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United States v. Vega

United States Court of Appeals, District of Columbia Circuit

June 24, 2016

United States of America, Appellee
Juan Jose Martinez Vega, Erminso Cuevas Cabrera, Appellants

          Argued December 14, 2015

         Appeals from the United States District Court for the District of Columbia (No. 1:04-cr-00446-51) (No. 1:04-cr-00446-49)

          Richard K. Gilbert, appointed by the court, argued the cause for appellant Martinez Vega. Manuel J. Retureta and Gary M. Sidell, appointed by the court, argued the cause for appellant Cuevas. With them on the briefs was Kristen Grim Hughes.

          Michael A. Levy, Assistant U.S. Attorney, argued the cause for appellee. On the brief were Ronald C. Machen Jr., U.S. Attorney at the time the brief was filed, and Randall W. Jackson and Brian A. Jacobs, Assistant U.S. Attorneys. Elizabeth Trosman, Assistant U.S. Attorney, entered an appearance.

          Before: Brown and Millett, Circuit Judges, and Ginsburg, Senior Circuit Judge.

          PER CURIAM.

         Juan Jose Martinez Vega and Erminso Cuevas Cabrera were indicted with more than 50 other individuals for conspiring to commit crimes associated with the importation, manufacture, and distribution of cocaine into the United States. To date, only Martinez Vega, Cuevas, and one other have stood trial. See United States v. Garcia, 757 F.3d 315 (D.C. Cir. 2014).

         The indicted individuals were allegedly affiliated with the Fuerzas Armadas Revolucionarias de Colombia ("FARC"), a "left-wing guerilla group that has waged a violent insurgency against Colombia's government for much of the last fifty years." Id. at 316. Though it initially eschewed the drug trade as counterrevolutionary, the FARC embraced the manufacture and exportation of cocaine in the early 1980s as a lucrative means to fund its increasingly ambitious military objectives. John Otis, The FARC and Colombia's Illegal Drug Trade, Wilson Center (Nov. 2014), at 3, Otis_FARCDrugTrade2014.pdf. By the 1990s and early 2000s, after the breakup of the famous Medellín and Cali cartels, the FARC began to consolidate its control over the coca fields and cocaine production. Id. at 4.

         Martinez Vega and Cuevas allegedly occupied different roles within the cocaine trade. Martinez Vega's role primarily consisted of exporting cocaine and importing arms. Throughout his association with the FARC, he was allegedly responsible for exporting at least 11, 000 kilograms of cocaine and with supplying the FARC with 250 tons of ammunition, explosives, and weapons. Cuevas, on the other hand, allegedly operated a large cocaine laboratory that produced thousands of kilograms of cocaine paste each week. In addition to supervising that operation, Cuevas allegedly met with FARC officials on several occasions to oversee the shipment of coca base to his laboratory.

         After their capture and extradition to the United States, Martinez Vega and Cuevas were tried for and convicted of violating Title 21 of the United States Code, Sections 812, 952, 959, 960, and 963. Taken together, these sections provide for the punishment of any person who knowingly or intentionally conspires to import, manufacture, or distribute five kilograms or more of cocaine into the United States. The district court then sentenced Martinez Vega and Cuevas to 330 and 348 months' imprisonment, respectively. These defendants come before us now appealing their convictions and sentences.

         Three categories of issues are raised in this appeal: the joint issues, the Martinez Vega-specific issues, and the Cuevas-specific issues. Both Martinez Vega and Cuevas challenge the sufficiency of the evidence, the mens rea jury instructions, and the district court's denial of their motions alleging prosecutorial misconduct. Martinez Vega challenges several evidentiary rulings pertaining to identification evidence, as well as the application of a "managerial" sentencing enhancement. Finally, Cuevas challenges the admission of certain evidence, the adequacy of the district court's curative instruction to the jury regarding stricken testimony, the district court's refusal to permit cross-examination about witnesses wearing ankle monitoring devices, and its application of certain sentencing enhancements. Detailed discussions of the facts, evidence, and standards of review will be set forth as necessary to address each issue Defendants raise.

         I. Joint Issues

         Martinez Vega and Cuevas together raise three arguments for vacating their convictions: (i) the mens rea evidence was insufficient; (ii) the mens rea jury instructions were misleading; and (iii) the Government committed prejudicial prosecutorial misconduct. We address each in turn.

         A. Sufficiency of Evidence

         Defendants argue the evidence at trial was insufficient to prove the mens rea element of their charged offense; that they knew or intended the cocaine would end up in the United States. See 21 U.S.C. § 952(a); id. § 959(a); id. § 960(a)(1), (a)(3). In their view, not only did the Government fail to put on any direct evidence of mens rea, the proffered circumstantial evidence doesn't justify the inference that either of them knew the destination of the cocaine.

         Challenging a jury verdict for insufficient evidence carries with it an "exceedingly heavy burden." United States v. Booker, 436 F.3d 238, 241 (D.C. Cir. 2006); see also United States v. Morris, 576 F.3d 661, 666 (7th Cir. 2009) (describing the burden as a "nearly insurmountable hurdle"). To prevail, Defendants must convince the court that no "rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Stadd, 636 F.3d 630, 636 (D.C. Cir. 2011). We review sufficiency-of-the-evidence claims "in the light most favorable to the government, drawing no distinction between direct and circumstantial evidence, and giving full play to the right of the jury to determine credibility, weigh the evidence and draw justifiable inferences of fact." United States v. Dykes, 406 F.3d 717, 721 (D.C. Cir. 2005).

         We conclude the jury's mens rea determinations were justified by sufficient evidence. The Government demonstrated several facts from which a rational juror could reasonably infer intent or knowledge that the cocaine would end up in the United States. First, it demonstrated that at least half of the cocaine produced in Colombia is exported to the United States, establishing a substantial probability that at least some of the 11, 000 kilograms of cocaine Martinez Vega trafficked or the thousands of kilograms of cocaine paste Cuevas manufactured each week was headed to the United States. Second, several witnesses confirmed that, among the FARC rank-and-file, it was a widespread and generally known fact that the cocaine they handled was destined for the United States. Maria Santiago and Hernan Santiago each testified that the destination of these drugs (the United States) was a topic of discussion among Cuevas's subordinates at the laboratory. And Alexis Perez offered similar testimony with respect to Martinez Vega, that it was "something normal to hear the comments that the coke was coming to the United States because it was said that it is the country that most consumes it." These testimonies justify an inference that those within both Martinez Vega's and Cuevas's operations were generally aware of the intended destination. Third, Martinez Vega and Cuevas had high-level roles in their association with the FARC, which, in conjunction with the previous point, justifies an inference that, given their rank within the organization, they were even more likely to know the destination than their subordinates. Martinez Vega was a leader within the 16th Front of the FARC-he was an important enough leader that the FARC provided security as he conducted his operations. Cuevas was the "general administrator" of a large cocaine laboratory where he supervised about 80 workers and met with FARC officials to coordinate product deliveries.

         These data points justify the jury's inferences that both Martinez Vega and Cuevas knew or intended the drugs would end up in the United States. This is not a close question. In fact, in United States v. Martinez, this court upheld a conviction for conspiracy to import cocaine into the United States against an insufficiency challenge based on evidence that closely mirrors the evidence in this case. 476 F.3d 961, 963 (D.C. Cir. 2007). First, a former DEA Agent testified, based on his extensive experience, that "almost every drug operation that transports Colombian cocaine by land through Central America intends to import the cocaine into the United States." Id. at 969. Second, there was direct evidence that "many of the lower-level individuals involved with the . . . shipment of cocaine knew [it] was headed to the United States." Id. And third, Martinez "supervised many key aspects of the international transportation of this massive shipment of cocaine." Id. at 968.

         In response, Defendants stress a lack of direct evidence of knowledge or intent, but that emphasis is unavailing. Our review of insufficiency claims treats all evidence-direct or circumstantial-the same. See Dykes, 406 F.3d at 721. Moreover, this argument carries even less weight considering their insufficiency claim alleges a lack of direct mens rea evidence. In "most cases in which the defendant's state of mind is at issue, it may be near impossible to establish the requisite mens rea through direct evidence, " and therefore proof must be inferred from circumstantial evidence instead. United States v. Schaffer, 183 F.3d 833, 843 (D.C. Cir. 1999). As we have shown, the proffered circumstantial evidence is sufficient to support the jury's guilty verdicts, and accordingly, we reject Defendants' insufficiency claim.

         B. Jury Instructions

         Martinez Vega and Cuevas also challenge the district court's jury instructions. Specifically, they claim the instructions failed to adequately convey that Defendants "personally intended the cocaine be imported into the United States or personally knew the cocaine would be imported into the United States." Defendants Br. 41. Defendants' argument focuses on the district court's use of a "shorthand" description of the mens rea requirement. In their view, the instructions were "highly ambiguous" and "widen[ed] the meaning of conspiracy" by "minimiz[ing] a defendant's necessary involvement." Id. at 43.

         When reviewing a challenge to jury instructions, "[t]he pertinent question is whether, taken as a whole, the instructions accurately state the governing law and provide the jury with sufficient understanding of those issues and applicable standards." United States v. Wilson, 605 F.3d 985, 1018 (D.C. Cir. 2010). While the propriety of a submitted jury instruction is reviewed de novo, "the choice of language to be used in a particular instruction . . . is reviewed only for abuse of discretion." Joy v. Bell Helicopter Textron, Inc., 999 F.2d 549, 556 (D.C. Cir. 1993).

         The district court's instructions began with a recitation of the charge, which included an accurate description of the "knowing or intending" mens rea requirement. Then, the court broke the Government's burden into two parts. First, the Government was required to demonstrate an "agreement to import . . . or to manufacture and distribute five kilograms or more of cocaine knowing and intending that it would be imported into the United States." Second, the Government was required to demonstrate that Martinez Vega and Cuevas "intentionally joined in that agreement." Explaining further, the district court stated the Government must prove "a defendant participated in the conspiracy with knowledge of its unlawful purposes, and with an intent to aid in the accomplishment of its unlawful objectives." Following this robust description of the Government's burden, the district court concluded with a concise and accurate summary of the mens rea requirement:

Thus with respect to count one, if you find beyond a reasonable doubt that the defendant conspired to import any amount of cocaine into the United States, or to manufacture any amount of cocaine with the intent or knowledge that it would later be imported to the United States, then you should find the defendant guilty. If, however, you find that the government has not proven beyond a reasonable doubt that the defendant conspired to import any amount of cocaine into the United States or to manufacture and distribute any amount of cocaine with the intent or knowledge that it would later be imported to the United States, then you should [find] the defendant not guilty.

         On multiple occasions throughout the instructions, the district court accurately and clearly explained the mens rea requirement. And as we have stated, "[j]ury instructions are proper if, when viewed as a whole, they fairly present the applicable legal principles and standards." Czekalski v. LaHood, 589 F.3d 449, 453 (D.C. Cir. 2009).

         Defendants' concern centers on the district court's shorthand description of the mens rea requirement, "that a defendant participated in the conspiracy with knowledge of its unlawful purposes, and with an intent to aid in the accomplishment of its unlawful objectives." This instruction, however, was immediately preceded by a description of what the conspiracy's unlawful purposes and unlawful objectives were-the importation, manufacture, and distribution of cocaine with knowledge or intent that it end up in the United States. That mens rea language is cumbersome, and the district court's decision to use a shorthand method of referring to it did not render the mens rea instruction ambiguous, especially considering that this shorthand language is bookended by two unmistakably clear and entirely accurate descriptions of the requirement. Jury instructions "must be evaluated not in isolation but in the context of the entire charge." Jones v. United States, 527 U.S. 373, 391 (1999). Taken as a whole, these instructions clearly informed the jurors of the precise nature of the mens rea question before them. Because the mens rea jury instructions unambiguously and accurately reflected the state of the law, we hold the district court did not err.

         C. Prosecutorial Misconduct

         Defendants allege the prosecutor improperly (i) appealed to the jury to act as the "community conscience"; (ii) expressed personal opinion regarding Defendants' guilt; and (iii) discussed the court's overruling of a defense objection during closing arguments. Each of these prosecutorial misconduct claims fail. We address each in turn.

         First, Defendants contend the prosecutor's references to America's drug culture and related problems in its closing summation were unfairly "designed to inflame the passions or prejudices" of jurors. Defendants Br. 47 (quoting United States v. Johnson, 231 F.3d 43, 47 (D.C. Cir. 2000)). Specifically, the prosecutor told the jury that "a lot of the problems here in Washington D.C., in New York, in Detroit where I grew up, can be traced right back to [drug trafficking]." In Defendants' view, the prosecutor perceived the jury "might be [un]interested in Colombia's drug problems, " Defendants Br. 48, which led him to improperly tie the Colombian drug trade to the American drug problem, inviting the jury to act as the "community conscience."

         To be sure, a suggestion that the jury act as the "community conscience" can constitute error. In United States v. Hawkins, our circuit warned it is improper to "substitute emotion for evidence by equating, directly or by innuendo, a verdict of guilty to a blow against the drug problem." 595 F.2d 751, 754 (D.C. Cir. 1978); see also United States v. Solivan, 937 F.2d 1146, 1151 (6th Cir. 1991) (holding an appeal to the jury to act as the community conscience is improper when it is "calculated to incite the passions and prejudices of the jurors"). This caution derives from Viereck v. United States, 318 U.S. 236 (1943), in which the Supreme Court held a prosecutor's appeal to jurors' patriotism during World War II was "wholly irrelevant to any facts or issues in the case, the purpose and effect of which could only have been to arouse passion and prejudice." Id. at 247.

         But, critical to our disposition here, the Hawkins panel held that such erroneous appeals may not warrant reversal "in light of the relative strength of the case against the accused." 595 F.2d at 754. Because "[t]he Government's case against appellant was strong indeed, " and the "instructions given by the trial court sufficiently diluted any prejudice, " the panel held it was not "an occasion on which reversal would be appropriate." Id. at 755; see also United States v. Barnett, No. 97-3091, 1998 WL 203122, at *1 (D.C. Cir. April 8, 1998) (per curiam) ("[A]ppealing to the jury to 'do the right thing' is not clearly erroneous when, as here, the Government couples its argument that the jury should 'do the right thing' with specific references to the evidence in the record. . . . Furthermore, the evidence presented at trial was sufficiently probative of Barnett's guilt that any error that might have occurred was not prejudicial.").

         As it was in Hawkins, so it is here. Even if the prosecutor erred in connecting Martinez Vega's and Cuevas's charges to America's drug problems, the error was harmless because the case against the Defendants was "strong indeed." Hawkins, 595 F.2d at 755. In light of that strong case, and also given the district court's instruction that "the statements and the arguments of the lawyers are not evidence, " the prosecutor's appeal to the jury to act as the "community conscience" does not warrant reversal.

         Second, Defendants contend the prosecutor improperly interjected personal beliefs into his closing statement. "When a prosecutor gives his personal opinion on the credibility of witnesses or the defendant's guilt . . . 'such comments can . . . jeopardize the defendant's right to be tried solely on the basis of the evidence presented to the jury.'" United States v. Hampton, 718 F.3d 978, 983 (D.C. Cir. 2013) (quoting United States v. Young, 470 U.S. 1, 18 (1985)). At various points throughout the prosecutor's summation, he spoke in the "first person singular, " making such statements as, "I think the evidence did prove that . . ."; "I think it is clear . . ."; "But if you consider the recordings, and I think you should, it becomes obvious . . ."; "I don't know if I buy that . . ."; "I'm not sure I buy it. I don't think you should either . . ."; and "I'm not even sure what to make of this argument." Defendants argue these statements violate the Supreme Court's injunction against prosecutors "interjecting personal beliefs." See Young, 470 U.S. at 7-8.

         Two of our sister circuits have directly confronted the question whether speaking in the first person singular is a ground for a new trial. See United States v. Nersesian, 824 F.2d 1294, 1328-29 (2d Cir. 1987); United States v. Carleo, 576 F.2d 846, 851-52 (10th Cir. 1978). Reviewing similar statements as found here, the Nersesian court "stress[ed] that it is a poor practice, one which this court has repeatedly admonished prosecutors to avoid." 824 F.2d at 1328. That said, and despite recognizing "[i]t is well settled that it is improper for a prosecutor to interject personal beliefs into a summation, " the court nonetheless declined to reverse. Id. Viewing the summation "as a whole, " the Second Circuit examined whether the improper language "amount[ed] to unacceptable vouching." Id. Several considerations prompted the court to conclude it did not. For one, the "offending conduct was . . . limited to a relatively small portion of an overall lengthy summation." Id. Moreover, the district court "instruct[ed] the jury that the lawyer's statements were not evidence, " and defense counsel made no "contemporaneous objections." Id. Also, the court concluded "it can fairly be said that appellants' convictions were the result of the jury's assessment of the evidence, not the result of improper argument by the prosecutor." Id.; see also United States v. Restrepo, 547 F.App'x 34, 42 (2d Cir. 2013) (warning prosecutors to avoid first-person formulations but ultimately concluding "there [was] no likelihood that the jury was misled about the argument the prosecutor was making"); but see United States v. Eltayib, 88 F.3d 157, 173 (2d Cir. 1996) (concluding "not all uses of the pronoun 'I' are improper" such as "I suggest that, " which "shie[s] away from an outright endorsement"). In Carleo, the Tenth Circuit charted a similar path. 576 F.2d at 851-52. Deeming improper the prosecutor's first person formulation, the court nonetheless determined the prosecutor "was neither personally vouching for the credibility of the government witness nor personally attacking the credibility of the defendant, " nor was he "attempting to convey to the jury that he somehow possessed information . . . to which the jury was not privy." Id. at 852. In light of these conclusions, the court held the trial court did not abuse its discretion in denying a motion for a new trial. See id.

         We join our sister circuits in admonishing prosecutors to avoid the "use of the personal pronoun 'I.'" Nersesian, 824 F.2d at 1328. It is poor practice and threatens the defendant's right to a fair trial. But as in Nersesian, Restrepo, and Carleo, the prosecutor's remarks here do not constitute reversible error. As noted above, the district court instructed the jury that the "statements and the arguments of the lawyers are not evidence, " and the few offending statements were contained within a very lengthy closing summation of the Government's strong case. While the prosecutor should have avoided the personal pronoun, had he replaced "I" with slightly different phrases like "the evidence shows" or "the record is clear that, " he could have communicated a nearly identical sentiment without any impropriety.[1] Cf. United States v. Eltayib, 88 F.3d 157, 172 (2d Cir. 1996) ("The problem with a prosecutor's use of the pronoun 'I' is that it 'tends to make an issue of [the prosecutor's] own credibility, or to imply the existence of extraneous proof."). Moreover, Defendants' counsel also failed to object to these statements at trial, so our appellate touch is even lighter here than it otherwise might have been. See United States v. Olano, 507 U.S. 725, 732 (1993). Accordingly, we conclude the jury's guilty verdict was a product of the Government's strong case against Martinez Vega and Cuevas, not the prosecutors stray improper remarks.

         Third, Defendants argue that a PowerPoint slide containing a reference to an overruled defense objection constituted prosecutorial misconduct. Even assuming the reference was error, Defendants fail to present any theory whatsoever as to why it prejudiced them. Even their reply brief contains no explanation, despite the Government's argument pointing out this critical defect. Reply Br. at 24. (The entire response: "The Government offers no theory to support presentation of a PowerPoint slide depicting the overruling of a defense objection to the jury. Defendants submit that none exists, especially in light of the district court's midtrial instruction."). Without a showing of "substantial prejudice, " an act of prosecutorial misconduct cannot constitute reversible error. See United States v. Small, 74 F.3d 1276, 1280 (D.C. Cir. 1996). Defendants' failure to show any prejudice, let alone substantial prejudice, is fatal to their prosecutorial misconduct claim.

         II. Issues Raised by Martinez Vega

         Martinez Vega individually challenges several of the district court's rulings pertaining to evidence identifying his involvement in criminal activities. According to Martinez Vega, such evidence was crucial to his eventual conviction because the Government's case against him relied primarily on accepting both that a person nicknamed "Chiguiro" was a significant member of the FARC's 16th Front operation, and that Martinez Vega was that individual.[2] Specifically, Martinez Vega argues that the district court committed reversible error in failing (i) to compel the Government to correct the false testimony of DEA Intelligence Research Specialist Francisco Garrido; (ii) to give "missing-evidence" instructions to the jury regarding photo arrays that had been used with certain witnesses; (iii) to sanction the Government for its failure to timely disclose a photograph identifying another man as "Chiguiro"; and (iv) to admit a prior inconsistent statement by government witness Ignacio Gonzales Jaramillo. Martinez Vega also appeals the district court's application of a "managerial role" sentencing enhancement. We reject all of the evidentiary claims, but vacate and remand Martinez Vega's sentence to the district court for further consideration.

         A. Failure to Correct False Testimony

         Former FARC member and prosecution witness Viviana Ortiz testified on cross-examination that, during an interview at the U.S. Embassy in Bogotá, she was shown some photographs, one of which she identified as Martinez Vega by the nickname "Chiguiro." Defense counsel objected that the prosecution had not previously disclosed Ortiz's photographic identification of Martinez Vega. The prosecutor disclaimed any prior knowledge of the identification, and the district court instructed the Government to "check with your records and your agents to see if . . . somebody showed her a photo, if you have a record of it." S.A. 189-90. The following morning, the prosecutor reported to the court his "suspicion" that Ortiz had been shown photographs by an agent of the Drug Enforcement Agency, but the Government "[didn't] have a record of that." Id. at 212.

         During the defense case, Martinez Vega called Francisco Garrido, a DEA Intelligence Research Specialist, and questioned him about his interviews in Bogotá of former FARC members, including Ortiz. On re-direct, defense counsel confirmed with Garrido that Ortiz had identified Martinez Vega as "Chiguiro." When asked, "But you did not actually show her photographs of Chiguiro, did you?" Garrido responded, "I believe I did. I had a copy of the photo array depicting your client." S.A. 539.

         Martinez Vega's counsel objected that Garrido's testimony was inconsistent with the Government's prior representation that "they did not have anybody who could confirm or deny whether Ms. Ort[i]z was shown some identifications [sic]." S.A. 539-40. The Government denied any inconsistency, differentiating between a lack of records about the identification and Garrido's own recollection of the events. The court stated that Martinez Vega could ask additional questions if he wished to probe Garrido's memory.

         During continued questioning by defense counsel, Garrido confirmed that he had shown Ortiz a photo array and claimed that the photographs "became part of the case folder." S.A. 544-46. At sidebar, defense counsel asked for the photographs shown to Ortiz. The Government responded that Garrido appeared to be testifying to "his belief, " but that "there was only one photo array that was ever created" including Martinez Vega's picture, and Garrido likely "does not have any photo array that is marked by Vivian[a] Ort[i]z, or that he recorded as being a specific one that she identified." Id. at 548.[3]

         In a subsequent hearing outside the presence of the jury, the district court allowed both sides to continue questioning Garrido about the issue. Garrido confirmed that he created only one photo array relating to Martinez Vega, but denied any knowledge as to whether anyone had Ortiz "mark a photo array." S.A. 552. He testified that he did not record or make any notes of Ortiz specifically marking or identifying any photograph in the array. Garrido also admitted that he had "no independent recollection" of whether or not Ortiz was actually shown a photo array; his belief was based on the fact that he had shown the photo array to "numerous people" during the investigation. Id. at 553.

         The next day, Martinez Vega moved to dismiss the case due to the Government's failure to correct Garrido's testimony before the jury. The court denied the motion from the bench, finding that the Government was not "deliberately withholding information that's false or allowing false testimony to go forward uncorrected." J.A. 1675. Martinez Vega raised the issue again in his motion for a new trial. The court once more denied the request, reasoning that, even if Garrido had testified falsely about having shown Ortiz a photo array, such testimony was immaterial ...

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