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.
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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
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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.
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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
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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
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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.
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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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