United States v. Shepard-Fraser

United States Court of Appeals
For the First Circuit

Nos. 12-1300
12-2220

UNITED STATES OF AMERICA,

Appellee,

v.

JORGE CORREA-OSORIO; DENISE SHEPARD-FRASER,

Defendants, Appellants.

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

[Hon. Daniel R. Domínguez, U.S. District Judge]

Before

Thompson, Lipez, and Barron,
Circuit Judges.

Alejandra Bird López for appellant Jorge Correa-Osorio.
Claudia Leis Bolgen, with whom Bolgen & Bolgen was on brief,
for appellant Denise Shepard-Fraser.
John A. Mathews II, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, were on brief, for appellee.

April 22, 2015
 THOMPSON, Circuit Judge.

OVERVIEW

Jorge Correa-Osorio and Denise Shepard-Fraser stand

convicted of cocaine offenses. Both ask us to reverse, though for

different reasons. Correa, for example, thinks the judge quadruply

erred — first by admitting identification evidence (because a

witness made him off a highly suggestive and unreliable procedure),

next by admitting key statements under the coconspirator exception

to the hearsay rule (because the government showed neither that he

was in on the conspiracy nor that the statements furthered the

conspiracy's aim), then by admitting evidence of a cocaine-filled

suitcase (because the evidence was irrelevant, prejudicial, and

confusing), and finally by committing cumulative error (because the

net effect of what the judge did made his trial fundamentally

unfair). He is wrong. Shepard, for her part, thinks the judge

doubly erred — first by finding the evidence sufficient to support

her convictions (because the government did not prove guilty

knowledge) and then by giving her a 128-month prison term (because

the sentence was procedurally and substantively unreasonable). But

she is wrong too. We will explain our thinking shortly, right

after we set out the case's background.

BACKGROUND

This case should seem familiar to any regular reader of

the Federal Reporter, given that it concerns yet another major

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cocaine conspiracy involving a creative distribution network, a

large cast of coconspirators (some with colorful nicknames), and a

turncoat who became the government's star witness.

(1)
The Conspiracy at a Glance

Running from June 2006 to June 2008, the conspiracy — led

by a man named Manuel Santana-Cabrera (also known as "El Boss") —

operated like this. Recruited couriers took commercial flights

from San Juan to mainland cities, including Philadelphia and New

York. Before boarding, they would check luggage filled with old

clothes, pillows, blankets, etc. — stuff that could get through

security without incident. Other conspirators working at the

airport would switch the checked luggage with luggage packed with

cocaine. Couriers would then fly to their destinations, claim

their checked bags, and hand them off to a taxi driver — known to

some as "Manopla" — who was in on the conspiracy too. Couriers

would make $3,000 a trip.

(2)
The Conspiracy's Unraveling

In September 2006 DEA agents in Philadelphia heard from

their colleagues in San Juan that there was something fishy about

the flight itineraries of José Vega-Torres and two others, who were

flying from San Juan to New York after a layover in Philly.1 The

Philadelphia agents looked for and found the trio's bags. After a

1
DEA stands for Drug Enforcement Administration.

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drug-detecting dog alerted to the odor of drugs, agents got a

search warrant. Their search struck pay dirt: each bag had at

least 13 brick-shaped objects wrapped in a blanket, and the objects

field-tested positive for cocaine.

Agents arrested Vega and his two sidekicks in New York.

Vega initially told a pack of lies about why he had cocaine in his

luggage, who had given it to him, who had asked him to go to New

York, and who had chauffeured him to the airport. But he

eventually agreed to come clean and cooperate in exchange for the

government's promise not to indict his wife on conspiracy-related

charges too (she was with him on one of his smuggling trips to New

York). His cooperation later led to the arrest of Correa and

Shepard (plus others) and to much of the evidence the government

used at trial (Correa and Shepard were tried together).

(3)
The Case Against Correa

At trial Vega identified Correa, calling him by a

nickname, "El Don." And he testified about the times that he saw

him in 2006, apparently (he did not recall the exact dates).

The first time, Vega had gone to leader Santana's house

with a conspirator named Israel Martes-Canales (nicknamed "Shaq").

While there, he and Martes helped load six suitcases into the trunk

of Correa's car. The suitcases were similar in size and weight to

drug luggage Vega had picked up in New York. Correa told Santana

that he was actually using his wife's car and that he would "get in

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trouble" if she found out what he was up to. And after Correa

left, Santana told Vega that "Don" was "in charge of taking bags

into the airport and putting them inside the plane."

Vega later saw Correa working at the San Juan airport.

About to jet off to New York to deliver more cocaine, he spotted

Correa on the tarmac, loading bags onto a plane.

As for the last occasion, Vega went one time with Martes

and another conspirator named Ricardo Soler-Rivera to drop a bag

off at Correa's house. Soler said the bag had $90,000, just before

he gave it to Correa.

Seeking to undermine his credibility, Correa's lawyer

extensively cross-examined Vega on a number of topics. Vega, for

example, testified about the inducements he received for

cooperation, the big one being the government's pledge not to go

after his wife if he played ball. Beyond that, he confessed to not

telling agents about "El Don" during an early debriefing, even

though other conspirators' names easily rolled off his tongue. And

despite saying how a conspirator told him that the mainland-bound

suitcases contained cocaine, he admitted to not personally knowing

whether that was in fact true. He also admitted to never seeing

Correa handle any of his checked luggage. What is more, he said

that "El Don" had braided hair — something the defense played up

because Correa later testified that he did not have braids in 2006.

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 On redirect Vega said that he personally knew Correa was

part of the Santana-drug-trafficking cabal. But the government did

not just rely on Vega's testimony to help tell the conspiracy's

story. As part of its case-in-chief, the government, for example,

also presented (over defense objections) evidence concerning the

seizure of a cocaine-filled suitcase at the San Juan airport on

October 4, 2007. The prosecution's theory was that evidence about

the suitcase constituted overt-act evidence linking the defendants

to the conspiracy. Here is what you need to know.

Marionel Báez-Peña — an airport-worker-turned-convict —

testified that he loaded drug luggage onto planes for two people:

kingpin Santana and a person named Maximo Bencosme-Aybar (also

known as "Phantasma"). Báez had done two jobs for Santana. And he

was set to do one for Bencosme on October 4.2 But he was not

feeling well that day, so he asked airport-worker Miguel Ramos-

Santi to help out. Another airport worker, Luis del-Valle-Febres,

testified that early on the morning of October 4, Ramos asked him

to put a tag on a suitcase left on a cart. And del-Valle did just

that.

Unfortunately for those involved, DEA-agent Hector Tapia-

Gerena — a member of the team investigating Santana's drug doings

2
Responding to the prosecutor's request that he "[t]ell the
jury what happened in October of 2007," Báez said, "[w]ell, in
October of 2007 I had a job with [Bencosme] on that day." The
"job," Báez explained, was to stow a drug bag on a departure-bound
plane.

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— got (according to his testimony) a tip that day about a

suspicious suitcase at the San Juan airport. Springing into

action, he headed for the airport's baggage carousel and spied an

unattended suitcase on a cart. The bag's tag read September 23.

A drug-sniffing dog detected the presence of contraband. And x-

rays of the suitcase showed — in outline — block-shaped items.

Agents opened the bag and saw pillows, towels, and t-shirts, plus

13 bricks of powder that tested positive for cocaine. One thing

led to another, and agents arrested Báez, Ramos, and del-Valle.

Testifying in his own defense, Correa denied important

elements of the accusations against him. For example, he said that

until his arrest, he had never met Santana. And he added that the

first time he laid eyes on Vega was in court. He also painted a

picture of himself as an educated, intelligent person of strong

character who lived a very simple lifestyle — one incompatible with

a criminal way of life. He insisted too that he did not have

access to some areas while working at the airport and so could not

have snuck drug bags in as alleged.

(4)
The Case Against Shepard

The case against Shepard essentially rests on a single

event — her flying from San Juan to New York on September 9 and

back again on September 10. The crucial testimony came from Vega,

who had known her for about 20 years and who had what he described

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as a "friendly" relationship with her in 2006. This is what he had

to say.

Already in New York, Vega and Martes went with cabbie

Manopla to a New York airport to pick up Shepard and two others.

Vega saw the threesome walking from the airport to the cabstand,

each carrying two suitcases. Vega and Martes helped put the bags

in the taxi's trunk. Manopla then dropped everyone off at a hotel

and sped off with the luggage. The accommodations were a little

tight — the five from the cab (Vega, Martes, Shepard, and her two

companions) stayed with four or five others in a single room a

conspirator (the record does not say who) had booked for what ended

up being Shepard's one night there. Everyone — except for Vega —

came from the same housing project in Puerto Rico.

At some point (the record does not indicate exactly

when), Santana called Martes and ordered him to pick up a cash-

filled bag at another locale and get the money back to Puerto Rico.

So Martes and Vega hopped in a cab, grabbed a bag of $261,000 in

cash, and headed back to the hotel. They paid each person in the

room — including Shepard — $3,000 for helping get the suitcases to

New York. Then they rolled up the rest of the money in socks and

crammed the rolls into their cohorts' luggage. Vega, however, did

not say who else was there when he and Martes rolled and packed the

cash — most importantly for present purposes, he did not say

whether Shepard saw the "show."

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 Martes flew back to San Juan, apparently to handle a

pressing matter (it is unclear just when he left). Vega stayed

behind, bought the others — including Shepard — tickets to San

Juan, and jetted back with them on September 10 (their flight left

New York at 9:00 p.m. on September 10 and landed in San Juan at

12:55 a.m. the next day). Martes and Soler rendezvoused with the

group at the San Juan airport and drove them to Santana's house.

Only Vega and Martes went inside, however. And there they gave

Santana the cash.

Looking to score some points on cross-examination (she

presented no evidence in her defense), Shepard's lawyer got Vega to

talk about his run-ins with the law. Her attorney also got him to

repeat that he had lied to federal agents a bunch of times before.

And her lawyer got him to admit that he could not look Shepard in

the eye in court (other than when he pointed to her sitting at

counsel table). But the prosecution's redirect brought out that he

personally knew that she was a member of the Santana-drug-

trafficking syndicate (a damning bit of evidence when it comes to

one of her arguments on appeal, i.e., that she hadn't a clue what

was in the suitcases; more on this later).

(5)
Verdicts and Sentences

After hearing all the evidence, the jury convicted Correa

and Shepard each on two counts: conspiring to distribute cocaine

and possessing with intent to distribute cocaine. See 21 U.S.C.

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§§ 841(a)(1), 841(b)(1)(A), and 846. The judge then handed out

stiff prison sentences, with Correa and Shepard getting concurrent

terms of 132 months and 128 months, respectively.

Which takes us to today's appeals.3

CORREA'S APPEAL

Correa believes that the judge slipped by admitting

Vega's in-court identification of him. He also thinks that the

judge stumbled by admitting three "hearsay" statements under the

coconspirator exception: Vega's statement calling him "El Don,"

Santana's statement calling "El Don" the go-to guy for getting drug

bags on planes, and Soler's statement saying a bag for "El Don" had

$90,000. On top of that he thinks that the judge blundered by

admitting evidence concerning the suitcase seized on October 4.

And lastly he believes that the judge's errors — even if harmless

on their own — cumulatively violated his fair-trial rights. Though

passionately argued, these points do not get him the reversal he

seeks.

(1)
In-Court Identification

Leading things off is Correa's claim that Vega identified

him at trial under unduly-suggestive conditions — an

identification, he adds, that was not otherwise reliable. He never

raised this objection below, limiting us to plain-error review — a

3
We will fill in more details as we go along.

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standard that requires him to prove four things: (1) an error, (2)

that is clear or obvious, (3) which affects his substantial rights

(i.e., the error made him worse off), and which (4) seriously

impugns the fairness, integrity, or public reputation of the

proceeding. See, e.g., United States v. Olano, 507 U.S. 725, 734-

37 (1993); United States v. Kinsella, 622 F.3d 75, 83 (1st Cir.

2010). Applying that not-so-defendant-friendly standard, see

United States v. Williams, 717 F.3d 35, 42 (1st Cir. 2013) — and

knowing too that we must fight off any "reflexive inclination" to

reverse unpreserved errors, see Puckett v. United States, 556 U.S.

129, 134 (2009) — we see no way to reverse here.

First, some context. Vega testified for the government

over three days. During the first day or so he talked at length

about a number of things, including: his personal life (he is

married with three children), how and why he joined the Santana-

commanded conspiracy (a friend told him about it, knowing he needed

money), what he did for the conspiracy (helping get cocaine to New

York and cash back to Puerto Rico), and the fallout from his arrest

in New York (pleading guilty to drug crimes, agreeing to cooperate

with authorities, and getting benefits for his cooperation).

On the second day Vega brought up Shepard (explaining,

for example, how he had known her for two decades and was

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"friendly" with her in 2006). And he identified her for the jury.4

That afternoon — following a lunch break — the prosecutor asked

Vega about his visiting Santana's house. On one of those

occasions, Vega said, a "person known as 'the Don' was there."

Responding to a question from the judge, Vega clarified that

Santana and "El Don" were different people. And if "El Don" is in

the "courtroom," the prosecutor said to Vega, "can you describe him

or her?" "Yes," Vega replied, "[t]he gentleman with the long-

sleeved shirt." Correa's lawyer "concede[d] that [Vega] is

referring to my client."

Kicking off cross-examination, Correa's counsel asked

Vega if he had met with DEA agents and prosecutors to "discuss what

you were going to testify" to. "Yes," Vega answered. Counsel (as

we said) then later tried to chip away at the in-court

identification, getting Vega to say that "El Don" had braided hair

(reminiscent of a look favored by a Puerto Rican rapper known as

"Don Omar") and eliciting from Correa that he (Correa) did not have

braids in 2006 (which again is around the time Vega supposedly saw

him). And counsel repeated this misidentification theory in his

closing argument, telling the jury that Vega simply "confus[ed] my

client with somebody else." Vega had an obvious motive to lie,

4
"If you see [Shepard]," the prosecutor said, "could you
describe what he or she is wearing for the jury"? "She is wearing
a blue jacket," Vega replied. Shepard's lawyer said he had no
objection "whatsoever" to the in-court identification.

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counsel also stressed, because his wife's freedom was at stake.

Now back to Correa's newly-minted argument. He believes

that because he was the only male defendant at defense table, Vega

obviously knew whom he should single out — any watcher of TV crime

dramas can surely tell which person in the courtroom is the

defendant, he adds. And this procedure, he says, was so

unnecessarily suggestive that it raised a very serious likelihood

of misidentification — meaning the judge should have barred the

evidence on due-process grounds, even without an objection from

counsel. We see things differently.

The Constitution, caselaw holds, guards against

convictions tied to evidence of questionable reliability — not by

banning the evidence's admission, but by giving defendants the

tools to convince jurors the evidence is not belief-worthy. See

Perry v. New Hampshire, 132 S. Ct. 716, 723 (2012). There is,

however, a small exception for police-arranged identifications —

think photo arrays, showups, and lineups. See id. at 724. Due

process, we see, bars trial courts from admitting such evidence "if

the . . . identification procedure was so impermissibly suggestive

as to give rise to a very substantial likelihood of irreparable

misidentification" — irreparable because trial mechanisms would not

help a jury distinguish between reliable and unreliable

identifications. See Neil v. Biggers, 409 U.S. 188, 197 (1972)

(quoting Simmons v. United States, 390 U.S. 377, 384 (1968)); see

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also Manson v. Brathwaite, 432 U.S. 98, 116 (1977). Based on the

Biggers line of cases, courts confronted with a challenge to a

police-run identification process must ask, first, whether the

process was unduly suggestive, and, if yes, whether the

identification was still reliable given the totality of the

circumstances.5 See, e.g., United States v. Arthur, 764 F.3d 92,

99-100 (1st Cir. 2014); United States v. Jones, 689 F.3d 12, 17

(1st Cir. 2012). Deterring police misuse of identification

procedures is the key principle animating what we will call the

Biggers test. See Perry, 132 S. Ct. at 726.

The deterrence rationale falls away, obviously, if the

police did not arrange the identification. And thus, our judicial

superiors tell us, the Biggers test does not apply and an

altogether different method of analysis takes center stage: if a

witness identifies the defendant under circumstances that are not

police-rigged, any dispute about the identification's reliability

is for the jury, with the defendant protected by ordinary criminal-

trial safeguards — the right to an effective counsel who can try to

poke holes in the witness's identification, the right to be

presumed innocent and be convicted by a jury of one's peers only by

proof beyond a reasonable doubt, etc. See id. at 723, 728-30

5
Reliability typically turns on (1) the witness's opportunity
to look at the person, (2) his degree of attention, (3) the
accuracy of his prior description, (4) how sure he was when he made
the identification, and (5) the amount of time between the crime
and the identification. See, e.g., Biggers, 409 U.S. at 199-200.

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(abrogating United States v. Bouthot, 878 F.2d 1506, 1516 (1st Cir.

1989), among other cases).

A key question is: In cases like ours — involving a

prosecutor's securing an in-court identification under supposedly

suggestive circumstances — which approach applies, Perry's or

Biggers's?6 One could argue either way.

On the one hand: In a recent case bearing an uncanny

resemblance to Correa's — involving as it does in-court

identifications of a male defendant seated at counsel table, with

the police playing no part in his getting picked out — the Eleventh

Circuit (by a 2-1 vote) read Perry as holding that the Biggers test

applies only if the complained-of suggestion arose from improper

police conduct. See United States v. Whatley, 719 F.3d 1206, 1215-

17 (11th Cir. 2013). And staying with Perry, that Circuit rebuffed

the defendant's due-process challenge, concluding that he got the

same process "identified in Perry as constitutionally sufficient"

for persons not identified through police-rigged procedures. Id.

at 2016-17.

On the other hand: The Seventh Circuit (by a 2-1 vote)

— after citing Perry — more recently used the Biggers test to

reject a due-process attack on an in-court identification of a

6
The Supreme Court handed down Perry after Correa's trial.
But we consider the law as it exists on appeal in deciding whether
a judge's action was plain error. See Henderson v. United States,
133 S. Ct. 1121, 1126 (2013).

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black male seated at defense table. See Lee v. Foster, 750 F.3d

687, 691-92 (7th Cir. 2014). Because nothing in the record showed

that the witness had made the identification "solely on the basis

of [the defendant's] race" or that the prosecutor had asked the

witness to point to the black male at counsel table, that Circuit

found no undue suggestion. Id.

We need not choose sides in this debate today. And that

is because Correa's identification argument fails under either

Perry or Biggers.7

(a)
Applying Perry

Assuming without deciding that Perry governs our

situation, we note the following. The jurors had ring-side seats

for Vega's identification. Hearing him speak and reading his

facial expressions and body language, they were best positioned to

detect any hint of unsureness when he singled-out Correa. They

also had an up-close look at Vega during the defense's cross-

examination of him — and counsel cross-examined him with gusto,

7
United States v. Espinal-Almeida does not say which case
rules supreme in our situation. Quoting Perry, we noted that "due
process 'does not require a preliminary judicial inquiry into the
reliability of an eyewitness identification when the identification
was not procured under unnecessarily suggestive circumstances
arranged by law enforcement.'" 699 F.3d 588, 603 n.16 (1st Cir.
2012) (quoting Perry, 132 S. Ct. at 730) (emphasis added by
Espinal-Almeida). Espinal-Almeida focused on police conduct
(specifically, whether something an officer had done meant an
identification was police-arranged), not on prosecutorial conduct.
So we can put that case to one side. Also, and interestingly,
neither side has briefed the issue — both assume Biggers controls.

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getting him to say, for example, that "El Don" had braided hair

when Correa testified that he did not wear his hair that way in

2006. Plus, the jurors heard counsel's attack on Vega's

credibility during summation, with counsel arguing (among other

things) that Vega had "confus[ed] my client with somebody else" and

that he had every incentive to tell agents whatever they wanted to

hear (keeping his wife out of jail was incentive number one). And

of course the jury found Correa guilty despite the presumption of

innocence and the beyond-a-reasonable doubt burden of proof.

Correa protests that the identification does not square

with due process because he was seated at the defense table when

Vega fingered him. But the government did not put him there. Also

keep in mind that he had a constitutional right to be present at

trial, see Illinois v. Allen, 397 U.S. 337, 338 (1970), and

defendants (who have to sit somewhere, clearly) usually sit at

counsel table to assist in their defense.

Simply put, Correa received all the safeguards Perry

stamped sufficient to protect a defendant's due-process rights in

this context. See Perry, 132 S. Ct. at 728-30 (explaining that the

way to handle unreliable evidence is through the adversary system,

which includes the assistance of counsel, the ability to confront

witnesses, the right to introduce evidence, and the presumption of

innocence). Which is why his argument loses under Perry.

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 (b)
Applying the Biggers Test

Alternatively, assuming without deciding that the Biggers

test holds sway, we have this to say. Sure, every in-court

identification has "some element of suggestion." Perry, 132 S. Ct.

at 727.8 What matters is whether there was undue suggestion (words

like "unnecessary" and "impermissible" can substitute for "undue,"

by the way). And that is where Correa gets tripped up.

An in-court identification may be unduly suggestive if,

for example, the prosecutor drew the witness's attention to the

defendant (say, by pointing to him) or asked questions that

suggested the hoped-for result,9 or if the defendant looked

different from others in the courtroom or at counsel table when the

identification occurred (say, by being the only black person

8
The sainted Judge Friendly, see David M. Dorsen, Henry
Friendly: Greatest Judge of His Era (2012), once called in-court
identifications — "where the defendant is sitting at the counsel
table" — "perfunctory," labeled their effect "weak[]," and said
"only" their "weakness . . ., along with [their] traditional
character, saves [them] from condemnation as being [themselves]
impermissibly suggestive." Brathwaite v. Manson, 527 F.2d 363, 367
n.6 (2d Cir. 1975), rev'd on other grounds, 432 U.S. 98 (1977).
"[T]here is always the question how far in-court identification is
affected by the witness' observing the defendant at the counsel
table," he also said. United States ex rel. Phipps v. Follette,
428 F.2d 912, 915 (2d Cir. 1970). But he noted too that "[m]ere
statement" of this problem "indicates what great weight must be
given to the determination of the judge who saw and heard the
witness." Id.
9
See, e.g., United States v. Greene, 704 F.3d 298, 307-08
(4th Cir. 2013).

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present).10 These are constitutional danger zones, for sure. Yet

the record reveals no such problems here, however. And Correa does

not argue otherwise — these special problems do not appear in his

brief and so any argument along those lines is waived. See, e.g.,

United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

Instead he basically says that he had a huge "pick me"

sign on him because (again) he was the only male defendant at

counsel table, and it was that — and that alone — which made the

situation unduly suggestive.11 But he does not cite — and we could

not find — any federal-appellate case supporting his position (our

court has not addressed the issue), though we did spy a case from

another circuit undercutting his claim. See United States v. Bush,

749 F.2d 1227, 1232 (7th Cir. 1984) (noting that "[t]he only

suggestive circumstance identified by defendant is that he sat at

counsel table" and holding that "[t]his circumstance alone is not

10
See, e.g., United States v. Rogers, 126 F.3d 655, 657-58
(5th Cir. 1997); United States v. Murdock, 928 F.2d 293, 297 (8th
Cir. 1991); United States v. Archibald, 734 F.2d 938, 942-43 (2d
Cir.), modified & reh'g denied, 756 F.2d 223 (2d Cir. 1984). But
see United States v. Curtis, 344 F.3d 1057, 1063 (10th Cir. 2003)
(agreeing that identifying a "[d]efendant as the robber, when the
robber was a black man and [d]efendant was the only black man in
the courtroom, might be somewhat suggestive, but it is not
unconstitutionally so").
11
His trial lawyer was a man, we note in passing.

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enough to establish a violation of due process").12 Simply put, he

never gets to first base under the Biggers test.

(c)
Summing up so Far

The plain-error standard is "extremely" difficult to

prove. United States v. Vigneau, 187 F.3d 70, 82 (1st Cir. 1999).

And rightly so, since the standard's central aim is "to encourage

timely objections," see United States v. Dominquez Benitez, 542

U.S. 74, 82 (2004) — a goal that (hopefully) deters unsavory

sandbagging by lawyers (i.e., their keeping mum about an error,

pocketing it for later just in case the jury does not acquit) and

gives judges the chance to fix things without the need for appeals

and new trials, see Puckett, 556 U.S. at 134, 140. But what

happened to Correa was not plain error, because it was not error

when measured against either Perry or Biggers.

12
A few months back Massachusetts's highest court — the
Supreme Judicial Court ("SJC") — said that when "a prosecutor asks
a witness at trial whether he or she can identify the perpetrator
of the crime in the court room, and the defendant is sitting at
counsel's table, the in-court identification is comparable in its
suggestiveness to a showup identification." Commonwealth v.
Crayton, 21 N.E.3d 157, 166 (Mass. 2014). But the SJC's opinion
turned on state common-law principles, not on federal (or even
state) constitutional ones. See id. at 169 n.16. And the SJC
acknowledged that other courts hold that "'[t]he inherent
suggestiveness in the normal trial setting does not rise to the
level of constitutional concern.'" Id. at 172 n.21 (quoting Byrd
v. State, 25 A.3d 761, 767 (Del. 2011)). Clearly then this case is
not enough for Correa to prevail on plain error. See, e.g., United
States v. Marcano, 525 F.3d 72, 74 (1st Cir. 2008) (per curiam)
(emphasizing "that plain error cannot be found in case law absent
clear and binding precedent").

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 (d)
Responding to the Dissent13

The dissent thinks we are all wrong on the Biggers issue,

insisting that the prosecutor so clearly manipulated the in-court

identification — using an unnecessarily-suggestive process — that

the judge should have found a Biggers violation without help from

counsel. See United States v. Frady, 456 U.S. 152, 163 (1982)

(explaining that plain error means an error so obvious that a judge

is "derelict in countenancing it, even absent the defendant's

timely assistance in detecting it"). But nothing the dissent says

points to plain error — i.e., an "indisputable" slip up on the

judge's part, given controlling precedent. See United States v.

Jones, 748 F.3d 64, 70 (1st Cir. 2014) (citing United States v.

Marcus, 560 U.S. 258, 262 (2010)); see also United States v.

Caraballo-Rodriguez, 480 F.3d 62, 70 (1st Cir. 2007); United States

v. Diaz, 285 F.3d 92, 97 (1st Cir. 2002).

Here is the essence of the dissent's undue-suggestion

thesis: The prosecutor's prepping Vega, having him testify for

over a day (which gave him plenty of time to eye Correa at counsel

table), and then (and only then) having him pick Correa out

infracted due process — an in-your-face infraction that should have

spurred the judge to strike the identification. The prosecutor,

the dissent adds, should have done one of two things instead —

13
We use "dissent" to refer to Judge Barron's separate opinion
concurring in part and dissenting in part.

-21-
first, relied on an identification Vega made pretrial through non-

suggestive means (no pretrial ID appears in the record, though),

or, second, relied on an in-court lineup (we will call these his

alternative-identification methods). But in our experience nothing

odd went down here — certainly nothing amounting to a clear-cut

constitutional violation.

Prosecutors (like other lawyers) prep witnesses (even if

just to tell them to testify truthfully). And there is no hint in

the record that the prosecutor crossed any line in prepping Vega

(for example by coaching him to pick Correa). Importantly too, the

dissent cites no law (let alone binding law) — and we know of none

— saying that routine witness prep equals undue suggestion.

As for the identification's timing, even the dissent

admits that prosecutors can (within wide margins) present their

case in the order they wish. And the prosecutor did what any

lawyer would do, eliciting background info from Vega — about how

the Santana-controlled conspiracy ran (who did what, with whom, for

whom, where, and when), for instance — which helped establish a

foundation for identifying Correa.14 Regardless, the dissent again

cites no settled law — and we are aware of none — holding a

prosecutor acts in an unduly-suggestive way simply by having a

14
One of Correa's counsel's favorite objections was lack of
foundation.

-22-
witness testify (here, for a day and a half) before identifying the

accused.15

What is left is the dissent's talk of alternative-

identification methods. Once again the dissent cites no

controlling authority — and we found none — requiring out-of-court

identifications or in-court lineups over the "usual practice" of

having a witness identify the defendant from the stand (again,

assuming the usual practice does not stray into the constitutional

danger zone most recently referenced in footnote 15).16

15
We say "simply" because we three judges agree that certain
circumstances not present here — (1) a prosecutor's drawing a
witness to the defendant or asking questions directly suggesting
the desired-for result, or (2) a defendant's looking different from
others in the courtroom — might make the in-court identification
process unduly suggestive.
16
See United States v. Brien, 59 F.3d 274, 278 (1st Cir. 1995)
(mentioning the "usual practice"). Staying with the in-court-
lineup issue, we see that a defendant can ask for — but has no
right to — one or "other particular procedure[s]." United States
v. Pérez-González, 445 F.3d 39, 48 (1st Cir. 2006); Brien, 59 F.3d
at 279 (noting that to change the usual practice, it was "up to"
defense counsel to offer a plan, which the judge could reject if he
offers a "plausible justification" for doing so). Often a
defendant does not want an in-court lineup, fearing that if a
"fairly staged" one "would still likely result" in his
identification, the lineup "would strengthen" the eyewitness's
"credibility" and "undermine" the defense's "misidentification
argument to the jury." Brien, 59 F.3d at 279. But again — and at
the risk of repeating ourselves — we detect no settled caselaw
allowing a prosecutor to force a defendant into an in-court lineup
to get an identification.

-23-
 Concluding, as we do, that the dissent's undue-suggestion

critique does not add up to plain error (or, indeed, to error of

any kind), we turn to Correa's other claims.17

(2)
"Hearsay" Statements

Correa does not contest the sufficiency of the evidence

against him. Rather he next complains that much of the

government's case depended on hearsay statements not admissible

under the coconspirator exception, which exempts from the hearsay

rule comments made by a coconspirator during and in furtherance of

the conspiracy. See Fed. R. Evid. 801(d)(2)(E). This is how that

exception works. If a defendant contests the admissibility of an

alleged coconspirator statement, the judge may conditionally admit

the evidence and put off ruling until the close of all the

evidence. See, e.g., United States v. Ciresi, 697 F.3d 19, 25-26

(1st Cir. 2012) (discussing United States v. Petrozziello, 548 F.2d

17
Although we need not reach the issue, we are also
unpersuaded by the dissent's claim that Vega's identification of
Correa was too unreliable for the jury to consider. To highlight
just one problem with the dissent's claim: The dissent worries
that Vega's previous encounters with "El Don" were indirect, brief,
and occurred five years before the in-court identification. But
these are usually matters for the jury to sort out. See Jones, 689
F.3d at 18 (stressing that "it is only in extraordinary cases that
identification evidence should be withheld from the jury")
(internal quotation marks omitted); see also Perry, 132 S. Ct. at
727 (indicating that a jury should consider — among other things —
how much time passed "between exposure to and identification of the
defendant, whether the witness was under stress when he first
encountered the suspect, how much time the witness had to observe
the suspect, how far the witness was from the suspect, . . . and
the race of the suspect and the witness").

-24-
20 (1st Cir. 1977)). Prosecutors must then prove by a

preponderance of the evidence (apart from the statements

themselves) the elements of admissibility under the exception —

that the defendant and the speaker were coconspirators and that the

speaker made the statement during the course and in furtherance of

the conspiracy. See id. at 25; see also United States v. Piper,

298 F.3d 47, 52 (1st Cir. 2002). A judge's ruling on this score is

called a "Petrozziello ruling." Ciresi, 697 F.3d at 25. If

prosecutors fall short, the defendant can ask the judge to declare

a mistrial or strike the statements. See, e.g., United States v.

Mangual-Garcia, 505 F.3d 1, 8 (1st Cir. 2007).

Correa gripes about three statements admitted through

Vega's testimony: Vega's statement pinning the "El Don" nickname

on him, Santana's statement tagging "El Don" as the person in

charge of getting drug bags on planes, and Soler's statement saying

a bag handed to "El Don" had $90,000. In making this pitch, he

does not deny being nicknamed "El Don."18 Nor does he question

Santana's and Soler's membership in the conspiracy. He just thinks

that the prosecutors did not show it more likely than not (the

usual preponderance standard) that he was the "El Don" who

coconspired with the speakers or that the challenged comments

furthered the conspiracy.

18
FYI: Correa's résumé (admitted as an exhibit) listed his
email addresses as (emphases ours) "eldon0789@hotmail.com" and
"eldon0789@gmail.com."

-25-
 We typically give abuse-of-discretion review to the

question of whether a statement is in fact hearsay. See, e.g.,

United States v. Brown, 669 F.3d 10, 22-24 (1st Cir. 2012); United

States v. Colón-Díaz, 521 F.3d 29, 33 (1st Cir. 2008). And we

usually review objections to a judge's Petrozziello ruling for

clear error, see, e.g., Ciresi, 697 F.3d at 26, knowing a party

cannot show clear error if there are competing views of the

evidence, see, e.g., United States v. Dowdell, 595 F.3d 50, 73 (1st

Cir. 2010).

Right off the bat, the parties fight over whether Correa

did enough below to preserve the nickname argument for review (they

agree he preserved the other arguments, however). We can sidestep

that issue, though, because it is easier to decide the argument on

the merits. See United States v. Murphy, 193 F.3d 1, 5 (1st Cir.

1999) (taking a similar tack in a similar situation).

Correa helpfully concedes one thing — that Vega was not

at all clear on how he learned about the "El Don" moniker that he

stuck Correa with. That is a very big deal because we need not

worry about the coconspirator exception unless the contested

comment constituted hearsay. See id. at 6. Correa speculates that

Vega "could only have learned" about the "El Don" sobriquet

"through hearsay" — i.e., that Vega must have heard about the

nickname from someone other than Correa. But the evidence does not

foreclose the possibility that Vega did indeed hear about the "El

-26-
Don" handle from Correa. True, Vega did testify that he did not

chat with Correa the time he saw him at Santana's house. Yet that

hardly means that Vega did not catch Correa introduce himself to

another there as "El Don." And because no one can possibly know —

based on what is before us — whether Vega got the nickname info via

hearsay, Correa has not shown an abuse of discretion on this

threshold issue.

Moving to the Petrozziello issue, Correa has not shown

clear error with the judge's handling of the other statements —

Santana's comment that "El Don" was the point man for getting the

drug bags on planes, and Soler's remark that a bag for "El Don" had

$90,000. For one thing, the record — even leaving aside the

hearsay statements themselves — demonstrates that Correa more

probably than not was a coconspirator of the speakers. Recall

Vega's testimony about seeing Correa with conspiracy-chief Santana

at Santana's home. They had suitcases that resembled the ones Vega

smuggled into New York. The bags — which Vega helped load into the

trunk of the car — weighed about the same too. And after putting

the bags into the auto, Vega heard Correa tell Santana that the car

was his wife's and that this could land him in hot water with her

if she knew what he was up to. The evidence of Correa's conspiracy

membership might not be overwhelming, but it suffices on a

-27-
preponderance standard.19 Or at least the judge did not clearly err

in so concluding. Also, the "in furtherance" requirement can be

satisfied (among other ways) by statements identifying other

conspirators, explaining how the conspiracy works, or updating

members on the conspiracy's doings. See, e.g., Ciresi, 697 F.3d at

29, 30; United States v. Díaz, 670 F.3d 332, 348-49 (1st Cir.

2012). And using the preponderance test, the contested statements

fit the bill. Or so the judge was entitled to conclude without

clearly erring.20

Two sets of issues down, two to go.

(3)
Evidence Concerning the Suitcase
Seized on October 4

Correa's penultimate argument — made and lost below,

meaning abuse-of-discretion review is called for — is simple

enough. Prosecutors, he reminds us, presented evidence about the

suitcase seized on October 4 to help establish the existence of the

Santana-led conspiracy. Yet, he insists, other evidence already in

the record showed a Santana-run conspiracy, and no evidence tied

this suitcase to that conspiracy. Yes, he stresses, Báez did

19
This is, after all, one of the lowest standards of proof on
the books. See United States v. Volungus, 730 F.3d 40, 46 (1st
Cir. 2013).
20
Clear error means the judge's action was "wrong with the
force of a 5 week old, unrefrigerated, dead fish . . . ." Toye v.
O'Donnell (In re O'Donnell), 728 F.3d 41, 46 (1st Cir. 2013)
(quoting S Indus., Inc. v. Centra 2000, Inc., 249 F.3d 625, 627
(7th Cir. 2001)).

-28-
testify that he himself helped sneak drug bags onto planes for both

Santana and Bencosme. But, he notes, Báez made it crystal clear

that he and others did the October 4 caper only for Bencosme, and

there is zero evidence (to quote his brief) that Bencosme "ever

worked for or with" Santana. So, his argument continues, evidence

of the October 4 seizure was wholly irrelevant, unfairly

prejudicial, and potentially confusing, given that it could have

distracted the jury's attention from a material issue — namely, the

existence (or not) of a Santana-headed conspiracy. See Fed. R.

Evid. 403. His theory has a certain bite. But we need not decide

whether he is right because any error — if error there was — was

harmless and so not reversible.

Errors in admitting evidence are "harmless" unless the

evidence "likely affected" the trial's outcome. See United States

v. Landrón-Class, 696 F.3d 62, 71 (1st Cir. 2012) (parenthetically

quoting United States v. Dunbar, 553 F.3d 48, 59 (1st Cir. 2009));

see also United States v. Adams, 375 F.3d 108, 113 (1st Cir. 2004).

And as for whether a Santana-captained conspiracy was a real thing

— the raison d'être for the suitcase evidence's presentation,

Correa says — plenty of evidence showed that it was. Just remember

all the testimony about how conspirators stashed drug bags aboard

chosen planes in San Juan bound for New York, then dropped the

drugs off in New York for sale, and then shipped cash back to San

Juan, with Santana — a/k/a "El Boss" — pulling the strings.

-29-
Compared with all this, the suitcase evidence is a drop in the

bucket. So we can say with "fair assurance" that the disputed

evidence did not sway the jury's verdict, meaning Correa's second-

to-last argument — like his others — goes nowhere.21 See Landrón-

Class, 696 F.3d at 71.

(4)
Cumulative Error

That leaves us with Correa's protest that, even if his

claimed errors do not justify reversal individually, they do when

taken cumulatively. But because we have espied only one assumed

error that is harmless at that, the cumulative-error doctrine

cannot help him. See United States v. DeSimone, 699 F.3d 113, 128

(1st Cir. 2012).

Enough said about Correa's appeal. Now on to Shepard's.

SHEPARD'S APPEAL

Shepard attacks the sufficiency of the evidence to

convict her and the reasonableness of her sentence. Though

skillfully presented, her arguments do not persuade.

(1)
Adequacy of the Evidence

Sufficiency challenges rarely succeed, see United States

v. Moran, 984 F.2d 1299, 1300 (1st Cir. 1993), and this one is no

21
Correa sometimes calls the October 4 suitcase evidence
"cumulative." But cumulative evidence is usually dismissed as
harmless, see, e.g., United States v. Savarese, 686 F.3d 1, 14 (1st
Cir. 2012), and again we have no reason to question the evidence's
harmlessness here.

-30-
exception. The gist of Shepard's argument — below and on appeal —

is that prosecutors failed to prove beyond a reasonable doubt that

she knew the bags she grabbed at the New York airport had drugs in

them, as opposed to some other form of contraband. And so, the

theory goes, her conspiracy and substantive-possession convictions

cannot stand.22 The judge disagreed. We of course assess her claim

de novo, viewing the evidence — including all fair inferences — in

the light most agreeable to the verdict and asking whether a

sensible jury could have convicted beyond a reasonable doubt. See,

e.g., United States v. Seng Tan, 674 F.3d 103, 107 (1st Cir. 2012).

Critically too, even if she has a plausible innocent explanation

for her actions, we must affirm if — after viewing the record from

the prosecution's vantage point — there was adequate evidence of

her guilt. See, e.g., United States v. George, 761 F.3d 42, 48

(1st Cir. 2014).

22
The conspiracy charge required prosecutors to prove a
knowing and intentional agreement between her and another to
violate the drug laws, see United States v. Ramos-Mejía, 721 F.3d
12, 14 (1st Cir. 2013), while the substantive charge required them
to prove her knowing possession of drugs with intent to distribute,
see United States v. García-Carrasquillo, 483 F.3d 124, 130 (1st
Cir. 2007). We oversimplify slightly, but you get the picture.
Because the two charges required the government to prove that she
acted knowingly, we examine her knowledge as a whole, rather than
breaking it down for each count. One other thing. "'[K]nowledge'
can be established by showing that a defendant was 'wilfully blind'
to facts patently before [her]." United States v. Rivera-
Rodriguez, 318 F.3d 268, 271 (1st Cir. 2003). The judge did not
give a willful-blindness instruction, however. Consequently we
consider only whether the government proved her actual knowledge.

-31-
 What sinks Shepard's sufficiency claim is Vega's

testimony that he personally knew that she was a member of

Santana's drug-trafficking enterprise.23 From that evidence a

clear-eyed jury could readily infer that members like Shepard know

that drug smuggling is a drug enterprise's lifeblood and that

handling drugs is what members do. See United States v. Ortiz, 966

F.2d 707, 712 (1st Cir. 1992) (explaining that "jurors are neither

required to divorce themselves from their common sense nor to

abandon the dictates of mature experience"). And a wide-awake jury

could then go on to infer that Shepard knew from the suspicious

happenings surrounding her New York trip — her getting $3,000

simply for jetting there on someone else's dime, grabbing a couple

of suitcases from the airport's luggage carousel, and passing them

off to others almost immediately, never to see the bags again, etc.

— that the suitcases contained drugs. See id.

Wait a minute, says Shepard, holes remain in the record

— for example, there is no direct evidence that (1) she ever saw

even a speck of drugs in Puerto Rico or in New York, that (2) she

and Vega were anything more than mere acquaintances (Vega's cell

phone had several conspirators' contact info, but not Shepard's),

23
Here are the money quotes from the prosecution's redirect
examination of Vega: "Mr. Vega-Torres," the prosecutor began,
"based on your own personal knowledge, we want you to tell the jury
who were the members of the Manuel Santana drug trafficking
organization at the time that you were involved." "Denise Shepard"
and El "Don," Vega replied, though he named other members too.

-32-
that (3) either Vega or anyone else ever so much as hinted that she

would be lugging drug bags to a waiting taxi, or that (4) she was

present when Vega and Martes rolled and packed the cash for the

trip back to Puerto Rico. Even assuming that these are plausible

theories of innocence, she gains nothing, "because the issue is not

whether a jury rationally could have acquitted but whether it

rationally could have found guilt beyond a reasonable doubt." Seng

Tan, 674 F.3d at 107. Granted, the government's case may not have

been "airtight" — most are not, we know. See Leftwich v. Maloney,

532 F.3d 20, 28 (1st Cir. 2008). But taking all the evidence —

direct and circumstantial — in the light most flattering to the

verdict, we think a levelheaded jury had enough to make a guilty-

knowledge inference required to convict. See also United States v.

Sawyer, 85 F.3d 713, 733 (1st Cir. 1996).

(2)
Reasonableness of the Sentence

That takes us to the dispute over Shepard's 128-month

prison term — a sentence 8 months above the 10-year statutory

mandatory minimum but 23 months below the bottom of the 151-188

month recommended guidelines range. She does not question the

correctness of either the mandatory minimum or the guidelines

range. But she does contest the procedural and substantive

reasonableness of her sentence, offering lots of reasons why she

should get a 120-month term after a sentencing do-over. We review

preserved arguments for abuse of discretion and unpreserved ones

-33-
for plain error. See, e.g., United States v. Tavares, 705 F.3d 4,

24 (1st Cir. 2013). Ultimately, though, none of her arguments

succeed.

(a)
Procedural Reasonableness

Shepard first accuses the judge of not considering every

sentencing factor listed in 18 U.S.C. § 3553(a).24 But after

listening to her lawyer argue for leniency (a plea that — among

other things — referenced her pre-arrest rehabilitative efforts and

stressed how a heavy sentence would hurt her family) and after

hearing her statement (an "allocution," in legal lingo), the judge

said that he had considered "all the factors." And his comment "is

entitled to some weight" — that is particularly true when a judge

issues a within-guidelines sentence, see United States v. Clogston,

24
There are seven factors. Factor one is "the nature and
circumstances of the offense and the history and characteristics of
the defendant." 18 U.S.C. § 3553(a)(1). Factor two is
the need for the sentence . . . (A) to reflect the
seriousness of the offense, to promote respect for the
law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the
defendant; and (D) to provide the defendant with needed
educational or vocational training, medical care, or
other correctional treatment in the most effective
manner."
Id. § 3553(a)(2). Factor three is "the kinds of sentences
available." Id. § 3553(a)(3). Factor four is the guidelines. Id.
§ 3553(a)(4). Factor five is "any pertinent policy statement . . .
issued by the Sentencing Commission." Id. § 3553(a)(5). Factor
six is "the need to avoid unwarranted sentence disparities." Id.
§ 3553(a)(6). And factor seven is "the need to provide restitution
to any victims." Id. § 3553(a)(7).

-34-
662 F.3d 588, 590 (1st Cir. 2011) (internal quotation marks

omitted), and here (don't forget) we have a below-guidelines

sentence. But the judge said much more. For example, he touched

on the seriousness of her crimes ("hundreds of kilograms of cocaine

were transported in this conspiracy" and "nothing" could have

happened without her and other couriers like her), talked about her

difficult family circumstances (she is a "widowed mother of five

children"), highlighted her lack of criminal record, alluded to

societal-protective concerns ("how many children are affected by

drugs . . .?"), stressed the need to avoid unwarranted disparities

between her sentence and Correa's (he had gotten 132 months). And

he concluded that a 128-month sentence — a term far lower than the

151-188 month guidelines range — served the purposes reflected in

§ 3553(a). We see nothing resembling an abuse of discretion here.

Trying a different tack, Shepard argues that the judge

put too much weight on one factor (eliminating unjustified

sentencing disparities) and too little weight on others (her

history and characteristics, as well as guidelines policy

statements dealing with downward departures for things like family

responsibilities).25 Over and over again we have said that judges

are not required to "give each factor equal billing," noting that

25
A quick word about sentencing disparities: sentencers can
consider disparities between codefendants, we have noted — even
though § 3553(a)(6) chiefly addresses disparities among defendants
nationwide. See, e.g., United States v. Ayala-Vazquez, 751 F.3d 1,
32 (1st Cir. 2014).

-35-
because sentencing outcomes "turn mostly on 'case-specific and

defendant-specific'" nuances, "'[t]he relative weight of each

factor will vary with the idiosyncratic circumstances of each

case'" — and thus judges can tweak "'the calculus accordingly.'"

United States v. Denson, 689 F.3d 21, 28-29 (1st Cir. 2012)

(quoting United States v. Dixon, 449 F.3d 194, 205 (1st Cir.

2006)). The judge did what the caselaw permits. So again we find

no abuse of discretion.

Shepard also contends — for the first time on appeal,

though — that the judge did not adequately explain his reasoning

for her sentence. But what we have already written shows she is

wrong. A judge must say enough for us to meaningfully review the

sentence's reasonableness. See United States v. Fernández-Cabrera,

625 F.3d 48, 53 (1st Cir. 2010) (adding that a judge's explanation

need not be "precise to the point of pedantry"). And the judge's

explanation was up to snuff — which is another way of saying that

he committed no error in this respect, much less plain error.

(b)
Substantive Reasonableness

Not only is Shepard's sentence procedurally reasonable —

it is substantively reasonable too, which is to say not too harsh

under the "totality of the circumstances." Gall v. United States,

552 U.S. 38, 51 (2007). Her arguments otherwise — that her family

circumstances and pre-arrest rehabilitation call for a 120-month

term instead of a 128-month stretch, and that the judge placed too

-36-
much emphasis on minimizing unjust sentencing disparities — are

essentially a rebranding of her failed procedural-unreasonableness

theories. When all is said and done, a claim like hers is a tough

sell — more so when the sentence comes within a correctly-

calculated guidelines range, see Clogston, 662 F.3d at 592-93, and

here (as we have said, hopefully without trying the reader's

patience) we have a below-guidelines term! For every case there is

a range of reasonable punishment. See, e.g., United States v.

Walker, 665 F.3d 212, 234 (1st Cir. 2011). And because Shepard's

sentence (backed by the judge's plausible explanation) does not

fall outside "the expansive universe" of acceptable outcomes, we

spot no abuse of discretion — which leads straight to affirmance.

See United States v. King, 741 F.3d 305, 308 (1st Cir. 2014).

FINAL WORDS

Our work over, we affirm Correa's and Shepard's

convictions, and we affirm Shepard's sentence too.

-Concurring and Dissenting Opinion Follows-

-37-
 BARRON, Circuit Judge, concurring in part and dissenting

in part. I fully join the majority's treatment of Denise Shepard-

Fraser's challenges to the sufficiency of the evidence and the

reasonableness of her sentence. I cannot join, however, the

majority's treatment of Jorge Correa-Osorio's challenge to the in-

court identification. In my view, that challenge has merit, and,

accordingly, I would reverse the judgment of conviction on the

ground that the District Court plainly erred in allowing the jury

to weigh that evidence.

I.

Eyewitness testimony is undeniably powerful. That

testimony is all the more powerful when the eyewitness identifies

the defendant right in front of the jury. Ordinarily, we let

juries weigh such testimony, just as they may weigh any other

admissible evidence. But in certain circumstances, concerns about

the reliability of an in-court identification -- with all the

persuasive force that comes from the witness identifying "that man"

as the person who committed the crime -- require more than faith in

the jury's capacity to evaluate what is reliable and what is not.

See, e.g., Kampshoff v. Smith, 698 F.2d 581, 585 (2d Cir. 1983)

("[D]oubts over the strength of the evidence of a defendant's guilt

may be resolved on the basis of the eyewitness' seeming certainty

when he points to the defendant and exclaims with conviction that

veils all doubt, '[T]hat's the man!'" (second alteration in

-38-
original) (quoting United States v. Wade, 388 U.S. 218, 235-36

(1967))).

One such circumstance arises when the government elicits

the identification in court after having used suggestive out-of-

court means to prompt the witness to make an earlier

identification. See Simmons v. United States, 390 U.S. 377, 382

(1968); see also Manson v. Brathwaite, 432 U.S. 98 (1977). The

classic out-of-court, government-designed, suggestive means are a

stacked lineup, see Foster v. California, 394 U.S. 440, 442-43

(1969), a highly suggestive photo array, see Simmons, 390 U.S. at

382, or, perhaps even worse, a show-up -- in which the government

brings the suspect before the witness in a one-to-one

confrontation, see Stovall v. Denno, 388 U.S. 293, 295 (1967).

When the government uses such out-of-court prompts

unnecessarily, due process bars the jury from weighing the in-court

identification unless it survives review under the so-called

Biggers factors. See Neil v. Biggers, 409 U.S. 188, 199-200

(1972); see also United States v. Maguire, 918 F.2d 254, 264-65

(1st Cir. 1990) ("The Supreme Court has declared generally the same

test for the admissibility of an in-court identification subsequent

to a suggestive out-of-court identification as it has employed for

admission of an allegedly suggestive pretrial out-of-court

identification."). Courts use those factors to decide whether the

in-court identification arises from the witness's prior encounters

-39-
with the person identified rather than from the influence of the

out-of-court suggestive prompt the government has used. See United

States v. Castro-Caicedo, 775 F.3d 93, 97 (1st Cir. 2014). And

when those factors indicate a substantial risk that the suggestive

prompt did corrupt the in-court identification -- say because the

witness encountered the person identified years before and never

since, and then only in conditions not likely to make the memory

stick with any accuracy -- then the jury may not consider the in-

court identification. Biggers, 409 U.S. at 198.

Correa does not argue to us that an out-of-court

suggestive prompt preceded this in-court identification. He

instead argues that what happened in the courtroom was alone so

suggestive as to necessitate review under Biggers. And I conclude

that, on these facts, Correa is right.

In reaching this conclusion, I recognize courtroom

identifications are a traditional feature of criminal trials. But

tradition should not distract from what to me seems obvious and

what I do not understand the majority to deny. A prosecutor who

orchestrates an in-court identification does at least risk exposing

the jury to a very misleading form of unusually powerful and

prejudicial testimony. For that reason, judges must be on the

lookout for the case in which that risk is realized -- even if it

is realized through means other than the government's prior use of

egregious out-of-court suggestive prompts.

-40-
 Here, we confront government-selected, in-court means for

prompting that, though subtle, were plenty suggestive -- and

unnecessarily so. So much so, in my view, that even on plain error

review, an inspection of the identification's reliability under

Biggers is required. See United States v. De León-Quiñones, 588

F.3d 748, 753 (1st Cir. 2009) ("To establish plain error, a

defendant 'must show an error that was plain, (i.e., obvious and

clear under current law), prejudicial (i.e., affected the outcome

of the district court proceedings), and seriously impaired the

fairness, integrity, or public reputation of the judicial

proceedings.'" (quoting United States v. Griffin, 524 F.3d 71, 76

(1st Cir. 2008))). And, after undertaking that inspection, I

further believe that due process demands a greater degree of

assurance that Correa was "that man" than this identification can

possibly supply. For that reason, I cannot agree that this in-

court identification -- on which the government's case almost

entirely rests -- may be the cause of Correa's long-term loss of

liberty.26

26
Correa received a prison sentence of eleven years. That
term, I might add, is greater than the sentences received by all
other members of the conspiracy, save for the leader, who received
a sentence of 135 months -- only three months longer than Correa's.
Correa and his co-defendant in this trial, Denise Shepard-Fraser,
were the only alleged conspirators who went to trial. All others
listed in the indictment, with the exception of one individual
against whom charges were dismissed, entered into plea agreements.

-41-
 II.

To begin, I must first explain why Perry v. New

Hampshire, 132 S. Ct. 716 (2012), does not shield from Biggers

review any in-court identification that is untainted by a prior

suggestive out-of-court prompt -- the seemingly categorical

position the Eleventh Circuit takes. See United States v. Whatley,

719 F.3d 1206, 1216 (11th Cir. 2013). But the explanation is not

hard to give. Simply put, Perry did not involve an in-court

identification at all. Perry thus cannot set the standard for how

we should treat one.

Perry concerned only whether a prior out-of-court

identification should have been subjected to review under the

Biggers factors. And Perry concluded that due process did not

require such review in that case because the government did not

orchestrate the out-of-court identification. See Perry, 132 S. Ct.

at 725-27. Rather, as Perry explained, the witness had made a

spontaneous out-of-court identification of the suspect while the

suspect stood next to a police officer in a parking lot. Id. at

721-22. The Court noted that defense counsel -- in briefing and in

argument -- explicitly conceded that the government "did not

arrange the suggestive circumstances surrounding [the]

identification," id. at 725, and that defense counsel did "not

allege any manipulation or intentional orchestration by the

police," id. (citing Tr. of Oral Arg. 5). There was, as the New

-42-
Hampshire Supreme Court found, "a complete absence of improper

state action." New Hampshire v. Perry, No. 2009-0590, 2010 WL

9105720, at *1 (N.H. Nov. 18, 2010) (quoting New Hampshire v.

Addison, 8 A.3d 118, 125 (N.H. 2010)). Thus, notwithstanding that

the circumstances of the identification may have been suggestive,

the Court concluded that the deterrence rationale that underlies

the whole Biggers line had no application. Perry, 132 S. Ct. at

726.

In my view, therefore, Perry is no per se bar to finding

plain error here. Perry is instead best read to affirm what the

Court had said before about when the Biggers test must be applied.

Due process requires the Biggers review for reliability "when law

enforcement officers use an identification procedure that is both

suggestive and unnecessary." Id. at 724. For it is only when the

government is responsible for the suggestiveness that due process

requires an inquiry into the reliability of the identification.

III.

With Perry out of the way, the issue reduces to the

following. When, if ever, should an in-court identification be

subject to Biggers review by virtue of the suggestive attributes of

what happened in the courtroom itself? Substantial precedent shows

that a government-orchestrated, in-court identification may, in

some circumstances, be so suggestive as to trigger Biggers review,

even absent a prior, out-of-court suggestive prompt. See, e.g.,

-43-
United States v. Greene, 704 F.3d 298, 307-08 (4th Cir. 2013);

United States v. Rogers, 126 F.3d 655, 657-58 (5th Cir. 1997)

("[I]t is obviously suggestive to ask a witness to identify a

perpetrator in the courtroom when it is clear who is the

defendant."); United States v. Hill, 967 F.2d 226, 232 (6th Cir.

1992); United States v. Rundell, 858 F.2d 425, 426 (8th Cir. 1988);

see also United States v. Beeler, 62 F. Supp. 2d 136, 140-45 (D.

Me. 1999) (suppressing, in advance of trial, in-court

identification because it would be impermissibly suggestive and

unreliable). And the government does not argue otherwise.

The majority contends, however, that such review is

required only when the in-court identification involves special

features of concern. The majority then notes that, here, the

prosecutor's in-court questions or comments did not expressly draw

the witness's attention to the defendant or directly suggest the

hoped-for result. See Greene, 704 F.3d at 307-08. Nor was the

defendant in this case of a different race or gender from all other

persons in the courtroom or at counsel table. See United States v.

Archibald, 734 F.2d 938, 941 (2d Cir. 1984). But, as I will

explain, the government still orchestrated this identification to

occur in circumstances that clearly were unnecessarily suggestive

-- at least when the circumstances are considered in their

totality.

-44-
 As to orchestration, the challenged in-court

identification did not just happen. Instead, the prosecutor

brought it about through a cooperating witness, José Vega-Torres,

who had been prepped and promised (according to his own testimony)

that his cooperation would protect his wife from prosecution. And

Vega was asked to provide testimony that was -- the government

concedes -- the whole of the case against Correa.

As to suggestiveness, the prosecutor asked Vega to

identify Correa only on Vega's second day of testifying, after the

lunch break. Thus, the prosecutor asked Vega to make the

identification only after Vega had spent a day and a half on the

stand, with Correa -- the only male defendant -- seated before him

at counsel table. And during Vega's day-plus time on the stand,

defense counsel rose to object at numerous points. By the time of

the identification, then, the object of the prosecution would have

been obvious.

The majority points out that the government did not put

Correa at counsel table. He took that seat on his own, as it was

his right to do. But the government still chose to seek the

identification from Vega fully aware that the defendant was so

positioned -- and thus fully aware that Vega would be asked to

identify Correa at a moment when he was at that table and after

Vega had observed him there at substantial length. Indeed, it is

fair to say the longest look that Vega -- by his own account --

-45-
ever had of Correa was during the time the government had asked

Vega to appear on the stand prior to asking him to make the

identification. Cf. United States v. Montgomery, 150 F.3d 983, 992

(9th Cir. 1998) ("permitting [the witness] to view [the defendant]

in the courtroom the day before the witness was scheduled to

testify" found to be a "suggestive procedure[]").

In these circumstances, I do not believe Correa is

overstating things in contending that the government's presentation

of the identification was "the functional equivalent of the one

person show-up, a classically suggestive method of identification

in which an eyewitness is confronted with only one option to

cho[o]se from." See Greene, 704 F.3d at 307-08 (4th Cir. 2013);

Hill, 967 F.2d at 232; Beeler, 62 F. Supp. 2d at 144-45;

Commonwealth v. Crayton, 21 N.E.3d 157, 166 (Mass. 2014) ("Where,

as here, a prosecutor asks a witness at trial whether he or she can

identify the perpetrator of the crime in the court room, and the

defendant is sitting at counsel's table, the in-court

identification is comparable in its suggestiveness to a showup

identification."). And, for that reason, I believe it clear that

the identification's reliability must be tested under the Biggers

factors.

After all, the government cannot show that these

suggestive means were somehow "necessary." See Perry, 132 S. Ct.

at 724 (finding "[c]rucial" to the Court's allowance of a

-46-
suggestive procedure in Stovall that it was a "necessity");

Stovall, 388 U.S. at 302 (finding a suggestive encounter necessary

because "[n]o one knew how long [the hospitalized witness] might

live" and thus "the police followed the only feasible procedure");

United States ex rel. Kirby v. Sturges, 510 F.2d 397, 403-04 (7th

Cir. 1975) (Stevens, J.) (concluding, despite there being "no

evidence of bad faith or excessive zeal to obtain a conviction,"

that a showup was "unnecessarily suggestive" because it was "not

justified by any exigent circumstances, or even by any minimal

showing of inconvenience"). True, as a general matter, the

prosecution is entitled to present its case in the order it thinks

best. But that standard feature of the way that we organize

criminal trials does not mean it was necessary for the government

to elicit the identification of Correa in the highly suggestive way

that it chose.

The government could have relied on an identification by

Vega that he made out of court through a non-suggestive means. In

fact, the government introduced photo arrays showing that Vega had

made out-of-court identifications of other alleged conspirators.

Yet the government chose not to pursue that same approach at trial

in Correa's case. And, even if the government wished to proceed

with an in-court identification, the government acknowledged at

oral argument that there were mitigating measures that could have

been taken in court but were not. See Beeler, 62 F. Supp. 2d at

-47-
144-45 (noting "that a number of courts have reasoned that the

preferred remedy for a suggestive in-court identification is not,

necessarily, the suppression of the identification but an in-court

lineup or some other protective measure to ensure the fairness of

the identification and cross-examination of the eyewitness"); see

also Kirby, 510 F.2d at 405-06 (describing "unanimity among

scholars" that "evidence of, or derived from, a showup

identification should be inadmissible unless the prosecutor can

justify his failure to use a more reliable identification

procedure").

I recognize that, in one respect, the situation is

different when, unlike here, an in-court identification is made

only after a prior, suggestive out-of-court identification. In

that type of case, the jurors do not have the opportunity to

witness the complained of suggestive circumstance themselves.

Here, by contrast, the jurors did, as they obviously watched what

happened in court. But, that does not show that an in-court

identification of this sort must be left to the jury to weigh. For

while in theory the jurors were well-positioned to evaluate the

suggestiveness of what they saw, in fact the jurors were exposed to

a seemingly certain identification made in a very suggestive

setting. In other words, the fact that the jury witnessed this

particular identification does not solve the problem. It

potentially is the problem. See Kampshoff, 698 F.2d at 585 ("There

-48-
can be no reasonable doubt that inaccurate eyewitness testimony may

be one of the most prejudicial features of a criminal trial.

Juries, naturally desirous to punish a vicious crime, may well be

unschooled in the effects that the subtle compound of suggestion,

anxiety, and forgetfulness in the face of the need to recall often

has on witnesses." (footnote omitted)).

In light of the "obvious[] suggestive[ness]" of the

circumstances in which the government chose to elicit the

identification, I conclude -- as the Fifth Circuit did more than a

decade ago in considering an unobjected-to, in-court identification

-- that even on plain error review, the Biggers test applies. See

Rogers, 126 F.3d at 658. In that case, the Fifth Circuit

confronted circumstances not unlike those at issue here and

undertook such reliability review because the witness had been

asked to make the identification "when it [was] clear who [was] the

defendant." Id. Rogers explained that the witness initially

provided testimony without making any identification but was then

called back to the stand the next day to identify the defendant,

the only black man at counsel table, as the culprit.27 Id. at 657-

27
The prosecutor identified "something odd" in the witness's
demeanor during her initial testimony and afterwards had the FBI
case agent approach her. Rogers, 126 F.3d at 657. The witness
told the agent during that conversation that she recognized the
defendant as the culprit and the government then asked -- and was
granted permission -- to recall her to the stand. Id. And while
the defendant's counsel objected to the witness being recalled,
counsel did not object to her identification after she took the
stand. Id. at 657-58.

-49-
58 & n.1. And while the Fifth Circuit noted that the concern about

suggestiveness was "heightened" in that case because the witness

was of a different race from the defendant, id. at 658, here that

same concern is heightened by the duration of the witness's pre-

identification testimony and the gender of the defendant relative

to the other defendant at counsel table.

In both cases, therefore, the key fact is the ultimate

one that the Biggers line suggests to me should matter: each time,

it was obvious who the defendant was when the prosecution asked the

witness to make the in-court identification. So although I grant

that there is no case finding plain error on facts exactly like

these, it seems to me that the relevant inquiry into suggestiveness

that Biggers requires yields an answer no less obvious in Correa's

case than the Fifth Circuit found in Rogers. And given that "the

'plainness' of [an] error can depend on well-settled legal

principles as much as well-settled legal precedents," United States

v. Brown, 352 F.3d 654, 664 (2d Cir. 2003) (emphasis omitted), I do

not believe counsel's failure to object at trial should shield this

in-court identification from the scrutiny that Biggers plainly

requires in comparably suggestive circumstances.

IV.

In consequence of the unnecessarily suggestive means that

the government used, I believe we must apply the Biggers factors to

test whether Vega's identification was corrupted by the

-50-
suggestiveness of the setting. See 409 U.S. at 199-200.28 And it

is plain to me that, after doing so, we should have no confidence

that Vega's identification rested on his recollection of Correa's

appearance from prior encounters -- to the extent they qualified as

"encounters" -- rather than from the suggestive circumstances in

which the prosecutor asked Vega to make his choice.

Vega testified to viewing Correa, known to him in the

conspiracy as "El Don," on only three occasions, each of which

occurred long ago. The only physical interaction was brief, at

most lasting a matter of minutes. And the encounters between the

two men could be described, at best, as indirect: putting luggage

in a car, a sighting through a car window, and finally, Vega's

glimpse of "El Don" handling baggage on the tarmac while Vega

waited in the airport from what must have been a substantial

distance. The witness never purported to have had a personal

relationship with the defendant. Nor did Vega offer any previous

description that matched Correa's.

28
The factors to consider in evaluating whether the
identification is reliable despite the unnecessary suggestiveness
of the identification procedure include "the opportunity of the
witness to view the criminal at the time of the crime, the witness'
degree of attention, the accuracy of the witness' prior description
of the criminal, the level of certainty demonstrated by the witness
at the confrontation, and the length of time between the crime and
the confrontation." Biggers, 409 U.S. at 199-200. Of course, as
the majority notes, courts need not apply these factors to test the
reliability of an identification not orchestrated by the government
to occur in an unnecessarily suggestive way. See Maj. Op. 24 n.17.

-51-
 Furthermore, Vega claimed to have interacted with Correa

only in 2006, while Vega's in-court identification of Correa

occurred five years later, in 2011. Biggers suggested, however,

that a far shorter, seven-month gap between sighting and

identification counted against the identification's reliability.

Id. at 201. And while we have sometimes permitted lengthy time

gaps, we have not been so forgiving when the encounters were as

fleeting and indirect as these. See, e.g., United States v.

Flores-Rivera, 56 F.3d 319, 331 (1st Cir. 1995) (excusing seven-

year time gap when "other reliability criteria were sufficiently

persuasive").

Vega did not appear to hesitate in identifying Correa

from the stand. But certainty on the part of the witness does not

reveal much. See United States v. Jones, 689 F.3d 12, 18 (1st Cir.

2012) ("[L]ack of confidence is certainly a reliable warning sign,

while the presence of confidence is probably closer to a neutral

factor."). Such apparent certainty may result from the suggestive

circumstances, and certainty after suggestive prompting cannot show

reliability. See, e.g., Raheem v. Kelly, 257 F.3d 122, 139 (2d

Cir. 2001) (finding it "difficult to view [a witness's] certainty

as an indicator of reliability independent of the suggestive

lineup").

Not surprisingly, therefore, the government does not

argue that the Biggers factors support the identification's

-52-
reliability. This identification, which should have triggered the

Biggers test, clearly cannot survive it.

V.

That leaves the issue of prejudice. See United States v.

Delgado-Marrero, 744 F.3d 167, 184 (1st Cir. 2014) (describing the

"infrequent case[] in which reversal is warranted" under the plain

error standard of review); see also Rogers, 126 F.3d at 658-60

(finding error in the admission of an obviously suggestive and

unreliable in-court identification, but holding error harmless in

light of overwhelming evidence of guilt). But here, the prejudice

is clear.

The government conceded that Vega's testimony provided

the only direct evidence that linked Correa to this conspiracy.

And a review of the record also reveals many -- in some cases,

inexplicable -- weaknesses in the government's case. These

weaknesses include: the inability of the testifying investigative

agent to explain how and why Correa was identified as a member of

the conspiracy; the evidence suggesting Correa worked for a

different baggage handling company than any of the other co-

conspirators tasked with the same alleged role in the conspiracy;

the testimony suggesting Vega made out-of-court identifications of

many of the co-conspirators without apparently making an out-of-

court identification of Correa; another testifying co-conspirator's

non-recognition of Correa; and the failure of the government to

-53-
call any co-conspirators -- despite having entered into plea

agreements with them -- who had dealt personally with Correa.

There is some corroborating evidence of Correa's

involvement in the conspiracy: a resume listing his email address

as including the words "El Don" and his wife's ownership of the

same car Vega testified that "El Don" had at Vega's one interaction

with him. But that evidence itself traces back only to Vega's

testimony. Thus, the other evidence against Correa gives no

assurance that, even absent the identification by Vega, the jury

would have convicted. See, e.g., United States v. Casas, 356 F.3d

104, 123-24 (1st Cir. 2004) (vacating conviction of defendant

Cunningham when -- apart from improper testimony -- only evidence

of involvement with conspiracy was his identification by three co-

conspirators with whom he had few contacts).

This case, then, is like those that have given courts the

most pause about the due process implications of admitting in-court

identifications. The problematic identification here was essential

to the government's case. See Raheem, 257 F.3d at 142 ("The

identification testimony of [the witnesses] clearly bore on an

essential issue, the identity of the shooter. And that testimony

was crucial to the prosecution's case, for the State presented no

evidence other than the testimony of [the witnesses] to tie [the

defendant] to the events."); Kampshoff, 698 F.2d at 588 ("[A]ll

told, absent the identification testimony, the evidence against

-54-
Kampshoff is simply not overwhelming."); cf. United States v.

Williams, 436 F.2d 1166, 1168 (9th Cir. 1970) ("[W]here the

question of guilt or innocence hangs entirely on the reliability

and accuracy of an in-court identification, the identification

procedure should be as lacking in inherent suggestiveness as

possible.").

Still, to succeed on plain error review, the defendant

must make one more showing. He must demonstrate that the error

"seriously impaired the fairness, integrity, or public reputation

of the judicial proceedings." De León-Quiñones, 588 F.3d at 753

(quoting Griffin, 524 F.3d at 76). But that additional requirement

poses no obstacle for Correa. When the government introduces an

unnecessarily suggestive in-court identification on which nearly

the whole of the prosecution depends, it seems to me clear that

this last part of the plain error test is met.

VI.

I recognize the concern about opening the door to other

successful attacks on in-court identifications. But not every in-

court identification is similarly staged, with the cooperating

witness prepped to testify, brought to the stand, and then prompted

to give an identification of the one male defendant at counsel

table and then only after having provided a day and a half of

testimony. Not every in-court identification rests on minimal

contacts that occurred long ago and thus plainly lacks sufficient

-55-
indicia of reliability to survive the Biggers test. Not every

prosecution rests so heavily on an in-court identification this

shaky. And fewer still are the prosecutions that are so dependent

on in-court identifications that share these concerning attributes.

I thus do not think it too much to require the government to make

the case against Correa on evidence less likely to mislead the jury

in this needless way. And, in my view, the Due Process Clause

requires that same conclusion.

I respectfully dissent.

-56-