United States v. Peña-Santo

• Decision Date: 14 October 2015
• Docket Number: 13–2500,14–1040,Nos. 13–2155,14–1078.,s. 13–2155
• Citation: 809 F.3d 686
• Parties: UNITED STATES of America, Appellee, v. José PEÑA–SANTO, José Ramón Vicente–Arias, Jonathan Gil–Martínez, Manuel Liriano–De La Cruz, Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

809 F.3d 686

UNITED STATES of America, Appellee,

v.José PEÑA–SANTO, José Ramón Vicente–Arias, Jonathan Gil–Martínez, Manuel Liriano–De La Cruz, Defendants, Appellants.

Nos. 13–2155

13–2500

14–1040

14–1078.

United States Court of Appeals, First Circuit.

Oct. 14, 2015.

Carlos M. Sánchez–La Costa, for appellant Peña–Santo.

Barbara J. Sweeney, for appellant Vicente–Arias.

Kenneth Seiger, for appellant Gil–Martínez.

Leslie W. O'Brien, for appellant Liriano-de la Cruz.

Tiffany V. Monrose, Assistant United States Attorney, with whom Rosa Emilia Rodríguez–Vélez, United States Attorney, and Nelson Pérez–Sosa, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

Before TORRUELLA, SELYA, and DYK,^* Circuit Judges.

TORRUELLA, Circuit Judge.

Defendants–Appellants José Peña–Santo ("Peña–Santo"), José Ramón Vicente–Arias ("Vicente–Arias"), Jonathan Joel Gil–Martínez ("Gil–Martínez"), and Manuel Liriano de la Cruz ("Liriano") (collectively "Appellants") were jointly tried and convicted of conspiring to import cocaine and heroin into the United States, in violation of 21 U.S.C. §§ 952(a), 960, and 963, and conspiring to possess with intent to distribute cocaine and heroin on board a vessel subject to the jurisdiction of the United States, in violation of 46 U.S.C. §§ 70503(a)(1), 70504(b)(1), 70506(a). Peña–Santo and Liriano were additionally convicted of illegally reentering the United States, in violation of 8 U.S.C. § 1326(a)(2) and (b)(1). Appellants appeal their conspiracy convictions mainly on the grounds that improper expert testimony and the government's conduct warrant reversal of their convictions. They also assign error to the denial of their motions for judgments of acquittal. Finally, Gil–Martínez challenges the substantive reasonableness of his sentence. We have reviewed Appellants' claims carefully and do not find merit in any of them. Accordingly, we affirm.

I. Facts¹

On the night of April 12, 2012, Ryan Perry, a Customs and Border Patrol ("CBP") agent working as a camera operator and patrolling the waters from an aircraft, detected a target of interest with "lights out" seventeen nautical miles off the coast of Dorado, Puerto Rico, around 10:00 p.m. The target was a blue-colored wooden yola,² between twenty and twenty-five feet long, riding "very low" in the water, and carrying two motors and six fuel drums. A Maritime Patrol aircraft, along with the U.S. Coast Guard marine unit, the Puerto Rico Joint Forces of Rapid Action ("FURA," for its Spanish acronym), and a CBP helicopter, coordinated an intercept of the suspect vessel. When the Coast Guard marine unit approached the vessel, the individuals were moving "erratically" on the boat. Perry saw "objects being thrown from the yola." Another officer who joined the interception of the vessel, Luke Berguis from the Coast Guard, reported seeing "large, heavy bags being tossed over by the multiple crew members," as well as "small backpacks" and "smaller objects" that looked like cell phones and GPS units. Agent René Galarza, of U.S. Immigration and Customs Enforcement ("ICE"), after turning the helicopter's spotlight on the vessel also saw "individuals dumping what appeared to be bales."

At approximately 11:39 p.m., nearly four miles off the coast of Dorado, the Coast Guard marine unit intercepted the yola, which had six men on board, and ordered the men to raise their hands, which they did after some initial hesitance. FURA, along with the Coast Guard marine unit, later retrieved the objects that had been thrown into the water, which turned out to be "six heavy dark colored [gym] bags wrapped in duct tape" that each had a "block shape." Inside the bags were eight kilograms of 50% pure heroin packaged in eight egg shapes and 146.5 kilograms of 74.8% pure cocaine packaged in 131 brick shapes. The six men, identified as Peña–Santo, Vicente–Arias, Gil–Martínez, Liriano, Bonifacio Toribio–Almonte, and Alejandro Difot–Santos, all citizens of the Dominican Republic, were arrested.

A grand jury returned a superseding indictment charging the six men with conspiracy to import cocaine and heroin into the United States, in violation of 21 U.S.C. §§ 952(a), 960, and 963 (Count 1), and conspiracy to possess with intent to distribute cocaine and heroin on board a vessel subject to the jurisdiction of the United States, in violation of 46 U.S.C. §§ 70503(a)(1), 70504(b)(1), 70506(a) (Count 2). Peña–Santo and Liriano were also charged with illegally reentering the United States, in violation of 8 U.S.C. § 1326(a)(2), (b)(1), respectively (Counts 3 and 4).³ Difot–Santos and Toribio–Almonte pleaded guilty while Appellants were jointly tried.

At trial the government presented the testimony of Perry, Berghuis, Galarza, Andrew Resk, and Joel Candelario, all of whom participated in the interception of the yola on April 12, 2012. Berghuis testified that wooden boats with low profiles and no navigation lights, such as the yola used by Appellants, are harder to see and to pick up on radar. He further testified that Appellants' yola was painted blue on both the outside and the inside, which made it "very hard to see at night" from an "aerial aspect"; that it had excessive horsepower and fuel for its size; and that it did not have any fishing or other recreational gear on board. Instead, it carried multiple open condoms, which, based on his experience, are often used to keep dry small objects such as wallets and cell phones. Berghuis also identified Appellants in court as four of the six men on board the yola when it was intercepted and testified that he observed that more than one individual was needed to lift the bags which had been thrown overboard when the yola was approached by law enforcement.

The government also presented the testimony of Víctor Taboada, who was on patrol on the Coast Guard Cutter Cushing on the night of the interception; Abel Nasser, who works with ICE and the Department of Homeland Security; and Carmen Cacho ("Ms. Cacho"), a chemist employed by CBP. They testified about the type, purity, quantity, and weight of the narcotics recovered during the interception of the yola.

In addition, the government presented the testimony of Drug Enforcement Administration agent Christopher Conchin ("Agent Conchin"), who had experience in narcotic cases and international maritime interdictions. The district court qualified Agent Conchin as an expert witness and allowed him to testify as to the value, packaging, and mode of transportation of narcotics. Agent Conchin testified regarding how narcotics' street price depends on the place of sale. He also testified that drugs are usually wrapped in plastic and packaged in same-size bricks. As to the mode of transportation, Agent Conchin testified that drugs are typically transported in go-fast boats or yolas, which are usually painted blue to blend in with the water, have more than one motor (usually two or three), are either open or have a compartment to "put stuff underneath," and carry numerous gasoline drums that are switched off during the voyage. In addition, he testified that vessels transporting narcotics generally have four to six people on board and that each has a specific duty. He further testified that, in his experience, "in the cases that [he has] worked, ... individuals not connected with the trafficking of narcotics" have not been involved in the transportation.

After a four-day jury trial, Appellants were found guilty on all charges. Appellants moved for a judgment of acquittal pursuant to Fed.R.Crim.P. 29, which the district court denied.⁴ The district court sentenced Peña–Santo to 120 months in prison, Vicente–Arias to 130 months, Gil–Martínez to 192 months, and Liriano to 240 months. In addition, they were each sentenced to five years of supervised release. These timely appeals followed.

II. Discussion of Appellants' Claims

A. Expert Testimony

1. Background

The government intended Agent Conchin to testify as to "the quantity of the narcotics, the value of the narcotics, and ... to the fact that [Appellants] weren't just by happenstance" in the vessel. Appellants questioned the need for his testimony, arguing that the question before the jury of whether they were part of a conspiracy to distribute drugs did not require complex insight. The district court allowed the witness to testify only with respect to the value, packaging, and mode of transportation of drugs.

At trial, Agent Conchin testified that, in his experience, random people unconnected to drug trafficking would not be on board vessels with drugs. According to him,

[t]he people that are on those boats are there for one purpose, and that's to get the drugs to where they're going, and they're there for protection. They're there to switch out the hoses like I mentioned, because you can't do it with just [one] person. You have the captain who is the navigator to get you to where it's going, the exact point. You have a mechanic in case it breaks down and you have problems on the water. Everybody has a duty, a specific duty.

Appellants claim that the district court abused its discretion in allowing Agent Conchin to testify about the different roles of individuals on board vessels transporting drugs. They argue that this testimony should have been stricken from the record because it exceeded the scope of the topics allowed by the district court. In addition, they claim that Agent Conchin improperly identified the roles of the Appellants in the charged conspiracy without having personal knowledge of it and that he addressed the ultimate issue for the jury—whether Appellants were members of the conspiracy and possessed the intent to import and distribute narcotics—which is prohibited by Rule 704(b) of the Federal Rules of Evidence and constitutes reversible error pursuant to this court's holdings in United States v. Meises, 645 F.3d 5 (1st Cir.2011) ; United States v. Flores–De–Jesús, 569 F.3d 8 (1st Cir.2009) ; and United States v. Casas, 356 F.3d 104 (...