United States v. Calderon

1

UNITED STATES OF AMERICA, Plaintiff, v. [8] JUAN AQUINO CALDERON, Defendant.

CRIMINAL No. 17-254 (FAB)

United States District Court, D. Puerto Rico

February 6, 2024

REPORT AND RECOMMENDATION

Marcos E. Lopez U.S. Magistrate Judge

Co-defendant [8] Juan Aquino Calderon (hereinafter “Defendant” or “Mr. Aquino”) was indicted for conspiring to distribute five kilograms or more of a mixture or substance containing cocaine and for possessing with intent to distribute five kilograms or more of a mixture or substance containing cocaine, in violation of Title 21, United States Code, Sections 841, 846. ECF No. 41. Defendant has filed a motion seeking sanctions against the United States based on spoliation of evidence. ECF No. 603. In particular, Defendant argues that “law enforcement failed to preserve the VACIS machine and scans that allegedly revealed ‘anomalies' near the gas tank of Mr. Aquino's vessel.” Id. at 1. Due to such failure Defendant demands the dismissal of the indictment or alternatively, the suppression of the cocaine recovered from a hidden compartment in the vessel. Id. at 2.

The material facts are not in dispute and for purposes of this report, I will be relying on the facts as stated in Defendant's motion to dismiss the indictment or suppress evidence. ECF No. 603. Therefore, an evidentiary hearing is not necessary. U.S. v. Cintron, 724 F.3d 32, 36 (1st Cir. 2013) (“A criminal defendant has no presumptive right to an evidentiary hearing. Rather, a hearing is required only if the movant makes a sufficient threshold showing that material facts are in doubt or dispute, and that such facts cannot reliably be resolved on a paper record. Most importantly, the defendant must show that there are factual disputes which, if resolved in his favor, would entitle him to the requested relief.”) (citation and quotation omitted).

Around 3:00 pm on February 2, 2016, Mr. Aquino arrived at Fajardo in his boat named Pagoza, along with several passengers. Although the vessel had experienced mechanical problems near the island of Culebra, where it had been rescued by a maritime towing service, its original departure point had been the U.S. Virgin Islands (“USVI”). When law enforcement agents questioned Defendant about where he was coming from, he replied Culebrita, which was his most recent point of departure. Nevertheless, because some of Pagoza's occupants answered that they had originally departed from USVI, law enforcement agents seized the boat due to the purported inconsistency. Prior to this intervention at Fajardo, however, law enforcement agents at USVI had observed suspected drug traffickers repairing Mr Aquino's vessel.

Customs officers moved Pagoza to another marina for further inspection by a K-9. The dog alerted to the presence of controlled substances at different places of the vessel, but nothing illegal was observed upon closer inspection. Law enforcement agents, however, decided to keep the vessel overnight for a more thorough inspection.

On February 3, 2016, federal law enforcement agents conducted a VACIS scan of the vessel and noticed anomalies near the gas tank. Eventually on that same day, law enforcement agents found 36 packages of cocaine in a hidden compartment from the interior of the vessel. Law enforcement agents, however failed to take photographs of the interior of the vessel before their search.^[1] Over two years later, Mr. Aquino was arrested for the present charges in a superseding indictment. After a protracted discovery process seasoned with disputes, on February 14, 2023 the United States revealed that the “X-Ray has been decommissioned” and “[n]o [VACIS] images located.” ECF No. 603-1. Almost ten months later, that is on December 11, 2023, Defendant filed the motion currently pending before the court seeking the imposition of sanctions.

Defendant maintains that he is a “blind mule,” meaning “a person used by criminals to carry contraband across a border, who does not know that he is carrying the contraband.” ECF No. 603 at 8. Without the VACIS scans and photographs showing how the interior of the vessel looked before the search was conducted, Defendant claims, irreplaceable exculpatory evidence has been lost that would have shown his lack of knowledge about the contraband in Pagoza. Id. For the reasons that ensue, however, Mr. Aquino's arguments are unpersuasive.

Two obstacles that a defendant must overcome to demonstrate that missing evidence rises to a constitutional violation were originally set by the United States Supreme Court:

Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect's defense. To meet this standard of constitutional materiality, evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.

California v. Trombetta, 467 U.S. 479, 488-489 (1984). Eventually, a third hurdle was added: “[U]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Arizona v. Youngblood, 488 U.S. 51, 58 (1988). Accordingly, the U.S. Court of Appeals for the First Circuit has summed up the three prongs as follows: “A defendant who seeks to suppress evidence formerly in the government's possession therefore must show that the government, in failing to preserve evidence, (1) acted in bad faith when it destroyed evidence, which (2) possessed an apparent exculpatory value and, which (3) is to some extent irreplaceable. Thus in missing evidence cases, the presence or absence of good or bad faith by the government will be dispositive.” U.S. v. Femia, 9 F.3d 990, 993-994 (1st Cir. 1993).^[2]

The analysis begins by focusing on what is actually the relevant missing evidence. Photographs of Pagoza's appearance before the post x-ray search was conducted is not evidence lost; it is evidence that never existed because the agents never took such pictures. The VACIS machine, on the other hand, has been decommissioned. Yes, the VACIS machine is not available anymore to the defense, but Defendant has failed to articulate how exactly being able to examine that equipment would somehow aid to support his theory that he was not aware of the contraband in his boat.^[3]Therefore, the focus of the controversy boils down to one missing piece of evidence: the lost VACIS scans.

Presumably the VACIS scans would have helped Mr. Aquino show exactly where the cocaine was in the vessel and that the contraband was not easily accessible or apparent to anybody riding on Pagoza on February 2, 2016. Moreover, the fact that the agents did not take any pictures before the vessel was subject to x-rays and searched does not help to somehow fill in the gap left by the lost scans. Had he had those VACIS scans, Defendant posits, it would have been evident for a jury to see that it was impossible or highly unlikely for him to know the presence of cocaine in the boat.

There is, however, a problem with Defendant's argument: The government has conceded that the 36 packages of cocaine were in a hidden compartment. Actually, the government has conceded even more: The contraband was concealed so well that even after a dog alerted to the presence of narcotics in Pagoza and the agents conducted what for lack of a better term could be described as a first round search, they found nothing. Therefore, the government cannot now turn and say to a jury that it was obvious that Mr. Aquino knew about the packages of cocaine because the packages were readily visible, apparent or accessible in Pagoza. Evidently they were not readily visible, apparent or accessible because even law enforcement agents with experience and training and assisted by a K-9 could not find the illicit drugs. Therefore, this is not a situation of missing exculpatory evidence that is irreplaceable. Nothing prevents Defen...