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United States v. De La Cruz-Feliciano

United States Court of Appeals, First Circuit

May 13, 2015

UNITED STATES OF AMERICA, Appellee,
v.
JUNIOR H. DE LA CRUZ-FELICIANO, SANDRI RIJO, Defendants, Appellants

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

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, Appellate Division, and John A. Mathews II, Assistant United States Attorney, were on brief, for appellee.

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

OPINION

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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, alleging various procedural and evidentiary errors. 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. Eduardo Ubiera and Juan Baltazar orchestrated the operation. They recruited Francisco " Sandy" Navarro-Reyes (" Navarro" ) and Gary Brito-Gonzá lez (" Brito" ) to transport the cocaine, via a motorboat, from a " mother ship" at sea to Puerto Rico. The operation, however, did not run smoothly. 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 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; however, due to the motorboat's late arrival, he instead ended up helping to unload the cocaine from the motorboat into a Nissan Armada for transport to San Juan.

Following a tip from a confidential informant, law enforcement anticipated the January 26 delivery and were surveilling the area throughout the night. They 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 the scene. Officers

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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. All thirteen men were arrested immediately. Officers 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.[2] After sentencing, the defendants timely appealed.[3]

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 ...

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