United States v. Carrasco

United States Court of Appeals
For the First Circuit

Nos. 06-1887, 06-1888

UNITED STATES OF AMERICA,

Appellee,

v.

OTILIO CARRASCO and
KELLEY MALA,

Defendants, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

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

Before

Lynch, Chief Judge,

Lipez and Howard, Circuit Judges.

Thomas R. Lincoln for appellant Otilio Carrasco.
Anita Hill Adames for appellant Kelly Mala.
Mariana E. Bauzá-Almonte, Assistant United States Attorney,
with whom Rosa Emilia Rodriguez-Vélez, United States Attorney,
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, and Germán A. Rieckehoff, Assistant United
States Attorney, were on brief, for appellee.

August 28, 2008
 HOWARD, Circuit Judge. Otilio Carrasco and Kelley Mala1

were arrested after a search of Mala's 21-foot boat revealed 47

kilos of cocaine and 170 grams of heroin, more or less. They were

convicted by a jury, and each now appeals on a variety of grounds.

Finding error below, we vacate and remand.

I. Facts2

A. The Arrest

The two men and a companion3 were traveling from the

United States Virgin Islands to Puerto Rico in a 21-foot boat.

Marine Enforcement Officers of the United States Customs Service

hailed the boat off the coast of Puerto Rico, in customs waters.

It took a little longer than usual for the boat to come to a

complete stop and get into a position where it could be boarded.

The officers then boarded the boat, demanding identification and

conducting a document and safety inspection. Everything was in

1
Mala's first name is spelled two different ways in the record.
We adopt the spelling Mala uses to sign his many pro se filings.
2
Facts adduced at trial are set forth in the light most favorable
to the verdicts. United States v. Girouard, 521 F.3d 110, 113 (1st
Cir. 2008). Facts related to the suppression hearing are explored
in more detail. The district court did not make specific findings
of fact about the circumstances surrounding the confessions. Nor
were these issues before the jury. We will note differing accounts
of these events.
3
The traveling companion was not charged in this case, but was
found to be in the United States illegally and was deported. Mala
claims the government failed to preserve testimony by deporting
her, but that contention is without merit and we make no further
mention of it or her.

-2-
order, but a search of the boat revealed drugs hidden in two

toolboxes, in a backpack and in a shoebox within the wheel housing

of the boat. Everyone aboard was arrested and taken to an

Immigration and Customs Enforcement Marine Enforcement office.

Accounts of what happened at the Marine Enforcement

office differ, but some facts are undisputed. Mala and Carrasco

each produced a signed, written confession -- Mala's was in his own

handwriting, Carrasco's was transcribed by an agent.4 Mala also

produced a note in his own handwriting. The note is addressed to

Carrasco and advises him to cooperate with authorities. Also

undisputed is that a DEA agent from the Virgin Islands, one Hilary

Hodge, was in telephonic contact with Mala before any statement was

given. No record of the conversation was made, nor was Hodge

available to testify. It was after this telephone conversation

that Mala produced first his statement and then the note to

Carrasco. The note was delivered to Carrasco, and he apparently

read it. Carrasco's statement was taken shortly thereafter.

B. The Hearing

The district court held a hearing to resolve two

suppression questions. The defendants challenged the search of the

boat as violative of the Fourth Amendment, and they challenged the

4
As discussed below, Carrasco at trial denied making the
statements memorialized in the confession, but he did acknowledge
that he signed the confession.

-3-
confessions as involuntary.5 At the hearing, Mala testified but

Carrasco exercised his Fifth Amendment privilege against self-

incrimination. The government produced as witnesses several law

enforcement officers who had been at the Marine Enforcement office.

At the suppression hearing, conflicting evidence was

presented regarding consent to the search. Government witnesses

testified that they confirmed that Mala was the owner and operator

of the boat, and that he consented to the search. They testified

that Mala became nervous as the search shifted to the stern of the

boat, but never withdrew his consent. Mala, on the other hand,

testified that he was not asked for his consent to the search, nor

did he give it. In a later docket entry, the district court found

that Mala had made a valid consent to the search, and that in any

case the search qualified as a border search and therefore consent

was unnecessary.

Testimony differed, too, about the circumstances

surrounding the confessions. According to testimony from the

government's witnesses, Mala was allowed outside with two law

enforcement agents to smoke cigarettes. While the three men were

outside, one of the agents spoke by cellphone with Hodge.6 Hodge

asked to speak to Mala and was permitted to do so. After the brief

5
Mala moved to suppress the confessions as coerced, and Carrasco
joined the motion to suppress.
6
The government witnesses did not remember if the call originated
with Hodge or with one of them.

-4-
conversation, Mala got off the phone and indicated he was ready to

make a statement. He confessed his guilt in a signed, handwritten

statement and asked to speak to Carrasco. The agents would not

allow it, in accordance with their normal procedure, but they did

permit Mala to send Carrasco a note. The note in essence said that

the jig was up and that Carrasco should cooperate with law

enforcement. Carrasco then dictated a statement of his own.

Again, Mala's testimony differed substantially. In his

version of events, he repeatedly asked to call his lawyer and his

family, but was rebuffed. He was then told someone wanted to speak

with him, and he was handed a cellphone. Hodge spoke, although he

did not identify himself, and Mala, never having met Hodge, did not

recognize the voice. Hodge told Mala they knew all about him and

threatened to seize Mala's businesses and other property in the

Virgin Islands, as well as Mala's parents' property, if he did not

cooperate. Hodge also threatened to have Mala's mother, who had

title to the boat, arrested as part of the conspiracy. Mala handed

the phone back to an officer, who spoke to Hodge for a few moments

and laughed before hanging up. Shaken by the threats, Mala asked

for a cigarette, even though he does not smoke cigarettes. He

smoked two or three. During this interlude, an officer repeatedly

asked him if he would make a statement. But when Mala wrote down

what had happened, and the statement reflected his innocence, the

officer said that it was not good enough and threw the statement in

-5-
the trash. As part of a deal with the agents, Mala testified, he

created a false confession and the note to Carrasco in order to

trick Carrasco into confessing.

On cross-examination at the hearing, the government

confronted Mala with his previous felony conviction for smuggling

cocaine. Mala conceded that he had the conviction on his record,

but countered that he had been sentenced to time served in a plea

arrangement that had come about because the government could not

prove he had been a knowing participant.

The district court ruled that the confessions would be

suppressed, citing sloppy police work, the unavailability of Hodge

to testify about the phone call, and inconsistencies between the

agents' testimony and other evidence. The district court said,

"[A]ll that's going to come before the jury when we try this case

is the fact that these people were stopped and they were found with

this cocaine in a 21-foot boat. . . . And if he takes the stand

you'll impeach him with this conviction." The government asked if

the confessions could be used as impeachment should either

defendant take the stand and testify inconsistently with them. By

way of answer, the district court said,

This is sloppy police work. I don't like the
way Mr. Hodge dealt with this issue. It is
entirely possible [Mala] felt he had to wheel
and deal and he turned back and sent all these
notes to the agents to give to the other guy.
The agents should never have allowed this to
happen. Maybe these statements are the whole
truth, but maybe they are not. And I don't

-6-
 care what happened other than the fact that
they were caught red-handed on a 21-foot boat
with this cocaine and heroin. And it is going
to be very difficult to explain to a jury. It
is as simple as that and that is what we are
going to try in this case.

C. Trial

At trial, Carrasco, against the advice of his attorney,

took the stand.7 He testified that he had no knowledge of the

drugs in the toolboxes. He said an acquaintance named Jose had

asked him to deliver tools to Jose's brother in Puerto Rico. Mala

adopted Carrasco as his own witness and elicited further testimony:

Carrasco alone had loaded the toolboxes, backpack and shoebox on

the boat; Mala had at no time opened the containers or been

apprised of their contents. The government, out of hearing of the

jury, asserted that because of Carrasco's inconsistent testimony it

was within its rights to use the confession for impeachment.

Mala's counsel objected, saying the confessions had been ruled

7
At trial, Carrasco had new court-appointed counsel; they had
first met a week prior. Counsel was presumably familiar with the
transcript of the suppression hearing summarized above, but she did
not represent Carrasco there. At sidebar before Carrasco
testified, counsel told the district court that she had warned
Carrasco that if he testified inconsistently with his prior
statements, they would be used to impeach him. Although the
government argues that Carrasco cannot have been prejudiced because
he was warned the confession might be admitted to impeach him, we
cannot credit this line of reasoning. Given that counsel's
admonition did not reflect the record at the time, and that
Carrasco had been very involved in his own defense, we cannot say
with certainty that Carrasco believed the warning. We further note
that if Carrasco did believe that the district court would admit
the statement, but believed that it would do so in error, his only
way to challenge the error would have been to take the stand.

-7-
involuntary. The district court said, "Impeachment is a different

story," and allowed the government to proceed.8 Carrasco,

confronted with the confession, denied making the statements it

contained, but acknowledged his signature and his initials on the

document. The jury returned guilty verdicts.

II. Discussion

Appellants raise a host of issues, both through counsel

and pro se. We will treat three claims in some detail.9 First,

each appellant claims that the district court erred in allowing the

fruits of the search into evidence. Second, each appellant, pro

se, claims that the evidence was insufficient to convict him of

either charge. And third, each man challenges the admission of

Carrasco's confession as impeachment evidence. We find no merit in

the first two of these claims, but the third requires us to vacate

the convictions and remand for a new trial.

A. The Search

Appellants moved to suppress the contraband, claiming

that they did not consent to the search and that the district court

8
The district court addressed the issue of admissibility for
impeachment again the following morning, asserting that an order in
the docket explicitly allowed the confessions to be used in this
manner. As discussed below, the docket does not reflect any such
order.
9
The rest we summarily dismiss as either insufficiently developed
or without merit.

-8-
erred in its alternative determination that the search met the

requirements of a border search.

When assessing the denial of a motion to suppress, "[w]e

review the court's findings of fact for clear error and its

application of the law to those facts de novo." United States v.

Morales-Aldahondo, 524 F.3d 115, 119 (1st Cir. 2008). Put another

way, "we will uphold the district court's decision if any

reasonable view of the evidence supports the decision." United

States v. Materas, 483 F.3d 27, 32 (1st Cir. 2007) (citation and

internal quotation marks omitted).

The Fourth Amendment protects the right of the people to

be secure against unreasonable searches and seizures of their

persons, houses, papers and effects. However, when consent is

given by someone with sole or common authority over the place to be

searched, the reasonableness inquiry is foreclosed. Illinois v.

Rodriguez, 497 U.S. 177, 181 (1990). Further, so long as law

enforcement officers reasonably believe that the person who gives

consent has the authority to do so, they may rely on that consent.

United States v. Meada, 408 F.3d 14, 22 (1st Cir. 2005).

The district court credited the testimony of law

enforcement witnesses that consent was given, over Mala's testimony

that it was not. While appellants might wish for a different

result, they are not entitled to one. "[A] district court's choice

between two plausible, but conflicting, interpretations of a

-9-
factual scenario cannot amount to clear error." Valentin v. Hosp.

Bella Vista, 254 F.3d 358, 367 (1st Cir. 2001). Nothing in the

evidence received shows that the district court's finding of fact

was clearly erroneous.

Carrasco also claims that because the containers were

entrusted to him alone, Mala could not give a valid consent for

their search. This premise is flawed. We have held that officers

may rely on consent given by someone who has apparent authority to

consent to the search. Meada, 408 F.3d at 22. Here, there is no

indication in any testimony that the authorities had any reason to

believe that Mala lacked authority to consent to the search of the

containers. The district court credited the testimony of law

enforcement officers who said they identified Mala as the owner and

operator of the boat. The containers were not locked, nor were

they identified as Carrasco's personal property. Further, neither

Carrasco nor Mala indicated at the time of the search that the

containers were not Mala's. Without any contrary information, the

searching officers had a reasonable belief that Mala possessed

authority to consent to the search.10

10
Because we uphold the district court's determination that
consent was given on which law enforcement could reasonably rely,
we need not address the separate conclusion of the district court
that the search was a border search.

-10-
B. The Sufficiency of the Evidence

Appellants claim that the jury did not have sufficient

evidence before it to convict them and that the district court

therefore should have granted their motions for judgment of

acquittal. Although the case is a close one, we disagree.

Because appellants moved for judgment of acquittal, our

review is de novo. United States v. Piesak, 521 F.3d 41, 44 (1st

Cir. 2008). To conduct that review, we consider the evidence in

the light most favorable to the verdict, drawing all reasonable

inferences so as to support it. Id. If a reasonable jury could

have found that the government had proven each element of the crime

beyond a reasonable doubt, we will affirm the conviction. Id.

The jury heard evidence that a large quantity of drugs

was found on a small boat, of which Mala was the captain. Carrasco

testified that he himself had loaded these containers onto the

boat. The jury also heard testimony to the effect that Mala was

reluctant to stop the boat for the Marine Enforcement officers, and

that he became nervous when the officers' search shifted to the

stern of the boat, where the drugs were hidden.11 The jury heard

testimony that none of the containers were locked or secured, and

11
Although there was some conflict in the testimony, the jury
would be entitled to credit one witness over another. In keeping
with our standard of review, we present the strongest case that
could be made out from the evidence at trial.

-11-
that the heroin, in particular, was in the wheel housing, to which

the pilot of the boat would have ready access.

Appellants rely on the principle that mere presence at

the scene of a crime is not enough to establish culpability beyond

a reasonable doubt. But this is not mere presence.12 First, the

boat was under Mala's command. Further, the jury could have

reasoned that Mala's reluctance to stop his boat indicated guilty

knowledge. Even if he was not in on the scheme from the beginning,

the jury might have reasoned, he might well have opened the

containers or insisted on knowing what was inside them, given their

large size and the lack of available space on the boat. Nor can

Carrasco claim mere presence: he told the jury himself that he

loaded the containers onto the boat.

"[J]uries may reason that a captain normally knows what

his ship contains." United States v. Steuben, 850 F.2d 859, 865

(1st Cir. 1988). While this maxim does not dispose of Mala's

challenge to the sufficiency of the evidence against him, it does

present a formidable barrier. In this case the maxim is

particularly apt: the boat was small and the cargo was large, and

the jury could reasonably infer that Mala might have discovered its

nature through inquiry, insistence or even inadvertence, if he did

not know from the beginning.

12
See United States v. Echeverri, 982 F.2d 675, 678 (1st Cir.
1993) ("[A] defendant's 'mere presence' argument will fail in
situations where the 'mere' is lacking.").

-12-
 We have often considered when a jury may reasonably infer

that a crewman or passenger on a boat had knowledge that the boat

also carried drugs. See, e.g., United States v. Guerrero, 114 F.3d

332, 342 (1st Cir. 1997); United States v. Piedrahita-Santiago, 931

F.2d 127, 131 (1st Cir. 1991); United States v. Mehtala, 578 F.2d

6, 9 (1st Cir. 1978); United States v. Francomano, 554 F.2d 483,

487 (1st Cir. 1977). "We have previously looked to factors such as

the closeness of the crew's relationship, the length of the voyage,

the size and condition of the vessel, the quantity of [drugs

aboard], and the absence of a legitimate purpose for the voyage."

Guerrero, 114 F.3d at 342. A crew with close relationships, on a

long voyage, in a small vessel or one that is suited to drug

smuggling (or ill-suited to anything else), on a trip without a

legitimate purpose, is more likely to be a crew that has knowledge

of the drugs aboard. Here, the voyage was brief, and the boat was

not of a sort or in a condition that would arouse suspicion.13 On

the other hand, Carrasco had worked for Mala before; he was not a

sailor hired off the dock or a youth in search of adventure and

experience. Cf. Francomano, 554 F.2d at 486-76. Moreover, the

large quantity of drugs and the small size of the boat make it more

likely that both of the men would have known or would have

discovered the nature of the cargo.

13
Additionally, there was, according to Carrasco's testimony, a
legitimate purpose for the trip.

-13-
 In addition, we acknowledge that these factors, not

exhaustive in any case, are less applicable to the facts of this

case, amounting to a short jaunt in a craft suitable for personal

transportation. Francomano and Mehtala, by contrast, concerned a

70-foot schooner. Mehtala, 578 F.2d at 7 n.4. Guerrero concerned

a 40-foot boat, one that had been heavily modified to make it more

suitable for smugglers. Id. at 342 (makeshift extra fuel tanks

crudely welded to the deck, boat modified to ride low in the water

to avoid detection, sophisticated radar and communications gear).

The situation we confront in this case is much less like an

eighteen-wheeler on a long haul and much more like a quick joyride

across town in the family car. In any event, the jury could

reasonably have inferred that either or both men knew of the

contents of the toolboxes, the backpack and the shoebox. For each,

something more than mere presence supports knowledge of the drugs:

Mala was captain of the boat; Carrasco testified to moving the

toolboxes himself. Because the jury could have inferred that both

men knew of the drugs, it could also have inferred that appellants

had agreed to transport them to Puerto Rico for the purpose of

distributing them, which is the essence of the conspiracy charge.

The evidence (even without the confessions) was sufficient to

convict appellants, and the district court did not err in denying

the Rule 29 motions.

-14-
C. Carrasco's Confession

Appellants claim that the district court erroneously

admitted Carrasco's confession to impeach his testimony at trial.

Their argument is not that the confession was inadmissible per se,

but that the district court, in admitting the confession,

contradicted its earlier ruling.

We focus on two issues: the district court's initial

statement -- which the government concedes was made -- that

Carrasco's confession could not be admitted to impeach him; and

whether that ruling rests on a finding of involuntariness. The

outcome of the suppression hearing was somewhat unclear, but due to

the government's concession at oral argument we regard it as

settled that the statement was to be suppressed for impeachment

purposes.

Indeed, this is the only plausible interpretation of the

district court's ruling at the hearing. In asserting at trial that

it had ruled the confessions admissible for impeachment, the court

stated that it had specifically noted in a docket entry that use

for impeachment would be permitted. The district court referred

defense counsel to this docket entry, saying that counsel could not

therefore claim unfair surprise when the statement came in for

impeachment.14 Neither the government nor we have located such an

14
The district court said,
Then I made a ruling afterwards, in a motion
saying that it extended to impeachment by the

-15-
entry. The government conceded at oral argument that the district

court must have been mistaken about the docket entry and in its

belief that it had previously ruled the confession admissible for

impeachment purposes. On appeal, therefore, it no longer is

contested that the court entirely excluded Carrasco's confession

from evidence.

Nevertheless, the concession that the statement was

inadmissible for impeachment does not resolve the question of

whether the confession had been ruled involuntary. Clearly, the

district court did not believe so, or constitutional principles

would have prevented the material from being used to impeach a

defendant.15 The district court asserted at trial that the

suppression of the confessions was a sanction to the government and

not a ruling that they were involuntary.16 But the reasons the

district court gave at the suppression hearing do reflect a concern

about voluntariness. As we note above, the district court said,

"It is entirely possible [Mala] felt he had to wheel and deal." We

statements. . . . I wrote it in a docket
entry, in a specific motion that if they would
testify I would allow the impeachment.
15
Confessions ruled involuntary may not be used to impeach a
defendant who has testified inconsistently with them. Mincey v.
Arizona, 437 U.S. 385, 397-98 (1978).
16
The desire to punish the government for not producing a witness
is not in any event a valid basis for suppressing evidence. This
case provides an object lesson in the confusion that results when
the district court makes rulings based on considerations other than
the merits.

-16-
need not resolve this ambiguity in the record, for even assuming,

arguendo, that the district court's initial ruling was not

constitutional in nature, we discern reversible error, nonetheless.

Because each man stands in a slightly different position

with regard to the confession and the course of events at trial, we

consider each appeal separately.

i. Carrasco

Carrasco's counsel did not object to the district court's

sudden reversal or the government's use of Carrasco's confession at

trial. Because even plain error review brings us to the conclusion

that his conviction must be vacated, we do not decide whether

another standard would be more appropriate in the unique

circumstances of this case.17

"To establish plain error, a defendant must show the

existence of (1) an error; (2) that is plain; (3) that affected his

substantial rights; and (4) seriously affects the fairness,

integrity, or public reputation of judicial proceedings." United

States v. Henry, 519 F.3d 68, 71 (1st Cir. 2008) (citations

omitted); see also United States v. Olano, 507 U.S. 725, 732

17
The use of an involuntary confession is reviewed to see if the
error was harmless beyond a reasonable doubt. Arizona v.
Fulminante, 499 U.S. 279, 310 (1991). The erroneous admission of
other kinds of inadmissible evidence is generally reviewed for
prejudice to the party protesting its use. See United States v.
Sepulveda, 15 F.3d 1161, 1182 (1st Cir. 1993). We need not choose
between these standards, as plain error review is a higher bar than
either.

-17-
(1993). The error with which we concern ourselves is the district

court's admission of Carrasco's confession after previously ruling

it inadmissible.

Failure to abide by previous rulings about admissibility

of evidence may be error, especially where there has been reliance.

See United States v. Gonzalez-Maldonado, 115 F.3d 9, 15 (1st Cir.

1997) (district court's reversal of earlier ruling that expert

testimony would be admitted was error). To be sure, the district

court has authority to reconsider its rulings. See

Fernández-Vargas v. Pfizer (Parent Corp.), 522 F.3d 55, 61 & n.2

(1st Cir. 2008). But that is not what happened here. The district

court did not reconsider, but rather misremembered, its ruling.

The result was an about-face on a crucial ruling, when a defendant

had already testified and counsel was powerless to rethink trial

strategy. The court was also mistaken that a docket entry

addressed the subject. The contrast between the record and the

district court's recollection is plain and obvious.

Carrasco must also show that his substantial rights were

affected by the error. Olano, 507 U.S. at 734. He "must show a

reasonable probability that, but for the error claimed, the result

of the proceeding would have been different." United States v.

Colon-Nales, 464 F.3d 21, 27 (1st Cir. 2006) (internal quotation

marks and citations omitted). He does not have to prove that it is

-18-
more likely than not that the error changed the verdict, however.

United States v. Dominguez Benitez, 542 U.S. 74, 83 n.9 (2004).

Carrasco's defense attacked the government's assertion

that he knew the drugs were in the containers. And this was a

close case. When a verdict is supported by overwhelming admissible

evidence we will not find plain error in the erroneous admission of

other evidence. See, e.g., United States v. Richardson, 515 F.3d

74, 83-84 (1st Cir. 2008); United States v. Munoz-Franco, 487 F.3d

25, 57 (1st Cir. 2007); United States v. Rivera-Rivera, 477 F.3d

17, 20 (1st Cir. 2007). Although there was circumstantial

evidence, there was hardly "overwhelming" admissible evidence.

Carrasco was one of three people on a very small boat with a large

quantity of drugs hidden in containers he loaded onto the boat.

But there was no evidence of guilty knowledge on his part during

the stop and search, no corroboration from anyone else that

Carrasco knew there were drugs in the containers, no physical

evidence linking him to the inside of the containers.

The government could have relied on the jury to make the

permissible inference that Carrasco knowingly possessed the drugs.

United States v. Azibuke, 504 F.3d 30, 37 (1st Cir. 2007) ("[T]his

court has recognized that a reasonable inference of knowledge

arises when the defendant is trusted with possession of a large

amount of drugs. This is because drug organizations do not usually

take unnecessary risks by trusting critical transactions to

-19-
outsiders."). While permissible, the inference is not compelled by

the mere fact of his possession of the containers. We do not say

that no jury could have convicted Carrasco on the admissible

evidence, but there is a reasonable probability that the district

court's error altered the result.

The district court changed its ruling after Carrasco had

testified; his decision to testify is for him alone, and is itself

a crucial piece of trial strategy. And a confession is no ordinary

piece of evidence. "[T]he defendant's own confession is probably

the most probative and damaging evidence that can be admitted

against him." Bruton v. United States, 391 U.S. 123, 139 (1968)

(White, J., dissenting); see also Fulminante, 499 U.S. at 296 ("A

confession is like no other evidence."). Regardless of the

ultimate admissibility of the confession itself, it is certain that

consideration of the earlier ruling would have influenced trial

strategy. The closeness of the case and the crucial importance of

the question of the confession's admissibility lead us to conclude

that Carrasco's substantial rights were affected by the district

court's error.

Finally, even when the first three prongs of the plain-

error test are met, we will decline to correct an error unless it

"seriously affects the fairness, integrity, or public reputation of

judicial proceedings." Olano, 507 U.S. at 736. After all, "there

are many fair trials, but few perfect ones." United States v.

-20-
Rainieri, 42 F.3d 36, 45 (1st Cir. 1994). The role of plain error

review is not to insist on perfect trials, but rather to safeguard

against unfair trials. Here, the district court's mistake about

its earlier ruling "seriously affects the fairness, integrity, or

public reputation of judicial proceedings."

Carrasco's Sixth Amendment right to conduct his defense

was hobbled by the district court's eleventh-hour decision to admit

his confession. Carrasco had already testified when the district

court ruled the statements admissible. We are aware that

suppression of a confession, even when the defendant testifies

inconsistently, might appear to be a license to commit perjury in

one's own defense. But that does not justify surprising the

defendant, after his testimony, with words previously ruled

inadmissible.

Further, Jackson v. Denno, 378 U.S. 368, 377 (1964),

entitles the defendant to a "reliable determination on the issue of

voluntariness." According to the record, there was no

determination of the voluntariness issue at all.18 Carrasco might

be forgiven for not insisting on an explicit ruling at the hearing:

when the confession was ruled inadmissible for impeachment the

18
A ruling that the confession would be admissible for
impeachment might also imply a ruling that the confession was not
coerced. But that is not the situation we confront, and we have no
call to rule on the adequacy of such an implicit ruling. Here, the
confession was, as the government concedes, ruled inadmissible for
impeachment initially.

-21-
question was effectively moot. But resurrecting, mid-trial, the

possibility of admission for impeachment once more placed this

issue center-stage. It is clear from the way matters unfolded that

Carrasco never received the ruling on voluntariness to which he was

entitled. And that raises the specter of basic unfairness in the

trial: Jackson explicitly rests on due process concerns that it is

fundamentally unfair to allow the government to use confessions

extracted by coercion. Id. at 384-88. "[T]he method used to

extract [coerced confessions] offends constitutional principles."

Lego v. Twomey, 404 U.S. 477, 485 (1972) (citations omitted).

These constitutional principles are themselves concerned with

"fairness" and "integrity."

On a more basic level, too, there is something

disconcerting about this error. The district court is usually

expected to abide by its own evidentiary rulings. Should a

district court wish to reconsider a ruling, it may do so, although

it should account for reliance on the previous ruling. But that is

not what happened here. The district court misremembered its own

ruling. Trial judges, like appellate judges, are fallible human

beings. Errors are therefore to be expected. But allowing such an

error to go uncorrected even though it may well have meant the

difference between conviction and acquittal would certainly erode

public confidence in the integrity of judicial proceedings.

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 Because the district court plainly misremembered its own

ruling and the state of the docket, and because the admission of

Carrasco's confession to impeach him may have made the difference

between his conviction and his acquittal, we must vacate Carrasco's

conviction.

ii. Mala

Mala's counsel raised a seasonable objection to the use

of Carrasco's confession. It is true that counsel did not utter

the words "I object," but it is equally apparent from the record

that Mala's counsel was the only person at sidebar who accurately

remembered the ruling at the suppression hearing or the state of

the record. In such a situation, further objection would clearly

have been futile. The district court was on notice that Mala

objected to the admission of the testimony, and the reason for the

objection. The district court even offered a justification --

albeit an incorrect one -- for the ruling the following day. We

therefore review the proceeding below to determine whether Mala

suffered prejudice because of the error. See Fed R. Crim. P.

52(a). "[A] harmlessness determination demands a panoramic,

case-specific inquiry considering, among other things, the

centrality of the tainted material, its uniqueness, its prejudicial

impact, the uses to which it was put during the trial, the relative

strengths of the parties' cases, and any telltales that furnish

clues to the likelihood that the error affected the factfinder's

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resolution of a material issue." Sepulveda, 15 F.3d at 1182. In

other words, to determine harmlessness, "we ask whether we can say,

'with fair assurance, after pondering all that happened without

stripping the erroneous action from the whole, that the judgment

was not substantially swayed by the error.'"19 United States v. Del

Rosario, 388 F.3d 1, 10-11 (1st Cir. 2004) (quoting Kotteakos v.

United States, 328 U.S. 750, 765 (1946)).

As with Carrasco, the case against Mala is a close one.

It is true that the captain of a boat may be found to have

knowledge of the things on that boat. See Steuben, 850 F.2d at

865. But under the circumstances we do not find that to tip the

balance. Government witnesses conceded at trial that the

containers were closed and that they had no reason to believe Mala

had opened them. It is true that the admission of Carrasco's

statement as impeachment evidence was probably less damaging to

Mala than to Carrasco himself. But the confession also directly

implicated Mala, and was read to the jury without redaction. The

confession was introduced for impeachment purposes, but the

district court did not give an instruction explicitly limiting its

use to that purpose. Without regard to whether the confession

ultimately should have been admitted, it is clear that Mala was

deprived by the earlier ruling and the district court's sudden

19
As discussed above, we assume without deciding that the
district court's initial ruling that the confession would be
suppressed was not based on a finding of coercion.

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change of mind of the opportunity to argue that the confession be

redacted or other measures taken to avoid the use of the confession

for other purposes.

The government argues that Mala could have cross-examined

Carrasco after the impeaching confession was admitted and thereby

mitigated or eliminated any prejudice in the district court's

about-face. But that ignores the reality of the trial: Mala had

already adopted Carrasco as his witness and conducted an

examination. Any hostile examination of Carrasco would have been

inconsistent with that and would have run the risk of confusing the

jury. Counsel at oral argument described the last-minute reversal

of the earlier ruling as "devastating" to her defense of Mala, and

we agree.

We cannot say with fair assurance that the district

court's reversal of its own ruling -- with no consideration for the

reliance of the parties, and after the defendant had already

testified -- did not sway the jury to convict. We must therefore

vacate Mala's conviction as well.

III. Conclusion

We affirm the district court's denial of the motion to

suppress the evidence seized after the search of the boat, we

affirm the denial of appellants' motions for judgment of acquittal,

and we vacate the convictions and remand for a new trial consistent

with this opinion.

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