United States Court of Appeals
For the First Circuit
No. 10-1318
UNITED STATES OF AMERICA,
Appellee,
v.
CRUZ ROBERTO RAMOS-GONZÁLEZ, a/k/a Robert Belleza,
a/k/a Belleza, a/k/a El Galán, a/k/a Crucito,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Lipez, Siler* and Howard,
Circuit Judges.
Linda Backiel for appellant.
Dina Avila-Jimenez, Assistant United States Attorney with whom
Rosa Emilia Rodriguez-Velez, United States Attorney, Nelson Pérez-
Sosa, Assistant United States Attorney, Chief, Appellate Division
and Luke Cass, Assistant United States Attorney, United States
Attorney's Office, were on brief, for appellee.
December 9, 2011
*
Of the Sixth Circuit, sitting by designation.
HOWARD, Circuit Judge. Defendant-appellant Cruz Roberto
Ramos-González ("Ramos") appeals his conviction for possession with
intent to distribute in excess of 500 grams of cocaine. See 21
U.S.C. §§ 841(a)(1), 841(b)(1)(B). Among other claims of error,
Ramos contends that his Sixth Amendment right to confrontation was
violated when the district court allowed a forensic chemist to
testify regarding the results of a drug analysis that he did not
conduct. Recent Confrontation Clause jurisprudence compels us to
agree. For the reasons set forth below, we vacate the conviction
and remand for a new trial consistent with this decision.
I. Background
In July 2002, while on routine traffic patrol in Caguas,
Puerto Rico, Transit Police Officers Wanda Vélez-Mojica ("Vélez")
and Javier Reyes-Flores ("Reyes") attempted to stop a pickup truck
with unlawfully tinted windows. The driver refused to yield, and
a chase ensued. Although the officers were able to forcibly stop
the vehicle, the driver fled on foot and managed to elude capture.
Upon closer inspection of the abandoned truck's interior, Vélez
identified two plastic-wrapped blocks of a substance that she
believed to be drugs, and the blocks were taken to the Puerto Rico
Transit Police Station in Caguas ("Caguas station") for analysis.
At the Caguas station, an agent from the Drug and
Narcotics Division, Juan Santana Rodriguez, conducted a field test
of the blocks. Neither Vélez nor Reyes participated in the field
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test, and there is no evidence that it was observed by any other
officer. The two blocks were subsequently transferred to the
Puerto Rico Forensic Science Institute ("the Institute"), where
they purportedly tested positive for cocaine.
The Institute chemist who analyzed the seized substance,
José Borrero, was initially listed as a prosecution witness;
however, due to mental illness and related treatment, he was
unavailable to testify regarding his analysis. Thus, three days
before the trial commenced, the government amended its witness list
to substitute Kelvin Morales-Colón ("Morales"), another chemist at
the Institute, for Borrero. Despite the substitution, the witness
description remained unchanged, identifying Morales as an expert
who would testify "[b]ased on his specialized training and
experience in the examination and analysis of controlled substances
. . . including the methodology used to examine the [drugs seized
from the pickup], and the conclusions reached based on his
expertise and examination of the substances."
At trial, neither Vélez nor Reyes testified definitively
as to the contents of the blocks. Vélez, who was at the Caguas
station but not in the room when the blocks were analyzed, stated
that she "believe[d]" they tested positive for cocaine. Reyes's
only testimony that the seized blocks were cocaine was his 2002
statement memorializing the incident, which he read into the
record. In the statement, he reported that Rodriguez had performed
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a field test on the evidence which yielded a positive result for
cocaine. Reyes did not testify, however, that he was present when
the field test was performed, and Rodriguez himself did not testify
at trial.
The government then called Morales, as its expert
witness, to testify regarding the composition of the seized
substance. After outlining the Institute's intake and chain of
custody procedures, Morales began to discuss the results of
Borrero's test. Defense counsel objected on the basis that Morales
had no personal knowledge of the underlying analysis, but the trial
court determined that, based on Morales's experience and
familiarity with official procedure1, he should be allowed to
testify as to the veracity of this particular test. Morales in
fact had no involvement in testing the seized substance, and was no
longer working in Borrero's department when the testing occurred.
Morales confirmed that the evidence envelope entered by
the government bore the signature of his colleague José Borrero,
which he recognized from their years of working together. Based on
the envelope's unique number, Morales explained that the analyzed
substance was that which had been seized by Reyes and delivered to
the Institute by Rodriguez, and that it was evidence in a matter
1
At the time of his testimony, Morales had been employed as a
chemist with the Institute for eight years. He worked for six
years in the controlled substances division and in 2007 moved to
forensic chemistry.
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involving Ramos. He verified that the information on the evidence
envelope matched the results reported in Borrero's certificate of
analysis, and when questioned about those results, provided the
following testimony:
PROSECUTOR: Do you know the results of -- I'm
sorry. Looking at the envelope here, can you
say what are the results of this test that was
conducted?
MORALES: Both bricks were positive for
cocaine, and had a combined weight of 2,116
grams, including its wrapping in the plastic.
No further evidence was introduced at trial to prove that the
blocks seized from the truck contained cocaine.
Ramos was ultimately convicted by a jury and sentenced to
327 months in prison. This timely appeal ensued.
II. Analysis
A. Standard of Review
We first address the appropriate standard of review for
the Sixth Amendment claim. The government argues that because
Ramos did not specifically invoke the Sixth Amendment in his
objection, he failed to preserve a cognizable Confrontation Clause
challenge. See United States v. Mercado, 412 F.3d 243, 247 (1st
Cir. 2005) ("[A]n objection on one ground does not preserve
appellate review of a different ground."). Accordingly, the
government contends that the district court's ruling should be
reviewed for plain error. See United States v. Ziskind, 491 F.3d
10, 14 (1st Cir. 2007). We disagree. Defense counsel alerted both
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the court and the government to the basis of his objection,
asserting:
I originally thought [Morales] was the chemist
who conducted the analysis of these controlled
substances, but I believe [he is] not. It was
Mr. Borrero. So I object to the fact that he
has no personal knowledge of the test being
conducted.
(emphasis added). In context, it was clear that counsel was
objecting to the inability to confront the declarant. See United
States v. Cabrera-Rivera, 583 F.3d 26, 36 (1st Cir. 2009). His
precise language, which may best be understood as a "short-hand
reference to an objection on confrontation grounds," sufficiently
raised the Sixth Amendment issue, and we therefore review the
challenge de novo. Id. If Ramos's Sixth Amendment rights have
been violated, his conviction must be vacated unless the government
demonstrates that the error was harmless beyond a reasonable doubt.
See id. (citing United States v. Earle, 488 F.3d 537, 545 (1st Cir.
2007)).
B. Confrontation Clause Challenge
Ramos contends that Morales's testimony regarding the
substance of Borrero's report was barred by the Sixth Amendment, as
construed in Crawford v. Washington, 541 U.S. 36 (2004), and
Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009). Given the
evolving foundation upon which this claim rests, we first review
briefly the current state of the Supreme Court's Confrontation
Clause jurisprudence.
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The Sixth Amendment guarantees that "[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him . . . ." U.S. Const.
amend. VI. In Crawford, which effected a shift in Confrontation
Clause doctrine, the Supreme Court established a new constitutional
baseline: admitting "testimonial" statements2 of a witness not
present at trial comports with the Sixth Amendment "only where the
declarant is unavailable, and . . . the defendant has had a prior
opportunity to cross-examine [the declarant]." 541 U.S. at 59.
Subsequently, in Melendez-Diaz, the Court held that certificates of
analysis, like the report prepared by Borrero here, are
appropriately classified as testimonial statements for purposes of
the Sixth Amendment. 129 S. Ct. at 2532. Thus, the admission of
such a report, for the truth of its contents, necessitates
accompanying live testimony by a competent witness. Id.
In a decision which post-dates the argument in this case,
the Court further clarified in Bullcoming v. New Mexico, 131 S. Ct.
2705 (2011), that where a certified forensic lab report is
introduced as substantive evidence, the surrogate testimony of "a
scientist who did not sign the certification or perform or observe
2
A statement ranks as "testimonial" where it has a "primary
purpose of establishing or proving past events potentially relevant
to later criminal prosecution." Bullcoming v. New Mexico, 131 S.
Ct. 2705, 2714 n.6 (2011) (internal quotation marks omitted); see
also Nardi v. Pepe, ___ F.3d ___, 2011 WL 5840286, at *4 (1st Cir.
2011).
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the test reported in the certification" does not satisfy the
accused's right to confrontation. Id. at 2710. Thus, where a
testimonial certified forensic lab report is offered for its truth
as evidence in a criminal prosecution, the accused has at least the
right to confront the scientist who performed, observed, or
supervised the analysis.
These Supreme Court cases are instructive, but they do
not squarely address an issue that must be explored in this case:
the extent to which the Sixth Amendment permits an expert witness
to disclose the substance of a previously unadmitted forensic lab
report that he did not draft. See Bullcoming, 131 S. Ct. at 2722
(Sotomayor, J., concurring) ("We would face a different question if
asked to determine the constitutionality of allowing an expert
witness to discuss others' testimonial statements if the . . .
statements were not themselves admitted as evidence."). Indeed,
the Court has granted certiorari in People v. Williams, 238 Ill.2d
125, 939 N.E.2d 268 (Ill. 2010), cert. granted, 131 S. Ct. 3090
(U.S. June 28, 2011) (No. 10-8505), to consider a version of this
question. See id. (considering whether the disclosure of the
substance of a forensic lab report, through an expert witness who
took no part in the analysis, violates the Confrontation Clause).
It is within this developing framework that we examine the case at
bar.
-8-
The government argues primarily that, unlike in Melendez-
Diaz, Morales's testimony constituted permissible expert review of
Borrero's report, which was itself never actually offered as
evidence. See Fed. R. Evid. 703 (explaining that facts or data of
a type upon which experts in the field would reasonably rely in
forming an opinion need not be admissible in order for the expert's
opinion based on the facts and data to be admitted). Absent
further clarification from the Court, the reconciliation of
Crawford, Melendez-Diaz, and Bullcoming -- which forbid the
introduction of testimonial hearsay as evidence in itself -- with
Rule 703, which permits expert reliance on otherwise inadmissible
testimonial hearsay, will necessarily involve a case-by-case
assessment as to the quality and quantity of the expert's reliance.
See United States v. McGhee, 627 F.3d 454, 460 (1st Cir. 2010).
More specifically, the assessment is one of degree.
Where an expert witness employs her training and experience to
forge an independent conclusion, albeit on the basis of
inadmissible evidence, the likelihood of a Sixth Amendment
infraction is minimal. See United States v. De La Cruz, 514 F.3d
121, 134 (1st Cir. 2008) (holding that the Confrontation Clause
does not limit experts offering their own opinion regardless of the
independent admissibility of the material relied upon); see also
Bullcoming, 131 S. Ct. at 2722 (Sotomayor, J., concurring) ("[T]his
is not a case in which an expert witness was asked for his
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independent opinion about underlying testimonial reports that were
not themselves admitted into evidence."). Where an expert acts
merely as a well-credentialed conduit for testimonial hearsay,
however, the cases hold that her testimony violates a criminal
defendant's right to confrontation. See, e.g., United States v.
Ayala, 601 F.3d 256, 275 (4th Cir. 2010) ("[Where] the expert is,
in essence, . . . merely acting as a transmitter for testimonial
hearsay," there is likely a Crawford violation); United States v.
Johnson, 587 F.3d 625, 635 (4th Cir. 2009) (same); United States v.
Lombardozzi, 491 F.3d 61, 72 (2d Cir. 2007) ("[T]he admission of
[the expert's] testimony was error . . . if he communicated out-of-
court testimonial statements . . . directly to the jury in the
guise of an expert opinion."). In this case, we need not wade too
deeply into the thicket, because the testimony at issue here does
not reside in the middle ground.
The government is hard-pressed to paint Morales's
testimony as anything other than a recitation of Borrero's report.
On direct examination, the prosecutor asked Morales to "say what
are the results of the test," and he did exactly that, responding
"[b]oth bricks were positive for cocaine." This colloquy leaves
little room for interpretation. Morales was never asked, and
consequently he did not provide, his independent expert opinion as
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to the nature of the substance in question.3 Instead, he simply
parroted the conclusion of Borrero's report. Morales's testimony
amounted to no more than the prohibited transmission of testimonial
hearsay. While the interplay between the use of expert testimony
and the Confrontation Clause will undoubtedly require further
explication, the government cannot meet its Sixth Amendment
obligations by relying on Rule 703 in the manner that it was
employed here.
As an alternative basis for admissibility, the government
points to language from Melendez-Diaz to argue that "it is not the
case[] that anyone whose testimony may be relevant in establishing
the chain of custody, authenticity of the sample, or accuracy of
the testing device, must appear in person . . . ." 129 S. Ct. at
2532 n.1. This argument misses the mark. Ramos does not contest
the prosecution's use of Morales to establish the chain of custody
or the authenticity of the sample; rather, he challenges the use of
Morales to channel Borrero's testimonial statement that the
substance was cocaine. Although Morales was intimately familiar
with the Institute's policies and procedures, knew Borrero
personally, and was likely confident in the accuracy of the test
results, the "obvious reliability of a testimonial statement does
not dispense with the Confrontation Clause." Bullcoming, 131 S.
3
The government acknowledged at oral argument that Morales was
never asked to give his independent opinion as to the nature of the
substance.
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Ct. at 2715 (internal quotation omitted). The Sixth Amendment
"commands, not that evidence be reliable, but that reliability be
assessed . . . in the crucible of cross-examination." Crawford,
541 U.S. at 61.
Reciting the conclusion of Borrero's report into the
record raised a host of concerns, to which Morales was ill-equipped
to reply. For example, defense counsel could not effectively query
Morales about whether any circumstance or condition affected the
integrity of the sample or the validity of the analysis, and what
test and testing process Borrero employed. See Bullcoming, 131 S.
Ct. at 2714-15. Nor could defense counsel, through Morales,
"expose any lapses or lies on [Borrero's] part." Id. Perhaps more
significantly, as in Bullcoming, Morales knew relatively little of
the severity of Borrero's mental illness, or the extent to which it
may have affected the quality of his work. See id. Such issues
were grist for cross-examination; the failure to provide Ramos with
that opportunity thus violated his right of confrontation.
C. Harmlessness of the Error
The government argues that any Sixth Amendment error was
harmless beyond a reasonable doubt. See Cabrera-Rivera, 583 F.3d
at 36 (citing Earle, 488 F.3d at 545). In evaluating harmlessness,
we consider several factors, including whether the challenged
statements were central to the prosecution's case; whether the
statements were merely cumulative of other, properly admitted
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evidence; the strength of corroborating or contradicting evidence;
the extent to which cross-examination was permitted; and the
overall strength of the case. Earle, 488 F.3d at 546.
The harmlessness determination in this case depends
principally on whether the information disclosed by Morales was
merely cumulative of the testimony offered by Officers Reyes and
Vélez. In so arguing, the government asserts that "[a]n officer is
permitted to express his opinion that a field tested substance is
cocaine," see United States v. Paiva, 892 F.2d 148, 160 (1st Cir.
1989), and that scientific analysis and expert testimony are not
necessary to prove the illicit nature of a substance, United States
v. Valencia-Lucena, 925 F.2d 506, 512 (1st Cir. 1991). Such
testimony has been deemed adequate to establish the composition of
an allegedly controlled substance, however, only where the witness
was found to be reliable because of her unique familiarity with the
drugs in question.
For example, in Valencia-Lucena, we held that the
"[i]dentification of a substance as a drug may be based upon the
opinion of a knowledgeable lay person," where that lay person was
a confidential informant who was formerly one of the drug-
traffickers, and who had both intimate knowledge of the alleged
conspiracy to distribute and prior direct contact with the drugs.
925 F.2d at 512. Similarly, in Paiva, we found that the district
court did not abuse its discretion in permitting testimony by a
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long-term drug addict that the substance she had seen and tasted
was cocaine. 892 F.2d at 160-62.
By contrast, the indicia of reliability here were far
less substantial. Neither Vélez nor Reyes testified as to the
nature of the substance based on their experience or intimate
knowledge. The sum of their testimony consisted of Vélez's
statement that the blocks "appeared to be a controlled substance,"
and the officers' recollections that Rodriguez's preliminary field
test -- for which they were not present -- showed the presence of
cocaine. This is not the type of specially reliable lay testimony
that was proffered in Valencia-Lucena or Paiva, and it does not
meet the stringent requirement of proof beyond a reasonable doubt.
Further, to the extent that the government argues that
there was additional corroborating evidence, that evidence does not
go to the central issue. The fact that several law enforcement
agents identified Ramos as the truck's operator, and the presence
inside the truck of various identifiers bearing Ramos's name, go to
the question of whether Ramos was in fact the driver of the truck,
and not whether, as Morales concluded, the substance in the truck
was cocaine.
Accordingly, Morales's testimony was neither cumulative
of nor sufficiently corroborated by alternative evidence, and it
comprised the only compelling basis for the jury to conclude a
critical element of the government's case - that the substance
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seized from the truck was cocaine. We cannot conclude that the
presence of cocaine would have been proved without the testimony of
Morales, and therefore the admission of his testimony was not
harmless beyond a reasonable doubt.
III. Conclusion
Although Ramos presses additional claims of error, we
need go no further. For the reasons set forth above, we vacate the
judgment of conviction and remand to the trial court for further
proceedings. It is so ordered.
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