United States v. De La Cruz-Feliciano

• Decision Date: 13 May 2015
• Docket Number: Nos. 13–1593,13–1601.,s. 13–1593
• Citation: 786 F.3d 78
• Parties: UNITED STATES of America, Appellee, v. Junior H. De La CRUZ–FELICIANO, Sandri Rijo, Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

786 F.3d 78

UNITED STATES of America, Appellee

v.Junior H. De La CRUZ–FELICIANO, Sandri Rijo, Defendants, Appellants.

Nos. 13–1593

13–1601.

United States Court of Appeals, First Circuit.

May 13, 2015.

David J. Wenc, on brief, for appellant Junior H. De La Cruz–Feliciano.

Felicia H. Ellsworth, with whom Eric F. Fletcher, Howard M. Shapiro, and Wilmer Cutler Pickering Hale and Dorr LLP were on brief, for appellant Sandri Rijo.

Héctor E. Ramírez–Carbo, Assistant United States Attorney, with whom Rosa Emilia Rodríguez–Vélez, United States Attorney, Nelson Pérez–Sosa, Assistant United States Attorney, Chief, Appellate Division, and John A. Mathews II, Assistant United States Attorney, were on brief, for appellee.

Before LYNCH, Chief Judge, TORRUELLA and RIPPLE,^* Circuit Judges.

Opinion

RIPPLE, Circuit Judge.

Junior H. De La Cruz–Feliciano (“De La Cruz”) and Sandri Rijo were charged with, and convicted of, conspiring to possess with intent to distribute five kilograms of cocaine and aiding and abetting others to do the same. They now appeal their convictions, alleging various procedural and evidentiary errors. For the reasons set forth in this opinion, we affirm the judgments of the district court.

IBACKGROUND

This case involves a conspiracy to smuggle over 900 kilograms of cocaine into Santa Isabel, Puerto Rico. Eduardo Ubiera and Juan Baltazar orchestrated the operation. They recruited Francisco “Sandy” Navarro–Reyes (“Navarro”) and Gary Brito–González (“Brito”) to transport the cocaine, via a motorboat, from a “mother ship” at sea to Puerto Rico. The operation, however, did not run smoothly. While at sea, Navarro and Brito ran out of fuel and were unable to make it back to shore. At that point, according to government witnesses, Mr. De La Cruz was recruited to take another craft out to rendezvous with and refuel the stranded motorboat.

Mr. De La Cruz successfully delivered the fuel to the stranded motorboat. While still at sea, however, his own craft developed mechanical problems. Stranded at sea, Mr. De La Cruz and another individual aboard the vessel used a satellite phone to call for help. According to Freddy Altagracia–Medina (“Altagracia”), a codefendant, Mr. De La Cruz had requested the satellite phone before departing in order to communicate with the stranded motorboat. The United States Coast Guard found Mr. De La Cruz's vessel adrift approximately sixty miles from shore and rescued its crew. Coast Guard agents questioned the men about their satellite phone. According to Agent Christopher David Xirau, the men claimed to have tossed the phone overboard because it had become wet.

Meanwhile, traveling in their refueled motorboat, Navarro and Brito reached the shore with the drugs on January 26, 2012, three days after the planned delivery date. Awaiting their arrival were several individuals recruited to help unload the motorboat. Mr. Rijo was among this group. According to government witnesses, he originally planned to serve only as a lookout; however, due to the motorboat's late arrival, he instead ended up helping to unload the cocaine from the motorboat into a Nissan Armada for transport to San Juan.

Following a tip from a confidential informant, law enforcement anticipated the January 26 delivery and were surveilling the area throughout the night. They observed several individuals unloading the drugs from the motorboat into a vehicle, but were unable to visually identify any of those involved in the operation. Two other vehicles were present at the scene. Officers stopped the motorboat and three vehicles as they departed the beach. Ubiera and two other individuals were stopped in the Nissan Armada. Officers found over 900 kilograms of cocaine and three firearms in the vehicle. Navarro, Brito, and two other individuals were stopped in a second vehicle. Baltazar, Mr. Rijo, and one other person were stopped in a third vehicle. Three individuals were stopped in the motorboat. All thirteen men were arrested immediately. Officers arrested Mr. De La Cruz six days later.

On February 1, 2012, a grand jury returned an indictment, charging Mr. Rijo, Mr. De La Cruz, and their twelve codefendants with conspiring to possess with intent to distribute five kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii), and 846, and aiding and abetting the same, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii) and 18 U.S.C. § 2.¹ Everyone except Mr. Rijo and Mr. De La Cruz accepted plea agreements. After a trial, the jury found both Mr. Rijo and Mr. De La Cruz guilty as to all charges.² After sentencing, the defendants timely appealed.³

IIDISCUSSION

A. Mr. De La Cruz

On appeal, Mr. De La Cruz raises only one argument. It concerns the district court's questioning of Agent Xirau of the United States Coast Guard. At trial, the agent testified about the rescue of Mr. De La Cruz aboard the vessel that had gone adrift. Agent Xirau stated that he had asked Mr. De La Cruz and the other individual aboard the vessel about the satellite phone that they had used to call the Coast Guard. During the agent's testimony, on the fourth day of a six-day trial, the following exchange took place:

THE GOVERNMENT: I will ask you to clarify, when you refer to one of the two individuals on the boat, what specifically as to each individual they said, if anything?

AGENT XIRAU: Roger that.

THE GOVERNMENT: I was asking you about Junior De la Cruz, if upon you questioning him did he answer anything to you?

AGENT XIRAU: That was the only question that I remember him specifically giving me an answer.

THE GOVERNMENT: What about the other individual?

AGENT XIRAU: I don't remember his name. When I say they, I could mean either one or the other, I don't remember who at time who was the one that gave answers to the several questions we asked.

THE COURT: But were questions generally answered?

AGENT XIRAU: Yes, ma'am.

THE COURT: Any of them express a disagreement with what the other was saying at the time?

AGENT XIRAU: No, ma'am.^{[ 4 ]}

Defense counsel objected to the district court's questioning. In particular, counsel asserted that the questions conveyed that the district court was commenting on Mr. De La Cruz's silence when speaking with Coast Guard officials. The district court disagreed, stating that the witness “is not saying that [Mr. De La Cruz] did not answer, he says he does not remember who answered what.”⁵ Nevertheless, despite its disagreement with defense counsel's characterization of the exchange, the district court gave a cautionary instruction, stating that the jury was “not to draw any inferences from the questions that [the court] posed.”⁶ “My only intent here,” the district court explained, “was to assist in clarifying the situation. But once again I instruct you that there is no intent and ... no inference [should be] drawn from any type of question I have posed.”⁷

Following the district court's cautionary instruction, Agent Xirau then testified that Mr. De La Cruz and the other individual aboard the vessel had offered a strange explanation for no longer possessing the satellite phone that they had used to call for help. According to the agent, the men had told him that they threw the satellite phone overboard because it had become wet. The agent described this explanation as “odd.”⁸

Mr. De La Cruz now contends that the district court's questioning of Agent Xirau evinces judicial bias in violation of his right to due process of law. “When addressing allegations of judicial bias, we consider whether the comments were improper and, if so, whether the complaining party can show serious prejudice.” United States v. Ayala–Vazquez, 751 F.3d 1, 24 (1st Cir.2014) (internal quotation marks omitted). We assess statements in light of the record as a whole, not in isolation. Id.

In assessing this claim of judicial bias, our starting point is the basic principle that “there is nothing inherently improper about a judge posing questions at trial.” Id. Indeed, as we have previously observed, a court “has the prerogative, and at times the duty, of eliciting facts [it] deems necessary to the clear presentation of issues.” United States v. Rivera–Rodríguez, 761 F.3d 105, 111 (1st Cir.2014) (quoting United States v. Paz Uribe, 891 F.2d 396, 400 (1st Cir.1989) ); see also Fed.R.Evid. 614(b) (“The court may examine a witness regardless of who calls the witness.”). Such questioning is permissible “so long as [the court] preserves an attitude of impartiality and guards against giving the jury an impression that the court believes the defendant is guilty.”Rivera–Rodríguez, 761 F.3d at 111 (quoting Paz Uribe, 891 F.2d at 400–01 ). Notably, a question is not improper simply because it clarifies evidence to the disadvantage of the defendant. See United States v. Montas, 41 F.3d 775, 781 (1st Cir.1994). “[T]he rule concerning judicial interrogation is designed to prevent judges from conveying prejudicial messages to the jury. It is not concerned with the damaging truth that the questions might uncover.” United States v. Martin, 189 F.3d 547, 554 (7th Cir.1999).

Even if a comment is improper, however, a defendant also must show that the judicial intervention resulted in “serious prejudice.” Rivera–Rodríguez, 761 F.3d at 112. As we recently have observed, this burden is comparable to demonstrating prejudice under plain error review. See id. In other words, “improper judicial intervention ‘seriously prejudice [s]’ a defendant's case when we find that there is a reasonable probability that, but for the error, the verdict would have been different.” Id. The burden of establishing serious prejudice is more difficult where, as here, a court follows its comments with an appropriate cautionary instruction. See Ayala–Vazquez, 751 F.3d at 26 (noting that “within wide margins, the potential for prejudice stemming from improper testimony or comments can be satisfactorily dispelled by appropriate curative instructions” (quoting United States v. Pagán–Ferrer, 736 F.3d 573, 582 (1st Cir.2...