United States v. Johnson-Debel

17 F.4th 175

• Court: Court of Appeals for the First Circuit
• Decided: November 2, 2021
• Docket: 19-2046P
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 19-2046

UNITED STATES OF AMERICA,

Appellee,

v.

NOEL DE LEON-DE LA ROSA,

Defendant, Appellant.

No. 19-2067

JUAN BATISTA JOHNSON-DEBEL,

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

[Hon. Gustavo A. Gelpí, Jr., U.S. District Judge]

Before

Kayatta and Barron, Circuit Judges, and O'Toole,* District Judge.

* Of the District of Massachusetts, sitting by designation. Fernando O. Zambrana-Avilés, with whom Colon Serrano Zambrana, LLC was on brief, for appellant Noel de Leon-De la Rosa. Kendys Pimentel-Soto, with whom Kendys Pimentel-Soto Law Office LLC was on brief, for appellant Juan Batista Johnson-Debel. Mariana E. Bauzá-Almonte, Chief Appellate Division Attorney for the Department of Justice, with whom Gregory B. Conner, Assistant United States Attorney, and W. Stephen Muldrow, United States Attorney were on brief, for appellee.

November 2, 2021 BARRON, Circuit Judge. Noel de Leon-De la Rosa ("De

Leon") and Juan Batista Johnson-Debel ("Johnson") challenge their

respective federal convictions in the District of Puerto Rico, as

well as the resulting sentences. Those convictions are for

destruction of a controlled substance while on a vessel, and

conspiracy to destroy a controlled substance while on a vessel.

Their prosecutions followed their indictment for these offenses

-- as well as for others for which they also were convicted but

that are not at issue here -- after U.S. Customs and Border Patrol

("CBP") agents in April 2017 interdicted off the coast of Puerto

Rico the small boat that De Leon and Johnson were on at the time.

We vacate the convictions that Johnson and De Leon each challenge,

though we vacate Johnson's for different reasons than those that

lead us to vacate De Leon's.

I.

A.

The following facts are not in dispute. On the night of

April 20, 2017, De Leon and Johnson were on a small boat about

thirty miles off the northern coast of Puerto Rico, traveling

southeast. The boat had no running lights.

At around 9:00 p.m., a CBP agent patrolling those waters

by airplane detected the boat on the plane's forward-looking

infrared camera. Suspecting drug smuggling, the agent called the

- 3 - Coast Guard and the CPB's marine interdiction unit was dispatched

to the boat's location.

The unit interdicted the boat just before midnight.

After boarding the vessel, members of the unit determined that

there was no contraband on board. CBP agents from the unit then

detained Johnson and De Leon and brought the two of them -- along

with the boat -- to the CBP facility in San Juan, Puerto Rico.

Once onshore at the CBP facility, at around 2:00 a.m.,

Johnson was interviewed by Francisco Calderón, an agent with U.S.

Homeland Security Investigations. Calderón read Johnson the

warnings required under Miranda v. Arizona, 384 U.S. 436 (1966),1

and Johnson then answered questions that Calderón put to him about

what had transpired aboard the boat. Johnson had also been

interviewed immediately after the interdiction by Agent Miguel

Borges.

The following morning, CBP Canine Enforcement Officer

Adriel Castillo brought Honzo, a drug-detection dog, to inspect

the boat. As Castillo walked the dog around the boat, Honzo

"alerted" to the "[p]ossible contamination of narcotics."

That same day, Maritime Law Enforcement Specialist

Matthew Tommie from the U.S. Coast Guard used a machine called an

1 Johnson filed a motion to suppress his statements below but has not renewed any Miranda claims on appeal.

- 4 - Ionscan 400B to test swabs taken from the vessel. The scan

revealed no trace residue of narcotics.

B.

Johnson and De Leon were indicted in the District of

Puerto Rico on May 18, 2017, in an eight-count indictment. The

indictment set forth the following charges against each defendant:

Count One[:] Possession with the intent to distribute a controlled substance on board a vessel subject to the jurisdiction of the United States, aiding and abetting . . . in violation of [46 U.S.C. § 70503(a)(1) and 18 U.S.C. § 2].

Count Two[:] Conspiracy to possess with the intent to distribute a controlled substance on board a vessel subject to the jurisdiction of the United States . . . in violation of [46 U.S.C. §§ 70503(a)(1), 70506(b)].

Count Three[:] Possession with the intent to distribute a controlled substance . . . in violation of [21 U.S.C. § 841 and 18 U.S.C. § 2].

Count Four[:] Conspiracy to possess with the intent to distribute a controlled substance . . . in violation of [21 U.S.C. §§ 841, 846].

Count Five[:] Conspiracy to destroy property subject to forfeiture under [s]ection 511(a) of the Comprehensive Drug Abuse Prevention Act of 1970 . . . that is [a] . . . controlled substance [while on a vessel]. . . in violation of [21 U.S.C. § 881(a) and 46 U.S.C. §§ 70503(a)(2), 70504(b)(1), 70506(d)].

Count Six[:] Destruction of property subject to forfeiture under [s]ection 511(a) of the Comprehensive Drug Abuse Prevention Act of 1970 . . . that is . . . [a] controlled substance [while on a vessel] . . . in violation of [21 U.S.C. § 881(a), 46 U.S.C. §§ 70503(a)(2), 70504(b)(1), 70506(d), and 18 U.S.C. § 2].

- 5 - The indictment also set forth two other counts. Count

Seven charged Johnson alone with improper entry by a noncitizen in

violation of 8 U.S.C. § 1325(a)(1). Count Eight charged De Leon

alone with illegal reentry of a removed noncitizen in violation of

8 U.S.C. § 1326(a) and (b)(1).

Before trial, De Leon moved for severance. He did so on

the ground that Johnson's statements to Calderón and Borges

following the interdiction, if admitted in a joint trial with him,

would violate De Leon's rights under the Confrontation Clause of

the Sixth Amendment of the U.S. Constitution as interpreted in

Bruton v. United States, 391 U.S. 123 (1968). The District Court

denied the motion. De Leon moved for reconsideration, which the

District Court denied.

De Leon then renewed his request at trial to exclude

Johnson's statements to Agent Calderón based on Bruton. The

District Court once again denied the request, explaining that "so

long as [the confession] is sanitized then it's admissible." In

charging the jury, the District Court instructed that the

"statements . . . made by . . . Johnson [to Calderón]. . . can

only be considered as evidence against [Johnson]" and "cannot be

considered as evidence against [De Leon]."

At both the conclusion of the government's case and the

close of evidence, the defendants argued that judgments of

acquittal should be entered as to Counts One through Six for each

- 6 - defendant because the government had failed to prove its case

beyond a reasonable doubt. The District Court denied the motions.

The jury convicted Johnson and De Leon separately on

Counts Seven and Eight, which set forth their respective

immigration charges, and Counts Five and Six, which set forth their

respective charges for destruction of property subject to

forfeiture while aboard a vessel and conspiracy to commit the same

offense. The jury acquitted both defendants of Counts One through

Four, which set forth charges against each of them relating to

possession with the intent to distribute a controlled substance.

The jury verdicts entered on June 24, 2019.

Johnson and De Leon filed written motions for judgments

of acquittal under Rule 29 of the Federal Rules of Criminal

Procedure as to Counts Five and Six. The motions were denied.

The case proceeded to sentencing. Johnson was sentenced

to fifty-seven months of imprisonment on his convictions for Counts

Five and Six and three months' for his conviction on Count Seven,

to be served consecutively for a total sentence of sixty months'.

De Leon was sentenced to seventy-two months of imprisonment on his

convictions on Counts Five and Six and twelve months' for his

conviction on Count Eight, to be served concurrently.

Judgment entered against each defendant on September 25,

2019, and each filed a timely notice of appeal. See Fed. R. App.

P. 4(b)(1)(A)(I). We have jurisdiction over their appeals of their

- 7 - convictions under 28 U.S.C. § 1291 and over their appeals of their

sentences under 18 U.S.C. § 3742(a).

II.

We begin with the defendants' challenges to the District

Court's denial of their motions for judgments of acquittal as to

their convictions on Counts Five and Six. As we have explained,

the latter count was for destruction of property subject to

forfeiture while on a vessel, and the former count was for

conspiracy to commit the same. See United States v. Godin, 534

F.3d 51, 61 (1st Cir. 2008). De Leon and Johnson each contends

that the District Court erred because the evidence in the record

does not suffice to support a finding of guilt beyond a reasonable

doubt as to either offense.

Our review of the defendants' sufficiency-of-the-

evidence challenges is de novo. See United States v. Burgos-

Montes, 786 F.3d 92, 112 (1st Cir. 2015). In undertaking this

review, we must consider the evidence "in the light most favorable

to the verdict," United States v. Stewart-Carrasquillo, 997 F.3d

408, 417 (1st Cir. 2021), mindful that "both direct and

circumstantial evidence, whether alone or in concert, can sustain

a conviction," United States v. Clough, 978 F.3d 810, 816 (1st

Cir. 2020).

We have cautioned that in reviewing a sufficiency

challenge we may not "stack inference upon inference in order to

- 8 - uphold the jury's verdict." United States v. Guzman-Ortiz, 975

F.3d 43, 55 (1st Cir. 2020) (quoting United States v. Valerio, 48

F.3d 58, 64 (1st Cir. 1995). At the same time, we also have

explained that we "may not pursue a divide and conquer strategy,"

id. (internal quotation marks omitted), that would isolate each

piece of evidence without giving due weight to the picture that it

helps to create when the evidence is considered as a whole.

Instead, we must consider the evidence "in its totality," id. at

54, as the ultimate question that we must answer "is not whether

a reasonable jury could have acquitted the defendant, but rather

whether a reasonable jury 'could have found that the government

proved each element of the crime beyond a reasonable doubt.'"

Stewart-Carrasquillo, 997 F.3d at 418 (quoting United States v.

Paz-Alvarez, 799 F.3d 12, 25 (1st Cir. 2015)).

We agree with the government that, under the standards

just described, there is no merit to the sufficiency challenges

before us. To see why, it first helps to provide some more

background about the government's case and the nature of the issues

that are in dispute in relation to the defendants' sufficiency

challenges. We then will turn to the specific arguments that each

defendant makes about why the evidence is too thin, starting with

Johnson's.

- 9 - A.

The indictment charged De Leon and Johnson each with

violating 46 U.S.C. § 70503(a)(2) and 18 U.S.C. § 2 by destroying

property subject to forfeiture as defined by 21 U.S.C. § 881(a),

as well as conspiring to do the same. Section 881(a), in turn,

provides that certain categories of property are subject to

forfeiture, including "[a]ll controlled substances which have been

manufactured, distributed, dispensed, or acquired in violation of

[the Act]", id. § 881(a)(1), and "[a]ll raw materials, products,

and equipment of any kind which are used, or intended for use, in

manufacturing, compounding, processing, delivering, importing, or

exporting any controlled substance," id. § 881(a)(2).

The indictment specified the property subject to

forfeiture for each defendant as "a manufactured, distributed,

dispensed, acquired, or possessed controlled substance." Id.

§ 881(a)(1). The indictment did not identify "equipment of any

kind which are used, or intended for use, in manufacturing,

compounding, processing, delivering, importing, or exporting any

controlled substance" as constituting the predicate property

subject to forfeiture for any of the charges against either De

Leon or Johnson. Id. § 881(a)(2).

Notwithstanding these features of the indictment, the

District Court instructed the jury as follows as to what it would

need to find to return a verdict of guilty for the charges

- 10 - underlying the convictions at issue here. With respect to the

charge for the underlying substantive offense, the District Court

instructed, the jury would have to find beyond a reasonable doubt

that: (1) "[O]n the date charged, [the] defendants were on board

the vessel in this case and, at the time, destroyed property that

was on board the vessel;" (2) "the property was a controlled

substance or equipment used for delivering controlled substances"

(emphasis added); and (3) "they did so knowingly and

intentionally." With respect to the charge for the underlying

conspiracy offense, the District Court instructed, the jury would

have to find the same with the one difference being that the jury

would have to find beyond a reasonable doubt that the defendant

"conspired to destroy property [subject to forfeiture] that was on

board the vessel" rather than that the defendant had in fact

destroyed it.

The government does not dispute, however, the

defendants' contention that, despite the instructions, the

forfeitable property that serves as the predicate for the

underlying convictions is a "controlled substance" and not

"equipment used for delivering controlled substances." The

government thus does not contend that the defendants' convictions

may be upheld if the evidence suffices to show beyond a reasonable

doubt that each destroyed -- and conspired to destroy -- such

equipment rather than a controlled substance. In this respect,

- 11 - the government does not dispute the defendants' contention that

the evidence must suffice to show beyond a reasonable doubt that

the forfeitable property that each defendant destroyed -- and

conspired to destroy -- was a controlled substance.

Nonetheless, the government contends that the defendants

are wrong to assert -- insofar as they do -- that their acquittals

of the counts that charge each of them with the cocaine possession

offenses in and of themselves require us to sustain their

sufficiency challenges to the convictions for the distinct

offenses that they challenge here. We agree. A conviction on one

count may be upheld against a sufficiency challenge, even though

it is seemingly inconsistent with that jury's verdict of acquittal

on another count. See Dunn v. United States, 284 U.S. 390, 393

(1932) ("Consistency in the verdict is not necessary. Each count

in an indictment is regarded as if it was a separate indictment.");

see also United States v. Powell, 469 U.S. 57, 64-65 (1984)

(confirming that Dunn's rule remains good law).

The critical question for us, then, is whether, for each

defendant, the evidence suffices to show beyond a reasonable doubt

that each of them agreed to jettison cocaine from the boat and

that each of them did so. For, if the evidence so suffices, then

the defendants' challenges to the District Court's denial of their

motions for acquittal necessarily fail.

- 12 - B.

Johnson contends that the evidence does not suffice to

support his conviction for either the substantive or the conspiracy

variant of the offense because "the only evidence showing

destruction of cocaine was [his out-of-court confession]," and

there was too little independent proof that tends to establish

that the crimes to which he admitted in that confession occurred.

He relies for this proposition on our decision in United States v.

Tanco-Baez, 942 F.3d 7 (1st Cir. 2019).

In Tanco-Baez, we explained why a defendant's out-of-

court confession alone, due to a specific concern about its

reliability, cannot be the sole basis to support a conviction.

That concern arises when there is no substantial independent

evidence in the record that the crime that the confession

encompasses in fact occurred. Thus, we explained in Tanco-Baez,

such a confession must be supported by "substantial" independent

evidence that "tends to establish" that the crime admitted in the

confession in fact occurred in order for that confession to be

given weight in assessing whether the evidence as a whole suffices

to support the conviction beyond a reasonable doubt. Id. at 20

(quoting Opper v. United States, 348 U.S. 84, 93 (1954)).

We emphasized in Tanco-Baez, however, that the kind of

evidence that could serve this corroborating function need not be

strong enough in its own right to support the conviction. Id.

- 13 - Rather, such evidence need be strong enough only to provide the

kind of support for the confession's reliability that, despite the

out-of-court circumstances in which it is claimed to have been

made, would permit it to be deemed reliable when considered along

with the evidence in the record as a whole. Id. Thus, in the

event such corroborating evidence is present, the confession may

be relied upon to support the conviction against the sufficiency

challenge. Id.

Against this legal backdrop, we begin our analysis by

considering the evidence of what Johnson concedes constitutes the

out-of-court confession by him to the crimes for which he was

convicted. That confession was introduced at trial through the

testimony of the law enforcement agents to whom Johnson spoke soon

after the interdiction of the boat.

First, Agent Calderón testified, in response to

questions from the prosecutor, about the statements that Johnson

made to him. Specifically, he testified as follows in that regard:

Q: And what, if anything, did [Johnson] say about the contents of the boat[] he left on? A: He stated that once he was in the boat, eso, referring to drugs[,] were in the boat. Q: And he used that word specifically, eso? A: Eso, correct. Q: And when have you heard that in your career? A: In previous drug trafficking investigations where they will refer to drugs as eso. Q: Does eso refer to a particular type of drug or just drugs in general? A: Mostly cocaine as that was smuggled over in this . . . area of responsibility.

- 14 - Q: And what, if anything, did Defendant Johnson say about what happened when law enforcement approached the vessel on which he was? A: He stated that when he saw that he was going to be interdicted by the marine officers . . . he grabbed the small engine [to] which the bales were tied up, the doce piezas [was] the term that he used, called pieces, within two bales. Each one has six pieces, they were tied up to a rope to the small engine and he jettisoned [it] overboard, he threw them overboard into the water, so it would s[ink] and it [would]n't be recovered by law enforcement. Q: I want to unwrap that statement just a little bit. You stated that he said that there was a small outboard engine onboard? A: Correct. Q: Did he provide any details about that small outboard engine? A: I believe -- if I recall correctly it was a 30 horsepower. Q: A 30 horsepower engine? A: Correct. Q: You said something about two sacks or bales. A: Correct. He stated that there were two small sacks or bales and each one contained six pieces, referring to bricks of cocaine, for a total of 12 pieces, that were tied up to a rope to the engine, and he lifted it and threw them overboard.

Second, Agent Borges testified about what Johnson said

to him. In doing so, he recounted that he "specifically talked to

Johnson. And during those preboarding questions [Johnson]

said . . . that they threw overboard a small spare engine."

Johnson does not dispute that, from the testimony of

these two agents about the statements that he made to them, a

reasonable juror could find that he admitted that he was aboard

- 15 - the boat with another person (De Leon), that the boat was

transporting cocaine, that he tied the cocaine to a spare engine,

and that "they" intentionally threw the engine overboard (thereby

destroying the cocaine) upon learning that the boat had been

detected by law enforcement.2 In other words, he does not dispute

that the statements -- together -- constitute a confession to the

crimes at issue here. Johnson nevertheless contends that this

out-of-court confession cannot suffice to support either of his

convictions at issue because there was an absence of "substantial"

independent evidence that "tends to establish" that the crimes

that he admitted committing in his out-of-court confession

occurred. See Tanco-Baez, 942 F.3d at 20 (quoting Opper, 348 U.S.

at 93). We do not agree.

For starters, substantial independent evidence was

introduced at trial that "tends to establish" that the boat on

which Johnson was traveling did have a controlled substance --

cocaine -- aboard it just prior to its interdiction. Francisco

González, the CBP agent patrolling the ocean by plane the night of

We note, in this regard, that in the testimony reciting 2

Johnson's statements, the agents did not at any point assert that Johnson himself stated that the material he tied to the engine was "cocaine," as he instead referred to what was tied to the engine only as "eso" and "doce piezas." But, the agents testified that "eso" and "doce piezas" are common slang terms that drug smugglers use to refer to cocaine. Johnson does not contend that his statements -- because they refer to "eso" and "doce piezas" and not "cocaine" -- do not constitute a confession to the crimes charged.

- 16 - the interdiction, testified that he spotted the boat on which

Johnson was found in the waters prior to its interdiction. He

further testified that the images that he reviewed on the infrared

camera on his plane -- which were also introduced into evidence

and that he testified were taken prior to the boat's interdiction

-- showed "bales or packages" that were "in the middle" of the

boat and thus in a location on the vessel that would have made it

possible for those on board to "get rid of" the "bales or packages"

easily if the boat were intercepted.

González also testified that the boat that the

defendants were on was traveling near "Highway 19," which he

described as a common drug smuggling route off the coast of Puerto

Rico, when it was interdicted and that he had participated in a

number of operations in which large quantities of cocaine had been

seized from vessels traveling close to Highway 19. He further

testified that the boat had no navigational lights running when it

was spotted, and that it was the most "common type" of vessel to

be carrying controlled substances because larger boats were

typically used to smuggle migrants.

In addition, Calderón, who had questioned Johnson

following the boat's interdiction, testified in his own right about

the general practices of the drug trafficking operations that he

had investigated during his time patrolling the waters around

Puerto Rico. That testimony accorded with González's about how

- 17 - such operations are usually conducted. It accorded as well with

the description that Calderón had provided about what González had

observed with respect to the boat on which Johnson was found.

This testimony -- and the evidence from the infrared

camera -- was not the only evidence that the government introduced

that bears on whether there was substantial independent evidence

that "tends to establish" that cocaine was on board the boat. The

government also introduced testimony from the handler of a drug

canine, who testified that when the dog conducted a canine sniff

of the boat, it alerted to "[p]ossible contamination of narcotics."

The government also introduced testimony from an intelligence

research analyst about the contents of a cell phone retrieved from

the defendants' boat, as well as a report that contained a

translation of those messages. That evidence, together, showed

that the phone's owner had some kind of transaction planned.

All of this evidence is independent of Johnson's out-

of-court confession, and, at least when considered as a whole, it

constitutes substantial evidence that "tends to establish" that

cocaine was on board the boat prior to its interdiction. It thus

serves the necessary corroborative function with respect to that

aspect of Johnson's out-of-court statements to Calderón about his

criminal conduct.

The government introduced similarly substantial evidence

independent of Johnson's out-of-court confession that "tends to

- 18 - establish" another critical aspect of it -- namely, that there was

a spare engine aboard to which Johnson had tied at least some of

the cocaine that was aboard the boat. That evidence includes the

evidence already described that indicates that the boat was

involved in smuggling drugs -- specifically cocaine. It also

includes testimony from Agents Calderón and González that cocaine

smugglers often travel with a spare engine on board their boat for

the purpose of ensuring that they have a ready means of disposing

of the cocaine while they are on the open waters.

Agent Calderón testified in that connection that

typically "bale[s]" containing cocaine are "tied" to a "smaller

engine" by drug smugglers so that any cocaine tossed overboard

"will sink and it will not be recovered as evidence by law

enforcement." González, the CBP officer, also testified that drug

smugglers package cocaine in "bales" and then they "attach each

. . . bale[] to another [bale] with a line,. . . and at the end of

the line they put some weight" -- often in the form of a "spare

engine[]" -- so that if "any law enforcement vessel detect[s] them,

they're able to throw it [into] the water and s[i]nk it [in] no

time." Thus, there is substantial independent evidence in the

record that "tends to establish" the aspect of Johnson's confession

in which he admitted that such an engine was on the boat and that

cocaine was tied to it.

- 19 - Finally, the government provided independent evidence

that "tends to establish" Johnson's admission that he

intentionally jettisoned the engine after realizing that the boat

had been detected by law enforcement. For example, González

testified that, after the defendants appeared to hear the plane

and the approaching interdicting vessel, and while he was moving

the plane in for a closer look, he could no longer see on the

infrared camera the bales or packages that he had originally

spotted in the middle of the boat. Moreover, when the boat was

interdicted, no bales or packages were found on board or in the

water.

Viewed as a whole, then, the record contains

"substantial" evidence that "tends to establish" each of the key

components of the statements attributed to Johnson that he does

not dispute, in pressing his argument under Tanco-Baez, combined

to constitute a confession to his destruction of cocaine on board

a boat. Accordingly, Johnson's Tanco-Baez-based challenge fails

as to his conviction for the destruction of a controlled substance

offense.

We emphasize that Tanco-Baez reversed a conviction for

possession of a firearm by an unlawful user of a controlled

substance under 18 U.S.C. § 922(g)(3) only after finding that the

government did not sufficiently corroborate "each essential fact

that [was] admitted" -- in that case, the defendant's statement to

- 20 - law enforcement that he was a long-term marijuana user. 942 F.3d

at 14-15, 25. And, Tanco-Baez did so only after determining that

the government was unable to provide any independent evidence that

corroborated the admission of habitual drug use. Id. at 24-25.

The government in this case, by contrast, provided

substantial independent evidence that "tends to establish" all the

relevant aspects of Johnson's admissions concerning the

destruction of forfeitable property offense -- his statements that

"eso" or cocaine was on the boat and tied to an engine, and his

confession that "they" intentionally threw the engine overboard.

We do not mean to suggest in emphasizing this distinction that

independent evidence of this comprehensive kind is needed to

satisfy the requirements described in Tanco-Baez for permitting an

out-of-court confession to be given weight. But, at least in the

face of such comprehensively bolstering evidence, we must reject

Johnson's contention that the evidence was not sufficient to

support his convictions for the charged crime, given his conceded

confession to it.

There does remain Johnson's challenge under Tanco-Baez

to his conviction for conspiracy to destroy forfeitable property

on a vessel. But, to the extent that more is needed under Tanco-

Baez to corroborate the aspects of the confession that bear

directly on whether he committed the conspiracy offense -- namely,

- 21 - his statement that "they" threw the engine overboard with twelve

"piezas" tied to it -- more was provided.

Calderón testified that the thirty-horsepower engine

Johnson professed to have thrown overboard through his statements

to law enforcement would have "weigh[ed] approximately 50 [or] 60

pounds." Calderón further testified that, based on his experience

investigating drug trafficking, each "pieza" of cocaine typically

would weigh 2.4 pounds. Thus, that testimony supplies independent

evidence that "tends to establish" that Johnson, after setting out

on a multi-day trip on a small boat carrying controlled substances

with De Leon, did not act alone in lifting more than sixty pounds

in the dark of night but instead was assisted by his boatmate.

So, here, as well, Johnson's Tanco-Baez-based challenges come up

short.

C.

We turn now to De Leon's sufficiency challenges to his

convictions, which also are for destruction of property subject to

forfeiture while aboard a boat and conspiracy to commit that

offense. He challenges both convictions on the ground that the

evidence of these charges was "circumstantial" and "improper[ly]"

required the "jury [to] mount[] inference over inference."

We first consider whether the evidence suffices to

permit a reasonable juror to find beyond a reasonable doubt that

cocaine was on the boat and that De Leon assisted Johnson in

- 22 - destroying it. Because we conclude that it does, we conclude that

De Leon's conviction for the destruction of forfeitable property

as defined by § 881(a)(1) on a vessel is supported by sufficient

evidence.

De Leon is right that we may not consider the statements

that Johnson made to Calderón in which Johnson purportedly admitted

either that "eso" or that a spare engine that had something tied

to it was aboard the boat. The jury was instructed not to consider

those statements for purposes of assessing whether there was

evidence sufficient to find De Leon guilty of the charges that he

faced, and so we set them aside for present purposes.

There is no bar, however, to our considering the

inculpatory statements by Johnson that Agent Borges testified

Johnson made to him. There was no similar prohibitory instruction

by the District Court to the jury regarding those statements; they

were admitted into evidence against De Leon. Nor does De Leon

argue otherwise. Accordingly, we must take account of Johnson's

statements that "they" threw the "engine" overboard, as he made

that statement to Borges, in assessing whether the quantum of

evidence in the record suffices to support De Leon's convictions.

With those preliminaries out of the way, the central

question is whether Johnson's statement to Agent Borges that "they

threw overboard a small spare engine" is sufficient to support De

Leon's conviction for the destruction-of-forfeitable-property-

- 23 - while-on-a-vessel offense when that statement is considered along

with all the other evidence -- other than, that is, Johnson's

statements to Agent Calderón. We conclude that it is.

At trial, the government presented circumstantial

evidence, previously described, that "tends to establish" that

cocaine was on the boat on which De Leon was found. This evidence

includes the infrared images suggesting that the boat the

defendants were on carried cargo or "bales" of some kind; the

evidence of the text messages from the phone found on the boat

that suggested that the sender had a transaction of some kind

planned; the testimony from Agent González stating that the boat

was traveling without navigational lights, on a route infamous for

drug smuggling, and was the type of vessel commonly used for drug

smuggling; and the testimony by the canine handler that after the

boat was interdicted, a canine sniff of the boat revealed

"[p]ossible contamination of narcotics."

Moreover, Agents Calderón and González provided

testimony that in their experience drug smugglers often have spare

engines aboard their boats to weigh down the cocaine in the event

that they need to jettison the drugs to avoid their detection by

law enforcement. And -- crucially -- Agent Borges testified that

Johnson told him that "they threw overboard a small spare engine"

prior to the boat being interdicted.

- 24 - Thus, a rational juror could have concluded beyond a

reasonable doubt that -- in light of the circumstantial evidence

that the boat contained cocaine, the testimony that drug smugglers

use spare engines to quickly dispose of cocaine in the event of an

interdiction, and Johnson's statement that "they threw overboard

a small spare engine" -- De Leon intentionally jettisoned cocaine

from the vessel. The result is that we must reject De Leon's

sufficiency challenge to his conviction for the destruction-of-

forfeitable-property offense.

There remains De Leon's challenge to the sufficiency of

the evidence supporting his conviction of conspiring to destroy

forfeitable property. It, too, falls short.

Most problematic for De Leon is Borges's testimony that

Johnson told Borges that "they threw overboard a small spare

engine" (emphasis added) -- implying that Johnson worked with

another person -- when he jettisoned the engine. As De Leon was

the only other person on the boat, it is no leap to conclude that

he was that other person.

Problematic as well for De Leon is Calderón's testimony

that the likely weight of the engine Johnson described was

"approximately 50 [or] 60 pounds." That testimony when combined

with the other testimony in the record that drug smugglers

typically tie cocaine to the engine -- which would add further

weight to the already heavy engine -- would allow a reasonable

- 25 - juror to conclude that De Leon and Johnson had to have worked

together to have been physically able to move the engine and throw

it overboard in the few minutes between when they heard the plane

and when the boat was pictured as no longer containing bales. The

record thus contains sufficient evidence for a rational juror to

find beyond a reasonable doubt that De Leon conspired to destroy

cocaine on a boat. The District Court therefore did not err in

denying De Leon's motion for judgment of acquittal as to Counts

Five or Six.

III.

We next consider the defendants' arguments for vacating

their convictions due to various alleged errors at trial. We begin

with the arguments for vacating them that De Leon advances. We

then consider Johnson's.

De Leon contends, among other things, his rights under

the Confrontation Clause of the U.S. Constitution as recognized in

Bruton were violated by the use of Johnson's statements to Agents

Calderón and Borges at his joint trial with Johnson,

notwithstanding the District Court's instruction to the jury that

it could not consider Johnson's statements to Calderón in De Leon's

case. We described these statements in detail above in analyzing

Johnson's sufficiency challenges. For present purposes, we

emphasize only that, to Agent Calderón, Johnson reportedly said

- 26 - that "eso" was on the boat in the amount of "doce piezas" and that

it was tied to a spare engine, which "he" threw overboard, and

that, to Agent Borges, Johnson reportedly said that "they threw

overboard a small spare engine." (emphasis added).

De Leon argues that the "statements" attributed to

Johnson by Calderón and Borges "are incriminating on their face,

and did not become incriminating by [his] testimony or by the

introduction of any other evidence." Put otherwise, he contends,

under Bruton, these statements, together, rendered the admission

of Johnson's confession impermissible "regardless of what the

[District] Court instructed the jury to do with it."

The government does not dispute that De Leon's Bruton

challenge is preserved.3 We thus proceed on that understanding,

which means that our review is de novo. See United States v. Vega

Molina, 407 F.3d 511, 520 (1st Cir. 2005). Because we find merit

to De Leon's Bruton challenge, we must vacate his convictions on

that ground alone. Id. at 522, 535. We thus do not address the

various separate challenges that he makes to his sentence.

1.

The Confrontation Clause provides that "[i]n all

criminal prosecutions, the accused shall enjoy the right . . . to

3 In addition to conceding that de novo review applies, the government has not contended in its briefs or at oral argument that De Leon has waived any particular argument in support of his Bruton claim.

- 27 - be confronted with the witnesses against him." U.S. Const.

amend. VI. The Supreme Court of the United States held in Bruton

that a defendant is deprived of that right "where the powerfully

incriminating extrajudicial statements of a codefendant, who

stands accused side-by-side with the defendant, are deliberately

spread before the jury in a joint trial" and the "alleged

accomplice . . . does not testify and cannot be tested by cross-

examination." 391 U.S. at 135-36 (1968).

Notably, the Court set aside the defendant's conviction

in Bruton despite "concededly clear instructions to the jury to

disregard" the confession as to him. Id. at 137. The Court

explained that it could not "accept limiting instructions as an

adequate substitute for [Bruton's] constitutional right of cross-

examination," id. at 137, given the "powerfully incriminating"

nature of the confession as to the defendant himself, id. at 135.

In light of Bruton, the fact that there was a limiting

instruction here -- with respect to Johnson's statements to

Calderón -- is no bar to De Leon's challenge to the use of those

statements. Insofar as the use of the statements is impermissible

under Bruton, the instruction cannot cure it. We turn, then, to

the question whether the use of the statements -- along with those

that Johnson made to Borges -- is barred by Bruton. But, the

answer to that question does not depend merely on what the Court

said in Bruton itself.

- 28 - In Richardson v. Marsh, the Court held that Bruton does

not apply where "the codefendant's confession is redacted to omit

any reference to the defendant, but the defendant is nonetheless

linked to the confession by evidence properly admitted against him

at trial." 481 U.S. 200, 202, 211 (1987). The Court explained

that the codefendant's confession in Bruton "'expressly

implicat[ed]' the defendant as his accomplice" and "at the time

that confession was introduced there was not the slightest doubt

that it would prove 'powerfully incriminating.'" Id. at 208

(quoting Bruton, 391 U.S. at 124 n.1, 135). By contrast, the Court

further explained, the confession at issue in Richardson "was not

incriminating on its face, and became so only when linked with

evidence introduced later at trial," namely, "the defendant's own

testimony." Id. It then held that "[w]here the necessity of such

linkage is involved," "the Confrontation Clause is not violated by

the admission of [the] . . . confession" so long as there is "a

proper limiting instruction." Id. at 208, 211; see also Vega

Molina, 407 F.3d at 520 ("Statements that are incriminating only

when linked to other evidence in the case do not trigger

application of Bruton's preclusionary rule.").

Richardson, however, does not itself mark the end of the

story when it comes to Bruton. Thereafter, the Court weighed in

on Bruton's scope yet again in Gray v. Maryland, 523 U.S. 185

- 29 - (1998), and, it did so in a way that is of direct relevance here,

given the nature of the Bruton challenge that De Leon presses.

Gray recounted that "Richardson placed outside the scope

of Bruton's rule those statements that incriminate inferentially."

Id. at 195. But, Gray explained, "inference pure and simple cannot

make the critical difference." Id. Instead, Gray held, the

applicability of Richardson "depend[s] in significant part upon

the kind of, not the simple fact of, inference." Id. at 196.

At issue in Gray was a codefendant's statement that

included a response to the question, "Who was in the group that

beat Stacey?" The answer had been redacted to read: "Me, deleted,

deleted, and a few other guys." Id. at 196. The Court acknowledged

"that the jury [was required to] use inference to connect . . .

[such a] redacted confession with the defendant." Id. at 195.

The Court nonetheless held that the redacted confession was

facially incriminatory, id. at 197, notwithstanding the fact that

statement did not expressly name Gray and even though it would be

impossible to infer from the text of the codefendant's statement

alone to whom "deleted" referred, see id. at 196.

Gray reasoned that a juror who put together the pieces

of the evidence and the prosecutor's argument would naturally infer

that the deleted reference in the confession must have been a

reference to the defendant. Id. at 193; see also id. at 195

(noting that the "Court has assumed . . . that . . . specific

- 30 - descriptions," such as "where confessions describe [a] codefendant

as the 'white guy' and give[] a description of his age, height,

weight, and hair color," "fall inside . . . Bruton's protection"

(quoting Harrington v. California, 395 U.S. 250, 253 (1969)));

Vega Molina, 407 F.3d at 520 (comparing the efficacy of redaction

in a case involving "numerous events and actors, such that no

direct inference plausibly can be made that a neutral phrase like

'another person' refers to a specific codefendant" with its utility

in a case "involv[ing] so few defendants that the statement leaves

little doubt in the listener's mind about the identity of 'another

person'"). The Court pointed out that a juror need not be well-

versed in the law to make that inference with ease. Indeed, the

Court explained, if the "blank" referred to someone else, a juror

"might . . . wonder how . . . the prosecutor could argue the

confession is reliable, for the prosecutor, after all, has been

arguing that [the defendant], not someone else" committed the crime

described in the confession. Gray, 523 U.S. at 193. Thus, Gray

makes clear that, even when the jury must engage in some

inferential reasoning in order to conclude that a codefendant's

statement is incriminating, the statement still may fall within

the scope of Bruton. For the statement to do so, though, the

inference that is necessary to make it incriminating must be one

"that a jury ordinarily could make immediately, even were the

confession the very first item introduced at trial," such that the

- 31 - statement "obviously" and "directly" implicates the defendant in

the crime. Id. at 196.

2.

The government contends that, notwithstanding Gray, there is

no Bruton problem here in part because the statements attributed

to Johnson were made to different agents who each independently

testified about what Johnson had said to each of them. In

particular, the government asserts that when viewed separately,

the two statements are not facially incriminating as to De Leon.

Johnson's alleged statement to Agent Borges -- that "they" threw

the engine overboard -- is not incriminating on its own, according

to the government, as the government agrees that De Leon was not

charged with jettisoning equipment used in connection with the

transportation of a controlled substance but rather just

destruction of a controlled substance while on a vessel. According

to the government, Johnson's purported statements to Agent

Calderón also did not facially incriminate De Leon, because

Calderón testified that Johnson only described what he himself had

done without mentioning De Leon. In other words, the government's

argument appears to be that the work that the jury would have to

do to combine the statements would require too much inferential

- 32 - reasoning to permit them to be deemed facially incriminating.4 We

do not agree.

Whether a statement by a non-testifying codefendant is

"facially incriminatory" of the defendant himself turns on how

readily a juror might make the inferences required for the

statement to be incriminating. The government develops no argument

-- beyond a conclusory one -- for determining that merely because

the statements attributed to Johnson were introduced by the

testimony of two different government witnesses it would take more

than an immediately obvious inference for a juror to put them

together. It is thus reasonable to conclude here that the jury

immediately, and without having to resort to other evidence, would

have discerned the significance of the collective import of these

statements, whatever it may have been, despite the fact that they

were delivered separately, in just the manner contemplated in

Gray.5 We therefore reject the notion that the government can

4In his arguments to us, De Leon contends that Johnson's statements are testimonial such that the Confrontation Clause applies. The government does not contest this point, and thus we find the government to have waived any contention that the statements were not testimonial in nature. 5We note that our conclusion that the government cannot split a defendant's confession into pieces to evade a Bruton problem does not implicate the administrability concerns that informed the Court's holding in Richardson. The government had the entirety of Johnson's statement available to it at the outset of trial, and we are not concerned under such circumstances that it would have been "[im]possible [for the government] to predict the admissibility of

- 33 - avoid creating a Bruton problem by simply splitting up a

defendant's confession and having multiple government witnesses

testify to pieces of it.

True, as we explain later, a juror would have been free

to believe the testimony recounting some of Johnson's statements

but not others precisely because different agents recounted

hearing them in distinct circumstances. But, the fact that some

portions of testimony about a codefendant's confession might be

given more weight than others by a juror is not a reason to conclude

that the confession itself, if believed, is not facially

incriminating under Bruton. Even when a codefendant's confession

is admitted by testimony given by a single witness a jury might

find some portions of that witness's recounting of it more credible

than others. That there is a possibility that a jury may not

actually find evidence of a codefendant's confession persuasive or

even credible is of no moment under Bruton, which requires that we

assume that a confession will be given maximum weight by a jury.

See Bruton, 391 U.S. at 135-36. Consequently, we consider

Johnson's statements together.

3.

Considering Johnson's separate statements as one, then,

we must decide whether they, together, constitute a facially

[that] confession in advance of trial." Richardson, 481 U.S. at 209.

- 34 - incriminating confession within the meaning of Bruton. Notably,

we are not dealing here with a case that is just like Richardson

and Gray, as each of those cases arose in the redaction context.

Notably, too, we are not dealing here with statements that require

any inference -- as the statements in Richardson and Gray did --

as to whether the allegedly incriminating statements of the

codefendant implicate the defendant in the conduct described.

Johnson's statements, given Gray, obviously referred to De Leon as

a participant in the conduct by admitting that "they" acted

together. Nor does the government contend otherwise.

Thus, the Bruton challenge that De Leon raises turns on

a question distinct from the one that arose in the Supreme Court's

Bruton trilogy that we have detailed above. The question here

concerns whether the codefendant's statement is a confession to

any criminal conduct at all, even as to himself.

The issue arises in this way here because the statements

by Johnson that are at issue do not refer expressly to "cocaine"

or "controlled substances" at any point. They instead refer only

to "eso" and "doce piezas."

This feature of the statements, however, does not

necessarily preclude us from finding a Bruton violation here. We

have applied the Bruton framework in cases in which the question

was not whether the anonymization was adequate but whether the

admitted-to conduct was sufficiently inculpatory. See, e.g.,

- 35 - United States v. Lopez-Lopez, 282 F.3d 1, 11-13 (1st Cir. 2002)

(considering whether Bruton applied to a codefendant's statement

that could be read as referring to the defendant but was

questionably inculpatory); United States v. Limberopoulos, 26 F.3d

245, 253 (1st Cir. 1994) (rejecting a Bruton claim as to statements

that did "not implicate" the defendant); cf. Brown v. Maloney, 267

F.3d 36, 42 (1st Cir. 2001) (concluding a state-court decision was

not contrary to clearly established Supreme Court precedent where

it found no Bruton issue because the codefendants' statements were

only "somewhat incriminating" because they only had the effect of

placing the defendant "close to the crime location"). And,

although, for record-based reasons, we did not find a Bruton

violation in any of those cases, see, e.g., Lopez-Lopez, 282 F.3d

at 11-13 (rejecting the defendant's Bruton claim as to a

codefendant's statement directing the defendant "don't answer" in

response to a question by law enforcement because the "statement

[was] not sufficiently close to a confession" to be "powerfully

incriminating" as it "did not even mention any person or any crime

or any criminal responsibility"); Limberopoulos, 26 F.3d at 253

(concluding that Bruton did not apply to statements made by a

codefendant when he surrendered a license because the inference

"that the [statement] was an obvious attempt at deceit and coverup"

was not obvious or immediate but rather "require[d] a considerable

chain of subsidiary inferences"), the government does not argue

- 36 - that, because we are not dealing with a redaction or a question as

to whether the defendant is implicated in the statements by the

codefendant confessing to criminal conduct, Bruton is inapplicable

here.

The government's sole contention as to why there is no

Bruton violation -- insofar as the statements at issue must be

considered together -- hinges on the fact that Johnson did not at

any point in his statements expressly assert that he had tied a

controlled substance to the engine that was jettisoned. Rather,

the government stresses, Johnson referred in those statements only

to "eso."

According to the government, that feature of Johnson's

statements in and of itself ensures that there is no problem here

under Bruton, because it ensures that those statements are not

themselves "facially incriminating" of De Leon. According to the

government, the statements became so only when linked to the other

testimony at trial that explained that "eso" and "piezas" are

common slang terms for cocaine. We thus next take up that

argument, which, as we will explain, fails to align with the logic

set forth in Gray.

4.

The Court made clear in Gray that the bare text of the

codefendant's confession in isolation does not control the Bruton

inquiry. Instead, Gray instructs that where the record makes it

- 37 - "obvious[]" that a statement that might be somewhat ambiguous taken

alone is in fact facially incriminating, the inference required of

the jury to find the statement incriminating is not "the kind

of . . . inference" that would take the admission outside Bruton's

ambit. Gray, 523 U.S. at 196 (emphasis omitted).

As the Court explained, "confessions that use shortened

first names, nicknames, descriptions as unique as the 'red-haired,

bearded, one-eyed man-with-a-limp,' and perhaps even full names of

defendants who are always known by a nickname" are all examples of

statements which the Court "has assumed . . . [are] not

outside . . . Bruton's protection." Gray, 523 U.S. at 195 (quoting

United States v. Grinnell Corp., 384 U.S. 563, 591 (1966) (Fortas,

J., dissenting)). Our decision in Vega Molina is to the same

effect. It explains that the inquiry under Bruton, Richardson,

and Gray "requires careful attention" not only "to the text of the

statement itself" but also "to the context in which it is

proffered," all with the aim of assessing whether a "direct

inference [from the statement] plausibly can be made." 407 F.3d

at 520.

Applying this guidance, we have no doubt that if Johnson

referred to cocaine in a language other than Spanish or English,

the statement containing that reference would not be insulated

from Bruton's reach just because the reference had to be translated

to a different language to be understood by the jury. The same is

- 38 - true, we think, if Johnson had used an obvious slang name for

cocaine without using that word itself -- notwithstanding that the

slang name could, in theory and stripped of context, have a

different meaning, as might be true of the word "crack." There,

too, we would still deem the statement to be facially

incriminating, just as a nickname may be.

The only question here, then, is whether Johnson's

references to "eso" and "piezas" in answering questions put to him

during a criminal investigation triggered by suspicions of drug

smuggling about what he had tied to the engine when he jettisoned

it are similarly facially incriminating. We conclude that they

are.

We may assume that the government is right that the words

"eso" and "piezas" themselves do not in the abstract necessarily

carry as an ordinary meaning "cocaine." But, language is always

used in context, as Gray instructs us to remember in assessing

whether a Bruton violation occurred. See Gray, 523 U.S. at 195-

96; see also Vega Molina, 407 F.3d at 520-21. Taking that

instruction seriously, we note that the government has not argued

that there is anything in the record from which the jury could

have concluded that "eso" and "piezas," as used in the context in

which the witnesses described Johnson as having used them (namely,

answering questions during an interrogation regarding his

suspected drug smuggling), referred to anything but cocaine. Thus,

- 39 - while neither word inherently carries that meaning, any more than

a nickname or a description of a red-headed, bearded man with a

limp inherently refers to a defendant who happens to have that

alias or those characteristics, Johnson's statements were

"facially incriminat[ing]" as to De Leon and fall within the ambit

of Bruton. Gray, 523 U.S. at 196 (emphasis omitted) (quoting

Richardson, 481 U.S. at 209)).

In accord with that conclusion, we are confident that

"[a] juror who does not know the law," to use the Court's

terminology from Gray, 523 U.S. at 193, would easily intuit that

had the meaning of "eso" been ambiguous, Agent Calderón would have

asked Johnson a follow up question -- namely, "What is eso?" Given

that Calderón did not acknowledge asking such a question, a juror

would immediately infer here that the meaning of "eso" was

unambiguous to Johnson's interlocutor. And, in coming to that

conclusion, a juror would also immediately infer that "eso" must

obviously mean cocaine -- for if it did not mean as much, then

Calderón would have continued to question Johnson about what was

on the boat to determine if he would admit to possessing,

destroying, and conspiring to destroy forfeitable property.

Because we determine that Johnson's purported statements

to Agents Calderón and Borges were, when viewed together, facially

incriminating, we find that the admission of those statements

against Johnson in his joint trial with De Leon violated De Leon's

- 40 - Sixth Amendment rights under Bruton. As such, the limiting

instruction the District Court gave as to Johnson's statements to

Calderón were insufficiently curative.6 We consequently must

vacate De Leon's convictions for Counts Five and Six.

IV.

We now turn to the challenges that Johnson brings in

which he contends that, due to trial errors, his convictions must

be vacated. He presents three such challenges: first, that one

of the empaneled jurors was not impartial; second, that the

District Court improperly allowed lay witnesses to testify to

technical, specialized subjects; and third, that the jury

instructions constructively amended the indictment.

"A constructive amendment occurs when the charging terms

of the indictment are altered, either literally or in effect, by

[the] prosecution or court after the grand jury has last passed

upon them." United States v. DeCicco, 439 F.3d 36, 43 (1st Cir.

2006) (quoting United States v. Fisher, 3 F.3d 456, 462 (1st Cir.

1993)). An amendment can be "brought about by a literal alteration

of the words in the indictment," by "a jury instruction which

modifies the offense charged," or by "the admission of evidence of

6 The government has developed no argument as to why, insofar as there is a Bruton violation, such a violation would constitute harmless error as to one or more of the counts of conviction that De Leon challenges. See United States v. Wright, 937 F.3d 8, 30 (1st Cir. 2019) (explaining that "we may deem any harmless error argument not briefed by the government as waived").

- 41 - an offense not charged by the grand jury." United States v. Dunn,

758 F.2d 30, 35 (1st Cir. 1985). Because we conclude that

Johnson's assertion that his indictment was constructively amended

and that he was prejudiced thereby has merit, we begin and end our

analysis there.7

We first address Johnson's constructive-amendment

argument as it pertains to the substantive offense for which he

was convicted. We then address that argument as it pertains to

his conviction for conspiring to commit that same offense.8

7 Johnson's challenge to the admission of the testimony of various law enforcement agents on the ground that they were not qualified as experts but provided expert testimony anyway does concern an issue that could be implicated in any re-trial that may ensue. Nonetheless, it is not clear how the government will present that case if it chooses to bring one. We do note that we have emphasized in the past that "the line between expert testimony under Rule 702 [of the Federal Rules of Evidence] and lay opinion testimony under Rule 701 is, in practice, 'not [an] easy [one] to draw.'" United States v. Valdivia, 680 F.3d 33, 50 (1st Cir. 2012) (second and third alterations in original) (quoting United States v. Cólon Osorio, 360 F.3d 48, 52-53 (1st Cir. 2004)). Generally, "testimony based on the . . . expertise a witness personally acquires through experience, often on the job," is lay testimony. United States v. George, 761 F.3d 42, 59 (1st Cir. 2014) (citation omitted). But, testimony that requires a witness to go beyond "simple logic and pattern recognition" and to rely instead on a "technical understanding of the government's . . . tools and . . . capabilities" -- even if that technical understanding is developed on the job -- is typically considered expert testimony under our precedent, requiring the witness to be qualified as such. United States v. Montijo-Maysonet, 974 F.3d 34, 48-49 (1st Cir. 2020) (internal quotation marks and citations omitted). 8 We note that even if De Leon could have raised the same arguments that Johnson now advances in support of his assertion that the indictment was constructively amended, he did not do so.

- 42 - A.

Johnson acknowledges that the indictment "limited" his

charged conduct, with respect to the substantive offense, to "the

destruction of 'controlled substances.'" But, he points out that

the jury instructions allowed the jury to find him guilty of that

offense on grounds not included in the indictment. He contends in

this regard that, under those instructions, the jury was told that

it could find him guilty of the substantive offense even if it

found that he had not destroyed controlled substances but instead

had destroyed only "equipment . . . used . . . [in] . . .

delivering . . . any controlled substance." (alteration in

original).

Johnson does not dispute that he failed to raise this

challenge below. Accordingly, Johnson must survive plain-error

review to obtain relief on this ground. See United States v.

Brandao, 539 F.3d 44, 47 (1st Cir. 2008). He thus must establish

not only that there was an error, but "that it is 'clear or

obvious,' that his substantial rights were prejudiced thereby, and

that the 'fairness, integrity, or public reputation of judicial

As a result, we do not decide whether we would have vacated De Leon's convictions on the same constructive amendment grounds on which we vacate Johnson's convictions. See United States v. Kilmartin, 944 F.3d 315, 326 (1st Cir. 2019), cert. denied, 140 S. Ct. 2658 (2020) (noting that the court "ha[d] no duty" to consider a constructive amendment argument the defendant did not make on appeal).

- 43 - proceedings' [was] 'seriously impaired,'" United States v.

Gaccione, 977 F.3d 75, 81 (1st Cir. 2020) (quoting United States v.

Rodríguez-Milián, 820 F.3d 26, 32-33 (1st Cir. 2016)). We conclude

that he has made that showing.

With respect to the first two prongs of plain-error

review, Johnson contends that the District Court erred by

"impermissibly add[ing] possible bases for conviction beyond that

specified in the indictment" and that this error was clear or

obvious. We agree.

In Stirone v. United States, 361 U.S. 212 (1960), the

Supreme Court established that a constructive amendment occurs

when jury instructions "broaden[] the possible bases for

conviction from that which appeared in the indictment." United

States v. Miller, 471 U.S. 130, 138 (1985) (emphasis omitted)

(discussing Stirone, 361 U.S. at 213). There, the district court

submitted to the jury two different theories under which the

defendant could be found guilty of violating the Hobbs Act, either

of which could have independently supported a conviction under the

Act. Stirone, 361 U.S. at 213-14. But, the government had

specified only one of those theories in the indictment, id. at

213, and the Court concluded that the instructions thus

constructively amended the indictment, id.

- 44 - The indictment in this case charged Johnson with

"knowingly and intentionally destroy[ing] property subject to

forfeiture" -- specifying that the "subject property" was a

"controlled substance." The indictment thus limited the theories

under which a jury could convict Johnson of the crimes. By

instructing the jury that it could find Johnson guilty if it found

beyond a reasonable doubt that "the property was a controlled

substance or equipment used for delivering controlled substances"

(emphasis added), the District Court instructed the jury about a

crime that was not contained in the indictment -- and committed a

"clear" and "obvious" error in doing so.

The government suggests that it was not an error to

instruct the jury on both possible bases for conviction because 21

U.S.C. § 881(a), which lists the types of property subject to

forfeiture, includes both "controlled substances" as well as

"equipment of any kind . . . used [for] . . . delivering . . .

controlled substances." 21 U.S.C. § 881(a). But, the fact that

the government could have indicted Johnson for destroying

"equipment used for delivering controlled substances" does not

change the fact that the government did not.

The indictment limited the charges against Johnson to

the one set forth in § 881(a)(1): destruction of a "manufactured,

distributed, dispensed, acquired, or possessed controlled

substance." We have previously found that when an indictment

- 45 - quotes directly from a section of a statute, it can be understood

to be referencing that specific section. See, e.g., United

States v. Kilmartin, 944 F.3d 315, 326 (1st Cir. 2019). That is

what we understand the indictment did here -- the indictment quoted

from § 881(a)(1), thereby limiting the charge to that provision.

Moreover, the jury instructions then broadened the

charge offense to encompass the one set forth in § 881(a)(2). The

written instructions stated that the jury could find each defendant

guilty of "intentionally destroying property that is subject to

forfeiture under section 511(a) of the Comprehensive Drug Abuse

Prevention and Control Act of 1970. (Title 21, United States Code,

Section 881(a)(1))" -- defining the charged offense as the

destruction of a controlled substance -- if the jury found, among

other facts, that "the property [destroyed] was a controlled

substance or equipment used for delivering controlled substances"

(emphasis added). The oral instructions were substantially

similar.

In other words, the jury instructions -- instructions

that the government itself proposed -- recognized that the

indictment was limited to the offense of destruction of property

defined by § 881(a)(1) but then instructed the jury that it could

find Johnson guilty of that offense if it found that Johnson had

destroyed property defined by § 881(a)(1) or § 881(a)(2). See

also Mathis v. United States, 136 S. Ct. 2243, 2257 (2016) ("[A]n

- 46 - indictment and jury instructions could indicate, by referencing

one alternative term to the exclusion of all others, that the

statute contains a list of elements, each one of which goes toward

a separate crime."). By broadening the grounds on which a jury

could convict Johnson of destruction of forfeitable property, the

District Court constructively amended the indictment and committed

a clear and obvious error.9

We turn, then, to whether Johnson has met his burden to

show that his "substantial rights were prejudiced" by the clear or

obvious error. Gaccione, 977 F.3d at 81. The prejudice

requirement of plain-error review is not satisfied in this context

when, "given the evidence at trial, the jury could not have found

[the defendant] guilty of . . . the amended charge[] if it had not

also found he had [committed the indicted charge]." Brandao, 539

F.3d at 63. In that situation, "[any] error" could not have

affected whether the defendant had been convicted of the charged

offense rather than the uncharged one set forth in the jury

instructions. Id.

The government contends that is the situation here. It

does not dispute that the jury may have, due to the instruction,

9 The government does not dispute the necessary premise of Johnson's challenge -- that § 881(a)(1) and § 881(a)(2) set forth two distinct offenses rather than two means of committing the same offense.

- 47 - determined that Johnson was guilty of destroying equipment, which

§ 881(a)(2) concerns. It simply contends that he was not

prejudiced thereby, because any finding of guilt on that basis

necessarily depended on the jury also finding him guilty of

destroying cocaine, which § 881(a)(1) concerns. In other words,

the government contends, Johnson's convictions necessarily

encompassed all the charged conduct, even accepting that the only

charged conduct deemed the predicate forfeitable property to be a

controlled substance. It thus follows, the government contends,

that Johnson cannot make the prejudice showing that he must.

To assess that contention, we must determine whether it

is reasonably probable that a jury instructed as this one was would

have determined, in finding Johnson guilty, that he destroyed

equipment associated with a controlled substance without also

finding that he destroyed a controlled substance. If that outcome

is reasonably probable, then Johnson would have met his burden as

to prejudice on plain error review. See id.; see also United

States v. Takesian, 945 F.3d 553, 566 (1st Cir. 2019).

Johnson contends that, on this record, the "instruction

guided the jury to convict by . . . finding that Johnson jettisoned

a spare engine, . . . and not necessarily . . . the destruction of

drugs." (emphasis omitted). He asserts that due to the

"contradict[ing]" nature of the evidence at trial that cocaine was

on the boat and the "undisputed and admitted" nature of Johnson's

- 48 - statement that he threw the engine overboard, "the jury might have

convicted based on something different than the destruction of

cocaine." (emphasis omitted).

The government responds that Johnson fails to account

for the requirement that the jury find that the "equipment"

jettisoned was "used for delivering controlled substances." It

argues that the only way a rational juror could have found the

required connection to drugs is if "the jury . . . [found] that

drugs were on the [boat]." We are not persuaded.

One reason for our reluctance to accept the government's

argument about prejudice is that this jury acquitted Johnson of

the cocaine possession and conspiracy to possess cocaine charges

that he faced. It is true that a jury's acquittal of a defendant

of an offense that is seemingly inconsistent with the jury's

verdict of guilt as to that same defendant as to another offense

has no bearing on whether the evidence is sufficient to support

the finding of guilt as to that other offense. See Powell, 469

U.S. at 65. But, we are hesitant to accept the notion that such

an acquittal adds nothing to a defendant's contention that it is

reasonably probable that a plainly erroneous jury instruction of

the sort at issue here caused prejudice because a jury found that

defendant guilty of the uncharged offense without also finding him

guilty of the charged one.

- 49 - Moreover, here, the jury learned of the statements in

which Johnson admitted that he had thrown overboard a spare engine

upon being espied by law enforcement from two different agents --

only one of whom recounted that Johnson had said anything that

indicated that cocaine had been tied to it. Indeed, the other

agent, Agent Borges, who testified that Johnson had made the

statement that the engine had been so jettisoned, did not indicate

that Johnson made any reference to cocaine. Yet, that agent was

the one who testified that Johnson had provided those answers in

response to a standardized set of questions that were asked of all

those aboard interdicted vessels before law enforcement boards

them. By contrast, the agent who testified that Johnson had not

only stated that he had thrown the engine overbroad but also had

tied cocaine to it beforehand, Agent Calderón, reported that

Johnson had so stated in an interrogation of him that occurred

ashore several hours after the boat had been interdicted. No notes

or transcript of that interrogation were introduced at trial. We

thus conclude that, on this record, there is a reasonable

probability that a juror would have weighed the testimony of the

two agents differently and surmised, accordingly, that the spare

engine had been jettisoned without also concluding that cocaine

was tied to it.

That conclusion is reinforced by the fact that there was

evidence in the record to indicate that the boat had been involved

- 50 - in drug smuggling apart from the evidence that could support a

finding that cocaine had been on the boat and jettisoned upon the

boat's interdiction. That evidence included the alert from the

drug canine indicating the possible presence of drug residue, the

boat's location on a route infamous for drug smuggling, testimony

that the boat was the type typically used for drug smuggling, and

the text messages suggesting that a transaction of some sort was

planned. It also included the testimony from Agents González and

Calderón about the use that cocaine smugglers have for spare

engines -- to destroy evidence of cocaine in the event of detection

by law enforcement.

Thus, there was evidence that the spare engine was

forfeitable property in its own right, regardless of whether these

defendants used the engine to destroy cocaine during the journey

that led to their interdiction. See, e.g., United States v.

Latorre-Cacho, 874 F.3d 299, 310-11 (1st Cir. 2017) (finding error

in the jury instructions to be prejudicial on plain error review

when there was not insubstantial evidence presented to the jury

that would have allowed it to reach a verdict based on the

erroneous instruction). As such, it would not have been

unreasonable for a juror to conclude that Johnson jettisoned the

spare engine to conceal it from law enforcement simply because of

its character as "equipment," forfeitable under § 881(a)(2) due to

its connection to drug smuggling.

- 51 - Accordingly, we conclude that, on this record, Johnson

has met his burden to show that it is reasonably probable that a

juror would have found that "the property [jettisoned] was . . .

equipment used for delivering controlled substances" without also

finding that controlled substances were jettisoned from the boat

during this specific voyage. See Takesian, 945 F.3d at 566 (“'A

reasonable probability' . . . is more than a mere possibility, but

less than a preponderance of the evidence." (quoting United States

v. Domínguez Benítez, 542 U.S. 74, 83 n.9 (2004))). As a result,

we hold that "the record could [have] 'rationally le[d] to a

contrary finding" and the prejudice prong of plain error is

satisfied. Brandao, 539 F.3d at 63 (quoting Neder v. United

States, 527 U.S. 1, 19 (1999)).

That brings us to the fourth and final prong of plain

error, which requires that we consider whether the error "seriously

impaired" the "fairness, integrity, or public reputation of

judicial proceedings." Gaccione, 977 F.3d at 81 (citation

omitted). The purpose of the prohibition on constructive

amendments is "to preserve the defendant's Fifth Amendment right

to indictment by grand jury, to prevent re-prosecution for the

same offense in violation of the Sixth Amendment, and to protect

the defendant's Sixth Amendment right to be informed of the charges

against him." Brandao, 539 F.3d at 57.

- 52 - These rights are at the very core of our criminal justice

system. Undermining these principles by allowing a constructive

amendment would thus seriously impair the fairness and integrity

of the judicial proceeding.

We therefore conclude that it was plain error for the

District Court to constructively amend through its jury

instructions the indicted offense of destruction of a controlled

substance on a vessel. We consequently vacate Johnson's conviction

of Count 6.

We now consider Johnson's constructive amendment

argument as it pertains to his conspiracy conviction. Here, too,

our review is for plain error. See Brandao, 539 F.3d at 60. We

again find the standard satisfied.

By quoting directly from § 881(a)(1), the indictment

specified that the object of the charged conspiracy was the

destruction, while on a vessel, of forfeitable property as defined

by § 881(a)(1) -- "that is . . . a manufactured, distributed,

dispensed, acquired, or possessed controlled substance." The

District Court instructed the jury, however, that it could find

the defendant guilty if it found that Johnson conspired to destroy,

while on a vessel, "a controlled substance or equipment used for

delivering controlled substances." (emphasis added).

- 53 - Thus, for the reasons explained above, when the

indictment was limited to charging Johnson with conspiracy to

destroy forfeitable property in the form of a controlled substance,

the District Court could not then instruct the jury that it could

find Johnson guilty if it found that he conspired to destroy "a

controlled substance or equipment used for delivering controlled

substances." (emphasis added).

To be sure, we have allowed for some variation between

the means alleged in an indictment for a conspiracy offense and

what is presented to the jury at trial. But, here, the government

does not dispute the premise of Johnson's challenge -- that the

indictment alleged a conspiracy to commit one crime while the

instructions permitted the jury to render a guilty verdict upon

finding that the defendant conspired to commit a different crime

because the forefeitable property was an element of the crime

rather than a means of committing it. See, e.g., United States v.

Mueffelman, 470 F.3d 33, 38 (1st Cir. 2006) (explaining that the

conspiracy offense was not constructively amended because "the

titular crime was not altered"). Thus, we conclude that the

District Court committed clear or obvious error in its jury

instructions with respect to the conspiracy offense.

There remain the questions of whether Johnson has met

his burden to show that this error "prejudiced" his "substantial

- 54 - rights" and it would "seriously impair[]" the "fairness,

integrity, or public reputation of judicial proceedings."

Gaccione, 977 F.3d at 81 (quoting Rodríguez-Milián, 820 F.3d at

32-33). We conclude that he has.

With respect to prejudice, we again rely on the test

articulated in Brandao and consider whether, "given the evidence

at trial, the jury could not have found [the defendant] guilty

of . . . the amended charge[] if it had not also found he had

[committed the indicted charge]." Brandao, 539 F.3d at 63. We

find that test satisfied.

The government's case against Johnson at trial as to

the conspiracy charge overlapped considerably with its case as to

the substantive offense of destruction of a controlled substance

while on a vessel. A juror could have credited Agent Borges's

testimony that Johnson purportedly told him that "they threw

overboard a small spare engine," found compelling the testimony

that drug smugglers typically have spare engines on their boats

that they use to weigh down any jettisoned cocaine, and believed

that the vessel in this case was likely used to transport cocaine

at some point but did not have cocaine on board on this trip given

that no cocaine was found. In addition, as to the element of

agreement, that same juror, having already credited Borges's

testimony that Johnsons said that "they threw overboard a small

spare engine," (emphasis added), could have also relied on Agent

- 55 - González's testimony that the engine of the type Borges's testimony

referred to would weigh fifty or sixty pounds, such that throwing

the engine overboard would be a two-man job. Thus, we conclude

that there was a reasonable probability that a juror could have

convicted Johnson of conspiring to jettison equipment used to

transport cocaine rather than of conspiring to jettison cocaine.

See Takesian, 945 F.3d at 566 (explaining that "'[a] reasonable

probability' . . . is more than a mere possibility, but less than

a preponderance of the evidence" (quoting Domínguez Benítez, 542

U.S. at 83 n.9)).

With respect to the fourth prong of plain error review,

we must determine whether the clear or obvious error "seriously

judicial proceedings." Gaccione, 977 F.3d at 81. We conclude

that it did, for reasons similar to those that we set forth above

in finding this same prong satisfied in the context of the

substantive destruction-of-forfeitable-property offense. We

therefore conclude that it was plain error for the District Court

to constructively amend the indictment as to the conspiracy-to-

destroy-forfeitable-property offense.

For the aforementioned reasons, we decline to reverse

either Johnson's or De Leon's convictions on sufficiency-of-the-

evidence grounds. We vacate De Leon's convictions of Counts 5 and

- 56 - 6 and the associated sentence because the admission of Johnson's

statements in their joint trial violated De Leon's rights under

the Confrontation Clause to the Federal Constitution. As to

Johnson, we vacate his convictions of Counts 5 and 6 and the

associated sentences because the District Court constructively

amended the indictment through its instructions to the jury.

- 57 -