United States v. Benjamin-Hernandez

49 F.4th 580

UNITED STATES of America, Appellee,

v.Edilio BENJAMIN-HERNANDEZ, Defendant, Appellant.

United States of America, Appellee,

v.Johanni Balbuena-Hernandez, Defendant, Appellant.

No. 20-1236

No. 20-1295

United States Court of Appeals, First Circuit.

September 21, 2022

Mariángela Tirado-Vales for appellant Edilio Benjamin-Hernandez.

German A. Rieckehoff for appellant Johanni Balbuena-Hernandez.

Julia M. Meconiates, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, were on brief, for appellee.

Before Kayatta and Howard, Circuit Judges, and Casper, District Judge.^*

HOWARD, Circuit Judge.

Following a lengthy period of pretrial detention, appellants Edilio Benjamin-Hernandez (Benjamin) and Johanni Balbuena-Hernandez (Balbuena) were convicted on multiple charges stemming from a conspiracy to transport cocaine from the Dominican Republic to Puerto Rico. They now argue that the district court should have dismissed the indictment against them and that the evidence presented at trial cannot sustain their convictions. Benjamin also lodges two evidentiary challenges. But their panoply of claims falls short, and we affirm their convictions.

I.

Benjamin and Balbuena were first indicted in November 2015 on multiple charges of conspiracy and importation of controlled substances. Following hearings in December, both were detained pending trial. Superseding indictments adding new co-defendants followed in March and July of 2016.

The parties engaged in extensive motion practice, with Benjamin and Balbuena together filing more than forty pretrial motions. Balbuena eventually filed over two years later a motion to dismiss the indictment based on alleged violations of both the Speedy Trial Act ("STA") and the Sixth Amendment. Benjamin joined this motion, which the court denied, finding no STA or constitutional violation in the length of the challenged period of detention. In June 2018, the court set Benjamin and Balbuena's cases for joint trial the following October.

During the four-day trial, the government presented evidence supporting its theory that Benjamin and Balbuena had transported drugs from the Dominican Republic aboard a yawl, which they ultimately abandoned near the shore in Vega Baja, Puerto Rico, when detected by local law enforcement. A jury convicted Benjamin and Balbuena of conspiracy to possess with intent to distribute at least five kilograms of cocaine, and of aiding and abetting the importation of at least five kilograms of cocaine.¹ Following the verdict, Benjamin and Balbuena each filed renewed motions for acquittal pursuant to Federal Rule of Criminal Procedure 29(c), which the court denied.

On appeal, Balbuena, joined by Benjamin, challenges the district court's denial of their motion to dismiss. Balbuena and Benjamin also argue that the evidence presented at trial was insufficient to support their convictions. In addition, Benjamin raises two evidentiary challenges. We address each claim in turn.

II.

A. Speedy Trial Act

"The STA provides generally that, upon motion, an indictment must be dismissed if the defendant's trial has not commenced within 70 days from the latter of the return of the indictment or the defendant's first appearance before a judicial officer." United States v. Gates, 709 F.3d 58, 64 (1st Cir. 2013) (citing 18 U.S.C. § 3161(c)(1) ). But "[t]his 70-day limit is not absolute," and certain periods of time may be excluded. Id. (citing 18 U.S.C. § 3161(h) ). "If a defendant is not brought to trial" within the required time limit, "the information or indictment shall be dismissed on motion of the defendant." 18 U.S.C. § 3162(a)(2).

Typically, we review a "denial of a statutory speedy trial claim de novo as to legal rulings, and for clear error as to factual findings." United States v. Irizarry-Colón, 848 F.3d 61, 65 (1st Cir. 2017) (quoting United States v. Carpenter, 781 F.3d 599, 616 (1st Cir. 2015) ). But "a defendant can waive or forfeit a claim of error in the application of the Act by failing to timely raise the claim in the district court," thereby limiting our review. United States v. Gottesfeld, 18 F.4th 1, 6 (1st Cir. 2021) (citing United States v. Valdivia, 680 F.3d 33, 41 (1st Cir. 2012) ), pet. for cert. filed, No. 21-1313 (U.S. Apr. 1, 2022).

Balbuena argues that his initial appearance on November 23, 2015, started the seventy-day clock, which ran until he filed his motion to dismiss on March 6, 2018. This totaled 834 days, "of which only 503 days were properly excluded." But Balbuena's claim hits a threshold problem: his motion before the district court challenged only the period between his initial appearance on November 23, 2015, and May 4, 2016, the day that the case was transferred to a new judge following the original judge's retirement. "[W]e do not go hunting for nonexcludable time; exclusions of time not specifically challenged in the district court are waived on appeal." United States v. Laureano-Pérez, 797 F.3d 45, 57 (1st Cir. 2015) (citing Gates, 709 F.3d at 67-68 ); see United States v. Souza, 749 F.3d 74, 81 (1st Cir. 2014). We thus limit our analysis of Balbuena's challenge to the specific timeframe that he raised before the district court.

The STA excludes "reasonable period[s] of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and no motion for severance has been granted." United States v. Casas, 425 F.3d 23, 31 (1st Cir. 2005) (alteration in original) (quoting 18 U.S.C. § 3161(h)(6) ). "The Supreme Court has interpreted this section to mean that the clock does not, in effect, begin to run until the date of the most recent defendant's initial appearance before the court." Id. (citing Henderson v. United States, 476 U.S. 321, 323 n.2, 106 S.Ct. 1871, 90 L.Ed.2d 299 (1986) ); see also United States v. Barnes, 251 F.3d 251, 257 (1st Cir. 2001) ("[T]he time line for the last defendant joined usually becomes the time line for all defendants."). Here, defendants were indicted in a second superseding indictment on July 20, 2016, which also charged several new co-defendants. Accordingly, the district court found that "the 70-day clock remained tolled until at least the last co-[d]efendant's triggering event, namely [the last co-defendant's] arraignment on February 1, 2017." This meant that "there was no violation of the STA's 70-day limit" within the time frame challenged by Balbuena because the clock effectively did not start until February 2017.

Balbuena now argues that "he was not ‘joined for trial’ within the meaning" of the STA with the co-defendants added in the second superseding indictment because, ultimately, he was tried with only Benjamin. Balbuena also argues that the district court failed to make a reasonableness finding before concluding that the second superseding indictment tolled the clock. But Balbuena failed to preserve these arguments because he did not raise them before the district court. See Rockwood v. SKF USA Inc., 687 F.3d 1, 9 (1st Cir. 2012) ("Our case law is clear that ‘arguments not raised in the district court cannot be raised for the first time on appeal.’ " (quoting Sierra Club v. Wagner, 555 F.3d 21, 26 (1st Cir. 2009) )). At most, we can review for plain error, see Gottesfeld, 18 F.4th at 5-6, but Balbuena "makes no attempt to show how his ... claim[s] satisf[y] the demanding plain-error standard -- his brief fails to even mention plain error, let alone argue for its application here." United States v. Cruz-Ramos, 987 F.3d 27, 40 (1st Cir. 2021).² That failure definitively waives these arguments and denies us the opportunity to consider them further.

B. Sixth Amendment Violation

When the government violates a criminal defendant's Sixth Amendment "right to a speedy and public trial[,]" the criminal charges against the defendant "must be dismissed." United States v. Lara, 970 F.3d 68, 80 (1st Cir. 2020) (first quoting U.S. Const. amend. VI and then quoting United States v. Dowdell, 595 F.3d 50, 60 (1st Cir. 2010) ), cert. denied sub nom. Williams v. United States, ––– U.S. ––––, 141 S. Ct. 2821, 210 L.Ed.2d 942 (2021). "To assess whether a defendant's Sixth Amendment right has been violated, we consider four factors: (1) ‘the length of delay’; (2) ‘the reason assigned by the government for the delay’; (3) ‘the defendant's responsibility to assert his right’; and (4) ‘prejudice to the defendant, particularly "to limit the possibility that the defense will be impaired." ’ " Id. (quoting United States v. Handa, 892 F.3d 95, 101 (1st Cir. 2018) ).

We typically apply the abuse of discretion standard to a district court's resolution of a defendant's motion to dismiss based on a Sixth Amendment violation. See United States v. Maldonado-Pen~a, 4 F.4th 1, 15 (1st Cir. 2021). But "there is some debate about whether" this is the appropriate standard, and Balbuena asserts that we should review his constitutional claim de novo. Id. at 15, n.6. Since, for the reasons discussed below, Balbuena's claim fails under either standard, we may sidestep this issue for now.

Considering the first factor, "[d]elays of around a year or longer are presumptively prejudicial," and the district court correctly found that the roughly thirty-three month delay that Balbuena and Benjamin experienced weighed in their favor. Lara, 970 F.3d at 81.³

The "second factor concerns the explanation for the delay" and is the focal point of our inquiry. Id. at 82 (quoting Souza, 749 F.3d at 82 ). The district court found that the second factor "weigh[ed] heavily against Defendants" given the complexity of the case, numerous pretrial motions (including 43 filed by Balbuena and Hernandez), lack of any evidence indicating bad faith by the government, and circumstances out of the parties' control, including the Hurricane Maria natural disaster and the unavailability of Balbuena's first counsel due to illness. We agree that the...