UNITED STATES v. AQUINO CALDERÓN (2024)

OPINION AND ORDER

Before the Court is defendant Juan Aquino-Calderón (“defendant” or “Aquino”)’s Objections to the Report and Recommendation (“R&R”) issued by U.S. Magistrate Judge Marcos E. López (“the magistrate”). (Docket No. 686.) For the following reason the Court DENIES the defendant's motion and ADOPTS the R&R. (Docket No. 668.)

I. Background 1

On February 2, 2016, federal agents seized Aquino's vessel, the “Pagoza,” at a port in Fajardo, Puerto Rico. (Docket No. 668.) The Pagoza had experienced mechanical problems near Culebra Island where it had been rescued by a maritime towing service. Its original departure point, however, had been the U.S. Virgin Islands (“USVI”). Id. When law enforcement agents questioned Aquino about where he was coming from, he responded Culebra, which was his most recent point of departure, but some of Pagoza's passengers answered that they had originally departed from USVI. Due to this discrepancy, law enforcement agents seized the boat. Prior to the seizure, law enforcement agents in USVI had also observed suspected drug traffickers repair the Pagoza. (Docket No. 603.)

Customs officers moved the Pagoza to another marina for inspection by a K-9 unit. The dog alerted to the presence of controlled substances at different places of the vessel, but nothing was found upon closer inspection. Customs officers, in any event, moved the Pagoza to still another marina for further inspection, and held the boat overnight. (Docket No. 668.) On February 3, 2016, federal law enforcement conducted a VACIS ² scan of the vessel and noticed “anomalies” near the gas tank. At around 2:10 p.m. that same day, law enforcement officers located 36 packages of cocaine inside a hidden compartment. Id. Law enforcement agents failed to take photographs of the interior of the boat before conducting the search. (Docket No. 603.) Over two years later, in March 2018, Aquino was arrested for the current charges. On February 14, 2023, after a protracted discovery process, the United States revealed that the “X-Ray has been decommissioned” and that “[n]o [VACIS] images [were] located.”

II. Legal Standard

A district court may refer pending dispositive motions to a magistrate judge for a report and recommendation. See 28 U.S.C. § 636(b)(1)(B), Fed. R. Civ. P. 72(b) and Local Civil Rule 72(a). Any party adversely affected by the report and recommendation may file written objections within ten days of being served with the magistrate judge's report. 28 U.S.C. § 636(b)(1). A party that files a timely objection is entitled to a de novo determination of “those portions of the report or specified proposed findings or recommendations to which specific objection is made.” Sylva v. Culebra Dive Shop, 389 F. Supp. 2d 189, 191-92 (D.P.R. 2005) (quoting United States v. Raddatz, 447 U.S. 667, 673 (1980)). Failure to comply with this rule precludes further review. See Davet v. Maccorone, 973 F.2d 22, 30-31 (1st Cir. 1992). In conducting its review, a court is free to “accept, reject, or modify, in whole or in part, the findings or recommendations made by the Magistrate Judge.” 28 U.S.C. § 636 (a)(b)(1). Templeman v. Chris Craft Corp., 770 F.2d 245, 247 (1st Cir. 1985); Álamo Rodríguez v. Pfizer Pharmaceuticals, Inc., 286 F.Supp. 2d 144, 146 (D.P.R. 2003). Furthermore, the Court may accept those parts of the report and recommendation to which the parties do not object. Hernández-Mejías v. General Elec., 428 F.Supp.2d 4, 6 (D.P.R. 2005) (citing Lacedra v. Donald W. Wyatt Detention Facility, 334 F. Supp.2d 114,125-126 (D.R.I. 2004)).

III. Discussion

As a preliminary matter, defendant's request for an evidentiary hearing is denied because the material facts are not in dispute. U.S. v. Cintrón, 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.”) (citation and quotation omitted.) The only question before the Court is whether the government's alleged mishandling of two pieces of evidence was so grave as to requires the dismissal of the indictment. The Court finds it does not.

The defendant's request to access the decommissioned VACIS machine is also denied because the defendant's arguments are unavailing purely from a data storage point of view. It is unlikely that the scans from a VACIS machine retired years ago might somehow be stored in a cloud system. Cloud storage has not been fully implemented by the federal government to this day.³ Furthermore, cloud storage was developed, in part, to make data accessible from any authorized account without requiring access to the hardware that initially created the data. Therefore, even if the data from the VACIS machine had somehow been stored in a cloud, there would be no need to inspect the physical machine to access that data. Equally unlikely is the idea that a VACIS machine built more than a decade ago had a hard drive capable of storing the data from every scan completed over its lifetime. The Court cannot approve a fishing expedition, much less one based on a flawed understanding of data storage.

A. The Missing Evidence

The Due Process Clause of the Fourteenth Amendment guarantees a fundamental fairness in criminal prosecutions. California v. Trombetta, 467 U.S. 479, 488-489 (1984). In order to demonstrate that missing evidence constitutes a due process violation, the United States Supreme Court held in Trombetta that “the 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.” Id. Several years later, the Supreme Court added a third condition, requiring a defendant to show “bad faith on the part of the police” in order to demonstrate a denial of due process. Arizona v. Youngblood, 488 U.S. 51, 58 (1988). The First Circuit Court of Appeals 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.” U.S. v. Femia, 9 F.3d 990, 993-994 (1st Cir. 1993). As the magistrate judge correctly noted, intentional destruction or destruction of evidence due to gross negligence is not sufficient to meet the element of bad faith. U.S. v. Garza, 435 F.3d 73, 75 (1st Cir. 2006). “A successful prosecutorial misconduct argument must be premised upon independent evidence that the prosecution was somehow improperly motivated.” U.S. v. Gallant, 25 F.3d 36, 39 n.2 (1st Cir. 1994).

Therefore, the dispositive issue in this case is whether (1) the evidence was exculpatory, (2) the evidence is irreplaceable, and (3) the government's actions rise to the level of bad faith. The missing evidence in question here is (1) the missing pictures of the interior of the Pagoza prior to the search conducted by law enforcement, and (2) the VAICS scans of the vessel showing where the narcotics were located (together “the evidence”). (Docket No. 686.)

B. The Evidence is not Irreplaceable

The defendant argues that the missing evidence satisfies all three prongs set forth in Trombetta and Youngblood, and is irreplaceable when it comes to establishing a “blind mule”⁴ defense. Without objective evidence of where the narcotics were hidden (the VACIS scans), or the state of the interior of the vessel prior to law enforcement's search (the missing photographs), defendant argues he cannot show a jury how difficult it would have been for him to find the contraband, let alone know it was on board the Pagoza. (Docket No. 686.) Aquino also takes issue with the magistrate's finding that the evidence could be replaced with witness testimony. The defendant argues that (1) any witness testimony of the state of the Pagoza and location of the drugs would be unreliable given the nearly eight years that have passed since the vessel was searched, and (2) law enforcement's testimony will be “colored by the agents’ inherent interest in a successful prosecution.” (Docket No. 686 p. 10.) Without the objective evidence, defendant contends that he will be unable to challenge the agents’ testimony about the state of the Pagoza before the narcotics were uncovered. Id.

Defendant's arguments are unavailing for the reasons set forth in the R&R. Even assuming, for the sake of argument, that the evidence was exculpatory, the defendant has not shown the evidence is irreplaceable. Presumably, the Pagoza is not a one-of-a-kind ship, in fact, based on law enforcement description the vessel is most likely a 1997 Monterey 262 Cruiser. (Docket No 578 Ex. 1.) If the defendant requires objective evidence to impeach law enforcement officer's testimony on this matter and does not wish to testify himself, he could easily access pictures and designs of the vessel's interior from the manufacturer or even from a reputable online source.

Even without these designs or the missing evidence, Aquino may still argue that he was a “blind mule.” As the defendants’ motion to dismiss correctly identifies, “agents (1) received information beforehand that USVI-based drug traffickers had been seen working on Mr. Aquino's boat without him present; (2) could not find the contraband even after a trained narcotics dog alerted to its presence; (3) placed the vessel through a VACIS scan to locate the hidden contraband; and (4) destroyed parts of interior of the vessel to access the hidden compartment where the contraband was stored.” (Docket No. 668 p. 8.) These facts alone create a plausible “blind mule” argument, and do not depend on VACIS scans or photographs of the Pagoza's undisturbed interior.

C. The Defendant does not Demonstrate Evidence of Bad Faith

The defendant's objections also fail because he has not provided any evidence of bad faith on the part of the government, and cannot satisfy the requirement set forth in Youngblood. As discussed, a bad faith argument must be premised on independent evidence of improper motivation. U.S. v. Gallant, 25 F.3d 36, 39 n.2 (1st Cir. 1994). Certainly, the circumstances surrounding the missing evidence can speak to bad-faith and, as the defendant himself correctly points out, the Court may infer bad faith when the way the evidence is discarded negates innocent explanation. United States v. Beckstead, 500 F.3d 1154, 1159-61 (10th Cir. 2007).

Aquino protests that the government has not provided answers to his questions regarding the whereabouts of this evidence or its attempts to locate it, and that he is at a severe disadvantage when it comes to obtaining information that may demonstrate bad faith. (Docket No. 686 p. 9.) To be sure, the defendant lacks information about what happened to the VACIS machine and the scans, but the government also clearly lacks that information as well. In this case the failure to provide a detailed explanation for the missing evidence does not rise to the level of bad faith required by Youngblood. See Gallant, 25 F.3d 39 n.2 (1st Cir. 1994) (“we think it clear that a successful prosecutorial misconduct argument must be premised upon independent evidence that the prosecution was somehow improperly motivated.”) Further complicating the defendant's bad faith argument is the fact that there are plenty of plausible, innocent explanations for the missing evidence. Most likely the VACIS, an outdated piece of government equipment, had no way of properly storing the large number of scans taken over the course of its life, and any data it did have was lost when it was decommissioned. Likewise, it is difficult to ascribe the lack of photographs of the interior to improper motivation on the law enforcement agents’ part, especially because they had no idea they would find narcotics prior to the search, only that the VAICS scans had shown an “anomaly” near the gas tank. As the magistrate judge correctly noted, these decisions were likely due to negligence on the part of the government but do not rise to the level of bad faith. (Docket No. 668 p. 7.) For these reasons, the defendant does not satisfy the tests set out Trombetta and Youngblood, and his motion to dismiss must be DENIED.

IV. Conclusion

For the reasons set forth above, the Court ADOPTS the R&R (Docket No. 668) and DENIES the defendant's Motion to Dismiss the Indictment and his Motion to Suppress Evidence. (Docket No. 603.)

IT IS SO ORDERED.

FOOTNOTES

2.   A large X-ray machine used to scan vehicles.

3.   See David Hinchman, After a Recent Hacking – What are the Risks and Rewards of Cloud Computing Use by the Federal Government, U.S. Government Accountability Office (Aug. 10, 2023), https://www.gao.gov/blog/after-recent-hacking-what-are-risks-and-rewards-cloud-computing-use-federal-government; Juliana Vida, Why Lack of Observability Could hold back the Government's Cloud Journey, Federal News Network (Nov. 11, 2022 8:12 a.m.), https://federalnewsnetwork.com/commentary/2022/11/why-lack-of-observability-could-hold-back-the-governments-cloud-journey/.

4.   A “blind mule,” is a person who does not know that he is carrying contraband who is used by criminals to carry the contraband across a border. (Docket No. 603 at 8.)

BESOSA, Senior District Judge.