United States Court of Appeals For the First Circuit
No. 09-2298
UNITED STATES OF AMERICA,
Appellee,
v.
FELIX MORALES SANABRIA, a/k/a El Chapo,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Lynch, Chief Judge, Lipez and Howard, Circuit Judges.
Rafael F. Castro Lang for appellant. Timothy R. Henwood, Assistant United States Attorney, with whom Rosa Emilia Rodriguez-Velez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Thomas F. Klumper, Assistant United States Attorney, were on brief, for appellee.
July 11, 2011 LIPEZ, Circuit Judge. Felix Morales Sanabria
("Morales"), a commercial fisherman who goes by the nickname "El
Chapo," was convicted on multiple drug trafficking counts following
a jury trial and sentenced to fifty years' imprisonment. The
conviction related to three separate shipments of drugs, two of
cocaine and a third of cocaine, heroin, and ecstasy, brought by
boat from the Dominican Republic into Puerto Rico between November
2006 and April 2007. At trial, the government's case against
Morales rested almost exclusively on the testimony of three
cooperating witnesses, two of whom identified Morales as the
individual who facilitated the delivery of the drugs from boat to
shore in Puerto Rico.
Appealing his conviction and sentence, Morales seeks a
new trial on two grounds. First, he contends that the trial
judge's exclusion of some members of his family from the courtroom
during jury selection violated his Sixth Amendment right to a
public trial. Second, he claims multiple errors in the admission
and exclusion of certain testimony at trial, the cumulative effect
of which denied him a fair trial and undermined the trustworthiness
of the verdict. Alternatively, Morales requests a remand for
resentencing in light of several claimed errors in the calculation
of his sentence.
We agree with Morales that he is entitled to a new trial
due to the cumulative effect of several erroneous evidentiary
-2- rulings. Therefore, we do not address the merits of his other
arguments.
I.
A. Factual Background1
The charges against Morales arose from a trafficking
scheme that involved the shipment of illegal drugs by boat from the
Dominican Republic to Puerto Rico.2 Juan Pagán Santiago ("Pagán")
oversaw the Puerto Rican side of the operation, with substantial
assistance from Freddie Santana Martínez ("Santana"). Prior to the
events of this case, Pagán and Santana collaborated on over thirty
shipments of drugs into Puerto Rico.
The three shipments at issue here were arranged through
Santana's Dominican Republic contacts, who hired their own boat and
captain to deliver the drugs to Puerto Rico. On each of the three
occasions, a boat left the Dominican Republic from Santo Domingo
with the shipment of drugs and was met halfway by a boat from
Puerto Rico, which took possession of the shipment and brought it
back to the Aguadilla region of Puerto Rico. The Dominican
suppliers provided Santana with a contact number for the individual
who would be delivering the drugs to Aguadilla, known to Santana
1 We derive the following factual account from the trial transcript, reciting the facts "as the jury could have found them." United States v. Ayala-García, 574 F.3d 5, 8 (1st Cir. 2009). 2 The bulk of the drugs was distributed within Puerto Rico, with some portion repackaged and smuggled into the continental United States.
-3- only as "El Chapo." Though he talked with El Chapo on the phone,
Santana testified at trial that he never met El Chapo face-to-face.
The first of the three shipments took place in November
2006. To retrieve the drugs from the drop-off in Aguadilla,
Santana enlisted the help of Domingo Ureña Del Villar ("Ureña"), a
good friend with whom Santana had grown up in the Dominican
Republic. The day before the shipment was to arrive, Santana
dispatched Ureña to the Aguadilla area with instructions to call El
Chapo once he was close. Ureña drove to the town of Mayagüez and
called El Chapo, who instructed him to stay where he was. Shortly
thereafter, a white Mitsubishi Montero pulled in front of Ureña and
the driver signaled with his hand for Ureña to follow. They
proceeded to a vehicle accessory shop, where El Chapo got out of
the Montero and told Ureña that he would take Ureña to the spot
where they were to meet the following day for the drug pick-up as
soon as he had picked up new luxury rims for his tires. At trial,
Ureña identified the man who got out of the vehicle, and whom he
knew as El Chapo, to be defendant Morales. Ureña followed El Chapo
to a Wendy's restaurant in Aguadilla, which El Chapo indicated to
be their rendezvous spot. They thereafter parted ways, with Ureña
retiring to a local hotel for the evening.
The next morning, Ureña proceeded to the Wendy's, where
another man appeared in the white Montero and instructed Ureña to
follow. Ureña followed the Montero to a house construction site
-4- along a beach in Aguadilla, where he encountered El Chapo and six
other men. El Chapo oversaw the men as they loaded the drugs,
which were packaged in a cooler and two plastic drums, into Ureña's
vehicle. The containers housed some ninety kilograms of cocaine,
with El Chapo having already removed an additional twenty kilograms
or so of cocaine as payment prior to delivery.3 Ureña met up with
Santana and Pagán just off of the expressway outside of Aguadilla
and followed them to a house owned by Pagán near the town of Lajas,
where they counted and prepared the drugs for further distribution.
When the second shipment arrived in January 2007, Ureña
was again assigned to retrieve it. Accompanying Ureña this time
was Joel Gómez Diaz ("Gómez"), a friend who had grown up with
Santana and Ureña in the Dominican Republic. The delivery
otherwise proceeded in much the same fashion as the previous one:
Ureña and Gómez met El Chapo at the Wendy's in Aguadilla the day
before the shipment, El Chapo called Ureña the next day with the
precise pick-up location, and Ureña and Gómez proceeded to a wooded
3 The actual amount of drugs delivered in the first shipment is the subject of conflicting testimony. Santana testified that the shipment contained between 110 and 115 kilograms of cocaine, with 90 going to Santana and Pagán and the remainder taken by El Chapo. Ureña's initial testimony at trial was consistent, confirming that the first shipment contained 90 kilograms after El Chapo had taken his share. However, Ureña later stated that Santana and Pagán tallied the shipment (after El Chapo had extracted his portion) to amount to 115 kilograms of cocaine, 95 of which they delivered to a third party, leaving Santana and Pagán with the remaining 20 kilograms. The precise quantity of cocaine delivered is of no importance to our decision here.
-5- area of the beach in Aguadilla where El Chapo and five or six other
men loaded plastic drums filled with cocaine into their vehicle.
Gómez, like Ureña, later testified that the El Chapo he interacted
with in the course of the delivery was defendant Morales. From the
beach, the drugs, totaling ninety kilograms of cocaine, were taken
to Pagán's Lajas house to be counted and processed.4
Some time after the second shipment, Ureña and Gómez
again drove to Aguadilla to meet with El Chapo and provide
coordinates for picking up the next shipment of drugs.5 The
meeting was observed and photographed by a number of law
enforcement agents, as federal and commonwealth law enforcement
authorities had placed Ureña under surveillance in furtherance of
a joint drug trafficking investigation. El Chapo arrived at the
Aguadilla Wendy's in a black Chevrolet TrailBlazer with luxury
rims. Ureña entered the TrailBlazer and stayed there for around
twenty minutes. While surveillance captured Ureña entering the
TrailBlazer, no pictures were taken of El Chapo. A check of the
license plate on the TrailBlazer indicated that it was registered
4 Again, the total shipment included around 110 kilograms of cocaine, of which El Chapo retained roughly 20 kilograms as payment. 5 Ureña testified that the meeting took place fifteen days after the second shipment, which would place it in January or February of 2007. This account was contradicted by a law enforcement witness present at the meeting, who testified that it took place on April 10.
-6- to Francisco Rosario Cordero ("Rosario"), Morales's former brother-
in-law.
The third and final shipment occurred in late April,
2007. On April 26, Ureña and Gómez met El Chapo at the Aguadilla
Wendy's, where El Chapo got out of his vehicle and talked with
Ureña about plans for the pickup. El Chapo called Ureña and Gómez
the next afternoon, April 27, and instructed the pair to meet him
at the same location at which the second shipment had been
delivered. This third shipment included around 100 kilograms of
cocaine, four packages of heroin, and 26,000 ecstasy pills. After
the drugs had been loaded into their car by El Chapo's crew, Ureña
and Gómez drove the shipment to a house owned by Pagán in Cidra,
Puerto Rico.
On April 28, Santana and Ureña were pulled over by the
police while en route to deliver part of the third shipment. At
the time of the stop, the vehicle contained seventy-seven kilograms
of cocaine and all four packages of heroin. The drugs were seized
and both were arrested on the spot. Fifteen months later, in July
2008, Pagán, Gómez, Morales, and two others were indicted by a
federal grand jury on multiple drug-trafficking-related charges.6
6 Gómez and Morales were promptly arrested after the indictment issued, but Pagán remained at large until his arrest in October 2009, after Morales had been tried and sentenced.
-7- B. The Trial
The indictment in this case sets forth five separate
charges against Morales. These include: (1) conspiracy with intent
to distribute cocaine, heroin, and ecstasy, in violation of 21
U.S.C. §§ 841 and 846; (2) conspiracy to import into the Customs
Territory of the United States five or more kilograms of cocaine
and one kilogram or more of heroin, in violation of 21 U.S.C.
§§ 952 and 963; (3) possession with intent to distribute five or
more kilograms of cocaine, in violation of 21 U.S.C. § 841; (4)
possession with intent to distribute one kilogram or more of
heroin, in violation of 21 U.S.C. § 841; and (5) a forfeiture count
under 21 U.S.C. §§ 853 and 881.
At trial, the prosecution's case against Morales
proceeded almost exclusively on the testimony of the three
cooperating witnesses, Santana, Ureña, and Gómez. The three
testified in detail regarding the drug shipments and El Chapo's
role in delivering the drugs to shore, and, as noted above, Ureña
and Gómez positively identified Morales to be El Chapo. The
government took care to have each witness explain that he had been
charged with and pled guilty to drug trafficking charges; that he
had not been sentenced at the time of his testimony; and that he
had entered into a Plea and Cooperation Agreement with the
government, under which he agreed to provide truthful testimony in
exchange for a recommendation of a reduced sentence.
-8- Morales's counsel, Fernando Carlo-Gorbea ("Carlo"),
attempted to undermine the testimony of the cooperating witnesses
on cross-examination. He elicited testimony that the three had
grown up together and been friends in Santo Domingo, and that they
had seen each other and spoken in prison prior to testifying at
trial. Carlo also attempted to impeach Santana's testimony at
trial by highlighting its inconsistencies with a statement Santana
had given investigating officers immediately following his arrest.
Faced with Santana's resistance to this effort, Carlo attempted to
enter the inconsistent statement into evidence through the
testimony of one of the interviewing officers. As we discuss
below, the trial judge precluded that effort as an improper offer
of extrinsic evidence on a collateral matter.
The government put on five additional witnesses, of whom
three warrant mention here. The first was Jose Ramon Perez-Rivera,
a police officer who participated in surveillance of Ureña's April
10 meeting at the Aguadilla Wendy's. Perez-Rivera testified that
he and three other agents were present at the meeting, each in his
own vehicle, to observe and take photographs. After the fact,
Perez-Rivera ran the license plate for the black Chevrolet
TrailBlazer that had rendezvoused with Ureña, determining that it
was registered to Francisco Rosario-Cordero.
Second, Rosario testified that he had loaned his black
Chevrolet TrailBlazer to Morales, his former brother-in-law, for
-9- around a month and a half in March and April 2007. Rosario also
confirmed that Morales went by the nickname "Chapo." On cross-
examination, attorney Carlo tried to elicit testimony that, in a
previous interview, Rosario had told Carlo that law enforcement
agents had intimidated and threatened him and his wife to get
Rosario to testify that Morales had used the TrailBlazer and had
been involved in drug trafficking. The court sustained an
objection to the line of questioning, ruling that it was outside
the scope of the direct examination.
Third, the government put on Ivelisse Muñoz-Nieves
("Muñoz"), who testified that she was dating Morales, whom she knew
as Chapo, at the time of his arrest in July 2008. Muñoz testified
that Morales told her that the authorities had confused him with
someone else. Upon being asked whether she believed him, she
stated, over attorney Carlo's objection, that she did not. She
also testified that Morales had told her "[t]hat at a given point
in time in his life he may not have been a saint, but that he had
done his things, but at the time that they took him away, he was,
you know -- he had settled down." This testimony prompted Carlo to
move for a mistrial on the grounds that Muñoz's testimony was
"highly prejudicial" evidence of prior bad acts in violation of
Rule 404 of the Federal Rules of Evidence. The court denied the
motion.
-10- Following completion of the prosecution's case, the court
addressed the government's motion to exclude the testimony of the
sole defense witness, Special Agent Luis Ortiz. As noted above,
Carlo intended to offer the testimony of Ortiz, the agent who had
conducted the initial interview of Santana, for the purpose of
impeaching Santana's trial testimony. Agreeing with the government
that this testimony constituted impermissible extrinsic evidence of
a collateral matter, the court granted the motion to exclude.
The jury found Morales guilty of all charges and assessed
a $420,000 judgment against him on the forfeiture count. At a
sentencing hearing three months later, the court sentenced Morales
to fifty years' imprisonment on each count, to be served
concurrently, followed by five years' supervised release.
This timely appeal followed.
II.
Morales makes six discrete claims of error in the judge's
conduct of the trial, which, he contends, taken together justify a
new trial under the cumulative error doctrine.7 See United States
v. Sepúlveda, 15 F.3d 1161, 1195-96 (1st Cir. 1993). While we do
7 Because we resolve that Morales is entitled to a new trial in light of these trial errors, we reach neither the claim that his right to a public trial was violated by the exclusion of some family members during jury selection nor Morales's sentencing arguments.
-11- not find merit in all of Morales's claims of error,8 we agree that
the trial judge abused his discretion in three significant
evidentiary rulings.
A. Exclusion of Testimony by Agent Ortiz
On April 30, 2007, two days after his arrest, Santana
submitted to an interview as a cooperating witness with Special
Agents Luis Ortiz and Alek Pacheco of the United States Immigration
and Customs Enforcement. As reflected in an interview report
prepared by Agent Ortiz,9 Santana provided a detailed account of
the April 2007 shipment of drugs from the Dominican Republic.
Santana explained, among other things:
That [an individual known as] "El Chapo" was the person in charge of introducing and deliver[ing] the narcotics to him/her. The cooperating defendant described "El Chapo" as a white, short, skinny male with multiple tattoos on his arms, approximately 25 years old. The cooperating defendant also stated that "El Chapo" owns approximately three fishing boats and that the boats are located in the western coast of Puerto Rico.
8 Three of the six issues Morales cites do not rise to the level of an abuse of discretion and accordingly are not discussed here. Those claims targeted the judge's denial of pretrial continuances, interference with the cross-examination of Ureña, and failure to take steps to limit or mitigate Muñoz's testimony that Morales had told her "[t]hat at a given point in time in his life he may not have been a saint." 9 The report, though never admitted into evidence at trial, was marked as an exhibit by the district court and included in the record on appeal.
-12- By contrast, the appellant Morales is described in the presentence
investigation report as "Black/Hispanic."
At trial, Santana admitted that he had submitted to an
interview with agents Ortiz and Pacheco, but denied having given a
description of El Chapo. Pressed by defense counsel, Santana said
that he had once asked Ureña about the appearance of "the people
who pick up the drugs," and Ureña "told [him] that they were more
or less light-skinned and with tat[t]oos." Nonetheless, Santana
repeatedly denied ever having given the authorities a description
of El Chapo or any other specific individual. Upon completion of
the government's case, attorney Carlo sought to have Agent Ortiz
testify as to the contents of his April 30 interview with Santana.
The government moved to exclude the testimony under the collateral
issue rule, citing United States v. Cruz-Rodriguez, 541 F.3d 19,
29-30 (1st Cir. 2008). Granting the motion, the trial judge
explained to Carlo, "if you want to present this evidence either to
impeach Mr. Santana or to contradict his testimony, that falls into
the collateral [issue rule], and that's not enough."
On appeal, the government concedes error in the trial
judge's exclusion of Agent Ortiz's testimony. We accept the
government's concession and thus do not reach the merits of
Morales's arguments on this point. The government does, however,
contend that the exclusion was harmless error, an argument that we
address further below.
-13- B. Limitation of Rosario Cross-Examination
According to attorney Carlo's representations to the
court, Rosario came to Carlo's office and met with him at some
point prior to trial, along with his co-counsel and other
individuals, and described a pattern of harassment by law
enforcement officials. Rosario allegedly told Carlo that when the
authorities first contacted him about the investigation, he had
refused to implicate Morales in anything illegal, and had told them
that Morales never used the black Chevrolet TrailBlazer registered
to Rosario. The investigating officers allegedly "wanted him to
testify that Chapo was involved in drug dealing." To apply
pressure, "they went to his place of business, they got him out of
there, they went to his house, they stopped [his wife] in the
highway," and they threatened them both.
At trial, attorney Carlo unsuccessfully tried to cross-
examine Rosario concerning these allegations of intimidation. The
government objected at the outset of the questioning and called for
a sidebar,10 whereupon the trial judge asked attorney Carlo to
explain the direction of his inquiry. Carlo stated that he wanted
"to ask [Rosario] that he told me that he was threatened by the
10 Though the government articulated no clear basis in objecting, the grounds for its objection appear to have been relevance and possible confusion of the issues. Specifically, the government attorney stated, "I object . . . for the reason that this is a -- what he's intending to elicit has something to do with another investigation not the case we're here on today."
-14- agents that if he didn't tell them what they wanted to hear, they
would take him to arrest him together with [his wife]." Attorney
Carlo argued that cross-examination on the alleged intimidation was
permissible for purposes of impeachment. Among other things, Carlo
said he wanted to elicit the contradiction between Rosario's
in-court testimony that Morales had used the Trailblazer and his
statement to counsel that he had told the government that Morales
had not used the Trailblazer. The attorney wanted, apparently, to
elicit the different statements and imply that the in-court
statement was a change brought about by government intimidation.
The trial judge ruled, however, that because Rosario had not
testified on direct examination concerning his meetings with law
enforcement and whether he had been intimidated, the attorney's
proposed line of questions was outside the scope of the direct
examination and thus barred. The judge further ruled that it would
be improper to impeach Rosario with his prior statements to
attorney Carlo because those statements had not been made under
oath.
On appeal, the government does not attempt to justify the
limitation on cross-examination by reference to either ground
proffered by the trial judge. Indeed, neither is correct. There
is no requirement that prior statements offered for impeachment
purposes have been made under oath. To the contrary, such "prior
statements may have been oral and unsworn . . . ." United States
-15- v. Sisto, 534 F.2d 616, 622 (5th Cir. 1976). Moreover, as attorney
Carlo attempted here, "'the making of the previous statements may
be drawn out in cross-examination of the witness himself . . . .'"
Id. (quoting 1 Edward W. Cleary, McCormick on Evidence § 34 (2d ed.
1972)).
With regard to the other ground cited by the trial judge,
circumstances tending to show probable witness bias or motive for
fabrication, including threats and intimidation by one of the
parties, are properly subject to cross-examination for purposes of
impeachment, whether or not the matter is broached in the course of
direct examination. See, e.g., United States v. Thompson, 359 F.3d
470, 473–480 (7th Cir. 2004) (upholding district court ruling
permitting government to cross-examine defense witness regarding
occasions on which defendant had threatened her); Udemba v. Nicoli,
237 F.3d 8, 17 (1st Cir. 2001) (noting that matters involving bias,
including fear of one of the parties, are "fertile territory for
cross-examination"). Indeed, failure to allow such cross-
examination may, in some circumstances, amount to a violation of
the Confrontation Clause. The Supreme Court has held that "a
criminal defendant states a violation of the Confrontation Clause
by showing that he was prohibited from engaging in otherwise
appropriate cross-examination designed to show a prototypical form
of bias on the part of the witness, and thereby 'to expose to the
jury the facts from which jurors . . . could appropriately draw
-16- inferences relating to the reliability of the witness.'" Delaware
v. Van Arsdall, 475 U.S. 673, 680 (1986) (alteration in original)
(quoting Davis v. Alaska, 415 U.S. 308, 318 (1974)).
To be sure, "trial judges retain wide latitude . . . to
impose reasonable limits" on cross-examination relating to witness
bias and coercion, id. at 679, and this is where the government
focuses its arguments on appeal. The government suggests that the
district court acted properly in limiting cross-examination of
Rosario for fear that, should Rosario deny his earlier statements,
the defendants' lawyers would be forced to testify regarding their
meeting with the witness in violation of ethical rules applicable
to attorneys. See Gov't Br. at 47 ("Morales'[s] counsels had no
witness, other than themselves, to present the alleged statements
made by Rosario that he had been threatened by an agent and did not
let Morales use the vehicle.").
Any such concern was premature at the time that the trial
judge barred further cross-examination of Rosario.11 The
government's objection precluded cross-examination at an early
11 Because the concern with attorney testimony was premature, we offer no opinion on whether the prospect of such testimony could have justified the court's ruling. We note, as a general proposition, that a concern with trial counsel testifying as a fact-witness might not, on its own, support exclusion of relevant testimony. See Waltzer v. Transidyne General Corp., 697 F.2d 130, 133-35 (6th Cir. 1983) (holding that a trial judge erred in precluding defense counsel from testifying at trial to contradict key statements made by one of the plaintiff's witnesses, even though, in doing so, defense counsel would have violated the ethical rule against trial counsel testifying as a fact witness).
-17- juncture, just as attorney Carlo was asking Rosario to confirm that
he had told Carlo that he was approached by law enforcement prior
to Morales's arrest. The cross-examination might have proceeded in
any number of appropriate directions at that point. For example,
if attorney Carlo had been allowed to ask Rosario whether law
enforcement had threatened him in order to pressure him into
testifying that he had lent the TrailBlazer to Morales, Rosario
might have simply confirmed the account. This confirmation would
eliminate the possibility that one of Morales's lawyers would take
the stand. Even if Rosario had denied any pressure, there would
have been room for additional cross-examination on the point before
Morales's lawyers had to consider testifying. We also do not know
whether Morales's lawyers would have sought to testify, or would
have simply let Rosario's denial stand. The record suggests that
the latter course was at least as likely as the former. During the
course of the sidebar on this issue, attorney Carlo repeatedly
protested that he had no desire to testify as a witness. In sum,
the attorney testimony concern raised by the government was, at
best, an inchoate one at the time the judge cut off cross-
examination, and thus offers no support for that ruling.
The government additionally suggests that the allegations
of law enforcement intimidation were "speculative," and that
allowing the testimony would have caused undue confusion. The
government is correct that a district court may properly limit
-18- cross-examination on "'inherently speculative'" theories of bias,
where "'the defendant is unable to lay a proper evidentiary
foundation.'" United States v. Martínez-Vives, 475 F.3d 48, 53-54
(1st Cir. 2007) (quoting United States v. Callipari, 368 F.3d 22,
39 (1st Cir. 2004), vacated on other grounds 543 U.S. 1098 (2005)).
Here, however, the court did not give Carlo a chance to lay any
evidentiary foundation, barring all questions about the witness's
interactions with law enforcement and defense counsel. Moreover,
the proposed cross-examination was not, on its face, a speculation-
fueled "'fishing expedition,'" id. at 54 (quoting Callipari, 368
F.3d at 39), as Carlo represented to the court personal knowledge
of statements by the witness indicating that he had been threatened
by law enforcement agents.
We thus conclude that the trial judge abused his
discretion.12
C. Admission of Opinion Testimony from Muñoz
The last error relates to Muñoz's testimony that she did
not believe Morales's explanation for his arrest -- namely, that
the authorities "had confused him with someone else."13 Morales
12 We do not decide whether this error amounts to a violation of the Sixth Amendment, nor need we do so, in light of our holding that the application of the non-constitutional harmless error standard requires a new trial. See infra Part III. 13 The relevant testimony was as follows:
Q. Did there come a time after [Morales] bailed out that you met with him?
-19- argues that, in permitting Muñoz to express her view on the
credibility of Morales's statement, the district court admitted
improper lay opinion testimony and thereby abused its discretion.
We agree.14
The Federal Rules of Evidence allow lay opinion to be
admitted only upon the satisfaction of two conditions. First, the
proffered opinion cannot be grounded in scientific, technical, or
specialized knowledge, but rather must be "rationally based on the
perception of the witness." Fed. R. Evid. 701. Second, the
opinion must be "helpful to the jury in acquiring a 'clear
understanding of the witness's testimony or the determination of a
fact in issue.'" United States v. Flores-de-Jesús, 569 F.3d 8, 20
(1st Cir. 2009) (quoting Fed. R. Evid. 701). As we have explained,
lay opinion will fail this second, "helpfulness" requirement "when
A. Yes. Q. How many times? A. Four times. Q. When you met with him, did you ask him about the charges that were pending against him? A. Yes. Q. What did he say to you? A. That it was a confusion, that they had confused him with someone else, that that was the reason that he had the electronic [ankle bracelet], but once that was cleared up, it was going to be over and it was going to be left behind. Q. Ma'am, did you believe that? [Objection and sidebar] A. No. 14 We bypass the issue of whether Muñoz's testimony on this point meets the basic relevance threshold set by Federal Rule of Evidence 401.
-20- the jury can readily draw the necessary inferences and conclusions
without the aid of the opinion." Lynch v. City of Boston, 180 F.3d
1, 17 (1st Cir. 1999) (citing 7 J. Wigmore, Evidence §§ 1917–18);
see also United States v. Meises, Nos. 09–2235, 09–2239, 2011 WL
1817855, at *7 (1st Cir. May 13, 2011) ("The nub of [the
helpfulness] requirement is to exclude testimony where the witness
is no better suited than the jury to make the judgment at issue,
providing assurance against the admission of opinions which would
merely tell the jury what result to reach." (citations omitted)
(internal quotation marks omitted)).
Muñoz's opinion testimony falters at this second hurdle.
The central issue in Morales's trial, and the one upon which
Morales's defense of mistaken identity rested, was whether or not
Morales was the "El Chapo" who had delivered drugs to the
cooperating witnesses.15 Thus, in asking Muñoz to state whether she
believed Morales's claim that the authorities "had confused him
with someone else," the government was effectively inviting the
witness to express an opinion on the ultimate issue in the case.
It is true that there is no categorical bar to such "ultimate
issue" opinion testimony. See Fed. R. Evid. 704(a). However, lay
opinion testimony on the ultimate issue in a case must satisfy Rule
701's helpfulness requirement, and "seldom will be the case when a
15 As Morales did not testify, his mistaken identity defense was based entirely on the impeachment of the government's witnesses.
-21- lay opinion on an ultimate issue will meet the test of being
helpful to the trier of fact since the jury's opinion is as good as
the witness'[s] . . . ." See Mitroff v. Xomox Corp., 797 F.2d 271,
276 (6th Cir. 1986). The jury here, having heard the testimony of
those directly involved in the charged trafficking offenses, was in
a far superior position than Muñoz to "draw the necessary
inferences and conclusions" about Morales's mistaken identity
defense. Lynch, 180 F.3d at 17. Where, as here, "attempts are
made to introduce meaningless assertions which amount to little
more than choosing up sides, exclusion for lack of helpfulness is
called for by [Rule 701]." Fed. R. Evid. 701 advisory committee's
note (1972). The trial judge thus abused his discretion in
allowing Muñoz's opinion into evidence.
III.
Having found that the trial judge made a number of
erroneous evidentiary rulings over the course of Morales's trial,
we now consider whether those errors entitle Morales to a new
trial. See Meises, 2011 WL 1817855, at *14.
A. Standard
Our determination of whether to grant a new trial is
governed by a harmless error standard. We will find non-
constitutional evidentiary errors harmless where it is "'highly
probable that the error[s] did not influence the verdict.'" Id.
-22- (quoting Flores-de-Jesús, 569 F.3d at 27).16 Rather than focus on
any one error, Morales argues for a new trial based on the
aggregate effect of the errors below on the fairness of his trial.
Because "[t]he inquiry to determine whether cumulative errors are
harmless is the same as for individual error," id., we do that
cumulative analysis. In conducting our analysis, we keep in mind
that the government has the burden of establishing harmlessness,
Flores-de-Jesús, 569 F.3d at 27, and we will vacate if we find
"that the effect of the errors, considered together, could not have
been harmless" in light of the applicable standards. Alvarez v.
Boyd, 225 F.3d 820, 825 (7th Cir. 2000) (citing United States v.
Oberle, 136 F.3d 1414, 1423 (10th Cir. 1998)).
B. Cumulative Error
The rubric of cumulative error demands that trial errors
be weighed "against the background of the case as a whole, paying
particular weight to factors such as the nature and number of the
errors committed; their interrelationship, if any, and combined
effect; how the district court dealt with the errors as they arose
(including the efficacy -- or lack of efficacy -- of any remedial
efforts); and the strength of the government's case." Sepúlveda,
15 F.3d at 1196. In weighing the impact of the trial judge's
16 Errors that implicate constitutional rights are subject to a more demanding standard: the government must "demonstrate that the error was harmless beyond a reasonable doubt by showing that the defendant would have been convicted in the absence of the error." United States v. Pridgen, 518 F.3d 87, 91 (1st Cir. 2008).
-23- errors on the fairness of Morales's trial, the "background of the
case as a whole" assumes particular prominence here. Id.
As we have described, the government built its case
against Morales almost exclusively on two lines of testimony.
First and most significant was the testimony of the three
cooperating witnesses, and particularly Ureña's and Gómez's
identification of Morales as the "El Chapo" who ferried the
shipments of drugs to shore in Puerto Rico. Second was Rosario's
testimony that he had loaned to his former brother-in-law Morales
the black Chevrolet TrailBlazer that the police observed in a
meeting with Ureña. The government did not introduce any
additional evidence of the sort one often sees in a drug
prosecution: no physical evidence linking Morales to the drugs or
to the boats used to deliver them, no video or photographic
surveillance capturing Morales meeting with those involved in
trafficking, and no audio recordings. The government's case thus
depended, to an unusual extent, on the credibility of its
witnesses. On the other side of the equation was a simple defense
of mistaken identity: defense counsel contended that Morales,
though known by the nickname "El Chapo," was not the El Chapo who
participated in the charged drug trafficking.
As detailed below, the trial court's erroneous rulings
substantially interfered with Morales's ability to counter the
government's case by impeaching two critical witnesses, Santana and
-24- Rosario. The effect of these rulings was then compounded by the
admission of improper testimony from Muñoz. Viewing the errors in
the context of the trial as a whole, we cannot conclude that it is
"highly probable" that the jury verdict escaped their collective
influence. Meises, 2011 WL 1817855, at *14 (quoting
Flores-de-Jesús, 569 F.3d at 27).
1. Exclusion of Ortiz
We begin with the erroneous exclusion of Agent Ortiz's
testimony regarding Santana's post-arrest description of El Chapo
"as a white, short, skinny male." The government contends that the
judge's error was harmless because the agent's testimony "would
have impeached only part of Santana's testimony," leaving intact
his description of the drug trafficking organization and the
details of the three shipments. The government's argument is
misguided. As we said in another case where, as here, "[t]he
central issue was one of identification," "[e]vidence that someone
other than the defendant was identified as the criminal is not only
probative but critical to the issue of the defendant's guilt."
Pettijohn v. Hall, 599 F.2d 476, 480 (1st Cir. 1979). Here, of
course, Santana did not affirmatively identify another individual
as El Chapo – in fact, at trial, he denied ever having met El
Chapo.17 However, in an account in obvious tension with this
17 As we have detailed above, Santana testified that he only communicated with El Chapo by telephone.
-25- testimony, Santana provided to the police two days subsequent to
his arrest a physical description of El Chapo, which suggests that
Santana personally met him. Moreover, the description, given
nearly contemporaneously with the charged conduct, was of a "white"
man, while Morales is described in the presentence investigation
report as "Black/Hispanic." These discrepancies accord with the
defense's theory that Morales was the victim of mistaken identity.
Thus, it is of little consequence whether or not the bulk of
Santana's testimony would have remained uncontradicted if Agent
Ortiz had been permitted to testify, as the piece that would have
been impeached goes to the most critical issue in the trial.
A more substantial argument for harmlessness might be
that the proposed testimony from Agent Ortiz would not have
directly affected the testimony given by Ureña and Gómez,
potentially the two most important witnesses (as the only ones to
personally identify Morales at trial as a participant in the
charged offenses). However, effective impeachment of Santana by
means of his prior statements was relevant to the credibility of
Ureña and Gómez as well, as Santana's contradictory accounts would
play into the defense's theory that the three cooperating witnesses
"concocted [a] story to save their own necks." In the course of
cross-examination, attorney Carlo established that the three grew
up together in the Dominican Republic, were long-time friends, and
-26- had spoken together in jail after their arrest.18 This inferential
evidence of fabrication would have been substantially fortified by
evidence that one of the three had given a very different account
to the authorities of his involvement with El Chapo immediately
after arrest, and later denied doing so at trial.
2. Limitation on Cross-Examination of Rosario
In light of the absence of physical evidence linking
Morales to the charged drug trafficking, the thwarted attempt to
impeach Rosario's testimony also takes on particular significance.
The surveillance photographs of an individual in a black Chevrolet
TrailBlazer meeting with Ureña were the only independent, non-
testimonial evidence going to El Chapo's identity, and it was
Rosario's testimony that tied that evidence to Morales. According
to attorney Carlo, however, Rosario initially told the police that
18 Carlo's cross-examination also undermined Ureña's testimony by drawing out a number of inconsistencies between Ureña's trial testimony and prior testimony he had given before the grand jury. These inconsistencies included, for example, the location where Ureña had spent the night before the first drug pickup (before the grand jury he said that he had slept at Págan's Lajas house, but at trial he denied it and said he had gone to a hotel); whom he met at the Wendy's on the day of the first pickup (before the grand jury he testified that El Chapo had come to get him, but at trial he said that it was another man driving El Chapo's white Montero); how much he had been paid for his first pickup (before the grand jury he said $9,000, but he testified at trial that it was $13,000); where the first and second pickups took place (before the grand jury he testified that the pickups occurred at the same location, and at trial he said that they were at different beaches); and where he had taken the third shipment of drugs (before the grand jury he said he had taken the drugs to Lajas, but at trial he said Cidra).
-27- "Chapo never used the [TrailBlazer]," and changed his story to
implicate Morales only after the police had subjected him and his
wife to a campaign of harassment. If true, the trial judge's
ruling prevented the jury from hearing important testimony.19
Rosario's testimony would have been undermined if defense counsel
had been able to elicit admissions that Rosario and his wife had
been intimidated by law enforcement agents, see United States v.
Scheer, 168 F.3d 445, 450 (11th Cir. 1999) ("Had [the defendant]
been able to bring out in his cross-examination of [the witness]
the fact that [the witness] had been intimidated by the assistant
U.S. attorney prosecuting this case, the value of [the witness's]
testimony would have been considerably diminished."), and even more
so if defense counsel had been able to establish that Rosario had
changed his account after such intimidation.
3. Admission of Opinion Statement by Muñoz
Lastly, the admission of Muñoz's opinion on the
credibility of Morales's defense may also have influenced the
jury's verdict, although the force of the opinion was undermined by
defense counsel's cross-examination. We believe the admission of
Muñoz's opinion contributed, however modestly, to the likelihood
that the other evidentiary errors at trial influenced the jury's
verdict.
19 Because the trial judge barred cross-examination from proceeding, we cannot know whether Rosario would have admitted or denied the account.
-28- IV.
In sum, given the nature of the government's case against
Morales and the seriousness of the evidentiary errors at issue, we
conclude that the government has not met its burden of proving that
it is "'highly probable that the error[s] did not influence the
verdict.'" Meises, 2011 WL 1817855, at *14 (quoting
Flores-de-Jesús, 569 F.3d at 27). Instead, those errors
unavoidably call into doubt the reliability of the verdict and
"'the underlying fairness of the trial.'" United States v.
Meserve, 271 F.3d 314, 332 (1st Cir. 2001) (quoting Van Arsdall,
475 U.S. at 681). We therefore vacate the judgment and remand for
a new trial.
So ordered.
-29-