APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Hon. Mark L. Wolf, U.S. District Judge.
Chauncey B. Wood, with whom Wood & Nathanson, LLP was on brief, for appellant.
Randall E. Kromm, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.
James L. Brochin, Jennifer H. Wu, Marques S. Tracy, Laura E. Sedlak, Paul, Weiss, Rifkind, Wharton & Garrison LLP, and Barry C. Scheck, Karen A. Newirth, Innocence Project, Inc., on brief for Innocence Project, Inc., amicus curiae in support of appellant.
Before Lynch, Chief Judge, Selya and Barron, Circuit Judges.
BARRON, Circuit Judge.
Gustavo Castro-Caicedo appeals his conviction and sentence for participating in a conspiracy tat sought to send cocaine from Colombia to the United States. His primary objection is that federal agents used a highly suggestive means to prompt a member of the conspiracy to identify him as a confederate, and thus that the government's use of the identification at trial violated his constitutional right to due process. Castro-Caicedo also challenges the admission of other testimony under the Federal Rules of Evidence. And, finally, he argues that his sentence was unreasonably lengthy. But although the record shows the District Court was justified in finding that the means used to obtain the identification were problematic, we find the record also supports the District Court's well-considered judgment that there was reason enough to credit the identification to permit a jury to decide its worth. Because we see no merit in Castro-Caicedo's remaining challenges -- each of which he raises for the first time on appeal -- we affirm both the conviction and the sentence.
Following an investigation by a Drug Enforcement Administration (DEA) task force and cooperating elements of Colombian law enforcement agencies, Castro-Caicedo, a Colombian national, was indicted in Massachusetts on one count of participating in a conspiracy to import cocaine to the United States, or to manufacture and distribute cocaine for importation to the United States. 21 U.S.C. § § 952(a), 959(a), 960(b)(1)(B). At trial, the conspiracy's leader testified that the conspiracy involved, in part, transporting tens of kilograms of cocaine from Cali, a city in Colombia, to the Colombian port city of Buenaventura, from where it would be sent by
ship to the Bahamas. The government also put forth evidence to show Castro-Caicedo helped organize some of those shipments out of Buenaventura from at least 2007 to 2009.
To prove the further allegation that the conspiracy sought to ensure the cocaine would reach this country, the government presented a variety of evidence, both direct and circumstantial. Castro-Caicedo's challenge to his conviction takes aim at only certain portions of this evidence, and we tailor our recitation of the facts accordingly.
Castro-Caicedo's lead challenge is to one piece of direct evidence: the testimony of an informant we will call " J.D."  J.D. used to be a seaman on a container ship based out of Freeport, Bahamas that often called at Buenaventura, Colombia. Federal agents first spoke with J.D. about his participation in a cocaine smuggling operation in 2009. In 2012, a little more than a month before trial, J.D. first told the agents that more than four years before he met twice with a person known to him then only as the owner of a home in the city of Buenaventura. J.D. told the agents that, through those two meetings, he and the owner of that house reached an agreement to ship certain quantities of cocaine to the United States.
Federal agents then showed J.D. eleven photographs, three of which depicted other members of the conspiracy and the last of which was an image of Castro-Caicedo. Upon seeing that picture, J.D. identified it as depicting the owner of the house and thus the person with whom he had struck the deal.
Castro-Caicedo moved to suppress the identification prior to trial. He argued the presentation of the photographs impermissibly cued J.D. to pick out Castro-Caicedo's picture. And he further argued that, by then, too much time had passed since J.D.'s last encounter with the person he purported to identify for the identification to be reliable enough to overcome the taint of that impermissibly suggestive display of photographs. He thus argued the use of the identification at trial would violate his constitutional right to due process.
The District Court disagreed. It found the photographs had been assembled in a manner that was unduly suggestive. But the District Court also found the identification was still reliable enough to put to the jury.
Castro-Caicedo did not raise his other evidentiary challenges at trial. He thus presses them for the first time on appeal.
The first of these unpreserved objections concerns testimony about two large seizures of cocaine shipments in Colombia in 2008, one of 875 kilograms of cocaine and the other of 500 kilograms. The government introduced the testimony to support its contention there was a cocaine conspiracy to join, that coded conversations between conspirators (including Castro-Caicedo) referred to cocaine trafficking, and that the conspiracy was of such scope that it must have aimed to send cocaine to the United States.
Castro-Caicedo contends he had no direct tie to either shipment, and the government concedes the point. Castro-Caicedo thus argues that, under the Federal Rules of Evidence, the testimony was either irrelevant or unduly prejudicial and that his conviction should be reversed in consequence.
Castro-Caicedo's other unpreserved evidentiary objection concerns a Colombian police officer's testimony about a polygraph test he took upon joining the DEA task force. In addition to testifying about a recorded call mentioning the 500-kilogram seizure discussed above, this officer also testified about a number of other recorded calls involving Castro-Caicedo and others who pled guilty to involvement in the conspiracy. Castro-Caicedo contends the officer's testimony about the polygraph led jurors to give undue weight to his credibility. Castro-Caicedo thus argues the admission of this polygraph testimony violated the Federal Rules of Evidence and requires reversal of the conviction.
Finally, Castro-Caicedo challenges his sentence. Here, too, he presses an argument he makes for the first time to us. Castro-Caicedo contends the 300-month prison sentence he received is unreasonable. He argues the District Court unjustifiably varied upward from the sentence suggested by the Sentencing Guidelines and, in doing so, imposed a sentence that far surpasses the ...