United States Court of Appeals For the First Circuit Volume I of II

No. 01-1647

UNITED STATES OF AMERICA,

Appellee,

v.

José Rodriguez-Marrero,

Defendant, Appellant.

No. 02-1462

UNITED STATES OF AMERICA,

Appellee,

v.

Omar F. Genao-Sanchez,

Defendant, Appellant.

No. 02-1707

UNITED STATES OF AMERICA,

Appellee,

v.

Luis Roldan-Cortes,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. José A. Fusté, U.S. District Judge]

Before

Selya, Circuit Judge, Coffin, Senior Circuit Judge, and Lipez, Circuit Judge.

Lydia Lizarribar-Masini for appellant Omar Genao-Sanchez. Raymond L. Sanchez Maceira on brief for appellant José Rodriguez-Marrero. Linda George for appellant Luis Roldan-Cortes. Thomas F. Klumper, Assistant United States Attorney, with whom H.S. Garcia, United States Attorney, and Sonia I. Torres, Assistant United States Attorney, were on brief for appellee.

November 5, 2004 LIPEZ, Circuit Judge. The three defendants in this drug

conspiracy case played key roles in a smuggling ring that imported

large amounts of cocaine and marijuana into Puerto Rico between

1992 and 1996. After a trial that spanned nearly four weeks and

involved more than forty witnesses for the government, a jury found

each defendant guilty of a series of crimes, including the drug

conspiracy and aiding and abetting murder. The district court

sentenced each defendant to multiple life sentences.

The defendants raise a number of challenges to their

convictions. In the end, we find that one challenge is meritorious

-- the argument of Omar Genao-Sanchez that the district court erred

in admitting testimonial hearsay against him in violation of the

recent Supreme Court decision in Crawford v. Washington,

(2004), a case decided after the completion of this trial.

Although we affirm Genao-Sanchez's drug conspiracy conviction, we

conclude that the erroneous admission of the hearsay testimony was

not harmless with respect to his convictions for conspiracy to

commit murder and for aiding and abetting murder. Accordingly, we

vacate those convictions. We affirm the convictions and sentences

of the other defendants.

I.

We present facts here in the light most favorable to the

verdict to convey the background of the case. See United States v.

Reeder,

(1st Cir. 1999). We will provide

-3- additional facts where they are pertinent to the legal analysis of

specific issues.

A. The Conspiracy

As noted, the defendants were members of a drug

conspiracy that smuggled large amounts of cocaine and marijuana

from South America into southwestern Puerto Rico for itself and

other organizations. The drugs were dropped from airplanes at sea

and retrieved by the defendants or transferred directly by boat

from the defendants' foreign suppliers. The conspirators used a

broad array of radios, global positioning system (GPS) receivers,

night vision glasses, police scanners, modified cellphones and

powerful speedboats to protect their shipments. They also

stationed lookouts at various points on the water and near an

airport used by the United States Customs Service to protect the

loads from raids by law enforcement and rival drug gangs.

After the defendants brought the drugs on shore, the

drugs were shipped by truck either to a secure storage location

(frequently one of the conspirators' farms) or directly to the

individual or organization who had hired the defendants. The

individual conspirators received cash or a portion of the drug

shipment as payment for their participation, and they distributed

the drugs they received to local dealers at drug points throughout

the area.

-4- B. The Co-Conspirators

Raul Santodomingo-Romero ("Santodomingo") led the drug

organization until he was arrested on money laundering charges in

1994; his second-in-command, Victor M. Valle-Lassalle, a/k/a

"Manolo" ("Valle-Lassalle"), then took over.1 Defendant-appellant

Luis Roldan-Cortes, a/k/a "Wisi" ("Roldan"), was Valle-Lassalle's

right hand man and the godfather to his daughter. The two owned a

drug distribution point, giving them the exclusive right to

distribute drugs in the Ducos housing project in Aguadilla.

Although Valle-Lassalle eventually ended this partnership because

he thought that Roldan was unfairly excluding him from some of the

side deals that Roldan was arranging, they continued to cooperate

together in their smuggling venture. Roldan negotiated at least

one drug shipment in the Dominican Republic and participated in the

execution of a number of others. His specific responsibilities

included loading and unloading and captaining the drug boats,

coordinating "security" for the shipments, and inventorying and

selling drugs to small distributors. He also helped to arrange the

murder of a government informant, James Martin-Rodriguez, a/k/a

"Kiri" ("Martin"), who was a member of the conspiracy until he

began cooperating with federal investigators.

1 We have included a roster of individuals important for an understanding of this case in the Appendix to this opinion. We refer to the individuals in this case according to the naming scheme that was adopted by the government in its brief.

-5- Defendant-appellant Omar Genao-Sanchez, a/k/a "Omi"

("Genao"), was a drug courier for one of the conspirators, David

Rafael Ramos-Rivera, a/k/a "Pecas" ("Ramos"), when he (Genao) was

sixteen years old. He later became a member of the conspiracy

himself after meeting the other members at Santodomingo's farm.

Genao attended meetings at which Valle-Lassalle negotiated drug

shipments, helped to bring loads to shore, and, according to the

government, participated in the murder of Carlos Roberto Rodriguez

Torres, a/k/a "Robert Caballo" ("Caballo"). Although Caballo was

an active member of the conspiracy, having participated in

smuggling operations, Valle-Lassalle decided to kill him when

Caballo threatened to tell members of a Colombian drug cartel that

Valle-Lassalle had stolen cocaine from them.

José Rodriguez-Marrero, a/k/a "Zurdo" ("Rodriguez"), the

last of the three appellants, joined the conspiracy when Valle-

Lassalle offered to let him participate in some drug shipments if

he helped to murder Edward Llaurador Rodriguez ("Llaurador"),

another co-conspirator turned government informant. Although the

government did not introduce evidence that Rodriguez participated

in any shipments, its witnesses testified that Rodriguez was

present when Valle-Lassalle negotiated shipments and that he would

have participated in two shipments if the police had not

forestalled them. The first of these shipments was supposed to be

a two thousand pound load of cocaine that Valle-Lassalle negotiated

-6- in May 1997 with another smuggler, Angela Ayala. This shipment was

canceled when Ayala was arrested. The second involved six hundred

kilograms of cocaine that were supposed to have been smuggled on

behalf of another smuggler, Henry Pamias, a/k/a "Macho from Cataño"

("Pamias"). That shipment was canceled because Valle-Lassalle was

arrested on weapons charges.

Javier E. Soto-Alarcon, a/k/a "Chester" ("Soto"), was a

mid-level leader in the conspiracy who joined the drug gang after

he started dating Valle-Lassalle's sister. Soto participated in a

number of drug loads and in Llaurador's murder. After Soto's wife

(he had since ended his relationship with Valle-Lassalle's sister)

was shot in a drug-related attack, Soto decided to turn himself in

to the authorities. He agreed to cooperate with the government,

allowing it to record his conversations, helping government agents

to infiltrate the organization, and testifying against the others

at trial.

Ramos was a member of the conspiracy before he was

arrested and decided to become a government informant. He helped

to smuggle a number of large loads of marijuana and cocaine and

sold some of the cocaine at a drug point in the Montana housing

project in Aguadilla. He also participated in Martin's murder.

Other members of the drug conspiracy included José

Hernandez-Jimenez, a/k/a "Chelo" ("Hernandez"), who was murdered by

a rival drug gang, and Nicholas Peña Gonzalez ("Peña") and Anibal

-7- Pagan-Cerezo, a/k/a "El Cojo" ("Pagan"), who were indicted along

with the defendants here and pled guilty.

C. Murders Undertaken in Furtherance of the Conspiracy

The drug gang protected its distribution empire with

force, killing or seriously wounding suspected informants and rival

gang members. Three of those murders played important roles in the

conspiracy trial because they were charged as substantive crimes

and as overt acts in furtherance of the drug conspiracy.

1. Martin's Murder

On November 16, 1992, Martin was arrested with fifteen

bales of cocaine belonging to the drug ring. This was the second

time that he was arrested for a drug crime, and he agreed to

cooperate with the United States Customs Service. Suspecting that

Martin had become an informant, Santodomingo and Valle-Lassalle

decided to have him murdered in a parking lot at the Ducos housing

project. On May 20, 1993, after receiving a phone call from Roldan

alerting him to Martin's arrival at the scene, Santodomingo dropped

Ramos off at the housing project, where Ramos joined Roldan and

Pagan. Roldan identified Martin as the intended murder victim, and

told Ramos and Pagan that Martin was at the housing project that

day because he was expecting to pick up some money owed to him for

drugs. Martin approached the group, and Ramos and Pagan walked off

to a corner of the parking lot. After speaking with Roldan for a

short while, Martin walked back to his automobile. As he was about

-8- to put the keys in the door, Pagan walked up and shot him three

times. Ramos then joined the attack, and the two shot Martin until

Pagan ran out of bullets. The coroner's report stated that Martin

had seventeen bullet wounds in his body.

2. Caballo's Murder

In February, 1996, five members of the drug organization

stole approximately thirty kilograms of cocaine that they were

smuggling into Puerto Rico on behalf of a Colombian drug operation.

Believing that Caballo had threatened to inform the Colombians

about the theft, Valle-Lassalle arranged to have him killed.

According to the government, Genao and another member of the drug

ring, Nicholas Peña Gonzalez, picked Caballo up at his house on

July 15, 1996, with help from Llaurador. Peña shot Caballo in a

remote area near Yauco, Puerto Rico. The group then threw

Caballo's body in the back of his truck. They planned to drive the

truck to Valle-Lassalle's farm to dismember and dispose of the body

(and to disassemble the truck) when the truck became stuck in a

muddy ditch and they were forced to abandon it on the side of the

road. As they were abandoning the truck, Caballo tried to get up

and asked Peña why he shot him. Peña answered, "Because you're a

mother fucker," and shot him two more times. The police found the

truck and Caballo's body the next morning.

-9- 3. Llaurador's Murder

Later that month, Llaurador told local authorities in

Ponce about Caballo's murder, and provided sworn statements to the

prosecutor regarding the murder on July 31 and September 13 of that

year (1996). He also became a confidential informant for the

federal Drug Enforcement Administration ("DEA") on September 3,

1996. The local police arrested Genao and Valle-Lassalle for

Caballo's murder based on Llaurador's statements. They issued a

warrant for Peña's arrest, but he fled before they could apprehend

him. The criminal complaint, which was given to both Genao and

Valle-Lassalle when they were arrested, identified Llaurador as an

informant.

Valle-Lassalle was released on bail subsequent to his

arrest. Having seen Llaurador's name on the criminal complaint,

Valle-Lassalle knew that Llaurador had “snitched" to the police

about Caballo's murder. Telling Soto that Llaurador would likely

"snitch" on all of them, he recruited Soto, Rodriguez, and two

other members of the conspiracy to find Llaurador and murder him.

The men found him on October 13, 1996 and bound him with wire.

Rodriguez proceeded to behead Llaurador with a machete while he was

still alive. They dismembered his body, placed the various parts

in plastic garbage bags, and threw the bags over a cliff at an

abandoned dump site. Valle-Lassalle watched the murder and told

-10- his co-conspirators that if they told anyone about it, they would

meet the same fate. He promised to repay Rodriguez for murdering

Llaurador by allowing him to participate in one of the upcoming

smuggling operations.

D. Arrests and District Court Proceedings

On December 17, 1997, the government unsealed a two count

indictment against Genao, Rodriguez, Valle-Lassalle, Peña, and four

others. Roldan was not charged in that initial indictment. The

government obtained a twelve count second superseding indictment on

July 6, 2000 against Genao, Rodriguez, Valle-Lassalle, Peña,

Roldan, Pagan, and six others.2 The twelve defendants were charged

with: (1) conspiracy to possess with the intent to distribute more

than five kilograms of cocaine and multi-hundred pound quantities

of marijuana; (2) conspiracy to commit firearms murder in relation

to a drug trafficking offense (Caballo); (3) aiding and abetting

firearms murder in relation to a drug trafficking offense

(Caballo); (4) aiding and abetting the murder of a witness or

informant (Llaurador); (5) aiding and abetting murder while

2 The government had previously obtained a six count first superseding indictment on July 15, 1998, charging Valle-Lassalle, Rodriguez, Peña, Genao, Pamias, Santodomingo, and four others with conspiracy to possess with intent to distribute more than five kilograms of cocaine and multi-hundred pound quantities of marijuana; conspiracy to commit firearms murder in relation to a drug trafficking offense (Caballo); firearms murder in relation to a drug trafficking offense (Caballo); murder of a witness or informant (Llaurador); murder while engaging in a drug trafficking offense (Llaurador); and witness tampering.

-11- engaging in a drug trafficking offense (Llaurador); (6) witness

tampering (Soto); (7) aiding and abetting firearms murder in

relation to a drug trafficking offense (Martin); (8) aiding and

abetting the murder of a witness or informant (Martin); (9) aiding

and abetting murder while engaging in a drug trafficking offense

(Martin); (10) aiding and abetting solicitation of a crime of

violence; (11) misprision of felony; and (12) possession with

intent to distribute in excess of five kilograms of cocaine. The

appellants here were charged as follows:

Count Summary Appellant(s) 1 The drug conspiracy Genao, Rodriguez, and Roldan 2 Conspiracy to commit firearms murder Genao in furtherance of a drug crime (Caballo) 3 Aiding and abetting firearms murder Genao in furtherance of a drug crime (Caballo) 4 Aiding and abetting murder of a Rodriguez witness (Llaurador) 5 Aiding and abetting murder in Rodriguez furtherance of a drug crime (Llaurador) 7 Aiding and abetting firearms murder Roldan in furtherance of a drug crime (Martin) 8 Aiding and abetting murder of a Roldan witness (Martin) 9 Aiding and abetting murder while Roldan engaging in a drug crime (Martin)

-12- After having been arraigned on the first indictment on

December 22, 1997, Rodriguez was arraigned on the second

superseding indictment on July 18, 2000. Similarly, Genao was

arraigned on the first superseding indictment on December 27, 1999

and the second on July 20, 2000. Roldan was only indicted once, on

July 18, 2000. The government certified the defendants as being

eligible for the death penalty shortly after their arraignment and

maintained that position until the day before the trial was

scheduled to begin.

E. The Trial

Of the twelve indicted defendants, only the three

appellants here pled not guilty and proceeded to trial. The trial

began on September 7, 2000. Roldan's and Genao's attorneys

repeatedly informed the court on the first day of trial that they

were unprepared to try the case, and both requested continuances.

The court denied their motions.

The government presented testimony from more than forty

witnesses, including Commonwealth investigators, police officers,

federal agents, eyewitnesses, and technical experts. The core of

its case was built by two co-conspirators and cooperating

witnesses, Soto and Ramos, each of whom testified for the greater

part of a week. Soto began his testimony with a detailed first-

hand account of Llaurador's murder, highlighting Rodriguez's

participation in the killing and Valle-Lassalle's promise to reward

-13- Rodriguez for his participation. Soto then recounted how he joined

the conspiracy and the manner in which he met each of the co-

conspirators. The first time that he visited a farm owned by

Valle-Lassalle, he helped to inventory six to seven thousand pounds

of marijuana. He also described the planning and execution of the

organization's narcotics shipments and the roles played by Genao,

Rodriguez, and Roldan. He provided the details regarding a seven

hundred kilogram load of cocaine that the group smuggled in May or

June 1994, and discussed a trip that he took to Ayala's house in

the summer of 1997 with Valle-Lassalle, Rodriguez, and Hernandez to

negotiate a shipment of two thousand kilograms of cocaine. Valle-

Lassalle negotiated with Ayala while Rodriguez and Hernandez

listened to music and played pool. Ayala was arrested before that

shipment could take place, but Valle-Lassalle negotiated another

shipment later that summer. The second shipment was interrupted

when Valle-Lassalle was arrested on Commonwealth weapons charges

stemming from a shootout that he had with members of a rival drug

gang. Soto also briefly recounted Valle-Lassalle's explanation of

Caballo's murder. Finally, he described how he became a government

informant and the terms of his plea agreement.

Ramos began his testimony by providing a first-person

account of Martin's murder. He then named some of the key members

of the conspiracy, explained how he knew them, and described their

roles in the organization. He provided details on a number of the

-14- cocaine and marijuana shipments that he helped to smuggle. These

included a six to seven thousand pound shipment of marijuana in the

summer of 1993, which Roldan helped to inventory; six hundred

kilogram shipments in late December 1993 and late December 1994,

which Roldan helped to transport; a nine hundred to one thousand

kilogram shipment in the fall of 1995 on behalf of Ayala, which

Genao helped to transport; and a shipment of cocaine in February

1996, which Genao also helped to transport. Caballo later learned

that Valle-Lassalle had stolen thirty kilograms of cocaine from

this shipment. Ramos described his unsuccessful efforts to prevent

Valle-Lassalle from killing Caballo to cover up that theft and

essentially repeated Genao's description of Caballo's murder. He

noted that after Genao was arrested for Caballo's murder, Genao

wrote to him requesting a loan for bail money. Ramos forwarded

that request to Valle-Lassalle who instructed Ramos to tell Genao

not to worry because he would be out soon. Nine days later,

Llaurador -- the chief witness against Genao in the murder case --

was killed, and Genao was released for lack of evidence. Valle-

Lassalle told Ramos that "he had taken care of the problem because

the guy who was snitching had been killed."

Ramos also testified about the methods of drug

distribution that he employed. He managed the drug point in the

Montana housing project and sold the drugs that he bought or

received as payment from Valle-Lassalle. He said that he

-15- frequently used Genao as a courier to pick up drugs for Ramos to

sell. Finally, Ramos testified that he was arrested for attempting

to introduce drugs into the country on August 24, 1998. He pled

guilty and began cooperating in approximately April 1999.

On October 10, 2000, the jury convicted the three

defendants on all counts. On March 28, 2001, the district court

sentenced Rodriguez to two life sentences for his two murder

convictions, aiding and abetting murder of a witness (Llaurador)

and aiding and abetting murder in furtherance of a drug crime

(Llaurador). See U.S.S.G. § 2A1.1, cmt. 1 ("The Commission has

concluded that in the absence of capital punishment, life

imprisonment is the appropriate punishment for premeditated

killing."). The court applied the murder cross reference to his

drug conspiracy conviction to sentence him to life in prison on

that conviction as well. See U.S.S.G. § 2D1.1(d)(1) (instructing

courts to apply the first degree murder sentencing guideline when

considering the appropriate sentencing range for a drug conviction

if a victim was killed under circumstances that would constitute

murder under

); see United States v.

Reyes-Echevarria,

(1st Cir. 2003) (upholding the

sentencing court's application of the murder cross reference to the

defendant's drug conspiracy conviction after the sentencing judge

concluded by a preponderance of the evidence that the defendant had

murdered a rival drug dealer).

-16- On March 18, 2002, the court sentenced Genao to two life

sentences for his two murder convictions, conspiracy to commit

firearms murder in furtherance of a drug crime (Caballo) and aiding

and abetting firearms murder in furtherance of a drug crime

(Caballo), and applied the murder cross reference to his drug

conspiracy conviction, sentencing him to a total of three life

sentences. On the same day, the court sentenced Roldan to three

life sentences for his three murder convictions, aiding and

abetting firearms murder in furtherance of a drug crime (Martin),

aiding and abetting murder of a witness (Martin), and aiding and

abetting murder while engaging in a drug crime (Martin). It also

applied the murder cross reference to Roldan's drug conspiracy

conviction, resulting in a total of four life sentences. Genao and

Roldan filed multiple motions for new trials based on newly-

discovered evidence, which the district court denied.

II.

A. Rodriguez's Claims

1. Specificity of the Indictment

Arguing that count four of the second superseding

indictment (murder of a witness) did not provide sufficient details

regarding the federal nexus of Llaurador's murder, Rodriguez argues

that his conviction should be vacated. The Federal Rules of

Criminal Procedure generally require defendants to raise objections

to indictments prior to trial. See Fed. R. Crim. P. 12(b)(3)(B)

-17- (stating that "a motion alleging a defect in the indictment or

information" "must be raised before trial"). Failure to do so

constitutes waiver. See Fed. R. Crim. P. 12(e) ("A party waives

any Rule 12(b)(3) defense, objection, or request not raised by the

deadline the court sets under Rule 12(c) or by any extension the

court provides."). Although Rule 12 creates exceptions for

objections challenging a court's jurisdiction and those claiming

that the indictment did not actually charge the crime for which the

defendant was tried, Rodriguez's objection to the specificity of

count four does not fall under these exceptions. See United States

v. Crowley,

(2d Cir. 2003). In the absence of

any indication in the record that Rodriguez objected to the

specificity of the indictment before trial, we conclude that he

waived this argument.3

2. Sufficiency of the Evidence

Rodriguez argues that the government failed to introduce

sufficient evidence to support two counts of his conviction, the

drug conspiracy charge (count one) and the aiding and abetting

murder of a witness charge (count four).4 We review a sufficiency

of the evidence claim de novo, "eschewing credibility judgments and

3 While Rule 12(e) allows a reviewing court to grant relief from this waiver for good cause, we see no basis for doing so here. 4 Rodriguez did not challenge the sufficiency of the evidence regarding his conviction on count five, aiding and abetting the murder (of Llaurador) in furtherance of a drug crime.

-18- drawing all reasonable inferences in favor of the verdict, to

ascertain if a rational jury could have found that the government

proved each element of the crime beyond a reasonable doubt."

United States v. Sepulveda,

(1st Cir. 1993)

(citations omitted).

a. Conspiracy

"To prove the elements of the crime of conspiracy, the

Government must show the existence of a conspiracy, the defendant's

knowledge of the conspiracy, and the defendant's voluntary

participation in the conspiracy." United States v. Llinas,

(1st Cir. 2004) (internal quotation marks omitted).

Proof of the defendant's participation in the conspiracy must

include proof that he intended to commit the underlying substantive

offense. Sepulveda,

. "Such proof may consist of

circumstantial evidence, including inferences from surrounding

circumstances, such as acts committed by the defendant that

furthered the conspiracy's purposes. The government need not prove

that a co-conspirator knew all of the details or participated in

all of the objectives of the plan." Llinas,

(internal quotation marks omitted). Since Rodriguez does not

contest the existence of a drug conspiracy, we need only consider

whether the government proved his participation in the conspiracy.

Rodriguez claims that the only evidence linking him to

the drug conspiracy was Soto's testimony that Rodriguez was present

-19- at the May 1997 meeting with Angela Ayala, when she and Valle-

Lassalle negotiated the details of a two thousand kilogram cocaine

shipment. He argues that while he was at her house during the

meeting, he played pool, listened to music, and did not participate

in that meeting.

This argument reflects a highly misleading view of the

evidence adduced at trial. In fact, Soto testified that Valle-

Lassalle offered to allow Rodriguez to participate in this

particular drug smuggling operation if he murdered Llaurador.

Prior to the meeting, Soto told Rodriguez that Rodriguez's share of

that drug shipment could be twenty to thirty thousand dollars, and

Rodriguez remarked that he expected to receive "a good position" in

the drug organization for committing the murder. His claim that he

was innocently playing pool at Ayala's house without knowledge that

a major narcotics deal was being negotiated simply does not

withstand scrutiny. Given this testimony, we have no difficulty

concluding that a jury could have found beyond a reasonable doubt

that Rodriguez was part of the drug conspiracy.

b. Aiding and Abetting Murder of a Witness

Rodriguez also claims that the evidence that the

government introduced to prove that he murdered Llaurador was

insufficient to establish a violation of the Witness Protection

Act, which states:

[W]hoever kills . . . another person, with intent to (A) prevent the attendance or

-20- testimony of any person in an official proceeding [or] . . . (C) prevent the communication by any person to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense . . . shall be punished . . . .

(a)(1). The government argues that Rodriguez

killed Llaurador to prevent him from communicating with authorities

regarding federal offenses.

To establish a crime under the "law enforcement officer"

section of the Act, the government must prove that:

(1) the defendant killed or attempted to kill a person; (2) the defendant was motivated by a desire to prevent the communication between any person and law enforcement authorities concerning the commission or possible commission of an offense; (3) that offense was actually a federal offense; and (4) the defendant believed that the person in (2) above might communicate with the federal authorities.

United States v. Stansfield,

(3d Cir. 1996). The

Act explicitly relieves the government from having to prove that

the defendant suspected that the witness would communicate to

federal, as opposed to state, officials regarding the crime, see

(g) (stating that "[i]n a prosecution for an offense

under this section, no state of mind need be proved with respect to

the circumstance . . . that the law enforcement officer is an

officer or employee of the Federal Government"); therefore, the

fourth prong may be proven, among other ways, by demonstrating that

the underlying offense was a federal offense and that the federal

-21- authorities had begun an investigation prior to the informant's

murder or attempted murder. United States v. Bell,

(3d Cir. 1997).

The government easily met its burden here. Although

Rodriguez repeatedly refers to Caballo's murder as a Commonwealth

offense, the second superseding indictment lists the murder as a

charged offense and identifies it as an overt act in furtherance of

the federal drug conspiracy. The federal government, through the

DEA, had opened an investigation into this conspiracy and had

interviewed Llaurador prior to his murder. Rodriguez's claim that

he did not realize that he was helping to conceal a federal crime

by murdering Llaurador is irrelevant. See United States v.

Applewhaite,

(3d Cir. 1999) ("All that [a

parallel provision in the Witness Protection Act] requires is that

the government establish that the defendants had the intent to

influence an investigation that happened to be federal.").

B. Genao's Claims

1. Newly Discovered Evidence

Genao first complains that the district court should have

granted him a new trial under Fed. R. Crim. P. 33 based on his

post-trial discovery of exculpatory evidence. Rule 33 allows a

court to grant a new trial "if the interest of justice so

requires." Fed. R. Crim. P. 33(a). We will only overturn the

court's refusal to do so upon a showing that it manifestly abused

-22- its discretion. United States v. Josleyn,

(1st

Cir. 2000).

Genao claimed in his Rule 33 motion that two co-

defendants, Peña and Valle-Lassalle, each proffered sworn

statements after the trial claiming that Genao did not participate

in Caballo's murder. He also claimed that a private investigator,

Benny Soto, had interviewed Santodomingo, a leader of the

conspiracy, who had been arrested for money laundering in 1994 and

later pled guilty to drug trafficking charges arising out of the

first superseding indictment in this case. The investigator

reported that Santodomingo would testify that Genao had not been

involved in the drug conspiracy. The district court denied Genao's

motion for a new trial without conducting an evidentiary hearing.

Upon receiving Genao's motion for reconsideration, the court held

a hearing to consider it, and Peña, Valle-Lassalle, and

Santodomingo testified. Citing Genao's lack of diligence in

seeking this evidence prior to trial and the witnesses' lack of

credibility, the court again denied his motion for a new trial.

"A motion for new trial on the basis of newly discovered

evidence will ordinarily not be granted unless the moving party can

demonstrate that: (1) the evidence was unknown or unavailable to

the defendant at the time of trial; (2) failure to learn of the

evidence was not due to lack of diligence by the defendant; (3) the

evidence is material, and not merely cumulative or impeaching; and

-23- (4) it will probably result in an acquittal upon retrial of the

defendant." United States v. Wright,

(1st Cir.

1980). "The defendant must meet all four prongs of the Wright test

in order to succeed on a Rule 33 motion. A defendant's new trial

motion must be denied if he fails to meet any one of these

factors." United States v. Colon-Munoz,

(1st

Cir. 2003) (internal quotation marks omitted).

Peña testified that he was the triggerman in Caballo's

murder and that Genao was not present at the murder scene. In

fact, he testified that he did not meet Genao until the two were

imprisoned together prior to their federal trial. When Genao's

lawyer asked him why he had failed to present this testimony

earlier, he answered:

Well, I was in negotiation [with the government]. I mean, at one point in time, I was thinking of fighting my case, you know, of going to trial in my case, but then I started to think a lot about Genao and the fact that he had nothing to do with [Caballo]'s death. Because I really had never met Genao out in the street at all. I never saw him.

So when I finally made my agreement and I was already sentenced, I said, Well, I'm going to help him out because he really had nothing to do with any of this killing, because I was the one who killed [Caballo], and the ones involved in [Caballo]'s murder, the ones who were there for [Caballo]'s murder, was me and [Llaurador], and we were the only ones who were there at the lake when [Caballo] was killed.

-24- On cross-examination, Peña admitted that, as part of his plea

agreement, he accepted as true and correct the version of facts in

counts one and three of the second superseding indictment, which

stated that Genao participated in Caballo's murder. However, he

claimed that he thought that this affirmation meant that he was

admitting to the accusations in the indictment relating to his own

actions and culpability, not necessarily to the facts and

accusations relating to his co-conspirators.

Valle-Lassalle said that Genao never assisted with any of

the drug loads and that Genao had nothing to do with Caballo's

murder. Even though Genao asked him in jail to say that he was not

guilty, Valle-Lassalle said that he did not come forward with this

evidence earlier because he was awaiting trial. Valle-Lassalle

repeatedly refused to implicate some of his co-conspirators in the

murders and drug smuggling operations, prompting the government to

ask: "It goes against every grain of your being to testify and

implicate anyone that's not a cooperator or a dead person in

criminal conduct; isn't that correct?" Valle-Lassalle answered

simply, "Yes."

Santodomingo's testimony was less detailed. He stated

that he met Genao through Ramos and that Genao did not do any drug

work for him.

We have previously characterized post-sentencing

exculpatory testimony of co-conspirators as being "inherently

-25- suspect." United States v. Montilla-Rivera,

(1st

Cir. 1999). Such witnesses have little to lose by fabricating

stories designed to free their comrades, especially when, as here,

the stories do not run the risk of implicating the witnesses in

other criminal acts.5 United States v. Simmons,

(5th Cir. 1983) ("[O]nce sentence has been imposed on a

co-defendant, '. . . there is very little to deter the . . .

co-defendant from untruthfully swearing out an affidavit in which

he purports to shoulder the entire blame.'") (citation omitted;

ellipses in original). Valle-Lassalle's admission that he was only

willing to inculpate dead people and informants, and the

contradictions between Peña's testimony at the evidentiary hearing

and the facts recounted in his plea agreement, capture the

limitations of the post-trial testimony of all three witnesses

produced at the evidentiary hearing. Having presided at the

lengthy trial of Genao and the co-defendants, and having heard the

testimony of the co-conspirators produced at the hearing on the

motion for a new trial, the district court did not remotely abuse

its discretion in rejecting the argument that the testimony from

Genao's co-conspirators "will probably result in an acquittal upon

5 Santodomingo is serving a 276 month sentence after being indicted in the first superseding indictment and pleading guilty to narcotics trafficking. The record does not identify the crimes to which the other two witnesses pled guilty; however, Valle-Lassalle admitted that he is serving a life sentence and Peña admitted that he is serving a thirty year sentence.

-26- retrial." Wright,

.

2. Confrontation Clause

At trial, the government called Edgar Delgado García, a

Puerto Rico Commonwealth judge who was the local prosecutor when

Llaurador started cooperating with authorities prior to his murder.

Judge Delgado read two sworn statements that Llaurador had given to

the police in the summer of 1996 regarding Caballo's murder. In

the first statement, Llaurador provided a detailed account of the

night of the murder, including the plan that Genao and Peña

developed to trap Caballo; the manner in which they killed him; and

the way in which Caballo's truck got stuck on the side of the road

after the murder. In the second statement, Llaurador explained

that Valle-Lassalle told him that he had given the order for

Caballo's death because Caballo was going to tell the Colombians

about the cocaine theft. Genao objected to the admission of this

hearsay testimony against him immediately before Judge Delgado

testified.

The argument over the admissibility of Llaurador's

statements principally involved the application of the forfeiture

by wrongdoing doctrine,6 which, as embodied in Rule 804(b)(6) of

the Federal Rules of Evidence, creates an exception to the general

6 The government also argued that Llaurador's statements contained sufficient indicia of reliability to be admissible under the catch-all provision in the hearsay rules. See Fed. R. Evid. 807.

-27- prohibition on the admission of hearsay testimony for "statement[s]

offered against a party that has engaged or acquiesced in

wrongdoing that was intended to, and did, procure the

unavailability of the declarant as a witness." Genao claimed that

he was in jail awaiting trial for Caballo's murder when Llaurador

was murdered; therefore, he had nothing to do with the killing.

Noting that Rule 804(b)(6) allows the admission of evidence against

defendants who acquiesced in a hearsay declarant's murder, the

government responded that the mere fact that Genao did not directly

participate in the murder was immaterial. According to the

government, a portion of Ramos's testimony demonstrated that Genao

knew that Llaurador was going to be murdered and that Genao

acquiesced in the murder. Specifically, Ramos had testified that

Genao asked him for bail money when the two were imprisoned; when

Ramos called Valle-Lassalle to tell him about this request, Valle-

Lassalle told him to tell Genao that he should not be worried

because he would be out soon. Nine days later, according to the

government, Llaurador was murdered and Genao was set free.

Therefore, according to the government, Genao acquiesced in

Llaurador's murder. Apparently agreeing with the government's

theory of acquiescence (the court did not elaborate on its ruling),

the court admitted Llaurador's statements to the former

Commonwealth prosecutor as evidence against Genao.

-28- a. Crawford v. Washington

As we recently noted, the Supreme Court's decision in

Crawford v. Washington,

(2004), "changed the legal

landscape for determining whether the admission of certain hearsay

statements violates the accused's right to confront witnesses."7

Horton v. Allen,

(1st Cir. 2004). Overturning

earlier precedent that allowed a court to consider hearsay

testimony against a criminal defendant if that testimony "bore

particularized guarantees of trustworthiness," see, e.g., Ohio v.

Roberts,

(1980), the Crawford Court held that,

absent other grounds for admissibility, the Confrontation Clause

categorically bars the admission of testimonial hearsay unless the

declarant is unavailable and the accused has had a prior

opportunity to cross-examine the declarant. Crawford,

("Where testimonial evidence is at issue . . . the Sixth

Amendment demands what the common law required: unavailability and

a prior opportunity for cross-examination."). Although the Court

left for another day a comprehensive definition of "testimonial"

hearsay, it stated that "[w]hatever else the term covers, it

7 Genao filed a Fed. R. App. P. 28(j) letter, pro se, on March 30, 2004, citing Crawford. The government never filed a Rule 28(j) letter regarding that case. We heard oral argument in this case on March 2, 2004, and Crawford was published on March 8, 2004. Although Crawford was decided after Genao was convicted, we must apply this new precedent in his appeal. See, e.g., Hamling v. United States,

(1974) ("[A] change in the law occurring after a relevant event in a case will be given effect while the case is on direct review.").

-29- applies at a minimum to prior testimony at a preliminary hearing,

before a grand jury, or at a former trial; and to police

interrogations," or other "extrajudicial statements . . . contained

in formalized testimonial materials, such as affidavits,

depositions, prior testimony, or confessions."

(internal

quotation marks omitted).

We conclude that Llaurador's signed confession, presented

under oath to the prosecutor in Puerto Rico, is testimonial hearsay

within the meaning given by the Supreme Court. See, e.g., United

States v. Saget,

(2d Cir. 2004) (discussing the

parameters of "testimonial hearsay" in light of Crawford). Since

Genao did not have the prior opportunity to confront Llaurador

regarding his statements, we conclude that, absent some independent

ground for admissibility, it was a constitutional error for the

court to admit Llaurador's statements against Genao.

b. Forfeiture by Wrongdoing

As noted, the government drew upon the forfeiture by

wrongdoing doctrine in arguing to the district court that

Llaurador's hearsay statements were admissible against Genao

because he had acquiesced in Llaurador's murder. Forfeiture by

wrongdoing is an independent ground for the admissibility of

hearsay testimony that survives Crawford. See Crawford,

.

-30- Curiously, on appeal, the government essentially abandons

the forfeiture by wrongdoing argument, limiting itself to this one

statement in its brief: "Genao was aware of the order to kill

Llaurador because he had been informed by Victor Manuel Valle

Lassalle, a/k/a 'Manolo,' through David Ramos-Rivera, a/k/a 'Pecas'

not to worry." Instead, it simply argues that both of Llaurador's

statements were admissible because they were declarations against

penal interest and were otherwise reliable. See Fed. R. Evid.

804(b)(3). Crawford makes these traditional hearsay arguments

irrelevant. According to Crawford, Genao had a constitutional

right to confront Llaurador that, as to testimonial hearsay, could

not be overridden merely by showing indicia of reliability.

Under appropriate circumstances, the forfeiture by

wrongdoing doctrine can provide an exception to the Confrontation

Clause. See Crawford,

. But the glancing

reference to the doctrine of forfeiture by wrongdoing in the

government's brief does not give us any assistance in addressing

this difficult waiver issue.8 "We believe it is apodictic that

8 Without purporting to resolve anything, we suggest some of the difficulties involved in determining whether a defendant has "acquiesced" in wrongdoing that would forfeit his confrontation rights. The Seventh and Tenth Circuits have held that the scope of imputed responsibility for procuring the unavailability of a witness, under both Rule 804(b)(6) and the Confrontation Clause, is coextensive with conspiratorial liability under Pinkerton v. United States,

(1946). See United States v. Cherry,

(10th Cir. 2000); accord United States v. Thompson,

(7th Cir. 2002) (adopting Cherry). Under Cherry, the hearsay and Confrontation Clause exceptions are met if "the wrongful

-31- 'issues adverted to in a perfunctory manner, unaccompanied by some

effort at developed argumentation, are deemed waived.'" United

States v. Caraballo-Cruz,

(1st Cir. 1995) (quoting

United States v. Zannino,

(1st Cir. 1990)). This

rule, though most commonly applied to defendant-appellants, may be

"applie[d] with undiminished vigor when, as now, a prosecutor

attempts to rely on fleeting references to unsubstantiated

conclusions in lieu of structured argumentation." Caraballo-Cruz,

. Although in certain circumstances we have the

discretion to overlook waiver by inadequate argument by the

government in a criminal case, see United States v. Rose,

(1st Cir. 1997) (court of appeals has discretion to

overlook government's waiver of harmless error argument), it would

be inappropriate in this case to make the government's argument for

it on an issue both factually and legally complex.

procurement [of the witness's unavailability] was in furtherance, within the scope, and reasonably foreseeable as a necessary or natural consequence of an ongoing conspiracy."

. However, Cherry requires the district court to determine the factors supporting conspiratorial liability at an evidentiary hearing conducted outside the jury's presence.

. Here, the district court did not make any factual findings on the applicability of conspiratorial liability, let alone conduct a separate hearing outside the presence of the jury. While Cherry may represent a sensible rule of law, the government's failure to argue it means that we lack the benefit of arguments on whether to apply Cherry to this case, either in its substantive (scope of liability) or procedural (determination of liability by separate hearing) aspects. These difficulties highlight the necessity of fully developed arguments on the forfeiture by wrongdoing doctrine.

-32- c. Harmless Error

Although the government argued wrongly that Llaurador's

statements were admissible as declarations against penal interest,

it failed to argue in the alternative that, if the statements were

erroneously admitted, the error was harmless. See generally Fed.

R. Crim. P. 52(a) ("Any error, defect, irregularity, or variance

that does not affect substantial rights must be disregarded.");

Delaware v. Van Arsdall,

(1986) (holding that

harmless error review applies to Confrontation Clause violations);

United States v. Reyes-Echevarria,

(1st Cir. 2003)

("We review challenges to the admissibility of evidence under the

Sixth Amendment's Confrontation Clause for harmless error.").

Because the government has not argued harmless error, we

could simply deem the issue waived, as we did for the forfeiture by

wrongdoing issue, and vacate the relevant convictions of Genao.

However, as noted, we have discretion "to overlook the government's

failure to argue that the admission of the challenged evidence, if

error, was harmless, and that [we] may therefore consider the issue

of harmlessness sua sponte." Rose,

. Exercising

this discretion "involves the balancing of many elements."

. If our sua sponte harmless error analysis led us to affirm

Genao's conviction, we would have to engage in a nuanced analysis

of the appropriateness of that sua sponte review. Here, for the

sake of completeness, and in light of our decision to vacate the

-33- convictions for the serious crimes under review, we choose to

explain why admission of Llaurador's statements cannot be deemed

harmless.

"The government, not the defendants, bears the burden of

establishing harmlessness." United States v. Casas,

(1st Cir. 2004), cert. denied sub nom. Segui-Rodriguez v.

United States,

(2004). The analysis is case-

specific, 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 resolution of

a material issue." Sepulveda,

.

We begin our harmless error analysis by describing the

evidence implicating Genao in the murder of Caballo apart from

Llaurador's hearsay statements. Ramos, the co-conspirator turned

informant, described a conversation that he had with Genao in which

Genao explained the course of events on the night of Caballo's

murder. Genao explained to Ramos that Caballo wanted Peña to kill

Llaurador because Caballo suspected Llaurador of stealing his all

terrain vehicle ("ATV"). Genao joined Peña and Caballo in

Caballo's white pickup truck to hunt for Llaurador. When they

finally found Llaurador, Genao got in the car with him and

explained that Caballo wanted to kill him but that he should not

-34- worry because Genao and Peña were planning on killing Caballo

instead. They drove to a remote location with Caballo's white

pickup following behind and then disembarked. When Caballo told

Peña to kill Llaurador, Peña shot Caballo instead. The three then

loaded Caballo's body into the back of the pickup truck and were

planning to dismember the body at Valle-Lassalle's when the truck

became stuck. They were forced to abandon the truck and the body

on the side of the road.

The government offered some corroboration of Ramos's

testimony implicating Genao in the murder of Caballo. Soto

testified that Valle-Lassalle "told [him] what had happened with

[Caballo], that it had been [Genao] and [Peña], and that he had to

do it because of the Colombian thing." Caballo's girlfriend

testified that the last time that she saw Caballo was when he left

her house with Peña and Genao on the night of his murder. She

confirmed that Caballo's ATV had vanished and that the men brought

weapons with them in Caballo's white pickup truck to search for

Llaurador. Finally, Puerto Rico Police Agent Jorge Nazario Torres

testified that he found Caballo's body in his pickup truck, which

was stuck on the side of the road.

There is certainly some force to this evidence. If the

issue before us was the sufficiency of the evidence to support the

jury's finding that Genao engaged in a conspiracy to murder Caballo

or that he aided and abetted the murder of Caballo, we would

-35- conclude that the evidence was sufficient to support those

convictions. However, the issue before us is not the sufficiency

of the evidence. Instead, we must decide whether there is a

reasonable possibility that the error at issue (the admission of

Llaurador's statements) influenced the jury in finding Genao guilty

of these murder-related charges. Before stating our conclusion on

that issue, we summarize the statements of Llaurador that were

presented to the jury by Judge (and former prosecutor) Delgado.

Delgado testified that he put Llaurador under oath and

asked him to tell him everything that he knew about Caballo's

murder. Llaurador responded in detail. He said that he saw

Caballo's truck stopped near his home at 2:00 AM on July 15, 2000.

Knowing that Caballo was mad at him for stealing the ATV, Llaurador

thought that Caballo was either looking for the ATV or was on his

way to visit Llaurador's girlfriend. So he drove to his

girlfriend's house to see if Caballo was there. He was not;

however, Caballo eventually drove near the house, and Genao got out

of Caballo's truck and asked Llaurador to take him to buy gasoline.

While they were driving in Llaurador's truck, Genao explained that

Caballo wanted Genao and Peña to kill him for stealing the ATV but

that they were planning on killing Caballo instead because Caballo

was going to "snitch" regarding the cocaine theft. Genao

repeatedly reassured Llaurador that nothing was going to happen to

-36- him, and he told him to drive toward the cockfighting arena to meet

Caballo and Peña.

After meeting the other two at the arena, Genao and

Llaurador drove to a lake with Peña and Caballo following behind in

Caballo's truck. Genao continued to reassure Llaurador that they

were not planning to kill him. Peña and Genao switched trucks when

they arrived at the lake. Llaurador then implored, "if you're

going to kill me, kill me here and just leave me here." Peña

responded: "Are you going to keep up with this? Just take it easy,

we're not going to do anything to you." Llaurador followed

Caballo's truck a little further up a path, and then all four men

got out of their vehicles. Caballo grabbed Llaurador's shirt,

pushed him up against one of the trucks, and told Peña to "[p]ump

four shots into [his] face." Raising his arm, Peña said that he

was going to pump four shots into Caballo's face and shot him in

the face. Genao and Peña then began to argue about whether they

should leave Caballo's body there or take it with them. They

decided to put the body in the back of Caballo's truck, and

Llaurador, driving alone in his truck, led the group away from the

lake, with Peña and Genao quickly following in Caballo's truck. At

some point, Llaurador noticed that the truck was not behind him

anymore, and he turned back and found it stuck in a ditch on the

side of the road. He heard two shots as he was backing up and,

upon reaching the truck, was told that Peña shot Caballo two more

-37- times because he got up and asked why Peña had shot him. Peña

answered, "[b]ecause you're a mother fucker." Llaurador then drove

Genao to his car and drove Peña to a public housing complex in

Aguadilla. As they were driving, Genao told Llaurador that the

original plan was to make Caballo "disappear" so that Genao could

keep the truck.

Delgado testified that Llaurador provided another

statement on September 13, in which he discussed Valle-Lassalle's

relationship to the murder. Llaurador said that Genao told him on

the way to the cockfighting arena that Valle-Lassalle told them to

kill Caballo because he was going to "snitch" about the cocaine and

that they were planning on taking the body back to Valle-Lassalle's

afterward to "chop him up and make him disappear." That is why

they took the body with them after the murder. Genao also told

Llaurador that he was planning to dismantle the truck.

Llaurador added that he saw Valle-Lassalle a week after

the murder, and the gangleader explained his rationale for killing

Caballo and said that Peña had left the country. Valle-Lassalle

also mentioned another death9 at a parking lot of the Ducos housing

project. Llaurador presciently noted to prosecutor Delgado that

Valle-Lassalle would kill him if he found out about the statements

he was then making and that he omitted the leader's involvement in

his earlier statement "because Manolo is the one who orders the

9 We take this to be a reference to Martin's murder.

-38- killings." Finally, he said that he had not seen Peña since the

murder and that he had not seen Genao since the two attended

Caballo's wake.

These detailed statements of Llaurador, so similar in

some of their details to the testimony of Ramos, are powerfully

corroborative of the testimony offered by Ramos and others

implicating Genao in the murder of Caballo. To treat these hearsay

statements of Llaurador as merely cumulative (the harmless side of

corroborative) would be unrealistic. Moreover, these statements

were read into the record by a Commonwealth judge who was so

identified to the jury. That association inevitably added to the

weight of the hearsay testimony being offered, particularly since

the principal non-hearsay evidence consisted of testimony by a co-

conspirator (Ramos) and a cooperator (Soto), both of whose

integrity might be more open to question than Llaurador's. Under

these circumstances, we cannot exclude the reasonable possibility

that the constitutional error at issue in the admission of

Llaurador's statements influenced the jury in reaching its verdict

that Genao was guilty of participating in a conspiracy to murder

Caballo and that he aided and abetted that murder. Therefore, we

must vacate those convictions.

We reach a different conclusion regarding the impact of

the court's error on the jury's consideration of the drug

conspiracy (count one) charge. Focusing almost exclusively on the

-39- events surrounding Caballo's murder, Llaurador's erroneously-

admitted statements say little about Genao's involvement in the

drug smuggling work of the conspiracy. Moreover, the testimony of

the two cooperating witnesses firmly established his participation

in those activities. Ramos testified that Genao worked as a drug

courier for him before Genao became a member of the conspiracy,

delivering pounds of marijuana for Ramos to sell at the Montana

housing complex. He described Genao's participation in two large

drug shipments, a nine hundred to one thousand kilogram shipment in

the fall of 1995 that the group smuggled on behalf of Ayala; and a

shipment of cocaine in February 1996, which Genao also helped to

transport and from which the conspirators stole kilos. Soto

testified that Genao participated in an aborted effort to smuggle

a large load of marijuana in June 1996. Genao was one of the

captains of the boats and was supposed to be paid between fifty

thousand and sixty thousand dollars, but they were never able to

connect with their supplier.

On the basis of this evidence, we readily conclude that

the district court's erroneous admission of Llaurador's statements

was harmless beyond a reasonable doubt in securing convictions on

count one of the second superseding indictment. See Casas,

(upholding a drug conspiracy conviction where "[o]ther

evidence presented at trial, as well as the admissible testimony of

-40- [the investigating agent] based on personal knowledge, clearly

established that [the defendant] was a member of the conspiracy").

-41-