United States v. Meises

United States Court of Appeals
For the First Circuit

Nos. 09-2235, 09-2239

UNITED STATES OF AMERICA,

Appellee,

v.

JUAN A. MEISES, a/k/a DAVID VAZQUEZ-COSS, a/k/a JUAN A. MIESES,
and JOSE L. REYES-GUERRERO,

Defendants, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Lipez, Leval,* and Thompson, Circuit Judges.

Leslie W. O'Brien for appellant Reyes-Guerrero.
Rafael F. Castro Lang for appellant Meises.
Courtney L. Coker, Assistant United States Attorney, with whom
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-
Sosa, Assistant United States Attorney, Chief, Appellate Division,
and Luke Cass, Assistant United States Attorney, were on brief, for
appellee.

May 13, 2011

*
Of the Second Circuit, sitting by designation.
 LIPEZ, Circuit Judge. Appellants Juan Mieses1 and Jose

Reyes-Guerrero were arrested in a reverse sting operation after

they drove to a sham drug deal, with a third co-defendant, in a

vehicle containing $100,000 in cash.2 A jury found both appellants

guilty of a single drug conspiracy count. On appeal, the pair

claim that their convictions must be vacated because of three

significant errors at trial: (1) the government's use of improper

overview testimony from the lead law enforcement agent in the case,

(2) the indirect admission of the third co-defendant's out-of-court

statement implicating appellants, and (3) the district court's

refusal to allow the jury to hear an audiotape recorded on the day

of their arrests.3 Reyes-Guerrero further asserts that he is

entitled to a judgment of acquittal because the evidence was

insufficient to support the jury's verdict.

As we shall explain, the overview testimony at issue here

was improper and, to its credit, the district court acknowledged

the error when it considered appellants' post-trial motions for

acquittal. See United States v. Reyes-Guerrero, 638 F. Supp. 2d

1
The indictment and other court documents spell "Mieses" as
"Meises," and we do likewise in the official caption of this case.
In the remainder of the opinion, however, we adopt the spelling
used by Mieses in his brief.
2
In a classic sting operation, an undercover agent attempts
to purchase drugs from a suspect. In a reverse sting, agents offer
to sell drugs to their targets. United States v. Pinillos-Prieto,
419 F.3d 61, 64 (1st Cir. 2005).
3
Only Mieses challenges the admission of the audiotape.

-2-
177, 185-90 (D.P.R. 2009). We also conclude that the district

court erred in allowing testimony revealing the co-defendant's

inculpatory statement. Those two significant errors entitle

appellants to a new trial, and we therefore vacate their

convictions and remand for such new proceedings.4

I.

A. Factual Background

The facts underlying appellants' convictions, viewed in

the light most favorable to the jury's verdict, see United States

v. Poulin, 631 F.3d 17, 18 (1st Cir. 2011), are as follows.

Puerto Rico Police Sergeant Roberto Cruz, a member of a

federal drug task force,5 worked undercover in 2007 in an

investigation targeting Genito Toribio-Custodio ("Custodio"), an

alleged trafficker who operated in the Dominican Republic and

Puerto Rico. Also participating in the undercover investigation

was Marcos Antonio Torres, a longtime drug trafficker who had been

a paid government informant since 2005.6 The undercover operation

4
We explain in Section II why we reject Reyes-Guerrero's
sufficiency argument.
5
At the time of the trial in this case, Cruz had been
assigned to the United States Drug Enforcement Administration's
(DEA) Task Force for fourteen years.
6
Torres testified that he began drug trafficking when he was
sixteen and continued until he was arrested about two decades
later.

-3-
ended prematurely when Custodio detected surveillance units and

fled from Puerto Rico to the Dominican Republic.

Seeking to reactivate the investigation the next year,

Cruz instructed Torres to solicit Custodio for a cocaine deal in

Puerto Rico. On June 19, 2008, in the first of a series of

recorded phone calls, Torres informed Custodio that he had 220

kilograms to sell. Initially cautious, Custodio asked Torres if he

still communicated with Cruz, whom Custodio did not trust. Torres

said they were not in touch. Although Custodio originally said he

would travel to Puerto Rico within a few days, he instead arranged

for his "partner" – Dario Pereyra-Rubis ("Rubis") – to carry out

the deal. A few days later, during a meeting in San Juan that

Torres recorded, Rubis expressed interest in buying 150 kilograms

of cocaine and proposed paying for them after his clients paid him.

Torres told Rubis that he could deal only in twenty-five kilogram

amounts, and he would provide the drugs only if Rubis brought

$100,000. Rubis contacted a client by phone to advise that a deal

was in the works, and he then left to consult with the client face-

to-face.

In a follow-up phone call with Custodio, who had already

spoken with Rubis, Torres repeated his refusal to defer payment for

the drugs and offered to accept a $100,000 deposit. In another

phone call the same evening, when Rubis insisted on getting the

drugs without cash down, Torres told Rubis that his buyers should

-4-
come with the money "so that they are present in the negotiation"

and they "know where their money is." Rubis said he would continue

to try to reach an agreement.

Sensing continuing mistrust on the part of Rubis and

Custodio, Cruz arranged for Torres to show Rubis sham kilograms of

cocaine – packages of wood wrapped with the type of tape commonly

used by drug traffickers. Their meeting at a shopping center on

June 26 was videotaped, and Cruz also was on the scene as part of

the surveillance team. Rubis's concerns apparently were resolved

when he saw the "cocaine," and Torres testified that Rubis became

"in a hurry to make the deal."

In a series of conversations between Rubis and Torres on

the morning of June 27, the deal was confirmed for fifteen

kilograms at $14,000 apiece, with $100,000 in cash to be paid on

the spot and the balance due a day later. Torres testified that,

in the first call, Rubis reported that he was "with the people, the

owners of the money with the money; and that he was desperate to

. . . make the deal, and he didn't want the people to get bored and

leave." They agreed to meet at 2 p.m., and in a subsequent call

Torres told Rubis to come to the shopping center where they had

previously met.

DEA Task Force members, including Cruz, set up

surveillance with videotaping equipment near the shopping center.

Agents saw Rubis arrive at the shopping center alone in a green

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Mazda that belonged to appellant Reyes-Guerrero, briefly leave the

area, and then return with Mieses and Reyes-Guerrero in a Ford

minivan. Mieses was driving, Reyes-Guerrero was in the front

passenger seat, and Rubis was sitting in the back. Mieses dropped

Rubis off near where Torres, equipped with a small audio recorder,

was waiting, and then drove on a short distance before parking the

van. When Torres asked why Rubis was late, Rubis replied that he

had arrived earlier, but he needed to wait for "the owners of the

money" to come with the cash. After Torres complained that he did

not want to meet anyone else, Rubis explained that "the people"

would not give the money to him (i.e., Rubis) because they did not

trust him. Asked if the owners were there yet, Rubis said they

were "in their car," and he then escorted Torres to the minivan.

Torres testified that, as they proceeded to the vehicle, Rubis

assured him that these individuals were trustworthy and that he had

previously carried out drug transactions with them.

According to Torres, when he and Rubis arrived at the

passenger side of the van, Reyes-Guerrero rolled down his window

and Rubis briefly introduced the men. Reyes-Guerrero directed them

to "get in" the car, but Torres refused because he feared being

kidnapped. Torres then asked if they were ready; Mieses replied

"yes" and Reyes-Guerrero nodded. Torres asked to see the money,

prompting Mieses to reach behind his seat and, with Reyes-

Guerrero's help, pull out a shoe box. Reyes-Guerrero passed the

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box to Torres, who opened it and asked how much money it contained.

After responding "$100,000," Mieses asked about "the merchandise,"

and Torres told him that it was in his car. Mieses then asked,

"How are we going to do this?" Torres responded that he would

return to his car and drive off, and the others should follow. As

Torres walked away from the minivan, he passed his hand over his

head in a prearranged signal to let Cruz know that he had seen the

money and the deal was underway.

Significantly, although the conversation between Torres

and Rubis in the parking lot was recorded by the device Torres

carried, the exchange among the men at the minivan could not be

heard on the tape. Cruz attributed the glitch to background

traffic noise at that location, and Torres testified that a gap is

not unusual when he carries a recording device. Cruz and the other

Task Force members were too far away from the minivan to hear the

men talking, and the jury thus heard only Torres's account of what

was said there.7

After Torres signaled Cruz, Mieses and Reyes-Guerrero

were quickly arrested, and Rubis, who had tried to flee, was

apprehended several blocks away. A blue Reebok shoe box containing

$100,000 was recovered from the van, and a subsequent inspection of

7
In fact, no transcript was made from any part of that day's
audiotape, and the tape was not played for the jury. Torres's
testimony was thus the only evidence on what was said throughout
the June 27 episode, including during the exchange between Torres
and Rubis before they approached the minivan.

-7-
the vehicle revealed a hidden compartment beneath the rear floor.

Rubis indicated a willingness to cooperate with law enforcement

authorities, and he was interviewed at the DEA offices by Cruz and

another Task Force agent. Cruz testified that, after the

interview, the targets of his investigation changed, and he

reported that Reyes-Guerrero and Mieses were immediately processed

and detained. Rubis, Reyes-Guerrero, and Mieses were all charged

with a single count of conspiracy to possess five or more kilograms

of cocaine with intent to distribute the drugs. See 21 U.S.C. §§

846 and 841(a)(1), (b)(1)(A).

B. Procedural Background

During appellants' five-day trial in February 2009, the

government presented the details of the reverse sting largely

through the testimony of Cruz and Torres. The jury also heard the

audio recordings of the preparatory telephone calls involving

Rubis, Torres, and Custodio and saw the videotapes of the sham

cocaine display and the attempted transaction. Despite defendants'

objections, the court allowed the prosecutor to ask Cruz what role

defendants played within the drug trafficking organization. Cruz

identified Mieses as "one of the buyers," and Reyes-Guerrero as

"the other buyer." Cruz also described them as the "owners of the

money." Mieses and Reyes-Guerrero defended by arguing "mere

presence," attempting to persuade the jury that they were merely

-8-
bystanders to Rubis's drug deal.8 The strategy was unsuccessful,

and both men were found guilty.

In post-trial motions for judgments of acquittal,

appellants challenged the court's instruction on "mere presence"

and asserted that the court erred in allowing Cruz to present

overview testimony that was based on hearsay. They further argued

that the evidence adduced by the government was insufficient as a

matter of law to support the guilty verdicts.

In a thorough and thoughtful opinion, the district court

acknowledged that Cruz's testimony about appellants' roles in the

drug transaction had been improperly admitted, Reyes-Guerrero, 638

F. Supp. 2d at 190, and that the error "may have constituted

sufficient grounds for the granting of a new trial pursuant to a

harmless error standard." Id. at 179 n.1. Because the defendants

had not moved for such relief, however, the court addressed only

their request for acquittal. Id. It concluded that Torres's

testimony alone provided ample support for findings of guilt beyond

a reasonable doubt, id. at 192-93, and it therefore denied the

motions.9

On appeal, appellants raise four arguments. First, they

jointly reiterate their contention that admission of Cruz's

8
Rubis disappeared after posting bond and has not been tried.
9
The court rejected the appellants' claim of instructional
error.

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overview testimony – specifically, his assertions that they played

the role of buyers – was reversible error. Second, they challenge

the admission of Cruz's testimony about his post-arrest interview

with Rubis. They argue that Cruz's revelation that after the

interview the targets of his investigation changed necessarily

implied a statement by Rubis identifying Mieses and Reyes-Guerrero

as co-conspirators in the drug deal. Admission of that implied

out-of-court statement, they assert, violated their rights under

the Confrontation Clause of the Sixth Amendment. Third, Mieses

challenges the court's refusal to allow the jury to hear a portion

of the audio recording made by Torres on June 27. Mieses insists

that the recording was relevant to the jurors' appraisal of

Torres's testimony about the conversation at the minivan and why it

was not captured on the tape. Finally, Reyes-Guerrero renews his

sufficiency argument, which is where we begin our discussion.

II.

Reyes-Guerrero argues that he is entitled to a judgment

of acquittal because a conspiracy charge requires proof of the

defendant's "own words or actions" and the record in this case

involves only "the mouth of the government informant." He asserts

that Torres's uncorroborated testimony is insufficient to support

a finding that Reyes-Guerrero was a knowing and voluntary

participant in a conspiracy, see United States v. Bristol-Mártir,

570 F.3d 29, 39 (1st Cir. 2009), and he insists that the jury could

-10-
properly conclude only that he happened to be present when Rubis

transacted a drug deal.

Reyes-Guerrero undervalues the evidence against him.10

The testimony of a single witness can be enough to support the

government's case, United States v. De La Paz-Rentas, 613 F.3d 18,

24-25 (1st Cir. 2010), and even the uncorroborated testimony of an

informant may suffice "to establish the facts underlying a

defendant's conviction," United States v. Merlino, 592 F.3d 22, 30

(1st Cir. 2010). The jury assesses witness credibility, United

States v. Rivera-Rodríguez, 617 F.3d 581, 596 n.6 (1st Cir. 2010),

and the jurors in this case were properly informed about Torres's

drug-dealing past and cautioned about accepting his testimony.11

Moreover, the government did not rest solely on informant

testimony to rebut Reyes-Guerrero's mere presence defense. The

government also introduced recordings of phone conversations,

videotapes, and Cruz's testimony based on direct surveillance. The

early phone conversations between Torres and Rubis indicated that

10
For purposes of our sufficiency analysis, we do not consider
the testimony of Cruz to which appellants have objected.
11
In its pre-deliberations charge to the jury, the court gave
the following instruction:

You have heard the testimony of Mark Anthony Torres.
He provided evidence under contract agreements with the
Government and received money from the Government in
exchange for providing information. Some people in this
position are truthful when testifying. Still, you should
consider the testimony of Mark Anthony Torres with
particular caution.

-11-
Rubis was acting as a broker for buyers who were reluctant to part

with their cash before obtaining drugs, and the events on the

morning of the scheduled transaction permitted the jury to infer

that appellants were those buyers. Moreover, Rubis reported in one

call that he was with the "owners of the money," and he later

appeared for the deal with Mieses and Reyes-Guerrero – and the

money. Reyes-Guerrero's travel to the scene of the transaction, in

a vehicle containing a hidden compartment suitable for transporting

drugs, was his own conduct that has considerable significance in

light of the other evidence. In addition, Rubis told Torres he

originally had arrived early for the transaction but then was

delayed because he had to wait for the buyers. That explanation as

recounted by Torres – i.e., Rubis's early arrival and subsequent

return – matched the observations of the Task Force agents on the

scene.

The informant testimony, if believed by the jury, was

particularly damaging. Torres testified that Reyes-Guerrero nodded

his head when asked if he was ready to proceed with the deal,

signaling active participation. Although Torres's report that

Reyes-Guerrero had helped to retrieve the box of money from behind

the driver's seat was more ambiguous, it was nonetheless additional

evidence that the jury could have viewed as proof of Reyes-

Guerrero's complicity in the transaction. The jury thus had before

it sufficient evidence pointing to Reyes-Guerrero's guilt.

-12-
 Although a guilty verdict was not inevitable – as we

explain below – our rejection of Reyes-Guerrero's sufficiency claim

is not inconsistent with our decision to vacate appellants'

convictions. Our concerns, and the stakes, are considerably

different when we evaluate the sufficiency of the evidence to

support a jury verdict than when we assess the impact of discrete

evidentiary errors on that verdict. If even the properly admitted

evidence would not permit a reasonable jury to find guilt beyond a

reasonable doubt, the government has failed to prove its case and

the defendant is entitled to acquittal. If, instead, the properly

admitted evidence is sufficient to prove guilt, but other,

erroneously admitted evidence might have influenced the verdict,

our concern is that the defendant was denied a fair trial. The

remedy in such circumstances is a new trial, not acquittal.

Here, taking into account only the evidence whose

admission is not challenged, the record was sufficient for a jury

to conclude beyond a reasonable doubt that Reyes-Guerrero was more

than an innocent bystander to Rubis's transaction. Hence, we

affirm the district court's denial of his motion for acquittal.

III.

Appellants assert three evidence-related errors. Two are

claims of wrongful admission of testimony by Cruz: his overview

testimony identifying appellants as the buyers in the drug deal and

his report about his post-arrest interview with Rubis. The third

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claim, raised only by Mieses, is that the court erred in refusing

to admit a portion of the audiotape recorded on the day of the

attempted cocaine purchase. We discuss the merits of each of these

contentions before turning to the question of harmless error.

A. Cruz's Overview Testimony

In United States v. Flores-de-Jesús, 569 F.3d 8 (1st Cir.

2009), we reviewed at length why the government must be wary of

using a law enforcement agent in a multi-defendant drug trial to

provide an "overview" of the prosecution's case, and we sharply

criticized the U.S. Attorney's Office in Puerto Rico for its

repeated improper use of the practice. See id. at 16-27; see also

United States v. Casas, 356 F.3d 104, 117-20 (1st Cir. 2004). Both

Flores-de-Jesús and our earlier decision in Casas particularly

condemned testimony from an agent, not based on personal knowledge,

describing the roles played in the drug conspiracy by individual

defendants. Flores-de-Jesús, 569 F.3d at 16, 24; Casas, 356 F.3d

at 118-19. Such descriptions amount to impermissible testimony

from the agent "that each of the defendants was guilty of the

conspiracy charged." Casas, 356 F.3d at 119 (quoted in Flores-de-

Jesús, 569 F.3d at 24).

In similar fashion to Flores-de-Jesús and Casas, the lead

law enforcement officer in this case, Agent Cruz, was called as the

first witness at trial. He testified to the step-by-step

progression of the investigation, describing the phone calls and

-14-
meetings that culminated in the arrests at the shopping center. At

the end of the direct examination, after confirming that Cruz had

listened to all of the phone calls and audio recordings, conversed

with and supervised Torres, and watched the meetings between Rubis

and Torres that were videotaped, the prosecutor asked Cruz what

role each individual had played in the conspiracy. Cruz testified

that Rubis was "a broker within the drug trafficking organization,"

Mieses "in this deal was one of the buyers," and Reyes-Guerrero was

"the other buyer."

Flores-de-Jesús was issued approximately four months after the

trial in this case, between appellants' filing of post-trial

motions for judgment of acquittal and the district court's ruling

on the motions. In its decision on the motions, the district court

observed that Flores-de-Jesús had drawn "clear boundaries between

permissible and impermissible 'overview testimony' at the beginning

of trial." 638 F. Supp. 2d at 188 (citing Flores-de-Jesús, 569

F.3d at 19-20). It concluded that, although a case agent may

describe the course of an investigation to provide background

information, Cruz's pronouncement that the defendants were the

buyers was plainly improper. Id. The testimony did not satisfy

the requirements for lay witness testimony under Federal Rule of

Evidence 701, the court held, because it was "not based squarely on

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personal knowledge." Id. at 189.12 Cruz was not a participant in

the attempted drug deal and, "[i]mportantly, . . . was unable to

hear any of the words allegedly spoken by the defendants at the

time the informant approached them to make the drug exchange." Id.

On appeal, appellants argue that the impermissible role-in-

the-offense testimony was reversible error entitling them to a new

trial. The government insists that Cruz's testimony did not

violate the principles outlined in Flores-de-Jesús and Casas

because, unlike the agents in those cases, Cruz directly

participated in every aspect of the investigation. The government

recounts the evidence to which Cruz was directly exposed – the

conversations and meetings between Rubis and Torres, and the

encounter at the van – and argues that Cruz's "testimony about

[appellants'] roles as buyers was based on his perception of events

that he participated in and was therefore proper lay opinion

testimony under Rule 701."

12
Rule 701 provides:

If the witness is not testifying as an expert, the
witness' testimony in the form of opinions or inferences
is limited to those opinions or inferences which are (a)
rationally based on the perception of the witness, (b)
helpful to a clear understanding of the witness'
testimony or the determination of a fact in issue, and
(c) not based on scientific, technical, or other
specialized knowledge within the scope of Rule 702.

Fed. R. Evid. 701.

-16-
 The government is correct that this case differs from Flores-

de-Jesús and Casas. Those cases both involved wide-ranging

overview testimony by law enforcement agents whose descriptions of

the conspiracies at issue relied heavily on information told to

them by others – i.e., on inadmissible hearsay – rather than on

their own personal knowledge. See Flores-de-Jesús, 569 F.3d at 24;

Casas, 356 F.3d at 119.13 By contrast, Cruz played a hands-on role

in nearly every aspect of the investigation underlying this case,

and most of his testimony consisted of describing the sequence of

events that he had seen and heard. Such testimony is permissible

and "valuable to provide background information and to explain how

and why the agents even came to be involved with th[e] particular

defendant[s]." Flores-de-Jesús, 569 F.3d at 19 (internal quotation

marks omitted) (first alteration in original).14

13
Overview evidence often provides an anticipatory summary
of the prosecution's case by previewing the testimony of other
witnesses. See Flores-de-Jesús, 569 F.3d at 16-17. In Casas, the
circumstances were "particularly problematic" because the agent's
testimony "was likely based on the testimony of a cooperating co-
conspirator whom the government chose not to call at trial,"
leaving the defendants unable to cross-examine the cooperator or
"'challenge a conclusion drawn from what he had said.'" Flores-de-
Jesús, 569 F.3d at 24 n.8 (quoting Casas, 356 F.3d at 119).
14
Although testimony explaining why the investigation turned
its focus to a particular defendant is rarely competent evidence on
the principal question of whether the defendant is guilty, it can
be useful to avoid jury confusion and speculation as to why agents
suddenly began to conduct surveillance on the defendant. It can
therefore be acceptable despite its lack of relevance to the
question of guilt or innocence, so long as it does not involve
communicating incompetent and prejudicial information to the jury.
As we shall explain, the problems associated with evidence offered

-17-
 In the way that matters to us here, however, this case is

equivalent to Flores-de-Jesús and Casas. Appellants challenge only

Cruz's testimony announcing their roles in the conspiracy. In

Flores-de-Jesús, we characterized the agent's role-in-the-offense

conclusion as "[t]he most troubling part" of his testimony. See

569 F.3d at 24. We observed that, "[w]hen a law enforcement

witness 'express[es] opinions as to defendants' culpability based

on the totality of information gathered in the course of their

investigation[],' these conclusory statements often involve

impermissible lay opinion testimony, without any basis in personal

knowledge, about the role of the defendant in the conspiracy." Id.

at 19 (quoting United States v. Garcia, 413 F.3d 201, 211 (2d Cir.

2005) (second and third alterations in original)).

Cruz's opinion on the defendants' roles was flawed in part by

just such a lack of personal knowledge. As the district court

pointed out, Cruz did not see or hear the only explicitly

inculpatory conduct attributed to appellants – the interaction of

Mieses and Reyes-Guerrero with Rubis and Torres at the minivan.

Cruz admitted that his knowledge of appellants' interaction with

Rubis and Torres came solely from Torres: "The informant is the

only one that can declare as to what happened there." Inevitably,

Torres's report about what he had observed inside the vehicle – the

to show the context of law enforcement actions can involve
violations of the hearsay rule or the Sixth Amendment. See infra
Part II.B.

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most harmful evidence in the case – was part of Cruz's calculus in

ascribing roles to the defendants in the conspiracy.15

Hence, we agree with the district court that Cruz's challenged

testimony failed, at least in part, to satisfy the requirement that

lay opinions be "rationally based on the perception of the

witness," Fed. R. Evid. 701(a). As the Second Circuit has noted,

the "'traditional objective'" of Rule 701 is "to afford the trier

of fact 'an accurate reproduction of the event' at issue." Garcia,

413 F.3d at 211 (quoting advisory committee note on 1972 Proposed

Rules). Cruz neither saw nor heard the critical episode in the

15
Before eliciting Cruz's opinion on Rubis's and appellants'
roles, the prosecutor engaged in the following exchange with him:

Q: Did you listen to all the calls in this case?
A: Yes, sir.
. . .
Q: Did you have conversations with the informant
[Torres]?
A: Yes, sir.
Q: Did you supervise the informant?
A: Yes, sir.
Q: Did you listen to the audio recordings of any meetings
the informant had with [Rubis]?
A: Yes, sir.
Q: And did you watch the two meetings that we viewed here
today?
A: Yes, sir.

The prosecutor then asked what role each of the three men had
played, "[b]ased on everything you observed." In the context of
the questioning, a jury would almost surely understand that Cruz's
response to this question was informed not only by what he had
"observed," but also by what he had heard in the audio recordings
and what he had learned from his conversations with Torres,
including an account of what happened in the minivan. As we
explain infra, even if that assumption is incorrect, the result
here would be the same.

-19-
investigation, and his opinions as to defendants' roles in the

conspiracy, based in part on Torres's perceptions of the

interaction, were thus inadmissible under Rule 701(a).16

Even if the government could argue that Cruz was capable of

inferring appellants' roles based only on what he had personally

observed, his testimony would still be impermissible because it did

not satisfy Rule 701's requirement that lay opinion evidence be

"helpful to a clear understanding of the witness' testimony or the

determination of a fact in issue." Fed. R. Evid. 701(b). The nub

of that requirement is to exclude testimony where "'the witness is

no better suited than the jury'" to make the judgment at issue,

United States v. Kornegay, 410 F.3d 89, 95 (1st Cir. 2005) (quoting

United States v. Jackman, 48 F.3d 1, 5 (1st Cir. 1995)), providing

"'assurance[] against the admission of opinions which would merely

tell the jury what result to reach,'" United States v. Kaplan, 490

F.3d 110, 118 (2d Cir. 2007) (quoting United States v. Rea, 958

F.2d 1206, 1215 (2d Cir. 1992) (quoting Fed. R. Evid. 704 advisory

committee's note on 1972 Proposed Rules)).

16
Indeed, the government's attempt on appeal to justify Cruz's
testimony as lay opinion within the scope of Rule 701 is
inconsistent with its argument at trial. When the defense objected
to the offer of Cruz's interpretation of the events, the government
responded: "This witness was supervising the informant. He told
him exactly what to do. He was on surveillance many, many times.
He heard the phone calls. . . . So he's a fact witness." Given
Cruz's lack of personal knowledge and other problems discussed
infra, his role-in-the-offense testimony did not qualify as either
fact evidence or proper lay opinion.

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 Cruz had no insight to offer the jurors based on personal

knowledge of the appellants' inculpatory conduct. Like them, he

had to rely on Torres's account of what occurred in the vehicle.

Like them, he heard the audio recordings of the phone calls.

Although he was present at the scene when surveillance videotapes

were recorded, the jurors watched the tapes of those encounters,

allowing them to see what Cruz had seen. Indeed, when asked on

cross-examination why he concluded that Mieses was a buyer, Cruz

responded: "Because Mr. Meises and Mr. [Reyes-]Guerrero were the

two that were in custody of the money at the time of the

intervention. They were the two that were protecting that money so

nothing would happen to it." In other words, Cruz inferred

appellants' roles not from any direct knowledge, but from the same

circumstantial evidence that was before the jury – effectively

usurping the jury's role as fact-finder.17 Moreover, as used by the

government, the testimony amounted to argumentative interpretation.

It was perfectly appropriate for the prosecutor to argue in

summation that the evidence of the defendants' actions and words

supported the inference that they were the buyers. But having Cruz

so testify amounted to simply dressing up argument as evidence.

17
Notably, Cruz's explanation relied on two levels of
inference beyond the undisputed fact that appellants arrived in the
vehicle with the cash: first, that appellants were guarding the
money and, second, that the money belonged to them. Neither
inference was based on conduct observed by Cruz.

-21-
 The difference between Cruz's information and the base of

knowledge necessary to make a lay opinion helpful to the jury in a

case such as this is apparent when the circumstances here are

contrasted with a scenario described by the Second Circuit in

Garcia:

[W]hen an undercover agent participates in a hand-to-hand
drug exchange with a number of persons, the agent may
well testify that, in his opinion, a particular
participant, "X," was the person directing the
transaction. Such an opinion is based on his personal
perception of such subjective factors as the respect
various participants showed "X," their deference to "X"
when he spoke, and their consummation of the deal only
upon a subtly signaled approval by "X." By allowing the
agent to state his opinion as to a person's role in such
circumstances, Rule 701 affords the jury an insight into
an event that was uniquely available to an eyewitness.

413 F.3d at 211-12. Cruz, as he admitted himself, was not an

eyewitness with unique access to appellants' conduct; his testimony

could only have replaced, rather than aided, the jury's assessment

of the evidence.18 It was thus not admissible lay opinion

testimony. See Garcia, 413 F.3d at 213-14 (explaining that jurors

are not "'helped' within the meaning of Rule 701 by opinion

testimony that, in addition to telling them 'what was in the

evidence,' also told them 'what inferences to draw from it'"

(quoting United States v. Grinage, 390 F.3d 746, 750 (2d Cir.

18
We note that the opinion of the law enforcement agent
described by the court in Garcia concerns an individual's
observable role in relation to other participants at the scene of
a drug transaction, not the individual's overall role in the
conspiracy. The latter would be more likely to rest on evidence
beyond the agent's perceptions at the scene.

-22-
2004)); see also 4 Jack B. Weinstein & Margaret A. Berger,

Weinstein's Federal Evidence § 701.05 (Joseph M. McLaughlin, ed.,

2d ed. 2011) (noting that, to protect the jury's role as fact-

finder, courts must be wary of lay opinion testimony whose "sole

function is to answer the same question that the trier of fact is

to consider in its deliberations"); Garcia, 413 F.3d at 210-11.

The usurpation problem that arises when a witness testifies to

opinions based on evidence that was also available to the jurors is

compounded when the witness is a government agent whose testimony

– as here – is effectively a judgment on the question of guilt or

innocence. This is one variant of the imprimatur problem we

described in Flores-de-Jesús and Casas. There, we focused

primarily on our concern that the government agent's preview of

other witnesses' testimony would endorse their testimony "in what

can only be viewed as an attempt by the government to bolster the

credibility of those later witnesses." See Flores-de-Jesús, 569

F.3d at 26; see also id. at 17-19; Casas, 356 F.3d at 120.19

Although the vouching concern also exists here to the extent

that Cruz's role-in-the-offense opinion implicitly endorsed

Torres's later testimony describing appellants' conduct in the

19
As we observed in Flores-de-Jesús, the government is
particularly eager for such testimony in drug conspiracy cases
"where so much of the government's case relies on the often
problematic testimony of confidential informants with unsavory
pasts or cooperating co-defendants with myriad credibility
problems." 569 F.3d at 26-27.

-23-
minivan, the problem with Cruz's testimony extends beyond vouching

for what the jury may perceive as a less credible witness. The

jurors were told that, based on the same evidence before them, an

experienced government agent had rejected appellants' mere presence

defense and concluded that they were participants in the

conspiracy. Given the effect on juries of the government's

imprimatur, see Flores-de-Jesús, 569 F.3d at 18; Casas, 356 F.3d at

120, it was patently unfair for Cruz to present his view of

appellants' culpability. "It is . . . the jury's singular

responsibility to decide from the evidence admitted at trial

whether the government has carried its burden of proof beyond a

reasonable doubt." Garcia, 413 F.3d at 215; see also Grinage, 390

F.3d at 751 ("[T]he agent was presented to the jury with an aura of

expertise and authority which increased the risk that the jury

would be swayed by his testimony, rather than rely on its own

interpretation . . . .").20

In sum, Cruz's testimony about appellants' roles in the June

27 transaction lacked a foundation of personal knowledge of facts

essential to his opinion, usurped the jury's fact-finding function,

20
Cruz's law enforcement experience, of course, was not an
appropriate basis for his opinions as a lay witness. See Garcia,
413 F.3d at 216-17. Nor would the opinion have been proper if Cruz
had been qualified as an expert, which he was not. As we said
about similar testimony in Casas, Cruz's "testimony that particular
persons were members of the conspiracy was not an appropriate
subject for expert testimony." 356 F.3d at 120.

-24-
and improperly endorsed the government's theory of the case.

Hence, it is beyond debate that the testimony was wrongly admitted.

B. Cruz's Testimony about the Post-Arrest Interview of Rubis

1. Background

During cross-examination of Agent Cruz, Reyes-Guerrero's

counsel elicited the fact that Reyes-Guerrero was not a target of

the Task Force investigation until the day of the arrests. Cruz

specifically acknowledged that Reyes-Guerrero's name did not appear

in the four or five official investigative reports – known as "DEA-

6 reports" – that were prepared before that day. On redirect

examination by the government, Cruz confirmed that Reyes-Guerrero's

name did appear in the last such report, "the arrest report." When

the prosecutor followed up by asking about the contents of that

report, defense counsel objected and the court convened a bench

conference.

The final DEA report described the post-arrest interview of

Rubis by Cruz and another Task Force agent. In the bench

conference, the prosecutor explained that he would not try to

"elicit the actual statements" uttered by Rubis in the interview,

apparently recognizing that such testimony would trigger hearsay

and Confrontation Clause problems. Rather, he would ask about

Rubis's offer to cooperate, whether he was interviewed outside the

presence of the others, "[a]nd what did [Cruz] do after the meeting

was over." Reyes-Guerrero's counsel protested that evidence about

-25-
the interview would be hearsay because the prosecutor was "trying

to establish the truth of the matter asserted," and he emphasized

that "Rubis is not here."

The district court, after suggesting that any statement from

Rubis would be admissible as a statement by a co-conspirator,21

allowed the prosecutor to proceed. The following exchange then

occurred:

Q: Agent Cruz, the DEA-6 that I just asked you about,
without saying what is in that DEA-6, specifically, the
whole report, what's it about?
A: That report is an interview that was made to Mr. Rubis
Dario after the arrest.
Q: After all three were arrested?
A: Yes, after all three were arrested.
. . .
Q: Okay. Where were these two individuals while you were
interviewing him?
A: These two individuals were in the cell at the office.
Q: Why were they not in the interview?
A: Because the interview was being carried out with Mr.
Rubis only and with us because he had the intention of
cooperating with us.
Q: After this interview, did the targets of your
investigation at this point change?
A: Yes, sir.
Q: Okay. After this interview, what did you decide to do
with Defendant [Reyes-Guerrero]?

Cruz then testified that the defendants were processed and taken to

a federal detention facility.

21
There is no question that the hearsay exception for co-
conspirator statements made "during the course and in furtherance
of the conspiracy," Fed. R. Evid. 801(d)(2)(E), does not apply to
Rubis's post-arrest statements. See United States v. Lombard, 72
F.3d 170, 189 n.25 (1st Cir. 1995).

-26-
 On appeal, appellants argue that Cruz implicitly testified

that Rubis had identified them as co-conspirators, and they assert

that the indirect admission of Rubis's statement violated their

rights under the Confrontation Clause of the Sixth Amendment, as

described in Crawford v. Washington, 541 U.S. 36 (2004). Under

Crawford, the admission of testimonial hearsay against a defendant

is prohibited unless the declarant is unavailable to testify at

trial and the defendant had a prior opportunity to cross-examine

him. Id. at 68; United States v. Castro-Davis, 612 F.3d 53, 64

(1st Cir. 2010). Although Rubis was unavailable, having become a

fugitive, appellants had no prior opportunity to question him about

his interview statements.22

We begin our assessment of this claim with the government's

contention that the Crawford issue was not preserved.

2. Forfeiture

The government argues that neither appellant may pursue a

Confrontation Clause challenge on appeal because Reyes-Guerrero

objected at trial on hearsay grounds, without referencing the

Confrontation Clause or Crawford, and Mieses did not object at all.

22
Mieses mistakenly invokes Bruton v. United States, 391 U.S.
123 (1968), which addresses the admission of a non-testifying
codefendant's out-of-court statements in a joint trial. Rubis was
not tried with Mieses and Reyes-Guerrero, and "a literal Bruton
objection" therefore "ma[kes] no sense." United States v. Cabrera-
Rivera, 583 F.3d 26, 36 (1st Cir. 2009). We thus construe his
Confrontation Clause claim as a Crawford challenge. See id.

-27-
 We can easily dispatch the argument as to Reyes-Guerrero.

Although the government accurately recites our precedent holding

that an objection on hearsay grounds will not preserve a

Confrontation Clause claim, see United States v. Rivera-Rodríguez,

617 F.3d 581, 594 (1st Cir. 2010), we have in the past looked to

the full context of counsel's colloquy with the court in

determining whether a Crawford challenge was preserved. In

Cabrera-Rivera, for example, we found it "obvious that counsel was

objecting to [defendant's] inability to confront the declarant"

where counsel had pointed to the declarant's unavailability at

trial. See 583 F.3d at 36 (citing counsel's statement that the

declarant "is not here to --"). We therefore concluded that the

defendant had preserved his Confrontation Clause claim. Here, too,

counsel plainly raised both hearsay and Confrontation Clause

concerns. See, e.g., Tr. Transcript (Feb. 19, 2009), at 10

("Because Rubis is not here, and . . . the attorney is trying to

establish the truth of the matter asserted because of this.")

(emphasis added); id. at 10-11 ("There's a . . . thin line, your

Honor, and it might . . . this hearsay information, your Honor, we

don't know which context it happens; and, also, Mr. Rubis, again,

is not here.") (emphasis added).23

23
As a practical matter, the same underlying concerns would
be at play if we addressed the testimony at issue here solely as a
hearsay problem, see United States v. Gomez, 617 F.3d 88, 96-97 (2d
Cir. 2010), and we would reach the same outcome. See also United
States v. Dukagjini, 326 F.3d 45, 56 n.6 (2d Cir. 2003) (noting

-28-
 Mieses's counsel, by contrast, was largely silent throughout

the exchange on this issue. He participated in the sidebar

conference discussing the proposed testimony, however, and voiced

his agreement that the prejudice from the line of questioning

outweighed its probative value. In context, where the interests of

both defendants were identical, we are satisfied that Mieses's

counsel incorporated Reyes-Guerrero's more fully stated objection

into his brief comment.

We thus afford plenary review to both appellants' claims. We

generally review preserved evidentiary errors for abuse of

discretion, but "[w]e review de novo whether the strictures of the

Confrontation Clause have been met." Rivera-Rodríguez, 617 F.3d at

590 (internal quotation marks omitted).

3. Analysis

Out-of-court statements excluded from evidence under Crawford

must be both testimonial – i.e., statements an objectively

reasonable declarant could have anticipated would be used at trial

– and offered for their truth, thus constituting hearsay.

Crawford, 541 U.S. at 51-52; id. at 59 n.9; Castro-Davis, 612 F.3d

at 65. It is not disputed that Rubis's assertions in his post-

that the hearsay rules and the Confrontation Clause "'are generally
designed to protect similar values,'" though "the Supreme Court has
'been careful not to equate' them" (quoting Idaho v. Wright, 497
U.S. 805, 814 (1990)); Ryan v. Miller, 303 F.3d 231, 247 (2d Cir.
2002) ("[A]ccusatory assertions introduced without the testimony of
the accuser not only violate the Confrontation Clause, but they
also violate rules against hearsay.").

-29-
arrest interview were testimonial. The government also appears to

accept that testimony revealing an "actual statement[]" by Rubis

about appellants' complicity in the drug deal would be inadmissible

hearsay. It seeks to defeat appellants' Crawford claim on two

other grounds: (1) no actual statement, and thus no improper

hearsay, was introduced into evidence, and (2) Reyes-Guerrero's

counsel opened the door to the challenged testimony.24

a. No Statement

In the pertinent portion of the challenged exchange, Cruz was

asked, in essence, if Rubis had said anything during his interview

that changed the targets of the investigation and prompted the

defendants' arrests. Cruz answered affirmatively. The government

maintains that the prosecutor's examination was "adroitly focused

. . . on the actions that Agent Cruz took after speaking to Rubis,"

24
The government cites precedent for the proposition that
"[s]tatements offered for the limited purpose of showing what
effect the statement had on the listener are not hearsay," but it
makes no direct argument that we should view any statement by Rubis
as nonhearsay. See Brief of the United States at 53 (citing United
States v. Cruz-Díaz, 550 F.3d 169, 176 (1st Cir. 2008); United
States v. Bailey, 270 F.3d 83, 87 (1st Cir. 2001)). Instead, in
the sentence immediately following its citations to Cruz-Díaz and
Bailey, the government asserts that "[t]here was no violation here
because Rubis's statement was not introduced." Even if we were to
generously view the government to be arguing, alternatively, that
admission of Rubis's statement was permissible because it was not
offered for the truth of the matter asserted, that argument would
be unavailing. As we shall explain, the government offered the
evidence about Cruz's interview of Rubis to rebut an inference that
Reyes-Guerrero was not a participant in the crime – i.e., for the
truth of Rubis's implicit statement that Reyes-Guerrero and Mieses
were involved.

-30-
while appellants argue that "[n]o juror of normal intelligence,

hearing this exchange, could have failed to get the prosecutor's

point that Rubis, in his statement to the agents, had implicated

[him] as a co-conspirator." Reyes-Guerrero Brief at 21; see also

Mieses Brief at 32. Appellants assert that "the import of this

testimony is no less clear than if Rubis had been directly quoted."

Reyes-Guerrero Reply Brief at 5.

We agree with appellants that a reasonable jury could only

have understood Cruz to have communicated that Rubis had identified

appellants as participants in the drug deal. It makes no

difference that the government took care not to introduce Rubis's

"actual statements." Although the government could properly seek

to rebut Reyes-Guerrero's suggestion that the appellants were

innocent bystanders, it did so with testimony that plainly told the

jurors that Rubis said they were co-conspirators rather than with

the available evidence circumstantially pointing to their

culpability.

In United States v. Maher, 454 F.3d 13 (1st Cir. 2006), we

declined to discuss Crawford's applicability to "testimony from

which . . . the jury would necessarily infer that the declarant had

said X, but which did not itself quote or paraphrase the

declarant's statements." Id. at 20-21. We observed that the

defendant in that case had made "no effort to explain why Crawford

should be read to extend" to such statements. Id. at 21. Here,

-31-
the issue is addressed head-on by both appellants. We conclude

that the right to cross-examine an out-of-court accuser applies

with full force in the circumstances of this case.

The opportunity to cross-examine the declarant "to tease out

the truth," Crawford, 541 U.S. at 67, is no less vital when a

witness indirectly, but still unmistakably, recounts a co-

defendant's out-of-court accusation. The concerns animating the

right to confrontation are especially acute when the statement at

issue originates from an ex parte examination by a law enforcement

officer. See Crawford, 541 U.S. at 50-51; id. at 51 ("An accuser

who makes a formal statement to government officers bears testimony

in a sense that a person who makes a casual remark to an

acquaintance does not."). Hence, if what the jury hears is, in

substance, an untested, out-of-court accusation against the

defendant, particularly if the inculpatory statement is made to law

enforcement authorities, the defendant's Sixth Amendment right to

confront the declarant is triggered. Accord Ryan v. Miller, 303

F.3d 231, 249 (2d Cir. 2002) ("If the substance of the prohibited

testimony is evident even though it was not introduced in the

prohibited form, the testimony is still inadmissible."); United

States v. Reyes, 18 F.3d 65, 69 (2d Cir. 1994) ("[A]lthough the

jury was not told exactly what words [the co-defendants] had

spoken, [the witness's] testimony clearly conveyed the substance of

what they had said.").

-32-
 Indeed, any other conclusion would permit the government to

evade the limitations of the Sixth Amendment and the Rules of

Evidence by weaving an unavailable declarant's statements into

another witness's testimony by implication.25 The government cannot

be permitted to "circumvent the Confrontation Clause by introducing

the same substantive testimony in a different form." Ryan, 303

25
This risk of violation of the hearsay rule or the
Confrontation Clause reinforces the importance of prosecutors
understanding the limitations on so-called background or context
evidence. If, for example, such evidence includes the fact that a
known participant in the crime was observed conferring in
suspicious circumstances with the defendant, it can be useful and
acceptable for the investigating agent to explain that he began to
watch the defendant because of this observed meeting. It does not
follow, however, that the objective of explaining why the agent
focused on the defendant – or why the agent proceeded to arrest the
defendant – justifies prejudicial hearsay testimony. See Maher,
454 F.3d at 20 ("[I]nvestigating officers . . . should not . . . be
allowed to relate historical aspects of the case, such as
complaints and reports of others containing inadmissible hearsay.
Such statements are sometimes erroneously admitted under the
argument that the officers are entitled to give the information
upon which they acted.").
We take it to be common ground that the government may not
have an agent testify, "X told us that the defendant was involved
in the crime." Quoting X's out-of-court accusation remains
impermissible if the agent's testimony is changed to say, "We began
to investigate the defendant because X told us that the defendant
was involved in the crime," and the government seeks to justify it
by arguing that X's out-of-court statement was offered not for its
truth but only to explain why the agent focused on (or arrested)
the defendant. Nor does the result change if, instead of quoting
the out-of-court statement, the government communicates its content
to the jury by implication. In such instances, the relatively
minor "probative value [of the evidence of why the agent began
surveillance or made an arrest] is substantially outweighed by the
danger of unfair prejudice" that results from communicating the
accusatory hearsay to the jury. Fed. R. Evid. 403; see also Maher,
454 F.3d at 20 ("The need for this evidence is slight, and the
likelihood of misuse great." (quoting 2 Broun, et al., McCormick on
Evidence § 249, at 103 (5th ed. 1999)(emphasis omitted)).

-33-
F.3d at 248; see also, e.g., Mason v. Scully, 16 F.3d 38, 43 (2d

Cir. 1994) ("The fact that the content of [the co-conspirator's]

statement to [the detective] was not revealed in detail was

immaterial, for the plain implication that the prosecutor sought to

elicit . . . was that the conversation . . . led the police to

focus on [the defendant]."); People v. Cruz, 474 N.Y.S.2d 142, 144

(N.Y. App. Div. 1984) ("The prosecutor's questioning of [the

witness] concerning a conversation with [a non-testifying witness],

which directly preceded [the witness's] testimony that he made two

arrests in the case was improper inasmuch as it was designed to

create the impression in the jurors' minds that [the non-testifying

witness] had implicated the defendant . . . ."); People v. Felder,

485 N.Y.S.2d 576, 577 (N.Y. App. Div. 1985) (finding error where

witness testified that "the complainant made a response following

which 'we patted down both subjects, placed them in handcuffs, and

removed them from the bar,'" because "[e]ven though [the

complainant's] response was not admitted into evidence, the

testimony left the jurors with the clear impression that . . . the

arrests were made as a result of this response").

We therefore reject the government's argument that Cruz's

testimony was proper because it omitted "the actual statements"

made by Rubis. See Maher, 454 F.3d at 23 ("[W]e are on firm ground

in warning prosecutors of the risks they face in backdoor attempts

-34-
to get statements by non-testifying confidential informants before

a jury.").

b. The Opened Door

The government suggests that, even if Cruz's testimony about

the interview indirectly resulted in the introduction of an out-of-

court statement, the testimony was nonetheless proper to rebut

Reyes-Guerrero's cross-examination eliciting the fact that the two

defendants were never mentioned in the investigative reports prior

to the incident at the van. In the sidebar discussion following

Reyes-Guerrero's objection at trial, the prosecutor stated that he

had avoided referring to the interview in his direct questioning

but defense counsel's focus on Reyes-Guerrero's absence from the

DEA reports had triggered a need for the testimony.

The government's argument on this issue borders on the

frivolous. The testimony elicited by Reyes-Guerrero's counsel

about the early DEA reports was proper evidence in support of

appellants' mere presence defense, showing that appellants had not

previously been known to law enforcement authorities. The

government does not explain in its brief how that testimony opened

the door to evidence on the content of Rubis's interview. At

trial, the prosecutor asserted that the evidence was necessary

rebuttal because, in context, the questioning on the early reports

was "diminishing [appellants'] culpability." That may be.

Defendants are entitled to cross-examine government witnesses in an

-35-
effort to diminish their own culpability, and the government is

entitled to counter with appropriate rebuttal evidence. The

evidence of appellants' absence from the earlier reports was

neither inaccurate nor misleading, and the government did not

contend otherwise. The government could properly have countered by

showing, for example, that appellants did appear in the final

report, which was prepared after the incident at the van and

described the transaction. By no means, however, did the cross-

examination testimony require or justify rebuttal that violated the

Confrontation Clause.

Moreover, the government's rationale essentially acknowledges

that the evidence of Rubis's accusation of complicity was offered

to establish the truth of the accusation – i.e., that appellants

were participants in the drug transaction, notwithstanding the

silence of the early reports. Hence, admission of Cruz's testimony

about the interview was improper.

C. Harmless Error

Both appellants argue that the errors described above entitle

them to a new trial. Reyes-Guerrero asserts that admission of

Cruz's overview testimony and the indirect admission of Rubis's

out-of-court statements each is reversible error on its own, and

Mieses additionally argues that the multiple errors require the

grant of a new trial under the cumulative error doctrine. See

-36-
United States v. Meserve, 271 F.3d 314, 331-32 (1st Cir. 2001);

United States v. Sepúlveda, 15 F.3d 1161, 1195-96 (1st Cir. 1993).

The inquiry to determine whether cumulative errors are

harmless is the same as for individual error, Meserve, 271 F.3d at

332, and we therefore think it most efficient to move beyond

individual analyses of harmlessness to consider the combined effect

of the two erroneously admitted portions of Cruz's testimony. "The

admission of improper testimony is harmless if it is 'highly

probable that the error did not influence the verdict.'" Flores-

de-Jesús, 569 F.3d at 27 (quoting Casas, 356 F.3d at 121).26 The

government bears the burden to establish harmlessness, id., and the

inquiry requires a case-specific examination of factors that

include "the centrality of the tainted material," its prejudicial

impact, and any other indications that "the error affected the

factfinder's resolution of a material issue." Sepúlveda, 15 F.3d

at 1182 (quoted in Flores-de-Jesús, 569 F.3d at 27); see also

Cabrera-Rivera, 583 F.3d at 36.

Without question, as we described in addressing Reyes-

Guerrero's sufficiency claim, there was ample evidence aside from

26
Constitutional errors, such as a Confrontation Clause
violation, require reversal unless shown to be harmless beyond a
reasonable doubt. See Cabrera-Rivera, 583 F.3d at 36. In this
case, we use the non-constitutional standard that is more favorable
to the government because our harmless error analysis embraces both
constitutional and non-constitutional errors. The government is
unable to meet that easier test for showing harmlessness and,
hence, it could not meet the more exacting constitutional standard.

-37-
Cruz's improper testimony from which a reasonable factfinder could

infer that appellants played the roles that Cruz and Rubis

attributed to them. We strongly doubt, however, that the jury was

unaffected by Cruz's improper testimony, which communicated to the

jurors that Cruz, an experienced drug investigator, and Rubis, who

admitted his guilt, had both identified appellants as participants

in the conspiracy. We have recognized the "'devastating'" impact

of a co-defendant's extrajudicial statements, Cabrera-Rivera, 583

F.3d at 37 (quoting Bruton, 391 U.S. at 136), and an essential

premise of our warnings about overview evidence is that jurors view

the testimony of law enforcement officers as especially

authoritative, see Flores-de-Jesús, 569 F.3d at 17-18.

Importantly, the prosecution depended heavily on the

believability of Torres, a paid government informant. In

evaluating harmless error, we cannot presume the jury would have

accepted his testimony as readily without the corroboration

provided by Cruz's testimony. Indeed, consistent with standard

practice for informant witnesses, the court instructed the jurors

to consider Torres's testimony with caution. See Flores-de-Jesús,

569 F.3d at 26 (noting the "often problematic testimony of

confidential informants with unsavory pasts").

The other evidence of appellants' knowing involvement was

suggestive, but not overwhelming. In recorded calls on the day of

the arrests, Rubis said he was with the buyers, but he did not

-38-
identify them by name. Mieses and Reyes-Guerrero were seated in

the front of the minivan, while the known conspirator – and the

money – were in the back. That vehicle, with its hidden

compartment, was not registered to either appellant, and the

compartment was not visible to the driver or passengers.27 Cruz

testified that the video taken of the attempted drug deal does not

show Mieses talking at all – despite Torres's testimony that Mieses

made several incriminating statements. The jury in fact heard none

of the recorded conversations among the men that day – including

Rubis's statement, reported by Torres, that the owners of the money

were in the car – because the audio recording was not introduced

into evidence.

The government's heavy reliance on the informant's credibility

made the overview evidence particularly damaging in this case. In

effect, the jurors were told it was unnecessary to make their own

assessment of Torres's credibility because Cruz did it for them

when he announced unequivocally that appellants were "the owners"

of the money. Rubis's accusation validated Cruz's assessment. See

United States v. Gomez, 617 F.3d 88, 97 (2d Cir. 2010) ("The

improperly admitted evidence had substantial weight precisely

27
The minivan was inspected by DEA Task Force Agent Victor
Javier Salgado-Betancourt, who was trained to find secret
compartments in motor vehicles. He testified that the hidden
compartment he discovered was designed to open only when several
buttons or components inside the vehicle were activated at the same
time.

-39-
because it went to the core of the government's case against [the

defendant], placing an unimpeachable accusation before the jury.").

In sum, the tainted evidence was central to the prosecution's

case and potentially disastrous to the appellants' defense of mere

presence. The contested statements were not "'cumulative of other

compelling proof'" that the defendants "'committed the charged

[crime],'" United States v. Earle, 488 F.3d 537, 546 (1st Cir.

2007) (alteration in original) (quoting United States v. Barthelho,

129 F.3d 663, 670 (1st Cir. 1997)); rather, Cruz's testimony sealed

any gap the jury may have perceived between the circumstantial

evidence and a finding of guilt. Hence, we cannot say that it is

"highly probable" that the errors did not affect the jury's

resolution of the case and, accordingly, we conclude that

appellants are entitled to a new trial.

D. Exclusion of the Audiotape

Our conclusion that appellants' convictions must be vacated

based on the overview and Sixth Amendment errors makes it

unnecessary to rule on Mieses's contention that the district court

erred in excluding the audio recording made by informant Torres on

the day of the arrests. Because the issue is likely to arise again

in the new trial, however, we see value in examining this claim.

-40-
 Torres testified that Mieses made several incriminating

statements during their encounter at the van,28 and Mieses's counsel

sought to cross-examine Torres with the recording, which all

parties agreed did not contain either defendant's voice. When

counsel asked for a ten-minute break during cross-examination to

find the relevant portion of the one-hour recording, the government

objected that the tape was incomplete and therefore both misleading

and prejudicial. The prosecutor also protested that the recording

was inadmissible without an English translation. The court

rejected admission of the recording, stating: "I don't see any

reason why I should admit this tape . . . . [T]his is too little,

too late."

Mieses's counsel again urged admission of the recording

following the government's redirect examination of Torres. Counsel

emphasized that "[t]he most important factor in this case is what

was said inside that van," and "the most important thing is that

the voice[s] of the Defendants are not heard there." The court

listened to the recording at counsel's request, but then reaffirmed

its initial decision, noting that it was "clear from all the

testimony" that the defendants' voices were "not heard in any

tape."

28
As described in Section I, Torres testified that Mieses
reported that the shoe box in the van contained $100,000, and he
asked Torres about "the merchandise," as well as "how are we going
to do this."

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 Mieses presses an argument on appeal that was implicit in the

objections raised at trial, but not fully articulated there. He

argues that the crucial aspect of the recording is not that the

defendants' voices are absent – a fact that no one disputes.

Rather, he asserts that the jurors needed to hear the recording so

they could decide whether – as Torres claimed – the audio was

faulty, or whether Torres had fabricated the exchange in the

minivan. Stressing the plausibility of the latter view during oral

argument on appeal, defense counsel noted that, at a minimum, the

recorder should have picked up the statements that Torres claimed

to have made to appellants.29 Mieses insists that a translated

transcript of the recording should not have been a prerequisite for

its admission because the issue was not what was said on the tape,

but why the conversation described by Torres was not there – a

question of recording quality, not content.

Indeed, the government made much of the supposedly faulty

equipment in its closing argument, emphasizing that the critical

conversation was unavailable to be played for the jurors through no

fault of its own:

Couldn't get an audio of it. Agent Cruz explained to you
why. The wind was blowing. The equipment didn't half
work. . . . Electronics are that way. This equipment is
not perfect. People are not perfect. And how many times
in this trial did our equipment not work? How many times

29
When asked what is audible on the tape, counsel stated that
Torres and Rubis could be heard talking as they approached the van
and as they walked away from the van.

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 does your cell phone drop a call? Think about your
common experience as an individual.

We could not get what happened in that van on audio.
Sure, I'd love to be able to play that to you. But that
doesn't take away what the informant – the man that sat
there – who was cross-examined for hours and hours and
hours. He didn't want to be here. His family didn't
want him here. You heard the testimony. But he
testified to you what exactly went on in that van.

Mieses's claim of error, briefly stated, is that exclusion of the

audio recording compromised his ability to respond to this

argument.

As noted, we need not decide whether the district court,

which received an imperfect articulation of Mieses's claim, abused

its discretion in excluding the audiotape. We observe, however,

that the absence of defendants' voices on the recording was

potentially significant evidence rebutting Torres's incriminating

account of their behavior. The government and the defense argue

different reasons for the recording device's failure to pick up

Reyes-Guerrero's and Mieses's voices. We see little reason why the

correct explanation should not be a jury question, as to which the

sounds captured on the tape itself might be potent evidence.

Assuming the lack of an English transcript of the recording was

adequate reason for the exclusion, defendants can prepare a

transcript before their retrial.

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 IV.

For the reasons set forth above, we vacate the judgments of

conviction and remand to the district court for further

proceedings.

So ordered.

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