United States Court of Appeals For the First Circuit
No. 08-1702
UNITED STATES OF AMERICA,
Appellee,
v.
ALFREDO CABRERA-RIVERA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. José A. Fusté, U.S. District Judge]
Before
Torruella, Selya, and Dyk,* Circuit Judges.
Dean Stowers, for appellant. Julia M. Meconiates, 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.
September 25, 2009
* Of the Federal Circuit, sitting by designation. DYK, Circuit Judge. Following a jury trial, Alfredo
Cabrera-Rivera was convicted of three counts: (1) aiding and
abetting in the interference of commerce by threats or violence in
violation of 18 U.S.C. §§ 1951 and 2; (2) aiding and abetting in
the use, carriage, and discharge of a weapon during and in relation
to a crime of violence in violation of 18 U.S.C. §§
924(c)(1)(A)(iii) and 2; and (3) aiding and abetting in the
possession of a stolen firearm in violation of 18 U.S.C. §§ 922(j)
and 2. All of the counts were connected with the robbery of an
armored truck in Bayamón, Puerto Rico. On appeal, Cabrera-Rivera
contends that his convictions should be reversed because the
government failed to establish a nexus to interstate commerce as
required by the Hobbs Act, 18 U.S.C. § 1951. Cabrera-Rivera
contends alternatively that his convictions should be vacated and
a new trial awarded because the district court permitted the
government, over his objection, to use the out-of-court statements
of Cabrera-Rivera’s accused accomplices as evidence of his guilt.
Although we find that the government established the required nexus
to interstate commerce, we conclude that Cabrera-Rivera’s
Confrontation Clause rights were violated by the admission of
hearsay evidence. We accordingly vacate and remand.
I.
On August 10, 2006, a grand jury returned a three-count
joint indictment against Elías Cruz-Marrero, Jonathan Baez-
-2- Rodriguez, and appellant Cabrera-Rivera. Count one alleged that
the three men “aiding and abetting each other, did unlawfully
obstruct, delay and affect . . . commerce,” to wit, by robbing a
Loomis Fargo armored truck, in violation of 18 U.S.C. §§ 1951(a)
and 2.1 Counts two and three alleged related weapons charges under
18 U.S.C. §§ 924(c)(1)(A)(iii), 922(j), and 2. Cruz-Marrero’s case
was resolved by a guilty plea prior to jury selection, and jury
selection proceeded with Baez-Rodriguez and Cabrera-Rivera as co-
defendants. After jury selection, but before trial, Baez-
Rodriguez’s case was also resolved by a guilty plea, leaving only
Cabrera-Rivera to proceed to trial on January 28, 2008.
For purposes of gauging the sufficiency of the evidence,
we view the testimony presented at trial in the light most
favorable to the verdict. United States v. Capozzi, 347 F.3d 327,
328 (1st Cir. 2003). We first describe the evidence apart from the
disputed confessions of Cruz-Marrero and Baez-Rodriguez.
A robbery of a Loomis Fargo armored truck took place in
Bayamón, Puerto Rico, on July 26, 2006, at approximately 5:45 p.m.
Footage from a city surveillance camera system showed that a white
Acura appeared to be following the Loomis Fargo armored truck
1 For purposes of 18 U.S.C. § 1951, “commerce” is defined as “commerce within the District of Columbia, or any Territory or Possession of the United States; all commerce between any point in a State, Territory, Possession, or the District of Columbia and any point outside thereof; . . . and all other commerce over which the United States has jurisdiction.” 18 U.S.C. § 1951(b)(3).
-3- shortly before 5:30 p.m. and that at 5:33 the Acura was parked at
a Total gas station. The Acura’s license plate and occupants were
not visible on the surveillance footage. Cabrera-Rivera’s wife
testified that on the early evening of July 26, 2006, she and
Cabrera-Rivera drove to the Total gas station in Bayamón in a white
Acura. Cabrera-Rivera’s wife exited the car, and two men named
“Elías” and “Jonathan” arrived and got into the car with Cabrera-
Rivera. The three men then drove away.
Shortly after 5:30 p.m. that same day, employees at the
Taco Bell restaurant in the Plazoletta Canton Mall in Bayamón
noticed two suspicious men sitting at a table without consuming
food. An employee later identified one of the two men as her
neighbor, Elías Cruz-Marrero. At some point between 5:30 and 6:00,
two Loomis Fargo employees on an armored truck route (Ricardo Miró
and Jose Libran) made a stop at the Taco Bell to pick up the
restaurant’s cash deposit. It was raining as Libran, the driver,
backed the armored truck into the parking space nearest the entry
of the Taco Bell. Miró, the courier, left the rear compartment of
the truck and entered the restaurant to retrieve a $4,153 cash
deposit from the manager. After placing the cash from the
restaurant manager into his courier bag and commencing his return
to the truck, Miró paused at the door of the restaurant for several
seconds to wait for the pouring rain to subside.
-4- As he waited, the two men who had been sitting at the
table and a third man standing outside the door surrounded Miró.
Two Taco Bell employees later identified Cabrera-Rivera as the man
outside the door. One of the assailants hit Miró on the back of
the head, informed him he was being robbed, and took the bag
containing the cash. The assailants took Miró’s pistol from his
holster and forced him outside and into the back of the truck. The
men demanded that Miró open the truck’s vault; after Miró explained
that he did not have access to it, one of the assailants shot him
in the leg before leaving the truck. Miró later identified the man
who shot him as Jonathan Baez-Rodriguez. Upon realizing that the
assailants had exited the truck, Libran drove away together with
Miró.
Witnesses testified that three men were seen fleeing the
scene on foot. Although no witness testified to the presence of a
white Acura at the Taco Bell, a witness did testify that at
approximately 6:20 p.m., about half an hour after the robbery, two
persons in a white Acura with license plate number CDB 901 checked
into the Las Villas motel in Bayamón. It was established that
Cabrera-Rivera’s Acura bore license plate number “CDB 901.” The
witness who testified that the Acura was at the motel did not
identify either of the car’s two occupants. A police officer did
testify that, approximately two weeks after the robbery, he saw
Cabrera-Rivera driving in his white Acura.
-5- At trial the government sought to introduce (over
Cabrera-Rivera’s objection) various out-of-court statements
allegedly made by Cabrera-Rivera’s alleged accomplices, Baez-
Rodriguez and Cruz-Marrero. First, the government presented the
testimony of FBI special agent Carlos Torres, the case agent
assigned to the robbery investigation. Torres had interviewed
Cruz-Marrero after the robbery. The following exchange occurred
between the court, the government’s prosecutor (Mr. Bazan), and
defense counsel:
Mr. Bazan: Sir, at the time Elias [Cruz-Marrero] was arrested, was he advised of his rights?
The witness: Immediately after, yes, sir.
Defense counsel: Your Honor, we may have a Bruton objection.
. . . .
Mr. Bazan: What action did you take? First of all, did Mr. Elias admit to his participation in the robbery?
Defense counsel: Objection, Your Honor.
THE COURT: Overruled. He can tell us that.
The witness: Yes, he did.
Following the court’s ruling and a follow-up question by the court,
the government continued to question agent Torres about the
information obtained through Cruz-Marrero’s confession:
THE COURT: Okay. So Elias said he confessed before you basically.
-6- The witness: Yes, sir.
THE COURT: And I bet he gave you some additional information. He wants to know, without giving the specifics, what is it you do as a result of the other information he gives you.
The witness: We located the house of the second individual that was involved in the robbery. And, as a result of that information and information alone, we were able to obtain a search warrant and arrest warrant for the second individual, which was arrested on the same day hours after Elias had been arrested by us.
Mr. Bazan: And who was that second individual?
The witness: Jonathan Baez Rodriguez.
Mr. Bazan: Sir, what other location, if any, did you go to obtain evidence pursuant to this interview with Elias Cruz-Marrero?
The witness: We went to Las Villas Motel in Levittown area I believe. Either Levittown or the town adjacent to that. And we were able to retrieve a log that . . . the motel personnel prepared on a daily basis that shows a car with the description that matched the same car Elias has provided in interrogation entering the motel minutes after the robbery had taken place.
Mr. Bazan: Now, this information about the motel, did you take that information from Elias Cruz?
The witness: Yes, sir.
-7- Mr. Bazan: Now, of course . . . Elias Cruz-Marrero spoke to you. Did he admit his participation in the robbery?
The witness: Completely, yes, sir.
Mr. Bazan: And pursuant to that admission of his participation, did he——what else did he admit as to the part of the robbery? Did he receive a part of the robbery?
Mr. Bazan: What amount of money did Mr. Elias Cruz-Marrero receive as his participation in the robbery?
The witness: 11 hundred dollars, sir.
Another agent later testified that the subsequent search of
Jonathan Baez-Rodriguez’s house turned up the $1,100. Finally,
agent Pablo Rivera of the FBI task force took the stand and the
following exchange occurred concerning Jonathan Baez-Rodriguez:
Mr. Bazan: Did he agree to waive his rights and give you a statement?
The witness: Yes, he did, sir.
Mr. Bazan: Now, please pay attention to the question I'm going to ask you right now. Did he admit to participating in the robbery at Taco Bell on the 26th of July, 2006?
THE COURT: Overruled.
Defense counsel: Mr. Jonathan Baez is not here to——
THE COURT: It doesn’t matter. Whether he admitted or not, that’s all.
-8- The witness: Yes, he did, sir.
Mr. Bazan: And did he admit what, if any, was his participation in the robbery?
Mr. Bazan: Now, aside from being a look out at the Texaco gas station, according to him, how much, if any, did he admit to receiving as part of the proceeds of the robbery?
The witness: $300, sir.
At the close of the government’s evidence, Cabrera-Rivera
made a motion pursuant to Rule 29 of the Federal Rules of Criminal
Procedure for a judgment of acquittal, which was denied. On
January 30, 2008, the jury returned a verdict of guilty on each of
the three counts of the indictment. On May 1, 2008, the district
court sentenced Cabrera-Rivera to 183 months’ imprisonment.
Cabrera-Rivera timely appealed, and we have jurisdiction under 28
U.S.C. § 1291.
II.
A. Federal Jurisdiction Under 18 U.S.C § 1951(a)
On appeal, Cabrera-Rivera first urges that his conviction
should be reversed because the government failed to adduce
sufficient evidence that the robbery affected commerce, as required
by 18 U.S.C. § 1951(a). The parties dispute the appropriate
standard of review to be applied to Cabrera-Rivera’s challenge to
the sufficiency of the evidence on this element of the crime.
-9- Cabrera-Rivera contends that de novo review is required because he
properly preserved his objection, see United States v. Rodriguez-
Casiano, 425 F.3d 12, 14 (1st Cir. 2005), while the government
argues that Cabrera-Rivera did not properly raise this theory below
and thus our review is for only “plain error,” United States v.
Rivera-Rivera, 555 F.3d 277, 285 & n.7 (1st Cir. 2009). We need
not resolve this dispute, because Cabrera-Rivera’s challenge fails
under even the less deferential standard of review.
The Hobbs Act, under which Cabrera-Rivera was convicted,
provides that “[w]hoever in any way or degree obstructs, delays, or
affects commerce or the movement of any article or commodity in
commerce, by robbery or extortion . . . shall be fined . . . or
imprisoned . . . .” 18 U.S.C. § 1951(a) (emphasis added).2 To
prove that a robbery violated the provisions of the Hobbs Act, the
government need demonstrate only “a de minimis interference with
commerce.” Rivera-Rivera, 555 F.3d at 286 (quotation marks
omitted). When a business is the victim of a robbery, an effect on
interstate commerce may generally be demonstrated by showing “(1)
the business engaged in interstate commerce, and (2) that the
2 We note that in addition to interstate commerce, 18 U.S.C. § 1951(b)(3) also includes within the definition of “commerce” any “commerce within . . . any Territory or Possession of the United States.” (Emphasis added.) Because the government does not rely on the alternative definition of “commerce” in § 1951(b) and the general allegations of the indictment refer to “interstate commerce,” we need not decide whether that broader definition would be satisfied here.
-10- robbery either depleted the assets of the business . . . or
resulted in the business’s temporary or permanent closure.” Id.
(citing Rodriguez-Casiano, 425 F.3d at 15, and United States v.
Cruz-Rivera, 357 F.3d 10, 14 (1st Cir. 2004)).
There is no serious question but that Loomis Fargo, a
company engaged in the transportation of money “from the Federal
Reserve to places of business or vice versa,” was a business
engaged in interstate commerce. The evidence presented by the
government was also sufficient for the jury to conclude that the
robbery depleted Loomis Fargo’s assets. Loomis Fargo assumed the
loss of the more than $4,000 taken from its custody during the
robbery. Additional testimony established further effects on
commerce from the robbery: Loomis Fargo’s operations on the route
were disrupted, and other business clients did not receive services
that day due to the robbery. Taken as a whole, the government’s
evidence of the robbery’s effect on interstate commerce was
sufficient to support the jury’s verdict. See Capozzi, 347 F.3d at
335 (government need show only “a realistic probability of a de
minimis effect on interstate commerce”)(quotation marks
omitted)(citing United States v. Butt, 955 F.2d 77, 80 n. 2 (1st.
Cir. 1992)).
B. Confrontation Clause Objection
Cabrera-Rivera also contends that his convictions on all
three counts should be vacated and a new trial awarded because the
-11- government made improper use of out-of-court statements of his
alleged co-participants, Cruz-Marrero and Baez-Rodriguez, in
violation of Cabrera-Rivera’s Sixth Amendment confrontation right.3
The Confrontation Clause of the Sixth Amendment to the
Constitution provides that a criminal defendant “shall enjoy the
right . . . to be confronted with the witnesses against him . . .
.” U.S. Const. amend. VI. In Crawford v. Washington, the Supreme
Court made clear that the Confrontation Clause generally prohibits
the admission of testimonial out-of-court statements against a
criminal defendant. 541 U.S. 36, 68 (2004); see also United
States v. Earle, 488 F.3d 537, 542 (1st Cir. 2007) (“Crawford held
that the Confrontation Clause bars admission of testimonial hearsay
in a criminal case unless the declarant is unavailable and the
accused has had a prior opportunity for cross-examination.”).
There is no dispute that the out-of-court confessions of Elías
Cruz-Marrero and Jonathan Baez-Rodriguez, “taken by police officers
in the course of [custodial] interrogations,” are testimonial in
nature. Crawford, 541 U.S. at 52. Thus, unless the statements
fall within one of the narrow categories of out-of-court
3 Cabrera-Rivera contends, and the government apparently does not dispute, that a reversal of Cabrera-Rivera’s conviction on count one (interference with commerce by robbery under 18 U.S.C. § 1951) would in this case be sufficient to require reversal of the convictions on the two related weapons counts under 18 U.S.C. §§ 922(j) and 924(c)(1)(A) as well.
-12- testimonial statements that do not offend the Confrontation Clause,
admission of the statements at trial was improper.
This court has identified three circumstances where out-
of-court statements, though testimonial, may nevertheless properly
be admitted into evidence: where “(1) the statement is not hearsay
in that it is being admitted for a purpose other than establishing
the truth of the matter asserted; (2) the declarant testifies at
trial; or (3) the defendant had a prior opportunity to
cross-examine the declarant and the declarant is unavailable.”
United States v. Cruz-Diaz, 550 F.3d 169, 176 (1st Cir. 2008).
On appeal, the government relies solely upon the first
exception, contending that the statements of Cruz-Marrero and Baez-
Rodriguez (through the testimony of agents Torres and Rivera) are
not hearsay. Thus, the government argues, the introduction of the
confessions raises no Confrontation Clause problem because “the
statements were not admitted to prove the truth of the matter
asserted, but rather to put the investigation into context.”
Appellee’s Br. 16. As this court has previously noted “officers
should not be put in the misleading position of appearing to have
happened upon the scene” of the crime and “therefore should be
entitled to provide some explanation for their presence.” United
States v. Maher, 454 F.3d 13, 20 (1st Cir. 2006) (quoting 2 Broun
et al., McCormick on Evidence § 249, at 103 (5th ed. 1999)). The
government argues that it should equally be able to provide context
-13- for the discovery of other evidence, such as the registration card
obtained at the Las Villas motel. Appellee’s Br. 17.4
Although “[s]ometimes the rationale that an out-of-court
statement provides context for other admissible evidence will be
valid,” it is plainly not the case that every “statement by an
informant to police which sets context for the police
investigation” is admissible. Maher, 454 F.3d at 22. Such an
“impossibly overbroad” rule would allow the so-called “context”
exception to effectively eviscerate the protection against
testimonial hearsay provided by the Sixth Amendment and recognized
in Crawford. Id.; see also United States v. Silva, 380 F.3d 1018,
1020 (7th Cir. 2004) (“Allowing agents to narrate the course of
their investigations, and thus spread before juries damning
information that is not subject to cross-examination, would go far
toward abrogating the defendant’s rights under the sixth amendment
and the hearsay rule.”).
There are two basic problems with the government’s
context theory here. First, the out-of-court statements were used
4 See United States v. Jiménez, 419 F.3d 34, 44 (1st. Cir. 2005). See also Cruz-Diaz, 550 F.3d at 178 (“Out-of-court statements offered not to prove the truth of the matter asserted but merely to show context——such as a statement offered for the limited purpose of showing what effect the statement had on the listener——are not hearsay.”)(citing United States v. Bailey, 270 F.3d 83, 87(1st Cir. 2001); United States v. Walter, 434 F.3d 30, 34 (1st Cir. 2006) (informer’s out-of-court statements during taped “sting” admissible are not hearsay when necessary to provide context for defendant’s responsive admissions on tape).
-14- to emphasize the guilt of Cabrera-Rivera’s alleged accomplices,
rather than to provide context for the discovery of other
admissible evidence. A central contention of the government’s case
was that three men were involved in the robbery; the jury was aware
that Cruz-Marrero and Baez-Rodriguez were named with Cabrera-Rivera
in the indictment. The jury had additional knowledge that Baez-
Rodriguez was previously Cabrera-Rivera’s co-defendant, as jury
selection proceeded with both men to be tried jointly. In opening
statements, the government referred to Cruz-Marrero and Baez-
Rodriguez as Cabrera-Rivera’s “co-defendants.” The emphasis on
Cabrera-Rivera’s co-participants’ admissions of guilt directly
suggested that Cabrera-Rivera was guilty as well.
This improper purpose is particularly glaring with
respect to the testimony concerning the amount of money that Baez-
Rodriguez and Cruz-Marrero received. The government elicited from
the FBI agents not only the mere fact of confession by Cruz-Marrero
and Baez-Rodriguez, but also detailed testimony of how much money
each admitted to having received from the robbery. These
additional details——that Cruz-Marrero admitting to having received
$1,100 and Baez-Rodriguez $300——bore no relevance to the police
investigation of Cabrera-Rivera and added no necessary “context.”
Their only purpose was the improper purpose of demonstrating that
the two men had in fact participated in the robbery. The
government made considerable use of this evidence in its closing
-15- argument to directly suggest that Cruz-Marrero’s and Baez-
Rodriguez’s statements somehow established the guilt of Cabrera-
Rivera as well:
You will also remember that among the things that Elías Cruz-Marrero told the FBI is that his participation in the robbery was $1,100. So in order to prove this case beyond reasonable doubt, I brought evidence of a search warrant that was made at the home of Jonathan Baez.
And [lo] and behold, what amount of money did we find at his house? In different places of the house $1,100. The exact number the other aider and abetter, Elías, had also received as his participation in the robbery.
So you put that together, you make a determination of participation, of aiding and abetting, of being part and attempting to obtain a result by way of the robbery of an armored truck.
Such use of the unconfronted, out-of-court confessions of Cruz-
Marrero and Baez-Rodriguez contradicts the government’s contention
that the statements merely provided “context” for the government’s
investigation. See Crawford, 541 U.S. at 40, 66 (noting that
prosecution “relied on [the challenged hearsay] in closing, arguing
that it was ‘damning evidence’”).
Second, the government’s context theory with respect to
investigative leads has no relationship to the testimony concerning
Baez-Rodriguez’s confession; the government did not contend that
Baez-Rodriguez provided any investigative leads. The government
points out that Cruz-Marrero was the source of investigative leads,
but the government fails to show why the details as to Cruz-
-16- Marrero’s confession were necessary to explain the investigative
source. As this court has previously noted, the government could
simply have had the officers testify that they discovered the
evidence based on “information received.” Maher, 454 F.3d at 20
(quoting 2 Broun et al., McCormick on Evidence § 249, at 103 (5th
ed. 1999)). In any event, the government’s supposedly benign
purpose for introducing evidence of Cruz-Marrero’s out-of-court
statements is belied by the use that the government made of those
statements in closing argument. The government used Cruz-Marrero’s
statements concerning the motel to argue that one of the admitted
robbers, Cruz-Marrero, within minutes of the robbery had driven to
a motel in Cabrera-Rivera’s white Acura with Cabrera-Rivera. While
the government had independent evidence establishing that the Acura
had been driven to the motel shortly after the robbery by two men,
Cruz-Marrero’s out-of-court statements were the sole basis for the
government’s argument that the two men were Cruz-Marrero and
Cabrera-Rivera. Specifically, the government argued:
So [Cruz-Marrero] gets arrested. So he gets debriefed, and among the things he tells is that there was a point in time after the robbery that he went to a motel. Not any motel. Las Villas Motel.
And then you have the owner of Las Villas Motel who came to testify here. And she brought the record of her business, this card, this green card and this print out. What’s important about this green card? It has the license plate number of the white Acura. CDB 901.
When you deliberate, you can look at the pictures of the white Acura, which was found by the FBI last November in the house of [Cabrera-Rivera’s] sister-in-law. And
-17- you will notice the license plate, CDB 901. Same car, same Acura, same license plates, which went to Las Villas Motel in Levittown at 6:20 in the afternoon. When you deliberate, you just think why did they went to this motel from 20 minutes after the robbery was committed.
In rebuttal argument the government continued to make heavy use of
Cruz-Marrero’s confession to link Cabrera-Rivera to the robbery:
How did Cabrera get to the Taco Bell? In his white Acura. How else? How did he get to Las Villas Motel? In his white Acura.
There were two persons inside the car when he got to the Las Villas Motel. Well, those are facts of life. But among the inferences that you can make as judges of fact, legal inference, why would someone who just robbed an armored truck go to a motel? Among the legal inferences that you can make is they went to hide in there. They wanted to have an alibi.
But the evidence is there. It’s a cold, hard fact that they were in Las Villas Motel in the white Acura, same license plate, and this is information that the FBI obtained from a co-defendant, from [Elías] Cruz, that he had gone to Las Villas Motel.
The government’s argument in particular was that Cruz-Marrero’s
confession (the information “that the FBI obtained from a co-
defendant, from [Elías] Cruz”) established as “a cold, hard fact
that they [Cruz-Marrero and Cabrera-Rivera] were in Las Villas
Motel in [Cabrera-Rivera’s] white Acura” and went to hide there
because they wanted to have an alibi.
Because the testimonial out-of-court statements at issue
here were offered and used for the truth of the matters asserted,
their admission was improper.
-18- C. Waiver and Harmlessness
Nevertheless, the government contends that Cabrera-Rivera
forfeited his Crawford argument, and that even if the argument was
not forfeited, any error was harmless. Neither contention is
persuasive.
First, the government argues that Cabrera-Rivera
forfeited his Crawford argument because he did not specifically
object to the introduction of the out-of-court statements on
Crawford grounds, instead objecting only under Bruton v. United
States, 391 U.S. 123 (1968). The government is correct that, as a
general matter, an objection on one ground does not preserve
appellate review of another potential ground for objection, and
thus a Bruton objection does not preserve a Crawford objection.
United States v. Ziskind, 491 F.3d 10, 14 (1st Cir. 2007); see also
United States v. Mercado, 412 F.3d 243, 247 (1st Cir. 2005).
We disagree, however, with the government’s contention
that Cabrera-Rivera’s objections were insufficient to raise the
Crawford objection. To be sure, Cabrera-Rivera’s counsel
referenced Bruton the first time the government attempted to elicit
the statements from special agent Torres. When taken in the
context of the facts of the case, however, we think the better
reading of that objection is that it was in fact a short-hand
reference to an objection on confrontation grounds. Notably, at
the time the objections to the out-of-court statements were made,
-19- no co-defendant was on trial with Cabrera-Rivera. Accordingly,
making a literal Bruton objection would have made no sense. See,
e.g., Cruz-Diaz, 550 F.3d at 178 (Bruton error typically
“involv[es] the admission of a non-testifying codefendant’s
out-of-court statement during a joint trial for the purpose of
proving the truth of the matter asserted” (second emphasis added)).
In context it was obvious that counsel was objecting to Cabrera-
Rivera’s inability to confront the declarant. Counsel’s other
objections made clear that Cabrera-Rivera was objecting because of
his inability to cross-examine the alleged accomplices. See, e.g.,
Tr. Transcript (Jan. 29, 2008), at 121 (“Objection, Your
Honor . . . Mr. Jonathan Baez is not here to——”). We conclude that
Cabrera-Rivera’s objections were sufficient to preserve his
Crawford challenge.
Second, the government argues that even if the out-of-
court statements were improper, their admission and use amounted to
harmless violations of the Constitution. Even if evidence is
admitted in error, we may affirm a judgment of conviction where the
government has met “its burden of showing that any such error was
harmless beyond a reasonable doubt.” Earle, 488 F.3d at 545. In
evaluating harmlessness, we consider a number of factors, including
whether the challenged statements were central to the prosecution’s
case; whether the statements were merely cumulative of other
(properly admitted) evidence; the strength of corroborating or
-20- contradicting evidence; the extent to which cross-examination was
permitted; and the overall strength of the case. Id. at 546.
The government argues that there was alternative evidence
(eye witness testimony) that Cruz-Marrero and Baez-Rodriguez had
participated in the robbery. This other evidence does not,
however, render admission and use of those confessions harmless.
The Supreme Court in Bruton characterized extrajudicial statements
of a codefendant as being “powerfully incriminating” and
“devastating” to the defendant. 391 U.S. at 135-36. In Cruz v.
New York, the Supreme Court again recognized the devastating
potential of such evidence even if the jury is instructed not to
consider it against the defendant. 481 U.S. 186, 193 (1987). In
any event, as discussed above, the Cruz-Marrero and Baez-Rodriguez
confessions supplied information not available from other
witnesses.
The government also argues the other evidence against
Cabrera-Rivera was overwhelming. The overall strength of the
evidence against Cabrera-Rivera (absent the improperly admitted
statements of his alleged accomplices), while sufficient to support
a jury verdict of conviction, cannot fairly be characterized as
overwhelming. While there was evidence linking Cabrera-Rivera to
Cruz-Marrero and Baez-Rodriguez immediately before the robbery, the
eyewitness identifications of Cabrera-Rivera at the robbery scene
were less than compelling. Although two Taco Bell employees did
-21- identify Cabrera-Rivera from photo spreads, neither they nor the
Loomis Fargo employees identified Cabrera-Rivera as being one of
the assailants, and witnesses at trial did not even agree whether
two men or three had been involved in the robbery. The challenged
statements of Cabrera-Rivera’s alleged accomplices featured
centrally in the government’s closing arguments. The statements
were not merely cumulative of other evidence independently
establishing the same facts. In such circumstances, we are unable
to conclude with confidence that “[t]he government has proved
beyond a reasonable doubt that [Cabrera-Rivera] would have been
convicted even if the [statements] had not been admitted into
evidence.” Earle, 488 F.3d at 546.
III.
For the reasons set forth above, we vacate the judgment
of conviction and remand to the trial court for further
proceedings.
It is so ordered.
-22-