United States v. Espinal-Almeida, 699 F.3d 588 (1st Cir. 2012):

An undercover United States Customs Task Force operation involving efforts on land, at sea, and in the air, ended with the arrests of the defendants, Saturnino Tatis-Núñez ("Tatis"), César Hernández-De la Rosa ("Hernández"), Carlos Espinal-Almeida ("Espinal"), and Jacobo Peguero-Carela ("Peguero"). Each was indicted on, and ultimately convicted of, one count of conspiracy to possess with intent to distribute, and one count of conspiracy to import, 418 kilograms of cocaine. They all appeal, raising a myriad of challenges that span jury voir dire to sentencing. After carefully considering each claimed error, we affirm. **

Sergeant Richard Avilés ("Avilés"), a twenty-six-year veteran of the Puerto Rico Police Department and eight-year member of the U.S. Customs and Border Protection ("Customs") Task Force, received information that certain individuals were looking to recruit boat captains for the purpose of transferring drug loads via water from the Dominican Republic to Puerto Rico. Avilés was assigned to go undercover as a boat captain, "Tony," in order to infiltrate the drug trade.

As part of the undercover operation an informant working with law enforcement took Avilés to meet Orlando Carrero-Hernández ("Carrero") on January 10, 2008 to discuss the prospect of Avilés's working for Carrero and picking up a drug load. This meeting, which took place in Puerto Rico, was photographed and recorded. At the meeting, Avilés signed on to pick up 600 kilograms (or kilos) of cocaine from another boat in the middle of the ocean. In a subsequent phone call with Carrero the amount was reduced to 300 kilos. ***

After some hits and misses, the drug exchange finally took place on January 25, 2008. On that day, Avilés met with Carrero and Joaquiín Lassalle-Velázquez ("Lassalle"). Carrero gave Avilés $450 for fuel, a piece of paper with the coordinates of where the two boats would meet at sea, and the password to signal to the other boat crew carrying the drugs.

After the meeting, Avilés returned to his office and made a photocopy of the coordinates and also met another officer who was to accompany him on the undercover ("UC") boat. Together they headed to the UC boat where they met up with two other officers who would be posing as the crew. Avilés briefed the trio and the two officers who were going to pilot the boat plugged the coordinates Avilés had received from Carrero into the UC boat's global positioning system ("GPS") device. The UC boat set off to sea to meet the mothership.

Footnote 3. "Mothership" is a law enforcement term used to refer to the target of an investigation. In this case, a boat that was suspected of carrying contraband.

Avilés and his crew reached their destination around 8:00 p.m. Encountering turbulent waters, they circled around the area for approximately one hour. Then Avilés "noticed a yola in the sea" and heard voices. Avilés yelled out in the darkness, "hey, man -- hey, man. You, Domi." A voice replied, "what's going on, Bori?" Avilés shouted back, "I'm coming, coming from Chino," and then the password, "Chino sends me." "Immediately, there was a whole bunch of . . . noise" and the yola "slowly got closer" to the UC boat.

Footnote 4. A yola is a small fishing boat. For purposes of this opinion, reference to the "yola," "mothership," and "michera" will be used interchangeably.

***

By 9:15 p.m. the two boats were floating in tandem. Using only their hands and a pole, the two boats managed to stay close enough to keep the drugs from falling into the water. According to Avilés, the crew of the mothership would put the drugs on the edge of their boat and then Avilés would grab the package and put it on the UC boat's floor. At one point during the exchange, a crew member from the mothership accidentally threw one of the kilos on top of Avilés's hand. Avilés shouted out, "shit, Domi. You broke my hand. You broke my hand." Immediately a light in the UC boat was turned on and Avilés was able to see the crew member (later identified as Espinal), who stood directly in front of him. ***

Meanwhile Victor Cancel ("Cancel"), a Customs aviation enforcement officer, was also assigned to assist in the undercover operation. Using aircraft equipped with special sensors, Cancel routinely patrols the coastal waters of Puerto Rico and the Virgin Islands in order to detect and prevent illegal immigrant and drug trafficking. On this particular mission, Cancel was part of a four person aircraft crew and, more specifically, was the camera operator. The aircraft crew was given instructions "to fly to the area and locate and track the mothership," "observe the sea transfer," and "follow the mothership until [it was] intercepted by the U.S. Coast Guard." In other words, Cancel and the crew were told to stay with the mothership "at all times."***

After the exchange was complete, the UC boat and michera went their separate ways and Cancel and his crew (in accordance with their instructions) stayed with the michera. They tracked it, while giving information about its location to a waiting U.S. Coast Guard cutter. Cancel and the crew continued to observe and take pictures of the michera as it was intercepted by the cutter, and boarded by Coast Guard officers. After observing the interdiction, [**10] the aircraft flew off to support the second part of the mission -- filming the on the beach drug drop-off. ***

Jaime Cabán Morales ("Cabán") was one of the Coast Guard officers aboard the cutter. His job was to "move in and apprehend the suspects" after the air crew gave word the drug exchange had been completed. Once word came, Cabán and three other officers deployed in a small inflatable boat to the mothership and arrived sometime around 10:40 p.m. Identifying himself as a Coast Guard officer, Cabán ordered all onboard "to keep their hands up where [he could] see them." Cabán and his crew boarded the mothership and found the four defendants.

After handcuffing the four, Cabán spoke with the defendants who claimed to be out on a fishing trip. They said they had headed out, and obtained a fishing permit, from a marina in the Dominican Republic. None of the defendants had identification or registration for the boat. Cabán asked about weapons on board and he was told there was one, a 9 mm gun, which was located and secured. Cabán and the officers then performed a sweep of the boat, recovering ammunition, a GPS, and four cell phones. Cabán found only minimal fishing equipment and no fish, though he did find a fishing permit, which had been issued from the Dominican Republic. ***

The defendants were each indicted on one count of conspiracy to possess with intent to distribute a controlled substance (21 U.S.C. § 841) and one count of conspiracy to import a controlled substance (21 U.S.C. §§ 952, 960, and 963). The four defendants were tried together, with trial starting on September 14, 2009. The defense theory, as evidenced by opening statements, was that the defendants were wrongfully arrested fisherman out on an innocent fishing trip. Defense counsel theorized that Cancel and the air surveillance team momentarily lost sight of the actual mothership after the drug exchange had occurred. They claimed the air team then caught sight of the defendants' fishing boat and wrongfully assumed it was the mothership.

The government painted a different picture during the five day trial. It presented evidence that pointed to the defendants' guilt. Those involved in the overall undercover and interdiction operation were called as witnesses, including Avilés, Cancel, and Cabán. To rebut the wrongfully-targeted-boat theory, Cancel testified that he and the aircraft crew never lost sight of the michera because they tracked it the entire time with the aircraft's camera. Still pictures taken by that camera were introduced, showing the michera before and after the drug exchange, and Cancel testified that these photographs all depicted the same boat. The government also introduced the data extracted from the michera's GPS (much more on this later) and video taken by Cancel (more on this too). At the close of the government's case, all defendants moved for a judgment of acquittal. The district court denied the motions. The defendants then sought to call a maritime expert witness, however, the court would not allow the testimony. The defense had no other witnesses to call and no evidence to present, and so each side gave its closing argument. After about an hour and a half, the jury returned guilty verdicts for all four defendants on both counts. These appeals followed.***

Footnote 9. Espinal, in addition to advancing his own arguments, seeks to join in the other co-defendants' arguments pursuant to Fed. R.App. P. 28(i). He has failed to do so properly. This court has stated that "[a]doption by reference cannot occur in a vacuum and the arguments must actually be transferable from the proponent's to the adopter's case." States v. Brown, 669 F.3d 10, 16 n.5 (1st Cir. 2012). Further, "issues that are adverted to in a perfunctory manner absent developed argumentation are waived." Id. In this case, Espinal's attempt to join in the other co-defendants' arguments could not have been more perfunctory -- he merely stated that he "joins in any and all other arguments raised by the other criminal co-defendants . . . that . . . are applicable to his case." Accordingly, Espinal's "attempted arguments by reference are forfeited." Id.***

At trial, the items seized from the michera were introduced into evidence. At a bench conference, the attorneys for Tatis and Peguero challenged the chain of custody of this evidence. In response, the district court judge spontaneously stated: "I have no doubt in my mind that this is the gun, the bullets, and the GPS. And for that reason, I admitted it into evidence. The evidence is overwhelming to that respect, okay?" Tatis's counsel responded, "Judge, you speak so loud that the jurors . . . the jurors heard you." The judge stated, "I'm sorry. I'm trying not to . . . Ok. Very well." The jury was not polled to determine whether any jury member actually heard the comment. No curative instruction was requested and none was given by the court.***

E. Authentication of GPS Evidence

The GPS device that was seized from the mothership was admitted into evidence after being identified by Cabán, the Coast Guard officer who had arrested the defendants on the mothership, and Ramos, the ICE officer who had taken custody of the GPS on land. José Durand ("Durand"), a Customs forensic scientist who is "in charge of working all evidence that arrives at the lab related to portable media," was then called to testify. Durand had retrieved the GPS's data and, employing Garmin (the manufacturer of the GPS) and Google Earth software, had analyzed the GPS's data.

At trial, the GPS's data, in paper and compact disc form, was admitted into evidence. Durand then loaded the data into the Garmin software and onto a computerized map depicting Puerto Rico, the Dominican Republic, and the waters in between. Durand then pointed out and marked on the map the GPS's track points, which revealed where the GPS (and thus the michera) was located at various times during the night of the drug exchange. During this testimony the government showed the jury previously admitted photographs of the michera, which were taken from the air by Cancel. The photographs -- which indicated the coordinates of the photographed area and the time the photograph was taken -- showed that the photographed boat and the GPS were at similar locations at similar times.

Durand then loaded the GPS's data into the Google Earth software, which resulted in a red line that depicted the michera's course during the night in question. He then plotted on the map the coordinates of the boat Cancel was following and marked these with a white arrow. Again the GPS's coordinates and the coordinates of the photographed boat matched up. Hard copy versions of the marked-up Google Earth maps were admitted into evidence.

On appeal, Espinal argues that (1) the GPS device and (2) the GPS evidence (i.e., the GPS data and the software produced maps with the michera's trajectory) were not properly authenticated and therefore should not have been admitted by the district court. We take each contention in turn.

1. GPS Device

With regard to the device itself, Espinal claims that there was nothing to distinguish the GPS that was introduced at trial from any other Garmin GPS on the market, and the GPS's chain of custody was suspect. Espinal did not object to the GPS's admission at trial and so we review for plain error. See United States v. Shoup, 476 F.3d 38, 42 (1st Cir. 2007).

Our inquiry is guided by Federal Rule of Evidence 901, which states that in order to "satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." Fed. R. Evid. 901(a). This does not mean that the proponent must rule out all possibilities inconsistent with authenticity, rather "the standard for authentication, and hence for admissibility, is one of reasonable likelihood." United States v. Savarese, 686 F.3d 1, 11 (1st Cir. 2012).

Evidence is properly admitted if it is "readily identifiable by a unique feature or other identifying mark." United States v. Luna, 649 F.3d 91, 103 (1st Cir. 2011). If that is not the case, or if the evidence is susceptible to alteration, "a testimonial tracing of the chain of custody" is needed. Id. The time for authenticating evidence is before it is admitted; however, if evidence is admitted prematurely, a new trial is not warranted when later testimony cures the error. See id. at 103-04. We turn to the record evidence.

Prior to the GPS device being admitted into evidence, the following testimony was elicited. Cabán testified that he and his crew seized a GPS from the mothership the night of the interdiction. He then directed Officer Aarón Riíos, a member of his crew, to transfer the GPS from the mothership to the Coast Guard cutter. The boats then headed to Mayagüez -- Cabán and his crew in the mothership and other Coast Guard personnel in the cutter with the GPS and other seized items. When presented with the GPS that the government sought to introduce into evidence, Cabán confirmed that it was the GPS he had seized that night, stating he recognized the GPS based on its "gray front plate" and brand, Garmin.

Ramos also offered testimony about the GPS. Ramos testified that he met up with the Coast Guard officers in Mayagüez and took custody of the GPS. Ramos prepared a Customs Form 6051 ("Form 6051"), which is a custody receipt used for seized property and evidence. He indicated the GPS's serial number on the form. Another agent then signed for the evidence. The government presented Ramos with Form 6051 at trial and he reviewed it. Ramos was then shown the GPS and asked whether it was the same one he had received from Coast Guard officers that night. He said yes and that he knew this because the serial number on the GPS corresponded with the serial number on the Form 6051. He then read the serial number into the record.

Based on this evidence, we find that the GPS was properly authenticated. Said another way, there is a reasonable likelihood that the GPS was what the government purported it to be. Cabán, the first to come into contact with the GPS, identified it based on its appearance and brand. Ramos identified the GPS by its serial number, which he had recorded when he received the GPS. The testimony of Cabán and Ramos established how the GPS got from the mothership to Ramos. The district court did not commit any error, let alone an obvious one, in admitting the GPS.

2. GPS Data and Analysis

As we said, the remainder of Espinal's authentication challenge is aimed at the data generated by the GPS (the hard copy report and CD) and the software produced analysis of this data. His basic contention is that the government did not establish the accuracy or reliability of the processes employed by the GPS itself or the Garmin and Google Earth software. He also claims that due to the specialized and technical nature of the GPS evidence, expert testimony (as opposed to Durand's lay testimony) was needed to authenticate the evidence. Espinal says that absent such a foundation, the GPS evidence should have been excluded. Espinal did not preserve his objection below and so we review for plain error. See Shoup, 476 F.3d at 42.

Federal Rule of Evidence 901(b)(9), which Espinal relies on, is the provision "typically . . . employed to authenticate data generated by a mechanism." 31 Wright & Gold, Federal Practice and Procedure § 7114 (2012). It provides an illustrative authentication technique, which is that the proponent may offer evidence "describing a process or system and showing that it produces an accurate result." Fed. R. Evid. 901(b)(9). Considering this issue, we have explained that "evidence derived from the operation of a machine or instrument normally depends for its validity on the premise that the device was in proper working order." United States v. Doyon, 194 F.3d 207, 212 (1st Cir. 1999). A court may however take judicial notice of the foundational facts if the evidence resulted from "a process or system that is generally known and accepted as accurate." 31 Wright & Gold, Federal Practice and Procedure § 7114 (2012).

Here the trial judge did not take judicial notice of any foundational facts but it is clear, based on comments made by the judge, that she viewed GPS technology as commonplace (i.e., "Do you know how many thousands of GPS are in the market today?"; "Every single luxury car has one."; "I have one in my pocket right now."). And the judge distinctly told counsel that she did not think expert testimony was needed with regard to reading and plotting coordinates from the GPS (i.e., "You don't have to be a rocket scientist to read a GPS."; "My nine year old can do that."; "You don't have to be an expert to plot on a nautical map.") While GPS technology is prevalent in our society, we are not convinced that the ability to read and plot coordinates from a GPS is as banal as the district court made it out to be, and we think a better foundation could have been laid for the GPS data and software generated maps. That being said, the district court's decision to admit the evidence, absent more foundational evidence and an expert witness, does not constitute an obvious error. Again we take a look at the evidence.

Prior to the admission of the data, Durand set forth his qualifications. He testified that he has been a forensic scientist with Customs for eight and a half years and has been in charge of "working all the evidence that arrives at the lab related to portable media," including GPS, for a year and a half. Durand had been specially trained with respect to GPS devices and had analyzed ten to twelve GPS devices during his time with Customs.

Durand then testified about the process employed by the GPS device itself. He explained that a GPS "contains data concerning the location of the GPS," and that this location is determined by the GPS hooking up with a satellite, with twenty-seven such satellites currently revolving around the world. He testified that GPS devices typically capture latitude, longitude, days, hours, height, and altitude. Durand explained that he had analyzed the GPS seized from the michera and based on pictures he had taken and the existence of corresponding serial numbers he confirmed that the GPS introduced at trial was the GPS he analyzed. When presented with the hard copy report of the GPS's data, Durand explained it was a report of "the data I collected from the GPS." The CD, he noted, contained "the GPS digital data" plus "the hard copy" report in digital form.

At this point in Durand's testimony, the GPS data was admitted into evidence. Thereafter he got into more specifics, explaining that a GPS produces way points (user stored information), routes (the coming together of way points), and tracks (a series of non-user created data that is the result of the GPS's connection to a satellite, which shows where the GPS is located). Durand added that elapsed time, the distance traveled, the area covered, and average speed is also recorded on the GPS.

With regard to the process employed by the Garmin software, the following evidence came in. Durand testified that he had Garmin software that could analyze the GPS data contained on the disc. At that point, the Garmin software generated map was published to the jury. Durand then explained that when he selected a particular activity log, which itself contained multiple track points from the GPS, a yellow dot was generated on the computerized map. Durand then walked the jury through the GPS's data, charting the michera's path on the map. At one point during this exercise, Durand was asked about a sixteen-minute gap in the GPS's transmission and he explained that GPS devices can lose communication with satellites for various reasons (e.g., because they are shut off or because of atmospheric conditions).

As for the Google Earth software, Durand confirmed that this software could not only show the data from the GPS but also plot additional coordinates. Durand indicated that he could (and he did) call up the GPS's data with the software. He testified that one could plot specific coordinates, including pre-programmed ones, with the software, which Durand did as well. He further explained that the software produced a red line that indicated the data from the GPS and the additional coordinates (the photograph coordinates) were indicated with a white arrow. Durand went through and plugged in these additional coordinates for the jury. The marked-up maps generated by Google Earth were introduced into evidence. Durand was then asked whether GPS devices have a margin of error and he explained that commercial GPS devices have an intentional margin of error from five to fifteen meters so that they will not be as accurate as those possessed by the government for national security reasons.

Footnote 22. As the preceding narrative shows some of the authenticating testimony came in before the actual physical exhibits were introduced and some came in after. In instances where evidence is admitted prematurely but is authenticated with later testimony, there is no reversible error. See Luna, 649 F.3d at 103-04. We are not saying that this is what happened here, but for this reason we are not going to differentiate between evidence that came in before and after.

The record reveals that Durand offered a good amount of testimony about the processes employed by the GPS, the Garmin software, and the Google Earth software. He was not specifically asked, and did not precisely testify, whether the GPS and the software were in good working order or whether he was confident they produced accurate results. Nonetheless it is reasonable to infer that Durand would have said that the GPS and software were working fine and turning out accurate results.

Footnote 23. It would have been better practice for the prosecutor to lay such a foundation, but its absence does not mean that the evidence should have been excluded.

He showed no hesitation, and no concerns as to accuracy or reliability, when offering the GPS's data or when plotting it with the software. Furthermore, he spoke to the reliability of GPS technology in general -- that GPS devices can lose communication with satellites and that commercial GPS devices have an intentional margin of error. Also the fact that the GPS data and the software plotted courses were consistent with the location of the boat photographed by Cancel underscored the processes' accuracy. We are satisfied that the GPS data and software generated evidence were adequately, if not extensively, authenticated.

As for Espinal's claim that proper authentication required expert testimony, we do not see things the same way. There are indeed situations where this court has said that expert testimony is a must. See, e.g., Hochen v. Bobst Group, Inc., 290 F.3d 446, 451 (1st Cir. 2002) (finding that expert testimony was needed when the nature of a defect, and its causal connection to a printing press explosion, was complicated). However, this is not one of them. The issues surrounding the processes employed by the GPS and software, and their accuracy, were not so scientifically or technologically grounded that expert testimony was required to authenticate the evidence, and thus the testimony of Durand, someone knowledgeable, trained, and experienced in analyzing GPS devices, was sufficient to authenticate the GPS data and software generated evidence. See, e.g., United States v. Thompson, 393 F.App'x. 852, 858-59 (3d Cir. 2010) ( finding that a lay witness's testimony concerning the operation of a GPS device, including authentication of the GPS's data, was properly allowed by the trial court).

Given Durand's testimony about the processes employed by both the GPS and the software, his lack of reservation as to the data, his confident use of the software, the fact that a serial number comparison confirmed that the GPS Durand analyzed was the same one confiscated by Ramos, and the fact that the coordinates from the GPS and Cancel's photographs were similar, we find that the reasonable likelihood standard for authentication of the data and software generated maps was satisfied. See Asociación de Periodist as de Puerto Rico v. Mueller, 680 F.3d 70, 79 (1st Cir. 2012) ("so long as the evidence is sufficient to allow a reasonable person to believe the evidence is what it purports to be, it is left to the fact finder to determine what weight it deserves") (internal quotation marks and citation omitted). The trial judge did not commit an obvious error by admitting the evidence.