United States v. Vicente-Arias

United States Court of Appeals
For the First Circuit

Nos. 13-2155,
13-2500,
14-1040,
14-1078

UNITED STATES OF AMERICA,

Appellee,

v.

JOSÉ PEÑA-SANTO,
JOSÉ RAMÓN VICENTE-ARIAS,
JONATHAN GIL-MARTÍNEZ,
MANUEL LIRIANO-DE LA CRUZ,

Defendants, Appellants.

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

[Hon. Jay A. García-Gregory, U.S. District Judge]

Before
Torruella, Selya, and Dyk,*
Circuit Judges.

Carlos M. Sánchez-La Costa, for appellant Peña-Santo.
Barbara J. Sweeney, for appellant Vicente-Arias.
Kenneth Seiger, for appellant Gil-Martínez.
Leslie W. O'Brien, for appellant Liriano-de la Cruz.
Tiffany V. Monrose, 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.

*
Of the Federal Circuit, sitting by designation.
October 14, 2015

-2-
 TORRUELLA, Circuit Judge. Defendants-Appellants José

Peña-Santo ("Peña-Santo"), José Ramón Vicente-Arias ("Vicente-

Arias"), Jonathan Joel Gil-Martínez ("Gil-Martínez"), and Manuel

Liriano de la Cruz ("Liriano") (collectively "Appellants") were

jointly tried and convicted of conspiring to import cocaine and

heroin into the United States, in violation of 21 U.S.C. §§ 952(a),

960, and 963, and conspiring to possess with intent to distribute

cocaine and heroin on board a vessel subject to the jurisdiction of

the United States, in violation of 46 U.S.C. §§ 70503(a)(1),

70504(b)(1), 70506(a). Peña-Santo and Liriano were additionally

convicted of illegally reentering the United States, in violation

of 8 U.S.C. § 1326(a)(2) and (b)(1). Appellants appeal their

conspiracy convictions mainly on the grounds that improper expert

testimony and the government's conduct warrant reversal of their

convictions. They also assign error to the denial of their motions

for judgments of acquittal. Finally, Gil-Martínez challenges the

substantive reasonableness of his sentence. We have reviewed

Appellants' claims carefully and do not find merit in any of them.

Accordingly, we affirm.

I. Facts1

On the night of April 12, 2012, Ryan Perry, a Customs and

Border Patrol ("CBP") agent working as a camera operator and

1
We briefly summarize the relevant facts, reserving for our
analysis a more detailed discussion of the facts relevant to each
issue presented on appeal.

-3-
patrolling the waters from an aircraft, detected a target of

interest with "lights out" seventeen nautical miles off the coast

of Dorado, Puerto Rico, around 10:00 p.m. The target was a blue-

colored wooden yola,2 between twenty and twenty-five feet long,

riding "very low" in the water, and carrying two motors and six

fuel drums. A Maritime Patrol aircraft, along with the U.S. Coast

Guard marine unit, the Puerto Rico Joint Forces of Rapid Action

("FURA," for its Spanish acronym), and a CBP helicopter,

coordinated an intercept of the suspect vessel. When the Coast

Guard marine unit approached the vessel, the individuals were

moving "erratically" on the boat. Perry saw "objects being thrown

from the yola." Another officer who joined the interception of the

vessel, Luke Berguis from the Coast Guard, reported seeing "large,

heavy bags being tossed over by the multiple crew members," as well

as "small backpacks" and "smaller objects" that looked like cell

phones and GPS units. Agent René Galarza, of U.S. Immigration and

Customs Enforcement ("ICE"), after turning the helicopter's

spotlight on the vessel also saw "individuals dumping what appeared

to be bales."

At approximately 11:39 p.m., nearly four miles off the

coast of Dorado, the Coast Guard marine unit intercepted the yola,

which had six men on board, and ordered the men to raise their

2
A yola is a small fishing boat. For purposes of this opinion,
"yola" and "vessel" will be used interchangeably.

-4-
hands, which they did after some initial hesitance. FURA, along

with the Coast Guard marine unit, later retrieved the objects that

had been thrown into the water, which turned out to be "six heavy

dark colored [gym] bags wrapped in duct tape" that each had a

"block shape." Inside the bags were eight kilograms of 50% pure

heroin packaged in eight egg shapes and 146.5 kilograms of 74.8%

pure cocaine packaged in 131 brick shapes. The six men, identified

as Peña-Santo, Vicente-Arias, Gil-Martínez, Liriano, Bonifacio

Toribio-Almonte, and Alejandro Difot-Santos, all citizens of the

Dominican Republic, were arrested.

A grand jury returned a superseding indictment charging

the six men with conspiracy to import cocaine and heroin into the

United States, in violation of 21 U.S.C. §§ 952(a), 960, and 963

(Count 1), and conspiracy to possess with intent to distribute

cocaine and heroin on board a vessel subject to the jurisdiction of

the United States, in violation of 46 U.S.C. §§ 70503(a)(1),

70504(b)(1), 70506(a) (Count 2). Peña-Santo and Liriano were also

charged with illegally reentering the United States, in violation

of 8 U.S.C. § 1326(a)(2), (b)(1), respectively (Counts 3 and 4).3

Difot-Santos and Toribio-Almonte pleaded guilty while Appellants

were jointly tried.

3
Peña-Santo and Liriano stipulated to the fact that they had been
previously removed from the United States and that they had no
petition pending with the U.S. Citizenship and Immigration Services
to enter the United States lawfully. Peña-Santo further stipulated
to the fact that he had a previous felony conviction.

-5-
 At trial the government presented the testimony of Perry,

Berghuis, Galarza, Andrew Resk, and Joel Candelario, all of whom

participated in the interception of the yola on April 12, 2012.

Berghuis testified that wooden boats with low profiles and no

navigation lights, such as the yola used by Appellants, are harder

to see and to pick up on radar. He further testified that

Appellants' yola was painted blue on both the outside and the

inside, which made it "very hard to see at night" from an "aerial

aspect"; that it had excessive horsepower and fuel for its size;

and that it did not have any fishing or other recreational gear on

board. Instead, it carried multiple open condoms, which, based on

his experience, are often used to keep dry small objects such as

wallets and cell phones. Berghuis also identified Appellants in

court as four of the six men on board the yola when it was

intercepted and testified that he observed that more than one

individual was needed to lift the bags which had been thrown

overboard when the yola was approached by law enforcement.

The government also presented the testimony of Víctor

Taboada, who was on patrol on the Coast Guard Cutter Cushing on the

night of the interception; Abel Nasser, who works with ICE and the

Department of Homeland Security; and Carmen Cacho ("Ms. Cacho"), a

chemist employed by CBP. They testified about the type, purity,

quantity, and weight of the narcotics recovered during the

interception of the yola.

-6-
 In addition, the government presented the testimony of

Drug Enforcement Administration agent Christopher Conchin ("Agent

Conchin"), who had experience in narcotic cases and international

maritime interdictions. The district court qualified Agent Conchin

as an expert witness and allowed him to testify as to the value,

packaging, and mode of transportation of narcotics. Agent Conchin

testified regarding how narcotics' street price depends on the

place of sale. He also testified that drugs are usually wrapped in

plastic and packaged in same-size bricks. As to the mode of

transportation, Agent Conchin testified that drugs are typically

transported in go-fast boats or yolas, which are usually painted

blue to blend in with the water, have more than one motor (usually

two or three), are either open or have a compartment to "put stuff

underneath," and carry numerous gasoline drums that are switched

off during the voyage. In addition, he testified that vessels

transporting narcotics generally have four to six people on board

and that each has a specific duty. He further testified that, in

his experience, "in the cases that [he has] worked, . . .

individuals not connected with the trafficking of narcotics" have

not been involved in the transportation.

After a four-day jury trial, Appellants were found guilty

on all charges. Appellants moved for a judgment of acquittal

-7-
pursuant to Fed. R. Crim. P. 29, which the district court denied.4

The district court sentenced Peña-Santo to 120 months in prison,

Vicente-Arias to 130 months, Gil-Martínez to 192 months, and

Liriano to 240 months. In addition, they were each sentenced to

five years of supervised release. These timely appeals followed.

II. Discussion of Appellants' Claims

A. Expert Testimony

1. Background

The government intended Agent Conchin to testify as to

"the quantity of the narcotics, the value of the narcotics, and

. . . to the fact that [Appellants] weren't just by happenstance"

in the vessel. Appellants questioned the need for his testimony,

arguing that the question before the jury of whether they were part

of a conspiracy to distribute drugs did not require complex

insight. The district court allowed the witness to testify only

with respect to the value, packaging, and mode of transportation of

drugs.

At trial, Agent Conchin testified that, in his

experience, random people unconnected to drug trafficking would not

be on board vessels with drugs. According to him,

[t]he people that are on those boats are there
for one purpose, and that's to get the drugs
to where they're going, and they're there for
protection. They're there to switch out the

4
They also requested a new trial pursuant to Fed. R. Crim. P. 33,
which was also denied.

-8-
 hoses like I mentioned, because you can't do
it with just [one] person. You have the
captain who is the navigator to get you to
where it's going, the exact point. You have a
mechanic in case it breaks down and you have
problems on the water. Everybody has a duty,
a specific duty.

Appellants claim that the district court abused its

discretion in allowing Agent Conchin to testify about the different

roles of individuals on board vessels transporting drugs. They

argue that this testimony should have been stricken from the record

because it exceeded the scope of the topics allowed by the district

court. In addition, they claim that Agent Conchin improperly

identified the roles of the Appellants in the charged conspiracy

without having personal knowledge of it and that he addressed the

ultimate issue for the jury -- whether Appellants were members of

the conspiracy and possessed the intent to import and distribute

narcotics -- which is prohibited by Rule 704(b) of the Federal

Rules of Evidence and constitutes reversible error pursuant to this

court's holdings in United States v. Meises, 645 F.3d 5 (1st Cir.

2011); United States v. Flores-De-Jesús, 569 F.3d 8 (1st Cir.

2009); and United States v. Casas, 356 F.3d 104 (1st Cir. 2004).

We disagree.

2. Applicable Law and Analysis

It is well established that the district court "enjoys

leeway in deciding to admit or exclude expert testimony." United

States v. Ladd, 885 F.2d 954, 959 (1st Cir. 1989). Rulings on

-9-
preserved evidentiary objections are reviewed for abuse of

discretion. Casas, 356 F.3d at 113. Review of unobjected-to

evidentiary rulings is for plain error. Id. Under this exacting

standard, an appellant must show that (1) there was an error,

(2) which was clear or obvious, (3) that affected his substantial

rights, and (4) also seriously impaired the fairness, integrity, or

public reputation of judicial proceedings. United States v. De

Jesús-Viera, 655 F.3d 52, 57 (1st Cir. 2011). Because Appellants

did not meaningfully object to the testimony they now challenge,

our review is for plain error.

Appellants' first argument -- that Agent Conchin's

testimony was inadmissable because it exceeded the scope of the

topics allowed by the district court -- falls flat at the outset.

The district court allowed Agent Conchin to testify about the "mode

of transportation" of drugs. Appellants cannot show that

interpreting "mode of transportation" to include not only the

physical description of vessels used to transport drugs, but also

the process itself of transporting drugs in such vessels and the

roles people perform while transporting the drugs amounts to error,

much less clear or obvious error. Thus, Appellants' claim cannot

survive plain-error review.

Appellants' second argument suffers the same fate. "For

expert testimony to be admissible under Fed. R. Evid. 702, it must

'be relevant to the task at hand' and helpful to the jury in its

-10-
deliberations." United States v. García-Morales, 382 F.3d 12, 18

(1st Cir. 2004) (quoting United States v. López-López, 282 F.3d 1,

14 (1st Cir. 2002)). This court has approved the admission of

expert testimony regarding "the operation of criminal schemes and

activities" in drug trafficking cases, finding such testimony

relevant and "helpful to juries in understanding some obscure or

complex aspect of the crime." Id. at 18-19 (quoting United States

v. Montas, 41 F.3d 775, 783 (1st Cir. 1994) (noting that "expert

testimony regarding the description of a typical drug network [is]

relevant to provide context to the jury in evaluating the offenses

charged" (alteration in original) (internal quotation marks and

citation omitted) (quoting United States v. Clarke, 24 F.3d 257,

269 (D.C. Cir. 1994)); see also, e.g., Flores-de-Jesús, 569 F.3d at

26 (holding that the expert witness "properly described the

operation of drug points generally, including the various 'roles'

typically involved in an intricate drug conspiracy and the practice

of storing drugs intended for sale"); Ladd, 885 F.2d at 960

(holding that because "jurors are not expected to be familiar with

the idiom and workings of the heroin community . . . [e]xpert

interpretation of drug jargon and practices, supplied by one versed

in the business, has often been admitted to assist the trier of

fact in drug-trafficking cases").

The leeway enjoyed by the district court in determining

the scope of expert witness testimony is limited by Rule 704(b) of

-11-
the Federal Rules of Evidence, which prohibits an expert witness

from testifying that a "defendant did or did not have the mental

state or condition that constitutes an element of the crime

charged." Fed. R. Evid. 704(b). "This bar does not, however,

apply to 'predicate facts from which a jury might infer such

intent.'" United States v. Schneiderhan, 404 F.3d 73, 81 (1st Cir.

2005) (quoting United States v. Valle, 72 F.3d 210, 216 (1st Cir.

1995)).

Here, Agent Conchin provided proper expert testimony.

Appellants do not contest that the challenged testimony was

relevant. In addition, because the nature of narcotics trafficking

by vessels is likely outside the knowledge of the average layman,

we find that Agent Conchin's testimony was likely to assist the

jury in understanding the evidence or determining a fact at issue.

See Fed. R. Evid. 702; Ladd, 885 F.2d at 960.

Furthermore, contrary to Appellants' contentions, Agent

Conchin's testimony was not disallowed by Meises, Flores-de-Jesús,

or Casas. In those cases we "particularly condemned testimony from

. . . agent[s], not based on personal knowledge, describing the

roles played in the drug conspiracy by individual defendants"

because "[s]uch descriptions amount to impermissible testimony from

the agent[s] 'that each of the defendants was guilty of the

conspiracy charged.'" Meises, 645 F.3d at 13 (quoting Casas, 356

F.3d at 119); see also Flores-de-Jesús, 569 F.3d at 24 (holding

-12-
that the court erred in allowing the expert witness to identify the

appellants by name and role in the conspiracy, where this testimony

was not based on his personal knowledge); Casas, 356 F.3d at 118,

120 (stating that the agent's testimony, which identified the roles

of each defendant in the drug conspiracy despite lacking personal

knowledge of it, was not an appropriate subject for expert

testimony). Unlike in the cases cited by Appellants, Agent Conchin

did not identify Appellants' roles in the charged conspiracy, nor

did he even refer to Appellants in particular or to their yola.

Rather, based on his experience in narcotics cases and

international maritime interdictions, he referred to "the people

that are on those boats" as he testified about the general roles

involved in the transportation of drugs by vessels. Thus, he did

not need to have personal knowledge of Appellants' specific roles

in the charged conspiracy; his testimony was in line with our

precedent. See Flores-de-Jesús, 569 F.3d at 26 (allowing an expert

witness to describe "the operation of drug points generally,

including the various 'roles' typically involved in an intricate

drug conspiracy"); García-Morales, 382 F.3d at 18-19; Ladd, 885

F.2d at 960.

In addition, Agent Conchin's testimony did not encroach

upon the jury's factfinding function regarding the ultimate issue

of guilt. He merely provided facts from which the jury could infer

culpable intent. See Schneiderhan, 404 F.3d at 81; United States

-13-
v. DiMarzo, 80 F.3d 656, 659-60 (1st Cir. 1996) (holding under

similar circumstances that the agent's testimony that "in his

experience, innocent observers are not invited to accompany

criminals engaged in completing a drug deal" did not "encroach upon

the jury's factfinding function regarding the ultimate issue of

guilt"); see also United States v. Valencia-Amezcua, 278 F.3d 901,

909 (9th Cir. 2002) (allowing expert witness to testify about the

"aversion of large-scale methamphetamine producers to allow

unaffiliated individuals near clandestine operations"). Moreover,

the district court clearly instructed the jury that "mere presence"

on the yola was insufficient to establish guilt and that it was for

the jury to decide whether the government had met its burden of

proving the necessary mens rea. See DiMarzo, 80 F.3d at 660.

Therefore, there was no error, plain or otherwise, in allowing

Agent Conchin's testimony.

We note, however, one improper statement made by Agent

Conchin during cross-examination. Because Agent Conchin's

descriptions about drug trafficking referred to millions of dollars

of profit, Liriano's defense counsel asked Agent Conchin in cross-

examination whether he knew if Liriano had any possessions, such as

a house or jewelry. Agent Conchin began to respond, "To answer

your question, obviously people that transport drugs such as your

client," but did not finish his response because he was immediately

interrupted by defense counsel, who -- although he did not object

-14-
to Agent Conchin's statement -- said, "That's not my question." On

appeal, Peña-Santo -- but not Liriano -- claims that this response

constituted improper testimony on his guilt. Because Peña-Santo

neither objected to nor moved to strike to the statement, we review

only for plain error. De Jesús-Viera, 655 F.3d at 57. Peña-

Santos's claim fails under that stringent standard because he is

unable to satisfy plain-error review's third and fourth prongs;

that is, that it affected his substantial rights and that it

seriously affected the fairness, integrity, or public reputation of

the judicial proceedings. Id. Such an effect cannot be attributed

to a "single, isolated [and fleeting] statement" like this one,

which was made in response to a question by defense counsel

regarding a matter outside the scope of Agent Conchin's testimony.

See United States v. Trinidad-Acosta, 773 F.3d 298, 307 (1st Cir.

2014).

B. Sufficiency of the Evidence

Appellants claim reversible error by the district court

in the denial of their respective motions for judgments of

acquittal. See Fed. R. Crim. P. 29. They argue that the

government demonstrated only that they were "merely present" on the

vessel and that there was no evidence that they agreed to import or

possess with intent to distribute the drugs. They also claim that

the evidence presented at trial was consistent with their defense,

-15-
namely, that they were attempting to enter the United States

illegally. We disagree.

1. Standard / Scope of Review

We review de novo the district court's denial of a Rule

29 motion for judgment of acquittal. Trinidad-Acosta, 773 F.3d at

310. In so doing, we view the evidence in the light most favorable

to the jury's verdict, giving "equal weight to direct and

circumstantial evidence." United States v. Appolon, 715 F.3d 362,

367 (1st Cir. 2013). We evaluate the sum of all the evidence and

inferences drawn therefrom, and determine whether that sum is

enough for any reasonable jury to find all the elements of the

crime proven beyond a reasonable doubt. United States v. Shaw, 670

F.3d 360, 362 (1st Cir. 2012) ("Individual pieces of evidence

viewed in isolation may be insufficient in themselves to prove a

point, but in cumulation may indeed meet the mark."). Also, "[w]e

do not assess the credibility of a witness, as that is a role

reserved for the jury. Nor need we be convinced that the

government succeeded in eliminating every possible theory

consistent with the defendant's innocence." Trinidad–Acosta, 773

F.3d at 310–11 (quoting United States v. Troy, 583 F.3d 20, 24 (1st

Cir. 2009)). We will uphold the verdict unless the evidence is so

scant that a rational factfinder could not conclude that the

government proved all the essential elements of the charged crime

beyond a reasonable doubt. United States v. Azubike, 564 F.3d 59,

-16-
64 (1st Cir. 2009). Accordingly, "defendants challenging

convictions for insufficiency of evidence face an uphill battle on

appeal." United States v. Lipscomb, 539 F.3d 32, 40 (1st Cir.

2008) (alterations omitted) (quoting United States v. O'Shea, 426

F.3d 475, 479 (1st Cir. 2005).

To sustain a drug-conspiracy conviction, the government

must prove beyond a reasonable doubt that the defendant "knew about

and voluntarily participated in the conspiracy, 'intending to

commit the underlying substantive offense.'" United States v.

Acosta–Colón, 741 F.3d 179, 190 (1st Cir. 2013) (quoting United

States v. Ortiz de Jesús, 230 F.3d 1, 5 (1st Cir. 2000)). "An

agreement to join a conspiracy may be express or tacit, and may be

proved by direct or circumstantial evidence." Trinidad–Acosta, 773

F.3d at 311 (quoting United States v. Liriano, 761 F.3d 131, 135

(1st Cir. 2014)).

Appellants are right that their "'mere presence' at the

scene of criminal activity is not enough" to convict them. See

United States v. Guerrero, 114 F.3d 332, 342 (1st Cir. 1997).

However, they grossly underestimate the strong circumstantial

evidence supporting the jury's conclusion of guilt.

The evidence presented at trial, viewed in the light most

favorable to the jury's verdict, showed that Appellants, along with

two co-defendants, traveled from the Dominican Republic to the

coast of Dorado, Puerto Rico, on a twenty-to-twenty-five-foot

-17-
wooden yola, which was painted blue both on the inside and outside

to blend in with the water, had no navigation lights, and was

riding "very low" in the water. Its lack of lights, low profile,

color, and material made it very hard to be seen or be picked up on

radar. It also had excessive horsepower and fuel for its size, and

did not have any fishing or recreational gear on board. Instead,

it carried six "block shape[d]" gym bags wrapped in duck tape,

containing more than $3 million worth of heroin and cocaine. These

bags were in plain view of everyone on board the yola.

Once the individuals on board the yola detected that they

had been spotted by law enforcement, they started moving

"erratically" on the boat, and "multiple crew members" started

throwing the six bags, as well as small backpacks and objects that

looked like cell phones and GPS units, into the water. The six

bags were so large and heavy that more than one individual was

needed to lift and throw each one overboard. Two different

witnesses identified all four Appellants in open court as four of

the six individuals on board the intercepted yola. There was also

testimony that, when initially intercepted by law enforcement,

Appellants first hesitated to comply with the officers' orders to

stay put and raise their hands.

Furthermore, the jury also heard testimony from expert

witness Agent Conchin about the way drugs are usually packaged (in

"same size bricks"), the type of vessels used to transport drugs,

-18-
and the roles of people involved in the maritime transportation of

narcotics.

This evidence, which included lay and expert witness

testimony, a video,5 and multiple photos,6 coupled with the

inferences that may be drawn therefrom, was enough for a reasonable

jury to conclude beyond a reasonable doubt that Appellants were

guilty of the conspiracy charges against them. Our conclusion is

consistent with our precedent. For example, in United States v.

Cuevas-Esquivel, 905 F.2d 510 (1st Cir. 1990), the defendants, who

were apprehended on a thirty-to-forty-foot boat surrounded by

floating bales of marihuana, raised arguments similar to those

pressed by Appellants here. In rejecting their argument of "mere

presence," this court held that

[r]ationality support[ed] the jury's finding.
The jury could without undue strain conclude
that it was simply incredible that with only
four persons on board a relatively small
vessel, on its way to "nowhere," with an open
cargo hold, surrounded by a sea of floating
marihuana bales which some of the crew had
been seen dumping, that all four were not
participants in this criminal venture. It is
entirely reasonable for the jury to conclude
that conspirators, engaged in conduct which by
its nature is kept secret from outsiders,

5
On the video, the jury could see individuals on board the yola
tossing bags overboard and law enforcement recovering them from the
water, as well as the individuals' erratic movements when they were
first detected by law enforcement and their hesitance to comply
with the order to raise their hands.
6
There were photos of the yola and the bags and drugs recovered
from the water.

-19-
 would not allow the presence of innocent
bystanders. Neither juries nor judges are
required to divorce themselves of common
sense, where, as here, the appellant's
portrayal of himself as an innocent bystander
is inherently unbelievable.

Id. at 515 (internal quotation marks and citation omitted) (quoting

United States v. Smith, 680 F.2d 255, 260 (1st Cir. 1982)); see

also United States v. Rosa-Cariño, 615 F.3d 75, 81 (1st Cir. 2010)

(noting that "[d]rug smugglers handling . . . valuable drugs are

unlikely to involve unknowledgeable outsiders"); Guerrero, 114 F.3d

at 342 (noting that "where the circumstantial evidence permits a

jury to conclude that activities aboard a vessel concern the

obvious presence of contraband, the jury reasonably may infer the

crew's knowing participation in the venture"); United States v.

Piedrahita-Santiago, 931 F.2d 127, 130 (1st Cir. 1991) (holding

where seven crewmembers were on board a "small" forty-foot vessel

that "[a] larger crew than ordinarily needed for navigation

purposes suggests that the crew was hired for the purpose of

loading and unloading cargo rather than merely steering the

vessel"); United States v. Luciano-Pacheco, 794 F.2d 7, 11 (1st

Cir. 1986) (stating that "given the necessarily close relation of

crewmembers cramped onto a vessel . . . with marijuana, it is

entirely reasonable for the jury to conclude that conspirators

. . . would reasonably not allow the presence of innocent

bystanders in their midst while conducting a lengthy, illegal

operation") (internal quotation marks and citation omitted)

-20-
(quoting United States v. Beltrán, 761 F.2d 1, 6 (1st Cir. 1985);

Smith, 680 F.2d at 259-60 (1st Cir. 1982) (crewmember's presence on

a vessel carrying large quantities of marihuana together with

reasonable inferences, supported the conviction notwithstanding

defendant's contention that he was a mere passenger).

Although Appellants argue that the evidence was also

consistent with their defense that they were on the vessel taking

a ride to Puerto Rico with the sole intention of illegally entering

the United States, it was up to the jury to believe or disbelieve

their defense. The jury did not believe it and we cannot second-

guess that determination. See Trinidad-Acosta, 773 F.3d at 310-11.

"Nor need we be convinced that the government succeeded in

eliminating every possible theory consistent with the defendant's

innocence."7 Id. at 311 (quoting Troy, 583 F.3d at 24). Thus, the

district court properly denied Appellants' motions for judgment of

acquittal.

C. Government's Statements

According to Appellants, the prosecutor made some

improper remarks during trial that deprived them of a fair trial.

7
Although we have held that where the evidence is equally or
nearly equally consistent with innocence as it is with guilt, "a
reasonable jury must necessarily entertain a reasonable doubt,"
O'Laughlin v. O'Brien, 568 F.3d 287, 301 (1st Cir. 2009) (quoting
United States v. Flores-Rivera, 56 F.3d 319, 323 (1st Cir. 1995)),
that is not the case here, where the evidence establishing guilt
was very strong.

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Some of these remarks were objected to by some appellants at trial,

while others were not. We discuss each in turn.

This court reviews de novo whether objected-to remarks by

the prosecution were improper and/or constituted misconduct. See

United States v. Sepúlveda-Hernández, 752 F.3d 22, 31 (1st Cir.

2014); United States v. Appolon, 695 F.3d 44, 66 (1st Cir. 2012).

If we conclude that statements were improper or constituted

misconduct, we must then determine whether such statements resulted

in prejudice to the Appellants. United States v. Rodríguez, 675

F.3d 48, 62 (1st Cir. 2012); United States v. Azubike, 504 F.3d 30,

38-39 (1st Cir. 2007); United States v. Joyner, 191 F.3d 47, 53

(1st Cir. 1999) ("[W]e review for harmless error, that is, whether

the argument was 'sufficiently prejudicial to warrant a new trial

under the circumstances'" (quoting United States v. Rosales, 19

F.3d 763, 767 (1st Cir. 1994))). In determining whether the

prosecutor's remarks were harmless, "we evaluate the . . . comments

as a whole, not in isolation," Joyner, 191 F.3d at 53 (quoting

Rosales, 19 F.3d at 767), and "we focus on (1) the severity of the

misconduct, including whether it was isolated and/or deliberate;

(2) whether curative instructions were given; and (3) the strength

of the evidence against the [Appellants]." United States v.

González-Pérez, 778 F.3d 3, 19 (1st Cir. 2015) (citing Rodríguez,

675 F.3d at 62). The prosecutor's improper statements "are

considered harmful if they 'so poisoned the well that the trial's

-22-
outcome was likely affected, thus warranting a new trial.'" Id.

(quoting Rodríguez, 675 F.3d at 62).

Any unpreserved claims of prosecutorial misconduct are

reviewed for plain error. Id.; Rodríguez, 675 F.3d at 64

(requiring defendant to prove there was an error, which was clear

or obvious, that affected his substantial rights, and seriously

impaired the fairness, integrity, or public reputation of the

judicial proceedings).

1. Opening Statement

During her opening statement, the prosecutor stated:

You'll hear the Judge inform you that
jurisdictional aspects is not an issue for you
to determine. It's already been determined by
this Court that the United States had
jurisdiction over this vessel and that these
individuals were on board this vessel which we
had jurisdiction over with the intent and
knowledge to possess and distribute the
narcotics.
Now, in this case there are no --

Peña-Santo's defense counsel immediately objected to the statement

saying, "I object to that, Your Honor. That's not what the Court

determined. That they knew that there were drugs on board is

something for the jury. That's an issue of fact for the jury to

decide." Gil-Martínez's counsel joined his objection and added

that the district court's "ruling was regarding the jurisdiction,

not that there were drugs inside the vessel." Faced with these

objections, the prosecutor responded, "I don't believe I stated

-23-
that. You will have to determine whether those drugs were on

board, and you'll see the video of them throwing them overboard."

Because only Peña-Santo and Gil-Martínez preserved this

argument, our review of their claim is for harmlessness. While our

review of Vicente-Arias and Liriano's claim would ordinarily be for

plain error, because Appellants' claim fails under both standards

of review, we limit our discussion to the more defendant-friendly

standard.

The prosecutor's statement gave the impression that the

court had already determined that Appellants had the "intent and

knowledge to possess and distribute the narcotics," which was not

correct and, thus, was improper. However, we still need to

determine whether the statement was prejudicial.

A review of the record does not reveal that the

prosecutor intended to mislead the jury. Rather, it suggests that

she simply misspoke when trying to list a series of issues the

government wanted to address as an introduction to the government's

case. Furthermore, the prosecutor's improper statement was

isolated and not deliberate. See González-Pérez, 778 F.3d at 19.

Defense counsel for Gil-Martínez and Peña-Santo immediately

objected to the statement and, although the district court made no

comment or ruling after the objection, the prosecutor immediately

retracted the statement by saying: "I don't believe I stated that.

-24-
You will have to determine whether those drugs were on board, and

you'll see the video of them throwing them overboard."8

Also, while the district court did not give a curative

instruction at the time, we note that one was not requested.

Moreover, the district court repeatedly instructed the jury that

attorneys' arguments were not evidence. During the preliminary

instructions, the court stated, "[r]emember these are arguments.

It's what the Government intends to prove in the case. It's not

the actual evidence. The actual evidence will be coming in after

the witnesses start coming in and presenting exhibits." Then,

during the final jury instructions, the district court reiterated

that it was the government who had to prove intent beyond a

reasonable doubt. Specifically, it stated, "[f]or you to find a

defendant guilty of this crime, you must be convinced that the

Government has proven each of these things beyond a reasonable

doubt . . . that the defendants agreed to import cocaine and heroin

. . . [and] did so knowingly and intentionally." This militates

against finding prejudice. See United States v. Gentles, 619 F.3d

8
We note that the correction itself is problematic because it
suggested that the video showed the defendants throwing packages
overboard, whereas it was agreed that the defendants could not be
identified as doing so from the video. No contemporaneous
objection was made, so we review for plain error. As with the
government's initial statement, the inaccurate reference in the
correction does not amount to plain error, particularly given the
admission in the testimony of the government's witness Agent Perry,
that the defendants could not be identified in the video as
throwing the packages overboard.

-25-
75, 82 (1st Cir. 2010) ("finding no error where defendant failed to

request a curative instruction and court gave general instructions

before deliberation as to what the jury could and could not

consider as evidence" (citing United States v. Robinson, 473 F.3d

387, 398 (1st Cir. 2007))); see also González-Pérez, 778 F.3d at 21

("[W]e ordinarily presume that juries follow instructions.").

Finally, we find it unlikely that any prejudice surviving

the instructions could have affected the outcome of the case. The

evidence of Appellants' guilt was strong enough to prevent any

prejudice surviving the instructions from affecting the outcome of

the case. In addition, the fact that this statement was made at

the beginning of the trial also makes it less likely to have

affected the outcome of the case. See United States v. Mooney, 315

F.3d 54, 60 (1st Cir. 2002) ("The context of the prosecutor's

comments also weighs against finding that they likely affected the

outcome of the trial. The comments occurred during opening

arguments, not during summation where the last words the jury hears

have significant potential to cause prejudice."). In sum, because

we do not find that the prosecutor's statement "so poisoned the

well that the trial's outcome was likely affected," González-Pérez,

778 F.3d at 19 (quoting Rodríguez, 675 F.3d at 62) (internal

quotation marks omitted), Appellants' claim fails.

-26-
 2. Redirect Examination

On direct examination, Ms. Cacho, the chemist, testified

about the tests she performed on some of the drugs in order to

conclude that they were heroin and cocaine. During

cross-examination, Gil-Martínez's defense counsel asked Ms. Cacho

whether she knew if other tests -- such as fingerprint analysis

and DNA testing -- had been performed on the packages containing

the drugs. Defense counsel's point was that no tests linked the

Appellants to the drugs. Ms. Cacho testified that she did not do

anything other than analyze the chemical composition of the

substances. On redirect examination, the prosecutor asked Ms.

Cacho, "Did you watch the video of the defendants throwing the

drugs into the water?" Gil-Martínez's defense counsel objected and

stated that "[t]hat was not part of the cross-examination." The

district court allowed the question, to which Ms. Cacho responded,

"No."

Although they did not object at trial to the prosecutor's

question to Ms. Cacho on redirect examination, Peña-Santo and

Vicente-Arias now argue that it was a "loaded" and "speaking

question" that aimed to confuse the jury by making them believe

that there was direct evidence linking them to the crimes charged.

They allege that, because there was no direct evidence or witness

identifying them as throwing anything into the water and no one

-27-
could tell from the video whether they were the ones throwing the

drugs overboard, they are entitled to a new trial.

Since Peña-Santo and Vicente-Arias failed to object to

the question at the trial level, our review is only for plain

error.9 Their claim falls short because, at the very least, they

failed to establish plain-error review's third and fourth prongs.

Specifically, Peña-Santo and Vicente-Arias have not shown that

their substantial rights were affected and that the fairness,

integrity, or public reputation of their judicial proceedings were

seriously impaired, especially because Ms. Cacho responded to the

question in the negative. Although they argue that the question

wrongly gave the impression that direct evidence (the video) showed

them throwing the drugs overboard, the fact that Ms. Cacho

responded that she had not seen the video -- coupled with the fact

that the jury examined the evidence (including the video) from

which the government could lawfully suggest that the jury draw an

inference that Appellants were the ones throwing the drugs

overboard10 -- sufficiently attenuated any effect that the question

9
We note that only Gil-Martínez objected to the prosecutor's
question at the trial level, but he did so on different grounds --
that the question went beyond the scope of the cross-examination --
and neither Peña-Santo nor Vicente-Arias joined his objection.
10
The government may suggest to the jury which inferences should
be drawn from the evidence as long as the government does not know
that the suggested inferences are false or has very strong reasons
to doubt those inferences. See United States v. Kasenge, 660 F.3d
537, 542 (1st Cir. 2011) (stating that "[a]lthough it is the jury's
job to draw the inferences, there is nothing improper in the

-28-
alone could have had. This is just not the kind of "blockbuster

error" for which "plain error review tends to afford relief."

Rodríguez, 675 F.3d at 64.

3. Closing Argument

Peña-Soto and Vicente-Arias also challenge the following

statement made by the government during its closing argument:

"That's not someone's personal drug stash right there. $3.2

million is not something that the four of them are going to use

casually at parties. Those are drugs that the four of them are

going to sell at a profit, $3.2 million." Although they did not

object to the statement at the trial level, Peña-Santo and Vicente-

Arias assert that it satisfies the plain error standard of review

since there was no evidence, either circumstantial or direct, that

they intended to sell drugs for profit or that they stood to gain

millions of dollars in profit. Relying on Arrieta-Agressot v.

United States, 3 F.3d 525, 527 (1st Cir. 1993), they claim that the

challenged statement was inflammatory by referring to money and

wealth, and that the evidence showed, at most, that they acted as

couriers (mules) or may have assisted on the boat. We disagree.

Although there was no direct evidence that Appellants

intended to sell the drugs for profit, there is no error -- plain

Government's suggesting which inferences should be drawn," but
noting that it is error for the government to propound inferences
that it knows to be false, or has a very strong reason to doubt)
(citations omitted).

-29-
or otherwise -- in referencing the amount or worth of the drugs and

inviting the jury to draw the inference that the drugs were not for

personal use. See United States v. Bergodere, 40 F.3d 512, 518

(1st Cir. 1994) (noting that "we have long recognized that factors

such as the quantity and purity of the drugs confiscated by the

authorities can support an inference of intent to distribute"); see

also United States v. Meadows, 571 F.3d 131, 144-45 (1st Cir. 2009)

(At closing argument, the prosecution may "ask jurors to draw

reasonable inferences from the evidence."). And, even if the

Appellants would not be the ones actually to sell the drugs and

were instead couriers or mules, they were still part of the same

conspiracy to import and distribute (and eventually sell for

profit) controlled substances, which were the charged offenses.

Furthermore, Peña-Santo's and Vicente's reliance on

Arrieta-Agressot is misplaced. The improper comments in

Arrieta-Agressot had to do with the "evil" effect that the

defendants' actions had on society. There, we established that a

prosecutor's statement is improper if it serves no purpose besides

inflaming the passions and prejudices of the jury. 3 F.3d at 527.

Here, however, the prosecutor's reference to the worth of the drugs

had the legitimate purpose of both refuting the Appellants' mere

presence defense and suggesting that the jury draw an inference as

to the required element of intent. See Bergodere, 40 F.3d at 518.

Thus, their plain error claim fails.

-30-
D. Peña-Santo's Cumulative Error Claim

Peña-Santo argues that if none of his previous claims of

error is sufficient to vacate his conviction, their cumulative

prejudicial effect requires that his conviction be vacated and his

case remanded for a new trial.

We have acknowledged that "[i]ndividual errors,

insufficient in themselves to necessitate a new trial, may in the

aggregate have a more debilitating effect." United States v.

Sepúlveda, 15 F.3d 1161, 1195-96 (1st Cir. 1993). "[C]laims under

the cumulative error doctrine are sui generis." Id. at 1196. When

reviewing such a claim a Court must consider:

each such claim against the background of the
case as a whole, paying particular weight to
factors such as the nature and number of []
errors committed; their interrelationship, if
any, and combined effect; how the district
court dealt with the errors as they arose
(including the efficacy -- or lack of efficacy
-- of any remedial efforts); and the strength
of the government's case.

Id. In addition, the length of the trial is another factor to be

considered. Id.

Here, none of Peña-Santo's alleged errors -- which are

not many, considering the length of the trial -- resulted in

substantial prejudice and most of them are entirely without merit.

Furthermore, as previously explained, the evidence against Peña-

Santo was very strong, and the district court did not conduct the

trial in a manner that undermined his right to a fair trial. Thus,

-31-
we reject his contention that his conviction was tainted by

cumulative error. See United States v. Flemmi, 402 F.3d 79, 95

n.23 (1st Cir. 2005) ("[B]ecause we have found that none of [the

defendant's] individual complaints resulted in substantial

prejudice and that most are completely without merit, we reject the

final contention that his conviction was tainted by cumulative

error." (quoting United States v. DeMasi, 40 F.3d 1306, 1322 (1st

Cir. 1994))). "The Constitution entitles a criminal defendant to

a fair trial, not to a mistake-free trial." Sepúlveda, 15 F.3d at

1196 (citing Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986));

United States v. Polito, 856 F.2d 414, 418 (1st Cir. 1988)).

E. Gil-Martínez's Sentencing Disparity Claim

Gil-Martínez claims that he received a disparately higher

sentence than co-defendant Vicente-Arias, even though there was no

evidence of dissimilar conduct among them and they both had the

same Criminal History Category ("CHC").

1. Background

The Presentence Investigation Report ("PSR") recommended

a Guidelines sentencing range ("GSR") for Gil-Martínez of 235 to

297 months of imprisonment.11 The PSR did not identify any

11
Pursuant to U.S. Sentencing Guidelines Manual § 3D1.2(d) (2004)
("U.S.S.G."), Counts One and Two were grouped together. These
offenses resulted in a base offense level of thirty-eight, pursuant
to U.S.S.G. § 2D1.1. Gil-Martínez had no previous criminal history
and had a CHC of I. This yielded a GSR of 235 to 297 months of
imprisonment.

-32-
information that would warrant a role adjustment or a departure.

At the sentencing hearing, the district court considered the PSR's

recommended GSR and took into account Gil-Martínez's "unfortunate

rearing and upbringing." It considered that at times Gil-Martínez

was unable to eat because his family could not afford food, he

lived in a wooden house with a dirt floor, and he only had a fourth

grade education because he left school at a young age to help

support his family. Gil-Martínez argued that a within-the-

Guidelines sentence would be unreasonable when compared to Vicente-

Arias's sentence of 130 months of imprisonment. He then requested

to be sentenced to 120 months of imprisonment, the statutory

minimum. He argued that sentencing him to a greater term of

imprisonment would create a sentencing disparity.

The district court considered Gil-Martínez's request for

a sentence similar to that of Vicente-Arias, who received a minor

role reduction. The government opposed Gil-Martínez's request for

a downwardly variant sentence of 120 months, arguing that, while

Vicente-Arias had received a minor role reduction, Gil-Martínez had

a number of roles onboard the yola, which distinguished him from

Vicente-Arias. The government pointed out that Gil-Martínez had

admitted to operating and fueling the yola. The district court

concluded that it did not have any information that would support

granting Gil-Martínez a minor role reduction like that Vicente-

Arias received or otherwise sentencing him to a term of

-33-
imprisonment the same as or similar to that of Vicente-Arias. The

court also considered the sentences imposed on other co-defendants.

It noted that, although Peña-Santo received the statutory minimum

sentence of 120 months of imprisonment, Peña-Santo's

characteristics were different from those of Gil-Martínez because

Peña-Santo was facing serious health conditions and his life

expectancy was less than six months. The district court noted that

although Gil-Martínez compared himself only to Vicente-Arias and

Peña-Santo, the district court had also sentenced another

co-defendant who had pleaded guilty pursuant to a straight plea to

188 months of imprisonment. The district court then stated that,

in sentencing each defendant, it had taken into consideration "the

particular situation of each and every one defendant" and had

"individualized sentencing." After concluding that the court did

not have any information to support a minor role reduction, and

that Gil-Martínez was in good health, the district court imposed on

Gil-Martínez a downwardly variant sentence of 192 months of

imprisonment.

2. Standard / Scope of Review

We review challenges to the reasonableness of a sentence

"under a deferential abuse-of-discretion standard." Gall v. United

States, 552 U.S. 38, 41 (2007). We first consider "whether the

district court made any procedural errors, such as 'failing to

calculate (or improperly calculating) the Guidelines range,

-34-
treating the Guidelines as mandatory, failing to consider the

section 3553(a) factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the chosen

sentence -- including an explanation for any deviation from the

Guidelines range.'" United States v. Maisonet-González, 785 F.3d

757, 762 (1st Cir. 2015) (quoting United States v. Rivera-Moreno,

613 F.3d 1, 8 (1st Cir. 2010)). If the district court has

committed no procedural error, we then review the substantive

reasonableness of the sentence imposed for abuse of discretion.

United States v. Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013).

"When conducting this review, we take into account the totality of

the circumstances, including the extent of any variance from the

Guidelines." Maisonet-González, 785 F.3d at 762 (quoting Trinidad-

Acosta, 773 F.3d at 309). "A sentence will withstand a substantive

reasonableness challenge so long as there is 'a plausible

sentencing rationale and a defensible result.'" Id. (quoting

United States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008)).

In fashioning a sentence, judges must consider "the need

to avoid unwarranted sentencing disparities among defendants with

similar records who have been found guilty of similar conduct." 18

U.S.C. § 3553(a)(6). Although this provision is primarily aimed at

national disparities, rather than those between co-defendants,

Martin, 520 F.3d at 94, we have also held that if "'identically

situated defendants' receive significantly disparate sentences, red

-35-
flags may indeed be raised." United States v. Rivera-López, 736

F.3d 633, 636 (1st Cir. 2013) (quoting United States v. Mueffelman,

470 F.3d 33, 41 (1st Cir. 2006)).

3. Analysis

We afford the district court wide discretion in

sentencing because, after the court has calculated the GSR,

"sentencing becomes a judgment call, and a variant sentence may be

constructed based on a complex of factors whose interplay and

precise weight cannot even be precisely described." United States

v. Politano, 522 F.3d 69, 73 (1st Cir. 2008) (quoting Martin, 520

F.3d at 92). Gil-Martínez does not allege that the district court

failed to consider the 18 U.S.C. § 3553(a) sentencing factors --

including the need to avoid sentencing disparities -- or commit any

other procedural error. Rather, his challenge goes to the weighing

of the section 3553(a) sentencing factors, specifically the factors

establishing the need to avoid sentencing disparities and the

history and characteristics of the defendant. As Gil-Martínez was

sentenced below the applicable GSR, his challenge to the

substantive reasonableness of his sentence faces an uphill battle.

See United States v. Joubert, 778 F.3d 247, 256 (1st Cir. 2015)

("When, as in this case, a district court essays a substantial

downward variance from a properly calculated guideline sentencing

range, a defendant's claim of substantive unreasonableness will

-36-
generally fail." (quoting United States v. Floyd, 740 F.3d 22,

39-40 (1st Cir. 2014))).

As the Government correctly contends, a district court's

consideration of sentencing disparity aims primarily at the

minimization of disparities among defendants nationally and, while

avoidance of disparities among co-defendants may be considered, "a

defendant is not entitled to a lighter sentence merely because his

co-defendants received lighter sentences." United States v.

Wallace, 573 F.3d 82, 97 (1st Cir. 2009) (quoting United States v.

Marceau, 554 F.3d 24, 33 (1st Cir. 2009)). Furthermore, contrary

to Gil-Martínez's claim, he is not entitled to the same sentence as

Vicente-Arias because they are not "identically situated," inasmuch

as Vicente-Arias received a minor role reduction12 and Gil-Martínez

did not. See Rivera-López, 736 F.3d at 636; United States v.

Rivera-González, 626 F.3d 639, 648 (1st Cir. 2010). At the

sentencing hearing the district court stated that it would not

grant Gil-Martínez a minor role reduction because it did not have

any information supporting a minor role reduction, and, as the

government argued, the information was to the contrary, with

Gil-Martínez having admitted to operating and fueling the yola.

The district court concluded that this information distinguished

Gil-Martínez's role in the conspiracy from that of Vicente-Arias.

Gil-Martínez has failed to show that these findings of fact

12
This resulted in Vicente-Arias having a lower GSR.

-37-
regarding his role in the conspiracy were clearly erroneous. See

United States v. Torres-Landrúa, 783 F.3d 58, 66 n.10 (1st Cir.

2015). In addition, although Gil-Martínez selectively compares

himself only to Vicente-Arias, the record shows that the district

court did take into consideration the need to avoid sentencing

disparities not only in relation to Vicente-Arias, but also in

relation to his other co-defendants. It is clear from the record

that the district court also took into consideration that another

co-defendant, who had pleaded guilty pursuant to a straight plea,

had received a sentence of 188 months of imprisonment, and that

Peña-Santo, who was sentenced to the statutory minimum, received

that sentence because he was sick and his life expectancy was less

than six months. Because it is evident that the district court did

consider the need to avoid sentencing disparities among defendants,

as well as the other sentencing factors, sufficiently explained its

chosen sentence, and arrived at a defensible result,

Maisonet-González, 785 F.3d at 762, Gil-Martínez's challenge to the

reasonableness of his downwardly variant sentence fails.

III. Conclusion

The record reflects that Appellants were afforded a fair

trial, that the expert testimony of Agent Conchin was proper, and

the evidence of their guilt was more than sufficient to support the

jury's verdicts. In addition, the record shows that Gil-Martínez's

-38-
sentence was appropriate. Thus, Appellants' convictions and Gil-

Martínez's sentence are affirmed.

Affirmed.

-39-