United States v. Espinal-Almeida

United States Court of Appeals
For the First Circuit

No. 10-1086

UNITED STATES,

Appellee,

v.

CARLOS ESPINAL-ALMEIDA, a/k/a Carlo,
Defendant, Appellant,

No. 10-1090

UNITED STATES,

Appellee,

v.

CÉSAR HERNÁNDEZ-DE LA ROSA,
a/k/a César Hernández-La Rosa,
a/k/a Benino Mariano-Santana,

Defendant, Appellant,

No. 10-1134

UNITED STATES,

Appellee,

v.

JACOBO PEGUERO-CARELA, a/k/a Berzano Mercedes,

Defendant, Appellant,
No. 10-1440

UNITED STATES,

Appellee,

v.

SATURNINO TATIS-NÚÑEZ,
a/k/a Sotunino Tati, a/k/a Sotunino Núñez,

Defendant, Appellant.

___________________

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

[Hon. Carmen C. Cerezo, U.S. District Judge]

Before

Lynch, Chief Judge,
Torruella and Thompson, Circuit Judges.

José R. Olmo Rodríguez for appellant Carlos Espinal-Almeida.
Mariángela Tirado-Vales on brief for appellant César
Hernández-De la Rosa.
Ignacio Fernández de Lahongrais on brief for appellant Jacobo
Peguero-Carela.
Jay Markell for appellant Saturnino Tatis-Núñez.
Carlos R. Cardona-Torres, Assistant United States Attorney,
with whom Rosa Emilia Rodríguez-Vélez, United States Attorney,
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, and Luke Cass, Assistant United States
Attorney, were on brief, for appellee.

November 14, 2012
 THOMPSON, Circuit Judge. An undercover United States

Customs Task Force operation involving efforts on land, at sea, and

in the air, ended with the arrests of the defendants, Saturnino

Tatis-Núñez ("Tatis"), César Hernández-De la Rosa ("Hernández"),

Carlos Espinal-Almeida ("Espinal"), and Jacobo Peguero-Carela

("Peguero"). Each was indicted on, and ultimately convicted of,

one count of conspiracy to possess with intent to distribute, and

one count of conspiracy to import, 418 kilograms of cocaine. They

all appeal, raising a myriad of challenges that span jury voir dire

to sentencing. After carefully considering each claimed error, we

affirm.

I. BACKGROUND

A. The Undercover Operation

Sergeant Richard Avilés ("Avilés"), a twenty-six-year

veteran of the Puerto Rico Police Department and eight-year member

of the U.S. Customs and Border Protection ("Customs") Task Force,

received information that certain individuals were looking to

recruit boat captains for the purpose of transferring drug loads

via water from the Dominican Republic to Puerto Rico. Avilés was

assigned to go undercover as a boat captain, "Tony," in order to

infiltrate the drug trade.

As part of the undercover operation an informant working

with law enforcement took Avilés to meet Orlando Carrero-Hernández

("Carrero") on January 10, 2008 to discuss the prospect of Avilés's

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working for Carrero and picking up a drug load.1 This meeting,

which took place in Puerto Rico, was photographed and recorded. At

the meeting, Avilés signed on to pick up 600 kilograms (or kilos)

of cocaine from another boat in the middle of the ocean. In a

subsequent phone call with Carrero the amount was reduced to 300

kilos.

B. The Drug Exchange

After some hits and misses, the drug exchange finally

took place on January 25, 2008. On that day, Avilés met with

Carrero and Joaquín Lassalle-Velázquez ("Lassalle").2 Carrero gave

Avilés $450 for fuel, a piece of paper with the coordinates of

where the two boats would meet at sea, and the password to signal

to the other boat crew carrying the drugs.

After the meeting, Avilés returned to his office and made

a photocopy of the coordinates and also met another officer who was

to accompany him on the undercover ("UC") boat. Together they

headed to the UC boat where they met up with two other officers who

would be posing as the crew. Avilés briefed the trio and the two

officers who were going to pilot the boat plugged the coordinates

Avilés had received from Carrero into the UC boat's global

1
Carrero was the fifth defendant before the district court.
He pled guilty on day two of trial.
2
Lassalle was the sixth defendant before the district court.
He pled guilty on the morning trial was set to start.

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positioning system ("GPS") device. The UC boat set off to sea to

meet the mothership.3

Avilés and his crew reached their destination around 8:00

p.m. Encountering turbulent waters, they circled around the area

for approximately one hour. Then Avilés "noticed a yola4 in the

sea" and heard voices. Avilés yelled out in the darkness, "hey,

man -- hey, man. You, Domi." A voice replied, "what's going on,

Bori?" Avilés shouted back, "I'm coming, coming from Chino," and

then the password, "Chino sends me." "Immediately, there was a

whole bunch of . . . noise" and the yola "slowly got closer" to

the UC boat.

The seas were rough -- so rough that the yola hit the UC

boat twice. Avilés and his crew took a moment to put "fenders" up

around the UC boat to avoid damaging it. Then he asked of the

other boat, "what's going on? What does he have? What's there?" A

voice replied, "nine bags." One of Avilés's crew members then

turned on a light and Avilés looked directly at the mothership.

While the light was on, Avilés saw one individual (later identified

as Hernández), whom he referred to as "the captain of the vessel,"

3
"Mothership" is a law enforcement term used to refer to the
target of an investigation. In this case, a boat that was
suspected of carrying contraband.
4
A yola is a small fishing boat. For purposes of this
opinion, reference to the "yola," "mothership," and "michera" will
be used interchangeably.

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maneuvering two motors at the same time, a feat Avilés found

abnormal and "impressive."

After the light was quelled, the two boats started moving

in toward one another to enable the crews to make the drug

exchange. By 9:15 p.m. the two boats were floating in tandem.

Using only their hands and a pole, the two boats managed to stay

close enough to keep the drugs from falling into the water.

According to Avilés, the crew of the mothership would put the drugs

on the edge of their boat and then Avilés would grab the package

and put it on the UC boat's floor. At one point during the

exchange, a crew member from the mothership accidentally threw one

of the kilos on top of Avilés's hand. Avilés shouted out, "shit,

Domi. You broke my hand. You broke my hand." Immediately a light

in the UC boat was turned on and Avilés was able to see the crew

member (later identified as Espinal), who stood directly in front

of him.

A heated argument then arose because the mothership crew

complained that the light had been left on too long. After the

exchange of words, the remaining sacks of drugs were transferred to

the UC boat and sometime before 9:25 p.m. the two boats parted

ways. Avilés and the UC boat headed for Aguadilla, Puerto Rico to

rendevous on a beach with Lassalle and Carrero, where hidden

Immigration and Customs Enforcement ("ICE") agents and Puerto Rico

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Police officers lay in wait. The UC boat stopped along the way to

swap out the kilos of cocaine for fake kilos.5

C. Air Patrol

Meanwhile Victor Cancel ("Cancel"), a Customs aviation

enforcement officer, was also assigned to assist in the undercover

operation. Using aircraft equipped with special sensors, Cancel

routinely patrols the coastal waters of Puerto Rico and the Virgin

Islands in order to detect and prevent illegal immigrant and drug

trafficking. On this particular mission, Cancel was part of a four

person aircraft crew and, more specifically, was the camera

operator. The aircraft crew was given instructions "to fly to the

area and locate and track the mothership," "observe the sea

transfer," and "follow the mothership until [it was] intercepted by

5
The plan was for Avilés to arrive on the beach and start
unloading the sacks of fake drugs. Once he had handed off the
first sack to Carrero and Lassalle, he was going to give a
predetermined signal at which time a light would be turned on and
the officers would move in and make the arrests. The plan never
came to fruition though because the officers ended up moving in
before Avilés got there at which time a shootout took place between
the individuals waiting for the drugs (it is unclear exactly who,
though at least Carrero and Lassalle were there) and the officers.
The sequence of events at this point is not clear and the briefs
and the evidence offered at trial do not shed much light. But
based on Carrero and Lassalle's sentencing hearing transcript it
seems that the pair fled from the beach, one or both of them in
Lassalle's pick-up truck, from which one officer claimed shots were
fired. They were each arrested separately a few days later.

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the U.S. Coast Guard."6 In other words, Cancel and the crew were

told to stay with the mothership "at all times."

The aircraft took off around 7:45 p.m. heading toward the

coordinates where the UC boat was scheduled to be at 9:00 p.m. A

boat was identified on the aircraft's radar. It was at the

coordinates Cancel had been given and at the time "was just sitting

there, was not moving, [and] was waiting," and so Cancel "knew it

was the UC boat." The aircraft crew then scanned the area for the

mothership. Through the use of radar, color lenses, and

observation out of the aircraft's windows, they detected a few

boats in the area. Cancel and the crew focused in on one small

boat because it was headed "directly towards where the UC boat

was."

The aircraft's camera was trained on the boat (which was

already being tracked by radar) and Cancel received his first image

of the vessel. The aircraft moved in closer (one mile above the

boat) to get a better look via a zoom lens camera. Using the

camera, Cancel and the crew were able to identify the vessel as a

6
The detection equipment used by the aircraft crew included
a camera that allowed for audio, video, and backup recording. It
was comprised of three different lenses: "a complete zoom-in lens,"
"an adjustable zooming in . . . lens," and "a forward-looking
infrared camera that . . . detects the contrast of the heat in the
background" and is "specifically used at nighttime." The section
of the camera that recorded video had two digital video recorders
("DVR") which held the video, and from which the videos could be
retrieved and transferred to a DVD disc. There was also a special
radar, similar to a satellite dish, "attached to the belly of the
aircraft."

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"michera," a small fishing boat that is built in the Dominican

Republic and in Cancel's experience, one commonly used by drug

smugglers to conceal their drug loads.

The aircraft then followed the michera, recording video

and taking still pictures of it as it neared the UC boat and

eventually came along side it. Cancel and the crew continued to

observe the michera, video recording as the actual drug exchange

took place. Cancel did not take still pictures of the exchange

because protocol dictates, he said, that when a UC boat is involved

the aircraft is supposed to "stay away" and "not interrupt the sea

transfer" -- this also ensures that Cancel can keep the boats on

camera and radar at the same time.

After the exchange was complete, the UC boat and michera

went their separate ways and Cancel and his crew (in accordance

with their instructions) stayed with the michera. They tracked it,

while giving information about its location to a waiting U.S. Coast

Guard cutter.7 Cancel and the crew continued to observe and take

pictures of the michera as it was intercepted by the cutter, and

boarded by Coast Guard officers. After observing the interdiction,

the aircraft flew off to support the second part of the mission --

filming the on the beach drug drop-off.

7
A cutter is a large Coast Guard boat.

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 D. Sea Patrol and the Interdiction

Jaime Cabán Morales ("Cabán") was one of the Coast Guard

officers aboard the cutter. His job was to "move in and apprehend

the suspects" after the air crew gave word the drug exchange had

been completed. Once word came, Cabán and three other officers

deployed in a small inflatable boat to the mothership and arrived

sometime around 10:40 p.m. Identifying himself as a Coast Guard

officer, Cabán ordered all onboard "to keep their hands up where

[he could] see them." Cabán and his crew boarded the mothership

and found the four defendants.

After handcuffing the four, Cabán spoke with the

defendants who claimed to be out on a fishing trip. They said they

had headed out, and obtained a fishing permit, from a marina in the

Dominican Republic. None of the defendants had identification or

registration for the boat. Cabán asked about weapons on board and

he was told there was one, a 9 mm gun, which was located and

secured. Cabán and the officers then performed a sweep of the

boat, recovering ammunition, a GPS, and four cell phones. Cabán

found only minimal fishing equipment and no fish, though he did

find a fishing permit, which had been issued from the Dominican

Republic.

Cabán then gave the cutter the all clear and it came up

alongside the michera and the inflatable Coast Guard boat. Three

of the defendants, along with the items seized from the michera,

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were transferred to the cutter. Cabán and the three boarding

officers remained on the michera with one of the defendants (it is

unclear which, though we suspect it was Hernández because Cabán

refers to the defendant who remained behind as the "master"). Both

the cutter and the michera then headed to Mayagüez, Puerto Rico,

arriving the next morning (it is uncertain if they arrived at

exactly the same time). They moored alongside each other and the

defendant who had been traveling on the michera was reunited with

the other defendants aboard the cutter.

E. Land Patrol

Omar Villarubia Ruiz ("Villarubia"), a Puerto Rico police

officer assigned to the Customs Task Force, was involved in various

aspects of the operation on land. First, he was one of the

officers hiding by the beach in Aguadilla, waiting for Avilés to

hand the fake kilos off to Lassalle and Carrero. Villarubia and

another police officer, concealed in the bushes with a night-vision

video camera, recorded what happened on the beach that night.8

After filming the scene, Villarubia was tasked with going to

Mayagüez where, the following morning, he was waiting when the

Coast Guard officers arrived with the defendants. He photographed

the four defendants and helped transport them. At some point,

8
It is unclear what part of the night's events were recorded,
whether it was surveillance while the officers waited, the
shootout, Carrero and Lassalle's flight, or some combination of
these things.

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Villarubia also went to the police station where he field-tested,

organized, and packed the seized drugs.

ICE Special Agent Victor Manuel Ramos ("Ramos") also

participated in the operation. Ramos met with Coast Guard

personnel at the Mayagüez seaport to assist in securing the

evidence and transporting the four defendants.

F. The Trial

The defendants were each indicted on one count of

conspiracy to posses with intent to distribute a controlled

substance (21 U.S.C. § 841) and one count of conspiracy to import

a controlled substance (21 U.S.C. §§ 952, 960, and 963). The four

defendants were tried together, with trial starting on September

14, 2009. The defense theory, as evidenced by opening statements,

was that the defendants were wrongfully arrested fisherman out on

an innocent fishing trip. Defense counsel theorized that Cancel

and the air surveillance team momentarily lost sight of the actual

mothership after the drug exchange had occurred. They claimed the

air team then caught sight of the defendants' fishing boat and

wrongfully assumed it was the mothership.

The government painted a different picture during the

five day trial. It presented evidence that pointed to the

defendants' guilt. Those involved in the overall undercover and

interdiction operation were called as witnesses, including Avilés,

Cancel, and Cabán. To rebut the wrongfully-targeted-boat theory,

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Cancel testified that he and the aircraft crew never lost sight of

the michera because they tracked it the entire time with the

aircraft's camera. Still pictures taken by that camera were

introduced, showing the michera before and after the drug exchange,

and Cancel testified that these photographs all depicted the same

boat. The government also introduced the data extracted from the

michera's GPS (much more on this later) and video taken by Cancel

(more on this too). At the close of the government's case, all

defendants moved for a judgment of acquittal. The district court

denied the motions. The defendants then sought to call a maritime

expert witness, however, the court would not allow the testimony.

The defense had no other witnesses to call and no evidence to

present, and so each side gave its closing argument. After about

an hour and a half, the jury returned guilty verdicts for all four

defendants on both counts. These appeals followed.

II. DISCUSSION

The defendants each assert multiple claims of error.9 We

9
Espinal, in addition to advancing his own arguments, seeks
to join in the other co-defendants' arguments pursuant to Fed. R.
App. P. 28(i). He has failed to do so properly. This court has
stated that "[a]doption by reference cannot occur in a vacuum and
the arguments must actually be transferable from the proponent's
to the adopter's case." United States v. Brown, 669 F.3d 10, 16
n.5 (1st Cir. 2012). Further, "issues that are adverted to in a
perfunctory manner absent developed argumentation are waived." Id.
In this case, Espinal's attempt to join in the other co-defendants'
arguments could not have been more perfunctory -- he merely stated
that he "joins in any and all other arguments raised by the other
criminal co-defendants . . . that . . . are applicable to his
case." Accordingly, Espinal's "attempted arguments by reference

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will address each argument in seriatim, providing additional facts

as needed.

A. Jury Voir Dire

1. Ex Parte Conversations

At trial the judge conducted portions of the jury voir

dire ex parte, and Peguero, Tatis, and Hernández claim this

practice impinged on an assortment of rights. What happened was

this. During jury voir dire, the district court asked the venire

if their impartiality would be affected because the case involved

narcotics. In response to one juror's reply that she "consider[s]

people who are involved [in] selling drugs [as] actual slave

masters," the court excused her and defense counsel requested a

sidebar. At sidebar, Carrero's counsel10 stated that he would

"prefer" if future "points of view" could be shared "at the bench."

Both Hernández's and Tatis's counsel expressed identical concerns

to the judge. Tatis's counsel added that she had "filed a motion

for proposed voir dire which included approaching the bench."

The judge then addressed the venire explaining to them

that the juror had been excused because "she expressed this firm

opinion," but did not know all the facts of the case. The judge

went on to say that as jurors, they needed to be "open minded and

are forfeited." Id.
10
Carrero was still in the case at this point. He pled out
the following day.

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. . . get to know the facts first before [they] make a decision."

She added that if any member of the venire had "a particular

opinion as severe" as the excused juror, she would prefer that they

share their opinions up at the bench. Going forward, when a

sidebar discussion was requested by a potential juror or desired by

the court, the judge spoke privately with the juror at the bench,

but nonetheless on the record, while all the attorneys remained at

counsel table. The judge then reported what the juror said in open

court to the attorneys and in the defendants' presence. None of

the defendants objected to this practice.

On appeal Peguero and Tatis argue that the ex parte jury

voir dire process described above violated their Sixth Amendment

right to a public trial and to be present.11 Hernández does not

make a constitutional argument but rather claims the practice

violated Rule 43(a) of the Federal Rules of Criminal Procedure,

11
In support of their public trial argument, Peguero and Tatis
rely on Presley v. Georgia, 130 S. Ct. 721 (2010) (per curiam) and
Owens v. United States, 483 F.3d 48 (1st Cir. 2007). However, both
cases are factually inapposite as they involve total courtroom
closures in which the public was excluded from jury voir dire. See
Presley, 130 S. Ct. at 722; Owens, 483 F.3d at 54. Both also
involved preserved claims. In Presley, the defendant objected to
the closure at trial. See 130 S. Ct. at 722. In Owens, the
defendant did not object at trial, but did request an evidentiary
hearing on his public trial claim in a habeas petition and it was
the denial of this request that this court was reviewing. See 483
F.3d at 61.

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which requires that the defendant be present at every stage of the

trial.12

Because none of the defendants objected to the procedure

utilized by the court, our review is for plain error. See United

States v. Rivera-Rodríguez, 617 F.3d 581, 600-04 (1st Cir. 2010).

To establish plain error, a defendant must show that (1) an error

occurred, (2) the error was obvious, (3) the error affected

substantial rights, and (4) the error seriously impaired the

fairness, integrity, or public reputation of judicial proceedings.

See United States v. Delgado-Hernandez, 420 F.3d 16, 19-20 (1st

Cir. 2005).13

We have dealt with this type of jury voir dire situation

before in United States v. Rivera-Rodríguez. In that case, the

district court on its own initiative engaged in ex parte

communications with fifteen potential jurors during jury selection,

without objection from defense counsel. See Rivera-Rodríguez, 617

F.3d at 601-02. As is the case here, the defendants argued on

12
Hernández also makes a passing argument that the district
court further erred because some of the ex parte discussions were
in Spanish. While 48 U.S.C. § 864 requires that all proceedings in
the United States District Court for the District of Puerto Rico be
in English, Hernández provides no developed argument for his
position, and so we decline to fill in the blanks for him. See
Colón v. R.K. Grace & Co. 358 F.3d 1, 6 (1st Cir. 2003).
13
Because many of the issues that the defendants raise on
appeal are not preserved, we will be applying this standard
throughout but not necessarily reiterating all of the elements each
time.

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appeal that the practice violated their Sixth Amendment right to a

public trial and their right to be present under Rule 43(a). See

id. at 600. This court, which found the ex parte voir dire process

"troubling," assumed arguendo that the first two prongs of plain

error had been satisfied, namely that an obvious error had

occurred. Id. at 588, 600. This court went on to find that the

third prong, requiring a substantial affect on a defendant's

rights, had not been satisfied. See id. at 605. Only two of the

jurors who participated in the ex parte communications were

selected to serve on the jury and so we found no basis to conclude

that these two ex parte communications, or the resulting jury

composition, violated the defendants' rights or affected the

trial's outcome. See id. at 601, 604-05. As was the case in

Rivera-Rodríguez, the defendants cannot satisfy prong three.

Here only one juror who engaged in ex parte

communications with the court was ultimately selected for service.

She was a student who very briefly spoke with the judge at the

bench, but on the record, about her school schedule and whether it

would affect her ability to serve. The judge then immediately

notified counsel of the contents of the discussion and no one

claims the court incorrectly reported the juror's concern (or for

that matter the concerns expressed by any of the jurors the judge

spoke with at the bench). We find no likelihood that this ex parte

conversation about personal scheduling somehow tainted the jury

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composition or affected the defendants' statutory rights,

constitutional rights, or the trial's outcome. Because defendants

have failed to satisfy the third prong, we need not consider the

fourth; no plain error has been shown.14

2. Law Enforcement Bias Question

Hernández argues that the district court should have

asked the jury venire a specific question, to wit "would [you] give

added credence to testimony by agents or government employees," to

ensure that no one was biased in favor of law enforcement.

Hernández never asked the district court to make this particular

inquiry and so we review for plain error. See Rivera-Rodríguez,

617 F.3d at 600.

"The Supreme Court has held that a defendant's right to

an impartial jury can be satisfied without the court's inquiring

into every specific prejudice feared by the defendant." Therrien

v. Vose, 782 F.2d 1, 4 (1st Cir. 1986) (citing Ristaino v. Ross,

424 U.S. 589, 595 (1976)). Our review of the voir dire transcript

reveals that the court took sufficient measures to guard against

jury bias favoring law enforcement. See Therrien, 782 F.2d at 4.

First, the court asked if any of the potential jurors were familiar

14
As a brief aside, though the defendants do not prevail on
this issue, the ex parte jury voir dire practice that they have
called our attention to is not optimal. As we have said before,
"we think it unwise for district judges to engage in ex parte voir
dire beyond purely ministerial functions." United States v.
Candelaria-Silva, 166 F.3d 19, 31 (1st Cir. 1999). We reiterate
that message here.

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with or had "a close relationship with any . . . Federal

prosecutor." It further inquired whether any member of the venire

was a "Federal law enforcement officer or a Puerto Rico law

enforcement officer," and if they "had a close association with a

Federal law enforcement officer by friendship or otherwise . . .

[l]ike, for example, that you're a very close friend to an FBI

Agent, and the FBI Agent tells you about all the things they do and

how they do them." These inquires were adequate to weed out

potential jurors who might be partial to law enforcement. In fact,

three jurors were excused because they were law enforcement

officers or had ties to a law enforcement officer. There was no

error; we need go no further.

3. Excluded Spectator

Espinal claims the district court wrongly excluded a

spectator from the courtroom during jury voir dire in violation of

his Sixth Amendment right to a public trial. However, there is no

record support for this contention.15 Without such support, we are

unable to address Espinal's claim. The argument is waived. See

Conto v. Concord Hosp., Inc., 265 F.3d 79, 81-82 (1st Cir. 2001)

(finding a claim waived because the appellant did not comply with

15
Prior to oral argument, Espinal filed a motion with this
court seeking to submit a sworn statement from the allegedly
excluded spectator, Espinal's brother-in-law. The motion was
denied. Espinal then filed a motion to remand his case to the
district court for further proceedings on the exclusion issue.
This motion was also denied.

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the Federal Rules of Appellate Procedure's requirement that the

appellant rather than the court "ferret out and articulate the

record evidence considered material to each legal theory advanced

on appeal.")

B. In-Court Identifications

The district court erred, all of the defendants assert,

when it did not suppress identification evidence on due process

grounds. On a preserved claim, we review a district court's

decision to admit or suppress identification evidence de novo and

the underlying findings of fact for clear error. See United States

v. De León-Quiñones, 588 F.3d 748, 753 (1st Cir. 2009). However,

when a defendant fails to object to the admission of the

identification evidence below, we review only for plain error. See

id. Here, Espinal and Hernández objected at trial, and Tatis and

Peguero did not.

Identification evidence is for the jury in all but

extraordinary cases and typically a "court should suppress

identifications made before trial and in the courtroom on due

process grounds only if it is persuaded that there was a very

substantial likelihood of irreparable misidentification." United

States v. Rivera-Rivera, 555 F.3d 277, 282 (1st Cir. 2009)

(internal quotation marks and citation omitted). To determine

whether suppression is called for, we apply a two-step analysis.

We consider first whether the identification procedure that

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preceded the identification was unnecessarily suggestive. See id.

at 283. If it was, then we ask whether the identification itself

is reliable notwithstanding the suggestive procedure. See De León-

Quiñones, 588 F.3d at 753. If the identification is reliable, it

is admissible. See id.

Reliability is the key; it is assessed by evaluating the

totality of the circumstances and the analysis is witness specific.

See id. at 753, 754. Some of the factors to be considered in

assessing reliability are: "'(1) the opportunity of the witness to

view the criminal at the time of the crime; (2) the witness' degree

of attention; (3) the accuracy of the witness' prior description of

the defendant; (4) the level of certainty demonstrated by the

witness at the confrontation; [and] (5) the length of time between

the crime and the confrontation.'" Id. at 753-54 (quoting United

States v. Henderson, 320 F.3d 92, 100 (1st Cir. 2003)). This two-

step inquiry into suggestiveness and reliability applies when a

defendant (as two of them here do) alleges that his in-court

identification was "tainted by an unnecessarily suggestive

confrontation that occurred outside the presence of the jury." Id.

at 754.

1. Espinal's Identification

At trial, Avilés identified Espinal as the individual on

the mothership who was directly in front of him when the light came

on a second time after a bag of drugs had been dropped on Avilés's

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hand. Espinal has two issues with this in-court identification.

First, he claims it was tainted because Avilés saw Espinal's

photograph after the drug exchange and before he testified at

trial. Specifically, three days after the undercover operation

concluded, Avilés, at the request of a colleague, downloaded

photographs of the four defendants from the colleague's camera to

a compact disc. Espinal labels Avilés's encounter with the

photographs, which he likens to a photo show-up, as unnecessarily

suggestive. Second, Espinal contends that based on the

circumstances surrounding his and Avilés's encounter, Avilés's

identification is unreliable. Espinal points out that the drug

exchange occurred at night, with virtually no lighting, on rough

seas, and in a tense situation. Espinal concludes that under these

conditions Avilés could not have possibly gotten a good enough look

at Espinal on which to base his later in-court identification. He

theorizes that Avilés's identification was based on what he saw in

the photographs, as opposed to what he saw that night at sea.

We start our inquiry by asking whether there was an

unnecessarily suggestive identification procedure that preceded the

identification.16 See De León-Quiñones, 588 F.3d at 753. Our

16
For some time this court has adhered to the approach that
all suggestive identification procedures, not just those
orchestrated at the hands of police, should be scrutinized. See
United States v. Bouthot, 878 F.2d 1506, 1516 (1st Cir. 1989).
However, following a disagreement among the circuits, the Supreme
Court recently took up this issue and said otherwise. See Perry v.
New Hampshire, 132 S.Ct. 716 (2012). Citing the aim of deterring
law enforcement from using improper line-ups and photo arrays, as

-22-
ability to answer this question is complicated by the fact that we

do not know much about the circumstances surrounding Avilés's

viewing of the photographs. On cross-examination Avilés testified

that he saw photographs of the defendants prior to trial because,

a few days after the undercover operation, he was asked by a

colleague to transfer photographs of the four defendants from that

colleague's camera to a CD. Defense counsel did not explore this

issue any farther, or elicit any additional information. For

example, we do not know what exactly the pictures depicted (e.g.,

were these pictures of Espinal and the others in handcuffs) or the

circumstances of the requested download (e.g., did the colleague

tell Avilés that these were the guys who were arrested).

well as the built-in safeguards that protect against juries placing
too much emphasis on eyewitness testimony of questionable
reliability, the Supreme Court held 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." Id. at 730 (emphasis added). What this means in
this case is less than clear. On one side of the spectrum we have
incidents that are clearly orchestrated by police (a line-up
arranged to be intentionally suggestive) and those that are clearly
not (a testifying witness running into the defendant in the
courthouse hallway before trial). The photo downloading incident
seems to fall somewhere in between. It was arranged by law
enforcement in the sense that Avilés's colleague asked him to
download the pictures, but Avilés's viewing of the photos was
really a simple side effect of his performance of an administrative
task. Because it is a close call, and in the end we do not think
any due process rights were impinged, we will assume that the photo
downloading incident qualifies as being arranged by law enforcement
and we will go on to consider whether it was unnecessarily
suggestive.

-23-
 That being said, it is likely that these were the

photographs Villarubia took of the defendants when they had just

arrived in Mayagüez. These photographs, according to Villarubia's

testimony, depicted each defendant against a solid colored wall,

photographed from the front and side. If in fact Avilés downloaded

some other photographs of the defendants, it seems a safe

assumption that because the photos came from a colleague's camera

and Avilés downloaded them at the colleague's request, that the

photos had something to do with the defendants' capture and/or

arrest and Avilés knew this. Because the record is insufficiently

developed on this issue and we are left to employ guesswork, we

simply assume in defendant's favor that some type of unnecessarily

suggestive procedure occurred and we proceed to the second step of

the analysis. See De León Quiñones, 588 F.3d at 754 (assuming that

a pre-identification encounter where a witness saw the defendant in

handcuffs and in the courtroom was impermissibly suggestive); but

see Rivera-Rivera, 555 F.3d at 283-84 (finding no impermissibly

suggestive episode when a witness, who identified the defendants as

the men who robbed him, confirmed for police the identity of the

defendants immediately after their arrest, and then saw the

defendants, in custody, three or four times after the robbery).

As we said, even when an unnecessarily suggestive

procedure preceded the identification, the identification is

nonetheless admissible if it is reliable. See De León-Quiñones,

-24-
588 F.3d at 753. And so we ask whether Avilés's identification of

Espinal was reliable. With the factors to be considered and the

totality of the circumstances in mind, we answer in the

affirmative. Avilés testified that during the drug transfer he

"took a look at the guys" and that the boats were so close they

collided twice. As the drugs were transferred, Avilés used a pole

to keep the two boats close so that they were touching. At the

point at which Avilés saw Espinal, a light was turned on and he was

able to see Espinal clearly. Avilés, who conceded he only saw two

of the four individuals on the boat, unequivocally (in fact, he

used the word "undoubtedly") identified Espinal as one of them.

The evidence makes clear that Avilés had a good opportunity to view

Espinal when the light was turned on, and Avilés had a strong

degree of certainty that it was Espinal he saw. The circumstances

render the identification reliable. See De León-Quiñones, 588 F.3d

at 754-55.

Because of this, suppression of Avilés's identification

was not required. As we pointed out, it will be the rare case

where identification evidence is not proper fodder for the jury.

See id. at 753. This is not that case.

2. Hernández's Identification

At trial, Avilés also identified Hernández. He testified

that Hernández was the captain of the mothership, the man who was

operating the two motors. Like Espinal, Hernández claims his in-

-25-
court identification was the product of an impermissibly suggestive

pre-trial identification procedure and was unreliable.

Hernández's argument that there was a suggestive pre-

trial procedure is a fleeting one that is not bolstered by any

developed argument, but we charitably assume that he is referring

to the same photo downloading incident as Espinal. For the reasons

set forth in the previous section, we again assume that some type

of unnecessarily suggestive identification procedure occurred.

As with Espinal though, Hernández's due process claim

still fails because Avilés's identification of Hernández was

reliable. Again, we conduct our analysis with the relevant factors

and totality of the circumstances in mind. Avilés testified that

he recalled a light being turned on and seeing the "captain" of the

mothership sitting toward the rear of the vessel maneuvering two

motors at the same time. Avilés specified that the captain was

stationed between the motors with a lever in each hand. He

described this sight as "not normal" and "impressive" and

identified Hernández as the captain with the impressive skills.

Again Avilés's in-court identification was punctuated with

certainty as he testified that Hernández was "undoubtedly" the

captain of the michera. This evidence leads us to conclude that

Avilés had a good opportunity to view Hernández when the light

shone on him and indeed Avilés recalled details about Hernández

maneuvering the two motors. This detailed recollection "reflects

-26-
attentiveness to his surroundings." See Rivera-Rivera, 555 F.3d at

284. Further, as he did with Espinal, Avilés expressed certitude

that it was Hernández on the boat. The identification was

reliable. Suppression was not required.17

3. Peguero's Identification

At trial, Villarubia identified Peguero as one of the

four arrested men he picked up at Mayagüez. Peguero summarily

claims that Villarubia's identification should have been suppressed

because it was suggestive and unreliable, and therefore violated

his due process rights. However, a close read of Peguero's actual

position reveals that he is not in fact arguing that the

identification was suggestive or unreliable. Rather, Peguero is

contending that because Villarubia's identification of him was

based on the pair's on-land encounter, it is not enough to connect

him to the on-the-sea drug exchange. Therefore, any due process

identification argument is waived for failure to develop it. See

Rodríguez v. Municipality of San Juan, 659 F.3d 168, 175 (1st Cir.

2011) (explaining that it "should go without saying that we deem

waived claims not made or claims adverted to in a cursory fashion,

unaccompanied by developed argument").

17
Tatis makes an identification argument as well, however
Tatis does not argue that any identification of him was
problematic. Rather he says that Avilés's identification of an
unspecified co-defendant (presumably Espinal or Hernández) was
unreliable. This argument, to say nothing of its lack of
specificity, gets Tatis nowhere. For the reasons just given,
Avilés's identification of both Espinal and Hernández was reliable.

-27-
 To the extent Peguero is advocating for suppression based

on some type of sufficiency argument, a claim which we remind is

not preserved, he fares no better. It is within the jury's

province to decide whether, given the totality of the evidence

produced at trial, there was enough to establish that Peguero was

one of the men on the mothership. Suppression of Villarubia's

identification testimony, which was just one link in the chain of

evidence, clearly was not called for.

C. Prosecutorial Vouching

During opening statements, the prosecutor spoke about

what Avilés was going to testify to at trial. The prosecutor

stated:

Because unbeknownst to defendant Carrero-
Hernández and Lassalle-Velázquez, the person
that they hire to go there and receive the
narcotics was an undercover officer from the
Police of Puerto Rico who was working as a
task force officer from the Immigration and
Customs Enforcement Agency in Mayagüez. He
was posing in his undercover capacity as a
boat captain. He represented to be someone
that was in the business of going out there to
get narcotics and introduce it into Puerto
Rico. That person is sitting here in court
today, is Sergeant Richard Avilés, who is
going to testify as to the events that
happened in this investigation pretty soon.

. . .

You also are going to hear details about what
finally happened the day in which Sergeant
Avilés went out there to meet the mothership,
get the narcotics, and come back to Puerto
Rico . . . The last thing that Sergeant Avilés
is going to testify is to what happened on the

-28-
 25th. The day he went out, and in fact, was
able to come back with the narcotics.
(Emphasis added).

As referenced by the prosecutor, Avilés was sitting in the

courtroom during opening statements.

On appeal, Tatis and Hernández both claim that the

prosecutor improperly vouched for Avilés. Tatis, for his part,

argues that the prosecutor suggested Avilés was more likely to be

credible because he was an agent of the government. Hernández

claims that Avilés's mere presence in court constituted improper

vouching. Neither defendant objected to the prosecutor's comment

or Avilés's presence and so we review only for plain error. See

United States v. Cruz, 156 F.3d 22, 30 (1st Cir. 1998).

"'Improper vouching occurs when the government place[s]

the prestige of the United States behind a witness by making

personal assurances about the credibility of a witness . . . or

implies that the jury should credit the government's evidence

simply because the government can be trusted.'" United States v.

Gentles, 619 F.3d 75, 83 (1st Cir. 2010) (quoting United States v.

Robinson, 473 F.3d 387, 396 (1st Cir. 2007)). If the court

determines that improper vouching occurred, we must decide whether

the prosecutorial misconduct "so poisoned the well" as to merit a

new trial. Id. at 81.

Here the prosecutor did not improperly vouch -- he simply

gave the jurors a preview of the evidence that the government

-29-
intended to present at trial including a preview of Avilés's

testimony, which is consistent with the purpose of opening

statements. See United States v. Hershenow, 680 F.2d 847, 857-58

(1st Cir. 1982)(explaining that the "purpose of an opening

statement 'is to state what evidence will be presented, to make it

easier for the jurors to understand what is to follow, and to

relate parts of the evidence and testimony to the whole'" (quoting

United States v. Dinitz, 424 U.S. 600, 612 (1976) (Burger, C.J.,

concurring))). While the prosecutor did mention Avilés's presence

in the courtroom to the jury, he took absolutely no action to imply

or suggest that they should credit or elevate Avilés's testimony

just because he was a government agent. See Robinson, 473 F.3d at

396 (finding no improper vouching because "the government neither

made statements about the witnesses' credibility nor implied that

they could be trusted based on their affiliation with the United

States"); see also United States v. Pérez-Ruiz, 353 F.3d 1, 10 (1st

Cir. 2003) (finding no improper vouching because the prosecutor

"neither expressed her personal opinion regarding the veracity of

any witness nor implied that [the witness] should be trusted

because of some connection to the government"). On this record we

find no improper vouching. Because of this we need not embark on

a well-poisoning inquiry.

-30-
 D. Trial Judge's Comments

1. Regarding the Evidence

At trial, the items seized from the michera were

introduced into evidence. At a bench conference, the attorneys for

Tatis and Peguero challenged the chain of custody of this evidence.

In response, the district court judge spontaneously stated: "I have

no doubt in my mind that this is the gun, the bullets, and the GPS.

And for that reason, I admitted it into evidence. The evidence is

overwhelming to that respect, okay?" Tatis's counsel responded,

"Judge, you speak so loud that the jurors . . . the jurors heard

you." The judge stated, "I'm sorry. I'm trying not to . . . Ok.

Very well." The jury was not polled to determine whether any jury

member actually heard the comment. No curative instruction was

requested and none was given by the court.

On appeal, Hernández, Tatis, and Espinal all take issue

with this comment. They each make various assertions about why the

comment was improper, e.g., the judge usurped the fact finding

function of the jury; the judge favored the government's theory of

the case; and the comment prejudiced the defendants, poisoned the

jury, and impinged on the defendants' right to a fair and impartial

trial. These arguments can best be characterized as allegations of

a due process violation based on judicial bias.

When faced with a judicial bias claim, we ask whether the

comment was improper and, if so, whether the complaining party can

-31-
show serious prejudice. See United States v. Angulo-Hernandez, 565

F.3d 2, 10 (1st Cir. 2009); see also Logue v. Dore, 103 F.3d 1040,

1045 (1st Cir. 1997) ("An inquiry into the judge's conduct of the

trial necessarily turns on the question of whether the complaining

party can show some serious prejudice."). When we review for

judicial bias, "we consider [] isolated incidents in light of the

entire transcript so as to guard against magnification on appeal of

instances which were of little importance in their setting."

United States v. Ofray-Campos, 534 F.3d 1, 33 (1st Cir. 2008)

(internal quotation marks and citation omitted). Clearly a trial

judge should be fair and impartial in her comments during a jury

trial because a fair trial in a fair tribunal is a basic

requirement of due process. See United States v. de la Cruz-

Paulino, 61 F.3d 986, 997 (1st Cir. 1995). "However, a finding of

partiality should be reached only from an abiding impression left

from a reading of the entire record." Id. (internal quotation

marks and citation omitted).

We disagree with the defendants that the judge's comment

was improper. The judge was simply explaining, in response to

defense counsel's challenge to the evidence's chain of custody, why

she admitted the items into evidence and why she was satisfied

there was no chain of custody issue. The judge's comment was made

to the attorneys at the bench; it was not intended for the jury.

It is pure speculation that any jury member heard it since the jury

-32-
was never polled by the judge sua sponte, or at the request of any

defendant. We see nothing wrong with the comment.

Even assuming that the comment was audible to the jury

and this rendered it improper, the defendants cannot show

prejudice. This was a lone, isolated comment about the items

seized from the mothership. It took place on day four of a five

day trial. The judge instructed the jury, both at the beginning

and end of the trial, that the case needed to be decided solely on

the testimony and exhibits, and that comments by the judge should

not be taken by the jury to indicate one way or another what the

verdict should be.18 A curative instruction addressing this

particular incident (and again none was requested) very well could

have drawn the jury's attention to something they had actually paid

no mind to. Moreover the evidence did in fact support a finding

that those were in fact the items seized from the mothership.

Viewing this one comment in this manner, we see no serious

prejudice.

18
Specifically, at the beginning of the trial, the judge told
the jury that they were "going to be the judges of the facts," that
"nothing that [the court] may say or . . . do should be taken by
[the jury] as indicating what the verdict should be," and that
"most importantly, [they] ha[d] to keep an open mind until all the
evidence [wa]s in." At the end of the trial, the judge instructed
the jury to "decide the case solely upon the evidence presented,"
not to "read into" anything the court may have said, to disregard
"anything that [the jury] may see or hear" that did not come from
the "witness stand and from the exhibits marked in evidence," and
not to "draw any inference against" the attorneys because of any
admonishments that the court may have given.

-33-
 2. Regarding the Witness

Tatis alone takes issue with additional comments made by

the trial judge. These comments occurred during Cancel's testimony

when the prosecutor asked Cancel to plot some coordinates on a map.

Peguero's counsel objected, stating that the government had not

established that Cancel was qualified to plot the coordinates. The

judge responded: "He's a licensed pilot. A licensed pilot can do

that in two seconds time, so go ahead." Cancel then asked: "Can I

say something?" The prosecutor responded: "Sure." Cancel stated:

"I'm also a vessel commander." Tatis's counsel interjected

complaining that there was no question pending and Cancel was

talking up his qualifications. The judge responded: "I'm satisfied

that this individual who is here before us, who is a pilot,

Customs' pilot, can actually do a plot on that chart. It's as

simple as that."

To this court, Tatis claims that the judge improperly

commented favorably on the qualifications of a government witness

and then allowed that witness to bolster his own testimony. Again

we take this to be a judicial bias allegation, and so ask the

relevant two questions: were the comments improper and was there

serious prejudice. See Angulo-Hernandez, 565 F.3d at 10.

While it is debatable whether the judge's remark that

Cancel could plot coordinates "in two seconds time" was an

inappropriate commentary not supported by the evidence or just a

-34-
permissible and harmless metaphor, we think the judge's comments

overall were relatively benign given that the jury had already

heard testimony that Cancel was a pilot. As we have often said, a

"criminal defendant is entitled to a fair trial, not necessarily a

perfect one." United States v. Santiago, 83 F.3d 20, 25 (1st Cir.

1996). Also we do not agree that the judge improperly allowed

Cancel to bolster his testimony. It was the prosecutor who invited

Cancel to speak without a question pending, not the judge. And we

do not think there was any need for curative measures on the

judge's part once Cancel's statement about being a vessel commander

was made. Cancel made a statement about what he does for a living,

which was relevant to his qualifications to plot coordinates.

Striking the statement or admonishing Cancel was not required. We

conclude the judge did not act improperly. Nor, for the reasons

set forth in the previous section (i.e., the isolated nature of the

comments and the cautionary instructions given by the court), can

Tatis demonstrate serious prejudice.

E. Authentication of GPS Evidence

The GPS device that was seized from the mothership was

admitted into evidence after being identified by Cabán, the Coast

Guard officer who had arrested the defendants on the mothership,

and Ramos, the ICE officer who had taken custody of the GPS on

land. José Durand ("Durand"), a Customs forensic scientist who is

"in charge of working all evidence that arrives at the lab related

-35-
to portable media," was then called to testify. Durand had

retrieved the GPS's data and, employing Garmin (the manufacturer of

the GPS) and Google Earth software, had analyzed the GPS's data.

At trial, the GPS's data, in paper and compact disc form,

was admitted into evidence. Durand then loaded the data into the

Garmin software and onto a computerized map depicting Puerto Rico,

the Dominican Republic, and the waters in between. Durand then

pointed out and marked on the map the GPS's track points, which

revealed where the GPS (and thus the michera) was located at

various times during the night of the drug exchange. During this

testimony the government showed the jury previously admitted

photographs of the michera, which were taken from the air by

Cancel. The photographs -- which indicated the coordinates of the

photographed area and the time the photograph was taken -- showed

that the photographed boat and the GPS were at similar locations at

similar times.19

Durand then loaded the GPS's data into the Google Earth

software, which resulted in a red line that depicted the michera's

course during the night in question. He then plotted on the map

the coordinates of the boat Cancel was following and marked these

with a white arrow. Again the GPS's coordinates and the

19
For instance, the data revealed that the GPS was at the
coordinates 18:45:19 north, 67:58:03 west at 8:00 p.m. One of the
photographs taken by Cancel showed the michera at 18:44:26 north,
67:56:51 west at 8:07 p.m. At 9:24 p.m., the GPS was at 18:39:52
north, 67:49:09 west. At 9:25 p.m., the photographed boat was at
18:40:30 north, 67:48:39 west.

-36-
coordinates of the photographed boat matched up. Hard copy

versions of the marked-up Google Earth maps were admitted into

evidence.

On appeal, Espinal argues that (1) the GPS device and (2)

the GPS evidence (i.e., the GPS data and the software produced maps

with the michera's trajectory) were not properly authenticated and

therefore should not have been admitted by the district court. We

take each contention in turn.

1. GPS Device

With regard to the device itself, Espinal claims that

there was nothing to distinguish the GPS that was introduced at

trial from any other Garmin GPS on the market, and the GPS's chain

of custody was suspect. Espinal did not object to the GPS's

admission at trial and so we review for plain error. See United

States v. Shoup, 476 F.3d 38, 42 (1st Cir. 2007).

Our inquiry is guided by Federal Rule of Evidence 901,

which states that in order to "satisfy the requirement of

authenticating or identifying an item of evidence, the proponent

must produce evidence sufficient to support a finding that the item

is what the proponent claims it is." Fed. R. Evid. 901(a). This

does not mean that the proponent must rule out all possibilities

inconsistent with authenticity, rather "the standard for

authentication, and hence for admissibility, is one of reasonable

-37-
likelihood." United States v. Savarese, 686 F.3d 1, 11 (1st Cir.

2012).

Evidence is properly admitted if it is "readily

identifiable by a unique feature or other identifying mark."

United States v. Luna, 649 F.3d 91, 103 (1st Cir. 2011). If that

is not the case, or if the evidence is susceptible to alteration,

"a testimonial tracing of the chain of custody" is needed. Id.

The time for authenticating evidence is before it is admitted;

however, if evidence is admitted prematurely, a new trial is not

warranted when later testimony cures the error. See id. at 103-04.

We turn to the record evidence.

Prior to the GPS device being admitted into evidence, the

following testimony was elicited. Cabán testified that he and his

crew seized a GPS from the mothership the night of the

interdiction. He then directed Officer Aarón Ríos, a member of his

crew, to transfer the GPS from the mothership to the Coast Guard

cutter. The boats then headed to Mayagüez -- Cabán and his crew in

the mothership and other Coast Guard personnel in the cutter with

the GPS and other seized items. When presented with the GPS that

the government sought to introduce into evidence, Cabán confirmed

that it was the GPS he had seized that night, stating he recognized

the GPS based on its "gray front plate" and brand, Garmin.

Ramos also offered testimony about the GPS. Ramos

testified that he met up with the Coast Guard officers in Mayagüez

-38-
and took custody of the GPS. Ramos prepared a Customs Form 6051

("Form 6051"), which is a custody receipt used for seized property

and evidence. He indicated the GPS's serial number on the form.

Another agent then signed for the evidence. The government

presented Ramos with Form 6051 at trial and he reviewed it. Ramos

was then shown the GPS and asked whether it was the same one he had

received from Coast Guard officers that night. He said yes and

that he knew this because the serial number on the GPS corresponded

with the serial number on the Form 6051. He then read the serial

number into the record.

Based on this evidence, we find that the GPS was properly

authenticated. Said another way, there is a reasonable likelihood

that the GPS was what the government purported it to be. Cabán,

the first to come into contact with the GPS, identified it based on

its appearance and brand. Ramos identified the GPS by its serial

number, which he had recorded when he received the GPS. The

testimony of Cabán and Ramos established how the GPS got from the

mothership to Ramos. The district court did not commit any error,

let alone an obvious one, in admitting the GPS.

2. GPS Data and Analysis

As we said, the remainder of Espinal's authentication

challenge is aimed at the data generated by the GPS (the hard copy

report and CD) and the software produced analysis of this data.

His basic contention is that the government did not establish the

-39-
accuracy or reliability of the processes employed by the GPS itself

or the Garmin and Google Earth software. He also claims that due

to the specialized and technical nature of the GPS evidence, expert

testimony (as opposed to Durand's lay testimony) was needed to

authenticate the evidence. Espinal says that absent such a

foundation, the GPS evidence should have been excluded. Espinal

did not preserve his objection below and so we review for plain

error.20 See Shoup, 476 F.3d at 42.

Federal Rule of Evidence 901(b)(9), which Espinal relies

on, is the provision "typically . . . employed to authenticate data

generated by a mechanism." 31 Wright & Gold, Federal Practice and

Procedure § 7114 (2012). It provides an illustrative

authentication technique, which is that the proponent may offer

evidence "describing a process or system and showing that it

produces an accurate result." Fed. R. Evid. 901(b)(9).

Considering this issue, we have explained that "evidence derived

20
It is clear that Espinal did not object to the admission of
the GPS data -- his counsel stated that he did not have an issue
with the "information inside" the GPS. Espinal's counsel did
however object to the analysis that the software performed of the
data, i.e. drawing the michera's trajectory. Counsel vaguely
asserted that the software program would effectively be acting as
an expert, but did not actually articulate a legal basis for the
objection as required by Federal Rule of Evidence 103 (stating that
to preserve a claim of error on a decision to admit evidence a
party must have "state[d] the specific ground, unless it was
apparent from the context"). Because Espinal failed to state a
specific ground for his objection, and we cannot glean from the
context of his objection that the basis was lack of authentication,
his trial objection failed to adequately preserve his claim on
appeal. See, e.g., United States v. Vargas, 471 F.3d 255, 264 (1st
Cir. 2006).

-40-
from the operation of a machine or instrument normally depends for

its validity on the premise that the device was in proper working

order." United States v. Doyon, 194 F.3d 207, 212 (1st Cir. 1999).

A court may however take judicial notice of the foundational facts

if the evidence resulted from "a process or system that is

generally known and accepted as accurate." 31 Wright & Gold,

Federal Practice and Procedure § 7114 (2012).

Here the trial judge did not take judicial notice of any

foundational facts but it is clear, based on comments made by the

judge, that she viewed GPS technology as commonplace (i.e., "Do you

know how many thousands of GPS are in the market today?"; "Every

single luxury car has one."; "I have one in my pocket right

now.").21 And the judge distinctly told counsel that she did not

think expert testimony was needed with regard to reading and

plotting coordinates from the GPS (i.e., "You don't have to be a

rocket scientist to read a GPS."; "My nine year old can do that.";

"You don't have to be an expert to plot on a nautical map.") While

GPS technology is prevalent in our society, we are not convinced

that the ability to read and plot coordinates from a GPS is as

banal as the district court made it out to be, and we think a

better foundation could have been laid for the GPS data and

21
These comments, as well as the next trio of remarks, were
made by the trial judge at a bench conference. The subject of the
conference was defense counsels' complaint that the government had
identified Durand as an expert (though ultimately did not call him
as one) but never produced an expert report. More on this dispute
later.

-41-
software generated maps. That being said, the district court's

decision to admit the evidence, absent more foundational evidence

and an expert witness, does not constitute an obvious error. Again

we take a look at the evidence.

Prior to the admission of the data, Durand set forth his

qualifications. He testified that he has been a forensic scientist

with Customs for eight and a half years and has been in charge of

"working all the evidence that arrives at the lab related to

portable media," including GPS, for a year and a half. Durand had

been specially trained with respect to GPS devices and had analyzed

ten to twelve GPS devices during his time with Customs.

Durand then testified about the process employed by the

GPS device itself. He explained that a GPS "contains data

concerning the location of the GPS," and that this location is

determined by the GPS hooking up with a satellite, with twenty-

seven such satellites currently revolving around the world. He

testified that GPS devices typically capture latitude, longitude,

days, hours, height, and altitude. Durand explained that he had

analyzed the GPS seized from the michera and based on pictures he

had taken and the existence of corresponding serial numbers he

confirmed that the GPS introduced at trial was the GPS he analyzed.

When presented with the hard copy report of the GPS's data, Durand

explained it was a report of "the data I collected from the GPS."

-42-
The CD, he noted, contained "the GPS digital data" plus "the hard

copy" report in digital form.

At this point in Durand's testimony, the GPS data was

admitted into evidence. Thereafter he got into more specifics,

explaining that a GPS produces way points (user stored

information), routes (the coming together of way points), and

tracks (a series of non-user created data that is the result of the

GPS's connection to a satellite, which shows where the GPS is

located). Durand added that elapsed time, the distance traveled,

the area covered, and average speed is also recorded on the GPS.

With regard to the process employed by the Garmin

software, the following evidence came in. Durand testified that he

had Garmin software that could analyze the GPS data contained on

the disc. At that point, the Garmin software generated map was

published to the jury. Durand then explained that when he selected

a particular activity log, which itself contained multiple track

points from the GPS, a yellow dot was generated on the computerized

map. Durand then walked the jury through the GPS's data, charting

the michera's path on the map. At one point during this exercise,

Durand was asked about a sixteen-minute gap in the GPS's

transmission and he explained that GPS devices can lose

communication with satellites for various reasons (e.g., because

they are shut off or because of atmospheric conditions).

-43-
 As for the Google Earth software, Durand confirmed that

this software could not only show the data from the GPS but also

plot additional coordinates. Durand indicated that he could (and

he did) call up the GPS's data with the software. He testified

that one could plot specific coordinates, including pre-programmed

ones, with the software, which Durand did as well. He further

explained that the software produced a red line that indicated the

data from the GPS and the additional coordinates (the photograph

coordinates) were indicated with a white arrow. Durand went

through and plugged in these additional coordinates for the jury.

The marked-up maps generated by Google Earth were introduced into

evidence. Durand was then asked whether GPS devices have a margin

of error and he explained that commercial GPS devices have an

intentional margin of error from five to fifteen meters so that

they will not be as accurate as those possessed by the government

for national security reasons.22

The record reveals that Durand offered a good amount of

testimony about the processes employed by the GPS, the Garmin

software, and the Google Earth software. He was not specifically

asked, and did not precisely testify, whether the GPS and the

22
As the preceding narrative shows some of the authenticating
testimony came in before the actual physical exhibits were
introduced and some came in after. In instances where evidence is
admitted prematurely but is authenticated with later testimony,
there is no reversible error. See Luna, 649 F.3d at 103-04. We
are not saying that this is what happened here, but for this reason
we are not going to differentiate between evidence that came in
before and after.

-44-
software were in good working order or whether he was confident

they produced accurate results.23 Nonetheless it is reasonable to

infer that Durand would have said that the GPS and software were

working fine and turning out accurate results. He showed no

hesitation, and no concerns as to accuracy or reliability, when

offering the GPS's data or when plotting it with the software.

Furthermore, he spoke to the reliability of GPS technology in

general -- that GPS devices can lose communication with satellites

and that commercial GPS devices have an intentional margin of

error. Also the fact that the GPS data and the software plotted

courses were consistent with the location of the boat photographed

by Cancel underscored the processes' accuracy. We are satisfied

that the GPS data and software generated evidence were adequately,

if not extensively, authenticated.

As for Espinal's claim that proper authentication

required expert testimony, we do not see things the same way.

There are indeed situations where this court has said that expert

testimony is a must. See, e.g., Hochen v. Bobst Group, Inc., 290

F.3d 446, 451 (1st Cir. 2002) (finding that expert testimony was

needed when the nature of a defect, and its causal connection to a

printing press explosion, was complicated). However, this is not

one of them. The issues surrounding the processes employed by the

23
It would have been better practice for the prosecutor to lay
such a foundation, but its absence does not mean that the evidence
should have been excluded.

-45-
GPS and software, and their accuracy, were not so scientifically or

technologically grounded that expert testimony was required to

authenticate the evidence, and thus the testimony of Durand,

someone knowledgeable, trained, and experienced in analyzing GPS

devices, was sufficient to authenticate the GPS data and software

generated evidence. See, e.g., United States v. Thompson, 393

F.App'x. 852, 858-59 (3d Cir. 2010) (finding that a lay witness's

testimony concerning the operation of a GPS device, including

authentication of the GPS's data, was properly allowed by the trial

court).

Given Durand's testimony about the processes employed by

both the GPS and the software, his lack of reservation as to the

data, his confident use of the software, the fact that a serial

number comparison confirmed that the GPS Durand analyzed was the

same one confiscated by Ramos, and the fact that the coordinates

from the GPS and Cancel's photographs were similar, we find that

the reasonable likelihood standard for authentication of the data

and software generated maps was satisfied. See Asociación de

Periodistas de Puerto Rico v. Mueller, 680 F.3d 70, 79 (1st Cir.

2012) ("so long as the evidence is sufficient to allow a reasonable

person to believe the evidence is what it purports to be, it is

left to the fact finder to determine what weight it deserves")

(internal quotation marks and citation omitted). The trial judge

did not commit an obvious error by admitting the evidence.

-46-
 F. Rule 16 Expert Disclosure

Prior to trial Durand was identified by the government as

an expert witness. Along with his curriculum vitae, a summary of

Durand's anticipated testimony was provided, though nothing

detailing what opinions he might offer. During Durand's testimony,

defense counsel requested a sidebar. Various objections were

raised, the pertinent one being advanced by Tatis's counsel who

objected because the government had not provided an expert report.

The prosecutor referred counsel to the summary of Durand's

anticipated testimony that had been provided. The court said the

summary was sufficient; the disclosure did not need to be in report

form. The prosecutor added that he had only identified Durand as

an expert out of "an abundance of caution" but that he would not be

testifying as such. The trial judge agreed with this approach and

Durand was never qualified as an expert or presented to the jury as

an expert.

On appeal Peguero and Hernández (in verbatim arguments)

contend24 that the district court abused its discretion by allowing

Durand, whom they characterize as an expert witness, to testify

without the government having provided a written summary of his

opinions in accordance with Federal Rule of Criminal Procedure

24
Tatis and Espinal allude to Durand not providing an expert
report in their briefs, but offer no precise argument.

-47-
16(a)(1)(G).25 The government counters that Durand did not testify

as an expert and so there is no Rule 16 issue.

Whether Peguero and Hernández preserved this claim on

appeal is up for debate. It was Tatis's counsel that brought the

Rule 16 issue to the court's attention but even that objection

(that the disclosure was not in report form) and the one before us

(that the disclosure did not include Durand's opinions) are not

really the same. During the sidebar colloquy Hernández's attorney

did try to argue something about Durand not being qualified as an

expert but he was cut off by Tatis's attorney. Peguero's attorney

said nothing. Because there was a lot of back and forth and

interrupting, it is hard to tell who was arguing what. Therefore,

we will treat the objection as preserved making abuse of discretion

the standard to meet. See United States v. Hilario-Hilario, 529

F.3d 65, 71-72 (1st Cir. 2008). Plus in the end it does not

matter; defendants cannot succeed even under this more friendly

standard.

"There is no bright-line rule to separate lay opinion and

expert witness testimony" and decisions considering this issue are

often in tension. Id. at 72. The problem we typically see is that

a witness "may be qualified to provide both lay and expert

25
The rule requires the government "give to the defendant a
written summary" of any expert testimony that "the government
intends to use." Fed. R. Crim. P. 16(a)(1)(G). That summary "must
describe the witnesses's opinions, the bases and reasons for those
opinions, and the witness's qualifications." Id.

-48-
testimony in a single case." Id. (internal quotation marks and

citation omitted). It is arguable that portions of Durand's

testimony, such as his explaining how GPS technology works and his

plotting of the GPS data, reflected a "specialized knowledge and .

. . heightened sophistication normally associated with expert

testimony." Id. But we sidestep this thorny issue because even

supposing that Durand's testimony straddled or crossed the line

into expert testimony, defendants cannot prevail.

To obtain a reversal based on a Rule 16 claim, a

defendant has to show prejudice. See id.; see also United States

v. Rosario-Peralta, 199 F.3d 552, 559 (1st Cir. 1999). Neither

Peguero nor Hernández have even attempted to make this critical

showing. And we do not think they could have. The government

provided a summary of Durand's expected testimony, which mirrored

his eventual testimony. Namely that Durand would (as the

disclosure read) "testify as to the route, tracks, way-points and

coordinates which the vessel carrying defendants . . . was at

different hours during the night of January 25, 2008 and the time

surrounding the drug smuggling venture." The government did not,

in accordance with Rule 16, state what opinions Durand was expected

to offer at trial but this is not particularly concerning given

that Durand did not ultimately offer opinion testimony.26 Rather

26
The only opinion-like testimony was mentioned earlier in
this decision. Durand was asked why there was a sixteen-minute gap
in the GPS's transmission. He could not say for sure but explained
that these gaps happen for various reasons when the GPS loses

-49-
he used the GPS data to track the michera's path, just like the

disclosure said. Further, defendants were given the opportunity to

consult with an expert to discuss this GPS data prior to trial

(more to follow on this).

In light of the above, there was no prejudice to Peguero

or Hernández. They had sufficient information before them to

prepare for Durand's testimony and to cross-examine him. The Rule

16 claim falls flat. The court did not abuse its discretion in

allowing Durand to testify without requiring more of a disclosure

from the government.

G. Request for a Continuance

Durand was the government's final witness and he

testified on day four of trial, a Friday. At the conclusion of his

testimony, around 5:30 p.m., a bench conference was held at which

Espinal's attorney requested a continuance so that defense counsel

"could have a couple of hours" to discuss Durand's testimony with

an expert. The trial judge responded: "No. The motion is denied,

and you're going to do the cross right now. I have another trial

on Monday, and we haven't finished this one yet." No one objected

and defense counsel went ahead with their cross of Durand.

Hernández's attorney asked one question and Espinal's attorney

asked a few. Counsel for Tatis and Peguero did not ask any.

communication with the satellites. Assuming this was an opinion,
this one statement is not enough to tip the prejudice scales.

-50-
 On appeal, Espinal and Tatis argue that the district

court erred when it denied the continuance request.27 They say the

denial hindered their ability to mount a defense and properly

cross-examine Durand, implicating their right to confront witnesses

and to meaningful assistance of counsel.

We review a district court's decision to deny a

continuance for an abuse of discretion. See United States v.

Correa-Alicea, 585 F.3d 484, 491 (1st Cir. 2009). Relevant factors

meriting consideration are the reason for the request, the amount

of time needed, the complexity of the case, the extent of

inconvenience to others if the request is granted, and the

likelihood of injustice or prejudice resulting from the denial.

See United States v. Williams, 630 F.3d 44, 48 (1st Cir. 2010). To

establish abuse the aggrieved party must show "that the court

exhibited an unreasonable and arbitrary insistence upon

expeditiousness in the face of a justifiable request for delay."

Id. (internal quotation marks and citation omitted). It is

27
In a related argument, Peguero claims that the district
court also wrongfully denied the defendants' request, which came
the following Monday, to have a maritime expert testify for the
defense. We need not get into the particulars of the request or
the court's denial of it. It suffices to note that although
Peguero recites the relevant facts, the sum total of his argument
is that the court committed an abuse of discretion by not allowing
the defendants to present an expert witness. No analysis or legal
citations undergird this assertion. We decline to address such an
underdeveloped argument. See Colón, 358 F.3d at 5-6 (explaining
that "it is not this court's role to assemble a coherent argument
for one side merely because evidentiary pieces are mentioned
somewhere among the factual recitations and the topic sentence of
the argument is supplied").

-51-
essential that prejudice from the ruling be identified. See id.

Defendants have not made this showing.

The request here was for consultation with an expert to

discuss Durand's testimony pertaining to the GPS reading and

mapping. The subject matter, though detailed and technical, was

not overly complex. As for the amount of time the defendants

needed; they did not specify. But given that the request came at

the end of the day on a Friday, we do not think it would have

caused a great inconvenience for the judge to have granted the

continuance and for Durand's cross-examination to have gone forward

on Monday, particularly since it was clear the trial would continue

into the next week. That being said, district courts "enjoy broad

discretion in managing their dockets," and the judge indicated that

she had another trial starting up. Delgado v. Pawtucket Police

Dep't., 668 F.3d 42, 50 (1st Cir. 2012).

While a defendant's right to present a defense cannot be

sacrificed to achieve expeditious docket management, we do not

think that is what happened here. The defendants have not

established that the judge's denial was unreasonable and arbitrary

and significantly, the critical prejudice showing is missing. At

a status conference five days prior to the start of trial, the

defendants requested funds so that they could consult with an

expert, Captain José Rivera, with whom they wanted to go over the

GPS evidence. The judge approved a consultation for up to five

-52-
hours. At this time, the defendants had already received the GPS

evidence from the government. They also had a summary of Durand's

expected testimony, which as we said in the previous discussion,

matched up with the testimony he gave. Because of this Espinal and

Tatis had adequate time before trial to consult with an expert, and

they had sufficient information to make that consultation

meaningful. The trial judge is not to be faulted for not allowing

them to take a second crack at it. The court did not commit an

abuse of discretion in denying the continuance request.

H. Voir Dire of Cabán

During Cabán's testimony the 9 mm gun, ammunition clip,

and GPS were admitted into evidence. Peguero's attorney requested

that defense counsel be allowed to cross-examine and voir dire

Cabán regarding the evidence. The judge said yes to cross-

examination but no to voir dire, stating that cross-examination was

sufficient as the issue was one of weight as opposed to

admissibility.

To this court, Hernández argues that the court's denial

of voir dire violated his right to a just and fair trial and to

present a defense. He does not flesh this argument out, offering

no explanation as to how the denial negatively affected him or why

the cross-examination allowed by the court was not adequate. As we

have said, a "litigant has an obligation to spell out its arguments

squarely and distinctly or else forever hold its peace." United

-53-
States v. Zannino 895 F.2d 1, 17 (1st Cir. 1990) (internal

quotation marks and citation omitted). That is all we need to say

on this issue.

I. Brady Violation

As alluded to in our narrative of the goings-on at trial,

a video taken by Cancel with the plane's camera was introduced into

evidence. Cancel had downloaded the video from the plane's digital

video recorder ("DVR"), which is a hard drive-like device that had

stored the video. He then transferred the video to a DVD disc.

The DVD video was played for the jury and introduced into evidence.

The video started at 9:47 p.m., approximately twenty-

seven minutes after the drug exchange had been completed. The

video showed the michera traveling through the water, it being

intercepted by the Coast Guard, and the defendants' arrests. It

did not show the beginning of the mission, namely the michera's

approach to the UC boat, the two boats floating in tandem, and the

actual unloading of the drugs. Cancel, during his testimony,

explained to the jury that this was because when he attempted to

download the beginning portion of the video, a DVR failure occurred

and that portion of the video was lost.28

Espinal sought to examine the DVR prior to trial, but his

request was denied by the court. On appeal, Tatis argues that the

28
As we mentioned before the plane actually had two DVRs,
however, one of them was not functioning properly from the
beginning of the mission and so the crew was not using that DVR.

-54-
government's failure to turn over the DVR constituted a Brady

violation. See Brady v. Maryland, 373 U.S. 83 (1963). He contends

that he needed to inspect the DVR because the lost video (assuming

he could extract it) could provide evidence of other boats in the

area of the UC boat. Such video, he says, would be helpful support

for the defendants' mistaken-boat theory.

We start by outlining the particulars of the request for

the DVR. In its pretrial scheduling order, issued March 12, 2008,

the court (among other things) ordered the government to turn over

all Rule 16 discovery, including all information and material that

might be favorable to the defendants within the scope of Brady.

The government turned over some initial discovery. Not satisfied

with what he received, Espinal (who is not alleging a Brady

violation on appeal) filed two motions requesting that the

government produce the videos taken by the aircraft. The

government filed a response saying that due to a technical

malfunction they were unable to recover any video from the

aircraft. It provided a letter from Avalex Technology, the DVR's

manufacturer whom the government had engaged to repair the DVR and

recover the video, which indicated that Avalex's efforts at

retrieval had been unsuccessful. Espinal responded by filing a

motion in which he made various discovery demands, including (most

pertinent to our inquiry) asking the court to order the government

to allow him to inspect the DVR so that an expert could be engaged

-55-
to try and retrieve the lost video. Espinal did not specifically

invoke Brady in his request to inspect the DVR though he did in

another portion of the motion when he requested audio recordings of

the conversations between the aircraft crew.

In the meantime, the government received word that

Customs did in fact have a video recording depicting part of the

night's events on DVD (the DVD that was ultimately introduced at

trial). The DVD was turned over to the defendants. Because of

this, the district court denied Espinal's motions seeking discovery

of the videos as moot. The court never ruled on the motion in

which Espinal requested to inspect the DVR and so a month later

Espinal filed another motion reiterating his request. The court

responded this time, denying the motion in an electronic order.

The court did not elaborate on its reasoning other than to say that

based on the parties's submissions it was denying the motion.

Espinal requested reconsideration and was denied.

Nearly a year later, and a month before trial, Tatis

(who, to refresh the reader's recollection, had not requested to

inspect the DVR but who is pursuing the Brady issue on appeal)

filed a motion in limine. Tatis sought to prevent the government

from offering the DVD video taken by Cancel into evidence arguing

that it would be prejudicial and confusing to the jury because it

was not the complete recording of the evening's events. Tatis also

referenced the court's denial of Espinal's request to inspect the

-56-
DVR, noting that the defendants had no way of verifying the

technical malfunction. The court denied the motion in limine.

The essential elements of a Brady claim are: the evidence

at issue must be favorable to the accused either because it is

exculpatory or impeaching; the evidence must have been willfully or

inadvertently suppressed by the government; and prejudice must have

ensued. See United States v. Avilés-Colón, 536 F.3d 1, 19 (1st

Cir. 2008). "The government is primarily responsible for deciding

what evidence it must disclose to the defendant under Brady."

United States v. Prochilo, 629 F.3d 264, 268 (1st Cir. 2011). In

a situation where a defendant has made only a general request for

Brady material, the government's decision about that disclosure is

ordinarily final (unless later events reveal that exculpatory

evidence was not disclosed). See id.; see also Pennsylvania v.

Ritchie, 480 U.S. 39, 59 (1987). It is at this point where Tatis's

Brady claim first flounders.

There is no indication in the record that Tatis ever

requested to inspect the DVR, let alone alleged that it might

contain exculpatory material that he was entitled to under Brady.

His co-defendant Espinal did file a motion asking the court to

order inspection of the DVR (Tatis mentions this in his motion in

limine), but Espinal's motion did not contain an allegation that

the DVR evidence might exonerate. That leaves us with the court's

scheduling order, which contains a general command for the

-57-
government to turn over all potentially exculpatory material under

Brady. With only this general dictate, we think the government's

decision as to what was and was not potentially exculpatory, and

its decision not to turn over the DVR, should stand. See Prochilo,

629 F.3d at 268.

But we will assume otherwise for the sake of argument and

turn our attention to the Brady elements. Our inquiry starts and

ends with the first. To establish a Brady violation a defendant

must provide the court with at least "some indication" that the

materials he seeks to access contain material and potentially

exculpatory evidence. United States v. DeCologero, 530 F.3d 36,

64-65 (1st Cir. 2008); see also United States v. Brandon, 17 F.3d

409, 456 (1st Cir. 1994). Tatis has not done this.

Assuming Tatis would have been able to do what the DVR's

own manufacturer could not do and extract the lost video, there is

absolutely no indication that the video would contain potentially

helpful evidence of other boats in the area. In fact all

indications are to the contrary. Cancel testified no less than six

times that there were only five boats in the area. He said there

was the UC boat and the michera, which are both small boats, and

three large boats, which were ruled out because they were large.

This testimony was not equivocal -- Cancel stated that "within 32

miles range there was no other boat other than the three [large]

boats I talked to you about earlier, and the UC boat and the

-58-
michera." There was no evidence that contradicted this testimony.

Tatis's claim that there might have been more than these five boats

in the area is nothing short of pure speculation. His optimistic

expectation that the lost video might reveal this is also a shot in

the dark. Brady did not create a "general constitutional right to

discovery in a criminal case." Weatherford v. Busey, 429 U.S. 545,

559 (1977). We decline Tatis's invitation to hold otherwise.

Because Tatis has provided us with no indication that the DVR

evidence is material and potentially exculpatory, there is no Brady

violation.

J. Sentencing

Both Espinal and Hernández claim that their sentences are

unreasonable and that the district court made various errors in

connection with sentencing. "We typically examine sentencing

decisions for abuse of discretion, which is really a review for

reasonableness." United States v. Denson, 689 F.3d 21, 26 (1st

Cir. 2012). The two aspects of reasonableness are procedural and

substantive. See id. Both are implicated here as the defendants

make procedural-type claims, e.g., the court improperly calculated

the Sentencing Guidelines ("Guidelines") range and inadequately

explained the sentence, and substantive-type claims, e.g., the

sentence is unreasonably long. See Gall v. United States, 552 U.S.

38, 51 (2007). We start with Espinal's claims.

-59-
 1. Espinal's Sentence

Espinal was sentenced to twenty-four years in prison --

the lowest possible sentence in his applicable Guidelines range.

He cries foul, arguing that the district court should have reduced

his base offense level because he was a minimal participant in the

crime; that the court's explanation for the sentence imposed was

inadequate; and the sentence was unreasonably harsh. We start with

his minimal participant argument.

Espinal says his base offense level should be adjusted

downward four points because he played a small role in the drug

venture. He characterizes himself as a seaman turned mere courier,

and the real masterminds of the crime as big time underworld

bosses. The burden is on Espinal to show that he was a minimal

participant. See United States v. Santos, 357 F.3d 136, 142 (1st

Cir. 2004). To qualify as such, a defendant must prove that he is

"substantially less culpable than his cohorts in the actual offense

and that he is substantially less culpable than the vast majority

of those taking part in similar crimes." Id. In short, Espinal

must be a plainly peripheral player. See id. He has not shown us

that this is the case.

Though Espinal may not have orchestrated the drug deal,

like his co-defendants who pled out, or driven the michera, like

Hernández, he has not established that he was any less culpable

than his fellow so-called couriers, Peguero and Tatis. In fact,

-60-
Espinal was the only one that Avilés could affirmatively identify

as passing him the kilos of cocaine. Further, even if Espinal was

just a mere courier, this does not automatically entitle him to

minimal role reduction. See id. at 143; see also United States v.

Paz Uribe, 891 F.2d 396, 399 (1st Cir. 1989). Not to mention the

fact that there was a very large amount of drugs involved here.29

This alone "militates against a finding that his role was minimal."

Santos, 357 F.3d at 143. As we have said, it is a "rare case in

which a defendant will warrant designation as a minimal

participant." Id. at 142. Espinal has not met his burden of

showing that this is one of those cases.

Espinal next says the court did not adequately explain

the rationale behind the sentence. Pursuant to 18 U.S.C. §

3553(c), the district court "shall state in open court the reasons

for its imposition of the particular sentence." Here the judge's

explanation was by no means lengthy but she did explain that the

sentence was based on the kind and amount of drugs involved, the

presence of the gun, and the fact that, in the judge's view, none

of the defendants played a minimal role due to the large amount of

drugs involved.30 The judge did not get into Espinal's pre-sentence

29
According to the testimony, the quantity was about 400
kilograms of cocaine, one of the largest amounts that one Puerto
Rico police officer had ever seen seized. The amount the
defendants were ultimately convicted of was 418 kilograms.
30
The judge expressed the same sentiment at Hernández's
sentencing -- "Counsel, when you embark with an adventure of this
nature with 418 kilos of cocaine, nobody plays a minor role in that

-61-
memorandum contention that his imprisonment would cause extreme

hardship to his sick mother that he cares for. Nonetheless we

think the court's explanation was sufficient. As we have said,

brevity and inattention are not the same things and this is

especially so when the imposed sentence falls within the Guidelines

range. See United States v. Dávila-González, 595 F.3d 42, 48 (1st

Cir. 2010); see also Rita v. United States, 551 U.S. 338, 356-57

(2007) (finding that "when a judge decides simply to apply the

Guidelines to a particular case, doing so will not necessarily

require lengthy explanation"). Here Espinal received the lowest

possible sentence in his Guidelines range. The court's explanation

was sufficient. See, e.g., Dávila-González, 595 F.3d at 48

("Although it is true that the district court did not explicitly

address each of the appellant's arguments for a below-the-range

sentence, the court was not required to offer that level of

elucidation.").

Finally Espinal argues that a twenty-four year sentence

was too harsh given that he was a first time offender with no drug-

use history and that he resides with, and provides for, his sick

mother, common-law wife, and son. He says the sentence violated

the parsimony principle -- "the statutory directive that sentences

should be no higher than necessary to achieve the statutory goals

of sentencing." United States v. Turbides-Leonardo, 468 F.3d 34,

boat. Nobody."

-62-
41 (1st Cir. 2006); see 18 U.S.C. § 3553(a). The substantive

reasonableness of a sentence "depends largely on whether the

sentence imposed represents a defensible result supported by a

plausible rationale." Denson, 689 F.3d at 27. The sentence here

is grounded in a plausible rationale. Espinal participated in a

conspiracy to import a very significant amount of drugs -- 418

kilos of cocaine -- into Puerto Rico. He was part of the team that

brought those drugs over, and was the individual, or at least one

of the individuals, who handed the drugs over to Avilés. Espinal's

sentence, which is at the absolute bottom on the Guidelines range,

is defensible. See Turbides-Leonardo, 468 F.3d at 41 (stating that

it "will be the rare case in which a within-the-range sentence can

be found to transgress the parsimony principle").

We find no abuse of discretion here. Espinal's sentence

was procedurally sound and substantively reasonable.

2. Hernández's Sentence

Hernández, who like Espinal received the lowest possible

sentence in his applicable Guidelines range, was sentenced to

thirty years in prison. He argues that his sentence was

unreasonable and the court relied on two impermissible factors when

it sentenced him: a crime Hernández committed when he was eighteen

and the general havoc and societal ills caused by drugs. He adds

that the court was reluctant to consider mitigating factors. We

take his claims in order.

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 Hernández, who was forty years old at the time of trial,

had three prior convictions, all of which were listed on his pre-

sentence report: alien smuggling at the age of eighteen; illegal

re-entry at the age of nineteen; and more alien smuggling at the

age of twenty-three. The probation officer had originally used all

three crimes to calculate Hernández's criminal history category;

however, the probation officer determined before sentencing that

the crimes committed when Hernández was eighteen and nineteen

should not be considered. The judge was advised of this, and at

Hernández's sentencing explicitly stated that these two crimes were

not being considered. Thus the record makes clear that the court

did not rely on the very thing that Hernández accuses it of

improperly relying on. No more need be said.

We can also make quick work of contention two. Hernández

says that the judge relied "entirely" on the "general havoc and

social problems caused by drugs" when deciding his sentence. This

is not an accurate characterization of what happened. In response

to defense counsel arguing that Hernández deserved lenient

treatment, the judge referenced the "major havoc and social

problems" that the distribution of 418 kilos of cocaine –- the

specific amount Hernández was convicted of transporting –- would

cause. The judge was not referring to some generalized impact of

drugs on society; she was referring to the specific impact of

Hernández's crime. It is also clear that Hernández's sentence was

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not based, as he alleges, "entirely" on this consideration. When

explaining the sentence the judge cited the amount of drugs, the

fact that a weapon was on board the boat, and the fact that

Hernández was the captain of the michera.

Hernández's hazy recollection of the record aside, there

is no merit to his argument. The impact of a defendant's crimes on

society is a proper consideration for a sentencing court. See,

e.g., United States v. Pulido, 566 F.3d 52, 64 (1st Cir. 2009)

(finding no error where the district court emphasized the danger

that defendant's crimes posed to society); United States v. Gilman,

478 F.3d 440, 447-48 (1st Cir. 2007) (affirming a sentence based in

part on the court's consideration of the harm caused to society by

defendant's conduct). It was not an abuse of discretion for the

court to rely on this factor.

Hernández's final argument fares no better. He faults

the court's supposed reluctance to consider unspecified mitigating

factors. We assume Hernández to be referring to the arguments he

made at sentencing; that he was a minor participant and had not

been convicted of a crime in seventeen years. The record reveals

that the court did in fact consider these factors and found them

outweighed by other considerations, most especially the very large

amount of drugs involved. The court's decision to weigh more

heavily the seriousness of the offense rather than any mitigating

factors was well within its discretion. See United States v.

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Zapata, 589 F.3d 475, 488 (1st Cir. 2009) (stating that the

"court's decision to emphasize the nature of the crime over the

mitigating factors was a choice of emphasis that is not a basis for

a founded claim of sentencing error") (internal quotation marks and

citation omitted).

Hernández avers that the end result of these supposed

errors was an unreasonable sentence. We disagree. As there was

with Espinal, there is a plausible rationale for the sentence

handed down. Hernández participated in a conspiracy to import a

very large amount of drugs. He was the captain of the boat that

brought those drugs over. His sentence, also at the absolute

bottom of the Guidelines range, is defensible.

Again, the district court did not abuse its discretion.

Hernández's sentence was procedurally and substantively reasonable.

K. Cumulative Error

Espinal argues that the cumulative effect of the

respective errors he alleged require reversal. Because we did not

find merit in any of his individual complaints, it of course

follows that there was no reverse-worthy cumulative error. See

United States v. Brown, 669 F.3d 10, 28 (1st Cir. 2012).

III. CONCLUSION

After thorough consideration, we find no merit to any of

the defendants' claims of error. The convictions and sentences of

all four defendants are affirmed.

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