Of the Second Circuit, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 08-1463

UNITED STATES OF AMERICA,

 Appellee,

v.

SALVI RAFAEL BENITEZ-AVILA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jay A. García-Gregory, U.S. District Judge]

Before

Torruella, Leval , and Lipez, *

Circuit Judges.

 José C. Romo Matienzo for appellant.

 Germán A. Rieckehoff, Assistant United States Attorney, with

whom Nelson Pérez-Sosa, Assistant United States Attorney, Chief,

Appellate Division, and Rosa E. Rodríguez-Vélez, United States

Attorney, were on brief for appellee. 

June 9, 2009
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LEVAL, Circuit Judge. Defendant Salvi Rafael BenitezAvila appeals from his conviction on numerous counts arising from

his armed robbery of a consular representative of a foreign

government. 18 U.S.C. § 112(a). On appeal, Defendant’s primary

contention is that the court erred in admitting hearsay evidence

which tended to identify him as the assailant. We agree with

Defendant that the evidence should not have been received.

However, in light of the very strong evidence of his guilt, the

error was harmless. We therefore AFFIRM his conviction.

BACKGROUND

The evidence, viewed in the light most favorable to the

verdict, was as follows. See United States v. Casas, 356 F.3d 104,

109 (1st Cir. 2004). On the evening of August 4, 2005, Adriana

Bolaños (“Bolaños”), who was Costa Rica’s Consul General to the

United States (assigned to Puerto Rico), accompanied by her tenyear-old step-daughter, Valeria Larco (“Valeria”), went to a Total

Gas Station which was owned by her husband, Victor Larco (“Larco”),

to pick up the day’s cash receipts and take them to the bank.

Bolaños went into the sales-booth in the mini-mart of the

gas station, tallied the sales in the cash register (which totaled

approximately $8,000), placed the money in her purse, and stepped

out of the mini-mart. As Bolaños and her step-daughter stepped out

they were approached by two men, one of whom held an assault rifle.
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The man with the rifle (the “assailant”) pointed it at

Bolaños, grabbed her by the arm, pointed the weapon at her ribs,

and demanded her purse. After a struggle, Bolaños gave him her

purse and he ran away.

Two days later, Bolaños saw him again as she went to the

gas station to buy milk. Terrified, she got into her car and sped

off.

On August 9, 2005, Bolaños was interviewed by Officer

Emmanuel Martínez (“Martínez”) of the Puerto Rico Police Department

and described the assailant. Bolaños also told Officer Martínez

that if she were to see her assailant again, she would be able to

identify him because she had struggled with him and he was right in

front of her during the struggle.

Bolaños also met with Agent Seth Emers (“Emers”) of the

Diplomatic Security Service (“DSS”) of the United States Department

of State. Emers asked Bolaños to come to the DSS office, which had

access to a computerized database of pictures of and information

about people with criminal records. The database allows the user

to search based on criteria such as race, gender, age, physical

traits, height, address, and aliases.

Agent Emers and Officer Martínez used this database and

descriptors they had of the assailant to generate photographs of

suspects. They showed Bolaños approximately 10 to 15 photographs

of potential suspects on the computer. While Bolaños did not say
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definitively that any of the photographs showed the assailant, she

did say of Defendant’s photograph that it closely resembled the

assailant, commenting on the short dark hair, similar complexion,

and facial hair.

Emers created another photo array of suspects (including

Defendant), which he sent electronically to be shown to Valeria,

who had returned to Peru where she lives with her mother. Valeria

made no identification.

Believing that the robbery had probably been an “inside

job” in which an employee had tipped off the robbers that Bolaños

would be leaving the gas station with a large amount of cash, the

investigating officers interviewed employees and former employees

of the gas station, including Tania Rosario (“Rosario”), who had

worked at the Total station the night of the incident.

They also subpoenaed telephone records which showed that

Rosario and her friend, Lina Rivera (“Rivera”), who was also

present at the gas station the night of the robbery, had placed

calls to a common telephone number on the night of the robbery,

including one just prior to the robbery. The number they called

was a prepaid cell phone for which no subscriber information was

available. However, the number was listed in Rosario’s contacts as

“El Pri,” which can be an abbreviation of “primo,” or cousin.

Defendant, Rosario, and Lina Rivera were close friends, all living
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in a small neighborhood called Barrio Colo, and called one another

“primo.”

Agent Emers testified that Bolaños’s husband Larco had

received a tip from an informant that one of the assailants was

known as “Gemelo,” which in Spanish means twin. Emers added that

Defendant is a twin, having established that fact by examining

mugshots of Defendant and his now deceased twin brother, and seeing

that they “looked exactly alike.”

Emers and Martínez tried to locate Defendant but could

not find him at his house or his girlfriend’s house, so they left

him a citation to appear at the police station. They then asked

Rosario to call Defendant in their presence, using her cellular

phone.

Emers watched as Rosario placed the call. She called the

number she had called on the night of the robbery, which was listed

in her cell phone as “El Pri.” Emers was able to hear Rosario’s

conversation. Rosario identified herself as cousin. She followed

Emers’s directions: to state that the investigators did not have

any hard evidence as to what happened, that he shouldn’t worry, and

that he should come into the police station as instructed.

Defendant showed up at the police station the very next morning,

although the citation directing him to appear was for two days

after. He was asked to come back, because they were not prepared

for the lineup.
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Some time later, when the police were prepared to stage

a lineup, they called Defendant to return. Bolaños came to the

police station to view a lineup. The lineup included Defendant and

four police officers. The police officers placed in the lineup

were “comparable looking” to Defendant. In accordance with police

procedure, they were all similar in race, color, and size to

Defendant. All had short, dark hair, similarly styled to

Defendant. All five men in the lineup wore blue robes and booties

so that they were dressed the same and so that their shoes were

concealed. Because the police officers did not have facial hair

but Defendant did, facial hair was drawn on the police officers

with a liner. Bolaños did not see the preparations for the lineup.

Defendant stood in position number 3, the middle of the

lineup. Bolaños viewed the lineup from the other side of a large

glass window in an adjoining room. Prior to viewing the lineup,

she was instructed several times to identify her assailant only if

she could do it with absolute certainty. When the vertical blinds

on the glass window went up, Bolaños almost immediately identified

Defendant and became nearly hysterical. Defendant was then

arrested.

At trial, both Bolaños and Valeria identified Defendant

as the armed robber.
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DISCUSSION

I. Hearsay

Defendant contends on appeal that, over his objection,

the court erroneously admitted prejudicial, incriminating hearsay.

His argument has considerable merit. We review the denial of a

hearsay objection for abuse of discretion. United States v.

Barone, 114 F.3d 1284, 1296 (1st Cir. 1997).

a. The “Twin” Hearsay

The inadmissible evidence in question, as recited above,

was the following: Agent Emers testified that the owner of the

Total Gas Station received a tip from an informant that the

assailant was someone known in the street as “Gemelo,” or the

“Twin.” Emers then testified Defendant was a twin, explaining that

he had examined photographs of Defendant and Defendant’s deceased

brother which “looked exactly alike.”

Both branches of this testimony - the part telling that

the robber was known as the “Twin” and the part telling that

Defendant was a twin - were hearsay. Hearsay evidence proves a

fact by a statement made out of court which asserted the fact as

true. Fed. R. Evid. 801(c). The principal vice of hearsay is the

inability of the opponent of the evidence to cross-examine the

person who made the out-of-court statement (the “declarant”). The

opponent of the evidence is thus unable to get the declarant’s

testimony as to whether in fact the declarant said what has been
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attributed to him, what he meant by it, whether he had a reliable

basis for the assertion, and whether he might have been influenced

by a bias which undermines his reliability. Barone, 114 F.3d at

1292 (“The rule against hearsay reflects concerns about the

trustworthiness of out-of-court statements, arising from the fact

that such statements are not subject to the tests normally applied

to in-court testimony to ensure its reliability.”)

The evidence that the robber was a person known in the

street as “Twin” was double hearsay. It demonstrated that the

robber was known as “Twin” by a statement made out of court which

asserted that fact as true. Agent Emers was testifying to what he

had been told by Larco, who in turn was relying on something he had

been told by an unnamed informant. Defendant had no opportunity to

cross-examine Larco on whether he was quoted correctly by Emers,

much less to cross-examine the unknown informant to determine

whether he said the robber was known as Twin, and if so whether he

had a sound basis for saying it.

The demonstration that Defendant was a twin through

Emers’s testimony was also hearsay. It depended on the proposition

that the two identical looking photos were in fact photos of

Defendant and of his brother. There was neither evidence of a

nonhearsay nature, nor foundation for an exception to the hearsay

rule, such as Fed. R. Evid. 803(8) (public records and reports), to
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support the conclusion that the photographs were in fact of

Defendant and his brother.

Through hearsay, these two parts of Emers’s testimony

told the jury that the robber was a twin, and that Defendant was a

twin – which in combination gave considerable corroboration to the

legitimate evidence identifying Defendant as the robber, without

Defendant having any meaningful opportunity to challenge it by

cross-examination.

The government argues that there was no violation of the

hearsay rule. It asserts that the evidence was not offered to

prove the truth of the matter stated in the out-of-court statements

– that the robber was known as Twin and that Defendant was a twin

– but rather to show that Agent Emers had a reasonable basis for

focusing his investigation on Defendant.

The government is of course correct that an out-of-court

statement, which would be inadmissible hearsay if offered to prove

the truth of what was asserted in the statement, may be properly

admitted to prove other facts, such as the awareness of the

declarant, or of the person to whom the statement was made, of what

was said in the statement. See United States v. Murphy, 193 F.3d

1, 6 n.2 (1st Cir. 1999). The admissibility of an out-of-court

statement to prove some fact other than what was asserted in the

statement, however, assumes that the other fact for which the

statement is received is relevant to an issue in the trial and, if
If the defendant undertakes to impeach the government’s 1

evidence of his guilt by suggestions that the agents who

investigated him were motivated by bias or mistake, etc., these

issues may then become relevant. See United States v. Cruz-Diaz,

550 F.3d 169, 176-80 (1st Cir. 2008); see also United States v.

Maher, 454 F.3d 13, 19-20 (1st Cir. 2006) (criticizing admission of

similar evidence to show context, but finding no plain error). 

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so, that the potential for prejudice resulting from the likelihood

that the jury might consider the statement for its impermissible

hearsay purpose does not unfairly outweigh its proper probative

value on the other question. Fed. R. Evid. 403.

In this instance, the evidence fails those tests. Agent

Emers’s basis for focusing his investigation on Defendant was not

a relevant issue in the trial. The issue in a criminal trial, upon

which the government bears the burden of proof, is whether the

evidence proves the defendant’s guilt beyond a reasonable doubt.

Whether government agents had a reasonable, good faith basis for

investigating the defendant is a completely different question,

which is not in issue unless the defendant puts it in issue. The 1

government does not suggest that Defendant had challenged Emers’s

good faith in focusing his investigation on Defendant, so as to put

in dispute whether Emers had a bias which led him to fabricate

evidence against Defendant. In the absence of a challenge by

Defendant, Emers’s good faith was not in issue so that evidence

demonstrating his basis for focusing his investigation on Defendant

was not relevant.
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We recognize that prosecutors, in an effort to make the

evidence of defendants’ guilt more lively and to captivate the

jurors with the drama of the hunt for the solution to the crime,

will often organize the presentation of the evidence of guilt in

the form of a narrative of the investigation. We do not suggest

that prosecutors are prohibited from organizing the legitimate

evidence in a lively, appealing manner. But it does not follow

that, by choosing a more seductive narrative structure for the

presentation of the evidence of guilt, prosecutors expand the scope

of the relevant legitimate evidence, so as to convert prejudicial

and otherwise inadmissible evidence into admissible evidence. See

United States v. Reyes, 18 F.3d 65, 70 (2d Cir. 1994). Had the

Assistant United States Attorney simply presented the evidence

which told the jurors the facts of the robbery and identified

Defendant as the robber, it is clear that the “twin” hearsay would

not have been admissible. It did not become admissible merely

because the AUSA chose to present the story to the jury in a more

exciting form, catching them up in the chase. A prosecutor cannot

justify the receipt of prejudicial, inadmissible evidence simply by

calling it “background” or “context” evidence, or by asserting that

it has a nonhearsay relevance to an issue that is itself not

relevant. See id. (a court must examine “whether the probative

value of this evidence for its non-hearsay purpose is outweighed by
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the danger of unfair prejudice resulting from the impermissible

hearsay use of the declarant’s statement”).

 We have previously warned the government against

“misguided use” of hearsay testimony and have cautioned that, by

offering such evidence, the government risks losing convictions it

has obtained. Casas, 356 F.3d at 117-118, 120. It seems

appropriate to repeat that caution. It should be clear enough that

the prosecution would have been prohibited by the hearsay rule from

introducing testimony by Emers that Larco had been told by an

informant that Defendant committed the robbery. The “twin”

evidence here received, although slightly less prejudicial, was

inadmissible for the same reasons. In some circumstances, we might

well be compelled to vacate the conviction of a guilty defendant

because of the ill advised introduction of inadmissible hearsay

under the claim that it served a nonhearsay purpose in relation to

an issue, which in fact was neither important, nor even relevant,

to the issues in dispute.

The cases cited by the government in justification are

not to the contrary. The proposition that hearsay does not include

statements showing context or background and not received for the

truth of what they said should not be understood to mean that any

kind of statement, no matter how prejudicial, may be introduced if

it shows what might loosely be described as context or background.

First, the aspects of “context” or “background” for which the
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evidence is offered must be relevant. And even if it is relevant

its probative value in relation to the nonhearsay purpose must not

be “substantially outweighed by the danger of unfair prejudice.”

Fed. R. Evid. 403. Although we have previously approved of the

receipt of statements offered for a nonhearsay purpose such as to

show context or background, one must carefully examine the facts to

understand the basis for admission in each case.

In United States v. Bailey, 270 F.3d 83 (1st Cir. 2001),

the contested evidence was an agent’s testimony that a conspirator,

who was caught collecting a shipment of a barrel of marijuana,

agreed to cooperate with the government by having agents accompany

her to deliver the barrel to the intended recipient. She then

drove her van to her residence, with two task force agents hiding

in the back, and placed a phone call, punching in a code. Fifteen

minutes later, the defendant came up to the van, opened the back of

the van, and fled upon seeing the agents, but was apprehended. Id.

at 87. The agents recovered his pager, which reflected receipt of

the call from the cooperator’s telephone and the code she had

entered. In rejecting the defendant’s claim of hearsay, we

stressed that the evidence did not include any out-of-court

statement of fact which could be considered for its truth; it

included only conduct of the cooperator upon having agreed to

cooperate by delivering the barrel to its intended recipient, and

the defendant’s actions. “The agent did not testify that [she]
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pointed at [the defendant] or in any way made an out of court

declaration regarding his identity.” Id. at 87. While the opinion

included the proposition that “statements offered only for

context[] do not constitute hearsay,” id., our reasoning relied on

the fact that there had been no statement of any kind – only

conduct, and that conduct which asserts no fact is not hearsay.

The opinion gives no support to the proposition here advanced by

the government that an out-of-court statement of the cooperating

coconspirator identifying the defendant as the intended recipient

would have been admissible for the nonhearsay purpose of explaining

the reasonableness of the agents’ conduct in then arresting the

defendant. To the contrary, in stressing that the cooperator did

not “point[] at [the defendant] or in any way make an out of court

declaration regarding his identity [as the intended recipient of

the marijuana],” we strongly implied that had she made such a

statement, it would have been inadmissible hearsay, notwithstanding

its capacity to explain why the agents arrested the defendant.

In United States v. Rodriguez, 525 F.3d 85 (1st Cir.

2008), the defendant contended that his conviction should be

vacated because of the receipt of unfairly prejudicial,

incriminating hearsay testimony of a government agent, which

summarized testimony of other witnesses but as to some details went

beyond it. We stated expressly that the agent’s statements

“constituted improper hearsay testimony.” Id. at 96. When it came
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to determining whether to overturn the defendant’s conviction on

that basis, we found that the legitimate evidence so powerfully

proved not only the defendant’s guilt, but also most of what the

agent had improperly testified to, that the hearsay was “not so

unfairly prejudicial” as to warrant overturning the conviction, id.

at 98, especially in view of the fact that the defendant needed to

“surmount the high hurdle of plain error review” as a result of his

failure to object. Id. at 96. It is odd that the government cites

this case as approval of the nonhearsay nature of the evidence it

introduced here when we explicitly confirmed that the testimony

“constituted improper hearsay” and we furthermore stressed that

“[t]his court on several occasions has strongly cautioned the

Government against the practice.” Id. at 95-96.

In United States v. Vazquez-Rivera, 407 F.3d 476 (1st

Cir. 2005), the defendant was charged with drug selling on behalf

of the Soto drug dealing organization. The defense called the

defendant’s brother, Victor, who testified that the defendant was

“not involved in Roberto Soto’s operations and . . . never

distributed cocaine or heroin.” Id. at 481. To impeach Victor’s

denial that the defendant dealt in drugs, the government then

called an agent who had interviewed Victor when Victor was charged

with drug dealing and was seeking the benefit of the “safety valve”

provisions of 18 U.S.C. § 3553(f), which under certain

circumstances allows defendants to be sentenced below the mandatory
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minimum if they truthfully provide to the government all

information and evidence they have concerning their offense and

offenses that were part of the same course of conduct or a common

scheme or plan. The agent testified that Victor had initially

refused to talk about his brother or about Roberto Soto. When told

that he could not receive credit under the safety valve provision

unless he told what he knew, Victor eventually “admitted that his

brother worked for [Soto] . . . he was a runner for [him].” Id. at

481. The agent was then shown a copy of the notes he took during

this interview. When asked why he had written down that the

defendant was a “compadre” of Soto, the agent answered, “Because I

didn’t know that. I knew about [the Soto] organization, about the

drug trafficking, but I had no knowledge that [defendant] was the

‘compadre’ of [Soto]. So I felt that was something I had to write

down to remember it.” Id. at 482.

On appeal, the defendant contended that the agent’s

report of Victor’s prior statements was hearsay. We rejected the

claim, explaining that prior inconsistent statements are admissible

to impeach a witness’s testimony. As for the agent’s statement

that he knew about the Soto organization, we found that it was not

hearsay because it was received not to prove that a conspiracy

existed but rather to explain why the agent had omitted that

information from his notes. Id. at 482-83.
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What we said in Vazquez-Rivera, however, does not justify

the government’s offer of the “twin” hearsay in this case. The

question here is not whether a statement made out of court may be

received to prove some relevant fact other than the truth of what

it asserts. That proposition is well-established. See Bailey, 270

F.3d at 87. It does not follow, however, that an investigating

agent may testify to having received hearsay information which

shows the defendant’s guilt to explain something that is not a

relevant issue, such as why the agent focused the investigation on

the defendant. When an out-of-court statement is received to prove

something other than what was asserted in the statement, the

nonhearsay issue must be relevant. Fed. R. Evid. 401.

Furthermore, the “danger of unfair prejudice” from the hearsay must

not “substantially outweigh[]” the probative value from the

nonhearsay purpose. Fed. R. Evid. 403. In this case, the danger

of prejudice from the jury’s consideration of the hearsay statement

as proof of what it asserted far outweighed the proper probative

value of the evidence, which was nil.

b. Rosario’s call to the Defendant. Defendant also

contends that the court erred in admitting testimony about the

telephone call Rosario placed in Emers’s presence. Emers testified

that, after the police had left Defendant a citation to appear at

the police station, Rosario, following Emers’s instructions, placed

a call to the number her telephone was shown to have called on the
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night of the robbery, which number was listed in her contacts as

“El Pri,” an apparent abbreviation of el primo, or cousin. Emers

testified that he heard Rosario identify herself as cousin and say

that the police did not have any hard information, so that he

should not worry but should go to the police station.

With respect to this evidence, Defendant’s hearsay

objection is without merit. It was not hearsay. It reported

conduct observed by Emers to confirm that Rosario, who worked at

the gas station, had functioned as Defendant’s accomplice, tipping

him off that Bolaños was about to carry out the cash register

receipts. Emers’s firsthand account of what he heard in the

telephone call showed that Defendant and Rosario had a close,

trusting relationship and called each other cousin, as suggested in

Rosario’s contacts list, and that Defendant, who presumably knew

Rosario had been questioned about the robbery, was worried about

what the police knew about the robbery.

While this evidence did involve the repetition of things

that had been said out of court, none of it tended to prove the

truth of any fact asserted in out-of-court statements. And when

Defendant came to the police station the next morning in response

to Rosario’s call to the number of “El Pri,” which she had called

on the day of the robbery, it showed that Defendant was the person

Rosario had called just before the robbery.
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II. Harmless Error

 One of Defendant’s hearsay objections has merit. The

other does not. The question for the Court is whether Defendant’s

conviction should be overturned by reason of the erroneous

admission of the hearsay relating to the “twin” issue. We conclude

that it should not. Defendant’s guilt was thoroughly and

convincingly established. While the “twin” hearsay should not have

been received, we conclude that it was ultimately of little or no

importance. There is no reasonable likelihood that the verdict

would have been any different in the absence of this hearsay

evidence. Improper admission of testimony is “harmless if it is

highly probable that the error did not influence the verdict.”

Casas, 356 F.3d at 121. “There is no bright-line rule”; the

“harmlessness determination demands a panoramic, case-specific

inquiry considering, among other things, the centrality of the

tainted material, its uniqueness, its prejudicial impact, the uses

to which it was put during the trial, the relative strengths of the

parties’ cases, and any telltales that furnish clues to the

likelihood that the error affected the factfinder’s resolution of

a material issue.” Id. (quoting United States v. Sepulveda, 15

F.3d 1161, 1182 (1st Cir. 1993)). In view of the powerful evidence

of Defendant’s guilt, including particularly the strong

identification made by the victim of the robbery, the application
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of this test persuades us without doubt that the error was harmless

and accordingly Defendant’s conviction should not be disturbed. 

III. Remaining Contentions

We find no merit to Defendant’s remaining arguments. The

lineup in which Bolaños identified Defendant was reasonable,

Valeria’s in-court identification was proper, and the evidence was

more than sufficient to support the conviction.

Conclusion

The judgment of the district court is AFFIRMED.