United States Court of Appeals

For the First Circuit

No. 10-1318

UNITED STATES OF AMERICA,

Appellee,

v.

CRUZ ROBERTO RAMOS-GONZÁLEZ, a/k/a Robert Belleza,

a/k/a Belleza, a/k/a El Galán, a/k/a Crucito,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

Lipez, Siler and Howard, *

Circuit Judges.

Linda Backiel for appellant.

Dina Avila-Jimenez, Assistant United States Attorney with whom

Rosa Emilia Rodriguez-Velez, United States Attorney, Nelson PérezSosa, Assistant United States Attorney, Chief, Appellate Division

and Luke Cass, Assistant United States Attorney, United States

Attorney's Office, were on brief, for appellee.

December 9, 2011

Of the Sixth Circuit, sitting by designation. *
HOWARD, Circuit Judge. Defendant-appellant Cruz Roberto

Ramos-González ("Ramos") appeals his conviction for possession with

intent to distribute in excess of 500 grams of cocaine. See 21

U.S.C. §§ 841(a)(1), 841(b)(1)(B). Among other claims of error,

Ramos contends that his Sixth Amendment right to confrontation was

violated when the district court allowed a forensic chemist to

testify regarding the results of a drug analysis that he did not

conduct. Recent Confrontation Clause jurisprudence compels us to

agree. For the reasons set forth below, we vacate the conviction

and remand for a new trial consistent with this decision.

I. Background

In July 2002, while on routine traffic patrol in Caguas,

Puerto Rico, Transit Police Officers Wanda Vélez-Mojica ("Vélez")

and Javier Reyes-Flores ("Reyes") attempted to stop a pickup truck

with unlawfully tinted windows. The driver refused to yield, and

a chase ensued. Although the officers were able to forcibly stop

the vehicle, the driver fled on foot and managed to elude capture. 

Upon closer inspection of the abandoned truck's interior, Vélez

identified two plastic-wrapped blocks of a substance that she

believed to be drugs, and the blocks were taken to the Puerto Rico

Transit Police Station in Caguas ("Caguas station") for analysis.

At the Caguas station, an agent from the Drug and

Narcotics Division, Juan Santana Rodriguez, conducted a field test

of the blocks. Neither Vélez nor Reyes participated in the field

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test, and there is no evidence that it was observed by any other

officer. The two blocks were subsequently transferred to the

Puerto Rico Forensic Science Institute ("the Institute"), where

they purportedly tested positive for cocaine.

The Institute chemist who analyzed the seized substance,

José Borrero, was initially listed as a prosecution witness;

however, due to mental illness and related treatment, he was

unavailable to testify regarding his analysis. Thus, three days

before the trial commenced, the government amended its witness list

to substitute Kelvin Morales-Colón ("Morales"), another chemist at

the Institute, for Borrero. Despite the substitution, the witness

description remained unchanged, identifying Morales as an expert

who would testify "[b]ased on his specialized training and

experience in the examination and analysis of controlled substances

. . . including the methodology used to examine the [drugs seized

from the pickup], and the conclusions reached based on his

expertise and examination of the substances."

At trial, neither Vélez nor Reyes testified definitively

as to the contents of the blocks. Vélez, who was at the Caguas

station but not in the room when the blocks were analyzed, stated

that she "believe[d]" they tested positive for cocaine. Reyes's

only testimony that the seized blocks were cocaine was his 2002

statement memorializing the incident, which he read into the

record. In the statement, he reported that Rodriguez had performed

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a field test on the evidence which yielded a positive result for

cocaine. Reyes did not testify, however, that he was present when

the field test was performed, and Rodriguez himself did not testify

at trial.

The government then called Morales, as its expert

witness, to testify regarding the composition of the seized

substance. After outlining the Institute's intake and chain of

custody procedures, Morales began to discuss the results of

Borrero's test. Defense counsel objected on the basis that Morales

had no personal knowledge of the underlying analysis, but the trial

court determined that, based on Morales's experience and

familiarity with official procedure , he should be allowed to 1

testify as to the veracity of this particular test. Morales in

fact had no involvement in testing the seized substance, and was no

longer working in Borrero's department when the testing occurred. 

Morales confirmed that the evidence envelope entered by

the government bore the signature of his colleague José Borrero,

which he recognized from their years of working together. Based on

the envelope's unique number, Morales explained that the analyzed

substance was that which had been seized by Reyes and delivered to

the Institute by Rodriguez, and that it was evidence in a matter

At the time of his testimony, Morales had been employed as a

1

chemist with the Institute for eight years. He worked for six

years in the controlled substances division and in 2007 moved to

forensic chemistry.

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involving Ramos. He verified that the information on the evidence

envelope matched the results reported in Borrero's certificate of

analysis, and when questioned about those results, provided the

following testimony:

PROSECUTOR: Do you know the results of -- I'm

sorry. Looking at the envelope here, can you

say what are the results of this test that was

conducted?

MORALES: Both bricks were positive for

cocaine, and had a combined weight of 2,116

grams, including its wrapping in the plastic.

No further evidence was introduced at trial to prove that the

blocks seized from the truck contained cocaine.

Ramos was ultimately convicted by a jury and sentenced to

327 months in prison. This timely appeal ensued.

II. Analysis

A. Standard of Review

We first address the appropriate standard of review for

the Sixth Amendment claim. The government argues that because

Ramos did not specifically invoke the Sixth Amendment in his

objection, he failed to preserve a cognizable Confrontation Clause

challenge. See United States v. Mercado, 412 F.3d 243, 247 (1st

Cir. 2005) ("[A]n objection on one ground does not preserve

appellate review of a different ground."). Accordingly, the

government contends that the district court's ruling should be

reviewed for plain error. See United States v. Ziskind, 491 F.3d

10, 14 (1st Cir. 2007). We disagree. Defense counsel alerted both

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the court and the government to the basis of his objection,

asserting:

I originally thought [Morales] was the chemist

who conducted the analysis of these controlled

substances, but I believe [he is] not. It was

Mr. Borrero. So I object to the fact that he

has no personal knowledge of the test being

conducted.

(emphasis added). In context, it was clear that counsel was

objecting to the inability to confront the declarant. See United

States v. Cabrera-Rivera, 583 F.3d 26, 36 (1st Cir. 2009). His

precise language, which may best be understood as a "short-hand

reference to an objection on confrontation grounds," sufficiently

raised the Sixth Amendment issue, and we therefore review the

challenge de novo. Id. If Ramos's Sixth Amendment rights have

been violated, his conviction must be vacated unless the government

demonstrates that the error was harmless beyond a reasonable doubt. 

See id. (citing United States v. Earle, 488 F.3d 537, 545 (1st Cir.

2007)).

B. Confrontation Clause Challenge

Ramos contends that Morales's testimony regarding the

substance of Borrero's report was barred by the Sixth Amendment, as

construed in Crawford v. Washington, 541 U.S. 36 (2004), and

Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009). Given the

evolving foundation upon which this claim rests, we first review

briefly the current state of the Supreme Court's Confrontation

Clause jurisprudence.

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The Sixth Amendment guarantees that "[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to be

confronted with the witnesses against him . . . ." U.S. Const.

amend. VI. In Crawford, which effected a shift in Confrontation

Clause doctrine, the Supreme Court established a new constitutional

baseline: admitting "testimonial" statements of a witness not 2

present at trial comports with the Sixth Amendment "only where the

declarant is unavailable, and . . . the defendant has had a prior

opportunity to cross-examine [the declarant]." 541 U.S. at 59. 

Subsequently, in Melendez-Diaz, the Court held that certificates of

analysis, like the report prepared by Borrero here, are

appropriately classified as testimonial statements for purposes of

the Sixth Amendment. 129 S. Ct. at 2532. Thus, the admission of

such a report, for the truth of its contents, necessitates

accompanying live testimony by a competent witness. Id.

In a decision which post-dates the argument in this case,

the Court further clarified in Bullcoming v. New Mexico, 131 S. Ct.

2705 (2011), that where a certified forensic lab report is

introduced as substantive evidence, the surrogate testimony of "a

scientist who did not sign the certification or perform or observe

A statement ranks as "testimonial" where it has a "primary 2

purpose of establishing or proving past events potentially relevant

to later criminal prosecution." Bullcoming v. New Mexico, 131 S.

Ct. 2705, 2714 n.6 (2011) (internal quotation marks omitted); see

also Nardi v. Pepe, ___ F.3d ___, 2011 WL 5840286, at *4 (1st Cir.

2011).

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the test reported in the certification" does not satisfy the

accused's right to confrontation. Id. at 2710. Thus, where a

testimonial certified forensic lab report is offered for its truth

as evidence in a criminal prosecution, the accused has at least the

right to confront the scientist who performed, observed, or

supervised the analysis.

These Supreme Court cases are instructive, but they do

not squarely address an issue that must be explored in this case: 

the extent to which the Sixth Amendment permits an expert witness

to disclose the substance of a previously unadmitted forensic lab

report that he did not draft. See Bullcoming, 131 S. Ct. at 2722

(Sotomayor, J., concurring) ("We would face a different question if

asked to determine the constitutionality of allowing an expert

witness to discuss others' testimonial statements if the . . .

statements were not themselves admitted as evidence."). Indeed,

the Court has granted certiorari in People v. Williams, 238 Ill.2d

125, 939 N.E.2d 268 (Ill. 2010), cert. granted, 131 S. Ct. 3090

(U.S. June 28, 2011) (No. 10-8505), to consider a version of this

question. See id. (considering whether the disclosure of the

substance of a forensic lab report, through an expert witness who

took no part in the analysis, violates the Confrontation Clause). 

It is within this developing framework that we examine the case at

bar.

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The government argues primarily that, unlike in MelendezDiaz, Morales's testimony constituted permissible expert review of

Borrero's report, which was itself never actually offered as

evidence. See Fed. R. Evid. 703 (explaining that facts or data of

a type upon which experts in the field would reasonably rely in

forming an opinion need not be admissible in order for the expert's

opinion based on the facts and data to be admitted). Absent

further clarification from the Court, the reconciliation of

Crawford, Melendez-Diaz, and Bullcoming -- which forbid the

introduction of testimonial hearsay as evidence in itself -- with

Rule 703, which permits expert reliance on otherwise inadmissible

testimonial hearsay, will necessarily involve a case-by-case

assessment as to the quality and quantity of the expert's reliance. 

See United States v. McGhee, 627 F.3d 454, 460 (1st Cir. 2010).

More specifically, the assessment is one of degree. 

Where an expert witness employs her training and experience to

forge an independent conclusion, albeit on the basis of

inadmissible evidence, the likelihood of a Sixth Amendment

infraction is minimal. See United States v. De La Cruz, 514 F.3d

121, 134 (1st Cir. 2008) (holding that the Confrontation Clause

does not limit experts offering their own opinion regardless of the

independent admissibility of the material relied upon); see also

Bullcoming, 131 S. Ct. at 2722 (Sotomayor, J., concurring) ("[T]his

is not a case in which an expert witness was asked for his

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independent opinion about underlying testimonial reports that were

not themselves admitted into evidence."). Where an expert acts

merely as a well-credentialed conduit for testimonial hearsay,

however, the cases hold that her testimony violates a criminal

defendant's right to confrontation. See, e.g., United States v.

Ayala, 601 F.3d 256, 275 (4th Cir. 2010) ("[Where] the expert is,

in essence, . . . merely acting as a transmitter for testimonial

hearsay," there is likely a Crawford violation); United States v.

Johnson, 587 F.3d 625, 635 (4th Cir. 2009) (same); United States v.

Lombardozzi, 491 F.3d 61, 72 (2d Cir. 2007) ("[T]he admission of

[the expert's] testimony was error . . . if he communicated out-ofcourt testimonial statements . . . directly to the jury in the

guise of an expert opinion."). In this case, we need not wade too

deeply into the thicket, because the testimony at issue here does

not reside in the middle ground.

The government is hard-pressed to paint Morales's

testimony as anything other than a recitation of Borrero's report. 

On direct examination, the prosecutor asked Morales to "say what

are the results of the test," and he did exactly that, responding

"[b]oth bricks were positive for cocaine." This colloquy leaves

little room for interpretation. Morales was never asked, and

consequently he did not provide, his independent expert opinion as

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to the nature of the substance in question. Instead, he simply 3

parroted the conclusion of Borrero's report. Morales's testimony

amounted to no more than the prohibited transmission of testimonial

hearsay. While the interplay between the use of expert testimony

and the Confrontation Clause will undoubtedly require further

explication, the government cannot meet its Sixth Amendment

obligations by relying on Rule 703 in the manner that it was

employed here.

As an alternative basis for admissibility, the government

points to language from Melendez-Diaz to argue that "it is not the

case[] that anyone whose testimony may be relevant in establishing

the chain of custody, authenticity of the sample, or accuracy of

the testing device, must appear in person . . . ." 129 S. Ct. at

2532 n.1. This argument misses the mark. Ramos does not contest

the prosecution's use of Morales to establish the chain of custody

or the authenticity of the sample; rather, he challenges the use of

Morales to channel Borrero's testimonial statement that the

substance was cocaine. Although Morales was intimately familiar

with the Institute's policies and procedures, knew Borrero

personally, and was likely confident in the accuracy of the test

results, the "obvious reliability of a testimonial statement does

not dispense with the Confrontation Clause." Bullcoming, 131 S.

The government acknowledged at oral argument that Morales was 3

never asked to give his independent opinion as to the nature of the

substance.

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Ct. at 2715 (internal quotation omitted). The Sixth Amendment

"commands, not that evidence be reliable, but that reliability be

assessed . . . in the crucible of cross-examination." Crawford,

541 U.S. at 61.

Reciting the conclusion of Borrero's report into the

record raised a host of concerns, to which Morales was ill-equipped

to reply. For example, defense counsel could not effectively query

Morales about whether any circumstance or condition affected the

integrity of the sample or the validity of the analysis, and what

test and testing process Borrero employed. See Bullcoming, 131 S.

Ct. at 2714-15. Nor could defense counsel, through Morales,

"expose any lapses or lies on [Borrero's] part." Id. Perhaps more

significantly, as in Bullcoming, Morales knew relatively little of

the severity of Borrero's mental illness, or the extent to which it

may have affected the quality of his work. See id. Such issues

were grist for cross-examination; the failure to provide Ramos with

that opportunity thus violated his right of confrontation.

C. Harmlessness of the Error

The government argues that any Sixth Amendment error was

harmless beyond a reasonable doubt. See Cabrera-Rivera, 583 F.3d

at 36 (citing Earle, 488 F.3d at 545). In evaluating harmlessness,

we consider several factors, including whether the challenged

statements were central to the prosecution's case; whether the

statements were merely cumulative of other, properly admitted

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evidence; the strength of corroborating or contradicting evidence;

the extent to which cross-examination was permitted; and the

overall strength of the case. Earle, 488 F.3d at 546.

The harmlessness determination in this case depends

principally on whether the information disclosed by Morales was

merely cumulative of the testimony offered by Officers Reyes and

Vélez. In so arguing, the government asserts that "[a]n officer is

permitted to express his opinion that a field tested substance is

cocaine," see United States v. Paiva, 892 F.2d 148, 160 (1st Cir.

1989), and that scientific analysis and expert testimony are not

necessary to prove the illicit nature of a substance, United States

v. Valencia-Lucena, 925 F.2d 506, 512 (1st Cir. 1991). Such

testimony has been deemed adequate to establish the composition of

an allegedly controlled substance, however, only where the witness

was found to be reliable because of her unique familiarity with the

drugs in question.

For example, in Valencia-Lucena, we held that the

"[i]dentification of a substance as a drug may be based upon the

opinion of a knowledgeable lay person," where that lay person was

a confidential informant who was formerly one of the drugtraffickers, and who had both intimate knowledge of the alleged

conspiracy to distribute and prior direct contact with the drugs. 

925 F.2d at 512. Similarly, in Paiva, we found that the district

court did not abuse its discretion in permitting testimony by a

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long-term drug addict that the substance she had seen and tasted

was cocaine. 892 F.2d at 160-62.

By contrast, the indicia of reliability here were far

less substantial. Neither Vélez nor Reyes testified as to the

nature of the substance based on their experience or intimate

knowledge. The sum of their testimony consisted of Vélez's

statement that the blocks "appeared to be a controlled substance,"

and the officers' recollections that Rodriguez's preliminary field

test -- for which they were not present -- showed the presence of

cocaine. This is not the type of specially reliable lay testimony

that was proffered in Valencia-Lucena or Paiva, and it does not

meet the stringent requirement of proof beyond a reasonable doubt.

Further, to the extent that the government argues that

there was additional corroborating evidence, that evidence does not

go to the central issue. The fact that several law enforcement

agents identified Ramos as the truck's operator, and the presence

inside the truck of various identifiers bearing Ramos's name, go to

the question of whether Ramos was in fact the driver of the truck,

and not whether, as Morales concluded, the substance in the truck

was cocaine.

Accordingly, Morales's testimony was neither cumulative

of nor sufficiently corroborated by alternative evidence, and it

comprised the only compelling basis for the jury to conclude a

critical element of the government's case - that the substance

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seized from the truck was cocaine. We cannot conclude that the

presence of cocaine would have been proved without the testimony of

Morales, and therefore the admission of his testimony was not

harmless beyond a reasonable doubt.

III. Conclusion

Although Ramos presses additional claims of error, we

need go no further. For the reasons set forth above, we vacate the

judgment of conviction and remand to the trial court for further

proceedings. It is so ordered.

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