United States v. Cabrera-Rivera

United States Court of Appeals
For the First Circuit

No. 08-1702

UNITED STATES OF AMERICA,

Appellee,

v.

ALFREDO CABRERA-RIVERA,

Defendant, Appellant.

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

[Hon. José A. Fusté, U.S. District Judge]

Before

Torruella, Selya, and Dyk,*
Circuit Judges.

Dean Stowers, for appellant.
Julia M. Meconiates, 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.

September 25, 2009

*
Of the Federal Circuit, sitting by designation.
 DYK, Circuit Judge. Following a jury trial, Alfredo

Cabrera-Rivera was convicted of three counts: (1) aiding and

abetting in the interference of commerce by threats or violence in

violation of 18 U.S.C. §§ 1951 and 2; (2) aiding and abetting in

the use, carriage, and discharge of a weapon during and in relation

to a crime of violence in violation of 18 U.S.C. §§

924(c)(1)(A)(iii) and 2; and (3) aiding and abetting in the

possession of a stolen firearm in violation of 18 U.S.C. §§ 922(j)

and 2. All of the counts were connected with the robbery of an

armored truck in Bayamón, Puerto Rico. On appeal, Cabrera-Rivera

contends that his convictions should be reversed because the

government failed to establish a nexus to interstate commerce as

required by the Hobbs Act, 18 U.S.C. § 1951. Cabrera-Rivera

contends alternatively that his convictions should be vacated and

a new trial awarded because the district court permitted the

government, over his objection, to use the out-of-court statements

of Cabrera-Rivera’s accused accomplices as evidence of his guilt.

Although we find that the government established the required nexus

to interstate commerce, we conclude that Cabrera-Rivera’s

Confrontation Clause rights were violated by the admission of

hearsay evidence. We accordingly vacate and remand.

I.

On August 10, 2006, a grand jury returned a three-count

joint indictment against Elías Cruz-Marrero, Jonathan Baez-

-2-
Rodriguez, and appellant Cabrera-Rivera. Count one alleged that

the three men “aiding and abetting each other, did unlawfully

obstruct, delay and affect . . . commerce,” to wit, by robbing a

Loomis Fargo armored truck, in violation of 18 U.S.C. §§ 1951(a)

and 2.1 Counts two and three alleged related weapons charges under

18 U.S.C. §§ 924(c)(1)(A)(iii), 922(j), and 2. Cruz-Marrero’s case

was resolved by a guilty plea prior to jury selection, and jury

selection proceeded with Baez-Rodriguez and Cabrera-Rivera as co-

defendants. After jury selection, but before trial, Baez-

Rodriguez’s case was also resolved by a guilty plea, leaving only

Cabrera-Rivera to proceed to trial on January 28, 2008.

For purposes of gauging the sufficiency of the evidence,

we view the testimony presented at trial in the light most

favorable to the verdict. United States v. Capozzi, 347 F.3d 327,

328 (1st Cir. 2003). We first describe the evidence apart from the

disputed confessions of Cruz-Marrero and Baez-Rodriguez.

A robbery of a Loomis Fargo armored truck took place in

Bayamón, Puerto Rico, on July 26, 2006, at approximately 5:45 p.m.

Footage from a city surveillance camera system showed that a white

Acura appeared to be following the Loomis Fargo armored truck

1
For purposes of 18 U.S.C. § 1951, “commerce” is defined as
“commerce within the District of Columbia, or any Territory or
Possession of the United States; all commerce between any point in
a State, Territory, Possession, or the District of Columbia and any
point outside thereof; . . . and all other commerce over which the
United States has jurisdiction.” 18 U.S.C. § 1951(b)(3).

-3-
shortly before 5:30 p.m. and that at 5:33 the Acura was parked at

a Total gas station. The Acura’s license plate and occupants were

not visible on the surveillance footage. Cabrera-Rivera’s wife

testified that on the early evening of July 26, 2006, she and

Cabrera-Rivera drove to the Total gas station in Bayamón in a white

Acura. Cabrera-Rivera’s wife exited the car, and two men named

“Elías” and “Jonathan” arrived and got into the car with Cabrera-

Rivera. The three men then drove away.

Shortly after 5:30 p.m. that same day, employees at the

Taco Bell restaurant in the Plazoletta Canton Mall in Bayamón

noticed two suspicious men sitting at a table without consuming

food. An employee later identified one of the two men as her

neighbor, Elías Cruz-Marrero. At some point between 5:30 and 6:00,

two Loomis Fargo employees on an armored truck route (Ricardo Miró

and Jose Libran) made a stop at the Taco Bell to pick up the

restaurant’s cash deposit. It was raining as Libran, the driver,

backed the armored truck into the parking space nearest the entry

of the Taco Bell. Miró, the courier, left the rear compartment of

the truck and entered the restaurant to retrieve a $4,153 cash

deposit from the manager. After placing the cash from the

restaurant manager into his courier bag and commencing his return

to the truck, Miró paused at the door of the restaurant for several

seconds to wait for the pouring rain to subside.

-4-
 As he waited, the two men who had been sitting at the

table and a third man standing outside the door surrounded Miró.

Two Taco Bell employees later identified Cabrera-Rivera as the man

outside the door. One of the assailants hit Miró on the back of

the head, informed him he was being robbed, and took the bag

containing the cash. The assailants took Miró’s pistol from his

holster and forced him outside and into the back of the truck. The

men demanded that Miró open the truck’s vault; after Miró explained

that he did not have access to it, one of the assailants shot him

in the leg before leaving the truck. Miró later identified the man

who shot him as Jonathan Baez-Rodriguez. Upon realizing that the

assailants had exited the truck, Libran drove away together with

Miró.

Witnesses testified that three men were seen fleeing the

scene on foot. Although no witness testified to the presence of a

white Acura at the Taco Bell, a witness did testify that at

approximately 6:20 p.m., about half an hour after the robbery, two

persons in a white Acura with license plate number CDB 901 checked

into the Las Villas motel in Bayamón. It was established that

Cabrera-Rivera’s Acura bore license plate number “CDB 901.” The

witness who testified that the Acura was at the motel did not

identify either of the car’s two occupants. A police officer did

testify that, approximately two weeks after the robbery, he saw

Cabrera-Rivera driving in his white Acura.

-5-
 At trial the government sought to introduce (over

Cabrera-Rivera’s objection) various out-of-court statements

allegedly made by Cabrera-Rivera’s alleged accomplices, Baez-

Rodriguez and Cruz-Marrero. First, the government presented the

testimony of FBI special agent Carlos Torres, the case agent

assigned to the robbery investigation. Torres had interviewed

Cruz-Marrero after the robbery. The following exchange occurred

between the court, the government’s prosecutor (Mr. Bazan), and

defense counsel:

Mr. Bazan: Sir, at the time Elias [Cruz-Marrero]
was arrested, was he advised of his
rights?

The witness: Immediately after, yes, sir.

Defense counsel: Your Honor, we may have
a Bruton objection.

. . . .

Mr. Bazan: What action did you take? First of all,
did Mr. Elias admit to his
participation in the robbery?

Defense counsel: Objection, Your Honor.

THE COURT: Overruled. He can tell us that.

The witness: Yes, he did.

Following the court’s ruling and a follow-up question by the court,

the government continued to question agent Torres about the

information obtained through Cruz-Marrero’s confession:

THE COURT: Okay. So Elias said he confessed
before you basically.

-6-
The witness: Yes, sir.

THE COURT: And I bet he gave you some additional
information. He wants to know, without
giving the specifics, what is it you do
as a result of the other information he
gives you.

The witness: We located the house of the second
individual that was involved in the
robbery. And, as a result of that
information and information alone, we
were able to obtain a search warrant
and arrest warrant for the second
individual, which was arrested on the
same day hours after Elias had been
arrested by us.

Mr. Bazan: And who was that second individual?

The witness: Jonathan Baez Rodriguez.

. . . .

Mr. Bazan: Sir, what other location, if any, did
you go to obtain evidence pursuant to
this interview with Elias
Cruz-Marrero?

The witness: We went to Las Villas Motel in
Levittown area I believe. Either
Levittown or the town adjacent to that.
And we were able to retrieve a log
that . . . the motel personnel prepared
on a daily basis that shows a car with
the description that matched the same
car Elias has provided in interrogation
entering the motel minutes after the
robbery had taken place.

Mr. Bazan: Now, this information about the motel,
did you take that information from
Elias Cruz?

The witness: Yes, sir.

-7-
 Mr. Bazan: Now, of course . . . Elias
Cruz-Marrero spoke to you. Did he
admit his participation in the robbery?

The witness: Completely, yes, sir.

Mr. Bazan: And pursuant to that admission of his
participation, did he——what else did he
admit as to the part of the robbery?
Did he receive a part of the robbery?

Defense counsel: Objection, Your Honor.

. . . .

Mr. Bazan: What amount of money did Mr. Elias
Cruz-Marrero receive as his
participation in the robbery?

The witness: 11 hundred dollars, sir.

Another agent later testified that the subsequent search of

Jonathan Baez-Rodriguez’s house turned up the $1,100. Finally,

agent Pablo Rivera of the FBI task force took the stand and the

following exchange occurred concerning Jonathan Baez-Rodriguez:

Mr. Bazan: Did he agree to waive his rights and
give you a statement?

The witness: Yes, he did, sir.

Mr. Bazan: Now, please pay attention to the
question I'm going to ask you right
now. Did he admit to participating in
the robbery at Taco Bell on the 26th of
July, 2006?

Defense counsel: Objection, Your Honor.

THE COURT: Overruled.

Defense counsel: Mr. Jonathan Baez is not here to——

THE COURT: It doesn’t matter. Whether he admitted
or not, that’s all.

-8-
 The witness: Yes, he did, sir.

Mr. Bazan: And did he admit what, if any, was his
participation in the robbery?

The witness: Yes, he did, sir.

. . . .

Mr. Bazan: Now, aside from being a look out at the
Texaco gas station, according to him,
how much, if any, did he admit to
receiving as part of the proceeds of
the robbery?

The witness: $300, sir.

At the close of the government’s evidence, Cabrera-Rivera

made a motion pursuant to Rule 29 of the Federal Rules of Criminal

Procedure for a judgment of acquittal, which was denied. On

January 30, 2008, the jury returned a verdict of guilty on each of

the three counts of the indictment. On May 1, 2008, the district

court sentenced Cabrera-Rivera to 183 months’ imprisonment.

Cabrera-Rivera timely appealed, and we have jurisdiction under 28

U.S.C. § 1291.

II.

A. Federal Jurisdiction Under 18 U.S.C § 1951(a)

On appeal, Cabrera-Rivera first urges that his conviction

should be reversed because the government failed to adduce

sufficient evidence that the robbery affected commerce, as required

by 18 U.S.C. § 1951(a). The parties dispute the appropriate

standard of review to be applied to Cabrera-Rivera’s challenge to

the sufficiency of the evidence on this element of the crime.

-9-
Cabrera-Rivera contends that de novo review is required because he

properly preserved his objection, see United States v. Rodriguez-

Casiano, 425 F.3d 12, 14 (1st Cir. 2005), while the government

argues that Cabrera-Rivera did not properly raise this theory below

and thus our review is for only “plain error,” United States v.

Rivera-Rivera, 555 F.3d 277, 285 & n.7 (1st Cir. 2009). We need

not resolve this dispute, because Cabrera-Rivera’s challenge fails

under even the less deferential standard of review.

The Hobbs Act, under which Cabrera-Rivera was convicted,

provides that “[w]hoever in any way or degree obstructs, delays, or

affects commerce or the movement of any article or commodity in

commerce, by robbery or extortion . . . shall be fined . . . or

imprisoned . . . .” 18 U.S.C. § 1951(a) (emphasis added).2 To

prove that a robbery violated the provisions of the Hobbs Act, the

government need demonstrate only “a de minimis interference with

commerce.” Rivera-Rivera, 555 F.3d at 286 (quotation marks

omitted). When a business is the victim of a robbery, an effect on

interstate commerce may generally be demonstrated by showing “(1)

the business engaged in interstate commerce, and (2) that the

2
We note that in addition to interstate commerce, 18 U.S.C.
§ 1951(b)(3) also includes within the definition of “commerce” any
“commerce within . . . any Territory or Possession of the United
States.” (Emphasis added.) Because the government does not rely on
the alternative definition of “commerce” in § 1951(b) and the
general allegations of the indictment refer to “interstate
commerce,” we need not decide whether that broader definition would
be satisfied here.

-10-
robbery either depleted the assets of the business . . . or

resulted in the business’s temporary or permanent closure.” Id.

(citing Rodriguez-Casiano, 425 F.3d at 15, and United States v.

Cruz-Rivera, 357 F.3d 10, 14 (1st Cir. 2004)).

There is no serious question but that Loomis Fargo, a

company engaged in the transportation of money “from the Federal

Reserve to places of business or vice versa,” was a business

engaged in interstate commerce. The evidence presented by the

government was also sufficient for the jury to conclude that the

robbery depleted Loomis Fargo’s assets. Loomis Fargo assumed the

loss of the more than $4,000 taken from its custody during the

robbery. Additional testimony established further effects on

commerce from the robbery: Loomis Fargo’s operations on the route

were disrupted, and other business clients did not receive services

that day due to the robbery. Taken as a whole, the government’s

evidence of the robbery’s effect on interstate commerce was

sufficient to support the jury’s verdict. See Capozzi, 347 F.3d at

335 (government need show only “a realistic probability of a de

minimis effect on interstate commerce”)(quotation marks

omitted)(citing United States v. Butt, 955 F.2d 77, 80 n. 2 (1st.

Cir. 1992)).

B. Confrontation Clause Objection

Cabrera-Rivera also contends that his convictions on all

three counts should be vacated and a new trial awarded because the

-11-
government made improper use of out-of-court statements of his

alleged co-participants, Cruz-Marrero and Baez-Rodriguez, in

violation of Cabrera-Rivera’s Sixth Amendment confrontation right.3

The Confrontation Clause of the Sixth Amendment to the

Constitution provides that a criminal defendant “shall enjoy the

right . . . to be confronted with the witnesses against him . . .

.” U.S. Const. amend. VI. In Crawford v. Washington, the Supreme

Court made clear that the Confrontation Clause generally prohibits

the admission of testimonial out-of-court statements against a

criminal defendant. 541 U.S. 36, 68 (2004); see also United

States v. Earle, 488 F.3d 537, 542 (1st Cir. 2007) (“Crawford held

that the Confrontation Clause bars admission of testimonial hearsay

in a criminal case unless the declarant is unavailable and the

accused has had a prior opportunity for cross-examination.”).

There is no dispute that the out-of-court confessions of Elías

Cruz-Marrero and Jonathan Baez-Rodriguez, “taken by police officers

in the course of [custodial] interrogations,” are testimonial in

nature. Crawford, 541 U.S. at 52. Thus, unless the statements

fall within one of the narrow categories of out-of-court

3
Cabrera-Rivera contends, and the government apparently does
not dispute, that a reversal of Cabrera-Rivera’s conviction on
count one (interference with commerce by robbery under 18 U.S.C.
§ 1951) would in this case be sufficient to require reversal of the
convictions on the two related weapons counts under 18 U.S.C.
§§ 922(j) and 924(c)(1)(A) as well.

-12-
testimonial statements that do not offend the Confrontation Clause,

admission of the statements at trial was improper.

This court has identified three circumstances where out-

of-court statements, though testimonial, may nevertheless properly

be admitted into evidence: where “(1) the statement is not hearsay

in that it is being admitted for a purpose other than establishing

the truth of the matter asserted; (2) the declarant testifies at

trial; or (3) the defendant had a prior opportunity to

cross-examine the declarant and the declarant is unavailable.”

United States v. Cruz-Diaz, 550 F.3d 169, 176 (1st Cir. 2008).

On appeal, the government relies solely upon the first

exception, contending that the statements of Cruz-Marrero and Baez-

Rodriguez (through the testimony of agents Torres and Rivera) are

not hearsay. Thus, the government argues, the introduction of the

confessions raises no Confrontation Clause problem because “the

statements were not admitted to prove the truth of the matter

asserted, but rather to put the investigation into context.”

Appellee’s Br. 16. As this court has previously noted “officers

should not be put in the misleading position of appearing to have

happened upon the scene” of the crime and “therefore should be

entitled to provide some explanation for their presence.” United

States v. Maher, 454 F.3d 13, 20 (1st Cir. 2006) (quoting 2 Broun

et al., McCormick on Evidence § 249, at 103 (5th ed. 1999)). The

government argues that it should equally be able to provide context

-13-
for the discovery of other evidence, such as the registration card

obtained at the Las Villas motel. Appellee’s Br. 17.4

Although “[s]ometimes the rationale that an out-of-court

statement provides context for other admissible evidence will be

valid,” it is plainly not the case that every “statement by an

informant to police which sets context for the police

investigation” is admissible. Maher, 454 F.3d at 22. Such an

“impossibly overbroad” rule would allow the so-called “context”

exception to effectively eviscerate the protection against

testimonial hearsay provided by the Sixth Amendment and recognized

in Crawford. Id.; see also United States v. Silva, 380 F.3d 1018,

1020 (7th Cir. 2004) (“Allowing agents to narrate the course of

their investigations, and thus spread before juries damning

information that is not subject to cross-examination, would go far

toward abrogating the defendant’s rights under the sixth amendment

and the hearsay rule.”).

There are two basic problems with the government’s

context theory here. First, the out-of-court statements were used

4
See United States v. Jiménez, 419 F.3d 34, 44 (1st. Cir.
2005). See also Cruz-Diaz, 550 F.3d at 178 (“Out-of-court
statements offered not to prove the truth of the matter asserted
but merely to show context——such as a statement offered for the
limited purpose of showing what effect the statement had on the
listener——are not hearsay.”)(citing United States v. Bailey, 270
F.3d 83, 87(1st Cir. 2001); United States v. Walter, 434 F.3d 30,
34 (1st Cir. 2006) (informer’s out-of-court statements during taped
“sting” admissible are not hearsay when necessary to provide
context for defendant’s responsive admissions on tape).

-14-
to emphasize the guilt of Cabrera-Rivera’s alleged accomplices,

rather than to provide context for the discovery of other

admissible evidence. A central contention of the government’s case

was that three men were involved in the robbery; the jury was aware

that Cruz-Marrero and Baez-Rodriguez were named with Cabrera-Rivera

in the indictment. The jury had additional knowledge that Baez-

Rodriguez was previously Cabrera-Rivera’s co-defendant, as jury

selection proceeded with both men to be tried jointly. In opening

statements, the government referred to Cruz-Marrero and Baez-

Rodriguez as Cabrera-Rivera’s “co-defendants.” The emphasis on

Cabrera-Rivera’s co-participants’ admissions of guilt directly

suggested that Cabrera-Rivera was guilty as well.

This improper purpose is particularly glaring with

respect to the testimony concerning the amount of money that Baez-

Rodriguez and Cruz-Marrero received. The government elicited from

the FBI agents not only the mere fact of confession by Cruz-Marrero

and Baez-Rodriguez, but also detailed testimony of how much money

each admitted to having received from the robbery. These

additional details——that Cruz-Marrero admitting to having received

$1,100 and Baez-Rodriguez $300——bore no relevance to the police

investigation of Cabrera-Rivera and added no necessary “context.”

Their only purpose was the improper purpose of demonstrating that

the two men had in fact participated in the robbery. The

government made considerable use of this evidence in its closing

-15-
argument to directly suggest that Cruz-Marrero’s and Baez-

Rodriguez’s statements somehow established the guilt of Cabrera-

Rivera as well:

You will also remember that among the things that
Elías Cruz-Marrero told the FBI is that his participation
in the robbery was $1,100. So in order to prove this
case beyond reasonable doubt, I brought evidence of a
search warrant that was made at the home of Jonathan
Baez.

And [lo] and behold, what amount of money did we
find at his house? In different places of the house
$1,100. The exact number the other aider and abetter,
Elías, had also received as his participation in the
robbery.

So you put that together, you make a determination
of participation, of aiding and abetting, of being part
and attempting to obtain a result by way of the robbery
of an armored truck.

Such use of the unconfronted, out-of-court confessions of Cruz-

Marrero and Baez-Rodriguez contradicts the government’s contention

that the statements merely provided “context” for the government’s

investigation. See Crawford, 541 U.S. at 40, 66 (noting that

prosecution “relied on [the challenged hearsay] in closing, arguing

that it was ‘damning evidence’”).

Second, the government’s context theory with respect to

investigative leads has no relationship to the testimony concerning

Baez-Rodriguez’s confession; the government did not contend that

Baez-Rodriguez provided any investigative leads. The government

points out that Cruz-Marrero was the source of investigative leads,

but the government fails to show why the details as to Cruz-

-16-
Marrero’s confession were necessary to explain the investigative

source. As this court has previously noted, the government could

simply have had the officers testify that they discovered the

evidence based on “information received.” Maher, 454 F.3d at 20

(quoting 2 Broun et al., McCormick on Evidence § 249, at 103 (5th

ed. 1999)). In any event, the government’s supposedly benign

purpose for introducing evidence of Cruz-Marrero’s out-of-court

statements is belied by the use that the government made of those

statements in closing argument. The government used Cruz-Marrero’s

statements concerning the motel to argue that one of the admitted

robbers, Cruz-Marrero, within minutes of the robbery had driven to

a motel in Cabrera-Rivera’s white Acura with Cabrera-Rivera. While

the government had independent evidence establishing that the Acura

had been driven to the motel shortly after the robbery by two men,

Cruz-Marrero’s out-of-court statements were the sole basis for the

government’s argument that the two men were Cruz-Marrero and

Cabrera-Rivera. Specifically, the government argued:

So [Cruz-Marrero] gets arrested. So he gets
debriefed, and among the things he tells is that there
was a point in time after the robbery that he went to a
motel. Not any motel. Las Villas Motel.

And then you have the owner of Las Villas Motel who
came to testify here. And she brought the record of her
business, this card, this green card and this print out.
What’s important about this green card? It has the
license plate number of the white Acura. CDB 901.

When you deliberate, you can look at the pictures of
the white Acura, which was found by the FBI last November
in the house of [Cabrera-Rivera’s] sister-in-law. And

-17-
 you will notice the license plate, CDB 901. Same car,
same Acura, same license plates, which went to Las Villas
Motel in Levittown at 6:20 in the afternoon. When you
deliberate, you just think why did they went to this
motel from 20 minutes after the robbery was committed.

In rebuttal argument the government continued to make heavy use of

Cruz-Marrero’s confession to link Cabrera-Rivera to the robbery:

How did Cabrera get to the Taco Bell? In his white
Acura. How else? How did he get to Las Villas Motel?
In his white Acura.

There were two persons inside the car when he got to
the Las Villas Motel. Well, those are facts of life.
But among the inferences that you can make as judges of
fact, legal inference, why would someone who just robbed
an armored truck go to a motel? Among the legal
inferences that you can make is they went to hide in
there. They wanted to have an alibi.

But the evidence is there. It’s a cold, hard fact
that they were in Las Villas Motel in the white Acura,
same license plate, and this is information that the FBI
obtained from a co-defendant, from [Elías] Cruz, that he
had gone to Las Villas Motel.

The government’s argument in particular was that Cruz-Marrero’s

confession (the information “that the FBI obtained from a co-

defendant, from [Elías] Cruz”) established as “a cold, hard fact

that they [Cruz-Marrero and Cabrera-Rivera] were in Las Villas

Motel in [Cabrera-Rivera’s] white Acura” and went to hide there

because they wanted to have an alibi.

Because the testimonial out-of-court statements at issue

here were offered and used for the truth of the matters asserted,

their admission was improper.

-18-
 C. Waiver and Harmlessness

Nevertheless, the government contends that Cabrera-Rivera

forfeited his Crawford argument, and that even if the argument was

not forfeited, any error was harmless. Neither contention is

persuasive.

First, the government argues that Cabrera-Rivera

forfeited his Crawford argument because he did not specifically

object to the introduction of the out-of-court statements on

Crawford grounds, instead objecting only under Bruton v. United

States, 391 U.S. 123 (1968). The government is correct that, as a

general matter, an objection on one ground does not preserve

appellate review of another potential ground for objection, and

thus a Bruton objection does not preserve a Crawford objection.

United States v. Ziskind, 491 F.3d 10, 14 (1st Cir. 2007); see also

United States v. Mercado, 412 F.3d 243, 247 (1st Cir. 2005).

We disagree, however, with the government’s contention

that Cabrera-Rivera’s objections were insufficient to raise the

Crawford objection. To be sure, Cabrera-Rivera’s counsel

referenced Bruton the first time the government attempted to elicit

the statements from special agent Torres. When taken in the

context of the facts of the case, however, we think the better

reading of that objection is that it was in fact a short-hand

reference to an objection on confrontation grounds. Notably, at

the time the objections to the out-of-court statements were made,

-19-
no co-defendant was on trial with Cabrera-Rivera. Accordingly,

making a literal Bruton objection would have made no sense. See,

e.g., Cruz-Diaz, 550 F.3d at 178 (Bruton error typically

“involv[es] the admission of a non-testifying codefendant’s

out-of-court statement during a joint trial for the purpose of

proving the truth of the matter asserted” (second emphasis added)).

In context it was obvious that counsel was objecting to Cabrera-

Rivera’s inability to confront the declarant. Counsel’s other

objections made clear that Cabrera-Rivera was objecting because of

his inability to cross-examine the alleged accomplices. See, e.g.,

Tr. Transcript (Jan. 29, 2008), at 121 (“Objection, Your

Honor . . . Mr. Jonathan Baez is not here to——”). We conclude that

Cabrera-Rivera’s objections were sufficient to preserve his

Crawford challenge.

Second, the government argues that even if the out-of-

court statements were improper, their admission and use amounted to

harmless violations of the Constitution. Even if evidence is

admitted in error, we may affirm a judgment of conviction where the

government has met “its burden of showing that any such error was

harmless beyond a reasonable doubt.” Earle, 488 F.3d at 545. In

evaluating harmlessness, we consider a number of factors, including

whether the challenged statements were central to the prosecution’s

case; whether the statements were merely cumulative of other

(properly admitted) evidence; the strength of corroborating or

-20-
contradicting evidence; the extent to which cross-examination was

permitted; and the overall strength of the case. Id. at 546.

The government argues that there was alternative evidence

(eye witness testimony) that Cruz-Marrero and Baez-Rodriguez had

participated in the robbery. This other evidence does not,

however, render admission and use of those confessions harmless.

The Supreme Court in Bruton characterized extrajudicial statements

of a codefendant as being “powerfully incriminating” and

“devastating” to the defendant. 391 U.S. at 135-36. In Cruz v.

New York, the Supreme Court again recognized the devastating

potential of such evidence even if the jury is instructed not to

consider it against the defendant. 481 U.S. 186, 193 (1987). In

any event, as discussed above, the Cruz-Marrero and Baez-Rodriguez

confessions supplied information not available from other

witnesses.

The government also argues the other evidence against

Cabrera-Rivera was overwhelming. The overall strength of the

evidence against Cabrera-Rivera (absent the improperly admitted

statements of his alleged accomplices), while sufficient to support

a jury verdict of conviction, cannot fairly be characterized as

overwhelming. While there was evidence linking Cabrera-Rivera to

Cruz-Marrero and Baez-Rodriguez immediately before the robbery, the

eyewitness identifications of Cabrera-Rivera at the robbery scene

were less than compelling. Although two Taco Bell employees did

-21-
identify Cabrera-Rivera from photo spreads, neither they nor the

Loomis Fargo employees identified Cabrera-Rivera as being one of

the assailants, and witnesses at trial did not even agree whether

two men or three had been involved in the robbery. The challenged

statements of Cabrera-Rivera’s alleged accomplices featured

centrally in the government’s closing arguments. The statements

were not merely cumulative of other evidence independently

establishing the same facts. In such circumstances, we are unable

to conclude with confidence that “[t]he government has proved

beyond a reasonable doubt that [Cabrera-Rivera] would have been

convicted even if the [statements] had not been admitted into

evidence.” Earle, 488 F.3d at 546.

III.

For the reasons set forth above, we vacate the judgment

of conviction and remand to the trial court for further

proceedings.

It is so ordered.

-22-