United States v. Juan Vega

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 14, 2015 Decided June 24, 2016

No. 10-3083

UNITED STATES OF AMERICA,

APPELLEE

v.

JUAN JOSE MARTINEZ VEGA,

ERMINSO CUEVAS CABRERA,

APPELLANTS

Consolidated with 10-3084

Appeals from the United States District Court

for the District of Columbia

(No. 1:04-cr-00446-51)

(No. 1:04-cr-00446-49)

Richard K. Gilbert, appointed by the court, argued the

cause for appellant Martinez Vega. Manuel J. Retureta and

Gary M. Sidell, appointed by the court, argued the cause for

appellant Cuevas. With them on the briefs was Kristen Grim

Hughes.

Michael A. Levy, Assistant U.S. Attorney, argued the

cause for appellee. On the brief were Ronald C. Machen Jr.,

U.S. Attorney at the time the brief was filed, and Randall W.

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Jackson and Brian A. Jacobs, Assistant U.S. Attorneys.

Elizabeth Trosman, Assistant U.S. Attorney, entered an

appearance.

Before: BROWN and MILLETT, Circuit Judges, and

GINSBURG, Senior Circuit Judge.

PER CURIAM: Juan Jose Martinez Vega and Erminso

Cuevas Cabrera were indicted with more than 50 other

individuals for conspiring to commit crimes associated with

the importation, manufacture, and distribution of cocaine into

the United States. To date, only Martinez Vega, Cuevas, and

one other have stood trial. See United States v. Garcia, 757

F.3d 315 (D.C. Cir. 2014).

The indicted individuals were allegedly affiliated with

the Fuerzas Armadas Revolucionarias de Colombia

(“FARC”), a “left-wing guerilla group that has waged a

violent insurgency against Colombia’s government for much

of the last fifty years.” Id. at 316. Though it initially

eschewed the drug trade as counterrevolutionary, the FARC

embraced the manufacture and exportation of cocaine in the

early 1980s as a lucrative means to fund its increasingly

ambitious military objectives. John Otis, The FARC and

Colombia’s Illegal Drug Trade, WILSON CENTER (Nov.

2014), at 3, https://www.wilsoncenter.org/sites/default/files/

Otis_FARCDrugTrade2014.pdf. By the 1990s and early

2000s, after the breakup of the famous Medellín and Cali

cartels, the FARC began to consolidate its control over the

coca fields and cocaine production. Id. at 4.

Martinez Vega and Cuevas allegedly occupied different

roles within the cocaine trade. Martinez Vega’s role primarily

consisted of exporting cocaine and importing arms.

Throughout his association with the FARC, he was allegedly

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responsible for exporting at least 11,000 kilograms of cocaine

and with supplying the FARC with 250 tons of ammunition,

explosives, and weapons. Cuevas, on the other hand,

allegedly operated a large cocaine laboratory that produced

thousands of kilograms of cocaine paste each week. In

addition to supervising that operation, Cuevas allegedly met

with FARC officials on several occasions to oversee the

shipment of coca base to his laboratory.

After their capture and extradition to the United States,

Martinez Vega and Cuevas were tried for and convicted of

violating Title 21 of the United States Code, Sections 812,

952, 959, 960, and 963. Taken together, these sections

provide for the punishment of any person who knowingly or

intentionally conspires to import, manufacture, or distribute

five kilograms or more of cocaine into the United States. The

district court then sentenced Martinez Vega and Cuevas to

330 and 348 months’ imprisonment, respectively. These

defendants come before us now appealing their convictions

and sentences.

Three categories of issues are raised in this appeal: the

joint issues, the Martinez Vega-specific issues, and the

Cuevas-specific issues. Both Martinez Vega and Cuevas

challenge the sufficiency of the evidence, the mens rea jury

instructions, and the district court’s denial of their motions

alleging prosecutorial misconduct. Martinez Vega challenges

several evidentiary rulings pertaining to identification

evidence, as well as the application of a “managerial”

sentencing enhancement. Finally, Cuevas challenges the

admission of certain evidence, the adequacy of the district

court’s curative instruction to the jury regarding stricken

testimony, the district court’s refusal to permit cross-

examination about witnesses wearing ankle monitoring

devices, and its application of certain sentencing

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enhancements. Detailed discussions of the facts, evidence,

and standards of review will be set forth as necessary to

address each issue Defendants raise.

I. Joint Issues

Martinez Vega and Cuevas together raise three arguments

for vacating their convictions: (i) the mens rea evidence was

insufficient; (ii) the mens rea jury instructions were

misleading; and (iii) the Government committed prejudicial

prosecutorial misconduct. We address each in turn.

A. Sufficiency of Evidence

Defendants argue the evidence at trial was insufficient to

prove the mens rea element of their charged offense; that they

knew or intended the cocaine would end up in the United

States. See 21 U.S.C. § 952(a); id. § 959(a); id. § 960(a)(1),

(a)(3). In their view, not only did the Government fail to put

on any direct evidence of mens rea, the proffered

circumstantial evidence doesn’t justify the inference that

either of them knew the destination of the cocaine.

Challenging a jury verdict for insufficient evidence

carries with it an “exceedingly heavy burden.” United States

v. Booker, 436 F.3d 238, 241 (D.C. Cir. 2006); see also

United States v. Morris, 576 F.3d 661, 666 (7th Cir. 2009)

(describing the burden as a “nearly insurmountable hurdle”).

To prevail, Defendants must convince the court that no

“rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt.” United States v.

Stadd, 636 F.3d 630, 636 (D.C. Cir. 2011). We review

sufficiency-of-the-evidence claims “in the light most

favorable to the government, drawing no distinction between

direct and circumstantial evidence, and giving full play to the

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right of the jury to determine credibility, weigh the evidence

and draw justifiable inferences of fact.” United States v.

Dykes, 406 F.3d 717, 721 (D.C. Cir. 2005).

We conclude the jury’s mens rea determinations were

justified by sufficient evidence. The Government

demonstrated several facts from which a rational juror could

reasonably infer intent or knowledge that the cocaine would

end up in the United States. First, it demonstrated that at least

half of the cocaine produced in Colombia is exported to the

United States, establishing a substantial probability that at

least some of the 11,000 kilograms of cocaine Martinez Vega

trafficked or the thousands of kilograms of cocaine paste

Cuevas manufactured each week was headed to the United

States. Second, several witnesses confirmed that, among the

FARC rank-and-file, it was a widespread and generally

known fact that the cocaine they handled was destined for the

United States. Maria Santiago and Hernan Santiago each

testified that the destination of these drugs (the United States)

was a topic of discussion among Cuevas’s subordinates at the

laboratory. And Alexis Perez offered similar testimony with

respect to Martinez Vega, that it was “something normal to

hear the comments that the coke was coming to the United

States because it was said that it is the country that most

consumes it.” These testimonies justify an inference that

those within both Martinez Vega’s and Cuevas’s operations

were generally aware of the intended destination. Third,

Martinez Vega and Cuevas had high-level roles in their

association with the FARC, which, in conjunction with the

previous point, justifies an inference that, given their rank

within the organization, they were even more likely to know

the destination than their subordinates. Martinez Vega was a

leader within the 16th Front of the FARC—he was an

important enough leader that the FARC provided security as

he conducted his operations. Cuevas was the “general

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administrator” of a large cocaine laboratory where he

supervised about 80 workers and met with FARC officials to

coordinate product deliveries.

These data points justify the jury’s inferences that both

Martinez Vega and Cuevas knew or intended the drugs would

end up in the United States. This is not a close question. In

fact, in United States v. Martinez, this court upheld a

conviction for conspiracy to import cocaine into the United

States against an insufficiency challenge based on evidence

that closely mirrors the evidence in this case. 476 F.3d 961,

963 (D.C. Cir. 2007). First, a former DEA Agent testified,

based on his extensive experience, that “almost every drug

operation that transports Colombian cocaine by land through

Central America intends to import the cocaine into the United

States.” Id. at 969. Second, there was direct evidence that

“many of the lower-level individuals involved with the . . .

shipment of cocaine knew [it] was headed to the United

States.” Id. And third, Martinez “supervised many key

aspects of the international transportation of this massive

shipment of cocaine.” Id. at 968.

In response, Defendants stress a lack of direct evidence

of knowledge or intent, but that emphasis is unavailing. Our

review of insufficiency claims treats all evidence—direct or

circumstantial—the same. See Dykes, 406 F.3d at 721.

Moreover, this argument carries even less weight considering

their insufficiency claim alleges a lack of direct mens rea

evidence. In “most cases in which the defendant’s state of

mind is at issue, it may be near impossible to establish the

requisite mens rea through direct evidence,” and therefore

proof must be inferred from circumstantial evidence instead.

United States v. Schaffer, 183 F.3d 833, 843 (D.C. Cir. 1999).

As we have shown, the proffered circumstantial evidence is

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sufficient to support the jury’s guilty verdicts, and

accordingly, we reject Defendants’ insufficiency claim.

B. Jury Instructions

Martinez Vega and Cuevas also challenge the district

court’s jury instructions. Specifically, they claim the

instructions failed to adequately convey that Defendants

“personally intended the cocaine be imported into the United

States or personally knew the cocaine would be imported into

the United States.” Defendants Br. 41. Defendants’ argument

focuses on the district court’s use of a “shorthand” description

of the mens rea requirement. In their view, the instructions

were “highly ambiguous” and “widen[ed] the meaning of

conspiracy” by “minimiz[ing] a defendant’s necessary

involvement.” Id. at 43.

When reviewing a challenge to jury instructions, “[t]he

pertinent question is whether, taken as a whole, the

instructions accurately state the governing law and provide

the jury with sufficient understanding of those issues and

applicable standards.” United States v. Wilson, 605 F.3d 985,

1018 (D.C. Cir. 2010). While the propriety of a submitted

jury instruction is reviewed de novo, “the choice of language

to be used in a particular instruction . . . is reviewed only for

abuse of discretion.” Joy v. Bell Helicopter Textron, Inc., 999

F.2d 549, 556 (D.C. Cir. 1993).

The district court’s instructions began with a recitation

of the charge, which included an accurate description of the

“knowing or intending” mens rea requirement. Then, the

court broke the Government’s burden into two parts. First,

the Government was required to demonstrate an “agreement

to import . . . or to manufacture and distribute five kilograms

or more of cocaine knowing and intending that it would be

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imported into the United States.” Second, the Government

was required to demonstrate that Martinez Vega and Cuevas

“intentionally joined in that agreement.” Explaining further,

the district court stated the Government must prove “a

defendant participated in the conspiracy with knowledge of its

unlawful purposes, and with an intent to aid in the

accomplishment of its unlawful objectives.” Following this

robust description of the Government’s burden, the district

court concluded with a concise and accurate summary of the

mens rea requirement:

Thus with respect to count one, if you find beyond a

reasonable doubt that the defendant conspired to

import any amount of cocaine into the United

States, or to manufacture any amount of cocaine

with the intent or knowledge that it would later be

imported to the United States, then you should find

the defendant guilty. If, however, you find that the

government has not proven beyond a reasonable

doubt that the defendant conspired to import any

amount of cocaine into the United States or to

manufacture and distribute any amount of cocaine

with the intent or knowledge that it would later be

imported to the United States, then you should

[find] the defendant not guilty.

On multiple occasions throughout the instructions, the

district court accurately and clearly explained the mens rea

requirement. And as we have stated, “[j]ury instructions are

proper if, when viewed as a whole, they fairly present the

applicable legal principles and standards.” Czekalski v.

LaHood, 589 F.3d 449, 453 (D.C. Cir. 2009).

Defendants’ concern centers on the district court’s

shorthand description of the mens rea requirement, “that a

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defendant participated in the conspiracy with knowledge of its

unlawful purposes, and with an intent to aid in the

accomplishment of its unlawful objectives.” This instruction,

however, was immediately preceded by a description of what

the conspiracy’s unlawful purposes and unlawful objectives

were—the importation, manufacture, and distribution of

cocaine with knowledge or intent that it end up in the United

States. That mens rea language is cumbersome, and the

district court’s decision to use a shorthand method of referring

to it did not render the mens rea instruction ambiguous,

especially considering that this shorthand language is

bookended by two unmistakably clear and entirely accurate

descriptions of the requirement. Jury instructions “must be

evaluated not in isolation but in the context of the entire

charge.” Jones v. United States, 527 U.S. 373, 391 (1999).

Taken as a whole, these instructions clearly informed the

jurors of the precise nature of the mens rea question before

them. Because the mens rea jury instructions unambiguously

and accurately reflected the state of the law, we hold the

district court did not err.

C. Prosecutorial Misconduct

Defendants allege the prosecutor improperly (i) appealed

to the jury to act as the “community conscience”; (ii)

expressed personal opinion regarding Defendants’ guilt; and

(iii) discussed the court’s overruling of a defense objection

during closing arguments. Each of these prosecutorial

misconduct claims fail. We address each in turn.

First, Defendants contend the prosecutor’s references to

America’s drug culture and related problems in its closing

summation were unfairly “designed to inflame the passions or

prejudices” of jurors. Defendants Br. 47 (quoting United

States v. Johnson, 231 F.3d 43, 47 (D.C. Cir. 2000)).

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Specifically, the prosecutor told the jury that “a lot of the

problems here in Washington D.C., in New York, in Detroit

where I grew up, can be traced right back to [drug

trafficking].” In Defendants’ view, the prosecutor perceived

the jury “might be [un]interested in Colombia’s drug

problems,” Defendants Br. 48, which led him to improperly

tie the Colombian drug trade to the American drug problem,

inviting the jury to act as the “community conscience.”

To be sure, a suggestion that the jury act as the

“community conscience” can constitute error. In United

States v. Hawkins, our circuit warned it is improper to

“substitute emotion for evidence by equating, directly or by

innuendo, a verdict of guilty to a blow against the drug

problem.” 595 F.2d 751, 754 (D.C. Cir. 1978); see also

United States v. Solivan, 937 F.2d 1146, 1151 (6th Cir. 1991)

(holding an appeal to the jury to act as the community

conscience is improper when it is “calculated to incite the

passions and prejudices of the jurors”). This caution derives

from Viereck v. United States, 318 U.S. 236 (1943), in which

the Supreme Court held a prosecutor’s appeal to jurors’

patriotism during World War II was “wholly irrelevant to any

facts or issues in the case, the purpose and effect of which

could only have been to arouse passion and prejudice.” Id. at

247.

But, critical to our disposition here, the Hawkins panel

held that such erroneous appeals may not warrant reversal “in

light of the relative strength of the case against the accused.”

595 F.2d at 754. Because “[t]he Government’s case against

appellant was strong indeed,” and the “instructions given by

the trial court sufficiently diluted any prejudice,” the panel

held it was not “an occasion on which reversal would be

appropriate.” Id. at 755; see also United States v. Barnett,

No. 97-3091, 1998 WL 203122, at *1 (D.C. Cir. April 8,

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1998) (per curiam) (“[A]ppealing to the jury to ‘do the right

thing’ is not clearly erroneous when, as here, the Government

couples its argument that the jury should ‘do the right thing’

with specific references to the evidence in the record. . . .

Furthermore, the evidence presented at trial was sufficiently

probative of Barnett's guilt that any error that might have

occurred was not prejudicial.”).

As it was in Hawkins, so it is here. Even if the prosecutor

erred in connecting Martinez Vega’s and Cuevas’s charges to

America’s drug problems, the error was harmless because the

case against the Defendants was “strong indeed.” Hawkins,

595 F.2d at 755. In light of that strong case, and also given

the district court’s instruction that “the statements and the

arguments of the lawyers are not evidence,” the prosecutor’s

appeal to the jury to act as the “community conscience” does

not warrant reversal.

Second, Defendants contend the prosecutor improperly

interjected personal beliefs into his closing statement. “When

a prosecutor gives his personal opinion on the credibility of

witnesses or the defendant’s guilt . . . ‘such comments can . . .

jeopardize the defendant’s right to be tried solely on the basis

of the evidence presented to the jury.’” United States v.

Hampton, 718 F.3d 978, 983 (D.C. Cir. 2013) (quoting United

States v. Young, 470 U.S. 1, 18 (1985)). At various points

throughout the prosecutor’s summation, he spoke in the “first

person singular,” making such statements as, “I think the

evidence did prove that . . .”; “I think it is clear . . .”; “But if

you consider the recordings, and I think you should, it

becomes obvious . . .”; “I don’t know if I buy that . . .”; “I’m

not sure I buy it. I don’t think you should either . . .”; and

“I’m not even sure what to make of this argument.”

Defendants argue these statements violate the Supreme

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Court’s injunction against prosecutors “interjecting personal

beliefs.” See Young, 470 U.S. at 7–8.

Two of our sister circuits have directly confronted the

question whether speaking in the first person singular is a

ground for a new trial. See United States v. Nersesian, 824

F.2d 1294, 1328–29 (2d Cir. 1987); United States v. Carleo,

576 F.2d 846, 851–52 (10th Cir. 1978). Reviewing similar

statements as found here, the Nersesian court “stress[ed] that

it is a poor practice, one which this court has repeatedly

admonished prosecutors to avoid.” 824 F.2d at 1328. That

said, and despite recognizing “[i]t is well settled that it is

improper for a prosecutor to interject personal beliefs into a

summation,” the court nonetheless declined to reverse. Id.

Viewing the summation “as a whole,” the Second Circuit

examined whether the improper language “amount[ed] to

unacceptable vouching.” Id. Several considerations

prompted the court to conclude it did not. For one, the

“offending conduct was . . . limited to a relatively small

portion of an overall lengthy summation.” Id. Moreover, the

district court “instruct[ed] the jury that the lawyer’s

statements were not evidence,” and defense counsel made no

“contemporaneous objections.” Id. Also, the court concluded

“it can fairly be said that appellants’ convictions were the

result of the jury’s assessment of the evidence, not the result

of improper argument by the prosecutor.” Id.; see also United

States v. Restrepo, 547 F. App’x 34, 42 (2d Cir. 2013)

(warning prosecutors to avoid first-person formulations but

ultimately concluding “there [was] no likelihood that the jury

was misled about the argument the prosecutor was making”);

but see United States v. Eltayib, 88 F.3d 157, 173 (2d Cir.

1996) (concluding “not all uses of the pronoun ‘I’ are

improper” such as “I suggest that,” which “shie[s] away from

an outright endorsement”). In Carleo, the Tenth Circuit

charted a similar path. 576 F.2d at 851–52. Deeming

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improper the prosecutor’s first person formulation, the court

nonetheless determined the prosecutor “was neither

personally vouching for the credibility of the government

witness nor personally attacking the credibility of the

defendant,” nor was he “attempting to convey to the jury that

he somehow possessed information . . . to which the jury was

not privy.” Id. at 852. In light of these conclusions, the court

held the trial court did not abuse its discretion in denying a

motion for a new trial. See id.

We join our sister circuits in admonishing prosecutors to

avoid the “use of the personal pronoun ‘I.’” Nersesian, 824

F.2d at 1328. It is poor practice and threatens the defendant’s

right to a fair trial. But as in Nersesian, Restrepo, and Carleo,

the prosecutor’s remarks here do not constitute reversible

error. As noted above, the district court instructed the jury

that the “statements and the arguments of the lawyers are not

evidence,” and the few offending statements were contained

within a very lengthy closing summation of the Government’s

strong case. While the prosecutor should have avoided the

personal pronoun, had he replaced “I” with slightly different

phrases like “the evidence shows” or “the record is clear

that,” he could have communicated a nearly identical

sentiment without any impropriety. 1 Cf. United States v.

Eltayib, 88 F.3d 157, 172 (2d Cir. 1996) (“The problem with

1

In other words, slight stylistic cures can head off objections like

this at the pass. It is important to the integrity of the jury trial

process to avoid vouching or interjecting personal beliefs, but there

are plenty of proper ways to communicate what the prosecutor

attempted to say here. For example, compare the following

phrases. The prosecutor said: “I think the evidence did prove that .

. . .” An error-free way to say the same thing: “The evidence

proves . . . .” The prosecutor said, “I don’t know if I buy that . . .”,

but he could have said, “What you heard at trial casts doubt on that

. . . .”

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a prosecutor’s use of the pronoun ‘I’ is that it ‘tends to make

an issue of [the prosecutor’s] own credibility, or to imply the

existence of extraneous proof.”). Moreover, Defendants’

counsel also failed to object to these statements at trial, so our

appellate touch is even lighter here than it otherwise might

have been. See United States v. Olano, 507 U.S. 725, 732

(1993). Accordingly, we conclude the jury’s guilty verdict

was a product of the Government’s strong case against

Martinez Vega and Cuevas, not the prosecutors stray

improper remarks.

Third, Defendants argue that a PowerPoint slide

containing a reference to an overruled defense objection

constituted prosecutorial misconduct. Even assuming the

reference was error, Defendants fail to present any theory

whatsoever as to why it prejudiced them. Even their reply

brief contains no explanation, despite the Government’s

argument pointing out this critical defect. Reply Br. at 24.

(The entire response: “The Government offers no theory to

support presentation of a PowerPoint slide depicting the

overruling of a defense objection to the jury. Defendants

submit that none exists, especially in light of the district

court’s midtrial instruction.”). Without a showing of

“substantial prejudice,” an act of prosecutorial misconduct

cannot constitute reversible error. See United States v. Small,

74 F.3d 1276, 1280 (D.C. Cir. 1996). Defendants’ failure to

show any prejudice, let alone substantial prejudice, is fatal to

their prosecutorial misconduct claim.

II. Issues Raised by Martinez Vega

Martinez Vega individually challenges several of the

district court’s rulings pertaining to evidence identifying his

involvement in criminal activities. According to Martinez

Vega, such evidence was crucial to his eventual conviction

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because the Government’s case against him relied primarily

on accepting both that a person nicknamed “Chiguiro” was a

significant member of the FARC’s 16th Front operation, and

that Martinez Vega was that individual. 2 Specifically,

Martinez Vega argues that the district court committed

reversible error in failing (i) to compel the Government to

correct the false testimony of DEA Intelligence Research

Specialist Francisco Garrido; (ii) to give “missing-evidence”

instructions to the jury regarding photo arrays that had been

used with certain witnesses; (iii) to sanction the Government

for its failure to timely disclose a photograph identifying

another man as “Chiguiro”; and (iv) to admit a prior

inconsistent statement by government witness Ignacio

Gonzales Jaramillo. Martinez Vega also appeals the district

court’s application of a “managerial role” sentencing

enhancement. We reject all of the evidentiary claims, but

vacate and remand Martinez Vega’s sentence to the district

court for further consideration.

A. Failure to Correct False Testimony

Former FARC member and prosecution witness Viviana

Ortiz testified on cross-examination that, during an interview

at the U.S. Embassy in Bogotá, she was shown some

photographs, one of which she identified as Martinez Vega by

the nickname “Chiguiro.” Defense counsel objected that the

prosecution had not previously disclosed Ortiz’s photographic

identification of Martinez Vega. The prosecutor disclaimed

any prior knowledge of the identification, and the district

court instructed the Government to “check with your records

and your agents to see if . . . somebody showed her a photo, if

you have a record of it.” S.A. 189–90. The following

2

“Chiguiro” is another name for a capybara, “an extremely large,

semi-aquatic rodent, indigenous to South America.” Gov’t Br. 4.

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morning, the prosecutor reported to the court his “suspicion”

that Ortiz had been shown photographs by an agent of the

Drug Enforcement Agency, but the Government “[didn’t]

have a record of that.” Id. at 212.

During the defense case, Martinez Vega called Francisco

Garrido, a DEA Intelligence Research Specialist, and

questioned him about his interviews in Bogotá of former

FARC members, including Ortiz. On re-direct, defense

counsel confirmed with Garrido that Ortiz had identified

Martinez Vega as “Chiguiro.” When asked, “But you did not

actually show her photographs of Chiguiro, did you?” Garrido

responded, “I believe I did. I had a copy of the photo array

depicting your client.” S.A. 539.

Martinez Vega’s counsel objected that Garrido’s

testimony was inconsistent with the Government’s prior

representation that “they did not have anybody who could

confirm or deny whether Ms. Ort[i]z was shown some

identifications [sic].” S.A. 539–40. The Government denied

any inconsistency, differentiating between a lack of records

about the identification and Garrido’s own recollection of the

events. The court stated that Martinez Vega could ask

additional questions if he wished to probe Garrido’s memory.

During continued questioning by defense counsel,

Garrido confirmed that he had shown Ortiz a photo array and

claimed that the photographs “became part of the case folder.”

S.A. 544–46. At sidebar, defense counsel asked for the

photographs shown to Ortiz. The Government responded that

Garrido appeared to be testifying to “his belief,” but that

“there was only one photo array that was ever created”

including Martinez Vega’s picture, and Garrido likely “does

not have any photo array that is marked by Vivian[a] Ort[i]z,

17

or that he recorded as being a specific one that she identified.”

Id. at 548. 3

In a subsequent hearing outside the presence of the jury,

the district court allowed both sides to continue questioning

Garrido about the issue. Garrido confirmed that he created

only one photo array relating to Martinez Vega, but denied

any knowledge as to whether anyone had Ortiz “mark a photo

array.” S.A. 552. He testified that he did not record or make

any notes of Ortiz specifically marking or identifying any

photograph in the array. Garrido also admitted that he had

“no independent recollection” of whether or not Ortiz was

actually shown a photo array; his belief was based on the fact

that he had shown the photo array to “numerous people”

during the investigation. Id. at 553.

The next day, Martinez Vega moved to dismiss the case

due to the Government’s failure to correct Garrido’s

testimony before the jury. The court denied the motion from

the bench, finding that the Government was not “deliberately

withholding information that’s false or allowing false

testimony to go forward uncorrected.” J.A. 1675. Martinez

Vega raised the issue again in his motion for a new trial. The

court once more denied the request, reasoning that, even if

Garrido had testified falsely about having shown Ortiz a

photo array, such testimony was immaterial and could not

have affected the jury’s judgment because there was sufficient

other evidence at trial regarding Martinez Vega’s identity.

A claim that the Government violated the Fifth

Amendment by knowingly failing to correct false testimony is

reviewed de novo. See United States v. Mejia, 597 F.3d 1329,

1338 (D.C. Cir. 2010). The district court’s denials of motions

for a mistrial and for a new trial are reviewed for abuse of

3

The “one” acknowledged photo array was previously admitted.

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discretion. See United States v. Moore, 651 F.3d 30, 50 (D.C.

Cir. 2011) (mistrial); United States v. Becton, 601 F.3d 588,

594 (D.C. Cir. 2010) (new trial).

Under Napue v. Illinois, 360 U.S. 264 (1959), the

Government “may not knowingly use false evidence” or

“allow[] it to go uncorrected when it appears,” id. at 269.

“This rule applies both when the testimony relates directly to

an essential element of the government’s proof and when it

affects the credibility of a crucial witness.” United States v.

Iverson, 637 F.2d 799, 801 (D.C. Cir. 1980), modified, 648

F.2d 737 (D.C. Cir. 1981). “The principle that a State may

not knowingly use false evidence, including false testimony,

to obtain a tainted conviction . . . does not cease to apply

merely because the false testimony goes only to the credibility

of the witness.” Napue, 360 U.S. at 269.

Yet even if the prosecution either sponsored or failed to

correct false testimony, the grant of a new trial is not

automatic. See United States v. Burch, 156 F.3d 1315, 1329

(D.C. Cir. 1998); Giglio v. United States, 405 U.S. 150, 154

(1972). Rather, “a reviewing court must determine whether

‘the false testimony could in any reasonable likelihood have

affected the judgment of the jury.’” Burch, 156 F.3d at 1329

(quoting Giglio, 405 U.S. at 154). Put another way, “the fact

that testimony is perjured is considered material unless failure

to disclose it would be harmless beyond a reasonable doubt.”

United States v. Bagley, 473 U.S. 667, 680 (1985). 4

As a preliminary matter, the Government’s effort to

portray Garrido’s testimony as merely an “equivocal”

4

This standard is equivalent to the harmless-error standard for

constitutional error under Chapman v. California, 386 U.S. 18

(1978). See Bagley, 473 U.S. at 679 n.9.

19

expression of his “belief” that he had shown Ortiz

photographs of “Chiguiro” (Gov’t Br. 48–49) strains credulity

and is heavily dependent on selectively parsing and

rearranging Garrido’s actual words. While Garrido did

initially say he “believe[d]” he had shown “photographs of

Chiguiro” to Ortiz, S.A. 539, he then proceeded to describe a

specific photo array, whether it included certain individuals,

and what he did with the array afterwards. Similarly, when

read in context, Garrido’s affirmative response to the question

whether he had shown Ortiz “any photographs” was not an

answer to a “broad and general question” about any random

assortment of pictures as the Government suggests. Gov’t Br.

49. Since Garrido had just testified about a photo array

depicting Martinez Vega and Ortiz’s identification of

Martinez Vega as “Chiguiro,” both defense counsel’s question

(“Now let me then ask you about the identification you told us

about. . . . When you met Ms. Ort[i]z on November 19, 2008,

did you show her any photographs?” S.A. 544–45) (emphasis

added), and Garrido’s answer (“Yes.” Id. at 545), by their

plain terms referred to the specific photographs in the

aforementioned photo array. 5

Disappointingly, the Government knew or should have

known that this testimony was suspect. The Government had

5

Moreover, the Government is wrong to assert that the district

court found that Garrido did not testify falsely about his use of the

photo array. To the contrary, the district court acknowledged the

“legitimate” questions regarding the credibility of Garrido’s

testimony, but ruled that the Government’s conduct did not warrant

dismissal in light of the “multiple identifications of Mr. Martinez

Vega by other individuals” at trial. S.A. 922–23. Later, in ruling

on Martinez Vega’s motion for a new trial, the court expressly

declined to make any determination as to whether Garrido’s

testimony was false, finding that it was not material even if false.

20

previously disclaimed any prior knowledge of a photo-array

identification by Ortiz and reported to the court that it had no

record of anyone showing Ortiz photographs. The

Government thus should have been on full alert as soon as

Garrido started testifying to a different story. The hearing

conducted by the district court, outside of the jury’s presence,

spotlighted Garrido’s inaccuracies. 6 Hair-splitting

distinctions in degree of falsity and inaccuracy should not be

the currency of federal prosecutors. See Napue, 360 U.S. at

269 (“[A]lthough not soliciting false evidence,” the

government is bound to correct it “when it appears.”).

The only thing that saves the Government is that

Garrido’s testimony could not “in any reasonable likelihood

have affected the judgment of the jury.” Napue, 360 U.S. at

271. Martinez Vega argues that permitting Garrido’s

testimony to remain uncorrected not only bolstered the

substantive testimony of Ortiz, but also reinforced the overall

credibility of both witnesses. That is, a revelation that

Garrido’s testimony was false might have cast doubt on the

general reliability of both Ortiz and Garrido, particularly

given other inconsistencies in their testimonies. And that in

turn might have colored the jury’s acceptance or rejection of

Garrido’s and Ortiz’s testimony on other matters.

6

See S.A. 553 (Q: “So, when you testified that you believed that

the photo array . . . that you believed was shown to Ms. Ortiz was

in the case file, can you explain what you were talking about?” A:

“I thought that the photo array—that she was shown a photo array

and that she had markings, but she didn’t [sic].” Q: “Well, can you

. . . state with certainty that Ms. Ortiz was actually shown a photo

array?” A: “I don’t have an independent recollection whether she

was or wasn’t. I really don’t remember.”); id. at 555 (Q: “So, as

you sit here today, did you or did you not show Viviana Ortiz a

photo array?” A: “As I sit here today, I don’t have a recollection

whether I did or I did not.”).

21

That line of reasoning does not hold up given the record

in this case. First, Ortiz’s identification of Martinez Vega

during the alleged photo array presentation was of dubious

relevance, given that Ortiz had repeatedly identified Martinez

Vega and connected him to the nickname “Chiguiro” earlier

in the trial. Indeed, she identified him by that moniker at the

very start of her testimony, and again while being shown

video footage of guerillas crossing a river “with Chiguiro.”

Importantly, Ortiz based those in-court identifications on her

frequent, personal, and direct observations of Martinez Vega

working with the FARC. She recounted, for example,

providing security for Martinez Vega while he and his men

transported weapons and cocaine base. She also testified to

seeing him speak with various FARC commanders and move

drugs and weapons to and from camp. At one point, Ortiz

recalled how she and other FARC members even ate lunch at

Martinez Vega’s house. Given all that, the reference to a

photo array was just gilding the lily.

Second, even if the jury had completely disregarded

Garrido and Ortiz as unreliable witnesses, multiple other

witnesses provided similar testimony. For example, like

Ortiz, Mauricio Parra Diaz repeatedly identified Martinez

Vega as “Chiguiro” and testified that he saw him transporting

cocaine and weapons for the FARC. Parra Diaz also

confirmed, as did Ortiz, that Martinez Vega carried a pistol—

something only guerillas and drug traffickers were permitted

to do in the 16th Front—and testified that he was present

when Front Leader Negro Acacio announced the news of

Martinez Vega’s arrest. Likewise, Eugenio Vargas Perdomo

identified Martinez Vega as “Chiguiro,” and testified that they

lived and worked together, trafficking cocaine and buying

uniforms, weapons, and ammunition for the 16th Front. And

Luis Restrepo testified that Martinez Vega was “Chiguiro,”

22

and that he witnessed Martinez Vega repeatedly exchange

weapons for cocaine with Negro Acacio.

Garrido’s testimony, too, generally reiterated other

evidence at trial. Garrido explained that Martinez Vega,

during his extradition flight to the U.S., stated that his

nickname was “Chiguiro” and described having moved

several tons of cocaine, weapons, and supplies for the FARC.

But Carlos Gonzales Jaramillo, a colonel in the Colombian

army, also testified that Martinez Vega made similar

confessions to him, including that he was “Chiguiro” and that

he transported several tons of cocaine, as well as uniforms

and weapons, for the FARC.

Accordingly, looking at the evidence in the record as a

whole, there is no “reasonable likelihood” that the photo-array

segment of Garrido’s testimony, even if false, could have

altered the outcome of the case. Cf. Giglio, 405 U.S. at 154–

55 (reversing where “the Government’s case depended almost

entirely on [the perjuring witness’s] testimony; without it

there could have been no indictment and no evidence to carry

the case to the jury”). Because the false testimony was not

material, the district court’s refusal to grant a mistrial or a

new trial was not an abuse of discretion.

B. Missing-Evidence Instructions

Another government witness, Mauricio Parra Diaz,

testified to being shown photographs at the U.S. Embassy in

Colombia by the DEA and selecting Martinez Vega as

“Chiguiro.” Outside the presence of the jury, DEA Special

Agents Cesar Medina and Daniel Dyer testified that a photo

array had been shown to numerous potential witnesses in

Colombia. However, the agents had no specific recollection

of the people who were shown the array, and the Government

kept no record of that information or of any identifications the

23

witnesses made. In fact, Medina confirmed that “the

understanding” within his office was that he “would keep no

record of this,” but simply call Dyer in the event of an

identification, J.A. 1000, and Dyer, for his part,

acknowledged that he did not make records of such calls.

Medina also testified that the photo array he used was kept in

a folder in the DEA’s Bogotá Country Office, but that he

believed it had since been shredded because the office

“shred[s] the photo arrays, because it is not needed any more

for that particular interview [sic].” Id.

In light of that testimony, Martinez Vega requested the

following jury instruction:

Both Ms. Ortiz and Mr. Parra Diaz have testified that

they were shown photographs of individuals at the

United States Embassy in Bogota and that they

identified a photograph of Martinez Vega as that of

the person they have each identified as “Chiguiro.”

The United States has no records or other

information that would corroborate this testimony. If

photographs were shown to the witnesses for

purposes of identification, the Government would be

obligated to preserve such photographs, as well as

any record of what the witnesses may have said at

the time of their identifications. The United States

has no such photographs or records.

J.A. 1054.

A third witness, Luis Restrepo, testified that he was

shown photographs that “included . . . Mr. Chiguiro,” whom

he identified in court as Martinez Vega. J.A. 1191. Garrido

testified that he showed Restrepo a photo array depicting

Martinez Vega and that he “thought [the photos] were filed in

24

the case folder.” Id. at 1362. Again, no such photographs

were produced by the Government.

Martinez Vega requested another instruction regarding

Restrepo’s identification:

If photographs shown to Mr. Restrepo in this case

were only within the power of the government to

produce, and were not produced by the government,

and their absence has not been sufficiently explained,

then you may, if you deem it appropriate, infer that

the photographs would have been unfavorable to the

government.

J.A. 1054–55. The district court declined to give either

instruction, citing no evidence of bad faith on the part of the

Government regarding the loss or destruction of the

photographs and the fact that “these were not really

identification procedures” in which the “only way [the

witnesses] could ever identify” Martinez Vega was through

the photo array. Id. at 1698–1700.

The district court’s decision withholding a missing-

evidence instruction is reviewed for abuse of discretion.

United States v. West, 393 F.3d 1302, 1309 (D.C. Cir. 2005),

abrogated on other grounds by Burgess v. United States, 553

U.S. 124 (2008); see also United States v. Tarantino, 846

F.2d 1384, 1404 (D.C. Cir. 1998) (describing standard of

review for denial of analogous missing-witness instruction).

A missing-evidence instruction “is appropriate if it is

peculiarly within the power of one party to produce the

evidence and the evidence would elucidate a disputed

transaction.” West, 393 F.3d at 1309; see also United States

v. Williams, 113 F.3d 243, 245 (D.C. Cir. 1997) (foundation

for analogous missing-witness instruction). “When these two

requirements are met, jurors may be instructed that the

25

controlling party’s failure to produce the evidence permits

them to draw the inference that the evidence would have been

unfavorable to that party.” Id.

Federal Rule of Criminal Procedure 16, the Jencks Act,

18 U.S.C. § 3500, and Brady v. Maryland, 373 U.S. 83

(1963), all impose duties on the Government to disclose

certain materials and evidence to criminal defendants. In

United States v. Bryant, 439 F.2d 642 (D.C. Cir. 1971), this

court held that those duties to disclose included a correlative

duty to preserve that evidence in the first place, since “[o]nly

if evidence is carefully preserved during the early stages of

investigation will disclosure be possible later,” id. at 651.

Accordingly, Bryant instructed that the Government must

“promulgate[], enforce[] and attempt[] in good faith to follow

rigorous and systematic procedures designed to preserve all

discoverable evidence gathered in the course of a criminal

investigation,” or else risk the imposition of sanctions “for

non-disclosure based on loss of evidence.” Id. at 652.

Martinez Vega argues that, under Bryant, the

Government was obligated to retain the photographs used in

the witness identifications, as well as verbatim records of any

statements the witnesses may have made at the time. The

problem for Martinez Vega is that the Supreme Court’s

subsequent decision in Arizona v. Youngblood, 488 U.S. 51

(1988), narrowed the Government’s constitutional obligations

regarding the preservation of evidence. Specifically, the

Court held that “the Due Process Clause of the Fourteenth

Amendment, as interpreted in Brady, makes the good or bad

faith of the State irrelevant when the State fails to disclose to

the defendant material exculpatory evidence.” Id. at 57. But

if “no more can be said” about the evidence “than that it could

have been subjected to tests, the results of which might have

exonerated the defendant,” there is no denial of due process

26

unless a criminal defendant can demonstrate the

Government’s bad faith. Id. at 57–58. Youngblood thus

confines the Due Process Clause to superintending only those

cases in which the missing evidence is material and

exculpatory or in which “the police themselves by their

conduct indicate that the evidence could form a basis for

exonerating the defendant.” Id. at 58.

Following Youngblood, this court has held that Bryant, at

least with respect to due process claims based on missing

evidence the exculpatory value of which is unclear, is “no

longer good law.” In re Sealed Case, 99 F.3d 1175, 1178

(D.C. Cir. 1996); see also United States v. McKie, 951 F.2d

399, 403 (D.C. Cir. 1991) (rejecting reliance on Bryant

because “due process claims . . . are now governed by the

standards enunciated in Arizona v. Youngblood”).

Martinez Vega nonetheless argues that Bryant provides

the relevant standard because his objection is grounded not in

the general protections of the Due Process Clause, but in the

Government’s specific obligations under Federal Rule of

Criminal Procedure 16, the Jencks Act, and Brady. 7

Alternatively, Martinez Vega contends that, even under

Youngblood, missing-evidence instructions were warranted

because the Government’s bad faith can be inferred.

Specifically, despite every incentive to maintain careful

records of the identifications for subsequent use at trial, the

7

Whether Youngblood forecloses the application of Bryant in the

context of Jencks Act claims is unsettled. See McKie, 951 F.2d at

403 (leaving unaddressed “the continuing vitality of Bryant in its

original context regarding claims under the Jencks Act”). But see

United States v. Thomas, 97 F.3d 1499, 1503 (D.C. Cir. 1996)

(noting that “the actual holding in [Bryant] did not rest on the

Jencks Act” since “the court did not decide that the missing

[evidence] constituted a Jencks Act statement”).

27

DEA agents kept no such documentation. Martinez Vega

emphasizes that the exculpatory value of the untested physical

evidence in Youngblood was unknown to the agents. See 488

U.S. 56 n.* (noting that the defendant “has not shown that the

police knew the [missing evidence] would have exculpated

him when they failed to” preserve it). Here, by contrast, the

agents necessarily knew the results of their photo-array

presentations and thus had actual knowledge whether such

documents were actually (and not just potentially)

exculpatory. The conspicuous absence of evidence with

clearly “knowable” exculpatory value, Martinez Vega

concludes, points strongly to bad faith, especially given that

the same DEA agents apparently preserved marked photo

arrays used in identification procedures conducted with other

individuals.

The Government’s failure to retain records for witness

identifications—records for which the inculpatory or

exculpatory value seems obvious—is troubling. But even

assuming Youngblood applies, the erroneous denial of a

missing-evidence instruction will not require reversal if the

error is harmless. See United States v. Glenn, 64 F.3d 706,

710 (D.C. Cir. 1995). And in that regard, Martinez Vega fails

to identify how that mistake affected his defense or had a

substantial and injurious effect on his trial. Kotteakos v.

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

Vega’s identity as “Chiguiro” was established by the

testimony of multiple witnesses based on in-person

observations and interactions, wholly independent of the

missing photo arrays. See, e.g., supra pp. 21-22.

Accordingly, any error by the district court in declining to

issue missing-evidence instructions was harmless.

28

C. The “Chiguiro” Photograph

Six weeks before trial, the Government turned over a

document obtained from Colombian Military Intelligence.

The document is a printout of a PowerPoint-type slide

containing photographs of four men. Three of the men are

labeled FARC commanders in the 16th Front. The fourth

photograph shows a person (not Martinez Vega) in full

military uniform and is labeled “Angel Leopoldo Lopez, aka

Chiguiro.” J.A. 1786.

At trial, the Government called Major Guillermo Rios,

Colombian Military Intelligence’s “chief of analysis” for the

16th Front, who testified that the only names associated with

“Chiguiro” that the Colombian military had in “the files [he]

looked [at]” and “in the files that [he] received” were “Juan

Jose Martinez Vega” and “Gentil Alvis Patiño.” J.A. 1149. 8

On cross-examination, the defense showed the printout

with the “Chiguiro” photo to Rios, but he denied ever having

seen it before. Martinez Vega then filed a motion seeking all

exculpatory evidence pertaining to the printout. A few days

later, the Government advised Martinez Vega by letter that

the slide from which the printout came had been found in an

electronic storage file of the DEA Bogotá Country Office, but

that none of the current agents of that office could identify its

origin. However, agents who had previously worked in the

office stated that the slide was given to them by Colombian

intelligence around 2001 in the context of large transmissions

8

The indictment charged Martinez Vega under the aliases of

“Gentil Alvis Patiño” and “Chiguiro,” but the defense demonstrated

that Patiño was another individual with ties to other alleged FARC

leaders, and the Government eventually stipulated that Colombian

identification documents existed for a different individual named

Patiño.

29

of information on FARC members. The letter further

explained that the Government’s contacts with the Colombian

military and intelligence were also unaware of the origin of

the “Chiguiro” photograph, the slide, or the information on

the slide.

Martinez Vega argued that it was misleading for the

Government to ask Rios about his “files” and elicit that no

other person had been identified as “Chiguiro” when the

Government “knew that, at some point in time, an agency of

Colombian Military Intelligence which reported to the office

occupied by Rios, had reached the opposite conclusion.” J.A.

1381. Martinez Vega therefore proposed that the following

stipulation be provided to the jury:

The parties stipulate that Defendant Martinez [sic]

Exhibit 3 is a document which was found in an

electronic storage file of the Drug Enforcement

Administration’s Bogota Country Office. It is

believed that it was transmitted, as part of a larger

transmission of information, by Colombian Military

Intelligence in or around 2001. The DEA has no

further information about the origin of the document,

the photographs contained on it, or accuracy of the

captions to the photographs.

Id. The Government refused to so stipulate. The court also

declined to admit the printout from the slide into evidence

since it had not been identified by any witness and had not

been verified or authenticated in any way. Id. at 1688–89.

In his motion for a new trial, Martinez Vega argued that

the Government’s delayed disclosure of the printout “at a time

and under circumstances when Defendant could not ascertain

the factual basis for the document” violated Brady. J.A. 1780.

He also argued that the Government compounded the breach

30

by questioning Major Rios in a misleading way, and that the

district court failed to remedy those infractions. The court

denied the motion, finding that the printout and the sought-

after information were not material.

We review the district court’s denial of a motion for a

new trial for abuse of discretion, but evaluate de novo the

court’s assessment of whether the Government breached its

obligations under Brady. See United States v. Oruche, 484

F.3d 590, 595 (D.C. Cir. 2007).

The district court did not err in denying a new trial

because there is no reasonable prospect that earlier disclosure

of the printout or any additional information about it would

have affected the trial’s outcome. Brady requires the

Government to disclose, upon request, “evidence favorable to

an accused . . . where the evidence is material either to guilt or

to punishment.” 373 U.S. at 87. The “touchstone of

materiality” is “‘a reasonable probability’ of a different

result.” Kyles v. Whitley, 514 U.S. 419, 434 (1995) (quoting

Bagley, 473 U.S. at 678). The bottom-line question “is not

whether the defendant would more likely than not have

received a different verdict with the evidence, but whether in

its absence he received a fair trial, understood as a trial

resulting in a verdict worthy of confidence.” Kyles, 514 U.S.

at 434. “A ‘reasonable probability’ of a different result” turns

on whether the Government’s suppression of evidence

“‘undermines confidence in the outcome of the trial.’” Id.

(quoting Bagley, 473 U.S. at 678).

In this case, for evidence that there was another

“Chiguiro” affiliated with the FARC to have made any

difference, the Government’s case would have to be heavily

reliant on Martinez Vega’s use of the nickname. But the

record evidence bucks that notion. Multiple witnesses who

31

knew Martinez Vega—either as “Chiguiro” or not—identified

him repeatedly in person and testified to seeing him

transporting weapons or cocaine and interacting with leaders

of the 16th Front. The district court found that those

witnesses “did not have fleeting glimpses of the defendant.”

J.A. 2145. Rather, “they worked with him, ate meals with

him, and even lived with him,” leaving “little room for doubt

about the reliability of their identifications of him as the

person they observed engaging in conspiratorial acts.” Id.

Those witnesses personally knew Martinez Vega and

observed him in the relevant circumstances. For those

witnesses, the name that Martinez Vega went by was largely

beside the point. Thus, any revelation that another individual

affiliated with the FARC was also referred to as “Chiguiro”

would not plausibly have had any effect on the outcome of the

trial.

D. Prior Inconsistent Statement

Colonel Ignacio Gonzales Jaramillo of the Colombian

military testified that he interviewed Martinez Vega in a

Venezuelan prison. According to Gonzales Jaramillo,

Martinez Vega denied being involved in the FARC during the

initial portion of the interview, which was videotaped. But

after the video camera was turned off, Martinez Vega

allegedly began admitting his involvement with the

organization. Gonzales Jaramillo testified that the camera

was off for “20, 25 minutes, maybe half an hour” during the

interview. J.A. 1116.

Following the interview, the Colonel documented the

details of the interview. In pertinent part, his report states:

Upon asking [Martinez Vega] about his ties to

kidnapping and drug trafficking, he denied all

involvement at any time. . . .

32

The interview continued on the same line for almost

2 hours, denying his relationship with the terrorist

organization and denying his ties to kidnapping and

drug trafficking.

As the conversation progressed, facts from his past

life were brought up, thanks to information obtained

by intelligence work and, in other cases, supplied by

the informant who accompanied the delegation. The

presentation of facts made the subject begin to

contradict himself.

J.A. 1479.

During cross-examination, defense counsel confronted

Gonzales Jaramillo with the apparent contradiction between

his testimony that Martinez Vega was cooperative during the

20 or 30 minutes that the camera was off, and the report’s

statement that Martinez Vega denied any connection to the

FARC for nearly two hours. The Colonel explained that the

two-hour period referred to the entire time he was with

Martinez Vega “from the first moment I saw him until we

started talking because until the cameras were off, we didn’t

start a conversation.” J.A. 1119; see also id. at 1120 (“Yes,

from the first time we saw each other until about—until we

sat down. Less than two hours, but yes, that’s how it was.”).

Martinez Vega moved to admit into evidence a copy of

Gonzales Jaramillo’s interview report as a prior inconsistent

statement. He contends that, because the videotaped portion

of the interview did not get into the subject of the FARC,

drugs, or kidnapping, the two-hour discussion of those topics

necessarily did not begin until after the camera was turned

off.

33

The district court denied the motion, finding that it was

“not clear” that the interview report amounted to a prior

inconsistent statement since it was ambiguous whether “the

two hours” in the report referred to the length of the entire

interview, or only the time during which the camera was

turned off. J.A. 1682. The court also noted that “the jury has

heard at length . . . what allegedly the report said” during

cross-examination of Gonzales Jaramillo, id., and expressed

concern that the report elsewhere contained “exculpatory

statements of the defendant not subject to cross-examination,”

id. at 1683.

The district court’s admission or exclusion of evidence is

reviewed for abuse for discretion. See United States v.

Morgan, 581 F.2d 933, 936 (D.C. Cir. 1978). Federal Rule of

Evidence 613(b) permits the use of a witness’s prior

inconsistent statement for impeachment “if the witness is

given an opportunity to explain or deny the statement and an

adverse party is given an opportunity to examine the witness

about it.” While “direct contradiction is not essential,” the

trial court “has discretion in determining whether testimony is

inconsistent with a prior statement.” 28 Wright & Gold,

Federal Practice & Procedure, § 6203 (2d ed. 2012); see

Grunewald v. United States, 353 U.S. 391, 423 (1957) (“[T]he

question whether a prior statement is sufficiently inconsistent

to be allowed to go to the jury on the question of credibility is

usually within the discretion of the trial judge.”).

The district court did not abuse its discretion in

concluding that there was no material inconsistency between

Gonzales Jaramillo’s report and his testimony. Gonzales

Jaramillo clarified on cross-examination that, although he did

not explicitly inquire about the FARC, drugs, and kidnapping

during the videotaped portion of the interview, he did ask

Martinez Vega why he had been arrested in Venezuela. J.A.

34

1489–90 (“Why do they have you here?”; “Where did they

nab you?”; “Alright, but why? In other words, the

Venezuelan authorities arrived and what were you doing at

the time?”). In response, Martinez Vega denied knowledge as

to why the police had picked him up. Id. (“I don’t know.

They nabbed me at the farm where I was working and brought

me here.”; “I was fixing something of a pool and some

kiosks.”). Martinez Vega’s responses to additional questions

about his presence and activities in Venezuela were likewise

vague and noncommittal. Id. at 1492 (Q: “How long have

you been in Venezuelan territory?” A: “Since last year.” Q:

“Can you please be more precise . . .?” A: “I don’t remember

exactly.” . . . Q: “Beginning of the month . . . beginning of the

year.” A: “When a man brought me here to get papers and

help him work.” Q: “What man”?); id. at 1494 (Q: “Did you

go to Caracas?” A: “In a car.” Q: “In a car? With whom?”

A: “With that man.” Q: “What’s the man’s name?” A:

“Alberto.” Q: “What does Alberto look like? . . . Alberto

what?” A: “I don’t know his last name.”). Martinez Vega

was also cagey about a wound in his neck, stating at first that

it was from an operation, then explaining that he had been

shot, but by whom he did not know.

Those kinds of unresponsive exchanges are reasonably

consistent with testimony that Martinez Vega “did not

accept—he didn’t volunteer his information as to his FARC

membership,” J.A. 1119, and that “he did deny his

participation . . . [h]e kept saying that he had nothing to do, he

owed nothing,” id. at 1120. They are also not inconsistent

with the general statement in the report that Martinez Vega

denied his relationship to the FARC or any involvement in

kidnapping and drugs for two hours, particularly since he had

been arrested in Venezuela for those very things.

35

Accordingly, the district court did not abuse its discretion

in determining that the report was not a prior inconsistent

statement and declining to admit it under Rule 613(b).

Moreover, even if the exclusion of the report were error, it

was harmless given that any perceived contradiction between

the contents of the report and the Gonzalez Jaramillo’s

testimony was fully aired for the jury during cross-

examination. See United States v. Davis, 181 F.3d 147, 149

(D.C. Cir. 1999) (evidentiary exclusion harmless because,

“during the cross-examination of [the witness] the jury heard

word-for-word what he said at the suppression hearing” and

therefore the court’s refusal to admit the transcript “in no way

prejudiced [defendant] or impaired his defense”); United

States v. Bogle, 114 F.3d 1271, 1275 (D.C. Cir. 1997) (court’s

refusal to exclude prior written statement of witness was

“clearly harmless” where defense was able to impeach the

witness about the statement on cross-examination).

E. Sentencing Enhancement

At sentencing, the district court increased Martinez

Vega’s base offense level by three for being a “manager or

supervisor” in the narcotics conspiracy. Martinez Vega

challenges the enhancement for lack of evidence that he

supervised other participants in the conspiracy.

In reviewing a sentencing decision, “[p]urely legal

questions are reviewed de novo; factual findings are to be

affirmed unless clearly erroneous; and we are to give due

deference to the district court’s application of the [sentencing]

guidelines to facts.” United States v. Day, 524 F.3d 1361,

1367 (D.C. Cir. 2008) (internal quotation marks omitted).

The Government must demonstrate that a sentencing

enhancement is warranted by a fair preponderance of the

evidence, United States v. Bapack, 129 F.3d 1320, 1324 (D.C.

36

Cir. 1997), though that evidence may be circumstantial,

United States v. Graham, 162 F.3d 1180, 1183 (D.C. Cir.

1998).

Section 3B1.1 of the Sentencing Guidelines permits the

district court to increase a defendant’s base offense level due

to his “aggravating role” in an offense. U.S.S.G. § 3B1.1.

“The magnitude of the enhancement varies with the

culpability of the defendant,” Graham, 162 F.3d at 1182–83,

as well as the scope of the criminal activity. As relevant here,

a defendant is subject to a three-level increase for being “a

manager or supervisor (but not an organizer or leader)” of a

criminal activity that “involved five or more participants or

was otherwise extensive.” U.S.S.G. § 3B1.1(b); see Graham,

162 F.3d at 1183.

The commentary to Section 3B1.1 instructs the

sentencing court to consider several factors in determining

whether to apply an enhancement, including “the exercise of

decision making authority, the nature of participation in the

commission of the offense, the recruitment of accomplices,

the claimed right to a larger share of the fruits of the crime,

the degree of participation in planning or organizing the

offense, the nature and scope of the illegal activity, and the

degree of control and authority exercised over others.”

U.S.S.G. § 3B1.1 application note 4.

“Mere control over a scheme rather than over a

participant in a scheme” is not enough to warrant an

aggravating role enhancement. Bapack, 129 F.3d at 1324

(internal quotation marks omitted). Instead, the guidelines

require that “the defendant must have been the organizer,

leader, manager or supervisor of one or more participants” in

the criminal activity. U.S.S.G. § 3B1.1 application note 2

(emphasis added). A “participant” is a “person who is

37

criminally responsible for the commission of the offense, but

need not have been convicted.” Id. § 3B1.1 application note

1. An individual is “‘criminally responsible’ under § 3B1.1

only if ‘he commit[s] all of the elements of a statutory crime

with the requisite mens rea.’” United States v. McCoy, 242

F.3d 399, 410 (D.C. Cir. 2001) (quoting Bapack, 129 F.3d at

1325). “This does not mean, however, that to qualify as a

‘participant’ a person must be found criminally responsible as

a principal or culpable in the same crime of which the

supervising defendant was convicted.” Bapack 129 F.3d at

1325 (emphasis added). Instead, “a party who gives knowing

aid in some part of the criminal enterprise is a ‘criminally

responsible party.’” Id. (quoting United States v. Hall, 101

F.3d 1174, 1178 (7th Cir. 1996)) (emphasis added).

Accordingly, to justify the three-level managerial-role

enhancement, the Government had to prove by a

preponderance of the evidence that Martinez Vega (i)

managed or supervised (ii) at least one “participant” who was

criminally responsible for an offense (iii) in a criminal

activity that involved five or more participants or was

otherwise extensive. The district court adequately assessed

the first element, but failed to make the required findings on

the second and third elements.

As to the first element, the district court pointed to record

evidence showing that Martinez Vega “had significant

responsibility given to him by the leadership of the FARC”

and exercised “decision-making authority on selling these

drugs, and transferring them for weapons and getting the

weapons.” Sentencing Tr. 45–46. The court recounted the

testimony of Parra Diaz, which had “suggest[ed] that the

defendant may have a troop” and had described “Mr.

Martinez Vega as having guards . . . suggest[ing] that there

were many supervised.” Id. at 40. The court also relied upon

38

Ortiz’s testimony to the effect that “the person in charge of

that group of drivers and all was ‘Chiguiro,’ that is the

defendant,” id. at 42, and Restrepo’s testimony that “the

defendant was like our commander, our immediate

commander,” and “the defendant actually assigned them

where to go,” id. at 42–43. The record thus amply supported

the district court’s conclusion that Martinez Vega had

sufficient control and authority over other individuals to be a

manager or supervisor.

But absent from the district court’s analysis is any

consideration of the second element necessary for the

enhancement: whether any of the persons allegedly

supervised by Martinez Vega qualified as a “participant”

under Section 3B1.1. The parties specifically contested that

issue at the sentencing hearing. The Government asserted that

“any individuals who are engaged in moving cocaine and

weapons to a guerilla group in the jungles in Colombia would

have, by definition, been aware of the criminal nature of the

their activities, and they would have been participants as

understood by the guidelines.” Sentencing Tr. 26. Martinez

Vega countered that the Government had not shown that the

workers who helped him load and unload sacks would have

known that the sacks contained cocaine base or that it was

being exported to the United States. Id. at 37. The district

court, however, did not address the issue and made no finding

that one or more of those supervised individuals had the

requisite criminal mens rea and culpability to count as

“participants.” 9

The district court’s assessment of the third element also

came up short. The court found that Martinez Vega’s

9

Martinez Vega argues (Br. 71) that “participants” must have “the

same culpable mens rea” as their supervisor. Bapack holds

otherwise. 129 F.3d at 1325.

39

“activities were otherwise quite extensive in this area” of

“transport[ing] . . . narcotics and weaponry.” Sentencing Tr.

47. But the Guidelines’ “otherwise extensive” inquiry

pertains to the scope of the criminal activity as a whole, not

the defendant’s particular involvement in it. See U.S.S.G.

§ 3B1.1(b) (asking whether “the criminal activity involved

five or more participants or was otherwise extensive”)

(emphasis added). That is, the criminal activity must either

involve “five or more participants” or be “otherwise

extensive” in that it involves fewer than five criminally

culpable “participants,” but could include a number of

“unknowing outsiders.” United States v. Wilson, 240 F.3d 39,

49 (D.C. Cir. 2001) (“otherwise extensive” demands “a

showing that an activity is the functional equivalent of an

activity involving five or more participants”) (citation

omitted). On that point, the district court made no finding.

Accordingly, we vacate Martinez Vega’s sentence and

remand to the district court for resentencing in view of the

legally required elements for a “manager or supervisor”

enhancement. In so doing, we reach no conclusion as to the

sufficiency of the existing record on those issues, but

emphasize that the review on remand is constrained to the

existing record. 10

III. Issues Raised by Cuevas

Cuevas raises five arguments specific to the case against

him, namely, that the district court (i) should have granted

10

Martinez Vega also asserts that he was eligible for a two-level

reduction as a “minor participant” under Section 3B1.2 of the

guidelines. The district court declined the decrease, finding

sufficient evidence that Martinez Vega played a significant role in

the conspiracy, Sentencing Tr. 45–46, and on this record we find no

error in that ruling.

40

Cuevas’s motion for a mistrial after Garrido testified about a

previously undisclosed conversation he had with Cuevas; (ii)

should not have admitted into evidence recordings of

Cuevas’s phone calls; (iii) violated the Confrontation Clause

by limiting Cueva’s questioning of cooperating witnesses; (iv)

wrongly permitted the exhibition of a video depicting a police

raid; and (v) erroneously applied sentencing enhancements for

being a manager or supervisor and for possession of a firearm.

None has merit.

A. Garrido’s Reference to Cuevas as “Mincho”

Throughout the trial, the Government alleged, and

Cuevas denied, that Cuevas was the FARC’s prominent

cocaine manufacturer known as “Mincho.” After two

witnesses had identified Cuevas as Mincho, the Government

called Garrido to testify about Cuevas’s extradition. The

following exchange occurred:

Q: When did you first encounter Mincho, or the

defendant Cuevas Cabrera that day?

A: I went inside that area while he was being

processed by the Colombian authorities. I went in. I

asked, “Are you Mincho?” He said, “Yes.” I verified

his name. Erminso Cuevas Cabrera.

Cuevas objected to the testimony on the ground that Cuevas’s

alleged statement to Garrido had not been disclosed during

discovery, and he requested that the testimony be stricken.

The court sustained the objection and issued the following

instruction to the jury:

Ladies and gentlemen, Agent Garrido mentioned

that when he spoke to Mr. [Cuevas] Cabrera, he

41

asked him if he was Mincho, and he said, yes, I am

Mincho. I am going to strike that testimony. That

was not previously announced as evidence in the

case about any statements that Mr. Cabrera may

have made that he was Mincho. So I am going to

strike that from the testimony, have you disregard

that statement by—allegedly made by Mr. Cabrera.

Cuevas nevertheless moved for a mistrial, which the

district court denied. Cuevas now argues the denial was error

because the testimony was highly prejudicial and because the

court’s curative instruction, by repeating the offending

testimony and by implying its exclusion was due only to a

technicality, exacerbated rather than mitigated the prejudice.

A “mistrial is a severe remedy—a step to be avoided

whenever possible, and one to be taken only in circumstances

manifesting a necessity therefor.” United States v.

McLendon, 378 F.3d 1109, 1112 (D.C. Cir. 2004). The

district court’s principal consideration in ruling upon a motion

for mistrial is the extent of prejudice suffered by the

defendant, and we review the district court’s denial only for

abuse of discretion. Id.

In this case, it is not obvious why Garrido’s stricken

testimony was prejudicial considering that at least two other

witnesses previously had identified Cuevas as “Mincho,” and

the evidence established that “Mincho” is a common

nickname for Erminso. Further, whatever harm may have

been done by the testimony was promptly undone by Judge

Hogan’s curative instruction. “We normally presume that a

jury will follow an instruction to disregard inadmissible

evidence inadvertently presented to it, unless there is an

overwhelming probability that the jury will be unable to

follow the court’s instructions.” Greer v. Miller, 483 U.S.

42

756, 766 n.8 (1987) (internal quotation marks and citation

omitted). Neither Judge Hogan’s repetition of the offending

testimony (which was necessary to specify the objectionable

content for the jury after numerous intervening questions) nor

his stated reason (which was no more technical than any other

evidentiary ruling) created such an “overwhelming

probability” here.

B. Admission of Cuevas’s Phone Calls

In 2004 a federal judge in the Southern District of Florida

authorized telephone wiretaps based upon a DEA agent’s

affidavit stating that the “target telephones will be located

overseas” and that the “intercepts will be conducted from, and

monitored in, the Southern District of Florida.” A

confidential DEA source then provided the monitored phones

to targets in Colombia. The Government intercepted Cuevas

discussing his operations on two calls, which it played at trial

during the testimony of the other party to the recorded calls.

Cuevas argues the tapes were inadmissible because

federal law prohibits foreign surveillance and because the

federal judge who approved the wiretaps lacked jurisdiction to

do so. Cuevas forfeited these arguments by failing to raise

them in the district court, so we consider them at most for

plain error. United States v. Williams, 773 F.3d 98, 105 (D.C.

Cir. 2014); see also United States v. Burroughs, 810 F.3d 833,

837–38 (D.C. Cir. 2016).

First, Cuevas’s contention that extraterritorial

surveillance is prohibited because “Title III . . . has no

extraterritorial force” reflects a fundamental

misunderstanding of the role of the statute. Title III of the

Omnibus Crime Control and Safe Streets Act of 1968

“imposes . . . limitations on the use of electronic

43

surveillance.” United States v. Chavez, 416 U.S. 580, 580

(1974). If it does not apply extraterritorially, then

government surveillance outside the United States is

unconstrained, not forbidden, by Title III.

Second, Cuevas’s contention that a “listening post” in the

Southern District of Florida was insufficient to confer

jurisdiction upon the federal court there is unavailing if only

because every circuit that has considered the question has

deemed a listening post sufficient. See, e.g., United States v.

Luong, 471 F.3d 1107, 1109 (9th Cir. 2006); United States v.

Rodriguez, 968 F.2d 130, 136 (2d Cir. 1992). With no

“controlling precedent” or “other absolutely clear legal norm”

to support Cuevas’s position, the purported error by the

district court, if error it be, cannot be deemed plain. See

United States v. Nwoye, 663 F.3d 460, 466 (D.C. Cir. 2011).

C. Cross-Examination of Cooperating Witnesses

At trial, former members of the FARC testified for the

Government. 11 Cuevas learned that these witnesses wore

monitoring devices on their ankles both for their own safety

and to prevent them from fleeing and illegally remaining in

the United States. Cuevas sought to cross-examine the

witnesses about the devices on the ground that they revealed

potential bias. After consulting with the U.S. Marshal

Service, the district court found the anklets were “a security

practice used with many witnesses,” and were not being used

because the witnesses were “under charges or otherwise

untrustworthy.” The court concluded that the devices had “no

11

These witnesses were known as “reinsertados” because they had

been reintegrated into civil society through a Colombian

government program that grants members of the FARC immunity

for past crimes in exchange for cooperation with law enforcement.

44

relevance” to the witnesses’ credibility and that inquiry would

“lead into other areas . . . far afield from what is relevant in

this trial,” such as the threat Cuevas himself posed to safety of

the witnesses. Accordingly, the judge prohibited Cuevas from

cross-examining the witnesses about the devices.

Cuevas argues the limitation violated the Confrontation

Clause of the Sixth Amendment to the Constitution of the

United States. Although that Clause guarantees a criminal

defendant “the right . . . to be confronted with the witnesses

against him,” a district judge has

wide latitude insofar as the Confrontation Clause is

concerned to impose reasonable limits on . . . cross-

examination based on concerns about, among other

things, harassment, prejudice, confusion of the

issues, the witness’ safety, or interrogation that is

repetitive or only marginally relevant.

Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). We

review the district court’s limitation of cross-examination for

abuse of discretion, with the central inquiry being “whether

the jury would have received a significantly different

impression of the witness’s credibility had defense counsel

been permitted to pursue the [disallowed] line of

questioning.” United States v. Wheeler, 753 F.3d 200, 205

(D.C. Cir. 2014).

The district court did not abuse its discretion here.

Questions about the devices would be of no incremental value

to the defendant in this case, and the district court reasonably

concluded that such questions would “stray far afield from

what [was] relevant in this trial.” The jury was already aware

that all the former FARC members who testified were

admitted participants in a cocaine trafficking organization;

45

that several had admittedly engaged in guerilla warfare; that

some were admitted murderers; and that all had been spared

prosecution in return for their cooperation with law

enforcement. With all this laid bare, it is highly unlikely that

questions about the monitoring devices would have left the

jury with a “significantly different impression of the

witness’s” propensity to bias or motivation to lie on behalf of

the Government. Id.

D. Admission of the Video

At trial, Lieutenant Colonel Alvarez Ochoa of the

Colombian National Police testified as an expert on

Colombian cocaine laboratories and the organization of the

FARC. Over Cuevas’s objection, the Government introduced

a video of a police raid, in which Alvarez participated, on a

cocaine laboratory unconnected to Cuevas. The video

depicted a typical cocaine lab in the jungle, the recovery of

seven tons of cocaine “base,” the demolition of the laboratory

with explosives, and helicopters that provided armed air

support. It is not clear from the testimony whether the video

depicted any violent resistance from the operators of the

laboratory, but Cuevas claims it did. Cuevas argues the video

of a raid on a cocaine lab outside either defendant’s territory

was irrelevant and highly prejudicial, and it should have been

excluded under Federal Rule of Evidence 403.

Rule 403 permits exclusion of otherwise admissible

evidence if “its probative value is substantially outweighed by

a danger of . . . unfair prejudice, confusing the issues, [or]

misleading the jury.” We review a district court’s

determination under Rule 403 “with great deference,

reversing only for grave abuse of discretion.” United States v.

Clarke, 24 F.3d 257, 265 (D.C. Cir. 1994). In this case,

Cuevas has failed even to offer any account of how the video

46

caused him any prejudice, let alone sufficient prejudice to say

the district court gravely abused its discretion.

E. Sentencing Enhancements

Cuevas raises the same objection to the three-level

“manager/supervisor” sentencing enhancement as does

Martinez Vega, namely that the district court erred in

applying the enhancement because there was insufficient

evidence of the culpability of anyone Cuevas supervised.

Unlike Martinez Vega, however, Cuevas was expressly found

by the district court to have supervised numerous culpable

individuals. We are bound by this factual finding unless it is

clearly erroneous, see United States v. Henry, 557 F.3d 642,

645 (D.C. Cir. 2009), which it is not. The evidentiary record

here, including Maria Santiago’s testimony that she worked

alongside 80 employees in a cocaine laboratory run by

Cuevas, supports the court’s finding.

Cuevas also objects to the imposition of a two-level

enhancement, pursuant to U.S.S.G. § 2D1.1(b)(1), for

possession of a firearm during a drug offense. The district

court, however, expressly found that Cuevas carried a weapon

while running the lab, and this finding is far from clearly

erroneous. Two witnesses testified to having seen Cuevas

carry a handgun while committing drug offenses. Cuevas

challenges the credibility of those witnesses, but the “district

court’s credibility determinations are entitled to the greatest

deference from this court on appeal.” Carter v. Bennett, 840

F.2d 63, 67 (D.C. Cir. 1988). Cuevas gives us no basis for

disturbing the court’s finding.

47

IV. Conclusion

We affirm the convictions of Juan Martinez Vega and

Erminso Cuevas Cabrera. We also affirm Cuevas’s sentence,

but we vacate Martinez Vega’s sentence and remand to the

district court for resentencing consistent with this opinion.

So Ordered