial." 481 U.S. 200, 202, 211 (1987). The Court explained
that the codefendant's confession in Bruton "'expressly
implicat[ed]' the defendant as his accomplice" and "at the time
that confession was introduced there was not the slightest doubt
that it would prove 'powerfully incriminating.'" Id. at 208
(quoting Bruton, 391 U.S. at 124 n.1, 135). By contrast, the Court
further explained, the confession at issue in Richardson "was not
incriminating on its face, and became so only when linked with
evidence introduced later at trial," namely, "the defendant's own
testimony." Id. It then held that "[w]here the necessity of such
linkage is involved," "the Confrontation Clause is not violated by
the admission of [the] . . . confession" so long as there is "a
proper limiting instruction." Id. at 208, 211; see also Vega
Molina, 407 F.3d at 520 ("Statements that are incriminating only
when linked to other evidence in the case do not trigger
application of Bruton's preclusionary rule.").
Richardson, however, does not itself mark the end of the
story when it comes to Bruton. Thereafter, the Court weighed in
on Bruton's scope yet again in Gray v. Maryland, 523 U.S. 185
- 30 -
(1998), and, it did so in a way that is of direct relevance here,
given the nature of the Bruton challenge that De Leon presses.
Gray recounted that "Richardson placed outside the scope
of Bruton's rule those statements that incriminate inferentially."
Id. at 195. But, Gray explained, "inference pure and simple cannot
make the critical difference." Id. Instead, Gray held, the
applicability of Richardson "depend[s] in significant part upon
the kind of, not the simple fact of, inference." Id. at 196.
At issue in Gray was a codefendant's statement that
included a response to the question, "Who was in the group that
beat Stacey?" The answer had been redacted to read: "Me, deleted,
deleted, and a few other guys." Id. at 196. The Court acknowledged
"that the jury [was required to] use inference to connect . . .
[such a] redacted confession with the defendant." Id. at 195.
The Court nonetheless held that the redacted confession was
facially incriminatory, id. at 197, notwithstanding the fact that
statement did not expressly name Gray and even though it would be
impossible to infer from the text of the codefendant's statement
alone to whom "deleted" referred, see id. at 196.
Gray reasoned that a juror who put together the pieces
of the evidence and the prosecutor's argument would naturally infer
that the deleted reference in the confession must have been a
reference to the defendant. Id. at 193; see also id. at 195
(noting that the "Court has assumed . . . that . . . specific
- 31 -
descriptions," such as "where confessions describe [a] codefendant
as the 'white guy' and give[] a description of his age, height,
weight, and hair color," "fall inside . . . Bruton's protection"
(quoting Harrington v. California, 395 U.S. 250, 253 (1969)));
Vega Molina, 407 F.3d at 520 (comparing the efficacy of redaction
in a case involving "numerous events and actors, such that no
direct inference plausibly can be made that a neutral phrase like
'another person' refers to a specific codefendant" with its utility
in a case "involv[ing] so few defendants that the statement leaves
little doubt in the listener's mind about the identity of 'another
person'"). The Court pointed out that a juror need not be wellversed in the law to make that inference with ease. Indeed, the
Court explained, if the "blank" referred to someone else, a juror
"might . . . wonder how . . . the prosecutor could argue the
confession is reliable, for the prosecutor, after all, has been
arguing that [the defendant], not someone else" committed the crime
described in the confession. Gray, 523 U.S. at 193. Thus, Gray
makes clear that, even when the jury must engage in some
inferential reasoning in order to conclude that a codefendant's
statement is incriminating, the statement still may fall within
the scope of Bruton. For the statement to do so, though, the
inference that is necessary to make it incriminating must be one
"that a jury ordinarily could make immediately, even were the
confession the very first item introduced at trial," such that the
- 32 -
statement "obviously" and "directly" implicates the defendant in
the crime. Id. at 196.
2.
The government contends that, notwithstanding Gray, there is
no Bruton problem here in part because the statements attributed
to Johnson were made to different agents who each independently
testified about what Johnson had said to each of them. In
particular, the government asserts that when viewed separately,
the two statements are not facially incriminating as to De Leon.
Johnson's alleged statement to Agent Borges -- that "they" threw
the engine overboard -- is not incriminating on its own, according
to the government, as the government agrees that De Leon was not
charged with jettisoning equipment used in connection with the
transportation of a controlled substance but rather just
destruction of a controlled substance while on a vessel. According
to the government, Johnson's purported statements to Agent
Calderón also did not facially incriminate De Leon, because
Calderón testified that Johnson only described what he himself had
done without mentioning De Leon. In other words, the government's
argument appears to be that the work that the jury would have to
do to combine the statements would require too much inferential
- 33 -
reasoning to permit them to be deemed facially incriminating.4 We
do not agree.
Whether a statement by a non-testifying codefendant is
"facially incriminatory" of the defendant himself turns on how
readily a juror might make the inferences required for the
statement to be incriminating. The government develops no argument
-- beyond a conclusory one -- for determining that merely because
the statements attributed to Johnson were introduced by the
testimony of two different government witnesses it would take more
than an immediately obvious inference for a juror to put them
together. It is thus reasonable to conclude here that the jury
immediately, and without having to resort to other evidence, would
have discerned the significance of the collective import of these
statements, whatever it may have been, despite the fact that they
were delivered separately, in just the manner contemplated in
Gray.5 We therefore reject the notion that the government can
4 In his arguments to us, De Leon contends that Johnson's
statements are testimonial such that the Confrontation Clause
applies. The government does not contest this point, and thus we
find the government to have waived any contention that the
statements were not testimonial in nature.
5 We note that our conclusion that the government cannot split
a defendant's confession into pieces to evade a Bruton problem
does not implicate the administrability concerns that informed the
Court's holding in Richardson. The government had the entirety of
Johnson's statement available to it at the outset of trial, and we
are not concerned under such circumstances that it would have been
"[im]possible [for the government] to predict the admissibility of
- 34 -
avoid creating a Bruton problem by simply splitting up a
defendant's confession and having multiple government witnesses
testify to pieces of it.
True, as we explain later, a juror would have been free
to believe the testimony recounting some of Johnson's statements
but not others precisely because different agents recounted
hearing them in distinct circumstances. But, the fact that some
portions of testimony about a codefendant's confession might be
given more weight than others by a juror is not a reason to conclude
that the confession itself, if believed, is not facially
incriminating under Bruton. Even when a codefendant's confession
is admitted by testimony given by a single witness a jury might
find some portions of that witness's recounting of it more credible
than others. That there is a possibility that a jury may not
actually find evidence of a codefendant's confession persuasive or
even credible is of no moment under Bruton, which requires that we
assume that a confession will be given maximum weight by a jury.
See Bruton, 391 U.S. at 135-36. Consequently, we consider
Johnson's statements together.
3.
Considering Johnson's separate statements as one, then,
we must decide whether they, together, constitute a facially
[that] confession in advance of trial." Richardson, 481 U.S. at
209.
- 35 -
incriminating confession within the meaning of Bruton. Notably,
we are not dealing here with a case that is just like Richardson
and Gray, as each of those cases arose in the redaction context.
Notably, too, we are not dealing here with statements that require
any inference -- as the statements in Richardson and Gray did --
as to whether the allegedly incriminating statements of the
codefendant implicate the defendant in the conduct described.
Johnson's statements, given Gray, obviously referred to De Leon as
a participant in the conduct by admitting that "they" acted
together. Nor does the government contend otherwise.
Thus, the Bruton challenge that De Leon raises turns on
a question distinct from the one that arose in the Supreme Court's
Bruton trilogy that we have detailed above. The question here
concerns whether the codefendant's statement is a confession to
any criminal conduct at all, even as to himself.
The issue arises in this way here because the statements
by Johnson that are at issue do not refer expressly to "cocaine"
or "controlled substances" at any point. They instead refer only
to "eso" and "doce piezas."
This feature of the statements, however, does not
necessarily preclude us from finding a Bruton violation here. We
have applied the Bruton framework in cases in which the question
was not whether the anonymization was adequate but whether the
admitted-to conduct was sufficiently inculpatory. See, e.g.,
- 36 -
United States v. Lopez-Lopez, 282 F.3d 1, 11-13 (1st Cir. 2002)
(considering whether Bruton applied to a codefendant's statement
that could be read as referring to the defendant but was
questionably inculpatory); United States v. Limberopoulos, 26 F.3d
245, 253 (1st Cir. 1994) (rejecting a Bruton claim as to statements
that did "not implicate" the defendant); cf. Brown v. Maloney, 267
F.3d 36, 42 (1st Cir. 2001) (concluding a state-court decision was
not contrary to clearly established Supreme Court precedent where
it found no Bruton issue because the codefendants' statements were
only "somewhat incriminating" because they only had the effect of
placing the defendant "close to the crime location"). And,
although, for record-based reasons, we did not find a Bruton
violation in any of those cases, see, e.g., Lopez-Lopez, 282 F.3d
at 11-13 (rejecting the defendant's Bruton claim as to a
codefendant's statement directing the defendant "don't answer" in
response to a question by law enforcement because the "statement
[was] not sufficiently close to a confession" to be "powerfully
incriminating" as it "did not even mention any person or any crime
or any criminal responsibility"); Limberopoulos, 26 F.3d at 253
(concluding that Bruton did not apply to statements made by a
codefendant when he surrendered a license because the inference
"that the [statement] was an obvious attempt at deceit and coverup"
was not obvious or immediate but rather "require[d] a considerable
chain of subsidiary inferences"), the government does not argue
- 37 -
that, because we are not dealing with a redaction or a question as
to whether the defendant is implicated in the statements by the
codefendant confessing to criminal conduct, Bruton is inapplicable
here.
The government's sole contention as to why there is no
Bruton violation -- insofar as the statements at issue must be
considered together -- hinges on the fact that Johnson did not at
any point in his statements expressly assert that he had tied a
controlled substance to the engine that was jettisoned. Rather,
the government stresses, Johnson referred in those statements only
to "eso."
According to the government, that feature of Johnson's
statements in and of itself ensures that there is no problem here
under Bruton, because it ensures that those statements are not
themselves "facially incriminating" of De Leon. According to the
government, the statements became so only when linked to the other
testimony at trial that explained that "eso" and "piezas" are
common slang terms for cocaine. We thus next take up that
argument, which, as we will explain, fails to align with the logic
set forth in Gray.
4.
The Court made clear in Gray that the bare text of the
codefendant's confession in isolation does not control the Bruton
inquiry. Instead, Gray instructs that where the record makes it
- 38 -
"obvious[]" that a statement that might be somewhat ambiguous taken
alone is in fact facially incriminating, the inference required of
the jury to find the statement incriminating is not "the kind
of . . . inference" that would take the admission outside Bruton's
ambit. Gray, 523 U.S. at 196 (emphasis omitted).
As the Court explained, "confessions that use shortened
first names, nicknames, descriptions as unique as the 'red-haired,
bearded, one-eyed man-with-a-limp,' and perhaps even full names of
defendants who are always known by a nickname" are all examples of
statements which the Court "has assumed . . . [are] not
outside . . . Bruton's protection." Gray, 523 U.S. at 195 (quoting
United States v. Grinnell Corp., 384 U.S. 563, 591 (1966) (Fortas,
J., dissenting)). Our decision in Vega Molina is to the same
effect. It explains that the inquiry under Bruton, Richardson,
and Gray "requires careful attention" not only "to the text of the
statement itself" but also "to the context in which it is
proffered," all with the aim of assessing whether a "direct
inference [from the statement] plausibly can be made." 407 F.3d
at 520.
Applying this guidance, we have no doubt that if Johnson
referred to cocaine in a language other than Spanish or English,
the statement containing that reference would not be insulated
from Bruton's reach just because the reference had to be translated
to a different language to be understood by the jury. The same is
- 39 -
true, we think, if Johnson had used an obvious slang name for
cocaine without using that word itself -- notwithstanding that the
slang name could, in theory and stripped of context, have a
different meaning, as might be true of the word "crack." There,
too, we would still deem the statement to be facially
incriminating, just as a nickname may be.
The only question here, then, is whether Johnson's
references to "eso" and "piezas" in answering questions put to him
during a criminal investigation triggered by suspicions of drug
smuggling about what he had tied to the engine when he jettisoned
it are similarly facially incriminating. We conclude that they
are.
We may assume that the government is right that the words
"eso" and "piezas" themselves do not in the abstract necessarily
carry as an ordinary meaning "cocaine." But, language is always
used in context, as Gray instructs us to remember in assessing
whether a Bruton violation occurred. See Gray, 523 U.S. at 195-
96; see also Vega Molina, 407 F.3d at 520-21. Taking that
instruction seriously, we note that the government has not argued
that there is anything in the record from which the jury could
have concluded that "eso" and "piezas," as used in the context in
which the witnesses described Johnson as having used them (namely,
answering questions during an interrogation regarding his
suspected drug smuggling), referred to anything but cocaine. Thus,
- 40 -
while neither word inherently carries that meaning, any more than
a nickname or a description of a red-headed, bearded man with a
limp inherently refers to a defendant who happens to have that
alias or those characteristics, Johnson's statements were
"facially incriminat[ing]" as to De Leon and fall within the ambit
of Bruton. Gray, 523 U.S. at 196 (emphasis omitted) (quoting
Richardson, 481 U.S. at 209)).
In accord with that conclusion, we are confident that
"[a] juror who does not know the law," to use the Court's
terminology from Gray, 523 U.S. at 193, would easily intuit that
had the meaning of "eso" been ambiguous, Agent Calderón would have
asked Johnson a follow up question -- namely, "What is eso?" Given
that Calderón did not acknowledge asking such a question, a juror
would immediately infer here that the meaning of "eso" was
unambiguous to Johnson's interlocutor. And, in coming to that
conclusion, a juror would also immediately infer that "eso" must
obviously mean cocaine -- for if it did not mean as much, then
Calderón would have continued to question Johnson about what was
on the boat to determine if he would admit to possessing,
destroying, and conspiring to destroy forfeitable property.
Because we determine that Johnson's purported statements
to Agents Calderón and Borges were, when viewed together, facially
incriminating, we find that the admission of those statements
against Johnson in his joint trial with De Leon violated De Leon's
- 41 -
Sixth Amendment rights under Bruton. As such, the limiting
instruction the District Court gave as to Johnson's statements to
Calderón were insufficiently curative.6 We consequently must
vacate De Leon's convictions for Counts Five and Six.
IV.
We now turn to the challenges that Johnson brings in
which he contends that, due to trial errors, his convictions must
be vacated. He presents three such challenges: first, that one
of the empaneled jurors was not impartial; second, that the
District Court improperly allowed lay witnesses to testify to
technical, specialized subjects; and third, that the jury
instructions constructively amended the indictment.
"A constructive amendment occurs when the charging terms
of the indictment are altered, either literally or in effect, by
[the] prosecution or court after the grand jury has last passed
upon them." United States v. DeCicco, 439 F.3d 36, 43 (1st Cir.
2006) (quoting United States v. Fisher, 3 F.3d 456, 462 (1st Cir.
1993)). An amendment can be "brought about by a literal alteration
of the words in the indictment," by "a jury instruction which
modifies the offense charged," or by "the admission of evidence of
6 The government has developed no argument as to why, insofar
as there is a Bruton violation, such a violation would constitute
harmless error as to one or more of the counts of conviction that
De Leon challenges. See United States v. Wright, 937 F.3d 8, 30
(1st Cir. 2019) (explaining that "we may deem any harmless error
argument not briefed by the government as waived").
- 42 -
an offense not charged by the grand jury." United States v. Dunn,
758 F.2d 30, 35 (1st Cir. 1985). Because we conclude that
Johnson's assertion that his indictment was constructively amended
and that he was prejudiced thereby has merit, we begin and end our
analysis there.7
We first address Johnson's constructive-amendment
argument as it pertains to the substantive offense for which he
was convicted. We then address that argument as it pertains to
his conviction for conspiring to commit that same offense.8
7 Johnson's challenge to the admission of the testimony of
various law enforcement agents on the ground that they were not
qualified as experts but provided expert testimony anyway does
concern an issue that could be implicated in any re-trial that may
ensue. Nonetheless, it is not clear how the government will
present that case if it chooses to bring one. We do note that we
have emphasized in the past that "the line between expert testimony
under Rule 702 [of the Federal Rules of Evidence] and lay opinion
testimony under Rule 701 is, in practice, 'not [an] easy [one] to
draw.'" United States v. Valdivia, 680 F.3d 33, 50 (1st Cir. 2012)
(second and third alterations in original) (quoting United
States v. Cólon Osorio, 360 F.3d 48, 52-53 (1st Cir. 2004)).
Generally, "testimony based on the . . . expertise a witness
personally acquires through experience, often on the job," is lay
testimony. United States v. George, 761 F.3d 42, 59 (1st Cir.
2014) (citation omitted). But, testimony that requires a witness
to go beyond "simple logic and pattern recognition" and to rely
instead on a "technical understanding of the government's . . .
tools and . . . capabilities" -- even if that technical
understanding is developed on the job -- is typically considered
expert testimony under our precedent, requiring the witness to be
qualified as such. United States v. Montijo-Maysonet, 974 F.3d
34, 48-49 (1st Cir. 2020) (internal quotation marks and citations
omitted).
8 We note that even if De Leon could have raised the same
arguments that Johnson now advances in support of his assertion
that the indictment was constructively amended, he did not do so.
- 43 -
A.
Johnson acknowledges that the indictment "limited" his
charged conduct, with respect to the substantive offense, to "the
destruction of 'controlled substances.'" But, he points out that
the jury instructions allowed the jury to find him guilty of that
offense on grounds not included in the indictment. He contends in
this regard that, under those instructions, the jury was told that
it could find him guilty of the substantive offense even if it
found that he had not destroyed controlled substances but instead
had destroyed only "equipment . . . used . . . [in] . . .
delivering . . . any controlled substance." (alteration in
original).
Johnson does not dispute that he failed to raise this
challenge below. Accordingly, Johnson must survive plain-error
review to obtain relief on this ground. See United States v.
Brandao, 539 F.3d 44, 47 (1st Cir. 2008). He thus must establish
not only that there was an error, but "that it is 'clear or
obvious,' that his substantial rights were prejudiced thereby, and
that the 'fairness, integrity, or public reputation of judicial
As a result, we do not decide whether we would have vacated De
Leon's convictions on the same constructive amendment grounds on
which we vacate Johnson's convictions. See United States v.
Kilmartin, 944 F.3d 315, 326 (1st Cir. 2019), cert. denied, 140 S.
Ct. 2658 (2020) (noting that the court "ha[d] no duty" to consider
a constructive amendment argument the defendant did not make on
appeal).
- 44 -
proceedings' [was] 'seriously impaired,'" United States v.
Gaccione, 977 F.3d 75, 81 (1st Cir. 2020) (quoting United States v.
Rodríguez-Milián, 820 F.3d 26, 32-33 (1st Cir. 2016)). We conclude
that he has made that showing.
1.
With respect to the first two prongs of plain-error
review, Johnson contends that the District Court erred by
"impermissibly add[ing] possible bases for conviction beyond that
specified in the indictment" and that this error was clear or
obvious. We agree.
In Stirone v. United States, 361 U.S. 212 (1960), the
Supreme Court established that a constructive amendment occurs
when jury instructions "broaden[] the possible bases for
conviction from that which appeared in the indictment." United
States v. Miller, 471 U.S. 130, 138 (1985) (emphasis omitted)
(discussing Stirone, 361 U.S. at 213). There, the district court
submitted to the jury two different theories under which the
defendant could be found guilty of violating the Hobbs Act, either
of which could have independently supported a conviction under the
Act. Stirone, 361 U.S. at 213-14. But, the government had
specified only one of those theories in the indictment, id. at
213, and the Court concluded that the instructions thus
constructively amended the indictment, id.
- 45 -
The indictment in this case charged Johnson with
"knowingly and intentionally destroy[ing] property subject to
forfeiture" -- specifying that the "subject property" was a
"controlled substance." The indictment thus limited the theories
under which a jury could convict Johnson of the crimes. By
instructing the jury that it could find Johnson guilty if it found
beyond a reasonable doubt that "the property was a controlled
substance or equipment used for delivering controlled substances"
(emphasis added), the District Court instructed the jury about a
crime that was not contained in the indictment -- and committed a
"clear" and "obvious" error in doing so.
The government suggests that it was not an error to
instruct the jury on both possible bases for conviction because 21
U.S.C. § 881(a), which lists the types of property subject to
forfeiture, includes both "controlled substances" as well as
"equipment of any kind . . . used [for] . . . delivering . . .
controlled substances." 21 U.S.C. § 881(a). But, the fact that
the government could have indicted Johnson for destroying
"equipment used for delivering controlled substances" does not
change the fact that the government did not.
The indictment limited the charges against Johnson to
the one set forth in § 881(a)(1): destruction of a "manufactured,
distributed, dispensed, acquired, or possessed controlled
substance." We have previously found that when an indictment
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quotes directly from a section of a statute, it can be understood
to be referencing that specific section. See, e.g., United
States v. Kilmartin, 944 F.3d 315, 326 (1st Cir. 2019). That is
what we understand the indictment did here -- the indictment quoted
from § 881(a)(1), thereby limiting the charge to that provision.
Moreover, the jury instructions then broadened the
charge offense to encompass the one set forth in § 881(a)(2). The
written instructions stated that the jury could find each defendant
guilty of "intentionally destroying property that is subject to
forfeiture under section 511(a) of the Comprehensive Drug Abuse
Prevention and Control Act of 1970. (Title 21, United States Code,
Section 881(a)(1))" -- defining the charged offense as the
destruction of a controlled substance -- if the jury found, among
other facts, that "the property [destroyed] was a controlled
substance or equipment used for delivering controlled substances"
(emphasis added). The oral instructions were substantially
similar.
In other words, the jury instructions -- instructions
that the government itself proposed -- recognized that the
indictment was limited to the offense of destruction of property
defined by § 881(a)(1) but then instructed the jury that it could
find Johnson guilty of that offense if it found that Johnson had
destroyed property defined by § 881(a)(1) or § 881(a)(2). See
also Mathis v. United States, 136 S. Ct. 2243, 2257 (2016) ("[A]n
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indictment and jury instructions could indicate, by referencing
one alternative term to the exclusion of all others, that the
statute contains a list of elements, each one of which goes toward
a separate crime."). By broadening the grounds on which a jury
could convict Johnson of destruction of forfeitable property, the
District Court constructively amended the indictment and committed
a clear and obvious error.9
2.
We turn, then, to whether Johnson has met his burden to
show that his "substantial rights were prejudiced" by the clear or
obvious error. Gaccione, 977 F.3d at 81. The prejudice
requirement of plain-error review is not satisfied in this context
when, "given the evidence at trial, the jury could not have found
[the defendant] guilty of . . . the amended charge[] if it had not
also found he had [committed the indicted charge]." Brandao, 539
F.3d at 63. In that situation, "[any] error" could not have
affected whether the defendant had been convicted of the charged
offense rather than the uncharged one set forth in the jury
instructions. Id.
The government contends that is the situation here. It
does not dispute that the jury may have, due to the instruction,
9 The government does not dispute the necessary premise of
Johnson's challenge -- that § 881(a)(1) and § 881(a)(2) set forth
two distinct offenses rather than two means of committing the same
offense.
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determined that Johnson was guilty of destroying equipment, which
§ 881(a)(2) concerns. It simply contends that he was not
prejudiced thereby, because any finding of guilt on that basis
necessarily depended on the jury also finding him guilty of
destroying cocaine, which § 881(a)(1) concerns. In other words,
the government contends, Johnson's convictions necessarily
encompassed all the charged conduct, even accepting that the only
charged conduct deemed the predicate forfeitable property to be a
controlled substance. It thus follows, the government contends,
that Johnson cannot make the prejudice showing that he must.
To assess that contention, we must determine whether it
is reasonably probable that a jury instructed as this one was would
have determined, in finding Johnson guilty, that he destroyed
equipment associated with a controlled substance without also
finding that he destroyed a controlled substance. If that outcome
is reasonably probable, then Johnson would have met his burden as
to prejudice on plain error review. See id.; see also United
States v. Takesian, 945 F.3d 553, 566 (1st Cir. 2019).
Johnson contends that, on this record, the "instruction
guided the jury to convict by . . . finding that Johnson jettisoned
a spare engine, . . . and not necessarily . . . the destruction of
drugs." (emphasis omitted). He asserts that due to the
"contradict[ing]" nature of the evidence at trial that cocaine was
on the boat and the "undisputed and admitted" nature of Johnson's
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statement that he threw the engine overboard, "the jury might have
convicted based on something different than the destruction of
cocaine." (emphasis omitted).
The government responds that Johnson fails to account
for the requirement that the jury find that the "equipment"
jettisoned was "used for delivering controlled substances." It
argues that the only way a rational juror could have found the
required connection to drugs is if "the jury . . . [found] that
drugs were on the [boat]." We are not persuaded.
One reason for our reluctance to accept the government's
argument about prejudice is that this jury acquitted Johnson of
the cocaine possession and conspiracy to possess cocaine charges
that he faced. It is true that a jury's acquittal of a defendant
of an offense that is seemingly inconsistent with the jury's
verdict of guilt as to that same defendant as to another offense
has no bearing on whether the evidence is sufficient to support
the finding of guilt as to that other offense. See Powell, 469
U.S. at 65. But, we are hesitant to accept the notion that such
an acquittal adds nothing to a defendant's contention that it is
reasonably probable that a plainly erroneous jury instruction of
the sort at issue here caused prejudice because a jury found that
defendant guilty of the uncharged offense without also finding him
guilty of the charged one.
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Moreover, here, the jury learned of the statements in
which Johnson admitted that he had thrown overboard a spare engine
upon being espied by law enforcement from two different agents --
only one of whom recounted that Johnson had said anything that
indicated that cocaine had been tied to it. Indeed, the other
agent, Agent Borges, who testified that Johnson had made the
statement that the engine had been so jettisoned, did not indicate
that Johnson made any reference to cocaine. Yet, that agent was
the one who testified that Johnson had provided those answers in
response to a standardized set of questions that were asked of all
those aboard interdicted vessels before law enforcement boards
them. By contrast, the agent who testified that Johnson had not
only stated that he had thrown the engine overbroad but also had
tied cocaine to it beforehand, Agent Calderón, reported that
Johnson had so stated in an interrogation of him that occurred
ashore several hours after the boat had been interdicted. No notes
or transcript of that interrogation were introduced at trial. We
thus conclude that, on this record, there is a reasonable
probability that a juror would have weighed the testimony of the
two agents differently and surmised, accordingly, that the spare
engine had been jettisoned without also concluding that cocaine
was tied to it.
That conclusion is reinforced by the fact that there was
evidence in the record to indicate that the boat had been involved
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in drug smuggling apart from the evidence that could support a
finding that cocaine had been on the boat and jettisoned upon the
boat's interdiction. That evidence included the alert from the
drug canine indicating the possible presence of drug residue, the
boat's location on a route infamous for drug smuggling, testimony
that the boat was the type typically used for drug smuggling, and
the text messages suggesting that a transaction of some sort was
planned. It also included the testimony from Agents González and
Calderón about the use that cocaine smugglers have for spare
engines -- to destroy evidence of cocaine in the event of detection
by law enforcement.
Thus, there was evidence that the spare engine was
forfeitable property in its own right, regardless of whether these
defendants used the engine to destroy cocaine during the journey
that led to their interdiction. See, e.g., United States v.
Latorre-Cacho, 874 F.3d 299, 310-11 (1st Cir. 2017) (finding error
in the jury instructions to be prejudicial on plain error review
when there was not insubstantial evidence presented to the jury
that would have allowed it to reach a verdict based on the
erroneous instruction). As such, it would not have been
unreasonable for a juror to conclude that Johnson jettisoned the
spare engine to conceal it from law enforcement simply because of
its character as "equipment," forfeitable under § 881(a)(2) due to
its connection to drug smuggling.
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Accordingly, we conclude that, on this record, Johnson
has met his burden to show that it is reasonably probable that a
juror would have found that "the property [jettisoned] was . . .
equipment used for delivering controlled substances" without also
finding that controlled substances were jettisoned from the boat
during this specific voyage. See Takesian, 945 F.3d at 566 (“'A
reasonable probability' . . . is more than a mere possibility, but
less than a preponderance of the evidence." (quoting United States
v. Domínguez Benítez, 542 U.S. 74, 83 n.9 (2004))). As a result,
we hold that "the record could [have] 'rationally le[d] to a
contrary finding" and the prejudice prong of plain error is
satisfied. Brandao, 539 F.3d at 63 (quoting Neder v. United
States, 527 U.S. 1, 19 (1999)).
3.
That brings us to the fourth and final prong of plain
error, which requires that we consider whether the error "seriously
impaired" the "fairness, integrity, or public reputation of
judicial proceedings." Gaccione, 977 F.3d at 81 (citation
omitted). The purpose of the prohibition on constructive
amendments is "to preserve the defendant's Fifth Amendment right
to indictment by grand jury, to prevent re-prosecution for the
same offense in violation of the Sixth Amendment, and to protect
the defendant's Sixth Amendment right to be informed of the charges
against him." Brandao, 539 F.3d at 57.
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These rights are at the very core of our criminal justice
system. Undermining these principles by allowing a constructive
amendment would thus seriously impair the fairness and integrity
of the judicial proceeding.
We therefore conclude that it was plain error for the
District Court to constructively amend through its jury
instructions the indicted offense of destruction of a controlled
substance on a vessel. We consequently vacate Johnson's conviction
of Count 6.
B.
We now consider Johnson's constructive amendment
argument as it pertains to his conspiracy conviction. Here, too,
our review is for plain error. See Brandao, 539 F.3d at 60. We
again find the standard satisfied.
1.
By quoting directly from § 881(a)(1), the indictment
specified that the object of the charged conspiracy was the
destruction, while on a vessel, of forfeitable property as defined
by § 881(a)(1) -- "that is . . . a manufactured, distributed,
dispensed, acquired, or possessed controlled substance." The
District Court instructed the jury, however, that it could find
the defendant guilty if it found that Johnson conspired to destroy,
while on a vessel, "a controlled substance or equipment used for
delivering controlled substances." (emphasis added).
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Thus, for the reasons explained above, when the
indictment was limited to charging Johnson with conspiracy to
destroy forfeitable property in the form of a controlled substance,
the District Court could not then instruct the jury that it could
find Johnson guilty if it found that he conspired to destroy "a
controlled substance or equipment used for delivering controlled
substances." (emphasis added).
To be sure, we have allowed for some variation between
the means alleged in an indictment for a conspiracy offense and
what is presented to the jury at trial. But, here, the government
does not dispute the premise of Johnson's challenge -- that the
indictment alleged a conspiracy to commit one crime while the
instructions permitted the jury to render a guilty verdict upon
finding that the defendant conspired to commit a different crime
because the forefeitable property was an element of the crime
rather than a means of committing it. See, e.g., United States v.
Mueffelman, 470 F.3d 33, 38 (1st Cir. 2006) (explaining that the
conspiracy offense was not constructively amended because "the
titular crime was not altered"). Thus, we conclude that the
District Court committed clear or obvious error in its jury
instructions with respect to the conspiracy offense.
2.
There remain the questions of whether Johnson has met
his burden to show that this error "prejudiced" his "substantial
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rights" and it would "seriously impair[]" the "fairness,
integrity, or public reputation of judicial proceedings."
Gaccione, 977 F.3d at 81 (quoting Rodríguez-Milián, 820 F.3d at
32-33). We conclude that he has.
With respect to prejudice, we again rely on the test
articulated in Brandao and consider whether, "given the evidence
at trial, the jury could not have found [the defendant] guilty
of . . . the amended charge[] if it had not also found he had
[committed the indicted charge]." Brandao, 539 F.3d at 63. We
find that test satisfied.
The government's case against Johnson at trial as to
the conspiracy charge overlapped considerably with its case as to
the substantive offense of destruction of a controlled substance
while on a vessel. A juror could have credited Agent Borges's
testimony that Johnson purportedly told him that "they threw
overboard a small spare engine," found compelling the testimony
that drug smugglers typically have spare engines on their boats
that they use to weigh down any jettisoned cocaine, and believed
that the vessel in this case was likely used to transport cocaine
at some point but did not have cocaine on board on this trip given
that no cocaine was found. In addition, as to the element of
agreement, that same juror, having already credited Borges's
testimony that Johnsons said that "they threw overboard a small
spare engine," (emphasis added), could have also relied on Agent
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González's testimony that the engine of the type Borges's testimony
referred to would weigh fifty or sixty pounds, such that throwing
the engine overboard would be a two-man job. Thus, we conclude
that there was a reasonable probability that a juror could have
convicted Johnson of conspiring to jettison equipment used to
transport cocaine rather than of conspiring to jettison cocaine.
See Takesian, 945 F.3d at 566 (explaining that "'[a] reasonable
probability' . . . is more than a mere possibility, but less than
a preponderance of the evidence" (quoting Domínguez Benítez, 542
U.S. at 83 n.9)).
With respect to the fourth prong of plain error review,
we must determine whether the clear or obvious error "seriously
impaired" the "fairness, integrity, or public reputation of
judicial proceedings." Gaccione, 977 F.3d at 81. We conclude
that it did, for reasons similar to those that we set forth above
in finding this same prong satisfied in the context of the
substantive destruction-of-forfeitable-property offense. We
therefore conclude that it was plain error for the District Court
to constructively amend the indictment as to the conspiracy-todestroy-forfeitable-property offense.
Outcome: For the aforementioned reasons, we decline to reverse
either Johnson's or De Leon's convictions on sufficiency-of-theevidence grounds. We vacate De Leon's convictions of Counts 5 and
6 and the associated sentence because the admission of Johnson's
statements in their joint trial violated De Leon's rights under
the Confrontation Clause to the Federal Constitution. As to
Johnson, we vacate his convictions of Counts 5 and 6 and the
associated sentences because the District Court constructively
amended the indictment through its instructions to the jury.
Plaintiff's Experts:
Defendant's Experts:
Comments: