United States v. Cartagena

• Court: Court of Appeals for the First Circuit
• Decided: April 15, 2026
• Docket: 23-1871
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 23-1871

UNITED STATES,

Appellee,

v.

JOSÉ CARTAGENA, t/n José Ruben Cartagena-Rodríguez,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Pedro A. Delgado-Hernández, U.S. District Judge]

Before

Aframe, Hamilton,* and Thompson, Circuit Judges.

Luis Rafael Rivera-Rodriguez, with whom Luis Rafael Rivera Law Offices, was on brief, for appellant.

Harmeet K. Dhillon, Assistant Attorney General, with whom W. Stephen Muldrow, United States Attorney, Jesus A. Osete, Deputy Assistant Attorney General, and Jason S. Lee and Brant S. Levin, Appellate Attorneys, Civil Rights Division, U.S. Department of Justice, were on brief, for appellee.

* Of the United States Court of Appeals for the Seventh Circuit, sitting by designation. April 15, 2026

- 2 - HAMILTON, Circuit Judge. Four police officers

brutalized a teenage boy during and after an arrest. Then they

covered it up. Federal prosecutors brought civil rights and

obstruction charges, securing guilty pleas from three officers. A

jury convicted the fourth, Defendant José Cartagena, on all counts.

At trial, however, the Government introduced into evidence a

hearsay statement from the victim, who was never available to the

defense for cross-examination, contrary to the defendant's rights

under the Confrontation Clause of the Sixth Amendment. We vacate

his conviction on the one count for which that statement was

important to the Government's case. We affirm the other

convictions as supported by sufficient evidence and remand for

further proceedings consistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

We relate the facts in the light most favorable to the

verdicts. United States v. Buoi, 84 F.4th 31, 34 (1st Cir. 2023).

Because there are as many variations on the story as there were

people telling it, if not more, we try to avoid extraneous details.

In November 2014, Defendant Cartegena was an officer in

a police drug unit. He was on patrol in Canóvanas, Puerto Rico,

with fellow officers in the Carolina precinct's drug unit, Jimmy

Davis, Carlos Nieves, and Shylene Lopez. The officers encountered

two young men on the side of the road. Suspicious that a drug

deal was occurring, the officers tried to confront them. The

- 3 - youths fled, one on foot and the other, 17-year-old Calep Carvajal,

on a bicycle. Nieves shot Carvajal in the back. Cartagena gave

chase on foot, caught up to Carvajal, tackled him to the ground,

and handcuffed him. Count 1 of the indictment charged that

Cartagena violated 18 U.S.C. § 242 in the arrest by using unlawful

force in violation of the Fourth Amendment by pistol-whipping

Carvajal in the back of the head while he lay on the ground,

unarmed and not resisting.

The assaults continued as the officers put Carvajal in

the squad car, with his hands cuffed behind his back, to take him

to a police station. When Carvajal leaned forward to avoid "smacks

and hits" coming from Lopez and Nieves, who were seated beside

him, Cartagena turned around from the front passenger seat and, as

charged in Count 2 of the indictment, also under § 242, twice

struck Carvajal hard in the face.

After arriving at the station, Davis and Lopez took

Carvajal into an office where he was beaten some more. Meanwhile,

Cartagena and Nieves discussed how to cover up what they had done.

Each wanted the other to take responsibility for handling the

administrative side of the case. In the end, Cartagena wrote the

use-of-force report. As charged in Count 6 of the indictment under

18 U.S.C. § 1519, he falsified that report by intentionally

omitting that Carvajal had been shot, pistol-whipped, and

repeatedly punched. He wrote instead that the officers had given

- 4 - "verbal warnings." In the narrative section, Cartagena explained

Carvajal's injuries as having been caused by losing control of his

bicycle and falling to the ground.

Carvajal was charged with and later pled guilty to drug

possession in a Commonwealth court for a small bag of drugs found

near him. As charged in Count 7 of the indictment, 18 U.S.C.

§ 1512(b)(3), Cartagena obstructed justice by intentionally lying

to the juvenile prosecutor that Carvajal might falsely claim during

those proceedings that the officers assaulted him, even though his

injuries, Cartagena falsely assured the prosecutor, were

"exclusively" from falling off the bicycle.

Around a year later, Cartagena reached out to the Federal

Bureau of Investigation to report misconduct committed by his

colleagues in the Carolina drug unit, including the incident

involving Carvajal. Cartagena was not the first to report the

Carvajal incident and its cover-up to the FBI. The FBI had

apparently already located Carvajal and had him undergo a medical

examination in which he told a doctor that he had been shot and

that his head wound was caused by a blow from a pistol. Across a

series of four interviews, Cartagena told Agents Brian Doyle and

Ronnie Bobbitt that Nieves had shot Carvajal without

justification, that he himself had hit Carvajal in the back of the

head with his gun when the teenager tried to stand up as Cartagena

arrested him, that Davis struck Carvajal as he tried to apologize

- 5 - for fleeing just before being put in the car, and that he himself

had struck Carvajal in the face in the car when he leaned forward

to avoid blows from Lopez and Nieves.

In August 2016, a grand jury in the District of Puerto

Rico returned a seven-count indictment against Cartagena, Nieves,

Davis, and Lopez. Cartagena faced Counts 1, 2, 6, and 7 as set

forth above, while Nieves, Davis, and Lopez faced Counts 3, 4, and

5, respectively, each under § 242, for their assaults. The other

three defendants reached plea agreements. Cartagena also reached

a plea agreement but was later allowed to withdraw his plea. He

was convicted on all counts and sentenced to concurrent terms of

84 months in prison on each count. He appeals his convictions.

II. SUFFICIENCY OF THE EVIDENCE

Cartagena first challenges the sufficiency of the

evidence against him. Although he moved for a judgment of

acquittal at the close of the Government's case under Federal Rule

of Criminal Procedure 29(a), he failed to renew that motion after

the verdicts under Rule 29(c). Our review is therefore strictly

limited. Under these circumstances, we "may not intercede except

to prevent a clear or gross injustice." United States v.

Hernández-Román, 981 F.3d 138, 143 (1st Cir. 2020). No such

injustice exists if the evidence, viewed in the light most

favorable to the verdicts, is sufficient to support the

convictions. Id.; United States v. Van Horn, 277 F.3d 48, 54 (1st

- 6 - Cir. 2002). The Government asserts that Cartagena has not just

forfeited his sufficiency challenge but in fact waived it by

failing to argue the "clear or gross injustice" standard on appeal,

a point to which Cartagena has not responded. We nonetheless

choose to consider the challenge because we can so easily reject

it on the merits.

Counts 1 and 2 charged Cartagena with deprivation of

rights under color of law for pistol-whipping Carvajal during the

arrest and punching him during the car ride, respectively, in

violation of 18 U.S.C. § 242. The Government had to prove that

Cartagena: "1) acted under color of law, 2) deprived [Carvajal] of

a constitutional right, 3) acted willfully, and as a result,

4) [Carvajal] suffered bodily injury." See United States v.

Pagán-Ferrer, 736 F.3d 573, 591 n.8 (1st Cir. 2013). To violate

the Fourth Amendment, the use of force during an arrest must be

"unreasonable under the circumstances." Jennings v. Jones, 499

F.3d 2, 11 (1st Cir. 2007), citing Graham v. Connor, 490 U.S. 386,

397 (1989).

The substance of Cartagena's challenge on these counts

is that the Government's witnesses "could not establish with

certainty who actually used physical force against Calep

Carvajal." Certainty is not the standard. A sufficiency challenge

tests what a reasonable jury could have found beyond a reasonable

doubt from the evidence before it. United States v. Meises, 645

- 7 - F.3d 5, 13 (1st Cir. 2011). "The testimony of a single witness,"

even one with credibility problems, can be legally sufficient to

prove a fact. Id. at 12.

As to Count 1, Lopez testified that she saw Cartagena

hit Carvajal "with the butt of the firearm in the back of [his]

head" while he "wasn't doing anything" to resist arrest. In

addition, Agent Doyle testified that during their final interview,

Cartagena confessed to striking Carvajal with his firearm while

ordering him to stay on the ground and physically demonstrated his

actions. As to Count 2, Agent Doyle testified that Cartagena

confessed to giving Carvajal a "closed-hand palm strike" where his

"knuckles impacted the forehead" -- that is, a punch to the face

-- a strike so hard that Cartagena's hand was still in pain several

days later. Another officer, then the head of the Carolina drug

unit, testified similarly that Cartagena had told him several

months after the arrest that he had "hit [Carvajal] with his hand

on his head" and that the blow had caused him to "tilt[] to the

front." This testimony was legally sufficient to convict Cartagena

for pistol-whipping and punching Carvajal while he was in custody

and not resisting arrest.

Counts 6 and 7 charged Cartagena with, respectively,

filing a report containing false statements and omissions about

Carvajal's arrest in violation of 18 U.S.C. § 1519 and obstructing

justice by lying to the prosecutor in Carvajal's case in violation

- 8 - of 18 U.S.C. § 1512(b)(3). For Count 6, under § 1519, the

Government had to prove that Cartagena: (1) knowingly falsified

(2) a document (3) with the intent to impede, obstruct, or

influence the investigation of a matter within federal

jurisdiction. See United States v. Katakis, 800 F.3d 1017, 1023

(9th Cir. 2015) (describing elements); see also United States v.

Baugh, 588 F. Supp. 3d 140, 149 (D. Mass. 2022) ("The creation of

a document with a material omission is a falsification within the

meaning of § 1519."), citing United States v. Singh, 979 F.3d 697,

716 (9th Cir. 2020). For Count 7, under § 1512(b)(3), the

Government had to prove that Cartagena "knowingly and willfully

(1) engage[d] in misleading conduct toward another person,

(2) with the intent to hinder, delay or prevent the communication

of information to a federal official, (3) about the commission or

the possible commission of a federal crime." United States v.

Ronda, 455 F.3d 1273, 1284 (11th Cir. 2006).1

The substance of Cartagena's challenge here is his

intent. He does not dispute that he filed the false police report,

nor that he lied to the juvenile prosecutor. Rather, Cartagena

argues, no reasonable jury could have found that he intended to

obstruct justice because he was coerced through threats of violence

1 The underlying federal crimes for Counts 6 and 7 were Cartagena's own unlawful uses of force as charged in Counts 1 and 2, not Carvajal's drug charges, which were brought in Commonwealth court.

- 9 - from the other officers in his unit, per his own testimony, and

eventually reported them to federal authorities as a confidential

informant.

The coercion defense effectively concedes that

Cartagena's purpose in filing the false reports and lying to the

prosecutor was to carry out a cover-up, the only plausible reason

for which his fellow officers might have tried to coerce him.

Acting to save one's own skin does not negate a mens rea of

"knowing" or "willful" conduct. Rather, this contention is a

duress defense in disguise. See Dixon v. United States, 548 U.S.

1, 6 (2006) ("The duress defense . . . may excuse conduct that

would otherwise be punishable, but the existence of duress normally

does not controvert any of the elements of the offense itself.").

The court instructed the jury on duress (or

"justification"), and Cartagena does not argue that the

instruction was improper. "Duress is an affirmative defense

requiring proof that the defendant committed a crime as a result

of (1) an immediate threat of serious bodily injury or death

(2) that the defendant reasonably believed was true, (3) without

a reasonable opportunity to escape or frustrate the threat."

United States v. Diaz-Castro, 752 F.3d 101, 108 (1st Cir. 2014).

Here, the jury was entitled to reject the duress defense three

times over by: (a) discrediting Cartagena's testimony that the

threats were made at all; (b) disbelieving that any such threats

- 10 - were sufficiently imminent or severe; and/or (c) disbelieving that

a veteran police officer who is five feet, ten inches tall, weighs

255 pounds, bench presses 520 pounds, and is trained in the use of

firearms lacked a reasonable opportunity to protect himself.

Second, cooperating with federal authorities after a

crime is complete (here, nearly a year later) does not wipe the

slate clean. Neither § 1512(b)(3) nor § 1519 contains a

safe-harbor provision for remorseful violators. Cartagena

completed the offenses in Counts 6 and 7 as soon as he filed the

false report and lied to the prosecutor. His later cooperation

might have been relevant for sentencing, for example, but it did

not undermine the evidence of his guilt. Sufficient evidence

supported each of Cartagena's convictions.

III. THE CONFRONTATION CLAUSE

Cartagena also contends his Confrontation Clause rights

under the Sixth Amendment were violated when the Government

introduced into evidence a statement that Carvajal made during a

medical examination. Although Carvajal spoke to the FBI about ten

months after his arrest, the Government was unable to locate him

by the time of trial, and he did not testify. Because Cartagena

preserved the issue by objecting at trial, we review this challenge

de novo. See United States v. Ramos-González, 664 F.3d 1, 3–4

(1st Cir. 2011).

- 11 - We begin by reviewing the challenged testimony. The

Government's medical expert, Dr. Yocasta Brugal, testified to the

cause of Carvajal's head wound. She called it inconsistent with

falling off a bike and consistent with a blow from behind by a

blunt object, possibly a handgun, in accordance with the

Government's theory. Cartagena, by contrast, asserted at trial

that Officer Lopez had caused the wound by beating Carvajal at the

police station. Cartagena claimed he had merely "placed" his

handgun on the back of Carvajal's head, which he described as a

"touch[]," not a "strike." Dr. Brugal said on cross-examination

that the wound was also consistent with a blow from several other

types of blunt objects.

To arrive at her conclusion that Carvajal's head wound

was indeed caused by a blow from a handgun, Dr. Brugal spoke with

the prosecution and the FBI and examined photographs and medical

records from Carvajal's visit to the emergency room. She also

physically examined and spoke with Carvajal. Critical here, Dr.

Brugal testified that Carvajal told her the cause of his head

wound, a statement she relayed to the jury:

Q. And now moving on to the interview that you said that you had with Calep. Very briefly, if you could describe some of the information that he provided you that was relevant, very briefly, to your assessment as to how he received his injuries. A. Okay. From what I remember, right, he told me that he received a bullet wound in his back while he was riding a bicycle, and that

- 12 - he received a trauma on his head that he identified had been produced by the butt of a revolver.

Cartagena argues that this testimony violated his Sixth

Amendment right to confront the witnesses against him and that

this error was prejudicial to his conviction on Count 1 (but not

any other), meaning we must vacate that conviction and remand for

further proceedings. We agree.

A. CRAWFORD AND "CONTEXT"

The Confrontation Clause of the Sixth Amendment bars the

admission in a criminal trial of "testimonial statements of a

witness who did not appear at trial unless he was unavailable to

testify, and the defendant had had a prior opportunity for

cross-examination." Crawford v. Washington, 541 U.S. 36, 53–54

(2004). That rule "applies in full to forensic evidence,"

including testimonial out-of-court statements relied upon by a

testifying expert to support her in-court opinion. Smith v.

Arizona, 602 U.S. 779, 783, 803 (2024). A conviction obtained in

reliance on such evidence "must be vacated unless the government

demonstrates that the error was harmless beyond a reasonable

doubt." Ramos-González, 664 F.3d at 4.

"Crawford analysis generally requires a court to

consider two threshold issues: (1) whether the out-of-court

statement was hearsay, and (2) whether the out-of-court statement

was testimonial." United States v. Earle, 488 F.3d 537, 542 (1st

- 13 - Cir. 2007). The Government does not dispute that Carvajal's

statement was testimonial, so we address only whether it was

hearsay.

An out-of-court statement is hearsay if it is offered

for the truth of the matter asserted. Fed. R. Evid. 801(c). The

Confrontation Clause does not apply to statements offered for other

purposes. Crawford, 541 U.S. at 59–60 n.9, citing Tennessee v.

Street, 471 U.S. 409, 414 (1985). That path to admission does not

allow courts to accept reflexively the Government's assertion that

a statement is not offered for its truth but simply "provides

context for other admissible evidence." United States v. Maher,

454 F.3d 13, 22 (1st Cir. 2006). For example, a defendant's

admissions, tape-recorded by an informant, may be given context by

admitting the intervening lines of dialogue of the non-testifying

informant. United States v. Walter, 434 F.3d 30, 33–35 (1st Cir.

2006). But we have generally not allowed police to "narrate the

course of their investigations" by telling the jury who told them

what when. See Maher, 454 F.3d at 22–23, quoting United States v.

Silva, 380 F.3d 1018, 1020 (7th Cir. 2004). Too-ready deference

to the Government's stated reasons for offering evidence would "go

far toward abrogating" if not "eviscerate the constitutional right

to confront and cross-examine one's accusers." Id. at 23, quoting

Silva, 380 F.3d at 1020.

- 14 - On appeal, the Government minimizes Carvajal's statement

by claiming it was "referenced in passing only to show one of many

bases for the expert's opinion." The record belies that

characterization. The sidebar on Cartagena's objection takes up

nearly six full pages of the trial transcript. As soon as Dr.

Brugal testified that she had spoken to Carvajal and before she

revealed what he had said, Cartagena objected on Confrontation

Clause (and hearsay) grounds. The Government responded: "I just

want to establish that she interviewed Calep. I'm not interested

in back-dooring a whole lengthy description." Recall that Dr.

Brugal did not testify only that she had spoken to Carvajal. She

testified more fully that he said he was struck in the head with

a handgun. The Government went on to argue: "[A]n expert witness

is allowed to testify as to what formed the basis for her expert

opinion so the jury can analyze whether or not they believe her

opinion is sound or not." Indeed, an expert may rely on

inadmissible facts in forming an opinion and may even disclose

otherwise inadmissible facts to the jury "if their probative value

in helping the jury evaluate the opinion substantially outweighs

their prejudicial effect." Fed. R. Evid. 703.

The Government's reliance on Rule 703 defeats itself.

Carvajal's statement could have helped the jury evaluate Dr.

Brugal's opinions only if it were true. If instead Carvajal did

not remember how he received the head wound, or if he lied and it

- 15 - really was a blow from Officer Lopez or some other cause, then the

statement would have hindered the jury's ability to assess Dr.

Brugal's opinions because it would have given jurors false

confidence in her conclusions. The statement was offered for the

truth of the matter asserted and constituted hearsay. The

Government does not dispute that the statement was testimonial,

and Cartagena never had an opportunity to "test[]" the statement

"in the crucible of cross-examination." Crawford, 541 U.S. at 61.

The Confrontation Clause therefore barred its admission.

B. PREJUDICE

We must vacate Cartagena's conviction as to Count 1

unless the Government demonstrates that the Confrontation Clause

error was harmless beyond a reasonable doubt. Ramos-González, 664

F.3d at 6. "In evaluating harmlessness, we consider several

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 contradicting evidence; the extent to which

cross-examination was permitted; and the overall strength of the

case." Id. at 6–7, citing Earle, 488 F.3d at 546.

Contrary to the Government's assertions at oral

argument, the harmless-error inquiry required here is not the same

as asking whether the properly admitted evidence was legally

sufficient for a conviction. (In fact, we have already rejected

- 16 - Cartagena's sufficiency challenges, and we did so without relying

on Dr. Brugal's testimony at all.) A standard asking the court to

"simply imagine[] what the record would have shown" both "ignores

the significant prejudicial effect the error can have on a jury's

ability to evaluate fairly the remaining evidence" and would

"offer[] prosecutors no real incentive to comply with the

Constitution so long as any evidence not admitted in error is

legally sufficient to sustain a conviction." Jones v. Basinger,

635 F.3d 1030, 1053 (7th Cir. 2011). The standard is clear. The

harmless nature of the error must be clear beyond reasonable doubt.

Ramos-González, 664 F.3d at 6.

In this case, the harmlessness factors essentially merge

into one observation: Dr. Brugal was easily the most trustworthy

witness who testified against Cartagena as to Count 1. As the

Government framed the case at closing, the verdict on Count 1 would

depend not on whether the jury thought a pistol-whipping was

reasonable force but on whether it happened at all, a question

about which jurors had heard directly contradictory testimony:

Now, Calep's head injury. The defendant has to deny that. You see, if the defendant doesn't deny he pistol-whipped Calep, he knows it's a guaranteed conviction. He has to deny that. He gets on the witness stand and the most he's willing to say, the defendant, yes -- it was on cross -- my pistol touched his head. That's the closest he was willing to admit. Because that's a fact he cannot admit. He has to deny that on the witness stand.

- 17 - Recall that Cartagena had testified that he did not "strike"

Carvajal, and he suggested the wound came from Lopez having later

beaten the teenager with a baton at the station. By contrast,

Lopez testified she saw Cartajena do it, Agent Doyle testified

that Cartajena not only confessed but also demonstrated how he had

done it, and Dr. Brugal testified that Carvajal told her he was

struck with a handgun.

Dr. Brugal is the longtime Dean and President of the San

Juan Bautista School of Medicine and has won several awards for

her teaching and contributions to the island, including her work

on high-profile cases. She has, by her count, handled well over

fifteen thousand forensic cases and testified as an expert witness

"two to three times a week [for] 30 years."

The Government's other witnesses on Count 1 had serious

credibility problems. Less than a year after Carvajal's arrest,

Lopez was indicted on several unrelated charges for stealing drugs

and money from criminal suspects and lying to federal agents about

having done so. She was being held without bail, missing her

children, and facing ten years to life before she agreed to

cooperate with the Government and to testify against Cartagena in

this case, eventually reaching a plea agreement with a recommended

sentence of 57 to 71 months for those charges. She was also

indicted alongside Cartagena in this case, and at the time of

trial, she had pled guilty to and was awaiting sentencing on that

- 18 - charge. The jury could have believed Lopez anyway; a witness's

credibility issues will not win a sufficiency challenge. Meises,

645 F.3d at 12. Yet, based on Lopez's circumstances as disclosed

during trial, we have more than a few doubts about whether the

jury actually believed her. See United States v. Gomes, 177 F.3d

76, 81 (1st Cir. 1999) (noting "the cooperation agreement already

gave the jury an ample and more solid reason to question [the

witness's] testimony as the fruit of lenient treatment").

Agent Doyle also had credibility issues.2 The first is

that Doyle's testimony relied on his memory of an interview

conducted six years before trial and on confidential human source

reports written by himself and interview reports written by his

fellow agent, Bobbitt, both of which Doyle used to prepare for his

testimony. Indeed, Doyle agreed that "there are things from this

case that you don't recall," the reason being how long ago the

interviews took place. One report was used to refresh Doyle's

recollection on the stand; none were admitted into evidence. The

reports written by Bobbitt were examples of an "FD-302" (or a

"302"), "a form used by FBI agents to report or summarize

2 At oral argument, Cartagena's counsel identified Agent Doyle's chief credibility issue as the possibility that he became frustrated with Cartagena for not disclosing everything in the first interview. Our review of Cartagena's cross-examination of Doyle does not reveal any lines of questioning substantiating bias. Cartagena himself testified that, to his knowledge, Doyle had "nothing against [him], personally" and always treated him "respectfully" and "professionally."

- 19 - interviews that FBI agents conduct. It contains information from

the notes taken during the interview, typically by a non-primary,

or non-interviewing agent." Vidrine v. United States, 846 F. Supp.

2d 550, 583 n.74 (W.D. La. 2011). None of the interviews were

recorded, despite prosecutors having already decided to charge

Cartagena by the third interview.3

More than once, Doyle testified to the exact words used

in that conversation from over six years before. Most important

here, he testified that Cartagena told him he "struck" Carvajal

with the gun and that during the demonstration he (Doyle) asked

whether Cartagena "hit" Carvajal at the same time as or before

ordering him not to get up. The difference between that testimony

and Cartagena's testimony that the words he used were "placed" or

"touched" matters. The Fourth Amendment prohibits only

unreasonable uses of force. See Jennings, 499 F.3d at 11, citing

Graham, 490 U.S. at 397.

Reliance on interview reports to testify to the exact

words used by a witness six years earlier gives us reason to pause.

"[T]he 302 is often characterized as more of a summary of the

agent's memory and understanding of what a witness said, rather

3 The FBI has used a substantially similar procedure for completing 302s since the 1950s, although custodial interviews are now customarily recorded electronically as well. See United States v. Harrison, 524 F.2d 421, 425–26 (D.C. Cir. 1975); Dep't of Justice, New Department Policy Concerning Electronic Recording of Statements, 128 Harv. L. Rev. 1552, 1552 (2015).

- 20 - than a memorandum of what the witness actually said during the

interview." Vidrine, 846 F. Supp. 2d at 583 n.74 (emphasis in

original). That's why 302s are often held not to be discoverable

Jencks Act material as to statements made by the interviewee. They

record, generally speaking, not a "substantially verbatim recital

of an oral statement made by said witness." 18 U.S.C.

§ 3500(e)(2); e.g., United States v. Gonzalez-Melendez, 594 F.3d

28, 36 (1st Cir. 2010) (affirming denial of disclosure; noting the

"somewhat scattered manner of transcription" from scraps of paper

to 302 casts doubt on "substantially verbatim" nature of

statements); United States v. Derrick, 163 F.3d 799, 831 (4th Cir.

1998) ("The words recorded in the FBI 302 are the FBI agent's

characterization of what [the witness] said, not the words that

[the witness] actually spoke. FBI 302s . . . are not intended to

be verbatim recitations of the interviewee's statements."); see

also Palermo v. United States, 360 U.S. 343, 350 (1959) (noting

Jencks Act does not apply to "interpretations and impressions" and

does not "allow the defense to use statements to impeach a witness

which could not fairly be said to be the witness's own rather than

the product of the investigator's selections, interpretations, and

interpolations").

Another critical moment exposing Doyle's credibility

issues came when, over an objection by Cartagena, Doyle got off

the witness stand to demonstrate for the jury how Cartagena had

- 21 - demonstrated the arrest to him. To be clear, at trial, Doyle

played Cartagena while an FBI analyst played Doyle, who during the

original demonstration six years prior had been playing Carvajal

– like something out of Shakespeare.4

Agent Doyle had been lying prone with his hands behind

his back, could not recall how Cartagena was positioned over him,

and did not know what part of the gun hit Carvajal's head because

he (naturally) "couldn't see the parts of the gun in the back of

my own head." He nonetheless testified that the force Cartagena

had used "seemed hard." It is not clear how Doyle got that

impression. If Doyle could not see how Cartagena was holding the

gun during the earlier demonstration, one wonders how he could

have estimated the force Cartagena used unless, perhaps, he simply

relied on his fellow agent's characterization of the demonstration

instead of his own memory. That's of particular concern where,

quite understandably, neither Doyle during his testimony nor

Cartagena during the original demonstration actually delivered a

forceful blow.

The Government itself provided perhaps the best

confirmation that Dr. Brugal's testimony was the strongest

evidence of Cartagena's guilt as to Count 1 and that the error was

4 Cf. William Shakespeare, As You Like It act. III, sc. 2, ll. 408–09 (Rosalind, in disguise as Ganymede, tells Orlando she will pretend to be Rosalind to cure him of lovesickness).

- 22 - not harmless. In closing arguments, immediately after noting that

Cartagena had every incentive to lie when he denied pistol-whipping

Carvajal, the Government leaned hard on its best remaining witness:

But how do we know that [Cartagena's testimony] is not believable? How do we know that Calep was actually pistol-whipped by the defendant? Well, you know, there was one person, again, that the defense did not call into question their credibility. There was one witness. Dr. Brugal. And what did Dr. Brugal say when she examined Calep and questioned him on how he sustained his injuries? What did Calep say? One of his statements: I was shot, and I was hit in the head with a gun. I was hit in the head with a gun. That's what Calep told Dr. Brugal. That testimony is there, it's on the record. When she was examining him, he said that I was hit in the head with a gun. He did not say I was hit with a baton. He never mentioned a baton. He said I was hit in the head with a gun, after I was shot. That's huge.

R.595 at 60:25–61:13 (emphasis added). Indeed. The Confrontation

Clause error was not harmless beyond a reasonable doubt.

IV. CONCLUSION

We VACATE Cartagena's conviction as to Count 1, AFFIRM

as to Counts 2, 6, and 7, and REMAND for further proceedings

consistent with this opinion.

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