US v. De La Cruz-Feliciano

Filing

OPINION issued by Sandra L. Lynch, Chief Appellate Judge; Juan R. Torruella, Appellate Judge and Kenneth F. Ripple*, Appellate Judge. Published. *Of the Seventh Circuit, sitting by designation. [13-1593, 13-1601]

Case: 13-1593

Document: 00116836149

Page: 1

Date Filed: 05/13/2015

Entry ID: 5907370

United States Court of Appeals
For the First Circuit
Nos. 13-1593
13-1601
UNITED STATES OF AMERICA,
Appellee,
v.
JUNIOR H. DE LA CRUZ-FELICIANO,
SANDRI RIJO,
Defendants, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Aida M. Delgado-Colón, U.S. District Judge]

Before
Lynch, Chief Judge,
Torruella and Ripple,* Circuit Judges.

David J. Wenc, on brief, for appellant Junior H. De La
Cruz-Feliciano.
Felicia H. Ellsworth, with whom Eric F. Fletcher, Howard M.
Shapiro, and Wilmer Cutler Pickering Hale and Dorr LLP were on
brief, for appellant Sandri Rijo.
Héctor E. Ramírez-Carbo, Assistant United States Attorney,
with whom Rosa Emilia Rodríguez–Vélez, United States Attorney,
Nelson Pérez–Sosa, Assistant United States Attorney, Chief,

*

 Of the Seventh Circuit, sitting by designation. 

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Appellate Division, and John A. Mathews II, Assistant United
States Attorney, were on brief, for appellee.
___________________
May 13, 2015
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RIPPLE, Circuit Judge.

Junior H. De La Cruz-Feliciano

(“De La Cruz”) and Sandri Rijo were charged with, and convicted
of,

conspiring

to

possess

with

intent

to

distribute

five

kilograms of cocaine and aiding and abetting others to do the
same.

They

now

appeal

their

convictions,

procedural and evidentiary errors.

alleging

various

For the reasons set forth in

this opinion, we affirm the judgments of the district court.
I
BACKGROUND
This case involves a conspiracy to smuggle over 900
kilograms of cocaine into Santa Isabel, Puerto Rico.
Ubiera

and

Juan

Baltazar

orchestrated

the

Eduardo

operation.

They

recruited Francisco “Sandy” Navarro-Reyes (“Navarro”) and Gary
Brito-González

(“Brito”)

to

transport

the

cocaine,

via

motorboat, from a “mother ship” at sea to Puerto Rico.
operation, however, did not run smoothly.

a
The

While at sea, Navarro

and Brito ran out of fuel and were unable to make it back to
shore.

At that point, according to government witnesses, Mr. De

La Cruz was recruited to take another craft out to rendezvous
with and refuel the stranded motorboat.
Mr. De La Cruz successfully delivered the fuel to the
stranded motorboat.

While still at sea, however, his own craft

developed mechanical problems.

Stranded at sea, Mr. De La Cruz

and another individual aboard the vessel used a satellite phone
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to

call

for

help.

According

to

Freddy

Altagracia-Medina

(“Altagracia”), a codefendant, Mr. De La Cruz had requested the
satellite phone before departing in order to communicate with
the stranded motorboat.

The United States Coast Guard found

Mr. De La Cruz’s vessel adrift approximately sixty miles from
shore and rescued its crew.

Coast Guard agents questioned the

men about their satellite phone.

According to Agent Christopher

David Xirau, the men claimed to have tossed the phone overboard
because it had become wet.
Meanwhile,

traveling

in

their

refueled

motorboat,

Navarro and Brito reached the shore with the drugs on January
26, 2012, three days after the planned delivery date.

Awaiting

their arrival were several individuals recruited to help unload
the motorboat.

Mr. Rijo was among this group.

According to

government witnesses, he originally planned to serve only as a
lookout;
instead

however,
ended

due

up

to

helping

the

motorboat’s

late

to

unload

cocaine

the

arrival,
from

he
the

motorboat into a Nissan Armada for transport to San Juan.
Following

a

tip

enforcement

anticipated

surveilling

the

area

from
the

a

confidential

January

throughout

the

26

informant,

delivery

night.

They

and

law
were

observed

several individuals unloading the drugs from the motorboat into
a vehicle, but were unable to visually identify any of those
involved in the operation.

Two other vehicles were present at
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the scene.

Officers stopped the motorboat and three vehicles as

they departed the beach.

Ubiera and two other individuals were

stopped in the Nissan Armada.

Officers found over 900 kilograms

of cocaine and three firearms in the vehicle.

Navarro, Brito,

and two other individuals were stopped in a second vehicle.
Baltazar, Mr. Rijo, and one other person were stopped in a third
vehicle.

Three individuals were stopped in the motorboat.

thirteen

men

were

arrested

immediately.

Officers

All

arrested

Mr. De La Cruz six days later.
On

February

1,

2012,

a

grand

jury

returned

an

indictment, charging Mr. Rijo, Mr. De La Cruz, and their twelve
codefendants

with

conspiring

to

possess

with

intent

to

distribute five kilograms of cocaine, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A)(ii), and 846, and aiding and abetting
the same, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii)
and 18 U.S.C. § 2.1

Everyone except Mr. Rijo and Mr. De La Cruz

accepted plea agreements.

After a trial, the jury found both

Mr. Rijo and Mr. De La Cruz guilty as to all charges.
sentencing, the defendants timely appealed.

2

After

3

The indictment also charged Ubiera and two other defendants
with possession of a firearm in furtherance of a drug
trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A).
2
The district court’s jurisdiction was premised on 18 U.S.C.
§ 3231.
3 Our jurisdiction is secure under 28 U.S.C. § 1291.  
1

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II
DISCUSSION
A.

Mr. De La Cruz
On appeal, Mr. De La Cruz raises only one argument.

It concerns the district court’s questioning of Agent Xirau of
the United States Coast Guard.

At trial, the agent testified

about the rescue of Mr. De La Cruz aboard the vessel that had
gone

adrift.

Agent

Xirau

stated

that

he

had

asked

Mr. De La Cruz and the other individual aboard the vessel about
the satellite phone that they had used to call the Coast Guard.
During the agent’s testimony, on the fourth day of a six-day
trial, the following exchange took place:
THE GOVERNMENT: I will ask you to clarify,
when you refer to one of the
two individuals on the boat,
what specifically as to each
individual
they
said,
if
anything?
AGENT XIRAU:

Roger that.

THE GOVERNMENT: I
was
asking
you
about
Junior De la Cruz, if upon
you questioning him did he
answer anything to you?
AGENT XIRAU:

That was the only question
that
I
remember
him
specifically giving me an
answer.

THE GOVERNMENT: What
about
individual?

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the

other

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AGENT XIRAU:

I don’t remember his name.
When I say they, I could
mean
either
one
or
the
other, I don’t remember who
at time who was the one that
gave answers to the several
questions we asked.

THE COURT:

But were questions generally
answered?

AGENT XIRAU:

Yes, ma’am.

THE COURT:

Any
of
them
express
a
disagreement with what the
other was saying at the
time?

AGENT XIRAU:

No, ma’am.[4]

Defense
questioning.

counsel

objected

to

the

district

court’s

In particular, counsel asserted that the questions

conveyed that the district court was commenting on Mr. De La
Cruz’s silence when speaking with Coast Guard officials.

The

district

not

court

disagreed,

stating

that

the

witness

“is

saying that [Mr. De La Cruz] did not answer, he says he does not
remember

who

disagreement
exchange,

the

answered
with

what.”5

defense

district

Nevertheless,

counsel’s

court

gave

despite

characterization
a

cautionary

of

its
the

instruction,

stating that the jury was “not to draw any inferences from the

R.401 at 69–70. We have added the names of the speakers for
the convenience of the reader.
5 Id. at 71.
4

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questions that [the court] posed.”6

“My only intent here,” the

district

assist

court

situation.

explained,

“was

to

in

clarifying

the

But once again I instruct you that there is no

intent and . . . no inference [should be] drawn from any type of
question I have posed.”7
Following the district court’s cautionary instruction,
Agent Xirau then testified that Mr. De La Cruz and the other
individual aboard the vessel had offered a strange explanation
for no longer possessing the satellite phone that they had used
to call for help.

According to the agent, the men had told him

that they threw the satellite phone overboard because it had
become wet.

The agent described this explanation as “odd.”8

Mr. De La Cruz now contends that the district court’s
questioning of Agent Xirau evinces judicial bias in violation of
his right to due process of law.

“When addressing allegations

of judicial bias, we consider whether the comments were improper
and,

if

so,

whether

the

complaining

party

can

show

serious

prejudice.”

United States v. Ayala-Vazquez, 751 F.3d 1, 24 (1st

Cir.

(internal

2014)

quotation

marks

omitted).

We

assess

statements in light of the record as a whole, not in isolation.
Id.

6
7
8

Id. at 72.
Id. 
Id. at 74–75.
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In assessing this claim of judicial bias, our starting
point is the basic principle that “there is nothing inherently
improper about a judge posing questions at trial.”

Id.

Indeed,

as we have previously observed, a court “has the prerogative,
and at times the duty, of eliciting facts [it] deems necessary
to the clear presentation of issues.”

United States v. Rivera-

Rodríguez, 761 F.3d 105, 111 (1st Cir. 2014) (quoting United
States v. Paz Uribe, 891 F.2d 396, 400 (1st Cir. 1989)); see
also Fed. R. Evid. 614(b) (“The court may examine a witness
regardless of who calls the witness.”).

Such questioning is

permissible “so long as [the court] preserves an attitude of
impartiality and guards against giving the jury an impression
that

the

court

believes

the

defendant

is

guilty.”

Rivera-

Rodríguez, 761 F.3d at 111 (quoting Paz Uribe, 891 F.2d at 400–
01).

Notably, a question is not improper simply because it

clarifies evidence to the disadvantage of the defendant.
United

States

“[T]he

rule

v.

Montas,

concerning

41

F.3d

judicial

775,

781

(1st

interrogation

is

Cir.

See

1994).

designed

to

prevent judges from conveying prejudicial messages to the jury.
It is not concerned with the damaging truth that the questions
might uncover.”

United States v. Martin, 189 F.3d 547, 554 (7th

Cir. 1999).
Even if a comment is improper, however, a defendant
also

must

show

that

the

judicial
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intervention

resulted

in

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“serious prejudice.”
recently

have

Rivera-Rodríguez, 761 F.3d at 112.

observed,

this

burden

is

comparable

demonstrating prejudice under plain error review.
other

words,

“improper

judicial

As we
to

See id.

intervention

In

‘seriously

prejudice[s]’ a defendant’s case when we find that there is a
reasonable

probability

that,

would have been different.”

but

for

Id.

the

error,

the

verdict

The burden of establishing

serious prejudice is more difficult where, as here, a court
follows its comments with an appropriate cautionary instruction.
See Ayala-Vazquez, 751 F.3d at 26 (noting that “within wide
margins,

the

potential

for

or

comments

can

testimony
appropriate

curative

prejudice
be

stemming

satisfactorily

instructions”

(quoting

from

improper

dispelled

United

by

States

v.

Pagán-Ferrer, 736 F.3d 573, 582 (1st Cir. 2013))).
Here, Agent Xirau testified that he could not remember
who, between Mr. De La Cruz and the other individual aboard the
vessel,
phone.

had

answered

his

questions

regarding

the

satellite

The district court then asked whether either of the men

“express[ed] a disagreement with what the other was saying at
the time.”

9

This question, Mr. De La Cruz contends, “conveyed to

the jury that the defendant” was “in tacit agreement with any
answers

to

the

question

about

the

9

Id. at 70.
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satellite

phone,”

thus

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“creat[ing]

‘cover’

for

the

government

to

attribute

the

satellite phone to” him.10
We perceive no error in the district court’s remarks.
The

court’s

inquiry

was

neither

tinged

with

partiality

nor

suggestive of the court’s stance on Mr. De La Cruz’s guilt.
Rather,

this

inquiry

Xirau’s testimony.

merely

clarified

an

ambiguity

in

Agent

That the resulting clarification was adverse

to Mr. De La Cruz’s case is not, without more, indicative of
judicial bias.

See Martin, 189 F.3d at 554.

In any event, the

court’s remarks, which came on the fourth day of a six-day trial
and were followed by an appropriate cautionary instruction, did
not

seriously

prejudice

Mr. De

La

Cruz’s

case.

See

Ayala-

Vazquez, 751 F.3d at 25–26.
B.

Mr. Rijo
Mr. Rijo raises three arguments on appeal.

First, he

contends that the Government violated its duty under Brady v.
Maryland, 373 U.S. 83 (1963), by failing to disclose errors in
an

investigative

statement.

report

prior

to

his

counsel’s

opening

Second, he submits that the district court erred in

admitting evidence of his prior bad acts.

Finally, he contends

that the Government’s closing argument inaccurately described

10

Appellant’s Br. 28. 
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his

role

in

the

offense,

warrants a new trial.11

thus

resulting

in

prejudice

that

We address these issues in turn.
1.

Mr. Rijo first submits that the Government committed a
Brady violation by failing to disclose errors in a DEA Report of
Investigation--known as a “DEA 6”--prior to defense counsel’s
opening statement.

The DEA 6 at issue was prepared by Agent

William Rosario and summarized statements made by Altagracia.
The DEA 6 contained several erroneous statements due to the
agent’s

confusion

Sandy Navarro.

of

In

Sandri

particular,

Rijo,
the

the

report

defendant,
erroneously

with
stated

that Mr. Rijo, rather than Navarro, was on the motorboat with
Brito and had helped to transport the drugs from the “mother
ship” to shore.

Agent Rosario also created handwritten notes

before

the

preparing

DEA

6.

Those

notes,

however,

were

partially in Spanish and contained at least one instance where
the agent again confused Mr. Rijo with Navarro.
The Government turned over the DEA 6 and the agent’s
handwritten notes to defense counsel during pretrial discovery.
The Government also disclosed its plans to call Altagracia as a

Originally, Mr. Rijo also appealed his sentence on procedural
and substantive grounds.
Following oral argument, however,
Mr. Rijo, through his attorney, filed a signed letter asking to
withdraw his sentencing challenge. We grant Mr. Rijo’s request
and thus do not consider this issue further.
11

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witness to testify that Mr. Rijo was on the shore during the
delivery and helped to unload the drugs.
Before

opening

statements,

defense

counsel

informed

the district court and the Government of his intent to attack
Altagracia’s credibility, in part by claiming that Altagracia
had offered three different accounts of the relevant events.
One of those accounts was premised on the erroneous statements
in Agent Rosario’s DEA 6.

Defense counsel never explicitly told

the Government of his intent to rely on those statements.
During

opening

statements,

Mr.

Rijo’s

counsel

presented a defense premised in large part on impeaching the
Government’s three main witnesses, one of whom was Altagracia.
Defense counsel presented his attack on Altagracia’s credibility
as follows:
[Altagracia] has given the government at
least three different versions as to what
happened. The first time he gave a version
to the government when he was originally
caught, he said that he had been fishing
since January 23.
Now, that same witness
did not mention anyone else at that time, he
said I was fishing since January 23, three
days before they were caught.
Then, in
April when he is already negotiating with
the government and trying to get them to
give him a good deal, he says that on
January 22, I took Sandri Rijo to Fajardo,
my client, to Fajardo to get on a boat to
meet the mother boat, or the boat bringing
in the drugs closer to Puerto Rico, to go
there. And he also says that he did not see
Sandri Rijo again until dawn on January 26

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when he came in piloting
brought the drugs in.

the

boat

that

Now, the third version that he
gave, you just heard from the prosecutor.
Notably when he gave the version of April he
did not place Sandri Rijo anywhere else
between the 22 to the 26, because Sandri
Rijo was out on the boat, the mother boat.
What do we say here, as I said you already
heard the government give us a preview as to
that.[12]
After
defense

counsel

counsel

in

opening
about

turn

statements,
the

moved

mistakes

for

a

the
in

Government
its

mistrial,

DEA

6.

claiming

informed
Defense
that

“client[’s] right to a fair trial ha[d] been compromised.”
particular,

defense

Government’s

late

counsel

disclosure

expressed
undermined

concern
the

defense

13

that

his
In
the

strategy

that he had presented to the jury during opening statements.
The

district

court

denied

Mr. Rijo’s

motion.

It

concluded that defense counsel’s ability to present Mr. Rijo’s
defense before the jury had not been impaired because he still
could attack Altagracia’s credibility at trial and could call
Agent Rosario to testify about the DEA 6.

Further, the court

held that Agent Rosario’s handwritten notes made clear that “the
person identified was Sandy N[a]varro,” and that the “inaccuracy
in the DEA 6 . . . could be gathered by reviewing the [agent’s]

12
13

R.385 at 12–13.
R.394 at 5.
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rough notes.”14

Defense counsel did not call Agent Rosario as a

witness at trial.
Mr. Rijo now contends that the Government violated its
duty under Brady by failing to disclose, in a timely manner, the
errors in its DEA 6.

Specifically, Mr. Rijo submits that those

errors are exculpatory because they provide evidence of a sloppy
police investigation.

Although Mr. Rijo’s motion for a mistrial

did not explicitly allege a Brady violation, both parties assume
on appeal that the motion was based on Brady.
Government
waived.

has

not

argued

that

the

claim

was

Indeed, the
forfeited

or

For this reason, we assume that a Brady claim was

properly raised before the district court, see United States v.
Gonyer, 761 F.3d 157, 166 n.4 (1st Cir. 2014), and we review the
district

court’s

determination

for

abuse

of

discretion,

see

United States v. Celestin, 612 F.3d 14, 22 (1st Cir. 2010).
Brady requires that the Government disclose “evidence
favorable to an accused” that is “material either to guilt or to
punishment.”

373 U.S. at 87.

In order to prevail on a Brady

claim, a defendant must show that: (1) evidence was suppressed;
(2)

the

evidence

evidence
was

was

material

favorable
to

to

either

the

guilt

accused;
or

14

Id. at 12, 16.
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(3)

punishment.

Strickler v. Greene, 527 U.S. 263, 281–82 (1999).

and

the
See

With regard

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to

the

first

suppressed

prong,

“if

the

we

do

not

defendant

consider

either

favorable

knew,

or

evidence

should

have

known[,] of the essential facts permitting him to take advantage
of any exculpatory evidence.”

Ellsworth v. Warden, 333 F.3d 1,

6 (1st Cir. 2003) (quoting United States v. LeRoy, 687 F.2d 610,
618

(2d

Cir.

“[e]vidence

1982)).

is

As

‘favorable

for
to

the

and

accused’

the

second

if

third
it

prongs,

is

either

exculpatory or impeaching in nature and ‘material’ if there is a
reasonable probability that, had it been disclosed, the result
of the proceeding would have been different.”

United States v.

Prochilo, 629 F.3d 264, 268 (1st Cir. 2011).
Brady

also

applies

in

cases

where

delays disclosure of relevant evidence.

the

Government

In such cases, the

defendant further must show “that the delay prevented defense
counsel

from

using

the

disclosed

material

effectively

in

preparing and presenting the defendant’s case.”

United States

v. Van Anh, 523 F.3d 43, 51 (1st Cir. 2008).

To carry this

burden, “[t]he defendant must at a minimum make a ‘prima facie’
showing

of

foreclosed.”

a

plausible

strategic

option

which

the

delay

Id.

The parties’ dispute largely centers on the timing of
the Government’s disclosure.
district
notes,

court

disclosed

determined
along

Ruling for the Government, the
that

with

Agent

the

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DEA

Rosario’s
6,

handwritten

adequately

informed

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Mr. Rijo of the errors in the DEA 6.

Further, the court held

that, even if the Government’s disclosure was late, Mr. Rijo was
not prejudiced by the delay because he still could call Agent
Rosario as a witness to testify about the errors at trial.

We

are troubled by the district court’s first rationale, but do
agree that the second has merit.
As we noted earlier, evidence is not suppressed within
the meaning of Brady “if the defendant either knew, or should
have known[,] of the essential facts permitting him to take
advantage of” the evidence.

Ellsworth, 333 F.3d at 6 (emphasis

added) (quoting LeRoy, 687 F.2d at 618).

“The ‘should have

known’ standard refers to trial preparation,” and will generally
impute to the defendant knowledge which he otherwise would have
possessed from a diligent review of the evidence in his control.
See id. at 7; see also United States v. Pandozzi, 878 F.2d 1526,
1529 (1st Cir. 1989) (“Brady does not require the government to
turn over information which, with any reasonable diligence, the
defendant can obtain himself.” (alterations omitted) (quoting
Jarrell v. Balkcom, 735 F.2d 1242, 1258 (11th Cir. 1984))).
Here, the district court faulted Mr. Rijo for failing to notice
incongruities between Agent Rosario’s rough notes and the DEA 6,
which, according to the district court, would have (or at least
should have) alerted him to the errors in the DEA 6.

Although

we agree that a defendant ordinarily should notice errors in an
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investigative

report

when

such

incongruities

are

clearly

present,15 we have significant reservations, in this instance,
about the district court’s conclusion.
are of poor quality.

Agent Rosario’s notes

The agent’s rough handwriting, combined

with the fact that the notes were disclosed in the form of a
darkened photocopy, rendered the material that Mr. Rijo received
almost entirely illegible.
partially in Spanish

Moreover, the agent’s notes were

and contained at least one instance in

which the agent further confused Mr. Rijo with Navarro.
We agree with the district court, however, that the
Government’s late disclosure of this evidence did not prevent
defense

counsel

from

effectively

using

it

at

trial.

The

Government disclosed these errors after opening statements on
the

first

day

of

trial,

Monday,

September

10,

2012.

The

Government rested its case at the end of the day on Friday,
September 14.

The defense rested on Tuesday, September 18,

without calling a single witness.

Neither party called Agent

Rosario to testify even though the district court, in denying
Mr. Rijo’s

motion

for

a

mistrial,

Mr. Rijo that he could do so.

explicitly

had

advised

Defense counsel thus had seven

Cf. Ellsworth v. Warden, 333 F.3d 1, 7 (1st Cir. 2003) (noting
that a defendant’s Brady claim could be barred if he “knew of
[potentially exculpatory evidence] at the time of his trial and
failed to pursue the lead”).
15

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days--three of which were unencumbered by trial--to use this
evidence in preparing and presenting Mr. Rijo’s case.
Mr. Rijo has offered no reason why this interval was
not enough time for defense counsel to make effective use of the
disclosed material, nor could he.
732

F.2d

1004,

1009

(1st

See United States v. Peters,

Cir.

1984)

(holding

that

the

Government’s belated disclosure of impeachment evidence, which
was

“short,

uncomplicated,

and

fairly

predictable,”

did

not

violate Brady where the defendants had “two full days, including
one nontrial day, in which to prepare to cross-examine” the
witness).

To the extent that this evidence was exculpatory, its

relevance to Mr. Rijo’s case was straightforward: it undermined
the

thoroughness

investigation.
inconsistent

with

and
This
the

good

faith

defense
defense

is

of
neither

strategy

the

Government’s

complicated

pursued

Seven days afforded ample time for its preparation.

by

nor

Mr. Rijo.

See id.

On

these facts, we cannot conclude that the Government’s belated
disclosure of this evidence prevented defense counsel from using
it in preparing and presenting Mr. Rijo’s case.
2.
Mr. Rijo next submits that the district court erred,
under Federal Rules of Evidence 403 and 404(b), in admitting (1)
testimony by Altagracia that Mr. Rijo had threatened him while
in prison and (2) testimony by Agent Jesus Marrero that drug- 19 - 

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trafficking organizations would look for “experienced people” to
handle a shipment of the size involved in this case.

We review

for abuse of discretion a district court’s decision regarding
the

admissibility

of

evidence

under

Rules

403

and

404(b).

United States v. Lugo Guerrero, 524 F.3d 5, 14 (1st Cir. 2008).
Rule
wrong,

or

404(b)

other

act

provides
is

not

that

“[e]vidence

admissible

to

of

prove

a

a

crime,

person’s

character in order to show that on a particular occasion the
person acted in accordance with the character.”
404(b)(1).
acts

Fed. R. Evid.

However, this rule permits the admission of prior

evidence

having

“special”

relevance--that

is,

evidence

relevant for a non-propensity-based purpose, “such as proving
motive,

opportunity,

identity,

absence

404(b)(2).16

In

of

intent,
mistake,

assessing

preparation,
or

whether

lack

of

prior

plan,

knowledge,

accident.”
acts

Id.

evidence

is

admissible for such a purpose, we apply a two-step test.

United

States v. Landry, 631 F.3d 597, 601–02 (1st Cir. 2011).

First,

we ask whether the proffered evidence truly possesses “special”
relevance.

Id. at 602.

If it does, we then apply Rule 403,

admitting the evidence so long as its probative value is not
substantially outweighed by the risk of unfair prejudice.

Id.

As we have noted on previous occasions, Rule 404(b)(2)’s
listing of permissible purposes is illustrative rather than
exhaustive.
United States v. Landry, 631 F.3d 597, 602 (1st
Cir. 2011).
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We start with the admission of Altagracia’s testimony.
At trial, Mr. Rijo’s defense counsel cross-examined Altagracia
about his limited relationship with Mr. Rijo.
defense

counsel

Mr. Rijo.
field”

asked

when,

if

ever,

he

In particular,
had

spoken

with

After first describing how they had spoken “in the

during

their

criminal

activities,

Altagracia

then

responded that Mr. Rijo had threatened him while in prison:
When I was at the 2B unit, Mr. Sandri Rijo
yelled at me through the--in other words I
was playing basketball out in the yard and
he yelled at me and said that if I turned
around with the authorities he was going to
have my family kidnaped [sic], that he was
going to also have me beat up and that he
had already given orders to have my family
kidnaped [sic].[17]
Defense counsel objected to this unexpected testimony, but the
district

court

overruled

his

objection,

noting

that

defense

counsel “had plenty of time to stop th[e] witness.”18
The Government contends that the district court did
not err in admitting evidence of Mr. Rijo’s threat, given that
defense counsel was the one who elicited this testimony.
agree.

We

As we have acknowledged previously, a defendant cannot

complain about the admission of testimony directly responsive to
a

question

posed

by

defense

counsel.

See

United

States

v.

Rivera-Rivera, 477 F.3d 17, 20 (1st Cir. 2007) (“Rivera cannot

17
18

R.401 at 21.
Id. at 22.
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persuasively

complain

given

it

that

about

was

the

the

admission

defense--not

of

the

this

evidence,

government--which

elicited it in the course of its cross-examination. . . .”);
United

States

v.

Lizardo,

445

F.3d

73,

84

(1st

Cir.

2006)

(noting that where a defendant elicited challenged testimony on
cross-examination, he could not “contest his own invited error”
on appeal); United States v. Cresta, 825 F.2d 538, 552 (1st Cir.
1987) (“It is apparent from the record that defense counsel did
elicit the response, although perhaps inadvertently, and cannot
now complain of the alleged error.”).

Here, defense counsel

asked Altagracia whether he ever had spoken with Mr. Rijo.
response,

Altagracia

threatened

him

stated

while

in

that

prison.

Mr. Rijo
Because

verbally

this

In
had

answer

was

directly responsive to defense counsel’s open-ended question,
Mr. Rijo cannot now complain of its admission on appeal.
In any event, Altagracia’s testimony would have been
admissible

even

if

elicited

by

the

Government.

As

the

Government correctly notes, evidence that Mr. Rijo threatened a
government witness is probative of his “consciousness of guilt.”
United States v. Burnett, 579 F.3d 129, 133 (1st Cir. 2009).
“Such threats may imply that the defendant has something to hide
or a desire to cover something up.”

United States v. Rosa, 705

F.2d

(internal

1375,

omitted).

1377

(1st

This

use

Cir.
of

1983)
prior
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acts

quotation

evidence

is

marks

entirely

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permissible under Rule 404(b).

See Burnett, 579 F.3d at 133.

Thus, because Mr. Rijo’s threat is probative in this regard,
Rule 404(b) does not require its exclusion.
Mr. Rijo’s Rule 403 challenge is equally unavailing.
In prior cases involving the application of Rule 403 to evidence
of a defendant’s threats against a government witness, we have
considered a variety of factors, including “whether the jury
heard graphic details of how the threat would be carried out,
whether

the

threat

was

made

as

an

emotional

or

impulsive

reaction, and how important the evidence about the threat was to
the Government’s case.”

19

Id. at 134 (citations omitted).

Here,

the district court certainly did not abuse its discretion in
admitting the evidence.
graphic
threat.

or

sensational
Further,

as

Altagracia’s testimony did not involve
details
we

of

noted

the

content

earlier,

this

of

Mr. Rijo’s

evidence

is

probative of Mr. Rijo’s consciousness of guilt, which, given his
defense that he was essentially in the wrong place at the wrong
time, was highly relevant to the Government’s case.

For these

reasons,

value

we

cannot

conclude

that

the

probative

of

Altagracia’s testimony was outweighed, much less substantially
so, by the risk of unfair prejudice.

19

This list of relevant factors is by no means exhaustive.
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Turning

to

Agent

Marrero’s

testimony,

at

trial

the

agent offered testimony about cocaine sales in Puerto Rico and
the practices of drug smugglers.

In particular, he testified

that a drug-trafficking organization would look for “experienced
people” to handle a shipment of the size involved in this case.20
Mr. Rijo contends that this testimony ran afoul of Rules 404(b)
and

403

by

implying

trafficking.

that

he

had

prior

experience

in

drug

Because Mr. Rijo did not raise these objections

before the district court, our review is for plain error.

See

United States v. Rodríguez-Adorno, 695 F.3d 32, 38 (1st Cir.
2012).
With respect to his Rule 404(b) objection, Mr. Rijo’s
argument fails at its first step.

Rule 404(b) only applies to

“[e]vidence of a crime, wrong, or other act.”
404(b)(1).

Agent Marrero’s testimony did not reveal a crime,

wrong, or other act committed by Mr. Rijo.
described

Fed. R. Evid.

the

way

generally operate.

in

which

Rather, he merely

drug-trafficking

organizations

As such, his testimony does not fall within

the ambit of Rule 404(b).
In
Agent

his

Marrero’s

Rule

403

testimony

objection,
suggests

Mr. Rijo
that

Mr.

contends
Rijo

was

that
an

experienced drug trafficker, thus giving the impression that he

20

R.405 at 147. 
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had participated in such acts in the past and was likely to do
so in the future.

This argument falls wide of the mark.

The

agent’s testimony simply stated that drug dealers who undertake
sea-to-shore delivery operations realize the high risk of such
an undertaking.

Consequently, they employ only individuals who

are committed to the success of the operation and who have the
experience

necessary

conclusion.
rebutted

to

bring

the

venture

to

a

successful

This testimony was both relevant and probative; it

Mr.

Rijo’s

claim

that

he

was

not

a

member

of

the

conspiracy but rather a mere tag-along or innocent bystander.
The importance of this evidence outweighed any possible unfair
prejudice

that

experience

in

criminal

may
the

history.

have
drug

resulted
trade

The

from

the

necessarily

district

court

implication

indicates
did

not

a

that
prior

abuse

its

discretion in admitting this testimony and certainly did not
commit plain error.
3.
Finally,

Mr. Rijo

contends

that

the

Government’s

closing argument inaccurately described his role in the offense,
thus resulting in prejudice warranting a new trial.

Mr. Rijo’s

argument is premised on the original transcript filed in this
case.

That

Government
“Sandi

transcript

incorrectly

Rijo”

or

shows

referred

“Sandri

Rijo”

four
to

Sandy

during

- 25 - 

instances

its

in

Navarro
closing

which
as

the

either

argument.

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These misstatements, assuming they occurred, portrayed Mr. Rijo
as

considerably

more

involved

in

the

conspiracy

than

the

evidence would otherwise show.
During

the

pendency

of

this

appeal,

the

district

court, acting pursuant to Federal Rule of Appellate Procedure
10(e), granted a motion by the Government to supplement the
record

on

appeal

with

a

revised

transcript.

This

revised

transcript, which the court reporter had certified and filed
with the district court nearly nine months earlier, indicates
that

the

Mr. Rijo

Government
during

its

did

not

closing

in

fact

argument.

confuse
The

Navarro

district

with
court

granted the Government’s Rule 10(e) motion on the same day that
it was filed, without giving Mr. Rijo an opportunity to respond.
Following the district court’s order, Mr. Rijo filed a
supplemental brief in this court asking us to reject the revised
transcript.
district

He also filed a motion for reconsideration in the

court.

In

both

filings,

Mr. Rijo

raised

several

significant arguments attacking the reliability of the revised
transcript.
Federal Rule of Appellate Procedure 10(e) governs the
modification

or

correction

of

the

record

on

appeal.

In

particular, Rule 10(e)(1) provides that, “[i]f any difference
arises about whether the record truly discloses what occurred in
the district court, the difference must be submitted to and
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settled by that court and the record conformed accordingly.”
Fed. R. App. P. 10(e)(1).
under

Rule

10(e)(1)

A district court’s determination

“is

conclusive

absent

a

showing

intentional falsification or plain unreasonableness.”

of

Pagán-

Ferrer, 736 F.3d at 582 (quoting United States v. Serrano, 870
F.2d 1, 12 (1st Cir. 1989)).
Because Mr. Rijo was not afforded an opportunity to
respond

to

the

Government’s

Rule

10(e)

motion,

the

district

court never heard or considered any of his arguments before
certifying

the

appeal.

In

revised
order

transcript

to

remedy

as

this

part

of

our

deficiency,

record
we

on

stayed

Mr. Rijo’s appeal following oral argument and, while retaining
jurisdiction,
obtaining

a

objection.

remanded
ruling

the

from

case
the

for

the

district

limited
court

on

purpose

of

Mr. Rijo’s

In particular, we ordered the district court to

address Mr. Rijo’s then-pending motion for reconsideration.
On

remand,

the

district

court

ordered

its

court

reporter to submit a certified copy of her stenographer’s notes
from the Government’s closing argument as well as an affidavit
explaining how those notes support the revised transcript.

The

court reporter did so, explaining in her affidavit that her
stenographer’s notes showed that the Government had not confused
Navarro with Mr. Rijo during its closing.

Rather, as the court

reporter explained, she had simply mistyped “Rijo” instead of
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“Navarro” when transcribing her notes several months after
the trial.
After receiving the court reporter’s notes and accompanying
affidavit, the district court held a hearing on Mr. Rijo’s motion
and, shortly thereafter, denied the motion in a written order.

The

court

the

based

its

decision

on

the

court

reporter’s

filings,

parties’ pleadings and exhibits, and the court’s “own recollection
and notes of [Mr. Rijo’s] criminal trial.”21

Based on this evidence,

the court concluded that it was “100 percent certain that the revised
22

transcript [was] correct.”

The district court’s order thoroughly and persuasively
addressed each of Mr. Rijo’s arguments.

In light of the court’s

careful consideration of this issue, we cannot conclude that its
decision to certify the revised transcript as part of the record on
appeal was plainly unreasonable.

See id.

Accordingly, we accept the

revised transcript as part of our record, and thus conclude that the
Government did not confuse Sandy Navarro with Mr. Rijo during its
closing argument.
III
CONCLUSION
The judgments of the district court are affirmed.
AFFIRMED

21
22

R.635 at 9.
Id. at 15.  
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