United States Court of Appeals
`For the First Circuit
`
`
`
`
`No. 19-2046
`
`
`
`No. 19-2067
`
`UNITED STATES OF AMERICA,
`
`Appellee,
`
`v.
`
`NOEL DE LEON-DE LA ROSA,
`
`Defendant, Appellant.
`
`
`
`UNITED STATES OF AMERICA,
`
`Appellee,
`
`v.
`
`JUAN BATISTA JOHNSON-DEBEL,
`
`Defendant, Appellant.
`
`
`
`
`
`
`
`
`
`APPEALS FROM THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF PUERTO RICO
`
`[Hon. Gustavo A. Gelpí, Jr., U.S. District Judge]
`
`
`
`Before
`
`Kayatta and Barron, Circuit Judges,
`and O'Toole,* District Judge.
`
`
`
`* Of the District of Massachusetts, sitting by designation.
`
`
`
`
`For the First Circuit
`
`
`
`
`No. 19-2046
`
`
`
`No. 19-2067
`
`UNITED STATES OF AMERICA,
`
`Appellee,
`
`v.
`
`NOEL DE LEON-DE LA ROSA,
`
`Defendant, Appellant.
`
`
`
`UNITED STATES OF AMERICA,
`
`Appellee,
`
`v.
`
`JUAN BATISTA JOHNSON-DEBEL,
`
`Defendant, Appellant.
`
`
`
`
`
`
`
`
`
`APPEALS FROM THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF PUERTO RICO
`
`[Hon. Gustavo A. Gelpí, Jr., U.S. District Judge]
`
`
`
`Before
`
`Kayatta and Barron, Circuit Judges,
`and O'Toole,* District Judge.
`
`
`
`* Of the District of Massachusetts, sitting by designation.
`
`
`
`
`
`Fernando O. Zambrana-Avilés, with whom Colon Serrano
`Zambrana, LLC was on brief, for appellant Noel de Leon-De la Rosa.
`Kendys Pimentel-Soto, with whom Kendys Pimentel-Soto Law
`Office LLC was on brief, for appellant Juan Batista Johnson-Debel.
`Mariana E. Bauzá-Almonte, Chief Appellate Division
`Attorney for the Department of Justice, with whom Gregory B.
`Conner, Assistant United States Attorney, and W. Stephen Muldrow,
`United States Attorney were on brief, for appellee.
`
`
`
`
`
`
`
`November 2, 2021
`
`
`
`
`
`
`
`
`
`BARRON, Circuit Judge. Noel de Leon-De la Rosa ("De
`
`Leon") and Juan Batista Johnson-Debel ("Johnson") challenge their
`
`respective federal convictions in the District of Puerto Rico, as
`
`well as the resulting sentences. Those convictions are for
`
`destruction of a controlled substance while on a vessel, and
`
`conspiracy to destroy a controlled substance while on a vessel.
`
`Their prosecutions followed their indictment for these offenses
`
`-- as well as for others for which they also were convicted but
`
`that are not at issue here -- after U.S. Customs and Border Patrol
`
`("CBP") agents in April 2017 interdicted off the coast of Puerto
`
`Rico the small boat that De Leon and Johnson were on at the time.
`
`We vacate the convictions that Johnson and De Leon each challenge,
`
`though we vacate Johnson's for different reasons than those that
`
`lead us to vacate De Leon's.
`
`I.
`
`A.
`
`The following facts are not in dispute. On the night of
`
`April 20, 2017, De Leon and Johnson were on a small boat about
`
`thirty miles off the northern coast of Puerto Rico, traveling
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`southeast. The boat had no running lights.
`
`At around 9:00 p.m., a CBP agent patrolling those waters
`
`by airplane detected the boat on the plane's forward-looking
`
`infrared camera. Suspecting drug smuggling, the agent called the
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`Coast Guard and the CPB's marine interdiction unit was dispatched
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`to the boat's location.
`
`
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`The unit interdicted the boat just before midnight.
`
`After boarding the vessel, members of the unit determined that
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`there was no contraband on board. CBP agents from the unit then
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`detained Johnson and De Leon and brought the two of them -- along
`
`with the boat -- to the CBP facility in San Juan, Puerto Rico.
`
`Once onshore at the CBP facility, at around 2:00 a.m.,
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`Johnson was interviewed by Francisco Calderón, an agent with U.S.
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`Homeland Security Investigations. Calderón read Johnson the
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`warnings required under Miranda v. Arizona, 384 U.S. 436 (1966),1
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`and Johnson then answered questions that Calderón put to him about
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`what had transpired aboard the boat. Johnson had also been
`
`interviewed immediately after the interdiction by Agent Miguel
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`Borges.
`
`The following morning, CBP Canine Enforcement Officer
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`Adriel Castillo brought Honzo, a drug-detection dog, to inspect
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`the boat. As Castillo walked the dog around the boat, Honzo
`
`"alerted" to the "[p]ossible contamination of narcotics."
`
`That same day, Maritime Law Enforcement Specialist
`
`Matthew Tommie from the U.S. Coast Guard used a machine called an
`
`
`1 Johnson filed a motion to suppress his statements below but
`has not renewed any Miranda claims on appeal.
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`- 4 -
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`
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`Ionscan 400B to test swabs taken from the vessel. The scan
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`revealed no trace residue of narcotics.
`
`B.
`
`Johnson and De Leon were indicted in the District of
`
`Puerto Rico on May 18, 2017, in an eight-count indictment. The
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`indictment set forth the following charges against each defendant:
`
`Count One[:] Possession with the intent to
`distribute a controlled substance on board a vessel
`subject to the jurisdiction of the United States,
`aiding and abetting . . . in violation of [46
`U.S.C. § 70503(a)(1) and 18 U.S.C. § 2].
`
`Count Two[:] Conspiracy to possess with the intent
`to distribute a controlled substance on board a
`vessel subject to the jurisdiction of the United
`States . . .
`in
`violation
`of
`[46
`U.S.C.
`§§ 70503(a)(1), 70506(b)].
`
`Count Three[:] Possession with the intent to
`distribute a controlled substance . . .
`in
`violation of [21 U.S.C. § 841 and 18 U.S.C. § 2].
`
`Count Four[:] Conspiracy to possess with the intent
`to distribute a controlled substance . . . in
`violation of [21 U.S.C. §§ 841, 846].
`
`Count Five[:] Conspiracy to destroy property
`subject to forfeiture under [s]ection 511(a) of the
`Comprehensive Drug Abuse Prevention Act of 1970
`. . . that is [a] . . . controlled substance [while
`on a vessel]. . . in violation of [21 U.S.C.
`§ 881(a) and 46 U.S.C. §§ 70503(a)(2), 70504(b)(1),
`70506(d)].
`
`Count Six[:] Destruction of property subject to
`forfeiture under
`[s]ection 511(a) of
`the
`Comprehensive Drug Abuse Prevention Act of 1970
`. . . that is . . . [a] controlled substance [while
`on a vessel] . . . in violation of [21 U.S.C.
`§ 881(a), 46 U.S.C. §§ 70503(a)(2), 70504(b)(1),
`70506(d), and 18 U.S.C. § 2].
`
`- 5 -
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`The indictment also set forth two other counts. Count
`
`Seven charged Johnson alone with improper entry by a noncitizen in
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`violation of 8 U.S.C. § 1325(a)(1). Count Eight charged De Leon
`
`alone with illegal reentry of a removed noncitizen in violation of
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`8 U.S.C. § 1326(a) and (b)(1).
`
`Before trial, De Leon moved for severance. He did so on
`
`the ground that Johnson's statements to Calderón and Borges
`
`following the interdiction, if admitted in a joint trial with him,
`
`would violate De Leon's rights under the Confrontation Clause of
`
`the Sixth Amendment of the U.S. Constitution as interpreted in
`
`Bruton v. United States, 391 U.S. 123 (1968). The District Court
`
`denied the motion. De Leon moved for reconsideration, which the
`
`District Court denied.
`
`De Leon then renewed his request at trial to exclude
`
`Johnson's statements to Agent Calderón based on Bruton. The
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`District Court once again denied the request, explaining that "so
`
`long as [the confession] is sanitized then it's admissible." In
`
`charging the jury, the District Court instructed that the
`
`"statements . . . made by . . . Johnson [to Calderón]. . . can
`
`only be considered as evidence against [Johnson]" and "cannot be
`
`considered as evidence against [De Leon]."
`
`At both the conclusion of the government's case and the
`
`close of evidence, the defendants argued that judgments of
`
`acquittal should be entered as to Counts One through Six for each
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`- 6 -
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`
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`defendant because the government had failed to prove its case
`
`beyond a reasonable doubt. The District Court denied the motions.
`
`The jury convicted Johnson and De Leon separately on
`
`Counts Seven and Eight, which set forth their respective
`
`immigration charges, and Counts Five and Six, which set forth their
`
`respective charges for destruction of property subject to
`
`forfeiture while aboard a vessel and conspiracy to commit the same
`
`offense. The jury acquitted both defendants of Counts One through
`
`Four, which set forth charges against each of them relating to
`
`possession with the intent to distribute a controlled substance.
`
`The jury verdicts entered on June 24, 2019.
`
`Johnson and De Leon filed written motions for judgments
`
`of acquittal under Rule 29 of the Federal Rules of Criminal
`
`Procedure as to Counts Five and Six. The motions were denied.
`
`The case proceeded to sentencing. Johnson was sentenced
`
`to fifty-seven months of imprisonment on his convictions for Counts
`
`Five and Six and three months' for his conviction on Count Seven,
`
`to be served consecutively for a total sentence of sixty months'.
`
`De Leon was sentenced to seventy-two months of imprisonment on his
`
`convictions on Counts Five and Six and twelve months' for his
`
`conviction on Count Eight, to be served concurrently.
`
`Judgment entered against each defendant on September 25,
`
`2019, and each filed a timely notice of appeal. See Fed. R. App.
`
`P. 4(b)(1)(A)(I). We have jurisdiction over their appeals of their
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`- 7 -
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`
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`convictions under 28 U.S.C. § 1291 and over their appeals of their
`
`sentences under 18 U.S.C. § 3742(a).
`
`II.
`
`We begin with the defendants' challenges to the District
`
`Court's denial of their motions for judgments of acquittal as to
`
`their convictions on Counts Five and Six. As we have explained,
`
`the latter count was for destruction of property subject to
`
`forfeiture while on a vessel, and the former count was for
`
`conspiracy to commit the same. See United States v. Godin, 534
`
`F.3d 51, 61 (1st Cir. 2008). De Leon and Johnson each contends
`
`that the District Court erred because the evidence in the record
`
`does not suffice to support a finding of guilt beyond a reasonable
`
`doubt as to either offense.
`
`Our review of the defendants' sufficiency-of-the-
`
`evidence challenges is de novo. See United States v. Burgos-
`
`Montes, 786 F.3d 92, 112 (1st Cir. 2015). In undertaking this
`
`review, we must consider the evidence "in the light most favorable
`
`to the verdict," United States v. Stewart-Carrasquillo, 997 F.3d
`
`408, 417 (1st Cir. 2021), mindful that "both direct and
`
`circumstantial evidence, whether alone or in concert, can sustain
`
`a conviction," United States v. Clough, 978 F.3d 810, 816 (1st
`
`Cir. 2020).
`
`We have cautioned that in reviewing a sufficiency
`
`challenge we may not "stack inference upon inference in order to
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`- 8 -
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`uphold the jury's verdict." United States v. Guzman-Ortiz, 975
`
`F.3d 43, 55 (1st Cir. 2020) (quoting United States v. Valerio, 48
`
`F.3d 58, 64 (1st Cir. 1995). At the same time, we also have
`
`explained that we "may not pursue a divide and conquer strategy,"
`
`id. (internal quotation marks omitted), that would isolate each
`
`piece of evidence without giving due weight to the picture that it
`
`helps to create when the evidence is considered as a whole.
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`Instead, we must consider the evidence "in its totality," id. at
`
`54, as the ultimate question that we must answer "is not whether
`
`a reasonable jury could have acquitted the defendant, but rather
`
`whether a reasonable jury 'could have found that the government
`
`proved each element of the crime beyond a reasonable doubt.'"
`
`Stewart-Carrasquillo, 997 F.3d at 418 (quoting United States v.
`
`Paz-Alvarez, 799 F.3d 12, 25 (1st Cir. 2015)).
`
`We agree with the government that, under the standards
`
`just described, there is no merit to the sufficiency challenges
`
`before us. To see why, it first helps to provide some more
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`background about the government's case and the nature of the issues
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`that are in dispute in relation to the defendants' sufficiency
`
`challenges. We then will turn to the specific arguments that each
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`defendant makes about why the evidence is too thin, starting with
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`Johnson's.
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`- 9 -
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`A.
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`The indictment charged De Leon and Johnson each with
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`violating 46 U.S.C. § 70503(a)(2) and 18 U.S.C. § 2 by destroying
`
`property subject to forfeiture as defined by 21 U.S.C. § 881(a),
`
`as well as conspiring to do the same. Section 881(a), in turn,
`
`provides that certain categories of property are subject to
`
`forfeiture, including "[a]ll controlled substances which have been
`
`manufactured, distributed, dispensed, or acquired in violation of
`
`[the Act]", id. § 881(a)(1), and "[a]ll raw materials, products,
`
`and equipment of any kind which are used, or intended for use, in
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`manufacturing, compounding, processing, delivering, importing, or
`
`exporting any controlled substance," id. § 881(a)(2).
`
`The indictment specified the property subject to
`
`forfeiture for each defendant as "a manufactured, distributed,
`
`dispensed, acquired, or possessed controlled substance." Id.
`
`§ 881(a)(1). The indictment did not identify "equipment of any
`
`kind which are used, or intended for use, in manufacturing,
`
`compounding, processing, delivering, importing, or exporting any
`
`controlled substance" as constituting the predicate property
`
`subject to forfeiture for any of the charges against either De
`
`Leon or Johnson. Id. § 881(a)(2).
`
`Notwithstanding these features of the indictment, the
`
`District Court instructed the jury as follows as to what it would
`
`need to find to return a verdict of guilty for the charges
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`- 10 -
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`underlying the convictions at issue here. With respect to the
`
`charge for the underlying substantive offense, the District Court
`
`instructed, the jury would have to find beyond a reasonable doubt
`
`that: (1) "[O]n the date charged, [the] defendants were on board
`
`the vessel in this case and, at the time, destroyed property that
`
`was on board the vessel;" (2) "the property was a controlled
`
`substance or equipment used for delivering controlled substances"
`
`(emphasis added); and (3) "they did so knowingly and
`
`intentionally." With respect to the charge for the underlying
`
`conspiracy offense, the District Court instructed, the jury would
`
`have to find the same with the one difference being that the jury
`
`would have to find beyond a reasonable doubt that the defendant
`
`"conspired to destroy property [subject to forfeiture] that was on
`
`board the vessel" rather than that the defendant had in fact
`
`destroyed it.
`
`The government does not dispute, however, the
`
`defendants' contention that, despite the instructions, the
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`forfeitable property that serves as the predicate for the
`
`underlying convictions is a "controlled substance" and not
`
`"equipment used for delivering controlled substances." The
`
`government thus does not contend that the defendants' convictions
`
`may be upheld if the evidence suffices to show beyond a reasonable
`
`doubt that each destroyed -- and conspired to destroy -- such
`
`equipment rather than a controlled substance. In this respect,
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`- 11 -
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`the government does not dispute the defendants' contention that
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`the evidence must suffice to show beyond a reasonable doubt that
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`the forfeitable property that each defendant destroyed -- and
`
`conspired to destroy -- was a controlled substance.
`
`Nonetheless, the government contends that the defendants
`
`are wrong to assert -- insofar as they do -- that their acquittals
`
`of the counts that charge each of them with the cocaine possession
`
`offenses in and of themselves require us to sustain their
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`sufficiency challenges to the convictions for the distinct
`
`offenses that they challenge here. We agree. A conviction on one
`
`count may be upheld against a sufficiency challenge, even though
`
`it is seemingly inconsistent with that jury's verdict of acquittal
`
`on another count. See Dunn v. United States, 284 U.S. 390, 393
`
`(1932) ("Consistency in the verdict is not necessary. Each count
`
`in an indictment is regarded as if it was a separate indictment.");
`
`see also United States v. Powell, 469 U.S. 57, 64-65 (1984)
`
`(confirming that Dunn's rule remains good law).
`
`The critical question for us, then, is whether, for each
`
`defendant, the evidence suffices to show beyond a reasonable doubt
`
`that each of them agreed to jettison cocaine from the boat and
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`that each of them did so. For, if the evidence so suffices, then
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`the defendants' challenges to the District Court's denial of their
`
`motions for acquittal necessarily fail.
`
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`B.
`
`Johnson contends that the evidence does not suffice to
`
`support his conviction for either the substantive or the conspiracy
`
`variant of the offense because "the only evidence showing
`
`destruction of cocaine was [his out-of-court confession]," and
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`there was too little independent proof that tends to establish
`
`that the crimes to which he admitted in that confession occurred.
`
`He relies for this proposition on our decision in United States v.
`
`Tanco-Baez, 942 F.3d 7 (1st Cir. 2019).
`
`In Tanco-Baez, we explained why a defendant's out-of-
`
`court confession alone, due to a specific concern about its
`
`reliability, cannot be the sole basis to support a conviction.
`
`That concern arises when there is no substantial independent
`
`evidence in the record that the crime that the confession
`
`encompasses in fact occurred. Thus, we explained in Tanco-Baez,
`
`such a confession must be supported by "substantial" independent
`
`evidence that "tends to establish" that the crime admitted in the
`
`confession in fact occurred in order for that confession to be
`
`given weight in assessing whether the evidence as a whole suffices
`
`to support the conviction beyond a reasonable doubt. Id. at 20
`
`(quoting Opper v. United States, 348 U.S. 84, 93 (1954)).
`
`We emphasized in Tanco-Baez, however, that the kind of
`
`evidence that could serve this corroborating function need not be
`
`strong enough in its own right to support the conviction. Id.
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`- 13 -
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`Rather, such evidence need be strong enough only to provide the
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`kind of support for the confession's reliability that, despite the
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`out-of-court circumstances in which it is claimed to have been
`
`made, would permit it to be deemed reliable when considered along
`
`with the evidence in the record as a whole. Id. Thus, in the
`
`event such corroborating evidence is present, the confession may
`
`be relied upon to support the conviction against the sufficiency
`
`challenge. Id.
`
`Against this legal backdrop, we begin our analysis by
`
`considering the evidence of what Johnson concedes constitutes the
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`out-of-court confession by him to the crimes for which he was
`
`convicted. That confession was introduced at trial through the
`
`testimony of the law enforcement agents to whom Johnson spoke soon
`
`after the interdiction of the boat.
`
`First, Agent Calderón testified, in response to
`
`questions from the prosecutor, about the statements that Johnson
`
`made to him. Specifically, he testified as follows in that regard:
`
`Q: And what, if anything, did [Johnson] say
`about the contents of the boat[] he left on?
`A: He stated that once he was in the boat,
`eso, referring to drugs[,] were in the boat.
`Q: And he used that word specifically, eso?
`A: Eso, correct.
`Q: And when have you heard that in your career?
`A: In previous drug trafficking investigations
`where they will refer to drugs as eso.
`Q: Does eso refer to a particular type of drug
`or just drugs in general?
`A: Mostly cocaine as that was smuggled over in
`this . . . area of responsibility.
`
`- 14 -
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`Q: And what, if anything, did Defendant
`Johnson say about what happened when law
`enforcement approached the vessel on which he
`was?
`A: He stated that when he saw that he was going
`to be interdicted by the marine officers . . .
`he grabbed the small engine [to] which the
`bales were tied up, the doce piezas [was] the
`term that he used, called pieces, within two
`bales. Each one has six pieces, they were
`tied up to a rope to the small engine and he
`jettisoned [it] overboard, he threw them
`overboard into the water, so it would s[ink]
`and it [would]n't be recovered by law
`enforcement.
`Q: I want to unwrap that statement just a
`little bit. You stated that he said that there
`was a small outboard engine onboard?
`A: Correct.
`Q: Did he provide any details about that small
`outboard engine?
`A: I believe -- if I recall correctly it was
`a 30 horsepower.
`Q: A 30 horsepower engine?
`A: Correct.
`Q: You said something about two sacks or
`bales.
`A: Correct. He stated that there were two
`small sacks or bales and each one contained
`six pieces, referring to bricks of cocaine,
`for a total of 12 pieces, that were tied up to
`a rope to the engine, and he lifted it and
`threw them overboard.
`
`
`
`Second, Agent Borges testified about what Johnson said
`
`to him. In doing so, he recounted that he "specifically talked to
`
`Johnson. And during those preboarding questions [Johnson]
`
`said . . . that they threw overboard a small spare engine."
`
`Johnson does not dispute that, from the testimony of
`
`these two agents about the statements that he made to them, a
`
`reasonable juror could find that he admitted that he was aboard
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`- 15 -
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`the boat with another person (De Leon), that the boat was
`
`transporting cocaine, that he tied the cocaine to a spare engine,
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`and that "they" intentionally threw the engine overboard (thereby
`
`destroying the cocaine) upon learning that the boat had been
`
`detected by law enforcement.2 In other words, he does not dispute
`
`that the statements -- together -- constitute a confession to the
`
`crimes at issue here. Johnson nevertheless contends that this
`
`out-of-court confession cannot suffice to support either of his
`
`convictions at issue because there was an absence of "substantial"
`
`independent evidence that "tends to establish" that the crimes
`
`that he admitted committing in his out-of-court confession
`
`occurred. See Tanco-Baez, 942 F.3d at 20 (quoting Opper, 348 U.S.
`
`at 93). We do not agree.
`
`For starters, substantial independent evidence was
`
`introduced at trial that "tends to establish" that the boat on
`
`which Johnson was traveling did have a controlled substance --
`
`cocaine -- aboard it just prior to its interdiction. Francisco
`
`González, the CBP agent patrolling the ocean by plane the night of
`
`
`2 We note, in this regard, that in the testimony reciting
`Johnson's statements, the agents did not at any point assert that
`Johnson himself stated that the material he tied to the engine was
`"cocaine," as he instead referred to what was tied to the engine
`only as "eso" and "doce piezas." But, the agents testified that
`"eso" and "doce piezas" are common slang terms that drug smugglers
`use to refer to cocaine. Johnson does not contend that his
`statements -- because they refer to "eso" and "doce piezas" and
`not "cocaine" -- do not constitute a confession to the crimes
`charged.
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`- 16 -
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`
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`the interdiction, testified that he spotted the boat on which
`
`Johnson was found in the waters prior to its interdiction. He
`
`further testified that the images that he reviewed on the infrared
`
`camera on his plane -- which were also introduced into evidence
`
`and that he testified were taken prior to the boat's interdiction
`
`-- showed "bales or packages" that were "in the middle" of the
`
`boat and thus in a location on the vessel that would have made it
`
`possible for those on board to "get rid of" the "bales or packages"
`
`easily if the boat were intercepted.
`
`González also testified that the boat that the
`
`defendants were on was traveling near "Highway 19," which he
`
`described as a common drug smuggling route off the coast of Puerto
`
`Rico, when it was interdicted and that he had participated in a
`
`number of operations in which large quantities of cocaine had been
`
`seized from vessels traveling close to Highway 19. He further
`
`testified that the boat had no navigational lights running when it
`
`was spotted, and that it was the most "common type" of vessel to
`
`be carrying controlled substances because larger boats were
`
`typically used to smuggle migrants.
`
`In addition, Calderón, who had questioned Johnson
`
`following the boat's interdiction, testified in his own right about
`
`the general practices of the drug trafficking operations that he
`
`had investigated during his time patrolling the waters around
`
`Puerto Rico. That testimony accorded with González's about how
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`- 17 -
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`such operations are usually conducted. It accorded as well with
`
`the description that Calderón had provided about what González had
`
`observed with respect to the boat on which Johnson was found.
`
`This testimony -- and the evidence from the infrared
`
`camera -- was not the only evidence that the government introduced
`
`that bears on whether there was substantial independent evidence
`
`that "tends to establish" that cocaine was on board the boat. The
`
`government also introduced testimony from the handler of a drug
`
`canine, who testified that when the dog conducted a canine sniff
`
`of the boat, it alerted to "[p]ossible contamination of narcotics."
`
`The government also introduced testimony from an intelligence
`
`research analyst about the contents of a cell phone retrieved from
`
`the defendants' boat, as well as a report that contained a
`
`translation of those messages. That evidence, together, showed
`
`that the phone's owner had some kind of transaction planned.
`
`All of this evidence is independent of Johnson's out-
`
`of-court confession, and, at least when considered as a whole, it
`
`constitutes substantial evidence that "tends to establish" that
`
`cocaine was on board the boat prior to its interdiction. It thus
`
`serves the necessary corroborative function with respect to that
`
`aspect of Johnson's out-of-court statements to Calderón about his
`
`criminal conduct.
`
`The government introduced similarly substantial evidence
`
`independent of Johnson's out-of-court confession that "tends to
`
`- 18 -
`
`
`
`establish" another critical aspect of it -- namely, that there was
`
`a spare engine aboard to which Johnson had tied at least some of
`
`the cocaine that was aboard the boat. That evidence includes the
`
`evidence already described that indicates that the boat was
`
`involved in smuggling drugs -- specifically cocaine. It also
`
`includes testimony from Agents Calderón and González that cocaine
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`smugglers often travel with a spare engine on board their boat for
`
`the purpose of ensuring that they have a ready means of disposing
`
`of the cocaine while they are on the open waters.
`
`Agent Calderón testified in that connection that
`
`typically "bale[s]" containing cocaine are "tied" to a "smaller
`
`engine" by drug smugglers so that any cocaine tossed overboard
`
`"will sink and it will not be recovered as evidence by law
`
`enforcement." González, the CBP officer, also testified that drug
`
`smugglers package cocaine in "bales" and then they "attach each
`
`. . . bale[] to another [bale] with a line,. . . and at the end of
`
`the line they put some weight" -- often in the form of a "spare
`
`engine[]" -- so that if "any law enforcement vessel detect[s] them,
`
`they're able to throw it [into] the water and s[i]nk it [in] no
`
`time." Thus, there is substantial independent evidence in the
`
`record that "tends to establish" the aspect of Johnson's confession
`
`in which he admitted that such an engine was on the boat and that
`
`cocaine was tied to it.
`
`- 19 -
`
`
`
`Finally, the government provided independent evidence
`
`that "tends to establish" Johnson's admission that he
`
`intentionally jettisoned the engine after realizing that the boat
`
`had been detected by law enforcement. For example, González
`
`testified that, after the defendants appeared to hear the plane
`
`and the approaching interdicting vessel, and while he was moving
`
`the plane in for a closer look, he could no longer see on the
`
`infrared camera the bales or packages that he had originally
`
`spotted in the middle of the boat. Moreover, when the boat was
`
`interdicted, no bales or packages were found on board or in the
`
`water.
`
`Viewed as a whole, then, the record contains
`
`"substantial" evidence that "tends to establish" each of the key
`
`components of the statements attributed to Johnson that he does
`
`not dispute, in pressing his argument under Tanco-Baez, combined
`
`to constitute a confession to his destruction of cocaine on board
`
`a boat. Accordingly, Johnson's Tanco-Baez-based challenge fails
`
`as to his conviction for the destruction of a controlled substance
`
`offense.
`
`We emphasize that Tanco-Baez reversed a conviction for
`
`possession of a firearm by an unlawful user of a controlled
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`substance under 18 U.S.C. § 922(g)(3) only after finding that the
`
`government did not sufficiently corroborate "each essential fact
`
`that [was] admitted" -- in that case, the defendant's statement to
`
`- 20 -
`
`
`
`law enforcement that he was a long-term marijuana user. 942 F.3d
`
`at 14-15, 25. And, Tanco-Baez did so only after determining that
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`the government was unable to provide any independent evidence that
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`corroborated the admission of habitual drug use. Id. at 24-25.
`
`The government in this case, by contrast, provided
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`substantial independent evidence that "tends to establish" all the
`
`relevant aspects of Johnson's admissions concerning the
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`destruction of forfeitable property offense -- his statements that
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`"eso" or cocaine was on the boat and tied to an engine, and his
`
`confession that "they" intentionally threw the engine overboard.
`
`We do not mean to suggest in emphasizing this distinction that
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`independent evidence of this comprehensive kind is needed to
`
`satisfy the requirements described in Tanco-Baez for permitting an
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`out-of-court confession to be given weight. But, at least in the
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`face of such comprehensively bolstering evidence, we must reject
`
`Johnson's contention that the evidence was not sufficient to
`
`support his convictions for the charged crime, given his conceded
`
`confession to it.
`
`There does remain Johnson's challenge under Tanco-Baez
`
`to his conviction for conspiracy to destroy forfeitable property
`
`on a vessel. But, to the extent that more is needed under Tanco-
`
`Baez to corroborate the aspects of the confession that bear
`
`directly on whether he committed the conspiracy offense -- namely,
`
`- 21 -
`
`
`
`his statement that "they" threw the engine overboard with twelve
`
`"piezas" tied to it -- more was provided.
`
`Calderón testified that the thirty-horsepower engine
`
`Johnson professed to have thrown overboard through his statements
`
`to law enforcement would have "weigh[ed] approximately 50 [or] 60
`
`pounds." Calderón further testified that, based on his experience
`
`investigating drug trafficking, each "pieza" of cocaine typically
`
`would weigh 2.4 pounds. Thus, that testimony supplies independent
`
`evidence that "tends to establish" that Johnson, after setting out
`
`on a multi-day trip on a small boat carrying controlled substances
`
`with De Leon, did not act alone in lifting more than sixty pounds
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`in the dark of night but instead was assisted by his boatmate.
`
`So, here, as well, Johnson's Tanco-Baez-based challenges come up
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`short.
`
`C.
`
`We turn now to De Leon's sufficiency challenges to his
`
`convictions, which also are for destruction of property subject to
`
`forfeiture while aboard a boat and conspiracy to commit that
`
`offense. He challenges both convictions on the ground that the
`
`evidence of these charges was "circumstantial" and "improper[ly]"
`
`required the "jury [to] mount[] inference over inference."
`
`We first consider whether the evidence suffices to
`
`permit a reasonable juror to find beyond a reasonable doubt that
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`cocaine was on the boat and that De Leon assisted Johnson in
`
`- 22 -
`
`
`
`destroying it. Because we conclude that it does, we conclude that
`
`De Leon's conviction for the destruction of forfeitable property
`
`as defined by § 881(a)(1) on a vessel is supported by sufficient
`
`evidence.
`
`De Leon is right that we may not consider the statements
`
`that Johnson made to Calderón in which Johnson purportedly admitted
`
`either that "eso" or that a spare engine that had something tied
`
`to it was aboard the boat. The jury was instructed not to consider
`
`those statements for purposes of assessing whether there was
`
`evidence sufficient to find De Leon guilty of the charges that he
`
`faced, and so we set them aside for present purposes.
`
`There is no bar, however, to our considering the
`
`inculpatory statements by Johnson that Agent Borges testified
`
`Johnson made to him. There was no similar prohibitory instruction
`
`by the District Court to the jury regarding those statements; they
`
`were admitted into evidence against De Leon. Nor does De Leon
`
`argue otherwise. Accordingly, we must take account of Johnson's
`
`statements that "they" threw the "engine" overboard, as he made
`
`that statement to Borges, in assessing whether the quantum of
`
`evidence in the record suffices to support De Leon's convictions.
`
`With those preliminaries out of the way, the central
`
`question is whether Johnson's statement to Agent Borges that "they
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`threw overboard a small spare engine" is sufficient to support De
`
`Leon's conviction for the destruction-of-forfeitable-property-
`
`- 23 -
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`
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`while-on-a-vessel offense when that statement is considered along
`
`with all the other evidenc
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