United States Court of Appeals For the First Circuit
Nos. 14-1692 14-1870 14-1919 14-2098
UNITED STATES OF AMERICA,
MANUEL DE JESÚS ROSARIO-PÉREZ; JORGE GÓMEZ-GONZÁLEZ, a/k/a Jorge Cara de Truck; BRYANT SETIAWAN-RAMOS, a/k/a Chino; and SANTIAGO HERNÁNDEZ-ROSA, a/k/a Chago Coyote,
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Howard, Chief Judge, Torruella and Dyk,* Circuit Judges.
José R. Olmo-Rodríguez for appellant Manuel de Jesús Rosario- Pérez. Rafael F. Castro Lang for appellants Jorge Gómez-González, Bryant Setiawan-Ramos, and Santiago Hernández-Rosa. William A. Glaser, Attorney, Appellate Section, Criminal Division, U.S. Department of Justice, with whom Leslie R. Caldwell, Assistant Attorney General, Sung-Hee Suh, Deputy Assistant
* Of the Federal Circuit, sitting by designation.
Attorney General, Rosa E. Rodríguez-Vélez, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Appellate Chief, G. Andrew Massucco, Assistant United States Attorney, and Elba Gorbea, Assistant United States Attorney, were on brief, for appellee.
April 29, 2020
HOWARD, Chief Judge. After a thirty-five-day trial, a
jury convicted Manuel De Jesús Rosario-Pérez ("Rosario"), Jorge
Gómez-González ("Gómez"), Bryant Setiawan-Ramos ("Setiawan"), and
Santiago Hernández-Rosa ("Hernández") of various drug and weapons
charges. On appeal, these defendants argue that reversible errors
infected nearly every stage and aspect of their trials. Finding
most of the claims without merit, we affirm as to Rosario, Gómez,
and Hernández but vacate Setiawan's convictions and remand his
case for a new trial.
We present the facts in the light most favorable to the
jury verdict, see United States v. Naranjo-Rosario, 871 F.3d 86 ,
90 (1st Cir. 2017), reserving some details to our analysis of the
issues raised on appeal.
The defendants were convicted for their participation in
a massive drug-trafficking conspiracy that operated various drug
distribution points in Puerto Rico, including one in Old San Juan's
La Perla community called "La Boveda." Each defendant was indicted
for conspiracy to distribute drugs within 1,000 feet of a school
(Count One) and possession with intent to distribute heroin (Count
Two), cocaine (Count Three), and marijuana (Count Four). The
indictment also charged everyone but Rosario with carrying and
using firearms in relation to drug trafficking (Count Five).
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The defendants' joint trial featured testimony from
several cooperating witnesses, including "Flow," "Willyboy," and
"Cascote." Rosario, a street-level seller, was convicted on Counts
One, Three,1 and Four, and was sentenced to time served. Setiawan,
a "little boss," was convicted on all counts and sentenced to life
imprisonment plus five years. Hernández, the "owner" of certain
"brands" sold at La Boveda, was convicted on all five counts and
received a 30-year concurrent sentence on Counts One through Four,
plus five years on Count Five. Gómez, the conspiracy leader, was
convicted on Count One and sentenced to a 30-year term of
For ease of exposition, we will first discuss arguments
specific to each individual defendant and then move to those
arguments common to all the appellants.
Rosario assails his conviction on two individual
grounds: evidentiary sufficiency and prejudice from eventually
stricken flight evidence. Neither argument succeeds.
Rosario argues that the evidence was insufficient to
convict him on Count One (conspiracy) and Count Four (marijuana
1As we discuss below, the district court granted Rosario a judgment of acquittal on this count due to an inconsistency in the jury's special verdict.
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possession). "When reviewing the sufficiency of the evidence, we
reverse only if the evidence, viewed in the light most favorable
to the government, could not have persuaded any trier of fact of
the defendant's guilt beyond a reasonable doubt." United States
v. Tavares, 705 F.3d 4 , 17–18 (1st Cir. 2013) (citation omitted).
In other words, "[w]e need not conclude that no verdict other than
a guilty verdict could sensibly be reached but must only be
satisfied that the verdict finds support in a plausible rendition
of the record." United States v. Liriano, 761 F.3d 131 , 135 (1st
Cir. 2014) (citation omitted). When conducting this de novo
review, see id., we will not "weigh evidence or assess
credibility." Tavares, 705 F.3d at 18 .
1. Count One: conspiracy
To convict Rosario of conspiracy to distribute drugs,
"the government must prove beyond a reasonable doubt that an
agreement existed to commit the underlying offense and that
[Rosario] elected to join the agreement, intending that the
underlying offense be committed." Liriano, 761 F.3d at 135 (citing
United States v. Paret-Ruiz, 567 F.3d 1 , 5 (1st Cir. 2009)).
Rosario's agreement to join the conspiracy could have been "express
or tacit" and the government could prove it by "direct or
circumstantial evidence." Id. (citation omitted). "In conducting
our sufficiency analysis, we remain aware that the government may
provide evidence sufficient to convict without showing that: (1)
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each conspirator knew of or had contact with all other members;
(2) each conspirator knew of all the details of the conspiracy or
participated in every act in furtherance of it; or (3) the
conspiratorial 'cast of characters' remained intact throughout the
duration of the entire enterprise." United States v. Cruz-
Rodríguez, 541 F.3d 19 , 28 (1st Cir. 2008).
Rosario argues that there was no evidence linking him to
any of the conspirators: although he was arrested allegedly selling
drugs at La Boveda, the drugs attributed to him did not have a
seal or other marking belonging to one of the "brands" commonly
sold at the drug point. At most, Rosario claims, he was an
independent seller operating at the drug point.
Not so. Although we agree that "'mere presence at the
scene of the crime' or 'mere association with conspirators' is not
enough to establish guilt," United States v. Llinas, 373 F.3d 26 ,
32 (1st Cir. 2004) (quoting United States v. Gómez-Pabón, 911 F.2d
847 , 853 (1st Cir. 1990)), we have long recognized that "the mere
presence defense is not so ubiquitous as to envelop every drug-
trafficking case in which the government lacks direct evidence of
a defendant's complicity," id. (quoting United States v.
Echeverri, 982 F.2d 675 , 678 (1st Cir. 1993)). Like Echeverri
itself, this is a case in which "a defendant's 'mere presence'
argument will fall [because] the 'mere' is lacking." 982 F.2d at
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A reasonable jury could conclude that Rosario sold drugs
at La Boveda and that he did so as part of the conspiracy. One
police officer testified that he had seen Rosario "[s]elling
controlled substances in La Perla, at La Boveda." Another officer
testified that when he arrested Rosario after a chase at La Boveda,
Rosario possessed eighty-one baggies of marijuana, twenty-six
baggies of cocaine, and over $100 in cash. Flow testified that he
had seen Rosario "hanging out" at the drug point.2 And Willyboy
told the jury that he had seen Rosario selling "mostly cocaine and
marijuana" at the drug point on multiple occasions.
Evidence also showed that the conspiracy's leaders
established certain rules for sellers operating at La Boveda, from
establishing standard drug prices to dictating where sellers could
market their drugs. Sellers also pooled their money to hire
lookouts. The jury could have inferred that Rosario, as a seller
at La Boveda, was also subject to these rules and therefore
participated in the conspiracy. See United States v. Mena-Robles,
4 F.3d 1026 , 1032 (1st Cir. 1993) (noting that, in some
conspiracies, "there are circumstances where presence itself
implies participation" (quoting United States v. Ortiz, 966 F.2d
2Rosari o interprets Flow's testimony as establishing that Rosario "was not a member" of the conspiracy. We disagree. Flow never testified that Rosario "was not a member," nor did he contradict other witnesses who testified that Rosario was, in fact, selling as part of the conspiracy.
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707, 712 (1st Cir. 1992))). "While these factual conclusions are
not the only ones the jury could have reached, we find them . . .
reasonable." Id. Therefore, we find the evidence sufficient to
support Rosario's drug-conspiracy conviction.
2. Count Four: marijuana
Rosario claims that the evidence was insufficient on
this count because there is no way that the jury could have
believed testimony that he sold marijuana and cocaine at the drug
point. The jury convicted Rosario of possession with intent to
distribute cocaine but found no amount of cocaine attributable to
him. This inconsistency, Rosario maintains, establishes that the
jury did not believe the witnesses who connected Rosario to
cocaine; so, to the extent that the same witnesses connected
Rosario to marijuana, the jury must have disbelieved them on the
marijuana question too. Once we eliminate this testimony, Rosario
concludes, there is not enough evidence left to convict him on the
substantive marijuana count.
We disagree. Inconsistent verdicts "often are a product
of jury lenity." United States v. Powell, 469 U.S. 57 , 65 (1984).
Therefore, sufficiency review on one count "should be independent
of the jury's determination that evidence on another count was
insufficient." Id. at 67; see also Mena-Robles, 4 F.3d at 1031 ("[T]he jury is empowered to accept or reject, in whole or in part,
any testimony."). Furthermore, Rosario was arrested while fleeing
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La Boveda with eighty-one baggies of marijuana. "[I]ntent to
distribute drugs can legitimately be inferred from factors
[including] quantity . . . ." Echeverri, 982 F.2d at 678 . The
evidence was sufficient to support Rosario's conviction on the
substantive marijuana count.
B. Prejudice from stricken flight evidence
Before trial, the court sent Rosario to an inpatient
drug-treatment program. Shortly thereafter, Rosario absconded
from the treatment center and evaded capture for nearly two weeks.
Over Rosario's objection, a deputy marshal testified at trial that
he subsequently found and arrested Rosario. Initially, the
district court indicated that it was planning to instruct the jury
that flight evidence could be probative of consciousness of guilt,
but ultimately it instructed the jury that the marshal's testimony
was "not to be taken into consideration." Moreover, when charging
the jury, the court offered this reminder: "Anything I have
excluded from evidence or ordered stricken and instructed you to
disregard is not evidence. You must not consider such items."
On appeal, Rosario argues that, because the other
evidence against him was so weak, the jury probably convicted him
based on impermissible flight evidence. Not only do we doubt that
the district court abused its discretion by initially admitting
the flight evidence, see United States v. Benedetti, 433 F.3d 111 ,
116 (1st Cir. 2005), but the court also mitigated any potential
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damage with its later curative instruction. As we have recognized
time and again, "within wide margins, the potential for prejudice
stemming from improper testimony or comments can be satisfactorily
dispelled by appropriate curative instructions," even if the
instructions do not follow immediately upon the problematic
remark. United States v. Ayala-Vázquez, 751 F.3d 1 , 26 (1st Cir.
2014) (quoting United States v. Pagán-Ferrer, 736 F.3d 573 , 587
(1st Cir. 2013)).
In light of both the court's instructions and the
evidence against Rosario, which was sufficient to convict even
without the flight evidence, we see no reason to believe that the
jury convicted Rosario based on the stricken flight evidence. See
id. at 25–27 (presumption that jury followed court's curative
instruction is overcome only in "rare circumstances implying
extreme prejudice" (emphasis omitted) (quoting United States v.
Freeman, 208 F.3d 332 , 339 (1st Cir. 2000)).
As part of its conspiracy case, the government presented
evidence that Setiawan shot and killed "Teton," a drug seller
indebted to Setiawan. On appeal, Setiawan claims that the district
court erred by: (1) admitting evidence that Setiawan killed Teton;
(2) excluding evidence that Cascote killed Teton; and (3) making
its sentencing determinations. In short, we conclude that the
district court's decision to admit the murder evidence while
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excluding the exculpatory evidence was not proper and that the
cumulative effect of the decision warrants a new trial. Because we
remand for a new trial, we do not reach Setiawan's sentencing
A. Admitting Murder Evidence
Setiawan argues that the district court constructively
amended the indictment by admitting evidence that he killed Teton.
Essentially, Setiawan argues that he was charged with a conspiracy
to distribute drugs -- not the separate offense of killing someone
during the course of a drug crime -- so evidence of Teton's murder
could not be presented as an overt act of the drug-distribution
conspiracy. Setiawan did not preserve this claim at trial, so as
both parties agree, we review for plain error. See United States
v. Brandao, 539 F.3d 44 , 60 (1st Cir. 2008).
Although Setiawan makes a constructive-amendment
argument, it is unclear whether his complaint would be described
more appropriately as a variance from the indictment. See United
States v. Rodríguez-Rodríguez, 663 F.3d 53 , 58 n.6 (1st Cir. 2008)
("The line [between the two doctrines] is inherently fuzzy.")
(citation omitted). A constructive amendment occurs when the
difference between the indictment and the proof at trial is so
great that the defendant was essentially convicted of a charge for
which he was not indicted; a variance occurs when the charge is
unchanged, but the facts proved at trial are different from those
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alleged in the indictment. See United States v. Fisher, 3 F.3d
456 , 462 (1st Cir. 1993). Ultimately, it does not matter whether
we construe Setiawan's argument as one of constructive amendment
or variance -- neither occurred here.
The introduction of evidence at trial that Setiawan
murdered Teton did not constructively amend the indictment, which
charged Setiawan with, among other things, conspiracy to possess
with intent to distribute controlled substances under 21 U.S.C.
§ 846. The government is not required to allege or prove any overt
act as an element of a § 846 conspiracy. See United States v.
Vega-Figueroa, 234 F.3d 744 , 754 (1st Cir. 2000) (citing United
States v. Shabani, 513 U.S. 10 , 13 (1994)). Therefore, the
government's gratuitous proof of an overt act relevant to the
conspiracy -- Teton's murder -- "does not involve an alleged
constructive amendment of [the indictment] to include an 'offense
not charged by the grand jury.'" United States v. Fornia-Castillo,
408 F.3d 52 , 66 (1st Cir. 2005). "(quoting United States v. Dunn,
758 F.2d 30 , 35 (1st Cir. 1985))."
Setiawan is mistaken in his argument that this is the
first time that murder evidence has been introduced as an overt
act in a drug conspiracy under 21 U.S.C. §§ 841(a)(1) and 846.
We have recognized, but found unavailing, the contention that
admitting this sort of evidence "arguably carrie[s] the risk of
turning a drug conspiracy case into a murder case." United States
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v. Rivera Calderón, 578 F.3d 78 , 99 (1st Cir. 2009). Here, the
murder evidence does "not appear to have been calculated to arouse
the passions of the jury," so its admission is not reversible
error. Id. at 98. Setiawan merely asserts without development
that the murder evidence was unfairly prejudicial. Even if his
argument were not waived, see United States v. Zannino, 895 F.2d
1 , 17 (1st Cir. 1990), after careful review, we note that the
relevant testimony was presented in a manner similar to that
approved of in Rivera Calderón -- the witnesses "described the
murder matter-of-factly, stating that [Teton was] shot but
leaving out graphic details." 578 F.3d at 98 .
Further, "[t]here is no variance" when, as here, a
defendant "does not contend that the government failed to prove
[the indictment's] allegations at trial" but "argues that he was
charged only with [those] acts, and that the government 'varied'
from the indictment by offering additional evidence." United
States v. Innamorati, 996 F.2d 456 , 477–78 (1st Cir. 1993)
(emphasis in original).
In Vega-Figueroa, we rejected a variance claim like
Setiawan's. There, the defendant claimed that the trial evidence
of his involvement in a drug-trafficking conspiracy -- including
his involvement in an uncharged murder -- impermissibly varied
from the indictment, which did not mention the murder. 234 F.3d
at 753 . We determined that there was "no basis" for a variance
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claim because the government was not limited at trial only to those
overt acts alleged in the indictment. Id. at 754. Differently
stated, "[t]he fact that the government proved aspects of the
conspiracy beyond those recited in the indictment . . . simply
does not constitute a variance." Fisher, 3 F.3d at 463 .
Finally, even if there had been a constructive amendment
or variance, Setiawan could not demonstrate prejudice under the
plain-error standard because he does not dispute that he had
advance notice of the murder evidence. See Brandao, 539 F.3d at
62 –63 (finding that the constructive amendment did not "seriously
jeopardize" the defendant's rights when, among other things, he
"was provided adequate notice of the charges against him"); Fornia-
Castillo, 408 F.3d at 67 (concluding that the variance was not
prejudicial when the defendant "had ample notice of and ample
opportunity to prepare to meet the government's evidence before
In Rivera-Donate, for instance, we declined to find a
prejudicial variance when the defendant could not 'credibly claim
surprise' about the government's proof at trial. Id. At 130 (quoting United States v. Marrrero-Ortiz, 160 F.3d 768 , 773 (1st
Cir. 1998)). Setiawan knew that he was under indictment for
participating in a drug-distribution conspiracy, and "he knew that
his central defense needed to be that he was not part of that
[conspiracy]." United States v. Alicea-Cardoza, 132 F.3d 1 , 6
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(1st Cir. 1997). Therefore, he cannot demonstrate prejudice under
the plain-error standard.
B. Excluding Exculpatory Evidence
Setiawan maintains that the district court improperly
excluded evidence supporting his defense that Cascote, rather than
Setiawan, killed Teton. First, Setiawan argues that the district
court improperly excluded hearsay testimony admissible under the
statement-against-interest exception. Second, Setiawan argues
that the district court erred by striking a witness's testimony
following the witness's refusal to answer the prosecution's
questions on cross-examination. We review for abuse of discretion.
See United States v. Monserrate-Valentín, 729 F.3d 31 , 52 (1st
Cir. 2013); United States v. Baskin, 424 F.3d 1 , 3 (1st Cir. 2005).
1. Hearsay statement
Setiawan wanted Luis Rivera-Melendez ("Rivera"), a
codefendant who had pleaded guilty, to testify that he was present
at Teton's murder and that Cascote, not Setiawan, was the killer.
But Rivera invoked the Fifth Amendment and refused to testify.
The district court ruled that Rivera's testimony risked self-
incrimination and deemed Rivera unavailable as a witness. See
Fed. R. Evid. 804(a)(1).
Setiawan then attempted to call a defense attorney,
Miriam Ramos-Grateroles ("Ramos"), who had been present when
Setiawan's attorney interviewed Rivera in prison. Ramos testified
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outside the jury's presence that Rivera told Setiawan's counsel
that he witnessed Cascote shoot Teton at a drug point. Setiawan
argued that Ramos's testimony relaying Rivera's out-of-court
statement was admissible under the statement-against-interest
exception because the statement placed Rivera at a drug point,
exposing him to criminal liability. See Fed. R. Evid. 804(b)(3).
The district court excluded the statement. The court
reasoned that Ramos's testimony would be "inherently unreliable"
because she would not be subject to cross-examination about the
drug-trafficking conspiracy or the murder. The court's ruling did
not depend on either criterion relevant to admitting evidence under
Rule 804(b)(3), namely, that the hearsay statement must be against
the out-of-court declarant's interest and the statement must be
corroborated. See id.
The court's basis for excluding the hearsay statement
i.e., that Ramos would not be subject to cross-examination about
the conspiracy or murder -- was improper. In-court witnesses who
relay hearsay statements are never subject to cross-examination
about the substance of out-of-court statements. The Federal Rules
of Evidence exclude hearsay statements generally, see Fed. R. Evid.
802, in large part because of an opponent's inability to cross
examine the in-court witness on the substance of the out-of-court
statement. See Williamson v. United States, 512 U.S. 594 , 598
(1994). The Rules provide exceptions to admit certain hearsay
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statements, however, because either the substance of the
statement, see, e.g., Fed. R. Evid. 803(4) (statement made for
medical diagnosis or treatment), or the way the declarant makes
the statement, see, e.g., Fed. R. Evid. 803(2) (excited utterance),
provides a measure of reliability sufficient to warrant admission,
even though neither the out-of-court witness nor the in-court
witness is subject to cross-examination on the statement's
substance. See Williamson, 512 U.S. at 598 –99.
Additionally, when the district court excluded the
testimony because it was "inherently unreliable," the court
usurped the jury's role. Reliability and credibility of in-court
witnesses are matters for the jury to determine. See, e.g., United
States v. Barone, 114 F.3d 1284 , 1300 (1st Cir. 1997). In fact,
we have rejected precisely what occurred in this case. In United
States v. Seeley, this court agreed with a Second Circuit decision
holding that Rule 804(b)(3) does not require the trial court to
make a special assessment of the credibility of a witness who
relays an out-of-court declaration against penal interest. See
United States v. Seeley, 892 F.2d 1 , 3 (1st Cir. 1989) (citing
United States v. Katsougrakis, 715 F.2d 769 , 777 (2d Cir. 1983)).
Undoubtedly, a district court may exclude evidence on grounds other
than credibility, see, e.g., Fed. R. Evid. 403, but credibility of
in-court witnesses is exclusively the jury's province, see Seeley,
892 F.2d at 3 . As a result, the district court improperly excluded
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Ramos's testimony when it concluded the testimony would be
"inherently unreliable" because the government would not be able
to cross examine her about the murder or conspiracy. The district
court erred by excluding testimony that should have been admitted
under Rule 804(b)(3).
2. Striking Colon's Testimony
Setiawan's attorney also called David Colon-Geigel
("Colon"), a coconspirator, as a witness to rebut the murder
accusation. In response to questioning from Setiawan's attorney,
Colon explained that he was Cascote's right-hand man, that Cascote
is the godfather of his oldest son, and that Colon sold drugs for
Cascote. Colon also testified that he witnessed Cascote shoot
Teton and that Flow, the government's only purported eyewitness to
the murder, was not near the site of the shooting. After
Setiawan's attorney finished questioning Colon, the three other
defense attorneys each asked whether their clients had any role in
the drug trafficking in La Perla; Colon responded that none of
On cross-examination, the government asked about Colon's
drug-trafficking activities and the defendants' involvement.
Then, the government asked further questions about other members
of the conspiracy who had been indicted in this case and pleaded
guilty, including Flow who had testified that Setiawan shot Teton.
Colon answered the questions. When the government began asking
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about unindicted members of the conspiracy, Colon refused to answer
the questions: "Well, what happens is I don't want to be talking
like this. I don't want to incriminate anyone else." After
dismissing the jury and summoning Colon's attorney, the judge and
attorneys reconvened, at which point the prosecutor explained that
he planned to show Colon one hundred photographs and seven videos
to probe his knowledge of the conspiracy generally covering the
unindicted coconspirators. The government requested that the
district court strike Colon's entire testimony because he was
refusing to answer questions about the conspiracy.
With his attorney present, Colon was asked by the
district court about what questions he intended to answer:
The Court: Sir, you testified and you stated that you were not going to testify anything further relating to any other defendant but these four defendants.
The Witness: Yes.
The Court: Is that still the case?
The Witness: I am not going to testify.
In a bench conference, Colon's attorney stated that "[Colon] has
stated clearly that he [wa]s going to refuse to testify to any
further questions." The district court continued to discuss the
question whether Colon's testimony should be stricken. Colon's
attorney apparently left the courtroom. The district court then
asked Colon two more questions:
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The Court: So that means that you are not going to answer any questions as to Setiawan?
The Witness: No.
The Court: And that means that you are not going to answer any further questions as to any further defendants that are here?
The Witness: I would answer questions if I wasn't asked questions regarding people that are not present here.
Colon's statements were ambiguous about whether he was refusing to
answer questions about only unindicted coconspirators or also
questions involving Teton's murder. Even Colon's "no" answer to
the first question regarding Setiawan is unclear whether he meant
to say he would or would not answer questions about him.
Nonetheless, the district court ordered Colon's testimony stricken,
subject to reconsideration if Colon's attorney "allows him to
talk." The attorney for Colon later reappeared and stated that "I
went to the cellblock and I spoke with David Colon Geigel. He
reiterated his position to testify about anyone." This
representation did little to clarify Colon's intention and appeared
inconsistent with Colon's last statement that "I would answer
questions if I wasn't asked questions regarding people that are not
present here." Nevertheless, the district court made no further
effort to clarify the scope of Colon's refusal.
Despite the ambiguity of Colon's refusal, the district
court granted the government's request to strike his testimony.
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The court initially reasoned that attorneys for the defendants
other than Setiawan opened the door to the conspiracy questions.
Ultimately, however, the court concluded that Setiawan's attorney's
having asked Colon about Cascote and Colon's responses opened up
all questions related to the conspiracy, because Cascote was a
leader of the conspiracy. Further, the court explained, even the
murder-related questioning opened the door for cross-examination
about the entire conspiracy because the murder was part of the
conspiracy. On this basis, the district court struck Colon's entire
testimony, including his direct testimony about Teton's murder.3
"The Sixth Amendment guarantees criminal defendants the
right to present a defense, but that right is subject to the
government's legitimate interest in testing the truth of testimony
offered by the defense through cross-examination." United States
v. Bartelho, 129 F.3d 663 , 673 (1st Cir. 1997). Therefore, "[a]
trial judge may strike a witness's direct testimony if he flatly
refuses to answer cross-examination questions related to the
details of his direct testimony." Id. (internal quotation marks
omitted). But if the prosecution asks about collateral matters -
- matters that are not "of consequence to the case" -- the district
court should "protect the defendant's right to present his defense,
3Striking the entire testimony, the district court instructed Setiawan's attorney: "I am sorry. Appeal the ruling. There you have a very good potential appeal issue."
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if possible." Id. (citing United States v. Gary, 74 F.3d 304 , 310
(1st Cir. 1996); United States v. Morla-Trinidad, 100 F.3d 1 , 5
n.4 (1st Cir. 1996)).
In certain circumstances, a district court may strike a
witness's testimony in its entirety, rather than merely
restricting the scope of cross-examination. See, e.g., United
States v. De La Cruz, 996 F.2d 1307 , 1313 (1st Cir. 1993). But
here, unlike in De La Cruz, "effective government cross-
examination" about Teton's murder would not have been "seriously
impaired" if the prosecutor was not allowed to ask Colon about
nearly one hundred other coconspirators who had no relation to the
murder-related testimony. The prosecutor could still inquire
about Colon's relationships with Setiawan and Cascote and Colon's
version of events on the night of the murder.
Colon's testimony presented the district court with a
challenging situation. Before the government was able to finish
cross examining Colon about Teton's murder, Colon stopped
answering questions. As discussed earlier, it is unclear from the
record whether Colon was refusing to answer questions covering
unindicted members of the conspiracy, a matter collateral to
Teton's murder, or broader questions concerning the murder.
While the murder was part of the conspiracy, the extent
of the conspiracy and the participation, or lack thereof, of
hundreds of coconspirators constitute issues collateral to the
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murder. In other words, the murder is "within the scope" of the
conspiracy, but the conspiracy is not "within the scope" of the
murder, and the coconspirators' participation is not "of
consequence to the resolution of the issue" of who murdered
Teton. United States v. Castro, 129 F.3d 226 , 231 (1st Cir. 1997).
Because the record was unclear whether Colon was refusing to answer
questions relating only to such collateral issues, the district
court clearly erred by striking Colon's testimony without
ascertaining whether his refusal pertained to the murder or not
just collateral matters relating to unindicted coconspirators.
See Bartelho, 129 F.3d at 673 .
C. Cumulative Prejudicial Effect
Because the court admitted evidence that Setiawan
committed the murder, we hold that under the Constitution or,
failing that, under the court's supervisory power to make the rules
of evidence just and fair in application, Setiawan must be
permitted to offer evidence to show that he did not commit the
murder. Under the current record, the district court erred by
precluding Setiawan from doing so by excluding the testimonies of
Ramos and Colon.
In a nutshell, it is not appropriate that prejudicial
and highly inflammatory evidence -- here, that Setiawan killed
Teton in the course of the conspiracy -- could be admitted without
giving Setiawan an opportunity to show by reasonable evidence that
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he did not commit the murder. The rules of evidence are instituted
not for the splendor of their being but rather to make courts
administer fair and just trials. See Fed. R. Evid. 102 ("These
rules should be construed so as to administer every proceeding
fairly, eliminate unjustifiable expense and delay, and promote the
development of evidence law, to the end of ascertaining the truth
and securing a just determination."). Where the stakes are very
high, it is a court's job to make sure that the rules themselves
are not made an instrument of injustice.
We should not be read to overly fault the highly capable
trial judge. In the high-speed context of trial, a trial judge
can do little else than make quick rulings and go where the
proceedings lead him or her. But with the time and space to see
the whole trial in context, we are not merely free but bound to
prevent a manifest injustice. Cf. United States v. Sepulveda, 15
F.3d 1161 , 1195–96 (1st Cir. 1993). And while appeals courts do
not often have to exercise this function, they do it when they
must, offering various explanations depending on what occurred at
the lower-court proceedings. See, e.g., United States v.
Sanabria, 645 F.3d 505 , 516–19 (1st Cir. 2011); United States v.
Dwyer, 843 F.2d 60 , 65 (1st Cir. 1988).
The matter can be put in many different ways, and one
way may be more apt than others depending on the precise issue. A
perfectly admirable example is our ruling in United States v.
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Lombard in which the combined application of individually well-
accepted sentencing doctrines violated the Due Process Clause.
See United States v. Lombard, 72 F.3d 170 , 175–87 (1st Cir. 1995).
The opinion in that case invoked the common-sense adage that the
whole is sometimes greater than the sum of its parts and that the
whole is what matters. See, e.g., id. at 175, 177.
We think the most certain basis for ordering a new trial,
albeit a basis that rarely has to be invoked, is what we have just
said: that reexamined in the leisure of an appeal, to allow
evidence that Setiawan murdered Teton and disallow plausible
evidence that he did not based on erroneous rulings is an
unacceptable result. On that basis, Setiawan's convictions must
be reversed, and the case remanded for a new trial.
Hernández raises one argument specific to his case: that
the district court should have declared a mistrial, or at least
given a curative instruction, after a police officer testified
about a Glock handgun and white powder recovered during a search
of Hernández's home. Hernández neither contemporaneously objected
to the evidence's admission nor moved for a mistrial, so we review
for plain error. See United States v. Walker, 665 F.3d 212 , 229
(1st Cir. 2011) (unpreserved lay opinion objection reviewed for
plain error); United States v. Panet-Collazo, 960 F.2d 256 , 260
(1st Cir. 1992) (same for belated mistrial request).
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At trial, the officer testified that, while searching
Hernández's home pursuant to a warrant, he found "controlled
substances[, i.e.] a white, powdery substance" and a 9mm Glock
hidden in a secret compartment in some furniture.4 Hernández
argues that the officer's statements identifying the white powder
as drugs constituted inadmissible lay-opinion testimony under
Federal Rule of Evidence 701 because the government did not build
a foundation sufficient to establish that the officer could
identify the powder as drugs simply by looking at it.
We need not reach this question, however, because
Hernández cannot establish prejudice under the plain-error
standard. Multiple witnesses testified that Hernández sold
thousands of dollars' worth of heroin every week and that he
carried a handgun at the drug point. We will not find plain error
when "the challenged testimony constituted a tiny part of the
government's case." Walker, 665 F.3d at 230 (further noting that
"it is wildly implausible that the jury would have reached a
different conclusion . . . in the absence of [the challenged]
4We do not address Hernández's other claims of error, which "lack arguable merit," relating to the evidence seized from this search. United States v. Rose, 802 F.3d 114 , 117 (1st Cir. 2015).
- 26 -
Gómez principally argues that the district court
deprived him of his constitutional rights to present a defense and
to a fair trial by refusing to allow the jury to consider
voluminous Spanish-language documents related to his defense that
he was too busy being a community leader to have the time to be a
drug-conspiracy leader. The district court provisionally admitted
the Spanish-language exhibits, delayed jury deliberations for
nearly one week to allow for translation, and ultimately instructed
the jury not to consider the untranslated documents.
Gómez objected at trial, so the government urges us to
apply the abuse-of-discretion standard. See United States v.
Pires, 642 F.3d 1 , 13 (1st Cir. 2011). Under any standard of
review, the district court did not err when it complied with its
statutory duty to refuse to allow the jury to consider untranslated
The Jones Act requires "[a]ll pleadings and proceedings"
in the District of Puerto Rico to be "conducted in the English
language." 48 U.S.C. § 864. We have been clear that this is an
"independent duty of the district court" grounded in a policy of
integrating Puerto Rico with the rest of the United States and
that this duty is "too great to allow parties to convert [the
district] court into a Spanish language court at their whim."
United States v. Millán-Isaac, 749 F.3d 57 , 63 (1st Cir. 2014)
- 27 -
(citation omitted). "[T]he duty of the [district] court to ensure
compliance with the Jones Act is not lessened in cases where
counsel . . . encourages the district court to set aside the
English-language requirement." Id. (citation omitted). Here, the
district court, mindful of its duty, appropriately denied Gómez's
VI. District court's behavior
Collectively, the defendants claim a passel of errors
based on the district court's behavior at trial.6 In short, we
find no reversible error.
A. Reference to a potential appeal
Attempting to resolve a computer glitch affecting
contemporaneous transcription of witness testimony, the district
court told the prosecutor "I know you are satisfied, but if the
record says contrary . . . Boston is going to hear something else,
right? If it goes on appeal." The defendants moved for a mistrial,
arguing that this fleeting reference to a potential appeal signaled
to the jury that the judge believed they were guilty. We review
the district court's denial of the defendants' mistrial motion for
abuse of discretion. Ayala-Vazquez, 751 F.3d at 23 . Upon review,
5We note that Gómez was able to present this theory through multiple witnesses at trial, notwithstanding the documents' exclusion. 6After careful review, we do not address several of these claims, which "lack arguable merit." Rose, 802 F.3d at 117 .
- 28 -
it is clear that the district court sought only to ensure the
accuracy of its record; it did not give "the jury an impression
that the court believe[d] the defendant[s were] guilty." United
States v. Laureano-Peréz, 797 F.3d 45 , 70 (1st Cir. 2015)(citation
omitted). There was no error here.
B. Court's comments at trial
According to the defendants, some of the district
court's comments at trial (and its questioning of witnesses in
particular) "tipped the scales in favor of the prosecution" and
deprived them of a fair trial. We review for abuse of discretion.7
Ayala-Vazquez, 751 F.3d at 23 . In so doing, we must consider
"isolated incidents in light of the entire transcript so as to
guard against magnification on appeal of instances which were of
little importance in their setting." United States v. Candelaria-
Silva, 166 F.3d 19 , 35 (1st Cir. 1999) (quoting United States v.
Montas, 41 F.3d 775 , 779 (1st Cir. 1994)).
"It cannot be gainsaid that [a] fair trial in a fair
tribunal is a basic requirement of due process. Accordingly, a
7Abuse-of-discretion review also applies to Hernández's favoritism argument: that the district court pressured the defense to finish quickly. See United States v. Romero-López, 695 F.3d 17 , 21 (1st Cir. 2012). Such abuse will be "found only where the Court exhibited an unreasonable and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay." Id. (quoting United States v. Mangual-Santiago, 562 F.3d 411 , 429– 30 (1st Cir. 2009)). Upon thorough review, we find no abuse of discretion here.
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trial judge should be fair and impartial in his or her comments
during a jury trial." Ayala-Vázquez, 751 F.3d at 23 –24(alteration
in original) (quoting United States v. de la Cruz-Paulino, 61 F.3d
986 , 997 (1st Cir. 1995)). We recognize, however, that "mere
active participation by the judge does not create prejudice nor
deprive the party of a fair trial." Id. at 24 (quoting Deary v.
City of Gloucester, 9 F.3d 191 , 194 (1st Cir. 1993)). Therefore,
the defendants must both "demonstrate that the trial court's
actions rise to the level of bias," and "meet [their] burden of
demonstrating serious prejudice." Candelaria-Silva, 166 F.3d at
Although our careful review of the briefs and
transcripts leads us to believe that the district court's approach
was evenhanded and thus not improper, cf. United States v. Santana-
Pérez, 619 F.3d 117 , 124–25 (1st Cir. 2010) (holding it improper
to question defendant-witness in a different "tenor" than
prosecution witnesses), we ultimately need not determine the
propriety of each and every comment, because the defendants cannot
show serious prejudice. See Ayala-Vázquez, 751 F.3d at 25 .
The district court's repeated curative instructions were
sufficient to ward off any serious prejudice. See id. at 26 ("We
have long recognized in this Circuit that 'within wide margins,
the potential for prejudice stemming from improper . . . comments
can be satisfactorily dispelled by appropriate curative
- 30 -
instructions.'" (quoting Pagán-Ferrer, 736 F.3d at 587 )). During
its questioning of one witness, for example, the district court
told the jurors that "[they could] throw [the court's questions]
in the wastepaper basket." And when charging the jury, the
district court reiterated that sentiment:
During the course of trial, I occasionally asked questions of a witness in order to bring out facts not fully covered in the testimony. Do not assume that I hold any opinion on the matters to which my questions are related. Remember that at all times, you as jurors are at liberty to disregard all comments of the Court in arriving at your own findings of the facts.
As in Candelaria-Silva, "the strong instructions given by the trial
court during and at the end of the trial . . . eliminated any
conceivable prejudice." 166 F.3d at 36 .
C. Flow's cross-examination
The defendants contend that the district court
impermissibly limited Flow's cross-examination in three areas:
charges pending against him, uncharged murders, and recorded jail
calls. Although the defendants preserved only the second of these
challenges, all three would fail even if preserved. So, favorably
to the defendants, we will review these three areas for abuse of
discretion, while reviewing de novo whether the defendants had "a
reasonable opportunity to impeach" Flow. United States v. Casey,
825 F.3d 1 , 24 (1st Cir. 2016).
The Sixth Amendment guarantees criminal defendants the
right of cross-examination; a district court, however, has
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"considerable discretion to impose reasonable limits" on it. Id.
at 23–24 (citation omitted). "To establish that the district court
has abused its discretion, the defendant[s] must show that the
limitations imposed were clearly prejudicial." United States v.
Ofray-Campos, 534 F.3d 1 , 37 (1st Cir. 2008) (quoting United States
v. Williams, 985 F.2d 634 , 639 (1st Cir. 1993)). "The ultimate
question is whether 'the jury is provided with sufficient
information . . . to make a discriminating appraisal of a witness's
motives and bias.'" United States v. Landrón-Class, 696 F.3d 62 ,
72 (1st Cir. 2012) (quoting DiBenedetto v. Hall, 272 F.3d 1 , 10
(1st Cir. 2001)). We consider the three challenged areas in turn.
1. Pending charges
The district court's restriction of cross-examination
into Flow's pending state-court charges was not clearly
prejudicial. The defendants were able to inform the jury of:
Flow's prior criminal convictions; the existence of Flow's
cooperation agreement with the government (potentially reducing
Flow's incarceration from a term of life to a government-
recommended 87 months); and Flow's personal dislike for the
2. Uncharged murders
Seeking to discredit Flow at trial, the defense implied
that Flow had killed five people, which he denied. At sidebar,
Gómez's counsel claimed to have witnesses who could testify about
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these uncharged murders. The district court ultimately struck
these questions and answers based on Federal Rule of Evidence 608.
On appeal, the defendants argue that "involvement in murders where
there has been no conviction is a proper subject of cross-
examination since it is part of the benefits received by
cooperating." The district court's contrary decision was not an
abuse of discretion. See United States v. Thomas, 467 F.3d 49 , 56
(1st Cir. 2006) (stating that evidence rules allow judge to exclude
extrinsic evidence on a collateral matter, whether offered to prove
character for truthfulness or some other impeachment ground, like
bias or contradiction).
3. Jailhouse calls
The same rationale suffices to dispose of the
defendants' argument that the district court erred by not admitting
certain of Flow's jailhouse phone calls. See United States v.
DeCologero, 530 F.3d 36 , 60 (1st Cir. 2008) (noting judge's
discretion under Federal Rule of Evidence 403 to exclude extrinsic
evidence of witness's bias). In any event, Flow admitted on cross-
examination to many statements contained in the recordings that
informed his motivation to testify, such as: that "these people
from La Perla, they treated me really bad;" that he "hate[d]" some
of the defendants; and that if he "talk[ed]," he expected to get
a sentence between "two, three or four years only." The jury had
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sufficient information to discern Flow's possible bias. There was
no reversible error here.
D. Uvaldo-Gomez's testimony
Manuel Uvaldo-Gomez8, a government informant, testified that
he tried to get involved in the conspiracy by approaching a woman,
Drucaste, who told him about the conspiracy's operations, such as
bringing drugs into the community through the piers. Gómez and
Hernández, both of whom worked at the piers at various times
relevant to the charged conspiracy, objected to these statements'
admission as hearsay. The district court admitted them as
nonhearsay party-opponent statements by a coconspirator under
Federal Rule of Evidence 801(d)(2)(E).
As the statements' proponent, the government must prove
by a preponderance of the evidence that "the declarant," Drucaste,
"and the defendant[s]," Gómez and Hernández, "were members of a
conspiracy when the hearsay statement was made, and that the
statement was in furtherance of the conspiracy." United States v.
Petrozziello, 548 F.2d 20 , 23 (1st Cir. 1977). We review the
defendants' preserved challenges for clear error. United States
v. Ciresi, 697 F.3d 19 , 25–26 (1st Cir. 2012) (citations omitted).
8The witness's name appears as "Osvaldo-Gomes" in the appellants' briefs but as "Uvaldo-Gomez" in the government's brief.
- 34 -
Although a closer question than the government admits,
the district court's determination that Drucaste and the
defendants were members of the same conspiracy was not erroneous.
Because of the deferential standard of review, a defendant seeking
to overturn a trial court's Petrozziello ruling carries a heavy
A finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Where the evidence is susceptible of two plausible interpretations, the trier of fact's choice between them cannot be clearly erroneous.
United States v. Newton, 326 F.3d 253 , 257 (1st Cir. 2003) (quoting
Reich v. Newspapers of New England, Inc., 44 F.3d 1060 , 1080 (1st
"[A] coconspirator's statement, standing alone, is
insufficient to meet the preponderance standard [and] some
extrinsic proof of the declarant's involvement in the conspiracy
[is required]." Id. at 258 (quoting Sepulveda, 15 F.3d at 1181 ).
Such proof exists here: Uvaldo testified to his own knowledge of
Drucaste's involvement in the drug-trafficking conspiracy; indeed,
that is why he went to her to inquire about how he himself could
join the conspiracy. The defendants conceded as much at trial --
their objections concerned not whether Drucaste was a
coconspirator, but whether her statements were in furtherance of
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Drucaste's statements were in furtherance of the
conspiracy because they "tend[ed] to promote one or more of the
objects of the conspiracy." Ciresi, 697 F.3d at 28 (quoting United
States v. Piper, 298 F.3d 47 , 54 (1st Cir. 2002)).9 She told
Uvaldo to talk to "a Dominican who was a runner for Cascote" if he
wanted to "become a pusher." Such a statement "made for the
purpose of inducing or continuing participation in the conspiracy
[is] in furtherance of the conspiracy." Id. at 29 (quoting United
States v. Pelletier, 845 F.2d 1126 , 1128 (1st Cir. 1988)). And
she told Uvaldo that incarcerated conspiracy members' families
would be provided money and that the drugs came in through the
piers. "[S]haring . . . pertinent information about a conspiracy's
mode of operation furthers the conspiratorial ends." Id. (quoting
Sepulveda, 15 F.3d at 1181 ).
VII. Prosecutor's behavior
The defendants collectively raise about a half-dozen
claims of prosecutorial misconduct throughout the trial. We review
preserved claims de novo and unpreserved claims for plain error.
United States v. Sepúlveda-Hernández, 752 F.3d 22 , 31 (1st Cir.
2014) (citations omitted). Either way, we may first consider
whether the government's conduct was, in fact, improper. See
9 For Rule 801's purposes, it matters not that Uvaldo was a government informer when Drucaste spoke to him about the conspiracy. See Ciresi, 697 F.3d at 28 & n.5.
- 36 -
United States v. Duval, 496 F.3d 64 , 78 (1st Cir. 2007). If so,
we will only reverse if the misconduct "so poisoned the well that
the trial's outcome was likely affected." United States v.
Vázquez-Larrauri, 778 F.3d 276 , 283 (1st Cir. 2015) (quoting United
States v. Kasenge, 660 F.3d 537 , 542 (1st Cir. 2011)). Four
factors guide our analysis:
(1) the severity of the prosecutor's misconduct, including whether it was deliberate or accidental; (2) the context in which the misconduct occurred; (3) whether the judge gave curative instructions and the likely effect of such instructions; and (4) the strength of the evidence against the defendant.
Id. (quoting Kasenge, 660 F.3d at 542) (alteration omitted).
In short, we find the well untainted. Most of the
defendants' claims "lack arguable merit," so we do not discuss
them further. Rose, 802 F.3d at 117 . The arguably closer calls,
to which we turn next, miss the mark for reversible error.
A. Withdrawing the Federal Rule of Evidence 404(b) request
The government indicated that it intended to introduce
prior-bad-acts evidence relating to drug-trafficking convictions
against Gómez and Hernández. The district court instructed the
jurors that they were "about to be presented documentary evidence
[that Gómez and Hernández] committed acts similar to those charged
in this case." After a brief recess, the government changed its
mind and told the district court that it would not seek to
introduce this evidence after all. Gómez and Hernández maintain
- 37 -
that the prosecutor committed misconduct by allowing the jury to
hear the judge's instruction and then not presenting the evidence
-- and that this misconduct led the jury to speculate as to the
defendants' previous trafficking activities, thereby leaving them
in a worse position than they would have been in had the actual
evidence been introduced.
We are unconvinced. Assuming only for argument's sake
that withdrawing a valid Rule 404(b) request and not presenting
prior-bad-acts evidence is misconduct, the district court gave two
curative instructions (one immediately after the government
announced that it would not introduce the evidence, and one when
charging the jury). And the defendants concede that the government
"had sufficient direct evidence to obtain a conviction" without
the Rule 404(b) evidence. In these circumstances, there was no
B. Government objections during defense direct examination
Gómez argues that the prosecutor's constant objections
during his direct examination of two defense witnesses disrupted
the testimonies' flow and undermined his case. There was no
misconduct here: the district court sustained nineteen of the
prosecutor's twenty-three objections during the first witness's
direct examination and overruled five of ten objections during the
second witness's direct examination. See Sepúlveda-Hernández, 752
F.3d at 32 (stating that no misconduct when "[m]ost of the
- 38 -
objections . . . were either sustained by the court or elicited
clarifications" and further noting that "the failed
objections . . . do not seem so groundless as to be vexatious").
C. Closing argument
The defendants argue several different theories of
prosecutorial misconduct during the government's closing argument,
none of which constitutes reversible error.
1. Parties' roles
First, the defendants claim that the prosecutor
improperly commented on the parties' roles and strengthened his
personal credibility by, among other things, telling the jury "I
represent the United States government." After carefully
reviewing the record and the parties' briefs, we conclude that the
prosecutor's simple factual statement did not improperly "place
the prestige of [his] office behind the government's case," United
States v. Vizcarrondo-Casanova, 763 F.3d 89 , 95 (1st Cir. 2014)
(quoting United States v. Pérez-Ruiz, 353 F.3d 1 , 9 (1st Cir.
2003)), nor did it improperly describe the parties' roles. Cf.
United States v. Manning, 23 F.3d 570 , 573 n.1 (1st Cir. 1994)
(noting it was improper to "liken [defense attorneys] to
Shakespeare's players, full of sound and fury signifying
- 39 -
The defendants' second claim, that the prosecutor
improperly vouched for the credibility of government witnesses, is
a closer call. Improper vouching can occur when a prosecutor
implies "that the jury should credit the prosecution's evidence
simply because the government can be trusted." Vizcarrondo-
Casanova, 763 F.3d at 95 (quoting Pérez-Ruiz, 353 F.3d at 9 ).
Here, in his rebuttal argument, the prosecutor discussed the
defense's closing arguments relating to the credibility of
They want you to believe the bad things that don't implicate their client, but they want you to know the good things. You makes [sic] that choice. You are the judges. You decide who you want to believe, what you want to believe, and how you want to believe it. But in order to find any of these defendants not guilty, you are going to have to disbelieve all the cooperators. In other words, where are we getting our witnesses if the only witnesses that we can get in this case are all liars?
As in Vizcarrondo-Casanova, we think that the prosecutor
"unwisely put his toes up to the line." 763 F.3d at 96 (finding
no "clear and obvious" error when the prosecutor argued that
government witnesses' inconsistent statements enhanced credibility
because the government could have gotten the witnesses into a room
together and had them create a consistent story). But we recognize
that "[t]he line between the legitimate argument that a witness's
testimony is credible and improper 'vouching' is often a hazy one,
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to be policed by the trial court in the first instance." Id.
(quoting Innamorati, 996 F.2d at 483). And here, the district
court did not sustain the defense objection to the prosecutor's
Even if this argument were improper, it did not likely
affect the trial's outcome, so it would not warrant reversal.
First, any misconduct was not severe: though "one might read into
the rebuttal here a suggestion that the government itself concluded
that the stories were credible," id., this is a far cry from the
sorts of credibility arguments that merit reversal. See Vázquez-
Larrauri, 778 F.3d at 284 (collecting cases). Second, the context
militates against reversal. At closing, the defendants argued
extensively that the government witnesses were "bought and paid
for witnesses" whose testimonies "have to be rejected completely"
because "[t]here is no reason to trust a liar." Cf. Vizcarrondo-
Casanova, 763 F.3d at 96 (noting hesitance to find misconduct when
defense counsel "pretty much invited the rebuttal" by suggesting
that the government's witnesses were liars). Third, not only did
the judge instruct the jury that the lawyers' arguments were not
evidence, but the prosecutor himself, in the very statement
complained of, also told the jurors that they alone were "the
judges" of witness credibility. In these circumstances, any
prosecutorial misconduct did not "so poison the well that the
- 41 -
trial's outcome was likely affected." Vázquez-Larrauri, 778 F.3d
at 283 .
3. Teton's murder
Finally, Gómez and Setiawan argue, albeit with different
points of emphasis, that the prosecutor committed misconduct by
referring to Teton's murder in his closing argument. We can easily
dispose of Gómez's argument. The prosecutor argued that the jury
could find that Gómez could have foreseen that "drug traffickers
would be carrying weapons and doing what drug traffickers do, like
Bryant Setiawan Ramos [sic] and Teton." The prosecutor clarified
on rebuttal that "in no way did [he] suggest that Mr. Jorge Gómez
Gonzalez [sic] was involved in the murder of Teton." The district
court gave a prompt instruction that there was "no evidence that
Jorge Gómez Gonzalez [sic] was anywhere near that overt act." Even
if the statement were improper, this instruction was enough to
cure any prejudice. See Olszewski v. Spencer, 466 F.3d 47 , 59–60
(1st Cir. 2006) ("This court has consistently held that where the
prosecutor unintentionally misstates the evidence during closing
argument, a jury instruction ordinarily is sufficient to cure any
potential prejudice, particularly where, as here, the instruction
was given immediately after the statement.") (quoting United
States v. Bey, 188 F.3d 1 , 9 (1st Cir. 1999)) (internal quotation
- 42 -
Setiawan objects, for the first time on appeal, that the
prosecutor repeatedly referred to Teton's murder for the
impermissible purpose of inflaming the jury's passions. In
addition to the remark that Gómez points out, the prosecutor also
said that "Teton is dead. . . . [He is a] victim of drug
trafficking;" and "[one witness] testified that he was there that
evening Bryant Setiawan Ramos [sic] ended the life of another
seller named Teton. And Teton hasn't come back." Although we
vacate Setiawan's convictions on separate grounds, we note that
these comments were not improper because they served a non-
inflammatory purpose. Cf. Arrieta-Agressot v. United States, 3
F.3d 525 , 527–28 (1st Cir. 1993) (citing examples of inflammatory
language). The prosecutor introduced evidence at trial linking
Setiawan to Teton's murder, which was presented as an act in
furtherance of the conspiracy. Therefore, commenting on Teton's
murder at several points in closing argument did not impermissibly
"interject issues broader than [Setiawan's] guilt or innocence."
Id. at 527 (quoting United States v. Machor, 879 F.2d 945 , 956
(1st Cir. 1989)).
In conclusion, we find no basis in the prosecutor's
conduct on which to disturb the convictions.
VIII. Cumulative error
Perhaps sensing that they are fighting a rearguard
action, all of the defendants contend that we must set aside their
- 43 -
convictions on a cumulative-error theory. Because we vacate
Setiawan's convictions for the reasons discussed above, we
consider the cumulative-error theory only as applied to Rosario,
Hernández, and Gómez.
"[C]umulative-error analysis is inappropriate when a
party complains of the cumulative effects of non-errors." United
States v. Stokes, 124 F.3d 39 , 43 (1st Cir. 1997) (citation
omitted). And even if there were a few isolated incidents of
concern during this eight-week trial, "we will order a new trial
on the basis of cumulative error only if multiple errors
synergistically achieve 'the critical mass necessary to cast a
shadow upon the integrity of the verdict.'" Williams v. Drake,
146 F.3d 44 , 49 (1st Cir. 1998) (quoting Sepulveda, 15 F.3d at
1196 ). Therefore, we cannot reverse these convictions on the basis
of cumulative error either.
For the foregoing reasons, we affirm the convictions of
Rosario, Hernández, and Gómez but vacate Setiawan's convictions
and remand his case for proceedings consistent with this opinion.
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