United States v. Casellas-Toro , 807 F.3d 380 ( 2015 )

United States Court of Appeals
for the First Circuit
No. 14-1933
UNITED STATES OF AMERICA,
Appellee,
v.
PABLO CASELLAS-TORO,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Joseph R. Goodwin, U.S. District Judge]
Before
Benton,* Sentelle,** and Jordan,***
Circuit Judges.
Martin G. Weinberg, with whom Kimberly Homan and Francisco
Rebollo-Casalduc were on brief for appellant.
Kirby A. Heller, Attorney, Appellate Section, Criminal
Division, U.S. Department of Justice, with whom Wifredo A. Ferrer,
United States Attorney, Michael E. Gilfarb, Assistant United
States Attorney, Andy R. Camacho, Assistant United States
Attorney, Leslie R. Caldwell, Assistant Attorney General, and
* Of the Eighth Circuit, sitting by designation.
** Of the District of Columbia Circuit, sitting by designation.
*** Of the Third Circuit, sitting by designation
Sung-Hee Suh, Deputy Assistant Attorney General, were on brief for
appellee.
December7, 2015
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BENTON, Circuit Judge. Pablo Casellas-Toro appeals from
a final judgment of conviction, assigning as error the district
court’s denials of his motions to change venue and to suppress
evidence. Having jurisdiction under 28 U.S.C. § 1291, this court
reverses and remands.
I.
On June 17, 2012, Casellas reported he was a victim of an
armed carjacking. The next day, he spoke with an FBI agent. He
claimed he was driving to the shooting range when he heard gunshots
break his back window. He saw two people running from the car.
A third person forced him to stop his car and ordered him to move
to the passenger’s seat. Casellas said he escaped, climbing out
the car window after being shot in the arm. Police found the car
nearby. Casellas reported two guns missing from the car.
On June 25, Casellas gave the FBI written consent to search
his car for evidence about the carjacking. The FBI took custody
of the car. On July 9, the FBI scheduled the search for July 16.
Casellas called the FBI four times, asking, “Have you done the
search, can I have my car back?” After the search on July 16, the
FBI obtained a warrant for a more detailed search of the car, which
took place August 13.
On July 14, Casellas’s wife was murdered. He was the prime
suspect. His murder trial began December 10, 2013. The
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Commonwealth alleged he staged the carjacking to make the murder
weapon “stolen”. A jury convicted him on January 22, 2014.
Eight days later, a federal grand jury indicted him on three
counts of making false statements to a federal officer, based on
his account of the carjacking. A week later, the Commonwealth
court sentenced Casellas to 109 years’ imprisonment for the murder.
The next day, he made his first appearance in federal court.
Immediately after Casellas’s wife was murdered in July 2012,
the media began extensively covering the case. Casellas moved to
transfer the federal trial to another venue, arguing the pretrial
publicity about his murder conviction prevented a fair and
impartial jury in Puerto Rico. He submitted to the district court
an analysis of the publicity as well as a sampling of newspaper
articles, videos, and online blogs. The district court described
the publicity:
Hours after the discovery of [Casellas’s wife’s]
body, “just about every” news media outlet in Puerto
Rico descended upon Mr. Casellas’s home and remained
there for the day. Several tabloid news programs
immediately made the murder investigation the main focus
of their programming. Television, radio, internet, and
print media outlets in Puerto Rico “have continuously,
intensely and uninterruptedly covered the Casellas case
virtually on a daily basis.”
Many facts about the murder investigation were
leaked to the media, including the substance of Mr.
Casellas’s interview with police and the condition of
the victim’s body at the crime scene. The media
published and broadcast a number of allegedly false
rumors about Mr. Casellas, including that he was a drug
user, that he threatened people with firearms, that he
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was involved in a hit-and-run vehicle accident, and that
he drunkenly bragged about assassinating the then-
governor of Puerto Rico.
Although local authorities summoned Mr. Casellas
to the Bayamon courthouse for the filing of charges, he
was intercepted outside the courthouse, arrested, and
Mirandized in public in view of media personnel who
broadcast the event live. Members of the media “covered
every minute of every day” of the commonwealth trial
which ran from December 10, 2013, to January 22, 2014.
Many reporters tweeted the trial testimony verbatim.
Cameras followed the defendant, his family, and his
lawyers during breaks.
Citizens celebrated outside the courthouse and an
entire stadium of people attending a baseball game
erupted into cheers upon news of the guilty verdict in
the commonwealth case. Television coverage of the
Casellas verdict received the top Nielson rating for
that month. The Supreme Court of Puerto Rico permitted
the media to broadcast Mr. Casellas’s sentencing live on
television, internet, and radio.
Adding to the sensational nature of the Casellas
murder case is the fact that the defendant’s father is
a United States District Judge. The media scrutinized
Judge Casellas for appearing at the scene of the crime
on the morning of the murder, and some local attorneys
called for Judge Casellas’s resignation.
(internal citations omitted).
The United States Attorney did not oppose the transfer,
agreeing Casellas made “a prima facie showing about the pervasive
nature of the coverage” of the murder case. The government did
urge the court to begin voir dire and “see what happens.” The
district court noted, “I can’t think that you could get any further
on the prejudicial publicity continuum than we are.” The court
added that “the rules . . . provide specifically for change of
venue in circumstances, if not like this, so near this that I’m
having considerable difficulty in making the call.” Since the
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court could not “confidently presume” “this far in advance of
trial” that it would be “virtually impossible” for Mr. Casellas to
obtain a fair trial”, it reserved ruling.
Voir dire began April 7, 2014 — two months after the
sentencing for murder. The court asked the venire, totaling about
160, if anyone had heard of Casellas. There was, according to the
court, “almost an unanimous show of hands.” Those who had heard
of Casellas were individually questioned in a separate room.
These interviews followed a similar format: The court asked the
potential juror to tell it what he or she knew about Casellas; the
sources of the information, including whether he or she watched
Casellas’s Commonwealth sentencing and discussed it with anyone;
whether he or she had any opinions about Casellas; and whether he
or she could put aside any knowledge and be fair. The court
permitted counsel to recommend follow-up questions.
After interviewing 20 potential jurors, the court heard
arguments on the change-of-venue motion. It asked the government:
Why strain to find a jury here which simply on paper
says it can be fair but has such extensive knowledge of
wrongdoing by the defendant that no one can say with
certainty that they won’t be heavily influenced by that
bias when they make the evidentiary connection between
the two cases, and why not go somewhere else where nobody
ever heard of [Casellas]?
The government responded, “The case against him for murder was
pervasive here on the island. That’s not an arguable fact” and
“[Y]ou’re not going to find many people who don’t know something
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about the case.” It also noted that a number of the interviewed
potential jurors indicated they could put aside any opinion and be
fair. The court again asked, “Why not take it somewhere else?”
The government replied, “Well, that certainly would be easier.”
The court nevertheless overruled the motion to change venue,
stating “I certainly agree that we don’t know yet if we can get a
jury” but “there is a sufficient possibility we can get a jury.”
It noted Casellas could renew the motion if necessary. The court
continued to individually interview potential jurors, following
the same format. After two days of interviewing 114 potential
jurors1, the court qualified 35 and ended voir dire.
On April 28, after peremptory challenges, the court empaneled
12 jurors and 2 alternates. The jury convicted Casellas of all
three false-statement counts, but the court granted a motion of
acquittal on two counts. He was sentenced to 21 months’
imprisonment on the final count, to run concurrently with his
Commonwealth sentence. Casellas appeals.
II.
Casellas claims that, by not changing the venue, the district
court violated the Sixth Amendment and Federal Rule of Criminal
Procedure 21. He argues he could not — and did not — receive a
1 Of the 114 interviewed, only 93 potential jurors completed the
interview. The rest were excused before addressing substantive
issues due to hardship, language, or other grounds.
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fair trial in Puerto Rico due to prejudicial pretrial publicity.
This court reviews the denial of a motion for change of venue for
an abuse of discretion. United States v. Quiles-Olivo, 684 F.3d
177, 181 (1st Cir. 2012). “A trial court’s findings of juror
impartiality may be overturned only for manifest error.” Mu’Min
v. Virginia, 500 U.S. 415, 428 (1991) (internal quotation marks
omitted). “[T]he deference due to district courts is at its
pinnacle.” Skilling v. United States, 561 U.S. 358, 396 (2010).
The Sixth Amendment guarantees criminal defendants the right
to trial by an impartial jury. Quiles-Olivo, 684 F.3d at 181,
citing U.S. Const. amend. VI, and Skilling, 561 U.S. at 377. If
“extraordinary local prejudice will prevent a fair trial,” the
trial must be transferred to another district. Skilling, 561 U.S.
at 378 (“The theory of our [trial] system is that the conclusions
to be reached in a case will be induced only by evidence and
argument in open court, and not by any outside influence, whether
of private talk or public print.” (alteration in original) (quoting
Patterson v. Colorado ex rel. Att’y Gen. of Colo., 205 U.S. 454,
462 (1907) (opinion for the Court by Holmes, J.)).
Rule 21 authorizes a change of venue if “the court is
satisfied that so great a prejudice against the defendant exists
in the transferring district that the defendant cannot obtain a
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fair and impartial trial there.” Fed. R. Crim. P. 21(a).2 See
also Quiles-Olivo, 684 F.3d at 182 (“Venue change on grounds of
prejudice will be deemed appropriate where there is an ever-
prevalent risk that the level of prejudice permeating the trial
setting is so dense that a defendant cannot possibly receive an
impartial trial.”).
A fair-trial claim based on venue encompasses two questions:
“first, whether the district court erred by failing to move the
trial to a different venue based on a presumption of prejudice
and, second, whether actual prejudice contaminated the jury which
convicted him.” In re Tsarnaev, 780 F.3d 14, 20 (1st Cir. 2015),
discussing Skilling, 561 U.S. at 358. Casellas claims both
presumed and actual prejudice.
2 The analyses for change of venue under the Constitution and Rule
21 may not be the same. See Skilling, 561 U.S. at 378 n.11
(“Skilling does not argue, distinct from his due process challenge,
that the District Court abused its discretion under Rule 21 by
declining to move his trial. We therefore review the District
Court’s venue-transfer decision only for compliance with the
Constitution.”); id. at 427 (Alito, J., concurring) (“I also do
not understand the opinion of the Court as reaching any question
regarding a change of venue under Federal Rule of Criminal
Procedure 21.”); id. at 446 n.9 (Sotomayor, J., concurring in part
and dissenting in part) (noting courts may change venue under the
Rule even when not constitutionally required). The parties here
do not distinguish between a constitutionally-required, and a Rule
21-required, change of venue. This court assumes, without
deciding, that the analysis is the same.
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A.
A presumption of prejudice is generally “reserved for those
extreme cases where publicity is both extensive and sensational in
nature.” Quiles-Olivo, 684 F.3d at 182 (internal quotation marks
omitted). Prejudice is presumed when a “degree of inflammatory
publicity had so saturated the community such as to make it
virtually impossible to obtain an impartial jury.” See United
States v. Misla-Aldarondo, 478 F.3d 52, 58 (1st Cir. 2007)
(internal quotation marks omitted).3
The “foundation precedent” for presumed-prejudice analysis is
Rideau v. Louisiana, 373 U.S. 723 (1963).4 See Skilling, 561 U.S.
3 This court has described an alternate approach to presuming
prejudice. In addition to “inflammatory publicity [that] has so
saturated a community as to render it difficult to draw an
impartial jury,” the second approach presumes prejudice where
“enough jurors admit to prejudice to cause concern as to any
avowals of impartiality by the other jurors.” United States v.
Orlando-Figueroa, 229 F.3d 33, 43 (1st Cir. 2000) (citing United
States v. Rodriguez-Cardona, 924 F.2d 1148, 1158 (1st Cir. 1991)).
Skilling applies the first approach to analyze presumed prejudice,
and after finding no presumption, discusses admissions of
potential jurors when analyzing actual prejudice. See Skilling,
561 U.S. at 381-84, 389-95. This court finds Casellas
demonstrates a presumption of prejudice under the first approach.
This opinion discusses potential jurors’ admissions when
addressing whether the government can rebut the presumption by
claiming that jurors were impartial.
4The Supreme Court presumed prejudice in two other cases, Estes v.
Texas, 381 U.S. 532, 538 (1965); and Sheppard v. Maxwell, 384 U.S.
333, 363 (1966). Those cases “involved media interference with
courtroom proceedings during trial.” Skilling, 561 U.S. at 382
n.14. Casellas does not claim any media interference during
trial.
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at 379. The defendant’s confession in that case — obtained without
counsel present and filmed without his knowledge — was broadcast
to the community three times shortly before trial. See Rideau,
373 U.S. at 724. The community where the crime occurred had about
150,000 people; about 24,000, 53,000, and 20,000 saw and heard
each broadcast, respectively. Id. Three jurors had seen and
heard the televised confession. Id. at 725. The Supreme Court
noted that “the people of Calcasieu Parish had been exposed
repeatedly and in depth to the spectacle of Rideau personally
confessing in detail to the crimes with which he was later to be
charged.” Id. at 726. Further, “to the tens of thousands of people
who saw and heard it, in a very real sense [the confession] was
Rideau’s trial — at which he pleaded guilty to murder.” Id. The
failure to change venue violated the Constitution’s guarantee of
due process. Id. at 726-27.
In its most recent case on this subject, the Supreme Court
identifies four factors relevant to presuming prejudice: the size
and characteristics of the community, the nature of the publicity,
the time between the media attention and the trial, and whether
the jury’s decision indicated bias. See Skilling, 561 U.S. at
379, 382-84.
By the Skilling factors, prejudice should be presumed in this
case. Examining the size and characteristics of the community,
the district court noted “more than 3 million people live in Puerto
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Rico, mitigating the potential for prejudice among the jurors
ultimately selected.” The district court did acknowledge that
Puerto Rico is “a compact, insular community” that is “highly
susceptible to the impact of local media.” United States v. Moreno
Morales, 815 F.2d 725, 734 (1st Cir. 1987). Compare Tsarnaev, 780
F.3d at 21 (noting Boston is a “large, diverse metropolitan area”
with residents that “obtain their news from a vast array of
sources”); Skilling, 561 U.S. at 382 (noting Houston is the fourth
largest city in the United States, with 4.5 million eligible for
jury duty at the time of trial). And during voir dire the district
court agreed with defense counsel that Puerto Rico seemed to be a
“small” island.
The government agreed the media coverage was “massive” and
“sensational.” See Quiles-Olivo, 684 F.3d at 182. Cf. United
States v. Angiulo, 897 F.2d 1169, 1181 (1st Cir. 1990) (“If the
media coverage is factual as opposed to inflammatory or
sensational, this undermines any claim for a presumption of
prejudice.”). Nor did it oppose Casellas’s change of venue
motion, explaining, “The case against [Casellas] for murder was
pervasive here on the island. That’s not an arguable fact.” The
district court, denying the motion, questioned: “Why strain to
find a jury here which simply on paper says it can be fair but has
such extensive knowledge of wrongdoing by the defendant that no
one can say with certainty that they won’t be heavily influenced
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by that bias when they make the evidentiary connection between the
two cases, and why not go somewhere else where nobody ever heard
of [Casellas]?”
Like the broadcasts of Rideau’s confession, the media here
publicized “blatantly prejudicial information of the type readers
or viewers could not reasonably be expected to shut from sight.”
See Skilling, 561 U.S. at 382. The media reported rumors about
Casellas’s character — that he was a drug user, threatened people
with firearms, was involved in a hit-and-run vehicle accident, and
bragged about assassinating the then-governor of Puerto Rico. The
public took to Facebook and Twitter to publicly discuss Casellas’s
case. Most importantly, the media extensively and sensationally
covered Casellas’s Commonwealth trial, conviction, and sentencing
in a just-concluded case intertwined with this one. The
Commonwealth claimed Casellas lied about the carjacking — the crime
in this case. The Commonwealth used the “fake” carjacking to show
premeditation for the murder. In this case, in a notice of intent
to use evidence, the government stated that the motive for
Casellas’s false statements was to set up a defense to murdering
his wife. The government announced its intent to introduce the
“stolen” guns and projectiles later found in Casellas’s home on
the day of the murder. The district court excluded evidence that
the defendant murdered his wife, but allowed the government to
introduce evidence that the “stolen” guns, as well as discharged
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bullets and casings matching the pistol, were found at Casellas’s
house on July 14. Since virtually the entire venire knew of the
murder, the government told the court during voir dire, “So we’re
saying, you know, they’re related, and then asking [the jurors]
later to pretend that it’s not.”
A jury may be able to disbelieve unfounded opinions of the
media or other people. However, it may have difficulty disbelieving
or forgetting the opinion of another jury, twelve fellow citizens,
that a defendant is guilty in an intertwined, just-concluded case.
See Skilling, 561 U.S. at 383 (“A jury may have difficulty in
disbelieving or forgetting a defendant’s opinion of his own guilt
but have no difficulty in rejecting the opinions of others because
they may not be well-founded.” (quoting United States v. Chagra,
669 F.2d 241, 251-52, n.11 (5th Cir. 1982), overruled on other
grounds by Garrett v. United States, 471 U.S. 773, 794 (1985))).
When some jurors knew of the defendant’s past crimes but no juror
“betrayed any belief in the relevance of [defendant’s] past to the
present case,” there is no presumption of prejudice. Murphy v.
Florida, 421 U.S. 794, 800 (1975). See also Angiulo, 897 F.2d at
1182 (“Mere knowledge or awareness of a defendant’s past . . . is
not sufficient to presume prejudice. More must be shown, such as
the actual existence of a present predisposition against
defendants for the crimes currently charged.”). Here, because the
just-concluded murder case and this case are intertwined, the
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murder conviction “invited prejudgment of his culpability.” See
Skilling, 561 U.S. at 383.
Voir dire in this case occurred two months after Casellas’s
televised sentencing in the murder case. See Tsarnaev,780 F.3d
at 22 (“The nearly two years that have passed since the Marathon
bombings has allowed the decibel level of publicity about the
crimes themselves to drop and community passions to diminish.”).
The government does not dispute that sensational publicity
continued through the start of federal voir dire. Compare Irvin
v.Dowd, 366 U.S. 717, 725 (1961) (finding prejudice when publicity
was extensive in six months before trial), with Skilling, 561 U.S.
at 383 (no prejudice when four years passed between peak of
publicity and trial), Patton v. Yount, 467 U.S. 1025, 1032 (1984)
(same), and Murphy, 421 U.S. at 803 (finding no prejudice when
news about the defendant largely ended seven months before trial).
Finally, in Skilling it was “of prime significance” that the
jury acquitted the defendant on nine counts. See Skilling, 561
U.S. at 383. Here, the jury’s verdict supports a presumption of
juror bias. The jury convicted Casellas of all three counts — and
the court then acquitted him of two, finding the government did
not prove each element of Counts One and Two beyond a reasonable
doubt.
The Skilling factors reveal this to be an extreme case. See
Quiles-Olivo, 684 F.3d at 182. The government cites no case
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denying a presumption of prejudice in a case like this: “Massive”
and “sensational” publicity blanketing the community for two years
before trial; extensive reporting on the defendant’s conviction by
a jury, of an intertwined, heinous crime; televised sentencing
only two months before voir dire. And the government did not
oppose a transfer.
Casellas would be relatively unknown outside Puerto Rico.
Cf. Tsarnaev, 780 F.3d at 22 (noting national coverage of the
case). Instead, he was tried in Puerto Rico, in an atmosphere
that prejudiced the trial’s fundamental fairness. This court
presumes that the pretrial publicity prejudiced Casellas’s ability
to be judged by a fair and impartial jury.
B.
Finding a presumption of prejudice does not resolve the case
because the parties dispute whether it is rebuttable. Finding no
presumption of prejudice, the Supreme Court did not reach this
question in Skilling. Skilling, 561 U.S. at 385 n.18. Compare
Patton, 467 U.S. at 1035 (noting passage of time before second
trial “clearly rebuts any presumption or partiality” that existed
at the time of the initial trial), with Rideau, 373 U.S. at 727(finding prejudice “without pausing to examine a particularized
transcript of the voir dire”). The only circuit directly
addressing this issue found the presumption rebuttable. See,
e.g., Chagra, 669 F.2d 241. See also Coleman v. Kemp, 778 F.2d
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1487, 1541 n.25 (11th Cir. 1985) (assuming without deciding that
presumption is rebuttable), cited favorably by Moreno Morales, 815
F.2d at 739 n. 18.
Assuming the presumption is rebuttable, the government argues
that voir dire was sufficient to seat an impartial jury, pointing
to the court’s individual questioning and excusing potential
jurors whose statements of impartiality it found unbelievable.5
However, rather than reducing concerns of bias, voir dire revealed
the depth of community knowledge of, and hostility to, Casellas.
See Misla-Aldarondo, 478 F.3d at 58 (“A court may judge the
partiality of the community by looking to the ‘length to which the
trial court must go in order to select jurors who appear to be
impartial.’” (quoting Murphy, 421 U.S. at 802-03)). Of the
prospective jurors, 96.6 percent knew about Casellas’s murder of
his wife. Of the 93 potential jurors individually interviewed,
5 Casellas alleges numerous errors in voir dire, including
the court’s failure to use a questionnaire, length of
interviews, and refusal to permit additional peremptory
challenges. Casellas offers no authority that these are
constitutionally required. This court finds no fault with
the district court’s method of conducting voir dire. See
Mu’Min, 500 U.S. at 425-26, 431 (discussing constitutional
requirements for content of voir dire); United States v.
Delgado-Marrero, 744 F.3d 167, 201 (1st Cir. 2014) (“Trial
courts have broad discretion — subject only to the essential
demands of fairness — in determining how to conduct voir
dire.” (internal quotation marks omitted)).
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48 knew of the carjacking. The court excused 60 potential jurors
(65 percent) for cause, which is much higher than almost all the
cases that reject presumed prejudice. See Murphy, 421 U.S. at 803(20 of 78 potential jurors — 26% — excused for cause); Misla-
Aldarondo, 478 F.3d at 59 (13 of 84 potential jurors — 15% —
excused for cause). Cf. Skilling, 561 U.S. at 382 n.15 (12.3% of
Houstonians believed Skilling guilty of crimes); Moreno Morales,
815 F.2d at 735 (finding that about 25% of potential jurors
admitting to disqualifying prejudice is below threshold to presume
bias of rest of venire). Although the Supreme Court in Patton
rejected a presumption of prejudice when 77 percent of the venire
had formed opinion on guilt, the Court emphasized that the trial
“did not occur until four years later, at a time when prejudicial
publicity was greatly diminished and community sentiment had
softened.” Patton, 467 U.S. at 1029, 1032, 1034-35 (noting time
“soothes and erases” and reduces the fixedness of jurors’
opinions).
Casellas’s case is like Irvin, where after extensive
publicity in the months before the trial, 62 percent of the venire
was dismissed for cause. See Irvin, 366 U.S. at 727. (“[T]he
‘pattern of deep and bitter prejudice’ shown to be present
throughout the community” was “clearly reflected in the sum total
of the voir dire examination of a majority of the jurors finally
placed in the jury box.”). The Supreme Court did not doubt that
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“each juror was sincere when he said that he would be fair and
impartial to petitioner.” Id. at 728. However, where “so many,
so many times, admitted prejudice, such a statement of impartiality
can be given little weight.” Id.Of the 14 empaneled jurors, Casellas challenged 11 for cause.
Two of the three not challenged were never individually
interviewed. Compare Skilling, 561 U.S.at 376 (prejudice rejected
when 1 juror challenged for cause), Patton, 467 U.S. at 1036 (1
juror and 2 alternates challenged for cause), and Misla-Aldarondo,
478 F.3d at 58 (1 juror challenged for cause). All of the
challenged jurors knew about the murder conviction, and at least
two knew of the carjacking. Compare United States v. Drougas, 748
F.2d 8, 30 (1st Cir. 1984) (“[O]nly one juror who recalled hearing
anything about the case or its participants was seated and no
defendant specifically challenge[d] his impanelment.”).
The government emphasizes the empaneled jurors’ avowals of
impartiality. True, “juror impartiality . . . does not require
ignorance.” Tsarnaev, 780 F.3d at 28, quoting Skilling, 561 U.S.
at 381. But, “[w]here a high percentage of the venire admits to
a disqualifying prejudice, a court may properly question the
remaining jurors’ avowals of impartiality, and choose to presume
prejudice.” See Angiulo, 897 F.2d at 1181-82. The murder
conviction — combined with knowledge of the carjacking — is
“blatantly prejudicial information of the type readers or viewers
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could not reasonably be expected to shut from sight.” See
Skilling, 561 U.S. at 383. Due to the disqualifying opinions of
two-thirds of the venire and the specific knowledge of the murder
conviction by nearly all jurors and the carjacking by at least two
jurors, the government has not met its burden to rebut the
presumption of prejudice.
The government has not met its burden to show Casellas was
tried by an impartial jury. The voir dire here confirms “an ever-
prevalent risk that the level of prejudice permeating the trial
setting [was] so dense that a defendant [could not] possibly
receive an impartial trial.” Quiles-Olivo, 684 F.3d at 182
(emphasis added). The district court abused its discretion by
denying Casellas’s motion to change venue.6
6 Since this court finds an unrebutted presumption of prejudice,
this opinion need not address Casellas’s second argument — actual
prejudice of the seated jurors. See Quiles-Olivo, 684 F.3d at
182 (noting “if prejudice should not be presumed” the court may
establish prejudice if “the jury was actually prejudiced against
the defendant” (internal quotation marks omitted)); Rodriguez-
Cardona 924 F.2d at 1158 (“As appellant does not claim that the
jury was actually prejudiced against him, nor do we see any
evidence of actual prejudice, our inquiry will focus on whether
the district court should have presumed prejudice.”); Angiulo, 897
F.2d at 1181 (“In determining whether sufficient prejudice existed
to require a change of venue, we must conduct two inquiries: 1)
whether jury prejudice should be presumed given the facts before
us; or 2) if prejudice should not be presumed, whether the jury
was actually prejudiced.” (emphasis added and omitted)).
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III.
Casellas argues that the district court erred in denying his
motion to suppress evidence from the two searches of his car. He
claims that his phone calls to the agents before the first search
implicitly revoked his written consent. Because this issue is
likely to recur at re-trial, if there is one,7 this court addresses
it. See Acosta-Ramirez v. Banco Popular de Puerto Rico, 712 F.3d
14, 15-16 (1st Cir. 2013).
This court reviews de novo any legal conclusions in the denial
of a motion to suppress. United States v. Fermin, 771 F.3d 71,
77 (1st Cir. 2014). This court reviews findings of fact for clear
error, in light most favorable to the ruling. Id. at 76. The
district court’s determination on consent is factual, and this
court reviews the decision for clear error. See United States v.
$304, 980.00 in U.S. Currency, 732 F.3d 812, 820 (7th Cir. 2013)
(“Like the question whether consent was given at all, the question
whether the suspect subsequently withdrew or limited the scope of
his consent is a question of fact that we review for clear
error.”). Cf. United States v. Forbes, 181 F.3d 1, 5-6 (1st Cir.
7 Given the 109-year sentence that Casellas is serving for his
murder conviction, it may fairly be wondered whether re-trial on
a false-statement charge is a sound use of prosecutorial and
judicial resources, but that question is not before this court.
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1999) (reviewing voluntariness of the failure to withdraw consent
for clear error).
Consent is an “established exception[]” to the Fourth
Amendment warrant requirement. Schneckloth v. Bustamonte, 412
U.S. 218, 219 (1973). “Warrantless searches may not exceed the
scope of the consent given. The scope of consent is measured by
a test of objective reasonableness: ‘what would the typical
reasonable person have understood by the exchange between the
officer and subject?’” United States v. Marshall, 348 F.3d 281,
286 (1st Cir. 2003) (quoting Florida v. Jimeno, 500 U.S. 248, 251
(1991)). Cf. United States v. Brown, 345 F.3d 574, 580 (8th Cir.
2003) (“An expression of impatience does not establish an intent
to revoke consent.”).
Casellas gave written consent to search his car on June 25,
without any time limit or other restriction. The FBI first
searched the car on July 16. In the intervening three weeks,
Casellas called the FBI four times. His first call, Casellas
asked if the FBI could return the car because insurance adjusters
needed to inspect it. The next three calls, Casellas asked, “Have
you done the search, can I have my car back?”
After the first search, the FBI believed that any bullets
fired at Casellas may be lodged behind the dashboard or in hard-
to-reach places. On August 6, it obtained a search warrant for
the car — still in police custody — and executed a second search.
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At trial, Casellas moved to suppress evidence from both searches.
The district court denied his motion, finding that the FBI
conducted the search within a reasonable time, that Casellas’s
calls “reaffirmed” his consent, and that there was probable cause
for the warrant-authorized search.
First, there is no precise timeframe to complete a warrantless
search. Cf. Fed. R. Crim. P. 41(e)(2)(A)(i) (stating search
warrant must command the officer “execute the warrant within a
specified time no longer than 14 days”). The car remained in
custody, unsearched, for 21 days. The government claimed it
“could not search the vehicle any sooner because other matters had
precedence.” The district court found that a reasonable person
“would have known such an endeavor would not be conducted
momentarily, but would take some time, especially when the alleged
assailants of the car and the defendant were at large.” While 21
days approaches the outer limit of a reasonable time to complete
a consent search, the district court did not clearly err in finding
the officers “searched the car within a reasonable time for a
carjacking.”
Next, a typical person would understand Casellas’s calls as
inquiries about when the search would be complete. Although
Casellas asked for his car back, he never told the agents not to
search it. He never said his previous consent was no longer valid.
There is no evidence that Casellas’s consent was involuntary or
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that he simply acquiesced to legal authority. See Bumper v. North
Carolina, 391 U.S. 543, 548-49 (1968) (finding consent was not
voluntary when person acquiesced in a search after an officer
asserted having a search warrant).
Casellas argues that the agents could not reasonably believe
his consent was still valid when they conducted the search two
days after he was a suspect in his wife’s murder. Casellas,
however, does not dispute that the government scheduled the search
before the murder and executed it as planned. The district court
did not clearly err in finding that Casellas did not withdraw or
revoke his consent.
Casellas argues that “absent information gleaned during the
July 16, 2012, search” the affidavit and warrant for the second
search lack probable cause. Since the first search was valid,
Casellas has waived any other challenge to the second search
warrant. See Sleeper Farms v. Agway, Inc., 506 F.3d 98, 104 (1st
Cir. 2007) (“[T]his court will only consider arguments made before
this court; everything else is deemed forfeited.”).
IV.
The judgment is reversed. The case is remanded for
proceedings consistent with this opinion, including any retrial.
See Irvin, 366 U.S. at 728 (vacating conviction due to pretrial
publicity and noting defendant “is still subject to custody . . .
and may be tried on this or another indictment”).
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