United States v. Ramos-González

• Decision Date: 09 December 2011
• Docket Number: No. 10–1318.,10–1318.
• Citation: 664 F.3d 1
• Parties: UNITED STATES of America, Appellee, v. Cruz Roberto RAMOS–GONZÁLEZ, a/k/a Robert Belleza, a/k/a Belleza, a/k/a El Galán, a/k/a Crucito, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

664 F.3d 1

UNITED STATES of America, Appellee,

v.Cruz Roberto RAMOS–GONZÁLEZ, a/k/a Robert Belleza, a/k/a Belleza, a/k/a El Galán, a/k/a Crucito, Defendant, Appellant.

No. 10–1318.

United States Court of Appeals, First Circuit.

Heard March 10, 2011.Decided Dec. 9, 2011.

Linda Backiel for appellant.

Dina Avila–Jimenez, Assistant United States Attorney with whom Rosa Emilia Rodriguez–Velez, United States Attorney, Nelson Pérez–Sosa, Assistant United States Attorney, Chief, Appellate Division and Luke Cass, Assistant United States Attorney, United States Attorney's Office, were on brief, for appellee.

Before LIPEZ, SILER ^* and HOWARD, Circuit Judges.HOWARD, Circuit Judge.

Defendant-appellant Cruz Roberto Ramos–González (“Ramos”) appeals his conviction for possession with intent to distribute in excess of 500 grams of cocaine. See 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B). Among other claims of error, Ramos contends that his Sixth Amendment right to confrontation was violated when the district court allowed a forensic chemist to testify regarding the results of a drug analysis that he did not conduct. Recent Confrontation Clause jurisprudence compels us to agree. For the reasons set forth below, we vacate the conviction and remand for a new trial consistent with this decision.

I. Background

In July 2002, while on routine traffic patrol in Caguas, Puerto Rico, Transit Police Officers Wanda Vélez–Mojica (“Vélez”) and Javier Reyes–Flores (“Reyes”) attempted to stop a pickup truck with unlawfully tinted windows. The driver refused to yield, and a chase ensued. Although the officers were able to forcibly stop the vehicle, the driver fled on foot and managed to elude capture. Upon closer inspection of the abandoned truck's interior, Vélez identified two plastic-wrapped blocks of a substance that she believed to be drugs, and the blocks were taken to the Puerto Rico Transit Police Station in Caguas (“Caguas station”) for analysis.

At the Caguas station, an agent from the Drug and Narcotics Division, Juan Santana Rodriguez, conducted a field test of the blocks. Neither Vélez nor Reyes participated in the field test, and there is no evidence that it was observed by any other officer. The two blocks were subsequently transferred to the Puerto Rico Forensic Science Institute (“the Institute”), where they purportedly tested positive for cocaine.

The Institute chemist who analyzed the seized substance, José Borrero, was initially listed as a prosecution witness; however, due to mental illness and related treatment, he was unavailable to testify regarding his analysis. Thus, three days before the trial commenced, the government amended its witness list to substitute Kelvin Morales–Colón (“Morales”), another chemist at the Institute, for Borrero. Despite the substitution, the witness description remained unchanged, identifying Morales as an expert who would testify “[b]ased on his specialized training and experience in the examination and analysis of controlled substances ... including the methodology used to examine the [drugs seized from the pickup], and the conclusions reached based on his expertise and examination of the substances.”

At trial, neither Vélez nor Reyes testified definitively as to the contents of the blocks. Vélez, who was at the Caguas station but not in the room when the blocks were analyzed, stated that she “believe[d]” they tested positive for cocaine. Reyes's only testimony that the seized blocks were cocaine was his 2002 statement memorializing the incident, which he read into the record. In the statement, he reported that Rodriguez had performed a field test on the evidence which yielded a positive result for cocaine. Reyes did not testify, however, that he was present when the field test was performed, and Rodriguez himself did not testify at trial.

The government then called Morales, as its expert witness, to testify regarding the composition of the seized substance. After outlining the Institute's intake and chain of custody procedures, Morales began to discuss the results of Borrero's test. Defense counsel objected on the basis that Morales had no personal knowledge of the underlying analysis, but the trial court determined that, based on Morales's experience and familiarity with official procedure ¹, he should be allowed to testify as to the veracity of this particular test. Morales in fact had no involvement in testing the seized substance, and was no longer working in Borrero's department when the testing occurred.

Morales confirmed that the evidence envelope entered by the government bore the signature of his colleague José Borrero, which he recognized from their years of working together. Based on the envelope's unique number, Morales explained that the analyzed substance was that which had been seized by Reyes and delivered to the Institute by Rodriguez, and that it was evidence in a matter involving Ramos. He verified that the information on the evidence envelope matched the results reported in Borrero's certificate of analysis, and when questioned about those results, provided the following testimony:

PROSECUTOR: Do you know the results of—I'm sorry. Looking at the envelope here, can you say what are the results of this test that was conducted?

MORALES: Both bricks were positive for cocaine, and had a combined weight of 2,116 grams, including its wrapping in the plastic.

No further evidence was introduced at trial to prove that the blocks seized from the truck contained cocaine.

Ramos was ultimately convicted by a jury and sentenced to 327 months in prison. This timely appeal ensued.

II. Analysis

A. Standard of Review

We first address the appropriate standard of review for the Sixth Amendment claim. The government argues that because Ramos did not specifically invoke the Sixth Amendment in his objection, he failed to preserve a cognizable Confrontation Clause challenge. See United States v. Mercado, 412 F.3d 243, 247 (1st Cir.2005) (“[A]n objection on one ground does not preserve appellate review of a different ground.”). Accordingly, the government contends that the district court's ruling should be reviewed for plain error. See United States v. Ziskind, 491 F.3d 10, 14 (1st Cir.2007). We disagree. Defense counsel alerted both the court and the government to the basis of his objection, asserting:

I originally thought [Morales] was the chemist who conducted the analysis of these controlled substances, but I believe [he is] not. It was Mr. Borrero. So I object to the fact that he has no personal knowledge of the test being conducted.

(emphasis added). In context, it was clear that counsel was objecting to the inability to confront the declarant. See United States v. Cabrera–Rivera, 583 F.3d 26, 36 (1st Cir.2009). His precise language, which may best be understood as a “short-hand reference to an objection on confrontation grounds,” sufficiently raised the Sixth Amendment issue, and we therefore review the challenge de novo. Id. If Ramos's Sixth Amendment rights have been violated, his conviction must be vacated unless the government demonstrates that the error was harmless beyond a reasonable doubt. See id. (citing United States v. Earle, 488 F.3d 537, 545 (1st Cir.2007)).

B. Confrontation Clause Challenge

Ramos contends that Morales's testimony regarding the substance of Borrero's report was barred by the Sixth Amendment, as construed in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and Melendez–Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). Given the evolving foundation upon which this claim rests, we first review briefly the current state of the Supreme Court's Confrontation Clause jurisprudence.

The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him....” U.S. Const. amend. VI. In Crawford, which effected a shift in Confrontation Clause doctrine, the Supreme Court established a new constitutional baseline: admitting “testimonial” statements ² of a witness not present at trial comports with the Sixth Amendment “only where the declarant is unavailable, and ... the defendant has had a prior opportunity to cross-examine [the declarant].” 541 U.S. at 59, 124 S.Ct. 1354. Subsequently, in Melendez–Diaz, the Court held that certificates of analysis, like the report prepared by Borrero here, are appropriately classified as testimonial statements for purposes of the Sixth Amendment. 129 S.Ct. at 2532. Thus, the admission of such a report, for the truth of its contents, necessitates accompanying live testimony by a competent witness. Id.

In a decision which post-dates the argument in this case, the Court further clarified in Bullcoming v. New Mexico, ––– U.S. ––––, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011), that where a certified forensic lab report is introduced as substantive evidence, the surrogate testimony of “a scientist who did not sign the certification or perform or observe the test reported in the certification” does not satisfy the accused's right to confrontation. Id. at 2710. Thus, where a testimonial certified forensic lab report is offered for its truth as evidence in a criminal prosecution, the accused has at least the right to confront the scientist who performed, observed, or supervised the analysis.

These Supreme Court cases are instructive, but they do not squarely address an issue that must be explored in this case: the extent to which the Sixth Amendment permits an expert witness to disclose the substance of a previously unadmitted forensic lab report that he did not draft. See Bullcoming, 131 S.Ct. at 2722 (Sotomayor, J., concurring) (“We would face a different question if asked to determine the constitutionality of allowing an expert witness to discuss others' testimonial statements if the ... statements were not themselves admitted as evidence.”). Indeed, the Court has granted certiorari in People v....