United States Court of Appeals For the First Circuit
UNITED STATES OF AMERICA,
JOHN WENOR BRESIL,
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. José A. Fusté, U.S. District Judge.]
Lynch, Chief Judge, Howard and Kayatta, Circuit Judges.
Víctor Ramos-Rodríguez, with whom Wilfredo Díaz-Narváez, was on brief, for appellant. Kelly Leann Tiffany, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Chief, Appellate Division, and Thomas F. Klumper, Assistant United States Attorney, were on the brief, for appellee.
September 24, 2014
KAYATTA, Circuit Judge. John Wenor Bresil was convicted
of illegally reentering the United States after he was found in the
middle of the night by Coast Guard and Border Patrol officials in
an open boat with seventeen others twenty-three nautical miles off
the coast of Puerto Rico. On appeal he argues that he was wrongly
prevented from showing at trial that he did not intend to enter the
United States but instead was passing Puerto Rico on his way to the
island of St. Maarten. Specifically, he argues that: (1) the
district court wrongly denied him a continuance after the
government announced its intention to call an expert witness only
five days before trial; (2) the government violated his due process
rights by sinking his boat after it took him into custody,
preventing a conclusive determination of whether it contained
enough fuel to make it to St. Maarten, and by deporting others
found in the boat with him who would have testified that the boat
was traveling to St. Maarten; and (3) there was insufficient
evidence to support his conviction. Though we find that the
government plainly violated Federal Rule of Criminal Procedure 16,
we affirm because that violation did not prejudice Bresil, and his
other claims are without merit.
The basic facts leading to Bresil's conviction are not
disputed. On the evening of March 19th, 2012, a border patrol
aircraft was patrolling the Mona Passage, the body of water that
lies between the islands of Hispaniola (which contains Haiti and
the Dominican Republic), to the west, and Puerto Rico, to the east.
At around 9:40 P.M., the aircraft detected a vessel about 30 miles
southwest of Puerto Rico traveling toward that island. Border
patrol agents tracked the vessel as it traveled northeast toward
Puerto Rico until it came to a stop twenty-three nautical miles off
the coast at approximately 1:00 A.M.
Only then did a Coast Guard vessel intercept the boat,
which was twenty-six feet long and six feet wide with a forty
horsepower outboard engine and eighteen people aboard. The boat
had taken on two feet of water by the time the Coast Guard reached
it. From their vessel, the Coast Guard officials reported seeing
in the bottom of the boat a number of empty fuel containers and one
fifteen gallon container that was 75 percent full. The boat's
outboard engine did not have an internal fuel tank, instead drawing
fuel from a container. After the passengers were taken onto a
Coast Guard vessel, the Coast Guard set fire to the boat in order
to sink it because, government witnesses testified, it was a hazard
to navigation if it remained where it was and they were unable to
safely tow it somewhere else. When interviewed, all eighteen
passengers on the boat said that they had departed from Miches in
the Dominican Republic.
Bresil was indicted on one count of illegally attempting
to return to the United States after being deported for commission
of an aggravated felony. 8 U.S.C. § 1326(a)(2), (b)(2). Bresil
was convicted on the sole count of the indictment and sentenced to
78 months' imprisonment and 36 months' supervised release. This
appeal of his conviction followed.
A. Timing of the Government's Rule 16 Disclosure
The Government first informed Bresil of its intention to
call an expert witness who could testify about the boat's fuel
consumption five days before trial. The expert proposed to
testify, and eventually testified, that, based on the type of boat,
the number of people in it, and the weight of fuel, it would have
traveled at most two and a half to three nautical miles per gallon
of gasoline. St. Maarten is approximately 175 nautical miles from
the eastern coast of Puerto Rico.
Federal Rule of Criminal Procedure 16(a)(1)(G) provides
that "[a]t the defendant's request, the government must give to the
defendant a written summary of any [expert] testimony that the
government intends to use . . . during its case-in-chief at trial."
Bresil had timely requested such a disclosure over a month
previously. In response to the government's disclosure, Bresil
filed an emergency motion seeking a continuance to obtain his own
expert and to further investigate other facts included in the
government's disclosure which he claimed were new to him. The
district court denied Bresil's motion the same day he filed it on
the grounds that "[a]ll the facts movant claims as requiring
additional investigative efforts were easily discernible from day
The government claims that Bresil waived any objection to
its late notice under Rule 16 by not mentioning the rule by name in
his motion seeking a continuance based on the government's notice
that itself referred to Rule 16(a)(1)(G) explicitly. Not
surprisingly, the government cites no precedent for this contention
that a party need expressly cite a rule when that rule's
application is obviously the point of the motion. Bresil made
clear that he was seeking a continuance because he "need[ed], at
least, the services of an expert in navigation/captain to analyze
the evidence and inform us about the capacity of this boat to
travel to St. Maarten." One reason he needed such testimony, his
motion explained, was that the government intended to address this
question with its expert. In sum, Bresil clearly raised and
preserved his argument that the government's designation was filed
at a time that warranted a remedy to avoid prejudice to Bresil.
Because Bresil raised the issue before the district court we review
for abuse of discretion. See United States v. Espinal-Almeida, 699
F.3d 588 , 614 (1st Cir. 2012).1
1 Bresil also suggests that the government's notice, in addition to being untimely, did not provide a sufficient summary of the "witness's opinions, the bases and reasons for those opinions, and the witness's qualifications." Fed. R. Crim. P. 16(a)(1)(G). He does not explain how the government's notice was insufficient,
Rule 16(a)(1)(G) "is intended to minimize surprise that
often results from unexpected expert testimony, [to] reduce the
need for continuances, and to provide the opponent with a fair
opportunity to test the merit of the expert's testimony through
focused cross-examination." Fed. R. Crim. P. 16 advisory
committee's note (1993 Amendment). The fact that Bresil knew that
the boat's fuel usage would be at issue at trial does not excuse
the government of its duty under Rule 16(a)(1)(G) to give timely
notice of its intent to call an expert who would marshal evidence
on that issue in service of the government's case. It is one thing
to be prepared to argue about a fact at trial, but quite another to
prepare to rebut an expert who can testify about implications of
that fact in a way different from a lay witness. Prior to the
government's notice, the government gave no indication that it
would be presenting evidence to the jury that, if the government
witnesses were right about the amount of fuel on board, the boat
had only a fraction of the fuel it needed to make it to St.
The government's notice was plainly untimely because it
is unreasonable to expect a defense attorney in the midst of trial
preparation to drop everything and try to obtain an expert five
days before trial. See United States v. Martinez, 657 F.3d 811 ,
however, and our review of that notice does not show any obvious omissions, much less omissions which could have prejudiced Bresil.
817 (9th Cir. 2011) (government disclosure of expert five days
before trial not "timely" but district court was within its
discretion to deny a continuance where expert's testimony was a
month away); United States v. Hoffecker, 530 F.3d 137 , 184-88 (3d
Cir. 2008) (defendant's disclosure of expert three business days
before jury selection untimely); United States v. Johnson, 228 F.3d
920 , 922, 926 (8th Cir. 2000) (government's disclosure of expert
six days before trial in violation of district court order
untimely). Not knowing when to fold a losing hand, the government
nevertheless suggested at oral argument that because "Puerto Rico
is an island and it's surrounded by ocean" and one of the island's
largest marinas was located "forty-five minutes away" (from the
courthouse, presumably) it would have been "easy" for Bresil's
counsel to obtain an expert on short notice. The government
provides no evidence for its claim that this would be easy,
however, and, having no experience trawling marinas for experts on
outboard motorboat fuel efficiency, we can hardly presume it to be
so. More to the point, the government should not be able to send
defense counsel on such a hunt when defense counsel is trying to
get ready for trial.
The government also suggested at oral argument that
denying the motion for a continuance was appropriate because, by
the time the motion was filed, the government had already flown in
its witnesses, so granting a continuance would have caused
inconvenience for the government and the agencies for which its
witnesses work. In other words, the government claims that it can
create a last minute exigency by violating a rule, and then block
a remedy for the defendant merely because a remedy would be
inconvenient for the government. This argument falls of its own
weight and suggests that the government does not take its
obligations under Rule 16 seriously.
Nonetheless we affirm because "[t]o obtain a reversal
based on a Rule 16 claim, a defendant has to show prejudice."
Espinal-Almeida, 699 F.3d at 614; see United States v. Melucci, 888
F.2d 200 , 203 (1st Cir. 1989) (where results and identity of
handwriting expert were not disclosed until four days before expert
testified at trial, the district court did not abuse its discretion
by admitting the testimony because the defendant did not explain
how late disclosure prejudiced him). With the benefit of hindsight
(and time), it turns out that, when pressed to explain after the
trial what an expert actually could have said that might have
helped his defense, Bresil makes no claim that any expert could
have materially challenged (or, indeed, challenged at all) the
technical claims upon which the testimony of the government's
expert was based. In other words, no defense expert would have
challenged the opinion that, given the factual assumptions made by
the government expert, the boat could not have traveled more than
two-and-one-half to three nautical miles per gallon.
Instead, Bresil suggests that presenting his own expert
would have allowed him to challenge the government expert's
assumptions (about, for instance, the weight of the passengers)
that were incorporated into his calculations about the distance the
boat could travel on a given amount of fuel. But those assumptions
were just that--assumptions dependent on facts to which lay
witnesses testified. No expert--and Bresil does not say he would
have called any additional non-expert witnesses if granted a
continuance--could testify to such facts. And if it is facts, not
expert testimony, that Bresil wishes to have explained, then as the
district court observed in denying the motion to continue, Bresil
had long had ample incentive to challenge the facts. Moreover, as
it turned out, it was highly improbable that any changes in the
facts could have materially changed the conclusion. The type and
size of the boat and its motor were undisputed, as was the number
of passengers. Bresil says that the weight estimates the
government's expert used were high, but there is no claim that
lesser estimates on the margins would have made a material
For these reasons, this is an instance of foul, but no
harm. We caution the government, however, that our holding arises
from the particular facts of this case and we do not lightly find
2 One would need to increase the boat's fuel efficiency six- fold to make it plausible that the boat had enough fuel to make it to St. Maarten.
harmless such a clear violation of Rule 16. By failing to disclose
experts in a timely fashion parties risk not only undesired and
inconvenient continuances but also the exclusion of their expert's
testimony entirely. See Fed. R. of Crim. P. 16(d)(2) ("If a party
fails to comply with this rule, the court may . . . prohibit that
party from introducing the undisclosed evidence . . . .").
B. Due Process Claims
Bresil argues that the government violated his due
process rights by destroying the boat, which contained evidence of
whether or not it had enough fuel to travel to St. Maarten, and by
deporting other passengers who, he argues, would have testified in
his defense that the boat was traveling to St. Maarten. Because
Bresil raised both arguments in the district court, we review de
novo the district court's legal conclusion that Bresil's due
process rights were not violated. See United States v. Teague, 469
F.3d 205 , 210 (1st Cir. 2006).
Bresil's argument concerning the destruction of the boat
fails because he does not show that there was anything else the
Coast Guard could have safely done. He provides no reason to doubt
testimony of government witnesses that it was unsafe for them to
board the boat to conduct a more thorough inventory of its
contents; that, had the boat been left where it was, it would have
been a "hazard of navigation;" and that the Coast Guard vessel was
not technically capable of safely towing it to another location.
Absent any reason to doubt these claims, it is hard to understand
what Bresil thinks the government should have done. Moreover,
because the evidence in the boat was "no more than 'potentially
exculpatory evidence,'" he is only entitled to a new trial if he
can show that the government acted in bad faith by destroying the
boat. Magraw v. Roden, 743 F.3d 1 , 8 (1st Cir. 2014) (quoting
Arizona v. Youngblood, 488 U.S. 51 (1988)). Bresil does not argue,
nor would the record support an argument, that the government acted
in bad faith and so his due process argument concerning the
destruction of his boat fails. See id.
Bresil also argues that the government violated his due
process rights by deporting the other people on the boat who, he
says, would have testified that they were going to St. Maarten.
The boat contained eighteen people when stopped by the Coast Guard.
The record reflects that five of those eighteen people, including
Bresil, gave sworn statements that they were heading to St.
Maarten, while a sixth passenger gave a sworn statement that he was
heading to Puerto Rico. Of the twelve remaining passengers, one,
Bresil's sister, was prosecuted for illegally attempting to enter
the United Sates, but charges against her were dropped (the record
does not reveal why). It is unclear if she was then deported but,
even if she was, she was in the United States, apparently legally,
at the time of Bresil's trial. The parties agree that the
remaining eleven passengers, about whose stated destination the
record is silent, were deported the day the boat was stopped and
there is no reason to think they reentered the United States.
Of the five passengers who claimed to be going to St.
Maarten, one later recanted and pled guilty to illegally attempting
to reenter the United States, expressly admitting that he was going
to Puerto Rico. Excluding Bresil, that left three passengers who
made un-retracted claims that they were headed to St. Maarten. At
some point before Bresil's trial and before Bresil's counsel
interviewed them, the government deported all three.
Bresil argues on appeal that all the deportations
violated his due process rights. However, he limited his argument
in the district court to the deportation of four passengers who
initially gave sworn statements that they were headed to St.
Maarten3 and so review of his due process argument with regard to
the other passengers would, at best, be for plain error. We first
discuss Bresil's preserved due process argument and, finding that
it fails, need not reach his unpreserved argument as it must fail
for the same reason.
Our assessment of Bresil's complaint that the deportation
of the four passengers who initially claimed they were going to St.
Maarten violated his due process rights begins with the Supreme
3 He also argued that the government shouldn't have deported his sister, one of the twelve passengers who did not give sworn statements, who, he says, would also have testified that she was going to St. Maarten. But since the record shows that she was in the United States at the time of his trial this claim was moot.
Court's decision in United States v. Valenzuela-Bernal, 458 U.S.
858 (1982). In that case the Court found that the government did
not violate the due process rights of a man prosecuted for
transporting an illegal alien into the United States when it
deported two other people he transported. Id. at 874.
Valenzuela-Bernal could be read as applying a single-prong test
under which a defendant's due process rights are violated when
witnesses are deported "only if the criminal defendant makes a
plausible showing that the testimony of the deported witnesses
would have been material and favorable to his defense, in ways not
merely cumulative to the testimony of available witnesses" such
that there is "a reasonable likelihood that the testimony could
have affected the judgment of the trier of fact." Id. at 873-74.
Other circuits, however, have added a second, bad-faith
prong to the test by drawing on the Court's statement in
Valenzuela-Bernal that "the responsibility of the Executive Branch
faithfully to execute the immigration policy adopted by Congress
justifies the prompt deportation of illegal-alien witnesses upon
the Executive's good-faith determination that they possess no
evidence favorable to the defendant in a criminal prosecution," id.
at 872, and on Youngblood's characterization, 488 U.S. at 57, of
Valenzuela-Bernal as a case in which the government's good faith is
relevant. See United States v. Damra, 621 F.3d 474 , 485-90 (6th
Cir. 2010); United States v. Chaparro-Alcantara, 226 F.3d 616 , 623-
24 (7th Cir. 2000); United States v. Dring, 930 F.2d 687 , 693 (9th
Cir. 1991); United States v. Iribe-Perez, 129 F.3d 1167 , 1173 (10th
Cir. 1997).4 Under this view, if the government deports a person
with no reason to believe the person would give exculpatory
testimony in some case, the prosecution of that case does not
violate the defendant's due process rights.
We need not decide in this case whether an absence of
government bad faith can defeat Bresil's argument that the
deportations violated his due process rights. At the time the
government deported the other passengers, it presumably knew that
it might charge Bresil with illegally reentering the United States
and that his defense would likely be that he was going to St.
Maarten and not attempting to enter Puerto Rico. It also knew that
four passengers had, at least at one point, claimed to support that
assertion. We therefore assume that Bresil has satisfied any bad
4 While we have never explicitly discussed the role of good faith in applying Valenzuela-Bernal, we have done so in interpreting Youngblood. See United States v. Garza, 435 F.3d 73 , 75-76 (1st Cir. 2006). We have also described "the Supreme Court's jurisprudence [as] divid[ing] cases involving nondisclosure of evidence into two distinct universes . . . ," United States v. Femia, 9 F.3d 990 , 993 (1st Cir. 1993), one beginning with Brady v. Maryland, 373 U.S. 83 (1963), and the other enunciated in Youngblood and California v. Trombetta, 467 U.S. 479 , 485 (1984). In grouping Youngblood and Trombetta together we noted, see Fermia, 9 F.3d at 993, that both rely on Valenzuela-Bernal. See Youngblood, 488 U.S. at 55; Trombetta, 467 U.S. 485 . Unlike Youngblood and Trombetta, Brady has no good faith requirement. Brady, 373 U.S. at 87. Declining to read a bad-faith prong into Valenzuela-Bernal when we have read one into Youngblood and made clear that Youngblood and Valenzuela-Bernal apply the same principle would thus be, at minimum, in tension with our precedent.
faith prong by showing the government's awareness of the potential
exculpatory value of the testimony of the people it was deporting.5
Bresil's appeal therefore turns on whether he has also
established that testimony by those passengers deported to the
Dominican Republic to a "reasonable likelihood . . . could have
affected the judgment of the trier of fact." Valenzuela-Bernal,
458 U.S. at 873-74. We think not, for four reasons.
First, and most importantly, given the direction in which
the boat was traveling (north-east toward Puerto Rico rather than
straight east toward St. Maarten), the location in which it was
intercepted (23 nautical miles from Puerto Rico and more than 175
nautical miles from St. Maarten), the limited fuel on board, and
the fact that it was traveling at night without lights, it is
highly unlikely that any reasonable jury would have believed any
claim that the boat was headed to St. Maarten based merely on self-
serving assertions to that effect from other passengers.6
Second, if it had retained the four passengers Bresil
says it should have retained, a prudent government would also
likely have retained the other passenger who said from the start
that he was going to Puerto Rico and the government would have
5 Because we find that Bresil's argument fails on other grounds, we also need not decide precisely how much knowledge by the government of a witness's exculpatory value would be sufficient to satisfy the defendant's burden under a bad-faith prong. 6 Bresil does not argue that the passengers, had they been called, would have claimed anything other than they were headed to St. Maarten.
likely waited until Bresil's trial to deport the passenger who pled
guilty to attempting to reenter the United States. The credibility
of the testimony of the three passengers who consistently said they
were going to St. Maarten would have been undercut by the testimony
of the other two passengers who admitted to attempting to enter the
United States. In this respect, no passenger testimony was likely
better for Bresil than conflicting passenger testimony.
Third, Bresil could have called as a witness his sister,
who was on the boat and in the United States at the time of his
trial. That he did not suggests he thought her "going to St.
Maarten" story would not have held up to cross-examination.
Fourth, if Bresil is correct that the deportation
wrongfully deprived him of relevant testimony, he could have put
into evidence the favorable hearsay statements of the other
passengers under Federal Rule of Evidence 804(b)(6). True, the
testimony would not have been live for the jury, but it also would
not have been subject to cross-examination by the government. Nor
would the government have likely been able to offer the conflicting
In short, it is hard to see how Bresil would have been
better off if the five passengers (other than Bresil's sister)
whose stated destinations we know (three St. Maartens and two
Puerto Ricos) had testified. No one of these reasons alone
necessarily defeats Bresil's argument. All four considered
together, though, are sufficient to establish the absence of a
reasonable likelihood that testimony by the deported witnesses
could have affected the judgment of the jury in a manner favorable
C. Sufficiency of the Evidence
Bresil's final argument is that there was insufficient
evidence to convict him of attempting to reenter the United States.
For the reasons we have stated above, far from being insufficient,
the evidence was compelling that the boat and its passengers had
embarked for and were heading to Puerto Rico. Bresil, moreover,
owned property in Puerto Rico and demonstrated no ties to St.
Maarten. In short, the circumstances of his capture were such that
a rational factfinder could have found beyond a reasonable doubt
that he intended to reenter the United States.
For the foregoing reasons the judgment of the district
court is affirmed.